There are both long-term and short-term causes of the mess that is Florida's election laws, but one might point to the late-1990s as a turning point. In 1997, the city of Miami held a mayor election that was corrupted by absentee ballots with forged signatures. Some 36 people were arrested in one of the few proven cases of voter fraud that has occurred in the last thirty years. A Florida judge voided the election results and ordered a do-over.
The state responded by hiring an outside firm tasked with purging felons and deceased voters from the polls. The company, Database Technologies of Boca Raton, drew up a deeply flawed list of about 58,000 names. It contained many Floridians with only misdemeanor offenses, and others with no criminal records at all, sometimes because they had names similar to those of felons. African Americans, who comprised 11 percent of registered voters in the state, made up 44 percent of those targeted for removal due to felony convictions. In some cases even election supervisors appeared on the list. Because of these flaws, local officials urged the state government in Tallahassee to throw out the list. But the state refused. It ordered county supervisors to remove these names from the list of eligible voters prior to the November 2000 elections and as a result, thousands of people showed up to vote and were informed, incorrectly, that they would be unable to cast a ballot. Overseeing this disastrous voter purge was Governor Jeb Bush, brother of the candidate who would suspiciously claim victory in Florida. Thanks to the winner-take-all system, Bush was rewarded with all of Florida’s electoral votes and with them, the presidency, despite the fact that Al Gore won the popular vote at the national level by over 500,000 votes.
Florida is one of only three states in the union (Kentucky and Iowa are the others) that permanently disenfranchises convicted felons, even after they have served parole and probation. Scholars of voting rights have pointed out that this makes the United States uniquely punitive among democracies. Canada’s Supreme Court, for example, has ruled that disenfranchisement laws for criminals are unconstitutional. A man who makes a silly mistake at age 20 that results in a felony—either because he has been caught up with the wrong group of friends, didn’t think before he acted, or for some other reason—may find himself at age 80, after having turned his life around completely as a result of many decades of hard work, remorse, regret, reflection, and discipline, still deprived of one of the key planks of citizenship and civic duty in a democracy. The felony need not have stemmed from a serious crime. Some of the petty crimes that can cost a Floridian the right to vote for life include tampering with someone else’s fishing gear; stealing property worth more than $300; stealing razors; stealing a shopping cart; possessing excess trout, snook, or redfish during the community harvest; killing, injuring, or possessing an alligator egg without the proper authority.
Prior to the 2000 election, between 500,000 and 600,000 ex-felons in Florida were barred from the polls, including at least 139,000 African Americans. Thus, even before any votes were cast, Florida’s history of mass incarceration lent a very significant structural and institutional advantage to the Republican candidate. Given that the margin of victory was only 537 votes, this advantage may have very well been determinative.
We will never know for certain that Gore would have become president had it not been for these racially discriminatory voter purges. This is partly because counterfactuals always contain an element of uncertainty. Perhaps the Bush campaign would have worked even harder to mobilize undecided voters without the purges. Or some other unforeseen factor could have intervened in Bush’s favor.
But the statistical evidence sure is compelling. After the election the NAACP sued the state of Florida for violating the Voting Rights Act (VRA). As a result of the settlement, Database Technologies ran the names of its 2000 purge list using stricter criteria. The revised list turned up more than 12,000 voters who were mistakenly labeled as felons and blocked from voting. Edward Hailes, acting general counsel of the US Civil Rights Commission, knew that if 44% (over 5200) of the 12,000 purged voters were African American and that African Americans typically vote for Democrats 80 to 90% of the time, then over 4700 black Democrats could have been denied the franchise on Election Day. 4700 is nearly nine times greater than Bush's margin of victory.
To add insult to injury, Americans have been deprived of the confidence and certainty that their president was legitimately elected because the Bush v. Gore Supreme Court decision of December 2000 halted the statewide recount then under way. Bush v. Gore was less a carefully reasoned verdict grounded in august constitutional principles and more a hardball tactic in which the Court’s conservative members found themselves in the unprecedented position of choosing the person who would name their successors. It was not entirely clear that the Court needed to take the case at all for there were no major constitutional issues at stake. In addition, the Court stunned observers and pundits by declaring that its decision applied only in this particular circumstance and thus, would not set a precedent for later decisions.
