Category Archives: felon voting

“A Texas man was arrested on charges that he voted in the 2020 Democratic primary while on parole. He could face as much as 20 years in prison”

WaPo:

Hervis Rogers was so intent on casting a ballot in last year’s presidential primary that he waited six hours to vote, catching the attention of a CNN news crew when he became the last person to do so at his Houston polling place….

More than a year later, Rogers was arrested on charges that he voted in last year’s Democratic primary while on parole. Under Texas law, it is illegal for a felon to “knowingly” vote while still serving a sentence, including parole. Doing so is a second-degree felony, punishable with a minimum of two years and a maximum of 20 years in prison. In at least 20 states, Rogers’s alleged vote would not be a crime.

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New essay alert: “In Whom is the Right of Suffrage?”

This is my first blog post on ELB, and I couldn’t be more excited to be a part of the revamp. I am a devout reader of the blog and very much appreciate the hard work that Rick has put in to provide this outlet for the election law community.

I wanted to blog a bit about an essay that I wrote for the joint “Reckoning and Reformation” symposium (which was graciously hosted by a number of law reviews) that I am super excited about. My contribution, forthcoming in the University of Pennsylvania Law Review, is entitled “In Whom is the Right of Suffrage?: The Reconstruction Acts as Sources of Constitutional Meaning.” It is on ssrn, available here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3880655.

The essay (which is short!) looks at the Reconstruction Acts that readmitted the former confederate states back into the union during Reconstruction. Scholars have long argued that these acts, which imposed certain limits on these states as a condition of readmission, are legally unenforceable, but my essay argues that the statutes still have implications for how we think about voting rights today.

Importantly, the Acts imposed limitations on southern states with respect to the voting rights of their citizens, stating that they could only disenfranchise individuals for felonies at common law. This language sheds light on the reach of the reduced representation provision of Section 2 of the Fourteenth Amendment and, importantly, the universe of crimes for which one can be disenfranchised consistent with the republican guarantee of Article IV, Section 4. Section 2, in particular, allows Congress to reduce a state’s delegation in the House of Representatives by removing disfranchised voters from the basis of population used for apportionment, but permits states to disenfranchise individuals “for participation in rebellion or other crime.”

Clarifying Section 2, the Reconstruction Acts specify that these states can disenfranchise their residents only for crimes “as are now [1868] felonies at common law” and not for the wide range of crimes that are currently used to disenfranchise individuals in all southern states. In other words, when states disenfranchise their citizens in violation of Section 2 and the Guarantee Clause, as informed by the Reconstruction Acts, these violations constitute an abridgment of the right to vote and render their governments unrepublican in form.

This essay has obvious implications for Florida’s felon re-enfranchisement provision (SB 7066), which requires individuals to pay all fines and fees before they can regain their right to vote after a felony conviction. In Jones v. DeSantis, the 11th Cir upheld SB 7066, but there is no mention of the 1868 Reconstruction Act in the court’s opinion, which upheld the law on the grounds that paying all fines and fees is “highly relevant to voter qualifications.” However, the fact that people are impermissibly disenfranchised for crimes that were not felonies at common law, as specified by the Reconstruction Act readmitting Florida into the union, means that the requirement cannot be relevant to voter qualifications and therefore makes SB 7066 a poll tax.

I hope that you enjoy this short read! Comments are welcome!

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“Bill restores voting rights to Washingtonians with felonies upon release from prison”

Seattle Times:

As Americans last year debated the elections, Victor Sauceda endured tough conversations with friends and others talking about their votes.

Sauceda, 31, was released from prison in October 2019, he said, after serving time for felony convictions — meaning he couldn’t vote last November.

“I just feel that shame that goes along with it, telling them I could not vote,” said Sauceda. “I felt like I was not good enough to vote.”

That dynamic changed Wednesday as Gov. Jay Inslee signed a bill restoring the right to vote for Washingtonians convicted of felonies automatically upon their release from incarceration.

Under House Bill 1078, roughly 20,000 people would regain their right to vote, according to the state Department of Corrections.

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“He Fought For Voting Rights In Georgia, Then He Was Locked Up”

Johnny Kauffman for WABE:

Tariq Baiyina has lobbied politicians, shaken hands with governors, set up a college program, and delivered dozens of sermons. Despite all this, the 42-year-old has never voted. And the reason is simple: since 2002, when he was convicted of a felony, he hasn’t been allowed.

