Democrats Need Voters’ Help To Fix Gerrymandering. Will They Get It?

Originally published in Talking Points Memo on September 6, 2018.

In late 2017, after a first-time Democratic candidate won a special election in Washington, the Senate chamber tipped blue, giving Democrats a “trifecta” over the state’s government. One of their first orders of business was passing the “Access to Democracy” package — a sweeping set of voting reforms that included automatic voter registration and same-day registration. Over Republican opposition, Gov. Jay Inslee signed it into law by March.

Also in late 2017, following Democrat Phil Murphy’s gubernatorial victory in New Jersey, the small, dense East Coast state likewise shifted to Democratic control over both houses of the legislature and the governor’s mansion. By April, Gov. Murphy had signed automatic voter registration into law, meaning the state’s Motor Vehicle Commission will now register New Jersey voters by default when they apply or renew their driver’s license. Republican Gov. Chris Christie had vetoed similar legislation in 2016 and 2015, as well as a bill to expand early voting in 2013.

Not all the Democratic “trifecta” states have estimable voting laws — longtime blue states like New York and Delaware stand out for their barriers — but the momentum behind voting rights in newly wrested blue states reflects a growing shift in the party.

Oregon was the first state to pass automatic voter registration in 2015, going on to claim the highest turnout increase of any state the following year. Since then twelve other states and Washington D.C. have passed automatic voter registration, the result of a fast-growing consensus that making it easier to vote, not just fighting voter suppression, is the type of political battle Democrats should be embracing.

“It is striking how much people have recognized there is no downside, and a strong upside, to staking out pretty clear, strong positions on voting rights,” says Zachary Roth, a journalist and the author of “The Great Suppression,” published in 2016. Roth recalls much more reticence among Democrats even five years ago, saying: “Leaders had been in wait-and-see mode, to see how these issues were going to play politically.”

At a time when public confidence in the integrity of American elections appears to be slipping — no doubt aided by the president’s lies claiming rampant voter fraud — the efforts among progressives to prioritize voting rights marks a shift for an issue that had long been left largely to lawyers and courtrooms. With Trump as president and the next redistricting process looming large, a slew of new and old organizations is scrambling to figure out how and if they can make wonky, procedural voting issues ones that excite and motivate turnout.

The voting rights space has long been peppered by nonpartisan, nonprofit advocacy organizations that push pro-democracy agendas. While these organizations — like Common Cause, the NAACP, and Demos — have often navigated charges of liberal bias, their nonpartisan identities have also been important staples of the “good government” movement.

In recent years, though, there’s been a shift in the democracy reform world, with the rise of more explicitly partisan organizations.

One is Let America Vote, founded in early 2017 by Jason Kander, a Missouri Democrat who lost narrowly to Republican Roy Blunt in a 2016 U.S. Senate race. Kander, who ran one of the most viral campaign ads that cycle, was quickly dubbed a rising Democratic star and a potential presidential candidate for 2020.

Let America Vote was founded, Kander likes to say, to “win the political argument” against voter suppression, and “create political consequences” for those trying to suppress the vote. With Trump appointing federal judges and Jeff Sessions leading the Department of Justice, Let America Vote says it aims to take the fight from the courthouse to the court of public opinion. Largely fueled by volunteers, unpaid interns, and a few full-time staffers in each state, the organization sends volunteers around districts to knock on doors and meet voters.

The goal is not necessarily to talk to voters about voter suppression, though. “Sometimes it means our folks emphasize other issues,” Kander told me, pointing to the group’s campaign work for Danica Roem, who, in 2017, won a Virginia House Delegate seat. Roem was facing off against a longtime Republican incumbent, Bob Marshall, who backed a host of voting restrictions, like requiring voters to provide proof of citizenship before casting a ballot. But Let America Vote volunteers mostly talked to voters about the issues Roem was focusing on, like reducing traffic congestion.

Kander says his team adapts its strategy from race to race, but does “whatever it takes” to ensure those restricting the right to vote pay a price. “Republicans across the country are very well-aware this is no longer a consequence-free exercise,” he says.

Roth says creating political consequences really has been “a missing part of the puzzle” for voting rights advocates. The Democratic Party had done it sort of sporadically, he explains, “but not in any sustained or really effective way.”

Speculation that Let America Vote was just something of a vehicle for Kander to spin his wheels until it was time to jump back into 2020 grew more pronouncedwhen he hired a Des Moines Register political reporter in April as a speechwriter and communications director. The hire seemed like a smart choice for an insurgent candidate looking to staff up for a competitive primary. But those rumors quieted down in late June, when Kander announced he was jumping into the Kansas City mayoral race. The election is next summer, and if he won he would not then enter the presidential mix.

The National Democratic Redistricting Committee (NDRC), launched by former U.S. Attorney General Eric Holder in January 2017, is a different story. It’s not much of a secret that Holder is weighing whether he should wade into the 2020 fray; he says he’ll make his decision early next year.

