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LEAD_CASE

U.S. District Court Northern District of Florida (Tallahassee) CIVIL DOCKET FOR CASE #: 4:19-cv-00300-RH-MJF

JONES et al v. DESANTIS et al Assigned to: JUDGE ROBERT L HINKLE Referred to: MAGISTRATE JUDGE MICHAEL J FRANK Cause: 28:1651 Petition for Writ of Mandamus

Date Filed: 06/28/2019 Date Terminated: 05/26/2020 Jury Demand: None Nature of Suit: 441 Civil Rights: Voting Jurisdiction: Federal Question

Plaintiff KELVIN LEON JONES

represented by MICHAEL A STEINBERG 4925 INDEPENDENCE PKWY STE 195 TAMPA, FL 33634 813-221-1300 Fax: 813-221-1702 Email: frosty28@aol.com ATTORNEY TO BE NOTICED

Plaintiff BONNIE RAYSOR

represented by BLAIR S BOWIE CAMPAIGN LEGAL CENTER WASHINGTON DC 1101 14TH STREET NW SUITE 400 WASHINGTON, DC 20005 202-736-2200 Fax: 202-736-2222 Email: bbowie@campaignlegal.org ATTORNEY TO BE NOTICED

CHAD W DUNN BRAZIL & DUNN - MIAMI FL 1200 BRICKELL AVE SUITE 1950 MIAMI, FL 33131 305-783-2190

Fax: 305-783-2268 Email: chad@brazilanddunn.com ATTORNEY TO BE NOTICED
DANIELLE MARIE LANG CAMPAIGN LEGAL CENTER WASHINGTON DC 1101 14TH STREET NW SUITE 400 WASHINGTON, DC 20005 267-205-0578 Email: dlang@campaignlegalcenter.org ATTORNEY TO BE NOTICED
JONATHAN MICHAEL DIAZ CAMPAIGN LEGAL CENTER WASHINGTON DC 1101 14TH STREET NW SUITE 400 WASHINGTON, DC 20005 202-736-2200 Fax: 202-736-2222 Email: jdiaz@campaignlegal.org ATTORNEY TO BE NOTICED
MARK P GABER CAMPAIGN LEGAL CENTER WASHINGTON DC 1101 14TH STREET NW SUITE 400 WASHINGTON, DC 20005 202-736-2200 Email: mgaber@campaignlegalcenter.org ATTORNEY TO BE NOTICED
MOLLY ELIZABETH DANAHY CAMPAIGN LEGAL CENTER WASHINGTON DC 1101 14TH STREET NW SUITE 400 WASHINGTON, DC 20005 202-736-2200 Fax: 202-736-2222

Plaintiff
DIANE SHERRILL INDIVIDUALLY AND ON BEHALF OF OTHERS SIMILARLY SITUATED

Email: mdanahy@campaignlegal.org ATTORNEY TO BE NOTICED
represented by BLAIR S BOWIE (See above for address) ATTORNEY TO BE NOTICED
CHAD W DUNN (See above for address) ATTORNEY TO BE NOTICED

DANIELLE MARIE LANG (See above for address) ATTORNEY TO BE NOTICED

JONATHAN MICHAEL DIAZ (See above for address) ATTORNEY TO BE NOTICED

MARK P GABER (See above for address) ATTORNEY TO BE NOTICED

Plaintiff JEFF GRUVER

MOLLY ELIZABETH DANAHY (See above for address) ATTORNEY TO BE NOTICED
represented by JONATHAN TOPAZ AMERICAN CIVIL LIBERTIES UNION - NEW YORK NY 125 BROAD ST 18TH FL NEW YORK, NY 10004 212-549-2640 Email: jtopaz@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

ANYA ANTON MARINO ACLU FOUNDATION OF FLORIDA INC - MIAMI FL 4343 W FLAGLER STREET SUITE 400 MIAMI, FL 33134

786-363-2707 Email: amarino@aclufl.org ATTORNEY TO BE NOTICED
DANIEL BOAZ TILLEY ACLU FOUNDATION OF FLORIDA INC - MIAMI FL 4343 W FLAGLER STREET SUITE 400 MIAMI, FL 33134 786-363-2714 Fax: 786-363-1257 Email: dtilley@aclufl.org ATTORNEY TO BE NOTICED
DAVID MORRIS GILLER PAUL WEISS RIFKIND ETC - NEW YORK NY 1285 AVENUE OF THE AMERICAS NEW YORK, NY 10019-6064 212-373-3000 Email: dgiller@paulweiss.com ATTORNEY TO BE NOTICED
ELIZA SWEREN-BECKER BRENNAN CENTER FOR JUSTICE - NEW YORK NY 120 BROADWAY NEW YORK, NY 10271 917-597-9040 Email: swerenbeckere@brennan.law.nyu.edu ATTORNEY TO BE NOTICED
JENNIFER A HOLMES NAACP LEGAL DEFENSE AND EDUCATIONAL FUND 700 14TH STREET NW SUITE 600 WASHINGTON, DC 20005 202-217-2728 Email: jholmes@naacpldf.org ATTORNEY TO BE NOTICED
JIMMY MIDYETTE , JR PO BOX 380002

JACKSONVILLE, FL 32205 904-228-4797 Email: jimmy.midyette@gmail.com TERMINATED: 03/24/2020
JOHN SPENCER CUSICK NAACP LEGAL DEFENSE & EDUCATION FUND INC 40 RECTOR STREET 5TH FLOOR NEW YORK, NY 10006 212-965-2200 Email: jcusick@naacpldf.org ATTORNEY TO BE NOTICED
JULIE A EBENSTEIN AMERICAN CIVIL LIBERTIES UNION - NEW YORK NY 125 BROAD ST 18TH FL NEW YORK, NY 10004 212-549-2686 Email: jebenstein@aclu.org ATTORNEY TO BE NOTICED
LEAH CAMILLE ADEN NAACP LEGAL DEFENSE & EDUCATION FUND INC 40 RECTOR STREET STE 5TH FLOOR NEW YORK, NY 10006-1738 212-965-7715 Fax: 212-226-7592 Email: laden@naacpldf.org ATTORNEY TO BE NOTICED
MYRNA PEREZ BRENNAN CENTER FOR JUSTICE 120 BROADWAY SUITE 1750 NEW YORK CITY, NY 10271 646-292-8329 Email: myrna.perez@nyu.edu ATTORNEY TO BE NOTICED
NICHOLAS WARREN

ACLU FOUNDATION OF FLORIDA INC - MIAMI FL 4343 W FLAGLER STREET SUITE 400 MIAMI, FL 33134 786-363-1769 Email: nwarren@aclufl.org ATTORNEY TO BE NOTICED
PIETRO JOHN SIGNORACCI PAUL WEISS RIFKIND ETC - NEW YORK NY 1285 AVENUE OF THE AMERICAS NEW YORK, NY 10019-6064 212-373-3000 Email: psignoracci@paulweiss.com ATTORNEY TO BE NOTICED
RODKANGYIL ORION DANJUMA AMERICAN CIVIL LIBERTIES UNION - NEW YORK NY 125 BROAD ST 18TH FL NEW YORK, NY 10004 212-549-2563 Email: odanjuma@aclu.org ATTORNEY TO BE NOTICED
SEAN MORALES-DOYLE BRENNAN CENTER FOR JUSTICE - NEW YORK NY 120 BROADWAY SUITE 1751 NEW YORK, NY 10271 646-292-8363 Email: moralesdoyles@brennan.law.nyu.edu ATTORNEY TO BE NOTICED
WENDY ROBIN WEISER BRENNAN CENTER FOR JUSTICE 120 BROADWAY SUITE 1750 NEW YORK CITY, NY 10271 646-292-8310

Plaintiff
EMORY MARQUIS MITCHELL MARQ

Fax: 212-463-7308 Email: wendy.weiser@nyu.edu ATTORNEY TO BE NOTICED
represented by JONATHAN TOPAZ (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ANYA ANTON MARINO (See above for address) ATTORNEY TO BE NOTICED
DANIEL BOAZ TILLEY (See above for address) ATTORNEY TO BE NOTICED
DAVID MORRIS GILLER (See above for address) ATTORNEY TO BE NOTICED
ELIZA SWEREN-BECKER (See above for address) ATTORNEY TO BE NOTICED
JENNIFER A HOLMES (See above for address) ATTORNEY TO BE NOTICED
JOHN SPENCER CUSICK (See above for address) ATTORNEY TO BE NOTICED
JULIE A EBENSTEIN (See above for address) ATTORNEY TO BE NOTICED
LEAH CAMILLE ADEN (See above for address) ATTORNEY TO BE NOTICED
MYRNA PEREZ (See above for address) ATTORNEY TO BE NOTICED

Plaintiff BETTY RIDDLE

NICHOLAS WARREN (See above for address) ATTORNEY TO BE NOTICED
PIETRO JOHN SIGNORACCI (See above for address) ATTORNEY TO BE NOTICED
RODKANGYIL ORION DANJUMA (See above for address) ATTORNEY TO BE NOTICED
SEAN MORALES-DOYLE (See above for address) ATTORNEY TO BE NOTICED
WENDY ROBIN WEISER (See above for address) ATTORNEY TO BE NOTICED
represented by JONATHAN TOPAZ (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ANYA ANTON MARINO (See above for address) ATTORNEY TO BE NOTICED
DANIEL BOAZ TILLEY (See above for address) ATTORNEY TO BE NOTICED
DAVID MORRIS GILLER (See above for address) ATTORNEY TO BE NOTICED
ELIZA SWEREN-BECKER (See above for address) ATTORNEY TO BE NOTICED
JENNIFER A HOLMES (See above for address) ATTORNEY TO BE NOTICED

Plaintiff KRISTOPHER WRENCH

JOHN SPENCER CUSICK (See above for address) ATTORNEY TO BE NOTICED
JULIE A EBENSTEIN (See above for address) ATTORNEY TO BE NOTICED
LEAH CAMILLE ADEN (See above for address) ATTORNEY TO BE NOTICED
MYRNA PEREZ (See above for address) ATTORNEY TO BE NOTICED
NICHOLAS WARREN (See above for address) ATTORNEY TO BE NOTICED
PIETRO JOHN SIGNORACCI (See above for address) ATTORNEY TO BE NOTICED
RODKANGYIL ORION DANJUMA (See above for address) ATTORNEY TO BE NOTICED
SEAN MORALES-DOYLE (See above for address) ATTORNEY TO BE NOTICED
WENDY ROBIN WEISER (See above for address) ATTORNEY TO BE NOTICED
represented by JONATHAN TOPAZ (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ANYA ANTON MARINO (See above for address)

ATTORNEY TO BE NOTICED
DANIEL BOAZ TILLEY (See above for address) ATTORNEY TO BE NOTICED
DAVID MORRIS GILLER (See above for address) ATTORNEY TO BE NOTICED
ELIZA SWEREN-BECKER (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
JENNIFER A HOLMES (See above for address) ATTORNEY TO BE NOTICED
JOHN SPENCER CUSICK (See above for address) ATTORNEY TO BE NOTICED
JULIE A EBENSTEIN (See above for address) ATTORNEY TO BE NOTICED
LEAH CAMILLE ADEN (See above for address) ATTORNEY TO BE NOTICED
MYRNA PEREZ (See above for address) ATTORNEY TO BE NOTICED
NICHOLAS WARREN (See above for address) ATTORNEY TO BE NOTICED
PIETRO JOHN SIGNORACCI (See above for address) ATTORNEY TO BE NOTICED
RODKANGYIL ORION DANJUMA (See above for address)

Plaintiff KEITH IVEY

ATTORNEY TO BE NOTICED
SEAN MORALES-DOYLE (See above for address) ATTORNEY TO BE NOTICED
WENDY ROBIN WEISER (See above for address) ATTORNEY TO BE NOTICED
represented by JONATHAN TOPAZ (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ANYA ANTON MARINO (See above for address) ATTORNEY TO BE NOTICED
DANIEL BOAZ TILLEY (See above for address) ATTORNEY TO BE NOTICED
DAVID MORRIS GILLER (See above for address) ATTORNEY TO BE NOTICED
ELIZA SWEREN-BECKER (See above for address) ATTORNEY TO BE NOTICED
JENNIFER A HOLMES (See above for address) ATTORNEY TO BE NOTICED
JOHN SPENCER CUSICK (See above for address) ATTORNEY TO BE NOTICED
JULIE A EBENSTEIN (See above for address) ATTORNEY TO BE NOTICED
LEAH CAMILLE ADEN (See above for address)

Plaintiff KAREN LEICHT

ATTORNEY TO BE NOTICED
MYRNA PEREZ (See above for address) ATTORNEY TO BE NOTICED
NICHOLAS WARREN (See above for address) ATTORNEY TO BE NOTICED
PIETRO JOHN SIGNORACCI (See above for address) ATTORNEY TO BE NOTICED
RODKANGYIL ORION DANJUMA (See above for address) ATTORNEY TO BE NOTICED
SEAN MORALES-DOYLE (See above for address) ATTORNEY TO BE NOTICED
WENDY ROBIN WEISER (See above for address) ATTORNEY TO BE NOTICED
represented by JONATHAN TOPAZ (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ANYA ANTON MARINO (See above for address) ATTORNEY TO BE NOTICED
DANIEL BOAZ TILLEY (See above for address) ATTORNEY TO BE NOTICED
DAVID MORRIS GILLER (See above for address) ATTORNEY TO BE NOTICED
ELIZA SWEREN-BECKER

Plaintiff

(See above for address) ATTORNEY TO BE NOTICED
JENNIFER A HOLMES (See above for address) ATTORNEY TO BE NOTICED
JOHN SPENCER CUSICK (See above for address) ATTORNEY TO BE NOTICED
JULIE A EBENSTEIN (See above for address) ATTORNEY TO BE NOTICED
LEAH CAMILLE ADEN (See above for address) ATTORNEY TO BE NOTICED
MYRNA PEREZ (See above for address) ATTORNEY TO BE NOTICED
NICHOLAS WARREN (See above for address) ATTORNEY TO BE NOTICED
PIETRO JOHN SIGNORACCI (See above for address) ATTORNEY TO BE NOTICED
RODKANGYIL ORION DANJUMA (See above for address) ATTORNEY TO BE NOTICED
SEAN MORALES-DOYLE (See above for address) ATTORNEY TO BE NOTICED
WENDY ROBIN WEISER (See above for address) ATTORNEY TO BE NOTICED

RAQUEL WRIGHT

represented by JONATHAN TOPAZ (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ANYA ANTON MARINO (See above for address) ATTORNEY TO BE NOTICED
DANIEL BOAZ TILLEY (See above for address) ATTORNEY TO BE NOTICED
DAVID MORRIS GILLER (See above for address) ATTORNEY TO BE NOTICED
ELIZA SWEREN-BECKER (See above for address) ATTORNEY TO BE NOTICED
JENNIFER A HOLMES (See above for address) ATTORNEY TO BE NOTICED
JOHN SPENCER CUSICK (See above for address) ATTORNEY TO BE NOTICED
JULIE A EBENSTEIN (See above for address) ATTORNEY TO BE NOTICED
LEAH CAMILLE ADEN (See above for address) ATTORNEY TO BE NOTICED
MYRNA PEREZ (See above for address) ATTORNEY TO BE NOTICED
NICHOLAS WARREN (See above for address) ATTORNEY TO BE NOTICED
PIETRO JOHN SIGNORACCI

Plaintiff STEVEN PHALEN

(See above for address) ATTORNEY TO BE NOTICED
RODKANGYIL ORION DANJUMA (See above for address) ATTORNEY TO BE NOTICED
SEAN MORALES-DOYLE (See above for address) ATTORNEY TO BE NOTICED
WENDY ROBIN WEISER (See above for address) ATTORNEY TO BE NOTICED
represented by JONATHAN TOPAZ (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ANYA ANTON MARINO (See above for address) ATTORNEY TO BE NOTICED
DANIEL BOAZ TILLEY (See above for address) ATTORNEY TO BE NOTICED
DAVID MORRIS GILLER (See above for address) ATTORNEY TO BE NOTICED
ELIZA SWEREN-BECKER (See above for address) ATTORNEY TO BE NOTICED
JENNIFER A HOLMES (See above for address) ATTORNEY TO BE NOTICED
JOHN SPENCER CUSICK (See above for address) ATTORNEY TO BE NOTICED

Plaintiff CLIFFORD TYSON

JULIE A EBENSTEIN (See above for address) ATTORNEY TO BE NOTICED
LEAH CAMILLE ADEN (See above for address) ATTORNEY TO BE NOTICED
MYRNA PEREZ (See above for address) ATTORNEY TO BE NOTICED
NICHOLAS WARREN (See above for address) ATTORNEY TO BE NOTICED
PIETRO JOHN SIGNORACCI (See above for address) ATTORNEY TO BE NOTICED
RODKANGYIL ORION DANJUMA (See above for address) ATTORNEY TO BE NOTICED
SEAN MORALES-DOYLE (See above for address) ATTORNEY TO BE NOTICED
WENDY ROBIN WEISER (See above for address) ATTORNEY TO BE NOTICED
represented by JONATHAN TOPAZ (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ANYA ANTON MARINO (See above for address) ATTORNEY TO BE NOTICED
DANIEL BOAZ TILLEY (See above for address) ATTORNEY TO BE NOTICED

DAVID MORRIS GILLER (See above for address) ATTORNEY TO BE NOTICED
ELIZA SWEREN-BECKER (See above for address) ATTORNEY TO BE NOTICED
JENNIFER A HOLMES (See above for address) ATTORNEY TO BE NOTICED
JOHN SPENCER CUSICK (See above for address) ATTORNEY TO BE NOTICED
JULIE A EBENSTEIN (See above for address) ATTORNEY TO BE NOTICED
LEAH CAMILLE ADEN (See above for address) ATTORNEY TO BE NOTICED
MYRNA PEREZ (See above for address) ATTORNEY TO BE NOTICED
NICHOLAS WARREN (See above for address) ATTORNEY TO BE NOTICED
PIETRO JOHN SIGNORACCI (See above for address) ATTORNEY TO BE NOTICED
RODKANGYIL ORION DANJUMA (See above for address) ATTORNEY TO BE NOTICED
SEAN MORALES-DOYLE (See above for address) ATTORNEY TO BE NOTICED

Plaintiff JERMAINE MILLER

WENDY ROBIN WEISER (See above for address) ATTORNEY TO BE NOTICED
represented by JONATHAN TOPAZ (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ANYA ANTON MARINO (See above for address) ATTORNEY TO BE NOTICED
DANIEL BOAZ TILLEY (See above for address) ATTORNEY TO BE NOTICED
DAVID MORRIS GILLER (See above for address) ATTORNEY TO BE NOTICED
ELIZA SWEREN-BECKER (See above for address) ATTORNEY TO BE NOTICED
JENNIFER A HOLMES (See above for address) ATTORNEY TO BE NOTICED
JOHN SPENCER CUSICK (See above for address) ATTORNEY TO BE NOTICED
JULIE A EBENSTEIN (See above for address) ATTORNEY TO BE NOTICED
LEAH CAMILLE ADEN (See above for address) ATTORNEY TO BE NOTICED
MYRNA PEREZ (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
FLORIDA STATE CONFERENCE OF THE NAACP

NICHOLAS WARREN (See above for address) ATTORNEY TO BE NOTICED
PIETRO JOHN SIGNORACCI (See above for address) ATTORNEY TO BE NOTICED
RODKANGYIL ORION DANJUMA (See above for address) ATTORNEY TO BE NOTICED
SEAN MORALES-DOYLE (See above for address) ATTORNEY TO BE NOTICED
WENDY ROBIN WEISER (See above for address) ATTORNEY TO BE NOTICED
represented by JONATHAN TOPAZ (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ANYA ANTON MARINO (See above for address) ATTORNEY TO BE NOTICED
DANIEL BOAZ TILLEY (See above for address) ATTORNEY TO BE NOTICED
DAVID MORRIS GILLER (See above for address) ATTORNEY TO BE NOTICED
ELIZA SWEREN-BECKER (See above for address) ATTORNEY TO BE NOTICED
JENNIFER A HOLMES (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
ORANGE COUNTY BRANCH OF THE NAACP

JOHN SPENCER CUSICK (See above for address) ATTORNEY TO BE NOTICED
JULIE A EBENSTEIN (See above for address) ATTORNEY TO BE NOTICED
LEAH CAMILLE ADEN (See above for address) ATTORNEY TO BE NOTICED
MYRNA PEREZ (See above for address) ATTORNEY TO BE NOTICED
NICHOLAS WARREN (See above for address) ATTORNEY TO BE NOTICED
PIETRO JOHN SIGNORACCI (See above for address) ATTORNEY TO BE NOTICED
RODKANGYIL ORION DANJUMA (See above for address) ATTORNEY TO BE NOTICED
SEAN MORALES-DOYLE (See above for address) ATTORNEY TO BE NOTICED
WENDY ROBIN WEISER (See above for address) ATTORNEY TO BE NOTICED
represented by JONATHAN TOPAZ (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ANYA ANTON MARINO (See above for address)

ATTORNEY TO BE NOTICED
DANIEL BOAZ TILLEY (See above for address) ATTORNEY TO BE NOTICED
DAVID MORRIS GILLER (See above for address) ATTORNEY TO BE NOTICED
ELIZA SWEREN-BECKER (See above for address) ATTORNEY TO BE NOTICED
JENNIFER A HOLMES (See above for address) ATTORNEY TO BE NOTICED
JOHN SPENCER CUSICK (See above for address) ATTORNEY TO BE NOTICED
JULIE A EBENSTEIN (See above for address) ATTORNEY TO BE NOTICED
LEAH CAMILLE ADEN (See above for address) ATTORNEY TO BE NOTICED
MYRNA PEREZ (See above for address) ATTORNEY TO BE NOTICED
NICHOLAS WARREN (See above for address) ATTORNEY TO BE NOTICED
PIETRO JOHN SIGNORACCI (See above for address) ATTORNEY TO BE NOTICED
RODKANGYIL ORION DANJUMA (See above for address) ATTORNEY TO BE NOTICED

SEAN MORALES-DOYLE (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
LEAGUE OF WOMEN VOTERS OF FLORIDA

WENDY ROBIN WEISER (See above for address) ATTORNEY TO BE NOTICED
represented by JONATHAN TOPAZ (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

ANYA ANTON MARINO (See above for address) ATTORNEY TO BE NOTICED

DANIEL BOAZ TILLEY (See above for address) ATTORNEY TO BE NOTICED

DAVID MORRIS GILLER (See above for address) ATTORNEY TO BE NOTICED

ELIZA SWEREN-BECKER (See above for address) ATTORNEY TO BE NOTICED

JENNIFER A HOLMES (See above for address) ATTORNEY TO BE NOTICED

JOHN SPENCER CUSICK (See above for address) ATTORNEY TO BE NOTICED

JULIE A EBENSTEIN (See above for address) ATTORNEY TO BE NOTICED

LEAH CAMILLE ADEN (See above for address) ATTORNEY TO BE NOTICED

Plaintiff ROSEMARY MCCOY

MYRNA PEREZ (See above for address) ATTORNEY TO BE NOTICED
NICHOLAS WARREN (See above for address) ATTORNEY TO BE NOTICED
PIETRO JOHN SIGNORACCI (See above for address) ATTORNEY TO BE NOTICED
RODKANGYIL ORION DANJUMA (See above for address) ATTORNEY TO BE NOTICED
SEAN MORALES-DOYLE (See above for address) ATTORNEY TO BE NOTICED
WENDY ROBIN WEISER (See above for address) ATTORNEY TO BE NOTICED
represented by CAREN E SHORT SOUTHERN POVERTY LAW CENTER - DECATUR GA 150 EAST PONCE DE LEON AVENUE SUITE 340 DECATUR, GA 30030 404-221-5868 Email: caren.short@splcenter.org ATTORNEY TO BE NOTICED
NANCY GBANA ABUDU SOUTHERN POVERTY LAW CENTER - DECATUR GA PO BOX 1287 DECATUR, GA 30031 404-221-4062 Email: nancy.abudu@splcenter.org ATTORNEY TO BE NOTICED

Plaintiff SHEILA SINGLETON
Plaintiff LUIS A MENDEZ Plaintiff LEE HOFFMAN
Plaintiff CURTIS D BRAYNT

represented by CAREN E SHORT (See above for address) ATTORNEY TO BE NOTICED
NANCY GBANA ABUDU (See above for address) ATTORNEY TO BE NOTICED
represented by MICHAEL A STEINBERG (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by DANIELLE MARIE LANG (See above for address) ATTORNEY TO BE NOTICED
MARK P GABER (See above for address) ATTORNEY TO BE NOTICED
CHAD W DUNN (See above for address) ATTORNEY TO BE NOTICED
represented by ELIZA SWEREN-BECKER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ANYA ANTON MARINO (See above for address) ATTORNEY TO BE NOTICED
DANIEL BOAZ TILLEY (See above for address) ATTORNEY TO BE NOTICED
LEAH CAMILLE ADEN (See above for address) ATTORNEY TO BE NOTICED

Plaintiff JESSE D HAMILTON TERMINATED: 04/09/2020
Plaintiff LATOYA A MORELAND

NICHOLAS WARREN (See above for address) ATTORNEY TO BE NOTICED
represented by ELIZA SWEREN-BECKER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ANYA ANTON MARINO (See above for address) ATTORNEY TO BE NOTICED
DANIEL BOAZ TILLEY (See above for address) ATTORNEY TO BE NOTICED
LEAH CAMILLE ADEN (See above for address) ATTORNEY TO BE NOTICED
represented by ELIZA SWEREN-BECKER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ANYA ANTON MARINO (See above for address) ATTORNEY TO BE NOTICED
DANIEL BOAZ TILLEY (See above for address) ATTORNEY TO BE NOTICED
LEAH CAMILLE ADEN (See above for address) ATTORNEY TO BE NOTICED
NICHOLAS WARREN (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
RON DESANTIS IN HIS OFFICIAL CAPACITY AS THE GOVERNOR OF FLORIDA AN INDISPENSIBLE PARTY

represented by COLLEEN M ERNST OFFICE OF GENERAL COUNSEL 400 SOUTH MAGNOLIA DRIVE SUITE 209 TALLAHASSEE, FM 32301 216-469-3818 Email: colleen.ernst@eog.myflorida.com ATTORNEY TO BE NOTICED
JOSEPH W JACQUOT EXECUTIVE OFFICE OF THE GOVERNOR 400 SOUTH MONROE STREET SUITE 209 TALLAHASSEE, FL 32399 850-717-9310 Email: joe.jacquot@eog.myflorida.com ATTORNEY TO BE NOTICED
JOSHUA E PRATT EXECUTIVE OFFICE OF THE GOVERNOR - TALLAHASSEE FL OFFICE OF THE GENERAL COUNSEL THE CAPITOL RM 209 400 S MONROE ST TALLAHASSEE, FL 32399-0001 850-717-9267 Email: joshua.pratt@eog.myflorida.com ATTORNEY TO BE NOTICED
NICHOLAS ALLEN PRIMROSE EXECUTIVE OFFICE OF THE GOVERNOR 400 S MONROE STREET THE CAPITOL PL-05 TALLAHASSEE, FL 32399 850-717-9310 Fax: 850-488-9810

Defendant CRAIG LATIMER IN HIS OFFICIAL CAPACITY AS SUPERVISOR OF ELECTIONS OF HILLSBOROUGH COUNTY FLORIDA AN INDISPENSIBLE PARTY
Defendant LAUREL M LEE IN HER OFFICIAL CAPACITY AS SECRETARY OF STATE OF THE STATE OF FLORIDA

Email: nicholas.primrose@eog.myflorida.com ATTORNEY TO BE NOTICED
represented by STEPHEN MARK TODD OFFICE OF THE COUNTY ATTORNEY HILLSBOROUGH COUNTY 601 E KENNEDY BLVD 27TH FLOOR TAMPA, FL 33602 813-272-5670 Fax: 813-272-5758 Email: todds@hillsboroughcounty.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ASHLEY E DAVIS FLORIDA DEPARTMENT OF STATE RA GRAY BUILDING 500 SOUTH BRONOUGH STREET SUITE 100 TALLAHASSEE, FL 32399 850-245-6531 Email: ashley.davis@dos.myflorida.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
BRADLEY ROBERT MCVAY FLORIDA DEPARTMENT OF STATE OFFICE OF GENERAL COUNSEL 500 S BRONOUGH STREET TALLAHASSEE, FL 32399 352-219-5195 Email: brad.mcvay@dos.myflorida.com ATTORNEY TO BE NOTICED
EDWARD M WENGER HOPPING GREEN & SAMS TALLAHASSEE FL

119 S MONROE STREET SUITE 300 TALLAHASSEE, FL 32301 850-425-4358 Fax: 850-224-8551 Email: edw@hgslaw.com ATTORNEY TO BE NOTICED
GARY VERGIL PERKO HOPPING GREEN & SAMS PA TALLAHASSEE FL 119 S MONROE ST - STE 300 TALLAHASSEE, FL 32301 850-222-7500 Fax: 850-224-8551 Email: gperko@hgslaw.com ATTORNEY TO BE NOTICED
GEORGE N MEROS , JR HOLLAND & KNIGHT LLP TALLAHASSEE FL 315 S CALHOUN STREET SUITE 600 TALLAHASSEE, FL 32301 850-425-7000 Email: gmeros@shutts.com ATTORNEY TO BE NOTICED
MOHAMMAD OMAR JAZIL HOPPING GREEN & SAMS PA TALLAHASSEE FL 119 S MONROE ST STE 300 TALLAHASSEE, FL 32301 850-222-7500 Fax: 850-521-2733 Email: MJazil@HGSLaw.com ATTORNEY TO BE NOTICED
TARA R PRICE HOLLAND & KNIGHT LLP TALLAHASSEE FL 315 S CALHOUN STREET SUITE 600 TALLAHASSEE, FL 32301 Email: Tara.Price@hklaw.com ATTORNEY TO BE NOTICED

Defendant KIM A BARTON IN HER OFFICIAL CAPACITY AS SUPERVISOR OF ELECTIONS FOR ALACHUA COUNTY
Defendant PETER ANTONACCI IN HIS OFFICIAL CAPACITY AS SUPERVISOR OF ELECTIONS FOR BROWARD COUNTY

represented by CORBIN FREDERICK HANSON ALACHUA COUNTY ATTORNEYS OFFICE - GAINESVILLE FL 12 SE 1ST STREET 2nd Floor GAINESVILLE, FL 32601 352-374-5218 Email: cfhanson@alachuacounty.us ATTORNEY TO BE NOTICED
GEENA MARCELA CESAR ALACHUA COUNTY ATTORNEYS OFFICE - GAINESVILLE FL 12 SE 1ST STREET GAINESVILLE, FL 32601 352-374-5215 Email: gcesar@alachuacounty.us ATTORNEY TO BE NOTICED
ROBERT CHARLES SWAIN ALACHUA COUNTY ATTORNEY'S OFFICE 12 SE FIRST ST PO BOX 2877 GAINESVILLE, FL 32602 352-374-5218 Email: bswain@alachuacounty.us ATTORNEY TO BE NOTICED
represented by ADAM M KATZMAN BROWARD COUNTY ATTORNEYS OFFICE - FORT LAUDERDALE FL 115 S ANDREWS AVE STE 423 FORT LAUDERDALE, FL 33301 954-357-7600 Email: akatzman@broward.org TERMINATED: 08/21/2019
GEORGE N MEROS , JR (See above for address) ATTORNEY TO BE NOTICED

Defendant MIKE HOGAN IN HIS OFFICIAL CAPACITY AS SUPERVISOR OF ELECTIONS FOR DUVAL COUNTY
Defendant LESLIE ROSSWAY SWAN IN HER OFFICIAL CAPACITY AS SUPERVISOR OF ELECTIONS FOR INDIAN RIVER COUNTY

NATHANIEL ADAM KLITSBERG BROWARD COUNTY ATTORNEYS OFFICE - FORT LAUDERDALE FL 115 S ANDREWS AVE STE 423 FORT LAUDERDALE, FL 33301 954-357-7600 Fax: 954-357-7641 Email: nklitsberg@broward.org TERMINATED: 08/21/2019
RENE DEVLIN HARROD BROWARD COUNTY ATTORNEYS OFFICE - FORT LAUDERDALE FL 115 S ANDREWS AVE STE 423 FORT LAUDERDALE, FL 33301 954-357-7600 Fax: 954-357-7641 Email: rharrod@broward.org TERMINATED: 08/21/2019
TARA R PRICE (See above for address) ATTORNEY TO BE NOTICED
represented by CRAIG DENNIS FEISER OFFICE OF GENERAL COUNSEL 117 W DUVAL STREET SUITE 480 JACKSONVILLE, FL 32202 904-255-5052 Fax: 904-255-5120 Email: cfeiser@coj.net ATTORNEY TO BE NOTICED
represented by DYLAN T REINGOLD INDIAN RIVER COUNTY COUNTY ATTORNEYS OFFICE 1801 27TH STREET BUILDING A VERO BEACH, FL 32960

Defendant MARK EARLEY IN HIS OFFICIAL CAPACITY AS SUPERVISOR OF ELECTIONS FOR LEON COUNTY
Defendant MICHAEL BENNETT IN HIS OFFICIAL CAPACITY AS SUPERVISOR OF ELECTIONS FOR MANATEE COUNTY
Defendant CHRISTINA WHITE IN HER OFFICIAL CAPACITY AS SUPERVISOR OF ELECTIONS FOR MIAMI DADE COUNTY

772-226-1427 Email: dreingold@ircgov.com ATTORNEY TO BE NOTICED
represented by MARK HERRON MESSER CAPARELLO & SELF PA - TALLAHASSEE FL 2618 CENTENNIAL PL TALLAHASSEE, FL 32308 850-222-0720 Fax: 850-224-4359 Email: mherron@lawfla.com ATTORNEY TO BE NOTICED
SUMMER DENAY BROWN MESSER CAPARELLO & SELF PA - TALLAHASSEE FL 2618 CENTENNIAL PL TALLAHASSEE, FL 32308 850-425-5209 Fax: 850-558-0657 Email: dbrown@lawfla.com ATTORNEY TO BE NOTICED
represented by MORGAN RAY BENTLEY BENTLEY & BRUNING PA SARASOTA FL 783 SOUTH ORANGE AVENUE SUITE 300 ASARASOTA, FL 34236 941-556-9030 Email: mbentley@bentleyandbruning.com ATTORNEY TO BE NOTICED
represented by MICHAEL BENY VALDES MIAMI-DADE COUNTY ATTORNEYS OFFICE 111 NW FIRST STREET SUITE 2810 MIAMI, FL 33128 305-375-5620 Fax: 305-375-5634

Defendant BILL COWLES IN HIS OFFICIAL CAPACITY AS SUPERVISOR OF ELECTIONS FOR ORANGE COUNTY
Defendant RON TURNER IN HIS OFFICIAL CAPACITY AS SUPERVISOR OF ELECTIONS FOR SARASOTA COUNTY Amicus FLORIDA RIGHTS RESTORATION COALITION

Email: michael.valdes@miamidade.gov ATTORNEY TO BE NOTICED
OREN ROSENTHAL MIAMI-DADE COUNTY ATTORNEYS OFFICE 111 NW FIRST STREET SUITE 2810 MIAMI, FL 33128 305-375-2828 Fax: 305-375-5634 Email: oren.rosenthal@miamidade.gov ATTORNEY TO BE NOTICED
represented by NICHOLAS ARI SHANNIN SHANNIN LAW FIRM PA ORLANDO FL 214 EAST LUCERNE CIRCLE SUITE 200 ORLANDO, FL 32801 407-985-2222 Email: nshannin@shanninlaw.com ATTORNEY TO BE NOTICED
represented by MORGAN RAY BENTLEY (See above for address) ATTORNEY TO BE NOTICED
represented by WHITLEY J CARPENTER 400 W MAIN STREET SUITE 203 DURHAM, NC 27701 703-509-0064 Email: wcarpenter@forwardjustice.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
CHIRAAG BAINS DEMOS - WASHINGTON DC

740 6TH STREET NW STE 2ND FLOOR WASHINGTON, DC 20001 202-864-2746 Email: cbains@demos.org ATTORNEY TO BE NOTICED
DANTE PASQUALE TREVISANI FLORIDA JUSTICE INSTITUTE INC- MIAMI FL 100 SE 2ND ST 3750 BANK OF AMERICA TWR MIAMI, FL 33131 305-358-2081 Fax: 305-358-0910 Email: dtrevisani@floridajusticeinstitute.org ATTORNEY TO BE NOTICED
NAILA S AWAN DEMOS - NEW YORK NY 80 BROAD STREET STE 4TH FLOOR NEW YORK, NY 10004 212-633-1405 Email: nawan@demos.org ATTORNEY TO BE NOTICED

Date Filed 06/28/2019
06/28/2019 06/30/2019

# Docket Text
1 COMPLAINT against Ron Desantis, Laurel Lee, and Craig Latimer filed by Kelvin Leon Jones. (Attachments: # 1 Civil Cover Sheet) (STEINBERG, MICHAEL) Modified docket text on 7/1/2019 (toy). (Entered: 06/28/2019)
2 First MOTION for Leave to Proceed in forma pauperis by Kelvin Leon Jones. (STEINBERG, MICHAEL) (Entered: 06/28/2019)
3 ORDER OF TRANSFER AND CONSOLIDATION WITH PRIORFILED CASE. The Clerk is directed to take all necessary steps to consolidate Case Nos. 4:19cv300, 1:19cv121, and 4:19cv301 for the purposes of case management. They will be maintained on a common docket under Consolidated Case No. 4:19cv300. The Clerk is directed to connect all lawyers from the consolidated cases to Case No. 4:19cv300. A paper that is applicable to any of the consolidated case must be filed in the common docket and must not be filed separately in any other case. Signed

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by CHIEF JUDGE MARK E WALKER on 6/30/2019. (kjw) (Entered: 06/30/2019)
4 DOCKET ANNOTATION BY COURT: Attorney MICHAEL A STEINBERG Re 1 Complaint - Counsel is advised by this entry, that a Civil Cover Sheet should be filed as a separate entry using the event selection "Civil Cover Sheet" which is found under "Other Filings" under "Other Documents". PLEASE RE-FILE THE CIVIL COVER SHEET. (toy) (Entered: 07/01/2019)
5 CIVIL COVER SHEET. (STEINBERG, MICHAEL) (Entered: 07/01/2019)
6 NOTICE of Appearance by NICHOLAS ALLEN PRIMROSE on behalf of RON DESANTIS (PRIMROSE, NICHOLAS) (Entered: 07/01/2019)
7 ORDER GRANTING 2 MOTION TO PROCEED FORMA PAUPERIS. Fee status updated to in forma pauperis. Signed by CHIEF JUDGE MARK E WALKER on 07/02/2019. (toy) (Entered: 07/02/2019)
8 ORDER SETTING TELEPHONIC STATUS HEARING. This Court must hold a hearing on an expedited basis. Accordingly, the Clerk is directed to set a telephonic status hearing on Friday, July 5, 2019. ( Telephonic Hearing Deadline - by 7/5/2019.) Signed by CHIEF JUDGE MARK E WALKER on 07/02/2019. (toy) (Entered: 07/02/2019)
9 NOTICE of Appearance by DANIEL BOAZ TILLEY on behalf of FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, KEITH IVEY, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, JERMAINE MILLER, EMORY MARQUIS MITCHELL, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BETTY RIDDLE, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT (TILLEY, DANIEL) (Entered: 07/02/2019)
10 NOTICE of Appearance by MOHAMMAD OMAR JAZIL on behalf of LAUREL M LEE (JAZIL, MOHAMMAD) (Entered: 07/02/2019)
11 NOTICE of Related Cases by LAUREL M LEE (JAZIL, MOHAMMAD) (Entered: 07/02/2019)
12 NOTICE OF TELEPHONIC HEARING: Telephonic Status Conference set for 7/5/2019 11:00 AM before CHIEF JUDGE MARK E WALKER.

ALL PARTIES are directed to call the AT&T Conference Line (see below)

Conference Call Information

You may dial into the conference call up to five minutes before start time. Call in number: 888-684-8852 When prompted for an access code,

enter: 3853136# If you are asked to join as the host, just ignore and wait until you are asked for a security code. When asked for a security code, enter: 4565# Say your name, when prompted. You are now in the conference call. Remember to mute your phone when you are not speaking. Please also mute your phone if you join the line and a hearing is already in progress. The Court also asks that counsel NOT use cell phones or speaker phones during the call as the quality of the audio connection is comprised by these devices.

07/02/2019 07/02/2019 07/02/2019 07/02/2019 07/02/2019 07/02/2019 07/03/2019 07/03/2019

s/ Victoria Milton McGee Courtroom Deputy Clerk (vkm) (Entered: 07/02/2019)
13 MOTION to Appear Pro Hac Vice by Molly Danahy.( Filing fee $ 201 receipt number AFLNDC-4540304.) by BONNIE RAYSOR, DIANE SHERRILL. (Attachments: # 1 Exhibit (Certificate of Good Standing)) (DANAHY, MOLLY) (Entered: 07/02/2019)
14 MOTION to Appear Pro Hac Vice by Mark P. Gaber.( Filing fee $ 201 receipt number AFLNDC-4540341.) by BONNIE RAYSOR, DIANE SHERRILL. (Attachments: # 1 Exhibit (Certificate of Good Standing)) (GABER, MARK) (Entered: 07/02/2019)
15 MOTION to Appear Pro Hac Vice by Danielle M. Lang.( Filing fee $ 201 receipt number AFLNDC-4540345.) by BONNIE RAYSOR, DIANE SHERRILL. (Attachments: # 1 Exhibit (Certificate of Good Standing)) (LANG, DANIELLE) (Entered: 07/02/2019)
16 AFFIDAVIT of Service for Complaint served on Colleen O'Brien on 07/01/2019, filed by BONNIE RAYSOR, DIANE SHERRILL. (DUNN, CHAD) (Entered: 07/02/2019)
17 ORDER GRANTING ADMISSION TO APPEAR PRO HAC VICE re 13 . Attorney MOLLY ELIZABETH DANAHY for BONNIE RAYSOR and DIANE SHERRILL added. Signed by CHIEF JUDGE MARK E WALKER on 07/02/2019. (toy) (Entered: 07/03/2019)
18 ORDER GRANTING ADMISSION TO APPEAR PRO HAC VICE re 14 . Attorney MARK P GABER for BONNIE RAYSOR and DIANE SHERRILL added. Signed by CHIEF JUDGE MARK E WALKER on 07/02/2019. (toy) (Entered: 07/03/2019)
19 ORDER GRANTING ADMISSION TO APPEAR PRO HAC VICE re 15 . Attorney DANIELLE MARIE LANG for BONNIE RAYSOR and DIANE SHERRILL added. Signed by CHIEF JUDGE MARK E WALKER on 07/03/2019. (toy) (Entered: 07/03/2019)
20 NOTICE of Appearance by ROBERT CHARLES SWAIN on behalf of KIM A BARTON (SWAIN, ROBERT) (Entered: 07/03/2019)

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21 NOTICE of Appearance by OREN ROSENTHAL on behalf of CHRISTINA WHITE (ROSENTHAL, OREN) (Entered: 07/03/2019)
22 NOTICE of Appearance by JIMMY MIDYETTE, JR on behalf of JEFF GRUVER (MIDYETTE, JIMMY) (Entered: 07/03/2019)
23 NOTICE of Appearance by BRADLEY ROBERT MCVAY on behalf of LAUREL M LEE (MCVAY, BRADLEY) (Entered: 07/03/2019)
24 NOTICE Of Unavailability by KIM A BARTON (SWAIN, ROBERT) (Entered: 07/03/2019)
25 MOTION to Appear Pro Hac Vice by Eliza Sweren-Becker.( Filing fee $ 201 receipt number AFLNDC-4540690.) by FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, KEITH IVEY, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, JERMAINE MILLER, EMORY MARQUIS MITCHELL, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BETTY RIDDLE, CLIFFORD TYSON, RAQUEL WRIGHT. (SWERENBECKER, ELIZA) (Entered: 07/03/2019)
26 MOTION to Appear Pro Hac Vice by John S. Cusick.( Filing fee $ 201 receipt number AFLNDC-4541161.) by FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, KEITH IVEY, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, JERMAINE MILLER, EMORY MARQUIS MITCHELL, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BETTY RIDDLE, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT. (Attachments: # 1 Certificate of Good Standing) (CUSICK, JOHN) (Entered: 07/03/2019)
27 MOTION to Appear Pro Hac Vice by Jonathan Diaz.( Filing fee $ 201 receipt number AFLNDC-4541201.) by BONNIE RAYSOR, DIANE SHERRILL. (Attachments: # 1 Exhibit (Certificate of Good Standing)) (DIAZ, JONATHAN) (Entered: 07/03/2019)
28 MOTION to Appear Pro Hac Vice by Caren E. Short.( Filing fee $ 201 receipt number AFLNDC-4541477.) by ROSEMARY MCCOY, SHEILA SINGLETON. (Attachments: # 1 Exhibit Certificate of Good Standing) (SHORT, CAREN) (Entered: 07/03/2019)
29 ORDER GRANTING ADMISSION TO APPEAR PRO HAC VICE re 26 . Attorney JOHN SPENCER CUSICK for FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, KEITH IVEY,LEAGUE OF WOMEN VOTERS OF FLORIDA,KAREN LEICHT, JERMAINE MILLER, EMORY MARQUIS MITCHELL,ORANGE COUNTY BRANCH OF THE NAACP,STEVEN PHALEN, BETTY RIDDLE, CLIFFORD TYSON,KRISTOPHER

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WRENCH, and RAQUEL WRIGHT added. Signed by CHIEF JUDGE MARK E WALKER on 07/03/2019. (toy) (Entered: 07/03/2019)
30 ORDER GRANTING ADMISSION TO APPEAR PRO HAC VICE re 27 . Attorney JONATHAN MICHAEL DIAZ for BONNIE RAYSOR and DIANE SHERRILL added. Signed by CHIEF JUDGE MARK E WALKER on 07/03/2019. (toy) (Entered: 07/03/2019)
31 ORDER GRANTING ADMISSION TO APPEAR PRO HAC VICE re 25 . Attorney ELIZA SWEREN-BECKER for FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, KEITH IVEY, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, JERMAINE MILLER, EMORY MARQUIS MITCHELL, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BETTY RIDDLE, CLIFFORD TYSON, KRISTOPHER WRENCH, and RAQUEL WRIGHT added. Signed by CHIEF JUDGE MARK E WALKER on 07/03/2019. (toy) (Entered: 07/03/2019)
32 ORDER GRANTING ADMISSION TO APPEAR PRO HAC VICE re 28 . Attorney CAREN E SHORT for ROSEMARY MCCOY and SHEILA SINGLETON added. Signed by CHIEF JUDGE MARK E WALKER on 07/03/2019. (toy) (Entered: 07/03/2019)
33 NOTICE of Appearance by NICHOLAS ARI SHANNIN on behalf of BILL COWLES (SHANNIN, NICHOLAS) (Entered: 07/03/2019)
34 NOTICE of Appearance by WENDY ROBIN WEISER on behalf of FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, KEITH IVEY, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, JERMAINE MILLER, EMORY MARQUIS MITCHELL, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BETTY RIDDLE, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT (WEISER, WENDY) (Entered: 07/03/2019)
35 NOTICE of Appearance by MYRNA PEREZ on behalf of FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, KEITH IVEY, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, JERMAINE MILLER, EMORY MARQUIS MITCHELL, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BETTY RIDDLE, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT (PEREZ, MYRNA) (Entered: 07/03/2019)
36 MOTION to Expedite Discovery by FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, KEITH IVEY, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, JERMAINE MILLER, EMORY MARQUIS MITCHELL, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BETTY RIDDLE,

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KRISTOPHER WRENCH, RAQUEL WRIGHT. (EBENSTEIN, JULIE) (Entered: 07/03/2019)
37 *VACATED PER ECF# 107 * INITIAL SCHEDULING ORDER : Fed.R.Civ.P. 7.1 Corporate Disclosure Statement Deadline set for 7/19/2019. Rule 26 Meeting Report due by 8/19/2019. Discovery due by 11/4/2019. Status Report due by 8/5/2019. Signed by CHIEF JUDGE MARK E WALKER on 07/05/2019. (toy) Modified docket text on 8/16/2019 (toy). (Entered: 07/05/2019)
38 MOTION to Appear Pro Hac Vice by Leah C. Aden.( Filing fee $ 201 receipt number AFLNDC-4542301.) by FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, KEITH IVEY, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, JERMAINE MILLER, EMORY MARQUIS MITCHELL, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BETTY RIDDLE, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT. (Attachments: # 1 Certificate of Good Standing - NY) (ADEN, LEAH) (Entered: 07/05/2019)
39 Minute Entry for proceedings held before CHIEF JUDGE MARK E WALKER: Status Conference held on 7/5/2019. Parties discuss case status. Ruling by Court: Parties to confer no later than 7/12/19 re: 36 Motion to Expedite Discoveryif no agreement can be reached, responses to the motion are due by 7/15/2019, replies by 7/16/2019. Defendant Lee's ore tenus motion for defendants to file one responsive pleading is granted, and parties should also confer and discuss by 7/12/19. Clerk to set a telephonic scheduling conference for 7/19/19 at noon (Court Reporter Megan Hague). (vkm) (Entered: 07/05/2019)
40 NOTICE OF TELEPHONIC HEARING: Telephonic Scheduling Conference set for 7/19/2019 12:00 PM before CHIEF JUDGE MARK E WALKER.

ALL PARTIES are directed to call the AT&T Conference Line (see below)

Conference Call Information

You may dial into the conference call up to five minutes before start time. Call in number: 888-684-8852 When prompted for an access code, enter: 3853136# If you are asked to join as the host, just ignore and wait until you are asked for a security code. When asked for a security code, enter: 4565# Say your name, when prompted. You are now in the conference call. Remember to mute your phone when you are not speaking. The Court also asks that counsel NOT use cell phones or speaker

phones during the call as the quality of the audio connection is comprised by these devices.

07/05/2019
07/05/2019 07/08/2019 07/08/2019 07/08/2019 07/08/2019 07/08/2019 07/08/2019 07/08/2019
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s/ Victoria Milton McGee Courtroom Deputy Clerk (vkm) (Entered: 07/05/2019)
41 ORDER GRANTING ADMISSION TO APPEAR PRO HAC VICE re 38 . Attorney LEAH CAMILLE ADEN for FLORIDA STATE CONFERENCE OF THE NAACP,JEFF GRUVER, KEITH IVEY, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, JERMAINE MILLER, EMORY MARQUIS MITCHELL, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BETTY RIDDLE, CLIFFORD TYSON, KRISTOPHER WRENCH, and RAQUEL WRIGHT added. Signed by CHIEF JUDGE MARK E WALKER on 07/05/2019. (toy) (Entered: 07/05/2019)
45 Motion to be Granted Amicus Curiae Status filed by John B. Thompson. (rcb) (Entered: 07/08/2019)
42 CIVIL COVER SHEET. (SHORT, CAREN) (Entered: 07/08/2019)
43 NOTICE of summonses to be issued by the Clerk by ROSEMARY MCCOY, SHEILA SINGLETON (Attachments: # 1 Lee Summons, # 2 Hogan Summons) (SHORT, CAREN) (Entered: 07/08/2019)
44 Summons Issued as to RON DESANTIS, MIKE HOGAN, LAUREL M LEE. (toy) (Entered: 07/08/2019)
46 NOTICE of Appearance by CRAIG DENNIS FEISER on behalf of MIKE HOGAN (FEISER, CRAIG) (Entered: 07/08/2019)
47 NOTICE of Appearance by DYLAN T REINGOLD on behalf of LESLIE ROSSWAY SWAN (REINGOLD, DYLAN) (Entered: 07/08/2019)
48 ORDER DENYING 45 MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF. Signed by CHIEF JUDGE MARK E WALKER on 07/08/2019. (toy) (Entered: 07/08/2019)
49 MOTION to Appoint Process Server by KELVIN LEON JONES. (Attachments: # 1 US Marshal for Ron Desantis, # 2 Summon for Ron Desantis, # 3 US Marshal for Laurel Lee, # 4 Summon for Laurel Lee, # 5 US Marshal for Craig Latimer, # 6 Summon for Craig Latimer) (STEINBERG, MICHAEL) (Entered: 07/08/2019)
Set Response to Motion Deadlines as to 49 MOTION to Appoint Process Server . (Internal deadline for referral to judge if response not filed earlier: 7/22/2019). (toy) (Entered: 07/09/2019)
50 ORDER GRANTING 49 MOTION FOR SERVICE BY UNITED STATES MARSHAL. Counsel for Petitioner/Plaintiff is directed to

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provide to the Clerk of the Court service copies of the Complaint, prepared Summons, and prepared USM 285 forms necessary for service by the United States Marshal. The Clerk shall forward four certified copies of this order, along with the Summons, service copies of the Complaint, and USM 285 forms, previously prepared by counsel for Petitioner/Plaintiff, to the United States Marshal. Upon receipt of these documents, the United States Marshal shall personally serve a copy of the Complaint and Summons on the above -named Respondents/Defendants and subsequently file its returns of service with the Clerk. Signed by CHIEF JUDGE MARK E WALKER on 07/09/2019. (toy) *Copies distributed as directed* (Entered: 07/09/2019)
51 Summons Issued as to RON DESANTIS, CRAIG LATIMER, LAUREL M LEE. (Hard copies of summons and USM 285 Forms received by mail) (toy) (Entered: 07/09/2019)
52 MOTION to Appear Pro Hac Vice by Jonathan S. Topaz.( Filing fee $ 201 receipt number AFLNDC-4545806.) by FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, KEITH IVEY, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, JERMAINE MILLER, EMORY MARQUIS MITCHELL, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BETTY RIDDLE, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT. (Attachments: # 1 Topaz Certificate of Good Standing) (TOPAZ, JONATHAN) (Entered: 07/09/2019)
53 NOTICE of Appearance by ADAM M KATZMAN on behalf of PETER ANTONACCI (KATZMAN, ADAM) (Entered: 07/09/2019)
54 ORDER GRANTING ADMISSION TO APPEAR PRO HAC VICE This Court has considered, without hearing, Plaintiffs' Motion to Appear Pro Hac Vice for Jonathan S. Topaz. ECF No. 52 . The motion is GRANTED. Mr. Topaz has fulfilled the requirements of the Local Rules for admission and is admitted pro hac vice as counsel for Plaintiffs. Signed by CHIEF JUDGE MARK E WALKER on 7/9/19. (blb) (Entered: 07/09/2019)
55 NOTICE of Appearance by MARK HERRON on behalf of MARK EARLEY (HERRON, MARK) (Entered: 07/10/2019)
56 AFFIDAVIT of Service for Complaint served on RON DESANTIS (on behalf of Nick Primrose) on July 9, 2019, filed by ROSEMARY MCCOY, SHEILA SINGLETON. (SHORT, CAREN) Modified on 7/11/2019 to identify party served (toy). (Entered: 07/10/2019)
57 NOTICE of Appearance by NATHANIEL ADAM KLITSBERG on behalf of PETER ANTONACCI (KLITSBERG, NATHANIEL) (Entered: 07/10/2019)

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58 AFFIDAVIT of Service for Complaint served on LAUREL M LEE (on behalf of Ashley Davis) on July 9, 2019, filed by ROSEMARY MCCOY, SHEILA SINGLETON. (SHORT, CAREN) Modified on 7/11/2019 to identify party served (toy). (Entered: 07/10/2019)
59 NOTICE of Appearance by RENE DEVLIN HARROD on behalf of PETER ANTONACCI (HARROD, RENE) (Entered: 07/10/2019)
60 MOTION to Appear Pro Hac Vice by Sean Morales-Doyle.( Filing fee $ 201 receipt number AFLNDC-4547537.) by FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, KEITH IVEY, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, JERMAINE MILLER, EMORY MARQUIS MITCHELL, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BETTY RIDDLE, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT. (Attachments: # 1 Exhibit A) (MORALES-DOYLE, SEAN) (Entered: 07/10/2019)
Set Deadlines/Hearings RON DESANTIS answer due 7/30/2019; LAUREL M LEE answer due 7/30/2019. (toy) (Entered: 07/11/2019)
61 ORDER GRANTING 60 ADMISSION TO APPEAR PRO HAC VICE. Mr. Morales-Doyle has fulfilled the requirements of the Local Rules for admission and is admitted pro hac vice as counsel for Plaintiffs. Signed by CHIEF JUDGE MARK E WALKER on 07/11/2019. (toy) (Entered: 07/11/2019)
62 MOTION to Appear Pro Hac Vice by R. Orion Danjuma.( Filing fee $ 201 receipt number AFLNDC-4549981.) by FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, KEITH IVEY, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, JERMAINE MILLER, EMORY MARQUIS MITCHELL, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BETTY RIDDLE, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT. (Attachments: # 1 Danjuma Certificate of Good Standing) (DANJUMA, RODKANGYIL) (Entered: 07/12/2019)
63 NOTICE of Compliance with Court's Direction by LAUREL M LEE re 39 Status Conference,,, Set Deadlines/Hearings,, (JAZIL, MOHAMMAD) (Entered: 07/12/2019)
65 ORDER GRANTING ADMISSION TO APPEAR PRO HAC VICE. RE ECF NO. 62 . (Appointed RODKANGYIL ORION DANJUMA for FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER,KEITH IVEY,LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, JERMAINE MILLER, EMORY MARQUIS MITCHELL,ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN,BETTY RIDDLE,CLIFFORD

07/15/2019
07/15/2019 07/15/2019 07/15/2019 07/15/2019
07/15/2019
07/15/2019

TYSON,KRISTOPHER WRENCH, and RAQUEL WRIGHT. Signed by CHIEF JUDGE MARK E WALKER on 07/12/2019. (toy) (Entered: 07/15/2019)
64 ORDER DENYING 36 MOTION FOR EXPEDITED DISCOVERY AS MOOT. In light of the Secretary's Notice of Compliance, ECF No. 63 , indicating that the Gruver Plaintiffs "have agreed to withdraw their Motion for Expedited Discovery... and intend to abide by this Court's Initial Scheduling Order," Plaintiffs' motion, ECF No. 36 , is DENIED as moot. Signed by CHIEF JUDGE MARK E WALKER on 07/15/2019. (toy) (Entered: 07/15/2019)
66 NOTICE [Supplemental] of Compliance with Court's Direction by LAUREL M LEE re 63 Notice (Other) (JAZIL, MOHAMMAD) (Entered: 07/15/2019)
67 NOTICE of Appearance by MORGAN RAY BENTLEY on behalf of MICHAEL BENNETT (BENTLEY, MORGAN) (Entered: 07/15/2019)
68 NOTICE of Appearance by MORGAN RAY BENTLEY on behalf of RON TURNER (BENTLEY, MORGAN) (Entered: 07/15/2019)
69 AFFIDAVIT of Service on Kim A. Barton by FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, KEITH IVEY, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, JERMAINE MILLER, EMORY MARQUIS MITCHELL, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BETTY RIDDLE, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT. (EBENSTEIN, JULIE) (Entered: 07/15/2019)
70 AFFIDAVIT of Service on Michael Bennett by FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, KEITH IVEY, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, JERMAINE MILLER, EMORY MARQUIS MITCHELL, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BETTY RIDDLE, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT. (EBENSTEIN, JULIE) (Entered: 07/15/2019)
71 AFFIDAVIT of Service on Broward County Supervisor of Elections PETER ANTONACCI by FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, KEITH IVEY, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, JERMAINE MILLER, EMORY MARQUIS MITCHELL, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BETTY RIDDLE, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT. (EBENSTEIN, JULIE) Modified on 7/16/2019 to identify defendant served (toy). (Entered: 07/15/2019)

07/15/2019 07/15/2019 07/15/2019 07/15/2019 07/15/2019 07/15/2019

72 AFFIDAVIT of Service on Bill Cowles by FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, KEITH IVEY, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, JERMAINE MILLER, EMORY MARQUIS MITCHELL, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BETTY RIDDLE, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT. (EBENSTEIN, JULIE) (Entered: 07/15/2019)
73 AFFIDAVIT of Service on Mark Earley by FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, KEITH IVEY, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, JERMAINE MILLER, EMORY MARQUIS MITCHELL, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BETTY RIDDLE, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT. (EBENSTEIN, JULIE) (Entered: 07/15/2019)
74 AFFIDAVIT of Service on Mike Hogan by FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, KEITH IVEY, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, JERMAINE MILLER, EMORY MARQUIS MITCHELL, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BETTY RIDDLE, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT. (EBENSTEIN, JULIE) (Entered: 07/15/2019)
75 AFFIDAVIT of Service on Craig Latimer by FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, KEITH IVEY, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, JERMAINE MILLER, EMORY MARQUIS MITCHELL, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BETTY RIDDLE, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT. (EBENSTEIN, JULIE) (Entered: 07/15/2019)
76 AFFIDAVIT of Service on Laurel M. Lee by FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, KEITH IVEY, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, JERMAINE MILLER, EMORY MARQUIS MITCHELL, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BETTY RIDDLE, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT. (EBENSTEIN, JULIE) (Entered: 07/15/2019)
77 AFFIDAVIT of Service on Leslie Rossway Swan by FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, KEITH IVEY, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, JERMAINE MILLER, EMORY MARQUIS MITCHELL, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BETTY RIDDLE, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT. (EBENSTEIN, JULIE) (Entered: 07/15/2019)

07/15/2019
07/15/2019
07/15/2019
07/16/2019 07/16/2019 07/16/2019 07/16/2019 07/16/2019

78 AFFIDAVIT of Service on Ron Turner by FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, KEITH IVEY, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, JERMAINE MILLER, EMORY MARQUIS MITCHELL, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BETTY RIDDLE, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT. (EBENSTEIN, JULIE) (Entered: 07/15/2019)
79 AFFIDAVIT of Service on Christina White by FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, KEITH IVEY, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, JERMAINE MILLER, EMORY MARQUIS MITCHELL, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BETTY RIDDLE, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT. (EBENSTEIN, JULIE) (Entered: 07/15/2019)
Set Deadlines/Hearings: PETER ANTONACCI answer due 7/22/2019; KIM A BARTON answer due 7/23/2019; MICHAEL BENNETT answer due 7/22/2019; BILL COWLES answer due 7/22/2019; MARK EARLEY answer due 7/22/2019; MIKE HOGAN answer due 7/23/2019; CRAIG LATIMER answer due 7/22/2019; LESLIE ROSSWAY SWAN answer due 7/22/2019; RON TURNER answer due 7/22/2019; CHRISTINA WHITE answer due 7/22/2019. (toy) (Entered: 07/16/2019)
80 MOTION to Appear Pro Hac Vice by Blair Bowie.( Filing fee $ 201 receipt number AFLNDC-4552740.) by BONNIE RAYSOR, DIANE SHERRILL. (Attachments: # 1 Exhibit (Certificate of Good Standing)) (BOWIE, BLAIR) (Entered: 07/16/2019)
81 ORDER GRANTING 80 ADMISSION TO APPEAR PRO HAC VICE. Ms. Bowie has fulfilled the requirements of the Local Rules for admission and is admitted pro hac vice as counsel for Plaintiffs Bonnie Raysor and Diane Sherrill. Signed by CHIEF JUDGE MARK E WALKER on 07/16/2019. (toy) (Entered: 07/16/2019)
82 AFFIDAVIT of Service for Complaint served on Mike Hogan on July 11, 2019, filed by ROSEMARY MCCOY, SHEILA SINGLETON. (SHORT, CAREN) (Entered: 07/16/2019)
83 NOTICE of Appearance by GEORGE N MEROS, JR on behalf of PETER ANTONACCI, LAUREL M LEE (MEROS, GEORGE) (Entered: 07/16/2019)
84 FIRST AMENDED COMPLAINT against LAUREL M LEE, filed by BONNIE RAYSOR, DIANE SHERRILL, LEE HOFFMAN. (DUNN, CHAD) (Entered: 07/16/2019)

07/17/2019 07/17/2019 07/17/2019 07/17/2019 07/18/2019 07/19/2019 07/19/2019
07/22/2019
07/23/2019

85 NOTICE OF CANCELLED HEARING: Telephonic Scheduling Conference set for 7/19/2019 12:00 PM before CHIEF JUDGE MARK E WALKER is CANCELLED . (vkm) (Entered: 07/17/2019)
86 ORDER OF DISQUALIFICATION. Case reassigned to JUDGE ROBERT L HINKLE for all further proceedings. CHIEF JUDGE MARK E WALKER no longer assigned to case. Signed by CHIEF JUDGE MARK E WALKER on 07/17/2019. *For future filings please use the new judge's initials 4-19-cv-300-RH-MJF* (toy) (Entered: 07/17/2019)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of JUDGE ROBERT L HINKLE notified that action is needed Re: 86 Order of Disqualification. (toy) (Entered: 07/17/2019)
87 NOTICE of Appearance by TARA R PRICE on behalf of PETER ANTONACCI, LAUREL M LEE (PRICE, TARA) (Entered: 07/17/2019)
88 NOTICE of Appearance by CORBIN FREDERICK HANSON on behalf of KIM A BARTON (HANSON, CORBIN) (Entered: 07/18/2019)
89 MOTION for Extension of Time to File Response/Reply as to 84 Amended Complaint, 1 Complaint by PETER ANTONACCI. (Attachments: # 1 Text of Proposed Order) (KATZMAN, ADAM) (Entered: 07/19/2019)
90 Corporate Disclosure Statement/Certificate of Interested Persons by FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, KEITH IVEY, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, JERMAINE MILLER, EMORY MARQUIS MITCHELL, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BETTY RIDDLE, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT. (ADEN, LEAH) (Entered: 07/19/2019)
92 ORDER EXTENDING THE DEADLINE TO RESPOND TO THE COMPLAINTS. The defendants' unopposed motion, ECF No. 89 , to extend the deadline to respond to the amended complaint in No. 4:19cv300 is granted. The deadline for these defendants to respond to the pending complaint in any of the consolidated cases is the later of August 2, 2019 or the deadline that would have applied in the absence of this order. ( (Internal deadline for referral to judge if response not filed earlier: 8/2/2019).) Signed by JUDGE ROBERT L HINKLE on 07/22/2019. (toy) (Entered: 07/23/2019)
91 ORDER SETTING TERMS OF CONSOLIDATION, RULE 26(f) DEADLINES, AND A SCHEDULING CONFERENCE. These cases are consolidated for case-management purposes only and will be maintained on a common docket under Consolidated Case No. 4:19cv300. The deadline for a Rule 26(f) conference among attorneys for all parties in any of these cases is August 5, 2019. The deadline to file the 26(f) report is

07/25/2019

August 12, 2019. By a separate notice, the clerk must set a scheduling conference by telephone for August 15, 2019 at 11:00 a.m. Rule 26 Meeting Report due by 8/12/2019. Scheduling Conference set for 8/15/2019 11:00 AM before JUDGE ROBERT L HINKLE. Signed by JUDGE ROBERT L HINKLE on 07/23/2019. (toy) (Entered: 07/23/2019)
93 NOTICE OF TELEPHONIC HEARING: Telephonic Scheduling Conference set for 8/15/2019 11:00 AM before JUDGE ROBERT L HINKLE.

Call in number: 888-684-8852 Access code: 3243416# Security code: 0815#

07/26/2019
07/26/2019 08/02/2019
08/02/2019 08/02/2019

s/ Cindy Markley Courtroom Deputy Clerk (ckm) (Entered: 07/25/2019)
94 MOTION for a Scheduling and Briefing Order by FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, KEITH IVEY, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, JERMAINE MILLER, EMORY MARQUIS MITCHELL, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BETTY RIDDLE, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT. (Attachments: # 1 Text of Proposed Order) (EBENSTEIN, JULIE) (Entered: 07/26/2019)
Set Response to Motion Deadline as to 94 MOTION for a Scheduling and Briefing Order . (Internal deadline for referral to judge if response not filed earlier: 8/9/2019). (toy) (Entered: 07/29/2019)
95 Emergency MOTION for Leave to File Excess Pages re: Plaintiffs' Motion for Preliminary Injunction by FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, KEITH IVEY, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, JERMAINE MILLER, EMORY MARQUIS MITCHELL, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BETTY RIDDLE, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT. (Attachments: # 1 Text of Proposed Order) (EBENSTEIN, JULIE) (Entered: 08/02/2019)
96 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Supervisors of Elections' Consolidated Motion to Dismiss Plaintiff's Complaint by PETER ANTONACCI, KIM A BARTON, MICHAEL BENNETT, BILL COWLES, MARK EARLEY, MIKE HOGAN, CRAIG LATIMER, LESLIE ROSSWAY SWAN, RON TURNER. (KATZMAN, ADAM) (Entered: 08/02/2019)
97 Joint MOTION to Dismiss (Florida Governor & Florida Secretary of State) by LAUREL M LEE. (Internal deadline for referral to judge if

response not filed earlier: 8/16/2019). (Attachments: # 1 Exhibit 1) (JAZIL, MOHAMMAD) (Entered: 08/02/2019)

08/02/2019

98 Corrected and Unopposed MOTION for Leave to File a Memorandum in Support of Plaintiffs' Motion for Preliminary Injunction in Excess of the Word Limit by FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, KEITH IVEY, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, JERMAINE MILLER, EMORY MARQUIS MITCHELL, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BETTY RIDDLE, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT. (Attachments: # 1 Prop. Mem. in Supp. of Mot. for Prelim. Inj., # 2 Carpenter Decl., # 3 Ex. A Smith Rep., # 4 Ex. B Gruver Decl., # 5 Ex. C Mitchell Decl., # 6 Ex. D Riddle Decl., # 7 Ex. E Leicht Decl., # 8 Ex. F Ivey Decl., # 9 Ex. G Wrench Decl., # 10 Ex. H Wright Decl., # 11 Ex. I Phalen Decl., # 12 Ex. J Miller Decl., # 13 Ex. K Tyson Decl., # 14 Ex. L McCoy Decl., # 15 Ex. M Singleton Decl., # 16 Ex. N Raysor Decl., # 17 Ex. O Sherrill Decl., # 18 Ex. P Hoffman Decl., # 19 Ex. Q Neal Decl., # 20 Ex. R Nweze Decl., # 21 Ex. S Brigham, # 22 Ex. T Feb. 11 Email, # 23 Ex. U June 7 Email, # 24 Ex. V Arrington Dep. Excerpts, # 25 Ex. W Haughwout Decl., # 26 Ex. X Bowie Decl., # 27 Ex. Y July 2 Email) (EBENSTEIN, JULIE) Modified on 8/5/2019 to match the PDF title (toy). (Entered: 08/02/2019)

08/02/2019

Set Response to Motion Deadline as to 96 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Supervisors of Elections' Consolidated Motion to Dismiss Plaintiff's Complaint. (Internal deadline for referral to judge if response not filed earlier: 8/16/2019). (toy) (Entered: 08/05/2019)

08/06/2019

99 STATUS REPORT (Joint Discovery Report for all Parties) by FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, KEITH IVEY, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, JERMAINE MILLER, EMORY MARQUIS MITCHELL, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BETTY RIDDLE, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT. (MORALES-DOYLE, SEAN) (Entered: 08/06/2019)

08/07/2019

Set Deadlines/Hearings Status Report due by 9/7/2019. (toy) (Entered: 08/07/2019)

08/07/2019 100 ORDER DENYING THE 94 MOTION FOR A SCHEDULING AND BRIEFING ORDER. Signed by JUDGE ROBERT L HINKLE on 08/07/2019. (toy) (Entered: 08/07/2019)

08/07/2019

101 ORDER ENDING REQUIREMENTS TO FILE DISCOVERY STATUS REPORTS. The initial scheduling order, ECF No. 37 , is amended to delete the requirement to file monthly reports on the status of discovery. Signed by JUDGE ROBERT L HINKLE on 08/07/2019. (toy) (Entered: 08/07/2019)

08/07/2019 102 Joint MOTION to Stay Discovery as it Relates to Supervisors of Elections, MOTION for Protective Order by CHRISTINA WHITE. (ROSENTHAL, OREN) (Entered: 08/07/2019)

08/07/2019

103 ORDER ALLOWING MEMORANDA OF EXCESSIVE LENGTH Plaintiffs' unopposed motion, ECF No. 98 , for leave to file a preliminaryinjunction memorandum that exceeds the word limit is granted. The memorandum, ECF No. 98 -1, is deemed properly filed as of August 2, 2019. Signed by JUDGE ROBERT L HINKLE on 8/7/2019. (cle) (Entered: 08/08/2019)

08/07/2019

Set Response to Motion Deadline as to 102 Joint MOTION to Stay Discovery as it Relates to Supervisors of Elections MOTION for Protective Order . (Internal deadline for referral to judge if response not filed earlier: 8/21/2019). (toy) (Entered: 08/08/2019)

08/08/2019 104 ACKNOWLEDGMENT OF SERVICE on BRAD MCVAY, on behalf of LAUREL M LEE on August 6, 2019. (toy) (Entered: 08/08/2019)

08/12/2019 105 REPORT of Rule 26(f) Planning Meeting. (SWEREN-BECKER, ELIZA) (Entered: 08/12/2019)

08/15/2019 106 Minute Entry for proceedings held before JUDGE ROBERT L HINKLE: Telephonic Scheduling Conference held on 8/15/2019. An Order is forthcoming. (Court Reporter Judy Gagnon.) (kjw) (Entered: 08/15/2019)

08/15/2019

107 SCHEDULING ORDER and ORDER denying 96 Motion to Dismiss for Failure to State a Claim; denying 102 Motion to Stay; denying 102 Motion for Protective Order. The Initial Scheduling Order is VACATED. Signed by JUDGE ROBERT L HINKLE on 8/15/19. (sms) (Entered: 08/15/2019)

08/15/2019

108 MOTION for Preliminary Injunction by FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, KEITH IVEY, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, JERMAINE MILLER, EMORY MARQUIS MITCHELL, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BETTY RIDDLE, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT. (EBENSTEIN, JULIE) (Entered: 08/15/2019)

08/16/2019

Set Deadlines as to 97 Joint MOTION to Dismiss (Florida Governor & Florida Secretary of State). (Internal deadline for referral to judge if response not filed earlier: 8/29/2019). Reply, if any due by 9/23/2019. (Set per ECF# 107 ) (toy) (Entered: 08/16/2019)

08/16/2019

Set Deadlines as to 108 MOTION for Preliminary Injunction . (Internal deadline for referral to judge if response not filed earlier: 9/6/2019). Reply, if any due by 9/23/2019. (Set by ECF# 107 ) (toy) (Entered: 08/16/2019)

08/16/2019

Set Deadlines/Hearings: Declaration/Exhibits/Witness Lists/26(a)(2) Disclosures due by 9/16/2019. Rebuttal Evidence Deadline - by 9/23/2019. Preliminary - Injuction Hearing set for 10/7/2019 09:00 AM in U.S. Courthouse Tallahassee before JUDGE ROBERT L HINKLE. (toy) (Set per ECF# 107 ) (Entered: 08/16/2019)

08/19/2019

109 NOTICE OF HEARING on 108 Motion for Preliminary Injunction: Preliminary Injunction Hearing set for 10/7/2019 09:00 AM before JUDGE ROBERT L HINKLE, United States Courthouse, Courtroom 5 East, 111 North Adams St., Tallahassee, Florida 32301.

NOTE: If you or any party, witness or attorney in this matter has a disability that requires special accommodation, such as a hearing impairment that requires a sign language interpreter or a wheelchair restriction that requires ramp access, please contact Cindy Markley at 850-521-3501 in the Clerk's Office at least one week prior to the hearing (or as soon as possible) so arrangements can be made.

s/ Cindy Markley Courtroom Deputy Clerk (ckm) (Entered: 08/19/2019)
08/19/2019 110 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Scheduling Conference Proceedings held on 8/15/2019 before Judge Robert L. Hinkle. Court Reporter: Judy Gagnon, Telephone number: 850-561-6822.

Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

Redaction Request due 8/26/2019. Release of Transcript Restriction set for 11/25/2019. (kjw) (Entered: 08/20/2019)
08/20/2019 111 NOTICE of Appearance by SUMMER DENAY BROWN on behalf of MARK EARLEY (HERRON, MARK) Modified on 8/20/2019 to correct filer (toy). (Entered: 08/20/2019)
08/21/2019 112 NOTICE Notice of Withdrawal of Counsel by Adam Katzman, Nathaniel Klitsberg, and Rene Harrod by PETER ANTONACCI re 83 Notice of Appearance (KATZMAN, ADAM) (Entered: 08/21/2019)
08/26/2019 113 NOTICE of Appearance by GEENA MARCELA CESAR on behalf of KIM A BARTON (CESAR, GEENA) (Entered: 08/26/2019)
08/29/2019 114 ANSWER to 1 Complaint by LESLIE ROSSWAY SWAN. (REINGOLD, DYLAN) (Entered: 08/29/2019)

08/29/2019 115 Defendant, Mark Earley, Supervisor of Elections for Leon County's ANSWER to 1 Complaint for Injunctive and Declaratory Relief by MARK EARLEY. (HERRON, MARK) (Entered: 08/29/2019)

08/29/2019 116 Mike Hogan, Supervisor of Elections for Duval County ANSWER to 1 Complaint by McCoy by MIKE HOGAN. (FEISER, CRAIG) (Entered: 08/29/2019)

08/29/2019 117 Mike Hogan, Supervisor of Elections for Duval County ANSWER to Complaint by Gruver by MIKE HOGAN. (FEISER, CRAIG) (Entered: 08/29/2019)

08/29/2019 118 ANSWER to 1 Complaint by CHRISTINA WHITE. (ROSENTHAL, OREN) (Entered: 08/29/2019)

08/29/2019 119 ANSWER to Complaint and Affirmative Defenses by KIM A BARTON. (HANSON, CORBIN) (Entered: 08/29/2019)

08/29/2019 120 ANSWER to 1 Complaint by BILL COWLES. (SHANNIN, NICHOLAS) (Entered: 08/29/2019)

08/29/2019

121 MEMORANDUM in Opposition re 97 Joint MOTION to Dismiss (Florida Governor & Florida Secretary of State) filed by FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, LEE HOFFMAN, KEITH IVEY, KELVIN LEON JONES, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, ROSEMARY MCCOY, LUIS A MENDEZ, JERMAINE MILLER, EMORY MARQUIS MITCHELL, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BONNIE RAYSOR, BETTY RIDDLE, DIANE SHERRILL, SHEILA SINGLETON, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT. (MORALES-DOYLE, SEAN) (Entered: 08/29/2019)

08/29/2019 122 ANSWER to 1 Complaint and Affirmative Defenses by PETER ANTONACCI. (PRICE, TARA) (Entered: 08/29/2019)

08/30/2019 123 Defendant's ANSWER to 1 Complaint by CRAIG LATIMER. (TODD, STEPHEN) (Entered: 08/30/2019)

08/30/2019

124 OBJECTION AND RESPONSE BY GARY J. COONEY, AS CLERK OF THE CIRCUIT COURT, LAKE COUNTY FLORIDA TO SUBPOENA by GARY J. COONEY. (JOHNSON, DANIEL) Modified on 9/3/2019 to match PDF title (toy). (Entered: 08/30/2019)

09/04/2019 125 RESPONSE in Opposition re 108 MOTION for Preliminary Injunction filed by CRAIG LATIMER. (TODD, STEPHEN) (Entered: 09/04/2019)

09/06/2019 126 RESPONSE to Motion re 108 MOTION for Preliminary Injunction Or, in the alternative, for Further Relief filed by MIKE HOGAN. (FEISER, CRAIG) (Entered: 09/06/2019)

09/06/2019 127 RESPONSE to Motion re 108 MOTION for Preliminary Injunction filed by KIM A BARTON. (SWAIN, ROBERT) (Entered: 09/06/2019)

09/06/2019 128 RESPONSE in Opposition re 108 MOTION for Preliminary Injunction or, in the Alternative, for Further Relief filed by LESLIE ROSSWAY SWAN. (REINGOLD, DYLAN) (Entered: 09/06/2019)

09/06/2019 129 Michael Bennett, Manatee County Supervisor of Elections ANSWER to 1 Complaint by MICHAEL BENNETT. (BENTLEY, MORGAN) (Entered: 09/06/2019)

09/06/2019 130 Ron Turner, Sarasota County Supervisor of Elections ANSWER to 1 Complaint by RON TURNER. (BENTLEY, MORGAN) Modified on 9/9/2019 to identify filer (toy). (Entered: 09/06/2019)

09/06/2019 131 RESPONSE to Motion re 108 MOTION for Preliminary Injunction or, In The Alternative, For Further Relief filed by MARK EARLEY. (HERRON, MARK) (Entered: 09/06/2019)

09/06/2019

132 RESPONSE in Opposition re 108 MOTION for Preliminary Injunction (Governor & Secretary of State) filed by LAUREL M LEE. (Attachments: # 1 Appendix) (JAZIL, MOHAMMAD) (Entered: 09/06/2019)

09/06/2019 133 RESPONSE in Opposition re 108 MOTION for Preliminary Injunction (Broward County Supervisor of Elections) filed by PETER ANTONACCI. (PRICE, TARA) (Entered: 09/06/2019)

09/06/2019 134 RESPONSE in Opposition re 108 MOTION for Preliminary Injunction filed by CHRISTINA WHITE. (ROSENTHAL, OREN) (Entered: 09/06/2019)

09/09/2019 135 RESPONSE in Opposition re 108 MOTION for Preliminary Injunction filed by BILL COWLES. (SHANNIN, NICHOLAS) (Entered: 09/09/2019)

09/09/2019

136 Unopposed MOTION to Deem Bill Cowles, Orange County Supervisor of Elections for Orange County, Response in Opposition to Motion for Preliminary Injunction or, in the Alternative, for Further Relief Timely Filed re 135 Response in Opposition to Motion by BILL COWLES. (SHANNIN, NICHOLAS) Modified on 9/9/2019 to match PDF title (toy). (Entered: 09/09/2019)

09/10/2019 137 ORDER DEEMING 135 PRELIMINARY - INJUNCTION RESPONSE TIMELY re 136 . Signed by JUDGE ROBERT L HINKLE on 09/10/2019. (toy) (Entered: 09/10/2019)

09/10/2019

138 Joint MOTION to Stay by RON DESANTIS. (Attachments: # 1 Exhibit Composite Exhibit - Request for Advisory Opinion and Florida Supreme Court Scheduling Order) (PRIMROSE, NICHOLAS) (Entered: 09/10/2019)

09/11/2019 139 NOTICE of Filing Deposition Transcript by CRAIG LATIMER re 125 Response in Opposition to Motion (Attachments: # 1 Supplement Deposition Transcript) (TODD, STEPHEN) (Entered: 09/11/2019)

09/11/2019

140 ORDER DENYING 138 THE MOTION TO STAY. But to the extent pertinent, the motion will be deemed a supplement to the pending motion to dismiss. No change is made to the briefing schedule on the motion to dismiss or to any other part of the existing schedule. Signed by JUDGE ROBERT L HINKLE on 09/11/2019. (toy) (Entered: 09/12/2019)

09/12/2019 141 NOTICE of Pendency of Other Similar Action by RON DESANTIS (Attachments: # 1 Exhibit Hand v. Scott Order Directing Supplemental Briefing) (PRIMROSE, NICHOLAS) (Entered: 09/12/2019)

09/13/2019

142 MOTION to Appear Pro Hac Vice by Jennifer A. Holmes.( Filing fee $ 201 receipt number AFLNDC-4620413.) by FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, KEITH IVEY, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, JERMAINE MILLER, EMORY MARQUIS MITCHELL, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BETTY RIDDLE, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT. (Attachments: # 1 Certificate of Good Standing) (HOLMES, JENNIFER) (Entered: 09/13/2019)

09/16/2019 143 Witness List by MARK EARLEY. (HERRON, MARK) (Entered: 09/16/2019)

09/16/2019

144 RESPONSE by CRAIG LATIMER re 107 Order on Motion to Dismiss for Failure to State a Claim,, Order on Motion to Stay,, Order on Motion for Protective Order, Dated 8/15/19. (TODD, STEPHEN) (Entered: 09/16/2019)

09/16/2019 145 Witness List by BILL COWLES. (SHANNIN, NICHOLAS) (Entered: 09/16/2019)

09/16/2019

146 Witness List by FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, LEE HOFFMAN, KEITH IVEY, KELVIN LEON JONES, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, ROSEMARY MCCOY, LUIS A MENDEZ, JERMAINE MILLER, EMORY MARQUIS MITCHELL, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BONNIE RAYSOR, BETTY RIDDLE, DIANE SHERRILL, SHEILA SINGLETON,

CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT. (ADEN, LEAH) (Entered: 09/16/2019)

09/16/2019 147 Witness List by RON DESANTIS, LAUREL M LEE. (PRICE, TARA) (Entered: 09/16/2019)

09/16/2019

148 Exhibit List by RON DESANTIS, LAUREL M LEE.. (Attachments: # 1 Exhibit 1- Florida Supreme Court Oral Argument Transcript, # 2 Exhibit 2- Dec. 13, 2018 letter, # 3 Exhibit 3- Rulemaking Record, # 4 Exhibit 4- Voter Assistance Hotline Manual, # 5 Exhibit 5- HB 7089, # 6 Exhibit 6- SB 7086, # 7 Exhibit 7- SB 7066, # 8 Exhibit 8- Legislative History- Summaries, # 9 Exhibit 9- Art. VI, Sec. 4, Fla. Const., # 10 Exhibit 10- Fla. Stat. s. 98.9751, # 11 Exhibit 11- Fla. Stat. s. 97.0585, # 12 Exhibit 12- Fla. Stat. s. 104.011, # 13 Exhibit 13- Gov. Request for Advisory Opinion, # 14 Exhibit 14- Florida Supreme Court Order on Advisory Opinion, # 15 Exhibit 15- Proposed Constitutional Amendments, # 16 Affidavit 16- Declaration of Maria Matthews, # 17 Affidavit 17- Declaration of Patrick O'Bryant, # 18 Exhibit 17AGruver, # 19 Exhibit 17B- Mitchell, # 20 Exhibit 17C- Ivey, # 21 Exhibit 17D- Wrench, # 22 Exhibit 17E- Wright, # 23 Exhibit 17F- Miller, # 24 Exhibit 17G- Tyson, # 25 Exhibit 17H- McCoy, # 26 Exhibit 17ISingleton, # 27 Exhibit 17J- Raysor, # 28 Exhibit 17K- Sherrill, # 29 Exhibit 17L- Hoffman, # 30 Exhibit 17M- Jones, # 31 Exhibit 17NMendez, # 32 Exhibit 17O- ACLU of Florida, # 33 Exhibit 17P- Second Chances, # 34 Exhibit 18- FCCC Voting Rights Restoration Presentation, # 35 Exhibit 19- Voter Restoration Workgroup Presentation, # 36 Exhibit 20- Chapter 2019-162, Laws of Florida, # 37 Exhibit 21- Dr. Barber Report) (PRICE, TARA) (Entered: 09/16/2019)

09/16/2019 149 Witness List by RON DESANTIS, LAUREL M LEE. (Attachments: # 1 Exhibit 1- Rule 26(a)(2) Expert Disclosures & Report of Dr. Barber) (PRICE, TARA) (Entered: 09/16/2019)

09/16/2019 150 Exhibit List & Witness List by PETER ANTONACCI.. (PRICE, TARA) (Entered: 09/16/2019)

09/16/2019

151 Exhibit List by FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, LEE HOFFMAN, KEITH IVEY, KELVIN LEON JONES, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, ROSEMARY MCCOY, LUIS A MENDEZ, JERMAINE MILLER, EMORY MARQUIS MITCHELL, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BONNIE RAYSOR, BETTY RIDDLE, DIANE SHERRILL, SHEILA SINGLETON, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT.. (ADEN, LEAH) (Entered: 09/16/2019)

09/17/2019 152 Exhibit List by FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, LEE HOFFMAN, KEITH IVEY, KELVIN LEON

JONES, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, ROSEMARY MCCOY, LUIS A MENDEZ, JERMAINE MILLER, EMORY MARQUIS MITCHELL, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BONNIE RAYSOR, BETTY RIDDLE, DIANE SHERRILL, SHEILA SINGLETON, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 3, # 3 Exhibit 4, # 4 Exhibit 5, # 5 Exhibit 6, # 6 Exhibit 7, # 7 Exhibit 8, # 8 Exhibit 9, # 9 Exhibit 10, # 10 Exhibit 11, # 11 Exhibit 12, # 12 Exhibit 13, # 13 Exhibit 14, # 14 Exhibit 15, # 15 Exhibit 16, # 16 Exhibit 17, # 17 Exhibit 18, # 18 Exhibit 19, # 19 Exhibit 20, # 20 Exhibit 21, # 21 Exhibit 22, # 22 Exhibit 23, # 23 Exhibit 24, # 24 Exhibit 25, # 25 Exhibit 26, # 26 Exhibit 27, # 27 Exhibit 28, # 28 Exhibit 29, # 29 Exhibit 30, # 30 Exhibit 31, # 31 Exhibit 32, # 32 Exhibit 33, # 33 Exhibit 35, # 34 Exhibit 36, # 35 Exhibit 37, # 36 Exhibit 38, # 37 Exhibit 40, # 38 Exhibit 41, # 39 Exhibit 42, # 40 Exhibit 43, # 41 Exhibit 44, # 42 Exhibit 45, # 43 Exhibit 46, # 44 Exhibit 47, # 45 Exhibit 48, # 46 Exhibit 49, # 47 Exhibit 50, # 48 Exhibit 51, # 49 Exhibit 52, # 50 Exhibit 53, # 51 Exhibit 54, # 52 Exhibit 55, # 53 Exhibit 56, # 54 Exhibit 57, # 55 Exhibit 58, # 56 Exhibit 59, # 57 Exhibit 60, # 58 Exhibit 61, # 59 Exhibit 62, # 60 Exhibit 63, # 61 Exhibit 64, # 62 Exhibit 65, # 63 Exhibit 66, # 64 Exhibit 67, # 65 Exhibit 68, # 66 Exhibit 69, # 67 Exhibit 70, # 68 Exhibit 71, # 69 Exhibit 72, # 70 Exhibit 73, # 71 Exhibit 74, # 72 Exhibit 75, # 73 Exhibit 76, # 74 Exhibit 77, # 75 Exhibit 78, # 76 Exhibit 79, # 77 Exhibit 80, # 78 Exhibit 81, # 79 Exhibit 82, # 80 Exhibit 83, # 81 Exhibit 84, # 82 Exhibit 85, # 83 Exhibit 86, # 84 Exhibit 87, # 85 Exhibit 88, # 86 Exhibit 89, # 87 Exhibit 90, # 88 Exhibit 91, # 89 Exhibit 92, # 90 Exhibit 93, # 91 Exhibit 94, # 92 Exhibit 95, # 93 Exhibit 96, # 94 Exhibit 97, # 95 Exhibit 98, # 96 Exhibit 99, # 97 Exhibit 100, # 98 Exhibit 101, # 99 Exhibit 103, # 100 Exhibit 104, # 101 Exhibit 105, # 102 Exhibit 107, # 103 Exhibit 108, # 104 Exhibit 109, # 105 Exhibit 110, # 106 Exhibit 111, # 107 Exhibit 113, # 108 Exhibit 114, # 109 Exhibit 115, # 110 Exhibit 116, # 111 Exhibit 117, # 112 Exhibit 118, # 113 Exhibit 119, # 114 Exhibit 120, # 115 Exhibit 121, # 116 Exhibit 123, # 117 Exhibit 124, # 118 Exhibit 125, # 119 Exhibit 126, # 120 Exhibit 127, # 121 Exhibit 128, # 122 Exhibit 131, # 123 Exhibit 132, # 124 Exhibit 133, # 125 Exhibit 141, # 126 Exhibit 142, # 127 Exhibit 143, # 128 Exhibit 144, # 129 Exhibit 145, # 130 Exhibit 146, # 131 Exhibit 147, # 132 Exhibit 148, # 133 Exhibit 149, # 134 Exhibit 169) (ADEN, LEAH) (Entered: 09/17/2019)

09/17/2019

153 Exhibit List by FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, LEE HOFFMAN, KEITH IVEY, KELVIN LEON JONES, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, ROSEMARY MCCOY, LUIS A MENDEZ, JERMAINE

MILLER, EMORY MARQUIS MITCHELL, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BONNIE RAYSOR, BETTY RIDDLE, DIANE SHERRILL, SHEILA SINGLETON, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT.. (Attachments: # 1 Exhibit 2, # 2 Exhibit 34, # 3 Exhibit 39, # 4 Exhibit 106, # 5 Exhibit 122, # 6 Exhibit 129, # 7 Exhibit 130, # 8 Exhibit 134) (ADEN, LEAH) (Entered: 09/17/2019)
09/17/2019 154 Witness List by MIKE HOGAN. (FEISER, CRAIG) (Entered: 09/17/2019)

09/17/2019 155 Witness List by LESLIE ROSSWAY SWAN. (REINGOLD, DYLAN) (Entered: 09/17/2019)

09/17/2019

156 MOTION By Plaintiffs For Leave to File Out of Time Declarations and Exhibits re 108 MOTION for Preliminary Injunction by FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, LEE HOFFMAN, KEITH IVEY, KELVIN LEON JONES, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, ROSEMARY MCCOY, LUIS A MENDEZ, JERMAINE MILLER, EMORY MARQUIS MITCHELL, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BONNIE RAYSOR, BETTY RIDDLE, DIANE SHERRILL, SHEILA SINGLETON, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT. (Attachments: # 1 Proposed Order) (ADEN, LEAH) (Entered: 09/17/2019)

09/17/2019

157 Unopposed MOTION to Extend Time to File Reply Brief in Support of Preliminary Injunction by FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, KEITH IVEY, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, JERMAINE MILLER, EMORY MARQUIS MITCHELL, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BETTY RIDDLE, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT. (Attachments: # 1 Text of Proposed Order) (EBENSTEIN, JULIE) Modified on 9/18/2019 to match PDF title (toy). (Entered: 09/17/2019)

09/17/2019

Set Response to Motion Deadline as to 156 MOTION By Plaintiffs For Leave to File Out of Time Declarations and Exhibits re 108 MOTION for Preliminary Injunction . (Internal deadline for referral to judge if response not filed earlier: 10/1/2019). (toy) (Entered: 09/18/2019)

09/18/2019

158 DOCKET ANNOTATION BY COURT: Counsel is advised that for all future pleadings, for this case and any future cases assigned to Judge Hinkle, any exhibit attached to a document filing should be properly identified. (Example: Deposition of John Doe rather than Exhibit A.) (toy) (Entered: 09/18/2019)

09/19/2019

159 ORDER ON LATE-FILED MATERIALS. The plaintiffs' motion, ECF No. 156 , to accept as timely the preliminary-injunction materials filed on September 17, 2019, ECF Nos. 152 and 153 , will be deemed granted without further order unless by September 23, 2019 a defendant files a memorandum in opposition to ECF No. 156 . (Memorandum in Opposition, if any due by 9/23/2019.) Signed by JUDGE ROBERT L HINKLE on 09/19/2019. (toy) (Entered: 09/19/2019)

09/19/2019

160 ORDER EXTENDING THE DEADLINE FOR A REPLY MEMORANDUM ON THE PRELIMINARY-INJUNCTION MOTION re 157 . The deadline is extended to September 27, 2019. ( Memorandum in Support due by 9/27/2019.) Signed by JUDGE ROBERT L HINKLE on 09/19/2019. (toy) (Entered: 09/19/2019)

09/23/2019

161 RESPONSE to Motion re 156 MOTION By Plaintiffs For Leave to File Out of Time Declarations and Exhibits re 108 MOTION for Preliminary Injunction filed by RON DESANTIS, LAUREL M LEE. (PRICE, TARA) (Entered: 09/23/2019)

09/23/2019 162 Unopposed MOTION for Leave to File a Reply Memorandum in Excess of Word Limit by LAUREL M LEE. (JAZIL, MOHAMMAD) Modified on 9/24/2019 to match PDF title (toy). (Entered: 09/23/2019)

09/23/2019 163 RESPONSE in Support re 97 Joint MOTION to Dismiss (Florida Governor & Florida Secretary of State) filed by LAUREL M LEE. (JAZIL, MOHAMMAD) (Entered: 09/23/2019)

09/23/2019 164 Exhibit List (Rebuttal Exhibits) by RON DESANTIS, LAUREL M LEE.. (Attachments: # 1 Exhibit 22- Dr. Barber Supplemental Report) (PRICE, TARA) (Entered: 09/23/2019)

09/23/2019 165 Exhibit List Supplemental Exhibits and Declarations by JEFF GRUVER.. (EBENSTEIN, JULIE) (Entered: 09/23/2019)

09/24/2019

166 ORDER GRANTING 162 LEAVE TO EXCEED THE WORD LIMIT. The reply memorandum, ECF No. 163 , is deemed properly filed. Signed by JUDGE ROBERT L HINKLE on 09/24/2019. (toy) (Entered: 09/24/2019)

09/24/2019

167 Exhibit List Supplemental Exhibits and Declarations by JEFF GRUVER.. (Attachments: # 1 Ex. 170 Rosemary McCoys Termination of Supervision, # 2 Ex. 171 SOS Email communications regarding administrative hearings on ineligibility., # 3 Ex. 172 Nov. 20, 2018. SOS Internal Memo on Amendment 4 Implementation., # 4 Ex. 173 Rosemary McCoys Satisfaction of Judgment, # 5 Ex. 174 Termination of Supervision Letter from Florida Department of Corrections, # 6 Ex. 175 Clerks Amendment 4 Quick Response Team, July 8, 2019 Conference Call Agenda, # 7 Ex. 176 Clerks Amendment 4 Quick Response Team, August 19, 2019 Conference

Call Agenda, # 8 Ex. 177 July 18, 2019 Email exchange regarding access to FDC records, # 9 Ex. 178 Materials from Restoration of Voting Rights Work Group Second Meeting on September 16, 2019, # 10 Ex. 179 Email chain between county clerks re: fines and fees ordered as part of the sentence, # 11 Ex. 180 Email chain re: disclaimer on financial summary information provided from CIS, # 12 Ex. 181 Summary of meeting between Manatee Clerk and SOE re: process for determining voter eligibility, # 13 Ex. 182 Notice from Texas based collections agency, # 14 Ex. 183 Email re: 10 cases per county study, # 15 Ex. 184 Alachua County 2017 Assessments and Collections Form, # 16 Ex. 185 Aug. 26, 2019 Agenda A4 QRT Conference Call, # 17 Ex. 186 Alachua County 2014 Assessments and Collections Form, # 18 Ex. 187 Alachua county 2014-15 Collection Agent Report, # 19 Ex. 188 Criminal Division Business Rules 5.14.19, # 20 Ex. 189 Customer Service Manual Aug. 18, 2016, # 21 Ex. 190 Alachua County 2016 Assessments and Collections form, # 22 Ex. 191 Escambia County Procedure for Collections Department, # 23 Ex. 192 Escambia County Procedure for Giving Credit to Defendant for Community Service Work in Lieu of Costs and Fees, # 24 Ex. 193 Hillsborough County 2016 Assessments and Collections Report, # 25 Ex. 194 Hillsborough County 2017 Assessments and Collections Report, # 26 Ex. 195 Hillsborough County Restitution Procedures, # 27 Ex. 196 Hillsborough County Collections Quarterly Report FY 15-16, # 28 Ex. 197 Hillsborough County Collections Quarterly Report FY 16-17, # 29 Ex. 198 Hillsborough County Collections Quarterly Report FY 17-18, # 30 Ex. 199 Hillsborough County VOP Procedures, # 31 Ex. 200 Manatee, Sarasota, and Desoto County Cost Sheet Instructions, # 32 Ex. 201 Manatee County Agreement/Order for Payment of Court Costs, Fines, Fees, or Civil Restitution, # 33 Ex. 202 Manatee County Calculating Interest on Judgments, # 34 Ex. 203 Manatee County Monetary Final Judgments, # 35 Ex. 204 Penn Credit Collection Services Agreement with Walton County, # 36 Ex. 205 Penn Credit Settlement of Judgment/Civil lien debts, # 37 Ex. 206 Email from Carla A. Cribb, Nassau County Clerk of Courts, # 38 Ex. 207 12/19/18 Emails between Supervisor Earley and Clerk Marshall re: Clerk of Courts felon data, # 39 Ex. 208 12/18/18 Emails between Supervisor Earley and Steve Been re: Amendment 4 and Fees, Reparation, Restitution, etc., # 40 Ex. 209 12/20/18 emails between Monique Duncan-Jones and Rachel Matz re: "AMEND 4 follow up", # 41 Ex. 210 12/20/18 emails between Steve Been and Leon County SOE staff re: please review and provide input to our draft FAQ on Amendment 4, # 42 Ex. 211 1/3/19 emails among Leon County SOE staff re: felon voting handout draft from steve been, # 43 Ex. 212 1/17/19 emails among Leon County SOE staff re: Amber w/ the Division is visiting the front office tomorrow, # 44 Ex. 213 Report: Tour of Florida Courthouses to Access Court Records, # 45 Ex. 214 Email from Ken Burke 9/9/19 re: collecting sample county judgment and sentence documents for A4 QRT team and attachments, # 46 Ex. 215 5/28/19 email from Ken

Burke re: Amendment 4 Workgroup, # 47 Ex. 216 May 2019 email chain re: negotiating judgments for fines and fees, # 48 Ex. 217 Nassau County Supervisor of Elections Amendment 4 FAQ, # 49 Ex. 218 Aug. 5 A4 QRT Call Agenda, # 50 Ex. 219 GT Memo July 26, 2019 Re: Issues Pertaining to Restoration of Voting Rights, # 51 Ex. 220 Sarasota County Judgment Sample, # 52 Ex. 221 FCCC Legal Opinion Restoration of Voting Rights, # 53 Ex. 222 FCCC 2017-18 Leg Session Overview, # 54 Ex. 223 FCCC Response to ACLU and Related Data Inquiries, # 55 Ex. 224 Email Correspondence Martin County Clerk*, # 56 Ex. 225 FCCC Amendment 4 Resources, # 57 Ex. 226 Amendment #4 Telephone Conference August 20, 2019, # 58 Ex. 227 Clerks Amendment 4 Quick Response Team August 26, 2019 Conference Call, # 59 Ex. 228 Florida Department of State Powerpoint on Identifying Potentially Ineligible Registered Voters for Reasons of a Felony Conviction, # 60 Ex. 229 Clerks Amendment 4 QRT Study Results, # 61 Ex. 230 Florida Dept of Corrections Letter re: CCIS Discrepancy, # 62 Ex. 231 Florida Dept of Corrections Termination of Supervision Letter, # 63 Ex. 232 Florida Dept of Corrections Closing Summary, # 64 Ex. 233 FCCC QRT Telephone Conference August 12, 2019, # 65 Ex. 234 FCCC QRT August 19, 2019 Conference Call, # 66 Ex. 235 FCC QRT Telephone Conference August 20, 2019 Conference Call, # 67 Ex. 236 August 5 FCC QRT Telephone Conference, # 68 Ex. 237 8/21/2019 Email from Jeanne Worthington to Pinella County Clerk, # 69 Ex. 238 5/10/2019 Email from Alessandra Shurina to other SOE staff, # 70 Ex. 239 Amendment 4 Pilot Project Workflow, # 71 Ex. 240 Community Foundation of Sarasota Application, # 72 Ex. 241 Clerks as the Point of Contact for Consolidated Information on Restoration of Voting Rights, # 73 Ex. 242 July 15 FCCC QRT Call, # 74 Ex. 243 Sarasota County 2918 Voter Restoration Work Group, # 75 Ex. 244 FCCC Advisory on Data Review Request, # 76 Ex. 245 FCCC QRT July 8, 2019 Call, # 77 Ex. 246 6/7/19 Email from Alessandra Shurina to Mark Earley and Leon SOE Staf, # 78 Ex. 247 FCCC Meeting with DOC 7/12/2019, # 79 Ex. 248 6/7/19 Emails between Maria Matthews and Mark Earley, # 80 Ex. 249 6/7/19 Emails between Mark Earley and Leon SOE Staff, # 81 Ex. 250 Broward County Clerk of Court 8/19/19 Press Release re Amendment 4, # 82 Ex. 251 12/13/18 Memorandum from Ronald Labasky to all SOEs, # 83 Ex. 252 Dept of State legislative Changes Rulemaking Election Administration (page 60), # 84 Ex. 253 Hillsborough County SOE Amendment 4 FAQs, # 85 Ex. 254 8/24/219 Email Exchange re FCOR referrals, # 86 Ex. 255 8/23/2019 Maria Matthews Email to Clerks, # 87 Ex. 256 8/14/2019 Email Exchange re 4 corners of sentence, # 88 Ex. 257 7/13/19 Email From Katherine Plante to Karen Rushing Re: SB 7066, # 89 Ex. 258 7/15/19 A4 QRT email re: negotiation of civil judgments, liens and fines, # 90 Ex. 259 7/18/19 Email exchange with DOC re: information on termination of supervision, # 91 Ex. 260 8/23/2019 email chain re: Court Ordered Financial Obligations, # 92 Ex. 261 7/18/19 A4 QRT email re: negotiation of civil judgments, liens and fines, # 93 Ex. 262

8/23/19 email chain re: court ordered financial obligations, # 94 Ex. 263 7/15/19 A4 QRT Conference Call Minutes, # 95 Ex. 264 7/24/19 Voter Restoration Work Group Meeting Minutes, # 96 Ex. 265 Email chain among supervisors of elections re: Draft Motion/Order - Amendment 4, # 97 Ex. 266 8/1 Email re: Sarasota program to clear felony debt, # 98 Ex. 267 Broward Proposed Motion and Order, # 99 Ex. 268 8/20/19 email between Lee Hawarth and Karen Rushing, # 100 Ex. 269 8/6/19 emal from Ken Burke re: CCIS Amend. 4 Issues, # 101 Ex. 270 5/29/19 email from Ken Burke re: Amendment 4 QRT report, # 102 Ex. 271 6/7/19 email from Andrew Warren to SOE Latimer and other Hillsborough County officials re: Amendment 4, # 103 Ex. 272 Carey Haughwout Decl and Exhibits) (EBENSTEIN, JULIE) (Entered: 09/24/2019)

09/24/2019 168 ORDER CONFIRMING SCHEDULE. Signed by JUDGE ROBERT L HINKLE on 9/24/19. (sms) (Entered: 09/24/2019)

09/24/2019 169 ORDER ACCEPTING ECF Nos. 152 AND 153 AS TIMELY. Signed by JUDGE ROBERT L HINKLE on 09/24/2019. (toy) (Entered: 09/24/2019)

09/24/2019

170 MOTION for Leave to File Out of Time Supplemental Declarations and Exhibits in Support of Motion for Preliminary Injunction by FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, KEITH IVEY, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, JERMAINE MILLER, EMORY MARQUIS MITCHELL, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BETTY RIDDLE, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT. (Attachments: # 1 Pls.' Br. in Supp. of Mot. for Leave, # 2 Ex. A Wright Decl., # 3 Ex. B Martinez Decl., # 4 Ex. C Oats Decl., # 5 Ex. D Blake Decl.) (EBENSTEIN, JULIE) (Entered: 09/24/2019)

09/24/2019

Set Response to Motion Deadline as to 170 MOTION for Leave to File Out of Time Supplemental Declarations and Exhibits in Support of Motion for Preliminary Injunction. (Internal deadline for referral to judge if response not filed earlier: 10/8/2019). (toy) (Entered: 09/25/2019)

09/26/2019

171 NOTICE of Plaintiffs' Northern District of Florida Local Rule 7.1 Certification by FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, KEITH IVEY, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, JERMAINE MILLER, EMORY MARQUIS MITCHELL, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BETTY RIDDLE, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT re 170 MOTION for Leave to File Out of Time Supplemental Declarations and Exhibits in Support of Motion for Preliminary Injunction (EBENSTEIN, JULIE) (Entered: 09/26/2019)

09/26/2019

172 MOTION to Certify Class by LEE HOFFMAN, BONNIE RAYSOR, DIANE SHERRILL. (Internal deadline for referral to judge if response not filed earlier: 10/10/2019). (Attachments: # 1 Memorandum in Support of Raysor Plaintiffs' Class Certification Motion, # 2 Exhibit 1 (Raysor Declaration), # 3 Exhibit 2 (Sherrill Declaration), # 4 Exhibit 3 (Hoffman Declaration), # 5 Exhibit 4 (Dunn Declaration), # 6 Exhibit 5 (Gaber Declaration)) (GABER, MARK) (Entered: 09/26/2019)

09/27/2019

173 MOTION to File Amicus Brief by Florida Rights Restoration Coalition. (Internal deadline for referral to judge if response not filed earlier: 10/11/2019). (Attachments: # 1 Exhibit A - FRRC Amicus Brief, # 2 Exhibit B - Proposed Order) (TREVISANI, DANTE) (Entered: 09/27/2019)

09/27/2019 174 MOTION to Appear Pro Hac Vice by Chiraag Bains.( Filing fee $ 201 receipt number AFLNDC-4635253.) by Florida Rights Restoration Coalition. (BAINS, CHIRAAG) (Entered: 09/27/2019)

09/27/2019 175 MOTION to Appear Pro Hac Vice by Naila Awan.( Filing fee $ 201 receipt number AFLNDC-4635308.) by Florida Rights Restoration Coalition. (AWAN, NAILA) (Entered: 09/27/2019)

09/27/2019 176 NOTICE of Appearance by DANTE PASQUALE TREVISANI on behalf of Florida Rights Restoration Coalition (TREVISANI, DANTE) (Entered: 09/27/2019)

09/27/2019

177 Unopposed MOTION for Leave to File a Reply Memorandum of Law in Further Support of Motion for Preliminary Injunction in Excess of the Word Limit by FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, KEITH IVEY, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, JERMAINE MILLER, EMORY MARQUIS MITCHELL, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BETTY RIDDLE, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT. (Attachments: # 1 Pls.' Reply in Supp. of Mot. for Preliminary Injunction, # 2 Index to Pls.' Reply in Supp. of PI) (EBENSTEIN, JULIE) Modified on 9/30/2019 to match the PDF title (toy). (Entered: 09/27/2019)

09/30/2019

ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE MICHAEL J FRANK notified that action is needed Re: 175 MOTION to Appear Pro Hac Vice by Naila Awan, 142 MOTION to Appear Pro Hac Vice by Jennifer A. Holmes, 174 MOTION to Appear Pro Hac Vice by Chiraag Bains. Referred to MICHAEL J FRANK. (toy) (Entered: 09/30/2019)

09/30/2019 178 ORDER GRANTING 177 LEAVE TO FILE A REPLY MEMORANDUM OF EXCESSIVE LENGTH. The reply memorandum,

ECF No. 177 -1, is deemed properly filed. Signed by JUDGE ROBERT L HINKLE on 09/30/2019. (toy) (Entered: 09/30/2019)

09/30/2019

179 ORDER ON FRRC'S 173 MOTION FOR LEAVE TO FILE ITS AMICUS BRIEF. FRRC's brief is untimely. This ordinarily would end consideration of its motion for leave. Here, though, the schedule has been compressed. At the preliminary-injunction hearing, the parties may address the motion for leave and the substantive arguments set out in the brief. No party, proposed intervenor, or proposed amicus should take this as license to tender untimely filings. Signed by JUDGE ROBERT L HINKLE on 09/30/2019. (toy) (Entered: 09/30/2019)

09/30/2019

180 ORDER granting 142 Motion to Appear Pro Hac Vice. Attorney Jennifer A. Holmes is admitted pro hac vice to represent Plaintiffs pursuant to Local Rule 11.1(c). Signed by MAGISTRATE JUDGE MICHAEL J FRANK on 9/30/2019. (jcw) (Entered: 09/30/2019)

09/30/2019

181 ORDER granting 175 Motion to Appear Pro Hac Vice. Attorney Naila S. Awan is admitted pro hac vice to represent proposed amicus curiae, Florida Rights Restoration Coalition, pursuant to Local Rule 11.1(c). Signed by MAGISTRATE JUDGE MICHAEL J FRANK on 9/30/2019. (jcw) (Entered: 09/30/2019)

09/30/2019

182 ORDER granting 174 Motion to Appear Pro Hac Vice. Attorney Chiraag Bains is admitted pro hac vice to represent proposed amicus curiae, Florida Rights Restoration Coalition, pursuant to Local Rule 11.1(c). Signed by MAGISTRATE JUDGE MICHAEL J FRANK on 9/30/2019. (jcw) (Entered: 09/30/2019)

10/01/2019 183 AFFIDAVIT of Service of Summons & Complaint served on Frances Frazier on behalf of CRAIG LATIMER on 09/30/2019. (toy) (Entered: 10/01/2019)

10/02/2019 184 AFFIDAVIT of Service for Summons & Complaint served on Nick Primose on behalf of RON DESANTIS on 10/01/2019. (toy) (Entered: 10/02/2019)

10/02/2019

185 SCHEDULING ORDER. The preliminary-injunction hearing 109 remains scheduled for October 7, 2019 at 9:00 a.m. If not completed that day, the hearing will continue on October 8. But court will not be in session after 4:00 p.m. on October 8 or at any time on October 9. If necessary, the hearing will continue on October 10. Signed by JUDGE ROBERT L HINKLE on 10/02/2019. (toy) (Entered: 10/02/2019)

10/02/2019

186 Amended MOTION to Appear Pro Hac Vice re 142 MOTION to Appear Pro Hac Vice by Jennifer A. Holmes.( Filing fee $ 201 receipt number AFLNDC-4620413.) by FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, KEITH IVEY, LEAGUE OF WOMEN

VOTERS OF FLORIDA, KAREN LEICHT, JERMAINE MILLER, EMORY MARQUIS MITCHELL, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BETTY RIDDLE, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT. (Attachments: # 1 Certificate of Good Standing) (HOLMES, JENNIFER) (Entered: 10/02/2019)

10/03/2019

ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE MICHAEL J FRANK notified that action is needed Re: 186 Amended MOTION to Appear Pro Hac Vice re 142 MOTION to Appear Pro Hac Vice by Jennifer A. Holmes.( Filing fee $ 201 receipt number AFLNDC-4620413.) . Referred to MICHAEL J FRANK. (toy) (Entered: 10/03/2019)

10/03/2019

187 Unopposed MOTION To Excuse Appearance at October 7, 2019 Hearing or, in the alternative, Appear by Telephone by MICHAEL BENNETT, BILL COWLES, LESLIE ROSSWAY SWAN, RON TURNER. (SHANNIN, NICHOLAS) Modified on 10/3/2019 to match PDF title (toy). (Entered: 10/03/2019)

10/03/2019

188 ORDER granting 186 Amended MOTION to Appear Pro Hac Vice. Attorney Jennifer A. Holmes is admitted pro hac vice to represent the "Gruver Plaintiffs" pursuant to Local Rule 11.1(c). Signed by MAGISTRATE JUDGE MICHAEL J FRANK on 10/3/2019. (jcw) (Entered: 10/03/2019)

10/03/2019 189 ORDER ON TIME LIMITS. Signed by JUDGE ROBERT L HINKLE on 10/3/2019. (MKB) (Entered: 10/03/2019)

10/03/2019

190 MOTION for Leave to File Exhibits by RON DESANTIS, LAUREL M LEE. (Attachments: # 1 Exhibit Hearing Exhibit List, # 2 Exhibit 23Deposition of Plaintiff McCoy, # 3 Exhibit 24- Deposition of Plaintiff Singleton, # 4 Exhibit 25- Deposition of Expert Smith) (PRICE, TARA). (Entered: 10/03/2019)

10/04/2019 191 ORDER ON ATTENDANCE AT HEARING. Signed by JUDGE ROBERT L HINKLE on 10/4/19. (sms) (Entered: 10/04/2019)

10/04/2019

192 MOTION to Appear Pro Hac Vice by Pietro Signoracci.( Filing fee $ 201 receipt number AFLNDC-4643293.) by FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, KEITH IVEY, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, JERMAINE MILLER, EMORY MARQUIS MITCHELL, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BETTY RIDDLE, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT. (Attachments: # 1 Certificate of Good Standing) (SIGNORACCI, PIETRO) (Entered: 10/04/2019)

10/04/2019

193 MOTION to Appear Pro Hac Vice by David Giller.( Filing fee $ 201 receipt number AFLNDC-4643345.) by FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, KEITH IVEY, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, JERMAINE MILLER, EMORY MARQUIS MITCHELL, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BETTY RIDDLE, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT. (Attachments: # 1 Certificate of Good Standing) (GILLER, DAVID) (Entered: 10/04/2019)

10/04/2019

194 Consent MOTION for Leave to File Supplemental Exhibits by FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, LEE HOFFMAN, KEITH IVEY, KELVIN LEON JONES, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, ROSEMARY MCCOY, LUIS A MENDEZ, JERMAINE MILLER, EMORY MARQUIS MITCHELL, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BONNIE RAYSOR, BETTY RIDDLE, DIANE SHERRILL, SHEILA SINGLETON, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT. (Attachments: # 1 Proposed Exhibit 276 Transcript of Deposition of Carolyn Timmann, # 2 Ex. 1 to Timmann Deposition, # 3 Ex. 2 to Timmann Deposition, # 4 Ex. 3 Part A to Timmann Deposition, # 5 Ex. 3 Part B to Timmann Deposition, # 6 Ex. 3 Part C to Timmann Deposition, # 7 Ex. 4 to Timmann Deposition, # 8 Ex. 5 to Timmann Deposition, # 9 Ex. 6 to Timmann Deposition, # 10 Ex. 7 to Timmann Deposition, # 11 Ex. 8 to Timmann Deposition, # 12 Ex. 9 to Timmann Deposition, # 13 Ex. 10 Part A to Timmann Deposition, # 14 Ex. 10 Part B to Timmann Deposition, # 15 Ex. 11 to Timmann Deposition, # 16 Ex. 12 to Timmann Deposition, # 17 Ex. 13 to Timmann Deposition, # 18 Ex. 14 to Timmann Deposition, # 19 Ex. 15 to Timmann Deposition, # 20 Ex. 16 to Timmann Deposition, # 21 Ex. 17 to Timmann Deposition, # 22 Ex. 18 to Timmann Deposition, # 23 Ex. 19 to Timmann Deposition, # 24 Ex. 20 to Timmann Deposition, # 25 Ex. 21 to Timmann Deposition, # 26 Ex. 22 to Timmann Deposition, # 27 Ex. 23 to Timmann Deposition, # 28 Ex. 24 to Timmann Deposition, # 29 Ex. 25 to Timmann Deposition, # 30 Ex. 26 to Timmann Deposition, # 31 Ex. 27 to Timmann Deposition, # 32 Proposed Exhibit 278 Transcript of Deposition of Michael Barber, # 33 Ex. 1 to Barber Deposition, # 34 Ex. 2 to Barber Deposition, # 35 Ex. 3 to Barber Deposition, # 36 Ex. 4 to Barber Deposition, # 37 Ex. 5 to Barber Deposition, # 38 Ex. 6 to Barber Deposition, # 39 Ex. 7 to Barber Deposition, # 40 Ex. 8 to Barber Deposition, # 41 Ex. 9 Part A to Barber Deposition, # 42 Ex. 9 Part B to Barber Deposition) (SWEREN-BECKER, ELIZA) (Entered: 10/04/2019)

10/04/2019 195 MOTION in Limine by LAUREL M LEE. (Attachments: # 1 Exhibit 1Sept. 30 Email T. Price to M. Steinberg, # 2 Exhibit 2-McCoy Responses to Secretary's Interrogatories, # 3 Exhibit 3-Sept. 27 Email L. Aden to T.

Price, # 4 Exhibit 4-Oct. 2 Email L. Aden to T. Price) (PRICE, TARA) (Entered: 10/04/2019)

10/04/2019 196 MOTION for Extension of Time to File Response/Reply as to 172 MOTION to Certify Class by LAUREL M LEE. (PRICE, TARA) (Entered: 10/04/2019)

10/04/2019

Set Response to Motion Deadline as to 195 MOTION in Limine . (Internal deadline for referral to judge if response not filed earlier: 10/18/2019). (toy) (Entered: 10/07/2019)

10/04/2019

Set Response to Motion Deadline as to 196 MOTION for Extension of Time to File Response/Reply as to 172 MOTION to Certify Class . (Internal deadline for referral to judge if response not filed earlier: 10/18/2019). (toy) (Entered: 10/07/2019)

10/06/2019

197 RESPONSE to Motion re 196 MOTION for Extension of Time to File Response/Reply as to 172 MOTION to Certify Class filed by LEE HOFFMAN, BONNIE RAYSOR, DIANE SHERRILL. (Attachments: # 1 Exhibit 1 (9/17/19 Counsel Email re Canceling Raysor Plaintiffs' Depositions)) (GABER, MARK) (Entered: 10/06/2019)

10/06/2019

198 MEMORANDUM in Opposition re 195 MOTION in Limine to Exclude Evidence filed by FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, KEITH IVEY, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, JERMAINE MILLER, EMORY MARQUIS MITCHELL, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BETTY RIDDLE, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT. (ADEN, LEAH) (Entered: 10/06/2019)

10/07/2019

ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE MICHAEL J FRANK notified that action is needed Re: 193 MOTION to Appear Pro Hac Vice by David Giller.( Filing fee $ 201 receipt number AFLNDC-4643345.), 192 MOTION to Appear Pro Hac Vice by Pietro Signoracci.( Filing fee $ 201 receipt number AFLNDC-4643293.). Referred to MICHAEL J FRANK. (toy) (Entered: 10/07/2019)

10/07/2019

199 ORDER granting 193 Motion to Appear Pro Hac Vice. Attorney David Giller is admitted pro hac vice to represent Plaintiffs Jeff Gruver, Emory Marquis "Marq" Mitchell, Betty Riddle, Kristopher Wrench, Keith Ivey, Karen Leicht, Raquel Wright, Steven Phalen, Clifford Tyson, Jermaine Miller, Florida State Conference of the NAACP, Orange County Branch of the NAACP, and the League of Women Voters of Florida, pursuant to Local Rule 11.1(c). Signed by MAGISTRATE JUDGE MICHAEL J FRANK on 10/7/2019. (jcw) (Entered: 10/07/2019)

10/07/2019

200 ORDER granting 192 Motion to Appear Pro Hac Vice. Attorney Pietro Signoracci is admitted pro hac vice to represent Plaintiffs Jeff Gruver, Emory Marquis "Marq" Mitchell, Betty Riddle, Kristopher Wrench, Keith Ivey, Karen Leicht, Raquel Wright, Steven Phalen, Clifford Tyson, Jermaine Miller, Florida State Conference of the NAACP, Orange County Branch of the NAACP, and the League of Women Voters of Florida, pursuant to Local Rule 11.1(c). Signed by MAGISTRATE JUDGE MICHAEL J FRANK on 10/7/2019. (jcw) (Entered: 10/07/2019)

10/07/2019 201 Minute Entry for proceedings held before JUDGE ROBERT L HINKLE: Preliminary Injunction Hearing (Day 1) held on 10/7/2019. (Court Reporter Judy Gagnon) (ckm) (Entered: 10/07/2019)

10/08/2019

202 Minute Entry for proceedings held before JUDGE ROBERT L HINKLE: Preliminary Injunction Hearing (Day 2) held on 10/8/2019. Ruling by Court: Motion for Leave to File Amicus Brief is granted. Motion in Limine is denied. Motion for Preliminary Injunction will be ruled on in a forthcoming order. No class certification response is due until ruling on preliminary injunction. Once the ruling on preliminary injunction has been rendered, Plaintiff has one week to adhere to or reform the proposed class. Defense will then have three weeks to respond. Leave is granted to amend the complaint. Plaintiffs have three weeks (until October 29) to file. Trial will be set for April 6, 2020. An order will follow. (Court Reporter Judy Gagnon) (Attachments: # 1 Exhibit List) (ckm) (Entered: 10/08/2019)

10/08/2019

203 SCHEDULING ORDER. The trial is set for the two-week trial period that begins on Monday, April 6, 2020 and is tentatively first on the docket. Within 7 days after entry of an order on the plaintiffs' preliminaryinjunction motion, the plaintiffs must file a supplemental memorandum in support of their class- certification motion that (a) sets out their proposed class definition or definitions and (b) addresses any new class-certification issues arising from the preliminary-injunction ruling. The deadline for the defendants' response to the class-certification motion is 21 days after the plaintiffs file their supplemental memorandum. The discovery deadline is January 27, 2020. The deadline for Federal Rule of Civil Procedure 26(a)(2) and 26(a)(3) disclosures is March 2, 2020. The deadline for trial briefs is March 23, 2020. The motion for leave to file an amicus brief, ECF No. 173 , is granted. The brief is deemed properly filed. The motions for leave to file exhibits after the deadlines, ECF Nos. 170 , 190 , and 194 are granted. The exhibits are deemed part of the preliminary injunction record. The motion in limine, ECF No. 195 , seeking to exclude evidence of racial discrimination or racially disparate impact is denied. The motion, ECF No. 196 , to extend the deadline to respond to the class certification motion is granted to the extent set out above and otherwise denied. Leave is granted for the plaintiffs in each case to file an amended complaint. The deadline is October 29, 2019. (Discovery due by 1/27/2020., Jury Trial set for 4/6/2020 08:15 AM in U.S. Courthouse Tallahassee before JUDGE

ROBERT L HINKLE., Amended Complaint due by 10/29 /2019., Trial Briefs Deadline - by 3/23/2020., Disclosure Deadline - by 3/2/2020.) Signed by JUDGE ROBERT L HINKLE on 10/08/2019. (toy) (Entered: 10/09/2019)

10/09/2019

Set Disclosure Deadlines per ECF# 203 - by 3/2/2020. (toy) (Entered: 10/09/2019)

10/11/2019 204 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Preliminary Injunction Hearing (Day 1) held on 10/7/2019 before Judge Robert L. Hinkle. Court Reporter: Judy Gagnon. Telephone number: 850-561-6822.

Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

Redaction Request due 10/18/2019. Release of Transcript Restriction set for 1/16/2020. (kjw) (Entered: 10/11/2019)
10/11/2019 205 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Preliminary Injunction Hearing (Day 2) held on 10/8/2019 before Judge Robert L. Hinkle. Court Reporter: Judy Gagnon. Telephone number: 850-561-6822.

Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

Redaction Request due 10/18/2019. Release of Transcript Restriction set for 1/16/2020. (kjw) (Entered: 10/11/2019)

10/18/2019

206 MOTION to Appear Pro Hac Vice by Whitley Carpenter.( Filing fee $ 201 receipt number AFLNDC-4661024.) by Whitley J. Carpenter, Forward Justice. (Attachments: # 1 Certificate of Good Standing) (CARPENTER, WHITLEY) (Entered: 10/18/2019)

10/18/2019

207 ORDER DENYING 97 THE MOTION TO DISMISS OR ABSTAIN AND GRANTING IN PART 108 MOTION FOR PRELIMINARY INJUNCTION. Signed by JUDGE ROBERT L HINKLE on 10/18/19. (sms) (Entered: 10/18/2019)

10/21/2019

ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE MICHAEL J FRANK notified that action is needed Re: 206 MOTION to Appear Pro Hac Vice by Whitley Carpenter.( Filing fee $ 201 receipt number AFLNDC-4661024.). Referred to MICHAEL J FRANK. (toy) (Entered: 10/21/2019)

10/23/2019 208 ORDER granting 206 Motion to Appear Pro Hac Vice. Attorney Whitley Carpenter is admitted pro hac vice to represent amicus curiai, Florida

Rights Restoration Coalition, pursuant to Local Rule 11.1(c). Signed by MAGISTRATE JUDGE MICHAEL J FRANK on 10/23/2019. (jcw) (Entered: 10/23/2019)

10/25/2019

209 Supplemental MOTION to Certify Class (Supplemental Memorandum in Support of Motion for Class Certification) by LEE HOFFMAN, BONNIE RAYSOR, DIANE SHERRILL. (Internal deadline for referral to judge if response not filed earlier: 11/8/2019). (GABER, MARK) (Entered: 10/25/2019)

10/30/2019

210 DOCKET ANNOTATION BY COURT: Per 207 Order at #8: " This injunction will take effect upon the posting of security in the amount of $100 for costs and damages sustained by a defendant found to have been wrongfully enjoined. " $100.00 received, FLN400037852 from Jimmy Midyette. (blb) (Entered: 10/30/2019)

10/31/2019

211 Emergency MOTION to Amend/Correct 207 Order on Motion to Dismiss, Order on Motion for Preliminary Injunction by FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, KEITH IVEY, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, JERMAINE MILLER, EMORY MARQUIS MITCHELL, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BETTY RIDDLE, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT. (Attachments: # 1 Exhibit A-Declaration of Jesse D. Hamilton, # 2 Exhibit B-Declaration of Latoya A. Moreland, # 3 Exhibit C-First Supplemental Declaration of Cutis D. Bryant, Jr., # 4 Exhibit D-First Supplemental Declaration of Anthrone J. Oats, # 5 Text of Proposed Order) (GILLER, DAVID) (Entered: 10/31/2019)

10/31/2019

Set Response to Motion Deadline as to 211 Emergency MOTION to Amend/Correct 207 Order on Motion to Dismiss, Order on Motion for Preliminary Injunction . (Internal deadline for referral to judge if response not filed earlier: 11/14/2019). (toy) (Entered: 11/01/2019)

11/01/2019 212 ORDER setting a schedule on the motion to expand the preliminary injunction. Signed by JUDGE ROBERT L HINKLE on 11/1/19. (RH) (Entered: 11/01/2019)

11/01/2019 213 ANSWER to 84 Amended Complaint by LAUREL M LEE. (JAZIL, MOHAMMAD) (Entered: 11/01/2019)

11/02/2019 214 ORDER REQUIRING A 7.1(C) CERTIFICATE ON THE RAYNOR PLAINTIFFS' MOTION FOR LEAVE TO AMEND. Signed by JUDGE ROBERT L HINKLE on 11/02/2019. (toy) (Entered: 11/04/2019)

11/04/2019 215 RULE 7.1(B) CONFERENCE STATEMENT by LEE HOFFMAN, BONNIE RAYSOR, DIANE SHERRILL. (LANG, DANIELLE) (Entered: 11/04/2019)

11/05/2019

216 ORDER GRANTING LEAVE TO FILE THE RAYSOR SECOND AMENDED COMPLAINT. The Raysor plaintiffs' motion, ECF No. 11 in Case No. 4:19cv301-RH-MJF, on which the defendant Secretary of State takes no position, for leave to file their second amended complaint is granted. The Raysor plaintiffs' second amended complaint, ECF No. 11 -2 in Case No. 4:19cv301-RH-MJF, is deemed filed as of November 5, 2019. Signed by JUDGE ROBERT L HINKLE on 11/05/2019. (toy) (Entered: 11/05/2019)

11/12/2019 217 Defendant Hillsborough County Supervisor of Elections' ANSWER to 84 Amended Complaint and Affirmative Defenses by CRAIG LATIMER. (TODD, STEPHEN) (Entered: 11/12/2019)

11/14/2019

218 RESPONSE in Opposition re 211 Emergency MOTION to Amend/Correct 207 Order on Motion to Dismiss, Order on Motion for Preliminary Injunction filed by LAUREL M LEE. (JAZIL, MOHAMMAD) (Entered: 11/14/2019)

11/15/2019

219 NOTICE OF APPEAL as to 207 Order on Motion to Dismiss, Order on Motion for Preliminary Injunction by RON DESANTIS, LAUREL M LEE. ( Filing fee $505 Receipt Number AFLNDC-4704095.) (PRIMROSE, NICHOLAS) (Entered: 11/15/2019)

11/15/2019

220 RESPONSE in Opposition re 172 MOTION to Certify Class , 209 Supplemental MOTION to Certify Class (Supplemental Memorandum in Support of Motion for Class Certification) filed by RON DESANTIS, LAUREL M LEE. (MEROS, GEORGE) (Entered: 11/15/2019)

11/15/2019

Set Deadlines re 219 Notice of Appeal : Clerk to check status of Appeal on 2/15/2020. Certificate of Readiness (FRAP 11) due by 11/29/2019. (toy) Modified on 11/18/2019 to correct date (toy). (Entered: 11/18/2019)

11/18/2019

221 Appeal Instructions re: 219 Notice of Appeal : The Transcript Request Form is available on the Internet at http://www.flnd.uscourts.gov/forms/Attorney/ECCA_transcript_form_filla ble.pdf **PLEASE NOTE** Separate forms must be filed for each court reporter. Transcript Order Form due by 12/2/2019. (toy) (Entered: 11/18/2019)

11/18/2019 222 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 219 Notice of Appeal. (toy) (Entered: 11/18/2019)

11/19/2019 223 NOTICE of Appearance by STEPHEN MARK TODD on behalf of CRAIG LATIMER (TODD, STEPHEN) (Entered: 11/19/2019)

11/19/2019 224 USCA PROCEDURAL LETTER re: 219 NOTICE OF APPEAL. USCA Appeal # 19-14551-B (toy) (Entered: 11/20/2019)

11/21/2019

225 MOTION for Leave to File a Reply to Defendant's Opposition to Plaintiffs' Motion to Expand the Preliminary Injunction by FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, KEITH IVEY, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, JERMAINE MILLER, EMORY MARQUIS MITCHELL, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BETTY RIDDLE, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT. (Attachments: # 1 Text of Proposed Order) (SIGNORACCI, PIETRO) (Entered: 11/21/2019)

11/21/2019

Set Response To Motion Deadline as to 225 MOTION for Leave to File a Reply to Defendant's Opposition to Plaintiffs' Motion to Expand the Preliminary Injunction. (Internal deadline for referral to judge if response not filed earlier: 12/5/2019). (toy) (Entered: 11/21/2019)

11/22/2019

226 ORDER DENYING 225 LEAVE TO FILE A REPLY MEMORANDUM IN SUPPORT OF THE MOTION TO EXPAND THE PRELIMINARY INJUNCTION. Signed by JUDGE ROBERT L HINKLE on 11/22/2019. (toy) (Entered: 11/22/2019)

11/22/2019

227 MOTION for Leave to File a Reply Memorandum in Support of Motion for Class Certification by LEE HOFFMAN, BONNIE RAYSOR, DIANE SHERRILL. (Attachments: # 1 Text of Proposed Order) (GABER, MARK) (Entered: 11/22/2019)

11/22/2019 228 ORDER SETTING A HEARING. Signed by JUDGE ROBERT L HINKLE on 11/22/19. (sms) (Entered: 11/22/2019)

11/22/2019

Set Response to Motion Deadline as to 227 MOTION for Leave to File a Reply Memorandum in Support of Motion for Class Certification. (Internal deadline for referral to judge if response not filed earlier: 12/6/2019). (toy) (Entered: 11/25/2019)

11/25/2019 229 TRANSCRIPT REQUEST by LAUREL M LEE for proceedings held on 10/07 -10/08 before Judge Hinkle, Court Reporter:Gagnon (DAVIS, ASHLEY) (Entered: 11/25/2019)

11/25/2019 230 TRANSCRIPT Acknowledgment - Part II, re 219 Notice of Appeal. Court Reporter: Judy Gagnon. (kjw) (Entered: 11/25/2019)

11/25/2019

231 NOTICE of Filing Transcript (Part III) by Court Reporter in District Court - re: 219 Notice of Appeal. Court Reporter: Judy Gagnon. (kjw) *Transcripts previously filed as ECF Documents 204 and 205. (Entered: 11/25/2019)

11/25/2019

232 NOTICE OF HEARING: Pending Motions Hearing (Oral Argument) set for 12/3/2019 10:00 AM before JUDGE ROBERT L HINKLE, United States Courthouse, Courtroom 5 East, 111 North Adams St., Tallahassee, Florida 32301.

NOTE: If you or any party, witness or attorney in this matter has a disability that requires special accommodation, such as a hearing impairment that requires a sign language interpreter or a wheelchair restriction that requires ramp access, please contact Cindy Markley at 850-521-3518 in the Clerk's Office at least one week prior to the hearing (or as soon as possible) so arrangements can be made.

s/ Cindy Markley Courtroom Deputy Clerk (ckm) (Entered: 11/25/2019)

11/27/2019

233 ORDER DENYING LEAVE TO FILE A REPLY MEMORANDUM IN SUPPORT OF THE CLASS-CERTIFICATION MOTION - The plaintiffs' motion, ECF No. 227 , for leave to file a reply memorandum in support of their class-certification motion is denied. Signed by JUDGE ROBERT L HINKLE on 11/27/2019. (ckm) (Entered: 11/27/2019)

11/27/2019 234 Joint MOTION to Stay by RON DESANTIS, LAUREL M LEE. (PRIMROSE, NICHOLAS) (Entered: 11/27/2019)

12/02/2019

235 Pursuant to F.R.A.P. 11(c), the Clerk of the District Court for the Northern District of Florida certifies that the record is complete for purposes of this appeal re: 219 Notice of Appeal, Appeal No. 19-14551-B. The entire record on appeal is available electronically. (toy) (Entered: 12/02/2019)

12/03/2019

236 Minute Entry for proceedings held before JUDGE ROBERT L HINKLE: Motions Hearing (Oral Argument) held on 12/3/2019. Court hears argument of counsel on pending motions. Ruling by Court: An order will follow. (Court Reporter Megan Hague) (ckm) (Entered: 12/03/2019)

12/03/2019 237 Sarasota County's ANSWER to Complaint by RON TURNER. (BENTLEY, MORGAN) (Entered: 12/03/2019)

12/03/2019 238 Manatee County's ANSWER to Complaint by MICHAEL BENNETT. (BENTLEY, MORGAN) (Entered: 12/03/2019)

12/05/2019 239 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Motion Proceedings held on 12/3/2019, before Judge Robert Hinkle. Court Reporter/Transcriber Megan A. Hague, Telephone number 850-422-0011.

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

Redaction Request due 12/12/2019. Release of Transcript Restriction set for 3/11/2020. (mah) (Entered: 12/05/2019)

12/09/2019 240 NOTICE of Filing the Restoration of Voting Rights Work Group Report by LAUREL M LEE (Attachments: # 1 Attachment A) (JAZIL, MOHAMMAD) (Entered: 12/09/2019)

12/10/2019

241 SUPPLEMENTAL ROA Pursuant to F.R.A.P. 11(c), the Clerk of the District Court for the Northern District of Florida certifies that the record is complete for purposes of this appeal re: 219 Notice of Appeal, Appeal No. 19-14551-B. The entire record on appeal is available electronically. **Transcript filed on 12/05/2019. (toy) (Entered: 12/10/2019)

12/13/2019

242 RESPONSE in Opposition re 234 Joint MOTION to Stay Pending Appeal filed by FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, KEITH IVEY, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, JERMAINE MILLER, EMORY MARQUIS MITCHELL, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BETTY RIDDLE, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT. (Attachments: # 1 Exhibit A - October 28 Email) (EBENSTEIN, JULIE) (Entered: 12/13/2019)

12/16/2019

243 ORDER EXTENDING THE DEADLINE TO RESPOND TO SPECIFIC SUBPOENAS AND ALLOWING FURTHER AGREED EXTENSIONS WITHOUT A COURT ORDER. The motion to extend the deadline to respond to specific subpoenas, ECF No. 39 in Case No. 4:19cv302, is granted. The deadline is extended to December 23, 2019. Signed by JUDGE ROBERT L HINKLE on 12/16/2019. (toy) (Entered: 12/16/2019)

12/19/2019 244 ORDER STAYING THE PRELIMINARY INJUNCTION IN PART re 234 . Signed by JUDGE ROBERT L HINKLE on 12/19/19. (sms) (Entered: 12/19/2019)

12/31/2019

245 SCHEDULING ORDER : Rule 26 Meeting Report due by 3/2/2020. Discovery due by 1/27/2020. Dispositive Motions to be filed by 2/17/2020. Pretrial Conference set for 3/26/2020 01:00 PM in U.S. Courthouse Tallahassee before JUDGE ROBERT L HINKLE. Bench Trial set for 4/6/2020 09:00 AM in U.S. Courthouse Tallahassee before JUDGE ROBERT L HINKLE. Signed by JUDGE ROBERT L HINKLE on 12/31/2020. (blb) Modified on 2/27/2020 to reflect bench trial (ckm). (Entered: 12/31/2019)

01/07/2020 246 NOTICE of Appearance by JOSHUA E PRATT on behalf of RON DESANTIS (PRATT, JOSHUA) (Entered: 01/07/2020)

01/08/2020 247 ORDER denying 211 Motion to Amend or Clarify the Preliminary Injunction. Signed by JUDGE ROBERT L HINKLE on 1/8/2020. (sms) (Entered: 01/08/2020)

01/08/2020 248 ORDER of USCA as to 219 Notice of Appeal filed by LAUREL M LEE, RON DESANTIS. (blb) (Entered: 01/13/2020)

01/13/2020

249 Pursuant to F.R.A.P. 11(c), the Clerk of the District Court for the Northern District of Florida certifies that the record is complete for purposes of this appeal re: 219 Notice of Appeal, Appeal No. 19-14551. The entire record on appeal is available electronically. (blb) (Entered: 01/13/2020)

01/13/2020 250 NOTICE of Appearance by EDWARD M WENGER on behalf of LAUREL M LEE (WENGER, EDWARD) (Entered: 01/13/2020)

01/14/2020

251 MOTION to Appear Pro Hac Vice by Anton Marino.( Filing fee $ 201 receipt number AFLNDC-4777836.) by CURTIS D BRAYNT, FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, JESSE D HAMILTON, KEITH IVEY, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, JERMAINE MILLER, EMORY MARQUIS MITCHELL, LATOYA A MORELAND, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BETTY RIDDLE, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT. (MARINO, ANTON) (Entered: 01/14/2020)

01/15/2020 252 MOTION to Compel Discovery Responses by LAUREL M LEE. (Attachments: # 1 Exhibit Exhibit 1) (PRICE, TARA) (Entered: 01/15/2020)

01/17/2020 253 ORDER ADVANCING THE DEADLINE TO RESPOND TO THE MOTION TO COMPEL. Signed by JUDGE ROBERT L HINKLE on 1/17/20. (sms) (Entered: 01/17/2020)

01/21/2020

Set Deadlines/Hearings (Internal deadline for referral to judge if response not filed earlier: 1/21/2020). (rcb) (Entered: 01/21/2020)

01/27/2020

254 MOTION to Extend Time(Raysor Plaintiffs' Motion to Extend Time to File Motion to Compel re Secretary of State's Discovery Responses) by LEE HOFFMAN, BONNIE RAYSOR, DIANE SHERRILL. (Attachments: # 1 Memorandum in Support, # 2 Exhibit A: Jan. 24 Jazil Email) (LANG, DANIELLE) (Entered: 01/27/2020)

01/27/2020

255 MOTION to Extend Time(Raysor Plaintiffs' Motion to Extend Time for Discovery Compliance for FCOR and Governor) by LEE HOFFMAN, BONNIE RAYSOR, DIANE SHERRILL. (Attachments: # 1 Memorandum in Support, # 2 Exhibit A: Appendix to FCOR Subpoena, # 3 Exhibit B: FCOR Production, # 4 Exhibit C: FCOR Written Objections, # 5 Exhibit D: State Defendants' 11th Circuit Reply Brief) (LANG, DANIELLE) (Entered: 01/27/2020)

01/28/2020 256 ORDER COMPELLING DISCOVERY FROM THE PLAINTIFFS JONES AND MENDEZ AND AWARDING ATTORNEY'S FEES

RE 252 . Signed by JUDGE ROBERT L HINKLE on 1/28/20. (sms) (Entered: 01/28/2020)

01/28/2020

257 ORDER EXTENDING THE DEADLINES FOR SPECIFIC DISCOVERY AND MOTIONS TO COMPEL.IT IS ORDERED: The motion to extend the deadline for specific discovery, ECF No. 255 , is granted. The motion to extend the deadline for motions to compel, ECF No. 254 , is granted. Signed by JUDGE ROBERT L HINKLE on 1/28/20. (blb) (Entered: 01/29/2020)

01/29/2020

Set Deadlines for Motion to Redetermine Attorney's fees amount. File by 2/11/2020. (blb) (Entered: 01/29/2020)

02/03/2020

258 MOTION to Compel Production by Secretary of State Lee by CURTIS D BRAYNT, FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, JESSE D HAMILTON, LEE HOFFMAN, KEITH IVEY, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, ROSEMARY MCCOY, JERMAINE MILLER, EMORY MARQUIS MITCHELL, LATOYA A MORELAND, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BONNIE RAYSOR, BETTY RIDDLE, DIANE SHERRILL, SHEILA SINGLETON, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT. (Attachments: # 1 Memorandum in Support, # 2 Exhibit A - Aug 26 2019 McKown Email Exchange, # 3 Exhibit B -- Privileged Documents Log, # 4 Exhibit C - Feb 3, 2020 Lang Email, # 5 Exhibit D - Feb 3, 2020 McVay Email, # 6 Exhibit E - 2019-07-09 First Set of Gruver RFPs, # 7 Exhibit F Raysor Plfs RFPs to SOS Lee, # 8 Exhibit G - 1-27-20 Matthews Depo, # 9 Exhibit H - Jan. 24, 2020 Jazil Email, # 10 Exhibit I - Jan. 24, 2020 Danahy Email, # 11 Exhibit J - Jan. 27, 2020 Price Email, # 12 Exhibit K Jan. 29, 2020 Danahy Email, # 13 Exhibit L - Jan. 30 2020 Price Email, # 14 Exhibit M - Jan 30, 2020 Danahy Email, # 15 Exhibit N - Jan. 32, 2020 Price Email) (LANG, DANIELLE) Modified Exhibit Titles on 2/4/2020 (blb). (Entered: 02/03/2020)

02/04/2020 259 ORDER SETTING PROCEDURES ON THE MOTION TO COMPEL. Signed by JUDGE ROBERT L HINKLE on 2/4/20. (sms) (Entered: 02/04/2020)

02/04/2020 260 NOTICE OF TELEPHONIC HEARING on 258 Motion to Compel: Telephonic Motion Hearing set for 2/14/2020 10:00 AM before JUDGE ROBERT L HINKLE.

Call in number: 888-684-8852 Access code: 3243416# Security code: 1234#

s/ Cindy Markley Courtroom Deputy Clerk (ckm) (Entered: 02/04/2020)

02/05/2020

Set Deadline per 259 ORDER: Defendant Secretary of State must file her response to the plaintiffs' motion to compel, ECF No. 258 , by 2/11/2020. (blb) (Entered: 02/05/2020)

02/05/2020

ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE MICHAEL J FRANK notified that action is needed Re: 251 MOTION to Appear Pro Hac Vice by Anton Marino.( Filing fee $ 201 receipt number AFLNDC-4777836.). Referred to MICHAEL J FRANK. (jcw) (Entered: 02/05/2020)

02/05/2020

261 ORDER granting 251 Motion to Appear Pro Hac Vice. Attorney Anton Marino is admitted pro hac vice to represent Plaintiffs Jeff Gruver, Emory Marquis Marq Mitchell, Betty Riddle, Kristopher Wrench, Keith Ivey, Karen Leicht, Raquel Wright, Steven Phalen, Clifford Tyson, Jermaine Miller, Jesse D. Hamilton, LaToya Moreland, Curtis D. Bryant, Jr., Florida State Conference of the NAACP, Orange County Branch of the NAACP, and the League of Women Voters of Florida pursuant to Local Rule 11.1(c). Signed by MAGISTRATE JUDGE MICHAEL J FRANK on 2/5/2020. (jcw) (Entered: 02/05/2020)

02/11/2020 262 NOTICE OF TELEPHONIC HEARING: Telephonic Status Conference set for 2/14/2020 10:00 AM before JUDGE ROBERT L HINKLE. The Motion Hearing also remains scheduled for the same time.

Call in number: 888-684-8852 Access code: 3243416# Security code: 1234#

s/ Cindy Markley Courtroom Deputy Clerk (ckm) (Entered: 02/11/2020)

02/11/2020

263 RESPONSE in Opposition re 258 MOTION to Compel Production by Secretary of State Lee filed by LAUREL M LEE. (Attachments: # 1 Exhibit 1- Amended Privilege Log, # 2 Exhibit 2- SOS Discovery Responses, # 3 Exhibit 3- McKown email dated Aug. 20, # 4 Exhibit 4Sweren-Becker email dated Aug. 21, # 5 Exhibit 5- Gruver Second Set of RFPs, # 6 Exhibit 6- Swain Declaration, # 7 Exhibit 7- McKown Affidavit, # 8 Exhibit 8- B. Riddle Second RFP Responses) (PRICE, TARA) (Entered: 02/11/2020)

02/11/2020

264 MOTION for Clarification and/or to Amend the Court's Scheduling Orders by LAUREL M LEE. (Attachments: # 1 Exhibit 1- Orange Cnty. NAACP Sept. 2019 Responses, # 2 Exhibit 2- Price and Aden emailsSept. 2019, # 3 Exhibit 3- Orange Cnty. NAACP Supplemental Responses, # 4 Exhibit 4- Orange Cnty. NAACP January 2020 Responses, # 5 Exhibit

5- Orange Cnty. NAACP 30(b)(6) Deposition, # 6 Exhibit 6- Gruver First Supplemental Initial Disclosures, # 7 Exhibit 7- Price and Aden emailsFeb. 2020) (PRICE, TARA) (Entered: 02/11/2020)

02/14/2020

265 Minute Entry for proceedings held before JUDGE ROBERT L HINKLE: Telephonic Motion Hearing and Status Conference held on 2/14/2020. Court hears argument of counsel on the Motion to Compel and the Motion to Clarify and/or Amend. Ruling by Court: The Motion to Compel is granted in part and the Motion to Clarify is granted. Expert names to be provided by February 24. Expert reports are due by March 2. Additional (rebuttal) expert names due by March 16. Depositions to be taken by March 23. Pretrial stipulation due by noon on March 25. Summary judgment motions due by February 18. An order is forthcoming. (Court Reporter Lisa Snyder) (ckm) (Entered: 02/14/2020)

02/18/2020

266 UNOPPOSED MOTION FOR LEAVE TO FILE MEMORANDUM IN SUPPORT OF THE OMNIBUS SUMMARY JUDGMENT MOTION IN EXCESS OF THE WORD LIMIT by RON DESANTIS, LAUREL M LEE. (Attachments: # 1 Proposed Memorandum) (WENGER, EDWARD) Modified Title on 2/19/2020 (blb). (Entered: 02/18/2020)

02/18/2020

267 OMNIBUS MOTION FOR SUMMARY JUDGMENT by RON DESANTIS, LAUREL M LEE. (Internal deadline for referral to judge if response to summary judgment not filed earlier: 3/10/2020). (WENGER, EDWARD) Modified Title on 2/19/2020 (blb). (Entered: 02/18/2020)

02/18/2020

268 MEMORANDUM in Support re 267 MOTION for Summary Judgment filed by RON DESANTIS, LAUREL M LEE. (Attachments: # 1 Exhibit A, DEPOSITION OF DESMOND MEADE, # 2 Exhibit B, DEPOSITION OF CORPORATE REPRESENTATIVE OF NAACP, # 3 Exhibit C), DEPOSITION OF CORPORATE REPRESENTATIVE OF LEAGUE OF WOMEN VOTERS OF FLORIDA, (WENGER, EDWARD) Modified Title and Exhibit Names on 2/19/2020 (blb). (Entered: 02/18/2020)

02/19/2020

269 DOCKET ANNOTATION BY COURT TO ALL COUNSEL: Counsel is advised that for all future pleadings, for this case and any future cases assigned to Judge Hinkle, any exhibit attached to a document filing should be properly identified. (Example: Deposition of John Doe rather than Exhibit A.) (blb) (Entered: 02/19/2020)

02/19/2020

270 ORDER GRANTING LEAVE TO FILE A MEMORANDUM OF EXCESSIVE LENGTH. The state defendants' unopposed motion, ECF No. 266 , to file a memorandum of excessive length is granted. The state defendants' memorandum, ECF No. 268 , is deemed properly filed on February 18, 2020. Signed by JUDGE ROBERT L HINKLE on 2/19/20. (blb) (Entered: 02/19/2020)

02/19/2020

271 USCA Opinion issued as JUDGMENT re: 219 Notice of Appeal filed by LAUREL M LEE, RON DESANTIS. AFFIRMED. State's motion to stay pending appeal is DENIED as moot. USCA # 19-14551-B. (blb) (Entered: 02/19/2020)

02/21/2020

272 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Telephonic Motion Hearing and Status Conference Proceedings held on 2/14/2020, before Judge Robert Hinkle. Court Reporter/Transcriber Lisa Snyder, Telephone number 850-597-4715.

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

Redaction Request due 2/28/2020. Release of Transcript Restriction set for 5/28/2020. (ls) (Entered: 02/21/2020)

02/24/2020

273 MCCOY PLAINTIFFS' SUBMISSION OF THE NAMES OF EXPERT WITNESSES PURSUANT TO THIS COURTS FEBRUARY 14, 2020 ORDER by ROSEMARY MCCOY. (ABUDU, NANCY) Modified Title on 2/25/2020 (blb). (Entered: 02/24/2020)

02/24/2020 274 ORDER AMENDING THE SCHEDULE AND SETTING PROCEDURES ON THE MOTION TO COMPEL RE 258 264 . Signed by JUDGE ROBERT L HINKLE on 2/24/20. (sms) (Entered: 02/24/2020)

02/24/2020

275 PLAINTIFFS' EXPERT WITNESS DISCLOSURE OF DRS. DAN A. SMITH , J. MORGAN KOUSSER, AND TRACI R. BURCH PURSUANT TO RULE 26(a)(2) by CURTIS D BRYANT, FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, JESSE D HAMILTON, KEITH IVEY, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, JERMAINE MILLER, EMORY MARQUIS MITCHELL, LATOYA A MORELAND, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BETTY RIDDLE, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT. (ADEN, LEAH) Modified Title on 2/25/2020 (blb). (Entered: 02/24/2020)

02/24/2020

276 THE GOVERNOR AND THE SECRETARY OF STATE'S EXPERT WITNESS DISCLOSURE by RON DESANTIS, LAUREL M LEE. (WENGER, EDWARD) Modified Title on 2/25/2020 (blb). (Entered: 02/24/2020)

02/25/2020

Set Deadlines per 274 ORDER AMENDING THE SCHEDULE AND SETTING PROCEDURES ON THE MOTION TO COMPEL: Secretary must file hard copies of the documents for in camera review by 3/5/2020. Dispositive Motions to be filed by 2/18/2020. Pretrial Stipulation due by 3/25/2020. (blb) (Entered: 02/25/2020)

03/02/2020 277 RULE 26 Disclosures by ROSEMARY MCCOY, SHEILA SINGLETON. (SHORT, CAREN) (Entered: 03/02/2020)

03/02/2020 278 Exhibit List Rule 26(a)(3) Disclosures by PETER ANTONACCI.. (PRICE, TARA) (Entered: 03/02/2020)

03/02/2020 279 Exhibit List Rule 26(a)(3) Disclosures by RON DESANTIS, LAUREL M LEE.. (Attachments: # 1 Exhibit A- Deposition Designations, # 2 Exhibit B- Exhibit List) (PRICE, TARA) (Entered: 03/02/2020)

03/02/2020 280 RULE 26 Disclosures by LAUREL M LEE. (WENGER, EDWARD) (Entered: 03/02/2020)

03/02/2020

281 NOTICE of Compliance with Expert Disclosure Deadline by CURTIS D BRAYNT, FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, JESSE D HAMILTON, KEITH IVEY, KELVIN LEON JONES, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, JERMAINE MILLER, EMORY MARQUIS MITCHELL, LATOYA A MORELAND, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BETTY RIDDLE, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT (ADEN, LEAH) (Entered: 03/02/2020)

03/02/2020

282 RULE 26 Disclosures by CURTIS D BRAYNT, FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, JESSE D HAMILTON, KEITH IVEY, KELVIN LEON JONES, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, JERMAINE MILLER, EMORY MARQUIS MITCHELL, LATOYA A MORELAND, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BETTY RIDDLE, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT. (Attachments: # 1 Exhibit A - Plaintiffs Trial Exhibit List) (ADEN, LEAH) (Entered: 03/02/2020)

03/06/2020

ACTION REQUIRED BY DISTRICT JUDGE: Chambers of JUDGE ROBERT L HINKLE notified that action is needed Re: 274 Order on Motion to Compel. Deadline to file hard copies of the documents for in camera review passed. (blb) (Entered: 03/06/2020)

03/09/2020

283 NOTICE of Filing of Plaintiffs' Objections to Defendants' Rule 26(a)(3) Pretrial Disclosures by CURTIS D BRAYNT, FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, JESSE D HAMILTON, KEITH IVEY, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, JERMAINE MILLER, EMORY MARQUIS MITCHELL, LATOYA A MORELAND, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BETTY RIDDLE, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT re 280 Rule 26 Disclosures, 279 Exhibit List (Attachments:

# 1 Exhibit A- Counter Designations) (EBENSTEIN, JULIE) (Entered: 03/09/2020)

03/09/2020

284 NOTICE of Filing Objections to Plaintiffs' Rule 26(a)(3) Disclosures by RON DESANTIS, LAUREL M LEE re 282 Rule 26 Disclosures, (Attachments: # 1 Exhibit A- Objections to Deposition Designations, # 2 Exhibit B- Objections to Plaintiffs' Exhibit List) (PRICE, TARA) (Entered: 03/09/2020)

03/10/2020

285 Consent MOTION for Leave to File Excess Pages by FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, KEITH IVEY, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, JERMAINE MILLER, EMORY MARQUIS MITCHELL, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BETTY RIDDLE, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT. (Attachments: # 1 Proposed Memorandum) (GILLER, DAVID) (Entered: 03/10/2020)

03/10/2020

286 MEMORANDUM in Opposition re 267 MOTION for Summary Judgment filed by FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, KEITH IVEY, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, JERMAINE MILLER, EMORY MARQUIS MITCHELL, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BETTY RIDDLE, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT. (Attachments: # 1 Declaration of David Giller in Opposition to Defendants' Motion for Summary Judgment, # 2 Exhibit 1 - Excerpts from Beverlye Neal Depo, # 3 Exhibit 2 - Excerpts from Cecile Scoon Depo, # 4 Exhibit 3 - Excerpts from Craig Latimer Depo, # 5 Exhibit 4 - Excerpts from Desmond Meade Depo, # 6 Exhibit 5 - Excerpts from Barton Depo, # 7 Exhibit 6 - Excerpts from Maria Matthews Depo 1, # 8 Exhibit 7 - Excerpts from Maria Matthews Depo 2, # 9 Exhibit 8 - Excerpts from Mark Earley Depo, # 10 Exhibit 9 - Excerpts from Ellison Depo, # 11 Exhibit 10 - Excerpts from M.J. Arrington Depo, # 12 Exhibit 11 - Second Supp. Expert Report Smith, # 13 Exhibit 12 - Expert Report - Kousser, # 14 Exhibit 13 - Expert Report - Burch, # 15 Exhibit 14 - OPPAGA Report, # 16 Exhibit 15 BVRS Memo, # 17 Exhibit 16 - Work Group Report, # 18 Exhibit 17 Referral Letter - Elections Fraud Compl., # 19 Exhibit 18 - J. Shang Deferred Prosecution Agreement, # 20 Exhibit 19 - Receipt for Singletary & McCoy, # 21 Exhibit 20 - Excerpt of Record, # 22 Exhibit 21 - Chart summarizing felony costs, # 23 Exhibit 22 - Letter from CLC to Secretary re NVRA, # 24 Exhibit 23 - Second Supp. Decl. of Curtis D. Bryant Jr., # 25 Exhibit 24 - Distribution Schedule of Court-Related Fees, # 26 Exhibit 25 - Rights Restoration Proposal - Miami-Dade County, # 27 Exhibit 26 - NAACP Voter Status Clarification Request) (SIGNORACCI, PIETRO) (Entered: 03/10/2020)

03/13/2020 287 RESPONSE by MICHAEL BENNETT re 286 Memorandum in Opposition to Motion,,,,,,, for SummaryJudgment. (BENTLEY, MORGAN) (Entered: 03/13/2020)
03/16/2020 288 AMENDED NOTICE OF HEARING (Changing to telephonic): The Pretrial Conference set for 3/26/2020 01:00 PM before JUDGE ROBERT L HINKLE will now take place by TELEPHONE.

Call in number: 888-684-8852 Access code: 3243416# Security code: 1234#

s/ Cindy Markley Courtroom Deputy Clerk (ckm) (Entered: 03/16/2020)

03/16/2020

289 Joint MOTION Status Conference by CURTIS D BRAYNT, FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, JESSE D HAMILTON, LEE HOFFMAN, KEITH IVEY, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, ROSEMARY MCCOY, JERMAINE MILLER, EMORY MARQUIS MITCHELL, LATOYA A MORELAND, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BONNIE RAYSOR, BETTY RIDDLE, DIANE SHERRILL, SHEILA SINGLETON, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT. (LANG, DANIELLE) (Entered: 03/16/2020)

03/16/2020 290 RULE 26 Disclosures by LAUREL M LEE. (WENGER, EDWARD) (Entered: 03/16/2020)

03/16/2020 291 RULE 26 Disclosures by LAUREL M LEE. (WENGER, EDWARD) (Entered: 03/16/2020)

03/16/2020

292 RULE 26 Disclosures by CURTIS D BRAYNT, FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, JESSE D HAMILTON, LEE HOFFMAN, KEITH IVEY, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, JERMAINE MILLER, EMORY MARQUIS MITCHELL, LATOYA A MORELAND, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BETTY RIDDLE, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT. (Attachments: # 1 Exhibit 1, REBUTTAL REPORT OF PROFESSOR TODD DONOVAN) (ADEN, LEAH) Modified Exhibit Title on 3/17/2020 (blb). (Entered: 03/16/2020)

03/17/2020 293 NOTICE OF TELEPHONIC HEARING (re: 289 Request) - Telephonic Status Conference set for 3/17/2020 10:45 AM before JUDGE ROBERT L HINKLE.

Call in number: 888-684-8852 Access code: 3243416# Security code: 1234#

s/ Cindy Markley Courtroom Deputy Clerk (ckm) (Entered: 03/17/2020)

03/17/2020

294 Minute Entry for proceedings held before JUDGE ROBERT L HINKLE: Telephonic Status Conference held on 3/17/2020. Parties discuss pending trial and court hears argument of counsel regarding rescheduling trial. Ruling by Court: Trial is rescheduled for April 27, 2020. Trial exhibits to be exchanged by March 23; attorney conference to take place by April 2; trial briefs and pretrial stipulation due by April 9. An order is forthcoming. (Court Reporter Lisa Snyder) (ckm) (Entered: 03/17/2020)

03/17/2020 295 MOTION for Leave to File Excess Pages by RON DESANTIS, LAUREL M LEE. (Attachments: # 1 Exhibit A) (WENGER, EDWARD) (Entered: 03/17/2020)

03/17/2020 296 REPLY to Response to Motion re 267 MOTION for Summary Judgment filed by RON DESANTIS, LAUREL M LEE. (Attachments: # 1 Exhibit A) (WENGER, EDWARD) (Entered: 03/17/2020)

03/18/2020

297 ORDER AMENDING THE SCHEDULE Re: 285 Consent MOTION for Leave to File Excess Pages, 295 MOTION for Leave to File Excess Pages. The trial is rescheduled for Monday, 4/27/2020 09:00 AM in U.S. Courthouse Tallahassee before JUDGE ROBERT L HINKLE., Pretrial Stipulation due by 4/9/2020, The consented motions to exceed word limits, ECF Nos. 285 and 295 , are granted. Signed by JUDGE ROBERT L HINKLE on 3/18/20. (blb) Modified on 3/19/2020 changing the bench trial time to 9:00 a.m. (ckm). (Entered: 03/18/2020)

03/20/2020

298 MOTION to Withdraw as Attorney (Jimmy Midyette) by CURTIS D BRAYNT, FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, JESSE D HAMILTON, KEITH IVEY, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, JERMAINE MILLER, EMORY MARQUIS MITCHELL, LATOYA A MORELAND, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BETTY RIDDLE, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT. (TILLEY, DANIEL) (Entered: 03/20/2020)

03/23/2020 299 Exhibit List by MARK EARLEY.. (HERRON, MARK) (Entered: 03/23/2020)

03/23/2020 300 Witness List by MARK EARLEY. (HERRON, MARK) (Entered: 03/23/2020)

03/23/2020 301 Exhibit List State Defendants' Supplemental Rule 26(a)(3) Disclosures by RON DESANTIS, LAUREL M LEE.. (Attachments: # 1 Exhibit ASupplemental Exhibit List) (PRICE, TARA) (Entered: 03/23/2020)

03/23/2020

302 RULE 26 Disclosures by LEE HOFFMAN, BONNIE RAYSOR, DIANE SHERRILL. (Attachments: # 1 Exhibit Plaintiffs' Amended Witness List, # 2 Exhibit Plaintiffs' Amended Exhibit List, # 3 Exhibit Plaintiffs' Supplemental Exhibit List) (DIAZ, JONATHAN) (Entered: 03/23/2020)

03/24/2020

303 ORDER GRANTING LEAVE TO WITHDRAWMIDYETTE. The motion for leave for attorney Jimmy Midyette to withdraw as counsel for the Gruver plaintiffs, ECF No. 298 , is granted, effective immediately. Signed by JUDGE ROBERT L HINKLE on 3/24/20. (blb) (Entered: 03/24/2020)

03/25/2020 304 MOTION in Limine to Exclude Testimony of Hannah Walker, Ph.D. by LAUREL M LEE. (Attachments: # 1 Exhibit, # 2 Exhibit) (JAZIL, MOHAMMAD) (Entered: 03/25/2020)

03/25/2020 305 MOTION in Limine to Exclude Testimony of Traci Burch, Ph.D. by LAUREL M LEE. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (JAZIL, MOHAMMAD) (Entered: 03/25/2020)

03/25/2020 306 MOTION in Limine to Exclude Testimony of J. Morgan Kousser, Ph.D. by LAUREL M LEE. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C) (JAZIL, MOHAMMAD) (Entered: 03/25/2020)

03/26/2020

307 AMENDED NOTICE OF HEARING (change in time) - Due to the high volume of calls coming into the AT&T conferencing line at the top of the hour, the time for this hearing is being changed. Telephonic Pretrial Conference and hearing on all pending motions set for 3/26/2020 01:22 PM before JUDGE ROBERT L HINKLE.

Call in number: 888-684-8852 Access code: 3243416# Security code: 1234#

NOTE: Each side will have 30 minutes for argument.

s/ Cindy Markley Courtroom Deputy Clerk (ckm) (Entered: 03/26/2020)

03/26/2020

308 Minute Entry for proceedings held before JUDGE ROBERT L HINKLE: Telephonic Pretrial Conference and Motions Hearing held on 3/26/2020. Court hears argument of counsel on Motion for Summary Judgment. Ruling by Court: Motion for Summary Judgment is denied. Other rulings will be made in a forthcoming order. Follow-up telephonic Pretrial Conference set for April 2, 2020 at 1:22 p.m. (Court Reporter Lisa Snyder) (ckm) (Entered: 03/26/2020)

03/27/2020 309 NOTICE OF TELEPHONIC HEARING: Telephonic Pretrial Conference set for 4/2/2020 01:22 PM before JUDGE ROBERT L HINKLE.

Call in number: 888-684-8852 Access code: 3243416# Security code: 1234#

s/ Cindy Markley Courtroom Deputy Clerk (ckm) (Entered: 03/27/2020)

03/30/2020

310 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Summary Judgment Motion and Pretrial Conference Telephonic Proceedings held on 3/26/2020, before Judge Robert Hinkle. Court Reporter/Transcriber Lisa Snyder, Telephone number 850-597-4715.

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

Redaction Request due 4/6/2020. Release of Transcript Restriction set for 7/6/2020. (ls) (Entered: 03/30/2020)

03/30/2020

311 ORDER DISMISSING THE EX POST FACTO, VOTING RIGHTS ACT, FLORIDA CONSTITUTION, AND MANDAMUS CLAIMS AND OTHERWISE DENYING SUMMARY JUDGMENT. The plaintiffs' Ex Post Facto, Voting Rights Act, Florida Constitution, and mandamus claims have been abandoned and are dismissed. In all other respects the defendants' summary-judgment motion, ECF No. 267 , is denied. I do not direct the entry of judgment under Federal Rule of Civil Procedure 54(b). Signed by JUDGE ROBERT L HINKLE on 3/30/20. (blb) (Entered: 03/30/2020)

03/31/2020

312 ORDER ON THE DEFENDANTS' MOTIONS IN LIMINE. The defendants' motion in limine to exclude testimony of Dr. Hannah Walker, ECF No. 304 , is denied. The defendants' motion in limine to exclude testimony of Dr. Traci Burch, ECF No. 305 , is denied. The defendants' motions in limine to exclude the testimony of Dr. J. Morgan Kousser, ECF No. 306 , is granted in part and denied in part. Testimony stating a conclusion about intent is excluded. Signed by JUDGE ROBERT L HINKLE on 3/31/20. (blb) (Entered: 03/31/2020)

04/02/2020 313 NOTICE of Preferred Method for Trial by LAUREL M LEE (JAZIL, MOHAMMAD) (Entered: 04/02/2020)

04/02/2020 314 NOTICE of Preferred Method for Trial by FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, KEITH IVEY, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT,

JERMAINE MILLER, EMORY MARQUIS MITCHELL, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BETTY RIDDLE, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT re 313 Notice (Other) (GILLER, DAVID) (Entered: 04/02/2020)

04/02/2020

315 Minute Entry for proceedings held before JUDGE ROBERT L HINKLE: Telephonic Pretrial Conference held. Court conducts pretrial conference and parties discuss trial procedures. Ruling by Court: Expert reports will be admitted and should be filed by April 10. Plaintiffs' declarations will be admitted. All experts who submitted reports will be available for direct and can be cross-examined. Exhibits to be filed by April 17. Another hearing will be set for April 8 at 1:22 using the national platform. An order is forthcoming. (Court Reporter Megan Hague) (ckm) (Entered: 04/02/2020)

04/02/2020 316 NOTICE OF HEARING: Pretrial Conference set for 4/8/2020 01:22 PM before JUDGE ROBERT L HINKLE using the national platform. More details will be provided at a later date.

s/ Cindy Markley Courtroom Deputy Clerk (ckm) (Entered: 04/02/2020)

04/02/2020

317 ORDER ON TRIAL PROCEDURES. First-level hearsay objections to previously served expert reports and previously filed declarations of the plaintiffs have been waived. These are admitted into evidence subject to other objections. All expert reports not yet in the electronic case file must be filed by April 10, 2020. All exhibits not yet in the electronic case file must be filed by April 17, 2020. By April 20, 2020, the party who intends to call a witness must file a notice listing each exhibit the party intends to use with the witness. By April 22, 2020, each other party must file a notice listing each additional exhibit the other party intends to use with the witness. The defendants' request to require the prefiling of direct testimony in writing is denied. By a separate notice, the clerk must set a hearing by videoconference on April 8, 2020. Signed by JUDGE ROBERT L HINKLE on 4/2/20. (blb) (Entered: 04/03/2020)

04/03/2020 318 RULE 26 Disclosures by ROSEMARY MCCOY, SHEILA SINGLETON. (Attachments: # 1 Exhibit Expert Report - Walker, # 2 Exhibit Expert Report - Weinstein) (SHORT, CAREN) (Entered: 04/03/2020)

04/03/2020

319 MOTION to Withdraw Plaintiff Jessie D. Hamilton by CURTIS D BRAYNT, FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, JESSE D HAMILTON, KEITH IVEY, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, JERMAINE MILLER, EMORY MARQUIS MITCHELL, LATOYA A MORELAND, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BETTY RIDDLE, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL

WRIGHT. (Attachments: # 1 Text of Proposed Order) (ADEN, LEAH) (Entered: 04/03/2020)

04/06/2020 320 MOTION for clarification by LAUREL M LEE. (JAZIL, MOHAMMAD) (Entered: 04/06/2020)

04/07/2020

321 ORDER CERTIFYING A CLASS AND SUBCLASS. The plaintiffs' class-certification motion, ECF No. 172 , as supplemented, ECF No. 209 , is granted with modified class definitions. Signed by JUDGE ROBERT L HINKLE on 4/7/20. (blb) (Entered: 04/07/2020)

04/07/2020

322 MOTION to Extend Time Re pretrial stipulations and trial brief by FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, KEITH IVEY, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, JERMAINE MILLER, EMORY MARQUIS MITCHELL, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BETTY RIDDLE, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT. (GILLER, DAVID) (Entered: 04/07/2020)

04/07/2020 323 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Telephonic Proceedings held on 4/2/2020, before Judge Robert L. Hinkle. Court Reporter/Transcriber Megan A. Hague, Telephone number 850-443-9797.

