U.S. District Court Northern District of Florida (Tallahassee) CIVIL DOCKET FOR CASE #: 4:17−cv−00128−MW−CAS

CLOSED

HAND et al v. SCOTT et al Assigned to: CHIEF JUDGE MARK E WALKER Referred to: MAGISTRATE JUDGE CHARLES A STAMPELOS Demand: $0
Case in other court: USCA, 18−11388−G
Cause: 28:1331 Federal Question: Other Civil Rights
Plaintiff

Date Filed: 03/13/2017 Date Terminated: 01/30/2020 Jury Demand: None Nature of Suit: 441 Civil Rights: Voting Jurisdiction: Federal Question

JAMES MICHAEL HAND

represented by DIANA L MARTIN COHEN MILSTEIN SELLERS ETC PLLC − PALM BEACH GARDENS FL 2925 PGA BLVD SUITE 200 PALM BEACH GARDENS, FL 33410 561−515−1400 Fax: 561−515−1401 Email: dmartin@cohenmilstein.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

THEODORE JON LEOPOLD COHEN MILSTEIN SELLERS & TOLL 2925 PGA BOULEVARD PALM BEACH GARDENS, FL 33410 516−515−1400 Fax: 516−515−1401 Email: tleopold@cohenmilstein.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

BRITTNIE R BAKER FAIR ELECTIONS LEGAL NETWORK 1825 K STREET NW SUITE 450 WASHINGTON, DC 20006 202−248−5347 Email: bbaker@fairelectionsnetwork.com TERMINATED: 09/06/2017

JONATHAN LEE SHERMAN FAIR ELECTIONS LEGAL NETWORK 1825 K STREET NW SUITE 450 WASHINGTON, DC 20006 202−248−5346 Email: jsherman@fairelectionsnetwork.com ATTORNEY TO BE NOTICED

MICHELLE E KANTER COHEN FAIR ELECTIONS LEGAL NETWORK 1825 K STREET NW SUITE 450 WASHINGTON, DC 20006 202−248−5347 Email: mkantercohen@fairelectionsnetwork.com ATTORNEY TO BE NOTICED

Plaintiff JOSEPH JAMES GALASSO
Plaintiff HAROLD W GIRCSIS, JR

POORAD RAZAVI COHEN MILSTEIN SELLERS & TOLL 2925 PGA BLVD SUITE 200 PALM BEACH GARDENS, FL 33410 561−515−1400 Fax: 561−515−1401 Email: prazavi@cohenmilstein.com ATTORNEY TO BE NOTICED
represented by DIANA L MARTIN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THEODORE JON LEOPOLD (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BRITTNIE R BAKER (See above for address) TERMINATED: 09/06/2017
JONATHAN LEE SHERMAN (See above for address) ATTORNEY TO BE NOTICED
MICHELLE E KANTER COHEN (See above for address) ATTORNEY TO BE NOTICED
POORAD RAZAVI (See above for address) ATTORNEY TO BE NOTICED
represented by DIANA L MARTIN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THEODORE JON LEOPOLD (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BRITTNIE R BAKER (See above for address) TERMINATED: 09/06/2017
JONATHAN LEE SHERMAN (See above for address) ATTORNEY TO BE NOTICED
MICHELLE E KANTER COHEN (See above for address) ATTORNEY TO BE NOTICED
POORAD RAZAVI (See above for address) ATTORNEY TO BE NOTICED

Plaintiff CHRISTOPHER MICHAEL SMITH
Plaintiff WILLIAM BASS
Plaintiff JERMAINE JOHNEKINS

represented by DIANA L MARTIN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THEODORE JON LEOPOLD (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BRITTNIE R BAKER (See above for address) TERMINATED: 09/06/2017
JONATHAN LEE SHERMAN (See above for address) ATTORNEY TO BE NOTICED
MICHELLE E KANTER COHEN (See above for address) ATTORNEY TO BE NOTICED
POORAD RAZAVI (See above for address) ATTORNEY TO BE NOTICED
represented by DIANA L MARTIN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THEODORE JON LEOPOLD (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BRITTNIE R BAKER (See above for address) TERMINATED: 09/06/2017
JONATHAN LEE SHERMAN (See above for address) ATTORNEY TO BE NOTICED
MICHELLE E KANTER COHEN (See above for address) ATTORNEY TO BE NOTICED
POORAD RAZAVI (See above for address) ATTORNEY TO BE NOTICED
represented by DIANA L MARTIN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THEODORE JON LEOPOLD (See above for address)

Plaintiff YRAIDA LEONIDES GUANIPA
Plaintiff JAMES LARRY EXLINE

LEAD ATTORNEY ATTORNEY TO BE NOTICED
BRITTNIE R BAKER (See above for address) TERMINATED: 09/06/2017
JONATHAN LEE SHERMAN (See above for address) ATTORNEY TO BE NOTICED
MICHELLE E KANTER COHEN (See above for address) ATTORNEY TO BE NOTICED
POORAD RAZAVI (See above for address) ATTORNEY TO BE NOTICED
represented by DIANA L MARTIN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THEODORE JON LEOPOLD (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BRITTNIE R BAKER (See above for address) TERMINATED: 09/06/2017
JONATHAN LEE SHERMAN (See above for address) ATTORNEY TO BE NOTICED
MICHELLE E KANTER COHEN (See above for address) ATTORNEY TO BE NOTICED
POORAD RAZAVI (See above for address) ATTORNEY TO BE NOTICED
represented by BRITTNIE R BAKER (See above for address) TERMINATED: 09/06/2017
MICHELLE E KANTER COHEN (See above for address) ATTORNEY TO BE NOTICED
POORAD RAZAVI (See above for address) ATTORNEY TO BE NOTICED
JONATHAN LEE SHERMAN (See above for address) ATTORNEY TO BE NOTICED

Plaintiff VIRGINIA KAY ATKINS
V. Defendant RICK SCOTT IN HIS OFFICIAL CAPACITY AS GOVERNOR OF FLORIDA AND MEMBER OF THE STATE OF FLORIDA'S EXECUTIVE CLEMENCY BOARD

represented by BRITTNIE R BAKER (See above for address) TERMINATED: 09/06/2017
MICHELLE E KANTER COHEN (See above for address) ATTORNEY TO BE NOTICED
POORAD RAZAVI (See above for address) ATTORNEY TO BE NOTICED
JONATHAN LEE SHERMAN (See above for address) ATTORNEY TO BE NOTICED
represented by AMIT AGARWAL OFFICE OF THE ATTORNEY GENERAL − TALLAHASSEE FL THE CAPITOL STE PL−01 400 S MONROE ST TALLAHASSEE, FL 32399 850−414−3681 Email: amit.agarwal@myfloridalegal.com ATTORNEY TO BE NOTICED
ASHLEY E DAVIS FLORIDA DEPARTMENT OF STATE RA GRAY BUILDING 500 SOUTH BRONOUGH STREET SUITE 100 TALLAHASSEE, FL 32399 850−245−6531 Email: ashley.davis@dos.myflorida.com TERMINATED: 06/09/2017
EDWARD M WENGER HOPPING GREEN & SAMS − TALLAHASSEE FL 119 S MONROE STREET SUITE 300 TALLAHASSEE, FL 32301 850−425−4358 Fax: 850−224−8551 Email: edw@hgslaw.com TERMINATED: 12/30/2019 ATTORNEY TO BE NOTICED
JONATHAN ALAN GLOGAU FLORIDA ATTORNEY GENERAL OFFICE PL−01 THE CAPITOL TALLAHASSEE, FL 32399 850−414−3300 Fax: 850−414−9650 Email: jon.glogau@myfloridalegal.com ATTORNEY TO BE NOTICED
JORDAN E PRATT

Defendant PAM BONDI IN HER OFFICIAL CAPACITY AS THE ATTORNEY GENERAL OF FLORIDA AND MEMBER OF THE EXECUTIVE CLEMENCY BOARD
Defendant JEFF ATWATER IN HIS OFFICIAL CAPACITY AS CHIEF FINANCIAL OFFICER AND MEMBER OF THE EXECUTIVE CLEMENCY BOARD TERMINATED: 09/27/2017

773 EAGLE VIEW DRIVE TALLAHASSEE, FL 32311 813−385−7831 Email: jordan.e.pratt@gmail.com ATTORNEY TO BE NOTICED
LANCE ERIC NEFF ATTORNEY GENERAL − 107 W GAINES − TALLAHASSEE FL 107 WEST GAINES ST TALLAHASSEE, FL 32301 850−414−3633 Fax: 850−488−4872 Email: lance.e.neff@myfloridalegal.com ATTORNEY TO BE NOTICED
represented by AMIT AGARWAL (See above for address) ATTORNEY TO BE NOTICED
ASHLEY E DAVIS (See above for address) TERMINATED: 06/09/2017
DENISE HARLE ALLIANCE DEFENDING FREEDOM 1000 HURRICANE SHOALS RD NE SUITE D1100 LAWRENCEVILLE, GA 30043 770−339−0774 Fax: 770−339−6744 Email: dharle@ADFlegal.org ATTORNEY TO BE NOTICED
EDWARD M WENGER (See above for address) TERMINATED: 12/30/2019
JONATHAN ALAN GLOGAU (See above for address) ATTORNEY TO BE NOTICED
JORDAN E PRATT (See above for address) ATTORNEY TO BE NOTICED
LANCE ERIC NEFF (See above for address) ATTORNEY TO BE NOTICED
represented by AMIT AGARWAL (See above for address) ATTORNEY TO BE NOTICED
ASHLEY E DAVIS (See above for address) TERMINATED: 06/09/2017
JONATHAN ALAN GLOGAU (See above for address) ATTORNEY TO BE NOTICED

Defendant ADAM H PUTNAM IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF AGRICULTURE AND MEMBER OF THE EXECUTIVE CLEMENCY BOARD
Defendant KEN DETZNER IN HIS OFFICIAL CAPACITY AS SECRETARY OF STATE OF FLORIDA

JORDAN E PRATT (See above for address) ATTORNEY TO BE NOTICED
LANCE ERIC NEFF (See above for address) ATTORNEY TO BE NOTICED
represented by AMIT AGARWAL (See above for address) ATTORNEY TO BE NOTICED
ASHLEY E DAVIS (See above for address) TERMINATED: 06/09/2017
EDWARD M WENGER (See above for address) TERMINATED: 12/30/2019 ATTORNEY TO BE NOTICED
JONATHAN ALAN GLOGAU (See above for address) ATTORNEY TO BE NOTICED
JORDAN E PRATT (See above for address) ATTORNEY TO BE NOTICED
LANCE ERIC NEFF (See above for address) ATTORNEY TO BE NOTICED
represented by AMIT AGARWAL (See above for address) ATTORNEY TO BE NOTICED
ASHLEY E DAVIS (See above for address) TERMINATED: 06/09/2017
DAVID ANDREW FUGETT FLORIDA DEPARTMENT OF STATE OFFICE OF GENERAL COUNSEL 500 S BRONOUGH STREET SUITE 100 TALLAHASSEE, FL 32399−0250 850−245−6536 Fax: 850−245−6127 Email: david.fugett@dos.myflorida.com ATTORNEY TO BE NOTICED
EDWARD M WENGER (See above for address) TERMINATED: 12/30/2019
JONATHAN ALAN GLOGAU (See above for address) ATTORNEY TO BE NOTICED
JORDAN E PRATT (See above for address)

Defendant JULIE L JONES IN HER OFFICIAL CAPACITY AS SECRETARY OF THE DEPARTMENT OF CORRECTIONS
Defendant MELINDA N COONROD IN HER OFFICIAL CAPACITY AS COMMISSIONER AND CHAIR OF THE FLORIDA COMMISSION ON OFFENDER REVIEW

ATTORNEY TO BE NOTICED
LANCE ERIC NEFF (See above for address) ATTORNEY TO BE NOTICED
WILLIAM JORDAN JONES FLORIDA DEPARTMENT OF STATE 500 SOUTH BRONOUGH STREET TALLAHASSEE, FL 32399−0250 850−245−6536 Email: jordan.jones@dos.myflorida.com ATTORNEY TO BE NOTICED
represented by AMIT AGARWAL (See above for address) ATTORNEY TO BE NOTICED
ASHLEY E DAVIS (See above for address) TERMINATED: 06/09/2017
EDWARD M WENGER (See above for address) TERMINATED: 12/30/2019
JONATHAN ALAN GLOGAU (See above for address) ATTORNEY TO BE NOTICED
JORDAN E PRATT (See above for address) ATTORNEY TO BE NOTICED
LANCE ERIC NEFF (See above for address) ATTORNEY TO BE NOTICED
represented by AMIT AGARWAL (See above for address) ATTORNEY TO BE NOTICED
ASHLEY E DAVIS (See above for address) TERMINATED: 06/09/2017
EDWARD M WENGER (See above for address) TERMINATED: 12/30/2019
JONATHAN ALAN GLOGAU (See above for address) ATTORNEY TO BE NOTICED
JORDAN E PRATT (See above for address) ATTORNEY TO BE NOTICED
LANCE ERIC NEFF (See above for address) ATTORNEY TO BE NOTICED

Defendant RICHARD D DAVISON IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF THE FLORIDA COMMISSION ON OFFENDER REVIEW
Defendant DAVID A WYANT IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF THE FLORIDA COMMISSION ON OFFENDER REVIEW
Defendant JULIA MCCALL IN HER OFFICIAL CAPACITY AS COORDINATOR FOR THE OFFICE OF EXECUTIVE CLEMENCY OF THE FLORIDA COMMISSION ON OFFENDER REVIEW

represented by AMIT AGARWAL (See above for address) ATTORNEY TO BE NOTICED
ASHLEY E DAVIS (See above for address) TERMINATED: 06/09/2017
EDWARD M WENGER (See above for address) TERMINATED: 12/30/2019
JONATHAN ALAN GLOGAU (See above for address) ATTORNEY TO BE NOTICED
JORDAN E PRATT (See above for address) ATTORNEY TO BE NOTICED
LANCE ERIC NEFF (See above for address) ATTORNEY TO BE NOTICED
represented by AMIT AGARWAL (See above for address) ATTORNEY TO BE NOTICED
ASHLEY E DAVIS (See above for address) TERMINATED: 06/09/2017
EDWARD M WENGER (See above for address) TERMINATED: 12/30/2019
JONATHAN ALAN GLOGAU (See above for address) ATTORNEY TO BE NOTICED
JORDAN E PRATT (See above for address) ATTORNEY TO BE NOTICED
LANCE ERIC NEFF (See above for address) ATTORNEY TO BE NOTICED
represented by AMIT AGARWAL (See above for address) ATTORNEY TO BE NOTICED
ASHLEY E DAVIS (See above for address) TERMINATED: 06/09/2017
EDWARD M WENGER (See above for address) TERMINATED: 12/30/2019

Defendant JIMMY PATRONIS IN HIS OFFICIAL CAPACITY AS CHIEF FINANCIAL OFFICER AND MEMBER OF THE EXECUTIVE CLEMENCY BOARD
Amicus MARK R SCHLAKMAN

JONATHAN ALAN GLOGAU (See above for address) ATTORNEY TO BE NOTICED
JORDAN E PRATT (See above for address) ATTORNEY TO BE NOTICED
LANCE ERIC NEFF (See above for address) ATTORNEY TO BE NOTICED
represented by AMIT AGARWAL (See above for address) ATTORNEY TO BE NOTICED
EDWARD M WENGER (See above for address) TERMINATED: 12/30/2019 ATTORNEY TO BE NOTICED
JONATHAN ALAN GLOGAU (See above for address) ATTORNEY TO BE NOTICED
JORDAN E PRATT (See above for address) ATTORNEY TO BE NOTICED
LANCE ERIC NEFF (See above for address) ATTORNEY TO BE NOTICED

