In Florida, the end of your incarceration can be the beginning of a life-long sentence. That’s because Florida is one of four states that does not automatically restore civil rights (most prominently, voting rights) to people who were convicted of felonies but have fulfilled every term of their sentence. In America’s third most populous state, where a felony can mean anything from murder to theft of property worth more than $299, the effects of this policy choice are far-reaching. The Brennan Center for Justice estimates that 1.6 million Floridians were barred from voting because of this policy in 2015. The most chilling figure is 150,000— the estimated number of disenfranchised Floridians from only five years prior.

This tenfold suspension of civil rights essentially happened overnight, neatly overlapping with the beginning of Florida Governor Rick Scott’s first term in 2011. This is no coincidence. Gov. Scott fully embraces an interpretation of Article IV of Florida’s 1968 Constitution that gives him unchecked authority to deny the restoration of any disenfranchised Floridian’s civil rights, which he does to the greatest extent possible. Restoring a Floridian’s rights requires the Governor’s consent along with that of two cabinet members, but the Governor can veto any Floridian’s civil rights restoration for any reason.

Gov. Scott pushed Florida’s loose constitutional boundaries past the limits tested in the previous two administrations. Gov. Charlie Crist’s automatic restoration reform was a rebuke to Gov. Jeb Bush’s refusal to restore the civil rights of around 600,000 people who served felony sentences— a high mark that Gov. Scott has surpassed nearly three times over. To do this within his constitutionally-limited two terms in office, Gov. Scott reversed the automatic restoration reforms and made major rule changes that added mandatory five to seven year-long waiting periods for appeals (with additional two-year waits for each denied appeal) to the Office of Executive Clemency (OEC).

The OEC’s board members are Gov. Scott, Attorney General Pam Bondi, Commissioner of Agriculture & Consumer Services Adam Putnam, and Chief Financial Officer Jimmy Patronis.  Gov. Scott and his cabinet members in the OEC mimic Florida’s constitution by categorizing civil rights restoration alongside clemency, characterizing their role as an “act of mercy that absolves the individual upon whom it is bestowed from all or any part of the punishment that the law imposes.” While taking the form of a considered executive response to the laws on the books, the only operative law here is entirely executive-made— with the only constitutional limitations taking effect after treason or conviction after impeachment. This “mercy” has only been extended to a fraction of a fraction (2,000) of Florida’s 1.6 million disenfranchised people, as Gov. Scott doesn’t seem keen to give up his un-checkable control of the state’s electorate.

U.S. District Judge Mark Walker may have recently dealt a fatal blow to the fundamentals of the OEC scheme in a decision, filed on February 1, 2018, that vilifies the board’s “we can do whatever we want” approach (a direct quote from Gov. Scott that the court cites from a clemency hearing). The court rejected Gov. Scott’s interpretation of executive discretion in civil rights restoration proceedings by re-asserting judicial review’s application to clemency schemes— uncovering flagrant First and Fourteenth violations in the process. The most common critiques centered around “potential viewpoint discrimination, bias, and arbitrary conduct,” and the court sees these potential invidious racial or political disparities as incompatible with the right to free association, freedom of expression, and equal protection (with the risk of discrimination overcoming the state’s ability to disenfranchise people convicted of felonies under the fourteenth amendment).

Judge Walker’s opinion would dismantle Gov. Scott’s scheme in a vacuum, but this likely marks the very beginning of this issue’s life in the courts. Nonetheless, this ruling means that Gov. Scott is entering his last year in office with a potent political tool hanging in the judicial balance while already under threat by voters in the form of a nationally-recognized ballot measure that would reinstate Gov. Crist’s civil rights restoration reforms. Neither the courts nor the voters are at the final stages of reverting Florida’s approach to clemency. But if the challenges facing the OEC right now are illustrative of what’s to come, Gov. Scott’s scheme could be over at the administration’s end, disappearing as quickly as it was established seven years ago.

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Kwame is a 1L at HLS. His hometown is Winter Haven, Florida, and he recieved BAs in Government and American Studies at Cornell University. Kwame is active in the Harvard Prison Legal Assistance Project, the American Constitution Society, and the Mississippi Delta Project, and will spend his summer working for the DC Public Defender Service. Follow him at @Kwammentary

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