POLITICS
02/02/2018 12:09 pm ET

Judge Says Florida's System For Restoring Voting Rights To Felons Is Unconstitutional

Judge Mark Walker blasted the state's process, with its "substantial risk of arbitrary and discriminatory vote-restoration," as "worse than a coin flip."

A Florida federal judge ruled Thursday that the state’s system for restoring voting rights to former felons was unconstitutional because it provided a “gauntlet” of “hurdles” toward restoring the franchise.

Florida is one of four states that permanently strips voting rights of anyone with a felony conviction. To get their voting rights back, former felons who have completed their entire sentences must appear before a clemency board consisting of Gov. Rick Scott (R), the state attorney general, the chief financial officer and the agriculture commissioner. The board only meets once a quarter and after he took office, Scott made it so felons had to wait at least five years before completing their sentences to apply. More than 10,000 people are waiting to have their rights restored.

In his opinion, Judge Mark Walker of the United States District Court for the Northern District of Florida noted that in the four years before Scott took office, 154,000 people had their rights restored. But since Scott was sworn in, fewer than 3,000 people had their voting rights restored since 2011.

Walker, who was appointed to the bench by President Barack Obama in 2012, said that as it currently exists, the board has absolute discretion over whether to restore voting rights.

“Florida’s Executive Clemency Board has, by rule, unfettered discretion in restoring voting rights. ‘We can do whatever we want,’ the Governor said at one clemency hearing,” Walker wrote in his scathing opinion. “In Florida, elected, partisan officials have extraordinary authority to grant or withhold the right to vote from hundreds of thousands of people without any constraints, guidelines, or standards. The question now is whether such a system passes constitutional muster. It does not.”

Walker found that Florida’s system violated the First Amendment protections on freedom of expression and the equal protection clause of the 14th Amendment. He noted that the board restored voting rights to those who expressed conservative views, while those who expressed views disagreeing with the board members did not. Walker pointed to an example when the board asked a white man about an illegal vote he had cast, but restored his voting rights after he told Scott the vote had been for him. Walker noted the board denied restoring voting rights to five other former felons ― four of whom were black ― for casting illegal ballots.

“If a state cannot disenfranchise for arbitrary reasons, a state cannot disenfranchise convicted felons in a manner repugnant to the First Amendment,” he wrote. “A state cannot yank the right to vote from a Republican felon but retain voting rights for Democratic felons.”

“If any one of these citizens wishes to earn back their fundamental right to vote, they must plod through a gauntlet of constitutionally infirm hurdles. No more,” Walker wrote in the conclusion to his opinion.

Nationally, about 6.1 million people are disenfranchised because of a felony conviction, and more than a quarter of that population lives in Florida, according to The Sentencing Project. More than one in every five of African-Americans in the state cannot vote. The state’s disenfranchisement law goes back to the Jim Crow South, when lawmakers targeted African-Americans with laws stripping voting rights for certain crimes after Congress required that states adopt the 13th and 14th amendments and guarantee universal male suffrage in their state constitutions.

In his opinion, Walker said the state’s system for choosing whom to give voting rights back to was worse than choosing at random.

“The violation in this case — the substantial risk of arbitrary and discriminatory vote-restoration based on an applicant’s identity and perceived voting preferences from partisan government officials — is worse than a coin flip,” Walker wrote. While Walker struck down the state’s system for re-enfranchising voters, he asked the parties to provide further briefing on what a remedy might look like. He also said that the waiting periods before a former felon can apply to have their rights restored were constitutional.

The suit was filed in 2017 on behalf of nine former felons who lost their voting rights. Seven of them had their applications rejected, one was not yet eligible to apply for restoration and one had a pending request.

“Today a federal court said what so many Floridians have known for so long —that the state’s arbitrary restoration process, which forces former felons to beg for their right to vote, violates the oldest and most basic principles of our democracy,” Jon Sherman, senior counsel at the Fair Elections Legal Network, which filed the suit on behalf of the plaintiffs, said in a statement Thursday. “While the Court has yet to order a remedy in this case, it has held in no uncertain terms that a state cannot subject U.S. citizens’ voting rights to the limitless power of government officials.”

John Tupps, a Scott spokesman, said in a statement Thursday the governor believed the state’s process for restoring voting rights was legal.

“The discretion of the clemency board over the restoration of felons’ rights in Florida has been in place for decades and overseen by multiple governors. The process is outlined in Florida’s Constitution, and today’s ruling departs from precedent set by the United States Supreme Court,” he said. “The Governor believes that convicted felons should show that they can lead a life free of crime and be accountable to their victims and our communities. While we are reviewing today’s ruling, we will continue to defend this process in the court.”

Separately from the legal effort to challenge Florida’s process, there’s also a grassroots effort underway in the state to make it easier for former felons to have their voting rights restored. Last month, organizers gathered enough signatures to put a constitutional amendment on the ballot in November to automatically restore voting rights to felons who have completed their sentences, except for those convicted of a murder or sexual offense. The measure will need to get 60 percent of the vote in November to pass.

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