Conservatives cannot abide interference by the governed in their governance. James Madison famously wrote in Federalist 55, “Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob.” With this in mind, the Founding Fathers took great pains in the Constitution to insulate government from the unfiltered will of the people. And this aversion to anything remotely resembling direct democracy is hard wired into the DNA of conservatives to this day.
So it is no surprise the Republican leadership in Tallahassee was alarmed by the voters’ approval in 2018 of two citizen-initiated constitutional amendments. One of those was Amendment 4, the automatic restoration of the voting rights of felons not convicted of murder or sex crimes upon completion of their sentences, including probation or parole. Conservatives believe there are already too many people of the wrong sort voting, so they take a very dim view of the prospect of more than a million felons suspected of being disproportionately liberal being eligible to register and vote in November.
This kind of interference by the public in the maintenance of the political status quo, and the possibility of similar eruptions of the vox populi, such as the proposed constitutional amendments banning so-called assault rifles and restructuring the closed primary election system, caused the powers that be to spring into action.
The first line of conservative defense against democracy is preventing proponents of citizen initiatives from securing the petition signatures necessary to qualify for the ballot. Gov. Ron DeSantis pushed through legislation last year that makes it more difficult and expensive to gather petition signatures, the idea being to strangle pesky citizen initiated constitutional amendments in the cradle.
If proponents of a citizen initiative still cobble together the number of signatures required to trigger Florida Supreme Court review of the proposed constitutional amendment for clarity of language and transparency of purpose in the ballot description, the second line of defense is Attorney General Ashley Moody. Her job provides her the opportunity to play Whack A Mole as proposed amendments pop up by urging the court to keep them off the ballot.
Stripped of obfuscating legalese, the gist of Moody’s argument in most of these cases is that voters are just not smart enough to read the descriptions of the amendments and understand them. This argument calls to mind H.L. Mencken’s pithy dictum that democracy is the pathetic belief in the collective wisdom of individual ignorance. Moody is certainly not a democrat.
If, against all odds, an objectionable constitutional amendment makes it to the ballot and garners the requisite 60 percent of the vote for passage, the last redoubt in the conservative defensive works is the Republican-controlled Legislature. The still-developing story of Amendment 4 is instructive in this regard.
Proponents of Amendment 4 insist it is self-implementing. DeSantis and the Legislature disagree. They implemented with a will. Predictably, the law they crafted last year would prevent up to 80 percent of the amendment’s potential beneficiaries from having their voting rights restored.
The Florida Supreme Court recently blessed the Legislature’s interpretation of the amendment, but, in a pending federal lawsuit brought by amendment proponents, U.S. District Court Judge Robert Hinkle has issued a preliminary injunction stating that significant parts of the implementing legislation may violate the U.S. Constitution because it would prevent felons from voting even if they cannot afford to pay their outstanding fines, fees, court costs and restitution. A trial on the merits has been set for April.
The path DeSantis and the Legislature will take through this legal thicket is not known at this point, perhaps even to them. But you can safely bet the family farm on this: Any ground given to the federal judge on felons voting will be measured in inches and given grudgingly, and if things can be so arranged as to scupper Amendment 4 altogether, scuppered it will be.
Keeping a tight rein on the public when it comes to the public’s business is not the work of a day. Perseverance and resolve are required. Fortunately for conservatives, those are traits are in plentiful supply among Republicans in Tallahassee.
Mac Stipanovich was chief of staff to former Gov. Bob Martinez and a long-time Republican strategist and lobbyist. He has since registered as no party affiliation and as a Democrat, and his voter registration now varies with the election cycle.