United States District Court, N.D. Florida, Tallahassee Division
ORDER DENYING THE MOTION TO DISMISS OR ABSTAIN AND
GRANTING A PRELIMINARY INJUNCTION
L. Hinkle United States District Judge.
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
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.
Background: the Cases and the Pending Motions
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.
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.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.
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.
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.
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
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.
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
Background: Felon Disenfranchisement, Amendment 4, and
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.
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.
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.
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.
full text of section 4, with the new language underlined,
(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
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.
The Motion to Dismiss: Redressability
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 make no difference. See, e.g.,
Fla. Family Policy Council v. Freeman, 561 F.3d 1246
(11th Cir. 2009).
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.
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
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 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.
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.
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.
first of the two countervailing circumstances is that this is
a voting-rights 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
preliminary-injunction ruling in this court and appellate
review before the voting begins.
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.”).
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.
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.
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 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.
these reasons, this order denies the Secretary's motion
Does Amendment 4 Require Payment of Financial
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
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
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.
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.
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.merriam-webster.com/dictionary/term. 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.
other side, it is at least curious that Amendment 4 says
“including parole or probation” but not
“including fines and restitution.” At least
literally, “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.
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.
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, “I completed
my student loan” or “completed my car loan”
or “completed my credit-card account.”
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
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.
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.
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.
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.”
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 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.
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 registration
rate for felons who become eligible to vote is roughly 20%
and that, for Amendment 4, this would mean about 270, 000
people. 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.
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.
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 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
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.
Other Financial Obligations
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.
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. The fees are ordinarily the same whether a
defendant is adjudicated guilty or adjudication is
fees include $50 for applying for representation by a public
defender;$100 for actual representation by a public
defender; 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); $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 ...