On Monday, a major hearing is set to take place in Tallahassee that will set the tone of a challenge to a Florida law that opponents have called a “poll tax.”
The law, SB 7066 was passed by the Florida Legislature in May and signed by Gov. Ron DeSantis. Among other things, it requires that people with felony convictions pay all their “financial obligations” that are part of their sentence before they regain the right to vote.
The law itself was passed in response to Amendment 4, which was overwhelmingly approved by Florida voters last November. The constitutional amendment made it so that most people with felony convictions “automatically” regain the right to vote once they complete “all the terms of their sentence including parole or probation.”
And to round out the flash history, Amendment 4 was passed to change a Jim Crow-era system that effectively banned people with felony convictions from voting for life. The only way to regain the right to vote was through a clemency process before the Governor and Cabinet. The success of clemency cases varied greatly, depending on who was governor, and a federal court struck down that process as unconstitutional last year, saying it gave "unfettered discretion" to politicians.
Since the passage of Amendment 4, the debate has been centered around this question: what does “all the terms of their sentence” actually mean? Parole and probation are explicitly included, but what about all the things that aren’t in there?
Namely — what about money?
The hearing on the constitutionality of SB 7066 is happening in the U.S. District Court in Tallahassee, and lawyers expect that it could last for several days. Technically, the hearing is about a push from the plaintiffs — a slew of Floridians with felony convictions and nonprofit groups — who are trying to temporarily block the law. The hope is that by blocking it at least temporarily, thousands of people with felony convictions could still be able to register to vote in municipal elections that are happening across the state next month, and in federal primary elections next March. Followed, of course, by the 2020 general election.
Regardless of what Judge Robert Hinkle decides, the case is expected to move forward. Whatever Judge Hinkle orders could help determine the momentum of the case in the long term, and potentially open up the ballot box to many in the short term.
Think of it, then, as a fork in the road, not the end of the road.
What are the stakes of the case?
On one side, there is well over $1 billion at stake in this case. And on the other, the right to vote for unknown thousands of Floridians hangs in the balance.
Earlier this year, Miami-Dade County’s Clerk of Courts office told WLRN that it has $278 million in fines relating to felony convictions that have not been paid off. And that number only dates back to 2000, so the actual amount is much larger. Palm Beach County told us that it is owed $195.8 million in fines for all past years. The Sun-Sentinel has since reported that $534 million in fines related to felonies are owed in Broward County.
That puts the total at more than $1 billion owed in South Florida alone. And there are 64 other counties across the state.
According to our analysis of statewide data from the Florida Clerks and Comptrollers association from 2013 to 2018, only 19 percent of money owed in felony fines was paid back per year.
And between 2014 and 2018, a full 83 percent of the fines were labeled by the group as having “minimal collections expectations,” meaning the courts know they are unlikely to ever receive payment on the debt because the defendant is too poor to pay.
This is remarkably in line with what Daniel Smith, a professor and chair of political science has found in his research. He is an expert witness in the challenge against SB 7066.
In his expert witness report, Smith studied data from 48 out of 67 counties across Florida (he wasn’t able to get all the data — more on that further down). He found 82.4 percent of people with felony convictions that he has data from wouldn’t be able to vote under SB 7066, because they owe some kind of money.
While one of the major claims in the case is that, in addition to stopping people from voting because of financial constraints, there are important racial disparities at play. Black people with felony convictions are disproportionately impacted by the law, the suit argues.
Black voters tend to vote with the Democratic Party. The Legislature that approved the law requiring that fees be paid, and the Governor who signed it, are Republicans.
In Smith’s expert report, he found broad racial disparities. For instance, in Palm Beach and Sarasota counties, "fewer than one in 10 black individuals who have otherwise met all the terms of their sentence have paid off all their [financial obligations], whereas more than one in five comparable white individuals have done so.”
In Indian River County, that ratio rises to fewer than one in 20 black individuals having paid all their financial obligations, compared to one in 10 white individuals having done so, according to Smith’s analysis.
