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February 2, 2018

US District Judge finds unconstitutional Florida's process to restore voting rights to disenfranchised felons

As reported in this local press article, "Florida routinely violates the constitutional rights of its citizens by permanently revoking the "fundamental right" to vote for anyone convicted of a felony, a federal judge ruled Thursday." Here is more about this notable ruling:

U.S. District Judge Mark Walker said the Florida "scheme" unfairly relies on the personal support of the governor for citizens to regain the right to vote. In a strongly-worded ruling, he called the state's defense of voter disenfranchisement "nonsensical," a withering criticism of Gov. Rick Scott, the lead defendant in the case.

"Florida strips the right to vote from every man and woman who commits a felony," Walker wrote. "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 … The question now is whether such a system passes constitutional muster. It does not."

Walker wrote: "If any one of these citizens wishes to earn back their fundamental right to vote, they must plod through a gauntlet of constitutionally infirm hurdles. No more. 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."

The judge condemned a system that he said gives "unfettered discretion" to four partisan politicians, and cited as proof a comment Scott made at one hearing when he said: "We can do whatever we want."

Scott's office issued a statement late Thursday, hinting at an appeal. "The discretion of the clemency board over the restoration of felons' rights in Florida has been in place for decades and overseen by multiple governors," said a statement attributed to Scott's communications director, John Tupps. "The process is outlined in Florida's Constitution, and today's ruling departs from precedent set by the United States Supreme Court."...

Scott was the principal architect of the current system that requires all felons to wait at least five years after they complete their sentences, serve probation and pay all restitution, to apply for right to vote and other civil rights. Scott and the Cabinet, meeting as a clemency board, consider cases four times a year, and usually fewer than 100 cases each time. It can take a decade or longer for a case to be heard, and at present the state has a backlog of more than 10,000 cases.

Scott imposed the restrictions in 2011, soon after he was elected, with the support of three fellow Republicans who serve on the Cabinet, including Agriculture Commissioner Adam Putnam, now a leading candidate for governor. Scott's actions in 2011 reversed a policy under which many felons, not including murderers and sex offenders, had their rights restored without application process and hearings. That streamlined process was instituted in 2007 by former Gov. Charlie Crist, then a Republican and now a Democratic member of Congress. "We've known this policy was unjust, and today a federal judge confirmed it's also a violation of constitutional rights," Crist wrote on Facebook....

Walker's decision came nine days after the state approved a ballot measure that, if passed in November, would automatically restore the voting rights of about 1.2 million felons, not including convicted murderers and sex offenders. That proposal will appear as Amendment 4 on the Nov. 6 ballot in Florida.

A leader of the initiative is Desmond Meade of Orlando, a law school graduate of Florida International University and a convicted felon waiting to have his rights restored. Meade said the judge's decision validated the work of more than a million Florida voters who signed petitions that helped get the measure on the ballot. "The system is broken, and now we know not only is it broken, but the courts are saying it's unconstitutional," Meade said.

Walker, who was appointed by President Barack Obama, ruled that Florida's lifetime ban on the right to vote violates the First and Fourteenth amendments to the U.S. Constitution, which are the guarantees of freedom of expression, due process and equal protection under law. Throughout his 43-page ruling, Walker cited the arbitrariness of Florida's system. Felons routinely have been denied their voting rights because they have received speeding tickets or failed to pay child support.

"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."...

The judge gave both sides in the case until Feb. 12 to file briefings on how to permanently remedy the constitutional deficiencies in Florida's system. Scott and Cabinet members are scheduled to hear the next round of clemency petitions in March.

District Judge Walker's 43-page opinion is available in full at this link.  Because I am a fan of expanding the franchise as much as possible, I am always pleased to see a ruling that has the potential effect of broadening voting rights and remedies.  But because Florida's restoration procedures are styled as a form of clemency and court have historically be chary about finding constitutional problems with or limits on clemency powers, I am unsure if this ruling will withstand likely appeals.

February 2, 2018 at 12:26 AM | Permalink


Doug, it makes me really sad that eight of the last eight comments on your blog have been made by supremacy claus. I used to enjoy, and learn from, comments by serious and intelligent people.


Posted by: bruce cunningham | Feb 2, 2018 6:23:15 AM

This is amazing---felons may be disenfranchised by the state, and it's to the governor to restore them.

Why is this hard? Oh, because the Democrats need felons to win elections.

Posted by: federalist | Feb 2, 2018 8:01:51 AM

Voting is a fundamental right, deprivation has to be done particularly carefully, and there isn't a total exception here for those convicted of felonies, serve their time and eventually seek to regain their right to vote. This applies to the current process.

There is also the wider argument shared by the professor here who repeatedly supports Republicans when it advances his goals of expanding the suffrage generally. For everyone, be it Democrat, Republican or other.

