By Alison Leal Parker
In November 2018, Floridians struck a major blow against discriminatory voting laws when they went to the ballot box. They approved Amendment 4 in an overwhelming majority, restoring the voting rights of most people in the state with felony convictions. It was an important step toward realizing the American ideal of free and fair elections.
The victory proved to be short-lived. Soon after the vote, the Florida legislature passed a law that once again put people’s ability to vote in jeopardy. SB 7066 requires citizens with felony convictions – whose right to cast a ballot had just been restored – to pay various fines, fees, or restitution, known as legal financial obligations or “LFOs,” before they can vote.
Seventeen plaintiffs, represented by voting rights groups including the ACLU, NAACP LDF, the Brennan Center, and the Campaign Legal Center, are challenging the law in the case Jones v. DeSantis. Last week, I listened to part of the telephone trial, which is now in its final week in the US district court for the Northern District of Florida. The outcome could decide whether hundreds of thousands of formerly incarcerated Floridians are barred from voting this year due to payment requirements.
The testimony I heard included an exchange between plaintiff’s counsel and Doug Bakke, chief operations officer for the clerk of court for Florida’s Hillsborough County. It made clear that many voters in Florida are unable to pay the LFOs at issue.
Bakke explained that the vast majority of fines, fees, and restitution in Florida go unpaid. He told the court that the “more pure or true collection rate is anywhere between 3 and 8 percent of fines and fees assessed.” In a separate line of questioning he agreed that the average LFOs assessed in a first or second degree felony case would be $5,214 – an amount beyond reach for the majority of Americans according to an October 2019 study by JP Morgan Chase, which reported an inability to cope with unexpected bills above $700 for a low-income family and $2000 for a middle-income family. The Chase study was published well before the financial impacts of Covid-19 began to take effect.
But human rights law is clear that individuals’ voting rights cannot hinge on how much money is in their bank account.
Both Florida’s original disenfranchisement of people with felony convictions who had completed their sentences, and SB 7066 requiring payment of LFOs, violate international human rights law. As early as 1998, in a joint report with the Sentencing Project, Human Rights Watch stated that felony disenfranchisement after sentence completion, especially for a broad category of offenses like all felonies, violates article 25 of the International Covenant on Civil and Political Rights, a human rights treaty to which the United States is a party.
Requiring that people pay fines, fees, and restitution violates that treaty’s requirement that the right to vote not be subject to a “distinction of any kind, such as…race…property, birth or other status.” Whether or not a person can afford these fees, the requirement to pay before voting is unreasonable as it amounts to a de facto restriction on the right to vote based on property requirements. It's also inconsistent with the state's obligation to take effective measures to ensure that all persons entitled to vote can do so.
Putting aside these unreasonable restrictions on the right to vote, even if a Florida citizen was able to pay, it’s often impossible to determine how much a particular voter owes. Testimony in this week’s trial revealed that for many potential voters in Florida with felony criminal records, it will be impossible to determine whether they have any legal financial obligations to the state; and if they do, how much they owe. This may be particularly true for those with convictions from the 1980s or earlier.
In an exchange between plaintiff’s counsel and Bakke regarding Pastor Clifford Tyson, a Florida citizen who had felony convictions dating as far back as 1978, Bakke said, regarding the accuracy of the LFO records, “The older the case, the less confidence I would have.”
As plaintiff’s counsel walked Bakke through the various aspects Pastor Tyson’s records, which included old and more recent convictions from the mid 1990s, she asked, “can you tell me today how much Pastor Tyson still owes?”
The answer: “I believe it is still the $2. I have no records to indicate whether or not the costs of supervision have been paid.” Further exchanges regarding separate records held by the clerk’s office introduced the possibility that Tyson owed $271; or possibly $259. The testimony left unclear whether or not additional restitution payments were required of Tyson. In an interview with the Brennan Center for Justice, Pastor Tyson explained that he lives off of a disability payment of $7,600 per year. If he could ever determine the actual amount he owes the state of Florida, it may be an amount beyond his ability to pay.
This testimony laid bare a basic but irrefutable fact: It’s very difficult or impossible for many people with felony convictions in Florida to pay their LFOs. That’s both because they cannot afford to pay the LFOs and because the state is unable to tell them through any centralized system how much they owe.
Although Covid-19 wasn’t addressed directly, the testimony also made clear that the crisis only makes Florida’s chaos around voting rights worse. The Jones trial is being held telephonically because courts have been closed for non-essential services in light of the public health emergency. For those same reasons, returning citizens will struggle to get help or information from court officials like the clerk who testified yesterday, and other offices are unlikely to be open to take payments.
Even before the coronavirus outbreak, some Florida citizens were too poor to pay restitution, fines, and fees. Now, as the state’s recordkeeping proves unprepared to navigate SB 7066 and hundreds of thousands of people's voting rights hang in the balance, Florida must ensure voting rights in the context of a global pandemic. The court’s ruling will have enormous implications for the constitutional and human right to vote in Florida as the Covid-19 crisis rages on.
Alison Leal Parker is managing director of the US Program at Human Rights Watch.