It’s déjà vu all over again. In a 6-3 ruling this week, the Mississippi Supreme Court struck down the state’s constitutional ballot initiative process. This is not the first time MS’ highest court killed off direct democracy on a technicality, though the last time was a century ago.

In the second decade of the 20th century, the Mississippi legislature referred two direct democracy amendments to the people for adoption. In 1912, the referred measure was defeated at the polls, gaining only 35% of the popular vote. In 1914, though, Mississippi voters passed the measure with 69% of the vote, adding, at least nominally, the right of people to place statewide measures on the ballot. In 1922, the state’s Supreme Court voided the election. My article in the APSR with Dustin Fridkin looks at some of the factors that led to the legislative referral to the people of measures such as these.

The 1914 legislative referral gave considerable power to the citizens, at least in theory. Initiative petitions, for either constitutional amendments or statutes, required valid signatures from 7,500 qualified voters to qualify a statewide measure for the ballot. The Governor could not veto an initiative if approved by the electorate. An initial legal challenge, Howie v. Brantley (1917), the state Supreme Court upheld the initiative process (as well as the popular referendum). Several years later, after a group circulated a ballot initiative to reduce the $40,000 annual salary of the State Revenue Agent, Stokes V. Robertson, Robertson sued in state court, arguing that the 1914 referred measure placed on the ballot by the legislature was invalid for a technical reason, specifically, that it did not allow voters to to “vote for or against each amendment separately.” In 1922, the Mississippi Supreme Court reversed its earlier ruling and held that the state’s short-lived (and never actualized) initiative process was unconstitutional.

Well, surprise, surprise. Stymied once again at the ballot box, Florida Republicans want to change the rules for statewide ballot initiatives…

On Tuesday, the Florida House Judiciary Committee proposed PCB CDJ 19-01, a cynical power grab by the majority party to crack down on the citizen initiative process.  Over the past 20 years, Floridians, in a state dominated by Republican lawmakers, have consistently approved progressive ballot measures–from High Speed Rail, to Raising the Minimum Wage, to Fair Redistricting, to Medial Marijuana, to Felon Re-infranchisment.  When fellow citizens place these statewide constitutional amendments on the ballot for public consumption, Florida voters consistently gobble them up.

Now Republican lawmakers want to crackdown on the initiative process itself, changing the rules of the game so as to stymie future efforts to have citizens approve statewide ballot issues the majority party can easily bury in the legislative process.

PCB CDJ 19-01 is not the only attack on the process of direct democracy in Florida this session.  SJR 232 would require citizen-initiated constitutional amendments to pass with a 2/3rds supermajority, up from 60% (which, itself, was jacked up from a simple majority by a statewide referendum placed on the ballot by the Republican legislature in 2006).

This is all part of a coordinated attack on the initiative process, and not only in Florida (see what’s happening in other states in this Brennan Center piece). It’s not new (I wrote about similar efforts more than a decade ago); as it was then, it is clearly motivated by partisanship and control of the policy agenda.

So, it’s not rocket science as to why Republican-controlled legislatures try to change the rules of the game, curtailing the power of citizens to use the initiative process.  Progressive statewide ballot measures often are approved in states where conservatives dominate the state legislature. In these states, Republican lawmakers aren’t used to, nor do they like, ceding the legislative agenda to the people. After all, in the first part, in many states they control state government precisely because they were able to successfully gerrymander legislative districts–drawing favorable districts to afford them a majority of seats in both legislative chambers, thus controlling the policy agenda.

Of course, direct democracy is no panacea for what ails our republic, and over the past 25 years I’ve written critically about the process. But as Woodrow Wilson, no fan of the initiative process himself, conceded in 1911 while on the presidential hustings, citizen lawmaking can serve as the “gun behind the door–for use only in case of an emergency, but a mighty good persuader, nevertheless.”