Felony disenfranchisement has become commonplace in the US, where 5.2 million people can’t vote, according to a new estimate from the Sentencing Project. While dozens of countries allow all people held in prison to vote, only two states Vermont and Maine — as well as Washington, D.C, do so in the US.  And in some states people lose their voting rights even after they’ve been released. In Georgia, where Baiyina was convicted, for example, the ban lasts through probation and parole, which can extend decades after serving time.

Black Americans, like Baiyina, are about 3.7 times as likely to lose their voting eligibility than other adults. But as the country begins to confront head-on issues of racism and inequality, more states are scaling back felony disenfranchisement. Earlier this year, Iowa became the final state to lift what had been a lifetime ban.  In Florida, voters in 2018 approved a referendum restoring eligibility to people who are off probation or parole, though it was quickly dismantled by Republicans.

When Baiyina was convicted nearly two decades ago of armed robbery and carjacking, he wasn’t thinking about how people elected to run the government might affect his life, but soon he would become part of that movement, fighting to win power for himself and others punished by the legal system. In a few years, he would grow into a leading voice against felony disenfranchisement in Georgia. And for Baiyina, the cause is about more than just winning influence over who writes laws, it’s a personal quest to escape lingering punishment, and find citizenship. A quest that his own mistakes could quickly, and dramatically, interrupt.

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“In last-minute push, DeSantis administration urges Florida election officials to remove felons who owe fines from voting rolls”

WaPo:

Florida Gov. Ron DeSantis’s administration delivered last-minute guidance to local election officials recommending measures that voting-rights advocates say could intimidate or confuse voters, the latest salvo in a pitched battle over who is able to cast ballots in a state crucial to President Trump’s reelection.

In a notice sent to local election officials last week, Division of Elections Director Maria Matthews urged them to remove from the voter rolls people with felony convictions who still owe court fines and fees, a move that local officials said is impossible to accomplish before Election Day.

A second memo from Secretary of State Laurel M. Lee’s general counsel recommended that election staff or law enforcement guard all mail ballot drop boxes, a step that local election officials say is not required under the law.

Election officials said they do not have time or resources to implement either measure before the Nov. 3 election, and voting rights advocates cast the back-to-back missives as the latest effort by the Republican governor and Trump ally to impede access to the ballot box.

“They’re attempting to sow confusion,” Patricia Brigham, president of the League of Women Voters Florida said of the state’s instructions. She added: “The state of Florida doesn’t have a spotless record when it come to making sure voters have easy access to the polls.”

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“Free Our Vote: Using Data Activism and Crowdsourcing to Restore Voting Rights for Former Felons in Florida”

The following is a guest post from Neel U. Sukhatme, Associate Professor, Georgetown University Law Center, and Co-Founder, Free Our Vote:

As readers of this blog might know, nearly 65% of voters in Florida supported a ballot initiative in 2018 to restore voting rights for most former felons in the state. Unfortunately, the state legislature and governor subsequently enacted SB 7066, which removed voting rights for hundreds of thousands of former felons who still owe fines, fees, court costs or restitution associated with their sentencing. Subsequent legal challenges to SB 7066 ultimately failed.

There are many legal and ethical problems stemming from this suppression of voting rights. But a more basic problem is pragmatic: most former felons cannot even find out how much they owe in fines/fees because Florida does not maintain a centralized database that tracks this information.

My colleague, Alexander Billy, and I were troubled by this. So we founded Free Our Vote, a non-partisan, non-profit organization comprised of data scientists, economists, and legal researchers that seeks to restore voting rights for former felons. Leveraging our past experience with Florida data, Free Our Vote has collected accurate fines/fees information for over 425,000 Floridians across 24 counties that comprise over 85% of the state’s population.

The data we’ve gathered has enabled us to launch a multi-media information campaign with our partners, the Campaign Legal Center and Florida Rights Restoration Coalition. Together, we have informed tens of thousands of former felons who owe nothing that they should be able to participate in the November election. Free Our Vote’s data-centered approach has also helped us support the Florida Rights Restoration Coalition in strategically allocating repayment of fines/fees to maximize the number of people whose voting rights are restored.

Separately, Free Our Vote is partnering with Robert F. Kennedy Human Rights, a 501(c)(3) tax-deductible organization, to pay off fines/fees for Floridians with felony records. Though the support of generous donors, we will have repaid more than $50,000 in fines/fees across multiple counties, enabling Free Our Vote to restore voting rights for well over 1,000 former felons. Free Our Vote’s efforts on this front will continue up through Election Day.

