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Florida, Felons, and Trump

A new law allowing former felons to vote in Florida could tip the electoral balance, but only if it’s upheld in practice

Lawrence Goldstone
November 14, 2018
Photo by Rhona Wise/AFP/Getty Images
South Florida voters wait in line to cast their ballots late in the day at a busy polling center in Miami on Nov. 6, 2018.Photo by Rhona Wise/AFP/Getty Images
Photo by Rhona Wise/AFP/Getty Images
South Florida voters wait in line to cast their ballots late in the day at a busy polling center in Miami on Nov. 6, 2018.Photo by Rhona Wise/AFP/Getty Images

Most Democrats were buoyed by the results of the 2018 midterm elections, in which they retook control of the House of Representatives, added at least seven governorships, and increased by hundreds their representation in state legislatures. In the swirl of what they see as a repudiation of Trumpism, few have focused on an event that is quite possibly the most significant for Trump himself, one which will transfigure the landscape of the coming 2020 presidential election. Voters in Florida, by a large margin, ratified a proposed amendment to the state constitution that, except for convicted murderers or sex offenders, restored the right to vote for those with prior felony convictions, upon completion of their sentences, including prison, parole, and probation.

Florida had been one of four states to permanently deny voting rights to former felons, and accounted for one-quarter of the 6 million disfranchised nationally. With the approval of Amendment 4, however, approximately 1.6 million Florida citizens have become eligible to vote, almost 10 percent of the state’s entire voting age population. Of these, according to the Sentencing Project, more than 400,000 are African-American, this out of a total black voting-age population of about 2.3 million, or 1 in 6. Other estimates put that figure in excess of a half million.

The amendment had enjoyed widespread bipartisan support, with groups as diverse as the American Civil Liberties Union, Catholic bishops, and a Koch brothers PAC urging its passage.

To become law, the measure required a supermajority of 60 percent, which it achieved easily as more than 5 million Floridians, nearly two-thirds of those who cast ballots, voted in favor.

But not everyone was feeling so forgiving. Rick Scott, Republican candidate for the Senate, was a committed opponent of re-enfranchisement, as was Republican gubernatorial candidate Andrew DeSantis. In fact, in his two terms as governor, Scott had done his best to choke off the voting rights of former felons.

In 2007, under Scott’s predecessor, Charlie Crist, also at the time a Republican, Florida’s Executive Clemency Board was instructed to automatically restore the voting rights of felons who had completed their sentences, paid restitution, and had no pending criminal charges. Scott annulled those reforms in 2011 and required former felons to petition the board individually. Scott chaired this four-person panel, the other members of whom were his cabinet officers, and made it absurdly difficult for even the most solid citizens to regain the vote. In addition to being subjected to at least a five-year wait to apply, petitioners were sent through a labyrinthine application process and then required to travel to the state capital, Tallahassee, at their own expense to plead their case before a tribunal that operated under no official guidelines and was notoriously antagonistic to re-enfranchisement. (In a segment devoted to Florida’s restrictions on Last Week Tonight, John Oliver aired one of those hearings, in which Gov. Scott, in a Nurse Ratched voice, denied the petition of an African-American who not only had been living as a model citizen for eight years but who Scott praised for establishing and running a drug rehabilitation clinic.)

As a result, only a trickling 3,000 former felons regained their rights in the eight years of Scott’s governorship. With even that 3,000, Scott and his minions showed bias. According to an investigation by the Palm Beach Post, Democrats and African-Americans were much less likely to have their voting rights restored than Republicans and whites.

That the motivation for Scott’s program was political, there can be no doubt. Darryl Paulson, a professor emeritus of government at the University of South Florida and a fellow at the Heritage Society, admitted Scott’s restrictions were “98 percent due to racial politics.”

Racial and electoral. African-Americans—and Latinos, who represent another large bloc of former felons—are hardly considered prime targets for most Republican candidates.

Some have argued that while this new voting bloc would appear to lean Democratic, two mitigating factors must be considered. The first is that those now eligible to vote might not bother to register, and the second is that the group also consists of more than one-half-million whites, who could just as easily be Republican. As to the first, while there is no way of decisively predicting the future, if elections around the world, from Iraq to Afghanistan to South Africa, have taught us anything, it is that there is little that motivates people to vote more than having once been denied the opportunity. And while there are certainly Republican voters among the white former felons, it would not be unreasonable to assume they might feel some gratitude to the party that pushed for their re-enfranchisement, which might erode some of their affection for the party that opposed it.

Both the Senate and gubernatorial races in 2018 were won by tiny margins, albeit by more than the 537 votes by which George Bush beat Al Gore. Even Hillary Clinton, who was considered wiped out by Donald Trump, lost by only 120,000 votes. With demographics shifting younger and browner, adding potentially hundreds of thousands of Democratic votes could well take Florida off the table.

And Florida, Donald Trump cannot afford to lose.

For all the talk about how Democrats need a viable part-progressive-part-moderate-fire-eating-calming candidate who will appeal to urban voters, suburban voters, rural voters, African-Americans, Hispanics, women, men, motivate young people, not alienate older people, and perhaps be able to shape-shift, few are looking at the 2020 election from the other side. It will be exceptionally difficult for Donald Trump to expand his electoral map—there are virtually no states in which he lost that will be in play for his re-election. If Florida is gone as well, he must repeat the 2016 Pennsylvania-Wisconsin-Michigan trifecta. Loss of any one of these puts him below 270, and each of these states now has a Democratic governor, two of them newly elected. If voters turn out in 2020 in the numbers that they did on Nov. 6, Trump is in serious trouble.

Which leaves Republicans only one alternative. Suppress the vote.

According to the Brennan Center for Justice, “After the 2010 election, state lawmakers nationwide started introducing hundreds of harsh measures making it harder to vote. The new laws range from strict photo ID requirements to early voting cutbacks to registration restrictions.” Of the more than 20 states that initiated such measures, no more than two or three had Democratic governors, although that has since changed in Kansas, Wisconsin, and Illinois, and virtually all had Republican-controlled state legislatures. While gerrymandering is one of the methods of choice for minority Republicans to dominate in state legislatures and the House of Representatives, it has no direct impact on a presidential election. The only thing that works there is denying an eligible voter access to the ballot box.

But, in more bad news for Republican politicians, voter suppression has gotten a lot harder since Jim Crow. Literacy tests, grandfather clauses, poll taxes, work requirements, and even such bizarre contrivances as the “eight-box ballot,” in which a voter had to match his ballot correctly to one of eight obscurely labeled slots, although once affirmed by the Supreme Court, have since been outlawed. Although the Court might approve of the measures currently employed, each of them—photo ID, use-or-lose-it, exact match signature, numbered street address—can be countered. But it will take a concerted state-by-state effort, and one that begins relatively quickly, to prevent the sort of disfranchisement that will tip an otherwise blue state red.

Lawrence Goldstone is the author of three books and numerous articles on Constitutional Law. His first book on the subject for middle and high school students, Unpunished Murder: Massacre at Colfax and the Quest for Justice, has just been published by Scholastic.

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