I have read the Florida Supreme Court's advisory opinion--meaning it is still enforceable, but was one where there were no express parties to litigation--as to the Florida legislature's law, which the governor signed, that felons must pay all financial obligations imposed in the felony sentence before being allowed to vote. I must admit I was shocked to read the amendment sponsors had said and admitted, in their arguments in favor of the original Amendment 4, passed with 60% of the vote, payment of fines and other restitutions in the four corners of the sentence had to be paid before felons could vote again. I therefore found the Florida Supreme Court is correct to opine the later legislature's law regarding payment of all obligations under the sentence is consistent with the intent of the Amendment 4. The only dissenting judge said he agreed with the majority on the conclusion, but raised the concern, that I also have, that the majority of Florida justices are relying too much on textual readings and not enough on extrinsic evidence, as texts are almost invariably ambiguous.
What a lot of people may not know is that, in felony sentences, if there are financial obligations of a more civil nature, courts will add those civil monetary obligations into the criminal sentencing order. Thus, a felon may serve his or her time but still not be fulfilling the part of the sentence that deals with money or financial obligations.
At this point in our nation's history, and, as part of our society recognizing how criminal laws and enforcement have been bound up with the nation's racist practices and philosophies, I am wondering why it is that we disenfranchise people committed of crimes at all. I have been reading through this article from Indiana Journal of Law and Social Equality, March 3, 2018, and finding it fascinating and potentially persuasive analysis. The gist of the extensive article is the focus on the language of the 15th Amendment to the US Constitution regarding voting rights. The amendment states:
Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
Section 2. The Congress shall have power to enforce this article by appropriate legislation. (Emphasis added)
I admittedly had not looked as carefully into this issue, as I should have, and had assumed we are only talking about people serving their sentences in terms of time or duration. However, the Florida Supreme Court showed me the ACLU and other organizations fighting for felon reenfranchisement haven't looked beyond that too carefully, either, as they should have known how criminal courts tack on monetary obligations akin to a civil proceeding.
Let's look at the matter this way? Does a person found liable in civil fraud or civil assault and battery lose their right to vote? Not at all. How about the executives at DuPont who knowingly allowed workers and surrounding communities to be poisoned, which led to early and often painful deaths to thousands and potentially millions of people? Are you kidding? Just ask Eric Holder, Obama's Attorney General, who never prosecuted any of the corporate executives at DuPont. Instead, it is all resolved in civil lawsuits, mostly paid with insurance company money, not their own money, even though the conduct is essentially the same as what a criminal court would find. Yes, the burdens of proof are significantly different. In a civil case, the burden of proof on the plaintiff, the party suing, is preponderance of the evidence, which is essentially just over 50% certainty in the liability of the person. In a criminal case, the prosecutor's burden of proof is beyond a reasonable doubt, which, in percentage numbers, tends to correlate to around 80% certainty. This is why I often say this is how a criminal case jury acquitted O.J. Simpson for murder of his ex-wife and her friend, but a civil case jury found O.J. liable for wrongful death of the ex-wife and her friend. It is also the case most criminal defendants are unrepresented or have harried public defenders, while the corporate executives have top litigators in the nation representing them, who are able to create doubt much more effectively--and let's face it, these defendants look like nice people, don't they? And of course, most of the corporate executives are white people. Coincidence? I think not.
The question I have then is why should someone who served a criminal sentence for the criminal felony still be disenfranchised simply for not paying the monetary obligation that was not reimbursed? The Florida Supreme Court appears to be correct that the sponsors of Florida's Amendment 4 admitted the service of the time included payment of financial obligations. They properly saw no room, in response to the narrow question they chose to answer, to find some financial obligations set forth in the sentence may not be covered, a position a few of the amicus briefs had advocated.
For me, I am leaning toward a conclusion that none of these felon disenfranchisement laws may get past the 15th Amendment's statement that no person may be deprived of the vote on the basis of skin color or "condition of servitude." The irony for conservatives, as with those Florida Supreme Court Justices, and Justices like Scalia and a few others, who want texturalist interpretations of statutory and constitutional laws, with textualism meaning only reading the language of the text of a statute or constitutional provision, and rejecting extrinsic evidence, which would include legislative history and constitutional and other history, is conservative justices may eventually be forced to find nearly all felon disenfranchisement laws to be unconstitutional, as the word "servitude" speaks much more, in a "common sense" way (that is a hallmark phrase in textualist analysis), to time served or being served, not financial obligation. One may look to the dictionary definitions and not find the word "servitude" easily translates into anything other service that occurs over time, or, in the property law context, the ability of one person to use another person's land--again, something not really monetary.
