The disappointing ruling Wednesday by a federal appeals court should erase any doubt that the decision on restoring voting rights for felons rests solely on the conscience of Florida voters. A tortured ruling by the minimum majority of a three-judge panel may have spared Gov. Rick Scott the immediate embarrassment of being forced to rewrite the state's draconian clemency rules in the middle of his U.S. Senate campaign. But the case has yet to be decided on its merits, and Scott's clemency rules and response to the federal courts only underscore Florida's status as a national outlier. Now it falls to Florida voters to take the opportunity in November to enable those who have served their time to participate again in the democratic system.
A panel of the U.S. Circuit Court of Appeals in Atlanta issued a stay late Wednesday of a March order by U.S. District Judge Mark Walker, who found that Florida's system for restoring voting rights to felons was "fatally flawed" and "unconstitutionally arbitrary." Scott changed the rules of the clemency process upon taking office in 2011, forcing felons to wait at least five years after completing their sentences to even apply to have their rights restored. Florida is one of only four states that enshrines this indignity from the Jim Crow era in its constitution. And it's worse than that: Florida all by itself accounts for about a quarter of all Americans convicted of felony offenses who completed their sentences but are still barred from voting,
Walker, in a landmark ruling, declared that the process was unconstitutional because it gave "unfettered discretion" to the governor, who has the power to grant or deny voting rights for any reason. He ordered the state to come up with a better system by Thursday. But the appeals court, ruling only hours before the deadline, found the governor had "broad discretion to grant and deny clemency, even when the applicable regime lacks any standards." In issuing a stay, the majority predicted the state would "likely succeed" on appeal, and while acknowledging that felons "surely have an interest in regaining their voting rights sooner rather than later," it also said the state had an interest in "avoiding chaos" in the run-up to an election. The panel ordered an expedited schedule for oral arguments.
U.S. Circuit Judge Beverly Martin, in a partial dissent, dismissed the state's prospects at winning on appeal as "at most, a mere possibility" and she found the lower court's finding of a right to vote vested in the First Amendment as being "on solid legal footing." More to the point, she declared it was "no answer" to "presume that the (state) will exercise its discretion in good faith." That single sentence speaks to Scott's entire legacy on felon rights. Even if the higher courts ultimately uphold the lower court ruling, and order the state to create a new, viable path for restoring voting rights, this governor cannot be entrusted to do the right thing — because he never has.
The opportunity voters have in November has become a civic responsibility. Floridians will face a constitutional amendment that would automatically restore voting rights for felons, except those convicted of murder and sex crimes, when their sentences are completed. The move would bring Florida into the national mainstream, and give 1.2 million residents a fresh chance to begin reintegrating as contributing members of society. Though the change is popular — opinion polls show most voters support it — this still will be a heavy lift, as the same politicians who have stood in the way are expected to demagogue the issue this campaign season. The governor is looking to the courts to prolong this indignity, but Floridians have a chance to end it, take control of their own civil rights and fashion a better way to lead fellow citizens into more productive lives.