By Linda So
TAMPA, Florida, Oct 7 (Reuters) - Clifford Tyson wants to help choose America’s next president. But the Florida resident fears his vote might return him to jail.
Tyson, 63, owes court-ordered fines and fees for three felony convictions, one for robbery, two for theft, all decades old. Under a Florida law that went into effect July 1, he must pay those penalties before casting a ballot or risk being prosecuted for voter fraud.
Tyson searched court records, first on his own, then with the help of a nonprofit legal advocacy group. They say that because Florida has no comprehensive system for tracking such fines, the documents don’t make clear what he owes. The records, viewed by Reuters, show potential sums ranging from $846 to a couple thousand dollars related to crimes he committed in the late 1970s and 1990s. Tyson says he won’t risk voting until Florida authorities can tell him for sure.
“Until there is clarity, as much as I want to vote, I won’t do it,” Tyson said.
The Tampa pastor is now a plaintiff in a lawsuit challenging the payments law, which was crafted by Florida’s Republican-controlled legislature and signed by Governor Ron DeSantis, also a Republican. The law came just months after Floridians approved a ballot initiative restoring voting rights to more than 1 million felons who have completed their sentences; that change to the state’s Constitution created a potentially huge new crop of voters in a critical battleground state ahead of the 2020 presidential election.
The lawsuit, filed in June by the American Civil Liberties Union (ACLU), the Brennan Center for Justice, and the National Association for the Advancement of Colored People (NAACP) Legal Defense and Educational Fund, alleges the fees requirement defies the will of Florida voters and amounts to an illegal poll tax on newly enfranchised Florida felons, many of them minorities.
But another argument is shaping up to be central to the plaintiffs’ case: Florida has no consolidated system for determining what felons owe or certifying that they have paid up. It’s a situation that ex-offenders say makes it virtually impossible for them to prove they are eligible to vote.
Those claims are bolstered by state election officials who say they can’t calculate what felons owe, either, according to a Reuters review of 7 depositions, emails and other internal correspondence from voting administrators submitted by plaintiffs’ attorneys as part of the lawsuit.
Florida has no centralized database where records of court-ordered fines and fees - and any payments of those penalties - are stored, election and court officials say. To get that information, felons typically must search documents in courts where they were convicted, be they federal or state, inside or outside Florida. Records have been found to be incomplete, contradictory or missing, plaintiffs’ attorneys say.
With the Feb. 18 deadline to register for the state’s 2020 presidential primary approaching, the issue is taking on urgency. An estimated 436,000 felons have fees to settle before they can vote, according to a study by University of Florida political scientist Daniel Smith, an expert witness for the ACLU. The study was based on court data and Department of Corrections records.
The stakes are high. Florida commands 29 of the 538 electoral votes that are used under the U.S. Electoral College system to select the American president. In Florida and most other states, the candidate who places first in the popular vote – even if just by a hair – wins all the electoral votes. Florida has a history of tight elections and contested outcomes.
Plaintiffs’ attorneys say Florida has shifted all responsibility for compliance with the new payments law to ex-offenders, who risk prosecution if they get it wrong. The state contends the legislature merely implemented the constitutional amendment as it was written on the ballot.
The legislation, known as SB 7066, “sows seeds of confusion,” said Leah Aden, deputy director of litigation at the NAACP Legal Defense and Educational Fund. “It will chill participation.”
Some of the state’s 67 county elections supervisors - the public servants who ultimately decide which felons get culled from the rolls and which can stay - expressed concern in their depositions and to Reuters about making mistakes that could invite challenges to future election results.
Five testified recently in the lawsuit that they lack the manpower to do detailed searches or have no way of ascertaining for certain whether ex-offenders have met their financial obligations under SB 7066.
They said they are relying on Florida’s Department of State, which manages the state’s elections, to help them determine who is ineligible. That agency is developing a procedure to send counties regularly updated lists of felons on their rolls who have unpaid fines and fees, but it has no timetable as to when it will be ready, said Maria Matthews, the director of the Department of State’s Division of Elections, in a September deposition. Matthews did not respond to multiple requests for comment.
