FLORIDA'S FORMER FELONS : You can't vote here.

The historic presidential election of November 2000 is long over, and in the wake of September 11, few are inclined to reexamine yet again the contested electoral process in Florida that put George W. Bush in the White House. Still, one aspect of Bush's razor-thin plurality in Florida may bear further scrutiny, for it continues to affect a whole sector of American citizens there. I am referring to the fact that Florida maintains a practice long since repudiated in most industrialized democracies: it permanently disenfranchises almost every citizen convicted of a felony. No matter how long ago the offense occurred, in what state, how trivial, or even whether the individual has already paid his or her debt to society, in Florida it is almost impossible for an ex-felon to vote.

The Sunshine State is not alone in permanently disenfranchising ex-felons--fourteen other states do so--but Florida stands out for its sweeping refusal to grant ex-prisoners the right to vote. As a result, Human Rights Watch and the Sentencing Project, a Washington-based advocacy group for prisoners' rights, report that Florida is home to more disenfranchised voters than any other state in the union. In fact, on November 8, 2000, an estimated five hundred thousand felons in Florida who had completed their sentences and supervision requirements were not allowed to vote.

Whereas the U.S. Supreme Court has called voting "the right preservative of all other rights," disenfranchisement is in fact constitutional. Section 2 of the Fourteenth Amendment permits states to deny voting privileges to anyone found guilty of "rebellion or other crimes." This expansive language provided Southern states with a ready weapon for maintaining white supremacy after the Civil War. They designated as felonies all sorts of offenses that racial minorities were presumed more likely than whites to commit (such as "public rowdiness"), and legislated that crimes ordinarily associated with whites--even violent crimes such as murder or rape--were mere misdemeanors. As Nicholas Thompson detailed in the Washington Monthly (January/February 2001), for almost a century Mississippians convicted of homicide retained their right to vote, whereas anyone who married someone of another race suffered lifetime disenfranchisement.

Selective labeling of crimes as felonies continues to this day in Florida. State Senator Daryl Jones of Miami maintains that the state legislature still attempts to classify more and more crimes as felonies so it "can eliminate more people from the voter rolls." In 2000, Jones notes, the Republican-dominated legislature proposed a bill that would have increased the jail sentence from 365 to 366 days for anyone convicted of cashing two welfare checks after gaining employment. The purpose of adding one more day? The infraction is then a felony, and, says Jones, "you take one more person off the voter rolls."

Reg Brown, a staff attorney for Florida Governor Jeb Bush, defends the policy toward ex-offenders: "Voting is a privilege, not a right," he maintains, and, as such, the franchise should be withheld from anyone who violates the social compact. But Brown is wrong on one count: while voting is indeed a privilege, barring those who have completed their sentence is unnecessarily punitive and socially counterproductive. It is punitive because it furthers none of the traditional objectives of the criminal justice system. No one seriously argues, for example, that it deters crime, facilitates rehabilitation, or compensates victims. James Q. Wilson, one of the country's foremost criminologists, concedes that a "perpetual loss of the right to vote serves no practical or philosophic purpose." It is also counterproductive because, as Human Rights Watch has noted, it creates "a huge pool of political outcasts in America," one disproportionately composed of African-American males. (Demographers report that as many as 40 percent of black males are likely to be prohibited from voting during some or all of their adult lives.) While disenfranchised ex-convicts can petition for the restoration of their political rights in most states, it is almost always a lengthy, sometimes demeaning, and usually frustrating endeavor. But even among those states that are the least hospitable to clemency-seekers, Florida again stands out.

To regain the franchise in Florida, most ex-prisoners must complete a fourteen-page clemency questionnaire. Nicholas Thompson, in his Washington Monthly article, reports that the questionnaire asks everything from the irrelevant (their religious preferences, the cause of their parents' deaths), to the invasive (the names of children parented out of wedlock), to the potentially invidious (the names and purposes of any organizations to which they belong). If this paperwork does not prove sufficiently daunting, however, Florida requires in addition that those seeking re-enfranchisement typically appear before the governor and his cabinet--an intimidating requirement rarely demanded by any other state. Following that, petitioners must file with a state board that reviews the questionnaires and forwards its recommendations and investigative reports--which the subjects themselves are never allowed to see--to the governor, who by law is vested with "unfettered discretion to deny clemency at any time for any reason." Since only the most resolute complete this obstacle course, in a typical year, 1999, only one out of every three hundred eligible ex-convicts in Florida succeeded in regaining the vote. (One of Florida's rare "successes" in this regard is Charles Colson, the Nixon administration official convicted in the Watergate scandal. He was pardoned by Governor Jeb Bush in 2000.)

Why such zeal to keep former convicts from voting in Florida? Officials invoke high-sounding rationales--disenfranchisement laws discourage crime and maintain "the purity of the electoral process"--yet the major impetus is strictly political: disenfranchisement benefits Republicans. According to the most comprehensive studies of ex-felon voting patterns--which control for income, race, geography, turnout, and other relevant factors--re-enfranchised former prisoners vote disproportionately for Democratic candidates.

