Opponents of the Florida law requiring felons to repay fines, fees and restitution have argued from the start that it’s a poll tax, something banned by the U.S. Constitution. That argument has its roots in the 24th amendment which stopped governments from charging people to vote. In Florida, the people most affected by the law are Black and brown. But voter disenfranchisement wasn’t always considered a racist policy.
“There were laws that disenfranchised felons from the earliest constitutional convention of Florida," said Morgan Kousser, a Professor of History and Social Science at Caltech.
How Voter Disenfranchisement Began
Before the Civil War voters, mostly landholding white men, could lose their right to vote if they committed mostly voting-related crimes. When it became clear that Black men were going to be allowed to vote via the 14th amendment, Kousser notes the list of crimes began to grow.
"One of the things that happen in 1884 was that crimes it was thought Blacks were more likely to be convicted of, were added,” he said.
In 1889, the Florida legislature began making voters pay $2 to cast a ballot, limiting those who couldn’t afford it. Later, came a form of a literacy test. These tactics, and others, had the exact result they were made for.
“As a consequence, blacks stopped voting in very large numbers after that point."
Kousser says the disenfranchisement initially created as a punishment for violent crime and election fraud had changed to a disenfranchisement targeted at one race.
"The effect of that can’t be separated from the effect of the other things. If you have all those things at the same time, it leads to greater disenfranchisement."
Florida repealed the poll tax in 1937. But Black people still had little power when it came to electing anyone. It would take until 1968 for another Black person to be elected to the state legislature. That year, Joe Lang Kershaw, a civics teacher, became the first African American elected since reconstruction.
Voters Attempt Automatic Restoration
Florida’s first attempt at automatic rights restoration was in 1974 when the legislature passed a law, but, it was struck down by the state Supreme Court which said only the Governor and the Cabinet had that power. In response, then-Governor Ruben Askew created a similar process that allowed most felons to get their rights back when they were out of prison.
Florida’s semi-automatic rights restoration process stuck until Gov. Mel Martinez’s administration, but during that time, the number of people who received clemency began to fall.
"And then it continued to go down for eight years under Lawton Chiles," said Kousser.
When Jeb Bush was elected, Kousser says he made the restoration of rights a priority.
"Jed Bush used his powers of executive clemency to make it easier for returning citizens to vote. Saying at one point that people who were too poor to pay any fines that they owed shouldn’t be disenfranchised just because they are too poor."
Former Governor Charlie Crist continued the policy of semi-automatic rights restoration. During his administration, hundreds of thousands of felons got their voting rights back.
Florida’s process stuck around all the way through 2011. It wasn’t perfect, and there were problems, but the process ground to a halt in March of 2011 when former Governor Rick Scott changed the rules.
Restoration Grinds To A Near Halt
“First, anyone seeking restoration of civil rights must submit an application. Second, the clemency board will review each application individually before deciding whether to grant the restoration of civil rights. Restoration of civil rights will not be automatically granted for any offenses,” Scott announced in March of 2011.
In his first convening of the state clemency board, he outlined the new rules. The board is made up of the Governor, Agriculture Commissioner, Attorney General, and Chief Financial Officer. And they all voted to stop the automatic restoration of voting rights.
"They create two categories of restoration of civil rights, essentially violent and non-violent offenses," explained clemency lawyer Reggie Garcia. " If it’s a non-violent offense, you have to wait five years from the conclusion of prison or probation before you can apply for clemency. If it’s one of the 35 enumerated more violent felonies or more serious felonies that waiting period is seven years."
The result:
“I think in four years’ governor Crist and the cabinet approved...125,000," Garcia said. "...In eight years Governor Scott’s approval of the restoration of civil rights... was under 4,000.”
The new rules under Scott, then-Attorney General Pam Bondi, former State CFO Jeff Atwater, and former Agriculture Commissioner Adam Putnam, helped push Florida to become the top state in the country for felony disenfranchisement, with nearly 1.5 million felons unable to cast ballots by the time Scott left office in 2018. The rules also made Florida an outlier, says the Brennan Center for Justice’s Sean Morales-Doyle.
“Over the last 40 or 50 years’ states have really, most states have really moved away from that and so actually as of 2018 Florida was only one of three states in the country that personally disenfranchised every single person convicted of a felony," Morales-Doyle said.
It also made the state a target for lawsuits, and in early 2018 a federal judge ruled Florida’s restrictive clemency process violated both the 1st and 14th amendment. By that time, a plan to change the state’s process was already underway by Desmond Meade.
“We believe that the decision on which American citizens get the right to vote, and which do not get the right to vote, should not be left in the hands of any politician, whether they be Republican, Democrat, or Independent,” Meade said.
Meade is the leader of the grassroots group formed to restore rights to felons. The Florida Right Restoration Coalition was frustrated by the slow pace of rights restoration and the rising numbers of felon disenfranchisement. This effort became the Amendment 4 campaign. And in November 2018 Florida voters approved the amendment restoring the voting rights to an estimated one million felons.
In the next part of this series, we take a closer look at what has happened since 2018’s Amendment 4 was passed by Floridians.
