How to prevent over half a million nonviolent ex-felons, most of whom are black, from voting? Let us count the ways.
Democrats felt ecstatic on election night in November 2018, taking back the US House of Representatives with 40 new seats, and putting a check on Trumpism. But the “blue wave” that swept Democrats into power could have been much larger if it hadn’t been for gerrymandering and voter suppression. In states where these things might have made the difference, the impact reverberates to this day — and could also affect the 2020 election.
Supporters of President Donald Trump in Florida insisted the strong economy and the president’s appeal to his base had turned the Sunshine State from Purple to Red, but Democrats pointed to something else: Voter disenfranchisement — in place for more than a century — had targeted a specific group of voters, and almost certainly was the key reason for the Democrats’ narrow losses in the battle for governor and senator.
If that sounds like postelection sour grapes on the losing side, Democrats pointed to
one issue in particular as evidence: voter approval on Election Day of a referendum to let ex-felons vote.
Had that measure been approved two years earlier, the outcome of the 2016 presidential race in Florida, as well as the races for governor and senator in 2018, could very likely have gone the other way.
And wrapped up within the issue of ex-felons voting was a century-old legacy in Florida, of ruthlessly doing whatever is possible to keep a specific group from heading to the polls in large numbers.
Why Didn’t Florida Go Blue?
As one of the nation’s premier battleground states, and certainly the largest, Florida got plenty of national attention in 2016 and 2018. In both years, the results were tantalizingly close, with Trump defeating Hillary Clinton in Florida by just about 100,000 votes out of more than 8 million cast.
But that seemed a comfortable win compared to the two nailbiters last November, both decided by the narrowest margins, including a race for the state house with a Democrat looking to become Florida’s first African American governor.
Tallahassee Mayor Andrew Gillum had looked to make history, but lost to Republican Rep. Ron DeSantis by just 33,000 votes.
Was that the result of a century of voter disenfranchisement of the Sunshine State’s African American voters, who usually vote overwhelmingly Democratic? It certainly looked that way, given that Floridians also voted to add hundreds of thousands of new voters — many of them African American — to the rolls in future years.
But now that decision is being challenged in a stark reminder that even the closest elections truly have significant long-term consequences.
A Debate Over Election Fraud
After the Florida election results came in, there were cries of election fraud — but not, initially, from Democrats. On the morning after the election, DeSantis was leading Gillum by nearly 72,000 votes. In the other key race, Republican Rick Scott, the outgoing governor, was leading incumbent Sen. Bill Nelson (D) by 51,000 votes. It looked like both GOP candidates had clearly won the election by slim margins.
But after more votes filtered in from heavily Democratic counties in South Florida — particularly Broward and Palm Beach — DeSantis’s lead shrank to 34,000 votes and Scott’s lead to just 13,000 votes. That prompted Scott, Sen. Marco Rubio (R-FL), and inevitably, Trump, to claim that election fraud was going on.
In the end, both DeSantis and Scott were declared the winners by razor-thin margins, and the blue wave passed Florida by. Why? What made Florida an exception to the trend in other states?
One answer can be found in the fact that a sizeable percentage of the state’s large population of African American voters — who helped swing the state to Barack Obama in 2008 and 2012 — has been barred from voting, many of them for decades.
A Long, Racist History
While Scott and Rubio quickly dumped their election fraud argument, the question of disenfranchising black voters didn’t fade so quickly. And it wasn’t exactly a new argument, by any means.
The state’s voter disenfranchisement laws date back to the 1860s, when the nation was starting to recover from the devastation of the Civil War. In the same manner as other states in the Deep South, Florida lawmakers responded to Reconstruction laws passed by Congress with their own unique “voting rights” ideas: specifically, laws targeting African Americans.
As Congress voted to require states to allow every man the right to cast a ballot, that left more than a few white Floridians nervous, since blacks at the time made up 45 percent of the state’s population, and some whites had lost their ability to vote because of their ties to the Confederacy.
The Florida legislature responded by approving a lifetime voting ban on anyone convicted of a felony, knowing that the law would likely impact a disproportionate number of black voters. It worked, and that ban would last for the next 150 years.
Throughout those years, Florida remained one of several states with a lengthy waiting period before felons released from prison could have their civil rights restored, including the right to vote, serve on a jury, serve in the military, and obtain certain occupational licenses.
In 2011 modern-day Florida, lawmakers made the law even more restrictive.
Gov. Scott and the state Cabinet, sitting as Florida’s Executive Clemency Board, voted to toughen the process nonviolent felons must go through to have their civil rights restored — even requiring those who had completed their sentence, finished probation, and made full restitution, to undergo a five-year waiting period before beginning their application process for restoration of rights.
