blanche to bow in street cars were not dependent upon the kindness of strangers who were dependent on the kindness of our friends and just gales is a friend he comes well experience and well equipped to help us  ten years on the state court bench for i believe it now is on the federal court bench in practice before that and he how will tell you all before we start is  judges us full load bearing members of the court which means they get their share of the work and as well as their participation in the case for that said let's take up the first case which is handy scott three big picture points fairly encapsulate our position on appeal and that perhaps may be of some assistance to the court in assessing the very important issues raised by this case first in a nutshell our position is that the state panel of this court got it right when it concluded just a few months ago that finding precedent holds that florida's discretionary clemen y system is not facially unconstitutional even though the applicable regime does not require clemency decisions to be made pursuant to specific standards in our judgment that principle standing alone is sufficient to resolve this case and different and perhaps more difficult questions can and should be left for another day second while our good friends on the other side take issue with the state panel's interpretation of this court's precedent it is undisputed that no case in the history of the republic has ever accepted plaint constitutional claims here and i'd like to be specific no case state or federal published or unpublished district court or appellate court from this or from any other circuit has ever held or even implied that clemency decisions in general or clemency decisions implicating boat restoration in particular must be made pursuant to specific standards and third serious dock trial and practical consequences could flow from accepting plaintiffs conceitedly novel constitutional theory and i'd like to flag just a few of those for the court first implications for every other species of executive clemency out there full pardons conditional pardons commutations of sentences restoration of the individual right to keep and bear arms and restoration of every other civil right and including right to serve on a jury and to run for public office second practical implications for the federal pardon power set out in article two section two clause one of the united states constitution it now appears to be undisputed that plaintiff's constitutional theory if accepted would render the federal pardon power unconstitutional as applied to florida to floridians who have a federal felony conviction are not allowed to vote because of that conviction and who want to get back their right to vote by applying for a presidential pardon which conceitedly is not directed by neutral and specific criteria and finally as an amicus brief submitted by the state of missouri points out there are forty eight states that take the vote away from convicted felons including during incarceration those convicted felons of course enjoy first amendment rights just like all american citizens and as the amicus points out the practical doc trying all implication of plaintiff's constitutional theory would be to invalidate the clemency systems of all forty eight of those states in so far clemency systems provide a mechanism just just curious what to do the two states i didn't know there were two vermont in new hampshire your honor which allow convicted felons who are incarcerated to vote while they're in prison so your argument is even california takes away their voting rot convicted felons and california does take away convicted felons voting rights your yes and little dorrit i'm sorry florida isn't a small class  as i understand it of the fifty states in the district columbia and in the district columbia only florida iowa and kentucky have the system employed by florida right where there is unfair discretion by the executive to decide whether or not rights restored or is that correct i don't think that's exactly correct your honor but you make a fair point which is that there are different categories of felon disenfranchise statutes we've argued on page twenty four footnote four of our brief and i don't think this is disputed that there are approximately thirteen other states that provide for purely discretionary restoration of the ability to vote with respect to some or all categories of convicted felons even after they've completed all the terms and conditions of their incarceration i think what your honor's question is getting to and it's a fair point is that florida's law sweeps a little bit broadly and that some of those other laws that we've referred to in footnote for some of those other states that we've referred to in footnote four they don't apply to every felony conviction they only apply to some but our point is that with respect to the legal issue that's in front of the court there are lots of states that have purely discretionary clemency process these implicating whether you can get back the ability to the i just i just want narrow down what we're talking about here two states you never disenfranchised based on a felony conviction and as i understand it the overwhelming majority of states restoration of rights are restored automatically once you either complete your sentence and or a parole or probation correct for some categories of felons the majority of states do provide for automatic restoration that's what you're on  i'd be incorrect to say that at least forty states restore rights automatically for some felony convictions and we think it's a little for for some i don't remember seeing the number forty your  honor i believe that i'm using approximate and saying approximately yes your honor there are a lot of states that provide for automatic restoration especially with your honor's qualification as to some categories how many of the states employee  no standards for this important decision so that's a great question your honor and it points to the distinction between two very different things one is clemency processes that provide a mechanism by which a convicted felon can get back the right to vote at some point and the other is laws that provide for a non clemency process by which the right to vote can be restored