chief judge may please the court throughout its history as automatically and permanently disenfranchised voters upon conviction of a felony the state needed no justification for this policy apart from the naked fact supervisory and financial the voters decided that the right to vote of a person who lost it as a consequence of his conviction of a felony should be restored only if he has paid a full of debt he has to society as a consequence of his conviction that felony the principal question before you today is whether a central requirement to the men for namely that all felons complete off d financially terms of their sentences is unconstitutional as applied to felons who are genuinely unable to pay them the district court them following the jones panel lead in applying heightened scrutiny held that it is unconstitutional and it ordered that such felons tax on the right to vote the district court in the jones panel took a very lonely path no other court has ever taken it know whether appellate court is applied heightened scrutiny to allow restoring the right to vote disenfranchised felons every other court considering it comes to tional challenge to such a law has upheld the law under rational basis scrutiny and with specific reference to requirements that felons complete a financial terms of their sentences all three appellate courts to consider a wealth discrimination challenge to such a requirement have rejected it and have held the law the district courts th amendment room also stands alone three circu have rejected similar claims the district court made several legal errors but the most fundamental error made by the district court and the jones panel was a factual one the jones panel put it this way it is undeniable that l f requirement punishes those who cannot pay more harshly than those who can't this fact was the fulcrum of the court's entire analysis but not only does it deniable it is wrong first amendment four punishes no one the financial terms of a felon sentence were imposed because he committed a felony and the state's continuing demand that he paid them is not some new and different punishment more harshly than a wealthy one dollar if two people commit the same crime and are sentenced to the same prison term the same supervisory term and the same fun has one been punished more harshly than the other the answer does not change if one has financial means and the other does not but now look at them through the lens of the district court's injunction the wealthy felon cannot vote until he has satisfied his punishment and fall decision to apply heightened scrutiny the jones panel determined that the plaintiffs have a right of access to the ballot box but they do not they lost that right upon their convictions justice benefit a enfranchise them this is not a fundamental right it is in your benefit that arizona can choose to withhold entirely justice o'connor went on to write this arizona had a rational basis for restoring voting rights only to those felons who have completed the terms of their sentences which includes the payment of any fines or restitution because the state could rationally conclude h is i understand your argument that cost in phoebe's are not and other tax within the meaning of the th amendment but i'm having a big problem with the other part of your argument is white and a felon who is black and the state says we're going to d re and franchise white felons but not black so wouldn't that claim only and financial terms the state could then impose a poll tax on the felon before giving him the right to write that's right your honor and i think that that really addition to all the cost vs in the fines that are imposed upon the felon we're going to institute a new type of imposition a tax on any file and ultimately is the felons do not have a fundamental right to vote until that right has been restored to them until that time they have a statutory benefit and that to the side of the constitution restore that did that fell into to the franchise and your honor those are that is that is a question that certainly is also controlled by constitutional restrictions as judge prior identified  state of florida has no obligation to facilitate these are folks address find them for him and are determining what amounts they might owe to the state am i right about  that your honor what what we've already do is that the state doesn't have that no more than the state would have an obligation to investigate the personal financial circumstances of a welfare applicant who also seeking a statutory benefit it has no greater obligation to do so with respect to a felon seeking information about the felons eligibility for no legal basis for charging the state with the responsibility of providing felons with information about their own unfulfilled criminals and that's so you said the state has no obligation to do that as i understand it me refine that point as we attempted to reply brief which is the state doesn't have an obligation to serve as a private investigator for the into the personal factual financial i'm not talking about her and her personal up an investigator i'm just talking about somebody since and their registration their voter registration the state has a different view about what they are tha and the felon have to get on the same page and they do that they do that both before but this ration under the advisory opinion process but it that's not working i mean status sign a staggering inability to administer this this process and it's i read your brief you your answer it's not oh no we've done a good job your answer that is it's not necessary we that we do that in my view and i misunderstood argument your honor oath ultimately it is necessary for the state to be to identify the amount very important for the court to understand that in that it's taken steps both before eligibility before the registration and after the registration before the registration it has the advisory opinion process your hon hadn't have any of the people that have requested an advisory opinion on the one they have your honor how many honestly i don't know the answer to that but it's been you know several  point here which is to the extent the state does not have in the advisory opinion process credible and reliable information that that the  your financial legal obligations is not confined to