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.
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.
- 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.