Say Yes to Second Chances – Returning Citizens Can Register to Vote Beginning January 8, 2019
Today marks an incredible moment for the State of Florida – with over 60 percent of votes in support during the 2018 election, Amendment 4 became Florida law. This was only possible due to the tireless commitment of several organizations, notably Floridians for a Fair Democracy, Florida Rights Restoration Coalition, and the American Civil Liberties Union. The “Say Yes to Second Chances” campaign took course over several years, with thousands of volunteers dedicating countless hours obtaining signed petitions and then educating citizens about voting Yes on Amendment 4 during the election.
Prior to this, Florida was one of only four states that did not automatically restore the right to vote to those with felony convictions who completed their sentence. Instead, Florida law tasked the Governor with authorizing the restoration of voting rights through clemency applications. Five years after Rick Scott became Governor he had restored the right to vote to fewer than 2,000 Floridians with about 20,000 applications pending. By 2016 the number of disenfranchised Floridians reached 1.6 million.
Despite overwhelming bipartisan support, there may exist political roadblocks to immediate implementation of the law – particularly because the law will add several hundred thousand voters to our state. What is the potential roadblock? When a constitutional amendment passes in Florida, it may fall under one of two categories: either its language is self-executing, or its language lacks sufficient guidance on implementation, meaning the legislature must craft implementing language.
While all supporters of Amendment 4 staunchly believe the language is self-executing, noted opposers included incoming Governor-elect Ron DeSantis (R), Florida Secretary of State Ken Detzner (R), and Florida Senate President Bill Galvano (R), believe the legislature (convening in March 2019) needs to craft implementing language.
Luckily there exists case law guidance on this issue. The Supreme Court of Florida in Gray v. Bryant developed a test to determine whether a constitutional amendment is self-executing:
“The basic guide, or test, in determining whether a constitutional provision should be construed to be self-executing, or not self-executing, is whether . . . the provision lays down a sufficient rule by means of which the right or purpose which it gives or is intended to accomplish may be determined, enjoyed, or protected without the aid of legislative enactment. . . . If the provision lays down a sufficient rule, it speaks for the entire people and is self-executing. . . . The fact that the right granted by the provision may be supplemented by legislation, further protecting the right or making it available, does not of itself prevent the provision from being self-executing.”
Let’s take a look at the language of Section 4 of Article VI of the Florida Constitution before Amendment 4:
Article VI, Section 4. Disqualifications.—
No person convicted of a felony, or adjudicated in this or any other state to be mentally incompetent, shall be qualified to vote or hold office until restoration of civil rights or removal of disability.
And let’s see what Amendment 4 added (underlined):
Article VI, Section 4. Disqualifications.—
(a) No person convicted of a felony, or adjudicated in this or any other state to be mentally incompetent, shall be qualified to vote or hold office until restoration of civil rights or removal of disability. Except as provided in subsection (b) of this section, any disqualification from voting arising from a felony conviction shall terminate and voting rights shall be restored upon completion of all terms of sentence including parole or probation.
(b) No person convicted of murder or a felony sexual offense shall be qualified to vote until restoration of civil rights.
The question is whether the language lays down a sufficient rule, speaks to the people (as opposed to the legislature as guidance on how to implement it), and can be enjoyed without the need for legislative enactment.
It is evident upon reading that all the information needed is included: the who (anyone with felony convictions; specific exclusions in section (b)), the what (removal of disqualification from voting); the when (upon completion of all terms of sentence), the where clearly is the state of Florida, and the how (voting rights shall be restored upon completion) – how does one exercise the right to vote in Florida? Well, you begin by registering.
While there may be supplemental legislation enacted to assist in making the amendment available, it is not necessary as written. Of particular historical and legal importance, the Florida courts have generally presumed that constitutional amendments are self-executing due to the rationale that the legislature, either through delay or misinterpretation, could and would defeat the will of the people should they disagree.
And isn’t that exactly what a democracy should look like? Allowing voters to make decisions and implement them without biased interference from lawmakers that, as we know, have motives aside from their duties to their constituents.
The current voter registration form includes a portion that asks applicants to affirm under oath that they are not convicted felons, or that, if they are, their right to vote has been restored. According to Howard Simon, the former director of the ACLU of Florida, “people have a right to register to vote if they truthfully affirm the information they provide on the voter registration form” and it is then the responsibility of the government to confirm whether such affirmation is true and proceed accordingly.
Beginning today, all those with prior felony convictions can now register to vote so long as they have completed all portions of their sentence and were not convicted of murder or a felony sexual offense.
The stories are already breaking: On Twitter, Zac Anderson reports that “North Port resident Alan Rhyelle is the first convicted felon to register to vote under Amendment 4 in Sarasota County.”
If you are a returning citizen, ready to take a step towards exercising your right to vote, please visit the Florida Rights Restoration Coalition website and register to vote today.
For information on other supportive organizations and elected officials, see https://ballotpedia.org/Florida_Amendment_4,_Voting_Rights_Restoration_for_Felons_Initiative_(2018)
Brennan Center, November 7, 2018 “Voting Rights Restoration Efforts in Florida” at https://www.brennancenter.org/analysis/voting-rights-restoration-efforts-florida
125 So. 2d 846, 851 (Fla. 1960); Florida Office of the Attorney General, Advisory Legal Opinion – AGO 2000-30 at http://www.myfloridalegal.com/ago.nsf/Opinions/63F08D45CA393950852568E10067C75B; https://ballotpedia.org/Florida_Amendment_4,_Voting_Rights_Restoration_for_Felons_Initiative_(2018); https://floridarrc.com/amendment-4-faq/
Gray v. Bryant, 125 So. 2d at 851 – “[T]he modern doctrine favors the presumption that constitutional provisions are intended to be self-operating. This is so because in the absence of such presumption the legislature would have the power to nullify the will of the people expressed in their constitution, the most sacrosanct of all expressions of the people.”
Taylor, Langston, Tampa Bay Times, Amendment 4 is happening: Ex-felons can register to vote Tuesday, at https://www.tampabay.com/florida-politics/buzz/2019/01/04/amendment-4-is-happening-ex-felons-can-register-to-vote-tuesday/
Anderson, Zac (@zacjanderson), Twitter January 8, 2019 at https://twitter.com/zacjanderson/status/1082625588798599168?s=21&fbclid=IwAR0UlwkC9v9C-NITm1xSrOypwXht1wEdxUJM4zPfFooasxaqgr8ve5SyyNs
Posted in: Voting Rights