Feb. 1, a federal judge reviewing how Florida handles restoration of felons’ voting rights ruled it unconstitutional, because the process gives the Florida Executive Clemency Board sweeping, unregulated power to decide whether to re-enfranchise former felons. Tallahassee-based district judge Mark E. Walker decided that violates applicants’ First Amendment rights of free speech and association and Fourteenth Amendment equal protection rights.

In Hand v. Scott, a group of former felons — seven whose applications for restored voting rights had been rejected, and one whose pending application had not been acted on for several years — brought a head-on class-action challenge to the state’s process. Under the Florida constitution, felons automatically lose their voting rights. Depending on the severity of their offenses, Florida felons must wait either five or seven years after finishing their sentence, including parole, probation and payment of fines, before they can apply to the Executive Clemency Board in a bid to regain the right to vote.

The Board, created by the state constitution, consists of the governor and three other top-level state officials. The Board’s own rules expressly provide they aren’t intended to limit its authority, giving the agency what the judge termed “unfettered discretion” in weighing whether to restore voting rights. Further, the governor has “absolute veto authority,” and can use it for any time, for any reason. The Board also has no set timelines for making its decisions. There’s also a Florida Commission on Offender Review, which investigates, reviews applications and makes a recommendation to the Board on it, but – of course – that’s non-binding.

The state officials claimed felons who had been stripped of their voting rights also lose their other First Amendment rights, a position Judge Walker derided as “nonsensical.” Rather, states cannot act arbitrarily or discriminatorily in either removing or restoring voting rights. And without an even-handed, uniform procedure for deciding whether to restore felons’ voting rights, Florida could not be said to have provided all felons with equal protection of their rights. The judge noted courts rightly view “with profound suspicion” giving government agencies “unfettered discretion over protected constitutional rights.”

Florida leads the nation in the number of voters disenfranchised due to past felony convictions, with nearly 1.7 million. It’s one of only four states – along with Iowa, Kentucky and Virginia – where voting rights are not automatically restored after felons complete their sentence.

The judge’s 43-page decision stopped short of proposing a remedy for the state’s constitutionally unacceptable system, ordering both sides to offer their suggestions for him to consider. A spokesman for Gov. Rick Scott (R) suggested that the state would likely appeal Judge Walker’s decision, however. In Gov. Scott’s five years in office, fewer than 2,000 former inmates have had their voting rights restored, and about 20,000 more applications are still pending.

One way or another, the subject of restoring voting rights for released felons is likely to be a subject of contention this year in Florida. Supporters of a constitutional amendment to make voting rights restoration recently earned a place on the November ballot; if approved by 60 percent of voters, most former felons will no longer have to apply to the Florida Executive Clemency Board to regain their voting rights.

Christopher Zoukis, the author of the Federal Prison Handbook (Middle Street Publishing, 2017), Prison Education Guide (Prison Legal News Publishing, 2016), and College for Convicts (McFarland & Co., 2014), is a contributing writer to Huffington Post, Prison Legal News, New York Daily News, Criminal Legal News, and the New York Journal of Books. He can be found online at PrisonerResource.com.

About Christopher Zoukis, MBA

Christopher Zoukis, MBA, is the Managing Director of the Zoukis Consulting Group, a federal prison consultancy that assists attorneys, federal criminal defendants, and federal prisoners with prison preparation, in-prison matters, and reentry. His books include Directory of Federal Prisons (Middle Street Publishing, 2020), Federal Prison Handbook (Middle Street Publishing, 2017), Prison Education Guide (PLN Publishing, 2016), and College for Convicts: The Case for Higher Education in American Prisons (McFarland & Company, 2014).