New Strategies to Counter Florida’s War on Democracy:
Voter Disenfranchisement, Human Rights, and the ACLU
Bruce K. Friesen, University of Tampa
Julie Ebenstein, ACLU of Florida Staff Attorney
ABSTRACT
In 2004 the ACLU formed the Human Rights Program, dedicated to holding the U.S. government accountable to universal human rights principles in addition to rights guaranteed by the U.S. Constitution. This paper explores the ACLU’s human rights initiative regarding felon voter disfranchisement in Florida. After providing background on the issue, we analyze strategies to protect the right to vote within the human rights framework; the most recent of which is the ACLU of Florida’s submission to the UN’s Human Rights Committee. The HRC’s response to that submission is considered in light of ongoing efforts to protect the right to vote.
There was nothing new there now except a single commandment. It ran:
All animals are equal
But some animals are more equal than others
-- George Orwell, Animal Farm
I. Democracy and the Right to Vote
Inextricably linked to the concept of democracy is the right to vote. Democracy, defined as “…a government in which the supreme power is vestedin the people and exercised by them directly or indirectly through a system of representation usually involving periodically held free elections” (Merriam-Webster 2013), embeds political power in the hands of ordinary citizens. The democratic concept of one person – one voteembodies the notion of political equality and inclusion through the practice of voting. The constitutional right to vote is of special significance because it is protective of all other rights. Few ideals are more central to democracy.
Voting is not only the foundation of a democracy, it is an end in and of itself. Discussing an election and engaging in the process of registering to vote and voting, for example undertaking registration drives and speaking to fellow citizens about voting, is core First Amendment activity. Citizens’ collective engagement surrounding an election can include the conversations in which information is exchanged about candidates or the critical issues to be decided upon. In these exchanges, citizens encourage others to register to vote or undertake collective action campaigns to advance shared political or social goals.Voting (and non-voting) also affects individuals and communities in important ways. It has been associated with psychological well-being (Sanders 2001). Non-voting, due to felon disenfranchisement, has been demonstrated to negatively impact voting behavior among non-felons in low income minority neighborhoods (Bowers and Preuhs 2009).
Courts have recognized the inherent value of voting. Last year, a federal Court held Florida’s elections law unconstitutional because it restricted third party voter registration organizations’ ability to register new voters in Florida, and thus implicated First Amendment rights. See League of Women Voters of Fla. v. Browning, 863 F.Supp.2d 1155 (N.D.Fla.2012). The Court’s decision spoke to the First Amendment right to speak and act collectively with others by taking part in the registration and voting process. The Court held:
The assertion that the challenged provisions implicate no constitutional rights is plainly wrong. The plaintiffs wish to speak, encouraging others to register to vote, and some of the challenged provisions—for example, the requirement to disclose in advance the identity of an employee or volunteer who will do nothing more than speak—regulate pure speech. This is core First Amendment activity. Further, the plaintiffs wish to speak and act collectively with others, implicating the First Amendment right of association. More importantly, the plaintiffs wish to assist others with the process of registering and thus, in due course, voting. Voting is a right protected by several constitutional provisions; state election codes thus are subject to constitutional scrutiny. Together speech and voting are constitutional rights of special significance; they are the rights most protective of all others, joined in this respect by the ability to vindicate one’s rights in a federal court.League of Women Voters, 863 F. Supp. 2d, at 1158-59.
II. Voter Disenfranchisement in the U.S. and Florida: Background
Though often described as the “world’s greatest democracy,” the record of protecting the right to vote in the United States has been less than the ideal to which it aspires. Some will be surprised to learn that the U.S.Constitution does not contain a provision affirmatively granting the right to vote. The 14th, 15th, 19th and 26th Amendments protect citizens’ right to non-discrimination in voting based on race, sex and age. Many U.S. high school history textbooks fail to emphasize the right to vote has been contested terrain since the formation of the country (Loewen 2007). Keyssar (2000) points out that class, race, mobility, literacy, and the ability to speak English have all been formally used in the past to disqualify U.S. voters. As these impediments have been removed, “good behavior,” as measured by a felony conviction, has become the primary mechanism for voter disenfranchisement today.
While a number of northeastern states implemented felon disenfranchisement laws in the 1840s, its popularity mushroomed in the South during the Reconstruction Era as newly freed slaves were granted the right to vote. Florida officials responded by enshrining this policy into the state constitution, leaving citizens with a felony conviction a limited voice in their government for years to come. The original article (Article VI, Section 13) of the 1838 Constitution read, “Laws shall be made by the General Assembly, to exclude from office, and from suffrage, those who shall have been or have been or may thereafter be convicted of bribery, perjury, forgery, or other high crime, or misdemeanor…” (Florida Constitution Revision Commission 2013). Florida’s current (1968) Constitution continues this tradition, but opens the possibility for the restoration of such civil rights.
