Restoration of Voting Rights Federal Case

Written by Moses & Rooth on February 2, 2018

Florida’s continued punishment of felons long after they have served out their sentence has become a hot button issue. We discussed restoration of felon voting rights back in August of 2016 and this topic has continued to be argued in our state ever since then. In fact, Florida voters will have the opportunity to allow the restoration of felon voting rights on the November 6, 2018 ballot. This is big news and very important.

Now a Federal Judge has examined the restoration of voting rights in Florida and has found it to be unconstitutional. Judge Mark Walker found that Florida’s current scheme for “re-enfranchisement” violates both the First Amendment rights to free association and expression, and the Fourteenth Amendment’s Equal Protection Clause.

View Order on Cross-Motions for Summary Judgement

James Michael Hand, et al., Plaintiffs

vs

Rick Scott, et al., Defendants

From the very beginning of his option Judge Walker was very critical of the current process to restore voting rights. He starts his opinion:

Florida strips the right to vote from every man and woman who commits a felony. 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. Until that moment (if it ever comes), these citizens cannot legally vote for presidents, governors, senators, representatives, mayors, or school-board members. These citizens are subject to the consequences of bills, actions, programs, and policies that their elected leaders enact and enforce. But these citizens cannot ever legally vote unless Florida’s Governor approves restoration of this fundamental right.

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. One need not search long to find alarming illustrations of this scheme in action. In 2010, a white man, Steven Warner, cast an illegal ballot. Three years later, he sought the restoration of his voting rights. He went before the state’s Executive Clemency Board, where Governor Scott asked him about his illegal voting. “Actually, I voted for you,” he said. The Governor laughed. “I probably shouldn’t respond to that.” A few seconds passed. The Governor then granted the former felon his voting rights.

…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.

Judge Walker has ordered all parties to file a brief related to remedies and will then enter a final judgment after considering he additional briefs.

Governor Scott’s office issued a statement that indicated that the discretion of the clemency board over the restoration of voting rights had been in place for decades and over multiple governors. While technically this is accurate, the current scheme administered under the Scott administration is by far more restrictive than previous governors.