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Florida Moneyball, 11th Circuit edition

September 13th, 2020, 11:07am by Sam Wang


This week the 11th Circuit issued a shocking opinion curtailing voting rights in Florida. Over half of ex-felons in Florida are now excluded from registering to vote, because first they have to pay fines, fees, and restitution – effectively, a tax on voting. In response to this, we suggest that a solution. Our Redistricting Moneyball approach shows how reformers can make the most of the next three weeks of voter registration – and maximize the leverage of those new Floridian voters for future years.

Over the last few years it’s become clear that federal courts are no longer a suitable venue to pursue voting rights. I am in the middle of reading a terrific upcoming book, The Cycles Of Constitutional Time by Jack Balkin. He says the stance of the two parties towards judicial intervention changes cyclically as they shift in their domination of national politics. In 1980 we began to exit a period that Balkin refers to as the New Deal/Civil Rights era. Anyone who works for voting rights has to adapt to this growing reality. Politics, not the judiciary, will be the main force to save us.

Today’s solution does not require courts.

The intention of Amendment 4 in Florida was to restore voting rights to 1.4 million ex-felons who have completed “all terms of sentence including parole or probation.” The legislature – and now the 11th Circuit – have now thrown a wrench in the machinery, defining completion to include payment of all fines, fees, and restitution. This requirement is worse than it sounds: in many cases it’s not even known how much a person owes. It’s Kafkaesque.

So far this year, only 85,000 ex-felons have registered to vote. But even such a small number could make this population an important force in Florida politics if the effort were focused in the right place. As we’ve written before, Florida is a redistricting Moneyball state (see our Florida Moneyball I, II, and III). Bipartisan governance will be determined by a small number of state legislative races. As it turns out, many of those races are in counties where fines and fees are forgiven.

In Miami-Dade and Palm Beach counties, fines and fees can be separated from the court sentence for purposes of voter registration. According to our Redistricting Moneyball ratings, these counties contain 7 out of the top 17 top districts for voter power in Florida.

  • Miami-Dade County: House districts 105, 115, 118, 119, and 120
  • Palm Beach County: House districts 85 and 89.
  • In 2018, these 7 districts were decided by anywhere 32 to 7586 votes – for a total of fewer than 20,000. So registering even a few thousand people would be fairly consequential.

    Enormous amounts of money are going into Florida politics on account of the presidential election. But the gains from turnout operations and even advertising may be diminishing. In contrast, new registration is a positive-sum game that brings new voters into the system. A smart move would be to put some of that money into ex-felon voter registration efforts in these two counties. Any such efforts would do triple duty: influencing both the presidency state legislation and redistricting of an estimated 29 U.S. House seats for the coming decade.

    One difficulty is identifying exactly the right organization to do this work. I have previously identified a few organizations, but none seem to exactly fit the bill. One possible recommendation would be to support the Florida Rights Restoration Coalition. However, their efforts have resulted in 4,000 registrations and are distributed statewide, so I am somewhat hesitant. A faster and more focused effort would be welcome. I am curious if they – or any other organization in Miami-Dade or Palm Beach counties – are up to the task. Please offer specific suggestions in comments.

    The deadline for voter registration in Florida is October 5th.

    Update: In Miami-Dade County, state Senator Jason Pizzo says he has a group of pro bono attorneys ready to help people register. I do not know if they take donations.

    Tags: 2020 Election · Moneyball · Redistricting

    21 Comments so far ↓

    • 538_Refugee

      Not understanding the legalities, I find it ludicrous that the state legislature even has the authority to alter a statewide voter-approved amendment, let alone the audacity.

      • Pechmerle

        I don’t agree with what the Republican legislature has done, nor the Eleventh Circuit decision upholding it. But – while repugnant – it’s not ludicrous from a legalities perspective. The meaning of “all terms of sentence” is certainly subject to interpretation, and an interpretation that the provision of Amendment 4 includes monetary elements of a sentence is plausible. Indeed, except for the obviously highly discriminatory impact on the poor, inclusion of the monetary terms of the sentence is the more plausible reading of the language of Amendment 4.

        Initiatives submitted to the voters are often weaker drafting than legislation that goes through the legislative process, with hearings, input from communities of interest, etc. The drafters of Amendment 4 apparently didn’t see this issue coming, but could have easily avoided this ugly result with just a few words in the initiative submitted to the voters.

      • Sam Wang

        But it’s also the case that the discriminatory impact is a pretty big deal!

        It would have been better for there to be a clause saying something about fines, fees, and restitution. I am no lawyer, but don’t these things get the tires kicked while they are being drafted?

