Florida, Man!
The seemingly last chance America had to save its democracy died last week, primarily killed by a Republican party that no longer is interested in democracy, only power. Those 50 Senate Republicans were abetted by two Democrats whose objections were both purely procedural and so absurd they are barely worth dealing with. Suffice it to say, the Founders always believed in majority rule in the Senate and never considered requiring a super-majority to pass legislation. The filibuster was rarely used for most of its existence, and, when it was, it was primarily to do exactly what was done last week, namely to kill voting rights for Blacks and other minorities. It is only in the last thirty years that the filibuster has basically become the rule for virtually all legislation. The rules for the filibuster have changed over 150 times over the years, most recently just a couple of weeks ago in order to raise the debt ceiling. It has been nearly two decades since a truly significant piece of legislation was passed with significant bipartisan support. There is a reason that each party tries to throw everything plus the kitchen sink into reconciliation bills and that is specifically to avoid the filibuster. In addition, the rarity of last week’s public debate on voting rights and the filibuster only highlights the fact that the filibuster as currently designed and weaponized only inhibits real debate. The 48 Democrats who supported reforming the filibuster to pass voting rights represent 34 million more Americans than the 52 Senators who blocked them. Finally, the two Democratic Senators would be in an enormously powerful position to advance their own legislative agendas in a truly majoritarian Senate. That the two Senators refuse to do so and only offer procedural objections that are so factually inaccurate and easily rebutted makes one ponder what the two Senators’ real motivations might be and who they understand themselves to be really representing.
When imagining the anti-democratic future the Republican party envisions and which we appear destined to live in, one good place to look is Florida. The current governor, Ron DeSantis, is yet another of the surprisingly large group of proto-fascists that the Ivy League, that supposed bastion of conservative-culture-cancelling liberals, manages to produce on regular basis. In DeSantis’ case, it is Yale undergrad and Harvard Law. DeSantis is doing what every successful Republican must do these days and that is run to the right of whomever opponent they are facing. For DeSantis, that means being more proto-fascist than Donald Trump in his ultimate quest to secure the 2024 Republican presidential nomination. In order to truly own the libs and excite the MAGA base, DeSantis’ chosen policy to differentiate himself from Trump from the right is the response to Covid. DeSantis has claimed he regrets not speaking out against Trump’s recommendation to stay at home when Covid really began to hit in March 2020. He also blames Trump for relying on Fauci for Covid advice.
Unsurprisingly, then, the DeSantis’ administration is a fountain of vaccine misinformation and pandemic denial. DeSantis recently insinuated that the vaccine may cause infertility. A speaker at one of DeSantis’ press conferences declared that the vaccine “changes your RNA” as the governor stood directly beside him, endorsing that fiction with his silence and lack of rebuttal. DeSantis has also declared that a person’s decision not to get the vaccine “doesn’t impact me or anyone else”, a statement so radically false it negates the very concept of transmission. DeSantis has gotten vaccinated but treats any query about whether he has taken the booster as a “gotcha” question from the press. Rather than promoting the vaccine to prevent infection and transmission, DeSantis took the approach of providing monoclonal antibodies, which were actually being supplied by the federal government he decried, to those who had already contracted Covid. Interestingly, one of DeSantis’ top donors is a large investor in one of the companies that produce such treatment. Within the last few days, the FDA has blocked health care facilities from providing those monoclonal antibodies and the associated federal shipments because those treatments are not effective against the Omicron variant. DeSantis’ nominee to be State Surgeon General refuses to say that the vaccines are safe and effective.