Registering “Returning Citizens” in Florida

The passage of Amendment 4 in Florida in November 2018 was historic. Excluding convicted murderers and sexual offenders, the Voting Restoration Amendment automatically restores the voting rights of citizens with prior felony convictions who served their sentence (including probation, parole, and any fines, fees, or restitution).

Eligible ex-felons were permitted to register to vote starting on January 8, 2019.  Some estimates placed the potential number of ex-felons who might register in the Sunshine State as high as 1.4 million people, or nearly one-tenth of the current registered voters in Florida.  Scholars estimate that as many as one-in-four black men in Florida have been disenfranchised by a law that dates back to the state’s 1868 Florida Constitution.

In January, reporters flocked to the offices of the state’s 67 Supervisors of Elections to interview newly registering voters—including those locked out from the democratic process for decades or who had never experienced the franchise.

According to the Florida Secretary of State, more than 53,000 Floridians registered to vote in January 2019.

Although not all of the new registrants had a felony conviction, was the registration rate in January higher than expected?

Although the number of new registrants in January 2019 exceeded the number from December 2018, the uptick was likely not solely the result of a surge in ex-felons registering to vote.  Indeed, compared to new registrations in previous years, the numbers are not dramatically higher–roughly 49,000 voters registered in January 2018; nearly 38,000 registered in in January 2017; and over 50,000 registered in January 2016. In all cases, the January numbers were greater than the previous December.

Perhaps one reason why we didn’t see a huge surge in new registrations was due to complications in the rollout of Amendment 4. Backers of the measure, including the ACLU of Florida, argue that the measure is self-implementing. But there continues to be confusion over how the verification of returning citizens should occur or how murder or sex offender should be defined. A Senate Criminal Justice Committee legislative hearing in January revealed numerous discrepancies in the verification process.

On a positive note, some returning citizens—most notably Desmond Meade, the charismatic leader of the Florida Rights Restoration Coalition—successfully registered in January.

But others have not been so lucky.

After scouring news reports, we identified 61 individuals in January who self-identified as former felons who were registering to vote.

Some of these returning citizens, though, still have not been placed on the voter rolls.

Drawing on public records, we’ve identified more than 20 of the 61 self-identified returning citizens not on the books as of February 1. It’s possible that some moved out of Florida, died, or reported a nickname to reporters when they registered to vote. There are other possibilities, tragic and ironic, too.

It’s also possible that some applicants had missing information on their registration form. Florida requires an applicant’s name, address of legal residence, date of birth, checking the box affirming that the applicant is a citizen of the United States, and a current and valid Florida driver license number or number from a Florida identification card, or the last four digits of their Social Security number.

For returning citizens to leave required information off a form would be odd, as reporters documented how Supervisors and voting rights advocates oversaw the process. And even if missing information caused a delay in processing the applications, according to the Florida Statutes, “[t]he registration date for a valid initial voter registration application that has been hand delivered is the date that the application is received by a driver license office, a voter registration agency, an armed forces recruitment office, the division, or the office of any supervisor in the state.”

The confusion over allowing returning citizens to register to vote is disconcerting.  Although our sample of self-identified ex-felons is small and non-random, our findings may portend further complications for this historically marginalized population to be able to successfully register to vote.

Why might all this matter? To be eligible to vote in Florida, one must be registered at least 29 days prior to Election Day.  It is possible that some of our returning citizens may have their franchise jeopardized in upcoming local elections.

Let’s hope—with guidance from the state legislature—that our local Supervisors of Elections and the Florida Division of Elections can hammer out a fair process to assure that all returning citizens who register to vote have their applications processed in a timely and proper manner.

Returning citizens and the more than 5 million Floridians who supported Amendment 4 last November are counting on it.


This opinion piece was written by my three University of Florida Political Science Junior Fellows, Karla Cejas, Sydney ElDeiry, Max Matheu. They are part of the UF Election Science team lead by Professor Michael McDonald (aka, @electproject) and me.