In November 1865—barely six months after Appomattox, and three weeks before the official ratification of the Thirteenth Amendment—the New York Tribune’s front page bore a provocative headline: “South Carolina Re-establishing Slavery.”
The story laid out the new system being put into place in most of the former Confederacy—“Black Codes,” criminal laws targeting black citizens, coupling a long list of minor offenses with a schedule of prohibitive fines. If a black defendant could not pay the fine, he or she was to be “contracted out” to work off the “debt” for some white employer. (In some of the codes, a “debtor’s” black children would also be “apprenticed,” with preference given to the families of their former “masters.”)
The new system, a Confederate veteran explained to Chicago Tribune correspondent Sydney Andrews, would “be called ‘involuntary servitude for the punishment of crime,’ but it won’t differ much from slavery.”
This history—the ardent and persistent embrace by Southern racists of the criminal justice system as a means of racial domination—gives me a somewhat jaundiced view of state laws barring convicted felons from voting. They are a heritage of the old slave-power mindset, and have no business marring politics in a 21st century democracy. By and large, as my grandmother used to say, “they make me tired.”
Florida’s felon-disfranchisement scheme plainly has wearied U.S. District Judge Mark Walker; on Thursday he announced that the state’s system violates the Constitution and ordered the parties to a lawsuit to propose a remedy by February 12.
It’s a slight misnomer to say that Hand v. Scott struck down the disfranchisement scheme. Walker did not hold that felons, or ex-felons, have an automatic right to vote. That issue, he reasoned, is settled by a 1974 Supreme Court case, Richardson v. Ramirez, that held that “the exclusion of felons from the vote has an affirmative sanction in § 2 of the Fourteenth Amendment.” (That section, never actually applied, purported to reduce congressional representation for states that denied the vote to adult male citizens “except for participation in rebellion, or other crime.”) The Florida case challenged the system—if that is the word—Florida uses to restore voting rights to some, but not all, former felons.
Understand to begin with that among the 50 American states, Florida is the undisputed disfranchisement champion. According to a 2016 report by the Sentencing Project, 48 of the 50 states strip felons of their right to vote while they are serving their sentences; only 34, however, bar released felons from voting while they are on post-prison probation or parole; and a mere 12 strip them of voting rights even after they are completely finished with the correctional system. Among those 12 is—you guessed it—Florida.
In fact, 27 percent of all the disfranchised felons in the U.S. live in Florida; of those Americans who have completed all their punishments but still cannot vote, a whopping 48 percent live in the shadows of the Sunshine State. In 1980, Florida disfranchised 2.6 percent of its eligible voting-age population; by 2016, that percentage was 10.4 percent. (In the past year, Alabama has moved to reduce the number of crimes that lead to disfranchisement; Florida’s political leaders ain’t budging. A group of citizens says it has collected enough signatures to place a measure on the November ballot that would automatically restore voting rights after a citizen has completed probation or parole.)
Needless to say, like the prison population itself, the number of disfranchised is disproportionately African American; in 2016, more than 21 percent of Florida’s eligible black citizens were disfranchised. (These figures are not a revelation to those who have followed this issue through the reporting of Pema Levy of Mother Jones, or the efforts of the Fair Elections Legal Network, which provided counsel to the plaintiffs in this case.)
In a sane world, those facts alone would trigger court scrutiny, if not an emergency Security Council meeting and a team of United Nations human-rights monitors. But Hand v. Scott merely challenges the state’s rules for restoring a voter’s right to vote after punishment—rules that, in the court’s view, amount to no rules at all.
That’s not to say that the state doesn’t have a set of “rules” governing applications for restoration of civil rights; it does, and they run to more than 20 pages. But at their heart is Rule 4: “[t]he Governor has the unfettered discretion to deny clemency at any time, for any reason.” Applicants for restoration can request ten-minute hearings before the Clemency Board, during which, the court’s opinion notes, a number apparently feel it wise to pledge their allegiance to conservative political values. One ex-felon admitted to the board that he had voted illegally during the waiting period for restoration. When Governor Rick Scott asked him about the vote, he responded, “Actually I voted for you.”
Scott restored him on the spot. But that magnanimity was uncharacteristic: The court’s opinion notes that between 2007 and 2011, Republican Governor Charlie Crist restored voting rights to 154,000 ex-felons; since Scott took over in 2011, the total is “less than 3,000.”
The state argued that because restoration is an “act of grace,” like a pardon, the governor’s power to set restoration rules is unreviewable. Walker noted that this case is not a challenge to the granting or refusal of any specific claim, which probably would be beyond review. But the system itself cannot be beyond review, he reasoned:
Defendants essentially argue that vote-restoration for former felons can only occur on the state’s terms. Once a felon loses the right to vote, only the state may grant it back in a manner of its choosing. A person convicted of a crime may have long ago exited the prison cell and completed probation. Her voting rights, however, remain locked in a dark crypt. Only the state has the key—but the state has swallowed it. Only when the state has digested and passed that key in the unforeseeable future—maybe in five years, maybe in 50—along with the possibility of some virus-laden stew of viewpoint discrimination and partisan, religious, or racial bias, does the state in an “act of mercy,” unlock the former felon’s voting rights from its hiding place. … A state may disenfranchise convicted felons. A particularly punitive state might even disenfranchise convicted felons permanently. But once a state provides for restoration, its process cannot offend the Constitution.
Even though ex-felons do not have a “right” to vote, Walker reasoned, the arbitrariness and potential bias of the restoration process offend “two First Amendment rights; namely, free association and free expression.” Voting itself has not clearly been held to be protected speech; but, Walker drew on Justice Anthony Kennedy’s opinion in Citizens United v. Federal Election Commission, and on another case granting First Amendment protection to voter-registration efforts:
It is inconsistent to find that corporate expenditures spent during a campaign or filling out a voter-registration form are core expressive activities, but that voting—the end result of these other protected activities—is non-expressive. To declare voting a non-expressive activity would relegate this crucial right to a lower form of First Amendment protection than those very activities that are intricately intertwined with voting.
Once voting is characterized as First Amendment activity, it is hornbook law that neither the state or any official can have “unfettered discretion” over who gets to do it. The state argued that it had an interest in “limiting the franchise to responsible voters”; Walker said that the interest may be real, “[b]ut Florida does not use the least-restrictive means to pursue” that end, as First Amendment analysis requires. The state’s methods, Walker said, were not only “crushingly restrictive” but also very likely “viewpoint based,” since officials can and apparently do favor felons with whom they agree over those whom they don’t. “All the component parts of the vote-restoration process that Defendants wave like shiny objects to distract from potential viewpoint discrimination . . . mean nothing if the Governor alone has final authority to restore Plaintiffs’ rights.”
Walker has given the state less than two weeks to propose a system that will operate fairly. The hurry is because, if the current system is struck down without a replacement, the governor will have no power to restore voting rights act until one is found. The judge’s decision is certain to face appeal, and uncertain prospects before the Eleventh Circuit. Certainly, however, it is heartening that such a wretched remnant of the Slave Power has failed at least the first stage of judicial scrutiny.