There were some fast-moving developments this past week in the ongoing debate over restoring felon voting rights in the state of Florida.

This week was supposed to be the deadline for Governor Rick Scott and the State’s Clemency Board to craft a new plan for restoring voting rights for felons after a Federal judge in Tallahassee ruled in February that the state’s current framework is unconstitutional.

After calling a last-minute emergency meeting for Wednesday night, just hours before the plan was supposed to be presented to Judge Mark Walker – the 11th Circuit Court of Appeals stepped in — putting everything — including the voting rights of more than 1.6  million potential voters — on hold.  In granting a stay on the Judge Walker’s ruling to come up with a new plan, the judges at the 11th Circuit already believe that Scott has a winnable case to keep the current plan in place, stating that the Governor and the Clemency Board have broad discretion in restoring or “re-enfranchising” the rights of felons.

Now, with a Constitutional Amendment already on the November ballot for Florida’s voters to decide if most felons should automatically have their voting rights restored when their entire sentence is completed, the question now becomes who will make the right decision on a very important and fundamental issue – the voters or the courts.


 

THE CURRENT CLEMENCY SYSTEM

The State’s Clemency board is made up of Gov. Scott, Attorney General Pam Bondi, Agriculture Commissioner (and current Republican candidate for governor) Adam Putnam and Chief Financial Officer Jimmy Patronis.  Together the Board oversees the various processes of “re-enfranchising” convicted felons including granting pardons, commuting (shortening) sentences, restoration of voting rights, restoring the right to bear arms and other rights that convicted felons automatically lose.  

Florida is only one of three states, along with Kentucky and Iowa, that still has no process whereby rights are restored without authority of only the governor or a Clemency Board.  In 2007, then-Governor Charlie Crist changed the clemency rules to streamline the process for restoring voting rights to non-violent offenders.  According to the Brennan Center for Justice at the New York University School of Law, a leading watchdog on the restoration of felon voting rights, by 2008 more than 115,000 people had their right to vote restored.

After Scott was elected in 2011, he along with the rest of the board, including Attorney General Bondi, changed the clemency rules  to impose a blanket five year waiting period for felons to apply for clemency, including the right to vote, but excluded more than 70 classes of felony convictions where people would have to wait seven years from the completion of their entire sentence to apply.  Since then, the Brennan Center estimates approximately 3,000 people have had their rights restored. 

Included in that class of felonies that automatically go in the 7-year waiting period, which requires a hearing at one of the four Clemency Board hearings held in Tallahassee every year under their rules, are all first and second-degree felonies.  Some common examples of second-degree felonies include burglary of a dwelling (residence), whether or not anyone is home.  There is also the crime of “Dealing in Stolen Property,” otherwise known as illegally pawning any item without the owner’s permission.  A common example of this is stealing and pawning something as simple as a gaming system or a flat-screen TV in order to get money to feed someone’s drug addiction.  Another example “Delivery” of a controlled substance, legal-speak for selling drugs whether it is a single oxycodone pill, a gram of cocaine, or possibly reclassified to Trafficking (a first-degree felony) for selling a larger quantity of certain classes of drugs.  It only takes one conviction, and sometimes one person’s lack of judgment on one occasion that makes them a convicted felon. Only one.

If a person is granted a hearing, the felon’s appearance before the Clemency Board is limited to 10 minutes under their current rules.  That includes a five-minute time limit for the applicant/felon to make a statement, then statements by anyone else the person wants to testify.  Other factors the Board takes into consideration include drug or alcohol use since release or completion of sentence, whether the person has illegally voted since they had lost their rights, employment status, family life, attitude during the hearing, whether the applicant has shown remorse and turned their life around.  There is no time limit on when the Board needs to make a decision.  As noted in the current lawsuit, that time frame can drag on for years as the Board may investigate statements made by the applicant or choose to verify information presented in considering whether or not to restore that person’s right to vote.

