[EL] 11th Circuit en banc ruling in Florida felon disenfranchisement case; more news and commentary

Fri Sep 11 11:16:24 PDT 2020

Breaking: Divided 11th Circuit, Sitting En Banc, Upholds Florida Law Making It Harder for Ex Felons To Vote without Acknowledging That Some Ex-Felons Do Not Know How Much They Owe in Fees and Fines<https://electionlawblog.org/?p=115036>
Posted on September 11, 2020 11:15 am<https://electionlawblog.org/?p=115036> by Rick Hasen<https://electionlawblog.org/?author=3>

You can find the 200 pages of opinions and rulings at this link.<https://media.ca11.uscourts.gov/opinions/pub/files/202012003.enb.pdf>

From one of the dissents (Judge Martin):

Second, even if a returning citizen is able to determine his original LFO obligation, then “[d]etermining the amount that has been paid on an LFO” is likewise “often impossible.” Id. at *18.

The State, pointing to its advisory-opinion system for voter eligibility, says the Plaintiffs cannot complain about the inability to determine LFO obligations because, since the enactment of SB-7066, only about 30 members of the public have made inquiries of the Florida Department of State about “voter eligibility with regards to financial terms of sentence.” Br. of Appellant at 55. This is beside the point. Although the State offers the advisory opinions as a panacea, it explains in its briefing that these advisory opinions actually only give a returning citizen “a legal determination on whether he would violate the laws against false registration and fraudulent voting by registering and voting given the facts and circumstances attendant to his case.” Id. The Department of State’s current advisory-opinion process does not promise returning citizens accurate information about their outstanding LFOs.

And in any event, this record shows the precise amount of payments made is “sometimes easy, sometimes hard, sometimes impossible” for a returning citizen to determine. Id. at *21, *23. The District Court discussed a number of examples of returning citizens struggling mightily to calculate their outstanding LFO balance.

One named plaintiff, Clifford Tyson, contacted the Hillsborough County Clerk of Court to help him determine his outstanding LFO balance. Id. at *20. The District Court recounted that it took the Clerk of Court’s “financial manager” and “several long-serving assistants” 12 to 15 hours to come up with an answer. Id. Even at the end of that painstaking process, nobody was able “to explain discrepancies in the records” that surfaced. Id.

Under the majority’s decision, it remains incumbent on the person seeking to vote to bring all relevant “facts and circumstances” to the State’s attention, including the amount of his outstanding LFOs. To the contrary, I believe the State has an obligation to give accurate information to its citizens about how much it believes they must still pay to discharge their obligations under SB-7066. This is particularly so, in light of the State’s idiosyncratic “every-dollar” method of calculating payment. Under this method, all payments made in relation to an LFO are to be counted toward the outstanding balance of a criminal sentence, even if a portion of the payment has in fact been allocated elsewhere in the payment process. See id. at *21. So it is the State’s position, adopted by the majority, that a returning citizen can qualify to vote if he has paid the amount assessed in his sentencing document, but still has outstanding LFOs if any portion of his payments were, say, pocketed by a debt collection company. As I understand it, this “every-dollar” method is not the mode of accounting any local government uses for any purpose. This is likely because the calculation method was devised midway through this case, apparently as a litigation strategy, and seems completely divorced from how LFO remittances actually work. But, because no formal policy, rule, or statute in Florida provides for the tracking of “every dollar” paid, for many, this “fact” the State demands to know is simply unknowable. This result cannot comport with due process.

I would be very surprised to see the Supreme Court take up this case before the election.
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Posted in felon voting<https://electionlawblog.org/?cat=66>

“More than 100 times this year, President Trump has peddled false claims or imaginary threats about voting by mail.”<https://electionlawblog.org/?p=115034>
Posted on September 11, 2020 8:57 am<https://electionlawblog.org/?p=115034> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo Fact Checker.<https://www.washingtonpost.com/politics/2020/09/11/trumps-fusillade-falsehoods-mail-voting/>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“‘We’ll put them down very quickly’: Trump threatens to quash election night riots”<https://electionlawblog.org/?p=115032>
Posted on September 11, 2020 8:51 am<https://electionlawblog.org/?p=115032> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico:<https://www.politico.com/news/2020/09/11/trump-election-night-riots-412323>

President Donald Trump threatened Thursday to “put … down very quickly” riots on election night should aggrieved Democrats take to the streets in the wake of his potential victory.

The remarks from the president came in an interview with Fox News host Jeanine Pirro set to air Saturday, in which he was asked how he would respond to incidents of rioting should he be declared the winner on Nov. 3.

“We’ll put them down very quickly if they do that. We have the right to do that. We have the power to do that, if we want,” Trump said.

“Look, it’s called insurrection,” he added. “We just send in, and we do it very easy. I mean, it’s very easy. I’d rather not do that because there’s no reason for it, but if we had to, we’d do that and put it down within minutes.”
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>

“Our Most Vulnerable Election”<https://electionlawblog.org/?p=115030>
Posted on September 11, 2020 8:44 am<https://electionlawblog.org/?p=115030> by Rick Hasen<https://electionlawblog.org/?author=3>

Pam Karlan<https://www.nybooks.com/articles/2020/10/08/our-most-vulnerable-election/> in NYRB:

But a huge danger lies ahead even if the upcoming election goes smoothly, or smoothly enough to satisfy the Election Official’s Prayer—“Dear Lord, let this election not be close.” I am less optimistic than Douglas that a “decisive defeat” for Trump would avoid a crisis. If Trump leaves the White House on January 20, 2020, he will not go gentle into that good night. Addicted as he is to Twitter and the limelight, he is likely to continue attacking his successor, stirring up his base, and suggesting that the election was stolen, thereby continuing to undermine the legitimacy of the democratic system. Douglas imagines the former president setting up with Sean Hannity at the Trump International Hotel just a half-mile from the White House, where he can launch his long-planned cable network, rally his die-hard supporters, and “remain a force of chaos for years to come. Indeed, having lost in 2020, he could run again in 2024.” So whatever happens in November, the answer to the question “Will he go?” may unfortunately be: “Not for a long, long time.”
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>

--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
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