In November 1865—barely six months after Appomattox, and three weeks before the official ratification of the Thirteenth Amendment—the New York Tribune’s front page bore a provocative headline: “South Carolina Re-establishing Slavery.” The story laid out the new system being put into place in most of the former Confederacy—“Black Codes,” criminal laws targeting black citizens, coupling a long list of minor offenses with a schedule of prohibitive fines. If a black defendant could not pay the fine, he or she was to be “contracted out” to work off the “debt” for some white employer. (In some of the codes, a “debtor’s” black children would also be “apprenticed,” with preference given to the families of their former “masters.”) The new system, a Confederate veteran explained to Chicago Tribune correspondent Sydney Andrews, would “be called ‘involuntary servitude for the punishment of crime,’ but it won’t differ much from slavery.”
This history—the ardent and persistent embrace by Southern racists of the criminal justice system as a means of racial domination—gives me a somewhat jaundiced view of state laws barring convicted felons from voting. They are a heritage of the old slave-power mindset, and have no business marring politics in a 21st century democracy. By and large, as my grandmother used to say, “they make me tired.”
Florida’s felon-disfranchisement scheme plainly has wearied U.S. District Judge Mark Walker; on Thursday he announced that the state’s system violates the Constitution and ordered the parties to a lawsuit to propose a remedy by February 12.
It’s a slight misnomer to say that Hand v. Scott struck down the disfranchisement scheme. Walker did not hold that felons, or ex-felons, have an automatic right to vote. That issue, he reasoned, is settled by a 1974 Supreme Court case, Richardson v. Ramirez, that held that “the exclusion of felons from the vote has an affirmative sanction in § 2 of the Fourteenth Amendment.” (That section, never actually applied, purported to reduce congressional representation for states that denied the vote to adult male citizens “except for participation in rebellion, or other crime.”) The Florida case challenged the system—if that is the word—Florida uses to restore voting rights to some, but not all, former felons.