The Best Laid Plans: How Administrative Burden Complicates Voting Rights Restoration Law and Policy.

• Author: Selin, Jennifer L.

ABSTRACT

Despite significant literature on the electoral and democratic implications of laws that restore the right to vote to individuals with felony convictions, few scholars have explored whether these reforms result in practical changes. This Article examines the effect of administrative capacity and individual experience on policy implementation and finds that, even in the face of de jure felon rights restoration, policymakers can (knowingly or unwittingly) alter de facto restoration. Specifically, states have limited administrative capacity to absorb the costs of rights restoration. As a result, the burden of restoration falls onto citizens. Facing learning, compliance, and psychological hurdles to the right to vote, many individuals with felony convictions simply do not have the resources to restore their civil rights. Put simply, even the best laid plans often go awry when it comes to the burden of policy implementation.

INTRODUCTION

In November 2018, almost 65% of Florida voters voted "Yes" on a citizen-initiated constitutional amendment to restore voting rights to citizens with felony convictions after they have completed their sentence ("Amendment 4"). (1) The vote is part of a national movement for disenfranchisement policy reform and citizen rights restoration. Estimates suggest that, since 1997, 1.4 million citizens in twenty three states have regained the right to vote as a result of legal changes to disenfranchisement policy. (2)

Yet, while reforms have provided the legal opportunity for rights restoration, questions remain about whether such reforms result in practical changes for citizens with felony convictions. For example, in the first three months after Amendment 4 became effective, less than 0.2% of the citizens affected by the Amendment registered to vote (2,000 of 1.4 million). (3) Part of this is due to questions among citizens and state officials regarding voter eligibility. Kelly Corder, director of communications for the Florida Commission on Offender Review ("FCOR") - one of the agencies tasked with identifying individuals eligible for restoration - noted that the agency had "temporarily postponed consideration of pending applications for restoration of civil rights while the new framework required to implement the constitutional changes [wa]s defined." (4) Similarly, many county elections supervisors implored the state legislature to provide them with guidance interpreting the Amendment. (5) Such guidance clarifying the parameters of the state's responsibilities for administering Amendment 4 did not become law until more than six months after Amendment 4 became effective. (6) Rights restoration likely will require implementing legislation and administrative action by, at minimum, the Florida Department of Corrections, the Department of Law Enforcement, the Department of State, and each of the county supervisors of elections. (7) In the meantime, local election administrators have little real guidance on voter eligibility, allowing for a potential of "67 supervisors of election interpreting" the law in different ways. (8)

Much of the debate and discussion surrounding felon disenfranchisement and reenfranchisement centers on the constitutionality of disenfranchisement or the passage of reform bills. Yet, as the example of Florida suggests, a major obstacle to rights restoration is administrative in nature. In most states, only a modest number of citizens achieve de facto restoration of rights because the procedures governing reenfranchisement are confusing and the burden of pursuing restoration falls on the citizen. (9) The lack of attention to administration of restoration policy is concerning because it provides little insight into the factors that determine whether citizens' votes are restored in practice. (10)

Despite the fact that most administrators operate in relative obscurity, their actions and decisions play a critical role in politics; the vast majority of conflict between governments and citizens tends to take place in the administrative, rather than public, political arena. (11)

To use a legal metaphor, citizens who interact with the state to access their rights find themselves in an administrative courtroom. In some cases, they are given the presumption of innocence, and little is required of them. "But in other cases, the citizen is treated with suspicion and must prove their [sic] innocence by negotiating a demanding set of administrative burdens." (12)

Sweeping policy change without knowledge of the administrative hurdles imposed brings implementation risks, particularly in election administration where authority is decentralized and administrators have substantial discretion and limited resources. (13)

In order to help make sense of how the administration of voting rights restoration reforms influence citizens' civil rights, this Article utilizes the concept of administrative burden. Put simply, administrative burden consists of the learning, compliance, and psychological costs citizens experience when interacting with government. (14) These costs make a difference in citizens lives, affect some groups more than others, and often reinforce inequities in society. (15) Furthermore, they are the product of deliberate choices made in the political arena. (16)

Administrative burden is particularly relevant when citizens exercise their democratic rights through voting. (17) When election administrators struggle to implement policy, often without any real guidance from their principals in the legislative or executive branches, they must make decisions about how much burden to absorb and what costs to pass on to citizens. Financial resources, expertise, and organizations within which administrators operate affect these decisions. With respect to the restoration of voting rights for citizens with felony convictions, there is limited administrative capacity to absorb the costs of policy implementation. Furthermore, even in the unlikely event that all administrators operate under the same conditions, individual experiences with the government condition the effects of policy change. Rights restoration requires that citizens have accurate information about eligibility, have the ability to allocate resources for compliance with eligibility requirements, and are able to overcome the frustration, stress, and sense of helplessness that often results from government interaction. These burdens often impede restoration reform.

In Part I, this Article examines election administration in the context of public administration. Part I argues that, too often, policymakers and scholars conflate laws with the government's administration of and citizen experience with those laws. This is particularly true in the area of felon disenfranchisement and citizen rights restoration. The combination of decentralization and discretion in the American electoral system means that the implementation of policies designed to restore citizens' rights likely varies across jurisdictions.

Part II applies the concept of administrative burden to explain this variation. After defining the concept of administrative burden and making some assumptions about the policy process, Part II discusses the effect of administrative capacity and citizen experience on policy implementation. The context in which administrators operate and citizens' ability to advocate for their civil rights have consequences for the effectiveness of any legal regime of voting rights restoration. As a result, even in the face of de jure rights restoration, policymakers can alter de facto restoration with seemingly apolitical statutory language.

Throughout Parts I and II, this Article discusses the application of a single legal framework across a range of jurisdictions but uses the example of Florida's Amendment 4 to illustrate key points. Part III explores more explicitly Amendment 4's implementing legislation and addresses the administrative complications that arise from the legislation. In doing so, that Part identifies concerns about administrative capacity and discusses individuals' likely experiences with the administration of that legislation. Finally, Part III identifies the political context in which administrators implement Florida's rights restoration policy and speculates on the likelihood of legislative, administrative, or judicial recourse.

1. ELECTION ADMINISTRATION AS PUBLIC ADMINISTRATION

   Public administration contemplates the relationship between administrators, political leaders, and citizens in the pursuit of sound governance. (18) Policymakers and citizens alike understand that government agencies play a key role in informing, guiding, and even coercing citizen behavior consistent with community goals. (19) In the context of elections, examples of how government agencies shape citizen behavior abound. For example, the Federal Election Commission administers and formulates policy with respect to campaign finance law, (20) the U.S. Election Assistance Commission exists to develop guidance on federal statutory requirements relating to voting systems and voter access, (21) each state has a chief election official or board that administers election law, (22) and local governments delegate to specific officials the authority to register voters and administer elections. (23) These examples suggest that "[e]lection administration is public administration." (24)

   Those who consider public administration in the law tend to focus on the external or statutory factors that govern the relationship between administrators and citizens. (25) Rich debate over statutory language and well-developed theories of judicial statutory interpretation are hallmarks of legal discussions on the subject. (26) However, how administrative agencies interpret their statutory mandates and implement policy in their day-to-day operations receives comparatively less attention. (27) This is problematic, as internal agency procedures and practices are...