Date Filed 03/13/2017
03/13/2017 03/13/2017
03/15/2017

# Docket Text
1 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF against All Defendants ( Filing fee $ 400 receipt number AFLNDC−3825751.), filed by Yraida Leonides Guanipa, Jospeh James Galasso, James Michael Hand, Jermaine Johnekins, Harold W. Gircsis, Jr, Christopher Michael Smith, William Bass. (Attachments: # 1 Summons for Rick Scott, # 2 Summons for Pam Bondi, # 3 Summons for Jeff Atwater, # 4 Summons for Adam Putnam, # 5 Summons for Ken Detzner, # 6 Summons for Julie Jones, # 7 Summons for Melinda Coonrod, # 8 Summons for David Wyant, # 9 Summons for Richard Davison, # 10 Summons for Julia McCall) (BAKER, BRITTNIE) (Entered: 03/13/2017)
2 CIVIL COVER SHEET. (BAKER, BRITTNIE) (Entered: 03/13/2017)
3 DOCKET ANNOTATION BY COURT TO ATTORNEY BRITTNIE BAKER: Re 1 Complaint − Counsel is advised that party names (including aliases) are to be added using all caps and no punctuation (See "Style Guide for Electronic Case Filing," available on Clerk's website). The party names will be corrected by the clerk. (vkm) (Entered: 03/15/2017)
4 Summons Issued as to JEFF ATWATER, PAM BONDI, MELINDA N COONROD, RICHARD D DAVISON, KEN DETZNER, JULIE L JONES, JULIA MCCALL, ADAM H PUTNAM, RICK SCOTT, DAVID A WYANT. (Attachments: # 1 Summons (Bondi), # 2 Summons (Atwater), # 3 Summons (Detzner), # 4 Summons (Jones), # 5 Summons (Putnam), # 6 Summons (Coonrod), # 7 Summons (Wyant), # 8

03/28/2017 03/28/2017 03/28/2017 03/28/2017 03/28/2017 03/28/2017 03/28/2017
03/31/2017 03/31/2017 03/31/2017

Summons (Davison), # 9 Summons (McCall)) (vkm) (Entered: 03/15/2017)
5 AFFIDAVIT of Service for Class Action Complaint for Declaratory and Injunctive Relief served on Jeff Atwater on 03/21/2017, filed by WILLIAM BASS, JOSEPH JAMES GALASSO, HAROLD W GIRCSIS, JR, YRAIDA LEONIDES GUANIPA, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, CHRISTOPHER MICHAEL SMITH. (MARTIN, DIANA) (Entered: 03/28/2017)
6 AFFIDAVIT of Service for Class Action Complaint for Declaratory and Injunctive Relief served on Melinda Coonrod on 03/22/2017, filed by WILLIAM BASS, JOSEPH JAMES GALASSO, HAROLD W GIRCSIS, JR, YRAIDA LEONIDES GUANIPA, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, CHRISTOPHER MICHAEL SMITH. (MARTIN, DIANA) (Entered: 03/28/2017)
7 AFFIDAVIT of Service for Class Action Complaint for Declaratory and Injunctive Relief served on Julia McCall on 03/22/2017, filed by WILLIAM BASS, JOSEPH JAMES GALASSO, HAROLD W GIRCSIS, JR, YRAIDA LEONIDES GUANIPA, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, CHRISTOPHER MICHAEL SMITH. (MARTIN, DIANA) (Entered: 03/28/2017)
8 AFFIDAVIT of Service for Class Action Complaint for Declaratory and Injunctive Relief served on Richard D. Davison on 03/22/2017, filed by WILLIAM BASS, JOSEPH JAMES GALASSO, HAROLD W GIRCSIS, JR, YRAIDA LEONIDES GUANIPA, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, CHRISTOPHER MICHAEL SMITH. (MARTIN, DIANA) (Entered: 03/28/2017)
9 AFFIDAVIT of Service for Class Action Complaint for Declaratory and Injunctive Relief served on Ken Detzner on 03/22/2017, filed by WILLIAM BASS, JOSEPH JAMES GALASSO, HAROLD W GIRCSIS, JR, YRAIDA LEONIDES GUANIPA, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, CHRISTOPHER MICHAEL SMITH. (MARTIN, DIANA) (Entered: 03/28/2017)
10 AFFIDAVIT of Service for Class Action Complaint for Declaratory and Injunctive Relief served on David A. Wyant on 03/22/2017, filed by WILLIAM BASS, JOSEPH JAMES GALASSO, HAROLD W GIRCSIS, JR, YRAIDA LEONIDES GUANIPA, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, CHRISTOPHER MICHAEL SMITH. (MARTIN, DIANA) (Entered: 03/28/2017)
11 SUMMONS Returned Executed by YRAIDA LEONIDES GUANIPA, JOSEPH JAMES GALASSO, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, HAROLD W GIRCSIS, JR, CHRISTOPHER MICHAEL SMITH, WILLIAM BASS. JEFF ATWATER served on 3/21/2017, answer due 4/11/2017; MELINDA N COONROD served on 3/22/2017, answer due 4/12/2017; RICHARD D DAVISON served on 3/22/2017, answer due 4/12/2017; KEN DETZNER served on 3/22/2017, answer due 4/12/2017; JULIA MCCALL served on 3/22/2017, answer due 4/12/2017; DAVID A WYANT served on 3/22/2017, answer due 4/12/2017. (vkm) (Entered: 03/29/2017)
12 AFFIDAVIT of Service for Class Action Complaint for Declaratory and Injunctive Relief served on Julie Jones on 03/27/2017, filed by WILLIAM BASS, JOSEPH JAMES GALASSO, HAROLD W GIRCSIS, JR, YRAIDA LEONIDES GUANIPA, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, CHRISTOPHER MICHAEL SMITH. (MARTIN, DIANA) (Entered: 03/31/2017)
13 AFFIDAVIT of Service for Class Action Complaint for Declaratory and Injunctive Relief served on Pam Bondi on 03/27/2017, filed by WILLIAM BASS, JOSEPH JAMES GALASSO, HAROLD W GIRCSIS, JR, YRAIDA LEONIDES GUANIPA, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, CHRISTOPHER MICHAEL SMITH. (MARTIN, DIANA) (Entered: 03/31/2017)
14 AFFIDAVIT of Service for Class Action Complaint for Declaratory and Injunctive Relief served on Adam Putnam on 03/27/2017, filed by WILLIAM BASS, JOSEPH JAMES GALASSO, HAROLD W GIRCSIS, JR, YRAIDA LEONIDES GUANIPA, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, CHRISTOPHER MICHAEL SMITH. (MARTIN, DIANA) (Entered: 03/31/2017)

03/31/2017 03/31/2017
03/31/2017
04/05/2017 04/05/2017 04/06/2017
04/06/2017 04/06/2017 04/06/2017 04/06/2017 04/06/2017 04/06/2017

15 AFFIDAVIT of Service for Class Action Complaint for Declaratory and Injunctive Relief served on Rick Scott on 03/27/2017, filed by WILLIAM BASS, JOSEPH JAMES GALASSO, HAROLD W GIRCSIS, JR, YRAIDA LEONIDES GUANIPA, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, CHRISTOPHER MICHAEL SMITH. (MARTIN, DIANA) (Entered: 03/31/2017)
16 DOCKET ANNOTATION BY COURT TO ATTORNEY DIANA MARTIN: Re 12 , 13 , 14 , & 15 Affidavits of Service − Counsel is advised by this entry, that Return of Service should be filed as Summons Returned Executed or Summons Returned Unexecuted. Please use the event selection "Summons Returned Executed" or "Summons Returned Unexecuted" which is found under "Initial Pleadings and Service" under "Service of Process" (vkm) (Entered: 04/03/2017)
17 SUMMONS Returned Executed by YRAIDA LEONIDES GUANIPA, JOSEPH JAMES GALASSO, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, HAROLD W GIRCSIS, JR, CHRISTOPHER MICHAEL SMITH, WILLIAM BASS. PAM BONDI served on 3/27/2017, answer due 4/17/2017; JULIE L JONES served on 3/27/2017, answer due 4/17/2017; ADAM H PUTNAM served on 3/27/2017, answer due 4/17/2017; RICK SCOTT served on 3/27/2017, answer due 4/17/2017. (vkm) (Entered: 04/03/2017)
18 NOTICE of Appearance by JONATHAN ALAN GLOGAU on behalf of All Defendants (GLOGAU, JONATHAN) (Entered: 04/05/2017)
19 NOTICE of Appearance by ASHLEY E DAVIS on behalf of All Defendants (DAVIS, ASHLEY) (Entered: 04/05/2017)
20 MOTION to Appear Pro Hac Vice by JON SHERMAN.( Filing fee $ 201 receipt number AFLNDC−3846652.) by WILLIAM BASS, JOSEPH JAMES GALASSO, HAROLD W GIRCSIS, JR, YRAIDA LEONIDES GUANIPA, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, CHRISTOPHER MICHAEL SMITH. (Attachments: # 1 Exhibit D.C. Court of Appeals Certificate of Good Standing − Jon Sherman) (SHERMAN, JONATHAN) (Entered: 04/06/2017)
21 INITIAL SCHEDULING ORDER: Rule 26 Meeting Report due by 5/22/2017. Discovery due by 8/4/2017. Status Report due by 5/8/2017. Signed by JUDGE MARK E WALKER on 4/6/2017. (vkm) (Entered: 04/06/2017)
22 ORDER ADMITTING JON SHERMAN PRO HAC VICE − This Court has considered, without hearing, Plaintiff' motion for leave to appear pro hac vice. ECF No. 20 . Accordingly, the motion is GRANTED and JON SHERMAN is admitted pro hac vice as counsel for Plaintiffs. Signed by JUDGE MARK E WALKER on 4/6/2017. (vkm) (Entered: 04/06/2017)
23 NOTICE of Appearance by DAVID ANDREW FUGETT on behalf of KEN DETZNER (FUGETT, DAVID) (Entered: 04/06/2017)
24 MOTION to Extend TimeTo Respond, MOTION for Extension of Time to File Response/Reply by JEFF ATWATER, PAM BONDI, MELINDA N COONROD, RICHARD D DAVISON, KEN DETZNER, JULIE L JONES, JULIA MCCALL, ADAM H PUTNAM, RICK SCOTT, DAVID A WYANT. (DAVIS, ASHLEY) (Entered: 04/06/2017)
25 NOTICE of Appearance by WILLIAM JORDAN JONES on behalf of KEN DETZNER (JONES, WILLIAM) (Entered: 04/06/2017)
26 NOTICE of Telephonic Hearing on 24 MOTION to Extend Time :Telephonic Motion Hearing set for 4/12/2017 01:30 PM in U.S. Courthouse Tallahassee before JUDGE MARK E WALKER.
You may dial into the conference call as early as 1:25 PM EST. Call in number: 888−684−8852. When prompted for an access code, enter: 3853136#. If you are asked to join as the host, just ignore and wait until you are asked for a security code. When asked for a security code, enter: 4565#. Say your name, when prompted. You are now in the conference call. Remember to mute your phone when you are not speaking.
s/ Pam Lourcey Courtroom Deputy Clerk

04/10/2017 04/12/2017
04/27/2017
05/08/2017 05/09/2017 05/18/2017 05/19/2017 05/25/2017
06/08/2017 06/08/2017 06/13/2017 06/13/2017
06/13/2017

The quality of the audio connection is compromised by the use of cell phones or speakerphones and counsel are requested not to use those devices during the call. (pll) (Entered: 04/06/2017)
27 NOTICE of Appearance by JORDAN E PRATT on behalf of All Defendants (PRATT, JORDAN) (Entered: 04/10/2017)
28 Minute Entry for proceedings held before JUDGE MARK E WALKER: Motion Hearing held on 4/12/2017 re 24 MOTION to Extend TimeTo Respond. Court GRANTS IN PART AND DENIES IN PART 24 Motion to Extend Time. Plaintiffs Amended Complaint due on or before April 28, 2017. Defendants response due on or before June 13, 2017.( Amended Pleadings due by 4/28/2017., Answer to Amended Complaint due by 6/13/2017.). (Court Reporter Megan Hague.) (pll) (Entered: 04/12/2017)
29 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF against All Defendants All Defendants., filed by YRAIDA LEONIDES GUANIPA, JOSEPH JAMES GALASSO, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, HAROLD W GIRCSIS, JR, CHRISTOPHER MICHAEL SMITH, WILLIAM BASS, JAMES LARRY EXLINE, VIRGINIA KAY ATKINS. (SHERMAN, JONATHAN) (Entered: 04/27/2017)
30 STATUS REPORT JOINT by VIRGINIA KAY ATKINS, WILLIAM BASS, JAMES LARRY EXLINE, JOSEPH JAMES GALASSO, HAROLD W GIRCSIS, JR, YRAIDA LEONIDES GUANIPA, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, CHRISTOPHER MICHAEL SMITH. (SHERMAN, JONATHAN) (Entered: 05/08/2017)
Rest Deadlines Re: 21 INITIAL SCHEDULING ORDER: Status Report due by 6/8/2017. (vkm) (Entered: 05/09/2017)
31 REPORT of Rule 26(f) Planning Meeting. (BAKER, BRITTNIE) (Entered: 05/18/2017)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of JUDGE MARK E WALKER notified that action is needed Re: 31 Report of Rule 26(f) Planning Meeting (vkm) (Entered: 05/19/2017)
32 SCHEDULING ORDER re 31 Report: (Answer to Amended Complaint due by 6/13/2017., Dispositive Motions to be filed by 9/29/2017., Discovery due by 9/1/2017., Response in Opposition to Motion for Class Certification due by 10/20/2017., Motion for Class Certification due by 9/29/2017., Reply to Response in Opposition due by 10/27/2017.) Signed by JUDGE MARK E WALKER on 5/25/2017. (tdl) (Entered: 05/26/2017)
33 NOTICE of Appearance by LANCE ERIC NEFF on behalf of JEFF ATWATER, PAM BONDI, MELINDA N COONROD, RICHARD D DAVISON, KEN DETZNER, JULIE L JONES, JULIA MCCALL, ADAM H PUTNAM, RICK SCOTT, DAVID A WYANT (NEFF, LANCE) (Entered: 06/08/2017)
34 STATUS REPORT JOINT by VIRGINIA KAY ATKINS, WILLIAM BASS, JAMES LARRY EXLINE, JOSEPH JAMES GALASSO, HAROLD W GIRCSIS, JR, YRAIDA LEONIDES GUANIPA, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, CHRISTOPHER MICHAEL SMITH. (SHERMAN, JONATHAN) (Entered: 06/08/2017)
35 NOTICE of Appearance by AMIT AGARWAL on behalf of All Defendants (AGARWAL, AMIT) (Entered: 06/13/2017)
36 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , MOTION to Dismiss for Lack of Jurisdiction ( (Internal deadline for referral to judge if response not filed earlier: 6/27/2017).) by JEFF ATWATER, PAM BONDI, MELINDA N COONROD, RICHARD D DAVISON, KEN DETZNER, JULIE L JONES, JULIA MCCALL, ADAM H PUTNAM, RICK SCOTT, DAVID A WYANT. (AGARWAL, AMIT) (Entered: 06/13/2017)
37 MOTION to Stay Discovery, MOTION for Extension of Time to Complete Discovery by JEFF ATWATER, PAM BONDI, MELINDA N COONROD, RICHARD D

