Florida’s lifetime ban on voting by felons is unconstitutional, federal judge rules

February 2, 2018

TALLAHASSEE - The state of Florida routinely violates the constitutional rights of its citizens by permanently revoking the “fundamental right” to vote for anyone convicted of a felony, a federal judge ruled Thursday.

U.S. District Judge Mark Walker said the Florida “scheme” unfairly relies on the personal support of the governor for citizens to regain the right to vote. In a strongly worded ruling, he called the state’s defense of voter disenfranchisement “nonsensical,” a withering criticism directed at Gov. Rick Scott, the lead defendant in the case.

“Florida strips the right to vote from every man and woman who commits a felony,” Walker wrote. “To vote again, disenfranchised citizens must kowtow before a panel of high-level government officials over which Florida’s governor has absolute veto authority. No standards guide the panel. Its members alone must be satisfied that these citizens deserve restoration. ... The question now is whether such a system passes constitutional muster. It does not.”

Walker wrote: “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. 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.”

The judge condemned a system that he said gives “unfettered discretion” to four partisan politicians, and cited as proof a comment Scott made at one hearing when he said: “We can do whatever we want.”

Scott did not immediately respond to requests for comment.

Scott’s spokesman, John Tupps, sent a statement via email after the ruling:

“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.

“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.”

The decision is by far the greatest legal setback for Scott, a two-term Republican governor who’s expected to run for the U.S. Senate.

Scott was the principal architect of the current system that requires all felons to wait at least five years after they complete their sentences, serve probation and pay all restitution, to apply for the right to vote and other civil rights.

Scott and the Cabinet, meeting as a clemency board, consider cases four times a year, and usually fewer than 100 cases each time. It can take a decade or longer for a case to be heard, and at present the state has a backlog of more than 10,000 cases.

Scott imposed the restrictions in 2011, soon after he was elected, with the support of three fellow Republicans who serve on the Cabinet, including Agriculture Commissioner Adam Putnam, now a leading candidate for governor.

Scott’s actions in 2011 reversed a policy under which many felons, not including murderers and sex offenders, had their rights restored without application process and hearings. That streamlined process was instituted in 2007 by former Gov. Charlie Crist, then a Republican and now a Democratic member of Congress.

“We’ve known this policy was unjust, and today a federal judge confirmed it’s also a violation of constitutional rights,” Crist wrote on Facebook.

Walker’s decision came nine days after the state approved a ballot measure that, if passed in November, would automatically restore the voting rights of about 1.2 million felons, not including convicted murderers and sex offenders.

That proposal will appear as Amendment 4 on the Nov. 6 ballot in Florida.

A leader of the initiative is Desmond Meade of Oviedo, a law school graduate of Florida International University and a convicted felon waiting to have his rights restored.

Meade said the judge’s decision validated the work of more than a million Florida voters who signed petitions that helped get the measure on the ballot.

“The system is broken, and now we know not only is it broken, but the courts are saying it’s unconstitutional,” Meade said.

Walker ruled that Florida’s lifetime ban on the right to vote violates the First and Fourteenth amendments to the U.S. Constitution, which are the guarantees of freedom of expression, due process and equal protection under law.

Throughout his 43-page ruling, Walker cited the arbitrariness of Florida’s system. Felons routinely have been denied their voting rights because they have received speeding tickets or failed to pay child support.

“So the state then requires the former felon to conduct and comport herself to the satisfaction of the board’s subjective — and frankly, mythical — standards,” Walker wrote. “Courts view unfettered governmental discretion over protected constitutional rights with profound suspicion.”

The judge issued an order of summary judgment on three of four counts in favor of Fair Elections Legal Network, a national voting rights group, and the law firm of Cohen Milstein Sellers & Toll.

They challenged the clemency system on behalf of James Michael Hand, a resident of Cutler Bay, and six other plaintiffs and a class of an estimated 1.5 million felons.

“No longer can politicians arbitrarily deny fundamental rights to citizens of the state of Florida,” attorney Theodore Leopold said.

The judge gave both sides in the case until Feb. 12 to file briefings on how to permanently remedy the constitutional deficiencies in Florida’s system.

Scott and Cabinet members are scheduled to hear the next round of clemency petitions in March.