The vestiges of enshrined racism are evident in the appalling ignorance of the court opinion’s first sentence: “Florida has long followed the common practice of excluding those who commit serious crimes from voting.”
With that dog whistle, Chief Judge William Pryor of the 11th Circuit Court of Appeals proceeded to again justify as constitutional the racially biased practice of disenfranchising hundreds of thousands of Florida felons who have failed to pay what are, in effect, indeterminate financial penalties stemming from their convictions. This is an unfair and crushing blow to rehabilitated felons, all of them U.S. citizens and most of them minorities, who want to participate in the democratic process.
To be clear, the “common practice” of felon disenfranchisement laws in the South is rooted in Jim Crow era constitutional and legislative initiatives designed simply to deny Blacks the right to vote. In fact, one of the proponents of Florida’s 1868 constitution, which enshrined felon disenfranchisement, boasted that it prevented Florida from becoming “n____rized.”
The 'pay to vote' system
Florida had already adopted “Black Codes” that “felonized” convictions of former slaves for minor crimes and, presto: Blacks were commonly denied the right to vote in Florida. Similarly, Mississippi’s felon disenfranchisement statute was originally crafted to deny the vote to those convicted of so-called “black crimes,” while preserving the franchise for those convicted of crimes thought to be committed by whites. And Virginia’s felon disenfranchisement provision was admittedly designed to “eliminate the darkie as a political factor in this state” according to backer Delegate Carter Glass in 1901. No wonder felon disenfranchisement is no longer common in America.
In an attempt to rectify this discriminatory “common practice,” Amendment 4 to Florida’s Constitution appeared on the statewide ballot after supporters collected the required 766,220 signatures. The amendment sought to automatically restore the right to vote to more than 1.5 million Florida felons who had served their time — so long as they hadn’t been convicted of murder or a sex offense. In November of 2018, non-felon Florida voters overwhelmingly approved the amendment with almost 65% of the vote and it became law.
Newly elected Gov. Ron DeSantis and the Republican controlled Florida Senate believed they could stymie this effort and continue Florida’s voter suppression. In mid-2019 DeSantis signed the Senate’s bill requiring the soon-to-become-enfranchised felons to pay all fines and fees due from their sentence before their voting rights were restored — a legislative bait-and-switch worthy of a bygone era. Because Florida’s court system was literally incapable of actually tabulating those fees and fines, most felons could not feasibly satisfy their financial obligations. The “common practice” would continue.
The federal courts initially provided some relief. In May federal judge Robert Hinkle called the state process used to determine a felon’s financial obligations “an administrative train wreck.” He blocked enforcement of that part of the law and permitted felons unable to pay their fines to vote. Meanwhile, as the constitutionality of the law wound its way through the federal courts, groups like the Florida Rights Restoration Coalition and the Hillsborough County State Attorney created “rocket dockets” in a last-ditch attempt to quickly determine and adjudicate each felon’s financial compliance.
The right to vote is once again denied
Despite these efforts, late last week Chief Judge Pryor, joined by five Trump appointees, affirmed as constitutional the “common practice” of denying rehabilitated felons the right to vote and set aside Judge Hinkle’s injunction.
With a federal election less than 50 days away, and despite undisputed evidence that the state bureaucracy was incapable of fairly adjudicating the financial penalties owed by felons in a timely way, they upheld one of Jim Crow’s last vestiges of denial of franchise. The right to cast a ballot is again “lawfully” denied.
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In a stinging dissent, Judge Adalberto Jordan, a Cuban American, joined by the court’s only Black judge, Charles Wilson, and two Obama appointees, wistfully pined for the judicial heroism rooted in the Court’s legendary predecessors — judges who had courageously altered the civil rights landscape in America in the late 1950s and early 1960s. Judge Jordan warned prophetically that the majority opinion, effectively denying the right to vote to a broad swath of Floridians, would not be “viewed kindly by history.”
In his famed 1957 “Give Us the Ballot” speech, Martin Luther King Jr. promised that by ensuring the right to vote for minorities, we would “fill our legislative halls with men of good will.” Having witnessed the privations of these entrenched “common practices,” he plainly understood that only courageous leadership could guarantee true equality. Many Floridians, it seems, will have to continue to wait for that promise to be fulfilled.
Paul E. Pelletier served as a federal prosecutor for almost 27 years, leading financial crime prosecutions at Miami’s United States Attorney’s Office and the Department of Justice's Fraud Section. He presently serves as a legal consultant and adjunct professor at The George Washington University Law School. Follow him on Twitter: @PePelletier
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This article originally appeared on USA TODAY: Racist Jim Crow era lives on in Florida decision denying vote to felons