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

Redaction Request due 4/14/2020. Release of Transcript Restriction set for 7/13/2020. (mah) (Entered: 04/07/2020)
04/08/2020 324 Sealed Document (ckm) (Entered: 04/08/2020)

04/08/2020 325 NOTICE OF TELEPHONIC HEARING: Telephonic Pretrial Conference set for 4/8/2020 01:22 PM before JUDGE ROBERT L HINKLE.
Call in number: 571-353-2300 Access code: 159339561
s/ Cindy Markley Courtroom Deputy Clerk (ckm) (Entered: 04/08/2020)
04/08/2020 326 ORDER ON VIDEO AND AUDIO ACCESS TO TODAYS HEARING. Signed by JUDGE ROBERT L HINKLE on 4/8/20. (sms) (Entered: 04/08/2020)
04/08/2020 327 ORDER EXTENDING THE DEADLINE FOR THE PRETRIAL STIPULATION AND TRIAL BRIEF. The unopposed motion, ECF

No. 322 , to extend the deadline for the pretrial stipulation and trial brief is granted. The deadline is extended to 4/14/2020. Signed by JUDGE ROBERT L HINKLE on 4/8/20. (blb) (Entered: 04/08/2020)

04/08/2020

328 Minute Entry for proceedings held before JUDGE ROBERT L HINKLE: Video Pretrial Conference held on 4/8/2020. Court reviews best practices for virtual trial and hears argument of counsel on Motion for Clarification. Ruling by Court: Motion to Dismiss Hamilton is granted. Ruling on the Motion for Clarification will be made in an Order to follow. (Court Reporter Megan Hague) (ckm) (Entered: 04/08/2020)

04/08/2020 329 USCA ORDER ISSUED AS MANDATE as to 219 Notice of Appeal filed by LAUREL M LEE, RON DESANTIS. USCA Appeal # 19-14551-B. (blb) (Entered: 04/09/2020)

04/09/2020

330 ORDER DISMISSING MR. HAMILTON'S CLAIMS.The motion to withdraw Jesse D. Hamiltons claims, ECF No. 319 , is granted. Mr. Hamilton's claims are dismissed without prejudice. I do not direct the entry of judgment under Federal Rule of Civil Procedure 54(b). This order does not affect the claims of any other plaintiff or class member and does not affect Mr. Hamilton's possible membership in the class or subclass. Signed by JUDGE ROBERT L HINKLE on 4/9/20. (blb) (Entered: 04/09/2020)

04/09/2020

331 SECOND ORDER ON TRIAL PROCEDURES. The motion to clarify, ECF No. 320 , is granted. The April 2 order is clarified as set out in this order. Signed by JUDGE ROBERT L HINKLE on 4/9/20. (blb) (Entered: 04/09/2020)

04/09/2020

332 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Videoconference Proceedings - Pretrial held on 4/8/2020, before Judge Robert L. Hinkle. Court Reporter/Transcriber Megan A. Hague, Telephone number 850-4220011.

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

Redaction Request due 4/16/2020. Release of Transcript Restriction set for 7/15/2020. (mah) (Entered: 04/09/2020)

04/10/2020 333 NOTICE of Filing Expert Reports by LAUREL M LEE (JAZIL, MOHAMMAD) (Entered: 04/10/2020)

04/10/2020

334 NOTICE of Filing of Smith Second Supplemental Expert Report with Exhibits by CURTIS D BRAYNT, FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, KEITH IVEY, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, JERMAINE MILLER, EMORY MARQUIS MITCHELL, LATOYA A MORELAND, ORANGE

COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BETTY RIDDLE, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT (Attachments: # 1 Smith 2d Suppl. Expert Rep., # 2 Ex. 1 County Data, # 3 Ex. 2 FDC Report) (EBENSTEIN, JULIE) (Entered: 04/10/2020)

04/14/2020 335 TRIAL BRIEF by CHRISTINA WHITE. (VALDES, MICHAEL) (Entered: 04/14/2020)

04/14/2020 336 TRIAL BRIEF by RON DESANTIS, LAUREL M LEE. (WENGER, EDWARD) (Entered: 04/14/2020)

04/14/2020 337 STIPULATION Parties' Joint Stipulation as to the Admission of Certain Exhibits by RON DESANTIS, LAUREL M LEE. (PRICE, TARA) (Entered: 04/14/2020)

04/14/2020

338 NOTICE of State Defendants' Pretrial Statement by RON DESANTIS, LAUREL M LEE (Attachments: # 1 Exhibit A- State Defendants' April 6 Objections to Plaintiffs Revised Initial Exhibit List, # 2 Exhibit B- State Defendants' April 6 Objections to Plaintiffs' Supplemental Exhibit List, # 3 Exhibit C- Plaintiffs' April 6 Objections to State Defendants' Exhibits, # 4 Exhibit D- State Defendants' Amended Witness List) (PRICE, TARA) (Entered: 04/14/2020)

04/14/2020

339 NOTICE of Plaintiffs' Proposed Pretrial Stipulation by BONNIE RAYSOR, DIANE SHERRILL (Attachments: # 1 Exhibit 1: Plaintiffs' Exhibit List, # 2 Exhibit 2: Plaintiffs' Witness List) (GABER, MARK) (Entered: 04/14/2020)

04/14/2020

340 TRIAL BRIEF by CURTIS D BRAYNT, FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, KEITH IVEY, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, JERMAINE MILLER, EMORY MARQUIS MITCHELL, LATOYA A MORELAND, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BETTY RIDDLE, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT. (Attachments: # 1 App. A Statutory Costs, # 2 App. B Statutory Fines) (EBENSTEIN, JULIE) (Entered: 04/14/2020)

04/17/2020 341 NOTICE Joint Notice of Filing Video Links with the Court by RON DESANTIS, LAUREL M LEE (PRICE, TARA) (Entered: 04/17/2020)

04/17/2020

342 Exhibit List Notice of Filing Deposition Designations by RON DESANTIS, LAUREL M LEE.. (Attachments: # 1 Exhibit 1- D. Meade Designations, # 2 Exhibit 2- B. Neal Designations (NAACP Orange County), # 3 Exhibit 3- M. Ellison Designations (NAACP Florida), # 4 Exhibit 4- C. Scoon Designations (LWV Florida), # 5 Exhibit 5- R.

McCoy Designations, # 6 Exhibit 6- S. Singleton Designations) (PRICE, TARA) (Entered: 04/17/2020)

04/17/2020

343 NOTICE of Supplementing Exhibits and Discovery Responses by LAUREL M LEE (Attachments: # 1 Exhibit 167, Processing Potential Felon Match Files , # 2 Exhibit 168, Interagency Agreement, # 3 Exhibit 169, Florida Voter Registration Application, # 4 Exhibit 170, Florida Voter Registration Application ) (JAZIL, MOHAMMAD) Modified Titles of Exhibits on 4/20/2020 (blb). (Entered: 04/17/2020)

04/17/2020

344 Exhibit List by RON DESANTIS, LAUREL M LEE.. (Attachments: # 1 Exhibit A- State Defendants' Exhibit List, # 2 Exhibit 26- FL SC Opinion Jan. 2020, # 3 Exhibit 28- March 11 letter, # 4 Exhibit 29- D. Meade notice of taking deposition, # 5 Exhibit 30- About D. Meade, # 6 Exhibit 31- M. Marshall email re FFD tracking, # 7 Exhibit 32- FRR Research Briefing, # 8 Exhibit 33- Voting Rights Amendment Telephone Survey, # 9 Exhibit 34- Recap of ballot language, # 10 Exhibit 35Common Questions, # 11 Exhibit 36- About the Issue, # 12 Exhibit 37Voting Restoration Amendment Qualifies, # 13 Exhibit 38- Second Chances Campaign, # 14 Exhibit 39- Economic Study on Amend. 4, # 15 Exhibit 40- Previous Research, # 16 Exhibit 41- Floridians ready to make history, # 17 Exhibit 42- National Military Veterans Organization, # 18 Exhibit 43- 2 million calls, 3 million doors, # 19 Exhibit 44- M. Matthews deposition, # 20 Exhibit 45- Composite Gruver Ps Interrogatory Responses) (PRICE, TARA) (Entered: 04/17/2020)

04/17/2020

345 Exhibit List by RON DESANTIS, LAUREL M LEE.. (Attachments: # 1 Exhibit 46- Composite Gruver P responses to RFPs, # 2 Exhibit 47Composite McCoy P responses to Interrogatories, # 3 Exhibit 48Composite McCoy P responses to RFPs, # 4 Exhibit 49- Composite Raysor responses to Interrogatories, # 5 Exhibit 50- Composite Raysor responses to RFPs, # 6 Exhibit 51- Composite Jones discovery responses, # 7 Exhibit 52- Composite Mendez discovery responses, # 8 Exhibit 53- BVRS Processing Potential Felon Match Files, # 9 Exhibit 54- BVRS Quick Reference, # 10 Exhibit 55- BVRS Internal Resource Guide, # 11 Exhibit 56- Interstate Cases, # 12 Exhibit 57- Budget Amendment Request, # 13 Exhibit 58- Florida SC OA transcript- Nov. 2019, # 14 Exhibit 59Secretary's Appendix dated Sept. 2019, # 15 Exhibit 60- Secretary's Appendix dated Oct. 2019, # 16 Exhibit 61- Calculating/Messaging People Affected by Amend. 4, # 17 Exhibit 62- ACLU email dated Jan. 21, 2019 regarding written comments, # 18 Exhibit 63- ACLU written comments dated Jan. 21, 2019, # 19 Exhibit 64- ACLU email dated March 11, 2019, # 20 Exhibit 65- ACLU March 11, 2019 letter to Secretary) (PRICE, TARA) (Entered: 04/17/2020)

04/17/2020 346 Exhibit List by RON DESANTIS, LAUREL M LEE.. (Attachments: # 1 Exhibit 66- Barber Report, # 2 Exhibit 67- M. Matthews Oct. 28, 2019

email, # 3 Exhibit 68- M. Matthews Dec. 20, 2019 email, # 4 Exhibit 69ACLU March 22, 2019 email, # 5 Exhibit 70- ACLU March 22, 2019 bill analysis, # 6 Exhibit 71- ACLU March 25, 2019 email, # 7 Exhibit 72ACLU March 25, 2019 written testimony, # 8 Exhibit 73- ACLU March 25, 2019 email regarding talking points, # 9 Exhibit 74- Sen. Thurston April 3, 2019 email, # 10 Exhibit 75- ACLU April 7, 2019 email, # 11 Exhibit 76- ACLU April 8, 2019 written testimony, # 12 Exhibit 77FRRC April 19, 2019 email, # 13 Exhibit 78- FRRC draft amendment, # 14 Exhibit 79- ACLU April 23, 2019 email, # 15 Exhibit 80- ACLU April 22, 2019 written testimony, # 16 Exhibit 81- LWVF April 23, 2019 email, # 17 Exhibit 82- LWVF April 23, 2019 letter, # 18 Exhibit 83ACLU email dated April 29, 2019 to Senate, # 19 Exhibit 84- ACLU written testimony dated April 28, 2019, # 20 Exhibit 85- NAACP April 30, 2019 email to Senate, # 21 Exhibit 86- NAACP April 30, 2019 written position, # 22 Exhibit 87- LWVF April 30, 2019 email, # 23 Exhibit 88LWVF April 30, 2019 written position, # 24 Exhibit 89- NAACP May 28, 2019 email to Sen. Thurston, # 25 Exhibit 90- NAACP Amend. 4 talking points) (PRICE, TARA) (Entered: 04/17/2020)

04/17/2020

347 Exhibit List by RON DESANTIS, LAUREL M LEE.. (Attachments: # 1 Exhibit 91- Sen. Pizzo May 31, 2019 email, # 2 Exhibit 92- ACLU Nov. 8, 2019 email to Sen. Brandes, # 3 Exhibit 93- FL Clerks Nov 13, 2019 email regarding collections data, # 4 Exhibit 94- FL Clerks collections data, # 5 Exhibit 95- LWVF Nov. 26, 2019 email to Sen. Brandes, # 6 Exhibit 96- ACLU April 3, 2019 email to House State Affairs, # 7 Exhibit 97- ACLU April 4, 2019 written testimony, # 8 Exhibit 98- ACLU April 7, 2019 email to Rep. Diamond on civil liens and ballot interpretation, # 9 Exhibit 99- ACLU April 9, 2019 email to Judiciary, # 10 Exhibit 100- ACLU April 9, 2019 written testimony, # 11 Exhibit 101- ACLU email to Rep. Diamond regarding Judiciary comments, # 12 Exhibit 102- LWVF April 18, 2019 email to House, # 13 Exhibit 103LWVF April 17, 2019 written position, # 14 Exhibit 104- NAACP April 22, 2019 email to Florida House, # 15 Exhibit 105- NAACP April 22, 2019 written position, # 16 Exhibit 106- ACLU April 22 email to House, # 17 Exhibit 107- ACLU April 22, 2019 written testimony, # 18 Exhibit 108- ACLU April 22, 109 email to Rep. Diamond with 7089 follow up, # 19 Exhibit 109- House April 23, 2019 email regarding ACLU's questions and amendments, # 20 Exhibit 110- ACLU April 23, 2019 email to Rep. Diamond with proposed questions and debate information, # 21 Exhibit 111- ACLU proposed questions on 7089, # 22 Exhibit 112- ACLU proposed questions for Rep. Diamond, # 23 Exhibit 113- LWVF April 23, 2019 email, # 24 Exhibit 114- LWVF April 23, 2019 written position, # 25 Exhibit 115- House March 21, 2019 email regarding FRRC, # 26 Exhibit 116- FRRC Amend. 4 FAQs) (PRICE, TARA) (Entered: 04/17/2020)

04/17/2020

348 NOTICE of Plaintiffs' Exhibits by CURTIS D BRAYNT, FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, LEE HOFFMAN, KEITH IVEY, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, ROSEMARY MCCOY, JERMAINE MILLER, EMORY MARQUIS MITCHELL, LATOYA A MORELAND, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BONNIE RAYSOR, BETTY RIDDLE, DIANE SHERRILL, SHEILA SINGLETON, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT (Attachments: # 1 Exhibit Exhibit A - Table of Plaintiffs' Trial Exhibits, # 2 Exhibit PX096A, # 3 Exhibit PX096B, # 4 Exhibit PX096C, # 5 Exhibit PX096D, # 6 Exhibit PX096E, # 7 Exhibit PX096F, # 8 Exhibit PX102, # 9 Exhibit PX112, # 10 Exhibit PX137, # 11 Exhibit PX140, # 12 Exhibit PX150, # 13 Exhibit PX151, # 14 Exhibit PX155, # 15 Exhibit PX156, # 16 Exhibit PX157, # 17 Exhibit PX160, # 18 Exhibit PX164, # 19 Exhibit PX166, # 20 Exhibit PX167, # 21 Exhibit PX282, # 22 Exhibit PX283, # 23 Exhibit PX285, # 24 Exhibit PX286, # 25 Exhibit PX288, # 26 Exhibit PX290) (MORALES-DOYLE, SEAN) (Entered: 04/17/2020)

04/17/2020

349 NOTICE of Plaintiffs' Exhibits (2) by CURTIS D BRAYNT, FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, LEE HOFFMAN, KEITH IVEY, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, ROSEMARY MCCOY, JERMAINE MILLER, EMORY MARQUIS MITCHELL, LATOYA A MORELAND, STEVEN PHALEN, BONNIE RAYSOR, BETTY RIDDLE, DIANE SHERRILL, SHEILA SINGLETON, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT (Attachments: # 1 Exhibit PX292, # 2 Exhibit PX296, # 3 Exhibit PX297, # 4 Exhibit PX298, # 5 Exhibit PX299, # 6 Exhibit PX300, # 7 Exhibit PX301, # 8 Exhibit PX303, # 9 Exhibit PX305, # 10 Exhibit PX306, # 11 Exhibit PX307, # 12 Exhibit PX309, # 13 Exhibit PX311, # 14 Exhibit PX313, # 15 Exhibit PX315, # 16 Exhibit PX316, # 17 Exhibit PX329, # 18 Exhibit PX330, # 19 Exhibit PX332, # 20 Exhibit PX333) (SWEREN-BECKER, ELIZA) (Entered: 04/17/2020)

04/17/2020

350 Exhibit List by RON DESANTIS, LAUREL M LEE.. (Attachments: # 1 Exhibit 117- Rep. Renner talking points, # 2 Exhibit 118- House Jan. 21, 2020 regarding N. Volz, # 3 Exhibit 119- Amend. 4- "The Basics", # 4 Exhibit 120- ACLU email to Rep. Diamond regarding 7086 amendment, # 5 Exhibit 121- ACLU proposed amendment, # 6 Exhibit 122- ACLU email to Rep. Diamond regarding questions for 7089, # 7 Exhibit 123- ACLU proposed questions on 7089, # 8 Exhibit 124ACLU topline summary of House bill, # 9 Exhibit 125- ACLU email to Rep. Diamond proposed questions on 7089, # 10 Exhibit 126- ACLU proposed questions and amendments, # 11 Exhibit 127- House July 26, 2019 email on State Attorney Rundle's planning, # 12 Exhibit 128-

Restoration of Voting Rights for Certain Felons, # 13 Exhibit 129- Miami State Attorney's Office Oct. 14, 2019 email, # 14 Exhibit 130- Amend. 4 Implementation in Miami, # 15 Exhibit 131- NAACP Florida declaration, # 16 Exhibit 132- D. Meade deposition transcript, # 17 Exhibit 133NAACP Orange County declaration) (PRICE, TARA) (Entered: 04/17/2020)

04/17/2020

351 NOTICE Plaintiffs' Exhibits (3) by CURTIS D BRAYNT, FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, LEE HOFFMAN, KEITH IVEY, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, ROSEMARY MCCOY, JERMAINE MILLER, EMORY MARQUIS MITCHELL, LATOYA A MORELAND, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BONNIE RAYSOR, BETTY RIDDLE, DIANE SHERRILL, SHEILA SINGLETON, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT (Attachments: # 1 Exhibit PX339, # 2 Exhibit PX340, # 3 Exhibit PX345, # 4 Exhibit PX346, # 5 Exhibit PX350, # 6 Exhibit PX352, # 7 Exhibit PX358, # 8 Exhibit PX360, # 9 Exhibit PX362, # 10 Exhibit PX363, # 11 Exhibit PX364, # 12 Exhibit PX364, # 13 Exhibit PX367, # 14 Exhibit PX378, # 15 Exhibit PX379, # 16 Exhibit PX381, # 17 Exhibit PX382, # 18 Exhibit PX383, # 19 Exhibit PX387, # 20 Exhibit PX389, # 21 Exhibit PX390, # 22 Exhibit PX392, # 23 Exhibit PX393, # 24 Exhibit PX395, # 25 Exhibit PX396, # 26 Exhibit PX398, # 27 Exhibit PX399, # 28 Exhibit PX400, # 29 Exhibit PX401, # 30 Exhibit PX402, # 31 Exhibit PX403, # 32 Exhibit PX404, # 33 Exhibit PX407, # 34 Exhibit PX408, # 35 Exhibit PX409, # 36 Exhibit PX411, # 37 Exhibit PX412) (MORALES-DOYLE, SEAN) (Entered: 04/17/2020)

04/17/2020

352 Exhibit List by RON DESANTIS, LAUREL M LEE.. (Attachments: # 1 Exhibit 134- NAACP Orange County Notice of Taking Deposition, # 2 Exhibit 135- S. Singleton Declaration, # 3 Exhibit 136- S. Singleton Judgment & Restitution Order, # 4 Exhibit 137- S. Singleton Judgment, # 5 Exhibit 138- Clerk of Courts printout- S. Singleton, # 6 Exhibit 139- S. Singleton Arrest & Booking Report, # 7 Exhibit 140- R. McCoy Declaration, # 8 Exhibit 141- Transcript of June 29, 2015 proceedings, # 9 Exhibit 142- Draft MOU between FCOR and DOS, # 10 Exhibit 143Draft MOU between FCOR and DOS, # 11 Exhibit 144- Draft additions to felon DOS procedures, # 12 Exhibit 145- Adkins rebuttal report, # 13 Exhibit 146- Barber rebuttal report, # 14 Exhibit 147- M. McKown declaration, # 15 Exhibit 147-1 Kousser individual contributions, # 16 Exhibit 148- Weinstein deposition transcript, # 17 Exhibit 149Walker deposition transcript, # 18 Exhibit 150- Walker depo. ex. 2- The Gender Divide) (PRICE, TARA) (Entered: 04/17/2020)

04/17/2020 353 NOTICE of Plaintiffs' Exhibits (4) by CURTIS D BRAYNT, FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, LEE

HOFFMAN, KEITH IVEY, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, ROSEMARY MCCOY, JERMAINE MILLER, EMORY MARQUIS MITCHELL, LATOYA A MORELAND, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BONNIE RAYSOR, BETTY RIDDLE, DIANE SHERRILL, SHEILA SINGLETON, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT (Attachments: # 1 Exhibit PX416, # 2 Exhibit PX417, # 3 Exhibit PX418, # 4 Exhibit PX419, # 5 Exhibit PX421, # 6 Exhibit PX426, # 7 Exhibit PX430, # 8 Exhibit PX432, # 9 Exhibit PX434, # 10 Exhibit PX435, # 11 Exhibit PX436, # 12 Exhibit PX437, # 13 Exhibit PX438, # 14 Exhibit PX439, # 15 Exhibit PX440, # 16 Exhibit PX442, # 17 Exhibit PX443, # 18 Exhibit PX445, # 19 Exhibit PX446, # 20 Exhibit PX447, # 21 Exhibit PX449, # 22 Exhibit PX450, # 23 Exhibit PX456, # 24 Exhibit PX457, # 25 Exhibit PX460, # 26 Exhibit PX461, # 27 Exhibit PX462, # 28 Exhibit PX474, # 29 Exhibit PX475, # 30 Exhibit PX477, # 31 Exhibit PX478, # 32 Exhibit PX479, # 33 Exhibit PX480, # 34 Exhibit PX483, # 35 Exhibit PX484, # 36 Exhibit PX485, # 37 Exhibit PX486, # 38 Exhibit PX488, # 39 Exhibit PX499, # 40 Exhibit PX500, # 41 Exhibit PX501, # 42 Exhibit PX504, # 43 Exhibit PX505, # 44 Exhibit PX507, # 45 Exhibit PX508) (SWEREN-BECKER, ELIZA) (Entered: 04/17/2020)

04/17/2020

354 NOTICE of Plaintffs' Exhibits (5) by CURTIS D BRAYNT, FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, LEE HOFFMAN, KEITH IVEY, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, ROSEMARY MCCOY, JERMAINE MILLER, EMORY MARQUIS MITCHELL, LATOYA A MORELAND, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BONNIE RAYSOR, BETTY RIDDLE, DIANE SHERRILL, SHEILA SINGLETON, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT (Attachments: # 1 Exhibit PX509, # 2 Exhibit PX510, # 3 Exhibit PX513, # 4 Exhibit PX515, # 5 Exhibit PX522, # 6 Exhibit PX530, # 7 Exhibit PX531, # 8 Exhibit PX532, # 9 Exhibit PX533, # 10 Exhibit PX534, # 11 Exhibit PX535, # 12 Exhibit PX536, # 13 Exhibit PX537, # 14 Exhibit PX538, # 15 Exhibit PX539, # 16 Exhibit PX541, # 17 Exhibit PX542, # 18 Exhibit PX543, # 19 Exhibit PX545, # 20 Exhibit PX546, # 21 Exhibit PX547, # 22 Exhibit PX548, # 23 Exhibit PX549, # 24 Exhibit PX550, # 25 Exhibit PX552, # 26 Exhibit PX553, # 27 Exhibit PX554, # 28 Exhibit PX556, # 29 Exhibit PX557, # 30 Exhibit PX558, # 31 Exhibit PX559, # 32 Exhibit PX560) (GILLER, DAVID) (Entered: 04/17/2020)

04/17/2020 355 NOTICE Plaintiffs' Exhibits (6) by CURTIS D BRAYNT, FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, LEE

HOFFMAN, KEITH IVEY, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, ROSEMARY MCCOY, JERMAINE MILLER, EMORY MARQUIS MITCHELL, LATOYA A MORELAND, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BONNIE RAYSOR, BETTY RIDDLE, DIANE SHERRILL, SHEILA SINGLETON, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT (Attachments: # 1 Exhibit PX561, # 2 Exhibit PX566, # 3 Exhibit PX569, # 4 Exhibit PX571, # 5 Exhibit PX574, # 6 Exhibit PX575, # 7 Exhibit PX578, # 8 Exhibit PX580, # 9 Exhibit PX584, # 10 Exhibit PX586, # 11 Exhibit PX592, # 12 Exhibit PX593, # 13 Exhibit PX596, # 14 Exhibit PX606, # 15 Exhibit PX607, # 16 Exhibit PX612) (MORALES-DOYLE, SEAN) (Entered: 04/17/2020)

04/17/2020

356 NOTICE of Plaintiffs' Exhibits (7) by CURTIS D BRAYNT, FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, LEE HOFFMAN, KEITH IVEY, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, ROSEMARY MCCOY, JERMAINE MILLER, EMORY MARQUIS MITCHELL, LATOYA A MORELAND, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BONNIE RAYSOR, BETTY RIDDLE, DIANE SHERRILL, SHEILA SINGLETON, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT (Attachments: # 1 Exhibit PX615, # 2 Exhibit PX621, # 3 Exhibit PX622, # 4 Exhibit PX629, # 5 Exhibit PX630, # 6 Exhibit PX631, # 7 Exhibit PX634, # 8 Exhibit PX635, # 9 Exhibit PX636, # 10 Exhibit PX638, # 11 Exhibit PX639, # 12 Exhibit PX640, # 13 Exhibit PX641, # 14 Exhibit PX642, # 15 Exhibit PX643, # 16 Exhibit PX644, # 17 Exhibit PX645, # 18 Exhibit PX646, # 19 Exhibit PX647, # 20 Exhibit PX648, # 21 Exhibit PX652, # 22 Exhibit PX654, # 23 Exhibit PX655, # 24 Exhibit PX656, # 25 Exhibit PX658, # 26 Exhibit PX660, # 27 Exhibit PX661, # 28 Exhibit PX662, # 29 Exhibit PX663, # 30 Exhibit PX665, # 31 Exhibit PX666, # 32 Exhibit PX667, # 33 Exhibit PX668, # 34 Exhibit PX669, # 35 Exhibit PX670, # 36 Exhibit PX671, # 37 Exhibit PX672, # 38 Exhibit PX675, # 39 Exhibit PX676, # 40 Exhibit PX677, # 41 Exhibit PX679, # 42 Exhibit PX680, # 43 Exhibit PX684, # 44 Exhibit PX685, # 45 Exhibit PX686, # 46 Exhibit PX688, # 47 Exhibit PX689, # 48 Exhibit PX690, # 49 Exhibit PX692, # 50 Exhibit PX694) (SWEREN-BECKER, ELIZA) (Entered: 04/17/2020)

04/17/2020

357 NOTICE of Plaintiffs' Exhibits (8) by CURTIS D BRAYNT, FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, LEE HOFFMAN, KEITH IVEY, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, ROSEMARY MCCOY, JERMAINE MILLER, EMORY MARQUIS MITCHELL, LATOYA A MORELAND, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN,

BONNIE RAYSOR, BETTY RIDDLE, DIANE SHERRILL, SHEILA SINGLETON, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT (Attachments: # 1 Exhibit PX696, # 2 Exhibit PX697, # 3 Exhibit PX698, # 4 Exhibit PX699, # 5 Exhibit PX700, # 6 Exhibit PX701, # 7 Exhibit PX702, # 8 Exhibit PX703, # 9 Exhibit PX704, # 10 Exhibit PX706, # 11 Exhibit PX707, # 12 Exhibit PX712, # 13 Exhibit PX714, # 14 Exhibit PX715, # 15 Exhibit PX719, # 16 Exhibit PX721, # 17 Exhibit PX722, # 18 Exhibit PX724, # 19 Exhibit PX725, # 20 Exhibit PX727, # 21 Exhibit PX728, # 22 Exhibit PX729, # 23 Exhibit PX730, # 24 Exhibit PX731, # 25 Exhibit PX732, # 26 Exhibit PX733, # 27 Exhibit 735, # 28 Exhibit PX736A, # 29 Exhibit PX736B, # 30 Exhibit PX736C, # 31 Exhibit PX736D, # 32 Exhibit PX736E, # 33 Exhibit PX736F, # 34 Exhibit PX737, # 35 Exhibit PX73, # 36 Exhibit PX740, # 37 Exhibit PX741) (GILLER, DAVID) (Entered: 04/18/2020)

04/17/2020

358 NOTICE of Plaintiffs' Exhibits (9) by CURTIS D BRAYNT, FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, LEE HOFFMAN, KEITH IVEY, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, ROSEMARY MCCOY, JERMAINE MILLER, EMORY MARQUIS MITCHELL, LATOYA A MORELAND, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BONNIE RAYSOR, BETTY RIDDLE, DIANE SHERRILL, SHEILA SINGLETON, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT (Attachments: # 1 Exhibit PX745, # 2 Exhibit PX746, # 3 Exhibit PX747, # 4 Exhibit PX748, # 5 Exhibit PX749, # 6 Exhibit PX750, # 7 Exhibit PX751, # 8 Exhibit PX753, # 9 Exhibit PX754, # 10 Exhibit PX755, # 11 Exhibit PX756, # 12 Exhibit PX757, # 13 Exhibit PX758, # 14 Exhibit PX759, # 15 Exhibit PX760, # 16 Exhibit PX761, # 17 Exhibit PX762, # 18 Exhibit PX763, # 19 Exhibit PX764, # 20 Exhibit PX766, # 21 Exhibit PX767, # 22 Exhibit PX768, # 23 Exhibit PX769, # 24 Exhibit PX770) (MORALES-DOYLE, SEAN) (Entered: 04/18/2020)

04/17/2020

359 NOTICE of Plaintiffs' Exhibits (10) by CURTIS D BRAYNT, FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, LEE HOFFMAN, KEITH IVEY, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, ROSEMARY MCCOY, JERMAINE MILLER, EMORY MARQUIS MITCHELL, LATOYA A MORELAND, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BONNIE RAYSOR, BETTY RIDDLE, DIANE SHERRILL, SHEILA SINGLETON, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT (Attachments: # 1 Exhibit PX771, # 2 Exhibit PX772, # 3 Exhibit PX774, # 4 Exhibit PX775, # 5 Exhibit PX777, # 6 Exhibit PX778, # 7 Exhibit PX779, # 8 Exhibit PX780, # 9 Exhibit PX781A, # 10 Exhibit PX781B, # 11 Exhibit PX784, # 12 Exhibit PX785,

# 13 Exhibit PX786, # 14 Exhibit PX787, # 15 Exhibit PX788, # 16 Exhibit PX789, # 17 Exhibit PX790, # 18 Exhibit PX791, # 19 Exhibit PX792, # 20 Exhibit PX793, # 21 Exhibit PX794, # 22 Exhibit PX797, # 23 Exhibit PX798, # 24 Exhibit PX801, # 25 Exhibit PX802, # 26 Exhibit PX803, # 27 Exhibit PX804, # 28 Exhibit PX805, # 29 Exhibit PX807, # 30 Exhibit PX808, # 31 Exhibit PX813, # 32 Exhibit PX815, # 33 Exhibit PX817, # 34 Exhibit PX818A, # 35 Exhibit PX818B, # 36 Exhibit PX818C, # 37 Exhibit PX818D, # 38 Exhibit PX819, # 39 Exhibit PX820, # 40 Exhibit PX821, # 41 Exhibit PX822, # 42 Exhibit PX823, # 43 Exhibit PX824, # 44 Exhibit PX825, # 45 Exhibit PX826, # 46 Exhibit PX831, # 47 Exhibit PX834, # 48 Exhibit PX836, # 49 Exhibit PX838, # 50 Exhibit PX839A, # 51 Exhibit PX839B, # 52 Exhibit PX839C) (SWEREN-BECKER, ELIZA) (Entered: 04/18/2020)

04/17/2020

361 Exhibit List by RON DESANTIS, LAUREL M LEE.. (Attachments: # 1 Exhibit 151- Walker Depo. Ex. 3- The Gender Divide, Table 2, # 2 Exhibit 152- Walker Depo. Ex. 4- The Sentencing Project, # 3 Exhibit 153- Walker Depo. Ex. 5- Incarceration Trends in Florida, # 4 Exhibit 154Burch deposition transcript, # 5 Exhibit 155- Burch Depo. Ex. B- SB 7066, # 6 Exhibit 156- Kousser deposition transcript, # 7 Exhibit 157- Kousser depo. Ex. 1- Dec. 13, 2018 letter, # 8 Exhibit 158- Kousser depo. Ex. 2Jan. 21, 2019 ACLU letter, # 9 Exhibit 159- Kousser depo. Ex. 3- Jan. 6, 2019 email to Sen. Pizzo, # 10 Exhibit 160- Kousser depo. Ex. 4- March 11, 2019 letter, # 11 Exhibit 161- Kousser depo. Ex. 5- SJR 1264, # 12 Exhibit 162- Kousser depo. Ex. 6- SJR 1434, # 13 Exhibit 163Kousser depo. Ex. 7- SJR 1612, # 14 Exhibit 164- Kousser depo. Ex. 8SJR 244, # 15 Exhibit 165- Kousser depo. Ex. 9- HJR 263, # 16 Exhibit 166- Donovan deposition transcript) (PRICE, TARA) (Entered: 04/18/2020)

04/18/2020

360 NOTICE of Plaintiffs' Exhibits (11) by CURTIS D BRAYNT, FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, LEE HOFFMAN, KEITH IVEY, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, ROSEMARY MCCOY, JERMAINE MILLER, EMORY MARQUIS MITCHELL, LATOYA A MORELAND, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BONNIE RAYSOR, BETTY RIDDLE, DIANE SHERRILL, SHEILA SINGLETON, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT (Attachments: # 1 Exhibit PX840, # 2 Exhibit PX841, # 3 Exhibit PX842, # 4 Exhibit PX844, # 5 Exhibit PX845, # 6 Exhibit PX847, # 7 Exhibit PX849, # 8 Exhibit PX850, # 9 Exhibit PX851, # 10 Exhibit PX852, # 11 Exhibit PX853, # 12 Exhibit PX854, # 13 Exhibit PX855, # 14 Exhibit PX856, # 15 Exhibit PX857, # 16 Exhibit PX858, # 17 Exhibit PX859, # 18 Exhibit PX860,

# 19 Exhibit PX861, # 20 Exhibit PX862, # 21 Exhibit PX863, # 22 Exhibit PX864, # 23 Exhibit PX865, # 24 Exhibit PX866, # 25 Exhibit PX867, # 26 Exhibit PX868, # 27 Exhibit PX869, # 28 Exhibit PX870, # 29 Exhibit PX871, # 30 Exhibit PX872, # 31 Exhibit PX873, # 32 Exhibit PX874, # 33 Exhibit PX875, # 34 Exhibit PX876, # 35 Exhibit PX878, # 36 Exhibit PX879, # 37 Exhibit PX880, # 38 Exhibit PX881, # 39 Exhibit PX882, # 40 Exhibit PX883, # 41 Exhibit PX884, # 42 Exhibit PX885, # 43 Exhibit PX886, # 44 Exhibit PX887, # 45 Exhibit PX888, # 46 Exhibit PX888, # 47 Exhibit PX892, # 48 Exhibit PX894, # 49 Exhibit PX895) (GILLER, DAVID) (Entered: 04/18/2020)

04/18/2020

362 NOTICE of Plaintiffs' Exhibits (12) by CURTIS D BRAYNT, FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, LEE HOFFMAN, KEITH IVEY, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, ROSEMARY MCCOY, JERMAINE MILLER, EMORY MARQUIS MITCHELL, LATOYA A MORELAND, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BONNIE RAYSOR, BETTY RIDDLE, DIANE SHERRILL, SHEILA SINGLETON, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT (Attachments: # 1 Exhibit PX896, # 2 Exhibit PX898, # 3 Exhibit PX899A, # 4 Exhibit PX899B, # 5 Exhibit PX899C, # 6 Exhibit PX899D, # 7 Exhibit PX900A, # 8 Exhibit PX9005, # 9 Exhibit PX901, # 10 Exhibit PX902, # 11 Exhibit PX903, # 12 Exhibit PX904) (MORALES-DOYLE, SEAN) (Entered: 04/18/2020)

04/18/2020

363 NOTICE of Plaintiffs' Exhibits (13) by CURTIS D BRAYNT, FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, LEE HOFFMAN, KEITH IVEY, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, ROSEMARY MCCOY, JERMAINE MILLER, EMORY MARQUIS MITCHELL, LATOYA A MORELAND, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BONNIE RAYSOR, BETTY RIDDLE, DIANE SHERRILL, SHEILA SINGLETON, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT (Attachments: # 1 Exhibit PX905, # 2 Exhibit PX906A, # 3 Exhibit PX906B, # 4 Exhibit PX906C, # 5 Exhibit PX906D, # 6 Exhibit PX906E, # 7 Exhibit PX906F, # 8 Exhibit PX907, # 9 Exhibit PX908A, # 10 Exhibit PX908B, # 11 Exhibit PX908C, # 12 Exhibit PX908D, # 13 Exhibit PX908E, # 14 Exhibit PX908F, # 15 Exhibit PX909, # 16 Exhibit PX910, # 17 Exhibit PX911, # 18 Exhibit PX912, # 19 Exhibit PX913, # 20 Exhibit PX914, # 21 Exhibit PX915) (SWEREN-BECKER, ELIZA) (Additional attachment(s) added on 4/20/2020: # 22 Exhibit PX906G, # 23 Exhibit PX906H) (blb). (Entered: 04/18/2020)

04/18/2020 364 NOTICE of Plaintiffs' Exhibits (14) by CURTIS D BRAYNT, FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, LEE

HOFFMAN, KEITH IVEY, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, ROSEMARY MCCOY, JERMAINE MILLER, EMORY MARQUIS MITCHELL, LATOYA A MORELAND, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BONNIE RAYSOR, BETTY RIDDLE, DIANE SHERRILL, SHEILA SINGLETON, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT (Attachments: # 1 Exhibit PX906G, # 2 Exhibit PX906H) (SWEREN-BECKER, ELIZA) Exhibits added to 363 on 4/20/2020 (blb) for continuity. (Entered: 04/18/2020)

04/20/2020 365 NOTICE of Filing Exhibits to be Used with State Defendants' Witnesses by LAUREL M LEE (PRICE, TARA) (Entered: 04/20/2020)

04/20/2020

366 NOTICE of Filing Exhibits To Be Used with Plaintiffs' Witnesses by LEE HOFFMAN, BONNIE RAYSOR, DIANE SHERRILL (Attachments: # 1 Exhibit 1: Exhibits to be Used with Plaintiffs' Witnesses) (GABER, MARK) (Entered: 04/20/2020)

04/22/2020

367 Emergency MOTION to Amend/Correct 354 Notice (Other),,,, to replace 354-7 PX351 with redacted version by CURTIS D BRAYNT, FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, LEE HOFFMAN, KEITH IVEY, KELVIN LEON JONES, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, ROSEMARY MCCOY, LUIS A MENDEZ, JERMAINE MILLER, EMORY MARQUIS MITCHELL, LATOYA A MORELAND, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BONNIE RAYSOR, BETTY RIDDLE, DIANE SHERRILL, SHEILA SINGLETON, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT. (Attachments: # 1 Exhibit A - PX351 replacement) (ADEN, LEAH) (Entered: 04/22/2020)

04/22/2020

368 ORDER SEALING ECF NO. 354 -7The plaintiffs emergency motion to seal, ECF No. 367 , is granted. The clerk must maintain ECF No. 354 -7 under seal. Signed by JUDGE ROBERT L HINKLE on 4/22/20. (blb) (Entered: 04/22/2020)

04/22/2020

369 Emergency MOTION to Take Deposition from Maria Matthews by LEE HOFFMAN, BONNIE RAYSOR, DIANE SHERRILL. (Attachments: # 1 Brief in Support of Motion, # 2 Exhibit 1: 4.22.2020 McVay Email, # 3 Exhibit 2: 4.17.2020 Plaintiff Letter, # 4 Exhibit 3: 4.20.2020 McVay Letter) (GABER, MARK) (Entered: 04/22/2020)

04/22/2020

370 NOTICE of Filing of Exhibits to be Used for Cross-Examination by CURTIS D BRAYNT, FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, KEITH IVEY, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, JERMAINE MILLER, EMORY MARQUIS MITCHELL, LATOYA A MORELAND, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BETTY

RIDDLE, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT (Attachments: # 1 Exhibit 1 - Pls.' Cross Exhibits List) (EBENSTEIN, JULIE) (Entered: 04/22/2020)

04/22/2020 371 NOTICE of Filing Exhibits to be Used During Cross-Examination by LAUREL M LEE (PRICE, TARA) (Entered: 04/22/2020)

04/22/2020

372 MOTION to Amend/Correct 363 Notice (Other),,,, to replace PX908 by CURTIS D BRAYNT, FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, LEE HOFFMAN, KEITH IVEY, KELVIN LEON JONES, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, ROSEMARY MCCOY, LUIS A MENDEZ, JERMAINE MILLER, EMORY MARQUIS MITCHELL, LATOYA A MORELAND, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BONNIE RAYSOR, BETTY RIDDLE, DIANE SHERRILL, SHEILA SINGLETON, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT. (Attachments: # 1 Exhibit PX908A, # 2 Exhibit PX908B, # 3 Exhibit PX908C, # 4 Exhibit PX908D, # 5 Exhibit PX908E, # 6 Exhibit PX908F, # 7 Exhibit PX908G, # 8 Exhibit PX908H, # 9 Exhibit PX908I) (ADEN, LEAH) (Entered: 04/22/2020)

04/23/2020 373 ORDER ALLOWING AN ADDITIONAL DEPOSITION OF MS. MATTHEWS RE 369 Motion to Take Deposition. Signed by JUDGE ROBERT L HINKLE on 4/23/20. (sms) (Entered: 04/23/2020)

04/23/2020 374 Sealed Document (ckm) (Entered: 04/23/2020)

04/23/2020 375 NOTICE OF TELEPHONIC HEARING: Bench Trial set for 4/27/2020 09:00 AM before JUDGE ROBERT L HINKLE.
Call in number: 571-353-2300 Access code: 034872985#
All callers should mute their phones.
s/ Cindy Markley Courtroom Deputy Clerk (ckm) Modified on 4/28/2020 (ckm). (Entered: 04/23/2020)
04/23/2020 376 NOTICE State Defendants' Notice of Preservation of Objections to Plaintiffs' Exhibit List Dated April 17 and Other Matters in Advance of Trial by LAUREL M LEE (PRICE, TARA) (Entered: 04/23/2020)
04/24/2020 377 MOTION for Clarification by CURTIS D BRAYNT, FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, LEE HOFFMAN, KEITH IVEY, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN

LEICHT, ROSEMARY MCCOY, JERMAINE MILLER, EMORY MARQUIS MITCHELL, LATOYA A MORELAND, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BONNIE RAYSOR, BETTY RIDDLE, DIANE SHERRILL, SHEILA SINGLETON, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT. (SWEREN-BECKER, ELIZA) (Entered: 04/24/2020)

04/25/2020 378 ORDER ON VIDEO ATTENDANCE AT THE TRIAL RE 377 Motion. Signed by JUDGE ROBERT L HINKLE on 4/25/20. (sms) (Entered: 04/25/2020)

04/25/2020

379 NOTICE of Supplemental Exhibits To Be Used with Trial Witnesses by LEE HOFFMAN, BONNIE RAYSOR, DIANE SHERRILL (Attachments: # 1 Exhibit PX916: Defendant's Supplemental Responses to Gruver Plaintiffs' First Set of Interrogatories, # 2 Exhibit PX917: Florida Dep't of State Voter Assistance Hotline Manual, dated Mar. 15, 2020) (GABER, MARK) (Entered: 04/25/2020)

04/26/2020

380 RESPONSE by CURTIS D BRAYNT, FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, LEE HOFFMAN, KEITH IVEY, KELVIN LEON JONES, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, ROSEMARY MCCOY, LUIS A MENDEZ, JERMAINE MILLER, EMORY MARQUIS MITCHELL, LATOYA A MORELAND, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BONNIE RAYSOR, BETTY RIDDLE, DIANE SHERRILL, SHEILA SINGLETON, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT re 376 Notice (Other) (Plaintiffs' Response to State Defendants' Notice of Preservation of Objections to Plaintiffs' Exhibit List Dated April 17 and Other Matters in Advance of Trial). (Attachments: # 1 Exhibit A-3/23/20 Email, # 2 Exhibit B-4/24/20 Email) (GILLER, DAVID) (Entered: 04/26/2020)

04/26/2020

381 NOTICE of Filing Supplemental Exhibit To Be Used with Trial Witnesses by LEE HOFFMAN, BONNIE RAYSOR, DIANE SHERRILL (Attachments: # 1 Exhibit PX918: 4.26.2020 Maria Matthews Deposition Transcript) (GABER, MARK) (Entered: 04/26/2020)

04/27/2020

382 AFFIDAVIT of Service for Subpoena to Appear and Testify at a Hearing or Trial in a Civil Action served on Ashley Davis, Deputy General Counsel on 04/27/2020, filed by LEE HOFFMAN, BONNIE RAYSOR, DIANE SHERRILL. (DUNN, CHAD) Sealed per Chambers on 4/27/2020 (blb). (Entered: 04/27/2020)

04/27/2020 383 AFFIDAVIT of Service for Subpoena to Appear and Testify at a Hearing or Trial in a Civil Action served on Toshia Brown, Chief, Bureau of Voter Registration Services on 04/27/2020, filed by LEE HOFFMAN, BONNIE

RAYSOR, DIANE SHERRILL. (DUNN, CHAD) Sealed per Chambers on 4/27/2020 (blb). (Entered: 04/27/2020)

04/27/2020

384 NOTICE of Filing of Supplemental Exhibits To Be Used with Trial Witnesses by LEE HOFFMAN, BONNIE RAYSOR, DIANE SHERRILL (Attachments: # 1 Exhibit PX919: Notice of Proposed Rule: Statewide Voter Registration Application (Dated 4/27/2020), # 2 Exhibit PX920: Dep't of State's Advisory Opinion Regulations, # 3 Exhibit PX921: Fla. Stat. s. 106.23, # 4 Exhibit PX922: Dep't of State's Advisory Opinion Webpage) (GABER, MARK) (Entered: 04/27/2020)

04/27/2020

385 AFFIDAVIT of Service for Subpoena to Appear and Testify at a Hearing or Trial in a Civil Action served on Ashley Davis, Deputy General Counsel on 04/27/2020, filed by LEE HOFFMAN, BONNIE RAYSOR, DIANE SHERRILL. (DUNN, CHAD) (Entered: 04/27/2020)

04/27/2020

386 AFFIDAVIT of Service for Subpoena to Appear and Testify at a Hearing or Trial in a Civil Action served on Toshia Brown, Chief, Bureau of Voter Registration Services on 04/27/2020, filed by LEE HOFFMAN, BONNIE RAYSOR, DIANE SHERRILL. (DUNN, CHAD) (Entered: 04/27/2020)

04/27/2020 387 Minute Entry for proceedings held before JUDGE ROBERT L HINKLE: Video Bench Trial (Day 1) held on 4/27/2020. (Court Reporter Megan Hague) (ckm) (Entered: 04/28/2020)

04/27/2020

388 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Day 1 of Videoconference Bench Trial Proceedings held on 4/27/2020 before Judge Robert L. Hinkle. Court Reporter/Transcriber Megan Hague, Telephone number 850-422-0011.

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

Redaction Request due 5/4/2020. Release of Transcript Restriction set for 8/3/2020. (ckm) (Main Document 388 replaced on 4/30/2020) (kjw). (Entered: 04/28/2020)

04/28/2020

389 NOTICE OF FILING HIGHLIGHTED DEPOSITION DESIGNATIONS by LEE HOFFMAN, BONNIE RAYSOR, DIANE SHERRILL (Attachments: # 1 Exhibit A - Arrington Deposition Designations (Highlighted), # 2 Exhibit B - Barton Deposition Designations (Highlighted), # 3 Exhibit C - Earley Deposition Designations (Highlighted), # 4 Exhibit D - Latimer Deposition Designations (Highlighted), # 5 Exhibit E - Brown Deposition Designations (Highlighted), # 6 Exhibit F - Hogan Deposition Designations (Highlighted), # 7 Exhibit G - Matthews 1st Deposition Designations (Highlighted), # 8 Exhibit H - Neal Deposition Designations (Highlighted), # 9 Exhibit I - Matthews 2d Deposition Designations

(Highlighted), # 10 Exhibit J - Table of Matthews 3d Deposition Designations, # 11 Exhibit K - Matthews 3d Deposition Designations (Highlighted)) (DIAZ, JONATHAN) (Entered: 04/28/2020)

04/28/2020 390 Minute Entry for proceedings held before JUDGE ROBERT L HINKLE: Video Bench Trial (Day 2) held on 4/28/2020. (Court Reporter Megan Hague) (ckm) (Entered: 04/28/2020)

04/28/2020

391 NOTICE OF FILING HIGHLIGHTED DEPOSITION DESIGNATIONS by LEE HOFFMAN, BONNIE RAYSOR, DIANE SHERRILL (Attachments: # 1 Exhibit M - Timmann Deposition Designations (Highlighted)) (DIAZ, JONATHAN) (Entered: 04/28/2020)

04/29/2020 392 Minute Entry for proceedings held before JUDGE ROBERT L HINKLE: Video Bench Trial (Day 3) held on 4/29/2020. (Court Reporter Megan Hague) (ckm) (Entered: 04/29/2020)

04/29/2020

393 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Videoconerence Bench Trial Proceedings - Day 3 held on 4/29/2020, before Judge Robert L. Hinkle. Court Reporter/Transcriber Megan A. Hague, Telephone number 850-422-0011.

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

Redaction Request due 5/6/2020. Release of Transcript Restriction set for 8/4/2020. (mah) (Entered: 04/29/2020)
04/30/2020 395 NOTICE State Defendants' Notice of Filing Additional Video Designations by LAUREL M LEE (PRICE, TARA) (Entered: 04/30/2020)
04/30/2020 396 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Videoconference Bench Trial Proceedings - Day 2 held on 4/28/2020 before Judge Robert L. Hinkle. Court Reporter: Megan Hague. Telephone number: 850-422-0011.

Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

Redaction Request due 5/7/2020. Release of Transcript Restriction set for 8/5/2020. (kjw) (Entered: 04/30/2020)

04/30/2020

397 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Videoconference Bench Trial Proceedings - Day 4 held on 4/30/2020, before Judge Robert L. Hinkle. Court Reporter/Transcriber Megan A. Hague, Telephone number 850-422-0011.

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

Redaction Request due 5/7/2020. Release of Transcript Restriction set for 8/5/2020. (mah) (Entered: 04/30/2020)

04/30/2020

398 NOTICE of Filing of Demonstrative Exhibits by CURTIS D BRAYNT, FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, KEITH IVEY, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, JERMAINE MILLER, EMORY MARQUIS MITCHELL, LATOYA A MORELAND, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BETTY RIDDLE, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT (Attachments: # 1 Exhibit A - Burch Demonstratives, # 2 Exhibit B - Kousser Demonstratives) (ADEN, LEAH) (Entered: 04/30/2020)

04/30/2020 399 Minute Entry for proceedings held before JUDGE ROBERT L HINKLE: Video Bench Trial (Day 4) held on 4/30/2020. (Court Reporter Megan Hague) (ckm) (Entered: 05/01/2020)

05/01/2020

400 MOTION for Joinder by LEE HOFFMAN, BONNIE RAYSOR, DIANE SHERRILL. (Attachments: # 1 Brief in Support of Motion to Join Consolidated Case Defendant Craig Latimer as Defendant in Member Case No. 4:19-cv-301) (GABER, MARK) (Entered: 05/01/2020)

05/01/2020 401 Minute Entry for proceedings held before JUDGE ROBERT L HINKLE: Video Bench Trial (Day 5) held on 5/1/2020. (Court Reporter Megan Hague) (ckm) (Entered: 05/01/2020)

05/01/2020

402 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Videoconference Bench trial - Day 5 Proceedings held on 5/1/2020, before Judge Robert L. Hinkle. Court Reporter/Transcriber Megan A. Hague, Telephone number 850-422-0011.

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

Redaction Request due 5/8/2020. Release of Transcript Restriction set for 8/6/2020. (mah) (Entered: 05/01/2020)

05/01/2020

403 NOTICE (Raysor Plaintiffs' Notice of Service Regarding Joinder Motion) by LEE HOFFMAN, BONNIE RAYSOR, DIANE SHERRILL (Attachments: # 1 Exhibit 1: 4.30.2020-5.1.2020 Email Correspondence Regarding Joinder Motion) (GABER, MARK) (Entered: 05/01/2020)

05/02/2020

404 NOTICE (Raysor Plaintiffs' Notice of Agreement with Consolidated Case Defendant Hillsborough County Supervisor of Elections Craig Latimer Regarding Joinder Motion) by LEE HOFFMAN, BONNIE RAYSOR, DIANE SHERRILL re 400 MOTION for Joinder (GABER, MARK) (Entered: 05/02/2020)

05/04/2020

405 NOTICE of Filing Objections and Counter-Designations to M. Matthews' Third Deposition by LAUREL M LEE (Attachments: # 1 Exhibit AObjections and Counter-Designations, # 2 Exhibit B- Highlighted Designations and Counter-Designations) (PRICE, TARA) (Entered: 05/04/2020)

05/04/2020 407 Minute Entry for proceedings held before JUDGE ROBERT L HINKLE: Video Bench Trial (Day 6) held on 5/4/2020. (Court Reporter Megan Hague) (ckm) (Entered: 05/04/2020)

05/04/2020

408 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Videoconfrence Bench Trial - Day 6 Proceedings held on 5/4/2020, before Judge Robert L. Hinkle. Court Reporter/Transcriber Megan A. Hague, Telephone number 850-422-0011.

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

Redaction Request due 5/11/2020. Release of Transcript Restriction set for 8/10/2020. (mah) (Entered: 05/04/2020)

05/05/2020

409 NOTICE of Filing Demonstrative Exhibit by LEE HOFFMAN, BONNIE RAYSOR, DIANE SHERRILL (Attachments: # 1 Exhibit 1: Matthews Testimony Demonstrative Exhibit) (GABER, MARK) (Entered: 05/05/2020)

05/05/2020 410 Minute Entry for proceedings held before JUDGE ROBERT L HINKLE: Video Bench Trial (Day 7) held on 5/5/2020. (Court Reporter Megan Hague) (ckm) (Entered: 05/05/2020)

05/05/2020

411 NOTICE OF JOINT STIPULATION AND FILING OF EXHIBIT by LEE HOFFMAN, BONNIE RAYSOR, DIANE SHERRILL (Attachments: # 1 Exhibit PX923 - Declaration of Ashley Davis) (DIAZ, JONATHAN) (Entered: 05/05/2020)

05/05/2020 412 NOTICE of Citations to Legislative Videos by LAUREL M LEE (PRICE, TARA) (Entered: 05/05/2020)

05/05/2020 413 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Videoconfrence Bench Trial - Day 7 Proceedings held on 5/5/2020, before Judge Robert L.

Hinkle. Court Reporter/Transcriber Megan A. Hague, Telephone number 850-422-0011.

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

Redaction Request due 5/12/2020. Release of Transcript Restriction set for 8/10/2020. (mah) (Entered: 05/05/2020)

05/05/2020 414 NOTICE of Filing Demonstrative Exhibit by ROSEMARY MCCOY, SHEILA SINGLETON (Attachments: # 1 Exhibit McCoy Closing Demonstrative Exhibit) (SHORT, CAREN) (Entered: 05/05/2020)

05/06/2020

415 NOTICE of Filing of Demonstrative Exhibits by CURTIS D BRAYNT, FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, KEITH IVEY, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, JERMAINE MILLER, EMORY MARQUIS MITCHELL, LATOYA A MORELAND, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT (Attachments: # 1 Exhibit A - Ebenstein Closing Argument Demonstratives) (ADEN, LEAH) (Entered: 05/06/2020)

05/06/2020

416 NOTICE of Filing Demonstrative Exhibits by LEE HOFFMAN, BONNIE RAYSOR, DIANE SHERRILL (Attachments: # 1 Exhibit A - Lang Closing Argument Demonstratives) (DIAZ, JONATHAN) (Entered: 05/06/2020)

05/06/2020

417 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Videoconference Bench Trial - Day 8 Proceedings held on 5/6/2020, before Judge Robert L. Hinkle. Court Reporter/Transcriber Megan A. Hague, Telephone number 850-422-0011.

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

Redaction Request due 5/13/2020. Release of Transcript Restriction set for 8/11/2020. (mah) (Entered: 05/06/2020)

05/06/2020

418 Minute Entry for proceedings held before JUDGE ROBERT L HINKLE: Video Bench Trial (Day 8) completed on 5/6/2020. The Court's ruling will be made in a separate order. (Court Reporter Megan Hague) (Attachments: # 1 Exhibit List) (ckm) (Entered: 05/06/2020)

05/07/2020 419 ORDER AMENDING THE COMPLAINT IN CASE NO. 4:19cv301. Signed by JUDGE ROBERT L HINKLE on 5/7/20. (sms) (Entered: 05/07/2020)

05/24/2020

420 OPINION ON THE MERITS. Signed by JUDGE ROBERT L HINKLE on 5/24/20. (Attachments: # 1 Request for an Advisory Opinion, # 2 Standards Governing Eligibility to Vote after a Felony Conviction) (RH) (Entered: 05/24/2020)

05/26/2020

421 CLERK'S JUDGMENT entered pursuant to 420 Opinion on the Merits (Attachments: # 1 Request for Advisory Opinion, # 2 Standards Governing Eligibility to Vote after a Felony Conviction) 90 Day Exhibit Return Deadline set for 8/24/2020 (ckm) (Entered: 05/26/2020)

05/29/2020 422 NOTICE OF APPEAL as to 421 Clerk's Judgment, 420 Order by LAUREL M LEE. ( Filing fee $505 Receipt Number AFLNDC-5281014.) (JAZIL, MOHAMMAD) (Entered: 05/29/2020)

05/29/2020 423 MOTION to Stay Pending Appeal and Incorporated Memorandum of Law by LAUREL M LEE. (JAZIL, MOHAMMAD) (Entered: 05/29/2020)

06/01/2020

424 Appeal Instructions re: 422 Notice of Appeal : The Transcript Request Form is available on the Internet at http://www.flnd.uscourts.gov/forms/Attorney/ECCA_transcript_form_filla ble.pdf **PLEASE NOTE** Separate forms must be filed for each court reporter. Transcript Order Form due by 6/15/2020. (blb) (Entered: 06/01/2020)

06/01/2020 425 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 422 Notice of Appeal. (blb) (Entered: 06/01/2020)

06/01/2020

Set Deadlines re 422 Notice of Appeal : Clerk to check status of Appeal on 9/1/2020. Certificate of Readiness (FRAP 11) due by 6/15/2020. (blb) (Entered: 06/01/2020)

06/01/2020 427 USCA PROCEDURAL LETTER re: 422 NOTICE OF APPEAL. USCA Appeal # 20-12003-B (blb) (Entered: 06/03/2020)

06/02/2020

426 NOTICE of Compliance with Final Order and Final Judgment by LAUREL M LEE (Attachments: # 1 Exhibit M. Matthews Correspondence with Supervisors of Elections) (JAZIL, MOHAMMAD) (Entered: 06/02/2020)

06/11/2020

428 ORDER of USCA as to 422 Notice of Appeal filed by LAUREL M LEE. "Defendants-Appellants' Motion to Expedite Appeal" is GRANTED as follows: The initial brief is due June 19, 2020, with the appendix due 7 days after the initial brief is filed. The response brief is due July 17, 2020. The reply brief is due July 29, 2020. This appeal is placed on the argument

calendar for the week of August 10, 2020 in Atlanta, Georgia. USCA #2012003-B (blb) (Entered: 06/11/2020)

06/11/2020 429 TRANSCRIPT REQUEST by LAUREL M LEE for proceedings held on 4/27/2020-5/6/2020 before Judge Hinkle, Court Reporter:Megan Hague (JAZIL, MOHAMMAD) (Entered: 06/11/2020)

06/12/2020 430 PLAINTIFFS' RESPONSE IN OPPOSITION TO STATE DEFENDANTS' MOTION FOR STAY PENDING APPEAL1) Modified to edit title on 6/15/2020 (rcb). (Entered: 06/12/2020)

06/14/2020 431 ORDER denying 423 Motion to Stay. Signed by JUDGE ROBERT L HINKLE on 6/14/20. (sms) (Entered: 06/14/2020)

06/16/2020

432 Pursuant to F.R.A.P. 11(c), the Clerk of the District Court for the Northern District of Florida certifies that the record is complete for purposes of this appeal re: 422 Notice of Appeal, Appeal #20-12003-B. The entire record on appeal is available electronically. (blb) (Entered: 06/16/2020)

06/19/2020

433 PLAINTIFFS McCOY AND SINGLETON'S NOTICE OF CROSSAPPEAL by ROSEMARY MCCOY. Filing fee $ 505, receipt number AFLNDC-5368699. Appeal Record due by 7/6/2020. (ABUDU, NANCY) Modified to edit title on 6/22/2020 (rcb). (Entered: 06/19/2020)

06/22/2020

434 Appeal Instructions re: 433 Notice of Cross Appeal : The Transcript Request Form is available on the Internet at http://www.flnd.uscourts.gov/forms/Attorney/ECCA_transcript_form_filla ble.pdf **PLEASE NOTE** Separate forms must be filed for each court reporter. Transcript Order Form due by 7/6/2020. (rcb) (Entered: 06/22/2020)

06/22/2020 435 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 433 Notice of Cross Appeal. (rcb) (Entered: 06/22/2020)

06/22/2020

Set Deadlines re 433 Notice of Cross Appeal : Clerk to check status of Appeal on 9/21/2020. Certificate of Readiness (FRAP 11) due by 7/6/2020. Transcript Order Form due by 7/6/2020. (rcb) (Entered: 06/22/2020)

06/24/2020 436 USCA PROCEDURAL LETTER re: 433 PLAINTIFFS McCOY AND SINGLETON'S NOTICE OF CROSS-APPEAL by ROSEMARY MCCOY. USCA Appeal # 20-12003-AA (blb) (Entered: 06/26/2020)

06/26/2020

437 TRANSCRIPT REQUEST (Cross-Appeal) by ROSEMARY MCCOY and SHEILA SINGLETON for proceedings held on April 27, 2020 - May 6, 2020 before Judge Hinkle.. (ABUDU, NANCY) *All Necessary Transcripts on File* (Entered: 06/26/2020)

06/29/2020 438 Pursuant to F.R.A.P. 11(c), the Clerk of the District Court for the Northern District of Florida certifies that the record is complete for purposes of this Cross-Appeal re: 433 Notice of Cross Appeal, Appeal No. 20-12003-AA.

The entire record on appeal is available electronically. (blb) (Entered: 06/29/2020)

07/29/2020

439 ORDER of USCA re : The motion of Plaintiffs-Appellees for clarification of the order granting a stay is GRANTED IN PART with respect to the claim under the National Voter Registration Act. Our order granting a stay of the permanent injunction pending appeal does not extend to the district court's ruling or injunctive relief regarding the noncompliant registration form under the Act. In all other respects, the stay remains in place. (blb) USCA #20-12003. (Entered: 07/31/2020)

09/04/2020

Appeal Deadlines Terminated re 422 Notice of Appeal filed by LAUREL M LEE : Clerk to check status of Appeal on 12/4/2020. USCA Appeal # 20-12003. (blb) (Entered: 09/04/2020)

09/11/2020 440 USCA EN BANC OPINION as to 422 Notice of Appeal filed by LAUREL M LEE, 433 Notice of Cross Appeal filed by ROSEMARY MCCOY. USCA # 20-12003-AA. (blb) (Entered: 09/22/2020)

09/23/2020

Appeal Status Deadline Reset re 422 Notice of Appeal filed by LAUREL M LEE and 433 Notice of Cross Appeal : Clerk to check status of Appeal on 12/23/2020. (blb) (Entered: 09/23/2020)

10/13/2020

441 MANDATE of USCA #20-12003-AA as to 422 Notice of Appeal filed by LAUREL M LEE, 433 Notice of Cross Appeal filed by ROSEMARY MCCOY ( 30 Day Exhibit Return Deadline After Appeal Mandate set for 11/12/2020.) (blb) (Entered: 10/19/2020)

10/26/2020

442 NOTICE of Appearance by NICHOLAS WARREN on behalf of CURTIS D BRAYNT, FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, KEITH IVEY, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, JERMAINE MILLER, EMORY MARQUIS MITCHELL, LATOYA A MORELAND, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BETTY RIDDLE, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT (WARREN, NICHOLAS) (Entered: 10/26/2020)

10/27/2020

443 Joint MOTION to Extend Time to File Attorney's Fees Motion and Bill of Costs by CURTIS D BRAYNT, FLORIDA STATE CONFERENCE OF THE NAACP, JEFF GRUVER, KEITH IVEY, LEAGUE OF WOMEN VOTERS OF FLORIDA, KAREN LEICHT, JERMAINE MILLER, EMORY MARQUIS MITCHELL, LATOYA A MORELAND, ORANGE COUNTY BRANCH OF THE NAACP, STEVEN PHALEN, BETTY RIDDLE, CLIFFORD TYSON, KRISTOPHER WRENCH, RAQUEL WRIGHT. (WARREN, NICHOLAS) (Entered: 10/27/2020)

10/28/2020 444 ORDER EXTENDING THE DEADLINE FOR FEE AND COST FILINGS. IT IS ORDERED: The prior determination that the plaintiffs are

entitled to recover attorney's fees and costs, ECF No. 420 at 124, is vacated. The joint motion to extend fee and cost deadlines, ECF No. 443 , is granted in part. Signed by JUDGE ROBERT L HINKLE on 10/28/20. (blb) (Entered: 10/30/2020)

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 </s> Case 4:19-cv-00300-MW-MJF Document 1 Filed 06/28/19 Page 1 of 9

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION

KELVIN LEON JONES Petitioner,
v.
RON DESANTIS, IN HIS OFFICIAL CAPACITY AS THE GOVERNOR OF FLORIDA, AN INDISPENSIBLE PARTY, CRAIG LATIMER, IN HIS OFFICIAL CAPACITY AS SUPERVISOR OF ELECTIONS OF HILLSBOROUGH COUNTY, FLORIDA AN INDISPENSIBLE PARTY, AND LAUREL M. LEE , IN HER OFFICIAL CAPACITY AS SECRETARY OF STATE, OF THE STATE OF FLORIDA, AN INDISPENSABLE PARTY, Respondents.

Case No. 4:19-cv-00300

COMPLAINT FOR INJUNCTIVE RELIEF, DECLARATORY RELIEF, AND MANDAMUS

Petitioner, by and through his undersigned counsel, hereby complains of the Respondents, and alleges as follows:
NATURE OF THE ACTION 1. This action is brought pursuant to 42 U.S.C. § 1983 to secure equitable relief from Respondents’ unlawful deprivation of Petitioner's rights, privileges and immunities guaranteed by the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, the Twenty-fourth Amendment to the United States Constitution, 52 U.S.C. § 10301 Section 2, and Article VI, Section 4 of the Florida Constitution; and

Case 4:19-cv-00300-MW-MJF Document 1 Filed 06/28/19 Page 2 of 9
pursuant to 28 U.S.C. § 1361 to seek a writ of mandamus. Jurisdiction is conferred pursuant to 28 U.S.C. § 1331 and § 1343. Declaratory relief can be sought pursuant to 28 U.S.C. § 2201 and § 2202.
2. “No right is more precious in a free country than that of having a voice in the election of those who make the laws…” Wesberry v. Sanders, 376 U.S. 1, 17 (1964). Petitioner brings the instant lawsuit to have the relevant portion of F.S. 98.0751, which requires payment of all costs, prior to restoration of voting rights to convicted felons, declared unconstitutional and unenforceable.
3. Once the franchise or right to vote is granted to the electorate, lines may not be drawn, which are inconsistent with the Equal Protection Clause of the United States Constitution. Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966)
4. A state violates the Equal Protection Clause of the United States Constitution whenever it makes affluence of the voter or payment of any fee, an electoral standard. Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966)
5. Article VI, Section 4 of the Florida Constitution, provides: " Disqualifications.— (a) No person convicted of a felony, or adjudicated in this or any other state to be mentally incompetent, shall be qualified to vote or hold office until restoration of civil rights or removal of disability. Except as provided in subsection (b) of this section, any disqualification from voting arising from a felony conviction shall terminate and voting rights shall be restored upon completion of all terms of sentence including parole or probation. (b) No person convicted of murder or a felony sexual offense

Case 4:19-cv-00300-MW-MJF Document 1 Filed 06/28/19 Page 3 of 9
shall be qualified to vote until restoration of civil rights.
6. The Florida Legislature enacted F.S. 98.0751, which purportedly clarified this
amendment, which included the following language:
"98.0751 Restoration of voting rights; termination of ineligibility subsequent to a felony conviction.— (1) A person who has been disqualified from voting based on a felony conviction for an offense other than murder or a felony sexual offense must have such disqualification terminated and his or her voting rights restored pursuant to s. 4, Art. VI of the State Constitution upon the completion of all terms of his or her sentence, including parole or probation. The voting disqualification does not terminate unless a person’s civil rights are restored pursuant to s. 8, Art. IV of the State Constitution if the disqualification arises from a felony conviction of murder or a felony sexual offense, or if the person has not completed all terms of sentence, as specified under subsection (2). (2) For purposes of this section, the term: (a) “Completion of all terms of sentence” means any portion of a sentence that is contained in the four corners of the sentencing document, including, but not limited to: 1. Release from any term of imprisonment ordered by the court as a part of the sentence; 2. Termination from any term of probation or community control ordered by the court as a part of the sentence; 3. Fulfillment of any term ordered by the court as a part of the sentence; 4. Termination from any term of any supervision, which is monitored by the Florida Commission on Offender Review, including, but not limited to, parole; and 5. Payment of all: a. Restitution ordered by the court as a part of the sentence, regardless of whether such restitution is converted to a civil lien; and b. Fees or fines ordered by the court as part of the sentence or that are ordered by the court as a condition of any form of supervision including, but not limited to, probation, community control, or parole. A financial obligation required under this sub-subparagraph is deemed to have been completed to the extent that the financial obligation has been converted to a civil lien. A term required to be completed in accordance with this

Case 4:19-cv-00300-MW-MJF Document 1 Filed 06/28/19 Page 4 of 9
paragraph shall be deemed completed if the court modifies the original sentencing order to no longer require completion of such term. 7. This requirement that payment of all restitution, fees or fines ordered by the court as part of the sentence, as a condition of voting rights restoration, is in violation of U.S. Constitution’s guarantee of Equal Protection, applied to states pursuant to the Fourteenth Amendment, and the Twenty-fourth Amendment to the United States Constitution. In addition it violates 52 U.S.C. § 10301(a) in that it discriminates on the basis of race, color, or membership in one of the language minority groups identified in Section 4(f)(2) of the Act. The requirement further is unconstitutional, invalid and ineffective under the Florida Constitution, because it prescribes qualifications for restoration of voting rights to persons convicted of felonies, in addition to those prescribed by the Florida Constitution.
8. The Petitioner asserts that while the statute, on its face, is race neutral, it has a disproportionate impact on blacks and a material and motivating factor in adopting the statute was to reduce and limit the number of black persons who would otherwise be eligible to have their voting rights restored. Based on the totality of circumstances, F.S. 98.0751 results in the political processes leading to nomination or election in the State or political subdivision, not being equally open to participation by members of a class of citizens protected by the Voting Rights Act, subsection (a), in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.

Case 4:19-cv-00300-MW-MJF Document 1 Filed 06/28/19 Page 5 of 9
9. The Petitioner posits that once the state grants the right to vote to persons convicted of felonies, who have completed their sentence, including probation and parole, the state may not condition that right on the person's ability to pay legal financial obligations.
PARTIES TO THE ACTION
10. Petitioner is a citizen of the County of Hillsborough, State of Florida.
11. Petitioner has been convicted of felonies in the past and has completed all of the terms of his sentences and probation, except payment of court costs and fines. In connection with his felony cases, the courts have imposed court costs, fines, and/or fees in the aggregate amount of approximately $52,596.00
12. The Petitioner is a 46 year old black man, who suffers from a disability and is unable to work. He resides with his girlfriend in a small house and he must live off the charity of others.
13. The Petitioner, who is disabled, does not have the financial resources to pay the court costs, fines, and/or fees assessed against him. Furthermore, he is unable to afford to pay an attorney to petition the courts to allow him to convert his court costs, fines, and/or fees to community service, and even if he did, he is unable to perform community service, without accommodations, due to his disability.

Case 4:19-cv-00300-MW-MJF Document 1 Filed 06/28/19 Page 6 of 9
14. After passage of the aforesaid Amendment to the Florida Constitution, but before enactment of the aforesaid statute, Petitioner registered to vote, genuinely believing he completed all of the terms of his sentence. 15. Respondents, Laurel M. Lee and Craig Latimore, as part of their official duties, are responsible for conducting Federal, State, County, special and local elections. Thus, they are sued in their official capacities. Ron DeSantis, as Governor, is the titular head of the State of Florida, and is sued in his official capacity, as such.
FIRST CAUSE OF ACTION (FOURTEENTH AMENDMENT, AND 42 USC 1983) Paragraphs 1-15 are incorporated by reference. 16. F.S. 98.0751 violates the Equal Protection Clause of the 14th Amendment to the United States Constitution, as the statute makes affluence of the voter or payment of money, an electoral standard.
The Fourteenth Amendment of the Constitution requires that courts closely scrutinize challenged election regulations, weighing “the character and magnitude of the asserted injury . . . against the precise interests put forward by the State as justifications for the burden imposed by its rule.” Burdick v. Takushi, 504 U.S. 428, 434 (1992).
Even when voters are only modestly burdened by State action, the State’s “precise interests” must be able to justify the regulation, which must in turn be both “reasonable” and “nondiscriminatory,” id.; see also U.S. Taxpayers Party of Florida v. Smith, 871 F. Supp. 426, 435 (N.D. Fla. 1993) (citing New Alliance Party v. Hand, 933 F.2d 1568 (11th Cir. 1991), as holding that “although the burden imposed on minor parties was not insurmountable, the interests put forth by

Case 4:19-cv-00300-MW-MJF Document 1 Filed 06/28/19 Page 7 of 9
the state were inadequate to justify the restriction imposed.”). When the burden is more severe, the regulation in question must be able to
survive strict scrutiny. Burdick, 504 U.S. at 434. When the law applies differently to preexisting classes of similarly situated citizens seeking to exercise their fundamental rights, the distinction is analyzed under strict scrutiny. See, e.g., Wexler v.Anderson, 452 F.3d 1226, 1231-32 (11th Cir. 2006) ;Dunn v. Blumstein, 405 U.S. 330, 336 (1972) (“[A] citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction.”) .
SECOND CAUSE OF ACTION (TWENTY-FOURTH AMENDMENT)
Paragraphs 1-15 are incorporated by reference 17. The Twenty-Fourth Amendment to the United States Constitution provides in part, that “The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay poll tax or other tax.” 18. Taxation of court costs constitutes a tax. A charge is a tax if its purpose is to generate revenue, it is proportionate to the related costs and services, and the payor does not have the ability to limit the use of the service. It is a tax because it generates revenue disproportionate to the services provided, and because it benefits the public and not the payor. Even though the statute allowing the imposition of the court fines and

Case 4:19-cv-00300-MW-MJF Document 1 Filed 06/28/19 Page 8 of 9
fees fails to use the word tax, it is a tax because the statute’s purpose to generate revenue is clear.
The Twenty-Fourth Amendment precludes the denial of the right to vote by reason of failure to pay court costs taxed against a person in connection with a criminal court case.
THIRD CAUSE OF ACTION (52 U.S.C. § 10301-VOTING RIGHTS ACT) Paragraphs 1-15 are incorporated by reference 19. F.S. 98.0751 violates 52 U.S.C. § 10301-Voting Rights Act, in that it has and will have a disproportionate and negative impact on black and Hispanic citizens, and was enacted intentionally to slow down and reduce the number of black and Hispanic exfelons from registering to vote.
FOURTH CAUSE OF ACTION (FLORIDA CONSTITUTION)
Paragraphs 1-15 are incorporated by reference
20. F.S. 98.0751 violates Article VI, Section 4 of the Florida Constitution because it prescribes qualifications for restoration of voting rights to persons convicted of felonies, in addition to those prescribed by the Florida Constitution. The Legislature may not add to the requirements for restoration of voting rights over and above what is set forth in the Florida Constitution.

Case 4:19-cv-00300-MW-MJF Document 1 Filed 06/28/19 Page 9 of 9
FIFTH CAUSE OF ACTION (MANDAMUS) Paragraphs 1-15 are incorporated by reference. 20. Petitioner seeks mandamus pursuant to 28 USC 1361 to require the Respondents to allow him to register to vote or precluding Respondents from revoking his voters registarion, if he is qualified, other than having outstanding legal financial obligations.
PRAYER FOR RELIEF
For good cause, Petitioner seeks injunctive relief, declaratory relief, and a writ of mandamus. 1. Petitioner seeks a declaratory judgment pursuant to 28 U.S.C. §§ 2201 and 2202 declaring that F.S 98.0751 violates the Equal Protection Clause under the Fourteenth Amendment of the U.S. Constitution, the Twenty-Fourth Amendment of the U.S. Constitution, 52 U.S.C. § 10301-Voting Rights Act, and Article VI, Section 4, of the Florida Constitution. 2. Petitioner seeks injunctive relief in the form of mandamus directing the Respondents to allow him to register to vote or precluding them from revoking his voters registration, if he qualifies, without consideration of outstanding legal financial obligations. DATED: June 15, 2019
s/Michael A Steinberg Michael A. Steinberg 4925 Independence Parkway, Suite 195 Tampa, Florida 33634 (813) 221-1300 Florida Bar No.:340065 mas@ssalawyers.com

 </s> Case 4:19-cv-00300-RH-MJF Document 84 Filed 07/16/19 Page 1 of 49
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION

KELVIN LEON JONES, et al.,

Plaintiffs,

v.

Civil Action No. 4:19-cv-00300-

MW-MJF [Lead Case]

RON DeSANTIS, in his official

capacity as Governor, et al.,

No. 4:19-cv-00301-MW-MJF

[Consolidated]

Defendants.

No. 4:19-cv-00302-MW-MJF

[Consolidated]

No. 4:19-cv-00304-MW-CAS [Consolidated]

No. 4:19-cv-00272-MW-CAS [Consolidated]

[Class Action]

FIRST AMENDED COMPLAINT In the matter of Raysor, et al. v. Lee, No. 4:19-cv-00301-MW-MJF, consolidated with the above-captioned matter as Jones, et al. v. DeSantis, et al., No. 4:19-cv-00300-MW-MJF, Plaintiff Bonnie Raysor, Plaintiff Diane Sherrill, and Plaintiff Lee Hoffman (“Plaintiffs”) bring this class

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action against Laurel M. Lee, in her official capacity as Secretary of State (“Defendant”), and allege the following:
INTRODUCTION 1. On November 6, 2018, almost two-thirds of Floridians voted for Amendment 4 to restore the right to vote to individuals with past felony convictions. Except for individuals convicted of murder or felony sexual offense, Amendment 4 re-enfranchised otherwise eligible Florida citizens automatically “upon completion of all terms of sentence including parole or probation.” Fla. Const. art. VI, § 4. 2. On June 28, 2019, Governor Ron DeSantis signed Senate Bill 7066 (“SB 7066”), which purports to “implement” Amendment 4, in part by seeking to define “all terms of sentence” to include the payment of any restitution, fines, and fees (“legal financial obligations” or “LFOs”) ordered by the court “as a part of the sentence or that are ordered by the court as a condition of any form of supervision.” S.B. 7066, 2019 Leg., Reg. Sess., § 25 (Fla. 2019) (emphasis added). 3. Amendment 4 went into effect on January 8, 2019. SB 7066 went into effect on July 1, 2019.
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4. The natural and foreseeable effect of this “implementing” law will be to drastically reduce the number of people with past convictions who regain the right to vote under Amendment 4; permanently disenfranchise many minor offenders; and dole out the right to vote on the basis of wealth.
5. On its face, SB 7066 discriminates on the basis of wealth. People with the financial means to satisfy their LFOs either during or at the conclusion of their sentence of incarceration or supervision will have their rights automatically restored. But, people whose socioeconomic status prevents them from satisfying their LFOs concurrent with the termination of their incarceration or supervision will be prohibited from voting until they are able to pay their outstanding balance.
6. As a result, whether otherwise eligible individuals will have the right to vote upon completion of their sentence of incarceration and supervision depends entirely on their ability to pay for it. Indeed, two otherwise eligible individuals with the same conviction, who received the same terms of probation and parole, and the same LFOs, would be treated differently under SB 7066 based solely on whether they have the means to satisfy their LFOs.
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7. In short, SB 7066’s wealth-based discrimination not only violates the Fourteenth Amendment, but also the Twenty-Fourth Amendment by functioning as a modern-day poll tax.
8. Further, SB 7066 is vague as to its scope. For example, it is internally contradictory with respect to whether fees or costs incurred after sentencing may nonetheless disenfranchise a person. Although the statute states that individuals must pay all LFOs imposed as a condition of supervision, it also states that individuals must pay only the amount specifically ordered by the court at sentencing. Yet, standard conditions of probation, which are imposed at sentencing, often require individuals to pay off certain debts that are only incurred after sentencing. Thus, SB 7066 will confuse potential voters and chill core First Amendment speech.
9. Finally, under SB 7066, it will be extraordinarily difficult for individuals with past convictions to determine their eligibility to vote and the risk of erroneous deprivation of the right to vote is high. Persons with both disqualifying and non-disqualifying LFOs will struggle to disaggregate those outstanding debts. And, the updated state voter
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registration form provided for in SB 7066 fails to inform people with convictions of the new eligibility requirements the law creates.
10. As a result of SB 7066, people with convictions will often be left in the dark and find themselves in need of a lawyer just to find out their eligibility to vote. Individuals who register in error risk felony prosecution and thus the unique threat of recidivism. Such ambiguity surrounding access to the right to vote violates procedural due process and cannot survive scrutiny under the First and Fourteenth Amendments.
JURISDICTION AND VENUE 11. This action is brought under the United States Constitution. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. 12. This Court has personal jurisdiction over Defendant Lee, who is an appointed state official and a resident of Florida. 13. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b). Among other things, the office of Defendant Lee is located in this District. 14. This Court has authority to issue declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201 and 2202.
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PARTIES 15. Plaintiff Bonnie Raysor (née Bonnie Ryan) is fifty-eight years old and has resided in Florida since she was seventeen. She is a United States citizen and currently resides in Boynton Beach, Florida. 16. After becoming addicted to opioids, Plaintiff Raysor was charged in 2009 and convicted in October 2010 of six felony and two misdemeanor drug-related charges. Since she was unable to afford an attorney, Plaintiff Raysor was assigned a public defender for these charges. She was sentenced to one year, six months, and five days in prison. Plaintiff Raysor was released from prison on March 29, 2011, with no parole or probation. She has no other criminal convictions. 17. Plaintiff Raysor works as an office manager and makes thirteen dollars per hour. She has a mortgage and a car payment and is responsible for the utilities, groceries, and other basic needs for herself and her nineteen-year-old daughter, who is a full-time student. She also has approximately $48,000 in student loan debt. 18. Voting is important to Plaintiff Raysor. As a Floridian, she knows how important a single vote can be in a close election. Voting gives
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her the opportunity to make a difference, and to speak her mind politically. It gives her the opportunity to make her voice heard.
19. When Amendment 4 passed, Plaintiff Raysor was thrilled to regain her right to vote. She proactively reached out for help to understand her rights and to ensure that she would be able to register to vote despite her past felony conviction.
20. Under SB 7066, however, Plaintiff Raysor is unable to register and vote in Florida. She has $4,260 in outstanding fines and fees related to her conviction.
21. Upon information and belief, this sum includes fines and fees associated with her two misdemeanor convictions, as well as her felony convictions. Upon information and belief, when Plaintiff Raysor was convicted, all fines and fees levied upon her were in the form of a civil lien. These fines and fees include the following: court costs, cost of prosecution, crime stoppers fund, cost of investigation, drug trust fund, public defender application fee, and public defender fee.
22. Based on her current income and ability to pay, Plaintiff Raysor is on a payment plan with the court, where she pays $30 per month towards her outstanding balance. Under this payment plan,
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Plaintiff Raysor will not pay off her LFOs until 2031. Thus, under SB 7066, she will not regain her right to vote for another twelve years, at which time she will be seventy years old.
23. Plaintiff Diane Sherrill is fifty-eight years old and is a Florida resident. She is a United States citizen and currently resides in St. Petersburg, Florida.
24. As a result of her struggle with addiction, Plaintiff Sherrill was convicted of one count of possession of crack cocaine in the third degree, two counts of possession of cocaine in the third degree, and one count of prostitution in the third degree between 1999 and 2005. For each of these charges, Plaintiff Sherrill was determined to be indigent and was assigned a public defender.
25. Plaintiff Sherrill has been drug-free and sober for over a decade. She has not had any criminal convictions since 2005. She has two adult children who live in the area and one grandchild. She is an active member of her church, Cornerstone Community Church.
26. Plaintiff Sherrill largely lives on a fixed Supplemental Security Income (SSI) of approximately $770 per month. She lives in public housing and receives approximately $70 per month in
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Supplemental Nutrition Assistance Program (SNAP) benefits, otherwise known as food stamps. She has recently obtained part-time work at the local Ruby Tuesdays as a hostess, earning $8 per hour for 15 hours per week.
27. Plaintiff Sherrill lives by herself and is responsible for her monthly rent of $200, her utility bills (including electric, internet, and phone), groceries, car insurance and gas, and any other household expenses.
28. Plaintiff Sherrill lost her driver’s license as a result of her convictions and unpaid LFOs. After ten years, she was recently able to reinstate her driver’s license in order to help care for her first grandchild.
29. Voting is important to Plaintiff Sherrill. As a Floridian, she knows how important a single vote can be in a close election. Voting gives her the opportunity to make a difference, and to speak her mind politically. It gives her the opportunity to make her voice heard.
30. A few years ago, Plaintiff Sherrill’s church set up a table for voter registration of congregants. Plaintiff Sherrill inquired about whether she could regain her voting rights. The organizers referred her to the Pinellas County Supervisor of Elections, Deborah Clark. Plaintiff
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Sherrill wrote to Supervisor Clark about restoring her voting rights and received an application in the mail in response.
31. Plaintiff Sherrill wanted to apply to restore her voting rights but could not understand the confusing application she was sent or the process she was supposed to follow.
32. After the passage of Amendment 4, Plaintiff Sherrill was excited to register to vote and join her political community in voting in the next election. Since her convictions are well behind her, she believed she would be eligible to vote under Amendment 4.
33. Under SB 7066, however, Plaintiff Sherrill will not be eligible to register to vote and vote in the next election.
34. Plaintiff Sherrill owes $2,279 in outstanding LFOs related to her convictions. These LFOs include, inter alia, the following: indigent criminal defense fees, fines, investigative costs, and court costs. Upon information and belief, these LFOs also include penalties for nonpayment. Upon information and belief, all of these outstanding LFOs were converted to civil liens and sent to a collections agency. Plaintiff Sherrill is living on a financial razor’s edge. She is unable to afford to pay these LFOs at this time and cannot foresee a time when she will ever be
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able to pay these LFOs in full. As a result, SB 7066 may amount to permanent disenfranchisement for Plaintiff Sherrill.
35. Plaintiff Lee Hoffman is sixty years old and a Florida resident. He is a United States citizen and currently resides in Plant City, Florida.
36. Plaintiff Hoffman is a disabled U.S. military veteran. In 1976, he enlisted in the U.S. Navy. After being administratively discharged for medical reasons, Plaintiff Hoffman moved to Florida in 1978 to help care for his mother, who was seriously ill.
37. Plaintiff Hoffman has six previous nonviolent felony convictions. He has a burglary conviction in Pinellas County from 1978, and convictions in Hillsborough County for criminal mischief in 1995, grand theft in 2001, and driving without a license and possession of cocaine in 2006. Plaintiff Hoffman also has a robbery conviction in California from 1985.
38. Since 2006, Plaintiff Hoffman has had no felony convictions. He completed probation in 2008. He now spends his time as a minister and advocate for the homeless, and was recently appointed to the Board of Directors of Bay Area Legal Services.
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39. Plaintiff Hoffman’s primary source of income is a monthly disability benefit in the amount of $907. He also works part time, three to four months each year, as a federal contractor with National Telecommunications Institute, working with the Internal Revenue Service. Plaintiff Hoffman earns approximately $1,140 per month during the months he spends working as a contractor.
40. Voting is important to Plaintiff Hoffman. As a Floridian, he knows how important a single vote can be in a close election. Voting gives him the opportunity to make a difference, and to speak his mind politically. It gives him the opportunity to make his voice heard.
41. When Amendment 4 passed in November 2018, Plaintiff Hoffman felt relieved and empowered. He was excited to finally have the opportunity to register and participate in the democratic process. He registered to vote in Hillsborough County on January 17, 2019. As of July 15, 2019, the State of Florida Voter Information Lookup tool maintained by the Florida Department of State lists Plaintiff Hoffman as an Active voter.
42. Shortly thereafter, Plaintiff Hoffman learned about SB 7066. Plaintiff Hoffman saw SB 7066 as a betrayal by lawmakers and an
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attempt to pull the rug out from under the thousands of formerly incarcerated Floridians who had registered to vote in the wake of Amendment 4.
43. Until he read about SB 7066, Plaintiff Hoffman did not know that he still owed LFOs associated with his felony convictions. Upon learning about SB 7066, he contacted the relevant county authorities to determine whether he had any outstanding LFOs. Plaintiff Hoffman believes he owes a total of $1,772.13 in LFOs, $469.88 of which are associated with his felony convictions.
44. Plaintiff Hoffman is not aware of any means by which he can prioritize payment of his felony LFOs to reduce the amount of time he is disenfranchised by SB 7066. Nor does he know whether the $469.88 associated with his felony convictions represents LFOs ordered at the time of his conviction, or if it incorporates amounts accrued at a later date.
45. If he was permitted to prioritize his felony LFOs, Plaintiff Hoffman estimates that he may be able to repay the outstanding balance associated with his felony convictions in approximately one to two years if he were to dedicate a significant portion of his supplemental income to
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paying off his LFOs—assuming that he does not have any unexpected medical or other emergency expenses. If he is unable to prioritize his LFOs, it would take over three times as long for him to pay his full outstanding debt. In any event, he is unable to pay off his felony LFOs prior to the start of the 2020 election cycle, and thus will be denied the right to vote under SB 7066.
46. Plaintiffs Raysor, Sherrill, and Hoffman seek to represent a class for Count 2 (Twenty-Fourth Amendment) and Count 4 (Procedural Due Process) defined as: all persons otherwise eligible to register to vote in Florida who are denied the right to vote pursuant to SB 7066 because they have outstanding LFOs.
47. Plaintiffs Raysor, Sherrill, and Hoffman seek to represent a subclass for Count 1 (Fourteenth Amendment) defined as: all persons otherwise eligible to register to vote in Florida who are denied the right to vote pursuant to SB 7066 because they are unable to pay off their outstanding LFOs due to their socioeconomic status.
48. Defendant Laurel M. Lee is the Secretary of State of Florida (“the Secretary”) and is sued in her official capacity. The Secretary is the head of the Department of State (“the Department”) and the chief election
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officer of the state. As chief election officer, the Secretary is responsible for obtaining and maintaining “uniformity in the interpretation and implementation of the election laws,” and providing “uniform standards for the proper and equitable interpretation and implementation” of such laws. Fla. Stat. § 97.012(1)-(2). The Secretary is also responsible for administering the statewide voter registration system. Id. § 97.012(11).
49. Further, under SB 7066, the Department of State is responsible for identifying registered voters who have been convicted of a felony and whose voting rights have not been restored, and for initiating the process for removing potentially ineligible individuals from the voter rolls. See S.B. 7066, supra, §§ 24, 25, amending Fla. Stat. § 98.075(5). The Department is similarly responsible for obtaining and reviewing information on new registrants’ eligibility for rights restoration and for initiating the process for rejecting applications from potentially ineligible voters. See id. § 25, enacting Fla. Stat. § 98.0751(3)(a).
FACTS 50. The Florida Constitution prohibits individuals with felony convictions from voting unless their voting rights have been restored. Fla. Const. art. VI, § 4. As of January 8, 2019, except for persons convicted of
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murder or felony sexual offense, voting rights are restored automatically “upon completion of all terms of sentence including parole and probation.” Id. Persons convicted of murder or felony sexual offense are permanently disenfranchised but may apply to the Board of Executive Clemency to have their voting rights restored on a case-by-case basis. See S.B. 7066, supra, § 25, enacting Fla. Stat. §98.0751(1).
SB 7066 51. On June 28, 2019, Governor DeSantis signed SB 7066 into law. SB 7066 purports to implement the constitutional provision restoring voting rights to individuals with felony convictions, and states: A person who has been disqualified from voting based on a felony conviction for an offense other than murder or a felony sexual offense must have such disqualification terminated and his or her voting rights restored pursuant to s. 4, Art. VI of the State Constitution upon the completion of all terms of his or her sentence, including parole or probation. S.B. 7066, supra, § 25, enacting Fla. Stat. § 98.0751(1). 52. But SB 7066 does not merely implement Amendment 4. Rather, it severely restricts access to the right to vote. SB 7066 defines “completion of all terms of sentence” to include not only any term of imprisonment, probation, community control or supervision (collectively, “carceral supervision”), but also the full payment of any LFOs, including
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restitution, fines and fees “ordered by the court as a part of the sentence or that are ordered by the court as a condition of any form of supervision,” even if those obligations have been converted to civil liens. Id., enacting Fla. Stat. § 98.0751(2).
53. Governor DeSantis’ signing statement accompanying SB 7066 does not address these financial barriers to voting but does state his personal opinion that Florida voters made a “mistake” by restoring “voting rights to violent felons.” By requiring the payment of all LFOs— many of which people with past convictions will never be able to pay— Governor DeSantis has ratified a law that will undermine Amendment 4, which he deems a “mistake.”
54. Florida does not require courts to consider ability to pay at the time LFOs are imposed. When seeking to enforce compliance with a legal financial obligation, however, courts may inquire into ability to pay. See, e.g., Fla. Stat. § 938.30. Based on the individual’s ability to pay, a court seeking to enforce a legal financial obligation may order the individual to comply with a payment schedule; convert the obligation to a judgment or civil lien against the individual’s property; or may, in limited instances, convert outstanding fines and court costs “into a court-ordered obligation
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to perform community service.” Id. Upon information and belief, many mandatory LFOs cannot be converted to community service.
55. SB 7006 defines the “completion” of LFOs to include: actual payment of the obligation in full; termination of the obligation by the court, with the approval of the payee; or completion of all community service hours where the court has converted the financial obligation to community service. SB 7066, supra, § 25, enacting Fla. Stat. § 98.0751(5)(e). Finally, SB 7066 states that “[t]he requirement to pay any financial obligation specified in this paragraph is not deemed completed upon conversion to a civil lien.” Id. This language, however, does not directly address the circumstance of Plaintiff Raysor, whose LFOs were imposed as civil liens as an initial matter.
56. While SB 7066 acknowledges that LFOs can be modified by the sentencing court, it does not require any modifications to LFOs, even in cases where indigence or inability to pay is the only barrier to voting rights restoration.
THE IMPACT OF SB 7066 57. Across all jurisdictions in Florida, over $700 million in fines, court costs, and other monetary penalties were assessed in 2018 alone.
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In addition, over $481 million in fees, service charges, and costs were assessed during 2018. These figures do not include the enormous sum of fines and fees that were assessed prior to 2018 but are still outstanding.
58. Criminal Circuit Courts in Florida assessed over $275 million in fines and fees during 2018. Of that amount, nearly thirty percent is categorized as at risk for collection due to indigence or reduction to a civil judgment or lien. In several Circuits, the amount at risk due to indigence is over forty percent. Criminal Circuit Courts in Florida converted only about $1.2 million in court fines to community service during 2018.
59. The Department of Corrections reported just under $20 million dollars in revenue from cost of supervision fees in fiscal year 20172018, nearly $50 million dollars in revenue from restitution, fines, and court costs, and over $20 million dollars in court ordered fees.1
60. Individuals with past felony convictions are more likely to have lower incomes than other registered voters, and to live in neighborhoods with higher unemployment than other Florida voters.2
1 Fla. Dep’t of Corr., 2017-2018 Annual Report 6, http://www.dc.state.fl.us/pub/annual/1718/FDC_AR2017-18.pdf.
2 See Kevin Morris, Thwarting Amendment 4, BRENNAN CTR. FOR JUSTICE, https://www.brennancenter.org/sites/default/files/analysis/2019_05_FloridaAmendment_FI NAL-3.pdf.
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61. On information and belief, many individuals with fines, fees, and restitution ordered as part of their sentence or as a condition of supervision related to a felony conviction also have other LFOs assessed through the criminal justice system. These may include LFOs associated with felony convictions but not ordered at the time of sentence or as a condition of supervision. In other instances, LFOs may be related to misdemeanor or civil judgments, rather than a felony conviction. On information and belief, these LFOs are not disaggregated by the County or the court when converted to a civil judgment, lien, community service, or incorporated into a payment plan.
62. For example, upon information and belief, Plaintiff Raysor has fines and fees associated with her misdemeanor convictions, which are a part of the $4,260 she still owes. Based on the records available to Plaintiff Raysor, she cannot ascertain how much of her $30 monthly payments go towards her felony versus misdemeanor LFOs. Nor does she know if she may prioritize paying the LFOs associated with her felony convictions, which prevent her from voting.
63. Similarly, Plaintiff Raysor does not know how the outstanding LFOs associated with her felony convictions break down, such that she
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cannot determine which of these LFOs fall within the scope of SB 7066, and which fall outside the scope of SB 7066. Nor does she know whether the fact that her LFOs were initially imposed as a civil lien—rather than converted—affects their status under SB 7066.
64. Likewise, Plaintiff Sherrill believes that some of her outstanding LFOs are penalties for nonpayment that should not bar her from voting under SB 7066. But since the full balance has been sent to a collections agency, she does not know if or how she may prioritize paying the LFOs that disqualify her from voting.
65. Plaintiff Sherrill does not know if there are additional fines, fees, and costs within her outstanding balance that fall outside the scope of SB 7066.
66. Finally, although only $469.88 of Plaintiff Hoffman’s $1,772.13 in LFOs are related to his felony convictions, he does not know how much of that amount was imposed as part of his sentence, or whether any of it encompasses penalties or other costs incurred after sentencing. Nor does Plaintiff Hoffman know how he can prioritize payment of those LFOs related to his felony convictions, to ensure he is not denied the right to vote on account of non-disqualifying LFOs.
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67. For individuals whose LFOs have been converted to community service, a civil judgment, or lien, satisfaction of the obligation is often determined by a private third-party. Private, non-profit, community, or charitable organizations may all serve as community service agencies for the purpose of court-ordered community service. See Fla. Stat. § 318.18. The responsibility for monitoring and recording community service hours—defined as “uncompensated labor for a community service agency”—falls to these entities. Id. Similarly, a county may pursue the collection of outstanding LFOs through private attorneys and collection agencies. Not only does this place the obligation in the hands of a third party, but Florida allows those parties to impose a surcharge of up to forty percent of the balance owed as a collection fee.
68. For example, at times when she was facing financial hardship, Plaintiff Raysor has fallen behind on paying her LFOs. As a result, in 2014, her debts were placed with a collection agency, Penn Credit, which imposed a forty percent surcharge on her balance. Plaintiff Raysor also lost her driver’s license as a consequence of her overdue LFOs. Ultimately, she was able to petition the court to remove the surcharge,
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place her back on a payment plan, and reinstate her driver’s license. She currently pays $30 per month toward her LFO balance.
69. Upon information and belief, Plaintiff Sherrill’s outstanding balance includes several substantial fees imposed as penalties for transfer to a collections agency.
70. Fines and fees that may be assessed as part of an individual’s sentence include, but are not limited to: mandatory assessments for the Court Cost Clearing Trust Fund, the Crimes Compensation Trust Fund, the Operating Trust Fund of the Department of Law Enforcement, a mandatory $225 fine for a felony conviction, mandatory fines assessed based on the specific felony conviction or convictions, mandatory costs authorized by local governmental entities, discretionary costs related to the specific type of case or conviction, and additional surcharges on these costs. See generally ch. 983, Fla. Stat.
71. In addition, conditions of carceral supervision imposed at sentencing may include, but are not limited to: payment of debts due to a detention center for medical care, treatment, hospitalization, or transportation; application fees and attorneys’ costs and fees if the individual had a public defender appointed; and reimbursement for costs
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of drawing and transmitting blood or DNA samples to the Department of Law Enforcement. See, e.g., Fla. Stat. § 948.03.
72. In other words, under SB 7066, it appears an individual’s right to vote may be conditioned on the payment of outstanding medical debt that accrues after sentencing.
73. Thus, the requirement in SB 7066 that an individual pay off all LFOs “ordered by the court as a condition of any form of supervision,” SB 7066, § 25, enacting Fla. Stat. § 98.0751(2)(a)(5)(b), is inconsistent with later language stating that payment of LFOs “accrue[d] after the date the obligation is ordered as a part of the sentence” is not required to be eligible for rights restoration, id., enacting Fla. Stat. § 98.0751(2)(a)(5)(c). This internally incoherent language will undoubtedly leave Florida citizens in the dark about which LFOs are disqualifying and which LFOs are not disqualifying.
74. Upon information and belief, this confusion will only be compounded by the lack of easy access to records disaggregating the LFOs incurred by a person with a past conviction. Plaintiffs Raysor, Sherrill, and Hoffman even with assistance of counsel, have been unable to ascertain this information with respect to their own outstanding debts.
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75. SB 7066 itself recognizes that Florida citizens are not likely to be able to assess their own eligibility to vote under this law. It provides for the creation of a “Restoration of Voting Rights Work Group.” SB 7066, §33. The work group is charged with developing recommendations for the Legislature related to “[t]he process of informing a registered voter of the entity or entities that are custodians of the relevant data necessary for verifying . . . eligibility for restoration of voting rights.” Id.
76. Yet, although SB 7066 became effective on July 1, 2019, these recommendations are not due to the Legislature for consideration until November 1, 2019. Id. In other words, the Legislature passed SB 7066 fully aware that eligible Florida citizens will struggle or be unable to ascertain their eligibility to vote.
77. Nonetheless, since July 1, 2019, Florida citizens risk criminal sanction if they register to vote while their voting rights have not, in fact, been restored under SB 7066’s vague and ambiguous language—despite the fact that the updated state voter registration form required by SB 7066 will not mention the LFO requirement at all.
78. Further, between January and March 2019 alone, more than 2,000 individuals with past felony convictions registered to vote in
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Florida.3 Indeed, upon information and belief, as many as 8,000 to 15,000 people with past felony convictions have registered to vote since the effective date of Amendment 4. Upon information and belief, many of these individuals, like Plaintiff Hoffman, have outstanding LFOs.
79. Defendant Lee is responsible for ensuring compliance with all state election laws. Yet, upon information and belief, Defendant Lee took no action during the period between January 8, 2019 and July 1, 2019 to prohibit individuals with past felony convictions who completed their sentence but had outstanding LFOs from registering to vote. Defendant Lee did not instruct registrars to deny the applications of individuals with past felony convictions on the basis of outstanding LFOs or remove individuals with past felony convictions from the voter rolls on the basis of outstanding LFOs.
80. In other words, prior to the enactment of SB 7066, Amendment 4’s implementation included no requirement that individuals with past convictions pay all outstanding LFOs prior to registering to vote. Defendant Lee did not interpret or implement Amendment 4 as denying rights registration to otherwise eligible
3 See Morris, supra note 2.
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individuals on the basis of outstanding LFOs. Nor did Defendant Lee recognize or seek to enforce a duty on the part of any county supervisor to deny rights registration to otherwise eligible individuals on the basis of outstanding LFOs.
81. SB 7066 itself recognizes that the state of Florida cannot retroactively punish otherwise eligible individuals with outstanding LFOs who registered to vote during the period between January 8, 2019 and July 1, 2019, on the basis that such individuals made a false affirmation by indicating that their voting rights had been restored. See S.B. 7066, 2019 Leg., Reg. Sess., § 26 (Fla. 2019) (enacting Fla. Stat. § 104.011(3)).
82. SB 7066 provides no such safe harbor, however, for individuals with outstanding LFOs who registered during the interim period and later vote in an election after July 1, 2019. Yet, like Plaintiff Hoffman, many such individuals remain actively registered despite the fact that SB 7066 is now in effect. SB 7066 placed every such individual in jeopardy of criminal prosecution if they subsequently vote in an election in reliance on their active registration status.
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83. The mechanics of SB 7066 are inordinately complicated for affected citizens, and its scope is vague. Its consequences, however, are clear. Under SB 7066, Floridians with past felony convictions who have completed their term of carceral supervision, including incarceration, probation, and parole, and who either do not have LFOs or have paid them off, will automatically have their voting rights restored. Individuals who have outstanding LFOs are denied the right to vote unless or until they are able to satisfy their financial obligations. An individual who is unable to pay off her outstanding LFOs due to her socioeconomic status is permanently denied the right to vote.
84. In short, SB 7066 conditions the restoration of voting rights entirely upon an individual’s financial resources, in violation of the Fourteenth and Twenty-Fourth Amendments.
EXECUTIVE CLEMENCY 85. Under SB 7066, individuals who are disenfranchised solely because of their outstanding LFOs may apply for executive clemency, subject to the “unfettered discretion” of the Florida Governor. See SB 7066, § 25, enacting Fla. Stat. § 98.0751(1); Fla. R. Exec. Clemency 4.
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This “unfettered discretion” means the Governor has the authority “to deny clemency at any time, for any reason.” Fla. R. Exec. Clemency 4.
86. Thus, individuals able to pay their LFOs can register and vote automatically upon completing carceral supervision, while those unable to pay are disenfranchised indefinitely, subject to the whim of the Governor.
87. Applying for executive clemency is extremely burdensome. An individual with outstanding LFOs must wait seven years after the completion of carceral supervision to apply for a restoration of civil rights.4 Fla. R. Exec. Clemency 5. If denied, an applicant must wait for at least two years to reapply. Fla. R. Exec. Clemency 14. Applications must contain certified copies of the charging document, judgment, and sentence for each felony conviction. Fla. R. Exec. Clemency 6(B). After applying, the individual is subject to an investigation by the Florida Commission on Offender Review, and her application will be decided at a hearing in Tallahassee.5 Fla. R. Exec. Clemency 8(B). The applicant
4 Individuals with no outstanding restitution may be eligible to apply for rights restoration after five years, depending on their crime of conviction. See Fla. R. Exec. Clemency 9.
5 Prior to January 8, 2019, all Floridians with past felony convictions were permanently disenfranchised unless they applied for and obtained a restoration of civil rights from the Governor and the Board of Clemency. Under this system, individuals who had paid their restitution were eligible to apply for rights restoration without being subject to a
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must give ten days notice to the Board if she or any other person intends to speak at the hearing on her behalf. Fla. R. Exec. Clemency 12(B). The final determination of any application is subject to the “unfettered discretion” of the Florida Governor. Fla. R. Exec. Clemency 4.
88. Thus, even after completing the burdensome application process, individuals who lack the means to pay their LFOs will not be allowed to vote “unless Florida’s Governor approves restoration of this fundamental right” or a complete remission of their LFOs. Hand v. Scott, 285 F. Supp. 3d 1289, 1292 (N.D. Fla. 2018). Meanwhile, similarly situated individuals—including those convicted of the same crimes—are granted automatic restoration of their voting rights based solely on their ability to pay their LFOs.
89. This process necessarily discriminates on the basis of wealth. Rights restoration is guaranteed to individuals of financial means, while the indigent must not only suffer the indignity of having to beg for their
hearing. In Johnson v. Governor of Fla., the Eleventh Circuit found the hearing requirement, standing alone, insufficient to support a claim that restoration was conditioned upon an applicant’s financial resources. 405 F.3d 1214, 1216 n.1 (11th Cir. 2005). The Court reserved ruling, however, on the question of “whether conditioning an application for clemency on paying restitution would be an invalid poll tax.” Id. Plaintiffs’ claims present exactly the question reserved by the Court. But for their outstanding LFOs, Plaintiffs’ voting rights would be restored. But for their outstanding LFOs, Plaintiffs would not be subject to a discretionary restoration process at all. The entire clemency procedure is conditioned upon otherwise eligible individuals’ inability to pay.
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rights to be restored, but they must do so on blind faith, without any notice of the conditions, factors, or whims that will determine if their application is successful.
CLASS ALLEGATIONS 90. Upon information and belief, at least 500,000 individuals with past felony convictions who are otherwise eligible under Amendment 4 have outstanding LFOs and are therefore not qualified for voting rights restoration under SB 7066, just like Plaintiffs. Thousands of currently registered voters with outstanding LFOs risk removal from the voter registration rolls, or, to the extent they remain on the rolls, criminal prosecution if they vote in reliance on their active registration. Countless otherwise eligible individuals will be prevented from exercising their right to vote in the future because they are unable to pay their LFOs due to their socioeconomic status. 91. Pursuant to Federal Rule of Civil Procedure 23, Plaintiffs Raysor, Sherrill, and Hoffman bring this action on behalf of themselves and all other similarly situated persons. Plaintiffs Raysor, Sherrill, and Hoffman do not seek claims for compensatory relief. Instead, Plaintiffs seek only declaratory and injunctive relief broadly applicable to members
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of the Plaintiff Class and the Plaintiff Subclass, as defined above. The requirements of Rule 23, and in particular Rule 23(b)(2), are met with respect to the Plaintiff Class and Plaintiff Subclass as defined in ¶¶ 22 and 23.
92. The members of the Plaintiff Class and Plaintiff Subclass are so numerous that joinder is impracticable. While the exact number of members in the Plaintiff Class and Plaintiff Subclass are not publicly available, upon information and belief, the total number of otherwise eligible citizens of Florida disenfranchised due to some combination of outstanding fines, fees, or restitution exceeds 500,000. The Plaintiff Class and Plaintiff Subclass are ascertainable through Defendant’s records and records kept by the Florida State Department of Corrections. Indeed, under SB 7066, it is Defendant’s responsibility to identify registrants who are not eligible for rights restoration because they have outstanding LFOs.
93. Common questions of law and fact predominate over questions affecting only individual class and subclass members with respect to allegations in this complaint. Those questions include, but are not limited to, the following:
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a. Whether SB 7066 discriminates on the basis of wealth in violation of the Fourteenth Amendment.
b. Whether SB 7066 constitutes a poll tax in violation of the Twenty-Fourth Amendment.
c. Whether SB 7066 creates an impermissible risk of erroneous deprivation of the fundamental right to vote in violation of the Fourteenth Amendment.
94. Plaintiffs’ claims are typical of the Plaintiff Class and Plaintiff Subclass as defined in ¶¶ 22 and 23. Plaintiffs Raysor, Sherrill, and Hoffman are not aware of any conflict between their interests and those of the Plaintiff Class and Plaintiff Subclass they seek to represent.
95. Plaintiffs Raysor, Sherrill, and Hoffman can fairly and adequately represent the interests of the Plaintiff Class and Plaintiff Subclass because they are similarly situated with class members. Plaintiffs have retained counsel experienced in class-action and voting rights litigation to represent them and the Plaintiff Class and Plaintiff Subclass for the purpose of this litigation.
96. Defendants have acted, or refused to act, on grounds generally applicable to the entire class, and final injunctive relief and
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corresponding declaratory relief are appropriate respecting the class as a whole.
CLAIMS Count 1: Wealth-Based Disenfranchisement,
Fourteenth Amendment 97. Plaintiffs reallege the facts set forth in paragraphs 1-96 above. 98. Wealth “is not germane to one’s ability to participate intelligently in the electoral process.” Harper v. Va. State Bd. of Elections, 383 U.S. 663, 668 (1966). 99. A state “violates the Equal Protection Clause of the Fourteenth Amendment whenever it makes the affluence of the voter or payment of any fee an electoral standard.” Id. at 666; see also Johnson v. Governor of Fla., 405 F.3d 1214, 1216 n.1 (11th Cir. 2005). 100. By requiring an otherwise eligible Florida citizen to pay all LFOs before she is eligible to restore her right to vote, SB 7066 impermissibly makes financial payments an electoral standard. 101. By requiring an otherwise eligible Florida citizen to pay all LFOs before she is eligible to restore her right to vote, SB 7066
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impermissibly makes the affluence of an otherwise eligible voter an electoral standard.
102. It is well established that “a citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction.” Dunn v. Blumstein, 405 U.S. 330, 336 (1972). Thus, “[h]aving once granted the right to vote on equal terms, the State may not by later arbitrary and disparate treatment, value one person’s vote over that of another.” Bush v. Gore, 531 U.S. 98, 104–5 (2000). Rather, “once the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment.” Harper, 383 U.S. at 665.
103. Plaintiffs Raysor, Sherrill, and Hoffman, and members of the Plaintiff Subclass are unable to afford to pay their remaining LFOs, and, as of July 1, 2019, this is the only reason they are not eligible to register and vote in the state of Florida. In the case of Plaintiff Hoffman, SB 7066 will lead to his removal from the voter rolls and prohibits him from voting even while he remains on the voter rolls.
104. The mere possibility that LFOs could, in some cases, be modified—left to the discretion of individual judges—does nothing to
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alleviate this unconstitutional barrier to voting for Plaintiffs and other
members of the Plaintiff Subclass. Nor does the possibility that the
Governor could, if he felt so moved, exercise his discretion to restore the
right to vote to individuals with outstanding LFOs on a case-by-case
basis. Indeed, Representative James Grant noted in enacting SB 7066
that discretionary rights restoration is “‘a recipe for rampant
discrimination.’”6 Moreover, it is well established that imposing
additional requirements on voters who cannot pay is no more
constitutionally permissible than outright disenfranchisement. See
Harman v. Forssenius, 380 U.S. 528 (1965).
105. It is also well established that a state may not impose
additional punishment7 or deprive a citizen of a fundamental right solely
because “through no fault of his own, he cannot pay the fine.” Bearden v.
Georgia, 461 U.S. 660, 673 (1983). In other words, Bearden requires a
6 Tyler Kendall, Felons in Florida Won Back Their Right to Vote. Now a New Bill Might Limit Who Can Cast a Ballot, CBS News (May 23, 2019), https://www.cbsnews.com/news/florida-felons-won-back-right-to-vote-new-bill-might-limitwho-can-cast-ballot-2019-05-23/.
7 While not a necessary element of Plaintiffs’ claims, disenfranchisement on the basis of a past conviction—and continued because of inability to pay LFOs—certainly qualifies as punishment. See Johnson, 405 F.3d at 1228 (“Indeed, throughout history, criminal disenfranchisement provisions have existed as a punitive device.”); see also Act of June 25, 1868, ch. 70, 15 Stat. 73, 73 (Readmission Act for Florida) (prohibiting any change to the state constitution that “deprive[s] any citizen or class of citizens of the United States of the right to vote . . . except as punishment for such crimes as are now felonies at common law”).
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careful consideration of ability to pay before fundamental rights are withheld on the basis of failure to pay a fine.
106. SB 7066 provides no such procedure. Neither Plaintiffs Raysor nor Sherrill have a mechanism for receiving an exception from SB 7066’s requirements because they are unable to pay their LFOs prior to the next election. In the case of Plaintiff Lee, SB 7066 authorizes his removal based on outstanding LFOs without any inquiry into his ability to pay his LFOs. Failure to condition the LFOs requirement on an ability to pay inquiry further violates “the fundamental fairness required by the Fourteenth Amendment.” Id.
107. Florida has no cognizable interest in denying its citizens the right to vote solely on the basis that they are unable to pay their LFOs. “[W]ealth or fee paying has . . . no relation to voting qualifications.” Harper, 383 U.S. at 670. When the LFOs requirement is applied to those unable to pay, “the statute merely prevents” citizens from voting “without delivering any money at all into the hands of [the State].” Zablocki v. Redhail, 434 U.S. 374, 389 (1978); see also Bearden, 461 U.S. at 670 (“Revoking the probation of someone who through no fault of his own is
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unable to make restitution will not make restitution suddenly forthcoming.”).
108. SB 7066 invidiously discriminates between Florida citizens with prior felony convictions who have been discharged from carceral supervision and who are able to pay their LFOs, and Florida citizens with prior felony convictions, who have been discharged from carceral supervision but are unable to pay their LFOs, in violation of the Fourteenth Amendment.
Count 2: Poll Tax, Twenty-Fourth Amendment 109. Plaintiffs reallege the facts set forth in paragraphs 1-108 above. 110. The Twenty-Fourth Amendment provides that “[t]he right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, 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.” U.S. Const. amend. XXIV, § 1 (emphasis added).
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111. For those who are otherwise eligible, SB 7066 denies the right to vote to those who cannot afford to pay their LFOs solely by reason of their failure to pay fines and fees to the State of Florida.
112. SB 7066 hinges access to the right to vote on the payment of many fines and fees to the government—such as contributions to various state funds and to the costs of the court system itself—that fall well within any reasonable definition of “other tax.” See U.S. v. State Tax Comm’n of Miss., 421 U.S. 599, 606 (1975) (noting that the “standard definition of a tax” is any “enforced contribution to provide for the support of government”).
113. The failure to call SB 7066’s LFOs requirement a “poll tax” does nothing to change its function, which hinges access to the ballot box on the payment of a variety of fines and fees to the state of Florida. See Harman, 380 U.S. at 540-41 (“[T]he Twenty-fourth [Amendment] nullifies sophisticated as well as simple-minded modes of impairing the right guaranteed.” (internal quotation marks omitted)).
114. SB 7066 directly conflicts with the prohibition of the TwentyFourth Amendment.
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Count 3: Void for Vagueness, First and Fourteenth Amendment 115. Plaintiffs reallege the facts set forth in paragraphs 1-114,
above. 116. The Due Process Clause of the Fourteenth Amendment to the
U.S. Constitution requires that a law that imposes penalties give ordinary people reasonable notice of what conduct it prohibits and guard against arbitrary and discriminatory enforcement.
117. The applicability of the void for vagueness doctrine is heightened both when criminal sanctions are attached to a vague law and when the First Amendment is implicated.
118. Here, SB 7066 does both. It attaches threat of criminal sanction to the acts of registering to vote and voting, both of which fall squarely within “core political speech” given the utmost First Amendment protection.
119. SB 7066 does not reasonably inform people with past convictions of which LFOs—imposed as a condition of supervision or imposed in the first instance as civil liens—are disqualifying and which are not. Nor does it, by its own admission, provide citizens with access to the records necessary to determine their eligibility. Like Plaintiffs, the
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reasonable person with a variety of outstanding LFOs will not be able to determine which LFOs are disqualifying and which are not, or how to prioritize paying disqualifying LFOs.
120. The state voter registration form—as updated by SB 7066— will not provide citizens with meaningful information to determine their eligibility to vote.
121. Nonetheless, the state subjects voters who make an error in determining their eligibility to the threat of criminal prosecution.
122. This cocktail of confusion and obfuscation will undeniably chill the registration and voting of eligible Florida voters in violation of the First and Fourteenth Amendments. The ambiguous portions of the LFOs requirement—as they relate to LFOs imposed as conditions of supervision or as civil liens in the first instance—must be enjoined.
Count 4: Violation of Due Process, Fourteenth Amendment 123. Plaintiffs reallege the facts set forth in paragraphs 1-122,
above. 124. A “claim alleging a denial of procedural due process requires
proof of three elements: (1) a deprivation of a constitutionally protected liberty or property interest; (2) state action; and (3) constitutionally
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inadequate process.” Grayden v. Rhodes, 345 F.3d 1225, 1232 (11th Cir. 2003).
125. Plaintiffs Raysor, Sherrill, and Hoffman and the members of the Plaintiff Class and Subclass have a constitutionally protected right to vote upon completion of their sentence per Art. VI § 4 of the Florida Constitution and the Fourteenth Amendment to the U.S. Constitution.
126. SB 7066 denies otherwise eligible individuals the right to vote unless and until they pay off certain—but not all—legal financial obligations.
127. Further, SB 7066 fails to provide for adequate procedures to ensure that individuals who qualify for rights restoration are able to register and vote in Florida.
128. Determining what process is due under the Fourteenth Amendment “is a flexible concept that varies with the particular circumstances of each case.” Id. Under Mathews v. Eldridge, the determination of what process is due rests on the balance between (1) the interest affected; (2) the risk of erroneous deprivation under the current procedures and the “probable value, if any, of additional or substitute procedural safeguards;” and (3) the state’s interest, including the “fiscal
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and administrative burdens” additional procedures would entail. 424 U.S. 319, 335 (1976).
129. Here, the constitutionally protected interest at stake is no less than the fundamental right to vote, and the risk of erroneous deprivation is high. SB 7066 conditions the restoration of voting rights on payment of unenumerated legal financial obligations, without providing for any process by which an otherwise eligible voter can (1) differentiate between LFOs that are disqualifying and those which are non-disqualifying, or (2) prioritize payment of disqualifying LFOs, such that they are not disenfranchised by their inability to pay off non-disqualifying LFOs.
130. The Florida criminal justice system imposes a dizzying array of fines, fees, and costs on persons with felony convictions, including processing fees, surcharges, penalties, and costs that are incurred after sentencing, but which must be paid off as a condition of supervision. Not only is SB 7066 itself internally inconsistent about which LFOs disqualifying, it fails to provide any procedures for otherwise eligible individuals to determine which of their LFOs are disqualifying, or to prioritize payment of those LFOs that prevent them from being able to vote.
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131. In other words, even those individuals able to pay their disqualifying LFOs may be denied the right to vote because they are unable to determine which LFOs are disqualifying, or because they are not allowed to pay fully their disqualifying LFOs without also paying toward their non-disqualifying LFOs.
132. Further, SB 7066 fails to provide any procedures for how Defendant Lee shall identify registered voters or new registrants whose rights have not been restored due to disqualifying LFOs, including on what basis Defendant Lee shall determine that information related to an individual’s disqualifying LFOs is “credible and reliable.” S.B. 7066, 2019 Leg., Reg. Sess., § 24 (Fla. 2019).
133. In creating the Restoration of Voting Rights Work Group, SB 7066 acknowledges that Defendant Lee does not yet know what data is necessary to determine an individual’s eligibility to vote under SB 7066, and that no process yet exists for informing registered voters where they may find this information. Indeed, the Work Group’s report and recommendations for developing these data sources and procedures are not due until four months after the effective date for SB 7066. And the
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law makes no provision for when or if these recommendations, or any other such procedures, shall be adopted.
134. The lack of procedural safeguards creates a substantial likelihood that eligible voters will be denied the right to vote upon completion of their sentence based on outstanding but non-disqualifying LFOs.
135. In other words, SB 7066 creates a substantial likelihood that individuals entitled to rights restoration under the Florida Constitution will be erroneously deprived of their right to vote.
136. As stated above, the state has no cognizable interest in discriminating against otherwise eligible voters on the basis of wealth. Nor does the state have any interest in using the right to vote as an incentive for individuals to pay their LFOs. And even to the extent the state has an interest in ensuring that persons with past felony convictions pay in full their financial obligations associated with their convictions, there is simply no evidence to suggest that withholding voting rights until payment of LFOs is complete assists the state in achieving that end any more so than existing procedures unrelated to voting. Indeed, the fiscal and administrative burdens on the state of
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ensuring that eligible voters are not denied the right to vote under SB 7066 are substantially higher than they otherwise would be, absent the LFO requirements.
137. SB 7066 therefore violates due process because it creates a procedure for restoration of voting rights that is fundamentally unfair and gives rise to a substantial likelihood of erroneous deprivation of the right to vote, and which cannot be justified by any cognizable state interest.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully pray that this Court:
(1) Certify the Plaintiff Class as defined in paragraph 46, and the Plaintiff Subclass as defined in paragraph 47;
(2) Issue a declaratory judgment that SB 7066, by its terms and as applied, violates the Fourteenth and Twenty-Fourth Amendments of the U.S. Constitution;
(3) Issue a declaratory judgment that the identified LFOs portions of SB 7066, by their terms and as applied, are void for vagueness in violation of the First and Fourteenth Amendments;
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(4) Issue a declaratory judgment that SB 7066 fails to provide adequate safeguards against unlawful disenfranchisement in violation of the Fourteenth Amendment;
(5) Enjoin Defendant, her agents, employees, and successors, and all those persons acting in concert or participation with them, from enforcing SB 7066 including: a. Enjoining Defendant from initiating a process for the rejection of any voter registration applications on the basis of outstanding LFOs; b. Enjoining Defendant from initiating a process for the removal of any voters from the voter registration rolls on the basis of outstanding LFOs; c. Requiring Defendant to instruct county election supervisors that outstanding LFOs do not disqualify any individual from voting rights restoration, and therefore not to remove or reject any registrant based on outstanding LFOs;
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d. Requiring Defendant to inform those with past felony convictions that the failure to pay LFOs does not disqualify them from voting rights restoration under Amendment 4;
e. Requiring Defendant to instruct county election supervisors to restore Florida citizens to the voter registration rolls if they were removed solely on the basis of their outstanding LFOs;
(6) Award Plaintiffs their costs, expenses, and reasonable attorneys’ fees incurred in the prosecution of this action, as authorized by the Civil Rights Attorney’s Fees Awards Act of 1973, 42 U.S.C. § 1988(b); and
(7) Grant such other equitable and further relief as the Court deems just and proper.
Respectfully submitted, /s/ Chad W. Dunn
Counsel for Plaintiff Chad W. Dunn Florida Bar No. 0119137 1200 Brickell Avenue, Suite 1950 Miami, FL 33131 Telephone: (305) 783-2190
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Facsimile: (305) 783-2268 chad@brazilanddunn.com Danielle Lang (DC Bar No. 1500218)* Mark P. Gaber (DC Bar No. 988077)* Molly E. Danahy (DC Bar No. 1643411)* Blair Bowie (DC Bar No. 252776)* Jonathan Diaz (DC Bar No. 1613558)* 1101 14th Street NW, Suite 400 Washington, DC 20005 Telephone: (202) 736-2200 dlang@campaignlegal.org mgaber@campaignlegal.org mdanahy@campaignlegal.org bbowie@campaignlegal.org jdiaz@campaignlegal.org *admitted pro hac vice
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA TALLAHASSEE DIVISION

KELVIN LEON JONES et al.,

Plaintiffs, v.

CONSOLIDATED CASE NO. 4:19cv300-RH/MJF

RON DeSANTIS et al.,

Defendants.

_________________________________________/

ORDER DENYING THE MOTION TO DISMISS OR ABSTAIN AND GRANTING A PRELIMINARY INJUNCTION

These consolidated cases arise from a voter-initiated amendment to the Florida Constitution that automatically restores the right of most felons to vote, but only “upon completion of all terms of sentence including parole or probation.” The Florida Supreme Court will soon decide whether “all terms of sentence” means not only terms of imprisonment and supervision but also fines, restitution, and other financial obligations imposed as part of a sentence. The Florida Legislature has enacted a statute that says the phrase does include these financial obligations.
The principal issue in these federal cases is whether the United States Constitution prohibits a state from requiring payment of financial obligations as a
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condition of restoring a felon’s right to vote, even when the felon is unable to pay. A secondary issue is whether the state’s implementation of this system has been so flawed that it violates the Constitution.
I. Background: the Cases and the Pending Motions The constitutional amendment at issue is popularly known as “Amendment 4” based on its placement on the November 2018 ballot. The amendment has given rise to state-law issues of interpretation and implementation and also to substantial federal constitutional issues. The statute that purports to interpret and implement Amendment 4 is often referred to as SB7066. The plaintiffs in these five consolidated federal actions are 17 individuals and three organizations. The individuals have been convicted of felonies, have completed their terms of imprisonment and supervision, and would be entitled to vote based on Amendment 4 and SB7066 but for one thing: they have not paid financial obligations imposed when they were sentenced. All but two of the individual plaintiffs have sworn that they are unable to pay the financial
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obligations; the other two have alleged, but not sworn, that they are unable to pay.1 The organizational plaintiffs are the Florida State Conference of the NAACP, the Orange County Branch of the NAACP, and the League of Women Voters of Florida. They have associational standing to represent individuals whose eligibility to vote is affected by Amendment 4 and SB7066.
The plaintiffs assert that conditioning the restoration of a felon’s right to vote on the payment of financial obligations violates the United States Constitution, both generally and in any event when the felon is unable to pay. The plaintiffs rely on the First Amendment, the Fourteenth Amendment’s Equal Protection and Due Process Clauses, and the Twenty-Fourth Amendment, which says the right to vote in a federal election cannot be denied by reason of failure to pay “any poll tax or other tax.” The plaintiffs also allege that the state’s implementation of this system for restoring the right to vote has been so flawed that this, too, violates the Due Process Clause. The plaintiffs seek declaratory and injunctive relief.
1 See Gruver Decl., ECF No. 152-2; Mitchell Decl., ECF No. 152-3; Riddle Decl., ECF No. 152-4; Leitch Decl., ECF No. 152-5; Ivey Decl., ECF No. 152-6; Wrench Decl., ECF No. 152-7; Wright Decl., ECF No. 152-8; Phalen Decl., ECF No. 152-9; Miller Decl., ECF No. 152-10; Tyson Decl., ECF No. 152-11; McCoy Decl., ECF No. 152-12; Singleton Decl., ECF No. 152-13; Raysor Decl., ECF No. 152-14; Sherrill Decl., ECF No. 152-15; Hoffman Decl., ECF No. 152-16; Compl. in 4:19-cv-300, ECF No. 1 at 5-6 (plaintiff Kelvin Jones); Compl. in 4:19-cv-272, ECF No. 1 at 5-6 (plaintiff Luis Mendez).
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The defendants, all in their official capacities, are the Secretary of State and Governor of Florida, the Supervisors of Elections of the counties where all but two of the individual plaintiffs reside, and the Supervisor of Elections of Orange County, where no individual plaintiff resides but one of the organizational plaintiffs is based. The counties where an individual plaintiff resides but the Supervisor is not a defendant are Broward and Pinellas.
The officials who are primarily responsible for administering the state’s election system and registering voters are the Secretary at the state level and the Supervisors of Elections at the county level. They are proper defendants in an action of this kind. See Ex parte Young, 209 U.S. 123 (1908).
The Secretary and Governor are the defendants who speak for the state in this litigation. They have consistently taken the same positions. For convenience, and because the Secretary, not the Governor, has primary responsibility for elections and voting, this order usually refers to the Secretary as shorthand for both of these defendants, without also mentioning the Governor.
The Secretary has moved to dismiss or abstain. The plaintiffs have moved for a preliminary injunction. The motions have been fully briefed and orally argued. The record consists of live testimony given at an evidentiary hearing as well as deposition testimony, declarations, and a substantial number of exhibits.
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II. Background: Felon Disenfranchisement, Amendment 4, and SB7066 Florida has disenfranchised felons going back to at least 1845. Its authority to do so is beyond question. In Richardson v. Ramirez, 418 U.S. 24 (1974), the Supreme Court read an apportionment provision in section 2 of the Fourteenth Amendment as authority for states to disenfranchise felons. As Justice O’Connor, speaking for the Ninth Circuit, later said, “it is not obvious” how the section 2 apportionment provision leads to this result. Harvey v. Brewer, 605 F.3d 1067, 1072 (9th Cir. 2010). But one way or the other, Richardson is the law of the land. Recognizing this, in Johnson v. Governor of Florida, 405 F.3d 1214 (11th Cir. 2005) (en banc), the court explicitly upheld Florida’s then-existing disenfranchisement provisions. The bottom line: Florida’s longstanding practice of denying an otherwise-qualified citizen the right to vote on the ground that the citizen has been convicted of a felony is not, without more, unconstitutional. Florida has long had an Executive Clemency Board with authority to restore an individual’s right to vote. The Board has operated without articulated standards, see Hand v. Scott, 285 F. Supp. 3d 1289, 1293-94, 1306-08 (N.D. Fla. 2018), and, as shown by the testimony in this record, has moved at glacial speed. See, e.g., Hr’g Tr., ECF No. 204 at 170-71. The issue in Hand, which is now on appeal, was whether the Executive Clemency Board was operating in an unconstitutional
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manner. Both sides have told the Eleventh Circuit that Amendment 4 has rendered Hand moot because all the plaintiffs in that case are now eligible to vote.
Florida’s Constitution allows voter-initiated amendments. To pass, a proposed amendment must garner 60% of the vote in a statewide election. Fla. Const. art XI, § 5(e). Amendment 4, which passed with 64.55% of the vote, added a provision automatically restoring the voting rights of some—not all—felons. The new provision became effective on January 8, 2019 and was codified as part of Florida Constitution article VI, section 4. SB7066 purports to implement the Amendment.
The full text of section 4, with the new language underlined, follows: (a) No person convicted of a felony, or adjudicated in this or any other state to be mentally incompetent, shall be qualified to vote or hold office until restoration of civil rights or removal of disability. Except as provided in subsection (b) of this section, any disqualification from voting arising from a felony conviction shall terminate and voting rights shall be restored upon completion of all terms of sentence including parole or probation. (b) No person convicted of murder or a felony sexual offense shall be qualified to vote until restoration of civil rights.
Fla. Const. art. VI, § 4 (emphasis added). The exclusion of felons convicted of murder or sexual offenses is not at issue in these cases, and references in this order to “felons” should be read to mean felons convicted only of other offenses, when the context makes this appropriate.
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SB7066 includes a variety of provisions. Two are the most important for purposes of this litigation. First, SB7066 explicitly provides that “all terms of sentence” within the meaning of Amendment 4 includes financial obligations imposed as part of the sentence—that is, “contained in the four corners of the sentencing document.” Fla. Stat. § 98.0751(2)(a). Second, SB7066 explicitly provides that this also includes financial obligations that the sentencing court converts to a civil lien. Id. Conversion to a civil lien, usually at the time of sentencing, is a longstanding Florida procedure that courts often use for obligations a criminal defendant cannot afford to pay. See Fla. Stat. § 938.30(6)-(9); Hr’g Tr., ECF No. 204 at 94; Timmann Dep., ECF No. 194-1 at 31; Haughwout Decl., ECF No. 167-103 at 5-6; ECF No. 167-20 at 48.
III. The Motion to Dismiss: Redressability The Secretary’s motion to dismiss asserts that the plaintiffs lack standing. This is so, the Secretary says, because the plaintiffs’ claims are not redressable in this action. The Secretary’s theory is this: the plaintiffs explicitly challenge only SB7066, not Amendment 4, but if Amendment 4 is construed to require payment of financial obligations—an issue for the Florida Supreme Court, not this court— the plaintiffs will still be unable to vote, and no declaration or injunction could be entered in this action that would change this. The Secretary is of course correct that a plaintiff cannot pursue a claim in federal court that even if successful would
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make no difference. See, e.g., Fla. Family Policy Council v. Freeman, 561 F.3d 1246 (11th Cir. 2009).
The flaw in the Secretary’s position is that she reads the plaintiffs’ claims too narrowly. The individual plaintiffs assert, among other things, that the State cannot preclude them from voting just because they lack the financial resources to pay financial obligations. And the plaintiffs assert the State’s process for restoring the right to vote is so flawed that it violates the Due Process Clause. The organizational plaintiffs make the same claims on behalf of felons whose rights they assert. If the plaintiffs are correct, the constitutional violations can be remedied through an appropriate injunction. Indeed, this order issues an injunction, though not one as broad as the plaintiffs request. That the plaintiffs do not assert Amendment 4 is itself unconstitutional on its face does not change this.
IV. Abstention As an original matter, one could reasonably argue both sides of the question whether “all terms of sentence including parole or probation” includes fines, restitution, and other financial obligations imposed at the time of sentencing. This is an issue of Florida, not federal, law. And it is a question of Florida constitutional law. The Legislature’s view, as set out in SB7066, is not controlling. At least as against the Secretary of State and Governor, if not also the Supervisors of Elections, this court’s jurisdiction to resolve the issue is subject to
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doubt. See, e.g., Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 121 (1984) (holding that the Eleventh Amendment bars any claim for injunctive relief based on state law against a state or against a state officer); but see Harvey, 605 F.3d at 1080-81 (resolving state-law felon-disenfranchisement issues on the merits). In any event, any resolution of this issue in these consolidated federal cases would be short-lived; the Florida Supreme Court, whose view on this will be controlling, has oral argument on this very issue scheduled just three weeks hence. See ECF No. 148-14 at 2.
The Secretary says the proper manner of dealing with this uncertainty in these federal cases is to abstain. The Secretary first invokes Railroad Commission of Texas v. Pullman Co., 312 U.S. 496 (1941), under which a federal court abstains from deciding a federal constitutional question when there exists an unclear issue of state law whose resolution might moot the federal constitutional question or present it in a substantially different light.
But for two circumstances, the Secretary would be correct. Indeed, but for the two circumstances, this is the very paradigm of a proper case for Pullman abstention. A decision by the Florida Supreme Court that Amendment 4 does not require payment of financial obligations as a condition of restoring voting rights would moot the constitutional questions presented in this case.
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The first of the two countervailing circumstances is that this is a votingrights case and elections are upcoming; delay would decrease the chance that this case can be properly resolved both in this court and on appeal in time for eligible voters—and only eligible voters—to be able to vote. There are local elections on November 5, almost surely before the Florida Supreme Court will rule, and a presidential primary in March, already leaving little time for a preliminaryinjunction ruling in this court and appellate review before the voting begins.2
The Supreme Court has squarely held that a district court does not abuse its discretion by declining to abstain under Pullman in circumstances like these. See Harman v. Forssenius, 380 U.S. 528, 537 (1965) (“Given the importance and immediacy of the problem [the right to vote], and the delay inherent in referring questions of state law to state tribunals, it is evident that the District Court did not abuse its discretion in refusing to abstain.”) (footnote omitted). The Eleventh Circuit en banc has reached the same conclusion. See Siegel v. LePore, 234 F.3d 1163, 1174 (11th Cir. 2000) (en banc) (“[V]oting rights cases are particularly inappropriate for abstention.”).
2 See Fla. Dep’t of State, Dates for Local Elections All 2019 Election Dates, https://dos.elections.myflorida.com/calendar/. At least one named plaintiff wishes to vote in a local election on November 5. Wright Decl., ECF No. 152-8 at 6.
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The Secretary says these decisions apply only in voting-rights cases and do not apply here because the plaintiffs are felons who have no right to vote—that this case involves only restoration of the right to vote, not an already-existing right to vote. But voting is no less important to these plaintiffs than to others, and a ruling on the plaintiffs’ constitutional rights is no less urgent than it would be for individuals who have never been convicted. Moreover, the Secretary’s proposed distinction assumes she is right on the merits—that, as she contends on the merits, the plaintiffs still have no right to vote. A court does not properly decide to abstain by first accepting a defendant’s position on the merits.
The second circumstance that makes abstention inappropriate here is that the Florida Supreme Court’s ruling on the most important part of the unclear issue of state law can be predicted with substantial confidence. This is addressed in the next section of this order.
The Secretary also invokes other abstention doctrines, but they are inapplicable based on these same two circumstances and for additional reasons. A preliminary injunction of proper scope will not interfere with a complex state regulatory scheme of the kind that sometimes makes abstention proper under Burford v. Sun Oil Co., 319 U.S. 315 (1943). The proceeding that is pending in the Florida Supreme Court was initiated by the Governor’s request for an advisory opinion on state-law issues, but the Governor explicitly asked the court not to
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address the federal constitutional issues pending in this court. See ECF No. 148-13 at 4-5. Because no proceeding is pending in state court that will address the constitutional issues in these consolidated cases, and for other reasons as well, abstention is not warranted under Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976). Finally, this case does not involve eminent domain, as did Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25 (1959), nor any similar prerogative of the sovereign.
For all these reasons, this order denies the Secretary’s motion to abstain. V. Does Amendment 4 Require Payment of Financial Obligations? The Florida Supreme Court has said that construction of a voter-initiated constitutional amendment properly begins with the provision’s text and takes into account the intent of both the framers and the voters. See Zingale v. Powell, 885 So. 2d 277, 282 (Fla. 2004). A court properly follows “principles parallel to those of statutory interpretation.” Id. Amendment 4 automatically restores voting rights “upon completion of all terms of sentence including parole or probation.” As the Secretary emphatically notes, “all” means “all.” But the question is not whether “all” means “all”; it obviously does. The question is all of what. This order divides the discussion of this issue into four parts: (a) fines and restitution; (b) other financial obligations
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imposed at the time of sentencing; (c) amounts converted to civil liens; and (d) the
bottom-line treatment of these issues for purposes of this order.
A. Fines and Restitution Fines and restitution imposed at the time of sentencing—announced in open court or included in the sentencing document—are part of the sentence. On one reading, provisions that are part of a sentence are “terms” of the sentence. This is consistent with one dictionary definition, under which “terms” are “provisions that determine the nature and scope of an agreement.” “Term,” Merriam-Webster’s Online Dictionary 2019, available at https://www.merriamwebster.com/dictionary/term. 3 A sentence is not an agreement, but close enough. Other dictionaries probably articulate the same concept in ways more clearly applicable to a sentence. It is no stretch to suggest that the “terms” of a sentence
are everything in the sentence, including fines and restitution. On the other side, it is at least curious that Amendment 4 says “including
parole or probation” but not “including fines and restitution.” At least literally,
3 The United States Supreme Court, the Eleventh Circuit, and the Florida Supreme Court have all cited Merriam-Webster’s in construing texts. See, e.g., Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545, 553-54 (2014); Burlington N. & Santa Fe Ry. Co. v. United States, 556 U.S. 599, 611 (2009); United States v. Undetermined Quantities of All Articles of Finished & In-Process Foods, 936 F.3d 1341, 1346 (11th Cir. 2019); United States v. Zuniga-Arteaga, 681 F.3d 1220, 1224 (11th Cir. 2012); Arriaga v. Fla. Pac. Farms, LLC, 305 F.3d 1228, 1242 (11th Cir. 2002); Raymond James Fin. Servs., Inc. v. Phillips, 126 So. 3d 186, 190 n.4 (Fla. 2013).
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“including” means “including but not limited to.” See “Include,” Black’s Law Dictionary (11th ed. 2019). The word is usually, but not always, construed this way. See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 132-33 (2012). Under the negative-implication canon of construction, listing one thing but not others sometimes suggests the others are not included. See id. at 107-11. There is even a Latin phrase for this, confirming it must be true, at least sometimes: “expressio unius est exclusio alterius.” See id. at 107-11, 428.
In any event, another dictionary definition of “term” is “a limited or definite extent of time.” “Term,” Merriam-Webster’s Online Dictionary 2019, available at https://www.merriam-webster.com/dictionary/term. A period of imprisonment is a “term,” as is a period on parole or probation. But this meaning of “term” has no application to financial obligations imposed as part of a sentence. So “all terms of sentence including probation or parole” could mean only all “terms”—periods of time—in prison or under supervision. Not financial obligations.
This reading also fits more comfortably with Amendment 4’s reference to “completion” of the terms of sentence. It is commonplace to say a prison term has been completed. So also a term of supervision. A fine or restitution, in contrast, may be paid, and one could say, rather inartfully, that a payment has been completed. But without a reference to payment, it is at least somewhat awkward to say a fine or other financial obligation has been “completed.” Nobody would say,
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“I completed my student loan” or “completed my car loan” or “completed my credit-card account.”
In sum, Amendment 4’s language, standing alone, could be read to include, or not to include, fines and restitution. This brings us to considerations beyond just the amendment’s language.
Under Florida law, a voter-initiated constitutional amendment may go on the ballot only if its language and its ballot summary are approved in advance by the Florida Supreme Court. See Fla. Const. art. IV § 10; see id. art. X, § 3(b)(10). When the proponents of Amendment 4 sought the Florida Supreme Court’s approval to place the amendment on the ballot, the issues of fines and restitution were explicitly addressed.
The only speaker at the oral argument in the Florida Supreme Court was the proponents’—that is, the framers’—attorney. He said the critical language “all terms of sentence” means “anything that a judge puts into a sentence.” ECF No. 148-1 at 9. A justice asked, “So it would include the full payment of any fines”? Id. The attorney responded, “Yes, sir.” Id. Another justice asked, “Would it also include restitution when it was ordered to the victim . . . as part of the sentence?” Id. at 17-18. The attorney answered, “Yes.” Id. Yet another justice suggested this might “actually help the State” by providing an incentive for payment. Id. at 19.
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The intended meaning of Amendment 4 cannot be determined based only on what the proponents’ attorney said at oral argument or what three justices thought at that time. A critical question—even more important—is what a reasonable voter would have understood the amendment’s language to mean. But the Florida Supreme Court has said that in construing amendments, the framers’ views are relevant. Zingale, 885 So. 2d at 282-83; see also Gray v. Bryant, 125 So. 2d 846, 851 (Fla. 1960). The court will surely take into account the proponents’ assertions at oral argument. The proponents of an amendment ought not be able to tell the Florida Supreme Court that the amendment means one thing but later, after adoption, assert the amendment means something else.
In any event, voters might well have understood the amendment to require felons to meet all components of their sentence—whatever they might be—before automatically becoming eligible to vote. The plaintiffs say the voters’ intent was to restore the right of felons to vote and that all doubts should be resolved accordingly—that is, in favor of otherwise-disenfranchised felons. But that goes too far. The theory of most voters might well have been that felons should be allowed to vote only when their punishment was complete—when they “paid their debt to society.”
If, based on this theory, a felon must serve a prison sentence or finish a term of supervision as a condition of voting, it is difficult to argue that a felon who is
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able to pay a fine should not be required to do so, also as a condition of voting. Fines are imposed as punishment, sometimes instead of, sometimes in addition to, imprisonment. Inability to pay raises different issues, not only of policy but of constitutional law, but those are issues bearing only a little, if at all, on the proper interpretation of “all terms of sentence.” If that phrase is read to exclude fines, it will mean that a felon who is able to pay a fine but chooses not to do so will nonetheless automatically become eligible to vote. There is no evidence that this is what Florida voters intended.
The analysis of voters’ intent for restitution is similar, though on at least one view, restitution is imposed not so much as punishment as to provide just compensation to a victim. If voters intended “all terms of sentence” to mean punishment, restitution is not as clearly covered as fines. But voters might still have deemed restitution part of a felon’s “debt to society.”
In arguing that payment of financial obligations is not required, the plaintiffs note the widely publicized assertion that if adopted, Amendment 4 would immediately make roughly 1.4 million felons eligible to vote. Indeed, the state officials responsible for estimating in advance the likely financial impact of Amendment 4 used a similar figure, and the proponents’ attorney referred to it during oral argument in the Florida Supreme Court. Citing the financial-impact analysis, the attorney said the experience in other states has been that the
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registration rate for felons who become eligible to vote is roughly 20% and that, for Amendment 4, this would mean about 270,000 people.4 Curiously, the attorney said this would put the total number of eligible felons at 700,000, but better arithmetic—270,000 divided by .20—would put the eligible number at 1,350,000, in line with the widely publicized figure of roughly 1.4 million.
As it turns out, many of Florida’s otherwise-eligible felons have unpaid fines and restitution and many more owe fees of various kinds that are addressed in the next subsection of this order. The record does not show the percentage of otherwise-eligible felons who have unpaid fines and restitution, but the record shows that roughly 80% of otherwise-eligible felons have unpaid fines, restitution, or other financial obligations imposed at the time of sentencing. See Smith Report, ECF No. 153-1 at 4; see also Hr’g Tr., ECF No. 204 at 49. If payment of all these obligations is a prerequisite to eligibility, the estimate of the number of felons who would become eligible under Amendment 4 was wildly inaccurate.
Even so, this provides only slight support for the plaintiffs’ assertion that Amendment 4 was not intended to require payment of these obligations. Recall that a critical question is the understanding of the voters who adopted the amendment. Surely many of those voters, probably most, were unaware of the 1.4 million estimate. And even voters who were aware of the 1.4 million estimate usually had
4 ECF No. 148-1 at 9.
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no reason to know how it was calculated—no reason to believe the estimate included felons with unpaid financial obligations. More important than the estimated number of affected felons was the assertion, readily derived from the text of the amendment, that felons would become eligible only after completing “all terms of sentence.” The estimated raw number says little if anything about what the voters understood this language to mean.
Indeed, the estimate does not even show what those who came up with the estimate or embraced it understood the amendment to mean. The state’s financial analysts may have lacked familiarity with the state’s criminal-justice system and may have failed even to spot the issue. Those who embraced the estimate likely had no idea how many felons would be affected by a requirement to pay fines and restitution, let alone by a requirement to pay other financial obligations. The plaintiffs have tendered no evidence that anyone who made or embraced the estimate actually considered this issue, knew that a substantial number of Florida sentences include fines and restitution, knew that all Florida sentences include other financial obligations, or knew that most felons who have finished their time in prison and under supervision have not paid all these financial obligations. The erroneous estimate of the effect of the amendment, even if widely accepted, does not show that most voters thought the right to vote would be restored to those whose sentences included unpaid fines or restitution.
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B. Other Financial Obligations Quite apart from a sentencing judge’s decision about the proper punishment for a given felony—punishment that may include a fine—Florida law requires the judge to impose fees whose primary purpose is to raise revenue, sometimes for a specific purpose. The fees often bear no apparent relationship to culpability. The fees for a violent felony that produces substantial bodily injuries may be the same as the fees for a comparatively minor, nonviolent felony, including, for example, shoplifting items of sufficient value.5 The fees are ordinarily the same for a defendant who is convicted by a jury or pleads guilty, on the one hand, as for a defendant who denies guilt and pleads no contest, on the other hand.6 The fees are ordinarily the same whether a defendant is adjudicated guilty or adjudication is withheld.7
5 See Fla. Stat. § 938.05(1); see also ECF No. 152-10 at 15; ECF No. 152-20 at 14.
6 See Fla. Stat. § 938.05(1). 7 See, e.g., Fla. Stat. § 938.29(1)(a) (imposing fees on a “convicted person” and stating that, for this purpose, convicted means “a determination of guilty, or of violation of probation or community control, which is result of a plea, trial, of violation proceeding, regardless of whether adjudication is withheld”).
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The fees include $50 for applying for representation by a public defender;8 $100 for actual representation by a public defender;9 at least $100 for the state attorney’s “costs” (though these are not court costs of the kind ordinarily taxed in favor of a prevailing party in litigation);10 $225 as “additional court costs” (though again unrelated to court costs of the traditional kind), of which $25 is remitted to the Department of Revenue for deposit in the General Revenue Fund; and additional amounts whose ostensible purpose, other than to raise revenue, is not always clear.11
A state of course must provide an attorney for an indigent defendant. See Gideon v. Wainwright, 372 U.S. 335 (1963). Even so, a state may be able to require a convicted defendant to pay the state back for the expense of providing the attorney. See, e.g., James v. Strange, 407 U.S. 128 (1972). It is a stretch, though, to say that when the voters adopted Amendment 4 restoring the right of felons to vote upon “completion of all terms of sentence,” the intent was to condition the right to
8 See Fla. Stat. §§ 938.29(1), 27.52(1)(b); see also ECF No. 152-10 at 15; ECF No. 152-20 at 12.
9 See Fla. Stat. § 938.29(1); see also ECF No. 152-10 at 15. 10 See Fla. Stat. § 938.27(8); see also ECF No. 152-10 at 15. 11 See Fla. Stat. § 938.05; see also ECF No. 152-10 at 15; ECF No. 152-20 at 14.
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vote on the payment of fees for representation by a public defender. And the same could be said of some if not all of the other fees.
At the very least, the analysis of whether Amendment 4 conditions restoration of the right to vote on the payment of financial obligations may be different for fines and restitution, on the one hand, and for the various fees imposed without regard to culpability, on the other hand. The former were explicitly discussed at the oral argument in the Florida Supreme Court; the latter were not. But whatever might be said of Amendment 4, it apparently is clear that SB7066 conditions the right to vote on the payment of the fees, so long as they are included in the sentencing document, as they usually are.12
C. Conversion to Civil Liens Florida law allows a judge to convert a financial obligation imposed at the time of sentencing to a civil lien. See Fla. Stat. § 938.30(6)-(9). Judges often do this when they know the defendant is unable to pay the amount being assessed. See Hr’g Tr., ECF No. 204 at 94; Timmann Dep., ECF No. 194-1 at 31; Haughwout Decl., ECF No. 167-103 at 5-6; ECF No. 167-20 at 48. Conversion to a civil lien takes the obligation out of the criminal-justice system and allows collection through the same civil processes available to ordinary creditors.
12 See, e.g., ECF No. 152-10 at 15.
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The analysis of whether Amendment 4 conditions restoration of the right to vote on the payment of financial obligations may be different for amounts that have or have not been converted to civil liens. The oral argument at the Florida Supreme Court did not explicitly address this issue. But again, whatever might be said of Amendment 4, it is clear that SB7066 conditions the right to vote on the payment even of amounts that have been converted to civil liens. See Fla. Stat. §98.0751(2)(a).
D. The Treatment of These Issues for Purposes of This Order On this issue of whether Amendment 4 requires payment of financial obligations imposed at the time of sentencing—and if so, which financial obligations—the last word will belong to the Florida Supreme Court. This order assumes, subject to revision as the litigation progresses, that “all terms of sentence” includes fines and restitution, fees even when unrelated to culpability, and amounts even when converted to civil liens, so long as the amounts are included in the sentencing document. This is what SB7066 provides. The Florida Supreme Court’s anticipated ruling on fines and restitution can be predicted with substantial confidence. The ruling on the other amounts cannot be predicted as confidently but will not affect the ruling on the preliminaryinjunction motion of these individual plaintiffs.
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VI. The Standards Governing Preliminary Injunctions This brings us to the plaintiffs’ constitutional claims—the claims on which they base their motion for a preliminary injunction. As a prerequisite to a preliminary injunction, a plaintiff must establish a substantial likelihood of success on the merits, that the plaintiff will suffer irreparable injury if the injunction does not issue, that the threatened injury outweighs whatever damage the proposed injunction may cause a defendant, and that the injunction will not be adverse to the public interest. See, e.g., Charles H. Wesley Educ. Found., Inc. v. Cox, 408 F.3d 1349, 1354 (11th Cir. 2005); Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (en banc). The burden of proof is on the plaintiff. VII. Reenfranchisement Must Comply with the Constitution When a state decides to restore the right to vote to some felons but not others, the state must comply with the United States Constitution, including the First, Fourteenth, and Twenty-Fourth Amendments. It is no answer to say, as the Secretary does, that a felon has no right to vote at all, so a state can restore the right to vote or not in the state’s unfettered discretion. Both the Supreme Court and the en banc Eleventh Circuit have squarely rejected that assertion. In Richardson v. Ramirez, 418 U.S. 24 (1974), the plaintiffs were felons who had completed their terms in prison and on parole but who, under California
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law, were still denied the right to vote. The Supreme Court rejected their claim that this, without more, violated the Equal Protection Clause.
Even so, the Court did not say that because a state could choose to deny all felons the right to vote and to restore none of them, the state’s decision to restore the vote to some felons but not others was beyond the reach of the Constitution. Quite the contrary. The Court remanded the case to the California Supreme Court to address the plaintiffs’ separate contention that California had not treated all felons uniformly and that the disparate treatment violated the Equal Protection Clause. Id. at 56. The remand was appropriate because when a state allows some felons to vote but not others, the disparate treatment must survive review under the Equal Protection Clause. The same is true here.
Similarly, in Johnson v. Governor of Florida, 405 F.3d 1214 (11th Cir. 2005) (en banc), the court upheld Florida’s decision to disenfranchise all felons, subject to restoration of the right to vote by the Florida Executive Clemency Board. Again, though, the court did not say that a state’s decision to restore the vote to some felons but not others was beyond constitutional review. Instead, citing an equal-protection case, the court made clear that even in restoring the right of felons to vote, a state must comply with other constitutional provisions. See id., 405 F.3d at 1216-17 n.1 (citing Harper v. Va. State Bd. of Elections, 383 U.S. 663, 668 (1966)).
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An earlier decision to the same effect is Shepherd v. Trevino, 575 F.2d 1110 (5th Cir. 1978). There the court said a state’s power to disenfranchise felons does not allow the state to restore voting rights only to whites or otherwise to “make a completely arbitrary distinction between groups of felons with respect to the right to vote.” Id. at 1114. As a decision of the Old Fifth Circuit, Shepherd remains binding in the Eleventh. See Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir.1981) (en banc).
Other courts, too, have recognized that provisions restoring the voting rights of felons are subject to constitutional review. See, e.g., Harvey v. Brewer, 605 F.3d 1067, 1079 (9th Cir. 2010) (O’Connor, J.) (holding the Equal Protection Clause applicable to Arizona’s felon-restoration statute but rejecting the plaintiffs’ claim on the merits; noting that a state could not restore the vote only to felons of a specific race or only to those over six feet tall); Johnson v. Bredesen, 624 F.3d 742, 746-50 (6th Cir. 2010) (holding the Equal Protection Clause applicable to Tennessee’s felon-restoration statute but rejecting the plaintiffs’ claim on the merits); Owens v. Barnes, 711 F.2d 25, 26-27 (3d Cir. 1983) (holding the Equal Protection Clause applicable to Pennsylvania’s felon-restoration statute but rejecting the plaintiff’s claim on the merits).
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VIII. The Constitution Allows a State to Condition Reenfranchisement on Payment of At Least Some Financial Obligations
Leaving aside for the moment claims based on inability to pay or the Twenty-Fourth Amendment, it is clear that a state can deny restoration of a felon’s right to vote based on failure to pay financial obligations included in a sentence. This is so regardless of the level of scrutiny deemed applicable—whether rationalbasis scrutiny, as the Secretary contends, or strict scrutiny tempered by the holding in Richardson that the Fourteenth Amendment affirmatively allows felon disenfranchisement.
Harvey applied rational-basis scrutiny and upheld the Arizona requirement to pay fines and restitution. No plaintiff claimed indigency, so the court did not address that issue or the level of scrutiny it would trigger. See Harvey, 605 F.3d at 1080.) Johnson v. Bredesen applied rational-basis scrutiny and upheld a requirement to pay restitution and unrelated child-support obligations, even as applied to felons unable to pay. Madison v. State, 163 P.3d 757 (Wash. 2007), with no majority opinion, upheld a requirement to pay fines, costs, and restitution, even as applied to felons unable to pay.
As an original matter, one might take issue with this treatment of a felon’s right to vote. The Declaration of Independence holds it “self-evident” that men— today we would add women—are endowed with unalienable rights, including life, liberty, and the pursuit of happiness. The Declaration says that to secure these
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rights, governments are instituted, “deriving their just powers from the consent of the governed.” Declaration of Independence para. 2 (U.S. 1776). Felons, no less than others, are “governed.”
This does not, however, give felons the right to vote. The Declaration of Independence is aspirational, not the law, and the majority of the governed, at least in Florida, have chosen to forgo the consent of felons, pending only the restoration of their right to vote as provided by law. Richardson and Johnson v. Governor, if not the Declaration of Independence, allow the State to take this approach.
So a state can properly disenfranchise felons, even permanently, and if the state decides to restore the right to vote to anyone, the state can exercise discretion in choosing among the candidates. Consistent with this considerable leeway, a state can rationally choose to take into account not only whether a felon has served any term of imprisonment and supervision but also whether the felon has paid any financial obligation included in the sentence. A state can rationally decide that the right to vote should not be restored to a felon who is able to pay but chooses not to do so. Indeed, a state’s decision not to restore the vote to such a person survives even strict scrutiny, so long as it is recognized, as Richardson requires, that the Constitution affirmatively allows disenfranchisement.
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IX. Johnson v. Governor: The Right to Vote Cannot Be Made to Depend on an Individual’s Financial Resources
The analysis to this point does not, however, resolve the claim based on inability to pay. The starting point of the analysis of this issue, and pretty much the ending point, is a succinct statement of the en banc Eleventh Circuit addressing this very issue: whether the State of Florida can deny restoration of a felon’s right to vote based on failure to pay an amount the felon is unable to pay. In a case in which the financial obligation at issue was restitution, the court said:
Access to the franchise cannot be made to depend on an individual’s financial resources. Under Florida’s Rules of Executive Clemency, however, the right to vote can still be granted to felons who cannot afford to pay restitution. . . . Because Florida does not deny access to the restoration of the franchise based on ability to pay, we affirm the district court’s grant of summary judgment in favor of the defendants on these claims. Johnson v. Governor of Florida, 405 F.3d 1214, 1216-17 n.1 (11th Cir. 2005) (en banc) (emphasis added; citation omitted to Harper v. Va. State Bd. of Elections, 383 U.S. 663, 668 (1966)). Harper held that Virginia’s $1.50 poll tax for state elections violated the Equal Protection Clause. The Johnson footnote is a binding, controlling statement of the en banc Eleventh Circuit addressing not an individual’s right to vote in the first instance but the very issue in the case at bar: restoration of a felon’s right to vote. Johnson establishes two things.
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First, the State of Florida cannot deny restoration of a felon’s right to vote solely because the felon does not have the financial resources necessary to pay restitution. And because, for this purpose, there is no reason to treat restitution differently from other financial obligations included in a sentence, Florida also cannot deny restoration of a felon’s right to vote solely because the felon does not have the financial resources to pay the other financial obligations. The court summed it up succinctly: “Access to the franchise cannot be made to depend on an individual’s financial resources.” Johnson, 405 F.3d at 1216-17 n.1 (emphasis added).
Second, the State meets its constitutional obligation—that is, its obligation not to deny restoration of the right to vote based on lack of financial resources—if the State allows the lack of financial resources to be addressed as part of the same process through which other felons may obtain restoration of the right to vote. Further, though not addressed in Johnson itself, a reasonable corollary is that the State can satisfy its duty by another method of its choosing, so long as the method is equally accessible to the felon or otherwise comports with constitutional requirements.
Before going on to address further support for, and the import of, these two Johnson holdings, a word is in order on why Johnson is binding, that is, why it must be followed in this court. The Eleventh Circuit has a longstanding,
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unwavering principle: the law of the circuit as established in the first case to address an issue must be followed until altered by the Eleventh Circuit en banc or the United States Supreme Court. See, e.g., United States v. Gillis, 938 F.3d 1181, 1198 (11th Cir. Sept. 13, 2019); United States v. Vega-Castillo, 540 F.3d 1235, 1236 (11th Cir. 2008). District judges in the circuit must follow course. That an issue is resolved in a footnote rather than in the text of an opinion makes no difference.
To be sure, dictum—a statement unnecessary to the decision in a case—is not binding. See, e.g., United States v. Birge, 830 F.3d 1229, 1231 (11th Cir. 2016) (stating that the requirement to follow prior decisions “applies only to holdings, not dicta”); McDonald’s Corp. v. Robertson, 147 F.3d 1301, 1315 (11th Cir. 1998) (Carnes, J., concurring) (“[D]icta in our opinions is not binding on anyone for any purpose.”). But the Johnson footnote is not dictum. The footnote explains precisely why the court reached its decision on one of the issues in the case. The explanation was this: a state cannot refuse to restore a felon’s right to vote because of inability to pay restitution, but the plaintiffs did not establish a violation of that principle. Their claim failed “because”—as clear a statement as one can have that this was the basis for the decision—state law allowed restoration of a felon’s right to vote through the Executive Clemency Board without requiring payment of amounts the felon could not pay.
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As a binding Eleventh Circuit holding, the Johnson footnote would be controlling even in the absence of Supreme Court decisions supporting the result. But Johnson does not lack Supreme Court support; it is consistent with a series of Supreme Court decisions.
In one, M.L.B. v. S.L.J., 519 U.S. 102 (1996), the Court noted the “general rule” that equal-protection claims based on indigency are subject to only rationalbasis review. This is the same general rule on which the Secretary places heavy reliance here. But in M.L.B. the Court said there are two exceptions to the general rule. Id. at 123-24.
The first exception, squarely applicable here, is for claims related to voting. Id. at 124. The Court said, “The basic right to participate in political processes as voters and candidates cannot be limited to those who can pay for a license.” Id. at 124. The Court cited a long line of cases supporting this principle. Id. at 124 n.14. In asserting that the Amendment 4 and SB7066 requirement for payment of financial obligations is subject only to highly deferential rational-basis scrutiny, the Secretary ignores this exception.
The second exception is for claims related to criminal or quasi-criminal processes. Cases applying this exception hold that punishment cannot be increased because of a defendant’s inability to pay. See, e.g., Bearden v. Georgia, 461 U.S. 660 (1983) (holding that probation cannot be revoked based on failure to pay an
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amount the defendant is financially unable to pay). Disenfranchisement of felons has a regulatory component, see, e.g., Trop v. Dulles, 356 U.S. 86, 96-97 (1958), and when so viewed, disenfranchisement is subject only to the first M.L.B. exception, not this second one. But when the purpose of disenfranchisement is to punish, this second exception applies. If, after adoption of Amendment 4, the purported justification for requiring payment of financial obligations is only to ensure that felons pay their “debt to society”—that is, that they are fully punished—this second M.L.B. exception is fully applicable.
Another case applying these principles is Harper v. Virginia State Board of Elections, 383 U.S. 663 (1966), which was cited in both M.L.B. and the Johnson footnote. In Harper the Supreme Court said “[v]oter qualification has no relation to wealth.” Id. at 666. The Court continued, “[w]ealth, like race, creed, or color, is not germane to one’s ability to participate intelligently in the electoral process.” Id. at 668. And the Court added, “[t]o introduce wealth or payment of a fee as a measure of a voter’s qualifications is to introduce a capricious or irrelevant factor.” Id. The Secretary says none of this is true when the voter is a felon, but the Secretary does not explain how a felon’s wealth is more relevant than any other voter’s. And Johnson plainly rejected the Secretary’s proposed distinction.
The error in the Secretary’s position can be illustrated with a hypothetical. Suppose a state adopted a statute automatically restoring the right to vote for felons
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with a net worth of $100,000 or more but not for other felons. Would anyone contend this was constitutional? One hopes not. An official who adopts a constitutional theory that would approve such a statute needs a new constitutional theory.
The difference between the hypothetical, on the one hand, and Amendment 4 and SB7066, on the other hand, is that the financial condition in the hypothetical is unrelated to a felon’s sentence, while the financial obligations at issue under Amendment 4 and SB7066 are part of a felon’s sentence. If writing on a clean slate, one could reasonably argue both sides of the question whether this difference changes the result. But the slate is not clean. The Johnson footnote addressed a financial obligation that was part of the sentence and nonetheless concluded that restoration of a felon’s right to vote could not constitutionally be made to depend on ability to pay the obligation.
In asserting that the State can properly condition voting on payment of an amount a felon cannot afford to pay, the Secretary makes no effort to come to grips with Johnson. Instead, the Secretary cites the Ninth Circuit’s decision in Harvey v. Brewer, 605 F.3d 1067 (9th Cir. 2010), the Sixth Circuit’s decision in Johnson v. Bredesen, 624 F.3d 742 (6th Cir. 2010), and the Washington Supreme Court’s decision in Madison v. State, 163 P.3d 757 (Wash. 2007).
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These out-of-circuit decisions do not carry the day for the Secretary. The Harvey plaintiffs did not allege inability to pay, so the court explicitly declined to address the issue. Johnson v. Bredesen was a 2–1 decision, and the dissent had the better of it. Madison was again a split decision, and again the dissent had the better of it. More importantly, a district court in the Eleventh Circuit cannot decline to follow a binding circuit precedent just because other courts have taken a different view. Johnson is controlling.
X. Johnson v. Governor: The Scope of the Remedy Johnson does not mean, though, that the individual plaintiffs are entitled to a preliminary injunction requiring the Secretary and affected Supervisor to allow them to vote. Johnson requires only that the State put in place an appropriate procedure through which an individual plaintiff may register and vote if otherwise qualified and genuinely unable to pay outstanding financial obligations. This issue was addressed during closing argument following the evidentiary hearing. Asked whether, based on Johnson, it would be sufficient for the State to allow the plaintiffs to establish their inability to pay in a proceeding before the Executive Clemency Board, the plaintiffs asserted they cannot properly be forced into a different track than available to all other felons. Hr’g Tr., ECF No. 205 at 23-25. At first blush, the contention makes sense. See, e.g., Harman, 380 U.S. at
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542 (holding it unconstitutional to require indigent voters to file certificates of residency not required of voters who paid a $1.50 poll tax).
The flaw in the contention is this. As set out above, the State can condition restoration of a felon’s right to vote on payment of fines and restitution the felon is able to pay. When a felon claims inability to pay, the State need not just take the felon’s word for it. The State may properly place the burden of establishing inability to pay on the felon and, to that end, may put in place an appropriate administrative process. That this places a greater burden on the felon claiming inability to pay than on felons with no unpaid obligations is unavoidable and not improper.
The process available to the Johnson plaintiffs was an application to the Executive Clemency Board. The individual plaintiffs in the case at bar also have the right to apply to the Executive Clemency Board. If the Board operates at a pace that makes it an available remedy in fact, the State can satisfy its Johnson obligation through the Board, so long as the Board complies with Johnson. This will mean restoring the right to vote of any felon who applies and whose right to vote would be automatically restored under Amendment 4 and SB7066 but for financial obligations the applicant is genuinely unable to pay.
The Executive Clemency Board is not, however, the forum in which other felons will claim their right to vote under Amendment 4 and SB7066. Just as the
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State could satisfy its obligation to the indigent Johnson plaintiffs by making available to them the same process available to others, so also the State may satisfy its obligation to the indigent plaintiffs in the case at bar by making available to them the same process available to others whose right to vote has been restored under Amendment 4 and SB7066. That process consists of up to six steps.
First, a felon, like any other prospective voter, submits an application to the appropriate county’s Supervisor of Elections.13 Second, if the application is sufficient on its face, the Supervisor puts the applicant on the roll of qualified voters and forwards the application to the Secretary of State, who checks for disqualifying felony convictions.14 Third, if “credible and reliable” information indicates the applicant has a disqualifying conviction, the Secretary so notifies the Supervisor.15 Fourth, if the Supervisor accepts the Secretary’s conclusion after any further investigation the Supervisor chooses to undertake, the Secretary gives the applicant notice and an opportunity to be heard.16 Fifth, if the applicant fails to establish eligibility to vote, the Supervisor removes the applicant from the roll of
13 Matthews Decl., ECF No. 148-16 at 3. 14 Id. at 5. 15 Id. at 6; see also Fla. Stat. § 98.075(5). 16 Matthews Decl., ECF No. 148-16 at 8, 11; see also Fla. Stat. § 98.075(7).
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qualified voters.17 Sixth, the applicant may challenge the Supervisor’s decision through an action in state circuit court, where evidence may be presented and the decision will be made de novo, without deference to the Supervisor.18
Consistently with Johnson, the State could meet its obligation not to deny restoration of the right to vote based on lack of financial resources by requiring the Secretary to determine at step three of the process, or by allowing an otherwisequalified felon to establish at step four, that the reason for failing to pay any outstanding financial obligation was inability to pay. That this might require a hearing does not make it unconstitutional. See Johnson, 405 F.3d at 1217 n.1 (“The requirement of a hearing is insufficient to support the plaintiffs’ claim.”). Or the State could meet its obligation by a constitutionally acceptable alternative method. What the State cannot do, under Johnson, is deny the right to vote to a felon who would be allowed to vote but for the failure to pay amounts the felon has been genuinely unable to pay.
XI. The Community-Service Option Does Not Save an Unconstitutional Requirement to Pay
SB7066 includes a provision allowing a court to convert a financial obligation to community service. A felon may satisfy the otherwise-applicable
17 Matthews Decl., ECF No. 148-16 at 11; see also Fla. Stat. § 98.075(7). 18 See Fla. Stat. §§ 98.075(7), 98.0755.
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financial obligation by performing the proper amount of community service. The Secretary says this means restoration of the right to vote is not unconstitutionally conditioned on financial resources.
The Secretary’s assertion fails for three reasons. First, the community-service option applies only to Florida convictions, not out-of-state or federal convictions. And the option applies only when a judge chooses to employ it. For many felons, including at least some of the individual plaintiffs, the option is not available at all. Second, even for felons convicted in a Florida state court and for whom the judge chooses to employ the community-service option, the prospect of satisfying financial obligations in this way is often wholly illusory. Community service is usually credited at low hourly rates.19 Some plaintiffs would miss many votes before they could satisfy their financial obligations in this way, even if allowed to do so, and some plaintiffs would never be able to satisfy their obligations. In the meantime, the right to vote would be lost based solely on lack of financial resources. Third, separate and apart from the hourly rate and the near certainty that a plaintiff would miss votes even if allowed to use the community-service option, the
19 Hr’g Tr., ECF No. 204 at 94, Timmann Dep., ECF No. 194-1 at 63, Haughwout Decl., ECF No. 152-20 at 8.
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option does not eliminate the disparate treatment of otherwise-qualified felons based on financial resources. Those with financial resources would still be able to vote simply by paying their financial obligations, while felons without the same resources would not be able to do so. The option thus does not cure the underlying problem: “Access to the franchise cannot be made to depend on an individual’s financial resources.” Johnson, 405 F.3d at 1216-17 n.1 (emphasis added).
XII. Twenty-Fourth Amendment The Twenty-Fourth Amendment to the United States Constitution provides 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.” The State says the amendment does not apply to felons because they have no right to vote at all, but that makes no sense. A law allowing felons to vote in federal elections but only upon payment of a $10 poll tax would obviously violate the Twenty-Fourth Amendment. Florida has not, of course, explicitly imposed a poll tax. The financial obligations at issue were imposed as part of a criminal sentence. The obligations existed separate and apart from, and for reasons unrelated to, voting. Every court that has considered the issue has concluded that such a preexisting obligation is not a poll tax. See, e.g., Johnson v. Bredesen, 624 F.3d 742, 751 (6th Cir. 2010); Harvey v. Brewer, 605 F.3d 1067, 1080 (9th Cir. 2010); Thompson v. Alabama,
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293 F. Supp. 3d 1313, 1332-33 (M.D. Ala. 2017); Coronado v. Napolitano, No. cv-07-1089-PHX-SMM, 2008 WL 191987 at *4-5 (D. Ariz. Jan. 22, 2008).
This does not, however, end the Twenty-Fourth Amendment analysis. The amendment applies not just to any poll tax but also to any “other tax.” As the Secretary emphasizes in addressing Florida’s Amendment 4, “words matter.” The same principle applies to the Twenty-Fourth Amendment. The words “any . . . other tax” are right there in the amendment.
There is no defensible way to read “any other tax” to mean only any tax imposed at the time of voting or only any tax imposed explicitly for the purpose of interfering with the right to vote. “Any other tax” means “any other tax.” A law prohibiting citizens from voting while in arrears on their federal income taxes or state sales or use taxes would plainly violate the Twenty-Fourth Amendment. A state could not require a voter to affirm, on the voter-registration application or when casting a ballot, that the voter was current on all the voter’s taxes. The very idea is repugnant.
The only real issue is whether the financial obligations now at issue are taxes. As the Supreme Court has made clear time and again, whether an exaction is a “tax” for constitutional purposes is determined using a “functional approach,” not simply by consulting the label given the exaction by the legislature that imposed it. See, e.g., Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 564-66 (2012)
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(collecting cases). The Supreme Court has said the “standard definition of a tax” is an “enforced contribution to provide for the support of the government.” United States v. State Tax Comm’n of Miss., 421 U.S. 599, 606 (1975) (quoting United States v. La Franca, 282 U.S. 568, 572 (1931)). More recently, the Court has said the “essential feature of any tax” is that “[i]t produces at least some revenue for the Government.” Nat’l Fed’n, 567 U.S. at 564 (citing United States v. Kahriger, 345 U.S. 22, 28 n.4 (1953)).
Some of the financial obligations at issue plainly are not taxes. Criminal fines generate revenue for the government that imposes them, but the primary purpose is to punish the offender, not to raise revenue. Fines are criminal penalties; they are not taxes. Similarly, restitution payable to the private victim of a crime— not to a government—lacks the essential feature of a tax; restitution is intended to compensate the victim, not raise revenue for the government. Restitution payable to a victim is not a tax.
The issue is much closer for other amounts routinely assessed against Florida criminal defendants, including not only those who are adjudicated guilty but also those who enter no-contest pleas that resolve their cases without an adjudication of guilt. Florida has chosen to pay for its criminal-justice system in significant measure through such fees. The record establishes that in one county, the fees total at least $698 for every defendant who is represented by a public
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defender and at least $548 for every defendant who is not.20 If, as the Supreme Court has held, a $100 assessment against a person who chooses not to comply with the legal obligation to obtain conforming health insurance is a tax, see National Federation, 567 U.S. at 574, it is far from clear that a $698 or $548 assessment against a person who is charged with but not adjudicated guilty of violating some other legal requirement is not also a tax, at least when, as in Florida, the purpose of the assessment is to raise money for the government. And if a fee assessed against a person who is not adjudicated guilty is a tax, then the same fee, when assessed against a person who is adjudicated guilty, is also a tax.
A definitive ruling on whether the Florida fees are taxes within the meaning of the Twenty-Fourth Amendment need not be made at this time because it will not affect the ruling on the preliminary-injunction motion of these specific plaintiffs.
XIII. Due Process The plaintiffs assert that even if a state can properly condition restoration of a felon’s right to vote on payment of financial obligations included in a sentence, the manner in which the State of Florida proposes to do so violates the Due Process Clause. The argument carries considerable force. Florida’s records of the financial obligations are decentralized, often accessible only with great difficulty, sometimes
20 Haughwout Decl., ECF No. 152-20 at 4 ¶ 6.
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inconsistent, and sometimes missing altogether. This creates administrative difficulties that sometimes are unavoidable.
The plaintiffs say the flaws in Florida’s recordkeeping are especially egregious because a felon who claims a right to vote and turns out to be wrong may face criminal prosecution. A conviction for a false affirmation in connection with voting requires a showing of willfulness, see Florida Statutes § 104.011, and a conviction for illegally voting requires a showing of fraud, see id. § 104.041. At least one Supervisor of Elections and one State Attorney have said they will not pursue criminal charges against a felon who asserts in good faith that the felon has completed all terms of sentence.21 But some supervisors and prosecutors might not be so charitable, and determining whether a felon’s assertion was made in good faith will not always be easy. If Florida does not clean up its records, some genuinely eligible voters may choose to forgo voting rather than risk prosecution.
When a state chooses to restore a felon’s right to vote in defined circumstances—for example, upon completion of all terms of sentence—the felon has a constitutional right to due process on the question of whether the circumstances exist—for example, on whether all terms of sentence have been completed. The contours of the process that is due turn on factors identified in
21 Early Dep., ECF No. 152-52 at 68-70.
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Mathews v. Eldridge, 424 U.S. 319, 335 (1976), and J.R. v. Hansen, 736 F.3d 959, 966 (11th Cir. 2015). For factual disputes, a hearing is often required, and this opinion assumes that in Florida a felon has a constitutional right to a hearing on any factual dispute about whether the felon has completed all terms of sentence as required.
Under current Florida procedure, a felon who asserts eligibility to vote is entitled to a hearing before the Supervisor of Elections. A felon dissatisfied with the Supervisor’s decision may initiate a de novo proceeding in state circuit court, complete with full due process. This is constitutionally sufficient so long as all material factual disputes are in play at the hearing. The Due Process Clause does not preclude the State from placing the burden of going forward at the hearing, and even the burden of proof, on the felon. That carrying the burden will be difficult does not, without more, render this process unconstitutional.
There is no need to decide at this time whether the state can constitutionally refuse to restore the right to vote based on a financial obligation that the state cannot confirm or calculate—an obligation for which essential records are missing—because that is not the circumstance faced by any of these plaintiffs.
Two circumstances do not change the conclusion that the plaintiffs have not established a violation of their right to procedural due process.
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First, there are substantial inconsistencies in the records of the financial obligations owed by some of these plaintiffs. Even so, the amount actually owed is a factual issue that can be sorted out, albeit with some difficulty. This can be done through the hearing process if necessary.
Second, to make it to a hearing that satisfies due process, a felon must be able to apply to register to vote. Prior to the adoption of SB7066, Florida’s standard voter-registration form required an applicant to attest that the applicant had never been convicted of a felony or, if the applicant had been convicted of a felony, the right to vote had been restored.22 This apparently worked without difficulty and, if used now, would allow a felon who asserts a right to vote to submit an application and thus begin the process that, if there is disagreement, eventually leads to a hearing.
But SB7066 scraps the old attestation in favor of three new ones— alternatives to one another—that must be included on the application. These require the applicant to attest that the applicant has never been convicted of a felony, or that the felon’s right to vote has “been restored by the Board of Executive Clemency,” or that the felon’s right to vote has “been restored pursuant
22 See Matthews Decl., ECF No. 148-16 at 2; see also Fla. Stat. § 97.052(2)(t) (2018).
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to s. 4, Art. VI of the State Constitution upon the completion of all terms of my sentence, including parole or probation.” Fla. Stat. § 97.052(2)(t) (2019).
During closing arguments in this case, the Secretary called these required attestations “inartful,” and they surely are.23 But they are worse than that; as the Secretary acknowledged, there are eligible individuals who could not attest to any of the three new statements. Hr’g Tr., ECF No. 205 at 50. The statements do not reach felons whose rights have been restored in other states or through other methods, including executive pardons. See, e.g., Schlenther v. Dep’t of State, Div. of Licensing, 743 So. 2d 536, 537 (Fla. 2d DCA 1998) (“Once another state restores the civil rights of one of its citizens whose rights had been lost because of a conviction in that state, they are restored and the State of Florida has no authority to suspend or restore them at that point.”). If Florida adopts an application form that tracks the statute and does nothing more—as did the initial draft prepared in response to SB706624—the form will not only discourage eligible felons from voting but will make it impossible for some eligible felons even to apply. The Secretary says that as of now, the Supervisors of Elections in all 67 Florida counties are accepting the old form.25
23 Hr’g Tr., ECF No. 205 at 49-50. 24 ECF No. 148-3 at 4. 25 Hr’g Tr., ECF No. 205 at 51.
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In addition, if Florida wishes to address inability to pay through its existing six-step administrative process, see supra at 37-38, rather than in a functioning Executive Clemency Board or federal court, the state may wish to provide a method by which a felon can claim inability to pay on the application form.
SB7066 created a workgroup tasked with addressing these and other difficulties.26 The workgroup may design a system improving accessibility to records, may improve the application form, and may suggest other changes. Before this case goes to trial, the Florida Legislature will meet again and may choose to address the substantial administrative and constitutional issues not resolved by SB7066. The Florida Constitution does not preclude the Legislature from restoring the right to vote beyond the minimum required by Amendment 4—an approach that could minimize, if not eliminate, the administrative and constitutional issues.
In any event, these individual plaintiffs have not yet shown a likelihood of success on the merits of the claim that they, as distinct from other affected felons, will suffer a denial of due process in the absence of an injunction broader than set out in this order. Nor have the organizational plaintiffs made this showing for any individual whose rights they assert.
26 See ECF No. 148-46 at 33-35; see also ECF No. 152-116.
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XIV. Vagueness and the Risk of Prosecution Closely related to the due-process claim is the assertion that SB7066 is unconstitutionally vague. It is not. That a constitutional provision or statute is not clear in all its applications does not, without more, make it impermissibly vague. See, e.g., Grayned v. City of Rockford, 408 U.S. 104, 110-11 (1972) (“Condemned to the use of words, we can never expect mathematical certainty from our language.”). Concerns about ambiguity, about what a provision means, ordinarily can be resolved through judicial construction of the provision. That is true here. The issues that arise when construing Amendment 4 and SB7066 are no more difficult than issues courts resolve every day when construing other provisions. To be sure, when First Amendment protections are involved, vagueness is of heightened concern. See Wollschlaeger v. Governor of Fla., 848 F.3d 1293 (11th Cir. 2017). Even so, the language of Amendment 4 comes nowhere near the point of unconstitutional vagueness. And SB7066, while substantively controversial, is quite clear. The plaintiffs’ real concern is not so much that they don’t know what SB7066 means as that they do. The plaintiffs’ more substantial complaint is not the asserted facial ambiguity of Amendment 4 or SB7066 but what might be termed factual vagueness—the difficulty in determining the financial obligations included in a
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sentence and what portion has been paid. These are matters that can be addressed in the hearing the State makes available. If, as this plays out, the State forces the individual plaintiffs to risk prosecution to get to an appropriate hearing, they may renew their motion for a preliminary injunction.
So far, the plaintiffs have not shown a substantial likelihood of success on any claim that Amendment 4 and SB7066 are unconstitutionally vague either on their face or as applied to these plaintiffs.
XV. Applying the Preliminary-Injunction Standards For the reasons set out in section IX above, the State of Florida cannot deny an individual plaintiff the right to vote just because the plaintiff lacks the financial resources to pay whatever financial obligations Amendment 4 and SB7066 require the plaintiff to pay. “Access to the franchise cannot be made to depend on an individual’s financial resources.” Johnson, 405 F.3d at 1216-17 n.1 (emphasis added). The plaintiffs are likely to prevail on this claim. This does not mean, though, that the plaintiffs are likely to prevail on their claim for an injunction requiring the Secretary and the appropriate Supervisor to register specific individuals and to allow them to vote. The appropriate remedy, at least at this stage of the litigation, is to preliminarily enjoin the defendants from interfering with an appropriate procedure through which the plaintiffs can attempt to establish genuine inability to pay. Johnson requires nothing more.
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The Miami-Dade County Supervisor of Elections asserts that if a preliminary injunction is issued, it should take full account of the distinction between registering to vote and eligibility to vote. The point is well taken. As the Supervisor notes, if a felon applies, is registered, and is not removed from the voting roll, the felon’s eligibility can still be challenged, including by any other voter. See Fla. Stat. § 101.111. If that occurs, the felon may cast a provisional ballot, and the county canvassing board must adjudicate the challenge. See Hr’g Tr., ECF No. 204 at 197-98. This order’s preliminary injunction does not explicitly address any such challenge, but as should be clear from what has been said to this point, an otherwise-qualified felon who establishes genuine inability to pay—either through another process the State makes available or in connection with a challenge—cannot be prevented from casting a ballot and having it counted.
The plaintiffs have easily met the other three prerequisites to a preliminary injunction of the scope set out in this order.
When an eligible citizen misses an opportunity to vote, the opportunity is gone forever; the vote cannot later be cast. So when a state wrongly prevents an eligible citizen from voting, the harm to the citizen is irreparable. Each of these plaintiffs have a constitutional right to vote so long as the state’s only reason for denying the vote is failure to pay an amount the plaintiff is genuinely unable to
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pay. The preliminary injunction is necessary to prevent irreparable harm to any such plaintiff.
The damage the injunction may cause the Secretary and the affected Supervisor, if a plaintiff is wrongly allowed to vote, is not insubstantial. Few if any states disenfranchise as many felons as Florida, but Florida’s choices must be honored, to the extent constitutional. Even so, the State’s interest in preventing votes by ineligible voters is no greater than its interest in allowing votes by eligible voters. If the State puts in place an administrative process through which genuine inability to pay can be promptly addressed, the potential damage to the Secretary or a Supervisor will be minimized. And in any event, any damage that may result from the injunction does not outweigh an eligible plaintiff’s interest in voting.
Finally, the injunction is in the public interest. The public interest lies in resolving this issue correctly and implementing the proper ruling without delay. Complying with the Constitution serves the public interest. Those with a constitutional right to vote should be allowed to vote. The countervailing interests do not tip the balance.
In sum, the plaintiffs are entitled to a preliminary injunction of appropriate scope. Federal Rule of Civil Procedure 65(c) requires a party who obtains a preliminary injunction to “give[] security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been
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wrongfully enjoined.” This order requires the plaintiffs to give security for costs in a modest amount. Any party may move at any time to adjust the amount of security.
XVI. Conclusion For these reasons, IT IS ORDERED: 1. The Secretary’s motion to dismiss or abstain, ECF No. 97, is denied. 2. The plaintiffs’ preliminary-injunction motion, ECF No. 108, is granted in part. A preliminary injunction is entered in favor of the individual plaintiffs as set out below against all defendants other than the Governor and Supervisor of Orange County. 3. The Secretary of State must not take any action that both (a) prevents an individual plaintiff from applying or registering to vote and (b) is based only on failure to pay a financial obligation that the plaintiff asserts the plaintiff is genuinely unable to pay. The plaintiffs to which this paragraph applies are Jeff Gruver, Emory Mitchell, Betty Riddle, Karen Leitch, Keith Ivey, Kristopher Wrench, Raquel Wright, Stephen Phalen, Jermaine Miller, Clifford Tyson, Rosemary McCoy, Sheila Singleton, Bonnie Raysor, Diane Sherrill, Lee Hoffman, Luis Mendez, and Kelvin Jones.
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4. The Secretary of State must not take any action that both (a) prevents an individual plaintiff from voting and (b) is based only on failure to pay a financial obligation that the plaintiff shows the plaintiff is genuinely unable to pay. The plaintiffs to which this paragraph applies are the same as for paragraph 3 above.
5. This injunction does not prevent the Secretary from notifying the appropriate Supervisor of Elections that a plaintiff has an unpaid financial obligation that will make the plaintiff ineligible to vote unless the plaintiff shows that the plaintiff is genuinely unable to pay the financial obligation.
6. The defendant Supervisor of Elections of the county where an individual plaintiff is domiciled must not take any action that both (a) prevents the plaintiff from applying or registering to vote and (b) is based only on failure to pay a financial obligation that the plaintiff asserts the plaintiff is genuinely unable to pay. The Supervisors and individual plaintiffs to which this paragraph applies are the Supervisor of Alachua County for the plaintiffs Jeff Gruver and Kristopher Wrench; the Supervisor of Sarasota County for the plaintiff Betty Riddle; the Supervisor of Miami-Dade for the Plaintiff Karen Leitch; the Supervisor of Duval County for the plaintiffs Keith Ivey, Rosemary McCoy, and Sheila Singleton; the Supervisor of Indian River County for the plaintiff Raquel Wright; the Supervisor of Manatee County for the plaintiff Stephen Phalen; the Supervisor of Leon County for the plaintiff Jermaine Miller; and the Supervisor of Hillsborough
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County for the plaintiffs Clifford Tyson, Lee Hoffman, Luis Mendez, and Kelvin Jones.
7. The Supervisor of Elections of the county where a plaintiff is domiciled must not take any action that both (a) prevents a plaintiff from voting and (b) is based only on failure to pay a financial obligation that the plaintiff shows the plaintiff is genuinely unable to pay. The Supervisors and individual plaintiffs to which this paragraph applies are the same as for paragraph 6 above.
8. This injunction will take effect upon the posting of security in the amount of $100 for costs and damages sustained by a defendant found to have been wrongfully enjoined. Security may be posted by a cash deposit with the Clerk of Court.
9. This injunction binds the defendants and their officers, agents, servants, employees, and attorneys—and others in active concert or participation with any of them—who receive actual notice of this injunction by personal service or otherwise.
SO ORDERED on October 18, 2019. s/Robert L. Hinkle United States District Judge
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 </s> Case: 19-14551 Date Filed: 02/19/2020 Page: 1 of 78
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-14551 ________________________
D.C. Docket No. 4:19-cv-00300-RH-MJF KELVIN LEON JONES, BONNIE RAYSOR, et al.,
Plaintiffs–Appellees,
versus
GOVERNOR OF FLORIDA, FLORIDA SECRETARY OF STATE,
Defendants–Appellants. ________________________
Appeal from the United States District Court for the Northern District of Florida _______________________ (February 19, 2020)
Before ANDERSON and MARCUS, Circuit Judges, and ROTHSTEIN,* District Judge.
* Honorable Barbara J. Rothstein, United States District Judge for the District of Columbia, sitting by designation.

