TAMPA, Fla. (WFLA) — Voting is considered by many to be one of the most important and fundamental rights that Americans have. For millions of convicted felons, it’s also a right that has been stripped away even when they have completed their sentences.
Florida alone has one-fifth of a staggering population of 6.1 million people across the United States who are convicted felons that could be eligible to have their voting rights restored. That could translate into an equal number of potential voters after 2018 thanks to a proposed constitutional amendment that will appear on the ballot in November.
A separate track to restore those voting rights emerged in a Tallahassee federal court on Friday, where a judge found the entire restoration of rights process in Florida, known as clemency, unconstitutional.
THE AMENDMENT APPROACH AND PROCESS TO RESTORE VOTING RIGHTS
The “Voter Restoration Amendment” would automatically restore the rights of more than 1.6 million felons who have not been convicted of murder or sexual offenses once they complete their entire sentence. Those sentences would include any prison time, community control (often called “house arrest,”) probation or any type of supervised release from prison under the Department of Corrections – and any combination of those sentences.
In 2016, the group behind the ballot initiative “Floridians for a Fair Democracy” gathered enough signatures to petition the Florida Supreme Court to review the amendment change with input from the Attorney General’s office. Any proposed amendment change goes through a similar review process to ensure that only one issue is addressed, called the “Single Subject Rule” and that the plain language of the amendment is not misleading to voters.
Once the proposed amendment change is approved, then the group can move on to the next phase – seeking the required number of signatures to get the amendment on the ballot for voters to consider.
Late last month that became a reality.
The number of signatures needed to accomplish that is set by Florida election rules and is set at 8 percent of the voting population from the previous presidential election. That magic number this year is 766,200.
The other requirement is those signatures must come from 14 of the state’s 27 Congressional districts.
Moving forward, in November 60 percent of Florida voters would have to vote in favor of the amendment for it to become law.
The politics of this issue will likely take on many forms before Election Day rolls around. Supporters will argue that it will reverse years of disenfranchisement against African-American and minority voters with felony convictions – including driving on a suspended license, felony shoplifting (grand theft of more than $300 worth of merchandise,) simple possession of cocaine or other drugs.
It will also include restoring rights to those convicted of more serious offenses like aggravated assault, aggravated battery, drug trafficking and burglary – crimes involving violence against victims that would lead other groups to oppose this amendment, demanding specific limitations or case-by-case review.
But supporters of the amendment may have found a new ally in the form of a federal court decision that was just handed down on Friday. That opinion already had Gov. Rick Scott firing back on restoring felon voting rights on Friday.
HOW WILL FEDERAL COURT DECISIONS IMPACT THE AMENDMENT PROCESS?
In a surgical analysis of how Florida’s Executive Clemency Board considers the restoration of felon rights, Tallahassee Federal District Court Judge Mark Walker struck down the entire process as unconstitutional.
In considering the lawsuit filed by a group of convicted felons, Walker found that the state – through its clemency process – violated the right to free expression and free association, which courts have ruled go hand-in-hand with the right to vote, as well as the 14th Amendment Right to Due Process in having their rights restored.
The judge noted that the Board is made up of four elected officials, with “unfettered” power, according to the opinion. He also noted that the meeting schedule (four times a year) and the length of time granted to make a felon’s presentation was limited to 10 minutes (five minutes for the felon and five minutes for supporters) was burdensome enough to make it unconstitutional.
Walker also looked at how the Board sets its own rules and standards, including a rule implemented by Gov. Scott in 2011 that imposed mandatory waiting periods of at least five years before someone could even apply for clemency.
Gov. Scott’s office responded to Judge Walker’s ruling on Friday saying, “The Governor believes that convicted felons should show that they can lead a life free of crime and be accountable to their victims and our communities. While we are reviewing today’s ruling, we will continue to defend this process in the court.”
Scott’s rules also reversed the course set by former Gov. Charlie Crist beginning in 2007 to relax clemency rules, leading to the restoration of rights of 154,000 felons by 2011, according to the Brennan Center for Justice at New York University College of Law.
The impact of Judge Walker’s ruling could be two-fold on the pending constitutional amendment and clemency in general.
First, if the Tallahassee case does not make its way to the United States Supreme Court before the 2018 election, the opinion could give supporters firm legal ground to argue that the amendment is needed and that one judge has found the current process to be unconstitutional. Where the worlds of law and politics once again collide, supporters can point to a judicial analysis to explain their position more thoroughly and with constitutional authority. This would work in the way that supporters of same-sex marriage used the 14th Amendment’s Due Process and Equal Protection clauses to win support in the courts of law and public opinion.
Second, if the case gets to the Supreme Court before the 2018 election, and the justices agree that it is unconstitutional, the amendment will be moot. That could trigger several options.
The Court could rule that once sentences are completed, voters right should be restored end of story – and those 1.6 million eligible felons in Florida could potentially vote in the 2018 election. However, they could also direct either state legislators or the governor’s office to come up with new, streamlined procedures and laws regarding the restoration of voting rights and clemency in general.
The Court took a similar approach to Florida’s Death Penalty law when legislators were forced to write a law that required a 12-0 unanimous jury verdict for a death sentence with other new provisions built in.
A new legal battle could also open if voters pass the amendment, but the Supreme Court finds the clemency process to be legal, pitting the will of the people against the court and the state of Florida, including the governor.
A LOOK OUTSIDE THE SUNSHINE STATE AND THE ISSUE OF FELON VOTING RIGHTS
In its work to track various paths to voting rights for felons, the Brennan Center has also gone state by state, looking at the process in all 50 states and how those rights are restored.
Florida is only one of three states along with Kentucky and Iowa that strip felons of their voting rights with no path to restoration other than the discretion of the governor. Virginia has a similar process. However, former Democratic Gov. Terry McAuliffe had already begun restoration of felon voting rights through his own review ahead of the state’s 2017 election. McAuliffe was replaced by Ralph Northam, also a Democrat, as Virginia’s governors only serve one term in office.
States like Alabama and Tennessee have a slightly less restrictive process than Florida that allows for the restoration of rights for some felonies. From Texas through the Midwest and up to Minnesota, felons can apply to restore their rights as soon as they complete their entire sentence (prison, any form of supervision and parole).
Looking at Florida’s proposed amendment, California and New York would provide the same models allowing the automatic restoration of voting rights upon completion of a felon’s entire sentence. Again, that includes prison, supervision and parole.
Illinois and “Rust Belt” states including Indiana, Ohio and Pennsylvania automatically restore voting rights after a prison sentence is complete – allowing people who are even on probation to vote.
The outliers are Vermont and Maine who do not take away voting rights at all.
ENDGAME IN SIGHT?
Regardless of how this process is fixed, either by constitutional amendment or possibly the Supreme Court, between 2018 and 2020, millions of people could be re-introduced to the voting process and potentially become the single biggest influence on future elections since the Voting Rights Act of 1965.
That includes the next presidential election.
If the Supreme Court steps in before November, that could also include the 2018 midterm elections and the Florida gubernatorial race.
One final historical note, the issue of voter disenfranchisement dates back to the post-Civil War era and 1869.
Twenty-nine states enacted laws that stripped convicted felons of their rights to vote – nine years before the 14th Amendment became law, granting the rights of Due Process and Equal Protection to all Americans.
About 148 years later, this issue is before voters and potentially the Supreme Court of the United States to decide how this next chapter of our voting rights history will be written.