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Ahead of Florida primary, 1.4 million former felons unsure whether they can vote in 2020

Alan Gomez
USA TODAY

MIAMI — It's been 16 months since Floridians voted to restore voting rights for roughly 1.4 million felons who had been permanently banned from casting a ballot by a law passed during the Jim Crow era, yet the vast majority of those felons will not be able to vote in Florida's primary Tuesday and may not be able to vote come November, either.

The reason? Florida's Republican-controlled Legislature and its Republican governor passed a law last year that, they said, was designed to implement the voters' will by requiring that all prison terms — and court costs — be paid before felons can vote. Civil rights and advocacy groups sued the state arguing that requiring court costs be paid in full was unconstitutional, tantamount to a poll tax.

That disagreement has thrown the voter registration process into a prolonged legal battle that may not be resolved until it's decided by the U.S. Supreme Court. The clash has led to accusations of racism against GOP legislators in Tallahassee, the unusual situation of state attorneys trying to help register people they had previously locked away, and county supervisors of election stuck in the middle with little clarity on who can and can't vote.

The U.S. Court of Appeals for the 11th Circuit gave felons a legal victory last month, ruling that the state cannot bar felons from registering to vote based solely on their failure to pay all of their court costs and fees.

But the ongoing legal battle has left many confused and resulted in a small number of felons successfully registering to vote. That means hundreds of thousands of potential voters are unable to participate in an election that could swing the 2020 presidential race in a state notorious for its slim voting margins. 

"We're thinking what everybody else is thinking: What is going on in Florida?" said Desmond Meade, a former homeless man who founded the Florida Rights Restoration Coalition that led the charge to regain voting right for felons. 

Even if all 1.4 million eventually return to the voter rolls, political experts are unsure which party will benefit the most. About a third of those felons are African American, and it's unclear how they or the other 66% of felons lean politically.

"There’s a tendency to make it seem like they’re all minorities, they’re all Democrats," said Susan MacManus, a professor emeritus at the University of South Florida who has studied Florida's politics for decades. "But be careful, there's a lot of diversity in that population."

The debate over felons' voting rights has a long and ugly history that dates back to the years following the Civil War, when some states tried to keep black citizens off voter rolls after the abolition of slavery. One of the ways they did so was barring people convicted of felonies from ever voting again.

Over the decades, most states limited or eliminated those laws, freeing up more felons to cast their votes. In many states, felons automatically regain their voting rights the moment they complete their prison sentence. And in some states like Maine and Vermont, felons can even vote from prison. 

But Florida's law banning felons from the ballot box endured, making the Sunshine State the nation's leader in voter disenfranchisement. As of 2016, there were 3.1 million people across the nation who had completed their prison sentences but remained ineligible to vote. Nearly half of those — 48 percent — were in Florida, according to a report from The Sentencing Project, a Washington, D.C.,-based group that advocates for criminal justice reform.

In 2018, it appeared that would come to an end when 65% of Florida voters approved Amendment 4 to the state's constitution. The bill allowed all felons, except those convicted of murder or sexual offenses, to regain their voting rights.

But the ensuing legal and moral debate over what voters intended when they approved that amendment came down to one phrase in the ballot question. Voters were asked if the state should restore voting rights for felons "after they complete all terms of their sentence including parole or probation."

To many, the message seemed clear: do your time and you can regain your right to vote.

But Republican legislators argued that "all terms of their sentence" also included all monetary portions of their sentence, such as restitution to victims, fines, courts costs and fees. Florida does not have an income tax, so courts are largely funded by court costs and fees paid by defendants that can cost $500 per case at the minimum.

Former felon Desmond Meade and president of the Florida Rights Restoration Coalition, right, celebrates with his wife Sheena as family members covered them with confetti after he registered to vote at the Supervisor of Elections office on Jan. 8, 2019, in Orlando, Florida.

GOP members of the state Legislature, who control both chambers by sizable margins, set out to craft an "implementation bill" that requires felons to pay off every nickel they owe before they can regain their right to vote.

Democrats agreed that restitution should be paid to victims, but complained that requiring courts costs and fees be paid in full was a Republican attempt to get around the will of the voters. They, along with the ACLU, the NAACP and other groups, argued that the payment requirement represented a "modern-day poll tax" that was forbidden by the Civil Rights Act of 1965 and deemed unconstitutional by the U.S. Supreme Court the following year.

