CINCINNATI (CN) — Kentucky Governor Andy Beshear restored voting rights to nonviolent felons in 2019, but a group of convicted criminals argued Thursday that relief does not prevent a First Amendment challenge to the commonwealth's re-enfranchisement procedure.
The lawsuit was originally filed in 2018 against then-Governor Matt Bevin, a Republican, and claimed Kentucky's re-enfranchisement protocol for felons – involving a decision by the governor alone – violated the First Amendment because it gave the governor "unfettered discretion" over a criminal's voting rights.
Beshear, a Democrat, took office shortly thereafter and signed an executive order to restore voting rights to all in-state, nonviolent felons who completed their sentences and paid off any fines.
U.S. District Judge Karen Caldwell, an appointee of George W. Bush, dismissed the case in August 2020 and ruled Beshear's executive order provided the "non-arbitrary criteria" for reinstatement of voting rights the plaintiffs sought and, therefore, mooted the case.
"The governor's discretion is no longer unfettered and absolute because, under the Executive Order, the scheme now automatically re-enfranchises those who have been convicted of state-law felonies (with specific exceptions)," she said. "Plaintiffs seek a non-arbitrary system for restoring the franchise to convicted felons that is guided by objective criteria -- it appears that they have received that relief."
The convicts, some of which were not covered by Beshear's order because of out-of-state convictions, appealed to the Sixth Circuit, which determined their claims were not mooted.
Upon remand, Caldwell again dismissed the case in July 2022, this time for lack of standing. She determined the remaining plaintiffs had not suffered a concrete injury as a result of the re-enfranchisement scheme, especially considering two of the three had not even applied to have their voting rights restored.
The case was again appealed to the Sixth Circuit, and the convicted felons argued in their brief they were not required to apply for re-enfranchisement before they brought their First Amendment suit.
"The U.S. Supreme Court has ... repeatedly underscored that a plaintiff challenging such an arbitrary licensing system on unfettered discretion grounds is not required to first apply for and be denied a license to engage in that constitutionally protected conduct before filing suit," they said.
Caldwell erred when she considered the relief granted by the governor a "partial pardon," according to the plaintiffs, who urged the appeals court to render its own decision on the merits.
In its brief, the commonwealth argued the "mere possibility" one of the plaintiffs might be denied relief if they seek re-enfranchisement is insufficient to support a First Amendment claim, and also disputed their argument regarding Supreme Court precedent.
"A pardon is not an ongoing licensing scheme that allows the governor to consider plaintiffs' prior expression," it said. "It is a one-time act of clemency unassociated with plaintiffs' prior expression."
Attorney Jon Sherman of the Fair Elections Center in Washington, D.C., argued Thursday on behalf of the convicted felons and told the panel Caldwell erred when she decided the merits of the case and then "impermissibly backtracked" to dismiss on jurisdictional grounds.
U.S. Circuit Judge Chad Readler, an appointee of Donald Trump, questioned the attorney about the merits of his clients' case and asked why voting is expressive conduct under the First Amendment.
Sherman cited numerous U.S. Supreme Court cases, including Norman v. Reed and Anderson v. Celebrezze, both of which dealt with candidates seeking placement on a ballot, not individuals' right to vote.
Senior U.S. Circuit Judge Danny Boggs, a Ronald Reagan appointee, emphasized the distinction.
"Nobody knows how [a vote] comes out," he said. "Doesn't that make it not expressive?"
"Anonymity of speech does not negate the expressive conduct," Sherman answered.
Readler asked the attorney why at least two of his clients have not yet petitioned Beshear for restoration of their voting rights.
"Couldn't you just apply and get rulings [and appeal those]?" he asked. "Instead of this odd game? It seems to me there is a fairly clear path here."
Sherman pointed out such actions would only affect his three clients, and not the other convicted felons who might seek to regain their right to vote.
"They can call it a pardon or a partial pardon," he told the panel, "but 40 states are dealing with this outside of the clemency process. ... There's no effective way to know what's happening in this 'black box' system [of review by the governor]."
Taylor Payne, chief deputy of Beshear's general counsel, argued on behalf of the governor and was questioned immediately by Readler about why his client has not adjudicated the petition filed by Sherman's client.
"It's wild to me," Readler said. "Why has the governor sat on these applications? It just feels like you could make this case go away [with a decision]."
Payne denied Beshear is "dragging his feet" on the applications and emphasized each governor has his or her own criteria to determine whether a convicted felon is "worthy" of being re-enfranchised.
"Are there any criteria?" asked Senior U.S. Circuit Judge Helene White, a George W. Bush appointee. "Is there any internal definition of 'worthy?'"
The governor's attorney conceded there is no definition, but pushed back against the "black box" argument made by his opposing counsel.
"There is no right to timeliness on the decision or to impose outside procedural protections," Payne said. "Plaintiffs have lost any constitutional right to assert ... so there is no process of the governor licensing them to exercise those rights. They're gone."
During his rebuttal, Sherman pounced on the opportunity to use Payne's own words about the lack of definitive criteria against him.
"That is as clear an unfettered discretion violation as this court is ever likely to see," he told the panel.
No timetable has been set for the court's decision.
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