now with respect to the first category your honor we're not aware of any state that has clemency processes that are directed by neutral and specific criteria and certainly the norm is question points out the state certainly has the prerogative to adopt a policy that provides for automatic non discretion or not non discretionary restoration of the right to vote and  states as your honor has pointed out have resorted to that mechanism florida's ok ok i'm certain it interrupt you but ok there are states that whether it's all felony convictions or some category of felonies or write a stored rights risk are restored automatically once a person has completed his or her term of incarceration and or parole and probation correct yes or no and then there are other states that will have some process for which someone would apply to the executive to make that determination to the executive or maybe even to the courts ok yes to the executive or the courts but other than florida  kentucky and iowa all those other states at least have some criteria correct so with respect to some categories of felons yes with respect to the ones who are automatically rian franchise pardons and commutations different from a restoration of voting rights i mean you seem to lump them all together i mean could could couldn't one restore a defendant voting rights without pardoning that person or commuting his or her sentence yes absolutely in florida where the only mechanism by which a convicted felon can read gain the right to vote is through the pardon process or a species of the pardon power well you see through the pardon process when you pardon some when you pardon someone or commute their sentence that someone to vote without commuting his or her sentence or getting a full pardon right they could and florida does have as your honor's question points out different kinds of clemency that are available to applicants one is you can apply for a full pardon which would relieve the applicant of all the consequences of the felony conviction or you can apply for example for restoration of civil rights which would still be an application of the pardon power your honor but it's a limited application you know for our purposes i think they are honest questions point out and this is an absolutely fair point that there are legitimate policy concerns that have been raised  legitimate policy arguments that have been raised and that absolutely warrant careful consideration our judgment is that those policy arguments ought to be submitted to the policymaking branches of state government and with respect to the legal question that's in front of the court we do as the state panel pointed out have controlling authority holding the purely discretionary restoration of the right to vote by the clemency power is not facially unconstitutional and i'd like to talk about some of those cases if i may if first  before you get into those is a policy of complete discretion in this arena always facially constitutional is really the only way that you can attack it is this what your argument is that you can attack it constitutionally is to go with an as applied challenge so  purely yes your honor a purely discretionary clemency process is not facially unconstitutional under control and authorities that were identified by the state panel including versus brighter m from the supreme court and this court making it clear that purely discretionary pardon and clemency processes are not facially unconstitutional then it's your honour's question points out there are the point there is the possibility of as applied challenges that could be raised  in certain specific circumstances but as the state panel pointed out here we don't even have an allegation from plaintiffs that in their cases discretion was exercised in contravent of any constitutional prohibition including anti discrimination prohibitions viewpoint discrimination as this this court pointed out and it's stay order we don't even have a suggestion that that happened to any of the plaintiffs in this case and so what that basically leaves is is the mere possibility that discretion could be exercised unwisely or even appropriately in a particular case sufficient to establish the facial and validity of the system and the short answer to that question is we have controlling authority that says no and we don't have any case in the history of the republic that goes the other way so it with the current administration they've only granted the restoration rights to less than three thousand individuals and in the last administration in office for half the time there were about one hundred fifty thousand grants and in the administration before that over the course of eight years there were about seventy thousand grants so what explains that discrepancy  rules were promulgated in march of two thousand and eleven and before that under the old rules there was various kinds of either screen wind or automatic restoration of rights we're not arguing for a second that that's impermissible we're just saying it's not constitutionally mandated and again we don't have any authority that goes the other way i don't so respectfully direct daughter's attention to the supreme court's decision and richardson versus ramirez there the court actually mentioned in the statement of the case that plaintiffs had complained that under the clemency process that was available to convicted felons in california very very few i think with something like zero point five percent were able to obtain relief via the clemency process but in the case that the court was talking about clemency not not simply the restoration of voting rights right the challenge was to the state's authority to disenfranchise convicted felons at all and in the context of that challenge the court observed that there was a clemency process by which even felons who had completed all the terms and conditions of their incarceration could get back their right to vote including through a  that case than in other cases has any court specifically talked about the restoration of voting rights as opposed to pardons in clemency and a broader sense the case that speaks most does not facially violate the fourteenth amendment in so far as it provides for discretionary restoration of the right to vote and as the state panel also