Can Florida claim to be a democracy when one out of every 10 of adult citizens in the state are denied the right to vote because some time in their lives they were convicted of a felony? And 75 percent of those people are out of prison and otherwise living as free members of the community?
Florida is one of a handful of states that impose a lifetime voting ban on convicted felons. Their right to vote can only be restored on a case-by-case basis with the approval of the governor and two members of the Board of Executive Clemency — the cabinet — on a petition filed five years after release from prison. Since Scott’s election in 2010, only 2,487 petitions have been granted. Only a few other states come even close to disenfranchising so many ex-felons.
If there is any doubt of the reasons behind these numbers, which have been compiled by the nonpartisan Sentencing Project, be aware that the overwhelming number of the disfranchised are African American. Indeed, more than one in five black Floridians is affected. And if anyone thinks this is unrelated to demography, know that there are two states that allow convicted felons to vote even while they are in prison — the very white Maine and Vermont. Most other states restore voting rights immediately after release from prison or after parole and/or probation is completed.
The denial of voting rights to racial minorities would seem to violate the 15th Amendment, which prohibits disfranchising former slaves, and the 14th Amendment’s guarantee of equal protection of the law to all people.
Indeed, the authors of the 14h Amendment sought to put some teeth in it by providing in Section 2 that the former slave states would have their congressional representation reduced if they denied voting rights to otherwise eligible inhabitants for any reason other than “participation in rebellion or other crime.”
But the fact is that the loss-of-representation provision was never enforced despite a century of almost total exclusion of blacks from the ballot box by the former Confederate states.
Prior to the passage of the Voting Rights Act more than a hundred years after the Civil War, Southern whites were able to dominate the U.S. House of Representatives in the absence of any retaliation for black disfranchisement under Section 2.
Then in 1972, the U.S. Supreme Court found a use for Section 2. In an opinion written by William Rehnquist, the majority held that Section 2 allowed the states to deny voting rights to any person convicted of a “crime.”
The Rehnquist opinion had thus turned Section 2 on its head. A provision intended to protect the voting rights of freed slaves was transformed into an authorization for the former slave states to continue to disenfranchise them and their descendants by arresting and convicting them, which they did in a hurry. Undisputed evidence shows that African Americans are arrested and convicted of crimes greatly disproportionate to whites who commit the same offenses.
The clear impact is felt not only by the individuals who are denied the right to be first-class citizens eligible to take part in the political process, but on the entire African-American community, which has its voting power greatly diminished.
Floridians may have an opportunity to change all that. There is currently circulating a petition to place on the ballot a referendum to re-enfranchise ex-felons other than murderers or sex-offenders.
The petition is under review by the Florida Supreme Court to determine if the language complies with rules governing referenda.
Frank Askin is distinguished professor emeritus of Rutgers School of Law in Newark, N.J., and general counsel emeritus of the American Civil Liberties Union.