News Service of Florida
ATLANTA — Yraida Guanipa, a Miami consultant, stood outside the federal appeals court in downtown Atlanta dressed in a bright orange scarf draped over a smart dark gray suit.
Guanipa has a master's degree and is working on a doctorate, achievements she's garnered since her release from prison in 2006.
Despite her academic successes and the creation of a business devoted to helping other families deal with the stain of incarceration, the shame and pain of the 11 years Guanipa served behind bars for drug-related charges persists.
That's because she can't vote.
Under a Florida process scrutinized Wednesday by a three-judge panel of the 11th U.S. Circuit Court of Appeals, Guanipa is one of hundreds of thousands of felons waiting to have their voting rights restored.
"This is another sentencing that is a timeless sentence," Guanipa, who was born in Venezuela, told The News Service of Florida. "Every time I talk to somebody about I cannot vote, it feels like I'm still incarcerated. It feels like I'm still doing part of the sentence."
Guanipa is among the plaintiffs in a lawsuit challenging the Florida Board of Executive Clemency's process for restoring the right to vote to felons like her who've completed their sentences and paid restitution. Gov. Rick Scott, aided by Attorney General Pam Bondi, initiated the revamped process shortly after taking office in 2011.
Lawyers for the plaintiffs are taking a novel approach to the case. They maintain that Florida's discretionary process violates the First Amendment, despite a dearth of cases anywhere in the country supporting that argument.
"This is a groundbreaking case. No court in the country before the district court in this case had ever ruled that the First Amendment prohibits arbitrary licensing of the right to vote to felons, the way Florida is engaged in its process right now," Jon Sherman, an attorney with the Fair Elections Center, which represents the plaintiffs, told reporters after Wednesday's hearing.
U.S. District Judge Mark Walker found that the state's arbitrary process violates the First Amendment and ordered the clemency board — made up of Scott and the state Cabinet — to come up with a set of "specific, neutral criteria" upon which to base their decisions.
But that victory was short-lived, when a separate three-judge panel of the 11th Circuit in April blocked a Walker order that would have required state officials to quickly overhaul Florida's process of restoring felons' rights.
That panel decided 2-1 that "binding precedent" gives the governor "broad discretion to grant and deny clemency, even when the applicable regime lacks any standards."
The April ruling, however, did not end the state's appeal of Walker's ruling that the current restoration process is unconstitutional, prompting Wednesday's hearing.
Florida Solicitor General Amit Agarwal told Wednesday's panel — comprised of Chief Judge Ed Carnes, Judge Elizabeth Branch and U.S. District Judge Darrin Gayles, who serves in Florida's Southern District and was assigned to the appeals court — the state's clemency process is not facially unconstitutional.
"No case, state or federal, published or unpublished … has ever held or even implied that clemency decisions or vote-restoration decisions in particular must be made pursuant to specific standards," Agarwal said.
Allowing Walker's decision to stick would have far-reaching "practical implications" ranging from state decisions about clemency to presidential pardons, Agarwal argued.
But Gayles seemed bothered that Florida's system puts it in a small class, joined only by Iowa and Kentucky.
"Would I be correct to say that at least 40 states restore rights automatically" for felons convicted of certain crimes, Gayles said, asking, "How many of the states employ no standards for this important decision?"
"We're not aware of any state that has clemency processes that are directed by neutral, non-discriminatory standards," Agarwal said.