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A Courthouse Win Could Lead To Ballot Defeat

Rick Scott
Fla. Gov. Rick Scott. Photo by Sara K. Brockmann for the state of Florida

Fixing a problem that may be otherwise self-correcting is an invitation to unintended consequences.

For an object lesson, consider Florida. I recently wrote about the news that Florida voters will have a chance this fall to fix the state’s unfair system of disenfranchising those who have fully served their sentences for felony convictions. Unfortunately, a federal court judge took matters into his own hands, and in so doing he may have created problems for the ballot initiative’s supporters.

Florida’s current system bars those with felony convictions from voting unless they secure executive clemency. The clemency board faces a huge backlog – currently more than 10,000 cases, the Tampa Bay Times reported – and rarely rules in the applicant’s favor in the cases it does hear. If a proposed constitutional amendment appearing on this November’s ballot passes, however, the clemency board’s failings will largely become moot, since most people who have served all parts of their sentences will automatically regain their voting rights without having to appear before the board at all.

In the meantime, however, U.S. District Court Judge Mark Walker of the Northern District of Florida has declared the existing system unconstitutional. Nine individuals who had been disenfranchised by Florida’s system brought a lawsuit against the state, and Walker – an Obama appointee – decided to use the case to excoriate the state’s Republican governor, as well as the system he has significantly shaped, which Walker characterized as a “scheme.”

In his ruling, Walker wrote: “A person convicted of a crime may have long ago exited the prison cell and completed probation. Her voting rights, however, remain locked in a dark crypt. Only the state has the key—but the state has swallowed it. Only when the state has digested and passed that key in the unforeseeable future—maybe in five years, maybe in 50—along with the possibility of some virus-laden stew of viewpoint discrimination and partisan, religious, or racial bias, does the state in an ‘act of mercy,’ unlock the former felon’s voting rights from its hiding place.”

As those who have read my earlier writing on the subject know, I agree with Walker’s overall evaluation of the system’s inherent unfairness. But I find his approach to dismantling it troubling. It is entirely appropriate for courts to intervene if the state is, in fact, acting in a discriminatory manner based on race, belief or affiliation; it is another for a federal judge to overturn a state’s exercise of its own prerogatives based on his speculation of what it might possibly do in the future.

Unfortunately for those hoping to change Florida’s existing system, Walker may have done their cause more harm than good. For the time being, it puts those affected by Florida’s disenfranchisement law in legal limbo, as Gov. Rick Scott’s office has indicated it will continue to fight the issue in the courts. Meanwhile the high-profile ruling and its aftermath could well rally opposition to the ballot initiative, which as a constitutional amendment needs 60 percent support in order to pass. By taking the position that the existing system has been used by Scott for his own party’s political benefit, Walker may push some of Scott’s supporters toward opposing an amendment they might otherwise back. He also creates an opportunity for an appellate court or the U.S. Supreme Court to define, more narrowly than he does, a state’s power to restrict ex-convicts’ voting rights.

And while Walker’s ruling may energize the opposition, it also runs the risk of lulling the amendment’s supporters into complacency. If voters believe the problem has been solved, they may prove less likely support the ballot initiative with time and money in the present, and less likely to show up to vote for the amendment in November. In this sense, the ruling’s timing probably could not have been worse.

I, and many other of the proposed amendment’s supporters, agree that Florida’s system for restoring civil rights to those convicted of a felony is currently pointless and unfair. But I would have preferred to let the state’s process play out at the ballot box.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s recently updated book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us,” and Chapter 4, “The Family Business.” Larry was also among the authors of the firm’s book The High Achiever’s Guide To Wealth.

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