At the end of 2013, Stephen A. Warner went before Florida’s Executive Clemency Board to request the restoration of his voting rights. Gov. Rick Scott, who presides over the board, promptly pointed out that Warner had been convicted of felony voter fraud in 2010. “I voted for you,” Warner told him. “I probably shouldn’t respond to that,” the governor said with a laugh. He then granted Warner’s request, restoring his right to vote in Florida. That same day, he denied dozens of applications from ex-felons who declined to profess their political affiliation.
On Thursday, U.S. District Judge Mark Walker ruled that Florida’s capricious and frequently partisan process for the restoration of ex-felons’ voting rights violates the First and 14th Amendments. His decision could enfranchise many of the 1.7 million Floridians currently denied suffrage due to their criminal records. It also proposes a robust constitutional safeguard for the right to vote that draws from Citizens United to expand access to the ballot. If Walker’s ruling stands on appeal, it will tilt Florida’s electorate to the left for decades.
Florida’s tradition of disenfranchising ex-felons for life is a remnant of white supremacy.
Following the Civil War, many Southern states, including Florida, used felon disenfranchisement laws to strip voting rights from newly freed blacks. Today, the law continues to function as intended: One in 5 black Floridians cannot vote due to felon disenfranchisement. Voting rights advocates have challenged this disproportionate burden on black voters under the Equal Protection Clause and the Voting Rights Act. But in 2005, the U.S. Court of Appeals for the 11th Circuit upheld the law, noting that the 14th Amendment expressly permits the denial of suffrage “for participation in rebellion, or other crime.”
In 2018, Floridians will vote on a constitutional amendment to restore voting rights to most rehabilitated felons. But before that amendment gained enough signatures to reach the ballot, the Fair Elections Legal Network challenged a specific aspect of Florida’s disenfranchisement scheme: the clemency process. Under state law, ex-felons may only regain the right to vote by petition of an Executive Clemency Board that consists of the governor, the attorney general, the chief financial officer, and the commissioner of agriculture. To recover her voting rights, the ex-felon must persuade at least three board members that she deserves clemency. The governor also has a veto over any application.
During Gov. Jeb Bush’s two terms, the board granted 73,508 applications. During Gov. Charlie Crist’s single term, the board granted 155,315 applications. But since 2011, when Scott took office, the board has granted just 2,488 applications. Scott reversed the policies of his predecessors that streamlined the process, instead requiring all applicants to plead before the board. He also imposed a five- to seven-year waiting period—to begin after a felon has completed his sentence and probation or parole, and paid all fines—before a disenfranchised voter can submit his application.
No standards govern this process, and Scott has repeatedly touted the arbitrary nature of the board’s decisions. “There is no law we’re following,” he declared at a hearing in March 2016. “We get to make our decisions based on our own beliefs.” Those beliefs appear to be that Republicans are more deserving of voting rights than Democrats. As the plaintiffs’ lawsuit makes painfully clear, Scott is more likely to approve an application when the ex-felon indicates that he is a Republican. In case after case, the governor agreed to restore ex-felons’ voting rights after they brought in witnesses to attest to their “conservative principles.” He then denied the applications of ex-felons with no conservative credentials.
In its suit, the Fair Elections Legal Network argues that Scott’s practice of restoring voting rights on the basis of political affiliation—and the unpredictable system that allows for such favoritism—violates the First Amendment. That makes sense, as the First Amendment generally bars the government from burdening expression and association on the basis of viewpoint. But there’s a problem: The Supreme Court has never squarely held that the First Amendment protects the right to vote. To decide whether it does, Walker surveyed a number of Supreme Court precedents, including a pair of opinions by Justice Samuel Alito strongly implying that the act of voting constitutes a form of protected expression. Then he analyzed various campaign finance decisions, including Citizens United, that invalidated restrictions on political expenditures and donations. Walker concluded:
It is inconsistent to find that corporate expenditures spent during a campaign or filling out a voter-registration form are core expressive activities, but that voting—the end-result of these other protected activities—is non-expressive. …
In our democratic society where the people are sovereign, voting is the citizen’s ultimate form of political expression. By first seeking the vote and then choosing to cast a ballot, a citizen expresses support for the franchise as a legitimate institution—the beating heart of our democratic government. By choosing not to vote, she may express dissatisfaction with the government or a particular outcome. And by voting, a citizen expresses her political point of view.
Walker then asked whether the clemency board’s “limitless power over plaintiffs’ vote-restoration violates their First Amendment rights to free association and free expression.”
“It does,” he wrote. “This should not be a close question.” Subjecting the scheme to strict scrutiny, Walker found that the board is vulnerable—and frequently succumbs— to flagrant viewpoint discrimination. The board favors Republicans while disfavoring Democrats. Those who “kowtow” to the board may have their right to vote restored; those who criticize it remain disenfranchised. The board’s “unfettered” ability to discriminate against applicants on the basis of viewpoint, Walker held, cannot stand under the First Amendment. He ordered the state government to devise a remedy that will redress this constitutional defect.
Walker’s ruling is important for several reasons. First, it tackles the country’s most egregious voter suppression scheme: Nearly one-quarter of America’s disenfranchised felons live in Florida, and no state makes it more difficult for ex-felons to restore their civil rights. As mentioned, the state is voting in November on a constitutional amendment to let most ex-felons vote again. But even if that fails, Walker’s decision could help streamline the re-enfranchisement process for more than 1 million Floridians.
Second, the ruling places the right to vote exactly where it belongs, at the heart of the First Amendment. He does so by quoting extensively from conservative precedents, which often speak broadly about the First Amendment’s protections for expressive political conduct. For instance, a 2014 decision striking down campaign contribution limits begins with the sweeping statement that “there is no right more basic in our democracy than the right to participate in electing our political leaders.” If the First Amendment shields citizens’ ability to give money to their preferred candidates, surely it also protects their right to cast a ballot for those candidates as well.
Third, Walker rejects the bizarre notion that felon disenfranchisement (and re-enfranchisement) is, as Scott put it, basically lawless. Yes, the Constitution permits states to suppress the franchise of ex-felons—but that doesn’t mean states can do so without regard to other constitutional protections. Florida could not restore felons’ voting rights on the basis of race, gender, or religious beliefs; it could not grant clemency to all Christians but deny it to all Jews. Similarly, a state can’t give its governor “unfettered discretion” to grant clemency on the basis of political association.
Thursday’s ruling won’t be the last word on this issue; the state has already indicated that it will appeal, and may find more sympathetic judges at the 11th Circuit. But Walker has crafted a watertight defense of voting rights that won’t be easy to overturn without assailing a huge chunk of modern First Amendment jurisprudence. Scott likes to remind clemency applicants that he can grant or withhold voting rights on a whim. It’s time for the judiciary to remind him Florida’s Executive Clemency Board does not operate outside of the Constitution.
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