pointed out beecham is controlling authority it's never been overruled by the supreme court it's been cited with approval by the supreme court for example richardson versus ramirez and by this court sitting on bonk and johnson versus governor of the state of florida and of course more importantly we have post beecham authority from this court and from the supreme court the cases that i mentioned before that confirm as the state panel stretched the broad discretion of the executive to grant or deny clemency your honor even when life is stick and think about that for a second because that was the case in s versus now where a felon who had been sentenced to death applied for a commutation of his death sentence and it was undisputed that the state of georgia had a purely discretionary process for deciding whether to commute that death sentence so quite literally every single right conceivable was at stake for that clemency applicant including the right to vote and nevertheless this court held that that purely discretionary clemency system did not violate the constitution and i'd like to if i may talk about why because this court's decision in smith versus now really does speak quite precisely to some of the most important issues in this case what's different about clements why is it ok to have this unfettered discretion and clemency processes well the court said for a couple of reasons one is because clemency does not take rights away at the end of the day what plaintiffs are complaining about is a loss of the right to vote and smith versus no points out not exactly the voting rights context or honor but substantially analogous  that problem is caused by the criminal conviction not by the absence of mercy in the form of executive clemency and the criminal conviction of course is entered in full compliance with all the robust procedural safeguards to which all criminal defendants are entitled before a judgment of conviction it can become can be entered for become final and direct review so the first part of the analysis is clemency can only help the applicant it can't hurt them it's intended to serve as a check on the exercise of judicial power as chief justice rehnquist pointed out in ohio deal parole authority versus what and the second part of this analysis your honor and this is kind of a point that the court gets to intimate versus now is so you've got the robust procedural safeguards that attend the entry of the criminal conviction then you've got the fact that clemency can only hurt can only help the applicant and on top of that he was undisputed that the supreme court and connecticut board of pardons versus john chat held that no process is due when someone is applying for which is to prevent harbor turnus and curb discretion then you clearly do not have a right to challenge the fact that the decision is discretionary and that analysis of course recommendation to the court is we're not asking you to issue any kind of sweeping our novel constitutional ruling or decide issues that you don't have to in order to dispose of this case so we don't want the court to rule out the possibility that the first amendment might provide some protections for certain expressive association or interests that are tied to and derived from the right to vote where it exists but here's the point and expressive and association wondrous that are tied to an derived from the right to vote cannot apply where as here there is no right to vote in the first place and why isn't there a right to vote because plaintiffs have concededly lost their right to vote pursuant to the state challenge the process by which they lost their right to vote in the sense that they challenged florida's disenfranchisement statutes and the constitutional provisions the district court rejected that challenge you'll find that it documentary one forty four page thirty nine and it and plaintiffs have not taken an appeal from that aspect of the district court's judgment so our position on to to provide a short answer to hundreds question our position is a convicted felon who has lost the right to  to section two of the fourteenth amendment does not and cannot have a right to vote under the first amendment and that fairly modest submission your honor we think provides a sufficient basis for disposing of plaintiff's first amendment challenge let it but a non but a non convicted felon the first moment does guarantee his or her right to i would not say that your honor but we're not asking you to rule out the possibility that there is some expressive association or interests that are tied to voting it's not a freestanding right to vote and think about it this way we've got the fifteenth and then the nineteenth amendment the twenty fourth amendment the twenty sixth amendment all of which provide specific kind of occasions protecting the right to vote i want to believe that all those codifications are entirely superfluous and that the first amendment actually provided a free standing right to vote to all people who could invoke its protections no one has ever gone that for we don't think the court needs to get into whether and to what extent the first amendment might protect the right to vote in other contexts because the state panel pointed out the first amendment now undisputed that the district court had no authority to permanently prohibit the state from discontinuing clemency processes implicating restoration of voting rights we've argued in our brief that that concession which you'll find on page nineteen of plaintiff's answer brief compels the conclusion that the other challenged aspect of the injunction also has to be reversed and this was the aspect of the injunction that commanded the executive cl promulgate neutral and specific criteria within thirty days you're argument being if you don't have to grant any reason franchise meant you have no authority to order the board clemency board to adopt standards f granting green judgment right that's exactly right and all right i think we have your argument will give me one minute added to your reply time since you left it on the table and hear now from mr sherman thank you very much good morning your honor may please the court john sherman for the pelleas the district court's judgment should be affirmed for the following reasons and i'd