The Real Cost of Prisons Weblog

In September 2000, amid the Bush-Gore presidential election campaign, Thomas Johnson and six other ex-felons sued Gov. Jeb Bush and his Cabinet in U.S. District Court in Miami, claiming the anti-felon law was a form of discrimination. They argued that it violated the Equal Protection Clause of the 14th Amendment and the federal Voting Rights Act. The defendants are all members of Florida's Clemency Board.

The plaintiffs, represented by attorneys from the Brennan Center for Justice at New York University's law school, filed the class action on behalf of an estimated 600,000 Florida felons who have completed their prison sentences but cannot vote. Under the law, felons can't "vote or hold office" until they convince the Clemency Board to restore their civil rights. Felons must petition for that status. There is no automatic review.

The issue has been especially controversial in Florida, where the purging of felons from voter rolls in 2000 and 2004 was widely seen as flawed, resulting in the mistaken exclusion of nonfelon voters. In addition, Gov. Bush and legislative Republican leaders have resisted growing calls for easing the restoration of voting and other civil rights to felons after they complete their sentences.

There also is a major partisan factor involved in the issue. A disproportionate percentage of felons in Florida are African-Americans, and blacks vote heavily Democratic. In a state where 7.6 million Floridians cast ballots in last year's presidential election, the possible inclusion of 600,000 felon voters could swing close races. But the appeals court, in an opinion noting that about 70 percent of the plaintiff class is white, tossed the case out of court in a 79-page ruling.

Eleven judges rejected the first prong of the plaintiffs' attack -- that Florida's current felon disenfranchisement law was motivated by intentional discrimination. Ten judges also rejected the plaintiffs' argument that Section 2 of the Voting Rights Act extended to considering claims of racial discrimination regarding the disenfranchisement of felons. There were two dissenters. Judge Rosemary Barkett dissented from both findings. Judge Charles R. Wilson agreed with the majority that there was no evidence of intentional discrimination, but he disagreed with its conclusion that claims of racial discrimination in felon disenfranchisement laws "are not cognizable" under the act.

Judge Stanley Marcus, a former U.S. Attorney in Miami, recused himself and did not participate in the decision. In Tallahassee, Gov. Bush's office hailed the decision.

"The governor feels that it was a very decisive ruling," said Bush spokesman Russell Schweiss. "The court ruled that Florida's process is a fair and good one, giving felons the ability to have their rights restored through a thoughtful and fair review."

Critics of the Florida law vowed to fight on to win voting rights for felons. "This is a terribly unjust law that needs to be fixed," said Jessie Allen, lead attorney for the plaintiffs and associate counsel at the Brennan Center. "The law's undemocratic consequences are creating a civil rights crisis in the state of Florida."

Legal and political battles have raged for years across the country over felon disenfranchisement. According to the Sentencing Project, a Washington, D.C.-based nonprofit group, most states have laws disenfranchising convicted felons and ex-felons. But only Florida, Alabama, Iowa, Kentucky and Virginia disenfranchise all felons and provide no automatic process for restoration of civil rights.

While the 11th Circuit majority said it had little doubt that racial bigotry motivated some provisions of Florida's Reconstruction-era constitution, the majority found that such discrimination does not "establish that racial animus motivated the criminal disenfranchisement provision, particularly given Florida's long-standing tradition of criminal disenfranchisement." Besides, the court said, the law was re-enacted in 1968 during a general revision of the state's constitution.

Similarly, the judges ruled that the plaintiffs failed to provide any "contemporaneous evidence" from 1868 to prove discrimination. The plaintiffs' reference to racist remarks made by a white delegate to the 1868 Constitutional Convention about keeping blacks from taking over the state were rejected by the full court as unconvincing. Those remarks helped convince a three-judge panel of the 11th Circuit not to dismiss the suit in December 2003.

The plaintiffs' claim that Florida's law violates the Voting Rights Act also was found wanting by the full court Tuesday. The legislative history of the act shows that "Congress never intended" it to reach state laws regarding felon disenfranchisement, the opinion says.

Loyola University of Los Angeles law professor Richard L. Hasen, who specializes in election law, said the 11th Circuit's ruling once again raises the question of whether the Voting Rights Act reaches felon discrimination claims when it can be shown that such laws have a greater impact on minorities.

Hasen said the U.S. Supreme Court declined last fall to hear cases involving a split of opinion between the 2nd Circuit -- which held that New York's felon disenfranchisement law did not violate the act -- and the 9th Circuit in San Francisco, which held that a trial should be held to determine whether a similar law in Washington state did violate the act. The Loyola law professor noted that the plaintiffs in the Florida case filed a friend-of-the-court brief to the Supreme Court at that time. "The plaintiffs in the Florida suit told the Supreme Court, 'Wait, don't take those cases. We've got a case with a better factual record,' " Hasen said. "I think the stars are lined up now for a likely Supreme Court review."

©2005 Law.com
Page printed from: http://www.law.com