It was no accident that, in November 2018, the issue of ex-felons being allowed to vote was also on the ballot. Advocates had been pushing for the change for years, unsuccessfully. But this time, it worked. A solid majority of Floridians, 64.5 percent, approved the measure, opening the door for ex-felons to once again exercise their right to vote (excluding those convicted of murder or sexual crimes).
If that measure had been approved in November 2016, more than a few political observers believe the results of the 2018 election would have been different. Research by the Sentencing Project, which works to restore the rights of ex-felons, indicated that by 2016, more than one in five black Floridians were unable to vote because of that ban — more than enough to have altered the election results in the 2018 race for governor and senator.
But the euphoria felt by the ballot measure’s advocates didn’t last long. The victory lap came to a halt when the Florida legislature, controlled by Republicans, voted to place restrictions on those voting rights — a measure that opponents decried as a “poll tax”, similar to what was placed on African American voters in the Deep South during the Jim Crow era.
The Debate Over Felon Voting Rights
In the granddaddy of all tight races, the 2000 presidential election, when it all came down to Florida and Republican George W. Bush was clinging to a 537-vote lead over Democrat Al Gore, was voter disenfranchisement an issue then as well?
Florida’s secretary of state at the time, Katherine Harris, a Republican who supported Bush, had removed 58,000 voters — allegedly for being “ex-felons” — from the voting list. Many of them were African Americans and likely Gore voters. A study later concluded that 12,000 names on the list belonged to individuals who were not ex-felons.
Then there was Florida’s ongoing method of handling absentee and provisional ballots, many of which were tossed out because of “signature mismatches.” Not surprisingly, the state had a law requiring each voter’s signature to exactly match what the state had on file. If that sounds highly subjective, note that US District Chief Judge Mark Walker reached the same conclusion when the law got challenged. He declared,
There is no doubt that election officials must make certain calls, under the rules, that deserve review. And there is no doubt some of those calls may hinge on highly subjective factors. The precise issue in this case is whether Florida’s law that allows county election officials to reject vote-by-mail and provisional ballots for mismatched signatures — with no standards, an illusory process to cure, and no process to challenge the rejection — passes constitutional muster. The answer is simple. It does not.
So just how many new Floridians could be added to the voter rolls because of Amendment 4? The Sentencing Project noted that it would benefit more than a million people — larger than the total population of states like Alaska and Wyoming.
The organization pointed out that about 1.5 million Floridians have completed felony sentences but can’t vote, which amounts to nearly 10 percent of the voting-age population in Florida.
More importantly, this measure is expected to have a major impact on the voting rights of African Americans, who are disproportionately arrested and incarcerated.
Estimates are that more than 418,000 black residents, or 17.9 percent of black voters in Florida, would now be able to vote, the Sentencing Project noted.
And it soon became clear that Florida Republicans were well aware of the political implications of that measure.
The GOP Response to Felon Voting Rights
The referendum may have been approved by a 2–1 majority, but Republicans still in control of Florida state government had other ideas. They approved a bill to restore voting rights only under certain conditions — and not easy ones. Voting rights would be allowed only for individuals who have completed all terms of their sentence, including fully paying restitution, fines, or fees ordered by the court. In other words, only after all financial obligations have been met can ex-felons once again enjoy the right to vote.
Democrats pounced, saying it would disenfranchise the very felons this ballot measure was intended to help. Gillum even sent out a tweet saying,
Amendment 4 — restoring ex-felon voting rights — got a million more votes than me. And a million more votes than @GovRonDeSantis. The Governor would be well advised to veto this poll tax. Voters spoke loud and clear — we believe in second chances.
Republicans scoffed at the notion that their actions were politically motivated. State Rep. James Grant (R-Tampa), chairman of the House Criminal Justice Committee, said in an interview with CBS News that it was the job of lawmakers to define the terms of those voting rights, and to not leave it vague and unclear.
“If it’s not defined, we leave it to the judge, the government, to discriminate on a case-by-case basis and I think that’s a recipe for rampant discrimination,” he said.
Then again, let’s do the math. DeSantis won by 30,000 votes. Amendment 4 could add an additional 400,000 African American voters to the rolls. Nobody needs a calculator for that one.
Supporters of the Measure React Swiftly
Critics of the GOP bill haven’t been silent by any means. Patricia Brigham, president of the League of Women Voters of Florida, pointed to a continued pattern of “old Jim Crow practices” by GOP lawmakers.
“Throughout the years, the Florida Legislature has earned a reputation of gutting citizen initiatives and wasting taxpayer money defending their legislation in court,” she told WhoWhatWhy.
We are witnessing the legislature continue that reputation of citizen obstruction today, as the Senate has passed along party lines a law that prohibits a citizen with a felony conviction who has completed their incarceration and probation — a returning citizen — from voting if they have not paid all court costs, fees, or restitution — even if those financial obligations have been converted into a civil judgment or lien by a judge, as is their authority to do so under law.
