Florida could permanently do away with the restoration of civil rights —- including the right to vote —- for ex-felons in response to a federal judge’s ruling that the voting-restoration process is unconstitutional, the state’s attorneys argued in court documents filed Monday.
Siding with the voting-rights group Fair Elections Legal Network this month, U.S. District Judge Mark Walker found that the state’s clemency system is arbitrary and violated First Amendment rights and equal-protection rights under the U.S. Constitution’s 14th Amendment.
Under the current system, felons must wait a minimum of five to seven years after completing their sentences, fulfilling probation and paying restitution, before they can apply to have their rights restored.
Gov. Rick Scott pushed the mandatory wait periods, adopted by the Board of Executive Clemency —- comprised of Scott, Attorney General Pam Bondi, Agriculture Commissioner Adam Putnam, and then-Chief Financial Officer Jeff Atwater —- shortly after the newly elected governor took office in 2011.
Since the policy went into effect, just a fraction of the 100,000 former felons who have applied have had their rights restored.
In his Feb. 1 ruling, Walker did not decide how the rights-restoration process should change and gave the plaintiffs and the state until Monday to file briefs on the issue.
In the state’s brief filed Monday, Attorney General Pam Bondi’s lawyers argued it “would be inappropriate” for the court to create a new restoration-of-rights procedure.
The state also laid out a variety of options the clemency board could pursue while the case is being appealed.
The board could stop restoring any convicted felons’ ability to vote, “either permanently or as an interim measure” until the board changes its rules to comply with Walker’s order, Bondi’s lawyers argued.
Or the clemency rules could be changed to permanently strip voting rights from people convicted of “certain serious felonies” and create new standards that include a “definite timeline for decisions for those convicted of other categories of felonies.”
The clemency rules could also be amended “to provide for discretionary or non-discretionary” voting restoration “for all categories of felonies.”
Another option would be changing the provisions imposing the waiting periods before felons can apply to have their rights restored, according to Monday’s brief.
“Nothing in the federal Constitution requires Florida to choose one of these options —- or an entirely different system of executive clemency —- over any other,” the state’s lawyers argued.
Florida law permits the restoration of a felon’s voting rights, but “does not require the state’s policymakers to institute any particular kind of remedy in the event that an existing vote-restoration scheme is declared invalid,” the state argued.
The state also relied in part on Walker's ruling, in which the judge wrote that he could not strike down Florida’s disenfranchisement statutes as unconstitutional “because states have an ‘affirmative sanction in the Constitution to disenfranchise felons.’ “
Doing away with the voting-restoration system entirely while the case continues to work its way through the courts would “fully comport” with Walker’s ruling and “fully remedy the federal constitutional issues” the judge identified, the lawyers wrote in the 27-page brief.
But attorneys representing the plaintiffs suggested that Walker do away with the clemency board’s discretion and instead require “automatic” restoration of rights for felons who have met the requirements, including the waiting period, laid out in the current system.
“Plaintiffs propose that this court order the restoration of the right to vote to all persons with felony convictions immediately following the completion of any waiting period of a specified duration of time set forth in Florida state law or the rules of executive clemency,” attorneys with the Fair Elections Network and the Cohen Milstein Sellers & Toll law firm wrote in a 23-page brief. “Currently, the rules require a felon to wait five or seven years after sentence completion before he or she is eligible for restoration of civil rights. Such an order will effectively eliminate the requirement for ex-felons to affirmatively apply for restoration and eliminate the state’s obligation to investigate each ex-felon in the state of Florida prior to making what this court has found must be an objective determination made in a timely fashion.”
The state agency that processes restoration-of-rights applications has long faced complaints about backlogs. The agency, now called the Commission on Offender Review, currently has a backlog of more than 10,000 applications, according to the agency.
In his Feb. 1 ruling, Walker scalded the state’s system, saying it “strips the right to vote from every man and woman who commits a felony” and leaves ex-felons at the mercy of the clemency board’s whims.
“To vote again, disenfranchised citizens must kowtow before a panel of high-level government officials over which Florida’s governor has absolute veto authority. No standards guide the panel. Its members alone must be satisfied that these citizens deserve restoration. Until that moment (if it ever comes), these citizens cannot legally vote for presidents, governors, senators, representatives, mayors, or school-board members,” the judge wrote.
The remedy proposed by the plaintiffs would “fix the unconstitutional arbitrariness in the current restoration system and save the state money by eliminating the need to process and investigate individual applications for restoration of the right to vote,” Fair Elections Legal Network said in a press release Monday evening.
But the state’s lawyers argued that the judge should not impose a new system but should instead trust the clemency board to do the right thing.
“Nothing in the record suggests that defendants would, in the face of a judgment declaring the state’s vote-restoration procedures of the Clemency Board unconstitutional, continue to implement and apply those procedures in contravention of this court’s decision,” the state’s lawyers wrote.
Scott spokesman John Tupps said the court should leave the clemency process in the hands of state officials.
“This is outlined in Florida’s Constitution and has been in place for more than a century and under multiple gubernatorial administrations,” Tupps said in a statement. “The governor continues to stand with victims of crime. He believes that people who have been convicted of felony offenses including crimes like murder, violence against children and domestic violence, should demonstrate that they can live a life free of crime while being accountable to our communities.
The legal wrangling over restoration of rights comes months before voters will weigh in on a proposed constitutional amendment in November that would automatically restore the right to vote for felons who have fulfilled their sentences and paid restitution. Murderers and sex offenders would be excluded.