      • 538_Refugee

        Pechmerle. Thank you for the legal explanation. If the writers of the amendment are available would they have standing as to intent? Sort of like the live version of the Federalist Papers?

      • Froggy

        538_Refugee, careful what you wish for — according to a Harvard Law Review blog, citing the Florida SC, “Floridians for a Fair Democracy, Amendment 4’s sponsor, had stated that the ex-felons would have to repay fines and fees during the initial hearing on whether the amendment was fit for the ballot.”

        If intent is at question, whose intent should we be considering? The person(s) who wrote the amendment language? The sponsor of the amendment? Those who bankrolled the campaign for the amendment? (BTW, that includes the Kochs.) The voters who passed it, in view of what proponents and opponents said about it leading up to the vote? How can a group of millions of voters be said to have a collective “intent” anyway, and how could we possibly determine it?

      • Pechmerle

        Froggy, while I don’t know the specific rules used by the courts in Florida, the interpretive standard where I am – in California where the initiative process has been in use for over 100 years – is clear. An initiative is an act of the voters, not the originators of the petition.

        Thus, it is the intent of the voters that counts. The base point for that is what a reasonable voter would have understood from the language of the initiative proposition. Here (Amendment 4) the language is pretty clear that it includes all elements of a sentence. The language at the end – “including parole or probation” – does not help, because the universal canon of construction is that what follows “including” is illustrative (those are just some examples) not limiting (that those are the only additional terms). The Eleventh Circuit opinion emphasizes plain language of the initiative as the interpretive ground on which their opinion rests. That is disposed of briefly, and the rest of the opinion goes into great depth on whether the result is constitutional.

        If the initiative language is deemed ambiguous, then a court would next look to what the material in the election pamphlet said by way of explaining the proposed amendment. In California that explanation is provided by a nonpartisan, the state legislative analyst office. I don’t know what the election pamphlet said about Amendment 4 in that Florida election. But the Eleventh Circuit majority did not find it necessary to look to such sources for assistance.

        Interestingly, the dissenting opinions do not appear to challenge the plain language interpretation. (Those opinions are much longer than those of the ruling majority, and I haven’t read every word of the dissents.) Instead, their focus is on whether the result is constitutional.

      • Pechmerle

        Froggy, actually I was just now easily able to find the 2018 Florida election information booklet for voters in which the Amendment 4 initiative appeared. I don’t know who in Florida is tasked with providing explanatory material, but clearly not much is expected of them (certainly compared with sometimes lengthy discussions in California booklets). The summary of the legal change is one paragraph, mostly using the language of the Amendment itself, and in no way touches on the interpretive issue that has now become dispositive.

        To paraphrase, “It’s Florida, Jake.”

      • Froggy

        Pechmerle, thanks for your thoughtful comments.

        I too saw the Florida official booklet “explaining” the ballot initiative by just repeating its language — singularly unhelpful.

        I agree that the relevant intent should be that of the voters, but that’s harder to determine than even the often-elusive “legislative intent.”

        Yeah, you’ve got your “universal canon of construction,” but I can respond by citing another canon of construction, noscitur a sociis, under which the questionable meaning of a doubtful word can be derived from its association with other words. Somebody out there compiled a list of contradictory canons of construction, so it’s not unusual for both sides to be able to cite a canon of construction. That’s a good thing, I suppose, in that it keeps lawyers employed.

      • Pechmerle

        Froggy, of course you are right that there are many canons of construction, and some of them contradict others. But the choices judges make among canons of construction are not entirely arbitrary either.

        It is notable that in this very case, both the majority and the dissenters looked first to the canon that one starts with the plain language of the provision under review. If it is plain, one does not go further, to legislative history, or cases interpreting similar words in other statutes, etc., etc.

        The two sets of judges here argued hard about the constitutionality of the statutory requirement to pay fees and fines to have the vote restored. But they did not disagree that Amendment 4 says what it says.

    • gwangung

      Moreover, the Florida officials cannot even give ex-felons an amount that they owe. That alone should have knocked down their arguments.

    • Cactus Flower

      Michael Bloomberg, are you paying attention?

      • ArcticStones

        I would love to see Mike Bloomberg seek the advice of Dr. Wang on how to spend that $ 100 million in Florida!

        Better yet, our country would no doubt be better off if Mr. Bloomberg would follow Dr. Wang’s suggestion to (also) prioritize the registration of new voter and GOTV in the states of Montana, Kansas, Alaska, Iowa, or South Carolina.

        Imagine, say, another total $ 100 million invested in these five states.

