Why is Florida screaming about the pay-to-vote system it created?

Former mayor of New York City Michael Bloomberg, who also ran for president earlier this year, has been in the headlines  recently because he is helping to fund an effort to restore voting rights in Florida. Some of those headlines make it sound like Bloomberg is paying individuals for their votes. He is not. The truth is much more complicated. 

For the past two years, Florida has struggled to join the rest of the civilized world and the rest of American democracy by expanding voting rights for returning citizens coming home from jails and prisons. In 2018, a supermajority of Florida voters voted in favor of restoring the right to vote to most ex-felons through a change to the state’s constitution known as Amendment 4. 

The language of Amendment 4 stated that “any disqualification from voting arising from a felony conviction shall terminate and voting rights shall be restored upon completion of all terms of sentence including parole or probation.” As you can see in the text, there is no mention of fees or fines. At the time the amendment passed, Florida was only one of four states that penalized ex-felons with a lifetime of disenfranchisement. Had Amendment 4 worked as most voters thought, 1.4 million Floridians would have had their right to vote restored. 

But not so fast, because Florida’s Gov. Ron DeSantis (R) and the Republican controlled legislature in Tallahassee had other plans. Faced with the “horror” of an expanding electorate, which would have included many racial minorities, they devised a plan to throw a wrench into the voting rights of hundreds of thousands of Floridians. They created a new statute called SB 7066, which required ex-felons to pay all outstanding fines and fees before their right to vote could be restored. To add insult to injury, Florida did not set up a functional system to inform ex-felons of how much they owed. 

When impacted returning citizens sued stating the new law was unconstitutional under the U.S. Constitution and the newly amended Florida Constitution, at first they found a sympathetic ear in Federal District Judge Hinkle. He found in his 125 page ruling that the catch-22 that Florida had set up to entangle returning citizens to be so bad that it was an unconstitutional poll tax since truly indigent Floridians who could not pay were being told that their rights could only be restored if they magically coughed up the money. Judge Hinkle rightfully lambasted Florida for creating a pay-to-vote system for returning citizens. 

But that victory for compassion, justice and the spirit of Amendment 4 was short lived. The 11th Circuit considered Judge Hinkle’s ruling en banc and overruled him on Sept. 11, 2020. In a decision that equal parts callus and Kafkaesque, the ruling ignores that Florida has not set up a functioning system to even tell impacted citizens how much they owe. For instance, Florida was incapable of telling the 17 plaintiffs in the case after a year of litigation exactly how much any of them owed. Over 80,000 ex-felons have asked for their rights to be restored in Florida, but so far the state is only clearing 56 cases per day. As the district court noted, at the rate it’s going to take years to clear the backlog. And in all of those years of delay, impacted citizens won’t be able to vote. 

Even for those who know how much they owe, there is still the problem of being too poor to pay the debts. As the Supreme Court said in Harper v. Virginia Board of Elections in 1966, “Wealth, like race, creed, or color, is not germane to one’s ability to participate intelligently in the electoral process.” In 2020, poverty should not be a bar to voting. 

So back to Bloomberg. According to press reports, he gave $16 million to the Florida Rights Restoration Coalition, which has been helping returning citizens pay their outstanding fees and fines so that they can get their rights back as the 11th Circuit’s decision demands. 

Because no good deed goes unpunished, Rep. Matt Gaetz (R-Fla.) and the Republican Attorney General of Florida are now calling for investigations of Bloomberg for giving to a nonprofit which is trying to get Floridians’ voting rights restored consistent with the law. Then President Trump piled on with baseless accusations that Bloomberg is a criminal. 

Expert witness Professor Daniel Smith in the trial court case of Jones v. DeSantis estimated that over 750,000 citizens in Florida would be kept from registering to vote because of unpaid fees and fines. Even Bloomberg’s millions will only scratch the surface of this massive problem. It would be deeply ironic if Florida goes after Bloomberg for helping to pay money to Florida when it was the state itself that insisted on a pay-to-vote scheme to keep its own citizens from being enfranchised. 

Ciara Torres-Spelliscy is a law professor at Stetson University, a fellow at the Brennan Center, the author of the book “Political Brands,” and featured in Netflix’s Whose Vote Counts? miniseries.