But Smith stresses that this data is preliminary, and not conclusive. That’s because it’s virtually impossible to get statewide data on this issue. Which brings us to the next section.
Why is there so much confusion about who can vote?
The simple answer is that the state doesn’t know what it’s doing. Or if we want to put it in more neutral terms, up to this point, the state hasn’t figured out how to track the data it needs to track to implement SB 7066. That’s not an opinion — it’s been admitted multiple times by top state officials in depositions taken for this case.
Let’s start with Maria Matthews, the director of the Florida Division of Elections in the Department of State.
In her deposition, Matthews said there is no one place the Department of State can go to to verify if someone is eligible to vote or not. That’s because the necessary data is kept in different places, across state and local governments. And even as SB 7066 passed and has gone into effect, there’s no way for those data sources to communicate.
“You are talking about agencies that each have systems that are created and need to be able to talk to each other and share data,” said Matthews. She said efforts to get those systems to communicate with each other are “ongoing right now.”
Another thing is that SB 7066 outlines that the financial obligations that determine someone’s right to vote have to be part of the “sentencing document” — an actual legal form that outlines the sentence. But Matthews’ staff is not trained to read those kind of legal documents to make the kind of judgment calls that the state law now is asking them to make.
“My staff has not looked at court documents in the way that the law is now going to require us to look at it, so we are trying to get some guidance from the clerk of the courts as to what we see currently in terms of court documents,” Matthews said. “Every clerk of court has some different records and format in which the sentence and judgment might appear. So my staff is going to have to look at it at a different — at a more intense level than they have previously.”
Some county clerk of courts offices — like Duval County, where Jacksonville is — routinely don’t provide sentencing documents upon request, Matthews said. She added that other counties, like Brevard, seem to frequently misplace the necessary documents.
In Miami-Dade, the most populous county in the state, a lot of the necessary documents are actually held by the Miami-Dade Police Department, a situation that is causing headaches, Matthews said.
“What this means is that my staff is then not able to proceed [in verifying someone’s right to vote],” said Matthews. “We do not have an established relationship with the police department for court records.”
Overall, there’s a tangle of agencies involved in the process of verifying someone’s voting eligibility. The Department of State, the Florida Department of Corrections, the Florida Department of Law Enforcement and local Supervisors of Elections are some of the biggest players. But ultimately, a lot rests in the hands of the clerks of court — a county-level position.
Each of Florida’s 67 counties has its own clerk or courts office with its own records system for tracking past criminal cases. Some keep those records digitally, some don’t. Some track cases and money owed going back decades, others don’t. Some track money owed that has been sent to collection agencies, others don’t. There is a statewide data system that holds some of this information, but it is not a complete picture.
“I don't know where you go, a one-stop shop, to get something that says you've paid all your fines and fees,” said Toshia Brown, the chief of Voter Registration Services at the Department of State’s office, in a deposition. “I don’t know how they would be able to get that information.”
This means that if someone with a felony conviction is trying to confirm that they are eligible to vote, it’s nearly impossible to do so in many cases. If someone checks a box on the registration form saying they have had their rights restored when they technically haven’t could face criminal penalties — another felony, to be exact.
Brown said that if there is any confusion, a person should not fill out a voter registration form.
“You are affirming that you know that you are eligible,” said Brown, “so I would not register to vote.”
There are 12 county Supervisors of Elections involved as defendants in the court case, and they are equally stumped when it comes to verifying if someone is eligible to vote. In his deposition, Leon County Supervisor of Elections Mark Earley said it’s a “tough thing” for someone to be able to figure out if they are eligible or not.
Asked what someone should do if they can’t figure it out on their own, Earley offered a few words of advice.
“Get a good lawyer,” he said.
What do the people who are against it say?
According to Gov. Ron DeSantis and Attorney General Ashley Moody, the plaintiffs should have never been able to bring this case because it’s about the process of getting voting rights back, not about the right to vote itself.