those people and only those people who are indigent by really most any standard it also a pl m l b r r test comes from l ima be itself as it was explaining the decisions that it was distinguishing from washington versus davis that the that would bring at least the argument into it and into the field that and they'll be identified because if it's anyone who's on a bill to pay even a millionaire who can't pay an outsized restitution or  reasonable understanding of indigence is not indigent yes that person is unable to pay in the one dollar example in this very case the fifty six million dollars restitution every judgment that could person can the state is trying to cope with is one that if it is it is formulating how in the aftermath of amendment four and it to be sure  conforming its processes to to this very large and new body of of potentially eligible voters has been very difficult the point i want to make very clear however is that to reiterate in the advisory opinion process that the state has adopted when it gets a request for this financial information it does an investigation of its sources what does it say that florida was not even able to process the applications of the seventeen plaintiffs in this case during the entire time that the trial is pending florida couldn't even process seventeen applications even using what you say is the advisory application process the advisory opinion what does that tell you about the rationality of florida says your honor it tells me that florida did not get its act together as quickly as one would hope to be sure but i'm here to tell you that florida has not gotten its act together it has its advisory opinion process d in place it is it is only received your honor some of thirty five or so though the quest for an advisory opinion it is responded to them quickly and promptly and it seems to me that the harbor tastes pretty large here what do you say in response to your adversary's argument that the harper court didn't really hold or assume that the petitioners there head a right or a fundamental right to vote that it seems sort of bracket the question and say well in any difference and in it in any event even if that question is disputed if the court said it's enough to say that once the franchise it's granted lines may not be drawn w policy how does the st dollar policy really rationally related to the supposed interest in requiring the felons to pay their full debt because as i understand it now under the st all policy you might you might  a sum that really has nothing to do with repaying your debt to society for this sort of that and it is receive your collection fee or something and that that still counts isn't there snell some sort of fundamental disconnect between the interest and the policy on i don't think so you're going to think it's entirely rational for the state to decide as a minister even if only as a matter of administrative feasibility that they're going to credit  the st dollar paid by the felon to the amount identified in the sentencing documents which is which is the full amount that was assessed against the felon in the  should not be taxed or assessed against the fund branch excuse me yes mr cooper i wanted to give you an opportunity to come back to we've been talking about some of the administrative difficulties that the state has faced an implementation of this legislation and i know in you've talked about today that you've not had very many the state has not had very many requests for advisory opinions  what but there are some other avenues that are also available under the statute for felons as they seek to determine what amount they are they can get sixty advisory opinion but there that's and that's the real source and rationality if you will judge you know some we would submit to the st dollar policy comes from the legislature to the extent that that isn't rational then the  to have them converted in that manner you know apologize i don't have that figure i'm sure i can get that from my colleagues and there's also an avenue for executive clemency is that correct discretionary process that the that the state's laws permit and mr cooper i know we have a florida supreme court advisory opinion that the florida supreme court rendered after the statute was would be too closely him to a fee but attached after eligibility of felons and the key point is this to my mind anyway it would sentence initially on the front there's nothing that could be more germane than requiring the family to pay those those completely status a constitutional level disqualification or qualification of vote and so if the state has decided to disqualify felons it can certainly just because that's your main between this fee that i'm talking about which would only be out of prespective lee and would apply to everyone regardless of whether they tried to korean franchise is there a difference between that he and some of the fees that the state currently times they are they are imposed only on the guilty they are indistinguishable in terms of how they are imposed how they are how they are collected oh they are not a tax and once again is it is directly germane your honor to the very reason that the phone was disqualified in the st place because chief judge there simply is no material distinction between those fines and the costs and fees that are also effectively fines imposed only only on those who are guilty the those are acquitted don't have to pay costs until they obviously don't have to pay fi why should we have five years made and the other is not just cooper could i ask you a question please in a state that has never taken away the franchise from felons do felons have a fundamental right to vote as it's permitted to do do felons have a fundamental rights a vote your honor those moments you who are exercising their right to vote have a right to vote even but it but in my hypothetical they haven't taken it away no they haven't exercising it what sort of a right or the exercising their exercising a right that is protected by the th amendment it would not be able to be conditioned on  your honor it's there is nothing more germain to conditioning their eligibility on then that they paid their debt to society  didn't that includes your honor their financial terms of their sentence because ignore it and if i may has any florida court considered whether and