like to make several broad arguments at the outset and note in each of these arguments where the  are friends at the table ignore binding precedent that should compel a different result than they want and should compel and firming the judgment in this case the supreme court precedents compel the conclusion that the right to vote is protected by the first amendment and that arbitrarily licensing or allocating that right to vote is unconstitutional under binding precedent felons though presently disenfranchise and in the ineligible to vote as a matter of state law nevertheless suffer a federal constitutional injury because of this arbitrary licensing or allocation of the right to vote once you're past first amendment case implied to voting and what does it hold in your view excuse me your point your best case for the proposition that the first amendment the point doctrine applies to the right to vote rian french osment well it's two lines of precedent your honor for example you don't have a case holding that you're asking to mail to other cases which is fine the well settled principle from the first amendment unfettered discretion cases that the supreme court has decided since one nine hundred thirty eight none of the none of which have been implied in any green franchise not context that's true your honor but you're asking us to be the first court of appeals in the country to hold this correct that is true the application the district court was the first district court in the country to hold this correct that is true your honor yes the unfettered discretion doctrine is well settled and longstanding and has been state pardons and federal pardons florida offers pardons and restoration of civil rights separately so this case does not force the further case that we've been alluding to in our briefing the further in the further case where a state or perhaps florida made the part in the exclusive an exclusive means by which someone could regain the right to vote that would be the case that would force the confrontation whether that if the first amendment is held the president granted a pardon that restores the right to the president's pardon power the president of the states said voting eligibility requirements and states disenfranchise felons pursuant to section two of the fourteenth amendment right now if if the federal government if the president pardons someone as a matter of just natural flow of things they will be really enfranchise as a matter of course in a state with automatic says the reverse of the minimum restrictions viewpoint requirements of non discretionary non arbitrary standards applied then under your view to the president's pardon power our position is in the further case where someone brought a challenge either to discretionary state pardons or discretionary federal pardons it would be the case that the vote right to vote the fundamental right to vote and restoration  that right would have to be handled separately such that the issuance of the city into the federal so you keep are you position is that article two section two is unconstitutional about a lighter amendment to the extent that it does not require our or provide far non discretionary standards for the president granting a pardon power which automatically effects the right at least in federal action this case doesn't raise that issue but i do want to address your honor's point based on the history the history of the clemency power going back to the english monarchy is this voting rights and voting rights restoration obviously had no place in the clemency because one cannot vote under the english monarchy in  america now in a domestic democratic system of government states have made the choice to incorporate voting rights restoration into the executive clemency process now that they've incorporated the voting rights restoration an arbitrary an arbitrary licensing scheme for the right to vote into that clemency process this raises constitutional problems now that there are these constitutional problems in the clemency process the a palin say well these will raise all sorts of other constitutional defects in other species clemency but there is a limiting principle that this court and other courts that confront this issue can apply if the judgment is affirmed defy are constitutional argument is upheld then other species of clemency can be considered first pardons voting rights restoration can be handled separately from both the state and federal pardon power and as to other forms of clemency or other phases of the criminal justice process such as parole probation commutation of sentence the court the courts can say that is simply too attenuated in too far removed from the right to vote which is protected by the first amendment voting rights restoration directly implicates the first amendment right to vote but commutations of sentence are merely  so under your position the president can't have a good uttered unfettered discretion to pardon people because it's a risk of the point discrimination in the first amendment permitting doctrine doesn't allow that i want to clarify one one point on this issue your honor we did look this up and twenty twenty eight c f r one point two talks about the federal pardon power and they do say there no petition for pardon should be filed until the expiration of a waiting period of at least five years after the date of the release of the petitioner from confinement it also says no petition should be submitted by a person who is on probation parole or supervised release that you know standard about what there are literally thousands tens of thousands if not hundreds of thousands of people who meet those criteria and the point is do you have to have  suppress don't have to have and follow standards and criteria for granting pardons to those people are not under your position no your honor because just because different voting rights restoration can and should be handled separately this goes to what isn't under the existing regime and virtually every state if someone has a federal felony conviction at least of a certain category and the president pardons them they get the right to vote back so far forty eight states or whatever subset of them that provide that is that unconstitutional because it allows the risk of the president exercising