When President Lyndon Johnson signed the Voting Rights Act more than 50 years ago, he remarked, “The vote is the most powerful instrument ever devised by man for breaking down injustice and destroying the terrible walls which imprison men because they are different from other men.”
One of the groups that remains imprisoned when it comes to voting are ex-offenders in Florida, where I teach law school. Disenfranchisement for those with felony convictions has a long history in the Sunshine state. It dates to the 1868 constitution. The relevant portion in the current state constitution reads, “No person convicted of a felony…shall be qualified to vote or hold office until restoration of civil rights.”
The only way a Florida ex-offender can get their voting rights back is to wait at least five years after completing their sentence, apply to the state’s clemency board, and win the approval of the governor and two other board members. Florida is one of only four states – the other three are Iowa, Kentucky and Virginia – where an ex-offender must secure permission from the state to resume voting. (Virginia Governor Ralph Northam has continued the practice of his predecessor in restoring voting rights to thousands of ex-offenders who apply to have them reinstated.) Voting rights restoration in Florida is hardly pro forma. Of 27,700 applications between 2011 and 2016, only nine percent, or 2,500, were approved by the state’s clemency board.
This fall Florida voters will have the chance to end the ex-offender lifetime voting ban. If 60 percent of the electorate approves, a ballot initiative would change the constitution so that offenders who have finished their sentences (including parole and probation) would have their voting rights restored automatically, unless the conviction was for murder or a sexual offense.
Although it’s early, a poll taken this month shows the measure’s supporters may have an uphill climb. There are an astonishing 13 constitutional amendments on the November ballot, and according to a June poll taken by the Florida Chamber of Commerce (which is neutral on the proposal), the voting rights initiative is now among the measures with the lowest voter approval, 40 percent. However, 43 percent of voters are undecided, which means there is plenty of room left to garner support.
Whatever the political vicissitudes, the justice of restoring ex-offenders’ franchise is beyond doubt. My students have written passionately about why ex-offenders deserve to resume voting. There are three arguments I see repeatedly from these budding lawyers.
First, the U.S. is the only democracy that permits lifetime disenfranchisement for ex-offenders. Second, there is evidence disenfranchisement laws were drafted with discriminatory intent, as the Supreme Court unanimously found in 1985 with respect to Alabama. Finally, they cite Justice Thurgood Marshall’s dissent in Richardson v. Ramirez, a 1974 ruling which upheld California’s lifetime disenfranchisement provision, which has since changed. “[Ex-offenders] are as much affected by the actions of government as any other citizens, and have as much right to participate in governmental decision making,” he wrote. “Furthermore, the denial of the right to vote to such persons is a hindrance to the efforts of society to rehabilitate former felons and convert them into law abiding and productive citizens.”
According to a 2016 estimate by The Sentencing Project, 6.1 million people nationwide have lost voting rights because of a felony conviction. Grouped together, this cohort would be the 18th most populous state, behind Indiana and ahead of Missouri. Even more disturbing is what these numbers show at the state level. In Florida, an estimated 1.7 million adults cannot vote because of a felony conviction, which represents nearly 10.5 percent of the state’s voting age population, the highest in the nation. (The number of disenfranchised is about the size of the Jacksonville metro area.) The situation for African-Americans is even more stark, with 21 percent of the voting age population disenfranchised due to a felony conviction.
One reason the franchise for ex-offenders is before the voters is because various litigation strategies have failed. There have been arguments brought under Fourteenth Amendment’s equal protection clause, the Fifteenth Amendment’s protection of voting rights, as well as the Voting Rights Act. They all met with defeat. For example, the Brennan Center challenged Florida’s law in 2005, claiming it violated both the Fourteenth Amendment and the Voting Rights Act. The suit was dismissed in an en banc ruling by the Eleventh Circuit.
Recently, however, it looked like litigation was making some headway. In February, nine days after the voting rights initiative was approved to appear on the ballot, a Florida federal district court ruled in a summary judgment order the state’s method for restoring voting rights was so arbitrary it violated the U.S. Constitution. “To vote again, disenfranchised citizens must kowtow before a panel of high-level government officials over which Florida’s Governor has absolute veto authority. No standards guide the panel,” Judge Mark Walker wrote. Absent any standards, the state was free to discriminate in any way it wished. Walker issued a blistering condemnation of the process:
Once a felon loses the right to vote, only the state may grant it back in a manner of its choosing. A person convicted of a crime may have long ago exited the prison cell and completed probation. Her voting rights, however, remain locked in a dark crypt. Only the state has the key—but the state has swallowed it. Only when the state has digested and passed that key in the unforeseeable future—maybe in five years, maybe in 50—along with the possibility of some virus-laden stew of viewpoint discrimination and partisan, religious, or racial bias, does the state in an “act of mercy,” unlock the former felon’s voting rights from its hiding place.
Walker ordered the state set forth “specific and neutral criteria” for restoring voting. But the Eleventh Circuit stayed the lower court’s directive pending argument on the merits, now set for July 25. “Binding precedent holds that the Governor has broad discretion to grant and deny clemency, even when the applicable regime lacks any standards,” the appellate panel wrote. The appellate court said the state was likely to prevail in the underlying litigation. The panel could not have broadcast more loudly that it would maintain Florida’s standard-free voting restoration process.
The appellate court’s ruling is rooted in the fact that felony disenfranchisement is enshrined in the Florida constitution. With the courts paying great deference to that document, it is up to the voters to dispense justice when the courts will not, and restore the right to vote to those who have already paid in full their debt to society.
The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.