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DEMOCRACY UNCAGED

March 22, 2019

DEMOCRACY UNCAGED: FLORIDA VOTERS STRIKE DOWN CONSTITUTIONAL REMNANT OF THE JIM CROW ERA AND SET STAGE FOR 2020 ELECTION

By: Conor Hume, Volume 103 Staff Member

What does it mean to be an American citizen when the law prevents you from participating in democracy? The answer to this question lies in the struggle that minority groups have faced in voting since the founding of the United States. Out of those minority groups, African Americans in particular still face significant hurdles in having their voices heard in the electoral process. Past attempts to enfranchise African Americans, namely the Reconstruction Amendments and the Voting Rights Act (“VRA”), have resulted in an electoral landscape wherein lawmakers use crafty legal tactics, like voter ID laws, designed to create barriers to minorities casting their votes.[1] Nevertheless, a substantial portion of the African American population of Florida will enjoy the right to vote again during the 2020 election cycle due to the widespread rejection of a Jim Crow practice that Florida previously enshrined in its constitution.[2]

I. Felon Disenfranchisement in the United States

Although racial discrimination has been a popular electoral issue since the Supreme Court gutted the VRA in Shelby County v. Holder,[3] another less-discussed yet entirely constitutional discriminatory legal practice,[4] felon disenfranchisement, has persisted in the United States since the Reconstruction Era.[5] The practice of stripping criminals of their voting rights dates back to at least ancient Greece and Rome;[6] however, its use in America became the hottest new trend in the South right around the same time that newly-freed blacks began to appear as a political threat to the white political establishment.[7]

If one were to look at the actual text of these disenfranchisement laws, it would not be immediately apparent that they were racially discriminatory.[8] Unfortunately, racial discrimination runs much deeper than words. Instead, these racially-neutral laws were enacted in combination with discriminatory policing practices to suppress the threat of a black political majority in the South.[9] Initially, the laws targeted blacks by only stripping voting rights for specific crimes that were more common amongst the black community. Meanwhile, murder (a much more common white crime) did not result in the loss of voting rights.[10] Thus, the statutes are not discriminatory on their face and do not present easy targets for Equal Protection claims under the Fourteenth Amendment. In fact, the Supreme Court has already determined that state governments have the constitutional right to disenfranchise felons as they see fit.[11]

In Richardson v. Ramirez, the Supreme Court held that a California statute stripping an individual of their voting rights after a felony conviction was constitutional under the Fourteenth Amendment.[12] Section 2 of the Fourteenth Amendment deals with the apportionment of congressional representatives to the States based on their population but allows States to count individuals who “participat[ed] in rebellion, or other crime . . . .”[13] Although some argue that the purpose of this phrase was to compromise with Southern sympathizers after the Civil War and allow Southern governments to count ex-Confederates for congressional seat allotment,[14] the Court interpreted this to mean that a State could constitutionally strip a felon’s voting rights without losing congressional seats.[15] This holding paved the way for 6.1 million people’s ineligibility to vote in the 2016 election, which was roughly five times as many as at the time the Supreme Court decided Richardson.[16]

II. Florida’s Constitutional Amendment

Few states are as important and controversial during presidential elections as Florida. There is a good reason for this attention, as nine out of the last ten presidential election winners have won Florida.[17] Most notoriously, the 2000 presidential election between George W. Bush and Al Gore, which came down to a now-infamous Supreme Court decision, and was ultimately decided by just 537 votes out of six million cast in total.[18] In 2018, Republican Ron DeSantis defeated Democratic candidate Andrew Gillum by just 0.4% of the total vote.[19] Republican Rick Scott won by just 0.2%.[20] Florida elections have been unbelievably close, and the 2018 midterm showed that the state is in for what could be a massive shake-up in their eligible voter demographics for 2020.

Arguably the most exciting victory of the night was for Amendment 4, which was a referendum to amend the Florida constitution and allow convicted felons to regain their voting rights upon completion of their sentence, including probation and parole.[21] Florida had previously disenfranchised felons permanently, one of the final four states to do so.[22] Since the United States has uniquely stringent felony disenfranchisement laws, this meant that Florida had possibly the most stringent disenfranchisement laws in any democracy in the world.[23] Rather than following the national trend of loosening disenfranchisement laws, Florida was strengthening their statutes before the 2018 referendum.[24]

The fascinating aspect of Amendment 4’s passage was that it received more votes than any individual candidate, suggesting that it passed with bi-partisan support.[25]This result is interesting because restoring felon voting rights is typically seen as a more liberal viewpoint and overall more beneficial to Democrats in elections, particularly when that restoration includes twenty percent of the African American population in Florida.[26] Although whites represent a significant majority of the felon population in Florida, African Americans have overwhelmingly supported Democrats in elections in the modern era,[27] so the influx of African American voters could have significant implications for the 2020 presidential election. Imagine a scenario where the election comes down to Florida and this formerly marginalized population’s votes shift the balance in one party’s favor. Could there be a more fulfilling way to participate in American democracy?