The Court used the Fourteenth Amendment's equal protection clause to stop the recount. If there was going to be a recount, the Court reasoned, the state of Florida needed to recount votes in all of its counties, not just the ones flagged by the Gore campaign. But the Court also addressed the Electoral Count Act of 1887, a statute passed during the Gilded Age as a response to another disputed election in which the person who became president, Rutherford B. Hayes, lost the popular vote. And here again the Court's interpretation was questionable. In the Court's view, the legislation meant that if a state wished to have its electoral votes counted, it needed to wrap up any recounts by a deadline of December 12. Left unclear by the vague wording of the legislation, however, was what precisely should happen if a state did not resolve any ballot-counting issues by the deadline and whether the Supreme Court, rather than Congress or the states, should be intervening in these types of disputes at all.
Several newspapers and accounting firms have concluded that in many scenarios, depending on how strictly one counts the disputed ballots, Bush still would have won without the Supreme Court’s help, though these same studies suggest that more voters went to the polls in Florida intending to vote for Gore.
When one adds the hanging chads, butterfly ballots, Jewish American voters who mistakenly cast votes for third party candidate, Pat Buchanan, and the Brooks Brothers Riot to the mix of discriminatory felon disenfranchisement laws and legally dubious voter purges, it is hard not to come away with the conclusion that Florida was an unmitigated disaster. The redux with Trump's victory in Florida sixteen years later forces liberals and progressives to constantly relive a traumatic experience that has set the nation on a downward spiral of destruction from which it may never recover. One wonders whether all the horrifying scenarios that have transpired since 2000—9/11, the disastrous, wasteful, and unnecessary Iraq War, domestic surveillance, the metastasis of the national security state, the torture at Abu Ghraib, the abuse of human rights at Guantanamo Bay, the botched and deadly response to Hurricane Katrina—could have been avoided had the Supreme Court not intervened in such a way. Since many in the historical profession like to emphasize the inherent contingency in watershed moments like the Florida election, one cannot help but wonder in agony whether events could have turned out much differently, and much more promisingly.
Journalist Ari Berman, author of Give Us the Ballot, posited that the Florida election debacle had other long-term consequences in that it led to a new wave of disenfranchisement efforts. Republicans realized that in close elections even small manipulations in the voter rolls could change the outcome. Bush appointed two justices to the Supreme Court—John Roberts and Samuel Alito—who both voted to strike down Section 5 of the VRA in the Shelby County decision.
A report published by the Civil Rights Commission in 2001 accused then-Governor Jeb Bush and his secretary of state, Katherine Harris, of “gross dereliction” of duty, adding that they chose to ignore mounting evidence of problems. One passage stated: “After carefully and fully examining all the evidence, the Commission found a strong basis for concluding that violations of Section 2 of the Voting Rights Act occurred in Florida.” But instead of investigating these violations, the Bush administration sought to politicize the Justice Department and hype the infinitesimal problem of voter fraud.
Since the Florida fiasco, conservatives have continued to wield power, but without the legitimacy of majority rule. A court of conservatives hard-liners anointed a conservative presidential candidate who did not win the most votes, who then went on to appoint more conservatives to the courts who then ruled in ways that helped conservative voters, thus cementing, perpetuating, and prolonging conservative rule. Citizens’ United (money in politics), Janus (kneecapping labor unions), Shelby (undermining the Voting Rights Act), and other cases, have only reinforced this dynamic. So what is it that ultimately keeps Republicans in power despite their tenuous claims to majority support? An irredeemably partisan Supreme Court? Felon disenfranchisement laws? Voter purges? The War on Drugs? The answer is all of the above.
The legal precedent for Florida’s felon disenfranchisement laws can be found in federal and state constitutions. Under the “penalty clause” of the 14th Amendment to the US Constitution, states that disenfranchised large segments of the electorate would lose some of their representation in the House. The Radical Republicans then spearheading Reconstruction wanted to preempt any attempt by white southerners to concoct loopholes that would disenfranchise African American voters. How prescient they were! Crucially, there was some important fine print. The amendment carved out an exception to allow for disenfranchisement for those who had participated in a rebellion or committed a crime. The word “rebellion” was most likely a reference to the Civil War. Hundreds of thousands of Union soldiers, including an estimated 150,000-200,000 black troops, had fought tirelessly, and even died, to put down a treasonous insurrection and Radical Republicans were understandably outraged by the non-trivial amount of ex-Confederates who voted in elections and even ascended to elected office in 1865 and 1866. Disenfranchising ex-Confederates was okay with them. Despite the fact that many southern states would later enact loopholes that disenfranchised African Americans for nearly a century, they never lost any representation in the House; this part of the penalty clause was never enforced.
Yet in Richardson v. Ramirez (1974), the Supreme Court addressed the other part of the penalty clause, upholding felon disenfranchisement laws as constitutional. History professors can shake their heads at the realization that there is yet another irony in the 14th Amendment that has resulted in inequality. U.S. History textbooks commonly state that the High Court during the Gilded Age, paradoxically, interpreted the Fourteenth Amendment to protect the rights of corporations much more often than the civil rights of African Americans. With the Richardson decision, it became clear once again that an amendment originally designed to ensure citizenship and civil rights for the formerly enslaved was now making it more difficult for African Americans to vote in the twenty-first century!