Until then, at least, Holder is focused on NDRC, pitched as a “strategic hub” for redistricting efforts across the country. The organization is armed with millions of dollars and a four-pronged strategy of pushing reforms, waging litigation, electing Democrats, and organizing educational campaigns. It’s also armed with an important ally: Barack Obama, who jumped back into politics last summer and announced that pushing back on Republican gerrymandering would be his main post-White House focus.

It’s fitting that Obama would care about redistricting, since partisan gerrymandering complicated nearly all of presidential objectives. Republicans flipped 959 legislative seats during his tenure. In 2012 Democrats won 1.5 million more votes than Republicans in House of Representative races, but the GOP still secured a 234-to-201 seat advantage. The GOP also maintained its control in 2016, despite winning fewer than half of all votes for the House. (Steve Stivers, a Republican House member from Ohio, even admitted this year that his party is well-positioned to maintain power in the next cycle because of its successful gerrymandering post-2010.)

NDRC’s first real foray was in the Virginia election, where it spent $1.2 million in 2017 to elect Gov. Ralph Northam. The group proudly notes that this is the first time since 1991 that Virginia will have a Democratic governor with veto power over the redistricting process.

“From my perspective, success is if you break a trifecta,” Holder told The New York Times in February. “I don’t think that in December of 2018, you measure success only by whether you have assumed control of a particular state.” NDRC regularly reminds the public that half of all leaders who will be redrawing the congressional maps in 2021 will be elected this November.

NDRC is not just focusing on governor’s mansions and congressional races. In May Ohioans voted overwhelmingly in favor of a constitutional amendment for a bipartisan redistricting commission. Holder’s group spent $50,000 supporting this effort, and in addition to Ohio, four more states have redistricting on the ballot this November. (This is a big shift: Only five states had redistricting ballot initiatives in entire the preceding decade.) NDRC also intervened this year in the heavily gerrymandered state of Wisconsin, spending more than $500,000 to elect Rebecca Dallet, a state Supreme Court candidate who won a ten-year term in April.

The state-level Supreme Court focus is partly due to the group’s recognition that the U.S. Supreme Court is unlikely to be much of an ally going forward, yet gerrymandering can’t be fully tackled without the help of the judicial system. And sometimes, state courts can still be of assistance: In 2018, the Pennsylvania Supreme Court knocked down Republican-drawn voting maps, concluding they violated the state constitution. But this past summer the U.S. Supreme Court punted on two redistricting challenges despite previously agreeing that gerrymandering is “incompatible with democratic principles” and can amount to “rigging elections.” That combined with Justice Anthony Kennedy’s retirement — he was the needed fifth vote to curb gerrymandering — has all but prompted advocates to look away from the nation’s highest court.

“The politicians have gotten way ahead of the courts in voting rights starting about ten years ago,” says Gerry Hebert, the senior director of voting rights and redistricting at the Campaign Legal Center. “And by that I mean the sophisticated technology with respect to redistricting has really enabled politicians to pull the wool over the courts’ eyes, with the ability to manipulate and gerrymander maps with surgical-like precision down to the block level.” The effects of partisan gerrymandering since 2012 have indeed been more pronounced than at any point in the previous 50 years, according to the Princeton Gerrymandering Project.

Hebert, who served in the Department of Justice between 1973 to 1994, says it’s gotten much harder to litigate and win voting rights cases than it used to be. With weakened legal power, political organizations like NDRC and Let America Vote arguably play an even more important watchdog role. But making issues over reapportionment accessible and exciting can be difficult.

To take this on, in 2018 the NDRC teamed up with Organizing for Action, the national activist group affiliated with Barack Obama. (The 501c4, founded by Obama’s 2012 campaign manager Jim Messina, formed in in 2013 and commanded the campaign’s coveted email list and relationships with donors.)

Together, in addition to raising money and blasting emails from high-profile surrogates, the two groups have been organizing events like happy hours, speeches, and citizen house parties dedicated to the stakes of redistricting, and national video conferences focused on the same.

In late July 3,000 people signed up for a joint OFA-NDRC webinar featuring Eric Holder. Participants from around the country got to ask him questions, like how to talk to friends about gerrymandering without making their eyes glaze over.

“Gerrymandering is cheating,” Holder emphasized into his webcam. “It allows politicians to pick their voters, instead of having people choose their representatives.”

The advent of explicitly partisan groups, working on both voting rights and electing Democrats, can fuel legitimate suspicion that liberals are just seeking their own ways to tip the balance of power. Some are not exactly trying to hide it. NextGen America, funded by the largest individual Democratic political donor Tom Steyer, advocates against voter suppression and for restoring the Voting Rights Act, and also aims to elect a slew of Democrats this November through a massive youth turnout effort. Other groups like the grassroots Indivisible network and the ACLU’s Let People Vote Campaign have led ostensibly nonpartisan voting rights work, but both organizations have become so heavily associated with the Trump administration “resistance” that even those efforts can feel quite partisan.

