Florida Amendment 4: Shining a Light on Felony Disenfranchisement in the Sunshine State

When casting their ballots for the midterm elections, Florida voters will have the opportunity to help restore the eligibility to vote to previously incarcerated individuals with felony convictions through a constitutional amendment. For the enactment of a proposed amendment, Florida’s state constitution requires that at least 60 percent of voters approve the amendment. If passed, Amendment 4 will restore the voting rights of 1.4 million Floridians.

While Amendment 4 would mark a monumental shift in voting rights, it does have its limitations. Even if the amendment passes, individuals with felony convictions would first need to pay all fines and restitution associated with their convictions, and fully complete their sentences—which includes completing parole or probation—before they can become re-eligible to vote. Additionally, the amendment would not restore the voting rights for those convicted of murder or felony sex offenses. However, this ballot initiative would replace Florida’s current, standard-less voting rights restoration scheme that gives the Florida Executive Clemency Board, which is headed by Florida’s governor, full discretionary power to decide who deserves the ability to vote. Under Florida’s current scheme, most individuals convicted of felonies must wait a minimum of five years before applying to the Clemency Board for rights restoration—where a backlog of over 10,000 applications are currently pending. Thus, Florida’s felony disenfranchisement law has denied many individuals of their ability to meaningfully participate in the political process. Through passing this ballot initiative, Florida will not only streamline the restoration of civil rights process for its citizenry, but it will take a step in abandoning an outdated law rooted in racial animus.

Across the nation, 6.1 million Americans cannot vote due to state laws that disenfranchise people convicted of felony offenses. More than a quarter of these individuals reside in Florida.  Of all the states with felony disenfranchisement laws, Florida disenfranchises the most people. Currently, 10.43 percent of Florida’s voting age population had their voting eligibility stripped due to felony convictions. Data illustrates that Florida disenfranchises more of its citizens because of felony convictions than Alabama, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, and Tennessee combined.

As one of only four states that imposes lifetime disenfranchisement bans for all individuals with felony convictions, Florida remains an anomaly in comparison to other states, many of which have undergone extensive reforms to expand the franchise. For example, while 840,000 citizens have regained the right to vote between 1997 and 2016 because of other state initiatives and reforms, only around 3,000 Floridians have had their rights restored between 2011 and July, 2018. Although Virginia also has a lifetime voting ban for felony convictions, it has eliminated the waiting period and streamlined the application process for rights restoration. Moreover, Governor Terry McAuliffe took an active role by granting executive pardons, which effectively restored the voting rights of more than 173,000 Virginia residents with felony convictions. As of 2016, Florida had more than four times as many disenfranchised residents as Iowa and Kentucky—two other states that have lifetime felony disenfranchisement laws—combined. Thus, if passed, Amendment 4 will have a monumental impact on Florida’s electorate.

Felony disenfranchisement laws represent “vestige[s] of Jim Crow,” are rooted in racial animus, and disproportionately impact communities of color. Indeed, though the language was slightly modified in 1968, Florida’s current felony disenfranchisement law is 150 years old. The law emerged in Florida’s 1868 Constitution during a period defined by relentless efforts to suppress newly freed Black voters: the Reconstruction Era.

In response to the passage of the 13th and 14th amendments, Florida incorporated laws in its state constitution that aimed to curb the Black vote.  Before the passage of the 15thamendment, which prohibits federal and state governments from denying citizens the right to vote based on their “race, color, or previous condition of servitude,” Florida’s lawmakers enacted a law in the state’s 1865 Constitution that guaranteed the right to vote only to “free white males.” Florida was also one of several southern states that adopted “Black Codes,” which were laws designed to constrain the newly freed Black population, perpetuate their forced labor and bondage, and regulate their freedoms. To achieve these goals, Florida’s legislators enacted laws that disproportionately prosecuted people of color. When testifying as an expert in Johnson v. Bush, litigation involving Florida’s felony disenfranchisement law, the late Professor Emeritus of History at the University of Central Florida and renowned Florida historian, Professor Jerrell H. Shofner, opined that Florida’s criminal law system targeted Black individuals by classifying felonies as acts “Whites believed that Blacks were prone to commit.” Jerrell H. Shofner, Ph.D. Expert Report, at 426-27, Johnson v. Bush, 214 F. Supp. 2d 1333 (S.D. Fla.) (2002) (No. 00- 3542) (testifying that Florida’s Black Code discriminated against Black individuals and “[t]hat discrimination included the creation of new criminal offenses to the commission of which, according to one prominent legislator, the black freedmen were ‘addicted.’”).

