By: Ethan Emery
With regards to the right to vote, a fair amount of press time has been spent on the ongoing situation surrounding the voting rights of felons in Virginia. Virginia Governor Terry McAuliffe has attempted to return voting rights to thousands of Virginia felons, even in the face of a countermanding Supreme Court order. However, a little further South, a much larger group of the disenfranchised is seeking similar reforms.
A group called the Florida Rights Restoration Coalition is seeking to add an amendment to the 2018 ballot which would provide an achievable pathway to vote restoration for the over 1.6 million Floridians who find themselves disenfranchised under the current system.
Florida’s situation is notable for two reasons. In the average state, only about 2% of the population fall into the group affected. In Florida, that number is 9%. In Florida, voting rights may only be restored on the discretion of the Governor and a clemency board. This applies to all felons, regardless of the nature of the offense, or time since the sentence was completed. Only a handful of other states, including Kentucky, Iowa, and Virginia, have policies this severe.
The other notable element of Florida’s policy is that the greater portion of the restrictions are relatively recent. Under former Governor Charlie Crist, the clemency board automatically restored the rights of citizens that had completed their sentence, restoring rights to over 150,000 during his four years in office. This was a natural progression from the policies of former Governor Jeb Bush, who also sought to enfranchise those who had completed their sentence. The current system was created by current Governor Rick Scott, with support from Pam Bondi, the State Attorney General. Under Scott, who has been in office since 2011, only about 1,500 citizens have had their rights restored.
To even make the 2018 ballot, the initiative has much ground to cover. To be placed on the ballot, the initiative must receive signatures from citizens meeting or exceeding 8% of the turnout for the previous presidential election. That number has been well in excess of 600,000 for the last decade. Previous ballot initiatives seeking to address the subject have failed due to a lack of signatures. Even if the initiative succeeds in making the ballot, it must then also achieve 60% of the vote to be enacted.
Regardless of the success of the current ballot initiative, supporters will argue that the subject raises serious Constitutional questions. Mainly, that the disenfranchisement of felons is suspect on equal protection grounds, as minority communities, especially African-Americans, are disproportionately represented in the felon community. This line of attack is provided for by the precedent set in Hunter v. Underwood, in which the Supreme Court struck down a provision of the Alabama Constitution that disenfranchised citizens convicted of misdemeanors involving “moral turpitude.” The Hunter rule requires a multi-prong test. First, the plaintiff must demonstrate discriminatory intent. Then, the plaintiff must demonstrate that the policy has disparate impact on a protected class. Finally, the Court held that the plaintiff must show that the law would not have been adopted but for the discriminatory purpose.
Victories in this arena have been infrequent, however. In 2010, the 9th Circuit upheld such a law in Washington state in Farrakhan v. Gregoire. The 9th Circuit held that the plaintiffs needed to show that the law was enacted with the specific intent to discriminate against a protected class if they wished to bring suit under section 2 of the Voting Rights Act. Evidence of discrimination without evidence of intent was not considered adequate.
Alabama is facing a lawsuit over similar subject matter, which could end up establishing new precedent on the matter in light of an evolving sociopolitical climate. The suit was filed on September 26, 2016, so the story surrounding it is still developing.
The severity of Florida’s laws on the subject, coupled with the over-representation of the black community in the criminal justice system, has resulted in roughly 17% of the voting age black population being unable to vote. In practical terms, supporters have speculated that if those citizens were able to vote, they may have altered the outcome of the 2000 Presidential election. Opponents argue that disenfranchisement is a justifiable punitive measure, and a legitimate policy pursuit. In the words of AG Bondi, “[E]very felony is a serious breach of the bonds that unite our society. Rather than obligate the government to initiate the restoration process, it is reasonable to require felons to ask to have their rights restored.”