viewpoint discrimination to be accurate in my response here on our i have to note that there are thirty seven states in the country that automatically restore the right after the completion of incarceration parole or probation or in the case of nebraska after a two year waiting period in all of the states perhaps only minus nebraska so thirty six states the only circumstance in which the federal pardon power would raise the issues your honor is talking about is if the federal pardon was granted prior to the completion of the sentence understand understand so my my response to the question is this if in the future case someone were to challenge the federal pardon power based on the same principle established in this case the remedy would not be that the president has to abide by specific and neutral criteria and standards the remedy as we see it is voting rights restoration simply has to be forced out of the process and separated same with the state thank you howard your position would require federal injunctive relief ordering the states to separate voting right restoration from parking correct in that future case which this case does not force that issue but in the future case if someone were to challenge discretionary pardons which are very limited in both  granting and very limited in where they're available pre sentence completion i reviewed the state's amicus brief that was submitted and it showed that many of these states have post sentence completion waiting periods for pardons that are in excess often far in excess of the waiting periods for voting rights restoration and so in that limited case if someone were to bring a challenge to the discretionary pardon power yes our position in that future case would be that the principle established on the first amendment means that voting rights restoration that one component of the pardon power must be separated back out from the part of the bundle of rights and benefits let me ask you about some old wine as the district court put it the third question presented in the beach circuit is does not the procedure outlined in the florida statutes the florida constitution and the regulations of the body formally known as the pardon board violate the constitution in that there are no ascertainable standards governing the recovery of the fundamental right to vote if the answer to that question is no it doesn't double negative but no it does not if the answer to that is no an unqualified no then you lose respectfully i would disagree your honor the only cat the question constitutional question presented in beecham isn't equal protection i understand that in you made your point but my route question to you is if the procedure outlined under florida law does not violate the constitution in that there are no ascertain standards governing the restoration of right to vote if that answers an unqualified no it does not you lose i would reiterate son you know you would but answer my question right  i disagree that we lose on our first amendment question but as even in the going on even if this brain court came out and said look we know the third question is served petition let's take the restrictions off it doesn't violate any know what it's talking about when it says any part of the constitution which is my hypothetical to you counsel you don't have to take an impossible position if your answer aren't to be yes we would lose if they said that but they didn't say that because it was in the context of an equal protection i understand and we have virtually conceded all that we can do but concede that we lose on the equal protection ground right understood i must say i misunderstood your understand but the way to preserve your credibility is how you've done it in your brief all but concede the equal protection now let's talk about the first amendment which isn't covered by beach if i may just say one more thing on beach in your honor the way we read the heart rate the bowery is that the jurisdictional statement that the plaintiffs in beach and presented to the supreme court it wasn't a circuit to the three judge court the pinion is not what's binding it's the supreme summary of firm and which is silent as to its reasoning the supreme court may well have decided that all we need to decide in this case is that the discretionary pardon power is constitutional and because beecham did not apply for voting rights restoration which was separately offered in one thousand nine hundred sixty we don't need need to reach any of the constitutional implications of discretionary an arbitrary control over the voting voting rights that's our position on each him it concerned only the equal protection clause i understand your honour's point we would move on to the first amendment and i don't the first ut then also and cook we dismissed the first amendment claim as redundant to the others explaining that the first amendment affords no greater protection for voting rights claims than already provided by the fourteenth and fifteenth amendment holding cannot exceed the limits of the facts and claims raised in that case holding can't go beyond the actual claims presented and the reason of your position is that statement would control if it was a holding but it's not a holding so we're not bound by it is a holding to the extent it covers the actual facts in the actual claims in that case which mostly concerned racial discrimination and the denial of an annexation petition the plaintiffs in that mostly but not entirely mostly but not entirely but the first in the thirteenth amendments so the plaintiffs in burton just doubled down on the racial discrimination claims and raising their first amendment arguments the this court has held consistently referring back to the concurring opinion in united states  hunter that the holdings of a prior decision can reach only as far as the facts and circumstances presented to the court in the case which produced that decision the the first amendment holding in burton could only go as far as the racial discrimination argument that was made and the denial of fanatics ation petition there was nothing to the extent it veered beyond those facts and beyond those claims it was dicta that was not bind that's not binding on this court in cook the plaintiff the plaintiff didn't even suffer an