How Some Florida Prosecutors Are Pushing Back Against GOP Voter Suppression Efforts

In January, an amendment to Florida’s constitution, passed through a ballot measure, came into force, restoring voting rights to more than a million people with felony convictions in their past. Since then, the Republican-led state government has pushed to erect obstacles to the re-enfranchisement of these Florida residents. Late last month, Gov. Ron DeSantis signed a law that restricted the restoration of civil rights to people with past felony convictions who did not owe any court fines or fees — a move that many have likened to a poll tax.

Now, prosecutors across the state of Florida are contemplating ways to work around the new Republican-imposed restrictions and implement the constitutional change while hewing to its original purpose: to give people the vote. State attorneys in at least three Florida counties, covering major cities like Miami and Tampa, are looking into the possibility of modifying the sentences of some indigent people with felony records, potentially by allowing them to do community service rather than pay off often cumbersome court costs.

Amendment 4 restored the civil rights of all people with felonies who have completed their sentences, except those convicted of murder or sex offenses, affecting an estimated 1.4 million people. It was the most significant expansion of voting rights since women won the right to vote in 1920. Though its proponents insisted the reform was a nonpartisan measure — indeed, it passed with 65 percent of the vote in an election in which a Republican won the governor’s race by a razor-thin margin of 0.4 percent — it is largely assumed that the prospective influx in voter registration will benefit Democrats in the critical swing state. Few observers, then, were shocked that the GOP-led legislature moved to quickly pass a law narrowing Amendment 4’s reach.

“I’ve always felt that the requirement to make ex-felons go through the difficult process of rights restoration was partly about voter suppression.”

“I’m not surprised that the legislature passed an implementing bill for Amendment 4,” said Palm Beach County State Attorney Dave Aronberg, whose office is trying to find a way to allow people with felony records to pay off their obligations to the court through community service. “I always knew that there would be pushback because I’ve always felt that the requirement to make ex-felons go through the difficult process of rights restoration was partly about voter suppression.”

Still, the returning citizens who spent a decade fighting to get their lifetime voting ban lifted say they’re not ready to give up just yet. “Big picture-wise, for us, where other people see obstacles, we see opportunity,” said Neil Volz, deputy director of the Florida Rights Restoration Coalition, which spearheaded the effort to get Amendment 4 passed last fall. “That is part of the heartbeat of this entire movement. It took us 10 years to get to last November, and we’re in this for the long haul. It’s not about politics, it’s about how you continue to overcome.”

Most court fines and fees in Florida are mandated by the state legislature, essentially creating a criminal justice system that is funded on the backs of the people who pass through it. When people with felonies fail to pay up, those costs can balloon from a few hundred dollars to hundreds of thousands. Not only do the fines now implicate voting rights, they can lead to drivers’ license suspensions and additional time behind bars.

The fines and fees imposed by the state frequently go unpaid — in Hillsborough County, the clerk of the court collected $15 million in court fines and fees from 2007 to 2017, less than 3 percent of the $500 million it had assessed — meaning that many people with felonies remain dogged by the run-ins with the law. What’s more, because the assessments are state-mandated, there’s little room for local officials, including judiciary officials, to affect the levels of the fees and fines.

“When those fines and fees are assessed initially, there’s not a whole lot of judicial discretion with most of them. There’s not a determination made as to whether a person is able to pay, what their income is, what their circumstances are,” said Ashley Thomas, Florida state director at the Fines and Fees Justice Center, which advocates for eliminating fees in the justice system. “These fines and fees are assessed without an analysis of whether the person could ever pay them.”

Miami-Dade State Attorney Katherine Fernandez Rundle gives a news conference in Miami, in July, 2017.

Would-be Florida voters need to act fast to be able to vote in Florida’s next statewide elections in 2020, with the presidential primary scheduled for March 17 and other primaries slated for August, ahead of the general election in November. The voter registration deadline for the presidential primary is February 18, giving groups interested in helping people register to vote about eight months to make it happen.

The majority of people with past felonies who are impacted by Amendment 4 are immediately eligible to vote, said Volz, whose group is currently focused on going into communities and encouraging civic engagement. “We basically remind everybody that the impact of Amendment 4 is intact, that the lifetime ban is history, and we’re now looking at a situation where we have about 800,000-plus who are immediately eligible, and about 500,000-plus who are not yet eligible because of financial obligations.”

Miami-Dade County State Attorney Katherine Fernandez Rundle has developed perhaps the most specific Amendment 4 implementation plan to date: It would include a streamlined case review system to help people who owe money they are unable to pay but are otherwise eligible, according to a draft her office shared with The Intercept. In Hillsborough County, a metropolitan area that includes Tampa, State Attorney Andrew Warren intends to set up a “rocket docket” to modify the sentences en masse.

