Scott Powers
When Jason Mariner won the Republican Primary last week to run for Florida’s 20th Congressional District, he put himself into position for a legal challenge that could open a door for felons to run for federal office.
Mariner has a felony record. His campaign says he has done his time and paid his fines, so he has cleared his right to vote, under the Amendment 4 provisions.
It’s unclear if that’s enough to qualify him to hold elected office, or if he still needs to submit to a formal process administered by the Florida Commission on Offender Review and Office of Executive Clemency. His campaign contends he doesn’t. Amendment 4, approved by voters in 2018, does not address office-holding rights.
The Florida Constitution says no person convicted of a felony can vote or hold elected office until they have their civil rights restored.
The U.S. Constitution, however, says something different about elected office holders in the U.S. House of Representatives, which Mariner seeks.
“I think the United States Constitution and the Supreme Court would support his ability to serve,” said Michael Morley, the Sheila M. McDevitt Professor of Law at Florida State University College of Law.
If that’s correct, Florida’s law could be in legal jeopardy if it’s used as the basis for a legal challenge of Morley’s qualification to serve in Congress.
On Nov. 2, Mariner, a Palm Beach Gardens advertising executive who has done prison time for felonies — and who has been open with voters about his past — defeated Greg Musselwhite 58% to 42% in a CD 20 Special Election Republican Primary.
The result has not yet been declared official by the Florida Division of Elections, at least on its website.
Fresh Take Florida, a news service of the University of Florida College of Journalism and Communications, reported last week that the Governor’s Office said its attorneys were trying to determine whether the state’s rules requiring restoration of civil rights would apply to a Florida candidate for federal office.
Mariner told Fresh Take Florida last week that he was confident he was a lawful candidate.
“No, it’s not going to be an issue,” he said.
The lawyers in the Governor’s Office might reach the same conclusion, based on constitutional law experts consulted by Florida Politics. Or they could advise that this is not a battle Florida wants to fight.
The Executive Office of Gov. Ron DeSantis referred an inquiry about Mariner’s status Monday to the Secretary of State’s Office. The Secretary of State’s office did not respond.
Article VI, Section 4, of the Florida Constitution states that, “No person convicted of a felony … shall be qualified to vote or hold office.” The provision doesn’t explicitly include federal offices, but it doesn’t exclude them either.
Article I, Section 2, of the U.S. Constitution spells out qualifications for someone to serve as a member of the U.S. House of Representatives: A person must be at least 25 years old, a U.S. citizen, and a resident of the state.
That’s all.
Can there be more to it? Can states add more qualifications, even to ban felons?
Perhaps not, according to two key U.S. Supreme Court decisions that raised the issue, say some constitutional law scholars.
The first case, from the 1960s, involved a veteran member of the House, Democratic Rep. Adam Clayton Powell Jr. of New York. That case addressed whether there could be any additional qualifications beyond what the Constitution enumerates.
That case arose after a House investigation concluded Powell was corrupt. He won reelection in 1966 anyway. So in 1967, the House refused to seat him, excluding him from membership. He sued and won in the Supreme Court.
In the 1969 majority decision opinion for Powell v. McCormack, Chief Justice Earl Warren allowed that the House could have expelled Thompson for misconduct. But the House didn’t try to do that. Instead, the House tried a different, quicker, cleaner, easier route. It tried to exclude him from ever coming in, saying he was unqualified, due to misconduct. The Chief Justice concluded the House couldn’t do that, because good conduct is not one of the three qualifications that the Constitution says someone needs to possess in order to take that job.
Then, in 1995, the Supreme Court got a case out of Arkansas, which tried to impose term limits on congressional members. The case addressed whether a state could add to qualifications, just for that state. The qualification in this case was of someone who hadn’t already served too many terms.
While reaffirming the Powell decision, the Supreme Court concluded that Arkansas’ move was another attempt to add qualifications to those that already appear in the Constitution.
In his majority opinion for U.S. Term Limits v. Thornton, Justice John Paul Stevens noted that Arkansas and its supporters didn’t cite a single case in which any court anywhere ever ruled that a state could add qualifications for a member Congress. It also addressed states’ rights, saying they were preempted in this situation.
“Allowing individual States to adopt their own qualifications for congressional service would be inconsistent with the Framers’ vision of a uniform National Legislature representing the people of the United States. If the qualifications set forth in the text of the Constitution are to be changed, that text must be amended,” Stevens wrote.
Morley also noted the U.S. Constitution explicitly gives states some specific rights in congressional elections, to prescribe “the times, places and manner of holding elections.” So the Supreme Court has concluded the Constitution is explicit about what states can and cannot do regarding congressional elections, he noted.
“And so I think, based on those precedents, he (Mariner) has a very strong claim both to appear on the ballot and, if he were to win, to serve,” Morley said.
Terri Day, a constitutional law professor at Barry University’s Dwayne O. Andreas School of Law in Orlando, concurred with Morley, that the U.S. Constitution and Supreme Court decisions — for now — hold that states cannot add any qualifications for anyone to hold congressional office.
But, Day cautions, the Supreme Court has changed significantly since 1995. The current conservative Supreme Court might be ready to side with the dissenting opinion that Justice Clarence Thomas issued in the 1995 Arkansas case, she advised.
“Nothing in the Constitution deprives the people of each State of the power to prescribe eligibility requirements for the candidates who seek to represent them in Congress.” Thomas opined. “The Constitution is simply silent on this question. And where the Constitution is silent, it raises no bar to action by the States or the people.”
Day also noted the Powell v. McCormack case also could come into play when considering Florida’s ban on felons, as both that case and Florida’s felons clause assume that some conduct is just too unbecoming for someone to be qualified for House service. The Supreme Court was not persuaded of that regarding Powell.
One potential strategy for Florida that could save the Florida Constitution’s Article VI, Section 4 from being tested in a case that could risk striking it down: do nothing and say nothing. The issue will go away, if Mariner loses in the Special General Election on Jan. 11, as expected.
CD 20 has an overwhelmingly Democratic base. No Republican has gotten even 25% of the vote in a General Election there since 2010. The late Democratic Rep. Alcee Hastings, whose death earlier this year is leading to the Special Election, held the seat since the last redistricting, in 2012.
It’s uncertain who will be the Democratic candidate in January. But that’s another matter.
Broward County Commissioner Dale Holness and Trinity Health Care Services CEO Sheila Cherfilus-McCormick are awaiting a recount of one of the closest contests in years. They were separated by 5 votes at last count.
