Margaret Butler sets up voting booths ahead of Election Day at the First United Methodist Church on August 27, 2018. Octavio Jones/Tampa Bay Times/ZUMA
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In November, more than 64 percent of Florida voters chose to amend the state constitution to restore voting rights to ex-felons who had completed their sentences. Legally, there should be no question about whether the state’s 1.4 million disenfranchised voters can vote, because that right is now inscribed in the state’s constitution. But the Republicans who control the state Legislature could drag out the process, mire it in court fights, and add so much red tape that only a small number of ex-felons can successfully register. They’ve done it before.
“If past is prelude, then we can assume that the Legislature will try to get involved to try to obstruct the will of Floridians,” says Ben Pollara, a Democratic consultant who is currently fighting the Legislature to implement a medical marijuana amendment approved by voters two years ago. “They have a rich, voluminous history of doing so over the years on a variety of constitutional amendments.”
Returning the franchise to formerly convicted felons could upend the political landscape in Florida, a state divided evenly between Democrats and Republicans. The majority of those who were disenfranchised are expected to support Democrats, since felon disenfranchisement, a policy embraced and expanded after the Civil War specifically to deny voting rights to black men, has always had a disproportionate effect on African Americans and Latinos in Florida. This gives the Legislature, the incoming Republican governor, and his cabinet an incentive to thwart the will of the people.
The ballot initiative, known as Amendment 4, restored voting rights to felons who completed the terms of their sentence, including probation and parole, except those convicted of murder or a felony sexual offense.
“I cannot believe that the powers that be in the state of Florida will make it easy for previously convicted felons to vote in the state,” says Mac Stipanovich, a veteran lobbyist and political consultant in Tallahassee, who foresees obstruction when the Legislature gavels in its annual 60-day session in March. “My expectation is that they will raise every hurdle they can, and that they will certainly try to drag it out past the 2020 election.”
A few examples illustrate the Legislature’s historic willingness to violate or ignore constitutional amendments approved by the voters. In 1996, nearly 70 percent of Florida voters approved what was called the “Polluters Pay” constitutional amendment, which required the businesses polluting the Everglades to pay for the cleanup. The state Supreme Court said the Legislature would have to pass a bill to implement the amendment because it was not self-executing. For seven years, under the thumb of the sugar industry, the Legislature did nothing. When it finally took action, in 2003, it was to effectively neuter the amendment. To this day, taxpayers foot most of the bill for restoring the Everglades.
The Republicans who control the state Legislature could drag out the process, mire it in court fights, and add so much red tape that only a small number of ex-felons can successfully register.In 2014, voters again took environmental cleanup into their own hands and passed a land and water conservation amendment. For years, the Legislature had been starving the state’s conservation funds, so the amendment set aside money for 20 years to purchase and improve state lands and waterways. But the Legislature found a way to muck it up. It took hundreds of millions from the amendment’s trust fund for conservation projects, and instead used the money to pay for salaries, vehicles, and other operating expenses for the state’s underfunded agencies. Environmental groups sued and won, but the Legislature appealed, and the case is ongoing.
The Legislature is also tied up in litigation over a 2016 amendment, approved by 71 percent of voters, to legalize medical marijuana. The Legislature disrupted the implementation of the amendment by making it difficult for many businesses to get licenses to sell marijuana, limiting when and how doctors can prescribe marijuana, and making it illegal for patients to smoke marijuana. (They have to consume it topically, with a vaporizer, or in edible form.) A lawsuit over the smoking ban is ongoing.
Thus far, the incoming GOP leaders in the state House and Senate have promised not to defy the will of the voters when it comes to ending felon disenfranchisement. “We have to do it right, we’re not going to slow walk it, but we have to make sure it’s done right and implemented correctly,” incoming Senate President Bill Galvano said recently, though he acknowledged he had not supported the amendment. Jose Oliva, incoming House speaker, has refused to say whether he voted for it. “I want to make sure that the intent and the will of the people is carried out,” he told the Tampa Bay Times. He added, “I don’t—in any way—plan to either slow play that or restrain it in any way.”
Promises not to violate the intent of the voters are cold comfort, since the Legislature has made them before, only to betray them in spectacular fashion. The best example may be redistricting. In 2010, voters overwhelmingly approved two amendments to eliminate gerrymandering in state legislative and congressional maps. The Legislature, which draws the maps, promised to comply with voters’ wishes. In summer 2011, lawmakers held 26 public hearings across the state, touting the map-drawing process as “the most transparent“ in state history.
