U.S. District Judge Robert Hinkle decided more than six months ago that Florida cannot deny the right to vote to felons who have served their time behind bars and are genuinely unable to pay “legal financial obligations” as required by a controversial state law passed last year.
But as a trial in a challenge to the law draws to a close, a top Florida elections official told the judge Tuesday the state has not settled on a process that will carry out his ruling and permit people who can’t afford to pay their court-ordered debts to vote.
“We don’t have anything final at this point. We’ve just been chatting about it,” Florida Division of Elections Director Maria Matthews said as she was questioned by Campaign Legal Center attorney Mark Gaber, who is helping represent felons challenging the law.
Matthews, a lawyer, said her office is “crystalizing” the process for identifying felons who have registered to vote and have unpaid legal financial obligations.
The legal financial obligations – court-ordered fines, fees, costs and restitution – are the crux of a class-action lawsuit that could determine whether hundreds of thousands of Floridians can vote in the 2020 presidential election.
Plaintiffs’ lawyers have poked holes in the state’s process throughout the trial, showing that databases used to make decisions about voter eligibility are contradictory or incomplete and records in older cases are difficult or impossible to track down.
And with little more than three months before the Aug. 18 primary elections in Florida, Matthews said her office does not have a procedure for felons to show that they can’t pay their outstanding financial obligations, a key part of an October ruling by Hinkle that imposed a preliminary injunction.
Hinkle in March warned the state’s attorneys to come up with a process to determine whether felons have paid financial obligations as required by the law and whether those felons are unable to do so. He said that procedure needed to be drafted before the trial in the case began on April 27 – or else.
“If the state is not going to fix it, I will,” Hinkle snapped during a March 26 telephone hearing.
Republican legislators included the requirement to pay legal financial obligations in a 2019 law aimed at carrying out a constitutional amendment that restored voting rights to felons “who have completed all terms of their sentences, including parole and probation.” The amendment, approved by more than 64 percent of Florida voters in 2018, excluded murderers and people convicted of sexual felonies.
Testifying in the trial Monday and Tuesday, Matthews said the state is weighing a variety of ways for convicted felons – referred to as “returning citizens” by proponents of what appeared as Amendment 4 on the 2018 ballot – to show they are unable to pay the obligations.
Under one scenario, Matthews said people could seek an “advisory opinion” from the Department of State if her office is unable to determine whether someone who registered to vote had outstanding financial obligations. Matthews relied on a section of Florida law dealing with campaign finance when asked about the advisory-opinion option.
Advisory opinions in elections matters are sought by candidates, political groups or supervisors of elections, Matthews acknowledged. The last time a county elections official requested an advisory opinion on behalf of a voter was 2004, according to Matthews. The most recent advisory opinion posted on the Department of State’s website was issued in October 2018.
Advisory opinions can take from a week to several months to complete, Matthews said.
But Gaber indicated the advisory opinion process could be problematic for voters because their personal information – including data about their finances, sentencing and crimes – would be part of the public record posted online.
Mohammad Jazil, a lawyer who represents Gov. Ron DeSantis and Secretary of State Laurel Lee, asked Matthews if it would be necessary to issue 500 advisory opinions in response to questions from 500 people who want to vote but can’t afford to pay their financial obligations.
“I don’t know. I don’t know that we have ever collectively done an advisory opinion,” she said. “It’s possible. Right now, it envisions that it’s one per question.”
The state is also considering adopting a form similar to those used by courts to determine whether defendants in cases are indigent.
The application forms also have issues, however. In some instances, defendants must be receiving benefits, such as food stamps, to be deemed indigent and thus eligible for a public defender.
Gaber also focused on problems with the state’s vetting procedure for felonies committed in other states. If a felony was committed outside of Florida, that state’s restoration of voting rights procedures are followed to determine whether someone registering to vote in Florida is eligible.
According to a procedure filed in the court case on April 17, Matthews’ office is relying on the procon.org website for information about out-of-state voting rights restoration.
The website has outdated and incorrect information about Florida’s restoration-of-rights process, Gaber demonstrated while questioning Matthews.
For example, a link on “Florida” connects viewers to a press release issued in March 2011 by former Gov. Rick Scott.
The website also includes an explanation of Amendment 4, asserting that, “on Apr. 7, 2020, U.S. District Judge Robert Hinkle ruled that former felons are allowed to vote, even if they owe fines and fees.”
“Obviously, this is wrong. There’s been no such ruling,” Hinkle said, after Gaber read what the website said.
Given the erroneous representation about Florida, Gaber asked Matthews if she was concerned the website’s information about other states “could be similarly inaccurate.”
“Perhaps it gives me pause,” she said.
DeSantis’ administration is fiercely defending the state law, despite a series of decisions pointing toward a final ruling by Hinkle in favor of the plaintiffs, who allege that linking finances and voting rights amounts to an unconstitutional “poll tax.”
In the October preliminary injunction, Hinkle ruled the state cannot deny the right to vote to felons who are “genuinely unable” to pay financial obligations associated with their convictions. The 11th U.S. Circuit Court of Appeals upheld the injunction, which applied only to the 17 named plaintiffs in the case. Hinkle last month granted class certification to plaintiffs, adding potentially hundreds of thousands of felons to the lawsuit.
Confronted by the potential problems with the state’s process, Matthews repeatedly insisted that her office was still developing its process.
When discrepancies can’t be resolved, she said, “We’re going to just err on the side of the voter.”
The trial will conclude Wednesday morning, following closing arguments. Although the judge gave each side an hour to speak, he evoked the dedication at the Battle of Gettysburg while urging the lawyers to be brief.
“The main speaker was a Harvard professor who went on for two hours or so. Very few people in the world know who he was or what he said. The other guy spoke for about two-and-a-half minutes, and what he said is on the wall at the memorial. No, I don’t expect anybody to be quite so succinct or eloquent, but sometimes shorter is better,” Hinkle said.
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