Best Practices For Issue Advocacy Using Ballot Measure Campaigns: Amendment 4 Lessons Learned, Florida Voting Rights Controversy
Critical policies are often passed through ballot initiatives rather than legislation. For this reason, effectively aligning your approach with the goal is important. The controversy surrounding Amendment 4 to the Florida Constitution is unnecessary and warrants a discussion on best practices for issue advocacy using ballot measure campaigns. The lessons learned from Florida provide valuable insights. Let’s call a spade a spade: Amendment 4 to the Florida Constitution, not Florida lawmakers, undermines felons’ voting rights.
Amendment 4 Lessons Learned, Florida Voting Rights Controversy
The American Civil Liberties Union (ACLU) of Florida and other advocacy groups filed a federal lawsuit on June 28 challenging a state law the ACLU says, “Creates wealth-based hurdles to voting and undermines Floridians’ overwhelming support for Amendment 4.” Additionally, the June 28 ACLU press release states:
“The new law punishes people based on their wealth by forcing those convicted of felonies to repay all fines, fees, and other monetary penalties associated with their convictions, or face disenfranchisement. People often owe significant debt that they simply cannot pay after they complete their sentence — debt that the new law seeks to raise as a barrier to Amendment 4’s restoration of the right to vote.”
To be Clear
I’m a former probation officer, public policy analyst and government affairs analyst in Florida. I can attest “the new law” does not raise a barrier to Amendment 4’s restoration of voting rights; Amendment 4 is the culprit. Meaning, Amendment 4 as written and certified by judicial review is a barrier to the restoration of felons’ voting rights. I’ll explain further after clarifying key concepts and terms.
What is Amendment 4?
During the November 2018-midterm elections, Floridian’s voted to automatically restore voting rights to the states’ (approximately) 1.5 million felons. The problem, from an issue advocacy standpoint, is the exact language of the Amendment 4 ballot summary reads:
“This amendment restores the voting rights of Floridians with felony convictions after they complete all terms of their sentence including parole or probation. The amendment would not apply to those convicted of murder or sexual offenses, who would continue to be permanently barred from voting unless the Governor and Cabinet vote to restore their voting rights on a case by case basis.”
Senate Bill 7066: The Controversy
Shortly after Floridian’s voted to restore felons’ voting rights, lawmakers passed legislation, which requires felons to pay outstanding fines, fees and court costs before voting rights are restored. Needless to say, this move by Florida lawmakers is causing outrage among Amendment 4 supporters. Their problem, so the story goes, is that requiring former felons to pay outstanding costs prior to restoring voting rights undermines the will of the people (because the people passed Amendment 4).
Amendment 4, Not Florida Lawmakers, Undermines Felons’ Voting Rights
First, as previously mentioned, the Amendment 4 ballot summary reads:
“This amendment restores the voting rights of Floridians with felony convictions after they complete all terms of their sentence including parole or probation. The amendment would not apply to those convicted of murder or sexual offenses, who would continue to be permanently barred from voting unless the Governor and Cabinet vote to restore their voting rights on a case by case basis.”
Second, the ACLU and advocacy organizations who filed the lawsuit dropped the ball. Why? Because the fines, fees and costs that prompted the lawsuit are conditions of probation. Meaning, when voters passed Amendment 4, they agreed felons must pay all associated fees (as they relate to probation) because fines, fees and court costs, to include restitution are TERMS of probation!
- Not only will prosecutors, probation officers, judges and defense attorneys confirm this, the information is publicly available. Below you will find relevant portions of the 2018 Florida Statutes (I copied and pasted directly from the State’s website. I also include a link).