Sadly, the shadow of fines/fees will continue to impact thousands more past November 3, limiting their ability to obtain a driver’s license, let alone cast a ballot. Free Our Vote will continue to work on this issue, leveraging the rich data we’ve collected and working with partners such as the Fines and Fees Justice Center to inform policymakers and redress these shortcomings in the criminal justice system.

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A Florida purge of supposed felons just before the election….where have I heard this before?

CNN:

Election officials in Florida are taking steps to remove ex-felons from the voter rolls if they still owe court debts, according to an email sent this week to county elections officials obtained by CNN.

The state’s elections director, Maria Matthews, told local elections supervisors on Tuesday that they would begin to receive files on convicted felons “whose potential ineligibility is based on not having satisfied the legal financial obligations of their sentence.” The email added that if local officials received information about registered voters who are ineligible from sources other than the Florida Department of State, “you should act on it.”

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“Statement on Florida Officials’ Plans to Remove People with Past Convictions from Florida’s Voter Roll”

Via email:

With less than 18 days until the 2020 General Election, the Florida

Division of Elections made plans to remove returning citizens who owe legal financial obligations from Florida’s voter roll in direct violation of Florida’s 30-day notice period.

The American Civil Liberties Union (ACLU), ACLU of Florida, Brennan Center for Justice at NYU Law and NAACP Legal Defense and Educational Fund, Inc. responded with the following:

“On the eve of a consequential election, Florida officials wrongfully endeavor to scare as many

eligible voters as possible away from voting. Florida’s Division of Elections intends to send whatever unreliable information it has to Florida Supervisors of Elections (‘SOEs’) to merely suggest some registered voters may owe legal financial obligations (‘LFOs’).

“Under a recent appellate court decision, Florida, for now, can require people with most felony convictions to pay LFOs arising from their conviction(s) before regaining their right to vote. Yet Florida had not removed people from the voter rolls for LFOs since the Florida Legislature undercut the will of Florida’s people and enacted a law creating this pay-to-vote system on July 1, 2019.

 “It is now long past when they are permitted to do so. The Division of Elections’ untimely effort to disqualify currently eligible voters requires a 30-day notice period and cannot be completed before Election Day. Importantly, Florida knows it can only remove an otherwise eligible voter through unequivocally credible and reliable information of the otherwise eligible voter’s outstanding LFOs. It additionally must give the voter notice and an opportunity to contest the state’s information. All of this takes time—seven days for the SOEs to review and act on the Division of Elections’ information and 30 days for each voter to participate in a hearing to contest the State’s information, which we know—and a federal trial court recognized—is flawed. In short, there is insufficient time before Election Day for any voter to be removed from the rolls under Florida state law requirements. Florida’s proposed action is simply an attempt to scare people with felony convictions away from voting and constitutes voter intimidation—par for the course in Florida.

“Yet as the Eleventh Circuit made clear: until Florida ‘complete[s] its screening’ of the 85,000 registrations it received ‘from felons who believe[d] they were re enfranchised’ at the time of trial, ‘it will not have credible and reliable information supporting anyone’s removal from the voter rolls, and all 85,000 felons will be entitled to vote.’ Jones v. Governor of Florida, No. 20-12003, 2020 WL 5493770, at *2 (11th Cir. Sept. 11, 2020).”

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“What happened to Florida’s Amendment 4? Five takeaways from our investigation”

Tampa Bay Times:

 A few months ago, we and ProPublica wanted to answer a question: How many people with felony convictions have registered to vote under Amendment 4?

Passed by nearly two-thirds of voters in 2018, the amendment was supposed to be America’s greatest expansion of civil rights in decades, allowing an estimated 1.4 million to vote. Some speculated it could swing Florida’s election in favor of Democrats.

We found that hasn’t happened. At all.

You can read the full investigation here. Here are 5 things we learned while reporting this story…

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“Mike Bloomberg raises $16 million to allow former felons to vote in Florida”

WaPo:

Former New York Mayor Mike Bloomberg and his team have raised more than $16 million to pay the court fines and fees of nearly 32,000 Black and Hispanic Florida voters with felony convictions, an effort aimed at boosting turnout for Democratic presidential candidate Joe Biden.

The money will go to fund a program organized by the Florida Rights Restoration Coalition to pay the fines, fees and restitution costs for former prisoners who are already registered to vote in Florida but barred by law from participating in the election because of those outstanding debts.

Bloomberg, who has committed at least $100 million to electing Biden in the state, raised the money from individuals and foundations over the last week, his advisers said. He saw the donations as a more cost-effective way of adding votes to the Democratic column than investing money to persuade voters who already have the right to vote, a Bloomberg memo said.

