Just hours before Gov. Rick Scott and the Florida Cabinet were scheduled to meet late Wednesday, attorneys for the state filed an emergency motion with a federal appeals court to try to delay a deadline for revamping the process of restoring felons’ voting rights.
The motion, filed Wednesday in the Atlanta-based 11th U.S. Circuit Court of Appeals, also raised the possibility that the state could take the dispute to the U.S. Supreme Court.
The 11th-hour maneuvering came as Scott and Cabinet members, who act as the state Board of Executive Clemency, prepared to meet by phone at 9:30 p.m. to address an order by U.S. District Judge Mark Walker that they overhaul the vote-restoration process by Thursday.
Attorney General Pam Bondi’s office on April 6 asked the appeals court for a stay of Walker’s order. But as of 5 p.m. Wednesday, the appeals court had not issued a ruling on that stay request.
With time dwindling, Bondi’s office filed an emergency motion seeking a “temporary and limited stay of the part of the district court’s order requiring appellants (Scott and the Cabinet) to ‘promulgate’ and ‘file’ new rules of executive clemency by April 26, 2018” while the April 6 stay request remains pending.
Also, the emergency motion asked for 10 additional days to allow the state to go to the U.S. Supreme Court if the appeals court denies the stay.
“This (appeals court) should have a fair chance to assess the stay-related arguments submitted by the parties, and appellants should have a fair chance to seek relief from this court and the Supreme Court before promulgating new rules of executive clemency,” the emergency motion said. “Absent a temporary and limited stay of the April 26 deadline, the Board (of Executive Clemency) will be required to act within the next day — before this court or the Supreme Court has had an opportunity to decide whether that part of the injunction should be stayed pending appeal.”
The appeals court did not immediately rule on the emergency motion, which was opposed by attorneys for the plaintiffs in the case, the state filing said.
The arguments at the appeals court came after Walker, in a series of harshly worded rulings, found the state’s vote-restoration process violated First Amendment rights and equal-protection rights of felons. Last month, he gave Scott and the board until Thursday to overhaul what the judge called a “fatally flawed” process and rejected a request by Bondi to put his order on hold.
Scott and the board immediately appealed Walker’s decision and asked the appellate court to put a stay on what the governor’s office branded a “haphazard clemency ruling.”
Scott’s highly unusual move Tuesday night to set a clemency meeting for 9:30 p.m. Wednesday was designed to comply with a Florida law requiring a 24-hour notice for clemency board meetings. Details about what the board might consider as a replacement for the current system had not been made available by Scott’s office.
The board members planned to meet by telephone, but the public “will have an opportunity to provide input at the beginning of the meeting” in the Cabinet room in the Capitol, according to an email from Scott’s office.
The restoration of felons’ rights has long been a controversial legal and political issue in Florida, with critics of the state’s process comparing it to post-Civil War Jim Crow policies designed to keep blacks from casting ballots.
Florida, with about 1.6 million felons, is considered an outlier in a nation where more than three dozen other states automatically restore the right to vote for most felons who have completed their sentences.
After taking office in 2011, Scott and Bondi played key roles in changing the process to effectively make it harder for felons to get their rights restored.
Under the current process, felons must wait five or seven years after their sentences are complete to apply to have rights restored. After applications are filed, the process can take years to complete.
Since the changes went into effect in 2011, Scott — whose support is required for any type of clemency to be granted — and the board have restored the rights of 3,005 of the more than 30,000 convicted felons who’ve applied, according to the Florida Commission on Offender Review. There’s currently a backlog of 10,085 pending applications, according to the commission.
In contrast, more than 155,000 ex-felons had their right to vote automatically restored during the four years of former Gov. Charlie Crist’s tenure, according to court documents in the lawsuit filed by the Fair Elections Legal Network and the law firm Cohen Milstein Sellers & Toll PLLC on behalf of nine felons.
Siding with the plaintiffs, Walker in a March 27 ruling chastised Scott and other state officials and 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 scalded state officials for threatening to do away with the rights-restoration process all together and gave the clemency board until Thursday to “promulgate specific standards and neutral criteria” to replace the current “nebulous criteria, such as the governor’s comfort level.”
Walker also cautioned that there is a risk that the clemency board “may engage in viewpoint discrimination through seemingly neutral rationales” 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 in March. The judge did not specify a particular process but ordered that “Florida’s corrected scheme cannot be byzantine or burdensome.”
Arguing that they needed more time to craft new regulations, the state’s lawyers asked Walker to put his decision on hold, again drawing a rebuke from the judge.
“Rather than comply with the requirements of the United States Constitution, defendants continue to insist they can do whatever they want with hundreds of thousands of Floridians’ voting rights and absolutely zero standards,” Walker wrote in a six-page decision April 4. “They ask this court to stay its prior orders. No.”
Scott has steadfastly defended the state’s process, saying it is founded on a 150-year old system enshrined in the state Constitution.
A Scott spokesman, John Tupps, lashed out at the judge after Walker refused to put his order on hold.
“Judge Walker haphazardly ordered elected officials to change decades of practice in a matter of weeks. This is completely reckless and does not give the victims of crimes the voice they deserve,” Tupps said in a statement this month. “The governor will always stand with victims of crimes, not the criminals that commit heinous acts. Let’s remember, these criminals include those convicted of crimes like murder, violence against children and domestic violence. The court of appeals should issue a stay immediately.”
In seeking a stay from the 11th Circuit, Bondi’s lawyers reiterated that the state needs more time to answer a slew of questions regarding the vote-restoration process.
“The issue is not whether the board could unilaterally prescribe new rules in a short span of time … but whether the state’s policymakers and citizenry — including but not limited to the board — should be afforded sufficient time to carefully consider the important issues at hand,” the lawyers wrote.
The legal tangle involving Scott, the federal judge and the felons in the case comes months before Floridians will decide whether felons should automatically have their voting rights restored. A political committee known as Floridians for a Fair Democracy collected enough petitions to put a constitutional amendment on the ballot that would automatically restore voting rights to felons who have served their sentences, completed parole and paid restitution.
Murderers and sex offenders would be excluded. The amendment, if approved by 60 percent of voters, could have an impact on about 600,000 Florida felons, according to supporters of the measure.