06/14/2017 06/15/2017
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DAVISON, KEN DETZNER, JULIE L JONES, JULIA MCCALL, ADAM H PUTNAM, RICK SCOTT, DAVID A WYANT. (AGARWAL, AMIT) (Entered: 06/13/2017)
38 ORDER EXTENDING DEADLINE TO RESPOND TO DISCOVERY REQUESTS re ECF No. 37 . The motion is GRANTED in part and DENIED in part. Signed by JUDGE MARK E WALKER on 6/14/2017. (tdl) (Entered: 06/14/2017)
39 MOTION for Extension of Time to File Response/Reply to Defendants' Motion to Dismiss by VIRGINIA KAY ATKINS, WILLIAM BASS, JAMES LARRY EXLINE, JOSEPH JAMES GALASSO, HAROLD W GIRCSIS, JR, YRAIDA LEONIDES GUANIPA, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, CHRISTOPHER MICHAEL SMITH. (SHERMAN, JONATHAN) (Entered: 06/15/2017)
40 ORDER GRANTING EXTENSION TO RESPOND TO MOTION TO DISMISS. This Court has considered, without hearing, Plaintiffs' Unopposed Motion to Extend Time to Respond to Defendants' Motion to Dismiss. ECF No. 39 . The motion is GRANTED. Plaintiffs shall file their response on or before 7/5/2017). Signed by JUDGE MARK E WALKER on 6/16/2017. (kjw) (Entered: 06/16/2017)
41 MOTION for Leave to File a Longer Memorandum In Opposition to Defendants' Motion to Dismiss by VIRGINIA KAY ATKINS, WILLIAM BASS, JAMES LARRY EXLINE, JOSEPH JAMES GALASSO, HAROLD W GIRCSIS, JR, YRAIDA LEONIDES GUANIPA, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, CHRISTOPHER MICHAEL SMITH. (SHERMAN, JONATHAN) (Entered: 06/30/2017)
42 ORDER GRANTING 41 LEAVE TO FILE LONGER MEMORANDUM. Plaintiffs may file a response up to 9,500 words in length. Signed by JUDGE MARK E WALKER on 7/1/17. (pll) (Entered: 07/01/2017)
43 MEMORANDUM in Opposition re 36 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM MOTION to Dismiss for Lack of Jurisdiction filed by VIRGINIA KAY ATKINS, WILLIAM BASS, JAMES LARRY EXLINE, JOSEPH JAMES GALASSO, HAROLD W GIRCSIS, JR, YRAIDA LEONIDES GUANIPA, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, CHRISTOPHER MICHAEL SMITH. (SHERMAN, JONATHAN) (Entered: 07/05/2017)
44 STATUS REPORT Joint by VIRGINIA KAY ATKINS, WILLIAM BASS, JAMES LARRY EXLINE, JOSEPH JAMES GALASSO, HAROLD W GIRCSIS, JR, YRAIDA LEONIDES GUANIPA, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, CHRISTOPHER MICHAEL SMITH. (SHERMAN, JONATHAN) (Entered: 07/07/2017)
45 MOTION for Leave to File re 36 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM MOTION to Dismiss for Lack of Jurisdiction by PAM BONDI. (HARLE, DENISE) (Entered: 07/07/2017)
Reset Deadline Re: 21 INITIAL SCHEDULING ORDER: Status Report due by 8/8/2017. (vkm) (Entered: 07/10/2017)
46 ORDER GRANTING 45 MOTION FOR LEAVE TO FILE REPLY TO MOTION TO DISMISS − Reply due by 7/19/2017. Signed by JUDGE MARK E WALKER on 7/10/2017. (vkm) (Entered: 07/10/2017)
47 MOTION for Leave to File Excess Pages by JEFF ATWATER, PAM BONDI, MELINDA N COONROD, RICHARD D DAVISON, KEN DETZNER, JULIE L JONES, JULIA MCCALL, ADAM H PUTNAM, RICK SCOTT, DAVID A WYANT. (PRATT, JORDAN) (Entered: 07/18/2017)
48 NOTICE of Appearance by POORAD RAZAVI on behalf of All Plaintiffs (RAZAVI, POORAD) (Entered: 07/19/2017)
49 ORDER GRANTING MOTION TO EXPAND WORD COUNT − Defendants' Unopposed Motion for Leave to Expand the Word Limit for Their Reply Memorandum, ECF No. 47 , is GRANTED. Defendants may file a reply up to 4,700 words in length. Signed by JUDGE MARK E WALKER on 7/19/2017. (cle) (Entered: 07/19/2017)

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50 REPLY to Response to Motion re 36 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM MOTION to Dismiss for Lack of Jurisdiction filed by JEFF ATWATER, PAM BONDI, MELINDA N COONROD, RICHARD D DAVISON, KEN DETZNER, JULIE L JONES, JULIA MCCALL, ADAM H PUTNAM, RICK SCOTT, DAVID A WYANT. (AGARWAL, AMIT) (Entered: 07/19/2017)
51 MOTION to Compel Production of Documents by VIRGINIA KAY ATKINS, WILLIAM BASS, JAMES LARRY EXLINE, JOSEPH JAMES GALASSO, HAROLD W GIRCSIS, JR, YRAIDA LEONIDES GUANIPA, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, CHRISTOPHER MICHAEL SMITH. (SHERMAN, JONATHAN) (Entered: 07/26/2017)
Set/Reset Deadlines as to 51 MOTION to Compel Production of Documents. (Internal deadline for referral to judge if response not filed earlier: 8/9/2017). (vkm) (Entered: 07/26/2017)
52 ORDER DIRECTING DEFENDANT TO RESPOND TO PLAINTIFFS' 51 MOTION TO COMPEL − Defendants must file an expedited response to the motion on or before 8/7/2017. The Clerk shall set this matter for hearing after August 7, 2017. Signed by JUDGE MARK E WALKER on 7/27/2017. (vkm) (Entered: 07/27/2017)
53 NOTICE of Telephonic Hearing on 51 MOTION to Compel Production of Documents :Telephonic Motion Hearing set for 8/11/2017 10:00 AM in U.S. Courthouse Tallahassee before JUDGE MARK E WALKER.
You may dial into the conference call as early as 9:55 AM EST. Call in number: 888−684−8852. When prompted for an access code, enter: 3853136#. If you are asked to join as the host, just ignore and wait until you are asked for a security code. When asked for a security code, enter: 4565#. Say your name, when prompted. You are now in the conference call. Remember to mute your phone when you are not speaking.
s/ Pam Lourcey Courtroom Deputy Clerk
The quality of the audio connection is compromised by the use of cell phones or speakerphones and counsel are requested not to use those devices during the call. (pll) (Entered: 07/27/2017)
54 NOTICE of Unavailability by JEFF ATWATER, PAM BONDI, MELINDA N COONROD, RICHARD D DAVISON, KEN DETZNER, JULIE L JONES, JULIA MCCALL, ADAM H PUTNAM, RICK SCOTT, DAVID A WYANT re 53 Notice of Hearing on Motion,,, 52 Order,, Set Deadlines/Hearings, (PRATT, JORDAN) (Entered: 08/01/2017)
55 NOTICE of Telephonic Hearing on 51 MOTION to Compel Production of Documents :Telephonic Motion Hearing reset for 8/12/2017 08:30 AM in U.S. Courthouse Tallahassee before JUDGE MARK E WALKER.
**Due to Counsel's complex schedule, this hearing has been reset to a time at which this Court routinely works.**
You may dial into the conference call as early as 8:25 AM EST. Call in number: 888−684−8852. When prompted for an access code, enter: 3853136#. If you are asked to join as the host, just ignore and wait until you are asked for a security code. When asked for a security code, enter: 4565#. Say your name, when prompted. You are now in the conference call. Remember to mute your phone when you are not speaking.
s/ Pam Lourcey Courtroom Deputy Clerk
The quality of the audio connection is compromised by the use of cell phones or speakerphones and counsel are requested not to use those devices during the call. (pll) (Entered: 08/01/2017)
56 NOTICE of Hearing on 51 MOTION to Compel Production of Documents : Motion Hearing set for 8/11/2017 11:00 AM in U.S. Courthouse Tallahassee before JUDGE MARK E WALKER.

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You may dial into the conference call as early as 10:55 AM EST. Call in number: 888−684−8852. When prompted for an access code, enter: 3853136#. If you are asked to join as the host, just ignore and wait until you are asked for a security code. When asked for a security code, enter: 4565#. Say your name, when prompted. You are now in the conference call. Remember to mute your phone when you are not speaking.
s/ Pam Lourcey Courtroom Deputy Clerk
The quality of the audio connection is compromised by the use of cell phones or speakerphones and counsel are requested not to use those devices during the call. (pll) (Entered: 08/03/2017)
57 RESPONSE in Opposition re 51 MOTION to Compel Production of Documents filed by JEFF ATWATER, PAM BONDI, JULIA MCCALL, ADAM H PUTNAM, RICK SCOTT. (NEFF, LANCE) (Entered: 08/07/2017)
58 MOTION for Extension of Time to Complete Discovery and Modify Scheduling Order by VIRGINIA KAY ATKINS, WILLIAM BASS, JAMES LARRY EXLINE, JOSEPH JAMES GALASSO, HAROLD W GIRCSIS, JR, YRAIDA LEONIDES GUANIPA, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, CHRISTOPHER MICHAEL SMITH. (BAKER, BRITTNIE) (Entered: 08/07/2017)
59 STATUS REPORT Joint by VIRGINIA KAY ATKINS, WILLIAM BASS, JAMES LARRY EXLINE, JOSEPH JAMES GALASSO, HAROLD W GIRCSIS, JR, YRAIDA LEONIDES GUANIPA, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, CHRISTOPHER MICHAEL SMITH. (SHERMAN, JONATHAN) (Entered: 08/08/2017)
60 ORDER GRANTING 58 MOTION TO EXTEND DISCOVERY DEADLINE AND MODIFY SCHEDULING ORDER. (Dispositive Motions to be filed by 10/27/2017., Discovery due by 9/29/2017., Motions due by 10/27/2017.) Signed by JUDGE MARK E WALKER on 8/9/2017. (tdl) (Entered: 08/09/2017)
61 Minute Entry for proceedings held before JUDGE MARK E WALKER: Motion Hearing held on 8/11/2017 re 51 MOTION to Compel Production of Documents. Order to follow. (Court Reporter Megan Hague.) (pll) (Entered: 08/11/2017)
62 ORDER ON MOTION TO COMPEL − Plaintiffs' motion to compel, ECF No. 51 , is DENIED. Signed by JUDGE MARK E WALKER on 8/11/2017. (cle) (Entered: 08/11/2017)
63 MOTION to Withdraw as Attorney by VIRGINIA KAY ATKINS, WILLIAM BASS, JAMES LARRY EXLINE, JOSEPH JAMES GALASSO, HAROLD W GIRCSIS, JR, YRAIDA LEONIDES GUANIPA, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, CHRISTOPHER MICHAEL SMITH. (BAKER, BRITTNIE) (Entered: 09/06/2017)
64 ORDER GRANTING 63 MOTION TO WITHDRAW AS COUNSEL − The Clerk shall disconnect Ms. Baker from receipt of CM/ECF notices in this case. This Court notes that Plaintiffs are still represented by counsel. Attorney BRITTNIE R BAKER terminated. Signed by JUDGE MARK E WALKER on 9/6/2017. (vkm) (Entered: 09/06/2017)
65 STATUS REPORT JOINT by VIRGINIA KAY ATKINS, WILLIAM BASS, JAMES LARRY EXLINE, JOSEPH JAMES GALASSO, HAROLD W GIRCSIS, JR, YRAIDA LEONIDES GUANIPA, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, CHRISTOPHER MICHAEL SMITH. (SHERMAN, JONATHAN) (Entered: 09/07/2017)
Reset Deadline Re: 21 INITIAL SCHEDULING ORDER: Status Report due by 10/10/2017. (vkm) (Entered: 09/08/2017)
66 ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' 36 MOTION TO DISMISS − The motion, as it relates to Defendants Governor Rick Scott, Attorney General Pam Bondi, Chief Financial Officer Jeff Atwater, and Commissioner of Agriculture Adam H. Putnam, is DENIED. The other defendants,

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who are not members of the Executive Clemency Board, are not responsible for the challenged scheme and thus the motion, as it relates to Defendants Ken Detzner, Julie L. Jones, Melinda N. Coonrod, Richard D. Davison, David A. Wyant, and Julia McCall, is GRANTED. The Clerk shall set this matter for a telephonic status conference to readdress the briefing schedule. Signed by JUDGE MARK E WALKER on 9/19/2017. (vkm) (Entered: 09/19/2017)
67 NOTICE OF HEARING : Telephonic Scheduling Conference set for 9/26/2017 10:30 AM in U.S. Courthouse Tallahassee before JUDGE MARK E WALKER.
You may dial into the conference call as early as 10:25 AM EST. Call in number: 888−684−8852. When prompted for an access code, enter: 3853136#. If you are asked to join as the host, just ignore and wait until you are asked for a security code. When asked for a security code, enter: 4565#. Say your name, when prompted. You are now in the conference call. Remember to mute your phone when you are not speaking.
s/ Pam Lourcey Courtroom Deputy Clerk
The quality of the audio connection is compromised by the use of cell phones or speakerphones and counsel are requested not to use those devices during the call. (pll) (Entered: 09/20/2017)
68 Minute Entry for proceedings held before JUDGE MARK E WALKER: Scheduling Conference held on 9/26/2017. Motions for Summary Judgment and Class Certification due by November 13, 2017. Responses to Motions for Summary Judgment and Class Certification due by December 4, 2017. Replies to Responses to Motions for Summary Judgment and Class Certification due by December 11, 2017. Scheduling Conference held on 9/26/2017. ( Motions due by 11/13/2017.) ( Response due by : 12/4/2017)., Replies due by 12/11/2017.). (Court Reporter Megan Hague.) (pll) (Entered: 09/26/2017)
69 MOTION to Compel RESPONSES TO INTERROGATORIES AND PRODUCTION OF DOCUMENTS AND ELECTRONICALLY STORED INFORMATION by VIRGINIA KAY ATKINS, WILLIAM BASS, JAMES LARRY EXLINE, JOSEPH JAMES GALASSO, HAROLD W GIRCSIS, JR, YRAIDA LEONIDES GUANIPA, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, CHRISTOPHER MICHAEL SMITH. (Attachments: # 1 Exhibit Exhibit A − Plaintiffs' First Set of Discovery Requests to Executive Clemency Board Defendants, # 2 Exhibit Exhibit B − Defendants' Response to Plaintiffs' First Set of Requests for Production, # 3 Exhibit Exhibit C − Plaintiffs' Third Set of Discovery Requests to Executive Clemency Board Defendants, # 4 Exhibit Exhibit D − Defendants' Responses to Plaintiffs' Third Set of Discovery Requests to Executive Clemency Board Defendants, # 5 Exhibit Exhibit E − Defendants' Signed Partial Response to Interrogatory No. 1 in Third Set of Discovery Requests, # 6 Exhibit Exhibit F − Sample Annotated Agenda from March 2015 Executive Clemency Board Hearing, # 7 Exhibit Exhibit G − Excerpt from December 14, 2000 Executive Clemency Board Hearing Transcript, # 8 Exhibit Exhibit H − Excerpt from December 3, 1997 Executive Clemency Board Hearing Transcript) (SHERMAN, JONATHAN) (Entered: 09/26/2017)
Set Deadline as to 69 MOTION to Compel RESPONSES TO INTERROGATORIES AND PRODUCTION OF DOCUMENTS AND ELECTRONICALLY STORED INFORMATION. (Internal deadline for referral to judge if response not filed earlier: 10/10/2017). (vkm) (Entered: 09/27/2017)
70 ORDER DIRECTING EXPEDITED RESPONSE AND SUBSTITUTING DEFENDANT'S SUCCESSOR re 69 MOTION to Compel RESPONSES TO INTERROGATORIES AND PRODUCTION OF DOCUMENTS AND ELECTRONICALLY STORED INFORMATION − Response to motion due by by 10/4/2017. Additionally, this Court treats Plaintiffs footnote 1 in the Motion to Compel, see ECF No. 69 at 1, as a motion to substitute former Chief Financial Officer Jeff Atwater with Chief Financial Officer Jimmy Patronis. This Court treats this motion as unopposed. It is accordingly GRANTED. Signed by JUDGE MARK E WALKER on 9/27/2017. (vkm) (Entered: 09/28/2017)

