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Judge orders new system for restoring rights

A federal judge permanently blocked Florida’s “fatally flawed” process of restoring voting rights, giving Gov. Rick Scott and the Board of Executive Clemency a month to come up with a new system of providing ex-felons the right to vote.

In Tuesday’s order, U.S. District Judge Mark Walker repeatedly chided Scott and the state clemency board — comprised of Scott, Attorney General Pam Bondi, state Chief Financial Officer Jimmy Patronis and Agriculture Commissioner Adam Putnam — for the current restoration process and for threatening to scrap the system altogether after the judge last month struck down the process as unconstitutional.

Walker, siding with the voting-rights group Fair Elections Legal Network, last month found that the state’s clemency system is arbitrary and violated First Amendment rights and equal-protection rights under the U.S. Constitution’s 14th Amendment.

In his Feb. 1 order, Walker asked both sides to propose a new method to restore voting rights to ex-felons, who now must wait five or seven years after their sentences are complete to apply to have their rights restored in a process Walker said gives “unfettered discretion” to the board.

In a brief filed last month, attorneys for the state argued that Florida could permanently do away with the restoration of civil rights, sparking a rebuke from Walker in Tuesday’s order.

“This court is not the Vote-Restoration Czar. It does not pick and choose who may receive the right to vote and who may not,” Walker began Tuesday’s 22-page order.

Walker accused the state of choosing to “essentially repackage the current scheme” that would allow Scott and the clemency board “to do, as the governor described, ‘whatever we want’ in denying voting rights to hundreds of thousands of their constituents.”

“This will not do,” Walker wrote.

On the other side, the plaintiffs asked Walker to restore the right to vote to former felons who had completed their sentences and had already gone through a five- or seven-year waiting period.

“But such relief is beyond the scope of this court’s authority,” Walker wrote, adding that “any perceived policy weaknesses” regarding the restoration of voting rights can be cured through ballot initiatives or legislative acts.

While Walker did not lay out a new process or establish new time limits, the judge ordered the board to move forward with time constraints “that are meaningful, specific, and expeditious.”

“Absent extraordinary circumstances, this court cannot conceive of any reason why an applicant at any point must wait more than one election cycle after she becomes eligible to apply for restoration,” the judge wrote.

Scott was instrumental in establishing the more onerous restoration-of-rights process almost immediately after he took office in 2011.

Scott spokesman John Tupps said Tuesday it is up to “officials elected by Floridians, not judges … to determine Florida’s clemency process for convicted felons.”

“This is outlined in Florida’s Constitution and has been in place for more than a century and under multiple gubernatorial administrations,” Tupps said in a statement. “The governor continues to stand with victims of crime. He believes that people who have been convicted of felony offenses including crimes like murder, violence against children and domestic violence, should demonstrate that they can live a life free of crime while being accountable to our communities.”

Walker’s order found that the restoration-of-rights portion of Florida’s Constitution, along with the executive clemency rights-restoration process, run afoul of the U.S. Constitution.

Relying on a footnoted quote from legendary screen character Rocky Balboa, Walker mocked the defendants, writing that they claimed “the current scheme is all sunshine and rainbows.”

And Walker invoked history as a lesson in the significance of “free association and free expression to choose public officials” to represent people and advance public policy.

“These interests are why Americans launched a revolution against perceived unfettered discretion in the hands of one high-ranking official, King George III,” Walker wrote.

Walker also cautioned that there is a risk that the clemency board “may engage in viewpoint discrimination through seemingly neutral rationales” such as traffic citations or a “perceived lack of remorse” that “serve as impermissible” masks for censorship.

“Therefore, the board must promulgate specific standards and neutral criteria to direct its decision-making,” Walker ordered.

The standards and criteria “cannot be merely advisory, a Potemkin village for anyone closely reviewing the scheme,” the judge elaborated, instructing the board not to rely “on whims, passing emotions or perceptions.”

“Establishing safeguards against viewpoint discrimination should be the board’s paramount goal following this order,” Walker instructed.

Scott and the clemency board “balk at injunctive relief” partly because of “a presumption of regularity,” Walker wrote.

“This argument boils down to ‘trust us — we got this,’ ” he wrote.

Walker also took note of “problems of potential abuse,” especially when clemency board members — who are statewide elected officials and who may be running for re-election or another office — “have a personal stake in shaping the electorate to their perceived benefit.”

“Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people,” Walker wrote, quoting from a seminal U.S. Supreme Court decision in a case known as Citizens United v. Federal Election Commission.

“Florida’s current scheme inverts that important democratic mechanism. It cannot do so anymore,” the judge wrote.

Walker ordered the clemency board to devise a constitutionally sound program with “specific, neutral criteria that excise the risk — and, of course, the actual practice of — any impermissible discrimination, such as race, gender, religion or viewpoint.”

Walker did not specify any particular process or criteria, but ordered that “Florida’s corrected scheme cannot be byzantine or burdensome.”

Walker also rejected arguments that the clemency board can’t handle what could be hundreds of thousands of applications for rights restoration.

“It is no excuse that the board lacks resources to abide by the federal Constitution’s requirements. If the board pursues policies that sever hundreds of thousands of Floridians from the franchise and, at the appropriate time, hundreds of thousands of Floridians want their voting rights back, the board must shoulder the burden of its policies’ consequences,” Walker wrote. “They cannot continue to shrug off restoration applications indefinitely.”

Walker also chastised Scott and the board for threatening to put an end to the rights-restoration process.

Even though he found that the state’s “arbitrary slow drip” of restoring rights violates the U.S. Constitution, “that does not mean defendants can shut off the spigot of voting rights with a wrench, yank it from the plumbing, and throw the whole apparatus into the Gulf of Mexico,” Walker wrote.

“Having lost their ability to re-enfranchise citizens at a snail’s pace guided by absolutely nothing, Defendants threats to arbitrarily and completely end the vote-restoration scheme is tantamount to picking up one’s marbles and going home,” he scolded.

The News Service of Florida provides journalists, lobbyists, government officials and other civic leaders with comprehensive, objective information about the activities of state government year-round.

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