There is a potentially historic election on the horizon, but as Floridians go to the ballot box to choose representation and decide upon potential changes to the state Constitution, they may not realize the unsettling history connected to the measures they are considering. While Amendment 4 repairs a discriminatory Jim Crow-era policy, Amendment 5 would institute a policy that first emerged in 1890 in Mississippi as part of the white backlash to funding schools and services for African Americans.
If passed, Amendment 4 would reverse the state’s discriminatory felony disenfranchisement law first adopted in the 1868 state Constitution. Laws to disenfranchise people convicted of felonies were commonplace in the South during the American Reconstruction and Jim Crow eras. They were part of the “Black Codes” that former Confederate states instituted to fight back against integrating formerly enslaved peoples equally into society. Florida’s Black Codes were only rivaled by Mississippi and South Carolina in their severity. Felony disenfranchisement laws, coupled with so-called “vagrancy” laws, were intended to permanently disenfranchise Black people in Florida. Vagrancy laws punished Black people for being unemployed. If convicted, they would be “lent” to farmers to work for free for one year — a return to slavery, if not in name then in deed. One of the legal descendants of Florida’s vagrancy laws is third degree theft. Florida’s low threshold for grand theft in the third degree — a mere $300 — is the lowest by far of any southern state, and in practice contributes to the large number of disenfranchised Floridians (1.3 million in 2018). African Americans are disproportionately impacted; one in five African American citizens in the state cannot vote due to felony disenfranchisement.
If passed, Amendment 5 would require a two-thirds (supermajority) vote of the state Legislature to approve any new state revenue, taxes and fees or eliminate tax incentives, loopholes and other such expenditures. As outlined by the Institute’s recent brief, Florida lawmakers continue to cut investments for critical public services while relying on an upside-down tax system, one in which families with the lowest incomes contribute the most as a share of their incomes. Amendment 5 would cement in place Florida’s inequitable tax system and low investment in public services, locking in inequality for generations to come.
The disproportionate impact of Amendment 5 has roots in the very first supermajority requirement to raise taxes in the United State circa 1890 in Mississippi. During the post-Civil War Reconstruction period, southern state legislatures for the first time were tasked with building schools and providing services for formerly enslaved peoples. As the Oregon Center for Public Policy reported, wealthy former slaveholders in the south revolted against investing their tax dollars going toward services for African Americans. In Mississippi, they banded together to protect themselves from future tax increases and devised the nation’s first supermajority requirement to raise taxes and revenues. They were likely to have at least a minority of seats in the state Legislature for the foreseeable future, and so this measure protected them from future efforts to provide for schools, roads, parks and colleges for communities of color. The Mississippi supermajority requirement, which stands to this day, inspired at least a dozen other states to follow suit over the next century. Florida’s Amendment 5 would similarly empower a minority of the state Legislature (a mere 13 senators) to block revenue bills that would invest in schools, infrastructure, emergency recovery and health care.
Revenue and expenditure politics in post-Civil War Florida were also infused by white backlash. In addition to the “vagrancy laws” mentioned above, the racist “Black Code” laws in Florida included several provisions regarding taxation. In 1866, the Florida Legislature passed laws establishing schools for African Americans but stipulated that they would be paid for only with taxes levied on formerly enslaved individuals, and that the state’s education fund was only for white schools (See picture below) . In 1868, the 14th Amendment to the United States Constitution was ratified, giving equal protection under the law and undermining the legality of southern Black Codes. However, Florida and other southern states responded by passing segregationist Jim Crow laws and continued to fight back against the federal government’s push for equality under the law.
The undemocratic nature of supermajority requirements that attracted former slaveholder legislators post-Civil War also alarmed the Founding Fathers. Alexander Hamilton called them “poison” to democracy because they would allow entrenched special interests and a minority of legislators to block the will of the majority. James Madison stated that supermajority requirements undermined the “fundamental principle of free government” because they allowed an empowered few to “take advantage” and “extort unreasonable indulgences” to allow the will of the people to move forward.
Fast-forwarding to 2018, in terms of supermajority requirements and who would benefit from them, nothing has changed. Amendment 5 would allow wealthy special interests to continue contributing a relatively low share of their income to taxes, while the rest of the state would pay the price in terms of cuts to schools, roads, bridges and mental health care following the next economic crisis.
Florida Policy Institute would like to thank Michael Leachman at the Center on Budget and Policy Priorities and Juan Carlos Ordóñez at the Oregon Center for Public Policy for their research and assistance with this blog.
 p.365. Richardson, J. (1969). Florida Black Codes. The Florida Historical Quarterly, 47(4), 365-379. Retrieved from https://ucf.digital.flvc.org/islandora/object/ucf%3A25402/datastream/OBJ/view/The_Florida_historical_quarterly.pdf
 The Political History of the United States of America During the Period of Reconstruction. McPherson, Edward. Clerk of the US House of Representatives. 1871. Retrieved from https://archive.org/details/politicalhistor01mcphgoog/page/n4
 Juan Carlos Ordóñez, Oct. 26,2018. “The Founding Fathers would lead the fight against Measure 104.” Oregon Center on Public Policy. Retrieved from https://www.ocpp.org/2018/10/26/founding-fathers-measure-104-oregon/