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PER CURIAM: On November 6, 2018, Florida voters approved Amendment 4, a state
constitutional amendment that automatically restored voting rights to ex-felons who had completed all of the terms of their sentences. Contemporary media reports suggested that as many as 1.4 million felons could be eligible for reenfranchisement under the law. Accounts differed as to whether this figure made Amendment 4 the single largest act of enfranchisement since the Nineteenth Amendment in 1920, the Voting Rights Act in 1965, or the Twenty-Sixth Amendment in 1971. By any measure, Amendment 4’s enfranchisement was historic.
Amendment 4 provided that a felon’s “voting rights shall be restored upon completion of all terms of sentence including parole or probation.” Following its passage, the Florida legislature passed Senate Bill 7066, which implemented the Amendment and interpreted its language to require payment of all fines, fees and restitution imposed as part of the sentence (collectively, “legal financial obligations” or “LFOs”). The Florida Supreme Court later agreed with the legislature’s interpretation of the Amendment—during the pendency of this appeal, it held that the plain text of Amendment 4 requires payment of all LFOs as a precondition of re-enfranchisement.
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Following the passage of SB 7066, the seventeen plaintiffs in this case brought suit, challenging the constitutionality of the LFO requirement. Each plaintiff is a felon who has alleged that he or she would be eligible for reenfranchisement under Amendment 4 but for non-payment of outstanding LFOs. Each plaintiff has also alleged that he or she is indigent and, therefore, genuinely unable to pay those obligations.
The cases were consolidated in the United States District Court for the Northern District of Florida, which then issued a preliminary injunction requiring the State to allow the named plaintiffs to register and vote if they are able to show that they are genuinely unable to pay their LFOs and would otherwise be eligible to vote under Amendment 4. From this order the State timely appealed to this Court.
Because the LFO requirement punishes those who cannot pay more harshly than those who can—and does so by continuing to deny them access to the ballot box—Supreme Court precedent leads us to apply heightened scrutiny in asking whether the requirement violates the Equal Protection Clause of the Fourteenth Amendment as applied to these plaintiffs. When measured against this standard, we hold that it does and affirm the preliminary injunction entered by the district court.
I. BACKGROUND
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Florida has a long history of disenfranchising those who commit serious crimes, a common practice nationwide that dates to the very beginning of the republic. See George Brooks, Comment, Felon Disenfranchisement: Law, History, Policy, and Politics, 32 Fordham Urb. L.J. 851, 852–53 (2005) (“The first disenfranchisement laws in America appeared in the 1600s . . . and were present from the earliest times of the Republic.”); see also Richardson v. Ramirez, 418 U.S. 24, 48 (1974) (noting that, in 1868, 29 states had constitutional provisions authorizing the disenfranchisement of felons); Johnson v. Governor of Fla., 405 F.3d 1214, 1218 (11th Cir. 2005) (en banc) (“Florida’s policy of criminal disenfranchisement has a long history . . . .”). Indeed, Florida’s Constitution has authorized the disenfranchisement of felons since before it joined the Union. See Fla. Const. art. VI, § 4 (1838) (empowering the territorial legislature of Florida to “exclude from . . . the right of suffrage, all persons convicted of bribery, perjury, or other infamous crime”). This policy remained consistent as a matter of state constitutional law until Amendment 4 was passed in 2018. See 1845 Fla. Laws ch. 38, art. 2, § 3 (providing that “no person who shall hereafter be convicted of bribery, perjury, or other infamous crime, shall be entitled to the right of suffrage”); Fla. Const. art. VI, § 4(a) (1968) (“No person convicted of a felony . . . shall be qualified to vote . . . .”).
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The contemporary voters of Florida, however, are not alone in finding the
longstanding policy of categorically depriving felons of voting rights increasingly
unpalatable. In the past two decades, nearly half of the states have in some way
expanded felons’ access to the franchise.1 While once commonplace, as best as we
can tell, only one state maintains a policy of disenfranchising all felons
1 See H.B. 3, 2003 2d Spec. Sess. (Ala. 2003) (streamlining the process by which felons may apply for readmission to the franchise); H.B. 282, 2017 Reg. Sess. (Ala. 2017) (clarifying which felony convictions result in disenfranchisement and omitting drug possession crimes, among others); A.B.-2466, 2015-2016 Reg. Sess. (Cal. 2016) (restoring voting rights to felons held in county jails); 2002 Conn. Pub. Acts No. 01-11 (restoring voting rights to felons on probation); H.B. 126, 140th Gen. Assemb. (Del. 2000) (amending the state constitution to repeal lifetime disenfranchisement); H.B. 10, 147th Gen. Assemb. (Del. 2013) (removing a five-year waiting period and automatically re-enfranchising qualifying felons); S.B. 2430, 2006 Reg. Sess. (Haw. 2006) (streamlining re-enfranchising process by requiring data sharing between the clerk of the court and the county); H.B. 265, 2018 Reg. Sess. (La. 2018) (restoring voting rights to felons who have not been incarcerated in the last 5 years); H.B. 980, 2015 Reg. Sess. (Md. 2015) (reenfranchising felons on parole or probation); L.B. 53, 99th Leg. (Neb. 2005) (repealing lifetime disenfranchisement of felons); A.B. 431, 80th Sess. (Nev. 2019) (automatically restoring voting rights upon release from prison); S.B. 204, 2001 Reg. Sess. (N.M. 2001) (repealing lifetime disenfranchisement); A9706, 2010 Assemb. (N.Y. 2010) (requiring individuals released from prison or parole be given a voter registration card); H.B. 1743, Gen. Assemb., 2007 Sess. (N.C. 2007) (requiring various state agencies to implement policies to inform former felons of their eligibility to vote); H7938, Gen. Assemb., 2006 Sess. (R.I. 2006) (extending voting rights to felons on parole or probation); 2006 Tenn. Pub. Acts 860 (simplifying Tennessee’s vote restoration process); Tex. Elec. Code § 2-11 (eliminating a two-year waiting period and automatically restoring voting rights upon full completion of the sentence); H.B. 1517, 61st Leg., 2009 Reg. Sess. (Wash. 2009) (provisionally re-enfranchising felons who had completed parole or probation but had not paid all legal financial obligations); H.B. 75, 64th Leg., 2017 Gen. Sess. (Wyo. 2017) (automatically expanding voting rights to individuals convicted of any non-violent felony offense). A number of additional states have expanded voting rights to felons by executive action. See generally Morgan McLeod, Expanding the Vote: Two Decades of Felony Disenfranchisement Reform, The Sentencing Project (2018).
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permanently absent executive clemency,2 although nearly every state continues to disenfranchise felons in some way.3
Regardless of the political trend toward re-enfranchisement, there is nothing unconstitutional about disenfranchising felons—even all felons, even for life. See Richardson, 418 U.S. at 56 (holding that the lifelong disenfranchisement of felons does not violate the Equal Protection Clause). In Richardson, the Supreme Court found in § 2 of the Fourteenth Amendment—which decreases the population of a state that is counted for apportionment purposes when it disenfranchises any male citizens over twenty-one “except for participation in rebellion, or other crime,” U.S. Const. amend. XIV, § 2 (emphasis added)—an affirmative constitutional sanction for these policies. See Richardson, 418 U.S. at 41–53. There is, indeed, evidence in Florida’s history that its policy of disenfranchising felons was consistent with the original understanding of the Fourteenth Amendment. The Readmission Act of Florida, passed by the Reconstruction Congress, prohibited changes to the state constitution that “deprive[d] any citizen or class of citizens of
2 See Iowa Const. art. II, § 5 (which comes closest to a permanent bar, offering reenfranchisement only through discretionary executive clemency). Iowa permits felons to apply for executive clemency, but only after they have either completed payment of LFOs or are current on a payment plan. See Office of the Governor of Iowa, Voting Rights Restoration, https://governor.iowa.gov/services/voting-rights-restoration (last visited Feb. 10, 2020). 3 Only two states—Maine and Vermont—impose no restrictions on the rights of felons to vote. See Me. Const. art. II, § 1; Vt. Const. ch. II, § 42. The other 48 states and the District of Columbia impose some restrictions on felons’ access to the franchise.
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the United States of the right to vote . . . except as a punishment for such crimes as are now felonies at common law.” Act of June 25, 1868, ch. 50, 15 Stat. 73, 73 (emphasis added).
Prior to the adoption of Amendment 4, all felons in Florida were presumptively disenfranchised for life. See Fla. Const. art. VI, § 4(a) (1968). It was possible for a felon to regain his or her right to vote, but only by executive clemency, a purely discretionary process. See id. (“No person convicted of a felony . . . shall be qualified to vote or hold office until restoration of civil rights or removal of disability.”). Those unable to regain the franchise by the grace of the Governor challenged the constitutionality of this process in practice several times since its adoption in 1968, but this Court has consistently rejected those efforts.
Thus, for example, in Johnson the plaintiffs alleged that Florida’s rightsrestoration process ran afoul of the Fourteenth Amendment’s Equal Protection Clause because, though facially neutral, it intentionally discriminated on the basis of race against African-Americans and other voters of color. 405 F.3d at 1217. Sitting en banc, we rejected these claims, determining that the State “enact[ed] the provision [in 1968] without an impermissible motive.” Id. at 1224. Similarly, in Hand v. Scott, we reversed a permanent injunction enjoining the State’s Executive Clemency Board from enforcing the restoration process, holding that the process
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did not have “a discriminatory purpose or effect” with respect to race. 888 F.3d
1206, 1207 (11th Cir. 2018) (emphasis in original).
As a general matter, the Florida Constitution may be amended by a
referendum in which sixty percent of the voters agree on the text of an amendment
proposed by citizen initiative. See Fla. Const. art. XI, § 5(e). On November 6,
2018, Florida’s voters wielded this power and adopted an amendment, with
64.55% of the votes in favor, designed to automatically re-enfranchise certain
felons. Formally termed the Voting Rights Restoration for Felons Initiative, this
amendment has come to be popularly known as “Amendment 4,” owing to its
numeric position on the ballot. The amended portion of the Florida Constitution
now reads in relevant part:
(a) No person convicted of a felony, or adjudicated in this or any other state to be mentally incompetent, shall be qualified to vote or hold office until restoration of civil rights or removal of disability. Except as provided in subsection (b) of this section, any disqualification from voting arising from a felony conviction shall terminate and voting rights shall be restored upon completion of all terms of sentence including parole or probation.
(b) No person convicted of murder or a felony sexual offense shall be qualified to vote until restoration of civil rights.
Fla. Const. art. VI, § 4(a)–(b) (amended 2018) (italicized text added by
Amendment 4).
In May 2019, the Florida legislature implemented the provisions of
Amendment 4 with Senate Bill 7066 (“SB 7066”), which was codified at Fla. Stat.
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§ 98.0751. In relevant part, SB 7066 interpreted the operative phrase— “completion of all terms of sentence”—to mean “any portion of a sentence that is contained in the four corners of the sentencing document,” including release from imprisonment; termination of probation, parole, or community control; fulfillment of any additional terms ordered by the court; and payment of all LFOs ordered by the court. Id. § 98.0751(2)(a). LFOs include restitution to victims and “fines or fees ordered by the court as a part of the sentence or that are ordered by the court as a condition of any form of supervision.” Id.
SB 7066 further provided that these financial obligations would be deemed completed by payment of the obligation, approval of discharge of the obligation by the person to whom it is owed, completion of community service hours if a court converts the obligation into service hours, or modification of the original sentencing document by a court to remove the obligation. Id. The obligation would not be considered discharged if converted to a civil lien, a practice the Florida courts often use to remove an obligation from the criminal justice system after a court has determined the individual is unlikely to be able to pay.4 Id.
4 The district court found as a factual matter that Florida’s judges often use the state’s statutory mechanism for converting financial obligations imposed at sentencing to civil liens, Fla. Stat. § 938.30(6)–(9), when they know that the defendant is unable to pay the amount assessed.
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Finally, SB 7066 established a Restoration of Voting Rights Work Group to
study the implementation of Amendment 4. Fla. Laws ch. 2019-162, § 33. In
November 2019, the Work Group submitted a report with non-binding
recommendations, including that individuals be provided an opportunity “to
demonstrate a partial or full inability to pay outstanding [LFOs] and obtain a
judicial determination on ability to pay.”
Pursuant to his statutory authority, see Fla. Const. art. IV, § 1(c), Florida’s
Governor, Ron DeSantis, requested an advisory opinion from the Florida Supreme
Court on August 9, 2019 regarding whether Amendment 4’s language mandating
completion of “all terms of sentence” itself requires payment of LFOs. On January
16, 2020, while this appeal was pending, the Florida Supreme Court issued an
advisory opinion holding that it does.5 Advisory Op. to Gov. re: Implementation of
5 Florida is not alone in requiring payment of LFOs as a condition to re-enfranchising felons. Seven other states expressly require the payment of certain legal financial obligations as a condition of re-enfranchisement. See Ala. Code § 15-22-36.1(a)(3) (requiring payment of “all fines, court costs, fees, and victim restitution”); Ariz. Rev. Stat. Ann. § 13-907 (permitting automatic re-enfranchisement after completion of probation for first-time offenders, so long as “the person pays any victim restitution imposed”); Ark. Const. amend. 51, § 11(d)(2)(A) (requiring felons seeking re-enfranchisement to provide proof they have “paid all applicable court costs, fines, or restitution”); Conn. Gen. Stat. § 9-46a(a) (requiring “payment of all fines in conjunction with the conviction” for persons “convicted of a felony and committed to confinement in a federal or other state correctional institution”); Ga. Att’y Gen. Op. No. 84-33, 1984 WL 59904 (May 24, 1984) (for certain statutory fines, “a person may not register and vote until his sentence is complete in all respects including the completion of the payment of the fine imposed”); Tenn. Code Ann. § 40-29-202(b) (requiring as conditions of re-enfranchisement payment of “all restitution”; payment of “court costs . . . , except where the court has made a finding at an evidentiary hearing that the applicant is indigent”; and that “the person is current in all child support obligations”); Wash. Rev. Code § 29A.08.520 (provisionally restoring the right to vote for felons convicted in Washington state court but requiring the prosecutor, upon request
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Amend. 4, The Voting Restoration Amendment, 45 Fla. L. Weekly S10 (2020). Because Florida’s Supreme Court is the final arbiter of state law, this adjudication conclusively resolves whether SB 7066 properly interpreted the scope of Amendment 4. See Guideone Elite Ins. Co. v. Old Cutler Presbyterian Church, Inc., 420 F.3d 1317, 1326 n.5 (11th Cir. 2005) (“Our objective is to determine issues of state law as we believe the Florida Supreme Court would . . . .”).
II. PROCEDURAL HISTORY On June 28, 2019, Kelvin Jones sued the Governor and Secretary of State of Florida, as well as the Supervisor of Elections of the county in which he resides, pursuant to 42 U.S.C. § 1983, challenging SB 7066 and Amendment 4 to the extent that its language was found to include the LFO requirement. Jones alleged that the LFO requirement violated the First Amendment, the Due Process and Equal Protection Clauses of the Fourteenth Amendment, and the Twenty-Fourth Amendment, both in general and as applied to him, because he is genuinely unable to pay. He sought declaratory and injunctive relief directing the defendants to
of the county clerk or restitution recipient, to seek revocation of the provisional restoration if “the person has failed to make three payments in a twelve-month period”). Like Florida, Kansas and Texas require felons to complete the terms of their sentences before they may vote. See Kan. Stat. Ann. § 21-6613(b) (extending disenfranchisement until a felon “has completed the terms of the authorized sentence”); Tex. Elec. Code Ann. § 11.002(a)(4)(A) (permitting reenfranchisement once a felon has “fully discharged . . . the sentence, including any term of incarceration, parole, or supervision”). Unlike Florida, though, we have found no guidance as to whether Texas’s and Kansas’s requirements include the payment of outstanding legal financial obligations.
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allow him to register to vote, or to bar them from revoking his registration if he qualified to vote without consideration of his outstanding legal financial obligations.
On June 30, 2019, the district court ordered the Jones case consolidated with other cases that had raised similar challenges to Amendment 4’s LFO requirement. Each of the seventeen named plaintiffs in this consolidated case alleged that he or she would be entitled to vote under Amendment 4 and SB 7066, but for the outstanding LFOs that they are unable to pay. Fifteen of the seventeen named plaintiffs have submitted affidavits attesting to their inability to pay. Two plaintiffs did not, but rather alleged in their complaint that they were unable to pay their outstanding legal financial obligations.
In August 2019, the plaintiffs jointly moved for a preliminary injunction enjoining the enforcement of the portions of the law that required the payment of LFOs as a condition precedent to accessing the ballot. In September, the plaintiffs also moved to certify classes for their Twenty-Fourth Amendment and wealth discrimination equal protection claims. They proposed a broad class for their Twenty-Fourth Amendment poll tax claim, defined as: “All persons otherwise eligible to vote in Florida who are denied the right to vote because they have outstanding LFOs.” As for their wealth discrimination equal protection claim, the plaintiffs proposed to define the subclass as: “All persons otherwise eligible to vote
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in Florida who are denied the right to vote solely because they are genuinely unable to pay their outstanding LFOs.” The district court has not yet ruled on class certification.
The district court held an evidentiary hearing on the preliminary injunction on October 7–8, 2019, and, on October 18, 2019, it granted the plaintiffs’ motion for preliminary injunctive relief in part. The court found that the plaintiffs had shown a substantial likelihood of success on the merits of their equal protection claim—that Amendment 4’s LFO requirement, as applied to those who genuinely could not pay, constituted wealth discrimination in violation of the Fourteenth Amendment. The district court apparently applied strict scrutiny and concluded that the requirement could not pass constitutional muster as applied. Finding the other prerequisites of equitable relief satisfied, the district court issued a preliminary injunction. The district court declined to rule on the plaintiffs’ First Amendment, Due Process Clause or Twenty-Fourth Amendment claims.
The district court carefully circumscribed the preliminary injunction. It enjoined the defendants (other than the Governor and the Supervisor of Orange County) from preventing any of the seventeen plaintiffs from registering to vote based solely on an inability to pay outstanding legal financial obligations, where each plaintiff asserts that he or she is genuinely unable to pay. It further enjoined
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the same defendants from preventing the plaintiffs from actually voting if indeed they could establish that they are unable to pay.
Moreover, the injunction specifically provided that it “does not prevent the Secretary from notifying the appropriate Supervisor of Elections that a plaintiff has an unpaid financial obligation that will make the plaintiff ineligible to vote unless the plaintiff shows that the plaintiff is genuinely unable to pay the financial obligation.” Nothing in the preliminary injunction precludes the State from requiring additional proof of a plaintiff’s inability to pay beyond what had been offered in district court. Notably, the court did not order the State to follow any specific procedure or adopt any regime in complying with the injunction. Rather, it suggested that the State’s existing voter registration procedure could provide an appropriate process. Moreover, the court did not define the term “genuine inability to pay,” again leaving it to the State to make a reasonable, good faith determination of how it could implement that term consistent with the court’s order. In short, the court’s order left the State with substantial discretion in choosing how to comply.
The Governor and Secretary timely appealed to us on November 15, 2019. A district court’s grant of a preliminary injunction is an appealable interlocutory order over which we have jurisdiction. 28 U.S.C. § 1292(a)(1). Nevertheless, in exercising our jurisdiction over this appeal we are aware that we are ruling on a slim and preliminary record. See Wreal, LLC v. Amazon.com, Inc., 840 F.3d 1244,
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1248 (11th Cir. 2016). A two-week trial in this case is currently scheduled for April 6, 2020, which will allow for the complete development of a factual record.
On December 12, 2019, this Court asked the parties to address whether the Governor has standing to appeal the district court’s order, since the order enjoined all defendants “other than the Governor and Supervisor [of Elections] of Orange County.” We carried this issue with the case. We agree with all of the parties that regardless of whether the Governor has standing, a question on which we do not rule, the Secretary of State clearly has standing sufficient to confer jurisdiction over the entire case. See Horne v. Flores, 557 U.S. 433, 446 (2009) (“Because the superintendent clearly has standing to challenge the lower courts’ decisions, we need not consider whether the Legislators also have standing to do so.”); Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264 & n.9 (1977) (holding that where “at least one individual plaintiff . . . has demonstrated standing . . . we need not consider whether the other . . . plaintiffs have standing to maintain the suit”). Accordingly, the Governor may remain a proper party in this appeal.6
On December 19, 2019, on motion from the Secretary of State, the district court partially stayed the preliminary injunction. It stayed only the portion of its ruling enjoining the defendants from preventing the plaintiffs from actually voting;
6 For convenience, in this opinion, we refer to the defendants collectively as “the defendants” or “the State.”
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the court declined, however, to stay its order enjoining the defendants from preventing the seventeen plaintiffs from registering to vote. The district court provided that its partial stay would expire either when this Court ruled on the propriety of its preliminary injunction or on February 11, 2020, whichever occurs first.7
III. ANALYSIS A preliminary injunction is an “extraordinary remedy.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). A district court may grant preliminary injunctive relief only when a party establishes each of four separate requirements: (1) it has a substantial likelihood of success on the merits; (2) irreparable injury will be suffered unless the injunction issues; (3) the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) if issued, the injunction would not be adverse to the public interest. Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (en banc). We review a district court’s grant of preliminary injunctive relief for abuse of discretion. See Democratic Exec. Comm. of Fla. v. Lee, 915 F.3d 1312, 1317 (11th Cir. 2019); see also Carillon Imps., Ltd. v. Frank Pesce Int’l Grp., Ltd., 112 F.3d 1125, 1126 (11th Cir. 1997) (“The review of a district court’s decision to grant or deny a preliminary injunction is extremely narrow in scope.”). In so
7 The next statewide election is Florida’s presidential primary election, which takes place on March 17, 2020. Early voting begins on March 7, 2020, and the deadline to register to vote for the presidential primary is February 18, 2020. See Fla. Stat. § 97.055(1)(a).
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doing, we review the district court’s underlying legal conclusions de novo and its
findings of fact for clear error. See Democratic Exec. Comm., 915 F.3d at 1317.
This deferential standard follows from “[t]he expedited nature of preliminary
injunction proceedings,” in which “judgments . . . about the viability of a plaintiff’s
claims and the balancing of equities and the public interest . . . are the district
court’s to make.” BellSouth Telecomms., Inc. v. MCIMetro Access Transmission
Servs., LLC, 425 F.3d 964, 968 (11th Cir. 2005) (quoting Cumulus Media, Inc. v.
Clear Channel Commc’ns, Inc., 304 F.3d 1167, 1171 (11th Cir. 2002)).
The plaintiffs claim that Amendment 4’s requirement that they pay their
LFOs as a precondition to voting, as applied to them and to the extent that they are
genuinely unable to pay, violates the Equal Protection Clause of the Fourteenth
Amendment.8 The essential question is whether the district court’s holding was
8 We do not address the plaintiffs’ Twenty-Fourth Amendment claims because they are not ripe for appellate review. The Twenty-Fourth Amendment bars the federal and state governments from imposing poll taxes. See U.S. Const. amend. XXIV (“The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, 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.”). In the proceedings below, the plaintiffs argued that Florida’s re-enfranchisement scheme operated as an unconstitutional poll tax.
The district court, in dicta, discussed the plaintiffs’ Twenty-Fourth Amendment claim at some length. In particular, it observed that while none of the financial obligations at issue are formal poll taxes, and fines and restitution plainly do not qualify as “other taxes,” it was debatable whether routine fees imposed during the criminal process would qualify. Nevertheless, because the district court expressly declined to rule on the merits of the Twenty-Fourth Amendment claim, we do not address it either. “[W]hen an appeal is taken from the grant or denial of a preliminary injunction, the reviewing court will go no further into the merits than is necessary to decide the interlocutory appeal.” Callaway v. Block, 763 F.2d 1283, 1287 n.6 (11th Cir. 1985)
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correct. Cf. GeorgiaCarry.Org, Inc. v. U.S. Army Corps of Eng’rs, 788 F.3d 1318,
1329 (11th Cir. 2015) (noting that if the plaintiffs “have not shown a substantial
likelihood of success on the merits, we need not consider the remaining factors in
the preliminary injunction test”).
Supreme Court precedent leads us to apply some form of heightened
scrutiny in our consideration of the constitutionality of the LFO requirement, as
applied to these plaintiffs. It is undeniable that the LFO requirement punishes
those who cannot pay more harshly than those who can. Denying access to the
franchise to those genuinely unable to pay solely on account of wealth does not
survive heightened scrutiny. Because we further hold that the district court did not
abuse its considerable discretion in balancing the equitable factors for a
(citations omitted). Moreover, since consideration of the merits of the claim is at a minimum a mixed question of law and fact, turning in part on undeveloped facts about the function of these fees in the criminal justice system, it would be inappropriate for us to rule on it in the first instance. See Garrett v. Higgenbotham, 800 F.2d 1537, 1539 (11th Cir. 1986) (noting that a “mixed question of fact and law” is “one we are poorly situated to decide in the first instance” and remanding).
Similarly, we decline to rule on the plaintiffs’ procedural due process claims. The plaintiffs alleged that Florida’s LFO requirement violated the Due Process Clause of the Fourteenth Amendment because the State, which regularly converts outstanding LFOs to civil liens and relegates them to collection agencies, often does not know whether an individual has completely paid off his or her LFOs or how much remains outstanding. However, the district court explicitly declined to rule on this claim too, and, therefore, it is not properly before us. See Callaway, 763 F.2d at 1287 n.6. Moreover, the due process claim turns on factual questions about how Florida’s LFO collection scheme operates in practice, and in the absence of any factual findings by the district court, we will not attempt to find such facts on this preliminary record. See GeorgiaCarry.Org, Inc. v. U.S. Army Corps of Eng’rs, 788 F.3d 1318, 1328–29 (11th Cir. 2015) (“This slim preliminary injunction record does not provide nearly enough information to enable a court to fairly engage in a thorough constitutional analysis.”).
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preliminary injunction, and because under Florida law the unconstitutional application of the LFO requirement is easily severable from the remainder of Amendment 4, we affirm the district court’s preliminary injunction.
A. Likelihood of Success on the Merits The Constitution guarantees that “[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV. Whenever the law classifies and treats people differently, then, we have occasion to ask whether the equal protection of the law has been violated. But the “Fourteenth Amendment’s promise that no person shall be denied the equal protection of the laws must coexist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons.” Romer v. Evans, 517 U.S. 620, 631 (1996). The Supreme Court’s longstanding interpretation of the Equal Protection Clause accommodates those practicalities and respects the primary role of the legislature by requiring only a rational basis to sustain most state classifications. Id. We look through a different prism, however, when the law classifies in certain suspect ways—prototypically, on the basis of race, gender, or national origin—or classifies in a way that burdens fundamental rights. Such classifications are subject to heightened scrutiny, a more exacting form of review. See, e.g., Loving v. Virginia, 388 U.S. 1, 11 (1967) (applying heightened scrutiny to race
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classification); Craig v. Boren, 429 U.S. 190, 197–99 (1976) (applying heightened scrutiny to gender classification); Harper v. Va. State Bd. of Elections, 383 U.S. 663, 670 (1966) (applying heightened scrutiny to laws that limit access to the franchise on the basis of wealth).
The first and most critical question we face is deciding what lens we ought to look through in analyzing Florida’s felon re-enfranchisement scheme. The parties disagree about the appropriate standard of scrutiny that we should employ. The plaintiffs urge a heightened form of scrutiny employing the framework the Supreme Court used in Bearden v. Georgia, 461 U.S. 660 (1983); the defendants argue that rational basis review applies.
The appropriate level of scrutiny is not immediately obvious. This case does not neatly fit the traditional categories that call for heightened scrutiny—those making classifications affecting fundamental rights or suspect classes. Wealth, the Supreme Court has repeatedly held, is not a suspect classification. See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 29 (1973); Ortwein v. Schwab, 410 U.S. 656, 660 (1973). And felons may be stripped of their right to vote permanently. See Richardson, 418 U.S. at 56. On the other hand, it is not obvious that rational basis review is appropriate. In M.L.B. v. S.L.J., the Supreme Court instructed us that wealth classifications are subject to heightened scrutiny in two circumstances—where they are used to restrict access to the franchise and in the
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administration of criminal justice—both of which are plainly implicated by Amendment 4 and SB 7066. 519 U.S. 102, 124 (1996). Moreover, the Supreme Court has routinely referred to the right to vote as “fundamental.” See, e.g., Reynolds v. Sims, 377 U.S. 533, 561–62 (1964).
The only two courts to face this precise claim—wealth discrimination in automatic felon re-enfranchisement schemes that, as a practical matter, deny indigent felons access to the franchise—concluded that rational basis scrutiny applied because felons do not have a fundamental right to vote and wealth is not a suspect classification. See Johnson v. Bredesen, 624 F.3d 742 (6th Cir. 2010); Madison v. State, 163 P.3d 757 (Wash. 2007).
We disagree and ultimately conclude that heightened scrutiny applies in this case because we are faced with a narrow exception to traditional rational basis review: the creation of a wealth classification that punishes those genuinely unable to pay fees, fines, and restitution more harshly than those able to pay—that is, it punishes more harshly solely on account of wealth—by withholding access to the ballot box. Although we are convinced that heightened scrutiny applies in this case, we have reservations about whether the wealth-based disparities created by the LFO requirement would pass even rational basis scrutiny.
1. Rational Basis Scrutiny
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Under rational basis review, a law must be rationally related to a legitimate governmental interest and it “must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification” between persons. F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993). Traditional rational basis review is highly deferential to government action, although it is not “toothless.” Schweiker v. Wilson, 450 U.S. 221, 234 (1981) (quoting Mathews v. Lucas, 427 U.S. 495, 510 (1976)). When we review a statute for rationality, generally we ask whether there is any rational basis for the law, even if the government’s proffered explanation is irrational, and even if it fails to offer any explanation at all. “[W]e will not overturn such a statute unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the legislature’s actions were irrational.” Vance v. Bradley, 440 U.S. 93, 97 (1979).
The question we ask is whether the legislature could have conceived of a rational basis for the classification it drew. Indeed, “a legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.” Beach Commc’ns, Inc., 508 U.S. at 315. In upholding a statute that set a mandatory retirement age of 60 for foreign service officers, for instance, the Supreme Court explained that although
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“empirical proof that health and energy tend to decline somewhat by age 60” would have been powerful evidence for upholding the statute, those challenging a legislative judgment must show not only that the facts do not support the classification, but even more onerously that “the legislative facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decisionmaker.” Bradley, 440 U.S. at 110–11.
Moreover, the burden of proof is placed squarely on the party challenging the lawfulness of the legislative classification. Statutes that do not draw lines based on suspect classes and do not burden fundamental rights “come[] to us bearing a strong presumption of validity, and those attacking the rationality of the legislative classification have the burden ‘to negative every conceivable basis which might support it.’” Beach Commc’ns, Inc., 508 U.S. at 314–15 (quoting Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1973)) (citation omitted).
Proceeding to the merits, we note that the parties disagree—not only about the choice between rational basis review and heightened scrutiny—but also about the proper focus of rational basis review. The plaintiffs argue that since they have brought an as-applied challenge, the rationality of the Florida scheme should be evaluated as applied to them. On the other hand, the State says that under rational basis review, even in an as-applied challenge, we should evaluate rationality more
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generally, in reference to the typical member of the affected class—or in the minerun of cases.
i. As applied to these plaintiffs, the LFO requirement is irrational If the question on rational basis review were simply whether the LFO requirement is rational as applied to those unable to pay, we think it is clearly not. The continued disenfranchisement of felons who are genuinely unable to pay LFOs and who have made a good faith effort to do so, does not further any legitimate state interest that we can discern. The irrationality of the LFO requirement as applied is apparent when we consider the State’s interests. The longstanding policy of felon disenfranchisement has been justified on two grounds, suggesting what those interests could be: (1) punishment for those who have breached the social contract by committing crimes, and (2) shielding the ballot box from those who have manifested antagonism to society’s laws. See Brooks, Felon Disenfranchisement, 32 Fordham Urb. L.J. at 852–54; Note, The Disenfranchisement of Ex-Felons: Citizenship, Criminality, and ‘the Purity of the Ballot Box,’ 102 Harv. L. Rev. 1300, 1301–03 (1989); see also Johnson, 405 F.3d at 1218 n.5 (describing felon disenfranchisement as a punitive device); Green v. Bd. of Elections of City of N.Y., 380 F.2d 445, 451 (2d Cir. 1967) (“A man who breaks the laws he has authorized his agent to make for his own governance could fairly have been thought to have
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abandoned the right to participate in further administering the compact. On a less theoretical plane, it can scarcely be deemed unreasonable for a state to decide that perpetrators of serious crimes shall not take part in electing the legislators who make the laws, the executives who enforce these, the prosecutors who must try them for further violations, or the judges who are to consider their cases.”).
It appears that Florida’s disenfranchisement of felons was adopted with similar motivation. See Act of June 25, 1868, ch. 70, 15 Stat. 73, 73 (authorizing Florida’s re-entry to the Union while prohibiting any change to its constitution that “deprive[d] any citizen or class of citizens of the United States of the right to vote . . . except as punishment for such crimes as [were then] felonies at common law”) (emphasis added).
Florida’s interest in disenfranchisement as punishment is multifaceted. Perhaps most obviously, the State has a strong interest in promoting the payment of restitution and other financial obligations, for which ongoing punishment of disenfranchisement may serve as an incentive. Indeed, as to some class of felons, the State surely has a legitimate interest in making victims whole by encouraging restitutionary payments and, more generally, Florida has a legitimate interest in ensuring compliance with the lawful sentencing orders of its courts. Similarly, as a general matter, the State has an obvious interest in deterring crime and in employing punitive measures designed to raise the costs associated with criminal
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conduct. Moreover, the State argues that it has an additional interest in punishment beyond any practical effects it may have—it argues that the State has a lawful interest in punishing criminals simply because they have done a bad thing and deserve to be punished. See Glossip v. Gross, 135 S. Ct. 2726, 2769 (2015) (Breyer, J., dissenting) (“Retribution is a valid penological goal.”).
First, the State asserts an interest in facilitating the collection of outstanding fines and restitution and broadly encouraging the repayment of felons’ debts to society. We agree that the State has an “interest in the collection of revenues produced by [the] payment of fines.” Williams v. Illinois, 399 U.S. 235, 238 (1970). With regard to those felons who have the ability to pay, it is rational for the State to withhold benefits until they do so. However, as for these seventeen plaintiffs, who are indigent and genuinely unable to pay despite good faith efforts, collection is obviously futile and further punishment makes collection no more likely. If a felon is truly indigent and unable to pay his LFOs, Florida’s requirement “obviously does not serve [revenue collection]; the defendant cannot pay because he is indigent.” Tate v. Short, 401 U.S. 395, 399 (1971); cf. Bearden, 461 U.S. at 670–71 (“Revoking the probation of someone who through no fault of his own is unable to make restitution will not make restitution suddenly forthcoming. Indeed, such a policy may have the perverse effect of inducing the
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probationer to use illegal means to acquire funds to pay in order to avoid
revocation.”).
The problem with the incentive-collections theory is that it relies on the
notion that the destitute would only, with the prospect of being able to vote, begin
to scratch and claw for every penny, ignoring the far more powerful incentives that
already exist for them—like putting food on the table, a roof over their heads, and
clothes on their backs. The simple truth is that a collection-based rationale for
those who genuinely cannot pay, and who offer no immediate prospects of being
able to do so, erects a barrier “without delivering any money at all.” Zablocki v.
Redhail, 434 U.S. 374, 389 (1978) (striking down a statute that required an
individual to show he had satisfied court-ordered child support before being able to
marry). If withholding marriage from those who cannot pay will not incentivize
them to do so, surely withholding access to the franchise will not get the State any
further.9
9 The State suggests that the Clemency Board’s recent changes to its rules allowing felons with outstanding LFOs to apply for clemency are relevant in this regard. However, we think that the Board’s changes actually cut against the State in considering its interest in encouraging repayment of LFOs. As we see it, the incentives analysis was slightly altered when the Clemency Board changed its rules on January 21, 2020, allowing for discretionary clemency review, even if restitution has not been paid—but not in the direction the State indicates. If anything, the change in the clemency rules diminishes the incentive for felons to carefully save money to pay their LFOs, because they have some chance at an alternative. Moreover, the State’s argument that this change in some sense erased the relevant wealth disparity is spurious—under the new rules, those who cannot pay must wait at least seven years before applying and then try their hand at an entirely unfettered, discretionary, and as-yet-untested clemency process, while those who can pay are re-enfranchised automatically. Though this Court in Johnson held that the Equal Protection Clause was not violated where Florida’s prior
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Although the State has an interest in avoiding asset concealment among felons, we think that interest is inapplicable here. Perhaps a standardless system, where felons could simply self-report their impecunity and vote with no verification, would encourage asset concealment. But that is not the system imposed by the district court’s preliminary injunction. The district court endorsed the State’s use of a procedure, like that which already exists for verifying voter registration applications, to provide an opportunity to prove that a felon is truly unable to pay. As the plaintiffs point out, this sort of system makes asset concealment less likely, not more. Under the current system, felons can conceal their assets until law enforcement finds them. But under any reasonable verification procedure the State may design in complying with the preliminary injunction, their claims of indigency would be put to the proof.
As for the State’s interest in deterrence, enforcing continued disenfranchisement against these plaintiffs does not further that interest. To the extent that losing the right to vote is a punishment that could give a would-be criminal pause (unlikely, in the best of circumstances), these plaintiffs have already lost that right. And because we are analyzing the rationality of the LFO
clemency rules offered only purely discretionary re-enfranchisement and required those who had not paid their restitution to appear at a hearing while the petitions of those who had paid could be decided on the papers, see Johnson, 405 F.3d at 1216 n.1, the disparity in this case—automatic, immediate re-enfranchisement versus discretionary clemency at least seven years off—remains at an incomparably higher order of magnitude notwithstanding the January 21 changes.
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requirement as applied to these plaintiffs, any interest the State might have in its general deterrent effect with respect to society as a whole is not implicated.
Next, we address the State’s interest in punishment for its own sake, perhaps the most challenging interest at issue because it is stated at the highest order of abstraction. Nevertheless, under any plausible theory of retribution, punishment must at least bear some sense of proportionality to the culpability of the conduct punished to be rational. And this correlation must only be between the culpability of the conduct and the punishment:
Retribution, which has as its core logic the crude proportionality of “an eye for an eye,” has been regarded as a constitutionally valid basis for punishment only when the punishment is consistent with an individualized consideration of the defendant’s culpability, and when the administration of criminal justice works to channel society’s instinct for retribution. Tison v. Arizona, 481 U.S. 137, 180–81 (1987) (Brennan, J., dissenting) (quotations and citations omitted); Enmund v. Florida, 458 U.S. 782, 800 (1982) (“As for retribution as a justification for [imposing a particular punishment], we think this very much depends on the degree of [the defendant’s] culpability . . . .”). Here, these plaintiffs are punished more harshly than those who committed precisely the same crime—by having their right to vote taken from them likely for their entire lives. And this punishment is linked not to their culpability, but rather to the exogenous fact of their wealth. Indeed, the wealthy identical felon, with identical culpability, has his punishment cease. But the felon with no reasoned
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prospect of being able to pay has his punishment continue solely due to the impossibility of meeting the State’s requirement, despite any bona fide efforts to do so. Whatever interest the State may have in punishment, this interest is surely limited to a punishment that is applied in proportion to culpability.
Punishment aside, the State could conceivably have an interest in safeguarding the ballot box from a singularly unqualified group of potential voters. While such an interest has been tightly circumscribed by the Supreme Court, see, e.g., Harper, 383 U.S. at 665–66, it can be legitimate, see, e.g., Lassiter v. Northampton Cty. Bd. of Elections, 360 U.S. 45, 52 (1959) (“[A] State might conclude that only those who are literate should exercise the franchise.”); see also Green, 380 F.2d at 451.
This interest, however, is not plausibly furthered by the distinction Amendment 4 draws between those who have paid their financial obligations and those who have not. This is because the classification at issue is not between people who have disregarded the laws of society and those who have not, nor among groups of felons who have committed crimes that demonstrate that they are more hostile to democracy and the rule of law than are others. Rather, the classification is simply drawn between those who have paid their financial obligations and those who have not. This distinction is unrelated entirely to a felon’s prudent exercise of the franchise and cannot be said to reasonably further
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that purpose. See Harper, 383 U.S. at 666 (“Voter qualifications have no relation to wealth nor to paying or not paying this or any other tax.”).
The State additionally asserts that the LFO requirement satisfies rational basis review because it is justified by the administrative costs associated with conducting individualized determinations of ability to pay. The State is correct that ease of administration and reduction of costs may be a legitimate state interest. See Weinberger v. Salfi, 422 U.S. 749, 784 (1975). But with regard to the seventeen plaintiffs at issue in this appeal, we readily reject this asserted justification. The district court’s preliminary injunction leaves the State ample discretion in designing the procedure to be used to provide an opportunity for these plaintiffs (and others) to demonstrate their indigency and inability to pay for reasons beyond their control. The State has had, and still has before upcoming elections, ample time to provide such opportunity for these seventeen plaintiffs.
Moreover, reducing administrative costs is not a stand-alone interest in this case—Amendment 4 was not passed by a large majority of Florida’s voters as a cost-saving measure. Rather, the administrative burdens associated with the process of re-enfranchisement are more properly a factor the State may legitimately consider in pursuing its other interests. Bradley, 440 U.S. at 109 (noting that rational basis review accepts over- or under-inclusive classifications
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“because it is in turn rationally related to the secondary objective of legislative convenience”) (emphasis added).
Thus, if the question on rational basis review were simply whether the LFO requirement was rational as applied to the truly indigent—those genuinely unable to meet their financial obligations to pay fees and fines, and make restitution to the victims of their crimes—we would have little difficulty condemning it as irrational. Quite simply, Florida’s continued disenfranchisement of these seventeen plaintiffs is not rationally related to any legitimate governmental interest.
ii. As applied to the whole class of felons, on this record, the plaintiffs have failed to meet their burden to demonstrate the law is irrational But the State argues, and not without some force, that this is the wrong way to conduct rational basis review. It says we must look at the rationality of the Amendment in a more general sense, rather than asking whether it is irrational when applied to this particular class of plaintiffs, or as applied to any other discrete group. See, e.g., Califano v. Jobst, 434 U.S. 47, 55 (1977) (“The broad legislative classification must be judged by reference to characteristics typical of the affected classes rather than by focusing on selected, atypical examples.”); Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 316–17 (1976) (upholding as rational the mandatory retirement of police officers at age 50 without finding whether the measure was rational as applied to the plaintiff).
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The Supreme Court has on occasion, however, considered the rationality of a statute as applied to particular plaintiffs without opining on its rationality more generally. See, e.g., City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 435 (1985). Indeed, in Cleburne, the Supreme Court specifically rejected the lower court’s application of heightened scrutiny and repeatedly described its analysis as rational basis review as applied to the plaintiffs. Id. at 442, 446 (“[W]e conclude . . . that the Court of Appeals erred in [subjecting a classification based on mental retardation to] a more exacting standard of judicial review. . . . [L]egislation that distinguishes between the mentally retarded and others must be rationally related to a legitimate governmental purpose.”).
The Supreme Court has never overturned Cleburne or disavowed its logic. However, the case has come to be seen as an exception to ordinary rational basis review that applies a more demanding standard where the measure at issue has no purpose “other than a ‘bare . . . desire to harm a politically unpopular group.’” Trump v. Hawaii, 138 S. Ct. 2392, 2420 (2018) (quoting Dep’t of Agric. v. Moreno, 413 U.S. 528, 534 (1973)); see also Lawrence v. Texas, 539 U.S. 558, 580 (2003) (O’Connor, J., concurring) (describing Cleburne as applying “a more searching form of rational basis review”).
If rational basis review, then, generally is designed to ask only if the codification has some conceivable relation to a legitimate interest of the state, we
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would readily say that the LFO requirement as applied to the whole class of felons is rational. The analysis becomes more difficult, however, when the requirement is irrational as applied to a class of felons genuinely unable to pay if this class of the impecunious actually resembles the mine-run felon who has otherwise completed the terms of his sentence. Put another way, if the LFO requirement is irrational as applied to those felons genuinely unable to pay, and those felons are in fact the mine-run of felons affected by this legislation, then the requirements may be irrational as applied to the class as a whole.
The State appears to almost concede this point, arguing in its brief that “[a]bsent any evidence that felons unable to pay their outstanding legal financial obligations vastly outnumber those able to pay,” we cannot conclude that the requirement is irrational. And while we understand that a classification subject to rational basis review “must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification,” Beach Commc’ns, Inc., 508 U.S. at 313, if a substantial enough proportion of felons cannot pay their LFOs, it may be irrational to demand that they do.
Jobst and Murgia illustrate the point. In Jobst, the Supreme Court upheld a Social Security Act scheme that continued benefits for disabled children who married someone receiving social security and cut off benefits for those who
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married someone not receiving social security. 434 U.S. at 54–55. The Court rested its conclusion on the common-sense observation that the distinction reflected reasonable generalizations about the two different groups. See id. at 55 n.13 (“The fact that marriage characteristically signifies the end of a child’s dependency on parental support justifies a general rule terminating benefits when a child marries. The fact that a marriage between two spouses who are both receiving dependents’ benefits does not characteristically signify a similar change in economic status justifies the exception. In other words, since the justifying characteristic of the general class does not apply to the excepted class, the exception rests on a reasonable predicate. This is true even though some members of each class may possess the characteristic more commonly found in the other class.”). If the Act’s classification had not tracked these common-sense generalizations—for example, if the Act only terminated benefits for those who married people eligible for social security—the outcome would likely have been different.
In Murgia, the Court upheld Massachusetts’s mandatory retirement age of 50 for police officers. 427 U.S. at 310–11. As in Jobst, the Court found that the generalization on which the statute was based broadly corresponded to reality. See id. at 315 (“Since physical ability generally declines with age, mandatory retirement at 50 serves to remove from police service those whose fitness for
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uniformed work presumptively has diminished with age.”). If the state’s age classification had not been broadly accurate—if Massachusetts only let people over 50 be police officers, for example—it is hard to imagine that the statute would have been upheld. So too here—if the plaintiffs in this case, as to whom the requirement at issue is clearly irrational, are the rule rather than the exception, we would have serious doubt about the requirement’s rationality.
The district court has made no factual findings on the ability to pay of the mine-run felon or the reasonableness of the scheme’s assumption that some nontrivial number of felons are able to pay their legal financial obligations, and it is not our place to do so. See, e.g., United States v. Mock, 523 F.3d 1299, 1304 (11th Cir. 2008) (vacating and remanding for further fact-finding where “the district court’s failure to make specific findings of law and fact precludes meaningful appellate review”).
Nevertheless, what evidence there is in this preliminary injunction record, taken in concert, casts a shadow on the State’s theory that the impecunious plaintiffs are the exception rather than the rule. Three pieces of evidence offered during the hearing suggest instead that a substantial number of felons—maybe a majority, maybe even a great majority—are like these plaintiffs who claim to be genuinely unable to pay their LFOs and would be precluded from voting under Florida’s scheme on account of wealth.
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First, plaintiffs’ expert, Professor Daniel Smith, compiled data from 58 of the 67 Florida counties and identified 542,207 individuals with felony convictions who had completed their terms of incarceration, parole, or probation. He found that more than 436,000, or 80.5%, of these felons had outstanding LFOs. Moreover, he found that 59% of these individuals had at least $500 of obligations outstanding, and 37.5% had at least $1,000 outstanding. Because Professor Smith was unable to obtain data from some of Florida’s most populous counties, his analysis was arguably a conservative one. While, notably, he did not conduct any analysis of whether these felons would be able to pay their LFOs, his report suggests that an overwhelming majority of felons have substantial unpaid financial obligations. Dr. Smith’s findings are not surprising. We know from elsewhere in the record that Florida’s criminal justice system imposes by statute and policy substantial fines and fees. The district court found “that in one county, the fees total at least $698 for every defendant who is represented by a public defender and at least $548 for every defendant who is not.” See also Fla. Stat. § 893.135 (imposing mandatory fines of no lower than $25,000 and up to $750,000 for drug trafficking convictions).
In the second place, the Florida Court Clerks and Comptrollers’ 2018 Annual Assessments and Collections Report—also a part of the preliminary injunction record—lists a collection rate for court-related fines, fees, penalties,
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charges, and costs of just 20.55% for felonies in the criminal circuit courts of Florida. That is, of the more than $250 million in outstanding court-related fines and fees, only approximately $50 million was collected in the 2017–2018 fiscal year. The report describes 85.79% of collections as at risk for nonpayment because of (1) incarceration (55%),10 (2) indigency (22.90%), and (3) conversion to a civil lien (7.89%), which, as the district court found as a factual matter, generally reflects a determination of inability to pay. In short, apparently, Florida itself does not expect to collect most legal financial obligations, largely on account of indigency. Third, the Florida legislature has recognized that most criminal defendants are indigent—indeed, in legislative history also referenced in this record, the legislature has specifically stated that “[m]ost criminal defendants are indigent.” See H.R. Staff Analysis, H.B. 1381, Reg. Sess. (Fla. 1998); H.R. Staff Analysis, H.B. 13, Reg. Sess. (Fla. 1999).
In the absence of any fact-finding by the district court, and on this limited record, we cannot say that the plaintiffs have carried their burden of establishing that a substantial proportion of felons (let alone a substantial majority of them) are indigent and, therefore, that the plaintiffs represent the mine-run felon. The facts
10 The report categorizes felons who are both incarcerated and indigent (or have had their obligations converted to civil liens) as incarcerated for purposes of their risk of nonpayment. Therefore, it is quite possible that a substantial proportion of incarcerated felons are also indigent. The report tells us nothing directly about this possibility.
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presented are only suggestive. What they do tell us, however, is that the State’s implicit claim that a non-negligible number of felons are capable of paying their LFOs may be wrong.
Accordingly, we have some pause in concluding that the LFO requirement as a general matter is grounded in a rational basis. Further development of the factual record at trial may shed more light on these issues. Thus, it appears to us plausible that rather than representing an idiosyncratic, impoverished exception, the plaintiffs in this case, if they are genuinely unable to pay, resemble the minerun felon otherwise eligible to vote under Amendment 4. We know from the record that the Florida legislature has acknowledged as much, that the Florida courts have an extremely pessimistic outlook about their collection prospects, and that the overwhelming majority of felons have more than $500 in outstanding LFOs.
If that turns out to be the case, then under Jobst the focus of the rationality evaluation would be on indigent felons just like these plaintiffs because their characteristics are those “typical of the affected class[].” 434 U.S. at 55. And we have already determined that enforcement of Florida’s scheme against such indigent persons is clearly irrational.
It is the plaintiffs’ burden to demonstrate that the LFO requirements are irrational as judged by reference to characteristics typical of the affected class, or,
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in other words, in the mine-run of cases. The plaintiffs must establish that so many felons are unable to pay their LFOs despite their best efforts for reasons beyond their control—in other words, that most felons share the characteristics that these plaintiffs do—so that it would not have been conceivable for Florida to believe that a reasonable proportion could pay. See Beach Commc’ns, Inc., 508 U.S. at 313. At the end of the day, the plaintiffs bear the burden and on this record they have not met it.
Although we do not affirm the district court’s preliminary injunction under a rational basis review, this does not end our analysis. For the reasons we detail below, Supreme Court precedent leads us to apply heightened scrutiny to this case and when measured against that standard, the requirement that the genuinely indigent pay back all of their legal financial obligations as a condition precedent for access to the ballot violates the Equal Protection Clause of the Fourteenth Amendment.
2. The LFO Requirement, As Applied to These Plaintiffs, Cannot Be Sustained Under Heightened Scrutiny Where a law draws suspect classifications or burdens fundamental rights, we look beyond the benign glance of rational basis review and demand a tighter fit between the classification and the government’s interests. At first blush, this case does not neatly fit into either category demanding heightened scrutiny. As we have said, generally, wealth is not a suspect classification. See Ortwein, 410 U.S.
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at 660. And states may—even permanently—disenfranchise a felon on the basis of his conviction. See Richardson, 418 U.S. at 56.
But the Supreme Court has told us that wealth classifications require more searching review in at least two discrete areas: the administration of criminal justice and access to the franchise. M.L.B., 519 U.S. at 123 (“[O]ur cases solidly establish two exceptions to that general rule [of rational basis for wealth classifications]. The basic right to participate in political processes as voters and candidates cannot be limited to those who can pay for a license. Nor may access to judicial processes in cases criminal or ‘quasi criminal in nature’ turn on ability to pay.” (citations omitted)). Because Florida’s re-enfranchisement scheme directly implicates wealth discrimination both in the administration of criminal justice and in access to the franchise, we are obliged to apply some form of heightened scrutiny. Florida has implemented a wealth classification that punishes those genuinely unable to pay fees, fines, and restitution more harshly than those able to pay—that is, it punishes more harshly solely on account of wealth—and it does so by withholding access to the franchise. The observation that Florida may strip the right to vote from all felons forever does not dictate that rational basis review is proper in this case. To the contrary, settled Supreme Court precedent instructs us to employ heightened scrutiny where the State has chosen to “open the door” to
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alleviate punishment for some, but mandates that punishment continue for others, solely on account of wealth.
i. Florida’s re-enfranchisement scheme unconstitutionally punishes a class of felons based only on their wealth We trace the principle of equal criminal justice for the “poor and rich, weak and powerful alike” to Griffin v. Illinois, 351 U.S. 12, 16 (1956). In Griffin, the state of Illinois required criminal defendants to purchase a certified copy of the trial record to appeal their sentences, without regard for the defendants’ impecuniousness. Id. at 13. As the Supreme Court explained, although “a State is not required by the Federal Constitution to provide appellate courts or a right to an appellate review at all . . . that is not to say that a State that does grant appellate review can do so in a way that discriminates against some convicted defendants on account of their poverty.” Id. at 18 (citing McKane v. Durston, 153 U.S. 684, 687– 88 (1894), for the proposition that the Constitution does not require states to provide appellate review). Once the state opened the door to criminal appeals and required the production of the trial record, it could not discriminate on the basis of wealth. As Justice Frankfurter put it, concurring in the judgment, if a state “has a general policy of allowing criminal appeals, it cannot make lack of means an effective bar to the exercise of this opportunity”; “[t]he State cannot keep the word of promise to the ear of those illegally convicted and break it to their hope.” Id. at 24 (Frankfurter, J., concurring).
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The Court’s conclusion flowed from two constitutional doctrines: “Both equal protection and due process emphasize the central aim of our entire judicial system—all people charged with crime must, so far as the law is concerned, ‘stand on an equality before the bar of justice in every American court.’” Id. at 15 (quoting Chambers v. Florida, 309 U.S. 227, 241 (1940); citing Yick Wo v. Hopkins, 118 U.S. 356, 359 (1886)). But whether sounding in equal protection or due process, Griffin’s equality principle is straightforward: the state may not treat criminal defendants more harshly on account of their poverty. See United States v. Plate, 839 F.3d 950, 955–56 (11th Cir. 2016) (applying the Griffin–Bearden line of cases and concluding that “[i]t is apparent that [the defendant] was treated more harshly in her sentence than she would have been if she (or her family and friends) had access to more money, and that is unconstitutional”).
In the more than 60 years since it was announced, “Griffin’s principle of ‘equal justice,’ . . . has been applied in numerous other contexts.” Bearden, 461 U.S. at 664 (citing, among others, Douglas v. California, 372 U.S. 353 (1963) (indigent entitled to counsel on first direct appeal); Roberts v. LaVallee, 389 U.S. 40 (1967) (indigent entitled to free transcript of preliminary hearing for use at trial); Mayer v. Chicago, 404 U.S. 189 (1971) (indigent cannot be denied an adequate record to appeal a conviction under a fine-only statute)).
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The Supreme Court has also determined that a state may not extend punishment on account of inability to pay fines or fees. See Bearden, 461 U.S. at 672–73 (holding that a state may not revoke probation—thereby extending a prison term—based on the failure to pay a fine the defendant is unable, through no fault of his own, to pay); Tate, 401 U.S. at 399 (holding that a state cannot imprison under a fine-only statute on the basis that an indigent defendant cannot pay a fine); Williams, 399 U.S. at 240–41 (holding that a period of imprisonment cannot be extended beyond the statutory maximum on the basis that an indigent cannot pay a fine).
In Bearden, the Court confronted “whether the Fourteenth Amendment prohibits a State from revoking an indigent defendant’s probation for failure to pay a fine and restitution.” 461 U.S. at 661. In that case, the trial court sentenced the defendant to three years of probation, a $500 fine, and $250 in restitution. Id. at 662. The court required him to pay $100 on the day of sentencing, $100 the following day, and the remainder ($550) within four months. Id. The defendant borrowed money to pay the initial $200, but then lost his job and was unable to pay the remaining $550 within the four-month period. Id. at 662–63. Upon a petition by the state, the trial court revoked the defendant’s probation for failure to pay the fine and restitution and sentenced him to serve the remainder of the three-year probation period in prison. Id. at 663. Although the defendant had no right to
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probation in the first instance, the Supreme Court concluded that revoking probation based on failure to pay a fine that a defendant was unable to pay through no fault of his own amounted to unconstitutional wealth discrimination. Id. at 672–73.
We think the Griffin–Bearden principle straightforwardly applies here too, where the State has chosen to continue to punish those felons who are genuinely unable to pay fees, fines, and restitution on account of their indigency, while reenfranchising all other similarly situated felons who can afford to pay. This is so because continued disenfranchisement is indisputably punitive in nature, and because felons who are unable to pay are subject to continued punishment solely because of their inability to pay. Just like in Bearden and in Griffin, the fact that the State originally was entitled to withhold access to the franchise from felons is immaterial; rather, heightened scrutiny is triggered when the State alleviates punishment for some, but mandates that it continue for others, based solely on account of wealth.
Disenfranchisement is punishment. We have said so clearly: “[f]elon disenfranchisement laws are unlike other voting qualifications” in that they “are deeply rooted in this Nation’s history and are a punitive device stemming from criminal law.” Johnson, 405 F.3d at 1228 (emphasis added); see also Harmelin v. Michigan, 501 U.S. 957, 983 (1991) (Scalia, J., writing separately) (discussing
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disenfranchisement in the context of the Eighth Amendment, and noting that “[t]he disenfranchisement of a citizen . . . is not an unusual punishment” (citation omitted)); Muntaqim v. Coombe, 366 F.3d 102, 123 (2d Cir. 2004) (“[T]here is a longstanding practice in this country of disenfranchising felons as a form of punishment.”), vacated en banc on other grounds, 449 F.3d 371 (2d Cir. 2006); Pamela A. Wilkins, The Mark of Cain: Disenfranchised Felons and the Constitutional No Man’s Land, 56 Syracuse L. Rev. 85, 133–34 (2005); Note, One Person, No Vote: The Laws of Felon Disenfranchisement, 115 Harv. L. Rev. 1939, 1939–42 (2002). Moreover, the Readmission Act of Florida authorized felon disenfranchisement only as punishment. The Act prohibited any change to the state constitution that “deprive[d] any citizen or class of citizens of the United States of the right to vote . . . except as punishment for such crimes as [were then] felonies at common law.” Act of June 25, 1868, ch. 70, 15 Stat. 73, 73 (emphasis added).
What’s more, disenfranchisement is a continuing form of punishment. It is true that two similarly situated felons—two felons who had committed the same crime—were subject to the same punishment (disenfranchisement) on the front end of the sentencing procedure. But much like a prisoner is punished throughout a carceral term, not just when he is initially sentenced to incarceration, so too disenfranchised felons continue to be punished as long as their disenfranchisement
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continues. The sanction of disenfranchisement cannot be described merely as a one-time revocation of the right to vote; rather, the punishment visits the felon at each and every election. Felons who are unable to pay (and who have no reasoned prospect of being able to pay) will remain barred from voting, repeatedly and indefinitely, while for those who can pay, the punishment will immediately come to an end.
Because the State has opted to automatically re-enfranchise felons who complete their terms of sentence and pay all of their LFOs, similarly situated felons who have otherwise completed their sentences except for the payment of LFOs they are unable to pay are treated differently on account of their inability to pay. The felon with money in the bank will be re-enfranchised. But the felon who can’t will continue to be barred. Merely because the State could strip the rights of both felons does not mean it can continue punishment for some and not others. In Griffin, after all, none of the convicts at issue had a right to a state appeal. But once the State opened the door to appeal, and as soon as it did, it subjected itself to a more heightened level of scrutiny by including wealth as the differentiating factor. So too in Bearden: the state was entitled to demand that every felon remain incarcerated. Felons have no constitutional right to probation. But by opening the door and offering probation to some, while continuing the punishment of incarceration for others, again based solely on wealth, heightened scrutiny was
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triggered. The same principle applies here: Florida is permitted to disenfranchise all felons. But as soon as the law demanded that punishment continue for some and not others based on wealth, we became obliged to examine this disparity with a sharper focus, because differential punishment on account of wealth strikes at the heart of Griffin’s equality principle.
ii. Heightened scrutiny is further compelled because the punishment the plaintiffs suffer implicates access to the franchise Moreover, and even more significantly, where the punishment itself takes the form of denying access to the franchise—the second arena where Griffin’s equality principle applies—we are all the more convinced that some form of heightened scrutiny is required. The Supreme Court expressly and repeatedly extended Griffin’s equality principle beyond the realm of criminal justice; it has been applied to state action that burdens important constitutional interests, such as fundamental associational and political participation interests. See M.L.B., 519 U.S. at 111 (“Griffin’s principle has not been confined to cases in which imprisonment is at stake.”); see also Zablocki, 434 U.S. at 389, 402 (striking down a statute that required an individual to show he had satisfied court-ordered child support before being able to marry); id. at 402 (Powell, J., concurring) (citing Griffin to distinguish from the traditional wealth-discrimination rational basis analysis); Lubin v. Panish, 415 U.S. 709, 719–21 (1974) (Douglas, J., concurring) (invoking Griffin to strike down a
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law requiring a filing fee to be placed on a state ballot); Cruz v. Hauck, 404 U.S. 59, 63–64 (1971) (invoking Griffin and declaring “[Griffin’s] equal protection concept is not limited to criminal prosecutions” (citations removed)); Boddie v. Connecticut, 401 U.S. 371, 382–84 (1971) (striking down state procedures imposing filing fees on an indigent couple who sought a divorce, deciding on due process grounds but stating “the rationale of Griffin covers this case,” while Justice Douglas’s concurrence reached the same outcome applying Griffin on equal protection grounds).
Voting is squarely among the interests that fall within Griffin’s grasp. More than a century ago, the Supreme Court held that voting “is regarded as a fundamental political right, because [it is] preservative of all rights.” Yick Wo, 118 U.S. at 370. More recently, the Court has affirmed the idea that “the right of suffrage is a fundamental matter in a free and democratic society,” and “any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized.” Reynolds, 377 U.S. at 561–62. Indeed, in Harper v. Virginia State Board of Elections, the Court expressly held, citing to Griffin, that “a State violates the Equal Protection Clause of the Fourteenth Amendment whenever it makes the affluence of the voter or payment of any fee an electoral standard.” 383 U.S. at 667–68; see also Johnson, 405 F.3d at 1216 n.1 (“Access to the franchise cannot be made to depend on an individual’s financial resources.”
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(citing Harper, 383 U.S. at 668)). In Harper, the Court invalidated a $1.50 poll tax applied to all voters in state elections, observing that “[l]ines drawn on the basis of wealth . . . are traditionally disfavored,” 383 U.S. at 668 (citing, inter alia, Griffin, 351 U.S. 12), and that a state could not discriminate on the basis of wealth in access to the franchise because “[t]o introduce wealth or payment of a fee as a measure of a voter’s qualifications is to introduce a capricious or irrelevant factor,” id. at 668.
The State argues, however, that Harper is distinguishable because it involved the fundamental right to vote, whereas felons have no fundamental right to vote because access to the ballot box can be constitutionally stripped from them. We are aware that other courts have applied rational basis scrutiny to felon reenfranchisement schemes requiring the payment of LFOs as a precondition to voting on the ground that felons no longer enjoy the fundamental right to vote. See, Bredesen, 624 F.3d at 746; Harvey v. Brewer, 605 F.3d 1067, 1079 (9th Cir. 2010); Madison, 163 P.3d at 766–67. Only Bredesen and Madison, however, involved an as-applied challenge to the LFO requirement by those who could not pay. Indeed, Justice O’Connor, writing for the Ninth Circuit in Harvey, expressly noted that no plaintiff in the case alleged that he was indigent. 605 F.3d at 1079. Her discussion left open the constitutional question arising from a re-
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enfranchisement scheme that continues to disenfranchise felons solely because they were indigent and truly unable to pay their fines. Id. at 1080.
For the proposition that felons can no longer claim a fundamental right to vote, other courts have ultimately relied on Richardson. See Owens v. Barnes, 711 F.2d 25, 27 (3d Cir. 1983) (“Plaintiff’s argument fails because the right of convicted felons to vote is not ‘fundamental.’ That was precisely the argument rejected in Richardson.”); see also Bredesen, 624 F.3d at 746, 750 (citing Richardson and Sixth Circuit precedent including Owens); Harvey, 605 F.3d at 1079 (“But [plaintiffs] cannot complain about their loss of a fundamental right to vote because felon disenfranchisement is explicitly permitted under the terms of Richardson . . . .”); Madison, 163 P.3d at 768 (“[W]e conclude that Richardson dictates that we hold that the right to vote is not fundamental for convicted felons.”).
But Richardson does not control the result in this case. All it holds, and no more, is that states have the green light to exclude felons from the franchise. 418 U.S. at 54. This broad statement of law is undoubtedly true, and indeed, no party disputes that Florida can withhold access to the franchise for all felons. But Richardson did not address what may happen when a state chooses to adopt the automatic re-enfranchisement of felons. And it surely did not address the critical factual circumstances permeating this case, where the State’s re-enfranchisement
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scheme automatically restores the right to vote to some felons who stand in materially the same shoes as these plaintiffs, but continues to disenfranchise these seventeen plaintiffs solely on account of their indigency and inability to pay for reasons wholly beyond their control. Instead, the Court made it clear that the abridgement of a felon’s right to vote is still subject to constitutional limitations; states do not have carte blanche to deny access to the franchise to some felons and not others, based on race or religion, for example. See id. at 56 (remanding to the Supreme Court of California for consideration of equal protection arguments); see also Harvey, 605 F.3d at 1079 (“[A] state could not choose to re-enfranchise voters of only one particular race . . . .” (citing Hunter v. Underwood, 471 U.S. 222, 233 (1985))).
Moreover, even if felons do not have the right to vote, nothing in Harper’s analysis turned on the assumption that those who would be unable to pay the fee personally had a fundamental right to vote. Indeed, the Harper Court expressly declined to rule on whether anyone has a fundamental right to vote in state elections, a proposition for which there would have been no authority. See 383 U.S. at 665 (“[T]he right to vote in state elections is nowhere expressly mentioned [in the Constitution]. It is argued that the right to vote in state elections is implicit . . . . We do not stop to canvass the relation between voting and political expression. For it is enough to say that once the franchise is granted to the
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electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment.”) (emphasis added).
Further, Harper distinguished Lassiter v. Northampton County Board of Elections—an earlier case that had held that denying access to the franchise to those who failed literacy tests did not violate the Equal Protection Clause—not by holding that the poor have a fundamental right to vote while the illiterate do not, but rather because it concluded that wealth has no relation to the prudent exercise of the franchise, while literacy does. See Harper, 383 U.S. at 665–66; see also Lassiter, 360 U.S. at 51. In the end, Harper makes clear that it is the fundamental nature of the right to vote in general, not its particular possession by the poor, that dictated the application of heightened scrutiny. See id. at 670 (“[W]ealth or fee paying has . . . no relation to voting qualifications; the right to vote is too precious, too fundamental to be so burdened or conditioned.”) (emphasis added).
That Harper’s application of heightened scrutiny to wealth discrimination in the context of access to the franchise was based on the importance of the right in general, rather than the possession of the right by particular individuals, is not surprising. Indeed, the Griffin–Bearden line of cases all illustrate this point. For example, each of Williams, Tate, and Bearden involved the “right to remain free.” Williams, 399 U.S. at 263 (Harlan, J., concurring). But in all three cases, the plaintiffs, who had committed crimes, could lawfully have had their liberty taken
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away—even permanently. To the same extent that felons are not entitled to vote, the plaintiffs in Williams, Tate, and Bearden were no longer entitled to their liberty.
Nevertheless, because the interest in liberty is so important, the Court held that the state could not rely on the plaintiffs’ wealth in deciding whether to deprive them of liberty. See Bearden, 461 U.S. at 672–73 (striking down revocation of probation that “would deprive the probationer of his conditional freedom simply because, through no fault of his own, he cannot pay the fine”); Tate, 401 U.S. at 398 (“[T]he same constitutional defect condemned in Williams also inheres in jailing an indigent for failing to make immediate payment of any fine, whether or not the fine is accompanied by a jail term and whether or not the jail term of the indigent extends beyond the maximum term that may be imposed on a person willing and able to pay a fine.”); Williams, 399 U.S. at 271 (“[O]nce the State has defined the outer limits of incarceration necessary to satisfy its penological interests and policies, it may not then subject a certain class of convicted defendants to a period of imprisonment beyond the statutory maximum solely by reason of their indigency.”). Williams, Tate, and Bearden establish, as Harper suggests, that the state’s ability to deprive someone of a profoundly important interest does not change the nature of the right, nor whether it is deserving of heightened scrutiny when access to it is made to depend on wealth. Moreover, as
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we’ve discussed, the holding in Griffin did not turn on whether there is a fundamental right to an appeal—it could not have, because such a right does not exist. See Griffin, 351 U.S. at 18.
The long and short of it is that once a state provides an avenue to ending the punishment of disenfranchisement—as the voters of Florida plainly did—it must do so consonant with the principles of equal protection and it may not erect a wealth barrier absent a justification sufficient to overcome heightened scrutiny.
Our conclusion that heightened scrutiny applies here is not contrary to the general rule that rational basis scrutiny applies when analyzing felon disenfranchisement or re-enfranchisement schemes. Most classifications in this context will be subject only to rational basis review. Thus, by way of example, a state need only offer a rational basis for distinguishing in re-enfranchisement between those felons currently incarcerated and those who have completed prison terms, or among felons who have committed different kinds of crimes, or even between federal and state felons. See, e.g., Hayden v. Paterson, 594 F.3d 150, 171 (2d Cir. 2010) (upholding under rational basis review a New York constitutional provision that disenfranchised only incarcerated felons and those on parole); Owens, 711 F.2d at 28 (upholding under rational basis review a Pennsylvania law that disenfranchised only incarcerated felons).
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For this reason, our decision to apply heightened scrutiny is not in conflict with the precedent of this Circuit in Shepherd v. Trevino, 575 F.2d 1110 (5th Cir. 1978).11 In Shepherd, the former Fifth Circuit examined a Texas reenfranchisement mechanism and held that rational basis scrutiny applied. There, the Texas Constitution disenfranchised all persons convicted of a felony, subject to exceptions made by the legislature. Id. at 1111. A Texas statute created a mechanism whereby persons convicted of a felony in Texas courts could, after the satisfactory fulfillment of and expiration of probation, return to the court of conviction and invoke the court’s discretionary authority to set aside the conviction and re-enfranchise the offender. Id. at 1112. The Shepherd plaintiffs—who had been convicted in federal court, not in a Texas court—challenged the Texas scheme as violating the Equal Protection Clause. They argued that Texas provided for discretionary court re-enfranchisement for Texas felons but not for federal felons. Id. at 1111. In Shepherd, the court held that this selective reenfranchisement scheme should be evaluated under rational basis scrutiny. Id. at 1114–15. We don’t disagree with that conclusion (nor could we)—we think Shepherd got it right, because the classification did not implicate wealth or any suspect classification. But Shepherd does not control this case because, as we have
11 Decisions by the United States Court of Appeals for the Fifth Circuit made prior to the Court’s split at the close of business on September 30, 1981 are “binding as precedent in the Eleventh Circuit.” Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc).
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explained, Griffin and Bearden mandate that we apply some form of heightened scrutiny when punishment continues for one class and not another simply based on wealth, while Harper applies this same principle to voting.
Nor does Katzenbach v. Morgan compel that we apply rational basis review, as the State suggests. 384 U.S. 641 (1966). In Katzenbach, the Court held that the prohibition on literacy tests as a prerequisite to voting contained in § 4(e) of the Voting Rights Act was a permissible exercise of Congress’s enforcement power under section 5 of the Fourteenth Amendment. Id. at 646–47. It applied rational basis review in holding that the Act’s prohibition on literacy tests for those educated in American schools did not violate the Equal Protection Clause even though it did not extend the rule to those educated in foreign schools. Katzenbach’s application of rational basis review, however, rested entirely on the principle that under the enforcement clause of the Fourteenth Amendment, Congress may tailor remedies to the particular matters it seeks to address—there, states’ denying Puerto Rican U.S. citizens educated in Spanish access to the franchise. The Court in Katzenbach expressly declined to rule on whether the distinction drawn by Congress, pursuant to its enforcement power, would violate the Equal Protection Clause if enacted as a stand-alone measure by a state. See id. at 657 (“[W]e need not decide whether a state literacy law conditioning the right to
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vote on achieving a certain level of education in an American-flag school . . . discriminates invidiously against those educated in non-American-flag schools.”).
Moreover, Katzenbach did not involve disenfranchisement as a criminal punishment grounded on indigency, and thus did not involve the context of this case in which the Harper line of cases, and the Griffin–Williams–Tate–Bearden line of cases counsel in favor of applying heightened scrutiny. In sum, Katzenbach tells us nothing about the level of scrutiny applicable to our review of the State’s LFO requirement.
On the other side of the coin, we also disagree with the district court that this Court’s en banc decision in Johnson controls the resolution of this case. In Johnson, the plaintiffs challenged the constitutionality of Florida’s then-existing voting rights restoration scheme, which consisted solely of discretionary executive clemency, primarily on the grounds that it was racially discriminatory. 405 F.3d at 1217. The plaintiffs also brought a wealth discrimination claim. As to the wealth discrimination claim, they argued that the clemency policy’s distinction between those who had paid their LFOs and those who had not—the former being entitled to have their applications decided on the papers and the latter having to appear for a hearing—violated the Equal Protection Clause. Id. at 1216 n.1.
In a footnote disposing of the wealth discrimination claim, our en banc Court observed that “[a]ccess to the franchise cannot be made to depend on an
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individual’s financial resources,” id. (citing Harper, 383 U.S. at 668), but held that the “requirement of a hearing is insufficient to support the plaintiffs’ claim . . . [b]ecause Florida does not deny access to the restoration of the franchise based on ability to pay,” id. at 1217 n.1. All Johnson held on this subject is that discrimination based on wealth that takes the form of differentiating between reviewing an application on the papers instead of at a hearing does not conflict with Harper. More to the point, because in Johnson there was no constitutionally significant wealth disparity at all, the Court did not subject the State’s policy to any form of scrutiny, at least not explicitly. It does not tell us what level of scrutiny we ought to apply in this case. Thus, we have looked to guidance from the Supreme Court in answering that question.
Quite simply, two strands of Supreme Court law—those embodied in its Griffin–Bearden line of cases outlawing different levels of punishment for similarly situated defendants, solely on account of wealth, and those found in the Harper line of cases underscoring the importance of access to the ballot—run together in this case. These weighty interests are directly implicated and they yield the conclusion that we must examine the Amendment’s impact on the seventeen named plaintiffs through the lens of heightened scrutiny.
iii. Applying heightened scrutiny, the LFO requirement is unconstitutional as applied to those who genuinely cannot pay
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Although Griffin gave us the broad principle of equal treatment in criminal justice without regard to wealth, its progeny has elaborated on the application of heightened scrutiny to laws said to run afoul of Griffin’s command. In Bearden, the Court concluded that revoking probation based on failure to pay a fine that a defendant is unable to pay amounted to unconstitutional wealth discrimination. 461 U.S. at 672–73. The disparity in treatment implicated both equal protection and due process principles, but, the Court said, “[w]hether analyzed in terms of equal protection or due process, the issue cannot be resolved by resort to easy slogans or pigeonhole analysis.” Id. at 666.
The form heightened scrutiny took in Bearden was comprised of four considerations: (1) “the nature of the individual interest affected”; (2) “the extent to which it is affected”; (3) “the rationality of the connection between legislative means and purpose”; and (4) “the existence of alternative means for effectuating the purpose.” Id. at 666–67 (quoting Williams, 399 U.S. at 260 (Harlan, J., concurring) (analyzing a wealth discrimination claim under due process rather than equal protection but reaching the same result as the majority)).12 Taking these one
12 Our own precedent points to the application of a “hybrid analysis of equal protection and due process principles” derived from Bearden when a plaintiff’s claim “rests on an allegation of categorically worse treatment of the indigent.” Walker v. City of Calhoun, 901 F.3d 1245, 1260 (11th Cir. 2018).
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by one, we believe they support a determination that the LFO requirement is unconstitutional as applied to felons who genuinely cannot pay.
First, as we have explained, voting is undoubtedly a weighty interest. See, e.g., Harper, 383 U.S. at 667–68; Reynolds, 377 U.S. at 561–62; Yick Wo, 118 U.S. at 370. Plainly, “the nature of the individual interest affected” weighs strongly in plaintiffs’ favor.
Second, the interest is profoundly affected; with the LFO requirement in place, felons sustain the “deprivation of a meaningful opportunity to enjoy th[e] benefit” of the ability to vote. Rodriguez, 411 U.S. at 20. The defendants argue, however, that felons have three alternative avenues to regain their access to the ballot: (1) by terminating their LFOs “[u]pon the payee’s approval,” as SB 7066 allows, see Fla. Stat. § 98.0751(2)(a)(5)(d)–(e); (2) the completion of community service hours if so converted by a court; and (3) a discretionary grant of clemency by the Executive Clemency Board. We remain unpersuaded.
It is exceedingly unlikely that the first avenue is practically available for most felons. For starters, many felons have had their debts assigned to private collection agencies, which would understandably be loath to voluntarily forgive these debts. And as far as restitution is concerned, it is similarly unlikely that the victims of crime would agree to forgo financial payouts—however unlikely their receipt may be—to allow the people who have victimized them to be able to vote.
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The second avenue is similarly illusory. As the plaintiffs point out, community service conversion is unavailable for those felons whose debts have been converted into civil liens and for those with federal convictions. Moreover, the conversion rate—determined by the district court to be at “low hourly rates”—could tee up a long process for rights-restoration, during which otherwise-eligible felons may miss many opportunities to vote.
The third option could be more promising but is largely illusory as it stands now. Although the Executive Clemency Board just recently revised its procedural requirements to allow a felon to make his case for rights-restoration without paying restitution, we have no evidence of how effective, speedy, or accessible this process will be. What we do know is that the Board’s five-year and seven-year waiting periods before any felon may even seek rights-restoration remain intact, see Fla. R. Exec. Clemency 9, 10 (2020), https://www.fcor.state.fl.us/docs/ clemency/clemency_rules.pdf, and the district court found that Florida’s executive clemency process has historically moved at glacial speed.
All three avenues suffer from a common and basic infirmity—they are entirely discretionary in nature. No one owed money by a felon—whether a collection company or a victim—is required to forgive the debt. No court is required to convert LFOs to community-service hours. And no member of the Clemency Board is required to grant rights restoration. We can hardly call
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pursuing a discretionary grant that at best will take years to receive, if received at all, a suitable alternative. After all, those felons who are able to pay enjoy nearimmediate, automatic re-enfranchisement as of right. None of the alternatives is a viable stand-in for the automatic re-enfranchisement enjoyed by felons whose circumstances are materially similar to those of these plaintiffs except for their wealth. Accordingly, we have little difficulty in concluding that the individual’s weighty interests are profoundly affected.
As for the third Bearden consideration—“the rationality of the connection between legislative means and purpose”—we have already expressed our strong reservations regarding the State’s interest in continuing the disenfranchisement of these plaintiffs even under rational basis review. Under heightened scrutiny, we can readily say that this law fails the test when applied to felons who are genuinely unable to pay. Again, the State has no deterrence interest. These felons have already committed their crimes; we are reviewing the sanction ex-post. The State cannot deter what has already happened.
The State also has no real collection interest as applied to these felons. We agree, as we have already observed, that the State generally has an “interest in the collection of revenues produced by payment of fines.” Williams, 399 U.S. at 238. But as to these plaintiffs, who despite their best efforts are genuinely unable to pay, collection is futile. The State cannot draw blood from a stone. Florida’s
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requirement “obviously does not serve [revenue collection]; the defendant cannot pay because he is indigent.” Tate, 401 U.S. at 399; see also Bearden, 461 U.S. at 670–71. If a felon is truly unable to pay, it makes no sense to assert that he will be incentivized to pay his LFOs with money that he does not have. The Supreme Court concluded that this kind of incentive was powerless even in the face of barring the ability to marry; surely the State cannot argue that the incentive is more powerful here. See Zablocki, 434 U.S. at 389. To whatever degree the State has a collection interest in the class as a whole, it surely does not as applied to felons who cannot pay.
Nor does the State have a readily identifiable interest in protection of the ballot box, because, as the Supreme Court has made clear, “[v]oter qualifications have no relation to wealth nor to paying or not paying this or any other tax.” Harper, 383 U.S. at 666. Two hypothetical felons here have committed the same crime, with identical culpability, yet one is deemed more qualified to vote based on ability to pay. Harper demands that we reject such a classification.
Finally, the State maintains an abstract interest in punishment for punishment’s sake. The question here is not whether states may punish felons with disenfranchisement—they can. See Richardson, 418 U.S. at 56. The question, as we see it, is whether a state may continue to punish one felon but not another, after opening the door to relief. Punishment must be assigned in some proportion to
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culpability or it is merely vindictive. Here, the plaintiffs are not punished in proportion to their culpability but to their wealth—equally guilty but wealthier felons are offered access to the ballot while these plaintiffs continue to be disenfranchised, perhaps forever. Thus, the third Bearden consideration falls in the plaintiffs’ favor.
Turning finally to the fourth consideration—“the existence of alternative means for effectuating the purpose”—we believe that the State has more than adequate ways to promote its interest in debt collection. As the Supreme Court explained in Zablocki, “the State already has numerous other means for exacting compliance with [financial] obligations, means that are at least as effective as the instant statute’s and yet do not impinge upon” the right to vote. 434 U.S. at 389. Under Florida law, the State can refer debts to collection agencies, garnish wages, and conduct civil forfeiture. See Fla. Stat. §§ 28.246(6), 77.0305, 932.704. The Supreme Court approved the use of similar procedures in Zablocki. 434 U.S. at 389–90; see also Bredesen, 624 F.3d at 757 (Moore, J., dissenting).
In short, applying Bearden’s heightened scrutiny, we have little difficulty in concluding that the LFO requirement is likely unconstitutional as applied to these seventeen plaintiffs.
In a final attempt to defeat this conclusion, the State argues that we cannot hold that the LFO requirement violates the Equal Protection Clause without proof
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of discriminatory intent, a proposition for which it cites our race discrimination cases. See Hand, 888 F.3d at 1210 (“Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.” (quoting Hunter, 471 U.S. at 227–28)). The principle derives from Washington v. Davis, 426 U.S. 229, 239 (1976), a race discrimination case. But this is not a race discrimination case. The plaintiffs have not so much as suggested that the LFO requirement embodied in Amendment 4 as applied should be struck down either because it was purposely designed for reasons of race or that it has a racially disproportionate effect. This is a wealth discrimination case. And the Supreme Court has squarely held that Davis’s intent requirement is not applicable in wealth discrimination cases. See M.L.B., 519 U.S. at 126–27 (rejecting, in the context of a wealth discrimination claim, the argument that Washington v. Davis requires proof of discriminatory intent).
Moreover, the Supreme Court has never required proof of discriminatory intent in a wealth discrimination case, see Mayer, 404 U.S. 189; Tate, 401 U.S. 395; Roberts, 389 U.S. 40; Douglas, 372 U.S. 353; Griffin, 351 U.S. 12, including in cases that post-date Davis, see Bearden, 461 U.S. 660; Zablocki, 434 U.S. 374; see also M.L.B., 519 U.S. at 127 (“[U]nder respondents’ reading of Washington v. Davis, our overruling of the Griffin line of cases would be two decades overdue.”). The race discrimination cases cited by the State are inapposite. The plaintiff’s
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failure to allege or establish discriminatory intent was not a barrier to the Court’s holding wealth discrimination unconstitutional in Bearden, and it is not here.
B. Irreparable Injury Having concluded that these plaintiffs are substantially likely to succeed on the merits, we are also required to consider whether they will suffer irreparable injury. Since the preliminary injunction factors other than the likelihood of success on the merits turn on equitable considerations and factual findings, we owe substantial deference to the district court’s conclusions. See BellSouth Telecomms., Inc., 425 F.3d at 968. The district court did not abuse its discretion in finding that the plaintiffs will suffer an irreparable injury if they are precluded by the enforcement of Amendment 4 from voting in an election in which they were constitutionally entitled to vote. An injury is “irreparable if it cannot be undone through monetary remedies.” Scott v. Roberts, 612 F.3d 1279, 1295 (11th Cir. 2010) (quotation omitted). Casting a vote has no monetary value. It is nothing other than the opportunity to participate in the collective decisionmaking of a democratic society and to add one’s own perspective to that of his or her fellow citizens. Each vote provides a unique opportunity to do that. No compensation a court can offer could undo that loss. The denial of the opportunity to cast a vote that a person may otherwise be entitled to cast—even once—is an irreparable harm.
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Indeed, several of our sister circuits have similarly concluded that missing the opportunity to vote in an election is an irreparable harm for the purposes of a preliminary injunction. See, e.g., League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 247 (4th Cir. 2014) (“[O]nce the election occurs, there can be no do-over and no redress. The injury to these voters is real and completely irreparable if nothing is done to enjoin this law.”); Obama for Am. v. Husted, 697 F.3d 423, 436 (6th Cir. 2012) (“A restriction on the fundamental right to vote . . . constitutes irreparable injury.” (citing Williams v. Salerno, 792 F.2d 323, 326 (2d Cir. 1986))). The district court did not abuse its discretion in agreeing.
C. Balance of Hardship Likewise, the district court did not abuse its discretion in finding that the injury to the plaintiffs outweighs the damage to the State. The State argues that it has four discrete interests that weigh against the issuance of a preliminary injunction: (1) a general concern in enforcing its statutes and the integrity of the electoral process; (2) if the injunction were expanded, it “could change the outcome of the upcoming elections”; (3) the difficulty and cost of administering compliance with the court’s order; and (4) the expense associated with “making individual determinations about the socioeconomic status of hundreds of thousands of individuals,” which would all be for naught if the State ends up prevailing.
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We think these interests, while significant, are unavailing as compared to the plaintiffs’ interest in their opportunity to exercise the core democratic right of voting. In the first place, although we have no doubt that the State has a weighty interest in upholding its statutes and ensuring the integrity of the electoral process, these interests are stated at too high an order of abstraction to be persuasive. The State’s broad interest in enforcing its statutes, standing alone, would be applicable any time a statute’s constitutionality is challenged and a preliminary injunction issued against its enforcement. The State’s argument in this case, if it carried the day, would prove too much—hardly any preliminary injunction could ever issue. C.f. Lebron v. Sec’y, Fla. Dep’t of Children & Families, 710 F.3d 1202, 1217 (11th Cir. 2013) (affirming a preliminary injunction enjoining the State from enforcing one of its laws on constitutional grounds).
Second, the State’s interest in avoiding altered election results—which it posits would happen if the injunction were expanded—is entirely speculative. For one, the preliminary injunction itself requires the State to allow only seventeen plaintiffs to vote. As close as Florida elections may be, the votes of these seventeen are vanishingly unlikely to be outcome dispositive. There is similarly no evidence in the record at this stage regarding how many felons would in fact vote nor that the population of ex-felons is a cohesive political unit. In any event, as the district court observed, the State’s interest in preventing votes by ineligible voters
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is no greater than its interest in allowing votes by eligible voters. The plaintiffs’ concrete, personal, and measurable injury in the denial of access to the franchise, if in error, far outweighs the State’s concerns—which could only ever be speculative—that the outcome of a particular election was determined by the influence of felon voters ultimately found to be ineligible.
Third, the State’s remaining two interests relate to the administrative burden that it will shoulder if the preliminary injunction is upheld or expanded. We acknowledge that compliance with the constitutional principle of this case may entail an administrative burden. We also recognize, however, that the question of how substantial a burden the district court’s injunction will be is largely one of Florida’s own making. The injunction does not require the State to employ any particular procedures, nor even to adopt a particular definition of “genuine inability to pay.” To comply with the legal principle behind the injunction, the State need make only a good faith effort to ensure that no felon otherwise eligible to vote under Amendment 4 is prevented from doing so because of his or her genuine inability to pay LFOs. In defining “genuine inability to pay,” the State is free to consider any reasonable factors including current assets and liabilities, income, and bona fide efforts the felon has made to pay.
We too leave the procedural implementation of the preliminary injunction to the State itself, but note that the State has a range of options available that do not
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appear unduly burdensome in light of the significance of the plaintiffs’ interest. Indeed, Florida’s voter registration statute already allows for individualized determinations of eligibility if a Supervisor of Elections or the Department of State concludes that a voter is ineligible. See Fla. Stat. §§ 98.045(1), 98.0755. Moreover, it is not as though this is the first time the State will be making individualized determinations about a criminal defendant’s financial situation on a large scale. The State already has a procedure by which criminal defendants can attest to their income and assets in order to determine whether they qualify for a public defender. See Fla. Stat. § 27.52(1)(a); cf. Fla. Housing Fin. Corp. R. 6721.002(70) (defining, for subsidized housing eligibility, “Lower Income Residents” as families whose incomes do not exceed either 50% or 60% of the area median income); Fla. Stat. § 414.085(1)(a) (limiting eligibility for Florida’s temporary cash assistance program to families with gross income lower than 185% of the federal poverty level). Moreover, and perhaps most important, at the end of the day, it is Florida’s voters who have chosen to automatically re-enfranchise the State’s felons and that decision has necessarily created an administrative burden on the State.
By leaving to the State substantial discretion in how to comply with the preliminary injunction, the district court’s order respects the State’s sovereignty. See Democratic Exec. Comm., 915 F.3d at 1331 (noting that where a preliminary
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injunction, “instead of throwing out the plausibly legal with the constitutionally problematic . . . narrowly tailored its relief to home in on the one limited aspect . . . [that] unduly burdened . . . [the] right to vote,” “rather than undermining Florida’s sovereignty, . . . actually respected it”); see also Ga. Muslim Voter Project v. Kemp, 918 F.3d 1262, 1276 (11th Cir. 2019) (mem.) (Jill Pryor, J., concurring) (affirming an injunction that “borrowed heavily from the processes already in place”).
In sum, we think that the harms the State may suffer as a result of the preliminary injunction are demonstrably outweighed by those imposed on the plaintiffs. See Fish v. Kobach, 840 F.3d 710, 755 (10th Cir. 2016) (noting that there is no contest between denial of access to the ballot and a state’s administrative burden). At any rate, on this record we do not believe we could fairly say that the district court abused its discretion in so concluding.
D. Public Interest Finally, the district court did not abuse its discretion in concluding that the public interest favors the preliminary injunction. The “cautious protection of the Plaintiffs’ franchise-related rights is without question in the public interest.” Charles H. Wesley Educ. Found., Inc. v. Cox, 408 F.3d 1349, 1355 (11th Cir. 2005). We have also held that the knowledge that otherwise-eligible voters were not counted “would be harmful to the public’s perception of the election’s
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legitimacy,” and that “the public interest is served when constitutional rights are protected.” Democratic Exec. Comm., 915 F.3d at 1327.
Ultimately, our conclusion that the plaintiffs have a substantial likelihood of success on the merits disposes of this question in short order. The public, of course, has every interest in ensuring that their peers who are eligible to vote are able to do so in every election. See Husted, 697 F.3d at 437 (“The public interest . . . favors permitting as many qualified voters to vote as possible.”). The preliminary injunction does no more than safeguard that interest.
E. Severability Finally, the State says that to the extent the LFO requirement as applied to the plaintiffs violates the Equal Protection Clause, this application cannot be severed from Amendment 4 as a whole.13 Therefore, rather than affirming the partial injunction granted by the district court, the State argues that we must enjoin Amendment 4 as a whole.
13 It may arguably be premature for us to reach the issue of severability in this preliminary injunction posture. In Scott, we preliminarily enjoined the State from enforcing a provision of the Florida Election Campaign Financing Act. 612 F.3d at 1281–82. With regard to severability, we noted that “[c]onsideration of the issue of severance might be premature because we will not invalidate—only preliminarily enjoin—the excess subsidy provision.” Id. at 1297. Nonetheless, we evaluated the severability of the provision and concluded that “we have no problem concluding that the excess spending subsidy is severable” from the Act as a whole. See id. We similarly have no problem so concluding here. Accordingly, we consider the merits of the State’s severability argument.
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Plainly, the severability of state constitutional provisions is “a matter of state law.” Leavitt v. Jane L., 518 U.S. 137, 139 (1996). “Florida law clearly favors (where possible) severance of the invalid portions of a law from the valid ones.” Solantic, LLC v. City of Neptune Beach, 410 F.3d 1250, 1269 n.16 (11th Cir. 2005) (quoting Coral Springs Street Sys., Inc. v. City of Sunrise, 371 F.3d 1320, 1347 (11th Cir. 2004)). Indeed, Florida’s severance doctrine is “designed to show great deference to the legislative prerogative to enact laws,” Schmitt v. State, 590 So. 2d 404, 415 (Fla. 1991), by “recognizing the obligation of the judiciary to uphold the constitutionality of legislative enactments where it is possible to strike only the unconstitutional portions,” Ray v. Mortham, 742 So. 2d 1276, 1280 (Fla. 1999) (citing State v. Calhoun County, 170 So. 883, 886 (Fla. 1936)). Florida law thus adopts a strong presumption of severability, and squarely places the burden on the party challenging severability. See Ray, 742 So. 2d at 1281 (noting that, because the purpose of the severability doctrine is “to preserve the constitutionality of enactments where it is possible to do so,” the “burden is properly placed on the challenging party”).
Under Florida law, “the remainder of the act [may] stand” where “a part of a statute [has been] declared unconstitutional” so long as four requirements are met:
(1) the unconstitutional provisions can be separated from the remaining valid provisions, (2) the legislative purpose expressed in the valid provisions can be accomplished independently of those which are void, (3) the good and the bad features are not so inseparable in substance
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that it can be said that the Legislature would have passed the one without the other and, (4) an act complete in itself remains after the invalid provisions are stricken. Smith v. Dep’t of Ins., 507 So. 2d 1080, 1089–90 (Fla. 1987) (quoting Cramp v. Bd. of Pub. Instruction of Orange Cty., 137 So. 2d 828, 830 (Fla. 1962)). This test also applies to state constitutional provisions. See Ray, 742 So. 2d at 1281. And contrary to plaintiffs’ arguments, this sort of severability analysis applies in asapplied constitutional challenges. See, e.g., Am. Optical Corp. v. Spiewak, 73 So. 3d 120, 133 n.2 (Fla. 2011). The first and fourth requirements are not challenged by the State. See Women’s Emergency Network v. Bush, 323 F.3d 937, 949 (11th Cir. 2003) (noting that the first and fourth elements are presumed to be satisfied “in almost any case”). The only provision enjoined by the district court, as applied to the plaintiffs, is the application of the phrase “all terms of sentence” to require payment of legal financial obligations to those genuinely unable to pay them. This application can obviously be excised, leaving Amendment 4 as a complete act. Indeed, we know that this is true because before the Florida Supreme Court issued an advisory opinion, and as noted by the district court, there was a plausible textual argument that this application did not fall within the Amendment’s language at all. The State focuses its challenge on the second and third factors. The relevant inquiry is “whether the overall legislative intent is still accomplished without the
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invalid provisions.” State v. Catalano, 104 So. 3d 1069, 1080–81 (Fla. 2012) (citing Martinez v. Scanlan, 582 So. 2d 1167, 1173 (Fla. 1991)). It is the State’s burden to show that Amendment 4 would not have been adopted absent the unconstitutional application of the LFO requirement to those who cannot pay. See Ray, 742 So. 2d at 1281. And Florida law is clear that a party that does no more than “cast doubt on whether the amendment would have passed” without its unconstitutional application has not carried its burden. Id.
On this preliminary record, that is all the State has done. It simply argues that the purpose of Amendment 4 was not merely to re-enfranchise felons but to reenfranchise felons who have “paid their debt to society,” and that the latter qualification was a critical prerequisite to the Amendment’s passing. This strikes us as a plausible characterization of the evidence in the record as far as it goes, but again, the State’s assertion in this regard is speculative. It is altogether unclear whether the people of Florida would have voted differently if they knew that the Amendment they adopted could not be constitutionally applied to those felons who were genuinely unable to pay despite their good faith efforts to do so. Nevertheless, the notion that the district court’s narrow preliminary injunction entirely vitiates the conditioning of access to the franchise on completion of “all terms of sentence” is unpersuasive. The district court’s injunction still requires felons to complete their carceral sentences and parole or probation before
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becoming eligible to vote. Moreover, to the extent a felon can pay LFOs, he or she
must.14 In short, it is still the State’s burden to persuade us that enough Florida
voters would have voted differently had they known that Amendment 4 could not
be used to exclude these plaintiffs who had otherwise completed their sentences
but were genuinely unable to pay their LFOs from voting. Absent some concrete
evidence or even a persuasive argument to that effect, we conclude the
unconstitutional application is severable.15
IV. CONCLUSION
We affirm the district court’s preliminary injunction enjoining the
defendants (with the exception of the Governor and the Supervisor of Orange
County) from preventing the plaintiffs from voting based solely on their genuine
inability to pay legal financial obligations.
14 Furthermore, the district court’s injunction makes no change to any felon’s obligation to pay all outstanding LFOs; in other words, a felon voting pursuant to the preliminary injunction will still have the obligation to pay all outstanding LFOs. 15 We note that the question of severability appears to be a mixed question of law and fact under Florida law. See Jones v. Smith, 474 F. Supp. 1160, 1168 (S.D. Fla. 1979) (“The severability of any particular portion of a statute is a mixed question of law and fact to be determined by the trial court with appropriate review of the conclusion in the appellate court.” (citing City Council of City of N. Miami Beach v. Trebor Constr. Corp., 254 So. 2d 51 (Fla. Dist. Ct. App. 1971))). As such, the district court may be better situated to decide this question in the first instance on a full record. See Garrett, 800 F.2d at 1539. While it seems to us obvious on this preliminary record that the application in question is severable, nothing in this opinion precludes the district court from reaching a different conclusion after a full trial on the merits. See Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981) (“[F]indings of fact and conclusions of law made by a court granting a preliminary injunction are not binding at trial on the merits.” (citations omitted)).
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AFFIRMED.16
16 In light of our decision, the State’s motion to stay pending appeal is DENIED as moot. 78

Case: 19-14551 Date Filed: 02/19/2020 Page: 1 of 1

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

ELBERT PARR TUTTLE COURT OF APPEALS BUILDING 56 Forsyth Street, N.W. Atlanta, Georgia 30303

David J. Smith Clerk of Court

February 19, 2020

MEMORANDUM TO COUNSEL OR PARTIES
Appeal Number: 19-14551-GG Case Style: Kelvin Jones, et al v. Governor of Florida, et al District Court Docket No: 4:19-cv-00300-RH-MJF

For rules and forms visit www.ca11.uscourts.gov

This Court requires all counsel to file documents electronically using the Electronic Case Files ("ECF") system, unless exempted for good cause. Enclosed is a copy of the court's decision filed today in this appeal. Judgment has this day been entered pursuant to FRAP 36. The court's mandate will issue at a later date in accordance with FRAP 41(b).

The time for filing a petition for rehearing is governed by 11th Cir. R. 40-3, and the time for filing a petition for rehearing en banc is governed by 11th Cir. R. 35-2. Except as otherwise provided by FRAP 25(a) for inmate filings, a petition for rehearing or for rehearing en banc is timely only if received in the clerk's office within the time specified in the rules. Costs are governed by FRAP 39 and 11th Cir.R. 39-1. The timing, format, and content of a motion for attorney's fees and an objection thereto is governed by 11th Cir. R. 39-2 and 39-3.

Please note that a petition for rehearing en banc must include in the Certificate of Interested Persons a complete list of all persons and entities listed on all certificates previously filed by any party in the appeal. See 11th Cir. R. 26.1-1. In addition, a copy of the opinion sought to be reheard must be included in any petition for rehearing or petition for rehearing en banc. See 11th Cir. R. 35-5(k) and 40-1 .

Counsel appointed under the Criminal Justice Act (CJA) must submit a voucher claiming compensation for time spent on the appeal no later than 60 days after either issuance of mandate or filing with the U.S. Supreme Court of a petition for writ of certiorari (whichever is later) via the eVoucher system. Please contact the CJA Team at (404) 335-6167 or cja_evoucher@ca11.uscourts.gov for questions regarding CJA vouchers or the eVoucher system.

Pursuant to Fed.R.App.P. 39, costs taxed against appellants.

Please use the most recent version of the Bill of Costs form available on the court's website at www.ca11.uscourts.gov.

For questions concerning the issuance of the decision of this court, please call the number referenced in the signature block below. For all other questions, please call Joseph Caruso, GG at (404) 335-6177.
Sincerely,
DAVID J. SMITH, Clerk of Court
Reply to: Jeff R. Patch Phone #: 404-335-6151

OPIN-1A Issuance of Opinion With Costs

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA TALLAHASSEE DIVISION

KELVIN LEON JONES et al.,

Plaintiffs, v.

CONSOLIDATED CASE NO. 4:19cv300-RH/MJF

RON DeSANTIS et al.,

Defendants.

_________________________________________/

ORDER STAYING THE PRELIMINARY INJUNCTION IN PART

These consolidated cases arise from “Amendment 4,” a voter-initiated amendment to the Florida Constitution that automatically restores the right of most felons to vote, but only upon completion of all terms of sentence. A preliminary injunction was entered on October 18, 2019 in favor of the individual plaintiffs against the Florida Secretary of State and the Supervisors of Elections of the counties where the plaintiffs are domiciled. The preliminary injunction was narrower than the plaintiffs requested.

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The Secretary, joined by the Governor, has appealed. They have moved for a stay pending appeal. The United States Court of Appeals for the Eleventh Circuit has ordered expedited briefing and has set oral argument for January 28, 2020.
The preliminary injunction has two parts. First, an enjoined defendant must not take any action that both (a) prevents a plaintiff from applying or registering to vote and (b) is based only on failure to pay a financial obligation that the plaintiff asserts the plaintiff is genuinely unable to pay. Second, an enjoined defendant must not take any action that both (a) prevents a plaintiff from voting and (b) is based only on failure to pay a financial obligation that the plaintiff shows the plaintiff is genuinely unable to pay. This means, in substance, that a plaintiff who asserts inability to pay can register, and a plaintiff who shows inability to pay can vote.
This order stays the second part of the injunction but not the first. In the unusual circumstances of this case, a stay of the first part of the injunction would interfere with the ability of the plaintiffs to exercise their constitutional rights, even if the Eleventh Circuit rules in their favor, and would interfere with the ability of state officials to comply with any such ruling.
I. Background Even in our highly partisan age, the fundamental principles governing elections should garner unequivocal support from both sides. Every legally eligible
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voter should be allowed to vote. Those who are ineligible should not be allowed to vote. The side that gets the most legally cast votes should win. Steps can and should be taken to ensure the regularity and integrity of the process—voters can be required to register, for example, and to vote in an authorized manner—but the burdens should not be so great that they deter eligible citizens from voting or skew the process.
It would be hard for anyone of any political stripe to contest these fundamental principles. In our highly partisan age, though, these principles sometimes garner only lip service. There are those who would suppress legal votes by making it harder for some to register, who would deter eligible voters by threatening unfounded prosecutions, who would close early voting on days more popular with some than with others, who would make polling places less accessible for some than for others, and who would make voters in some precincts but not others stand in long lines on election day. On the other side, there are those who would count votes thought likely to favor their side, legal or not, including, for example, when an ostensible voter’s signature does not match the signature on file, even when given an opportunity to cure. There are those who would extend or curtail the counting of votes based not on neutral principles but on who was ahead or behind at the time.
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The role of the federal courts in election cases is not to supplant the political process but to ensure that it functions consistently with the United States Constitution. Emotions run hot on both sides. But the level of professionalism and candor expected of the attorneys is not lower—if anything it is higher—because emotions run hot and the stakes are high. Ignoring or misrepresenting precedent or the record does not advance one’s cause.
II. The Standard for a Stay Pending Appeal A four-part test governs stays pending appeal: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Hilton v. Braunskill, 481 U.S. 770, 776 (1987); see also Democratic Exec. Comm. of Fla. v. Lee, 915 F.3d 1312, 1317 (11th Cir. 2019) (applying the same test); Venus Lines Agency v. CVG Industria Venezolana De Aluminio, 210 F.3d 1309, 1313 (11th Cir. 2000) (same). III. Likelihood of Success on the Merits The October 18 order that granted the preliminary injunction fully addressed likelihood of success on the merits. The order followed an Eleventh Circuit decision squarely addressing the precise issue in this case: the ability of the State of Florida to condition restoration of a felon’s right to vote on payment of amounts
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the felon is genuinely unable to pay. The Eleventh Circuit summed it up nicely: “Access to the franchise cannot be made to depend on an individual’s financial resources.” Johnson v. Governor of Florida, 405 F.3d 1214, 1216-17 n.1 (11th Cir. 2005) (en banc) (citation omitted). The preliminary injunction scrupulously followed Johnson.
This order adds just two comments. A
Prior to issuance of the preliminary injunction, the Governor and Secretary, briefing the issues in lock step, adamantly opposed the plaintiffs’ claims across the board. Immediately after entry of the preliminary injunction, however, the Governor agreed, or at least appeared to agree, with the ruling.
The Governor issued this statement: “Today’s ruling affirms the Governor’s consistent position that convicted felons should be held responsible for paying applicable 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.”1 The Governor has acknowledged on the record in this court that this was and is an accurate statement of his position. Hr’g of Dec. 3, 2019 Tr., ECF No.
1 See Lawrence Mower, Being poor shouldn’t stop Florida felons from voting, judge rules in Amendment 4 case, Tampa Bay Times (Oct. 19, 2019), https://www.tampabay.com/florida-politics/buzz/2019/10/19/being-poor-shouldntstop-florida-felons-from-voting-judge-rules-in-amendment-4-case/ (emphasis added).
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239 at 5-8. The preliminary injunction requires the state to do nothing more than provide an avenue for individuals unable to pay as a result of true financial hardship—precisely the result the Governor touted as his “consistent position.”
The October 18 order sets out substantial authority supporting this result. B
In their motion to stay, the Governor and Secretary fault the October 18 order for not quoting enough of Johnson. It is a curious criticism.
First, the order accurately quoted Johnson’s entire discussion of whether a state can deny restoration of a felon’s right to vote based on failure to pay amounts the felon is unable to pay—the precise issue underlying the preliminary injunction. Johnson said the right to vote “cannot be made to depend on an individual’s financial resources.” Johnson, 405 F.3d at 1216 n.1.
The October 18 order did not quote this additional Johnson statement: “we say nothing about whether conditioning an application for clemency on paying restitution would be an invalid poll tax.” Id. A poll tax, of course, is unconstitutional regardless of ability to pay. Whether a person can be required to pay a sum as a condition of voting, regardless of ability to pay, is a different issue from whether a person can be denied the right to vote for failing to pay an otherwise-proper exaction that the person is genuinely unable to pay. The October 18 order turned on the latter issue, not the former, so the order quoted Johnson’s
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discussion of the latter issue, not the former. When it issued Johnson, the Eleventh Circuit surely understood the difference between the Fourteenth and TwentyFourth Amendments and between a poll-tax claim and an inability-to-pay claim. When I issued the October 18 order, I knew the difference, too.
Second, the criticism of the October 18 order’s omission of one sentence from Johnson is especially curious in light of the Governor’s and Secretary’s treatment of Johnson prior to issuance of the October 18 order. The plaintiffs prominently and repeatedly quoted Johnson in their preliminary-injunction brief. See, e.g., Pls.’ Mem., ECF No. 98-1 at 44, 50, 52. In their brief in response, the Governor and Secretary included the decision in a string-cite on a settled principle and otherwise ignored Johnson altogether. See Defs.’ Resp., ECF No. 132 at 3. In opening statement at the preliminary-injunction hearing, the Governor said that Johnson “in no uncertain terms” ruled that it was constitutional for Florida to condition restoration of the right to vote on payment of financial obligations—an incomplete, if not downright inaccurate, description of Johnson. Hr’g of Oct. 7, 2019 Tr., ECF No. 204 at 14. Having made no effort to come to grips with Johnson in advance, the Governor’s and Secretary’s newfound criticism of the October 18 order rings hollow.
What matters now, of course, is not how well these issues were briefed or how well the October 18 order was written, but the likelihood of success on appeal.
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Because I believe Johnson squarely addresses the controlling issue and that the Eleventh Circuit will adhere to the law of the circuit—the Eleventh, perhaps more rigorously than any other court in the country, follows its own prior decisions—I believe the plaintiffs, not the Governor and Secretary, are likely to prevail on appeal.
IV. Irreparable Injury and the Public Interest The second, third, and fourth factors governing a stay pending appeal require a rigorous analysis of what the preliminary injunction does and does not require and what will happen if a stay is or is not entered. These, more than likelihood of success on the merits, are the critical factors on the stay issue here. As set out above, the preliminary injunction has two parts. First, a plaintiff who asserts inability to pay can register to vote. Second, a plaintiff who shows inability to pay can vote. The stay analysis is markedly different for the two parts of the injunction. A. Registration First, registration. If this part of the injunction remains in force and is not stayed, a plaintiff who has already registered (as some have) will be allowed to stay on the voter roll, and a plaintiff who has not yet registered will be able to do so. If, prior to an election, the Eleventh Circuit affirms the preliminary injunction, the plaintiff will be in position to vote on a showing of genuine inability to pay (the
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subject of the second part of the preliminary injunction). If, on the other hand, the Eleventh Circuit reverses the preliminary injunction, the plaintiff will not be allowed to vote and will instead be removed from the roll. The only harm will have been administrative inconvenience. Regardless of the Eleventh Circuit’s ruling, nobody will have suffered irreparable harm. The fundamental principle set out above will be honored: those eligible to vote will be allowed to do so; those who are ineligible will not. The side that gets the most lawful votes will win.
If, on the other hand, this part of the injunction is stayed, a plaintiff who has not yet registered may be prevented from doing so, and a plaintiff who has already registered may be removed from the roll. This may preclude an eligible plaintiff from voting even if the Eleventh Circuit affirms the preliminary injunction. The explanation is this. Florida requires registration 29 days before an election. See Fla. Stat. § 97.055(1)(a). The next major election is the presidential primary on March 17, 2020. The deadline to register to vote in that election is February 18. If this part of the preliminary injunction is stayed, then even if the Eleventh Circuit affirms the preliminary injunction immediately after the January 28 oral argument, the plaintiffs will have little time left to register to vote in the March 17 primary. If a stay is entered and the Eleventh Circuit affirms the preliminary injunction just three weeks after the oral argument, it will be too late—the plaintiffs will be constitutionally entitled to vote, but the deadline to register will have passed. The
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same will be true if the Eleventh Circuit ruling comes more than three weeks after the oral argument. As a result, the plaintiffs will suffer irreparable harm: the denial of their right to vote. Or perhaps an injunction will be entered requiring the Supervisors to allow them to vote even though they failed to register on time—a constitutionally permissible result, perhaps, but not one that a rational decisionmaker would plan its way into.
The public interest lies primarily in honoring the fundamental principle that those who are eligible should be allowed to vote and those who are ineligible should not be allowed to vote. Leaving in place the part of the preliminary injunction that allows registration serves this purpose. Allowing a plaintiff to register, without more, will not cause irreparable harm to anyone. If it turns out the preliminary injunction was wrong, the Supervisors and the Secretary will have suffered an administrative burden, but not much of one, and in any event, this is not irreparable harm. And if it turns out the preliminary injunction was right, an administrative burden will have been avoided—registrations will have been allowed in the ordinary course rather than in a rush at or even after the deadline.
In reaching these conclusions, I have not overlooked the possibility that if the Eleventh Circuit reverses the preliminary injunction, a plaintiff who has registered may attempt to vote illegally. At least for the 17 plaintiffs directly affected by the preliminary injunction, the risk seems slight; it would be a brazen
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plaintiff who attempted to vote anyway, and an incompetent Secretary or Supervisor who allowed it to happen. In any event, a felon who would defy an Eleventh Circuit ruling might well deny a stay order. Eliminating dishonesty is a separate problem, more imaginary than real, that has little if any relevance to the stay issue.
B. Voting The analysis is different for voting. If a plaintiff is allowed to vote but it turns out the plaintiff is ineligible, the State will suffer irreparable harm, and the public interest will not be served. The public interest in the integrity of elections outstrips, though just barely, the interest of an individual plaintiff in voting. This order stays the part of the preliminary injunction that allows a plaintiff to vote. But this order also limits the stay. The stay will expire on February 11, 2020, two weeks after the scheduled oral argument. By that point, if this case proceeds like most others, the Eleventh Circuit panel will have at least a tentative view of the likely outcome. That court will be far better positioned than this one to decide whether the preliminary injunction’s voting provisions should be allowed to take effect. V. Conclusion For these reasons, IT IS ORDERED:
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1. The motion to stay, ECF No. 234, is granted in part and denied in part. 2. Paragraphs 4 and 7 of the preliminary injunction, which deal with voting, see ECF No. 207 at 54 ¶ 4 & at 55 ¶ 7, are stayed until the earlier of (a) issuance of an opinion of the United States Court of Appeals for the Eleventh Circuit affirming the preliminary injunction or dismissing the Secretary’s appeal, regardless of whether the mandate has issued, or (b) February 11, 2020. 3. The remainder of the preliminary injunction is not stayed and thus remains in force. SO ORDERED on December 19, 2019.
s/Robert L. Hinkle United States District Judge
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA TALLAHASSEE DIVISION

KELVIN LEON JONES et al., Plaintiffs,
v. RON DeSANTIS et al.,
Defendants. ______________________________/

CONSOLIDATED CASE NO. 4:19cv300-RH/MJF

ORDER CERTIFYING A CLASS AND SUBCLASS

These consolidated cases arise from “Amendment 4,” a voter-initiated amendment to the Florida Constitution that automatically restores the right of most felons to vote, but only upon completion of all terms of sentence. Under a Florida statute and opinion of the Florida Supreme Court, “all terms of sentence” means not only imprisonment and supervision but also fines, restitution, and other financial obligations imposed as part of a sentence.
The plaintiffs assert that conditioning the ability to vote on payment of money is unconstitutional both across the board and more specifically as applied to felons who are genuinely unable to pay. The plaintiffs in one of the cases—the

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“Raysor plaintiffs”—have moved to certify a class and subclass corresponding with the scope of the claims. The proposed class consists of felons who would be eligible to vote but for unpaid financial obligations; the proposed class is not limited to those unable to pay. The proposed subclass consists of felons who would be eligible to vote but for a financial obligation the felon is genuinely unable to pay.
I. Background Florida’s Constitution allows voter-initiated amendments. In 2018, Florida voters passed Amendment 4, which added a provision to the Florida Constitution automatically restoring the voting rights of some—not all—felons. The new provision became effective on January 8, 2019 and was codified as part of Florida Constitution article VI, section 4. The full text of section 4, with the new language underlined, states:
(a) No person convicted of a felony, or adjudicated in this or any other state to be mentally incompetent, shall be qualified to vote or hold office until restoration of civil rights or removal of disability. Except as provided in subsection (b) of this section, any disqualification from voting arising from a felony conviction shall terminate and voting rights shall be restored upon completion of all terms of sentence including parole or probation. (b) No person convicted of murder or a felony sexual offense shall be qualified to vote until restoration of civil rights. Fla. Const. art. VI, § 4 (emphasis added).
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The Florida Legislature adopted a statute—colloquially known as “SB7066”—that purports to implement Amendment 4. SB7066 explicitly provides that “completion of all terms of sentence” under Amendment 4 includes payment of all financial obligations imposed as part of the sentence—that is, “contained in the four corners of the sentencing document.” Fla. Stat. § 98.0751(2)(a). SB7066 also explicitly provides that this includes financial obligations that the sentencing court has converted to a civil lien. Id. SB7066 became effective on July 1, 2019.
On June 28, 2019, the Raysor plaintiffs filed a four-count complaint against the Florida Secretary of State asserting the financial-obligations requirement discriminates against those unable to pay in violation of the Fourteenth Amendment (count one); imposes a poll tax or other tax in violation of the Twenty-Fourth Amendment (count two); is void for vagueness (count three); and denies procedural due process (count four). The complaint was later amended to add a claim under the National Voter Registration Act (count five). The case has been consolidated with four others that also challenge the requirement to pay money as a condition of reenfranchisement.
After an evidentiary hearing, a preliminary injunction was entered on October 18, 2019 in favor of all the individual plaintiffs against the Florida Secretary of State and the Supervisors of Elections of the counties where the individual plaintiffs are domiciled. The preliminary injunction has two parts. First,
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an enjoined defendant must not take any action that both (a) prevents a plaintiff from applying or registering to vote and (b) is based only on failure to pay a financial obligation that the plaintiff asserts the plaintiff is genuinely unable to pay. Second, an enjoined defendant must not take any action that both (a) prevents a plaintiff from voting and (b) is based only on failure to pay a financial obligation that the plaintiff shows the plaintiff is genuinely unable to pay.
This means, in substance, that a plaintiff who asserts inability to pay can register, and a plaintiff who shows inability to pay can vote. The injunction specifically provided that it did not prevent the Secretary from notifying the appropriate Supervisor of Elections that a plaintiff has an unpaid financial obligation that will make the plaintiff ineligible to vote unless the plaintiff shows the plaintiff is genuinely unable to pay the financial obligation. The United States Court of Appeals for the Eleventh Circuit affirmed the injunction. See Jones v. Governor of Fla., 950 F.3d 795 (11th Cir. 2020).
The Raysor plaintiffs have moved for class certification, but only for purposes of their Twenty-Fourth Amendment claim (count two) and inability-topay claim (count one). The plaintiffs do not seek class treatment of their other claims. This is permissible. See Fed. R. Civ. P. 23(c)(4) (“Particular Issues. When appropriate, an action may be brought or maintained as a class action with respect to particular issues.”); see also Jenkins v. United Gas Corp., 400 F.2d 28, 35 (5th
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Cir. 1968) (Rule 23 gives the court “ample powers . . . to treat common things in common and to distinguish the distinguishable.”).
The Secretary opposes class certification. The Governor of Florida, who is a defendant in some of the consolidated cases but not in Raysor, has joined the opposition.
II. Standing A plaintiff who seeks to represent a class must have standing. See, e.g., Jones v. Firestone Tire & Rubber Co., 977 F.2d 527, 531 (11th Cir. 1992) (citing Griffin v. Dugger, 823 F.2d 1476, 1482 (11th Cir. 1987)). The Raysor plaintiffs— the proposed class representatives—are Bonnie Raysor, Diane Sherrill, and Lee Hoffman. They easily meet the standing requirement. Each plaintiff is a felon who would be eligible to vote but for financial obligations that were imposed as part of a felony sentence and that the plaintiff is genuinely unable to pay. Ms. Raysor has outstanding fines and fees related to a felony conviction. See Raysor Decl., ECF No. 172-2 at 3. She is on a payment plan based on her income and will not be able to pay off her financial obligations until 2031. Id. She asserts she is unable to pay her financial obligations in full due to her limited income and her expenses for necessities including housing, food, and other basic needs. Id. Ms. Sherrill has outstanding financial obligations related to a felony conviction. See Sherrill Decl., ECF No. 172-3 at 4. She receives public assistance.
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Id. at 3. She asserts she is unable to pay her financial obligations because of her limited income and her expenses for necessities including housing, utilities, and groceries. Id. at 3-4.
Mr. Hoffman has outstanding financial obligations related to felony convictions. See Hoffman Decl., ECF No. 172-4 at 2-3. Mr. Hoffman receives disability and works part-time. Id. at 3. He asserts he is unable to pay his financial obligations based on his limited income and his expenses for necessities including housing, utilities, groceries, gas, and other basic living expenses. Id.
III. Rule 23(a) Before certifying a class, a court must conduct a “rigorous analysis” under Federal Rule of Civil Procedure 23. See, e.g., Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1266 (11th Cir. 2009). “Frequently that ‘rigorous analysis’ will entail some overlap with the merits of the plaintiff’s underlying claim. That cannot be helped.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351 (2011) (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160 (1982)). The factual record, as opposed to “sheer speculation,” must demonstrate that each Rule 23 requirement has been met. Vega, 564 F.3d at 1267. The class must satisfy all the requirements of Rule 23(a) and at least one of the requirements of Rule 23(b). See, e.g., Jackson v. Motel 6 Multipurpose, Inc., 130 F.3d 999, 1005 (11th Cir. 1997).
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The party who moves to certify a class has the burden of establishing that the Rule 23 elements are met. Vega, 564 F.3d at 1265. The Rule 23(a) elements are commonly referred to as “numerosity, commonality, typicality, and adequacy of representation.” Babineau v. Fed. Express Corp., 576 F.3d 1183, 1190 (11th Cir. 2009) (quoting Valley Drug Co. v. Geneva Pharm., Inc., 350 F.3d 1181, 1187-88 (11th Cir. 2003)).
A. Numerosity The numerosity element requires the class to be “so numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). “[W]hile there is no fixed numerosity rule, ‘generally less than twenty-one is inadequate, more than forty adequate, with numbers between varying according to other factors.’ ” Cox v. Am. Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir. 1986). “[A] plaintiff need not show the precise number of members in the class.” Evans v. U.S. Pipe & Foundry Co., 696 F.2d 925, 930 (11th Cir. 1983). The numerosity requirement is plainly met for the Twenty-Fourth Amendment class. The Secretary does not assert the contrary. The record includes the Federal Rule of Civil Procedure 26(a)(2) report of Dr. Dan Smith indicating that in the 58 counties for which he had data, over 430,000 otherwise eligible felons are ineligible to vote solely because of outstanding financial obligations. See Smith Report, ECF No. 153-1 at 5, 20. That number was conservative because it
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did not include the 9 counties for which Dr. Smith did not have data and did not include felons with only federal or out-of-state convictions. Id. at 7 n.3, 20.
The numerosity requirement is also met for the inability-to-pay subclass. For the fiscal year that runs from October 1, 2017 to September 30, 2018, the Florida Court Clerks & Comptrollers published an annual report on the payment of courtrelated fines, fees, and charges. See Fla. Court Clerks & Comptrollers, 2018 Annual Assessments and Collections Report, Statewide Summary—Circuit Criminal (2018), https://flccoc.org/wp-content/uploads/2018/12/2018-AnnualAssessments-and-Collections-Report.pdf. The report noted three factors that affected collections of assessed fines and fees: incarceration, indigency, and judgment/lien status. Id. at 7. The report said 22.9% of the fines and fees assessed in Florida circuit courts were at risk of non-collection specifically because of indigency. Id. at 11. Taken together, Dr. Smith’s report and the Florida Court Clerks & Comptrollers report show that many thousands of felons are unable to pay their relevant financial obligations because of indigency. Still others are unable to pay because the amount owed is out of reach even for a person who is not indigent.
B. Commonality The commonality element requires that “there are questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). The action “must involve issues that are susceptible to class-wide proof.” Murray v. Auslander, 244 F.3d 807, 811
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(11th Cir. 2001). A common contention must be “capable of classwide resolution” such that “determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Dukes, 564 U.S. at 350.
This case will turn entirely on common issues with common answers. This is so for both the Twenty-Fourth Amendment claim and the inability-to-pay claim.
For the Twenty-Fourth Amendment, if the requirement to pay a financial obligation of a specific kind is an impermissible poll tax or other tax, that will be true of every class member who owes a financial obligation of that kind. Whether an exaction is an impermissible poll or other tax may not be the same for restitution, fines, and the several kinds of fees imposed as part of a felony sentence. But this means only that the common answer that will resolve the Twenty-Fourth Amendment claim may consist of several parts—that some exactions may be impermissible poll or other taxes while others are not. The commonality requirement does not preclude class treatment for questions with multi-part answers. The requirement is only for questions capable of classwide resolution. The question of what kind of exaction is an impermissible poll or other tax is such a question—the answer will resolve the Twenty-Fourth Amendment claim for all class members.
The same is true for the inability-to-pay claim. In asserting the contrary, the Secretary misunderstands the controlling substantive issue and the relief likely to
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be granted if the plaintiffs prevail on the claim. The controlling substantive issue is whether it is unconstitutional for a state to condition a felon’s ability to vote on the payment of money the felon is genuinely unable to pay. This is a common question that will have a single common answer—yes or no. This, without more, satisfies the commonality requirement.
The Secretary asserts that providing relief will require individual determinations of each subclass member’s ability to pay, but that is wrong and would not preclude class certification anyway. Commonality requires common questions with common answers and is not defeated just because a case also presents individual issues. Indeed, nearly all class actions involve at least some individual questions, including, for example, whether an individual class member qualifies for whatever classwide relief may ultimately be granted. And here, the relief likely to be granted if the plaintiffs prevail is not a felon-by-felon determination in this court of inability to pay but instead an injunction requiring the Secretary to put in place a system under which felons are not precluded from voting based only on inability to pay. The system may be one put forward by the Secretary at trial or, in the absence of input from the Secretary, one adopted by the court. Either way, it will be a system put in place for all subclass members.
The Supreme Court has said, “What matters to class certification . . . is not the raising of common questions—even in droves—but, rather the capacity of a
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classwide proceeding to generate common answers apt to drive the resolution of the litigation.” Dukes, 564 U.S. at 350 (emphasis in original) (quoting Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97, 132 (2009)). In this case common answers to common questions will resolve the litigation. The commonality requirement is satisfied.
C. Typicality The typicality element requires that “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). The plaintiffs must “possess the same interest and suffer the same injury as the class members.” Dukes, 564 U.S. at 348-49 (quoting E. Tex. Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395, 403 (1977)). Here each named plaintiff has the same interest and suffered the same injury as each class and subclass member. Each would be eligible to vote but for a financial obligation imposed as part of a felony sentence—an obligation the plaintiff asserts the plaintiff is genuinely unable to pay. Nothing more is required. The Secretary asserts, though, that none of the named plaintiffs owe restitution. This would not preclude class certification even if true; the named plaintiffs owe financial obligations that are sufficiently typical even if not identical to all the financial obligations at issue. And in any event the record shows that Mr. Hoffman was ordered to pay restitution. See, e.g., ECF No. 148-29 at 14, 27. If it
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turns out that Mr. Hoffman does not in fact owe restitution and that the restitution issues are so different from those presented by other financial obligations that the named plaintiffs’ claims are not typical—a development unlikely for the TwentyFourth Amendment class and even more unlikely for the inability-to-pay subclass—the class definitions can be amended to exclude restitution.
The typicality requirement is satisfied. D. Adequacy of Representation
The final Rule 23(a) requirement is that the class representative “will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). This encompasses two separate inquiries: whether any substantial conflicts of interest exist between the representative and the class, and whether the representative will adequately prosecute the action. See, e.g., Valley Drug Co. v. Geneva Pharm., Inc., 350 F.3d 1181, 1189 (11th Cir. 2003). Class counsel also must be adequate. See Fed. R. Civ. P. 23(g).
The Raysor plaintiffs are adequate representatives. Their attorneys are adequate class counsel. The adequacy requirement is satisfied.
IV. Rule 23(b)(2) Having met the requirements of Rule 23(a), the plaintiffs must also meet one of the requirements of Rule 23(b). Under Rule 23(b)(2), class treatment is appropriate when “the party opposing the class has acted or refused to act on
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grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2).
This case presents the very paradigm of a proper (b)(2) class. The party opposing the class—the Secretary on behalf of the State of Florida—has refused to allow felons with unpaid financial obligations to vote, regardless of any inability to pay.
V. Ascertainability The analysis to this point shows that the plaintiffs have met the requirements of Rule 23(a) and 23(b)(2). Rule 23 does not list ascertainability of class membership as an additional prerequisite to class certification. But the Secretary asserts ascertainability is required. And the Secretary asserts the plaintiffs have not met this requirement. The Secretary is wrong on both scores. First, the law of the circuit is that ascertainability is not a requirement for certification of a (b)(2) class. The controlling case is Carpenter v. Davis, 424 F.2d 257 (5th Cir. 1970). There, in addressing a (b)(2) class, the court said, “It is not necessary that the members of the class be so clearly identified that any member can be presently ascertained.” Id. at 260. The court said Rule 23(b)(2) commonly applies in “the civil-rights field where a party is charged with discriminating unlawfully against a class, usually one whose members are incapable of specific
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enumeration.” Id. at 261 (quoting Fed. R. Civ. P. 23(b)(2) advisory committee’s notes to 1966 amendment). As a pre-Bonner decision of the Fifth Circuit, Carpenter is binding in this court. See Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc).
The Carpenter holding makes sense. When a defendant has acted on grounds generally applicable to a class, so that injunctive or declaratory relief is appropriate respecting the class as a whole, there is ordinarily no reason to be concerned with precisely who is or is not a class member. If a defendant is engaged in an unlawful practice, an injunction requiring the defendant to stop can effectively end the practice; one need not know who fell prey to the practice in the past or is in line to do so in the future.
In asserting the contrary, the Secretary cites DeBremaecker v. Short, 433 F.2d 733 (5th Cir. 1970). There the court said that “in order to maintain a class action, the class sought to be represented must be adequately defined and clearly ascertainable.” Id. at 734. The circumstances in DeBremaecker were markedly different from the case at bar, and in any event, to the extent of any conflict between Carpenter and DeBremaecker, the controlling decision is Carpenter, which was decided first. See Monaghan v. Worldpay US, Inc., No. 17-14333, 2020 WL 1608155 at *5 (11th Cir. Apr. 2, 2020) (“Our adherence to the prior-panel rule is strict, but when there are conflicting prior panel decisions, the oldest one
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controls.”); see also Thompson v. Merrill, No. 2:16-cv-783-ECM, 2020 WL 411985 at *2-3 (M.D. Ala. Jan. 24, 2020) (recognizing that Carpenter predates and thus controls over DeBremaecker).
In any event, here the proposed class and subclass, at least as defined in this order, are sufficiently ascertainable to meet any such requirement. The state’s records of financial obligations are a mess—that is one of the plaintiffs’ other complaints—but the Secretary should hardly be heard to complain that it is impossible to figure out who has an unpaid financial obligation. And while no determination has been made—or is likely to be made in this litigation—as to which class members are genuinely unable to pay, the members of the inability-topay subclass will be those who assert genuine inability to pay.
This makes sense. Class membership typically turns on having a claim, not on showing at the outset that the claim will succeed on the merits. The goal is to provide the proper adjudication of the claim one way or the other, so that, win or lose, the claim is resolved. For felons who assert a constitutional right to vote because of genuine inability to pay, what matters is that they assert the claim—not that they will win either on the claim that they are in fact genuinely unable to pay or on the claim that conditioning the ability to vote on payment of an amount a person is unable to pay is unconstitutional.
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Ascertaining who meets these class definitions will be no more difficult than figuring out who qualifies for relief in any typical class action. Class members often are required to submit a claim or otherwise take steps to take advantage of whatever relief ultimately becomes available.
If ascertainability is required—it is not—the plaintiffs meet the requirement. VI. Necessity
Finally, the Secretary asserts that a class should not be certified if class treatment is unnecessary—if the full relief the plaintiffs seek is available in an individual action. The Secretary says the Twenty-Fourth Amendment class fails this requirement because if the plaintiffs prevail on this claim, the Secretary will simply abide by the ruling. The Secretary does not make the same assertion for the inability-to-pay claim. The distinction, the Secretary says, is that the TwentyFourth Amendment claim is a facial challenge, while the inability-to-pay claim is an as-applied challenge.
Rules 23(a) and (b)(2) do not refer to necessity. But class treatment adds a layer of complexity to any litigation. This order assumes that when class treatment would serve no purpose, a court can properly choose not to certify a class. See, e.g., United Farmworkers of Fla. Hous. Project, Inc. v. City of Delray Beach, 493 F.2d 799, 812 (5th Cir. 1974).
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Here, though, the Secretary’s promise to abide by any ruling is not enough. After entry of a preliminary injunction in favor of the 17 individual plaintiffs, the Secretary advised Supervisors of Elections throughout the state that the ruling applied only to the 17 individuals. The March 2020 elections went forward on that basis—without any statewide effort to conform to the United States Constitution as interpreted by both this court and the Eleventh Circuit. Class members can hardly be faulted for asserting that, if the ruling on the merits ultimately is that they have a constitutional right to vote, the right should be recognized in an enforceable decision.
VII. Conclusion The plaintiffs’ Twenty-Fourth Amendment and inability-to-pay claims turn on issues that can properly be resolved in a single action, once and for all. Class treatment is proper. IT IS ORDERED: 1. The plaintiffs’ class-certification motion, ECF No. 172, as supplemented, ECF No. 209, is granted with modified class definitions. 2. A class is certified on the Raysor plaintiffs’ Twenty-Fourth Amendment claim—count two in their amended complaint—consisting of all persons who would be eligible to vote in Florida but for unpaid financial obligations.
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3. A subclass is certified on the Raysor plaintiffs’ inability-to-pay claim— count one of their amended complaint—consisting of all persons who would be eligible to vote in Florida but for unpaid financial obligations that the person asserts the person is genuinely unable to pay.
4. The named plaintiffs Bonnie Raysor, Diane Sherrill, and Lee Hoffman are the class representatives.
5. Chad Dunn and Mark Gaber are class counsel. 6. Excluded from the class and subclass are the named plaintiffs in the other cases that have been consolidated with Raysor in this proceeding. The excluded individuals are Jeff Gruver, Emory Marquis Mitchell, Betty Riddle, Kristopher Wrench, Keith Ivey, Karen Leicht, Raquel Wright, Steven Phalen, Clifford Tyson, Jermaine Miller, Curtis D. Bryant, Latoya A. Moreland, Rosemary McCoy, Sheila Singleton, Kelvin Leon Jones, and Luis A. Mendez. The named plaintiff whose motion to withdraw is pending, Jesse D. Hamilton, is not excluded from the class and subclass. SO ORDERED on April 7, 2020.
s/Robert L. Hinkle United States District Judge
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA TALLAHASSEE DIVISION

KELVIN LEON JONES et al.,

Plaintiffs, v.

CONSOLIDATED CASE NO. 4:19cv300-RH/MJF

RON DeSANTIS et al.,

Defendants.

___________________________________/

ORDER COMPELLING DISCOVERY FROM THE PLAINTIFFS JONES AND MENDEZ AND AWARDING ATTORNEY’S FEES

The defendant Secretary of State propounded interrogatories and production requests to the plaintiffs Kelvin Leon Jones and Luis Mendez on August 23, 2019. The plaintiffs did not respond. The Secretary’s repeated attempts to obtain responses fell on deaf ears. Finally, on January 15, 2020, the Secretary moved to compel. The order of January 17 directed the plaintiffs to respond to the motion by January 21, 2020. The plaintiffs did not respond.
The interrogatories and production requests are proper. And by failing to respond, the plaintiffs waived any objections. The plaintiffs long ago should have

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answered the interrogatories and produced any requested documents within their possession or control. This order compels them to do so.
Under Federal Rule of Civil Procedure 37(a)(5)(A), the party or attorney whose conduct necessitated a discovery motion “must” be ordered to pay the reasonable expenses incurred in making the motion, including attorney’s fees, unless the moving party filed the motion before attempting in good faith to obtain the discovery without court action, or the opposing party’s position was “substantially justified,” or “other circumstances make an award of expenses unjust.” Unless one of these conditions is met, an award of expenses is “mandatory.” Devaney v. Cont’l Am. Ins. Co., 989 F.2d 1154, 1162 (11th Cir. 1993) (citing Merritt v. Int’l Bhd. of Boilermakers, 649 F.2d 1013, 1019 (5th Cir. Unit A June 1981)). A position is “substantially justified” if it results from a “genuine dispute, or if reasonable people could differ as to the appropriateness of the contested action.” Pierce v. Underwood, 487 U.S. 552, 565 (1988) (citations, quotation marks, and brackets omitted); Devaney, 989 F.2d at 1163.
Under the circumstances of this case, an award is “mandatory,” and I would make an award as a matter of discretion even if an award was not mandatory. To avoid unnecessary expense in determining the amount of the fee award, this order sets an amount, subject to redetermination.
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Finally, a note to the plaintiffs’ attorney. Compliance with the governing rules and court orders is mandatory, not optional. If this order is ignored, it will not end well. The time to pay attention is now.
For these reasons, IT IS ORDERED: 1. The Secretary’s motion to compel, ECF No. 252, is granted. 2. By February 11, 2020, Mr. Jones and Mr. Mendez must each answer the interrogatories and produce all requested documents within his possession or control to the Secretary’s attorneys. 3. Mr. Jones, Mr. Mendez, and their attorney Michael A. Steinberg, jointly and severally, must pay the Secretary $500 as attorney’s fees. If a party asserts that this is not the amount of fees reasonably incurred by the Secretary on the motion to compel, the party may move within 14 days to redetermine the amount, and the matter will be reconsidered de novo. Attorney’s fees may be assessed against the party who loses any such motion to redetermine. The fees assessed under this order or based on it must be paid by February 18, 2020 (if no motion to redetermine is filed) or within 14 days after entry of an order on any motion to redetermine. SO ORDERED on January 28, 2020.
s/Robert L. Hinkle United States District Judge
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA TALLAHASSEE DIVISION

KELVIN LEON JONES et al.,

Plaintiffs, v.

CONSOLIDATED CASE NO. 4:19cv300-RH/MJF

RON DeSANTIS et al.,

Defendants.

