By Jenna Lewinstein (SC ’19)
Voting rights activists enjoyed a small victory on February 2, 2018, when Florida District Judge Mark Walker ruled that barring former felons from voting is unconstitutional. Unlike most states, Florida’s felons do not automatically get their voting rights back when released from prison. Instead, felons must wait five years before appearing in front of a clemency board to seek re-enfranchisement. Historically, clemency boards favor those whose political ideology are in line with their own. Because of the partisan bias innate to clemency boards, a lawsuit was brought against Gov. Rick Scott by The Fair Elections Legal Network on behalf of nine felons in 2017. In November 2018, a measure on the Florida state ballot will allow the populus to formally determine if voting rights should automatically be restored to felons in the state after they have served their sentence. However, this measure would exclude convicted murderers and sex offenders, largely based on the severity of the crime. Should the measure pass, 1.2 million former felons in the state of Florida may be re-enfranchised, which individually, may increase their agency and political efficacy, but altogether, has the potential to change the outcome of elections in the swing state.
Like other states, Florida’s state constitution takes away voting rights from convicted felons, but it is up to governors to determine how they can be restored. Before 2011, Governor Charlie Crist introduced a policy that automatically restored rights to felons without necessitating applications and hearings. During his time as governor, about 154,000 former felons got their right to vote back.
The current system in Florida was put into place by Gov. Scott when he took office. In the seven years since the current system was put in place, only 3,000 people have been granted re-enfranchisement. Even though the clemency panel has four members, it is led by the governor who can utilize his “unfettered discretion to deny clemency at any time, for any reason.”
The clemency board analyzes each case, using quantifiable factors like drug and alcohol usage, but also subjective factors such as “level of remorse.” Because of the innate subjective nature of the clemency board, minor transgressions like parking tickets
can be used against some petitioners but not others. Judge Walker brought up a casewhere a white man asked for voting clemency and received it immediately once he disclosed his crime was illegally voting for Gov. Scott. The plaintiff identified five similar cases where former felons were denied voting rights after casting illegal ballots. All were rejected, and four of them were African American. Once rejected, petitioners need to wait two years before re-appearing before the panel. Currently there are over 10,000 former felons backlogged.
The disenfranchisement of felons has roots in racism, and began shortly before the Civil War, as means to prohibit the the largely black population of felons from voting. At this time, 80% of states enacted measures like these in order to stop the largely black population of felons from voting. Even today, minority males still face the brunt of disenfranchisement. Most notably, over one third of the nation’s prisoners are black. While the voting rights of currently incarcerated felons voting is generally an uncontested issue, the voting rights of released felons who served their sentencing is a widely debated issue.
Gov. Scott’s communications director defended the current system in a statement claiming, “The discretion of the clemency board over the restoration of felons’ rights in Florida has been in place for decades and overseen by multiple governor.” The governor has also claimed Judge Walker’s ruling is a departure from Supreme Court precedent set from Richardson v. Ramirez in 1974. This California case was brought before the U.S. Supreme Court, after the California Supreme Court ruled that the state’s felon disenfranchisement law violated the Equal Protection Clause of the 14th amendment. However, the Supreme Court found the law constitutionally permissible under the second section of the 14th amendment, therefore Florida’s law would fall under the same ruling. Without support from the Supreme Court, the California state legislation amended its constitution in 1974 to limit this kind of disenfranchisement.
Nearly all states today prevent currently incarcerated criminals from voting, but only Florida, Iowa, Kentucky, and Virginia do not restore voting rights immediately after sentence completion. As Florida, Iowa, and Virginia are swing states, the re-enfranchisement of former felons could cause greater voter participation in elections, which in turn may result in elections that are more representative of the will of the people. Further, studies have demonstrated a correlation between former felons who vote and their success outside of prison. Between 1997 and 2000, the Sentencing Project followed released felons and found that those who voted were less than half as likely to be rearrested as those who did not vote. All in all, restoring voting rights to former felons, excluding murderers and sex offenders, is a way to show a society’s commitment to the rehabilitation of criminals and support for their reintegration into society, while also encouraging civic engagement.
