Judge: Florida's voter restoration process unconstitutional

In a landmark ruling with far-reaching implications, U.S. District Judge Mark Walker has found Florida's scheme for restoring the voting rights of felons unconstitutional.

Walker, in a 43-page order issued today, found that Florida "automatically disenfranchises" any individual who has been convicted of a felony and wishes to vote.

"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."



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The ruling came as part of a lawsuit brought by James Michael Hand and eight other felons who completed their sentences, including probation, but were not deemed eligible to vote.

"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," Walker continued. "The question now is whether such a system passes constitutional muster. It does not."

Walker, who sits on the bench in the Northern District of Florida in Tallahassee, took aim at Gov. Rick Scott, whom the nine plaintiffs sued along with Florida’s Executive Clemency Board. The board consists of the governor, the attorney general, the chief financial officer and the agriculture commissioner.

“ ‘We can do whatever we want,’ the governor said at one clemency hearing,” Walker wrote. “One need not search long to find alarming illustrations of this scheme in action.”

Walker highlighted a 2010 case, in which Steven Warner, a white man, cast an illegal ballot. Three years later, he sought the restoration of his voting rights before the state’s Clemency Board. Gov. Scott asked him at the time about his illegal voting. When the man said he voted for Scott, the governor laughed. A few seconds later, Scott granted the man his voting rights.

"The question is whether the Clemency Board's limitless power over plaintiffs' vote restoration violates their First Amendment rights to free association and free expression. It does," Walker wrote. "This should not be a close question."

The Governor's Office responded to the order by noting that the Clemency Board 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," said John Tupps, a spokesman for Scott. "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 Fair Elections Legal Network and Cohen, Milstein, Sellers & Toll, which has offices in Florida, filed the lawsuit in March on behalf of a proposed class of nearly 1.5 million felons, according to a news release from the voting rights group and the law firm.

“Today a federal court said what so many Floridians have known for so long — that the state’s arbitrary restoration process, which forces former felons to beg for their right to vote, violates the oldest and most basic principles of our democracy,” said Jon Sherman, senior counsel for the Fair Elections Legal Network.

Tallahassee attorney Reggie Garcia, who represents felons who seek restoration of their rights, said any federal court ruling that interprets Florida’s constitution and the application of clemency power and rules will increase awareness of the state’s felons.

“This is very timely with last week’s decision by the Division of Elections to put Amendment 4, granting automatic voting rights to most felons, on the November 2018 ballot,” he said.

Walker noted several instances "of former felons who professed political views amenable to the board's members, who then received voting rights, while those who expressed contrary political views to the board were denied those same rights."

He went on to say that "viewpoint discrimination is deeply antithetical to the Constitution and our nation's longstanding values."

Hand, a resident of Cutler Bay in South Florida, was convicted of a felony in state court and released from prison in 1986, according to court records. He completed his sentence in 2002 and later applied to get his voting rights back.

During a Clemency Board hearing in 2011, his application was denied. Gov. Scott cited his record of traffic tickets and said, “Congratulations on turning your life around. Congratulations on your business. In light of the significant issue — you know, traffic violations — and your inability to comply with the law in that manner, I’m going to deny you restoration of civil rights at this time," court records stated.

Walker also found the lack of time limits in processing and deciding vote restoration unconstitutional. He noted the Clemency Board “may defer restoration of rights for years or forever."

"Indefinite can-kicking is not some Floridian fairy tale like a line-less Space Mountain," he wrote. "The board regularly invokes some unknown future date as the appropriate time to revisit a restoration denial.”

He cited one case in which Gov. Scott told a 54-year-old man he would have to wait 50 years before he could reapply for his voting rights to be restored. The judge also detailed the case of Virginia Kay Atkins. Ten years after her release from prison, Scott informed her he did not feel “comfortable” restoring her rights.

Walker's order notes that 154,000 citizens had their voting rights restored during the last four years of former Gov. Charlie Crist's administration. He said that number plummeted to fewer than 3,000 people since Scott took office in 2011.

"The context of these numbers is not lost on the court," Walker wrote. "More than one-tenth of Florida's voting population — nearly 1.7 million as of 2016 — cannot vote because they have been decimated from the body politic. More than one in five of Florida's African American voting-age population cannot vote."

Walker did not offer a remedy but set a Feb. 12 deadline for both sides to provide additional briefs on how to fix the unconstitutional “voter-restoration scheme.”

Check back with Tallahassee.com for more on this story.

Read the full ruling here.

Contact Jeff Burlew at jburlew@tallahassee.com or follow @JeffBurlew on Twitter.