Free But No Liberty: How Florida Contravenes the Voting Rights Act by Preventing Persons Previously Convicted of Felonies from Voting

National Lawyer's Guild Review, Vol. 69, Number 1, Spring 2012

68 Pages Posted: 31 Jul 2012  

Zach Zarnow

affiliation not provided to SSRN

Caitlin Shay

affiliation not provided to SSRN

Date Written: 2012

Abstract

The United States has a long history of denying minorities their right to vote ― of practicing racially-motivated disenfranchisement. In early 2011, Florida Governor Rick Scott continued this tradition by issuing an executive order permanently denying convicted felons their right to vote, unless they petition for executive clemency after a five-year waiting period following the completion of their sentences. These new procedures are a step backward for Florida to previous policies that disproportionately disenfranchised African-Americans. Actions like Governor Scott’s demonstrate why the Voting Rights Act (VRA) of 1965, most recently re-authorized in 2006, is still needed to prevent racially discriminatory voting practices.

This article argues that Florida’s executive re-enfranchisement policies contravene the Voting Rights Act and should be nullified. A review of felon disenfranchisement in the United States and Florida, the VRA’s basic mechanics, and Florida’s recent challenge to the Act’s constitutionality will help make this clear. The VRA continues to be a constitutional exercise of congressional power that requires Florida to seek pre-clearance for changes to felon disenfranchisement procedures under Section 5 of the Act, and would likely forbid the proposed changes under either a purposeful discrimination or disparate impact analysis under Section 2 of the Act. The article concludes that Florida must submit its proposed changes for pre-clearance, and that if it fails to do so, the U.S. Justice Department should act to prevent the implementation of arguably the harshest felon disenfranchisement procedures in the nation.

Keywords: access to justice, felon disenfranchisement, voting rights, Florida, criminal justice, constitutional law

JEL Classification: K10, K14, K40, D63

Suggested Citation

Zarnow, Zach and Shay, Caitlin, Free But No Liberty: How Florida Contravenes the Voting Rights Act by Preventing Persons Previously Convicted of Felonies from Voting (2012). National Lawyer's Guild Review, Vol. 69, Number 1, Spring 2012. Available at SSRN: https://ssrn.com/abstract=2120738

Zach Zarnow (Contact Author)

affiliation not provided to SSRN ( email )

Caitlin Shay

affiliation not provided to SSRN

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