Under Florida’s constitution, a person convicted of a felony loses the right to vote. That same constitution has authorized the restoration of the right to vote and leaves it to the Florida legislature to create the process by general law. Thus, whatever political party is in the majority, that party can determine the process for restoring one’s right to vote. In Florida, the general law authorizes the governor to determine whose voting rights should be restored. The governor needs the vote of two members of the clemency board to restore one’s right to vote. The governor alone, however, has the right to deny clemency “at any time for any reason.” The clemency board generally meets four times a year. Applicants are not required to attend their hearings. If applicants attend, they may speak for no more than five minutes. Others may speak in the applicant’s favor, but the applicant’s presentation cannot exceed ten minutes.
On February 1, 2018, Judge Mark Walker, a federal district court judge in Tallahassee, Florida, issued a forty-three page ruling regarding restoring rights to felons who have finished serving their sentences who seek to get their civil rights restored. In finding the Florida process unconstitutional, the court wrote, “Florida’s Executive Clemency Board has, by rule, unfettered discretion in restoring voting rights. ‘We can do whatever we want,’ the Governor said at one clemency hearing.” Judge Walker then described an interaction from a clemency hearing which was illustrative of the lack of any objective or concrete criteria which Florida’s Executive Clemency Board must follow in determining who should have their voting rights restored. “One need not search long to find alarming illustrations of this scheme in action. In 2010, a white man, Steven Warner, cast an illegal ballot. Three years later, he sought the restoration of his voting rights. He went before the state’s Executive Clemency Board, where Governor Scott asked him about his illegal voting. ‘Actually, I voted for you,’ he said. The Governor laughed . ‘I probably shouldn’t respond to that.’ A few seconds passed. The Governor then granted the former felon his voting rights.”
The court’s opinion describes the many hurdles that former felons must overcome to be able to vote. First, the court noted, there is a waiting period of at least five years and possibly seven years from the completion of their sentence before former felons can apply. Completion of the sentence includes completion of any including probation or parole, and satisfaction of any fines. Some of the fines can be as much as $250,000.00. The application is then reviewed by a commission. The commission “investigation” can include criminal and traffic records, payment of fines, alcohol and substance use, voter registration information, and any input from the judiciary, state attorneys, and victims. The investigative report is then sent to the clemency board. The board can consider the information in the investigative report, “drug and alcohol use, traffic violations, whether the applicant has voted despite legally being disenfranchised, employment status, family, and the Board’s perceptions on the applicant’s attitude, level of remorse, and whether she has turned her life around.” Any applicant denied clemency has to wait at least two years to reapply. Prior to Rick Scott being elected governor, the prior governor, then Republican Charlie Crist, had instituted a more streamlined process which led to the restoration of rights for more than 154,000 former felons in just four years. In marked contrast, only 3,000 former felons had their rights restored during a seven year period while Rick Scott served as governor.
Judge Walker, in his lengthy opinion, found the process violative of the First Amendment. Although the Fourteenth Amendment of the U.S. Constitution allows a state to disenfranchise a convicted felon, it does not allow a state to do so for an arbitrary reason. “When a state institutes a process to restore voting rights to felons who have completed their sentences,” it cannot be arbitrary. The First Amendment prohibits vesting unconstrained discretion in government officials.
In addition to the unbridled discretion, the court found that the lack of any time limits for the clemency board to rule on applications was unconstitutional as a violation of the First Amendment. The court noted that the lack of time limits to rule had already been problematic. In one case, Governor Rick Scott had not merely forbid re-applying for two years, he prohibited a 54 year old man from reapplying for 50 years. In another instances, other board members failed to provide any time when the person could reapply. In other circumstances, Governor Scott required the applicant to wait anywhere from four to eleven years before reapplying. Governor Jeb Bush, who served from 1999 to 2007, had also required “more time” before an applicant’s rights were restored. These examples demonstrate the lack of fairness caused by the state’s failure to provide any time frames for ruling on the applications. More than one-tenth of Florida’s voting population—nearly 1.7 million as of 2016—cannot vote because they have not had their voting rights restored. More than one in five - 20 percent - of Florida’s African American voting-age population cannot vote.
“Florida’s vote-restoration scheme providing government officials’ with unfettered discretion and no meaningful time restraints on the exercise of that discretion violates the First and Fourteenth Amendments.” wrote the judge. The court set the case off for two weeks to allow the parties to propose remedies to correct the fundamentally flawed process.