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Locking Out the Vote

Published: April 1, 2003

American Lawyer
April 2003

Locking Out the Vote: When a 135-year-old policy with racist origins is still having discriminatory effects, it is time for the policy to go.
By Jessie Allen

This month Florida will defend a law that prevents one out of five black men there from voting. Ever again. The challenged law permanently bars from the polls anyone ever convicted of a felony-more than 600,000 people in Florida today. It was originally adopted after the Civil War to disenfranchise newly freed slaves. But before a federal appeals court in Miami, the state will argue in Johnson v. Bush that the policy has no such racist origins, and that even if it does, origins don’t matter. Meanwhile, the law strips blacks of voting rights at more than twice the rate of whites.

The blacks barred from the polls for life in Florida are barred [by convictions for which they have fully served their sentences] because of a policy originally designed to undermine African American political power. More about the law’s history in a moment. First, a few current realities are noteworthy. We tend to think that “ex-felons” are bad people, who left their rights at the crime scene. But most of those disenfranchised are not violent criminals. This ban mainly disenfranchises people whom criminal justice authorities have chosen to go after. Authorities focus on particular kinds of crimes in particular neighborhoods through, for example, the “war on drugs,” which targets drug offenders in inner cities more often than on college campuses and in corporate corridors. Denying the right to vote to those caught up in the criminal justice system helps ensure that lawmakers are never held accountable for that system’s discriminatory effects.

With all of this in mind, how can Florida possibly defend its voting ban? In the first place, the state refuses to acknowledge the law’s pernicious racial history, insisting that the law is part of a “venerable tradition” that has nothing to do with race. But a second, more insidious argument is at work. The state contends that because it reenacted an amended version of the law in 1968, it is no longer accountable for any racist purpose associated with its original enactment. Yet the state admits that the 1968 legislature never confronted or repudiated the law’s discriminatory purpose or effect. Nor was the state able to produce a record of any legitimate policy reasons that were considered when the law was reenacted. Without a rejection of the law’s original racist purpose-or a statement of any sound reason for continuing the law despite its racial impact-reenactment simply perpetuates the original discrimination.

Felon disenfranchisement in Florida dates back to the time when the state was forced by the Fifteenth Amendment to enfranchise black freedmen. In January 1868 Florida’s chosen delegates convened in Tallahassee to write the state’s first constitution that would allow African Americans to vote. This was by no means a symbolic matter. Because blacks were a majority in some of Florida’s most populous counties, there was real potential for African American control of state government. According to the leading historian of Reconstruction in Florida, Jerrell Shofner, two rival political factions of the majority Republican party, the radicals and the moderates, emerged to battle over control of the convention. The radicals aimed to foster black political power. The moderates wanted to gain the support of the still-powerful ex-Confederates to encourage Florida’s economic redevelopment. To appease their white conservative allies, they sold out the rights of newly freed African Americans.

Two constitutions grew out of the convention. In early February the moderates abandoned Tallahassee and decamped to nearby Monticello, Florida, where they held meetings that included prominent conservatives. In their absence, the radicals drafted a constitution that disenfranchised ex-Confederates but included no provision for criminal disenfranchisement. Then the moderates came back. On February 10, at midnight, they took over the convention hall, posted guards at the door, and refused to admit the radicals. They proceeded to draft a constitution with several provisions aimed at containing African American political power. It skewed legislative apportionment to enhance representation from the sparsely populated white counties and cap the number of representatives allotted to the more populous black counties. [Even the state’s expert witness, political scientist Lance deHaven-Smith, acknowledged in a draft of a 2001 report that the latter measure was intended to restrict black power: “In 1868,” he wrote, “black influence was restricted through the system of legislative apportionment."] To keep elected blacks out of local government, the moderates’ constitution also provided that almost all local officials would be appointed by the governor. And it permanently disenfranchised anyone convicted of a felony. Ultimately the moderates’ draft prevailed.

The state argues that because an antebellum Florida constitution contained some provisions for criminal disenfranchisement at a time when only whites could vote, the 1868 adoption of felony disenfranchisement must have been benign. But the fact that the radical constitution rejected criminal disenfranchisement, coupled with the moderates’ use of other electoral devices widely recognized to have been racially discriminatory, plainly shows that the 1868 constitution’s felon disenfranchisement provision was part of the moderates’ overall racist plan.

But so what? The state’s real point is that just because a law was enacted for bad reasons nearly 150 years ago doesn’t necessarily make it a bad law today. We shouldn’t condemn a potentially legitimate practice, says the state, on the basis of some sort of original racial sin.

With this argument, Florida demands a favor it won’t extend to its citizens. It is ironic that the state is claiming its tainted policy has been rehabilitated when that policy itself permanently condemns more than 600,000 people to political outlawry-sometimes for a single illegal act committed a long time ago. But the more important response to Florida’s argument is that while discriminatory racial intent is not permanently undoable, like original sin, it does require some undoing. Florida wants to be treated as if its policy’s dismal past never existed-despite that policy’s ongoing discriminatory effect. That approach, which ignores history and defies common sense, simply cannot be the rule.

The state’s argument puts the burden of proof in the wrong place. Once it’s been shown that a state originally adopted a law for discriminatory reasons, it is up to the state to prove that the law’s purpose has changed. As U.S. Supreme Court justice Clarence Thomas observed in the context of school desegregation: “Given an initially tainted policy, it is eminently reasonable to make the State bear the risk of nonpersuasion with respect to intent at some future time,” in part “because the state has created the dispute through its own prior unlawful conduct.” Moreover, the alternative-forcing plaintiffs to produce evidence that every subsequent reenactment of a racist law was itself racially motivated-would practically invite legislatures to avoid judicial scrutiny by silently reenacting discriminatory policies. Does reenacting a law automatically reset the constitutional clock?

A state cannot escape its constitutional responsibility merely by reenacting a discriminatory policy. At the very least, it should have to demonstrate that it reenacted a previously discriminatory law with consciousness of the racial issue and that it did so for sound policy reasons. Florida has demonstrated neither. Over the years, most of the practices designed to exclude blacks from Florida politics have been repealed or struck down by courts: the skewed apportionment and local appointment schemes of the 1868 constitution are no more. Gone, too, are the poll taxes, residency requirements, and white primaries. The state’s felon disenfranchisement policy is a last vestige of a once-racist electoral system.

There is some hope. It is promising that most states do not permanently disenfranchise ex-felons. Only seven do. And recently, some states have moved to reform their criminal disenfranchisement laws. In the last two years, New Mexico repealed its lifetime ban on ex-offenders’ voting; Maryland repealed its permanent disenfranchisement of second-time felons; and Connecticut passed a law that allows those on probation to vote.

It’s time for Florida to free its electoral system from a policy that still serves its original racist purpose.

Jessie Allen was an associate counsel at the Brennan Center for Justice at NYU School of Law, which served as lead counsel for the plaintiffs in Johnson v. Bush.

Reprinted with permission from the April 2003 edition of The American Lawyer 2003 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.