Not to mention that Democrats certainly have their own history with gerrymandering maps and erecting procedural voting hurdles. One of the two cases the Supreme Court sidestepped this summer was pushed by Republican voters in Maryland’s 6th Congressional District; they argued their district map was drawn unfairly to help Democrats win. In Rhode Island, a Democratic-controlled legislature approved a new voter ID law in 2011, pushed by a Democratic state senator. (“I would not support anything that I thought would present obstacles or limit protections,” the bill sponsor claimed after it passed.)

“It’s a scary thing for old-school politicians and their operatives to have a giant new wave of people coming in to vote that they don’t know about,” says Kathay Feng, Executive Director of California Common Cause. “It’s a very small universe of people who will stand up and say they want more restrictive laws — I would say most electeds in California have decided that publicly they cannot align themselves with voter restrictions — but privately they still might support them.”

“NDRC hasn’t yet had the rubber meet the road for maps on both sides,” says Justin Levitt, a constitutional law professor at Loyola Law School and a former Department of Justice attorney focused on voting rights. “If Democrats take unilateral control over some states there will likely be Democratic abuses, and we’ll see what, if anything, they do about it.”

When I asked Kelly Ward, executive director of NDRC, what she sees her group doing to push back against Democrats who might try to gerrymander themselves, she responded by pointing to her group’s focus on public education. “I think it’s going to be really important that citizens are engaged in the redistricting process,” she says. “If elected officials feel you’re paying attention, they’re more likely to do the right thing.” Whether Democratic voters would rally against Democratic gerrymandering, however, is a separate question.

There is some evidence to suggest that progressives are entering a new period, though, where they aren’t as willing to let Democrats get away with suppressing the vote. Last year in New Mexico, Democratic legislator Debbie Rodella repeatedly opposed efforts introduced by her liberal colleagues to ease voting rights. Rodella’s opposition helped kill the bills, despite Democratic majorities in both state chambers.

This year, however, voters decided to get rid of Rodella. She’s served in the state legislature for twenty-five years, but facing a primary challenger for the first time since 2006, Rodella lost in June by double-digits.

Miles Rapoport, a senior fellow at Harvard’s Kennedy School of Government and former president of Common Cause, says he thinks the entrance of more partisan groups is “an overall healthy development” in the voting rights space. While he acknowledges it “gives some ammunition” to those who charge democracy activists with being unforthcoming Democrats, he says these critics have already been saying that for years. And Rapoport notes that while people in the partisan world are taking up democracy issues more often, there’s still a “robust, nonpartisan movement trying to bring as many people into the fold.”

Not all from the nonpartisan universe are so enamored though. “There are a number of organizations that have sprouted up in 2017 that have very big online presences and fairly large fundraising efforts, but whether they’re really putting in money to reform efforts or to sustain themselves is less clear,” says Feng. “Unfortunately they are tapping into people’s heightened concern about a variety of issues, from voting to redistricting, and raising boatloads of money. It’s easy to send emails or write an op-ed, but the real question is whether they are supporting true state-based reform efforts.”

One area where NDRC’s fundraising prowess might be particularly useful is in Michigan, where a citizen-led effort to get redistricting reform on the 2018 ballot has dropped the jaws of cynics and pundits across the country.

In 2016, following Donald Trump’s victory, a 27-year-old recycling program coordinator from Grand Rapids was dreading the inevitable political arguments she’d face at her Thanksgiving table. Hoping to throw herself into a cause that was something all her loved ones could agree on, she took to Facebook two days after the election, and said: “I’d like to take on gerrymandering in Michigan. If you’re interested in doing this as well, please let me know.” The post blew up, and soon the author of the post, Katie Fahey, was leading Voters Not Politicians, a nonpartisan nonprofit organization, focused on getting a constitutional amendment for an independent redistricting commission. The proposed commission would be comprised of four Republican voters, four Democratic voters, and five independents.

For the next year Fahey and her army of volunteers canvassed the state, collecting signatures to get their amendment on the ballot. In December 2017, Voters Not Politicians submitted more than 425,000 signatures (Michigan citizen ballot measures require 315,000.) A state elections board approved it in June, and it survived a near-death blow at the state Supreme Court in July.

Feng of California Common Cause says national voting rights groups were slow to take this grassroots, citizen-led effort seriously. “The usual organized groups that put millions into such efforts were largely dismissive,” she says. “The traditional wisdom has been that for volunteer-led signature gathering campaigns, you have to pay at least $1 million-$5 million to these professional signature gatherers if you want to get something on the ballot. Katie’s grassroots campaign basically blew that out of the water.”

