Law and Justice: Felons and Voting Rights in Florida
Felonies in Florida
Purchase of over 20 grams of cannabis is a third degree felony, as is writing a worthless check for over $150. Three times with a suspended license and you’re a felon. As many as 750,000 people in Florida were barred from voting for having been convicted of a felony.
Florida long barred those convicted of a felony from voting. Civil rights groups see the loss of franchise of those with criminal records as a legacy of the Jim Crow era of pervasive legal discrimination by race. Part of that heritage of poverty and oppression is that Black Floridians of voting age are disproportionately affected by the lifetime ban on voting by persons convicted of felonies.
One of the mechanism of oppression of African Americans was the imposition of a poll tax, which Florida imposed from 1877 - 1937 - the year the Supreme Court upheld poll taxes as constitutional. In 1964 the poll tax was abolished for federal elections by the Twenty Fourth Amendment to the Constitution of the United States. It provides
The right of citizens of the United States to vote in any primary or other election for President or Vice President for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.
Though the Twenty Fourth Amendment applied only to federal elections, the U.S. Supreme Court ruled 6–3 in Harper v. Virginia Board of Elections, 383 U.S. 663 (1966), that poll taxes for any level of elections - state or federal -are unconstitutional. In Harper in an opinion by William O. Douglas the court applied “heightened scrutiny” to laws that limit access to the franchise on the basis of wealth. It said these violated the Equal Protection Clause of the Fourteenth Amendment. Subsequent litigation related to potential discriminatory effects of voter registration requirements has generally been based on application of this clause.
Florida - “Amendment 4"
In 2018 Florida voters adopted “Amendment 4" actually Amendment VI, Section 4 of the state’s Constitution, it provides
Article VI, Section 4. Disqualifications.—
(a) No person convicted of a felony, or adjudicated in this or any other state to be mentally incompetent, shall be qualified to vote or hold office until restoration of civil rights or removal of disability. Except as provided in subsection (b) of this section, any disqualification from voting arising from a felony conviction shall terminate and voting rights shall be restored upon completion of all terms of sentence including parole or probation.
The Republican-controlled Legislature then adopted §98.0751 a clarification? or amendment? new restriction? On the restoration of voting rights. It provides that felons must settle “all terms” including the fines, costs, restitutionary and other financial obligations imposed at sentencing in order to regain eligibility to vote restored. Gov. Ron DeSantis, a Republican, signed it into law in 2019 The state’s lawyers argued that voters knew when they supported Amendment 4, the measure restoring voting rights, that felons would have to pay their outstanding debts before becoming eligible to vote.
In Jones v. DeSantis , 401 F. Supp 3d 1284 District Judge Robert L. Hinkle construed “all terms of sentence including parole or probation” as what a “reasonable voter” would have understood was meant. Applying the canon of construction expressio unius est exclusio alterius [to state one is to exclude the others] he interpreted the voting bar to have been lifted for all who had completed their terms of incarceration, parole, and probation. Hinkle explained:
As the Secretary [of State] emphatically notes, "all" means "all." But the question is not whether "all" means "all"; it obviously does. The question is all of what. This order divides the discussion of this issue into four parts: (a) fines and restitution; (b) other financial obligations imposed at the time of sentencing; (c) amounts converted to civil liens; and (d) the bottom-line treatment of these issues for purposes of this order.
As to the statute passed by the Legislature, Hinkle ruled that it violated the equal protection clause of the Constitution's 14th Amendment because it conditioned the right to vote on ability to pay. The conversion of a judgment of conviction’s terms to a civil obligation implicates the 24th Amendment “poll...or any other tax”, the judge of the Northern District of Florida in Tallahassee, the state capitol, explained. The 24th Amendment provision had, by virtue of the precedent of Harper v. Virginia, been extended to the states.
