A Common-Sense Decision on Felon Voting in Florida | Opinion

Two years ago, the citizens of Florida made it clear where they stood when it came to felons voting: They approved Amendment 4, which requires prisoners to complete all the requirements of their sentence before their ability to vote is restored—including paying any court-ordered restitution to the victims of their crimes.

Now, in Jones v. Florida, the 11th Circuit Court of Appeals has upheld the constitutionality of their decision.

Amendment 4 provides for the automatic restoration of voting rights to felons "upon completion of all terms of sentence, including parole or probation" (emphasis added). In order to implement the amendment, the Florida legislature passed Senate Bill 7066, which defined the completion of one's sentence as "any portion of a sentence contained in the sentencing document, including imprisonment, probation, restitution, fines, fees and costs."

Prior to the amendment's passage, Florida's Constitution prohibited felons from voting until their right to vote had been restored by the Office of Executive Clemency; felons had to apply for restoration. Such a prohibition is expressly permitted by Section Two of the 14th Amendment, which allows states to "abridge" the right of individuals to vote "for participation in rebellion, or other crime."

While 48 states restore the right of felons to vote either automatically or through an application process after they have completed their sentences, there is actually no constitutional requirement that they do so. As the 11th Circuit pointed out, the U.S. Supreme Court held in Richardson v. Ramirez (1974) that the 14th Amendment "permits States to disenfranchise all felons for life, even after they have completed their sentences." Two states, Maine and Vermont, allow felons to vote even while they are in prison.

A number of felons took issue with the Florida legislature's interpretation of the word "all" to mean that a felon has to pay all "restitution, fines, fees and costs" that are part of their sentence before their ability to vote is restored. The felons argued that this was discrimination on the basis of wealth and violated the Equal Protection and Due Process Clauses of the 14th Amendment, as well as the prohibition on poll taxes in the 24th Amendment.

The district court ruled in favor of the plaintiffs, notwithstanding that the Florida Supreme Court had ruled the phrase "all terms of sentence" in the amendment approved by voters includes all of the financial obligations imposed as part of a criminal sentence.

But the 11th Circuit reversed the district court. In his majority opinion, Chief Judge William Pryor wrote that Florida is not discriminating on the basis of wealth, but is simply distinguishing between felons who have fully completed the terms of their sentence and those who have not, "regardless of race, religion or national origin."

The court's majority concluded that the government's decision to distinguish between such felons is "rationally related" to the government's legitimate interest in punishing felons who disregard the law (by failing to complete their sentence) while restoring the rights of reformed felons who fulfill the demands of the justice system. These are "legitimate goals for a State to advance."

Ex-felon registering to vote in Florida
Ex-felon registering to vote in Florida ZAK BENNETT/AFP via Getty Image

The court also dismissed the challengers' claims that the state's requirements violated the 24th Amendment by imposing the equivalent of a poll tax. The court concluded that requiring felons to pay all court fines, fees and restitution is not a tax, but a punishment. Furthermore, the 24th Amendment prohibits individuals being denied the right to vote "by reason of" their failure to pay a tax. Here, felons are being denied the right to vote not "by reason of" a tax, but because of the punishment imposed for their felony conviction.

As for the felons' claims over vagueness of the law, the court held that these arguments were unpersuasive. For a law to be void for vagueness, it must "fail to give ordinary people notice of the conduct it punishes." Florida's law is perfectly clear: A felon cannot register to vote if he knows he has not completed all of the requirements of his sentence. If a felon is confused over whether he has fulfilled all of the requirements, Florida allows a felon to request an advisory opinion on his eligibility before he registers, and "any felon who registers in reliance on an opinion is immune from prosecution," according to the court.

As this case once again emphasizes, it is up to states to make their own decisions on how and when to restore the ability of felons to vote, and they have very wide latitude in doing so. It makes sense to take away the right of felons to vote. After all, as was pointed out in a 1967 decision cited by the 11th Circuit, "it can scarcely be deemed unreasonable for a state to decide that perpetrators of serious crimes shall not take part in electing the legislators who make the laws, the executives who enforce these, the prosecutors who must try them for further violations or the judges who are to consider the cases."

In other words, why should individuals who have shown they are not willing to abide by the law have the ability to help decide what those laws should be—and who should enforce them?

No one disputes that felons should regain their ability to vote at some point after they have shown that they have reformed, have completed all of the terms of their sentence and are now willing to abide by the rules of our society. But what is particularly ironic about the felon voting fight in Florida is that those who pushed for this automatic restoration ignored the fact that there is a whole series of other rights that you lose if you are convicted of a felony—not just the ability to vote.

Not only do you lose your Second Amendment right, but as the website of the Florida Clemency Board explains, you also lose your ability to sit on a jury or run for public office. But Amendment 4 didn't restore any of those rights; you still have to apply to get those restored.

So apparently, the purveyors of this initiative trust felons to make the right choice in the voting booth, but not in a courtroom or the halls of government. Which makes it look like all they were crassly after were votes, and not the actual reintegration of felons into Florida communities.

Hans A. von Spakovsky is a senior legal fellow manager of the Election Law Reform Initiative at The Heritage Foundation and a former election official. He is the coauthor of Who's Counting? How Fraudsters and Bureaucrats Put Your Vote at Risk and Obama's Enforcer: Eric Holder's Justice Department. Courtney Baer is a member of the Young Leaders' Program at Heritage.

The views expressed in this article are the writers' own.

A Common-Sense Decision on Felon Voting in Florida | Opinion | Opinion