Election Supervisors Are Told Felons Must be Allowed to Cast Regular Ballots, Not Provisional

Attorney Ron Labasky sent an email to supervisors after lawyers for voting-rights advocates raised an alert about possible problems encountered by felons trying to cast ballots during the early voting period, which ends Sunday.

“Under the existing process, the supervisor, in my opinion, has to just go ahead and provide you (the felon) with a regular ballot, unless somebody has filed an actual challenge to your status and then, pursuant to the statute, you would be provided a provisional ballot,” Labasky, general counsel of the Florida Supervisors of Elections association told The News Service of Florida on Thursday.

Labasky’s update to supervisors was the latest twist in the convoluted saga of a 2018 constitutional amendment, known as Amendment 4, that restored voting rights to Florida felons “after they complete all terms of their sentence including parole and probation.”

At the heart of legal wrangling has been a 2019 state law requiring felons to pay “legal financial obligations” — fees, fines, costs and restitution — associated with their convictions to be eligible to vote. Republican lawmakers said the law implemented the intent of the constitutional amendment, but opponents maintain that linking voting and finances amounted to an unconstitutional “poll tax.”

Siding with Gov. Ron DeSantis on Sept. 11, the Atlanta-based 11th U.S. Circuit Court of Appeals upheld the law.

The appellate court’s ruling also said that 85,000 Floridians whose voter-registration applications had been flagged as felons with outstanding financial obligations should be allowed to vote in the upcoming election.

But conflicting court rulings and incomplete or contradictory records have made it difficult for many felons and their advocates to determine whether they have outstanding financial obligations that would make them ineligible to vote.

State Division of Elections Director Maria Matthews may have amplified confusion over felons’ voting status this month when she sent a missive to county supervisors that said convicted felons with outstanding court-ordered debts will be included in lists of flagged voters who should potentially be removed from the rolls.

Under a process that’s long been in place, state elections officials screen voter-registration applications for eligibility and send lists of flagged people to county supervisors of elections. Local officials have the authority to remove ineligible people from the voting rolls.

Matthews’ Oct. 13 message came as 2.2 million voters had already cast mail-in ballots in the Nov. 3 presidential election and just before the state’s early voting period began. Florida law requires supervisors to notify voters and give them an opportunity to prove they are eligible to vote before being removed from the rolls, a process that can take weeks.

This week, the American Civil Liberties Union of Florida’s lawyers learned that a handful of felons who had registered to vote in Columbia County were given provisional ballots. The ACLU, which has been a key backer of restoring felons’ voting rights, contacted Columbia County Supervisor of Elections Liz Horne’s office and inquired about her procedure.

The ACLU’s lawyers pointed to part of the Sept. 11 ruling that was based on testimony by state elections officials this year.

In an email to the ACLU on Wednesday, Columbia County Attorney Joel Foreman said Horne had given eight voters provisional ballots based on guidance from the state Division of Elections.

The supervisor’s staff “interpreted the direction from the division to mean that those with unpaid LFOs (legal financial obligations) were and should be considered ineligible to vote. The provisional ballot process was employed to avoid the irreparable harm that would have occurred if the voters were turned away from the polls outright,” Foreman wrote.

After reviewing the appellate court ruling, however, Foreman quickly reversed the policy and said Horne’s office would no longer give provisional ballots to felons who might have outstanding court debt.

“Based on that review I am now instructing the supervisor that those individuals who registered in the belief that their rights were restored pursuant to Amendment 4 and are now appearing on the voter rolls (members of the roughly 85,000 registered voters discussed by the court) must be permitted to cast their ballot without separate inquiry into their eligibility due to unpaid LFOs or otherwise invoking the provisional ballot process…,” he wrote, underlining the word “must.”

After receiving Foreman’s response, ACLU lawyer Daniel Tilley reached out to Labasky and said the county lawyer “was extremely helpful” in clearing up the process in Columbia County for felons, whom advocates refer to as “returning citizens.”

But “other supervisors might be facing the same confusion,” Tilley wrote to Labasky in an email Wednesday.

“It seems clear to us from this interaction that the guidance (or lack thereof) from the Division of Elections is causing some SOEs (supervisors of elections) to believe that the 11th Circuit ruling permits SOEs to deny the vote to registered returning citizens who have not — to date — been removed from the rolls. Although it is true that some of the returning citizens with outstanding LFOs who are currently on the rolls may be removed at some later time — once the proper statutory procedures are followed — until the state comes forward with sufficient evidence and those returning citizens are provided the process they are due to contest their removability, no returning citizen should be turned away from the polls or told to vote a provisional ballot, regardless of whether they owe LFOs,” Tilley wrote.

Labasky responded by emailing county supervisors Thursday in a message that also included the court’s instructions about the 85,000 flagged voters.

He pointed out that Matthews’ message to county officials this month also noted that “if a file is sent to a county, the notice and due process requirements” of Florida elections law “applies prior to removal of any voter.”

In a telephone interview, Labasky said he was unaware of any other counties that had been providing provisional ballots to felons who believe they are eligible to vote. He sent the message to supervisors to clarify the situation, he said.

Matthews’ message may have added to supervisors’ confusion, Labasky acknowledged.

“It’s possible that people just superficially read it and said, ‘We’re going to start challenging some people,’” he said.

–Dara Kam, News Service of Florida