Herman Schwartz
It is no secret that red state Republicans are working intensively to suppress the Democratic vote, particularly among minorities and the poor. It must therefore have been particularly galling for Florida Republicans this past November when nearly two thirds of Florida voters approved a ballot initiative amending their state constitution to eliminate the most potent weapon in the state GOP arsenal – a lifetime ban on voting by felony offenders even after they have completed their sentences.
To undercut the amendment, now Article VI Section 4 of the Florida Constitution, this May Florida’s very red legislature passed a complicated and probably unconstitutional statute that will produce many arbitrary and inconsistent outcomes and be an administrative nightmare. It went into effect July 1 and will result in most of the intended beneficiaries of the amendment remaining disenfranchised. Just a few weeks earlier on June 6th, Governor Rick DeSantis signed legislation making it much more difficult, if not impossible, for Floridians to adopt any more ballot initiatives.
Lifetime disenfranchisement has been the weapon of choice for Florida’s political rulers since 1868. Today the state leads the nation with more than a million and a half disenfranchised ex-felons, almost 10.5% of Florida's total voting age population. Since blacks are disproportionately arrested and convicted, they account for a disproportionately large share of the disenfranchised. In 2016 more than 418,000 black Florida ex-felons could not vote, nearly one in five of the 2.3 million blacks of voting age in the state in the state, almost twice the proportion of disenfranchised whites.
Today, blacks vote overwhelmingly for Democrats, so that even if a small fraction of Florida's black ex-felons vote, Florida Republicans could be facing a troubling future. One reason is that black ex-felons vote more than do whites. Of the 19,500 ex-felons who voted in the 2016 election, 58% registered as Democrats, most of them black. Only about 24% of the ex-felons registered as Republicans, most of whom were non-black; the rest registered with neither party. One conservative estimate is that re-enfranchising all ex-felons could net the Democrats 48,000 votes, a not insignificant number since Republican Governor Ron Desantis won by less than 34,000 votes and Senator Rick Scott by only about 10,000.
Amendment VI section 4 restored voting rights to all ex-felons “upon completion of all terms of their sentence including parole or probation” except those convicted of "murder or a felony sex offense." Even before the amendment went into effect in January, DeSantis made it clear that the Republicans would try to undermine it with a so-called "implementing" law that would exclude some ex-felons entirely by broadly defining “murder” and “felony sex offense”, but mostly by imposing heavy financial burdens on the rest.
Supporters of the Amendment argued that there was no need for legislation since the amendment is clear. Not entirely. Although “murder” raised few definitional problems, “felony sex offense” can include a wide range of offenses from pornography to rape. The Republicans initially defined the phrase to include all of the 45 separately numbered sexual offense provisions in the Florida Criminal Code, many of which include multiple subdivision crimes, and all of which incorporate "similar” offenses in other states. Because of a public outcry against the inclusion of many minor offenses, the bill was amended to cover only the Florida ex-felons registered as sexual offenders, (28,548 as of 2018), and a few specific sex offenses.
Even for those not affected by these exclusions, the road to re-enfranchisement will be long and hard, for the law imposes financial and administrative burdens that few ex-felons will be able to satisfy.
Heavy financial burdens for minor offenses are common in America’s criminal justice systems. The events in Ferguson, Missouri arising from the police killing of Michael Brown in 2014 revealed that many local and state agencies, particularly the courts, are financed largely by fines, fees and other penalties imposed on those who get entangled with the law. Florida, for example, funds its courts entirely from exceptionally high fines and fees.
The primary victims of this system are of course the poor, who in Florida as elsewhere are disproportionately African American. They become the “financiers” of these public agencies, because their frequent inability to pay the initial fine and fees leads to more fines, more fees, and increasing interest accruals. A $50 traffic ticket can soon balloon into a multi-thousand dollar “financial obligation”. According to Peter Edelman, 10 million Americans owe $50 billion in accumulated fines, costs, fees, and charges for room and board in jails and prisons.
Making the situation even worse, judges often suspend drivers licenses for the nonpayment of fines - over 78% of the licenses Florida suspended in 2017 were for not paying a court debt. Suspension makes it even harder to find or keep a job and to pay off the debts, especially since reinstating a license in Florida can cost up to $500.
Not only are Florida’s court costs and fees especially high, but the state has created over 115 different types of such fees and surcharges, the second-highest number in the nation. Between 1980 and 2010, the state created more than 20 new types of fines and fees and enacted 50 new fines and fees.
