Gov. Rick Scott and the Florida Cabinet told a federal judge Monday that the four Republican officials should decide themselves how to change a vote-restoration system for convicted felons that the judge ruled unconstitutional.
But a national voting rights advocacy group that persuaded the judge to strike down the current system earlier this month wants the judge to restore the right to vote for all felons after they complete any "waiting period of a specified duration of time."
It expressed little confidence that the Cabinet and Scott, acting as the executive clemency board, would revise the system in a way that would hold up constitutionally.
"The executive clemency board has had the power to change the administrative rules of executive clemency since we filed this case," said Jon Sherman, the group's senior counsel. "So far it has not."
Fair Elections said it accepts whatever waiting period exists in state law.
At present, all felons must wait at least five years after completing their sentences before they can apply for a restoration of rights. Murderers and sex offenders must wait seven years.
In their legal brief filed with U.S. District Judge Mark Walker, state leaders said it would be "inappropriate" for a court to order them to create any new vote restoration system.
"This court should not issue an injunction prohibiting the state from exercising its right to choose a particular course, so long as its course is compatible with the requirements of federal law," the state argued in a brief filed by Attorney General Pam Bondi's solicitor general, Amit Agarwal.
"An injunction requiring (the state) to affirmatively act to create a new vote-restoration procedure would be inappropriate," the state also argued.
Rather, the state asserted, Scott and the Cabinet could consider a number of options, including a uniform policy of declining to restore any felon's right to vote; amending its rules to permanently revoke voting rights of certain felons; providing for discretion or non-discretion in all cases or continuing the current system with its mandatory waiting periods.
The state's brief noted that Walker, in his Feb. 1 order, acknowledged that states have the power to pass laws that disenfranchise convicted felons by permanently stripping their right to vote.
Scott's office noted Monday that Walker had denied a request by Fair Elections Legal Network to automatically restore the voting rights of convicted felons.
But Walker's Feb. 1 ruling firmly rebuked the current restoration system used by Scott and the Cabinet, calling it "nonsensical" and unconstitutional for giving "unfettered discretion" to four partisan politicians.
As the legal skirmishes go on, supporters are mobilizing to win passage of a ballot initiative to automatically restore the right to vote to most felons in Florida, not including murderers and sex offenders.
Known as Amendment 4, it would require passage by 60 percent of participating voters to change the Constitution.
Florida is one of four states, along with Iowa, Kentucky and Virginia, that impose a lifetime ban on voting for convicted felons.
Those rights can be restored only after a five-year waiting period followed by the felon's successful petition to Scott and Cabinet members, who meet four times annually to decide each case.
Voting rights advocates say about 6 million Americans with felony convictions have been permanently barred from voting, and about 1.5 million of them are from Florida — far more than any other state.
Walker is expected to issue an order in the case, and Scott has indicated that the state will appeal it to a federal appeals court in Atlanta.
"I've been clear," Scott said in Tampa several days ago. "If you're a felon, I believe you should take the time so we can see that you have re-integrated and done the right thing to society before you get your rights back."
On Monday, Scott's chief spokesman John Tupps said, "Officials elected by Floridians, not judges, have the authority" to decide the clemency process.
Led by Scott and Bondi, the state in 2011 scrapped a policy under which most felons could regain their voting rights without a formal hearing, a process that takes years.
Instead, Scott, Bondi, Agriculture Commissioner Adam Putnam and former Chief Financial Officer Jeff Atwater approved a policy under which most felons had to wait for five years after completing their sentences before applying for clemency. That can take a decade or more.
The Fair Elections Legal Network and other advocacy groups challenged the constitutionality of Florida's vote restoration system, and on Feb. 1 Judge Walker granted a motion of summary judgment that said the Florida system, by giving "unfettered discretion" to four elected officials, is unconstitutional.
The next scheduled meeting of the clemency board of Thursday, March 8.