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71 NOTICE of Exhibits F, G and H for DE 69 Motion to Compel, Refiled Due to Size Limitations by VIRGINIA KAY ATKINS, WILLIAM BASS, JAMES LARRY EXLINE, JOSEPH JAMES GALASSO, HAROLD W GIRCSIS, JR, YRAIDA LEONIDES GUANIPA, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, CHRISTOPHER MICHAEL SMITH re 69 MOTION to Compel RESPONSES TO INTERROGATORIES AND PRODUCTION OF DOCUMENTS AND ELECTRONICALLY STORED INFORMATION (Attachments: # 1 Exhibit Exhibit G for No. 69 Motion to Compel (Refiled Due to Size Limitation), # 2 Exhibit Exhibit H for No. 69 Motion to Compel (Refiled Due to Size Limitation)) (SHERMAN, JONATHAN) (Entered: 09/28/2017)
72 NOTICE of Refiled Exhibits F, G and H for DE 69 Motion to Compel (Refiled With Blank Last Page Due to CM ECF Error with Last Exhibit Page) by VIRGINIA KAY ATKINS, WILLIAM BASS, JAMES LARRY EXLINE, JOSEPH JAMES GALASSO, HAROLD W GIRCSIS, JR, YRAIDA LEONIDES GUANIPA, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, CHRISTOPHER MICHAEL SMITH re 69 MOTION to Compel RESPONSES TO INTERROGATORIES AND PRODUCTION OF DOCUMENTS AND ELECTRONICALLY STORED INFORMATION (Attachments: # 1 Exhibit Exhibit G for DE 69 Motion to Compel (Refiled With Blank Last Page Due to CM ECF Error with Last Exhibit Page), # 2 Exhibit Exhibit H for DE 69 Motion to Compel (Refiled With Blank Last Page Due to CM ECF Error with Last Exhibit Page)) (SHERMAN, JONATHAN) (Entered: 09/28/2017)
73 UNOPPOSED MOTION for Extension of Time to File Answer re 29 Amended Complaint, by PAM BONDI, JIMMY PATRONIS, ADAM H PUTNAM, RICK SCOTT. (NEFF, LANCE) Modified on 10/4/2017 to reflect unopposed motion (vkm). (Entered: 10/03/2017)
74 RESPONSE in Opposition re 69 MOTION to Compel RESPONSES TO INTERROGATORIES AND PRODUCTION OF DOCUMENTS AND ELECTRONICALLY STORED INFORMATION filed by PAM BONDI, JIMMY PATRONIS, ADAM H PUTNAM, RICK SCOTT. (NEFF, LANCE) (Entered: 10/03/2017)
75 ORDER GRANTING UNOPPOSED 73 MOTION FOR EXTENSION OF TIME TO ANSWER COMPLAINT − Defendants shall file their responsive pleading(s) to the amended complaint on or before 11/2/2017. Signed by JUDGE MARK E WALKER on 10/3/2017. (vkm) (Entered: 10/03/2017)
76 ORDER GRANTING PLAINTIFFS' MOTION TO COMPEL. Signed by JUDGE MARK E WALKER on 10/4/2017. (vkm) (Entered: 10/04/2017)
77 MOTION to Appear Pro Hac Vice by Michelle E. Kanter Cohen.( Filing fee $ 201 receipt number AFLNDC−3990737.) by VIRGINIA KAY ATKINS, WILLIAM BASS, JAMES LARRY EXLINE, JOSEPH JAMES GALASSO, HAROLD W GIRCSIS, JR, YRAIDA LEONIDES GUANIPA, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, CHRISTOPHER MICHAEL SMITH. (Attachments: # 1 Exhibit) (KANTER COHEN, MICHELLE) (Entered: 10/04/2017)
78 ORDER ADMITTING MICHELLE KANTER COHEN PRO HAC VICE − This Court has considered, without hearing, the Motion for Leave to Appear Pro Hac Vice of Michelle E. Kanter Cohen. ECF No. 77 . Ms. Kanter Cohen has fulfilled the requirements of the Local Rules for admission. Accordingly, the motion is GRANTED and Ms. Kanter Cohen is admitted pro hac vice as counsel for Plaintiffs. Signed by JUDGE MARK E WALKER on 10/5/2017. (vkm) (Entered: 10/05/2017)
79 STATUS REPORT JOINT by VIRGINIA KAY ATKINS, WILLIAM BASS, JAMES LARRY EXLINE, JOSEPH JAMES GALASSO, HAROLD W GIRCSIS, JR, YRAIDA LEONIDES GUANIPA, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, CHRISTOPHER MICHAEL SMITH. (SHERMAN, JONATHAN) (Entered: 10/10/2017)
Reset Deadline Re: 21 INITIAL SCHEDULING ORDER: Status Report due by 11/9/2017. (vkm) (Entered: 10/11/2017)

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80 ANSWER to 29 Amended Complaint, by PAM BONDI, JIMMY PATRONIS, ADAM H PUTNAM, RICK SCOTT. (NEFF, LANCE) (Entered: 11/02/2017)
81 MOTION for Leave to File Longer Memorandum in Support of Plaintiffs' Motion for Summary Judgment (Unopposed) by VIRGINIA KAY ATKINS, WILLIAM BASS, JAMES LARRY EXLINE, JOSEPH JAMES GALASSO, HAROLD W GIRCSIS, JR, YRAIDA LEONIDES GUANIPA, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, CHRISTOPHER MICHAEL SMITH. (SHERMAN, JONATHAN) (Entered: 11/07/2017)
82 ORDER GRANTING 81 UNOPPOSED MOTION FOR LEAVE TO EXCEED THE WORD LIMIT. Signed by JUDGE MARK E WALKER on 11/8/17. (ckm) (Entered: 11/08/2017)
83 Joint MOTION to Seal by PAM BONDI, JIMMY PATRONIS, ADAM H PUTNAM, RICK SCOTT. (NEFF, LANCE) (Entered: 11/09/2017)
84 ORDER GRANTING 83 JOINT MOTION TO FILE EXHIBITS UNDER SEAL. Signed by JUDGE MARK E WALKER on 11/9/2017. (vkm) (Entered: 11/09/2017)
85 ***SEE 114 − 134 FOR MOST RECENT CORRECTIONS***NOTICE of Exhibits in Support of Plaintiffs' Motion for Summary Judgment by VIRGINIA KAY ATKINS, WILLIAM BASS, JAMES LARRY EXLINE, JOSEPH JAMES GALASSO, HAROLD W GIRCSIS, JR, YRAIDA LEONIDES GUANIPA, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, CHRISTOPHER MICHAEL SMITH (Attachments: # 1 Exhibit Joint Stipulation Regarding Authenticity and Admissibility of Evidence (Ex. 9), # 2 Exhibit Plaintiff James Michael Hand Affidavit (Ex. 10), # 3 Exhibit Plaintiff Joseph James Galasso Affidavit (Ex. 11), # 4 Exhibit Plaintiff Harold W. Gircsis, Jr. Affidavit (Ex. 12), # 5 Exhibit Plaintiff Christopher Michael Smith Affidavit (Ex. 13), # 6 Exhibit Plaintiff William Bass Affidavit (Ex. 14), # 7 Exhibit Plaintiff Jermaine Johnekins Affidavit (Ex. 15), # 8 Exhibit Plaintiff Virginia Kay Atkins Affidavit (Ex. 16), # 9 Exhibit Plaintiff James Larry Exline Affidavit (Ex. 17), # 10 Exhibit Plaintiff Yraida Leonides Guanipa Affidavit (Ex. 18), # 11 Exhibit Executive Clemency Board (hereinafter ECB) Defendants Responses to Plaintiffs First Set of Interrogatories (Ex. 19), # 12 Exhibit ECB Defendants Responses to Plaintiffs First Set of Requests for Production (Ex. 20), # 13 Exhibit Secretary of Corrections Joness Response to Plaintiffs First Set of Interrogatories (Ex. 21), # 14 Exhibit Secretary of Corrections Joness Response to Plaintiffs First Set of Requests for Production (Ex. 22), # 15 Exhibit Historical and Current Versions of Florida Rules of Executive Clemency (Ex. 23), # 16 Exhibit Florida Commission on Offender Review Defendants Response to First Set of Requests for Production (Ex. 24), # 17 Exhibit Florida Commission on Offender Review Defendants Response to Plaintiffs First Set, Request for Production No. 2, Application for Clemency (Current) (Ex. 25), # 18 Exhibit Florida Commission on Offender Review Defendants Response to Plaintiffs First Set, Request for Production No. 2, Application for Clemency (Previous) (Ex. 26)) (SHERMAN, JONATHAN) Modified on 11/17/2017 to reference recent corrections (vkm). (Entered: 11/12/2017)
86 ***SEE 114 − 134 FOR MOST RECENT CORRECTIONS***NOTICE of Exhibits in Support of Plaintiffs' Motion for Summary Judgment by VIRGINIA KAY ATKINS, WILLIAM BASS, JAMES LARRY EXLINE, JOSEPH JAMES GALASSO, HAROLD W GIRCSIS, JR, YRAIDA LEONIDES GUANIPA, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, CHRISTOPHER MICHAEL SMITH (Attachments: # 1 Exhibit Florida Commission on Offender Review Annual Report 2010−2011 (Ex. 27), # 2 Exhibit Florida Commission on Offender Review Annual Report 2011−2012 (Ex. 28), # 3 Exhibit Florida Commission on Offender Review Annual Report 2013 (Ex. 29), # 4 Exhibit Florida Commission on Offender Review Annual Report 2014 (Ex. 30), # 5 Exhibit Florida Commission on Offender Review Annual Report 2015 (Ex. 31), # 6 Exhibit Florida Commission on Offender Review Annual Report 2016 (Ex. 32), # 7 Exhibit ECB Defendants Response to Plaintiffs First Set, Request for Production No. 6 Restoration of Civil Rights Application Disqualification Chart (2013−2017) (Ex. 33), # 8 Exhibit ECB Defendants Response to Plaintiffs First Set, Request for Production No. 7 Communications and Executive Orders re: Under Advisement Cases (Ex. 34), # 9 Exhibit ECB Defendants Response to Plaintiffs First Set, Interrogatory No. 1 (Ex. 35), # 10 Exhibit ECB Defendants Response to Plaintiffs First Set, Interrogatory No. 2 (Ex. 36), # 11 Exhibit ECB

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Defendants Response to Plaintiffs First Set, Interrogatory No. 3 (Ex. 37), # 12 Exhibit ECB Defendants Response to Plaintiffs First Set, Interrogatory No. 4 (Ex. 38), # 13 Exhibit ECB Defendants Response to Plaintiffs First Set, Interrogatory No. 5 (Ex. 39), # 14 Exhibit ECB Defendants Response to Plaintiffs First Set, Interrogatory No. 7 (Ex. 40), # 15 Exhibit Secretary of Corrections Joness Response to Plaintiffs Second Set, Request for Production No. 1 (Ex. 41), # 16 Exhibit Florida Department of Corrections Annual Report 2013−14 (Ex. 42)) (SHERMAN, JONATHAN) Modified on 11/17/2017 to reference recent corrections (vkm). (Entered: 11/12/2017)
87 ***SEE 114 − 134 FOR MOST RECENT CORRECTIONS***NOTICE of Exhibits in Support of Plaintiffs' Motion for Summary Judgment by VIRGINIA KAY ATKINS, WILLIAM BASS, JAMES LARRY EXLINE, JOSEPH JAMES GALASSO, HAROLD W GIRCSIS, JR, YRAIDA LEONIDES GUANIPA, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, CHRISTOPHER MICHAEL SMITH (Attachments: # 1 Exhibit Florida Department of Corrections Annual Report 2014−15 (Ex. 43), # 2 Exhibit Florida Department of Corrections Annual Report 2015−16 (Ex. 44), # 3 Exhibit ECB Defendants Response to Plaintiffs Third Set of Interrogatories and Requests for Production (Ex. 45), # 4 Exhibit Certified Report of Paul Antoine Criminal Records from Miami−Dade County (Ex. 46)) (SHERMAN, JONATHAN) Modified on 11/17/2017 to reference recent corrections (vkm). (Entered: 11/12/2017)
88 ***SEE 114 − 134 FOR MOST RECENT CORRECTIONS***NOTICE of Exhibits in Support of Plaintiffs' Motion for Summary Judgment by VIRGINIA KAY ATKINS, WILLIAM BASS, JAMES LARRY EXLINE, JOSEPH JAMES GALASSO, HAROLD W GIRCSIS, JR, YRAIDA LEONIDES GUANIPA, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, CHRISTOPHER MICHAEL SMITH (Attachments: # 1 Exhibit Certified Copies of Kevin Michael Grenier Criminal Records from Brevard County (Ex. 47), # 2 Exhibit 1997 ECB Annotated Agendas (Ex. 48), # 3 Exhibit 1998 ECB Annotated Agendas (Ex. 49), # 4 Exhibit 1999 ECB Annotated Agendas (Ex. 50), # 5 Exhibit 2000 ECB Annotated Agendas (Ex. 51), # 6 Exhibit 2001 ECB Annotated Agendas (Ex. 52), # 7 Exhibit 2002 ECB Annotated Agendas (Ex. 53), # 8 Exhibit 2003 ECB Annotated Agendas (Ex. 54), # 9 Exhibit 2004 ECB Annotated Agendas (Ex. 55), # 10 Exhibit 2005 ECB Annotated Agendas (Ex. 56)) (SHERMAN, JONATHAN) Modified on 11/17/2017 to reference recent corrections (vkm). (Entered: 11/12/2017)
89 ***SEE 114 − 134 FOR MOST RECENT CORRECTIONS***NOTICE of Exhibits in Support of Plaintiffs' Motion for Summary Judgment by VIRGINIA KAY ATKINS, WILLIAM BASS, JAMES LARRY EXLINE, JOSEPH JAMES GALASSO, HAROLD W GIRCSIS, JR, YRAIDA LEONIDES GUANIPA, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, CHRISTOPHER MICHAEL SMITH (Attachments: # 1 Exhibit 2006 ECB Annotated Agendas (Ex. 57), # 2 Exhibit 2007 ECB Annotated Agendas (Ex. 58), # 3 Exhibit 2008 ECB Annotated Agendas (Ex. 59), # 4 Exhibit 2009 ECB Annotated Agendas (Ex. 60), # 5 Exhibit 2010 ECB Annotated Agendas (Ex. 61), # 6 Exhibit 2011 ECB Annotated Agendas (Ex. 62), # 7 Exhibit 2012 ECB Annotated Agendas (Ex. 63), # 8 Exhibit 2013 ECB Annotated Agendas (Ex. 64), # 9 Exhibit 2014 ECB Annotated Agendas (Ex. 65), # 10 Exhibit 2015 ECB Annotated Agendas (Ex. 66), # 11 Exhibit 2016 ECB Annotated Agendas (Ex. 67), # 12 Exhibit 2017 ECB Annotated Agendas (through June 2017 ECB hearing) (Ex. 68), # 13 Exhibit ECB Hearing Transcript (Jan. 7, 1997) (Ex. 69), # 14 Exhibit ECB Hearing Transcript (Mar. 13, 1997) (Ex. 70), # 15 Exhibit ECB Hearing Transcript (June 11, 1997) (Ex. 71), # 16 Exhibit ECB Hearing Transcript (Sept. 10, 1997) (Ex. 72)) (SHERMAN, JONATHAN) Modified on 11/17/2017 to reference recent corrections (vkm). (Entered: 11/12/2017)
90 ***SEE 114 − 134 FOR MOST RECENT CORRECTIONS***NOTICE of Exhibits in Support of Plaintiffs' Motion for Summary Judgment by VIRGINIA KAY ATKINS, WILLIAM BASS, JAMES LARRY EXLINE, JOSEPH JAMES GALASSO, HAROLD W GIRCSIS, JR, YRAIDA LEONIDES GUANIPA, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, CHRISTOPHER MICHAEL SMITH (Attachments: # 1 Exhibit ECB Hearing Transcript (Dec. 3, 1997) (Ex. 73), # 2 Exhibit ECB Hearing Transcript (Mar. 12, 1998) (Ex. 74), # 3 Exhibit ECB Hearing Transcript (June 11, 1998) (Ex. 75), # 4 Exhibit ECB Hearing Transcript (Sept. 17, 1998) (Ex. 76), # 5 Exhibit ECB Hearing Transcript (Dec. 10, 1998 Vol. 1) (Ex. 77)) (SHERMAN, JONATHAN) Modified on 11/17/2017 to reference recent corrections

