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on cases and developments in law and the legal system.
on cases and developments in law and the legal system.
By Emma Davies
Emma Davies is a freshman in the College of Arts and Sciences at the University of Pennsylvania.
Up until the 2018 Midterm Elections, Florida had one of the strictest disenfranchisement laws in the United States. Along with Iowa and Kentucky, Florida barred all people convicted of a felony from voting, unless they independently applied for a highly restrictive clemency application. Under Florida Governor Rick Scott, there were more than 20,000 pending cases, but only about 400 people were granted clemency each year . As a result, some individuals waited more than 10 years to have their case heard, and it is estimated that it would take 51 years to hear the entirety of the backlog, if no new cases were added . This policy, compounded with the fact that Florida has one of the highest incarceration rates (as a percentage of the population) , had led to Florida being one of the most disenfranchised states. However, this November, 64% of Florida voters voted in favor of the state constitutional amendment titled the “Voting Rights Restoration for Felons Initiative,” aka Florida Amendment 4, in a referendum. This amendment automatically restored voter rights for people with past felony convictions upon completion of sentencing, including parole and probation, amounting to the enfranchisement of 1.6 million people . The results of this ballot initiative is extensive, and could potentially impact the direction of Florida’s 29 electoral votes in the 2020 National Elections .
Florida’s past policy of disenfranchisement is not an anomaly. Section 2 of the 14th Amendment to the United States Constitution gives legal support to a state’s ability to determine disenfranchisement policy towards those convicted of a crime, as ruled in the 1977 Supreme Court decision Richardson v. Ramirez . Section 1 of the 14th Amendment, commonly known as the “Equal Protection Clause” has failed to be successfully used as invalidation of the Section 2 exclusion of criminals from the right to vote . Prior to November 6, 2018, 6.1 million Americans could not exercise the right to vote on grounds of holding felony convictions . Currently, all states, except for Vermont and Maine, have restrictions on voting rights for those convicted of a felony. In 34 states, one is barred from voting even after release from prison. As a result, around 4 million citizens remain disenfranchised, despite reentry into society . For those who are in the post-sentence phase, meaning they are adjusting back into daily life, with a job, kids, and a permanent residence, they are without a full recovery of rights. Furthermore, 11 states prevent convicted criminals from regaining voter status after completing prison, parole, and probation. Of those disenfranchised, 50% are in the post-sentence demographic .
Though some states have recently undergone changes to legal statutes, such as Maryland, which repealed its lifetime voting ban in 2007, voter disenfranchisement as a whole has increased dramatically over the past couple decades overall. From 1976 to 2016, the disenfranchised population of felons increased from around 1.2 million to 6.1 million, displaying the magnitude of the issue. As a result, the disenfranchised makes up a significant portion of the population; in Alabama, Kentucky, Mississippi, Tennessee, and Virginia, more than 7% of the population cannot vote 
The enormity of disenfranchisement is further complicated by its racial implications. Today, felon disenfranchisement laws are criticized for mirroring the laws of Jim-Crow era politics, as they overwhelmingly affect ethnic minorities and those of lower socioeconomic status. Even though disenfranchisement laws are not explicitly racially discriminatory, the discriminatory enforcement of laws have caused disenfranchisement policies to particularly affect racial minorities.
Heavy policing of minority-majority neighborhoods, lingering effects of the “war on drugs,” explicit and implicit racial profiling, along with other factors, have contributed to a conviction population that is disproportionately African American. Further, biases and inequalities throughout the trial process from defense counsel assignment to sentencing discriminates against African Americans . Nationally, incarceration rates of African Americans in state prisons are 5 times higher than that of whites, and in some states, at least 10 times higher . African Americans are more likely to be arrested, to be sentenced, and tend to face harsher sentences. They are disproportionately represented in the prison population, and therefore the disenfranchised population too .
Moreover, a 2003 study found that a“larger non-white prison population significantly increases the odds that more restrictive felon disenfranchisement laws will be adopted,” meaning that disenfranchisement laws are most likely to be applied in states where minorities represent a larger portion of the prison population . To this end, as of 2016, the disenfranchisement rate for the African American population is more than four times higher, than that of non-African American populations. Thus, the rate of conviction, compounded with the correlation between African American populations and severity of disenfranchisement laws, result in policy that is not neutral in application.