The November amendment conditions the restoration of voting rights on “completion of all terms of a sentence”. The “implementing” law passed by the Florida legislature defines “completion” to mean “Full payment of restitution ordered to a victim by the court as a part of the sentence… [and] Full payment of fines or fees ordered by the court as a part of the sentence or that are ordered by the court as a condition of any form of supervision.” (emphasis added)
These “financial obligations” as the statute calls them, will be hard if not impossible for most ex-felons to satisfy, since they face so many obstacles when they go job-hunting, especially if they are black. In 2014 men with criminal records accounted for about 34% of all non-working men ages 25-54. One result is that between 2014 and 2018 the Florida courts imposed over $1billion in felony fines but only 19% of those fines were ever paid.
Also, an ex-offender who is paying off the fines, etc., in installments, will not be able to vote until the full amount is paid. This can take decades and in many cases can never be paid in full, for Florida fines and penalties run into the hundreds of thousands and even millions. One woman who has been steadily making monthly payments told the Miami Herald that she owes $59 million. She will never be able to vote.
Moreover, the records on these financial obligations, particularly for restitution, are considered a mess because Florida has no single entity responsible for tracking Florida’s complicated network of fines, fees, costs and restitution. Many felons thus have no idea whom to pay even if they could.
Community service obligations can also impose financial burdens on low-income ex-offenders. Many work in fast food and similar businesses where they are hired on an hourly basis, working only when needed. The community service obligations will reduce the hours they are available. For them, time really is money.
The fees and cost reimbursements imposed by this legislation are poll taxes in everything but name and are blatantly unconstitutional. In 1966 a 6-3 majority of the Supreme Court ruled that a state cannot impose any fee, tax or other monetary obligation on the right to vote. Writing for the Court, Justice William O. Douglas declared that
A State violates the Equal Protection clause of the 14th amendment whenever it makes the affluence of the voter or payment of any fee an electoral standard. [emphasis added] Voter qualifications have no relation to wealth nor to paying or not paying this or any other tax... or fee [T]he right to vote is too precious, too fundamental to be so burdened or conditioned. Harper v. Virginia State Board of Elections
If the Harper case is still “settled law” - which, given the wavering allegiance to precedent of the current Supreme Court majority, is far from certain – the Florida legislation is unconstitutional because it makes the ability to vote depend on “wealth or affluence or payment of a fee”.
In response to public outrage over the Republicans’ obvious effort to engineer a de facto repeal of the November amendment, the legislature devised a set of palliatives. According to the Republican spokesman for the law, Senator Jeff Brandes (R-St. Petersburg), if a “court” – meaning a circuit court judge – waives the fine or fee entirely, or converts it into community service which is then completed in full, the financial obligation will be considered “completed.” Reducing or ending restitution or other financial obligation to a payee still depends, however, on the payee waiving the obligation.
There are no criteria or standards nor any specific procedures to guide the judge. According to Brandes, each judge is expected to come up with his or her own standards and procedures for administering the statute. This means that, as Brandes acknowledged, “felons could see different results depending on the judge or circuit court that hears their case,” which raises additional constitutional problems.
In Bush v Gore, the Supreme Court refused to allow “standardless manual recounts” of ballots as a result of which “the standards for accepting or rejecting contested ballots might vary not only from county to county, but indeed within a single county from one recount team to another.” The Court condemned such “arbitrary and disparate treatment” of what are similar situations. The re-enfranchisement system created by the Florida statute virtually guarantees the same kind “arbitrary and disparate treatment” from one county and judge to another, and even between judges in the same county, as Brandes acknowledged.
Finally, there is an especially troubling problem arising from the state’s judicial selection system. Florida criminal court judges are elected for six-year terms. Turning the re-enfranchising process over to elected judges enables them to influence and perhaps even shape the composition of the electorate they will face. Ex-felons whom a judge allows to vote are likely to be grateful to that judge.
In fact, there is no way to keep politics out of even nonpartisan elections, especially with respect to race, ethnicity, gender and other political factors that can affect a judge’s decision . These same judges will also shape other elections in their county and just becauise their own election and reelections are officially non-partisan, that does not mean that they have entirely shed any partisan political allegiances they may have had. Judges are rarely political virgins. Nor can one rule out the possibility that some of these judges may have aspirations for higher judicial or non-judicial office which may depend on their politics.
Conclusion
One hundred and fifty years ago Florida was forced to grant black people the vote, but the ex-slaveholders then in power quickly maneuvered to evade that obligation. Their political descendants now in power have just as quickly followed their forebears’ example. Although it has been said that history doesn’t repeat itself, sometimes it does.
Herman Schwartz is Professor of Law at American University Washington College of Law. You can reach him by e-mail at hschwar at wcl.american.edu