Lifetime felony disenfranchisement in Florida, Texas, and Iowa: symbolic and instrumental law.

• Author: Sennott, Christie

Confused Constitutional History, Racism, and Southern Comfort

THE DISTINCTION BETWEEN INSTRUMENTAL AND SYMBOLIC LAW HAS BECOME ROUTINE for social scientists (Gusfield, 1963; Edelman, 1964). The former is actually intended to control behavior, while the latter is more concerned with using law to make a public statement. If ever there was legislation that seems designed to control human behavior, it is lifetime felony disenfranchisement (LFD). It is well known that LFD laws have much of their origins in American racism and the Civil War. According to Chin (2004: 261), after the Civil War Congress "required the former Confederate states to adopt constitutions allowing African Americans to vote as a condition of ending military occupation," but this prohibition on racial discrimination was not honored by many states. In the final analysis, the Constitution gives authority for determining elector qualifications to the individual state governments. Some state laws disenfranchise convicted felons only while they are in prison, and some extend it to their time on probation or parole; in others, lifetime disenfranchisement is only activated by a second felony conviction, while in Florida and Iowa, this occurs on the first conviction. No other democratic nation imprisons as many of its people because of a felony conviction. Between 1890 and 1910, five states in the Deep South (Alabama, Louisiana, Mississippi, South Carolina, and Virginia) "tailored their criminal disenfranchisement laws to increase their effect on black citizens (Clegg, 200 : 170). Shapiro (1997: 2) observes that there is "a history in this country of intentional use of such laws to deprive blacks of the vote. Indeed, it's a history that should tell us something about the distinct injustice of permanently disenfranchising ex-felons, whatever their race." Although racism is no longer legal, the criminal disenfranchisement laws passed with discriminatory intent more than 150 years ago continue to achieve their racist goals (Majuri, n.d.). African Americans are still disenfranchised at a rate far in excess of whites. Chin (2004: 264) notes that among "drug offenders, the fastest growing portion of the felon population over the past thirty years, there is substantial evidence of prosecution and conviction of African-Americans disproportionate to their rate of offending." Tonry (1995) concurs that the skyrocketing black prison population began in the 1980s during the inception of the war on drugs.

Although the incidence of crimes committed by blacks has not increased, the number of black prisoners has tripled since 1980. Approximately 13% of black males have lost their right to vote due to felony convictions, or around 1.4 million persons (Sentencing Project, 2000). The primary theoretical tool used to explain LFD legislation is the racial threat thesis (Behrens et al., 2003). The idea is that the presence of a high proportion of African Americans creates a threat that can be temporarily reduced by sentencing a large number of blacks to prison. This explains the situation in Florida, but it does less well in Texas and Iowa. Yet it has been observed that "we lack both case studies and comparative-historical analyses of the adoption of disenfranchisement law" (Ibid.), and this applies equally to research on the repeal and maintenance of such legislation. To begin to fill these gaps, we will demonstrate how the instrumental use of LFD law has continued unabated in Florida, while the distinction between instrumental and symbolic law can be used to explain the repeal of LFD legislation in Texas and its retention in Iowa. The study of this contemporary bigotry is made more difficult by the "race neutral" language found in the current debates (Ibid.: 568). Yet we will demonstrate that through policies that have been explicitly and are now "implicitly racial, state institutions organize and enforce the racial politics of everyday life" (Omi and Winant, 1986: 77).

Background I: Florida--The Most Infamous LFD State

Recent interest in LFD laws springs in great part from the experience in Florida (Johnson v. Bush). Florida's disenfranchisement law kept in excess of 600,000 citizens with felony convictions from voting in 2000 (Rapoport, 2003), of whom one-third were black (Wagner, 2001). Thus, Uggen and Manza (2002) argue that the outcome of the 2000 presidential election, as well as of several other presidential elections and U.S. Senate elections, would have had different outcomes if disenfranchised ex-felons would have had the vote. Florida's part in the 2000 presidential election has become infamous since the Supreme Court proclaimed George W. Bush as president. Before the election, state officials waged a $4.3 million campaign to purge Florida's felons from the voter rolls (Palm Beach Post, 2001). A private company, Database Technologies Inc. (DBT), was hired by Florida Secretary of State Katherine Harris to compile an annual list of felons through comparisons of voter rolls and criminal databases. "The ground rules created by the state ordered a voter targeted for removal from the list if his or her name had only an 80% match in letters with a list of about 175,000 former offenders compiled by the Florida Department of Law Enforcement" (Advancement Project, n.d.: 20). These lists, dubbed "scrub lists" by Florida officials, included nearly one percent of Florida's electorate and approximately three percent of its African-American voters (Palast, 2002: 1).

