“Now that the day has come to set forth a rule-based, non-arbitrary system, they pretend to be caught off guard and unprepared after a year of litigation.”
TALLAHASSEE — Attorneys for felons trying to have their voting rights restored are accusing Gov. Rick Scott and the Florida Cabinet of “foot-dragging” by trying to block a federal judge’s order that gave the state until April 26 to revamp its controversial rights-restoration process.
A response filed Thursday by the plaintiffs’ lawyers in the Atlanta-based 11th U.S. Circuit Court of Appeals is the latest salvo in the case, filed last year on behalf of nine Florida felons.
In a series of harshly worded rulings, U.S. District Judge Mark Walker found the state’s vote-restoration process violated First Amendment rights and equal-protection rights of felons. He gave Scott, Attorney General Pam Bondi and the other members of the Florida Cabinet, who serve as the state’s Board of Executive Clemency, until April 26 to overhaul the process. Walker last week also rejected a request by Bondi to put his order on hold.
“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.”
Arguing in part that Walker “relied on unsubstantiated insinuations of actual discrimination,” Bondi on April 6 asked the federal appellate court to put a stay on the district judge’s order.
But in the response filed with the appeals court Thursday, lawyers for the plaintiffs chided state officials for complaining that Walker hadn’t given them enough time to craft a new process.
“Now that the day has come to set forth a rule-based, non-arbitrary system, they pretend to be caught off guard and unprepared after a year of litigation and after more than two months have elapsed” since a Feb. 1 order by Walker that found the current process unconstitutional and instructed both sides to come up with an alternate system, the lawyers wrote.
The clemency board could immediately impose new rules that meet Walker’s requirements while continuing to appeal his decision, wrote lawyers from the Fair Elections Legal Network and the Cohen Milstein Sellers & Toll PLLC firm, who filed the lawsuit last year on behalf of the plaintiffs.
“Instead, they chose to delay even after the district court found the current system unconstitutional on February 1, and now seek to benefit from their own foot-dragging,” the lawyers wrote.
In seeking a stay, Bondi’s lawyers said 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,” they wrote.
The lawyers for the state also sought to demonstrate that the state’s vote-restoration process does not violate constitutional rights.
The process comports with the Equal Protection Clause if it “bears a rational relationship to the achieving of a legitimate state interest,” the state lawyers wrote, reiterating an argument rejected by Walker. The state has a legitimate interest in limiting the voting franchise to “responsible voters,” they added.
“The state’s totality-of-the-circumstances approach is rationally calculated to effectuate that interest, because it permits board members to ‘gauge the progress and rehabilitation of a convicted felon’ based on the full range of information concerning the ‘individual defendant and his case,’ “ they wrote.
But lawyers for the felons said the state shouldn’t be trusted.
“Appellants’ only goal appears to be to fight for a ruling sanctioning unfettered discretion in voting rights restoration,” they wrote.
The state threatened to do away with restoring voting rights altogether but has since backed down, the plaintiffs’ lawyers argued.
“In light of the harms inherent in such a system, and because appellants could adopt an interim scheme now, they have no cognizable injury that would merit a stay,” they wrote.
But the state argued that the clemency board hasn’t shown it will ignore Walker’s order.
Walker “did not find or suggest that defendants are likely to disregard its rulings and set up a new vote-restoration system incompatible with the requirements of its order,” Bondi’s lawyers wrote.
“Accordingly, the ‘drastic and extraordinary remedy’ of an injunction is not required,” they wrote.
Restoration of voting rights has long been a controversial legal and political issue in Florida. 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.
A political committee known as Floridians for a Fair Democracy has collected enough petition signatures to place a measure on the November general-election ballot that, if approved by voters, would automatically restore voting rights to felons who have served their sentences, completed parole or probation and paid restitution. Murderers and sex offenders would be excluded under the measure, which will appear on the ballot as Amendment 4.