Felony disenfranchisement laws were also written into Florida’s various territorial and state constitutions. The 1838 constitution of the Florida Territory contained a felon disenfranchisement provision, as did the state's 1868 constitution. Today’s felon disenfranchisement law in Florida is a cruel vestige of the era when white southern Democrats were enacting poll taxes, literacy tests, and grandfather clauses—and at the same time either actively promoting or remaining apathetic about the violence and intimidation that came from domestic terrorist groups like the KKK—in order to suppress black participation in the voting process.
There were substantive gains for African Americans during the Civil Rights Movement to be sure, but unfortunately, the War on Drugs has only worsened the racial disparities caused by felon disenfranchisement laws. As Michelle Alexander persuasively argued in The New Jim Crow, there came a time in the 1970s when it was no longer acceptable for American politicians to state publicly that they opposed civil rights. Instead they used coded language like “law and order,” “tough on crime,” “forced busing,” or “states’ rights,” all of which were central to Nixon’s Southern Strategy and the white resentment that did much to undermine the New Deal order. For Alexander, mass incarceration, voter purges, and voter ID laws, are more insidious—though no less pernicious—manifestations of the original Jim Crow.
Statistics suggest that there is an empirical basis to Alexander’s arguments. The population of the United States in 1976 was approximately 218 million. It was 309 million in 2010, an increase of 42%. Yet in the same 34-year period, according to the Sentencing Project, the number of disenfranchised felons jumped from 1.17 million to 5.85 million, an increase of over 400%. As of 2016, the total number of disenfranchised felons in the country stands at 6.1 million. Over 7.4 percent (about 1 in 13) of the adult African American population is disenfranchised compared to 1.8 percent (about 1 in 55) of the non-African American population.
It is undeniable that the War on Drugs has played a major role in creating these outlandishly large figures. Florida’s prison population ballooned during the tough-on-crime 1980s and 1990s, with African Americans disproportionately locked up. A state-by-state analysis in 2009 indicated that Florida more severely and more routinely punishes minor marijuana crimes. If one is caught possessing more than 20 grams of marijuana, one can be charged with a felony punishable by a maximum sentence of five years in prison and a maximum fine of $5,000. Of the 6.1 million disenfranchised felons in the US, an estimated 1.5-1.7 million live in Florida, the overwhelming majority of whom have already completed their sentences. Florida has nearly 3 times as many disenfranchised ex-felons as Texas, the next highest state. So although less than 7% of the nation’s population lived in Florida in 2016, the state was home to almost 27% of the nation’s disenfranchised felons.
Much of the degree to which civil rights are restored to ex-felons in Florida depends on who happens to be governor. The Supreme Court has ruled that states cannot automatically restore voting rights because this power has historically fell under the governor’s pardoning power, which is almost absolute. Bush approved just one-fifth of the 385,522 applications for voting-rights restoration submitted during his eight years in office. His successor, Charlie Crist, a Republican-turned-Independent-turned-Democrat, was much more lenient. In 2008, more than 85,000 ex-offenders had their rights restored—more than during Bush’s entire tenure. But even Crist had to contend with a reduced staff due to budget cuts, making it more difficult to work through the tremendous backlog. In his final year in office, fewer than 6,000 people had their rights restored.
The record under Republican Rick Scott has been nothing less than abysmal. Restorations nearly ground to a halt with just 78 applications approved in 2011. The clemency board meets only four times per year and hears less than 100 cases every time it meets. This was because Scott implemented new rules that effectively slowed down the process of restoration. Noting that Scott was more likely to pardon applicants with conservative views, a federal judge ruled that Scott’s plans were arbitrary and unconstitutional for violating free speech and equal protection.
The consequences of leaving voting laws up to the individual states are such that if a political party gains full control of both legislative houses and the governor’s mansion (sometimes called the trifecta), and that political party decides that less people voting is critical to maintaining power, that party has a lot of options of making it more difficult to vote. And this is what continues to happen in Florida election cycle after election cycle despite all the negative publicity and empty promises of reform. After winning election during the “Tea Party” wave of 2010, Governor Scott launched a voter purge in 2012 known as “Project Integrity.” Ostensibly designed to remove non-citizens from the rolls, Project Integrity was panned by critics as a thinly veiled attempt to disenfranchise a disproportionate share of Hispanics and African Americans. Florida officials said they had drawn up an initial list of 182,000 potential non-citizens. But that number was reduced to fewer than 200 after election officials acknowledged errors on the original list. In identifying potential non-citizens, Florida officials sent their information to county election supervisors who then mailed letters to voters requesting proof they were U.S. citizens. If no response was received, the voter was dropped from the rolls.
