I. Introduction
ANGEL SANCHEZ & ANNEKE DUNBAR-GRONKE—During the November 2018 elections, Floridians overwhelmingly voted to pass Amendment 4, which historically repealed the 150-year-old Jim-Crow era practice of permanently stripping voting rights from those with felony convictions. The Amendment’s passage ensured that all individuals with felony convictions in Florida, except those convicted of murder or a felony sexual offense, would automatically have their voting eligibility restored “upon completion of all terms of sentence including parole or probation.” Receiving overwhelming bipartisan support, Amendment 4 passed with more than sixty-four percent (64%) of the vote in a state where the elected governor could not garner more than fifty percent (50%) of the vote.
The Amendment went into effect on January 8, 2019. In response, thousands of Returning Citizens (i.e., individuals who have served their time and have since returned to their communities) began registering to vote—myself included. When I went to register, I had to simply “affirm that I am not a convicted felon, or if I am, my right to vote has been restored.” Having no criminal sentence remaining, I affirmed that my right to vote had been restored based on Amendment 4. Soon after, I received a voting card in what was one of the most heartening moments of my life. I had my right to vote stripped from me at the young age of fifteen, before I was even old enough to vote. To get this right back after twenty-one years was very special, to say the least.
For decades, millions of Floridians like myself were disenfranchised for life; yet, just months after Floridians passed Amendment 4 with overwhelming support, lawmakers began proposing legislation that not only undermines Amendment 4’s purpose, but also targets the poor (SB 7086 and HB 7089). Specifically, they are seeking to define the Amendment’s language “all terms of sentence” in a way that would exclude the greatest number of people by imposing the requirement that all financial obligations must be satisfied before an individual’s voting rights can be restored.
Even after the criminal sentence ends and the financial obligations are converted to civil liens, the Legislature wants civil financial obligations to continue barring people from voting. This means that restored voting rights will be only for those who can afford it. In other words, two individuals who had equal sentences and fines will have unequal access to vote if one can pay and one cannot. Also, individuals who might be able to have their financial obligations waived by the court may still err on the side of caution and not register to vote if they are uncertain about the status of their financial obligations. For example, I have a friend who told me he remembers having his court costs waived, but has no record to prove it, so he is not registering to vote until he can be certain that his costs were actually waived. In fact, as the Miami Herald reported, Florida does not even have a way of tracking restitution. Therefore, the Legislature is moving forward with laws that will not only disenfranchise the poor, but also create a chilling effect that will discourage many eligible voters from voting if they are uncertain about the status of their financial obligations.
II. Restricting Amendment 4 is Unconstitutional
The Florida Supreme Court has been clear that citizen-initiated, self-executing constitutional provisions are given constitutional protection to prevent the Legislature from nullifying the will of the voters and amending the Constitution through legislative fiat. See Browning v. Fla. Hometown Democracy, Inc., PAC, 29 So. 3d 1053, 1064 (Fla. 2010). Constitutional provisions—especially those enacted through citizen initiatives—are presumed to be self-executing. The legislature may pass legislation that would affect a self-executing constitutional provision only if: (1) the law supplements, protects, or furthers the availability of the constitutionally conferred right, and (2) the law does not modify the right in such a fashion that it alters or frustrates the intent of the framers and the people. Id.
A. Self-Executing
The first part of the analysis is establishing that Amendment 4 is self-executing. This is both the most important and the easiest to prove because the provision is currently being executed without the aid of additional legislation. Since January 8, 2019, people (including myself) have been registering to vote under the current regime. Before Amendment 4, I would normally receive a denial saying that I was not eligible based on publicly available criminal record. Yet now, despite having the same criminal record, I have been registered to vote pursuant to the passage of Amendment 4. Thus, under the current regime, the right conferred by Amendment 4 is being executed and implemented without the aid of any new legislation.
Further, the opinion of the Florida Supreme Court and comments made by the Republican leaders demonstrate the self-executing nature of Amendment 4. The court issued an advisory opinion approving Amendment 4, saying that “the title and summary would reasonably lead voters to understand that the chief purpose of the amendment is to automatically restore voting rights to felony offenders . . . .” Advisory Opinion to the Attorney General Re: Voting Restoration Amendment, 215 So.3d. 1202, 1208 (Fla. 2017) (emphasis added). The Florida Senate President Bill Galvano believes that Amendment 4 is self-executing and does not need specific legislative action, and the Department of State spokesperson stated that “there has been no delay in implementation.” Moreover, the Florida Supreme Court has previously stated that constitutional provisions are presumed self-executing to avoid nullifying the will of the voters. Gray v. Bryant, 125 So. 2d 846, 851–52 (Fla. 1960).
