A federal judge, in a blistering order, puts a stop to Florida’s rights-restoration procedure in a lawsuit against Gov. Rick Scott that he said wasn’t even close.
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TALLAHASSEE – A federal judge permanently blocked Florida’s “fatally flawed” process of restoring voting rights, giving Gov. Rick Scott and the Board of Executive Clemency a month to come up with a new system of providing ex-felons the right to vote.
In Tuesday’s order, U.S. District Judge Mark Walker repeatedly chided Scott and the state clemency board – comprised of Scott, Attorney General Pam Bondi, state Chief Financial Officer Jimmy Patronis and Agriculture Commissioner Adam Putnam – for the current restoration process and for threatening to scrap the system altogether after the judge last month struck down the process as unconstitutional.
Walker, siding with the voting-rights group Fair Elections Legal Network, last month found that the state’s clemency system is arbitrary and violated First Amendment rights and equal-protection rights under the U.S. Constitution’s 14th Amendment.
A big win
Walker’s order was the latest salvo in the battle over voting rights in Florida, one of just a handful of states that don’t have some sort of automatic restoration of the right to vote for ex-felons.
Under the current system, felons must wait five years before applying to have their civil rights, including the right to vote, restored. Felons who have been convicted of certain violent crimes or sexual offenses must wait at least seven years before seeking a hearing to have their rights restored.
Once an application is made, the process can take years – and big bucks – to complete, and involves extensive documentation, such as certified copies of charges, judgments and other court documents.
Tightened under Scott
Since the changes went into effect in 2011, Scott – whose support is required for any type of clemency to be granted – and the board have restored the rights of 3,005 of the more than 30,000 convicted felons who’ve applied, according to the Florida Commission on Offender Review. There’s currently a backlog of 10,085 pending applications, according to the commission.
In contrast, more than 155,000 ex-felons had their right to vote automatically restored during the four years of former Gov. Charlie Crist’s tenure, according to court documents.
New Jim Crow
The restoration of felons’ rights has long been controversial in Florida, with critics of the state’s process comparing it to post-Civil War Jim Crow policies designed to keep Blacks from casting ballots.
A political committee known as Floridians for a Fair Democracy has collected enough petition signatures to place a measure on the November general-election ballot that, if approved by voters, would automatically restore voting rights to felons who have served their sentences, completed parole or probation and paid restitution.
Murderers and sex offenders would be excluded under the measure, which will appear on the ballot as Amendment 4. But it remains unclear whether voters will agree to the changes.
Florida’s current system is not only burdensome, it’s unconstitutional, according to Walker, who last month found that the process gave too much discretion to the clemency board.
Thirty-eight states automatically restore voting rights for most felons, and two states – Maine and Vermont – even allow prisoners to vote from behind bars.
Automatically restoring the right to vote for convicted felons in Florida could add between 600,000 and 1.6 million voters to the state’s voting rolls, according to national voting-rights experts.
Nationwide, about 3 million people living in communities have had their voting rights stripped, and more than one-third of those former felons live in the Sunshine State, according to Sean Morales-Doyle, a lawyer who works for the Brennan Center for Justice’s Democracy Program.
Florida is an outlier because of its restrictive voting-restoration process and because of the “sheer volume” of people who are affected, Morales-Doyle told The News Service of Florida.
Florida’s system is “broken,” Morales-Doyle said.
While Walker did not lay out a new process or establish new time limits, the judge ordered the board to move forward with time constraints “that are meaningful, specific, and expeditious.”
“Absent extraordinary circumstances, this court cannot conceive of any reason why an applicant at any point must wait more than one election cycle after she becomes eligible to apply for restoration,” the judge wrote.
‘Sunshine and rainbows’
Walker’s order found that the restoration-of-rights portion of Florida’s Constitution, along with the executive clemency rights-restoration process, run afoul of the U.S. Constitution.
Relying on a footnoted quote from legendary screen character Rocky Balboa, Walker mocked the defendants, writing that they claimed “the current scheme is all sunshine and rainbows.”
And Walker invoked history as a lesson in the significance of “free association and free expression to choose public officials” to represent people and advance public policy.
“These interests are why Americans launched a revolution against perceived unfettered discretion in the hands of one high-ranking official, King George III,” Walker wrote.
Walker also cautioned that there is a risk that the clemency board “may engage in viewpoint discrimination through seemingly neutral rationales” such as traffic citations or a “perceived lack of remorse” that “serve as impermissible” masks for censorship.
“Therefore, the board must promulgate specific standards and neutral criteria to direct its decision-making,” Walker ordered.
The standards and criteria “cannot be merely advisory, a Potemkin village for anyone closely reviewing the scheme,” the judge elaborated, instructing the board not to rely “on whims, passing emotions or perceptions.”
“Establishing safeguards against viewpoint discrimination should be the board’s paramount goal following this order,” Walker instructed.
Walker also took note of “problems of potential abuse,” especially when clemency board members – who are statewide elected officials and who may be running for re-election or another office – “have a personal stake in shaping the electorate to their perceived benefit.”
Walker ordered the clemency board to devise a constitutionally sound program with “specific, neutral criteria that excise the risk – and, of course, the actual practice of – any impermissible discrimination, such as race, gender, religion or viewpoint.”
Walker also rejected arguments that the clemency board can’t handle what could be hundreds of thousands of applications for rights restoration.
“It is no excuse that the board lacks resources to abide by the federal Constitution’s requirements. If the board pursues policies that sever hundreds of thousands of Floridians from the franchise and, at the appropriate time, hundreds of thousands of Floridians want their voting rights back, the board must shoulder the burden of its policies’ consequences,” Walker wrote. “They cannot continue to shrug off restoration applications indefinitely.”
Dara Kam of the News Service of Florida contributed to this report.