CopyPublished | Court of Appeals for the Eleventh Circuit
...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)....
...4
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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)....
...oter
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 reenfranchise...
...ble and
26
Case: 20-12003 Date Filed: 09/11/2020 Page: 27 of 200
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)....
...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)....
...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....
...ense 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....
...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....
...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.
66
Case: 20-12003 Date Filed: 09/11/2020 Page: 67 of 200
restore their right to vote upon “completion of all terms of sentence”: (1) actual
payment of t...
...pt 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”),...
...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....
...e indigent and represented by court-
appointed 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)....
...See
id.
107
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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 ....
...visor 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)....
...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....
...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—
109
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or any guidance given—as to how to implement the LFO requirement....
...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....
...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)....
...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 re-
enfranchising felons who have completed the terms of their...
...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....
...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....
...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....
...ilege,
and then refuse to explain to a person what the condition consists of or how to satisfy
159
Case: 20-12003 Date Filed: 09/11/2020 Page: 160 of 200
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....
...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)....
...200
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....
...But the majority ignores the necessary
adjudicative phase of the re-enfranchisement process under Florida’s own laws.
163
Case: 20-12003 Date Filed: 09/11/2020 Page: 164 of 200
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)....
...re].
The Commonwealth’s statutory notice argument thus fails.” Id. at 274.
166
Case: 20-12003 Date Filed: 09/11/2020 Page: 167 of 200
Here, similarly, neither Amendment 4 nor § 98.0751 tells felons how to
determine whether they have outstanding LFOs....
...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....
...’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...
...2 of 200
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....
...e, 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....
...195
Case: 20-12003 Date Filed: 09/11/2020 Page: 196 of 200
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....
...we.
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....
...se 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....
CopyPublished | Court of Appeals for the Eleventh Circuit
...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)....
...4
Case: 20-12003 Date Filed: 09/11/2020 Page: 5 of 200
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)....
...oter
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 reenfranchise...
...ble and
26
Case: 20-12003 Date Filed: 09/11/2020 Page: 27 of 200
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)....
...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)....
...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....
...ense 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....
...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....
...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.
66
Case: 20-12003 Date Filed: 09/11/2020 Page: 67 of 200
restore their right to vote upon “completion of all terms of sentence”: (1) actual
payment of t...
...pt 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”),...
...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....
...e indigent and represented by court-
appointed 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)....
...See
id.
107
Case: 20-12003 Date Filed: 09/11/2020 Page: 108 of 200
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 ....
...visor 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)....
...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....
...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—
109
Case: 20-12003 Date Filed: 09/11/2020 Page: 110 of 200
or any guidance given—as to how to implement the LFO requirement....
...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....
...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)....
...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 re-
enfranchising felons who have completed the terms of their...
...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....
...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....
...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....
...ilege,
and then refuse to explain to a person what the condition consists of or how to satisfy
159
Case: 20-12003 Date Filed: 09/11/2020 Page: 160 of 200
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....
...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)....
...200
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....
...But the majority ignores the necessary
adjudicative phase of the re-enfranchisement process under Florida’s own laws.
163
Case: 20-12003 Date Filed: 09/11/2020 Page: 164 of 200
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)....
...re].
The Commonwealth’s statutory notice argument thus fails.” Id. at 274.
166
Case: 20-12003 Date Filed: 09/11/2020 Page: 167 of 200
Here, similarly, neither Amendment 4 nor § 98.0751 tells felons how to
determine whether they have outstanding LFOs....
...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....
...’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...
...2 of 200
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....
...e, 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....
...195
Case: 20-12003 Date Filed: 09/11/2020 Page: 196 of 200
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....
...we.
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....
...se 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....