Michigan is one of the most heavily gerrymandered states in the country, and Republicans have commanded nine of the state’s fourteen congressional seats in every election since 2010, despite Democrats earning far more votes statewide some years. Republicans deny they manipulated the voting maps, but newly disclosed emails, released this summer as part of a federal court challenge, reveal GOP operatives consciously drawing the maps in their favor. Their redistricting efforts were done “in a glorious way that makes it easier to cram ALL of the Dem garbage in Wayne, Washtenaw, Oakland, and Macomb counties into only four districts,” wrote a Republican congressman’s chief of staff in 2011 to a GOP strategist and mapmaker. Another email drafted by a lawyer helping to design the maps said, “We’ve spent a lot of time providing options to ensure we have a solid 9-5 delegation in 2012 and beyond.”

Between now and Election Day, Fahey says a lot of her group’s work will be spent on fundraising to combat misinformation from opponents, like the Michigan Chamber of Commerce. “Right now our deep-pocketed opponents are claiming we are trying to do crazy things like eliminate the Voting Rights Act,” she says. “Many voters don’t know what redistricting reform is, and we’re an organization that didn’t exist 1.5 years ago, which has advantages but also real disadvantages.” As of July Voters Not Politicians had raised about $1.25 million.

Ward, of NDRC, says their group is “in touch with Katie and we’ll do whatever she needs to bring it across the finish line, including resources.”

Whether the constellation of nonpartisan and partisan groups succeed in making voting rights a major issue for Democrats this November may best be exemplified by what plays out in New Hampshire.

In 2016 Hillary Clinton narrowly won New Hampshire while Republicans secured unified control of the state’s government. The Granite State has one of the nation’s highest turnout rates, and Donald Trump notoriously claimed after the election that Massachusetts voters bused into New Hampshire to cast illegal ballots. The following year state Republicans pushed legislation that would impose new fees on college students who lacked in-state driver’s licenses and wanted to vote. They claimed such reforms were necessary to restore trust in the election process. Critics blasted the bill as a new poll tax, something that could cost young voters up to several hundred dollars.

secretly recorded video from December 2017 showed the state’s Republican governor, Chris Sununu, saying he “hated” the proposed voting requirement and hoped the legislature would kill it; he pledged never to support anything that suppresses the votes of students.

But this past July, Sununu signed it into law anyway. The law doesn’t take effect until summer 2019, so advocates are framing November as a referendum on this legislation and the broader issue of voter suppression in New Hampshire.

“I think it’s going to be a really significant issue,” says Gilles Bissonnette, the legal director at the ACLU of New Hampshire. “I think people are really shocked the governor would sign a bill he admitted he hated, and people are concerned about what this bill will do. We don’t think politicians should be allowed to choose their voters.”

While Bissonnette says voter suppression has “always been a big issue” in his state, citing efforts back in 2012 that were later struck down by the state Supreme Courtin 2015, he says the issue has grown much more salient with Trump.

“I think his statements about Massachusetts voters really elevated the issue of voting rights here,” he says. “Opponents of voting like to claim that people don’t have faith in our elections, but people lack confidence because they’re being fed lies.”

A coalition of groups have been organizing under the banner of the New Hampshire Campaign for Voting Rights — including nonpartisan organizations like the ACLU and League of Women’s Voters, as well as more partisan groups like Let America Vote, College Democrats, and NextGen America.

“We made hundreds of phone calls to the governor and state legislators, and organized hundreds of people to show up at the state house,” says Liz Wester, the state director for America Votes New Hampshire. “About 70 college students testified, and even dozens of students showed up the day the governor signed the bill and went back on his word.” Wester says this is an issue “voters are really fired up about.”

One reason so many partisan groups have decided to lean into voting rights is because the issue polls well.

In 2016 Gallup found 63 percent of Americans support automatic voter registration, and 80 percent favor early voting. More recent data from Civis Polling as part of the Data for Progress New Progressive Agenda Project found that 48 percent of likely 2018 voters support automatic voter registration, 37 percent oppose, and 15 percent aren’t sure. When so-called Democratic “influencers” (referring to involved party activists) were asked to pick their top political priorities from a list of almost a dozen issues, two of the top three most highly ranked issues were related to strengthening voting rights.

Sean McElwee, co-founder of Data for Progress, put it this way: “The way to think about voting reforms is that these policies don’t wildly motivate voters — that’s sort of a fantasy — but what is real is that the people who do not vote like progressive stuff.” Progressives should support making it easier to vote, McElwee says, partly “because it will increase turnout in our elections, and will create more space for progressive ideas.” In other words, making it easier to vote will bring in more marginal voters who lean further left than the historically more consistent voter.

Another shift that’s happened is that longtime voting rights groups have recognized the power of teaming up with those looking to get money out of politics, mobilizing together under the banner of a democracy reform agenda. Previously many players in the “good government” world were more siloed.

This past summer a host of progressive activists, organizations, and politicians rallied for a weeklong #FixDemocracyNow campaign. “It’s time to fix democracy by strengthening voting rights, fighting big money through small-donor elections, and ending gerrymandering,” a petition signed by participating groups read. “I call on my federal, state, and local candidates to campaign on their plans to create the democracy we deserve, where everyone’s voice is heard and everyone’s vote is counted.”