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(vkm). (Entered: 11/12/2017)
91 ***SEE 114 − 134 FOR MOST RECENT CORRECTIONS***NOTICE of Exhibits in Support of Plaintiffs' Motion for Summary Judgment by VIRGINIA KAY ATKINS, WILLIAM BASS, JAMES LARRY EXLINE, JOSEPH JAMES GALASSO, HAROLD W GIRCSIS, JR, YRAIDA LEONIDES GUANIPA, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, CHRISTOPHER MICHAEL SMITH (Attachments: # 1 Exhibit ECB Hearing Transcript (Dec. 10, 1998 Vol. 2) (Ex. 78), # 2 Exhibit ECB Hearing Transcript (Mar. 11, 1999) (Ex. 79), # 3 Exhibit ECB Hearing Transcript (June 10, 1999) (Ex. 80), # 4 Exhibit ECB Hearing Transcript (Oct. 28, 1999) (Ex. 81), # 5 Exhibit ECB Hearing Transcript (Dec. 9, 1999) (Ex. 82), # 6 Exhibit ECB Hearing Transcript (Feb. 17, 2000) (Ex. 83)) (SHERMAN, JONATHAN) Modified on 11/17/2017 to reference recent corrections (vkm). (Entered: 11/12/2017)
92 ***SEE 114 − 134 FOR MOST RECENT CORRECTIONS***NOTICE of Exhibits in Support of Plaintiffs' Motion for Summary Judgment by VIRGINIA KAY ATKINS, WILLIAM BASS, JAMES LARRY EXLINE, JOSEPH JAMES GALASSO, HAROLD W GIRCSIS, JR, YRAIDA LEONIDES GUANIPA, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, CHRISTOPHER MICHAEL SMITH (Attachments: # 1 Exhibit ECB Hearing Transcript (June 15, 2000) (Ex. 84), # 2 Exhibit ECB Hearing Transcript (Sept. 14, 2000) (Ex. 85), # 3 Exhibit ECB Hearing Transcript (Dec. 14, 2000) (Ex. 86), # 4 Exhibit ECB Hearing Transcript (Feb. 22, 2001) (Ex. 87), # 5 Exhibit ECB Hearing Transcript (June 14, 2001) (Ex. 88), # 6 Exhibit ECB Hearing Transcript (Sept. 13, 2001) (Ex. 89)) (SHERMAN, JONATHAN) Modified on 11/17/2017 to reference recent corrections (vkm). (Entered: 11/12/2017)
93 ***SEE 114 − 134 FOR MOST RECENT CORRECTIONS***NOTICE of Exhibits in Support of Plaintiffs' Motion for Summary Judgment by VIRGINIA KAY ATKINS, WILLIAM BASS, JAMES LARRY EXLINE, JOSEPH JAMES GALASSO, HAROLD W GIRCSIS, JR, YRAIDA LEONIDES GUANIPA, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, CHRISTOPHER MICHAEL SMITH (Attachments: # 1 Exhibit ECB Hearing Transcript (Dec. 13, 2001) (Ex. 90), # 2 Exhibit ECB Hearing Transcript (Feb. 21, 2002) (Ex. 91), # 3 Exhibit ECB Hearing Transcript (June 13, 2002) (Ex. 92), # 4 Exhibit ECB Hearing Transcript (Sept. 26, 2002) (Ex. 93), # 5 Exhibit ECB Hearing Transcript (Dec. 12, 2002) (Ex. 94), # 6 Exhibit ECB Hearing Transcript (Mar. 27, 2003) (Ex. 95)) (SHERMAN, JONATHAN) Modified on 11/17/2017 to reference recent corrections (vkm). (Entered: 11/12/2017)
94 ***SEE 114 − 134 FOR MOST RECENT CORRECTIONS***NOTICE of Exhibits in Support of Plaintiffs' Motion for Summary Judgment by VIRGINIA KAY ATKINS, WILLIAM BASS, JAMES LARRY EXLINE, JOSEPH JAMES GALASSO, HAROLD W GIRCSIS, JR, YRAIDA LEONIDES GUANIPA, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, CHRISTOPHER MICHAEL SMITH (Attachments: # 1 Exhibit ECB Hearing Transcript (June 20, 2003) (Ex. 96), # 2 Exhibit ECB Hearing Transcript (Sept. 25, 2003) (Ex. 97), # 3 Exhibit ECB Hearing Transcript (Dec. 11, 2003) (Ex. 98), # 4 Exhibit ECB Hearing Transcript (Mar. 18, 2004) (Ex. 99), # 5 Exhibit ECB Hearing Transcript (June 17, 2004) (Ex. 100), # 6 Exhibit ECB Hearing Transcript (Sept. 23, 2004) (Ex. 101)) (SHERMAN, JONATHAN) Modified on 11/17/2017 to reference recent corrections (vkm). (Entered: 11/12/2017)
95 ***SEE 114 − 134 FOR MOST RECENT CORRECTIONS***NOTICE of Exhibits in Support of Plaintiffs' Motion for Summary Judgment by VIRGINIA KAY ATKINS, WILLIAM BASS, JAMES LARRY EXLINE, JOSEPH JAMES GALASSO, HAROLD W GIRCSIS, JR, YRAIDA LEONIDES GUANIPA, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, CHRISTOPHER MICHAEL SMITH (Attachments: # 1 Exhibit ECB Hearing Transcript (Dec. 9, 2004) (Ex. 102), # 2 Exhibit ECB Hearing Transcript (Mar. 3, 2005) (Ex. 103), # 3 Exhibit ECB Hearing Transcript (June 23, 2005) (Ex. 104), # 4 Exhibit ECB Hearing Transcript (Sept. 8, 2005) (Ex. 105), # 5 Exhibit ECB Hearing Transcript (Dec. 6, 2005) (Ex. 106)) (SHERMAN, JONATHAN) Modified on 11/17/2017 to reference recent corrections (vkm). (Entered: 11/12/2017)

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96 ***SEE 114 − 134 FOR MOST RECENT CORRECTIONS***NOTICE of Exhibits in Support of Plaintiffs' Motion for Summary Judgment by VIRGINIA KAY ATKINS, WILLIAM BASS, JAMES LARRY EXLINE, JOSEPH JAMES GALASSO, HAROLD W GIRCSIS, JR, YRAIDA LEONIDES GUANIPA, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, CHRISTOPHER MICHAEL SMITH (Attachments: # 1 Exhibit ECB Hearing Transcript (Mar. 2, 2006 Vol. 1) (Ex. 107), # 2 Exhibit ECB Hearing Transcript (Mar. 2, 2006 Vol. 2) (Ex. 108), # 3 Exhibit ECB Hearing Transcript (June 15, 2006) (Ex. 109), # 4 Exhibit ECB Hearing Transcript (Sept. 21, 2006) (Ex. 110)) (SHERMAN, JONATHAN) Modified on 11/17/2017 to reference recent corrections (vkm). (Entered: 11/12/2017)
97 ***SEE 114 − 134 FOR MOST RECENT CORRECTIONS***NOTICE of Exhibits in Support of Plaintiffs' Motion for Summary Judgment by VIRGINIA KAY ATKINS, WILLIAM BASS, JAMES LARRY EXLINE, JOSEPH JAMES GALASSO, HAROLD W GIRCSIS, JR, YRAIDA LEONIDES GUANIPA, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, CHRISTOPHER MICHAEL SMITH (Attachments: # 1 Exhibit ECB Hearing Transcript (Dec. 7, 2006) (Ex. 111), # 2 Exhibit ECB Hearing Transcript (Mar. 1, 2007) (Ex. 112), # 3 Exhibit ECB Hearing Transcript (June 14, 2007) (Ex. 114), # 4 Exhibit ECB Hearing Transcript (Sept. 20, 2007) (Ex. 115)) (SHERMAN, JONATHAN) Modified on 11/17/2017 to reference recent corrections (vkm). (Entered: 11/12/2017)
98 REQUEST FOR JUDICIAL NOTICE OF DE 87 −4 AND DE 88 −1 (CERTIFIED CRIMINAL RECORDS) by VIRGINIA KAY ATKINS, WILLIAM BASS, JAMES LARRY EXLINE, JOSEPH JAMES GALASSO, HAROLD W GIRCSIS, JR, YRAIDA LEONIDES GUANIPA, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, CHRISTOPHER MICHAEL SMITH. (SHERMAN, JONATHAN) Modified on 11/14/2017 to add document relationship (vkm). (Entered: 11/13/2017)
99 REQUEST FOR JUDICIAL NOTICE OF FLORIDA CONSTITUTION REVISION COMMISSION VIDEO RECORDING by VIRGINIA KAY ATKINS, WILLIAM BASS, JAMES LARRY EXLINE, JOSEPH JAMES GALASSO, HAROLD W GIRCSIS, JR, YRAIDA LEONIDES GUANIPA, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, CHRISTOPHER MICHAEL SMITH. (SHERMAN, JONATHAN) (Entered: 11/13/2017)
100 DOCKET ANNOTATION BY COURT: Re 85 NOTICE of Exhibits in Support of Plaintiffs' Motion for Summary Judgment − 1 DISC CONTAINING SEALED EXHIBITS 1−8 RECEIVED. (vkm) (Entered: 11/13/2017)
101 DOCKET ANNOTATION BY COURT: Re 85 NOTICE of Exhibits in Support of Plaintiffs' Motion for Summary Judgment − EXHIBITS 113 AND 116 − 177 RECEIVED ON INDIVIDUAL DISCS. (vkm) (Entered: 11/13/2017)
102 MOTION for Summary Judgment (REDACTED VERSION) by VIRGINIA KAY ATKINS, WILLIAM BASS, JAMES LARRY EXLINE, JOSEPH JAMES GALASSO, HAROLD W GIRCSIS, JR, YRAIDA LEONIDES GUANIPA, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, CHRISTOPHER MICHAEL SMITH. (Internal deadline for referral to judge if response to summary judgment not filed earlier: 12/4/2017). (SHERMAN, JONATHAN) (Entered: 11/13/2017)
103 MOTION for Summary Judgment by PAM BONDI, JIMMY PATRONIS, ADAM H PUTNAM, RICK SCOTT. (Internal deadline for referral to judge if response to summary judgment not filed earlier: 12/4/2017). (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit − STRICKEN PER 113 ORDER, # 5 Exhibit − STRICKEN PER 113 ORDER, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit − STRICKEN PER 113 ORDER, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit, # 15 Exhibit, # 16 Exhibit, # 17 Exhibit, # 18 Exhibit, # 19 Exhibit, # 20 Exhibit) (AGARWAL, AMIT) Modified on 11/16/2017 to reflect stricken exhibits (vkm). (Entered: 11/13/2017)
104 MOTION to Certify Class by VIRGINIA KAY ATKINS, WILLIAM BASS, JAMES LARRY EXLINE, JOSEPH JAMES GALASSO, HAROLD W GIRCSIS, JR, YRAIDA LEONIDES GUANIPA, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, CHRISTOPHER MICHAEL SMITH. (Internal deadline for referral to judge if response not filed earlier: 11/27/2017). (Attachments: # 1 Exhibit Exhibit A − Cohen Milstein Sellers & Toll PLLC Firm Resume) (SHERMAN, JONATHAN)