Third, in a recent statement Kirk Bailey, Political Director (ACLU) writes, the law “Extends far beyond the plain language of Amendment 4 or what any reasonable person would conclude the voters intended when they passed Amendment 4; and therefore, is unconstitutional. It is well established that the State may only take action to implement an initiative approved by voters that supplements, protects, or furthers the purposes of that initiative, in this case the availability of voting rights; and may not modify the right in such a fashion that it alters or frustrates the intent of Floridians.” Notably:
- The law does not extend beyond the plain language of Amendment 4;
- Reasonable people inform themselves prior to making conclusions;
- Yes, it is well established that the State may only take action to implement an initiative approved by voters that supplements, protects, or furthers the purpose of the initiative. However…
Executive Branch Officials in Florida Speak Out
However, we know county elections supervisors and other executive branch officials asked lawmakers for guidance interpreting the amendment. For example, the Florida Department of Corrections press secretary wrote in an email that the Department is currently “reviewing its protocols and policies and will work with the appropriate agencies … to ensure compliance with Florida law as it is implemented.” Similarly, according to a Florida Department of Law Enforcement (DLE) spokesperson, Amendment 4 “requires legislative implementation” before the DLE is able to make any changes to existing processes. Finally, state officials have insisted that legislators clarify how supervisors of elections should assess voter eligibility and sentence completion; and, according to the senior program director for the Florida State University Center for the Advancement of Human Rights, “Decisions like these need to be made […] It doesn’t need to take an inordinate amount of time, but clearly there are a number of moving parts here.”
Learn the Systems and Processes of Government
As a public administration professional, I know policies don’t implement themselves. Moreover, I’m a public affairs professional with a Masters degree in public administration. Meaning, I’m concerned with the actions taken by government and the impact the actions taken by government have on the realities people face every day. So, I’m baffled advocacy organizations who share my concerns seem to lack an understanding of the systems and processes of government. As a reminder, an executive branch of government implements laws passed by a legislative branch of government.
The 2018 Florida Statutes
Title XLVII CRIMINAL PROCEDURE AND CORRECTIONS — Chapter 948 PROBATION AND COMMUNITY CONTROL
“Probation” means a form of community supervision requiring specified contacts with probation officers and other terms and conditions as provided in s. 948.03.”
(g) Effective July 1, 1994, and applicable for offenses committed on or after that date, make payment of the debt due and owing to a county or municipal detention facility under s. 951.032 for medical care, treatment, hospitalization, or transportation received by the felony probationer while in that detention facility. The court, in determining whether to order such repayment and the amount of the repayment, shall consider the amount of the debt, whether there was any fault of the institution for the medical expenses incurred, the financial resources of the felony probationer, the present and potential future financial needs and earning ability of the probationer, and dependents, and other appropriate factors.
(i) Make payment of the debt due and owing to the state under s. 960.17, subject to modification based on change of circumstances.
(j) Pay any application fee assessed under s. 27.52(1)(b) and attorney’s fees and costs assessed under s. 938.29, subject to modification based on change of circumstances.
(2) The enumeration of specific kinds of terms and conditions does not prevent the court from adding thereto such other or others as it considers proper. However, the sentencing court may only impose a condition of supervision allowing an offender convicted of s. 794.011, s. 800.04, s. 827.071, s. 847.0135(5), or s. 847.0145 to reside in another state if the order stipulates that it is contingent upon the approval of the receiving state interstate compact authority. The court may rescind or modify at any time the terms and conditions theretofore imposed by it upon the probationer. However, if the court withholds adjudication of guilt or imposes a period of incarceration as a condition of probation, the period may not exceed 364 days, and incarceration shall be restricted to either a county facility, or a probation and restitution center under the jurisdiction of the Department of Corrections.
948.032 Condition of probation;
restitution.—If a defendant is placed on probation, any restitution ordered under s. 775.089 shall be a condition of the probation. The court may revoke probation if the defendant fails to comply with the order. In determining whether to revoke probation, the court shall consider the defendant’s employment status, earning ability, and financial resources; the willfulness of the defendant’s failure to pay; and any other special circumstances that may have a bearing on the defendant’s ability to pay.
948.039 Special terms and conditions of probation or community control imposed by court order.—
The court may determine any special terms and conditions of probation or community control. The terms and conditions should be reasonably related to the circumstances of the offense committed and appropriate for the offender. The court shall impose the special terms and conditions by oral pronouncement at sentencing and include the terms and conditions in the written sentencing order.
