Fla.’s racist his­tory on vot­ing rights

Con­sti­tu­tion had banned felons, while ‘Black Codes’ made con­vic­tions eas­ier

Orlando Sentinel - - NATION & WORLD - By Tim El­frink

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In 1868, Florida’s white elites faced a threat ev­ery bit as grave as the Civil War that had ended in Con­fed­er­ate de­feat three years ear­lier. Con­gress had just forced Florida to re­write its con­sti­tu­tion to al­low ev­ery man the right to vote. But adding thou­sands of newly el­i­gi­ble black res­i­dents to the rolls would abruptly make whites a vot­ing mi­nor­ity.

The old guard’s only hope was to some­how ban black vot­ers with­out vi­o­lat­ing Re­con­struc­tion acts passed by Con­gress af­ter the Civil War. Hud­dled in Tal­la­has­see back­rooms through­out that cool Jan­uary, they found just the ticket: a life­time vot­ing ban on any­one with a felony con­vic­tion. Com­bined with post­war laws that made it com­i­cally easy to sad­dle black res­i­dents with crim­i­nal records, leg­is­la­tors knew they could sup­press black votes in­def­i­nitely.

Or at least for a cen­tury and a half. On Tues­day, Florida voted to end that 150-year-old ban by back­ing Amend­ment 4, which will re­turn vot­ing rights to more than 1 mil­lion Florid­i­ans who have al­ready served out their sen­tences. The amend­ment gar­nered 64 per­cent of the vote.

His­to­ri­ans say the vote also ends a law with roots so bla­tantly racist that one state leader later boasted that the post­war con­sti­tu­tion would prevent Florida from be­com­ing taken over by blacks, us­ing a ra­cial slur to de­scribe them.

“Their in­tent was quite clear: to elim­i­nate as many black vot­ers as pos­si­ble,” said Dar­ryl Paul­son, an emer­i­tus pro­fes­sor of gov­ern­ment at the Uni­ver­sity of South Florida St. Peters­burg.

The ban was re­mark­ably ef­fec­tive at do­ing so, even 150 years later. As of 2016, more than 1 in 5 black Florid­i­ans couldn’t vote thanks to the rule, ac­cord­ing to an anal­y­sis by the Sen­tenc­ing Project.

“We can’t have a democ­racy with per­ma­nent sec­ond-class cit­i­zens,” Howard Si­mon, the Amer­i­can Civil Lib­erty Union’s Florida ex­ec­u­tive di­rec­tor, told the Mi­ami Her­ald.

The ori­gins of Florida’s ban trace back to the blood­soaked days just af­ter Robert E. Lee’s sur­ren­der. As South­ern states like Florida re­joined the Union, many tried to ex­plic­itly ban black vot­ers. Florida’s first post-war state con­sti­tu­tion in 1865 only gave the right to vote to “free white males,” ac­cord­ing to a 2016 re­port by the Bren­nan Cen­ter for Jus­tice.

White law­mak­ers had a tac­ti­cal rea­son to fear newly em­pow­ered black vot­ers. While blacks made up about 45 per­cent of Florida’s pop­u­la­tion af­ter the war, thou­sands of white res­i­dents had lost their right to vote over their Con­fed­er­ate ties. By 1867, Paul­son found, there were 15,434 black vot­ers reg­is­tered in Florida and just 11,148 who were white.

Even as Con­gress forced south­ern states’ hand with the 13th, 14th and 15th Amend­ments, which freed slaves and gave them cit­i­zen­ship and the right to vote, Florida leg­is­la­tors laid the ground­work to dis­en­fran­chise those black res­i­dents. In 1865, the state passed a pack­age of laws known as the “Black Codes” that upped the penal­ties for charges easy to pin on freed blacks, in­clud­ing as­sault­ing a white woman, disobedience and “va­grancy,” a crime with such a broad def­i­ni­tion nearly any­one could be charged.