_________________________________________/

OPINION ON THE MERITS

The State of Florida has adopted a system under which nearly a million otherwise-eligible citizens will be allowed to vote only if they pay an amount of money. Most of the citizens lack the financial resources to make the required payment. Many do not know, and some will not be able to find out, how much they must pay. For most, the required payment will consist only of charges the State imposed to fund government operations—taxes in substance though not in name.
The State is on pace to complete its initial screening of the citizens by 2026, or perhaps later, and only then will have an initial opinion about which citizens must pay, and how much they must pay, to be allowed to vote. In the meantime,

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year after year, federal and state elections will pass. The uncertainty will cause some citizens who are eligible to vote, even on the State’s own view of the law, not to vote, lest they risk criminal prosecution.
This pay-to-vote system would be universally decried as unconstitutional but for one thing: each citizen at issue was convicted, at some point in the past, of a felony offense. A state may disenfranchise felons and impose conditions on their reenfranchisement. But the conditions must pass constitutional scrutiny. Whatever might be said of a rationally constructed system, this one falls short in substantial respects.
The United States Court of Appeals for the Eleventh Circuit has already ruled, in affirming a preliminary injunction in this very case, that the State cannot condition voting on payment of an amount a person is genuinely unable to pay. See Jones v. Governor of Fla., 950 F.3d 795 (11th Cir. 2020). Now, after a full trial on the merits, the plaintiffs’ evidence has grown stronger. This order holds that the State can condition voting on payment of fines and restitution that a person is able to pay but cannot condition voting on payment of amounts a person is unable to pay or on payment of taxes, even those labeled fees or costs. This order puts in place administrative procedures that comport with the Constitution and are less burdensome, on both the State and the citizens, than those the State is currently using to administer the unconstitutional pay-to-vote system.
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I. The Consolidated Cases These are five consolidated cases. The plaintiffs assert the requirement to
pay to vote is unconstitutional across the board or alternatively as applied to those who are unable to pay the amount at issue. There are differences from one case to another in the plaintiffs’ legal theories and in the named defendants. All the defendants are named only in their official capacities.
In No. 4:19cv301, the plaintiffs are Bonnie Raysor, Diane Sherrill, and Lee Hoffman, individually and on behalf of a class and subclass. The defendants are the Florida Secretary of State and, under a consented amendment,1 the Hillsborough County Supervisor of Elections. These plaintiffs assert the pay-tovote system violates the Twenty-Fourth Amendment, which prohibits a state from denying or abridging the right to vote in a federal election by reason of failure to pay “any poll tax or other tax.” On this claim the plaintiffs represent a class of all persons who would be eligible to vote in Florida but for unpaid financial obligations, with this exception: named plaintiffs in the other consolidated cases are excluded from the class.
These plaintiffs also assert the pay-to-vote system discriminates against citizens who are unable to pay and thus violates the Equal Protection Clause. On this claim the plaintiffs represent a subclass of all persons who would be eligible to
1 See ECF No. 18 in 4:19cv301.
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vote in Florida but for unpaid financial obligations that the person asserts the person is genuinely unable to pay, again excluding other named plaintiffs.
Finally, these plaintiffs assert, but not on behalf of a class, that the pay-tovote system is void for vagueness, denies procedural due process, and violates the National Voter Registration Act, 52 U.S.C. § 20501 et seq.
In No. 4:19cv302, the plaintiffs are 12 individuals and 3 organizations. The individuals are Jeff Gruver, Emory Marquis Mitchell, Betty Riddle, Karen Leicht, Keith Ivey, Kristopher Wrench, Raquel L. Wright, Steven Phalen, Jermaine Miller, Clifford Tyson, Latoya A. Moreland, and Curtis D. Bryant. The organizations are the League of Women Voters of Florida, the Florida State Conference of the NAACP, and the Orange County Branch of the NAACP. The defendants are the Secretary of State and the Supervisors of Elections of Alachua, Broward, Duval, Hillsborough, Indian River, Leon, Manantee, Miami-Dade, Orange, and Sarasota Counties.
These plaintiffs assert the pay-to-vote system discriminates against citizens who are unable to pay in violation of the Due Process and Equal Protection Clauses. They assert the State has failed to provide uniform guidance and that the pay-to-vote system thus is being applied inconsistently in different counties, violating the principle established by Bush v. Gore, 531 U.S. 98 (2000). The plaintiffs assert the pay-to-vote system violates the Fourteenth Amendment
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because determining the amount that must be paid to vote imposes an unwarranted burden on potential voters. The plaintiffs assert the pay-to-vote system imposes an unconstitutional “poll tax or other tax,” is unconstitutionally vague, denies procedural due process, unduly burdens political speech and associational rights in violation of the First Amendment, is racially discriminatory, and violates the National Voter Registration Act. The plaintiffs originally asserted, but now have abandoned, a claim under the Ex Post Facto Clause.
In No. 4:19cv304, the plaintiffs are Rosemary Osborne McCoy and Sheila Singleton. The defendants are the Governor of Florida, the Secretary of State, and the Duval County Supervisor of Elections. The plaintiffs assert the pay-to-vote system discriminates against citizens who are unable to pay in violation of the Equal Protection Clause. They assert the system violates the Twenty-Fourth Amendment, discriminates based on gender, denies procedural due process, is void for vagueness, and violates the Eighth Amendment’s ban on excessive fines.
In No. 4:19cv272, the plaintiff is Luis Mendez. In No. 4:19cv300, the plaintiff is Kelvin Leon Jones. In both cases, the defendants are the Governor, the Secretary of State, and the Hillsborough County Supervisor of Elections. Mr. Mendez and Mr. Jones have not participated since early in the litigation and did not appear at trial. This order dismisses their claims without prejudice and, as the State
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agreed on the record would be proper, restores them to the plaintiff class and subclass.2
The Governor and Secretary of State are the defendants who speak for the State of Florida in this litigation. They have consistently taken the same positions. For convenience, this order sometimes refers to them collectively as “the State.”
The cases were originally consolidated for case-management purposes, but they have now been tried together. This order consolidates the cases for all purposes, sets out the court’s findings of fact and conclusions of law, enters an injunction, and directs the entry of judgment. II. Disenfranchisement, Amendment 4, and SB7066
Beginning in 1838, Florida’s Constitution allowed the Legislature to disenfranchise felons.3 The Legislature enacted a disenfranchisement provision at least as early as 1845.4
A state’s authority to do this is beyond question. In Richardson v. Ramirez, 418 U.S. 24 (1974), the Supreme Court read an apportionment provision in section 2 of the Fourteenth Amendment as authority for states to disenfranchise felons. As Justice O’Connor, speaking for the Ninth Circuit, later said, “it is not obvious”
2 See Trial Tr., ECF No. 417 at 39. 3 See Johnson v. Governor of Fla., 405 F.3d 1214, 1218 (11th Cir. 2005). 4 Id.
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how the section 2 apportionment provision leads to this result. Harvey v. Brewer, 605 F.3d 1067, 1072 (9th Cir. 2010). But one way or the other, Richardson is the law of the land.
Recognizing this, in Johnson v. Governor of Florida, 405 F.3d 1214 (11th Cir. 2005) (en banc), the court explicitly upheld Florida’s then-existing disenfranchisement provisions. The bottom line: Florida’s longstanding practice of denying an otherwise-qualified citizen the right to vote on the ground that the citizen has been convicted of a felony is not, without more, unconstitutional.
Florida has long had an Executive Clemency Board with authority to restore an individual’s right to vote. But the Board moves at glacial speed and, for the eight years before Amendment 4 was adopted, reenfranchised very few applicants.5 For the overwhelming majority of felons who wished to vote, the Executive Clemency Board was an illusory remedy.
Florida’s Constitution allows voter-initiated amendments. To pass, a proposed amendment must garner 60% of the vote in a statewide election.6 Amendment 4, which passed with 64.55% of the vote, added a provision
5 See, e.g., Prelim. Inj. Hr’g Tr., ECF No. 204 at 170-71; see also Pls.’ Ex. 893, ECF No. 286-13 at 55-65. 6 Fla. Const. art XI, § 5(e).
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automatically restoring the voting rights of some—not all—felons. The new
provision was codified as part of Florida Constitution article VI, section 4.
The full text of section 4, with the new language underlined, follows:
(a) No person convicted of a felony, or adjudicated in this or any other state to be mentally incompetent, shall be qualified to vote or hold office until restoration of civil rights or removal of disability. Except as provided in subsection (b) of this section, any disqualification from voting arising from a felony conviction shall terminate and voting rights shall be restored upon completion of all terms of sentence including parole or probation.
(b) No person convicted of murder or a felony sexual offense shall be qualified to vote until restoration of civil rights.
Fla. Const. art. VI, § 4 (emphasis added). The exclusion of felons convicted of
murder or sexual offenses is not at issue in these cases. References in this order to
“felons” should be read to mean felons convicted only of other offenses, when the
context makes this appropriate.7
At least on its face, Amendment 4 was self-executing. Under Florida law,
the amendment’s effective date was January 8, 2019. Individuals with felony
7 This order does not use the plaintiffs’ proposed term “returning citizens.” The order instead uses “citizens” or “individuals” when the context is clear but “felons” when necessary, because the term is both more accurate and less cumbersome. “Returning” is inaccurate or at least imprecise; the citizens have not been away, except, for some, in prison, and most who went to prison have been back for years or decades. Respect is not a zero-sum game—more is almost always better. This order aims at providing equal respect to those on both sides, save as necessary to accurately set out the facts and ruling.
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convictions began registering to vote on that day. Supervisors of Elections accepted the registrations.8 This accorded with Florida law, under which Supervisors are required to accept facially sufficient registrations, subject to later revocation if a voter is found ineligible.
During its spring 2019 session, the Legislature took up issues related to Amendment 4, eventually passing a statute referred to in this order as SB7066. The statute includes a variety of provisions. Two are the most important for present purposes.
First, SB7066 explicitly defines the language in Amendment 4, “completion of all terms of sentence including probation or parole,” to mean not just any term in prison or under supervision but also financial obligations included in the sentence—that is, “contained in the four corners of the sentencing document.” Fla. Stat. § 98.0751(2)(a). This does not include amounts “that accrue after the date the obligation is ordered as a part of the sentence.” Id. § 98.0751(2)(a)5.c.
Second, SB7066 explicitly provides that a financial obligation still counts as part of the sentence—still must be paid for the person to be eligible to vote—if the sentencing court converts it to a civil lien. Id. Conversion to a civil lien, usually at the time of sentencing, is a longstanding Florida procedure that courts often use for
8 See Pls.’ Ex. 44, ECF No. 152-41 at 3-4; see also Pls.’ Ex. 66, ECF No. 152-63.
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obligations a criminal defendant cannot afford to pay.9 Conversion takes the obligation out of the criminal-justice system and leaves the obligation enforceable only through the civil-justice system.
The financial obligations included in a sentence may include fines, fees, costs, and restitution.
Fines are imposed in a minority of cases.10 The amount is determined by the court, subject to a maximum set by statute. For a small number of offenses, there is a mandatory fine of at least a specified amount.11
Fees and costs are imposed in all cases, with few if any exceptions, though there was a time when that was not so.12 Each type of fee or cost is authorized, indeed usually required, by statute. These are not traditional court costs of a kind usually awarded in favor of a prevailing litigant; they are instead a means of funding the government in general or specific government functions. 13 An
9 See Fla. Stat. § 938.30(6)-(9); Prelim. Inj. Hr’g Tr., ECF No. 204 at 94; Pls.’ Ex. 189, ECF No. 167-20 at 48; Trial Tr., ECF No. 396 at 61-62, 100 10 See Trial Tr., ECF No. 396 at 28-29. 11 See, e.g., Fla. Stat. §§ 806.13(6)(a) (requiring a fine for certain criminal mischief offenses); 812.014(2)(c)(7) (requiring a $10,000 fine for theft of a commercially farmed animal). 12 See Trial Tr., ECF No. 396 at 34-35. 13 See Trial Tr., ECF No. 396 at 23-35.
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example is a flat $225 assessment in every felony case, $200 of which is used to fund the clerk’s office and $25 of which is remitted to the Florida Department of Revenue for deposit in the state’s general revenue fund.14 Another example is a flat $3 assessment in every case that is remitted to the Department of Revenue for further distribution in specified percentages for, among other things, a domesticviolence program and a law-enforcement training fund.15
Restitution is ordered in a minority of cases and is payable to a victim in the amount of loss as determined by the court. Restitution is sometimes awarded jointly and severally against participants in the same crime, even when they are charged in different cases. Most restitution orders require payment directly to the victim, but some orders provide for payment through the Clerk of Court or Department of Corrections, who charge a fee before payment of the remainder to the victim. Over time, the fee has sometimes been a percentage, sometimes a flat amount.
The parties have sometimes referred to amounts a criminal defendant must pay as “legal financial obligations” or “LFOs.” This order adopts this terminology but uses it in a precise, more limited way: to refer only to obligations that the State
14 See Fla. Stat. § 938.05(1)(a); see also Trial Tr., ECF No. 396 at 95. 15 See Fla. Stat. § 938.01(1).
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says must be paid before a felon’s right to vote is restored under Amendment 4 and SB7066. The terminology does not change when the obligation is paid; if it was an “LFO” when imposed, it remains an “LFO” after payment—once an “LFO,” always an “LFO.” As we shall see, the State’s position on whether an amount is covered by SB7066 has not always been clear or consistent. But for purposes of this order, by definition, whatever the State says is covered is an “LFO”; any other obligation is not. III. The Eleventh Circuit Ruling on Inability to Pay
Early in this litigation, the plaintiffs moved for a preliminary injunction on some but not all of their claims. After an evidentiary hearing, a preliminary injunction was granted in favor of the 17 individual plaintiffs and against the Secretary of State and the Supervisors of Elections in the counties where the plaintiffs resided.16
The preliminary injunction had two parts. First, an enjoined defendant could not take any action that both (a) prevented a plaintiff from registering to vote, and (b) was based only on failure to pay an LFO that the plaintiff asserted the plaintiff was genuinely unable to pay. Second, an enjoined defendant could not take any action that both (a) prevented a plaintiff from voting and (b) was based only on a failure to pay an LFO that the plaintiff showed the plaintiff was genuinely unable
16 ECF No. 207.
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to pay. In short, plaintiffs who claimed inability to pay could register, and plaintiffs who showed inability to pay could vote.
The preliminary injunction explicitly allowed the Secretary to notify Supervisors of Elections that an individual plaintiff had unpaid LFOs that would make the plaintiff ineligible to vote absent a showing of genuine inability to pay. The preliminary injunction left the state discretion on how the plaintiffs would be allowed to establish their inability to pay.
The State appealed. The United States Court of Appeals for the Eleventh Circuit affirmed, squarely holding that Florida cannot prevent an otherwise-eligible felon from voting just because the felon has failed to pay LFOs the felon is genuinely unable to pay. Jones v. Governor of Fla., 950 F.3d 795 (11th Cir. 2020). This order of course follows the Eleventh Circuit’s decision—and would reach the same result anyway.
This order does not repeat or even attempt to summarize the Eleventh Circuit decision. On the inability-to-pay claim, the Eleventh Circuit’s analysis is more important than anything included in this order. IV. The Florida Supreme Court Decision on “All Terms of Sentence”
After entry of the preliminary injunction and while the federal appeal was pending, the Florida Supreme Court issued an advisory opinion in response to a request from the Governor. See Advisory Op. to the Governor Re: Implementation
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of Amendment 4, the Voting Restoration Amendment, 288 So. 3d 1070 (Fla. 2020) The court said “all terms of sentence including probation and parole,” within the meaning of Amendment 4, includes financial obligations. This settles the question of whether fines, fees, costs, and restitution are covered; they are.
The court did not address what “completion” of these amounts means, because the Governor explicitly told the court he was not asking for an advisory opinion on that issue. Id. at 1074-75. The issue is important, because “completion” could reasonably be construed to mean payment to the best of a person’s ability, bringing Amendment 4, though not SB7066, into alignment with the plaintiffs’ inability-to-pay argument and Jones. The Florida Supreme Court did not address the issue, instead heeding the Governor’s limitation on his request for an advisory opinion. V. The Plaintiffs
Determining how much a person convicted of a felony in Florida was ordered to pay as part of a criminal sentence is not as easy as one might expect. It is sometimes easy, sometimes hard, sometimes impossible. Determining how much a person has paid, especially given the State’s byzantine approach to calculating that amount, is more difficult, but this, too, is sometimes easy, sometimes hard, sometimes impossible. This is addressed below in the analysis of the merits.
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The record includes evidence on the plaintiffs’ obligations, often introduced by the State, apparently to show how easily their obligations could be calculated. But even with a team of attorneys and unlimited time, the State has been unable to show how much each plaintiff must pay to vote under the State’s view of the law. For Mr. Gruver, the State submitted a judgment, but it does not include any financial obligations.17 Mr. Gruver says he was ordered to pay fees and costs totaling $801.18 He is genuinely unable to pay that amount. The record includes a civil judgment for that amount dated 17 days after Mr. Gruver was sentenced.19 Perhaps the criminal judgment included the same amount and it was converted to a civil lien 17 days later. Or perhaps no amount was included in the criminal judgment at all. Mr. Gruver says that with interest and collection fees, the debt has grown to roughly $2,000.20
One cannot know, from the information in this record, whether any financial obligation was included in the “four corners” of Mr. Gruver’s criminal judgment. See Fla. Stat. § 98.0751(2)(a). If this is the best the State’s attorneys could do, one
17 Defs.’ Ex. 17A, ECF No. 148-18 at 3-5. 18 Pls.’ Ex. 3, ECF No. 152-2 at 3. 19 Defs.’ Ex. 17A, ECF No. 148-18 at 2. 20 Pls.’ Ex. 24, ECF No. 152-23 at 2.
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wonders how Mr. Gruver or the Division of Elections could be expected to do better.
Mr. Mitchell was unaware he owed any amount until he registered to vote and received a notice from his county’s Clerk of Court.21 He now believes he owes $4,483 arising from convictions in Miami-Dade and Okeechobee Counties.22 The record does not show what amounts were included in his sentences.23 The MiamiDade Clerk of Court’s website includes a docket entry indicating $754 was assessed as costs.24 One cannot know, from this record, what amount the State asserts Mr. Mitchell must pay to vote. But Mr. Mitchell works at a nonprofit without salary; even if the amount was only $754, Mr. Mitchell would be unable to pay it.25
Ms. Riddle was convicted of felonies between 1975 and 1988 in two different counties. She asked the Clerks of Court for copies of the records of the
21 Pls.’ Ex. 4, ECF No. 152-3 at 5. 22 Id. 23 See Defs.’ Ex. 17B, ECF No. 148-19. 24 Id. at 6. 25 See Pls.’ Ex. 4, ECF No. 152-3 at 5.
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convictions, but she was told the Clerks were unable to find them.26 Ms. Riddle apparently owes roughly $1,800 in connection with later convictions, but the Clerk’s records do not match those maintained by the Florida Department of Law Enforcement. Ms. Riddle is unable to pay that amount.27 Ms. Riddle does not know, and despite diligent efforts has been unable to find out, how much the State says she must pay to vote.
Ms. Leicht was convicted of a federal felony and ordered to pay over $59 million in restitution jointly and severally with others.28 She is unable to pay that amount. After Amendment 4 passed, she was hesitant to register to vote, fearing criminal prosecution, but a state senator encouraged her to register, and she did.29
Mr. Ivey was convicted of a felony in 2002. His judgment shows he was assessed $428 in fees, but he did not know he owed any amount until a reporter told him in 2019.30 Mr. Ivey has not asserted or proven he is unable to pay. The
26 See Prelim. Inj. Hr’g Tr., ECF No. 204 at 162-65. 27 Id. at 165-66. 28 Pls. Ex. 6, ECF No. 152-5 at 3. 29 Id. 30 See Defs.’ Ex. 17C, ECF No. 148-20 at 4; see also Pls.’ Ex. 7, ECF No. 152-6 at 3.
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judgment shows no fine, but a printout from the Clerk of Court seems to say “minimum fines” were assessed.31 The amount the State asserts Mr. Ivey must pay to vote is apparently $428, but that is not clear.
Mr. Wrench apparently owes $3,000 in connection with felony convictions.32 He is unable to pay that amount. But it is unclear whether he would have to pay this amount, or anything close to it, to be able to vote.
Mr. Wrench was convicted of felonies under two case numbers on December 15, 2008.33 The State introduced copies of the judgments, but it is unclear whether the copies are complete. The criminal judgments, or at least the portion in the record, do not show any financial obligations. But on February 2, 2009, a civil judgment was entered under the first case number for $1,874 in “financial obligations”—no further description was provided—that, according to the civil judgment, had been ordered as part of the sentence.34 Similarly, on March 15, 2011, more than two years later, a civil judgment was entered under the second case number for $601 in unspecified “financial obligations” that, again according
31 See Defs.’ Ex. 17C, ECF No. 148-20 at 33-34. 32 See Pls.’ Ex. 8, ECF No. 152-7 at 3. 33 See Defs.’ Ex. 17D, ECF No. 148-21 at 8-12, 18-20. 34 Id. at 4.
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to the civil judgment, had been ordered as part of the sentence.35 It is unclear what amount, if any, the State asserts Mr. Wrench must pay on these convictions to be eligible to vote.
Mr. Wrench was convicted of another felony on November 7, 2011.36 An order included in the judgment assessed costs of $200 with other amounts struck through and initialed.37 But a civil judgment was entered on March 5, 2012 for $871.38 It is unclear what amount the State asserts Mr. Wrench must pay on this conviction to be eligible to vote.
Ms. Wright was convicted of a felony. Her sentence included $54,137.66 in fines and fees.39 The judge immediately converted the full amount to a civil lien.40 Ms. Wright is employed part-time and earns $450 per month.41 She is unable to pay the fines and fees.
35 Id. at 15. 36 Id. at 26. 37 Id. at 27-28. 38 Id. at 23. 39 See Pls.’ Ex. 9, ECF No. 152-8; see also Defs.’ Ex 17E, ECF No. 148-22. 40 Defs.’ Ex. 17E, ECF No. 148-22 at 10. 41 See Pls.’ Ex. 9, ECF No. 152-8 at 4.
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Dr. Phalen was convicted of a felony in Wisconsin in 2005.42 He was assessed $150,000 in restitution and has made regular payments, but he still owes $110,000. Under Wisconsin law, he would be eligible to vote. The State of Florida has acknowledged in this litigation that a felony conviction in another state does not make a person ineligible to vote in Florida if the person would be eligible to vote in the state where the conviction occurred.43 So Dr. Phalen is eligible to vote in Florida, he just didn’t know it when he joined this litigation.
Mr. Miller was convicted in 2015 of two felonies and a misdemeanor that were prosecuted as part of the same case.44 The judgment assessed $1,221.25 in fees and costs and $233.80 in restitution.45 He paid $252 on the restitution obligation—more than the original assessment—but the Department of Corrections says he still owes $1.11, apparently based in part on the Department’s 4% surcharge for collecting payments.46 The records of the Florida Department of Law
42 See Pls.’ Ex. 10, ECF No. 152-9. 43 Trial Tr., ECF No. 408 at 81. 44 See Defs.’ Ex. 17F, ECF No. 148-23. 45 Id. at 9-10. 46 Pls.’ Ex. 11, ECF No.152-10 at 3-4, 35-38.
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Enforcement and Clerk of Court give different amounts still owed for fees and costs, but whatever the accurate number, Mr. Miller is unable to pay it.
Mr. Tyson was convicted of felonies between 1978 and 1998.47 He was ordered to pay fees, costs, and restitution. He paid the restitution. He has been unable, despite extraordinary effort, to determine the amount still owed for fees and costs.48 There are discrepancies in the available records that cannot be reconciled. But whatever the precise balance, Mr. Tyson is unable to pay it. Even so, it is no longer clear the State contends Mr. Tyson must pay the outstanding balance to be able to vote, as addressed below in the discussion of the merits.
Ms. Moreland was convicted of a felony and ordered to pay $618 in fees and costs, but a separate cost sheet listed the amount as $718.49 She is unable to pay either amount. She registered to vote when she thought she was eligible, but the Manatee County Supervisor of Elections removed her from the roll based on the unpaid LFOs, after giving proper notice. The Supervisor has reinstated her pending developments in this litigation.
47 See Pls.’ Ex. 12, ECF No. 152-11. 48 See, e.g., Prelim. Inj. Hr’g Tr., ECF No. 204 at 172-79; see also Trial Tr., ECF No. 393 at 185. 49 See Pls.’ Ex. 531, ECF No. 354-7 at 47, 80.
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Mr. Bryant owes more than $10,000 in fines, fees, and costs assessed on felony convictions.50 He pays $30 per month under a payment plan but is unable to pay the full amount or whatever amount he would have to pay to vote.51 He registered to vote after Amendment 4 was adopted, believing he was eligible. In due course, though, he learned of the State’s contrary position. He submitted a declaration early in this litigation, but he was not a named plaintiff when the preliminary injunction was issued, and the preliminary injunction thus did not explicitly apply to him.52 Even though the Eleventh Circuit affirmed the preliminary injunction before the March 2020 presidential primary in an opinion making clear that Mr. Bryant is constitutionally entitled to vote, he chose not to vote.53 Having left his criminal past behind, he did not wish to risk prosecution.54
Ms. McCoy was convicted of a felony and ordered to pay $666 in fees and $6,400 in restitution through the Clerk of Court.55 She paid the fees but is unable to
50 Trial Tr., ECF No. 397 at 68. 51 Id. at 66-68. 52 See Pls.’ Ex. 23, ECF No. 152-22. 53 Trial Tr., ECF No. 397 at 73-74. 54 Id. 55 See Defs.’ Ex. 17H, ECF No. 148-25 at 35-57.
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pay the restitution.56 The restitution balance, with interest, has grown to $7,806.72. Ms. McCoy tried to set up a payment plan but was told the Clerk of Court does not allow payment plans for restitution.57
Ms. Singleton was sentenced for a felony on April 8, 2011.58 The judgment is in the record. It includes $771 in fees and costs.59 Ms. Singleton is unable to pay that amount. The judgment does not mention restitution. A separate restitution order was entered requiring Ms. Singleton to pay the victim $12,110.81; the judge’s signature was undated, but the order was file-stamped July 9, 2014, over three years after Ms. Singleton was sentenced.60 The record includes another restitution order directing Ms. Singleton to pay a different victim $12,246.00; that order bears no date.61 If, as appears likely, Ms. Singleton was not ordered to pay restitution until three years after she was sentenced, the State apparently agrees that
56 See Prelim. Inj. Hr’g Tr., ECF No. 204 at 134-36. 57 Trial Tr., ECF No. 397 at 57. 58 See Defs.’ Ex. 17I, ECF No. 148-26 at 4-8. 59 Id. at 6. 60 Id. at 9-10. 61 Id. at 2-3.
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she can vote without paying the restitution.62 Ms. Singleton would not have known this had she not participated in this litigation.
Ms. Raysor was convicted of a felony. Her judgment is not in the record, but she signed a payment plan calling for $30 monthly payments toward a total obligation of $5,000.63 She is current on her payments and on pace to pay the full balance by 2031. She is unable to pay a greater amount—as the State apparently acknowledged by agreeing to the payment plan.
Ms. Sherrill has felony convictions. Her judgments are not in the record. It is unclear what financial obligations were imposed as part of the sentence, but the outstanding balance is $2,279.64 Ms. Sherrill is unable to pay that amount.
Mr. Hoffman has felony convictions. He believes he owes $1,772.13 in one county and $469.88 in another county in connection with the convictions.65 He is unable to pay those amounts. Mr. Hoffman also has a misdemeanor conviction in a case erroneously titled on the docket as a felony66—a recurring problem that led
62 Trial Tr., ECF No. 408 at 104. 63 See Pls.’ Ex. 15, ECF No. 152-14. 64 See Defs.’ Ex. 17K, ECF No. 148-28; see also Pls.’ Ex. 16, ECF No. 152-15. 65 See Pls.’ Ex. 17, ECF No. 152-16. 66 See Defs.’ Ex. 17L, ECF No. 148-29 at 26-28; see also Trial Tr., ECF No. 408 at 210-12.
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the Secretary of State’s Division of Elections to incorrectly assert more than 20 others were ineligible to vote in one county alone.67
The League of Women Voters is an advocate for increased voter registration and turnout. The League conducts voter-registration drives and conducts programs to educate the public.68 The Florida State Conference of the NAACP and the NAACP’s Orange County Branch are member-based civil-rights organizations who advocate for the rights of members, including the right to vote.69 The NAACP organizations have members directly affected by the State’s pay-to-vote system— who are unable to vote under that system but will be able to vote if the plaintiffs prevail in this litigation.
The confusion created by SB7066 and the State’s failure to articulate clear standards for its application, together with the difficulty determining whether any given felon has unpaid LFOs, caused the League and the State Conference of the NAACP to expend resources unnecessarily and interfered with their voterregistration activities. Each organization curtailed its voter-registration activities out of fear that citizens who registered with the organization’s help might be
67 See Earley Dep. Designations, ECF No. 389-3 at 45-46; see also Pls’ Exs. 76-77, ECF No. 152-73, 152-74. 68 See Trial Tr., ECF No. 396 at 155. 69 See Trial Tr., ECF No. 397 at 6-7.
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prosecuted, even if the organization and the citizen believed the citizen was eligible. As a result, the organizations signed up fewer new voters—and are continuing to sign up fewer new voters—than they otherwise would have. VI. The Registration Process
To be eligible to vote in Florida, a person must submit a registration form. If the county Supervisor of Elections deems the form complete on its face, the Secretary of State’s Division of Elections determines, using personal identifying information, whether the person is real. If so, the person is added to the voting roll, subject to later revocation if it turns out the person is ineligible.70
The Division of Elections takes the laboring oar at that point, reviewing the registration for, among other things, disqualifying felony convictions.71 The Division also periodically reviews all prior registrations for felony convictions, because a person who was eligible at the time of initial registration may be convicted later.
If the Division finds a disqualifying felony conviction, the Division notifies the proper Supervisor of Elections. Some Supervisors review the Division’s work
70 See Defs.’ Ex. 16, ECF No. 148-16 at 5; see also Earley Dep. Designations, ECF No. 389-3 at 29. 71 Defs.’ Ex. 16, ECF No. 148-16 at 6-8; see also Fla. Stat. § 98.075(5).
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for accuracy; some do not.72 If the Supervisor concludes, with or without an independent review, that the registrant is not eligible to vote, the Supervisor sends the registrant a notice giving the registrant 30 days to show eligibility.73 The registrant may request a hearing before the Supervisor, and if unsuccessful may file a lawsuit in state court, where review is de novo.74 Requests for a hearing are extremely rare; even long serving Supervisors have rarely conducted more than one or two during an entire tenure.75
Supervisors sometimes address felony convictions on their own, without awaiting notice from the Division that a registrant is ineligible. The Supervisors do not, however, have the resources to perform the bulk of the screening process or to conduct hearings on individual issues like the amount of a registrant’s LFOs or a registrant’s ability to pay. VII. Standing
The defendants have asserted lack of standing on multiple grounds. Their positions were rejected in earlier orders and are addressed here only briefly.
72 See, e.g., Earley Dep. Designations, ECF No. 389-3 at 60-63, 129-30; see also Pls.’ Ex. 69, ECF No. 152-66; Latimer Dep. Designations, ECF No. 389-4 at 9091. 73 See Fla. Stat. § 98.075(7). 74 Fla. Stat. § 98.0755. 75 See Trial Tr., ECF No. 393 at 42; see also Trial Tr., ECF No. 402 at 54-55.
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In Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992), the Supreme Court said the “irreducible constitutional minimum of standing contains three elements.” First, the plaintiff “must have suffered an injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Id. (internal quotation marks and citations omitted). Second, “there must be a causal connection between the injury and the conduct complained of—the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court.” Id. (internal quotation marks, ellipses, and brackets omitted). Third, “it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Id. (internal quotation marks omitted); see also Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547-48 (2016).
The State says the plaintiffs lack standing because they have already registered to vote. But the State says most or all are ineligible to vote, and fraudulently voting is a felony. If the plaintiffs win this lawsuit, they will be able to vote; if they lose, most will not be able to vote. The plaintiffs have standing to challenge provisions that prevent or deter them from voting.
The State says the plaintiffs have no standing because, according to the State, the plaintiffs challenge only SB7066 as applied, not Amendment 4. Because Amendment 4 requires payment of LFOs, the State says, holding SB7066
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unconstitutional as applied would make no difference; the plaintiffs would still have to pay their LFOs to be able to vote.
One flaw in the argument is the assertion that SB7066 goes no further than Amendment 4. As addressed ahead, SB7066 has a number of provisions that Amendment 4 lacks, including, for example, the definition of “completion,” the treatment of LFOs that are converted to civil liens, and the prescription of a specific, flawed registration form. The Secretary of State’s Division of Elections is following procedures, some attributed to SB7066, that cannot be gleaned from Amendment 4.
Much more significantly, the State is simply wrong when it asserts the plaintiffs do not challenge application of Amendment 4 to otherwise-eligibile citzens with unpaid LFOs. The complaints were filed before the Florida Supreme Court construed Amendment 4 to cover LFOs, so it is not surprising that the complaints focused on SB7066 and its explicit reference to LFOs. But it has been clear all along that the plaintiffs assert it is unconstitutional to condition voting on payment of LFOs, especially those a person is unable to pay. The preliminary injunction, entered before the State filed its answers, read the complaints this way.76 The Eleventh Circuit clearly understood this on appeal. See, e.g., Jones, 950
76 See ECF No. 207 at 7-8.
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F.3d at 800 (noting that the plaintiffs brought suit, “challenging the constitutionality of the LFO requirement”). The plaintiffs explicitly confirmed their position on the record at the trial, making clear they challenge the requirement to pay LFOs as a condition of voting, whatever the source of that requirement, including Amendment 4.77
Here, as always, the plaintiffs are the masters of their claim. See, e.g., United States v. Jones, 125 F.3d 1418, 1428-29 (11th Cir. 1997). The State cannot redefine the plaintiffs’ claim to the State’s liking and attack only the claim as redefined. So the State’s argument is unfounded.
Further, in closing argument, the plaintiffs said that if their complaints could somehow be construed not to allege that Amendment 4, to the extent it conditions voting on payment of LFOs, is unconstitutional as applied, then they requested leave to amend the complaints to conform to the evidence—that is, to include such a claim.78 No amendment is necessary, because the complaints allege and have been construed all along to include such a claim, and the State has known it all along, or at least from the date when the preliminary injunction was issued. If, however, the complaints were somehow read more narrowly, I would grant leave
77 Trial Tr., ECF No. 417 at 26-27, 48-49. 78 Trial Tr., ECF No. 417 at 27-28; see also Fed. R. Civ. P. 15(b).
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to amend, so that the claim can properly be resolved on the merits. The State would suffer no prejudice.
The officials who are primarily responsible for administering the Florida’s election system and registering voters are the Secretary of State at the state level and the Supervisors of Elections at the county level. The Secretary is not always a proper defendant in an election case. See Jacobson v. Fla. Sec’y of State, No. 1914552, 2020 WL 2049076 (11th Cir. Apr. 29, 2020). But the Secretary has a substantial role in determining whether felons are eligible to vote. Indeed, she has the primary role in determining whether a felon who has registered should be removed from the roll, including on the ground of unpaid LFOs. She does not deny she is a proper defendant here.79
Prior governors have asserted they are not proper defendants in cases of this kind. But here the Governor asserts an interest and says he does not wish to be dismissed. He made the same assertion in the prior appeal, and the Eleventh Circuit, without deciding whether he had a stake in the matter, allowed him to remain in the case. See Jones, 950 F.3d at 805-06. This order takes the same approach.
The Supervisors of Elections have asserted they are not proper defendants, but they, too, have a critical role in registration and removal of felons from the
79 Trial Tr., ECF No. 417 at 43.
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rolls. They are proper defendants, as explained at greater length in denying their motion to dismiss. See ECF Nos. 107, 110 at 7-9, 272 at 60-63; see also Jacobson, 2020 WL 2049076 at *9.
In sum, the plaintiffs have standing, and the Secretary and Supervisors, if not also the Governor, are the officials who can redress the claimed violations. The Secretary and Supervisors, if not also the Governor, are proper defendants. See Ex parte Young, 209 U.S. 123 (1908). VIII. Reenfranchisement Must Comply with the Constitution
When a state decides to restore the right to vote to some felons but not others, the state must comply with the United States Constitution, including the First, Fourteenth, Fifteenth, Nineteenth, and Twenty-Fourth Amendments. It is no answer to say, as the State does, that a felon has no right to vote at all, so a state can restore the right to vote or not in the state’s unfettered discretion. Both the Supreme Court and the Eleventh Circuit have squarely rejected that assertion.
In Richardson v. Ramirez, 418 U.S. 24 (1974), the plaintiffs were felons who had completed their terms in prison and on parole but who, under California law, were still denied the right to vote. The Supreme Court rejected their claim that this, without more, violated the Equal Protection Clause.
Even so, the Court did not say that because a state could choose to deny all felons the right to vote and to restore none of them, the state’s decision to restore
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the vote to some felons but not others was beyond the reach of the Constitution. Quite the contrary. The Court remanded the case to the California Supreme Court to address the plaintiffs’ separate contention that California had not treated all felons uniformly and that the disparate treatment violated the Equal Protection Clause. Id. at 56. The remand was appropriate because when a state allows some felons to vote but not others, the disparate treatment must survive review under the Equal Protection Clause. The same is true here.
It is no surprise, then, that in the earlier appeal in this very case, the Eleventh Circuit took the same approach. The court made clear that the state’s decision on which felons to reenfranchise was subject to constitutional review—indeed to heightened scrutiny. See Jones, 950 F.3d at 809, 817-23.
Similarly, in Johnson v. Governor of Florida, 405 F.3d 1214 (11th Cir. 2005) (en banc), the court upheld Florida’s decision to disenfranchise all felons, subject to restoration of the right to vote by the Florida Executive Clemency Board. Again, though, the court did not say that a state’s decision to restore the vote to some felons but not others was beyond constitutional review. Instead, citing an equal-protection case, the court made clear that even in restoring the right of felons to vote, a state must comply with other constitutional provisions. See id., 405 F.3d at 1216-17 n.1 (citing Harper v. Va. State Bd. of Elections, 383 U.S. 663, 668 (1966)).
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An earlier decision to the same effect is Shepherd v. Trevino, 575 F.2d 1110 (5th Cir. 1978). There the court said a state’s power to disenfranchise felons does not allow the state to restore voting rights only to whites or otherwise to “make a completely arbitrary distinction between groups of felons with respect to the right to vote.” Id. at 1114. As a decision of the Old Fifth Circuit, Shepherd remains binding in the Eleventh. See Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir.1981) (en banc).
Other courts, too, have recognized that provisions restoring the voting rights of felons are subject to constitutional review. See, e.g., Harvey v. Brewer, 605 F.3d 1067, 1079 (9th Cir. 2010) (O’Connor, J.) (holding the Equal Protection Clause applicable to Arizona’s felon-restoration statute but rejecting the plaintiffs’ claim on the merits; noting that a state could not restore the vote only to felons of a specific race or only to those over six feet tall); Johnson v. Bredesen, 624 F.3d 742, 746-50 (6th Cir. 2010) (holding the Equal Protection Clause applicable to Tennessee’s felon-restoration statute but rejecting the plaintiffs’ claim on the merits); Owens v. Barnes, 711 F.2d 25, 26-27 (3d Cir. 1983) (holding the Equal Protection Clause applicable to Pennsylvania’s felon-restoration statute but rejecting the plaintiff’s claim on the merits).
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This unbroken line of decisions puts to rest any assertion that the State can simply do as it pleases when restoring the right to vote to some felons but not others. The State may now have abandoned that position. IX. Inability to Pay
The case involves individuals with at least one felony conviction, with no conviction for murder or a sexual offense, who have completed all prison or jail terms and all terms of supervision, and whose right to vote under Amendment 4 and SB7066 turns entirely on LFOs. There are two distinctions that are critical to the constitutional analysis. The first is between individuals who have paid their LFOs and those who have not. The second involves only individuals who have unpaid LFOs; the distinction is between individuals who can afford to pay the LFOs and those who cannot. In Jones, the focus was on the second distinction. Both are at issue now. There are also equal-protection claims asserting race and gender discrimination, but they are addressed in later sections of this order.
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A. The Proper Level of Scrutiny In Jones, the Eleventh Circuit applied “heightened scrutiny” to the pay-tovote system’s treatment of citizens who are unable to pay the amount at issue—that is, to the distinction between citizens who are able to pay their LFOs and those who are not. The court said heightened scrutiny applies because the system creates “a wealth classification that punishes those genuinely unable to pay fees, fines, and restitution more harshly than those able to pay—that is, it punishes more harshly solely on account of wealth—by withholding access to the ballot box.” Jones, 950 F.3d at 809. The court derived this holding from a long line of Supreme Court decisions. See, e.g., M.L.B. v. S.L.J., 519 U.S. 102 (1996); Bearden v. Georgia, 461 U.S. 660 (1983); Zablocki v. Redhail, 434 U.S. 374 (1978); Tate v. Short, 401 U.S. 395 (1971); Williams v. Illinois, 399 U.S. 235 (1970); Griffin v. Illinois, 351 U.S. 12 (1956). No purpose would be served by repeating here the Eleventh Circuit’s full analysis. Jones settles the issue, and even without Jones, the result would be the same—for the reasons set out in Jones, in the order that Jones affirmed, and in the many Supreme Court decisions on which those holdings relied. The pay-to-vote system, at least as applied to those unable to pay, is subject to heightened scrutiny. Jones did not address the proper level of scrutiny for the pay-to-vote system as applied to citizens who are able to pay—that is, for the distinction between
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citizens who have paid their LFOs and those who can afford to pay but have not done so. The system still impacts voting, a feature that, in any other circumstance, would trigger heightened scrutiny. Indeed, a wide array of state election laws, even those without a direct impact on the right to vote, are subject to more than typical rational-basis scrutiny. A court must identify and weigh “the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiffs seek to vindicate against the precise interests put forward by the State as justifications for the burden imposed by its rule, taking into consideration the extent to which those interests make it necessary to burden the plaintiff’s rights.” Burdick v. Takushi, 504 U.S. 428, 434 (1992) (quoting Anderson v. Celebrezze, 460 U.S. 780,789 (1983) (internal quotation marks omitted)).
Nonetheless, in Shepherd v. Trevino, 575 F.2d 1110, 1115 (5th Cir. 1978), the court held a reenfrachisement law subject to only rational-basis scrutiny. The law afforded more favorable treatment to felons convicted in Texas state court than to those convicted in federal court. As Jones makes clear, Shepard does not require rational-basis scrutiny when other factors are present, including, for example, race (as noted in Shepard itself) or wealth (as involved in Jones). And Shepard predated Anderson and Burdick. Still, no later, binding decision directly contravenes Shepard. Absent other grounds for applying a higher level of scrutiny, Shepard remains a binding decision that requires application of only rational-basis scrutiny.
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This order applies heightened scrutiny to the pay-to-vote system as applied to those unable to pay (as Jones requires) and rational-basis scrutiny to the system as applied to those able to pay (as Shepard requires).
B. Heightened Scrutiny Heightened scrutiny requires an analysis of the legitimate governmental interests allegedly served by a challenged provision. Before entry of the preliminary injunction, the State’s primary argument was that in deciding to reenfranchise some citizens but not others, a state can do as it wishes, with no meaningful constitutional review. As set out above, that is plainly incorrect. The State also briefly identified a single legitimate interest allegedly served by the payto-vote system: the interest in reenfranchising only those felons who have completed their sentences. The State went further in its appeal of the preliminary injunction, identifying additional interests allegedly served by the pay-to-vote system, including punishment, enforcing its laws, debt collection, and administrative convenience. But the Eleventh Circuit held they all fell short. The evidence now in the record after a full trial further support the Eleventh Circuit’s analysis. The State has not identified any additional interests allegedly served by the pay-to-vote system. When reminded, late in closing argument at the end of the
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trial, that the State had identified interests on appeal but nothing more in this court, the State said only that it stood by whatever it said on appeal.80
Jones thus settles the question whether the pay-to-vote system, as applied to citizens who are genuinely unable to pay their LFOs, survives heightened scrutiny. It does not. The plaintiffs are entitled to prevail on their claim that they cannot be denied the right to vote based on failure to pay amounts they are genuinely unable to pay.
C. Rational-Basis Scrutiny Jones expressed “reservations” about whether the pay-to-vote system, as applied to those genuinely unable to pay, “would pass even rational basis scrutiny.” Jones, 950 F.3d at 809. The record now shows the reservations were well founded. First, the evidence shows the system does not pass rational-basis scrutiny under the analysis set out in Jones. Second, the evidence shows additional irrationality: the State has shown a staggering inability to administer the system and has adopted a bizarre position on the amount that must be paid. The State’s actions now call into question whether the pay-to-vote system is rational even as applied to those who are able to pay. Jones noted two possible approaches to rational-basis scrutiny. First, the court said the issue might be whether the pay-to-vote system is rational as applied
80 See Trial Tr., ECF No. 417 at 71-74.
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to felons genuinely unable to pay their LFOs. Second, the court said the issue might be only whether the pay-to-vote system is rational as applied to the universe of felons with LFOs, including those who both can and cannot pay. On this second view, a plaintiff cannot assert an individual as-applied challenge to a provision that is subject to only rational-basis scrutiny; such a provision need only be rational in its typical application. Jones did not definitively resolve the question of which of these approaches is appropriate—and there was no need for a resolution, because the court applied heightened scrutiny.
Following the Eleventh Circuit’s lead, this order takes on these rational-basis issues, first addressing which approach is proper, then addressing each in turn.
(1) The Proper Approach to Rational-Basis Scrutiny The better view is that a plaintiff can assert an individual as-applied challenge to a provision that is subject to rational-basis review, just as a plaintiff can assert an as-applied challenge to a provision that is subject to strict or heightened scrutiny. The level of scrutiny affects the analysis on the merits, but there is no reason to preclude a plaintiff from asserting that a provision is unconstitutional as applied to the plaintiff, regardless of the proper level of scrutiny. Quite the contrary. Standing is a prerequisite to federal jurisdiction. To establish standing, a plaintiff must show a concrete and particularized injury. See Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548-50 (2016). This makes it more
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appropriate, not less, for a plaintiff to focus on application of a challenged provision to the plaintiff, not just to others. It is thus not surprising that, as Jones recognized, the Supreme Court has on occasion “considered the rationality of a statute as applied to particular plaintiffs without opining on its rationality more generally.” Jones, 950 F.3d at 814 (citing City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 435 (1985)).
To be sure, administrative convenience is a legitimate state interest that in most circumstances provides a rational basis for line-drawing, even when some affected individuals fall on the wrong side of the line—when some individuals are treated in a manner that, but for administrative convenience, would make little or no sense. But this is a merits issue, not a question of whether the plaintiff may assert an as-applied challenge in the first instance.
As it turns out, the outcome here is the same regardless of which approach to rational-basis scrutiny is applied.
(2) Rational-Basis Scrutiny as Applied to the Plaintiffs First, if an individual as-applied challenge can be brought in a rational-basis case, Jones settles the question, holding the pay-to-vote system irrational as applied to individuals who are unable to pay:
[I]f the question on rational basis review were simply whether the LFO requirement was rational as applied to the truly indigent— those genuinely unable to meet their financial obligations to pay fees and fines, and make restitution to the victims of their crimes—
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we would have little difficulty condemning it as irrational. Quite simply, Florida’s continued disenfranchisement of these seventeen plaintiffs is not rationally related to any legitimate governmental interest.
Jones, 950 F.3d at 813.
(3) Rational-Basis Scrutiny of the Mine-Run Case
Jones said the outcome under the second approach—the approach looking
not at application of the pay-to-vote requirement to those unable to pay but instead
to all felons affected by the requirement—might turn on the proportion of felons on
each side of the line. The court said:
If rational basis review, then, generally is designed to ask only if the codification has some conceivable relation to a legitimate interest of the state, we would readily say that the LFO requirement as applied to the whole class of felons is rational. The analysis becomes more difficult, however, when the requirement is irrational as applied to a class of felons genuinely unable to pay if this class of the impecunious actually resembles the mine-run felon who has otherwise completed the terms of his sentence. Put another way, if the LFO requirement is irrational as applied to those felons genuinely unable to pay, and those felons are in fact the mine-run of felons affected by this legislation, then the requirements may be irrational as applied to the class as a whole.
Id. at 814 (emphasis in original).
The record now shows that the mine-run of felons affected by the pay-to-
vote requirement are genuinely unable to pay.81 I find as a fact that the
81 See Trial Tr., ECF No. 388 at 61-62, 73-88; Trial Tr., ECF No. 396 at 16-23, 2934, 37-40, 42-44, 84, 90-93, 99-100; Trial Tr., ECF No. 393 at 157-162; Pls.’ Ex.
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overwhelming majority of felons who have not paid their LFOs in full, but who are otherwise eligible to vote, are genuinely unable to pay the required amount, and thus, under Florida’s pay-to-vote system, will be barred from voting solely because they lack sufficient funds.82
Indeed, given the State’s other methods for enforcing the requirement to pay, there is no reason to believe—and the Legislature had no reason to believe—that any significant number of felons were able to pay but chose not to. The State’s other enforcement methods include not only those available to ordinary creditors but also the ability to suspend a felon’s driver’s license and the ability to imprison a felon who is still on supervision and chooses not to pay.
(4) Administrative Irrationality The analysis to this point has tracked Jones. First, as applied to those who are unable to pay, the pay-to-vote system is subject to heightened scrutiny and fails. Second, as applied to those who are unable to pay, the pay-to-vote system fails even rational-basis scrutiny. Third, if as-applied challenges are not available to a subset of those affected by a provision that is subject to only rational-basis
894, ECF No. 360-48; Pls.’ Ex. 299, ECF No. 349-5; Pls.’ Ex. 156, ECF No. 34815 at 4-7, 10-18; Pls’ Ex. 298, ECF No. 349-41; Pls.’ Ex. 462, ECF No. 353-27; Pls.’ Ex. 876, ECF No. 360-34. 82 The evidence supporting this finding includes the expert testimony of Dr. Daniel A. Smith. I credit Dr. Smith’s testimony in full.
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scrutiny, the pay-to-vote system still fails, because the system is irrational as applied to the mine-run of affected felons and thus is irrational as a whole.
What has been said to this point would be enough to resolve this claim. But there is more. The State has shown a staggering inability to administer the pay-tovote system and, in an effort to reduce the administrative difficulties, has largely abandoned the only legitimate rationale for the pay-to-vote system’s existence.
The administrative difficulties arise primarily at three levels. 1. Determining the Original Obligation
First, many felons do not know, and some have no way to find out, the amount of LFOs included in a judgment.83 In recent years, most Florida counties, but not all, have used a standard form of judgment. If a felon knows to obtain from the county of conviction a copy of the judgment, the original amount of LFOs will usually, but not always, be clear.84
Few individuals will know, however, that they must obtain copies of their judgments. Most will start with the internet or telephone or perhaps by going in
83 See Trial Tr., ECF No. 396 at 51-58, 81-83, 92, 98-99; Trial Tr., ECF No. 393 at 168-69, 172; Prelim. Inj. Hr’g Tr., ECF No. 204 at 163-65; see also Pls.’ Ex. 7, ECF No. 152-6 at 3. 84 See Trial Tr., ECF No. 396 at 102; Trial Tr., ECF No. 393 at 187; see, e.g., Defs.’ Ex. 17C, ECF No. 148-21 at 4; Defs.’ Ex. 17F, ECF No. 148-23 at 10.
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person to the office of the county Supervisor of Elections or Clerk of Court. Trying to obtain accurate information in this way will almost never work. A group of welltrained, 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.85 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.86
For felons who are astute enough or learn that they need copies of their judgments to determine how much they must pay to vote, the problem is not solved. Few felons already have copies of their judgments, especially after any term in custody or when years or decades have passed.87 Many counties charge a fee for a copy of a judgment.88 Many felons cannot afford to pay a fee, and
85 See Pls.’ Ex. 892, ECF No. 360-47; see also Trial Tr., ECF No. 388 at 143-206, 221-25. 86 See Pls.’ Ex. 892, ECF No. 360-47 at 9-10, 38-56, 67-68; see also Trial Tr., ECF No. 388 at 185-86. I credit the testimony of Dr. Traci R. Burch, the professor responsible for this research. 87 See Trial Tr., ECF No. 396 at 56; Prelim. Inj. Hr’g Tr., ECF No. 204 at 163-65, 172. 88 See Trial Tr., ECF No. 388 at 229; Pls.’ Ex. 892, ECF No. 360-47 at 16.
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requiring a potential voter to pay a fee that is not part of a felony sentence presents its own set of constitutional issues.
In any event, for older felonies, a copy of the judgment may not be available at all, or may be available only from barely legible microfilm or microfiche or from barely accessible archives, and only after substantial delay.89 As one example, a Supervisor of Elections said she had been unable to assist a person with a 50-year-old conviction for which records could not be found; the Supervisor could not determine the person’s eligibility to vote.90 And even when records can eventually be found, delaying a voter’s ability to register presents its own set of constitutional issues.
Even if a felon manages to obtain a copy of a judgment, the felon will not always be able to determine which financial obligations are subject to the pay-tovote requirement. Judgments often cover multiple offenses, with sentences imposed simultaneously, often without matching financial obligations with specific offenses. The offenses may include felonies on which a conviction is entered, felonies on which adjudication is withheld, and misdemeanors. Only felonies on which a conviction is entered disqualify a felon from voting and thus may be
89 See Trial Tr., ECF No. 396 at 81-83; Trial Tr., ECF No. 393 at 170-72, 186-88. 90 Trial Tr., ECF No. 393 at 19-20.
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subject to the pay-to-vote system. But when a judgment does not allocate financial obligations to specific offenses, it is impossible to know what amount must be paid to make the person eligible to vote.
An example well illustrates the problem. The Director of the Division of Elections—the ranking state official actively working on these issues—was shown at trial the judgment of Mr. Mendez, one of the 17 named plaintiffs.91 The judgment applies to both a felony and a misdemeanor and includes a $1,000 fine, but the judgment does not indicate whether the fine applies to the felony or the misdemeanor or partly to one and partly to the other. The Director said she did not know whether Mr. Mendez would be allowed to vote only upon payment of the fine—that this was an issue that would require further analysis.92
In sum, 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.
2. Determining the Amount that Has Been Paid Determining the amount that has been paid on an LFO presents an even greater difficulty. It is often impossible.
91 See Trial Tr., ECF No. 408 at 190-200; Defs.’ Ex. 17N, ECF No. 148-31. 92 Trial Tr., ECF No. 408 at 197-98.
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It does not help that the State has adopted two completely inconsistent methods for applying payments to covered obligations. This order addresses each method in turn. For convenience, the order attaches labels to each method that, while not entirely accurate, will make explanations less cumbersome.
(a) The Actual-Balance Method The most obvious method for determining whether an obligation has been paid is to determine the original amount of the obligation and to deduct any principal payments that have been made on the obligation. This happens every day across the nation and indeed across the world. It happens for mortgages, car loans, student loans, credit cards, and all manner of installment obligations. When payments are applied in this manner, what remains is the actual balance owed on the obligation. This order refers to this method of applying payments as the actualbalance method. The most obvious method for determining the amount that must be paid under the State’s pay-to-vote system is the actual-balance method. Suppose, for example, a judgment requires a felon to pay $300. The felon is unable to pay all at once and so sets up a payment schedule. The county charges, and the felon pays, a $25 fee for setting up the payment schedule.93 In due course the county turns the
93 Trial Tr., ECF No. 396 at 29.
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matter over to a collection agency.94 The felon pays $100 to the collection agency, which keeps $40 as its fee and turns over $60 to the county for application on the felon’s debt. The county’s records will show the outstanding balance as $240, calculated as $300 - $60. Using the actual-balance method, the felon will be required to pay $240 to vote.
The hypothetical is realistic in most respects. Many counties, perhaps most, assess a $25 fee for setting up a payment plan.95 Most counties, perhaps all, routinely turn accounts over to collection agencies. Collection agencies routinely charge fees of up to 40% and routinely remit to a county only the net remaining after deducting the fee.96 County records routinely show only the net payment, not the amount retained by the collection agency.97 The only unrealistic part of the
94 Id. at 29, 32, 93; see also Trial Tr., ECF No. 393 at 201-02, 206-07. Some of the individual plaintiffs have had their outstanding LFOs sent to a collections agency. See, e.g., Pls.’ Ex. 24, ECF No. 152-23; Pls.’ Ex. 11, ECF No. 152-10; Trial Tr., ECF No. 388 at 41-42; Trial Tr., ECF No. 397 at 66-67. 95 See Fla. Stat. § 28.246(5); see also Trial Tr., ECF No. 396 at 29; Pls.’ Ex. 15, ECF No. 152-14 at 13. 96 See Fla. Stat. §§ 938.35, 28.246(6); Trial Tr., ECF No. 393 at 190, 206-07; Prelim. Inj. Hr’g, ECF No. 204 at 96-98. 97 Trial Tr., ECF No. 388 at 221-25; Trial Tr., EF No. 393 at 190, 206-07; Prelim. Inj. Hr’g Tr., ECF No. 204 at 98.
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hypothetical is this: in recent years, all felons have been assessed fees well in excess of $300.
When testifying at trial, the Assistant Director of the Division of Elections initially testified, in effect, that the actual-balance method is the proper method for determining how much a felon must pay to vote.98 In response to a similar hypothetical—the same as posed above but without the $25 fee for setting up a payment plan—the Assistant Director testified that the felon would be required to pay $240 to vote, calculated as the initial $300 obligation less the net payment of $60.99 The Assistant Director also acknowledged an email she sent to a Supervisor of Elections in September 2019 using the actual-balance method and concluding, based on this method, that a specific felon was not eligible to vote.100
In November 2019, the Work Group that SB7066 established to study administration of this system made recommendations.101 One was that the State establish a system for clearly matching payments to the specific obligations to which they applied. This matters under the actual-balance method but not under the
98 Trial Tr., ECF No. 413 at 153-55. 99 Id. 100 Id. at 157-161; see also Pls.’ Ex. 854, ECF No. 360-12. 101 See Pls.’ Ex., 279 & Defs’ Ex. 27, ECF No. 240-1 at 19.
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State’s newly adopted alternative method, as addressed below. The recommendation thus makes clear that the Work Group believed the actual-balance method was the proper method for determining the amount that must be paid to vote.
The actual-balance method was also consistent with the State’s position in this litigation. In opposing the preliminary injunction, the State said a felon could call the Clerk of Court to determine the “outstanding” amount of fees and costs.102 This could only refer to the actual-balance method, which requires the Clerk to know the net amount of payments that have been applied on an obligation, not the gross amount of all payments, whether or not applied on the obligation, as required for application of the State’s alternative method, as addressed below.
The record includes an example. A Clerk’s records showed a payment of $76.92.103 The plaintiffs’ expert managed to work backwards and figure out that, in all likelihood, this resulted from a $100 payment to a collection agent, whose fee agreement allowed it to retain 30% of the net payment.104 Dividing $100 by 1.3 yields a payment to the Clerk of $76.92 and a fee to the agent of $23.08. But
102 See ECF No. 132 at 28. 103 See Trial Tr., ECF No. 388 at 199-202, 221-25. 104 Id. at 221-25.
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nothing in the Clerk’s records showed this is what happened. If one’s goal was to determine total payments, rather than the outstanding balance, there would be no way to do it—unless, perhaps, an expert assisted by a team of Ph. D. candidates had time to pour over records and work backwards. This could not have been what the State meant.
Similarly, in the State’s brief in the Eleventh Circuit, the State repeatedly said the requirement was to pay any “outstanding” LFOs.105
Nothing in this record suggests that before March 2020, anyone believed or even considered it possible that the amount a felon would be required to pay to vote would properly be calculated using anything other than the actual-balance method. It is not surprising, then, that one Supervisor of Elections testified she had never heard of the alternative method the State now embraces.106
As the litigation progressed, though, it became evident that the actualbalance method presented substantial, perhaps insurmountable constitutional difficulties. The State’s records were incomplete and inconsistent, especially for older felonies, and often did not match payments with obligations. This made it
105 See, e.g., Jones v. Govenor of Fla., No. 19-14551, Appellant’s Br. at 19, 41, 43. 106 Trial Tr., ECF No. 413 at 169-70; Trial Tr., ECF No. 393 at 38-39,
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impossible to calculate the balance owed in many cases. An expert analysis showed inconsistencies for 98% of a randomly selected group of felons.107
The case of one named plaintiff, Clifford Tyson, is illustrative. 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.108 The group had combined experience of over 100 years.109 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.110
Other examples abound. Restitution is usually payable only to the victim directly.111 A sentence often, indeed usually, includes an order prohibiting the defendant from contacting the victim.112 The defendant may have no record of amounts paid, especially if they were paid years or decades ago, and may never
107 See Pls.’ Ex. 892, ECF No. 360-47 at 9. 108 Trial Tr., ECF No. 393 at 185. 109 Id. 110 Id. at 183-86. 111 Id. at 157; Prelim. Inj. Hr’g Tr., ECF No. 204 at 104-05. 112 See, e.g., Trial Tr., ECF No. 397 at 60.
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have known how the victim applied them—whether, for example, amounts were credited to interest, and if so, in what amount. The State has no record of restitution payments at all, except in the smaller number of cases in which restitution is payable to or through the Clerk of Court or Department of Corrections.113
When this information is unknown, it may be unknowable. Individual victims may have died or moved to parts unknown, and corporate victims may have gone out of business or been merged into other entities. Indeed, there may be nobody to pay, even if a felon is willing and able to make a payment. Insisting on payment of amounts long forgotten seems an especially poor basis for denying the franchise.
In addition, in many cases, probably most, a felon could not pay the outstanding balance without being required to pay additional amounts—amounts that were not included in a sentence and that a felon could not, under any plausible theory, be required to pay as a condition of voting.
Two examples illustrate the problem. First, suppose a felon owes $100 and wishes to pay it to become eligible to vote. If the debt has been turned over to a collection agency, the Clerk of Court will not accept a payment. The felon will have to pay the collection agency a
113 Trial Tr., ECF No. 393 at 157; Prelim. Inj. Hr’g Tr., ECF No. 204 at 104-05.
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greater amount, as much as $166.67, to produce a net payment of $100 to the Clerk. It is hard to explain why a felon should have to pay the additional $66.67 to be able to vote.
Second, if restitution is payable not directly to the victim but through the Clerk of Court or Department of Corrections, the Clerk or Department imposes a charge for processing the payment—sometimes a specific amount, sometimes a percentage. The record includes, as an example, a 4% fee.114 On that basis, a felon who owes $100 in restitution will have to pay $104 to vote—not just the $100 included in the sentence. It is hard to explain why a felon should have to pay the additional $4 to be able to vote. Indeed, it is hard to explain why the $4 charge is not a tax prohibited by the Twenty-Fourth Amendment.
That the $4 fee is a tax can be shown by comparing a purchase to a theft. If an individual buys a grill for $100, the state exacts a 6% sales tax; the buyer must pay $106. If an individual steals the grill, the court will require restitution of the same $100, and, upon payment, the state may exact a 4% charge. If the $6 charge is a tax, as it plainly is, it is hard to explain why the $4 charge is not also a tax. There is no plausible theory under which a felon can be required to pay a $4 tax to vote. The same analysis applies when the State’s take is not 4% but a flat fee.
114 See, e.g., Pls.’ Ex. 11, ECF No. 152-10 at 3-4, 34-38.
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The takeaway: under the actual-balance method, determining what part of an LFO has been paid is sometimes easy, sometimes hard, sometimes impossible.
(b) The Every-Dollar Method To avoid some of these intractable constitutional difficulties, in March 2020, less than two months before the trial, the State abruptly changed course.115 The State adopted what I referred to at trial as the “first-dollar method,” an appellation the parties adopted, not as accurate but as convenient, and perhaps out of deference to the court. A better description is the “every-dollar method,” a description that is used in this order. The State decided, entirely as a litigating strategy, that instead of having to pay the outstanding balance of a specific obligation, an individual would be required only to make total payments on any related obligation, whether or not included in the sentence itself, that added up in the aggregate to the amount of the obligations included in the sentence.116 Put differently, the State decided to retroactively reallocate payments, now applying every payment to the obligations in the original sentence, regardless of the actual purpose for which the payment
115 See Defs.’ Ex. 167, ECF No. 343-1; Defs.’ Ex. 144, ECF No. 352-11; see also Trial Tr., ECF No. 408 at 127-30; Trial Tr., ECF No. 413 at 169-70. 116 Trial Tr., ECF No. 413 at 169; Trial Tr., ECF No. 308 at 130, 165, 170.
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was made or how it was actually applied. And the State decided to treat future payments the same way.
The approach can be illustrated with the same hypothetical set out above. Recall that the judgment required payment of $300; the county imposed, and the felon paid, a $25 fee to set up a payment plan; and the felon paid $100 to a collection agency, which kept $40 and remitted $60 to the county. This left an actual balance of $240, calculated as $300 - $60. Now, though, the State says the individual needs to pay only $175 to vote, calculated as $300 - $25 - $100. The State treats the $25 fee that the felon paid to set up a payment plan not as having been paid on that fee but as having been paid on the original $300 obligation. And the State treats the entire $100 paid to the collection agency as having been paid on the original $300 obligation, even though $40 of that amount never made it to the county, was not credited on the $300 obligation, and is not even reflected in the county’s records.117
If the every-dollar approach accomplished its goal of shoring up the State’s position in this litigation, it would present, for the affected part of the plaintiffs’ claims, a voluntary-cessation issue. A “defendant’s voluntary cessation of allegedly unlawful conduct ordinarily does not suffice to moot a case.” Friends of
117 See Trial Tr., ECF No. 393 at 190-91, 206-07; Trial Tr., ECF No. 388 at 22125; Prelim. Inj. Hr’g, ECF No. 204 at 97-98.
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the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 174 (2000). The same is true for an individual claim within a case. A claim becomes moot only “if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Id. at 189 (internal quotation marks and citations omitted).
When the defendant is a governmental entity, “there is a rebuttable presumption that the objectionable behavior will not recur.” Troiano v. Supervisor of Elections in Palm Beach Cty., 382 F.3d 1276, 1283 (11th Cir. 2004) (emphasis in original). Relevant considerations include whether the change in the governmental entity’s position was adopted only in response to litigation and whether the change has been incorporated into a statute or rule or formal policy. See Rich v. Sec’y, Fla. Dep’t of Corr., 716 F.3d 525, 531-32 (11th Cir. 2013); Atheists of Fla., Inc. v. City of Lakeland, 713 F.3d 577, 594 (11th Cir. 2013). Here the every-dollar method was adopted only in response to the litigation; it is not set out in a statute or rule or even in a formal policy; and it could be abandoned just as easily as it was adopted. The State could easily revert to the actual-balance method.
As it turns out, the every-dollar method makes the pay-to-vote system’s constitutional deficiencies worse, not better; the State’s change of course undermines—it does not shore up—the State’s position. This makes the discussion of voluntary cessation largely academic.
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The explanation is this. 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. Four illustrations make the point.
First, recall that in the hypothetical set out twice above, the judgment required payment of $300; the county imposed, and the felon paid, a $25 fee to set up a payment plan; and the felon paid $100 to a collection agency, which kept $40 and remitted $60 to the county. This left an actual balance of $240, calculated as $300 - $60. Under the every-dollar approach, though, the State says the individual can vote upon payment of only $175, calculated as $300 - $25 - $100. The $175 payment will leave a balance of $65 still owed on the criminal sentence—an amount whose payment can be enforced as part of the criminal case. But the State says the felon can vote. The debt to society, defined as compliance with the sentence, has not been paid.
Second, recall that in a different hypothetical set out above, $100 in restitution could be paid only by tendering $104 to the entity designated to collect it, perhaps the Department of Corrections. The Department would take its 4% fee, or $4, and send the remaining $100 forward as payment to the victim in full. Under
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the every-dollar approach, however, the individual could vote upon payment of just $100, not $104. From a $100 payment, the Department would still take its 4% fee and so would apply the payment as $3.85 to the Department and $96.15 to the victim. The State says the felon could vote, even though the victim would still be owed $3.85.118 The same analysis would apply if the Department charged a flat fee, not a percentage. Either way, the debt to society, defined as compliance with the sentence, would not have been paid.
Third, Mr. Tyson was convicted of multiple felonies long ago. He was sentenced to probation. The sentences included restitution, now paid in full, and fees with an outstanding balance Mr. Tyson is unable to pay. While on probation, Mr. Tyson was required to pay, and sometimes did pay, $10 per month toward the cost of supervision.119 As the State acknowledges, when a felon is required to pay the cost of supervision, this is not an amount that must be paid to vote; the amount is not part of the sentence but instead accrues later.120 Under the every-dollar method, though, the amount is credited against the amount that must be paid to
118 See, e.g., Trial Tr., ECF No. 408 at 173-75. 119 See Prelim. Inj. Hr’g Tr., ECF No. 204 at 174-75. 120 See ECF No. 408 at 103; Fla. Stat. § 98.0751(2)(a)5.c. (stating that “all terms of sentence” does not include amounts that “accrue after the date the obligation is ordered as part of the sentence”).
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vote. Mr. Tyson has not paid all the LFOs that were imposed as part of his sentences. But under the every-dollar method, he may be eligible to vote, even though his debt to society, defined as compliance with the sentence, has not been paid.
Fourth, Christina Paylan’s sentence included $513 in fees she has not paid.121 She took an appeal and paid $1,554.65 toward the cost of preparing the record. The fact that she pursued an appeal should have nothing to do with whether she can vote. But under the State’s every-dollar approach, she is eligible to vote, even though her LFOs were not paid, because her payment for appellate costs exceeded the LFOs. She is eligible to vote, that is, even though her debt to society, defined as compliance with the sentence, has not been paid.
This fourth example shows just how far the State is willing to stray from any approach that makes sense. Consider three individuals who committed the same crime and drew the same sentence, including the same LFOs. All three are out of prison and off supervision. The first individual has money, pays the LFOs, and can vote. The second and third have no money, owe the same amount on their LFOs, and cannot pay it. The only difference between the second and third is this: the second found a relative who put up funds for an appeal, while the third took no appeal. Under the State’s pay-to-vote system, coupled with the every-dollar
121 See Pls.’ Ex. 854, ECF No. 360-12; Trial Tr., ECF No. 413 at 157-60.
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method, the first and second individuals can vote; the third cannot. The first can vote because she has money. The second can vote because she took an appeal. This should not disqualify a person from voting—but it also should not make a person eligible who otherwise would not be. The third cannot vote because she does not have money and did not take an appeal. This result is bizarre, not rational.
The amounts in some of these examples are small, but the numbers could be multiplied by 10 or 100 or 1,000, and the principle would be the same. Moreover, the Supreme Court has made clear that when the issue is paying to vote, even $1.50 is too much. See Harper v. Va. State Bd. of Elections, 383 U.S. 663, 664 n.1, 668 (1966). On voting issues, the old British maxim holds true: in for a penny, in for a pound.
Many more examples could be given showing the irrationality of the pay-tovote system when coupled with the every-dollar method. Individuals will be allowed to vote with unpaid restitution, even when they can afford to pay. The same will be true for fines, fees, and costs. In sum, the every-dollar method thoroughly departs from, and thus undermines, the debt-to-society rationale.
What the Fifth Circuit said of a different reenfrachisement argument is equally true of Florida’s every-dollar argument: “The ingenuity of this argument is matched only by its disingenuousness.” Shephard v. Trevino, 575 F.2d 1110, 1113 (5th Cir. 1978). The every-dollar approach is contrary to the State’s original
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understanding, was 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.
In any event, 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.
3. Processing Registrations in the Division of Elections The Secretary of State’s Division of Elections screens all newly registered voters for felony convictions.122 The Division also periodically screens previously registered voters to determine whether they have new convictions.123 Before Amendment 4, the process consisted primarily of matching two sets of data, one consisting of registrants, the other of felons. The Division ordinarily required matches on at least three of four data points: full name, driver’s license number, social security number, and state identification card number.124 If there was a match—the registrant was a felon—the Division needed only to check on restoration of rights, either through the Florida Executive Clemency Board or
122 See Defs.’ Ex. 16, ECF No. 148-16 at 6-8; see also Fla. Stat. § 98.075(5). 123 See Defs.’ Ex. 16, ECF No. 148-16 at 6-8; see also Fla. Stat. § 98.075(5). 124 Defs.’ Ex. 16, ECF No. 148-16 at 7-8.
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under another state’s laws.125 The Division reported to the proper Supervisor of Elections any match that, in the Division’s terminology, was not “invalidated” through restoration of rights. The Division was staffed to handle the workload.
Amendment 4 and SB7066 increased the workload by several orders of magnitude. The question was no longer just whether there was a match that had not been invalidated by the Clemency Board or under another state’s laws. Now the Division had to address three new questions: whether a matched individual had a felony conviction for murder or a sexual offense, whether the individual was in custody or on supervision, and whether the individual had unpaid LFOs.126
Florida law requires a budget analysis in connection with proposed legislation. The analysis for the bill that was rolled into SB7066 projected a need for 21 additional employees to process the increased workload.127 The estimate was almost surely too low. But the Legislature allocated no funds for additional employees, and the Division has hired none.
As of the time of trial, the Division has 85,000 pending registrations of individuals with felony convictions—registrations in need of screening for murder
125 Id. The Division uses an unreliable website to assess other states’ laws. 126 See id. at 8-9. 127 Pls.’ Ex. 313, ECF No. 349-14 at 27.
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and sexual offenses, for custody or supervision status, and for unpaid LFOs.128 In the 18 months since Amendment 4 was adopted, the Division has had some false starts but has completed its review of not a single registration. Indeed, while the Division has worked on murder and sexual offenses and on custody or supervision status, the Division has not even begun screening for unpaid LFOs, with this exception: the Division’s caseworkers have preliminarily screened the 17 named plaintiffs for unpaid LFOs, and the Division Director has reviewed the work on some but not all of the 17. None of the 17 is ready to go out.129
Even without screening for unpaid LFOs, all the Divison’s caseworkers combined can process an average of just 57 registrations per day.130 The LFO work, standing alone, is likely to take at least as long as—probably much longer than—the review for murder and sexual offenses and for custody or supervision status. Even at 57 registrations per day, screening the 85,000 pending registrations will take 1,491 days. At 261 workdays per year, this is a little over 5 years and 8 months. The projected completion date, even if the Division starts turning out work today, and even if screening for LFOs doesn’t take longer than screening for
128 Trial Tr., ECF No. 408 at 185-86; Trial Tr., ECF No. 413 at 84. 129 Trial Tr., ECF No. 408 at 199-200. 130 Id. at 146, 185-86.
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murders, sexual offenses, custody, and supervision, is early in 2026. With a flood of additional registrations expected in this presidential election year, the anticipated completion date might well be pushed into the 2030s.131
To be sure, days before the trial began, the Department of State entered into an interagency agreement with the Florida Commission on Offender Review. The Commission apparently will provide staffing assistance. But it is unlikely the assistance will offset the work needed to process LFOs, let alone cut into the work needed on murder and sexual offenses and custody or probation status. The Division’s figure of 57 registrations per day is still the best estimate of the overall processing rate. The State has provided no evidence that, even with the Commission’s help, it will be able to complete its review of the pending and expected applications earlier than 2026.132
The takeaway: 18 months after Amendment 4 was adopted, the Division is not reasonably administering the pay-to-vote system and has not been given the resources needed to do so.
4. The Deterrent Effect on Registrants Because of the State’s failure to administer the pay-to-vote system reasonably, many affected citizens, including some who owe amounts at issue and
131 See Trial Tr., ECF No. 388 at 104-05. 132 See Defs.’ Ex. 168, ECF No. 343-2; see also Trial Tr., ECF No.408 at 147.
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some who do not but cannot prove it, would be able to vote or even to register only by risking criminal prosecution. It is likely that if the State’s pay-to-vote system remains in place, some citizens who are eligible to vote, based on the Constitution or even on the state’s own view of the law, will choose not to risk prosecution and thus will not vote.
The State says felons who register in good faith need not fear prosecution and those who are eligible will not be deterred from registering or voting. The assertion rings hollow. It is true that a conviction for a false affirmation in connection with voting requires a showing of willfulness, see Fla. Stat. § 104.011, and a conviction for illegally voting requires a showing of fraud, see id. § 104.041. For at least four reasons, though, the State’s confidence that prospective voters will not be unjustifiably deterred is misplaced.
First, SB7066 provides immunity from prosecution for those who registered in good faith between January 8, 2019, when Amendment 4 took effect, and July 1, 2019, when SB7066 took effect. A proposal to add a good-faith provision for other registrants was rejected.133
133 See Rep. Geller, Proposed Amendment 239235 to HB 7089 (2019), available at https://www.flsenate.gov/Session/Bill/2019/7089/Amendment/239235/PDF.
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Second, the State’s registration form includes a warning that a false statement is a felony; the warning omits the statutory requirement for willfulness.134 Accurate advice of the penalties for submitting a false registration is proper, indeed required. See 52 U.S.C. § 20507(a)(5). But here the advice is not complete; an individual attempting to register is told, in effect, that the individual will have committed a felony if it turns out the individual was not eligible, regardless of willfulness. The deterrent effect is surely strong on individuals who have served their time, gone straight, and wish to avoid entanglement with the criminal-justice system.135 Indeed, the deterrent effect is surely strong for individuals who are in fact eligible but are not sure of that fact. That the Director of the Division of Elections cannot say who is eligible makes clear that some voters also will not know.
Third, the record includes evidence that a local official—one whose home address was protected from public disclosure under Florida law—used her City
134 See Pls.’ Ex. 35, ECF No. 152-33 (pre-SB7066 registration form); Pls.’ Ex. 36, ECF No. 152-34 (post-SB7066 registration form); Defs.’ Ex. 169, ECF No. 343-3 (April 17, 2020 draft registration form); Defs.’ Ex. 170, ECF No. 343-4 (April 17, 2020 draft registration form). 135 See Trial Tr., ECF No. 397 at 73; see also Prelim. Inj. Hr’g Tr., ECF No. 204 at 172, 153.
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Hall address when registering to vote.136 This was improper but perhaps understandable; some public officials and law enforcement officers whose jobs make them vulnerable to retaliation use office addresses for mail and other purposes. The official was charged and entered into a deferred-prosecution agreement. In Florida, where any voter can challenge any other voter’s eligibility, and where a mistake can lead to a prosecution, it is hardly surprising that a felon who is newly eligible to vote but unsure of the rules would decide not to risk it.
Fourth, a Supervisor of Elections who advocated voter registration advised one or more prospective voters who were unsure of their eligibility to submit registrations so the issues could be addressed. The Secretary of State at that time— not the current Secretary—sent the Supervisor a strident letter instructing him not to do this again.137 This casts doubt on the State’s professed tolerance for goodfaith mistakes or even for good-faith efforts to determine eligibility.
The takeaway: it is certain that some eligible voters will choose not to vote because of the manner in which the State has administered—and failed to administer—the pay-to-vote system.
136 See Pls.’ Ex. 288, ECF No. 348-25; Pls.’ Ex. 289, ECF No. 286-19. 137 Pls.’ Ex. 82, ECF No. 152-79.
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(5) A Concluding Word on Rational-Basis Scrutiny The State’s inability to reasonably administer the pay-to-vote system, including its inability in many instances even to determine who is eligible to vote and who is not, renders the pay-to-vote system even more irrational than it otherwise would be. Far from undermining the Eleventh Circuit’s conclusion that the pay-to-vote system is unconstitutional as applied to those unable to pay, the evidence now further supports that view and, if anything, calls into question the conclusion that the system is rational even as applied to those who are able to pay. A note is in order, too, about the interplay between this analysis and the defendants’ assertion in the prior appeal, addressed alternatively in the Eleventh Circuit’s opinion, that an as-applied challenge to a provision subject to only rational-basis scrutiny looks not to the specific plaintiffs but to the mine-run of cases. If that were correct—as set out above, it is not—the conclusion would be inescapable that the entire pay-to-vote system is unconstitutional, because the record now shows that the mine-run case is a person who is genuinely unable to pay. In Jones, the Eleventh Circuit said the State almost conceded the point—that is, said that if the mine-run case was a person unable to pay, the entire system would fall. See Jones, 950 F.3d at 814.
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The State has offered only three justifications for the pay-to-vote system. The first is the punishment or debt-to-society rationale—that a felon should be required to satisfy the felon’s entire criminal sentence before being allowed to vote. But this does not justify requiring payment by those unable to pay, and the State has itself severely undercut this rationale by adopting the every-dollar method, under which many felons will be allowed to vote before paying all amounts due on their sentences.
The second purported justification is the debt-collection rationale—that the system provides an incentive to pay the amounts at issue. But one cannot get blood from a turnip or money from a person unable to pay. And the State has far better ways to collect amounts it is owed. Moreover, one might well question the legitimacy of the State’s interest in leveraging its control over eligibility to vote to improve the State’s financial position.
The third purported justification is administrative convenience—that the state should be able to pursue the first two goals efficiently. This third justification is entirely derivative of the other two; if the debt-to-society and debt-collection rationales cannot sustain the pay-to-vote system, neither can administrative convenience. This order will improve, not compromise, the administrability of the State’s system.
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The 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. X. Poll Tax or Other Tax
The Twenty-Fourth Amendment to the United States Constitution provides 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.” The State says the amendment does not apply to felons because they have no right to vote at all, but that makes no sense. A law allowing felons to vote in federal elections but only upon payment of a $10 poll tax would obviously violate the Twenty-Fourth Amendment.
Florida has not, of course, explicitly imposed a poll tax. The financial obligations at issue were imposed as part of a criminal sentence. The obligations existed separate and apart from, and for reasons unrelated to, voting. Every court that has considered the issue has concluded that such a preexisting obligation is not a poll tax. See, e.g., Johnson v. Bredesen, 624 F.3d 742, 751 (6th Cir. 2010); Harvey v. Brewer, 605 F.3d 1067, 1080 (9th Cir. 2010); Thompson v. Alabama, 293 F. Supp. 3d 1313, 1332-33 (M.D. Ala. 2017); Coronado v. Napolitano, No. cv-07-1089-PHX-SMM, 2008 WL 191987 at *4-5 (D. Ariz. Jan. 22, 2008).
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This does not, however, end the Twenty-Fourth Amendment analysis. The amendment applies not just to any poll tax but also to any “other tax.” As the State has emphasized in addressing Florida’s Amendment 4, “words matter.”138 The same principle applies to the Twenty-Fourth Amendment. The words “any . . . other tax” are right there in the amendment.
There is no defensible way to read “any other tax” to mean only any tax imposed at the time of voting or only any tax imposed explicitly for the purpose of interfering with the right to vote. “Any other tax” means “any other tax.” A law prohibiting citizens from voting while in arrears on their federal income taxes or state property taxes would plainly violate the Twenty-Fourth Amendment. A state could not require a voter to affirm, on the voter-registration form or when casting a ballot, that the voter was current on all the voter’s taxes. The very idea is repugnant.
The only real issue is whether the financial obligations now at issue are taxes. As the Supreme Court has made clear time and again, whether an exaction is a “tax” for constitutional purposes is determined using a “functional approach,” not simply by consulting the label given the exaction by the legislature that imposed it. See, e.g., Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 564-66 (2012) (collecting cases).
138 See ECF No. 132 at 32.
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The Supreme Court has said the “standard definition of a tax” is an “enforced contribution to provide for the support of the government.” United States v. State Tax Comm’n., 421 U.S. 599, 606 (1975) (quoting United States v. La Franca, 282 U.S. 568, 572 (1931)). More recently, the Court has said the “essential feature of any tax” is that “[i]t produces at least some revenue for the Government.” Nat’l Fed’n, 567 U.S. at 564 (citing United States v. Kahriger, 345 U.S. 22, 28 n.4 (1953)).
The plaintiffs say cases like National Federation and Kahriger deal with the meaning of tax under Article I and thus do not apply to the Twenty-Fourth Amendment. And indeed, one might well conclude that the definition of a tax under the Twenty-Fourth Amendment should be as broad as the evil that led to the amendment’s enactment: the pernicious practice of requiring citizens to pay to vote. But Article I and Kahriger were in the books when the Twenty-Fourth Amendment was adopted. The better approach is to read the Twenty-Fourth Amendment the same way.
Restitution payable to the private victim of a crime—not to a government— is intended to compensate the victim, not raise revenue for the government. Restitution thus lacks the essential feature of a tax. This makes clear that restitution payable to a private victim is not a tax. And while the issue is perhaps closer, the result is the same when restitution is payable to a government as a victim.
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Restitution that is payable to the government is intended not to fund government operations but to reimburse the government for actual losses it has suffered in the past. In short, restitution is intended to compensate the victim, regardless of the victim’s identity, and is not a tax.
For criminal fines, the issue is closer. Fines generate revenue for the government that imposes them, but the primary purpose is to punish the offender, not to raise revenue. Fines vary from individual to individual. They are imposed based on the court’s assessment of culpability, or, in the case of minimum mandatory fines, based on the legislature’s assessment of culpability.
In National Federation, the Court did not provide an exhaustive list of relevant considerations relevant to the functional approach to determining whether an exaction is a tax. But the Court did address the consideratons that were important there. One was the size of the exaction; a “prohibitory” charge is likely a penalty, while a modest charge is more likely a tax. Id. at 565-66. A second consideration is scienter; punishment is more likely to be imposed on those who intentionally break the law. Id. at 565-66. A third consideration is who enforces the exaction—whether a taxing authority or agency with responsibility to punish those who violate the law. Id. at 566.
These same considerations are instructive here. Fines vary in amount from case to case, but they are often substantial or, in the language of National
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Federation, “prohibitory.” Id. at 566. Unlike fees or costs, fines ordinarily are imposed only on those who are adjudged guilty, almost always of an offense that requires scienter. And the amount of a fine is determined by the sentencing authority, that is, by the judge in the criminal case. In sum, under a functional analysis, fines are criminal penalties, not taxes.
The same is not true for the many categories of fees routinely assessed against Florida criminal defendants. Florida has chosen to pay for its criminaljustice system in significant measure through such fees.139
The fees are sometimes denominated “costs,” though they are not court costs of the kind routinely assessed in favor of the party who prevails in litigation. Whether an assessment is labeled a fee or cost makes no relevant difference, as demontstrated by SB7066 itself. The statute first says “all terms of sentence” includes “fines or fees,” leaving out costs. Fla. Stat. § 98.0751(2)(a)5.b. But in the next sentence, the statute says the covered amounts do not include “fines, fees, or costs” that accrue after the date the obligation is ordered as part of the sentence. Id. § 98.0751(2)5.c. Nobody has attributed any significance to the omission of “costs”
139 See Fla. Const., art. V, § 14 (providing that all funding for clerks of court must be obtained through fees and costs, with limited exceptions); see also Trial Tr., ECF No. 396 at 34-35.
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from the first of these provisions. For convenience, this opinion sometimes refers to all such charges as “fees.”
Every criminal defendant who is convicted, and every criminal defendant who enters a no-contest plea of convenience or is otherwise not adjudged guilty but also not exonerated, is ordered to pay such amounts.140 In one county, for example, the fees total at least $668 for every defendant who is represented by a public defender and $548 for every defendant who is not, and more if there are multiple counts.141
There is no controlling authority, and very little authority at all, addressing the question whether assessments like these are “other taxes” within the meaning of the Twenty-Fourth Amendment. The most persuasive discussion of the issue is in a dissenting opinion. See Johnson v. Bredesen, 624 F.3d 742, 770-72 (6th Cir. 2010) (Moore, J., dissenting). The statute at issue there required felons to pay restitution and child support before being reenfranchised. The court held these were not taxes—a holding fully consistent with the analysis set out above. Judge Moore noted, though, that the state took a 5% fee for processing child-support payments, and she asserted this fee was an “other tax” prohibited by the TwentyFourth Amendment. The reasoning applies much more persuasively to the fees at
140 See Trial Tr., ECF No. 396 at 25, 27-28, 77-78, 97. 141 See Trial Tr., ECF No. 396 at 23-24.
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issue here, which are not merely fees for processing payments on assessments that are not themselves taxes; the fees at issue here have been directly levied by, and are paid in full to, state governmental entities.142
In any event, the National Federation factors favor treating the fees assessed in Florida as taxes, not penalties. For most categories of fees, the amount is fixed, and with rare exceptions, the amount is comparatively modest, certainly not “prohibitory.” Most fees and costs are assessed without regard to culpability; a defendant adjudged guilty of a violent offense ordinarily is assessed the same amount as a defendant who is charged with a comparatively minor nonviolent offense, denies guilt, pleads no-contest, and is not adjudged guilty. The amount of a given fee, while nominally imposed by the judge, is ordinarily determined by the Legislature. And the fees are ordinarily collected not through the criminal-justice system but in the same way as civil debts or other taxes owed to the government, including by reference to a collection agency.
In sum, the fees are assessed regardless of whether a defendant is adjudged guilty, bear no relation to culpability, and are assessed for the sole or at least primary purpose of raising revenue to pay for government operations—for things
142 Less persuasively, Judge Moore also asserted restitution payable to the state as a victim was an “other tax.” This order does not accept that view.
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the state must provide, such as a criminal-justice system, or things the state chooses to provide, such as a victim-compensation fund. A tax by any other name.
If a state chose to fund its criminal-justice system by assessing a $10 fee against every resident of the state, nobody would doubt it was a tax. Florida has chosen to fund its criminal-justice system by assessing just such a fee, but to assess it not against all residents but only against those who are alleged to have committed a criminal offense and are not exonerated. As a measure designed to raise revenue to fund the government, this would be a tax even if exacted only from those adjudged guilty. The result is made more clear by the state’s exaction of the fee even from those not adjudged guilty.
If, as the Supreme Court held in National Federation, the government’s assessment of $100 against any person choosing not to comply with the legal obligation to obtain conforming health insurance is a tax, a larger assessment against a person who is charged with but not adjudged guilty of violating some other legal requirement is also not a tax, at least when, as in Florida, the purpose of the assessment is to raise money for the government. And if a fee assessed against a person who is not adjudged guilty is a tax, then the same fee, when assessed against a person who is adjudged guilty, is also a tax.
The Twenty-Fourth Amendment precludes Florida from conditioning voting in federal elections on payment of these fees and costs. And because the Supreme
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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. XI. Race Discrimination
The Gruver plaintiffs assert a claim of race discrimination. This order sets out the governing standards and then turns to the claims and provisions at issue.
A. The Governing Standards To prevail on a claim that a provision is racially discriminatory, a plaintiff must show that race was a motivating factor in the provision’s adoption. See, e.g., Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977); Washington v. Davis, 426 U.S. 229 (1976). A racially disparate impact is relevant to the question whether race was a motivating factor, but in the absence of racial motivation, disparate impact is not enough. If race was a motivating factor, the defendant may still prevail by showing that the provision would have been adopted anyway, even without the improper consideration of race. See, e.g., Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); see also Hunter v. Underwood, 471 U.S. 222, 228 (1985). B. Amendment 4 The plaintiffs make no claim that race was a motivating factor in the voters’ approval of Amendment 4. The amendment was intended to restore the right to
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vote to a large number of felons. It was an effort to expand, not contract, the electorate. Most voters probably were aware that the proportion of African Americans with felony convictions exceeds the proportion of whites with felony convictions—this is common knowledge. But if anything, the voters’ effort was to restore the vote to African American felons, as well as all other felons, not to withhold it.
C. The Florida Supreme Court Ruling The plaintiffs also do not assert the Florida Supreme Court was motivated by race when it issued its advisory opinion holding that “all terms of sentence,” within the meaning of Amendment 4, include financial obligations. D. SB7066 The plaintiffs do assert that SB7066 was motivated by race. The State makes light of the argument, asserting that SB7066 merely implements Amendment 4, and that SB7066, like Amendment 4, expands, not contracts, the electorate. But that is not so. SB7066 includes many provisions that go beyond Amendment 4 itself, including some that limit Amendment 4’s reach in substantial respects. Amendment 4 had already expanded the electorate; SB7066 limited the expansion. The State also offers lay opinion testimony that key legislators were not motivated by racial animus—testimony that would not be admissible over
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objection, proves nothing, and misses the point.143 It is true, and much to the State’s credit, that the record includes no evidence of racial animus in any legislator’s heart—no evidence of racially tinged statements, not even dog whistles, and indeed no evidence at all that any legislator harbored racial animus.
Under Arlington Heights, though, the issue is not just whether there was racial animus in any legislator’s heart, nor whether there were other reasons, in addition to race, for a legislature’s action. To establish a prima facie case, a plaintiff need only show that race was a motivating factor in adoption of a challenged provision. See Hunter, 471 U.S. at 227-28; see also United States v. Dallas Cty. Comm’n, 739 F.2d 1529, 1541 (11th Cir. 1984).
The issue is far more serious than the State recognizes. Indeed, the issue is close and could reasonably be decided either way.
Four aspects of SB7066 are adverse to the interests of felons seeking reenfrachisement and are worthy of discussion here.
SB7066’s most important provision, at least when it was adopted, defined “all terms of sentence,” as used in Amendment 4, to include financial obligations. The Florida Supreme Court later ruled that this is indeed what this phrase means, rendering this part of SB7066 inconsequential. This does not, however, establish that the Legislature’s treatment of this issue was not motivated by race.
143 Meade Dep. Designations, ECF No. 342-1 at 121.
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When SB7066 was enacted, it was possible, though not likely, that the court would reach a different result. More importantly, it was possible the court would not rule on this issue before the 2020 election, and that felons with unpaid financial obligations would be allowed to register and vote. Indeed, this was already occurring. Some Supervisors of Elections believed Amendment 4 did not apply to financial obligations.144 So SB7066’s provision requiring payment of financial obligations was important.
SB7066’s second most important provision was probably its treatment of judicial liens. Florida law allows a judge to convert a financial obligation included in a criminal judgment to a civil lien. Judges often do this, usually because the defendant is unable to pay. The whole point of conversion is to take the obligation out of the criminal-justice system—to allow the criminal case to end when the defendant has completed any term in custody or on supervision.
When a defendant’s criminal case is over, and the defendant no longer has any financial obligation that is part of or can be enforced in the criminal case, one would most naturally conclude the sentence is complete. The Senate sponsor of
144 See Trial Tr., ECF No. 393 at 10-11; Barton Dep. Designations, ECF No. 389-2 at 49-50; Earley Dep. Designations, ECF No. 389-3 at 72-73.
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SB7086 advocated this view.145 But the House sponsor’s contrary view prevailed, and, under SB7066, conversion to a civil lien does not allow the person to vote.146
This result is all the more curious in light of the State’s position in this litigation that when a civil lien expires, the person is no longer disqualified from voting.147 So the situation is this. The State says the pay-to-vote system’s legitimate purpose is to require compliance with a criminal sentence. When the obligation is removed from the criminal-justice system, the person is still not allowed to vote. But when the obligation is later removed from the civil-justice system—when the civil lien expires—the person can vote. Curious if not downright irrational.
In any event, it cannot be said that on the subject of civil liens, SB7066 simply followed Amendment 4.
The third SB7066 provision that bears analysis is the registration form it mandates. The form is indefensible, provides no opportunity for some eligible
145 See, e.g., Pls.’ Ex 400, ECF No. 351-28; see also Pls.’ Ex. 893, ECF No. 286-13 at 47-48. 146 See Pls.’ Ex. 893, ECF No. 286-13 at 47-48; see also Fla. Stat. § 98.0751. 147 See Trial Tr., ECF No. 408 at 84-85, 144; Trial Tr., ECF No. 413 at 16-17.
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felons to register at all, and is sure to discourage others.148 It is so obviously deficient that its adoption can only be described as strange, as was the Legislature’s failure to correct it after the State was unable to defend it in any meaningful way in this litigation and actively sought a legislative cure.
The fourth aspect of SB7066 that warrants attention is its failure to provide resources to administer the system the statute put in place. The Legislature was provided information on needed resources and surely knew that without them, the system would break down. SB7066 provided no resources.
SB7066 included many other provisions, some favorable to felons seeking reenfranchisement.149 The issue on the plaintiffs’ race claim is not whether by enacting SB7066, the Legislature adopted the only or even the best reading of Amendment 4 or implemented the amendment in the best possible manner. The issue is whether the Legislaure was motivated, at least in part, by race.
SB7066 passed on a straight party-line vote. Without exception, Republicans voted in favor, and Democrats voted against.150 The defendants’ expert testified
148 Prelim. Inj. H’rg Tr., ECF No. 204 at 201-04; Prelim. Inj. H’rg Tr., ECF No. 205 at 49-50. 149 See, e.g., Fla. Stat. §§ 98.0751(2)(a)(5)(d), (e) (allowing a court to modify some financial obligations). 150 See Pls.’ Ex. 893, ECF No. 286-13 at 87.
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that felon reenfrachisment does not in fact favor Democrats over Republicans.151 He based this on studies that might or might not accurately reflect the situation in today’s Florida and might or might not apply to felons with unpaid LFOs as distinguished from all felons. What is important here, though, is not whether the LFO requirement actually favors Democrats or Republicans, but what motivated these legislators to do what they did.
When asked why, if reenfranchisement has no partisan effect, every Republican voted in favor of SB7066 and every Democrat voted against, the State’s expert suggested only a single explanation: legislators misperceived the partisan impact.152 As he further acknowledged, it is well known that African Americans disproportionately favor Democrats.153 He suggested no other reason for the legislators’ posited misperception and no other reason for the straight partyline vote.
This testimony, if credited, would provide substantial support for the claim that SB7066 was motivated by race. If the motive was to favor Republicans over Democrats, and the only reason the legislators thought these provisions would accomplish that result was that a disproportionate share of affected felons were
151 Trial Tr., ECF No. 402 at 113-14. 152 See id. at 117-18. 153 Id.
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African American, prohibited racial motivation has been shown. See, e.g., Hunter v. Underwood, 471 U.S. 222, 233 (1985); N. Carolina State Conference of NAACP v. McCrory, 831 F.3d 204, 226-27 (4th Cir. 2016). The State has not asserted the Legislature could properly consider party affiliation or use race as a proxy for it and has not attempted to justify its action under Hunt v. Cromartie, 526 U.S. 541, 551 (1999) (noting that a state could engage in political gerrymandering, “even if it so happens that the most loyal Democrats happen to be black Democrats and even if the State were conscious of that fact”).
Parenthetically, it bears noting that the expert’s explanation is troublesome, even apart from its racial implications. See, e.g., Anderson v. Celebrezze, 460 U.S. 780, 793 (1983) (“As our cases have held, it is especially difficult for the State to justify a restriction that limits political participation by an identifiable political group whose members share a particular viewpoint, associational preference, or economic status.”).
Before turning to the contrary evidence, a note is in order about two items that do not show racial motivation.
First, the House sponsor of SB7066 emphatically said during legislative debate that the bill was simply a faithful implementation of Amendment 4—in effect, “nothing to see here.” This is not true. SB7066 included much that was not in Amendment 4, even as later construed by the Florida Supreme Court. The
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plaintiffs say this “faithful steward” argument was a pretext to hide racial motivation. And the plaintiffs are correct that pretextual arguments often mask prohibited discrimination. But there are other, more likely explanations for the sponsor’s argument. It was most likely intended simply to garner support for SB7066 and perhaps to avoid a meaningful discussion of the policy choices baked into the statute. The argument says nothing one way or the other about the policy choices or motivation for the legislation.
Second, the House sponsor also said during debate that he had not sought information on racial impact and had not considered the issue at all. The plaintiffs say this shows willful blindness to the legislation’s obvious racial impact and was again a pretext for racial discrimination. Properly viewed, however, the sponsor’s statement does not show racial motivation. It probably shows only an awareness that a claim of racial discrimination was possible, perhaps likely, and a reasonable belief that, if the sponsor requested information on racial impact, the request would be cited as evidence of racial bias. See, e.g., McCrory, 831 F.3d at 230 (citing the request for and use of data on race in support of a finding of intentional race discrimination in voting laws). And while any suggestion that the sponsor did not know SB7066 would have a racially disparate impact could reasonably be labeled pretextual, that is not quite what the sponsor said. On any fair reading, the sponsor’s assertion was simply that race should not be a factor in the analysis—an
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entirely proper assertion. The statement says nothing one way or the other about whether perceived partisan impact was a motivating factor for the legislation, about whether the perceived partisan impact was based on race, or about whether race was thus a motivating factor in the passage of SB7066.
In sum, the plaintiffs’ race claim draws substantial support from the inference—in line with the testimony of the State’s own expert—that a motive was to support Republicans over Democrats, coupled with the legislators’ knowledge that SB7066 would have a disparate impact on African Americans, who vote for Democrats more often than for Republicans. The plaintiffs’ other evidence adds little.
There are also other explanations for these SB7066 provisions, as well as evidence inconsistent with the inference of racial motivation.
First, a substantial motivation for the SB7066 definition of “all terms of sentence” was the belief that this is what Amendment 4 provides. This was not a pretext to hide racial motivation. Indeed, as it turns out, the view was correct. The Florida Supreme Court has told us so.
Second, while it is less clear that SB7066’s treatment of judicial liens was based on an honest belief that this is what Amendment 4 requires, it is also less clear that this was an effort to favor Republicans over Democrats or that the only reason for believing this provision would have that effect was race.
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Third, while the SB7066 registration form is indefensible, there is no reason to believe this was related to race. A more likely explanation is inattention or shoddy craftsmanship or perhaps lack of concern for felons of all races.
Fourth, there is no reason to believe the failure to provide resources was based on race. A more likely explanation is budgetary.
More importantly, there are other provisions in SB7066 that promote, rather than restrict, reenfranchisement. SB7066 provides that to be reenfranchised, a felon need not pay financial obligations that are not included in the four corners of the sentencing document or that accrue later.154 SB7066 allows courts to modify sentences to eliminate LFOs if specific conditions are met.155 And of less significance—it provides a remedy that, if not entirely illusory, will rarely matter—SB7066 authorizes courts to allow defendants to satisfy LFOs through community service.156 These provisions would not have made it into SB7066 if the only motivation had been to suppress votes or to favor Republicans over Democrats.
On balance, I find that SB7066 was not motivated by race. A note is in order, too, about the limited effect of this finding.
154 Fla. Stat. § 98.0751(2)(a), (2)(a)(5)(c). 155 Id. § 98.0751(2)(a)(d), (e). 156 Id.
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A contrary finding for the SB7066 definition of “all terms of sentence” would make no difference, for two reasons. First, for this provision, the State would prevail on its same-decision defense; the Florida Supreme Court’s decision now makes clear the State would read “all terms of sentence” to include financial obligations, with or without SB7066. Second, striking this part of SB7066 as racially discriminatory would make no difference—the Florida Supreme Court’s decision would still be controlling.
A contrary finding for SB7066’s treatment of judicial liens would make a difference—judicial liens would be excepted from the LFO requirement. But the difference might not be much. LFOs are usually converted to civil liens when an individual is unable to pay. This order will end discrimination against those unable to pay—and thus will render the SB7066 treatment of judicial liens much less important.
A contrary finding for the SB7066 registration form would make no difference. As set out below, the form violates the National Voter Registration Act and will be enjoined for that reason.
And finally, even with a contrary finding for SB7066’s failure to provide resources to administer the pay-to-vote system, the remedy would not be an order to provide more resources. This order’s remedy on other claims will mitigate, but by no means cure, the pay-to-vote system’s administrative train wreck. The remedy
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that would be imposed based on a finding of racial discrimination would do nothing more.
The bottom line: the plaintiffs have not shown that race was a motivating factor in the enactment of SB7066. XII. Gender Discrimination
The McCoy plaintiffs assert the pay-to-vote requirement discriminates against women in violation of the Fourteenth Amendment’s Equal Protection Clause and violates the Nineteenth Amendment, which provides that a citizen’s right to vote “shall not be denied or abridged . . . on account of sex.”
To prevail under the Fourteenth Amendment, the plaintiffs must show intentional gender discrimination—that is, the plaintiffs must show that gender was a motivating factor in the adoption of the pay-to-vote system. This is the same standard that applies to race discrimination, as addressed above.
The plaintiffs assert the Nineteenth Amendment should be read more liberally, but the better view is that the standards are the same. The Nineteenth Amendment was an effort to put women on the same level as men with respect to voting, just as the Fifteenth Amendment was an effort to put African American men on the same level as white men. Indeed, the Nineteenth Amendment copied critical language from the Fifteenth, which provides that a citizen’s right to vote “shall not be denied or abridged . . . on account of race, color, or previous
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condition of servitude.” As is settled, a claim under the Fifteenth Amendment requires the same showing of intentional discrimination as the Fourteenth Amendment’s Equal Protection Clause. See, e.g., Burton v. City of Belle Glade, 178 F.3d 1175, 1187 n.8 (11th Cir. 1999) (stating “vote dilution, vote denial, and traditional race discrimination claims arising under the Fourteenth and Fifteenth Amendments all require proof of intentional discrimination”). In sum, there is no reason to read the Nineteenth Amendment differently from the Fifteenth.
On the facts, the plaintiffs’ theory is that women with felony convictions, especially those who have served prison sentences, are less likely than men to obtain employment and, when employed at all, are likely to be paid substantially less than men.157 The problem is even worse for African American women. This pattern is not limited to felons; it is true in the economy at large.
As a result, a woman with LFOs is less likely than a man with the same LFOs to be able to pay them. This means the pay-to-vote requirement is more likely to render a given woman ineligible to vote than an identically situated man.
This does not, however, establish intentional discrimination. Instead, this is in effect, an assertion that the pay-to-vote requirement has a disparate impact on women. For gender discrimination, as for race discrimination, see supra Section IX, disparate impact is relevant to, but without more does not establish, intentional
157 See Pls.’ Ex. 895, ECF No. 318-2; Pls’ Ex. 896, ECF No. 318-1.
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discrimination. Here there is nothing more—no direct or circumstantial evidence of gender bias, and no reason to believe gender had anything to do with the adoption of Amendment 4, the enactment of SB7066, or the State’s implementation of this system.
Moreover, the pay-to-vote requirement renders many more men than women ineligible to vote. This is so because men are disproportionately represented among felons. As a result, even though the impact on a given woman with LFOs is likely to be greater than the impact on a given man with the same LFOs, the pay-to-vote requirement overall has a disparate impact on men, not women. Even if disparate impact was sufficient to establish a constitutional violation, the plaintiffs would not prevail on their gender claim. XIII. Excessive Fines
The Eighth Amendment prohibits imposition of “excessive fines.” The provision applies to the states. See Timbs v. Indiana, 139 S. Ct. 682 (2019). The McCoy plaintiffs assert LFOs, when used as a basis to deny eligibility to vote, violate this provision.
At first blush, the assertion seems farfetched. Any fine at issue was imposed at the time of sentencing, usually long ago. The fine was within the statutory limit unless something went badly wrong, and there is no evidence of that. If there was a basis to assert the fine was an excessive punishment for the offense of
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conviction—there probably was not—the assertion presumably would have been made at the time of sentencing or on direct appeal or at the latest in a collateral proceeding. It is almost surely too late to bring a federal challenge, and a challenge would properly be made in a separate proceeding addressing the criminal judgment, not as part of a voting case.
On closer examination, there is more to the claim. A fine that was unobjectionable when entered, as the plaintiffs’ fines presumably were, would not have been deemed constitutionally excessive standing alone. What makes the fine excessive, in the plaintiffs’ view, is the effect it did not have when entered but acquired only when the State adopted the pay-to-vote system. It is one thing to impose a fine that requires payment of money. It is quite another to impose a fine that, in effect, disqualifies the offender from voting.
On balance, this order holds that a state does not violate the Excessive Fines Clause by refusing to reenfranchise a felon who chooses not to pay a fine that the felon has the financial ability to pay. This order need not and does not address the question whether the Excessive Fines Clause prohibits a state from refusing to reenfranchise a felon based on a fine the felon is unable to pay. As set out above, doing that is unconstitutional anyway, on other grounds.
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XIV. Due Process The Raysor, Gruver, and McCoy plaintiffs assert that even if the State can
properly condition restoration of the right to vote on payment of LFOs, the manner in which the State has done so violates the Due Process Clause. The argument has two parts: the plaintiffs assert the governing standards are impermissibly vague and that the State has provided no constitutionally adequate procedure for determining whether an individual meets the standards.
The arguments carry considerable force. As set out above, determining the amount that must be paid to make a person eligible to vote is sometimes easy, sometimes hard, sometimes impossible.158 In 18 months since Amendment 4 was adopted, the State has done almost nothing to address the problem—nothing, that is, except to jettison the most logical method for determining whether the required amount has been paid and substituting a bizarre method that no prospective voter would anticipate and that doesn’t solve the problem. 159 The flaws in Florida’s approach are especially egregious because a person who claims a right to vote and turns out to be wrong may face criminal prosecution. 160
158 See supra Section IX.C(4). 159 Id. 160 Id.
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The Due Process Clause “requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 351, 357 (1983); see also Johnson v. United States, 135 S. Ct. 2551 (2015). Florida law makes it a crime to submit a false affirmation in connection with voting, Fla. Stat. § 104.011, or to fraudulently vote, see id. § 104.041. These provisions are clear enough on their face. But in the absence of eligibility standards “that ordinary people can understand”—standards that can be applied to known or knowable facts—the clarity of the statutory words is meaningless. See Giacco v. Pennsylvania., 382 U.S. 399, 402-03 (1966) (“It is established that a law fails to meet the requirements of the Due Process Clause if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits or leaves judges and jurors free to decide, without any legally fixed standards, what is prohibited and what is not in each particular case.”).
The State says its system comports with procedural due process because a person who registers to vote has a right to a hearing before being removed from the roll. The Supervisor of Elections in the county at issue conducts the hearing and renders a decision. A person who is dissatisfied with the result is entitled to de novo judicial review.
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If the process was available to all who wish to register, and if the Supervisors had the resources to conduct the required hearings for all comers, the process would easily satisfy due process. See, e.g., Mathews v. Eldridge, 424 U.S. 319, 335 (1976) (setting out a framework for determining what process is due in a given circumstance); J.R. v. Hansen, 736 F.3d 959, 966 (11th Cir. 2015) (same). But this process is available only to a person who is able to register in the first place. A person cannot invoke this process at all if the person is unable or unwilling to register because the person is uncertain of eligibility and unwilling to risk prosecution.
The State says such a person can request an advisory opinion from the Division of Elections and that this will satisfy due process.161 Indeed, the State says that a person who requests an advisory opinion on eligibility to vote and acts in accordance with the opinion is immune from prosecution under the criminal statutes at issue.162 It is not at all clear that the Florida statutes on which the State relies for these assertions actually so provide, but this order accepts the State’s construction of its statutes.
If implemented in a timely manner with adequate, intelligible notice, the advisory-opinion procedure and attendant immunity will satisfy due process and
161 See Fla. Stat. § 106.23(2); Trial Tr., ECF No. 408 at 91-94, 100-03, 197-98. 162 Trial Tr., ECF No. 408 at 91-94, 100-03.
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remedy the vagueness attending application of the criminal statutes. This order requires adequate, intelligible notice and timely responses to requests for advisory opinions. Even in the absence of a ruling for the plaintiffs on the vagueness and procedural-due-process claims, the same requirements would be included in the remedy for the constitutional violation addressed in section IX above. XV. The Organizations’ Claims
An organization that engages in voter-registration activities may assert its own constitutional rights relating to that process. See, e.g., Arcia v. Fla. Sec’y of State, 772 F.3d 1335, 1341-42 (11th Cir. 2014); Fla. State Conference of NAACP v. Browning, 522 F.3d 1153, 1164-66 (11th Cir. 2008). The League of Women Voters conducts voter-registration efforts but has curtailed them because of the pay-to-vote system, its breadth (including its application to those unable to pay), the lack of clear standards for determining eligibility to vote, and the additional confusion created by the State’s flailing implementation of the pay-to-vote system. The League has curtailed its activities in part because it does not wish to subject voters to a risk of prosecution and does not wish to risk the League’s reputation by signing up individuals who may ultimately be deemed ineligible.163
163 See Trial Tr., ECF No. 396 at 173-80.
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One example of the injury the League has suffered is this: the League created an entire continuing education program on the pay-to-vote sysem, but the program became outdated when the State changed from the actual-balance method to the every-payment method for determining whether a felon’s LFOs have been paid.164 The State’s uncertain, shifting implementation of the program has interfered with the League’s associational rights and has caused the League to divert substantial resources from other endeavors. The League has registered fewer voters than it would have in the absence of the State’s constitutional violations.
The Florida State Conference of the NAACP and the NAACP Orange County Branch have standing to assert the rights of their members, some of whom have been directly impacted by the State’s constitutional violations. For example, Mr. Bryant, a member of the Orange County Branch, was constitutionally entitled to vote but did not do so in the March 2020 primary, not wishing to risk prosecution.165 In addition, the State Conference, if not the Orange County Branch, has diverted resources and suffered injuries similar to the League’s.166 The organization has reached out to and registered fewer voters than it otherwise would have.
164 See id. at 175-76, 191-92. 165 Trial Tr., ECF No. 397 at 73. 166 See, e.g., Trial Tr., ECF No. 397 at 19, 32-37.
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These rulings ultimately make no difference in the remedy that this order would put in place anyway, based only on the claims of the individual plaintiffs and the certified class and subclass. That remedy is sufficient to redress the organizations’ claims. XVI. The National Voter Registration Act
The Gruver and Raysor plaintiffs assert the State has violated the National Voter Registration Act in two respects: by using an improper voter registration form and by allowing different counties to apply different standards in determining eligibility to vote.
The State asserts all the individual plaintiffs but one, Mr. Bryant, lack standing to challenge the registration form because they registered to vote using a different form, not the one they now challenge. And the State asserts the Raysor plaintiffs did not wait the statutorily required period after giving the notice that must precede an NVRA claim. The State also contests the claim on the merits.
The State’s procedural objections do not bar the claim. Mr. Bryant used the challenged registration form.167 In addition, the organizational plaintiffs have members who have used or will use the form if it is not enjoined. Indeed, Mr. Bryant is himself a member of the NAACP Orange
167 Trial Tr., ECF No. 397 at 69-71.
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County Branch. Mr. Bryant and the organizational plaintiffs have standing to challenge the form. The other individual plaintiffs lack standing to challenge the form, but this is inconsequential. And in any event, all the plaintiffs have standing to challenge the inconsistent application of the pay-to-vote system from one county to another.
The NVRA creates a private right of action but requires advance notice and an opportunity to cure during a specified period. See 52 U.S.C. § 20510(b)(1). The original Gruver plaintiffs, including the organizational plaintiffs, gave notice to the proper official, the Florida Secretary of State. See Fla. Stat. § 97.012(9) (naming the Secretary the chief election officer). 168 The State did not cure the alleged violations within the specified period, so litigation could go forward. The State has not contested the claims of Mr. Bryant and the organizations based on the noticeand-cure provision.
The Raysor plaintiffs also gave notice but did so later, and they filed their NVRA claim before expiration of the cure period, as measured from the date of their notice. This makes no difference. The State had already been provided the required opportunity to cure and had chosen not to do so. Properly construed, the statute does not require multiple notices of the same alleged violation and multiple opportunites to cure. The Gruver plaintiffs’ notice thus was sufficient to allow the
168 See Pls.’ Ex. 841, ECF No. 360-2.
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Raysor plaintiffs’ claims to go forward. See, e.g., Calloway v. Partners Nat’l Health Plans, 986 F.2d 446, 449-50 (11th Cir. 1993) (allowing one employee to rely on another employee’s timely notice of a Title VII claim based on the “singlefiling rule”); Ass’n of Community Orgs. For Reform Now v. Miller, 129 F.3d 833, 838 (6th Cir. 1997) (allowing one party to rely on another party’s NVRA notice). Contra Scott v. Schedler, 771 F.3d 831 (5th Cir. 2014).
On the merits, the plaintiffs are correct that the registration form mandated by SB7066 violates the NVRA. So do the later forms the State has floated as possible replacements. The chronology helps explain this.
The old form—the form in effect before SB7066—had a single relevant statement: “I affirm that I am not a convicted felon, or if I am, my rights relating to voting have been restored.” See Fla. Stat. § 97.052(2)(t) (2018). This provided all the information that needed to be on the form.
SB7066 made a hash of this. Gone was the old, easily understood statement. In its place were three checkboxes; the registrant had to choose one. See Fla. Stat. § 97.052(2)(t) (2019). The first box was for nonfelons: “I affirm I have never been convicted of a felony.” The second and third boxes were for felons. The second: “If I have been convicted of a felony, I affirm my voting rights have been restored by the Board of Executive Clemency.” The third: “If I have been convicted of a felony, I affirm my voting rights have been restored pursuant to s. 4, Art. VI of the
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State Constitution upon the completion of all terms of my sentence, including parole or probation.”
The new form is objectionable at several levels. There is no reason to require a registrant who is eligible to vote to disclose a nondisqualifying felony to the local Supervisor of Elections. In any event, few if any registrants are likely to know that Amendment 4 is now “s. 4, Art. VI” of the State Constitution.169 Worse, an individual with an out-of-state felony conviction who would be eligible to vote in the state of conviction is eligible to vote in Florida.170 But such an individual has no box to check on the registration form.171
Perhaps more importantly, there is no reason—other than perhaps to discourage felons from registering—for the multiple boxes. As the Director of the Division of Elections has acknowledged, the State makes no use of the additional information; a registration on the new form is processed precisely the same way as
169 Prelim. Inj. Hr’g Tr., ECF No. 204 at 202-03. 170 Trial Tr., ECF No. 408 at 81-82; see also Schlenther v. Dep’t of State, Div. of Licensing, 743 So. 2d 536, 537 (Fla. 2d DCA 1998) (“Once another state restores the civil rights of one of its citizens whose rights had been lost because of a conviction in that state, they are restored and the State of Florida has no authority to suspend or restore them at that point.”). 171 Prelim. Inj., Hr’g Tr., ECF No. 205 at 50.
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a registration on the old form.172 The new form thus runs afoul of the NVRA’s mandate that a voter registration form require only such identifying and other information “as is necessary to enable the appropriate State election official to assess the eligibility of the applicant and to administer voter registration and other parts of the election process.” 52 U.S.C. § 20508(b)(1); see also id. §§ 20504(c)(2)(B) & 20505(a)(2).
Amendments to the statute prescribing the registration form were proposed but not adopted during the Legislature’s 2020 session.173 On the first day of trial, in an attempt to deal with this issue, the State proposed a rule with a new form that adds a checkbox for out-of-state felons.174 But the form still would require information that would have no effect on the processing of registrations; the form thus would still violate the NVRA.
During the trial, the State floated yet another possible form, this one with yet another new checkbox: “If I have been convicted of a felony, I affirm that I have completed all terms of my sentence except any financial obligations I am
172 See Trial Tr., ECF No. 408 at 134; see also Brown Dep. Designations, ECF No. at 389-5 at 115; Trial Tr., ECF No. 393 at 25. 173 See Trial Tr., ECF No. 413 at 75-76. 174 See Defs.’ Ex. 169, ECF No. 343-3; see also Pls.’ Ex. 919, ECF No. 384-1.
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genuinely unable to pay.”175 This is commendable to some extent; it is at least an effort—the first—to deal with the preliminary injunction and affirmance in Jones, which occurred months earlier. But the new box is deficient on its face; it could be honestly checked by an individual with a conviction for murder or a sexual offense who is ineligible to vote.176
The State has tendered no legitimate reason to dispense with the old registration form and no new registration form that complies with the NVRA.
In addition to their complaint about the registration form, the plaintiffs say the State’s failure to provide guidance to the county Supervisors of Elections will cause different eligibility standards to be applied in different counties. The plaintiffs say this will violate the NVRA requirement for voter rolls that are “uniform” and “nondiscriminatory.” 52 U.S.C. § 20507(b)(1).
This is a substantial complaint, but it need not be addressed at this time. The remedy that this order puts in place anyway, based on the other violations, substantially reduces the risk that different eligibility standards will be applied in different counties, rendering this risk speculative.
175 Defs.’ Ex. 170, ECF No. 343-4; see also Trial Tr., ECF No. 408 at 137-40. 176 Trial Tr., ECF No. 408 at 139-41.
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In sum, the organizational plaintiffs and Mr. Bryant are entitled to prevail on their NVRA claim based on the noncompliant registration form. XVII. Bush v. Gore
The plaintiffs say the different eligibility standards in different counties will violate not only the NVRA but also the equal-protection principle established by Bush v. Gore, 531 U.S. 98 (2000). Here, as under the NVRA, this is a substantial claim. But here, for the same reasons as for the NVRA, the claim need not be addressed at this time. XVIII. Severability
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.
The State says this is a severability issue, and perhaps it is. But LFOs are not mentioned in Amendment 4 at all. At least on one view, there is nothing to sever. Even on that view, however, the same issues are part of the remedy analysis. Either way, the critical issue is the proper remedy for the unconstitutional application of Amendment 4 to a subset of affected individuals. The remedy must be properly matched to the violation.
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The State relies on Ray v. Mortham, 742 So. 2d 1276 (Fla. 1999). There the Florida Supreme Court addressed a voter-initiated amendment to the Florida Constitution imposing term limits. The amendment had specific language listing the offices to which it applied. Some were state offices, some federal. The attempt to impose limits on eligibility for federal offices violated the United States Constitution, so the question was whether the explicit but unconstitutional language in the amendment addressing federal offices should be severed from the explicit and constitutional language addressing state offices. This was a classic severability issue—whether, after striking invalid language, the amendment’s other language remained valid. The court held the provisions severable—thus upholding the will of the voters who adopted the amendment, to the extent consistent with the United States Constitution.
On the other hand, in the federal cases holding state actions unconstitutional as applied to those unable to pay, severability was not discussed at all. See, e.g., M.L.B. v. S.L.J., 519 U.S. 102 (1996); Bearden v. Georgia, 461 U.S. 600 (1983). In those cases, just as here, a state provided a benefit it was not constitutionally obligated to provide at all, but providing the benefit to those who could pay while denying the benefit to those unable to pay was unconstitutional. The proper remedy was to make the benefit available to those unable to pay. This was so because, under the circumstances, ending the discrimination by making the benefit available
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to those unable to pay was the proper exercise of equitable discretion. This was not framed as a severability issue, but the result would have been the same if it had been.
In any event, the question of whether this is properly framed as a severability issue or only as a remedy issue makes no difference; the substantive analysis is the same either way. The critical issue is whether, if the unconstitutional applications of the amendment are enjoined, it is still reasonable to apply the remainder of the amendment, and whether, if the voters had known the amendment would be applied only in this manner, they still would have approved it.
The answer is yes. I find as a fact that voters would have approved Amendment 4 by more than the required 60% had they known it would be applied in the manner required by this order. I would make this same finding regardless of which side has the burden of proof.
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
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united colonies, let alone a United States. Before Amendment 4, no state disenfranchised as large a portion of the electorate as Florida.
That did not mean, however, that voters were in a mood to immediately reenfranchise everyone. The proponents of the amendment learned from focus groups and polling that some voters were not as favorably disposed toward the worst offenders or toward those who were still in jail or on supervision. There was even a fleeting reference to restitution. The amendment was drafted to exclude those convicted of murder or sexual offenses and to require completion of all terms of sentence including probation and parole. In that form the amendment went before the voters and garnered 64.55% of the vote.
The State says the focus groups and polling show that payment of LFOs, including by those unable to pay, was critical to passage of the amendment. They even presented expert testimony to support the assertion.177 I do not credit the testimony. Indeed, one in search of a textbook dismantling of unfounded expert testimony would look long and hard to find a better example than the crossexamination of this expert.178 The State’s assertion that voters understood “completion of all terms of sentence” to mean payment of fines, fees, costs, and
177 See Trial Tr., ECF No. 402 at 103-111, 123-29; see also Defs.’ Ex. 66, ECF No. 346-1. The expert was Dr. Michael Barber. 178 See id. at 129-98. I credit the testimony of the plaintiffs’ expert who responded to Dr. Barber. The plaintiffs’ expert was Dr. Todd Donovan.
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restitution by those unable to pay and that this was critical to passage of the amendment is fanciful.
The focus groups and polling were conducted years before Amendment 4 was on the ballot. None were conducted, at least as shown by this record, in a scientifically reliable manner. None are reliable indicators of the change in the margin that would have been caused by a change in Amendment 4’s wording or coverage.
More importantly, none of the focus groups and polling dealt separately with financial obligations. There were only fleeting references to these, and only in tandem with completion of all terms in prison or on supervision. The focus groups and polling did not address inability to pay at all. They provided no information on how a requirement to pay fines, fees, or costs, or even restitution, would have affected the vote, let alone how a requirement for payment by those unable to pay would have affected the vote.
The materials available to voters in advance of the election, whether in sample ballots or public-service materials of from proponents or in the media, included very few references to financial obligations, and fewer still to anything other than restitution.179 Amendment 4 itself, as well as the summary on the ballot,
179 See Pls.’ Ex. 886, ECF No. 360-43 at 11-27; Trial Tr., ECF No. 413 at 112-43; Pls.’ Ex. 893, ECF No. 286-13 at 27-44.
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included no explicit reference to financial obligations, let alone to ability or inability to pay.180 Amendment 4 was part of a long ballot with many proposed amendments; it is unlikely that many voters considered financial obligations at all, let alone inability to pay.
There is also another fundamental flaw in the State’s analysis. For the requirement to pay the LFOs at issue to be critical to a voter’s decision, the voter would need at least some understanding of LFOs—of who owes them and why and why they have not been paid. But very few voters had this information.
Surely very few Florida voters knew that every Florida felony conviction results in an order to pay hundreds of dollars in fees and costs intended to fund the government, even when the judge does not choose to impose a fine as part of the punishment and there is no victim to whom restitution is owed. Surely very few Florida voters knew that fees and costs were imposed regardless of ability to pay, that the overwhelming majority of felons who would otherwise be eligible to vote under Amendment 4 owed amounts they were unable to pay, and that the State had no ability to determine who owed how much. Had voters known all this, they might, as the State posits, have decided to scrap the whole thing. But the chance of that is remote. It is far more likely, and I find, that voters would have adhered to
180 See Defs.’ Ex. 15, ECF No. 148-15 at 9.
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the more generous spirit that led to the passage of the amendment, even if it meant that those who had done all they could do but were unable to pay some remaining amount became eligible to vote.
Striking the entirety of Amendment 4 would be a dramatic departure from what the voters intended and from what they would have done had they known of the federal constitutional limits on the amendment’s application. XIX. Remedy
The remedy for a constitutional violation is committed to the court’s sound discretion. The remedy should be clear, as easily administered as feasible, and no more intrusive than necessary on a defendant’s lawful prerogatives. See Lemon v. Kurtzman, 411 U.S. 192, 200 (1973) (“Moreover, in constitutional adjudication as elsewhere, equitable remedies are a special blend of what is necessary, what is fair, and what is workable.”) (footnote omitted).
This order grants declaratory and injunctive relief commensurate with the violations addressed above.
The injunction takes the State up on its suggestion that individuals who are unsure of their eligibility status can simply request an advisory opinion from the Division of Elections. The injunction prescribes a form that may be used for requesting an advisory opinion and requires the Secretary of State and Supervisors of Elections to make the form available both in hard copy and online.
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The injunction provides, in effect, that an advisory opinion cannot rely on unconstitutional grounds for asserting ineligibility. The injunction sets no deadline for the Division to provide an advisory opinion—there is no deadline under state law—but the injunction allows an individual to go forward with registration and voting after 21 days, unless and until the Division provides an advisory opinion showing ineligibility.
The injunction takes the State up on its suggestion that a person who acts in accordance with an advisory opinion may not be prosecuted for doing so. The injunction goes further and allows a person to rely on the Division’s failure to provide an advisory opinion within 21 days. The injunction of course does not reach nonparties and thus does not bind the various state attorneys, but the injunction prohibits these defendants from contributing to such a prosecution.
The injunction prescribes a method for determining inability to pay. In effect, the injunction provides a rebuttable presumption based on facts that are objectively determinable without undue difficulty and that, in the overwhelming majority of cases, correlate with genuine inability to pay. The injunction does not limit the reliable information on which the State may base an assertion that an individual is able to pay—but when the presumption applies, the injunction does require reliable information to rebut it. This goes further than the preliminary
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injunction, which left to the State wide discretion to devise a system for addressing inability to pay. With ample time to address the issue, that State did nothing.
A class member may proceed based on the presumption and in reliance on this order without requesting an advisory opinion. An advisory opinion is an option, not a requirement.
Under the injunction, to show that an LFO is disqualifying, an advisory opinion must set out the amount of the LFO. It is not enough just to provide an estimate or to say the amount is at least some given amount. The reason is this. If the person is unable to pay, the LFO is not disqualifying, so the requirement to set out the amount of the LFO makes no difference. If the person is able to pay, the State must tell the person the amount that must be paid—no more (because requiring the person to pay more as a condition of voting would plainly be unconstitutional) and no less (because the point is to allow the person to make the required payment).
In short, the remedy will allow prospective voters to determine whether they have LFOs, at least to the extent that is possible at all; will allow them to vote if they are otherwise eligible but have LFOs they are unable to pay; will reduce though not eliminate the risk of unfounded prosecutions; and will allow much easier and more timely administration than the system the State now has in place.
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This last point is important. Recall that under its current system, the Division of Elections determines, for every person who submits a registration, whether the person has one or more felony convictions. For each conviction, the Division must find the judgment, determine whether it was for murder or a sexual offense, determine whether the person is in prison or on supervision, calculate the total amount of LFOs, and find every payment that has been made not only on an LFO but for any other purpose related to the conviction. The State surely has an interest in administering as efficiently as possible the procedures designed to prevent ineligible individuals from voting—the procedures that check for convictions of murder and sexual offenses and for individuals who are in prison or on supervision, not just for individuals with LFOs. Because the Division lacks sufficient staff to perform these duties in a reasonable time—as set out above, the Division is on track to complete the process by 2026 even without the added LFO procedures—every minute saved on LFOs is a minute that becomes available to review for murders, sexual offenses, prison, and supervision. Every minute available for those purposes increases the chance that ineligible individuals will be removed from the rolls—a goal that those on all sides should embrace.
The time saved by the remedy put in place by this order will be substantial. Most felony sentences do not include a fine or restitution. So in most cases, the Division will need to do nothing more on LFOs than review the judgment to
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confirm there is no fine or restitution. In the remaining cases—the cases with a fine or restitution—the overwhelming majority of felons will be unable to pay. Based on this order, the Division will be able to quickly determine that the person has made an adequate showing of inability to pay, and the Division will rarely have a basis to challenge that showing. This will end the required work on LFOs.
This remedy is far better than the current system in another respect as well. The State proposes to push onto the Supervisors of Elections much of the work related to LFOs. Thus, for example, the State says the plaintiffs’ procedural-dueprocess claim is unfounded because a voter is entitled to a hearing before the Supervisor of Elections on issues that include whether LFOs have been paid and whether the voter is unable to pay them. This would place an impossible burden on the Supervisors—a burden that the remedy provided by this order eliminates in all but the rarest of cases.
The remedy is by no means perfect. The pay-to-vote system will still make voter-registration efforts more difficult than they would be without the LFO requirement and will still deter at least some eligible citizens from registering and voting. Administering the pay-to-vote system will still be difficult, take too long, and consume too many Division of Elections resources. The remaining problems would be remedied if the entire pay-to-vote requirement, as applied to those who
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are able to pay as well as those who are not, was ruled unconstitutional. The plaintiffs have fallen just short of such a ruling. XX. Conclusion
This order is intended to resolve all claims among all parties and to grant all the relief to which the plaintiffs are entitled. The order includes an injunction, directs the clerk to enter a Federal Rule of Civil Procedure 58 judgment, and reserves jurisdiction to enforce the injunction and judgment. For the reasons set out in Jones v. Governor of Florida, 950 F.3d 795 (11th Cir. 2020), and in this order,
IT IS ORDERED: 1. These five cases are consolidated for all purposes. All filings must be made in the consolidated electronic case file, No. 4:19cv300. 2. It is declared that the Florida pay-to-vote system is unconstutional in part:
(a) The system is unconstitutional as applied to individuals who are otherwise eligible to vote but are genuinely unable to pay the required amount.
(b) The requirement to pay, as a condition of voting, amounts that are unknown and cannot be determined with diligence is unconstitutional.
(c) The requirement to pay fees and costs as a condition of voting is unconstitutional because they are, in substance, taxes.
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(d) The 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.
3. The defendants must not take any step to enforce any requirement declared unconstitutional in paragraph 2 above.
4. The Secretary must make available in hard copy and online a form for requesting an advisory opinion from the Division of Elections substantially in the form of Attachment 1 to this order, subject to formatting and nonsubstantive modifications including, for example, addition of an address to which the request should be sent. This order refers to this as “the required form.”
5. Each defendant Supervisor of Elections must make available at each office and must post online a notice of the right to request such an advisory opinion from the Division of Elections. The Supervisor must make the required form available in hard copy and online, either directly or by link to a state website.
6. If (a) within 21 days after receipt of a request for an advisory opinion using the required form that includes a request for a statement of the amount of any fine or restitution that must be paid to make the requesting person eligible to vote, (b) the Division of Elections does not provide an advisory opinion that includes the requested statement of the amount that must be paid together with an explanation of how the amount was calculated, then (c) the defendants must not take any step
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to prevent, obstruct, or deter the requesting person from registering to vote and voting, (d) except on grounds unrelated to unpaid financial obligations, (e) unless and until the Division of Elections provides an advisory opinion that includes the requested statement of the amount that must be paid together with an explanation of how the amount was calculated.
7. If (a) within 21 days after receipt of a request for an advisory opinion using the required form that asserts inability to pay, (b) the Division of Elections does not provide an advisory opinion that asserts the requesting person is able to pay and provides a factual basis for the assertion, then (c) the defendants must not take any step to prevent, obstruct, or deter the requesting person from registering to vote and voting, (d) except on grounds unrelated to unpaid financial obligations.
8. If (a) within 21 days after receipt of a request for an advisory opinion using the required form, (b) the Division of Elections does not provide an advisory opinion showing the person is ineligible to vote, then (c) the defendants must not take any step to cause or assist a prosecution of the requesting person for registering to vote and voting, (d) based on anything the requesting person does before the Division of Elections provides an advisory opinion that shows the person is ineligible to vote, (e) except on grounds unrelated to financial obligations the State asserts the person must pay as a condition of voting.
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9. For purposes of paragraphs 7 and 8, an assertion by the Division of Elections that a person is able to pay will have no effect—and paragraphs 6 and 7 will be applied as if the Division of Elections had made no such assertion—if (a) the requesting person had an appointed attorney or was granted indigent status in the last proceeding that resulted in a felony conviction, or (b) the person submitted with the request for an advisory opinion a financial affidavit that, if submitted in connection with a felony proceeding in a Florida circuit court, would be sufficient to establish indigent status under Florida Statutes § 27.52, or (c) all financial obligations that would otherwise disqualify the person from voting have been converted to civil liens, unless (d) the Division of Elections has credible and reliable information that the requesting person is currently able to pay the financial obligations at issue.
10. This order does not require any person to request an advisory opinion. The defendants must not take any step to prevent, obstruct, or deter a named plaintiff or member of the subclass from registering to vote or voting, except on grounds unrelated to unpaid financial obligations, if (a) the person had an appointed attorney or was granted indigent status in the last proceeding that resulted in a felony conviction, or (b) the person submits a financial affidavit that, if submitted in connection with a felony proceeding in a Florida circuit court, would be sufficient to establish indigent status under Florida Statutes § 27.52, or
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(c) all financial obligations that would otherwise disqualify the person from voting have been converted to civil liens, unless (d) the Division of Elections or Supervisor of Elections in the person’s home county has credible and reliable information that the requesting person is currently able to pay the financial obligations at issue.
11. The Secretary must make available in hard copy and online a statement of rules governing eligibility to vote after a felony conviction substantially in the form of Attachment 2 to this order.
12. Each defendant Supervisor of Elections must post at its offices and online a statement of rules governing eligibility to vote after a felony conviction substantially in the form of Attachment 2 to this order.
13. It is declared that financial obligations do not render these individuals ineligible to vote: Jeff Gruver, Emory Marquis Mitchell, Betty Riddle, Karen Leicht, Kristopher Wrench, Raquel L. Wright, Steven Phalen, Jermaine Miller, Clifford Tyson, Latoya A. Moreland, Curtis D. Bryant, Bonnie Raysor, Diane Sherrill, Lee Hoffman, Rosemary Osborne McCoy, and Sheila Singleton.
14. The defendants must not take any action based on financial obligations to prevent, obstruct, or deter the individuals listed in paragraph 13 from registering to vote or voting.
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15. It is declared that fees and costs do not render Keith Ivey ineligible to vote.
16. The defendants must not take any action based on fees or costs to prevent, obstruct, or deter Keith Ivey from registering to vote or voting. This does not preclude action based on any unpaid fines.
17. It is declared that Florida Statutes § 97.052(2)(t) (2019) violates the National Voter Registration Act. The defendants must not use a form based on that statute.
18. The claims of the plaintiffs Kelvin Leon Jones and Luis Mendez are dismissed without prejudice. Their exclusion from the class and subclass is withdrawn, so they are now members if they meet the class and subclass definitions.
19. The declaratory and injunctive relief provided by this order runs in favor on the remaining named plaintiffs, including individuals and organizations, and the members of the certified class and subclass.
20. The declaratory and injunctive relief provided by this order and by the judgment that will be entered based on this order bind the defendants and their officers, agents, servants, employees, and attorneys—and others in active concert or participation with any of them—who receive actual notice of the injunctive relief by personal service or otherwise.
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21. The court retains jurisdiction to enforce the declaratory and injunctive relief and the judgment that will be entered based on this order.
22. It is determined under Local Rule 54.1 that the plaintiffs in Nos. 4:19cv301, 4:19cv302, and 4:19cv304 are entitled to recover attorney’s fees. Under Local Rule 54.2, these plaintiffs are entitled to recover costs. Rules 54.1 and 54.2 will govern further proceedings to determine the amount of the fee and cost awards, except that the deadline for the plaintiffs’ filings under Rule 54.1(E) and for a bill of costs under Rule 54.2 is 30 days after (a) the deadline for filing a notice of appeal from the judgment on the merits, if no appeal is filed, or (b) if an appeal is filed, the date of issuance of the mandate of the United States Court of Appeals for the Eleventh Circuit affirming the judgment or dismissing the appeal. No motion to determine the fee amount and no bill of costs may be filed prior to the resolution of any appeal (or, if no notice of appeal is filed, prior to the expiration of the deadline for filing a notice of appeal).
23. The clerk must enter judgment in the consolidated case in favor of the plaintiffs in Nos. 4:19cv301, 4:19cv302, and 4:19cv304, as set out in this order, and dismissing without prejudice the claims in Nos. 4:19cv272 and 4:19cv300. The judgment must include the names of all parties and the class and subclass
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definitions and must explicitly retain jurisdiction to enforce the injunction and judgment.
SO ORDERED on May 24, 2020. s/Robert L. Hinkle United States District Judge
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REQUEST FOR AN ADVISORY OPINION To the State of Florida Division of Elections: I may have been convicted of one or more felonies. I request an advisory opinion on whether I owe a fine or restitution that makes me ineligible to vote. [CHECK ALL THAY APPLY] ___ I request a statement of the amount of any fine or restitution that must
be paid to make me eligible to vote and an explanation of how the amount was calculated. ___ I believe I am unable to pay the required amount. ___ I am submitting a financial declaration. (This is not required but may assist the Division of Elections in processing the request for an advisory opinion.)
[PROVIDE AT LEAST ONE OF THE FOLLOWING] My street address is: My email address is: [PROVIDE THE FOLLOWING ONLY IF YOU CHOOSE] My telephone number is:

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STANDARDS GOVERNING ELIGIBILITY TO VOTE AFTER A FELONY CONVICTION
A felony conviction in Florida for murder or a sexual offense makes a person ineligible to vote in Florida.
Any other felony conviction in Florida makes a person ineligible to vote in Florida only if:
(1) the person is in prison or jail on the offense; (2) the person is on parole, probation, or another form of supervision on the
offense; or (3) the person owes a fine or restitution included in the judgment on the
offense—but a fine or restitution does not make the person ineligible if the person is unable to pay it. Unpaid fees or costs do not make a person ineligible to vote.
A felony conviction in another state makes a person ineligible to vote in Florida only if the conviction would make the person ineligible to vote in the state where the person was convicted.
A person who is unsure about whether the person owes a fine or restitution that makes the person ineligible to vote may request an advisory opinion from the Florida Division of Elections on a form available from a Supervisor of Elections or the Division or online at <__________>. If the Division does not provide an advisory opinion within 21 days, there will be limits on the State’s ability to assert that a fine or restitution makes the requesting person ineligible to vote.
Even if a person would be ineligible to vote under the standards set out above, the person is eligible if the person’s right to vote has been restored by the Florida Executive Clemency Board.
An offense on which a person was not adjudicated guilty does not make a person ineligible to vote. A misdemeanor conviction does not make a person ineligible to vote.

 </s> Case 4:19-cv-00301-MW-MJF Document 1 Filed 06/28/19 Page 1 of 42
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION

BONNIE RAYSOR, and DIANE SHERRILL, individually and on behalf of others similarly situated,

Plaintiffs,

Civil Action No. _____________

v.

[Class Action]

LAUREL M. LEE, in her official capacity as Secretary of State,

Defendant.

COMPLAINT Plaintiff Bonnie Raysor and Plaintiff Diane Sherrill (“Plaintiffs”) brings this class action against Laurel M. Lee, in her official capacity as Secretary of State (“Defendant”), and allege the following:
INTRODUCTION 1. On November 6, 2018, almost two-thirds of Floridians voted for Amendment 4 to restore the right to vote to individuals with past felony convictions. Except for individuals convicted of murder or felony sexual offense, Amendment 4 re-enfranchised otherwise eligible Florida

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citizens automatically “upon completion of all terms of sentence including parole or probation.” Fla. Const. art. VI, § 4.
2. On June 28, 2019, Governor Ron DeSantis signed Senate Bill 7066 (“SB 7066”), which purports to “implement” Amendment 4, in part by seeking to define “all terms of sentence” to include the payment of any restitution, fines, and fees (“legal financial obligations” or “LFOs”) ordered by the court “as a part of the sentence or that are ordered by the court as a condition of any form of supervision.” S.B. 7066, 2019 Leg., Reg. Sess., § 25 (Fla. 2019) (emphasis added).
3. The natural and foreseeable effect of this “implementing” law will be to drastically reduce the number of people with past convictions who regain the right to vote under Amendment 4; permanently disenfranchise many minor offenders; and dole out the right to vote on the basis of wealth.
4. On its face, SB 7066 discriminates on the basis of wealth. People with the financial means to satisfy their LFOs either during or at the conclusion of their sentence of incarceration or supervision will have their rights automatically restored. But, people whose socioeconomic status prevents them from satisfying their LFOs concurrent with the
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termination of their incarceration or supervision will be prohibited from voting until they are able to pay their outstanding balance.
5. As a result, whether otherwise eligible individuals will have the right to vote upon completion of their sentence of incarceration and supervision depends entirely on their ability to pay for it. Indeed, two otherwise eligible individuals with the same conviction, who received the same terms of probation and parole, and the same LFOs, would be treated differently under SB 7066 based solely on whether they have the means to satisfy their LFOs.
6. In short, SB 7066’s wealth-based discrimination not only violates the Fourteenth Amendment, but also the Twenty-Fourth Amendment by functioning as a modern-day poll tax.
7. Further, SB 7066 is vague as to its scope. For example, it is internally contradictory with respect to whether fees or costs incurred after sentencing may nonetheless disenfranchise a person. Although the statute states that individuals must pay all LFOs imposed as a condition of supervision, it also states that individuals must pay only the amount specifically ordered by the court at sentencing. Yet, standard conditions of probation, which are imposed at sentencing, often require individuals
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to pay off certain debts that are only incurred after sentencing. Thus, SB 7066 will confuse potential voters and chill core First Amendment speech.
8. Finally, under SB 7066, it will be extraordinarily difficult for individuals with past convictions to determine their eligibility to vote and the risk of erroneous deprivation of the right to vote is high. Persons with both disqualifying and non-disqualifying LFOs will struggle to disaggregate those outstanding debts. And, the updated state voter registration form provided for in SB 7066 fails to inform people with convictions of the new eligibility requirements the law creates.
9. As a result of SB 7066, people with convictions will often be left in the dark and find themselves in need of a lawyer just to find out their eligibility to vote. Individuals who register in error risk felony prosecution and thus the unique threat of recidivism. Such ambiguity surrounding access to the right to vote violates procedural due process and cannot survive scrutiny under the First and Fourteenth Amendments.
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JURISDICTION AND VENUE 10. This action is brought under the United States Constitution. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. 11. This Court has personal jurisdiction over Defendant Lee, who is an appointed state official and a resident of Florida. 12. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b). Among other things, the office of Defendant Lee is located in this District. 13. This Court has authority to issue declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201 and 2202.
PARTIES 14. Plaintiff Bonnie Raysor (née Bonnie Ryan) is fifty-eight years old and has resided in Florida since she was seventeen. She is a United States citizen and currently resides in Boynton Beach, Florida. 15. After becoming addicted to opioids, Plaintiff Raysor was charged in 2009 and convicted in October 2010 of six felony and two misdemeanor drug-related charges. Since she was unable to afford an attorney, Plaintiff Raysor was assigned a public defender for these charges. She was sentenced to one year, six months, and five days in
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prison. Plaintiff Raysor was released from prison on March 29, 2011, with no parole or probation. She has no other criminal convictions.
16. Plaintiff Raysor works as an office manager and makes thirteen dollars per hour. She has a mortgage and a car payment and is responsible for the utilities, groceries, and other basic needs for herself and her nineteen-year-old daughter, who is a full-time student. She also has approximately $48,000 in student loan debt.
17. Voting is important to Plaintiff Raysor. As a Floridian, she knows how important a single vote can be in a close election. Voting gives her the opportunity to make a difference, and to speak her mind politically. It gives her the opportunity to make her voice heard.
18. When Amendment 4 passed, Plaintiff Raysor was thrilled to regain her right to vote. She proactively reached out for help to understand her rights and to ensure that she would be able to register to vote despite her past felony conviction.
19. Under SB 7066, however, Plaintiff Raysor is unable to register and vote in Florida. She has $4,260 in outstanding fines and fees related to her conviction.
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20. Upon information and belief, this sum includes fines and fees associated with her two misdemeanor and felony convictions. Upon information and belief, when Plaintiff Raysor was convicted, all fines and fees levied upon her were in the form of a civil lien. These fines and fees include the following: court costs, cost of prosecution, crime stoppers fund, cost of investigation, drug trust fund, public defender application fee, and public defender fee.
21. Based on her current income and ability to pay, Plaintiff Raysor is on a payment plan with the court, where she pays $30 per month towards her outstanding balance. Under this payment plan, Plaintiff Raysor will not pay off her LFOs until 2031. Thus, under SB 7066, she will not regain her right to vote for another twelve years, at which time she will be seventy years old.
22. Plaintiff Diane Sherrill is fifty-eight years old and is a Florida resident. She is a United States citizen and currently resides in St. Petersburg, Florida.
23. As a result of her struggle with addiction, Plaintiff Sherrill was convicted of one count of possession of crack cocaine in the third degree, two counts of possession of cocaine in the third degree, and one
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count of prostitution in the third degree between 1999 and 2005. For each of these charges, Plaintiff Sherrill was determined to be indigent and was assigned a public defender.
24. Plaintiff Sherrill has been drug-free and sober for over a decade. She has not had any criminal convictions since 2005. She has two adult children who live in the area and one grandchild. She is an active member of her church, Cornerstone Community Church.
25. Plaintiff Sherrill largely lives on a fixed Supplemental Security Income (SSI) of approximately $770 per month. She lives in public housing and receives approximately $70 per month in Supplemental Nutrition Assistance Program (SNAP) benefits, otherwise known as food stamps. She has recently obtained part-time work at the local Ruby Tuesdays as a hostess, earning $8 per hour for 15 hours per week.
26. Plaintiff Sherrill lives by herself and is responsible for her monthly rent of $200, her utility bills (including electric, internet, and phone), groceries, car insurance and gas, and any other household expenses.
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27. Plaintiff Sherrill lost her driver’s license as a result of her convictions and unpaid LFOs. After ten years, she was recently able to reinstate her driver’s license in order to help care for her first grandchild.
28. Voting is important to Plaintiff Sherrill. As a Floridian, she knows how important a single vote can be in a close election. Voting gives her the opportunity to make a difference, and to speak her mind politically. It gives her the opportunity to make her voice heard.
29. A few years ago, Plaintiff Sherrill’s church set up a table for voter registration of congregants. Plaintiff Sherrill inquired about whether she could regain her voting rights. The organizers referred her to the Pinellas County Supervisor of Elections, Deborah Clark. Plaintiff Sherrill wrote to Supervisor Clark about restoring her voting rights and received an application in the mail in response.
30. Plaintiff Sherrill wanted to apply to restore her voting rights but could not understand the confusing application she was sent or the process she was supposed to follow.
31. After the passage of Amendment 4, Plaintiff Sherrill was excited to register to vote and join her political community in voting in
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the next election. Since her convictions are well behind her, she believed she would be eligible to vote under Amendment 4.
32. Under SB 7066, however, Plaintiff Sherrill will not be eligible to register to vote and vote in the next election.
33. Plaintiff Sherrill owes $2,279 in outstanding LFOs related to her convictions. These LFOs include, inter alia, the following: indigent criminal defense fees, fines, investigative costs, and court costs. Upon information and relief, these LFOs also include penalties for nonpayment.
34. Upon information and belief, all of these outstanding LFOs were converted to civil liens and sent to a collections agency. Plaintiff Sherrill is living on a financial razor’s edge. She is unable to afford to pay these LFOs at this time and cannot foresee a time when she will ever be able to pay these LFOs in full. As a result, SB 7066 may amount to permanent disenfranchisement for Plaintiff Sherrill.
35. Plaintiffs Raysor and Sherrill seek to represent a class for Count 2 (Twenty-Fourth Amendment) and Count 4 (Procedural Due Process) defined as: all persons otherwise eligible to register to vote in
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Florida who are denied the right to vote pursuant to SB 7066 because they have outstanding LFOs.
36. Plaintiffs Raysor and Sherrill seek to represent a subclass for Count 1 (Fourteenth Amendment) defined as: all persons otherwise eligible to register to vote in Florida who are denied the right to vote pursuant to SB 7066 because they are unable to pay off their outstanding LFOs due to their socioeconomic status.
37. Defendant Laurel M. Lee is the Secretary of State of Florida (“the Secretary”) and is sued in her official capacity. The Secretary is the head of the Department of State (“the Department”) and the chief election officer of the state. As chief election officer, the Secretary is responsible for obtaining and maintaining “uniformity in the interpretation and implementation of the election laws,” and providing “uniform standards for the proper and equitable interpretation and implementation” of such laws. Fla. Stat. § 97.012(1)-(2). The Secretary is also responsible for administering the statewide voter registration system. Id. § 97.012(11).
38. Further, under SB 7066, the Department of State is responsible for identifying registered voters who have been convicted of a felony and whose voting rights have not been restored, and for initiating
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the process for removing potentially ineligible individuals from the voter rolls. See S.B. 7066, supra, §§ 24, 25, amending Fla. Stat. § 98.075(5). The Department is similarly responsible for obtaining and reviewing information on new registrants’ eligibility for rights restoration, and for initiating the process for rejecting applications from potentially ineligible voters. See id.§ 25, enacting Fla. Stat. § 98.0751(3)(a).
FACTS 39. The Florida Constitution prohibits individuals with felony convictions from voting unless their voting rights have been restored. Fla. Const. art. VI, § 4. As of January 8, 2019, except for persons convicted of murder or felony sexual offense, voting rights are restored automatically “upon completion of all terms of sentence including parole and probation.” Id. Persons convicted of murder or felony sexual offense are permanently disenfranchised but may apply to the Board of Executive Clemency to have their voting rights restored on a case-by-case basis. See S.B. 7066, supra, § 25, enacting Fla. Stat. §98.0751(1).
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SB 7066 40. On June 28, 2019, Governor DeSantis signed SB 7066 into law. SB 7066 purports to implement the constitutional provision restoring voting rights to individuals with felony convictions, and states: A person who has been disqualified from voting based on a felony conviction for an offense other than murder or a felony sexual offense must have such disqualification terminated and his or her voting rights restored pursuant to s. 4, Art. VI of the State Constitution upon the completion of all terms of his or her sentence, including parole or probation. S.B. 7066, supra,§ 25, enacting Fla. Stat. § 98.0751(1). 41. But SB 7066 does not merely implement Amendment 4. Rather, it severely restricts access to the right to vote. SB 7066 defines “completion of all terms of sentence” to include not only any term of imprisonment, probation, community control or supervision (collectively, “carceral supervision”), but also the full payment of any LFOs, including restitution, fines and fees “ordered by the court as a part of the sentence or that are ordered by the court as a condition of any form of supervision,” even if those obligations have been converted to civil liens. Id., enacting Fla. Stat. § 98.0751(2). 42. Governor DeSantis’ signing statement accompanying SB 7066 does not address these financial barriers to voting but does state his
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personal opinion that Florida voters made a “mistake” by restoring “voting rights to violent felons.” By requiring the payment of all LFOs— many of which people with past convictions will never be able to pay— Governor DeSantis has ratified a law that will undermine Amendment 4, which he deems a “mistake.”
43. Florida does not require courts to consider ability to pay at the time LFOs are imposed. When seeking to enforce compliance with a legal financial obligation, however, courts may inquire into ability to pay. See, e.g., Fla. Stat. § 938.30. Based on the individual’s ability to pay, a court seeking to enforce a legal financial obligation may order the individual to comply with a payment schedule; convert the obligation to a judgment or civil lien against the individual’s property; or may, in limited instances, convert outstanding fines and court costs “into a court-ordered obligation to perform community service.” Id. Upon information and belief, many mandatory LFOs cannot be converted to community service.
44. SB 7006 defines the “completion” of LFOs to include: actual payment of the obligation in full; termination of the obligation by the court, with the approval of the payee; or completion of all community service hours where the court has converted the financial obligation to
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community service. SB 7066, supra, § 25, enacting Fla. Stat. § 98.0751(5)(e). Finally, SB 7066 states that “[t]he requirement to pay any financial obligation specified in this paragraph is not deemed completed upon conversion to a civil lien.” Id. This language, however, does not directly address the circumstance of Plaintiff Raysor, whose LFOs were imposed as civil liens as an initial matter.
45. While SB 7066 acknowledges that LFOs can be modified by the sentencing court, it does not require any modifications to LFOs, even in cases where indigence or inability to pay is the only barrier to voting rights restoration.
IMPACT OF SB 7066 46. Across all jurisdictions in Florida, over $700 million in fines, court costs, and other monetary penalties were assessed in 2018 alone. In addition, over $481 million in fees, service charges, and costs were assessed during 2018. These figures do not include the enormous sum of fines and fees that were assessed prior to 2018 but are still outstanding. 47. Criminal Circuit Courts in Florida assessed over $275 million in fines and fees during 2018. Of that amount, nearly thirty percent is categorized as at risk for collection due to indigence or reduction to a civil
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judgment or lien. In several Circuits, the amount at risk due to indigence is over forty percent. Criminal Circuit Courts in Florida converted only about $1.2 million in court fines to community service during 2018.
48. The Department of Corrections reported just under $20 million dollars in revenue from cost of supervision fees in fiscal year 20172018, nearly $50 million dollars in revenue from restitution, fines, and court costs, and over $20 million dollars in court ordered fees.1
49. Individuals with past felony convictions are more likely to have lower incomes than other registered voters, and to live in neighborhoods with higher unemployment than other Florida voters.2
50. On information and belief, many individuals with fines, fees, and restitution ordered as part of their sentence or as a condition of supervision related to a felony conviction also have other LFOs assessed through the criminal justice system. These may include LFOs associated with felony convictions but not ordered at the time of sentence or as a condition of supervision. In other instances, LFOs may be related to
1 Fla. Dep’t of Corr., 2017-2018 Annual Report 6, http://www.dc.state.fl.us/pub/annual/1718/FDC_AR2017-18.pdf.
2 See Kevin Morris, Thwarting Amendment 4, Brennan Ctr. for Justice, https://www.brennancenter.org/sites/default/files/analysis/2019_05_FloridaAmendment_FI NAL-3.pdf.
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misdemeanor or civil judgments, rather than a felony conviction. On information and belief, these LFOs are not disaggregated by the County or the court when converted to a civil judgment, lien, community service, or incorporated into a payment plan.
51. For example, upon information and belief, Plaintiff Raysor has fines and fees associated with her misdemeanor convictions, which are a part of the $4,260 she still owes. Based on the records available to Plaintiff Raysor, she cannot ascertain how much of her $30 monthly payments go towards her felony versus misdemeanor LFOs. Nor does she know if she may prioritize paying the LFOs associated with her felony convictions, which prevent her from voting.
52. Similarly, Plaintiff Raysor does not know how the outstanding LFOs associated with her felony convictions break down, such that she cannot determine which of these LFOs fall within the scope of SB 7066, and which fall outside the scope of SB 7066. Nor does she know whether the fact that her LFOs were initially imposed as a civil lien—rather than converted—affects their status under SB 7066.
53. Likewise, Plaintiff Sherrill believes that some of her outstanding LFOs are penalties for nonpayment that should not bar her
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from voting under SB 7066. But since the full balance has been sent to a collections agency, she does not know if or how she may prioritize paying the LFOs that disqualify her from voting.
54. Plaintiff Sherrill does not know if there are additional fines, fees, and costs within her outstanding balance that fall outside the scope of SB 7066.
55. For individuals whose LFOs have been converted to community service, a civil judgment, or lien, satisfaction of the obligation is often determined by a private third-party. Private non-profit, community, or charitable organizations may all serve as community service agencies for the purpose of court-ordered community service. See Fla. Stat. § 318.18. The responsibility for monitoring and recording community service hours—defined as “uncompensated labor for a community service agency”—falls to these entities. Id. Similarly, a county may pursue the collection of outstanding LFOs through private attorneys and collection agencies. Not only does this place the obligation in the hands of a third party, but Florida allows those parties to impose a surcharge of up to forty percent of the balance owed as a collection fee.
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56. For example, at times when she was facing financial hardship, Plaintiff Raysor has fallen behind on paying her LFOs. As a result, in 2014, her debts were placed with a collection agency, Penn Credit, which imposed a forty percent surcharge on her balance. Plaintiff Raysor also lost her driver’s license as a consequence of her overdue LFOs. Ultimately, she was able to petition the court to remove the surcharge, place her back on a payment plan, and reinstate her driver’s license. She currently pays $30 per month toward her LFO balance.
57. Upon information and belief, Plaintiff Sherrill’s outstanding balance includes several substantial fees imposed as penalties for transfer to a collections agency.
58. Fines and fees that may be assessed as part of an individual’s sentence include, but are not limited to: mandatory assessments for the Court Cost Clearing Trust Fund, the Crimes Compensation Trust Fund, the Operating Trust Fund of the Department of Law Enforcement, a mandatory $225 fine for a felony conviction, mandatory fines assessed based on the specific felony conviction or convictions, mandatory costs authorized by local governmental entities, discretionary costs related to
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the specific type of case or conviction, and additional surcharges on these costs. See generally ch. 983, Fla. Stat.
59. In addition, conditions of carceral supervision imposed at sentencing may include, but are not limited to: payment of debts due to a detention center for medical care, treatment, hospitalization, or transportation; application fees and attorneys’ costs and fees if the individual had a public defender appointed; and reimbursement for costs of drawing and transmitting blood or DNA samples to the Department of Law Enforcement. See, e.g., Fla. Stat. § 948.03.
60. In other words, under SB 7066, it appears an individual’s right to vote may be conditioned on the payment of outstanding medical debt that accrues after sentencing.
61. Thus, the requirement in SB 7066 that an individual pay off all LFOs “ordered by the court as a condition of any form of supervision,” SB 7066, § 25, enacting Fla. Stat. § 98.0751(2)(a)(5)(b), is inconsistent with later language stating that payment of LFOs “accrue[d] after the date the obligation is ordered as a part of the sentence” is not required to be eligible for rights restoration, id., enacting Fla. Stat. § 98.0751(2)(a)(5)(c). This internally incoherent language will undoubtedly
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leave Florida citizens in the dark about which LFOs are disqualifying and which LFOs are not disqualifying.
62. Upon information and belief, this confusion will only be compounded by the lack of easy access to records disaggregating the LFOs incurred by a person with a past conviction. Plaintiffs Raysor and Sherrill, even with assistance of counsel, have been unable to ascertain this information with respect to their own outstanding debts.
63. SB 7066 itself recognizes that Florida citizens are not likely to be able to assess their own eligibility to vote under this law. It provides for the creation of a “Restoration of Voting Rights Work Group.” SB 7066, §33. The work group is charged with developing recommendations for the Legislature related to “[t]he process of informing a registered voter of the entity or entities that are custodians of the relevant data necessary for verifying . . . eligibility for restoration of voting rights.” Id.
64. Yet, SB 7066 becomes effective on July 1, 2019, and these recommendations are not due to the Legislature for consideration until November 1, 2019. Id. In other words, the Legislature passed SB 7066 fully aware that eligible Florida citizens will struggle or be unable to ascertain their eligibility to vote.
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65. Nonetheless, after July 1, 2019, Florida citizens will risk criminal sanction if they register to vote while their voting rights have not, in fact, been restored under SB 7066’s vague and ambiguous language. This is so despite the fact that the updated state voter registration form required by SB 7066 will not mention the LFO requirement at all.
66. The mechanics of SB 7066 are inordinately complicated for affected citizens, and its scope is vague. Its consequences, however, are clear. Under SB 7066, Floridians with past felony convictions who have completed their term of carceral supervision, including incarceration, probation, and parole, and who either do not have LFOs or have paid them off, will automatically have their voting rights restored. Individuals who have outstanding LFOs are denied the right to vote unless or until they are able to satisfy their financial obligations. An individual who is unable to pay off her outstanding LFOs due to her socioeconomic status is permanently denied the right to vote.
67. In short, SB 7066 conditions the restoration of voting rights entirely upon an individual’s financial resources, in violation of the Fourteenth and Twenty-Fourth Amendments.
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EXECUTIVE CLEMENCY 68. Under SB 7066, individuals who are disenfranchised solely because of their outstanding LFOs may apply for executive clemency, subject to the “unfettered discretion” of the Florida Governor. See SB 7066, § 25, enacting Fla. Stat. § 98.0751(1); Fla. R. Exec. Clemency 4. This “unfettered discretion” means the Governor has the authority “to deny clemency at any time, for any reason.” Fla. R. Exec. Clemency 4. 69. Thus, individuals able to pay their LFOs can register and vote automatically upon completing carceral supervision, while those unable to pay are disenfranchised indefinitely, subject to the whim of the Governor. 70. Applying for executive clemency is extremely burdensome. An individual with outstanding LFOs must wait seven years after the completion of carceral supervision to apply for a restoration of civil rights.3 Fla. R. Exec. Clemency 5. If denied, an applicant must wait for at least two years to reapply. Fla. R. Exec. Clemency 14. Applications must contain certified copies of the charging document, judgment, and
3 Individuals with no outstanding restitution may be eligible to apply for rights restoration after five years, depending on their crime of conviction. See Fla. R. Exec. Clemency 9.
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sentence for each felony conviction. Fla. R. Exec. Clemency 6(B). After
applying, the individual is subject to an investigation by the Florida
Commission on Offender Review, and her application will be decided at
a hearing in Tallahassee.4 Fla. R. Exec. Clemency 8(B). The applicant
must give ten days notice to the Board if she or any other person intends
to speak at the hearing on her behalf. Fla. R. Exec. Clemency 12(B). The
final determination of any application is subject to the “unfettered
discretion” of the Florida Governor. Fla. R. Exec. Clemency 4.
71. Thus, even after completing the burdensome application
process, individuals who lack the means to pay their LFOs will not be
allowed to vote “unless Florida’s Governor approves restoration of this
fundamental right” or a complete remission of their LFOs. Hand v. Scott,
285 F. Supp. 3d 1289, 1292 (N.D. Fla. 2018). Meanwhile, similarly
4 Prior to January 8, 2019, all Floridians with past felony convictions were permanently disenfranchised unless they applied for and obtained a restoration of civil rights from the Governor and the Board of Clemency. Under this system, individuals who had paid their restitution were eligible to apply for rights restoration without being subject to a hearing. In Johnson v. Governor of Fla., the Eleventh Circuit found the hearing requirement, standing alone, insufficient to support a claim that restoration was conditioned upon an applicant’s financial resources. 405 F.3d 1214, 1216 n.1 (11th Cir. 2005). The Court reserved ruling, however, on the question of “whether conditioning an application for clemency on paying restitution would be an invalid poll tax.” Id. Plaintiffs’ claims present exactly the question reserved by the Court. But for their outstanding LFOs, Plaintiffs’ voting rights would be restored. But for their outstanding LFOs, Plaintiffs would not be subject to a discretionary restoration process at all. The entire clemency procedure is conditioned upon otherwise eligible individuals’ inability to pay.
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situated individuals—including those convicted of the same crimes—are granted automatic restoration of their voting rights based solely on their ability to pay their LFOs.
72. This process necessarily discriminates on the basis of wealth. Rights restoration is guaranteed to individuals of financial means, while the indigent must not only suffer the indignity of having to beg for their rights to be restored, but they must do so on blind faith, without any notice of the conditions, factors, or whims that will determine if their application is successful.
CLASS ALLEGATIONS 73. Upon information and belief, at least 500,000 individuals with past felony convictions who are otherwise eligible under Amendment 4 have outstanding LFOs and are therefore not qualified for voting rights restoration under SB 7066, just like Plaintiffs. Countless otherwise eligible individuals will be prevented from exercising their right to vote in the future because they are unable to pay their LFOs due to their socioeconomic status. 74. Pursuant to Federal Rule of Civil Procedure 23, Plaintiffs Raysor and Sherrill bring this action on behalf of themselves and all
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other similarly situated persons. Plaintiffs Raysor and Sherrill do not seek claims for compensatory relief. Instead, Plaintiffs seek only declaratory and injunctive relief broadly applicable to members of the Plaintiff Class and the Plaintiff Subclass, as defined above. The requirements of Rule 23, and in particular Rule 23(b)(2), are met with respect to the Plaintiff Class and Plaintiff Subclass as defined in ¶¶ 22 and 23.
75. The members of the Plaintiff Class and Plaintiff Subclass are so numerous that joinder is impracticable. While the exact number of members in the Plaintiff Class and Plaintiff Subclass are not publicly available, upon information and belief, the total number of otherwise eligible citizens of Florida disenfranchised due to some combination of outstanding fines, fees, or restitution exceeds 500,000. The Plaintiff Class and Plaintiff Subclass are ascertainable through Defendant’s records and records kept by the Florida State Department of Corrections. Indeed, under SB 7066, it is Defendant’s responsibility to identify registrants who are not eligible for rights restoration because they have outstanding LFOs.
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76. Common questions of law and fact predominate over questions affecting only individual class and subclass members with respect to allegations in this complaint. Those questions include, but are not limited to, the following:
a. Whether SB 7066 discriminates on the basis of wealth in violation of the Fourteenth Amendment.
b. Whether SB 7066 violates the Twenty-Fourth Amendment. c. Whether SB 7066 creates an impermissible risk of
erroneous deprivation of the fundamental right to vote in violation of the Due Process Clause of the Fourteenth Amendment. 77. Plaintiffs’ claims are typical of the Plaintiff Class and Plaintiff Subclass as defined in ¶¶ 22 and 23. Plaintiffs Raysor and Sherrill are not aware of any conflict between their interests and those of the Plaintiff Class and Plaintiff Subclass they seek to represent. 78. Plaintiffs Raysor and Sherrill can fairly and adequately represent the interests of the Plaintiff Class and Plaintiff Subclass because they are similarly situated with class members. Plaintiffs Raysor and Sherrill have retained counsel experienced in class-action and voting
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rights litigation to represent them and the Plaintiff Class and Plaintiff Subclass for the purpose of this litigation.
79. Defendants have acted, or refused to act, on grounds generally applicable to the entire class, and final injunctive relief and corresponding declaratory relief are appropriate respecting the class as a whole.
CLAIMS Count 1: Wealth-Based Disenfranchisement,
Fourteenth Amendment 80. Plaintiffs reallege the facts set forth in paragraphs 1-79 above. 81. A state “violates the Equal Protection Clause of the Fourteenth Amendment whenever it makes the affluence of the voter or payment of any fee an electoral standard.” Harper v. Va. State Bd. of Elections, 383 U.S. 663, 666 (1966); see also Johnson v. Governor of Fla., 405 F.3d 1214, 1217 (11th Cir. 2005). 82. By requiring an otherwise eligible Florida citizen to pay all LFOs before she is eligible to restore her right to vote, SB 7066 impermissibly makes financial payments an electoral standard.
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83. By requiring an otherwise eligible Florida citizen to pay all LFOs before she is eligible to restore her right to vote, SB 7066 impermissibly makes the affluence of an otherwise eligible voter an electoral standard.
84. It is well established that “a citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction.” Dunn v. Blumstein, 405 U.S. 330, 336 (1972).
85. Wealth “is not germane to one’s ability to participate intelligently in the electoral process.” Harper, 383 U.S. at 668.
86. Plaintiffs Raysor and Sherrill and members of the Plaintiff Subclass are unable to afford to pay their remaining LFOs, and this is the only reason they are not eligible to vote in the state of Florida.
87. The mere possibility that LFOs could, in some cases, be modified—left to the discretion of individual judges—does nothing to alleviate this unconstitutional barrier to voting for Plaintiffs Raysor and Sherrill and other members of the Plaintiff Subclass. Nor does the possibility that the Governor could, if he felt so moved, exercise his discretion to restore the right to vote to individuals with outstanding LFOs on a case-by-case basis. Indeed, Representative James Grant noted
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in enacting SB 7066 that discretionary rights restoration is “‘a recipe for rampant discrimination.’”5 Moreover, it is well established that imposing additional requirements on voters who cannot pay is no more constitutionally permissible than outright disenfranchisement. See Harman v. Forssenius, 380 U.S. 528 (1965).
88. It is also well established that a state may not impose additional punishment6 or deprive a citizen of a fundamental right solely because “through no fault of his own, he cannot pay the fine.” Bearden v. Georgia, 461 U.S. 660, 673 (1983). In other words, Bearden requires a careful consideration of ability to pay before fundamental rights are withheld on the basis of failure to pay a fine. Failure to condition the LFOs requirement on an ability to pay inquiry further violates “the fundamental fairness required by the Fourteenth Amendment.” Id.
5 Tyler Kendall, Felons in Florida Won Back Their Right to Vote. Now a New Bill Might Limit Who Can Cast a Ballot, CBS News (May 23, 2019), https://www.cbsnews.com/news/florida-felons-won-back-right-to-vote-new-bill-might-limitwho-can-cast-ballot-2019-05-23/.
6 While not a necessary element of Plaintiffs’ claims, disenfranchisement on the basis of a past conviction—and continued because of inability to pay LFOs—certainly qualifies as punishment. See Johnson, 405 F.3d at 1228 (“Indeed, throughout history, criminal disenfranchisement provisions have existed as a punitive device.”); see also Act of June 25, 1868, ch. 70, 15 Stat. 73, 73 (Readmission Act for Florida) (prohibiting any change to the state constitution that “deprive[s] any citizen or class of citizens of the United States of the right to vote . . . except as punishment for such crimes as are now felonies at common law”).
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89. Florida has no cognizable interest in withholding the right to vote from citizens solely on the basis that they are unable to pay their LFOs. “[W]ealth or fee paying has . . . no relation to voting qualifications.” Harper, 383 U.S. at 670. When the LFOs requirement is applied to those unable to pay, “the statute merely prevents” citizens from voting “without delivering any money at all into the hands of [the State].” Zablocki v. Redhail, 434 U.S. 374, 389 (1978); see also Bearden, 461 U.S. at 670 (“Revoking the probation of someone who through no fault of his own is unable to make restitution will not make restitution suddenly forthcoming.”).
90. SB 7066 invidiously discriminates between Florida citizens with prior felony convictions who have been discharged from carceral supervision and who are able to pay their LFOs, and Florida citizens with prior felony convictions, who have been discharged from carceral supervision but are unable to pay their LFOs, in violation of the Fourteenth Amendment.
Count 2: Poll Tax, Twenty-Fourth Amendment 91. Plaintiffs reallege the facts set forth in paragraphs 1-90 above.
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92. The Twenty-Fourth Amendment provides that “[t]he right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, 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.” U.S. Const. amend. XXIV, § 1 (emphasis added).
93. For those who are otherwise eligible SB 7066 denies the right to vote to those who cannot afford to pay their LFOs solely by reason of their failure to pay fines and fees to the State of Florida.
94. SB 7066 hinges access to the right to vote on the payment of many fines and fees to the government—such as contributions to various state funds and to the costs of the court system itself—that fall well within any reasonable definition of “other tax.” See U.S. v. State Tax Comm’n of Miss., 421 U.S. 599, 606 (1975) (noting that the “standard definition of a tax” is any “enforced contribution to provide for the support of government”).
95. The failure to call SB 7066’s LFOs requirement a “poll tax” does nothing to change its function, which hinges access to the ballot box on the payment of a variety of fines and fees to the state of Florida. See
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Harman, 380 U.S. at 540-41 (“[T]he Twenty-fourth [Amendment] nullifies sophisticated as well as simple-minded modes of impairing the right guaranteed.” (internal quotation marks omitted)).
96. SB 7066 directly conflicts with the prohibition of the TwentyFourth Amendment. Count 3: Void for Vagueness, First and Fourteenth Amendment
97. Plaintiffs reallege the facts set forth in paragraphs 1-96, above.
98. The Due Process Clause of the Fourteenth Amendment to the U.S. Constitution requires that a law that imposes penalties give ordinary people reasonable notice of what conduct it prohibits and guard against arbitrary and discriminatory enforcement.
99. The applicability of the void for vagueness doctrine is heightened both when criminal sanctions are attached to a vague law and when the First Amendment is implicated.
100. Here, SB 7066 does both. It attaches threat of criminal sanction to the acts of registering to vote and voting, both of which fall squarely within “core political speech” given the utmost First Amendment protection.
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101. SB 7066 does not reasonably inform people with past convictions of which LFOs—imposed as a condition of supervision or imposed in the first instance as civil liens—are disqualifying and which are not. Nor does it, by its own admission, provide citizens with access to the records necessary to determine their eligibility. The reasonable person, like Plaintiffs Raysor and Sherrill, with a variety of outstanding LFOs will not be able to determine which LFOs are disqualifying and which are not.
102. The state voter registration form—as updated by SB 7066— will not provide citizens with meaningful information to determine their eligibility to vote.
103. Nonetheless, the state subjects voters who make an error in determining their eligibility to the threat of criminal prosecution.
104. This cocktail of confusion and obfuscation will undeniably chill the registration and voting of eligible Florida voters in violation of the First and Fourteenth Amendments. The ambiguous portions of the LFOs requirement—as they relate to LFOs imposed as conditions of supervision or as civil liens in the first instance—must be enjoined.
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Count 4: Violation of Due Process, Fourteenth Amendment 105. Plaintiffs reallege the facts set forth in paragraphs 1-104,
above. 106. A “claim alleging a denial of procedural due process requires
proof of three elements: (1) a deprivation of a constitutionally protected liberty or property interest; (2) state action; and (3) constitutionally inadequate process.” Grayden v. Rhodes, 345 F.3d 1225, 1232 (11th Cir. 2003).
107. Plaintiffs Raysor and Sherrill and the members of the Plaintiff Class and Subclass have a constitutionally protected right to vote upon completion of their sentence per Art. VI § 4 of the Florida Constitution and the Fourteenth Amendment to the U.S. Constitution.
108. SB 7066 denies otherwise eligible individuals the right to vote unless and until they pay off certain—but not all—legal financial obligations.
109. Further, SB 7066 fails to provide for adequate procedures to ensure that individuals who qualify for rights restoration are able to register and vote in Florida.
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110. Determining what process is due under the Fourteenth Amendment “is a flexible concept that varies with the particular circumstances of each case.” Id. Under Mathews v. Eldridge, the determination of what process is due rests on the balance between (1) the interest affected; (2) the risk of erroneous deprivation under the current procedures and the “probable value, if any, of additional or substitute procedural safeguards;” and (3) the state’s interest, including the “fiscal and administrative burdens” additional procedures would entail. 424 U.S. 319, 335 (1976).
111. Here, the constitutionally protected interest at stake is no less than the fundamental right to vote, and the risk of erroneous deprivation is high. SB 7066 conditions the restoration of voting rights on payment of unenumerated legal financial obligations, without providing for any process by which an otherwise eligible voter can (1) differentiate between LFOs that are disqualifying and those which are non-disqualifying, or (2) prioritize payment of disqualifying LFOs, such that they are not disenfranchised by their inability to pay off non-disqualifying LFOs.
112. The Florida criminal justice system imposes a dizzying array of fines, fees, and costs on persons with felony convictions, including
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processing fees, surcharges, penalties, and costs that are incurred after sentencing, but which must be paid off as a condition of supervision. Not only is SB 7066 itself internally inconsistent about which LFOs disqualifying, it fails to provide any procedures for otherwise eligible individuals to determine which of their LFOs are disqualifying, or to prioritize payment of those LFOs that prevent them from being able to vote.
113. In other words, even those individuals able to pay their disqualifying LFOs may be denied the right to vote because they are unable to determine which LFOs are disqualifying, or because they are not allowed to pay fully their disqualifying LFOs without also paying toward their non-disqualifying LFOs.
114. Further, SB 7066 fails to provide any procedures for how Defendant Lee shall identify registered voters or new registrants whose rights have not been restored due to disqualifying LFOs, including on what basis Defendant Lee shall determine that information related to an individual’s disqualifying LFOs is “credible and reliable.” S.B. 7066, 2019 Leg., Reg. Sess., § 24 (Fla. 2019).
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115. In creating the Restoration of Voting Rights Work Group, SB 7066 acknowledges that Defendant Lee does not yet know what data is necessary to determine an individuals’ eligibility to vote under SB 7066, and that no process yet exists for informing registered voters where they may find this information. Indeed, the Work Group’s report and recommendations for developing these data sources and procedures are not due until four months after the effective date for SB 7066. And the law makes no provision for when or if these recommendations, or any other such procedures, shall be adopted.
116. The lack of procedural safeguards creates a substantial likelihood that eligible voters will be denied the right to vote upon completion of their sentence based on outstanding but non-disqualifying LFOs.
117. In other words, SB 7066 creates a substantial likelihood that individuals entitled to rights restoration under the Florida Constitution will be erroneously deprived of their right to vote.
118. As stated above, the state has no cognizable interest in discriminating against otherwise eligible voters on the basis of wealth. Nor does the state have any interest in using the right to vote as an
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incentive for individuals to pay their LFOs. And even to the extent the state has an interest in ensuring that persons with past felony convictions pay in full their financial obligations associated with their convictions, there is simply no evidence to suggest that withholding voting rights until payment of LFOs is complete assists the state in achieving that end any more so than existing procedures unrelated to voting. Indeed, the fiscal and administrative burdens on the state of ensuring that eligible voters are not denied the right to vote under SB 7066 are substantially higher than they otherwise would be, absent the LFO requirements.
119. SB 7066 therefore violates due process because it creates a procedure for restoration of voting rights that is fundamentally unfair and gives rise to a substantial likelihood of erroneous deprivation of the right to vote, and which cannot be justified by any cognizable state interest.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully pray that this Court: (1) Certify the Plaintiff Class as defined in paragraph 22, and the
Plaintiff Subclass as defined in paragraph 23;
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(2) Issue a declaratory judgment that SB 7066, by its terms and as applied, violates the Fourteenth and Twenty-Fourth Amendments of the U.S. Constitution;
(3)Issue a declaratory judgment that the identified LFOs portions of SB 7066, by their terms and as applied, are void for vagueness in violation of the First and Fourteenth Amendments;
(4)Issue a declaratory judgment that SB 7066 fails to provide adequate safeguards against unlawful disenfranchisement in violation of the Fourteenth Amendment;
(5) Enjoin Defendant, her agents, employees, successors, and all those persons acting in concert or participation with them, from enforcing SB 7066 including: a. Enjoining Defendant from initiating a process for the rejection of any voter registration applications on the basis of outstanding LFOs; b. Enjoining Defendant from initiating a process for the removal of any voters from the voter registration rolls on the basis of outstanding LFOs;
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c. Requiring Defendant to instruct county election supervisors that outstanding LFOs do not disqualify any individual from voting rights restoration, and therefore not to remove or reject any registrant based on outstanding LFOs;
d. Requiring Defendant to inform those with past felony convictions that the failure to pay LFOs does not disqualify them from voting rights restoration under Amendment 4;
e. Requiring Defendant to instruct county election supervisors to restore Florida citizens to the voter registration rolls if they were removed solely on the basis of their outstanding LFOs;
(6) Award Plaintiffs their costs, expenses, and reasonable attorneys’ fees incurred in the prosecution of this action, as authorized by the Civil Rights Attorney’s Fees Awards Act of 1973, 42 U.S.C. § 1988(b); and
(7) Grant such other equitable and further relief as the Court deems just and proper.
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Respectfully submitted,
/s/ Chad W. Dunn Counsel for Plaintiff
Chad W. Dunn Florida Bar No. 0119137 1200 Brickell Avenue, Suite 1950 Miami, FL 33131 Telephone: (305) 783-2190 Facsimile: (305) 783-2268 chad@brazilanddunn.com
Danielle Lang (DC Bar No. 1500218)* Mark P. Gaber (DC Bar No. 988077)* Molly E. Danahy (DC Bar No. 1643411)* Blair Bowie (DC Bar No. 252776)* Jonathan Diaz (DC Bar No. 1613558)* 1101 14th Street NW, Suite 400 Washington, DC 20005 Telephone: (202) 736-2200 dlang@campaignlegal.org mgaber@campaignlegal.org mdanahy@campaignlegal.org bbowie@campaignlegal.org jdiaz@campaignlegal.org
*pro hac vice motion forthcoming
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 </s> CCaassee44:1:199-c-cvv-0-000330011-R-RHH-M-MJJFF DDooccuummeennt t1112-2 FFilieledd1100/2/299/1/199 PPaaggee11oof f5555
EXHIBIT B

CCaassee44:1:199-c-cvv-0-000330011-R-RHH-M-MJJFF DDooccuummeennt t1112-2 FFilieledd1100/2/299/1/199 PPaaggee22oof f5555
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION

BONNIE RAYSOR, et al.,

Plaintiffs,

v.

No. 4:19-cv-00301-MW-MJF

LAUREL M. LEE, in her official

capacity as Florida Secretary of Consolidated Case No. 4:19-cv-

State,

00300-MW-MJF

Defendant.

