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Hello, this is Summary Judgment, a podcast offering easy-to-understand explanations of major court cases as they are decided.  I’m Alan Mygatt-Tauber.

This week we’re discussing Hand v. Scott, a Northern District of Florida case about felon reinfranchisement.

Like many states, Florida strips the right to vote from every man and woman who commits a felon.  In order to vote again, disenfranchised citizens must appear, in the court’s words kowtow, before a panel made up of several high-level government officials over which Florida’s Governor has absolute veto authority.  The panel has no standards to guide it.

Under the rules of the Executive Clemency Board, it has unfettered discretion in restoring voting rights, or not.  The Rules require that any felon must serve their sentence, any parole, probation and pay any fines, and then wait either 5 or 7 years before applying for reinfranchisement.  There is no time limit in which the Board must act.  If the Board denies restoration of voting rights, an applicant may not reapply for at least two years.

A group of nine former felons brought a facial challenge to Florida’s reinfranchisement scheme, arguing that it violates both their First and Fourteenth Amendments.  Both parties agreed on the underlying facts, but disagreed over the application of the law.  The Court was ruling on two cross-motions for summary judgment.

Plaintiffs raised four arguments: 1) that Florida’s reinfranchisement scheme, which includes unfettered discretion, violates their First Amendment rights to free association and free expression; 2) that the use of unfettered discretion violates their Fourteenth Amendment right to Equal Protection of the laws; 3) that the lack of clear time limits violates the First Amendment; and 4) that the five and seven year waiting periods are unconstitutional.

The defendants respond that once a felon loses the right to vote, he or she loses all interests associated with that right, including those under the First Amendment, until those voting rights are restored.  The Court called this reasoning to be “nonsensical.”  It held that even the loss of voting rights does not deprive a felon of a vote-restoration process free from the First Amendment’s protections.

The Court addressed both of the Plaintiffs’ First Amendment claims before turning to the Fourteenth Amendment.

The Court began with a recognition that Section 2 of the Fourteenth Amendment explicitly allows felon disenfranchisement.  But it noted that it is well settled that a state cannot disenfranchise a convicted felon if motivated by racial animus, nor for an arbitrary reason.  The Court reasoned that if a state cannot disenfranchise for arbitrary reasons, it cannot do so in a manner “repugnant to the First Amendment.”  To this end, the Court held that the pathway back to full citizenship cannot be tainted by even the slightest stench of viewpoint discrimination.    A state need not provide for felon reinfranchisement.  But once it does, its process cannot offend the Constitution.

The Court acknowledged that the question before it was one of first impression.  But based on prior precedent, it found that the Florida restoration scheme violates both the First Amendment rights to free association and free expression.

The Court noted that the right to free association receives special protection in the realm of political association.  Courts are deeply averse to state laws, regulations, and schemes that threaten political associations by favoring one association, such as a political party, over another.  Since there are no standards on Florida’s scheme, there is nothing that prevents the Governor from rejecting all reinfranchisement requests from Democrats, while allowing all such requests from Republicans, or vice versa.

Furthermore, government expression of political expression is also repugnant to the First Amendment.  The Court noted that while the Supreme Court has never clearly characterized voting as a form of expression, and explicitly declined to do so in 1966, it has never severed the right to vote from the right to expression either.  And recently, in the Citizens United case, Justice Stevens defined voting as a form of speech.  Other justices have also expressed the opinion that voting constitutes speech in other contexts.  Moreover, the Court has found First Amendment implications in partisan redistricting, voter registration and other activities surrounding voting.    The Court concluded that it is inconsistent to find that corporate expenditures or voter-registration are core expressive activities, but that voting, the end result of these other protected activities, is somehow non-expressive.  Indeed, the Court believed that voting is the citizen’s ultimate form of political expression.

With this background, the Court then turned to the individual claims made by plaintiffs, namely that allowing Florida officials to have unfettered discretion in denying the right to vote, Florida’s restoration scheme violates the First Amendment.  It held that such unfettered discretion, amounting to mythical standards, violates Plaintiffs’ constitutional rights.  The Supreme Court has consistently struck down laws consigning First Amendment-protected activities to the whim of the administrator. In such cases, the Courts have consistently applied strict scrutiny.

Here, the Court declares, this is not a close question.  While Florida may have an interest in limiting the franchise to responsible voters, the means Florida has chosen to serve that interest do not survive strict scrutiny review, because it does not use the least-restrictive means to pursue these interests.  Additionally, it risks viewpoint discrimination, and even this risk runs afoul of the First Amendment according to the Supreme Court.  In Florida, the risk of such discrimination was well documented, as the Plaintiffs provided several instances where former felons who professed political views amenable to the Board’s members received their voting rights, while those who expressed contrary views, or even just criticized the system, did not.

