On Florida and Felony Disenfranchisement

By Francis Northwood (PO ’21)

Three counties suspend the right to vote of those convicted of a felony: Armenia, Chile, and the United States. Felony disenfranchisement, which is the restriction of felon’s right to vote, can be anywhere between five years to the rest of their lives. Florida, while home to six percent of all Americans, is home to 25% of the Americans who cannot vote due to felony charges. Florida remains one of the four states where felons do not regain the right to vote automatically after being released from prison. On Florida’s ballot this year is a measure attempting to stop this practice. Florida Amendment 4, the Voting Rights Restoration for Felons Initiative, would specifically restore the right to vote for those with prior convictions, excluding people who have committed a sexual offense or murder. The initiative is headed by a committee named Floridians for a Fair Democracy, who is primarily funded by the American Civil Liberties Union (ACLU). this initiative marks a larger trend of the public rejection of felony disenfranchisement.  

The twenty-fourth amendment made any attempt to deny or abridge a citizen’s right to vote based upon a failure to pay a poll tax or tax unconstitutional. The amendment was created after the 1966 Supreme Court Case Harper v. Virginia State Board of Elections, where the Court decided that the Poll Tax Virginia had instituted was unconstitutional on the grounds that one’s economic status one’s economic status should not in any way disqualify a voter.

Despite the precedence of this case, the Supreme Court held up the constitutionality of felony disenfranchisement in the 1974 case Richardson v. Ramirez. Here the court found that Section 2 of the Fourteenth Amendment—containing the clause detailing that equal protection must be granted to all voters (the Equal Protection Clause)—did not prohibit the exclusion of voters who commited a crime. This decision could have ended the discussion, had the Supreme Court not posed a burden (whether or not it actually violate the Equal Protection Clause) in which felony disenfranchisement could be unconstitutional. In the 1985 case Hunter v. Underwood, the court decided that the constitutionality of specific felony disenfranchisement hinges upon whether or not a case of felony disenfranchisement involves both [an] impermissible racial motivation and racially discriminatory impact.”

Felony disenfranchisement, similarly to policies such as the poll tax, is encumbered with a racist history. The Jim Crowe Era—the time when states could enforce segregation laws at will—was characterized by the systematic marginalization of minorities (primarily African-Americans) through these sorts of policies. The results today are reminiscent of the Jim Crowe era, as 31% of black men in Florida are still not eligible to vote. This in turn carries an obvious implication of lack of proper representation—how can a representative accurately stand in for all of their constituents if such a large portion of them cannot even vote?

For felony disenfranchisement to be legally challenged, there has to be a clear racial discriminatory impact. Racial motivation is far harder to prove. Despite the fact that there is such a large number of black men unable to vote—which would appear to be a racial discriminatory impact—Florida has not resorted to the state judiciary. Instead, Florida’s citizens have challenged Felony Disenfranchisement via ballot measure. Maine and Vermont recently granted felons the right to vote while serving in prison. This, along with Florida eliminating older felony disenfranchisement, shows that the conversation around voting rights for felons is trending up in the wider public conversation.  

 

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