Sides square off as felons' voting trial nears

TALLAHASSEE, Fla. (News Service of Florida) — For months, plaintiffs’ lawyers have been trying to get Gov. Ron DeSantis’ administration to reveal its process for determining whether potentially hundreds of thousands of Floridians are eligible to vote under a state law requiring felons to pay “legal financial obligations” before they can cast ballots.

The financial obligations --- court-ordered restitution, fees, fines and costs associated with felony convictions --- are at the heart of a legal challenge to a 2019 state law that Republican lawmakers passed to carry out a constitutional amendment aimed at restoring voting rights to felons who have completed terms of their sentences.

With a trial set to begin Monday in federal court, a flurry of recent emails obtained by The News Service of Florida provide a behind-the-scenes glimpse of the hostility between voting-rights groups who represent plaintiffs in the case --- and who maintain the 2019 law is an unconstitutional “poll tax” --- and the DeSantis administration, which has staunchly defended the statute.

In a preliminary injunction issued in October, U.S. District Judge Robert Hinkle ruled that it is unconstitutional to deny the right to vote to felons who are “genuinely unable to pay” court-ordered fees, fines and restitution. The 11th U.S. Circuit Court of Appeals upheld the injunction, which applied only to the 17 named plaintiffs in the case. Hinkle earlier this month granted class certification to plaintiffs, adding potentially hundreds of thousands of felons to the lawsuit.

The recent round of finger-pointing stems from a trial brief filed last week by lawyers representing DeSantis and Secretary of State Laurel Lee. The DeSantis administration’s attorneys asserted in the brief that “the state has been working towards and now has a process for re-enfranchising felons who will fall within the ambit of Amendment 4.”

The state’s lawyers also argued “the evidence will show that the state’s process for re-enfranchising felons minimizes the chance of error.” They added that “safeguards are built into the process to resolve ambiguity and errors in favor of re-enfranchisement” and to provide “ample opportunity to be heard and rectify any errors.”

The actual procedures, however, did not accompany the claims about the process.

The state finalizing a plan came as a surprise to the groups representing “returning citizens,” the moniker given to felons by advocates of what appeared on Florida’s November 2018 ballot as Amendment 4.

“This is the first plaintiffs have learned that the state ‘now has a process.’ Plaintiffs have served a host of written discovery and asked deposition questions on these very topics, and have never been provided with any of the evidence or answers you now assert you will unveil for the first time at trial,” lawyers representing the American Civil Liberties Union, the Southern Poverty Law Center and Campaign Legal Center wrote on Friday to Tallahassee attorney Mohammad Jazil, who represents the secretary of state.

The information about the process is “directly responsive” to discovery requests but wasn’t provided to the plaintiffs, the lawyers wrote. The plaintiffs gave Jazil until noon Monday to release Lee’s implementation plan and threatened to seek sanctions against the state for failing to divulge its process.

The state responded Monday afternoon by filing four court documents and sending a venomous message to the plaintiffs’ lawyers.

“Without so much as picking up the phone or requesting a conversation about plaintiffs’ questions, plaintiffs have instead chosen to send correspondence containing outright falsehoods and threatening sanctions,” Lee’s general counsel, Bradley McVey, wrote, adding the state is “disheartened.”

The plaintiffs’ actions don’t appear to be aimed at resolving any concerns “but instead serve to inject needless hostility into this very important case,” he wrote.

McVey also lashed out at the plaintiffs for referring to federal rules designed to “specifically guard against trial by ambush.”

“It is the height of hypocrisy for plaintiffs to claim they are the victims of ambush over four documents for which the plaintiffs have continually received drafts, when the plaintiffs unleashed more than 350 documents on state defendants during the last seven days ,” McVey wrote.

If the four documents don’t address the plaintiffs’ “accusations,” Lee’s lawyer also asked that the other side provide “some indication as to the perceived deficiencies --- without the unnecessary rhetoric and inflammatory allegations” before filing an emergency motion with the court.

But in a response to McVey’s later Monday, Campaign Legal Center lawyer Mark Graber said the documents “raise more questions than they answer” and asked for “supplemented written responses” to Lee’s previously filed answers to interrogatories.

One of the records released by the state Monday is a detailed “internal procedures” document outlining how the Florida Division of Elections will “create and review credible and reliable felon match files.”

The procedures expand on a process that has been in effect for years, in which the Division of Elections verifies that Floridians who register to vote are eligible to cast ballots by checking a variety of court databases. Voters who are not deemed eligible are flagged, and the information is sent to county supervisors of elections, who make final determinations about eligibility and have the authority to remove people from the voting rolls.

But Julie Ebenstein, a senior staff attorney with the ACLU’s Voting Rights Project, called the documents submitted by the state inadequate.

For example, the state has not explained how it intends to deal with people with outstanding financial obligations who have registered to vote and have already been flagged by Florida elections officials, Ebenstein said. The state so far has not sent information about the flagged voters to county elections officials.

“We’re flying a bit blind here as far as what material the department has created” prior to Monday’s court filings, Ebenstein said in a telephone interview Tuesday, adding that the plaintiffs hope to get more information before the trial begins Monday.

The state’s delay in revealing its process has left felons and voter-registration groups “in limbo” as the November election looms, Ebenstein said.

“It really has done a disservice for voters to not know what process is in place, whether they’re eligible and what they need to do to become eligible and confirm their eligibility, for the better part of a year, leading up to a major presidential election,” she said.

The two sides’ exasperation mirrors Hinkle’s growing impatience with the state for not implementing a process to carry out the amendment and for delays in responding to the October preliminary injunction. The injunction ordered the state to come up with an administrative process in which felons could try to prove that they are unable to pay financial obligations and should be able to vote.

As recently as March 26, Jazil told Hinkle that the state “is working diligently every day” to develop a system but had not finalized one yet.

Hinkle warned Jazil to have a process in place by the time the trial begins next week.

“If the state’s not going to fix it, I will,” the federal judge scolded.