Then came a case this year involving a referendum that Floridians approved to restore the voting rights of former felons and a law that the Republican-controlled legislature then passed setting a major limitation: Only felons who don’t owe money to the state can vote.
The voting rights issue was one Lagoa had been vocal about while on Florida’s high court, repeatedly challenging the arguments made by attorneys for former inmates, who could become a sizable voting pool in a state with a history of close presidential contests.
When the matter resurfaced before her on the U.S. Court of Appeals for the 11th Circuit in Atlanta, Lagoa did not recuse herself.
Instead, she and another Trump appointee, who also had been a state judge in Florida, penned a 25-page order rejecting calls for their disqualifications, saying the federal case was distinct from the state one. We “carefully considered whether disqualification is legally required,” Lagoa and Robert Luck wrote. “We’ve concluded that it is not.”
They became the deciding factor in a 6-to-4 ruling that overturned a lower-court finding that the payment provision amounted to an unconstitutional poll tax that discriminates against poor former prisoners.
The reversal is expected to keep many of the 85,000 felons who had registered to vote in the swing state from casting ballots in November. Trump won the state in 2016 by fewer than 113,000 votes.
The 11th Circuit decision has touched off a last-minute campaign by Democrats to see how many former inmates can pay off their court debts to cast ballots in November. Billionaire Mike Bloomberg, a former Democratic presidential candidate, announced this week he had raised $16 million in donations, enough, he hopes, to cover the court debt of more than 30,000 former inmates by paying off the smallest debts first.
But the effort elicited cries from Republicans that Bloomberg’s campaign would amount to paying people for votes, and on Wednesday, Florida’s attorney general announced she had sent letters to the FBI and Florida’s Department of Law Enforcement requesting investigations on whether incentives are being offered for votes.
Disputes over whether a judge should sit out a case rarely surface. In part, that is because judges automatically are not assigned to cases that might potentially conflict with personal, financial and professional interests they report to the court.
With the sky-high stakes in the November election, Lagoa’s involvement drew protests from attorneys involved in the case and members of Congress.
Senate Democrats wrote to Lagoa in July urging her to “honor” her commitment to step back from cases in which she had previously participated as a state judge. Plaintiffs, led by a high-profile civil rights attorney, filed a motion asking Lagoa to recuse herself.
Howard Simon, a longtime director of the American Civil Liberties Union of Florida, and one of three lawyers who wrote the ballot measure, called Lagoa’s defense of why she stayed in the federal case highly technical and not in keeping with the spirit of avoiding matters she had previously presided over. “She said she would recuse,” Simon said. “Involvement is involvement.”
Lagoa’s stance could be an explosive issue should Trump nominate her to fill the Supreme Court vacancy. Democrats say her actions should prompt heavy scrutiny about how she would conduct herself on the high court, beginning with a possible appeal of the Florida case, as well as challenges that would undoubtedly flow from a disputed or razor-thin presidential election result.
Questions this week from The Washington Post for Lagoa about calls for her recusal were handled by court officials, who pointed to her 25-page order as a response.
Lagoa may also face recusal questions about cases involving her husband, attorney Paul C. Huck Jr., and his law firm, Jones Day. The firm has long represented the Trump campaign.
Trump, who continued his assault on mail-in balloting this week, left little doubt that he seeks to fill the Supreme Court vacancy in part to help him win reelection in the event the outcome winds up in the courts.
“With the unsolicited millions of ballots that they’re sending, it’s a scam, it’s a hoax . . . so you’re going to need nine justices up there. I think it’s going to be very important,” Trump told reporters outside the White House on Tuesday. Filling the seat before the election “would be a very good thing,” Trump added, “because you’re going to probably see it . . . They will be able to do something here because paper ballots are very simple, whether they counterfeit them, forge them, do whatever you want.”
Trump has said he will announce his Supreme Court nominee on Saturday. He met this week with Amy Coney Barrett, a favorite of evangelicals whose paramount concern is whether the next justice would vote to reverse the abortion rights decision of Roe v. Wade.
