How law­mak­ers can stream­line vot­ing rights for felons law

South Florida Sun-Sentinel (Sunday) - - Opinion - By Mark R. Sch­lak­man

Last Novem­ber, Florida vot­ers ap­proved Amend­ment 4, which “au­to­mat­i­cally” re­stores the right to vote to most felons who’ve com­pleted their sen­tences. It went into ef­fect Jan­uary 8.

De­spite be­ing re­garded as “self-ex­e­cut­ing,” Gov. Ron DeSan­tis re­port­edly wants to af­ford the Leg­is­la­ture op­por­tu­nity to con­sider whether to pass clar­i­fy­ing leg­is­la­tion. A num­ber of ad­vo­cates, grass­roots voices and lo­cal of­fi­cials have con­veyed con­cern that some leg­is­la­tors might at­tempt to sub­vert the will of Florida vot­ers.

Oth­ers sug­gest the Leg­is­la­ture should mon­i­tor for a year and then re­spond as nec­es­sary.

But the 2020 elec­tion cy­cle would be un­fold­ing at that point. Leg­isla­tive in­ac­tion to ad­dress known con­cerns dur­ing this 2019 reg­u­lar ses­sion could ad­versely af­fect voter el­i­gi­bil­ity later.

Some leg­is­la­tors seem­ingly in­ter­pret Florida Supreme Court case prece­dent re­lat­ing back to the Askew ad­min­is­tra­tion, es­sen­tially af­firm­ing civil rights restora­tion was an ex­ec­u­tive branch pre­rog­a­tive, to strictly limit their dis­cre­tion be­yond the ex­press lan­guage of Amend­ment 4. Sim­ply put, this isn’t nec­es­sar­ily so. Ques­tions abound re­gard­ing what con­sti­tutes “com­ple­tion of all terms of sen­tence,” which Amend­ment 4 ref­er­ences broadly, the spe­cific of­fenses that would be ex­cluded, and whether fines, fees, court costs and resti­tu­tion must first be paid.

The House Crim­i­nal Jus­tice Sub­com­mit­tee con­sid­ered its ini­tial bill on Tues­day and took what the chair char­ac­ter­ized as a “strict con­struc­tion­ist’ ap­proach re­sult­ing in ex­clu­sions for first and sec­ond-de­gree mur­der and an ex­pan­sive list of ex­clud­able “sex­ual” of­fenses, among other re­quire­ments.

The Se­nate Crim­i­nal Jus­tice Com­mit­tee will likely con­sider its own ver­sion on Mon­day.

And there’s an­other kind of un­cer­tainty. Florida has 67 elected su­per­vi­sors of elec­tions, one from each county, with con­sid­er­able dis­cre­tion in­so­far as reg­is­ter­ing former of­fend­ers to vote. A sim­i­lar num­ber of elected clerks of court and comp­trol­lers may fol­low var­ied pro­ce­dures in­volv­ing dis­po­si­tion of sen­tence.

And while the clerks main­tain in­for­ma­tion about fines, fees and court costs, the Depart­ment of Cor­rec­tions typ­i­cally main­tains in­for­ma­tion re­gard­ing resti­tu­tion. Uni­form poli­cies and pro­ce­dures are elu­sive.

There are 20 elected state at­tor­neys, one from each ju­di­cial cir­cuit with pros­e­cu­to­rial dis­cre­tion in­volv­ing al­leged voter fraud if former of­fender el­i­gi­bil­ity is un­clear. Re­gard­less of how many former of­fend­ers ac­tu­ally reg­is­ter to vote, equal pro­tec­tion law­suits on be­half of former of­fend­ers ad­versely af­fected by such dis­par­i­ties and un­cer­tainty loom over the hori­zon. And the courts are poised to re­view whether leg­is­la­tion com­ports with the spirit and in­tent of Amend­ment 4 in any event.

For that mat­ter, some fa­vor first re­quir­ing pay­ment of fines, fees, court costs and resti­tu­tion. Oth­ers ob­serve that would be tan­ta­mount to a poll tax.

Also, while pas­sion­ate grass­roots ad­vo­cacy fu­eled this move­ment, dis­pas­sion­ate anal­y­sis of the im­ple­men­ta­tion process by those most fa­mil­iar with how var­i­ous agen­cies in­volved co­or­di­nate — or don’t — is seem­ingly needed most at this point. Nev­er­the­less, the im­por­tance of con­tin­u­ing grass­roots vig­i­lance can­not be un­der­stated.

Here are some el­e­ments of a pos­si­ble way for­ward. The Leg­is­la­ture ar­guably has dis­cre­tion to es­tab­lish for pur­poses of im­ple­men­ta­tion that pay­ment of fines, fees, court costs and resti­tu­tion isn’t a pre­req­ui­site. Sig­nif­i­cantly, this wouldn’t elim­i­nate any un­der­ly­ing obli­ga­tion to pay apart from restora­tion of the vot­ing fran­chise.

The Leg­is­la­ture also ar­guably has dis­cre­tion to clar­ify that com­ple­men­tary civil rights — post-sen­tence el­i­gi­bil­ity to serve on a jury (which is statu­tory), and hold pub­lic of­fice, not an un­rea­son­able ex­ten­sion of vot­ing — should be re­stored along with vot­ing el­i­gi­bil­ity. Restora­tion of firearm au­thor­ity has been han­dled sep­a­rately.

There’s a process that’s al­ready in place out­side of ex­ec­u­tive clemency to ad­dress bias in jury se­lec­tion called voir dire. As far as hold­ing pub­lic of­fice, rather than opt­ing for more gov­ern­ment, why not al­low Florida vot­ers to de­cide?

Iron­i­cally, the Clemency Board’s own re­search in­di­cates post-sen­tence civil rights restora­tion re­duces re­cidi­vism and pro­motes suc­cess­ful reen­try. In the ab­sence of leg­isla­tive ac­tion to re­align these com­ple­men­tary rights, the gov­er­nor and Cab­i­net could re­vise the clemency rules to do so af­ter the Leg­is­la­ture ad­journs. Gov. Ron DeSan­tis, At­tor­ney Gen­eral Ash­ley Moody, Chief Fi­nan­cial Of­fi­cer Jimmy Pa­tro­nis and Agri­cul­ture Com­mis­sioner Nikki Fried com­prise the board.

How­ever, the Leg­is­la­ture is well-po­si­tioned to pass rea­son­able clar­i­fy­ing leg­is­la­tion to stream­line im­ple­men­ta­tion of Amend­ment 4 statewide.

Even If not ev­i­dent in the first it­er­a­tions of these bills, more lies ahead. Once again, all eyes are on Florida.

Mark R. Sch­lak­man is se­nior pro­gram direc­tor at Florida State Uni­ver­sity’s Cen­ter for the Ad­vance­ment of Hu­man Rights

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