The first vote-by-mail ballots in Florida’s March 17 presidential preference primary are on their way to registered voters amid continued uncertainty about the rights of former felons under a constitutional amendment that was supposed to ensure their right to participate.
There’s no telling when the courts will settle the matter. And the Legislature is unlikely to take up the matter again until the courts rule.
Communications aides to Gov. Ron DeSantis, a conservative Republican who’s taken a hard line on Amendment 4 enforcement, had this to say when asked what advice they’d give to people worried about their status:
“According to the Florida Supreme Court, voting rights are restored for certain felons when all terms of a sentence are completed including fines, fees, costs and restitution.”
The Florida Department of State, which oversees elections, hadn’t responded to the same question of this writing.
What do the people doing the actual work of voter registration say?
“If you are a convicted felon and you feel you’ve completed all your sentencing guidelines as ordered by the courts, come get registered and participate in the election,” said Mark Earley, elections supervisor in Leon County and an executive officer of Florida Supervisors of Elections, Inc. The county includes Tallahassee, the state capital.
“If you make a mistake in that registration process and it turns out you still had this fee left over, or this fine or something, and it was an honest mistake, you’re not going to get prosecuted,” he said.
“It is a third-degree felony to sign that oath on the voter registration application in an attempt to defraud,” he acknowledged.
But: “That’s a relatively hard thing for a state’s attorney to prove in court. Absent obvious intent to defraud, nobody’s going to get prosecuted. The worst that can happen is that you’re taken off the rolls as part of the eligibility review process at some point.”
Earley’s office mailed more than 24,000 ballots to voters within the county on Thursday, as well as those living overseas or and service members posted outside the immediate area.
The deadline to register or change party affiliation to participate in Florida’s Democratic and Republican presidential primaries is close – Tuesday, Feb. 18. Early voting begins on March 7, a Saturday.
Meanwhile, Amendment 4 – the state constitutional amendment approved overwhelmingly by the voters in 2018 – remains tied up in court.
At the state level, the Florida Supreme Court issued an advisory opinion siding with DeSantis’ position that ex-felons must pay any fines, fees, or restitution before they recover their right to vote. An Amendment 4 implementing law passed by the Republican-dominated Florida Legislature requires those payments.
On the federal level, the U.S. Court of Appeals for the 11th Circuit heard oral arguments last week regarding whether the law amounts to an unconstitutional poll tax.
U.S. District Judge Robert Hinkle in Tallahassee had ruled in October that, although Amendment 4 requires ex-felons to satisfy any financial obligation, there might be a constitutional problem if they lack the means to pay.
Hinkle issued a preliminary injunction blocking the state from enforcing the requirement against the 17 named plaintiffs in the case before him. That left unresolved the status of hundreds of thousands of people in the same boat but who hadn’t joined the lawsuit.
In arguments before the 11th Circuit, the judges appeared skeptical of the state’s position, according to this account by the Miami Herald and Tampa Bay Times joint Tallahassee bureau.
Those newspapers reported on Thursday that key lawmakers doubted the Legislature would clear up the confusion until the courts have their final say. Sen. Jeff Brandes of St. Petersburg and Rep. James Grant of Tampa agreed the U.S. Supreme Court likely would have to resolve the question. Until then, Brandes said: “We’re in a wait-and-see pattern.” Both are Republicans.
As for the county supervisors, they have no way to confirm whether people registering to vote have criminal backgrounds, much less whether they’ve satisfied any court ordered financial obligations.
Earley’s staff looks to the “four corners” of a completed registration form. “We take people at their word,” he said.
The form asks people to affirm “that I am not a convicted felon, or if I am, my right to vote has been restored.” A new form, developed following passage of the implementing bill, does ask whether a potential voter is a convicted felon.
“We’re not using that version. I think most supervisors are not, actually, because I think the courts have told us not to,” Earley said, referring to the Hinkle ruling.
“There’s no preclearance – let’s make sure this person is not a felon or do they have all their legal financial obligations filled. None of that’s really being done,” he said. “I think a lot of people think that’s what we do, but that’s not what we’re doing.”
The Florida Department of State is statutorily obliged to periodically check voter registration lists against various corrections and court databases, looking for convicted felons. It’s easy to identify if people are still behind bars or on supervised release, Early said.
But there’s no way to flag outstanding financial obligations – meaning state and local official and ex-felons themselves have no definitive way of finding out.
“Because it’s difficult for the state to do the research. There’s no central database. And everything’s also held up in the courts,” Earley said.
Bottom line: “You sign on the form and you get registered, but a lot people are afraid to do that because they’re afraid of committing another felony,” he said.
“I’m not encouraging people who have not completed their obligations to get registered. Getting registered to vote should be a celebration of returning to society and becoming part of the American democracy. I don’t want it to be a scary proposition – that you’re so afraid that you never partake in our electoral process anymore.”