By Mark Haidar | October 3, 2020
In 2018, Florida voters passed a ballot initiative amending the state’s constitution to end lifetime voter disenfranchisement for people with prior felony convictions, except for those convicted of murder or a felony sexual offense. This ballot initiative, known as Amendment 4, restored the right to vote for 1.4 million Floridians, amounting to nearly one in ten adults and one in every five Black adults—five times the rate of White adults in Florida.
Shortly after the passage of Amendment 4, the Republican-controlled legislature passed a law, SB 7066, requiring that all fines, fees, and restitution associated with one’s sentence be paid in full before one may regain his voting rights. Such a law, one would think, comes squarely at odds with the 24th Amendment, which states that the right of citizens to vote “shall not be denied or abridged… by reason of failure to pay poll tax or other tax.” And even if SB 7066 is not a poll tax, requiring voters to pay their debts before casting their ballots surely constitutes wealth discrimination in violation of the Equal Protection Clause.
Yet, on September 11, 2020, the 11th Circuit Court of Appeals upheld this modern-day poll tax, rendering nearly 775,000 of the 1.4 million persons with previous felony convictions no longer eligible to vote due to outstanding legal financial obligations. To understand the court’s ruling, one must look outside the four corners of the judicial opinion and instead look to our nation’s history—for whom does American democracy operate?
For all our nation’s praise of democracy, it has never really been a democracy for all. The same Declaration of Independence that said “all men are created equal” simultaneously permitted the institution of slavery. The three hollowed words that begin our Constitution—“We the People”—really only extended to white, property-owning men. Despite the words of these founding documents—and despite the words of the 24th Amendment—these supposed “protections” seem to matter less when applied to Black persons.
The 11th Circuit’s recent decision serves as a reminder that institutions of racial domination do not simply die, but rather evolve over time. While the 13th Amendment is often credited for abolishing slavery, it essentially sanctioned slavery by way of the criminal justice system—abolishing slavery “except as a punishment for crime whereof the party shall have been duly convicted.” This resulted in a tactical shift whereby, in order to control Black Americans, the state had to proactively label them as “criminals.”
Applying this context to the 11th Circuit decision, it should come as little surprise that Florida’s lifetime felony disenfranchisement law, which passed in 1868, was specifically intended by its advocates to “ke[ep] Florida from becoming [n-word]ized.” At the time, Black people composed almost half of Florida’s population. In response to their growing numbers and increasing political power relative to Whites, the White-controlled legislature passed a series of laws to systematically deny Black Americans their voting rights. Indirect measures such as literacy tests, grandfather clauses, and felony disenfranchisement laws provided the means to eliminate Black votes without violating the 15th Amendment. With Florida’s elections often being decided by razor-thin margins and Amendment 4 representing the single largest expansion of voting rights in the United States in nearly 50 years, the 11th Circuit’s recent decision is but a continuation of these efforts: simply another means to deny Black Americans their voting rights in response to White fear.
Some might argue that SB 7066 is “facially neutral” and does not present different obligations for Black people as compared to White people. However, this would be to ignore how our criminal justice system and economic system interact with Florida’s voting regime. The fact that 43% of those convicted of felonies are Black, roughly three times the percentage of Florida’s Black population, is a direct function of how our criminal justice system hyper-criminalizes Black and Brown people. Similarly, that Black people are more likely to owe outstanding debt compared to Whites should be considered in view of the racial wealth gap in this country. These systems work in lockstep to permanently block access to the ballot: Black and Brown people are criminalized and convicted as felons, their voting rights are conditioned on the full repayment of legal financial obligations, and the subsequent lack of generational wealth, due to the patchwork of housing, education, and labor laws working against Black people, makes repayment unlikely.
Although the 11th Circuit’s decision is a more sophisticated, insidious method of baking white supremacy into our democracy, less subtle means persist today. Take, for example, the practice of prison gerrymandering. Incarcerated persons, who are disproportionately Black and Brown, are removed from their home districts and instead counted where they are incarcerated—often in rural, White communities. This deflates their community’s political power and inflates the power of White interests. Just as Southern states profited off Black people to increase their political power through the Three-Fifths Compromise, modern day prison gerrymandering follows the same model: using Black bodies to increase the political influence of White interests. The vast majority of jurisdictions count incarcerated persons in this manner, and with 2.3 million people incarcerated across the United States, the effect of this practice is not insignificant.
More significant in preserving white supremacy, however, is our electoral college—and, though questioned less, the institution of the Senate itself. Southern political leaders have worked tirelessly to keep national popular vote off the table, recognizing that Black and Brown persons are concentrated in more populous states. White supremacy drives how we elect our President and who controls our most powerful legislative chamber.
Understood in this context, it becomes less curious why the 11th Circuit ruled the way it did. “Democracy” in the United States has never really meant democracy for everyone. We must work to undo the myriad ways in which our democracy systematically favors White voices over Black.
Mark Haidar is President of the Equal Democracy Project and a Joint JD/MPP Candidate at Harvard Law School and the Harvard Kennedy School of Government.
This blog post first appeared in the Harvard Civil Rights-Civil Liberties Law Review’s Amicus Blog.