What’s the Deal With Florida? (ep. 22)

November 15, 2018
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Florida seems perpetually to be at the center of the national conversation and news cycle. The current recount to determine the results of Florida's Senate and gubernatorial races is just the latest in a series of high-profile elections and attention-grabbing cases in the Sunshine State. This week’s guest, Howard Simon, has had a front row seat to it all as the executive director of the ACLU of Florida for over 20 years. We’re asking Howard for his insights into a state that reflects a lot of the divisions in this country.

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LEE ROWLAND
[00:00:00] I'm Lee Rowland. Welcome to At Liberty: the podcast where we discuss today's most important civil rights and civil liberties topics. Today: What's the deal with Florida?

Ah, Florida. It’s the third most populous state, the nation's fourth largest economy and the earliest European settlement in the continental United States. It also seems to perpetually exist at the epicenter of the national conversation and news cycle. Our guest today, Howard Simon, has had a front row seat to the Florida show as the ACLU of Florida's longtime executive director. After 21 years in the Sunshine State and another two plus decades at the ACLU of Michigan before that, Howard is the ACLU’s longest serving state director. He's retiring this month on the heels of yet another eventful election in the state of Florida. And despite having left damn near half a century ago, Howard still proudly sports an unmistakable New York accent, which you are about to hear. Howard welcome to the show. We're delighted to have you here today to discuss what makes Florida tick.

HOWARD SIMON
[00:01:19] Thank you, Lee. It's always a pleasure to speak with you.

LEE
[00:01:23] So I want to just ask you first for your reaction to this recent election in Florida. What do you make of what we saw in the midterms?

HOWARD
[00:01:31] Well it was — this being Florida, of course, it's puzzling. It’s very, very, very interesting. People have to understand Florida is several different states squeezed together within one boundary line. I mean we’ve got the old south, and the Midwestern retirees, and the refugees from chaotic politics and economy in Central and South America, and northeastern retirees and so many different states squeezed together, and it makes for a very, very puzzling state. One of the things that is so puzzling is that is that we may have had a Republican governor elected and a Republican senator elected.

Those votes were virtually 50/50. At the same time, about 65 percent of the voters voted for a constitutional amendment that we have worked on for years and years and years to end the system of lifetime felon disenfranchisement. So, way more people voted for the constitutional amendment to restore the right to vote than voted for the candidates who were the champions of the restriction on the right to vote.The real story here, I think, is Florida is just such an ideologically divided and polarized state. It's virtually 50/50. One of the comedians quipped that if there was a measure on the ballot in Florida between a free scoop of chocolate ice cream and a kick in the head, the chocolate ice cream free scoop may win by about fifty point one to forty nine point nine.

LEE
[00:03:22] So OK I buy that. How the hell did the ballot initiative restoring voting rights to people with felony convictions get 65 in that environment? What are your thoughts about how that resonated with two thirds of the electorate?

HOWARD
[00:03:38] Well, I feel really good about that, obviously. I've worked on this issue for, here in Florida for 18 years, since the disputed 2000 election. And I think the real reason is that we would not have won without conservative votes, obviously, and we got those conservative votes by making this campaign only around a single moral issue, the issue of second chances, and because it was restricted to that we were supported by the Christian Coalition, Koch brothers Freedom Works, the Conference of Catholic Bishops — this was the broadest coalition coming to support any measure that I can recall in history.

LEE
[00:04:28] Do you think there is a lesson there, or hope on the horizon for other criminal justice issues — or even beyond — that that really focus on this kind of message of moral clarity?

HOWARD
[00:04:39] Oh yeah. There is a lesson here. There is a lesson about finding a message that appeals across the board and have the discipline to stick to it. And so that you don't alienate allies who you really need. I mean in Florida, as I said, the Republican governor ran for the US Senate. He was the champion of the atrocious status quo that led to the lifetime voting ban for maybe one point five million people.

He got about 50 percent of the vote. But the number of people who voted to reform that system — essentially repudiating what the governor is responsible for — was 65 percent of the electorate. You can only win by a broad based, across-the-aisle ideological coalition, and that I think is a message in here.

LEE
[00:05:38] What comes next, Howard? Are there concerns about how state officials are going to actually apply this constitutional amendment, now that the voters have passed it?