A voter who believes that s/he is entitled to vote but has been mistakenly removed the polls by these purges creates an administrative headache on Election Day. It contributes to longer lines. And studies show that longer wait times are more likely to occur in counties with large Hispanic populations. But this was not the only destructive weapon in Scott’s quiver. The governor also cut early voting prior to the 2012 election. And unfortunately, there is no requirement in Florida for delegating a minimum amount of voting machines, poll workers, and money to a given precinct. South Carolina, for example, requires that there should be 1 poll worker for every 250 voters. It should come as no surprise that a Brennan Center for Justice report found in its study of South Carolina, Maryland, and Florida, that there were fewer voting machines for minority precincts. Of the three states, only Florida had a statewide and systematic problem.
Reports of long lines for voting in Florida on Election Day 2012 were pervasive, especially in the poor parts of town or precincts near universities (not coincidentally both of these constituencies tend to vote for Democrats). To be fair, the anecdotal reports of six and seven hour waits, while widely reported, were far from typical. Most people voted in 15 minutes or less. And while the governor and state legislature exert considerable control over the voting laws of Florida, local officials also maintain some autonomy. Minority precincts are often managed by minority officials who are tasked with providing voting machines. Since it is unlikely that most Hispanic or African American local officials would deliberately suppress voting rights of Hispanic or African American voters, part of the explanation for long lines may lie in the failure to prepare for an unexpected surge of voters on Election Day.
On the other hand, the average wait time of 23 minutes for an African American voter in Florida, while not excessively burdensome, was almost twice the average wait time for a white voter in 2012. One would think that after the calamity of 2000, Florida would work to redeem itself by developing a fair and efficient voting system. But a New York Time study showed that Florida ranked dead last in terms of wait time for the 2012 election. The significance of the long lines is that some voters will invariably give up. They see the long lines and then don’t follow through. This would strike most people as unfair but Republicans are practically counting on discouraged voters because they know that confusion at the polls may help them win. On election night in 2012, an estimated 200,000-215,000 Florida voters gave up and went home because they could not wait any longer in line. Reporting by the Orlando Sentinel suggests that the majority were Obama voters, so had they been able to cast a ballot, Obama would have increased his margin of victory over Romney in Florida by about 15,000 votes.
8-hour wait times, while rare, are inexcusable in the world’s wealthiest country and one that chauvinistically and arrogantly waves the stars and stripes at every moment and which has ostensibly fought countless wars on behalf of freedom and democracy. Martin Luther King’s searing critique of the Vietnam War, eloquently and powerfully echoing W. E. B. Du Bois and other civil rights activists of earlier generations, still rings true today: it is tough to ask an African American to fight overseas for freedom abroad when he does not have freedom at home at the ballot box.
Tying the franchise to mass incarceration is bound to create racial inequities because the criminal justice system disproportionately targets people of color. We know from the work of Michelle Alexander that whites, Asian Americans, Hispanics, and African Americans all consume drugs at roughly the same rate. For each group about 8 to 12% of the population consumes drugs. Yet the US prison population, which is the largest in the world, contains a disproportionately high number of blacks and Hispanics. So when Florida takes away the vote based on a felony, it violates the principle of equality under the law and harms constituencies that are likely to vote for Democrats.
In November 2018, Florida voters had a chance to begin to rectify this injustice. A proposed ballot initiative, Amendment 4, would provide for the restoration of voting rights after ex-felons had served their time and probation, so long as the crime they committed was not a sex crime. To become law, the amendment needed a supermajority of 60% to pass. Surprisingly, it got 65%. Sensing the erosion of their power, Florida Republicans dragged their heels and erected new obstacles by passing a law requiring that before voting, ex-felons must pay all of the court fees from their sentencing or have them be excused by a judge. Democrats have argued that this is essentially a poll tax since felons may be fined up to $500,000 for their crime and then saddled with a vast array of administrative fees. Unfortunately for them, Republicans control the state legislature, governor’s mansion, and Supreme Court of Florida so it is entirely possible that the GOP will end up thwarting the will of a clear majority of the voters. The cunning and duplicity of Republican lawmakers who design tricks to prevent people from voting knows no bounds. If the past two decades are any guide, we won’t be able to count on Republicans prioritizing fairness and equity with the franchise. If they did, a good many of them would be out of a job.