TALLAHASSEE — Now that a judge has struck down Florida's archaic system of restoring the right to vote to convicted felons, the real legal battle begins with a big unanswered question.
What's the solution?
In a landmark decision, U.S. District Judge Mark Walker ruled Thursday that Florida's Jim Crow-era vote restoration system violates the United States Constitution.
Florida is one of three states, along with Iowa and Kentucky, that permanently strips convicted felons of their civil rights, including the right to vote, unless they are restored by official state action. About six million felons across the country cannot vote, and a fourth of them, or about 1.5 million, are in Florida.
About one of five African-Americans of voting age in Florida cannot vote.
Walker did not invalidate the lifetime ban on voting by felons that requires them to wait at least five years after leaving prison to apply for restoration of rights, though he suggested in his order that Florida's system might be "particularly punitive."
Rather, he struck down a century-old system that forces felons to seek the favor of the governor and the three Cabinet members to regain the right to vote as arbitrary and discriminatory.
The four officials meet four times a year as a clemency board to consider hundreds of cases.
By giving "unfettered discretion" to Gov. Rick Scott, who has more power to grant or deny the right to vote than any Cabinet member, Florida arbitrarily chooses who gets to vote and who doesn't, and that's illegal, the judge ruled.
"Florida's vote-restoration scheme is crushingly restrictive," Walker wrote. "The scheme crumbles under strict scrutiny because it risks — if not covertly authorizes the practice of — arbitrary and discriminatory vote restoration."
The judge gave both sides 10 days to submit proposed remedies. Their deadline is Monday, Feb. 12. Time is of the essence, Walker wrote, because "unique circumstances are at play in this challenge."
"The case isn't over yet," said Washington, D.C. attorney Jon Sherman, senior counsel for the Fair Elections Legal Network that celebrated the Walker decision. "We need to brief the court on the remedy question."
Sherman declined to discuss what recommendations he will make to the judge. "You won't have to wait long," he said.
After briefs are filed, Walker will issue a permanent order, which likely will be challenged in the 11th Circuit Court of Appeals in Atlanta.
Scott's office defended the existing system, and his office has provided no indication of how to change the vote restoration system.
In a statement, spokesman John Tupps said: "The discretion of the clemency board over the restoration of felons' rights in Florida has been in place for decades and overseen by multiple governors. The process is outlined in Florida's Constitution and (the) ruling departs from precedent set by the U.S. Supreme Court. The governor believes that convicted felons should show that they can lead a life free of crime and be accountable to their victims and our communities."
Judge Walker acknowledged that by striking down the existing restoration system, he's blocking eligible convicted felons from seeking to regain their voting rights from Scott and the three Cabinet members, who alone decide whether ex-felons become full-fledged citizens or not.
Their next scheduled meeting is Thursday, March 8. It's not clear whether those cases will be heard or not.
The three Cabinet members with the power to change the rules are all Republicans.
They are Attorney General Pam Bondi, who's term-limited and will leave office in November; Chief Financial Officer Jimmy Patronis, who was appointed by Scott last year and is running for a four-year term; and Agriculture Commissioner Adam Putnam, a candidate for governor.
Putnam is on record as opposing the immediate restoration of voting rights to violent felons.
"Non-violent offenders ought to have an easier path to restoration of rights. Violent criminals do not deserve the same," Putnam said.
The attorney defending the state's position is Solicitor General Amit Agarwal, who reports to Bondi.
"It would not be appropriate to discuss our legal strategy at this time," said Bondi's spokesman, Whitney Ray.
Florida's restrictions on vote restoration eased during the four years Charlie Crist was governor, from 2007 to 2011. About 155,000 felons regained their right to vote compared to fewer than 3,000 in Scott's seven-plus years in office.
"The numbers have been so low that it is arbitrary, according to the court," said Mark Schlakman, senior program director at Florida State University's Center for the Advancement of Human Rights.
Walker's precedent-setting ruling is seen as giving valuable momentum to a statewide referendum in November that would restore the right to vote to all convicted felons in Florida except murderers and sex offenders.
"It probably provides impetus for the restoration movement," said Darryl Paulson, professor emeritus of government at the University of South Florida St. Petersburg and a critic of the system. "If a judge is saying that this is not fair and unconstitutional and flawed, then maybe we need to change it."
Scott is strongly considering running for the U.S. Senate seat held by Democrat Bill Nelson since 2001.
Paulson said Scott would be taking a big political risk if he tries to defend a system that Walker has ruled unconstitutional.
"If Scott becomes defensive in terms of upholding the system as is, I don't think that is going to be a winnable argument for him," Paulson said.
Paulson cited a study by the Florida Commission on Offender Review that showed that ex-offenders whose voting rights were restored were less likely to commit new crimes than those who could not vote.
The professor said Walker's decision was a long time in coming.
"It's not a source of pride that we lead the nation in excluding more people from voting than any other state — and we make it tougher than any other state to have restoration," Paulson said.
Times/Herald staff writer Elizabeth Koh contributed to this report.
Contact Steve Bousquet at [email protected] and follow @stevebousquet.