Hand v. Scott

285 F.Supp.3d 1289

James Michael HAND, et al., Plaintiffs,

v.Rick SCOTT, in his official capacity as Governor of Florida and member of the State of Florida's Executive Clemency Board, et al., Defendants.

Case No. 4:17cv128–MW/CAS

United States District Court, N.D. Florida, Tallahassee Division.

Signed February 1, 2018

Diana L. Martin, Theodore Jon Leopold, Poorad Razavi, Cohen Milstein Sellers Etc PLLC, Palm Beach Gardens, FL, Brittnie R. Baker, Jonathan Lee Sherman, Michelle E. Kanter Cohen, Fair Elections Legal Network, Washington, DC, for Plaintiffs.

Amit Agarwal, Jordan E. Pratt, Office of the Attorney General, Jonathan Alan Glogau, Florida Attorney General Office, Lance Eric Neff, Attorney General, Ashley E. Davis, William Jordan Jones, Florida Department of State, David Andrew Fugett, Florida Department of State, Office of General Counsel, Tallahassee, FL, Denise Harle, Alliance Defending Freedom, Lawrenceville, GA, for Defendants.

ORDER ON CROSS–MOTIONS FOR SUMMARY JUDGMENT

Mark E. Walker, United States District JudgeFlorida strips the right to vote from every man and woman who commits a felony. To vote again, disenfranchised citizens must kowtow before a panel of high-level government officials over which Florida's Governor has absolute veto authority. No standards guide the panel. Its members alone must be satisfied that these citizens deserve restoration. Until that moment (if it ever comes), these citizens cannot legally vote for presidents, governors, senators, representatives, mayors, or school-board members. These citizens are subject to the consequences of bills, actions, programs, and policies that their elected leaders enact and enforce. But these citizens cannot ever legally vote unless Florida's Governor approves restoration of this fundamental right.

Florida's Executive Clemency Board has, by rule, unfettered discretion in restoring voting rights. "We can do whatever we want," the Governor said at one clemency hearing. ECF No. 29, at ¶ 55 n.26. One need not search long to find alarming illustrations of this scheme in action. In 2010, a white man, Steven Warner, cast an illegal ballot. Three years later, he sought the restoration of his voting rights. He went before the state's Executive Clemency Board, where Governor Scott asked him about his illegal voting.

"Actually, I voted for you," he said. The Governor laughed. "I probably shouldn't respond to that." A few seconds passed. The Governor then granted the former felon his voting rights. ECF No. 101–159; ECF No. 29, at ¶ 65.

This is a facial challenge to Florida's re-enfranchisement scheme.¹ Plaintiffs and Defendants both move for summary judgment on cross motions.²

This Court has considered, without hearing, the parties' motions for summary judgment, their replies, and the record before it. 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. The question now is whether such a system passes constitutional muster. It does not.

I

Florida automatically disenfranchises any individual who has been convicted of a felony. FLA. CONST. art. VI, § 4 (a); FLA. STAT. ANN. § 97.041(2)(b). But the Florida Constitution authorizes the Governor, with the approval of at least two other Board members, to restore civil rights. FLA. CONST. art. IV § 8 (a); FLA. STAT. ANN. § 944.292(1). The Office of Executive Clemency "was created to assist in the orderly and expeditious exercise of this executive power." Fla. R. Exec. Clemency 2(B).

The Board is guided by the Rules of Executive Clemency ("Rules"). The Rules are not "intended to limit the authority or discretion" of the Board. Fla. R. Exec. Clemency 2(A). The Governor alone "has the unfettered discretion to deny clemency at any time, for any reason." Fla. R. Exec. Clemency 4. The Governor and two Board members have "the unfettered discretion to grant, at any time, for any reason" several types of clemency, including the restoration of voting rights. Id.

The Rules outline the procedures former felons must undertake to have their voting rights restored. ECF No. 103, Ex. J, at 20. Former felons must wait either five or seven years from the completion of their sentence—including probation, parole, and fines—to apply for restoration, depending on the severity of the crime. See Fla. R. Exec. Clemency 9(A)(4) (listing crimes ineligible for a five-year pre-application waiting period).

The Florida Commission on Offender Review ("FCOR") reviews all applications and provides a non-binding recommendation to the Board. FCOR "operates as the administrative and investigative arm of the Board." FCOR Annual Rep. 2016–17, at 5 ("Annual Rep."). It investigates all applicants who require a hearing before the Board. In doing so, it considers various factors, such as criminal and traffic records, the applicant's payment of fines, alcohol and substance use, voter registration information, and any input from the judiciary, state attorneys, and victims. Id. at 15. After its investigation, FCOR creates a report called the Confidential Case Analysis ("CCA"). ECF No. 103, at 7. The Board can consider information in the CCA. Id. ; see also Annual Rep., at 15 (describing "the Commission's advisory recommendation ... to the Board").