Brigham also said the bill will force the state’s 67 supervisors of elections to determine if ex-felons are now qualified to vote, requiring each supervisor to conduct criminal background searches into 67 different state courthouses to determine voting eligibility.
“This will cause returning citizen voter registration to grind to a complete halt,” she said.
The bill, she added, will also limit voting to “those who have large bank accounts.”
ICYMI: The Amendment 4 legislation approved by the legislature last month will disproportionately impact poor people, regardless of background, and historically-disenfranchised groups like people of color. https://t.co/Oz1aN5IDVd
— ACLU of Florida (@ACLUFL) June 7, 2019
The American Civil Liberties Union also denounced the bill. Kirk Bailey, political director for the ACLU of Florida, noted “Politicians this session disregarded the will of over 5 million Florida voters who supported Amendment 4 when they passed legislation that restricts the right to vote based on who can afford to pay.”
Eliza Sweren-Becker, voting rights counsel in the Democracy Program at the Brennan Center for Justice, agreed. “Floridians overwhelmingly supported the automatic restoration of voting rights and did not intend to condition access to the ballot on a person’s ability to pay.”
But the political battle hasn’t been limited just to the issue of ex-felon voting rights. Another emerging controversy is whether Florida needs to make it harder to do exactly what the advocates of Amendment 4 did: change the state’s Constitution through referendums.
Making It Harder to Change the Laws
The measure to weaken Amendment 4 isn’t the only controversial electoral bill coming out of Tallahassee. Another one makes it harder to put citizens’ initiatives on the ballot in the first place. After all, advocates of Amendment 4 had tried to get it passed in the legislature initially and, when that failed, they resorted to the ballot instead.
So lawmakers approved a bill to require those who gather petition signatures to submit 76,632 valid signatures in order to be reviewed by the Florida Supreme Court.
State Sen. David Simmons (R) told the Orlando Weekly that lawmakers felt the ballot initiative process had been hijacked by out-of-state special interest groups who were not working for the benefit of the average Florida resident.
The measure would make it illegal to pay petition gatherers based on the number of petitions they collect, and requires gatherers to sign sworn statements that they will follow state laws and rules. It would also require all petitions to be turned into county supervisors of elections no more than 30 days after being signed by voters, with a $50 penalty for each late submission.
Critics of this measure have also been vocal.
Also within this bill: a provision requiring Floridians who update their address on Election Day to take a provisional ballot, which has been criticized because the majority of provisional ballots don’t get counted.
Scott McCoy, senior policy counsel for the SPLC Action Fund, called the 2019 legislative session
A dark day for Florida’s democracy. Whether it was gross misinterpretation of Amendment 4 through a so-called “implementing” bill or restricting the citizen initiative process for constitutional amendments, the majority in the Florida Legislature thumbed its nose at the clearly expressed will of the people and their prerogative to amend the Constitution without relying on unresponsive and out-of-touch Tallahassee politicians, who care more about retaining power and doing the bidding of special interests that fund their campaigns.
Deborah Foote, government affairs and political director at Sierra Club Florida, added “Florida’s voters have consistently prioritized protecting the environment and any effort to restrict access to the ballot or voting is an affront to democracy.”
The issue resonates far beyond Florida and the Deep South. On May 5, during a meeting with the NAACP in Detroit, Democratic presidential candidate Sen. Kamala Harris (D-CA) said she would support changing election laws to “fight back against those Republicans who suppress our constitutional right to vote.”
In particular, she cited the close races for governor in Florida and in Georgia, where Democrat Stacey Abrams narrowly lost in November 2018.
“Let’s say this loud and clear, without voter suppression, Stacey Abrams would be the governor of Georgia, Andrew Gillum is the governor of Florida,” Harris said.
What Happens Next?
DeSantis has now signed both the Amendment 4 revision and the citizens’ initiative measure into law, which is considered a major victory for Republicans both at the state and national level. Florida is one of the nation’s top battleground states, and the largest of the purple states, and the GOP is counting on Florida to once again vote for Trump in next year’s election.
That’s not a given. A poll by the Florida Atlantic University Business and Economic Polling Initiative, taken May 16–19, found that Trump and former Vice President Joe Biden are tied in the Sunshine State at 50 percent each. The addition of potentially hundreds of thousands of new African American voters to Florida’s voter registration list could alter that math quickly.
For opponents of both bills, it may be time for them to reenforce, and quite loudly, the message that elections truly do matter, and that politicians — even the ones who got elected by the slimmest of margins imaginable — wield enormous power politically during their terms in office.
That message may be what’s needed to motivate those Florida Democrats or Democratic-leaning voters who sat out the November 2018 election only to regret it later.
Related front page panorama photo credit: Adapted by WhoWhatWhy from Rodrigo Kore / Flickr (CC BY-NC 2.0).