In the lead-up to this year’s midterm elections, HuffPost Opinion asked writers to examine the many ways that voting ― a fundamental and hard-won civil right ― is imperiled in the United States. In far too many cases, Americans are blocked from exercising that right. This piece is part of that series, Democracy Denied.
The United States stands out among most modern democracies for all the wrong reasons: The country disenfranchises millions of American citizens who have a criminal conviction in their past. In my home state of Florida, the problem is particularly acute; one out of every ten adults is disenfranchised, for life, for this reason. In the 2018 midterm elections, Florida voters have a chance to change their state’s constitution and restore voting rights to over a million people.
In 2014, the U.N. Human Rights Committee criticized the United States for its disenfranchisement of ex-felons, citing “its disproportionate impact on minorities, and the lengthy and cumbersome state voting restoration procedures.” The committee recommended that the U.S. reinstate the voting rights of people “who have fully served their sentences” and “review automatic denial of the vote to any imprisoned felon, regardless of the nature of the offence.”
The U.N. committee’s criticism was directed at the United States as a whole, but 25 percent of American citizens who are disenfranchised for a past conviction live in Florida. Changing the law in Florida could make an enormous dent in this American problem.
There are two legal documents that permit the government of Florida to revoke its citizens’ voting rights. One is a little-noticed part of the U.S. Constitution called the penalty clause, and the other is the Florida Constitution, which has allowed felony disenfranchisement for over a century.
“In my home state of Florida, one out of every ten adults is disenfranchised, for life.”
The penalty clause of the U.S. Constitution is tucked into the 14th Amendment among clauses about who is responsible for paying Civil War debts. The clause was added to the U.S. Constitution to encourage southern states rejoining the union after the Civil War to grant its entire adult male population the right to vote. The “penalty” in the clause is a reduction in the size of a state’s congressional delegation in proportion to the number of voters who lost the ability to vote.
The overall intent of the penalty clause was to encourage all American states to have an inclusive democracy. But there’s a catch: The penalty clause does not apply to states that disenfranchise individuals for participating in a crime. Thus, Florida is allowed to take the vote from the convicted and won’t lose any congressional seats for doing it. Florida has chosen to disenfranchise over one million citizens; you can lose your voting rights for crimes ranging from violence to non-violent possession of marijuana.
For Florida ex-offenders who have served their time and completed their probation, the only way to be re-enfranchised is to beg the governor for their rights back. That might sound like hyperbole, but it is not. Republican governor Rick Scott sits on a clemency board with Attorney General Pam Bondi, Commissioner of Agriculture and Consumer Services Adam H. Putnam and Chief Financial Officer Jimmy Patronis. They have complete discretion to restore civil rights to individuals who have served their debt to society.
When a person goes to beg for her rights back, the governor can ask her almost anything, including her religious preferences. In June 2018, the clemency board heard appeals from 68 applicants and restored the rights of restored the rights of 40. That might seem impressive percentage, until you learn that there were more than 10,000 applications for rights restorations pending at the time that weren’t heard.
“For Florida ex-offenders who have served their time, the only way to be re-enfranchised is to beg the governor for their rights back.”
This “fatally flawed” clemency board process completely lacks standards, a federal judge recently declared in the case Hand v. Scott. The trial judge in the case described the clemency applicant’s rights as “locked in a dark crypt” to which only the state has the key. “But the state has swallowed it,” he continued, and “only when the state has digested and passed that key in the unforeseeable future — maybe in five years, maybe in 50… does the state in an ‘act of mercy,’ unlock the former felon’s voting rights.”
The judge ultimately ruled that the Florida clemency process violated the U.S. Constitution, and Florida has appealed to the 11th Circuit. In the meantime, the lower court decision striking down the clemency board has been put on hold. As a consequence, for now, Florida’s standardless way of restoring voting rights a handful of people at a time, remains in place. It also means that over a million citizens in the state still cannot vote.
Florida is not alone in disenfranchising ex-felons, but some governors have been more magnanimous in restoring civil rights. In 2016, Virginia Governor Terry McAuliffe signed an executive order that re-enfranchised 200,000 people in a single day.
In 2015, with only two weeks left in office, Kentucky Governor Steve Beshear issued an executive order restoring voting rights for non-violent former offenders who had completed their sentences, allowing 170,000 former offenders to register to vote. But the following month, his successor, Republican Matt Bevin, rescinded that executive order. Even acts of magnanimous restoration of the franchise leave citizens’ most essential civil rights at the whim of whoever happens to occupy the Governor’s mansion.
Fortunately, Florida voters have a unique opportunity to change the trajectory of Florida’s history and take the power back from the Governor. Amendment 4 would change the Florida Constitution to automatically restore voting rights to individuals who have served their time and probation, so long as they did not commit a sex crime or murder.
Support for Amendment 4 is broad, ranging from celebrities like T.I., John Legend and Fat Joe to voting rights advocates like the Brennan Center, the Campaign Legal Center, the American Civil Liberties Union and the League of Women Voters; it’s also backed by criminal justice reformers like the Sentencing Project, Second Chances and the Southern Poverty Law Center. Editorial boards from the Tallahassee Democrat to the Orlando Sun-Sentinel to the Naples Daily News to the Miami Herald have also endorsed “yes on 4.” Ben & Jerry’s is sending an ice cream truck around Florida to drum up support for Amendment 4 as well. Even Florida’s Catholic bishops are also supporters.
Florida isn’t just a national embarrassment when it comes to voting; it’s an international disgrace. But in the fall of 2018, the voters of Florida can vote to expand the vote. By adopting Amendment 4, voters can get Florida out of the voting-rights dog-house.
Ciara Torres-Spelliscy is a Professor of Law at Stetson University College of Law, a Fellow at the Brennan Center and the author of the book, Corporate Citizen?: An Argument for the Separation of Corporation and State.