It is quite true that felony disenfranchisement by purpose often effect over the years tends to in various cases involve certain groups. The laws were specifically drawn up with this in mind. To be blunt, this is totally unsurprising and being adults, we shouldn't really be shocked by any of it. Of course, one might find the results troubling, like some (be it by Democrats or Republicans) don't like political gerrymandering.

The fact that Democrats, in certain cases, will benefit from fundamental rights being fully honored is duly noted.

Posted by: Joe | Feb 2, 2018 10:20:13 AM

Take it to the bank, the 11th circuit is going to reverse. This is garbage judicial activism and the opinion reads like it.

Posted by: The Prince | Feb 2, 2018 10:34:41 AM

bruce: this thread shows interested persons will sometimes comment more than SC. I share your sadness that SC uses this comment soap-box so much more than others. But his rants tend to be shorter these days, and I am always hoping they will be less frequent.

federalist: American colonists were heard to cry "Taxation without representation is tyranny." If we are going to preclude felons from voting, I would be incline to also exempt them from taxation if we are to be true to the spirit of our founding. Why is this hard?

Posted by: Doug B | Feb 2, 2018 10:42:53 AM

Bruce. You want to silence dissent from the hegemony of your sick criminal cult enterprise over our government. I am with the ACLU, the remedy to offensive speech is more speech, not censorship.

Your specialty stinks. It is in utter failure. We do not even need robots or algorithms to replace you. You can be replaced by an email service between the prosecutor and the defendant. All you do is hand carry plea offers. You know that better than I do. You need more dissent, not less. Then on appeal, you just play the loophole game, and allow the 20% of clients who are innocent to be chewed up by this failed system. You stink. You are a disgrace.

Posted by: David Behar | Feb 2, 2018 10:59:02 AM

Mr. Behar, great job there showing the value of free expression. This isn't a town square. It's Professor Berman's dinner party, and he has every right to ask a guest to leave if that guest persists in rudely monopolizing the conversation and angrily calling other guests offensive names. Yes, yes, I know. I'm a disgrace, my job stinks, the world would be better off if I received the Italian death penalty, blah, blah life skills students.

Posted by: Publius | Feb 2, 2018 11:23:41 AM

Given that the 14th amendment recognizes that voting rights may be removed upon conviction I do not see this surviving. There doesn't have to be _any_ process for restoration, that Florida does is to its credit even if that system is Byzantine and rigged against the felon.

Posted by: Soronel Haetir | Feb 2, 2018 11:51:57 AM

Given some of the recent First Amendment ruling from the United States Supreme Court, I can't tell what the "right" (i.e. following the current law) result is at the Eleventh Circuit. On the one hand, the State does not have to have a clemency process, but Florida does. If they establish a process, does it have to have sufficient guidelines to prevent it from being arbitrary and capricious? Is it a First Amendment violation if the process permits the clemency determination to discriminate based on the applicant's viewpoint (or perceived viewpoint)? If so, how do you avoid the First Amendment issue.

Posted by: tmm | Feb 2, 2018 1:58:01 PM

It is not Prof. Berman's dining room. Billions of people are not invitees there. It is Prof. Berman's sidewalk, where he may not exclude people on the basis of the protected classes, or on the basis of viewpoint. He owns the sidewalk in front of his house, and must compensate people who fall, pay a fine for not shoveling the snow, but he may not exclude any invitee, except by time and manner. Lawyer dumbass Volokh, a national First Amendment expert, also had trouble understanding that. I have told Prof. Berman I am not interested in his blog for this subject of litigation. However, I am interested in Facebook/Twitter/YouTube and other left wing, disloyal abominable sites.

Posted by: David Behar | Feb 2, 2018 2:46:26 PM

Because this is a new right being promoted, one may resist the pretextual attempt to increase the number of registered Democrats. The overwhelming majority of lawyer are Democrats. The overwhelming majority of criminals will be Democrats. There are millions out there, to tip the balance for the Democratic party in our divided nation.

I have proposed that felons start their own businesses and stop depending on others. If they ever listen, they will be voting for the Republican Party as they see the regulatory obstacles at every step of trying to run a business. The other way to make someone register as a Democrat is to give them a share of a major corporation for Christmas.

Posted by: David Behar | Feb 2, 2018 2:51:02 PM

Publius. You criticize repetition. You would have more credibility if you mocked the repetitive posts of this blog pushing the false idea of low crime and decarceration. These are ridiculous, and relentless. This blog requires a busy Truth Squad.

Posted by: David Behar | Feb 2, 2018 2:52:56 PM

But Mr. Behar, it's more fun to mock your repetitive posts. If I mocked Professor Berman, he'd simply respond with a level-headed explanation for his approach. You, on the other hand, fairly froth at the mouth and write three frenetic comments in the space of six and a half minutes.

