TALLAHASSEE, Fla. (The News Service of Florida) — Gov. Ron DeSantis’ lawyers are trying to swat down an attempt to disqualify two former Florida Supreme Court justices from hearing a high-stakes elections case that will go before a federal appeals court next month.
Plaintiffs in the case and 10 Democratic U.S. senators are asking that 11th U.S. Circuit Court of Appeals Judges Barbara Lagoa and Robert Luck step aside from the voting-rights case, which could determine whether hundreds of thousands of convicted felons with outstanding “legal financial obligations” can cast ballots in the presidential election this fall.
Lagoa and Luck were involved in litigation about the issue last year while serving on the Florida Supreme Court before joining the Atlanta-based appeals court.
In a brief filed Wednesday, lawyers for the state called the Democrats’ targeting of the judges “extraordinary attacks … intended to intimidate them into recusing themselves from this case.”
The plaintiffs contend 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 on Tuesday accused Lagoa and Luck of judicial misconduct and reneging on pledges they made prior to their Senate confirmations to the appeals court.
But the state’s lawyers on Wednesday railed at the attempt to disqualify the former Supreme Court justices.
“Verbal assaults on the judiciary have become regrettably common in American politics, and they pose a growing threat to the rule of law,” DeSantis’ lawyers said in the 16-page court filing, turning to Alexander Hamilton and the Federalist papers to support their position. “The Framers anticipated this type of attack on the courts: because of the ‘natural feebleness of the judiciary,’ it would be ‘in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches.’ ”
The Democrats don’t have a role in whether the judges participate in the case, the state’s lawyers suggested.
“Ironically, while movants and their Senate allies invoke statutes and ethical canons designed to promote public confidence in the judiciary, it is they who threaten the judiciary’s independence by calling into question the integrity of two of this court’s members without even a colorable basis for doing so,” the state’s attorneys argued.
The spat over the judges, who were appointed to the appeals court by President Donald Trump, is the latest twist in a the closely watched challenge to a 2019 Florida law requiring felons to pay fees, fines, restitution and court costs 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 that restored voting rights to felons “upon completion of all terms of sentence, including parole or probation.”
The 11th Circuit is considering DeSantis’ appeal of a May decision by U.S. District Judge Robert Hinkle that cemented an earlier ruling in which he said the state cannot deny the right to vote to felons who are “genuinely unable to pay” their court-ordered debts.
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 Nov. 6 in a separate Supreme Court case about the constitutional amendment. They were confirmed to the 11th Circuit later in November, prior to the state court issuing an advisory opinion Jan. 16 in support of DeSantis’ position on the amendment.
The former justices “actively participated” in the arguments concerning the Florida case, the plaintiffs’ lawyers argued in a motion to disqualify the judges filed last week.
But the DeSantis administration’s lawyers emphasized Wednesday that the arguments at the state court were not related to the federal case.
The advisory opinion issued by the Supreme Court “is nothing like a lower court decision subject to appellate review,” attorneys representing DeSantis and Secretary of State Laurel Lee wrote.
“This (federal court) appeal plainly is not the same proceeding as the one that took place in the Florida Supreme Court, even if the two matters could somehow be said to be part of a single controversy,” the state’s lawyers wrote. Because of that, the judicial codes of conduct cited by the Democrats and the plaintiffs “are wholly inapplicable,” they added.
The DeSantis administration also argued that the plaintiffs waited too long to seek the judges’ recusal.
“Movants knew about the issues raised in their disqualification motion long before the state first requested en banc review, and their failure to file their motion sooner is a patent abuse of the recusal statute of the sort that this court ‘will not tolerate,’” the brief said, citing a separate 11th Circuit decision.
The plaintiffs also sought to disqualify Judge Andrew Brasher, a former Alabama solicitor general who joined the appellate court on June 30, because he participated in litigation “challenging the same government policy” as the Florida challenge in a 2016 case.
Brasher, another Trump appointee, on Tuesday recused himself from the Florida case because Alabama’s attorney general had submitted what is known as an amicus, or friend of the court, brief in the Florida felons-voting case. He did not cite the separate case as a reason for stepping aside.
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.
One of the 12 judges on the federal appeals court, Robin Rosenbaum, already has disqualified herself from the case. 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.