B. Restricting Amendment 4
Having established that Amendment 4 is self-executing, it follows that the Legislature is constitutionally restricted on the type of laws it can pass that would affect the Amendment. The Legislature is only permitted to enact laws that (1) promote the right conferred by Amendment 4 and (2) do not frustrate the will of the voters. See Browning, 29 So. 3d at 1064. Failing on either count renders the legislation constitutionally infirm.
The right conferred by Amendment 4 is the right to have voting eligibility automatically restored upon completion of a sentence, with only very specific and narrow—not general or broad—qualifications and exclusions. Therefore, the constitutional question is whether the law in question promotes or restricts the right conferred: voting restoration. In this case, the Legislature is attempting to restrict when a person becomes eligible for voting restoration beyond the scope of Amendment 4’s original implementation. For example, individuals who have served all terms of their criminal sentence will be made ineligible to vote by the proposed legislation if they have any outstanding financial obligations—even if those financial obligations are no longer part of the criminal sentence.
While the House and Senate versions differ slightly on some of these points, the ongoing debates and negotiations are, at bottom, about how restrictive the proposed legislation is going to be. In other words, neither proposed legislation seeks to expand the current implementation of Amendment 4. Therefore, it is undisputed that both proposed bills will serve and function as a restriction of the right conferred, rather than a promotion of it. Thus, they are constitutionally prohibited. This is especially true when the legislation will render fewer people eligible to vote and strip others of their already restored rights. It is indeed a cruel joke for citizens to have their voting rights restored under the current implementation of Amendment 4 and then see those rights stripped away by a Legislature bent on adopting stricter definitions than what is currently being implemented. Beyond cruel, this is unconstitutional.
Sponsors of the legislation argue that Amendment 4 is so ambiguous that legislative action is needed to clarify the ambiguity. They argue that the proposed definitions are based on the text of the Amendment and on the comments made by the Amendment’s lawyer in front of the Florida Supreme Court. But these arguments are insufficient. First, there is no legitimate problem of ambiguity that requires legislation. Amendment 4 is being implemented and individuals are accessing, securing, and enjoying the right created by Amendment 4 without the aid of new legislation, which proves that there is no ambiguity that needs to be clarified. Even if ambiguity does exist, it is evidently not preventing implementation and, therefore, not the type that requires legislative action.
Second, even if there were ambiguity or reasonable disagreements about the language of Amendment 4, any new legislation must resolve such ambiguity in favor of promoting the right created by Amendment 4, not restricting it. Regardless of which debatable definition the Legislature likes, the Legislature is constitutionally limited to passing legislation that defines the restoration of voting rights most generously. In other words, when in doubt, the Legislature must err on the side of the definition that promotes the right, not restricts it.
The proposed legislation, however, applies the most restrictive definitions and would restrict people who are currently eligible to vote under the current implementation of Amendment 4. Therefore, because the proposed bills would restrict (and even strip) individuals of the right conferred under Amendment 4, such legislation would be unconstitutional. To allow the Legislature—the very body the citizens bypassed in approving Amendment 4—to enact laws that restrict Amendment 4, rather than promote it, would be to permit the Legislature to amend the Constitution through legislative fiat, which is contrary to the checks and balances of a constitutional democracy. See Browning, 29 So. 3d 1053 at 1064.
The role of the Legislature should be to provide oversight over the Secretary of State to ensure that the right conferred is being accessed and enjoyed by the people of Florida. If the Secretary fails to provide this right, or begins to restrict this right, the Legislature’s proper course of action is to pass legislation that promotes and protects the right being restricted. In doing so, the Legislature will be doing exactly what the courts have said is within the Legislature’s constitutional power: passing a law that only promotes the right, not restricts it. In this case, the Legislature is seeking to do the opposite and, in doing so, is acting outside of its constitutional authority.
C. Frustrating the Will of the Voters
In addition to unconstitutionally restricting the right conferred by Amendment 4, Florida’s Legislature is also attempting to frustrate the will of the voters. At the heart of this issue is voter intent. Determining intent begins by looking at the plain text of the constitution. See State ex rel West v. Gray, 74 So.2d 114, 116 (Fla. 1954). However, if certain words in the text, even if rightly understood, admit two or more agreeable and commonly used meanings, the intent of their meaning can be ascertained from the extrinsic evidence that best harmonizes the literal definition of the words with the purpose and object of the constitutional provision. Id.
