Court Battle Over Felons' Rights Could End

Dec 20, 2018

Though debate continues to swirl about carrying out a newly approved constitutional amendment, a fierce legal battle about how Gov. Rick Scott and Florida Cabinet members have handled restoration of felons’ rights could be close to ending.

Attorneys for the state and a group of plaintiffs say the Nov. 6 passage of what was known as Amendment 4 likely makes moot a long-running federal lawsuit about whether Scott and the Cabinet have violated felons’ rights. Amendment 4 requires the state to restore the voting rights of felons who have fulfilled terms of their sentences, though it excludes people convicted of murder and sex offenses.

A U.S. district judge this spring ruled that a process used by Scott and the Cabinet violated the federal Constitution, prompting the state to appeal to the 11th U.S. Circuit Court of Appeals. The Atlanta-based appeals court heard arguments in July but has not ruled --- and last month asked attorneys to weigh in on whether Amendment 4 made the dispute moot.

Attorneys for the plaintiffs filed a 12-page brief Wednesday saying the constitutional amendment made moot the key issues in the case, including whether the restoration process has violated the rights of felons because it is arbitrary.

“Because all plaintiffs are now subject to a non-discretionary rule as to their voting rights restoration, there is no longer any live controversy as to claims … attacking the arbitrariness of Florida’s soon-to-be-former restoration scheme,” the brief said. “Other federal constitutional issues may later develop depending on how the courts interpret Amendment 4 and how Florida officials implement it, but those are not raised by the claims in this appeal.”

In a Dec. 6 brief, Attorney General Pam Bondi’s office came to a similar conclusion --- though it included a caveat that two plaintiffs in the case might not be eligible for automatic restoration of their rights under the constitutional amendment because they have not paid court costs and fees related to their convictions. If those two plaintiffs are not eligible for automatic restoration, the case might not be moot as it relates to them.

“But if the plaintiffs advise this court of facts making clear that each of them will be eligible for restoration under the amendment (and so long as no plaintiff is before then convicted of a new disqualifying offense), this case likely will become moot when the amendment takes effect,” the brief by Bondi’s office said.

The lawsuit was initially filed in March 2017 and came after years of political and legal debates about restoration of felons’ rights. The case centered on a process that Scott and the Cabinet put in place in 2011, making it harder for felons to get rights restored. Under the process, the state has required felons to wait five or seven years to apply for rights restoration --- and years after that to complete the process.

U.S. District Judge Mark Walker this spring found the process was arbitrary and unconstitutional, leading the state to go to the appeals court.

The legal battle came as Amendment 4 backers campaigned to build public support for changing the process. The automatic-restoration proposal received support from 64.55 percent of the voters in the Nov. 6 election, easily topping the 60 percent needed for passage.

The constitutional amendment will take effect Jan. 8, but a new debate has emerged about whether that means felons will be immediately eligible for automatic restoration of rights. Gov.-elect Ron DeSantis fueled the debate last week when he told The Palm Beach Post that he thinks lawmakers will have to pass “implementing language” before the constitutional amendment can be carried out.

The Legislature does not meet until March, and it is unclear how long it could take to agree on a measure providing details about how the amendment should be implemented.

“They’re going to be able to do that in March,” DeSantis told the Post, referring to the 60-day legislative session, which begins March 5. “There’s no way you can go through this session without implementing it.”

But DeSantis’ statement spurred outrage from many Amendment 4 supporters, who said automatic restoration should begin on Jan. 8. The brief filed Wednesday in the federal appeals court also alluded to the issue, describing the amendment as “self-executing.”

“As long as Amendment 4 is implemented appropriately as self-executing and individuals who have completed their full sentences are immediately able to register to vote without delay, restoration will be instantaneous for those who meet Amendment 4’s requirements for the termination of their disenfranchisement,” the brief said. “Under Amendment 4’s express terms, restoration will happen immediately and without any need to await some action by state or local government officials.”