[Robert Peoples remembers when African Americans won the right to
vote in Alabama back in 1965. More than 50 years after the passage of
the Voting Rights Act, Robert Peoples cannot vote in the state of
Alabama. ] [[link removed]]

A POLL TAX BY ANY OTHER NAME  
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Dana Sweeney
July 9, 2020
Facing South
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_ Robert Peoples remembers when African Americans won the right to
vote in Alabama back in 1965. More than 50 years after the passage of
the Voting Rights Act, Robert Peoples cannot vote in the state of
Alabama. _

"Why would $300 keep me from voting?" asks Robert Peoples of Mobile,
Alabama., Dana Sweeney

 

Robert Peoples remembers when African Americans won the right to vote
in Alabama back in 1965. Though he was only 13 years old at the time,
he had grown up in Mobile with a front-row seat to history as it was
forged by a generation of ordinary Alabamians who won extraordinary
political changes during the Civil Rights Movement. He knows how much
was sacrificed and how much was gained, but that was another day.
Today, more than 50 years after the passage of the Voting Rights Act,
Robert Peoples cannot vote in the state of Alabama.

More than two decades ago, Peoples was convicted of a felony after
writing and signing checks that did not belong to him. He was
sentenced to 12 years in an Alabama prison. When Peoples finally made
it out of state supervision, he left Alabama to find work and build a
life elsewhere, but home always called him back. When he returned in
2012, one of the first things he did was fill out a voter registration
form at the local DMV.

A voter card arrived in the mail ⁠— but it was followed by a
letter from the Alabama Bureau of Pardons and Paroles. The letter
stated that Peoples could not vote until he paid about $300 in legal
financial obligations ("LFOs," which include court fines, fees, and
restitution) that lingered from his decades-old conviction. He lives
paycheck to paycheck and doesn't know when he will be able to pay it
off. He doesn't know that he ever will.

"Why would $300 keep me from voting?" Peoples asks. "Voting can't hurt
nobody."

Peoples is not alone: He is just one among hundreds of thousands of
people who Alabama has stripped of voting rights, and among tens of
thousands that the state now says need to pay up if they ever want to
cast a ballot. According to the most recent data
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from The Sentencing Project, more than 286,000 Alabamians have been
told that they cannot vote because of past felony convictions. This
number accounts
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for 7.6% of Alabama's entire otherwise-qualified voting population,
and it includes 15.1% of the state's African American population.

Alabama is one of 31 states that have some level of felony
disenfranchisement. Many Americans have at least passing knowledge of
the practice, which was a significant topic early in the Democratic
primary. Still, fewer are aware that in the past several years, states
like Alabama and Florida have adopted a modern-day poll tax approach
to prop up rotten disenfranchisement schemes.

Alabama didn't get here overnight. The state's systematic use of
felony convictions as a vehicle for disenfranchising voters en masse
— particularly African American voters — has a long history. In
1901, Alabama held a constitutional convention that produced the
document, which (in amended form) still governs the state today.

"[W]hat is it that we want to do?" the president of the convention
asked
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the delegates in his opening address. "Why, it is, within limits
imposed by the Federal Constitution, to establish white supremacy in
this State."

They succeeded. Alabama still lives with the consequences.

The 1901 constitution established a suite of mechanisms
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designed to disenfranchise African Americans in the state, including
the now-illegal tools of poll taxes and literacy tests. But the
constitution contained another disenfranchising instrument
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It prohibited anyone convicted of vagrancy or a "crime of moral
turpitude" from having the right to vote. This tactic of exclusion by
conviction went hand in hand with the convict leasing practices
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state during this era by enshrining the arbitrary arrest, prosecution,
and conviction of African Americans as a means of post-Reconstruction
subjugation. While the legislative and jurisprudential victories of
the Civil Rights Movement voided many other disenfranchising
provisions like literacy tests and poll taxes, neither the Supreme
Court nor Congress
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the practice of felony disenfranchisement to violate the law. So in
Alabama, it continues. And it all hinges on two words introduced by
the state's 1901 constitution: "moral turpitude."

Because the Alabama code did not specify which convictions met this
condition, decades passed with no consistent statewide policy for
determining who among people with convictions was eligible to vote.
Without that clarity, an uneven landscape was created where boards of
registrars across the state's 67 counties made the determination for
themselves
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Though the state finally passed a law in 2017 codifying which
convictions count as disqualifying "crimes of moral turpitude" and
offering a pathway to voting rights restoration for most people who
have them, they did so after years of arbitrarily disenfranchising
hundreds of thousands of voters who would have never lost their rights
at all under the terms set out in the new law. And even under the new
law, people who are disenfranchised because of felony convictions can
only hope to have their voting rights restored if they pay off all of
the debt connected to their disqualifying "moral turpitude"
conviction.