It is well documented that such laws have a disproportionate impact on African American and other minority communities (Chin 2002, Goldman 2004, Karlan 2004). Fellner and Mauer (1998) estimate that as much as 40 percent of African American men may be permanently disenfranchised in some states where such laws are in effect. When Florida enacted its most recent constitution in 1968, voting-age African Americans were more than twice as likely as non-African Americans to be barred from the vote on account of a prior felony conviction. The racial disparity in felon disfranchisement in Florida is as pronounced today. Of the 50 states in the Union, Florida disfranchises the highest proportion of the African American voting age population and disfranchises African American citizens at more than twice the rate of non-African American citizens.
The increase in the U.S. prison population, and the coinciding growth of the for-profit prison industry, has earned the U.S. the dubious distinction as the top country in the world for incarcerating its citizens. The surge in incarceration rates over the past 30 years further expands and skews disfranchisement.
There are many more collateral consequences of a felony conviction that hinder participation in the community. For example, once convicted of a felony, Floridians are limited in their ability to obtain certain occupational licenses, hindered from entering into property rental contracts, denied federal funding for college if there conviction is drug related, and depending on the crime, unable to serve in the U.S. military. An arrest becomes public record, accessible to neighbors, friends and potential future employers. Conviction for sex offenses may entail being listed for life in an online registry, with photo and home address. Convictions may trigger deportation, removing nearly life-long residents from the only home and community they have known.
Given the stigma surrounding felony convictions, it is not surprising that the U.S. rate of recidivism, within just three years of release, approaches 50% (State of Recidivism 2011). Braithwaite (1989) attributes this failure to a culture of disintegrative shaming in the U.S. Offenders remain stigmatized long after their sentence has been served and are denied a plethora of opportunities to reintegrate themselves into society as a result, including the right to vote in states like Florida, Kentucky, Iowa, and Virginia. These formal processes continue to alienate former inmates and contribute to recidivism by means of a self-fulfilling prophecy. By contrast, countries like Japan practice a culture of reintegrative shaming; based on a process of confession, repentance, and absolution. Such restorative justice practices involve punishment for crimes, but also address the fear and confusion of community members which criminal acts often produce. Reintegrative shaming techniques provide new opportunities for offenders to re-establish a sense of trust and integrity within the broader society. Japan, Braithwaite notes, has one of the lowest incarceration rates in the world, which is also in decline.
The desire to win elections is often at the heart of felon disenfranchisement initiatives. Felon disfranchisement, coupled with restrictive clemency processes, leaves voters in many states susceptible to political manipulation just prior to an election. In states such as Florida, the system of lifetime felon disfranchisement coupled with discretionary grants of clemency allows the Board of Executive Clemency to change rights restoration eligibility requirements before an election, preventing thousands of potential voters from casting a vote.
For example, soon after he became governor in 2007, Charlie Crist amended the Clemency Board rules such that citizens convicted of low level or non-violent offenses became eligible for voting rights restoration immediately following release from incarceration. From the 2007 amendments through the end of Crist’s term in 2010, 155,312 people had their rights restored, approximately 39,000 people per year. Rick Scott took over as Florida governor in 2011. He and the Clemency Board amended its rules to severely restrict eligibility for rights restoration. From the 2011 amendments through September 2012, 232 people have had their rights restored; approximately 141 people per year.
Increasing restrictions on the voting process in the years before a presidential election, a longstanding practice in Florida, can have a similar impact by causing de facto discrimination. In the year prior to the 2012 federal election, the Florida Legislature and Governor Rick Scott ushered in a number of elections law changes that made it more difficult for many to cast a vote and have their vote counted. Reasons for passing a restrictive omnibus elections bill were cast as an effort to decrease voter fraud, but no evidence was presented to indicate thatvoter fraud had occurred. As a result of the 2011 voting restrictions, many voters in the 2012 Presidential election stood in line for hours at Florida polls, had difficulty accessing information regarding registration, or were disqualified to vote and have their vote counted.
Such efforts can change the outcome of elections, and have the broader effect of coalescing real political power in the hands of fewer American voters. This ultimately compromises the one-person, one-vote integrity of working democracy. The quote from Orwell’s Animal Farm at the beginning of this paper is an apt metaphor. Orwell’s book parodied the corruptive practices of the socialist revolution in the former U.S.S.R., but Orwell mentioned in his original Preface that the lessons could equally apply to any democracy. The irony that the Preface was suppressed by the publishing company upon release of the first edition is not lost.
III. The ACLU’s History of Protecting the Civil Right to Vote
The American Civil Liberties Union (ACLU) was formed in 1920 as a countervailing force to abusive practices of government officials. At the time, U.S. Attorney General Mitchell Palmer was organizing illegal search and seizure practices and deporting members of the burgeoning labor movement without due process. A group of concerned citizens formed the ACLU and legally challenged Palmer’s activities. Since that time, the ACLU has provided legal challenge on a variety of issues, including the teaching of evolution in public schools (1925 Scopes trial), the internment of Japanese Americans during WWII, and a variety of legal cases involving the right to free speech. The ACLU today boasts close to 500,000 members with 100 staff attorneys and an additional 2000 volunteer attorneys. It handles close to 6,000 cases annually and wins far more cases than it loses.