Under DeSantis, the state government has tried to block virtually all Covid-related restrictions of any kind. He is opposed to vaccine mandates, even going so far as to say he will defy the recent Supreme Court ruling that allowed the federal vaccine mandate for health care workers in facilities that receive Medicare and/or Medicaid funds. The state has tried to withhold funding from school boards that have implemented mask mandates. Florida has passed a law that prohibits businesses and local governments from requiring proof of vaccination in order to be served. The Governor has tried to use that law to fine localities for implementing vaccine mandates. Florida also allows employees who have been fired because they refused to comply with vaccine mandates to apply for and receive unemployment benefits. The state recently put a top Department of Health official on leave simply because he sent an email to the department’s employees encouraging them to get vaccinated, writing, “I have a hard time understanding how we can be in public health and not practice it”. Researchers at the University of Florida apparently felt pressured to delete Covid data because it might reflect badly on DeSantis and result in retaliation from the DeSantis’ administration.
It is therefore hardly a shock that, in 2021, Florida had the third most Covid deaths of any state in the union, behind fellow vaccine skeptic Texas and pro-vaccine California. But Florida and Texas showed far higher per-capita deaths than more populous California, whose rate was actually below the national average, with Florida’s the highest of the three. An October Lancet study estimated that there were more than 22,000 unnecessary Covid deaths in Texas and Florida in 2021 due to the anti-vaccine and anti-mandate policies of those two states. That number is likely to get even larger when the remainder of 2021 is included and as deaths of the unvaccinated surge in the wake of Omicron.
DeSantis and the Republican-controlled state legislature are energizing the MAGA base in other ways beyond owning the libs by abetting in the deaths of thousands of their constituents. Florida originated the Stand Your Ground laws that essentially establish a license to kill as the Trayvon Martin case vividly illustrated. The Giffords Law Center reported that the implementation of that law in Florida “was associated with a 32% increase in firearm homicide rates and a 24% increase in overall homicide rates”. In addition, 68% of the victims in Stand Your Ground cases were actually unarmed.
In April 2021, DeSantis signed what he called the “strongest anti-rioting, pro-law enforcement piece of legislation in the country”. The bill allowed largely peaceful protests that have a small element of violence to be classified as “mob intimidation” or a “riot” with participants facing one or fifteen years in jail, respectively, whether or not the protester engaged in any violence or not. Damage to Confederate monuments or other historical property could result in a five-year jail sentence. Arrested protesters would be required to make a court appearance before they could post bail. Finally, the law provided criminal and civil liability protection for anyone who kills or injures protesters with their vehicle.
That bill was struck down by a federal judge last fall who wrote that the law was an assault on the right of free speech and free assembly as well as violating the Constitution’s guarantee of due process. The judge added that the bill was vague “to the point of unconstitutionality” and that it would “effectively criminalize the protected speech of hundreds, if not thousands, of law-abiding Floridians”. In response, and while still appealing that ruling, the state legislature has proposed a similar, but revised, law that more explicitly, but still expansively, defines a “riot”. Protests that create an “imminent danger” of injury or property damage could be considered a riot, as could impeding a vehicle on a street or highway with force or a threat of force. The “mob intimidation” piece of the prior law has been replaced with a potential year in jail for three or more protestors threatening the use of force to change a person’s point of view. The new bill only eliminates the criminal liability exemption for drivers who run over protesters if they feel threatened and the five-year sentence for damage to historical monuments still remains. This law, too, will surely be challenged in court if it ever passes.
Florida, like other red states, is also pursuing an expansive view of “parental rights” and “private rights of action” as tools to essentially legalize discrimination and repression, using the threats of large monetary damages as intimidation to ensure compliance. Last June, the Florida Board of Education banned the teaching of Critical Race Theory (CRT). Of course, CRT was only being taught in college or graduate-level courses so the ban was merely an excuse to allow local education officials to attack the teaching of certain aspects of history, especially racial history. The ban specifically cited teaching “that racism is not merely the product of prejudice, but that racism is embedded in American society and its legal systems in order to uphold the supremacy of white persons”. Now, the state legislature is gearing up to pass a bill that would ban public schools and private businesses from making anyone feel any “discomfort, guilt, anguish, or any other form of psychological distress” when discussing the country’s fraught racial history. DeSantis’ original proposal for this law used the latest conservative tactic to avoid judicial review, allowing parents a private right of action to monetarily intimidate school districts. That already seems to be working as a central Florida school district just cancelled a teacher training seminar focused on the civil rights movement. It seems more than a little troubling that the bill is targeting what private businesses should be allowed to present in their own diversity training courses. And, as Nikole Hannah-Jones points out, “Do you all know how crazily dangerous this is that Republicans have gone from pushing laws that argue white children need to be legally protected from honest conversations about racism and racial inequality to white ADULTS need to be legally protected?”
