A strategy to rescue voting rights in Florida

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The injustice inflicted on the voting rights of the people of Florida by the federal appeals court cannot be allowed to stand.

The U.S. Court of Appeals – with Trump appointees making up five of the six judges in the majority – overturned District Judge Robert Hinkle’s thoughtful 125-page ruling that Florida’s “pay-to-vote” system is unconstitutional.

That the majority included decisive votes of two judges who promised, but later declined, to recuse themselves due to prior involvement in the issue is an additional outrage to be discussed another time.

Discrimination ruled

Judge Hinkle struck down Senate Bill 7066, which legislators disingenuously claimed “faithfully implemented” the will of almost two-thirds of the electorate which, in 2018, approved Amendment 4, ending Florida’s lifetime voting ban for most felony convictions.

The first injustice the appellate court inflicted is that they enshrined discrimination based on wealth into our voting system: offenders who can pay legal financial obligations (fees, fines, costs, restitution) can vote; those unable to pay cannot.

Apparently, the judges failed to appreciate the absurdity of ruling that everyone can vote, but only if they can pay – forgetting Anatole France’s biting observation that the law in “its majestic equality” forbids the rich and poor alike from sleeping under bridges.

Judge Hinkle ruled that “voting can be conditioned on payment of fines and restitution that a person can pay; but the state cannot condition voting on the payment of an amount a person is genuinely unable to pay.”

When all that remains of a sentence is an outstanding financial obligation and the offender lacks the resources to pay, judges typically convert the debt to a civil lien, putting the person on a payment plan and removing them from the criminal court’s jurisdiction.

‘Pay-to-vote’ destruction

The Legislature, however, required that civil liens be paid first to be eligible to vote.

That restriction, added at the insistence of the House sponsor, blocked hundreds of thousands from voting.

Republican legislators (only Republicans supported this restrictive interpretation of Amendment 4) and the governor peddle the spin that the amendment’s framers and the voters who approved it intended that voting rights be restored – but only after payment of financial obligations.

But those who voted to restore voting rights never would have imagined that they would be denying someone the right to vote based on legal financial obligations a person is genuinely unable to afford, and certainly for not completing payment for civil liens.

Especially for those unable to pay, the “pay-to-vote” system amounts to insisting on blood from a stone. If not reversed, the Legislature will have succeeded in re-establishing the lifetime voting ban – but only for poor Floridians.

The appellate court’s second injustice: leaving undisturbed the most cynical element-offenders are required to pay all financial obligations to vote, but the state has no obligation to tell them how much they owe.

Democracy Restoration Act

The Legislature tried to smother Amendment 4, but they could not overturn  it. Approximately three-fourths of those who could be eligible to vote were blocked due to the requirement that all financial obligations be paid first. But several hundred thousand – those with no outstanding financial obligations – are eligible to vote.

And they are able to vote without being subjected to the ugly discriminatory processes of the clemency board – composed of the governor and the cabinet. Regarding restoring voting rights, that board is largely out of business.

An appeal to the U.S. Supreme Court is possible, as is a “clarifying” constitutional amendment. The latter would be a heavy lift but may be necessary.

Just as the people rose to amend their constitution and end the lifetime voting ban, people power also can end the “pay-to-vote” system the Legislature created. A less mean-spirited legislature can amend the law so those with outstanding fees and fines carry a debt that must be paid but is not a barrier to voting – as is the policy in other states.

People power also can move Congress to adopt the Democracy Restoration Act, which would allow those not incarcerated to vote in federal elections, even if they have a record that makes them ineligible to vote in state elections. Obviously, this will depend on who controls Congress – and the presidency.

More than 5 million Floridians approved Amendment 4, dragging our state out of the Jim Crow era. People have the power to rise up again and save the right to vote conferred by Amendment 4.

This injustice cannot stand.

Howard Simon served as executive director of the American Civil Liberties Union of Florida from 1997-2018 and was one of the authors of Amendment 4.

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