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Why the meaning of Amendment 4 could depend on a comma | Column

An errant comma may affect the interpretation of Amendment 4, writes a law professor.
In this Oct. 22, 2018, photo, people gather around the Ben & Jerry's "Yes on 4" truck as they learn about Amendment 4 and eat free ice cream at Charles Hadley Park in Miami. [WILFREDO LEE  |  AP]
In this Oct. 22, 2018, photo, people gather around the Ben & Jerry's "Yes on 4" truck as they learn about Amendment 4 and eat free ice cream at Charles Hadley Park in Miami. [WILFREDO LEE | AP]
Published Nov. 21
Updated Nov. 22

The meaning of Amendment 4, which Floridians overwhelmingly voted for last November purportedly to restore voting rights to nearly 1.5 million people, could depend on a comma.

Amid confusion over the amendment’s reach, the Legislature narrowed its scope through a bill that required felons to pay back all court fines, fees and restitution before being eligible to vote – the first time that’s ever been required in Florida. But the text of the bill, which Gov. Ron DeSantis signed this summer, slightly altered the actual wording of Amendment 4 by inserting a comma after “all terms of sentence…” That’s indisputable, even if it happened inadvertently.

Adding a comma may seem like an obscure point, but it could prove significant. The governor asked the Florida Supreme Court for a nonbinding advisory opinion on Amendment 4, and oral arguments were held earlier this month. Joe Jacquot, his general counsel, clarified he did so “not because of ambiguity in the text of Amendment 4 but for authority and an interpretation from this court … of whether Amendment 4 requires legal financial obligations within a sentence to be completed before a felon regains voting rights.” Jacquot emphasized “analysis of Amendment 4 should begin and end with its plain language.”

Here’s the amendment’s “plain language”: “Except as provided in subsection (b) of this section, any disqualification from voting arising out of a felony conviction shall terminate and voting rights shall be restored upon completion of all terms of sentence including parole or probation.” (Note: Subsection (b) provides exclusions for murder and felony sexual offenses, which the Clemency Board will address.)

Without that comma, a grammarian might reasonably construe “including parole or probation” as specific terms that modify the more general “all terms of sentence…” In other words, they are essential modifiers. But both chambers, in drafting the bill, added the comma, and those modifiers were reduced to a subordinate clause, diminishing the weight of any such limiting language suggesting “all terms of sentence" would not necessarily be limited to terms consistent with “parole or probation" upon release from any custody.

Justice Robert Luck, one of three DeSantis appointees to the court, framed the issue succinctly during oral argument. He asked Jacquot, “Isn’t the… best textual argument from the opposing side that when you have specific examples after a general term, the general term is to be read consistent with those specific examples?”

Florida case law is replete with examples of the presence or absence of a comma dramatically impacting meaning and determining outcomes. I filed a related brief with the court in anticipation of oral argument, which the Florida Association of Criminal Defense Lawyers joined. Rules of syntax are elusive so it’s not surprising this topic hasn’t resulted in more reporting or editorial writing.

Luck was confirmed by the U.S. Senate to the U.S. Court of Appeals for the Eleventh Circuit (which hears appeals from federal district courts in Florida and surrounding states) less than two weeks after oral argument -- these issues could conceivably follow him. The implications of first requiring payment of such legal financial obligations before restoration are also being litigated in federal court.

During preliminary proceedings in 2017 a notable ballot initiative proponent asserted that fines, fees, costs and restitution must be paid before restoration. This echoed among various advocates and at the grassroots level. While who said what to whom, how and when isn’t irrelevant, it’s the plain language of this new provision of our state Constitution – read at face value -- that ultimately matters for the court’s analysis.

Simply put, the state Constitution prevails over legislation that may depart from it so the potential importance of the Legislature’s misplaced comma -- or more accurately the lack thereof -- in the plain language shouldn’t be underestimated. A comma counts!

Mark Schlakman is senior program director for Florida State University’s Center for the Advancement of Human Rights. He was an assistant general counsel and clemency aide to Gov. Lawton Chiles, and later served as principal investigator of a project funded in part by Administration of Justice grants from the Florida Bar Foundation, entitled Rethinking Civil Rights Restoration in Florida.

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