Republicans denied those accusations, saying they were simply trying to formalize an undefined process called for in Amendment 4. Republican Gov. Ron DeSantis' office did not respond to a request for comment. But the bill's sponsor, GOP state Rep. James Grant of Tampa, said it's been exhausting and insulting to hear people repeatedly call him a racist.

He said just showing his family's Christmas card, which includes children from "all over the world" adopted by his relatives, would be all the proof people need to know he's not a racist. "You either let liars and frauds affect you or you don't," he said. 

Instead, Grant said he sponsored the bill because the amendment approved by voters clearly stated that all terms of a sentence must be completed, and court costs and fees are part of any sentence, written into sentencing documents and approved by judges.

His bill passed in 2019 along a party-line vote that required all payment of all financial obligations before felons could register to vote.

"I don't see a scenario where we're wrong," Grant said.

President Donald Trump stands behind Ron DeSantis, Candidate for Governor of Florida, as he speaks at a rally, Saturday, Nov. 3, 2018, in Pensacola, Florida.

DeSantis signed the bill into law and within hours, civil rights groups filed a federal lawsuit challenging the law.

In October, felons got their first legal victory when U.S. District Judge Robert Hinkle called the bill "an administrative nightmare," issued a temporary injunction and ordered the state to fix it. Republican leaders appealed that ruling and asked for an advisory opinion from the state Supreme Court, which sided with the GOP leadership in Tallahassee.

But in February, a 3-judge panel of the U.S. Court of Appeals for the 11th Circuit upheld Hinkle's injunction, finding that punishing felons who cannot afford to pay off their court costs is an unconstitutional punishment.

"These plaintiffs are punished more harshly than those who committed precisely the same crime — by having their right to vote taken from them likely for their entire lives," the justices wrote. "And this punishment is linked not to their culpability, but rather to the exogenous fact of their wealth."

The state has vowed to appeal that ruling, and a full trial is scheduled for April in Tallahassee. In the meantime, voters and election supervisors are struggling to figure out what comes next.

"We're not getting any guidance from the secretary of state," Stephen Todd, a lawyer representing the Hillsborough County supervisor of elections, said during a court hearing last month. "We have an election in a month. We're trying to register people."

In the midst of that confusion, felons have gotten support from an unlikely source — state prosecutors. In Florida's largest counties, state attorneys have been working to remove court costs and fees from the sentences they impose. In Palm Beach County, State Attorney Dave Aronberg has already changed his sentencing documents so future court costs are not tied to sentences, and is helping felons remove existing courts fees from sentences already imposed.

"The state law was more about voter suppression than about fulfilling the intent of the electorate," said Aronberg, who previously served as a Democrat senator in the state Legislature. "The amendment did not need enacting. It was self-enacting. The Legislature went out of their way to throw a huge obstacle."

In Florida's most populous county — Miami-Dade — State Attorney Katherine Fernandez Rundle convened a grand jury to study the effects of Amendment 4. It found that felons who regain their right to vote commit fewer crimes and become more active members of their communities. That's why her office has been allowing felons to modify their sentences to remove, or restructure, their courts costs and fees so they can register.

"Restoring eligible felons' right to vote is not just permitted, but right, just and smart," she said.

But given the current level of confusion, only about 300 felons have regained their voting rights in Miami-Dade County, according to the county supervisor of elections office. It's impossible to know how many others have registered across Florida because the state has no centralized database of felons and no easy way of knowing who owes courts costs.

Meade, the head of the Florida Rights Restoration Coalition, estimates that up to 50,000 people have tried to register so far across the state and he hopes to get 100,000 signed up by Election Day. But his coalition doesn't know how many of those attempts have been successful and what impact they'll have come November.

For now, Meade said he will continue fighting. His organization is urging felons to approach the court to try and modify their sentences to remove their court costs to free them up to register to vote. For those who can't, the organization is raising money — over $500,000 so far — to pay off their court costs so they can register to vote.

"We celebrate every day because every day there's a returning citizen registering to vote," he said. "That means we're spreading our democracy one vote at a time."

And after successfully registering himself last year, Meade is looking forward to Nov. 3 when he'll finally cast his first vote.

"It's going down," he said with a chuckle. "It's happening."