        It’s not enough for Biden/Harris to win the White House. It’s imperative that Democrats hold the House and also retake the Senate.

    • Dale L Bratton

      Yes, these things do get the tires kicked. But not to the same extent as in the adversarial process that legislation goes through. Mostly by your friends, who sometimes – as here – don’t think as sharply as your enemies on what can be done with the proposed language.

    • Dave Kliman

      I do hope you get in touch with Bloomberg and his people. Or I hope somebody related to them gets this article in front of him.

    • ArcticStones

      I realize it should not be this way, but I do wonder whether it might be possible for a group of wealthy Americans to declare that they guarantee for all the outstanding fees for Floridians who have served their time – so that each of them can immediately register to vote.

      That would put the onus on the State of Florida to calculate how much each of them owes, and the total, so that Florida can collect its money.

    • Stephen Huegel

      Appreciate very much this site; thanks Dr. W. No good suggestions but asking for advice. I have been sending a lot of money to various races, often following up on ideas found here (E.g., I believe the 2 Democratic Ohio supreme court candidates was briefly mentioned, but I read a LOT, so very well could have been elsewhere) But I am about effectiveness, hence this site. So money to these voter restorations groups, or to Florida state races like HD 15 and 29 which were sorta close in 2018? or to the Democratic electoral redistricting index fund link on this page. Or the PA HDCC since I live in that state, or…? Decisions need to be made with not clearly best options

    • Joe Rich

      My understanding is that the 11th Circuit decision essentially disenfranchises 775,000 ex felons who when registering will have include swearing that they have paid off all fine, penalties etc. To make matters worse, the state has been unable to tell these ex felons how much they owe. And it is very difficult or impossible for the ex felon to get that information on his or her own. This will discourage most ex felons from registering to vote because it is a great risk to swear that you are eligible when you register and subject yourself to prosecution for voter fraud for submitting false statements if the state subsequently determines you have not paid all fines.

      However, there may be an exception for 85,000 ex felons who registered to vote after the constitutional amendment on January 8, 2019 passed but before state law (SB 7066) went into effect on July 1, 2019. The Court decision states at p. 27 that “Eighty-five thousand felons are now registered voters, and each one will remain so unless Florida meets its self-imposed burden of gathering information necessary to prove his ineligibility.” And it appears they will not risk prosecution for fraud if the state subsequently finds they still owe fines and fees because the state law adds the following language to the voter fraud section of the law: “A person may not be charged or convicted for a violation of this section for affirming that he or she has not been convicted of a felony or that, if convicted, he or she has had voting rights restored, if such violation is alleged to have occurred on or after January 8, 2019, but before July 1, 2019.”

      I don’t know if that this interpretation is being accepted in Florida, but the ability of 85,000 ex felons to vote could make a big difference.

      • Pechmerle

        Joe Rich, those 85,000 registrants are indeed “grandfathered in” against prosecution for registering while actually, ultimately, being ineligible under the post-Amendment 4 legislative statute.

        Such safety for only 11% of the ex-felons who would be eligible for restoration without the fees-paid statutory provisions seems cold comfort, though.

      • Pechmerle

        Further, Florida says, OK, they can’t be prosecuted for registering even if they are wrong about their eligibility. But they should not go ahead and Vote until the Division of Elections has screened them for actual eligibility for restoration (finding all their required fees have actually been paid). And Florida admits that the screening will not be completed for years – certainly not by Nov. 3, 2020.

        In these circs, some of those 85,000 will be intimidated out of bothering to vote, on the ground that they are not sure their vote will count. And indeed it is not clear that the votes of any of them who actually do vote will be counted, since they haven’t completed the required screening.

    • Joe Rich

      Pechmerle — Thanks for that clarification. But I am not sure I understand your second comment. If the 85,000 can still be prosecuted for voting, there is no safe harbor for them and they face a risk similar if they vote as other ex felons who will not want to try and register without information about what fines and fees they owe and have paid. Do I have that right — the language in the state law is not clear on this point. When and how did Florida make that clarification?

      Also the following article indicates that the Florida Rights Restoration Coalition (FRRC) which helped get Amendment 4 passed, has paid $4 million to help 4,000 people pay their fines and register and that Michael Jordan and LeBron James donated a total of $600,000 to help this effort. Now that Michael Bloomberg has pledged $100 million to assist in Florida does anyone know if some of this money will be used to assist the FRRC effort?

      https://www.washingtonpost.com/politics/florida-felon-voting/2020/09/11/9a6b5d3a-f45e-11ea-bc45-e5d48ab44b9f_story.html

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