David Donnelly, president of Every Voice — a nonpartisan campaign finance watchdog group — says “linking money-in-politics to voting rights has been a very important strategic shift” for them over the last few years. “We’ve pivoted to frame the issue less about getting money out, and more around bringing people back in,” he explains. “Legally, the landscape has also changed and we’re thinking about money-in-politics now more in terms of participation than prohibition.”

It’s a symbiotic relationship for the voting rights world, too. New polling released this summershowed that millennials especially resonate with messages of ending corporate campaign donations and super PACs. “Since Citizens United there’s been increasing consciousness about things that are suppressing the influence of ordinary citizens, and voting rights has been part of that,” says pollster Stan Greenberg“People are very upset about it, and very supportive of things that make it easier to participate.” He adds that while voters “resent” politicians who try and limit the right to vote, the issue appears more politically motivating when included in the “larger framework” of reducing corporate money in politics.

And Democrats do seem to be responding to these signals. This past May, House and Senate Democrats released a plan entitled “A Better Deal for Democracy” with ideas to strengthen and expand voting rights, implement new campaign finance reforms, and beef up ethics laws. This builds on strong, proactive language Democrats included in their party platform for the first time in 2016. In 2012, the party’s platform criticized voter restrictions, but did not include affirmative plans to expand voting rights, and did not have as much to say about campaign finance.

This shift was probably inevitable, if not overdue. Republicans, backed by organizations like American Legislative Exchange Council, ramped up their effort to pass voting restrictions following the 2010 midterms, and robust gerrymandering efforts also worked to make threats to Democrats doubly effective. Advocates suffered yet another blow in 2013, when the U.S. Supreme Court gutted a central provision of the Voting Rights Act. Roth, the journalist who covers voting rights, says even a half-decade ago “there was just less of an awareness that Democrats need to get serious” about these issues.

“I think it’s become clearer for progressive organizations of every interest about our common stake in taking democracy and voting issues head on,” says Greg Speed, president of America Votes, which coordinates efforts among more than 400 state and local left-leaning groups. “Those conversations are much further along than they were even just a few years ago,” he adds.

It’s not that voting rights has never been a politicized issue before now. (“It only looks particularly polarized if you’ve got a months-long lens,” quips Levitt.) But the crop of new groups organizing and spending money, and old groups doubling down on offense with an increased sense of urgency and new tactics, suggests something may very well be different this time around. “Our democracy is under attack,” Holder said this summer. “That might sound hyperbolic,” he acknowledged, “but it’s true.”


Florida Has Been Stealing Votes From Black People Since The Civil War. That Could Change In November.

Originally published in The Intercept on September 6, 2018.

One in ten eligible voters in Florida are effectively disenfranchised, thanks to a draconian law that bars former felons from voting and a broken clemency system. When it comes to black voters, the numbers are even more grim: More than 20 percent of otherwise eligible black voters from Florida cannot cast a ballot. In total, more than a quarter of all disenfranchised felons in the entire country are in the Sunshine State.

But this November, Florida voters will have a chance to reverse that by weighing in on Amendment 4, a constitutional ballot measure to restore voting rights to an estimated 1.5 million Floridians who have fully completed their felony sentences. Florida is just one of three states in the U.S. that indefinitely bans citizens with felony convictions from voting.

Amendment 4 is the results of years of grassroots work by Florida organizers, but it’s also part of recent nationwide push on this front. In 2016, the Democratic Party put in its party platform for the first time a commitment to restore voting rights to formerly incarcerated individuals. Earlier that same year, the Democratic-controlled Maryland legislature overrode the veto of Republican Gov. Larry Hogan and restored the right to vote to more than 40,000 former prisoners still on probation or parole. Also over the course of 2016 and 2017, Virginia’s Democratic Gov. Terry McAuliffegranted clemency to more than 168,000 former felons.

Constitutional amendments in Florida require least 60 percent approval to pass — no easy objective. In 2012, for example, there were 11 constitutional amendments on the ballot, and Florida voters rejected eight of them.

But a slew of early polling bodes well for supporters of Amendment 4: In February, a Quinnipiac University poll found 67 percent of Florida voterssupported the idea of restoring voting rights to individuals who have committed a felony and completed their sentences, while 27 percent opposed it. Another poll released in May found that 74 percent of voters say they’d back Amendment 4. However, a poll released in June by the Florida Chamber of Commerce found that just 40 percent of voters approved of Amendment 4, with 17 percent opposed and 43 percent undecided.

The passage of Amendment 4 would be monumental to the vast majority of former felons in the state, but some would still get left behind; it does not provide restoration for those convicted of murder or sexual offenses. There’s a pragmatic rationale behind that: A measure that allows someone who, say, committed a robbery to vote again is much easier to sell politically than one that re-enfranchises someone convicted of rape. The amendment also has the full-throated support of Andrew Gillum, the Democratic candidate for governor who won an insurgent victory in last week’s primary. (Floridians energized by Gillum’s nomination are likely to vote in favor of the amendment.) His Republican opponent, Rep. Ron DeSantis, stands in opposition.