then it for myself executing i don't believe that there is a decision on that question i do believe that seventy six next to the extent that  she may it please the court what this court has just heard is that the state does not have a single legitimate constitutional or statutory are to uphold those in practical consequences that will flow from conditioning the right to the payment of the rebels who are genuinely able to pay the doctrinal consequence of course is defying supreme court precedent striking down burdensome border qualifications especially those that are extremely difficult if not impossible to satisfy the practical consequences the erosion of our democratic impacted by senate bill seven thousand and sixty six were core enough that the state was required to assign them a court appointed attorney many of them still struggle to find gainful employment that pays a living wage in eighty percent of those real people people like rosemary mccoy who actually received an order satisfaction a judgment registered invalid since amendment forced passage and is now being forced to pay almost eight thousand dollars so that she does not in order for her to be able to vote again it's about sheila singleton who have the majority of her of photos in three years after her sentence and yet her voting rights remain in limbo because of just so he can buy the state already knows that these individuals who understandably are focused on putting food on the table and a roof over their heads do not have the financial resources to pay so  that is why cases like reference be in the money in beard in harper protect the most economically and politically vulnerable in our society which our clients are this case is a firm that the d responses we just want to emphasize two important points st that harvey upon which the state really overly rely is focused primarily on pain and regardless of one's ability to pay in addition the hardy case did not contain nearly the same bar evidence related to the impact of a law like senate bill sent me sixty six and low income in poor people no better source than the state itself the due process charge purges notice from the ordinary person's perspective and the state is no ordinary person it possesses a level of sophistication and access to data that is unparalleled by any one individual therefore if the state cannot determine with accuracy whether someone who completed their probation or parole has an outstanding elephant how and if so how much voting for the st time in years so this case is not about the men who are in it's entirety it's about the larger group of people who remain marginalized and excluded from our democracy simply because they can have or to be part of their core we're asking this court to uphold the foundational principle that when it comes to voting the size of a person's pocketbook alone should never dictate access to the ballot box thank brief there will be more than one conflict decision doesn't reduce them but i think we have the better of the argument is we are the supreme court our side and let me ask you a question that i asked opposing counsel what claim if you agree with just think of all the fees and costs are taxes but the final restitution are not the right relief would be to say that no one dollar has to pay their fees and costs in order to vote they still owe them they still can be enforced in other ways but as to the right to vote i think if all they are was a theater cost and that's the majority of the class here we should be able to register now and the inquest becomes irrelevant altogether to their ability to register and vote primarily for economic crimes committed by white collar from a more they're more likely to be able to pay for those costs is there something in the record that reflects that or  because i took your position to be that it embodies very sort of minimal but for a level of causation and my fear is that that captures this ridiculous hypothetical i agree with you it's ridiculous but i worry that three of causation might capture i would think the poor implementation of procedures if can they go to the federal district court to raise that issue you know you have to think about the hunting license a particular the easier case it seems like is a is on welfare kind more intermediate example is a driver's license which doesn't sound as frivolous as a hunting license but it's something that people rely on and you almost every day of their lives modification is not necessarily available for them the modification process even as it exists in florida does not appear to be in practice of elbowing each one of the counties so while some counties three in particular have made it available  some people with a conviction for some convictions those in that particular county it does not appear that the other sixty four dollars counties offer any sort of modification program much less any route of access for an individual or go to the those applying community service conversions are also not available to a large number of individuals including or some of our clients because once debts have been converted for collection by a debt collection agency there evidence in the record the county clerks will no longer allow somebody to convert to community service the same goes not instance for a federal felony is and for out of state conviction so these alternatives while they may be available to some are completely unavailable to others and when they are available they are entirely discretionary in our view that's inadequate to provide a means of restoration as its invasion and under appeared and it does not provide a real route for many or we look at to two people similarly situated one who can afford to pay and one dollar who cannot only for that person who cannot afford to pay is the disenfranchisement ongoing so as a panel of this court held earlier disenfranchisement is not just a single momentary penalty it's an ongoing punishment as individuals miss alexion after election it is not only an element or related to the offense but with seven  six it is the something and in this case the only thing that prevents that individual from voting so it doesn't factor that point relate only to their right to vote several is that certain and that's certainly a consequence but i guess my question is more theoretical in that this is a tax it's being