Originally published in The Intercept on September 6, 2018.
One in ten eligible voters in Florida are effectively disenfranchised, thanks to a draconian law that bars former felons from voting and a broken clemency system. When it comes to black voters, the numbers are even more grim: More than 20 percent of otherwise eligible black voters from Florida cannot cast a ballot. In total, more than a quarter of all disenfranchised felons in the entire country are in the Sunshine State.
But this November, Florida voters will have a chance to reverse that by weighing in on Amendment 4, a constitutional ballot measure to restore voting rights to an estimated 1.5 million Floridians who have fully completed their felony sentences. Florida is just one of three states in the U.S. that indefinitely bans citizens with felony convictions from voting.
Amendment 4 is the results of years of grassroots work by Florida organizers, but it’s also part of recent nationwide push on this front. In 2016, the Democratic Party put in its party platform for the first time a commitment to restore voting rights to formerly incarcerated individuals. Earlier that same year, the Democratic-controlled Maryland legislature overrode the veto of Republican Gov. Larry Hogan and restored the right to vote to more than 40,000 former prisoners still on probation or parole. Also over the course of 2016 and 2017, Virginia’s Democratic Gov. Terry McAuliffegranted clemency to more than 168,000 former felons.
Constitutional amendments in Florida require least 60 percent approval to pass — no easy objective. In 2012, for example, there were 11 constitutional amendments on the ballot, and Florida voters rejected eight of them.
But a slew of early polling bodes well for supporters of Amendment 4: In February, a Quinnipiac University poll found 67 percent of Florida voterssupported the idea of restoring voting rights to individuals who have committed a felony and completed their sentences, while 27 percent opposed it. Another poll released in May found that 74 percent of voters say they’d back Amendment 4. However, a poll released in June by the Florida Chamber of Commerce found that just 40 percent of voters approved of Amendment 4, with 17 percent opposed and 43 percent undecided.
The passage of Amendment 4 would be monumental to the vast majority of former felons in the state, but some would still get left behind; it does not provide restoration for those convicted of murder or sexual offenses. There’s a pragmatic rationale behind that: A measure that allows someone who, say, committed a robbery to vote again is much easier to sell politically than one that re-enfranchises someone convicted of rape. The amendment also has the full-throated support of Andrew Gillum, the Democratic candidate for governor who won an insurgent victory in last week’s primary. (Floridians energized by Gillum’s nomination are likely to vote in favor of the amendment.) His Republican opponent, Rep. Ron DeSantis, stands in opposition.
Disenfranchising criminals has a legal history that dates back well before the existence of the United States. Sean Morales-Doyle, a counsel in the Democracy Program at the Brennan Center for Justice, said the practice was prevalent in English common law and can likely be traced back to ancient Rome.
“It comes from an outmoded concept of government and criminal justice, that if you commit a crime you become an outlaw, and in addition to potentially being subject to the actual death penalty, it is appropriate for you to suffer a ‘civil death’ and no longer be allowed to participate in society in any way,” he said.
While some states adopted criminal disenfranchisement in their early years, Morales-Doyle said many did not, and there was a lot of variation during the United States’s formative years. However, in the period immediately following the Civil War, interest in felon disenfranchisement grew far more pronounced, especially in the South. Following the ratification of the 13th, 14th, and 15th Amendments, African-Americans received a wave of new rights, freedoms, and — importantly — political power, which were wholly opposed by many whites. States began to push for ways to undermine these new protections, like restrictions on voting for people convicted of crimes that black people were more likely to be found guilty of, thanks to a criminal justice system that was rife with racial prejudice. For example, South Carolina lawmakers barred those convicted of “thievery, adultery, arson, wife beating, housebreaking, and attempted rape” from voting, but not those convicted of murder or fighting. By 1869,29 states had enacted such policies.
This included Florida, which enacted a constitutional provision to indefinitely ban former felons from voting. It’s remained on the books ever since. “It was passed in 1868, after an unsuccessful attempt by Florida and other states to reject the 15th Amendment,” says Morales-Doyle. “So Florida passed a constitution with universal male suffrage — as required by the 15th Amendment — but then included some other provisions to undermine it, and one was the felon disenfranchisement provision.”
