Derek Hawkins, Washington Post, February 2, 2018
In a blistering decision that could impact the 2018 midterm elections, a federal judge on Thursday ruled that Florida’s system for barring former felons from voting is unconstitutional and potentially tainted by racial, political or religious bias.
U.S. District Judge Mark Walker blasted the state panel led by Florida’s governor that decides whether to restore voting rights to people who have completed their sentences, saying their process is arbitrary and exceedingly slow.
“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 wrote. “The question now is whether such a system passes constitutional muster. It does not.”
“A person convicted of a crime may have long ago exited the prison cell and completed probation,” the judge continued in the 43-page order. “Her voting rights, however, remain locked in a dark crypt. Only the state has the key — but the state has swallowed it.”
The judge did not rule on how the issue should be remedied — he will hold hearings on that in mid-February — but he said the voter restoration system must be changed as soon as possible.
The lawsuit was brought against Gov. Rick Scott (R) by a group of former felons in Florida who had completed their sentences but were denied voting rights by the state’s Office of Executive Clemency. They were supported by the Fair Elections Legal Network.
Walker’s ruling is also a forceful rebuke of Scott, who implemented Florida’s current felon restrictions shortly after he took office in 2011, reversing a more lenient policy that was in place previously, as the Tampa Bay Times has reported.
Florida’s constitution automatically strips voting rights from anyone convicted of a felony, but governors can control how those rights get restored.
Under the current system, former felons must wait a minimum until five years after completing the full scope of their sentence, including probation and restitution, before they can seek re-enfranchisement. At that point they can appeal to the clemency board, a four-member panel headed by the governor. State rules give Scott, and Scott alone, “unfettered discretion to deny clemency at any time, for any reason.”
A number of factors can influence the clemency board’s decision, including drug and alcohol use as well as fuzzier elements such as “level of remorse.” In some cases, traffic tickets have been enough for the board to deny re-enfranchisement. Those who are rejected can’t reapply for at least two years. There’s a 10,000-person backlog of applicants.
In one withering anecdote, Walker described the case of a white man who was convicted of casting an illegal ballot in 2010. When the man went before the board three years later, Scott asked him about his illegal voting.
“Actually, I voted for you,” the man said. Scott laughed and told him, “I probably shouldn’t respond to that.” Seconds later, the governor ordered his voting rights restored, according to the ruling.
The plaintiffs identified five similar cases in which former felons were denied restoration of their voting rights because they had cast illegal ballots. Four of the five of them were African American, according to the ruling.