Florida is also planning on getting into the book-banning business. The State Senate is currently debating a bill that would have state-certified officials review all educational books and materials being used in public schools to ensure they are “age appropriate”. Schools would then have to post the list of “valid” materials publicly and then collect and document any complaints from parents or others and forward them to the State Department of Education. This builds on the existing 2017 law that allows any citizen to petition to remove classroom material. It is that law that is allowing a conservative political group to seek the removal of 16 books from the Polk County schools, claiming they violate the state’s obscenity laws. That list to be banned include critically acclaimed books like “Kite Runner” and “Beloved”.
Similarly, the Florida House has passed a bill that would ban teachers from even talking about LGBTQ topics that are not “age-appropriate or developmentally appropriate for students”, including discussions of sexual identity or gender identity. The bill again allows parents to sue school districts and potentially be awarded damages if it is found the school infringed on the parents’ “fundamental right to make decisions regarding the upbringing and control of their children”. Studies have shown that discussions of LGBTQ issues in school substantially decrease suicides among LGBTQ students. Last June, DeSantis signed another law that once again allowed the private right of action, basically allowing parents to sue a school, when their child was “deprived of an athletic opportunity” by a trans student whose gender is not their biological sex at birth.
DeSantis’ focus on controlling schools and educators has gone even further. The Governor and his administration have apparently pressured the University of Florida (UF) to prevent professors at the university from testifying against the state in court cases on a number of issues. Three of the university’s professors were barred from testifying in a lawsuit opposing new voting rights restrictions. The university claimed “UF will deny its employees’ requests to engage in outside activities when it determines the activities are adverse to its interests. As UF is a state actor, litigation against the state is adverse to UF’s interests”. Another professor was barred from testifying against DeSantis’ effort to withhold funds from schools that mandated masks. Two others reported they had been prevented from identifying themselves as UF faculty members when they submitted an amicus brief supporting voting rights for ex-felons.
After UF’s conflict of interest explanation fell apart, the university claimed its policy barred professors from being paid witnesses in litigation. That explanation, too, fell apart, at which point UF claimed it was revising its policies. The six professors have now sued the university for violating their First Amendment rights and attempting to silence them in order not to annoy the DeSantis’ administration that determines the university’s funding. A federal judge recently blocked the university’s attempt to prevent professors from participating in lawsuits against the state, comparing UF’s effort to the Chinese suppression of academic freedom in Hong Kong.
Currently, the Florida Supreme Court (SCOFL) has interpreted the state constitution’s stated right to privacy as protecting the right to an abortion. Minors are allowed to bypass parental approval and get a judicial bypass to have an abortion. But, just to show the prevailing legal lack of concern for that right, a state judge recently decided that a minor was not mature enough to have an abortion because she slightly overstated her GPA to the judge as a B average. Thankfully, that decision was subsequently overturned. However, there is already an effort to replicate the Texas bounty law that would ban most abortions and allow lawsuits against anyone who enables an abortion. If that law should pass, or at least when the US Supreme Court revokes the right to an abortion, the pressure to either change the state constitution or have the SCOFL overturn the previous interpretation that protected abortion will be enormous.
