Jones v. DeSantis

• Citation: 410 F.Supp.3d 1284
• Decision Date: 18 October 2019
• Docket Number: CONSOLIDATED CASE NO. 4:19cv300-RH/MJF
• Parties: Kelvin Leon JONES et al., Plaintiffs, v. Ron DESANTIS et al., Defendants.
• Court: U.S. District Court — Northern District of Florida

410 F.Supp.3d 1284

Kelvin Leon JONES et al., Plaintiffs,

v.Ron DESANTIS et al., Defendants.

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

United States District Court, N.D. Florida, Tallahassee Division.

Signed October 18, 2019

Michael A. Steinberg, Tampa, FL, Blair S. Bowie, Danielle Marie Lang, Jonathan Michael Diaz, Mark P. Gaber, Molly Elizabeth Danahy, Campaign Legal Center, Jennifer A. Holmes, NAACP Legal Defense and Educational Fund, Washington, DC, Chad W. Dunn, Brazil & Dunn, Daniel Boaz Tilley, Julie A. Ebenstein, ACLU Foundation of Florida Inc., Miami, FL, Jonathan Topaz, Rodkangyil Orion Danjuma, American Civil Liberties Union, David Morris Giller, Pietro John Signoracci, Paul Weiss Rifkind Etc, Eliza Sweren-Becker, Myrna Perez, Wendy Robin Weiser, Sean Morales-Doyle, Brennan Center for Justice at NYU School of Law, John Spencer Cusick, Leah Camille Aden, NAACP Legal Defense & Education Fund Inc., New York, NY, Jimmy Midyette, Jr., ACLU of Florida, Jacksonville, FL, Caren E. Short, Nancy Gbana Abudu, Southern Poverty Law Center, Decatur, GA, for Plaintiffs.

Colleen M. Ernst, Office of General Counsel, Joseph W. Jacquot, Nicholas Allen Primrose, Executive Office of the Governor, Ashley E. Davis, Bradley Robert McVay, Florida Department of State Office of General Counsel, Gary Vergil Perko, Mohammad Omar Jazil, Hopping Green & Sams PA, George N. Meros, Jr., Tara R. Price, George N. Meros, Jr., Tara R. Price, Holland & Knight LLP, Mark Herron, Summer Denay Brown, Messer Caparello & Self PA, Tallahassee, FL, Stephen Mark Todd, Office of the County Attorney, Tampa, FL, Corbin Frederick Hanson, Geena Marcela Cesar, Robert Charles Swain, Alachua County Attorney's Office, Gainesville, FL, Adam M. Katzman, Nathaniel Adam Klitsberg, Rene Devlin Harrod, Broward County Attorneys Office, Fort Lauderdale, FL, Craig Dennis Feiser, Office of General Counsel, Jacksonville, FL, Dylan T. Reingold, Indian River County, County Attorneys Office, Vero Beach, FL, Morgan Ray Bentley, Bentley & Bruning PA, Asarasota, FL, Michael Beny Valdes, Oren Rosenthal, Miami-Dade County Attorneys Office, Miami, FL, Nicholas Ari Shannin, Shannin Law Firm PA, Orlando, FL, for Defendants.

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

Robert L. Hinkle, United States District Judge

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 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 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.

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, 28 S.Ct. 441, 52 L.Ed. 714 (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.

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, 94 S.Ct. 2655, 41 L.Ed.2d 551 (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 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.

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...