On March 13, 2017, disenfranchised ex-felons filed a class action lawsuit in the U.S. District Court for the Northern District of Florida, Tallahassee Division. The plaintiffs sued the governor of Florida, members of his cabinet, and the other members of the Florida Executive Clemency Board under 42 U.S.C. § 1983. The plaintiffs, represented by lawyers from Fair Elections Legal Network, sought certification as a class, declaratory relief, and injunctive relief. They argue that Florida's re-enfranchisement scheme in which the Executive Clemency Board exercises "unfettered discretion" regarding the re-enfranchisement of felons violated the plaintiffs' rights under the First Amendment and Fourteenth Amendment's Due Process clause.

The defendants' moved to dismiss the complaint on June 13, 2017, citing a failure to state a claim under 42 U.S.C. §1983 for which relief can be granted. Defendants' claimed that Section 2 of the Fourteenth Amendment affirmatively authorizes states to permanently disenfranchise convicted felons, and that authority was not circumvented by right to vote claims in the First Amendment or in Section 1 of the Fourteenth Amendment. They contended that the Florida re-enfranchisement scheme is more generous than what is required under the Constitution.

For the next year, the parties engaged in discovery. the cross-motions for summary judgment were delivered on February 1, 2018. On March 27, 2018, Judge Mark E. Walker granted the plaintiffs' motion for summary judgment on the First Amendment challenge to the board's discretion over re-enfranchisement, the Fourteenth Amendment Equal Protection and 42 U.S.C. §1983 challenge to the arbitrary allocation of re-enfranchisement by the board, and the First Amendment challenge to the lack of timelines for re-enfranchisement which could result in viewpoint discrimination. He denied the plaintiffs' First and Fourteenth amendment challenges to Florida's five-to-seven year waiting periods before felons can begin the re-enfranchisement process. This last count was the basis for the plaintiffs seeking class certification, so the plaintiffs then withdrew their motion for class certification following the ruling.

Judge Walker permanently enjoined the defendants from enforcing the unconstitutional voter registration scheme. Additionally, he ruled that defendants must promulgate specific and neutral criteria to direct vote-restoration decisions before April 26, 2018. The court additionally retained jurisdiction to monitor defendants' compliance, as well as to entertain motions for attorneys' fees and costs. The defendants appealed the judgment to the 11th Circuit on April 4, 2018. 315 F. Supp. 3d 1244.

On April 25, 2018 the 11th Circuit stayed injunctions granted by the district court, pending the resolution of the appeal. (Circuit Judge Stanley Marcus, William H. Pryor, and Beverly B. Martin). 888 F.3d 1206. The court expedited the appeal and heard oral arguments on July 25, 2018. The case remains open.

Edward Cullen - 10/09/2018


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