Florida cannot deny people with felony convictions the right to vote simply because they can’t afford to pay fines and fees, a federal judge ruled on Friday. The decision was celebrated by voting rights advocates, but they shouldn’t pop the Champagne just yet. Friday’s decision has an important catch that could wind up helping vanishingly few Floridians. It takes a scalpel to a voter suppression scheme that deserves to be hacked up and discarded altogether.
More than 1 million Floridians’ right to vote has remained an open question since the passage of Amendment 4 in 2018. The amendment was meant to automatically restore the franchise to people who had completed felony sentences. Previously, 1 in 5 black adults in Florida could not vote.
Florida Republicans immediately sought to undermine this reform. In May, GOP legislators passed a law compelling individuals to pay all fines and fees associated with their sentence before registering to vote. Anyone who registers without paying this money faces criminal penalties. Because Florida is a pioneer of “cash-register justice,” those convicted of a crime are saddled with a mountain of court debt—not just restitution but “administrative fees” to fund courts, jails, and law enforcement.
This money is stacked on top of a criminal fines (up to $500,000) and restitution (which is paid not just to victims but also to police officers who happened to work on the case). Florida courts routinely fail to consider a defendant’s ability to pay when imposing all these fines and fees, leaving them indefinitely indebted. For instance, outstanding court fines in the state’s largest county, Miami-Dade, surpass $278 million. In the second-largest county, Broward, people with felony convictions owe $534 million. The best estimates suggest that about 80 percent of otherwise eligible voters have not paid all fines and fees associated with their sentence. Some formerly incarcerated people do not even know they owe these debts; others cannot determine the amount they owe because the state has lost their records.
In response the GOP’s sabotage of Amendment 4, several civil rights groups led by the ACLU filed a lawsuit on behalf of 17 people who registered to vote but fear that they will lose their rights because of outstanding payments. They argued that Republicans had violated the plaintiffs’ constitutional liberties by conditioning their right to vote on their ability to pay. Their suit accused lawmakers of implementing an unconstitutional poll tax and urged a federal court to block the new law altogether.
U.S. District Judge Robert Hinkle declined to grant that sweeping relief in his ruling on Friday. Hinkle agreed that, under the equal protection clause, a state cannot condition the right to vote on someone’s ability to pay fines and fees. “Access to the franchise,” he wrote, quoting the 11th U.S. Circuit Court of Appeals, “cannot be made to depend on an individual’s financial resources.” But Hinkle also concluded that he need not invalidate the entire law to fulfill this constitutional mandate. Instead, he wrote that Florida need only restore suffrage to people who can prove that they are unable to pay their fines and fees.
Hinkle then explained that former felons who cannot pay these debts may regain the right to vote through a multistep process. First, an individual must attempt to register with the county’s supervisor of elections. Second, the supervisor will register them and forward their application to the secretary of state, who’ll screen for felony convictions. Third, the secretary will notify the supervisor if the individual has “a disqualifying conviction.” Fourth, the secretary will give the individual an opportunity to contest this disqualification. At that point, the would-be voter can “establish” that “the reason for failing to pay any outstanding financial obligation was inability to pay.” The individual, not the state, faces the burden of proof in demonstrating an inability to pay. Hinkle acknowledged that “carrying the burden will be difficult.”
This process is astonishingly arduous. Any individual who undertakes it would have to devote extensive time and resources to the endeavor, and potentially hire a lawyer to help. Moreover, Hinkle declared that Florida can compel people to prove their inability to pay fines and fees through “another method of its choosing.” In other words, he left the state ample room to build more hoops through which former felons must jump before casting a ballot.
Worse yet, Hinkle applied his ruling only to the 17 named plaintiffs in the lawsuit before him. Presumably, he took this modest approach because he issued a preliminary injunction. When Hinkle issues his final injunction following more hearings over the next several months, it will likely apply to all Floridians. But there are more than 1 million former felons who owe fines and fees. How many of them can be realistically expected to undergo the strenuous, time-consuming, and potentially expensive task of petitioning for the right to vote? Those who cannot afford to pay their debts surely cannot afford an attorney, either. And they will not be provided one by the state. They’ll face the process alone, an uphill battle against an unwieldy bureaucracy that seems determined to deny suffrage to as many people as possible.
Hinkle’s decision is certainly better than nothing. But just barely. In fairness, the underlying problem here is that Amendment 4 was probably not intended to force people to pay off fines and fees. Republicans exploited its ambiguous language to insert this requirement, subverting the spirit of the law. But the Florida Supreme Court has final say over the meaning of the state constitution, and Hinkle noted that it “can be predicted with substantial confidence” that the court will read Amendment 4 to encompass monetary obligations. It is, after all, the most conservative state Supreme Court in the country. No one seriously expects its 6–1 Republican majority to construe Amendment 4 differently from the GOP-controlled Legislature.
Still, even if Republicans are correct about Amendment 4, it’s clear that their law goes too far. It looks a lot like a poll tax and openly conditions the right to vote on an individual’s wealth, a flagrant equal protection violation. Floridians who attempt to exercise their rights have to leap over countless hurdles, including Hinkle’s fix, with no guarantee of success—a substantial burden on their due process rights. The right to cast a ballot, to engage in the most fundamental form of political expression, is not supposed to depend on the amount of money in your bank account. Hinkle sought to tweak Republicans’ law when, in reality, their entire scheme is an unconstitutional assault on lower-income voters.
A handful of other states, most notably Tennessee, impose similarly labyrinthian and onerous rules on formerly incarcerated individuals seeking to vote. It is highly effective in keeping hundreds of thousands of citizens from the polls. A more enlightened judiciary would knock down these invidious barriers to ballot access, but the current Supreme Court may well uphold them. Hinkle may have sought to do the best he could without getting his decision overturned by a higher court. For more than 1 million Floridians, it will not be nearly enough.