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Supreme Court Says Clemency Fight 'Moot' After Amendment 4

As a legal battle continues over a constitutional amendment that restored voting rights to felons in Florida, a federal appellate court Friday ended a separate, bitterly fought challenge to the state’s clemency process.

A three-judge panel of the 11th U.S. Circuit Court of Appeals decided the lawsuit, filed in 2017 on behalf of James Hand and eight other convicted felons, was moot because Florida voters in November 2018 approved the constitutional amendment that restores voting rights to felons who have completed terms of their sentences.

Friday’s order followed a series of rulings in early 2018 by U.S. District Judge Mark Walker that the state’s vote-restoration process violated First Amendment rights and Fourteenth Amendment equal-protection rights of felons. At one point, Walker ordered then-Gov. Rick Scott and the Board of Executive Clemency, comprised of the Florida Cabinet, to revamp what the judge called a “fatally flawed” process.

But in April 2018, the appellate court struck a crushing blow to voting-rights advocates by granting the state’s request to put Walker’s decision on hold. A 2-1 decision by a panel for the Atlanta-based court also indicated Walker’s invalidation of Florida’s restoration process likely would not stand.

The legal battling came as voting-rights proponents intensified a campaign for what appeared on the November 2018 ballot as “Amendment 4,” which ultimately received the support of more than 71 percent of Florida voters.

On Friday, the appeals court said the passage of the amendment rendered the earlier case, known as Hand v. Scott, moot.

“In light of the changes to Florida’s voter re-enfranchisement system since this case began, we no longer have the ability to accord Hand meaningful relief from the former system which he challenged,” Judge Elizabeth Branch wrote in a five-page opinion joined by Chief Judge Ed Carnes and Judge Darrin Gayles.

In briefs filed with the court after Amendment 4 was passed, “both sides concede that each individual plaintiff is eligible to seek re-enfranchisement under Florida’s new system,” Branch noted.

“We therefore hold that this case is moot,” the three-judge panel decided.

After taking office in 2011, Scott and former Attorney General Pam Bondi played key roles in changing the rights-restoration process to effectively make it harder for felons to be able to vote again.

Under the clemency process, felons must wait five or seven years after their sentences are complete to apply to have rights restored. After applications are filed, the process can take years to complete.

After the changes went into effect in 2011, Scott and the clemency board restored the rights of about 3,000 of the 30,000 convicted felons who applied, in sharp contrast to the 155,000 felons who had their rights to vote restored during the four years of former Gov. Charlie Crist’s tenure, according to court documents.

The labyrinthine process, backlog of cases and years-long wait for clemency hearings prompted the federal lawsuit as well as the effort behind Amendment 4.

Florida, with about 1.6 million felons, had been considered an outlier as more than three-dozen states automatically restore the right to vote for most felons who have completed their sentences.

The amendment approved by voters in 2018 granted voting-rights restoration to felons “who have completed all terms of their sentence, including parole or probation,” excluding people “convicted of murder or a felony sexual offense.”

But restoration of felons’ voting rights is again mired in controversy following the Legislature’s passage of a law last year aimed at carrying out Amendment 4.

The law requires felons to pay “legal financial obligations,” such as restitution, fines and fees, to be eligible to have voting rights restored.

Voting-rights groups and civil-rights advocates challenged the statute in federal court, alleging that linking finances and voting rights amounts to an unconstitutional “poll tax.” The plaintiffs also contend that the state is unable to uniformly or consistently apply the law, in part due to record-keeping problems and because DeSantis’ administration has provided “no guidance” on how to carry it out.

U.S. District Judge Robert Hinkle in October ruled that Florida cannot deny the right to vote to felons who have served their sentences but are “genuinely unable” to pay legal financial obligations.

DeSantis and his administration appealed the ruling and asked Hinkle to put his preliminary injunction on hold while the 11th U.S. Circuit Court of Appeals considers the case.

But last month, Hinkle refused to block part of his decision that allows county elections supervisors to continue registering felons who assert they are unable to pay outstanding fees and fines.

The federal judge, however, blocked the ability of felons who are unable to pay legal financial obligations to vote, at least for now.

The restoration of felons’ rights has long been a controversial legal and political issue in Florida, with critics of the state's process comparing it to post-Civil War Jim Crow policies designed to keep blacks from casting ballots.

Florida agriculture Commissioner Nikki Fried, the state's lone statewide-elected Democrat, pointed to Friday's court decision to support her demand that DeSantis and the clemency board --- comprised of Cabinet members Fried, Attorney General Ashley Moody and Chief Financial Officer Jimmy Patronis --- revamp the rights-restoration process.

“Now that the court has ruled, it’s all the more important that Gov. DeSantis and my clemency board colleagues heed my call for new clemency rules that restore the rights of Floridians," Fried said in a prepared statement. "We’ve been in office for a year, and the rules could have been changed in the first week. Floridians who have paid their debt to society should not have to wait a day longer."