By: Zach McDonnell

In the 2018 midterm elections, Florida had such close elections that both its Senate and Governor’s races appeared headed for a recount, even several days after November 6. One election in the state, however, presented a resounding victory for a population that’s not used to seeing very many wins, in court or in the political process: convicted ex-felons. 64.5% of Florida voters approved of Amendment 4, a Florida state constitutional amendment that will automatically restore the voting rights of at least 1.4 million people—the single largest enfranchisement of Americans since the ratification of the Twenty-Sixth Amendment in 1971. Now, all felons—with the exception of those convicted of murder and felony sexual offenses—will automatically have their voting rights restored upon the completion of their sentences, including probation and parole. Those convicted of murder and sex offenses will instead be relegated to the restoration system that, prior to Amendment 4’s passage, all Florida ex-felons had to endure.

The pre-Amendment 4 rights-restoration process in Florida is known as perhaps the most restrictive restoration regime in the country. Under Article VI, Section 4 and Article IV, Section 8 of the 1968 Florida Constitution, Florida is one of only four states—Iowa, Kentucky, and Virginia being the others—that automatically disenfranchises a person upon felony conviction and does not restore those rights unless granted by the state executive. But unlike the rules in the other permanent-disenfranchisement states, Florida’s Rules of Executive Clemency impose an incredibly onerous process for such restoration. Per rule changes imposed by Governor Rick Scott in March 2011, an ex-felon wishing to have his or her rights restored must first wait years after the sentence is complete even before requesting restoration—five years for most nonviolent and nonsexual offenses (particularly non-trafficking drug charges), and seven years for violent, sexual, and repeat offenses.

Once the waiting period is finally over, the convicted individual must then apply for restoration—which, for many offenses, involves an in-person hearing that ex-offenders are encouraged and often required to attend. The hearing takes place in front of the board of the Office of Executive Clemency, which is composed of the Governor and his Cabinet: the Attorney General, the Commissioner of Agriculture, and the Chief Financial Officer—all of them elected officials, accountable to nobody except the Florida public at large. The board meets only four times per year and does so exclusively in the state capital of Tallahassee—a two-and-a-half-hour drive from Jacksonville, a four-hour drive from Tampa, and a whopping seven-hour drive from Miami. Once there, the applicant then has just five minutes to present his or her case to the board—and must do so, on camera, for Florida state television. The board, over which the governor has the ultimate authority, then decides whether to restore the applicant’s civil rights.

But the bases for those restoration decisions has been somewhat of a black box. Or as Governor Scott bluntly put it in a 2016 hearing, “There’s no law we’re following. The law has already been followed by the judges. So we get to make our decision based on our own beliefs.” Or as Governor Scott himself even more bluntly put it in another 2016 hearing, “[T]here’s no standard. We can do whatever we want.” If you think this sounds open to arbitrariness and abuse, you’re not alone. The standard-less process garnered significant criticism on John Oliver’s HBO show “Last Week Tonight” in September 2018, the YouTube video of which had garnered 3.8 million views by Election Day 2018. And well before John Oliver brought the issue to light on the late-night comedy circuit, the Fair Elections Legal Network filed an April 2017 federal lawsuit, Hand v. Scott, on behalf of several restoration applicants against Governor Scott, the Office of Executive Clemency, and numerous other Florida officials, alleging that the scheme’s potential arbitrariness violated applicant-felons’ associational and speech rights under the First Amendment and their rights to equal protection of the laws under the Fourteenth Amendment. The suit emphasized that the relevant Florida constitutional provisions were remnants of Sections 2 and 4 of Article XIV of the 1868 Florida Constitution, which was enacted by an all-white legislative delegation soon after “Black Codes” were imposed to imprison newly freed slaves for a litany of potential offenses—ones, such as vagrancy, thought to be committed disproportionately by blacks. The suit essentially argued that no Florida law or process shielded restoration applicants from the arbitrariness and invidious discrimination that the 1868 Constitution—and, by proxy, the 1968 Constitution—were meant to impose.

On February 1, 2018, Judge Mark Walker granted the plaintiffs’ motion for summary judgment as to both First Amendment and the Fourteenth Amendment claims. The public taping of the board’s meeting may have ultimately been its undoing in the district court’s eyes: Judge Walker noted from the outset Governor Scott’s bold proclamation in 2016 that “[w]e can do whatever we want.” The district court held that, just as a state cannot disenfranchise someone for arbitrary reasons, it cannot re-enfranchise (or not) for arbitrary reasons either. In turn, it found that the standard-less restoration process in Florida was ripe for abuse: “The violation in this case—the substantial risk of arbitrary and discriminatory vote-restoration based on an applicant’s identity and perceived voting preferences from partisan government officials—is worse than coin flip.” Particularly bothersome to the court were the plaintiffs’ allegations that Governor Scott had restored the rights of an applicant who admitted to Scott he had illegally attempted to vote for him—yet denied the same relief, on seemingly no basis, to several applicants convicted of the same offense who were not so forthcoming as to their political leanings. On March 27, Judge Walker entered a judgment for the plaintiffs and issued an order enjoining Florida’s entire restoration scheme until the Office of Executive Clemency had promulgated “specific and neutral criteria” to direct vote-restoration decisions, with the deadline of one month.

In a cruel twist of fate all too familiar to many convicted felons, however, the plaintiffs’ legal victory was short-lived. Nearly one month after the entry of Judge Walker’s judgment, on April 25, a three-judge panel on the Eleventh Circuit Court of Appeals issued a stay of the district court’s order. The panel held flatly: “Binding precedent holds that the Governor has broad discretion to grant and deny clemency, even when the applicable regime lacks any standards.” The panel noted that, although a restoration scheme could potentially violate the Equal Protection Clause of the Fourteenth Amendment “if it had both the purpose and effect of invidious discrimination,” the plaintiffs had neither alleged nor proven that such discrimination existed. The Eleventh Circuit, in issuing its stay, emphasized the avoidance of injecting chaos and uncertainty into election procedures, especially on the short schedule imposed by the district court. Under the heavy weight of US Supreme Court precedent in Richardson v. Ramirez—the 1974 case that the permanent disenfranchisement of convicted felons does not violate the Fourteenth Amendment—the panel marked the plaintiffs’ case as a non-emergency and set oral argument for July 25, 2018; no decision has been issued since. Notably, after legal arguments had concluded in July, a Palm Beach Post investigation revealed in October that Governor Scott’s restorations had, in fact, skewed disproportionately in favor of white and Republican applicants.

Perhaps with foresight of the legal and evidentiary problems that the Hand plaintiffs were likely to face, a campaign to restore ex-felons’ voting rights through the political process had already been well underway.

This post is the first post of a two-part series. Part Two will focus on the long political campaign to get Amendment 4 on the ballot, the ultimately successful tactics of its sponsors, and how the issue of felon disenfranchisement played out during the 2018 midterm campaign.

 

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