Joseph Klein, Frontpage Magazine, February 26, 2020
A three-judge federal appeals court panel of the 11th Circuit ruled last week that a Florida law limiting the voting rights of certain felons who served their prison, parole and probation time, but did not fully complete all the terms of their sentences, was unconstitutional. It remanded the case to the lower court for further consideration and blocked enforcement of the law pending the final outcome of the case.
The Florida law was a follow-up to a state constitutional amendment approved by Florida’s voters in 2018 that allowed felons to vote upon “upon completion of all terms of sentence including parole or probation.” Previously, anyone convicted of a felony in Florida lost their voting rights for life. The state legislature’s law, struck down by the federal appeals court, had sought to clarify that “completion” of a convicted felon’s sentence should include payment of all legal financial obligations associated with the sentence, such as restitution to the victims and and payment of all fines. Florida’s own Supreme Court had upheld the law in an advisory opinion. The federal appeals court judges, however, decided that the law violated the equal protection clause of the U.S. Constitution because it was a form of “wealth discrimination” against poorer felons.
The federal court essentially admitted in its decision that Florida could have continued denying all convicted felons the right to vote for life if the state constitutional amendment had not been passed. What the court condemned was what it considered to be a two-tier system: “The felon with money in the bank will be re-enfranchised. But the felon who can’t will continue to be barred. Merely because the State could strip the rights of both felons does not mean it can continue punishment for some and not others.”
The federal appeals court’s decision is preposterous on its face. Florida’s constitutional amendment itself used the words “upon completion of all terms of sentence” (emphasis added) as the requirement that convicted felons must meet in order to be eligible for restoral of their voting rights. The subsequent statute simply stated the obvious – “all terms of sentence” mean not only the incarceration phase but also the payment of restitution to the victims of the felons’ crimes together with the payment of fines and court costs that were all part of the sentence.
The court’s decision placed the burden on Florida’s government to distinguish, among the pool of convicted felons eligible for potential re-enfranchisement, between those “who are indigent and genuinely unable to pay despite good faith efforts” and those who can pay but are trying to avoid their obligation. This is a vague standard that imposes significant administrative costs on the state. No worries, the court declared. “In defining ‘genuine inability to pay,’ the State is free to consider any reasonable factors including current assets and liabilities, income, and bona fide efforts the felon has made to pay,” the court explained.
How exactly is Florida’s government supposed to go about investigating the felons’ “current assets and liabilities, income” in order to verify their claims of indigence and genuine inability to pay? Is the government supposed to depose all non-paying felons who were released from jail and completed their probation or parole? Should it demand their complete financial records, including a listing of all sources of income, deposits and expenditures, as well as those of their immediate families? Should it conduct a search of their residences to look for hidden assets? The ACLU will be in court the next day claiming invasion of privacy.
The federal appeals court judges also focused on the limited number of plaintiffs in the case. It said that the state “has had, and still has before upcoming elections, ample time to provide” the opportunity for the 17 named plaintiffs in the case to demonstrate their “indigence and inability to pay for reasons beyond their control.” Even if that were so, what about the many thousands of additional convicted felons, with their jail sentences, parole, and/or probation behind them, who will undoubtedly piggyback on this decision? Will Florida’s government, eager to avoid being embroiled in endless case-by-case litigation over who is genuinely indigent and unable to pay their full debt to society as part of their sentences, simply fold up the tent? If so, the legitimate interest of the felony victims to be made whole for the injuries they suffered as a result of the felons’ criminal conduct will be subordinated to the purported “rights” of the victims’ attackers.
There is another fundamental question that goes to the legitimacy of the vote by Florida’s citizens in 2018 to approve the state constitutional amendment restoring the right to vote to convicted felons who had completed their sentences. Would the result have been different if they were clearly informed that “completion of all terms of sentence” did not apply to restitution and fines owed by a potentially large number of convicted felons relying on “an inability to pay” exception? The federal court judges could not care less. “It is altogether unclear whether the people of Florida would have voted differently if they knew that the Amendment they adopted could not be constitutionally applied to those felons who were genuinely unable to pay despite their good faith efforts to do so,” the judges concluded. How about finding out by putting the court decision on hold and giving Florida voters another chance to consider the amendment to their constitution on voting rights for felons who have completed their sentences – this time with a full explanation of what they are voting for?
The federal appeals court decision undermines the sovereignty of the state of Florida and its citizens to determine whether and under what facially neutral conditions convicted felons in their state are permitted to vote in Florida’s elections once they truly complete their sentences.