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(Entered: 11/13/2017)
105 ***SEE 107 FOR MOST RECENT CORRECTION***NOTICE of Re−Filing Exhibits by PAM BONDI, JIMMY PATRONIS, ADAM H PUTNAM, RICK SCOTT (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit) (PRATT, JORDAN) Modified on 11/17/2017 to refer to recent correction (vkm). (Entered: 11/14/2017)
106 ***SEE 107 FOR MOST RECENT CORRECTION***NOTICE of Re−Filing Exhibits by PAM BONDI, JIMMY PATRONIS, ADAM H PUTNAM, RICK SCOTT (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit) (PRATT, JORDAN) Modified on 11/17/2017 to refer to recent correction (vkm). (Entered: 11/14/2017)
108 DEFENDANTS' EXHIBITS M − T TO 103 MOTION FOR SUMMARY JUDGMENT (Attachments: # 1 Exhibit N, # 2 Exhibit O, # 3 Exhibit P, # 4 Exhibit Q, # 5 Exhibit R, # 6 Exhibit S, # 7 Exhibit T) (vkm) (Entered: 11/15/2017)
109 DOCKET ANNOTATION BY COURT: Re 108 − 1 DISC RECEIVED CONTAINING DEFENDANT'S SEALED EXHIBITS M − T (vkm) (Entered: 11/15/2017)
107 Third NOTICE of Re−Filing Exhibits by PAM BONDI, MELINDA N COONROD, RICHARD D DAVISON, KEN DETZNER, JULIE L JONES, JULIA MCCALL, JIMMY PATRONIS, ADAM H PUTNAM, RICK SCOTT, DAVID A WYANT re 106 Notice (Attachments: # 1 Defendant's Exhibit J, # 2 Defendant's Exhibit K, # 3 Defendant's Exhibit L) (pll) (Entered: 11/15/2017)
110 MOTION to Strike 103 MOTION for Summary Judgment Exhibits and Substitute with Redacted Versions by PAM BONDI, JIMMY PATRONIS, ADAM H PUTNAM, RICK SCOTT. (Internal deadline for referral to judge if response not filed earlier: 11/30/2017). (Attachments: # 1 Affidavit Redacted Smith Affidavit, # 2 Affidavit Redacted Bass Affidavit, # 3 Affidavit Redacted Exline Affidavit) (NEFF, LANCE) (Entered: 11/16/2017)
111 NOTICE of Filing Exhibits Under Seal by PAM BONDI, JIMMY PATRONIS, ADAM H PUTNAM, RICK SCOTT re 103 MOTION for Summary Judgment (NEFF, LANCE) (Entered: 11/16/2017)
112 ***SEE 114 − 134 FOR MOST RECENT CORRECTIONS***NOTICE of Refiling of Exhibits in Support of Plaintiffs' Motion for Summary Judgment by VIRGINIA KAY ATKINS, WILLIAM BASS, JAMES LARRY EXLINE, JOSEPH JAMES GALASSO, HAROLD W GIRCSIS, JR, YRAIDA LEONIDES GUANIPA, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, CHRISTOPHER MICHAEL SMITH (Attachments: # 1 Exhibit DE 85−15: Historical and Current Versions of Florida Rules of Executive Clemency (Ex. 23), # 2 Exhibit DE 86−3: Florida Commission on Offender Review Annual Report 2013 (Ex. 29), # 3 Exhibit DE 86−4: Florida Commission on Offender Review Annual Report 2014 (Ex. 30), # 4 Exhibit DE 86−5: Florida Commission on Offender Review Annual Report 2015 (Ex. 31), # 5 Exhibit DE 86−6: Florida Commission on Offender Review Annual Report 2016 (Ex. 32), # 6 Exhibit DE 86−7: ECB Defendants Response to Plaintiffs First Set, Request for Production No. 6 Restoration of Civil Rights Application Disqualification Chart (2013−2017) (Ex. 33), # 7 Exhibit DE 86−8: ECB Defendants Response to Plaintiffs First Set, Request for Production No. 7 Communications and Executive Orders re: Under Advisement Cases (Ex. 34), # 8 Exhibit DE 86−9: ECB Defendants Response to Plaintiffs First Set, Interrogatory No. 1 (Ex. 35), # 9 Exhibit DE 86−10: ECB Defendants Response to Plaintiffs First Set, Interrogatory No. 2 (Ex. 36), # 10 Exhibit DE 86−11: ECB Defendants Response to Plaintiffs First Set, Interrogatory No. 3 (Ex. 37), # 11 Exhibit DE 86−12: ECB Defendants Response to Plaintiffs First Set, Interrogatory No. 4 (Ex. 38), # 12 Exhibit DE 86−13: ECB Defendants Response to Plaintiffs First Set, Interrogatory No. 5 (Ex. 39), # 13 Exhibit DE 86−14: ECB Defendants Response to Plaintiffs First Set, Interrogatory No. 7 (Ex. 40)) (SHERMAN, JONATHAN) Modified on 11/17/2017 to reference recent corrections (vkm). (Entered: 11/16/2017)
113 ORDER GRANTING 110 MOTION TO STRIKE EXHIBITS AND SUBSTITUTE WITH REDACTED VERSIONS − Exhibits Nos. 103 −4, 103 −5, and 103 −8 are stricken from ECF No. 103 and the redacted versions of the exhibits attached to the motion are accepted as filed. The substituted exhibits shall now be cited as ECF Nos.

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110 −1, 110 −2, and 110 −3 respectively. Signed by JUDGE MARK E WALKER on 11/16/2017. (vkm) (Entered: 11/16/2017)
114 NOTICE of Refiling of Exhibits in Support of Plaintiffs' Motion for Summary Judgment by VIRGINIA KAY ATKINS, WILLIAM BASS, JAMES LARRY EXLINE, JOSEPH JAMES GALASSO, HAROLD W GIRCSIS, JR, YRAIDA LEONIDES GUANIPA, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, CHRISTOPHER MICHAEL SMITH (Attachments: # 1 Exhibit DE 85−15: Historical and Current Versions of Florida Rules of Executive Clemency (Ex. 23), # 2 Exhibit DE 86−3: Florida Commission on Offender Review Annual Report 2013 (Ex. 29), # 3 Exhibit DE 86−4: Florida Commission on Offender Review Annual Report 2014 (Ex. 30), # 4 Exhibit DE 86−5: Florida Commission on Offender Review Annual Report 2015 (Ex. 31), # 5 Exhibit DE 86−6: Florida Commission on Offender Review Annual Report 2016 (Ex. 32)) (SHERMAN, JONATHAN) (Entered: 11/16/2017)
115 NOTICE OF REFILING OF EXHIBITS IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT by VIRGINIA KAY ATKINS, WILLIAM BASS, JAMES LARRY EXLINE, JOSEPH JAMES GALASSO, HAROLD W GIRCSIS, JR, YRAIDA LEONIDES GUANIPA, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, CHRISTOPHER MICHAEL SMITH (Attachments: # 1 Exhibit DE 86−7: ECB Defendants Response to First Set, RFP No. 6 Restoration Application Disqualification Chart (Ex.33), # 2 Exhibit DE 86−8: ECB Defendants Response to Plaintiffs First Set, RFP No. 7 Communications and Executive Orders re: Under Advisement Cases (Ex. 34), # 3 Exhibit DE 86−9: ECB Defendants Response to Plaintiffs First Set, Interrogatory No. 1 (Ex. 35), # 4 Exhibit DE 86−10: ECB Defendants Response to Plaintiffs First Set, Interrogatory No. 2 (Ex. 36), # 5 Exhibit DE 86−11: ECB Defendants Response to Plaintiffs First Set, Interrogatory No. 3 (Ex. 37), # 6 Exhibit DE 86−12: ECB Defendants Response to Plaintiffs First Set, Interrogatory No. 4 (Ex. 38), # 7 Exhibit DE 86−13: ECB Defendants Response to Plaintiffs First Set, Interrogatory No. 5 (Ex. 39), # 8 Exhibit DE 86−14: ECB Defendants Response to Plaintiffs First Set, Interrogatory No. 7 (Ex. 40), # 9 Exhibit DE 86−15: Secretary of Corrections Joness Response to Plaintiffs Second Set, Request for Production No. 1 (Ex. 41), # 10 Exhibit DE 86−16: Florida Department of Corrections Annual Report 2013−14 (Ex. 42), # 11 Exhibit DE 87−1: Florida Department of Corrections Annual Report 2014−15 (Ex. 43), # 12 Exhibit DE 87−2: Florida Department of Corrections Annual Report 2015−16 (Ex. 44)) (SHERMAN, JONATHAN) (Entered: 11/16/2017)
116 NOTICE OF REFILING OF EXHIBITS IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT by VIRGINIA KAY ATKINS, WILLIAM BASS, JAMES LARRY EXLINE, JOSEPH JAMES GALASSO, HAROLD W GIRCSIS, JR, YRAIDA LEONIDES GUANIPA, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, CHRISTOPHER MICHAEL SMITH (Attachments: # 1 Exhibit DE 87−3: ECB Defendants Response to Plaintiffs Third Set of Interrogatories and Requests for Production (Ex. 45), # 2 Exhibit DE 87−4: Certified Report of Paul Antoine Criminal Records from Miami−Dade County (Ex. 46), # 3 Exhibit DE 88−1: Certified Copies of Kevin Michael Grenier Criminal Records from Brevard County (Ex. 47), # 4 Exhibit DE 88−2: 1997 ECB Annotated Agendas (Ex. 48), # 5 Exhibit DE 88−3: 1998 ECB Annotated Agendas (Ex. 49), # 6 Exhibit DE 88−4: 1999 ECB Annotated Agendas (Ex. 50)) (SHERMAN, JONATHAN) (Entered: 11/16/2017)
117 NOTICE OF REFILING OF EXHIBITS IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT by VIRGINIA KAY ATKINS, WILLIAM BASS, JAMES LARRY EXLINE, JOSEPH JAMES GALASSO, HAROLD W GIRCSIS, JR, YRAIDA LEONIDES GUANIPA, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, CHRISTOPHER MICHAEL SMITH (Attachments: # 1 Exhibit DE 88−5: 2000 ECB Annotated Agendas (Ex. 51), # 2 Exhibit DE 88−6: 2001 ECB Annotated Agendas (Ex. 52), # 3 Exhibit DE 88−7: 2002 ECB Annotated Agendas (Ex. 53), # 4 Exhibit DE 88−8: 2003 ECB Annotated Agendas (Ex. 54), # 5 Exhibit DE 88−9: 2004 ECB Annotated Agendas (Ex. 55), # 6 Exhibit DE 88−10: 2005 ECB Annotated Agendas (Ex. 56), # 7 Exhibit DE 89−1: 2006 ECB Annotated Agendas (Ex. 57), # 8 Exhibit DE 89−2: 2007 ECB Annotated Agendas (Ex. 58), # 9 Exhibit DE 89−3: 2008 ECB Annotated Agendas (Ex. 59), # 10 Exhibit DE 89−4: 2009 ECB Annotated Agendas (Ex. 60), # 11 Exhibit DE 89−5: 2010 ECB Annotated Agendas (Ex. 61), # 12 Exhibit DE 89−6: 2011 ECB Annotated Agendas (Ex. 62), # 13 Exhibit

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DE 89−7: 2012 ECB Annotated Agendas (Ex. 63), # 14 Exhibit DE 89−8: 2013 ECB Annotated Agendas (Ex. 64)) (SHERMAN, JONATHAN) (Entered: 11/16/2017)
118 NOTICE OF REFILING OF EXHIBITS IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT by VIRGINIA KAY ATKINS, WILLIAM BASS, JAMES LARRY EXLINE, JOSEPH JAMES GALASSO, HAROLD W GIRCSIS, JR, YRAIDA LEONIDES GUANIPA, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, CHRISTOPHER MICHAEL SMITH (Attachments: # 1 Exhibit DE 89−9: 2014 ECB Annotated Agendas (Ex. 65), # 2 Exhibit DE 89−10: 2015 ECB Annotated Agendas (Ex. 66), # 3 Exhibit DE 89−11: 2016 ECB Annotated Agendas (Ex. 67), # 4 Exhibit DE 89−12: 2017 ECB Annotated Agendas (through June 2017 ECB hearing) (Ex. 68), # 5 Exhibit DE 89−13: ECB Hearing Transcript (Jan. 7, 1997) (Ex. 69), # 6 Exhibit DE 89−14: ECB Hearing Transcript (Mar. 13, 1997) (Ex. 70)) (SHERMAN, JONATHAN) (Entered: 11/16/2017)
119 NOTICE OF REFILING OF EXHIBITS IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT by VIRGINIA KAY ATKINS, WILLIAM BASS, JAMES LARRY EXLINE, JOSEPH JAMES GALASSO, HAROLD W GIRCSIS, JR, YRAIDA LEONIDES GUANIPA, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, CHRISTOPHER MICHAEL SMITH (Attachments: # 1 Exhibit DE 89−15: ECB Hearing Transcript (June 11, 1997) (Ex. 71), # 2 Exhibit DE 89−16: ECB Hearing Transcript (Sept. 10, 1997) (Ex. 72), # 3 Exhibit DE 90−1: ECB Hearing Transcript (Dec. 3, 1997) (Ex. 73), # 4 Exhibit DE 90−2: ECB Hearing Transcript (Mar. 12, 1998) (Ex. 74)) (SHERMAN, JONATHAN) (Entered: 11/16/2017)
120 NOTICE OF REFILING OF EXHIBITS IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT by VIRGINIA KAY ATKINS, WILLIAM BASS, JAMES LARRY EXLINE, JOSEPH JAMES GALASSO, HAROLD W GIRCSIS, JR, YRAIDA LEONIDES GUANIPA, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, CHRISTOPHER MICHAEL SMITH (Attachments: # 1 Exhibit DE 90−3: ECB Hearing Transcript (June 11, 1998), # 2 Exhibit DE 90−4: ECB Hearing Transcript (Sept. 17, 1998), # 3 Exhibit DE 90−5: ECB Hearing Transcript (Dec. 10, 1998 Vol. 1)) (SHERMAN, JONATHAN) (Entered: 11/16/2017)
121 NOTICE OF REFILING OF EXHIBITS IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT by VIRGINIA KAY ATKINS, WILLIAM BASS, JAMES LARRY EXLINE, JOSEPH JAMES GALASSO, HAROLD W GIRCSIS, JR, YRAIDA LEONIDES GUANIPA, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, CHRISTOPHER MICHAEL SMITH (Attachments: # 1 Exhibit DE 91−1: ECB Hearing Transcript (Dec. 10, 1998 Vol. 2) (Ex. 78), # 2 Exhibit DE 91−2: ECB Hearing Transcript (Mar. 11, 1999) (Ex. 79), # 3 Exhibit DE 91−3: ECB Hearing Transcript (June 10, 1999) (Ex. 80)) (SHERMAN, JONATHAN) (Entered: 11/16/2017)
122 NOTICE OF REFILING OF EXHIBITS IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT by VIRGINIA KAY ATKINS, WILLIAM BASS, JAMES LARRY EXLINE, JOSEPH JAMES GALASSO, HAROLD W GIRCSIS, JR, YRAIDA LEONIDES GUANIPA, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, CHRISTOPHER MICHAEL SMITH (Attachments: # 1 Exhibit DE 91−4: ECB Hearing Transcript (Oct. 28, 1999) (Ex. 81), # 2 Exhibit DE 91−5: ECB Hearing Transcript (Dec. 9, 1999) (Ex. 82), # 3 Exhibit DE 91−6: ECB Hearing Transcript (Feb. 17, 2000) (Ex. 83), # 4 Exhibit DE 92−1: ECB Hearing Transcript (June 15, 2000) (Ex. 84)) (SHERMAN, JONATHAN) (Entered: 11/16/2017)
123 NOTICE OF REFILING OF EXHIBITS IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT by VIRGINIA KAY ATKINS, WILLIAM BASS, JAMES LARRY EXLINE, JOSEPH JAMES GALASSO, HAROLD W GIRCSIS, JR, YRAIDA LEONIDES GUANIPA, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, CHRISTOPHER MICHAEL SMITH (Attachments: # 1 Exhibit DE 92−2: ECB Hearing Transcript (Sept. 14, 2000) (Ex. 85), # 2 Exhibit DE 92−3: ECB Hearing Transcript (Dec. 14, 2000) (Ex. 86), # 3 Exhibit DE 92−4: ECB Hearing Transcript (Feb. 22, 2001) (Ex. 87) (SHERMAN, JONATHAN) (Entered: 11/16/2017)
124 NOTICE OF REFILING OF EXHIBITS IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT by VIRGINIA KAY ATKINS, WILLIAM BASS, JAMES LARRY EXLINE, JOSEPH JAMES GALASSO, HAROLD W GIRCSIS, JR,