[Class Action]

SECOND AMENDED COMPLAINT In the matter of Raysor, et al. v. Lee, No. 4:19-cv-00301-MW-MJF, consolidated as Jones, et al. v. DeSantis, et al., No. 4:19-cv-00300-MWMJF, Plaintiff Bonnie Raysor, Plaintiff Diane Sherrill, and Plaintiff Lee Hoffman (“Plaintiffs”) bring this class action against Laurel M. Lee, in her official capacity as Secretary of State (“Defendant”), and allege the following:

CCaassee44:1:199-c-cvv-0-000330011-R-RHH-M-MJJFF DDooccuummeennt t1112-2 FFilieledd1100/2/299/1/199 PPaaggee33oof f5555
INTRODUCTION 1. On November 6, 2018, almost two-thirds of Floridians voted for Amendment 4 to restore the right to vote to individuals with past felony convictions. Except for individuals convicted of murder or a felony sexual offense, Amendment 4 re-enfranchised otherwise eligible Florida citizens automatically “upon completion of all terms of sentence including parole or probation.” Fla. Const. art. VI, § 4. 2. On June 28, 2019, Governor Ron DeSantis signed Senate Bill 7066 (“SB 7066”), which purports to “implement” Amendment 4, in part by seeking to define “all terms of sentence” to include the payment of any restitution, fines, and fees (“legal financial obligations” or “LFOs”) ordered by the court “as a part of the sentence or that are ordered by the court as a condition of any form of supervision.” S.B. 7066, 2019 Leg., Reg. Sess., § 25 (Fla. 2019) (emphasis added). 3. Amendment 4 went into effect on January 8, 2019. SB 7066 went into effect on July 1, 2019. 4. The natural and foreseeable effect of this “implementing” law will be to drastically reduce the number of people with past convictions who regain the right to vote under Amendment 4; permanently
2

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disenfranchise many minor offenders; and dole out the right to vote on the basis of wealth.
5. On its face, SB 7066 discriminates on the basis of wealth. People with the financial means to satisfy their LFOs either during or at the conclusion of their sentence of incarceration or supervision will have their rights automatically restored. But, people whose socioeconomic status prevents them from satisfying their LFOs concurrent with the termination of their incarceration or supervision will be prohibited from voting until they are able to pay their outstanding balance.
6. As a result, whether otherwise eligible individuals will have the right to vote upon completion of their sentence of incarceration and supervision depends entirely on their ability to pay for it. Indeed, two otherwise eligible individuals with the same conviction, who received the same terms of probation and parole, and the same LFOs, would be treated differently under SB 7066 based solely on whether they have the means to satisfy their LFOs.
7. In short, SB 7066’s wealth-based discrimination not only violates the Fourteenth Amendment, but also the Twenty-Fourth Amendment by functioning as a modern-day poll tax.
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8. Further, SB 7066 is vague, both as a matter of law and fact. For example, it is internally contradictory with respect to whether fees or costs incurred after sentencing may nonetheless disenfranchise a person. Although the statute states that individuals must pay all LFOs imposed as a condition of supervision, it also states that individuals must pay only the amount specifically ordered by the court at sentencing. Yet, standard conditions of probation, which are imposed at sentencing, often require individuals to pay off certain debts that are only incurred after sentencing. Likewise, there is no available definition of what constitutes “the sentencing document” despite SB 7066’s reliance on “the sentencing document” as a cabining mechanism for the LFO requirement. Thus, SB 7066 will confuse potential voters and chill core First Amendment speech.
9. Finally, under SB 7066, it will be extraordinarily difficult for individuals with past convictions to determine their eligibility to vote and the risk of erroneous deprivation of the right to vote is high. Persons with both disqualifying and non-disqualifying LFOs will struggle to disaggregate those outstanding debts. And, the updated state voter
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registration form provided for in SB 7066 fails to inform people with convictions of the new eligibility requirements the law creates.
10. As a result of SB 7066, people with convictions will often be left in the dark and find themselves in need of a lawyer just to find out their eligibility to vote. Individuals who register in error risk felony prosecution and thus the unique threat of recidivism. Such ambiguity surrounding access to the right to vote violates procedural due process and cannot survive scrutiny under the First and Fourteenth Amendments.
JURISDICTION AND VENUE 11. This action is brought under the United States Constitution. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. 12. This Court has personal jurisdiction over Defendant Lee, who is an appointed state official and a resident of Florida. 13. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b). Among other things, the office of Defendant Lee is located in this District. 14. This Court has authority to issue declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201 and 2202.
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PARTIES 15. Plaintiff Bonnie Raysor (née Bonnie Ryan) is fifty-eight years old and has resided in Florida since she was seventeen. She is a United States citizen and currently resides in Boynton Beach, Florida. 16. After becoming addicted to opioids, Plaintiff Raysor was charged in 2009 and convicted in October 2010 of six felony and two misdemeanor drug-related charges. Since she was unable to afford an attorney, Plaintiff Raysor was assigned a public defender for these charges. She was sentenced to one year, six months, and five days in prison. Plaintiff Raysor was released from prison on March 29, 2011, with no parole or probation. She has no other criminal convictions. 17. Plaintiff Raysor works as an office manager and makes thirteen dollars per hour. She has a mortgage and a car payment and is responsible for the utilities, groceries, and other basic needs for herself and her nineteen-year-old daughter, who is a full-time student. She also has approximately $48,000 in student loan debt. 18. Voting is important to Plaintiff Raysor. As a Floridian, she knows how important a single vote can be in a close election. Voting gives
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her the opportunity to make a difference, and to speak her mind politically. It gives her the opportunity to make her voice heard.
19. When Amendment 4 passed, Plaintiff Raysor was thrilled to regain her right to vote. She proactively reached out for help to understand her rights and to ensure that she would be able to register to vote despite her past felony conviction.
20. Under SB 7066, however, Plaintiff Raysor is unable to register and vote in Florida. She has $4,260 in outstanding LFOs related to her convictions.
21. Upon information and belief, this sum includes LFOs associated with her two misdemeanor convictions, as well as her felony convictions. Upon information and belief, when Plaintiff Raysor was convicted, all LFOs levied upon her were in the form of a civil lien. These LFOs include the following: court costs, cost of prosecution, crime stoppers fund, cost of investigation, drug trust fund, public defender application fee, and public defender fee. Upon information and belief, none of Plaintiff Raysor’s outstanding LFOs are criminal fines or restitution.
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22. Based on her current income and ability to pay, Plaintiff Raysor is on a payment plan with the court, where she pays $30 per month towards her outstanding balance. Under this payment plan, Plaintiff Raysor will not pay off her LFOs until 2031. Thus, under SB 7066, she will not regain her right to vote for another twelve years, at which time she will be seventy years old.
23. Plaintiff Diane Sherrill is fifty-eight years old and is a Florida resident. She is a United States citizen and currently resides in St. Petersburg, Florida.
24. As a result of her struggle with addiction, Plaintiff Sherrill was convicted of one count of possession of crack cocaine in the third degree, two counts of possession of cocaine in the third degree, and one count of prostitution in the third degree between 1999 and 2005. For each of these charges, Plaintiff Sherrill was determined to be indigent and was assigned a public defender.
25. Plaintiff Sherrill has been drug-free and sober for over a decade. She has not had any criminal convictions since 2005. She has two adult children who live in the area and one grandchild. She is an active member of her church, Cornerstone Community Church.
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26. Plaintiff Sherrill largely lives on a fixed Supplemental Security Income (SSI) of approximately $770 per month. She lives in public housing and receives approximately $70 per month in Supplemental Nutrition Assistance Program (SNAP) benefits, otherwise known as food stamps.
27. Plaintiff Sherrill lives by herself and is responsible for her monthly rent of $200, her utility bills (including electric, internet, and phone), groceries, car insurance and gas, and any other household expenses.
28. Plaintiff Sherrill lost her driver’s license as a result of her convictions and unpaid LFOs. After ten years, she was recently able to reinstate her driver’s license in order to help care for her first grandchild.
29. Voting is important to Plaintiff Sherrill. As a Floridian, she knows how important a single vote can be in a close election. Voting gives her the opportunity to make a difference, and to speak her mind politically. It gives her the opportunity to make her voice heard.
30. A few years ago, Plaintiff Sherrill’s church set up a table for voter registration of congregants. Plaintiff Sherrill inquired about whether she could regain her voting rights. The organizers referred her
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to the Pinellas County Supervisor of Elections, Deborah Clark. Plaintiff Sherrill wrote to Supervisor Clark about restoring her voting rights and received an application in the mail in response.
31. Plaintiff Sherrill wanted to apply to restore her voting rights but could not understand the confusing application she was sent or the process she was supposed to follow.
32. After the passage of Amendment 4, Plaintiff Sherrill was excited to register to vote and join her political community in voting in the next election. Since her convictions are well behind her, she believed she would be eligible to vote under Amendment 4.
33. Under SB 7066, however, Plaintiff Sherrill will not be eligible to register to vote and vote in the next election.
34. Plaintiff Sherrill owes $2,279 in outstanding LFOs related to her convictions. These LFOs include, inter alia, the following: indigent criminal defense fees, fines, investigative costs, and court costs. Upon information and belief, these LFOs also include penalties for nonpayment. Upon information and belief, all of these outstanding LFOs were converted to civil liens and sent to a collections agency. Plaintiff Sherrill does not know how to pay only those LFOs imposed at her
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sentencing without also paying other late fees and penalties imposed in the collections process.
35. Plaintiff Sherrill is living on a financial razor’s edge. She is unable to afford to pay these LFOs at this time and cannot foresee a time when she will ever be able to pay these LFOs in full. As a result, SB 7066 may amount to permanent disenfranchisement for Plaintiff Sherrill.
36. Plaintiff Lee Hoffman is sixty years old and a Florida resident. He is a United States citizen and currently resides in Plant City, Florida.
37. Plaintiff Hoffman is a disabled U.S. military veteran. In 1976, he enlisted in the U.S. Navy. After being administratively discharged for medical reasons, Plaintiff Hoffman moved to Florida in 1978 to help care for his mother, who was seriously ill.
38. Plaintiff Hoffman has six previous nonviolent felony convictions. He has a burglary conviction in Pinellas County from 1978, and convictions in Hillsborough County for criminal mischief in 1995, grand theft in 2001, and driving without a license and possession of cocaine in 2006. Plaintiff Hoffman also has a robbery conviction in California from 1985.
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39. Since 2006, Plaintiff Hoffman has had no felony convictions. He completed probation in 2008. He now spends his time as a minister and advocate for the homeless, and was recently appointed to the Board of Directors of Bay Area Legal Services.
40. Plaintiff Hoffman’s primary source of income is a monthly disability benefit in the amount of $907. He also works part time, three to four months each year, as a federal contractor with National Telecommunications Institute, working with the Internal Revenue Service. Plaintiff Hoffman earns approximately $1,140 per month during the months he spends working as a contractor.
41. Voting is important to Plaintiff Hoffman. As a Floridian, he knows how important a single vote can be in a close election. Voting gives him the opportunity to make a difference, and to speak his mind politically. It gives him the opportunity to make his voice heard.
42. When Amendment 4 passed in November 2018, Plaintiff Hoffman felt relieved and empowered. He was excited to finally have the opportunity to register and participate in the democratic process. He registered to vote in Hillsborough County on January 17, 2019. As of October 29, 2019, the State of Florida Voter Information Lookup tool
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maintained by the Florida Department of State lists Plaintiff Hoffman as an Active voter.
43. Shortly thereafter, Plaintiff Hoffman learned about SB 7066. Plaintiff Hoffman saw SB 7066 as a betrayal by lawmakers and an attempt to pull the rug out from under the thousands of formerly incarcerated Floridians who had registered to vote in the wake of Amendment 4.
44. Until he read about SB 7066, Plaintiff Hoffman did not know that he still owed LFOs associated with his felony convictions. Upon learning about SB 7066, he contacted the relevant county authorities to determine whether he had any outstanding LFOs. Plaintiff Hoffman believes he owes a total of $1,772.13 in LFOs, $469.88 of which are associated with his felony convictions.
45. Plaintiff Hoffman is not aware of any means by which he can prioritize payment of his felony LFOs to reduce the amount of time he is disenfranchised by SB 7066. Nor does he know whether the $469.88 associated with his felony convictions represents LFOs ordered at the time of his conviction, or if it incorporates amounts accrued at a later
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date. Upon information and belief, none of Plaintiff Hoffman’s outstanding LFOs are criminal fines or restitution.
46. If he was permitted to prioritize his felony LFOs, Plaintiff Hoffman estimates that he may be able to repay the outstanding balance associated with his felony convictions in approximately one to two years if he were to dedicate a significant portion of his supplemental income to paying off his LFOs—assuming that he does not have any unexpected medical or other emergency expenses. If he is unable to prioritize his LFOs, it would take over three times as long for him to pay his full outstanding debt. In any event, he is unable to pay off his felony LFOs prior to the start of the 2020 election cycle, and thus will be denied the right to vote under SB 7066.
47. Plaintiffs Raysor, Sherrill, and Hoffman seek to represent a class for Count 2 (Twenty-Fourth Amendment) defined as: all persons otherwise eligible to vote in Florida who are denied the right to vote because they have outstanding LFOs.
48. Plaintiffs Raysor, Sherrill, and Hoffman seek to represent a subclass for Count 1 (Fourteenth Amendment) defined as: all persons
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otherwise eligible to vote in Florida who are denied the right to vote solely because they are genuinely unable to pay off their outstanding LFOs.
49. Defendant Laurel M. Lee is the Secretary of State of Florida (“the Secretary”) and is sued in her official capacity. The Secretary is the head of the Department of State (“the Department”) and the chief election officer of the state. As chief election officer, the Secretary is responsible for obtaining and maintaining “uniformity in the interpretation and implementation of the election laws,” and providing “uniform standards for the proper and equitable interpretation and implementation” of such laws. Fla. Stat. § 97.012(1)-(2). The Secretary is also responsible for administering the statewide voter registration system. Id. § 97.012(11).
50. Further, under SB 7066, the Department is responsible for identifying registered voters who have been convicted of a felony and whose voting rights have not been restored, and for initiating the process for removing potentially ineligible individuals from the voter rolls. See S.B. 7066, supra, §§ 24, 25, amending Fla. Stat. § 98.075(5). The Department is similarly responsible for obtaining and reviewing information on new registrants’ eligibility for rights restoration and for
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initiating the process for rejecting applications from potentially ineligible voters. See id. § 25, enacting Fla. Stat. § 98.0751(3)(a).
FACTS 51. The Florida Constitution prohibits individuals with felony convictions from voting unless their voting rights have been restored. Fla. Const. art. VI, § 4. As of January 8, 2019, except for persons convicted of murder or felony sexual offense, voting rights are restored automatically “upon completion of all terms of sentence including parole and probation.” Id. Persons convicted of murder or felony sexual offense are permanently disenfranchised but may apply to the Board of Executive Clemency to have their voting rights restored on a case-by-case basis. See S.B. 7066, supra, § 25, enacting Fla. Stat. §98.0751(1). SB 7066 52. On June 28, 2019, Governor DeSantis signed SB 7066 into law. SB 7066 purports to implement the constitutional provision restoring voting rights to individuals with felony convictions, and states: A person who has been disqualified from voting based on a felony conviction for an offense other than murder or a felony sexual offense must have such disqualification terminated and his or her voting rights restored pursuant to s. 4, Art. VI of the State Constitution upon the completion of all terms of his or her sentence, including parole or probation.
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S.B. 7066, supra, § 25, enacting Fla. Stat. § 98.0751(1). 53. But SB 7066 does not merely implement Amendment 4.
Rather, it severely restricts access to the right to vote. SB 7066 defines “completion of all terms of sentence” to include not only any term of imprisonment, probation, community control or supervision (collectively, “carceral supervision”), but also the full payment of any LFOs, including restitution, fines and fees “ordered by the court as a part of the sentence or that are ordered by the court as a condition of any form of supervision,” even if those obligations have been converted to civil liens. Id., enacting Fla. Stat. § 98.0751(2).
54. Governor DeSantis’ signing statement accompanying SB 7066 does not address these financial barriers to voting but does state his personal opinion that Florida voters made a “mistake” by restoring “voting rights to violent felons.” By requiring the payment of all LFOs— many of which people with past convictions will never be able to pay— Governor DeSantis has ratified a law that will undermine Amendment 4, which he deems a “mistake.”
55. Florida does not require courts to consider ability to pay at the time LFOs are imposed. When seeking to enforce compliance with a legal
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financial obligation, however, courts may inquire into ability to pay. See, e.g., Fla. Stat. § 938.30. Based on the individual’s ability to pay, a court seeking to enforce a legal financial obligation may order the individual to comply with a payment schedule; convert the obligation to a judgment or civil lien against the individual’s property; or may, in limited instances, convert outstanding fines and court costs “into a court-ordered obligation to perform community service.” Id. Upon information and belief, many mandatory LFOs cannot be converted to community service.
56. SB 7066 defines the “completion” of LFOs to include: actual payment of the obligation in full; termination of the obligation by the court, with the approval of the payee; or completion of all community service hours where the court has converted the financial obligation to community service. SB 7066, supra, § 25, enacting Fla. Stat. § 98.0751(5)(e). Finally, SB 7066 states that “[t]he requirement to pay any financial obligation specified in this paragraph is not deemed completed upon conversion to a civil lien.” Id. This language, however, does not directly address the circumstance of Plaintiff Raysor, whose LFOs were imposed as civil liens as an initial matter.
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57. While SB 7066 acknowledges that LFOs can be modified by the sentencing court, it does not require any modifications to LFOs, even in cases where indigence or inability to pay is the only barrier to voting rights restoration.
THE IMPACT OF SB 7066 58. Across all jurisdictions in Florida, over $700 million in fines, court costs, and other monetary penalties were assessed in 2018 alone. In addition, over $481 million in fees, service charges, and costs were assessed during 2018. These figures do not include the enormous sum of fines and fees that were assessed prior to 2018 but are still outstanding. 59. Criminal Circuit Courts in Florida assessed over $275 million in fines and fees during 2018. Of that amount, nearly thirty percent is categorized as at risk for collection due to indigence or reduction to a civil judgment or lien. In several Circuits, the amount at risk due to indigence is over forty percent. Criminal Circuit Courts in Florida converted only about $1.2 million in court fines to community service during 2018. 60. The Department of Corrections reported just under $20 million dollars in revenue from cost of supervision fees in fiscal year 2017-
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2018, nearly $50 million dollars in revenue from restitution, fines, and court costs, and over $20 million dollars in court ordered fees.1
61. Individuals with past felony convictions are more likely to have lower incomes than other registered voters, and to live in neighborhoods with higher unemployment than other Florida voters.2
62. On information and belief, many individuals with fines, fees, and restitution ordered as part of their sentence or as a condition of supervision related to a felony conviction also have other LFOs assessed through the criminal justice system. These may include LFOs associated with felony convictions but not ordered at the time of sentence or as a condition of supervision. In other instances, LFOs may be related to misdemeanor or civil judgments, rather than a felony conviction. On information and belief, these LFOs are not disaggregated by the County or the court when converted to a civil judgment, lien, community service, or incorporated into a payment plan.
1 Fla. Dep’t of Corr., 2017-2018 Annual Report 6, http://www.dc.state.fl.us/pub/annual/1718/FDC_AR2017-18.pdf.
2 See Kevin Morris, Thwarting Amendment 4, BRENNAN CTR. FOR JUSTICE, https://www.brennancenter.org/sites/default/files/analysis/2019_05_FloridaAmendment_FI NAL-3.pdf.
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63. For example, upon information and belief, Plaintiff Raysor has fines and fees associated with her misdemeanor convictions, which are a part of the $4,260 she still owes. Based on the records available to Plaintiff Raysor, she cannot ascertain how much of her $30 monthly payments go towards her felony versus misdemeanor LFOs. Nor does she know if she may prioritize paying the LFOs associated with her felony convictions, which prevent her from voting.
64. Similarly, Plaintiff Raysor does not know how the outstanding LFOs associated with her felony convictions break down, such that she cannot determine which of these LFOs fall within the scope of SB 7066, and which fall outside the scope of SB 7066. Nor does she know whether the fact that her LFOs were initially imposed as a civil lien—rather than converted—affects their status under SB 7066.
65. Likewise, Plaintiff Sherrill believes that some of her outstanding LFOs are penalties for nonpayment that should not bar her from voting under SB 7066. But since the full balance has been sent to a collections agency, she does not know if or how she may prioritize paying the LFOs that disqualify her from voting.
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66. Plaintiff Sherrill does not know if there are additional fines, fees, and costs within her outstanding balance that fall outside the scope of SB 7066.
67. Finally, although only $469.88 of Plaintiff Hoffman’s $1,772.13 in LFOs are related to his felony convictions, he does not know how much of that amount was imposed as part of his sentence, or whether any of it encompasses penalties or other costs incurred after sentencing. Nor does Plaintiff Hoffman know how he can prioritize payment of those LFOs related to his felony convictions, to ensure he is not denied the right to vote on account of non-disqualifying LFOs.
68. For individuals whose LFOs have been converted to community service, a civil judgment, or lien, satisfaction of the obligation is often determined by a private third-party. Private, non-profit, community, or charitable organizations may all serve as community service agencies for the purpose of court-ordered community service. See Fla. Stat. § 318.18. The responsibility for monitoring and recording community service hours—defined as “uncompensated labor for a community service agency”—falls to these entities. Id. Similarly, a county may pursue the collection of outstanding LFOs through private
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attorneys and collection agencies. Not only does this place the obligation in the hands of a third party (which then has substantial rights to negotiate the debt), but Florida allows those parties to impose a surcharge of up to forty percent of the balance owed as a collection fee.
69. For example, at times when she was facing financial hardship, Plaintiff Raysor has fallen behind on paying her LFOs. As a result, in 2014, her debts were placed with a collection agency, Penn Credit, which imposed a forty percent surcharge on her balance. Plaintiff Raysor also lost her driver’s license as a consequence of her overdue LFOs. Ultimately, she was able to petition the court to remove the surcharge, place her back on a payment plan, and reinstate her driver’s license. She currently pays $30 per month toward her LFO balance.
70. Upon information and belief, Plaintiff Sherrill’s outstanding balance includes several substantial fees imposed as penalties for transfer to a collections agency.
71. Fines, costs, and fees that may be assessed at the time of sentencing include, but are not limited to: mandatory assessments for the Court Cost Clearing Trust Fund, the Crimes Compensation Trust Fund, the Operating Trust Fund of the Department of Law Enforcement, a
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mandatory $225 fine for a felony conviction, mandatory fines assessed based on the specific felony conviction or convictions, mandatory costs authorized by local governmental entities, discretionary costs related to the specific type of case or conviction, and additional surcharges on these costs. See generally ch. 983, Fla. Stat.
72. In addition, conditions of carceral supervision imposed at sentencing may include, but are not limited to: payment of debts due to a detention center for medical care, treatment, hospitalization, or transportation; application fees and attorneys’ costs and fees if the individual had a public defender appointed; and reimbursement for costs of drawing and transmitting blood or DNA samples to the Department of Law Enforcement. See, e.g., Fla. Stat. § 948.03.
73. In other words, under SB 7066, it appears an individual’s right to vote may be conditioned on the payment of outstanding medical debt that accrues after sentencing.
74. Thus, the requirement in SB 7066 that an individual pay off all LFOs “ordered by the court as a condition of any form of supervision,” SB 7066, § 25, enacting Fla. Stat. § 98.0751(2)(a)(5)(b), is inconsistent with later language stating that payment of LFOs “accrue[d] after the
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date the obligation is ordered as a part of the sentence” is not required to be eligible for rights restoration, id., enacting Fla. Stat. § 98.0751(2)(a)(5)(c). This internally incoherent language will undoubtedly leave Florida citizens in the dark about which LFOs are disqualifying and which LFOs are not disqualifying.
75. Upon information and belief, this confusion will only be compounded by the lack of easy access to records disaggregating the LFOs incurred by a person with a past conviction. Plaintiffs Raysor, Sherrill, and Hoffman even with assistance of counsel, have been unable to ascertain this information with respect to their own outstanding debts.
76. SB 7066 itself recognizes that Florida citizens are not likely to be able to assess their own eligibility to vote under this law. It provides for the creation of a “Restoration of Voting Rights Work Group.” SB 7066, §33. The work group is charged with developing recommendations for the Legislature related to “[t]he process of informing a registered voter of the entity or entities that are custodians of the relevant data necessary for verifying . . . eligibility for restoration of voting rights.” Id.
77. Yet, although SB 7066 became effective on July 1, 2019, these recommendations are not due to the Legislature for consideration until
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November 1, 2019. Id. In other words, the Legislature passed SB 7066 fully aware that eligible Florida citizens will struggle or be unable to ascertain their eligibility to vote.
78. Nonetheless, since July 1, 2019, Florida citizens risk criminal sanction if they register to vote while their voting rights have not, in fact, been restored under SB 7066’s vague and ambiguous language—despite the fact that the updated state voter registration form required by SB 7066 will not mention the LFO requirement at all.
79. Further, between January and March 2019 alone, more than 2,000 individuals with past felony convictions registered to vote in Florida.3 Indeed, upon information and belief, as many as 8,000 to 15,000 people with past felony convictions have registered to vote since the effective date of Amendment 4. Upon information and belief, many of these individuals, like Plaintiff Hoffman, have outstanding LFOs.
80. Defendant Lee is responsible for ensuring compliance with all state election laws. Upon information and belief, Defendant Lee took no action during the period between January 8, 2019 and July 1, 2019 to prohibit individuals with past felony convictions who completed their
3 See Morris, supra note 2. 26

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sentence but had outstanding LFOs from registering to vote. Defendant Lee did not instruct registrars to deny the applications of individuals with past felony convictions on the basis of outstanding LFOs or remove individuals with past felony convictions from the voter rolls on the basis of outstanding LFOs.
81. In other words, prior to the enactment of SB 7066, Amendment 4’s implementation included no requirement that individuals with past convictions pay all outstanding LFOs prior to registering to vote. Defendant Lee did not interpret or implement Amendment 4 as denying rights registration to otherwise eligible individuals on the basis of outstanding LFOs. Nor did Defendant Lee recognize or seek to enforce a duty on the part of any county supervisor to deny rights registration to otherwise eligible individuals on the basis of outstanding LFOs.
82. SB 7066 itself recognizes that the state of Florida cannot retroactively punish otherwise eligible individuals with outstanding LFOs who registered to vote during the period between January 8, 2019 and July 1, 2019, on the basis that such individuals made a false affirmation by indicating that their voting rights had been restored. See
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S.B. 7066, 2019 Leg., Reg. Sess., § 26 (Fla. 2019) (enacting Fla. Stat. § 104.011(3)).
83. SB 7066 provides no such safe harbor, however, for individuals with outstanding LFOs who registered during the interim period and later vote in an election after July 1, 2019. Yet, like Plaintiff Hoffman, many such individuals remain actively registered despite the fact that SB 7066 is now in effect. SB 7066 placed every such individual in jeopardy of criminal prosecution if they subsequently vote in an election in reliance on their active registration status.
84. The mechanics of SB 7066 are inordinately complicated for affected citizens, and its scope is vague. Its consequences, however, are clear. Under SB 7066, Floridians with past felony convictions who have completed their term of carceral supervision, including incarceration, probation, and parole, and who either do not have LFOs or have paid them off, will automatically have their voting rights restored. Individuals who have outstanding LFOs are denied the right to vote unless or until they are able to satisfy their financial obligations. An individual who is unable to pay off her outstanding LFOs due to her socioeconomic status is permanently denied the right to vote.
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85. In short, SB 7066 conditions the restoration of voting rights entirely upon an individual’s financial resources, in violation of the Fourteenth and Twenty-Fourth Amendments.
EXECUTIVE CLEMENCY 86. Under SB 7066, individuals who are disenfranchised solely because of their outstanding LFOs may apply for executive clemency, subject to the “unfettered discretion” of the Florida Governor. See SB 7066, § 25, enacting Fla. Stat. § 98.0751(1); Fla. R. Exec. Clemency 4. This “unfettered discretion” means the Governor has the authority “to deny clemency at any time, for any reason.” Fla. R. Exec. Clemency 4. 87. Thus, individuals able to pay their LFOs can register and vote automatically upon completing carceral supervision, while those unable to pay are disenfranchised indefinitely, subject to the whim of the Governor. 88. Applying for executive clemency is extremely burdensome. An individual with outstanding LFOs must wait seven years after the completion of carceral supervision to apply for a restoration of civil
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rights.4 Fla. R. Exec. Clemency 5. If denied, an applicant must wait for at least two years to reapply. Fla. R. Exec. Clemency 14. Applications must contain certified copies of the charging document, judgment, and sentence for each felony conviction. Fla. R. Exec. Clemency 6(B). After applying, the individual is subject to an investigation by the Florida Commission on Offender Review, and her application will be decided at a hearing in Tallahassee.5 Fla. R. Exec. Clemency 8(B). The applicant must give ten days’ notice to the Board if she or any other person intends to speak at the hearing on her behalf. Fla. R. Exec. Clemency 12(B). The final determination of any application is subject to the “unfettered discretion” of the Florida Governor. Fla. R. Exec. Clemency 4.
89. Thus, even after completing the burdensome application process, individuals who lack the means to pay their LFOs will not be allowed to vote “unless Florida’s Governor approves restoration of this fundamental right” or a complete remission of their LFOs. Hand v. Scott, 285 F. Supp. 3d 1289, 1292 (N.D. Fla. 2018). Meanwhile, similarly
4 Individuals with no outstanding restitution may be eligible to apply for rights restoration after five years, depending on their crime of conviction. See Fla. R. Exec. Clemency 9.
5 Prior to January 8, 2019, all Floridians with past felony convictions were permanently disenfranchised unless they applied for and obtained a restoration of civil rights from the Governor and the Board of Clemency.
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situated individuals—including those convicted of the same crimes—are granted automatic restoration of their voting rights based solely on their ability to pay their LFOs.
90. This process necessarily discriminates on the basis of wealth. Rights restoration is guaranteed to individuals of financial means, while the indigent must not only suffer the indignity of having to beg for their rights to be restored, but they must do so on blind faith, without any notice of the conditions, factors, or whims that will determine if their application is successful.
NATIONAL VOTER REGISTRATION ACT 91. SB 7066 also amended the uniform statewide voter registration form and voter registration system in a manner that violates the National Voter Registration Act (“NVRA”). 92. First, the NVRA requires that a state’s voter registration form inform voters of eligibility requirements, 52 U.S.C. § 20507(a)(5), and to “specif[y] each eligibility requirement,” id. § 20508(b)(2)(A). 93. However, the form mandated by SB 7066 does not specify voter eligibility requirements. Specifically, it does not state the eligibility requirements—including payment of certain LFOs—for people with past
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convictions pursuant to Amendment 4 and SB 7066. Nor does it specify the voter eligibility requirements for people with out-of-state convictions. Nor does it offer an option for such applicants to indicate that their voting rights were restored by another state.
94. Second, the NVRA only permits a state to require the minimum amount of information necessary to prevent duplicate registration and to enable election officials to assess eligibility of the applicant in processing voter registration applications as part of a State motor vehicle driver’s license. 52 U.S.C. § 20504(c)(2)(B).
95. The form mandated by SB 7066 requires voters to identify if they have a prior felony conviction, and if so whether they have had their voting rights restored through Executive Clemency or Amendment 4.
96. These questions exceed the minimum amount of information needed for the State to avoid duplicate registrations and to assess eligibility. The form could require affirmation of eligibility without requiring the applicant to reveal information about their prior felony convictions. Indeed, voter registration application forms are processed identically regardless of which box is checked with respect to felony convictions.
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97. Finally, the NVRA requires that “[a]ny State program to protect the integrity of the electoral process by ensuring the maintenance of an accurate voter registration roll for elections for Federal office . . . shall be uniform [and] nondiscriminatory.” Id. § 20507(b)(1).
98. Yet, the lack of any meaningful and uniform process for determining eligibility pursuant to SB 7066’s LFO requirement coupled with the state’s decentralized, inaccessible, inconsistent, and incomplete financial obligations records all but ensures an arbitrary, non-uniform, and discriminatory list maintenance process.
CLASS ALLEGATIONS 99. Upon information and belief, at least 500,000 individuals with past felony convictions who are otherwise eligible under Amendment 4 have outstanding LFOs and are therefore not qualified for voting rights restoration under SB 7066, just like Plaintiffs. Thousands of currently registered voters with outstanding LFOs risk removal from the voter registration rolls, or, to the extent they remain on the rolls, criminal prosecution if they vote in reliance on their active registration. Countless otherwise eligible individuals will be prevented from exercising their
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right to vote in the future because they are unable to pay their LFOs due to their socioeconomic status.
100. Pursuant to Federal Rule of Civil Procedure 23, Plaintiffs Raysor, Sherrill, and Hoffman bring this action on behalf of themselves and all other similarly situated persons. Plaintiffs Raysor, Sherrill, and Hoffman do not seek claims for compensatory relief. Instead, Plaintiffs seek only declaratory and injunctive relief broadly applicable to members of the Plaintiff Class and the Plaintiff Subclass, as defined above. The requirements of Rule 23, and in particular Rule 23(b)(2), are met with respect to the Plaintiff Class and Plaintiff Subclass as defined in paragraphs 47 and 48.
101. The members of the Plaintiff Class and Plaintiff Subclass are so numerous that joinder is impracticable. While the exact number of members in the Plaintiff Class and Plaintiff Subclass are not publicly available, upon information and belief, the total number of otherwise eligible citizens of Florida disenfranchised due to some combination of outstanding fines, fees, or restitution exceeds 500,000. The Plaintiff Class and Plaintiff Subclass are ascertainable through Defendant’s records and records kept by the Florida State Department of Corrections. Indeed,
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under SB 7066, it is Defendant’s responsibility to identify registrants who are not eligible for rights restoration because they have outstanding LFOs. Moreover, class and subclass members will be ascertainable through any remedial mechanism resulting from an injunction issued by the Court.
102. Common questions of law and fact predominate over questions affecting only individual class and subclass members with respect to allegations in this complaint. Those questions include, but are not limited to, the following:
a. Whether SB 7066 discriminates on the basis of wealth in violation of the Fourteenth Amendment.
b. Whether SB 7066 constitutes a poll tax in violation of the Twenty-Fourth Amendment.
103. Plaintiffs’ claims are typical of the Plaintiff Class and Plaintiff Subclass as defined in paragraphs 47 and 48. Plaintiffs Raysor, Sherrill, and Hoffman are not aware of any conflict between their interests and those of the Plaintiff Class and Plaintiff Subclass they seek to represent.
104. Plaintiffs Raysor, Sherrill, and Hoffman can fairly and adequately represent the interests of the Plaintiff Class and Plaintiff
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Subclass because they are similarly situated with class members. Plaintiffs have retained counsel experienced in class-action and voting rights litigation to represent them and the Plaintiff Class and Plaintiff Subclass for the purpose of this litigation.
105. Defendants have acted, or refused to act, on grounds generally applicable to the entire class, and final injunctive relief and corresponding declaratory relief are appropriate respecting the class as a whole.
CLAIMS Count 1: Wealth-Based Disenfranchisement,
Fourteenth Amendment 106. Plaintiffs reallege the facts set forth in paragraphs 1-105 above. 107. Wealth “is not germane to one’s ability to participate intelligently in the electoral process.” Harper v. Va. State Bd. of Elections, 383 U.S. 663, 668 (1966). 108. A state “violates the Equal Protection Clause of the Fourteenth Amendment whenever it makes the affluence of the voter or payment of any fee an electoral standard.” Id. at 666; see also Johnson v. Governor of Fla., 405 F.3d 1214, 1216 n.1 (11th Cir. 2005) (“Access to the
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franchise cannot be made to depend on an individual’s financial resources.”).
109. By requiring an otherwise eligible Florida citizen to pay all LFOs before she is eligible to restore her right to vote, SB 7066 impermissibly makes financial payments an electoral standard.
110. By requiring an otherwise eligible Florida citizen to pay all LFOs before she is eligible to restore her right to vote, SB 7066 impermissibly makes the affluence of an otherwise eligible voter an electoral standard.
111. It is well established that “a citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction.” Dunn v. Blumstein, 405 U.S. 330, 336 (1972). Thus, “[h]aving once granted the right to vote on equal terms, the State may not by later arbitrary and disparate treatment, value one person’s vote over that of another.” Bush v. Gore, 531 U.S. 98, 104–5 (2000). Rather, “once the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment.” Harper, 383 U.S. at 665.
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112. Plaintiffs Raysor, Sherrill, and Hoffman, and members of the Plaintiff Subclass are unable to afford to pay their remaining LFOs, and, as of July 1, 2019, this is the only reason they are not eligible to register and vote in the state of Florida. In the case of Plaintiff Hoffman, SB 7066 will lead to his removal from the voter rolls and prohibits him from voting even while he remains on the voter rolls.
113. The mere possibility that LFOs could, in some cases, be modified—left to the discretion of individual judges—does nothing to alleviate this unconstitutional barrier to voting for Plaintiffs and other members of the Plaintiff Subclass. Nor does the possibility that the Governor could, if he felt so moved, exercise his discretion to restore the right to vote to individuals with outstanding LFOs on a case-by-case basis. Indeed, Representative James Grant noted in enacting SB 7066 that discretionary rights restoration is “a recipe for rampant discrimination.”6 Moreover, it is well established that imposing additional requirements on voters who cannot pay is no more
6 Tyler Kendall, Felons in Florida Won Back Their Right to Vote. Now a New Bill Might Limit Who Can Cast a Ballot, CBS News (May 23, 2019), https://www.cbsnews.com/news/florida-felons-won-back-right-to-vote-new-bill-might-limitwho-can-cast-ballot-2019-05-23/.
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constitutionally permissible than outright disenfranchisement. See Harman v. Forssenius, 380 U.S. 528 (1965).
114. It is also well established that a state may not impose additional punishment7 or deprive a citizen of a fundamental right solely because “through no fault of his own, he cannot pay the fine.” Bearden v. Georgia, 461 U.S. 660, 673 (1983). In other words, Bearden requires a careful consideration of ability to pay before fundamental rights are withheld on the basis of failure to pay a fine.
115. SB 7066 provides no such procedure. Neither Plaintiffs Raysor nor Sherrill have a mechanism for receiving an exception from SB 7066’s requirements because they are unable to pay their LFOs prior to the next election. In the case of Plaintiff Lee, SB 7066 authorizes his removal based on outstanding LFOs without any inquiry into his ability to pay his LFOs. Failure to condition the LFOs requirement on an ability to pay inquiry further violates “the fundamental fairness required by the Fourteenth Amendment.” Id.
7 While not a necessary element of Plaintiffs’ claims, disenfranchisement on the basis of a past conviction—and continued because of inability to pay LFOs—certainly qualifies as punishment. See Johnson, 405 F.3d at 1228 (“Indeed, throughout history, criminal disenfranchisement provisions have existed as a punitive device.”); see also Act of June 25, 1868, ch. 70, 15 Stat. 73, 73 (Readmission Act for Florida) (prohibiting any change to the state constitution that “deprive[s] any citizen or class of citizens of the United States of the right to vote . . . except as punishment for such crimes as are now felonies at common law”).
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116. Florida has no cognizable interest in denying its citizens the right to vote solely on the basis that they are unable to pay their LFOs. “[W]ealth or fee paying has . . . no relation to voting qualifications.” Harper, 383 U.S. at 670. When the LFOs requirement is applied to those unable to pay, “the statute merely prevents” citizens from voting “without delivering any money at all into the hands of [the State].” Zablocki v. Redhail, 434 U.S. 374, 389 (1978); see also Bearden, 461 U.S. at 670 (“Revoking the probation of someone who through no fault of his own is unable to make restitution will not make restitution suddenly forthcoming.”).
117. SB 7066 invidiously discriminates between Florida citizens with prior felony convictions who have been discharged from carceral supervision and who are able to pay their LFOs, and Florida citizens with prior felony convictions, who have been discharged from carceral supervision but are unable to pay their LFOs, in violation of the Fourteenth Amendment.
Count 2: Poll Tax, Twenty-Fourth Amendment 118. Plaintiffs reallege the facts set forth in paragraphs 1-117 above.
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119. The Twenty-Fourth Amendment provides that “[t]he right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, 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.” U.S. Const. amend. XXIV, § 1 (emphasis added).
120. For those who are otherwise eligible, SB 7066 denies the right to vote to those who cannot afford to pay their LFOs solely by reason of their failure to pay fines and fees to the State of Florida.
121. SB 7066 hinges access to the right to vote on the payment of many fines and fees to the government—such as contributions to various state funds and to the costs of the court system itself—that fall well within any reasonable definition of “other tax.” See U.S. v. State Tax Comm’n of Miss., 421 U.S. 599, 606 (1975) (noting that the “standard definition of a tax” is any “enforced contribution to provide for the support of government”); see also Nat’l Fed’n of Indep. Bus. V. Sebelius, 567 U.S. 519, 564 (2012) (stating that the “essential feature of any tax” is that “[i]t produces at least some revenue for the Government).
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122. Upon information and belief, all of Plaintiff Raysor and Hoffman’s outstanding LFOs and at least some of Plaintiff Sherrill’s outstanding LFOs are fees and costs that will produce revenue for the state of Florida.
123. The failure to call SB 7066’s LFOs requirement a “poll tax” does nothing to change its function, which hinges access to the ballot box on the payment of a variety of fines and fees to the state of Florida. See Harman, 380 U.S. at 540-41 (“[T]he Twenty-fourth [Amendment] nullifies sophisticated as well as simple-minded modes of impairing the right guaranteed.” (internal quotation marks omitted)).
124. SB 7066 directly conflicts with the prohibition of the TwentyFourth Amendment. Count 3: Void for Vagueness, First and Fourteenth Amendment
125. Plaintiffs reallege the facts set forth in paragraphs 1-124, above.
126. The Due Process Clause of the Fourteenth Amendment to the U.S. Constitution requires that a law that imposes penalties give ordinary people reasonable notice of what conduct it prohibits and guard against arbitrary and discriminatory enforcement.
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127. The applicability of the void for vagueness doctrine is heightened both when criminal sanctions are attached to a vague law and when the First Amendment is implicated.
128. Here, SB 7066 does both. It attaches threat of criminal sanction to the acts of registering to vote and voting, both of which fall squarely within “core political speech” given the utmost First Amendment protection.
129. The void for vagueness doctrine recognizes a constitutional violation both when a statute is facially vague and, as applied, when a person cannot reasonable guess how the law will apply to indiscernible facts (i.e. “factual vagueness”). See Giaccio v. State of Pa., 382 U.S. 399, 402 (1966) (“It is established that a law fails to meet the requirements of the Due Process Clause if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits[.]”); see also Watkins v. U.S., 354 U.S. 178, 209–15 (1957); Int’l Harvester Co. of Am. v. Commonwealth of Ky., 234 U.S. 216, 221 (1914).
130. SB 7066 does not reasonably inform people with past convictions of which LFOs—imposed as a condition of supervision or imposed in the first instance as civil liens—are disqualifying and which
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are not. Nor does it, by its own admission, provide citizens with access to the records necessary to determine their eligibility. Like Plaintiffs, the reasonable person with a variety of outstanding LFOs will not be able to determine which LFOs are outstanding, which LFOs are disqualifying and which are not, or how to prioritize paying disqualifying LFOs.
131. The state voter registration form—as updated by SB 7066— will not provide citizens with meaningful information to determine their eligibility to vote.
132. Nonetheless, the state subjects voters who make an error in determining their eligibility to the threat of criminal prosecution.
133. This cocktail of confusion and obfuscation will undeniably chill the registration and voting of eligible Florida voters in violation of the First and Fourteenth Amendments.
Count 4: Violation of Due Process, Fourteenth Amendment 134. Plaintiffs reallege the facts set forth in paragraphs 1-133,
above. 135. A “claim alleging a denial of procedural due process requires
proof of three elements: (1) a deprivation of a constitutionally protected liberty or property interest; (2) state action; and (3) constitutionally
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inadequate process.” Grayden v. Rhodes, 345 F.3d 1225, 1232 (11th Cir. 2003).
136. Plaintiffs Raysor, Sherrill, and Hoffman and the members of the Plaintiff Class and Subclass have a constitutionally protected right to vote upon completion of their sentence per Art. VI § 4 of the Florida Constitution and the Fourteenth Amendment to the U.S. Constitution.
137. SB 7066 denies otherwise eligible individuals the right to vote unless and until they pay off certain—but not all—legal financial obligations.
138. Further, SB 7066 fails to provide for adequate procedures to ensure that individuals who qualify for rights restoration are able to register and vote in Florida.
139. Determining what process is due under the Fourteenth Amendment “is a flexible concept that varies with the particular circumstances of each case.” Id. Under Mathews v. Eldridge, the determination of what process is due rests on the balance between (1) the interest affected; (2) the risk of erroneous deprivation under the current procedures and the “probable value, if any, of additional or substitute procedural safeguards;” and (3) the state’s interest, including the “fiscal
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and administrative burdens” additional procedures would entail. 424 U.S. 319, 335 (1976).
140. Here, the constitutionally protected interest at stake is no less than the fundamental right to vote, and the risk of erroneous deprivation is high.
141. The Florida criminal justice system imposes a dizzying array of fines, fees, and costs on persons with felony convictions, including processing fees, surcharges, penalties, and costs that are incurred after sentencing, but which must be paid off as a condition of supervision. The records of these LFOs are decentralized, inaccessible, inconsistent, and incomplete. Not only is SB 7066 itself internally inconsistent about which LFOs disqualifying, it fails to provide any guidelines for otherwise eligible individuals to determine which of their LFOs are disqualifying, or to prioritize payment of those LFOs that prevent them from being able to vote.
142. When a state chooses to restore the right to vote to people with convictions in defined circumstances—such as those outlined in Amendment 4 and SB 7066—those individuals have a constitutional
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right to due process on the question of whether the defined circumstances for rights restoration exist.
143. Currently, the Secretary provides no process for individuals unsure of their eligibility to register pursuant to SB7066’s LFO requirement to determine their eligibility. The only determination process available by Florida law is at the stage of removal from the registration list.
144. However, in order to access that process, applicants must affirmatively swear to their eligibility upon penalty of perjury. Likewise, registered Floridians cannot lawfully cast a ballot unless they believe they are eligible voters. Unlawful voting is a crime.
145. Absent a process for determining eligibility without forcing voters to risk prosecution, many genuinely eligible voters will choose to forgo voting rather than risk registering or voting improperly. For these eligible voters, Florida provides not only insufficient process but no process at all.
146. Further, SB 7066 fails to provide any procedures for how Defendant Lee shall identify registered voters or new registrants whose rights have not been restored due to disqualifying LFOs, including on
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what basis Defendant Lee shall determine that information related to an individual’s disqualifying LFOs is “credible and reliable.” S.B. 7066, 2019 Leg., Reg. Sess., § 24 (Fla. 2019).
147. In creating the Restoration of Voting Rights Work Group, SB 7066 acknowledges that Defendant Lee does not yet know what data is necessary to determine an individual’s eligibility to vote under SB 7066, and that no process yet exists for informing registered voters where they may find this information. Indeed, the Work Group’s report and recommendations for developing these data sources and procedures are not due until four months after the effective date for SB 7066. And the law makes no provision for when or if these recommendations, or any other such procedures, shall be adopted.
148. The lack of procedural safeguards creates a substantial likelihood that eligible voters will be denied the right to vote upon completion of their sentence based on outstanding but non-disqualifying LFOs.
149. In other words, SB 7066 creates a substantial likelihood that individuals entitled to rights restoration under the Florida Constitution will be erroneously deprived of their right to vote.
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150. As stated above, the state has no cognizable interest in discriminating against otherwise eligible voters on the basis of wealth. Nor does the state have any interest in using the right to vote as an incentive for individuals to pay their LFOs. And even to the extent the state has an interest in ensuring that persons with past felony convictions pay in full their financial obligations associated with their convictions, there is simply no evidence to suggest that withholding voting rights until payment of LFOs is complete assists the state in achieving that end any more so than existing procedures unrelated to voting. Indeed, the fiscal and administrative burdens on the state of ensuring that eligible voters are not denied the right to vote under SB 7066 are substantially higher than they otherwise would be, absent the LFO requirements.
151. Moreover, the state has no interest in a process that appears to encourage unlawful registration and voting—since registration is the only mechanism for obtaining a determination of eligibility—and will lead to non-uniform and arbitrary disenfranchisement.
152. SB 7066 therefore violates due process because it creates a procedure for restoration of voting rights that is fundamentally unfair
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and gives rise to a substantial likelihood of erroneous deprivation of the right to vote, and which cannot be justified by any cognizable state interest.
COUNT 5: VIOLATIONS OF NVRA, 52. U.S.C. § 20501, et seq. 153. Plaintiffs reallege the facts set forth in paragraphs 1-152,
above. 154. SB 7066’s voter registration form does not specify the
eligibility requirements for people with convictions, particularly those with outstanding LFOs or out-of-state convictions, in violation of 52 U.S.C. §§ 20507(a)(5) & 20508(b)(2)(a).
155. By requiring applicants to reveal information about prior felony convictions, SB 7066’s voter registration form requires more than the minimum amount of information needed to avoid duplicate registrations and to enable election officials to confirm eligibility in violation of 52 U.S.C. § 20504(c)(2)(B).
156. The lack of uniform information related to outstanding LFOs across Florida’s counties means that voter registration and list maintenance decisions will not be conducted in a uniform nondiscriminatory manner as required by 52 U.S.C. § 20507(b)(1).
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157. Notice of these NVRA violations was provided to Defendant in a June 29, 2019 letter from the Gruver Plaintiffs in this consolidated action on behalf of themselves and “persons similarly situated.”
158. Defendant has been on notice of these violations for over 90 days yet has not remedied these violations, thereby authorizing suit under the NVRA.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully pray that this Court:
(1) Certify the Plaintiff Class as defined in paragraph 47, and the Plaintiff Subclass as defined in paragraph 48;
(2) Issue a declaratory judgment that the relevant portions of SB 7066, by their terms and as applied, violate the Fourteenth and Twenty-Fourth Amendments of the U.S. Constitution, and the NVRA;
(3) Issue a declaratory judgment that the identified LFO portions of SB 7066, by their terms and as applied, are void for vagueness in violation of the First and Fourteenth Amendments;
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(4) Issue a declaratory judgment that SB 7066 fails to provide adequate safeguards against unlawful disenfranchisement in violation of the Fourteenth Amendment;
(5) Enjoin Defendant, her agents, employees, and successors, and all those persons acting in concert or participation with them, from enforcing SB 7066 including: a. Enjoining Defendant from initiating a process for the rejection of any voter registration applications on the basis of outstanding LFOs; b. Enjoining Defendant from initiating a process for the removal of any voters from the voter registration rolls on the basis of outstanding LFOs; c. Requiring Defendant to instruct county election supervisors that outstanding LFOs do not disqualify any individual from voting rights restoration, and therefore not to remove or reject any registrant based on outstanding LFOs;
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CCaassee44:1:199-c-cvv-0-000330011-R-RHH-M-MJJFF DDooccuummeennt t1112-2 FFileiledd1100/2/299/1/199 PPaaggee5544oof f5555
d. Requiring Defendant to inform those with past felony convictions that the failure to pay LFOs does not disqualify them from voting rights restoration under Amendment 4;
e. Requiring Defendant to instruct county election supervisors to restore Florida citizens to the voter registration rolls if they were removed solely on the basis of their outstanding LFOs;
f. Enjoining Defendant from requiring voter registration applicants to identify their prior convictions and otherwise provide more than the minimum information necessary to avoid duplicate registrations and enable election officials to confirm eligibility;
g. Requiring Defendant to specify on the voter registration form the precise eligibility requirements for people with convictions, including those with outstanding LFOs and out-of-state convictions.
(6) Award Plaintiffs their costs, expenses, and reasonable attorneys’ fees incurred in the prosecution of this action, as authorized by the Civil Rights Attorney’s Fees Awards Act of
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CCaassee44:1:199-c-cvv-0-000330011-R-RHH-M-MJJFF DDooccuummeennt t1112-2 FFileiledd1100/2/299/1/199 PPaaggee5555oof f5555

1973, 42 U.S.C. § 1988(b), and the NVRA, 52 U.S.C. § 20510(c); and (7) Grant such other equitable and further relief as the Court deems just and proper.

Respectfully submitted, /s/ Danielle Lang

Chad W. Dunn

Danielle Lang (DC Bar No. 1500218)*

Florida Bar No. 0119137

Mark P. Gaber (DC Bar No. 988077)*

1200 Brickell Avenue, Suite Molly E. Danahy (DC Bar No. 1643411)*

1950

Blair Bowie (DC Bar No. 252776)*

Miami, FL 33131

Jonathan Diaz (DC Bar No. 1613558)*

Telephone: (305) 783-2190 1101 14th Street NW, Suite 400

Facsimile: (305) 783-2268 Washington, DC 20005

chad@brazilanddunn.com Telephone: (202) 736-2200

dlang@campaignlegal.org

mgaber@campaignlegal.org

mdanahy@campaignlegal.org

bbowie@campaignlegal.org

jdiaz@campaignlegal.org

*admitted pro hac vice Counsel for Plaintiffs

54

 </s> Case 4:19-cv-00302-RH-MJF Document 1 Filed 06/28/19 Page 1 of 74

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA
Gainesville Division

JEFF GRUVER, EMORY MARQUIS

)

“MARQ” MITCHELL, BETTY RIDDLE,

) )

KRISTOPHER WRENCH, KEITH IVEY,

)

KAREN LEICHT, RAQUEL WRIGHT,

)

STEVEN PHALEN, CLIFFORD TYSON,

) )

JERMAINE MILLER, FLORIDA STATE

)

CONFERENCE OF THE NAACP, ORANGE )

COUNTY BRANCH OF THE NAACP, AND

) )

LEAGUE OF WOMEN VOTERS OF

)

FLORIDA,

)

)

Plaintiffs,

)

)

v.

)

)

KIM A. BARTON, in her official capacity as )

Supervisor of Elections for Alachua County,

) )

PETER ANTONACCI, in his official capacity as )

Supervisor of Elections for Broward County, )

MIKE HOGAN, in his official capacity as

) )

Supervisor of Elections for Duval County,

)

CRAIG LATIMER, in his official capacity as )

Supervisor of Elections for Hillsborough County,

) )

LESLIE ROSSWAY SWAN in her official

)

capacity as Supervisor of Elections for Indian )

River County, MARK EARLEY in his official

) )

capacity as Supervisor of Elections for Leon )

County, MICHAEL BENNETT, in his official

) )

capacity as Supervisor of Elections for Manatee )

County, CHRISTINA WHITE, in her official )

capacity as Supervisor of Elections for Miami-

) )

Dade County, BILL COWLES, in his official )

capacity as Supervisor of Elections for Orange )

County, RON TURNER, in his official capacity

) )

as Supervisor of Elections for Sarasota County, )

and LAUREL M. LEE, in her official capacity as )

Secretary of State of the State of Florida,

) )

Defendants.

) )

Complaint No: ______________

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COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF This lawsuit challenges Florida’s new law, SB7066, which
unconstitutionally denies the right to vote to returning citizens with a past felony conviction based solely on their inability to pay outstanding fines, fees, or restitution.1 Plaintiffs allege as follows:
PRELIMINARY STATEMENT 1. On November 6, 2018, a supermajority of nearly 65 percent of Florida voters—more than 5 million people—approved one of the largest expansions of voting rights in the United States since the passage of the Voting Rights Act of 1965. In enacting the Voting Restoration Amendment, known as Amendment 4, voters revised the Florida Constitution to abolish permanent disenfranchisement of nearly all citizens convicted of a felony offense. Amendment 4 automatically restored voting rights to over a million previously disenfranchised Floridians who had completed the terms of their sentences including parole or probation—ending a broken system that disenfranchised more than 10 percent of all of the state’s voting-age population and more than 20 percent of its African American voting-age population, Hand v. Scott, 285 F. Supp. 3d 1289, 1310 (N.D. Fla. 2018). Its passage was a historic achievement for American
1 This document refers to persons with felony convictions as “returning citizens” throughout.
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democracy and made clear that Florida voters intended to end lifetime disenfranchisement and give their fellow citizens a voice in the political process.
2. Florida’s prior disenfranchisement provision originated in the 1860s, as part of Florida’s prolonged history of denying voting rights to Black citizens and using the criminal justice system to achieve that goal. From the shadow of that history, voters overwhelmingly chose to expand the franchise to persons previously excluded. Floridians recognized, as the United States Supreme Court has, that “[n]o right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.” Wesberry v. Sanders, 376 U.S. 1, 17 (1964).
3. This action challenges the attempt by certain Florida lawmakers to vitiate Amendment 4’s enfranchising impact by making restoration of voting rights contingent on a person’s wealth. Amendment 4’s language is clear and simple— individuals with a conviction for any felony other than murder or a sexual offense will have their voting rights “restored upon completion of all terms of sentence including parole or probation.” Yet, on June 28, 2019, Governor Ron DeSantis signed legislation—which the Senate and House ultimately passed along party line votes—that attempts to drastically claw back the voting rights conferred by Amendment 4 and retract Plaintiffs’ right to vote. SB7066 provides that returning
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citizens are not eligible to register or vote until they settle any form of legal financial obligation (“LFO”) that arises from their conviction—even if those returning citizens will never be able to pay outstanding balances, and even where their outstanding debt has been converted to a civil lien.
4. SB7066 conditions Plaintiffs’ right to vote on their wealth and penalizes returning citizens who are unable to pay, in violation of the First, Fourteenth, Fifteenth, and Twenty-Fourth Amendments and the Ex Post Facto Clause of the U.S. Constitution. If not enjoined, the law will have a massive disenfranchising effect, and result in sustained, and likely permanent, disenfranchisement for individuals without means.2 It creates two classes of returning citizens: those who are wealthy enough to vote and those who cannot afford to. This disenfranchisement will be borne disproportionately by low-income individuals and racial minorities, due to longstanding and well-documented racial gaps in poverty and employment.
2 The Florida Clerk of the Courts Association anticipates that 83 percent of all legal financial obligations will remain unpaid, due to the payor’s financial status. See Daniel Rivero, Felons Might Have to Pay Hundreds of Millions Before Being Able to Vote in Florida, WLRN Public Radio and Television (Jan. 20, 2019), https://www.wlrn.org/post/felons-might-have-pay-hundreds-millions-being-ablevote-florida. Similarly, the Florida Circuit Criminal Courts failed to collect nearly 80 percent of all fines and fees in 2018. Fines & Fees Justice Center, Annual Assessments and Collections Report [Florida, 2013-2018] (Sep. 30, 2018) https://finesandfeesjusticecenter.org/articles/annual-assessments-and-collectionsreport-florida-2013-2018/.
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5. SB7066 is further unlawful because it was motivated, at least in part, by a racially discriminatory purpose. It is well-established that people with felony convictions in Florida are disproportionately Black—a product of higher rates of police stops, arrest, prosecution, and conviction of Black citizens in the criminal justice system. It is also well-established that a large majority of returning citizens have LFOs they cannot pay now or in the foreseeable future. In addition, Black Floridians with a felony conviction face intersecting barriers to paying off their LFOs due to hurdles to employment and long-standing racial disparities in wealth and employment across the state. Yet, notwithstanding this disproportionate impact on Black returning citizens, before SB7066 was enacted, lawmakers expressly refused to consider evidence about the racial and socioeconomic impacts of the law and the foreseeable harm to Black communities, and rejected ameliorative amendments that they were advised could have lessened the law’s impact on Black returning citizens. There is a strong inference that the law was motivated by discriminatory purposes in violation of the Fourteenth and Fifteenth Amendments to the U.S. Constitution in light of: the history of racial discrimination underlying Florida’s felony disenfranchisement regime; the sequence of events and procedural irregularities leading to SB7066’s enactment; the reasonably foreseeable and known discriminatory impact; and the tenuousness of the stated justifications for SB7066.
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6. SB7066 will also prevent or at least chill voter registration and voting among returning citizens because Florida has no unified system to accurately record data on LFOs, and no system to access data on federal or out-of-state financial obligations, leaving returning citizens without any reasonable or accessible method of determining if they would violate the law by registering to vote, or means to defend against challenges to their eligibility to vote based on LFOs. Such a scheme violates the Fourteenth Amendment of the U.S. Constitution.
7. SB7066 will also significantly impede organizational Plaintiffs’ ability to engage in voter registration activities and thus directly burdens fundamental First Amendment speech and associational rights, which are inseparable and intertwined aspects of those activities. Organizational Plaintiffs’ members and volunteers must hesitate in conducting their core voter registration activities due to the risk of creating legal liability for returning citizens who have no means to determine whether their LFOs would make them ineligible to register. As a result, members have been deterred from registering voters. The need to inquire into the status of potential applicants’ LFOs has undermined the feasibility of organizational Plaintiffs’ voter registration drives.
8. Floridians spoke loud and clear last November by amending their constitution by citizen initiative, “the most sacrosanct of all expressions of the people,” Fla. Hosp. Waterman, Inc. v. Buster, 984 So. 2d 478, 485–86 (Fla. 2008).
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It was regularly reported that Amendment 4 would restore voting rights to roughly 1.4 million people in Florida, reflecting the public’s understanding that restoration of voting rights would not be contingent on one’s wealth.
9. SB7066 reinstates a system of lifetime disenfranchisement for a large number of returning citizens—imposing precisely the unjust system that Floridians overwhelmingly rejected through Amendment 4. The Florida Legislature’s attempt to retract voting rights and revert to a system of permanent disenfranchisement for the large class of citizens who cannot afford to pay LFOs—and who are disproportionately people of color—is an affront to the U.S. Constitution. It cannot stand.
PARTIES 10. Plaintiff JEFF GRUVER is a U.S. citizen and Florida resident. Mr. Gruver, a 33-year-old white man, works at Grace Marketplace, a facility for the homeless in Gainesville, where he is the director of shelter services assisting shelter residents to access treatment, employment, and permanent housing. He just completed his first semester of a Master of Social Work degree at Florida State University. Nearly ten years ago, Mr. Gruver was struggling with addiction. He was convicted of possession of cocaine in 2008 and was assessed $801 in LFOs— including a court attorney and indigent application fee, court costs, and a fine. Mr. Gruver is unable to pay his outstanding LFOs. Mr. Gruver’s voting rights were
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restored on January 8, 2019, by operation of Amendment 4. He registered to vote on February 19, 2019, and voted in the Gainesville regular election in March 2019. Mr. Gruver is worried that he will lose his right to vote, and that he might be removed from the voter registration rolls because of his inability to pay his outstanding LFOs.
11. Plaintiff EMORY MARQUIS “MARQ” MITCHELL is a U.S. citizen and Florida resident. Mr. Mitchell, a 29-year-old Black man, is the president and founder of Chainless Change Inc., a non-profit organization that is committed to reducing recidivism by providing resources and support to individuals and families who are impacted by the criminal justice system. Additionally, Mr. Mitchell serves as: a trained Peer Support Specialist at the South Florida Wellness Network, which assists young people and families with cooccurring disorders; a mentor with an employment-readiness nonprofit; and a member of two subcommittees on the Broward County Reentry Coalition. Mr. Mitchell devotes significant time and resources to his public interest endeavors, for which he does not receive a salary. He recently qualified for food assistance benefits. Mr. Mitchell grew up in the foster care system and was in and out of Department of Juvenile Justice custody after the age of twelve. He was convicted of felony escape from a Department of Juvenile Justice facility for an offense he committed at the age of sixteen. He was sentenced to 8 months and 1 day in jail.
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Weeks after aging out of the foster-care system, he went on to attend Florida Memorial University. At twenty-one, he was convicted of battery, a third-degree felony, arising out of an incident in which he was abused by campus security officers while he was a student. Mr. Mitchell had his voting rights restored on January 8, 2019, by operation of Amendment 4. He registered to vote in Broward County on March 9, 2019. Mr. Mitchell has outstanding LFOs stemming from his two felony convictions—a combination of court costs and fines—in the amount of $2,143. He was unaware of his court costs and fines until he received a notice from the Miami-Dade Clerk of Court earlier this year, soon after registering to vote. Mr. Mitchell fears he might be removed from the registration rolls and denied the right to vote because he is unable to pay his outstanding LFOs.
12. Plaintiff BETTY RIDDLE is a U.S. citizen and Florida resident. Ms. Riddle is a 61-year-old Black woman. She is mother to four adult children, grandmother to twenty-four grandchildren, and great-grandmother to eight. She works as a communications assistant for the Public Defender of Sarasota. She dropped out of high school at the age of sixteen, and was convicted of a felony in at the age of seventeen. She spent 22 years caught in a cycle of addiction that led her to a series of convictions, mostly for possession of controlled substances and offenses related to supporting her conviction. At the age of fifty-two, in recovery from her addiction, Ms. Riddle went back to school, earning a degree from the
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State College of Florida. On January 8, 2019, she became eligible to register to vote for the first time in her life. She was one of the first people to submit her registration form to the Sarasota Supervisor of Elections on January 8, and is now registered to vote. Having her citizenship recognized was one of the proudest moments of her life, and she celebrated the occasion with her daughter. Ms. Riddle still has over $1,000 in outstanding court costs and fees. Because she cannot afford to pay her LFOs, Ms. Riddle fears that she might be removed from the voter registration rolls and deprived of her first opportunity to cast a ballot in Florida, where she has lived her entire life.
13. Plaintiff KAREN LEICHT is a U.S. citizen and Florida resident. Ms. Leicht, a 62-year-old white woman, lives in Miami-Dade County, where she works full-time as a senior paralegal at a civil rights law firm that specializes in disability rights work. She is also the main caregiver for her mother, who suffers from Parkinson’s disease. On April 7, 2010, she pled guilty to conspiracy to commit insurance and wire fraud and provided substantial assistance to prosecutors in the case. The court sentenced her to a term of incarceration and ordered her to pay $59,136,990.19 in restitution, which includes the full judgment of restitution ordered against her ten co-defendants—who are jointly and severally liable—even though she played only a minor role in the crime. She fulfilled all terms of probation and was released from supervision on January 1, 2013. Within one week
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of being transferred from federal prison to a Miami-based residential reentry facility, Ms. Leicht had secured full-time employment at her law firm, where she has worked full-time ever since. Ms. Leicht dutifully makes monthly restitution payments towards the shared $59 million obligation, but has no ability to satisfy the outstanding amount in her lifetime. Ms. Leicht’s voting rights were restored pursuant to Amendment 4 on January 8, 2019. On April 29, 2019, she registered to vote.
14. Plaintiff KEITH IVEY is a U.S. citizen and Florida resident. Mr. Ivey, a 46-year-old Black man, lives in Jacksonville, Florida, where he manages a car dealership, supervising some 10–20 people he contracts with at his business. He qualified for early release after serving eight-and-a-half years of a ten-year sentence for violating Florida’s RICO statute. Even while still incarcerated, Mr. Ivey was a part of a Duval County entrepreneurship and mentorship program, and while at the Transition House in Kissimmee, Florida, he was elected Community Coordinator at the facility. One week after he was released from prison, Mr. Ivey had already enrolled in community college, before beginning his current role managing the car dealership in Jacksonville. Mr. Ivey has conducted speaking engagements to motivate and connect with at-risk youth in Florida and wants to help fellow returning citizens become productive members of society as he has done for himself. He had no probation or parole associated with his sentence, but
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has $400 in outstanding costs from more than 15 years ago. Mr. Ivey was not even aware of these costs until a reporter notified him of them in 2019. Mr. Ivey’s voting rights were restored pursuant to Amendment 4 on January 8, 2019. He registered to vote on that day and, as a registered voter, subsequently voted on two occasions: once in the March 2019 Duval County election and then in the May 2019 runoff election.
15. Plaintiff KRISTOPHER WRENCH is a U.S. citizen and Florida resident. Mr. Wrench, a 42-year-old white man, has struggled with addiction and has been convicted of felony offenses for acts related to his addiction, such as possession of controlled substances and driving with a suspended license. He has been in recovery, and sober, since January 4, 2012. He is now a productive member of his community and takes twelve-step programs into prisons to support those who are still struggling with addiction. Mr. Wrench attended Santa Fe College, where he studied for a degree in bio-medical engineering technology. He works as a painter while his wife is studying for her master’s degree. They are expecting their first child later this year. His voting rights were restored on January 8, 2019, by operation of Amendment 4. He submitted an online voter registration application and was registered to vote in Alachua County on May 4, 2019. Mr. Wrench owes approximately $3,000 in court costs and fines, as a result of his past convictions. Mr. Wrench fears he might be removed from the Alachua County
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voter registration rolls or denied the right to vote because he is unable to pay his outstanding costs and fines.
16. Plaintiff RAQUEL L. WRIGHT is a U.S. citizen and Florida resident. She is a 44-year-old Black woman and mother to a 13-year-old daughter. Ms. Wright works part-time as a legal assistant to the Special Counsel to the Florida State Conference of the NAACP and part-time as the Assistant Secretary of the Indian River County Branch of the NAACP. She has a college degree, student loan and other debt, and aspires to go to law school. She was convicted of drug trafficking in 2011. Before this conviction, Ms. Wright had been a teacher for more than 14 years. Following her conviction, the State of Florida permanently revoked her teaching certificate and prohibited Ms. Wright from teaching in a Florida public school. After completing the first seven months of her sentence in prison, Ms. Wright served the remaining twenty-two months on a work-release program. During such time, she tutored more than 80 women who passed their GED exams. On January 8, 2019, Ms. Wright’s voting rights were automatically restored through operation of Amendment 4. Soon thereafter, Ms. Wright registered to vote at the Indian River County Supervisor of Elections Office. Having her voting rights restored has been one of her proudest accomplishments. Ms. Wright has outstanding LFOs stemming from her sole felony conviction—a combination of court costs and a fine that has been converted to a civil lien—in the amount of at
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least $50,000. Because of Ms. Wright’s inability to fully pay these monetary obligations, she fears she might be removed from the voter registration rolls and barred from participating in the democratic process. Ms. Wright wishes to vote in future elections to have a voice in who represents her, to illustrate to her daughter the importance of political participation, and to exercise a fundamental right of American citizenship.
17. Plaintiff STEVEN PHALEN, a 36-year-old white man, is a U.S. citizen and Florida resident. In 2005, Mr. Phalen resided in Wisconsin and was convicted of arson and public endangerment by a Wisconsin state court. The court sentenced him to a term of probation and payment of approximately $150,000 in restitution and court costs and fees, of which he still owes approximately $110,000. Since that time, Mr. Phalen has earned a Ph.D. in organizational and relational communication and established his career doing HVAC logistics for a multinational manufacturer and distributor. In 2015, he moved with his wife to Florida. On November 18, 2017, a Wisconsin court discharged Mr. Phalen from supervision and converted his outstanding LFOs to civil liens. Wisconsin restores voting rights to its residents with a past conviction upon completion of their supervision, irrespective of their outstanding financial obligations. As a Florida resident, Mr. Phalen had his rights restored on January 8, 2019, when Amendment 4 became effective. He registered to vote on February 26, 2019. Mr.
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Phalen makes monthly payments towards his outstanding LFOs, but cannot afford to complete payment at present. He fears he might be removed from the registration rolls as a result of SB7066.
18. Plaintiff CLIFFORD TYSON is a U.S. citizen and Florida resident. He is a 62-year-old Black man and a Pastor. He has been convicted of three felonies related to theft or robbery— in 1978, he was sentenced to a 15-year term of probation and ordered to pay $2.00 in court costs and $10.00 per month towards the cost of his supervision; in 1997, he was ordered to pay $1,337.94 in restitution and $259.00 in court costs and fees; and in 1998, he was sentenced to a period of community control and probation and ordered to pay $530 in restitution, along with court costs and fees that appear to total to $661.00 (records of the costs and fees assessed for Pastor Tyson’s 1998 conviction are difficult to parse, particularly because two Hillsborough County records reflect differing amounts). He fulfilled all terms of community control and probation and was released from supervision on October 6, 2003. Pastor Tyson is a productive member of his community and provides pastoral care in prisons across the state. His voting rights were restored on January 8, 2019, by operation of Amendment 4. He registered to vote that day in Hillsborough County and, as a registered voter, subsequently voted on two occasions: March 3, 2019 and April 23, 2019. Pastor Tyson has paid off his restitution obligations, but is unable to pay the costs imposed as part of his felony
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sentences. He was unaware those costs remained unpaid until he was notified by counsel, and it is unclear from records or officials how much he actually has outstanding. Because of Pastor Tyson’s inability to fully pay these monetary obligations, he fears he might be removed from the voter registration rolls or denied the right to vote.
19. Plaintiff JERMAINE MILLER is a U.S. citizen and Florida resident. He is a 28-year-old Black man, community advocate, and graduate of Tallahassee Community College. Mr. Miller was convicted of a robbery and trespass in 2015, sentenced to prison, followed by a term of probation, and ordered to pay $223.80 in restitution and $1,221.25 in court costs and fines. Mr. Miller’s probation was terminated on October 31, 2016. His voting rights were restored on January 8, 2019, by operation of Amendment 4. Mr. Miller registered to vote in Leon County on January 21, 2019. Although Mr. Miller has paid $242 in restitution—$18.20 more than the amount ordered—the Florida Department of Corrections contends that he owes a balance of $1.11 because of the 4% surcharge charged on the restitution payments he has made. Mr. Miller still owes $1,221.25 in court costs and fines, and he is unable to pay these outstanding LFOs. Because of Mr. Miller’s inability to pay off these monetary obligations, he fears that he might be removed from the voter registration rolls or denied the right to vote.
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20. Plaintiff FLORIDA STATE CONFERENCE OF BRANCHES AND YOUTH UNITS OF THE NAACP (“Florida NAACP”) is a nonprofit, nonpartisan civil rights membership organization in Florida. Florida NAACP is a state conference of branches of the national NAACP (“NAACP”). The NAACP was formed in 1909, to remove all barriers of racial discrimination through democratic processes and through the enactment and enforcement of federal, state, and local laws securing civil rights, including laws relating to voting rights. The Florida NAACP’s members are predominantly African American and other minority residents, who reside throughout Florida. The Florida NAACP also has local branch units throughout Florida, including the Orange County Branch NAACP (“Orange County NAACP”), discussed in more detail below, which themselves are membership organizations. Members of a branch are also members of the Florida NAACP. For example, Plaintiff Wright is a member of the Florida NAACP and the Indian River County Branch of the NAACP.
21. The Florida NAACP and its local units have been heavily involved in voter registration and voter education activities for decades and have been credited with registering thousands of voters in the state. The organization conducts statewide voter protection on election days (including the operation, in 2018, of six “satellite centers”). Many members of the state and local branches, including the Orange County NAACP, had their rights restored on January 8, 2019, by operation
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of Amendment 4. Some members of the state and local NAACPs, including the Orange County NAACP, as well as members of the communities that they serve, include low-income people with felony convictions, who will be permanently disenfranchised by operation of SB7066. Many of these impacted people are unable to determine the full amount of the LFOs that they may owe, cannot afford to fully pay all of their LFOs, and are at risk of being purged from the registration rolls when SB7066 becomes effective. SB7066—which amends Florida’s voter registration form to require that individuals identify as having been convicted of a felony, and the means by which their voting rights were restored—will stigmatize members of the state and local NAACPs, including the Orange County NAACP, and individuals that they serve.
22. Moreover, as a result of SB7066, Florida NAACP and its local units, including the Orange County NAACP, will have to expend much-needed resources identifying people with felony convictions to determine whether they are eligible to register, and the extent of any LFOs that they may owe. Were it not for SB7066, the Florida NAACP, and local units including the Orange County NAACP, would otherwise be spending these resources on its regular activities, such as registering voters, getting out the vote, and conducting statewide voter protection on election days.
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23. Plaintiff ORANGE COUNTY BRANCH OF THE NAACP (“Orange County Branch NAACP” or “Branch”), which was established in 1942, is a nonprofit, nonpartisan civil rights membership organization in Florida and local branch of the Florida NAACP, with the same mission, objectives, and votingrelated activities, as the Florida NAACP. The Orange County NAACP has been heavily involved in voter registration and voter education activities for years, including being credited with registering thousands of voters in Orange County. Members of the Florida NAACP residing in Orange County, who also are members of the Orange County NAACP, will be affected by SB7066 as described above.
24. Plaintiff LEAGUE OF WOMEN VOTERS OF FLORIDA (the “LWVF” or “League”) is the Florida affiliate of the national League of Women Voters (the “National League”). LWVF is a nonpartisan, not-for-profit corporation organized under the laws of Florida, and a tax-exempt charity pursuant to section 501(c)(4) of the Internal Revenue Code.
25. The mission of LWVF is to promote political responsibility by encouraging informed and active citizen participation in government, including by registering citizens to vote and influencing public policy through education and advocacy. LWVF has thousands of members in Florida and an even greater number of supporters and volunteers, who receive regular communications from
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the League. The National League has conducted voter registration nationwide since 1920, and LWVF has conducted voter registration in Florida since before 1939. In the past, LWVF has conducted voter registration drives through the auspices of its 29 local Leagues located in cities and counties throughout Florida.
26. Registering new voters is the core mission of LWVF, and an important part of accomplishing the League’s goal of increasing political participation by underrepresented and disenfranchised communities, particularly residents of low-income, African American, and Hispanic/Latinx communities. LWVF assists voters in filling out voter registration applications, and then collects and submits them to the Supervisors of Elections. LWVF finds that this collection and submission are necessary to the success of its voter registration drives. Absent this assistance, LWVF has found that applicants are confused about how to properly fill out their applications and are unsure where and how to submit them, which results in incomplete, and therefore ineffective, registrations that later cause confusion at the polls when would-be voters find out they are not on the rolls. LWVF’s success in registering new voters depends on its ability to not only persuade others of the importance of registering to vote, but also on its ability to assist others to fill in forms properly, to collect the forms, and to deliver completed forms to the appropriate State offices.
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27. LWVF volunteers: (i) generally discuss the importance of voting and of civic engagement; (ii) inform other citizens about important issues that will be decided in upcoming elections, such as ballot initiatives and referenda; and (iii) urge other citizens to associate with LWVF and with one another by registering to vote and engaging in meaningful collective action, described above, to advance shared political or social objectives.
28. SB7066 significantly impedes LWVF’s ability to engage in voter registration activities and thus directly burdens LWVF’s fundamental speech and associational rights, which are inseparable and intertwined aspects of those activities. LWVF is careful to avoid inadvertently helping someone register to vote who is ineligible. Some volunteers will not engage in registration activities at all because of their concerns about SB7066. Because SB7066 renders LWVF volunteers unable to determine the eligibility of some returning citizens, it prevents LWVF from registering returning citizens who are in fact eligible to vote and whom LWVF would otherwise help register.
29. As a result, LWVF has been forced to divert substantial time and resources away from registration activities to, inter alia: explain the complicated provisions of SB7066 to potential registrants; field inquiries from members and volunteers who cannot determine who is eligible to register under Amendment 4;
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and develop new training materials for its volunteers and new educational materials for returning citizens.
30. Defendant Secretary of State LAUREL M. LEE is sued in her official capacity as Secretary of State of the State of Florida. The Department of State (“DOS”) “shall have general supervision and administration of the election laws.” Fla. Stat. § 15.13. As Florida’s “chief election officer,” the Secretary must “[o]btain and maintain uniformity in the interpretation and implementation of the election laws.” Id. § 97.012(1). She is responsible for “enforc[ing] the performance of any duties of a county supervisor of elections.” Id. § 97.012(14). She is also responsible for providing “written direction and opinions to the supervisors of elections on the performance of their official duties with respect to the Florida Election Code or rules adopted by the Department of State.” Id. §§ 97.012(4)–(5), (16). She is responsible for ensuring state compliance with all election laws. See Democratic Exec. Comm. of Fla. v. Lee, 915 F.3d 1312, 1318 (11th Cir. 2019) (“Because the Secretary is the state’s chief election officer with the authority to relieve the burden on Plaintiffs’ right to vote, she was appropriately sued for prospective injunctive relief.”) (citing Fla. Stat. § 97.012); see also Ex parte Young, 209 U.S. 123 (1908) (permitting injunctive relief against individual state officers in their official capacities).
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31. Defendant KIM A. BARTON is the Supervisor of Elections for Alachua County, Defendant PETER ANTONACCI is the Supervisor of Elections for Broward County, Defendant MIKE HOGAN is the Supervisor of Elections for Duval County, Defendant CRAIG LATIMER is the Supervisor of Elections for Hillsborough County, Defendant LESLIE ROSSWAY SWAN is the Supervisor of Elections for Indian River County, Defendant MARK EARLEY is the Supervisor of Elections for Leon County, Defendant MICHAEL BENNETT is the Supervisor of Elections for Manatee County, Defendant CHRISTINA WHITE is the Supervisor for Elections for Miami-Dade County, and Defendant BILL COWLES is the Supervisor of Elections for Orange County, Defendant RON TURNER is the Supervisor of Elections for Sarasota County. These Defendants are responsible for conducting elections and voter registration in their respective counties. SB7066 gives local Supervisors of Elections (“SOEs”) more front-end responsibility for registration, requiring them to “verify and make a final determination . . . regarding whether the person who registers to vote is eligible pursuant to [Amendment 4] and this section.” Fla. Stat. § 98.0751(3)(b). While the SOE “may request additional assistance from the [Department of State] in making the final determination,” id. § 98.0751(3)(c), the bill does not give SOEs any additional resources for this new responsibility.
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JURISDICTION 32. Plaintiffs bring this action under 42 U.S.C. §§ 1983 and 1988 to redress the deprivation under color of state law of rights secured by the United States Constitution. 33. This Court has original jurisdiction over the subject matter of this action pursuant to 28 U.S.C. §§ 1331 and 1343 because the matters in controversy arise under the Constitution and laws of the United States, and because Plaintiffs bring this action to redress the deprivation, under color of state law, of rights, privileges, and immunities secured by the Constitution of the United States and federal law. 34. Declaratory relief is authorized by 28 U.S.C. §§ 2201 and 2202. 35. Venue is proper in this District under 28 U.S.C. § 1391(b) because all Defendants reside in Florida, and Defendant Barton has her principal place of business in this District. 36. Under Northern District of Florida Local Rule 3.1(A)–(B), this case is properly filed in the Gainesville Division of this District because Defendant Barton has her principal place of business in a county included in the Gainesville Division.
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STATEMENT OF FACTS I. Background on the Passage of Amendment 4
37. On November 6, 2018, Florida voters resoundingly and decisively approved Amendment 4 to the Florida Constitution with 64.55 percent in support. 5,148,926 Floridians of every race and political party voted in favor of Amendment 4, reflecting the clear will of the people that individuals with felony convictions should re-join the electorate once they complete their sentence. Fla. Div. of Elections, Voting Restoration Amendment 14-01, https://dos.elections.myflorida.com/initiatives/initdetail.asp?account=64388 &seqnum=1 (last visited May 24, 2019).
38. The full text of the Amended Article VI, Section 4 (Disqualifications), reads:
(a) No person convicted of a felony, or adjudicated in this or any other state to be mentally incompetent, shall be qualified to vote or hold office until restoration of civil rights or removal of disability. Except as provided in subsection (b) of this section, any disqualification from voting arising from a felony conviction shall terminate and voting rights shall be restored upon completion of all terms of sentence including parole or probation. (b) No person convicted of murder or a felony sexual offense shall be qualified to vote until restoration of civil rights. Fla. Const., Art. VI, § 4 (italics added).
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39. Amendment 4’s language is clear and simple—the constitutional
amendment ensures that individuals with a felony conviction, for a felony crime
other than murder or a sexual offense, will have their voting rights “restored upon
completion of all terms of sentence including parole or probation.” Id. The Florida
Supreme Court, in approving the title and summary of the amendment in 2017,
declared that Amendment 4 conveyed to voters “that the chief purpose of the
amendment is to automatically restore voting rights to felony offenders, except
those convicted of murder or felony sexual offences, upon completion of all terms
of their sentence.” Advisory Opinion to the Attorney Gen. Re: Voting Restoration Amendment, 215 So. 3d 1202, 1208 (Fla. 2017) (emphasis added).3
40. “[T]he power of the people to amend their state constitution by
initiative is an integral part of Florida’s lawmaking power.” Brown v. Sec’y of State
of Fla., 668 F.3d 1271, 1281 (11th Cir. 2012). The Elections Clause of the U.S.
3 There is a presumption that provisions of the Florida Constitution are selfexecuting, see, e.g., Browning v. Fla. Hometown Democracy, Inc., 29 So. 3d 1053, 1064 (Fla. 2010), because “in the absence of such presumption the legislature would have the power to nullify the will of the people expressed in their constitution, the most sacrosanct of all expressions of the people,” Fla. Hosp. Waterman v. Buster, 984 So. 2d 478, 485–86 (Fla. 2008) (quoting Gray v. Bryant, 125 So. 2d 846, 851 (Fla. 1960)). The Supreme Court’s determination that Amendment 4 confers automatic rights restoration clarifies that the constitutional amendment does not require legislation and is self-executing. See Gray, 125 So. 2d at 851 (determining that a constitutional provision is self-executing if the right conferred “may be determined, enjoyed, or protected without the aid of legislative enactment.”).
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Constitution permits citizens, through the initiative process, to regulate elections as a lawmaking apparatus of a state. Ariz. State Leg. v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2677 (2015). Floridians’ initiative power permits them to constrain the state legislature’s own authority, by amending the state constitution. Brown, 668 F.3d at 1278. They did so in Amendment 4.
41. Self-executing constitutional provisions constrain the Legislature’s authority. While the Legislature may “supplement, protect, or further the availability of the constitutionally conferred right . . . the Legislature may not modify the right in such a fashion that it alters or frustrates the intent of the framers and the people.” Browning v. Fla. Hometown Democracy, Inc., 29 So. 3d 1053, 1064 (Fla. 2010). As such, the Legislature cannot pass any legislation that would reduce (a) the rights guaranteed under Amendment 4, or (b) the number of people to whom they are guaranteed. See id.
42. Amendment 4 was passed on November 6, 2018, and became effective on January 8, 2019.
43. Returning citizens, like individual Plaintiffs and members of organizational Plaintiffs Florida NAACP and Orange County NAACP, began registering to vote on January 8, 2019, and subsequently voted in local elections
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across Florida.4 Just months after it was enacted, Amendment 4 had already made
Florida’s electorate more representative of its voting-age population by reinstating
the voting rights of many people of color and less affluent individuals. More than
2,000 formerly incarcerated Floridians registered to vote between January and
March 2019, about 44 percent of whom were Black people. Kevin Morris,
Analysis: Thwarting Amendment 4, Brennan Ctr. for Just. 2–3 (May 9, 2019)
https://www.brennancenter.org/sites/default/files/analysis/2019_05
_FloridaAmendment_FINAL-3.pdf. Similarly, the average income of formerly
incarcerated Floridians who registered to vote during that time period was $14,000
below the average Florida voter. Id.
4 Mainstream and widespread media coverage of the Amendment 4 campaign estimated that it would restore rights to between 1.2 and 1.6 million people in Florida. See, e.g., Steve Bousquet, Connie Humburg & McKenna Oxenden, What’s Riding on Amendment 4 and Voting Rights for Convicted Felons, Tampa Bay Times (Nov. 2, 2018), https://www.tampabay.com/florida-politics/buzz/2018/11 /02/amendment-4-democrats-and-blacks-more-likely-to-have-lost-voting-rightsthan-republicans-and-whites/ (citing an estimated 1.2 million people affected by Amendment 4); Samantha J. Gross & Elizabeth Koh, What is Amendment 4 on Florida ballot? It Affects Restoration of Felons’ Voting Rights, Miami Herald (Oct. 5, 2018), https://www.miamiherald.com/news/politics-government/election /article219547680.html (estimated 1.6 million); Steven Lemongello, Floridians Will Vote This Fall on Restoring Voting Rights to 1.5 Million Felons, Fla. Sun Sentinel (Jan. 23, 2018), https://www.sun-sentinel.com/news/politics/os-floridafelon-voting-rights-on-ballot-20180123-story.html (estimated 1.5 million). These estimates included returning citizens with outstanding LFOs, reflecting the common understanding—including by the Floridians who voted for it—that Amendment 4 was not intended to condition voting rights on ability to pay LFOs.
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44. Florida has been an ignominious outlier among states because of the breadth of, and racial disparities present in, its disenfranchisement. Prior to Amendment 4’s passage, Florida was one of just four states that permanently disenfranchised its citizens for committing a single felony offense. Br. for The Sentencing Project as Amicus Curiae (“Brief for Sentencing Project”), Hand v. Scott, No. 18-11388, 2018 WL 3328534, at *5 (11th Cir. June 28, 2018). Florida disenfranchised a higher percentage of its citizens than any other state in the United States and was responsible for more than 25 percent of all U.S. citizens disenfranchised nationwide. Id. at *14–*15. As of November 2016, more than 1.6 million Floridians—about 92 percent of whom had already completed their terms of sentence, id., were disenfranchised on account of a felony conviction, comprising “[m]ore than one-tenth of Florida’s voting population,” Hand, 285 F. Supp. 3d at 1310 (emphasis in original).
45. The racial disparities within the disenfranchised community are pervasive and deeply entrenched.5 Prior to Amendment 4’s passage, “[m]ore than
5 There was widespread and mainstream media coverage of these racial disparities during the Amendment 4 campaign. See, e.g., Gabby Deutch, Florida Felons Want Their Voting Rights Restored, The Atlantic (Sept. 13, 2018), https://www.theatlantic.com/politics/archive/2018/09/florida-felons-want-theirvoting-rights-restored/570103/; see also Steve Bousquet et al., 1.2 Million Floridians Have a Lot Riding on Passage of Amendment 4, Miami Herald (Nov. 2, 2018), https://www.miamiherald.com/news/politics-government/state-politics/ article221021940.html.
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one in five of Florida’s African American voting-age population” could not vote. Id. One reason for this staggering percentage is that Black Floridians are more likely to be arrested, charged, convicted, and face harsher sentences than white Floridians. See Racial Bias in Florida’s Electoral System, Brennan Ctr. for Just. & Fla. Rights Restoration Coal. (Jan. 2006), https://www.brennancenter.org/sites /default/files/legacy/d/download_file_9477.pdf; see also Nick Petersen et. al, Unequal Treatment: Racial and Ethnic Disparities in Miami-Dade Criminal Justice at 5, ACLU of Fla. – Greater Miami Chapter (July 2018), https://www.aclufl.org/sites/default/files/aclufl_unequaltreatmentreport2018.pdf. While Black people comprised 16 percent of Florida’s population in 2016, they made up nearly 33 percent of all those disenfranchised by a felony conviction. Erika L. Wood, Florida: An Outlier in Denying Voting Rights (“Wood”) 1, 3 Brennan Ctr. for Just. (2016), https://www.brennancenter.org/sites/default/files /publications/Florida_Voting_Rights_Outlier.pdf.
46. Florida has a long, troubling history with voter suppression tactics, many explicitly motivated by racial discrimination—including the very felony disenfranchisement provision revised by Amendment 4. In its 1865 constitution, Florida “explicitly limited the right to vote to ‘free white males.’” Id. at 4. A year later, Florida became one of ten former Confederate states to reject the Fourteenth Amendment to the U.S. Constitution, and thus, the constitutional mandate that no
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state can deny any person the equal protection of the laws. Id. In 1868, after Congress mandated that Florida adopt a constitution without an explicitly racially discriminatory suffrage rule, Florida ratified a constitution that permanently banned individuals with felony convictions from voting, a provision that Florida paired with the Black Codes, which increased the number of felonies and “increased prosecution . . . for certain crimes the legislature believed were more likely to be committed by freed blacks.” Id. at 4–5.6 The intent of these measures, which came in the immediate aftermath of the abolition of slavery, “was quite clear: to eliminate as many black voters as possible.” Tim Elfrink, The Long, Racist History of Florida’s Now-Repealed Ban on Felons Voting, Wash. Post (Nov. 7. 2018), https://www.washingtonpost.com/nation/2018/11/07/long-racisthistory-floridas-now-repealed-ban-felons-voting/?utm_term=.aa37bdf36300 (quoting Darryl Paulson, emeritus professor of government at the University of South Florida). In 1889, Florida became the first state to adopt a poll tax, followed shortly after by other Jim Crow voter suppression tactics such as literacy tests and residency requirements. See id. Florida’s voter suppression tactics effectuated their purpose; in 1940, only 3 percent of Florida’s Black population was registered to
6 See Timbs v. Indiana, 139 S. Ct. 682, 689–90 (2019) (“Among these laws’ provisions were draconian fines for violating broad proscriptions on ‘vagrancy’ and other dubious offenses. When newly freed [enslaved people] were unable to pay imposed fines, States often demanded involuntary labor instead.”) (citations omitted).
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vote. Id. The history of discrimination and vestiges of Jim Crow underlying Florida’s felon disenfranchisement statute were known and expressly acknowledged by Florida lawmakers during the legislative debate over SB7066. See, e.g., Video: April 24, 2019 House Sess. (“April 24 House Hearing”) at 5:25:05, https://www.myfloridahouse.gov/VideoPlayer.aspx?eventID=2443575804 _2019041282 (testimony from Rep. Jacquet) (“In 1868, we decided in order to limit the voice of certain communities, to set aside a certain population, this was the strategy.”).
47. The ramifications of this history continue into the present. Wealth disparities persist for Black and Latinx families in Florida as compared to white families. Alan J. Aja et al., The Color of Wealth, The Kirwan Institute, Samuel DuBois Cook Center on Social Equity, and Insight Center for Community Economic Development 1, 7—10 (2019), http://kirwaninstitute.osu.edu/wp-content /uploads/2019/02/The-Color-of-Wealth-in-Miami-Metro.pdf; How Families of Color are Faring in Florida, Corp. for Enterprise Dev. (Jan. 2016), https://catalystmiami.org/wp-content/uploads/2016/02/racial-disparity-FL.pdf. The Black unemployment rate is twice as high in Florida when compared to the white unemployment rate. Aja at 39–40.
48. There are a multitude of collateral consequences triggered by a felony conviction, including ineligibility for federally subsidized housing, driver’s
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license suspension, and employment barriers. These collateral consequences make the financial circumstances of returning citizens far less tenable, hampering reentry and leaving them with limited resources to pay outstanding LFOs.
II. Florida’s Voter Registration Process 49. Once Amendment 4 became effective, Floridians who had their
rights restored by operation of the amendment could register to vote using the same process as all other voters.
50. Before SB7066, to register to vote, an individual must first obtain a voter registration form in hard copy or online. See Fla. Stat. §§ 97.052; 97.0525. This form is statewide and is currently Form DS-DE #39, R1s-2.040, F.A.C., available at https://dos.myflorida.com/media/693757/dsde39.pdf (last visited May 24, 2019).
51. The form gave the applicant the option to check a box with the following statement: “I affirm that I am not a convicted felon, or if I am, my right to vote has been restored.” Id. (emphasis added).
52. Voter registration forms were “designed so that convicted felons whose civil rights have been restored . . . are not required to reveal their prior conviction or adjudication.” Fla. Stat. § 97.052(2)(u).
53. SB7066 amends Florida’s voter registration form to give returning citizens three options—one stating that an individual has “never been convicted of
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a felony,” a second stating that an individual’s “voting rights have been restored by

the Board of Executive Clemency,” and a third stating that an individual’s “voting

rights have been restored pursuant to [Amendment 4].” Id. § 97.052(2)(t). There is

no box for individuals who lose their voting rights due to a felony conviction in

another state and have their rights restored by that state before moving to Florida.

See Dep’t of State Advisory Opinion 04-05, 2–3 (May 27, 2004), available at

http://opinions.dos.state.fl.us/searchable/pdf/2004/de0405.pdf (“Those persons

convicted of felonies outside of Florida whose voting rights were restored by the

state wherein the felony was committed, may register to vote in Florida. No

evidence of the civil rights restoration is required at the time of registration.”).

54. Applicants with a prior felony conviction who have completed “all

terms of sentence” need not provide affirmative evidence that their voting rights

have been restored beyond these affirmations. As the Florida Department of State,

Division of Elections explained in a formal Advisory Opinion:

Id. at 2.

Felons who have had their rights restored, whether they were convicted in Florida or in another state, do not need to present evidence of restoration of rights at the time of application for voter registration. Checking the appropriate box on the voter registration application representing that although they are convicted felons, their civil rights have been restored, and signing the oath included in the application affirming that the information provided is correct, is sufficient. Such representations are all that is required under the Florida election laws.

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55. Florida SOEs are required to accept voter registration applications from all applicants in their county offices. Fla. Stat. § 97.053(1). An application is complete, and should be approved, (a) when “all information necessary to establish the applicant’s eligibility pursuant to § 97.041 is received by a voter registration official,” and (b) when that information is “verified pursuant to” Id. § 97.053(6). Id. § 97.053(2).
56. All voter registration applications received by a voter registration official must be entered into the statewide registration system within 13 days of receipt, at which point it “shall be immediately forwarded to the appropriate supervisor of elections.” Id. § 97.053(7). Upon receipt of a voter registration application, the SOE “must notify [the] applicant of the disposition of the . . . application within 5 business days after voter registration information is entered into the statewide voter registration system.” Id. § 97.073(1).
57. The SOE’s notification “must inform the applicant that the application has been approved, is incomplete, has been denied, or is a duplicate of a current registration.” Id. The mailing of a voter information card “constitutes notice of approval of registration.” Id. “If the application is incomplete, the supervisor must request that the applicant supply the missing information using a voter registration application signed by the applicant.” Id.
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58. The voter registration process is a uniquely effective way for thirdparty voter registration organizations to communicate nonpartisan political messages and encourage fellow citizens to participate in the political process. Voter registration activities provide the opportunity for organizational Plaintiffs’ members and volunteers, and other third-party voter registration organizations, to exercise their First Amendment rights.
III. Challenged Provisions of SB7066 59. SB7066 creates two classes of citizens: those who can afford to have
their voting rights restored and those who are too poor to vote, a disproportionate number of whom are racial minorities.
60. In practice, SB7066 would maintain long-term—and in many cases permanent—disenfranchisement for a large majority of returning citizens. Many individuals with debt incurred as a result of a conviction are indigent and will not have the means to pay their LFOs immediately (or ever). See Alicia Bannon et al., Criminal Justice Debt: A Barrier to Reentry, Brennan Ctr. for Just. 1, 4 (2010), http://www.brennancenter.org/sites/default/files/legacy/Fees%20and%20Fines %20FINAL.pdf (An estimated “80–90 percent of those charged with criminal offenses qualify for indigent defense.”). And even for those returning citizens who are not indigent, many have incurred massive fines, fees, or restitution obligations
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that they cannot pay in full immediately, which means that they would be
disenfranchised in election after election due to their inability to pay.
61. Even though many returning citizens in Florida have been convicted
in federal or out-of-state courts, the LFOs imposed under Florida law provide
important context for understanding the burdens imposed by SB7066. Persons
convicted in Florida state courts can be assessed fines, fees, costs, and restitution.
Courts assess fines in addition to, or, where authorized by statute, in lieu of, other
penalties, including incarceration. See Fla. Stat. § 775.083(1). “If a defendant is
unable to pay a fine, the court may defer payment of the fine to a date certain.” Id.
Fines are deposited by the clerk of the court in the county’s fine and forfeiture
fund. Id.
62. In Florida, court costs are often mandatory, and offset the costs of maintaining the criminal justice system.7 See Fla. Stat. Ch. 938. The sentencing
7 The Supreme Court has recently observed that state and local governments have an incentive to generate revenue by imposing abusive LFOs on individuals in the criminal justice system. See Timbs, 139 S. Ct. at 689 (“[F]ines may be employed ‘in a measure out of accord with the penal goals of retribution and deterrence,’ for ‘fines are a source of revenue,’ while other forms of punishment ‘cost a State money.’” (quoting Harmelin v. Michigan, 501 U.S. 957, 979, n.9 (1991)); id. (“Perhaps because they are politically easier to impose than generally applicable taxes, state and local governments nationwide increasingly depend heavily on fines and fees as a source of general revenue.”) (quoting Brief of the Am. Civil Liberties Union et al. as Am. Curiae, Timbs v. Indiana, No. 17-1091, 2018 WL 4462202, at *7 (Sep. 10, 2018)). In Florida, between 1996 and 2010, the legislature added more than 20 new categories of LFOs for criminal defendants while simultaneously eliminating most exemptions for those unable to pay. Rebekah
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court has jurisdiction to ensure compliance with court cost obligations. Id. § 938.30(1). Certain costs are statutorily required, irrespective of a defendant’s indigence and inability to pay. See, e.g., id. § 938.27(2)(a) (“The court shall impose the costs of prosecution and investigation notwithstanding the defendant’s present ability to pay.”); § 938.29(1)(b) (“Upon entering a judgment of conviction, the defendant shall be liable to pay the attorney’s fees and costs in full . . . The court shall impose the attorney’s fees and costs notwithstanding the defendant’s present ability to pay.”). A court may defer certain costs after determining a person’s inability to pay or order compliance with a payment schedule. See id. § 938.30(9)-(10). A court may also enforce LFOs in the manner allowed in civil cases, including as a lien against property, which secures the judgment amount as well as interest and costs. See id. § 938.30(6).
63. Florida courts order restitution pursuant to Fla. Stat. §§ 960.29(3)(a)– (b), typically based on the amount of loss sustained by the victim as a result of a defendant’s actions. Id. § 775.089(6)(a). When determining whether to order restitution and its amount, a trial court “shall consider the amount of the loss sustained by any victim as a result of the offense.” Id. “[T]he defendant’s financial resources or ability to pay does not have to be established when the trial court
Diller, The Hidden Cost of Florida’s Criminal Justice Fees 1, 1 Brennan Ctr. for Just. (2010), https://www.brennancenter.org/sites/default/files/legacy/Justice /FloridaF&F.pdf?nocdn=1 (“Diller Report”).
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assesses and imposes restitution.” Noel v. State, 191 So.3d 370, 375 (Fla. 2016) (quotation marks omitted).
64. A criminal court may require that a defendant make restitution within a specified period or in specified installments. Id. § 775.089(3)(b).
65. A court may convert an outstanding restitution from a criminal to a civil obligation if full payment is not made within a given period. See id. § 775.089(3)(d).8
66. SB7066 states that, to complete “all terms of sentence,” there must be “[f]ull payment of restitution ordered to a victim by the court as part of the sentence.” Id. § 98.075(2)(a)(5)(a). SB7066 also requires “[f]ull payment of fines or fees ordered by the court as a part of the sentence or that are ordered by the court as a condition of any form of supervision. Id. § 98.0751(2)(a)(5)(b). The bill specifies that these financial obligations “include only the amount specifically ordered by the court as part of the sentence and do not include any fines, fees, or costs that accrue after the date the obligation is ordered as a part of the sentence.” Id. § 98.0751(2)(a)(5)(c). SB7066 then specifies that “[t]he requirement to pay any
8 Restitution is also reduced to a civil judgment if the court does not order supervision. See Fla. Stat. § 775.089(3)(d). If restitution claims are transferred to a civil lien, victims or the state may enforce that civil restitution lien in the same manner as a judgment in a civil action. Id. § 960.294(2).
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financial obligation specified . . . is not deemed completed upon conversion to a civil lien.” Id. at § 98.0751(2)(a)(5)(e)(III).
67. In other words, SB7066 requires that returning citizens pay all financial obligations specified within a sentencing document before registering to vote, even if the obligation has been converted to a civil judgment, and without requiring any determination that they can pay those financial obligations. Indeed, SB7066 requires full payment of LFOs even in cases where returning citizens have no ability to pay outstanding financial obligations. This requirement is perversely punitive if a court has converted LFOs from criminal to civil obligations. SB7066 also erroneously attempts to redefine LFOs that have been converted to civil liens as a term of a criminal sentence for purposes of extending individuals’ disenfranchisement.9
68. Many returning citizens have outstanding financial obligations that they cannot pay. The Florida Circuit Criminal Courts in 2018 reported that “the collections rate for fines and fees was just 20.55%.” Fines & Fees Justice Center,
9 At a joint House committee hearing, Frederick Lauten, Chief Judge of Florida’s Ninth Judicial Circuit, testified that “enforcement []post-sentence” is a “judicial obligation,” and that “when the lawful authority to detain or supervise a person comes to an end, the sentence is completed in the view of [FDOC], regardless of how that authority came to an end.” Video: Feb. 14, 2019, Jnt. House Meeting of the Criminal J. Subcomm. & the Judiciary Comm. at 1:03:00–1:04:32 https://thefloridachannel.org/videos/2-14-19-joint-house-meeting-of-the-criminaljustice-subcommittee-and-the-judiciary-committee/ (last visited May 26, 2019).
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Annual Assessments and Collections Report [Florida, 2013–2018] (Sept. 30,

2018),

https://finesandfeesjusticecenter.org/articles/annual-assessments-and-

collections-report-florida-2013-2018/. This suggests that the vast majority of

Floridians cannot fully pay their outstanding LFOs and that SB7066 would have a

massive disenfranchising effect. Indeed, more than 83 percent of all court-related

fines and fees are labeled as “minimal collections expectations.” Id. This means the

Clerk of the Courts Association does not anticipate receiving a payment on the debt because of the person’s financial status. Id.10

69. In a superficial response to sustained public criticism of SB7066’s

disenfranchising impact, the bill sponsors purported to add a failsafe that would

allow returning citizens to fulfill their LFOs without full payment if a court

modifies their sentence. See Fla. Stat. § 98.0751(5)(e)(III). But the putative failsafe

is fatally inadequate and ineffectual for multiple reasons.

10 Mainstream media has reported on this reality. One news report, for example, found that between 2013 and 2018 alone, Florida had issued more than $1 billion in felony fines, only 19 percent of which has been paid back per year. Daniel Rivero, Felons Might Have to Pay Hundreds of Millions Before Being Able to Vote in Florida, WLRN Public Radio and Television (Jan. 20, 2019), https://www.wlrn.org/post/felons-might-have-pay-hundreds-millions-being-ablevote-florida. In Miami-Dade County, there are more than $278 million in outstanding court fines from felony convictions; in Palm Beach County, more than $195.8 million in outstanding court fines from felony convictions (including interest) remain outstanding. Id.
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70. First, for residents with out-of-state11 or federal convictions, like Plaintiffs Leicht and Phalen, Florida courts have no jurisdiction to modify or terminate their sentences. In addition, Florida criminal courts may not have authority to waive financial obligations once those obligations are converted to civil liens. See Video: May 3, 2019 House Sess. Part 2 (“May 3 House Hearing”) at 1:24:47, https://thefloridachannel.org/videos/5-3-19-house-session-part-2/ (in which Representative Joe Geller states that “once [a financial obligation] can no longer be enforced by contempt . . . it is no longer part of a criminal sentence”) (last visited May 7, 2019); see also supra note 9.
71. Second, even for in-state convictions, SB7066 permits modification only in two scenarios that are plainly not viable in the vast majority of cases: (1) if a third-party payee approves “through appearance in open court” or “production of notarized consent” the termination of a returning citizen’s LFOs and a court approves, or (2) if a court exercises its discretion to “convert[] the financial obligation to community service,” and the individual completes that community service obligation. Id. § 98.0751(2)(a)(5)(e).
72. Under the first scenario, third party payees—including insurance companies, for-profit debt collection agencies, and private individuals—appear to 11 House bill sponsor Representative James Grant conceded as much when testifying before the state House, stating that the modification remedy “probably doesn’t help” returning citizens with out-of-state convictions. May 3 House Hearing at 13:48. “There’s nothing we can really do about that,” he added. Id.
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have absolute discretion to grant or deny a person’s request for approval to terminate LFOs, for any reason, no reason, or based on personal whims. Id. § 98.0751(2)(e)(II). SB7066 provides no standard or guidance to courts or state agencies on whether to approve termination of LFOs when acting as a payee, thereby inviting arbitrary determinations. And, SB7066 provides no mechanism for approval if a payee is unavailable or non-responsive.
73. Under the second scenario, conversion of LFOs to community service is discretionary: courts are under no obligation to provide an opportunity for a returning citizen to convert her LFOs into a community service obligation, even if that court finds that the individual has no ability to pay. See id. § 938.30(2); see also Video: May 3, 2019 House Sess. Part 2 (“May 3 House Hearing”) at 37:33, https://thefloridachannel.org/videos/5-3-19-house-session-part-2/ (House sponsor Representative James Grant testifying that SB7066 did not require that any courts or circuits have a community service conversion program, stating only that circuits could follow whatever practices they currently undertake).
74. Community service conversion is also rare in practice—the Florida Clerks of Court found in 2008 that “only 16 of 67 counties reported converting any mandatory LFOs imposed in felony cases to community service,” and “[o]f those 16 that did report using community service, 10 converted less than $3000 of mandatory LFOs to community service in one year.” Diller Report at 23. House
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sponsor Representative James Grant conceded that the bill did not require that any courts or circuits have a community service conversion program, stating only that circuits could follow whatever practices they currently undertake. May 3 House Hearing at 37:33.12 Further, Florida law requires that individuals performing courtordered community service get paid at the federal minimum hourly wage, see Fla. Stat. §§ 938.30(2), 318(18)(a)–(b), currently $7.25 per hour—meaning that it will take any returning citizens with more than de minimis financial obligations exceedingly lengthy periods of time to regain their right to vote via community service. When Representative Anna Eskamani raised this latter point—that lowerincome returning citizens would not have a pathway to rights restoration because the hourly rates for community service are so low—House sponsor Representative Grant said only: “that’s not a concern.” May 3 House Hearing at 1:02.
75. Ultimately, in both design and effect, SB7066 disqualifies individual Plaintiffs and members of organizational Plaintiffs Florida NAACP and Orange County NAACP, who have completed the terms of their sentence including
12 The bill sponsor, Senator Jeff Brandes, also acknowledged “there is no definitive standard” but it is simply an option for returning citizens to return to court to petition that their financial hardship be a basis for conversion. Video: May 2 Senate Hearing (“May 2 Senate Hearing”) at 6:30:41, https://www.flsenate.gov /media/VideoPlayer?EventID=2443575804_2019051020&Redirect=true (testimony from Sen. Brandes).
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probation or parole, from eligibility to vote because of outstanding financial obligations that they are unable to pay.
IV. Legislative History of SB7066 76. After Amendment 4’s passage, the House and Senate held hearings
related to HB7089, SB7086, and SB7066, discussed in more detail below. Even though these hearings were truncated because sponsors openly refused to consider key information, the record revealed three overriding flaws with the Legislature’s alteration of the rights guaranteed by Amendment 4. First, the hearings showed that it will be practically impossible for Florida officials to determine who is, and is not, automatically restored and eligible to register under SB7066. For example, Lee Adams, Chief of FDOC’s Bureau of Admission and Release, testified that FDOC in many cases “has no way of knowing” if an individual has not completed her financial obligations after termination of supervision. Video: Feb. 14, 2019, Jnt. House Meeting of the Criminal J. Subcomm. & the Judiciary Comm. at 1:18, https://thefloridachannel.org/videos/2-14-19-joint-house-meeting-of-the-criminaljustice-subcommittee-and-the-judiciary-committee/ (last visited May 7, 2019). Carolyn Timmann, Martin County Clerk of Court, stated that county clerks have “some [] limitations” in their data on returning citizens, the biggest one being restitution, and “in the majority [of cases], we do not [have restitution information].” Id. at 29:56, 54:18. Timmann testified that courts often order
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individuals to pay restitution directly to victims, for which there are no receipts or documentation. Id at 54:18.
77. Representative Grant, who sponsored HB7089, conceded that there is no existing database or repository that conclusively provides SOEs with information about whether a returning citizen paid all LFOs. Video: Apr. 23, 2019, House Floor Hearing (“April 23 Hearing”) at 7:04:00–7:04:07, https://www.myfloridahouse.gov/VideoPlayer.aspx?eventID=2443575804 _2019041264 (“There is no stakeholder in the State of Florida that can serve as a source of truth that somebody completed all terms of their sentence.”); see also Video Feb. 14, 2019, House Comm. Joint Hearing at 1:03:30–1:04:05, https://www.myfloridahouse.gov/VideoPlayer.aspx?eventID=2443575804 _2019021160; May 3 House Hearing at 42:49 (stating that there were “data . . . spread out all over government,” and that there was no “efficient or effective” way for Florida officials to compile that data in one place).
78. Additionally, SB7066 fails to provide any criteria or guidelines for how an SOE is supposed to “verify and make a final determination . . . regarding whether the person who registers to vote is eligible pursuant” to Amendment 4, Fla. Stat. § 98.0751(3)(b) (2019), or to evaluate evidence presented at a hearing to determine the eligibility of a returning citizen when the evidence is questioned or challenged.
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79. Second, legislators heard from returning citizens who were permitted to testify at some committee hearings, all of whom testified that provisions enacted in SB7066 would permanently disenfranchise them based on their inability to pay outstanding LFOs. Legislators heard from Plaintiff Karen Leicht, who testified that she had $58 million in outstanding restitution obligations despite dutifully making monthly payments. Video: Mar. 25, 2019, Hearing of Senate Comm. on Criminal J. (“March 25 Hearing”) at 1:31, https://thefloridachannel.org/videos/3-25-19senate-committee-on-criminal-justice (last visited May 7, 2019). Ms. Leicht testified that at the time her probation officially ended, “it was my complete and total understanding that at that point, when I signed that paper, I was free,” id. at 1:32, but that at first she was too “timorous” to register to vote because she did not “want to be considered to have committed any crime,” id. at 1:36. After her testimony, Senator Jason Pizzo, who represents Ms. Leicht’s state senate district, told her to “go register to vote” and that she would not be prosecuted. Id. at 1:38.13 Legislators also heard from Erica Racz, a returning citizen who spent 13 years in
13 Nothing about Senator Pizzo’s recommendation prevents Florida from attempting to purge Ms. Leicht or any of the other individual Plaintiffs from the voter rolls based on outstanding LFOs. Nothing about Senator Pizzo’s recommendation prevents the State from prosecuting returning citizens with outstanding LFOs who believe that their rights were restored under Amendment 4 and register to vote after July 1, 2019. Senator Brandes stated as much: it would “depend on individual facts” and be “up to the discretion of the prosecutor.” May 2 Senate Hearing at 7:16:28–7:16:51 (colloquy between Senator Rodriquez and Senator Brandes).
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prison and four years on probation, who testified that she “cannot afford” her $57,000 in outstanding financial obligations as a single mother: “You want me to pay the government $57,000 to vote?” Video: Apr. 4, 2019, Hearing of House Comm. on State Affairs (“April 4 Hearing”) at 3:42, https://thefloridachannel.org /videos/4-4-19-house-state-affairs-committee/ (last visited May 7, 2019). And legislators heard from Coral Nichols, a returning citizen who now runs a nonprofit called Empowered to Change, who testified that she has $190,000 in outstanding restitution. “At $100 a month, I will be 190 years old before I am eligible to vote,” she testified. Video: Apr. 9, 2019, Hearing of House Comm. on Judiciary at 3:24, https://thefloridachannel.org/videos/4-9-19-house-committee-on-judiciary/ (last visited May 7, 2019).
80. Public debate among legislators showed that they were plainly aware that SB7066 would disenfranchise voters. At one hearing, for example, Representative Adam Hattersley stated, “we’d create two classes of returning citizens. . . . There would be a minority of well-off individuals who would be able to repay their fines quickly and regain the right to vote; then, there’d be indigent citizens.” April 4 Hearing at 3:49. Representative Michael Grieco warned that the proposed legislation would not be faithful to “the will of the voters,” which was “very clear” that “1.4 million Floridians or more” would have their voting rights restored. Video: Mar. 19, 2019, Hearing of House Subcomm. on Criminal J. at
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1:41,

https://thefloridachannel.org/videos/3-19-19-house-criminal-justice-

subcommittee/ (last visited May 7, 2019).

81. Third, the sponsors of the House and Senate legislation willfully

refused to empirically study or determine how many people would be

disenfranchised on account of their legislation. In the House, sponsor

Representative Grant said that he did not know or care how many people would be

disenfranchised if the legislation passed: “I was asked, have I done a study to know

how many people are impacted by this. I said no. They said, are you willing to take

a study. I said no. And here’s why. I’m happy to review when we’re done,

members. But members, I don’t want to know the impact of this. Because it’s

irrelevant.” April 4 Hearing at 3:57. A month later, he told the full House that he

“intentionally stayed blind to the data of the affected classes.” May 3 House

Hearing at 1:06.

82. In the Senate, when asked how many Floridians have outstanding

financial obligations, bill co-sponsor Senator Keith Perry said that he did not

know. March 25 Hearing at 35:07. These statements suggest that legislators

deliberately chose not to consider specific data documenting the fact that the law

will disenfranchise hundreds of thousands of returning citizens because they are

experiencing poverty, with a stark disproportionate impact based on race. But the

U.S. Supreme Court has recognized that lawmakers may be presumed to be

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familiar with the demographics and socioeconomics of their state. Cf. Shaw v. Reno, 509 U.S. 630, 646 (1993) (“[T]he legislature always is aware of race when it draws district lines, just as it is aware of age, economic status, religious and political persuasion, and a variety of other demographic factors.”). This presumption should be particularly salient in this context, given that HB7089 and SB7086 arose in the House and Senate’s respective Criminal Justice Subcommittees, where members are aware of the racial and socioeconomic demographics of the Florida and federal criminal systems, including the rates of felony disenfranchisement by race, discussed supra. These members are aware that people with felony convictions commonly have LFOs following completion of incarceration and supervision, that the vast majority of LFOs go uncollected by the state because many people cannot pay them, and that persistent wealth disparities exist between Black and non-Black individuals and families in Florida.
83. Similarly, willful avoidance of inconvenient information does not preclude knowledge of such facts, particularly when they are a matter of “common sense.” See United States v. Schaffer, 600 F.2d 1120, 1122 (5th Cir. 1979) (“[D]eliberate ignorance is the equivalent of knowledge.”). The Legislature presumptively knew that SB7066 would disproportionately harm Black citizens.
84. Based on the likely racial and socioeconomic impact of the proposed laws and the difficulties that many returning citizens have in paying LFOs,
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advocates urged both chambers to study the racial and other impact of the bills. See, e.g., Letter from Leah Aden et al., Deputy Dir. of Litig., LDF, to the Fla. Senate (Apr. 30, 2019), https://www.naacpldf.org/wp-content/uploads/NAACPLDF-and-FLorida-NAACP-Opposition-to-SB-7086.pdf; Letter from Leah Aden et al., Deputy Dir. of Litig., LDF, to the Fla. House of Representatives (Apr. 22, 2019), https://www.naacpldf.org/wp-content/uploads/House-of-Representatives _2019-04-22_NAACP-LDF-and-FL-NAACP-Opposition-to-HB-7089_final.pdf.
85. Members of the Black caucus inquired about the racial impact of the bills. See, e.g., April 23 Hearing at 7:05:31-7:05:40, (colloquy between Rep. Driskell and Rep. Grant). As discussed above, Representative Grant went on to state that: “I have intentionally not looked at the numbers.” Id. at 7:06:00–7:06:40.
V. Specific Sequence of Events Leading to SB7066’s Passage 86. During consideration of HB7089 and SB7086, House and Senate
members proposed amendments to each bill that would have mitigated the restrictive and discriminatory impacts of the proposed legislation. Both chambers, however, rejected significantly ameliorative amendments, such as one introduced by Representative McGhee, who is Black, that would have removed the requirement to pay all LFOs. Id. at 8:21:45.
87. On April 29, 2019, Senator Brandes introduced a strike-all amendment to the House bill, HB7089, that included the harshest LFO
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requirements and imposed burdens on SOEs to verify eligibility.14 The strike-all amendment also included new language that was not in previous versions of the House and Senate bills, including changes to the uniform voter registration form, as discussed above.
88. Without further debate on SB7086, on May 2, 2019, Senator Brandes introduced a new strike-all amendment to an entirely separate Senate elections bill—SB7066.
89. This strike-all amendment was a hybrid of the most restrictive aspects of HB7089 and SB7086 and mandated new burdens, discussed supra. These aspects include: requiring the payment of all LFOs, including those converted to civil obligations; placing unfunded mandates and burdens on SOEs; and forcing returning citizens to reveal their felony conviction on the voter registration form.
90. There was no need for such a restrictive LFO requirement. The disconnect between the provisions of SB7066 and the issues it purports to address
14 Tellingly, in a colloquy between Senator Pizzo and Senator Brandes on May 2, Senator Brandes conceded that alternative, less restrictive iterations of the Senate Bill from weeks past effectuated the “will of the electorate,” particularly with respect to those versions’ treatment of the terms of sentence provision. May 2 Senate Hearing at 6:35:50–6:38:38 (colloquy between Senator Pizzo and Senator Brandes).
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support the inference that the proffered justifications are pretext for an impermissible motive.
CLAIMS FOR RELIEF COUNT ONE
Fourteenth Amendment to the U.S. Constitution, as enforced by 42 U.S.C. § 1983
Violation of Fundamental Fairness 91. Plaintiffs re-allege and incorporate by reference each allegation contained in the preceding paragraphs as though fully set forth herein. 92. Section 1 of the Fourteenth Amendment to the U.S. Constitution bars states from depriving “any person of . . . liberty . . . without due process of law” and from depriving “any person within its jurisdiction the equal protection of the laws.” 93. The Due Process and Equal Protection Clauses of the Fourteenth Amendment prohibit states from imposing punishment for non-payment of LFOs without a prior determination that the individual was able to pay and willfully refused to do so. The Fourteenth Amendment’s doctrine of fundamental fairness prevents states from punishing individuals if they fail to do the impossible—satisfy legal financial obligations when they do not have the means to do so. See, e.g., M.L.B. v. S.L.J., 519 U.S. 102 (1996); Bearden v. Georgia, 461 U.S. 660 (1983); Tate v. Short, 401 U.S. 395 (1971); Mayer v. City of Chicago, 404 U.S. 189
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(1971); Williams v. Illinois, 399 U.S. 235 (1970); Griffin v. Illinois, 351 U.S. 12 (1956).
94. Plaintiffs have completed all of the terms of their sentences including parole or probation.
95. Plaintiffs have outstanding civil obligations for court costs, fees, fines, and restitution resulting from a conviction.
96. Mr. Gruver owes $801 in court costs and fees as a result of felony convictions. Mr. Mitchell owes approximately $2,143 in court costs and fees as a result of a felony conviction fourteen years ago when he was seventeen years old. Ms. Riddle owes approximately $1,800 in court costs and fees as a result of felony convictions. Mr. Wrench owes $3,000 in court costs and fees as a result of felony convictions. Ms. Wright owes at least $50,000 in court costs and a fine as a result of a felony conviction. Ms. Leicht owes approximately $58 million in outstanding restitution jointly and severally with her former co-defendants as a result of a conviction. Mr. Phalen owes about $110,000 in outstanding restitution and court costs and fees. Mr. Miller owes $1,221.25 in outstanding court costs and fines. Pastor Tyson owes court costs and fees, though Florida records are unclear about how much he has outstanding. Plaintiffs are unable to pay these obligations.
97. SB7066 violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment by disqualifying Plaintiffs from voting solely for failure to
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pay outstanding LFOs despite the fact that (1) they are unable to pay, and (2) there has been no prior determination that they willfully refused to pay.
98. SB7066 violates the Fourteenth Amendment by conditioning Plaintiffs’ right to vote on payment of LFOs that Plaintiffs cannot pay.
COUNT TWO Fourteenth Amendment to the U.S. Constitution,
as enforced by 42 U.S.C. § 1983 Unconstitutional Discrimination in Violation of Equal Protection 99. Plaintiffs re-allege and incorporate by reference each allegation contained in the preceding paragraphs as though fully set forth herein. 100. SB7066 invidiously discriminates between Florida citizens with a prior felony who can pay their LFOs, and Florida citizens with a prior felony who cannot pay. 101. It is well established that “a citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction.” Dunn v. Blumstein, 405 U.S. 330, 336 (1972); see Bush v. Gore, 531 U.S. 98, 104–05 (2000) (“Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.”). 102. A state “violates the Equal Protection Clause of the Fourteenth Amendment whenever it makes the affluence of the voter or payment of any fee an
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electoral standard.” Harper v. Va. State Bd. of Elections, 383 U.S. 663, 666 (1966); see also Johnson v. Governor of State of Fla., 405 F.3d 1214, 1216 n.1 (11th Cir. 2005) (“Access to the franchise cannot be made to depend on an individual’s financial resources.”) (quoting Harper, 383 U.S. at 668)).
103. The Equal Protection Clause applies to felony disenfranchisement and rights-restoration laws. See Johnson, 405 F.3d at 1230 (“Plaintiffs have a remedy if the state’s [felony disenfranchisement] provision violates the Equal Protection Clause.”).
104. SB7066 unconstitutionally conditions exercise of Plaintiffs’ voting rights on their ability to pay outstanding LFOs, even after Plaintiffs have completed the terms of their sentences and probation.
105. Plaintiffs are not able to pay their outstanding LFOs. 106. There is no rational, let alone compelling, basis for disenfranchising Plaintiffs when they cannot pay LFOs or when they are paying LFOs but cannot afford to complete payment immediately. 107. Plaintiffs’ ability to pay these financial obligations is not germane to their qualification to participate in elections. 108. SB7066 would keep Plaintiffs in limbo and deprived of the right to vote for election after election—often for life—based solely on their lack of wealth, an arbitrary and unconstitutional distinction.
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109. SB7066 serves no legitimate state purpose because it disenfranchises Plaintiffs solely due to inability to pay their LFOs, a distinction not at all connected to participation in elections.
110. For those who cannot pay, disenfranchisement will not foster their payment.
111. Denying the right to vote does not and cannot incentivize payment of LFOs that a person cannot pay.
COUNT THREE Fourteenth Amendment to the U.S. Constitution,
as enforced by 42 U.S.C. § 1983 Unconstitutional Burden on the Fundamental Right to Vote 112. Plaintiffs re-allege and incorporate by reference each allegation contained in the preceding paragraphs as though fully set forth herein. 113. The Fourteenth Amendment safeguards the “precious” and “fundamental” right to vote, Harper, 383 U.S. at 670, and prohibits any encumbrance on the right to vote that is not adequately justified by valid and specific state interests, Anderson v. Celebrezze, 460 U.S. 780, 788–89 (1983). 114. Courts reviewing a challenge to a law that burdens the right to vote “must weigh ‘the character and magnitude of the asserted injury to the right[]’” to vote “against ‘the precise interests put forward by the State as justifications for the burden imposed by its rule,’ taking into consideration ‘the extent to which those
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interests make it necessary to burden the plaintiff’s rights.’” Burdick v. Takushi, 504 U.S. 428, 434 (1992) (quoting Anderson, 460 U.S. at 789).
115. Plaintiffs are registered voters and have the fundamental right to vote.
116. Defendants confirmed Plaintiffs’ eligibility to vote and added Plaintiffs to the registration rolls.
117. As an eligible registered voter, Mr. Gruver voted in the March 2019 Gainesville municipal election.
118. As an eligible registered voter, Mr. Ivey voted in the March and May 2019 Duval County elections.
119. As an eligible registered voter, Pastor Tyson voted in March and April 2019 Tampa municipal elections.
120. SB7066 imposes a severe burden on Plaintiffs’ right to vote. Plaintiffs will be completely, and likely permanently, disenfranchised by Fla. Stat. §§ 98.0751(1)–(2)(a).
121. The severity of SB7066’s burden is heightened because the barrier to the franchise disparately affects those citizens who are already among the most vulnerable: people with a past conviction who lack the means to pay outstanding LFOs.
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122. Plaintiffs’ disenfranchisement under SB7066 does not serve any of the rationales advanced by the Legislature to justify passage, or any other legitimate state interest.
123. Disenfranchising Plaintiffs does not serve to collect debt because SB7066 cannot incentivize payment of a debt that Plaintiffs cannot afford to pay.
124. It is unconstitutionally burdensome for the state to condition Plaintiffs’ fundamental voting rights on their ability to pay the entirety of their LFOs, which they are unable to pay.
125. In addition, due to the lack of accurate, centralized information on outstanding LFOs, it is difficult—if not impossible—for potential registrants to determine whether their debt would disqualify them under SB7066.
126. In order to determine their eligibility, Plaintiffs would have to contact numerous agencies and conduct research of court records. Even with these efforts, it may be impossible for many to determine their eligibility.
127. SB7066 thereby places an unnecessary burden on the right to vote without advancing a valid state interest.
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COUNT FOUR Twenty-Fourth Amendment to the U.S. Constitution,
as enforced by 42 U.S.C. § 1983 Unconstitutional Poll Tax
128. Plaintiffs re-allege and incorporate by reference each allegation contained in the preceding paragraphs as though fully set forth herein.
129. SB7066 violates the prohibition against poll taxes enshrined in the Twenty-Fourth Amendment.
130. The Twenty-Fourth Amendment guarantees that the right to vote “shall not be denied or abridged . . . by reason of failure to pay any poll tax or other tax.” U.S. Const. Am. XXIV.
131. SB7066 requires LFO payment as a condition for exercising the right to vote and without regard to whether Plaintiffs are able to pay.
132. SB7066 excludes returning citizens with outstanding restitution obligations from all means of restoration. Returning citizens cannot apply for restoration through clemency unless they have completed their restitution obligations. Bd. of Exec. Clemency, Rule 9.A. The Florida Supreme Court understood Amendment 4 to limit the Clemency Board’s case-by-case restoration review to “only for those persons convicted of murder or felony sexual offenses, rather than for all felony offenders[.]” Advisory Opinion to the Attorney General, 215 So. 3d at 1207.
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133. Excluding Plaintiffs entirely from any chance at restoration imposes an unconstitutional poll tax on Plaintiffs and other returning citizens.
COUNT FIVE Fourteenth Amendment to the U.S. Constitution,
as enforced by 42 U.S.C. § 1983 Vagueness and Violation of Procedural Due Process 134. Plaintiffs re-allege and incorporate by reference each allegation contained in the preceding paragraphs as though fully set forth herein. 135. A law is unconstitutionally vague in violation of the Due Process Clause if it either (1) “fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits,” Hill v. Colorado, 530 U.S. 703, 732 (2000), or (2) fails to “provide explicit standards for those who apply” the law such that “arbitrary and discriminatory enforcement” is authorized or even encouraged, Grayned v. City of Rockford, 408 U.S. 104, 108–09 (1972). See also League of Women Voters of Fla. v. Browning, 863 F. Supp. 2d 1155, 1160–61 (N.D. Fla. 2012) (finding a “virtually unintelligible” voter registration regulation that is accompanied by substantial penalties is void for vagueness). 136. Florida lacks any accurate or centralized data on outstanding LFOs that prospective voter registrants may access.
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137. Officials from Florida agencies tasked with implementation of Amendment 4 have testified that they do not have sufficient information to carry out SB7066’s requirements.
138. Without a centralized, up-to-date database, returning citizens are often unaware of whether they have any outstanding LFOs or how much LFO debt they owe.
139. For example, Mr. Ivey has outstanding LFOs incurred more than 15 years ago but was unaware of the remaining debt until a reporter informed him of it in 2019.
140. Mr. Mitchell had outstanding LFOs incurred over a decade ago when he was a juvenile, but was unaware of the debt until the Miami-Dade Clerk of Court sent him a notice of the debt at his registration address soon after he registered to vote.
141. Mr. Tyson incurred his LFOs decades ago, but only became aware that some were outstanding after being notified recently by counsel.
142. Though SB7066 specifies that returning citizens need only repay LFOs that were originally imposed by a court as part of sentence, returning citizens may not be able to tell whether outstanding LFOs fall into this category. Charges, including interest, collection fees, and other assessments charged after the fact, are not disaggregated by the courts.
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143. Furthermore, while SB7066 delineates LFOs in terms of the type of fines, fees, and restitution incurred and owed for offenses adjudicated in Florida courts, it provides no information or guidance on analogous financial obligations or civil debt incurred in other states that would be disqualifying for purposes of SB7066.
144. SB7066 violates procedural due process by failing to provide prospective registrants sufficient information or fair warning regarding whether LFOs continue to disqualify them from voting. The absence of this information impermissibly chills Plaintiffs’ exercise of their fundamental right to register and vote.
145. SB7066 violates procedural due process by failing to provide any standards or factors under which an SOE can “verify and make a final determination . . . regarding whether the person who registers to vote is eligible pursuant to [Amendment 4] and this section,” therefore ensuring arbitrary and discriminatory enforcement. Fla. Stat. § 98.0751(3)(b) (2019).
146. SB7066 violates procedural due process by failing to provide any standards or factors under which a prospective voter registrant would be able to seek, or a court would grant, termination of LFOs or conversion to community service hours pursuant to Fla. Stat. § 98.0751(2)(a)(5)(e)(II–III), therefore ensuring arbitrary and discriminatory enforcement.
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147. SB7066 violates procedural due process by failing to provide any mechanism or standard by which a prospective registrant would be able to appeal an adverse determination on a request for termination of financial obligations or conversion to community service.
148. SB7066 violates procedural due process by failing to provide any process for individuals with convictions in other states to seek waiver, termination, or conversion to community service.
COUNT SIX First and Fourteenth Amendments to the U.S. Constitution,
as enforced by 42 U.S.C. § 1983 Burden on Core Political Speech and Associational Rights 149. Plaintiffs re-allege and incorporate by reference each allegation contained in the preceding paragraphs as though fully set forth herein. 150. LWVF has a First Amendment right to speak, associate, and act collectively with others in order to register voters. 151. LWVF cannot determine whether many potential registrants have satisfied their LFOs. LWVF volunteers do not have access to state data to help potential registrants determine whether all terms of their sentences are complete. Some volunteers will not engage in registration activities because of their concerns.
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152. SB7066 also limits the ability of individual Floridians, without specialized training, to assist returning citizens with registering to vote, a civic service that many of LWVF’s members and volunteers have routinely performed of their own accord.
153. SB7066 thus violates LWVF’s constitutional rights to speech and association because the law deters LWVF from engaging in protected voter registration activity. The law prevents LWVF from registering returning citizens who are in fact eligible to vote because LWVF volunteers lack certainty that registrants can affirm that they have completed all terms of their sentences.
154. The success of LWVF’s voter registration drives is severely undermined by uncertainty as to whether a potential registrant has satisfied all LFOs imposed as part of a criminal sentence.
155. As alleged above, SB7066 does not advance any legitimate, much less compelling, state interest.
COUNT SEVEN Article I, § 10 of the U.S. Constitution,
as enforced by 42 U.S.C. § 1983 Retroactive Punishment in Violation of Ex Post Facto Clause 156. Plaintiffs re-allege and incorporate by reference each allegation contained in the preceding paragraphs as though fully set forth herein.
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157. Article 1, Section 10, of the United States Constitution provides that “[n]o state shall . . . pass any . . . ex post facto law” that retroactively punishes or extends sanctions imposed on any citizen.
158. Plaintiffs were each convicted of crimes prior to the passage of SB7066.
159. Plaintiffs’ voting rights were automatically restored by Amendment 4 on January 8, 2019.
160. Plaintiffs were registered to vote pursuant to Article VI, Section 4 of the Florida Constitution prior to the enactment of SB7066.
161. SB7066’s requirement of full payment of all LFOs despite inability to pay is punitive in both intent and effect.
162. State lawmakers referenced the punitive purpose of LFOs in debate and discussion over SB7066. For instance, House sponsor Representative Grant referred to “fines, fees, [and] court costs” as “punishment for a crime.” Apr. 4 Hearing at 2:58. In announcing his decision to sign the bill, Gov. DeSantis stated that, “The only reason you’re paying restitution is because you were convicted of a felony.” News Service of Florida, Amendment 4 Bill: DeSantis Says He’s Ready to Sign, Tampa Bay Times (May 8, 2019), https://www.tampabay.com/floridapolitics/buzz/2019/05/08/amendment-4-bill-desantis-says-hes-ready-to-sign/ ?template=amp/.
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163. Florida’s felony disenfranchisement law has been used for nearly two centuries as a form of criminal punishment.
164. The sanction of disenfranchisement involves an affirmative restraint on Plaintiffs’ right to vote. There is no alternative, non-punitive purpose for disenfranchising individuals who are unable to pay.
165. SB7066 imposes and extends punitive sanctions on Plaintiffs in violation of the Ex Post Facto Clause.
COUNT EIGHT Fourteenth and Fifteenth Amendments to the U.S. Constitution,
as enforced by 42 U.S.C. § 1983 Intentional Race Discrimination 166. Plaintiffs re-allege and incorporate by reference each allegation contained in the preceding paragraphs as though fully set forth herein. 167. The Equal Protection Clause of the Fourteenth Amendment prohibits intentional discrimination on the basis of race. U.S. Const. amend. XIV. The Fifteenth Amendment forbids the denial or abridgment of the right to vote on account of race or ethnicity. U.S. Const. amend. XV. Both constitutional protections guard against any deprivation of the right to vote that is motivated by race. Rogers v. Lodge, 458 U.S. 613, 621–25 (1982). 168. Because a discriminatory motive may hide behind legislation that “appears neutral on its face,” the U.S. Supreme Court articulated several non-
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exhaustive factors to inform an analysis of discriminatory intent: (1) evidence that defendants’ decision bears more heavily on one race than another; (2) the historical background of the decision; (3) the specific sequence of events leading up to the decision; (4) departures from the normal procedural sequence; (5) substantive departures; and (6) legislative history, including “contemporary statements by members of the decision making body, minutes of its meetings, or reports.” Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266–28 (1977).
169. An official action taken for the purpose of discriminating on account of race has no legitimacy under the U.S. Constitution. City of Richmond, Va. v. U.S., 422 U.S. 358, 378–79 (1975).
170. Demonstrating intentional discrimination “does not require a plaintiff to prove that the challenged action rested solely on racially discriminatory purposes.” Arlington Heights, 429 U.S. at 265. Instead, the plaintiff’s burden is to show that the discriminatory purpose was a motivating factor, rather than the primary or sole purpose. Id. at 265–66.
171. Applying the Arlington Heights factors to the evidence reveals that SB7066 was enacted, at least in part, with a racially discriminatory intent to discriminate against Black returning citizens in violation of the U.S. Constitution.
172. The history underlying Florida’s felony disenfranchisement regime, the known and reasonably foreseeable discriminatory impact of SB7066, the
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sequence of events and substantive departures from the normal legislative process which resulted in the enactment of SB7066, and the tenuousness of the stated justifications for SB7066 raise a strong inference of a discriminatory purpose in violation of the Fourteenth and Fifteenth Amendments.
REQUEST FOR RELIEF WHEREFORE Plaintiffs respectfully request the following relief:
a) Declare Fla. Stat. §§ 98.0751(1)–(2)(a), as amended by SB7066, unconstitutional in derogation of the First, Fourteenth, Fifteenth, and Twenty-Fourth Amendments and the Ex Post Facto Clause of the United States Constitution;
b) Temporarily, preliminarily, and permanently restrain and enjoin the State of Florida from enforcing the provision of Fla. Stat. §§ 98.0751(1)–(2)(a);
c) Award Plaintiffs’ attorneys’ fees in this action pursuant to 42 U.S.C. § 1988(b);
d) Award Plaintiffs their costs of suit; and e) Grant such other and further relief as this Court deems just and proper in the
circumstances.

Dated: June 28, 2019

Respectfully Submitted, /s/ Julie A. Ebenstein Julie A. Ebenstein (Fla. Bar No. 91033)
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R. Orion Danjuma* Jonathan S. Topaz* Dale E. Ho* American Civil Liberties Union Foundation, Inc. 125 Broad Street, 18th Floor New York, NY 10004 Phone: (212) 284-7332 Fax: (212) 549-2654 jebenstein@aclu.org odanjuma@aclu.org jtopaz@aclu.org dho@aclu.org
Daniel Tilley (Fla. Bar No. 102882) Anton Marino* American Civil Liberties Union of Florida 4343 West Flagler St., Suite 400 Miami, FL 33134 (786) 363-2714 dtilley@aclufl.org amarino@aclufl.org
Jimmy Midyette (Fla. Bar No. 0495859) American Civil Liberties Union Foundation of Florida 118 W. Adams Street, Suite 510 Jacksonville, FL 32202 904-353-8097 jmidyette@aclufl.org
Leah C. Aden* John S. Cusick* NAACP Legal Defense and Educational Fund, Inc. 40 Rector Street, 5th Floor New York, NY 10006 (212) 965-2200
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laden@naacpldf.org jcusick@naacpldf.org and Wendy Weiser Myrna Pérez Sean Morales-Doyle* Eliza Sweren-Becker* Brennan Center for Justice at NYU School of Law 120 Broadway, Suite 1750 New York, NY 10271 (646) 292-8310 wendy.weiser@nyu.edu myrna.perez@nyu.edu sean.morales-doyle@nyu.edu eliza.sweren-becker@nyu.edu Counsel for Plaintiffs * pro hac vice applications forthcoming
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CERTIFICATE OF SERVICE
I hereby certify that on June 28, 2019, I electronically filed the foregoing with the Clerk of Court by using CM/ECF, which automatically serves all counsel of record for the parties who have appeared.
Additionally, the parties are concurrently being served via email and physical service of summons and complaint at the following addresses:
KIM A. BARTON, In her Official Capacity as Alachua County Supervisor of Elections Josiah T. Walls Building 515 North Main St., Suite 300 Gainesville, FL 32601 kbarton@alachuacounty.us
PETER ANTONACCI, in his Official Capacity as Broward County Supervisor of Elections 115 S. Andrews Ave. Room 102 Fort Lauderdale, FL 33301 elections@browardsoe.org
MIKE HOGAN, In his Official Capacity as Duval County Supervisor of Elections 105 E. Monroe St. Jacksonville, FL 32202 mhogan@coj.net
CRAIG LATIMER, In his Official Capacity as Hillsborough County Supervisor of Elections Fred B. Karl County Center, 601 E. Kennedy Blvd., 16th Floor Tampa, FL 33602 Voter@hcsoe.org
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LESLIE ROSSWAY SWAN, In her Official Capacity as Indian River County Supervisor of Elections 4375 43rd Ave. Vero Beach, FL 32967 Info@voterindianriver.com
MARK EARLEY, In his Official Capacity as Leon County Supervisor of Elections 2990-1 Apalachee Parkway, Tallahassee, FL 32301 Vote@LeonCountyFL.gov
MICHAEL BENNETT, In his Official Capacity as Manatee County Supervisor of Elections 600 301 Boulevard, W., Suite 108 Bradenton, FL 34205 Info@votemanatee.com
CHRISTINA WHITE, In her Official Capacity as Miami-Dade County Supervisor of Elections 2700 NW 87 Ave. Miami, FL 33172 soedade@miamidade.gov
BILL COWLES, In his Official Capacity as Orange County Supervisor of Elections 119 West Kaley St. Orlando, FL 32856 voter@ocfelections.com
RON TURNER, in his Official Capacity as Sarasota County Supervisor of Elections Terrace Building 101 South Washington Blvd. Sarasota, FL 34236 rturner@sarasotavotes.com
LAUREL M. LEE, In her Official Capacity as Secretary of State of Florida Florida Department of State
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R.A. Gray Building 500 South Bronough St. Tallahassee, Florida 32399-0250 secretaryofState@DOS.MyFlorida.com DOS.GeneralCounsel@DOS.MyFlorida.com ASHLEY MOODY, In her Official Capacity as Attorney General of Florida Office of Attorney General State of Florida The Capitol PL-01 Tallahassee, FL 32399-1050 oag.civil.eserve@myfloridalegal.com
/s/ Julie A. Ebenstein Julie A. Ebenstein (Fla. Bar No. 91033) American Civil Liberties Union Foundation, Inc. Voting Rights Project 125 Broad Street, 18th Floor New York, NY 10004 Phone: (212) 284-7332 Fax: (212) 549-2654 jebenstein@aclu.org
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA
Tallahassee Division

JEFF GRUVER, EMORY MARQUIS

)

“MARQ” MITCHELL, BETTY RIDDLE,

) )

KRISTOPHER WRENCH, KEITH IVEY,

)

KAREN LEICHT, RAQUEL WRIGHT,

)

STEVEN PHALEN, CLIFFORD TYSON,

) )

JERMAINE MILLER, CURTIS D.

)

BRYANT, JR., JESSE D. HAMILTON; LATOYA MORELAND; FLORIDA STATE

)
)
) First Amended Complaint

CONFERENCE OF THE NAACP, ORANGE )

COUNTY BRANCH OF THE NAACP, AND

) )

LEAGUE OF WOMEN VOTERS OF

)

FLORIDA,

)

)

Plaintiffs,

)

)

v.

) Case No: 4:19-cv-00302-RH-

) )

MJF

KIM A. BARTON, in her official capacity as Supervisor of Elections for Alachua County,

)

) )

Consolidated Case No. 4:19-cv-

PETER ANTONACCI, in his official capacity as ) 300-RH-MJF

Supervisor of Elections for Broward County, )

MIKE HOGAN, in his official capacity as

) )

Supervisor of Elections for Duval County,

)

CRAIG LATIMER, in his official capacity as )

Supervisor of Elections for Hillsborough County,

) )

LESLIE ROSSWAY SWAN in her official

)

capacity as Supervisor of Elections for Indian )
)
River County, MARK EARLEY in his official )

capacity as Supervisor of Elections for Leon )

County, MICHAEL BENNETT, in his official

) )

capacity as Supervisor of Elections for Manatee )

County, CHRISTINA WHITE, in her official )

capacity as Supervisor of Elections for Miami-

) )

Dade County, BILL COWLES, in his official )

capacity as Supervisor of Elections for Orange )

County, RON TURNER, in his official capacity

) )

as Supervisor of Elections for Sarasota County, )

)

)

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and LAUREL M. LEE, in her official capacity as )

Secretary of State of the State of Florida,

) )

Defendants.

)

FIRST AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF
This lawsuit challenges Florida’s new law, Senate Bill 7066 (“SB7066”), which unconstitutionally denies the right to vote to returning citizens with a past felony conviction based solely on their inability to pay outstanding fines, fees, court costs, or restitution.1 Plaintiffs allege as follows:
PRELIMINARY STATEMENT 1. On November 6, 2018, a supermajority of nearly 65 percent of Florida voters—more than 5 million people—approved one of the largest expansions of voting rights in the United States since the passage of the Voting Rights Act of 1965. In enacting the Voting Restoration Amendment, known as Amendment 4, voters revised the Florida Constitution to abolish permanent disenfranchisement of nearly all citizens convicted of a felony offense. Amendment 4 automatically restored voting rights to over a million previously disenfranchised Floridians who had completed the terms of their sentences including parole or probation—ending a broken system that disenfranchised more than 10 percent of all of the State’s voting-

1 This document refers to persons with felony convictions as “returning citizens” throughout.
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age population and more than 20 percent of its African American voting-age population, Hand v. Scott, 285 F. Supp. 3d 1289, 1310 (N.D. Fla. 2018). Its passage was a historic achievement for American democracy and made clear that Florida voters intended to end lifetime disenfranchisement and give their fellow citizens a voice in the political process.
2. Florida’s prior disenfranchisement provision originated in the 1860s, as part of Florida’s prolonged history of denying voting rights to Black citizens and using the criminal justice system to achieve that goal. From the shadow of that history, voters overwhelmingly chose to expand the franchise to persons previously excluded. Floridians recognized, as the United States Supreme Court has, that “[n]o right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.” Wesberry v. Sanders, 376 U.S. 1, 17 (1964).
3. This action challenges the attempt by certain Florida lawmakers to vitiate Amendment 4’s enfranchising impact by making restoration of voting rights contingent on a person’s wealth. Amendment 4’s language is clear and simple— individuals with a conviction for any felony other than murder or a sexual offense will have their voting rights “restored upon completion of all terms of sentence including parole or probation.” Yet, on June 28, 2019, Governor Ron DeSantis
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signed legislation—which the Senate and House ultimately passed along party line votes—that attempts to drastically claw back the voting rights conferred by Amendment 4 and retract Plaintiffs’ right to vote. SB7066 provides that returning citizens are not eligible to register or vote until they settle any form of legal financial obligation (“LFO”) that arises from their conviction—even if those returning citizens will never be able to pay outstanding balances, and even where their outstanding debt has been converted to a civil lien.
4. SB7066 conditions Plaintiffs’ right to vote on their wealth and penalizes returning citizens who are unable to pay, in violation of the First, Fourteenth, Fifteenth, and Twenty-Fourth Amendments and the Ex Post Facto Clause of the U.S. Constitution. If not enjoined, the law will have a massive disenfranchising effect, and result in sustained, and likely permanent, disenfranchisement for individuals without means.2 It creates two classes of returning citizens: those who are wealthy enough to vote and those who cannot
2 The Florida Clerk of the Courts Association anticipates that 83 percent of all LFOs will remain unpaid, due to the payor’s financial status. See Daniel Rivero, Felons Might Have to Pay Hundreds of Millions Before Being Able to Vote in Florida, WLRN Public Radio and Television (Jan. 20, 2019), https://www.wlrn.org/post/felons-might-have-pay-hundreds-millions-being-ablevote-florida. Similarly, the Florida Circuit Criminal Courts failed to collect nearly 80 percent of all fines and fees in 2018. Fines & Fees Justice Center, Annual Assessments and Collections Report [Florida, 2013–2018] (Sept. 30, 2018) https://finesandfeesjusticecenter.org/articles/annual-assessments-and-collectionsreport-florida-2013-2018/.
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afford to. This disenfranchisement will be borne disproportionately by low-income individuals and racial minorities, due to longstanding and well-documented racial gaps in poverty and employment.
5. The application of SB7066 would also lead returning citizens to experience unequal treatment based solely on the county in which they reside. SB7066 provides no guidance to individual counties about how to treat LFOs associated with returning citizens, and there are no uniform systems in place. As a result, each county has a different system or process for identifying disqualifying LFOs, determining what constitutes an LFO, and even receiving payment for LFOs. Further, the individual county is responsible for determining whether a returning citizen has allegedly violated SB7066 and whether prosecution is appropriate. The result is a Kafkaesque process whereby the same returning citizen, with the same LFOs, could receive two different (and therefore arbitrary) decisions about whether they are legally entitled to vote; the only difference being the returning citizen’s location.
6. SB7066 is further unlawful because it was motivated, at least in part, by a racially discriminatory purpose. It is well-established that people with felony convictions in Florida are disproportionately Black—a product of higher rates of police stops, arrest, prosecution, and conviction of Black citizens in the criminal justice system. It is also well-established that a large majority of returning citizens
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have LFOs they cannot pay now or in the foreseeable future. In addition, Black Floridians with a felony conviction face intersecting barriers to paying off their LFOs due to hurdles to employment and long-standing racial disparities in wealth and employment across the state. Yet, notwithstanding this disproportionate impact on Black returning citizens, before SB7066 was enacted, lawmakers expressly refused to consider evidence about the racial and socioeconomic impacts of the law and the foreseeable harm to Black communities, and rejected ameliorative amendments that they were advised could have lessened the law’s impact on Black returning citizens. There is a strong inference that the law was motivated by discriminatory purposes in violation of the Fourteenth and Fifteenth Amendments to the U.S. Constitution in light of: the history of racial discrimination underlying Florida’s felony disenfranchisement regime; the sequence of events and procedural irregularities leading to SB7066’s enactment; the reasonably foreseeable and known discriminatory impact; and the tenuousness of the stated justifications for SB7066.
7. SB7066 will also prevent or at least chill voter registration and voting among returning citizens because Florida has no unified system to accurately record data on LFOs, and no system to access data on federal or out-of-state financial obligations, leaving returning citizens without any reasonable or accessible method of determining if they would violate the law by registering to vote, or means to
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defend against challenges to their eligibility to vote based on LFOs. Such a scheme violates the Fourteenth Amendment of the U.S. Constitution.
8. SB7066 will also significantly impede organizational Plaintiffs’ ability to engage in voter registration activities and thus directly burdens fundamental First Amendment speech and associational rights, which are inseparable and intertwined aspects of those activities. Organizational Plaintiffs’ members and volunteers must hesitate in conducting their core voter registration activities due to the risk of creating legal liability for returning citizens who have no means to determine whether their LFOs would make them ineligible to register. As a result, members have been deterred from registering voters. The need to inquire into the status of potential applicants’ LFOs has undermined the feasibility of organizational Plaintiffs’ voter registration drives.
9. Floridians spoke loud and clear last November by amending their constitution by citizen initiative, “the most sacrosanct of all expressions of the people,” Fla. Hosp. Waterman, Inc. v. Buster, 984 So. 2d 478, 485–86 (Fla. 2008). It was regularly reported that Amendment 4 would restore voting rights to roughly 1.4 million people in Florida, reflecting the public’s understanding that restoration of voting rights would not be contingent on one’s wealth.
10. SB7066 reinstates a system of lifetime disenfranchisement for a large number of returning citizens—imposing precisely the unjust system that Floridians
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overwhelmingly rejected through Amendment 4. The Florida Legislature’s attempt to retract voting rights and revert to a system of permanent disenfranchisement for the large class of citizens who cannot afford to pay LFOs—and who are disproportionately people of color—is an affront to the U.S. Constitution. It cannot stand.
PARTIES 11. Plaintiff JEFF GRUVER is a U.S. citizen and Florida resident. Mr. Gruver, a 33-year-old white man, works at Grace Marketplace, a facility for the homeless in Gainesville, where he is the director of shelter services assisting shelter residents to access treatment, employment, and permanent housing. He just completed his first semester of a Master of Social Work degree at Florida State University. Nearly ten years ago, Mr. Gruver was struggling with addiction. He was convicted of possession of cocaine in 2008 and was assessed $801 in LFOs— including a court attorney and indigent application fee, court costs, and a fine. Mr. Gruver is unable to pay his outstanding LFOs. Mr. Gruver contacted the Alachua County Clerk of Court over the phone and in person in an attempt to convert his outstanding LFO debt to a community service obligation. He was advised that he could not do so because his LFO debt had been assigned to a private debt collection company. With interest and other fees incurred from collection, Mr. Gruver now owes approximately $2,000 in total. Mr. Gruver’s voting rights were restored on
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January 8, 2019, by operation of Amendment 4. He registered to vote on February 19, 2019, and voted in the Gainesville regular election in March 2019. Mr. Gruver is worried that he will lose his right to vote, and that he might be removed from the voter registration rolls because of his inability to pay his outstanding LFOs.
12. Plaintiff EMORY MARQUIS “MARQ” MITCHELL is a U.S. citizen and Florida resident. Mr. Mitchell, a 29-year-old Black man, is the president and founder of Chainless Change Inc., a non-profit organization that is committed to reducing recidivism by providing resources and support to individuals and families who are impacted by the criminal justice system. Additionally, Mr. Mitchell serves as: a trained Peer Support Specialist at the South Florida Wellness Network, which assists young people and families with co-occurring disorders; a mentor with an employment-readiness nonprofit; and a member of two subcommittees on the Broward County Reentry Coalition. Mr. Mitchell devotes significant time and resources to his public interest endeavors, for which he does not receive a salary. He is eligible to receive assistance under the Supplemental Nutrition Assistance Program. Mr. Mitchell grew up in the foster care system and was in and out of Department of Juvenile Justice custody after the age of twelve. He was convicted of felony escape from a Department of Juvenile Justice facility for an offense he committed at the age of sixteen. He was sentenced to 8 months and 1 day in jail. Weeks after aging out of the foster-care system, he went on to attend Florida
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Memorial University. At twenty-one, he was convicted of battery, a third-degree felony, arising out of an incident in which he was abused by campus security officers while he was a student. Mr. Mitchell had his voting rights restored on January 8, 2019, by operation of Amendment 4. He registered to vote in Broward County on March 9, 2019. To the best of his understanding, Mr. Mitchell has outstanding LFOs stemming from his two felony convictions—a combination of court costs and fines—in the amount of $4,483. He was unaware of his outstanding LFOs from Miami-Dade County until after he registered to vote in March 2019, when the county Clerk of Court sent him a notice. He only became aware of his outstanding LFOs in Okeechobee County on June 28, 2019, when he attempted to obtain a Florida occupational license. Mr. Mitchell attempted to obtain his sentencing documents in Okeechobee County, but was told that he needed to go to the county Clerk of Court’s office in person. Mr. Mitchell fears he might be removed from the registration rolls and denied the right to vote because he is unable to pay his outstanding LFOs.
13. Plaintiff BETTY RIDDLE is a U.S. citizen and Florida resident. Ms. Riddle is a 62-year-old Black woman. She is mother to four adult children, grandmother to twenty-four grandchildren, and great-grandmother to eight. She works as a communications assistant for the Public Defender of Sarasota and helps take care of two of her grandchildren, who are 4 and 8 years old. She dropped out of high school at the age of sixteen, and was convicted of a felony in 1975 at the age of
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seventeen. She spent 22 years caught in a cycle of addiction that led her to a series of convictions, mostly for possession of controlled substances and offenses related to supporting her conviction. At the age of fifty-two, in recovery from her addiction, Ms. Riddle went back to school, earning an Associate’s Degree from the State College of Florida. On January 8, 2019, pursuant to Amendment 4, she became eligible to register to vote for the first time in her life. She was one of the first people to submit her registration form to the Sarasota Supervisor of Elections on January 8, and is now registered to vote. Having her citizenship recognized was one of the proudest moments of her life, and she celebrated the occasion with her daughter. Ms. Riddle did not become aware that she had outstanding LFOs until after SB7066 was enacted in May 2019. She does not know how much she owes in LFOs, because despite extensive efforts over several months, Sarasota and Hillsborough counties have not provided documentation for her pre-1988 convictions. Ms. Riddle requested access to older records but as of October 2019—more than five months later—the Sarasota Clerk’s office has not attempted to fulfill the request. Instead, the Clerk advised Ms. Riddle that: (1) they would need to search for her older records in a separate warehouse—a process that could take months, (2) the Sarasota Clerk’s office was busy fulfilling prior records requests and would provide no timeframe for when she might receive the documents, and (3) documents for her older convictions might not even exist because older records are sometimes purged or destroyed.
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When Ms. Riddle called the Hillsborough County Clerk of Court to obtain documents related to her conviction there from the late-1980s, she was advised that they had no records for her and that she was not in the system at all. To the best of her understanding, based on the Sarasota records from 1990–2001, Ms. Riddle has somewhere between $1,800–$2,000 outstanding in court costs and fees. Because she cannot afford to pay her LFOs, Ms. Riddle fears that she might be removed from the voter registration rolls and deprived of her first opportunity to cast a ballot in Florida, where she has lived almost her entire life. Ms. Riddle fears prosecution if she were to vote, and she would fear prosecution even if she were able to pay off the $1,800– $2,000 of debt of which she is aware, because of the uncertainty about obligations from older convictions.
14. Plaintiff KAREN LEICHT is a U.S. citizen and Florida resident. Ms. Leicht, a 62-year-old white woman, lives in Miami-Dade County, where she works full-time as a senior paralegal at a civil rights law firm that specializes in disability rights work. She is also the main caregiver for her mother, who suffers from Parkinson’s disease. On April 7, 2010, she pled guilty to conspiracy to commit insurance and wire fraud and provided substantial assistance to prosecutors in the case. The court sentenced her to a term of incarceration and ordered her to pay $59,136,990.19 in restitution, which includes the full judgment of restitution ordered against her ten co-defendants—who are jointly and severally liable—even though
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she played only a minor role in the crime. She fulfilled all terms of probation and was released from supervision on January 1, 2013. Within one week of being transferred from federal prison to a Miami-based residential reentry facility, Ms. Leicht had secured full-time employment at her law firm, where she has worked fulltime ever since. Ms. Leicht dutifully makes monthly restitution payments towards the shared $59 million obligation, but has no ability to satisfy the outstanding amount in her lifetime. Ms. Leicht’s voting rights were restored pursuant to Amendment 4 on January 8, 2019. On April 29, 2019, she registered to vote.
15. Plaintiff KEITH IVEY is a U.S. citizen and Florida resident. Mr. Ivey, a 46-year-old Black man, lives in Jacksonville, Florida, where he manages a car dealership, supervising some 10–20 people he contracts with at his business. He qualified for early release after serving eight-and-a-half years of a ten-year sentence for violating Florida’s RICO statute. Even while still incarcerated, Mr. Ivey was a part of a Duval County entrepreneurship and mentorship program, and while at the Transition House in Kissimmee, Florida, he was elected Community Coordinator at the facility. One week after he was released from prison, Mr. Ivey had already enrolled in community college, before beginning his current role managing the car dealership in Jacksonville. Mr. Ivey has conducted speaking engagements to motivate and connect with at-risk youth in Florida and wants to help fellow returning citizens become productive members of society as he has done for himself. He had
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no probation or parole associated with his sentence, but has $400 in outstanding costs from more than 15 years ago. Mr. Ivey was not even aware of these costs until a reporter notified him of them in 2019. Mr. Ivey’s voting rights were restored pursuant to Amendment 4 on January 8, 2019. He registered to vote on that day and, as a registered voter, subsequently voted on two occasions: once in the March 2019 Duval County election and then in the May 2019 runoff election.
16. Plaintiff KRISTOPHER WRENCH is a U.S. citizen and Florida resident. Mr. Wrench, a 42-year-old white man, has struggled with addiction and has been convicted of felony offenses for acts related to his addiction, such as possession of controlled substances and driving with a suspended license. He has been in recovery, and sober, since January 4, 2012. He is now a productive member of his community and takes twelve-step programs into prisons to support those who are still struggling with addiction. Mr. Wrench attended Santa Fe College, where he studied for a degree in bio-medical engineering technology. He works as a painter while his wife is studying for her master’s degree. They are expecting their first child later this year. His voting rights were restored on January 8, 2019, by operation of Amendment 4. He submitted an online voter registration application and was registered to vote in Alachua County on May 4, 2019. As a result of his past convictions, Mr. Wrench owes approximately $3,000 in court costs and fines, which have been assigned to a private debt collection company. Mr. Wrench fears he might
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be removed from the Alachua County voter registration rolls or denied the right to vote because he is unable to pay his outstanding costs and fines.
17. Plaintiff RAQUEL L. WRIGHT is a U.S. citizen and Florida resident. She is a 45-year-old Black woman and mother to a 13-year-old daughter. Ms. Wright works part-time as a legal assistant to the Special Counsel to the Florida State Conference of the NAACP and part-time as the Assistant Secretary of the Indian River County Branch of the NAACP. From time to time, Ms. Wright also tutors students between the ages of seven to nineteen (grades third through twelfth). She has a college degree from Florida A&M University, carries student loan and other debt, and aspires to go to law school. She was convicted of drug trafficking in 2011. Before this conviction, Ms. Wright had been a teacher for more than 15 years. Following her conviction, the State of Florida permanently revoked her teaching certificate and prohibited Ms. Wright from teaching in a Florida public school. After completing the first seven months of her sentence in prison, Ms. Wright served the remaining twenty-two months on a work-release program. During such time, she tutored more than 80 women who passed their GED exams. On January 8, 2019, Ms. Wright’s voting rights were automatically restored through operation of Amendment 4. Soon thereafter, Ms. Wright registered to vote at the Indian River County Supervisor of Elections Office. Having her voting rights restored has been one of her proudest accomplishments. Ms. Wright has outstanding LFOs stemming from
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her sole felony conviction—a combination of court costs and a mandatory fine that has been converted to a civil lien—in the amount of $50,000 for a fine and approximately $4,000 in court costs. Because of Ms. Wright’s inability to fully pay these monetary obligations, she fears she might be removed from the voter registration rolls and barred from participating in the democratic process. Ms. Wright wishes to vote in future elections, including in March 2020, to have a voice in who represents her, to illustrate to her daughter the importance of political participation, and to exercise a fundamental right of American citizenship.
18. Plaintiff STEVEN PHALEN, a 36-year-old white man, is a U.S. citizen and Florida resident. In 2005, Mr. Phalen resided in Wisconsin and was convicted of arson and public endangerment by a Wisconsin state court. The court sentenced him to a term of probation and payment of approximately $150,000 in restitution and court costs and fees, of which he still owes approximately $110,000. Since that time, Mr. Phalen has earned a Ph.D. in organizational and relational communication and established his career doing HVAC logistics for a multinational manufacturer and distributor. In 2015, he moved with his wife to Florida. On November 18, 2017, a Wisconsin court discharged Mr. Phalen from supervision and converted his outstanding LFOs to civil liens. Wisconsin restores voting rights to its residents with a past conviction upon completion of their supervision, irrespective of their outstanding financial obligations. As a Florida resident, Mr. Phalen had his
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rights restored on January 8, 2019, when Amendment 4 became effective. He registered to vote on February 26, 2019. Mr. Phalen makes monthly payments towards his outstanding LFOs, but cannot afford to complete payment at present. He fears he might be removed from the registration rolls as a result of SB7066.
19. Plaintiff CLIFFORD TYSON is a U.S. citizen and Florida resident. He is a 63-year-old Black man and a Pastor. He has been convicted of felonies related to theft or robbery—in 1978, he was sentenced to a 15-year term of probation and ordered to pay $2.00 in court costs and $10.00 per month towards the cost of his supervision; in 1985, he was sentenced to a term of incarceration and ordered to pay $24 in mandatory court costs and fees; in 1997, he was ordered to pay $1,337.94 in restitution and $259.00 in court costs and fees; and in 1998, he was sentenced to a period of community control and probation and ordered to pay $530 in restitution, along with court costs and fees that appear to total to $661.00 (records of the costs and fees assessed for Pastor Tyson’s 1998 conviction are difficult to parse, particularly because two Hillsborough County records reflect differing amounts). He fulfilled all terms of community control and probation and was released from supervision on October 6, 2003. Pastor Tyson is a productive member of his community and has provided pastoral care in prisons across the state. His voting rights were restored on January 8, 2019, by operation of Amendment 4. He registered to vote that day in Hillsborough County and, as a registered voter, subsequently
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voted on two occasions: March 3, 2019 and April 23, 2019. Pastor Tyson has paid off his restitution obligations, but is unable to pay the costs imposed as part of his felony sentences. He was unaware those costs remained unpaid until he was notified by counsel, and it is unclear from records or officials how much he actually has outstanding. Because of Pastor Tyson’s inability to pay these monetary obligations, he fears he might be removed from the voter registration rolls or denied the right to vote.
20. Plaintiff JERMAINE MILLER is a U.S. citizen and Florida resident. He is a 28-year-old Black man and a community advocate. Mr. Miller was convicted of a robbery and trespass in 2015, sentenced to prison, followed by a term of probation, and ordered to pay $223.80 in restitution and $1,221.25 in court costs and fines. Mr. Miller’s probation was terminated on October 31, 2016. His voting rights were restored on January 8, 2019, by operation of Amendment 4. Mr. Miller registered to vote in Leon County on January 21, 2019. Although Mr. Miller has paid $242 in restitution—$18.20 more than the amount ordered—the Florida Department of Corrections contends that he owes a balance of $1.11 because of the 4% surcharge charged on the restitution payments he has made. Mr. Miller still owes $1,221.25 in court costs and fines, and he is unable to pay these outstanding LFOs. Because of Mr. Miller’s inability to pay off these monetary obligations, he fears that he might be removed from the voter registration rolls or denied the right to vote.
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21. Plaintiff CURTIS D. BRYANT, JR. is a U.S. citizen and Florida resident. He is a 38-year-old Black man who lives with his fiancée, children, and other family in Orange County. He is a member of the Orange NAACP. Mr. Bryant had been convicted of non-violent felony drug crimes; the last conviction was over more than a decade ago. To the best of his knowledge and recollection, he owes approximately $10,000 in LFOs—with interest accruing—related to his convictions. For the past eleven years following his incarceration, Mr. Bryant has worked fulltime with the same company in various capacities. Based on his income and obligations, each month he makes a $30 payment to a debt collection company, which, to his understanding, is because the Orange County Clerk of Court has contracted with this agency to collect this debt. Mr. Bryant is unable to pay his outstanding LFOs now or in the future. On January 8, 2019, Mr. Bryant’s voting rights were automatically restored through operation of Amendment 4. He registered to vote on September 24, 2019, and his voter status is currently active. Because of Mr. Bryant’s inability to pay these monetary obligations, he fears he might be removed from the voter registration rolls and barred from participating in the democratic process as a result of SB7066. Mr. Bryant seeks to participate in an election in Orlando this November (with early voting having begun on October 28, 2019), as well as a runoff election in December, if necessary.
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22. Plaintiff JESSE D. HAMILTON is a U.S. citizen and Florida resident. He is a 36-year-old Black man and father to three children who lives in Indian River County. Mr. Hamilton works full-time as a machinist. He has been convicted of multiple felonies. In addition to a term of incarceration, a court assessed at least $130,000 in financial obligations related to his felony convictions. Based on information and belief, much of these costs—now converted to civil debt—resulted from a $50 dollar-a-day incarceration charge that a court imposed for his sevenyear sentence. See, e.g., Tanzina Vega, Costly prison fees are putting inmates deep in debt, CNNMoney (Sept. 18, 2015), https://money.cnn.com/2015/09/18/news/ economy/prison-fees-inmates-debt/index.html. Mr. Hamilton is unable to pay his outstanding LFOs now or in the future. His voting rights were restored on January 8, 2019, by operation of Amendment 4, and his voter registration status became active on June 25, 2019. Because of Mr. Hamilton’s inability to pay these monetary obligations, he fears that he might be removed from the voter registration rolls and barred from participating in the democratic process as a result of SB7066.
23. Plaintiff LATOYA MORELAND is a U.S. citizen and Florida resident. She is a 38-year-old Black woman who lives in Manatee County with her four children. Ms. Moreland was last convicted seven years ago. To the best of her knowledge and recollection, Ms. Moreland was originally assessed $645 in court costs that she still owes. Ms. Moreland relies on disability income and family support
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to make ends meet. Based on her limited income, Ms. Moreland is unable to pay her outstanding LFOs. On January 8, 2019, Ms. Moreland’s voting rights were automatically restored through operation of Amendment 4. She registered to vote on April 30, 2019. On July 24, 2019, Ms. Moreland received a letter from Defendant Supervisor of Elections for Manatee County. Based upon information and belief, the letter stated that Defendant Supervisor of Elections for Manatee County received information from the Manatee County Clerk of Court indicating that Ms. Moreland’s voting rights had not been restored, along with court documents relating to her outstanding LFOs. As of August 1, 2019, Ms. Moreland’s voter status was active based on information found on Defendant Manatee County Supervisor of Election’s website. However, as of today, Ms. Moreland’s voter status cannot be found on that website or is protected from public disclosure. On information and belief, Ms. Moreland appears to have been removed from the active voter registration list. Because of Ms. Moreland’s inability to pay outstanding monetary obligations, she fears that she has been purged and will be barred from participating in the democratic process as a result of SB7066.
24. Plaintiff FLORIDA STATE CONFERENCE OF BRANCHES AND YOUTH UNITS OF THE NAACP (“Florida NAACP”) is a nonprofit, nonpartisan civil rights membership organization in Florida. Florida NAACP is a state conference of branches of the national NAACP (“NAACP”). The NAACP was
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formed in 1909, to remove all barriers of racial discrimination through democratic processes and through the enactment and enforcement of federal, state, and local laws securing civil rights, including laws relating to voting rights. The Florida NAACP’s members are predominantly African American and other minority residents, who reside throughout Florida. The Florida NAACP also has local branch units throughout Florida, including the Orange County Branch NAACP (“Orange County NAACP”), discussed in more detail below, which themselves are membership organizations. Members of a branch are also members of the Florida NAACP. For example, Plaintiff Wright is a member of the Florida NAACP and the Indian River County Branch of the NAACP.
25. The Florida NAACP and its local units have been heavily involved in voter registration and voter education activities for decades and have been credited with registering thousands of voters in the state. The organization conducts statewide voter protection on election days (including the operation, in 2018, of six “satellite centers”). Many members of the state and local branches, including the Orange County NAACP, had their rights restored on January 8, 2019, by operation of Amendment 4. Some members of the state and local NAACPs, including the Orange County NAACP, as well as members of the communities that they serve, include low-income people with felony convictions, who will be permanently disenfranchised by operation of SB7066. These impacted people are unable to
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determine the full amount of the LFOs that they may owe, cannot afford to fully pay all of their LFOs, and are at risk of being purged from the registration rolls when SB7066 becomes effective. Indeed, some Florida NAACP members may become immediately ineligible to vote in their upcoming elections. Curtis D. Bryant, Jr., for example, who is a member of the Orange County NAACP, may be ineligible to vote under SB7066 in a November 2019 municipal elections. Other Florida NAACP members may also be ineligible for the statewide Presidential Preference Primary Election on March 17, 2020. Further, SB7066—which amends Florida’s voter registration form to require that individuals identify as having been convicted of a felony, and the means by which their voting rights were restored—will stigmatize members of the state and local NAACPs, including the Orange County NAACP, and individuals that they serve.
26. Moreover, as a result of SB7066, Florida NAACP and its local units, including the Orange County NAACP, will have to expend much-needed and scarce resources: serving as a plaintiff in this lawsuit to challenge SB7066; informing itself about SB7066 and its scope to be able to assist NAACP members and those that it serves to comply with the law; helping its members and those that it serves determine whether they are eligible to register to vote and vote by identifying people with felony convictions, deciphering via Florida’s systems the extent of any LFOs owed and, with that information, if it is possible to know, working with its members and
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those that it serves to understand what they may owe; understanding itself, as well as helping organizational and community members understand, the changes to the common voter registration form and how to properly complete the form; developing new training materials for volunteers and new public education documents to educate returning citizens about SB7066, how to comply with it, and what resources are available to support their compliance; and identifying resources, including lawyers, in Florida that can help returning citizens seeking to comply with SB7066. Were it not for SB7066, the Florida NAACP, and local units including the Orange County NAACP, would otherwise be spending these resources on its regular activities, such as registering voters, getting out the vote, and conducting statewide voter protection on election days.
27. Plaintiff ORANGE COUNTY BRANCH OF THE NAACP (“Orange County NAACP” or “Branch”), which was established in 1942, is a nonprofit, nonpartisan civil rights membership organization in Florida and local branch of the Florida NAACP, with the same mission, objectives, and voting-related activities as the Florida NAACP. The Orange County NAACP has been heavily involved in voter registration and voter education activities for years, including being credited with registering thousands of voters in Orange County. Members of the Florida NAACP residing in Orange County like Mr. Bryant, who also are members of the Orange County NAACP, will be affected by SB7066 as described above.
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28. Plaintiff LEAGUE OF WOMEN VOTERS OF FLORIDA (the “LWVF” or “League”) is the Florida affiliate of the national League of Women Voters (the “National League”). LWVF is a nonpartisan, not-for-profit corporation organized under the laws of Florida, and a tax-exempt charity pursuant to section 501(c)(4) of the Internal Revenue Code.
29. The mission of LWVF is to promote political responsibility by encouraging informed and active citizen participation in government, including by registering citizens to vote and influencing public policy through education and advocacy. LWVF has thousands of members in Florida and an even greater number of supporters and volunteers, who receive regular communications from the League. The National League has conducted voter registration nationwide since 1920, and LWVF has conducted voter registration in Florida since before 1939. In the past, LWVF has conducted voter registration drives through the auspices of its 29 local Leagues located in cities and counties throughout Florida.
30. Registering new voters is the core mission of LWVF, and an important part of accomplishing the League’s goal of increasing political participation by underrepresented and disenfranchised communities, particularly residents of lowincome, African American, and Hispanic/Latinx communities. LWVF assists voters in filling out voter registration applications, and then collects and submits them to the Supervisors of Elections. LWVF finds that this collection and submission are
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necessary to the success of its voter registration drives. Absent this assistance, LWVF has found that applicants are confused about how to properly fill out their applications and are unsure where and how to submit them, which results in incomplete, and therefore ineffective, registrations that later cause confusion at the polls when would-be voters find out they are not on the rolls. LWVF’s success in registering new voters depends on its ability to not only persuade others of the importance of registering to vote, but also on its ability to assist others to fill in forms properly, to collect the forms, and to deliver completed forms to the appropriate State offices.
31. LWVF volunteers: (i) generally discuss the importance of voting and of civic engagement; (ii) inform other citizens about important issues that will be decided in upcoming elections, such as ballot initiatives and referenda; and (iii) urge other citizens to associate with LWVF and with one another by registering to vote and engaging in meaningful collective action, described above, to advance shared political or social objectives.
32. SB7066 significantly impedes LWVF’s ability to engage in voter registration activities and thus directly burdens LWVF’s fundamental speech and associational rights, which are inseparable and intertwined aspects of those activities. LWVF is careful to avoid inadvertently helping someone register to vote who is ineligible. Some volunteers will not engage in registration activities at all
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because of their concerns about SB7066. Because SB7066 renders LWVF volunteers unable to determine the eligibility of some returning citizens, it prevents LWVF from registering returning citizens who are in fact eligible to vote and whom LWVF would otherwise help register.
33. As a result, LWVF has been forced to divert substantial time and resources away from registration activities to, inter alia: explain the complicated provisions of SB7066 to potential registrants; field inquiries from members and volunteers who cannot determine who is eligible to register under Amendment 4; and develop new training materials for its volunteers and new educational materials for returning citizens.
34. Defendant Secretary of State LAUREL M. LEE is sued in her official capacity as Secretary of State of the State of Florida. The Department of State (“DOS”) “shall have general supervision and administration of the election laws.” Fla. Stat. § 15.13. As Florida’s “chief election officer,” the Secretary must “[o]btain and maintain uniformity in the interpretation and implementation of the election laws.” Id. § 97.012(1). She is responsible for “enforc[ing] the performance of any duties of a county supervisor of elections.” Id. § 97.012(14). She is also responsible for providing “written direction and opinions to the supervisors of elections on the performance of their official duties with respect to the Florida Election Code or rules adopted by the Department of State.” Id. §§ 97.012(4)–(5), (16). She is responsible
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for ensuring state compliance with all election laws. See Democratic Exec. Comm. of Fla. v. Lee, 915 F.3d 1312, 1318 (11th Cir. 2019) (“Because the Secretary is the state’s chief election officer with the authority to relieve the burden on Plaintiffs’ right to vote, she was appropriately sued for prospective injunctive relief.”) (citing Fla. Stat. § 97.012); see also Ex parte Young, 209 U.S. 123 (1908) (permitting injunctive relief against individual state officers in their official capacities).
35. Defendant KIM A. BARTON is the Supervisor of Elections for Alachua County, Defendant PETER ANTONACCI is the Supervisor of Elections for Broward County, Defendant MIKE HOGAN is the Supervisor of Elections for Duval County, Defendant CRAIG LATIMER is the Supervisor of Elections for Hillsborough County, Defendant LESLIE ROSSWAY SWAN is the Supervisor of Elections for Indian River County, Defendant MARK EARLEY is the Supervisor of Elections for Leon County, Defendant MICHAEL BENNETT is the Supervisor of Elections for Manatee County, Defendant CHRISTINA WHITE is the Supervisor for Elections for Miami-Dade County, and Defendant BILL COWLES is the Supervisor of Elections for Orange County, Defendant RON TURNER is the Supervisor of Elections for Sarasota County. These Defendants are responsible for conducting elections and voter registration in their respective counties. SB7066 gives local Supervisors of Elections (“SOEs”) more front-end responsibility for registration, requiring them to “verify and make a final determination . . . regarding
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whether the person who registers to vote is eligible pursuant to [Amendment 4] and this section.” Fla. Stat. § 98.0751(3)(b). While the SOE “may request additional assistance from the [Department of State] in making the final determination,” id. § 98.0751(3)(c), the bill does not give SOEs any additional resources for this new responsibility.
JURISDICTION 36. Plaintiffs bring this action under 42 U.S.C. §§ 1983 and 1988 to redress the deprivation under color of state law of rights secured by the United States Constitution. 37. This Court has original jurisdiction over the subject matter of this action pursuant to 28 U.S.C. §§ 1331 and 1343 because the matters in controversy arise under the Constitution and laws of the United States, and because Plaintiffs bring this action to redress the deprivation, under color of state law, of rights, privileges, and immunities secured by the Constitution of the United States and federal law. 38. Declaratory relief is authorized by 28 U.S.C. §§ 2201 and 2202. 39. Venue is proper in this District under 28 U.S.C. § 1391(b) because all Defendants reside in Florida, and Defendant Barton has her principal place of business in this District.
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40. Under Northern District of Florida Local Rule 3.1(A)–(B), this case is

properly filed in the Gainesville Division of this District because Defendant Barton

has her principal place of business in a county included in the Gainesville Division.

