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Voter Suppression Via Administrative Ineptitude

Imagine the state you live in requires having automotive insurance to be allowed to drive, BUT underwriting and brokerage are handled solely by the state. Imagine further that the state won’t tell you how much you owe and for what ‘coverage,’ but if you have enough funds to pay the *mystery amount* you’ll receive a certificate of coverage. If you don’t have enough funds, you can still pay on a payment plan that might -- or might not --- give you sufficient credit to obtain the insurance necessary to drive. You can always choose to drive in good faith as if you have valid coverage, but if you turn out to be wrong, well…the state could criminally prosecute you.

Such is the voting registration system the State of Florida has devised to allow former felons to register to vote following passage by voters of Amendment 4 to Florida’s constitution, and by its legislature of SB7066. It is a system permeated by lack of administrative transparency, absence of needed resources, and impossibility of compliance. Moreover, the stakes for failing to comply are high: a citizen who runs afoul of the voter registration requirements risks criminal prosecution. On May 24, 2020 Judge Hinkle of the U.S. District Court of the Northern District of Florida excoriated the result as a ‘pay-to-vote’ system, which he concluded not only lacked rationality, but was ‘bizarre.’ 

When Amendment 4 passed in 2018, it automatically restored the right to vote to individuals who had completed their sentence (including parole or probation) so long as they had not been convicted of murder or a felony sexual offense. Here's one Florida citizen who was thrilled to have registered:

In 2019, the Republican-controlled legislature took the position that the Amendment was not self-executing, and adopted SB7066 as an implementing statute. The plaintiffs challenging SB7066’s impact on Amendment 4 included organizations, such as the NAACP and the League of Women Voters, as well as 17 individual plaintiffs, and also felons in Florida as a class. The affected class extends to nearly one million citizens. 

SB7066 added several conditions to Amendment 4’s requirements. Most critically, before a former felon may register to vote, s/he must have paid all outstanding fines, fees, penalties and restitution set forth in the sentencing document. The court refers to these as “LFOs”: legal financial obligations. The evidence introduced at trial showed that this seemingly straightforward requirement has often proved intractable because ascertaining the amount owing is impossible. Some of the evidence included:

  • Florida does not maintain a centralized database for election officials to check if former felons have paid outstanding amounts.  

  • For a plaintiff convicted between 1975-88 in two different Florida counties, the Clerks of Court were unable to find the relevant records. For a later felony, the State Department of Law Enforcement says the plaintiff owes $1800, but the court records identified do not match this amount.

  • “A group of well-trained, highly educated individuals—a professor specializing in this field with a team of doctoral candidates from a major research university—made diligent efforts over a long period to obtain information on 153 randomly selected felons. They found that information was often unavailable over the internet or by telephone and that, remarkably, there were inconsistencies in the available information for all but 3 of the 153 individuals.” See Opinion p. 45.

  • Judgments are often written in such a way that the nature of the amount owing is unclear (e.g., whether amounts are in respect of a felony charge vs. a misdemeanor).

After reviewing the obstacles to calculating the amount of LFOs owed, the court found, “18 months after adopting the pay-to-vote system, the State still does not know which obligations it applies to. And if the State does not know, a voter does not know. The takeaway: determining the amount of a felon’s LFOs is sometimes easy, sometimes hard, sometimes impossible.” See Opinion p. 47.

In cases where a former felon has been making payments, the difficulty in determining any remaining balance is even greater, in part because Florida has chosen to use two “completely inconsistent methods for applying payments.” The original method used by the State is referred to as the ‘actual-balance method.’ The State’s records turned out to be incomplete and inconsistent, particularly in older cases, and payments did not match obligations. Thus, constitutional concerns about the legitimacy of that method became apparent even before trial. At trial, expert analysis of the actual-balance method showed inconsistencies for 98% of a random sample of cases. See Opinion p.p. 52-53. 

The court used one plaintiff’s example as illustration: “an extraordinarily competent and diligent financial manager in the office of the Hillsborough County Clerk of Court, with the assistance of several long-serving assistants, bulldogged Mr. Tyson’s case for perhaps 12 to 15 hours. The group had combined experience of over 100 years. They came up with what they believed to be the amount owed. But even with all that work, they were unable to explain discrepancies in the records.” See Opinion p. 53 (emphasis added). 

