That’s not to say that the state doesn’t have a set of “rules” governing applications for restoration of civil rights; it does, and they run to more than 20 pages. But at their heart is Rule 4: “[t]he Governor has the unfettered discretion to deny clemency at any time, for any reason.” Applicants for restoration can request ten-minute hearings before the Clemency Board, during which, the court’s opinion notes, a number apparently feel it wise to pledge their allegiance to conservative political values. One ex-felon admitted to the board that he had voted illegally during the waiting period for restoration. When Governor Rick Scott asked him about the vote, he responded, “Actually I voted for you.”
Scott restored him on the spot. But that magnanimity was uncharacteristic: The court’s opinion notes that between 2007 and 2011, Republican Governor Charlie Crist restored voting rights to 154,000 ex-felons; since Scott took over in 2011, the total is “less than 3,000.”
The state argued that because restoration is an “act of grace,” like a pardon, the governor’s power to set restoration rules is unreviewable. Walker noted that this case is not a challenge to the granting or refusal of any specific claim, which probably would be beyond review. But the system itself cannot be beyond review, he reasoned:
Defendants essentially argue that vote-restoration for former felons can only occur on the state’s terms. Once a felon loses the right to vote, only the state may grant it back in a manner of its choosing. A person convicted of a crime may have long ago exited the prison cell and completed probation. Her voting rights, however, remain locked in a dark crypt. Only the state has the key—but the state has swallowed it. Only when the state has digested and passed that key in the unforeseeable future—maybe in five years, maybe in 50—along with the possibility of some virus-laden stew of viewpoint discrimination and partisan, religious, or racial bias, does the state in an “act of mercy,” unlock the former felon’s voting rights from its hiding place. … 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.
Even though ex-felons do not have a “right” to vote, Walker reasoned, the arbitrariness and potential bias of the restoration process offend “two First Amendment rights; namely, free association and free expression.” Voting itself has not clearly been held to be protected speech; but, Walker drew on Justice Anthony Kennedy’s opinion in Citizens United v. Federal Election Commission, and on another case granting First Amendment protection to voter-registration efforts:
It is inconsistent to find that corporate expenditures spent during a campaign or filling out a voter-registration form are core expressive activities, but that voting—the end result of these other protected activities—is non-expressive. To declare voting a non-expressive activity would relegate this crucial right to a lower form of First Amendment protection than those very activities that are intricately intertwined with voting.
Once voting is characterized as First Amendment activity, it is hornbook law that neither the state or any official can have “unfettered discretion” over who gets to do it. The state argued that it had an interest in “limiting the franchise to responsible voters”; Walker said that the interest may be real, “[b]ut Florida does not use the least-restrictive means to pursue” that end, as First Amendment analysis requires. The state’s methods, Walker said, were not only “crushingly restrictive” but also very likely “viewpoint based,” since officials can and apparently do favor felons with whom they agree over those whom they don’t. “All the component parts of the vote-restoration process that Defendants wave like shiny objects to distract from potential viewpoint discrimination . . . mean nothing if the Governor alone has final authority to restore Plaintiffs’ rights.”
Walker has given the state less than two weeks to propose a system that will operate fairly. The hurry is because, if the current system is struck down without a replacement, the governor will have no power to restore voting rights act until one is found. The judge’s decision is certain to face appeal, and uncertain prospects before the Eleventh Circuit. Certainly, however, it is heartening that such a wretched remnant of the Slave Power has failed at least the first stage of judicial scrutiny.