STATEMENT OF FACTS I. Background on the Passage of Amendment 4
41. On November 6, 2018, Florida voters resoundingly and decisively

approved Amendment 4 to the Florida Constitution with 64.55 percent in support.

5,148,926 Floridians of every race and political party voted in favor of Amendment

4, reflecting the clear will of the people that individuals with felony convictions

should re-join the electorate once they complete their sentence. Fla. Div. of

Elections,

Voting

Restoration

Amendment

14-01,

https://dos.elections.myflorida.com/initiatives/initdetail.asp?account=64388

&seqnum=1 (last visited May 24, 2019).

42. The full text of the Amended Article VI, Section 4 (Disqualifications),

reads:

(a) No person convicted of a felony, or adjudicated in this or any other state to be mentally incompetent, shall be qualified to vote or hold office until restoration of civil rights or removal of disability. Except as provided in subsection (b) of this section, any disqualification from voting arising from a felony conviction shall terminate and voting rights shall be restored upon completion of all terms of sentence including parole or probation.

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(b) No person convicted of murder or a felony sexual offense shall be qualified to vote until restoration of civil rights.
Fla. Const., Art. VI, § 4 (italics added). 43. Amendment 4’s language is clear and simple—the constitutional
amendment ensures that individuals with a felony conviction, for a felony crime other than murder or a sexual offense, will have their voting rights “restored upon completion of all terms of sentence including parole or probation.” Id. The Florida Supreme Court, in approving the title and summary of the amendment in 2017, declared that Amendment 4 conveyed to voters “that the chief purpose of the amendment is to automatically restore voting rights to felony offenders, except those convicted of murder or felony sexual offences, upon completion of all terms of their sentence.” Advisory Opinion to the Attorney Gen. Re: Voting Restoration Amendment, 215 So. 3d 1202, 1208 (Fla. 2017) (emphasis added).3
3 There is a presumption that provisions of the Florida Constitution are selfexecuting, see, e.g., Browning v. Fla. Hometown Democracy, Inc., 29 So. 3d 1053, 1064 (Fla. 2010), because “in the absence of such presumption the legislature would have the power to nullify the will of the people expressed in their constitution, the most sacrosanct of all expressions of the people,” Fla. Hosp. Waterman v. Buster, 984 So. 2d 478, 485–86 (Fla. 2008) (quoting Gray v. Bryant, 125 So. 2d 846, 851 (Fla. 1960)). The Florida Supreme Court’s determination that Amendment 4 confers automatic rights restoration clarifies that the constitutional amendment does not require legislation and is self-executing. See Gray, 125 So. 2d at 851 (determining that a constitutional provision is self-executing if the right conferred “may be determined, enjoyed, or protected without the aid of legislative enactment”).
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44. “[T]he power of the people to amend their state constitution by initiative is an integral part of Florida’s lawmaking power.” Brown v. Sec’y of State of Fla., 668 F.3d 1271, 1281 (11th Cir. 2012). The Elections Clause of the U.S. Constitution permits citizens, through the initiative process, to regulate elections as a lawmaking apparatus of a state. Ariz. State Leg. v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2677 (2015). Floridians’ initiative power permits them to constrain the state legislature’s own authority, by amending the state constitution. Brown, 668 F.3d at 1278. They did so in Amendment 4.
45. Self-executing constitutional provisions constrain the Legislature’s authority. While the Legislature may “supplement, protect, or further the availability of the constitutionally conferred right . . . the Legislature may not modify the right in such a fashion that it alters or frustrates the intent of the framers and the people.” Browning v. Fla. Hometown Democracy, Inc., 29 So. 3d 1053, 1064 (Fla. 2010). As such, the Legislature cannot pass any legislation that would reduce (a) the rights guaranteed under Amendment 4, or (b) the number of people to whom they are guaranteed. See id.
46. Amendment 4 was passed on November 6, 2018, and became effective on January 8, 2019.
47. Returning citizens, like individual Plaintiffs and members of organizational Plaintiffs Florida NAACP and Orange County NAACP, began
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registering to vote on January 8, 2019, and subsequently voted in local elections
across Florida.4 Just months after it was enacted, Amendment 4 had already made
Florida’s electorate more representative of its voting-age population by reinstating
the voting rights of many people of color and less affluent individuals. More than
2,000 formerly incarcerated Floridians registered to vote between January and
March 2019, about 44 percent of whom were Black people. Kevin Morris, Analysis:
Thwarting Amendment 4, Brennan Ctr. for Just. 2–3 (May 9, 2019)
https://www.brennancenter.org/sites/default/files/analysis/2019_05
_FloridaAmendment_FINAL-3.pdf. Similarly, the average income of formerly
4 Mainstream and widespread media coverage of the Amendment 4 campaign estimated that it would restore rights to between 1.2 and 1.6 million people in Florida. See, e.g., Steve Bousquet, Connie Humburg & McKenna Oxenden, What’s Riding on Amendment 4 and Voting Rights for Convicted Felons, Tampa Bay Times (Nov. 2, 2018), https://www.tampabay.com/florida-politics/buzz/2018/11/02/ amendment-4-democrats-and-blacks-more-likely-to-have-lost-voting-rights-thanrepublicans-and-whites/ (citing an estimated 1.2 million people affected by Amendment 4); Samantha J. Gross & Elizabeth Koh, What is Amendment 4 on Florida ballot? It Affects Restoration of Felons’ Voting Rights, Miami Herald (Oct. 5, 2018), https://www.miamiherald.com/news/politics-government/election /article219547680.html (estimated 1.6 million); Steven Lemongello, Floridians Will Vote This Fall on Restoring Voting Rights to 1.5 Million Felons, Fla. Sun Sentinel (Jan. 23, 2018), https://www.sun-sentinel.com/news/politics/os-florida-felonvoting-rights-on-ballot-20180123-story.html (estimated 1.5 million). These estimates included returning citizens with outstanding LFOs, reflecting the common understanding—including by the Floridians who voted for it—that Amendment 4 was not intended to condition voting rights on ability to pay LFOs.
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incarcerated Floridians who registered to vote during that time period was $14,000 below the average Florida voter. Id.
48. Florida has been an ignominious outlier among states because of the breadth of, and racial disparities present in, its disenfranchisement. Prior to Amendment 4’s passage, Florida was one of just four states that permanently disenfranchised its citizens for committing a single felony offense. Br. for The Sentencing Project as Amicus Curiae (“Brief for Sentencing Project”), Hand v. Scott, No. 18-11388, 2018 WL 3328534, at *5 (11th Cir. June 28, 2018). Florida disenfranchised a higher percentage of its citizens than any other state in the United States and was responsible for more than 25 percent of all U.S. citizens disenfranchised nationwide. Id. at *14–*15. As of November 2016, more than 1.6 million Floridians—about 92 percent of whom had already completed their terms of sentence, id., were disenfranchised on account of a felony conviction, comprising “[m]ore than one-tenth of Florida’s voting population,” Hand, 285 F. Supp. 3d at 1310 (emphasis in original).
49. The racial disparities within the disenfranchised community are pervasive and deeply entrenched.5 Prior to Amendment 4’s passage, “[m]ore than
5 There was widespread and mainstream media coverage of these racial disparities during the Amendment 4 campaign. See, e.g., Gabby Deutch, Florida Felons Want Their Voting Rights Restored, The Atlantic (Sept. 13, 2018), https://www.theatlantic.com/politics/archive/2018/09/florida-felons-want-theirvoting-rights-restored/570103/; see also Steve Bousquet et al., 1.2 Million
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one in five of Florida’s African American voting-age population” could not vote. Id. One reason for this staggering percentage is that Black Floridians are more likely to be arrested, charged, convicted, and face harsher sentences than white Floridians. See Racial Bias in Florida’s Electoral System, Brennan Ctr. for Just. & Fla. Rights Restoration Coal. (Jan. 2006), https://www.brennancenter.org/sites/default /files/legacy/d/download_file_9477.pdf; see also Nick Petersen et. al, Unequal Treatment: Racial and Ethnic Disparities in Miami-Dade Criminal Justice at 5, ACLU of Fla. – Greater Miami Chapter (July 2018), https://www.aclufl.org/sites/ default/files/aclufl_unequaltreatmentreport2018.pdf. While Black people comprised 16 percent of Florida’s population in 2016, they made up nearly 33 percent of all those disenfranchised by a felony conviction. Erika L. Wood, Florida: An Outlier in Denying Voting Rights (“Wood”) 1, 3 Brennan Ctr. for Just. (2016), https://www.brennancenter.org/sites/default/files/publications/Florida _Voting_Rights_Outlier.pdf.
50. Florida has a long, troubling history with voter suppression tactics, many explicitly motivated by racial discrimination—including the very felony disenfranchisement provision revised by Amendment 4. In its 1865 constitution,
Floridians Have a Lot Riding on Passage of Amendment 4, Miami Herald (Nov. 2, 2018), https://www.miamiherald.com/news/politics-government/state-politics/ article221021940.html.
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Florida “explicitly limited the right to vote to ‘free white males.’” Id. at 4. A year later, Florida became one of ten former Confederate states to reject the Fourteenth Amendment to the U.S. Constitution, and thus, the constitutional mandate that no state can deny any person the equal protection of the laws. Id. In 1868, after Congress mandated that Florida adopt a constitution without an explicitly racially discriminatory suffrage rule, Florida ratified a constitution that permanently banned individuals with felony convictions from voting, a provision that Florida paired with the Black Codes, which increased the number of felonies and “increased prosecution . . . for certain crimes the legislature believed were more likely to be committed by freed blacks.” Id. at 4–5.6 The intent of these measures, which came in the immediate aftermath of the abolition of slavery, “was quite clear: to eliminate as many black voters as possible.” Tim Elfrink, The Long, Racist History of Florida’s NowRepealed Ban on Felons Voting, Wash. Post (Nov. 7. 2018), https://www.washingtonpost.com/nation/2018/11/07/long-racist-history-floridasnow-repealed-ban-felons-voting/?utm_term=.aa37bdf36300 (quoting Darryl Paulson, emeritus professor of government at the University of South Florida). In
6 See Timbs v. Indiana, 139 S. Ct. 682, 689–90 (2019) (“Among these laws’ provisions were draconian fines for violating broad proscriptions on ‘vagrancy’ and other dubious offenses. When newly freed [enslaved people] were unable to pay imposed fines, States often demanded involuntary labor instead.”) (citations omitted).
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1889, Florida became the first state to adopt a poll tax, followed shortly after by other Jim Crow voter suppression tactics such as literacy tests and residency requirements. See id. Florida’s voter suppression tactics effectuated their purpose; in 1940, only 3 percent of Florida’s Black population was registered to vote. Id. The history of discrimination and vestiges of Jim Crow underlying Florida’s felon disenfranchisement statute were known and expressly acknowledged by Florida lawmakers during the legislative debate over SB7066. See, e.g., Video: April 24, 2019 House Sess. (“April 24 House Hearing”) at 5:25:05, https://www.myfloridahouse.gov/VideoPlayer.aspx?eventID=2443575804 _2019041282 (testimony from Representative Jacquet) (“In 1868, we decided in order to limit the voice of certain communities, to set aside a certain population, this was the strategy.”).
51. The ramifications of this history continue into the present. Wealth disparities persist for Black and Latinx families in Florida as compared to white families. Alan J. Aja et al., The Color of Wealth, The Kirwan Institute, Samuel DuBois Cook Center on Social Equity, and Insight Center for Community Economic Development 1, 7—10 (2019), http://kirwaninstitute.osu.edu/wp-content/uploads /2019/02/The-Color-of-Wealth-in-Miami-Metro.pdf; How Families of Color are Faring in Florida, Corp. for Enterprise Dev. (Jan. 2016), https://catalystmiami.org /wp-content/uploads/2016/02/racial-disparity-FL.pdf. The Black unemployment
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rate is twice as high in Florida when compared to the white unemployment rate. Aja at 39–40.
52. There are a multitude of collateral consequences triggered by a felony conviction, including ineligibility for federally subsidized housing, driver’s license suspension, and employment barriers. These collateral consequences make the financial circumstances of returning citizens far less tenable, hampering reentry and leaving them with limited resources to pay outstanding LFOs.
II. Florida’s Voter Registration Process 53. Once Amendment 4 became effective, Floridians who had their rights
restored by operation of the amendment could register to vote using the same process as all other voters.
54. Before SB7066, to register to vote, an individual must first obtain a voter registration form in hard copy or online. See Fla. Stat. §§ 97.052; 97.0525. This form is statewide and is currently Form DS-DE #39, R1s-2.040, F.A.C., available at https://dos.myflorida.com/media/693757/dsde39.pdf (last visited May 24, 2019).
55. The form gave the applicant the option to check a box with the following statement: “I affirm that I am not a convicted felon, or if I am, my right to vote has been restored.” Id. (emphasis added).
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56. Voter registration forms were “designed so that convicted felons whose civil rights have been restored . . . are not required to reveal their prior conviction or adjudication.” Fla. Stat. § 97.052(2)(u).
57. SB7066 amends Florida’s voter registration form to give returning citizens three options—one stating that an individual has “never been convicted of a felony,” a second stating that an individual’s “voting rights have been restored by the Board of Executive Clemency,” and a third stating that an individual’s “voting rights have been restored pursuant to s. 4, Art. VI of the State Constitution upon the completion of all terms of [their] sentence, including parole or probation.” Id. § 97.052(2)(t). The form does not contain the words “Amendment 4,” as the Voting Restoration Amendment is commonly known, referring instead to it by the cryptic legal citation “s. 4, Art. VI.” Moreover, there is no box for individuals who lose their voting rights due to a felony conviction in another state and have their rights restored by that state before moving to Florida. See Dep’t of State Advisory Opinion 04-05, 2–3 (May 27, 2004), available at http://opinions.dos.state.fl.us/searchable/pdf/2004/ de0405.pdf (“Those persons convicted of felonies outside of Florida whose voting rights were restored by the state wherein the felony was committed, may register to vote in Florida. No evidence of the civil rights restoration is required at the time of registration.”).
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58. Some counties now permit applicants to use the old or new form, pursuant to guidance from the Division of Elections that the old forms would be accepted. On information and belief, other counties require that applicants use only the amended form. As of the date of this Amended Complaint, only the amended form is available on the Department of State website. See Florida Online Voter Registration System, Dep’t of State, https://registertovoteflorida.gov/ eligibilityreactive (last visited Oct. 29, 2019); Form DS-DE #39, R1s-2.040, F.A.C., https://dos.myflorida.com/media/693757/dsde39.pdf (last visited Oct. 29, 2019).
59. As a result, on information and belief, the registration of eligible applicants with out-of-state convictions is not, or will not, be uniform among counties. In some counties, eligible applicants with out-of-state convictions will be unable to complete the registration form, while in others they will be able to register.
60. Applicants with a prior felony conviction who have completed “all terms of sentence” need not provide affirmative evidence that their voting rights have been restored beyond these affirmations. As the Florida Department of State, Division of Elections explained in a formal Advisory Opinion:
Felons who have had their rights restored, whether they were convicted in Florida or in another state, do not need to present evidence of restoration of rights at the time of application for voter registration. Checking the appropriate box on the voter registration application representing that although they are convicted felons, their civil rights have been restored, and signing the oath included in the application affirming that the information provided is correct, is sufficient. Such
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Id. at 2.

representations are all that is required under the Florida election laws.

61. Florida SOEs are required to accept voter registration applications

from all applicants in their county offices. Fla. Stat. § 97.053(1). An application is

complete, and should be approved, (a) when “all information necessary to establish

the applicant’s eligibility pursuant to § 97.041 is received by a voter registration

official,” and (b) when that information is “verified pursuant to” Id. § 97.053(6). Id.

§ 97.053(2).

62. All voter registration applications received by a voter registration

official must be entered into the statewide registration system within 13 days of

receipt, at which point it “shall be immediately forwarded to the appropriate

supervisor of elections.” Id. § 97.053(7). Upon receipt of a voter registration

application, the SOE “must notify [the] applicant of the disposition of the . . .

application within 5 business days after voter registration information is entered into

the statewide voter registration system.” Id. § 97.073(1).

63. The SOE’s notification “must inform the applicant that the application

has been approved, is incomplete, has been denied, or is a duplicate of a current

registration.” Id. The mailing of a voter information card “constitutes notice of

approval of registration.” Id. “If the application is incomplete, the supervisor must

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request that the applicant supply the missing information using a voter registration application signed by the applicant.” Id.
64. The voter registration process is a uniquely effective way for thirdparty voter registration organizations to communicate nonpartisan political messages and encourage fellow citizens to participate in the political process. Voter registration activities provide the opportunity for organizational Plaintiffs’ members and volunteers, and other third-party voter registration organizations, to exercise their First Amendment rights.
III. Challenged Provisions of SB7066 65. SB7066 creates two classes of citizens: those who can afford to have
their voting rights restored and those who are too poor to vote, a disproportionate number of whom are racial minorities.
66. In practice, SB7066 would maintain long-term—and in many cases permanent—disenfranchisement for a large majority of returning citizens. Many individuals with debt incurred as a result of a conviction are indigent and will not have the means to pay their LFOs immediately (or ever). See Alicia Bannon et al., Criminal Justice Debt: A Barrier to Reentry, Brennan Ctr. for Just. 1, 4 (2010), http://www.brennancenter.org/sites/default/files/legacy/Fees%20and%20Fines %20FINAL.pdf (An estimated “80–90 percent of those charged with criminal offenses qualify for indigent defense.”). And even for those returning citizens who
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are not indigent, many have incurred massive fines, fees, costs, or restitution obligations that they cannot pay in full immediately, which means that they would be disenfranchised in election after election due to their inability to pay.
67. Even though many returning citizens in Florida have been convicted in federal or out-of-state courts, the LFOs imposed under Florida law provide important context for understanding the burdens imposed by SB7066. Persons convicted in Florida state courts can be assessed fines, fees, costs, and restitution. Courts assess fines in addition to, or, where authorized by statute, in lieu of, other penalties, including incarceration. See Fla. Stat. § 775.083(1). “If a defendant is unable to pay a fine, the court may defer payment of the fine to a date certain.” Id. Fines are deposited by the clerk of the court in the county’s fine and forfeiture fund. Id.
68. In Florida, court costs are often mandatory. See Fla. Stat. Ch. 938. The sentencing court has jurisdiction to ensure compliance with court cost obligations, id. § 938.30(1), but no discretion about whether to impose them. In fact, certain costs are statutorily required irrespective of a defendant’s indigence and inability to pay. See, e.g., id. § 938.27(2)(a) (“The court shall impose the costs of prosecution and investigation notwithstanding the defendant’s present ability to pay.”); § 938.29(1)(b) (“Upon entering a judgment of conviction, the defendant shall be liable to pay the attorney’s fees and costs in full . . . The court shall impose the
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attorney’s fees and costs notwithstanding the defendant’s present ability to pay.”). In addition, certain costs—including the application fee for court-appointed counsel—are imposed and must be paid even prior to conviction. See, e.g., Fla. Stat. § 27.52(1)(a)(5)(b).
69. In short, these LFOs are taxes imposed to fund the government and the judicial system.
70. Indeed, Florida’s Constitution requires that the State’s judicial branch fund itself through the imposition of fees and costs (which are distinct from fines and restitution). See Fla. Const., Art. V, § 14 (“All funding for the offices of the clerks of the circuit and county courts performing court-related functions, except as otherwise provided in this subsection and subsection (c), shall be provided by adequate and appropriate filing fees for judicial proceedings and service charges and costs for performing court-related functions as required by general law.”).
71. Some of the costs and fees charged by courts are ultimately channeled to the general revenue of the State.7 In fact, the Clerks of Court for Hillsborough,
7 The Department of Revenue has required that certain fees and costs ought to be remitted from Clerks to the State as general revenue. See, e.g., Florida Revenue Estimating Conference 2019 Florida Tax Handbook at 38, http://edr.state.fl.us/ content/revenues/reports/taxhandbook/taxhandbook2019.pdf (explaining: “The 67 Clerks of the Court collect fees, service charges, and fines imposed pursuant to law. A portion of these fees, service charges, and fines are remitted monthly to the Florida Department of Revenue for deposit into the General Revenue Fund, State Court Revenue Trust Fund, Clerks of the Court Trust Fund, and various other state trust funds. Any excess revenues remaining in the Clerks of the Court Trust Fund in June
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Santa Rosa, and Lee Counties are currently suing the Florida Department of Revenue and Florida Department of Financial Services for what they allege to be an excessive diversion of the costs collected by Clerks to general revenue that deprives the courts of the adequate funding contemplated by Article V, Section 14 of the Florida Constitution. See Hillsborough Clerk Pat Frank Sues State for Taking Millions from Local Courts, Tampa Bay Times (Oct. 22, 2018), https://www.tampabay.com/news/ localgovernment/Hillsborough-Clerk-Pat-Frank-sues-state-for-taking-millionsfrom-local-courts_172877559/.
72. The U.S. Supreme Court has recently observed that state and local governments have an incentive to generate revenue by imposing LFOs on individuals in the criminal justice system. See Timbs, 139 S. Ct. at 689 (“Perhaps because they are politically easier to impose than generally applicable taxes, state and local governments nationwide increasingly depend heavily on fines and fees as a source of general revenue.”) (quoting Brief of the Am. Civil Liberties Union et al. as Am. Curiae, Timbs v. Indiana, No. 17-1091, 2018 WL 4462202, at *7 (Sept. 10, 2018)).
of each year beyond that needed for current year operations are transferred to the General Revenue Fund beginning in January.”) (emphases added).
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73. Florida’s Legislature did just that. Between 1996 and 2010, the Legislature added more than 20 new categories of LFOs for criminal defendants while simultaneously eliminating most exemptions for those unable to pay. Rebekah Diller, The Hidden Cost of Florida’s Criminal Justice Fees 1, Brennan Ctr. for Just. (2010), https://www.brennancenter.org/sites/default/files/legacy/Justice/Florida F&F.pdf?nocdn=1 (“Diller Report”).
74. Prior to Amendment 4, these LFOs were imposed on the very citizens who lacked the ability to oppose these policies at the ballot box. By providing for automatic restoration of voting rights to people targeted by this form of taxation, Amendment 4 represented a significant step in the right direction.
75. But by enacting SB7066, only months after Amendment 4, the State again put the vote out of reach in a particularly unjust way. Now it is the financial obligations themselves, levied as taxes against returning citizens, that prevent them from voting. It is not simply taxation without representation, but taxation that denies representation.
76. Regardless of whether it is proper for Florida to establish a funding system that effectively taxes those who interact with the courts, but SB7066 improperly denies the right to vote based on the failure to pay such taxes and irrespective of ability to pay.
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77. In some instances, a court may defer certain costs after determining a person’s inability to pay or order compliance with a payment schedule. See id. § 938.30(9)–(10). A court may also enforce LFOs in the manner allowed in civil cases, including as a lien against property, which secures the judgment amount as well as interest and costs. See id. § 938.30(6).
78. Judges often convert LFOs to civil liens based on a determination that the defendant is unable to pay such assessments.
79. Florida courts order restitution pursuant to Fla. Stat. §§ 960.29(3)(a)– (b), typically based on the amount of loss sustained by the victim as a result of a defendant’s actions. Id. § 775.089(6)(a). When determining whether to order restitution and its amount, a trial court “shall consider the amount of the loss sustained by any victim as a result of the offense.” Id. “[T]he defendant’s financial resources or ability to pay does not have to be established when the trial court assesses and imposes restitution.” Noel v. State, 191 So.3d 370, 375 (Fla. 2016) (quotation marks omitted).
80. A criminal court may require that a defendant make restitution within a specified period or in specified installments. Id. § 775.089(3)(b).
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81. A court may convert an outstanding restitution from a criminal to a civil obligation if full payment is not made within a given period. See id. § 775.089(3)(d).8
82. SB7066 states that, to complete “all terms of sentence,” there must be “[f]ull payment of restitution ordered to a victim by the court as part of the sentence.” Id. § 98.075(2)(a)(5)(a). SB7066 also requires “[f]ull payment of fines or fees ordered by the court as a part of the sentence or that are ordered by the court as a condition of any form of supervision[.]” Id. § 98.0751(2)(a)(5)(b). The bill specifies that these financial obligations “include only the amount specifically ordered by the court as part of the sentence and do not include any fines, fees, or costs that accrue after the date the obligation is ordered as a part of the sentence.” Id. § 98.0751(2)(a)(5)(c). SB7066 then specifies that “[t]he requirement to pay any financial obligation specified . . . is not deemed completed upon conversion to a civil lien.” Id. at § 98.0751(2)(a)(5)(e)(III).
83. In other words, SB7066 requires that returning citizens pay all financial obligations specified within “the four corners of the sentencing document,”
8 Restitution is also reduced to a civil judgment if the court does not order supervision. See Fla. Stat. § 775.089(3)(d). If restitution claims are transferred to a civil lien, victims or the State may enforce that civil restitution lien in the same manner as a judgment in a civil action. Id. § 960.294(2).
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id. § 98.0751(2)(a), before registering to vote, even if the obligation has been converted to a civil judgment, and without requiring any determination that they can pay those financial obligations. Indeed, SB7066 requires full payment of LFOs even in cases where returning citizens have no ability to pay outstanding financial obligations. This requirement is perversely punitive if a court has converted LFOs from criminal to civil obligations. SB7066 also erroneously attempts to redefine LFOs that have been converted to civil liens as a term of a criminal sentence for purposes of extending individuals’ disenfranchisement.9
84. Counties use different sentencing and judgment forms to document felony convictions, sentences, and LFOs that are assessed at the time of sentencing. Certain counties, including Miami-Dade, interpret the “four corners of the sentencing document” narrowly, to exclude fees and costs depending on where the financial assessments are written within an individual’s dispositional document. Other counties, including Martin County, consider the entire sentencing and judgment packet to constitute the “four corners of the sentencing document.” Still
9 At a joint House committee hearing, Frederick Lauten, Chief Judge of Florida’s Ninth Judicial Circuit, testified that “enforcement []post-sentence” is a “judicial obligation,” and that “when the lawful authority to detain or supervise a person comes to an end, the sentence is completed in the view of [FDOC], regardless of how that authority came to an end.” Video: Feb. 14, 2019, Jnt. House Meeting of the Criminal J. Subcomm. & the Judiciary Comm. at 1:03:00–1:04:32 https://thefloridachannel.org/videos/2-14-19-joint-house-meeting-of-the-criminaljustice-subcommittee-and-the-judiciary-committee/ (last visited May 26, 2019).
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officials in other counties—including, for example, the Supervisor of Elections for Osceola County—are uncertain what the “four corners of the sentencing document” means. Because counties, and judges within some counties, use different forms, and understand this statutory term differently, the registration of applicants who are otherwise similarly situated (e.g., individuals who owe an outstanding amount on precisely the same of fine or fee) will not be uniform among counties, in turn, leading to uneven and arbitrary results.
85. In addition, many returning citizens have outstanding financial obligations that they cannot pay. The Florida Circuit Criminal Courts in 2018 reported that “the collections rate for fines and fees was just 20.55%.” Fines & Fees Justice Center, Annual Assessments and Collections Report [Florida, 2013–2018] (Sept. 30, 2018), https://finesandfeesjusticecenter.org/articles/annual-assessmentsand-collections-report-florida-2013-2018/. This suggests that the vast majority of Floridians cannot fully pay their outstanding LFOs and that SB7066 would have a massive disenfranchising effect. Indeed, more than 83 percent of all court-related fines and fees are labeled as “minimal collections expectations.” Id. This means the Clerk of the Courts Association does not anticipate receiving a payment on the debt because of the person’s financial status. Id.10
10 Mainstream media has reported on this reality. One news report, for example, found that between 2013 and 2018 alone, Florida had issued more than $1 billion in felony fines, only 19 percent of which has been paid back per year. Daniel
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86. In a superficial response to sustained public criticism of SB7066’s disenfranchising impact, the bill sponsors purported to add a failsafe that would allow returning citizens to fulfill their LFOs without full payment if a court modifies their sentence. See Fla. Stat. § 98.0751(5)(e)(III). But the putative failsafe is fatally inadequate and ineffectual for multiple reasons.
87. First, for residents with out-of-state11 or federal convictions, like Plaintiffs Leicht and Phalen, Florida courts have no jurisdiction to modify or terminate their sentences. In addition, Florida criminal courts may not have authority to waive financial obligations once those obligations are converted to civil liens. See Video: May 3, 2019 House Sess. Part 2 (“May 3 House Hearing”) at 1:24:47, https://thefloridachannel.org/videos/5-3-19-house-session-part-2/ (in which Representative Joe Geller states that “once [a financial obligation] can no longer be
Rivero, Felons Might Have to Pay Hundreds of Millions Before Being Able to Vote in Florida, WLRN Public Radio and Television (Jan. 20, 2019), https://www.wlrn.org/post/felons-might-have-pay-hundreds-millions-being-ablevote-florida. In Miami-Dade County, there are more than $278 million in outstanding court fines from felony convictions; in Palm Beach County, more than $195.8 million in outstanding court fines from felony convictions (including interest) remain outstanding. Id. 11 House bill sponsor Representative James Grant conceded as much when testifying before Florida’s House, stating that the modification remedy “probably doesn’t help” returning citizens with out-of-state convictions. May 3 House Hearing at 13:48. “There’s nothing we can really do about that,” he added. Id.
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enforced by contempt . . . it is no longer part of a criminal sentence”) (last visited May 7, 2019); see also supra note 9.
88. Second, even for in-state convictions, SB7066 permits modification only in two scenarios that are plainly not viable in the vast majority of cases: (1) if a third-party payee approves “through appearance in open court” or “production of notarized consent” the termination of a returning citizen’s LFOs and a court approves, or (2) if a court exercises its discretion to “convert[] the financial obligation to community service,” and the individual completes that community service obligation. Id. § 98.0751(2)(a)(5)(e).
89. Under the first scenario, third party payees—including insurance companies, for-profit debt collection agencies, and private individuals—appear to have absolute discretion to grant or deny a person’s request for approval to terminate LFOs, for any reason, no reason, or based on personal whims. Id. § 98.0751(2)(e)(II). SB7066 provides no standard or guidance to courts or state agencies on whether to approve termination of LFOs when acting as a payee, thereby inviting arbitrary determinations. And, SB7066 provides no mechanism for approval if a payee is unavailable or non-responsive.
90. Under the second scenario, conversion of LFOs to community service is discretionary: courts are under no obligation to provide an opportunity for a returning citizen to convert her LFOs into a community service obligation, even if
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that court finds that the individual has no ability to pay. See id. § 938.30(2); see also Video: May 3, 2019 House Sess. Part 2 (“May 3 House Hearing”) at 37:33, https://thefloridachannel.org/videos/5-3-19-house-session-part-2/ (House sponsor Representative James Grant testifying that SB7066 did not require that any courts or circuits have a community service conversion program, stating only that circuits could follow whatever practices they currently undertake).
91. Community service conversion is also rare in practice—the Florida Clerks of Court found in 2008 that “only 16 of 67 counties reported converting any mandatory LFOs imposed in felony cases to community service,” and “[o]f those 16 that did report using community service, 10 converted less than $3000 of mandatory LFOs to community service in one year.” Diller Report at 23. House sponsor Representative James Grant conceded that the bill did not require that any courts or circuits have a community service conversion program, stating only that circuits could follow whatever practices they currently undertake. May 3 House Hearing at 37:33.12 Further, Florida law requires that individuals performing court-ordered community service get paid at the federal minimum hourly wage, see Fla. Stat.
12 The bill sponsor, Senator Jeff Brandes, also acknowledged “there is no definitive standard” but it is simply an option for returning citizens to return to court to petition that their financial hardship be a basis for conversion. Video: May 2 Senate Hearing (“May 2 Senate Hearing”) at 6:30:41, https://www.flsenate.gov /media/VideoPlayer?EventID=2443575804_2019051020&Redirect=true (testimony from Senator Brandes).
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§§ 938.30(2), 318(18)(a)–(b), currently $7.25 per hour—meaning that it will take any returning citizens with more than de minimis financial obligations exceedingly lengthy periods of time to regain their right to vote via community service. When Representative Anna Eskamani raised this latter point—that lower-income returning citizens would not have a pathway to rights restoration because the hourly rates for community service are so low—House sponsor Representative Grant said only: “that’s not a concern.” May 3 House Hearing at 1:02.
92. Ultimately, in both design and effect, SB7066 disqualifies individual Plaintiffs and members of organizational Plaintiffs Florida NAACP and Orange County NAACP, who have completed the terms of their sentence including probation or parole, from eligibility to vote because of outstanding financial obligations that they are unable to pay.
IV. Legislative History of SB7066 93. After Amendment 4’s passage, the House and Senate held hearings
related to HB7089, SB7086, and SB7066, discussed in more detail below. Even though these hearings were truncated because sponsors openly refused to consider key information, the record revealed three overriding flaws with the Legislature’s alteration of the rights guaranteed by Amendment 4. First, the hearings showed that it will be practically impossible for Florida officials to determine who is, and is not, automatically restored and eligible to register under SB7066. For example, Lee
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Adams, Chief of FDOC’s Bureau of Admission and Release, testified that FDOC in many cases “has no way of knowing” if an individual has not completed her financial obligations after termination of supervision. Video: Feb. 14, 2019, Jnt. House Meeting of the Criminal J. Subcomm. & the Judiciary Comm. at 1:18, https://thefloridachannel.org/videos/2-14-19-joint-house-meeting-of-the-criminaljustice-subcommittee-and-the-judiciary-committee/ (last visited May 7, 2019). Carolyn Timmann, Martin County Clerk of Court, stated that county clerks have “some [] limitations” in their data on returning citizens, the biggest one being restitution, and “in the majority [of cases], we do not [have restitution information].” Id. at 29:56, 54:18. Clerk Timmann testified that courts often order individuals to pay restitution directly to victims, for which there are no receipts or documentation. Id at 54:18.
94. Representative Grant, who sponsored HB7089, conceded that there is no existing database or repository that conclusively provides SOEs with information about whether a returning citizen paid all LFOs. Video: Apr. 23, 2019, House Floor Hearing (“April 23 Hearing”) at 7:04:00–7:04:07, https://www.myfloridahouse.gov /VideoPlayer.aspx?eventID=2443575804_2019041264 (“There is no stakeholder in the State of Florida that can serve as a source of truth that somebody completed all terms of their sentence.”); see also Video Feb. 14, 2019, House Comm. Joint Hearing at 1:03:30–1:04:05, https://www.myfloridahouse.gov/VideoPlayer.aspx?eventID=
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2443575804_2019021160; May 3 House Hearing at 42:49 (stating that there were “data . . . spread out all over government,” and that there was no “efficient or effective” way for Florida officials to compile that data in one place).
95. Additionally, SB7066 fails to provide any criteria or guidelines for how an SOE is supposed to “verify and make a final determination . . . regarding whether the person who registers to vote is eligible pursuant” to Amendment 4, Fla. Stat. § 98.0751(3)(b) (2019), or to evaluate evidence presented at a hearing to determine the eligibility of a returning citizen when the evidence is questioned or challenged.
96. Second, legislators heard from returning citizens who were permitted to testify at some committee hearings, all of whom testified that provisions enacted in SB7066 would permanently disenfranchise them based on their inability to pay outstanding LFOs. Legislators heard from Plaintiff Karen Leicht, who testified that she had $58 million in outstanding restitution obligations despite dutifully making monthly payments. Video: Mar. 25, 2019, Hearing of Senate Comm. on Criminal J. (“March 25 Hearing”) at 1:31, https://thefloridachannel.org/videos/3-25-19-senatecommittee-on-criminal-justice (last visited May 7, 2019). Ms. Leicht testified that at the time her probation officially ended, “it was my complete and total understanding that at that point, when I signed that paper, I was free,” id. at 1:32, but that at first she was too “timorous” to register to vote because she did not “want to be considered
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to have committed any crime,” id. at 1:36. After her testimony, Senator Jason Pizzo, who represents Ms. Leicht’s state senate district, told her to “go register to vote” and that she would not be prosecuted. Id. at 1:38.13 Legislators also heard from Erica Racz, a returning citizen who spent 13 years in prison and four years on probation, who testified that she “cannot afford” her $57,000 in outstanding financial obligations as a single mother: “You want me to pay the government $57,000 to vote?” Video: Apr. 4, 2019, Hearing of House Comm. on State Affairs (“April 4 Hearing”) at 3:42, https://thefloridachannel.org/videos/4-4-19-house-state-affairscommittee/ (last visited May 7, 2019). And legislators heard from Coral Nichols, a returning citizen who now runs a nonprofit called Empowered to Change, who testified that she has $190,000 in outstanding restitution. “At $100 a month, I will be 190 years old before I am eligible to vote,” she testified. Video: Apr. 9, 2019, Hearing of House Comm. on Judiciary at 3:24, https://thefloridachannel.org/videos/ 4-9-19-house-committee-on-judiciary/ (last visited May 7, 2019).
13 Nothing about Senator Pizzo’s recommendation prevents Florida from attempting to purge Ms. Leicht or any of the other individual Plaintiffs from the voter rolls based on outstanding LFOs. Nothing about Senator Pizzo’s recommendation prevents the State from prosecuting returning citizens with outstanding LFOs who believe that their rights were restored under Amendment 4 and register to vote after July 1, 2019. Senator Brandes stated as much: it would “depend on individual facts” and be “up to the discretion of the prosecutor.” May 2 Senate Hearing at 7:16:28–7:16:51 (colloquy between Senator Rodriquez and Senator Brandes).
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97. Public debate among legislators showed that they were plainly aware that SB7066 would disenfranchise voters. At one hearing, for example, Representative Adam Hattersley stated, “we’d create two classes of returning citizens. . . . There would be a minority of well-off individuals who would be able to repay their fines quickly and regain the right to vote; then, there’d be indigent citizens.” April 4 Hearing at 3:49. Representative Michael Grieco warned that the proposed legislation would not be faithful to “the will of the voters,” which was “very clear” that “1.4 million Floridians or more” would have their voting rights restored. Video: Mar. 19, 2019, Hearing of House Subcomm. on Criminal J. at 1:41, https://thefloridachannel.org/videos/3-19-19-house-criminal-justice-subcommittee/ (last visited May 7, 2019).
98. Third, the sponsors of the House and Senate legislation willfully refused to empirically study or determine how many people would be disenfranchised on account of their legislation. In the House, sponsor Representative Grant said that he did not know or care how many people would be disenfranchised if the legislation passed: “I was asked, have I done a study to know how many people are impacted by this. I said no. They said, are you willing to take a study. I said no. And here’s why. I’m happy to review when we’re done, members. But members, I don’t want to know the impact of this. Because it’s irrelevant.” April 4 Hearing
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at 3:57. A month later, he told the full House that he “intentionally stayed blind to the data of the affected classes.” May 3 House Hearing at 1:06.
99. In the Senate, when asked how many Floridians have outstanding financial obligations, bill co-sponsor Senator Keith Perry said that he did not know. March 25 Hearing at 35:07. These statements suggest that legislators deliberately chose not to consider specific data documenting the fact that the law will disenfranchise hundreds of thousands of returning citizens because they are experiencing poverty, with a stark disproportionate impact based on race. But the U.S. Supreme Court has recognized that lawmakers may be presumed to be familiar with the demographics and socioeconomics of their state. Cf. Shaw v. Reno, 509 U.S. 630, 646 (1993) (“[T]he legislature always is aware of race when it draws district lines, just as it is aware of age, economic status, religious and political persuasion, and a variety of other demographic factors.”). This presumption should be particularly salient in this context, given that HB7089 and SB7086 arose in the House and Senate’s respective Criminal Justice Subcommittees, where members are aware of the racial and socioeconomic demographics of the Florida and federal criminal systems, including the rates of felony disenfranchisement by race, discussed supra. These members are aware that people with felony convictions commonly have LFOs following completion of incarceration and supervision, that the vast majority of LFOs go uncollected by the State because many people cannot pay them,
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and that persistent wealth disparities exist between Black and non-Black individuals and families in Florida.
100. Similarly, willful avoidance of inconvenient information does not preclude knowledge of such facts, particularly when they are a matter of “common sense.” See United States v. Schaffer, 600 F.2d 1120, 1122 (5th Cir. 1979) (“[D]eliberate ignorance is the equivalent of knowledge.”). The Legislature presumptively knew that SB7066 would disproportionately harm Black citizens.
101. Based on the likely racial and socioeconomic impact of the proposed laws and the difficulties that many returning citizens have in paying LFOs, advocates urged both chambers to study the racial and other impact of the bills. See, e.g., Letter from Leah Aden et al., Deputy Dir. of Litig., LDF, to the Fla. Senate (Apr. 30, 2019), https://www.naacpldf.org/wp-content/uploads/NAACP-LDF-and-Florida-NAACPOpposition-to-SB-7086.pdf; Letter from Leah Aden et al., Deputy Dir. of Litig., LDF, to the Fla. House of Representatives (Apr. 22, 2019), https://www.naacpldf.org/wp-content/uploads/House-of-Representatives_2019-0422_NAACP-LDF-and-FL-NAACP-Opposition-to-HB-7089_final.pdf.
102. Members of the Black caucus inquired about the racial impact of the bills. See, e.g., April 23 Hearing at 7:05:31–7:05:40, (colloquy between Rep. Driskell and Rep. Grant). As discussed above, Representative Grant went on to state that: “I have intentionally not looked at the numbers.” Id. at 7:06:00–7:06:40.
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V. Specific Sequence of Events Leading to SB7066’s Passage 103. During consideration of HB7089 and SB7086, House and Senate
members proposed amendments to each bill that would have mitigated the restrictive and discriminatory impacts of the proposed legislation. Both chambers, however, rejected significantly ameliorative amendments, such as one introduced by Representative McGhee, who is Black, that would have removed the requirement to pay all LFOs. Id. at 8:21:45.
104. On April 29, 2019, Senator Brandes introduced a strike-all amendment to the House bill, HB7089, that included the harshest LFO requirements and imposed burdens on SOEs to verify eligibility.14 The strike-all amendment also included new language that was not in previous versions of the House and Senate bills, including changes to the uniform voter registration form, as discussed above.
105. Without further debate on SB7086, on May 2, 2019, Senator Brandes introduced a new strike-all amendment to an entirely separate Senate elections bill— SB7066.
14 Tellingly, in a colloquy between Senator Pizzo and Senator Brandes on May 2, Senator Brandes conceded that alternative, less restrictive iterations of the Senate Bill from weeks past effectuated the “will of the electorate,” particularly with respect to those versions’ treatment of the terms of sentence provision. May 2 Senate Hearing at 6:35:50–6:38:38 (colloquy between Senator Pizzo and Senator Brandes).
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106. This strike-all amendment was a hybrid of the most restrictive aspects of HB7089 and SB7086 and mandated new burdens, discussed supra. These aspects include: requiring the payment of all LFOs, including those converted to civil obligations; placing unfunded mandates and burdens on SOEs; and forcing returning citizens to reveal their felony conviction on the voter registration form.
107. There was no need for such a restrictive LFO requirement. The disconnect between the provisions of SB7066 and the issues it purports to address support the inference that the proffered justifications are pretext for an impermissible motive.
CLAIMS FOR RELIEF COUNT ONE
Fourteenth Amendment to the U.S. Constitution, as enforced by 42 U.S.C. § 1983
Violation of Fundamental Fairness 108. Plaintiffs re-allege and incorporate by reference each allegation contained in the preceding paragraphs as though fully set forth herein. 109. Section 1 of the Fourteenth Amendment to the U.S. Constitution bars states from depriving “any person of . . . liberty . . . without due process of law” and from depriving “any person within its jurisdiction the equal protection of the laws.” 110. The Due Process and Equal Protection Clauses of the Fourteenth Amendment prohibit states from imposing punishment for non-payment of LFOs
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without a prior determination that the individual was able to pay and willfully refused to do so. The Fourteenth Amendment’s doctrine of fundamental fairness prevents states from punishing individuals if they fail to do the impossible—satisfy legal financial obligations when they do not have the means to do so. See, e.g., M.L.B. v. S.L.J., 519 U.S. 102 (1996); Bearden v. Georgia, 461 U.S. 660 (1983); Tate v. Short, 401 U.S. 395 (1971); Mayer v. City of Chicago, 404 U.S. 189 (1971); Williams v. Illinois, 399 U.S. 235 (1970); Griffin v. Illinois, 351 U.S. 12 (1956).
111. Plaintiffs have completed all of the terms of their sentences including parole or probation.
112. Plaintiffs have outstanding civil obligations for court costs, fees, fines, and restitution resulting from a conviction.
113. Mr. Gruver owes $801 in court costs and fees as a result of felony convictions. Mr. Mitchell owes approximately $4,483 in court costs and fees as a result of two felony convictions, including one from fourteen years ago when he was seventeen years old. Ms. Riddle owes approximately $1,800–$2,000 in court costs and fees as a result of felony convictions—an amount that does not include any potential LFOs from her convictions from the 1970s and 1980s for which county officials have been unable to provide documentation. Mr. Wrench owes $3,000 in court costs and fees as a result of felony convictions. Ms. Wright owes approximately $54,000 in court costs and a fine as a result of a felony conviction.
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Mr. Hamilton owes at least $130,000 in costs as a result of felony convictions. Ms. Leicht owes approximately $58 million in outstanding restitution jointly and severally with her former co-defendants as a result of a conviction. Mr. Phalen owes about $110,000 in outstanding restitution and court costs and fees. Mr. Miller owes $1,221.25 in outstanding court costs and fines. Pastor Tyson owes court costs and fees, though Florida records are unclear about how much he has outstanding. Plaintiffs are unable to pay these obligations.
114. SB7066 violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment by disqualifying Plaintiffs from voting solely for failure to pay outstanding LFOs despite the fact that (1) they are unable to pay, and (2) there has been no prior determination that they willfully refused to pay.
115. SB7066 violates the Fourteenth Amendment by conditioning Plaintiffs’ right to vote on payment of LFOs that Plaintiffs cannot pay.
COUNT TWO Fourteenth Amendment to the U.S. Constitution,
as enforced by 42 U.S.C. § 1983 Unconstitutional Discrimination in Violation of Equal Protection 116. Plaintiffs re-allege and incorporate by reference each allegation contained in the preceding paragraphs as though fully set forth herein.
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117. SB7066 invidiously discriminates between Florida citizens with a prior felony who can pay their LFOs, and Florida citizens with a prior felony who cannot pay.
118. It is well established that “a citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction.” Dunn v. Blumstein, 405 U.S. 330, 336 (1972); see Bush v. Gore, 531 U.S. 98, 104–05 (2000) (“Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.”).
119. A state “violates the Equal Protection Clause of the Fourteenth Amendment whenever it makes the affluence of the voter or payment of any fee an electoral standard.” Harper v. Va. State Bd. of Elections, 383 U.S. 663, 666 (1966); see also Johnson v. Governor of State of Fla., 405 F.3d 1214, 1216 n.1 (11th Cir. 2005) (“Access to the franchise cannot be made to depend on an individual’s financial resources.”) (quoting Harper, 383 U.S. at 668)).
120. The Equal Protection Clause applies to felony disenfranchisement and rights-restoration laws. See Johnson, 405 F.3d at 1230 (“Plaintiffs have a remedy if the state’s [felony disenfranchisement] provision violates the Equal Protection Clause.”).
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121. SB7066 unconstitutionally conditions exercise of Plaintiffs’ voting rights on their ability to pay outstanding LFOs, even after Plaintiffs have completed the terms of their sentences and probation.
122. Plaintiffs are not able to pay their outstanding LFOs. 123. There is no rational, let alone compelling, basis for disenfranchising Plaintiffs when they cannot pay LFOs or when they are paying LFOs but cannot afford to complete payment immediately. 124. Plaintiffs’ ability to pay these financial obligations is not germane to their qualification to participate in elections. 125. SB7066 would keep Plaintiffs in limbo and deprived of the right to vote for election after election—often for life—based solely on their lack of wealth, an arbitrary and unconstitutional distinction. 126. SB7066 serves no legitimate state purpose because it disenfranchises Plaintiffs solely due to inability to pay their LFOs, a distinction not at all connected to participation in elections. 127. For those who cannot pay, disenfranchisement will not foster their payment. 128. Denying the right to vote does not and cannot incentivize payment of LFOs that a person cannot pay.
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COUNT THREE Fourteenth Amendment to the U.S. Constitution,
as enforced by 42 U.S.C. § 1983 Unconstitutional Arbitrary and Disparate Violation of Equal Protection
129. Plaintiffs re-allege and incorporate by reference each allegation contained in the preceding paragraphs as though fully set forth herein.
130. SB7066 fails to provide adequate guidance for uniform statewide implementation by Florida counties. As a result, whether returning citizens are allowed to vote will rely on arbitrary decisions made county by county.
131. In any state-adopted electoral scheme, “[t]he right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise.” Bush v. Gore, 531 U.S. 98, 104–05 (2000).
132. Once a state has “granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.” Id. This includes “accorded arbitrary and disparate treatment to voters in [] different counties.” Id. at 107.
133. SB7066 fails to provide adequate guidance for uniform statewide application of the law. The results are improper “arbitrary determinations” leading to “disparate treatment” for similarly situated returning citizens based only on their respective locations.
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134. There is no uniform method for counties to identify a returning citizen’s outstanding LFOs, determine what constitutes a disenfranchising LFO, decide whether LFOs can be modified, terminated, or converted to community service, or establish standards and procedures for confirming voters’ eligibility or removing them from the rolls for outstanding LFOs. Further, each county has the sole responsibility for determining if there has been a violation and whether the offender should be prosecuted.
135. Without adequate statewide guidance and uniform implementation, upon information and belief, counties have incorporated entirely different schemes for implementing SB7066. The result is that similarly situated returning citizens, with equivalent outstanding LFOs, may receive different outcomes on whether their voter registration applications are accepted and their ballots are counted, based solely on the counties in which they reside.
COUNT FOUR Fourteenth Amendment to the U.S. Constitution,
as enforced by 42 U.S.C. § 1983 Unconstitutional Burden on the Fundamental Right to Vote 136. Plaintiffs re-allege and incorporate by reference each allegation contained in the preceding paragraphs as though fully set forth herein. 137. The Fourteenth Amendment safeguards the “precious” and “fundamental” right to vote, Harper, 383 U.S. at 670, and prohibits any
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encumbrance on the right to vote that is not adequately justified by valid and specific state interests, Anderson v. Celebrezze, 460 U.S. 780, 788–89 (1983).
138. Courts reviewing a challenge to a law that burdens the right to vote “must weigh ‘the character and magnitude of the asserted injury to the right[]’” to vote “against ‘the precise interests put forward by the State as justifications for the burden imposed by its rule,’ taking into consideration ‘the extent to which those interests make it necessary to burden the plaintiff’s rights.’” Burdick v. Takushi, 504 U.S. 428, 434 (1992) (quoting Anderson, 460 U.S. at 789).
139. Plaintiffs are registered voters and have the fundamental right to vote. 140. Defendants confirmed Plaintiffs’ eligibility to vote and added Plaintiffs to the registration rolls. 141. As an eligible registered voter, Mr. Gruver voted in the March 2019 Gainesville municipal election. 142. As an eligible registered voter, Mr. Ivey voted in the March and May 2019 Duval County elections. 143. As an eligible registered voter, Pastor Tyson voted in March and April 2019 Tampa municipal elections. 144. SB7066 imposes a severe burden on Plaintiffs’ right to vote. Plaintiffs will be completely, and likely permanently, disenfranchised by Fla. Stat. §§ 98.0751(1)–(2)(a).
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145. The severity of SB7066’s burden is heightened because the barrier to the franchise disparately affects those citizens who are already among the most vulnerable: people with a past conviction who lack the means to pay outstanding LFOs.
146. Plaintiffs’ disenfranchisement under SB7066 does not serve any of the rationales advanced by the Legislature to justify passage, or any other legitimate state interest.
147. Disenfranchising Plaintiffs does not serve to collect debt because SB7066 cannot incentivize payment of a debt that Plaintiffs cannot afford to pay.
148. It is unconstitutionally burdensome for the State to condition Plaintiffs’ fundamental voting rights on their ability to pay the entirety of their LFOs, which they are unable to pay.
149. In addition, due to the lack of accurate, centralized information on outstanding LFOs, it is difficult—if not impossible—for potential registrants to determine whether their debt would disqualify them under SB7066.
150. In order to determine their eligibility, Plaintiffs would have to contact numerous agencies and conduct research of court records. Even with these efforts, it may be impossible for many to determine their eligibility.
151. SB7066 thereby places an unnecessary burden on the right to vote without advancing a valid state interest.
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COUNT FIVE Twenty-Fourth Amendment to the U.S. Constitution,
as enforced by 42 U.S.C. § 1983 Unconstitutional Poll Tax
152. Plaintiffs re-allege and incorporate by reference each allegation contained in the preceding paragraphs as though fully set forth herein.
153. SB7066 violates the prohibition against poll taxes enshrined in the Twenty-Fourth Amendment.
154. The Twenty-Fourth Amendment guarantees that the right to vote “shall not be denied or abridged . . . by reason of failure to pay any poll tax or other tax.” U.S. Const. Am. XXIV.
155. SB7066 requires LFO payment as a condition for exercising the right to vote and without regard to whether Plaintiffs are able to pay.
156. These LFOs include costs, charges, and fees mandated by statute, which are used to fund the court system and the State’s general revenue.
157. On information and belief, and after working diligently to determine their outstanding LFOs, Plaintiffs Gruver, Mitchell, Riddle, Wrench, Tyson, and Moreland are only aware of outstanding costs and/or fees (not restitution or fines).
158. SB7066 excludes returning citizens with outstanding restitution obligations from all means of restoration. Returning citizens cannot apply for restoration through clemency unless they have completed their restitution
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obligations. Bd. of Exec. Clemency, Rule 9.A. The Florida Supreme Court understood Amendment 4 to limit the Clemency Board’s case-by-case restoration review to “only for those persons convicted of murder or felony sexual offenses, rather than for all felony offenders[.]” Advisory Opinion to the Attorney General, 215 So. 3d at 1207.
159. Excluding Plaintiffs entirely from any chance at restoration imposes an unconstitutional poll tax or other tax on Plaintiffs and other returning citizens.
COUNT SIX Fourteenth Amendment to the U.S. Constitution,
as enforced by 42 U.S.C. § 1983 Vagueness
160. Plaintiffs re-allege and incorporate by reference each allegation contained in the preceding paragraphs as though fully set forth herein.
161. A law is unconstitutionally vague in violation of the Due Process Clause if it either (1) “fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits,” Hill v. Colorado, 530 U.S. 703, 732 (2000), or (2) fails to “provide explicit standards for those who apply” the law such that “arbitrary and discriminatory enforcement” is authorized or even encouraged, Grayned v. City of Rockford, 408 U.S. 104, 108–09 (1972). See also League of Women Voters of Fla. v. Browning, 863 F. Supp. 2d 1155, 1160–61 (N.D.
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Fla. 2012) (finding a “virtually unintelligible” voter registration regulation that is accompanied by substantial penalties is void for vagueness).
162. Florida lacks any accurate or centralized data on outstanding LFOs that prospective voter registrants may access.
163. Florida does not reliably track payment toward LFOs for those discharged from supervision in the State. There are some payments toward obligations—including certain restitution payments—that no entity in the State ever tracks at all. Furthermore, Florida does not have any system whatsoever for individuals to calculate debt from other States or from federal courts.
164. State agencies incorrectly show outstanding debt, even after the original amount has been paid off, because interest and surcharges are automatically taken out of returning citizens’ payments.
165. Officials from Florida agencies tasked with implementation of Amendment 4 have testified that they do not have sufficient information to carry out SB7066’s requirements.
166. Without a centralized, up-to-date database, returning citizens are often unaware of whether they have any outstanding LFOs or how much LFO debt they owe. For some returning citizens, notwithstanding all diligence, it remains impossible to verify what they owe.
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167. For example, Mr. Ivey has outstanding LFOs incurred more than 15 years ago but was unaware of the remaining debt until a reporter informed him of it in 2019.
168. Ms. Riddle only became aware of her outstanding LFOs from felony convictions from 1990 in May 2019. Ms. Riddle does not know definitively how much she owes because, despite diligent efforts over several months, the Sarasota and Hillsborough County Clerks of Court have not been able to produce documentation for her older convictions.
169. Mr. Mitchell had outstanding LFOs incurred over a decade ago when he was a juvenile, but was unaware of the debt until the Miami-Dade Clerk of Court sent him a notice of the debt at his registration address soon after he registered to vote. Mr. Mitchell was unaware of his outstanding LFOs from another conviction until June 28, 2019.
170. Mr. Tyson incurred his LFOs decades ago, but only became aware that some were outstanding after being notified recently by counsel. Despite diligent efforts by him and counsel, Mr. Tyson is still unable to determine definitively how much he owes.
171. Though SB7066 specifies that returning citizens need only repay LFOs that were originally imposed by a court as part of sentence, returning citizens may not be able to tell whether outstanding LFOs fall into this category. Charges,
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including interest, collection fees, and other assessments charged after the fact, are not disaggregated by the courts.
172. Furthermore, while SB7066 delineates LFOs in terms of the type of fines, fees, and restitution incurred and owed for offenses adjudicated in Florida courts, it provides no information or guidance on analogous financial obligations or civil debt incurred in other states that would be disqualifying for purposes of SB7066.
173. SB7066 is unconstitutionally vague in violation of the Due Process Clause because it fails to provide prospective registrants sufficient information or fair warning regarding whether LFOs continue to disqualify them from voting. The absence of this information impermissibly chills Plaintiffs’ exercise of their fundamental right to register and vote.
COUNT SEVEN Fourteenth Amendment to the U.S. Constitution,
as enforced by 42 U.S.C. § 1983 Procedural Due Process
174. Plaintiffs re-allege and incorporate by reference each allegation contained in the preceding paragraphs as though fully set forth herein.
175. A claim “alleging a denial of procedural due process requires proof of three elements: (1) a deprivation of a constitutionally-protected liberty or property
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interest; (2) state action; and (3) constitutionally-inadequate process.” Grayden v. Rhodes, 345 F.3d 1225, 1332 (11th Cir. 2003).
176. Plaintiffs’ voting rights were automatically restored by Amendment 4 on January 8, 2019, and therefore, they have a constitutionally protected right to vote upon complete of their sentence under the U.S. and Florida Constitutions.
177. By conditioning voter eligibility on whether a person has fully paid all LFOs incurred from a disqualifying offense, SB7066 denies the right to vote to otherwise eligible individuals.
178. SB7066 fails to provide for adequate procedures that ensure individuals who are eligible to register to vote and vote are able to register and vote in Florida.
179. These well-documented deficiencies and flaws give rise to serious due process violations under the Mathews v. Eldridge due process framework. Under Mathews, the determination of what process is due rests on the balance between (1) the interest affected; (2) the risk of erroneous deprivation under the current procedures and the “probable value, if any, of additional or substitute procedural safeguards;” and (3) the state’s interest, including the “fiscal and administrative burdens” additional procedures would entail. 424 U.S. 319, 335 (1976).
180. The interest at stake—the right to vote—is fundamental.
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181. Despite the critical importance of this interest, SB7066 is practically guaranteed to cause erroneous deprivation of the right to vote because the process provided is inadequate in at least seven ways.
182. First, as described above, in some instances neither the State nor returning citizens can confirm or calculate outstanding LFOs. This issue for returning citizens is further compounded by the significant resources required to confirm and determine, if possible, outstanding LFOs. Returning citizens who cannot confirm a zero balance—and therefore do not register to vote out of fear prosecution—will never receive any process whatsoever to determine their eligibility.
183. Second, even if a person is able to confirm their eligibility to register to vote, there is a high likelihood of erroneous deprivation by election officials because SB7066 directs them to use data that is flawed and inaccurate to determine their eligibility once they have applied to register.
184. Third, SB7066 does not create any procedural mechanism for Plaintiffs to pay their disqualifying LFOs prior to other non-disqualifying LFOs.
185. Fourth, even if a returning citizen is willing to accept the risk of prosecution and registers to vote, SB7066’s process for determining eligibility is inadequate because SB7066 fails to provide any standards or factors under which an SOE can “verify and make a final determination . . . regarding whether the person
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who registers to vote is eligible pursuant to [Amendment 4] and this section.” Fla. Stat. § 98.0751(3)(b) (2019). SB7066 therefore ensures arbitrary and discriminatory enforcement.
186. Fifth, SB7066 fails to provide any standards or factors under which a prospective voter registrant would be able to seek, or a court would grant, termination of LFOs or conversion to community service hours pursuant to Fla. Stat. § 98.0751(2)(a)(5)(e)(II–III), therefore ensuring arbitrary and discriminatory enforcement.
187. Sixth, SB7066 fails to provide any mechanism or standard by which a prospective registrant would be able to appeal an adverse determination on a request for termination of financial obligations or conversion to community service.
188. Seventh, SB7066 fails to provide any process for individuals with convictions in other states to seek waiver, termination, or conversion to community service.
189. For these reasons, the lack of procedural safeguards creates a serious risk of erroneous deprivation, meaning otherwise eligible voters entitled to register to vote and vote under the Florida Constitutional will be erroneously deprived of their right to vote.
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190. As alleged above, the State has no cognizable interest in conditioning the right to vote on the payment of LFOs or in discriminating against otherwise eligible voters based on wealth.
COUNT EIGHT First and Fourteenth Amendments to the U.S. Constitution,
as enforced by 42 U.S.C. § 1983 Burden on Core Political Speech and Associational Rights 191. Plaintiffs re-allege and incorporate by reference each allegation contained in the preceding paragraphs as though fully set forth herein. 192. LWVF has a First Amendment right to speak, associate, and act collectively with others in order to register voters. 193. LWVF cannot determine whether many potential registrants have satisfied their LFOs. LWVF volunteers do not have access to state data to help potential registrants determine whether all terms of their sentences are complete. Some volunteers will not engage in registration activities because of their concerns. 194. SB7066 also limits the ability of individual Floridians, without specialized training, to assist returning citizens with registering to vote, a civic service that many of LWVF’s members and volunteers have routinely performed of their own accord. 195. SB7066 thus violates LWVF’s constitutional rights to speech and association because the law deters LWVF from engaging in protected voter
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registration activity. The law prevents LWVF from registering returning citizens who are in fact eligible to vote because LWVF volunteers lack certainty that registrants can affirm that they have completed all terms of their sentences.
196. The success of LWVF’s voter registration drives is severely undermined by uncertainty as to whether a potential registrant has satisfied all LFOs imposed as part of a criminal sentence.
197. As alleged above, SB7066 does not advance any legitimate, much less compelling, state interest.
COUNT NINE Article I, § 10 of the U.S. Constitution,
as enforced by 42 U.S.C. § 1983 Retroactive Punishment in Violation of Ex Post Facto Clause 198. Plaintiffs re-allege and incorporate by reference each allegation contained in the preceding paragraphs as though fully set forth herein. 199. Article 1, Section 10, of the United States Constitution provides that “[n]o state shall . . . pass any . . . ex post facto law” that retroactively punishes or extends sanctions imposed on any citizen. 200. Plaintiffs were each convicted of crimes prior to the passage of SB7066. 201. Plaintiffs’ voting rights were automatically restored by Amendment 4 on January 8, 2019.
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202. Plaintiffs were registered to vote pursuant to Article VI, Section 4 of the Florida Constitution prior to the enactment of SB7066.
203. SB7066’s requirement of full payment of all LFOs despite inability to pay is punitive in both intent and effect.
204. State lawmakers referenced the punitive purpose of LFOs in debate and discussion over SB7066. For instance, House sponsor Representative Grant referred to “fines, fees, [and] court costs” as “punishment for a crime.” Apr. 4 Hearing at 2:58. In announcing his decision to sign the bill, Gov. DeSantis stated that, “The only reason you’re paying restitution is because you were convicted of a felony.” News Service of Florida, Amendment 4 Bill: DeSantis Says He’s Ready to Sign, Tampa Bay Times (May 8, 2019), https://www.tampabay.com/floridapolitics/buzz/2019/05/08/amendment-4-bill-desantis-says-hes-ready-to-sign/ ?template=amp/.
205. Florida’s felony disenfranchisement law has been used for nearly two centuries as a form of criminal punishment.
206. The sanction of disenfranchisement involves an affirmative restraint on Plaintiffs’ right to vote. There is no alternative, non-punitive purpose for disenfranchising individuals who are unable to pay.
207. SB7066 imposes and extends punitive sanctions on Plaintiffs in violation of the Ex Post Facto Clause.
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COUNT TEN Fourteenth and Fifteenth Amendments to the U.S. Constitution,
as enforced by 42 U.S.C. § 1983 Intentional Race Discrimination 208. Plaintiffs re-allege and incorporate by reference each allegation contained in the preceding paragraphs as though fully set forth herein. 209. The Equal Protection Clause of the Fourteenth Amendment prohibits intentional discrimination on the basis of race. U.S. Const. amend. XIV. The Fifteenth Amendment forbids the denial or abridgment of the right to vote on account of race or ethnicity. U.S. Const. amend. XV. Both constitutional protections guard against any deprivation of the right to vote that is motivated by race. Rogers v. Lodge, 458 U.S. 613, 621–25 (1982). 210. Because a discriminatory motive may hide behind legislation that “appears neutral on its face,” the U.S. Supreme Court articulated several nonexhaustive factors to inform an analysis of discriminatory intent: (1) evidence that defendants’ decision bears more heavily on one race than another; (2) the historical background of the decision; (3) the specific sequence of events leading up to the decision; (4) departures from the normal procedural sequence; (5) substantive departures; and (6) legislative history, including “contemporary statements by members of the decision making body, minutes of its meetings, or reports.” Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266–28 (1977).
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211. An official action taken for the purpose of discriminating on account of race has no legitimacy under the U.S. Constitution. City of Richmond, Va. v. U.S., 422 U.S. 358, 378–79 (1975).
212. Demonstrating intentional discrimination “does not require a plaintiff to prove that the challenged action rested solely on racially discriminatory purposes.” Arlington Heights, 429 U.S. at 265. Instead, the plaintiff’s burden is to show that the discriminatory purpose was a motivating factor, rather than the primary or sole purpose. Id. at 265–66.
213. Applying the Arlington Heights factors to the evidence reveals that SB7066 was enacted, at least in part, with a racially discriminatory intent to discriminate against Black returning citizens in violation of the U.S. Constitution.
214. The history underlying Florida’s felony disenfranchisement regime, the known and reasonably foreseeable discriminatory impact of SB7066, the sequence of events and substantive departures from the normal legislative process which resulted in the enactment of SB7066, and the tenuousness of the stated justifications for SB7066 raise a strong inference of a discriminatory purpose in violation of the Fourteenth and Fifteenth Amendments.
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COUNT ELEVEN Violations of the National Voter Registration Act, 52 U.S.C. § 20501 et seq.
215. Plaintiffs re-allege and incorporate by reference each allegation contained in the preceding paragraphs as though fully set forth herein.
216. The National Voter Registration Act of 1993 (“NVRA”), 52 U.S.C. § 20501 et seq. “establish[es] procedures that will increase the number of eligible citizens who register to vote in elections for Federal office.” Id. § 20501(b)(1).
217. SB7066 violates the NVRA in at least four ways. 218. First, as amended by SB7066, Florida’s uniform statewide voter registration application requires more than “the minimum amount of information necessary to—(i) prevent duplicate voter registrations; and (ii) enable State election officials to assess the eligibility of the applicant and to administer voter registration and other parts of the election process[.]” See id. § 20504(c)(2)(B). 219. Before July 1, 2019, Florida’s voter registration application asked applicants to affirm the following statement: “I am not a convicted felon, or if I am, my right to vote has been restored.” As a result, the application did not require persons to disclose their criminal background, but still allowed the prevention of duplicate voter registrations and enabled State election officials to assess the eligibility of applicants.
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220. Pursuant to SB7066, Florida’s uniform statewide voter registration application now requires applicants to attest whether they have been convicted of a felony, and if convicted, to affirm either: (i) that their “voting rights have been restored by the Board of Executive Clemency;” or (ii) that their “voting rights have been restored pursuant to s. 4, Art. VI of the State Constitution upon the completion of all terms of [their] sentence, including parole or probation.” Fla. Stat. § 97.052(2)(t) (2019).
221. It is not necessary to prevent duplicate voter registrations or to enable State officials to assess applicants’ eligibility or to administer voter registration that applicants state whether they have been convicted of a felony.
222. The application in use prior to July 1, 2019 demonstrates that it is possible to obtain the necessary information without requiring applicants to state whether they have been convicted of a felony. Defendants’ continued acceptance of the prior registration application further demonstrates that the necessary information captured on that form is sufficient.
223. Second, as amended by SB7066, Florida’s uniform statewide voter registration application fails to “inform applicants . . . of [] voter eligibility requirements,” as required by the NVRA. See 52 U.S.C. § 20507(a)(5).
224. The amended application fails to inform applicants of voter eligibility requirements because: (a) applicants are expected to know what the Board of
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Executive Clemency is, to cross reference the application with s. 4, Art. VI of the State Constitution, and to understand that new constitutional provision, see Fla. Stat. § 97.052(2)(t)(3) (2019); and (b) the form does not advise that individuals with outof-state or federal convictions whose voting rights were restored by law while residing in another jurisdiction are eligible to vote.
225. By failing to include a checkbox for those whose rights were restored out of state, the amended form not only fails to inform applicants of eligibility requirements, but also makes it impossible for eligible applicants whose voting rights were restored by another jurisdiction to complete the application.
226. Third, Florida’s uniform statewide voter registration application, as amended by SB7066, appears designed to discourage eligible citizens to register to vote, in contravention of the NVRA’s purpose of “increas[ing] the number of eligible citizens who register to vote in elections for Federal office.” 52 U.S.C. § 20501(b)(1).
227. As described above, the amended application is overinclusive (requiring applicants to state, unnecessarily, whether they have committed a felony), underinclusive (failing to advise that individuals whose voting rights were restored by law while resident of another jurisdiction are eligible to vote), and confusing (requiring applicants to be familiar with the Board of Executive Clemency and s. 4,
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Art. VI of the State Constitution). The application thus chills, rather than increases, voter registration.
228. Fourth, as a result of SB7066, Florida’s voter list maintenance activities will result in registrations and removals from the rolls in a manner that is neither “uniform [nor] nondiscriminatory.” See 52 U.S.C. § 20507(b)(1).
229. Florida’s voter list maintenance practices pursuant to SB7066 are not uniform for at least three reasons:
(a) County SOEs are using the amended form in an inconsistent manner. Some counties permit applicants to use the old or new form, pursuant to guidance from the Division of Elections that the old forms would be accepted. On information and belief, other counties require that applicants use only the amended form. As a result, applicants are being required to submit different information to register to vote. As a result, on information and belief, the registration of eligible applicants with out-of-state convictions is not, or will not, be uniform among counties.
(b) Because counties ascribe different meanings to the term “four corners of the sentencing document,” an applicant who owes an outstanding amount on a certain fine will be permitted to register in some counties, like Miami-Dade, but not permitted to register in other counties, like Martin.
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(c) County SOEs cannot make accurate or uniform determinations of the eligibility of individuals whose rights have been restored pursuant to s. 4, Art. VI of the State Constitution (as is required by Fla. Stat. § 98.0751(3)(b) (2019)), because there is no means by which SOEs can verify the satisfaction of relevant LFOs. State agencies and county clerks do not track out-of-state or federal LFOs, do not track payments on certain obligations, they do not maintain some older records, and certain older records are of such poor quality that they are indecipherable. In addition, SOEs do not know which outstanding LFOs are disqualifying and SOEs apply different standards for what data they require to determine eligibility. SOEs thus cannot make final determinations regarding eligibility and removal in a uniform manner.
230. Finally, Florida’s voter list maintenance practices pursuant to SB7066 are discriminatory because the law denies returning citizens the right to register and vote on the basis of their inability to pay and because SB7066 was enacted, at least in part, with a racially discriminatory intent to discriminate against Black returning citizens. See supra.
REQUEST FOR RELIEF WHEREFORE Plaintiffs respectfully request the following relief:
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a) Declare Fla. Stat. §§ 98.0751(1)–(2)(a) unconstitutional in derogation of the First, Fourteenth, Fifteenth, and Twenty-Fourth Amendments and the Ex Post Facto Clause of the United States Constitution;
b) Temporarily, preliminarily, and permanently restrain and enjoin the State of Florida from enforcing those provisions of Fla. Stat. § 98.0751 that make voting rights contingent on the repayment of financial obligations;
c) Declare that Fla. Stat. § 97.052(t) and § 97.053(5)(a)(6), as amended by SB7066, and Fla. Stat. § 98.0751 violate the National Voter Registration Act;
d) Temporarily, preliminarily, and permanently restrain and enjoin the State of Florida and Supervisors of Elections from removing any registrant from the voter registration rolls on account of outstanding financial obligations that extend beyond incarceration and community supervision;
e) Temporarily, preliminarily, and permanently restrain and enjoin the State of Florida and Supervisors of Elections from using the uniform statewide voter registration application as amended by Fla. Stat. § 97.052(t);
f) Temporarily, preliminarily, and permanently enjoin the State of Florida and Supervisors of Elections to accept the uniform statewide voter registration application that was in use prior to the implementation of SB7066;
g) Award Plaintiffs’ attorneys’ fees in this action pursuant to 42 U.S.C. § 1988(b);
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h) Award Plaintiffs their costs of suit; and i) Grant such other and further relief as this Court deems just and proper in the
circumstances.

Dated: October 29, 2019

Respectfully Submitted,
/s/ Julie A. Ebenstein Julie A. Ebenstein (Fla. Bar No. 91033) R. Orion Danjuma* Jonathan S. Topaz* Dale E. Ho** American Civil Liberties Union Foundation, Inc. 125 Broad Street, 18th Floor New York, NY 10004 (212) 284-7332 jebenstein@aclu.org odanjuma@aclu.org jtopaz@aclu.org dho@aclu.org
Daniel Tilley (Fla. Bar No. 102882) Anton Marino* American Civil Liberties Union of Florida 4343 West Flagler St., Suite 400 Miami, FL 33134 (786) 363-2714 dtilley@aclufl.org amarino@aclufl.org
Jimmy Midyette (Fla. Bar No. 0495859) American Civil Liberties Union Foundation of Florida 118 W. Adams Street, Suite 510 Jacksonville, FL 32202
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(904) 353-8097 jmidyette@aclufl.org
Leah C. Aden* John S. Cusick* NAACP Legal Defense and Educational Fund, Inc. 40 Rector Street, 5th Floor New York, NY 10006 (212) 965-2200 laden@naacpldf.org jcusick@naacpldf.org
Jennifer A. Holmes* NAACP Legal Defense and Educational Fund, Inc. 700 14th Street, Suite 600 Washington D.C., 20005 (202) 682-1500 jholmes@naacpldf.org
Wendy Weiser Myrna Pérez Sean Morales-Doyle* Eliza Sweren-Becker* Brennan Center for Justice at NYU School of Law 120 Broadway, Suite 1750 New York, NY 10271 (646) 292-8310 wendy.weiser@nyu.edu myrna.perez@nyu.edu sean.morales-doyle@nyu.edu eliza.sweren-becker@nyu.edu
and
Pietro Signoracci* David Giller*
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Paul, Weiss, Rifkind, Wharton & Garrison LLP 1285 Avenue of the Americas New York, NY 10019 212-373-3000 Psignoracci@paulweiss.com Dgiller@paulweiss.com Counsel for Plaintiffs * Admitted pro hac vice ** Pro hac vice application forthcoming
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CERTIFICATE OF SERVICE I hereby certify that on October 29, 2019, I electronically filed the foregoing with the Clerk of Court by using CM/ECF, which automatically serves all counsel of record for the parties who have appeared.
/s/ Eliza Sweren-Becker Eliza Sweren-Becker Brennan Center for Justice at NYU School of Law 120 Broadway, Suite 1750 New York, NY 10271 (646) 292-8310 eliza.sweren-becker@nyu.edu
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 </s> Case 4:19-cv-00272-WS-CAS Document 1 Filed 06/15/19 Page 1 of 9

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION

LUIS MENDEZ Petitioner,
v.
RON DESANTIS, IN HIS OFFICIAL CAPACITY AS THE GOVERNOR OF FLORIDA, AN INDISPENSIBLE PARTY, CRAIG LATIMER, IN HIS OFFICIAL CAPACITY AS SUPERVISOR OF ELECTIONS OF HILLSBOROUGH COUNTY, FLORIDA AN INDISPENSIBLE PARTY, AND LAUREL M. LEE , IN HER OFFICIAL CAPACITY AS SECRETARY OF STATE, OF THE STATE OF FLORIDA, AN INDISPENSABLE PARTY, Respondents.

Case No.

COMPLAINT FOR INJUNCTIVE RELIEF, DECLARATORY RELIEF, AND MANDAMUS

Petitioner, by and through his undersigned counsel, hereby complains of the Respondents, and alleges as follows:
NATURE OF THE ACTION 1. This action is brought pursuant to 42 U.S.C. § 1983 to secure equitable relief from Respondents’ unlawful deprivation of Petitioner's rights, privileges and immunities guaranteed by the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, the Twenty-fourth Amendment to the United States Constitution, 52 U.S.C. § 10301 Section 2, and Article VI, Section 4 of the Florida Constitution; and

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pursuant to 28 U.S.C. § 1361 to seek a writ of mandamus. Jurisdiction is conferred pursuant to 28 U.S.C. § 1331 and § 1343. Declaratory relief can be sought pursuant to 28 U.S.C. § 2201 and § 2202.
2. “No right is more precious in a free country than that of having a voice in the election of those who make the laws…” Wesberry v. Sanders, 376 U.S. 1, 17 (1964). Petitioner brings the instant lawsuit to have the relevant portion of F.S. 98.0751, which requires payment of all costs, prior to restoration of voting rights to convicted felons, declared unconstitutional and unenforceable.
3. Once the franchise or right to vote is granted to the electorate, lines may not be drawn, which are inconsistent with the Equal Protection Clause of the United States Constitution. Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966)
4. A state violates the Equal Protection Clause of the United States Constitution whenever it makes affluence of the voter or payment of any fee, an electoral standard. Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966)
5. Article VI, Section 4 of the Florida Constitution, provides: " Disqualifications.— (a) No person convicted of a felony, or adjudicated in this or any other state to be mentally incompetent, shall be qualified to vote or hold office until restoration of civil rights or removal of disability. Except as provided in subsection (b) of this section, any disqualification from voting arising from a felony conviction shall terminate and voting rights shall be restored upon completion of all terms of sentence including parole or probation. (b) No person convicted of murder or a felony sexual offense

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shall be qualified to vote until restoration of civil rights.
6. The Florida Legislature enacted F.S. 98.0751, which purportedly clarified this
amendment, which included the following language:
"98.0751 Restoration of voting rights; termination of ineligibility subsequent to a felony conviction.— (1) A person who has been disqualified from voting based on a felony conviction for an offense other than murder or a felony sexual offense must have such disqualification terminated and his or her voting rights restored pursuant to s. 4, Art. VI of the State Constitution upon the completion of all terms of his or her sentence, including parole or probation. The voting disqualification does not terminate unless a person’s civil rights are restored pursuant to s. 8, Art. IV of the State Constitution if the disqualification arises from a felony conviction of murder or a felony sexual offense, or if the person has not completed all terms of sentence, as specified under subsection (2). (2) For purposes of this section, the term: (a) “Completion of all terms of sentence” means any portion of a sentence that is contained in the four corners of the sentencing document, including, but not limited to: 1. Release from any term of imprisonment ordered by the court as a part of the sentence; 2. Termination from any term of probation or community control ordered by the court as a part of the sentence; 3. Fulfillment of any term ordered by the court as a part of the sentence; 4. Termination from any term of any supervision, which is monitored by the Florida Commission on Offender Review, including, but not limited to, parole; and 5. Payment of all: a. Restitution ordered by the court as a part of the sentence, regardless of whether such restitution is converted to a civil lien; and b. Fees or fines ordered by the court as part of the sentence or that are ordered by the court as a condition of any form of supervision including, but not limited to, probation, community control, or parole. A financial obligation required under this sub-subparagraph is deemed to have been completed to the extent that the financial obligation has been converted to a civil lien. A term required to be completed in accordance with this

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paragraph shall be deemed completed if the court modifies the original sentencing order to no longer require completion of such term. 7. This requirement that payment of all restitution, fees or fines ordered by the court as part of the sentence, as a condition of voting rights restoration, is in violation of U.S. Constitution’s guarantee of Equal Protection, applied to states pursuant to the Fourteenth Amendment, and the Twenty-fourth Amendment to the United States Constitution. In addition it violates 52 U.S.C. § 10301(a) in that it discriminates on the basis of race, color, or membership in one of the language minority groups identified in Section 4(f)(2) of the Act. The requirement further is unconstitutional, invalid and ineffective under the Florida Constitution, because it prescribes qualifications for restoration of voting rights to persons convicted of felonies, in addition to those prescribed by the Florida Constitution.
8. The Petitioner asserts that while the statute, on its face, is race neutral, it has a disproportionate impact on blacks and Hispanics. Based on the totality of circumstances, F.S. 98.0751 results in the political processes leading to nomination or election in the State or political subdivision, not being equally open to participation by members of a class of citizens protected by the Voting Rights Act, subsection (a), in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.
9. The Petitioner posits that once the state grants the right to vote to persons convicted of felonies, who have completed their sentence, including probation and parole, the

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state may not condition that right on the person's ability to pay legal financial obligations.
PARTIES TO THE ACTION
10. Petitioner is a citizen of the County of Hillsborough, State of Florida.
11. Petitioner has been convicted of felonies in the past and has completed all of the terms of his sentences and probation, except payment of court costs and fines. In connection with his felony cases, the courts have imposed court costs, fines, and/or fees in the aggregate amount of approximately $2854.00
12. The Petitioner is a 57 year old black,Hispanic man, who suffers from a disability and is unable to work. He resides with his wife in a small apartment and they must live off her meager $820.00 per month disability check.
13. The Petitioner, who is disabled, does not have the financial resources to pay the court costs, fines, and/or fees assessed against him. Furthermore, he is unable to afford to pay an attorney to petition the courts to allow him to convert his court costs, fines, and/or fees to community service, and even if he did, he is unable to perform community service, without accommodations, due to his disability.

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14. Respondents, Laurel M. Lee and Craig Latimore, as part of their official duties, are responsible for conducting Federal, State, County, special and local elections. Thus, they are sued in their official capacities. Ron DeSantis, as Governor, is the titular head of the State of Florida, and is sued in his official capacity, as such.
FIRST CAUSE OF ACTION (FOURTEENTH AMENDMENT, AND 42 USC 1983) Paragraphs 1-14 are incorporated by reference. 15. F.S. 98.0751 violates the Equal Protection Clause of the 14th Amendment to the United States Constitution, as the statute makes affluence of the voter or payment of money, an electoral standard.
The Fourteenth Amendment of the Constitution requires that courts closely scrutinize challenged election regulations, weighing “the character and magnitude of the asserted injury . . . against the precise interests put forward by the State as justifications for the burden imposed by its rule.” Burdick v. Takushi, 504 U.S. 428, 434 (1992).
Even when voters are only modestly burdened by State action, the State’s “precise interests” must be able to justify the regulation, which must in turn be both “reasonable” and “nondiscriminatory,” id.; see also U.S. Taxpayers Party of Florida v. Smith, 871 F. Supp. 426, 435 (N.D. Fla. 1993) (citing New Alliance Party v. Hand, 933 F.2d 1568 (11th Cir. 1991), as holding that “although the burden imposed on minor parties was not insurmountable, the interests put forth by the state were inadequate to justify the restriction imposed.”).

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When the burden is more severe, the regulation in question must be able to survive strict scrutiny. Burdick, 504 U.S. at 434. When the law applies differently to preexisting classes of similarly situated citizens seeking to exercise their fundamental rights, the distinction is analyzed under strict scrutiny. See, e.g., Wexler v.Anderson, 452 F.3d 1226, 1231-32 (11th Cir. 2006) ;Dunn v. Blumstein, 405 U.S. 330, 336 (1972) (“[A] citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction.”) .
SECOND CAUSE OF ACTION (TWENTY-FOURTH AMENDMENT)
Paragraphs 1-14 are incorporated by reference 16. The Twenty-Fourth Amendment to the United States Constitution provides in part, that “The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay poll tax or other tax.” 17. Taxation of court costs constitutes a tax. A charge is a tax if its purpose is to generate revenue, it is proportionate to the related costs and services, and the payor does not have the ability to limit the use of the service. It is a tax because it generates revenue disproportionate to the services provided, and because it benefits the public and not the payor. Even though the statute allowing the imposition of the court fines and fees fails to use the word tax, it is a tax because the statute’s purpose to generate revenue is clear.

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The Twenty-Fourth Amendment precludes the denial of the right to vote by reason of failure to pay court costs taxed against a person in connection with a criminal court case.
THIRD CAUSE OF ACTION (52 U.S.C. § 10301-VOTING RIGHTS ACT) Paragraphs 1-14 are incorporated by reference 18. F.S. 98.0751 violates 52 U.S.C. § 10301-Voting Rights Act, in that it has and will have a disproportionate and negative impact on black and Hispanic citizens, and was enacted intentionally to slow down and reduce the number of black and Hispanic exfelons from registering to vote.
FOURTH CAUSE OF ACTION (FLORIDA CONSTITUTION)
Paragraphs 1-14 are incorporated by reference
19. F.S. 98.0751 violates Article VI, Section 4 of the Florida Constitution because it prescribes qualifications for restoration of voting rights to persons convicted of felonies, in addition to those prescribed by the Florida Constitution. The Legislature may not add to the requirements for restoration of voting rights over and above what is set forth in the Florida Constitution.
FIFTH CAUSE OF ACTION (MANDAMUS) Paragraphs 1-16 are incorporated by reference.

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19. Petitioner seeks mandamus pursuant to 28 USC 1361 to require the Respondents to allow him to register to vote, if he is qualified, other than having outstanding legal financial obligations.
PRAYER FOR RELIEF
For good cause, Petitioner seeks injunctive relief, declaratory relief, and a writ of mandamus.
1. Petitioner seeks a declaratory judgment pursuant to 28 U.S.C. §§ 2201 and 2202 declaring that F.S 98.0751 violates the Equal Protection Clause under the Fourteenth Amendment of the U.S. Constitution, the Twenty-Fourth Amendment of the U.S. Constitution, 52 U.S.C. § 10301-Voting Rights Act, and Article VI, Section 4, of the Florida Constitution.
2. Petitioner seeks injunctive relief in the form of mandamus directing the Respondents to allow him to register to vote, if he qualifies, without consideration of outstanding legal financial obligations. DATED: June 15, 2019
s/Michael A Steinberg Michael A. Steinberg 4925 Independence Parkway, Suite 195 Tampa, Florida 33634 (813) 221-1300 Florida Bar No.:340065 mas@ssalawyers.com

 </s> Case 4:19-cv-00304-MW-CAS Document 1 Filed 07/01/19 Page 1 of 28

IN THE UNITED STATES DISTRICT COURT FOR NORTHERN DISTRICT OF FLORIDA
Tallahassee Division

ROSEMARY OSBORNE MCCOY and SHEILA SINGLETON, individually and on behalf of those similarly situated,

Plaintiffs, v.

Case No. ___________________

RONALD DION DESANTIS, in his official capacity as Governor of Florida; LAUREL M. LEE, in her official capacity as Secretary of State of Florida; and MIKE HOGAN, in his official capacity as Supervisor of Elections for Duval County, Florida.

Defendants.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Plaintiffs bring this civil rights action pursuant to 42 U.S.C. § 1983, and
allege as follows: PRELIMINARY STATEMENT
1. ROSEMARY MCCOY and SHEILA SINGLETON, both registered voters in Duval County, Florida, challenge the State of Florida’s concerted, unrelenting effort and latest endeavor to deny them the right to vote based purely on their low-income economic status. Plaintiffs contest the state’s attempt through

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recently enacted Senate Bill 7066 to relegate them to second-class citizens who will never have a say in the political strength and future of their community.
2. The State of Florida has a very long and storied history of denying poor people, racial minorities, and women the right to vote. Plaintiffs fit all three of those categories. They are low-income African American women who have lived most of their lives in Florida. They have children and grandchildren, pay taxes, and have built a community for themselves and their loved ones. They volunteer in their community and work every day to address the very povertyrelated issues that contributed to their own mistakes, and they focus their attention on encouraging young people to vote and avoid a similar fate.
3. On November 6, 2018, Floridians overwhelmingly voted in favor of the Voting Restoration Amendment (known as “Amendment 4”), which granted anyone sentenced for a felony offense, except for those convicted of murder or a felony sexual offense, the automatic right to vote upon completion of sentence, including parole and probation. The measure enjoyed bi-partisan support among the voters and passed with almost 66% of votes cast in the election.
4. In addition to drastically revamping and streamlining Florida’s rights restoration scheme, Amendment 4 was a direct response to the Florida legislature’s failure to address the growing condemnation of the bureaucratic, arbitrary, and
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subjective executive clemency process that individuals in Plaintiffs’ situation would otherwise face.
5. Amendment 4 was widely celebrated all over the country for enfranchising the greatest number of people—an estimated 1.4 to 1.6 million— through a single law since the Voting Rights Act of 1965.
6. Within six months of Amendment 4’s passage and effective date, the Florida legislature passed Senate Bill 7066, a measure specifically designed to confuse, complicate and reduce the number of people eligible to vote under Amendment 4. Specifically, Senate Bill 7066 requires individuals convicted of a felony, other than murder or a sexual felony offense, to satisfy all of their legal financial obligations (LFOs) as a precondition to getting their voting rights restored. This is in direct contravention of the clear and unambiguous language in Amendment 4 which mandates the automatic restoration of voting rights to those who have completed the term of their sentence. Florida legislators enacted Senate Bill 7066 despite oral testimony, letters, repeated phone calls to elected officials, and a massive public outcry in opposition to the bill.
7. By enacting Senate Bill 7066, the Florida legislature completely ignored and undermined the will of the people, including their own constituents who overwhelmingly supported Amendment 4.
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8. This lawsuit seeks to vindicate Plaintiffs’ rights and the rights of all similarly situated individuals who would be eligible to vote pursuant to Amendment 4 and who now, under Senate Bill 7066, face the loss of that fundamental right. Plaintiffs’ claims for relief are brought under the Fourteenth, Twenty-Fourth, and Eighth Amendments of the United States Constitution. They request an injunction against any effort by Defendants to remove them from the voter rolls and a declaratory judgment that Senate Bill 7066 is unconstitutional and that they are and remain entitled to vote.
JURISDICTION 9. Plaintiffs bring this action under 42 U.S.C. §§ 1983 and 1988 to redress the deprivation under color of state law of rights secured by the United States Constitution. 10. This Court has original jurisdiction over the subject matter of this action pursuant to 28 U.S.C. §§ 1331 and 1343 because the matters in controversy arise under the Constitution and laws of the United States, and because Plaintiffs bring this action to redress the deprivation, under color of state law, of rights, privileges, and immunities secured by the Constitution of the United States and federal law. 11. Declaratory relief is authorized by 28 U.S.C. §§ 2201 and 2202.
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VENUE 12. Venue is proper in this District under 28 U.S.C. § 1391(b) because all Defendants reside in Florida. 13. This case is properly filed in the Tallahassee Division pursuant to Northern District of Florida Local Rule 3.1(A)–(B), because Defendants DESANTIS and LEE have their principal place of business in this Division.
THE PARTIES Plaintiffs
14. Plaintiff ROSEMARY MCCOY, is a resident of Duval County, Florida. In July 2015, she was convicted in the Fourth Judicial Circuit Court in Duval County, Florida of three felony offenses. None of these offenses involved a conviction for murder or a felony sexual offense. She was sentenced to serve a concurrent sentence for all three felony offenses as follows: 24 months of incarceration, including time served, and 18 months of probation. The court also ordered her to pay costs, fines, and fees in the amount of $666.
15. Plaintiff MCCOY completed her term of incarceration in March 2016 and completed probation in September 2017. She is no longer under the supervision of the Florida Department of Corrections.
16. In April 2019, following Amendment 4’s passage, Plaintiff MCCOY registered to vote in Duval County. That same month, she received a voter
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registration card from the Duval County Supervisor of Elections office and has since voted in a countywide election. Upon information and belief, her ballot was counted.
17. On April 9, 2019, the Duval County Clerk of Court issued Plaintiff MCCOY a “Satisfaction of Judgment” as to any and all court-ordered costs, fines, and fees associated with her criminal sentence. However, the county clerk also informed her that she owed $7,531.84 in victim restitution, plus any and all interest that continues to accrue on the principal amount owed.
18. Because of Plaintiff MCCOY’S criminal history, it has been extremely difficult for her to obtain gainful employment. Therefore, she lacks the financial resources to pay off the victim restitution she owes. If Senate Bill 7066 is enforced, Plaintiff MCCOY is in jeopardy of being removed from the voter rolls and prosecuted if she attempts to re-register and vote in a future election.
19. Plaintiff SHEILA SINGLETON is a resident of Duval County, Florida. In April 2011, she was convicted in the Fourth Judicial Circuit Court in Duval County of one felony offense. This offense did not involve a conviction for murder or a felony sexual offense. She was sentenced to serve a term of imprisonment for this felony charge as follows: six months of incarceration, including time-served, and three years of probation. The court also ordered her to pay costs, fines, and fees in the amount of $821.
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20. Plaintiff SINGLETON completed her term of incarceration in June 2011 and completed probation in July 2014. She is no longer under the supervision of the Florida Department of Corrections.
21. Following Amendment 4’s passage, Plaintiff SINGLETON registered to vote in Duval County. In February 2019, she received a voter registration card from the Duval County Supervisor of Elections office. She has since voted in a countywide election. Upon information and belief, her ballot was counted.
22. In May 2019, the Duval County Clerk of Court informed her that she owes $987.64 in court-ordered costs, fines and fees associated with her criminal sentence. The county clerk also informed her that she owes $14,913.05 in victim restitution, plus any and all interest that continues to accrue on the principal amount owed.
23. Because of Plaintiff SINGLETON’s criminal history, it has been extremely difficult for her to obtain gainful employment. Therefore, she lacks the financial resources to pay off the victim restitution she owes. If Senate Bill 7066 is enforced, Plaintiff SINGLETON is in jeopardy of being removed from the voter rolls and prosecuted if she attempts to re-register and vote in a future election.
Defendants 24. Defendant RONALD DION DESANTIS is sued in his official capacity as Governor of the State of Florida. As Governor, Defendant DESANTIS
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is responsible for the enforcement of all laws of the State of Florida, including Amendment 4 (codified as Fla. Const., art. VI, § 4) and Senate Bill 7066 (amending Fla. Stat. § 98.075(5)). He also has a constitutional duty to protect Plaintiffs’ fundamental right to vote. Fla. Const. art. IV, § 1.
25. Defendant LAUREL M. LEE is sued in her official capacity as Secretary of State of the State of Florida. As the Secretary of State, Defendant LEE is the “chief election officer” for the State and, therefore, ultimately responsible for the administration and supervision of all state election laws. Fla. Stat. § 15.13. It is her official duty to “[o]btain and maintain uniformity in the interpretation and implementation of the election laws, id. § 97.012(1); “enforce the performance of any duties of a county supervisor of elections . . . .” id. § 97.012(14); and to “[p]rovide written direction and opinions to the supervisors of elections on the performance of their official duties with respect to the Florida Election Code or rules adopted by the Department of State.” Id. §§ 97.012(16). Senate Bill 7066 also directs Defendant LEE to identify all registered voters who have a felony conviction and have not completed their sentences, determine whether to grant or reject their voter registration applications, and remove all ineligible voters from the statewide voter registration list. See S.B. 7066, 2019 Leg. §§ 24, 25 (Fla. 2019) (amending Fla. Stat. § 98.075(5)).
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26. Defendant MIKE HOGAN is sued in his official capacity as the Supervisor of Elections for Duval County and is responsible for conducting voter registration and elections in the county. Senate Bill 7066 requires Defendant HOGAN to “verify and make a final determination . . . regarding whether the person who registers to vote is eligible pursuant to [Amendment 4] . . . .” Fla. Stat. § 98.0751(3)(b). He is also responsible for maintaining the county’s voter registration rolls, which include removing from the voter rolls individuals deemed no longer eligible to vote under state law.
FACTUAL ALLEGATIONS Passage of Amendment 4
27. Florida’s history of denying people with criminal convictions the right to vote dates back to its 1845 constitution. However, it was the expansion of its criminal disfranchisement provision in 1868 that contributed in significant part to African Americans being disproportionately disenfranchised.
28. For years, legislation was introduced to streamline the state’s rights restoration scheme, without any success. Moreover, in 2018, the state’s clemency process was found to be “fatally flawed.” Hand v. Scott, 315 F. Supp. 3d 1244, 1248 (N.D. Fla. 2018). As a result, Floridians turned to the state constitution which allows for citizens to amend the constitution by way of a ballot initiative.
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29. The Florida constitution requires that, in order for a ballot initiative to be successful, (1) sufficient petitions must be signed and verified; (2) the state supreme court must approve the language upon a specific finding that the ballot initiative’s language is clear, unambiguous, and provides sufficient detail so that voters know exactly what they are voting for; and (3) passage by at least 60% of all those who voted in a general election. Fla. Const. art. IV, § 10; art. XI, §§ 3, 5.
30. On April 20, 2017, the Florida Supreme Court ruled that “the chief purpose of [Amendment 4] is to automatically restore voting rights to felony offenders, except those convicted of murder or felony sexual offences, upon completion of all terms of their sentence.” Advisory Opinion to the Attorney Gen. Re: Voting Restoration Amendment, 215 So. 3d 1202, 1208 (Fla. 2017).
31. The Florida Supreme Court has held that there is a presumption that provisions of the state constitution are self-executing. Browning v. Fla. Hometown Democracy, Inc., 29 So. 3d 1053, 1064 (Fla. 2010) (“[C]onstitutional provisions are presumed self-executing to prevent the Legislature from nullifying the will of the people as expressed in their Constitution.”); Fla. Hosp. Waterman v. Buster, 984 So. 2d 478, 485–86 (Fla. 2008) (‘[I]n the absence of such presumption the legislature would have the power to nullify the will of the people expressed in their constitution, the most sacrosanct of all expressions of the people.”).
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32. Amendment 4 became effective on January 8, 2019, and Florida’s felony disfranchisement law and restoration scheme now provide that: “(a) No person convicted of a felony, or adjudicated in this or any other state to be mentally incompetent, shall be qualified to vote or hold office until restoration of civil rights or removal of disability. Except as provided in subsection (b) of this section, any disqualification from voting arising from a felony conviction shall terminate and voting rights shall be restored upon completion of all terms of sentence including parole or probation. (b) No person convicted of murder or a felony sexual offense shall be qualified to vote until restoration of civil rights.” Fla. Const. art. VI, § 4 (italics added).
33. Social scientists estimated that 1.4 to1.6 million people would be eligible to vote upon Amendment 4’s passage. See, e.g., The Sentencing Project, 6 Million Lost Voters: State-Level Estimates of Felony Disenfranchisement, 2016, available at https://www.sentencingproject.org/publications/6-million-lost-votersstate-level-estimates-felony-disenfranchisement-2016/. The estimated number also included people who still owe court costs, fines, fees, and/or restitution.
34. It is estimated that over 2,000 formerly incarcerated Floridians registered to vote between January and March 2019, about 44 percent of whom were Black people. See Kevin Morris, Thwarting Amendment 4, Brennan Ctr. for Justice (May 9, 2019), available at
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https://www.brennancenter.org/sites/default/files/analysis/2019_05_FloridaAmend ment_FINAL-3.pdf.
35. Florida’s voter registration form requires an applicant to affirm that the person is not a convicted felon or has had their voting rights restored. Beyond completing and signing the voter registration form, Florida’s election code does not require an applicant to supply any further information or documentation to the supervisor of elections’ office. In fact, Florida’s election code specifically provides that voter registration forms are: “designed so that convicted felons whose civil rights have been restored . . . are not required to reveal their prior conviction or adjudication.” Fla. Stat. § 97.052(2)(t).
36. A voter registration application shall be deemed complete, and the supervisor of elections must approve it, once “all information necessary to establish the applicant’s eligibility pursuant to § 97.041 is received by a voter registration official,” and (b) when that information is “verified pursuant to [§ 97.053(6)].” Id. § 97.053(2).
37. Once a voter registration application is submitted, an election official must enter it into the statewide voter registration database within 13 days of receiving the application and then it must be immediately forwarded to the proper county election office. Id. § 97.053(7).
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38. After the county supervisor of elections receives the voter registration application, the county “must notify [the] applicant of the disposition of the . . . application within 5 business days after voter registration information is entered into the statewide voter registration system.” Id. § 97.073(1). The notice should “inform the applicant that the application has been approved, is incomplete, has been denied, or is a duplicate of a current registration.” Id. “If the application is incomplete, the supervisor must request that the applicant supply the missing information using a voter registration application signed by the applicant.” Id.
39. Plaintiffs MCCOY and SINGLETON registered to vote—and voted— following Amendment 4’s January 8, 2018 effective date. Because they have satisfied all the conditions of their felony sentences, and because Amendment 4 is self-executing, Plaintiffs are legally entitled to vote pursuant to Fla. Const. art. VI § 4. Passage of Senate Bill 7066
40. Even though almost 65% of Floridians voted in favor of Amendment 4, members of the Florida legislature immediately began plans to dismantle the new law.
41. At the start of Florida’s legislative session, there were several bills introduced to complicate the otherwise automatic rights registration scheme
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Amendment 4 created. Senate Bill 7066 was eventually approved by both houses and signed by the Governor on June 28, 2019.
42. During the hearings on the anti-Amendment 4 bills, legislators who supported these bills acknowledged that Florida lacks a centralized database that shows whether a person owes LFOs, the total amount of LFOs owed, and what, if any, of the total amount has been paid.
43. Representative James Grant and Senator Keith Perry refused to investigate or commission a study to determine the full impact Senate Bill 7066 would have on the 1.4 to 1.6 million individuals newly enfranchised under Amendment 4.
44. Community members, grassroots organizations, legislators, and impacted persons testified in opposition to Senate Bill 7066. Upon information and belief, their testimony included personal stories of people who had completed their sentences and already registered to vote and stories from lower income individuals who owed thousands of dollars in financial obligations and would probably never be able to satisfy them, certainly not in time to vote in any upcoming elections in the foreseeable future.
45. Upon information and belief, proponents of Senate Bill 7066 both in the House and Senate failed to obtain the necessary information to document how the legislation would still protect estimated 1.4-1.6 million people eligible to vote.
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46. Senate Bill 7066 requires “[f]ull payment of fines or fees ordered by the court as a part of the sentence or that are ordered by the court as a condition of any form of supervision.” Fla. Stat. § 98.0751(2)(a)(5)(b). These financial obligations “include only the amount specifically ordered by the court as part of the sentence and do not include any fines, fees, or costs that accrue after the date the obligation is ordered as a part of the sentence.” Id. § 98.0751(2)(a)(5)(c).
47. Senate Bill 7066 also defines “[f]ull payment of restitution ordered to a victim by the court as part of the sentence.” Id. § 98.0751(2)(a)(5)(a).
48. Amendment 4 automatically restores one’s voting rights upon completion of sentence. By contrast, Senate Bill 7066 redefines “completion of sentence” to include the full payment of all financial obligations associated with one’s sentence, even when a court has converted those financial obligations to a civil judgment. Id. § 98.0751(2)(a)(5)(e)(III).
49. Therefore, Senate Bill 7066 constitutes a poll tax because it requires the payment of a fee as a precondition to exercising the right to vote, and failure to pay this fee can serve as the sole basis for rejecting a person’s voter registration application or removing them from the voter rolls.
50. Moreover, Senate Bill 7066 denies Plaintiffs their right to vote without requiring an inquiry into Plaintiffs’ ability to pay and a determination that nonpayment of LFOs was willful and not based on indigence. Senate Bill 7066
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thereby punishes individuals like Plaintiffs MCCOY and SINGLETON who are unable to pay off their LFOs and deprives them of their fundamental right to vote solely because “through no fault of [their] own, [they] cannot pay the fine.” Bearden v. Georgia, 461 U.S. 660, 673 (1983).
51. For individuals like Plaintiffs MCCOY and SINGLETON who owe thousands of dollars in LFOs and lack the means to satisfy those payments, Senate Bill 7066 imposes an excessive fine and punitive burden on their ability to vote. Based on their current economic status, Plaintiffs will most likely never be able to vote again.
52. Senate Bill 7066 also requires county supervisors of elections to “verify and make a final determination . . . regarding whether the person who registers to vote is eligible pursuant” to Amendment 4, Fla. Stat. § 98.0751(3)(b) (2019), but the bill does not set forth any standard, guidelines, or other clear directive to county supervisors of elections for how to carry out this broad delegation of authority.
53. Meanwhile, Florida’s supervisors of elections are publicly known to adopt varying internal policies and practices when it comes to the enforcement of election laws, most recently highlighted in the varying treatment of vote-by-mail ballots in different counties. See e.g., Vote-by-Mail Ballots Cast in Florida, ACLU
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of Florida & Prof. Daniel A. Smith (Sept. 19, 2018), https://www.aclufl.org/sites/default/files/aclufl_-_vote_by_mail_-_report.pdf. Senate Bill 7066’s Impact on Communities of Color and Lower Income People
54. Racial bias is prevalent in Florida’s criminal justice system. In addition, people experiencing poverty are over-represented at every level of the system and often exit prison and complete parole or probation further in debt than when they were arrested and convicted.
55. In the past 15 years, Florida has increased the number of criminal offenses for which courts are statutorily mandated to impose LFOs. Moreover, many of these LFOs are imposed regardless of whether a criminal defendant can afford to satisfy those obligations. See, e.g., id. § 938.27(2)(a) (imposing on defendant costs of prosecution and investigation “notwithstanding the defendant’s present ability to pay”); § 938.29(1)(b) (requiring defendant to pay attorneys’ fees and costs in full “notwithstanding the defendant’s present ability to pay”).
56. Florida law enforcement officials are notorious for engaging in racial profiling which has resulted in the disproportionate number of police stops, arrests, prosecution, conviction, and increased sentencing of people of color.
57. In November 2016, over 10% of Florida’s entire voting age population was barred from voting based on a felony conviction. See, e.g., The Sentencing Project, 6 Million Lost Voters: State-Level Estimates of Felony
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Disenfranchisement, 2016, available at https://www.sentencingproject.org/publications/6-million-lost-voters-state-levelestimates-felony-disenfranchisement-2016/. However, 21% of Florida’s African American population could not vote due to a felony conviction. Id.
58. In terms of poverty levels, 2,889,506 people in Florida are living in poverty (14% of the population). See 2018 Florida Talk Poverty report, available at, https://talkpoverty.org/state-year-report/florida-2018-report/. Twenty-one percent of the people living below the poverty line in Florida are African American (compared to 12% of the white population that lives in poverty). Id. 25.2% of Black women in Florida are living in poverty as compared to 11.9% of white women. See The Status of Women in Florida by County: Health & Well-Being, Florida Philanthropic Network, May 2018, available at https://www.fpnetwork.org/resources/status-women-florida-county-health-wellbeing.
59. Moreover, 14.8% of working-age women in Florida have incomes below the poverty line as compared to 11.6% of men. See 2018 Florida Talk Poverty report, available at, https://talkpoverty.org/state-year-report/florida-2018report/.
60. The unemployment rate for returning citizens is five times higher than that of the general population. Lucius Couloute and Daniel Kopf, Out of Prison
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and Out of Work: Unemployment Among Formerly Incarcerated People, Prison Policy Initiative, July 2018, available at, https://www.prisonpolicy.org/reports/outofwork.html.
61. The unemployment rate for Black women in the general population is 6.4%. See id. 43.6% of Black women with a felony conviction are unemployed as compared to 18.4% of formerly incarcerated white men who are unemployed. See id.
62. Senate Bill 7066’s requirement that all of one’s LFOs must be fully satisfied before being eligible to vote will have a disparate and disproportionate effect on racial minorities and lower income people. The Florida legislature presumptively knew that Senate Bill 7066 would cause this harm when it decided to pass the bill.
63. Plaintiffs have no adequate remedy at law other than this action for declaratory and injunctive relief.
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CAUSES OF ACTION COUNT ONE
Violation of Fourteenth Amendment’s Equal Protection Clause (Wealth-based discrimination)
64. Plaintiffs hereby reallege and incorporate by reference each allegation contained in the preceding paragraphs as though fully set forth herein.
65. The Fourteenth Amendment’s Equal Protection Clause provides: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; [ ] nor deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1.
66. “[A] citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction.” Dunn v. Blumstein, 405 U.S. 330, 336 (1972).
67. Wealth “is not germane to one’s ability to participate intelligently in the electoral process.” Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 668 (1966). A state “violates the Equal Protection Clause of the Fourteenth Amendment whenever it makes the affluence of the voter or payment of any fee an electoral standard.” Id. at 666.
68. Florida’s constitution allows a person convicted of a felony, other than murder or a sexual felony offense, to obtain automatic restoration of their voting rights upon completion of their sentence, including parole and probation.
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69. Plaintiffs have completed their terms of incarceration and probation. Plaintiffs MCCOY and SINGLETON had their rights restored by operation of the Florida constitution, registered to vote, and have since voted in an election.
70. Plaintiff MCCOY owes $7,531.84 in outstanding victim restitution, not including continuing accruing interest. Senate Bill 7066 thus requires that Plaintiff MCCOY pay at least $7,531.84 to be eligible to vote in Florida. Otherwise, there is no other barrier to her ability to register and vote in Florida.
71. Plaintiff SINGLETON owes $821 in court fines, fees and restitution, and $14,913.05 in restitution, not including accruing interest. Senate Bill 7066 thus requires that Plaintiff Singleton pay over $15,000 to be eligible to vote in Florida. There is no other barrier to her ability to register and vote in Florida.
72. Neither Plaintiff MCCOY nor Plaintiff SINGLETON have the financial means to satisfy their monetary obligations as a precondition to being eligible to vote pursuant to Senate Bill 7066.
73. Under Senate Bill 7066, Plaintiffs’ eligibility to vote is based entirely on their financial status.
74. Lower income women of color represent a disproportionate and growing number of people in the criminal justice system. Women of color also continue to be paid less than their male and white female counterparts. When they also have a criminal record, their employment opportunities greatly diminish.
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Thus, Senate Bill 7066 has an even more harmful impact on Plaintiffs MCCOY and SINGLETON as low-income women of color.
75. If Plaintiffs were wealthy and had the financial means to fully satisfy their LFOs, they would be eligible to vote under Senate Bill 7066. Therefore, Senate Bill 7066 discriminates against and/or disproportionately impacts Plaintiffs based solely on their level of economic wealth, or lack thereof. Thus, Senate Bill 7066 violates the Fourteenth Amendment’s Equal Protection Clause.
76. There is no compelling governmental interest or rational basis for denying Plaintiffs the right to vote solely based on their lower income status.
77. In addition to violating the Equal Protection Clause’s plain language, public policy favors a finding that Senate Bill 7066 is unconstitutional.
COUNT TWO Violation of Twenty-Fourth Amendment
(Unconstitutional Poll Tax) 78. Plaintiffs hereby reallege and incorporate by reference each allegation contained in the preceding paragraphs as though fully set forth herein. 79. The Twenty-Fourth Amendment to the U.S. Constitution states: “[t]he right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the
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United States or any State by reason of failure to pay any poll tax or other tax.” U.S. Const. amend. XXIV, § 1.
80. In passing the Twenty-Fourth Amendment, Congress enacted a permanent prohibition on a state’s use of wealth as a qualification to vote. See Harman v. Forssenius, 380 U.S. 528, 540-41 (1965) (“[T]he Twenty-fourth [Amendment] nullifies sophisticated as well as simple-minded modes of impairing the right guaranteed.” (internal quotation marks omitted)).
81. The term “poll tax” in the Twenty-Fourth Amendment was never intended to apply to a narrow category of fees imposed on a person in order to vote. See U.S. v. State Tax Comm’n of Miss., 421 U.S. 599, 606 (1975) (noting that the “standard definition of a tax” is any “enforced contribution to provide for the support of government”). The term “poll tax” expressly and implicitly covers Senate Bill 7066’s requirement that Plaintiffs satisfy all of their financial obligations as a precondition to vote.
82. Senate Bill 7066 is a modern day “poll tax” that, in operation, denies people the right to vote based on their economic status.
83. There is no compelling governmental interest or rational basis for denying individuals the right to vote solely based on their lower income status.
84. In addition to violating the Twenty-Fourth Amendment’s plain language, public policy favors a finding that Senate Bill 7066 is unconstitutional.
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COUNT THREE Violation of Fourteenth Amendment’s Equal Protection
& Due Process Clauses (Failure to consider Plaintiffs’ ability to pay
& violation of fundamental fairness) 85. Plaintiffs hereby reallege and incorporate by reference each allegation contained in the preceding paragraphs as though fully set forth herein. 86. The Fourteenth Amendment’s Due Process Clause prohibits states from “depriv[ing] any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. The Due Process Clause and Equal Protection Clause of the Fourteenth Amendment further prohibit states from imposing punishment based on nonpayment of LFOs without first determining that the individual was able to pay and willfully refused to do so. See Bearden, 461 U.S. at 660; Tate v. Short, 401 U.S. 395 (1971); Williams v. Illinois, 399 U.S. 235 (1970); see also Turner v. Rogers, 564 U.S. 431 (2011); Bell v. Burson, 402 U.S. 535, 539 (1971). 87. “[T]he right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights.” Reynolds v. Sims, 377 U.S. 533, 562 (1964). 88. A state cannot deprive someone of a fundamental right without notice and a meaningful opportunity to be heard.
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89. Plaintiffs lack the financial resources to satisfy their financial obligations as a precondition to vote.
90. Senate Bill 7066 deprives Plaintiffs of their fundamental right to vote without, at the very least, requiring the state first determine—at a hearing where Plaintiffs have notice and an opportunity to be heard—whether Plaintiffs have the ability to pay and willfully refused to do so prior to depriving them of their right to vote.
91. Therefore, Senate Bill 7066 deprives Plaintiffs’ of notice and a meaningful opportunity to be heard and violates the fundamental fairness requirements of the Due Process and Equal Protection Clauses of the Fourteenth Amendment.
COUNT FOUR Violation of Fourteenth Amendment’s Due Process Clause
(Void for Vagueness) 92. Plaintiffs hereby reallege and incorporate by reference each allegation contained in the preceding paragraphs as though fully set forth herein. 93. The Fourteenth Amendment’s Due Process Clause requires laws that impose penalties to define the offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. See Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972). “It is a basic principle of due process that
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an enactment is void for vagueness if its prohibitions are not clearly defined.” Id. at 108.
94. Plaintiffs are eligible to vote under Amendment 4 and registered to vote in Duval County. Defendant HOGAN’S office concluded Plaintiffs were eligible to vote and approved their voter registration applications. The process was straightforward, efficient, and easily administered.
95. In contrast, Senate Bill 7066 creates confusion regarding the proper interpretation and enforcement of Amendment 4.
96. Senate Bill 7066’s delegation of authority to county supervisors of elections is also so extensive that it will lead to arbitrary and inconsistent decisions as to a person’s eligibility to vote.
97. As a result, Senate Bill 7066 is void for vagueness under the Fourteenth Amendment’s Due Process Clause.
COUNT FIVE Violation of the Eighth Amendment (Prohibition on excessive fines and cruel and unusual punishment) 98. Plaintiffs hereby reallege and incorporate by reference each allegation contained in the preceding paragraphs as though fully set forth herein. 99. The Eighth Amendment to the U.S. Constitution provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend. VIII (emphasis added).
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100. Senate Bill 7066 requires Plaintiff MCCOY to pay at least $7,531.84

to be eligible to vote in Florida and requires Plaintiff SINGLETON to pay over

$15,000 to be eligible to vote in Florida. These amounts are excessive by any

means, but especially as a precondition to one’s voter eligibility.

101. Therefore, Senate Bill 7066 violates the Eighth Amendment’s

prohibition on excessive fines and cruel and unusual punishment.

REQUEST FOR RELIEF

WHEREFORE Plaintiffs respectfully ask this Court to:

a) Declare Fla. Stat. §§ 98.0751(1)–(2)(a), as amended by Senate Bill 7066,

unconstitutional in violation of the Fourteenth, Twenty-Fourth, and Eighth

Amendments of the United States Constitution;

b) Temporarily, preliminarily, and permanently enjoin Defendants from

enforcing Fla. Stat. §§ 98.0751(1)–(2)(a);

c) Award Plaintiffs’ their costs of suit and attorneys’ fees in this action

pursuant to 42 U.S.C. §§ 19731 and 1988(b); and

d) Grant Plaintiffs such other and further relief as this Court deems just and

proper.

Dated: July 1, 2019

Respectfully submitted,

/s/ Nancy G. Abudu Nancy G. Abudu (Fla. Bar No. 111881) Caren E. Short*

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SOUTHERN POVERTY LAW CENTER P.O. Box 1287 Decatur, Georgia 300031-1287 Tel: 404-521-6700 Fax: 404-221-5857 nancy.abudu@splcenter.org caren.short@splcenter.org Counsel for Plaintiffs *pro hac vice motion forthcoming
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IN THE UNITED STATES DISTRICT COURT FOR NORTHERN DISTRICT OF FLORIDA
Tallahassee Division

ROSEMARY OSBORNE MCCOY and SHEILA SINGLETON, individually and on behalf of those similarly situated,

Plaintiffs,
v.
RONALD DION DESANTIS, in his official capacity as Governor of Florida; LAUREL M. LEE, in her official capacity as Secretary of State of Florida; and MIKE HOGAN, in his official capacity as Supervisor of Elections for Duval County, Florida.

Civil Action No. 4:19-cv-304-RH/MJF
(Consolidated with Case No. 4:19-cv300-RH/MJF

Defendants.

FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Plaintiffs bring this civil rights action pursuant to 42 U.S.C. § 1983, and allege as follows:
PRELIMINARY STATEMENT 1. ROSEMARY MCCOY and SHEILA SINGLETON, both registered voters in Duval County, Florida, challenge the State of Florida’s concerted, unrelenting effort and latest endeavor to deny them the right to vote based purely on their low-income economic status. Plaintiffs maintain they lack the financial
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resources to satisfy any and all outstanding legal financial obligations that are associated, but not a condition of, their criminal sentence. Plaintiffs contest the state’s attempt through recently enacted Senate Bill 7066 to relegate them to second-class citizens who will never have a say in the political strength and future of their communities.
2. The State of Florida has a very long and storied history of denying poor people, racial minorities, and women the right to vote. Plaintiffs fit all three of those categories. They are low-income African American women who have lived most of their lives in Florida. They have children and grandchildren, pay taxes, and have built a community for themselves and their loved ones. They volunteer in their neighborhoods and work every day to address the very povertyrelated issues that contributed to their own mistakes, and they focus their attention on encouraging young people to vote and avoid a similar fate.
3. On November 6, 2018, Floridians overwhelmingly voted in favor of the Voting Restoration Amendment (known as “Amendment 4”), which granted anyone sentenced for a felony offense, except for those convicted of murder or a felony sexual offense, the automatic right to vote upon completion of sentence, including parole and probation. The measure enjoyed bi-partisan support among the voters and passed with almost 65% of votes cast in the election.
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4. In addition to drastically revamping and streamlining Florida’s rights restoration scheme, Amendment 4 was a direct response to the Florida legislature’s failure to address the growing condemnation of the bureaucratic, arbitrary, and subjective executive clemency process that individuals in Plaintiffs’ situation would otherwise face.
5. Amendment 4 was widely celebrated all over the country for enfranchising the greatest number of people—an estimated 1.4 to 1.6 million— through a single law since the Voting Rights Act of 1965.
6. Within six months of Amendment 4’s passage and effective date, the Florida legislature passed Senate Bill 7066, a measure specifically designed to confuse, complicate and reduce the number of people eligible to vote under Amendment 4. Specifically, Senate Bill 7066 requires individuals convicted of a felony, other than murder or a sexual felony offense, to satisfy all of their legal financial obligations (LFOs) as a precondition to getting their voting rights restored. This is in direct contravention of the clear and unambiguous language in Amendment 4 which mandates the automatic restoration of voting rights to those who have completed the term of their sentence. Florida legislators enacted Senate Bill 7066 despite oral testimony, letters, repeated phone calls to elected officials, and a massive public outcry in opposition to the bill.
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7. By enacting Senate Bill 7066, the Florida legislature completely ignored and undermined the will of the people, including their own constituents who overwhelmingly supported Amendment 4.
8. This lawsuit seeks to vindicate Plaintiffs’ rights and the rights of all similarly situated individuals who would be eligible to vote pursuant to Amendment 4 and who now, under Senate Bill 7066, face the loss of that fundamental right. Plaintiffs’ claims for relief are brought under the Fourteenth, Twenty-Fourth, Nineteenth, and Eighth Amendments of the United States Constitution. They request an injunction against any effort by Defendants to remove them from the voter rolls. They also seek a declaratory judgment that Senate Bill 7066’s requirement that they pay any and all legal financial obligations as a precondition to restoring their voting rights is unconstitutional and that they are and remain entitled to vote.
JURISDICTION 9. Plaintiffs bring this action under 42 U.S.C. §§ 1983 and 1988 to redress the deprivation under color of state law of rights secured by the United States Constitution. 10. This Court has original jurisdiction over the subject matter of this action pursuant to 28 U.S.C. §§ 1331 and 1343(3) and (4) because the matters in controversy arise under the Constitution and laws of the United States, and because
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Plaintiffs bring this action to redress the deprivation, under color of state law, of rights, privileges, and immunities secured by the Constitution of the United States and federal law.
11. Declaratory relief is authorized by 28 U.S.C. §§ 2201 and 2202. VENUE
12. Venue is proper in this District under 28 U.S.C. § 1391(b) because all Defendants reside in Florida.
13. This case is properly filed in the Tallahassee Division pursuant to Northern District of Florida Local Rule 3.1(A)–(B), because Defendants DESANTIS and LEE have their principal place of business in this Division.
THE PARTIES Plaintiffs
14. Plaintiff ROSEMARY MCCOY, is a resident of Duval County, Florida. In July 2015, she was convicted in the Fourth Judicial Circuit Court in Duval County, Florida of three felony offenses. None of these offenses involved a conviction for murder or a felony sexual offense. She was sentenced to serve a concurrent sentence for all three felony offenses as follows: 24 months of incarceration, including time served, and 18 months of probation. The court also ordered her to pay costs and fees in the amount of $666, and assessed restitution, payable to the Duval County Clerk of Court
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15. Plaintiff MCCOY completed her term of incarceration in March 2016 and completed probation in September 2017. She is no longer under the supervision of the Florida Department of Corrections.
16. In April 2019, following Amendment 4’s passage, Plaintiff MCCOY registered to vote in Duval County. That same month, she received a voter registration card from the Duval County Supervisor of Elections office and has since voted in a countywide election. Upon information and belief, her ballot was counted.
17. On April 9, 2019, the Duval County Clerk of Court issued Plaintiff MCCOY a “Satisfaction of Judgment” as to any and all court-ordered costs, fines, and fees associated with her criminal sentence. However, the county clerk also informed her that she owed $7,531.84 in victim restitution, which includes interest that continues to accrue on the principal amount owed.
18. As of April 2019, Plaintiff MCCOY owed $6400 in victim restitution and $1,131.84 in interest that has accrued since the original assessment of restitution. According to documentation received from the Duval County Clerk of Courts, the interest rate on Plaintiff MCCOY’s restitution order as of April 2019, was 4.75%.
19. When Plaintiff MCCOY’s order of restitution was assessed by the sentencing court, the sentencing court did not consider the amount of the loss
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sustained by any victim as a result of the offense, as required by Fla. Stat. Ann. § 775.089 (6)(a). The sentencing court also did not consider Plaintiff MCCOY’s financial resources or her present and potential future financial needs and earning ability at the time of assessing the restitution order, as required by Fla. Stat. Ann. § 775.089 (6)(b).
20. Because of Plaintiff MCCOY’S criminal history, it has been extremely difficult for her to obtain gainful employment. Therefore, she lacks the financial resources to pay off the victim restitution she owes. If Senate Bill 7066 is enforced, Plaintiff MCCOY is in jeopardy of being removed from the voter rolls and prosecuted if she attempts to re-register and vote in a future election.
21. Plaintiff SHEILA SINGLETON is a resident of Duval County, Florida. In April 2011, she was convicted in the Fourth Judicial Circuit Court in Duval County of one felony offense. This offense did not involve a conviction for murder or a felony sexual offense. She was sentenced to serve a term of imprisonment for this felony charge as follows: six months of incarceration, including time-served, and three years of probation. The court also ordered her to pay costs, fines, and fees in the amount of $771, and assessed restitution, payable to the Duval County Clerk of Court.
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22. Plaintiff SINGLETON completed her term of incarceration in June 2011 and completed probation in July 2014. She is no longer under the supervision of the Florida Department of Corrections.
23. Following Amendment 4’s passage, Plaintiff SINGLETON registered to vote in Duval County. In February 2019, she received a voter registration card from the Duval County Supervisor of Elections office. She has since voted in a countywide election. Upon information and belief, her ballot was counted.
24. In May 2019, the Duval County Clerk of Court informed her that she owes $987.64 in court-ordered costs, fines, and fees associated with her criminal sentence. The county clerk also informed her that she owes $14,913.05 in victim restitution, which includes interest that continues to accrue on the principal amount owed.
25. As of May 2019, Plaintiff SINGLETON owed $12,110.81 in victim restitution and $2,802.24 in interest that has accrued since the original assessment of restitution. According to documentation received from the Duval County Clerk of Courts, the interest rate on Plaintiff SINGLETON’s restitution order as of May 2019, was 4.75%. See Fla. Stat. Ann. § 55.03 (providing that interest rates on judgments shall be adjusted annually).
26. Because of Plaintiff SINGLETON’s criminal history, it has been extremely difficult for her to obtain gainful employment. Therefore, she lacks the
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financial resources to pay off the victim restitution she owes. If Senate Bill 7066 is enforced, Plaintiff SINGLETON is in jeopardy of being removed from the voter rolls and prosecuted if she attempts to re-register and vote in a future election.
27. Upon information and belief, the Duval County Clerk of Courts does not allow individuals to set up a payment plan for satisfying outstanding restitution.
Defendants 28. Defendant RONALD DION DESANTIS is sued in his official capacity as Governor of the State of Florida. As Governor, Defendant DESANTIS is responsible for the enforcement of all laws of the State of Florida, including Amendment 4 (codified as Fla. Const., art. VI, § 4) and Senate Bill 7066 (amending Fla. Stat. § 98.075(5)). He also has a constitutional duty to protect Plaintiffs’ fundamental right to vote. Fla. Const. art. IV, § 1. 29. Defendant LAUREL M. LEE is sued in her official capacity as Secretary of State of the State of Florida. As the Secretary of State, Defendant LEE is the “chief election officer” for the State and, therefore, ultimately responsible for the administration and supervision of all state election laws. Fla. Stat. § 15.13. It is her official duty to “[o]btain and maintain uniformity in the interpretation and implementation of the election laws, id. § 97.012(1); “enforce the performance of any duties of a county supervisor of elections . . . .” id. § 97.012(14); and to
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“[p]rovide written direction and opinions to the supervisors of elections on the performance of their official duties with respect to the Florida Election Code or rules adopted by the Department of State.” Id. §§ 97.012(16). Senate Bill 7066 also directs Defendant LEE to identify all registered voters who have a felony conviction and have not completed their sentences, determine whether to grant or reject their voter registration applications, and remove all ineligible voters from the statewide voter registration list. See S.B. 7066, 2019 Leg. §§ 24, 25 (Fla. 2019) (amending Fla. Stat. § 98.075(5)).
30. Defendant MIKE HOGAN is sued in his official capacity as the Supervisor of Elections for Duval County and is responsible for conducting voter registration and elections in the county. Senate Bill 7066 requires Defendant HOGAN to “verify and make a final determination . . . regarding whether the person who registers to vote is eligible pursuant to [Amendment 4] . . . .” Fla. Stat. § 98.0751(3)(b). He is also responsible for maintaining the county’s voter registration rolls, which include removing from the voter rolls individuals deemed no longer eligible to vote under state law.
FACTUAL ALLEGATIONS Passage of Amendment 4
31. Florida’s history of denying people with criminal convictions the right to vote dates back to its 1845 constitution. However, it was the expansion of its
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criminal disfranchisement provision in 1868 that contributed in significant part to African Americans being disproportionately disenfranchised.
32. For years, legislation was introduced to streamline the state’s rights restoration scheme, without any success. Moreover, in 2018, the state’s clemency process was found to be “fatally flawed.” Hand v. Scott, 315 F. Supp. 3d 1244, 1248 (N.D. Fla. 2018). As a result, Floridians turned to the state constitution which allows for citizens to amend the constitution by way of a ballot initiative.
33. The Florida constitution requires that, in order for a ballot initiative to be successful, (1) sufficient petitions must be signed and verified; (2) the state supreme court must approve the language upon a specific finding that the ballot initiative’s language is clear, unambiguous, and provides sufficient detail so that voters know exactly what they are voting for; and (3) passage by at least 60% of all those who voted in a general election. Fla. Const. art. IV, § 10; art. XI, §§ 3, 5.
34. On April 20, 2017, the Florida Supreme Court ruled that “the chief purpose of [Amendment 4] is to automatically restore voting rights to felony offenders, except those convicted of murder or felony sexual offences, upon completion of all terms of their sentence.” Advisory Opinion to the Attorney Gen. Re: Voting Restoration Amendment, 215 So. 3d 1202, 1208 (Fla. 2017).
35. The Florida Supreme Court has held that there is a presumption that provisions of the state constitution are self-executing. Browning v. Fla. Hometown
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Democracy, Inc., 29 So. 3d 1053, 1064 (Fla. 2010) (“[C]onstitutional provisions are presumed self-executing to prevent the Legislature from nullifying the will of the people as expressed in their Constitution.”); Fla. Hosp. Waterman v. Buster, 984 So. 2d 478, 485–86 (Fla. 2008) (‘[I]n the absence of such presumption the legislature would have the power to nullify the will of the people expressed in their constitution, the most sacrosanct of all expressions of the people.”).
36. Amendment 4 became effective on January 8, 2019, and Florida’s felony disfranchisement law and restoration scheme now provide that: “(a) No person convicted of a felony, or adjudicated in this or any other state to be mentally incompetent, shall be qualified to vote or hold office until restoration of civil rights or removal of disability. Except as provided in subsection (b) of this section, any disqualification from voting arising from a felony conviction shall terminate and voting rights shall be restored upon completion of all terms of sentence including parole or probation. (b) No person convicted of murder or a felony sexual offense shall be qualified to vote until restoration of civil rights.” Fla. Const. art. VI, § 4 (italics added).
37. Social scientists estimated that 1.4 to1.6 million people would be eligible to vote upon Amendment 4’s passage. See, e.g., The Sentencing Project, 6 Million Lost Voters: State-Level Estimates of Felony Disenfranchisement, 2016, available at https://www.sentencingproject.org/publications/6-million-lost-voters-
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state-level-estimates-felony-disenfranchisement-2016/. The estimated number also included people who still owe court costs, fines, fees, and/or restitution.
38. It is estimated that over 2,000 formerly incarcerated Floridians registered to vote between January and March 2019, about 44 percent of whom were Black people. See Kevin Morris, Thwarting Amendment 4, Brennan Ctr. for Justice (May 9, 2019), available at https://www.brennancenter.org/sites/default/files/analysis/2019_05_FloridaAmend ment_FINAL-3.pdf.
39. Florida’s voter registration form requires an applicant to affirm that the person is not a convicted felon or has had their voting rights restored. Beyond completing and signing the voter registration form, Florida’s election code does not require an applicant to supply any further information or documentation to the supervisor of elections’ office. In fact, Florida’s election code specifically provides that voter registration forms are: “designed so that convicted felons whose civil rights have been restored . . . are not required to reveal their prior conviction or adjudication.” Fla. Stat. § 97.052(2)(t).
40. A voter registration application shall be deemed complete, and the supervisor of elections must approve it, once “all information necessary to establish the applicant’s eligibility pursuant to § 97.041 is received by a voter
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registration official,” and (b) when that information is “verified pursuant to [§ 97.053(6)].” Id. § 97.053(2).
41. Once a voter registration application is submitted, an election official must enter it into the statewide voter registration database within 13 days of receiving the application and then it must be immediately forwarded to the proper county election office. Id. § 97.053(7).
42. After the county supervisor of elections receives the voter registration application, the county “must notify [the] applicant of the disposition of the . . . application within 5 business days after voter registration information is entered into the statewide voter registration system.” Id. § 97.073(1). The notice should “inform the applicant that the application has been approved, is incomplete, has been denied, or is a duplicate of a current registration.” Id. “If the application is incomplete, the supervisor must request that the applicant supply the missing information using a voter registration application signed by the applicant.” Id.
43. Plaintiffs MCCOY and SINGLETON registered to vote—and voted— following Amendment 4’s January 8, 2018 effective date. Because they have satisfied all the conditions of their felony sentences, and because Amendment 4 is self-executing, Plaintiffs are legally entitled to vote pursuant to Fla. Const. art. VI § 4.
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Passage of Senate Bill 7066 44. Even though almost 65% of Floridians voted in favor of Amendment
4, members of the Florida legislature immediately began plans to dismantle the new law.
45. At the start of Florida’s legislative session, there were several bills introduced to complicate the otherwise automatic rights registration scheme Amendment 4 created. Senate Bill 7066 was eventually approved by both houses and signed by the Governor on June 28, 2019.
46. During the hearings on the anti-Amendment 4 bills, legislators who supported these bills acknowledged that Florida lacks a centralized database that shows whether a person owes LFOs, the total amount of LFOs owed, and what, if any, of the total amount has been paid.
47. Representative James Grant and Senator Keith Perry refused to investigate or commission a study to determine the full impact Senate Bill 7066 would have on the 1.4 to 1.6 million individuals newly enfranchised under Amendment 4.
48. Community members, grassroots organizations, legislators, and impacted persons testified in opposition to Senate Bill 7066. Upon information and belief, their testimony included personal stories of people who had completed their sentences and already registered to vote and stories from lower income
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individuals who owed thousands of dollars in LFOs and would probably never be able to satisfy them, certainly not in time to vote in any upcoming elections in the foreseeable future.
49. Upon information and belief, proponents of Senate Bill 7066 both in the House and Senate failed to obtain the necessary information to document how the legislation would still protect estimated 1.4-1.6 million people eligible to vote.
50. Senate Bill 7066 requires “[f]ull payment of fines or fees ordered by the court as a part of the sentence or that are ordered by the court as a condition of any form of supervision.” Fla. Stat. § 98.0751(2)(a)(5)(b). These financial obligations “include only the amount specifically ordered by the court as part of the sentence and do not include any fines, fees, or costs that accrue after the date the obligation is ordered as a part of the sentence.” Id. § 98.0751(2)(a)(5)(c).
51. Senate Bill 7066 also defines “[f]ull payment of restitution ordered to a victim by the court as part of the sentence.” Id. § 98.0751(2)(a)(5)(a).
52. Amendment 4 automatically restores one’s voting rights upon completion of sentence. By contrast, Senate Bill 7066 redefines “completion of sentence” to include the full payment of all financial obligations associated with one’s sentence, even when a court has converted those financial obligations to a civil judgment. Id. § 98.0751(2)(a)(5)(e)(III).
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53. Therefore, Senate Bill 7066 constitutes a poll tax because it requires the payment of a fee as a precondition to exercising the right to vote, and failure to pay this fee can serve as the sole basis for rejecting a person’s voter registration application or removing them from the voter rolls.
54. Moreover, Senate Bill 7066 denies Plaintiffs their right to vote without requiring an inquiry into Plaintiffs’ ability to pay and a determination that nonpayment of LFOs was willful and not based on indigence. Senate Bill 7066 thereby punishes individuals like Plaintiffs MCCOY and SINGLETON who are unable to pay off their LFOs and deprives them of their fundamental right to vote solely because “through no fault of [their] own, [they] cannot pay the fine.” Bearden v. Georgia, 461 U.S. 660, 673 (1983).
55. For individuals like Plaintiffs MCCOY and SINGLETON who owe thousands of dollars in LFOs and lack the means to satisfy those payments, Senate Bill 7066 imposes an excessive fine and punitive burden on their ability to vote. Based on their inability to pay off their outstanding LFOs, Plaintiffs will most likely never be able to vote again.
56. Senate Bill 7066 also requires county supervisors of elections to “verify and make a final determination . . . regarding whether the person who registers to vote is eligible pursuant” to Amendment 4, Fla. Stat. § 98.0751(3)(b) (2019), but the bill does not set forth any standard, guidelines, or other clear
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directive to county supervisors of elections for how to carry out this broad delegation of authority.
57. Meanwhile, Florida’s supervisors of elections are publicly known to adopt varying internal policies and practices when it comes to the enforcement of election laws, most recently highlighted in the varying treatment of vote-by-mail ballots in different counties. See e.g., Vote-by-Mail Ballots Cast in Florida, ACLU of Florida & Prof. Daniel A. Smith (Sept. 19, 2018), https://www.aclufl.org/sites/default/files/aclufl_-_vote_by_mail_-_report.pdf. Senate Bill 7066’s Impact on Communities of Color and Lower Income People
58. Racial bias is prevalent in Florida’s criminal justice system. In addition, people experiencing poverty are over-represented at every level of the system and often exit prison and complete parole or probation further in debt than when they were arrested and convicted.
59. In the past 15 years, Florida has increased the number of criminal offenses for which courts are statutorily mandated to impose LFOs. Moreover, many of these LFOs are imposed regardless of whether a criminal defendant can afford to satisfy those obligations. See, e.g., id. § 938.27(2)(a) (imposing on defendant costs of prosecution and investigation “notwithstanding the defendant’s present ability to pay”); § 938.29(1)(b) (requiring defendant to pay attorneys’ fees and costs in full “notwithstanding the defendant’s present ability to pay”).
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60. Florida law enforcement officials are notorious for engaging in racial profiling which has resulted in the disproportionate number of police stops, arrests, prosecution, conviction, and increased sentencing of people of color.
61. In November 2016, over 10% of Florida’s entire voting age population was barred from voting based on a felony conviction. See, e.g., The Sentencing Project, 6 Million Lost Voters: State-Level Estimates of Felony Disenfranchisement, 2016, https://www.sentencingproject.org/publications/6million-lost-voters-state-level-estimates-felony-disenfranchisement-2016/. However, 21% of Florida’s African American population could not vote due to a felony conviction. Id.
62. In terms of poverty levels, 2,889,506 people in Florida are living in poverty (14% of the population). See Talk Poverty, Florida 2018, https://talkpoverty.org/state-year-report/florida-2018-report/. Twenty-one percent of the people living below the poverty line in Florida are African American (compared to 12% of the white population that lives in poverty). Id.
63. The unemployment rate for returning citizens is five times higher than that of the general population. See Lucius Couloute & Daniel Kopf, Prison Policy Initiative, Out of Prison and Out of Work: Unemployment Among Formerly Incarcerated People (July 2018), https://www.prisonpolicy.org/reports/outofwork.html.
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64. Senate Bill 7066’s requirement that all of one’s LFOs must be fully satisfied before being eligible to vote will have a disparate and disproportionate effect on racial minorities and lower income people. The Florida legislature presumptively knew that Senate Bill 7066 would cause this harm when it decided to pass the bill. Senate Bill 7066’s Impact on Lower Income Women
65. Between 1978 and 2015, the rate of growth of the incarceration of women in state prisons has vastly outstripped that of men. Women’s incarceration grew 834%, more than twice the rate of growth for their male counterparts. See Wendy Sawyer, The Gender Divide: Tracking Women's State Prison Growth, (Jan. 2018), https://www.prisonpolicy.org/reports/women_overtime.html.
66. Prior to incarceration, 72% of women made less than $23,000 annually, compared to only 57% of men for whom the same was true. See Bernadette Rabuy & Daniel Kopf, Prison Policy Initiative, Prisons of Poverty: Uncovering Pre-Incarceration Incomes of the Imprisoned (2015), https://www.prisonpolicy.org/reports/income.html.
67. In Florida, 14.8% of working-age women have incomes below the poverty line as compared to 11.6% of men. See Talk Poverty, Florida 2018, https://talkpoverty.org/state-year-report/florida-2018-report/.
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68. 25.2% of Black women in Florida are living in poverty as compared to 11.9% of white women. See Julie Anderson, M.A., et al., Institute for Women’s Policy Research, The Status of Women in Florida by County: Poverty & Opportunity 13 (Dec. 2016), https://tinyurl.com/y4omvhf4.
69. Post incarceration, women are more likely to be unemployed than men. The unemployment rate among formerly incarcerated people between the ages of 35-44 was 43.6% among Black women (compared to 35.2% of Black men) and 23.2% among white women (compared to 18.4% of white men). See Lucius Couloute & Daniel Kopf, Out of Prison and Out of Work: Unemployment among Formerly Incarcerated People (2018), http://www.prisonpolicy.org/reports/outofwork.html.
70. Senate Bill 7066’s requirement that all of one’s LFOs must be fully satisfied before being eligible to vote will have a disparate and disproportionate effect on lower income women because of the gender-based disparities both in the criminal justice system and in the labor force.
71. Plaintiffs have no adequate remedy at law other than this action for declaratory and injunctive relief.
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CAUSES OF ACTION COUNT ONE
Violation of Fourteenth Amendment’s Equal Protection Clause (Wealth-based discrimination)
72. Plaintiffs hereby reallege and incorporate by reference each allegation contained in the preceding paragraphs as though fully set forth herein.
73. The Fourteenth Amendment’s Equal Protection Clause provides: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; [ ] nor deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1.
74. “[A] citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction.” Dunn v. Blumstein, 405 U.S. 330, 336 (1972).
75. Wealth “is not germane to one’s ability to participate intelligently in the electoral process.” Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 668 (1966). A state “violates the Equal Protection Clause of the Fourteenth Amendment whenever it makes the affluence of the voter or payment of any fee an electoral standard.” Id. at 666.
76. Florida’s constitution allows a person convicted of a felony, other than murder or a sexual felony offense, to obtain automatic restoration of their voting rights upon completion of their sentence, including parole and probation.
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77. Plaintiffs have completed their terms of incarceration and probation. Plaintiffs MCCOY and SINGLETON had their rights restored by operation of the Florida constitution, registered to vote, and have since voted in an election.
78. Plaintiff MCCOY owes $7,531.84 in outstanding victim restitution, not including continuing accruing interest. Senate Bill 7066 thus requires that Plaintiff MCCOY pay at least $7,531.84 to be eligible to vote in Florida. Otherwise, there is no other barrier to her ability to register and vote in Florida.
79. Plaintiff SINGLETON owes $987.64 in court costs, fines, and fees, and $14,913.05 in restitution, including accruing interest. Senate Bill 7066 thus requires that Plaintiff Singleton pay over $15,000 to be eligible to vote in Florida. There is no other barrier to her ability to register and vote in Florida.
80. Neither Plaintiff MCCOY nor Plaintiff SINGLETON have the financial means to satisfy their monetary obligations as a precondition to being eligible to vote pursuant to Senate Bill 7066.
81. Under Senate Bill 7066, Plaintiffs’ eligibility to vote is based entirely on their financial status.
82. Lower income women of color represent a disproportionate and growing number of people in the criminal justice system. Women of color also continue to be paid less than their male and white female counterparts. When they also have a criminal record, their employment opportunities greatly diminish.
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Thus, Senate Bill 7066 has an even more harmful impact on Plaintiffs MCCOY and SINGLETON as low-income women of color.
83. If Plaintiffs were wealthy and had the financial means to fully satisfy their LFOs, they would be eligible to vote under Senate Bill 7066. Therefore, Senate Bill 7066 discriminates against and/or disproportionately impacts Plaintiffs based solely on their level of economic wealth, or lack thereof. Thus, Senate Bill 7066 violates the Fourteenth Amendment’s Equal Protection Clause.
84. There is no compelling governmental interest or rational basis for denying Plaintiffs the right to vote solely based on their lower income status.
85. In addition to violating the Equal Protection Clause’s plain language, public policy favors a finding that Senate Bill 7066 is unconstitutional.
COUNT TWO Violation of Twenty-Fourth Amendment
(Unconstitutional Poll Tax) 86. Plaintiffs hereby reallege and incorporate by reference each allegation contained in the preceding paragraphs as though fully set forth herein. 87. The Twenty-Fourth Amendment to the U.S. Constitution states: “[t]he right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the
24

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United States or any State by reason of failure to pay any poll tax or other tax.” U.S. Const. amend. XXIV, § 1.
88. In passing the Twenty-Fourth Amendment, Congress enacted a permanent prohibition on a state’s use of wealth as a qualification to vote. See Harman v. Forssenius, 380 U.S. 528, 540-41 (1965) (“[T]he Twenty-fourth [Amendment] nullifies sophisticated as well as simple-minded modes of impairing the right guaranteed.” (internal quotation marks omitted)).
89. The term “poll tax” in the Twenty-Fourth Amendment was never intended to apply to a narrow category of fees imposed on a person in order to vote. See U.S. v. State Tax Comm’n of Miss., 421 U.S. 599, 606 (1975) (noting that the “standard definition of a tax” is any “enforced contribution to provide for the support of government”). The term “poll tax” expressly and implicitly covers Senate Bill 7066’s requirement that Plaintiffs satisfy all of their financial obligations as a precondition to vote.
90. Senate Bill 7066 is a modern day “poll tax” that, in operation, denies people the right to vote based on their economic status.
91. There is no compelling governmental interest or rational basis for denying individuals the right to vote solely based on their lower income status.
92. In addition to violating the Twenty-Fourth Amendment’s plain language, public policy favors a finding that Senate Bill 7066 is unconstitutional.
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COUNT THREE Violation of Nineteenth Amendment
(Denial of vote based on sex) 93. Plaintiffs hereby reallege and incorporate by reference each allegation contained in the preceding paragraphs as though fully set forth herein. 94. The Nineteenth Amendment to the U.S. Constitution states: “[t]he right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.” U.S. Const. amend. XIX, § 1. 95. Since passage of the Nineteenth Amendment, women have become a growing percentage of the electorate. In some jurisdictions, women have surpassed men in voter registration and voter turnout. 96. Women are also the fastest growing group in terms of those who are arrested and incarcerated for committing a criminal offense, many of whom live in Florida. 97. Women who complete prison and probation have fewer employment opportunities and, therefore, lack the same economic resources and ability to satisfy LFOs as their male counterparts. 98. Women of color who complete prison and probation have fewer employment opportunities and, therefore, lack the same economic resources and ability to satisfy LFOs as their male and white female counterparts.
26

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99. The intersection between gender-based disparities in the labor force and pay inequities, both before and after incarceration, lead to women being far less likely than their male counterparts to fully satisfy LFOs in order to vote as required under SB 7066.
100. The intersection between gender-based and race-based disparities in the labor force and pay inequities, both before and after incarceration, lead to women of color being far less likely than their male and white female counterparts to fully satisfy LFOs in order to vote as required under SB 7066.
101. Plaintiffs are low-income African American women who have struggled, oftentimes with little to no success, to find regular, consistent gainful employment that pays a livable wage.
102. Plaintiffs also struggle to meet their household and other daily living expenses. Therefore, requiring them to divert any modest financial support they do receive towards the full and complete satisfaction of their LFOs as required under SB 7066 will result in their permanent disenfranchisement.
103. The denial of voting rights to Plaintiffs and other similarly situated women based solely on their inability to pay LFOs will result in their exclusion from the electorate and significantly impact women’s access to the ballot. In Plaintiffs’ case, that exclusion would be permanent.
27

Case 4:19-cv-00304-RH-CAS Document 7 Filed 10/28/19 Page 28 of 34
104. The diminishment of women from the electorate will have a direct impact on the ability of women to exercise their political rights and to influence governmental decisions regarding the very issues that affect their daily lives.
105. SB 7066 will have an unlawful disparate impact on women, especially women of color.
106. The passage of the Nineteenth Amendment granted women the fundamental right to vote.
107. There is no compelling governmental interest for denying Plaintiffs and similarly situated women the right to vote solely based on their lower economic status.
108. The denial of voting rights to Plaintiffs and similarly situated women is not related to any substantial or important governmental interest.
COUNT FOUR Violation of Fourteenth Amendment’s Equal Protection
& Due Process Clauses (Failure to consider Plaintiffs’ ability to pay
& violation of fundamental fairness) 109. Plaintiffs hereby reallege and incorporate by reference each allegation contained in the preceding paragraphs as though fully set forth herein. 110. The Fourteenth Amendment’s Due Process Clause prohibits states from “depriv[ing] any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. The Due Process Clause and Equal Protection
28

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Clause of the Fourteenth Amendment further prohibit states from imposing punishment based on nonpayment of LFOs without first determining that the individual was able to pay and willfully refused to do so. See Bearden, 461 U.S. at 660; Tate v. Short, 401 U.S. 395 (1971); Williams v. Illinois, 399 U.S. 235 (1970); see also Turner v. Rogers, 564 U.S. 431 (2011); Bell v. Burson, 402 U.S. 535, 539 (1971).
111. “[T]he right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights.” Reynolds v. Sims, 377 U.S. 533, 562 (1964).
112. A state cannot deprive someone of a fundamental right without notice and a meaningful opportunity to be heard.
113. Plaintiffs lack the financial resources to satisfy their financial obligations as a precondition to vote.
114. Senate Bill 7066 deprives Plaintiffs of their fundamental right to vote without, at the very least, requiring the state first determine—at a hearing where Plaintiffs have notice and an opportunity to be heard—whether Plaintiffs have the ability to pay and willfully refused to do so prior to depriving them of their right to vote.
115. Therefore, Senate Bill 7066 deprives Plaintiffs’ of notice and a meaningful opportunity to be heard and violates the fundamental fairness
29

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requirements of the Due Process and Equal Protection Clauses of the Fourteenth Amendment.
COUNT FIVE Violation of Fourteenth Amendment’s Due Process Clause
(Void for Vagueness) 116. Plaintiffs hereby reallege and incorporate by reference each allegation contained in the preceding paragraphs as though fully set forth herein. 117. The Fourteenth Amendment’s Due Process Clause requires laws that impose penalties to define the offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. See Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972). “It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined.” Id. at 108. 118. Plaintiffs are eligible to vote under Amendment 4 and registered to vote in Duval County. Defendant HOGAN’S office concluded Plaintiffs were eligible to vote and approved their voter registration applications. The process was straightforward, efficient, and easily administered. 119. In contrast, Senate Bill 7066 creates confusion regarding the proper interpretation and enforcement of Amendment 4.
30

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120. Senate Bill 7066’s delegation of authority to county supervisors of elections is also so extensive that it will lead to arbitrary and inconsistent decisions as to a person’s eligibility to vote.
121. As a result, Senate Bill 7066 is void for vagueness under the Fourteenth Amendment’s Due Process Clause.
COUNT SIX Violation of the Eighth Amendment
(Prohibition on excessive fines) 122. Plaintiffs hereby reallege and incorporate by reference each allegation contained in the preceding paragraphs as though fully set forth herein. 123. The Eighth Amendment to the U.S. Constitution provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend. VIII (emphasis added). 124. Senate Bill 7066 requires Plaintiff MCCOY to pay at least $7,531to be eligible to vote in Florida and requires Plaintiff SINGLETON to pay over $15,000 to be eligible to vote in Florida. These amounts are excessive by any means, but especially as a precondition to one’s voter eligibility. Further at least a portion of Plaintiffs MCCOY and SINGLETON’s LFOs are payable to—and meant to generate revenue for—Duval County or other government entities. 125. Requiring payment of LFOs—many of which generate revenue for the government—as a precondition to voting is excessive, particularly where neither
31

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the requirement to pay off LFOs nor the amounts required to be paid have any

relation to the person’s criminal culpability and there has been no consideration of

the person’s ability to pay.

126. Therefore, Senate Bill 7066 violates the Eighth Amendment’s

prohibition on excessive fines.

REQUEST FOR RELIEF

WHEREFORE Plaintiffs respectfully ask this Court to:

a) Declare Fla. Stat. §§ 98.0751(1)–(2)(a), as amended by Senate Bill 7066,

unconstitutional in violation of the Fourteenth, Twenty-Fourth, Nineteenth, and

Eighth Amendments of the United States Constitution;

b) Temporarily, preliminarily, and permanently enjoin Defendants from

enforcing Fla. Stat. §§ 98.0751(1)–(2)(a);

c) Award Plaintiffs’ their costs of suit and attorneys’ fees in this action

pursuant to 42 U.S.C. § 1988(b); and

d) Grant Plaintiffs such other and further relief as this Court deems just and

proper.

Dated: October 28, 2019

Respectfully submitted,

/s/ Nancy G. Abudu Nancy G. Abudu (Fla. Bar No. 111881) Caren E. Short* SOUTHERN POVERTY LAW CENTER P.O. Box 1287

32

Case 4:19-cv-00304-RH-CAS Document 7 Filed 10/28/19 Page 33 of 34
Decatur, Georgia 30031-1287 Tel: 404-521-6700 Fax: 404-221-5857 nancy.abudu@splcenter.org caren.short@splcenter.org Counsel for Plaintiffs *Admitted pro hac vice
33

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CERTIFICATE OF SERVICE I hereby certify that on October 28, 2019, I electronically filed the foregoing with the Clerk of Court by using CM/ECF, which automatically serves all counsel of record for the parties who have entered an appearance.
/s/ Nancy G. Abudu Nancy G. Abudu (Fla. Bar No. 111881) Caren E. Short SOUTHERN POVERTY LAW CENTER P.O. Box 1287 Decatur, GA 30031-1287 Tel: 404-521-6700 Fax: 404-221-5857 nancy.abudu@splcenter.org caren.short@splcenter.org Counsel for Plaintiffs Rosemary Osborne McCoy & Sheila Singleton
34

 </s> Cite as: 591 U. S. ____ (2020)

1

SOTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES _________________
No. 19A1071
_________________
BONNIE RAYSOR, ET AL. v. RON DESANTIS, GOVERNOR OF FLORIDA, ET AL.
ON APPLICATION TO VACATE STAY
[July 16, 2020]
The application to vacate stay presented to JUSTICE THOMAS and by him referred to the Court is denied.
JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG and JUSTICE KAGAN join, dissenting from denial of application to vacate stay.
This Court’s order prevents thousands of otherwise eligible voters from participating in Florida’s primary election simply because they are poor. And it allows the Court of Appeals for the Eleventh Circuit to disrupt Florida’s election process just days before the July 20 voter-registration deadline for the August primary, even though a preliminary injunction had been in place for nearly a year and a Federal District Court had found the State’s pay-to-vote scheme unconstitutional after an 8-day trial. I would grant the application to vacate the Eleventh Circuit’s stay.
I
This case implicates the “ ‘fundamental political right’ to vote.” Purcell v. Gonzalez, 549 U. S. 1, 4 (2006) (per curiam). In 2018, the citizens of Florida amended their State Constitution to restore this basic right to persons with felony convictions who had completed “ ‘all terms’ ” of their sentences. See Jones v. Governor of Fla., 950 F. 3d 795, 800 (CA11 2020) (Jones I ). Florida’s Legislature and high court have interpreted the amendment to condition voting eligibility on payment of all fines, fees, and restitution imposed

2

RAYSOR v. DESANTIS

SOTOMAYOR, J., dissenting
as part of a sentence. Id., at 800, 803–804; see also Fla. Stat. §98.0751 (2020 Cum. Supp.); Advisory Opinion to Governor re: Implementation of Amdt. 4, The Voting Restoration Amdt., 288 So. 3d 1070, 1081 (Fla. 2020). Under this scheme, nearly a million otherwise-eligible citizens cannot vote unless they pay money.
Well before the August 18, 2020, Florida primary, several indigent persons with felony convictions challenged the constitutionality of Florida’s voter paywall. Among other things, they claimed that this system violates the Equal Protection Clause, the Due Process Clause, and the Twenty-fourth Amendment.
In October 2019, the United States District Court for the Northern District of Florida issued a preliminary injunction, concluding that the plaintiffs were likely to show that Florida’s pay-to-vote scheme constitutes wealth discrimination in violation of the Equal Protection Clause. See Jones I, 950 F. 3d, at 805. The court enjoined state officials from preventing the plaintiffs from registering to vote, or from voting, simply because they are unable to pay their outstanding legal financial obligations (LFOs). See ibid.
Months later, the Eleventh Circuit affirmed. It too determined that the plaintiffs were likely to succeed on their equal protection claims. Id., at 817. The Eleventh Circuit further found that Florida’s pay-to-vote scheme would fail rational-basis review as applied to indigent persons, id., at 810–813, and may also fail as applied to all persons with felony convictions if “a substantial enough proportion” of them genuinely “cannot pay,” id., at 814. The Eleventh Circuit declined to rehear the case en banc. For months, then, the Eleventh Circuit’s decision in Jones I has set out the legal rights of indigent would-be voters like the plaintiffs here.
With the preliminary injunction still in place, the District Court certified a class of prospective voters on the equal protection and Twenty-fourth Amendment claims and held

Cite as: 591 U. S. ____ (2020)

3

SOTOMAYOR, J., dissenting
a bench trial. The 8-day trial included thousands of records and testimony from the plaintiffs, state and county officials, public defenders, and experts. On May 24, 2020, the District Court entered a permanent injunction and issued its factual findings and legal conclusions in a 125-page opinion. See generally Jones v. DeSantis, ___ F. Supp. 3d ___, 2020 WL 2618062 (ND Fla., May 24, 2020) (Jones II ).
The District Court first found an equal protection violation. Guided by the Eleventh Circuit’s controlling analysis in Jones I, the District Court concluded that Florida’s payto-vote system creates an unconstitutional wealth barrier to voting. Jones II, ___ F. Supp. 3d, at ___, 2020 WL 2618062, *14. The court held that the system lacks any rational basis, finding “as a fact” that “the overwhelming majority of felons who have not paid their LFOs in full, but who are otherwise eligible to vote, are genuinely unable to pay the required amount.” Id., at ___, 2020 WL 2618062, *16. There was no sound reason, the District Court concluded, for Florida’s decision to bar ballot access on the basis of indigence. Ibid.
Next, the District Court held that Florida’s scheme violates due process. Crediting expert testimony, the court determined that “many felons do not know, and some have no way to find out, the amount of LFOs included in a judgment.” Ibid. Not only does Florida provide individuals inconsistent information, but the State’s own records are incomplete and unreliable; the District Court even found that Florida lacks records of restitution payments it has received. Id., at ___, 2020 WL 2618062, *16–*20. Based on the State’s estimates, moreover, the District Court noted that Florida officials would need about six years to determine how much (if anything) currently registered voters (to say nothing of those who seek to register) must pay to vote. Id., at ___, 2020 WL 2618062, *24. Compounding the problem, the District Court found, is that Florida law puts the

4

RAYSOR v. DESANTIS

SOTOMAYOR, J., dissenting
risk of error on the prospective voter, suggesting on its registration forms that a false affirmation of voting eligibility is a felony “regardless of willfulness.” Id., at ___, 2020 WL 2618062, *25.
Last, the District Court concluded that Florida’s payment requirement is a tax abridging the right to vote in violation of the Twenty-fourth Amendment. Id., at ___, 2020 WL 2618062, *29. In the District Court’s view, the required payments are taxes because Florida assesses them “regardless of ” a defendant’s “culpability,” and for the “sole” or “primary purpose of raising revenue to pay for government operations—for things the state must provide, such as a criminal-justice system, or things the state chooses to provide, such as a victim-compensation fund.” Ibid.
Having found several grounds for awarding relief, the District Court prescribed remedies tailored to the State’s existing procedures. In effect, the District Court’s remedies created a rebuttable presumption of inability to pay for any person who the State had already determined was indigent. Id., at ___, 2020 WL 2618062, *43. At the State’s suggestion, id., at ___, 2020 WL 2618062, *42–*43, the District Court required the Secretary of State to permit voters to seek an advisory opinion from Florida’s Division of Elections regarding the amount owed or their inability to pay, id., at ___, 2020 WL 2618062, *44–*46. The court also ordered that a person could register and vote without being prosecuted if the division did not provide a timely advisory opinion within 21 days. Ibid.
On July 1, 2020—over a month after the District Court’s judgment and 19 days before the voter-registration deadline—the Eleventh Circuit stayed the permanent injunction pending appeal. The Court of Appeals provided no reasons for its order.
II
This Court errs in refusing to vacate that stay. The Court

Cite as: 591 U. S. ____ (2020)

5

SOTOMAYOR, J., dissenting
may vacate an appellate court stay where (1) the case “could and very likely would be reviewed here upon final disposition in the court of appeals,” (2) “the rights of the parties . . . may be seriously and irreparably injured by the stay,” and (3) “the court of appeals is demonstrably wrong in its application of accepted standards in deciding to issue the stay.” Coleman v. Paccar Inc., 424 U. S. 1301, 1304 (1976) (Rehnquist, J., in chambers). Although the Court exercises this power sparingly, it has done so in voting-rights cases like this one. See, e.g., Frank v. Walker, 574 U. S. 929 (2014) (vacating Court of Appeals stay of permanent injunction).
This case easily meets the first two Coleman prongs. By the District Court’s count, “nearly a million” persons are barred from voting because of Florida’s alleged wealth discrimination, inscrutable processes, and tax. See Jones II, ___ F. Supp. 3d, at ___, 2020 WL 2618062, *1. A case implicating the franchise of almost a million people is exceptionally important and likely to warrant review. See this Court’s Rule 10. And there is no question that these people would suffer irreparable harm were they denied the vote or “incentiv[ized] to remain away from the polls” because of the Eleventh Circuit’s conflicting orders or Florida’s threat of prosecution. Purcell, 549 U. S., at 5. By contrast, the State has not shown comparable injury, especially because the District Court’s remedies employ existing state procedures that the State itself proposed. Jones II, ___ F. Supp. 3d, at ___, 2020 WL 2618062, *42–*43.
As for the third prong, the Eleventh Circuit was “demonstrably wrong in its application of accepted standards in deciding to issue the stay.” Coleman, 424 U. S., at 1304. The Court of Appeals not only failed to defer to the District Court’s factual findings, but it also appears to contradict its prior view of the plaintiffs’ equal protection claims. For starters, the District Court made extensive “factual findings to which the Court of Appeals owed deference,” Purcell,

6

RAYSOR v. DESANTIS

SOTOMAYOR, J., dissenting
549 U. S., at 5, including that Florida’s pay-to-vote scheme overwhelmingly affects the indigent and is intended to fund state services regardless of any person’s criminal culpability, Jones II, ___ F. Supp. 3d, at ___, ___, 2020 WL 2618062, *16, *29. The Eleventh Circuit’s “bare order” staying the District Court’s decision does not “provide any factual findings or indeed any reasoning of its own,” and “[t]here has been no explanation given by the Court of Appeals showing the ruling and findings of the District Court to be incorrect.” Purcell, 549 U. S., at 5. The law required the Eleventh Circuit to “give deference to the discretion of the District Court,” but there is “no indication that it did so.” Ibid. That is the precise error this Court corrected in Purcell.
Equally important, the Eleventh Circuit has created the very “confusion” and voter chill that Purcell counsels courts to avoid. Ibid. Precisely because the District Court’s decision in Jones II tracked the Eleventh Circuit’s decision in Jones I, the stay upends the legal status quo nearly a year after the preliminary injunction took effect. Moreover, the Eleventh Circuit did not vacate Jones I—a point that further obfuscates the state of the law for would-be voters just 19 days before the voter-registration deadline. No doubt tens of thousands of Floridians with felony convictions have already registered to vote: That is precisely what Jones I said they could do. The State even admitted at trial that 85,000 registrations needed screening based on prior felony convictions (including eligibility involving LFOs). Jones II, ___ F. Supp. 3d, at ___, 2020 WL 2618062, *24. Those who registered in reliance on the preliminary and permanent injunctions will remain on the voter rolls despite the Eleventh Circuit’s stay. See ibid. (finding that it would take the State about six years to review these records). Yet because of the Eleventh Circuit’s decision, these voters will have no notice of their potential ineligibility or the resulting criminal prosecution they may face for failing to follow the abrupt change in law. Making matters worse, the Eleventh Circuit will

Cite as: 591 U. S. ____ (2020)

7

SOTOMAYOR, J., dissenting
not hear argument on this case until August 18, the day of the primary election.
In short, the plaintiffs have raised serious claims, some of which the Eleventh Circuit already found likely to succeed. Because the parties’ rights and the legal framework had been well established, it was error to for the Eleventh Circuit to reverse course in an unexplained stay order right before an election.
* * *
This Court’s inaction continues a trend of condoning disfranchisement. Ironically, this Court has wielded Purcell as a reason to forbid courts to make voting safer during a pandemic, overriding two federal courts because any safetyrelated changes supposedly came too close to election day. See Republican National Committee v. Democratic National Committee, 589 U. S. ___ (2020) (per curiam). Now, faced with an appellate court stay that disrupts a legal status quo and risks immense disfranchisement—a situation that Purcell sought to avoid—the Court balks.
I respectfully dissent.

