Why Florida's new voting rights amendment may not be as sweeping as it looks

Florida used to have the nation’s strictest disenfranchisement law for people convicted of crimes classified as felonies.

In most states, voting rights are automatically restored after a person is released from prison, or after they finish parole or probation. In comparison, under Florida’s old system, a citizen with a felony conviction would never be allowed to vote again, unless they were granted clemency by a four-member board with a long waitlist.

Florida voters indicated their readiness to change all that in November 2018, when they voted by a 2-1 margin to amend their state’s constitution. Known as Amendment 4, this measure backed by conservative and progressive groups alike automatically restored the voting rights of Floridians with felony convictions “after they complete all terms of their sentence including parole or probation.”

The media widely reported that Amendment 4 restored voting rights to 1.4 million citizens, often likening its impact to the Voting Rights Act.

I’m a political scientist who researches the effects of restricting and restoring the voting rights of people convicted of crimes. There is legislation currently pending in the Florida statehouse. If it becomes law, that measure would greatly reduce the number of people who would have their voting rights restored by Amendment 4.

Exceptions and exclusions

Not all people with felony convictions will gain voting rights as a result of last year’s constitutional change.

One reason for that is straightforward. Florida’s citizens who have been convicted of committing murder or felony sex crimes were specifically left out of Amendment 4.

Debate about what it means to complete what the amendment calls “all terms” of one’s sentence also could severely limit the number of people who can regain the vote. One question raised in that debate is whether all criminal debt associated with the conviction must be paid off before voting rights are restored.

The Florida House passed a bill in a party-line vote to clarify the ramifications. The legislation, which Republican lawmakers drafted and supported and their Democratic colleagues opposed, specifies that Amendment 4 only restores voting rights after all criminal debt has been repaid. It could block the voting rights of more than 1 million people.

People who got back the right to vote through passage of Amendment 4 have already begun to register to vote. If this legislation becomes law, the state government would need to cancel some of those registrations.

But first, Florida would need to set up a system to track and evaluate the status of criminal debt payments.

Unpaid criminal debts

Why do so many people have unpaid criminal debt in Florida?

Florida’s constitution requires the state’s courts to finance themselves. Generating their own budget compels the courts to levy “user fees” to defendants as they progress through the system.

The state issued a total of more than US$1 billion in felony fines between 2013 and 2018.

Strangely, the authorities do not expect most of these fees to ever be paid. Florida’s leaders acknowledge this. The state anticipates the receipt of only 9% of that money, versus 90% receipt rates for traffic fines.

Through these fines, Florida courts are trying to generate revenue from a poor population that is largely unable to pay. While the Florida Supreme Court affirmed that the state must evaluate a person’s ability to pay before collection begins, and also before punishing for non-payment, this rarely happens.

If the House bill passes into law, the inability to pay back criminal debt could become the only thing standing between many people and their right to vote.

Prominent politicians like Rep. Alexandria Ocasio-Cortez and Sen. Cory Booker – have denounced the House bill, likening it to a poll tax, fees southern states levied on African Americans to strip them of their right to vote. So have many Florida leaders, including Miramar Mayor Wayne Messam and House Democratic Leader Kionne McGhee.

Is this legal?

Should similar legislation clear the Florida Senate, the two bills would need to be reconciled before being sent to the governor for his signature.

After that, a U.S. Supreme Court challenge would be likely. The National Association for the Advancement of Colored People argues that the House bill violates the Constitution’s 14th Amendment’s Equal Protection Clause and Due Process Clause, as well as the 24th Amendment’s prohibition of denying or abridging the right to vote through a “poll tax or other tax.”

The Supreme Court previously upheld a similar Arizona law that required citizens to pay back all court charges before having their voting rights restored. But the unique characteristics of Florida’s criminal debt structure could potentially make Florida a new test case.

The electorate’s intent

Did voters expect that the amendment would require people with felony convictions to pay back their criminal debt as a condition for getting back the right to vote?

None of the words in the ballot initiative itself mentioned criminal debt.

Including all criminal debt extends far beyond “what any reasonable person would conclude the voters intended when they passed Amendment 4,” said Kara Gross, the American Civil Liberties Union of Florida legislative director.

Interpretations varied, however. A lawyer presenting the amendment to the Supreme Court, Florida’s official financial impact assessment of the amendment, the ACLU and online voter guides all had their own take on whether the amendment would include criminal debt.

Whatever voters thought they were asked to consider when Amendment 4 was on the ballot, it’s clear to me what the effect might be of restoring the vote to citizens who have been through the criminal justice system.

In my research, I find that being encouraged to vote causes people to become more informed and more trusting.

I also researched what happened when more than 150,000 Virginians convicted of felonies had their voting rights restored through actions by their governor rather than a statewide referendum. I found that restoring voting rights in Virginia caused newly enfranchised citizens to feel more included in society and to develop stronger trust in government and stronger confidence in themselves.

Other scholars have found that these types of attitudes ease the transition back to life outside prison after serving out sentences, reducing the likelihood that formerly incarcerated people commit more crimes.

Based on this research, it appears likely that restoring voting rights to more people in Florida would benefit the state in many ways – among them, having fewer people living behind bars. And any law that restricts this enfranchisement would have the opposite effect.