The following is the plain language of Amendment 4’s constitutional provision:
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 primary language in contention is the meaning of “completion of all terms of sentence including parole or probation.” Here, there are two areas of debate. The first is whether the plain meaning of the word “all” should encompass every imaginable term that may be related or attached to a criminal sentence—including restitution, fines, fees, and court costs—or whether it should have a limited meaning and be read as all of a specific category or type of sentencing term. For example, should all be limited to all of the terms involving custody and supervision and nothing more.
The plain text indicates that all should be read in the limited sense. Because the subsequent words “including parole and probation” are included, the word all cannot be read in the universal sense. If all is read universally, it would already include “parole and probation” and render the addition of those words superfluous. As such, the plain meaning of the word all in this context can only be read as a having a limited meaning. To this end, all must be read to mean all forms of incarceration and custody, making the words “including parole and probation” sensible. It is important to note that financial obligations are nowhere mentioned in the plain language of Amendment 4.
The other part of the debate is over the meaning of “sentence.” The Legislature wants to inappropriately alter the definition of “sentence” to include certain financial obligations as part of a criminal sentence even after those financial obligations are converted to civil liens. A sentence is a legal term that only applies to criminal cases. Civil proceedings are distinct from criminal law. In civil cases, people are found liable, instead of guilty, and judgments are entered, not sentences. Therefore, the word “sentence” in Amendment 4 can only refer to a criminal sentence. Thus, when financial obligations which derived from a criminal sentence are converted to civil liens, Amendment 4’s completion-of-the-criminal-sentence has been satisfied and restoration of voting rights must follow.
The sponsors of the proposed legislation argue that extrinsic evidence indicates that voters understood financial obligations to be part of the sentence. The problem with this argument, however, is that the extrinsic evidence they rely on is isolated, not dispositive, and outweighed by the extrinsic evidence that supports the opposite conclusion. They first rely on the comments made by an Amendment 4 lawyer during oral arguments in front of the Florida Supreme Court. These comments were made when the Court was conducting a limited review of Amendment 4. See Advisory Opinion Advisory Opinion to the Attorney General Re: Voting Restoration Amendment, 215 So. 3d. 1202 (Fla. 2017). During the lawyer’s presentation, he was asked whether restitution, fines, and costs would be included as part of the sentence. Although this was not pertinent to the Court’s limited review, the lawyer responded that everything within the four corners of the sentence would have to be satisfied before restoration of voting rights. Ultimately, the Court’s final opinion did not reference the lawyer’s comments at all, rendering the lawyer’s comments immaterial to the decision. Instead, the Court stated that Amendment 4 satisfied its review and was clearly self-executing in creating an automatic right to voter restoration. Id.
The sponsors also rely on language found on the Florida Rights Restoration Coalition (“FRRC”) website, stating that it believed the completion of all terms of sentence included any portion of incarceration, probation, parole, and financial obligations. However, the political director of FRRC, Neil Volz, clarified the organization’s position, responding that while they may not have been clear originally, they believed that only those financial obligations directly imposed by the sentencing judge involving restitution may be included in the definition of “sentence.” Therefore, when considered in light of the other evidence, the two pieces of extrinsic evidence that the sponsors rely upon are isolated and do not support using civil liens to keep people disenfranchised.
On the other hand, Florida’s clemency rules, which Amendment 4 replaced with respect to voting restoration, provides a definition that has been historically used for a completion-of-sentence that does not include financial obligations. On balance, historical practice holds more weight than two isolated incidents. And even if the two isolated incidents were taken at face value, neither of them indicates that civil liens would be considered part of a criminal sentence. Therefore, at best, only financial obligations not converted to civil liens (or waived by the sentencing court) should be considered part of the sentence. For the Legislature to say otherwise would be unconstitutional.
III. Conclusion
The constitutional constraints imposed on the Florida Legislature when dealing with a self-executing constitutional provision prohibits it from passing laws that restrict the right conferred by Amendment 4. Because the legislation being proposed does restrict the right to voting restoration and is indeed stricter than the current process, such legislation is unconstitutional. The proposed bills fly in the face of the plain text of Amendment 4, which only adds “parole and probation” to completion of sentence—not financial obligations. The historical practice and definition of the clemency rules, which Amendment 4 replaced, show that completion of sentence never included fees, fines, or court costs. Moreover, no extrinsic evidence—not even the evidence relied upon by those politicians supporting the legislation—supports the idea that the restoration of voting rights should be restricted for civil liens even after the criminal sentence is completed. Therefore, the legislation being put forward by Florida’s law makers seeks to undermine the will of the people and unconstitutionally abridge the right created through Amendment 4.
Anneke Dunbar-Gronke is a third-year law student at Harvard Law School and member of the Harvard Law Review.