The Defendants make one final argument, that vote restoration is a form of executive clemency, and it is well settled that clemency decisions are rarely, if ever, appropriate subjects for judicial review.  But here, the Court is not examining any specific decision, but rather its structure and unfettered discretion, which place it on a different plane.  But even so, Executive Clemency is not beyond judicial review if it violates the Constitution.

Because the unfettered discretion granted to the Board violates the First Amendment, the Court granted the Plaintiffs’ Motion for Summary Judgment and denied the Defendants’ motion as to Count 1.

The Court then moved to Count 3, which also alleged violations of the First Amendment.  Here, the Court found that the lack of any time limits for making a decision creates the risk of arbitrary delays and arbitrary continued disenfranchisement.  While some delay for investigation is legitimate, the Florida scheme has no time limits whatsoever.  The Supreme Court has long held that a scheme that fails to set reasonable time limits on the decision maker creates the risk of indefinitely suppressing permissible speech.  For this reason, the Court sided with the Plaintiffs on Count 3.

The Court then turned to Count 2, the claim that Florida’s scheme violates the Equal Protection Clause of the Fourteenth Amendment.  The State again argued that since clemency is an “act of grace” it was inappropriate for Courts to review it.  But the Court held that it was bound by boundaries enacted by the Constitution, not to ethereal concepts like “acts of grace.”  And one of the Constitution’s firm boundaries is that states may not deny citizens equal protection of the laws.  Again, because the Board has unfettered discretion to pick and choose who shall have their rights to vote restored, the scheme allows for decisions which are, at best, arbitrary and disparate, and at worst, discriminatory.  Therefore, the Court found for the Plaintiffs on Count 2.

Finally, the Court addressed Count 4 – that the waiting periods after completing all sentences and additional conditions, are unconstitutional.  Here, the Court found that the waiting period were reasonable restrictions under the Constitution.  Because they apply to all felons equally, they are allowable and do not run the risk of viewpoint discrimination.  Therefore, the Court found for the Defendants on Count 4.

It also refused to strike the disenfranchisement statutes as unconstitutional, because disenfranchisement finds affirmative sanction in Section 2 of the Fourteenth Amendment.  It is only the process of restoring those rights the Court found unconstitutional.

The Court then ordered the parties to submit briefs on the appropriate relief, based on its findings.  It ordered briefing by February 12, 2018.  Because the Court’s decision, striking down the reinfranchisement process, has the perverse result of preventing any felons from having their rights restored, it felt it necessary to move along in a swift manner.

The Court concluded by noting that it is not blind to nationwide trends regarding access to the right to vote.  In noted that in the prior gubernatorial administration, 154,000 felons had their rights restored in 4 years.  In the seven years Rick Scott has been Governor of Florida, less than 3,000 people have had their rights restored.  More than one tenth of Florida’s population, nearly 1.7 million as of 2016, cannot vote.  More than 20% of the African American population in Florida is disenfranchised.  When the risk of state-sanction viewpoint discrimination skulks near the franchise, the Court held it was its duty to excise such potential bias from the clemency process.

I believe that the Court made the right decision here, in nearly every respect.  While a bit of a stretch from current precedent, the Court’s logic regarding voting as an expressive act seems right to me.  If telling someone “Vote for Jones” is expressive, I cannot see how actually casting said vote would not be.  As such, I think the Court’s decision was correct.  Based on some of the anecdotes highlighted by the Court, it appears that there is a real risk of discrimination based on partisanship if nothing else, within the Florida restoration process.

My only fear is that the Governor and legislature will use this decision as an excuse to eliminate the voter restoration process itself.  As the Court noted, the Fourteenth Amendment specifically authorizes felon disenfranchisement, and nothing in that Amendment requires that this process be reversible.  Indeed, the Court itself noted that no state is required to authorize the return of voting rights once removed.  Because felons cannot vote, they lack a voice in the political process.  I only hope that this decision does not end up doing more harm than good.

And that’s our show.  Thanks so much for listening.  Links to the decision and other commentary are available in the shownotes to this episode at our website, summaryjudgmentpod.com.  You can reach out by e-mail at summaryjudgmentpod@gmail.com. You can like us on Facebook.  Or you can tweet thoughts and ideas to @podcastSJ.  Please remember to rate and review the podcast.  And if you like what you heard, please recommend the podcast to a friend!  See you next time for another Summary Judgment.

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