In November 2018, Florida amended its state constitution to restore voting rights to nearly 1.5 million ex-felons “upon completion of all terms of [their] sentence including parole or probation.” The ballot initiative, known as “Amendment 4,” was organized by Floridians for a Fair Democracy and spearheaded by Desmond Meade — an Orlandoan who overcame a felony conviction and homelessness to graduate from law school — only to be denied the right to vote for his wife when she ran for the state legislature. Despite the success of Amendment 4, the Florida Supreme Court recently ruled that nearly 80% of the ex-felons who could have been enfranchised by Amendment 4 cannot vote until they have paid the fines and fees associated with their sentence. This decision ignores the intent of Florida’s voters and disproportionately disenfranchises Black citizens and ex-felons in Republican counties.
After Amendment 4’s passage, the Republican-controlled state legislature passed a law defining “completion of all terms of sentence” to include repayment of any financial obligations associated with the sentence. These financial obligations include fines, restitution to victims, and fees for using the court system, such as a $150 charge for using a public defender. Seventeen ex-felons, the NAACP, and the League of Women Voters of Florida challenged this law in federal court in Kelvin Leon Jones v. Ron DeSantis. They sought a preliminary injunction to stop the bill from being implemented and alleged that the legislature had unconstitutionally deprived newly enfranchised citizens of their right to vote under the Fourteenth and Twenty-Fourth Amendments.
Judge Hinkle refused to fully enjoin implementation of the law but held that the state could not disenfranchise citizens for failing to fulfill their financial obligations if they were in fact unable to pay them. However, he noted that Florida’s court fees might actually function as a tax on defendants because courts impose these assessments to generate revenue without tying the fees to a specific benefit since defendants pay regardless of whether they take advantage of the adjudicative process or plead guilty. Such “poll taxes” misuse the government’s taxing power to restrict the right to vote and are expressly forbidden by the Twenty-Fourth Amendment, which was adopted in the wake of Jim Crow era poll taxes enacted to disenfranchise Black Americans. Judge Hinkle left the task of interpreting the phrase “all terms of sentence” for the Florida Supreme Court since it involved questions of Florida state constitutional law, and as such, was not for federal courts to decide.
On January 16, the Florida Supreme Court addressed this question in a per curiam decision issued in response to an advisory opinion request from Governor DeSantis. The court held that Amendment 4 conditioned ex-felons’ right to vote on the repayment of financial obligations associated with their sentence. This decision was based on a purely textualist analysis which interpreted the phrase “all terms of sentence including parole or probation” to encompass restitution, fines, and fees. Although the court noted that Floridians for a Fair Democracy, Amendment 4’s sponsor, had stated that the ex-felons would have to repay fines and fees during the initial hearing on whether the amendment was fit for the ballot, it was careful to say that the sponsor’s intent did not influence the court’s opinion. Justice Labarga concurred in the result and dissented in part because he would have placed greater weight on the sponsor’s intent.
Both the majority and Justice Labarga improperly relied on tools of interpretation adapted to understand legislation drafted and passed by professional legislators, not ordinary citizens. Rather than focusing on what the plain meaning of “completion of all terms of sentence including parole and probation” would be to an ordinary citizen, the court turned to technical tools like the Florida Rules of Criminal Procedure and Black’s Law Dictionary to define “sentence.” In so doing, the court ignored the noscitur a sociis canon and the reality that laypersons are likely to think of penalties related to time and confinement when the word “sentence” is placed in the context of “parole” and “probation” — not court fees.
While Justice Labarga was correct in arguing that the drafters’ intent is relevant, voters’ intent is far more important for direct ballot initiatives. Although the court pointed to a voters’ guide drafted by the ACLU stating that reenfranchisement was conditioned on payment of fines and restitution, it failed to demonstrate that voters knew court fees must be paid too. Nor did it account for the intent of voters who had not received the third-party voters’ guide.
Attention to voters’ understanding of Amendment 4 is critical given the profound implications of the court’s decision. In upholding the legislature’s flawed implementation of Amendment 4, the Florida Supreme Court unduly infringed on the voting rights of Black citizens and ex-felons living in Republican counties. Nearly 18% of Black citizens of voting age have a felony record, and imposing barriers on ex-felons’ ability to vote disproportionately excludes Black voters from the political process. Although the legislature allowed courts to waive ex-felons’ financial obligations on an individual basis, waivers are left to the discretion of courts. This has resulted in a skewed grant of clemency as courts in Democratic-leaning counties have instituted waiver programs while courts in Republican-leaning counties have not.
This contrasts sharply with the usual process of granting clemency through the governor’s office, which offers individuals an equal chance of having their sentence waived regardless of where they live. In failing to adopt a uniform, statewide rule for forgiving financial obligations, Florida arbitrarily disenfranchises ex-felons based on where they live, Such arbitrary discrimination was forbidden by the United States Supreme Court in Bush v. Gore — another case concerning Florida elections — which held that states must adopt uniform rules in determining whose votes count.
The Florida Supreme Court’s recent decision allows the state legislature to undo much of the progress of Amendment 4 and fails to protect the voting rights of ex-felons. This raises serious constitutional concerns that necessitate the intervention of federal courts.