Trump and Biden's Florida polls highlights stakes of 2020 voting rights for ex-felons

The demographics of the 2020 electorate could look remarkably different from previous presidential races. But this can happen only if we champion this expansion of democracy.
Image: Floridians Go To The Polls On State's Primary Election Day
Voters fill out their ballots on primary election day in Miami on Aug. 18.Joe Raedle / Getty Images
By Joshua A. Douglas, law professor at the University of Kentucky

On Friday, a federal appeals court curtailed Florida's successful referendum to restore the vote to 1.4 million citizens convicted of felonies. The decision is a serious setback for voting rights advocates who had hoped to help hundreds of thousands of the formerly incarcerated register in time for the 2020 election. The court ruled that before they can register, people convicted of felonies must pay outstanding court fines and fees, a practice critics decried as a modern-day poll tax.

Sadly, the practice of taking away the fundamental right to vote from people convicted of felonies has a long, unfortunate history in America.

Given the incredible stakes of this election, this decision could literally help swing the results in Florida. The latest NBC News/Marist poll shows President Donald Trump and former Vice President Joe Biden in a dead heat in the key battleground state. Meanwhile, Michael Bloomberg has just pledged $100 million to help Biden's chances there. But the size of the electorate in Florida is not as robust as it could be because of the court's ruling, which will keep tens of thousands off the voter rolls.

Sadly, the practice of taking away the fundamental right to vote from people convicted of felonies has a long, unfortunate history in America, dating to the republic's earliest days. After the Civil War and throughout the Jim Crow era, states expanded and updated their felon disenfranchisement provisions to target newly freed slaves and their descendants. This legacy has contributed to the serious problem of systemic racism.

Even as the nation confronts its sorry history of racial intolerance amid the protests against police brutality, the drive to expand voting rights marks a major step forward for racial justice in America. Felon disenfranchisement disproportionately harms African American voters. Black Americans are four times more likely to lose their right to vote than other demographic groups, according to the Sentencing Project. Because of felony convictions, 1 of every 13 adult Black Americans has lost the right to vote.

But several key states have recently eased their rules on felon disenfranchisement, which could have an impact on the November results.

Indeed, voting rights efforts could still make the presidential race a watershed election. Given the many lawsuits fighting voter suppression, this progress has been remarkable. Hundreds of thousands of people convicted of felonies have already had their voting rights restored. States across the nation have expanded the franchise through new legislation, constitutional provisions, executive orders and judicial rulings. Ensuring that these new voters are registered on time or that they request mail-in ballots should be a top priority — particularly during the pandemic.

In Florida, for example, close to 65 percent of the electorate approved a 2018 state constitutional amendment that restored voting rights to all people convicted of felonies (except murder or sexual offenses) who have completed their sentences.

In response, the Republican-controlled legislature swiftly passed a law declaring that only those who had paid all their legal financial obligations could vote. It severely limited the amendment's reach — in addition to being contrary to the public's intent. Although two court rulings overturned the law, the full 11th U.S. Circuit Court of Appeals just upheld it. The upshot: Far fewer people will be able to vote.

Various groups have stepped in to help the many people unable to pay court fees and other fines. Time is short, though. Florida's voter registration deadline is Oct. 5.

Various groups have stepped in to help the many people unable to pay court fees and other fines. Time is short, though. Florida's voter registration deadline is Oct. 5.

Advocates in North Carolina, another battleground state, sought to address a similar curtailment issue — with more promising results. A three-judge state court decided this month that an aspect of North Carolina's felon disenfranchisement practice violates the state Constitution. The court ruled it illegal to deny the right to vote to people convicted of felonies who have completed their sentences but cannot repay financial obligations, including court costs and other fees. Assuming the ruling stands, thousands of state residents who could not participate can now vote.

This voting rights expansion follows bipartisan action in key states that historically disenfranchised scores of voters. Before the 2016 election, for example, four states disenfranchised felons for life: Virginia, Kentucky, Iowa and Florida. Now all four have eased their rules.

In Virginia, Democratic Gov. Terry McAuliffe used his executive pen in 2016 and 2017 to restore voting rights to 156,000 people who had committed felonies. In Kentucky, Democratic Gov. Andy Beshear in December gave back the right to vote to about 152,000 people convicted of nonviolent felonies who had completed their sentences. In Iowa, Republican Gov. Kim Reynolds last month signed an order to restore the right to vote to thousands of Iowans convicted of felonies who had served their time.

"When someone serves their sentence," Reynolds said, "they should have their right to vote restored automatically."

Other states have also eased their rules in the past few years. Wyoming restored the right to vote to those convicted of nonviolent felonies after they complete their sentence. Alabama clarified its felon disenfranchisement law to allow thousands convicted of various nonviolent crimes to vote. New Jersey restored voting rights for people on probation or parole, enfranchising about 80,000. Colorado and Nevada eased rules, as well, and both now restore the right to vote when people finish their prison sentences — even if they are still on parole. Washington, D.C., joined Maine and Vermont in allowing people in prison to vote, thereby never disenfranchising anyone because of a felony conviction.

It does no good, however, to restore the right to vote if people are cut out of the process by not registering in time. Several states' voter registration deadlines are roughly a month before Election Day. The pandemic has made in-person voter drives virtually impossible. Therefore, advocates should actively seek out state organizations and individuals who can reach these new voters and make sure they are on the rolls.

Prompt action is vital because, historically, citizens who regain their voting rights participate at very low numbers compared to the rest of the electorate. That reality undermines the efficacy of all these new rules.

The demographics of the 2020 electorate could look remarkably different from previous presidential races. But this can happen only if we champion this expansion of democracy — and actively encourage these new voters to cast their ballots.