How lawmakers can streamline voting rights for felons law
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