Certainly, the currently ultra-conservative SCOFL would appear to have no problem overturning prior precedents. Three of the conservative 6-1 majority are Federalist Society cronies appointed by DeSantis and the Court has already shown its inclination to not let precedent, or even logical reasoning, stand in the way of its preferred political outcomes. It struck down two ballot initiatives that would have legalized marijuana on the specious reasoning that one initiative didn’t make clear that marijuana use would still be illegal under federal law and the other’s use of the phrase “limited use” did not specifically limit how much cannabis one person could consume. It struck down another gun control ballot initiative because it claimed the ballot summary did not fully describe the initiative’s full text.
These are not the first times that this Court has interfered with Florida’s ballot initiatives. In 2018, 64% of Floridians voted to restore the right to vote to felons who had served their sentence. That was more than the supermajority of 60% that was required to pass the initiative. But the Republican state legislature, fearing a deluge of new Democratic voters, immediately went to work to sabotage the initiative. The legislature interpreted the initiative’s wording of “all terms of sentence” as requiring the full repayment of all fines, fees, court costs and restitution before someone could vote again, despite previous understandings that a “sentence” only involved a duration of time. According to one analysis, over half of the 1.4 million ex-felons still owed over $1000 in fees of some sort. The bigger problem was the state could provide no method for an ex-felon to find out just exactly how much they still owed, while also purposely slow-walking verification of ex-felon attempts to register to vote. In effect, the state legislature had implemented a poll tax on ex-felons. Unsurprisingly, in January 2020, the conservative SCOFL upheld the legislature’s interpretation. In May 2020, however, a federal judge ruled that this new poll tax on ex-felons violated the 14th Amendments equal protection clause because it amounted to wealth discrimination. The state appealed and the 11th Circuit stayed that ruling without comment. The Supreme Court then refused to lift the stay, again offering no legal rationale for its decision. The new, now legalized, poll tax remains in effect until this day and many ex-felons who want to vote still live in this Kafkaesque, Jim Crow limbo where the state still cannot provide them with the exact amount of money they still owe to officially end their “sentence”.
Even as Florida demands ex-felons pay back every single dime of whatever fees and court costs they owe, the DeSantis administration was simply allowing business to flagrantly defy a 2019 law that required corporations to report detailed information about their income taxes. The 2019 law included a huge but temporary tax break for corporations, and it was thought that better data about corporate taxes would allow for a better permanent tax cut going forward. The legislature imposed fines of $1000 or 1% of their tax due, whichever was greater, for not providing the additional income tax data. Unfortunately, about half of Florida’s corporate taxpayers simply did not provide this additional information and are now subject to fines estimated to be between $168 million and $255 million. But the Florida Department of Revenue has simply decided not to collect those fines because the new data collected is not being used. Of course, the reason the new data is not being used is because it is incomplete because half the filers ignored the law.
Florida has also imposed new restrictions on voting rights, although they are admittedly not as egregious as efforts in other red states. The new law limits the number of drop boxes and the times those boxes are “open”; requires drop boxes to be manned when they are open; and increases the identification needed to receive an absentee ballot. In addition, voters who wish to receive absentee ballots will have to request them for each two-can year election cycle going forward. There are also new limits on who can collect and deliver those absentee ballots. The law also allowed DeSantis to appoint replacements for local officials who resign to run for other elected offices, a clear power grab and seemingly specifically targeting Democrats who would want to run for what was then an open House seat in a strong Democratic district. DeSantis dramatically signed this new law in an exclusive event on Fox & Friends and declared “Floridians can rest assured that our state will remain a leader in ballot integrity”.
Actual events soon called that statement into question. While actual voter fraud is exceedingly rare and statistically insignificant, Florida Republicans seem to be committing it with increasing frequency, at least partly driven by the constant stream of bogus propaganda that tells them Democrats are doing it. Four people in the conservative, Prisoner-like stronghold of The Villages have been arrested for voting twice in 2020, once in Florida and once in another state where they also had a residence. Three of those four were registered Republicans and the fourth was unaffiliated with any party.