A panel of the 11th affirmed Hinkle’s ruling in Jones v. Governor of Florida, 950 F. 3d 795 . The court ruled that heightened scrutiny as in Harper is warranted - and that the Equal Protection clause of the 14th Amendment bars discrimination on the basis of inability to pay fines.
But last week the full 11th Circuit Court of Appeals, en banc, voted 6-4 to reverse in a series of opinions totaling 200 pages. The majority found that because disenfranchisement is a long established practice felons have no fundamental right to vote. The Fourteenth Amendment therefore does not apply to them. The majority of the federal Court of Appeals Court judges explained:
As Judge [Henry] Friendly explained, early American States may have based the practice on the Lockean understanding that those who break the social contract by committing a crime “have abandoned the right to participate in further administering the compact.” Green v. Bd. of Elections, 380 F.2d 445, 451 (2d Cir. 1967). And as a practical matter, “it can scarcely be deemed unreasonable for a state to decide that perpetrators of serious crimes shall not take part in electing the legislators who make the laws, the executives who enforce these the prosecutors who must try them for further violations, or the judges who are to consider their cases.”
The majority - five of whom were nominated by President Donald Trump - elaborated:
When the States ratified the Fourteenth Amendment in 1868, 29 of their constitutions permitted or required felon disenfranchisement. Richardson v. Ramirez, 418 U.S. 24, 48 & n.14 (1974). Section 2 of the Fourteenth Amendment expressly allows States to disenfranchise criminals without having their representation reduced in Congress. U.S. Const. amend. XIV, § 2. Today, almost all States disenfranchise felons in some way, although the recent trend is toward expanding access to the franchise.
(One of the majority, a former justice of the Florida Supreme Court, Judge Barbara Lagoa, was named by Mr. Trump last week as among those he would consider nominating to a potential future seat on the Supreme Court.)
Restoring felons’ voting rights could vastly grow the electorate in the nation’s biggest presidential battleground state. An expert for the American Civil Liberties Union and other civil rights groups testified at trial that more than 774,000 felons in Florida owe legal financial obligations (LFOs). [Is that a value judges are called upon to aid?]
The dissent of Judge Jordan, joined by three colleagues, was scathing:
Incredibly, and sadly, the majority says that Florida has complied with the Constitution. So much is profoundly wrong with the majority opinion that it is difficult to know where to begin. But one must start somewhere, so I will first turn to the facts, those “stubborn things,” Campbell v. Fasken, 267 F.2d 792, 796 (5th Cir. 1959), which though proven at trial and unchallenged on appeal, are generally relegated to the dustbin in the majority opinion.
The [en banc] majority proceeds as though the reality on the ground does not matter, but the record tells a different story. After an eight-day bench trial, the district court issued a 125-page opinion containing the following findings of fact—none of which Florida challenges on appeal.
1. “[T]he overwhelming majority of felons who have not paid their LFOs in full, but who are otherwise eligible to vote, are genuinely unable to pay the required amount, and thus, under Florida’s pay-to-vote system, will be barred from voting solely because they lack sufficient funds.” Jones II, 2020 WL 2618062, at *16. [emphasis original]
It is worth noting that although the post Civil War Fifteenth Amendment (1870) bars discrimination based on “race, color or previous condition of servitude”, the Nineteenth Amendment extends the franchise to women, and the Twenty Sixth sets the voting age at 18 years, the federal Constitution does not establish a right to vote. It remains in the hands of the states to set the terms. In 2019 the Supreme Court dismissed Rucho v. Common Cause, asserting it lacked jurisdiction to intervene in cases asserting that states legislative and Congressional district lines discriminated against voters on the basis of their political party. The Supreme Court in 2013 in Shelby County v. Holder freed southern states from the Voting Rights Act requirement to obtain federal approval of changes in voting procedures. Unless there are dramatic changes in the composition of the Congress - or its Rules - The struggle ahead to expand the franchise will be on a state by state basis, with neither federal courts nor Congress playing a substantial role.
- GWC
updated February 4, 2021
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