(2) Pay not more than $1 per month during the term of probation or community control to a nonprofit organization established for the sole purpose of supplementing the rehabilitative efforts of the Department of Corrections.
948.04 Period of probation; duty of probationer; early termination.—
(3) If the probationer has performed satisfactorily, has not been found in violation of any terms or conditions of supervision, and has met all financial sanctions imposed by the court, including, but not limited to, fines, court costs, and restitution, the Department of Corrections may recommend early termination of probation to the court at any time before the scheduled termination date.
(5) In any hearing in which the failure of a probationer or offender in community control to pay restitution or the cost of supervision as provided in s. 948.09, as directed, is established by the state, if the probationer or offender asserts his or her inability to pay restitution or the cost of supervision, it is incumbent upon the probationer or offender to prove by clear and convincing evidence that he or she does not have the present resources available to pay restitution or the cost of supervision despite sufficient bona fide efforts legally to acquire the resources to do so. If the probationer or offender cannot pay restitution or the cost of supervision despite sufficient bona fide efforts, the court shall consider alternate measures of punishment other than imprisonment. Only if alternate measures are not adequate to meet the state’s interests in punishment and deterrence may the court imprison a probationer or offender in community control who has demonstrated sufficient bona fide efforts to pay restitution or the cost of supervision.
948.09 Payment for cost of supervision and other monetary obligations.—
(1)(a)1. Any person ordered by the court, the Department of Corrections, or the Florida Commission on Offender Review to be placed under supervision under this chapter, chapter 944, chapter 945, chapter 947, or chapter 958, or in a pretrial intervention program, must, as a condition of any placement, pay the department a total sum of money equal to the total month or portion of a month of supervision times the court-ordered amount, but not to exceed the actual per diem cost of the supervision. The department shall adopt rules by which an offender who pays in full and in advance of regular termination of supervision may receive a reduction in the amount due. The rules shall incorporate provisions by which the offender’s ability to pay is linked to an established written payment plan. Funds collected from felony offenders may be used to offset costs of the Department of Corrections associated with community supervision programs, subject to appropriation by the Legislature.
2. In addition to any other contribution or surcharge imposed by this section, each felony offender assessed under this paragraph shall pay a $2-per-month surcharge to the department. The surcharge shall be deemed to be paid only after the full amount of any monthly payment required by the established written payment plan has been collected by the department. These funds shall be used by the department to pay for correctional probation officers’ training and equipment, including radios, and firearms training, firearms, and attendant equipment necessary to train and equip officers who choose to carry a concealed firearm while on duty. This subparagraph does not limit the department’s authority to determine who shall be authorized to carry a concealed firearm while on duty, or limit the right of a correctional probation officer to carry a personal firearm approved by the
(6) The department shall establish a payment plan for all costs ordered by the courts for collection by the department and a priority order for payments, except that victim restitution payments authorized under s. 948.03(1)(f) take precedence over all other court-ordered payments. The department is not required to disburse cumulative amounts of less than $10 to individual payees established on this payment plan.
It is obvious advocacy organizations didn’t bother to research relevant statutes or consult key stakeholders early on. So, here we are.
Best Practices For Issue Advocacy Using Ballot Measure Campaigns
- Make sure at the outset the ballot language aligns with your goals;
- Consult all relevant stakeholders and assure their seats at the table early in the process;
- Prioritize learning the systems and processes of government and the nuances of the issue you are advocating; and
- Do your research, leave no stone unturned.
To Be Clear
I think it is ridiculous felons cannot vote. I’m an ally of the re-entry community. Additionally, I’m aware of the horrific history of racism and voter suppression in Florida. But the ball was dropped in this case. Meaning, the advocacy groups upset about SB 7066 must acknowledge their lack of preparedness. They must do so to avoid similar situations in the future. This entire ordeal is unacceptable.
About Olivia P. Walker and O.W.B Public Affairs
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