By Dara Kam, The News Service of Florida
TALLAHASSEE — A federal judge on Tuesday excoriated lawyers representing Gov. Ron DeSantis’ administration, accusing the state of trying to “run out the clock” to keep felons from voting in next year’s elections.
The acrimony between U.S. District Judge Robert Hinkle and the state’s attorneys came during a hearing in a legal battle over a constitutional amendment designed to restore voting rights to felons who have completed terms of their sentences.
The controversy is centered on whether felons have to pay legal financial obligations, such as restitution, fines and fees, to be able to vote. The Republican-dominated Legislature approved a law this spring that required payment of such obligations, drawing a legal challenge from civil-rights and voting-rights groups.
Hinkle ruled in October that it is unconstitutional to deny the right to vote to felons who are “genuinely unable” to pay financial obligations. In a preliminary injunction, Hinkle said state officials need to come up with an administrative process in which felons could try to prove that they are unable to pay financial obligations and should be able to vote.
The state appealed Hinkle’s ruling to the 11th U.S. Circuit Court of Appeals.
In a subsequent motion asking Hinkle to put the case on hold amid the appeal, lawyers for DeSantis and Secretary of State Laurel Lee argued that a decision upholding the federal judge’s ruling could render the entire constitutional amendment void because of a lack of “severability.” Under the legal concept of severability, an unconstitutional portion of a law can be eliminated while the rest of the law remains intact. The state maintains that if any part of the felons’ rights amendment is struck down, the entire amendment is void.
Only the Florida Supreme Court can decide whether Hinkle’s ruling would change the amendment so much that Floridians would not have supported the proposal, the state’s lawyers argued in the motion filed Nov. 18. The Florida justices are poised to issue an advisory opinion requested by DeSantis on whether the amendment requires payment of legal financial obligations.
“It is unlikely that Florida voters would have permitted felons to recapture their voting rights without fully repaying their debt to society,” the state’s lawyers wrote in the federal court motion.
But Hinkle, who repeatedly raised his voice while questioning the state’s lawyers, grew increasingly incensed as he spent two hours Tuesday attempting to ascertain whether the papers filed on the governor’s behalf accurately reflected a statement issued by DeSantis’ office in response to the judge’s October ruling.
In the statement, DeSantis spokeswoman Helen Ferré wrote that Hinkle’s decision affirmed the governor’s position that convicted felons be held responsible for paying restitution, fees and fines while also recognizing “the need to provide an avenue for individuals unable to pay back their debts as a result of true financial hardship.”
The discrepancy between the court filings and Ferré’s statement prompted Hinkle to ask, “Is it the governor’s position that Amendment 4 is a complete nullity,” even if a person is unable to pay legal financial obligations.
“I want to be sure that you don’t just bury it in your papers, that you say it here in public,” the judge asked Nicholas Primrose, deputy general counsel for DeSantis.
Primrose said “what voters thought” they were voting on is a “question that has to be addressed.”
The “indigency exception” created by Hinkle in his ruling would “broaden” what some voters believed they passed, he argued.
But Hinkle wasn’t satisfied, asking Primrose to answer whether it was a nullity or not.
“I’m not sure I can accurately express the governor’s position,” Primrose said, reiterating that the “very critical question of severability” needs to be addressed.
“I’m not accustomed to people coming and saying, ‘Here’s a critical question but I’m not going to tell you my position on it,’ ” Hinkle responded.
Hinkle pressed Lee’s lawyer, Mohammad Jazil, on the same issue.
“Our fear is that … the severability analysis … would suggest that Amendment 4 cannot be severed,” Jazil began.
But Hinkle interrupted him.
“I really don’t want the lawyers’ analysis,” the judge said. “This is a question that the secretary is going to have to take a position and the governor’s going to have to take a position.”
Jazil said the state disagrees with Hinkle’s interpretation requiring an exemption for felons who cannot pay their legal financial obligations. Because the state does not believe the amendment can be severed, it would be void if Hinkle’s ruling is upheld, Jazil said.
“That, we believe, is an absurd outcome,” he added.
The judge continued to tangle with Primrose and Jazil until the state’s lawyers finally conceded the court filings reflected their bosses’ positions.
“We stand by our papers,” Jazil said.
Primrose said DeSantis had approved everything that had been filed on his behalf, and that the amendment would be null if Hinkle’s analysis of the amendment was correct.
“We don’t believe your analysis is correct,” which is why the state appealed, he added.
Hinkle scolded the state on other matters, as well.
Chiding the state for failing to move forward with a process to allow felons who can’t afford to pay their financial obligations to register to vote, Hinkle asked the state what the “irreparable harm” would be in proceeding with the process while the appeal plays out.
Primrose said the state did not want to begin the process until the appellate court had ruled because of the amount of work involved.
“The possibility of tens of thousands or hundreds of thousands of individuals” registering to vote create a heavy workload for state and local elections officials, Primrose argued. And, if the state wins the appeal, those people would have to be removed from the voting rolls, he said.
“So the irreparable harm’s the administrative burden,” Hinkle asked.
“Yes, your honor,” Primrose said.
Hinkle appeared troubled that the time it will take before the appellate court rules will interfere with people’s ability to register to vote in time for the March presidential primary elections.
Leah Aden, a lawyer who represents the NAACP Legal Defense Fund, told Hinkle the state is “going mute” and leaving voter-registration groups “at a loss for what to do.”
It’s “chilling people” because “the state is unwilling to say” what the process is, Aden argued.
Hinkle said the court system determines whether defendants are indigent before their cases are resolved.
The state could establish that defendants who were deemed indigent at the time of their last felony conviction are currently unable to pay their court-ordered fees and fines and allow them to register and vote, Hinkle suggested.
Primrose said “there’s a lot of disagreement” between the plaintiffs and the state on a process to move forward, drawing another rebuke from Hinkle.
“If you really want to comply with the Constitution and let everyone who’s eligible to vote vote, pretty easy,” the judge said. “You put in place a constitutional system, it won’t matter if they (plaintiffs) like it or not. What you can’t do is to run out the clock so that people who are eligible to vote don’t get to vote in the March primary or, more importantly, in the presidential election.”