Disenfranchising criminals has a legal history that dates back well before the existence of the United States. Sean Morales-Doyle, a counsel in the Democracy Program at the Brennan Center for Justice, said the practice was prevalent in English common law and can likely be traced back to ancient Rome.

“It comes from an outmoded concept of government and criminal justice, that if you commit a crime you become an outlaw, and in addition to potentially being subject to the actual death penalty, it is appropriate for you to suffer a ‘civil death’ and no longer be allowed to participate in society in any way,” he said.

While some states adopted criminal disenfranchisement in their early years, Morales-Doyle said many did not, and there was a lot of variation during the United States’s formative years. However, in the period immediately following the Civil War, interest in felon disenfranchisement grew far more pronounced, especially in the South. Following the ratification of the 13th, 14th, and 15th Amendments, African-Americans received a wave of new rights, freedoms, and — importantly — political power, which were wholly opposed by many whites. States began to push for ways to undermine these new protections, like restrictions on voting for people convicted of crimes that black people were more likely to be found guilty of, thanks to a criminal justice system that was rife with racial prejudice. For example, South Carolina lawmakers barred those convicted of “thievery, adultery, arson, wife beating, housebreaking, and attempted rape” from voting, but not those convicted of murder or fighting. By 1869,29 states had enacted such policies.

This included Florida, which enacted a constitutional provision to indefinitely ban former felons from voting. It’s remained on the books ever since. “It was passed in 1868, after an unsuccessful attempt by Florida and other states to reject the 15th Amendment,” says Morales-Doyle. “So Florida passed a constitution with universal male suffrage — as required by the 15th Amendment — but then included some other provisions to undermine it, and one was the felon disenfranchisement provision.”

In the last half-century, many states have moved in the opposite direction. Though Maine and Vermont are the only two states that allow currently incarcerated individuals to vote, it’s just Florida, Iowa, and Kentucky that still permanently bar all citizens with felony convictions from voting. But many states still have other sorts of restrictions: Nationwide, more than 6 million Americans are barred from voting due to a felony conviction. According to the Sentencing Project, more than half have fully completed their sentences, another quarter are under probation or parole, and another quarter are still in prison. While 1 out of every 40 U.S. adults is barred from voting due to a former or current felony conviction, one in 13 African-American adults is disenfranchised.

Florida’s system for clemency has been mostly unchanged since the 1880s, but it grew even stricter in 2011, when newly elected Republican Gov. Rick Scott issued new rules requiring citizens with a felony conviction to wait at least five years before filing for clemency, including the restoration of voting rights — a process that often takes a decade or more.

Nearly five years after taking office, Scott had issued clemency to fewer than 2,000 Florida citizens, while over 20,000 applications remained pending. The number of disenfranchised Floridians has meanwhile continued to grow. Between 2010 and 2016, nearly 150,000 more were disenfranchised, bringing the total to about 1.7 million, according to the Sentencing Project. (This figure includes people who are still serving out their sentences, who would not be covered by Amendment 4.)

There have been some unsuccessful legal attempts in the past to strike down Florida’s voting ban on citizens with felony convictions. In 2000, the Brennan Center filed a class-action suit on behalf of more than 600,000 Florida citizens, arguing that the constitutional provision was discriminatory, and a violation of the 14th and 15th Amendments, and the Voting Rights Act of 1965. The federal district court for the Southern District of Florida agreed, but the U.S. Court of Appeals for the 11th Circuit in 2005 rejected it on appeal, saying the plaintiffs had failed to prove clear discriminatory intent.

A couple years later, the state started to make progress on its own. Former Republican Gov. Charlie Crist, who was in office from 2007 to 2011, granted automatic clemency for people completing sentences for certain felony convictions. More than 115,000 Florida citizens had their voting rights restored between 2007 and 2008, and by the end of his four-year term, more than 150,000 people with felony convictions regained their right to vote. (Crist is now a Democratic member of Congress.)

But within three months of taking office, Scott repealed the Crist-era reforms and issued even stricter barriers for voter restoration. He has earned a notorious record for voter suppression even beyond felon disenfranchisement, including signing a law in 2011 that reduced the window for early voting in Florida. (Facing immense public outrage, Scott and the legislature reversed course on this in 2013.)

Voting rights activists are pushing back on multiple fronts against Scott, who is now running for Senate. In addition to Amendment 4, there’s a class-action lawsuit winding through the courts — Hand v. Scott — that is trying to change the Florida voter restoration process while avoiding making the same legal argument about discrimination that failed in 2005. The Fair Elections Legal Network is representing former Florida felons who completed their sentences. The plaintiffs argue that the process used by the Florida clemency board to determine who should get their right to vote back is arbitrary and violates the equal protection clause of the 14th and 1st Amendments. In February, U.S. District Judge Mark Walker agreed. “Disenfranchised citizens must kowtow before a panel of high-level government officials over which Florida’s Governor has absolute veto authority,” Walker wrote in his opinion that struck down the state’s clemency system. “No standards guide the panel. Its members alone must be satisfied that these citizens deserve restoration.” In March, he ordered Scott to revamp Florida’s system by the end of April.