The purge lists included Florida residents with convictions from other states, whose voting rights had been restored by those states, and therefore should have been eligible to vote in Florida (Advancement Project, n.d.). Not surprisingly, DBT identified thousands of innocent voters as "possible" felons (Palm Beach Post, 2001: 2). At least 2,873 voters were incorrectly removed based on a letter to counties from Governor Jeb Bush's clemency office (Palast, 2002). Additionally, out of the 4,847 who appealed being removed from the voting rolls using this procedure, 2,430 were judged not to have felony convictions, with approximately 8,000 voters included who had never been convicted of anything greater than misdemeanors (Advancement Project, n.d.). Florida blacks were four times as likely as whites to be incorrectly purged by the state's techniques (Palast, 2002). By refusing to verify the accuracy of the "scrub lists," the Florida state government essentially stated that it was willing to bar thousands of innocent citizens from voting instead of taking the time to verify the information provided by DBT.

In 1998, Florida's total black population was 15% (U.S. Census, 2000). Among prisoners, 52.5% were black (Florida Department of Corrections, 2003), over three times the proportion in the total state population. In 1998, Florida's 389 prisoners on death row ranked third in the U.S. (Worm Almanac, 1998a). Florida is also one of the most restrictive states in enforcing its felony disenfranchisement legislation, with one in four black men unable to vote due to felony convictions (Sentencing Project, 1998). In 2000, Florida only restored voting rights to 1,832 ex-felons, about one out of every 300 in the state (Thompson, 2001). These low rates of re-enfranchisement for ex-felons have devastating effects on the black community of Florida:

In an extensive study of two poor and mostly black communities in Tallahassee, Florida, criminal justice professor Todd Clear was unable to find a single family without at least one disenfranchised man--making it unlikely that the communities will be able to band together when, for example, a state senator proposes locating a toxic waste dump nearby (Ibid.: 18). In its past and present, Florida's LFD law has had a significant instrumental impact that seems to be an intentional effort to escape the local racial threat.

Background II: Contradictions in the Solid South; Symbols of a Progressive Texas

While instrumental law seems to drive LFD in the Old South and in contemporary Florida, something else appears to be at work in Texas. If Florida has the most infamous LFD legislation, Texas has the most infamous criminal justice system. Surprisingly, Texas officially abolished its lifetime voting ban for ex-felons in 1983, when House Bill 718 was passed by the Legislature. Texas newspaper articles that we reviewed expressed no alarm about this proposal. The following summary was recorded by the Houston Chronicle (1983): "By a 103-35 vote, the House Thursday approved HB718 ... which would restore felons' voting rights eight years after they have completed their sentences." This bill was a great success for those working for felons' voting rights in the state, especially since "a felon voting rights bill [had] not cleared both houses of the legislature since [1977]," when former Governor Dolph Briscoe vetoed a similar bill (Ft. Worth Star Telegram, 1983a).

Many proponents of the bill were opposed to the eight-year waiting period required before ex-felons could legally vote. Charles Sullivan, executive director of Citizens United for the Rehabilitation of Errants (CURE), stated he was "not real happy" about the waiting period, which was added by a House amendment (Ft. Worth Star Telegram, 1983a). Representative El Franco Lee (D-Houston), the sponsor of H B718, agreed to the inclusion of a waiting period in the hopes that Governor White would not veto the bill (Dallas Times Herald, 1983). The Ft. Worth Star Telegram (1983 b) agreed that "waiting eight years does seem an unreasonable time. But proponents said that stipulation might be the only way they can get the bill passed this session. Their strategy is to get approval this time, then seek reduction of the eight-year wait in the next legislative session." After approval of the eight-year waiting period, it was indeed reduced to five years (San Antonio Light, 1983).

The proponents of HB718 emphasized the importance of...