injury so as we read cook the real holding there is that the case was moot there was no standing or not even right he had no injury and there was no standing so that any statement in that case that reiterated the broad language the broad dicta from burton was again dicta and not binding on this court defendants have also said that they've tried to make it sound like there is a single unitary right to vote claim but there is no such thing as a single unitary right to vote claim there are a multitude of constitutional doctrines that protect the right to vote and in that case there was not a first amendment unfettered discretion claim as there is here defendants just want to keep things at a high level of generality so that burden sounds precludes that but it isn't so burton must be now be construed in limited to its facts and claims it could not possibly have decided that for all the myriad factual circumstances and all the myriad first amendment doctrines that might come before this court now and forever that the first amendment provides no greater protection than the right than the fourteenth amendment when it comes to voting rights and we know that's not the case because of the supreme court's binding precedence in the first amendment unfettered discretion cases the for decision in forsyth county says expressly that and i read the quote fatal attacks on the discretion granted the decision maker are not dependent on the facts surrounding any particular permit decision the success of a facial challenge on the grounds that an ordinance delegates overly broad discretion to the decision maker rests not on whether the administrator has exercised his discretion in a content based manner but whether there is anything in the ordinance preventing him from doing so this court has said exactly the same thing in miami herald publishing versus hallandale in the unique context of first amendment challenges upon the facial validity of licensing statutes it is the very existence of official discretion that gives rise to the threat of injury sufficient to warrant injunction defendants in the reply brief ignored these cases they ignored all of the cases we listed on pages thirty four and thirty five of our brief roache from the eight circuit fernandez the limmer from the fifth circuit students for life the waldrop all of them stand for the proposition that we do not need to prove actual intentional discrimination in order to make out a first unfettered discretion claim that's the teaching of forsyth county and miami herald but they ignore these precedents in the reply brief the risk or threat of constitutionally impressive impermissible bases for rejecting a license application or rejecting a voting rights restoration application is always present when there is unfettered discretion given to state and local officials to decide whether when you're making that comparison to the licensing concept you're talking about a constitutionally protected right that somebody that the licensing processes is in some way narrowing and so we put restrictions on it why is it legitimate to compare here where the right to vote is is gone at the moment to a licensing scheme with a with a constitutionally protected right why is that a legitimate comparison i want to make two points your honor on this question on making the leap to the analogy to the first amendment unfettered discretion cases one  the appellant's say that there is no first amendment protected right to vote here because felons have been duly disenfranchised pursuant to section two of the fourteenth amendment i think an analogy is clarifying here sixteen and seventeen year olds are presently ineligible to vote in florida they are uniformly and categorically disenfranchised and therefore they have no basis under the first amendment to challenge that in eligibility that's the teaching from cases like johnson the district court opinions and johnson v bush and  go more there's a whole litany that they cite in the string cite we don't make the argument that the first amendment per se prohibits felon disenfranchisement this case is about arbitrary really enfranchise meant if those same sixteen and seventeen year olds were now allowed to apply for the right to vote by state or local election of the and state or election or local election officials had unfettered discretion to grant or deny those applications for the right to vote now they would have a first amendment injury where as they previously didn't it is that arbitrary licensing of the right to vote that arbitrary allocation or reallocation of the right to vote to a group that would otherwise be ineligible to vote if florida had made the decision to uniformly disenfranchise for life all felons in the state there would be no constitutional issue but they've just months they decide to re enfranchise some felons they cannot do so arbitrarily isn't that the risk of your challenge that florida could simply say we're not really in franchising absolutely your honor that is a risk that we understand based on their briefing on the motion for stay they've said they have no intention of doing so and they when they made such statements to the district court that amounted to so much bluffing now they they could go back and do it let's see if we agree with you the day after we agree and just announce ok fine no more rian french ozment congratulations absolutely your honor that is a risk that we understand but it given the last seven and a half years we're only a couple hundred people per year have been given the rights to vote back some of the process it could scarcely get worse than it currently is so you're willing to throw the next couple of hundred under the bus and say that's not enough to clue is that that's that's not our risk assessment your honor respectfully our risk assessment is the process has been dropped from one hundred fifty four thousand over four years granted to a little around three thousand over the last seven and a half years let me give let me  alesha the first amendment what does florida the minimum amount of things that florida has to do to restrict that discretion give us an example i think that it they they took steps in that direction with their draft rules but is a very difficult and even impossible question to answer in the abstract we would