For now, the agency is providing counties only with names of Florida felons who are incarcerated, and thus ineligible to vote, Toshia Brown, chief of the department’s Voter Registration Services, said in an August deposition. Brown did not respond to multiple requests for comment.
An early list sent to Leon County in Florida’s Panhandle region appeared to contain inaccuracies, Deputy Elections Supervisor Christopher Moore said in a July email to his staff, which was viewed by Reuters. Moore's office researched a June list provided by the Department of State containing 66 names of allegedly incarcerated felons, but could not determine whether felony convictions existed for 24 of them – 36% of the total - emails exchanged between Moore and his staff show.
“This process is not off to a very accurate start and we are playing with people’s eligibility to vote,” Moore said in the July email. Moore told Reuters that subsequent data his office has received from the Department of State has gotten better.
Sarah Revell, a spokeswoman for the agency, said the Department of State reviews information from a variety of sources, makes an initial determination on a voter’s eligibility, then passes that along to county supervisors. She said the agency is working to “improve the accuracy and efficiency of the information,” but said it’s up to those elections supervisors to make the final call.
Some backers of the payments law say the responsibility should be on ex-offenders, not the state, to figure out how to comply with SB 7066.
“If you’re going to register to vote and you’re a former felon, it’s worth double checking to make sure you took care of everything,” said J.C. Martin, chairman of the Polk County Republican Party in central Florida.
A federal judge in the Northern District of Florida has set a Monday hearing on the plaintiffs’ request for a preliminary injunction to throw out the fees requirement. A decision could come as early as this month.
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Florida stripped felons of their votes during the Jim Crow era in 1868, a ban that endured 150 years and disproportionately affected black voters. As recently as 2016, more than 1.4 million people with felony convictions were barred from voting in Florida, including one in five African American adults, according to The Sentencing Project, a criminal justice nonprofit, which used state conviction and incarceration records for the study.
In November 2018, nearly 65% of Florida voters approved a constitutional amendment restoring voting rights to felons, except those convicted of murder and sex crimes.
Through the end of July, Florida recorded around 337,000 new voter registrations, 45,000 of them by African Americans. That’s a 22% increase in new black voters compared to the same period in 2015, the year preceding the last presidential election, a Reuters analysis of Florida voting data shows.
The ballot initiative said felons must first complete “all terms of their sentence including parole or probation.” Republican lawmakers interpreted that to include any court costs, fines, fees and restitution to victims imposed at sentencing. In May, they passed a bill requiring repayment as a condition for voting.
DeSantis, the governor, signed it into law in June amid criticism by voting rights advocates that the legislation was intended to suppress potential votes of African Americans, who tend to vote Democratic. DeSantis has dismissed claims that the law is a poll tax.
The state is still discussing ways to centralize data to track payments. Building a consolidated system could take years and cost millions, according to lawmakers and officials who debated the issue before the law’s passage.
“Right now, the system is just a mess,” ACLU attorney Julie Ebenstein said.
Sean Morales-Doyle of the Brennan Center said the group spent weeks trying to track down what Tyson owes, but couldn’t get a clear answer.
For example, Tyson has a 1998 theft conviction in Hillsborough County on Florida’s Gulf Coast. A judgment order on the clerk’s online docket shows he was ordered to pay $661 in costs, fines and fees. But a separate subpage on the website indicates he was ordered to pay $1,066. Still another shows a total of $573. Tyson’s lawyers say no officials have been able to explain the discrepancies.
State Representative Jamie Grant of Tampa, a Republican supporter of SB 7066, said critics of the law are the ones trying to defy the will of the electorate.
“You don’t get to change what the definition and terms are after people vote for it,” Grant said. (Reporting by Linda So; Editing by Marla Dickerson)