Florida’s disenfranchised ex-felons have little hope of casting a ballot in the 2018 election thanks to a last-minute judicial intervention. On Wednesday night, a panel for the 11th U.S. Circuit Court of Appeals stayed a February ruling holding that Republican Gov. Rick Scott’s process for restoring felons’ voting rights violated the First Amendment. The 11th Circuit’s 2–1 decision will allow Scott to continue favoring those would-be voters who support the GOP.
Only three states—Florida, Iowa, and Kentucky—permanently bar convicted felons from voting. Florida’s disenfranchisement scheme is the nation’s most draconian. The law is a white supremacist relic designed to strip voting rights from blacks. It bars about 1.5 million people from voting, including 21 percent of all voting-age black residents. These individuals may only regain their right to vote by applying individually to the Office of Executive Clemency, which consists of the governor, the attorney general, the chief financial officer, and the commissioner of agriculture. To recover his voting rights, an ex-felon must convince at least three board members he deserves clemency. The governor has veto power over any application.
During Republican Gov. Jeb Bush’s two terms, the board granted 73,508 clemency applications; during Gov. Charlie Crist’s one term, the board granted 155,315 applications. (Crist began his tenure as a Republican, then became an independent before leaving office; he later joined the Democratic Party.) Under Scott, by comparison, the board has restored the rights of just 3,005 voters out of more than 30,000 applicants. There is currently a backlog of 10,085 applications. Scott, who is now running for the Senate, has seized upon the fact that he has “unfettered discretion” to grant or deny applicants’ requests. “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.”
In February, U.S. District Judge Mark Walker ruled that this system violated applicants’ rights to free expression and association under the First Amendment. “Voting is the citizen’s ultimate form of political expression,” he wrote. “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.”
Walker found that Scott’s capricious manner of determining who can cast a ballot infringed on applicants’ rights to associate freely with a political party and express support for candidates. He also pointed to Scott’s apparent desire to suppress Democratic votes and favor likely Republican voters. In 2013, an applicant who had been convicted of felony voter fraud told Scott, “I voted for you.” Scott restored his right to the franchise. The governor then denied dozens of applications from individuals, most of them minorities, who did not proclaim their political affiliations. Ex-felons who profess their “conservative principles” and GOP leanings have a shot at receiving clemency from Scott. Those who do not were rejected under the flimsiest of pretexts. Walker held that these shenanigans are constitutionally impermissible and ordered the clemency board to devise new, neutral, consistent rules to use in restoring felons’ voting rights.
Shortly before the board was scheduled to meet on Wednesday night, however, the 11th Circuit stepped in to block Walker’s order and relieve Florida from having to standardize the clemency process. Writing for the majority, Judge Stanley Marcus pointed out that the 14th Amendment allows states to abridge suffrage for criminals, and the “general terms” of the First Amendment cannot curtail this “specific language.” Thus, a state that disenfranchises felons in a way that violates free expression is constitutional, because the state is merely exercising its constitutional authority.
That cannot be right. The Constitution’s Elections Clause also authorizes state legislatures to draw congressional districts. But the Supreme Court has repeatedly held that states cannot draw district lines in a manner that discriminates on the basis of race under the Equal Protection Clause. That clause speaks in “general terms,” in Marcus’ words, while the Elections Clause contains “specific language” tasking legislatures with redistricting. Yet the Supreme Court has ruled that the “general” guarantee of constitutional equality overrides a state’s right to gerrymander.
The 11th Circuit should’ve recognized the limitations the First Amendment places on Florida’s ability to disenfranchise felons. Instead, it abdicated its responsibility to protect free expression, leaving the individual right to vote less protected than a corporation’s right to electioneer. Florida residents will soon have an opportunity to right this wrong: In November, they will vote on a constitutional amendment to automatically restore the franchise to most felons. But disenfranchised Floridians’ ability to participate in the democratic process shouldn’t hinge on the goodwill of others. It is a fundamental right that should be subject to the outcome of no election, and the 11th Circuit erred badly in concluding otherwise.