In the last half-century, many states have moved in the opposite direction. Though Maine and Vermont are the only two states that allow currently incarcerated individuals to vote, it’s just Florida, Iowa, and Kentucky that still permanently bar all citizens with felony convictions from voting. But many states still have other sorts of restrictions: Nationwide, more than 6 million Americans are barred from voting due to a felony conviction. According to the Sentencing Project, more than half have fully completed their sentences, another quarter are under probation or parole, and another quarter are still in prison. While 1 out of every 40 U.S. adults is barred from voting due to a former or current felony conviction, one in 13 African-American adults is disenfranchised.
Florida’s system for clemency has been mostly unchanged since the 1880s, but it grew even stricter in 2011, when newly elected Republican Gov. Rick Scott issued new rules requiring citizens with a felony conviction to wait at least five years before filing for clemency, including the restoration of voting rights — a process that often takes a decade or more.
Nearly five years after taking office, Scott had issued clemency to fewer than 2,000 Florida citizens, while over 20,000 applications remained pending. The number of disenfranchised Floridians has meanwhile continued to grow. Between 2010 and 2016, nearly 150,000 more were disenfranchised, bringing the total to about 1.7 million, according to the Sentencing Project. (This figure includes people who are still serving out their sentences, who would not be covered by Amendment 4.)
There have been some unsuccessful legal attempts in the past to strike down Florida’s voting ban on citizens with felony convictions. In 2000, the Brennan Center filed a class-action suit on behalf of more than 600,000 Florida citizens, arguing that the constitutional provision was discriminatory, and a violation of the 14th and 15th Amendments, and the Voting Rights Act of 1965. The federal district court for the Southern District of Florida agreed, but the U.S. Court of Appeals for the 11th Circuit in 2005 rejected it on appeal, saying the plaintiffs had failed to prove clear discriminatory intent.
A couple years later, the state started to make progress on its own. Former Republican Gov. Charlie Crist, who was in office from 2007 to 2011, granted automatic clemency for people completing sentences for certain felony convictions. More than 115,000 Florida citizens had their voting rights restored between 2007 and 2008, and by the end of his four-year term, more than 150,000 people with felony convictions regained their right to vote. (Crist is now a Democratic member of Congress.)
But within three months of taking office, Scott repealed the Crist-era reforms and issued even stricter barriers for voter restoration. He has earned a notorious record for voter suppression even beyond felon disenfranchisement, including signing a law in 2011 that reduced the window for early voting in Florida. (Facing immense public outrage, Scott and the legislature reversed course on this in 2013.)
Voting rights activists are pushing back on multiple fronts against Scott, who is now running for Senate. In addition to Amendment 4, there’s a class-action lawsuit winding through the courts — Hand v. Scott — that is trying to change the Florida voter restoration process while avoiding making the same legal argument about discrimination that failed in 2005. The Fair Elections Legal Network is representing former Florida felons who completed their sentences. The plaintiffs argue that the process used by the Florida clemency board to determine who should get their right to vote back is arbitrary and violates the equal protection clause of the 14th and 1st Amendments. In February, U.S. District Judge Mark Walker agreed. “Disenfranchised citizens must kowtow before a panel of high-level government officials over which Florida’s Governor has absolute veto authority,” Walker wrote in his opinion that struck down the state’s clemency system. “No standards guide the panel. Its members alone must be satisfied that these citizens deserve restoration.” In March, he ordered Scott to revamp Florida’s system by the end of April.
The state appealed to the 11th Circuit, putting a hold on Walker’s order. The case remains pending.
Amendment 4 is a chance to try something new — a grassroots, citizen-led effort in which the power for change is in front of voters, not judges and elected officials.
Activists started collecting petition signatures in 2015, under the banner of Floridians for Fair Democracy. Led by Desmond Meade, who was convicted of several drug charges and later completed a 15-year prison sentence for possession of a firearm as a felon. Organizers collected more than 799,000 certified signatures from registered voters in all 27 congressional districts, surpassing the minimum 766,000 signatures needed to get on the November 6 ballot.
Neil Volz, a former chief of staff to Republican Rep. Bob Ney — the congressman sentenced to jail in 2007 for corruption charges — pleaded guilty in 2006 to conspiring to corrupt public officials. Volz paid a fine and did community service, and never served time in prison, but when he moved to Florida in 2008, he realized he was unable to participate fully in his community. When he met Meade in 2015, Volz said, he quickly decided to get involved in the voter restoration effort. Today, he serves as political director for the Florida Rights Restoration Coalition, a grassroots organization led by returning citizens. “While collecting signatures I met people from all walks of life, from all over the state, from all political backgrounds, who were close to the pain of this policy,” Volz told The Intercept. “This is just about second chances.”
