U.S. District Judge in Tallahassee ruled that Florida’s process for restoring voting rights to convicted felons violates the constitution, but has not yet ordered a remedy

U.S. District Judge Mark E. Walker in Tallahassee has ruled that Florida’s process for restoring voting rights to convicted felons violates both the First and Fourteenth Amendments. The implications of the ruling, however, may not be so far-reaching since the judge hasn’t yet decided on a specific remedy.

The Order (pdf.) is embedded at the bottom of this post.

Florida is one of four states where people convicted of a felony are permanently barred from voting unless their franchise is individually restored. In the Sunshine State, this process is overseen by a clemency board consisting of the governor and three other high-ranking statewide officials. The governor wields a veto over the process and can deny applications for any (or no) reason at all.

(In Florida’s three companion states—Virginia, Iowa and Kentucky—re-enfranchisement is entrusted exclusively to the governor. Florida has more disenfranchised felons than any other state: about 1.5 million.)

Judge Walker wrote that Florida’s scheme “crumbles under strict scrutiny because it risks—if not covertly authorizes the practice of—arbitrary and discriminatory vote-restoration.” And in Florida, the “risk of viewpoint discrimination is distressingly real,” Walker observes, concluding that “even the risk of viewpoint discrimination runs afoul of the First Amendment.”

In reaching this assessment, the judge relied on evidence submitted by the Plaintiffs, and suggested the process had been corrupted by racial bias.

The Governor asked one former felon, Steven Warner, about an illegal vote he cast in 2010—before his voting rights were restored. “Actually, I voted for you,” Warner responded. The Governor restored Warner’s voting rights. But Plaintiffs identify five former felons who, at other points, were questioned about illegal ballots cast and then rejected on that basis. It is not lost on this Court that four of the five rejected applicants are African-American. (internal citations omitted)

On the Fourteenth Amendment claim, Walker also agreed with the Plaintiffs.

What is not permissible is a scheme unmoored from any constraints, guidelines, or binding procedures that permit Florida officials to make “completely arbitrary distinction[s] between groups of felons”—or worse. Partisan officials’ unfettered discretion cannot cull “responsible voters” to include only those voters that might benefit their political party. Such a scheme would, at best, be “arbitrary and disparate.” At worst, the scheme would be discriminatory. (internal citations removed)…Florida’s scheme violates the Fourteenth Amendment.

Media outlets (including the AP) and Twitter commentators initially misreported the ruling, claiming that Walker struck down Florida’s prohibition against felons voting.

Breaking: A federal judge has ruled that Florida's lifetime ban on restoring voting rights of convicted felons violates the constitution https://t.co/IOZaW81gb0 — Andrew Weinstein (@Weinsteinlaw) February 1, 2018

BREAKING: Florida’s lifetime ban on voting by felons is unconstitutional, federal judge rules https://t.co/XLMncdcrqw pic.twitter.com/aiLiPJhvsl — Miami Herald (@MiamiHerald) February 1, 2018

Walker actually rejected the constitutional challenge to Florida’s ban, noting that the Supreme Court has upheld a state’s right to disenfranchise felons, and that the 11th Circuit sustained Florida’s practices in particular.

It is well-settled that a state can disenfranchise convicted felons under Section Two of the Fourteenth Amendment. Richardson v. Ramirez, 418 U.S. 24, 56 (1974). “Florida’s discretion to deny the vote to convicted felons is fixed by the text of § 2 of the Fourteenth Amendment.” Johnson v. Bush, 405 F.3d 1214, 1228 (11th Cir. 2005) (en banc).

The issue is whether, once a state decides to restore voting rights to individuals, its process for doing so is constitutional.

In this respect, Walker’s analysis is groundbreaking, no doubt (see the thread below), drawing partially on the Supreme Court’s opinion in Citizens United.

Wow, on First Amendment theory. The judge basically holds that right to vote is as much campaign free speech as anything that Supreme Court has protected in Citizens United, and so regulation of that right is subject to heightened scrutiny. I confess I have not seen this before. https://t.co/yqFOjcLNex — Sasha Samberg-Champion (@ssamcham) February 1, 2018

But in general, district court opinions on constitutional issues are politically impactful only if they take immediate effect and bar (or, increasingly, require, see: DACA ruling in San Francisco) a significant policy initiative. Otherwise, the decisions are pretty much always appealed, and either a circuit court or (occasionally) the Supreme Court ultimately resolves the issue.

So the question then is: what practical effect does this ruling immediately have?

It’s not totally clear. Walker did not grant an injunction, instead directing parties to brief the issue by February 12.

Having determined that Florida’s vote-restoration scheme is unconstitutional, this Court must determine the appropriate relief. This Court could simply issue a judgment for declaratory relief. As for injunctive relief, this Court cannot issue an order that is tantamount to saying “act right”…The parties have so far not adequately briefed this Court on remedies.

In temporarily withholding injunctive relief, Walker appears to avoid forbidding Florida from restoring voting rights to anyone in the interim.

The vote-restoration process is constitutionally infirm, but in so finding, this Court has effectively prevented otherwise eligible felons from seeking restoration under Florida’s unconstitutional scheme….This Court will not prevent—even briefly—the express preferences of Florida’s Constitution without giving the parties an opportunity to address the appropriate remedy.

Walker’s decision does not affect the November ballot initiative in Florida to automatically restore voting rights to all convicted felons who have served their sentences and meet other conditions.

The judge is absolutely right that Florida’s system for restoring rights is manifestly unfair and capricious. The Eleventh Circuit will probably have a say on whether or not that injustice is actually constitutional violation.

But even if there’s no legal infirmity, the Florida legislature should voluntarily make the process more predictable and independent of the state’s political system—assuming, of course, that the November initiative doesn’t pass and moot this whole debate.

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Hand v. Scott – Florida Felon Voting Order by Legal Insurrection on Scribd