The Board generally meets four times a year. Fla. R. Exec. Clemency 12(A). Applicants are not required to attend their hearings, but the Rules "encourage" applicants to attend. Fla. R. Exec. Clemency 12(B). If applicants attend, they may speak for no more than five minutes. Fla. R. Exec. Clemency 12(C). Others may speak in the applicant's favor, but the applicant's whole presentation cannot exceed ten minutes. Id.

In making its decisions, the Board can examine—but does not have to—assorted factors. These factors include drug and alcohol use, traffic violations, whether the applicant has voted despite legally being disenfranchised, employment status, family, and the Board's perceptions on the applicant's attitude, level of remorse, and whether she has turned her life around. ECF No. 103, at 8 (citations omitted). If an applicant is denied restoration, she cannot reapply for at least two years. Fla. R. Exec. Clemency 14.

II

A

An individual's status as a former felon does not deprive her of a vote-restoration process free from the First Amendment's protections. Defendants' assert that once a felon loses the right to vote, she loses all interests associated with that right, including those under the First Amendment, until her voting rights are restored. ECF No. 103, at 30–32; ECF No. 137, at 24–25; ECF No. 141, at 18–19. This Court finds Defendants' reasoning to be nonsensical.

It is well-settled that a state can disenfranchise convicted felons under Section Two of the Fourteenth Amendment. Richardson v. Ramirez , 418 U.S. 24, 56, 94 S.Ct. 2655, 41 L.Ed.2d 551 (1974). "Florida's discretion to deny the vote to convicted felons is fixed by the text of § 2 of the Fourteenth Amendment." Johnson v. Bush , 405 F.3d 1214, 1228 (11th Cir. 2005) (en banc).

But it is also well-settled that a state cannot disenfranchise a convicted felon if motivated by racial animus. Hunter v. Underwood , 471 U.S. 222, 233, 105 S.Ct. 1916, 85 L.Ed.2d 222 (1985). "We are confident," the Supreme Court stated, "that § 2 was not designed to permit the purposeful racial discrimination ... which otherwise violates § 1 of the Fourteenth Amendment." Id. Nor may a state disenfranchise a convicted felon for any arbitrary reason. Shepherd v. Trevino , 575 F.2d 1110, 1114 (5th Cir. 1978) ("Nor can we believe that section 2 would permit a state to make a completely arbitrary distinction between groups of felons with respect to the right to vote.").³ State laws and regulations cannot, for example, "disenfranchise similarly situated blue-eyed felons but not brown-eyed felons." Owens v. Barnes , 711 F.2d 25, 27 (3d Cir. 1983).

If a state cannot disenfranchise for arbitrary reasons, a state cannot disenfranchise convicted felons in a manner repugnant to the First Amendment. A state cannot yank the right to vote from a Republican felon but retain voting rights for Democratic felons. Imagine a state bold enough to set in place a process—perhaps concurrent with criminal sentencing—where a panel of elected officials, empowered with boundless discretion but with a clear interest in shaping the electorate, decide that some felons can retain voting rights but others would be permanently barred from choosing their elected representatives. Such a scheme might be arbitrary.⁴ It might also violate the First Amendment. Neither would be constitutional.

A similar logic applies to restoration of voting rights.⁵ When a state institutes a process to restore voting rights to felons who have completed their sentences, that process cannot "permit ... purposeful racial discrimination." Hunter , 471 U.S. at 233, 105 S.Ct. 1916 ; see also Harvey , 605 F.3d at 1079 ("[A] state could not choose to re-enfranchise voters of only one particular race."). Restoration cannot be arbitrary. A state cannot "re-enfranchise only those felons who are more than six-feet tall," who are blue-eyed, who were born in August, who root for the Florida Gators, or who call heads during a coin flip. Id. Nor can it violate the First Amendment.

Defendants essentially argue that vote-restoration for former felons can only occur on the state's terms. ECF No. 103, at 30–31. Once a felon loses the right to vote, only the state may grant it back in a manner of its choosing. Id. A person convicted of a crime may have long ago exited the prison cell and completed probation. Her voting rights, however, remain locked in a dark crypt. Only the state has the key—but the state has swallowed it. Only when the state has digested and passed that key in the unforeseeable future—maybe in five years, maybe in 50—along with the possibility of some virus-laden stew of viewpoint discrimination and...