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Case of the Month Legal Issues
Black State Legislators et al. v. Moore
Florida permanently disenfranchises individuals who are convicted of a felony unless they apply for and are granted restoration of civil rights. Article VI, section 4 of the Florida Constitution provides that "[n]o persons convicted of a felony. Shall be qualified to vote or hold office until restoration of civil rights."
Two Florida statutes repeat this prohibition on voting by convicted felons. The Florida Voter Registration Act, F.S.A. § 97.041 (1996), states that, "[a] person who has been convicted of any court of record and who has not had his or her right to vote restored pursuant to law" is not entitled to register and vote even if otherwise qualified. In turn, Florida's correctional statutes provide that "[u]pon conviction of a felony as defined in Sec.10, Art. X of the State Constitution, the civil rights of the person convicted shall be suspended in Florida until such rights restored by a full pardon, conditional pardon or restoration of civil rights."
Restoration of civil rights falls under the Governor's authority to grant clemency, or pardon, to convicted felons. Article IV, section 8 of the Florida Constitution authorizes the governor to "suspend collection of fines and forfeitures, . . . And, with the approval of two members of the cabinet, grant full or conditional pardons, restore civil rights, commute punishment, and remit fines and forfeitures for offenses," except in cases of treason or where impeachment results in conviction. A person convicted of a felony "may be entitled to the restoration of all the rights of citizenship" if he or she receives a full pardon, served his or her maximum sentence, or been granted final release by the parole board. F.S.A. § 940.05 Because restoration of rights is entrusted to the Governor, the state legislature lacks the authority to pass a statute setting the terms for restoration of rights.
Instead, the Governor has issued Rules of Executive Clemency that set out the eligibility requirements for restoring voting rights. Under these rules, an offender "may not apply for the restoration of his or her civil rights unless he or she has completed all sentences imposed and all conditions of supervision." Fla. Admin. Code Ann. R. T. 27, App. Rule 5.D (1999).
There are three ways ex-felons may go about applying for the restoration of their voting rights. Rule 9, the simplest procedure, provides for the restoration of civil rights without a hearing if the applicant meets a list of specific requirements. The second procedure is an application for clemency. Felons seeking restoration of their civil rights via this procedure must complete, submit, and file an application to the Office of Executive Clemency. It's important to note that each application for clemency must have attached, certified copies of the charging instruments, which in this case means copies of the indictments, information or warrant with supporting affidavits for EACH and EVERY felony conviction, including those that occurred within the State of Florida and outside the state.
The third procedure is to seek a waiver of the rules to apply for clemency if a felon cannot meet the other requirements. Again, this requires the completion, submission, and filing of a form with supporting documents consisting of the information/indictment and a copy of the judgment, sentence and other supporting documents to the Office of Executive Clemency.
To better facilitate the restoration of an offender's civil rights, the application process is required to be done and completed prior to release from supervision. Fla. Stat. § 944.293 (1997). Prior to an offender's release from supervision, Florida Department of Corrections officers are required to obtain the forms needed to apply for restoration of rights, assist the offender in completing the form, and "ensure that the application and all necessary material are forwarded to the Governor before the offender is discharged from supervision." F.S.A. § 944.293.
Although the restoration of voting rights is technically available, it rarely happens because of restrictive eligibility rules and procedural hurdles. These governmental restrictions have led to legal challenges to felon disenfranchisement laws in Florida.
On March 14, the ACLU of Florida's Equal Voting Rights Project filed a lawsuit challenging the failure by the State of Florida Department of Corrections to assist ex-felons in applying for restoration of their civil rights, including the right to vote. To read a press release on the case, Florida Conference of Black State Legislators, et al. v. Michael Moore, click here. For an on-line version of the complaint, click here.
The lawsuit claims that the Florida Department of Corrections is not fully complying with Fla. Stat. § 944.293, which requires the department to provide inmates with the necessary forms and application materials prior to their release date. According to the lawsuit, Department of Corrections officials are only assisting the offenders in the completion of a Department of Corrections' screening form (DC 4-322) intended to make a threshold determination of whether the offender qualifies for the restoration of civil rights without a hearing, as stated in Rule 9.
There have been other challenges in the past as well.
In Beacham v. Braterman, a 1969 Florida case challenging whether it was a violation of equal protection or due process for the Governor not to issue standards when considering restoring the right to vote, a threejudge court sustained the constitutionality of Florida's felon disenfranchisement laws, and the Supreme Court summarily affirmed the decision. Beacham v. Braterman, 300 F. Supp 182 (S.D. Fla.), aff'd mem. 396 U.S. 12 (1969).
There have been two U.S. Supreme Court decisions, one in 1974 and one in 1985, related to the constitutionality of felon disenfranchisement laws. In Richardson v. Ramirez, 418 U.S. 24 (1074), the Supreme Court ruled that felon disenfranchisement statutes are not subject to the "strict scrutiny" standards applicable to other restrictions on voting. (Meaning judges, in cases that raise similar legal issues, have more leeway when it comes to considering the constitutionality of the statutes.) The court also upheld a provision of the California Constitution that permanently disenfranchised persons convicted of infamous crimes. The Court based its decision on Section 2 of the Fourteenth Amendment, which addresses the distribution of congressional representatives among the states. The Court also noted that it had upheld felon disenfranchisement statutes on two prior occasions, Davis v. Beason (1890) and Murphy v Ramsey (1885).
In 1985, in Hunter v. Underwood, 471 U.S. 222 (1985), the U.S. Supreme Court held that a provision of Alabama's Constitution disenfranchising person convicted of crimes involving vice or immorality (legally defined as "moral turpitude") violated the Equal Protection Claude because it was enacted with an intent to discriminate against African-Americans. The Court made little reference to Ramirez, stating only that it was "confident that [section] 2 was not designed to permit the purposeful racial discrimination attending the enactment and operation of [a statute disenfranchising criminal offenders] which otherwise violates [section] 1 of the Fourteenth Amendment. Nevertheless, claims of intentional racial discrimination have been unsuccessful in regard to felon disenfranchisement laws in Maryland, Mississippi, and Washington.
In September 2000, the Brennan Center for Justice at NYU School of Law filed a federal lawsuit on behalf of ex-felons in September, claiming Florida's voting ban violates the Fourteenth Amendment's Equal Protection Clause and well as the Voting Rights Act of 1965. The case is pending in U.S. District Court in Miami. To read the Brennan Center lawsuit click here.