HOWARD
[00:05:46] Well, that's a really good question. It was not 24 hours until the next controversy started. And the next controversy was about whether the legislature was going to try to insert itself, whether state officials, whether the secretary of state, the Division of Elections, any public official would erect barriers. So here's the problem: the problem is that state leaders, namely 20 years of conservative governors and 20 years of legislature hostile to the extension of voting rights, have opposed this measure.

But the measure was written — and I was on a committee of three people that spent a year and a half crafting this language — the measure was written to be about as self-executing as possible. It does not need, in fact it is intended to exclude, any role for the legislature, any role for state officials. People who have a felony conviction and who have completed all the terms of their sentence, on January 8th when this new measure goes into effect, should be able to go down to their Supervisor of Elections and affirm that their rights have been restored, because on Tuesday, Election Day 2018, their rights were restored. Now that's our position. I'm sure the legislature will push back and we'll see how that how that unfolds. And that may now move from the electoral arena to the legislative arena to maybe ultimately the courts.

LEE
[00:07:24] Assuming that this does result in the re enfranchisement of a significant number of people — up to the one point four million eligible — how do you think that's going to change the nature of elections going forward in Florida?

HOWARD
[00:07:38] I do think this is a transformative change in Florida. It will change Florida forever. The system of lifetime felon disenfranchisement which has been embedded in our Constitution for 150 years — it's embedded in the constitutions, it was, in four states now just three, but, Iowa Kentucky, Virginia, and Florida, but no longer in Florida — it is going to transform our state. Exactly how it will transform our state, I want to say nobody really knows, because nobody really knows what the political leanings are of the one point four million who may be re enfranchised. If you read the newspapers you'll notice that Florida has close elections. If only 10 percent…

LEE
[00:08:31] I think you're conscious and alive in America you know that Florida has close elections.

HOWARD
[00:08:34] Right. if just 10 percent of the people who are newly re enfranchised decide to participate in democratic elections that's 140,000 new voters. But I think it will be much larger than that. But nobody knows what the political leanings are. And anybody who does I think is pretending. I do think it will play a role — I hope it'll play a role — in the next general election which is 2020.

LEE
[00:09:04] So to say that there are close elections in Florida is probably a comical understatement. As we're sitting here talking, both the races for U.S. Senate and Florida governor are still being tabulated. I've seen many allegations in the media that elections are not running as they should, right, either because of ballot design or because of manual counting problems. And this sounds so familiar, especially for those of us that were alive and paying attention in 2000. This is a very similar refrain. Are Florida elections fundamentally administered in a dysfunctional manner? Or is it only because it's so close every time, and the nation is always watching, that we kind of get a view of how the sausage is being made in the days after elections? Has Florida changed at all since the 2000 debacle?

HOWARD
[00:09:56] Yes. Oh my God, it has. There’s so much to say about this. First of all, number one, you have to factor in, there's maybe a good deal of incompetence — you referenced that already. But you also have to reference the fact that some of this is normal and not the fault of election administrators — meaning by that, that when people vote a provisional ballot, or when people’s mail-in ballot has a signature problem, those have to go to a what's called a Board of Canvassers, county by county, and they have to make an individualized judgment about whether every ballot counts. That's part of the system — that, that's part of a law.

I have to say that this is exposed because the elections in Florida are so close — because the population in Florida is so ideologically divided. I would bet you if you scratched the surface in any state, there are going to be problems in election administration. Problems in election administration are exposed when you have very close elections.

I do want to say this, as bad as it may sound now, it has gotten so much better. I think in the 2008 election was the first time that everybody in Florida voted using the same technology. The 2000 election was run by the flawed punch-card system and with the hanging chads. That was replaced by the paperless ATM-type machines in which a recount is impossible. And we went to the legislature after there were so many problems with the paperless A.T.M. machines that we got the legislature and the governor to fund the transition to what is a kind of paper-based fill in the bubble optical scan reader system. So there are far fewer — I know this may sound hard to believe — but far fewer problems with Florida elections now than there were many years ago.

