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Former Florida Supreme Court justices decline to recuse themselves from state’s felon voting appeal

The Florida Supreme Court building in Tallahassee, Fla.

(The Center Square) — Two of the 12 judges who sit on the 11th U.S. Circuit Court of Appeals have recused themselves from Aug. 18’s initial hearing in Florida’s appeal of a federal ruling declaring unconstitutional a state law requiring felons pay all “legal obligations” before voting rights are restored.

But neither of the appellate jurists opting out of the case are the two justices appointed to the Florida Supreme Court in January 2019 by Gov. Ron DeSantis before they were named to the federal judiciary by President Donald Trump in November.

Plaintiffs argued Judges Barbara Lagoa and Robert Luck should step aside because, as Florida Supreme Court justices last July, they participated in oral arguments during a DeSantis-requested advisory opinion  hearing on the federal case.

The two were on the federal bench in January when the court issued its 4-1 advisory opinion upholding the state’s contentions in the year-long legal battle over the constitutionality of 2019’s Senate Bill 7066.

The Florida Supreme Court’s advisory opinion hearing and the federal case “are “different kinds of proceedings,” “in different courts,” “with different issues,” and “different players,” Lagoa and Luck wrote in defending their decision not to recuse themselves.

In a 25-page order handed down Monday, the 11th Circuit agreed with Lagoa and Luck, ruling the Code of Conduct for U.S. Judges does not mandate they withdraw because the state Supreme Court hearing was a different legal matter than the appeal now before the court.

Plaintiffs had also requested 11th Circuit Judge Andrew Brasher, a former Alabama solicitor general, be removed. Brasher joined former South Florida federal district judge Robin Rosenbaum in disqualifying themselves from hearing the case.

Plaintiffs argued Lagoa’s and Luck’s prior exposure to the case will blemish proceedings that could affect the voting rights of up to 1.4 million Floridians.

More than 80,000 felons had registered to vote by June, according to the state’s Division of Elections (DOE), but they will not be permitted to vote in the state’s Aug. 18 primary because the 11th Circuit upheld Florida’s request for a stay of U.S. District Court Judge Robert Hinkle’s injunction prohibiting the state from preventing felons from voting while appeals were being deliberated,

After hearing the state’s appeal on the same day as Florida voters cast primary ballots, if the court does issue a ruling by Oct. 5, the registration deadline for November’s general elections, an estimated 774,000 Florida felons projected to register could be denied access to the ballot.

Nearly 65 percent of Florida voters in November 2018 approved Amendment 4, which restored voting rights for felons, excluding those convicted of murder and sexual assault, after “completing sentences.”

During the 2019 legislative session, the GOP-controlled Legislature adopted SB 7066 as “enabling legislation,” which interpreted “completing sentences” to mean paying all legal obligations, including court fees, fines and restitution.

SB 7066 was challenged by an array of groups, launching a year-long federal legal battle that culminated in an eight-day May trial in U.S. District Court Judge Robert Hinkle’s Tallahassee courtroom.

In his May 24 decision, Hinkle called SB 7066 a “pay-to-vote system” that imposes “a tax by any other name” and required the state to ascertain how much a felon owes within 21 days of a status request or voting rights are automatically restored.

In February, a three-judge 11th Circuit panel unanimously upheld Hinkle’s October ruling that SB 7066 denies voting rights of felons “genuinely unable” to pay court costs and retained his injunction preventing the state from barring 17 plaintiffs from voting.

Hinkle later granted class certification for one consolidated case, Jones v. DeSantis, meaning the ultimate ruling would apply to all of Florida’s 1.4 million potentially eligible felons.

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