Felon Disenfranchisement: The Legal Necessity to Enact Change in Florida

Out of all the states in the union, Florida maintains some of the most strict and unjust felon disenfranchisement laws. Felons who reside in Florida, as well as those who live in Iowa, Kentucky, and Virginia, permanently lose their right to vote even after completing the terms of their sentences. The only method through which individuals may have their rights restored is through the approval of Florida’s Executive Clemency Board, comprised of the Governor and the three highest ranking elected state officials.[1] For the average individual, this process typically takes over a decade, and with the Board having no official set of standards by which they grant clemency, their decisions may be arbitrary or downright discriminatory. While equally strict felon disenfranchisement laws exist in Iowa, Kentucky, and Virginia, Florida serves as a unique case study, as this February a federal judge in Florida struck down the system as unconstitutional in Hand v. Scott (2018) and in November there will be a referendum on the ballot that proposes sweeping re-enfranchisement of felons once they have completed their sentences.[2] Taking Judge Hand’s argument a step further — due to conflicts of interest and biases — all clemency boards that make decisions on a case-by-case basis, especially those comprised of elected officials, are and must be deemed unconstitutional in practice.

Under the 14th Amendment, the state has the right to disenfranchise convicted felons.[3] The state, if particularly punitive, even has the right to disenfranchise felons permanently. But once a state provides the opportunity for the re-enfranchisement, the process of restoration must also be in accordance with each citizen’s afforded constitutional rights. Currently, decisions made by the Executive Clemency Board in Florida are often arbitrarily determined by factors such as "drug and alcohol use, traffic violations, whether the applicant has voted despite legally being disenfranchised, employment status, family, and the Board’s perceptions on the applicant’s attitude, level of remorse, and whether she has turned her life around.”[4] In regards to decisions made by the board, the Governor even states, “We can do whatever we want” at a clemency hearing.[5] Clemency decisions in recent history have even come down to a mere difference of opinion between the board and the felon in question. In one case, an individual was denied clemency when he voiced an opinion before the board against felon disenfranchisement in general.[6]

The decisions of the Clemency Board have proven to be made by arbitrary factors, which conflicts with previous court precedents. In Shepherd v. Trevino (1978), the plaintiffs challenged a Texas statute which provided a mechanism for the re-enfranchisement of state felons, but no similar mechanism for federal probationers. The decision in Shepherd v. Trevino states “Nor can we believe that section 2 [of Amendment 14] would permit a state to make a completely arbitrary distinction between groups of felons with respect to the right to vote.”[7] Therefore, in order for clemency hearings to be constitutional given this precedent, there must be sweeping standards that apply to all applicants so that no arbitrary distinction — such as whether a felon agrees with their own disenfranchisement — influences the restoration of their rights.

Executive Clemency Boards also present a violation to the 15th Amendment, which states that the right of citizens to vote cannot be abridged on account of race.[8] When race can serve as a near certain proxy for political party affiliation and the clemency board is comprised entirely of partisan elected officials, there is an inherent conflict of interest. Whether these officials harbor any actual prejudices against people of color notwithstanding, the system as is allows officials to violate the 15th Amendment in their own favor under the guise of denying clemency due to arbitrary reasons as outlined above. An overwhelming majority of felons in Florida are black, and it cannot help but be noticed that the number of felons granted clemency varies significantly depending on the party of the official in office. For example Governor Crist, a Republican turned Democrat, granted clemency to more felons in 2008 than Jeb Bush did his entire tenure as Governor of Florida.[9] Furthermore, considering that there has never been a person of color to serve on Florida’s Executive Clemency Board, the probability is high that board members are influenced by conscious or subconscious racial biases when evaluating clemency cases, especially when arbitrary factors such as applicant attitude are taken into account.[10][11][12][13]