 </s> Case: 20-12003 Date Filed: 07/27/2020 Page: 1 of 25
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_________________________
No. 20-12003-U _________________________
KELVIN LEON JONES, BONNIE RAYSOR, DIANE SHERRILL, Individually and on behalf of others similarly situated, JEFF GRUVER, EMORY MARQUIS MITCHELL, MARQ, et al.,
Plaintiffs - Appellees,
ROSEMARY MCCOY, SHEILA SINGLETON,
Plaintiffs - Appellees - Cross - Appellants,
versus
GOVERNOR OF FLORIDA, FLORIDA SECRETARY OF STATE,
Defendants - Appellants - Cross Appellees,
__________________________
On Appeal from the United States District Court for the Northern District of Florida
__________________________
BEFORE: LUCK and LAGOA, Circuit Judges:
Appellees have moved to disqualify us from this case because, as Justices on

Case: 20-12003 Date Filed: 07/27/2020 Page: 2 of 25
the Florida Supreme Court, we heard oral argument in Advisory Opinion to the Governor re: Implementation of Amendment 4, the Voting Restoration Amendment, 288 So. 3d 1070 (Fla. 2020).1 Appellees contend that, having heard oral argument in Advisory Opinion to the Governor, we must disqualify ourselves: (1) under Canon 3(C)(1)(e) of the Code of Conduct for United States Judges because, they argue, we participated in the present “proceeding” in our “previous judicial position[s]”; and (2) under 28 U.S.C. section 455(a) because, they argue, our impartiality might reasonably be questioned based on our questioning during oral argument in the Advisory Opinion to the Governor proceeding and our answers to the Senate Judiciary Committee during our confirmation. As discussed below, these two cases involve different kinds of proceedings (advisory opinion vs. Article III case-and-controversy), in different courts (state supreme court vs. federal court), with different issues (interpreting state constitution vs. federal constitutional questions), and different players (“interested persons” vs. parties). And nothing in this case asks us to review the correctness of the Florida Supreme Court’s decision in Advisory Opinion to the Governor. For the following reasons, the motion is denied.
1 Neither of us was a member of the Florida Supreme Court when it issued Advisory Opinion to the Governor.
2

Case: 20-12003 Date Filed: 07/27/2020 Page: 3 of 25
Canon 3(C)(1)(e) Canon 3(C)(1)(e) provides that “[a] judge shall qualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances in which . . . the judge has served in governmental employment and in that capacity participated as a judge (in a previous judicial position), counsel, advisor, or material witness concerning the proceeding.” Code of Conduct for United States Judges Canon 3(C)(1)(e) (2019). “[P]roceeding” is defined to include “pretrial, trial, appellate review, or other stages of litigation.” Id. Canon 3(C)(3)(d). Appellees argue that two separate cases—the Advisory Opinion to the Governor proceeding and this case—are stages of the same case and part of the same “proceeding.” But they are not. Canon 3(C)(1)(3)’s text and the case law interpreting “proceeding” are clear that the term refers to the single case before the judge and not a separate, even if related, proceeding or case. The canons, for obvious reasons, are aimed at discouraging judges from being involved in the decision of cases in which they’ve already participated. Because we’ve never participated in the present proceeding or case as a judge, counsel, advisor, or witness, Canon 3(C)(1)(3) does not compel our disqualification.
3

Case: 20-12003 Date Filed: 07/27/2020 Page: 4 of 25
As to the text of Canon 3(C), “other stages of litigation” of a proceeding, as used in the Code, must be read as similar in nature to “pretrial, trial,” and “appellate review.” “[W]here, as here, a more general term follows more specific terms in a list, the general term is usually understood to embrace only objects similar in nature to those objects enumerated by the preceding specific words.” Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1625 (2018) (internal quotation marks omitted); see also Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 114–15 (2001) (“Where general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words.” (quotation and alteration omitted)).
“Pretrial, trial,” and “appellate review” are major phases in a single lawsuit. The common feature is that all three are steps in the same litigation. In that light, “other stages of litigation,” as the general term, must also be read as stages of the same proceeding that are similar to pretrial, trial, and appellate review. Black’s Law Dictionary—which defines “proceeding” as the “regular and orderly progression of a lawsuit, including all acts and events between the time of commencement and entry of judgment”—lists some helpful examples of “other stages”:
[T]he term ‘proceeding’ may include – (1) the institution of the action; (2) the appearance of the defendant; (3) all ancillary and provisional
4

Case: 20-12003 Date Filed: 07/27/2020 Page: 5 of 25
steps, such as arrest, attachment of property, garnishment, injunction, writ of ne exeat; (4) the pleadings; (5) the taking of testimony before trial; (6) all motions made in the action; (7) the trial; (8) the judgment; (9) the execution; (10) proceedings supplementary to execution, in code practice; (11) the taking of the appeal or writ of error; (12) the remitter, or sending back of the record to the lower court from the appellate or reviewing court; (13) the enforcement of the judgment, or a new trial, as may be directed by the court of last resort.
Black’s Law Dictionary 1457 (11th ed. 2019) (emphasis added). The “other stages
of litigation”—in addition to pretrial, trial, and appellate review—could include
preliminary injunctions and attachments of property, post-judgment litigation,
enforcement of the judgment, and proceedings supplementary. Importantly, these
other stages are different steps in a single case.
Canon 3(C)(1)(e) also describes the proceeding in which the judge must have
participated (in his or her previous job) as “a proceeding” and “the proceeding.”
The articles “a” and “the” are important because they refer to a single and definite
case—the one before the judge—and not other separate and different proceedings.
See Nielsen v. Preap, 139 S. Ct. 954, 965 (2019) (“Because words are to be given
the meaning that proper grammar and usage would assign them, the rules of grammar
govern statutory interpretation unless they contradict legislative intent or purpose.
Here grammar and usage establish that ‘the’ is a function word indicating that a
following noun or noun equivalent is definite or has been previously specified by
context.” (alterations adopted; citations and internal quotation marks omitted));
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Rumsfeld v. Padilla, 542 U.S. 426, 434 (2004) (“The consistent use of the definite article in reference to the custodian indicates that there is generally only one proper respondent to a given prisoner’s habeas petition.”); Evanto v. Fed. Nat. Mortg. Ass’n, 814 F.3d 1295, 1298 (11th Cir. 2016) (“We presume that the statute uses the term ‘the disclosure statement’ consistently, especially because sections 1638 and 1641 connote one particular document by using a definite article (‘the’) and a singular noun (‘disclosure statement’).” (citations omitted)).
The other circuit courts have also read “proceeding” to mean the single case before the judge and not separate, related cases. Section 455, the “federal disqualification statute,” United States v, Sciarra, 851 F.2d 621, 634 (3d Cir. 1988), defines “proceeding” exactly as Canon 3(C)(3)(d) does to include “pretrial, trial, appellate review, and other stages of litigation.” 28 U.S.C. § 455(d)(1). The identical language was intentionally used; Congress enacted section 455 “[b]ased largely on Canon 3C of the ABA Code of Judicial Conduct.” Sciarra, 851 F.2d at 634.
The Seventh Circuit discussed the meaning of “proceeding” in United States v. Lara-Unzueta, 735 F.3d 954 (7th Cir. 2013). There, the defendant was convicted of one count of illegal reentry. Id. at 955. On appeal, the defendant argued that the district judge should have disqualified himself because he was district counsel
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for the Immigration and Naturalization Service when the defendant was originally
removed from the United States. Id. at 957–58. Section 455(b)(3) requires that a
judge disqualify himself “[w]here he has served in governmental employment and
in such capacity participated as counsel, adviser or material witness concerning the
proceeding.” Id. at 958–59 (quoting 28 U.S.C. § 455(b)(3)) (emphasis added).
The Seventh Circuit rejected the disqualification argument, and affirmed the
defendant’s conviction, because the district judge had not served as counsel or
advisor concerning the proceeding:
The proceeding means the current proceeding. This interpretation is dictated by the text of the statute. On July 21, 2011, Lara was indicted for the crime that is the subject of this direct appeal. On the day of Lara’s indictment, Judge Der-Yeghiayan had been a sitting United States District Judge for over eight years. Judge Der-Yeghiayan was not involved in the investigation, preparation of the indictment, presentment of the indictment, or prosecution of the 8 U.S.C. § 1326(a) conviction that is the subject of the proceeding—this criminal case. The present appeal of Lara’s criminal proceeding presided over by Judge Der-Yeghiayan in 2012 is not the same as Lara’s deportation proceeding from 1997-98.
Id. at 959.2
2 Appellees argue that even if the Advisory Opinion to the Governor proceeding and this case are not the same “proceeding,” Canon 3(C)(1)(e) requires disqualification in cases “concerning the proceeding,” which they claim is broader. The Seventh Circuit rejected the same argument in Lara-Unzueta:
At oral argument, counsel for Lara indicated that he “read the ‘concerning’ language differently.” By “differently” counsel suggested that “concerning” expands the scope of “the proceeding” to include Lara’s first deportation
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The First Circuit has also read “proceeding” to mean the current case before
the judge. In In re Vazquez-Bolet, 464 F.3d 54 (1st Cir. 2006), the defendant moved
to disqualify the district judge because his wife represented an unindicted co-
conspirator. Id. at 56–57. On behalf of the unindicted co-conspirator, she had
negotiated an immunity deal and her client testified before the grand jury and was a
potential prosecution witness. Id. She also had represented another unrelated
client whom the government considered calling as a “404(b) witness.” Id. On
behalf of this second, unrelated client, the judge’s wife publicly accused the
defendant in the case her husband was presiding over of intimidating her client and
privately threatened to notify the government that the defendant had violated the
conditions of his bond. Id.
proceeding in 1997-1998. He argued that if Judge Der-Yeghiayan rules on a dispositive motion that relies on a deportation order entered when the judge simply had supervisory responsibility over the INS office prosecuting that first deportation, then now-Judge Der-Yeghiayan has a role “concerning the proceeding,” subjecting him to disqualification. Not so. “Concerning” does not expand the scope of this disqualification statute. “Concerning” appears twice in 28 U.S.C. § 455(b)(3). Both references confine the proceeding to this proceeding. The particular case in controversy is this proceeding—an appeal from an indictment returned on July 21, 2011, for which Lara was convicted on August 6, 2012, and sentenced on January 3, 2013. Other than presiding over Lara’s trial, conviction, and sentence, Judge DerYeghiayan had nothing more to do with “the proceeding” that is the subject of this appeal. Lara-Unzueta, 735 F.3d at 959 (emphasis added) .
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The district judge denied a disqualification motion and the First Circuit denied the ensuing mandamus petition because “[t]he charge that [the judge’s wife] ‘[i]s acting as a lawyer in the proceeding’ under § 455(b)(5)(ii) does not provide a basis for mandamus relief.” Id. at 58. The First Circuit explained that the judge’s wife’s representation of her clients “occurred over ten months before this criminal case was initiated (the original indictment was returned on April 8, 2004).” Id. (emphasis added). “Even though the word ‘proceeding’ is defined to include ‘pretrial, trial, appellate review, or other stages of litigation,’ 28 U.S.C. § 455(d)(1), [the district judge] was not clearly mistaken in confining his attention here ‘to the litigation encompassed by this indictment.’” Id. (emphasis added); see also United States v. Sarno, 41 F. App’x 603, 609 (4th Cir. 2002) (affirming denial of disqualification motion because, although the judge’s son had some involvement in the case early on, he “was never retained nor appeared as a lawyer of record in this case” (emphasis added)); Rural Tel. Fin. Coop. v. Prosser, No. Civ. 2004-132, 2005 WL 3077607, at *5 (D.V.I. Nov. 16, 2005) (denying disqualification motion where the judge’s spouse appeared on behalf of one of the parties in front of the Public Service Commission because “the September 10, 2004 PSC hearing was not a proceeding as defined in section 455(d)(1). . . . Although the examples in section 455(d)(1) do not appear to be exclusive, the list seems to only include stages of litigation. The September 10,
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2004, PSC hearing was not a part of the Virginia litigation, nor could it be. In fact,
any regulatory issue addressed at the PSC hearing remains separate and distinct from
the default and guarantee proceedings before this Court. The proceeding to which
section 455(d) refers to is the one before this Court (either the default or guarantee
action).” (emphasis added)).
Like section 455(d)(1), “the proceeding” in Canon 3(C)(1)(e) is the single
proceeding currently before the judge. If the judge participated in the same
proceeding or case in his or her prior job, disqualification is required. But if the
judge participated in a different case, even if it’s related, disqualification is not
required.3
Even if “the proceeding” could mean more than the case currently before the
judge, it would not include the Advisory Opinion to the Governor proceeding. That
3 To be sure, disqualification is required in federal habeas cases where, as state trial or appellate judges, a judge heard the underlying trial, direct appeal, or state post-conviction motion, although the basis for disqualification is not that they involve the same “proceeding.” A federal habeas appeal and the underlying state trial and appellate proceedings are more than simply “related.” Not only are the parties, the issues, and the record substantially the same, unlike the situation here. But even more significantly, a federal habeas court, in effect, reviews the state courts’ findings and conclusions on the same federal constitutional issues. Thus, where a federal habeas appeal would require one of us to review the correctness of our own previous decision in an underlying state court matter, disqualification is required under 28 U.S.C. § 455(a), even though the federal habeas appeal and the underlying state court matter are not the same “proceeding.” See, e.g., Rice v. McKenzie, 581 F.2d 1114 (4th Cir. 1978) (district court judge could not sit on federal habeas case to review state supreme court’s adjudication of the same claims rendered while he was a member of that state supreme court). In this case, we are not asked to determine the correctness of the Florida Supreme Court’s decision in the Advisory Opinion to the Governor proceeding, and therefore concerns like those that arise in a federal habeas case do not exist.
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proceeding and this case are not the same or even similar types of cases, and do not have the same or even similar issues.
Procedurally, Advisory Opinion to the Governor is a unique type of proceeding under Florida law, with no federal equivalent. The Florida Constitution allows the governor to “request in writing the opinion of the justices of the supreme court as to the interpretation of any portion of this constitution upon any question affecting the governor’s executive powers and duties.” Fla. Const. Art. IV, § 1(c). The request is an original proceeding. There is no trial or intermediate appeal. No facts are developed for the record—there is no record. The opinion of the state supreme court, as the name suggests, is advisory only.
This case, by contrast, is not an advisory proceeding. Federal courts don’t issue advisory opinions. See Golden v. Zwickler, 394 U.S. 103, 108 (1969) (“The federal courts established pursuant to Article III of the Constitution do not render advisory opinions.” (alteration adopted; internal quotation marks omitted)). This case began not with a member of the executive branch sending the court a letter asking for advice, but, as court cases traditionally do, with the plaintiffs suing the defendants. The plaintiffs and defendants exchanged discovery, had motion practice, and developed a record at trial; the district court held a trial, made findings of fact and conclusions of law that bind the class, and entered a judgment; and the
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losing parties appealed. None of that happened in the Advisory Opinion to the Governor proceeding—nor, as explained above, could it have.
This case has parties—not just interested persons, but parties. There are plaintiffs and defendants; appellants and appellees. The Advisory Opinion to the Governor proceeding had no parties—no plaintiffs, no defendants, no appellants, and no appellees. The Florida Constitution permits “interested persons to be heard on the questions presented” when the governor requests an advisory opinion. Fla. Const. Art. IV, § 1(c); Fla. R. App. P. 9.500(b)(2) (“[T]he court shall permit, subject to its rules of procedure, interested persons to be heard on the questions presented through briefs, oral argument, or both.”). And the Florida Supreme Court did hear from a wide range of “interested persons,” including the Florida Association of Criminal Defense Lawyers, the Florida House of Representatives, the Florida Senate, and one South Florida appellate attorney, Adam Richardson, who wanted to be heard on the question. Advisory Opinion to the Governor, 288 So. 3d at 1071. None of these “interested persons” are parties in this case. Not a single one. While the Florida Supreme Court’s advisory opinion is publicly available, it is addressed only to the governor, not to any of the “interested persons” who provided that court with input on the issue.
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Finally, the Advisory Opinion to the Governor proceeding and this case were filed in, and to be decided by, different judicial systems. Our system of federalism rests upon the guarantee that our federal and state governments retain their separate sovereign identities, and the state court systems are no more part of the federal court system than the state legislatures are part of Congress. The suggestion that the Advisory Opinion to the Governor proceeding and this case are the same “proceeding” misapprehends this basic premise of our national constitutional structure.4
In addition to the procedural distinctions between the two proceedings, the issues in the Advisory Opinion to the Governor proceeding were different from the issues in this case. The narrow—and only—issue in the Advisory Opinion to the Governor proceeding was “whether the phrase ‘all terms of sentence’ [in Amendment 4] encompasse[d] legal financial obligations (LFOs)—fines, restitution, costs, and fees—ordered by the sentencing court.” Id. at 1072. The governor, in his request for an advisory opinion, specifically said that he did “not ask [the] Court to address any issues regarding . . . the United States Constitution.” Id. at 1074. The Florida Supreme Court took the Governor at his word, noting that “[d]uring oral
4 Indeed, it is relatively common for separate, related cases to be pending simultaneously in the federal and state court systems, or to be pending simultaneously in different state court systems. Even though those cases often involve the same parties and issues, they are not the same “proceeding” for purposes of Canon 3(C).
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argument, counsel for the Governor made clear that the Governor requests advice
solely as to the narrow question of whether the phrase ‘all terms of sentence’
includes LFOs ordered by the sentencing court. We answer only that question.”
Id. at 1074–75 (emphasis added). That’s all that the proceeding involved and all
the Florida Supreme Court decided. Its advisory opinion said not one word about
any federal constitutional issue.5
In the present case, by contrast, the meaning of “completion of all terms of
sentence” is not an issue. Before the Governor requested an advisory opinion from
5 Appellees argue that the constitutional avoidance canon of statutory construction was involved before the Florida Supreme Court, and because it was, the Fourteenth and Twenty-Fourth Amendment issues in this case were considered in the Advisory Opinion to the Governor proceeding. The fundamental flaw in that argument is that canon applies only if there are “competing plausible interpretations of statutory text.” The threshold requirement is that the language being interpreted is ambiguous. See Iancu v. Brunetti, 139 S. Ct. 2294, 2301 (2019) (“This Court, of course, may interpret ambiguous statutory language to “avoid serious constitutional doubts. But that canon of construction applies only when ambiguity exists.” (citation and internal quotation marks omitted; emphasis added)); F.C.C. v. Fox Tel. Stations, Inc., 556 U.S. 502, 516 (2009) (“The so-called canon of constitutional avoidance is an interpretive tool, counseling that ambiguous statutory language be construed to avoid serious constitutional doubts.” (emphasis added)).
The Florida Supreme Court in its advisory opinion did not even mention the constitutional avoidance canon for the obvious reason, as its opinion makes clear, that it was not involved or applied. It was not involved or applied because the court unanimously found that the meaning of the phrase “all terms of sentence” was plain, it was clear, there was no ambiguity. See Advisory Opinion to the Governor, 288 So. 3d at 1081 (“We conclude that ‘all terms of sentence’ plainly encompasses not only durational terms but also obligations and therefore includes all LFOs imposed in conjunction with an adjudication of guilt. As explained next, we reject as overly technical the arguments advanced by certain Non-State Parties that Amendment 4 encompasses only some LFOs.” (emphasis added)).
Because it found there was no basis for doubt about what that language meant, and because the Governor’s request expressly excluded any question about any federal constitutional issue, the Florida Supreme Court did not consider or discuss, directly or indirectly, explicitly or implicitly, the federal constitutional issues involved in the present case. It had no occasion to do so.
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the Florida Supreme Court, Appellees themselves alleged in their complaint that Senate Bill 7066 defined the phrase “to include not only any term of imprisonment, probation, community control or supervision (collectively, ‘carceral supervision’), but also the full payment of any LFOs, including restitution, fines and fees ‘ordered by the court as part of the sentence or that are ordered by the court as a condition of any form of supervision,’ even if those obligations have been converted to civil liens.” (DE 84 at 16–17.) Thus, this case takes as a given that Florida requires full payment of LFOs before restoration of voting rights and, assuming that, asks whether this requirement violates the Fourteenth and Twenty-Fourth Amendments.
Section 455(a) and the Senate Judiciary Committee Questionnaires Appellees also contend that we’re disqualified under 28 U.S.C. section 455(a) because of our questioning during oral argument in the Advisory Opinion to the Governor proceeding and our written answers to questions from the Senate Judiciary Committee. Section 455(a) requires that a judge “disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). “[T]he standard for determining whether a judge should disqualify himself under [section] 455 is an objective one, whether a reasonable person knowing all the facts would conclude that the judge’s impartiality might reasonably be questioned.”
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United States v. Greenough, 782 F.2d 1556, 1558 (11th Cir. 1986); see also United States v. Scrushy, 721 F.3d 1288, 1303 (11th Cir. 2013) (motion to recuse under section 455(a) is “whether an objective, disinterested lay observer fully informed of the facts underlying the grounds on which recusal was sought would entertain a significant doubt about the judge’s impartiality”); United States v. Carlton, 534 F.3d 97, 100 (2d Cir. 2008) (“In determining whether Section 455(a) requires recusal, the appropriate standard is objective reasonableness—whether ‘an objective, disinterested observer fully informed of the underlying facts [would] entertain significant doubts that justice would be done absent recusal.’” (citations omitted)). Moreover, section 455(a)’s recusal requirement is “commonly limited to those circumstances in which the alleged partiality ‘stem[s] from an extrajudicial source.’” Carlton, 534 F.3d at 100 (quoting Liteky v. United States, 510 U.S. 540, 544 (1994)).
Carlton is instructive on the application of that objective standard. In that case, the defendant had been on a five-year term of supervised release resulting from a previous bank robbery conviction. The government sought revocation of supervised release, alleging that the defendant committed another bank robbery while on supervised release. The district court held a revocation hearing and, after concluding that the government had proved by a preponderance of the evidence that the defendant had committed the second robbery, revoked the defendant’s term of
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supervised release and imposed a 30-month term of imprisonment for the previous bank robbery conviction. Later, the defendant was indicted on three counts relating to the second bank robbery, and the case was assigned to the same district court judge who had held the revocation hearing and determined that the defendant had committed the second bank robbery. The defendant moved to recuse under section 455(a), and the district court denied that motion. The case proceeded to trial and then appeal, including appeal of the denial of the recusal motion. The Second Circuit concluded that section 455(a) did not require recusal, holding that “[h]aving heard evidence and made a determination of defendant’s guilt in a revocation hearing, a judge may properly preside over the subsequent criminal trial for the same offense.” Id.
The Second Circuit in Carlton relied on Liteky in reaching its conclusion. In Liteky, the Supreme Court did not adopt a bright line rule that section 455(a) only applied to extrajudicial conduct, but stated that “it would be better to speak of the existence of a significant (and often determinative) ‘extrajudicial source’ factor, than of an ‘extrajudicial source’ doctrine, in recusal jurisprudence.” 510 U.S. at 554–55. The Supreme Court then described judicial conduct that would not require recusal under section 455(a). “First, judicial rulings alone almost never constitute a valid basis for a bias or partiality motion. In and of themselves (i.e., apart from
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surrounding comments or accompanying opinion), they cannot possibly show reliance upon an extrajudicial source, and can only in the rarest circumstances evidence the degree of favoritism or antagonism required . . . when no extrajudicial source is involved.” Id. at 555. The Supreme Court continued: “Second, opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. Thus, judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge.” Id.
The Supreme Court then turned to Berger v. United States, 255 U.S. 22 (1921) as an example of judicial remarks that would constitute “high degree of favoritism or antagonism that would make fair judgment impossible.” Berger involved a World War I espionage case against German-American defendants. During the trial, the district court allegedly said: “‘One must have a very judicial mind, indeed, not [to be] prejudiced against the German Americans’ because their ‘hearts are reeking with disloyalty.’” Liteky, 510 U.S. at 555 (quoting Berger, 255 U.S. at 28). Thus, to the extent that Appellees argue that our questions at oral argument in Advisory
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Opinion to the Governor in and of themselves form a basis for disqualification under
section 455(a), having reviewed the questions cited in Appellees’ brief and using the
objective standard required by section 455(a), those questions fail to meet the
standard for recusal.
Turning to the substance of our written statements to the Senate Judiciary
Committee, in our written answers to the Committee, we explained how we would
resolve potential disqualification issues. Judge Luck wrote:
The impartiality of judges, and the appearance of impartiality, are important for ensuring public confidence in our federal courts. If confirmed, I would carefully evaluate every case to determine whether recusal is warranted. In making these determinations, I will consult 28 U.S.C. § 455 and the Code of Conduct for United States Judges, as well as other applicable rules or guidance. I will also, as necessary and appropriate, consult with colleagues and ethics officials within the court system. I anticipate that there will be matters from which I will need to recuse myself, most notably cases on which I served as a lawyer, or as a trial or appellate judge. In every case, I will carefully consider whether recusal is necessary.
Similarly, Judge Lagoa wrote:
The impartiality of judges, and the appearance of impartiality, are key to ensuring public confidence in our courts. A judge must recuse herself where her impartiality “might reasonably be questioned.” 28 U.S.C. § 455(a); Canon 3(C)(1), Code of Judicial Conduct for United States Judges. If confirmed, I would conscientiously review and follow the standards for judicial recusal set forth in 28 U.S.C. § 455(a) and the Code of Conduct for United States Judges, as well as any other applicable rules or guidance. As necessary and appropriate, I would also consult with colleagues and ethics officials within the federal court system.
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In terms of specific examples of the types of cases I would recuse from if confirmed, I would recuse from cases in which my husband or his law firm appeared, as well as cases involving either the Supreme Court of Florida or the Florida Third District Court of Appeals while I was a member of either court. In addition, and as described in my responses to the Committee’s Questionnaire, I currently conduct a review of each case assigned to me and apply the standards for judicial recusal under the Florida standard to determine whether I should recuse myself from a particular case. During my over 13 years on the bench, I have occasionally recused myself from cases based on that case-by-case review, for example where I knew a party or witness involved. If confirmed to the Eleventh Circuit, I would continue to conduct a review of each case assigned to me and apply the standards for judicial recusal in determining whether to recuse myself.
This is exactly what we have done. We’ve reviewed the Code of Conduct for
United States Judges and 28 U.S.C. section 455. We have also consulted with
experienced colleagues. We have carefully considered whether disqualification is
legally required, and because we did not serve as lawyers or trial or appellate judges
in this case, we’ve concluded that it is not.
Appellees point out that Judge Luck also wrote that “[i]f confirmed, I will
recuse myself from any case where I ever played any role.” Similarly, they point
out that Judge Lagoa wrote that “I would recuse myself from any case in which I
participated as a justice on the Supreme Court of Florida” and that if confirmed, “I
would recuse from cases . . . involving either the Supreme Court of Florida or the
Florida Third District Court of Appeals while I was a member of either Court.” In
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keeping with our pledge to the Committee, we have recused in those types of cases
and we will continue to do so.6
Our statements to the Committee expressly use the word “case” to refer to a
case pending before this Court. Appellees argue that, because as Justices on the
Florida Supreme Court we heard oral argument in the Advisory Opinion to the
Governor proceeding, we “played a role” or “participated” in this case. Thus,
according to Appellees, if we do not recuse ourselves from this case we are not
honoring our pledges and our impartiality might reasonably be questioned under
section 455(a). Appellees’ reading, however, suffers from the same mistaken
6 For example, both Judge Luck and Judge Lagoa disqualified themselves from Calhoun v. Sec’y, Dep’t of Corrs., Case No. 19-12331 and Dailey v. Sec’y, Dep’t of Corrs., Case No. 1915147, two federal habeas appeals. Additionally, Judge Luck has disqualified himself in Wilson v. Sec’y, Fla. Dep’t of Corrs., Case No. 20-11089, and Judge Lagoa has disqualified herself in Rodriguez v. Att’y Gen., et. al, Case No. 18-12699, Sanchez v. Sec’y, Dep’t of Corrs., Case No. 19-12086, and Robinson v. Florida, Case No. 20-10982, all of which are other federal habeas appeals. While these federal habeas appeals were not the same “proceedings” as the respective underlying state court cases, they required this Court to review the federal constitutional issues decided by the state trial and appellate courts, including the appellate court decision in which Judge Luck and Judge Lagoa served as a member of the panel and rendered a decision. This Court, in effect, would be reviewing the correctness of the decision of those state courts. In this case, by contrast, this Court will not be deciding the correctness of anything that the Florida Supreme Court decided or expressed a view about in Advisory Opinion to the Governor, because it only addressed and decided state law issues and federal courts are required to accept as state law anything that a state supreme court decides is state law. See Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (“[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.” (alteration in original)); Waddington v. Sarausad, 555 U.S. 179, 192 (2009) (“[W]e have repeatedly held that it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.” (internal quotation marks omitted)).
Finally, as pledged to the Committee, Judge Lagoa has recused herself from cases where her husband’s law firm appeared as counsel. See, e.g., Schuh v. American Express Bank, et al., Case No. 18-12753.
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premise that we’ve already discussed in connection with Canon 3(C). That is, Appellees’ argument assumes that the Advisory Opinion to the Governor proceeding is the same proceeding or case as this case and that as a result we previously played a role, were involved, or participated in this case. We didn’t.
As we’ve already explained, this case and the Advisory Opinion to the Governor proceeding are not the same case. We did play a role, we were involved in, and we did participate in the Advisory Opinion to the Governor proceeding. We sat during oral argument and we asked questions to the lawyers appearing before that court. But Advisory Opinion to the Governor was a separate proceeding involving different persons, different issues, and different courts. Moreover, this case does not ask this Court to sit in review of or otherwise opine on the correctness of Advisory Opinion to the Governor—or any other decision by the Florida Supreme Court for that matter. We were never judges, lawyers, or litigants in this case, and did not have anything to do with this case, until after we became judges on this Court and Appellants filed their motion for rehearing en banc in the first appeal (the appeal from the preliminary injunction).
Appellees have not pointed to either judicial or extrajudicial statements that meet the legal standard requiring recusal under section 455(a). An objective, disinterested lay person, knowing that we asked questions in a different proceeding
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(advisory vs. case-and-controversy), in a different court (Florida Supreme Court vs.
federal court), with different issues (interpreting the state constitution vs. federal
constitutional questions), and with different participants (“interested persons” vs.
parties), would not reasonably entertain a significant doubt about our impartiality in
this case.7
Conclusion
“There are twin, and sometimes competing, policies that bear” on the
disqualification decision. Greenough, 782 F.2d at 1558.
7 Of note, Eleventh Circuit Rule 26.1-1 requires parties to file a Certificate of Interested Persons and Corporate Disclosure Statement at the outset of a case. The purpose of this filing is to alert judges to possible recusal issues. See, e.g., United States v. Dilullo, No. 2:07CV-0321KJD-PAL, 2007 WL 3124544, at *2 (D. Nev. Oct. 23, 2007) (stating that the certificate “is necessary to enable the judges who have been assigned to this case to evaluate possible recusal”). To that end, Rule 26.1-2(a) requires the party to list all “persons . . . who have an interest in the outcome of the particular case or appeal” in their Certificate. The Certificate is filed by appellants and appellees early in the life of an appeal, Rule 26.1-1(a), and well before any party knows which member of this Court will be assigned to the panel or sitting en banc in their case.
This case has come before this Court twice, once after the district court granted the preliminary injunction and now after the trial. Each time en banc consideration by this Court has been requested. To the extent Appellees believed that we already had played a role in this case, each Certificate of Interested Persons was their opportunity to alert us of their belief. Indeed, it is common practice for attorneys in federal habeas appeals to list all of the state trial and appellate judges involved in the underlying state court trial and post-conviction proceedings. For example, the Certificates of Interested Persons filed in the federal habeas appeals discussed in footnote 6 did just that—they listed all of the state trial and appellate judges in the underlying state court proceedings, including Judge Luck and Judge Lagoa, who sat as members of the appellate panels that rendered decisions in the underlying state court actions. Significantly, Appellees did not list us—or any of the Florida Supreme Court Justices who participated in the Advisory Opinion to the Governor proceeding—on any of their Certificates. While the Certificate is not itself dispositive, as judges retain their own responsibility to review cases for potential disqualification issues, it confirms our conclusion that an objective, disinterested person knowing all of the facts and circumstances would not reasonably question our impartiality in this case.
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The first is that courts must not only be, but must seem to be, free of bias or prejudice. . . . A second policy is that a judge, having been assigned to a case, should not recuse himself on unsupported, irrational, or highly tenuous speculation. If this occurred the price of maintaining the purity of the appearance of justice would be the power of litigants or third parties to exercise a veto over the assignment of judges.
Because there exists this second policy, our inquiry cannot stop with the questions: have a number of people thought or said that a judge should not preside over a given case? has the judge’s failure to recuse himself been a subject of unfavorable comment in the media? or, would the judge have avoided controversy and the need for appellate review had he stepped aside?
Id. (quoting In re United States, 666 F.2d 690, 694 (1st Cir. 1981)). Or, as our Court
has explained, “there is as much obligation for a judge not to recuse when there is
no occasion for him to do so as there is for him to do so when there is.” In re Moody,
755 F.3d 891, 895 (11th Cir. 2014) (internal quotation marks omitted). Having
reviewed Appellees’ motion, the Code of Conduct for United States Judges, section
455, the case law interpreting these provisions, Appellants’ response, and Appellees’
reply, we conclude that there is no occasion for us to recuse and we deny the
disqualification motion.8
8 Appellants argue that the motion to recuse should be denied on untimeliness grounds because Appellees delayed in filing it. Although there is no explicit timeliness requirement in section 455, the general rule is that if a party knows of circumstances that could lead a reasonable person to question the judge’s impartiality, but does not make a motion for disqualification within a reasonable time after discovering these facts, that party may forfeit any available relief under section 455.
There is substantial authority supporting the Appellants’ position that the motion could be 24

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denied because it was not promptly filed. See, e.g., Summers v. Singletary, 119 F.3d 917, 921 (11th Cir. 1997); Phillips v. Amoco Oil Co., 799 F.2d 1464, 1472 (11th Cir. 1986) (“Counsel, knowing the facts claimed to support a [section] 455(a) recusal for appearance of partiality may not lie in wait . . . .”); United States v. Sykes, 7 F.3d 1331, 1339 (7th Cir. 1993) (denying a section 144 motion to recuse, in part, because filing the motion “[t]wo months after the allegedly prejudicial statement is certainly not ‘at the earliest possible moment’ after discovery of the prejudice”); see also Richard E. Flamm, Recusal and Disqualification of Judges: For Cause Motions, Peremptory Challenges and Appeals 189 (2018) (“Title 28 U.S.C. § 455 has often been interpreted in such a way as to require that a motion to disqualify a judge must be made in a timely fashion.”); id. at 192 (“Most of the courts that have had an opportunity to consider the matter have ruled that a [section] 144 challenge [seeking recusal] that is not made in a timely fashion is subject to being rejected on that basis”); id. at 191 (“Courts have often refused to entertain objections [to a judge sitting] that have been lodged in an insufficiently prompt manner. Judges have been particularly reluctant to entertain [section] 144 motions that are not filed until after a substantive motion in the case has been made.”).
Here, the motion was not filed until July 15, 2020, which was 140 days after the petition for rehearing en banc was filed on February 26, 2020 in the appeal from the grant of the preliminary injunction, and 34 days after the petition for hearing en banc was filed in this case seeking review of the grant of the permanent injunction. See Pet. Reh’g En Banc, Jones v. Governor of Fla., 950 F.3d 795 (11th Cir. 2020) (No. 19-14551); Pet. Initial Hr’g En Banc, Jones v. Governor of Fla., No. 20-12003 (11th Cir. June 11, 2020).
Nonetheless, it is not necessary to decide whether the motion to disqualify should be denied as untimely because it is denied for the reasons we have already explained.
25

 </s> Case: 20-12003 Date Filed: 07/27/2020 Page: 1 of 25
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_________________________
No. 20-12003-U _________________________
KELVIN LEON JONES, BONNIE RAYSOR, DIANE SHERRILL, Individually and on behalf of others similarly situated, JEFF GRUVER, EMORY MARQUIS MITCHELL, MARQ, et al.,
Plaintiffs - Appellees,
ROSEMARY MCCOY, SHEILA SINGLETON,
Plaintiffs - Appellees - Cross - Appellants,
versus
GOVERNOR OF FLORIDA, FLORIDA SECRETARY OF STATE,
Defendants - Appellants - Cross Appellees,
__________________________
On Appeal from the United States District Court for the Northern District of Florida
__________________________
BEFORE: LUCK and LAGOA, Circuit Judges:
Appellees have moved to disqualify us from this case because, as Justices on

Case: 20-12003 Date Filed: 07/27/2020 Page: 2 of 25
the Florida Supreme Court, we heard oral argument in Advisory Opinion to the Governor re: Implementation of Amendment 4, the Voting Restoration Amendment, 288 So. 3d 1070 (Fla. 2020).1 Appellees contend that, having heard oral argument in Advisory Opinion to the Governor, we must disqualify ourselves: (1) under Canon 3(C)(1)(e) of the Code of Conduct for United States Judges because, they argue, we participated in the present “proceeding” in our “previous judicial position[s]”; and (2) under 28 U.S.C. section 455(a) because, they argue, our impartiality might reasonably be questioned based on our questioning during oral argument in the Advisory Opinion to the Governor proceeding and our answers to the Senate Judiciary Committee during our confirmation. As discussed below, these two cases involve different kinds of proceedings (advisory opinion vs. Article III case-and-controversy), in different courts (state supreme court vs. federal court), with different issues (interpreting state constitution vs. federal constitutional questions), and different players (“interested persons” vs. parties). And nothing in this case asks us to review the correctness of the Florida Supreme Court’s decision in Advisory Opinion to the Governor. For the following reasons, the motion is denied.
1 Neither of us was a member of the Florida Supreme Court when it issued Advisory Opinion to the Governor.
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Case: 20-12003 Date Filed: 07/27/2020 Page: 3 of 25
Canon 3(C)(1)(e) Canon 3(C)(1)(e) provides that “[a] judge shall qualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances in which . . . the judge has served in governmental employment and in that capacity participated as a judge (in a previous judicial position), counsel, advisor, or material witness concerning the proceeding.” Code of Conduct for United States Judges Canon 3(C)(1)(e) (2019). “[P]roceeding” is defined to include “pretrial, trial, appellate review, or other stages of litigation.” Id. Canon 3(C)(3)(d). Appellees argue that two separate cases—the Advisory Opinion to the Governor proceeding and this case—are stages of the same case and part of the same “proceeding.” But they are not. Canon 3(C)(1)(3)’s text and the case law interpreting “proceeding” are clear that the term refers to the single case before the judge and not a separate, even if related, proceeding or case. The canons, for obvious reasons, are aimed at discouraging judges from being involved in the decision of cases in which they’ve already participated. Because we’ve never participated in the present proceeding or case as a judge, counsel, advisor, or witness, Canon 3(C)(1)(3) does not compel our disqualification.
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As to the text of Canon 3(C), “other stages of litigation” of a proceeding, as used in the Code, must be read as similar in nature to “pretrial, trial,” and “appellate review.” “[W]here, as here, a more general term follows more specific terms in a list, the general term is usually understood to embrace only objects similar in nature to those objects enumerated by the preceding specific words.” Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1625 (2018) (internal quotation marks omitted); see also Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 114–15 (2001) (“Where general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words.” (quotation and alteration omitted)).
“Pretrial, trial,” and “appellate review” are major phases in a single lawsuit. The common feature is that all three are steps in the same litigation. In that light, “other stages of litigation,” as the general term, must also be read as stages of the same proceeding that are similar to pretrial, trial, and appellate review. Black’s Law Dictionary—which defines “proceeding” as the “regular and orderly progression of a lawsuit, including all acts and events between the time of commencement and entry of judgment”—lists some helpful examples of “other stages”:
[T]he term ‘proceeding’ may include – (1) the institution of the action; (2) the appearance of the defendant; (3) all ancillary and provisional
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steps, such as arrest, attachment of property, garnishment, injunction, writ of ne exeat; (4) the pleadings; (5) the taking of testimony before trial; (6) all motions made in the action; (7) the trial; (8) the judgment; (9) the execution; (10) proceedings supplementary to execution, in code practice; (11) the taking of the appeal or writ of error; (12) the remitter, or sending back of the record to the lower court from the appellate or reviewing court; (13) the enforcement of the judgment, or a new trial, as may be directed by the court of last resort.
Black’s Law Dictionary 1457 (11th ed. 2019) (emphasis added). The “other stages
of litigation”—in addition to pretrial, trial, and appellate review—could include
preliminary injunctions and attachments of property, post-judgment litigation,
enforcement of the judgment, and proceedings supplementary. Importantly, these
other stages are different steps in a single case.
Canon 3(C)(1)(e) also describes the proceeding in which the judge must have
participated (in his or her previous job) as “a proceeding” and “the proceeding.”
The articles “a” and “the” are important because they refer to a single and definite
case—the one before the judge—and not other separate and different proceedings.
See Nielsen v. Preap, 139 S. Ct. 954, 965 (2019) (“Because words are to be given
the meaning that proper grammar and usage would assign them, the rules of grammar
govern statutory interpretation unless they contradict legislative intent or purpose.
Here grammar and usage establish that ‘the’ is a function word indicating that a
following noun or noun equivalent is definite or has been previously specified by
context.” (alterations adopted; citations and internal quotation marks omitted));
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Rumsfeld v. Padilla, 542 U.S. 426, 434 (2004) (“The consistent use of the definite article in reference to the custodian indicates that there is generally only one proper respondent to a given prisoner’s habeas petition.”); Evanto v. Fed. Nat. Mortg. Ass’n, 814 F.3d 1295, 1298 (11th Cir. 2016) (“We presume that the statute uses the term ‘the disclosure statement’ consistently, especially because sections 1638 and 1641 connote one particular document by using a definite article (‘the’) and a singular noun (‘disclosure statement’).” (citations omitted)).
The other circuit courts have also read “proceeding” to mean the single case before the judge and not separate, related cases. Section 455, the “federal disqualification statute,” United States v, Sciarra, 851 F.2d 621, 634 (3d Cir. 1988), defines “proceeding” exactly as Canon 3(C)(3)(d) does to include “pretrial, trial, appellate review, and other stages of litigation.” 28 U.S.C. § 455(d)(1). The identical language was intentionally used; Congress enacted section 455 “[b]ased largely on Canon 3C of the ABA Code of Judicial Conduct.” Sciarra, 851 F.2d at 634.
The Seventh Circuit discussed the meaning of “proceeding” in United States v. Lara-Unzueta, 735 F.3d 954 (7th Cir. 2013). There, the defendant was convicted of one count of illegal reentry. Id. at 955. On appeal, the defendant argued that the district judge should have disqualified himself because he was district counsel
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Case: 20-12003 Date Filed: 07/27/2020 Page: 7 of 25
for the Immigration and Naturalization Service when the defendant was originally
removed from the United States. Id. at 957–58. Section 455(b)(3) requires that a
judge disqualify himself “[w]here he has served in governmental employment and
in such capacity participated as counsel, adviser or material witness concerning the
proceeding.” Id. at 958–59 (quoting 28 U.S.C. § 455(b)(3)) (emphasis added).
The Seventh Circuit rejected the disqualification argument, and affirmed the
defendant’s conviction, because the district judge had not served as counsel or
advisor concerning the proceeding:
The proceeding means the current proceeding. This interpretation is dictated by the text of the statute. On July 21, 2011, Lara was indicted for the crime that is the subject of this direct appeal. On the day of Lara’s indictment, Judge Der-Yeghiayan had been a sitting United States District Judge for over eight years. Judge Der-Yeghiayan was not involved in the investigation, preparation of the indictment, presentment of the indictment, or prosecution of the 8 U.S.C. § 1326(a) conviction that is the subject of the proceeding—this criminal case. The present appeal of Lara’s criminal proceeding presided over by Judge Der-Yeghiayan in 2012 is not the same as Lara’s deportation proceeding from 1997-98.
Id. at 959.2
2 Appellees argue that even if the Advisory Opinion to the Governor proceeding and this case are not the same “proceeding,” Canon 3(C)(1)(e) requires disqualification in cases “concerning the proceeding,” which they claim is broader. The Seventh Circuit rejected the same argument in Lara-Unzueta:
At oral argument, counsel for Lara indicated that he “read the ‘concerning’ language differently.” By “differently” counsel suggested that “concerning” expands the scope of “the proceeding” to include Lara’s first deportation
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The First Circuit has also read “proceeding” to mean the current case before
the judge. In In re Vazquez-Bolet, 464 F.3d 54 (1st Cir. 2006), the defendant moved
to disqualify the district judge because his wife represented an unindicted co-
conspirator. Id. at 56–57. On behalf of the unindicted co-conspirator, she had
negotiated an immunity deal and her client testified before the grand jury and was a
potential prosecution witness. Id. She also had represented another unrelated
client whom the government considered calling as a “404(b) witness.” Id. On
behalf of this second, unrelated client, the judge’s wife publicly accused the
defendant in the case her husband was presiding over of intimidating her client and
privately threatened to notify the government that the defendant had violated the
conditions of his bond. Id.
proceeding in 1997-1998. He argued that if Judge Der-Yeghiayan rules on a dispositive motion that relies on a deportation order entered when the judge simply had supervisory responsibility over the INS office prosecuting that first deportation, then now-Judge Der-Yeghiayan has a role “concerning the proceeding,” subjecting him to disqualification. Not so. “Concerning” does not expand the scope of this disqualification statute. “Concerning” appears twice in 28 U.S.C. § 455(b)(3). Both references confine the proceeding to this proceeding. The particular case in controversy is this proceeding—an appeal from an indictment returned on July 21, 2011, for which Lara was convicted on August 6, 2012, and sentenced on January 3, 2013. Other than presiding over Lara’s trial, conviction, and sentence, Judge DerYeghiayan had nothing more to do with “the proceeding” that is the subject of this appeal. Lara-Unzueta, 735 F.3d at 959 (emphasis added) .
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The district judge denied a disqualification motion and the First Circuit denied the ensuing mandamus petition because “[t]he charge that [the judge’s wife] ‘[i]s acting as a lawyer in the proceeding’ under § 455(b)(5)(ii) does not provide a basis for mandamus relief.” Id. at 58. The First Circuit explained that the judge’s wife’s representation of her clients “occurred over ten months before this criminal case was initiated (the original indictment was returned on April 8, 2004).” Id. (emphasis added). “Even though the word ‘proceeding’ is defined to include ‘pretrial, trial, appellate review, or other stages of litigation,’ 28 U.S.C. § 455(d)(1), [the district judge] was not clearly mistaken in confining his attention here ‘to the litigation encompassed by this indictment.’” Id. (emphasis added); see also United States v. Sarno, 41 F. App’x 603, 609 (4th Cir. 2002) (affirming denial of disqualification motion because, although the judge’s son had some involvement in the case early on, he “was never retained nor appeared as a lawyer of record in this case” (emphasis added)); Rural Tel. Fin. Coop. v. Prosser, No. Civ. 2004-132, 2005 WL 3077607, at *5 (D.V.I. Nov. 16, 2005) (denying disqualification motion where the judge’s spouse appeared on behalf of one of the parties in front of the Public Service Commission because “the September 10, 2004 PSC hearing was not a proceeding as defined in section 455(d)(1). . . . Although the examples in section 455(d)(1) do not appear to be exclusive, the list seems to only include stages of litigation. The September 10,
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2004, PSC hearing was not a part of the Virginia litigation, nor could it be. In fact,
any regulatory issue addressed at the PSC hearing remains separate and distinct from
the default and guarantee proceedings before this Court. The proceeding to which
section 455(d) refers to is the one before this Court (either the default or guarantee
action).” (emphasis added)).
Like section 455(d)(1), “the proceeding” in Canon 3(C)(1)(e) is the single
proceeding currently before the judge. If the judge participated in the same
proceeding or case in his or her prior job, disqualification is required. But if the
judge participated in a different case, even if it’s related, disqualification is not
required.3
Even if “the proceeding” could mean more than the case currently before the
judge, it would not include the Advisory Opinion to the Governor proceeding. That
3 To be sure, disqualification is required in federal habeas cases where, as state trial or appellate judges, a judge heard the underlying trial, direct appeal, or state post-conviction motion, although the basis for disqualification is not that they involve the same “proceeding.” A federal habeas appeal and the underlying state trial and appellate proceedings are more than simply “related.” Not only are the parties, the issues, and the record substantially the same, unlike the situation here. But even more significantly, a federal habeas court, in effect, reviews the state courts’ findings and conclusions on the same federal constitutional issues. Thus, where a federal habeas appeal would require one of us to review the correctness of our own previous decision in an underlying state court matter, disqualification is required under 28 U.S.C. § 455(a), even though the federal habeas appeal and the underlying state court matter are not the same “proceeding.” See, e.g., Rice v. McKenzie, 581 F.2d 1114 (4th Cir. 1978) (district court judge could not sit on federal habeas case to review state supreme court’s adjudication of the same claims rendered while he was a member of that state supreme court). In this case, we are not asked to determine the correctness of the Florida Supreme Court’s decision in the Advisory Opinion to the Governor proceeding, and therefore concerns like those that arise in a federal habeas case do not exist.
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proceeding and this case are not the same or even similar types of cases, and do not have the same or even similar issues.
Procedurally, Advisory Opinion to the Governor is a unique type of proceeding under Florida law, with no federal equivalent. The Florida Constitution allows the governor to “request in writing the opinion of the justices of the supreme court as to the interpretation of any portion of this constitution upon any question affecting the governor’s executive powers and duties.” Fla. Const. Art. IV, § 1(c). The request is an original proceeding. There is no trial or intermediate appeal. No facts are developed for the record—there is no record. The opinion of the state supreme court, as the name suggests, is advisory only.
This case, by contrast, is not an advisory proceeding. Federal courts don’t issue advisory opinions. See Golden v. Zwickler, 394 U.S. 103, 108 (1969) (“The federal courts established pursuant to Article III of the Constitution do not render advisory opinions.” (alteration adopted; internal quotation marks omitted)). This case began not with a member of the executive branch sending the court a letter asking for advice, but, as court cases traditionally do, with the plaintiffs suing the defendants. The plaintiffs and defendants exchanged discovery, had motion practice, and developed a record at trial; the district court held a trial, made findings of fact and conclusions of law that bind the class, and entered a judgment; and the
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losing parties appealed. None of that happened in the Advisory Opinion to the Governor proceeding—nor, as explained above, could it have.
This case has parties—not just interested persons, but parties. There are plaintiffs and defendants; appellants and appellees. The Advisory Opinion to the Governor proceeding had no parties—no plaintiffs, no defendants, no appellants, and no appellees. The Florida Constitution permits “interested persons to be heard on the questions presented” when the governor requests an advisory opinion. Fla. Const. Art. IV, § 1(c); Fla. R. App. P. 9.500(b)(2) (“[T]he court shall permit, subject to its rules of procedure, interested persons to be heard on the questions presented through briefs, oral argument, or both.”). And the Florida Supreme Court did hear from a wide range of “interested persons,” including the Florida Association of Criminal Defense Lawyers, the Florida House of Representatives, the Florida Senate, and one South Florida appellate attorney, Adam Richardson, who wanted to be heard on the question. Advisory Opinion to the Governor, 288 So. 3d at 1071. None of these “interested persons” are parties in this case. Not a single one. While the Florida Supreme Court’s advisory opinion is publicly available, it is addressed only to the governor, not to any of the “interested persons” who provided that court with input on the issue.
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Finally, the Advisory Opinion to the Governor proceeding and this case were filed in, and to be decided by, different judicial systems. Our system of federalism rests upon the guarantee that our federal and state governments retain their separate sovereign identities, and the state court systems are no more part of the federal court system than the state legislatures are part of Congress. The suggestion that the Advisory Opinion to the Governor proceeding and this case are the same “proceeding” misapprehends this basic premise of our national constitutional structure.4
In addition to the procedural distinctions between the two proceedings, the issues in the Advisory Opinion to the Governor proceeding were different from the issues in this case. The narrow—and only—issue in the Advisory Opinion to the Governor proceeding was “whether the phrase ‘all terms of sentence’ [in Amendment 4] encompasse[d] legal financial obligations (LFOs)—fines, restitution, costs, and fees—ordered by the sentencing court.” Id. at 1072. The governor, in his request for an advisory opinion, specifically said that he did “not ask [the] Court to address any issues regarding . . . the United States Constitution.” Id. at 1074. The Florida Supreme Court took the Governor at his word, noting that “[d]uring oral
4 Indeed, it is relatively common for separate, related cases to be pending simultaneously in the federal and state court systems, or to be pending simultaneously in different state court systems. Even though those cases often involve the same parties and issues, they are not the same “proceeding” for purposes of Canon 3(C).
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argument, counsel for the Governor made clear that the Governor requests advice
solely as to the narrow question of whether the phrase ‘all terms of sentence’
includes LFOs ordered by the sentencing court. We answer only that question.”
Id. at 1074–75 (emphasis added). That’s all that the proceeding involved and all
the Florida Supreme Court decided. Its advisory opinion said not one word about
any federal constitutional issue.5
In the present case, by contrast, the meaning of “completion of all terms of
sentence” is not an issue. Before the Governor requested an advisory opinion from
5 Appellees argue that the constitutional avoidance canon of statutory construction was involved before the Florida Supreme Court, and because it was, the Fourteenth and Twenty-Fourth Amendment issues in this case were considered in the Advisory Opinion to the Governor proceeding. The fundamental flaw in that argument is that canon applies only if there are “competing plausible interpretations of statutory text.” The threshold requirement is that the language being interpreted is ambiguous. See Iancu v. Brunetti, 139 S. Ct. 2294, 2301 (2019) (“This Court, of course, may interpret ambiguous statutory language to “avoid serious constitutional doubts. But that canon of construction applies only when ambiguity exists.” (citation and internal quotation marks omitted; emphasis added)); F.C.C. v. Fox Tel. Stations, Inc., 556 U.S. 502, 516 (2009) (“The so-called canon of constitutional avoidance is an interpretive tool, counseling that ambiguous statutory language be construed to avoid serious constitutional doubts.” (emphasis added)).
The Florida Supreme Court in its advisory opinion did not even mention the constitutional avoidance canon for the obvious reason, as its opinion makes clear, that it was not involved or applied. It was not involved or applied because the court unanimously found that the meaning of the phrase “all terms of sentence” was plain, it was clear, there was no ambiguity. See Advisory Opinion to the Governor, 288 So. 3d at 1081 (“We conclude that ‘all terms of sentence’ plainly encompasses not only durational terms but also obligations and therefore includes all LFOs imposed in conjunction with an adjudication of guilt. As explained next, we reject as overly technical the arguments advanced by certain Non-State Parties that Amendment 4 encompasses only some LFOs.” (emphasis added)).
Because it found there was no basis for doubt about what that language meant, and because the Governor’s request expressly excluded any question about any federal constitutional issue, the Florida Supreme Court did not consider or discuss, directly or indirectly, explicitly or implicitly, the federal constitutional issues involved in the present case. It had no occasion to do so.
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the Florida Supreme Court, Appellees themselves alleged in their complaint that Senate Bill 7066 defined the phrase “to include not only any term of imprisonment, probation, community control or supervision (collectively, ‘carceral supervision’), but also the full payment of any LFOs, including restitution, fines and fees ‘ordered by the court as part of the sentence or that are ordered by the court as a condition of any form of supervision,’ even if those obligations have been converted to civil liens.” (DE 84 at 16–17.) Thus, this case takes as a given that Florida requires full payment of LFOs before restoration of voting rights and, assuming that, asks whether this requirement violates the Fourteenth and Twenty-Fourth Amendments.
Section 455(a) and the Senate Judiciary Committee Questionnaires Appellees also contend that we’re disqualified under 28 U.S.C. section 455(a) because of our questioning during oral argument in the Advisory Opinion to the Governor proceeding and our written answers to questions from the Senate Judiciary Committee. Section 455(a) requires that a judge “disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). “[T]he standard for determining whether a judge should disqualify himself under [section] 455 is an objective one, whether a reasonable person knowing all the facts would conclude that the judge’s impartiality might reasonably be questioned.”
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United States v. Greenough, 782 F.2d 1556, 1558 (11th Cir. 1986); see also United States v. Scrushy, 721 F.3d 1288, 1303 (11th Cir. 2013) (motion to recuse under section 455(a) is “whether an objective, disinterested lay observer fully informed of the facts underlying the grounds on which recusal was sought would entertain a significant doubt about the judge’s impartiality”); United States v. Carlton, 534 F.3d 97, 100 (2d Cir. 2008) (“In determining whether Section 455(a) requires recusal, the appropriate standard is objective reasonableness—whether ‘an objective, disinterested observer fully informed of the underlying facts [would] entertain significant doubts that justice would be done absent recusal.’” (citations omitted)). Moreover, section 455(a)’s recusal requirement is “commonly limited to those circumstances in which the alleged partiality ‘stem[s] from an extrajudicial source.’” Carlton, 534 F.3d at 100 (quoting Liteky v. United States, 510 U.S. 540, 544 (1994)).
Carlton is instructive on the application of that objective standard. In that case, the defendant had been on a five-year term of supervised release resulting from a previous bank robbery conviction. The government sought revocation of supervised release, alleging that the defendant committed another bank robbery while on supervised release. The district court held a revocation hearing and, after concluding that the government had proved by a preponderance of the evidence that the defendant had committed the second robbery, revoked the defendant’s term of
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supervised release and imposed a 30-month term of imprisonment for the previous bank robbery conviction. Later, the defendant was indicted on three counts relating to the second bank robbery, and the case was assigned to the same district court judge who had held the revocation hearing and determined that the defendant had committed the second bank robbery. The defendant moved to recuse under section 455(a), and the district court denied that motion. The case proceeded to trial and then appeal, including appeal of the denial of the recusal motion. The Second Circuit concluded that section 455(a) did not require recusal, holding that “[h]aving heard evidence and made a determination of defendant’s guilt in a revocation hearing, a judge may properly preside over the subsequent criminal trial for the same offense.” Id.
The Second Circuit in Carlton relied on Liteky in reaching its conclusion. In Liteky, the Supreme Court did not adopt a bright line rule that section 455(a) only applied to extrajudicial conduct, but stated that “it would be better to speak of the existence of a significant (and often determinative) ‘extrajudicial source’ factor, than of an ‘extrajudicial source’ doctrine, in recusal jurisprudence.” 510 U.S. at 554–55. The Supreme Court then described judicial conduct that would not require recusal under section 455(a). “First, judicial rulings alone almost never constitute a valid basis for a bias or partiality motion. In and of themselves (i.e., apart from
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surrounding comments or accompanying opinion), they cannot possibly show reliance upon an extrajudicial source, and can only in the rarest circumstances evidence the degree of favoritism or antagonism required . . . when no extrajudicial source is involved.” Id. at 555. The Supreme Court continued: “Second, opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. Thus, judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge.” Id.
The Supreme Court then turned to Berger v. United States, 255 U.S. 22 (1921) as an example of judicial remarks that would constitute “high degree of favoritism or antagonism that would make fair judgment impossible.” Berger involved a World War I espionage case against German-American defendants. During the trial, the district court allegedly said: “‘One must have a very judicial mind, indeed, not [to be] prejudiced against the German Americans’ because their ‘hearts are reeking with disloyalty.’” Liteky, 510 U.S. at 555 (quoting Berger, 255 U.S. at 28). Thus, to the extent that Appellees argue that our questions at oral argument in Advisory
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Opinion to the Governor in and of themselves form a basis for disqualification under
section 455(a), having reviewed the questions cited in Appellees’ brief and using the
objective standard required by section 455(a), those questions fail to meet the
standard for recusal.
Turning to the substance of our written statements to the Senate Judiciary
Committee, in our written answers to the Committee, we explained how we would
resolve potential disqualification issues. Judge Luck wrote:
The impartiality of judges, and the appearance of impartiality, are important for ensuring public confidence in our federal courts. If confirmed, I would carefully evaluate every case to determine whether recusal is warranted. In making these determinations, I will consult 28 U.S.C. § 455 and the Code of Conduct for United States Judges, as well as other applicable rules or guidance. I will also, as necessary and appropriate, consult with colleagues and ethics officials within the court system. I anticipate that there will be matters from which I will need to recuse myself, most notably cases on which I served as a lawyer, or as a trial or appellate judge. In every case, I will carefully consider whether recusal is necessary.
Similarly, Judge Lagoa wrote:
The impartiality of judges, and the appearance of impartiality, are key to ensuring public confidence in our courts. A judge must recuse herself where her impartiality “might reasonably be questioned.” 28 U.S.C. § 455(a); Canon 3(C)(1), Code of Judicial Conduct for United States Judges. If confirmed, I would conscientiously review and follow the standards for judicial recusal set forth in 28 U.S.C. § 455(a) and the Code of Conduct for United States Judges, as well as any other applicable rules or guidance. As necessary and appropriate, I would also consult with colleagues and ethics officials within the federal court system.
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In terms of specific examples of the types of cases I would recuse from if confirmed, I would recuse from cases in which my husband or his law firm appeared, as well as cases involving either the Supreme Court of Florida or the Florida Third District Court of Appeals while I was a member of either court. In addition, and as described in my responses to the Committee’s Questionnaire, I currently conduct a review of each case assigned to me and apply the standards for judicial recusal under the Florida standard to determine whether I should recuse myself from a particular case. During my over 13 years on the bench, I have occasionally recused myself from cases based on that case-by-case review, for example where I knew a party or witness involved. If confirmed to the Eleventh Circuit, I would continue to conduct a review of each case assigned to me and apply the standards for judicial recusal in determining whether to recuse myself.
This is exactly what we have done. We’ve reviewed the Code of Conduct for
United States Judges and 28 U.S.C. section 455. We have also consulted with
experienced colleagues. We have carefully considered whether disqualification is
legally required, and because we did not serve as lawyers or trial or appellate judges
in this case, we’ve concluded that it is not.
Appellees point out that Judge Luck also wrote that “[i]f confirmed, I will
recuse myself from any case where I ever played any role.” Similarly, they point
out that Judge Lagoa wrote that “I would recuse myself from any case in which I
participated as a justice on the Supreme Court of Florida” and that if confirmed, “I
would recuse from cases . . . involving either the Supreme Court of Florida or the
Florida Third District Court of Appeals while I was a member of either Court.” In
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keeping with our pledge to the Committee, we have recused in those types of cases
and we will continue to do so.6
Our statements to the Committee expressly use the word “case” to refer to a
case pending before this Court. Appellees argue that, because as Justices on the
Florida Supreme Court we heard oral argument in the Advisory Opinion to the
Governor proceeding, we “played a role” or “participated” in this case. Thus,
according to Appellees, if we do not recuse ourselves from this case we are not
honoring our pledges and our impartiality might reasonably be questioned under
section 455(a). Appellees’ reading, however, suffers from the same mistaken
6 For example, both Judge Luck and Judge Lagoa disqualified themselves from Calhoun v. Sec’y, Dep’t of Corrs., Case No. 19-12331 and Dailey v. Sec’y, Dep’t of Corrs., Case No. 1915147, two federal habeas appeals. Additionally, Judge Luck has disqualified himself in Wilson v. Sec’y, Fla. Dep’t of Corrs., Case No. 20-11089, and Judge Lagoa has disqualified herself in Rodriguez v. Att’y Gen., et. al, Case No. 18-12699, Sanchez v. Sec’y, Dep’t of Corrs., Case No. 19-12086, and Robinson v. Florida, Case No. 20-10982, all of which are other federal habeas appeals. While these federal habeas appeals were not the same “proceedings” as the respective underlying state court cases, they required this Court to review the federal constitutional issues decided by the state trial and appellate courts, including the appellate court decision in which Judge Luck and Judge Lagoa served as a member of the panel and rendered a decision. This Court, in effect, would be reviewing the correctness of the decision of those state courts. In this case, by contrast, this Court will not be deciding the correctness of anything that the Florida Supreme Court decided or expressed a view about in Advisory Opinion to the Governor, because it only addressed and decided state law issues and federal courts are required to accept as state law anything that a state supreme court decides is state law. See Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (“[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.” (alteration in original)); Waddington v. Sarausad, 555 U.S. 179, 192 (2009) (“[W]e have repeatedly held that it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.” (internal quotation marks omitted)).
Finally, as pledged to the Committee, Judge Lagoa has recused herself from cases where her husband’s law firm appeared as counsel. See, e.g., Schuh v. American Express Bank, et al., Case No. 18-12753.
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premise that we’ve already discussed in connection with Canon 3(C). That is, Appellees’ argument assumes that the Advisory Opinion to the Governor proceeding is the same proceeding or case as this case and that as a result we previously played a role, were involved, or participated in this case. We didn’t.
As we’ve already explained, this case and the Advisory Opinion to the Governor proceeding are not the same case. We did play a role, we were involved in, and we did participate in the Advisory Opinion to the Governor proceeding. We sat during oral argument and we asked questions to the lawyers appearing before that court. But Advisory Opinion to the Governor was a separate proceeding involving different persons, different issues, and different courts. Moreover, this case does not ask this Court to sit in review of or otherwise opine on the correctness of Advisory Opinion to the Governor—or any other decision by the Florida Supreme Court for that matter. We were never judges, lawyers, or litigants in this case, and did not have anything to do with this case, until after we became judges on this Court and Appellants filed their motion for rehearing en banc in the first appeal (the appeal from the preliminary injunction).
Appellees have not pointed to either judicial or extrajudicial statements that meet the legal standard requiring recusal under section 455(a). An objective, disinterested lay person, knowing that we asked questions in a different proceeding
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(advisory vs. case-and-controversy), in a different court (Florida Supreme Court vs.
federal court), with different issues (interpreting the state constitution vs. federal
constitutional questions), and with different participants (“interested persons” vs.
parties), would not reasonably entertain a significant doubt about our impartiality in
this case.7
Conclusion
“There are twin, and sometimes competing, policies that bear” on the
disqualification decision. Greenough, 782 F.2d at 1558.
7 Of note, Eleventh Circuit Rule 26.1-1 requires parties to file a Certificate of Interested Persons and Corporate Disclosure Statement at the outset of a case. The purpose of this filing is to alert judges to possible recusal issues. See, e.g., United States v. Dilullo, No. 2:07CV-0321KJD-PAL, 2007 WL 3124544, at *2 (D. Nev. Oct. 23, 2007) (stating that the certificate “is necessary to enable the judges who have been assigned to this case to evaluate possible recusal”). To that end, Rule 26.1-2(a) requires the party to list all “persons . . . who have an interest in the outcome of the particular case or appeal” in their Certificate. The Certificate is filed by appellants and appellees early in the life of an appeal, Rule 26.1-1(a), and well before any party knows which member of this Court will be assigned to the panel or sitting en banc in their case.
This case has come before this Court twice, once after the district court granted the preliminary injunction and now after the trial. Each time en banc consideration by this Court has been requested. To the extent Appellees believed that we already had played a role in this case, each Certificate of Interested Persons was their opportunity to alert us of their belief. Indeed, it is common practice for attorneys in federal habeas appeals to list all of the state trial and appellate judges involved in the underlying state court trial and post-conviction proceedings. For example, the Certificates of Interested Persons filed in the federal habeas appeals discussed in footnote 6 did just that—they listed all of the state trial and appellate judges in the underlying state court proceedings, including Judge Luck and Judge Lagoa, who sat as members of the appellate panels that rendered decisions in the underlying state court actions. Significantly, Appellees did not list us—or any of the Florida Supreme Court Justices who participated in the Advisory Opinion to the Governor proceeding—on any of their Certificates. While the Certificate is not itself dispositive, as judges retain their own responsibility to review cases for potential disqualification issues, it confirms our conclusion that an objective, disinterested person knowing all of the facts and circumstances would not reasonably question our impartiality in this case.
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The first is that courts must not only be, but must seem to be, free of bias or prejudice. . . . A second policy is that a judge, having been assigned to a case, should not recuse himself on unsupported, irrational, or highly tenuous speculation. If this occurred the price of maintaining the purity of the appearance of justice would be the power of litigants or third parties to exercise a veto over the assignment of judges.
Because there exists this second policy, our inquiry cannot stop with the questions: have a number of people thought or said that a judge should not preside over a given case? has the judge’s failure to recuse himself been a subject of unfavorable comment in the media? or, would the judge have avoided controversy and the need for appellate review had he stepped aside?
Id. (quoting In re United States, 666 F.2d 690, 694 (1st Cir. 1981)). Or, as our Court
has explained, “there is as much obligation for a judge not to recuse when there is
no occasion for him to do so as there is for him to do so when there is.” In re Moody,
755 F.3d 891, 895 (11th Cir. 2014) (internal quotation marks omitted). Having
reviewed Appellees’ motion, the Code of Conduct for United States Judges, section
455, the case law interpreting these provisions, Appellants’ response, and Appellees’
reply, we conclude that there is no occasion for us to recuse and we deny the
disqualification motion.8
8 Appellants argue that the motion to recuse should be denied on untimeliness grounds because Appellees delayed in filing it. Although there is no explicit timeliness requirement in section 455, the general rule is that if a party knows of circumstances that could lead a reasonable person to question the judge’s impartiality, but does not make a motion for disqualification within a reasonable time after discovering these facts, that party may forfeit any available relief under section 455.
There is substantial authority supporting the Appellants’ position that the motion could be 24

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denied because it was not promptly filed. See, e.g., Summers v. Singletary, 119 F.3d 917, 921 (11th Cir. 1997); Phillips v. Amoco Oil Co., 799 F.2d 1464, 1472 (11th Cir. 1986) (“Counsel, knowing the facts claimed to support a [section] 455(a) recusal for appearance of partiality may not lie in wait . . . .”); United States v. Sykes, 7 F.3d 1331, 1339 (7th Cir. 1993) (denying a section 144 motion to recuse, in part, because filing the motion “[t]wo months after the allegedly prejudicial statement is certainly not ‘at the earliest possible moment’ after discovery of the prejudice”); see also Richard E. Flamm, Recusal and Disqualification of Judges: For Cause Motions, Peremptory Challenges and Appeals 189 (2018) (“Title 28 U.S.C. § 455 has often been interpreted in such a way as to require that a motion to disqualify a judge must be made in a timely fashion.”); id. at 192 (“Most of the courts that have had an opportunity to consider the matter have ruled that a [section] 144 challenge [seeking recusal] that is not made in a timely fashion is subject to being rejected on that basis”); id. at 191 (“Courts have often refused to entertain objections [to a judge sitting] that have been lodged in an insufficiently prompt manner. Judges have been particularly reluctant to entertain [section] 144 motions that are not filed until after a substantive motion in the case has been made.”).
Here, the motion was not filed until July 15, 2020, which was 140 days after the petition for rehearing en banc was filed on February 26, 2020 in the appeal from the grant of the preliminary injunction, and 34 days after the petition for hearing en banc was filed in this case seeking review of the grant of the permanent injunction. See Pet. Reh’g En Banc, Jones v. Governor of Fla., 950 F.3d 795 (11th Cir. 2020) (No. 19-14551); Pet. Initial Hr’g En Banc, Jones v. Governor of Fla., No. 20-12003 (11th Cir. June 11, 2020).
Nonetheless, it is not necessary to decide whether the motion to disqualify should be denied as untimely because it is denied for the reasons we have already explained.
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David J. Smith Clerk of Court

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
ELBERT PARR TUTTLE COURT OF APPEALS BUILDING 56 Forsyth Street, N.W. Atlanta, Georgia 30303
September 11, 2020

MEMORANDUM TO COUNSEL OR PARTIES
Appeal Number: 20-12003-AA Case Style: Kelvin Jones, et al v. Governor of Florida, et al District Court Docket No: 4:19-cv-00300-RH-MJF Secondary Case Number: 4:19-cv-00304-RH-MAF

For rules and forms visit www.ca11.uscourts.gov

Enclosed is a copy of the court's decision filed today in this appeal. Judgment has this day been entered pursuant to Rule 36 of the Federal Rules of Appellate Procedure.
Sincerely,
DAVID J. SMITH, Clerk of Court
Reply to: Jeff R. Patch Phone #: 404-335-6151

OPIN-5 Issuance of En Banc Opinion

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[PUBLISH] IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 20-12003 ________________________
D.C. Docket Nos. 4:19-cv-00300-RH-MJF; 4:19-cv-00304-RH-MAF

KELVIN LEON JONES, ROSEMARY MCCOY, et al.,

versus

Plaintiffs-Appellees,

GOVERNOR OF FLORIDA, FLORIDA SECRETARY OF STATE,

Defendants-Appellants. ________________________

Appeals from the United States District Court for the Northern District of Florida _______________________
(September 11, 2020)
Before WILLIAM PRYOR, Chief Judge, WILSON, MARTIN, JORDAN, JILL PRYOR, NEWSOM, BRANCH, GRANT, LUCK, and LAGOA, Circuit Judges.

WILLIAM PRYOR, Chief Judge, delivered the opinion of the Court, in which NEWSOM, BRANCH, GRANT, LUCK, and LAGOA, Circuit Judges, joined, except with respect to Part III–B–2, in which only NEWSOM and LAGOA, Circuit Judges, joined.

