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January 3, 2018

Spotlighting felon disenfranchisement in Florida

I am always pleased to see the New York Times editorial board giving attention to criminal justice issues, and I am especially pleased to see this new editorial focused on felon disenfranchisement.  The lengthy piece is headlined "Florida’s 1.5 Million Missing Voters," and here are excerpts:

Everyone remembers that the 2000 presidential election was decided by 537 votes in Florida.  Far fewer remember another important number from the state that year — 620,000, the Floridians who were barred from voting because state records showed, correctly or not, they had been convicted of a felony.

It didn’t matter whether their crime was murder or driving with a suspended license, nor whether they had fully served their sentence. In Florida, the voting ban is entrenched in the Constitution, and it’s for life.  Today, Florida disenfranchises almost 1.5 million of its citizens, more than 11 states’ populations and roughly a quarter of the more than six million Americans who are unable to vote because of a criminal record.

Felon disenfranchisement is a destructive, pointless policy that hurts not only individuals barred from the ballot box, but American democracy at large.  Its post-Civil War versions are explicitly racist, and its modern-day rationales are thin to nonexistent. It can make all the difference in places like Florida, which didn’t stop being competitive in 2000; the state remains a major presidential battleground, and victories for both parties in state and local elections are often narrow.

That could all change if a proposed constitutional amendment gets enough signatures to be placed on the ballot in November and wins enough support.  The initiative would automatically restore voting rights to the vast majority of Floridians who have completed their sentence for a felony conviction, including any term of parole or probation.

This is a long overdue and urgently needed reform.  The only way around Florida’s lifetime ban — as in the other three states with such a ban, Kentucky, Iowa and Virginia — is a direct, personal appeal to the governor.  In the last few years, Terry McAuliffe, as Virginia’s governor, restored voting rights to more than 168,000 people, and the governors in Kentucky and Iowa granted roughly 9 in 10 of the restoration requests they received in the first half of the decade....

The right to vote is the most meaningful mark of citizenship in a democracy. It should be withheld only in extreme circumstances, and its restoration shouldn’t depend on the whims of a governor.  What’s worse, many of these laws, especially in the South, are inextricable from their racist origins. Florida’s was enacted in 1868 — two years after the state thumbed its nose at the 14th Amendment — with the intent to prevent newly freed black people from voting.  Those effects linger today, as one in five black adults in Florida remain disenfranchised because of a criminal record.

The new initiative, which excludes people convicted of murder or sexual offenses, will be placed on the ballot if it receives 766,200 signatures and will take effect if it earns at least 60 percent of the vote. Its advocates have submitted more than one million signatures to date, although many still need to be verified before the Feb. 1 deadline.

One hundred and fifty years after Florida enshrined this awful law, there’s only one clear way to get rid of it.  Legal challenges have fallen short, the governor is no friend to voting rights, and lawmakers have limited power when it comes to constitutional amendments.  It’s time for Florida’s voters to step up and restore the most fundamental constitutional right to more than a million of their neighbors.

I hope this proposed constitutional amendment can get to the ballot and can garner a super-majority of votes.   As long time readers may know, I have long believed as many people as possible should be enfranchised in a democracy, and my basic thinking on this front was explained in this Big Think piece years ago headlined "Let Prisoners Vote."

Thinking beyond this ballot initiative, I suspect Congress could enact legislation that could restrict the reach of extreme state felon disenfranchisement laws.  I know Senator Rand Paul spoke about this issue some years back, and I would guess they might be some opportunity for some bipartisan legislation to try to limit how some states seek to limit the franchise.  (I recognize there could be some constitutional/federalism issues raised if Congress gets too involved in state voting laws, but often if there is a will to expand the franchise, there can be a way.) 

January 3, 2018 at 01:42 PM | Permalink


A federal statute would probably run into the same problem that the Religious Freedom Restoration Act did -- a narrow interpretation of the constitutional power under the Fourteenth Amendment to enforce civil rights (or voting rights under the Fifteenth Amendment). The theory would be that if there were no constitutional right for felons to vote than Congress lacks the power to enact laws enforcing that non-existent right. I believe that there was a similar issue when Congress attempted to lower the voting age to eighteen by statute.

Posted by: tmm | Jan 3, 2018 1:52:34 PM

I've never understood why felons are prohibited from voting - I mean I know why (laws etc.) It just strikes me as odd that being a felon excludes you from voting. I can assure you no one who is contemplating committing a crime is thinking - hey if I commit this felony, I'll never get to vote again, I guess I better not commit that felony. Just my two cents.

Posted by: atomicfrog | Jan 3, 2018 2:35:09 PM

OK maybe, just maybe, murder, but why should those convicted of "sex crimes" be denied the right to vote? As opposed to politicians convicted of public corruption? That in and of itself is sufficient reason to reject this amendment. The very fact that murderers and sex-offenders are excluded inherently justifies the very concept of the prohibition itself.

The rationale behind these restrictions is fairly simple, if debatable. Those who are convicted of felonies are generally restricted from receiving a license as a physician, or as an attorney, or from serving as a police officer, or from serving as the executor of a will. (Depending upon the state.) Certain public functions require the demonstration of character, and lack of character and the implication that one will not select a candidate "for the right reasons" can be a theoretically valid reason for prohibiting felons from voting, as this has historically involved "moral turpitude" even way back to the fundamental concept of an "out-law." In the same way children, and the insane, are not allowed to vote.

Of course, while that may be valid in abstract theory, the actual implementation faces certain fundamental problems. First, the idea of trading votes for whiskey is well established in our country. More importantly, while 50+ years ago a "felon" was generally a very serious criminal, today I hold that a prosecutor can find enough evidence to convict any given person of a felony. (Or at the very least, that person is faced with the situation that pleading guilty to a felony is the only valid option.)

Posted by: SPM | Jan 3, 2018 3:48:16 PM

The majority of felons will register with the Democratic Party. The enfranchisement movement is a thinly veiled attempt to increase votes for the Democratic Party in a divided nation. This movement should be resisted to the utmost by the Republican Party.

Posted by: David Behar | Jan 3, 2018 9:21:11 PM

There is exactly zero compelling public policy reason for denying the right to vote to people who have been convicted of crimes -- outside of imposing that specifically in cases where the conviction was for voter fraud, and also structuring it so that it ends when the person is finished with their sentence.

Posted by: Guy Hamilton-Smith | Jan 4, 2018 8:52:37 AM

I agree with guy. Sorry but once the court ordered punishment us done all rights are restored automatically Unless in a individual showing of an immediate threat to themselves or others. Yes I include the 2nd as well. Sorry but while this country is a representative democracy as far as 98% of the citizens it's just a democracy. One person one vote

Posted by: Rodsmith3510 | Jan 4, 2018 11:55:14 AM

Personally David I think Both parties should be removed from power and control they are two sides of the same worn out useless coin

Posted by: Rodsmith3510 | Jan 4, 2018 11:57:32 AM

Guy. How about this compelling public policy consideration? Immigrant and felon enfranchisement will lead to the electoral dominance of the Democratic Party in this divided nation.

That will damage the interests of the constituents of the Democratic Party. Under Obama, black unemployment was 40%. Under Trump, it is 16.2%. If you hate the constituents of the Democratic Party, and want to do them serious harm, elect a Democrat.

Posted by: David Behar | Jan 4, 2018 12:51:46 PM

Under current doctrine, which for what little it's worth I find wrong on various points [though Boerne had a point given the breadth of RFRA], I think tmm makes a strong case.

Posted by: Joe | Jan 7, 2018 11:33:57 PM

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