February 09, 2020 HUMAN RIGHTS

Fines, Fees, and the Right to Vote

by Malia Brink

Voting is the core right of a democracy—the way in which the voice of each citizen finds its way into government. Efforts to keep someone from voting should therefore be of paramount concern. In the Jim Crow era, states enacted a number of laws to impede black people from voting, including residency and property restrictions, literacy tests, and poll taxes. The effort was enormously effective and only with the passage of the Voting Rights Act of 1965 was the use of these discriminatory restrictions banned.

It should be unfathomable to think that in 2020 we would still be fighting the same types of restrictions that impinged the right to vote during the Jim Crow era. But in several states, a form of poll tax persists, banning people who have failed to pay fines and fees from voting. The ABA has taken a stand against conditioning the right to vote on payment of fines and fees and, recently, efforts to abolish these discriminatory limitations on voting have gotten traction.

A (Ridiculously) Brief History of Voting Rights

The Fifteenth Amendment to the United States Constitution provides, “The right of citizens of the United States to vote shall not be denied or abridged by the United States or any State on account of race, color, or previous condition of servitude.” According to the Constitutional Rights Foundation, when the amendment was ratified in 1870, more than 500,000 black men became voters (Race and Voting in the Segregated South). In Mississippi, “former slaves made up more than half of [the] state’s population.” During the next few elections, the impact of these voters was extraordinary. Mississippi elected the first two black U.S. senators: Hiram Rhodes Revels in 1870 and Blanche Bruce in 1875. A number of other black officials were elected throughout the state of Mississippi, including Alexander K. Davis, who served as lieutenant governor of Mississippi from 1871–76. Similar milestones were occurring throughout the South. In 1868, Louisiana elected Oscar Dunn, the first black lieutenant governor, and then, in 1872, Louisiana elected P.B.S. Pinchback, the first black governor.

This sudden and impactful progress gave way to an equally impactful backlash. Federal troops withdrew from the South in 1877, ending Reconstruction. Reactionary forces, including the Ku Klux Klan, became more active, and throughout the mid-1870s, political power in the South switched from Republicans to Democrats, who began passing laws to institute segregation and limit the voting power of black citizens.

In 1890, Mississippi held a state constitutional convention. The president of the convention declared its purpose plainly: “We came here to exclude the Negro” (Constitutional Rights Foundation, Race and Voting in the Segregated South). Because they could not ban black citizens from voting, they devised less direct restrictions that would have the same impact. One was the poll tax, which voters were required to pay for the two years prior to the election in which they sought to vote. Eventually, 11 southern states would impose a form of poll tax on residents. Another restriction was the literacy test, which required voters to read a section of the state constitution and explain it to the county clerk. The literacy test automatically excluded the approximately “60 percent of voting-age black men (most of them ex-slaves) who could not read.” (Id.)

These voter suppression efforts were incredibly effective. By 1890, the number of black voters registered in Mississippi fell below 9,000 or roughly 6 percent of voting-age black residents. (Kelly Phillips Erb, “For Election Day, A History of the Poll Tax in America,” Forbes, Nov. 5, 2018.) “In Louisiana, where more than 130,000 black voters had been registered in 1896, the number plummeted to 1,342 by 1904.” (Id.)

Despite their harmful impacts, courts largely upheld these restrictions. In Breedlove v. Suttles, 302 U.S. 277 (1937), the U.S. Supreme Court upheld a Georgia poll tax stating, “payment of poll taxes as a perquisite of voting is not to deny any privilege or immunity protected by the Fourteenth Amendment . . . the state may condition suffrage as it deems appropriate.” Similarly, in Lassiter v. Northampton County Board of Elections, 360 U.S. 45 (1959), the Court held that because literacy tests were applied equally to all citizens regardless of race, they were not discriminatory.

It was not until the 1960s that these laws drew effective opposition. In 1964, the Twenty-Fourth Amendment was ratified, providing “The right of the citizens of the United States to vote in any primary or other election . . . shall not be denied or abridged by the United States or any state by reason of failure to pay any poll tax or other tax.” Then, the Voting Rights Act of 1965 banned the use of literacy tests, established federal oversight of voter registration in key areas where minority voter registration was low, and authorized federal investigations into the use of poll taxes.

These protections had significant impact on black voter registration. In Mississippi, black voter registration “increased from a mere 6.7 percent in 1965 to 59.8 percent in 1967.” (German Lopez, “How the Voting Rights Act Transformed Black Voting Rights in the South, In One Chart,” Vox, Aug. 6, 2015.) Black voter registration continued to rise over time. By 2012, “Mississippi’s gap even reversed: 90.2 percent of black voting-age residents registered to vote, compared with 82.4 percent of non-Hispanic white voting age people” (Erb, For Election Day). 

