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Florida’s process for restoring felon voting rights ruled unconstitutional, but what comes next?

Florida’s process for restoring felon voting rights ruled unconstitutional, but what comes next?

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.

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.

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.


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


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notamemberofanyorganizedpolicital | February 1, 2018 at 10:17 pm

Sorry, ot, but breaking.

“Executive Branch Will Declassify Intel Memo Without Redactions, Returning To HPSCI Today…”

“Meanwhile, as the media comprehends the significant consequences to full public disclosure of the Justice Department’s intentional weaponization, they are apoplectic amid a reality of the ensnared Obama administration officials outlined within the corruption.

“There is a palpable, and highly visible, sense of desperation amid all of the former officials within Main Justice and the Federal Bureau of Investigation. Example: Eric Holder tweets….

“Democrats are desperate and thrashing wildly while trying to find some method, manner or procedure to stop the sunlight….

    notamemberofanyorganizedpolicital in reply to notamemberofanyorganizedpolicital. | February 1, 2018 at 10:55 pm

    MonicaCrowley: “This is the first of several memos. As bad as bad as this memo might be, my understanding is that there is worse coming down the pike.” #ReleaseTheMemo

      notamemberofanyorganizedpolicital in reply to notamemberofanyorganizedpolicital. | February 1, 2018 at 10:56 pm

      Kimberley Strassel‏Verified account @KimStrassel

      1) I’ve covered politics a long time. I’ve never–never–seen anything approaching the desperations Ds have to keep this memo quiet. And as we know that worry about law enforcement (Snowden/Manning) is not their biggest worry, this memo must be damning to the core.

The decision is ridiculous. Consider the federal level: If there is one constitutional principle that is more firmly established than any other, it’s that clemency is at the president’s absolute and utter discretion. He is allowed to be unfair and capricious, and he’s allowed to use it for naked political gain. He can probably even use it for personal financial gain; if Congress disapproves it can impeach him, unless he’s already gone.

The same is true in most states; clemency is utterly at the governor’s discretion. There are states that limit this, but this is the norm, and clearly the US constitution can have no objection.

If this ridiculous decision stands then it would automatically invalidate the systems of the other three states as well, since if a governor plus commission is arbitrary and capricious, how much more so a governor acting alone.

But then the same objection could be made in all states, and on the federal level. After all, there is no constitutional right to vote, but there is one to walk free, and yet in the USA and almost every state it’s entirely up to the president or governor who goes free and who stays in prison, and he’s free to be arbitrary about it, or to favor his supporters. How can this be allowed, if this decision is left standing?

    gospace in reply to Milhouse. | February 1, 2018 at 11:49 pm

    Don’t you see it’s obvious? The only thing the Constitution allows for is rule by judges! They can override any legislature, citizen referendum, state constitution, and interpret the federal constitution to mean anything they want. That’s what happens when words don’t have any meaning except in the Alice in Wonderland sense.

    “When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.” “The question is,” said Alice, “whether you can make words mean so many different things.” “The question is,” said Humpty Dumpty, “which is to be master— that’s all.”

    Jared Samilow in reply to Milhouse. | February 1, 2018 at 11:53 pm

    Interesting points. It’s not the entire clemency system that’s been challenged — just the process for restoring voting rights. That is, I don’t think anyone is arguing that Florida’s system for granting pardons and clemency—which is done using the same process as voter restoration—is unconstitutional as well.

    So the judge’s argument seems to be that, because voting in particular is such a fundamental right, its restoration can’t be governed by an arbitrary process.

    I’m obviously not a constitutional law scholar and therefore can’t tell you how compelling the argument is. I think the 11th circuit will likely get the final word.

    Legalities aside, I think the process is really not a sound or ethical way of deciding who gets to vote. There should be some guidelines or standards that guide the board, and the process should be automatic assuming the applicant meets certain objective criteria. In general, I reject the idea of people being permanently turned into second-class citizens based on a debt they’ve already paid.

    Only 4 states still officially maintain this practice—in reality, just 3 since the Democratic government in VA is using the clemency process to re-enfranchise people.

      Milhouse in reply to Jared Samilow. | February 2, 2018 at 1:40 am

      Restoring voting rights is clemency. It’s exactly the same as commuting a sentence, which is restoring to a felon the right to walk free.

      But you’re wrong to think that voting is a “fundamental right”. It’s not a constitutional right at all. This surprises some people who’ve never read the constitution carefully, but it’s a fact: the US constitution does not recognize any such a thing as a right to vote. States can still deny the franchise for any reason they like, except for race, color, sex, age over 18, previous condition of servitude, or failure to pay taxes. It’s entirely reasonable for a state to decide that someone who has once shown contempt for the law does not deserve the privilege of a say in making the laws.

        Jared Samilow in reply to Milhouse. | February 2, 2018 at 2:15 am

        When I said clemency, I was referring to pardons and commutations of a sentence, as distinguished from the restoration of civil rights (i.e. voting and jury service).

        I agree with you that it’s logically difficult to say: “The restoration of voting rights cannot be arbitrary and capricious, but pardons and commutations can.”