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YRAIDA LEONIDES GUANIPA, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, CHRISTOPHER MICHAEL SMITH (Attachments: # 1 Exhibit DE 92−5: ECB Hearing Transcript (June 14, 2001) (Ex. 88), # 2 Exhibit DE 92−6: ECB Hearing Transcript (Sept. 13, 2001) (Ex. 89), # 3 Exhibit DE 93−1: ECB Hearing Transcript (Dec. 13, 2001) (Ex. 90)) (SHERMAN, JONATHAN) (Entered: 11/16/2017)
125 NOTICE OF REFILING OF EXHIBITS IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT by VIRGINIA KAY ATKINS, WILLIAM BASS, JAMES LARRY EXLINE, JOSEPH JAMES GALASSO, HAROLD W GIRCSIS, JR, YRAIDA LEONIDES GUANIPA, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, CHRISTOPHER MICHAEL SMITH (Attachments: # 1 Exhibit DE 93−2: ECB Hearing Transcript (Feb. 21, 2002) (DE 91), # 2 Exhibit DE 93−3: ECB Hearing Transcript (June 13, 2002) (DE 92), # 3 Exhibit DE 93−4: ECB Hearing Transcript (Sept. 26, 2002) (DE 93)) (SHERMAN, JONATHAN) (Entered: 11/16/2017)
126 NOTICE OF REFILING OF EXHIBITS IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT by VIRGINIA KAY ATKINS, WILLIAM BASS, JAMES LARRY EXLINE, JOSEPH JAMES GALASSO, HAROLD W GIRCSIS, JR, YRAIDA LEONIDES GUANIPA, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, CHRISTOPHER MICHAEL SMITH (Attachments: # 1 Exhibit DE 93−5: ECB Hearing Transcript (Dec. 12, 2002) (Ex. 94), # 2 Exhibit DE 93−6: ECB Hearing Transcript (Mar. 27, 2003) (Ex. 95), # 3 Exhibit DE 94−1: ECB Hearing Transcript (June 20, 2003) (Ex. 96)) (SHERMAN, JONATHAN) (Entered: 11/16/2017)
127 NOTICE OF REFILING OF EXHIBITS IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT by VIRGINIA KAY ATKINS, WILLIAM BASS, JAMES LARRY EXLINE, JOSEPH JAMES GALASSO, HAROLD W GIRCSIS, JR, YRAIDA LEONIDES GUANIPA, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, CHRISTOPHER MICHAEL SMITH (Attachments: # 1 Exhibit DE 94−2: ECB Hearing Transcript (Sept. 25, 2003) (Ex. 97), # 2 Exhibit DE 94−3: ECB Hearing Transcript (Dec. 11, 2003) (Ex. 98), # 3 Exhibit DE 94−4: ECB Hearing Transcript (Mar. 18, 2004) (Ex. 99)) (SHERMAN, JONATHAN) (Entered: 11/16/2017)
128 NOTICE OF REFILING OF EXHIBITS IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT by VIRGINIA KAY ATKINS, WILLIAM BASS, JAMES LARRY EXLINE, JOSEPH JAMES GALASSO, HAROLD W GIRCSIS, JR, YRAIDA LEONIDES GUANIPA, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, CHRISTOPHER MICHAEL SMITH (Attachments: # 1 Exhibit DE 94−5: ECB Hearing Transcript (June 17, 2004) (Ex. 100), # 2 Exhibit DE 94−6: ECB Hearing Transcript (Sept. 23, 2004) (Ex. 101), # 3 Exhibit DE 95−1: ECB Hearing Transcript (Dec. 9, 2004) (Ex. 102)) (SHERMAN, JONATHAN) (Entered: 11/16/2017)
129 NOTICE OF REFILING OF EXHIBITS IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT by VIRGINIA KAY ATKINS, WILLIAM BASS, JAMES LARRY EXLINE, JOSEPH JAMES GALASSO, HAROLD W GIRCSIS, JR, YRAIDA LEONIDES GUANIPA, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, CHRISTOPHER MICHAEL SMITH (Attachments: # 1 Exhibit DE 95−2: ECB Hearing Transcript (Mar. 3, 2005) (Ex. 103), # 2 Exhibit DE 95−3: ECB Hearing Transcript (June 23, 2005) (Ex. 104), # 3 Exhibit DE 95−4: ECB Hearing Transcript (Sept. 8, 2005) (Ex. 105)) (SHERMAN, JONATHAN) (Entered: 11/16/2017)
130 NOTICE OF REFILING OF EXHIBITS IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT by VIRGINIA KAY ATKINS, WILLIAM BASS, JAMES LARRY EXLINE, JOSEPH JAMES GALASSO, HAROLD W GIRCSIS, JR, YRAIDA LEONIDES GUANIPA, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, CHRISTOPHER MICHAEL SMITH (Attachments: # 1 Exhibit DE 95−5: ECB Hearing Transcript (Dec. 6, 2005) (Ex. 106), # 2 Exhibit DE 96−1: ECB Hearing Transcript (Mar. 2, 2006 Vol. 1) (Ex. 107)) (SHERMAN, JONATHAN) (Entered: 11/16/2017)

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131 NOTICE OF REFILING OF EXHIBITS IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT by VIRGINIA KAY ATKINS, WILLIAM BASS, JAMES LARRY EXLINE, JOSEPH JAMES GALASSO, HAROLD W GIRCSIS, JR, YRAIDA LEONIDES GUANIPA, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, CHRISTOPHER MICHAEL SMITH (Attachments: # 1 Exhibit DE 96−2: ECB Hearing Transcript (Mar. 2, 2006 Vol. 2) (Ex. 108), # 2 Exhibit DE 96−3: ECB Hearing Transcript (June 15, 2006) (Ex. 109)) (SHERMAN, JONATHAN) (Entered: 11/16/2017)
132 NOTICE OF REFILING OF EXHIBITS IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT by VIRGINIA KAY ATKINS, WILLIAM BASS, JAMES LARRY EXLINE, JOSEPH JAMES GALASSO, HAROLD W GIRCSIS, JR, YRAIDA LEONIDES GUANIPA, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, CHRISTOPHER MICHAEL SMITH (Attachments: # 1 Exhibit DE 96−4: ECB Hearing Transcript (Sept. 21, 2006) (Ex. 110), # 2 Exhibit DE 97−1: ECB Hearing Transcript (Dec. 7, 2006) (Ex. 111)) (SHERMAN, JONATHAN) (Entered: 11/16/2017)
133 NOTICE OF REFILING OF EXHIBITS IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT by VIRGINIA KAY ATKINS, WILLIAM BASS, JAMES LARRY EXLINE, JOSEPH JAMES GALASSO, HAROLD W GIRCSIS, JR, YRAIDA LEONIDES GUANIPA, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, CHRISTOPHER MICHAEL SMITH (Attachments: # 1 Exhibit DE 97−2: ECB Hearing Transcript (Mar. 1, 2007) (Ex. 112), # 2 Exhibit DE 97−3: ECB Hearing Transcript (June 14, 2007) (Ex. 114)) (SHERMAN, JONATHAN) (Entered: 11/16/2017)
134 NOTICE OF REFILING OF EXHIBITS IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT by VIRGINIA KAY ATKINS, WILLIAM BASS, JAMES LARRY EXLINE, JOSEPH JAMES GALASSO, HAROLD W GIRCSIS, JR, YRAIDA LEONIDES GUANIPA, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, CHRISTOPHER MICHAEL SMITH (Attachments: # 1 Exhibit DE 97−4: ECB Hearing Transcript (Sept. 20, 2007) (Ex. 115)) (SHERMAN, JONATHAN) (Entered: 11/16/2017)
Reset Deadline Re: 21 INITIAL SCHEDULING ORDER: Status Report due by 12/11/2017. (vkm) (Entered: 11/21/2017)
135 RESPONSE in Opposition re 104 MOTION to Certify Class filed by PAM BONDI, JIMMY PATRONIS, ADAM H PUTNAM, RICK SCOTT. (NEFF, LANCE) (Entered: 12/04/2017)
136 MEMORANDUM in Opposition re 103 MOTION for Summary Judgment filed by VIRGINIA KAY ATKINS, WILLIAM BASS, JAMES LARRY EXLINE, JOSEPH JAMES GALASSO, HAROLD W GIRCSIS, JR, YRAIDA LEONIDES GUANIPA, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, CHRISTOPHER MICHAEL SMITH. (Attachments: # 1 Exhibit Exhibit A − Applications for Clemency (1967 − 1969)) (SHERMAN, JONATHAN) (Entered: 12/04/2017)
137 RESPONSE in Opposition re 102 MOTION for Summary Judgment (REDACTED VERSION) filed by PAM BONDI, JIMMY PATRONIS, ADAM H PUTNAM, RICK SCOTT. (AGARWAL, AMIT) (Entered: 12/04/2017)
138 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 8/11/2017, before Judge Mark Walker. Court Reporter/Transcriber 850−422−0011, Telephone number Megan A. Hague.

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

Redaction Request due 12/14/2017. Release of Transcript Restriction set for 3/14/2018. (mah) (Entered: 12/07/2017)

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139 MOTION for Leave to File Excess Pages by PAM BONDI, JIMMY PATRONIS, ADAM H PUTNAM, RICK SCOTT. (PRATT, JORDAN) (Entered: 12/08/2017)
140 ORDER GRANTING 139 MOTION TO EXPAND WORD LIMIT. Signed by JUDGE MARK E WALKER on 12/8/2017. (vkm) (Entered: 12/08/2017)
141 REPLY to Response to Motion re 103 MOTION for Summary Judgment filed by PAM BONDI, JIMMY PATRONIS, ADAM H PUTNAM, RICK SCOTT. (AGARWAL, AMIT) (Entered: 12/11/2017)
142 REPLY to Response to Motion re 102 MOTION for Summary Judgment (REDACTED VERSION) filed by VIRGINIA KAY ATKINS, WILLIAM BASS, JAMES LARRY EXLINE, JOSEPH JAMES GALASSO, HAROLD W GIRCSIS, JR, YRAIDA LEONIDES GUANIPA, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, CHRISTOPHER MICHAEL SMITH. (Attachments: # 1 Exhibit Exhibit A − Transcript of August 11, 2017 Hearing on Plaintiffs' Motion to Compel Production of Confidential Case Analyses) (SHERMAN, JONATHAN) (Entered: 12/11/2017)
143 REPLY to Response to Motion re 104 MOTION to Certify Class filed by VIRGINIA KAY ATKINS, WILLIAM BASS, JAMES LARRY EXLINE, JOSEPH JAMES GALASSO, HAROLD W GIRCSIS, JR, YRAIDA LEONIDES GUANIPA, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, CHRISTOPHER MICHAEL SMITH. (SHERMAN, JONATHAN) (Entered: 12/11/2017)
Reset Deadline Re: 21 Initial Scheduling Order − Status Report due by 1/10/2018. (vkm) (Entered: 12/12/2017)
144 ***VACATED AS TO COUNTS I, II, AND III PER ECF 183 ***ORDER ON 102 & 103 CROSS−MOTIONS FOR SUMMARY JUDGMENT. Plaintiffs' motion for summary judgment as to Counts One, Two, and Three is GRANTED. Defendants motion for summary judgment as to Counts One, Two, and Three is DENIED. Plaintiffs motion for summary judgment as to Count Four is DENIED. Defendants motion for summary judgment as to Count Four is GRANTED. Parties shall file briefings related to remedies on or before Monday, February 12, 2018. ( Briefings Deadline − by 2/12/2018.). Signed by JUDGE MARK E WALKER on 2/1/18. (pll) (Entered: 02/01/2018)
145 MOTION to File Amicus Brief filed by JOHN B THOMPSON. (vkm) (Entered: 02/09/2018)
146 ORDER DENYING 145 MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF. Signed by JUDGE MARK E WALKER on 2/9/2018. (vkm) (Entered: 02/09/2018)
Reset Deadline Re: 21 Initial Scheduling Order − Status Report due by 3/12/2018. (vkm) (Entered: 02/12/2018)
147 MEMORANDUM in Support re 102 MOTION for Summary Judgment (REDACTED VERSION) (SUPPLEMENTAL MEMORANDUM REGARDING REMEDY) filed by VIRGINIA KAY ATKINS, WILLIAM BASS, JAMES LARRY EXLINE, JOSEPH JAMES GALASSO, HAROLD W GIRCSIS, JR, YRAIDA LEONIDES GUANIPA, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, CHRISTOPHER MICHAEL SMITH. (Attachments: # 1 Exhibit Exhibit A − Proposed Order) (SHERMAN, JONATHAN) (Entered: 02/12/2018)
148 NOTICE of Appearance by EDWARD M WENGER on behalf of All Defendants (WENGER, EDWARD) (Entered: 02/12/2018)
149 MEMORANDUM in Opposition re 102 MOTION for Summary Judgment (REDACTED VERSION) Supplemental Brief on Remedies filed by PAM BONDI, JIMMY PATRONIS, ADAM H PUTNAM, RICK SCOTT. (AGARWAL, AMIT) (Entered: 02/12/2018)
150 ORDER DENYING 104 PLAINTIFFS' MOTION FOR CLASS CERTIFICATION. Signed by JUDGE MARK E WALKER on 2/13/2018. (tdl) (Entered: 02/13/2018)
151 MOTION for Leave to File Memorandum in Response to Defendants' Brief on Remedies by VIRGINIA KAY ATKINS, WILLIAM BASS, JAMES LARRY EXLINE, JOSEPH JAMES GALASSO, HAROLD W GIRCSIS, JR, YRAIDA

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LEONIDES GUANIPA, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, CHRISTOPHER MICHAEL SMITH. (SHERMAN, JONATHAN) (Entered: 02/14/2018)
152 ORDER GRANTING 151 MOTION FOR LEAVE TO FILE RESPONSE TO DEFENDANT'S BRIEF ON REMEDIES − Each side may file a response to the other side's Brief on Remedies on or before 2/21/2018 at 5:00 p.m. Signed by JUDGE MARK E WALKER on 2/14/2018. (vkm) (Entered: 02/14/2018)
153 MOTION TO RECONSIDER MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF WITH BRIEF TENDERED re 146 Order, filed by JOHN B. THOMPSON. (vkm) (Entered: 02/16/2018)
154 ORDER DENYING 153 MOTION TO RECONSIDER MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF. Signed by JUDGE MARK E WALKER on 2/16/2018. (vkm) (Entered: 02/16/2018)
155 MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF FOR PURPOSES OF ASSISTING THE COURT AS IT CONSIDERS AN APPROPRIATE REMEDY IN THESE PROCEEDINGS filed by MARK R SCHLAKMAN. (vkm) (Entered: 02/16/2018)
156 ORDER GRANTING 155 MOTION FOR LEAVETO FILE AMICUS CURIAE as to MARK R. SCHLAKMAN. Signed by JUDGE MARK E WALKER on 2/19/18. (pll) (Entered: 02/19/2018)
157 RESPONSE by VIRGINIA KAY ATKINS, WILLIAM BASS, JAMES LARRY EXLINE, JOSEPH JAMES GALASSO, HAROLD W GIRCSIS, JR, YRAIDA LEONIDES GUANIPA, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, CHRISTOPHER MICHAEL SMITH re 149 Memorandum in Opposition to Motion RESPONSE TO DEFENDANTS' BRIEF ON REMEDIES. (Attachments: # 1 Exhibit Exhibit A − Amended Proposed Judgment) (SHERMAN, JONATHAN) (Entered: 02/20/2018)
158 RESPONSE in Opposition re 102 MOTION for Summary Judgment (REDACTED VERSION) Response to Plaintiffs' Brief on Remedies filed by PAM BONDI, JIMMY PATRONIS, ADAM H PUTNAM, RICK SCOTT. (AGARWAL, AMIT) (Entered: 02/21/2018)
159 AMICUS CURIAE BRIEF by MARK R SCHLAKMAN. (cle) (Entered: 02/23/2018)
Reset Deadline Re: 21 Initial Scheduling Order − Status Report due by 4/11/2018. (vkm) (Entered: 03/14/2018)
160 ****VACATED PER ECF 183 *** − For the reasons set forth in its prior order, ECF No. 144 , dated February 1, 2018, and this Order, the Clerk shall enter judgment stating: "FLA. CONST. art. VI, § 4(a), FLA. CONST. art. IV § 8, FLA. STAT. § 97.041(2)(b), FLA. STAT. § 944.292(1), and the Florida Rules of Executive Clemency, violate the First and Fourteenth Amendments of the United States Constitution to the extent these provisions provide the Executive Clemency Board unfettered discretion to grant or deny restoration of voting rights to persons with felony convictions, and violate the First Amendment to the extent these provisions lack any time constraints for processing and making final decisions. This DECLARATORY JUDGMENT applies only to the right to vote, not to any other civil right. It does not apply to any other type of executive clemency in Florida. Defendants are PERMANENTLY ENJOINED from enforcing the current unconstitutional vote−restoration scheme. Defendants are also PERMANENTLY ENJOINED from ending all vote−restoration processes. On or before April 26, 2018, Defendants shall promulgate specific and neutral criteria to direct vote−restoration decisions in accordance with this Order. On or before April 26, 2018, Defendants shall also promulgate meaningful, specific, and expeditious time constraints in accordance with this Order. Defendants shall file with this Court its modified rules on or before 4/26/2018". Signed by JUDGE MARK E WALKER on 3/27/2018. (vkm) (Entered: 03/27/2018)
161 CLERK'S JUDGMENT entered pursuant to 160 ORDER DIRECTING ENTRY OF JUDGMENT. (vkm) (Entered: 03/27/2018)