But several Republicans have urged Trump to pick Lagoa, saying the Miami-born daughter of Cuban exiles could solidify Trump’s standing in the Latino community in Florida, potentially tipping a close race to his favor in the state with the third-most electoral college votes.
The ballot measure restoring voting rights to most former inmates was approved overwhelmingly in November 2018 by nearly two-thirds of the electorate and garnered a million more votes than either major party’s candidate for governor.
The measure excluded those convicted of sexual assault or murder but might have restored voting rights for as many as 1.4 million Florida residents.
But in the year that followed, a partisan battle broke out over how many former inmates should benefit from the law and what exactly was intended by ballot language that “all terms” of a former inmate’s sentence had to be completed for a felon to regain the right to vote.
A law passed by the Republican-controlled state legislature and signed by Gov. Ron DeSantis (R) last summer appeared to thwart the potential reach of the measure, adding a requirement that fines, fees and restitution be considered part of an inmate’s sentence.
County clerks soon reported that fines owed by those who had completed their terms of incarceration or were on probation totaled more than $1 billion. The average amount owed was $1,500, and there was no statewide system for inmates to track what they owed or where to pay it.
DeSantis asked the state Supreme Court, which included Lagoa among the majority he had appointed, for an advisory opinion clarifying whether the phrase “completion of all terms of sentence” includes the payment of all financial obligations.
Attorneys for the ACLU argued that fines were not in the text of the measure that appeared on the ballot. It had read: “This amendment restores the voting rights of Floridians with felony convictions after they complete all terms of their sentence including parole or probation.”
“Adopting the governor’s position leads to an absurd result that contravenes the chief purpose of the amendment ratified by the voters,” Anton Marino, an ACLU of Florida attorney, told the court.
But in nearly two hours of sometimes contentious questioning of attorneys for the felons, the justices had made clear they were leaning toward backing DeSantis.
When an attorney for the Florida secretary of state read part of the ballot measure and referred to parole and probation as “the entire universe of punishment” a felon may receive beyond incarceration, he was quickly corrected.
Lagoa cut off the attorney for the state, Mohammad O. Jazil, saying parole and probation appeared to be just examples of terms judges could impose, not the only ones: “It doesn’t just mean that someone satisfies and gets their rights restored upon leaving jail,” Lagoa said, flicking her hand in the air, a video of the hearing shows. “I mean, it means there’s something more, including that language ‘parole and probation.’ ”
With the judges seeming to help make the state’s point, Jazil broke into a smile and exhaled. “Yes,” he replied.
Lagoa and Luck were no longer on the state Supreme Court when it issued its advisory opinion in January siding with DeSantis.
Two weeks after that hearing, the U.S. Senate convened to vote on Lagoa’s nomination to the federal appeals court. She had testified in October and submitted 75 pages of responses to additional questions posed by senators.
Among them: “How do you interpret the recusal standard for federal judges and in what types of cases do you plan to recuse yourself?” asked Sen. Patrick J. Leahy (D-Vt.).
“A judge must recuse herself where her impartiality ‘might reasonably be questioned,’ ” she wrote. If confirmed, Lagoa added, she would recuse herself from “cases in which my husband or his law firm appeared, as well as cases involving either the Supreme Court of Florida or the Florida Third District Court of Appeals while I was a member of either court.”
After Lagoa was easily confirmed, 80 to 15, a constitutional challenge to the Florida law had made its way to U.S. District Judge Robert L. Hinkle in Tallahassee.
Hinkle, an appointee of President Bill Clinton, found the legislation requiring felons to pay outstanding fees, fines and restitution acted like a voting tax — and a convoluted one since the state had not created a system that would enable felons to identify their financial obligations.
“The Twenty-Fourth Amendment precludes Florida from conditioning voting in federal elections on payment of these fees and costs,” Hinkle wrote, referencing the constitutional amendment that bans poll taxes.
On July 1, the 11th Circuit issued an order putting Hinkle’s ruling on hold. Lagoa and Luck participated.
The decision prompted lawyers for former inmates to take the rare step of asking the pair and a third judge, Andrew Brasher, to recuse themselves. Brasher had been solicitor general of Alabama and involved in a similar case in that state.
Less than a week later, Senate Democrats ratcheted up the pressure.
