- Originally published in the Los Angeles Times September 26, 2004
Copyright 2004 Los Angeles Times
By: Ann Louise Bardach, Ann Louise Bardach covers Florida politics for
Slate and is the author of "Cuba Confidential: Love and Vengeance in
Miami and Havana."
The worst-kept secret among Florida's Republican elites is their dread of the African American
vote. It is not an unfounded fear. In 2000, blacks in this crucial
swing state voted for Al Gore in unprecedented numbers, a whopping 92%.
Current polls indicate they are even less enamored with George W. Bush
this time around.
State Democrats are
abuzz with suspicions about how Gov. Jeb Bush and his handpicked
secretary of state, Glenda Hood, will limit the effect of black voters
Nov. 2. Though the state has cultivated several voting techniques that
favor Republicans -- an emphasis on military and absentee ballots is
one -- no issue has been leveraged as successfully as its restrictive
policy on ex-felons. One reason is that the Sunshine State holds the
dubious honor of having one of the nation's largest felon populations,
about 5% of its total.
Florida is one of
seven states that imposes a lifetime ban on voting for ex-felons,
barring an act of executive clemency. Currently, more than 600,000
ex-inmates, not including 82,000 in prison, are unable to vote in
Florida. It is impossible to discuss this issue separate from race. In
2000, more than 58% of Florida's ex-felons were African Americans.
A
task force set up by Gov. Bush to recommend changes after the
vote-count fiasco of 2000 urged that the voting rights of prisoners be
automatically restored once inmates completed their sentences. But the
governor refused to review the issue. No matter whether one's crime was
marijuana possession, check bouncing or drunk driving, a felon must
negotiate a daunting obstacle course to win back the right to vote.
It is a policy that disproportionately affects African Americans
in the state's prisons, the vast majority are serving time for drug
offenses. Critics of the policy point out that had Gov. Bush's troubled
daughter, Noelle, been prosecuted for having falsified drug
prescriptions or possession of crack cocaine instead of being placed in
treatment--she would probably be an ex-felon today and unable to vote.
How
critical is the felon issue in Florida? Last year, more than 54,000
felons were released or completed their parole in the state. In 2001,
the ACLU and the Florida Justice Institute sued the state for failing
to comply with a state law mandating that felons be provided
voting-rights assistance upon completion of their sentences. In
response, the state admitted that between 1992 and 2001 it had not
provided the required assistance forms to 125,000 ex-felons. When a
Florida appellate court ordered Bush to provide the forms, he responded
by abolishing them.
In late August, the
state's Clemency Board informed the plaintiffs that about 15% of the
ex-felons have had or will have their voting rights restored without a
hearing. Randall Berg of the Florida Justice Institute says the
remaining 85% will need a hearing before the board, which consists of
Bush and two state Cabinet members. But that's where the Kafka whiplash
begins. The board meets only four times a year and then accepts just 50
cases. That means 200 ex-felons -- maximum -- get processed.
For
the lucky ex-felons who get a hearing, any of the board members, all
Republicans, have the right to deny petition without citing cause.
There is no appeal process. In short, the brother of the president can
decide who gets to vote in Florida. "There is only the court of public
opinion," said Peter Siegel of the Florida Justice Institute, "and Jeb
Bush doesn't seem to care about that."
Florida's
felon-voting laws have their antecedents in pre-Civil War laws that
minimized the number of freed slaves on voting rolls. In 1838, the
state criminalized a host of actions to the detriment of poor,
uneducated freed slaves, along with a penal system to ensure they
served long sentences. For instance, vagrancy and larceny were made
felonies. The state's felons would then permanently lose their right to
vote unless they went hat in hand to the state's Clemency Board.
Particularly
troubling to Southern whites was passage of the 14th Amendment in 1868,
which guaranteed blacks the right to vote. To ensure that blacks would
not reward the Republican Party of Abraham Lincoln with their votes,
the Democratic-controlled Florida Legislature crafted a raft of
statutes to keep blacks out of the polling booths.
After
1880, Florida adopted literacy tests to ensure that many blacks would
be ineligible to cast ballots. There was the "grandfather clause" that
rewarded voting rights only to people whose "grandfathers" had voted,
which knocked more blacks off the rolls.
Another
statute required voters to place eight individual ballots in eight
separate ballot boxes, a rule intended to confuse black voters who had
a 40% illiteracy rate in 1900. In 1889, Florida passed the first poll
tax -- pay-to-play voting -- in the South, which remained in effect
until 1938. In 1902, the state's Democratic Party pushed through a
"whites only" primary system.
African Americans
who fought for suffrage often faced violence. Florida set records for
lynchings in the South through 1946. On election day in 1920, a white
mob laid siege to the black town of Ocoee, not far from Orlando, after
a black man, allegedly carrying a weapon, demanded his right to vote. The town was torched and a half-dozen residents killed.
In
the late 1960s, as Florida Democrats embraced the civil rights
movement, Republicans exploited the state's felon laws to depress the African American
vote. Seeking to redress past inequities, Democratic Gov. Reubin Askew
changed Florida's policy in 1975 to restore the voting right to felons
once they completed their sentences. Gov. Bob Graham continued Askew's
policy. GOP Gov. Bob Martinez reinstated the lifetime voting ban on
ex-felons in 1988.
But Democrats hardly
have clean hands. In the 1990s, Gov. Lawton Chiles tightened the rules
for ex-felons by eliminating certain crimes from clemency
consideration. Gov. Bush has tinkered with the process to further
restrict clemency and increase secrecy.
On
May 5, Secretary of State Hood ordered the state's 67 local election
supervisors to begin purging "ineligible" voters from a list of 48,000
felons she had sent them. Hood insisted that the purge list be kept
secret. Not until a state court ordered her to release the list in June
did the media learn that Hood's list contained names of mostly black
men; there were 61 Latinos. And 2,100 names on the list had received
executive clemency, according to the Miami Herald.
Describing the errors as "unintentional and unforeseen," Hood dropped her insistence that precincts use the flawed list.
In
fact, Hood knew the list had serious problems from the get-go,
according to a May 2 internal memo that detailed dozens of worrisome
concerns.
Just how many ex-felons will
make it to the polls on Nov. 2 remains unclear. Before Hood junked her
felons list, supervisors in 14 counties -- including Brevard, Gulf and
Wakulla -- had sent letters to people on it informing them they were
ineligible to vote.
By law, those who fail
to respond within 30 days can be purged from voting rolls. The Brennan
Center for Justice at New York University notified Hood that she was
violating state and federal voter-registration laws and successfully
argued that county election supervisors should alert those they had
previously purged. It has also sued to challenge the constitutionality
of the state's felon voting laws, and a federal appellate-court panel
agreed with the plaintiffs. The case will be heard by the full court a
week before the election.
Only the most
motivated, proactive ex-felons are expected to surmount the hurdles to
win back their voting rights. Considering that the majority of the
state's former inmates come from poor, often uneducated families, only
a small fraction will probably ever see a voting booth again.
And that suits the state's Republican Party just fine.