“I agree with Amendment 4. I supported it. I voted for it. And now we have this gap in place where it’s up to localities to implement a process,” Warren said in an interview. “We’ve taken the reins of it here in Hillsborough County so we can do what we can to fulfill the promise of Amendment 4 as voters overwhelmingly approve.”

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The moves taken by the state attorneys came after a new law was passed by the legislature in May and signed by DeSantis on June 28. The law made the restoration of voting rights contingent upon the payment of court fines and fees included as part of a sentence, as well as restitution paid to the victim of a crime.

The statute allows for financial obligations to be converted into community service, noting that a completion of community service hours would render a financial obligation met. It also allows the court or victims, in the case of restitution, to waive their right to be paid.

Despite these avenues for relief, the statute complicated Amendment 4 implementation efforts, which include plans to help register voters, because there is no centralized database with information about who could be eligible to vote except for the fact that they owe money to the court. There are 20 judicial circuits in Florida, and the legislature’s failure to issue implementation guidance means that unless elected officials actively seek to help re-enfranchise those with felonies, many will likely get lost in the system.

The state attorneys who are pursuing means to help move toward full implementation of Amendment 4 hail from Democratic counties, among the handful of Florida jurisdictions that went to Hillary Clinton in 2016. The state attorneys are therefore less likely to face strong political backlash for pushing back against the GOP legislature, even as they try to secure bipartisan buy-in for their efforts.

Fernandez Rundle and Warren had been in talks about how to implement Amendment 4 even before the law was passed, though the restrictions imposed by the legislature made their efforts all the more important. Aronberg, the Palm Beach County state attorney, contacted Warren’s office after the Hillsborough County prosecutor floated the rocket docket idea in an interview with the local press.

“We’re trying to figure out a way to do all this,” Aronberg said, referring to the rocket docket idea. “What does that mean? What does that entail?” Last Tuesday, he attended a meeting with interested groups and government entities about Amendment 4. “We haven’t seen a plan yet and obviously we’d be interested to see what others are doing.”

In each jurisdiction, the state attorneys’ offices are in talks with key stakeholders whose cooperation would be critical to any sort of implementation plan. Those include the clerk of court, the public defender’s office, the supervisor of elections, the administrative office of the courts, and the Department of Corrections.

One thing the state attorneys are insistent upon is leaving in place the restrictions for those people with felonies who owe restitution to victims or their families.

“We keep victims in mind whenever we’re doing anything that can impact them. That’s why it’s lower-hanging fruit to address those ex-felons who have nonviolent drug offenses and they just owe court costs and fees,” Aronberg said. “You can move from there to other crimes until you get to victim crimes, and that would be a separate discussion.”

Meanwhile, the future of the new law restricting Amendment 4’s reach will likely be determined by the courts. Groups like the American Civil Liberties Union and the Southern Poverty Law Center have sued Florida election officials, alleging that the statute is unconstitutional and creates two classes of returning citizens: those who can afford voting rights and those who cannot.

Warren, who was elected in Hillsborough County in 2016 as a reform-minded prosecutor, was the first state attorney to react to the law restricting Amendment 4 by proposing a plan to allow indigent people with felony histories to complete community service in lieu of payment. The biggest hurdle, he said, is “identifying through data the universe of people who we can target for this rocket docket process.”

There are two approaches his office intends to take. The first is to ask people who believe they qualify — people who have completed their sentences, don’t owe restitution, but still owe the court money and are unable to pay it — to self-identify.

“If we determine that the person fits someone who has completed all those terms and is unable to pay, then through some finding of financial hardship, likely relying on whether the person had a public defender appointed for them when they went through the judicial process in the first place,” Warren said, “then we can include them in the expedited judicial process of the rocket docket.”

“It would be extremely cumbersome for people to do it individually, and it would bog down the courts. We want to do it in an efficient way that’s not taking up a lot of court time.”

The other, more difficult task is for the state attorney’s office, working with other government entities, to collect data and identify groups of people who meet the criteria. The clerk of court keeps information on the payment of money owed to the court, while the Department of Corrections tracks whether individuals have completed their sentences. Identifying whether an individual has paid restitution is more complicated, because those payments can be made privately or through the state attorney’s office. The public defender or an outside group like the Florida Rights Restoration Coalition, would then reach out to the identified individuals to inform them about the rocket docket process.

One reason the state attorney’s office is at the center of this effort, Warren said, is that the idea was borne out of conversations he had with the legislature about implementing Amendment 4, of which he was an early supporter. Another factor is that his prosecutor’s office can reopen a large number of cases to modify sentences.

