Siding with Gov. Rick Scott and the other members of the Board of Executive Clemency, a panel of the 11th U.S. Circuit Court of Appeals late Wednesday blocked a federal judge’s order that would have required state officials to overhaul Florida’s process of restoring felons’ voting rights by Thursday.
The appellate court ruling was a decisive victory for Scott, Attorney General Pam Bondi and the two other members of the Florida Cabinet, who serve as the clemency board, in a legal battle in which state officials have been on the losing side in a series of rulings by U.S. District Judge Mark Walker.
Walker ruled the state’s vote-restoration process violated First Amendment rights and Fourteenth Amendment equal-protection rights of felons. Last month, he gave Scott and the board until Thursday to revamp what the judge called a “fatally flawed” process and rejected a request by Bondi to put his order on hold.
Scott and the board immediately appealed Walker’s decision and asked the appellate court to put a stay on what the governor’s office branded a “haphazard clemency ruling.”
In its 2-1 decision Wednesday, the three-judge panel not only granted the state’s request to put Walker’s decision on hold but also indicated the judge’s invalidation of the vote-restoration process likely would not stand up.
“The Fourteenth Amendment expressly empowers the states to abridge a convicted felon’s right to vote,” appellate Judge Stanley Marcus wrote in a majority opinion joined by Judge William Pryor. “Binding precedent holds that the governor has broad discretion to grant and deny clemency, even when the applicable regime lacks any standards.”
Echoing arguments made by Bondi’s lawyers, the majority found “there is wisdom in preserving the status quo” until the appellate court issues a ruling in the overall case.
The clemency board “has a substantial interest in avoiding chaos and uncertainty in its election procedures, and likely should not be forced to employ a rushed decision-making process created on an artificial deadline now, just because a more thorough decision-making process could be employed later,” Marcus wrote. “We are reluctant to upset the system now in place --- particularly since the district court order creates so truncated a schedule --- when there is a good chance the district court’s order may be overturned, and the system would need to be changed again, potentially re-disenfranchising those who have been reenfranchised pursuant to the district court’s injunction.”
Scott has steadfastly defended the state’s process, saying it is founded on a 150-year old system enshrined in the state Constitution.
“We are glad that the 11th Circuit Court of Appeals has stayed the lower court’s reckless ruling. Judges should interpret the law, not create it. Governor Scott will never stop fighting for victims of crime and their families,” Scott spokesman John Tupps said in a statement Wednesday night.
The majority also found that the plaintiffs in the lawsuit, filed last year by the Fair Elections Legal Network and the law firm Cohen Milstein Sellers & Toll PLLC on behalf of nine felons, had not shown --- or even claimed --- that the state’s vote-restoration system is discriminatory.
“All we have is the assertion by the appellees (the plaintiffs) and a statement by the district court that there is a real ‘risk’ of disparate treatment and discrimination, precisely because the Florida regime is standardless,” Marcus wrote, adding that such a risk is “insufficient” under previous case law.
Lawyers representing the felons issued a terse statement following Wednesday’s decision, saying it “preserves the status quo” and “will be briefed and argued to the 11th Circuit on the merits.”
The court also rejected Walker’s finding that the state’s process violated the First Amendment rights of felons because, in part, “no First Amendment challenge to a felon-disenfranchisement scheme has ever been successful.”
But in a dissent, Judge Beverly Martin agreed with Walker that First Amendment rights of speech and association encompass the right to vote.
The board “has ‘unfettered discretion’ to permit an applicant to exercise her right to vote ‘at any time, for any reason,’ “ Martin wrote. “This unbridled discretion is not just concerning when it confronts expressive and associational freedoms traditionally protected by the First Amendment, but also when it threatens the right to vote.”
Martin wrote that, while she disagreed with Walker’s decision that the state could not completely do away its vote-restoration system, she would have left the rest of his injunction in place.
Due to the appellate court ruling, Scott canceled a hastily scheduled Wednesday night meeting of the clemency board, planned in case the Atlanta court did not grant the stay.
The restoration of felons’ rights has long been a controversial legal and political issue in Florida, with critics of the state's process comparing it to post-Civil War Jim Crow policies designed to keep blacks from casting ballots.
Florida, with about 1.6 million felons, is considered an outlier in a nation where more than three dozen other states automatically restore the right to vote for most felons who have completed their sentences.
After taking office in 2011, Scott and Bondi played key roles in changing the process to effectively make it harder for felons to get their rights restored.
Under the current process, felons must wait five or seven years after their sentences are complete to apply to have rights restored. After applications are filed, the process can take years to complete.
Since the changes went into effect in 2011, Scott --- whose support is required for any type of clemency to be granted --- and the board have restored the rights of 3,005 of the more than 30,000 convicted felons who’ve applied, according to the Florida Commission on Offender Review. There’s currently a backlog of 10,085 pending applications, according to the commission.
In contrast, more than 155,000 ex-felons had their right to vote automatically restored during the four years of former Gov. Charlie Crist’s tenure, according to court documents.
Siding with the plaintiffs, Walker in a March 27 ruling chastised Scott and other state officials and ordered the clemency board to devise a constitutionally sound program with “specific, neutral criteria that excise the risk --- and, of course, the actual practice of --- any impermissible discrimination, such as race, gender, religion or viewpoint.”
Walker scalded state officials for threatening to do away with the rights-restoration process all together and gave the clemency board until Thursday to “promulgate specific standards and neutral criteria” to replace the current “nebulous criteria, such as the governor’s comfort level.”
Walker also cautioned that there is a risk that the clemency board “may engage in viewpoint discrimination through seemingly neutral rationales” or a “perceived lack of remorse” that “serve as impermissible” masks for censorship.
“Therefore, the board must promulgate specific standards and neutral criteria to direct its decision-making,” Walker ordered in March. The judge did not specify a particular process but ordered that “Florida’s corrected scheme cannot be byzantine or burdensome.”
Arguing that they needed more time to craft new regulations, the state’s lawyers asked Walker to put his decision on hold, again drawing a rebuke from the judge.
"Rather than comply with the requirements of the United States Constitution, defendants continue to insist they can do whatever they want with hundreds of thousands of Floridians’ voting rights and absolutely zero standards," Walker wrote in a six-page decision April 4. "They ask this court to stay its prior orders. No."
The legal tangle involving Scott, the federal judge and the felons in the case comes months before Floridians will decide whether felons should automatically have their voting rights restored.
A political committee known as Floridians for a Fair Democracy collected enough petitions to put a constitutional amendment on the November ballot that would automatically restore voting rights to felons who have served their sentences, completed parole and paid restitution. Murderers and sex offenders would be excluded. The amendment, if approved by 60 percent of voters, could have an impact on about 600,000 Florida felons, according to supporters of the measure.
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