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Florida’s ban on ex-felons voting is unconstitutional and biased, federal judge rules

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

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.

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.

“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.

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.

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.

“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.

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.

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.

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.

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.”

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.

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.

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.”

“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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