Late last week the Center for Equal Opportunity filed an appellate amicus brief supporting the state of Florida in a case that challenges the state’s procedure for reenfranchising felons only on a case-by-case basis after they have appeared before a state board. Below are a few excerpts from last week’s brief, which is available below for download. By the way, CEO has filed dozens of amicus briefs on our issues — opposing racial preferences, criticizing the “disparate impact” approach to civil-rights enforcement, and so forth — as the brief last week explains.
INTEREST OF AMICUS CURIAE
The Center for Equal Opportunity (CEO) is a research and educational organization formed pursuant to Section 501(c)(3) of the Internal Revenue Code and devoted to issues of race and ethnicity. Its fundamental vision is straightforward: America has always been a multiethnic and multiracial nation, and it is becoming even more so. This makes it imperative that our national policies do not divide our people according to skin color and national origin. Rather, these policies should emphasize and nurture the principles that unify us. E pluribus unum . . . out of many, one. CEO supports color-blind policies and seeks to block the expansion of racial preferences in all areas, including voting. Likewise, it opposes efforts to paint as discriminatory policies that are, in fact, not discriminatory.
CEO has filed amicus curiae briefs in other federal appellate courts on felon disenfranchisement issues. CEO’s President and General Counsel Roger Clegg has written law review articles about felon disenfranchisement issues. See Roger Clegg, George T. Conway III, & Kenneth K. Lee, The Bullet and the Ballot: The Case for Felon Disenfranchisement Statutes, 14 J. Gender Soc. Pol’y & Law 1 (2006) (“Bullet and Ballot”); Roger Clegg, Who Should Vote? 1 Tex. Rev. L. and Pol. 159 (2001). He has also testified before Congress more than once and expressed similar views to state legislatures and officials on felon disenfranchisement issues.
CEO believes that this Court will benefit from its perspective and expertise in this case.
SUMMARY OF THE ARGUMENT
Collateral consequences, including disenfranchisement, have long been in force in the United States, preceding, in particular, the Civil War. In particular, this Court has held 11-1 that felons can be disenfranchised permanently. Johnson v. Gov. of Florida, 405 F. 3d 1214 (2005) (en banc). Florida allows felons who have completed their sentences to ask for relief, including the restoration of the right to vote. The district court found fault with the way Florida goes about that inherently discretionary process and directed it to change its process. In so doing, the district court stuck its nose into a matter the Constitution gives to the states and, thereby, intruded on Florida’s sovereignty as a state. It thereby ignored the strong policy reasons supporting Florida’s approach and did so with no persuasive and overriding constitutional rationale. That district court judgment and remedial order represent a substantial overreaching on its part. This Court has already stayed the district court’s ruling, and it should reverse the judgment.
ARGUMENT
The district court’s remedial order intrudes into an area the Constitution reserves to the States and imposes its own view of sound policy. In this portion of its Brief, CEO will first show that determining the qualification of voters is constitutionally reserved to the states. Before a federal court interferes with that state prerogative, it should have a clear and unambiguous constitutional basis for doing so. Then, CEO will show that a state can reasonably conclude that the process of restoring civil rights is necessarily individualized and not amenable to the imposition of specific standards or rigorous time limits, like those ordered by the district court, particularly where recidivism is concerned.
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Sound policy reasons support both the disenfranchisement of felons and cautious, individualized consideration when reenfranchising them. Indeed, it is entirely reasonable for a state to determine that no mechanical formula will help it decide whether a felon has in fact turned over a new leaf — that is, whether it is likely that the felon is now responsible, trustworthy, and committed enough to following the law that he or she can be entrusted with a role in the solemn enterprises of justice. See pp. 14-15, infra. As a result, it is an inquiry that has to be approached holistically. The amount of time that has lapsed, the seriousness of the crime, whether it was part of a pattern of criminal activity, and what the felon did in confinement and has done since release: all are relevant, and the overall context matters. There is some irony in the fact that the same groups that insist that sentencing should he highly discretionary and are critical of, for example, the federal Sentencing Guidelines, now insist that only mechanical decisionmaking can be constitutional.
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Moreover, this nation maintains certain minimum, objective standards of responsibility, trustworthiness, and commitment to our laws for those allowed to participate in the solemn enterprise of self-government. As a result, not everyone in the United States may vote; noncitizens, children, and those adjudicated to be mentally incompetent may not vote. In the same way, it is reasonable to believe that those who have committed serious crimes against their fellow citizens lack the necessary responsibility, trustworthiness, and commitment to our nation’s laws.
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Florida’s discretionary process necessarily entails individualized consideration of “many facts and circumstances.” As Governor Scott explained, the focus is on determining whether the applicant has demonstrated remorse and has turned his or her life around. The Board seeks to make a fair judgment of the suitability of relief, taking into account public safety.
Public safety includes consideration of recidivism. As Appellants showed in their Stay Application, the Florida Clemency Board’s “current procedures more effectively avoid restoring civil rights to applicants who are likely to re-offend than did the less selective procedures that were previously in place.” [Then our brief discusses various Florida and U.S. Justice Department studies related to recidivism.]
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The Justice Department’s study and Florida’s experience show that caution in reenfranchising felons is warranted.
CONCLUSION
For the reasons stated in the Brief of Defendants-Appellants and this amicus brief, this Court should reverse the judgment of the District Court and direct that court to enter summary judgment in favor of Defendants-Appellants and vacate its injunction.
