Court curbs the discretion of Florida governor in restoring voting rights

More snow and cold. Makes you yearn for the warmth and sunshine of Florida. However, before you relocate, consider the legal environment of Florida. For example, look at felon disenfranchisement.

Florida is one of four states that effectively bars every man and woman who commits a felony from voting for life. By contrast, New York’s bar is for the time a person is in jail or on parole.

The consequences of Florida’s bar are dramatic. More than one-tenth of its voting population—nearly 1.7 million persons as of 2016—cannot vote because of a conviction. More than one in five African-Americans of voting age cannot vote. These rates are the highest in the country.

The Supreme Court has held that felon disenfranchisement is constitutional, relying on three words in the Fourteenth Amendment and state voting laws as of the adoption of the Amendment in 1868. Richardson v. Ramirez, 418 U.S. 24 (1974).

Florida law does allow for the voting rights of a felon to be restored. Five or seven years after he completes his sentence, a felon may apply for restoration to the Executive Clemency Board. The governor and three other elected officials sit on the board. The governor and two other members of the board must approve the application.

Per its rules, the board “has the unfettered discretion to grant, at any time, for any reason” the application. The governor alone “has the unfettered discretion to deny” the application, “at any time, for any reason.”

The current governor is Rick Scott. He and his board colleagues have exercised their discretion rarely. During his seven years in office, the board has granted fewer than 3,000 applications. During the four years of his predecessor, the board restored the voting rights of 154,000 citizens. The review of an application may take years.

Last year nine felons challenged the constitutionality of the vote-restoration scheme. The beginning of February a federal district court handed down a decision for the plaintiffs, a decision that blistered Governor Scott. Hand v. Scott, No. 4:17-cv-128 (N.D. FL. Feb. 1, 2018).

The right to vote is “fundamental,” protected by the freedoms of association and expression within the First Amendment, so stated the court.

Voting enhances a group’s advocacy of “public and private points of view, particularly controversial ones.” Laws and practices that “threaten political association by favoring one association–or political party–over others” are frowned upon. Also, by voting a citizen engages in expressive activity, “winnow(ing) and finally reject(ing) all but the chosen candidates.”

The unfettered discretion built into the vote-restoration scheme imposed “serious burdens” on the plaintiffs’ exercise of these freedoms. Besides the practical burdens, such as the long delays, the scheme let the board discriminate among applicants based upon the viewpoints of the applicants.

If an applicant did not support the governor, the governor could deny his application. In fact, Governor Scott made known by word and deed he favored conservative, usually white, felons who had voted for him.

Evidence of discrimination aside, the scheme still ran afoul of the First Amendment, because the mere risk of viewpoint discrimination was too high. Nothing in the scheme prevented the Board from making decisions based on the content of the applicant’s speech. The Supreme Court regularly strikes down such risky laws. See, e.g., Forsyth Cty., Ga. v. Nationalist Movement, 505 U.S. 123 (1992).

Forced to justify the burdens under strict scrutiny, the state could not do so. It argued that since it had the right to disenfranchise felons as irresponsible persons, it had the right to determine when they became responsible and thus eligible to vote again. Until that time a felon’s inability to associate effectively with a political party and to express fully his political preferences is just a byproduct, or “asterisk of (his) disenfranchisement” authorized by the 14th Amendment.

The court called the argument “legal chicanery.” The freedoms of association and expression set bounds on Florida’s vote-restoration scheme and are not subservient to the scheme.

“By downgrading all former felons into second-class citizens long after serving their sentences, where escape is only possible through running through a maze of potential viewpoint discrimination, bias, and arbitrary conduct,” the scheme discourages participation in the “democratic process,” the foundation of our “constitutional order.”

The court invited the parties to propose a remedy. Last month the state submitted two: another discretionary scheme and a complete abandonment of any restoration. The plaintiffs asked the court to restore the vote to every felon who had completed his sentence.

The court rejected the proposals. Instead, it ordered the Board to establish “specific and neutral criteria to direct vote-restoration decisions” and “expeditious time constraints” on its decision-making.

The debate over vote-restoration in Florida continues. Appearing on the ballot in November is a citizen’s initiative to amend the state constitution. It would automatically restore the voting rights of felons, once they have completed their sentence, including parole. Two categories of felons are excluded: those convicted of murder and those convicted of sex offenses.

Sixty percent of the voters must approve the initiative for it to become law. Early polls show more than 60 percent of Floridians approve the idea.

It will be interesting to see what Governor Scott’s take is on the initiative. He was very happy with a scheme that enabled the board to do “whatever we want,” to quote him.

Felons, like you and me, bear the consequences of actions taken by elected officials. Like you and me, felons should have the right to choose those officials at the polls.

Scott Forsyth is a partner at Forsyth & Forsyth and serves as legal counsel to the local chapter of the NYCLU, but the views expressed herein are his own. He may be contacted at 585-262-3400 or [email protected].