Of course, if one uses extrinsic evidence, which is studying the history of laws in our nation, we find reasonably persuasive evidence that felon disenfranchisement laws have existed before and, most importantly, after the enactment and ratification of the 15th Amendment. However, the law review article I cited above makes the point we should not simply look at the history of the fact of these legislative pronouncements. We should look more critically through this history and recognize the inherent racism behind most of these laws, and ask ourselves, do we want to rely upon laws passed with racist intent to continue barring felons from voting? We know how rich people, generally white, get away with paying civil fines and restitution and never get criminally prosecuted, while the poor, which have overrepresentation of minorities (skin color and ethnicities) for felonies that deal with drug possession, larceny, and violent crimes. Some may want to draw the line at violent crimes, but as I learned last year about Vermont, Maine, and other nations, which have long not drawn the line at violent crimes in allowing those still serving time in jail for felonies to vote, I am not seeing how society is harmed in allowing felons who have completed their time served or those who are still serving time should be barred from voting. I see no empirical evidence these people are voting in reckless ways or undermining society. Here is a portion of the Atlantic article from September 2019 about the topic of allowing prisoners with felony convictions to continue to vote:
In May, Tyler Orvis, a 36-year-old man from Hinesburg, Vermont, got out of prison with more than a year to go before Americans will vote for president. He plans to cast his ballot for Bernie Sanders in 2020 if the Vermont senator secures the Democratic nomination. Otherwise, he will vote to reelect President Donald Trump.
Tyler Orvis sounds like some of my wife's relatives from the Midwest, who cast their primary vote in 2016 for Sanders and ended up voting for Trump. These are not "liberals" in the sense we normally see the term bandied about. These are people who feel the boot of the Establishment on them, and maybe they are not as reckless as some of us like to think. But to deny them that right to vote strikes me more and more as morally indefensible.
Therefore, the most important question is one the Florida Supreme Court refused to consider, which is why it said in the beginning it would only answer the governor's narrow question about the legislature's post-Amendment 4 statutory law. That most important question is whether any felon who has served the time of the sentence, or is serving time, should be barred from voting. For me, as a student of our nation's deeply racist history, I am finding it harder and harder to justify any law that bars a felon who served his or her time or currently serving time from voting. I am finding hard to understand the logic behind the sentiment that simply because one has been convicted of a crime, why that person should be barred from voting. For the phrase "condition of servitude" does not necessarily mean only those who have served their time, but who are still serving their time following a felony conviction. How about that, textualists?
For those who want to argue from extrinsic evidence of constitutional and political history, those who make such an argument should have to defend against the point that those laws have been primarily rooted in our nation's terrible history of racism. I am not yet sure one way or another whether that point is persuasive in the sense of being convincing to make all felon disenfranchisement laws void under our nation's Constitution. However, reading the Indiana law review article, there is a reasonable case to be made in that regard. If accepted, the felon disenfranchisement laws, including for those currently serving sentences, would be voided. And, again, ask ourselves? Where is the evidence of reckless, destructive voting from felons, and how is it any different than the rest of us?
UPDATE FEB 19, 2020: The 11th Circuit Court of Appeals, a federal appellate court which covers the Florida and immediate surrounding states, has found the payment of legal financial obligations (LFOs) under Amendment 4 unconstitutional under federal voting rights to the extent it bars voting rights to those who are indigent or otherwise cannot repay the money portion of sentence. It is well worth the read if one is a lawyer especially. However, if one is not, the appellate court ruled unanimously in its three judge panel, voting rights require a court to exercise heightened scrutiny, instead of giving the state voters and state itself the benefit of the doubt; there is clear evidence of deprivation of voting rights when many felons simply lack the money to pay nearly anything, as their lives are already ruined to a great extent; and the amendment portion may be severed and still give the felons the right to vote in Florida. The appellate court found the voters were not as well informed to know people who had no money were going to be deprived of the right to vote. As I said above, I think the framers of the amendment had knowledge, but is that enough for the people who voted to have that knowledge? I certainly saw nothing in the media reports about this twist, and did not understand Amendment 4 to contain a loophole to drive a Mack truck through to deprive upwards of 80% of felons from voting. We will see what the larger panel does with this decision, and then what the US Supreme Court does with this decision. We will also see whether the US Supreme Court will put a hold on the entire Amendment to stop any felons from voting this year. They may do that, which will tell us how they will uphold the LFO requirement before allowing felons to vote.
UPDATE FEB 19, 2020: The 11th Circuit Court of Appeals, a federal appellate court which covers the Florida and immediate surrounding states, has found the payment of legal financial obligations (LFOs) under Amendment 4 unconstitutional under federal voting rights to the extent it bars voting rights to those who are indigent or otherwise cannot repay the money portion of sentence. It is well worth the read if one is a lawyer especially. However, if one is not, the appellate court ruled unanimously in its three judge panel, voting rights require a court to exercise heightened scrutiny, instead of giving the state voters and state itself the benefit of the doubt; there is clear evidence of deprivation of voting rights when many felons simply lack the money to pay nearly anything, as their lives are already ruined to a great extent; and the amendment portion may be severed and still give the felons the right to vote in Florida. The appellate court found the voters were not as well informed to know people who had no money were going to be deprived of the right to vote. As I said above, I think the framers of the amendment had knowledge, but is that enough for the people who voted to have that knowledge? I certainly saw nothing in the media reports about this twist, and did not understand Amendment 4 to contain a loophole to drive a Mack truck through to deprive upwards of 80% of felons from voting. We will see what the larger panel does with this decision, and then what the US Supreme Court does with this decision. We will also see whether the US Supreme Court will put a hold on the entire Amendment to stop any felons from voting this year. They may do that, which will tell us how they will uphold the LFO requirement before allowing felons to vote.