Among the hundreds of thousands of Alabamians impacted by the state's
felony disenfranchisement scheme, awareness about the change in law is
low. In 2018, the Alabama Appleseed Center for Law & Justice surveyed
nearly 900 Alabamians who were paying LFOs on felony convictions,
misdemeanors, or violations across 41 of the state's 67 counties. More
than half of all survey respondents had been told by the state that
they would never be allowed to cast another vote. Because the state
government invested virtually no effort into notifying impacted
voters, more than seven in 10 of these individuals had not heard of
the change in law that provided a pathway for many of them to restore
their voting rights. Among the few impacted individuals who had heard
about the change in law, less than 5%
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had learned about it from the state.

Many of the 286,000 individuals who were disenfranchised under the old
scheme's undefined "moral turpitude" standard can, under the new law,
simply fill out a normal voter registration form at any time. But many
still do not know
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about this even years later. In the absence of leadership from state
officials, the work of voting rights restoration has been left to
grassroots efforts and community activists.

Pastor Kenneth Glasgow has been at the center of that movement for
decades. Glasgow is the founder and director of The Ordinary People
Society (TOPS), a voting rights and direct service organization based
in the small city of Dothan, Alabama. TOPS has been pioneering voting
rights restoration work since it was founded in 2003, and its team is
responsible for directly registering and restoring voting rights to
tens of thousands of currently and formerly incarcerated people in
Alabama. When you include the number of people whose voting rights
have been restored by policy and legal work that TOPS has done (such
as the landmark 2009 ruling in _Glasgow v. Allen_, which affirmed the
right of many currently incarcerated people to register and vote), the
number of people impacted by TOPS's work zooms upward beyond 100,000
people in the state.

"This is definitely a poll tax, and it is definitely discriminatory,"
Glasgow says of Alabama's requirement that people with "moral
turpitude" convictions pay off all connected LFOs before being
eligible to restore their voting rights. "They put a guise on it. They
just change the name and do the same damn thing."

Glasgow would know. He has decades of experience fighting felony
disenfranchisement not only in Alabama with TOPS, but across the
country as one of the founders of the Formerly Incarcerated, Convicted
People & Families Movement. Glasgow has filed — and won — lawsuits
related to the 1901 Alabama Constitution and played a central role in
the passage of the 2017 moral turpitude legislation. He notes that
"most of the secession states — the states that had slavery — have
a moral turpitude clause within their constitution." Felony
disenfranchisement was born as a white supremacist project. Though
many white people with felony convictions are caught in the net of
disenfranchisement today, racism manifesting in disparities at every
level of Alabama's policing and judicial system means that
disenfranchisement continues to operate in this way.

Glasgow's assertions of both racial discrimination and the role of
court debt as a modern-day poll tax are supported by the data. A
sweeping 2017 study
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by researchers at Harvard and The University of Pennsylvania found
that "the median amount of LFOs assessed to discharged felons in
Alabama across all of their criminal convictions is $3,956," and that
African Americans are 26% "more likely than non-blacks to have their
voting rights restoration applications denied because of outstanding
LFOs."

The lack of communication about the change in law and the confusing,
cumbersome hurdles posed by LFOs have led to abysmal reinstatement
rates in Alabama. In their FY 2018 report, the Alabama Bureau of
Pardons and Paroles reported that they received only 1,611
applications for voting rights restoration. Of these, they approved
merely 349 — an approval rate of 22%. An audit of voting rights
restoration applications in Alabama between 2000 and 2014, which was
included in the Harvard/Penn study, found that about a third of all
applications
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were denied solely because of outstanding debt.

Alabama's example shows how the fusion of disenfranchisement by debt
and failure to communicate about a change in law can confuse and
thwart engagement, but these tactics are not isolated to Alabama. In
2016, there were 30 states
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that made voting rights restoration contingent upon paying off LFOs,
and this disenfranchising mechanism has only recently begun to come
into public focus. In 2018, almost two-thirds of Florida voters
approved Amendment 4 at the ballot box, which was a historic
referendum designed to restore voting rights to the 1.4 million
Floridians who have felony convictions. When Amendment 4 passed, it
became the largest expansion of the franchise since the Voting Rights
Act of 1965. It came at a time when nearly one in five
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African American voters in the state had been disenfranchised. But not
everyone was happy about the idea of more ballots being cast in
quintessential swing-state Florida.

