A poll tax by any other name

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 from The Sentencing Project, more than 286,000 Alabamians have been told that they cannot vote because of past felony convictions. This number accounts 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 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 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: 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 of the 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 has yet found 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. 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% 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 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 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 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 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 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 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 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 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 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 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 by 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 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 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 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 citing 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 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 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."