  1. See U.S. Comm’n on Civil Rights, An Assessment of Minority Voting Rights Access in the United States 89–199 (2018), https://www.usccr.gov/pubs/2018/Minority_Voting_Access_2018.pdf (discussing some of the ways in which state governments diminish minority voter turnout in elections through stringent voting requirements). ↑
  2. See Sam Levine, Florida Officially Changes Jim Crow-Rooted Felon Disenfranchisement Policy, Huff. Post (Jan. 8, 2019), https://www.huffingtonpost.com/entry/florida-felon-disenfranchisement-reform_us_5c33d3c6e4b01e2d51f5fb5f; Christopher Uggen et al., 6 Million Lost Voters: State-Level Estimates of Felony Disenfranchisement, 2016, Sent’g Project (Oct. 6, 2016), https://www.sentencingproject.org/publications/6-million-lost-voters-state-level-estimates-felony-disenfranchisement-2016/ (finding that one in five African Americans in Florida could not vote in 2016 due to a felony conviction). ↑
  3. See Shelby Cty. v. Holder, 570 U.S. 529, 557 (2013); see also U.S. Comm’n on Civil Rights, supra note 1, at 8 (explaining the effect that removing the preclearance mechanism of enforcing the VRA has had on discriminatory voting laws). ↑
  4. See Richardson v. Ramirez, 418 U.S. 24, 54–56 (1974) (holding that Section 2 of the Fourteenth Amendment allows States to disenfranchise convicted felons). ↑
  5. See Jeff Manza & Christopher Uggen, Locked Out: Felon Disenfranchisement and American Democracy 56–57 (2006). ↑
  6. Alec C. Ewald, Civil Death: The Ideological Paradox of Criminal Disenfranchisement Law in the United States, 2002 Wis. L. Rev. 1045, 1059–60 (2002). ↑
  7. See Richard K. Scher, The Politics of Disenfranchisement: Why Is It So Hard to Vote in America? 32–40 (2011) (discussing Jim Crow laws in the post-Reconstruction American South). ↑
  8. See, e.g., Ill. Const. art. III, § 2 (“A person convicted of a felony, or otherwise under sentence in a correctional institution or jail, shall lose the right to vote . . . .”). ↑
  9. Virginia E. Hench, The Death of Voting Rights: The Legal Disenfranchisement of Minority Voters, 48 Case Western Res. L. Rev. 727, 742 (1998) (explaining that although tactics like literacy tests and grandfather clauses were massively successful at suppressing the black vote, Southern states also enacted felon disenfranchisement laws as an insurance measure in case the courts struck down the other laws as unconstitutional). ↑
  10. See Manza & Uggen, supra note 5, at 42, 50. ↑
  11. Richardson v. Ramirez, 418 U.S. 24, 54–56 (1974). ↑
  12. Id. ↑
  13. U.S. Const. amend. XIV, § 2. ↑
  14. See, e.g., Richard W. Bourne, Richardson v. Ramirez: A Motion to Reconsider, 42 Val. U. L. Rev. 1–2, 7, 16–17 (2007). ↑
  15. Richardson, 418 U.S. at 24, 54–56. ↑
  16. See Uggen, supra note 2. ↑
  17. See Florida, 270 to Win, https://www.270towin.com/states/Florida (last visited Mar. 4, 2019). ↑
  18. See Bush v. Gore, 531 U.S. 98 (2000); Ron Elving, The Florida Recount of 2000: A Nightmare that Goes on Haunting, NPR (Nov. 12, 2018), https://www.npr.org/2018/11/12/666812854/the-florida-recount-of-2000-a-nightmare-that-goes-on-haunting. ↑
  19. Florida Election Results, Wash. Post, https://www.washingtonpost.com/election-results/florida/?utm_term=.29b4987dc85e (last updated Feb. 20, 2019). ↑
  20. Id. ↑
  21. See Levine, supra note 2. ↑
  22. Voting Rights Restoration Efforts in Florida, Brennan Ctr. for Just. (Nov. 7, 2018), https://www.brennancenter.org/analysis/voting-rights-restoration-efforts-florida. ↑
  23. See Allison J. Riggs, Felony Disenfranchisement in Florida: Past, Present and Future, 28 J.C.R. & Econ. Dev. 107, 107–08 (2015). The United States is the only western democracy to strip its citizens of voting rights upon conviction of a felony. See S. 1588, 115th Cong. § 2(14) (2016). ↑
  24. See Voting Rights Restoration Efforts in Florida, supra note 22. ↑
  25. See Patricia Mazzei, Florida Felons Once Denied Rights Begin Registering to Vote, N.Y. Times (Jan. 8, 2019), https://www.nytimes.com/2019/01/08/us/florida-felons-voting-rights.html?module=inline&eType=EmailBlastContent&eId=61912360-4578-4f38-b0d3-738b49111861. ↑
  26. Id. ↑
  27. See Election Results 2008, N.Y. Times (Nov. 5, 2008), https://www.nytimes.com/elections/2008/results/president/national-exit-polls.html. ↑
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