Universal suffrage is an essential component of a successful democracy. And as the world’s oldest modern democracy, one might expect the United States to boast high voter turnout rates and accessible re-enfranchisement for the previously disenfranchised.
It doesn’t. In fact, the United States is the only democracy in the world that denies people the right to vote even after they are released from prison. As of 2016, a shocking 6.1 million Americans were barred from voting because of felony disenfranchisement or state-level laws that restrict voting rights for those convicted of felony-level crimes. In recent years, though, this has begun to change: although Maine and Vermont are still the only states that allow ex-felons to vote without any restrictions, the National Conference of State Legislatures reports that 39 states offer some type of restoration of voting rights to ex-felons.
Florida is new to this list. A recent amendment to the state constitution, Amendment 4, promises to re-enfranchise most ex-felons who have completed all terms of their sentence. What was originally seen as a victory for voting rights advocates, however, has become more complicated with the passage of SB 7066, a senate bill clarifying that completing “all terms of a sentence” includes fulfilling any and all financial obligations. As the debate about whether re-enfranchisement can be restricted based on wealth winds through the courts, the fate of over a million potential voters in one of the most important battleground states is on the line.
Dashed Hopes of Re-Enfranchisement
Until 2018, Florida was one of only three states that banned former felons from voting for life, a relic of 19th century laws designed to prevent newly freed slaves from exercising their political voice. In 2018, however, this changed. Through a ballot initiative in the midterms, Florida voters overwhelmingly passed Amendment 4, which restores the right to vote to most people with felony convictions once they finish “all terms of their sentence” (it excludes those convicted of murder or felony-level sex offenses). Passing with a 65% majority and bipartisan support, Amendment 4 was a triumph for voting rights advocates. It potentially restored the right to vote to 1.4 million Floridians, a quarter of all disenfranchised felons in the country, making it one of the largest single re-enfranchisement events in American history.
Only a few months later, though, this victory was dramatically curtailed: in May, the Florida legislature passed and Republican Gov. Ron DeSantis signed Senate Bill 7066, which clarified that completing “all terms of their sentence,” as Amendment 4 requires, includes paying all “financial obligations” associated with a sentence, including court-ordered fines, fees, victim’s restitution, and any other monetary obligations. According to SB 7066, until felons have paid everything they owe, they cannot legally be re-enfranchised.
The problem is that the vast majority of former felons in Florida simply cannot pay their outstanding fees. From 2014 to 2018, the Florida Clerks and Comptrollers labeled 83% of fines as having “minimal collections expectations,” meaning the courts are aware that defendants cannot afford these fines. Similarly, Daniel Smith, a political science professor at the University of Florida, used data from 48 of the 67 counties in Florida to estimate that 82.4% of former felons in the state cannot be re-enfranchised under the bill because of money owed.
SB 7066 was quickly labeled a “poll tax” that unjustly and possibly unconstitutionally targeted poor and minority felons, and was challenged in court. In October 2019, a federal court judge ruled that the payment requirement in SB 7066 is unconstitutional and issued a preliminary injunction. Three months later, in January 2020, the Florida Supreme Court disagreed and issued an advisory opinion that supported Gov. DeSantis and the bill. Then, in February, the 11th Circuit of Appeals upheld the preliminary injunction from October, arguing that the law unconstitutionally discriminates based on wealth. This ruling, however, applied only to the 17 plaintiffs in the case and did not determine the constitutionality of the law. This will be decided in another trial and the resulting decision will apply to all felons in Florida, not just the 17 plaintiffs. This trial is currently delayed due to the COVID-19 pandemic, but whatever the eventual result, both sides expect the decision to be appealed and for the case to ultimately be decided by the U.S. Supreme Court.
Unconstitutional or Simply Unfair?
Throughout the various trials that have already happened and those that remain, the central debate remains: is a bill that prevents some people from voting based only on wealth constitutional? Nancy Abudu, deputy legal director for the Southern Poverty Law Center, which is representing several of the plaintiffs, has argued that SB 7066 holds ex-felons’ right to vote hostage. “This is an unconstitutional poll tax or an unconstitutional form of wealth-based discrimination,” she told the News Service of Florida in January.
Racial disparities in wealth complicate the matter further. African-American former felons are both more likely to owe money and more likely to be unable to pay. In Palm Beach and Sarasota counties, for instance, fewer than one in 10 black individuals who have completed all other terms of their sentence have fulfilled their financial obligations, while more than one in five white individuals have. These racial inequalities contribute to mass voter suppression of African Americans, and especially African American men, who are disproportionately disenfranchised due to former convictions and who then lose the ability to exercise their political voices.
So far, federal courts have agreed in theory that the law is unconstitutional, even though there has not yet been an overarching ruling on its constitutionality. The February federal appeals court ruling was especially significant. A unanimous decision by three judges from the U.S. Court of Appeals for the 11th Circuit in Atlanta, the ruling states that it is unconstitutional to force ex-felons in Florida to pay all financial obligations before registering to vote. Florida has a right to disenfranchise all felons, the court argued, but once voters passed Amendment 4, indicating a willingness to move toward re-enfranchisement, the state cannot constitutionally discriminate based on ability to pay. “Once a state provides an avenue to ending the punishment of disenfranchisement,” the ruling reads, as Florida voters clearly did by passing Amendment 4 with a nearly two-thirds majority, it must “do so consonant with the principles of equal protection.” Punishing certain ex-felons more harshly based only on their wealth, the ruling continues, violates the Equal Protection Clause of the 14th Amendment, which promises equal treatment under the law. Under this argument, since SB 7066 explicitly applies the law differently based on ability to pay, it is unconstitutional.
