Some of the numbers tossed out in Judge Mark Walker’s opinion in Hand v. Scott, which was released Thursday, are simply shocking.
“More than one-tenth of Florida’s voting population — nearly 1.7 million as of 2016 — cannot vote” due to a felony conviction, Walker writes. That includes “more than one if five of Florida’s African American voting-age population.”
The state, moreover, uses an entirely arbitrary method to determine who among this population may have their voting rights restored. A board led by the state’s governor has “unfettered discretion” to determine whether to restore someone’s voting rights. And the governor has an unchecked veto allowing him to unilaterally deny voting rights to someone with a felony conviction — a veto power that Gov. Rick Scott (R) appears to have used to great effect.
Under Florida’s previous governor, Charlie Crist — who previously was a Republican, but who now serves in the House as a Democrat — “more than 154,000 citizens had their voting rights restored.” Since Scott took office in 2011, however, “less than 3,000 people have received restoration.”
In the rare cases where Scott has deigned to restore someone’s voting rights, he has often done so under dubious circumstances. “Plaintiffs identify several instances of former felons who professed political views amendable to the Board’s members who then received voting rights, while those who expressed contrary political views to the Board were denied those same rights,” Judge Walker’s opinion reads.
In once instance, “the Governor asked one former felon, Steven Warner, about an illegal vote he cast in 2010 — before his voting rights were restored.” But the governor decided to restore Warner’s voting rights after Warner responded, “Actually, I voted for you.”
Meanwhile, “Plaintiffs identify five former felons who, at other points, were questioned about illegal ballots cast and then rejected on that basis.” As Walker notes, “it is not lost on this Court that four of the five rejected applicants are African-American.”
Should Walker’s opinion in Hand survive review by higher courts, it will put an end to this practice. Hand holds that, though the Fourteenth Amendment permits states to disenfranchise convicted felons, the Constitution does not permit a state to use a system of voting rights restoration that provides a handful of government officials “with unfettered discretion and no meaningful time restraints on the exercise of that discretion.”
The danger, Judge Walker explains, is that such a system invites those officials to exercise power for arbitrary or impermissible reasons. Quoting a court of appeals decision, Walker writes that the state’s power to disenfranchise felons does not include a power to, for example, “disenfranchise similarly situated blue-eyed felons but not brown-eyed felons.” It also does not permit the state to “yank the right to vote from a Republican felon but retain voting rights for Democratic felons.”
Florida’s system defies the Constitution “because it risks — if not covertly authorizes the practice of — arbitrary and discriminatory vote-restoration.”
It remains to be seen, of course, whether this reasoning will survive contact with higher, more conservative courts.
The decision by Judge Walker, who is an Obama appointee, will appeal to the United States Court of Appeals for the Eleventh Circuit — which is dominated by Democratic appointees but not necessarily by liberals. Many of the judges on this court were compromise nominees appointed by Presidents Clinton and Obama after Republican senators threatened to block a less conservative nominee.
Either court could potentially toss out Walker’s decision outright, or they could potentially hold that Walker’s sweeping invalidation of Florida’s system of rights restoration goes too far — while still allowing voters who suffered especially egregious discrimination to file individual suits.
It is also unclear what, exactly, the remedy will be for Florida’s unconstitutional system. Judge Walker ordered the parties to submit briefs to the court by February 12 on what they believe the appropriate remedy to be. Whether Walker ultimately orders a mass reinfranchisement of voters, or merely requires Florida to come up with objective standards governing future restorations of voting rights, remains to be seen.
An initiative that is expected to appear on the November 2018 ballot in Florida would restore voting rights to most people convicted of a felony after they complete their prison sentence, parole, and probation (people convicted of murder or felony sex offenses would not have their rights restored). Should that ballot initiative pass, it could potentially moot the Hand case.