Even though Florida eventually expanded the right to vote in 1868 to all men above the age of 21 regardless of race, its inclusion of a felony disenfranchisement law in its constitution was yet again another effort to oppress its Black citizenry. Florida’s 1868 Constitution authorized Florida’s legislature to enact “laws to exclude from every office of honor, power, trust, or profit, civil or military, within the State, and from the right of suffrage, all persons convicted of bribery, perjury, larceny, or of infamous crime . . . .” Although this law was seemingly neutral on its face, it was racially motivated. Unsurprisingly, the qualifying crimes for felony disenfranchisement were “the same crimes the legislature had recently recognized and expanded through Black Codes.” The historical context reveals that the state’s felony disenfranchisement law intentionally aimed to exclude Black people from the political process.

Research and data have consistently illustrated that beyond the Reconstruction and Jim Crow eras, felony disenfranchisement laws still disproportionately affect Black Americans more than any other racial group. With one of every 13 Black adults disenfranchised across the country, Black Americans are more than four times as likely to lose their voting rights than other voting-aged adults. In Florida, 21% of Black adults are disenfranchised. Of Florida’s total population of disenfranchised voters, a third of those individuals are Black (despite African Americans comprising only 16% of Florida’s total overall population). The racial disparity in incarceration rates between Black and White Americans in Florida are striking. Caucasians are incarcerated at 448 per 100,000 people, while Black individuals are incarcerated at 1,621 per 100,000 people. The effect of felony disenfranchisement, coupled with the disparities in the criminal justice system, have weakened “the political clout”of many Floridians.

Because incarceration isolates individuals from the rest of society, enfranchising those who have completed their criminal sentences will encourage them to become engaged, informed, and involved in their communities, and will better aid them in reentering society. The passage of Amendment 4 will empower previously convicted felony offenders to become more responsible, law-abiding citizens. In fact, studies show that individuals released in states with permanent disenfranchisement laws are ten percent more likely to re-enter the criminal justice system than those individuals released in states that do restore voter eligibility. Civic engagement is thus a component of rehabilitation. A close look at Florida’s annual restoration of civil rights and recidivism reports bolsters this theory. According to the reports by the Florida Parole Commission, individuals who regained their eligibility to vote are three times less likely to reoffend than those who do not vote. Amendment 4 would therefore serve as an important vehicle to rehabilitation and lower recidivism rates.

While millions opted out of voting in 2016 even though they had the ability to do so, millions of others were barred from engaging in one of the most basic civic activities.  When states encourage the inclusive and broad participation of their citizens, democracy flourishes. As the Supreme Court held in Reynolds v. Sims, “[t]he right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.” The ability to vote has been a crucial tenet of American democracy, and one that has unfortunately been denied to too many in our history. This draconian practice of permanently stripping individuals of their ability to access the ballot will only further ostracize those who have already paid their debts to society. Thus, not only would the passage of Amendment 4 be good policy, but it would represent a watershed moment in Florida’s history.

Written by

Mandy is a 3L at HLS. She is interested in issues relating to criminal justice, gender equality, and voting rights. Mandy is the Co-President of the Harvard Law School Democrats. Prior to law school, Mandy served as the Director of Student Correspondence and Engagement in the White House Office of Presidential Correspondence. Mandy grew up in Jacksonville, Florida, and received her undergraduate degree from The George Washington University.

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