“This case concerns the standards for felon re-enfranchisement — not burdens on the right to vote,” a court filing from the Governor and Attorney General reads. “Felons forfeit their right to vote under Florida law when they chose to commit their crimes.”
They also point to a conversation before the state Supreme Court, in which a co-author of Amendment 4 said that financial obligations would be included in “all the terms” of a sentence. The American Civil Liberties Union of Florida — a plaintiff in the lawsuit — and other groups also supported this interpretation, until they didn’t.
But the individual plaintiffs bringing the lawsuit are people with felony convictions who say that conditioning voter re-enfranchisement on being able to pay financial obligations is unconstitutional. And, they argue it’s often too complicated to figure out whether they still owe money or not.
Plaintiff Betty Riddle has felony convictions going back to 1975 in different jurisdictions, and she has been unable to find out what, if any money, she owes for those older cases.
“It's just crazy that they would go to that length to stop us from voting,” she told WLRN before the suit was filed, referring to the passage of SB 7066.
Riddle said that she "celebrated like it was 1999," the night that Amendment 4 was passed by Florida voters. But once the bill requiring her to pay all her outstanding fines, fees and outstanding civil liens passed the Legislature, her outlook changed.
"It was like you were given this joy and then they just ripped it back from you," she said. "That was my breaking point that made me want to join a lawsuit."
Plaintiff Clifford Tyson, a black pastor from Tampa who was convicted of two robberies in the 1970s, and several other felonies in the late 1990s, has gone through the efforts to track down what he owes.
Tyson said in the sworn statement that he found God and has turned his life around. He registered to vote on Jan. 8, the day Amendment 4 went into effect, and has since voted in two municipal elections, in March and in April.
But after SB 7066 was signed into law, Tyson has become uncertain about his eligibility to vote. He has checked four sources to try to verify what he might owe — the original judgment; the Hillsborough County Clerk of Court Events/Documents page; the Hillsborough County Clerk of Court Financial page; and a report from the Florida Department of Law Enforcement. Each lists a different amount he owes for his past crimes.
“I am not sure which of these records is correct,” Tyson said in a sworn statement for the case. “I cannot determine the precise amount of my outstanding costs, fines, and fees because of discrepancies in my records. However, I am unable to pay the outstanding amount, which appears to total in the thousands of dollars. I am also physically disabled, which limits my ability to work, and live on a fixed income.”
Tyson said that he fears he will now be removed from the voter registration rolls and that he will now become ineligible to vote all over again.
“If not for SB7066, I would continue to exercise my vote, and I would vote in the next election in Hillsborough County, which is the presidential primary on March 17, 2020,” he said.
What are the potential outcomes?
There are a few things that can happen within the next week.
One is that Judge Hinkle temporarily blocks SB 7066, and thousands of Floridians with felony convictions would be able to register to vote again, the way Tyson did between when Amendment 4 went into effect and SB 7066 went into effect.
Or, not. If the law is not blocked, the court battle will continue forward for the foreseeable future, until there is ultimately some kind of resolution. In the meantime, thousands of people with felony convictions will lack clarity about whether they are legally able to vote or not.
In a phone call early in this case, Judge Hinkle brought up another scenario: what if the language in Amendment 4 itself — the “all terms of the sentence” — is unconstitutional or unworkable? Because if that’s what is underpinning a lot of the problems having to do with SB 7066, that could be something that needs to be addressed in some way.
"Does it mean that Amendment 4 is unconstitutional and we're back to where we were before it passed?" asked Hinkle.
And of course, there’s the potential that something we can’t foresee will happen. But these are the most likely scenarios.
On a separate and parallel track, Gov. DeSantis has asked the Florida Supreme Court to review some of the facts of the case and to issue a non-binding advisory opinion. It has nothing to do with this federal case, but could give some clarity as to how some of these arguments would do in the more conservative state court. (Judge Hinkle, who is handling the federal case, was appointed by President Clinton.) Oral arguments before the state Supreme Court for that case are scheduled for Nov. 6.
Safe to say, the stakes are high and we will be watching it closely.