How politics gutted ex-felon voting rights in Florida

Jeff Gruver voted for the first time ever in March, casting an enthusiastic ballot for Bernie Sanders in Florida’s presidential primary.

He was planning to vote for Joe Biden in November until he found out Friday he would not be voting at all. A federal appeals court ruled that Floridians with felony criminal records like himself would be ineligible to vote unless they paid back all their outstanding court fines and fees — in his case, at least $801.

He does not have the money. And he does not want to take any risk that his vote could be deemed illegal. Like more than 1 million other former felons, he has found that even an overwhelming 2018 vote in favour of a state referendum to restore voting rights to most people who had served their sentences does not necessarily mean that they will ever get to vote.

Instead, how a landmark vote to restore former felons’ rights in Florida ended up gutted last week is a cautionary tale about the messy process of citizen-led ballot initiatives and how a dominant political party can exert its power long after voters have spoken on Election Day.

“The political climate in Florida — it just kind of feels rigged by one group in power over the other,” said Gruver, 34, who runs a homeless shelter in Gainesville and more than a decade ago did a total of about 10 months in jail for cocaine possession and violating the terms of his probation.

The roller coaster for people like Gruver has played out like this: Nearly 65% of Florida voters approved amending the state constitution to restore the franchise of former felons, excluding those convicted of murder or sexual offences, but the state’s Republican lawmakers and governor severely restricted the effort. A 2019 law requiring the payment of court fines and fees was found unconstitutional in May, but the appeals court overturned that ruling less than two months before the presidential election. Five of the six votes to undermine the restoration of voting rights came from judges appointed to the court by President Donald Trump.

When voters passed the referendum, known as Amendment 4, civil rights groups celebrated what was billed as a potentially game-changing expansion of the electorate in the nation’s biggest battleground state. White people like Gruver represent a majority of the state’s former felons. But Black residents are disproportionately represented: More than 1 in 5 potential Black voters in Florida were barred from casting a ballot.

Nearly two years later, most former felons remain shut out of the ballot box over their inability to pay legal financial obligations. Of the about 1 million former felons in Florida — a conservative estimate — at least three-quarters owe court debt. Between 70% and 80% are indigent and unable to pay.

And even those who can pay face a Catch-22: Because there is no central database of court fines and fees, it is difficult or impossible to establish how much anyone owes. As of May, the state had failed to process any of the more than 85,000 voting registration applications submitted by former felons since Amendment 4 passed in late 2018.

“It has been a very long slog to change public opinion on the re-enfranchisement of felons, and it took millions of dollars and a lot of effort to get that initiative passed,” said Nathaniel Persily, a Stanford University law professor. “The idea that felons would then have to pay money in order to vote after being enfranchised is depressing.”

In the past year, the governors of Kentucky and Iowa — the only remaining states that disenfranchised all former felons — signed executive orders restoring voting rights to those who have completed their sentences, including parole and probation. Unlike Florida, neither required payment of fines, court fees or restitution.

Florida is hardly the only state where legislators have taken aim at a measure that voters had approved.

Missouri’s Republican-controlled Legislature has placed a constitutional amendment on the November ballot that bills itself as a package of clean-government reforms but actually undoes a 2018 amendment that took redistricting out of the Legislature’s control and gave it to a nonpartisan state demographer. Utahans narrowly voted in 2018 to make political map-drawing a nonpartisan affair, only to see that state’s Republican Legislature water down the measure to allow politicians to retain effective control of the process.

And a host of legislatures nettled by voter-approved initiatives in 2018 have passed laws making it substantially harder for citizens to get initiatives on the ballot.

Florida’s Amendment 4 said voting rights would be automatically restored for former felons “after they complete all terms of their sentence including parole or probation.” Once the measure took effect in January 2019, felons started registering.

Few expected that anywhere close to 1 million newly eligible voters would immediately begin casting ballots. But proponents of Amendment 4 thought the measure was self-executing, meaning that no additional legislation was required. Gov. Ron DeSantis, a Republican, and the Legislature, which Republicans have controlled for more than two decades, had other ideas.