At the signing of the Voting Rights Act of 1965, President Lyndon B. Johnson said, “[T]he vote is the most powerful instrument ever devised by man for breaking down injustice and destroying the terrible walls which imprison men because they are different from other men.” To that end, the ACLU has long used the Voting Rights Act and other tools of federal and state law to protect citizens’ right to vote.
Since 1965, Section 5 of the Voting Rights Act has been a key provision for protecting voters’ rights and enforcing non-discrimination in voting. Section 5 requires that certain localities submit all voting changes for review by either the U.S. Department of Justice (USDOJ) or a three-judge panel of the D.C. District Court before the changes are implemented. Covered localities have the burden of proving that a law in question does not intentionally discriminate on the basis of race and would not have a retrogressive impact on racial or language minority voters. As recently defined by the D.C. District Court, a limitation on ballot access may not be implementedif “(1) the individuals who will be affected by the [voting] change are disproportionately likely to be members of a protected minority group; and (2) the change imposes a burden material enough that it will likely cause some reasonable minority voters not to exercise the franchise.”Florida v. United States, 885 F.Supp.2d 299 (D.D.C. August 16, 2012).Asa central piece of the Voting Rights Act, Section 5 has been a primary federal tool over the past 48 years for protecting citizens against the states infringement on the right to vote.
In a blow to equality and voting rights protection, on June 25, 2013,the U.S. Supreme Court held that Section 4(b) of the Voting Rights Act is unconstitutional. Shelby County, Alabama v. Holder, 2013 WL 3184629, (U.S. June 25, 2013). While the Section 5 preclearance process remains intact, to the extent that Section 5 is predicated on the coverage formula in Section 4, Section 5 has now become inoperative.
The absence of Section 5 coverage presents a new hurdle for voting rights protection. However, other provisions of federal law continue to protect against state infringement on the right to vote, including Section 2 of the Voting Rights Act, the National Voter Registration Act, and the Help Americans Vote Act.The need for new strategies has also opened up new avenues for voting rights protection. As the ACLU of Florida and others continue to respond to evolving forms of voter suppression, theyhave looked to international human rights principles as an additional avenue for voting rights protection.
IV. New Strategies: Voting as a Human Right
The growth of the international human rights movement has presented new opportunities for social justice. The UN’s ratification of the Universal Declaration of Human Rights (UDHR) in 1948 ushered in a new era of post-colonial international relations and international law. By comparison, the U.S. Bill of Rights protects a mere handful of civil and political rights, compared to the more expansive list in the 30 articles of the UDHR, which also encompasses social and economic rights. The U.S. ratified the UDHR in 1948 and the first of three primary international human rights Covenants, and the International Covenant on Civil and Political Rights (ICCPR), in 1992. Enough political support could not be mustered to endorse the second Covenant on Economic, Social, and Cultural Rights (ICESCR) in 1976, however. Since then, formal U.S. endorsement of international human rights instruments has been virtually nonexistent. Reasons for the lack of support for a movement initiated by the U.S. are varied and complex, but include a reticence to be held accountable by a body other than the nation state.Nonetheless, the U.S. can still be questioned for failing to meet standards in those documents already signed and ratified.
The Cold War hindered the development of a global human rights agenda, but the social upheaval and protests of 1968 saw the rekindling domestically of interest in the notion of rights (Iriye, Goedde, and Hitchcock 2012). A variety of advocacy groups since that time have increasingly used the language of human rights to advocate for respect, freedom, and the right to self-determination. Historically, the ACLU most frequently defended the civil liberties and civil rights in the U.S. by appealing to the Bill of Rights in the U.S. Constitution. In 2004, however, the National ACLU established a Human Rights Program (HRP), which aims to “…hold the U.S. government accountable to universal human rights principles in addition to rights guaranteed by the U.S. Constitution” (HRP 2013).
There are several strategic advantages to appealing to human rights instruments and principles to challenge federal and state practices. First, the rights identified in human rights instruments are at times more expansive than the handful articulated in the U.S. Bill of Rights. Activists are thus able to challenge U.S. officials to respect a broader range of social justice principles. Second, the nature of human rights ultimately comes from an entity outside the U.S. rather than within. Concerns articulated by domestic nonprofit groups are vetted through an international body, achieving at times a level of gravitas or universality greater than those mounted within the domestic context. Though international accords may not always allow for legally binding remedies, they carry important moral weight by defining commonly held principles and in challenging countries to respect the human rights commitments they have made. Third, the U.S. remains concerned about its international reputation. State Department officials often describe the international role of the U.S. as defending and expanding human rights. Serious criticisms of a lack of respect for such at home can garner the immediate attention of powerful political actors.