imposed on them and or to the it's a preexisting requirement so the same way that someone who is still incarcerated which are specifically imposed for the purpose of disenfranchisement disenfranchise so for example the the example that the district court gave in its opinion well surely they could not say that only those who  who are current on their taxes have their rights restored and others do not or any other preexisting tax clear tax that that applies in order to disenfranchise somebody would be consider poll tax because of it's disenfranchising a fact so i don't think in theory or hurt i'm sorry to interrupt you right now sharon time is there any system that would require the payment of any financial penalties that you think would be vote that is where it's problematic in our view and of course the district court found that the definition of other taxes didn't compass costs and fees but he determined that it did not encompass fines and restitution so until actually agree with that part mean you can go ahead answer judge grants question whether we agree with that part of the holding in our initial complaint we did challenge a broader category of financial penalties but we have not appealed from judge from the district court's determination  that only cost and feels fall into the category of other taxes assuming that we reach the severability question how do you square the district court's findings with the florida supreme court's finding that the voters would have understood the ordinary meaning of all terms of sentence to encompass well your honor the the state court actually did not make a finding as to voter's intent the state court in its advisory opinion only looked at the study tour interpreted the statutory language and decided on the meaning of the strategery language but it was clear that it did not go beyond that to make it determine i determination either a voter's intent or what voters would have done if there was an exception for this unconstitutional application of the pay to vote system so that the state court never looked at the question that was in front of the federal court which is whether it's unconstitutional to these and costs what do you make of the state's argument that fees and costs are assessed only against those that suffer some conviction of guilt either a conviction you know sort of or probation and that acquitted defendants do not even fees and costs are tied in some sense to culpability criminal culpability your are as you said they are not paid by people acquitted however cost  years are paid by people for whom adjudication is with hal and my understanding of the adjudication withheld determination is that the individual does not need to be punished is there or is there a period of point is that the dividing line seems to be those judged culpable and those not those not don't pay these things those deemed culpable those found culpable do pay them and it just seems to me that that on balance puts the costs and fees on the the non tax penalty side of the line rather than the tax well your honor for a few reasons we believe it does put it on the on the other tax side of the line st of all  to the extent that it is assigned against those for whom there is going to determination made that they do not need to be punished or do not need to be incarcerated not that they don't need to be punished because as a probation of a form of punishment or not your hon believe that the statute that permits for adjudication to be withheld specifies that part of the current court's determination is that a penalty is unnecessary so it's not th probation is is is nothing but the specifics of that statute permitting for education with actually do speak to that cost and fees are also imposed class wide for any felony conviction with no account for the nature of the offense for the degree of the offense or for any individual eyes determination of culpability moreover if there can be punitive elements the primary purpose of cost and actually putting someone through the paces of trial are the same whether they're convicted or acquitted so what accounts for the judgment that acquitted defendants should not have what policy judgment underlies that determination your honor i believe that there's a separate line of constitutional concerned with assessing cost and fees against those who are acquitted so and i can cite the individual case unfortunately but i believe it's more than a policy assessment on the part of florida it's actually a separate barrier that doesn't permit assessments against those acquitted constitutional avoidance that the state supreme court in its advisory opinion interpreting all terms of sentence made a very limited ruling it did not look at the constitutionality of in ten uing to disenfranchise somebody who was unable to pay and it did not at the specific request of the governor during that hearing did not define completion were the were this court to affirm the district or determination the term completion could potentially be read so as to avoid the constitutional and from of the i believe the district court in its decision suggested that perhaps completion could mean something like when the person had their had their matter taken out of the criminal system and only had civil fines remaining or when the person reached the point where they were unable to pay either way to  defined the term completion resits defined completion of all terms of sentence in the statute leaves room for constitutional avoidance that is not where the state's decision is not in conflict with the u s constitution conviction and getting a monetary obligation changed into community service or something like that that is not financial do you recall whether the state ever offered that as a rationale or a theory in the district court your honor i just want to make sure i understand your question as a rationale for  our requiring payment scheme that the current system as it is being administered is constitutional because felons have the option at least those who say they can't pay have the option of going back to the trial court and asking that their monetary obligation be changed and converted into community service or something else that your honor the district  sorry the district court very specifically looked at at the alternative alternatives to for payment and found that they were