That was the per­fect pre­cur­sor to in­clud­ing a vot­ing ban on felons in the 1868 con­sti­tu­tion. Leg­is­la­tors also in­cluded a more broad vot­ing pro­hi­bi­tion against any­one con­victed of more mi­nor “Black Code” crimes, like lar­ceny.

“Felony dis­en­fran­chise­ment was a way of re­duc­ing the ef­fect of the de­spised black suf­frage that Con­ser­va­tives knew they had no al­ter­na­tive but to ac­cept,” wrote his­to­rian Jer­rell Shofner in a piece on the draft­ing of Florida’s 1868 con­sti­tu­tion.

The law was just one among many the state adopted to keep AfricanAmer­i­cans away from the polls. In 1889, Florida be­came the first state to adopt a poll tax, charg­ing $2 an­nu­ally with full knowl­edge that poor blacks would be dis­pro­por­tion­ately af­fected. It later adopted lit­er­acy laws and res­i­dency rules aimed at cut­ting out black vot­ers, Paul­son said.

Those ef­forts were as­tound­ingly ef­fec­tive. As lit­tle as 3 per­cent of black Florid­i­ans were reg­is­tered to vote in 1940. By 1961 in Gads­den County in Florida’s Pan­han­dle, there were 12,261 African Amer­i­cans old enough to vote — but only seven were reg­is­tered, ac­cord­ing to the Bren­nan Cen­ter.

Most of those out­right dis­crim­i­na­tory rules ended in the civil rights era of the 1960s, but Florida’s felony vot­ing ban con­tin­ued. In 1968, Florida leg­is­la­tors wa­tered down the rule but kept the ban on felons. When black vot­ers took the state to court, a panel from the 11th U.S. Cir­cuit Court of Ap­peals found there was “ra­cial an­imus” be­hind the orig­i­nal law, the Bren­nan Cen­ter noted, and no com­pelling rea­son to keep it on the books. But that de­ci­sion was later re­versed by the full court sit­ting en banc.

More re­cently, then-Repub­li­can Gov. Char­lie Crist eased the rules for many felons to get their rights back, restor­ing tens of thou­sands to the elec­toral rolls. But Gov. Rick Scott erased those re­forms in 2011, adding a new five-year wait­ing pe­riod and re­quir­ing felons to ap­pear be­fore a clemency board in per­son to plead their case.

That has led to a sys­tem so bizarre that John Oliver panned it as “in­sane” in a re­cent piece on “Last Week Tonight.” “It may be the dumb­est thing about Florida, which is say­ing some­thing,” Oliver said.

As a back­log grew of more than 10,000 peo­ple wait­ing to be heard by the clemency board, Scott’s de­ci­sions neatly fit the his­toric pat­terns of the ban. The Palm Beach Post found that Scott re­turned vot­ing rights to three times as many white men as black men.

Amend­ment 4 nabbed more than 1.1 mil­lion sig­na­tures to land on Tues­day’s statewide bal­lot and found sup­port from a sur­pris­ing breadth of back­ers, from the Koch Broth­ers-funded Free­dom Part­ners to the ACLU. But it did face op­po­si­tion from main­stream GOP can­di­dates, in­clud­ing Scott, who re­mains ahead in his Se­nate bid as of early Wed­nes­day, and Florida’s gover­nor-elect Ron DeSan­tis. Both ar­gued the amend­ment was too broad, although it ex­cludes any­one con­victed of mur­der or sex­ual crimes.

In the end, Amend­ment 4 eas­ily crossed the state’s 60 per­cent thresh­old — a vic­tory that should stand as a re­buke to decades of ra­cial op­pres­sion, said Paul­son.

“It has been a real em­bar­rass­ment for Florida to be leader in keep­ing peo­ple away from vot­ing,” Paul­son said. “The United States should do ev­ery­thing hu­manly pos­si­ble to make vot­ing as ac­ces­si­ble as pos­si­ble to ev­ery­one.”

WIL­FREDO LEE/AP

Peo­ple gather around the Ben & Jerry’s “Yes on 4” truck as they learn about Amend­ment 4 ahead of Tues­day’s elec­tion.

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