On September 11th 2020, a federal court of appeals decided that Florida’s former convicts must pay all court fines before they can vote. This blunted the effect of Amendment 4, which passed in 2018, stating that former convicts in Florida would – for the first time in history – have the right to vote. The legal battle over felon enfranchisement in Florida is a case study of democratic erosion in the US, with implications far beyond Florida. First, it represents a systematic, undemocratic effort to prevent people from voting. Second, it undermines the electoral system that passed Amendment 4. Finally, the case exposes how political polarization undermines democracy. Studying how these three themes worked together in Florida allows us to understand the threats to American democracy.
First, this case represents a clear effort to prevent people from voting. Ozan Varol warns that voter registration laws are “ripe for manipulation by self-interested political leaders with a mind to insulate themselves from meaningful democratic challenges.” [1] The question of who can vote can lead to abuse of power from the people in charge, who don’t want new voters changing the political landscape.
Amendment 4 would have granted 1.4 million Floridians suffrage. Floria’s Republican controlled state legislature immediately argued that former convicts should have to pay all fines before they can vote under the new amendment. The battle escalated when two former convicts sued the state of Florida. A lower court sided with the former convicts, saying that restitution of debts amounts to an unconstitutional poll tax. The state of Florida appealed this decision, and the federal court of appeals stood with the state of Florida. The conservative-majority Supreme Court of the US declined the case, thereby leaving the court of appeals’s decision in place. These fines start at $500, but many are much higher. One of the two ex-felons who sued the state of Florida owes $50 million to the State of Florida from court fees alone. The lower court judge who initially sided with the former felons said that the “overwhelming majority” of returning citizens are far too poor to pay these fines. The GOP controlled state legislature certainly has a motivation for preventing 1.4 million likely democratic new voters from registering. So does Republican Governor Ron DeSantis, who signed the legislature’s bill into law.
The State of Florida argued that Amendment 4 stated felons must have completed their sentence “in full,” and that this includes fees. Fees were not mentioned in the text of the amendment. Furthermore, the state is not providing former convicts with clear information about how much they owe. There is no website or public database. This lack of transparency suggests Florida Republicans are acting to prevent an influx of over a million likely Democratic voters. Keeping Americans from being able to vote is a clear red flag in the health of our democracy. A federal court blessing this move is a dark omen.
Second, this decision fundamentally undermines the electoral process. Almost two-thirds of Florida voters in 2018 voted for Amendment 4. This means that Amendment 4 had hundreds of thousands of votes beyond the supermajority of 60% required to pass an amendment in Florida. This margin indicates bipartisan support with voters. The Florida state legislature undermined something that its own constituents voted for. Robert Dahl defines democracy as a continuing process by which citizens communicate preferences to leaders, who then respond in kind. [2] Florida’s voters communicated that they wanted former convicts to be able to vote. Florida’s state legislature, governor, and the 11th circuit of the federal court of appeals all worked against them. The explanation for this failure to enact the voters’ preference is political polarization.
The final symptom of democratic illness in this case is political polarization. Along with a resounding majority of experts, Levitsky and Ziblatt warn that political polarization is a tell-tale sign of democratic erosion.[3] On all levels of the battle over Amendment 4, the split was not legal, theoretical, or constitutional. It was political. The September 11 federal court ruling was split 6-4. Five of these six judges were appointed by Trump. The sixth was appointed by George W. Bush, and is rumored to be on a short list that Trump would nominate to the Supreme Court. All four dissenting judges were appointed by Democrats. The lower court judge who ruled against the State of Florida (and who called fee restitution a “poll tax”) was appointed by Bill Clinton. The Florida legislature who first said felons have to pay fees is Republican controlled. The governor who signed that bill is a Republican. At every stage of this case, political polarization determined the outcome. Some Americans might see this as typical for our political moment. But what is at play here is deeply problematic. American students learn about the separation of powers as early as middle school. We are taught that the judicial branch acts independently, and free of political pressure. Instead, in the battle over Amendment 4, the judicial branch was anything but politically independent.
This case is a clear indication of a democracy in trouble, with implications far beyond Florida. Two of the three issues in the case are generalizable to the US at large. Efforts to block votes through fake drop off boxes, eliminated ballots, and long poll lines are national problems. All of US culture is highly polarized. Only one facet of this case doesn’t describe the US. In 2018 in Florida, voters turned out in record numbers to voice bipartisan support for Amendment 4. They were overridden by Republican majorities in the legislature and the courts. Today, we might think that this could never happen on a national level. On the morning of November 4th, we might feel differently.
[1] Dahl, Robert, “Polyarchy: Participation and Opposition,” 1971. [2] Varol, Ozan, “Stealth Authoritarianism,” Iowa Law Review, 2015. [3] Levitsky, Steven, and Ziblatt, Daniel, How Democracies Die, Broadway Books, 2018.
One of the most frustrating things for me reading this article was that the state is not telling felons how much they owe and still barring them from voting unless they pay in full. This is the bit that makes it blatantly clear that the goal is voter suppression and not a state monetary incentive. This whole thing also shows how broken the American legal system is in the first place. It’s horrifying that one man owes $50 million for his own incarceration.
The other thing that this blog post brings up is how the systems that build up American democracy can directly counter the voice of the people. The fact that 80% of Floridians voted for Amendment 4 and yet the legislature was still able to undermine it is, frankly, scary. A similar example that comes to my mind is how Brian Kemp was able to rig the 2018 Georgia gubernatorial election in his favor through using his position as Secretary of State to mark 300,000 voters as ineligible along with other tactics of voter suppression.
This blog post did a really good job of showing how voter suppression in the United States can be so effective and insidious on the state level. And yeah, we shall see how bad the voter suppression will be this year …