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Florida felons' process for restoration of voting rights is unconstitutional, federal judge rules

Judge: Scott's clemency system for felons doesn't pass constitutional muster

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TALLAHASSEE, Fla. – A federal judge ruled Thursday that Florida has been violating the constitutional rights of convicted felons with a lifetime ban revoking their "fundamental right" to vote and forcing the disenfranchised citizens to "kowtow" before a panel of high-level government officials over which Florida's governor has absolute veto authority. 

U.S. District Judge Mark Walker ruled in favor of the Fair Elections Legal Network, a national voting rights group, and the law firm of Cohen Milstein Sellers & Toll. They challenged Gov. Rick Scott and Florida's Executive Clemency Board on behalf of James Hand, a Cutler Bay resident and felon released from prison in 1986, six other plaintiffs and a class of about 1.5 million felons.

"No standards guide the panel. Its members alone must be satisfied that these citizens deserve restoration … 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 in his 43-page ruling. "The question now is whether such a system passes constitutional muster."

Walker ruled it does not, because it violates the First and Fourteenth Amendments to the U.S. Constitution. He said Florida's convicted felons were victims of a "scheme" and a board with "limitless power" that relied on the support of Scott, who imposed more restrictions in 2011. 

The system requires convicted felons to wait at least five years after they complete their sentences, serve probation and pay all restitution fees, to apply to a clemency board for their right to vote. Hand completed his sentence in 2002. He didn't have a clemency hearing until 2011 and his application was denied. 

"More than one-tenth of Florida's voting population -- nearly 1.7 million as of 2016 -- cannot vote because they have been decimated from the body politic," Walker wrote. "More than one in five of Florida's African American voting-age population cannot vote."

The board members -- the governor, the attorney general, the chief financial officer and the agriculture commissioner  -- meets four times a year.  

"When the risk of state-sanctioned viewpoint discrimination skulks near the franchise, it is the province and duty of this Court to excise such potential bias from infecting the clemency process," Walker wrote.

Convicted felons, some of which failed to pay child support or had traffic tickets, have to wait years for a hearing. The clemency board has a backlog of at least 10,000 applications.  Hand and the other felons in the lawsuit completed the requirements were not eligible to vote. 

Before Scott, Gov. Charlie Crist set a process that didn't require felons to file an application or attend a hearing to have their rights restored. It excluded felons convicted of sex offenses or murder. 

"So the state then requires the former felon to conduct and comport herself to the satisfaction of the board's subjective --- and frankly, mythical -- standards," Walker wrote. "Courts view unfettered governmental discretion over protected constitutional rights with profound suspicion."

Walker wants both sides in the case to file briefings with a remediation plan before Feb. 12. 

Amendment 4, a ballot measure to restore the voting rights of felons, will appear on the Nov. 6 ballot in Florida. It will also exclude felons convicted of sex offenses or murder. 

Scott's spokesman, John Tupps, released a statement Thursday night saying the clemency board has been in place for decades, has been overseen by multiple governors and the process is outlined in Florida's Constitution. Scott plans to continue to defend the process in court. 

"Today’s ruling departs from precedent set by the United States Supreme Court," Tupps said. 
"The governor believes that convicted felons should show that they can lead a life free of crime and be accountable to their victims and our communities."

About the Author:

The Emmy Award-winning journalist joined the Local 10 News team in 2013.