A federal judge ruled Sunday that Florida’s pay-to-vote law is unconstitutional when applied to ex-felons who are eligible to vote but genuinely unable to pay.
Historically, under Florida law, convicted felons may be disenfranchised from voting. Recently, however, Amendment 4 was passed to restore the voting rights of felons, except those convicted of murder or a felony sexual offense, “upon completion of all terms of sentence including parole or probation.” In its 2019 session, the Florida Legislature passed SB7066, which defined the completion of a criminal sentence to include a financial obligation and that those obligations must be paid for the person to be eligible to vote.
In the 125-page opinion, Judge Robert Lewis Hinkle said “[a] state may disenfranchise felons and impose conditions on their reenfranchisement. But the conditions must pass constitutional scrutiny.” In this group of consolidated cases, Hinkle determined that the law does not pass scrutiny.
A legal financial obligation, or LFO, is the amount a criminal defendant must pay. It is an amount determined by the state that includes flat fees for every felony committed, clerk fees and costs for remittance to the Florida Department of Revenue. In a recent Eleventh Circuit case, Jones v. Governor of Florida, the court ordered that an LFO cannot render a person ineligible to vote if they are genuinely unable to pay the fee.
Additionally, Hinkle said that it was not clear what “completion” of terms meant because when the governor asked the Supreme Court for an advisory opinion on the law, he explicitly stated he was not looking for an opinion on that issue. Hinkle said that this “is important, because ‘completion’ could reasonably be construed to mean payment to the best of a person’s ability, bringing Amendment 4, though no SB7066, into alignment with the plaintiff’s inability to pay argument and Jones.”
In his review of the case, Hinkle applied heightened scrutiny to the pay-to-vote system’s treatment of citizens who are unable to pay the amount. This was the level of scrutiny applied to Jones, as well. The reason heightened scrutiny applied was because of the wealth classification while applying rational-basis review to the system as it applied to citizens able to pay.
Moreover, the court considered the US Constitution’s Twenty-Fourth Amendment, which states that a citizen’s right to vote in a federal election “shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.” Relying on the Supreme Court’s decision in National Federation of Independent Businesses v. Sebelius, the landmark Affordable Care Act case, in which the Supreme Court held that individual mandate was a permissible use of legislative power under the Tax and Spending clause, Hinkle said that the fees imposed on convicted felons was an “other tax,” and fell under the Twenty-Fourth Amendment’s prohibition on poll taxes.
In conclusion, the court stated that Florida’s “pay-to-vote system is unconstitutional as it applied to individuals who are otherwise eligible to vote but are genuinely unable to pay the required amount,” but “[t]he requirement to pay a determinable amount of fines and restitution as a condition of voting is not unconstitutional as applied to those who are able to pay.”