On July 21, every Democratic member of the Senate Judiciary Committee — including six who had voted to confirm her — signed letters to Lagoa, Luck and Brasher asking them to honor their commitments to disqualify themselves from the case. Brasher recused himself that day.
“Neither Judge Lagoa, nor any committee of this Court responded to the July 21, 2020 letters from the senators about litigation that was pending before the Court,” 11th Circuit Executive James P. Gerstenlauer said in an email.
Lagoa and Luck, however, issued a lengthy, detailed explanation for their decisions for staying in the case.
The two contended that the state and federal cases were separate and distinct, “involving different persons, different issues, and different courts,” they wrote. “We were never judges, lawyers, or litigants in this case, and did not have anything to do with this case, until after we became judges on this Court and Appellants filed their motion for rehearing.”
Paul Smith, vice president for litigation and strategy at the nonprofit Campaign Legal Center, which filed the petition, said in an interview that the plaintiffs had a strong enough argument to press for recusal.
Lagoa and Luck disagreed.
“An objective, disinterested lay person . . . would not reasonably entertain a significant doubt about our impartiality in this case,” they wrote.
Judicial ethics experts had different takes on Lagoa’s decision to participate, and distinguished between the letter and intent of the judicial code of ethics.
The conduct rules say judges should disqualify themselves when their “impartiality might reasonably be questioned,” including when a judge has “served in governmental employment and in that capacity participated as a judge (in a previous judicial position), counsel, adviser, or material witness concerning the proceeding.”
Charles Geyh, a leading authority on judicial ethics, agreed that technically a state case on the meaning of the Florida amendment is not the same as a federal court ruling on the constitutionality of that measure. But he said the spirit and purpose of the rules on disqualification are to ensure that appellate review is “unpolluted by judges who have a professional interest in saving face by affirming” a prior position.
Geyh, a professor at Indiana University’s Maurer School of Law, said if he were a judge, he would disqualify himself because of concerns about public perception.
But, he added, “because it is not completely unreasonable to claim that as a state judge, all Lagoa did was examine what the Florida law meant, and then as a federal judge, rule on whether what the Florida law meant was unconstitutional, the two are distinct enough to permit her to participate in both without a risk of self-contradiction that would call her impartiality into question.”
Arthur Hellman, a University of Pittsburgh law professor, said Lagoa’s detailed order makes a persuasive argument that recusal is not required primarily because of the difference between a case and an issue. He pointed to numerous examples of Supreme Court justices taking up cases involving identical legal issues to those they previously ruled on as circuit court judges, but in distinct cases.
Lawyers representing DeSantis criticized the effort to disqualify the two judges as frivolous and said Lagoa and Luck had become “targets of extraordinary attacks” by Democratic senators “intended to intimidate them into recusing themselves.”
The state dismissed concerns about the types of questions Lagoa and Luck had asked during oral argument at the Florida Supreme Court.
“Judges ask questions during oral argument for a variety of reasons, and such questions do not come remotely close to implicating the concerns that arise when judges sit in review of their own prior rulings,” said the governor’s legal team, led by attorney Charles J. Cooper.
“This 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,” Cooper wrote.
Controversy is what remains of Lagoa’s involvement, and it has only been amplified by her potential nomination.
Two days before Ginsburg died and Trump and McConnell would discuss Lagoa’s name in an initial phone call about filling her seat, the South Florida Sun Sentinel published an editorial about the 11th Circuit decision. The headline read, “Court allows rich felons to vote in Florida, but not the poor.”
The paper said neither Lagoa or Luck “should have taken any part” in the appellate review in Atlanta. “During the Tallahassee hearing, Lagoa was conspicuously hostile to the ex-felons’ case and asked more pointed questions than any other justice. She went to the federal court with an undisguised bias on the issue.”
Simon, the co-author of the amendment, said the issue would follow Lagoa to Washington.
“I would think that members of the Senate Judiciary Committee would be very troubled by her commitment that she would recuse herself from cases involving the Florida Supreme Court, which she ended up not doing,” Simon said. “I think they may wonder if she was being less than straightforward.”
Lori Rozsa in Miami contributed to this report.