A Never Ending Debt to Society: Florida Voters' Attempt to Re-Enfranchise Felons, Derailed

Blog Post | 109 KY. L. J. ONLINE | Oct. 21, 2020

A Never Ending Debt to Society: Florida Voters' Attempt to Re-Enfranchise Felons, Derailed

By: Molly Crain

In May of this year, 85,000 Florida felons who dutifully completed their sentences registered to vote, only to find another barrier to reclaiming their right to participate in American democracy.[1]

Fueled by a 2018 ballot initiative that sparked “Amendment 4” to Florida’s Constitution, 64 percent of Floridians who voted chose to restore former felons’ right to vote; excluding those who had committed murder or sexual offenses.[2]

But despite a citizen supermajority, Amendment 4 was given a legal and constitutional volley that lasted until September 11th, 2020, ending in a less than satisfactory 11th Circuit Court of Appeals decision in the movement to expand voting rights to formerly convicted felons.[3]

The catch? Florida felons may still vie for their right to vote, but only after they “complete all terms of their criminal sentences, including imprisonment, probation, and payment of any fines, fees, costs, and restitution.”[4]

In a 200-page opinion aligned with Governor Ron DeSantis’s view to pay all “fines and fees” before obtaining the right to vote,[5] the 11th Circuit justified their holding with the reasoning that “the felons failed to prove a violation of the Constitution.”[6]

FLORIDA VOTERS, DENIED

Travel back in time to when Amendment 4 first took effect, and where this particular Florida felon re-enfranchise movement met its first adversary in the legislature: Senate Bill 7066.[7]

Under this legislation, the Florida Senate injected Amendment 4 with Frankenstein adaptations, transforming the meaning of the phrase “completion of all terms of sentence”[8] to include remaining criminal justice fees, and invalidating initial desires of the people of Florida in the 2018 ballot initiative.[9]

While an argument exists on behalf of the State to recoup “legal fees”, SB 7066’s passage in a crucial election year reads more like voter suppression.

In 2018, approximately 1.5 million felons were barred from voting in Florida due to a past felony conviction (about 10 percent of the state population).[10] Nestled within this data is the common knowledge that the criminal justice system disproportionately affects African Americans.[11] In Florida, at least 20 percent of the black population was unable to vote in 2018 due to felony convictions.[12] Given that these populations tend have progressive leanings, it is hard to not identify SB 7066 as a political move to protect the leading conservative party.[13]

NOT A POLL TAX, BUT A POLL TAX

Returning to the 11th Circuit, felons impacted by SB 7066 challenged the fee requirement, alleging that the transformation of Amendment 4 by the legislature violated the Equal Protection and Due Process Clauses of the 14th Amendment, and the 24th Amendment (i.e. poll taxes may not be used as prerequisites for voting).[14]

But the federal court held otherwise: SB 7066 is “markedly different” than Harper’s 1966 poll tax, demanding a $1.50 fee before giving citizens voting access.[15] While Harper held that a poll tax is unrelated to voter qualifications and therefore unconstitutional, the 11th Circuit held that the completion of “all terms” of a felon’s criminal sentence—meaning paying remaining related fees—very much are related to voter qualifications.[16]

While an effort may be made to entertain the 11th Circuit’s logic that:

(A)   The phrase “all terms of a criminal sentence” is not synonymous in effect with the barrier imposed by a poll tax, and

(B)   Therefore, appellants have no Constitutional argument under the 24th Amendment, nor under the 14th…

This exercise is an insult to generations of people who have suffered at the hands of systemic racism. To deny that historical precedent of hatred and class indifference do not affect our present social strata is a grave mistake, manifesting in either ignorance or bigotry.

The 11th Circuit contends that such fees “promote full rehabilitation of returning citizens and ensures full satisfaction of the punishment imposed for the crimes by which felons forfeited the right to vote.”[17] But such measures are blatantly discriminatory and kick the meek while they are already down.

As a society that fails to provide full rehabilitation upon inmate release,[18] what incentives do such measures of the 11th Circuit give to former felons seeking to participate in American democracy? Here, the road to freedom appears more like a cruel obstacle course, as Florida’s former inmates are unable to determine their court fees, due to poorly kept state records.[19]

Revealed by a recent CBS News “60 Minutes” special on Amendment 4, correspondent Lesley Stahl sat down with formerly incarcerated Pastor Clifford Tyson, a black man who sued the state of Florida to get his right to vote back “after trying in vain, to figure out how much he owed.”[20]

“It’s crazy, but it’s designed,” Pastor Tyson said. “To me it’s like a poll tax.”[21]

In response to the 11th Circuit decision, the Florida Rights Restoration Coalition have raised millions to help former inmates meet the new fee requirements.[22]  As of today, the DeSantis administration has “urged” election officials to remove from voter rolls “people with felony convictions who still owe court fines and fees.” Thirteen days out from the election, local officials stated it was “impossible to accomplish before Election Day.” [23]

Citations
[1] Patricia Mazzei, Ex-Felons in Florida Must Pay Fines Before Voting, Appeals Court Rules, N.Y. Times (Sept. 11, 2020), https://www.nytimes.com/2020/09/11/us/florida-felon-voting-rights.html.

[2] Tim Mak, Over 1 Million Felons Win Right to Vote With Amendment 4, NPR (Nov. 7, 2018), https://www.npr.org/2018/11/07/665031366/over-a-million-florida-ex-felons-win-right-to-vote-with-amendment-4.

[3] Jones v. Governor of Florida, No. 20-12003, 2020 WL 5493770, *2 (11th Cir. Sept. 11, 2020).

[4] Id.

[5] Mazzei, supra note 1.

[6] Jones, 2020 WL 5493770, *at 2–3.

[7] Jones, 2020 WL 5493770, *at 4.

[8] Florida Division of Elections: Initiatives, Amendments, Revisions Database, (November 06, 2018) https://dos.elections.myflorida.com/initiatives/initdetail.asp?account=64388&seqnum=1.

[9] Jones, 2020 WL 5493770, *at 4.

[10] Mak, supra note 2.

[11] Id.

[12] Id.

[13] Mazzei, supra note 1.

[14] Jones, 2020 WL 5493770, *at 2.

[15] Jones, 2020 WL 5493770, *at 16.

[16] Id.

[17] Id.

[18] If interested in understanding what the first few hours are like for a recently released inmate, see: Katie Galloway & Kelly Duane de la Vega, A Ride Home from Prison, N.Y. Times Op-Doc (July 16, 2015), https://www.nytimes.com/2015/07/16/opinion/a-ride-home-from-prison.html.

[19] CBS News: 60 Minutes, The Legal and Political Fight Over Amendment 4, Granting as Many as 1.4 Million Florida Felons the Right to Vote, (Sept. 27, 2020), https://www.cbsnews.com/news/amendment-4-florida-felony-voting-rights-60-minutes-2020-09-27/.

[20] Id.

[21] Id.

[22] Mazzei, supra note 1.

[23] Beth Reinhard and Lori Rozsa, In Last-Minute Push, DeSantis Administration Urges Florida Election Officials to Remove Felons Who Owe Fines from Voting Rolls, The Washington Post (Oct. 20, 2020), https://www.washingtonpost.com/politics/florida-felon-vote-2020-election/2020/10/20/fd67d51c-11fa-11eb-82af-864652063d61_story.html.