The state appealed to the 11th Circuit, putting a hold on Walker’s order. The case remains pending.

Amendment 4 is a chance to try something new — a grassroots, citizen-led effort in which the power for change is in front of voters, not judges and elected officials.

Activists started collecting petition signatures in 2015, under the banner of Floridians for Fair Democracy. Led by Desmond Meade, who was convicted of several drug charges and later completed a 15-year prison sentence for possession of a firearm as a felon. Organizers collected more than 799,000 certified signatures from registered voters in all 27 congressional districts, surpassing the minimum 766,000 signatures needed to get on the November 6 ballot.

Neil Volz, a former chief of staff to Republican Rep. Bob Ney — the congressman sentenced to jail in 2007 for corruption charges — pleaded guilty in 2006 to conspiring to corrupt public officials. Volz paid a fine and did community service, and never served time in prison, but when he moved to Florida in 2008, he realized he was unable to participate fully in his community. When he met Meade in 2015, Volz said, he quickly decided to get involved in the voter restoration effort. Today, he serves as political director for the Florida Rights Restoration Coalition, a grassroots organization led by returning citizens. “While collecting signatures I met people from all walks of life, from all over the state, from all political backgrounds, who were close to the pain of this policy,” Volz told The Intercept. “This is just about second chances.”

THE CAMPAIGN’S MESSAGING around second chances, however powerful, has its limits. Under Amendment 4, that redemptive message is not being extended to those who have been convicted of felony sex offenses or murder.

Gail Colletta, president of the Florida Action Committee, a state affiliate of the National Association for Rational Sexual Offense Laws, said that she supports Amendment 4, but her group opposes the exclusion of the over 70,000 citizens currently on Florida’s sex offender registry.

“The bottom line is that they leave this population out of anything that’s positive because they have a distorted view as to who people who are,” she told The Intercept. “They look at every sex offender like they’re a Ted Bundy.”

Colletta notes that while the criminal justice system looks at drug offenders and even murderers on a graded scale, society paints sex offenders with a broad brush. “It doesn’t matter what you did, they treat you all the same with a lifetime of punishment,” she said.

Critics note that by excluding sex offenders and murderers from the November amendment, these populations will become even further stigmatized than they already are.

“This country was built on Christian-Judeo values and in my understanding, that means people deserve a second chance,” Collette said, “but here we’re willing to throw [sex offenders] under the bus for politics.”

Darryl Rouson, a Democratic member of the Florida Senate, has long been a proponent of voter rights restoration. Prior to Amendment 4 making it to the ballot, Rouson himself introduced a now-withdrawn amendment to the state constitution. It would have excluded not only sex offenders and murderers from automatic rights restoration, but 12 additional categories, including kidnappers and armed robbers.

“It would have still covered about 70 percent of the people currently disenfranchised,” Rouson told The Intercept. “I felt mine was a reasonable compromise in a state that has not indicated sensitivity to the issue of voting rights.” Passing Amendment 4 a “critical, moral issue,” he added.

When asked why the drafters of Amendment 4 opted to exclude those who committed sex offenses or murders, Volz told The Intercept that that’s “what the people wanted” and that their campaign has “been listening to people at every step along the way so we knew [those exemptions] needed to be included in the initiative.” But the petition language has remained the same since organizers began collecting signatures, and it could not have been changed based on public feedback after the drive began in 2015. “We’re focused on moving this forward, in the healthiest, broadest way that we can,” Volz said, declining to answer more specific questions. (Meade did not return multiple requests for comment on this issue.)

It’s not clear when the 11th Circuit will rule on the Hand v. Scott case, but if Amendment 4 passes, Jon Sherman, senior counsel at the Fair Elections Legal Network, said the lawsuit would be rendered moot, because all the plaintiffs would regain their right to vote.

Morales-Doyle of the Brennan Center said creating exemptions for specific convictions is an exception to the larger trend of how voting rights restoration is playing out elsewhere across the country, in part because of the unique political circumstances in Florida.

“The discussion around felon disenfranchisement is more typically around ‘when does the restoration come?,’” he said. “Is it after you’ve paid off all your legal obligations, as soon as you’re released from prison, or whether you’ve completed probation and parole?” Morales-Doyle pointed to New York, which is one of the few states left in the country where citizens still lose their right to vote while on parole. (In April, Democratic Gov. Andrew Cuomo announced he intends to restore voting rights to the more than 35,000 felons on parole.)

