February 02, 2018

A federal judge on Thursday struck down Florida's process for deciding whether to restore ex-felons' voting rights, saying it violates the First and Fourteenth Amendments because the governor's unfettered discretion creates serious risk of arbitrary decisions or “viewpoint discrimination,” whether along racial, religious or partisan lines.

The ruling by U.S. District Judge Mark Walker in the Northern District of Florida — issued on dueling motions for summary judgment as a pure question of law — does not strike down the state's felon disenfranchisement laws, which he said the Constitution allows states as an “affirmative sanction.” But a proposed state constitutional amendment that would repeal that statute qualified last week to appear before Florida voters on the November general election ballot.

“Former felons’ pathway back to full citizenship — one in which these members of Florida’s communities have a voice in the selection of their government — cannot be tainted by even the slightest stench of viewpoint discrimination,” Judge Walker wrote in his 43-page order. “A state may disenfranchise convicted felons. A particularly punitive state might even disenfranchise convicted felons permanently. But once a state provides for restoration, its process cannot offend the Constitution.”

Noting that he cannot issue an order simply telling the state to “act right,” Judge Walker ordered the sides to brief the court by Feb. 12 on proposed “contours of injunctive relief.” Such a tight deadline is called for because by striking down the re-enfranchisement policy, Thursday's order effectively has closed ex-felons' only path for voting restoration, he added.

The lawsuit was filed in March 2017 by nine former felons, with backing from the voting rights organization Fair Elections Legal Network and the law firm Cohen Milstein Sellers & Toll PLLC, on behalf of a proposed class of almost 1.5 million former felons, according to court records.

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