insufficient to change the unconstitutional nature of the l of ose specifically what the court found was that they're fully discretionary in terms of converting to community service terminations of the financial obligation which lays in the hands of a rd party and clemency when so sometimes they are not available at all in all instances they are discretionary and even when they may be available on a discretionary basis they are often times illusionary so for example one of our and the district court uses example one of our clients who has a fifty thousand dollars outstanding legal financial obligations barely able to support herself at her current income could not work off that debt at ten dollars an hour through community service in any reasonable amount of time and certainly not in time for upcoming elections so for her as for many others  even if they can access the option of community service and as i i i said before in many times and for many convictions that is unavailable including for those who have a debt already referred to debt collection agencies even if he could access that it's not a real option for most people to lose ri for most people and that's what the district court found when it reviewed these alternative provisions thank you thank you it's martin thank you don't think that providing or providing to some small subset of individuals the discretionary option of converting to community service changes the nature of the assessment it neither changes changes the nature or the purpose of the assessment for example that the florida courts and controllers association doesn't expect to collect  the vast majority of outstanding legal financial obligations because they are so often assessed against those who are indigent so the state itself does not necessarily expect that in all instances they will be successful raising revenue in this way because of the high rate of indigency among those that that cost and fees are assessed against but i don't think that that that expectation or expectation that it may i believe that's footnote in bearden so while there is evidence in the record upon which the district court made his determination that show that upwards the vast majority of people convicted who are these elephants are in fact indigent determined to be indigent upon conviction and by public defenders offices and are assigned the public defender determined to be indigent by the which is why they have a low expectation of resolution or determined to be indigent by the county is when they look at the likelihood of getting these ela photos returned castle may ask another question before time runs for even as it affirms the district court decision st of all everyone agrees that nullifying amendment for would be an absurd result that should be avoided those are the words of the state itself in the hearing over the course of this case but how i would answer your st question this is not necessarily the classic instance of severability because severability analysis is usually not undertaken when there is an unconstitutional application of a particular statute it was not undertaken in bearden it was not cited the primary undertaking of the court is to extend a benefit to the class discriminatorily included when their explanation is found to be unconstitutional to enter your question and compare this case to the case in gray it would be an odd result indeed if a court could sever a provision which is explicitly included in the language of the amendment where would you you are there's no way to challenge that as a violation procedural the process your honor what we're challenging is the system set up by as b seven  at which fails to provide procedural due process to the plaintiffs and to others in the state of florida it's that implementation which is dictated by the statute that we think is severely deficient in particular the statute assigned to the secretary of state and to supervisors of elections the requirement that they determine eligibility or inaudibility and the state has been what we're challenging is the family and failure to adequately provide adjudicative action to the general law sets up a scheme in which the secretary of state in the supervisor of elections is tasked with making eligibility determinations and they have been universally unable to make a single ineligibility determination based on that statute that's not that's not a challenge to the process undertaken in passing the statute but it's a challenge substantive system that the statute set up sets up that it that it's not compliant with the requirements of due process no matter what the legislature has set up it has required in essence  adjudicatory process by someone to figure out whether a felon meets the eligibility requirements right yes in fact it is signed it very specifically to the super to the secretary of state in the st instance a then the supervisor of election and in combination and those two bodies the defendants in this case have been both unable to define eligibility in a way that can be followed by voters and have been it defines it defines completion of all terms to mean within the four corners of the sentencing that can itself sentencing document to include full payment of restitution and full payment of fines and fees if it paid any attention at all a to the text of the amendment they were simply saying that when the voters of florida read all of terms of sentence they understood that to  mean financial terms in fines cost fees no less than prison so your argument as i understand that there's no way that voters whether or not if judge tangles ruling is sustained you would necessarily raise the question of whether or not the people of florida would have adopted yes amendment if it had said your honor if i can just suggest to you what to amend it for would have had to say which is that the felon must complete all terms of sentence except that some felons if they are unable to pay their fines fees and costs do not have to pay them but all other felons do and for the for the courts to decide that the people of florida would have said yes to that and it would have been would have been different to that to those carry out i think is is really quite the requests for advisory opinion followed the template offered by a judge when he really advisory opinion process so they follow that and the state has