ATLANTA (CN) — Attorneys representing Florida Gov. Rick Scott and members of the Florida state clemency board asked the 11th Circuit on Wednesday to reverse a district court ruling that declared Florida’s process for restoring the voting rights of felons unconstitutional.
In March, U.S. District Judge Mark Walker ruled against the state, holding its process for restoring the voting rights of felons unlawfully stacks the deck against their reinstatement.
An estimated 1.5 million convicted felons have been permanently disenfranchised as a result of the clemency system which was implemented in 2011.
Walker ruled that Florida’s system for voter re-enfranchisement violates the Constitution’s equal protection and freedom of expression guarantees by giving four state officials, including the governor, “unfettered discretion” to determine which felons may regain their civil rights.
Walker found that Florida’s vote-restoration scheme violates the First Amendment by granting the clemency board “broad, censorial power to prohibit hundreds of thousands of otherwise eligible voters from freely associating with political parties or freely expressing themselves through voting.”
“[The plaintiffs’] right to free association and right to free expression were denied under a fatally flawed scheme of unfettered discretion that was contaminated by the risk of viewpoint discrimination,” the ruling states.
“Defendants need only redraft rules that align the vote-restoration scheme within the boundaries of the law by cabining official discretion and providing meaningful time constraints for the Board’s decision-making,” it continues.
Just 473 applicants had their rights restored in 2016 under the current administration’s clemency rules, which allow the clemency board to make decisions free from any specific criteria.
In 2008, the number of restoration applications granted exceeded 85,000.
Walker ordered Gov. Scott and the state Cabinet, which together serve as the clemency board, to revamp the system by April 26, 2018 and replace it with a new system featuring more specific criteria.
Gov. Scott and the Cabinet asked the 11th Circuit to stay the order pending an appeal. The officials argued that a delay in implementing Walker’s order would help prevent disorder in two upcoming Florida elections.
Governor Rick Scott criticized U.S. District Court Judge Walker’s ruling in an April 16 statement.
“Judge Walker recklessly ordered elected officials to change decades of practice in a matter of weeks,” John Tupps, a spokesman for Gov. Scott, said. “The governor will always stand with victims of crimes, not criminals.”
The order was stayed by a three-judge 11th Circuit panel on April 25 which ruled that the felons failed to demonstrate that Florida’s voter-restoration scheme has a discriminatory purpose or effect.
The 11th Circuit panel also found that the Fourteenth Amendment “expressly empowers the states to abridge a convicted felon’s right to vote” and the First Amendment “provides no additional protection of the right to vote.”
On Wednesday, attorneys representing nine former felons claimed that Florida’s standard-less re-enfranchisement scheme and the clemency board’s use of “unfettered discretion” presents a “risk” of unfair treatment.
“What is the minimum amount of ‘fettering?’ What is the minimum amount for Florida to do? What can Florida do to make their system constitutional?” Chief U.S. Circuit Judge Ed Carnes asked.
“We would need to evaluate a new re-enfranchisement scheme, establish neutral criteria,” attorney Jon Sherman said.
“How would you avoid a moment of unfettered discretion?” U.S. Circuit Judge Elizabeth Branch asked.
“If Florida were to come up with a scheme that involved an application, looked at the felon’s criminal record, maybe ordered people to pay fines–,” Sherman replied.
“But there’s still discretion unless we impose automatic re-enfranchisement,” Branch interrupted. “And to the extent that there’s any discretion, in your view it’s unconstitutional.”
Sherman agreed that the exercise of discretion would be unconstitutional.
Attorney Amit Agarwal, arguing on behalf of Gov. Rick Scott and the Florida cabinet, told the panel that changes to the current system would represent a stark break from precedent.
“The implication is that there would be no discretion at all,” Agarwal said. “We would go from a situation where you have case law from this court and the Supreme Court establishing the exercise of discretion … There’s so many problems with this argument. You’d have irreconcilable case law when it comes to clemency proceedings.”
“It is undisputed that no case has ever held or implied that clemency decisions must be made pursuant to certain standards,” Agarwal argued.
“The consequences [of such a decision] could be stipulations for every other form of clemency, including restoration of the right to bear arms and presidential pardons. The federal pardon power could be rendered unconstitutional,” he warned.
According to the 11th Circuit’s ruling granting the state’s motion to stay the district court’s order, no First Amendment challenge to a felon-disenfranchisement scheme has ever been successful.
The judges did not indicate when they might render a decision in the case.
Voters will make a decision on the Voting Rights Restoration for Felons Initiative, also known as Amendment 4, at the polls on November 6.
If passed, the amendment will change the state’s Constitution to automatically restore voting rights to felons who have served their sentences and have not been convicted of murder or felony sex crimes.