By the way, your sidewalk analogy is wrong. Professor Berman cannot exclude someone from his sidewalk. He can click his mouse and exclude anyone he wants from this blog, and it is entirely his right to do so. His decision to date to allow you free expression here is discretionary.

Posted by: Publius | Feb 2, 2018 3:25:02 PM

That exclusion is a court or legislative question. If Facebook invites 2 billion people, it may not exclude any based on viewpoint.

Thanks for your candor that your comments are personal attacks.

Posted by: David Behar | Feb 2, 2018 3:35:12 PM

"federalist: American colonists were heard to cry "Taxation without representation is tyranny.""

Heald v. District of Columbia (1922):

"Finally, it is earnestly contended that the act is void because it subjects the residents of the District to taxation without representation. Residents of the District lack the suffrage, and have politically no voice in the expenditure of the money raised by taxation. Money so raised is paid into the Treasury of the United States, where it is held not as a separate fund for the District, but subject to the disposal of Congress, like other revenues raised by federal taxation. The objection that the tax is void because of these facts is fundamental and comprehensive. It is not limited in application to the tax on intangibles, but goes to the validity of all taxation of residents of the District. If sound, it would seem to apply not only to taxes levied upon residents of the District for the support of the government of the District, but also to those taxes which are levied upon them for the support generally of the government of the United States. It is sufficient to say that the objection is not sound. There is no constitutional provision which so limits the power of Congress that taxes can be imposed only upon those who have political representation."

Posted by: Teed-Off Party | Feb 3, 2018 4:08:07 AM

You are 100% right, Teed-Off, that there is not formal constitutional principle that says those who are taxed have to have voting rights. Kids and foreign nationals earning significant money in US, for example, still have to pay income taxes without voting rights. And my travel to another state for vacation, where I will end up paying hotel taxes and sales taxes, does not bestow me with voting rights.

That said, the key point is that we as a nation are founded in some part on the basic notion that those who bear the burdens/responsibilities of citizenship through tax responsibilities ought also get the benefits/rights of citizenship through voting rights. If one approaches the issue in deeply partisan ways --- as partisan federalist is inclined to do for lots of issues --- there can be lots of justifications for shrinking/growing the franchise at a moment in time: e.g., the GOP would likely be well served politically by trying to raise the voting age to 21, and Dems would likely be well served politically by saying everyone over 70 needs to come with a competency certification as well as an ID when seeking to vote.

But if one approaches the issue with a deep commitment to democratic values and participation --- as I do --- then there should be a strong starting premise that everyone in the polity has a right to vote absent a very strong and enduring reason for disenfranchisement. As I have written in the past, I do not think committing a crime should, standing along, every be the basis for disenfranchisement. And there is even evidence to suggest that allowing felons to vote furthers public safety interests.

Posted by: Doug B | Feb 3, 2018 11:44:36 AM

"Given that the 14th amendment recognizes that voting rights may be removed upon conviction I do not see this surviving. There doesn't have to be _any_ process for restoration, that Florida does is to its credit even if that system is Byzantine and rigged against the felon."

I think the cited provision has been too broadly applied (agree with the dissent in Richardson v. Ramirez, cited by the judge here) but once a process is set up, it has to follow "due process." Circuit precedent (cited) so states.

The ability to remove does not mean any system in place is legitimate. At the very least, the ability to remove didn't stop the Supreme Court from saying the purpose for doing so must not be racially discriminatory. (Not saying as such this one is for the purposes of this comment.) Hunter v. Underwood.

The reach of Ramirez is unclear and is ripe in my opinion for re-examination. The professor's latest comment is well taken. But, appeals to 18th Century slogans applied more narrowly at the time only takes us so far. They are appealing though as seen by the usage of the Declaration of Independence in ways that would appall certain signatories.

Posted by: Joe | Feb 3, 2018 12:28:23 PM

SC you state: "He owns the sidewalk in front of his house, and must compensate people who fall, pay a fine for not shoveling the snow, but he may not exclude any invitee, except by time and manner." But you forget DB lives in Ohio -- he doesn't have to pay for persons like you or me who slip and fall on his unshoveled sidewalk. A “homeowner has no common-law duty to remove or make less hazardous natural accumulation of ice and snow on private sidewalks or walkways on homeowner's premises, or to warn those who enter upon premises of inherent dangers presented by natural accumulations of ice and snow, regardless of whether the entrant is a social guest or business invitee.” Brinkman v. Ross, 68 Ohio St. 3d 62 (1993). So do us all a favor, and realize you are not Immanuel Kant -- your categorical imperative -- concerning snow and ice is not categorically embraced in Ohio -- instead, common sense rules --pay attention to the weather because a homeowner is not an insurer vis-à-vis mother nature.

Posted by: ? | Feb 3, 2018 9:09:37 PM

?. My comment is about Free Speech on private property. Tort liability was an illustration of property ownership.

Posted by: David Behar | Feb 4, 2018 5:44:30 PM

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