The Hanging Chad

Before I was even eligible to vote, I saw first-hand how my home state of Florida could not only impact a presidential election with its 29 electoral votes, but how a “hanging chad” could halt one. Undoubtedly, the United States Supreme Court case Bush v. Gore sparked my interest in politics with special emphasis in civic engagement and voting.

Nearly 20 years after the historic ‘hanging chad’ election, Floridians were presented with the opportunity to permanently change the political landscape and voting demographic of the swing state with the passage of Amendment Four, the Voter Restoration Amendment.

Historically, Floridians with a felony conviction could have their voting rights restored only through a clemency hearing led by the governor and the cabinet.

The clemency process lacked clear rules, governing standards, and granted the governor broad discretion in determining whether an applicant’s rights would be restored. Under former Governor Rick Scott’s administration, applicants were overwhelmingly denied re-enfranchisement. The clemency process proved to be particularly restrictive, arbitrary, and capricious resulting in the exclusion of hundreds of thousands of people from the voting process.

Voter disenfranchisement of citizens with a felony conviction is not the norm in the United States. In fact, until recently, Florida was an anomaly. It was one of only four states (including Kentucky, Virginia, and Iowa) that did not permit voter restoration for people convicted of a felony offense. However, Florida joined the rest of the country by restoring the voting rights of persons convicted of a felony. It is important to note that individuals with a felony conviction do not accept such terms as “felon,” “ex-convict,” or “convicted felon,” but rather “returning citizen,” as they are returning to society as one who has paid their debt.

In order for a proposed amendment to be placed on the ballot, Florida law requires groups to collect signatures totaling at least eight percent of the votes cast in the previous presidential election. The amendment must pass a review by the state’s supreme court and meet the geographical requirement that signatures must be derived from at least half of Florida’s congressional districts.

With more than 800,000 signed petitions, the Voter Restoration Amendment met the requirements and made the ballot.

Fourth on the ballot, the wording said: “The amendment restores the voting rights of Floridians with felony convictions after they complete all terms of their sentence including parole or probation. The amendment would not apply to those convicted of murder or sexual offenses, who would continue to be permanently barred from voting unless the Governor and Cabinet vote to restore their voting rights on a case by case basis.”

With its passage, the Amendment would give an estimated 1.4 million Floridians with a felony conviction the opportunity to participate in democracy by voting.
Amendment Four was led by campaign chair Desmond Meade. Meade is a returning citizen, was formerly homeless, and battled drug addiction. He turned his life around by completing drug rehabilitation, earning a law degree, and becoming president of the Florida Rights Restoration Coalition (FRRC). FRRC is devoted to helping returning citizens re-enter and transition into society. The organization partnered with the campaign in an effort to pass Amendment Four.

My interest in politics as a kid has never changed.

I majored in political science and became an attorney to gain a better understanding of our electoral and legal system so I could advocate for others. With a desire to work in politics and a passion for civic engagement, I jumped at the opportunity to join the Second Chances, Amendment Four campaign. I managed the day-to-day operations of our headquarters in Orlando, Florida. I worked alongside both small and large civic organizations, churches, community groups, and returning citizens, and their families to ensure passage of the amendment.

The Second Chances campaign was a non-partisan effort that focused on redemption and restoration. The campaign hired returning citizens to be a part of the campaign staff. The campaign not only included them in the campaign; we patronized small businesses owned by returning citizens, and we provided a platform for returning citizens to share how voter suppression was impacting every area of their life.

The campaign hosted town halls, knocked on doors, and traveled from South Florida to the Panhandle to educate voters about the impact and disparity of voter disenfranchisement among returning citizens. As a result of these efforts, on November 5, 2018, surpassing the 60 percent requirement, Floridians passed Amendment Four with 64 percent of voter approval.

Although Floridians made their stance on voter restoration loud and clear, implementation of the new law became an issue.

The Republican-led Florida Legislature introduced SB7066, which would limit the amendment by requiring that all terms of a felony conviction sentence include repayment of all legal monetary obligations. It is particularly difficult for returning citizens to reintegrate into society because many are unable to obtain employment, leaving them with little to no income and dependent on family and friends. With such a huge financial obligation in place, only 20 percent of returning citizens can afford repayment. Many argue that the monetary requirement is akin to a poll tax.

In a consolidated case, five individuals directly impacted by SB 7066 sued Governor DeSantis. The case, Jones v. Desantis, was held in federal district court where Senior United States District Judge Robert Hinkle presided. Jones argued that the repayment of monetary fines as a condition to vote is a direct violation of the Equal Protection and Due Process clauses granted in the United States Constitution. The strict partisan vote of SB 7066 requiring the indigent to repay their restitution, fines, and fees rises to the level of racial discrimination.

DeSantis argued that excluding restitution, fines, and court fees could result in an abolishment of the entire amendment. It was also argued that the amendment language states that rights will be restored after completing all terms of the felony conviction sentence. All terms include restitution, fines, and court costs because restitution, fines, and court fees are included in the actual sentencing order. Conversely, Jones argued that the financial obligations are not part of the criminal sentence, because upon completion of a felony sentence and probation, restitution, fines, and court costs are converted to a civil lien.

After hearing the arguments of the seven day trial, Judge Hinkle ruled favorably for the Plaintiffs on May 24, 2020. Hinkle ruled that it was unconstitutional to require payment from individuals who are genuinely unable to pay. He also ruled it unconstitutional for individuals to pay amounts unknown and undeterminable with due diligence. He further ruled it unconstitutional to require individuals to pay fees and costs because fees and costs are in substance, a tax. Conversely, Judge Hinkle ruled that the requirement to pay a determinable amount of fees as a condition for voting for individuals with the ability to pay is constitutional.

Ultimately, Hinkle’s ruling expanded the number of returning citizens who will be able to vote. Firstly, the ruling is clear, returning citizens are not required to pay as a condition for voting. Secondly, the ruling expands voting for three groups: 1. Individuals who used a court appointed lawyer or declared indigent status in the last proceeding of their felony case 2. Individuals who only have outstanding court fees since fees are considered to be a civil lien 3. Individuals who already had their financial obligations converted to a civil lien are not required to pay fees or costs as a condition of voting. Individuals who fall within these three categories are not required to pay as a condition for voting.

Hinkle was critical of the current administrative process that returning citizens would need to complete in order to determine their voting eligibility. This ruling put in place administrative procedures that are both constitutional and less burdensome for the State and its citizens.As a result of the new ruling, the state of Florida can condition voting on payment of fines and restitution for individuals with the ability to pay, but cannot condition voting on payment of taxes (fees and costs). This is considered a major victory for returning citizens, voting rights, and democracy.

Governor DeSantis has not announced formal plans to appeal Hinkle’s decision. Many speculate that it is highly probable that the case will matriculate through the court system and reach the United States Supreme Court. If so, much like the 2000 Presidential race, Floridians across the state will have to wait to hear whether their vote will count, or if they will have to pay to play.

But in the meantime, the passage of Amendment Four repealed a 165-year-old state law that prohibited people with a felony conviction from voting.

The Second Chances campaign restored that right and shed light on the fact that individuals with a felony conviction cannot be reduced to the stigma of being labeled as ex-cons and should not be treated as second-class citizens. They are our friends, family, and neighbors returning to society because they have paid their debt.

Voter suppression did not end with women’s suffrage, Jim Crow, the Voting Rights Act of 1965, or even Amendment Four. It continues to be a clear and present danger to our democracy. Let us all continue to create a more inclusive democracy by participating in voter education, writing elected officials, and volunteering on the campaigns of citizen led ballot initiatives that expand voting rights.