need to evaluate a new restoration scheme and see whether it cures the first amendment violation by that i mean does it eliminate the risk that the executive clemen so long as you have some discretion how can you eliminate all risk there are there is a minimal amount of discretion in accepting voter registration applications voting registrars have to make calls a system constitutional under the district courts in your position they can establish specific and neutral criteria that i just want they can look to criminal records which are objective and that can be reviewed you've given some thought to what you're asking the federal courts to require them to do we have we asked the district court to impose a system that would look at just whatever waiting period was in the law for the specific felony that was committed and after that crime after that waiting period had elapsed to automatically restore their right to vote we lost that issue we lost on that issue and we didn't appeal that right so the injunction as it stands calls for specific neutral criteria to be imposed i couldn't suggest today what would be objective requirements that the board could look at their staff would have to evaluate what they can do what's objective what can they look at within their system and within other materials that they can gather and evaluate whether or not that individual who is applying or submitting a notification or getting just getting information from the department of corrections oh and i can tell most not to look too closely at regimes in other states do you know of any other state non home to manik restoration criteria that you think it's constitutional so some of these i wouldn't say that in the abstract that they're constitutional but there are states like nevada and arizona that talk about first time offenders versus recidivists there are states that talk to look at the seriousness of the felony that's been committed and divide out the different categories whether there's been  know violent physical harm as part of the crime that's in a different category whether it's been a sex offense but is it a formula are do you just consider these criterion at the end you have a chief executive or chief executive cabinet making the decision these are basically eligibility criteria they put you into one of two buckets why it one would be automatic restoration once you get in the eligible bucket by the standards objective standards most common objectives sound like there's some leeway but let's call them objective then there's still discretion in the book pure and unfettered discretion your honor in the eleven states that we counted as live and that have pure and unfettered that have excuse me discretionary restoration of the right to vote for than florida i count florida virginia iowa and kentucky the other seven states for some portion of the felons either first time offenders or less serious offenses some there is an automatic restoration rule for some categories understands but and many states do you want to apply the criteria you land up with an eligible bucket from which there is discretion in which the in those other eleven states or other ten depending on whether florida is and are they unconstitutional because once you get in the bucket there's discretion and viewpoint discrimination opportunities exist and so which creates the risk of a constitutional challenge our position is this principle should be applied to all of those states there's no reason to distinguish them they are holdovers and this digital regimes you know that still are incorporating voting rights restoration into so they said you know i mistrust those eleven would be unconstitutional to that's that's correct your honor the only caveat i would put on that again this goes back to our dialogue on the pardon power is kentucky i believe is the only state in the country that makes voting rights that makes the pardon the single an exclusive path to voting rights restoration so that would force the further question of whether or not the discretionary pardon power is unconstitutional as to the voting rights restoration component and this case doesn't force that is you even if this got to the supreme court there are ways to limit the holding limit the holding of this case so it only applies to voting rights restoration which directly and specifically implicates the first amendment right but according to your argument the only thing that would be constitutional is putting in criteria that led to the automatic restoration because if you've been less if you have any other scheme you can cab in the decision but at the end there is unfe automatic rian franchise meant that you start plugging in a formula that somebody could sit in a dark room and it just would be automatic they would plug them in and if you if you go through the the steps you would get it because how else do you avoid a moment of unfettered discretion that may well be the logical outcome of what exists in all these cases in says the automatic rian franchise that not automatically enfranchisement what did what it is is an app the clay it respectfully it's an application process the we fought against an application requirement we fought for automatic restoration we lost those arguments if florida were to come up with a scheme that would involve an application and then the office of executive clemency reviewing whether or not that person filk you know fulfilled certain specific a neutral criteria based on a review of their criminal records or payment of remission the payment of fines and restitution etc that could lead to restoration automatic restoration if you check all the boxes you have to get it how else do you eliminate unfettered discretion at the very end i think i understand your honor but we agree that that's probably what what would have to criteria but at the end of the day they're still unfettered discretion unless we go with automatic restoration tell me where i'm wrong and wanted to be clear what we lost was that the district court could not impose automatic restoration but if the first amendment principle commands and we believe it does the first amendment principle that we fought for in this case commands that there be specific neutral criteria and that would be florida coming up with a neutral and specific