President Lyndon B. Johnson signs the Voting Rights Act of 1965 with Martin Luther King Jr. present.

President Lyndon B. Johnson signs the Voting Rights Act of 1965 with Martin Luther King Jr. present.

The More Things Change, the More They Stay the Same

Even with the protections established in the civil rights era, extraordinary numbers of minority voters, particularly black men, are barred from voting today. A report from 1998 estimated that 3.9 million Americans (2 percent of the eligible voting population) could not vote because of laws disenfranchising those with felony convictions. (Human Rights Watch and the Sentencing Project, Losing the Vote: The Impact of Felony Disenfranchisement Laws in the United States, 1998.) Of that 3.9 million, 1.4 million were black men, which represented at that time 13 percent of all adult black men and reflected “a rate of disenfranchisement that is seven times the national average” (Id. at Chapter III). By 2016, the number of citizens barred from voting due to past convictions had risen to more than 6 million, which is 2.5 percent of the population or 1 in every 40 adults, despite efforts to reform disenfranchisement laws. (The Sentencing Project, 6 Million Lost Voters: State-Level Estimates of Felony Disenfranchisement, 2016, Oct. 2016.) One in 13 black voters, men and women, were disenfranchised.

Wealth-based Disenfranchisement

Stunningly, most of those disenfranchised in 2016, more than 3 million people, had completed their sentence. (Id. at Figure 1.) Provisions for re-enfranchisement vary widely across states. A number of states restore voting rights when an individual leaves prison. Others restore voting rights after an individual completes probation or parole. In many states, however, voting rights cannot be restored until someone has not only been released from incarceration and/or completed probation and parole, but also paid all fines and fees resulting from their criminal case. A July 2019 report by the Campaign Legal Center and Georgetown Law’s Civil Rights Clinic (Can’t Pay, Can’t Vote: A National Survey of the Modern Poll Tax) concluded that at least “30 states continue to disenfranchise some of their citizens based on wealth.”

According to this report:

  • 5 states explicitly require payment of all fines and fees before restoration of voting rights: Alabama, Arizona, Arkansas, Florida, and Tennessee.
  • 3 states explicitly require payment of some fines and fees before restoration of voting rights: Connecticut, Georgia, and Washington.
  • 2 states, Iowa and Kentucky, have permanent disenfranchisement but require payment of fines and fees before an individual can seek to restore voting rights through the pardon process.
  • 20 states “implicitly require payment of fines and fees as a prerequisite to voting rights restoration by requiring completion of parole and/or probation.”

The fines and fees that individuals are required to pay following even a minor criminal conviction can be enormous. Incarcerated individuals are often charged for their time in prison, for room and board, instructive and rehabilitation programs, and even medical costs. For many of these items, prisoners are charged a premium, sometimes two or three times retail cost. One study calculated that an average returning citizen owed over $13,000 upon release (Can’t Pay, Can’t Vote at 20). A letter in the Washington Post in 2018 noted that an ex-offender released in Virginia owed “more than $30,000 to the state for court costs and related fees, along with interest accrued during her years in prison when she had no way to pay anything.” (Nancy McIntyre, “The Prisoners Who Leave Prison in Debt to the State,” The Washington Post, Sept. 10, 2018.) In total, an estimated 10 million people owe more than $50 billion in fines and fees imposed as a result of criminal convictions (Can’t Pay, Can’t Vote at 18).

In short, in 30 states individuals are being denied the right to vote because they have not yet paid criminal justice debt. And there is every reason to believe that they have not repaid this debt because they simply cannot afford to pay.

An analysis by the Prison Policy Initiative shows that “formerly incarcerated people are unemployed at a rate of over 27 percent—higher than the total U.S. unemployment rate during any historical period, including the Great Depression.” (Out of Prison & Out of Work: Unemployment among Formerly Incarcerated People.) The unemployment rate is highest for formerly incarcerated black men (43.6 percent) and formerly incarcerated black women (35.2 percent). Moreover, when formerly incarcerated individuals find work, it is most often low-paying work. In the first year following release, only 20 percent of released prisoners earn more than $15,000 (Work and Opportunity Before and After Incarceration, The Brookings Institution, at 7). The group most likely to be employed full time is white men, whereas, among those who find work, black women and Hispanic women are most likely to be relegated to part-time work. (Out of Prison & Out of Work at Figure 3). This data strongly suggests that released individuals are not capable of repaying court and prison fines and fees, and that the least likely to be able to repay are more commonly from minority populations. Accordingly, tying the right to vote to repayment will continue discriminatory disenfranchisement.