Of note, in some states, disenfranchisement laws also discriminate against economic status. For example, Tennessee requires all felons to repay legal fees, fines, and other obligation before being able to vote again, thereby creating barriers for low-income people to have their rights reinstated.
Felon disenfranchisement is not a simple issue. It is shaped by criminal justice policy that has widely been criticized as discriminatory, and outdated. The implications of these policies call into question the extent of the 14th Amendment's’ protections and exemptions for the right to vote. However, if the public opinion of Florida mirrors that of the nation at large, then perhaps other states will follow suit in alleviating restrictions on voting rights.
As it stands, mass incarceration remains a problem in America, and as a result, the amount of people affected by disenfranchisement laws remains alarmingly high. The results in Florida have the potential to change voting composition dramatically, and may lend itself to shifts in outcomes for local, state, and even national elections.
 "Voting Rights Restoration Efforts in Florida." Brennan Center For Justice. February 12, 2018. Accessed November 07, 2018. https://www.brennancenter.org/analysis/voting-rights-restoration-efforts-florida.
"Hand v. Scott." Fair Elections Legal Network. May 25, 2018. Accessed November 05, 2018. http://fairelectionsnetwork.com/hand-v-scott/.
United States of America. U.S Department of Justice. Bureau of Justice Statistics. Bureau of Justice Statistics. By Danielle Kaeble and Mary Cowhig. April 2018. Accessed November 5, 2018.
"Florida Amendment 4, Voting Rights Restoration for Felons Initiative (2018)." Ballotpedia. Accessed November 05, 2018. https://ballotpedia.org/Florida_Amendment_4,_Voting_Rights_Restoration_for_Felons_Initiative_(2018).
"2016 Presidential Election Interactive Map." 270toWin.com. June 6, 2017. Accessed November 06, 2018. https://www.270towin.com/maps/DOyj2.
Volokh, Eugene. "Why Has the Supreme Court Held That Felons Lack the Constitutional Right to Vote?" The Washington Post. April 29, 2015. Accessed November 06, 2018. https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/04/29/why-has-the-supreme-court-held-that-felons-lack-the-constitutional-right-to-vote/?noredirect=on&utm_term=.6f20451a298b.
"Felony Disenfranchisement." The Sentencing Project. 2018. Accessed November 06, 2018. https://www.sentencingproject.org/issues/felony-disenfranchisement/.
Holodny, Elena. "Millions of American Adults Are Not Allowed to Vote - and They Could Change History." Business Insider. January 03, 2018. Accessed November 06, 2018. https://www.businessinsider.com/what-if-felons-could-vote-2017-7.
Uggen, Christopher, Ryan Larson, and Sharon Shannon. "6 Million Lost Voters: State-Level Estimates of Felony Disenfranchisement, 2016." The Sentencing Project. October 06, 2016. Accessed November 06, 2018. https://www.sentencingproject.org/publications/6-million-lost-voters-state-level-estimates-felony-disenfranchisement-2016/.
ProCon.org, "Number of People by State Who Cannot Vote Due to a Felony Conviction," ProCon.org. last modified October 4, 2017. http://felonvoting.procon.org/view.resource.php?resourceID=000287.
"Report to the United Nations on Racial Disparities in the U.S. Criminal Justice System." The Sentencing Project. April 19, 2018. Accessed November 06, 2018. https://www.sentencingproject.org/publications/un-report-on-racial-disparities/.
The Sentencing Project. "The Color of Justice: Racial and Ethnic Disparity in State Prisons." News release, 2016. The Sentencing Project. Accessed November 5, 2018. https://www.sentencingproject.org/wp-content/uploads/2016/06/The-Color-of-Justice-Racial-and-Ethnic-Disparity-in-State-Prisons.pdf.
"Criminal Justice Facts." The Sentencing Project. Accessed November 06, 2018. https://www.sentencingproject.org/criminal-justice-facts/.
Behrens, Angela, Christopher Uggen, and Jeff Manza. "Ballot Manipulation and the “Menace of Negro Domination”: Racial Threat and Felon Disenfranchisement in the United States, 1850–2002." American Journal of Sociology 109, no. 3 (November 2003): 559-605. Accessed November 5, 2018. doi:10.1086/378647.
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