criteria regime by which people would be restored to their right to vote and that's what they got closer to with their draft rules which they were about to discuss and vote on when the this court stepped in and stayed the injunction but to the extent that it at the end of the day however small the second third or fourth bucket is if there is any discretion under your view it's unconstitutional correct because it would the supreme court's binding precedent your honor says that you cannot have an arbitrary licensing scheme for first amendment protected rights it gives rise to the risk of discriminatory biased in arbitrary treatment we've seen that in this case where people are denied for speeding tickets denied for arrests that don't lead to prosecution denied for drinking in moderation denied for a whole host of reasons including whether or not the governor quote unquote feels comfortable on a given day that simply isn't consistent with the first amendment precedents and inconsistent with the values of the democratic system of government that's very helpful i appreciate that answer now mr aguilar all you've got six minutes thank you your hon answer brief where they explained that they're relying on first amendment case law that provides for quote a zero tolerance policy with respect to even the risk of discrimination so if plaintiffs novel constitutional theor accepted by this court we're going to go from a situation where right now you have case law from the supreme court and this court expressly and unambiguously approving of unfettered discretion and clemency and you're going to go to exactly the polar opposite where clemency officers would have zero discretion that is a radical change in existing law and it illustrates the dangers of reasoning by analogy to case law that articulates kind of some principles at a high level of generality that have never been a plot as this court pointed out and it's tailored to convicted felons i'm not even sure that it's been applied permeating us policy in the first amendment and i think your honor is is right i mean there are so many problems with the argument it would have to be first in the case law would have to be extended and a whole lot of different ways to get to this conclusion and then you'd be in a situation where you would have irreconcilable case law with respect to cl y proceedings and there's no reason for this court to go down that road and let me ask you about one other argument that you raised in your brief and i think we've reached that point of it that if we were to agree with the other side's position that we would in essence be saying you have to come up with neutral criteria and then at the at the end of the day it's an automatic rian franchise may have certain criteria are met let's talk about separation of powers that we would be ordering you to set up that system that's right you if if plaintiffs are right the district court would have to direct the clemency board to promulgate neutral and specific criteria eliminating heart the district court order was essentially you don't have any standards board just create some standards i mean that's what the court said you create your own standards and that's what the go over the board  just be open ended standards has for example the statutory sentencing factors set out in eighteen u s c thirty five fifty three act if you would have to have basically objective criteria that would provide for automatic restoration of voting rights and we've never had any court and the history of the country order a state to promulgated neutral and specific criteria to direct clemency decisions one reason why the separation of powers problem here is so acute your honor is because we have case law from the supreme court holding that a state need not enact any clemency process in the first place for example there are verses collins which is cited in our reply brief and course richardson versus ramirez which makes it clear that a state need not have any clemency process by which the right to vote in particular and ohio adult carolled thirty vs would or the supreme court decision constitutional safeguards we're not just talking about the due process clause but this unfettered discretion with no congressional no constitutional  implications i mean it seems the court is not really suggesting what you just suggest suggested we would respectfully disagree your honor i think you raise a really really important point and let me put it this way on page two seventy six of the water decision the opinion of the court states clearly and unambiguously this is not just justice o'connor this is the opinion of the court at five twenty three us at two seventy six that the clemency for however is committed as  to the discretion of the executive and the full court again so as the clemency powers historically have not been the business of the courts and therefore have been subject to limited if any judicial review justice o'connor as your honor points out doesn't have any quarrel with that proposition and her concurring opinion she does kind of create a safety valve of sorts and the safety valve says if you have a kind of gross malfunction then she's going to leave open the possibility that judicial intervention in her words might be appropriate and she'll streets the kind of situation that you'd have to have for that safety valve to apply one you'd have to have a situation in which a clemency officer is flipping a coin to determine whether climates he should be granted were to have a state completely arbitrary and i the clemency applicant any access to its clemency process and i want to be clear about this we are not saying that the constitution doesn't apply to clemency processes it absolutely does our position is that applicable constitutional requirements are satisfied if you have a discretionary clemency process would that be more along the lines of an as applied challenge that's exactly right and that's the kind of situation to which justice o'connor's concurring opinion appears to be referring as well as this court's decision and banks versus secretary of the florida department of corrections which also leaves open the possibility that if you have a gross malfunction of that kind that you to show intervention might be appropriate as this court emphasized in its