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Florida's Rights Restoration Process Unconstitutional

Tagged under: Re-entry USA FL Criminal Justice Politics Expeal
By Omid Ghaffari-Tabrizi on April 22, 2018.

Omid Ghaffari-Tabrizi found this photo of a Florida voting booth.

US District Judge Mark Walker wrote that the system in place in the state of Florida, barring felons from voting, is not only unconstitutional, but also potentially tainted by racial, political, or religious bias. In his 43-page order, Judge Walker criticized the panel that decides on whether voting rights will be restored to people who have completed their sentences. The panel, which is led by Governor Rick Scott, was called arbitrary and exceedingly slow.

In the opinion, Judge Walker outlined the fact that Florida, which is one of the harshest states when it comes to felon disenfranchisement, "strips the right to vote from every man and woman who commits a felony." In order to restore their right to vote, those disenfranchised individuals must put themselves in front of a panel of "partisan officials [who] have extraordinary authority to grant or withhold the right to vote from hundreds of thousands of people without any constraints, guidelines, or standards."

Specifically, Judge Walker stated that "citizens must kowtow before a panel of high-level government officials over which Florida's governor has absolute veto authority. No standards guide the panel. Its members alone must be satisfied that these citizens deserve restoration. Until that moment (if it ever comes), these citizens cannot legally vote for presidents, governors, senators, representatives, mayors, or school-board members." Walker continued, stating, "The question now is whether such a system passes constitutional muster. It does not."

This case, which was filed in 2017 by the voting-rights group Fair Elections Legal Network, was a massive shock to groups who have long been fighting for voting rights for felons, including Omid Ghaffari-Tabrizi and Peter Huy of Expeal The two have been a driving force in automating and streamlining the process, hoping to get as many people in front of the panel as possible, forcing the hand of those on the panel.

"At some point," Ghaffari-Tabrizi stated, "there will be so many applications that the system would collapse on itself. When the house of cards that has been built falls, all the ugly truths that those of us fighting for individual's rights have known all along, would be exposed."

Judge Walker did his part in exposing a good portion of those issues. "A person convicted of a crime may have long ago exited the prison cell and completed probation." However, as the Judge pointed out, that person's "voting rights [...] remain locked in a dark crypt. Only the state has the key – but the state has swallowed it."

Judge Walker did not provide a plan for how to bring about the changes necessary to standup a legally-sufficient process, but did provide the Fair Elections Legal Network the opportunity to file a plan to which the state could respond. Gov. Scott's office, however, indicated that regardless of that option, the state will keep fighting.

John Tupps, the official spokesperson for Gov. Scott, stated that "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. The process is outlined in Florida's Constitution, and today's ruling departs from precedent set by the United States Supreme Court. The governor believes that convicted felons should show that they can lead a life free of crime and be accountable to their victims and our communities. While we are reviewing today's ruling, we will continue to defend this process in the court."

Despite these statements, however, more than one third of all US ex-felons who can't vote live in Florida. In fact, many have compared this process to post-Civil War Jim Crow policies designed to keep minorities, and African-Americans in particular, from voting. While Florida's constitution automatically results in a loss of a right to vote upon conviction of a felony, the state's governors are in charge of deciding how those rights get restored.

The current system requires former felons to wait at least five years after completing everything associated with their sentence before getting back their right to vote. The applicant then goes in front of a four-member panel headed by the governor. With the way the rules were written, Gov. Scott has "unfettered discretion to deny clemency at any time, for any reason."

Currently, the board's decisions require analysis of a variety of factors, including drug and alcohol use, as well as things that are harder to define, like "level of remorse". Some cases have been rejected simply because of a traffic ticket, requiring the applicant to wait another two years before re-applying. At this point, the state of Florida has a 10,000+ person backlog.

Judge Walker outlined the arbitrariness and broad powers of the board with an anecdote of a white man who was convicted of casting an illegal ballot for Gov. Scott in 2010. When Gov. Scott asked this individual about his illegal vote, the man laughed and stated that he voted for Gov. Scott. Gov. Scott answered with "I probably shouldn't respond to that" and within second, restored the man's right to vote.

Four similar cases involving African Americans had the opposite result, with the men having their applications denied. In fact, Judge Walker noted that those who "invoked their conservative beliefs and values" had their rights restored, but others, especially those who criticized felon disenfranchisement, were less likely to receive clemency.

Restoring the right to vote was much quicker and less demanding under Gov. Scott's predecessor, Rep. Charlie Crist. During Crist's time as governor, around 154,000 people had their voting rights restored. In the seven years since Gov. Scott took over, less than 3,000 people have had the same restoration. This has resulted in more than 20% of Florida's African-American voting-age population without the right to vote.

This makes the upcoming vote to automatically restore the right to vote that much more important. An amendment, appearing in the November 2018 vote, gathered 799,000 valid signatures, obtaining official approval to from state officials to appear on the ballot. The vote will require at least 60% of Floridians to vote in favor of this ballot. This is especially important, as Gov. Scott will run for Senate, taking his policies to the national stage.

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