As the end of the 2019 legislative session neared, legislators tacked on the requirement for former felons to repay outstanding court fines and fees to an unrelated elections bill. Republicans argued the restrictions were reasonable because proponents of Amendment 4 said in court testimony and campaign websites before the 2018 election that court fines and fees would be repaid, though none of those costs were cited in the ballot text.

“The way the Legislature dealt with this impacts everyone equally,” said state Sen. Jeff Brandes, a Republican of St. Petersburg. “You have to complete all terms of your sentence, period, and we don’t look at Republicans or independents or libertarians separately.”

But Franita Tolson, a University of Southern California law professor and expert on elections law, said the financial costs to cast a ballot and the fact that Florida has no mechanism in place for former felons to verify if they have outstanding court debt harks back to poll taxes imposed after the Civil War.

“That was the whole point of poll taxes in the post-Reconstruction era: It was about keeping people away from the polls, not about paying the tax,” she said.

Indeed, in May, Judge Robert Hinkle of the US District Court in Tallahassee ruled that the Legislature’s provisions amounted to an unconstitutional poll tax.

The DeSantis administration, relying on the shifting politics of the courts, appealed. It requested that the 11th Circuit consider the appeal en banc — that is, that it be heard by all of the court’s judges instead of the usual three-judge panel — because of the case’s exceptional importance.

The appeals court granted the state’s request, which proved hugely consequential: A previous three-judge panel from the 11th Circuit had unanimously sided with the former felons in February after they requested a temporary injunction to keep the Florida law from taking effect. But two of those judges have senior status, which excluded them from the en banc hearing. So the former felons lost two friendly judges and instead faced 10 jurists, five appointed by Trump, who were not bound by the previous panel’s earlier decision.

Instead of granting a permanent injunction, as Hinkle had at trial, the majority of the en banc appeals judges — including all five Trump nominees — ruled by a 6-4 margin that the lower court judge had misapplied the law.

Requiring former felons to pay back every court cost “promotes full rehabilitation of returning citizens and ensures full satisfaction of the punishment imposed for the crimes by which felons forfeited the right to vote,” Chief Judge William Pryor wrote for the majority.

Julie Ebenstein, a senior staff attorney for the American Civil Liberties Union’s Voting Rights Project and one of the plaintiffs’ lawyers in the case, said justice should have nothing to do with the ability to pay fines and fees.

“The idea that they are somehow insufficiently rehabilitated because they aren’t wealthy; that just struck me as absurd,” she said.

The appeals court also ruled that Florida did not have to create a uniform system for former felons to know if they owe any court debt, a conclusion that struck Justin Levitt, a voting law expert at Loyola Law School in Los Angeles and former deputy assistant attorney general for civil rights in the Obama administration, as wrongheaded.

“The notion that Florida has a right to disenfranchise you because all terms and conditions must be met, but we’re not telling you which terms are left to meet?” he said. “That’s Lucy pulling the football away from Charlie Brown. And there’s no law in Lucy pulling the football away. That’s just cruelty.”

The state’s elections division and 67 clerks of county courts have struggled since the referendum passed to put a patchwork of systems in place to try to screen former felons for their eligibility. Florida will issue advisory opinions to individuals who ask about their cases, but only 12 have been posted to the Division of Elections website.

The uncertainty has led to speculation for months that perhaps a wealthy philanthropist could step in and pay off former felons’ financial obligations en masse. The clock has almost run out for the 2020 election; the voter registration deadline is Oct. 5. But billionaire Michael Bloomberg, who ran in this year’s Democratic presidential primary, has vowed to spend $100 million in Florida to help Biden win the state. Could Bloomberg be persuaded to assist former felons?

“We are looking at a variety of different ways to spend our money,” said Howard Wolfson, an executive with Bloomberg Philanthropies and an adviser to Bloomberg. “We are aware of this issue.”