Efforts to Combat Financial Limitations on Voting—Florida

In 2016, Florida was the state with the greatest number of disenfranchised voters, accounting “for more than a quarter (27 percent) of the disenfranchised population nationally” (6 Million Lost Voters at 3). Over 1.4 million people disenfranchised in Florida were post-sentence, and 21 percent of the individuals disenfranchised in Florida were black (as compared to only 16 percent of Florida’s overall population). (Id.)

Following a period of changes in the ability of people with felony convictions to have voting rights restored and lawsuits over those changes, a coalition proposed an amendment to the Florida Constitution to allow automatic restoration of voting rights following completion of “all terms of their sentence including probation and parole.” The proposed amendment received a sufficient number of petition signatures to be placed on the 2018 ballot in Florida. Amendment 4 passed with 64.55 percent of the vote, over 5 million people voting in favor of the amendment.

Following approval of the amendment, nearly 1.4 million disenfranchised people became eligible for restoration. However, state lawmakers introduced legislation to require that an individual first pay all fines and fees owed to the courts before becoming eligible to vote. They called the legislation a clarification of what it meant to complete a sentence. Governor DeSantis signed the bill into law on June 14, 2019.

Civil rights groups immediately filed lawsuits on behalf of more than 15 individuals who lacked the ability to pay outstanding fines and fees but were otherwise eligible to vote under Amendment 4. These lawsuits were consolidated into a single case. Evidence presented in the case suggested that roughly four in five individuals who had otherwise completed their sentences, including probation and parole, still had unpaid fines and fees. In other words, the new legislation would continue the disenfranchisement of the vast majority of the people the amendment was intended to re-enfranchise. On October 18, 2019, a federal judge entered a preliminary injunction, blocking the law from applying to any indigent individual.

While this case continues to wind its way through the federal courts, another case was brought before the Florida Supreme Court regarding the meaning of the language regarding completion of a sentence in the original amendment. In January, the Florida Supreme Court held that completion of a sentence includes payment of all fines and fees related to the conviction. The federal lawsuits continue to assert that this interpretation is unconstitutional.

Some of the potential voters who would be impacted by whether payment of fines and fees is a prerequisite to voting were profiled in Can’t Pay, Can’t Vote.

They include:

  • Edna Kathleen Lewis, who has completed her probation following a sentence for identify theft and theft of property but still has outstanding fines and fees. She lives with her husband, a disabled veteran, on Social Security and disability benefits. She has been paying more than $100/month on her fines and fees for more than four years but will need to do so for more than another 35 years before they are fully paid off.
  • Bonnie Raysor, a recovering opioid addict who was convicted of drug offenses and served 18 months in prison. Although she has completed her sentence, she has more than $4,000 in outstanding fines and fees. She works and pays $30/month, while also paying her mortgage and other expenses and helping to support her daughter, a full-time student. It will be 2031 before she is able to vote if she continues on her current payment plan.

The situation for these potential voters and everyone else in Florida who has completed their sentences but may have fines and fees is far from clear. A recent article in Reuters noted that there is no consolidated database of fines and fees owed, making it difficult for individuals, as well as county clerks, to determine who can register if the law stands. (Linda So, “Restoring Felon Voting Rights a ‘Mess’ in Battleground Florida,” Oct. 7, 2019.) The deadline for registering to vote in Florida’s 2020 presidential primary is February 18, 2020.

ABA Efforts to Combat Financial Limitations on Voting

The Florida saga brought much needed attention to efforts to condition the right to vote on the payment of court fines and fees. While the debate over Amendment 4 was in full swing in Florida in 2018, the ABA House of Delegates adopted the Ten Guidelines of Court Fines and Fees. Guideline 5 specifically provides that “Failure to pay court fines and fees should never result in the deprivation of fundamental rights, including the right to vote.” The ABA’s stand on this issue is directly tied to viewing this type of restriction on voting as a poll tax that disproportionately harms people of color. The commentary to Guideline 5 observes, “court fines and fees can effectively serve as a poll tax,” where payment of such fines and fees is required before an individual is permitted to vote.

Following the publicity surrounding the Florida amendment, legislation, and lawsuit, it is likely that other states will seek to address the issue of limitations on voting rights based on payment of fines and fees. Indeed, it is likely that federal legislation will be introduced to prohibit the conditioning of the right to vote on payment of court fines and fees. When this occurs, the ABA has the policy in place to support efforts to restore voting rights to individuals who have completed their sentences but simply have not yet found the means to pay their debt.

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Malia Brink

Serves as Counsel for Indigent Defense to the ABA Standing Committee on Legal Aid and Indigent Defendants. She has been working on criminal justice reform issues for more than 15 years.