On Thursday, February 2, a federal judge declared Florida’s process for restoring voting rights to convicted felons unconstitutional, calling for immediate changes to a clemency process that he q risks being tainted by racial, religious, or political bias.
“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,” U.S. District Judge Mark E. Walker for the Northern District of Florida wrote in a 43-page decision, announcing he would issue a later ruling on how the state should fix the system. “To vote again, disenfranchised citizens must kowtow before a panel of high-level government officials over which Florida’s governor has absolute veto authority.”
“The question now is whether such a system passes constitutional muster. It does not.”
His decision has the potential to enfranchise over a million voters before the 2018 elections through a new clemency process, and may influence an existing campaign to amend the state’s permanent voting ban.
Almost all states deny incarcerated criminals the right to vote while imprisoned, but Florida is one of only four states to not automatically restore voting rights after felons have completed their sentences, along with Iowa, Kentucky, and Virginia. (In Virginia, Gov. Terry McAuliffe has restored voting rights to 168,000 ex-felons on a case-by-case basis.)
Florida’s constitution currently forbids anyone with a felony conviction from voting — unless the governor restores their rights through an arduous clemency process, described as “lengthy and arbitrary” in the ruling. As a result, a whole 10 percent of the state’s voting-age population — and 21 percent of its black adults — could not cast a ballot in 2016, The Sentencing Project reported.
To have their voting rights restored, former felons who have completed their entire sentences must appear before a clemency board consisting of Governor Rick Scott (R), the state attorney general, the chief financial officer, and the agriculture commissioner. The board meets only once a quarter, and after taking office, Gov. Scott imposed a period of five to seven years upon sentence completion before ex-felons are eligible to apply for voting rights restoration; receiving a response from the clemency board can take years. Then, many appear in person to personally beg for their rights back. Few are successful. As of early December, just 2,898 ex-felons saw their rights restored, while 10,264 people are still waiting for their applications to be reviewed. The entire process can take years and Scott retains absolute control over whether an ex-felon’s rights are restored.
Judge Walker, who was appointed to the bench in 2012 by President Barack Obama, cited one clemency hearing during which the Republican governor boastfully announced: “We can do whatever we want,” and another where Scott restored a felon’s rights instantly after the man said he voted illegally for him. Walker’s ruling noted that Scott has even rejected applications over traffic violations.
In his opinion, Walker said the state’s system for selecting who gets to vote again 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 determined.
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.
“A state may disenfranchise convicted felons,” the judge wrote. “A particularly punitive state might even disenfranchise convicted felons permanently. But once a state provides for restoration, its process cannot offend the Constitution.”
Walker ruled that the state’s clemency system violates the First and Fourteenth Amendments. He said that while the five to seven year waiting periods are acceptable, the “subjective” and “frankly mythical” standards for who gets approved or rejected are not. The process appears biased toward those who share the governor’s views, and against those who do not, he added.
“When the risk of state-sanctioned viewpoint discrimination skulks near the franchise, it is the province and duty of this Court to excise such potential bias from infecting the clemency process,” he concluded, calling for plaintiff and defendant to file briefings suggesting remedies by Feb. 12, at which point he will enter final judgement.
In his opinion, the judge 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.
Scott’s predecessors granted clemency much more often: Charlie Crist restored the voting rights of 150,000 ex-offenders in four years, while Jeb Bush granted clemency to 75,000 in eight years.
Governor Rick Scott’s communication director, John Tupps, said in a statement that Florida’s process for restoring voting rights to felons had been in place for decades and that Judge Walker’s ruling broke with U.S. Supreme Court precedent.
“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,” Tupps stated, adding that the office would fight the judge’s ruling in court.
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.