The Florida Supreme Court disagreed, siding with Governor DeSantis’ lawyers and arguing that voters who approved Amendment 4 did not universally re-enfranchise ex-felons, thereby taking away Florida’s right to disenfranchisement of former felons. Instead, voters re-enfranchised only felons who have “paid their debt to society.” According to DeSantis, voters would not have so overwhelmingly voted for the Amendment had they known that exceptions to “all terms of their sentence” would be made for poor felons. Allowing former felons to vote regardless of whether they have paid, DeSantis went on, would do “irreparable harm” to Florida.
Federal judges found this argument flimsy, responding that it is impossible to claim that Florida voters would have voted differently had they known that the Amendment would apply to poor felons who simply cannot pay their fines as well as to wealthier individuals.
As the case currently stands, the federal appeals court ruling allowed former felons to vote in the Florida Democratic primary elections, which were held on March 17th. The status of SB 7066 is not, however, anything approaching stable. The case will now return to a Florida trial court, which will be tasked with deciding whether the law is a poll tax or possibly invalid under another provision of the Constitution. Whatever the ruling is, the case is likely to make its way to the Supreme Court, meaning it will be months or even years before Floridian ex-felons with outstanding payments receive a clear answer about their voting eligibility.
Confusion and Consternation
Meanwhile, confusion abounds in Florida as to who can vote without fear of being accused of voter fraud. Much of the confusion stems from the fact that many former felons don’t know how much they owe, and it can be incredibly complicated to find out the answer. This is because there is no statewide system to track how much former felons owe. Each of the state’s 67 counties has its own clerk and courts office, each with vastly different systems for tracking past cases. Some have digital data, some don’t. Some track cases and money that has been owed for decades, and others don’t. Some keep track of money that has been sent to other collections agencies, while others neglect these records entirely. Besides all this, some counties misplace necessary documents or don’t even keep them in the courts office — in Miami-Dade county, for instance, the most populous county in the state, many necessary documents are held by the police department, making them even harder to access.
As a result, most former felons do not know how to confirm that they’ve fulfilled their financial obligations, and there is little help available to them. This uncertainty leads many to decline to register to vote out of fear that they could be doing so illegally — writing on a registration form that your rights have been restored when they technically have not been is a felony. The risk is too great, said Toshia Brown, chief of Voter Registration Services at the Department of State’s office, in her deposition: If you don’t know, “I would not register to vote.”
For felons who do know that outstanding financial obligations will prevent them from voting, asking for a modification to their sentence is possible, but complicated. Former felons who genuinely cannot fulfill their financial obligations can petition the court to either waive these obligations or turn them into community service hours instead. This involves multiple steps: first, former felons must reach out to the Florida Rights Restoration Coalition (FRRC), which will then contact the public defender’s office to investigate the file. If there are indeed outstanding payments that the individual is unable to make, the public defender’s office will enlist a pro bono attorney to file a court motion to modify the original sentence, at which point the court may or may not agree to do so. “This is not something where a non-lawyer can easily figure it out,” Miami-Dade public defender Carlos Martinez told ABC News.
Implications for the 2020 Elections
Although it is indisputable that Florida is an important — if not the most important — battleground state in the 2020 election, it is not immediately clear how re-enfranchisement of Floridian ex-felons could impact the result of the race. It is true, however, that of over 21 million Floridians, only 13 million are registered voters. If all 1.4 million newly eligible former felons register to vote, they would constitute 10% of the voting population. In a state that decided the results of the 2000 presidential election by under 600 votes and that has voted for the eventual president in eleven of the past twelve elections, that is no small number.
It is unlikely, however, that the effect will be that dramatic. According to Desmonde Meade, who led the Amendment 4 initiative in 2018 but has remained uninvolved in the lawsuits, at most 50,000 felons have registered since Amendment 4 took effect. Political science professors Michael McDonald and Dan Smith agree that it is doubtful that Amendment 4 will add 1.4 million ex-felons to the voter rolls.
In terms of the partisan skew of felon voters, voting rights is traditionally a Democratic cause, leading some to believe that ex-felons are more likely to vote for the eventual Democratic nominee. Additionally, ex-felons are disproportionately people of color, who are more likely to lean left. This skew, however, is by no means a guarantee. There are few concrete indications that most ex-felons register as Democrats, and felons are disproportionately poor, placing them in a group that historically tends to have low voter turnout.
As it is, we will have to wait and see how the case progresses from trial court to potentially higher courts in later months and years. Though federal courts so far have ruled that SB 7066 denies individuals their 14th Amendment right to equal protection under the law, the current Supreme Court has a strong conservative majority that may disagree with those rulings. No matter the result, though, the Florida case is just one step is a long road for felon re-enfranchisement in the U.S. Hopefully in the coming months and years, we will see more states relaxing restrictions on voting rights for felons and working to fulfill our democracy’s promise of universal suffrage.
Image source: Flickr/Gage Skidmore