LEE
[00:12:08] Well, I suspect we could fill up the entire podcast easily just talking about the dysfunction and spectacle of Florida elections. But you've had such a kind of rich view of far more than just elections in your time at the ACLU. We've mentioned Bush v. Gore. That was obviously a gangbusters case that riveted the nation. But it's by no means the only stand out. You guys had the high-profile right to die case involving Terri Schiavo, the Elian Gonzalez case, a precursor of family separation. You know, The Onion has a recurring character named “Florida man” to embody I think what are the most ridiculous political stories about America and America's particular dysfunction. It feels to me that Florida has an above average percentage of the American news cycle. Does it feel like that living there too?

HOWARD
[00:12:59] Oh my God yes. So many journalists here have written books about collecting all the crazy stories of Florida. Yes, there are many of them — which means that the fight for civil rights and civil liberties is just essential here, because there is so much crazy stuff. You know, like, a former governor, Jeb Bush, outrageously using the machinery of government to sustain someone artificially against her wishes as was found by the courts in the Terry Schiavo case that you mentioned.

LEE
[00:13:35] Can you tell folks a little bit about that case? t's been a while now, we may have listeners who who don't know who Terry Schiavo is. Tell us about her.

HOWARD
[00:13:40] Well, she had a catastrophic accident, collapse, essentially was in a vegetative state for years. There was a family dispute between, basically, between the brother and the husband and parents. And after six years of litigation -- six years -- a conservative, Republican, Baptist judge in the St. Petersburg area determined from her expressed statements, that she would not have wanted to be sustained artificially in a persistent vegetative state, and allowed for the machinery to be withdrawn and allow her to die peacefully. At that point, Governor Jeb Bush — exercising, I think, was some combination of political and religious ideology — got authority from both the Florida state legislature and the United States Congress and his brother who was then president George Bush, to use the machinery of government to essentially seize her and insert a feeding tube. I mean this is a sad, horrible, tragic story. The autopsy ultimately revealed that she had been braindead for quite some time. This was just maybe the worst abuse of, of governmental power I can recall.

[00:15:05] But look, that's a sad saga. There are a lot of things to celebrate here in Florida. We, we in Florida — we were I think the last state to have a ban on on adoptions by otherwise qualified lesbians and gay men. We ended that. We ended the ban on same sex marriage six months before the U.S. Supreme Court recognized that as a right of people nationwide.

LEE
[00:15:31] I think folks might be surprised to hear that Florida was the last state to maintain a ban on adoption by same sex couples.

HOWARD
[00:15:41] Well, Florida was where political homophobia began. It began in the 1970s with Anita Bryant, the orange juice queen, in the late 1970s — I think it was 1977, maybe. The Miami-Dade County Commission was one of the first jurisdictions to enact a comprehensive human rights ordinance extending civil rights protections to the LGBTQ community. Anita Bryant led a movement to overturn that by referendum, went to the legislature and got the legislature to impose a ban on adoptions. And it took more than 20 years to overturn, to get the Miami-Dade board of county commissioners to re-enact the human rights ordinance. And it took the ACLU about five lawsuits and eight years of litigation to overturn the adoption ban.

LEE
[00:16:40] Wow. I would never have guessed that Florida was the place we could pinpoint as kind of the birthplace of political homophobia. Where does the state sit generally on other social justice issues?

HOWARD
[00:16:54] Well, it's firmly up for grabs.

LEE
[00:17:00] Forty nine point nine to fifty point one?

HOWARD
[laughs.] No what I mean by that is we have a strong state constitution. We are one of about, I think, a dozen states that have a separate, freestanding constitutional right of privacy. That right of privacy was written and drafted by a state senator who was a former ACLU board member and it was adopted by the people in 1980. And that right of privacy has been used by us for years, decades to strike down restrictions on women's access to abortion. We have a strong separation of church and state clause, maybe about 36 states have this, about prohibiting monies for churches and sectarian institutions. And the Florida Supreme Court has been the one institution that has been a bulwark against efforts by governors and efforts by the legislature to essentially ignore the right of privacy and the state requirement of separation of church and state. Whoever is the new governor will be appointing three new members of the Florida Supreme Court which is going to change the Florida Supreme Court and maybe change, maybe change, the understanding of Florida constitutional issues for a generation. So that's why I say we're in the camp of totally up for grabs.

LEE
[00:18:37] What about immigration? I've seen some studies that indicated in this past midterm election that immigration was ranked as a number one or number two issue for a majority of Floridians. But I presume that, immigration feels a little different in Florida. How do people think about immigration given Florida's complex makeup? And, you know, how have you heard people respond to the immigration debate largely centering on a wall across the southern border?

