IN AMERICA’S hierarchy of elections, the presidentials sit squarely at the top, drawing the most voters and interest. Next are the mid-terms. Off-year elections come last. On November 5th, three states will choose governors, two others will elect state legislators and some districts will elect mayors or replacement congressmen. In most of America, a tiny share of the electorate will trudge dutifully to the polls to choose school-board officials and vote on ballot or tax questions. But Marq Mitchell, a 29-year-old Floridian, can barely contain his glee about this autumn’s election—it will mark the first time he votes.
Mr Mitchell grew up a ward of the state; his father was absent, his mother addicted and his grandmother died when he was in his early teens. By the age of 22 he had two felony convictions, one for trying to escape from a juvenile-detention centre, the other for fighting. But he eventually found his feet. After spending several years in a series of mundane jobs he cashed in his savings to start Chainless Change, a charity to help ex-felons adjust to civilian life.
Yet as admirable as Mr Mitchell’s life has been recently, under Florida law he was ineligible to vote. Florida permanently disenfranchised felons—which just three other states do—from its constitution of 1868 until last year, when voters overwhelmingly approved a constitutional amendment restoring the voting rights of ex-felons, other than those convicted of murder and sexual offences. But earlier this year, Florida’s legislature passed a law that, depending on your view, either clarified or, in effect, invalidated this change. It stated that felons must pay all fines, fees and restitution before they can vote.
That may sound reasonable enough. If you embezzled money from your employer, your sentence should include restitution. But jurisdictions in Florida impose a dizzying array of fees on convicts designed to raise revenue for the state: a $50 “application fee” for a public defender, $100 each for the public defender and the prosecutor’s “costs”, and various crime-specific surcharges. These can quickly add up—particularly for poor felons. When they cannot pay, collection agents step in; they can assess additional fines of up to 40% of the amount owed.
Jurisdictions often do not communicate with each other, or those whom they fine. Mr Mitchell found out he owed $4,000 only when he applied for an occupational licence. And many ex-felons owe more than they can ever repay. Karen Leicht, for instance, served 30 months in prison for her part, which she says was unwitting, in a fraud scheme. She pleaded guilty and helped the prosecution, but she still owes $59m in restitution.
The amendment itself did not mention financial restitution; it simply stated that “any disqualification from voting arising from a felony conviction shall terminate…upon completion of all terms of sentence including parole or probation.” But Jeff Brandes, a Republican senator, argued that to enact the law, “we needed to define what ‘all terms’ meant.”
He points to a letter written by the American Civil Liberties Union, a watchdog, and other backers of the change, acknowledging that “all terms…includes any period of incarceration, probation, parole and financial obligations imposed as part of an individual’s sentence.” He also notes that in oral arguments in 2017, a lawyer in favour of the amendment agreed when a judge asked if all terms “would also include the payment of any fines.”
The amendment’s backers sued, arguing that the new law amounted to a poll tax, which is unconstitutional. On October 18th a federal court in Tallahassee enjoined Florida from imposing the law against the 17 plaintiffs named in the case, including Mr Mitchell. The ruling did not reach a final decision on the law’s constitutionality; that is for another federal court to decide, in a trial scheduled to start in April 2020. The legislature may soften the law before then; the ruling noted that “plaintiffs have a constitutional right to vote so long as the state’s only reason for denying the vote is failure to pay an amount the plaintiff is genuinely unable to pay.”■