Shortly before trial, Florida switched to a new method, which the opinion refers to as the ‘every-dollar method.’ This method ascribes credit for all amounts paid, regardless of whether they are received from the felon, by the State or whether it is in respect of the specific obligation in the sentence. 

To compare the two methods, assume a felon owes $300 in fines and the County imposed a $25 fee to set up a payment plan, then assigned collection of the $300 to a third-party agency. If the felon paid $160, and the collection agency deducted a $60 fee, the result under the actual-balance method was:

$300 + $25 = $325 total amount owed, of which only $300 was in the judgment

$160 paid - $60 collection agency fee = $100 actually received by county

Balance owing before the citizen may vote: $225

Under the every-dollar method, the result would be different:

$300 is the amount due (the $25 fee is not added to the amount owing for purposes of calculating the LFO)

 $300 - $160 paid = $140 (the $60 collection agency fee isn’t factored in) 

Even though a former felon would pay less under the every-dollar method, after reviewing a range of different scenarios, the court found  it actually worsened the State of Florida’s case:

"The State’s principal justification for the pay-to-vote system is that a felon should be required to satisfy the felon’s entire criminal sentence before being allowed to vote—that the felon should be required to pay the felon’s entire debt to society. But the every-dollar method gravely undermines this debt-to-society rationale. Under the every-dollar approach, most felons are no longer required to satisfy the criminal sentence."

See p. 59. The court rejected the every-dollar approach as “conceived only in an effort to shore up the State’s flagging position in this litigation, and renders the pay-to-vote system more irrational, not less...the takeaway for the administrability analysis is this: even using the every-dollar method, determining the amount of payments allocable to LFOs is sometimes easy, sometimes hard, sometimes impossible.” See Opinion p.63.

Another critical defect in the State’s administration of its post-Amendment 4 system is its inadequate staffing. Under Florida law, a budget analysis is required for each piece of proposed legislation. SB7066 resulted in a former felon’s voter registration application necessitating confirmation there was no murder or felony sexual conviction; completion of parole or probation; and no outstanding LFOs. It was estimated that the Secretary of State’s Division of Elections would need to add at least 21 more staff members to conduct the required review. However, none was added. 

As of the date of trial, the Division had 85,000 pending requests from felons requiring review. Eighteen months after passage of Amendment 4, the Division has not completed a single review. See Opinion p. 65. Analysis respecting the offenses and probation requirements has commenced, but in respect of the LFOs, the Division had not even begun reviewing a single application, with the exception of the 17 individual plaintiffs in the case! And even there, the review is preliminary and not a single one of the 17 has been completed.

Without a change, the prospects for former felon voters are grim: leaving aside the LFO element, the current staff can complete 57 applications/day. At the current rate, that process would be completed by 2026. “With a flood of additional registrations expected in this presidential election year, the anticipated completion date might well be pushed into the 2030s.” See Opinion p. 66. 

The details regarding the administrative mire created by the State of Florida offer a stunning illustration of how insidious voter suppression is in its 21st-century guise. The plaintiffs argued this system violated the equal protection clause of the 14th Amendment. Judge Hinkle agreed, finding that regardless of which standard of review is applied, “[t]he pay-to-vote system does not survive heightened or even rational-basis scrutiny as applied to individuals who are unable to pay and just barely survives rational-basis scrutiny as applied even to those who are able to pay.” See Opinion p. 72.

Turning to the question of whether the post-SB7066 approach results in a poll tax, Judge Hinkle noted Florida has chosen to fund its criminal justice system through imposition of fees and costs. He concluded a requirement to pay such amounts as a condition to felons’ being allowed to vote does constitute an impermissible poll tax: 

"The Twenty-Fourth Amendment precludes Florida from conditioning voting in federal elections on payment of these fees and costs. And because the Supreme  Court has held, in effect, that what the Twenty-Fourth Amendment prescribes for federal elections, the Equal Protection Clause requires for state elections, Florida also cannot condition voting in state elections on payment of these fees and costs."