HOWARD
[00:19:05] Well, I have to tell you, in all honesty, it depends on where you're asking that question. If you're asking that question in north Florida I think there's been a lot of exploitation of this fear of immigrants coming to take our jobs and reduce our wages and things like that. If you're talking central Florida, central Florida, you know, the businesses are dependent upon immigrants. If you're talking about South Florida in, especially Miami-Dade County, where so many people are born elsewhere and many of them are born in other countries.

It's an interesting political battle within the Florida Republican Party, because when the Florida Republican party tries to repeat some of the hateful things about immigrants and immigration that come out of this White House, there's some resistance to it in South Florida. So we have not been one of those states that have passed really horrible anti-immigrant laws. Mainly because of the resistance to that by the South Florida and Miami Republican caucus in our legislature.

LEE
[00:20:17] There's another moment from 2000 that feels really current in this moment that involves the separation of an immigrant child from his parent. Can you tell us a little bit about who Elian Gonzalez is and what happened to him in Florida?

HOWARD
Wow. Well that was a worldwide story, too, that that happened here.

LEE
Don’t so many of them, Howard?

HOWARD
[00:20:42] Thousands of immigrants from Cuba risked their lives in small boats that were overturned and were killed in the Straits of Florida and so on. And that's what happened to Elian Gonzalez's mother.

And he was found by people out fishing and he was in an inner tube. And he had relatives in Miami. He was put in what was supposed to be the temporary care of his Miami relatives, because he had a father back in Cuba. And this led to — I mean this was all symbolism about whether he was going to be returned to his father, which many of the Cuban community here in Miami saw as a victory for Castro; or whether he would stay in Miami and, which could be a victory for the exile community. Ultimately, because the relatives refused to surrender him, the attorney general then Janet Reno had to essentially raid the house of the relatives and seize the child and reunite Elian Gonzalez with his father who then took him back to their home in Cuba.

LEE
Did the ACLU take any position or play any role in that case?

HOWARD
Yes, we did. Defending the ACLU I want to say, with a great amount of pride, that we came down squarely on both sides.

LEE
[laughs]

HOWARD
[00:22:13] And let me say what I'm what I mean by that. The first issue is: does an unaccompanied minor have access to the courts to seek asylum? That was the legal issue that was in the federal courts. The attorneys for the family argued that, “wait don't quickly return him to his father and send him back to Cuba. This is an unaccompanied minor and an unaccompanied minor should have access to the federal courts in order to be able, or with some, with help, and someone on his behalf seek asylum in this country.” And we argued that of course unaccompanied minors should be able to assert asylum. But, once he asserts asylum, the issue is do the rights of parents intervene? And there was no evidence whatsoever that this father was a bad father. He did not abandon him, did not abuse him, and should not be deprived of his right to his child. So, yes, the child should have access to the court, but the father should be reunited with the child because there was no evidence of abuse, abandonment or neglect. So that's what I mean that we we came down squarely on both sides.

LEE
What was the public reaction — at least in Florida about what should happen to this little boy Elian? And do you think now in retrospect there were any omens or echoes of our current family separation crisis?

LEE
[00:23:44] Well, I want to say I think the Elian Gonzalez saga changed Florida in many ways. I am the last person to try to pretend to speak for the Cuban-American community in Miami. So I am, please, I am not doing that. But I do know that the major organization for representing the exiled community in Miami — the Cuban American National Foundation — essentially imploded after the Elian Gonzalez case, because they came to realize from the polls that the overwhelming majority of the non-Cuban community — the Black community, the non-Cuban Hispanic community — overwhelmingly thought that the child should be reunited with his father. And the Cuban community in polling showed that Elian Gonzalez should be allowed to stay in this country and essentially separated from his father. This came as shock waves, I think, to the Cuban-American community here in Miami, and they realized how out of touch they were with the rest of the community and the rest of the country. And that organization went into several years of rethinking. And your question is interesting and I have to confess I don't know the answer and I would love to know the answer as to whether or not it reverberated with the Trump, cruel and mean child separation policy that is going on right now.

LEE
[00:25:20] Howard, you describe Florida as a bunch of states mashed together. I'm paraphrasing but I hope that's pretty fair.

