Goodman: Florida’s system on ex-felon voting not just massively unfair. It’s ‘unconstitutional’

Florida Gov. Rick Scott (Colin Perkel/The Canadian Press via AP)

In 2010, an ex-convict in Florida named Steven Warner cast a ballot in an election. This is illegal, because unless felons jump through the hoops of a lengthy clemency process, felons in Florida are barred from voting for life.

Warner wanted his rights restored, and, after waiting the required five to seven years after completing all the terms of his sentence (prison, parole, probation, fines), he found himself three years later in front of the state’s Executive Clemency Board.

Gov. Rick Scott, who sits on the board along with his cabinet, asked Warner about his illegal voting.

“Actually, I voted for you,” Warner said.

Scott laughed, then said, “I probably shouldn’t respond to that.” A few seconds passed. Then Scott granted the former felon his voting rights.

Warner is white. But the board rejected five other former felons who had cast illegal ballots on that basis. Will it surprise anyone that four of those five were African-American?

This is the sort of arbitrary, imperious and no doubt politically motivated decision-making that U.S. District Judge Mark E. Walker cited in the stunning ruling he issued on Thursday evening, declaring Florida’s method of restoring felons’ rights unconstitutional.

The federal judge’s decision is an explosive truth-bomb aimed squarely at a system which gives the governor, much like a medieval king, “unfettered discretion to deny clemency at any time, for any reason.” Or as Scott himself said at one hearing, according to the ruling: “We can do whatever we want.”

“In Florida, elected partisan officials have extraordinary authority to grant or withhold the right to vote from hundreds of thousands of people without any constraints, guidelines or standards,” Walker wrote. “The question…is whether such a system passes constitutional muster. It doesn’t.”

His powerhouse ruling comes, coincidentally, nine days after state judges approved a measure for November’s ballot which, if approved by voters, will automatically restore voting rights of felons after they’ve served their sentences, except for murderers and sex offenders. It gives the drive for the much-needed Amendment 4 an incalculable boost.

And it is a withering attack on Scott, just as the two-term Republican is expected to announce a run for Senate against Sen. Bill Nelson, the Democratic incumbent.

For it is the miserly system that Scott established in 2011 to enable a few lucky ex-cons to have their rights restored that is flayed in Walker’s blistering decision.

Unlike the Voting Restoration Amendment drive — which has focused on the inequity of denying some 1.7 million Floridians their rights — Walker zeroes in on the extremely arbitrary way in which they might get those rights returned.

“To vote again, disenfranchised citizens must kowtow before a panel of high-level government officials over which Florida’s governor has absolute veto authority,” Walker writes. “No standards guide the panel.”

To be clear, the judge said it is constitutional for Florida to bar felons from voting for life, if the state wants to continue to be one of the three or four states in the nation to do so. “But once a state provides for restoration,” he writes, “its process cannot offend the Constitution.”

It is decidedly unconstitutional to have a system based on race, he writes. Or a system that’s so arbitrary that the governor can decide whether to grant the right to vote depending on whether that ex-felon is going to vote Republican or a Democrat. It’s unconstitutional to make ex-convicts meet standards of behavior that are never really defined — or as Walker scorchingly calls them — “frankly, mythical.”

The results of Scott’s mean-spirited system are perfectly clear. When Charlie Crist was governor, the then-Republican tried to end the state’s backwardness with executive clemency rules in 2007 that automatically restored voting rights for those who served sentences for lesser felonies. More than 155,000 felons got their rights back.

Scott overturned that, and then some. His 2011 rules, with their five- to seven-year waiting periods and demands for unspecified sterling behavior, are now often cited as the toughest in the nation. In the last seven years, just 3,000  people have received restorations.

And more than 10,000 people are on a backlog of cases waiting for hearings to have their rights restored.

“The context of these numbers is not lost on this court,” Walker writes. “More than one-tenth of Florida’s voting population — nearly 1.7 million as of 2016 — cannot vote because they have been decimated from the body politic. More than one in five of Florida’s African American voting age population cannot vote.

“If any of these citizens wishes to earn back their fundamental right to vote,” he adds, “they must plod through a gauntlet of constitutionally infirm hurdles. No more.”

Walker did not impose a solution — yet. He ordered lawyers for ex-cons and the state to file briefs related to remedies before Feb. 12.

So this ruling makes the second big development within two weeks with the potential to demolish Florida’s shameful status quo that prevents most ex-felons from reentering civil society despite having served their sentences.

On Friday came a third. The Constitution Revision Commission decided to consider the issue after Warner’s explosive ruling. The commission, which meets every 20 years to recommend possible amendments to the state constitution, had already considered several proposals aimed at automatically restoring rights for ex-felons. But members withdrew them after the voting-restoration petition drive got Amendment 4 onto the ballot, fearing that too many similar-sounding ballot initiatives would confuse voters and dilute all of the initiatives’ chances.

Would the same thing happen with a new ballot proposal aimed not at automatic restoration but at fixing the clemency process? That’s one of the next things to watch as the energy for reforming this long-stultified system gains unexpected momentum.