While the fraud in the Villages is the usual rare and isolated incidence of voter fraud, a proposed state constitutional amendment to expand casino gambling in Florida has apparently resulted in what the Miami Herald described as “one of the largest cases of election-related fraud in recent history”. The amendment is backed by the Las Vegas Sands, a company founded by the late Republican megadonor Sheldon Adelson and currently run by his wife. The Sands financially supported a committee, Florida Voters in Charge, which was supposed to collect enough signatures to get the amendment on the ballot. Apparently, the committee submitted thousands of petitions with forged signatures across six Florida counties, including those of dead voters and even those of a County Supervisor of Elections and his wife.
These incidents might actually create work for another DeSantis initiative, the creation of a special police force to oversee state elections. This Office of Election Crimes and Security would be part of the Department of State which reports directly to the governor. It would also incorporate another recent Republican tactic, a tip line for the public to report on their neighbors. As the head of the League of Women Voters in Florida noted, “So to have your own elections SWAT team, that would be under the direction of the secretary of state, who is under the direction of the governor, is not a comfortable feeling. Having governmental officials like this, traveling about overlooking elections just to see if there’s something going on, is very chilling, very scary and very reminiscent of past governmental interference that was directed to Black voters”.
Finally, with control of the state legislature and the governorship, Republicans have the opportunity to again gerrymander Florida. In 2010, Florida voters passed another constitutional amendment that banned partisan gerrymanders. The then liberal majority on the Florida Supreme Court (SCOFL) eventually ruled that the state legislature’s 2011 redistricting violated the constitution and in 2015 ended up drawing its own maps for the state. Today, DeSantis is proposing what redistricting expert Dave Wasserman describes as “the most brutal gerrymander proposed by a Florida (Republican) yet” which could provide Republicans with an additional four House seats. We will find out in the coming weeks whether this was just a DeSantis’ PR stunt or whether he will try to ram this through the Republican state legislature. If that should happen, it would provide another challenge for the conservative SCOFL to once again openly defy the will of a vast majority of Florida voters and ignore the actual wording of the state constitution.
This is the fascist future we can look forward to: a state where its leaders are willing to sacrifice not only their own citizens but even their own supporters to gain further political power; where protest is restricted; where history, libraries, and education itself are subject to political intimidation and control; where voting rights are restricted and nearly impossible to obtain for certain targeted groups; where the corruption of the ruling party is ignored; and where gerrymandering and lawless courts ensure near permanent power for those already in charge.
All of this is why Paul Waldman says that DeSantis is “creating a paradise of authoritarianism” and driving an “effort to pull Florida not just to the right but toward a particular brand of authoritarian conservatism”. As Waldman notes, Desantis has called “Florida ‘the freest state in these United States’, ‘freedom’s vanguard’ and ‘the rock of freedom’. Unless, that is, the freedom you’re interested in involves encouraging people to get vaccinated, protecting your employees and customers from a pandemic, teaching history honestly, voting, protesting or anything else Republicans might not want you to do”. And virtually every one of these tactics is being replicated in some, often worse, form or other in red states across the country.
DeSantis is now well-positioned to inherit the MAGA mantle should Trump choose or be unable to run in 2024. It is less clear whether DeSantis would actually challenge Trump should he decide to run. Incredibly, and defying all evidence to the contrary, some never-Trumpers consider DeSantis to be a saner and less autocratic candidate than Trump. Conor Friedersdorf somehow believes DeSantis works “within normal parameters”. Certainly, DeSantis is saner and more competent than Trump, which only makes his autocratic impulses even more dangerous. The reality is that DeSantis is doing what every Republican today needs to do to win election and that is make sure you are farther right than your opponent. Just look at the Republican Senate primary in Ohio. DeSantis has positioned himself even farther to the right than Trump and if any other Republican (ahem, Ted Cruz) wants to replace him as Trump’s heir apparent, they will have to become even more fascist and autocratic than Desantis.