On Sunday, a Florida federal district court struck down a state law requiring people with serious criminal convictions to pay court fines and fees before they can register to vote. The court found that such a requirement would amount to a poll tax and discriminate against those who cannot afford to pay.
That decision is the latest salvo in two battles: Florida’s recent effort to restore voting rights to felons, and America’s long history of using disenfranchisement as a collateral consequence of criminal punishment.
The latter has a shameful history. This nation’s longstanding hostility toward criminals and convicts bubbles over in an 1871 Virginia court decision that described prisoners as “slaves of the state.” As a consequence of his crime, a prisoner has “not only forfeited his liberty, but all his personal rights except those which the law in its humanity accords to him.”
In 2018 the Florida electorate voted to repudiate that history when 65% of the voters supported a proposal to amend the state constitution so that convicted felons who complete “all terms of sentence” could vote.
Several months later, the heavily Republican state legislature tried to limit the impact of that amendment. It passed a bill saying that “all terms of sentence” included the discharge of financial obligations such as fines, fees and restitution.
Sunday’s court decision enjoined the application of that law.
Like many American states, during most of its history Florida took away permanently the voting rights of persons convicted of serious crimes.
Article VI, Section 13 of its first state constitution said that: “laws shall be made by the General Assembly, to exclude from office, and from suffrage, those who shall have been or may thereafter be convicted of bribery, perjury, forgery, or other high crime, or misdemeanor.” Thirty years later, in 1868, the constitution was amended to deny voting rights to anyone convicted of a “felony.”
In 1968 Florida again changed its constitution to say that: “No person convicted of a felony, or adjudicated in this or any other state to be mentally incompetent, shall be qualified to vote or hold office until restoration of civil rights or removal of disability.”
That rule is not absolute. Disenfranchised persons are allowed to seek restoration of their civil rights, including the right of vote, by application to the state Clemency Board. While many have applied, few have succeeded in getting the franchise restored.
Because of the current racial composition of America’s prisons and jails, felony disenfranchisement has had a much greater impact on the democratic participation of citizens of color than that of white citizens.
Yet, in 2002, a different federal court in Florida dismissed a lawsuit claiming that felony disenfranchisement was racially discriminatory. The court said that “The mere fact that many incarcerated felons happen to be black and Latino is insufficient grounds to implicate the Fifteenth Amendment or the Voting Rights Act.” It concluded that the plaintiffs were not denied the right to vote on account of race, but rather had their voting rights removed on the basis of a “racially neutral cause.”
Florida’s long history of felony disenfranchisement is hardly unique. The practice of removing voting rights from people convicted of crimes can be traced back to the colonial practice of treating criminals as civilly dead. And soon after the American Revolution, felony disenfranchisement was written into the law of many of the newly formed states.
Debates about slavery and the aftermath of the Civil War gave added impetus to this practice. States passed laws in the late 1860s to disenfranchise felons and, in so doing, test the meaning of the Fifteenth Amendment’s extension of voting rights. In the post-war South, white southern Democrats used felony disenfranchisement to deny those rights, invoking historical similarities between the legal statuses of slaves and convicts as justification.
Today, according to a report by the Sentencing Project, nearly 40% of the 6.1 million people disenfranchised by a felony conviction are black.
Despite the troubled association of felony disenfranchisement laws with racial discrimination, courts, like the 2002 Florida court, generally have upheld them in the face of legal challenges.
In 1974, in the most important of those decisions, the United States Supreme Court found that felony disenfranchisement does not violate the Fourteenth Amendment guarantee of equal protection of the law.
Writing for the Court in Richardson v. Ramirez, Justice William Rehnquist said that Section 2 of the Fourteenth Amendment – which was arguably intended to protect the voting rights of freed slaves by sanctioning states that disenfranchised them – exempts disenfranchisement based on a felony conviction. He argued that that amendment “could not have been meant to bar outright a form of disenfranchisement” that was widely practiced at the time of its adoption and was not expressly prohibited by it.
In the last half century, the Court has turned aside numerous challenges to felony disenfranchisement, leaving it to the states to decide whether to continue to impose this additional penalty on criminal offenders.
Currently 48 states and the District of Columbia do not allow felons to vote while they are serving time in prison. Thirty-one states prevent people on parole or probation from casting ballots.
Four states permanently bar ex-inmates from voting and do not allow restoration of that right, while eight others disenfranchise only people who have committed particularly egregious kinds of crimes.
Sunday’s court decision striking down new barriers erected to limit the number of Florida’s previously disenfranchised population from voting is admirable, but much more needs to be done to ensure that those who commit serious crimes can exercise one of the essential rights of citizenship—the right to vote.
In 1958, in Trop v Dulles, the U.S. Supreme Court held that punishing a criminal by stripping them of their citizenship was unconstitutional. “Citizenship,” the Court said “is not a license that expires upon misbehavior.” When America denies people the right to vote it violates that principle.
Moreover, if this nation wants prisoners, when they leave confinement, to return to be productive, well-integrated members of society, it should make sure they have a stake in that society. Voting gives them that stake.
Ending felony disenfranchisement also would help break the legacy of slavery which continues to haunt imprisonment in the U.S.
The entire country should follow the examples of Maine and Vermont, the only two states that allow people to vote from behind bars and after they are released. They have done so for more than two hundred years. Canada, Denmark, Spain, and 13 other democracies also permit felons to exercise the franchise even when they are serving time. They recognize that voting is a right of adult citizens, not a privilege accorded only to some.
Last year legislators in Massachusetts, Hawaii, New Mexico, and Virginia introduced bills to allow all prisoners to vote, a position endorsed by Senator Bernie Sanders during his presidential campaign.
Dissenting in the Richardson case, Justice Thurgood Marshall wisely noted that there is no reason to believe that “felons have any less interest in the democratic process than any other citizen. Like everyone else, their daily lives are deeply affected and changed by the decisions of government.”
And, Justice Marshall was right to remind all of us that the right to vote “is the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.”