While Amendment 4 was written, intended, and approved by Florida
voters to straightforwardly clear the slate for 1.4 million Floridians
to regain their voting rights, Florida Republicans quickly muddied the
waters by claiming
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that the plainly worded ballot initiative required "enabling
legislation." Six months after the amendment passed, they seized upon
a favored backdoor tactic that had succeeded in suppressing voters in
other states whose felony disenfranchisement schemes had been
challenged, including in neighboring Alabama: They signed into law a
bill that required the payment of LFOs
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prior to voting rights restoration.

To contextualize the scale of this decision, it is worth noting that
the state of Florida imposed more than $1 billion
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in felony court fines between 2013 and 2018 alone. Florida, like
Alabama and many other states, largely funds its court system through
user fees. In this system, principally low-wealth residents of a state
become burdened with debt
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as a means of keeping courts solvent. People with low levels of wealth
(and particularly people of color with low levels of wealth) are
disproportionately likely to be policed, arrested, sentenced, and
assessed court debt. These structural burdens are compounded by racism
and the hurdles faced by people with felony convictions in the job
market. As a result, it is often very difficult for people with these
fines to pay them off. Less than 20 percent of all assessed felony
fines are collected
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in Florida. When Florida legislators made voting rights conditional on
the repayment of these debts, they knew they were setting up hundreds
of thousands of citizens for continued exclusion from the electorate.
They knew that they were, in effect, nullifying the expressed will of
the vast majority of Floridians. They also knew that the population
they were barring from the ballot was disproportionately composed of
people of color.

In response to the state's underhanded effort to continue
disenfranchising its residents due to unpaid LFOs, 17 impacted
Floridians filed suit in collaboration with the NAACP, the League of
Women Voters, the American Civil Liberties Union, the Southern Poverty
Law Center, and the Campaign Legal Center. These cases were
consolidated before U.S. District Judge Robert Hinkle, who in October
2019 denied the state's motion to dismiss the suit and granted a
limited preliminary injunction protecting the right of the plaintiffs
to vote. This ruling was upheld on appeal
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a three-judge panel of the notoriously conservative 11th U.S. Circuit
Court of Appeals, based in Atlanta, in February 2020. In April 2020,
Judge Hinkle granted class certification
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to the plaintiffs, meaning that the fate of hundreds of thousands of
Florida voters — and not just the 17 plaintiffs — was to be
determined in the case.

Finally, in May 2020, those plaintiffs won their case, _Jones v.
DeSantis_, on behalf of all disenfranchised Florida voters. In a
decisive ruling, Judge Hinkle wrote that the Republican scheme to
condition voting rights restoration on the repayment of LFOs that
people couldn't afford violated the 24th Amendment, which says that
the right to vote of all citizens "shall not be denied or abridged by
the United States or any State by reason of failure to pay poll tax or
other tax." It is one of the few times a court has ever found a law to
violate the 24th Amendment, and the Brennan Center for Justice reports
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that it is the first time the 24th Amendment has ever been invoked by
the courts in the context of voting rights restoration for people with
felony convictions. "The court recognized that returning citizens
should not have to pay to vote if they are unable to do so — and
that certain legal financial obligations (LFOs) function today like
the unconstitutional poll taxes that states erected to lock black
people out of the political system decades ago," wrote
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Leah C. Aden, deputy director of litigation at NAACP Legal Defense and
Educational Fund, in a press release. It was a seismic decision that
recognized the connection between the poll taxes of Jim Crow and the
machinery of modern felony disenfranchisement.

For a few weeks, there was widespread celebration across Florida, and
people who had been repeatedly disenfranchised began to register to
vote. It seemed like the long fight was finally over. Then, in June,
the 11th Circuit took the rare step of voting to hear an appeal of
Judge Hinkle's ruling before the entire bench of judges on the
circuit. Worse still, they paired this unusual move with the order
that Judge Hinkle's ruling be put on hold until they hear and rule on
the state's appeal — which means that, for now, people who can't
afford to purchase their voting rights once again cannot register to
vote in Florida. It is the latest installment in the absurd, lurching
march of obstacles placed between hundreds of thousands of voters and
the ballot box. The 11th Circuit won't hear the state's appeal until
mid-August. It is an open question as to how long it will take them to
publish a decision after that hearing, but the deadline to register to
vote in the 2020 general election in Florida is Oct. 5. In addition to
sowing confusion and fear about registering to vote among people
caught in the limbo of this lawsuit, the 11th Circuit's decision to
hear the state's appeal means that months of precious time will be
lost for those helping to register formerly disenfranchised voters.