THE CAMPAIGN’S MESSAGING around second chances, however powerful, has its limits. Under Amendment 4, that redemptive message is not being extended to those who have been convicted of felony sex offenses or murder.
Gail Colletta, president of the Florida Action Committee, a state affiliate of the National Association for Rational Sexual Offense Laws, said that she supports Amendment 4, but her group opposes the exclusion of the over 70,000 citizens currently on Florida’s sex offender registry.
“The bottom line is that they leave this population out of anything that’s positive because they have a distorted view as to who people who are,” she told The Intercept. “They look at every sex offender like they’re a Ted Bundy.”
Colletta notes that while the criminal justice system looks at drug offenders and even murderers on a graded scale, society paints sex offenders with a broad brush. “It doesn’t matter what you did, they treat you all the same with a lifetime of punishment,” she said.
Critics note that by excluding sex offenders and murderers from the November amendment, these populations will become even further stigmatized than they already are.
“This country was built on Christian-Judeo values and in my understanding, that means people deserve a second chance,” Collette said, “but here we’re willing to throw [sex offenders] under the bus for politics.”
Darryl Rouson, a Democratic member of the Florida Senate, has long been a proponent of voter rights restoration. Prior to Amendment 4 making it to the ballot, Rouson himself introduced a now-withdrawn amendment to the state constitution. It would have excluded not only sex offenders and murderers from automatic rights restoration, but 12 additional categories, including kidnappers and armed robbers.
“It would have still covered about 70 percent of the people currently disenfranchised,” Rouson told The Intercept. “I felt mine was a reasonable compromise in a state that has not indicated sensitivity to the issue of voting rights.” Passing Amendment 4 a “critical, moral issue,” he added.
When asked why the drafters of Amendment 4 opted to exclude those who committed sex offenses or murders, Volz told The Intercept that that’s “what the people wanted” and that their campaign has “been listening to people at every step along the way so we knew [those exemptions] needed to be included in the initiative.” But the petition language has remained the same since organizers began collecting signatures, and it could not have been changed based on public feedback after the drive began in 2015. “We’re focused on moving this forward, in the healthiest, broadest way that we can,” Volz said, declining to answer more specific questions. (Meade did not return multiple requests for comment on this issue.)
It’s not clear when the 11th Circuit will rule on the Hand v. Scott case, but if Amendment 4 passes, Jon Sherman, senior counsel at the Fair Elections Legal Network, said the lawsuit would be rendered moot, because all the plaintiffs would regain their right to vote.
Morales-Doyle of the Brennan Center said creating exemptions for specific convictions is an exception to the larger trend of how voting rights restoration is playing out elsewhere across the country, in part because of the unique political circumstances in Florida.
“The discussion around felon disenfranchisement is more typically around ‘when does the restoration come?,’” he said. “Is it after you’ve paid off all your legal obligations, as soon as you’re released from prison, or whether you’ve completed probation and parole?” Morales-Doyle pointed to New York, which is one of the few states left in the country where citizens still lose their right to vote while on parole. (In April, Democratic Gov. Andrew Cuomo announced he intends to restore voting rights to the more than 35,000 felons on parole.)
“The sense of fairness is central to the question of rights restoration, the idea that if you’ve served your sentence, you should be allowed to vote,” he says. “I think what’s happening in Florida, making it contingent on the crime, is unique.” He pointed out that Florida faces some unusual political circumstances, with its anomalous rate of felon disenfranchisement, and the tough 60 percent threshold needed for an amendment to pass.
“Without passing judgment on whether that was the best place to come down, my point is just that there has to be a really broad base of support for this amendment, so the question of who will be won over by what policy is what led to the current moment,” he said.
With the election just two months away, Volz said campaign organizers will continue to hold events, educating the public about the importance Amendment 4 and rights restoration.
Rouson, the state senator, said it’s been hard for activists to sustain focus on the initiative while the primaries loomed. “We legislators could all do more to raise awareness around this issue, and there are grassroots champions across the state doing the work, but I also think the attention of the voters was divided because of the primary,” he said.
There are 13 constitutional amendments on the Florida ballot this cycle. “The worry is that voters will get ballot fatigue, under-vote, or not vote on everything,” Rousen said. “We need to educate voters early and often.”