One out of 10 adults in Florida can’t vote because of a felony conviction.

This is because Florida is one of four states — along with Iowa, Kentucky and Virginia — that permanently disenfranchises ex-felons for life. In Florida, that's over 1.5 million people. As determined by the state's constitution, the only way to get voting rights restored to an ex-felon is by petitioning the clemency board, which has unfettered discretion to restore civil rights to ex-felons. The clemency board also has wide discretion in granting hearings — meaning an ex-felon’s request can languish for years.

But all that might change on July 25, when the 11th Circuit will hear an appeal in Hand v. Scott, a case that wants to change the process that Florida uses to restore voting rights for ex-felons. Earlier this year, the plaintiffs in Hand v. Scott — ex-felons who had served their time and were seeking to have their civil rights restored — argued that the standardless process used by the Florida clemency board to restore voting rights violates the equal protection clause of the 14th and 1st amendments. On February 1, 2018, U.S. District Judge Mark Walker wrote an opinion agreeing with the plaintiffs:

One out of 10 adults in Florida can’t vote because of a felony conviction.

"A person convicted of a crime may have long ago exited the prison cell and completed probation. Her voting rights, however, remain locked in a dark crypt. Only the state has the key — but the state has swallowed it. Only when the state has digested and passed that key in the unforeseeable future — maybe in five years, maybe in 50 — along with the possibility of some virus-laden stew of viewpoint discrimination and partisan, religious, or racial bias, does the state in an ‘act of mercy,’ unlock the former felon's voting rights from its hiding place."Judge Walker ruled that the standardless process used by the clemency board violated equal protection, because it treats potential voters unequally — thus violating precepts articulated in Bush v. Gore, 531 U.S. 98 (2000) , which said, "The right to vote is protected in more than the initial allocation of the franchise... Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another." Judge Walker also determined that "partisan officials' unfettered discretion cannot cull 'responsible voters' to include only those voters that might benefit their political party."

Furthermore, Judge Walker found that the clemency board’s system violated the 1st Amendment because "[u]nfettered executive discretion imposes serious burdens on Plaintiffs’ First Amendment rights to free association and free expression." The court also noted the risk of viewpoint discrimination: When a white ex-felon convicted of illegal voting told Governor Rick Scott, who sits on the clemency board, that he’d used his vote to vote for him, the ex-felon had his voting rights restored. Meanwhile, many similarly situated African American ex-felons have been denied the same.

In March 2018, the district court ordered Gov. Scott to dismantle Florida’s system and to replace it by April 26, 2018. But shortly after the state lost the case, it filed for stay — i.e., to halt all further legal proceedings — pending an appeal with the 11th Circuit. The 11th Circuit agreed that the state had made its case, and granted the stay, pending an appeal on the merits in Atlanta on July 25, 2018.

Floridian voters have a once-in-a-lifetime chance this November to change the Florida constitution.

It’s worth noting that, in granting the stay, the 11th Circuit had to wrestle with the odd jurisprudence around felony disenfranchisement, which goes all the way back to the penalty clause in the 14th Amendment, Section 2 . Originally, this part of the Constitution was meant to incentivize southern states not to bar black men from voting after the Civil War. Under the clause, if a state barred a large percentage of men from voting, the state’s representation in the House of Representatives was to be reduced proportionally. But when calculating the reduction, the clause specifies that the state should not count barred individuals who have been disenfranchised for "participation in a rebellion, or other crime." Over time, "or other crime" became a key point of debate — and eventually led the Supreme Court to conclude that the 14th Amendment specifically sanctions felony disenfranchisement by the 50 states.

There is one exception to this ruling, however: In Hunter v. Underwood, the Supreme Court determined that disenfranchisement laws can’t be used for invidious racial discrimination — but good luck proving that one in court. It’s been tried many times, and every case has ended with the judge or justice determining that they couldn’t find enough racial animus to justify throwing out a particular state law. (This is what happened in Johnson v. Bush in 2005, when the 11th Circuit did not find enough racial animus in Florida’s felony disenfranchisement to rule that it was unconstitutional.)

But whether or not the 11th Circuit affirms the lower court and makes Florida restore voting rights in a more rational way this time around, there’s hope. Because no matter what happens in Hand v. Scott, Floridian voters have a once-in-a-lifetime chance this November to change the Florida constitution. For Florida voters who think that individuals who have served their debt to society should have their voting rights automatically restored, they can vote "yes" on Amendment No. 4 this fall — and change this outdated law for good.

Ciara Torres-Spelliscy is a Professor of Law at Stetson University College of Law, the Chair the AALS Section on Election Law and a Brennan Center Fellow. She is the author of the book " ."

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