“The sense of fairness is central to the question of rights restoration, the idea that if you’ve served your sentence, you should be allowed to vote,” he says. “I think what’s happening in Florida, making it contingent on the crime, is unique.” He pointed out that Florida faces some unusual political circumstances, with its anomalous rate of felon disenfranchisement, and the tough 60 percent threshold needed for an amendment to pass.

“Without passing judgment on whether that was the best place to come down, my point is just that there has to be a really broad base of support for this amendment, so the question of who will be won over by what policy is what led to the current moment,” he said.

With the election just two months away, Volz said campaign organizers will continue to hold events, educating the public about the importance Amendment 4 and rights restoration.

Rouson, the state senator, said it’s been hard for activists to sustain focus on the initiative while the primaries loomed. “We legislators could all do more to raise awareness around this issue, and there are grassroots champions across the state doing the work, but I also think the attention of the voters was divided because of the primary,” he said.

There are 13 constitutional amendments on the Florida ballot this cycle. “The worry is that voters will get ballot fatigue, under-vote, or not vote on everything,” Rousen said. “We need to educate voters early and often.”

The Growing Movement to Restore Voting Rights to Former Felons

Originally published in The American Prospect on August 7th 2015.

Rachel M. cohen

SEIU 1199 

Rachel M. Cohen


On August 6, the 50th anniversary of the Voting Rights Act, dozens of Baltimore ex-felons rallied and marched alongside community members to protest their disenfranchisement. In May, Maryland Governor Larry Hogan vetoed a bill which would have granted ex-felons the right to vote when they return home from prison, rather than making them wait until after their probation and parole sentences have been completed (some sentences can last for decades). Holding up signs that read, “We Want Taxation with Representation!” and “End the New Jim Crow!” protestors made clear that they understand the racial implications of the status quo. Had Hogan signed the bill into law, 40,000 more Maryland residents—a majority of them black Baltimoreans—would have been able to cast a ballot in the next election. “Override! Override! The veto! The veto!” protestors shouted together as they marched down the street.

The crowd, well over 100 people, eventually gathered around a statue of Thurgood Marshall, not far from Baltimore’s Inner Harbor. “We picked that spot because he’s one of the greatest symbols of justice and fairness,” explained Perry Hopkins, an ex-felon who now works as an organizer with Communities United, the social justice group that planned Thursday’s rally. Fifty-four-year-old Hopkins has never voted.

While Baltimore has made national headlines this year for its police brutality scandals and its spiking murder count, the gathered crowd recognized that these issues cannot be separated from the societal exclusion African-Americans experience every day.

One woman who came to the rally was Robinette Barmer, who has had two children and one grandchild locked up in jail. Barmer has been fighting for ex-felon voting rights all year, and traveled to Annapolis last spring to push for the bill’s passage. “I try to tell ex-cons that their voices do still matter,” she said.

Greg Carpenter, a 62-year-old black man who served 20 years in prison for an armed robbery, also has a 20-year parole sentence. Although Carpenter has been out of jail for 12 years now, he worries he won’t ever get to vote again in his lifetime.

Governor Hogan said that requiring ex-felons to finish their parole and probation sentences before voting “achieves the proper balance” between repaying one’s obligations to society and restoring citizens’ rights. Ex-felons point out that they are both working and paying taxes within their communities, and thus should also have the right to vote.

Social science research suggests that removing voting restrictions would provide positive benefits to both ex-offenders and society at large. The American Probation and Parole Association also says there is no credible evidence to suggest that disenfranchising people who have returned home from prison serves any legitimate law enforcement purpose.

According to the Sentencing Project, a criminal justice advocacy group, there are roughly 5.85 million disenfranchised American citizens with felony convictions, and 2.2 million of them are black. That’s one out of every 13 African-Americans.

The Voting Rights Act was passed in 1965 to end discriminatory voting barriers but the courts have disagreed on whether the VRA should apply to felon disenfranchisement laws. Maryland activists aren’t waiting around for the courts, though. At Thursday’s rally, organizers prepped the crowd for next year’s legislative season where they hope to push for an override. “We need you to show up and come out with us to Annapolis,” said Nicole Hanson, an ex-offender who works with Out4Justice, a group that politically mobilizes ex-offenders. “There’s only 90 days of [the legislative] session, so we’ll need you to make some sacrifices.”

Eighteen states considered loosening ex-felon voting restrictions this year, up from 13 states in 2014. But passing legislation, as Maryland activists witnessed first hand, is difficult. Only one state—Wyoming—ended up successfully loosening its restrictions.

Still, there has been demonstrable progress. The Sentencing Project estimates that nearly 800,000 citizens have regained the right to vote through voting reforms enacted between 1997 and 2010. Last month, President Obama even said that, “If folks have served their time, and they’ve reentered society, they should be able to vote.”

“This is a very peaceful rally, but this issue is personal,” Hopkins said in an interview. “We’re going to flip power, and we’re going to empower. We’re going to show the governor who’s the boss. We’re the boss! We’re the people.”

Rachel M. Cohen

Perry Hopkins at the podium