See Opinion p.p. 79-80. Other claims of constitutionally impermissible effects of this system were asserted, but for the sake of brevity, I will leave those aside to focus on (1) the State’s last-gasp argument attempting to save its case, and (2) the remedy Judge Hinkle has crafted to address the system’s deficiencies.

As a final throw-everything-at-the-wall-and-see-what-sticks effort, Florida argued that if it wouldn’t be allowed to collect LFOs from indigent former felons as a condition to their being allowed to vote, the court should set aside Amendment 4 entirely. Judge Hinkle’s outrage crackles:

"The State makes the rather remarkable assertion that if it cannot prevent people who are unable to pay LFOs from voting, then all of Amendment 4 must fall—that even felons who have served all their time, are off supervision, and have paid all amounts they owe cannot vote. This is a breathtaking attack on the will of the Florida voters who adopted Amendment 4. "

See Opinion p. 107 (emphasis added). The court refused to adopt the State’s argument, stating that if the unconstitutional aspects of the scheme were enjoined, the relevant questions were (1) whether the remainder could be applied, and (2) would voters have approved it in such form? Judge Hinkle answered resoundingly ‘yes,’observing:

"The voters’ primary motivation plainly was to restore the vote to deserving felons at the appropriate time—to show a measure of forgiveness and to welcome even felons back into the electorate. The sentiment is hardly surprising. Forgiveness is a sentiment that appeals to most voters and has long been a mainstay of the state’s most popular religions. And taxation without representation led a group of patriots to throw lots of tea into a harbor when there were barely united colonies, let alone a United States."

See Opinion p. 109-110.

In response to evidence that former felons were refraining from voting, even where registered, because of the uncertainties about outstanding LFOs, the State had testified that such persons did not need to fear prosecution; instead, they should seek an advisory opinion as to their status. In crafting a remedy for the unconstitutional aspects of Florida’s system, Judge Hinkle turned to this suggestion and prescribed a form for indigent former felons to request an advisory opinion. The opinion also prescribed rules for when a former felon is entitled to register to vote. 

The State’s approach to repayment of LFOs was not entirely dismantled: the decision found that for former felons who have the means to pay outstanding LFOs, the requirement that they do so before registering to vote is constitutional. Where however, an individual is indigent and submits the form stating an inability to pay outstanding LFOs, the State has 21 days to respond. If the Division of Elections fails within 21 days to challenge the claimed inability to pay, the would-be voter is entitled to register to vote (assuming all other conditions of Amendment 4 are met) and the State may not subsequently prosecute the person for registering or for voting. The court was careful to note however, that would-be registrants are not required to seek an advisory opinion.

Judge Hinkle’s decision is bold and focused on practicability. It allows for would-be registrants’ applications to be addressed immediately (or at longest, 3 weeks after filing a request for an advisory opinion). However, Governor DeSantis has already said the State of Florida will appeal. In the meanwhile, the District Court’s decision will be in force, unless the State of Florida obtains a stay (either from the same court -- unlikely -- or from the 11th Circuit Court of Appeals). 

Prior to trial, the 11th Circuit had already ruled that the State of Florida cannot condition voting on the payment of an amount a person is genuinely unable to pay. Therefore, it seems unlikely that the 11th Circuit would issue a stay of the District Court’s final decision consistent with the Circuit Court’s ruling. If the Circuit Court refuses to issue a stay, the State could seek redress with the U.S. Supreme Court, but given the reputational challenges the Court faces and the politically sensitive cases already being decided this year (respecting access to President Trump’s tax returns), choosing to issue a stay in a voting rights case just before a presidential election seems likely further to inflame criticisms of the Roberts-led Court’s partisanship. 

The District Court decision constitutes a full-throated denunciation of bureaucratic incapacity and ineptitude as obstructions to citizens’ accessing their fundamental right to vote. This is a significant victory for inclusive democracy. For those wishing to support that aim, the question now is how to reach and encourage the maximum number of affected Florida citizens to encourage thesm to register before the October 5 deadline for the November 3 general election.

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