But when the new maps were drawn, they clearly favored Republicans. Subsequent litigation over the maps revealed a shadow process that was historically opaque. Republican lawmakers consulted in secret with GOP operatives and deleted records to cover their tracks. Meanwhile, the Republican operatives stocked the public hearings with activists and used fake names to submit map suggestions, supposedly from ordinary citizens, that made their way into the final maps approved by the Legislature. After years of litigation, the state Supreme Court ordered a new congressional map in December 2015. That same month, a state judge selected a new state Senate map after senators admitted to violating the voter-approved amendment in crafting their own map.
“They set out to develop a scheme to avoid the amendments, to make it look like they were following them, when in fact they were having Republican operatives draw the maps,” says Ellen Friedin, who led the Fair Districts Florida campaign to support the amendment. “It was a scheme to deceive the people of Florida and to avoid following the constitution.”
Supporters of the voting rights amendment argue it is different from the others because it does not need the Legislature to implement it. The medical marijuana amendment required legislative action to set up and regulate a previously illegal product; the conservation amendment needed the Legislature to allocate money from its trust fund; and redistricting is the job of the Legislature. But rights restoration can take place without any new laws. Jon Mills, a former state House speaker and attorney who helped craft Amendment 4—as well as the redistricting, conservation, and medical marijuana amendments—argues that rights restoration is unique from the others because it is self-enforcing. “It says any disqualification from voting shall terminate and voting rights shall be restored,” he says, paraphrasing the amendment. “So the intention was to be as explicit and unambiguous as possible.”
When the state Supreme Court approved the amendment language so it could appear on the ballot, it agreed that the amendment was automatic and not dependent on the Legislature. The amendment was clear that its “chief purpose” is to “automatically restore voting rights to felony offenders, except those convicted of murder or felony sexual offenses, upon completion of all terms of their sentence,” the justices unanimously declared.
“If past is prelude, then we can assume that the Legislature will try to get involved to try to obstruct the will of Floridians.”But the governor-elect, Ron DeSantis, thinks the Legislature should get involved. DeSantis, a Republican with close ties to President Donald Trump, indicated in an interview Wednesday that the amendment should not go into effect until the Legislature passes implementing legislation and he signs it. Stipanovich, who for decades was involved in state Republican politics but left the party last month over his opposition to Trump, could imagine the Legislature putting rows of red tape in front of former felons by, say, forcing them to collect documents from various Florida agencies, courts, and clerks to prove their sentence has been completed. That would impose “on the voter the burden of proving he’s done his time, and then make that burden as heavy as possible to carry,” he says.
Such an onerous requirement may be unconstitutional, in the same way that poll taxes and literacy tests have been struck down as illegal impediments to the right to vote. But it could take the courts years to determine what burdens are too heavy, and whether it’s the state or the voter who must prove rights have been restored.
In a positive sign for implementation, state Sen. Dennis Baxley, the Republican who would oversee legislation on Amendment 4 as chairman of the Committee on Ethics and Elections, says he agrees with rights restoration proponents that it’s the state’s responsibility to validate eligibility. Implementing legislation, if necessary, would be aimed at making that process of vetting new registrants streamlined and uniform. “There’s no lurking ambition to water it down or rewrite it or something,” he told Mother Jones. “It’s strictly on the how-to side.”
Even though Amendment 4 was clear about restoring rights to people who have completed their sentences, there is no established process for verifying that sentences are complete. That might give the Legislature an opening to weigh in—and potentially to place the burden on would-be voters.
But the first test of implementation will come from the 67 county supervisors of elections. When the amendment goes into effect January 8, nearly two months before the state’s legislative session begins, it will be up to the county election officials whether to accept registration applications from former felons. And they are in a tricky position, according to Paul Lux, head of the Florida State Association of Supervisors of Elections. They have received no guidance from the Republican secretary of state, whose inaction is seen as an attempt to delay rights restoration.
“I’ve voiced from the beginning that my suspicion is there will have to be some sort of process, however formal or informal it might be, because we as supervisors have absolutely no way of knowing whether someone has met the terms of their probation or sentence,” Lux says. One job of the election supervisors is to maintain accurate voter rolls, he points out, and they will need information from the state on sentence completion in order to properly maintain them now. Several elections supervisors have already said they will not stop former felons from registering next month.
If the Legislature does get involved, there’s a way for it to play a helpful role in facilitating implementation. In a Thursday memo to the secretary of state, the American Civil Liberties Union and other groups that backed Amendment 4 said the body “should exercise its normal and proper oversight function of relevant state agencies to ensure that they implement the amendment.” This would help election officials register new voters and maintain the voter rolls. But thanks to its own track record, there’s little expectation in Florida that the Legislature will take this path.