Florida Not Yet Land of Lincoln for Former Felon Voting Rights

Florida Governor Ron DeSantis did not put on a Civil War-era stovepipe top hat when attorneys recently asked a federal judge to dismiss a lawsuit challenging a 2019 law he signed.  The law, SB 7066, limits the voting rights of returning citizens.

DeSantis signed the bill months after almost 65% of voters approved a constitutional amendment that automatically restored voting rights upon completion of a sentence.  The amendment undid a state constitutional requirement in place since 1868.  The earlier amendment, written in the shadow of the Civil War, barred former felons from voting unless the state restored their franchise individually.

DeSantis, no modern-day Abraham Lincoln, signed the 2019 law, which was passed in a party-line vote by the Republican-controlled state Legislature.  It requires returning citizens to pay all fees, fines and restitution ordered by a judge before they can register to vote.  Officials can’t say exactly how much money falls under the provision.  However, experts estimate it could reach $1 billion or more.  Many of an estimated 1.4 million returning citizens fall under the spell of the new law.

SB 7066 critics ask if the financial requirement to vote is a spiritual, if not legal heirloom of Reconstruction-era laws that demanded citizens pay a “poll tax” before they could vote.  The 24th Amendment to the U.S. Constitution outlawed poll taxes in a powerful blow to Jim Crow era politics in this country.

A few federal lawsuits challenging SB 7066 have been joined under Jones et al v. DeSantis et al.

In an ironic legal twist, lawyers representing DeSantis and Secretary of State Laurel Lee argued the 2019 law is more lenient than the terms of the recent state constitutional amendment.

“The constitutional text is arguably more restrictive because it makes no provision for sentencing documents, modification of sentences, or a favorable construction for re-enfranchisement,” the 21-page motion informs the federal judge hearing the case.

Contending my law is more liberal than your constitutional amendment is a far cry from the day Lincoln, the first Republican president, began his second term in the midst of the Civil War.

In 1865, he said, “With malice toward none; with charity for all; with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in; to bind up the nation’s wounds.”

Lincoln sought charity, or goodwill, for those who sought to destroy the Union and kill their fellow Americans.  DeSantis seeks cash before returning citizens not convicted of murder can register to vote.

Suggesting the 2019 law is more lenient than the constitutional amendment also means the Legislature and governor used discretion in crafting the law.  They should use more of that apparent discretion when the Legislature meets again in January.

For context, the Florida Association of Counties reports, “Two states—Maine and Vermont—do not rescind the right to vote for convicted felons, allowing them to vote while incarcerated; 14 states and Washington, D.C., restore voting rights upon completion of a prison sentence; four states restore voting rights upon completion of prison and parole time; 19 states restore the right to vote after prison time, parole, and probation are completed.”

Florida lawmakers acted in May after voters overwhelmingly approved a constitutional amendment on Nov. 6, 2018.  Here is the wording voters saw when they supported the amendment:  “This amendment restores the voting rights of Floridians with felony convictions after they complete all terms of their sentence including parole or probation. The amendment would not apply to those convicted of murder or sexual offenses, who would continue to be permanently barred from voting unless the Governor and Cabinet vote to restore their voting rights on a case by case basis.”

Amendment 4 supporters say Tallahassee politicians should not define its meaning.  They fear the 2019 law discriminates against poor people and people of color.

Critics of Amendment 4 contend all terms of a sentence include fees, fines and restitution.  They note an attorney for Amendment 4 supporters told Florida Supreme Court justices that financial obligations were part of the deal they wanted voters to approve.  In Florida, the state court reviews proposed constitutional language before it appears on the ballot.

Reacting to SB 7066, some prosecutors are modeling their best Lincoln pose.  They want the 2019 law to reflect goodwill, not cash register justice.

According to a July 30 article in The Washington Post, “court officials in cities such as Miami and Tampa are modifying sentences and making plans to allow some debts to be converted to community service.”

In Miami, State Attorney Katherine Fernandez Rundle backs a rocket docket that “establishes a fast track by which judges can set aside some financial penalties that would otherwise prohibit an ex-felon from participating in elections,” a July 29 Miami Herald article reports.  The paper adds, “An estimated 150,000 former felons in Miami-Dade will be able to apply.”

Hillsborough State Attorney Andrew Warren is also working on a plan to streamline the voter registration process for returning citizens convicted in the Tampa area.  He wants to have a “process in place before the end of the year,” Warren tells Democracy Chronicles.

In Broward County, the chief judge “issued an administrative order after he arranged and held meetings with …the court clerk’s office, public defender’s office and the state attorney’s office,” says Paula McMahon, spokeswoman for State Attorney Mike Satz.

On Aug. 23, Broward Chief Judge Jack Tuter issued an administrative order to allow returning citizens to file motions.  “The order is important because there is only a certain time after a case is final where you have ‘jurisdiction’ or power to change it,” says Teresa Williams, a local criminal defense attorney who wants to become Broward State Attorney next year.  She adds, this order  “opens up the ‘jurisdiction’ issue. ”

Williams also calls linking criminal justice debt to voting rights a “legal fiction” because the government does not function as a debt collection service.  Only former felons on probation make a payment every month when meeting a probation offer, she says.  However, “If you do not get probation, no one provides you with a vehicle to make those payments.  No one comes to the state prison and says please make a payment…No one asks you for it when you get out.”

Unfortunately, there is a limit to the prosecutorial goodwill on display.  It is happening jurisdiction by jurisdiction.  That means returning citizens are subject to the will and whim of elected prosecutors who have a variety of political values and motivations.  Equal protection under the law is a myth in such circumstances.

As Florida wrestles with the legacy of a Civil War-era mandate, leaders at the Florida Rights and Restoration Coalition think they have a good idea.  The organization led the charge for passage of Amendment 4.  Now the group is raising money to pay off criminal justice debt of returning citizens.  You can contribute by going to their website.

I can almost hear Desmond Meade, the executive director of the Coalition, saying, “With malice toward none; with charity for all.  Let my people vote.”