        The judge quotes Citizens United to conclude that ““[V]oting is, among other things, a form of
        speech.” Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 425 (Stevens,
        J., concurring in part and dissenting in part)…In the absence of binding precedent holding that the right to vote is
        wholly independent of the right to free expression, this Court finds persuasive
        the idea that “[t]he First Amendment protects more than just the individual
        on a soapbox and the lonely pamphleteer.” Citizens United, 558 U.S. at 373
        (Roberts, C.J., concurring)…”

        From this Walker concludes:

        “It is inconsistent to find that corporate expenditures spent during a campaign or filling out a voter-registration form are core expressive
        activities, but that voting—the end-result of these other protected activities—
        is non-expressive. ”

        So while under the Constitution, the right to vote is not fundamental like, say, the right to a jury
        trial—as you rightly point out—Walker seems to be holding that it is, in fact, more fundamental than the Constitutional text would suggest.

        Again, I’m not taking a position on whether or not his analysis is correct. Just trying to explain it.

          Milhouse in reply to Jared Samilow. | February 2, 2018 at 2:57 am

          When I said clemency, I was referring to pardons and commutations of a sentence, as distinguished from the restoration of civil rights (i.e. voting and jury service).

          They are literally the same thing. Not just similar, not even identical but different; restoring civil rights is an exercise of the clemency power. When a criminal is sentenced, loss of civil rights is part of the sentence, and restoring them is removing that part of the sentence. That’s how it works.

          The argument from Citizens United is so stupid the judge is either being dishonest, or he truly doesn’t understand that finding, and is therefore groping in the dark for its meaning. Of course voting is a form of speech, just as campaigning is. But there is no more a right to vote in the elections conducted by the State of Florida than there is a right to publish articles in the New York Times, or on Legal Insurrection. Or, put another way, as a citizen of New York Citizens United says I have the right to express my opinion on who should be the governor of Florida, and to campaign as much as I like for that person, but it does not say I have the right to cast a ballot in Floridian elections. The same is true for Floridian felons.

    Jingo in reply to Milhouse. | February 2, 2018 at 2:57 am

    I agree. It’s no different than a pardon or commutation. imagine a governor who proclaimed, “I will only pardon white offenders.” And then he pardoned 1000 white offenders. So, some non-white offenders sued in federal court. What remedy could the court give? Invalidate the pardons? Direct the governor to pardon 1000 non-white offenders (or whatever number ensured a “fair”, appropriate ratio)?

    The court acknowledges that Florida could legally disenfranchise all felons for life and offer them NO means to restore their voting rights. Even the judge here offers no remedy and asks the parties to suggest one. If the system is unfair, then recourse is to the Legislature, not the courts.

    mrGAB444 in reply to Milhouse. | February 2, 2018 at 7:16 am

    Florida is toast anyway, along with many other red states just a matter of time. Liberals have destroyed their blue states (California, CT, NY, etc.) by prioritizing their idiot egalitarian utopia ideology over common sense resulting in high taxes, unsustainable government pension debt., burdensome regulations and sanctuary welfare programs.

    Blue state businesses and retirees are fleeing to red, low tax states. The problem is they are bringing their liberal, left progressive poison with them. You cannot convince them of reality, very intelligent people but with a mental illness called liberalism.

First Amendment, huh? Bloody magic—there’s nothing it can’t do.

Except in this case.

Speech is communication. Something someone else can hear. Something someone else can read, or see.

Therefore a vote by secret ballot is not speech. And so the First has nothing to say about it.

The judge is probably on more solid ground with the 14th. Not all “conscious or deliberate” decisions should be legal.

But I’m seeing more here. The judge is laying some groundwork. The “arbitrary and discriminatory” attack can be used against any conscious or deliberate decision or action, including restriction on voting. Any qualification for voting rights is by its nature “discriminatory”, even if not on racial grounds. The Progressive judiciary wants to declare voting by non-citizens legal. Judge Walker is an Obama appointee, maybe just doing his bit to advance the cause.

    Milhouse in reply to tom_swift. | February 2, 2018 at 3:00 am

    Nope. Voting in secret, is speech, just as publishing an article anonymously is speech. The fact that votes are only reported in aggregate doesn’t change that.

So what about their Second Amendment rights?

Just a few thoughts here.

I view Judge Walker’s decision as an attempt to thread a legal needle. He is attempting to dissolve Florida’s practice of suspending the voting rights of convicted felons, after they have been released from prison. But, there is nothing illegal about such a suspension. Just as released felons, and other criminals, can be prohibited from certain actions for life, while in the state which convicted them [child molesters, where children are concerned; computer hackers and criminals can be barred from using the internet]there is no legally justifiable reason why felons, in general, can not be denied the ability to vote, in their state of conviction. The judge knows this, So, he attempts to say the process for restoring this right is somehow unfair and therefor has to be changed in some undetermined fashion to make it fairer. What would be interesting is if the State simply said it would stop all restoration of voting rights for felons, thus making it totally fair in its application. The judge makes an attempt to stifle this possibility by attempting to equate the act of voting with protected free speech, thus requiring a heightened level of judicial scrutiny. However, the courts have long held that free speech is not universal. And, any action, taken in the name of free speech, may not unduly affect the rest of society. A man can protest from a sidewalk, but can not block the sidewalk, or he faces arrest. Likewise, allowing a convicted felon to vote, adversely affects the right of non-criminal citizens from effectively exercising their Constitutional franchise. It is the equivalent of allowing one group of picketers to strike members of an opposing group over the head with their signs, making it impossible for them to exercise THEIR right to free speech. Voting is action, not words, and actions have always been subject to more restriction under the 1st Amendment than words.

This judge is pushing for automatic restoration of voting rights. This is unconstitutional!

Where I’m at if you keep your nose clean for seven years AND with the agreement of the prosecuting attorney you can get your record expunged/sealed and get your rights back.