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Morning Mix


FLORIDA’S BAN ON EX-FELONS VOTING IS UNCONSTITUTIONAL AND BIASED, FEDERAL JUDGE
RULES

By Derek Hawkins
February 2, 2018 at 6:32 a.m. EST

Voter enters a booth at a polling place in Exeter, N.H., in November 2016.
(Elise Amendola/AP)

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In a blistering decision that could affect 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.


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U.S. District Judge Mark Walker criticized 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.

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“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.”

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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.

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The decision comes amid a wave of victories that voting rights activists have
scored in the past two years in court cases fighting restrictive state voting
policies. In 2016, federal judges in North Carolina and Ohio struck down
Republican-backed voter-identification laws in those states, finding that they
discriminated against minority voters. A federal judge in Texas came to the same
conclusion last year in a lawsuit challenging that state’s voter-identification
law.

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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.

A spokesman for the governor defended the state’s practices.

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“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,” read
a statement from Scott’s communications director, John Tupps. “The process is
outlined in Florida’s Constitution, and today’s ruling departs from the
precedent set by the United States Supreme Court.”

Florida’s constitution automatically strips voting rights from anyone convicted
of a felony, but governors can control how those rights get restored.

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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.”

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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.

The broad, uncheckable nature of the board’s power over the process made it ripe
for abuse, the judge ruled, saying it “risks — if not covertly authorizes the
practice of — arbitrary and discriminatory vote-restoration.” He said it
violated people’s First Amendment rights to free association and free
expression, as well as the equal protection clause of the 14th Amendment.

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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.

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“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.

The judge said there were other examples where applicants “invoked their
conservative beliefs and values to their benefit.” And in other cases, he wrote,
people who criticized felon disenfranchisement appeared less likely to receive
clemency.

Sylvester Hall, 79, lost his right to vote in Virginia after a conviction in the
1970s. Hall voted on Nov. 8 after regaining his voting rights. (Video: The
Washington Post)

“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,” Walker wrote. “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.”

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Voter restoration was a faster and less demanding process for former felons
under Scott’s predecessor, Rep. Charlie Crist, a former Republican who is now a
Democrat in the House of Representatives. During Crist’s four years in office
roughly 154,000 people had their voting rights restored. In the seven years
since Scott took office, fewer than 3,000 people have been granted restoration,
according to Walker’s ruling.

“We’ve known this policy was unjust, and today a federal judge confirmed it’s
also a violation of constitutional rights,” Crist tweeted Thursday.



More than 20 percent of Florida’s black voting-age population can’t vote,
according to figures from the nonpartisan Sentencing Project cited by the judge.

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Florida, Kentucky and Iowa are the only states where people convicted of a
felony permanently lose their voting rights pending clemency hearings. In 2016,
the Sentencing Project estimated that nearly 1.7 million Florida residents had
been stripped of voting rights, as The Washington Post has reported.

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A measure to restore voting rights to 1.2 million Florida voters, excluding
convicted murderers and sex offenders, will appear as an amendment on state
ballots in November. State officials approved the measure last week after a
grass-roots campaign collected 799,000 valid signatures from voters, as the
Miami Herald reported.

Echoing other recent judicial opinions in voting rights cases, Walker, an
appointee of President Barack Obama, said he was “not blind to the nationwide
trends” in which the right to vote “depends on who controls the levers of
power.”

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“That spigot is turned on or off,” he wrote, “depending on whether politicians
perceive they will benefit from the expansion or contraction of the electorate.”

Correction: A previous version of this report incorrectly stated that the
plaintiffs were supported by the American Civil Liberties Union.

Read the ruling

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