Although unspoken racial biases for the most part are difficult to track, problematic behavior by Florida's Executive Clemency Board suggesting racial bias has been observed under the current administration. Steven Warner, a white felon who voted illegally during the 2010 gubernatorial election, was questioned about this behavior and then granted clemency when it was revealed that while his vote was illegal, he cast it for Gov. Rick Scott (R) who sits on Florida's Executive Clemency Board.[14] However, other felons who appeared before the board were rejected on the grounds of also having voted illegally, almost all of whom were black.[15] Clearly outlined by the 15th Amendment, racially-based disenfranchisement is unconstitutional. Hunter v. Underwood (1985), which invalidated the article of the Alabama Constitution enumerating the grounds on which a felon can be disenfranchised (Article VIII, § 182) after finding it to have been drafted with discriminatory intent as a motivating factor, also affirms and lends precedent to the principle that the “state cannot disenfranchise a convicted felon if motivated by racial animus.”[16] At the surface level, a possible solution is that no elected officials should serve on clemency boards as there is a conflict of interest that would likely lead to a violation of the 15th Amendment. But to truly uphold the constitution in the restoration process, clemency decisions cannot be made in the presence of racial biases, and since racial biases can often stem from the subconscious, the most constitutional approach would be for clemency to be determined by rule of law, not by a board of officials.

To be voted on in November, Florida has just placed a new referendum on the ballot that aims to replace the current flawed system. Known as the Voting Rights Restoration for Felons Initiative or Florida Amendment 4, this constitutional amendment will “automatically restore the right to vote for people with prior felony convictions, except those convicted of murder or a felony sexual offense, upon completion of their sentences”.[17] If passed with a 60% majority vote, the amendment will be ratified and felons will no longer endure a unconstitutional process in order to restore their right to vote. With the referendum adopted, Florida would serve as a progressive example for the three other states with the strict voter disenfranchisement laws, hopefully sparking discourse and eventually policy change to make their rights restoration processes more reflective of our constitution.

[1] "Florida Commission on Offender Review." Office of Executive Clemency - Clemency - Florida Commission on Offender Review. Accessed February 27, 2018. https://www.fcor.state.fl.us/clemency.shtml.

[2] Levy, Pema. "A judge just delivered a huge win for voting rights in Florida." Mother Jones. February 01, 2018. Accessed February 27, 2018. https://www.motherjones.com/politics/2018/02/judge-strikes-down-felon-disenfranchisement-system-in-florida/.

[3] U.S. Const. Amend. XIV.

[4] United States District Court for the Northern District of Florida. James Michael Hand, et al. v. Rick Scott et al. 1 February 2018.

[5] Ibid.

[6] Ibid.

[7] United States Court of Appeals for the Fifth Circuit. Shepherd v. Trevino. 25 August 1978.

[8] U.S. Const. Amend. XV. Sec. 1.

[9] Levy, Pema. "How Jeb Bush became a player in one of the South's darkest traditions." Mother Jones. June 23, 2017. Accessed February 27, 2018. https://www.motherjones.com/politics/2015/10/jeb-bush-florida-felon-voting-rights-clemency/.

[10] "List of Governors of Florida." Wikipedia. Accessed February 27, 2018. https://en.wikipedia.org/wiki/List_of_Governors_of_Florida.

[11] “Florida Attorney General.” Wikipedia. Accessed February 27, 2018. https://en.wikipedia.org/wiki/Florida_Attorney_General

[12] “Chief Financial Officer of Florida.” Wikipedia. Accessed February 27, 2018.

https://en.wikipedia.org/wiki/Chief_Financial_Officer_of_Florida

[13] “Florida Commissioner of Agriculture.” Wikipedia. Accessed February 27, 2018.

https://en.wikipedia.org/wiki/Florida_Commissioner_of_Agriculture

[14] Dixon, Matt. "Federal judge says Florida system for restoring former felons' voting rights unconstitutional." Politico PRO. February 02, 2018. Accessed February 27, 2018. https://www.politico.com/states/florida/story/2018/02/01/federal-judge-floridas-ex-felon-voting-ban-is-unconstitutional-233251.

[15] United States District Court for the Northern District of Florida. James Michael Hand, et al. v. Rick Scott et al. 1 February 2018.

[16] United States Supreme Court. Hunter v. Underwood. 16 April 1985.

[17] "Florida Amendment 4, Voting Rights Restoration for Felons Initiative (2018)." BALLOTPEDIA. Accessed February 27, 2018. https://ballotpedia.org/Florida_Amendment_4,_Voting_Rights_Restoration_for_Felons_Initiative_(2018)#cite_ref-quotedisclaimer_6-0.

Photo by Erik (HASH) Hersman, https://www.flickr.com/photos/whiteafrican/3004595893.