To a naive observer — or to lawyers who may know too much for their own good — the Florida Supreme Court’s decision this week denying voting rights to formerly incarcerated people was a perfectly reasonable exercise of judicial interpretation. Yes, the people of Florida voted in November 2018 to re-enfranchise “returning citizens.” But the constitutional amendment 65 percent of Floridians supported was simply too “ambiguous.”
The measure promised to restore the franchise to people with felony convictions “after they complete all terms of their sentence.” Asked by Republican governor Ron DeSantis what this could possibly mean, the state’s Supreme Court relied on such authorities as Antonin Scalia, the American Heritage Dictionary, and “common sense” to conclude that the people of Florida clearly intended to deny the vote to those who have been released from prison, but who can’t afford to pay fines, restitution payments, fees, and court costs.
In other words, Florida Republicans had a perfectly conventional justification for what they were up to — until DeSantis let the mask slip. Declaring victory on Twitter after the court published its decision, he gloated: “Voting is a privilege that should not be taken lightly.” If any confirmation was needed as to what DeSantis and his allies were up to, this was it: wielding the judiciary, along with the carceral state and its various offshoots, to criminalize poverty and formalize minority GOP rule in Florida and many other states as well.
There is still a chance that the ruling could be mitigated or reversed. The ACLU has filed a lawsuit that is now on appeal in federal court, arguing that the justices’ interpretation of the Florida amendment — also expressed in a state bill that passed last year — effectively creates an illegal poll tax. A federal judge endorsed the ACLU’s position last fall, so it is possible that the higher courts might overrule the Florida approach as a violation of the Constitution.
But those who believe in democracy and, indeed, socialism should not wait for the federal courts to undo Republican disfranchisement. Not only have progressives long overestimated the judiciaries’ pro-democracy inclinations, but is it highly doubtful that this Supreme Court would feel compelled to rule against Florida’s suffrage restrictions. As the Florida court observed in its opinion, plenty of states have forced formerly incarcerated people to pay off all monetary obligations before regaining the ability to go to the ballot box. Modern-day “poll taxes” are well within the bounds of contemporary legal norms. And even if the ACLU were to win its lawsuit, restoring voting rights to those who have not paid off fines, fees, and the like, Florida would still bar those convicted of murder and sexual offenses from casting a ballot, making it one of the most restrictive states in the country.
As we have seen time and again, achieving democracy will require more than simply undoing the Right’s latest attempts to undermine it.
Fortunately, liberals, progressives, and democratic socialists these days are increasingly aware that Republicans are both structurally empowered by counter-majoritarian institutions like the Electoral College, the Senate, and the Supreme Court, and actively committed to a program of disfranchisement and voter suppression. Stacey Abrams, for example, quickly became a rising star in the Democratic Party (and nearly every candidate’s presumed vice presidential pick) thanks to her efforts to increase voter registration in Georgia.
Less fortunately, few Democrats are embracing more radical measures to expand democratic participation. Of all the presidential hopefuls, only Bernie Sanders has supported ending all voting restrictions based on criminal history, including for those still in prison or jail (only Vermont and Maine allow this, despite it being commonplace in other developed democracies). For his temerity, he was attacked by his Democratic rivals, who accused him of wanting to enfranchise Boston Marathon bomber Dzhokhar Tsarnaev. Similar charges have been hurled at reformers such as Philadelphia district attorney Larry Krasner — by Pennsylvania Democrats as well as Republicans — who try to enact even modest rollbacks of the carceral state that makes this disfranchisement possible.
If Sanders has been a leader on the issue of felon enfranchisement, he has also been the most committed to mass voter turnout. Since he first ran for the presidency in 2016, the core aim of his campaign strategy has been to “significantly increase voter turnout so that low-income people and working people and young people [participate] in the political process.” And along with Andrew Yang, Tulsi Gabbard, and Pete Buttigieg, Sanders has also said he is “open to” lowering the voting age to sixteen.
But why not go further than this? Why not, for instance, extend the franchise to noncitizens? As Ron Hayduk has argued: “all residents are part of the political community in which they live and should therefore have a say in the local, state, and federal laws to which they’re subject. Without the means of choosing representation, noncitizen immigrants are a nonvoting caste — disenfranchised pariahs in their adopted country.” While enfranchising noncitizens is currently barred by statute at the federal level, it would be perfectly legal for states and municipalities. And on top of being the right thing to do, it would also be a possible way to expand progressive coalitions.
The stakes could not be clearer in US politics today. On one side are people like Ron DeSantis and Donald Trump, seeking to entrench oligarchic minority GOP rule through the courts and the carceral state. On the other side are those who actually believe in democracy. For the most part, liberals, progressives, and democratic socialists alike know that to defeat the Right, they will need to fight to expand democracy. But while the Democratic establishment remains reluctant to embrace radical democratic reforms, the Left has an opportunity to lead this fight.