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“How Republicans Undermined Ex-Felon Voting Rights in Florida: It’s a cautionary tale about the messy process of citizen-led ballot initiatives and how a dominant political party can exert its power”

NYT:

When voters passed the referendum, known as Amendment 4, civil rights groups celebrated what was billed as a potentially game-changing expansion of the electorate in the nation’s biggest battleground state. White people like Mr. Gruver represent a majority of the state’s former felons. But Black residents are disproportionately represented: More than one in five potential Black voters in Florida were barred from casting a ballot.

Nearly two years later, most former felons remain shut out of the ballot box over their inability to pay legal financial obligations. Of the about one million former felons in Florida — a conservative estimate — at least three-quarters owe court debt. Between 70 and 80 percent are indigent and unable to pay.

And even those who can pay face a Catch-22: Because there is no central database of court fines and fees, it is difficult or impossible to establish how much anyone owes. As of May, the state had failed to process any of the more than 85,000 voting registration applications submitted by former felons since Amendment 4 passed in late 2018.

“It has been a very long slog to change public opinion on the re-enfranchisement of felons, and it took millions of dollars and a lot of effort to get that initiative passed,” said Nathaniel Persily, a Stanford University law professor. “The idea that felons would then have to pay money in order to vote after being enfranchised is depressing.”

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Breaking: Divided 11th Circuit, Sitting En Banc, Upholds Florida Law Making It Harder for Ex Felons To Vote without Acknowledging That Some Ex-Felons Do Not Know How Much They Owe in Fees and Fines

You can find the 200 pages of opinions and rulings at this link.

From one of the dissents (Judge Martin):

Second, even if a returning citizen is able to determine his original LFO obligation, then “[d]etermining the amount that has been paid on an LFO” is likewise “often impossible.” Id. at *18.


The State, pointing to its advisory-opinion system for voter eligibility, says the Plaintiffs cannot complain about the inability to determine LFO obligations because, since the enactment of SB-7066, only about 30 members of the public have made inquiries of the Florida Department of State about “voter eligibility with regards to financial terms of sentence.” Br. of Appellant at 55. This is beside the point. Although the State offers the advisory opinions as a panacea, it explains in its briefing that these advisory opinions actually only give a returning citizen “a legal determination on whether he would violate the laws against false registration and fraudulent voting by registering and voting given the facts and circumstances attendant to his case.” Id. The Department of State’s current advisory-opinion process does not promise returning citizens accurate information about their outstanding LFOs.

And in any event, this record shows the precise amount of payments made is “sometimes easy, sometimes hard, sometimes impossible” for a returning citizen to determine. Id. at *21, *23. The District Court discussed a number of examples of returning citizens struggling mightily to calculate their outstanding LFO balance.

One named plaintiff, Clifford Tyson, contacted the Hillsborough County Clerk of Court to help him determine his outstanding LFO balance. Id. at *20. The District Court recounted that it took the Clerk of Court’s “financial manager” and “several long-serving assistants” 12 to 15 hours to come up with an answer. Id. Even at the end of that painstaking process, nobody was able “to explain discrepancies in the records” that surfaced. Id.

Under the majority’s decision, it remains incumbent on the person seeking to vote to bring all relevant “facts and circumstances” to the State’s attention, including the amount of his outstanding LFOs. To the contrary, I believe the State has an obligation to give accurate information to its citizens about how much it believes they must still pay to discharge their obligations under SB-7066. This is particularly so, in light of the State’s idiosyncratic “every-dollar” method of calculating payment. Under this method, all payments made in relation to an LFO are to be counted toward the outstanding balance of a criminal sentence, even if a portion of the payment has in fact been allocated elsewhere in the payment process. See id. at *21. So it is the State’s position, adopted by the majority, that a returning citizen can qualify to vote if he has paid the amount assessed in his sentencing document, but still has outstanding LFOs if any portion of his payments were, say, pocketed by a debt collection company. As I understand it, this “every-dollar” method is not the mode of accounting any local government uses for any purpose. This is likely because the calculation method was devised midway through this case, apparently as a litigation strategy, and seems completely divorced from how LFO remittances actually work. But, because no formal policy, rule, or statute in Florida provides for the tracking of “every dollar” paid, for many, this “fact” the State demands to know is simply unknowable. This result cannot comport with due process.

I would be very surprised to see the Supreme Court take up this case before the election.

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