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Case 4:19-Cv-00300-RH-MJF Document 340 Filed 04/14/20 Page 1 of 253 Case 4:19-cv-00300-RH-MJF Document 340 Filed 04/14/20 Page 1 of 253 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA TALLAHASSEE DIVISION KELVIN LEON JONES, et al., Plaintiffs, v. Consolidated Case No. 4:19-cv-300-RH-CAS RON DESANTIS, in his official capacity as Governor of Florida, et al., Defendants. PLAINTIFFS’ CONSOLIDATED PRETRIAL BRIEF 1 Case 4:19-cv-00300-RH-MJF Document 340 Filed 04/14/20 Page 2 of 253 TABLE OF CONTENTS INTRODUCTION .................................................................................................... 7 PLAINTIFFS’ PROPOSED FINDINGS OF FACT ................................................ 7 I. Jurisdiction .................................................................................................. 7 II. Nature of the Case ....................................................................................... 7 III. Parties .......................................................................................................... 8 A. Individual Plaintiffs ................................................................................. 9 B. Organizational Plaintiffs ........................................................................ 18 C. Defendants ............................................................................................. 20 IV. Experts ...................................................................................................... 22 V. Procedural History .................................................................................... 27 A. Filing and Consolidation of the Cases ................................................... 27 B. Preliminary Injunction and Appeal ........................................................ 29 C. NVRA Notice and Claims ..................................................................... 32 VI. Florida Has a Long History of Disenfranchising People with Felony Convictions ............................................................................................... 33 A. Before Amendment 4, Florida Had One of the Harshest Felony Disenfranchisement Laws in the Nation ................................................ 33 B. Felony Disenfranchisement Was One of Many Tools Florida Used to Disenfranchise Black People After the Civil War .................... 34 VII. Prior to Amendment 4 Florida’s Rights Restoration Process Was Arbitrary, Interminable, and Rarely Successful ........................................ 37 VIII. Florida Voters Enacted Amendment 4 to End Permanent Disenfranchisement for All Floridians Except Those Convicted of Murder or a Felony Sexual Offense .......................................................... 40 A. Amendment 4 Was Conceived and Enacted Against the Backdrop of Historical Discrimination, Legislative Failure, and the Broken Clemency System .................................................................................. 40 2 Case 4:19-cv-00300-RH-MJF Document 340 Filed 04/14/20 Page 3 of 253 B. The Public Discussion of the Effects of Amendment 4 Leading Up to the Election Centered on the Large Numbers of Individuals Who Would Benefit from Automatic Rights Restoration and Rarely Touched on LFOs ....................................................................... 42 C. A Large Majority of Floridians Voted to End Permanent Disenfranchisement ............................................................................... 43 IX. SB7066 Was Enacted To Restrict the Number Of Individuals Who Would Qualify for Rights Restoration Under Amendment 4 ................... 44 A. Prior To the Enactment of SB7066 Florida Officials Permitted the Registration of Returning Citizens with Outstanding LFOs .................. 44 B. Prior to and During the 2019 Legislative Session, Legislators Were Aware That an LFO Requirement Would Be Difficult If Not Impossible to Implement ................................................................ 48 C. Legislators Intentionally Chose to Define “Completion of All Terms of Sentence” in the Most Restrictive Manner and Ignored Warnings that Doing So Would Disproportionately Impact Black Floridians ............................................................................................... 53 X. SB7066 Denies Rights Restoration to Otherwise Eligible Floridians Solely on the Basis of Their Outstanding LFOs ....................................... 65 XI. The State of Florida Uses Revenue Generated from Payment of LFOs to Fund Its Criminal Justice System and Other State Functions. .................................................................................................. 69 A. LFOs are Designed to Fund Florida’s Government .............................. 69 B. LFOs Include Additional Fees and Charges .......................................... 75 C. LFOs Have No Connection to Culpability ............................................ 77 XII. The Majority of Floridians with LFOs are Genuinely Unable to Pay Them ......................................................................................................... 82 XIII. The LFO Requirement Has a Disproportionate Impact on Black Floridians .................................................................................................. 90 XIV. The LFO Requirement Has a Disproportionate Impact on Black Women ...................................................................................................... 93 3 Case 4:19-cv-00300-RH-MJF Document 340 Filed 04/14/20 Page 4 of 253 XV. Floridians With LFOs Cannot Determine Their Eligibility to Register and Vote Under SB7066 ............................................................. 95 A. Voters Must Affirm their Eligibility to Register and Vote in Florida .................................................................................................... 95 B. People with Past Convictions Face Substantial Burdens in Determining Eligibility and Paying Disqualifying LFOs .................... 105 C. Defendants Will Not Assist Voters Seeking Determinations of Their Eligibility to Register ................................................................. 119 D. The Only Process Available for Determining Eligibility Occurs After Registration ................................................................................. 126 E. Even the Post-Registration Process Is Currently Inactive Because the Department Cannot Ascertain Eligibility Due to LFOs ................. 129 XVI. Counties Are Implementing SB7066’s LFO Requirement Differently ............................................................................................... 139 A. Officials in Different Counties Have Different Interpretations of Which LFOs Preclude Voting Under SB7066 ..................................... 141 B. Returning Citizens in Different Counties Have Differing Ability to Pay Disqualifying LFOs Without Incurring Fees ............................ 143 C. Counties Have Different Practices on Negotiating Payment of LFOs .................................................................................................... 144 ARGUMENT ........................................................................................................ 145 I. The LFO Requirement Constitutes Unconstitutional Wealth Discrimination, and Would Not Survive Even Rational Basis Review .................................................................................................... 145 A. The Appropriate Lens For Reviewing Rational Basis is As- Applied to Those Unduly Burdened by the Challenged Statute .......... 146 B. Even When Evaluated Against the General Case, the LFO Requirement Lacks a Rational Basis Because Those Who Cannot Pay Are the General Case .................................................................... 149 II. The LFO Requirement in SB7066 Violates the Twenty-Fourth Amendment ............................................................................................. 153 4 Case 4:19-cv-00300-RH-MJF Document 340 Filed 04/14/20 Page 5 of 253 A. The Twenty-Fourth Amendment Prohibits Any “Price Tag” on Voting .................................................................................................. 154 B. Under the “Functional Approach” Adopted by Federal Courts, LFOs are Taxes in Florida ................................................................... 158 III. The LFO Requirement Violates the Fourteenth Amendment Because the State Is Incapable of Implementing It ................................. 161 A. The State’s Inability to Implement the LFO Requirement Demonstrates That it is Unconstitutionally Vague .............................. 163 B. SB7066 Unduly Burdens the Right to Vote ........................................ 167 C. SB7066’s LFO Requirement Violates Due Process ............................ 172 D. Defendants’ Implementation of SB7066 Violates Bush v. Gore Requirements of Uniform Application of Election Laws .................... 176 IV. SB7066 Violates the First Amendment Right of the League of Women Voters of Florida to Engage in Voter Registration Activities ... 183 A. The League’s Right to Engage in Voter Registration Activities is Protected by the First Amendment as “core political speech” and Expressive Association ........................................................................ 184 B. SB7066 Imposes a Severe Burden On the League’s Speech and Association .......................................................................................... 185 C. The Burdens Imposed on the League by SB7066 are Unconstitutional Restrictions on “Core Political Speech”
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