FEDERAL COURT JUDGE FINDS THE PROCESS UNCONSTITUTIONAL

In February, in what Judge Mark Walker of the Northern District of Florida called a “case of first impression,” Walker declared the process used by the Clemency Board to be unconstitutional for several reasons that he laid out in a scathing decision, taking direct aim at Governor Scott’s position that the Courts should not interfere in matters related to Clemency.

The Court looked at several fundamental Constitutional rights that the current process violates when it comes to restoring the right to vote.  Judge Walker took a narrower approach to the right to vote, examining what rights are included in the broader idea of going to the polls and casting a ballot.  Among those rights under the First Amendment, are freedom of speech, freedom of expression and the right of free association. From a voting perspective, the judge ruled that these three rights comprise the right to vote and include someone’s decisions when it comes to choosing a political party, endorsing a candidate, campaigning and supporting that candidate, banding together with other supporters and ultimately voting on election day.  Judge Walker historically looked at the power of people voting in order to vote people out of the office to effect change, drawing a clear line that the current clemency rules disenfranchise the more than 1.6 million felons who could have their rights restored based on race and political bias on the part of the Clemency Board.

Additionally, Judge Walker ruled the process to be unconstitutional for violating the 14th Amendment rights to equal protection and due process – in other words, everyone deserves to be treated equally at some point and have the same ability to have their rights restored. In addition to the actual process of being granted a hearing, the Judge took issue with the length of time it could possibly take for the Board to make a final decision on restoring an applicant’s right to vote. Some of the examples cited by the court range from four to eleven years before a decision was handed down.  In one case referenced, a woman waited 10 years before being told her rights were not going to be restored. In yet another case, a man was released from prison in 1985 but his request for his voting rights was denied because he illegally voted in 1985. The judge goes on to call the entire process “arbitrary and capricious” while declaring that the current plan “crumbles” under the strict scrutiny standard, the highest standard of review used by the courts in deciding cases.

THE STATE’S APPEAL

In its appeal of Judge Walker’s decision, the State accuses the court of basing its ruling on unsubstantiated claims of discrimination. Additionally, in one example cited by the judge involving a man whose rights were restored who admitted he illegally voted for Gov. Scott, the State points to videos of that particular hearing stating that they had other grounds to restore his right to vote other than his political support for the Governor.  

The Governor and the Board maintain that the courts have no authority to challenge review of the clemency process because of the “unfettered discretion” they have by way of executive authority.  They maintain that many of the accounts relied on by the court when it comes to the hearing process and waiting for a decision by the Board are anecdotal and not factual accounts from actual hearings. 
In issuing the stay that put Judge Walker’s order on hold that the Board come up with a new plan by last Thursday, the 11th Circuit Court of Appeals appears to side with the broad authority of the Governor and the Clemency Board, relying on a 1969 Supreme Court of the United States that already decided that the broader pardoning authority was constitutional in Florida.  A number cases relied on by the 11th Circuit also address that broader power, as opposed to the very narrow focus of Judge Walker’s decision on the restoration of voting rights.   The Court correctly points out that the 14th Amendment does allow states to strip convicted felons of their rights, but it is silent on how long that should be allowed to go on for, the other big issue addressed by Judge Walker.

Additionally, the appeals court relies on the notion that a clemency process can be unconstitutional if had the intended purpose and effect was to be racially discriminatory whereas Judge Walker found that if the process allows that effect to happen, it should not be allowed.

END GAME

While the 11th Circuit Court is set on hearing the full appeal and appears poised to side with the Governor, for now, those backing the ballot initiative for Amendment 4 to automatically restore most felons voting rights gathered more than 799,000 signatures – some 30,000 more than they needed under the state’s rules for constitutional amendments. Polling on the issue shows that more than 60% of Floridians support the amendment which would exclude those convicted of murder and sexual battery charges.  

In order to become law, 60% of voters would need to vote in support of the amendment in November.  If the amendment passes, the court case would be moot, and Fair Elections Center tells 8 On Your Side it would file a motion to voluntarily dismiss the case.