“We are the one agency who has standing to go into all these cases and say, ‘Not just for John Smith’s case, but for these thousand cases, we are going to do it.’ Otherwise we’d force individual defendants to take the initiative individually, to navigate the process to be able to do it and reopen their cases,” Warren said. “It would be extremely cumbersome for people to do it individually, and it would bog down the courts. We want to do it in an efficient way that’s not taking up a lot of court time.”

While a rocket docket will help people make their way before a judge to get their fines cleared, people’s difficulties navigating the court system — even letting people know that they need to go into court to ask for a sentence modification —  remains a major hurdle. “Hopefully these rocket dockets will help lower the access-to-court burden, but there’s still the issue of making sure they are advised by counsel and many other issues that may come up,” said Thomas of the Fines and Fees Justice Center. “Sometimes people have cases in more than one jurisdiction, and looking at it holistically and looking at what their situation is and how it can be addressed is going to be tricky.”

In Miami-Dade County, Fernandez Rundle has developed a plan that, while narrower than what Warren has discussed, is the most specific proposal to date. Her office’s draft plan lays out a 12-step process that starts with helping people who have completed their sentences register to vote and leads to something it calls a “streamlined case review” for a modification of a sentence. The case review would help indigent former felons who have yet to pay off their court fines, fees, and costs, unless their sentences included restitution or probation.

“For some time now, State Attorney Katherine Fernandez Rundle has been exploring the existing legal complexities regarding the implementing of Amendment 4,” spokesperson Ed Griffith said in an emailed statement. “Given that any proposed plan to implement the restoration of voting rights will require the involvement of a number of governmental agencies and entities to actually start the process, an organizational blueprint must be in place to actually work.”

Fernandez Rundle’s office plans to work with the Florida Rights Restoration Coalition, which, according to the draft plan, will set up an online or telephone portal to collect information about ex-felons, their sentences, and their ability to repay the court. Legislative offices could also field requests for assistance, according to the plan. (The Florida Rights Restoration Coalition does not yet have a clear timeline for when such a portal might be ready, Volz said.)

The process laid out in Fernandez Rundle’s proposal would have the state attorney, public defenders, the Florida Rights Restoration Coalition, and legislators collaborate to bring attention to the plan through advertising; check people’s qualifications for the program through court clerks; double verify that no other obstacles such as disqualifying charges exist; and then finally appraise them of their standing under Amendment 4. Eligible people with past felonies who owe no fines and fees would be told to register; those with outstanding debts would complete a financial affidavit and work with the state attorney’s office to set the case for a streamlined case review.

In cases in which the public defender’s office did not previously represent the individual, they would refer the case to pro bono attorneys. The chief judge would appoint one person to handle streamlined case reviews, and the clerk’s office would work with the court to schedule regular days for that to happen.

Fernandez Rundle’s plan declares that streamlined case review should move along quickly because the initial stages of determining eligibility will already include public defenders and court clerks.

Some state attorneys have bristled at the notion of getting involved in the process. Bernie McCabe, the state attorney for Pinellas and Pasco counties, which border Hillsborough, has said the new law restricting Amendment 4 is in line with what the plan for restoring voting rights was all along. “I thought what they’ve got now is what they advertised,” McCabe told the Tampa Bay Times, of Amendment 4 supporters.

The office of Duval County’s Melissa Nelson, who was elected in 2016 on a reform platform, told The Intercept that implementation of Amendment 4 is not a current focus. In Orange County, which includes Orlando, the fourth-largest city in the state after Jacksonville, Miami, and Tampa, State Attorney Aramis Ayala said she could not independently make decisions about sentence modification.

“As State Attorney I remain focused on the pursuit of justice, and this includes the work necessary to eliminate barriers to reentry,” Ayala, who has implemented significant reforms since her 2016 election and does not intend to seek a second term, said in a statement. “Unfortunately, it is not up to me alone to make determinations regarding fines and fees; therefore, I want to avoid conversations that evoke premature hope. I am proud to stand with the many people dedicated to the research, brainstorming, and planning process that produces tangible results. I remain committed to finding a solution.”

For the state attorneys who are seeking to broaden the implementation of Amendment 4, their hope is that their work setting up processes and systems for giving voting rights back to more people with past felony convictions helps other counties implement similar policies. Griffith, Fernandez Rundle’s spokesperson, said, “The hope was that whatever was created here in Miami-Dade County could become a structure for use throughout the State, thereby creating uniformity for all individuals seeking their voting rights anywhere in Florida.”