TALLAHASSEE, Fla. – Two federal judges who formerly served on the Florida Supreme Court have refused to step aside from a voting-rights case that could determine whether hundreds of thousands of convicted felons are eligible to cast ballots in the November presidential election.
Plaintiffs in the case and 10 Democratic U.S. senators argued that 11th U.S. Circuit Court of Appeals Judges Barbara Lagoa and Robert Luck should not take part in Gov. Ron DeSantis’ appeal of a May ruling that said the state can’t deny the right to vote to felons who are unable to pay “legal financial obligations” associated with their convictions.
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Lagoa and Luck were involved in litigation about the felons-voting issue last year while serving on the Florida Supreme Court before joining the Atlanta-based appeals court.
But the Florida case and the federal legal challenge are “different kinds of proceedings,” “in different courts,” “with different issues,” and “different players,” Lagoa and Luck wrote in a 25-page decision Monday.
The plaintiffs contended that the involvement of Lagoa and Luck in the issue at the Florida Supreme Court should disqualify them from taking part in the appeals-court case. Democratic members of the U.S. Senate Judiciary Committee last week accused Lagoa and Luck of judicial misconduct and reneging on pledges they made prior to their Senate confirmations to the appeals court.
But relying on previous court decisions in separate cases, Lago and Luck, who were appointed to the federal appellate court by President Donald Trump, said they had no reason to step aside.
The Florida Supreme Court proceeding and the federal case “are not the same or even similar types of cases, and do not have the same or even similar issues,” they said.
The legal wrangling over the judges has come in a high-stakes challenge to a 2019 Florida law requiring felons to pay court-ordered “legal financial obligations” -- fees, fines, costs and restitution -- associated with their convictions to be eligible to vote. The law, approved by Republican legislators and signed by DeSantis last year, was aimed at implementing a 2018 constitutional amendment restoring voting rights to felons “upon completion of all terms of sentence, including parole or probation.”
Plaintiffs maintain that linking voting rights and finances amounts to an unconstitutional “poll tax,” while the Republican governor contends that the Florida law carries out the language of the constitutional amendment and the intent of its supporters.
U.S. District Judge Robert Hinkle in May cemented a previous ruling in which he found that the state cannot deny the right to vote to felons who are “genuinely unable to pay” their court-ordered debts. DeSantis appealed the decision.
In an unusual move, the 11th Circuit agreed to DeSantis’ request for an “en banc,” or full court, initial review of the appeal. Three-judge panels almost always conduct initial reviews. The court also put Hinkle’s decision on hold and scheduled oral arguments in the case for Aug. 18, the same day as Florida’s primary elections.
Luck and Lagoa, who were appointed to the Florida Supreme Court by DeSantis shortly after he took office last year, participated in oral arguments at the state court Nov. 6, after the Republican governor sought an “advisory opinion” about the constitutional amendment. They were confirmed to the 11th Circuit later in November, prior to the state court issuing an opinion Jan. 16 in support of DeSantis’ position on the amendment.
An advisory opinion to the governor “is a unique type of proceeding under Florida law, with no federal equivalent,” the judges wrote in Monday’s decision.
“There is no trial or intermediate appeal. No facts are developed for the record -- there is no record. The opinion of the state Supreme Court, as the name suggests, is advisory only,” they added.
The two cases were considered by “different judicial systems,” the judges argued.
“Our system of federalism rests upon the guarantee that our federal and state governments retain their separate sovereign identities, and the state court systems are no more part of the federal court system than the state legislatures are part of Congress. The suggestion that the advisory opinion to the governor proceeding and this case are the same ‘proceeding’ misapprehends this basic premise of our national constitutional structure,” they wrote.
Lagoa and Luck also said the Florida court arguments did not touch on the federal issues involved in the voting-rights litigation.
And the former justices dismissed allegations that judicial canons require them to be disqualified from the case.
Opinions “formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible,” they wrote.
“Thus, judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge,” they added.
Which judges participate in the voting-rights decision could have a significant impact on Florida’s electorate this fall, when Trump will be at the top of the ticket in the Nov. 3 general election. Hinkle’s ruling, which is now on hold, would open the door for hundreds of thousands of convicted felons to register and vote without taking any further action.
In addition to Luck and Lagoa, the plaintiffs also sought to disqualify 11th Circuit Judge Andrew Brasher, a former Alabama solicitor general who recused himself from the case last week.
Another of the 12 judges on the federal appeals court, Robin Rosenbaum, disqualified herself from the case earlier. Rosenbaum was a federal district judge in South Florida before being appointed to the appeals court in 2014.
Trump has appointed half of the conservative-leaning court’s judges. In addition to Luck, Lagoa and Brasher, the president also tapped Judges Kevin Newsom, Elizabeth Branch and Britt Grant.
President George W. Bush appointed Chief Judge William Pryor, and former President Bill Clinton appointed Judge Charles Wilson. Former President Barack Obama appointed Judges Beverly Martin, Adalberto Jordan, Jill Pryor and Rosenbaum.