By: Alannah Shubrick
All men are created equal. Then, some of those men go forth into the world and commit felonies. While felons in Maine or Vermont can cast ballots from the comfort of their prison cells, those convicted of felonies in Florida permanently lose their ability to vote.
Florida is one of only four states that permanently disenfranchise felons. Each of these states has procedures whereby individual felons can apply for clemency. However, in Florida, felons must wait an additional five years after completing the terms of their sentence before applying for clemency consideration. Then, only about 8% of clemency requests are granted.
In response to these laws, Floridians for a Fair Democracy, a political committee from Clearwater, proposed a constitutional amendment to restore the franchise to 1.6 million Floridians who have successfully served all terms of their felony sentence. Floridians for a Fair Democracy argue that felons who have served their time should not be subject to continuing punishment because they have paid their debt to society.
To have the proposed amendment placed on the 2018 ballot, Floridians for a Fair Democracy is required to produce a petition signed by 766,200 registered Florida voters. In an advisory opinion, the Florida Supreme Court confirmed that the Voter Restoration Amendment satisfies all criteria to appear on the 2018 ballot, provided it receives the requisite number of signatures before the February 1 deadline. This seems unlikely since the petition depends on support from Floridians who are not directly affected by felon disenfranchisement (of course, support from registered voters would also be necessary to adopt the amendment on election day). The proposal still needs an additional 592,145 signatures. Fortunately, the ACLU has pledged $5 million to help ensure that the proposal receives the requisite number of signatures.
To make the proposal more palatable to Floridians, supporters repeatedly emphasize one of the amendment’s provisions which continues to exclude felons convicted of murder and some forms of sexual assault from the franchise. This exception may have been included as a compromise intended to improve the likelihood that Floridians will vote to adopt the amendment. However, some might argue the provision undermines the entire argument for restoring felon voting rights and reeks of logical inconsistency. If we are to believe that voting privileges should be restored when, and only when, a felon has paid his debt to society, why is the limiting provision necessary? If a murderer has repaid his debt to society by serving all the terms of his sentence, why should he continue to be excluded from the franchise? Surely in instances where the societal debt cannot be repaid the felon is sentenced to death or life-imprisonment, and therefore unaffected by the amendment anyway.
As unsatisfying as such logical inconsistency may be, that is not the only problem with the Voting Restoration Amendment’s limiting provision. It ruffles some 14th Amendment feathers. By restoring the franchise to some felons who have served their sentence, while permanently excluding others, the provision treats similarly situated people differently. This appears to implicate the Equal Protection Clause. Although many states have passed similar laws, the Supreme Court has not directly considered whether they are constitutional under the explicit authority of § 2 of the 14th Amendment, or whether the Equal Protection Clause still applies within that context.
In any event, if the amendment makes it onto the 2018 ballot, it still requires 60% voter approval to pass. Even if the amendment is not adopted, Florida will likely continue to receive pressure to change its felon voter laws. Considering the overwhelming pattern of increased felon voter rights across the country, it seems inevitable that Florida will eventual extend the franchise in some way. An extension of felon voting privileges would substantially increase the number of registered Democrats in Florida. In the infamous swing state, such a shift in the eligible voting population could make Democrats in Florida much more comfortable in the future.