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WILLIAM PRYOR, Chief Judge: Florida has long followed the common practice of excluding those who
commit serious crimes from voting. But in 2018, the people of Florida approved a historic amendment to their state constitution to restore the voting rights of thousands of convicted felons. They imposed only one condition: before regaining the right to vote, felons must complete all the terms of their criminal sentences, including imprisonment, probation, and payment of any fines, fees, costs, and restitution. We must decide whether the financial terms of that condition violate the Constitution.
Several felons sued to challenge the requirement that they pay their fines, fees, costs, and restitution before regaining the right to vote. They complained that this requirement violates the Equal Protection Clause of the Fourteenth Amendment as applied to felons who cannot afford to pay the required amounts and that it imposes a tax on voting in violation of the Twenty-Fourth Amendment; that the laws governing felon reenfranchisement and voter fraud are void for vagueness; and that Florida has denied them procedural due process by adopting requirements that make it difficult for them to determine whether they are eligible to vote. The district court entered a permanent injunction that allows any felon who is unable to pay his fines or restitution or who has failed for any reason to pay his court fees and costs to register and vote. Because the felons failed to prove a
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violation of the Constitution, we reverse the judgment of the district court and vacate the challenged portions of its injunction.
I. BACKGROUND Like many other States, Florida has long prohibited convicted felons from voting. The first Constitution of Florida gave the legislature the power “to exclude . . . from the right of suffrage, all persons convicted of bribery, perjury, or other infamous crime.” Fla. Const. art. VI, § 4 (1838). The legislature exercised this power to disenfranchise those convicted of an “infamous crime” shortly after the Union admitted Florida in 1845. 1845 Fla. Laws 78. And until late 2018, the Constitution of Florida provided without qualification that “[n]o person convicted of a felony . . . shall be qualified to vote or hold office until restoration of civil rights.” Fla. Const. art. VI, § 4(a) (2018). In 2018, the people of Florida amended their constitution to restore the voting rights of some felons. Amendment 4 began as a voter initiative that appeared on the general election ballot in November 2018. The amendment provides that “any disqualification from voting arising from a felony conviction shall terminate and voting rights shall be restored upon completion of all terms of sentence including parole or probation.” Fla. Const. art. VI, § 4(a). It does not apply to felons convicted of murder or a felony sexual offense. Id. § 4(a)–(b). The
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amendment passed with about 65 percent of the vote, just over the required 60percent threshold. See id. art. XI, § 5(e).
Shortly after Amendment 4 took effect, the Florida Legislature enacted a statute, Senate Bill 7066, to implement the amendment. This statute defined the phrase “[c]ompletion of all terms of sentence” in Amendment 4 to mean any portion of a sentence contained in the sentencing document, including imprisonment, probation, restitution, fines, fees, and costs. Fla. Stat. § 98.0751(2)(a). The Supreme Court of Florida later agreed with that interpretation and ruled that the phrase “all terms of sentence” includes all financial obligations imposed as part of a criminal sentence. Advisory Opinion to the Governor re: Implementation of Amendment 4, 288 So. 3d 1070, 1084 (Fla. 2020).
To vote in Florida, a person must submit a registration form. The form requires registrants to affirm that they are not a convicted felon or that, if they are, their right to vote has been restored. Florida does not require felons to prove that they have completed their sentences during the registration process. The State allows felons to request an advisory opinion on eligibility before registration, and any felon who registers in reliance on an opinion is immune from prosecution. If the registration form is complete and the Division of Elections determines that the registrant is a real person, it adds the person to the voter registration system. If the State later obtains “credible and reliable” information establishing that the person
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has a felony conviction and has not completed all the terms of his sentence, the person is subject to removal from the voter rolls. See Fla. Stat. § 98.075(5). But any such felon is considered a registered voter, and before removal from the voter registration system, he is entitled to notice—including “a copy of any documentation upon which [his] potential ineligibility is based”—and a hearing, as well as de novo judicial review of an adverse eligibility determination. Id. §§ 98.075(7), 98.0755.
At the time of trial, Florida had received 85,000 registrations from felons who believe they were reenfranchised by Amendment 4. State law requires that those registrations be screened for, among other things, the voters’ failure to complete the terms of their sentences including financial obligations. Id. § 98.0751. Florida has yet to complete its screening of any of the registrations. Until it does, it will not have credible and reliable information supporting anyone’s removal from the voter rolls, and all 85,000 felons will be entitled to vote. See id. §§ 98.075(5) and (7).
Several felons sued Florida officials to challenge the requirement that they pay their fines, fees, costs, and restitution before regaining the right to vote. Among other provisions, they alleged that the reenfranchisement laws violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment and the Twenty-Fourth Amendment.
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The district court entered a preliminary injunction in favor of the felons because it concluded they were likely to succeed on their claim under the Equal Protection Clause. It ruled that requiring felons to complete all financial terms of their sentences before regaining the right to vote was unconstitutional wealth discrimination as applied to felons unable to pay the required amounts. The preliminary injunction ordered the officials not to prevent the plaintiff felons from registering or voting based solely on their inability to pay any outstanding financial obligations in their sentences.
A panel of this Court affirmed the preliminary injunction on interlocutory appeal. Jones v. Governor of Fla., 950 F.3d 795, 800 (11th Cir. 2020). The panel held that the decision to condition reenfranchisement on the completion of “all terms of sentence” violated the Equal Protection Clause as applied to indigent felons who cannot afford to pay their fines, fees, costs, and restitution. Id. It reached this conclusion by applying heightened scrutiny on the ground that Amendment 4 and Senate Bill 7066 discriminate on the basis of wealth. Id. at 817. It also suggested in dicta that the laws may fail even rational basis review. Id. at 809, 817.
The district court certified a class and a subclass of felons for purposes of final injunctive and declaratory relief. See Fed. R. Civ. P. 23(b)(2). The class comprises “all persons who would be eligible to vote in Florida but for unpaid
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financial obligations.” The subclass comprises “all persons who would be eligible to vote in Florida but for unpaid financial obligations that the person asserts the person is genuinely unable to pay.”
Before trial, the State adopted what the district court called the “every-dollar method” for determining when felons complete their financial terms of sentence. Under this policy, the State credits all payments a felon makes for any obligations related to his sentence toward the original obligations imposed in the sentence. For example, if a felon establishes a payment plan to complete his terms of sentence, any payments the felon makes for setting up or administering the plan also count toward the original financial obligations imposed in the sentence. After a felon has paid an amount equal to that imposed in his sentence, the State considers the felon’s financial terms of sentence complete for purposes of reenfranchisement.
After a trial on the merits, the district court ruled that Amendment 4 and Senate Bill 7066 violate the Equal Protection Clause as applied to felons who cannot afford to complete their sentences. It applied heightened scrutiny to reach that conclusion based on the panel decision in the earlier appeal, and it alternatively ruled that the laws failed even rational basis review as applied to felons who are unable to pay the required amounts. The district court also ruled that Amendment 4 and Senate Bill 7066 impose a “tax” on voting by requiring
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felons to pay court fees and costs imposed in their sentences in violation of the Twenty-Fourth Amendment.
The district court did not decide whether Florida’s reenfranchisement laws violate the Due Process Clause. It stated that there was “considerable force” to the arguments that the relevant laws are void for vagueness and deny the felons procedural due process. It found that felons are sometimes unable to determine the amount of financial obligations imposed in their sentences or the total amount they have paid toward all related obligations. The amount of financial obligations imposed in a sentence is usually clear from the judgment, which can be obtained from the county of conviction. But many felons no longer have copies of their judgments, and some counties may lack records for older convictions. When judgments contain both misdemeanor and felony offenses, it may not be immediately clear whether all financial obligations were imposed only for a disqualifying felony offense. The district court did not decide whether these facts established a violation of the Due Process Clause, but it stated that its remedy for the other constitutional violations would eliminate any due process concerns.
The district court awarded declaratory and injunctive relief. It declared Amendment 4 and Senate Bill 7066 unconstitutional insofar as they prohibit otherwise-eligible felons who are “genuinely unable to pay” their financial obligations from voting, require felons to pay “amounts that are unknown and
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cannot be determined with diligence” to regain their voting rights, and require any felons “to pay fees and costs as a condition of voting.” It enjoined any defendant from taking steps to enforce those requirements. But it did not enjoin the requirement that felons pay “a determinable amount of fines and restitution as a condition of voting” if they can afford to do so.
The district court also imposed new procedures to govern the registration and voting process for felons. Its injunction required the Secretary of State to publish a form to request an advisory opinion from the Division of Elections regarding the existence and amount of any outstanding fines or restitution that could render a felon ineligible to vote. The form allowed requesters to check a box that stated, “I believe I am unable to pay the required amount.” If the Division failed to respond to a request within 21 days and if the requester checked the box, the injunction required that the requester be allowed to vote.
The Governor and the Secretary of State appealed. They petitioned this Court for initial hearing en banc and moved to stay most aspects of the permanent injunction pending appeal. We granted both requests.
II. STANDARDS OF REVIEW We review the decision to enter a permanent injunction for an abuse of discretion, but we review the underlying legal conclusions de novo and any factual
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findings for clear error. See Common Cause/Ga. v. Billups, 554 F.3d 1340, 1349 (11th Cir. 2009).
III. DISCUSSION We divide our discussion in three parts. We first explain that Amendment 4 and Senate Bill 7066 do not violate the Equal Protection Clause. Next, we explain why the laws do not impose a tax on voting in violation of the Twenty-Fourth Amendment. Finally, we reject the arguments that the challenged laws are void for vagueness and that Florida has denied the felons due process. A. Amendment 4 and Senate Bill 7066 Do Not Violate the Equal Protection
Clause. The practice of disenfranchising persons who commit serious crimes has a long history that predates the founding of the Republic. George Brooks, Comment, Felon Disenfranchisement: Law, History, Policy, and Politics, 32 Fordham Urb. L.J. 851, 852–53 (2005). As Judge Friendly explained, early American States may have based the practice on the Lockean understanding that those who break the social contract by committing a crime “have abandoned the right to participate in further administering the compact.” Green v. Bd. of Elections, 380 F.2d 445, 451 (2d Cir. 1967). And as a practical matter, “it can scarcely be deemed unreasonable for a state to decide that perpetrators of serious crimes shall not take part in electing the legislators who make the laws, the executives who enforce these, the
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prosecutors who must try them for further violations, or the judges who are to consider their cases.” Id.
When the States ratified the Fourteenth Amendment in 1868, 29 of their constitutions permitted or required felon disenfranchisement. Richardson v. Ramirez, 418 U.S. 24, 48 & n.14 (1974). Section 2 of the Fourteenth Amendment expressly allows States to disenfranchise criminals without having their representation reduced in Congress. U.S. Const. amend. XIV, § 2. Today, almost all States disenfranchise felons in some way, although the recent trend is toward expanding access to the franchise. Jones, 950 F.3d at 801 & nn.1–3.
Based on the express provision for felon disenfranchisement in section 2 of the Fourteenth Amendment, the Supreme Court held in Richardson v. Ramirez that the Equal Protection Clause in section 1 of the same amendment does not forbid the practice. 418 U.S. at 54–56. The Court held that the Equal Protection Clause permits States to disenfranchise all felons for life, even after they have completed their sentences. Id. at 56. Florida largely followed this practice before the adoption of Amendment 4. It presumptively disenfranchised felons for life upon conviction, subject only to discretionary restoration of voting rights by executive clemency. Jones, 950 F.3d at 802.
This appeal requires us to consider what limits the Equal Protection Clause places on the selective restoration of felons’ voting rights. By conditioning
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reenfranchisement on the completion of all terms of sentence, Florida has decided to restore some felons to the franchise but not others. The felons challenge the classification Florida has drawn between felons who have completed all their terms of sentence, including financial terms, and those who have not. They argue that this classification violates the Equal Protection Clause as applied to felons who have completed all other terms of sentence but cannot afford to pay their fines, fees, costs, and restitution.
Under the Equal Protection Clause, classifications that neither implicate fundamental rights nor proceed along suspect lines are subject to rational basis review. See, e.g., Heller v. Doe ex rel. Doe, 509 U.S. 312, 319–20 (1993). Whatever may be true of the right to vote generally, felons “cannot complain about their loss of a fundamental right to vote because felon disenfranchisement is explicitly permitted under the terms of Richardson.” Harvey v. Brewer, 605 F.3d 1067, 1079 (9th Cir. 2010) (O’Connor, J.); accord Johnson v. Bredesen, 624 F.3d 742, 746 (6th Cir. 2010); Hayden v. Paterson, 594 F.3d 150, 170 (2d Cir. 2010); Owens v. Barnes, 711 F.2d 25, 27 (3d Cir. 1983). If the right of felons to vote were fundamental, every law that distinguished between different groups of felons in granting or denying access to the franchise would be subject to “exacting judicial scrutiny.” Kramer v. Union Free Sch. Dist. No. 15, 395 U.S. 621, 628 (1969). But the Constitution does not put States to an all-or-nothing choice when it comes to
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deciding whether felons may vote. As our predecessor Court held decades ago, the Constitution “grants to the states a realm of discretion in the disenfranchisement and reenfranchisement of felons which the states do not possess with respect to limiting the franchise of other citizens.” Shepherd v. Trevino, 575 F.2d 1110, 1114 (5th Cir. 1978).
States may restrict voting by felons in ways that would be impermissible for other citizens. For example, no one doubts that a State could not require citizens never convicted of a crime to serve a term of confinement or supervision to access the franchise. Such a requirement would have “no relation to voting qualifications” and so would be invalid under the Equal Protection Clause. Harper v. Va. Bd. of Elections, 383 U.S. 663, 670 (1966). But States may unquestionably require felons to complete their terms of imprisonment and parole before regaining the right to vote. See Richardson, 418 U.S. at 55–56; Hayden, 594 F.3d at 171. The reason for this difference is clear: requiring felons to complete their sentences is directly related to voting qualifications because imprisonment and parole are imposed as punishment for the crimes by which felons forfeited their right to vote.
Although States enjoy significant discretion in distributing the franchise to felons, it is not unfettered. A State may not rely on suspect classifications in this area any more than in other areas of legislation. But absent a suspect classification that independently warrants heightened scrutiny, laws that govern felon
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disenfranchisement and reenfranchisement are subject to rational basis review. Shepherd, 575 F.2d at 1114–15. Every other Circuit to consider the question has reached the same conclusion. See Johnson, 624 F.3d at 746; Harvey, 605 F.3d at 1079; Hayden, 594 F.3d at 170; Owens, 711 F.2d at 27. Were the rule otherwise, the “realm of discretion” States enjoy in this area would prove illusory. Shepherd, 575 F.2d at 1114.
The only classification at issue is between felons who have completed all terms of their sentences, including financial terms, and those who have not. This classification does not turn on membership in a suspect class: the requirement that felons complete their sentences applies regardless of race, religion, or national origin. Because this classification is not suspect, we review it for a rational basis only.
In the earlier appeal from the preliminary injunction, the panel elided this analysis and applied “some form of heightened scrutiny” on the ground that Amendment 4 and Senate Bill 7066 invidiously discriminate based on wealth. Jones, 950 F.3d at 817. That decision was wrong. To reiterate, Florida withholds the franchise from any felon, regardless of wealth, who has failed to complete any term of his criminal sentence—financial or otherwise. It does not single out the failure to complete financial terms for special treatment. And in any event, wealth is not a suspect classification. See, e.g., Maher v. Roe, 432 U.S. 464, 470–71
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(1977). Outside of narrow circumstances, laws that burden the indigent are subject only to rational basis review. See M.L.B. v. S.L.J., 519 U.S. 102, 123–24 (1996).
To justify its application of heightened scrutiny, the panel relied on Supreme Court precedents governing poll taxes, Harper, 383 U.S. 663; poverty-based imprisonment, e.g., Bearden v. Georgia, 461 U.S. 660 (1983); and access to judicial proceedings, e.g., Griffin v. Illinois, 351 U.S. 12 (1956). The felons ask us to affirm the permanent injunction based on these same decisions. But none of these precedents, alone or in combination, requires heightened scrutiny for the decision to condition reenfranchisement on the full completion of a criminal sentence.
Consider first Harper, which invalidated a $1.50 poll tax under the Equal Protection Clause. This poll tax applied to the Virginia electorate generally; any voter who wished to cast a ballot in a state election had to pay the tax. Harper, 383 U.S. at 664 n.1. Although States have the power to set voter qualifications, the Court explained that the Equal Protection Clause “restrains the States from fixing voter qualifications which invidiously discriminate.” Id. at 666. Because poll taxes bear “no relation” to voter qualifications, the Court concluded that Virginia had “introduce[d] a capricious or irrelevant factor” by requiring voters to pay the tax. Id. at 666, 668. Under Harper, it is a per se violation of the Equal Protection
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Clause for a State to “make[] the affluence of the voter or payment of any fee an electoral standard.” Id. at 666.
Amendment 4 and Senate Bill 7066 are markedly different from the poll tax in Harper. They do not make affluence or the payment of a fee an “electoral standard.” Id. They instead impose a different electoral standard: to regain the right to vote, felons, rich and poor, must complete all terms of their criminal sentences. Unlike the poll tax in Harper, that requirement is highly relevant to voter qualifications. See Richardson, 418 U.S. at 55; Hayden, 594 F.3d at 171. It promotes full rehabilitation of returning citizens and ensures full satisfaction of the punishment imposed for the crimes by which felons forfeited the right to vote. That criminal sentences often include financial obligations does not make this requirement a “capricious or irrelevant factor.” Harper, 383 U.S. at 668. Monetary provisions of a sentence are no less a part of the penalty that society imposes for a crime than terms of imprisonment. Indeed, some felons face substantial monetary penalties but little or no prison time.
Because the financial obligations at issue are directly related to legitimate voter qualifications, Harper is inapplicable. The en banc Ninth Circuit rejected a similar request to apply Harper to valid voter qualifications that impose a financial burden on some voters. It held that “[r]equiring voters to provide documents proving their identity is not an invidious classification based on impermissible
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standards of wealth or affluence, even if some individuals have to pay to obtain the documents.” Gonzalez v. Arizona, 677 F.3d 383, 409 (9th Cir. 2012) (en banc) (emphasis added), aff’d sub nom. Arizona v. Inter Tribal Council of Az., Inc., 570 U.S. 1 (2013). Like requiring voters to prove their identity, requiring felons to complete their full criminal sentences “falls squarely within the state’s power to fix core voter qualifications.” Id. The felons’ contrary reading of Harper would call into question any law that made voting more expensive for some people than others, even if the additional cost were directly tied to valid voter qualifications.
Harper also proves too much to help the felons, which is further evidence that it does not apply. Harper held that the Virginia poll tax was unconstitutional regardless of whether a voter could pay the tax; it did not matter whether a voter “ha[d] $1.50 in his pocket or nothing at all, pa[id] the fee or fail[ed] to pay it.” 383 U.S. at 668. But no one doubts that the Equal Protection Clause allows Florida to require felons who are able to complete the financial terms of their sentences to do so. If completing the financial terms of a sentence were truly “irrelevant” to voter qualifications, id., Florida could not require any felons to satisfy that requirement as a condition of voting. The watered-down version of Harper that the felons would have us apply ignores the crucial distinction between poll taxes and Florida’s reenfranchisement law: poll taxes are never relevant to voter qualifications, but laws that require the completion of a criminal sentence are. See
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Richardson, 418 U.S. at 55. The per se rule of Harper does not apply to voting requirements that are related to legitimate voter qualifications, even if some voters must pay to comply with the requirement. See Gonzalez, 677 F.3d at 409; Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 189 (2008) (plurality opinion) (explaining that Harper invalidates voting restrictions that “are unrelated to voter qualifications”); cf. Cipriano v. City of Houma, 395 U.S. 701, 702–04 (1969) (asking whether a law that gave only property taxpayers the right to vote in certain elections was necessary to serve a compelling state interest but not applying the per se rule of Harper).
In addition to Harper, the panel in the earlier appeal relied on two other lines of Supreme Court precedent to apply heightened scrutiny. Jones, 950 F.3d at 817– 19. These decisions represent limited exceptions to the general rule that rational basis review applies to claims of wealth discrimination. See M.L.B., 519 U.S. at 123–24. They do not apply here.
The first line of precedent, which culminated in the Bearden decision, applies when the State imprisons a person by reason of his inability to pay a fine. Bearden, 461 U.S. at 667–69; see also Tate v. Short, 401 U.S. 395, 396–98 (1971); Williams v. Illinois, 399 U.S. 235, 240–41 (1970). Williams, Tate, and Bearden all involved criminal defendants whose sentences included fines or restitution. Bearden, 461 U.S. at 662–63, 667. In each decision, the defendant was unable to
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pay the required amount solely because of poverty, which led the State to impose an additional term of imprisonment on the defendant that was not part of his original sentence. Id. The Court explained in Bearden that “if the State determines a fine or restitution to be the appropriate and adequate penalty for the crime, it may not thereafter imprison a person solely because he lacked the resources to pay it.” Id. at 667–68. But because Amendment 4 and Senate Bill 7066 do not impose an additional term of imprisonment on felons who fail to pay their financial obligations, they are far afield of the laws that Bearden and its predecessors considered.
The earlier panel erroneously read these decisions to stand for the proposition that “a state may not extend punishment”—that is, disenfranchisement—“on account of inability to pay fines or fees.” Jones, 950 F.3d at 818 (emphasis added). The Supreme Court has never extended Bearden beyond the context of poverty-based imprisonment. See Kadrmas v. Dickinson Pub. Schs., 487 U.S. 450, 461 n.* (1988) (declining to extend Bearden). And Williams, the foundational decision in this line of precedent, stated that nothing in its holding “limit[ed] the power of the [State] to impose alternative sanctions” besides imprisonment on defendants who cannot satisfy the monetary terms of their sentences. 399 U.S. at 245; accord Bearden, 461 U.S. at 671–72.
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But even if Bearden applied beyond poverty-based imprisonment, it would not help the felons for a more fundamental reason. Amendment 4 and Senate Bill 7066 do not impose additional punishment because of a felon’s failure to pay his fines, fees, costs, and restitution. Florida automatically disenfranchises all felons upon conviction, and the challenged laws only lift that punishment for felons who have completed all terms of their sentences. This case would resemble Bearden if Florida left the right to vote intact upon conviction but then revoked the franchise from any felons who could not pay their fines and restitution. In that scenario, the State would have determined that its “penological interests do not require” disenfranchisement, which would call into doubt the decision to impose disenfranchisement solely because of a felon’s inability to pay fines and restitution. Bearden, 461 U.S. at 670. But Florida does nothing of the kind.
The Supreme Court has also applied heightened scrutiny to laws that condition access to certain judicial proceedings on the ability to pay. See M.L.B., 519 U.S. at 110–16 (tracing the development of this exception to Griffin, 351 U.S. 12). But this exception to rational basis review applies only when the State makes “access to judicial processes in cases criminal or quasi criminal in nature turn on ability to pay.” Id. at 124 (citation and internal quotation marks omitted). And even when the Supreme Court has extended the right of access to the courts to other kinds of judicial proceedings, it has “felt compelled to justify even . . . slight
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extension[s] of the right.” Lewis v. Casey, 518 U.S. 343, 354 (1996). The extension the felons seek is hardly “slight”—the challenged laws do not concern access to judicial proceedings at all. The access-to-courts precedents are wholly inapposite.
The felons resist the conclusion that the Bearden and Griffin lines of precedent are limited to the contexts in which they arose, but they identify no decisions that invoke Bearden or Griffin to apply heightened scrutiny to a claim of wealth discrimination outside those contexts. And the dissenters’ contention that “the Supreme Court applied Griffin to the voting context in Harper,” Jordan Dissent at 119, is plainly inaccurate. Far from “rel[ying] on Griffin to invalidate . . . Virginia[’s] poll tax,” id., Harper cited Griffin once in passing to support the proposition that “[l]ines drawn on the basis of wealth or property . . . are traditionally disfavored,” Harper, 383 U.S. at 668 (citing Griffin, 351 U.S. 12). The Court did not provide even a pinpoint citation to any passage in Griffin, much less analysis extending it to the context of voting. Id. The Supreme Court has made clear that heightened scrutiny for claims of wealth discrimination is the exception, not the rule. M.L.B., 519 U.S. at 123–24. Unable to fit their claim into any existing exception, the felons rely on “nothing more than an amalgamation” of multiple theories, each of which lacks merit on its own. Pac. Bell Tel. Co. v. Linkline Commc’ns, Inc., 555 U.S. 438, 452 (2009).
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We hold that rational basis review applies and overrule the contrary holding by the panel in the earlier appeal from the preliminary injunction. Jones, 950 F.3d at 800. Stare decisis does not counsel that we should adhere to that earlier decision. See McCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc., 851 F.3d 1076, 1096 (11th Cir. 2017) (en banc). The doctrine of stare decisis “is at its weakest when we interpret the Constitution.” Ramos v. Louisiana, 140 S. Ct. 1390, 1405 (2020) (internal quotation marks omitted). Because the panel interpreted the Constitution and not a statute, only we or the Supreme Court can correct its “gravely mistaken” reasoning. Id. That earlier decision is inconsistent with clear Supreme Court precedent and every relevant decision of our sister circuits—indeed, it is, to our knowledge, the only appellate decision ever to apply heightened scrutiny to felon reenfranchisement in the absence of any suspect classification. See id. (considering “consistency with related decisions”). And any reliance interests on that decision— which affirmed a preliminary injunction entered earlier this year in this very litigation—are weak. See Franchise Tax Bd. v. Hyatt, 139 S. Ct. 1485, 1499 (2019) (rejecting “case-specific costs” as a reliance interest that can justify adhering to “an incorrect resolution of an important constitutional question”).
A classification survives rational basis review if it is rationally related to some legitimate government interest, Heller, 509 U.S. at 320, and two interests are relevant here. Florida unquestionably has an interest in disenfranchising convicted
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felons, even those who have completed their sentences. See Richardson, 418 U.S. at 56. But Amendment 4 and Senate Bill 7066 also reflect a different, related interest. They advance Florida’s interest in restoring felons to the electorate after justice has been done and they have been fully rehabilitated by the criminal justice system. The policy Florida has adopted reflects the “more modern view” described in Richardson that “it is essential to the process of rehabilitating the ex-felon that he be returned to his role in society as a fully participating citizen when he has completed the serving of his term.” Id. at 55. The twin interests in disenfranchising those who disregard the law and restoring those who satisfy the demands of justice are both legitimate goals for a State to advance. See id. at 55–56. The question is whether the classification Florida has adopted between felons who have completed their full sentences and those who have not is rationally related to those interests.
The dissenters suggest that Florida’s only possible interests are in punishment and debt collection, Jordan Dissent at 145–49, and that narrow view leads them to conclude that Senate Bill 7066 is irrational, id. at 149. The dissenters dismiss our view that Florida also has an interest in restoring rehabilitated felons to the electorate as “an ipse dixit . . . [that] merely restates what the law does.” Id. at 141. But it is not unusual for a policy to directly achieve an objective itself. See Adams ex. rel. Kasper v. Sch. Bd. of St. Johns Cnty., 968 F.3d 1286, __ (11th Cir.
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2020) (W. Pryor, C.J., dissenting). And we do not think it is unnatural to find state interests broader than punishment and revenue-raising in a reenfranchisement law.
In deciding whether Florida’s classification is rational, we are mindful that our review is extremely narrow. See FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 314 (1993) (“This standard of review is a paradigm of judicial restraint.”). We must uphold the classification unless the felons “negative every conceivable basis which might support it.” Id. at 315 (internal quotation marks omitted). For this reason, the Supreme Court “hardly ever strikes down a policy as illegitimate under rational basis scrutiny.” Trump v. Hawaii, 138 S. Ct. 2392, 2420 (2018). In the rare instances when it has done so, “a common thread has been that the laws at issue lack any purpose other than a ‘bare desire to harm a politically unpopular group.’” Id. (alteration adopted) (quoting U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528, 534 (1973)); see also Romer v. Evans, 517 U.S. 620, 634 (1996); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 446–47, 450 (1985). There is no evidence that any kind of animus toward indigent felons motivated Florida voters and legislators to condition reenfranchisement on the completion of all terms of sentence. After all, the voters of Florida made it easier for the vast majority of felons—who are disproportionately indigent—to regain their voting rights. So we must uphold their choice if there is any conceivable basis that could justify it. See Heller, 509 U.S. at
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319 (“[R]ational-basis review . . . is not a license for courts to judge the wisdom, fairness, or logic of legislative choices.” (internal quotation marks omitted)).
Under this deferential standard, we readily conclude that Florida’s classification survives scrutiny. The people of Florida could rationally conclude that felons who have completed all terms of their sentences, including paying their fines, fees, costs, and restitution, are more likely to responsibly exercise the franchise than those who have not. See Green, 380 F.2d at 451. If a State may decide that those who commit serious crimes are presumptively unfit for the franchise, id., it may also conclude that those who have completed their sentences are the best candidates for reenfranchisement.
To be sure, the line Florida drew might be imperfect. The classification may exclude some felons who would responsibly exercise the franchise and include others who are arguably less deserving. But Florida was not required “to draw the perfect line nor even to draw a line superior to some other line it might have drawn.” Armour v. City of Indianapolis, 566 U.S. 673, 685 (2012). The Constitution requires only “a rational line.” Id. The line between felons who have completed their sentences and those who have not easily satisfies that low bar.
The classification is rational for other reasons too. Before extending the franchise to even more felons, Florida may have wished to test the waters by reenfranchising only those who complete their full sentences. Under rational basis
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review, “reform may take one step at a time.” Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 489 (1955). The State need not “strike at all evils at the same time or in the same way,” Semler v. Or. State Bd. of Dental Exam’rs, 294 U.S. 608, 610 (1935), and “[a] statute is not invalid under the Constitution because it might have gone farther than it did,” Roschen v. Ward, 279 U.S. 337, 339 (1929). Although “every reform that benefits some more than others may be criticized for what it fails to accomplish,” that reality does not invalidate the measure under the Equal Protection Clause. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 39 (1973).
Confusion about Florida’s voter registration system and the record before the district court leads the dissenters to conclude that Senate Bill 7066 “does not ‘rationally’ further the goal of re-enfranchising felons,” a goal the dissent acknowledges only “[f]or the sake of argument.” Jordan Dissent at 141, 143. The dissenters purport to prove that conclusion with a smoking gun: “the fact that Florida had restored voting rights to 0 felons as of the time of trial.” Id. at 143. But that “fact” is not true. Once a felon submits a facially complete registration form and Florida determines that he is a real person, he is added to the voting rolls as a registered voter; he is not then required to prove that he has completed his sentence. To be sure, Florida attempts to identify “registered voters” with felony convictions whose rights have not been restored and, after securing “credible and
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reliable” information, initiates the process of removing them from the voter registration system. Fla. Stat. §§ 98.075(5) and (7); see also id. at § 98.0751(3) (governing administration of § 98.075(5) in the light of Amendment 4). But at the time of trial, 85,000 felons had submitted facially complete voter registration forms, and Florida had not yet been able to find information justifying the removal of any of them from the voting rolls. Until it does, all 85,000 are entitled to vote. The dissenters’ contention that state officials’ implementation of Amendment 4 has prevented any felons from benefitting from the amendment is false. Eighty-five thousand felons are now registered voters, and each one will remain so unless Florida meets its self-imposed burden of gathering the information necessary to prove his ineligibility. Our dissenting colleagues quibble with our assertion that all of these registered voters are “entitled to vote,” see Jordan Dissent at 144; Martin Dissent at 94 n.3, but they point to no evidence that any of the 85,000 voters will be unable to cast a ballot in an upcoming election.
The felons argue that Florida rendered its classification irrational by adopting the “every dollar” method for determining when a sentence is complete, but this argument misunderstands rational basis review. If the relationship between a State’s interest and its means of achieving it is “at least debatable,” then it survives scrutiny. Gary v. City of Warner Robins, 311 F.3d 1334, 1339 (11th Cir. 2002) (quoting United States v. Carolene Prods. Co., 304 U.S. 144, 154 (1938)).
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The “every dollar” policy is at least arguably related to Florida’s interest in reenfranchising only those felons who have paid their debt to society and been fully rehabilitated. It ensures that no felons will be reenfranchised unless they have paid amounts equal to those imposed in their criminal sentences. Florida could rationally define “completion” of a sentence in this manner to help ensure that felons who enrolled in payment plans pay no more to complete their sentences than felons who paid their fines, fees, costs, and restitution immediately.
The reasoning of the district court and the panel in the earlier appeal bore no resemblance to rational basis review. Their first error was to assess the rationality of Florida’s classification by asking only whether it was rational to prohibit these plaintiffs from voting. See Jones, 950 F.3d at 813 (“Florida’s continued disenfranchisement of these seventeen plaintiffs is not rationally related to any legitimate governmental interest.” (emphasis added)); Jones v. DeSantis, __ F. Supp. 3d __, __, 2020 WL 2618062, at *15 (N.D. Fla. 2020) (claiming that a proper approach to rational-basis scrutiny allows a court to “consider[] the rationality of a statute as applied to particular plaintiffs without opining on its rationality more generally.” (quoting Jones, 950 F.3d at 814)). A legislative classification “may be based on rational speculation unsupported by evidence.” Beach Commc’ns, 508 U.S. at 315. For that reason, a law may be rational “even if in a particular case [it] appears to discriminate irrationally.” In re Wood, 866 F.2d
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1367, 1370 (11th Cir. 1989); see also Beller v. Middendorf, 632 F.2d 788, 808 n.20 (9th Cir. 1980) (Kennedy, J.) (“Nearly any statute which classifies people may be irrational as applied in particular cases.”).
The dissenters repeat the error of the district court and the panel in the earlier appeal. And they accuse us of ignoring the Supreme Court’s decision in City of Cleburne, see Jordan Dissent at 135–36, which they describe as applying rational-basis review to affirm a judgment “insofar as it [held an] ordinance invalid as applied in this case,” City of Cleburne, 473 U.S. at 448. But applying rationalbasis review in a “case” is not the same as applying it to the unique circumstances of a specific plaintiff. After the passage cited by the dissenters, the Supreme Court in City of Cleburne evaluated whether the city’s proffered reasons for requiring a permit for a group home of people with intellectual disabilities but not for comparable facilities rationally reflected relevant differences between “the mentally retarded as a group” and others. Id. at 448–50 (emphasis added). The Court did not focus on factors unique to the particular disabled people involved in the appeal—City of Cleburne does not justify the dissenters’ narrow focus on whether Florida’s classification applies rationally to the particular plaintiffs in this appeal.
The second error of the district court and the panel in the earlier appeal was to assume that the law would be rational if most felons could eventually pay their
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fines, fees, costs, and restitution but irrational if a substantial number could not. See Jones, 950 F.3d at 814. The proportion of felons who can eventually complete their sentences has no bearing on whether it is rational to conclude that felons who do complete their sentences—whatever their number—are generally more deserving of reenfranchisement than those who do not. The district court and the panel in the earlier appeal reached a contrary conclusion only by disregarding settled law. See Beach Commc’ns, 508 U.S. at 315; United States v. Castillo, 899 F.3d 1208, 1213 (11th Cir. 2018). The dissenters echo that flawed reasoning when they contend that any law that would leave a substantial portion of felons unable to benefit from Amendment 4 is “a nullification of the will of the electorate.” Jill Pryor Dissent at 200. But the face of the amendment makes clear that Florida voters do not share the dissenters’ view that it is unjust to tell some criminals that they have incurred debts to society that will never be repaid. See Fla. Const. art. VI, § 4(b) (denying automatic reenfranchisement to felony sex offenders and murderers). In fact, it is the dissenters who would nullify the will of the Florida electorate by reenfranchising felons whom voters clearly would not have expected to benefit from Amendment 4, including a named plaintiff who jointly owes $59 million in restitution for conspiracy to commit insurance and wire fraud. Florida’s voters intended only to reenfranchise felons who have been fully rehabilitated, and Senate Bill 7066 drew a rational line in pursuit of that goal.
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B. Amendment 4 and Senate Bill 7066 Do Not Violate the Twenty-Fourth Amendment.
Ratified in 1964, the Twenty-Fourth Amendment to the Constitution forbids taxes on voting in federal elections:
The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, 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. U.S. Const. amend. XXIV, § 1. The felons argue that Florida has denied them the right to vote by reason of their failure to pay court fees and costs imposed in their criminal sentences, which they contend are an “other tax” under the Twenty-Fourth Amendment. They do not argue that fines and restitution are taxes, and for good reason. Fines, which are paid to the government as punishment for a crime, and restitution, which compensates victims of crime, are not taxes under any fair reading of that term. The felons’ argument presents two questions: first, whether fees and costs imposed in a criminal sentence are taxes under the Twenty-Fourth Amendment; and second, if fees and costs are taxes, whether Florida has denied the right to vote “by reason of” the failure to pay fees and costs.
1. Court Costs and Fees Are Not Taxes. The term “tax” is a broad one, but it does not cover all monetary exactions imposed by the government. The Supreme Court has long distinguished taxes from
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penalties in a variety of contexts. See, e.g., United States v. Constantine, 296 U.S. 287, 293–94 (1935); United States v. La Franca, 282 U.S. 568, 572 (1931). This distinction was well established when the Twenty-Fourth Amendment was adopted, and it continues to define the outer limits of the term “tax” today. See Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 563, 567–70 (2012) (holding, under the canon of constitutional avoidance, that a federal law levied a tax because it could reasonably be read not to impose a penalty). In short, if a government exaction is a penalty, it is not a tax.
“The difference between a tax and a penalty is sometimes difficult to define,” Child Labor Tax Case, 259 U.S. 20, 38 (1922), but at least one principle is clear. The Supreme Court has explained in multiple contexts that “if the concept of penalty means anything, it means punishment for an unlawful act or omission.” Nat’l Fed’n of Indep. Bus., 567 U.S. at 567 (quoting United States v. Reorganized CF & I Fabricators of Utah, Inc., 518 U.S. 213, 224 (1996)); see also La Franca, 282 U.S. at 572. Court fees and costs imposed in a criminal sentence fall within this definition: they are part of the State’s punishment for a crime. They are not taxes.
Several features of the costs and fees at issue make clear that they are punishment for criminal wrongdoing. Most importantly, they are part of a defendant’s criminal sentence—“the punishment imposed on a criminal
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wrongdoer.” Sentence, Black’s Law Dictionary (11th ed. 2019). Florida caselaw holds that the costs of prosecution are criminal punishment for purposes of double jeopardy; they cannot be increased after a defendant begins serving his sentence. Martinez v. State, 91 So. 3d 878, 879–80 (Fla. Dist. Ct. App. 2012). And if a felon cannot pay a financial obligation imposed in his sentence, the sentencing court may “convert the statutory financial obligation into a court-ordered obligation to perform community service,” Fla. Stat. § 938.30(2), a provision that makes little sense if costs and fees exist primarily to raise revenue and not to punish and rehabilitate offenders.
Like fines and restitution, fees and costs are also linked to culpability. Florida imposes heftier costs on felony offenders than those convicted of misdemeanors or criminal traffic offenses, and it does not impose any fees and costs if a criminal case ends in an acquittal or a nolle prosequi. See id. §§ 938.05(1), 939.06(1). Florida imposes fees and costs only on those who are convicted of a crime or who have their adjudication of guilt withheld, a process that allows the court to suspend the imposition of sentence if it determines “that the defendant is not likely again to engage in a criminal course of conduct and that the ends of justice and the welfare of society do not require that the defendant presently suffer the penalty imposed by law.” Id. § 948.01(2). But even felony defendants who have their adjudication of guilt withheld are subject to the punitive
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and rehabilitative powers of the sentencing court: they must complete a term of probation and may have to pay both fines and costs. See State v. Tribble, 984 So. 2d 639, 640–41 (Fla. Dist. Ct. App. 2008); Clinger v. State, 533 So. 2d 315, 316– 17 (Fla. Dist. Ct. App. 1988). The punitive nature of fees and costs is no less applicable to defendants who plead nolo contendere because that plea, like a guilty plea, results in a conviction and “gives the court the power to punish.” Vinson v. State, 345 So. 2d 711, 715 (Fla. 1977).
The Supreme Court has relied on similar features to conclude that exactions that bore a far greater resemblance to taxes than court costs do were in fact penalties. For example, the Court held that a “so-called tax” on the possession of illegal drugs was in reality criminal punishment in part because the exaction was “conditioned on the commission of a crime.” Dep’t of Revenue of Mont. v. Kurth Ranch, 511 U.S. 767, 781 (1994); see also Nat’l Fed’n of Indep. Bus., 567 U.S. at 566 (relying on Kurth Ranch to distinguish taxes from penalties). “That condition,” the Court explained, was “significant of penal and prohibitory intent rather than the gathering of revenue.” Kurth Ranch, 511 U.S. at 781 (internal quotation marks omitted). The Court relied on similar reasoning to hold that a $1,000 excise imposed only on those who violated state liquor laws was a penalty, not a tax. Constantine, 296 U.S. at 295.
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The functional analysis used in National Federation of Independent Business supports our conclusion that the fees and costs in this appeal are penalties, not taxes. The Court explained that exactions imposed only on those who knowingly violate the law are suggestive of a penalty, not a tax. 567 U.S. at 565–66. The Court also stressed that using a “criminal prosecution” to collect an exaction is “suggestive of a punitive sanction.” Id. at 566. And the Court reasoned that an exaction is likely a tax when the behavior to which it applies is lawful. Id. at 568 (“Neither the Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS. . . . [I]f someone chooses to pay rather than obtain health insurance, they have fully complied with the law.”). Here, by contrast, fees and costs are imposed only on those who, following criminal prosecution for their unlawful acts, are subject to the punitive and rehabilitative powers of a Florida court. The characteristic features of penalties that the Court noted were absent in National Federation of Independent Business are present here.
To be sure, one purpose of fees and costs is to raise revenue, but that does not transform them from criminal punishment into a tax. Every financial penalty raises revenue for the government, sometimes considerable revenue. In addition to costs and fees, Florida uses criminal fines to fund both its courts and general government operations, but that additional purpose does not make them taxes. See
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Fla. Stat. § 142.01(1) (establishing the “fine and forfeiture fund” for use “in performing court-related functions”); id. § 775.083(1) (directing that criminal fines be deposited in the fine and forfeiture fund); id. § 316.193(2)(a) (directing the clerk to remit portions of fines for driving under the influence “to the Department of Revenue for deposit into the General Revenue Fund”). Nor does the fact that many fees and costs do not vary based on the severity of the offense render them nonpunitive. Some punishments, like disenfranchisement, are imposed on all felons alike regardless of the severity of their crimes. Because court costs and fees are legitimate parts of a criminal sentence—that is, part of the debt to society that felons must pay for their crimes—there is no basis to regard them as a tax. We hold that fees and costs imposed in a criminal sentence are not taxes under the TwentyFourth Amendment, and we reject the felons’ Twenty-Fourth Amendment argument on that basis.
2. Florida Does Not Deny the Right to Vote “by Reason of” Failure to Pay a Tax.
Even if fees and costs were taxes, the felons’ reliance on the Twenty-Fourth Amendment would be misplaced. The Twenty-Fourth Amendment provides that “[t]he right . . . to vote . . . shall not be denied or abridged . . . by reason of failure to pay any poll tax or other tax.” U.S. Const. amend. XXIV, § 1. A financial obligation that indirectly burdens the right to vote is permissible under the TwentyFourth Amendment when the State has a constitutionally legitimate reason for
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imposing the voter qualification that creates the indirect burden. But before explaining why, it is necessary to address—and reject—an argument that the State makes.
In addition to its argument that fees and costs are not taxes, the State contends that the Twenty-Fourth Amendment “does not apply when the right to vote has been constitutionally forfeited.” Quoting the Ninth Circuit’s opinion in Harvey v. Brewer, the State contends that because disenfranchised felons have “lost their right to vote, they . . . have no cognizable Twenty-Fourth Amendment claim until their voting rights are restored.” 605 F.3d at 1080; see also Johnson, 624 F.3d at 751. The State maintains that Amendment 4 and Senate Bill 7066 provide only “requirements for reenfranchisement,” which the Twenty-Fourth Amendment does not govern.
The implication of that logic for the other voting-rights amendments shows why the State’s argument is plainly wrong. If the voting-rights amendments protect only those with a pre-existing right to vote and do not apply to so-called “reenfranchisement laws,” then a State would not violate the Fifteenth Amendment by denying that right to reenfranchisement only to black felons. A State also would not violate the Nineteenth Amendment by denying the right only to female felons. And it would not violate the Twenty-Sixth Amendment by denying the right only to younger felons. According to the State’s logic, none of the voting-rights
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amendments would have anything to say about discriminatory “reenfranchisement” laws, because reenfranchisement is “an act of grace” extended to a class that has no cognizable rights. To be sure, the State denied that implication of its position at oral argument, see Oral Argument at 7:00–8:00 (Aug. 18, 2020) (conceding that discriminatory reenfranchisement laws would violate the Fifteenth, Nineteenth, and Twenty-Sixth Amendments), and for good reason. Any of the discriminatory reenfranchisement laws described above would clearly violate the voting-rights amendments.
Consider the Supreme Court’s treatment of literacy tests. Some States denied illiterate persons the right to vote after the ratification of the Fifteenth Amendment, a practice the Supreme Court held was then lawful. See Guinn v. United States, 238 U.S. 347, 366 (1915); Lassiter v. Northampton Cnty. Bd. of Elections, 360 U.S. 45, 50–53 (1959). But even though States were free to deny the right to vote to all illiterate persons, the Fifteenth Amendment forbade them to discriminate within the class of illiterate non-voters by exempting only white citizens from literacy tests. See Guinn, 238 U.S. at 364–65.
In the same way, States may deny all felons the right to vote but may not, consistent with the Twenty-Fourth Amendment, discriminate among felons by extending the franchise to some felons while denying it to others by reason of their failure to pay a tax. The Twenty-Fourth Amendment, like the Fifteenth and
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Nineteenth Amendments before it and the later Twenty-Sixth Amendment, applies whenever the State sets a voter qualification that extends the right to vote to some persons but denies it to others on a prohibited basis. The Twenty-Fourth Amendment plainly applies to felon reenfranchisement. The only remaining question is whether Florida denies some felons the right to vote “by reason of” their failure to pay a poll tax or other tax.
The felons argue that the phrase “by reason of” requires “the simple and traditional standard of but-for causation,” which asks whether “a particular outcome would not have happened ‘but for’ the purported cause.” Bostock v. Clayton County, 140 S. Ct. 1731, 1739 (2020) (internal quotation marks omitted). Florida law violates the Twenty-Fourth Amendment, the felons argue, because Amendment 4 and Senate Bill 7066 make their failure to pay court fees and costs a but-for cause of the denial of their right to vote. The problem with this argument is that the text of the Twenty-Fourth Amendment does not establish a but-for causal relationship between the failure to pay a tax and the denial of the right to vote.
To be sure, “[t]he phrase ‘by reason of’ denotes some form of causation.” Husted v. A. Philip Randolph Inst., 138 S. Ct. 1833, 1842 (2018) (citing Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009)). But the phrase is not selfdefining, and dictionary definitions are of limited value because they tend to define “because of,” “by reason of,” and “on account of” only in circular reference to one
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another. See, e.g., Account, Webster’s New International Dictionary (2d ed. 1959) (defining “on account of” as “[f]or the sake of; by reason of; because of”); Reason, Oxford English Dictionary (1933) (defining “[b]y . . . reason of” as “on account of”). Indeed, the Supreme Court has explained that the phrase “by reason of” can bear meanings that range from but-for cause, Holmes v. Sec. Inv. Prot. Corp., 503 U.S. 258, 265–66 (1992), all the way to sole cause, Husted, 138 S. Ct. at 1842–43. Absent a more specific definition in the text, we must look to context to determine whether “by reason of” in the Twenty-Fourth Amendment refers to but-for cause, sole cause, or some other relationship. See id. at 1842 (citing Holmes, 503 U.S. at 265–68); see also Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts § 2, at 56 (2012) (“[W]ords are given meaning by their context . . . .”). And the context of the Twenty-Fourth Amendment forecloses the possibility that but-for causation is the relevant standard.
The most relevant context is the text of the other voting-rights amendments to the Constitution. The felons acknowledge this reality. They point to the fact that the “Twenty-Fourth Amendment’s text mirrors the Fifteenth, Nineteenth, and Twenty-Sixth Amendments” as evidence that the Twenty-Fourth Amendment, like the other amendments, imposes a categorical ban on certain voting qualifications— a ban that is “not subject to exceptions in the rights-restoration context.”
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The felons are correct in one respect: just as it would plainly violate the other amendments to reenfranchise only white, male, or 30-year old felons, it would also violate the Twenty-Fourth Amendment to reenfranchise only felons who pay a poll tax—that is, a tax on the franchise itself. But the felons overlook one important difference between the Twenty-Fourth Amendment and the other amendments: the language it uses to describe the relationship between the denial of the right to vote and the prohibited basis of that denial.
Consider the text of all four voting-rights amendments. The Fifteenth Amendment says that the right to vote may not be denied “on account of race, color, or previous condition of servitude.” U.S. Const. amend. XV, § 1 (emphasis added). The Nineteenth Amendment says that this right may not be denied “on account of sex.” Id., amend. XIX (emphasis added). And the Twenty-Sixth Amendment says that it may not be denied to citizens age 18 or older “on account of age.” Id., amend. XXVI, § 1 (emphasis added). In contrast, the Twenty-Fourth Amendment alone uses the phrase “by reason of” instead of “on account of.”
A material variation in language suggests a variation in meaning. See Scalia & Garner, Reading Law § 25, at 170–73; see also Akhil Reed Amar, Intratextualism, 112 Harv. L. Rev. 747, 761 (1999) (“[T]he same (or very similar) words in the same document should, at least presumptively, be construed in the same (or a very similar) way. But the flip side of the intratextual coin is that when
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two (or more) clauses feature different wording, this difference may also be a clue to meaning, and invite different construction of the different words.”). So the text of the Constitution creates an inference that the right to vote stands in a different relationship to race, sex, and age than it does to the nonpayment of taxes. To understand this difference in meaning, one should begin with the meanings of the Fifteenth and Nineteenth Amendments, both of which were well established when the Twenty-Fourth Amendment was ratified. With an understanding of those amendments in place, evidence surrounding the ratification of the Twenty-Fourth Amendment makes clear that the difference in language reflects a difference in meaning.
The Fifteenth and Nineteenth Amendments are best understood to forbid any voter qualification that makes race or sex a but-for cause of the denial of the right to vote. The relationship between the right to vote and a person’s race is the most thoroughly discussed in Supreme Court precedent, and the but-for causation principle is clear in that context. Race is never a permissible criterion for determining the scope of the franchise. And this understanding extends to the Nineteenth Amendment’s prohibition of sex-based voter qualifications.
The Fifteenth Amendment’s prohibition on accounting for race as a voter qualification is absolute. This prohibition is powerful enough to “remove . . . or render inoperative” any suffrage provision in a state constitution that refers to race,
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even in the absence of implementing legislation by Congress. Neal v. Delaware, 103 U.S. 370, 389 (1880); accord Guinn, 238 U.S. at 363. The amendment has similar bite even when States impose discriminatory voting qualifications by facially neutral means. In Guinn, the Supreme Court invalidated an amendment to the Constitution of Oklahoma that created a literacy test for voting but exempted from the test any person who was eligible to vote before the ratification of the Fifteenth Amendment. 238 U.S. at 364–67. Although the state constitution “contain[ed] no express words” limiting the franchise “on account of race, color, or previous condition of servitude,” the grandfather clause “inherently [brought] that result into existence,” which violated the Fifteenth Amendment. Id. at 364–65. As the Supreme Court explained in another early decision interpreting the Fifteenth Amendment: “If citizens of one race having certain qualifications are permitted by law to vote, those of another having the same qualifications must be.” United States v. Reese, 92 U.S. 214, 218 (1875). If changing a voter’s race changes his eligibility to vote, the law is invalid. Cf. Bostock, 140 S. Ct. at 1739.
To be sure, our nation failed to achieve the egalitarian goal of the Fifteenth Amendment to any significant degree until Congress used its power under section 2 of the amendment to enact the Voting Rights Act of 1965. See South Carolina v. Katzenbach, 383 U.S. 301, 308–09 (1966). But the amendment established a powerful baseline: States must set voter qualifications without any
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regard to race. The Fifteenth Amendment does not subject race-based voter qualifications to strict scrutiny—they are per se unconstitutional. See Rice v. Cayetano, 528 U.S. 495, 511–12 (2000). It ensures that any argument that a racebased voter qualification is “tied rationally to the fulfillment” of an important government interest, id. at 548 (Ginsburg, J., dissenting) (internal quotation marks omitted), falls on deaf ears. “There is no room under the Amendment for the concept that the right to vote in a particular election can be allocated based on race.” Id. at 523 (majority opinion). If a State acts in any way to make race relevant to voter qualifications, either facially or with a discriminatory purpose, it violates the Fifteenth Amendment. See Reno v. Bossier Par. Sch. Bd., 520 U.S. 471, 481 (1997) (citing City of Mobile v. Bolden, 446 U.S. 55, 62 (1980) (plurality opinion)).
The Nineteenth Amendment forbids the use of sex as a voter qualification in the same way. The Supreme Court has discussed the Nineteenth Amendment in detail only twice—once in a decision upholding the amendment against a challenge to its validity, Leser v. Garnett, 258 U.S. 130, 136 (1922), and once in a decision upholding a poll tax that included an exception for nonvoting women, Breedlove v. Suttles, 302 U.S. 277, 279–80 (1937), overruled by Harper, 383 U.S. 663. In both decisions, the Court confirmed that the Nineteenth Amendment operates just like the Fifteenth Amendment. The Court explained in Leser that the Nineteenth
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Amendment “is in character and phraseology precisely similar to the Fifteenth.” 258 U.S. at 136. And in Breedlove, the Court stated that the Nineteenth Amendment, like the Fifteenth, is an absolute and self-enforcing prohibition on discriminatory classifications in voting. 302 U.S. at 283 (“[The Nineteenth Amendment] applies to men and women alike and by its own force supersedes inconsistent measures, whether federal or state.” (citing Leser, 258 U.S. at 135)).
By the time Congress proposed the Twenty-Fourth Amendment in 1962, the Fifteenth and Nineteenth Amendments, which provided that the right to vote could not be denied or abridged “on account of race” or “on account of sex,” were clearly and correctly understood to prevent the States from making a person’s eligibility to vote turn in any way on race or sex. Under the Fifteenth and Nineteenth Amendments, a but-for-causation test like the one the felons propose accurately reflects the constitutional rule. When a State sets a voter qualification that would allow a person to vote but for the person’s race or sex, it violates the Constitution.
But the Twenty-Fourth Amendment did not adopt the language of the Fifteenth and Nineteenth Amendments wholesale. The Twenty-Fourth Amendment prohibits States from denying the right vote “by reason of” the failure to pay a tax, not “on account of” it. If possible, that different language should be given a different meaning. Interpreting the phrase “by reason of” only as a synonym for
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“on account of” violates well-established principles of textual interpretation. See Scalia & Garner, Reading Law § 25, at 170–73.
Ample evidence supports the conclusion that “by reason of” in the TwentyFourth Amendment does not refer to but-for causation. To begin, the only Supreme Court decision to apply the amendment does not reflect a but-for causal standard. In Harman v. Forssenius, decided only a year after ratification of the TwentyFourth Amendment, the Court considered a Virginia law enacted in anticipation of the amendment that allowed voters to forego payment of their poll taxes and still vote in federal elections if they filed a “certificate of residence” at least six months before the election. 380 U.S. 528, 531–32 (1965). Because the Twenty-Fourth Amendment “nullifies sophisticated as well as simple-minded modes of impairing the right guaranteed” and the certificate requirement “perpetuat[ed] . . . the disenfranchising characteristics of the poll tax which the Twenty-fourth Amendment was designed to eliminate,” the Supreme Court held that the certificate requirement was an unconstitutional substitute for the poll tax. Id. at 540–42 (internal quotation marks omitted). The Harman Court based its decision on the rule that a State may not impose “a material requirement solely upon those who refuse to surrender their constitutional right to vote in federal elections without paying a poll tax.” Id. at 541.
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If the felons are correct that the Twenty-Fourth Amendment prohibits States from setting voter qualifications that make the failure to pay a tax a but-for cause of the denial of the right to vote, then the rule Harman announced was unexpectedly narrow. Under the law challenged in Harman, voters were turned away if they failed to either pay a poll tax or file a certificate of registration—each failure was a but-for cause of the denial of the right to vote. So if but-for causation were the relevant standard, most of the analysis in Harman, and the entire rule quoted above, would have been unnecessary. The Court could have decided the case by pointing out that the failure to pay a tax was part of the causal chain that led to the denial of the right to vote. So Harman suggests that the Twenty-Fourth Amendment requires a tighter relationship between nonpayment of a tax and denial of the right to vote than but-for causation.
Other settled principles confirm that the Twenty-Fourth Amendment does not adopt a but-for causal standard. Richardson allows States to disenfranchise all felons upon conviction; it makes no exception for felons who were convicted because they failed to pay their taxes. 418 U.S. at 56. And the Twenty-Fourth Amendment has never been understood to prohibit States from disenfranchising tax felons, even if the failure to pay taxes is a but-for cause of their disenfranchisement. See generally Sloan G. Speck, Comment, “Failure to Pay Any Poll Tax or Other Tax”: The Constitutionality of Tax Felon Disenfranchisement,
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74 U. Chi. L. Rev. 1549 (2007). The en banc Ninth Circuit has similarly held that requiring voters to present identification at the polls does not violate the TwentyFourth Amendment even though obtaining identification “may have a cost.” Gonzalez, 677 F.3d at 407. That conclusion is consistent with the plurality opinion in Crawford v. Marion County Election Board, which concluded that Indiana’s voter-identification law was facially constitutional, 553 U.S. at 204, even as it acknowledged that obtaining valid identification could involve paying between $3 and $12 to obtain a copy of one’s birth certificate, id. at 198 n.17.
Because the phrase “by reason of” cannot refer only to but-for causation, it is necessary to consider other possible meanings. Focusing on the main word in that phrase yields an answer: the Twenty-Fourth Amendment prohibits denials of the right to vote for which the failure to pay a tax is not only the but-for cause, but also the reason for the State’s action.
The word “reason” has multiple commonly used subsenses. Some of them, of course, are closely related to but-for causation. See, e.g., Reason, Webster’s New International Dictionary (2d ed. 1959) (“A ground or cause”). But the TwentyFourth Amendment’s textual divergence from the Fifteenth, Nineteenth, and Twenty-Sixth Amendments, together with other contextual clues, eliminates these subsenses from consideration. Many of the other subsenses of the word “reason” relate to the concept of justification, itself a kind of causation. For example,
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“reason” may refer to an “expression or statement offered . . . as a justification of an act or procedure” or a “consideration, motive, or judgment . . . leading to an action or course of action; a rational ground or motive.” Id. This second, justification-based subsense controls the meaning of “by reason of” in the TwentyFourth Amendment.
Under this second subsense, the Twenty-Fourth Amendment prohibits denials of the right to vote motivated by a person’s failure to pay a tax. It does not prohibit every voting requirement with any causal relationship to the payment of a tax. If a State establishes a legitimate voter qualification for constitutionally legitimate reasons, it does not violate the Twenty-Fourth Amendment—even if the qualification sometimes denies the right to vote because a person failed to pay a tax. To take the most obvious example, a requirement that voters have no felony convictions is lawful even if the but-for cause of a felony conviction is the failure to pay taxes. The Twenty-Fourth Amendment does not forbid the disenfranchisement of tax felons.
That conclusion finds support in Harman, the only Supreme Court decision to apply the Twenty-Fourth Amendment. Central to Harman’s reasoning was the Court’s judgment that the certificate-of-residency alternative was designed as a “substitute” for the poll tax, which in turn “was born of a desire to disenfranchise the Negro.” 380 U.S. at 542–43. The Court also concluded that Virginia’s scheme
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was not necessary to enforce its residency requirements, especially considering that forty-six States were able to limit the electorate to residents without resort to similar measures. Id. In the light of those realities, it was clear that Virginia lacked a legitimate justification for its law—the State’s bifurcated registration system was motivated by a desire to tax the franchise. Because Virginia had no constitutionally legitimate reason for its law that made the failure to pay a tax a but-for cause of the denial of the right to vote, Harman held that the law violated the Twenty-Fourth Amendment.
Even if court costs and fees imposed in a criminal sentence were taxes, Amendment 4 and Senate Bill 7066 would not violate the Twenty-Fourth Amendment. To be sure, if these obligations were taxes, the failure to pay them would be a but-for cause of continued disenfranchisement, just as the failure to pay the poll tax was a but-for cause of the denial of the right to vote in Harman. But unlike the law in Harman, Amendment 4 and Senate Bill 7066 are a legitimate exercise of Florida’s power to set core voter qualifications. The reason these laws leave some felons disenfranchised—the justification for their continued disenfranchisement—is not their failure to pay a tax. It is instead Florida’s legitimate interest in restoring to the electorate only fully rehabilitated felons who have satisfied the demands of justice. Because the justification for the voting qualifications in Amendment 4 and Senate Bill 7066 is a constitutionally legitimate
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interest and not the failure to pay a tax, they satisfy the requirements of the Twenty-Fourth Amendment.
The dissenters support their argument against this interpretation with several pages of appeals to legislative history. See Jordan Dissent at 186–88. Even were we to assume that some recourse to legislative history is appropriate in the interpretation of the Twenty-Fourth Amendment—and we do not, see Scalia & Garner, Reading Law § 66, at 369—the committee reports, floor debates, and press statements from politicians cited by the dissenters would not be the best evidence. In fact, the legislative history supports an interpretation that gives the phrase “by reason of” in the Twenty-Fourth Amendment a different meaning than the phrase “on account of” in the other voting-rights amendments. The House Judiciary Committee considered several proposed versions of a poll-tax amendment, including two that used the same “on account of” language as the Fifteenth and Nineteenth Amendments. Abolition of Poll Tax in Federal Elections: Hearings Before Subcommittee No. 5 of the Committee on the Judiciary, 87th Cong. 1–5 (1962). But the language that the committee reported out, which was eventually presented to the states and ratified as the Twenty-Fourth Amendment, used the different “by reason of” construction. H.R. Rep. No. 1821, at 1–2 (1962). Giving different phrases different meanings makes all the more sense when it can be shown that the drafter considered and rejected consistent language.
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C. Florida Has Not Violated the Due Process Clause. Although the district court did not decide whether Florida’s reenfranchisement laws violate the Due Process Clause, part of its injunction cannot be justified by any of its other rulings. The district court declared Amendment 4 and Senate Bill 7066 unconstitutional as applied to felons who cannot determine the amount of their outstanding financial obligations with diligence, and it created a process under which felons could request an opinion from the Division of Elections stating their total amount of outstanding fines and restitution. The injunction allowed any felon who did not receive an answer within 21 days to register and vote, and it prohibited the defendants from causing or assisting in the prosecution of any persons who registered or voted under this process. The felons ask us to affirm these aspects of the injunction on the grounds that the relevant Florida laws are void for vagueness and deny them procedural due process. We first address the vagueness challenge. To register to vote in Florida, a person must affirm that he is not disqualified from voting because of a felony conviction. And it is a crime for a person to “willfully submit[] any false voter registration information,” Fla. Stat. § 104.011(2), or to “willfully vote[] at any election” “knowing he or she is not a qualified elector,” id. § 104.15. The felons argue these criminal laws are void for vagueness because Senate Bill 7066 makes it
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difficult or impossible for some felons to determine whether they are eligible to vote.
Under the Due Process Clause, a law is void for vagueness if it “fails to give ordinary people fair notice of the conduct it punishes” or is “so standardless that it invites arbitrary enforcement.” Johnson v. United States, 576 U.S. 591, 595 (2015). But a law “is not vague because it may at times be difficult to prove an incriminating fact.” FCC v. Fox Television Stations, Inc., 567 U.S. 239, 253 (2012). Instead, a law is vague when “it is unclear as to what fact must be proved.” Id. (emphasis added). And even laws that are “in some respects uncertain” may be upheld against a vagueness challenge if they contain a scienter requirement. United States v. Waymer, 55 F.3d 564, 568 (11th Cir. 1995); see also Gonzales v. Carhart, 550 U.S. 124, 149 (2007) (“The Court has made clear that scienter requirements alleviate vagueness concerns.”).
The challenged laws are not vague. Felons and law enforcement can discern from the relevant statutes exactly what conduct is prohibited: a felon may not vote or register to vote if he knows that he has failed to complete all terms of his criminal sentence. See Fla. Stat. §§ 104.011(2), 104.15, 98.0751(1)–(2). This clear standard, which includes a scienter requirement, provides fair notice to prospective voters and “limit[s] prosecutorial discretion.” Carhart, 550 U.S. at 150.
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The felons’ real complaint is that it is sometimes difficult to determine whether a felon has completed the financial terms of his sentence. They offer examples of felons who cannot locate their criminal judgments, cannot determine which financial obligations were imposed for felony as opposed to misdemeanor offenses, or do not know how much they have paid toward their financial obligations. But these concerns arise not from a vague law but from factual circumstances that sometimes make it difficult to determine whether an incriminating fact exists. See United States v. Williams, 553 U.S. 285, 306 (2008) (explaining that a law is not rendered vague by “the possibility that it will sometimes be difficult to determine” the existence of an incriminating fact). These difficulties in proving the facts that determine a felon’s eligibility to vote cast no doubt on the clarity of the requirement that felons neither register nor vote if they know they have not satisfied the financial obligations imposed in their sentences. Because there is no uncertainty about “what fact must be proved” to convict a defendant under these statutes, the laws are not vague. Fox, 567 U.S. at 253; see also Williams, 553 U.S. at 305–06.
The felons argue that the State’s “every dollar” policy makes the challenged laws vague, but that policy only narrows the scope of criminal liability. Cf. Ward v. Rock Against Racism, 491 U.S. 781, 795–96 (1989). The challenged laws forbid felons to register or vote if they know they have failed to complete their sentences.
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And the policy adopts one of the narrowest possible constructions of “failing to complete” a sentence. Under the policy, a felon fails to complete the financial terms of his sentence only if his total payments toward all obligations related to his sentence—even financing costs that accrue after sentencing—are less than the amount imposed in his sentence. This narrowing construction mitigates vagueness concerns instead of enhancing them: a felon cannot reasonably think he has “completed” his terms of sentence if the total amount he has paid toward all related obligations is less than the amount included in his sentence. And only felons in this category are ineligible to vote under the “every dollar” policy.
The dissenters insist that the law is vague because some felons will not be certain about their eligibility, and a “wrong guess . . . results in severe consequences,” possibly including “an arrest for a voting violation.” Jordan Dissent at 169 (internal quotation marks omitted). Never mind the fact that no felon who honestly believes he has completed the terms of his sentence commits a crime by registering and voting, see Fla. Stat. §§ 104.011(2), 104.15 (establishing scienter requirements for voting violations), and that at least 85,000 felons felt the law was clear enough for them to go ahead and register. The dissenters’ vagueness argument strains credulity.
The felons also argue that Florida has denied them procedural due process. See Mathews v. Eldridge, 424 U.S. 319, 332 (1976). They assert a liberty interest
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in the right to vote and argue that Florida has deprived them of that interest without adequate process. We may assume that the right to vote is a liberty interest protected by the Due Process Clause. But see Johnson v. Hood, 430 F.2d 610, 612 (5th Cir. 1970) (“[E]ven an improper denial of the right to vote for a candidate for a state office achieved by state action is not a denial of a right of property or liberty secured by the due process clause.” (internal quotation marks omitted) (alteration adopted)). Even so, this argument fails because any deprivation of that right was accomplished through the legislative process and the process for adopting a constitutional amendment, which provide more than adequate procedures for the adoption of generally applicable rules regarding voter qualifications.
In deciding what the Due Process Clause requires when the State deprives persons of life, liberty or property, the Supreme Court has long distinguished between legislative and adjudicative action. See, e.g., Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239 U.S. 441, 445–46 (1915). The State often deprives persons of liberty or property through legislative action—general laws that apply “to more than a few people.” Id. at 445; see also 75 Acres, LLC v. Miami-Dade County, 338 F.3d 1288, 1296 (11th Cir. 2003) (deeming an action legislative because it was “enacted by a legislative body” performing a “fundamentally legislative” function or, alternatively, was “generally applicable” and “prospective in nature”). When the State does so, the affected persons are not entitled to any
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process beyond that provided by the legislative process. Bi-Metallic, 239 U.S. at 445 (“General statutes within the state power are passed that affect the person or property of individuals, sometimes to the point of ruin, without giving them a chance to be heard. Their rights are protected in the only way that they can be in a complex society, by their power, immediate or remote, over those who make the rule.”); accord 75 Acres, 338 F.3d at 1294. In contrast, the Due Process Clause may require individual process when a State deprives persons of liberty or property through adjudicative actions—those that concern a “relatively small number of persons” who are “exceptionally affected, in each case upon individual grounds,” by the state action. Bi-Metallic, 239 U.S. at 446; see also 75 Acres, 338 F.3d at 1294. To determine the process due for adjudicative deprivations, courts apply the familiar balancing test of Mathews v. Eldridge, 424 U.S. 319.
The felons were deprived of the right to vote through legislative action, not adjudicative action. Under its Constitution, Florida deprives all felons of the right to vote upon conviction. See Fla. Const. art. VI, § 4(a). This constitutional provision is a law “of general applicability” that plainly qualifies as legislative action. See 75 Acres, 338 F.3d at 1296–97. And even if we accept the argument that Amendment 4 and Senate Bill 7066 deprive felons of the right to vote by conditioning reenfranchisement on the completion of all terms of sentence, those laws also qualify as legislative acts. See id. The legislative and constitutional-
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amendment processes gave the felons all the process they were due before Florida deprived them of the right to vote and conditioned the restoration of that right on completion of their sentences.
The felons complain that it is sometimes difficult to ascertain the facts that determine eligibility to vote under Amendment 4 and Senate Bill 7066, but this complaint is only another version of the vagueness argument we have already rejected. The Due Process Clause does not require States to provide individual process to help citizens learn the facts necessary to comply with laws of general application.
To avail themselves of the Mathews v. Eldridge framework, the felons were obliged to prove a deprivation of liberty based on adjudicative action. See 75 Acres, 338 F.3d at 1294. But the felons do not challenge any individual votereligibility determinations that could qualify as adjudicative action, so Mathews does not apply. And in any event, Florida provides registered voters with adequate process before an individual determination of ineligibility. Before being removed from the voter registration system, voters are entitled to predeprivation notice and a hearing. Fla. Stat. § 98.075(5), (7). And any voter who is dissatisfied with the result is entitled to de novo review of the removal decision in state court. Id. § 98.0755. These procedures provide more than adequate process to guard against erroneous ineligibility determinations. See Mathews, 424 U.S. at 333–35.
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The injunction the district court entered looks nothing like a remedy for a denial of due process. It does not require additional procedures for any existing adjudicative action that deprives felons of a liberty interest in voting. Instead, it creates an adjudicative process to aid felons in complying with nonvague laws of general application. States are certainly free to establish such a process—indeed, Florida has done so through its preregistration advisory-opinion process and accompanying immunity from criminal prosecution. But the notion that due process mandates this kind of procedure in the absence of any adjudicative action is unprecedented. The injunction did not remedy any denial of due process, so we cannot affirm it on that ground.
A fundamental confusion in this litigation has been the notion that the Due Process Clause somehow makes Florida responsible not only for giving felons notice of the standards that determine their eligibility to vote but also for locating and providing felons with the facts necessary to determine whether they have completed their financial terms of sentence. The Due Process Clause imposes no such obligation. States are constitutionally entitled to set legitimate voter qualifications through laws of general application and to require voters to comply with those laws through their own efforts. So long as a State provides adequate procedures to challenge individual determinations of ineligibility—as Florida does—due process requires nothing more.
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IV. CONCLUSION We REVERSE the judgment of the district court and VACATE the challenged portions of its injunction. We LIFT the stay of the cross-appeal, Case No. 20-12304, and DIRECT the Clerk to sever the cross-appeal, issue a briefing schedule for it, and assign a panel to resolve it.
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WILLIAM PRYOR, Chief Judge, joined by LAGOA, Circuit Judge, concurring: I write separately to explain a difficult truth about the nature of the judicial
role. Our dissenting colleagues predict that our decision will not be “viewed as kindly by history” as the voting-rights decisions of our heroic predecessors. Jordan Dissent at 189 (citing Jack Bass, Unlikely Heroes: The Dramatic Story of the Southern Judges Who Translated the Supreme Court’s Brown Decision Into a Revolution for Equality (1981)). But the “heroism” that the Constitution demands of judges—modeled so well by our predecessors—is that of “devotion to the rule of law and basic morality.” Patrick E. Higginbotham, Conceptual Rigor: A Cabin for the Rhetoric of Heroism, 59 Tex. L. Rev. 1329, 1332 (1981) (reviewing Bass, Unlikely Heroes, supra). As a distinguished colleague presciently warned decades ago, there is a “genuine risk” that later judges will “easily misunderstand” this lesson. Id. Our duty is not to reach the outcomes we think will please whoever comes to sit on the court of human history. The Constitution instead tasks us with “administering the rule of law in courts of limited jurisdiction,” id. at 1343, which means that we must respect the political decisions made by the people of Florida and their officials within the bounds of our Supreme Law, regardless of whether we agree with those decisions. And in the end, as our judicial oath acknowledges, we will answer for our work to the Judge who sits outside of human history.
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LAGOA, Circuit Judge, concurring: I concur fully with the majority opinion. There is nothing unconstitutional
about Florida’s reenfranchisement scheme. I write separately to express an additional reason why, in my judgment, heightened scrutiny does not apply here.
I. Since 1838, the Florida constitution has explicitly authorized felon disenfranchisement as a criminal sanction, see Fla. Const. art. VI, § 4 (1838), and Florida has had such a law on the books since 1845, see Act of Dec. 29, 1845, ch. 38, art. 2 § 3, 1845 Fla. Laws 77, 78. Florida continues to disenfranchise felons,1 and it is not alone in this respect—forty-seven other states and the District of Columbia also practice some form of felon disenfranchisement. See Jones v. Governor of Florida, 950 F.3d 795, 801 n.3 (11th Cir. 2020) (Jones I). In 1968, Florida took its first step toward reenfranchising felons. In November of that year, Florida voters approved by referendum Florida’s current constitution. Its enactment expanded the electorate in two ways. First, while the previous constitution “disenfranchised persons convicted of certain misdemeanors such as petty larceny, under the new 1968 [constitution], only those persons
1 The Supreme Court has upheld the constitutionality of such felon-disenfranchisement schemes against challenges brought under the Equal Protection Clause of the Fourteenth Amendment. In Richardson v. Ramirez, 418 U.S. 24 (1974), the Court—harmonizing the Amendment’s first and second sections—held that section two of the Fourteenth Amendment authorized an “affirmative sanction” of felon disenfranchisement. See id. at 41–55.
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convicted of felonies could be disenfranchised.” Johnson v. Governor of Florida, 405 F.3d 1214, 1221 (11th Cir. 2005) (en banc). Second, while none of Florida’s previous constitutions provided for the restoration of civil rights, the 1968 constitution provided a path for felons to restore their right to vote: executive clemency. See Fla. Const. art. IV, § 8(a) (1968).
Today, felons in Florida—including those with out-of-state and federal convictions—may petition the Clemency Board to have their civil rights restored after completing the carceral terms of their sentence. See Fla. Stat. § 940.05; Fla. R. Exec. Clem. 5. Notably, a felon is not required to finish paying his pecuniary obligations before applying for clemency. See Fla. R. Exec. Clem. 10; see also Johnson, 405 F.3d. at 1216 n.1.
Florida’s felon civil-rights-restoration scheme has survived numerous constitutional challenges. In 1969, a group of felons challenged on equal protection and due process grounds both the disenfranchisement and the reenfranchisement provisions of the 1968 constitution. See Beacham v. Braterman, 300 F. Supp. 182, 183 (S.D. Fla.), aff’d, 396 U.S. 12 (1969). A three-judge panel of the Southern District of Florida upheld the provisions at issue against both challenges, concluding—before the Supreme Court’s decision in Richardson—that felon disenfranchisement is authorized under the United States Constitution and that clemency, as part of the pardon power, is not subject to judicial control. Id. at 183–
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84. The Supreme Court summarily affirmed. Beacham v. Braterman, 396 U.S. 12 (1969).
In Johnson, a group of felons argued that the 1968 constitution was adopted with an invidious discriminatory motive in violation of the Equal Protection Clause and that the requirement that felons pay restitution before being granted clemency violated the Twenty-Fourth Amendment’s prohibition on poll taxes. 405 F.3d at 1216 n.1, 1217. The district court granted the State’s summary judgment motion on both counts, and this Court, sitting en banc, affirmed. Id. at 1217, 1235. We found no evidence that the 1968 Florida constitution was enacted with any racial bias. Id. at 1225. And we noted that the payment of restitution was not a prerequisite to applying for executive clemency. See id. at 1216 n.1.
Finally, in Hand v. Scott, 888 F.3d 1206 (11th Cir. 2018), a group of felons argued that the unfettered discretion the Florida Clemency Board exercised in its administration of the clemency process facially violated the Equal Protection Clause of the Fourteenth Amendment. Id. at 1207. While the issue was ultimately mooted before the merits were heard, we granted the State a stay pending appeal and concluded that the State was likely to prevail on the merits of the felons’ claim that the Clemency Board’s “broad discretion” to operate its “standardless” clemency process violated equal-protection principles. Id. at 1208–10.
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In short, Florida’s felon civil-rights-restoration process has, for fifty-two
years, provided felons a constitutionally permissible path to the restoration of their
civil rights, including the right to vote. On November 6, 2018, Florida voters2 passed the “Voting Rights Restoration
Act”—or “Amendment 4.” This ballot initiative further expanded felons’ access to
reenfranchisement by amending the Florida constitution as follows:
(a) No person convicted of a felony, or adjudicated in this or any other state to be mentally incompetent, shall be qualified to vote or hold office until restoration of civil rights or removal of disability. Except as provided in subsection (b) of this section, any disqualification from voting arising from a felony conviction shall terminate and voting rights shall be restored upon completion of all terms of sentence including parole or probation.
(b) No person convicted of murder or a felony sexual offense shall be qualified to vote until restoration of civil rights.
Fla. Const. art. VI, § 4(a)–(b) (amended 2018) (amended text in italics).
In May 2019, the Florida legislature passed Senate Bill 7066 (“SB-7066”),
Fla. Stat. § 98.0751, which implemented Amendment 4. As relevant here, SB-7066
did two things. First, it defined “[c]ompletion of all terms of sentence” to include
“any portion of a sentence that is contained in the four corners of the sentencing
document,” including: release from imprisonment; termination of probation, parole
2 The Florida constitution may be amended by referendum “if the proposed amendment or revision is approved by vote of at least sixty percent of the electors voting on the measure.” Fla. Const. art. XI, § 5(e).
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or community control; fulfillment of any additional terms ordered by the court; and
payment of all restitution to victims and “fines or fees ordered by the court as a part
of the sentence or that are ordered by the court as a condition of any form of
supervision.” Fla. Stat. § 98.0751(2)(a).
Second, it established how the financial obligations could be completed:
Financial obligations required under sub-subparagraph a. or subsubparagraph b. are considered completed in the following manner or in any combination thereof:
(I) Actual payment of the obligation in full.
(II) Upon the payee’s approval, either through appearance in open court or through the production of a notarized consent by the payee, the termination by the court of any financial obligation to a payee, including, but not limited to, a victim, or the court.
(III) Completion of all community service hours, if the court, unless otherwise prohibited by law or the State Constitution, converts the financial obligation to community service.
A term required to be completed in accordance with this paragraph shall be deemed completed if the court modifies the original sentencing order to no longer require completion of such term. The requirement to pay any financial obligation specified in this paragraph is not deemed completed upon conversion to a civil lien.
Id. § 98.0751(2)(a)5.e.3
In this way, then, in implementing Amendment 4, SB-7066 provides felons
four new avenues—in addition to the existing executive clemency process—to
3 Florida Statute § 98.0752(2)(a)5.d. sets forth the parameters for the judicial modification established in the last paragraph of § 98.0752(2)(a)5.e.
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restore their right to vote upon “completion of all terms of sentence”: (1) actual
payment of their financial obligations; (2) receipt of a payee’s termination of those
financial obligations; (3) conversion of any financial obligations to community
service hours and subsequent completion of those hours; and (4) judicial
modification of the original sentencing order. See id. § 98.0751.
II.
The core dispute in this case is whether Florida’s felon reenfranchisement
scheme, which does not consider a felon’s ability to pay his legal financial
obligations (“LFOs”), should be subject to some form of heightened scrutiny or mere
rational basis review. I agree that heightened scrutiny is inappropriate for the
reasons laid out in the majority opinion. In my judgment, heightened scrutiny is also
inappropriate because Florida provides indigent felons alternative avenues to attain
reenfranchisement.
A.
As the Supreme Court has directed, we must, in the equal protection context:
decide, first, whether [the law] operates to the disadvantage of some suspect class or impinges upon a fundamental right explicitly or implicitly protected by the Constitution, thereby requiring strict judicial scrutiny. . . . If [it does] not, the [law] must still be examined to determine whether it rationally furthers some legitimate, articulated state purpose and therefore does not constitute an invidious discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment.
San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 17 (1973).
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The first question—is there a fundamental right involved—has been addressed already: felons who have been disenfranchised have no fundamental right to vote. Indeed, this finding was at the core of the Supreme Court’s decision in Richardson. There, the Court said that, consistent with the Constitution, states may strip—even permanently—the right of felons to participate in the franchise. Richardson, 418 U.S. at 54 (“As we have seen, however, the exclusion of felons from the vote has an affirmative sanction in § 2 of the Fourteenth Amendment, a sanction which was not present in the case of the other restrictions on the franchise which were invalidated in the cases on which respondents rely.”).
Consistent with that principle, we already have applied rational basis review to felon reenfranchisement schemes. See Shepherd v. Trevino, 575 F.2d 1110, 1114– 15 (5th Cir. 1978).4 In Trevino, we examined a Texas reenfranchisement scheme that allowed for discretionary reenfranchisement of those convicted in state court but had no analogous mechanism for the reenfranchisement of felons convicted in federal court. Id. at 1111. We had no trouble concluding that only rational basis review applied (and thus, necessarily, that felons had no fundamental right to vote). Id. at 1114–15 (“Therefore, we conclude that selective disenfranchisement or
4 In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted all Fifth Circuit decisions issued before October 1, 1981, as binding precedent.
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reenfranchisement of convicted felons must pass the standard level of scrutiny applied to state laws allegedly violating the equal protection clause. Such laws must bear a rational relationship to the achieving of a legitimate state interest.”).
Every court to have analyzed the issue has reached the same conclusion: felons do not have a fundamental right to vote. See Harvey v. Brewer, 605 F.3d 1067, 1079 (9th Cir. 2010) (O’Connor, J.) (“[Felons] cannot complain about their loss of a fundamental right to vote because felon disenfranchisement is explicitly permitted under the terms of Richardson. . . . Therefore, we do not apply strict scrutiny as we would if plaintiffs were complaining about the deprivation of a fundamental right.”); Johnson v. Bredesen, 624 F.3d 742, 746 (6th Cir. 2010) (“Having lost their voting rights, Plaintiffs lack any fundamental interest to assert. . . . ‘It is undisputed that a state may constitutionally disenfranchise convicted felons, and that the right of felons to vote is not fundamental.’” (quoting Wesley v. Collins, 791 F.2d 1255, 1261 (6th Cir. 1986))); Madison v. State, 163 P.3d 757, 767 (Wash. 2007) (“However, Richardson clearly distinguished the right that is at stake for felons from the Court’s previous holdings that citizens possess a fundamental right to vote.”); Owens v. Barnes, 711 F.2d 25, 27 (3d Cir. 1983) (“Plaintiff’s argument fails because the right of convicted felons to vote is not ‘fundamental.’ That was precisely the argument rejected in Richardson.”); Williams v. Taylor, 677 F.2d 510, 514 (5th Cir. 1982) (“Appellant’s interest in retaining his right to vote is
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constitutionally distinguishable from the ‘right to vote’ claims of individuals who are not felons. Section 2 of the Fourteenth Amendment allows a state to prohibit a felon from voting, and its classification of felons for voting restrictions must bear only a rational relation to the achieving of a legitimate state interest.” (citation omitted)).
The second question—is a suspect classification at issue—is also well settled: indigency is not a suspect class. Nor could it be. As Justice Harlan noted, “[e]very financial exaction which the State imposes on a uniform basis is more easily satisfied by the well-to-do than by the indigent.” Douglas v. California, 372 U.S. 353, 361 (1963) (Harlan, J., dissenting); accord Lewis v. Casey, 518 U.S. 343, 376 (1996) (Thomas, J., concurring). Under any view that indigency was a suspect class under the Fourteenth Amendment, “regulatory measures always considered to be constitutionally valid, such as sales taxes, state university tuition, and criminal penalties, would have to be struck down.” Lewis, 518 U.S. at 376 (Thomas, J., concurring) (citing Douglas, 372 U.S. at 361–62 (Harlan, J., dissenting)).
Applying this principle, the Supreme Court has held that discrimination against the indigent, without more, does not implicate a suspect classification—and thus does not trigger heightened scrutiny. See, e.g., Maher v. Roe, 432 U.S. 464, 471 (1977) (“In a sense, every denial of welfare to an indigent creates a wealth classification as compared to nonindigents who are able to pay for the desired goods
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or services. But this Court has never held that financial need alone identifies a suspect class for purposes of equal protection analysis.”); Rodriguez, 411 U.S. at 29 (noting that “this Court has never heretofore held that wealth discrimination alone provides an adequate basis for invoking strict scrutiny”).
Under the traditional principles of equal protection, it is clear that only rational basis review would apply to Florida’s reenfranchisement scheme. Because no suspect class or fundamental right is implicated, neither condition that triggers heightened scrutiny is present in this case. But this does not end the inquiry, as my colleagues in dissent argue that heightened scrutiny is required here because of a line of Supreme Court precedent usually associated with Bearden v. Georgia, 461 U.S. 660 (1983).
B. As explained in the majority opinion, the Bearden line of cases applies only in certain well-defined contexts: poverty-based imprisonment and access to judicial proceedings. See Maj. Op. at 15–21. Because this case does not present either of those situations, and because the Supreme Court has cautioned against extending the doctrine beyond them, see Lewis, 518 U.S. at 354, it is not applicable here.5
5 It should also be noted that each of the Bearden cases involved, through no more than two degrees of separation, a fundamental liberty interest. In the criminal cases where imprisonment was at issue, the fundamental liberty interest at issue is plain: “Freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary
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There is a reason the doctrine is so limited by subject matter—the Bearden
line of cases is a unique amalgamation of constitutional doctrines that does not fit
neatly within traditional principles of Fourteenth Amendment jurisprudence. The
Supreme Court has never made clear whether the doctrine rests on equal protection
or due process principles. Some decisions now associated with this line rested their
analyses explicitly on the Due Process Clause. See, e.g., Boddie, 401 U.S. at 382.
Others have relied entirely on the Equal Protection Clause. See, e.g., Williams v.
Illinois, 399 U.S. 235, 245 (1970). In Bearden, the Supreme Court stated that this
was intentional: “Due process and equal protection principles converge in the
Court’s analysis in these cases.” 461 U.S. at 665. “The equal protection concern
relates to the legitimacy of fencing out would-be appellants based solely on their
inability to pay core costs,” M.L.B. v. S.L.J., 519 U.S. 102, 120 (1996), while the
governmental action.” Foucha v. Louisiana, 504 U.S. 71, 80 (1992) (citing Youngberg v. Romeo, 457 U.S. 307, 316 (1982)). And in the civil cases, the Supreme Court has explicitly required the identification of a fundamental liberty interest to trigger Bearden scrutiny. Compare Boddie v. Connecticut, 401 U.S. 371, 374 (1971) (waiving filing fees, on due process grounds, for marriage dissolution because marriage and divorce are fundamental interests), with United States v. Kras, 409 U.S. 434, 445 (1973) (declining to waive filings fees required to secure discharge of bankruptcy because bankruptcy discharge entails no “fundamental interest”). Only one case— Mayer v. Chicago, 404 U.S. 189 (1971)—does not meet this criterion. In Mayer, the Court waived a filing fee for an indigent defendant who violated a statute that imposed only fines. Nevertheless, that case is distinguishable for the very reason identified in the majority opinion—it, at the very least, arose in the access-to-courts context. See Christopher v. Harbury, 536 U.S. 403, 412–15 (2002) (describing M.L.B. v. S.L.J., Griffin v. Illinois, Mayer and Boddie as “prior cases on denial of access to courts [that] have not extended over the entire range of claims that have been brought under that general rubric elsewhere”). And Justice Thomas has identified the peculiarity of the Mayer decision in this line of precedent. See M.L.B. v. S.L.J., 519 U.S. 102, 140–45 (1996) (Thomas, J., dissenting).
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“due process concern homes in on the essential fairness of the state-ordered proceedings anterior to adverse state action,” id., or, in other words, on the “fairness of relations between the criminal defendant and the State,” Bearden, 461 U.S. at 665. Both concerns are necessary for the application of Bearden scrutiny, but neither is alone sufficient. This is because indigency, as we have already seen, is not a suspect class. It is for this reason that Bearden cases have only appeared in the two contexts discussed in the majority opinion.
But even if we were to extend the doctrine to the felon-reenfranchisement context, I believe this case would fail to meet its requirements. In Rodriguez, the Supreme Court, in distinguishing that case from Bearden-type cases, stated that the
individuals, or groups of individuals, who constituted the class discriminated against in our prior [Bearden-type] cases shared two distinguishing characteristics: because of their impecunity they were completely unable to pay for some desired benefit, and as a consequence, they sustained an absolute deprivation of a meaningful opportunity to enjoy that benefit. 411 U.S. at 20. Neither of these conditions is satisfied here. On this point, it is worth noting that “actual payment” of LFOs is but one avenue available to the felon who seeks to have his voting rights restored in Florida. SB-7066 provides for three alternative avenues: termination of the obligation by the payee; conversion of LFOs to community service hours; and judicial modification of the original sentencing order. And the Florida constitution continues to provide felons the avenue of executive clemency. Thus, felons in Florida generally have five
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avenues available to them to secure reenfranchisement. Felons unable to pay their
LFOs have four avenues available if their convictions were in-state, while indigent
felons with out-of-state convictions or federal convictions have two.6
As such, indigent felons in Florida are not deprived of reenfranchisement
solely because of inability to pay.7 Nor do they suffer an absolute deprivation of a
meaningful opportunity to attain reenfranchisement. Some indigent felons will be
granted clemency. Some will have their LFOs converted to community service
hours. Some will have their original sentencing order modified by a court. And
some will have their debts terminated by the payee. All indigent felons have
alternative avenues available, and some will succeed in pursuing those avenues.
In dissent, my colleagues note that “regaining access to the ballot through
these methods is highly unlikely.” Jordan Dissent at 131 n.6. And our previous
panel decision similarly determined that the non-payment avenues to
6 Indigent felons with out-of-state convictions can seek executive clemency in Florida, see Fla. R. Exec. Clem. 5, 10B, or have their rights restored in the state of their conviction, see Schlenther v. Dep’t of State, Div. of Licensing, 743 So. 2d 536, 537 (Fla. Dist. Ct. App. 1998) (“Once another state restores the civil rights of one of its citizens whose rights had been lost because of a conviction in that state, they are restored and the State of Florida has no authority to suspend or restore them at that point. The matter is simply at an end.”). Indigent felons with federal convictions can seek executive clemency, see Fla. R. Exec. Clem. 5, 10B, or a presidential pardon, see U.S. Const. art. II, § 2, cl. 1.
7 The Bearden Court itself referred repeatedly to the fact that the indigents at issue were being punished “solely” for their indigency. See Bearden, 461 U.S. at 661, 664, 667, 674. Their status as indigents was not merely a substantial reason for their punishment, but the sole reason. See id. at 674 (“[T]his is no more than imprisoning a person solely because he lacks funds to pay the fine, a practice we condemned in Williams and Tate.” (emphasis added)).
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reenfranchisement “suffer from a common and basic infirmity—they are entirely discretionary in nature,” and, as such, none “is a viable stand-in for the automatic reenfranchisement enjoyed by felons” who can afford to pay. Jones I, 950 F.3d at 826. But neither the appellees, nor the previous panel decision, nor the dissenters identify any case in which a state provided indigents an alternative route to the attainment of a state-created benefit that the Supreme Court struck down as violative of the Bearden principle. And as the Supreme Court has said, “at least where wealth is involved, the Equal Protection Clause does not require absolute equality or precisely equal advantages.” Rodriguez, 411 U.S. at 24.
Moreover, the alternative treatment of indigents here is not occasioned due to their indigency, but rather “for some legitimate State interest.” Walker v. City of Calhoun, 901 F.3d 1245, 1260 (11th Cir. 2018) (“The sine qua non of a Bearden- or Rainwater-style claim, then, is that the State is treating the indigent and the nonindigent categorically differently. Only someone who can show that the indigent are being treated systematically worse ‘solely because of [their] lack of financial resources,’—and not for some legitimate State interest—will be able to make out such a claim.” (citation omitted) (quoting Bearden, 461 U.S. at 661)). As explained in the majority opinion, “[t]he people of Florida could rationally conclude that felons who have completed all terms of their sentences, including paying their fines, fees, costs, and restitution, are more likely to responsibly exercise the franchise than those
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who have not.” Maj. Op. at 25. When a felon pays his LFOs, this interest is furthered. But if a felon is unable to pay those LFOs, the alternative avenues available to that indigent felon ensure that he has satisfied some other form of “completion” of his full sentence before being granted access to the franchise. Because completion of a criminal sentence is undoubtedly a valid voter qualification, see Maj. Op. at 17, the people of Florida have a legitimate interest in enforcing compliance with that requirement.
Finally, the dissent’s suggestion that SB-7066’s alternatives to payment in full frustrate the intent of Florida’s voters when they approved Amendment 4 is contrary to the plain language of that constitutional amendment. First, Amendment 4 expressly conditions reenfranchisement “upon completion of all terms of sentence including parole and probation.” The dissent reads this language to include felons who are unable to pay their LFOs because they have “‘completed’ all terms of their sentences that they can.” But the constitutional language does not say that, and the dissent’s reading dilutes the mandated connection between the benefit— reenfranchisement—and its required condition—completion of all terms of sentence, including all financial obligations imposed as part of the criminal sentence. “Completion” means “the act of completing” or “the state of being completed.” Completion, Webster’s New World College Dictionary (3d ed. 1997); see also Completion, The American Heritage Dictionary of the English Language (4th ed.
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2000) (same). “Complete” means “fully carried out,” “concluded,” or “brought to an end.” Complete, Merriam-Webster’s Collegiate Dictionary (10th ed. 1993); see also Complete, The American Heritage Dictionary of the English Language (4th ed. 2000) (defining “complete” as “[h]aving come to an end; concluded” or “[t]o bring to a finish or an end”). To fully carry out or to conclude a financial obligation is to pay it in full. Thus, under the plain language of Amendment 4, a felon who is unable to pay his LFOs would not have completed all terms of his sentence and would be ineligible for reenfranchisement.
SB-7066, however, establishes additional methods for a felon to complete all the pecuniary terms of his sentence other than through payment of LFOs for purposes of reenfranchisement. A felon who has his LFOs converted to community service hours, which he then satisfies, or who has his original sentencing order modified to no longer require completion of his LFOs has completed that obligation. At any of these junctions, the felon’s pecuniary terms of sentence have been “fully carried out” and “brought to an end.”8
Second, by its very terms, Amendment 4 does not reenfranchise all, or even most, felons. In enacting Amendment 4, the people of Florida chose to reenfranchise
8 The felons’ and dissent’s invocation of the canon of constitutional avoidance to argue that “completion” means “completion to the best of one’s ability” is of no avail. That canon “has no application in the absence of statutory ambiguity.” United States v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483, 494 (2001). Here, there is no such ambiguity.
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only felons who were not convicted of murder or a felony sexual offense and who had satisfied an express condition—the “completion of all terms of [their] sentence.” Fla. Const. art. VI, § 4(a)–(b). To argue that the purpose of Amendment 4 was to reenfranchise a particular percentage of felons that this Court deems acceptable is to ignore the words adopted by the people of Florida when they amended their constitution.
I would thus hold that, even if Bearden’s heightened scrutiny were extended to the context of felon-reenfranchisement, application of that doctrine is inappropriate here. The due process concerns that animated that decision are wholly absent. And the equal protection component is inapplicable because Florida provides indigent felons alternative avenues to reenfranchisement apart from actual payment of LFOs. Because those alternative avenues further Florida’s legitimate interest in ensuring that only felons who have completed the terms of their sentence are granted access to the franchise pursuant to Amendment 4, no unconstitutional wealth discrimination is occasioned. The “equal protection of the laws [does not] deny a State the right to make classifications in law when such classifications are rooted in reason.” Griffin v. Illinois, 351 U.S. 12, 21 (1956) (Frankfurter, J., concurring).
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III.
My dissenting colleagues take issue with many aspects of Florida’s LFO
system, as well as Florida’s broader policy of funding its justice system through,
among other things, the assessment of criminal fees and costs (even though Florida is far from unique in that regard9). Much of their critique articulates a policy
preference that Florida’s voters and its legislature could and should have done more.
But as the Supreme Court has instructed, “[a] statute is not invalid under the
Constitution because it might have gone farther than it did[.]” Roschen v. Ward, 279
U.S. 337, 339 (1929). “[E]very reform that benefits some more than others may be
criticized for what it fails to accomplish,” Rodriguez, 411 U.S. at 39, so “reform may
take one step at a time,” Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 489
(1955).
Florida took its first step toward felon reenfranchisement in 1968—
reenfranchising all misdemeanants and establishing for the first time a discretionary,
executive-clemency process that could restore a felon’s civil rights. See Fla. Const.
9 A fifty-state survey conducted by the Brennan Center for Justice, the National Center for State Courts, and NPR shows that Florida is, in fact, firmly in the majority when it comes to the fees charged to felons. See Joseph Shapiro, State-by-State Court Fees, NPR (May 19, 2014), https://www.npr.org/2014/05/19/312455680/state-by-state-court-fees (citations omitted). Fortynine out of fifty States charge criminal defendants for electronic monitoring services. See id. Forty-four out of fifty States charge defendants for costs of supervision. See id. Forty-three States and the District of Columbia charge defendants for the use of a public defender. See id. And fortyone out of fifty States charge felons for room and board. See id. In total, thirty-one states (including Florida) charge defendants for all four types of costs. See id.
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art. IV, § 8(a) (1968). With the passage of Amendment 4, Florida took a second step, reenfranchising those felons who were not convicted of murder or a felony sexual offense and who had satisfied an express condition—the “completion of all terms of [their] sentence.” Our role in the constitutional system is simply to review that step for compliance with the Constitution, not to lengthen its stride. To proceed otherwise would violate the principles of federalism and separation of powers—the two structural guarantors of individual rights and liberty in our Constitution.
For the reasons set forth in the majority opinion and this concurrence, Florida’s felon reenfranchisement scheme is constitutional. It falls to the citizens of the State of Florida and their elected state legislators, not to federal judges, to make any additional changes to it.
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MARTIN, Circuit Judge, joined by WILSON, JORDAN, and JILL PRYOR, Circuit Judges, dissenting:
I am pleased to join Judge Jordan’s dissent in full. I write separately to elaborate on the due process problems that stem from Florida’s actions here and exist separately from the other constitutional deficiencies discussed in Judge Jordan’s dissent. In particular, I take issue with the position accepted by the majority that Florida’s constitutional amendment imposes no obligation, or even any responsibility, on the State to provide its citizens with the information required in order for them to register to vote. Maj. Op. at 59.
I. The District Court’s unchallenged findings of fact led it to observe that Florida’s implementation of Amendment 4 has been an “administrative train wreck.” Jones v. DeSantis (“Jones II”), ___ F. Supp. 3d ___, 2020 WL 2618062, at *34 (N.D. Fla. May 24, 2020). The majority breezes over the infirmities of the process. But I cannot so easily condone a system that is projected to take upwards of six years simply to tell citizens whether they are eligible to vote; that demands of those citizens information based on a legal fiction (of its own making) known as the “every-dollar” method; and which ultimately throws up its hands and denies citizens their ability to vote because the State can’t figure out the outstanding
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balances it is requiring those citizens to pay. This system does not comport with due process of law.
A. When analyzing a claim for procedural due process, the first question we must ask is whether the plaintiffs have established the deprivation of a constitutionally protected liberty or property interest. See, e.g., Woods v. Comm’r, Ala. Dep’t of Corr., 951 F.3d 1288, 1293 (11th Cir. 2020). The Plaintiffs here have clearly established such a protected interest. All agree that the right to vote is a fundamental right protected by the Fourteenth Amendment. See, e.g., Reynolds v. Sims, 377 U.S. 533, 561–62, 84 S. Ct. 1362, 1381 (1964) (“Undoubtedly, the right of suffrage is a fundamental matter in a free and democratic society.”). It is true, of course, that despite its fundamental status, the right to vote may be abridged or altogether withheld by the State. This is the holding of Richardson v. Ramirez, 418 U.S. 24, 94 S. Ct. 2655 (1974), in which the Supreme Court held that the Fourteenth Amendment condones felon disenfranchisement. Id. at 54–56, 94 S. Ct. at 2671–72. But Richardson does not tell us what a State may do once the State Legislature—or, in this case, the people—adopts a scheme to restore the fundamental right to vote to its ex-felons.
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Once a State promises its citizens restoration of their right to vote based on defined, objective criteria, it has created a due-process interest. This seems obvious based on a few distinct, though related, principles of law. The first is the general idea that “a State creates a protected liberty interest by placing substantive limitations on official discretion.” Olim v. Wakinekona, 461 U.S. 238, 249, 103 S. Ct. 1741, 1747 (1983). Relevant examples abound. For instance, in Kapps v. Wing, 404 F.3d 105 (2d Cir. 2005), the Second Circuit held that New York created a property interest in low-income energy benefits when it adopted a “statutory framework[]” that “set[] fixed eligibility criteria” for those benefits. Id. at 114. Also, the Sixth Circuit, in Jasinski v. Tyler, 729 F.3d 531 (6th Cir. 2013), found a due-process interest created by the State’s filing of a child-protection petition under Michigan’s Child Protection Law. Id. at 541–44. This was so because the relevant statute mandated the filing of a petition when fixed “substantive predicates” were met, and because the outcome of the petition could not be altered by official discretion. Id. at 543–44. The lesson from this body of law is that when a State promises its citizens an entitlement based upon the satisfaction of objective criteria, it creates a due process right for those citizens. Florida did just that, here.
Second, the fundamental nature of the right to vote matters. It has been a generally accepted principle for over 50 years “that the right to vote is one of the
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fundamental personal rights included within the concept of liberty as protected by the due process clause.” United States v. Texas, 252 F. Supp. 234, 250 (W.D. Tex.), aff’d per curiam, 384 U.S. 155, 86 S. Ct. 1383 (1966). The right to vote becomes a nullity once people were barred from ever getting on the voter rolls. Thus, States cannot prevent eligible citizens from registering to vote without giving them due process of law. See Hall v. Louisiana, 108 F. Supp. 3d 419, 438 (M.D. La. 2015) (holding no due process violation in part because the plaintiffs “did not encounter any problems registering to vote”), aff’d, 884 F.3d 546 (5th Cir. 2018); see also Bell v. Marinko, 235 F. Supp. 2d 772, 777–78 (N.D. Ohio 2002) (recognizing that the deprivation of voter registration implicates the fundamental right to vote). Florida has, in effect, done just that here. Its Constitution now promises these citizens the right to vote upon completion of their sentences. The people to whom this promise has been made have a constitutional interest in being allowed, to the fullest of their abilities, to exercise that right.
We know, as the Supreme Court has told us, that Florida could have withheld the franchise from people with felony convictions for all eternity. But once 65% of the people of Florida decided that these returning citizens would be allowed to exercise their right to vote upon “completion of all terms of sentence,” see Jones II, 2020 WL 2618062, at *3, and the Florida Legislature set objective
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criteria for what it means to “complet[e] all terms of sentence,” a due-process interest was born.
B. The State, for what it is worth, does not seem to dispute that upon the adoption of Amendment 4 and SB-7066, it created a due-process interest. Instead, the State says its implementation of Amendment 4 does not “deny” the due-process interest at stake. As the State tells it, the only time any interest in the right to vote was implicated was upon a returning citizen’s original conviction. However, the State confuses the right to enfranchisement with the right to reenfranchisement. Deprivation of enfranchisement was lawfully done upon conviction. But deprivation of the right to reenfranchisement occurs when a returning citizen is stymied in his efforts to vote because he does not know when or how he can complete all terms of his sentence. That is what the Plaintiffs allege happened here, and what they proved in the District Court.
II. We have thus far established that the State deprives returning citizens of a due-process interest in the right to reenfranchisement when it deprives them of the information necessary to exercise that right. Note that this principle does not turn on returning citizens’ ability to pay or whether their outstanding legal financial obligations (“LFO”) balance consists solely of court costs and fees. Of course, if
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the majority had agreed that the State’s implementation of Amendment 4 violated
the Equal Protection Clause or the Twenty-Fourth Amendment, those
considerations would be relevant. My point here is that the Plaintiffs’ due-process
claim should proceed no matter what, albeit in a slightly more limited fashion than
if they had also succeeded on their other constitutional claims.
Having established allegations amounting to the deprivation of a due-process
interest in reenfranchisement, I next examine whether the State’s process is, in fact,
inadequate.1 Whether the State-provided process is constitutionally adequate
requires balancing “(A) the private interest affected; (B) the risk of erroneous
deprivation of that interest through the procedures used; and (C) the governmental
interest at stake.” Nelson v. Colorado, 581 U.S. ___, 137 S. Ct. 1249, 1255 (2017)
(citing Mathews v. Eldridge, 424 U.S. at 335, 96 S. Ct. at 903).
1 For the reasons expressed in Judge Jordan’s dissent, the majority is mistaken in its framing of the due process question as one concerning a legislative, rather than adjudicative, action. The Plaintiffs do not say Amendment 4, SB-7066, or the Florida constitutional provision that strips individuals of the right to vote upon a felony conviction, see Fla. Const. art. VI, § 4(a), were enacted without due process of law. This alone makes the majority’s reliance on Bi-Metallic Investment Co. v. State Board of Equalization, 239 U.S. 441, 36 S. Ct. 141 (1915), misguided. The majority also focuses exclusively on the removal of people from voter rolls in its analysis under Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893 (1976). However, I view the scope of the due process interest here to be much broader. People are deprived of a protected due process interest when they cannot register to vote because they lack reliable information about their outstanding balances. People are likewise deprived of a protected due process interest when they don’t vote for fear of criminal prosecution while they wait for the Division of Elections to review their voter registrations—a process that apparently takes years to complete. Meanwhile, elections will come and go. Because the Division’s determinations are necessarily individualized and factspecific, Florida’s voter reenfranchisement scheme is one for which “persons [are] . . . exceptionally affected, in each case upon individual grounds” and entitled to due process. See BiMetallic, 239 U.S. at 446, 36 S. Ct. at 142–43. I reject the majority’s conclusion to the contrary.
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A. Returning citizens have a strong interest in the right to reenfranchisement. See Ga. Muslim Voter Project v. Kemp, 918 F.3d 1262, 1270 (11th Cir. 2019) (Jill Pryor, J., concurring) (stating that interests that “implicate[] the right to vote” are “substantial” (quotation marks omitted)). Florida’s only argument to the contrary is that other citizens—those who are currently able to exercise their right to vote— have a stronger interest at stake than returning citizens. As a result, Florida makes what I view as the wacky argument that these other citizens’ right to vote will be “dilut[ed]” if we recognize returning citizens’ interest in reenfranchisement. Reply Br. of Appellant at 26. The language the State cites in support of its “dilution” proposition comes from Reynolds, in which the Supreme Court held that “[r]acially based gerrymandering” and “the conducting of white primaries” deny “the right of suffrage” by “debasement or dilution.” 377 U.S. at 555, 84 S. Ct. at 1378. Reynolds simply reaffirmed the one person, one vote principle, and in no way supports the idea that returning citizens’ interest in voting is somehow weaker than the interest of anyone else.
B. In order to register, returning citizens must know they have no outstanding LFOs. Navigating this process implicates three distinct administrative concerns: (1) determining the original LFO obligation; (2) determining the amount that has
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been paid; and (3) processing the voter registration. Based on Judge Hinkle’s undisputed factual findings, all three steps of this process are rife with irrationality and ineptitude. Thus, the risk of erroneous deprivation—that is, a returning citizen who should be able to register to vote being waylaid in those efforts—is high.
1. First, the State’s inability to determine the amount of disqualifying LFOs imposed creates a risk of erroneous deprivation. As Judge Hinkle found,2 “many felons do not know, and some have no way to find out, the amount of LFOs included in a judgment.” Jones II, 2020 WL 2618062, at *16. For instance, Dr. Traci Burch, an expert for the Plaintiffs, testified about her efforts “to obtain information on 153 randomly selected felons.” Id. at *17. Judge Hinkle credited Dr. Burch’s testimony that information about original LFO obligations was hard to track down and, when it was possible to obtain, “there were inconsistencies in the available information for all but 3 of the 153 individuals.” Id. Even if Florida were correct that felons convicted in state court “can [easily] access their sentencing records directly through the County Clerks’ office,” Br. of Appellant at 54, further complications arise. For one, “[m]any counties charge a fee for a copy of a judgment,” which Judge Hinkle found many felons cannot
2 The District Court’s findings of fact are, of course, reviewed for clear error. U.S. Commodity Futures Trading Comm’n v. S. Tr. Metals, Inc., 894 F.3d 1313, 1322 (11th Cir. 2018). And the State’s briefing does not argue that any of the facts relevant to this claim were erroneous.
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afford to pay. Jones II, 2020 WL 2618062, at *17. For another thing, older judgments can be hard, if not impossible, to find. See id. Finally, “[e]ven if a felon manages to obtain a copy of a judgment, the felon will not always be able to determine which financial obligations are subject to the pay-to-vote requirement.” Id.; see also id. at *18 (“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.”).
All these requirements lead to the conclusion that it “is sometimes easy, sometimes hard, sometimes impossible” for a returning citizen to figure out his original LFO obligation. See id. Without this information, these citizens can hardly be expected to know how much they have to pay off.
2. Second, even if a returning citizen is able to determine his original LFO obligation, then “[d]etermining the amount that has been paid on an LFO” is likewise “often impossible.” Id. at *18. The State, pointing to its advisory-opinion system for voter eligibility, says the Plaintiffs cannot complain about the inability to determine LFO obligations because, since the enactment of SB-7066, only about 30 members of the public have made inquiries of the Florida Department of State about “voter eligibility with regards to financial terms of sentence.” Br. of Appellant at 55. This is beside
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the point. Although the State offers the advisory opinions as a panacea, it explains in its briefing that these advisory opinions actually only give a returning citizen “a legal determination on whether he would violate the laws against false registration and fraudulent voting by registering and voting given the facts and circumstances attendant to his case.” Id. The Department of State’s current advisory-opinion process does not promise returning citizens accurate information about their outstanding LFOs.
And in any event, this record shows the precise amount of payments made is “sometimes easy, sometimes hard, sometimes impossible” for a returning citizen to determine. Id. at *21, *23. The District Court discussed a number of examples of returning citizens struggling mightily to calculate their outstanding LFO balance. One named plaintiff, Clifford Tyson, contacted the Hillsborough County Clerk of Court to help him determine his outstanding LFO balance. Id. at *20. The District Court recounted that it took the Clerk of Court’s “financial manager” and “several long-serving assistants” 12 to 15 hours to come up with an answer. Id. Even at the end of that painstaking process, nobody was able “to explain discrepancies in the records” that surfaced. Id.
Under the majority’s decision, it remains incumbent on the person seeking to vote to bring all relevant “facts and circumstances” to the State’s attention, including the amount of his outstanding LFOs. To the contrary, I believe the State
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has an obligation to give accurate information to its citizens about how much it believes they must still pay to discharge their obligations under SB-7066. This is particularly so, in light of the State’s idiosyncratic “every-dollar” method of calculating payment. Under this method, all payments made in relation to an LFO are to be counted toward the outstanding balance of a criminal sentence, even if a portion of the payment has in fact been allocated elsewhere in the payment process. See id. at *21. So it is the State’s position, adopted by the majority, that a returning citizen can qualify to vote if he has paid the amount assessed in his sentencing document, but still has outstanding LFOs if any portion of his payments were, say, pocketed by a debt collection company. As I understand it, this “everydollar” method is not the mode of accounting any local government uses for any purpose. This is likely because the calculation method was devised midway through this case, apparently as a litigation strategy, and seems completely divorced from how LFO remittances actually work. But, because no formal policy, rule, or statute in Florida provides for the tracking of “every dollar” paid, for many, this “fact” the State demands to know is simply unknowable. This result cannot comport with due process.
Take, for example, Betty Riddle, one of the named plaintiffs in this case. Ms. Riddle requested copies of her felony records from the Clerks of Court in the two counties of her convictions, which date between 1975 and 1988. Jones II,
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2020 WL 2618062, at *6. However, she was told the Clerks were unable to find records of the convictions. Id. Ms. Riddle believes she owes approximately $1,800 in connection with later convictions, but the Clerk’s records do not match those maintained by the Florida Department of Law Enforcement. Id. Even as a party to this litigation, Ms. Riddle does not know, and has been unable to find out, how much she must pay to vote. Id. This process has all the certainty of counting jellybeans in a jar. Under the majority’s holding, it is entirely consistent with due process that Ms. Riddle cannot access her right to vote, because she does not, and cannot, know how much she needs to pay, even if she could pay.
There is no reason to think Ms. Riddle’s situation is unique. For several of the named plaintiffs— Jeff Gruver, Emory Marquis Mitchell, Keith Ivey, Kristopher Wrench, Jermaine Miller, Clifford Tyson, Latoya A. Moreland, and Lee Hoffman—the District Court noted discrepancies in available records or lack of definitive information regarding what they owed. Id. at *6–9. And again, in a random sample of 153 individuals with felony convictions reviewed by a research team, all but three had inconsistencies in the available information regarding their LFOs. Id. at *17. People who make a bona fide effort to satisfy their LFOs may nevertheless face the risk of criminal prosecution if the records they relied on in tallying “every dollar” paid are inaccurate or do not exist. Florida’s
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reenfranchisement scheme, which demands potentially unknowable facts, does not comport with due process.
3. Then there is also the processing of voter registrations, another administrative quagmire. To be eligible to vote in Florida, one must submit a registration form. Simple enough. But the process that follows is anything but. If the county Supervisor of Elections deems the form complete on its face, then the Secretary of State’s Division of Elections takes up the task of deciding whether the person is real, and, if so, adds that person to the voting roll. In the meantime, and periodically for years thereafter, the Division of Elections reviews registrations for, among other things, disqualifying felony convictions. A person who is uncertain of her eligibility to vote—say, because she does not know whether she has satisfied her LFOs to the State’s satisfaction—may choose to wait for the Division of Elections to complete its review process. Then if the Elections Division finds that a person is disqualified for any reason, including unpaid LFOs, the Division is to notify the proper county Supervisor of Elections. Some Supervisors review the Division’s work for accuracy, but some do not. Then the Supervisors begin the process of removing people from the voter rolls. All of this review takes time. In light of the chaos created by the majority’s holding that LFOs must be satisfied according to the “every-dollar” method,
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countless scores of individuals will be uncertain of their eligibility to vote. At the
time of the trial, the Florida Division of Elections had identified more than 85,000
registered voters with felony convictions whose eligibility had to be screened. The
District Court made a finding of fact, unchallenged by the State, that it will take
until 2026 at the earliest, and possibly even into the 2030s, for the State to
complete its eligibility determinations. Id. at *24. Some registered voters are
undoubtedly eligible to vote. But again, uncertainty will cause some segment of
eligible voters not to vote, lest they risk criminal prosecution. This delay and
uncertainty attendant in Florida’s voter registration processing system also fails to satisfy due process.3
C.
Finally, I observe that the State has offered no countervailing interest to
justify the denial of procedures sufficient to permit the reenfranchisement granted
by Amendment 4. To be sure, “the Government’s interest, and hence that of the
3 The majority opinion says the 85,000 people who are waiting to be screened are “entitled to vote.” This statement is not consistent with the evidence as well as Florida’s litigation position in this case. The Division of Elections Director testified that she herself would not feel comfortable taking an oath that she was eligible to vote if she were in the shoes of a returning citizen who was unsure of the amount they owed. The wisdom reflected by her discomfort is demonstrated by at least two things. First, Florida argues to us here that it has an interest in avoiding any presumption that the people who have registered are entitled to vote. Also, the Florida legislature considered and rejected a bill that gave a safe harbor to protect from prosecution those who vote believing that they have paid their LFOs but were later shown to have amounts outstanding.
The facts from this record show it will take until at least 2026 to pass on the eligibility of the 85,000 citizens whose voter registration applications are currently pending.
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public, in conserving scarce fiscal and administrative resources is a factor that must be weighed.” Mathews, 424 U.S. at 348, 96 S. Ct. at 909. “At some point the benefit of an additional safeguard to the individual affected by the administrative action and to society in terms of increased assurance that the action is just, may be outweighed by the cost.” Id. But we are nowhere near that point. In fact, the State does not argue that the incremental increase in the allocation of resources to ensure accurate decisions about the eligibility of returning citizens to vote would be unduly burdensome. Nor, based on this record, could it. See Ga. Muslim Voter Project, 918 F.3d at 1272 (Jill Pryor, J., concurring) (rejecting a State’s arguments of substantial burden under Mathews where it failed to support its assertion). In any event, as I see it, the important interest in this case outweighs any cost considerations the State may have.
* * * Sixty-five percent of Florida voters conferred the right to reenfranchisement upon returning citizens once they completed all terms of their sentence. With its Constitution amended in this way, Florida gained an obligation to establish procedures sufficient to determine the eligibility of returning citizens to vote, and to notify them of their eligibility in a prompt and reliable manner. The majority’s decision to vacate the District Court’s injunction and reverse its holding on procedural due process grounds relieves the State of Florida of this obligation
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expected of it by its people. For this reason, as well as those articulated by Judge Jordan, I dissent from the majority’s decision.
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JORDAN, Circuit Judge, joined by WILSON, MARTIN, and JILL PRYOR, Circuit Judges, dissenting.
“Failure to pay court fines and fees should never result in the deprivation of fundamental rights, including the right to vote.” AMERICAN BAR ASSOCIATION, RESOLUTION: TEN GUIDELINES ON COURT FINES AND FEES, GUIDELINE 5 (AUG. 2018).
In 2018 Florida’s voters, by a 64.55% super-majority, enacted Amendment 4 to allow felons to vote “upon completion of all terms of sentence including parole or probation.” Since then, the Florida legislature has decreed, see Fla. Stat. § 98.0751, and the Florida Supreme Court has ruled, see Advisory Opinion to Governor re Implementation of Amendment 4, The Voting Restoration Amendment, 288 So. 3d 1070 (Fla. 2020), that Amendment 4 requires felons to satisfy legal financial obligations (“LFOs”) before being allowed to vote.
But if anyone thought that Florida really cared about collecting unpaid LFOs—whether for crime victims or for its own coffers—that pretense was laid bare at trial, which was held after we affirmed the district court’s preliminary injunction. See Jones v. Governor of Fla., 950 F.3d 795 (11th Cir. 2020) (“Jones I”). The district court concluded that Florida’s LFO requirement violates the Equal Protection Clause of the Fourteenth Amendment, under both heightened scrutiny and rational basis review. See Jones v. DeSantis, -- F. Supp. 3d --, 2020 WL 2618062, at *14– 26 (N.D. Fla. May 24, 2020) (“Jones II”). It also ruled that the LFO requirement violates the Due Process Clause and the Twenty-Fourth Amendment. See id. at *27–
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29, 36–37. And it issued a limited and tailored remedy in the form of an LFO advisory opinion process, a process Florida itself had suggested. See id. at *42–44.
The evidence showed, and the district court found, that since the passage of Amendment 4 Florida has demonstrated a “staggering inability to administer” its LFO requirement. See id. at *14. That is an understatement. Florida cannot tell felons—the great majority of whom are indigent—how much they owe, has not completed screening a single felon registrant for unpaid LFOs, has processed 0 out of 85,000 pending registrations of felons (that’s not a misprint—it really is 0), and has come up with conflicting (and uncodified) methods for determining how LFO payments by felons should be credited. See id. at *24. To demonstrate the magnitude of the problem, Florida has not even been able to tell the 17 named plaintiffs in this case what their outstanding LFOs are. See id. So felons who want to satisfy the LFO requirement are unable to do so, and will be prevented from voting in the 2020 elections and far beyond. Had Florida wanted to create a system to obstruct, impede, and impair the ability of felons to vote under Amendment 4, it could not have come up with a better one.
Incredibly, and sadly, the majority says that Florida has complied with the Constitution. So much is profoundly wrong with the majority opinion that it is difficult to know where to begin. But one must start somewhere, so I will first turn to the facts, those “stubborn things,” Campbell v. Fasken, 267 F.2d 792, 796 (5th
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Cir. 1959), which though proven at trial and unchallenged on appeal, are generally relegated to the dustbin in the majority opinion.
I The majority proceeds as though the reality on the ground does not matter, but the record tells a different story. After an eight-day bench trial, the district court issued a 125-page opinion containing the following findings of fact—none of which Florida challenges on appeal. 1. “[T]he overwhelming majority of felons who have not paid their LFOs in full, but who are otherwise eligible to vote, are genuinely unable to pay the required amount, and thus, under Florida’s pay-to-vote system, will be barred from voting solely because they lack sufficient funds.” Jones II, 2020 WL 2618062, at *16. This finding is supported by the testimony of Dr. Daniel A. Smith, which the district court credited in full. See id. at *16, n.82. For example, Dr. Smith testified that of the over one million people convicted of a qualifying felony in Florida who have otherwise completed the terms of their sentences, 77.4% owe some form of LFO. See Tr. at 60; D.E. 334-1 at ¶ 9. In the counties for which Dr. Smith had indigency data, about 70% of those felons who had completed their sentences (except for payment of LFOs) were represented by a public defender, which indicates that they are indigent. See Tr. at 73–78; D.E. 334-1 at ¶¶ 42, 46, 50. The Public Defender for Palm Beach County testified that about 80% of criminal defendants in felony cases are represented by court-appointed counsel at
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trial because of indigency. She also explained that the statewide data is similar to that in Palm Beach County. See Tr. at 279. The Chief Operating Officer of the Clerk of the Circuit Court for Hillsborough County similarly testified that 80% of criminal defendants in felony cases in that municipality are indigent and represented by courtappointed counsel. See id. at 624.
2. “[M]any felons do not know, and some have no way to find out, the amount of LFOs included in a judgment.” Jones II, 2020 WL 2618062, at *16. Under § 98.0751, which implements Amendment 4, the LFOs that a felon
must pay to vote “include only the amount specifically ordered by the court as part of the sentence and do not include any fines, fees, or costs that accrue after the date the obligation is ordered as a part of the sentence.” § 98.0751(2)(a)(5)(c). But sentencing documents vary by county, see D.E. 152-93 at 183-84, and do not consistently show which amounts were imposed at sentencing. See D.E. 360-47 at 9–12. The record is replete with examples of situations where the sentencing document does not clearly set out what a felon owes. See Jones II, 2020 WL 2618062, at *6–10 (recounting examples). For instance, Florida submitted a judgment for one of the plaintiffs, Jeff Gruver, that did not include any financial obligations. See id. at *6. But the record in Mr. Gruver’s case also includes a civil judgment for $801 dated 17 days after Mr. Gruver was sentenced. See id. It is unclear whether the criminal judgment included the same amount and was converted
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to a civil lien 17 days later, or whether no amount was included in his criminal
judgment at all. See id. Mr. Gruver said that with interest and collection fees, the
debt has grown to roughly $2,000. See id. As the district court stated: “One cannot
know, from the information in this record, whether any financial obligation was
included in the ‘four corners’ of Mr. Gruver’s criminal judgment.” Id.
The district court found that many felons do not know whether they are
required to pay LFOs for the following reasons:
• Few felons will know that they must obtain copies of their judgments to determine whether they owe LFOs.
• For those felons who do know that they need a copy of their judgment, few have copies of their judgments because many have served long terms in custody or decades have passed since their judgments were issued.
• Many counties charge a fee for a copy of a judgment, which many felons cannot afford to pay.
• For older felonies, a copy of the judgment may not be available at all or may be available only from barely legible microfilm or microfiche from barely accessible archives.
• Even if a felon has a copy of the judgment, it is not always clear which financial obligations are subject to the LFO requirement (e.g., if the judgment covers multiple offenses, including misdemeanors, and does not specify for which offense the fee is owed).
See id. at *16–17.
3. Even if a felon knows that he owes LFOs, “[d]etermining the amount that has been paid on an LFO presents an even greater difficulty” and “is often impossible.” Jones II, 2020 WL 2618062, at *18.
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One reason for this difficulty is that there is no single source that collects information on unpaid LFOs, making it very difficult for the state (and the felon) to determine how much is owed. The analysis prepared for the Florida Legislature confirmed this mess. See Florida Department of State, 2019 Agency Legislative Bill Analysis for SB 7086, D.E. 351-18 at 5 (“At this time, no single source exists that confirms for the Department or for the convicted felon that he or she has completed all terms of the sentence for every felony.”). Florida has made no attempts to solve this problem.1
In addition to failing to aggregate LFO information in one centralized place, Florida’s records contain substantial inconsistencies. See Jones II, 2020 WL 2618062, at *17, 19. As the district court explained, Dr. Traci R. Burch—a professor of political science working 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. See id. at *17. Dr. Burch’s team found “that information was often unavailable over the internet or by telephone and that, remarkably, there
1 As former and current election administrators have explained in their amicus brief, this state of affairs forces election administrators to “engage in a multi-step, individualized process to determine whether an individual voter has an outstanding felony-LFO,” and to “shoulder an impossible burden, requiring them to stretch budgets or divert staff to conduct research that is not within their expertise and for which they often lack access to necessary data[.]” Amicus Br. of Current and Former Election Administrators at 21, 24–25. That is why other states, such as Wisconsin, require its department of corrections to keep track of who is ineligible to vote and to maintain a list of people currently ineligible to vote on account of a conviction. See id. at 21.
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were inconsistencies in the available information for all but 3 of the 153 individuals.” Id. In other words, there were inconsistencies in the state’s records for 98% of the people in the sample. See id. at *19. The district court credited Dr. Burch’s testimony. See id. at *17, n.86. See also D.E. 360-47 at 9.
Dr. Burch’s expert report provides more detail on the discrepancies in Florida’s data, including that the Florida Department of Law Enforcement reports conflict with the clerks’ online data regarding LFOs in 79.6% of cases in the sample. See D.E. 360-47 at 9. Dr. Burch testified about other obstacles her research team faced in obtaining information on LFOs, such as that 40% of the 67 counties charged some kind of payment or processing fee to look at their databases, and 15% charged a fee even to access records such as sentencing documents. See Tr. at 164. She and her team struggled to obtain information over the phone because clerks were often unhelpful, and had difficulty obtaining information online because some websites were poorly designed, difficult to use, or inaccessible. See id. at 167–169. In 60% of cases, they could not even get through to clerks on the phone or clerks would not help them ascertain the amount due over the phone. See id. at 184–85.
Another problem is that restitution is usually payable only to the victim directly. See Jones II, 2020 WL 2618062, at *20. Florida has no record of restitution payments at all, except in the smaller number of cases when restitution is payable to or through the Clerk of Courts or the Department of Corrections. See id. The district
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court found that this information “may be unknowable”: the felon may have no record of amounts paid (especially if they were paid years or decades ago); individual victims may have died or moved to parts unknown; and corporate victims may have gone out of business or merged into other entities. See id.
4. In many cases, “probably most,” felons cannot pay their outstanding balance without being required to pay additional fees that were not included in their sentence. See Jones II, 2020 WL 2618062, at *20–23. If a felon sets up a payment schedule because he is unable to pay a judgment
all at once, many counties assess a $25 fee for setting up a payment plan. See id. at *18. And if a felon fails to pay his LFOs, his account may be turned over to a collection agency. See id. These collection agencies, in turn, routinely charge fees of up to 40% and remit to the county only the net amount remaining after deducting the fee. See id. County records often show only the net payment, not the amount retained by the collection agency. See id. And in some counties, online records do not distinguish between LFOs from the four corners of the sentencing documents and any later accrued fees. See Tr. at 133–34, 651, 943–45.
The district court also found that Florida has “adopted two completely inconsistent methods” for applying these additional payments to covered obligations. See Jones II, 2020 WL 2618062, at *18. This makes an intolerable situation even worse.
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At first, Florida argued that a felon should receive credit only for the amounts that it actually received from his payment (referred to by the district court as the “actual-balance method”). See id. Under this approach, for example, a defendant who paid $100 to a collection agency might find that only $60 of his payment went to satisfy the amount owed on his LFOs (as he would receive no credit for the $40 a collection agency charged and kept to cover its fees). This method leads to the felon often having to pay more than the LFO amount in his judgment to vote, as he must also pay applicable collection or processing fees. See id. at *20.
Then, in March of 2020—less than two months before trial—Florida “abruptly changed course,” adopting a different method which the district court called the “every-dollar method.” Id. at *21. Under this newly-minted approach, a felon only has to make payments that add up to the aggregate amount of the obligations included in the judgment, no matter the actual purpose for the payment. See id. So, if a felon pays $100 to a collection agency, the entire $100 will count to satisfy the LFO requirement—even if $40 is retained by the collection agency as a collection fee. Florida, however, has not codified this new method; “it is not set out in a statute or rule or even in a formal policy[.]” Id. at *22. So it is anyone’s guess whether it will last, or will be replaced by a third, fourth, or fifth method that conveniently suits Florida’s then-existing interests and prevents felons from figuring out their LFO obligations.
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Even on its own terms, Florida’s new approach has intrinsic problems. Because county records routinely show only the net payment that the county receives from collection agencies, it may be impossible to calculate the amount that felons paid under this approach. Significantly, the district court found that the every-dollar method undermines Florida’s main rationale for the LFO requirement—that a felon must satisfy his entire criminal sentence before being allowed to vote—because under this approach, most felons will not have to satisfy their judgment in full before regaining the right to vote. See id. at *22–23.
For example, as the district court noted, if a felon owed $100 in restitution, but had to pay a $4 fee to the Department of Corrections to process his full payment, under the actual-balance method he would have to pay $104 in total to be eligible to vote. See id. at *22. Under the every-dollar method, however, the felon would only have to pay $100 in total to be eligible to vote—even though the victim would only receive about $96 ($100 – the $4 fee). See id. Indeed, the Director of the Division of Elections admitted at trial that under the every-dollar method, the victim may sometimes receive $0 in restitution payments—even though restitution was ordered in the judgment—if the amount of payments made towards fees and surcharges equals or exceeds the amount of restitution ordered. See Tr. at 1359. So much for Florida’s asserted interest in the full payment of LFOs.
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Further highlighting the potential arbitrary results that may result from the every-dollar method, the district court asked the Director of the Division of Elections the following hypothetical at trial. Take an individual who has two felony convictions: one for which he owes $25 in LFOs, and another for which he owes $15 in LFOs. Assume that the felon paid $50 in total towards the first conviction— $25 for the LFOs in the judgment, plus another $25 for various fees and surcharges that accrued after sentencing—but only paid $10 toward the second conviction. What happens then? The Director testified that the felon would not be eligible to vote, as he would still owe LFOs for the second conviction. See id. at 1323. If those same convictions were charged in a single case, however, and the same payments were made, that felon would be eligible to vote—as the total amount paid would exceed the amount of LFOs owed. See id.
5. In the 18 months since Amendment 4 was adopted by Florida voters, Florida has not completed screening even a single registrant for unpaid LFOs, and it has processed 0 out of 85,000 pending registrations of felons. See Jones II, 2020 WL 2618062, at *24. To be eligible to vote in Florida, a person must submit a registration form.
See id. at *9. If the County Supervisor of Elections deems the form complete on its face, the Secretary of State’s Division of Elections determines, using personal identifying information, whether the person is real. See id. If so, the person is added to the voting roll, subject to later revocation if it turns out that he is ineligible. See id.
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The Division of Elections takes the laboring oar at that point, reviewing the registration for disqualifying felony convictions. See id. See also § 98.075(5) (“The department shall identify those registered voters who have been convicted of a felony. . .”); § 98.0751(3)(a) (“The department shall obtain and review information pursuant to s. 98.075(5) related to a person who registers to vote and make an initial determination on whether such information is credible and reliable regarding whether the person is eligible . . . ”). If the Division finds a disqualifying felony conviction, it notifies the proper County Supervisor of Elections of the voter’s potential ineligibility to be registered. See Jones II, 2020 WL 2618062, at *10. Upon receipt of the notice, the Supervisor sends the registrant a notice giving him 30 days to show eligibility. See id. See also § 98.075(7) (outlining procedures for removal from the voter rolls). The registrant may request a hearing before the Supervisor, and if unsuccessful may file a lawsuit in state court, but hearings are “extremely rare.” Jones II, 2020 WL 2618062, at *10.
The district court found that County Supervisors of Elections sometimes address felony convictions on their own, without awaiting notice from the Division of Elections that a registrant is ineligible. See id. But they do not have the resources to perform the bulk of the screening process. See id. Thus, there was testimony at trial that one County Supervisor had removed some voters due to outstanding LFOs, see Tr. at 927–29, even though the Division had not processed a single felon for
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unpaid LFOs. That County Supervisor testified that while his office would check for restitution payments if that data was available, they did not “go into the details” because “there is no database in the state of Florida to be able to check all the different court costs that might be outstanding.” Id. at 908–09, 912–14, 918–19. Although he said his office would check for information on LFOs with the county’s clerk of court or the Comprehensive Case Information System database, that system does not include records for out-of-state cases or federal cases. See id. at 920–21. He also acknowledged that he did not receive any guidance from the Division of Elections about how to implement the LFO requirement. See id. at 909–10, 928.
Another County Supervisor of Elections similarly testified that she was unaware of any reliable database that she or voters can rely on to assess outstanding LFOs. See id. at 483. She recounted that after the passage of § 98.0751, her office occasionally received questions from voters about their eligibility under the new law. See id. at 480–81. Her office initially tried to help voters determine their LFOs by contacting the clerk of court or the relevant collection agency, but often they were unable to get “a definitive answer” and “were just butting [their] heads against the wall.” Id. at 481–82. She explained that generally, after a new election law is passed, the Division of Elections writes a rule to “make sure that all 67 [Supervisors of Elections] are treating [their] voters basically in the same manner.” Id. at 474. But, she said, since the passage of § 98.0751, there has not been a new rule issued—
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or any guidance given—as to how to implement the LFO requirement. See id. at 474, 476. In other words, Florida has done nothing to address the LFO problem.
Moreover, the Division of Elections has not screened any registered felons for outstanding LFOs. Specifically, the district court found that “[a]s of the time of trial, the Division ha[d] 85,000 pending registrations of individuals with felony convictions—registrations in need of screening for murder and sexual offenses, for custody or supervision status, and for unpaid LFOs. In the 18 months since Amendment 4 was adopted, the Division has had some false starts but has completed its review of not a single registration.” Jones II, 2020 WL 2618062, at *24 (emphasis added).
The Division of Elections has not even begun screening for unpaid LFOs, except for the 17 named plaintiffs in this case, and inexplicably even those reviews had not been completed at the time of trial. See id. Indeed, the Director of the Division acknowledged that it was not currently implementing the LFO requirement, and admitted that the Division is still “trying to finalize” its “process in a way that can be understood and implemented.” Tr. at 1236, 1265–66.2
2 In an email dated August 29, 2019, the Director of the Division of Elections outlined some of the challenges Florida faces “in trying to determine financial obligations imposed by a sentencing document.” In that same email, the Director said: “My staff simply are not versed or professionally trained at this level to understand court documents to this level.” D.E. 153-4 at 1, 4–6. If Division employees are hopelessly lost, how can felons possibly hope to figure out their LFO status?
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The district court found that “even if the Division starts turning out work
today, and even if screening for LFOs doesn’t take longer than screening for
murders, sexual offenses, custody, and supervision,” the Division’s projected
screening rate—at best—would be complete in early 2026. See Jones II, 2020 WL
2618062, at *24. That is at least three elections (2020, 2022, 2024)—including two
presidential elections—away.
Amendment 4 and § 98.0751 significantly increased the workload on the
Division of Elections. In addition to screening for felonies, the Division now has to
address three new questions: whether a felony conviction is for murder or a sexual
offense, whether the individual is still in custody or supervision, and whether the
individual has unpaid LFOs. See id. The budget analysis for the Senate Bill that
became § 98.0751 therefore projected a need for 21 new employees to process the
increased workload. See id. But as the district court found, the Florida Legislature
has allocated no funds for new employees, and the Division has hired none. See id.
That is a pretty good (and damning) indication of Florida’s disdain for Amendment
4.
6. “It is likely that if the State’s pay-to-vote system remains in place, some citizens who are eligible to vote, based on the Constitution or even on the state’s own view of the law, will choose not to risk prosecution and thus will not vote.” Jones II, 2020 WL 2618062, at *25. In other words, the district court found that it is likely that the lack of clarity about LFO obligations will likely deter eligible felons from voting, out of fear that they will be prosecuted if they vote and then later find out that they were not in fact eligible.
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Under Florida law, making a false affirmation in connection with voting, as well as fraud in connection with voting, are criminal offenses. See Fla. Stat. §§ 104.011 (false affirmation in connection with voting) & 104.041 (fraud in connection with casting vote). Although the former requires a showing of willfulness, and the latter requires a showing of fraud, felons may not be aware of those requirements. In fact, the 2019 voter registration form includes a warning that “[i]t is a 3rd degree felony to submit false information,” and that “[m]aximum penalties are $5,000 and/or 5 years in prison,” without mentioning the statutory requirement of willfulness. See D.E. 343-3; D.E. 152-33.
Florida’s voter registration form requires registrants to sign an oath affirming under penalty of perjury that they are eligible to vote. See D.E. 343-3; D.E. 152-93 at 189; D.E. 167-3 at 2. Needless to say, it is particularly difficult for registrants to affirm their eligibility without being able to obtain accurate information about their LFO obligations. As the district court stated: “That the Director of the Division of Elections cannot say who is eligible makes clear that some voters also will not know.” Jones II, 2020 WL 2618062, at *25.
The Director of the Divisions testified that if she “were in the voter’s position, [she doesn’t] know that [she] would be swearing under oath if [she] wasn’t sure” about her eligibility to vote. See Tr. at 1381. She testified that to avoid this “challenge,” id., felons who are concerned about the risk of prosecution may request
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an LFO advisory opinion from the Division, and they will be immune from prosecution if they rely on the advisory opinion in good faith. See id. at 1206–07, 1214–16, 1315. See Fla. Stat. § 106.23(2) (setting forth the advisory opinion process). She could not, however, say how long it would take to get an advisory opinion. See Tr. at 1387–89.
The district court took Florida up on the Director’s suggestion. See Jones II, 2020 WL 2618062, at *37, 42. The injunction it crafted sets up an advisory opinion process, and allows an individual to go forward with registration and voting if the Division fails to provide an advisory opinion within 21 days. See id. at *43. It also prescribes a method for determining inability to pay. See id. The district court explained “that the State can condition voting on payment of fines and restitution that a person is able to pay but cannot condition voting on payment of amounts a person is unable to pay or on payment of taxes, even those labeled fees or costs.” Id. at *1. Thus, the injunction largely mirrors Florida’s own advisory opinion process and serves two purposes: (1) it provides a method for determining inability to pay; and (2) if a felon can pay, it requires the state to tell him how much he owes. See id. at *43.
7. “Fees and costs are imposed in all cases, with few if any exceptions. . . . Each type of fee or cost is authorized, indeed usually required, by statute. These are not traditional court costs of a kind usually awarded in favor of a prevailing litigant; they are instead a means of funding the government in general or specific government functions.” Jones II, 2020 WL 2618062, at *4.
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Florida imposes a flat $225 assessment in every felony case, $200 of which is used to fund the clerk’s office and $25 of which is remitted to the Florida Department of Revenue for deposit in the state’s general revenue fund. See id.; Fla. Stat. § 938.05(1)(a). There is also a flat $3 assessment in every case that is remitted to the Department of Revenue for further distribution in specified percentages for, among other things, a domestic violence program and a law-enforcement training fund. See Jones II, 2020 WL 2618062, at *4; Fla. Stat. § 938.01(1).
As the district court found, Florida has chosen to pay for its criminal-justice system in significant measure through fees routinely assessed against its criminal defendants. See Jones II, 2020 WL 2618062, at *28. See also Fla. Const., art. V, § 14 (providing that all funding for clerks of court must be obtained through fees and costs, with limited exceptions). The district court found that “[e]very criminal defendant who is convicted, and every criminal defendant who enters a no-contest plea of convenience or is otherwise not adjudged guilty but also not exonerated is ordered to pay such amounts.” Jones II, 2020 WL 2618062, at *28. For example, in one county, the fees total $668 for every defendant who is represented by a public defender and $548 for every defendant who is not, and more if multiple counts are charged. See id.
With these facts in mind, I turn to the plaintiffs’ equal protection, due process, and Twenty-Fourth Amendment claims.
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II In my view, we correctly ruled in Jones I, 950 F.3d at 817–25, that heightened scrutiny should apply to the plaintiffs’ equal protection claim. But even if heightened scrutiny does not apply, the district court properly concluded that Florida’s LFO scheme fails rational basis review. See Jones II, 2020 WL 2618062, at *15–26.
A We held in Jones I that “heightened scrutiny applies . . . because we are faced with a narrow exception to traditional rational basis review: the creation of a wealth classification that punishes those genuinely unable to pay fees, fines, and restitution more harshly than those able to pay—that is, it punishes more harshly solely on account of wealth—by withholding access to the ballot box.” Jones I, 950 F.3d at 809. I wholeheartedly agree.
1 The Supreme Court’s opinions in Griffin v. Illinois, 351 U.S. 12 (1956), Bearden v. Georgia, 461 U.S. 660 (1983), and their progeny establish that “the state may not treat criminal defendants more harshly on account of their poverty.” Jones I, 950 F.3d at 818. In Griffin, 351 U.S. at 16–19, the Supreme Court held that an Illinois rule requiring a criminal defendant to purchase a certified copy of the trial record to appeal his sentence—without any exception for the indigent—flouted due
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process and equal protection. Significantly, the Supreme Court came to this conclusion even though the right to an appeal in a criminal case is not constitutionally guaranteed. See id. at 18 (citing McKane v. Durston, 153 U.S. 684, 687–88 (1894)). In Bearden, 461 U.S. at 661–62, the Supreme Court held that the Fourteenth Amendment prohibits a state from revoking an indigent defendant’s probation for failing to pay a fine and restitution. The Court relied on Griffin and explained that “[d]ue process and equal protection principles converge in [its] analysis in these cases.” Id. at 665 (citing Griffin, 351 U.S. at 17). See also Williams v. Illinois, 399 U.S. 235, 241 (1970) (holding that a state cannot subject convicted defendants to a period of imprisonment beyond the statutory maximum solely because they are too poor to pay the fine imposed); Tate v. Short, 401 U.S. 395, 398 (1971) (holding that a state cannot convert a fine into a jail term solely because the defendant is indigent and cannot immediately pay the fine in full).
At times, the Supreme Court has characterized disenfranchisement as “a nonpenal exercise of the power to regulate the franchise.” Trop v. Dulles, 356 U.S. 86, 96–97 (1958) (plurality opinion). Florida acknowledges, however, that its disenfranchisement is punitive. See Appellants’ Initial En Banc Br. at 3 (“Persons convicted of a felony in Florida are automatically disenfranchised as part of the punishment for their crimes.”); id. at 4 (“[F]elon disenfranchisement, again, is a punishment for felony conviction.”). Thus, as we explained in Jones I, Florida—
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contrary to Griffin and Bearden—“has chosen to continue to punish those felons who are genuinely unable to pay fees, fines, and restitution on account of their indigency, while re-enfranchising all other similarly situated felons who can afford to pay.” See Jones I, 950 F.3d at 819. “Just like in Bearden and in Griffin, the fact that [Florida] originally was entitled to withhold access to the franchise from felons is immaterial; rather, heightened scrutiny is triggered when [it] alleviates punishment for some, but mandates that it continue for others, based solely on account of wealth.” Id.3
In Griffin and its progeny, “a financial fee imposed by the state was found to discriminate because it effectively prevented indigents from exercising important rights granted by the state to all citizens but conditioned upon a monetary payment.” Note, Discrimination Against the Poor and the Fourteenth Amendment, 81 Harv. L. Rev. 435, 435 (1967), cited with approval in Williams, 399 U.S. at 241 n.16. The Supreme Court has described the classes of persons discriminated against in these cases as having two distinguishing characteristics: “[B]ecause of their impecunity they were completely unable to pay for some desired benefit, and as a consequence, they sustained an absolute deprivation of a meaningful opportunity to enjoy that
3 The majority correctly notes that in Williams, the Supreme Court stated that courts may impose alternative sanctions, aside from imprisonment on defendants, who cannot satisfy the monetary terms of their sentences. See Maj. Op. at 19. But this does not permit a state to disproportionately punish an indigent felon—by denying him an important right—solely because of his indigency.
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benefit.” San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 20 (1973). Under this framework, heightened scrutiny applies here because the LFO requirement results in an absolute deprivation of the right to vote for felons in any elections that take place while they are indigent.
The majority tries to characterize Griffin and Bearden as two separate and limited exceptions to rational basis review for claims of wealth discrimination. See Maj. Op. at 18. It asserts that Bearden applies only when inability to pay is the sole justification for imprisonment, and that Griffin applies only when the state conditions access to certain judicial proceedings on the ability to pay. See id. at 18– 21. The majority, I believe, is mistaken on both fronts.
Griffin and Bearden are not two separate and discrete exceptions. In fact, Bearden relied on Griffin, and extended its rationale to a new context. See Bearden, 461 U.S. at 664 (“Griffin’s principle of ‘equal justice,’ which the Court applied there to strike down a state practice of granting appellate review only to persons able to afford a trial transcript, has been applied in numerous other contexts.”) (emphasis added). Bearden therefore “provides a doctrinal intervention for eliminating systems that block people from reenfranchisement due solely to an inability to pay economic sanctions.” Beth A. Colgan, Wealth-Based Penal Disenfranchisement, 72 Vand. L. Rev. 55, 143 (2019). And, as relevant here, the Supreme Court has repeatedly and consistently applied Griffin in other cases involving state-created
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rights and benefits. See, e.g., Douglas v. California, 372 U.S. 353, 355 (1963) (relying on Griffin to hold that states must appoint counsel to represent indigent defendants in appeals as of right under state law); Mayer v. Chicago, 404 U.S. 189, 194–97 (1971) (applying Griffin to indigent defendant who sought to obtain free transcripts to appeal his conviction on non-felony charges); Boddie v. Connecticut, 401 U.S. 371, 382 (1971) (relying, in part, on Griffin to hold that a state cannot make obtaining a divorce contingent on the ability to pay court fees and costs); M.L.B. v. S.L.J., 519 U.S. 102, 107 (1996) (holding under Griffin that a state may not “condition appeals from trial court decrees terminating parental rights on the affected parent’s ability to pay record preparation fees”).
The Supreme Court has also applied the Griffin equality principle to cases that do not involve access to the judicial process and criminal law. For example, the Supreme Court applied Griffin to the voting context in Harper v. Virginia Board of Elections, 383 U.S. 663, 668 (1966). In that case, the Supreme Court relied on Griffin to invalidate a Virginia poll tax. The Court held that a state “violates the Equal Protection Clause of the Fourteenth Amendment whenever it makes the affluence of the voter or payment of any fee an electoral standard.” Id. at 666. The Court explained: “To introduce wealth or payment of a fee as a measure of a voter’s qualifications is to introduce a capricious or irrelevant factor. The degree of the discrimination is irrelevant. In this context—that is, as a condition of obtaining a
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ballot—the requirement of fee paying causes an ‘invidious’ discrimination that runs afoul of the Equal Protection Clause.” Id. at 668 (citation omitted).
Because it applied Griffin to voting, Harper indicates that heightened scrutiny should apply here. Indeed, in McDonald v. Board of Election Commissioners of Chicago, 394 U.S. 802, 807 (1969), the Supreme Court, citing Harper and Douglas, again confirmed that when it comes to the franchise, “careful examination . . . is especially warranted where lines are drawn on the basis of wealth or race, two factors which would independently render a classification highly suspect and thereby demand a more exacting judicial scrutiny.” See also Bullock v. Carter, 405 U.S. 134, 144 (1972) (applying heightened scrutiny under Harper to evaluate a Texas law requiring candidates to pay a filing fee as a condition to having their name placed on the ballot); Lubin v. Panish, 415 U.S. 709, 718 (1974) (holding “that in the absence of reasonable alternative means of ballot access, a State may not, consistent with constitutional standards, require from an indigent candidate filing fees he cannot pay”). If there was any doubt on this point, the Supreme Court reiterated in M.L.B. that heightened scrutiny applies to wealth classifications in cases involving “[t]he basic right to participate in political processes as voters and candidates.” M.L.B., 519 U.S. at 124. That is the exact situation we have here.4
4 As a full court we have already applied Harper to felons and voting in an en banc case. In Johnson v. Governor of Florida, 405 F.3d 1214 (11th Cir. 2005) (en banc), felons challenged
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The majority seeks to avoid the application of Harper by asserting that, unlike
the poll tax in that case, the LFO requirement “do[es] not make affluence or the
payment of a fee an ‘electoral standard.’” Maj. Op. at 16. Instead, the majority
asserts, the LFO requirement makes completing all terms of a sentence an “electoral
standard,” which is “highly relevant to voter qualifications.” Id. To support its
contention that Harper does not apply because the restriction on voting is “directly
related to legitimate voter qualifications,” the majority relies on Gonzalez v. Arizona,
677 F.3d 383, 409 (9th Cir. 2012) (en banc), aff’d sub nom. Arizona v. Inter Tribunal
Council of Az., Inc., 570 U.S. 1 (2013), and Crawford v. Marion County Election
Board, 553 U.S. 181 (2008) (plurality opinion). See Maj. Op. at 16–18. I don’t see
how either case supports the majority’s position.
In Crawford, the Supreme Court addressed whether a state statute requiring
citizens voting in-person to present photo identification violated the Fourteenth
Amendment. See 553 U.S. at 185. The identification requirement did not apply to
absentee ballots submitted by mail, and the law permitted indigent voters to cast a
Florida’s then-existing disenfranchisement law. The law provided that a felon who completed his sentence could apply for clemency to have his civil rights restored. See id. at 1216 n.1. One of the plaintiffs’ claims was that the restoration scheme violated constitutional and statutory prohibitions against poll taxes. We recognized that “[a]ccess to the franchise cannot be made to depend on an individuals’ financial resources.” Id. (citing Harper, 383 U.S. at 668). We affirmed the district court’s grant of summary judgment for the defendants on these claims, but that was “[b]ecause Florida [did] not deny access to the restoration of the franchise based on ability to pay[.]” Id. “Under Florida Rules of Executive Clemency, . . . the right to vote can still be granted to felons who cannot afford to pay restitution.” Id.
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provisional ballot. See id. at 186. A plurality of the Court stated that, under Harper, any burden on voters “must be justified by relevant and legitimate state interests sufficiently weighty to justify the limitation.” Id. at 191 (citation and internal quotation marks omitted). In upholding the statute, the plurality explained that it served legitimate state interests—including preventing voter fraud and protecting public confidence in elections—and did not impose a substantial burden on voters. See id. at 191–200. Importantly, however, the plurality also said the following: “The fact that most voters already possess a valid driver’s license, or some other form of acceptable identification, would not save the statute under our reasoning in Harper, if the State required voters to pay a tax or a fee to obtain a new photo identification.” Id. at 198. That possibility was not a problem in Crawford because the state issued photo identification cards for free. See id. The plurality further noted that “the record says virtually nothing about the difficulties faced by . . . indigent voters,” so the impact the statute would have on that group was unclear. See id. at 201.
Similarly, in Gonzalez the Ninth Circuit upheld a state law that required voters to show identification to cast a ballot at the polls. See 677 F.3d at 408–10. It concluded that “[r]equiring voters to provide documents proving their identity is not an invidious classification based on impermissible standards of wealth or affluence, even if some individuals have to pay to obtain the documents,” because under
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Crawford, the benefits of the law were significant, and “the burden is minimal[.]” See id. at 409–410.
Here, in contrast, the LFO requirement is not an identification measure designed to prevent voter fraud or restore the integrity of the electoral process. And the LFOs at issue do not pose a “minimal” burden on felons who wish to vote. The record instead reflects, and the district court found, that hundreds of thousands of felons would be eligible to vote but for their inability to pay LFOs. See Jones II, 2020 WL 2618062, at *1 (“Florida has adopted a system under which nearly a million otherwise-eligible citizens will be allowed to vote only if they pay an amount of money.”). As in Harper, the LFO requirement makes “affluence” the electoral standard, even though “[v]oter qualifications have no relation to wealth[.]” Harper, 383 U.S. at 666. Given the importance of voting in our political system, Harper, Griffin, and Bearden call for heightened scrutiny. Cf. John Hart Ely, Democracy and Distrust 87 (1980) (advocating a “participation-oriented” and “representationreinforcing” approach to judicial review).
2 Heightened scrutiny also applies for another reason—the right to vote is indisputably fundamental. See, e.g., Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886) (voting “is regarded as a fundamental political right . . . preservative of all rights”); Reynolds v. Sims, 377 U.S. 533, 561–62 (1964) (“Undoubtedly, the right of suffrage
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is a fundamental matter in a free and democratic society.”). And even if voting is not fundamental for felons who are re-enfranchised, it is certainly a critically important right that demands a searching analysis.
The majority contends that felons do not have a fundamental right to vote because felon disenfranchisement is permitted under Richardson v. Ramirez, 418 U.S. 24 (1974). See Maj. Op. at 11–12. That contention is too simplistic, and “amounts to an analytical trick.” Ann Cammett, Shadow Citizens: Felony Disenfranchisement and the Criminalization of Debt, 117 Penn. St. L. Rev. 349, 396 (2012). Although Richardson interpreted § 2 of the Fourteenth Amendment to permit states to disenfranchise felons, see 418 U.S. at 54, it did not address what level of scrutiny would or should apply if a state chose to re-enfranchise felons but conditioned re-enfranchisement on their ability to pay LFOs. See id. at 56. Richardson cannot control an issue it did not confront (or even discuss). Cf. United States v. Maines, 20 F.3d 1102, 1104 (10th Cir. 1994) (referring to the right to vote as “fundamental” in the context of analyzing whether a felon’s civil rights have been restored under 18 U.S.C. § 921(a)(20)); United States v. Bost, 87 F.3d 1333, 1336 (D.C. Cir. 1996) (same).5
5 Three Justices of the Supreme Court have already indicated that they believe the right to vote here is fundamental. In her dissent from the denial of the plaintiffs’ application to vacate the stay we issued, Justice Sotomayor, joined by Justices Ginsburg and Kagan, stated that “[t]his case implicates the ‘fundamental political right’ to vote.” Raysor v. DeSantis, -- S. Ct. --, 2020 WL 4006868, at *1 (2020) (Sotomayor, J., dissenting) (quoting Purcell v. Gonzalez, 549 U.S. 1, 4 (2006)).
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As we explained in Jones I: “[T]he state’s ability to deprive someone of a
profoundly important interest does not change the nature of the right, nor whether it
is deserving of heightened scrutiny when access to it is made to depend on wealth.”
Jones I, 950 F.3d at 823. “To the same extent that felons are not entitled to vote, the
plaintiffs in Williams, Tate, and Bearden were no longer entitled to their liberty [due
to their convictions]. Nevertheless, because the interest in liberty is so important,
the [Supreme] Court held that the state could not rely on the plaintiffs’ wealth in
deciding whether to deprive them of liberty.” Id. at 822–823. In the words of Chief
Justice Alexander of the Washington Supreme Court:
Although freedom is a fundamental right, it is recognized that freedom can be taken away as punishment for a felony. However, once all of the assigned punishment has been imposed, except for the payment of financial obligations, failure to pay those financial obligations cannot be used to continue depriving felons of their freedom. Freedom, thus, remains a fundamental right. Just as freedom is a fundamental right, so is the right to vote. . . . [F]elons can be deprived of the right to vote, notwithstanding its fundamental nature, as punishment for a felony. However, voting remains a fundamental right, and when all other conditions of a sentence have been fulfilled, felons cannot be deprived further of their right to vote for failure to pay LFOs.
Madison v. State, 163 P.3d 757, 779–80 (Wash. 2007) (Alexander, C.J., dissenting)
(citations omitted).
Analytically, it helps to think of felons in states that have not used § 2 of the
Fourteenth Amendment to disenfranchise them. Given that § 2’s permission to
disenfranchise persons convicted of crimes is not self-executing, felons in these
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states retain a fundamental right to vote because they have never had the franchise taken away from them. Florida’s citizens, through Amendment 4, have restored a fundamental right that had been previously denied to felons through disenfranchisement. See Cherish M. Keller, Re-Enfranchisement Laws Provide Unequal Treatment: Ex-Felon Re-Enfranchisement and the Fourteenth Amendment, 81 Chi.-Kent L. Rev. 199, 215–16 (2006) (“[W]hen a state provides a mechanism by which ex-felons can regain the right to vote, then a fundamental right is at stake.”).
A long line of Supreme Court cases further establishes that, even when the right to vote is not constitutionally guaranteed—i.e., not fundamental—“once the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment.” Kramer v. Union Free Sch. Dist. No. 15, 395 U.S. 621, 629 (1969) (quoting Harper, 383 U.S. at 665). In Kramer, a New York law provided that certain school district residents could vote in an election for school board members only if they owned (or leased) taxable real property within the district, or were parents of children enrolled in the local public schools. See id. at 622. Even though elections for those positions were not constitutionally required, the Supreme Court invalidated the law under heightened scrutiny, explaining that “[t]he need for exacting judicial scrutiny of statutes distributing the franchise is undiminished simply because, under a different statutory
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scheme, the offices subject to election might have been filled through appointment.” Id. at 628–29. Once New York chose to provide citizens the right to elect school board members, it had to do so equally and constitutionally.
Cases similar to Kramer abound. See Cipriano v. Houma, 395 U.S. 701, 704 (1969) (“[I]f a challenged state statute grants the right to vote in a limited purpose election to some otherwise qualified voters and denies it to others, ‘the Court must determine whether the exclusions are necessary to promote a compelling state interest.’ . . . [N]o less showing that the exclusions are necessary to promote a compelling state interest is required merely because ‘the questions scheduled for the election need not have been submitted to the voters.’”) (quoting Kramer, 395 U.S. at 627, 629); McDonald, 394 U.S. at 807 (“[W]e have held that once the States grant the franchise, they must not do so in a discriminatory manner.”); Evans v. Cornman, 398 U.S. 419, 422 (1970) (“[T]here can be no doubt at this date that once the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment.”) (citations and internal quotation marks omitted); Hill v. Stone, 421 U.S. 289, 297 (1975) (“[A]ny classification restricting the franchise on grounds other than residence, age, and citizenship cannot stand unless the district or State can demonstrate that the classification serves a compelling state interest.”). So, having given certain felons
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the right to vote through Amendment 4, Florida must comply with the Fourteenth Amendment’s guarantee of equal protection.
Even if the right to vote were not fundamental in this context, heightened scrutiny would still apply under Griffin, as that case did not turn on whether the right to appeal a criminal conviction was constitutionally guaranteed. Indeed, in Griffin, the Supreme Court recognized that the state was not required to provide criminal defendants a right to appellate review of their convictions. See Griffin, 351 U.S. at 18 (citing McKane, 153 U.S. at 687–88). Yet the Court held that once a state grants such a right, it should not be permitted to “do so in a way that discriminates against some convicted defendants on account of their poverty.” Id. So too here.
The other cases that the majority relies on, see Maj. Op. at 12–13, are distinguishable because they do not concern the denial of the franchise to felons who are unable to pay LFOs. For instance, Shepherd v. Trevino, 575 F.2d 1110 (5th Cir. 1978), did not involve conditioning the restoration of felons’ voting rights on their ability to pay LFOs. Instead, the case addressed a Texas statute which provided a mechanism for the re-enfranchisement of convicted state felons who satisfactorily completed the terms of their probation, without providing a similar mechanism for the re-enfranchisement of successful federal probationers. See id. at 1111. The former Fifth Circuit declined to apply heightened scrutiny to this classification, explaining that selective re-enfranchisement of felons is permissible under
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Richardson. See id. at 1114–15. It also noted, however, that § 2 of the Fourteenth Amendment does not remove all equal protection considerations from state-created classifications denying the right to vote to some felons while granting it to others. See id. at 1114 (“No one would contend that section 2 permits a state to disenfranchise all felons and then reenfranchise only those who are, say, white. Nor can we believe that section 2 would permit a state to make a completely arbitrary distinction between groups of felons with respect to the right to vote.”).
Similarly, though Harvey v. Brewer, 605 F.3d 1067 (9th Cir. 2010), affirmed the denial of felons’ claim that a re-enfranchisement scheme violated equal protection under rational basis review, the Ninth Circuit noted that the “complaint did not allege that any of [the plaintiffs] were incapable of paying the remainder of the money owed under their sentences.” Id. at 1071. As Justice O’Connor, writing for the Harvey panel, put it: “[N]o plaintiff alleges that he is indigent, so to the extent that fact might affect the analysis, we explicitly do not address challenges based on an individual’s indigent status.” Id. at 1079. Harvey therefore does not speak to the indigency issue before us. Cf. Hayden v. Paterson, 594 F.3d 150, 154 (2d Cir. 2010) (analyzing a claim that racial animus motivated the adoption of New York’s felon disenfranchisement provisions); Owens v. Barnes, 711 F.2d 25, 26 (3d Cir. 1983) (evaluating claim that Pennsylvania’s election code violated equal protection by
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denying incarcerated convicted felons the right to vote, while permitting unincarcerated felons to vote).
The only case the majority cites that is truly in conflict with our decision in Jones I is Johnson v. Bredesen, 624 F.3d 742 (6th Cir. 2010). In Bredesen, a divided Sixth Circuit panel rejected an equal protection challenge to a Tennessee voter reenfranchisement statute which conditioned restoration of felons’ voting rights on the payment of court-ordered victim restitution and child support obligations. See id. at 746–50. For two reasons, I submit that the Sixth Circuit’s application of rational basis review is not persuasive. First, the Sixth Circuit relied on Richardson to conclude that no fundamental right was at stake following re-enfranchisement, see id. at 746, but as discussed above Richardson did not decide that issue. Second, the Sixth Circuit distinguished Griffin by stating that it “concerned fundamental interests[.]” Id. at 749. But the Supreme Court acknowledged in Griffin that the right to appellate review of criminal convictions was not constitutionally required or fundamental, and yet still applied heightened scrutiny. See 351 U.S. at 18.
I would apply heightened scrutiny, just as we did in Jones I, and conclude that Florida’s LFO scheme does not survive. See Jones I, 950 F.3d at 825–28. The Jones I panel’s analysis is exhaustive and compelling, and I do not repeat it at length here. But to summarize, “[t]he form heightened scrutiny took in Bearden was comprised of four considerations: (1) the nature of the individual interest affected; (2) the extent
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to which it is affected; (3) the rationality of the connection between legislative means
and purpose; and (4) the existence of alternative means for effectuating the purpose.”
Id. at 825 (citations and internal quotation marks admitted). Voting is an important
and weighty interest, even if not deemed fundamental in this context. See id. at 825–
26. That interest is “profoundly affected” here because the LFO requirement
completely denies indigent felons the right to vote, at least in any election that occurs
while they are indigent. See id. at 826. And, as I will discuss shortly, the LFO
requirement does not rationally serve any conceivable legitimate state interest, and
Florida has far better ways to collect felons’ debts. See id. at 826–27.6
6 As we explained in Jones I, indigent felons may terminate their LFOs (1) “[u]pon the payee’s approval,” (2) upon completing community service hours, if converted by the court, or (3) by a discretionary grant of clemency. See Jones I, 950 F.3d at 826; § 98.0751(2)(a)(5)(d)–(e). But regaining access to the ballot through these methods is highly unlikely. As for the first option, neither victims nor collection agencies are likely to agree to forgive felons’ debts. See Jones I, 950 F.3d at 826. Community service conversion is unavailable to felons whose debts have been converted to civil liens and for those with federal convictions, and it could take years to complete community service hours, during which time felons may miss many opportunities to vote. See id. And all three avenues “are entirely discretionary in nature,” whereas felons who are able to pay “enjoy near immediate, automatic re-enfranchisement as of right.” Id. The Public Defender for Miami-Dade County testified about some of these difficulties at trial, see Tr. at 378–81, 412, and the literature supports his testimony. See Carol Gonzalez, Is the Rising Trend of Voter Restoration Leading to Permanent Disenfranchisement of Felons? Florida Joins the Voter Restoration Trend, 44 Nova L. Rev. 195, 220 (2020) (“[T]he process of petitioning a judge to convert outstanding LFOs into community service was not laid out in the bill. As a result, many things are unclear; for instance, whether a lawyer will be needed to petition the judge in order to get the LFOs turned into community service.”). The concurrence suggests that these alternatives make Florida’s LFO scheme constitutional, see Lagoa Concurrence at 73–74, but the Supreme Court has told us that the state has the burden of showing that such alternatives are “effective” for the exercise of the right in question. See Mayer, 404 U.S. at 195. Florida has not made any factual showing of effectiveness here.
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B Florida contends that the equal protection claim fails because the plaintiffs cannot show that it purposefully discriminated against indigent felons. See Appellants’ Initial En Banc Br. at 14–19. The majority does not address this contention, but it is important to show how meritless it is. The Supreme Court expressly held in M.L.B. that such a showing of intent is not required to prevail on a wealth discrimination claim under Griffin. See M.L.B., 519 U.S. at 126–27. In M.L.B., the Supreme Court distinguished Washington v. Davis, 426 U.S. 229, 232 (1976), which involved an equal protection challenge to the requirement that individuals had to pass a written test to be hired as police officers in Washington, D.C. See id. Although a greater proportion of black test-takers failed the test than white test-takers, the Court concluded that this disproportionate impact, standing alone, could not prove unconstitutional racial discrimination. In this context, to establish an equal protection violation, the black test-takers had to show purposeful racial discrimination. See id. at 242. The Supreme Court explained in M.L.B. that cases like Griffin and Williams, unlike Davis, involve laws that are not “merely disproportionate in impact. Rather, they are wholly contingent on one’s ability to pay, and thus visit different consequences on two categories of persons.” M.L.B., 519 U.S. at 127 (internal quotation marks and alterations omitted). Because these laws “apply to all indigents and do not reach anyone outside that class,” the Court
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concluded that purposeful discrimination need not be shown. See id. See also Jones
I, 950 F.3d at 828 (“[T]he Supreme Court has never required proof of discriminatory intent in a wealth discrimination case[.]”) (citing cases).7
Here, as in M.L.B., Griffin, and Williams, the LFO requirement makes the
restoration of the right to vote contingent on a felon’s ability to pay. In other words,
it continues to disenfranchise all indigent felons, while restoring the right to vote to
felons who can pay. Under M.L.B., proof of discriminatory intent is simply not
required.
I also note that the Supreme Court has not required a showing of intentional
discrimination in other cases involving arbitrary discrimination in the
voting/election context. See, e.g., Bush v. Gore, 531 U.S. 98, 104–110 (2000)
(determining that Florida’s recount procedures conflicted with equal protection
without analyzing whether intentional discrimination had been shown); Harper, 383
U.S. at 666 (concluding that a state violates equal protection “whenever it makes the
affluence of the voter or payment of any fee an electoral standard” without
7 Florida disputes that the LFO requirement precludes all indigent felons from voting, while not reaching non-indigent felons, because a felon who can afford to pay LFOs but chooses not to also will not have his voting rights restored. See Appellants’ En Banc Reply Br. at 2. But the same argument could have been made in M.L.B., which involved a Mississippi requirement of paying record preparation fees to appeal an order terminating parental rights. See 519 U.S. at 106–07. In addition, there is no evidentiary support for Florida’s suggestion that non-indigent felons are choosing not to pay LFOs and then seeking to vote. Indeed, the record reflects that most felons are indigent, and the district court’s injunction requires evidence that the felon cannot pay. See Jones II, 2020 WL 2618062, at *45.
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addressing purposeful discrimination). See also Hunter v. Hamilton Cty. Bd. of Elections, 635 F.3d 219, 234 n.13 (6th Cir. 2011) (explaining that intentional discrimination need not be shown to establish an equal protection violation regarding an arbitrary method of counting provisional ballots because “a showing of intentional discrimination has not been required in these cases”). This case does not involve the inconsistent counting of ballots, but it does involve the arbitrary and “unguided differential treatment” of potential voters, see id. at 238, even among those felons seeking to pay their LFOs.
C Though I would review the LFO requirement under heightened scrutiny, my bottom-line position does not turn on what level of scrutiny applies. Even under rational basis review, the district court correctly held that the LFO requirement violates equal protection. See Jones II, 2020 WL 2618062, at *15–26.
1 As every student of constitutional law knows, the Supreme Court has not always applied rational basis review with the same level of “bite.” See, e.g., Laurence Tribe, American Constitutional Law § 16-5, at 999–1000 (1978); Jeffrey D. Jackson, Classical Rational Basis and the Right to be Free of Arbitrary Legislation, 14 Geo. J.L. & Pub. Pol’y 493, 508 (2016). The more important the interest at stake, the more demanding rational basis review becomes. Compare, e.g.,
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F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307, 313–15 (1993) (“In areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge[s] if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.”), with, e.g., Zobel v. Williams, 457 U.S. 55, 65 (1982) (holding that Alaska statutory scheme which distributed income derived from its natural resources based on the length of each citizen’s residence violated the equal protection clause under rational basis review because Alaska “show[ed] no valid state interests which are rationally served by the distinction it makes between citizens who established residence before 1959 and those who have become residents since then”).
The majority applies the most deferential form of rational basis review. See Maj. Op. at 22–30. But if heightened scrutiny does not apply under the GriffinBearden-Harper line of cases, the fact that voting rights are being denied due to indigency at least warrants a more exacting form of rational basis review. The right to vote—even if not considered fundamental for felons who are re-enfranchised—is certainly an important one in our democracy, and it should not be lumped together with other state-created benefits that lack similar institutional significance.
The majority also says—incorrectly I think—that an as-applied challenge is inappropriate under rational basis review. See Maj. Op. at 28–29. In Cleburne v.
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Cleburne Living Center, 473 U.S. 432, 446–50 (1985), the Supreme Court reviewed, under rational basis, a zoning ordinance that required a special use permit for the operation of a group home for the mentally disabled. It found the ordinance unconstitutional “as applied” in that case. See id. at 447 (stating that reviewing the zoning ordinance as applied “is the preferred course of adjudication since it enables courts to avoid making unnecessarily broad constitutional judgments”). The majority may not like Cleburne, but it is not for us to choose which Supreme Court cases we are bound by. “When dealing with binding vertical precedent, a court has no room to decide how much weight or value to give each case.” Bryan A. Garner et al., The Law of Judicial Precedent § 15, at 155 (2016).8
Reviewing statutes as applied to indigents, moreover, seems to be typical in wealth discrimination cases where due process and equal protection guarantees intersect. For instance, in Griffin, the Supreme Court evaluated whether a state statute requiring defendants to pay for transcripts needed for an appeal could be applied “so as to deny adequate appellate review to the poor while granting such review to all others.” See 351 U.S. at 13. It did not (as the majority would have us do here) ask whether a state may require payment for transcripts generally.
8 The majority says that Cleburne did not focus on the “particular disabled people involved in the appeal,” but on “the mentally retarded as a group.” Maj. Op. at 29. But here, similarly, the district court examined how the LFO requirement applies to indigents as a group and did not simply focus on the unique circumstances of the specific plaintiffs. Recall that the district court certified a subclass comprised of felons “who would be eligible to vote in Florida but for unpaid [LFOs] that [they] assert[ ] [they are] genuinely unable to pay.” D.E. 321 at 18.
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And Griffin is not an outlier. In other indigency cases the Supreme Court has not struck down statutes that require payment on their face; it has instead told states that in applying these requirements they must account for those who cannot pay. See Boddie, 401 U.S. at 372–73 (reviewing a challenge to state procedures requiring payment of fees and costs to bring an action for divorce “as applied” to the plaintiffs who were unable to pay the fees); Mayer, 404 U.S. at 195 (emphasizing that “the State must provide a full verbatim record where that is necessary to assure the indigent as effective an appeal would be available to the defendant with resources to pay his own way”) (emphasis added); M.L.B., 519 U.S. 107 (holding that the state “may not deny M.L.B., because of her poverty, appellate review of the sufficiency of the evidence on which the trial court found her unfit to remain a parent”) (emphasis added). The district court therefore did not err in reviewing the LFO requirement as applied to individuals who are unable to pay. See Jones II, 2020 WL 2618062, at *26.
In addition, we explained in Jones I that even if we do not evaluate the rationality of a statute “as applied” to the plaintiffs who were indigent, the focus of rational basis review is on the “typical” or “mine-run” member of the affected class. See Jones I, 950 F.3d at 814–17. That principle, rather than misstating rational basis precedent, comes directly from the Supreme Court’s decision in Califano v. Jobst, 434 U.S. 47, 55 (1977): “The broad legislative classification must be judged by
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reference to the characteristics typical of the affected classes rather than by focusing on selected, atypical examples.” See also Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 315–17 (1976) (discussed in Jones I, 950 F.3d at 814–815). And it picks up on Florida’s implicit concession in Jones I that the LFO scheme could fail rational basis review if there was “evidence that felons unable to pay their [LFOs] vastly outnumber those able to pay.” Appellants’ Initial Br. in Jones I at 29 (citing Jobst and Murgia).
The district court found “that the mine-run of felons affected by the pay-tovote requirement are genuinely unable to pay,” Jones II, 2020 WL 2618062, at *16, and Florida does not challenge this finding on appeal. Though the majority says a “substantial number” of felons being unable to pay LFOs does not make the scheme irrational, see Maj. Op. at 30, the district court found that “the overwhelming majority of felons who have not paid their LFOs in full, but who are otherwise eligible to vote, are genuinely unable to pay[.]” Jones II, 2020 WL 2618062, at *16 (emphasis added). How can a system that seeks to encourage felons to pay LFOs be rational if the vast majority are simply unable to pay?
2 Rational basis review is deferential to government action, but it is not “toothless.” Schweiker v. Wilson, 450 U.S. 221, 234 (1981). Under the rational basis standard, a law that distinguishes between different groups does not violate
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equal protection if “there is a rational relationship between the disparity of treatment and some legitimate governmental purpose.” Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 366–67 (2001). The rational basis test thus has two prongs: (1) the law must further a legitimate state interest; and (2) there must be “a rational relationship between the government’s objective and the means it has chosen to achieve it.” Leib v. Hillsborough Cty. Pub. Transp. Comm’n, 558 F.3d 1301, 1306 (11th Cir. 2009).
In its earliest equal protection cases applying rational basis review, the Supreme Court expounded on the second prong. For example, in Gulf, C. & S.F. Ry. Co. v. Ellis, 165 U.S. 150, 153 (1897), the Supreme Court reviewed an equal protection challenge to an act that required railroad companies to pay attorney’s fees if they lost, but did not award them attorney’s fees if they prevailed. The Supreme Court explained that if a state law creates a classification, it must be “one based upon some reasonable ground—some difference which bears a just and proper relation to the attempted classification—and is not a mere arbitrary selection.” Id. at 165–66. Thus, a state “may not say that all men beyond a certain age shall be alone thus subjected [to the payment of attorney’s fees], or all men possessed of a certain wealth,” as “[t]hese are distinctions which do not furnish any proper basis for the attempted classification.” Id. at 155 (emphasis added). See also Atchison, T. & S.F.R. Co. v. Matthews, 174 U.S. 96, 105 (1899) (“Is the classification or
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discrimination prescribed thereby purely arbitrary, or has it some basis in that which has a reasonable relation to the object sought to be accomplished?”).
Over the years, the Supreme Court has repeatedly emphasized that, even under rational basis review, there must be some reasonable relationship between the state’s goal and the means chosen to achieve it. See, e.g., Bullock, 405 U.S. at 145 (“[E]ven under conventional standards of review, a State cannot achieve its objectives by totally arbitrary means; the criterion for differing treatment must bear some relevance to the object of the legislation.”); Romer v. Evans, 517 U.S. 620, 632 (1996) (“[E]ven in the ordinary equal protection case calling for the most deferential of standards, we insist on knowing the relation between the classification adopted and the object to be attained.”); Armor v. Indianapolis, 566 U.S. 673, 681 (2012) (stating that a law will survive rational basis review if “the relationship of the classification to its goal is not so attenuated as to render the distinction arbitrary or irrational”) (citation and internal quotation marks omitted). Florida asserts that it has an interest in ensuring “that all felons complete all terms of sentence to repay their debt to society,” or in other words, “in enforcing the punishments it has imposed for violations of its criminal laws.” Appellants’ Initial En Banc Br. at 35. See also id. at 38 (describing the state’s interest “in demanding a full measure of justice from every felon”). The majority somewhat re-frames Florida’s goals, stating that “two interests are relevant here”: Florida’s “interest in disenfranchising
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convicted felons” and its related “interest in restoring felons to the electorate after justice has been done and they have been fully rehabilitated[.]” Maj. Op. at 22–23.
Disenfranchising felons, however, is not the goal of Amendment 4. Quite the opposite, Amendment 4 automatically restored voting rights to felons who completed all the terms of their sentences. See Advisory Op. to the Att’y Gen. Re: Voting Restoration Amendment, 215 So. 3d 1202, 1208 (Fla. 2017) (“[T]he chief purpose of the amendment is to automatically restore voting rights to felony offenders[.]”). Nor was disenfranchisement the purpose of § 98.0751, which implemented Amendment 4 and is titled “Restoration of voting rights; termination of ineligibility subsequent to a felony conviction.” Framing Florida’s goal as reenfranchising felons who have completed the terms of their sentences is an ipse dixit—it merely restates what the law does, rather than provide an interest furthered by the LFO requirement.
For the sake of argument, however, let’s assume the legitimacy of each of the asserted state interests. If we do that, “[t]he only remaining question is whether [Florida] achieved its purpose in a patently arbitrary or irrational way.” U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 177 (1980). In my view, the answer to that question is yes.
I will start with whether the LFO requirement rationally furthers the goals articulated by the majority. Though Florida may disenfranchise felons under
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Richardson, or choose to re-enfranchise only some felons, it cannot draw arbitrary lines between those felons it re-enfranchises and those it does not. See Shepherd, 575 F.2d at 1114 (“Nor can we believe that section 2 would permit a state to make a completely arbitrary distinction between groups of felons with respect to the right to vote.”); Harvey, 605 F.3d at 1079 (“[A] state could not choose to re-enfranchise voters of only one particular race . . ., or re-enfranchise only those felons who are more than six-feet tall.”).
In Harvey, the Ninth Circuit concluded that a state “has a rational basis for restoring voting rights only to those felons who have completed the terms of their sentences, which includes the payment of any fines or restitution orders.” 605 F.3d at 1079. But as previously noted Justice O’Connor, writing for the panel, cautioned that “[p]erhaps withholding voting rights from those who are truly unable to pay their criminal fines due to indigency would not pass the rational basis test, but we do not address that possibility because no plaintiff in this case has alleged he is indigent.” Id. at 1080.
Re-enfranchising felons who complete the terms of their sentences—except for those who are unable to pay LFOs—“amounts to nothing ‘more than a naked assertion that [a felon’s] poverty by itself,’ is a sufficient reason to disqualify the felon from regaining the right to participate in the exercise of democracy.” Bredesen, 624 F.3d at 758 (Moore, J., dissenting) (quoting Bearden, 461 U.S. at
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671). See Marc Meredith & Michael Morse, Discretionary Disenfranchisement: The Case of Legal Financial Obligations, 46 J. Legal Stud. 309, 311 (2017) (“Although less-wealthy individuals are not a suspect class, conditioning the restoration of the right to vote on LFOs without evaluating whether someone is truly unable to pay might not even satisfy a rational basis test.”). The majority bases its entire rational basis analysis on the proposition that felons cannot intelligently exercise the franchise—the right to vote—unless they have fully paid their LFOs. See Maj. Op. at 25. But as Harper teaches, a felon’s wealth has no bearing on whether he is qualified to vote. See Harper, 383 U.S. at 668 (“To introduce wealth or payment of a fee as a measure of voter’s qualifications is to introduce a capricious or irrelevant factor. The degree of the discrimination is irrelevant. In this context—that is, as a condition of obtaining a ballot—the requirement of fee paying causes an ‘invidious’ discrimination that runs afoul of the Equal Protection Clause.”) (citation omitted). The notion that the indigent cannot be rehabilitated due solely to their inability to pay is non-sensical.
Critically, the fact that Florida had restored voting rights to 0 felons as of the time of trial indicates that this scheme does not “rationally” further the goal of reenfranchising felons. Instead, it shows that Florida’s organs of government are doing their best to slowly but surely suffocate Amendment 4.
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The majority says that even though their registrations have not been screened, “all 85,000 [registered] felons will be entitled to vote.” Maj. Op. at 5, 27. It also seems to suggest that felons may go ahead and register, as “[o]nce a felon submits a facially complete registration form . . ., he is added to the voting rolls as a registered voter; he is not then required to prove that he has completed his sentence.” Id. at 26. But these statements overlook the critical fact that Florida has kept tens of thousands of felons in voting limbo, not knowing their LFO status (and therefore not knowing their eligibility to vote).
Should felons choose to vote after registering, and then later find out that they are not in fact eligible to vote, they may be subject to prosecution. Even the Director of the Division of Elections acknowledged at trial that if she “were in the voter’s position, [she doesn’t] know that [she] would be swearing under oath if [she] wasn’t sure about” her eligibility. See Tr. at 1381. She agreed that requiring felons to affirm their eligibility to vote in their registration forms “is certainly a challenge . . . and that’s why [the Division] offered up the advisory opinion, to see if that would give them some cover.” Id. To make matters more treacherous for felons, there is no good-faith safe harbor to protect those who register and vote, but later turn out to be mistaken about their eligibility. See Jones II, 2020 WL 2618062, at *25 (“SB7066 provides immunity from prosecution for those who registered in good faith between January 8, 2019, when Amendment 4 took effect, and July 1, 2019, when SB7066
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took effect. A proposal to add a good-faith provision for other registrants was rejected.”).
Unlike the majority, Florida does not assert that felons should go ahead and vote once they register, instead arguing that it “has an interest in avoiding having felons presumed eligible to vote before an investigation can reasonably be completed, as that would pose a substantial risk of authorizing ineligible felons to vote.” Appellants’ En Banc Reply Br. at 32. If the majority’s suggestion that felons can simply vote once they register (without knowing whether they have actually satisfied their LFO requirements) were accurate, that would belie Florida’s contention (adopted by the majority) that the purpose of the LFO-requirement is to ensure that felons cannot vote until they complete all terms of their sentences.9
3 Florida, as noted, maintains that the LFO scheme advances its interest in “all felons complet[ing] all terms of sentence,” or in enforcing the punishments it imposes. See Appellants’ Initial En Banc Br. at 35. To the extent that Florida’s interest is in punishment, as we explained in Jones I, the LFO scheme punishes indigent felons “more harshly than those who committed precisely the same crime.
9 The majority’s statement that “Florida ha[s] not yet been able to find information justifying the removal of any of them from the voting rolls,” Maj. Op. at 27, is also misleading. Florida has not even started implementing the LFO screening process, see Tr. at 1236, even though Amendment 4 was enacted in 2018.
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. . . And this punishment is linked not to their culpability, but rather to the exogenous fact of their wealth.” Jones I, 950 F.3d at 812. This cannot be rational.
If Florida’s interest is in felons repaying their full debts to society, requiring indigent felons to pay LFOs before regaining the right to vote does not actually aid in collections. See id. at 811 (“The problem with the incentive-collections theory is that it relies on the notion that the destitute would only, with the prospect of being able to vote, begin to scratch and claw for every penny, ignoring the far more powerful incentives that already exist for them—like putting food on the table, a roof over their heads, and clothes on their backs.”); Jones II, 2020 WL 2618062, at *26 (“[O]ne cannot get blood from a turnip or money from a person unable to pay.”). The LFO requirement thus erects a barrier to voting for the indigent, “without delivering any money [to the state or to victims] at all[.]” Zablocki v. Redhail, 434 U.S. 374, 389–91 (1978) (invalidating a state statute that required an individual to show he had satisfied court-ordered child support before being able to marry). See also Bredesen, 624 F.3d at 756 (Moore, J., dissenting) (“I fail to see how preconditioning suffrage on a payment that a person is unable to make is in any rational way related to the government’s interest in promoting that payment.”).
In addition, Florida “has far better ways to collect amounts it is owed.” Jones II, 2020 WL 2618062, at *26. In United States Department of Agriculture v. Moreno, 413 U.S. 528, 529 (1973), the Supreme Court invalidated—under rational
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basis review—a provision of the Food Stamp Act which permitted individuals who live in households where everyone is related to obtain food stamps, but denied food stamps to those who live in households where at least one person is unrelated. Although the government argued that this scheme would minimize fraud in the administration of the food stamp program—a seemingly unassailable contention under rational basis review—the Supreme Court found that the existence of other provisions aimed specifically at preventing fraud cast doubt on that goal. See id. at 536–37. The Supreme Court also explained that “in practical effect, the challenged classification simply does not operate so as to rationally further the prevention of fraud.” Id. at 537. If the scheme in Moreno was found constitutionally wanting, Florida’s LFO requirement does not stand a chance of surviving.
Here, as in Moreno, other statutes aimed at collecting LFOs cast doubt on Florida’s purported goal. See, e.g., Fla. Stat. § 28.246(6) (authorizing the clerk of court to pursue the collection of financial obligations by referring the account to a private attorney or collection agent); Fla. Stat. § 938.35 (authorizing a board of county commissioners or governing body of a municipality to refer the collection of fees, fines, or costs to which it is entitled to a private attorney or collection agent); Fla. Stat. § 775.089(12)(a) (authorizing the court to enter an income deduction order to make deductions from income paid to the defendant to meet the defendant’s restitution obligations). And felons are required by law to pay all of their outstanding
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LFOs whether or not their voting rights are restored. Those LFOs are not wiped out if indigent felons are allowed to vote.
Moreover, “in practical effect” the LFO requirement does not rationally further Florida’s asserted goal. See Moreno, 413 U.S. at 537. The district court’s undisputed factual findings show that Florida often cannot tell felons how much they owe. If Florida cannot inform felons about the amount of LFOs they have outstanding—information which they must have in order to satisfy their obligations—how can this system possibly encourage or incentivize felons to complete the terms of their sentences? There is no answer, because no answer is possible.
Florida’s newly-minted every-dollar method—created, I think, for this litigation—also undermines the claimed goal of requiring that every felon complete all terms of his sentence, as it allows a felon to regain the right to vote without actually satisfying his LFOs. As discussed earlier, under the every-dollar method, a felon need not pay all of his underlying LFOs, so long as the amount of payments made towards fees and surcharges equals or exceeds the amount of LFOs initially ordered. This could, in some cases, lead to a victim receiving less than the full amount of restitution ordered, or Florida receiving less than the fines, fees, and costs imposed. See Tr. at 1359. Florida says that the every-dollar policy “promotes administrability by making it easier to track felon payments while demanding that
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felons pay the monetary amounts set forth in their sentencing document before regaining eligibility to vote.” Appellants’ En Banc Reply Br. at 16. But the district court’s unchallenged factual findings establish that it does just the opposite, given that county records routinely show only the net payment received from collections agencies, making it extremely difficult (if not impossible) to calculate the amount that felons have already paid under this approach.
Florida further claims that it is “treating all felons equally, regardless of financial circumstance,” by requiring that all felons pay their LFOs before regaining the right to vote. See Appellants’ Initial En Banc Br. at 35. But, in effect, the LFO requirement precludes indigent felons from voting, while re-enfranchising those felons who can pay—the antithesis of equal treatment. A system that permits nonindigent felons to regain the right to vote, while continuing to disenfranchise indigent felons, cannot be rational. Cf. Bredesen, 624 F.3d at 759 (Moore, J., dissenting) (“Because the Plaintiffs are otherwise eligible for the automatic restoration of the right to vote but are prevented from attaining that right because of their inability to pay a sum, the Tennessee statute effectively sets affluence as a voting qualification and is plainly irrational.”).
Two decades ago, the Supreme Court explained in Bush that “[t]he right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise.” 531 U.S. at 104. The Supreme Court
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held in that momentous case that the recount mechanisms Florida implemented during the 2000 election did not “satisfy the minimum requirement for nonarbitrary treatment of voters” because of “the absence of specific standards to ensure its equal application.” Id. at 105–06. “The formulation of uniform rules” was necessary because “the standards for accepting or rejecting contested ballots might vary not only from county to county but indeed within a single county from one recount team to another.” Id. at 106. It is not too much to demand the same here. “The idea that every voter is equal to every other voter in his State,” Gray v. Sanders, 372 U.S. 368, 380 (1963), applies to felons and non-felons alike. See id. at 380–81 (“Minors, felons, and other classes may be excluded [from voting]. But once the class of voters is chosen and their qualifications specified, we see no constitutional way by which equality of voting power may be evaded.”) (citation omitted).
In Florida, whether a felon is deemed eligible to vote may vary county by county, depending on which Supervisor of Elections reviews a felon’s registration. This is because the Division of Elections has not provided any guidance whatsoever to Supervisors of Elections on how to implement the LFO requirement, see Tr. at 474, 476, and there is confusion about how to determine how much a felon owes— with different officials following different methods. See Jones, 2020 WL 2618062, at *19 (noting that “one Supervisor of Elections testified she had never heard of the [every-dollar] method the State now embraces”). As one County Supervisor of
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Elections testified, “usually the Division of Elections writes a rule to help us implement the law. Rules are very important because they make sure that all 67 of us are treating our voters basically in the same manner.” Tr. at 474. Yet after the passage of § 98.0751, Florida has issued no new rules for implementing the LFO requirement. See id. “This is not a process with sufficient guarantees of equal treatment.” Bush, 531 U.S. at 107.
To recap, Florida has effectively disenfranchised almost the entire class of felons who were given the right to vote by Amendment 4. And it has done so by means that bear no rational relationship to the goals it seeks to achieve.
III The majority says that the district court did not decide whether Florida’s reenfranchisement scheme violates the Due Process Clause. See Maj. Op. at 8, 52. In my view, the district court concluded that the LFO requirement violates due process: “The requirement to pay, as a condition of voting, amounts that are unknown and cannot be determined with diligence is unconstitutional.” Jones II, 2020 WL 2618062, at *44. This is a due process holding—not an equal protection holding— as it does not rest on differential treatment of those who are unable to pay, but on Florida’s failure to give felons adequate notice or information on how to satisfy the terms of their sentences.
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The district court got it right. The LFO requirement violates due process because Florida does not provide felons with adequate notice of their eligibility to vote. Contrary to the majority’s assertion, see Maj. Op. at 56–58, the LFO requirement is not merely “legislative,” and it is subject to a procedural due process challenge. Figuring out whether felons have paid their LFOs is adjudicative, for the Division of Elections is tasked with both conducting an individualized assessment of a felon’s LFOs and determining whether they have been satisfied.
Finally, § 98.0751 is unconstitutionally vague. It does not provide sufficient standards for how to determine whether a felon has satisfied the LFO requirement, resulting in arbitrary application.
A “The Fourteenth Amendment’s Due Process Clause protects persons against deprivations of life, liberty, or property[.]” Wilkinson v. Austin, 545 U.S. 209, 221 (2005). Our analysis under the Due Process Clause “proceeds in two steps: We first ask whether there exists a liberty or property interest of which a person has been deprived, and if so we ask whether the procedures followed by the State were constitutionally sufficient.” Swarthout v. Cooke, 562 U.S. 216, 219 (2011). “A liberty interest may arise from the Constitution itself, by reason of guarantees implicit in the word ‘liberty,’ . . . or it may arise from an expectation or interest created by state laws or policies.” Wilkinson, 545 U.S. at 221 (citations
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omitted). The right to vote creates a fundamental liberty interest. See, e.g., Harper, 383 U.S. at 670 (“[T]he right to vote is too precious, too fundamental to be so burdened or conditioned.”); Reynolds, 377 U.S. at 554 (“Undeniably the Constitution of the United States protects the right of all qualified citizens to vote, in state as well as in federal elections.”); Cook v. Randolph Cty., 573 F.3d 1143, 1152 (11th Cir. 2009) (“The Constitution certainly protects the right to vote.”); Doe v. Rowe, 156 F. Supp. 2d 35, 47–48 (D. Me. 2001) (“[V]arious courts have recognized that the fundamental nature of the right to vote gives rise to a liberty interest entitled to due process protection.”) (citing cases).
Though the Constitution permits states to disenfranchise felons, see Richardson, 418 U.S. at 54, Florida’s citizens chose through Amendment 4 to provide a right to vote for felons who have completed all terms of their sentences, thereby creating a liberty interest. And when a state chooses to create a liberty interest, “the Due Process Clause requires fair procedures for its vindication.” Swarthout, 562 U.S. at 220 (“There is no right under the Federal Constitution to be conditionally released before the expiration of a valid sentence, and the States are under no duty to offer parole to their prisoners. When, however, a State creates a liberty interest, the Due Process Clause requires fair procedures for its vindication— and federal courts will review the application of those constitutionally required procedures.”). See also Wolff v. McDonnell, 418 U.S. 539, 558 (1974) (“We think
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a person’s liberty is equally protected, even when the liberty itself is a statutory
creation of the State.”); Bell v. Burson, 402 U.S. 535, 539 (1971) (repeating “the
general proposition” that the Due Process Clause “limit[s] state power to terminate
an entitlement whether the entitlement is denominated a ‘right’ or a ‘privilege’”);
Martin v. Kemp, 341 F. Supp. 3d 1326, 1338 (N.D. Ga. 2018) (“Having created an
absentee voter regime through which qualified voters can exercise their fundamental
right to vote, the State must now provide absentee voters with constitutionally
adequate due process protection.”).10
Before a state can deprive a person of a liberty or property interest, due
process obligates it to provide him with adequate notice. See, e.g., Snyder v.
Massachusetts, 291 U.S. 97, 127 (1934) (“It is fundamental that there can be no due
process without reasonable notice and a fair hearing.”), overruled in part on other
grounds by Malloy v. Hogan, 378 U.S. 1 (1964). That notice must “apprise the
10 Though the majority “assume[s] that the right to vote is a liberty interest protected by the Due Process Clause,” it cites Johnson v. Hood, 430 F.2d 610, 612 (5th Cir. 1970), to suggest that the right to vote in a state election is not a right secured by the Due Process Clause. See Maj. Op. at 56. Johnson is not germane for a couple of reasons. First, unlike Johnson, this case involves the right to vote in both federal and state elections. Second, we later held in Duncan v. Poythress, 657 F.2d 691, 700 (5th Cir. Unit B Sept. 28, 1981), that “the due process clause of the fourteenth amendment prohibits action by state officials which seriously undermine the fundamental fairness of the electoral process.” We explained that Johnson “involved [a] garden variety challenge[ ] to the manner in which ballots were counted by state election officials”; it did not concern “fundamentally unfair election practices or purposeful conduct which threatened the democratic system.” Id. at 704. Thus, we declined to read Johnson “as precluding federal relief in th[e] very different case of a fundamental breakdown of the democratic system.” Id. The plaintiffs here do not bring a “garden variety” challenge to the method in which ballots are counted, but instead assert a lack of adequate procedures to inform them of their eligibility to vote. Johnson is therefore inapplicable.
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affected individual of, and permit adequate preparation for, an impending ‘hearing.’” Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 14–15 (1978) (holding that notice that a utility bill was overdue and that service would be disconnected unless payment was made by a certain date violated due process because it “[d]id not advise the customer of the availability of a procedure for protesting a proposed termination of utility service as unjustified”). See also Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950) (“The notice must be of such nature as reasonably to convey the required information[.]”); Armstrong v. Manzo, 380 U.S. 545, 550 (1965) (“[A]n elementary and fundamental requirement of due process . . . is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.”).
A Florida statute, § 98.075(7), outlines the procedures for removal from the voter rolls, including notice of the registered voter’s ineligibility and an opportunity to request a hearing. But these procedures fall constitutionally short for several reasons.
First, the procedures set forth in § 98.075(7) do not come into play until after the Division of Elections begins to screen registrants, determines that they are ineligible to vote, and seeks to remove them from the voter rolls. As the district court found, and Florida does not contest, the Division of Elections has processed 0
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out of 85,000 pending registrations of felons. So, for those 85,000 registrants—and all those who will surely follow—the statutory requirement of notice and a hearing is completely illusory. Those appalling numbers, unfortunately, mean nothing to Florida or to the majority.
Second, should any of these 85,000 registrants choose to vote in the upcoming election—as they may believe, in good faith, they have a right to do—they risk criminal prosecution if they turn out to be wrong about their eligibility. Given Florida’s lack of clarity regarding how to calculate outstanding LFOs, this will surely be the case for at least some felons. The truth is that many of these registrants will not vote to avoid the risk of prosecution, even if they are in fact eligible, creating a de facto denial of the franchise. See N.A.A.C.P. v. Button, 371 U.S. 415, 433 (1963) (“The threat of sanctions may deter their exercise almost as potently as the actual application of sanctions.”). Florida ignores this reality, and the majority is blind to it.
Third, there is no procedure for a felon to determine his eligibility to vote before registering—even though the voter registration form requires registrants to sign an oath affirming that they are qualified to vote. Florida says that felons who wish to vote may access their records through the county clerk’s office or call clerks to obtain information. See Appellants’ Initial En Banc Br. at 54. But the record belies that claim, and reflects that such inquiries are usually fruitless. As discussed
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earlier, the evidence at trial showed that the state’s records are often inconsistent or incomplete, clerks are often unhelpful, counties do not maintain records of payments (including collection or payment plan fees), and the state often maintains no records of restitution. Two County Supervisors of Elections testified that there is no reliable database that voters can use to check all the different LFOs they may owe. And even if some records are available, Florida’s own witnesses can’t say whether the actualbalance method, or the every-dollar method, should be used to determine the amount of LFOs outstanding. Understandably, the district court found that “[t]rying to obtain accurate information” by contacting the supervisor of elections or clerk of court “will almost never work.” Jones II, 2020 WL 2618062, at *17.
Fourth, if a felon registers based on the belief that he is eligible to vote, and then turns out to be wrong, he may be prosecuted for making a false affirmation in connection with voting. Florida downplays this risk, proclaiming that felons should rest assured that they will not be convicted if they registered in good faith because willfulness must be shown to prove a violation of Fla. Stat. § 104.011. But that comforting assurance—tactically made for an advantage in litigation—is useless, as it does not tell us how the state’s prosecutors will choose to prosecute possible or alleged violations of the law. Cf. Stenberg v. Carhart, 530 U.S. 914, 940–41 (2000) (declining to accept the attorney general’s “narrowing interpretation” of the state’s abortion statute as “authoritative” because it did not bind the state courts or local law
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enforcement authorities). Felons should not have to register in the hope that a jury will later find good faith should they be prosecuted. See Morgan v. Wofford, 472 F.2d 822, 827 (5th Cir. 1973) (“Especially when criminal sanctions may be involved, we have always been careful to surround the procedures through which the state may deprive a defendant of freedom with safeguards against possible miscarriages of justice.”).11
B The Director of the Division of Elections testified that, to avoid risk of prosecution, a felon may request an advisory opinion. Under Fla. Stat. § 106.23(2), any person who relies on an advisory opinion in good faith will be immune from prosecution. But that statute does not make clear that the advisory opinion process is available to any individual with questions about his or her eligibility to vote. See § 106.23(2) (“The Division of Elections shall provide advisory opinions when requested by any supervisor of elections, candidate, local officer having electionrelated duties, political party, affiliated party committee, political committee, or other person or organization engaged in political activity, relating to any provisions or possible violations of Florida election laws . . . .”). The statute, moreover, sets no time frame for when the Division must provide an advisory opinion. See id.
11 And, as noted earlier, the Florida Legislature rejected a proposal to add a good-faith safe harbor to SB7066. See Jones II, 2020 WL 2618062, at *25.
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Tellingly, the Director could not say how long it would take to obtain an advisory opinion, other than to generally state that it could take a week or months. See Tr. at 1387–89. To make matters worse, the Division’s own website does not provide guidance on what a request for an advisory opinion should include. See id. at 1393. Florida’s lack of good faith in the 18 months since the passage of Amendment 4 is undeniable and palpable. What Florida is really unhappy about is that the district court’s advisory opinion process will actually require it to work, to do its job, within a specified time-frame.
Although it was the Director of the Division of Elections who suggested the advisory opinion procedure at trial, Florida now incredibly argues that “[t]he district court offered no legal basis for charging the State with the responsibility of providing felons with information about their own unfulfilled criminal sentences and any payments that they themselves have made toward them.” Appellants’ Initial En Banc Br. at 53. The majority seems to adopt this argument, stating that the Due Process Clause does not make Florida responsible for “locating and providing felons with the facts necessary to determine whether they have completed their financial terms of sentence.” Maj. Op. at 59.
This is a remarkable holding. I know of no cases (or other authorities) that say or hold that a state can impose a condition for the exercise of a right or privilege, and then refuse to explain to a person what the condition consists of or how to satisfy
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it. To the contrary, §§ 98.075(5) and 98.0751(3)(a)—Florida’s own laws—obligate the Division of Elections to make initial eligibility determinations, and §§ 98.075(7) and 98.0751(3)(b) charge County Supervisors of Elections with making the ultimate determination of eligibility. Federal law likewise requires states to inform applicants of voter eligibility requirements. See 52 U.S.C. § 20507(a)(5)(A). How can Florida make eligibility determinations without figuring out the amount of LFOs that a felon has outstanding? Florida cannot choose to condition the right to vote on payment of LFOs and then throw up its hands and refuse to tell potential voters how to fulfill that condition. “[A] party’s ability to take steps to safeguard its interests does not relieve the State of its constitutional obligation.” Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 799 (1983).12
To put this in some perspective, imagine a state that requires, as a condition of renewing drivers’ licenses and vehicle registrations, that drivers pay all outstanding citations for parking/traffic infractions. A driver goes to his county agency and is told that he may have some unpaid citations. He asks for information about the citations and their respective amounts so that he can verify their accuracy and pay whatever is outstanding. But the clerk tells him that the state can’t give him
12 As 19 states and Washington D.C. have explained, “many States task their court systems, not their residents, with maintaining a record of outstanding LFOs and amounts paid. Indeed, it is perfectly reasonable to expect the government actors that impose LFOs to keep track of those obligations.” Amicus Br. of District of Columbia, Illinois, California, Colorado, et al. at 27–30 (describing the approaches of other states).
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the information because the debt for the citations has been sold to third-party collection agencies; those agencies charge certain fees (which vary by agency and year) on top of the citation amounts; and the county has no way of knowing what those fees are or what amounts have been paid or credited. The clerk tries to call other state agencies (and some of the collection agencies) to get answers, but to no avail, and tells the driver he will have to figure everything out on his own. So the driver has to leave without his license and car registration, and will need to risk driving in violation of the law—and face arrest—in order to get to work, take his children to school, and carry out the other tasks of daily life. Would this state of affairs be constitutionally permissible? Of course not.
Assuming Florida ever gets around to processing felons’ registrations— something I have significant doubts about given the record in this case—those who it believes are ineligible would presumably receive notice under § 98.075(7). That statute does not, however, require the County Supervisor of Elections to disclose in the notice the amount of LFOs that a felon owes. See § 98.075(7)(a)(1)(a) (providing that the notice must include a “statement of the basis for the registered voter’s potential ineligibility,” but not requiring a specific determination of the amount of LFOs owed). And the record reflects that Florida often will be unable to determine that amount itself. See D.E. 360-47 at 8–9. Indeed, one County Supervisor of Elections testified that she would not even feel equipped to handle a hearing on
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outstanding LFOs, should a voter request one. See Tr. at 501 (“Q. Do you feel adequately equipped with information to handle a hearing on outstanding fines and fees if a voter requests one? A. Not at this . . . time.”).
Florida’s additional argument—that “concerns about the precise amount of a felon’s outstanding financial obligations simply do not attend a system in which the sole question for eligibility is whether any amount remains outstanding,” Appellants’ Initial En Banc Br. at 52—is astounding. With no way to figure out how much they owe, or whether they owe anything at all, felons cannot know whether they have satisfied their payment obligations, and so cannot contest their ineligibility if they request a hearing. Nor can they determine how much money they need to allot towards paying off their LFOs in order to obtain the right to vote in future elections. Cf. Morgan, 472 F.2d at 827 (holding that a defendant must have a chance to challenge the accuracy of the amount of restitution owed).
Even if felons could be saddled with the initial burden of trying to figure out their LFO status, it is Florida—and only Florida—which has the information and the ability to provide the ultimate answer to the felons’ inquiries. There is no third-party aggregator of data to whom the felons can turn.
As the Seventh Circuit has aptly stated: “It is universally agreed that adequate notice lies at the heart of due process. Unless a person is adequately informed of the reasons for denial of a legal interest, a hearing serves no purpose—and resembles
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more a scene from Kafka than a constitutional process.” Chicago Cable Commc’ns v. Chicago Cable Comm’n, 879 F.2d 1540, 1546 (7th Cir. 1989) (citations and internal quotation marks omitted). Cf. Franz Kafka, The Trial (1925). Although § 98.075(7) sets out a procedure in form, in substance it does not provide meaningful notice or information before depriving felons of the right to vote, now guaranteed to them under Florida law. See Bell, 402 U.S. at 541 (“[I]n reviewing state action in this area [of due process] we look to substance, not bare form, to determine whether constitutional minimums have been honored.”) (citation and internal quotation marks omitted); Mullane, 339 U.S. at 315 (“[P]rocess which is a mere gesture is not due process. The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it.”).
C The majority rejects the plaintiffs’ due process argument because, it says, any deprivation of their right to vote “was accomplished through the legislative process and the process for adopting a constitutional amendment[.]” Maj. Op. at 56. It is true that “[w]hen the legislature passes a law which affects a general class of persons, those persons have all received procedural process—the legislative process.” 75 Acres, LLC v. Miami-Dade Cty., 338 F.3d 1288, 1294 (11th Cir. 2003) (citation and internal quotation marks omitted). But the majority ignores the necessary adjudicative phase of the re-enfranchisement process under Florida’s own laws.
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On its face, § 98.0751 sets forth an adjudicative process for determining felons’ eligibility to vote. It explains that “[t]he department shall obtain and review information pursuant to s. 98.075(5) related to a person who registers to vote and make an initial determination on whether such information is credible and reliable regarding whether the person is eligible,” and that “[u]pon making an initial determination of the credibility and reliability of such information, the department shall forward such information to the supervisor of elections pursuant to s. 98.075.” § 98.0751(3)(a). It further provides that “[a] local supervisor of elections shall verify and make a final determination pursuant to s. 98.075 regarding whether the person who registers to vote is eligible,” and that “the supervisor of elections may request additional assistance from the department in making the final determination, if necessary.” § 98.0751(3)(b)–(c).
As these provisions make clear, determining eligibility to vote under Florida law requires evaluating past facts, including the amount of LFOs a felon was ordered to pay, and then calculating the amount that has already been paid (and where or to whom the payments are credited). This requires a number of adjudicative decisions—e.g., deciding whether LFOs are linked to misdemeanor or felony convictions if a felon has both, deciding whether to employ the actual-balance or every-dollar method, and deciding what evidence is enough to prove a payment has been made.
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Under Supreme Court and Eleventh Circuit precedent, this process is undeniably individual and adjudicatory. See Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 226 (1908) (“A judicial inquiry investigates, declares, and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end. Legislation, on the other hand, looks to the future and changes existing conditions by making a new rule, to be applied thereafter to all or some part of those subject to its power.”); Crymes v. DeKalb Cty., 923 F.2d 1482, 1485 (11th Cir. 1991) (“If the facts utilized in making a decision are specific, rather than general, in nature, then the decision is more likely administrative. Moreover, if the decision impacts specific individuals, rather than the general population, it is more apt to be administrative in nature.”). See also Thomas v. New York, 143 F.3d 31, 36 n.7 (2d Cir. 1998) (inquiring whether the action at issue is “fully legislative” such that the legislative process is the only process due or “at least in part[ ] adjudicative” such that individuals have a right to procedural due process and explaining that “[a]djudicative facts are facts about the parties and their activities”), cited with approval in 75 Acres, 338 F.3d at 1296. Indeed, Florida’s procedure for determining whether registrants should be removed from the voter rolls is similar to schemes that the Supreme Court has reviewed in other due process cases involving the denial of a state-created benefit. See, e.g., Goldberg v. Kelly, 397 U.S. 254, 260– 62 (1970) (reviewing whether a state’s procedure for terminating public assistance
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payments violated procedural due process); Mathews v. Eldridge, 424 U.S. 319, 340–49 (1976) (reviewing whether the procedure for terminating Social Security disability benefit payments complied with due process).
The First Circuit’s opinion in Garcia-Rubiera v. Fortuno, 665 F.3d 261 (1st Cir. 2011), is both instructive and persuasive. There, Puerto Rico law required all motor vehicle owners to pay for compulsory, state-issued automobile insurance, but guaranteed a reimbursement for those who had already paid for private insurance. See id. at 263. The relevant statute, however, did not itself set up procedures for reimbursement or tell insureds where or how to find such procedures. See id. In fact, insureds would not find the procedures unless they went in person to the proper office of government and made an “appropriate request” for a copy of the regulation. See id. at 263–64. The First Circuit held that this scheme violated the notice requirements of the Due Process Clause. See id. at 264. In so holding, it explained that enactment of the statute did not provide adequate notice, as it gave “no notice to insureds of how to obtain reimbursement; it merely direct[ed] the Secretary of the Treasury to ‘establish a procedure for processing the reimbursement request from any person.’” Id. at 272 (citation omitted). “Absent a trip, in person, to the appropriate office of government and a proper request to inspect the regulation, the Commonwealth has left plaintiffs in the dark as to every aspect of [the procedure]. The Commonwealth’s statutory notice argument thus fails.” Id. at 274.
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Here, similarly, neither Amendment 4 nor § 98.0751 tells felons how to determine whether they have outstanding LFOs. The legislative process is not the end of the matter, and Florida’s current adjudicatory scheme cannot possibly give adequate notice to felons as to whether they will be regaining the right to vote or not. And, as in Fortuno, absent a trip or a call to the appropriate government office (or collection agency), felons will not know how these decisions are made—only here, even with such a call or trip, they still may not have access to accurate information about their outstanding LFOs or know whether they are eligible to vote. Thus, “more than statutory notice is required.” Id. at 275.
D The due process problems do not end there. The Supreme Court has told us that a law may be vague for two independent reasons: “First, it may fail to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits; second, it may authorize and even encourage arbitrary and discriminatory enforcement.” Chicago v. Morales, 527 U.S. 41, 56 (1999). In my view, § 98.0751 is impermissibly vague for the latter reason—it fails to “provide explicit standards” on how to implement the LFO requirement so as to avoid “arbitrary and discriminatory” application. See Grayned v. Rockford, 408 U.S. 104, 108 (1972). “Vague laws invite arbitrary power . . . by leaving the people in the dark about what the law demands and allowing prosecutors and courts to make it up.” Sessions
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v. Dimaya, 138 S. Ct. 1204, 1223–24 (2018) (Gorsuch, J., concurring). The lack of standards regarding how to implement the LFO requirement—as demonstrated by the evidence at trial and the district court’s unchallenged factual findings—allows the Division of Elections and County Supervisors of Elections to “make it up” as they go, outside the legislative process and without any oversight to ensure uniformity.
As already discussed, § 98.0751(3)(a)–(b) provides that the Division shall make an “initial determination” about a registrant’s eligibility to vote, and a local Supervisor of Elections must then “verify and make a final determination.” But the statute does not provide any guidance on how to determine whether a felon owes LFOs, and in what amount, if those matters are not clear from the four corners of the sentencing document. And there has been no guidance from Florida officials on what to do if records about a felon’s LFOs are unclear or inconsistent. See Tr. at 512–13.
The majority says that the law itself is not vague, and instead felons are just uncertain about “factual circumstances” regarding their eligibility to vote. See Maj. Op. at 54. But these “factual circumstances” are the whole ballgame, and not merely insignificant details. In any event, it is not just felons who are confused about whether they have satisfied the terms of their sentences. Because the Division of Elections has not provided any guidance to County Supervisors of Elections on how
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to implement the LFO requirement, they too are “left guessing” as to how to impose it. See Wollschlaeger v. Governor, Fla., 848 F.3d 1293, 1319 (11th Cir. 2017) (en banc) (holding that a Florida law that barred health care practitioners from “unnecessarily harassing a patient about firearm ownership” was unconstitutionally vague because reasonable doctors were “left guessing” as to what was prohibited). And a “wrong guess” here results in “severe consequences”: the wrongful denial of the right to vote, or an arrest for a voting violation. See id.
The record shows that, because of the absence of clear guidelines, there is a lack of consistency in how County Supervisors of Elections are imposing the LFO requirement. Some may be enforcing it; others may not. One County Supervisor of Elections, for example, testified that his office only checks for restitution. See Tr. at 912–13 (“Q. So is it your testimony that the only legal financial obligation you currently check for is restitution? A. Currently, right now that’s what we are looking for . . . We are not trying to dig up the fines and fees and that type of thing. I think the law is not clear on that, but that’s where we are.”). It is unclear what other County Supervisors are doing. Not only does the record before the district court reflect the risk of arbitrary enforcement, the risk seems to be well known. See Gonzalez, Voter Restoration, 44 Nova L. Rev. at 220 (“[T]he restoration of voting rights [in Florida] continues to be complicated and discriminatory. There is no single entity in place to track LFOs, and it will be very expensive to create such a system.
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. . . [I]t is unclear how individuals will know the total amount of LFOs they need to pay before regaining their right to vote, or how election officials will know who is able to register.”).
What a great system Florida has set up. If the stakes were not so high, it would be laughable and deserving of a Dave Barry article lampooning the state’s bureaucratic incompetence and malfeasance. See, e.g., Dave Barry, Best. State. Ever.: A Florida Man Defends His Homeland 22 (2016) (“[O]ur state government is excellent. . . . No, that’s a lie.”).
There is also an incredible lack of uniformity as to what method Florida uses to determine the amount of LFOs owed. The Director of the Division of Elections testified at trial that the every-dollar method would be used, but as the district court noted, the Assistant Director of the Division of Elections initially testified, in effect, that the actual-balance method is the proper approach. And one County Supervisor of Elections testified she had never heard of the every-dollar method. See Jones II, 2020 WL 2618062, at *19. As a result of this bureaucratic confusion, and Florida’s failure to codify any method, whether a felon is considered to have completed his LFO obligations may depend on who is reviewing that felon’s registration form— someone who follows the every-dollar method, or someone who applies the actualbalance method, or someone who comes up with a brand new method. The right to
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vote—even if considered a state-created benefit for re-enfranchised felons—is too important to be denied in this inconsistent, unorderly, and nonsensical manner.
IV The Twenty-Fourth Amendment, ratified in 1964, provides that the right to vote “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.” U.S. Const. amend. XXIV. This straightforward language confirms the principle that “a tax on the right to vote is constitutionally indefensible.” United States v. Alabama, 252 F. Supp. 95, 105 (M.D. Ala. 1966) (three-judge court) (Johnson, J., concurring). The district court concluded that fees and costs routinely imposed by Florida on criminal defendants are “other tax[es]” prohibited by the Twenty-Fourth Amendment, as they are “assessed regardless of whether a defendant is adjudged guilty, bear no relation to culpability, and are assessed for the sole or at least primary purpose of raising revenue to pay for government operations. . . . A tax by any other name.” Jones II, 2020 WL 2618062, at *29. The Supreme Court’s only decision interpreting the Twenty-Fourth Amendment, the text and contemporaneous understanding of the Amendment, and Supreme Court cases analyzing what constitutes a “tax” all confirm that the district court was correct.
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A Fees and costs routinely imposed on criminal defendants—in operation and in substance—constitute an “other tax” under the Twenty-Fourth Amendment. See United States v. Constantine, 296 U.S. 287, 294 (1935) (explaining that courts “[d]isregard[ ] the designation of the exaction, and view[ ] its substance and application” to determine whether a payment is a penalty or a tax). Although Florida law views these fees and costs as part of the “criminal sanction” imposed on those who are convicted, see Martinez v. State, 91 So. 3d 878, 880 (Fla. 5th DCA 2012), that characterization does not bind us in interpreting the Twenty-Fourth Amendment. See, e.g., Macallen Co. v. Massachusetts, 279 U.S. 620, 625 (1929) (“As it many times has been decided neither state courts nor Legislatures, by giving the tax a particular name, or by using some form of words, can take away our duty to consider its nature and effect.”). Let’s start with Harman v. Forssenius, 380 U.S. 528 (1965), the only case in which the Supreme Court has addressed the Twenty-Fourth Amendment. In Harman, the Supreme Court held that a Virginia law requiring those who wished to vote in a federal election to either (1) pay the poll tax required for state elections (then $1.50), or (2) complete a notarized/witnessed certificate of residency before each election, violated the Twenty-Fourth Amendment. See id. at 531–34.
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Although the residency certificate itself was not a monetary “tax” of any kind, the Court broadly interpreted the Twenty-Fourth Amendment and ruled that the certificate could not be used as an alternative means of paying a poll tax. See id. at 541 (“[I]n order to demonstrate the invalidity of [the Virginia law], it need only be shown that it imposes a material requirement solely upon those who refuse to surrender their constitutional right to vote in federal elections without paying a poll tax.”). The Court pointed out that the certificate requirement was constitutionally problematic in part because obtaining the certificate from local election officials and then filing it with the city or county treasurer was “plainly a cumbersome procedure” which “amount[ed] to annual re-registration[.]” Id. at 541–42. Finally, the Court rejected Virginia’s argument that “the certificate is a necessary substitute method of proving residence” because “constitutional deprivations may not be justified by some remote administrative benefit to the State.” Id. at 542.
Harman teaches that a state-imposed and non-monetary condition on voting can violate the Twenty-Fourth Amendment even if the condition is not itself a “tax.” With Harman in mind, I turn to the fees and costs that Florida imposes on all those convicted of crimes in its courts.
B When the Twenty-Fourth Amendment was ratified, a “tax” was commonly understood as a “[c]ontribution levied on persons, property, or business, for support
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of government.” Concise Oxford Dictionary of Current English 1328 (5th ed. 1964) (emphasis added). This was also the accepted legal meaning. See Ballentine’s Law Dictionary 1255 (3d ed. 1969) (“A forced burden, charge, exaction, imposition, or contribution assessed in accordance with some reasonable rule of apportionment by authority of a sovereign state upon the persons or property within its jurisdiction to provide public revenue for the support of the government, the administration of the law, or the payment of public expenses.”) (emphasis added); Black’s Law Dictionary 28 (4th ed. 1951) (“[A] pecuniary contribution . . . for the support of a government.”) (emphasis added).
Not only was this the contemporaneous understanding in the early 1960s, but the Supreme Court has long defined “tax” the same way. See, e.g., United States v. La Franca, 282 U.S. 568, 572 (1931) (“A ‘tax’ is an enforced contribution to provide for the support of government; a ‘penalty’ . . . is an exaction imposed by statute as punishment for an unlawful act.”); United States v. State Tax Comm’n of Miss., 421 U.S. 599, 606 (1975) (“[T]he standard definition of a tax” is an “enforced contribution to provide for the support of government”) (citation and internal quotation marks omitted). So there should be no dispute about what a “tax” is.
More recently, in National Federation of Independent Business v. Sebelius, 567 U.S. 519, 565 (2012), the Supreme Court analyzed whether a “penalty” (so labeled by Congress) imposed on those who did not comply with the individual
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mandate to purchase health insurance under the Affordable Care Act was a tax. In concluding that the so-called “penalty” was indeed a tax, the Court considered factors such as the amount of the payment, the lack of a scienter requirement, and the collection of the payment solely by the IRS through the normal means of taxation. See id. at 566–67.
Under these authorities, the fees and costs Florida imposes on convicted defendants are taxes within the meaning of the Twenty-Fourth Amendment. As the district court explained, for most categories of fees “the amount is fixed, and with rare exceptions, the amount is comparatively modest[.]” Jones II, 2020 WL 2618062, at *29. The fees are also ordinarily collected in the same way as civil debts or other taxes owed to the government, including by reference to a collection agency—not necessarily through the criminal justice system. See id. And there is no scienter requirement, as a defendant who pleads no contest and is not adjudged guilty also must pay fees and costs. See id. Moreover, the fees and costs are imposed on felons convicted of crimes that do not have a mens rea element. See, e.g., Fla. Stat. §§ 893.13(1), 893.101(2) (explained in State v. Adkins, 96 So. 3d 412, 415–16 (Fla. 2012)).
Most importantly, the primary purpose of these fees and costs is to raise revenue for the operation of Florida’s government. As mentioned earlier, Florida funds its criminal-justice system in large part through fees routinely assessed against
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criminal defendants. See Fla. Const., art. V, § 14 (providing that, with limited exceptions, all funding for clerks of court and county courts must come from fees and costs). Florida law therefore requires that payments of fees and costs be retained in various trust funds to generate revenue for court-related functions, and that the excess be remitted to the Florida Department of Revenue to fund other areas of state government. See Fla. Stat. §§ 28.37(3), 213.131, 215.20, 142.01, 960.21.
For example, Fla. Stat. § 938.01(1) requires felons to pay $3 as a court cost, and that sum is remitted to the Department of Revenue for, among other things, a domestic violence program and a law-enforcement training fund. Similarly, Fla. Stat. § 938.05 imposes a flat $225 fee in every felony case, $200 of which is used to fund the clerk’s office and $25 of which is remitted to the Florida Department of Revenue for deposit in the state’s general revenue fund. At trial, the Public Defender for Palm Beach County testified that fees total $668 for every felony defendant who is represented by a public defender. See Tr. at 284. Examples of the fees and costs included in that figure are “costs associated for a Court Cost Clearing Trust Fund,” a “local ordinance cost,” and “a Crime Stoppers Trust Fund fee.” Id. at 287. The Public Defender for Miami-Dade County similarly testified that defendants in his jurisdiction are typically assessed between $700 and $800, a sum which includes, among other things, fees that fund programs like “Crime Stoppers,” “teen courts,” “crime prevention programs,” the “Criminal Justice Trust and Education Fund,” and
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“additional court costs that go to the local courts, including $65 court costs.” Id. at 355–56.
The majority says that these fees and costs are penalties, and not fines, because they are linked to culpability and are not imposed on defendants who are acquitted. See Maj. Op. at 33. Although they are also imposed on those who plead no contest and/or have their adjudication of guilt withheld, the majority emphasizes that under Florida law defendants who withhold their adjudication or plead no contest may be subject to punishment. See id. at 33–34. The majority’s contention that these fees and costs are punitive, however, is belied by the fact that they bear no relation to the crimes charged, as “a defendant adjudged guilty of a violent offense ordinarily is assessed the same amount as a defendant who is charged with a comparatively minor nonviolent offense, denies guilt, pleads no-contest, and is not adjudged guilty.” Jones II, 2020 WL 2618062, at *29. And, as noted earlier, we are not bound by Florida’s own characterization of these fees and costs. See Macallen, 279 U.S. at 625.
But even if there is some incidental punitive purpose for these fees and costs, that does not change the undeniable fact that their primary purpose is the raising of revenue. And Supreme Court precedent tell us that it is the primary purpose that matters. See Bailey v. Drexel Furniture Co., 259 U.S. 20, 38 (1922) (“Taxes are occasionally imposed in the discretion of the Legislature on proper subjects with the
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primary motive of obtaining revenue from them and with the incidental motive of discouraging them by making their continuance onerous. They do not lose their character as taxes because of the incidental motive.”) (emphasis added). In Bailey, for example, the Supreme Court analyzed whether a child labor tax law, which imposed a purported “tax” on certain businesses if they employed children in violation of the law, involved a tax or a penalty. The Court concluded that the “exaction” was a penalty, rather than a tax, because the primary purpose of the payment was “practically to achieve” the result of outlawing child labor. See id. at 38–41. The exaction there was the “principal consequence” of violating the child labor law, demonstrating that it was really a penalty for violations. See id. at 38.
In contrast, the fees and costs here do not aim to outlaw any behavior. Nor are they the principal consequence for committing a felony offense—imprisonment, fines, and restitution serve that purpose. The fees and costs here serve primarily to raise revenue for the state, and therefore are taxes. See Bredesen, 624 F.3d at 770– 74 (Moore, J., dissenting) (explaining that a 5% administrative fee tacked on to child support and restitution payments constituted a tax under the Twenty-Fourth Amendment); Cammett, Shadow Citizens, 117 Penn. St. L. Rev. at 379 (“[P]ublic cost-recovery fees reflect the efforts of states to pass the costs of criminal justice and other state deficits onto prisoners.”). As one of the amici correctly explain, “[t]he mere fact of antecedent criminal conviction does not change a ‘tax’ to something
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else.” Amicus Br. of Tax & Constitutional Law Professors at 13 (noting that if hypothetically Florida imposed an income tax of 10% on individuals convicted of crimes, and prohibited felons from voting if they failed to pay the tax, that would violate the Twenty-Fourth Amendment). I could not have put it any better.
C Several colleagues in Part III.B.2 advocate for a narrow reading of the Twenty-Fourth Amendment by arguing that the phrase “by reason of” in the Amendment are different in meaning than the phrase “on account of” in the Fifteenth, Nineteenth, and Twenty-Sixth Amendments. See Maj. Op. at 36–51 (explaining that “on account of” reflects a “but-for-causation” test, but “by reason of” requires “a tighter relationship between nonpayment of a tax and denial of the right to vote than but-for causation” and instead means “motivated by”). As Part III.B.2 does not even garner a plurality of the judges in the majority, I am unsure why this linguistic exegesis is necessary. But given the number of pages dedicated to this contention, I will take a moment to point out its deficiencies. A straightforward textual analysis shows that “by reason of” has the same meaning as “on account of.” Indeed, our colleagues acknowledge that dictionaries from the time the Twenty-Fourth Amendment was drafted define the phrases “by reason of” and “on account of” by reference to each other. See Maj. Op. at 39–40. See also Webster’s Third New International Dictionary of the English Language 13
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(1961) (defining “on account of” as “for the sake of: by reason of: because of”) (emphasis added). But rather than confront the inevitable conclusion—that the two phrases are synonymous—our colleagues instead say that this means the dictionary definitions “are of limited value.” Maj. Op. at 39. What they are saying, I think, is that they do not like the result of a simple textual analysis, and therefore feel free to go beyond the text’s common understanding because that understanding is not helpful to their position. If that is textualism, textualism is a mirage.
This analytical move is surprising given the current emphasis placed on public understanding of the words used in constitutional text. See, e.g., District of Columbia v. Heller, 554 U.S. 570, 576 (2008) (“In interpreting this text [of the Second Amendment], we are guided by the principle that ‘[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.’”) (quoting United States v. Sprague, 282 U.S. 716, 731 (1931)); Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts § 6, at 69 (2012) (“Words are to be understood in their ordinary, everyday meanings—unless the context indicates that they bear a technical sense.”). As noted, dictionaries from around the time the Twenty-Fourth Amendment was ratified do provide a helpful definition of “by reason of,” demonstrating that it means “because of.” See Webster’s New Twentieth Century Dictionary of the English Language 1502 (2d ed. 1963) (defining “by reason
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of” as “because of”). And “where the intention i[s] clear [from the text of a
constitutional provision] there is no room for construction and no excuse for interpolation or addition.” Sprague, 282 U.S. at 731.13
Rather than rely on these consistent definitions of the phrase “by reason of,”
our colleagues isolate the word “reason” and then select a definition of that one word
to define the entire phrase. See Maj. Op. at 48–49. But “reason,” when used in a
phrase, cannot be read in isolation because the “text must be construed as a whole.”
Scalia & Garner, Reading Law § 24, at 167. See also Smith v. United States, 508
U.S. 223, 233 (1993) (“[A] single word cannot be read in isolation[.]”); King v. St.
Vincent’s Hosp., 502 U.S. 215, 221 (1991) (“Words are not pebbles in alien
juxtaposition; they have only a communal existence; and not only does the meaning
of each interpenetrate the other, but all in their aggregate take their purport from the
setting in which they are used. . . .”) (citations and internal quotation marks omitted).
“Phrases are not always (though they are sometimes) mere sums of their parts. One
cannot necessarily determine the meaning of establishment of religion by simply
looking up the founding-era definitions of establishment, of, and religion, just as one
13 Modern dictionaries likewise reflect that “on account of” and “by reason of” both mean “because of.” See Webster’s Dictionary of English Usage 687 (1989) (“On account of is commonly used as a compound preposition equivalent to because of . . . On account of was first recorded in this use in 1792, and has long been established as standard in both British and American English.”); Bryan A. Garner, Garner’s Modern American Usage 121 (2003) (“by reason of is usually an artificial way of saying because of”); The American Heritage Dictionary of the English Language 11 (5th ed. 2018) (defining “on account of” as “Because of; for the sake of”). See also id. at 1465 (defining “by reason of” as “[b]ecause of”).
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cannot determine the communicative content of the phrases at all or for good through the amalgamation of the meaning of the words in those phrases.” Stephanie H. Barclay, Brady Earley, & Annika Boone, Original Meaning and the Establishment Clause: A Corpus Linguistics Analysis, 61 Ariz. L. Rev. 505, 528–29 (2019). After all, “even the strictest textualist would acknowledge that the meanings of the words and sentences in a statutory text are a function of their usages within a linguistic community.” Bradley C. Karkkainen, “Plain Meaning”: Justice Scalia’s Jurisprudence of Strict Statutory Construction, 17 Harv. J.L. & Pub. Pol’y 401, 407 (1994).
Our colleagues next lean on a canon of construction that says courts can infer a different meaning if Congress has chosen to use different words in the same document (here, apparently, the Constitution). See Maj. Op. at 41. See generally Crawford v. Burke, 195 U.S. 176, 190 (1904) (“a change in phraseology creates a presumption of a change in intent”). Whatever its relevance elsewhere, that canon is of no assistance in this case. There can be no inference or presumption of a contrary intent when, as here, the different phrases used are synonymous with one another, i.e., when they have the same meaning. Given that our colleagues have offered nothing to explain the choice of the phrase “by reason of” in the TwentyFourth Amendment, that “word change as easily supports the inference that Congress merely swapped one synonym for another.” Milner v. Dep’t of Navy, 562
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U.S. 562, 572 (2011). Accord Public Citizen, Inc. v. U.S. Dep’t of H.H.S., 332 F.3d 654, 665 (D.C. Cir. 2003) (“[I]n this case, Congress’ use of slightly different words to describe various reporting requirements shows little more than the legislature employed a modestly varied vocabulary to express similar meanings.”). Justice Holmes’ quip that “there is no canon against using common sense in construing laws as saying what they obviously mean,” Roschen v. Ward, 279 U.S. 337, 339 (1929), seems apropos here, as “by reason of” and “on account of” mean exactly the same thing.
I also disagree with our colleagues’ claim in Part III.B.2 that Harman supports their narrow construction of the Twenty-Fourth Amendment. As noted earlier, in Harman the Supreme Court invalidated a Virginia law that required voters to either pay a poll tax or annually file a certificate of residency in order to vote in federal elections by broadly construing the Twenty-Fourth Amendment. See 380 U.S. at 541–44. Analogizing the Twenty Fourth Amendment to the Fifteenth Amendment, the Supreme Court explained that “the Twenty-Fourth Amendment does not merely insure that the franchise shall not be ‘denied’ by reason of failure to pay the poll tax; it expressly guarantees that the right to vote shall not be ‘denied or abridged’ for that reason. Thus, like the Fifteenth Amendment, the Twenty-fourth ‘nullifies sophisticated as well as simple-minded modes’ of impairing the right
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guaranteed.” Id. at 540–41 (citation omitted). Harman constitutes an expansive interpretation of the Twenty-Fourth Amendment, not a narrow one.
Given the analogy in Harman to the Fifteenth Amendment, I struggle to understand our colleagues’ view that the Twenty-Fourth Amendment requires a “tighter relationship between nonpayment of a tax and denial of the right to vote than but-for causation.” Maj. Op. at 47. Though the Supreme Court in Harman did not specifically analyze the phrase “by reason of,” its holding suggests that the phrase imports some type of causation—as the Court invalidated a non-monetary requirement imposed on voters who refused to pay the poll tax. See 380 U.S. at 541. A three-judge district court in our circuit, interpreting the Twenty-Fourth Amendment shortly after its passage, also seemed to view “by reason of” as embodying a but-for test. See Gray v. Johnson, 234 F. Supp. 743, 746 (S.D. Miss. 1964) (invalidating a state law that required an elector who was exempt from the payment of a poll tax to obtain an exemption certificate and hold the certificate as a condition for voting because such “onerous requirements are occasioned solely by reason of the failure of the registered voter to pay his poll tax”).14
14 The other cases that our colleagues rely on in Part III.B.2—Crawford, 553 U.S. at 204, and Gonzalez, 677 F.3d at 407—do not support their view. See Maj. Op. 48. Crawford does not analyze the Twenty-Fourth Amendment, but instead evaluates whether a statute requiring voters to present photo identification violates the Fourteenth Amendment. As mentioned earlier, the Crawford plurality noted that the statute would not pass muster under Harper if the state “required voters to pay a tax or a fee to obtain a new photo identification,” but the state issued free photo identification cards. See 553 U.S. at 198. In Gonzalez, the Ninth Circuit determined that requiring
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The Supreme Court in Harman, moreover, described the history of the Twenty-Fourth Amendment, and that history suggests that it was intended to prohibit disenfranchisement based on poverty: “Prior to the proposal of the Twenty-fourth Amendment in 1962, federal legislation to eliminate poll taxes, either by constitutional amendment or statute, had been introduced in every Congress since 1939. . . . Even though in 1962 only five States retained the poll tax as a voting requirement, Congress reflected widespread national concern with the characteristics of the tax.” Id. at 538–39. Specifically, “Congressional hearings and debates indicate a general repugnance to the disenfranchisement of the poor occasioned by the failure to pay the tax.” Id. at 539 (emphasis added). “In addition, and of primary concern to many, the poll tax was viewed as a requirement adopted with an eye to the disenfranchisement of Negroes and applied in a discriminatory manner.” Id. at 540. “It is against this background that Congress proposed, and three-fourths of the States ratified, the Twenty-Fourth Amendment abolishing the poll tax as a requirement for voting in federal elections.” Id.15
voters to provide identification at the polls did not constitute a tax or impose a material burden on voters for refusing to pay a tax, and thus did not violate the Twenty-Fourth Amendment. See 677 F.3d at 407–08. Gonzalez, however, did not analyze the phrase “by reason of.” 15 Though the Twenty-Fourth Amendment outlaws financial barriers to voting in federal elections, as discussed earlier, the Supreme Court invalidated the imposition of a poll tax on state elections in Harper under the Equal Protection Clause. See Harper, 383 U.S. at 666–67.
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Legislative history further shows that supporters of the Twenty-Fourth Amendment understood it as a broad directive. See Amicus Br. of Tax & Constitutional Law Professors at 3–6 (outlining legislative history); Amicus Br. of Voting Rights Scholars at 10–12 (same); Bredesen, 624 F.3d at 773–75 (Moore, J., dissenting) (same). For example, in a report recommending the passage of the joint resolution proposing the Twenty-Fourth Amendment, the House Committee on the Judiciary stated that “[t]he purpose of this proposed constitutional amendment is to prevent the United States or any State from denying or abridging the right of citizens of the United States to vote . . . because of an individual’s failure to pay any poll tax or other tax.” H.R. Rep. No. 87-1821, at 2 (1962) (emphasis added). The report further states that the Amendment would “prevent both the United States and any State from setting up any substitute tax in lieu of a poll tax as a prerequisite for voting” and “prevent[ ] the nullification of the amendment’s effect by a resort to subterfuge in the form of other types of taxes.” Id. at 5.
In floor debates, Representative Neil Gallagher of New Jersey said that “[a]ny charge for voting unjustly discriminates against people of limited means. And whatever the amount of money, a citizen of the United States should not have to pay for his constitutional right to vote.” 108 Cong. Rec. 17667 (1962). Representative Dante Fascell of Florida expressed a similar view: “[T]he payment of money, whether directly or indirectly, whether in a small amount or in a large amount, should
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never be permitted to reign as a criterion of democracy. There should not be allowed a scintilla of this in our free society.” 108 Cong. Rec. 17657 (1962). Representative Seymour Halpern of New York agreed: “This amendment will prevent the imposition not only of a poll tax but of any other tax as a prerequisite to voting and . . . it is broad enough to prevent the defeat of its objectives by some ruse or manipulation of terms.” 108 Cong. Rec. 17669 (1962). Representative Edward Boland of Massachusetts proclaimed that “[w]hile the amount of the poll tax now required is small, there should not be any price tag or any kind of tax on the right to vote.” 108 Cong. Rec. 17666 (1962). Representative Henry B. Gonzalez of Texas echoed that sentiment: “[t]here should not be any price tag or any other kind of tag on the right to vote.” Abolition of Poll Tax in Federal Elections: Hearing on H.J. Res. 404, 425, 434, 594, 601, 632, 655, 663, 670 & S.J. Res. 29 Before Subcomm. No. 5 of the H. Comm. on the Judiciary, 87th Cong., 2d Sess. 15 (1962).
News reports from around the time the Twenty-Fourth Amendment was ratified also confirm its expansive understanding. Senator Spessard Holland of Florida, who introduced the Amendment in the Senate, told the Miami Herald that he “believe[d] fervently that no price should be placed on the right to vote, and that the South ‘needs so badly to be in an affirmative position on civil rights.’” David Kraslow, “Poll Tax Fate Could be Decided This Year,” Miami Herald, Jan. 28, 1963, at 17. President Lyndon B. Johnson remarked upon the Amendment’s passage that
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“there can be no one too poor to vote.” See Nan Robertson, “24th Amendment Becomes Official; Johnson Hails Anti-Poll Tax Document at Ceremonies,” N.Y. Times, Feb. 5, 1964, at 14.
The fees and costs Florida imposes “exact[ ] a price for the privilege of exercising the franchise.” Harman, 380 U.S. at 539. That is exactly what the framers of the Twenty-Fourth Amendment sought to prevent. See Bredesen, 624 F.3d at 775 (Moore, J., dissenting) (“The drafters and supporters of the TwentyFourth Amendment plainly intended that the Amendment reach those payments of money that placed a price on the franchise, regardless of whether those taxes could also be characterized as debts or fees.”); Ryan A. Partelow, The Twenty-First Century Poll Tax, 47 Hastings Const. L.Q. 425, 458 (2020) (“Once distilled, the principles at issue in both Harman and the legislative history of the Twenty-Fourth Amendment evidence that LFO disenfranchisement is plainly within the meaning of the [A]mendment’s text as drafted by its framers.”).16
16 Our colleagues further assert in Part III.B.2 that “the Twenty-Fourth Amendment has never been understood to prohibit States from disenfranchising tax felons[.]” Maj. Op. at 47. Yet the very commentator they cite concludes that “the Twenty-Fourth Amendment’s plain language precludes states from disenfranchising tax felons for federal elections,” and that “the disenfranchisement of tax felons is facially unconstitutional under the Twenty-Fourth Amendment.” Sloan G. Speck, “Failure to Pay Any Poll Tax or Other Tax”: The Constitutionality of Tax Felon Disenfranchisement, 74 U. Chi. L. Rev. 1549, 1551, 1569 (2007). Only by proposing an “extratextual” analysis—a “preliminary frame”—can that commentator opine that tax felons can be disenfranchised. See id. at 1580.
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As in Harman and Gray, the fees and costs here impose a material burden on voting. See Harman, 380 U.S. at 541; Gray, 234 F. Supp. at 746. “By the time of sentencing, Floridians with felonies are typically assessed at least $500 in mandatory fees and costs, though the precise amount varies by county even for the same underlying felony offense.” Amicus Br. of the Fines and Fees Justice Center, et al., at 6. Paying hundreds of dollars in fees and costs is an “onerous” burden to those with limited means, see Harman, 380 U.S. at 541, and 70 to 80 percent of Florida felons are indigent. They should not be forced to choose between “putting food on the table, a roof over their heads, and clothes on their backs,” Jones I, 950 F.3d at 811—or paying fees that Florida uses to fund government operations—in order to exercise the right to vote granted to them by Amendment 4.
V Our predecessor, the former Fifth Circuit, has been rightly praised for its landmark decisions on voting rights in the 1950s and 1960s. See generally Jack Bass, Unlikely Heroes: The Dramatic Story of the Southern Judges Who Translated the Supreme Court’s Brown Decision Into a Revolution for Equality 259–77 (1981). I doubt that today’s decision—which blesses Florida’s neutering of Amendment 4— will be viewed as kindly by history.
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JILL PRYOR, Circuit Judge, joined by WILSON, MARTIN, and JORDAN, Circuit Judges, dissenting.
Nearly a century has passed since Langston Hughes pined for an America where “opportunity is real” and “[e]quality is in the air we breathe.”1 In Florida, people convicted of felonies who have paid all the societal debts they can possibly pay were on the threshold of that America, welcomed home by Florida’s electorate. Florida’s voters had decided on their own initiative that the franchise should be restored to their fellow citizens. But Florida’s legislature slammed the door shut, barring perhaps a million would-be voters from any real and equal opportunity to rejoin their fellow Floridians and denying the electorate their choice to grant that opportunity. The legislature’s action abrogated the protections of the Fourteenth and Twenty-Fourth Amendments on the right to vote, as Judge Martin and Judge Jordan eloquently explain in their dissents. I join their dissents in full. I write separately only to add context and echo the outrage of my fellow dissenting colleagues.
Following a nationwide trend toward reenfranchisement,2 Florida’s voters amended their state’s constitution to provide that except for people convicted of

1 Langston Hughes, Let America Be America https://www.poetryfoundation.org/poems/147907/let-america-be-america-again.

Again,

2 Jones v. Governor of Fla., 950 F.3d 795, 801 (11th Cir. 2020). Reenfranchisement of people convicted of felonies who have served their sentences enjoys broad support, from the American Civil Liberties Union to the American Probation and Parole Association (APPA), a

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murder or a sexual offense, “disqualification from voting arising from a felony conviction shall terminate and voting rights shall be restored upon completion of all terms of sentence including parole or probation.” Fla. Const. art. VI, § 4 (emphasis added). Widespread media coverage of Amendment 4, a citizen’s initiative, estimated that it would restore voting rights to over one million Florida citizens who have served their sentences and fulfilled all conditions of their parole and probation.
Florida’s formerly disenfranchised citizens began registering to vote on January 8, 2019, when Amendment 4, known as the Voting Restoration Amendment, went into effect. In a matter of weeks, though, Florida’s legislature was “aiming at a bill [interpreting Amendment 4] that had a maximal disenfranchisement result.” Doc. 286-13 at 13, 88–94 (expert report of J. Morgan Kousser, Ph.D., citing, among other evidence, legislators’ statements, competing House and Senate bills introduced in response to Amendment 4, and the known lack of a central data repository tracking legal financial obligations); cited with approval in Jones v. DeSantis (“Jones II”), No. 4:19-cv-300-RH/MJF, __ F. Supp.
nonprofit organization counting as members over 1,700 individual probation or parole officers and more than 200 probation and parole agencies. The APPA advocates for “restoration of voting rights upon completion of an offender’s prison sentence.” En Banc Br. of Amici Curiae Am. Probation & Parole Assoc. at 8–9. Police officers, too, have advocated for rights restoration because reintegration of formerly incarcerated people reduces recidivism. See En Banc Br. of Amici Curiae the District of Columbia et al. at 16–17.
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3d __, 2020 WL 2618062 (N.D. Fla. May 24, 2020). Senate Bill 7066 defined “all
terms of sentence” to include fees, fines, and restitution ordered upon conviction of
a felony. With the passage of SB 7066 into law as Florida Statutes § 98.0751, the
legislature3 conditioned every person’s ability to vote under Amendment 4 on the
payment of sums of money—what we call legal financial obligations, or LFOs.
Florida characterizes § 98.0751 as the legislature’s necessary attempt to tie
up loose ends of Amendment 4. But that characterization greatly downplays the
statute’s impact. The statute denies the franchise to “the overwhelming majority”
of people who stood to benefit from Amendment 4.4 Jones II, 2020 WL 2618062,
3 I use “the legislature” here to refer to the majority that passed SB 7066. The bill passed both houses of Florida’s legislature “on a straight party-line vote. Without exception, Republicans voted in favor, and Democrats voted against.” Jones II, 2020 WL 2618062 at *32.
4 Despite evidence suggesting that voters were unaware that Amendment 4 would require payment of all restitution, fines, and fees accompanying a sentence before voting rights would be restored, Florida vehemently rejects any suggestion that “all terms of sentence” in Amendment 4 could be understood to exclude LFOs. The State relies on the Florida Supreme Court’s holding that “all terms of sentence” included LFOs. See Advisory Op. to the Governor Re: Implementation of Amendment 4, the Voting Restoration Amendment, 288 So. 3d 1070 (Fla. 2020). And it emphasizes that proponents of Amendment 4 represented to the Florida Supreme Court in an earlier proceeding to secure Amendment 4’s spot on the ballot that financial obligations were a “term[] of sentence.” But whether voters believed that LFOs were part of the sentence that must be completed before voting rights would be restored is largely beside the point. Florida’s arguments do not convince me on what I see as the real question, whether voters who passed Amendment 4 thought it would function the way SB 7066 made it function.
When it comes to this question, Florida has offered no evidence that voters believed a person who was genuinely unable to pay his LFOs would be denied the franchise. Denying reenfranchisement to people who can prove that they are truly unable to pay would not serve the purposes of the sentence completion requirement because they will have paid their debt to society insofar as they are able. Indeed, when it decided the meaning of “all terms of sentence” the Florida Supreme Court “did not address what ‘completion’ of these amounts means.” Jones II, 2020 WL 2618062, at *6 (citing Advisory Op., 288 So. 3d at 1074–75). Those who are genuinely unable to
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at *16; see Jones v. Governor of Fla. (“Jones I”), 950 F.3d 795, 815 (11th Cir. 2020) (detailing an expert’s opinion that over 80 percent of people “with felony convictions who had completed their terms of incarceration, parole, or probation . . . had outstanding LFOs”). The statute may in effect deny the franchise to virtually everyone who may have benefitted from the amendment. And it accomplishes this end seemingly by design.
The legislators who supported § 98.0751 knew—or at best were willfully blind to the fact that—the statute would completely deprive a large majority of Floridians with felony convictions of voting rights restoration. LFOs often are substantial—even in cases where the defendant is indigent. The record reflects that since 1996 Florida had added more than 20 new categories of financial obligations for people convicted of crimes, with virtually no exemptions for people unable to pay.5 These financial obligations often are untethered from the seriousness of the offense. As Judge Jordan points out, Florida assesses $225 against every person

pay the balance of their LFOs have “completed” all terms of their sentences that they can. As Judge Jordan explains, the Constitution prohibits denying the franchise based on inability to pay— and we should not presume that the voters intended an unconstitutional result. Moreover, is it reasonable to conclude that Florida’s voters thought when they passed Amendment 4 that it would deny the franchise to the overwhelming majority of Floridians who ever had a felony conviction? I don’t think it is.

5 Rebekah Diller, Brennan Center for Justice, The Hidden Costs of Florida’s Criminal

Justice

Fees

5–7

(2010)

(“Brennan

Center

Report”),

https://www.brennancenter.org/sites/default/files/2019-08/Report_The%20Hidden-Costs-

Florida's-Criminal-Justice-Fees.pdf.

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convicted of a felony. See Jordan Dissent at 114 (citing Fla. Stat. § 938.05(1)(a)). Some financial obligations are actually imposed based on indigency: For example, Florida charges $50 to apply for a public defender, a constitutionally-required service for which only indigent defendants qualify.6 See Gideon v. Wainwright, 372 U.S. 335 (1963). In this topsy-turvy system, the district court found, “in one county, the fees total at least $698 for every defendant who is represented by a public defender and at least $548 for every defendant who is not.” Jones I, 950 F.3d at 816 (quoting district court’s preliminary injunction order). That county is not an outlier. One expert who compiled data from 58 of 67 Florida counties calculated that, of “individuals with felony convictions who had completed their terms of incarceration, parole, or probation,” nearly 60 percent had outstanding LFOs of at least $500, and nearly 40 percent had at least $1,000 outstanding. Id. at 815; see id. (calling the expert’s analysis “arguably a conservative one”).
The district court found “as a fact that the overwhelming majority of felons who have not paid their LFOs in full, but who are otherwise eligible to vote, are genuinely unable to pay the required amount.” Jones II, 2020 WL 2618062, at *16. Florida does not dispute this factual finding.
6 Brennan Center Report at 6. Florida does not waive the fee even if an applicant is found to be indigent and therefore entitled to a public defender. Id. at 7; see generally Fla. Stat. § 27.52(1)(b).
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Neither the extent of LFOs nor the inability of Floridians with felony
convictions to pay them was a mystery to Florida’s legislature. Of course, it was
the legislature that imposed many if not most of the financial obligations Floridians
with felony convictions shoulder. See, e.g., Fla. Stat. §§ 938.03 (imposing
mandatory fee of $50 to fund the Crimes Compensation Trust Fund and clerk of
court’s office); 938.06 (imposing a fee of $20 for the Crime Stoppers Trust Fund).
And there can be no doubt that the sponsors of SB 7066 and the legislators who
voted for it knew that most criminal defendants are indigent—such data was part of
the legislative record.7 In short, the legislators knew8—or deliberately shut their
eyes to9—both the extent of the financial obligations Florida courts impose and the
7 See, e.g., H.R. Staff Analysis, H.B. 1381, Reg. Sess. (Fla. 1998), http://archive.flsenate.gov/data/session/1998/House/bills/analysis/pdf/HB1381S1Z.CP.pdf; see also Doc. 360-48 (Florida Court Clerks and Comptrollers data explaining “minimal collections expectation” for more than two-thirds of all fines and fees levied from 2013–2018 due to indigency).
8 SB 7066 was not the only bill relating to Amendment 4 that the legislature considered, and an alternate proposal that was rejected highlights the legislature’s knowledge of SB 7066’s impact. Florida law provides that a sentencing court may convert LFOs to civil liens when defendants cannot pay them. See Fla. Stat. § 938.30(6)–(9), see Jones II, 2020 WL 2618062, at *4 (explaining that civil liens are “often use[d] for obligations a criminal defendant cannot afford to pay”). The legislature considered a bill that would have allowed indigent people to regain their voting rights under Amendment 4 because it would have allowed those whose LFOs had been converted to civil liens to register. Ultimately, though, the legislature rejected that proposal in favor of SB 7066, which contains no such exception. See Jones II, 2020 WL 2618062, at *31 (describing SB 7086).
9 As an example of willful blindness, “[r]epeatedly during the debates over what became S.B. 7066, [one of its sponsors] repeated that he did not want to see any data about how many people would be affected by S.B. 7066.” Doc. 286-13 at 12 (Kousser expert report); see id. at 80– 82 (describing how SB 7066’s sponsor repeatedly denied any interest in whether the bill was unfair to poorer Floridians; he told a fellow representative, “as I have addressed numerous times, I
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fact that most people convicted of felonies in Florida genuinely cannot afford to pay these obligations.
Section 98.0751 expressly conditions reenfranchisement on payment of LFOs, which the vast majority of Floridians with felony convictions cannot pay. Under the statute, Amendment 4 is a nullity for most people who stood to benefit from it.
In practice, though, even those who could afford to pay LFOs, people the electorate undeniably intended to reenfranchise with Amendment 4, may be denied that opportunity. That’s because the Florida legislature also knew when it passed SB 7066 that administering the law would be a bureaucratic nightmare. See Jones II, 2020 WL 2618062, at *16–26 (detailing Florida’s “staggering inability to administer the pay-to-vote system”). The bill’s sponsor “openly admitted that Florida did not have a centralized system in place [to track LFOs] and that it would be very difficult for the state agencies to perform the tasks that they were somehow supposed to after S.B. 7066 went into effect.” Doc. 286-13 at 13 (Kousser expert report). The legislature “repeatedly discussed” the fact that “it would take eleven databases, stored in different agencies, in addition to restitution information that often no one at all kept track of, to determine whether someone had fulfilled all of
intentionally wanted to stay blind to the data” regarding the number of people SB 7066 would prohibit from voting because they could not afford to pay LFOs).
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his financial obligations.” Id. “The legislature knew that the more information— restitution plus fines plus fees plus court costs—they piled into the bill’s requirements, . . . the more likely it would be that the task could never be completed—by staffers or returning citizens.” Id. at 13–14 (emphasis added). If it is that difficult for the State of Florida to determine how much, if anything, a person owes, imagine how difficult it must be for the average person trying to find out if he is eligible. The district found that in some cases it is “impossible.” Jones II, 2020 WL 2618062, at *6.
Based on information provided by the State itself, the district court found that Florida has made no real effort to help its citizens figure out how much, if anything, they must pay to vote. The budget analysis for SB 7066 projected a need for 21 additional Department of State employees to process the increased workload. Yet the legislature allocated no funds for additional employees. The Department hired no one—that’s right, not a single person—to process the over 85,000 registration applications it had received before trial.10 By April of 2020, when the trial was held, Florida’s officials had not completed review of even one of these applications. By Florida’s most optimistic estimates, the time it will take
10 On the eve of trial, the Florida Department of State “entered into an interagency agreement with the Florida Commission on Offender Review,” a department that “apparently will provide staffing assistance.” Jones II, 2020 WL 2618062, at *24. Florida offered no evidence that its partnership with the Commission would speed up the review process, however. See id.
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to review these applications to determine registrants’ eligibility to vote will deny even those who could afford to pay outstanding LFOs the right to vote in the next two presidential elections, not to mention half a dozen or more other elections.
So what we know is that Florida imposes substantial, often exorbitant, financial obligations on people convicted of felonies—the overwhelming majority of whom are indigent—with no exceptions for those unable to pay. The State doesn’t track LFOs and has no mechanism for providing people seeking to register under Amendment 4 with notice of what and how much, if anything, they owe.
Florida doesn’t seriously deny this. Instead, it responds that it’s just too bad if people can’t figure out on their own how much they owe, because the State has no obligation to tell them whether they’re eligible to vote under § 98.0751 or how much they would need to pay to get the right to vote back. And here’s the kicker: people aren’t entitled to know how much they owe, Florida says, because they couldn’t afford to pay it anyway. No harm, no foul. See Reply Br. of Appellants at 25–26 (“If [the district court’s] factual findings are correct, there is zero risk of improper deprivation of voting eligibility for the overwhelming majority of felons . . . because regardless of how much process is given to a felon who is unable to pay the financial terms of his sentence, that felon will remain ineligible to vote.” (citation omitted)). This cavalier attitude is hard to believe, yet there it is in the record of this case for all to see.
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From a potential Amendment 4 registrant’s point of view, she cannot vote unless she can (1) figure out on her own how much she owes, and then (2) pay that amount. For the reasons my dissenting colleagues and I have explained, it’s unlikely that she is capable of paying and perhaps even more unlikely that she is capable of figuring out how much she owes. So when she attempts to register, she must make her best guess that she has no unpaid LFOs—under threat of felony prosecution. Although Florida downplays this threat by noting that a person can only be prosecuted for an intentional false affirmation of eligibility, the record suggests that the threat may be more real than the State makes it out to be. See Jones II, 2020 WL 2618062, at *26 (discussing evidence showing Division of Election making referrals for prosecution for false registration when the only evidence of intent appeared to be a signed affirmation of eligibility). And regardless of the likelihood of an actual prosecution, the registration form warns the would-be registrant that it’s a felony to make a false statement on the form. It does not say that the false statement must be willful or intentional. What greater disincentive could there be for someone who has served her time than the threat of returning to prison for trying to register to vote? Section 98.0751 made registering to vote a risky, if not impossible, task. The impossibility of it seems to have been the whole point.
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In arguing this appeal, the State told us outright what it has been showing us all along: The State doesn’t care if “the proportion of felons able to complete their sentence” with LFOs included is “0%.” Reply Br. of Appellants at 15–16. If this is not a nullification of the will of the electorate, I don’t know what would be. And it is a dream deferred11 for the men and women who, having paid their debt to society to the extent of their capacity—often by having served lengthy prison sentences and periods under supervision—are deprived of the franchise that Amendment 4 promised to automatically restore. The majority today deprives the plaintiffs and countless others like them of opportunity and equality in voting through its denial of the plaintiffs’ due process, Twenty-Fourth Amendment, and equal protection claims. I dissent.
11 Langston Hughes, Harlem, https://www.poetryfoundation.org/poems/46548/harlem. 200

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20-12003 Jones v. Governor of Florida
ERRATA!
Please make the following two changes to Chief Judge Pryor’s concurring opinion on Page 61: 1) < LAGOA, Circuit Judge,> instead of <LAGOA, Circuit Judge> 2) <whoever comes to sit> instead of <whomever comes to sit>


[CONTENT] the fall of 2018 | Florida | the Florida Constitution |||  ||| June 28, 2019 | Ron DeSantis | Senate | Bill 7066 |||  ||| June and July 2019 | five ||| June 15 | June 28 | June 28 ||| June 28 | July 1 |||  ||| five | the United States | District Court | the Northern District | Florida | Mark Walker ||| June 30, 2019 ||| Walker | July 17, 2019 | one ||| Robert L. Hinkle ||| 19 | the League of Women Voters | Florida | the Orange County Branch | NAACP |||  ||| DeSantis | State | the Supervisor of Elections ||| SB7066 | the Ex Post Facto Clause | the United States | First | Eighth | Twenty-Fourth Amendments | the National Voter Registration Act | the Florida Constitution ||| the Brennan Center for Justice | the Campaign Legal Center | the Southern Poverty Law Center | ACLU | ACLU | Florida | the NAACP Legal Defense and Educational Fund ||| July 16, 2019 | April 7, 2020 ||| Florida |||  ||| the Florida Supreme Court | August 9, 2019 | SB7066 ||| January 16, 2020 | Florida |||  ||| August 15, 2019 | the Supervisors of Elections ||| the same day ||| October 18, 2019 | the Supervisor of Elections for Orange County |||  ||| State ||| 410 ||| 3d 1284 ||| The Eleventh Circuit | February 19, 2020 ||| 950 | 795 ||| late October | four | November ||| the first week of January 2020 ||| December 19, 2019 |||  ||| February 11, 2020 ||| The Eleventh Circuit | February 19 ||| 950 | 795 ||| March 30, 2020 | Ex Post Facto ||| the following week | April 7 | March 2020 ||| April 27 | May 6 | COVID-19 ||| May 24, 2020 ||| the National Voter Registration Act | Florida |||  |||  |||  |||  ||| 21 days |||  |||  ||| June 1, 2020 ||| June 14 ||| July 1 | the Eleventh Circuit | three |||  ||| The Supreme Court | Sotomayor | Ginsburg | Kagan ||| July 15, 2020 | Eleventh Circuit | 3 | 12 ||| Lagoa | Luck | the Florida Supreme Court | August 2019 | United States | Senate ||| Brasher | the Solicitor General | Alabama | Alabama ||| Brasher | July 21, 2020 ||| Lagoa | Luck | July 27, 2020 ||| The Eleventh Circuit | August 18, 2020 ||| September 11, 2020 | Constitutional ||| 1 | Equal Protection Clause | 2 | Twenty-Fourth Amendment | 3 | 4 ||| section 2 of the Fourteenth Amendment | the Supreme Court | Richardson | the Equal Protection Clause ||| Florida | Amendment 4 | Senate | Bill 7066 | the Equal Protection Clause |||  |||  |||  ||| the Twenty-Fourth Amendment |||  ||| Florida | Florida |||  ||| the Ninth Circuit | 20-12304 ||| June 19, 2020 ||| October 21, 2020 | 1 | a Nineteenth Amendment | 2 |||  [SUMMARY] In the fall of 2018, Florida voters amended the Florida Constitution, restoring voting rights to most people convicted of felonies “upon completion of all terms of sentence, including parole or probation.”  (This excluded people convicted of murder or sexual offenses.)  On June 28, 2019, Governor Ron DeSantis signed Senate Bill 7066 into law, defining “all terms of sentence” to include payment of all conviction-related restitution, fines, fees, and costs (“legal financial obligations”).  People who could not determine the amount of their obligations, or who could not afford to pay them, were effectively disenfranchised.

In June and July 2019, five lawsuits were filed challenging SB7066: 
<ul> <li>June 15, <i>Mendez v. DeSantis</i></li> <li>June 28, <i>Jones v. DeSantis</i></li> <li>June 28, <i>Raysor v. Lee</i></li> <li>June 28, <i>Gruver v. Barton</i></li> <li>July 1, <i>  McCoy v. DeSantis</i></li> </ul> All five suits, filed in the United States District Court for the Northern District of Florida, were assigned to Chief Judge Mark Walker.  Consolidated on June 30, 2019 for purposes of case management, they were ultimately tried together as a single consolidated case.  Chief Judge Walker recused himself on July 17, 2019, because his wife’s law firm had been retained to represent one of the defendants.  The consolidated case was reassigned to Judge Robert L. Hinkle.

The plaintiffs were 19 individuals, the League of Women Voters of Florida, the NAACP Florida State Conference, and the Orange County Branch of the NAACP.  Each group of plaintiffs advanced different legal theories and named different defendants.  Combined, the consolidated suit named as defendants Governor DeSantis, his Secretary of State, and the Supervisor of Elections for each county where an individual plaintiff resided.  The consolidated suit alleged that SB7066 violated the Ex Post Facto Clause of the United States Constitution; the First, Eighth, Fourteenth, and Twenty-Fourth Amendments; the National Voter Registration Act; and the Florida Constitution.  The plaintiffs, represented by the Brennan Center for Justice, the Campaign Legal Center, the Southern Poverty Law Center, the ACLU, the ACLU of Florida, the NAACP Legal Defense and Educational Fund, and private counsel, sought declaratory and injunctive relief restoring their voting rights.

In their amended complaint of July 16, 2019, the <i>Raysor</i> plaintiffs sought class certification (which was eventually granted on April 7, 2020).  The proposed class included “all persons who would be eligible to vote in Florida but for unpaid financial obligations.”  Class members asserting that they were “genuinely unable to pay” would form a subclass. 

The Governor petitioned the Florida Supreme Court on August 9, 2019 for an advisory opinion on the validity of SB7066.  The court’s <a href="https://www.brennancenter.org/sites/default/files/2020-01/Supreme%20Court%20Opinion.pdf">advisory opinion</a> of January 16, 2020 announced that the constitutional amendment’s language “all terms of sentence” would have been understood by Florida voters to include “all legal financial obligations imposed in conjunction with an adjudication of guilt.”  While awaiting this advisory opinion, the Governor unsuccessfully sought a stay of proceedings in the district court.

On August 15, 2019, the court denied the Supervisors of Elections’ motion to dismiss the case or to stay discovery.  The <i>Gruver</i> plaintiffs moved for a preliminary injunction the same day.  The injunction was granted on October 18, 2019, effective against all defendants except the Governor and the Supervisor of Elections for Orange County.  The injunction prohibited officials from taking any action to prevent the named plaintiffs from registering to vote (if they <i>asserted</i> inability to pay) or from voting (if they <i>demonstrated</i> their inability to pay).  Simultaneously, the court denied the Governor and the Secretary of State their motion to dismiss or abstain.  410 F. Supp. 3d 1284.  The Eleventh Circuit upheld on February 19, 2020.  950 F.3d 795.

The <i>Gruver</i> plaintiffs sought in late October to expand the preliminary injunction to cover four additional named plaintiffs who were seeking to vote in November municipal elections.  This motion was denied the first week of January 2020.

In the meantime, the district court partially stayed the injunction on December 19, 2019.  While still protecting the plaintiffs’ ability to <i>register</i>, the modified injunction did not guarantee their ability to <i>vote</i>.  This partial stay expired on February 11, 2020.  The Eleventh Circuit upheld the preliminary injunction on February 19, ruling that, among other things, the state’s pay-to-vote requirement should be analyzed under a standard of heightened scrutiny rather than rational basis review.  950 F.3d 795.
 
On March 30, 2020, the court denied the state defendants’ motion for summary judgment, but dismissed the plaintiffs’ abandoned Ex Post Facto and Florida Constitution claims.  The plaintiffs’ class certification motion was granted the following week, on April 7 (not in time for class members to vote in the March 2020 presidential primaries).

The trial was held from April 27–May 6 by videoconference (due to the COVID-19 pandemic). The court issued its opinion on the merits on May 24, 2020.  Ruling that the state was in violation of the Fourteenth and Twenty-Fourth Amendments and the National Voter Registration Act, the court declared Florida’s requirements unconstitutional as applied to: those who could not vote because they could not afford to pay; those who could not vote because the amount to pay was unknown and “cannot be determined with diligence”; and those who could not vote because they owed the state “fees” or “costs.”  However, a requirement to pay “fines and restitution…is not unconstitutional as applied to those who are able to pay.”  The court named each plaintiff and specifically declared his or her eligibility to vote.  It ruled that the plaintiffs in <i>McCoy</i>, <i>Raysor</i>, and <i>Gruver</i> could collect attorneys’ fees and costs (the plaintiffs in <i>Jones</i> and <i>Mendez</i> had not actively participated in the majority of the litigation).  

As to the class and the subclass, the court issued an injunction requiring the state to create and advertise a form for obtaining an individual advisory opinion on voting eligibility.  The injunction specified that if the state failed to respond to an individual submission within 21 days, the person would be automatically eligible to vote.  It further directed the state to publish requirements for voting eligibility following a felony conviction.

The court explicitly retained jurisdiction to enforce the declaration and injunction.

The state defendants appealed the ruling on June 1, 2020.  On June 14, the district court denied their motion to stay the ruling pending appeal.  On July 1, the Eleventh Circuit granted the state’s motion for initial hearing <i>en banc</i> (that is, before the entire court, rather than a panel of three judges).  Without explanation, it also granted a stay of the district court’s injunction, pending appeal.  The Supreme Court, also without explanation and over a dissent by Justices Sotomayor, Ginsburg, and Kagan, denied a request to lift the stay.

On July 15, 2020, the plaintiffs filed a motion in the Eleventh Circuit seeking to disqualify 3 of the court’s 12 judges from hearing the appeal.  Judges Lagoa and Luck had been justices of the Florida Supreme Court when it issued its advisory opinion in this case in August 2019; both had committed to the United States Senate that they would recuse themselves from cases in which they had previously played a role.  Judge Brasher, as the Solicitor General of Alabama, had vigorously <a href="https://www.clearinghouse.net/detail.php?id=15502">defended Alabama against a similar lawsuit</a> shortly before his appointment to the federal judiciary.

Judge Brasher disqualified himself on July 21, 2020, but denied the plaintiffs’ motion to disqualify as moot: he emphasized that he was recusing because of his chambers policy, not as a result of the plaintiffs’ motion.  Judges Lagoa and Luck denied the motion to disqualify on July 27, 2020.

The Eleventh Circuit heard oral arguments on August 18, 2020. On September 11, 2020, the court issued an opinion that reversed the judgment of the district court on the grounds that the plaintiffs failed to prove Constitutional violation. 

The court held that: (1) the amendment and the statute did not violate Equal Protection Clause; (2) the amendment and the statute did not violate Twenty-Fourth Amendment; (3) felon re-enfranchisement laws were not void for vagueness; and (4) the amendment and the statute did not deny the plaintiffs' rights to procedural due process. 

Because section 2 of the Fourteenth Amendment expressly allows for felon disenfranchisment, the Supreme Court had held in <i>Richardson v. Ramirez</i> that the Equal Protection Clause does not forbid it. Applying that precedent, the court held that Florida's Amendment 4 and Senate Bill 7066 did not violate the Equal Protection Clause under rational basis review. Additionally, the court held that because court costs and fees are legitimate parts of a criminal sentence, there was no basis to regard them as a tax. As such, the laws did not disenfranchise the individuals for failure to pay a tax, but rather because they had not "satisfied the demands of justice" as mandated by state statute. The state's justification for these voting requirements qualified as a constitutionally legitimate interest. Therefore the statutes satisfied the requirements of the Twenty-Fourth Amendment. Lastly, the criminal processes necessary for a conviction were sufficient to justify denying individuals the right to vote. The deprivation was a consequence of a felony conviction in Florida, so the court upheld Florida's conditional restoration of the right to vote.

The appeals court reversed the judgment of the district court and vacated the challenged portions of its injunction. Additionally, the Ninth Circuit severed and lifted the stay of the cross-appeal (Case No. 20-12304). This cross-appeal had been filed on June 19, 2020 by the plaintiffs in the <i>McCoy</i> case, which has been consolidated earlier in the litigation. 

On October 21, 2020, the plaintiffs in the <i>McCoy</i> case filed an opening brief for the cross appeal on the questions of (1) whether a Nineteenth Amendment claim requires proof of discriminatory intent and (2) the appropriateness of the test applied by the lower court to the equal protection claims, given that the plaintiffs in <i>McCoy</i> are women.

The case is ongoing.