U.S. District Court Judge Mark Walker issued a permanent injunction today that requires Florida’s Executive Clemency Board to establish a new voting rights restoration process for former felons by April 26. While the Court did not order the automatic restoration of voting rights for any former felons, he instructed the Clemency Board to establish “specific and neutral criteria to direct vote-restoration decisions,” and “meaningful, specific, and expeditious time constraints” for the voting rights restoration process. The opinion suggested under any new system no one should have to wait more than an election cycle for a decision on their application. The Court stated this relief “is appropriate to ensure that Florida’s vote-restoration scheme is no longer based on unfettered discretion.” Fair Elections Legal Network and the law firm Cohen Milstein Sellers & Toll PLLC, counsel for the plaintiffs in Hand v. Scott, filed the lawsuit in March 2017. In February 2018, Judge Walker ruled Florida’s arbitrary voting rights restoration process for persons with felony convictions violates the 1st and 14th Amendments to the United States Constitution. Florida is still permitted to deny the right to vote to persons with felony convictions, and felons still cannot register or vote until that right is restored.
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. Nor does it write the rules and regulations for the Executive Clemency Board. Instead, this Court possesses the well-known and unsurprising “province and duty . . . to say what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). And this Court possesses the unremarkable discretion to find a means for the Board to comply with the law. In its Order on Cross-Motions for Summary Judgment, this Court applied longstanding precedent from the Supreme Court and the Eleventh Circuit that invalidated unfettered-discretion schemes to a novel context; namely, that of felon re-enfranchisement. See generally ECF No. 144. And, as it has done in the past, this Court invited the parties to recommend appropriate remedial action. Defendants essentially repackage the current scheme into proposed remedies permitting the Governor and Board to do, as the Governor described, “whatever we want” in denying voting rights to hundreds of thousands of their constituents. ECF No. 144, at 2 (citation omitted). This will not do. And Defendants’ proposed remedy to abandon the whole vote-restoration scheme does not pass constitutional muster. If binding precedent spanning decades is to guide this Court—as it must—then an injunction must ensue to prevent further infringement. Florida’s vote-restoration scheme can no longer violate Plaintiffs’ fundamental First Amendment rights. Accordingly, as even Defendants acknowledge, “this Court may direct the Board ‘to find a means of bringing the [State’s] scheme into compliance with federal law.’” ECF No. 149, at 14 (quoting Strahan v. Coxe, 127 F.3d 155, 170 (1st Cir. 1997)).