By Chuck Strouse
By Scott Fishman
By Terrence McCoy
By Ryan Yousefi
By Ciara LaVelle, Kat Bein, Carolina Del Busto, and Liz Tracy
By Pepe Billete
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By Kyle Swenson
In September 2000 the Brennan Center for Justice in Manhattan sued Jeb Bush and other state officials in federal court on behalf of eight Florida felons, claiming that the state's clemency provisions violate the U.S. Constitution and federal law. Specifically the suit charged that the disenfranchisement law violates the equal-protection clause of the Fourteenth Amendment by discriminating against African Americans. Further it violated the Voting Rights Act of 1982, which prohibits states from denying or abridging the right to vote based on race or color. In February 2001 the judge granted class-action status to all the state's felons.
"We're saying, get rid of the [state constitution's] disenfranchisement provision," declares James K. Green, a West Palm Beach attorney for the plaintiffs. "At the very least, it has a disparate impact on African Americans. Nearly twice the percentage of voting-age African Americans are disenfranchised as the white voting-age population."
The nation's zest for incarceration has mounted since the 1970s, driven in large part by the war on drugs, according to a 1999 report by the Sentencing Project, a nonprofit that studies the effects of incarceration. Forty-nine percent of inmates in prison are African American, compared with their thirteen-percent share of the population, the report notes. African Americans -- who are disproportionately affected by poor education and limited employment opportunities, poverty, and blighted neighborhoods -- live in communities most heavily policed, which in turn leads to more arrests. Blacks are also less likely to receive a sentence of "adjudication withheld," meaning that a defendant can, say, complete drug counseling or community service in lieu of a felony conviction, according to Theodore Chiricos, a professor of sociology at the School of Criminology at Florida State University and an expert witness for the plaintiffs in the Brennan Center's suit.
The lawsuit asserts that felon disenfranchisement came into full use in Florida soon after the Civil War, in 1868, as a way to keep newly freed slaves from voting. Congress required the state to allow black men to vote as a condition for readmission into the Union. During Florida's 1868 constitutional convention, two opposing political factions -- the Moderate and Radical Republicans -- vied for control by proposing their own versions of a constitution. The Moderates represented the interests of ex-Confederates, whose economic and political concerns included keeping freed slaves out of voting booths and elected office. The Radicals supported the political rights of freed slaves and had drafted a constitution that did not contain provisions for felon disenfranchisement.
The Moderates, however, eventually prevailed with their version of the constitution, which disqualified anyone convicted of a felony or of bribery, larceny, or an "infamous crime." Lawmakers soon adopted legislation defining what crimes would be felonies and misdemeanors. As a result, larceny involving more than $20 was a felony; a second conviction for larceny was a felony regardless of the amount. Vagrancy became a crime against chastity, morality, and decency.
Revisions to the state constitution in 1968 eliminated the mention of specific crimes but, the lawsuit contends, there is no record that members of the Constitutional Revision Commission ever discussed the racial impact of the provision. Article VI, Section 4, now reads: "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." Thus the state's practice of automatically disqualifying felons remained unbroken.
In July 2002 federal Judge James Lawrence King dismissed the Brennan Center's suit against Bush. King wrote that the 1968 legislature "significantly deliberated and substantively revised" the 1868 law without "racial animus," which in effect removed the original racist intent. As for the Voting Rights Act, King cited case law indicating that "evidence of disproportionate impact [on minorities] is irrelevant to the voting rights challenge." More to the point, the plaintiffs had "disenfranchised themselves by committing a felony," he concluded. The plaintiffs appealed to the Eleventh Circuit Court of Appeals in Atlanta. In late November a group of former law enforcement officers and senior Justice Department officials filed an amicus brief on behalf of the plaintiffs. The supporters, who include Eric Holder, a former deputy attorney general and U.S. Attorney for the District of Columbia, contend that there is no law enforcement reason to continue disenfranchisement. Oral arguments are expected in spring 2003.
The voting rights of felons hadn't been of much concern to most Floridians until the presidential election of November 2000 highlighted the system's problems. George W. Bush beat Al Gore by a few hundred votes, and it didn't take long for reporters, Democrats, and civil rights groups to scrutinize who got to vote and who didn't. Among the problems was a botched effort by the state to remove felons from the voter rolls. As described in New Times Broward-Palm Beach("Felon Follies," October 31, 2002), a private company had sent the state lists of some 94,000 putatively felonious voters to be removed from the rolls in 1999 and 2000 -- lists that even the most cursory examination revealed to be full of nonfelons. These names were then sent to local elections offices. Some elections supervisors used the lists as a guide to remove voters from their rolls; others did not. The exact number of people wrongfully disenfranchised is still unknown.