HOWARD
Yes, I think that’s true. There’s no way in the world it could be one state.

LEE
Right. I mean, hey, it's a Gulf state and an eastern seaboard state. There are no other states that do that, right? It's actually tied with Ohio as the state that has most frequently matched the national pick for president, at least since the beginning of 20th century, since folks started keeping these stats. And I think Florida's vote for president has different only twice from the National pick since 1928. That's a pretty good run. Do you think of Florida as a bellwether, a predictor of how the rest of the country is going?

HOWARD
[00:26:01] Well I think you make a very good point because Florida is so ideologically polarized and the country is so ideologically polarized. But Florida, I think, is in many respects the face of the emerging America, especially Miami. It is, it is such a diverse state. It may be the most diverse state. I think South Florida may be competing with Los Angeles, not even New York, as maybe the most diverse area of the country. It is the face of the emerging America. And in that respect Florida does reflect, I think, the rest of the country.

LEE
Howard, you are retiring after your 20 years of service to the ACLU of Florida. Is there...

HOWARD
[00:26:47] Well, let me, if I can step in there for a second.

LEE
Surely.

HOWARD
Twenty one years in Florida, and twenty three years prior to that as executive director of the ACLU of Michigan.

LEE
Well, I'm glad you mentioned Michigan, because I actually want to ask you: You spent 20 plus years leading the ACLU in both states. How would you compare those gigs? Do civil liberties look the same in Michigan and in Florida? I realize they were in different time periods too, so I don't mean to compare apples and oranges, but what would be your main takeaway doing civil liberties advocacy in those two jobs?

HOWARD
[00:27:22] Michigan, you know, like a lot of the upper Midwest — Wisconsin, Minnesota — they come out of the progressive tradition, the labor union tradition. The ACLU actually in Michigan grew out of the UAW. And so there are some deep progressive roots there in the labor unions. Florida is a new state. It's an invented state. You walk around Florida and it’s hard to find people who are born in Florida. And Florida is that, is like a newly emerging state without that kind of history, and it is a far more conservative state. I mean you go you go north of Orlando and you are back into the Deep South. I know Michigan has rural areas that are pretty conservative. But there is no part of Michigan that is the remnants of the Deep South. Let's take what we started talking about, on restoration of voting rights. I don't think it would have been contemplated in Michigan that people would be blocked from voting for the rest of their lives. Florida was a Confederate state and Florida had to figure out how to rob the freed slaves of any political power. There are significant differences between Florida and Michigan.

LEE
[00:28:40] Is there a standout career highlight for you?

HOWARD
[00:28:42] Oh my God there's so much. Just saving the right of privacy, by one vote, in the constitutional revision commission that meets only every 20 years that happened this spring.

LEE
[00:28:55] My God, that’s like constitutional brigadoon! It only meets every 20 years?

HOWARD
[00:28:59] Every 20 years a constitutional revision commission meets, and they have the power to place constitutional amendments directly on the ballot. There was a proposal to essentially radically shrink the right of privacy and that proposal lost by one vote. Oh my God. I was so shocked and elated at the same time. But I'm lucky, because the very last thing I worked on may be changing Florida forever by ending the system of lifetime felon disfranchisement and restoring the right to vote for as many as one point four million people.

LEE
What are you looking forward to most in your retirement, Howard?

HOWARD
[00:29:39] Umm, figuring out how to stay as politically active as I can. Democracy around the world and here in the United States is on the defensive. This scapegoating of immigrants. I mean this wasn't dreamt up by our president. He took a page out the playbook from European politicians where it's working in Hungary and Poland and Italy and places like that. Democratic values are on the defensive, and I'm going to try to figure out a way to be as politically active as I can be to defend the values of democracy that brought me to the ACLU maybe 50 years ago.

LEE
It sounds suspiciously unlike retirement, Howard, but I suspect that the people of Florida are lucky for your view of retirement. Thank you so much for joining us today, Howard, and giving us your your bird's eye view of a life in Florida.

HOWARD
Thank you so much. Appreciate it.

LEE
[00:30:49] Thanks for listening to At Liberty. Be sure to subscribe wherever you listen to podcasts. And if you can, write us a review — we’d love to hear your feedback.

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