The good news is that there is still hope that the 11th Circuit will
concur with Judge Hinkle and the three-judge panel of its members who
have already reviewed the case. As tortured and frustrating as the
journey has been for voters impacted by Amendment 4 and all that came
after, there is still hope that people with felony convictions and
debt might soon unequivocally be able to vote in Florida.

But Robert Peoples does not live in Florida. Even if the 11th Circuit
comes back and affirms the rights of Floridians with felony
convictions to vote despite debt, it does not automatically mean that
Peoples will be able to. The city of Mobile sits at the top of Mobile
Bay along the Gulf Coast, not far west of Pensacola and tantalizingly
close to the invisible border beyond which people with felony
convictions may soon be able to vote. Still, many hope that this legal
win might change things.

"Florida is only going to touch the tip of the iceberg," predicts
Glasgow. If debt disenfranchisement is unconstitutional in Florida,
how can it be constitutional in Alabama, which is also in the 11th
U.S. Circuit Court of Appeals? Glasgow believes that movement
colleagues in Florida leading in this work, like Desmond Meade of the
Florida Rights Restoration Coalition, have set a precedent that will
flower into successful lawsuits across the country striking directly
at the heart of felony disenfranchisement. "We could change the whole
voting apparatus of this country," Glasgow says. It would not be the
first time that Southern activists had affected such a transformation.
"You have to look at the history and know that we already beat this
before," he adds. "Now we have to go back and make sure that we beat
it again." Indeed, the Campaign Legal Center has already filed a
motion in Alabama
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the Florida precedent. By their estimate, a similar ruling in Alabama
would impact somewhere close to 100,000 people who would be eligible
to vote but for LFOs still owed.

When Robert Peoples thinks about the letter he received from the
Alabama Bureau of Pardons and Paroles, there doesn't seem to be much
of a difference between the poll taxes of yesterday and the debt
disenfranchisement of today. "If you don't have the money," he asks,
"why shouldn't you be able to vote?"

And indeed, the disenfranchisement of voters by way of LFOs closely
resembles the poll tax — by historical origin, by disparate racial
impact, and by nature of requiring payment for the exercise of voting
rights. As the Tuscaloosa News of Tuscaloosa, Alabama, editorialized
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in 1939, "This newspaper believes in white supremacy, and it believes
that the poll tax is one of the essentials for the preservation of
white supremacy." The paper, like the rest of the white power
structure, understood and proclaimed that the poll tax was principally
a tool for maintaining Alabama's apartheid state. In the absence of
the poll tax, its fraternal twin — felony disenfranchisement —
grows to resemble it even more.

When Alabama's poll tax was struck down in 1966 in _United States v.
Alabama_, the celebrated U.S. District Judge Frank M. Johnson wrote
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in his concurring opinion that "financial ability has no place in a
test of voting eligibility and is irrelevant to a determination of who
is qualified to vote." More than 50 years later, as Alabamians and
other Americans numbering in the millions are told by their state
governments that they cannot vote if they cannot afford to pay up,
Judge Johnson's words amount to an unfulfilled vision haunting the
present. Florida is a major victory and a promising precedent for
activists who have fought felony disenfranchisement in recent decades,
but much remains to be won. Unless and until state legislatures or the
courts decide to prohibit debt disenfranchisement or, better yet, to
eliminate felony disenfranchisement altogether, our democracy will
continue to be tainted by the exclusion of millions of Americans.
Unless and until things change, LFOs will continue to function as poll
taxes in Alabama, and the long shadow of Jim Crow will continue to
extend from the 1901 Constitution to loom over the state.

"Alabama has never changed," Peoples said. "It seemed to change, but
it hasn't. It's modernizing. It's only getting worse."

_Dana Sweeney is an organizer at the Alabama Appleseed Center for Law
& Justice in Montgomery, Alabama. He recently completed a Puffin
Democracy Fellowship through The Andrew Goodman Foundation and
produced new research on the impact of Alabama's 2017 Moral Turpitude
Act and the persistence of felony debt disenfranchisement in Alabama._

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