That fact was not lost on top-ranking Florida officials in the months preceding the 2000 presidential election. They worried that even the relatively few ex-convicts who had regained their voting privileges might jeopardize George W. Bush's chances of capturing the state's all-important electoral votes. So they set out to purge from the voting rosters all names of former prisoners, including those who had already been re-enfranchised. In the February 5, 2001, Nation, Gregory Palast, an investigative reporter for the British Observer, described this "purge" as "so quiet, subtle, and intricate, that if not for Bush's 500-vote eyelash margin of victory...the chance of [its] discovery would have been vanishingly small." Two high-ranking Florida officials were instrumental in this successful purge: Secretary of State Katherine Harris (who served as George W. Bush's Florida campaign-chair), and Governor Jeb Bush.

In a another Nation article (April 30, 2001), John Lantigua of the Miami Herald chronicled several other aspects of this story. In November 1998, Katherine Harris, complying with a directive issued by the state legislature, paid a private company, Database Technologies, Inc. (DBT), $4 million to expunge from the state's voting rolls duplicate registrations, people who had died, and felons. In time, DBT (since merged with ChoicePoint of Atlanta) produced a "scrub list" of Florida residents to be stricken from the voter rolls. According to Palast, the list was wildly inaccurate. For example, among those slated for purging were individuals whose conviction dates were cited as sometime in the future. And forced to rely on the state's byzantine record keeping, DBT itself voiced concern that names would be erroneously crossed off. It had intended to strike anyone whose name, date of birth, and/or Social Security number matched those of a known felon. But there was a serious problem: Florida had a record of some but not all Social Security numbers. Not to worry, DBT was told. Simply eliminate anyone whose vital statistics closely match those of a known felon. Accordingly, the firm focused on people who might be "possible felons."

Both Palast and Lantigua quote ChoicePoint directors who said they assumed the list of the fifty-eight thousand registered voters who were possible felons would be "verified" by county election officials. But that ascribed to already overburdened county election officials prodigious resources that were not, in fact, available to them. As a result, Palast notes, state and county election examiners later concluded at least 15 percent of those cited as felons had been wrongly identified and excluded.

In another instance, Harris's office, using a list provided by DBT, ordered counties to strike from eligibility lists more than three thousand former inmates who had moved to Florida following the restoration of their voting rights by another state. Palast asserts that Harris was well aware that purging these people was unconstitutional. Only two years before, Florida's Court of Appeals had unanimously ruled, in a well-publicized case, that election officials could not require a Florida resident, whose voting rights had earlier been restored by Connecticut after he had completed his prison sentence in that state, "to ask [Florida] to restore his civil rights. They were never lost here." Felons who have regained their vote in another state, the court said, "arrive as any other citizen, with full rights of citizenship" guaranteed by the Constitution's full faith and credit clause.

Florida's county election officials had discussed the decision of the Court of Appeals at a meeting in the summer of 1998. Thus, Palast recounts, Chuck Smith, a systems' administrator with Hillsborough County, was initially surprised when Harris's office directed local officials to expunge the name of every out-of-state felon identified by DBT. As a result, the Hillsborough office refused to comply until it received written instructions. Finally, in a letter dated September 18, 2000, the Governor's Office of Executive Clemency ordered the county to instruct former inmates who were attempting to register, and explicitly those who had been re-enfranchised by another state, that they were ineligible to vote until Florida itself restored their political rights.

How many former inmates were improperly forbidden to register? Jeffrey Manza, a criminologist at Northwestern University, estimates that "people from other states who've arrived in Florida with a felony conviction in their past number clearly over fifty thousand and likely over a hundred thousand." Using these figures, he calculates that 80 percent arrived with their voting rights intact.

The Florida secretary of state's purge had the greatest effect on African-American voters. According to David Bositis, senior research associate at the Washington, D.C.-based Joint Center for Political and Economic Studies, African Americans account for 46 percent of the ex-felons improperly disenfranchised in Florida. In Hillsborough County alone, where blacks make up but 15 percent of the voting population, 54 percent of those targeted by the "scrub" were African Americans. In Miami-Dade, where blacks compose 20 percent of the population, fully 66 percent (3,794) of those stricken were African Americans.

Relying on past voting records, reporter Lantigua has calculated that, had they been eligible, roughly 10 percent of Florida's former prisoners would have cast ballots in the November 2000 election. Using even more conservative figures, he estimates that twenty thousand former inmates would have voted, and that based on race and economic factors, 75 percent of them would have voted for Al Gore. George W. Bush won the popular vote in the state by a mere 537 ballots.

In the aftermath of the 2000 presidential election, the bipartisan National Commission on Federal Election Reform, under the leadership of former presidents Jimmy Carter and Gerald Ford, recommended, among other proposals, that states re-enfranchise former prisoners. Only Connecticut and New Mexico have managed to do so. Last year, Florida's Republican-dominated legislature passed a package of ballot reforms meant to relieve the state of its embarrassment over the 2000 election. But it tabled a bill that would have specifically expanded the voting rights of former prisoners. The reasons seem to be strictly political. What was lost in the process was something elusive but critical: as long as some members of the community, whether in Florida or elsewhere, are consigned to second-class status, the long-term health of the entire commonwealth suffers.

Elizabeth Hull is an associate professor of political science at Rutgers University in Newark, New Jersey. She has written extensively on the constitutional rights of noncitizens, racial minorities, and prisoners.