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162 NOTICE OF APPEAL as to 160 Order,,,,,,, Set Deadlines/Hearings,,,,,, by PAM BONDI, JIMMY PATRONIS, ADAM H PUTNAM, RICK SCOTT. ( Filing fee $505 Receipt Number AFLNDC−4140556.) (AGARWAL, AMIT) (Entered: 04/04/2018)
163 MOTION to Stay re 162 Notice of Appeal, 160 Order,,,,,,, Set Deadlines/Hearings,,,,,, by PAM BONDI, JIMMY PATRONIS, ADAM H PUTNAM, RICK SCOTT. (Attachments: # 1 Exhibit Declaration of Julia McCall) (AGARWAL, AMIT) (Entered: 04/04/2018)
164 Joint MOTION to Extend Time and Hold in Abeyance Proceedings Regarding Attorneys' Fees and Costs by VIRGINIA KAY ATKINS, WILLIAM BASS, JAMES LARRY EXLINE, JOSEPH JAMES GALASSO, HAROLD W GIRCSIS, JR, YRAIDA LEONIDES GUANIPA, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, CHRISTOPHER MICHAEL SMITH. (SHERMAN, JONATHAN) (Entered: 04/04/2018)
165 ***CONSTRUED AS A JOINT MOTION PER 166 ORDER***STIPULATION re 164 Joint MOTION to Extend Time and Hold in Abeyance Proceedings Regarding Attorneys' Fees and Costs by VIRGINIA KAY ATKINS, WILLIAM BASS, JAMES LARRY EXLINE, JOSEPH JAMES GALASSO, HAROLD W GIRCSIS, JR, YRAIDA LEONIDES GUANIPA, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, CHRISTOPHER MICHAEL SMITH. (SHERMAN, JONATHAN) Modified on 4/4/2018 (vkm). (Entered: 04/04/2018)
166 ORDER HOLDING IN ABEYANCE PROCEEDINGS REGARDING ATTORNEYS' FEES AND COSTS DURING THE PENDENCY OF APPEAL − The joint motion ECF No. 164 , is DENIED as moot. Construed by this Court as a joint motion, the Joint Stipulation, ECF No. 165 , is GRANTED. All fee and cost issues shall be held in abeyance until such time as any appellate proceeding and proceedings before the U.S. Supreme Court have ended. The parties shall have fourteen days after proceedings before the U.S. Supreme Court have ended to file a motion for entitlement to attorneys' fees and costs. Signed by JUDGE MARK E WALKER on 4/4/2018. (vkm) (Entered: 04/04/2018)
167 ORDER DENYING DEFENDANTS' 163 MOTION FOR STAY PENDING APPEAL − This Court also DENIES Defendants' alternative request to toll the remedial 30−day period pending their appeals. Defendants remain bound by the timeframe set out in its Order Directing Entry of Judgment. ECF No. 160 . Defendants shall promulgate executive clemency rules that pass constitutional muster on or before April 26, 2018. Signed by JUDGE MARK E WALKER on 4/4/2018. (vkm) (Entered: 04/04/2018)
168 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 162 Notice of Appeal (vkm) (Entered: 04/05/2018)
169 Appeal Instructions re: 162 Notice of Appeal: The Transcript Request Form is available on the Internet at http://www.flnd.uscourts.gov/forms/Attorney/ECCA_transcript_form_fillable.pdf **PLEASE NOTE** Separate forms must be filed for each court reporter. Transcript Order Form due by 4/19/2018. (vkm) (Entered: 04/05/2018)
Set Deadline re 162 Notice of Appeal: Clerk to check status of Appeal on 7/5/2018. (vkm) (Entered: 04/05/2018)
172 USCA Case Number 18−11388−G for 162 NOTICE OF APPEAL. (vkm) (Entered: 04/20/2018)
170 TRANSCRIPT REQUEST by PAM BONDI, JIMMY PATRONIS, ADAM H PUTNAM, RICK SCOTT for proceedings held on 04/12/2017, 08/11/2017 before Judge Hon. Mark E. Walker, re 162 Notice of Appeal, 168 Transmission of Notice of Appeal and Docket Sheet to USCA Transcript due by 4/19/2018. (PRATT, JORDAN) (Entered: 04/19/2018)
171 TRANSCRIPT Acknowledgment − Part II re 162 Notice of Appeal Court Reporter:Megan A. Hague Transcript due by 5/19/2018. (mah) (Entered: 04/19/2018)
178 ORDER of USCA − The appellants' motion is GRANTED, and the injunctions entered by the district court are STAYED pending the resolution of this appeal as to 162 Notice of Appeal. USCA #18−11388−G (vkm) (Entered: 05/23/2018)

04/29/2018 173 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 4/12/2017, before Judge Mark Walker. Court Reporter/Transcriber Megan A. Hague, Telephone number 850−422−0011.
Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

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Redaction Request due 5/7/2018. Release of Transcript Restriction set for 8/6/2018. (mah) (Entered: 04/29/2018)
174 NOTICE of Filing Transcript (Part III) by Court Reporter in District Court − re: 162 Notice of Appeal, 170 Transcript Request Appeal Part I, 171 Transcript Acknowledgment − Part II Court Reporter: Megan A. Hague Certificate of Readiness due by 4/30/2018. (mah) (Entered: 04/30/2018)
175 Pursuant to F.R.A.P. 11(c), the Clerk of the District Court for the Northern District of Florida certifies that the record is complete for purposes of this appeal re: 162 Notice of Appeal, Appeal No. 18−11388−G. The entire record on appeal is available electronically EXCEPT 100 , 101 , and 109 SEALED EXHIBITS. (vkm) (Entered: 04/30/2018)
176 SEALED PLAINTIFF'S UNREDACTED MOTION FOR SUMMARY JUDGMENT AND INCORPORATED MEMORANDUM OF LAW (FILED WITH THE COURT ON NOVEMBER 13, 2017) RE 114 THRU 134 EXHIBITS IN SUPPORT by VIRGINIA KAY ATKINS, WILLIAM BASS, JAMES LARRY EXLINE, JOSEPH JAMES GALASSO, HAROLD W GIRCSIS, JR, YRAIDA LEONIDES GUANIPA, JAMES MICHAEL HAND, JERMAINE JOHNEKINS, CHRISTOPHER MICHAEL SMITH. (vkm) (Entered: 05/03/2018)
177 ORIGINAL PAPERS to US Court of Appeals re 162 Notice of Appeal Number of Volumes: 2 − Volume 1 of 2 containing Sealed Plaintiff's Exhibits 1−8, Doc. 100 (1 disc); Plaintiff's Exhibits 113 & 116−177, Doc. 101 (64 discs) and Volume 2 of 2 containing Sealed Defendant's Exhibits M−T, Doc. 108 (also contained on 1 disc, Doc. 109 ); Sealed Plaintiff's Unredacted Motion for Summary Judgment, Doc. 176 (Filed with the Court on November 13, 2017) (vkm) (Entered: 05/03/2018)
179 Letter dated 6/4/2018 from JANET L WRIGHT (vkm) (Entered: 06/08/2018)
RESet Deadline re 162 Notice of Appeal. (Clerk to check status of Appeal on 10/6/2018.), Appeal STATUS (7/5/2018) Deadline Terminated −− Appeal still pending. (kdm) (Entered: 07/06/2018)
RESet Deadline re 162 Notice of Appeal. (Clerk to check status of Appeal on 1/26/2019.), Appeal STATUS (10/6/2018) Deadline Terminated −− Appeal still pending. (kdm) (Entered: 10/26/2018)
Re−set Appeal Status Deadline re 162 Notice of Appeal : Clerk to check status of Appeal on 8/15/2019. (toy) (Entered: 05/15/2019)
Reset Appeal Status Deadlines re 162 Notice of Appeal : (Clerk to check status of Appeal on 11/16/2019.) (toy) (Entered: 08/16/2019)
Reset Appeal Status Deadline re 162 Notice of Appeal :( Clerk to check status of Appeal on 2/18/2020.) (toy) (Entered: 11/18/2019)
180 MOTION to Withdraw as Attorney by JEFF ATWATER, PAM BONDI, MELINDA N COONROD, RICHARD D DAVISON, KEN DETZNER, JULIE L JONES, JULIA MCCALL, JIMMY PATRONIS, ADAM H PUTNAM, MARK R SCHLAKMAN, RICK SCOTT, DAVID A WYANT. (WENGER, EDWARD) (Entered: 12/30/2019)
181 ORDER GRANTING MOTION TO WITHDRAW. This Court has considered, without hearing, Edward M. Wenger's Notice of Withdrawal of Counsel. ECF No. 180 . Construed by this Court as a motion to withdraw, the motion is GRANTED. Mr. Wenger is permitted to withdraw as counsel. The Clerk shall disconnect the notice of electronic filing for Mr. Wenger. Defendants shall continue to be represented by Amit

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Agarwal, Jonathan Alan Glogau, Jordan E. Pratt, and Lance Eric Neff. Signed by CHIEF JUDGE MARK E WALKER on 12/30/19. (blb) (Entered: 12/30/2019)
184 USCA JUDGMENT−18−11388−GG as to 162 Notice of Appeal. Judgment has this day been entered pursuant to FRAP 36. The court's mandate will issue at a later date in accordance with FRAP 41(b). This case is hereby REMANDED with instructions to DISMISS for mootness. (rcb) (Entered: 01/31/2020)
182 MANDATE of USCA−18−11388 as to 162 Notice of Appeal filed by PAM BONDI, JIMMY PATRONIS, RICK SCOTT, ADAM H PUTNAM. Accordingly, the district court's order on cross−motions for summaryjudgment dated February 1, 2018 is VACATED as to Counts One, Two, andThree. The district courts order directing entry of judgment dated March 27, 2018 is hereby VACATED in its entirety. This case is hereby REMANDED with instructions to DISMISS for mootness.(30 Day Exhibit Return Deadline After Appeal Mandate set for 2/12/2020.) (rcb) (Entered: 01/29/2020)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of CHIEF JUDGE MARK E WALKER notified that action is needed Re: 182 USCA Mandate. (rcb) (Entered: 01/29/2020)
183 ORDER DISMISSING CASE. The Clerk shall annotate the docket to reflect that this Court's Order on the parties' cross−motions for summary judgment, ECF No. 144 , is VACATED as to Counts I, II, and III, and this Courts Order directing entry of judgment, ECF No. 160 , is VACATED in its entirety. Thereafter, the Clerk shall again close the file. Signed by CHIEF JUDGE MARK E WALKER on 01/30/2020. (rcb) (Entered: 01/31/2020)
185 MANDATE of USCA−18−11388−GG as to 162 It is hereby ordered, adjudged, and decreed that the opinion issued on this date in this appeal is entered as the judgment of this Court. (30 Day Exhibit Return Deadline After Appeal Mandate set for 3/11/2020.) (rcb) (Entered: 02/11/2020)

 
 Case 4:17-cv-00128-MW-CAS Document 1 Filed 03/13/17 Page 1 of 77

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION

JAMES MICHAEL HAND,

)

JOSEPH JAMES GALASSO,

)

HAROLD W. GIRCSIS, JR.,

)

CHRISTOPHER MICHAEL SMITH, )

WILLIAM BASS, JERMAINE

)

JOHNEKINS, YRAIDA LEONIDES )

GUANIPA, on behalf of themselves )

and others similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

RICK SCOTT, in his official capacity )

as Governor of Florida and member )

of the State of Florida’s Executive )

Clemency Board, PAM BONDI, in )

her official capacity as the Attorney )

General of Florida and member of the )

Executive Clemency Board, JEFF )

ATWATER, in his official capacity )

as Chief Financial Officer and

)

member of the Executive Clemency )

Board, ADAM H. PUTNAM, in his )

official capacity as Commissioner of )

Agriculture and member of the

)

Executive Clemency Board, KEN )

DETZNER, in his official capacity as )

Secretary of State of Florida, JULIE )

L. JONES, in her official capacity as )

Secretary of the Department of

)

Corrections, MELINDA N.

)

COONROD, in her official capacity )

as Commissioner and Chair of the )

Florida Commission on Offender )

Review, RICHARD D. DAVISON, )

CIVIL ACTION NO. ____________
CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1

Case 4:17-cv-00128-MW-CAS Document 1 Filed 03/13/17 Page 2 of 77

in his official capacity as

)

Commissioner of the Florida

)

Commission on Offender Review, )

DAVID A. WYANT, in his official )

Capacity as Commissioner of the )

Florida Commission on Offender )

Review, JULIA McCALL, in her )

official capacity as Coordinator for )

the Office of Executive Clemency of )

the Florida Commission on Offender )

Review,

)

)

Defendants.

)

)

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Plaintiffs James Michael Hand, Joseph James Galasso, Harold W. Gircsis, Jr.,

Christopher Michael Smith, William Bass, Jermaine Johnekins and Yraida Leonides

Guanipa (collectively, “Plaintiffs”) seek declaratory and injunctive relief and allege

as follows:

NATURE OF ACTION

1. Florida is one of just four states which denies the right to vote to all

convicted former felons until they successfully petition for the restoration of their

civil rights. Kentucky, Iowa and Virginia are the only other states that consign the

voting rights of all convicted former felons (hereinafter “disenfranchised ex-felons”

2

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or “ex-felons”) to the unrestrained discretion of public officials.1 This class action challenges Florida’s disenfranchisement and re-enfranchisement laws, which have made the process of voting rights restoration unconstitutionally arbitrary.
2. Disenfranchised ex-felons who have completed their sentences and who seek to regain their voting rights in Florida must petition the Executive Clemency Board (or “the Board”), which is comprised of the Governor of Florida, the Attorney General, the Chief Financial Officer and the Commissioner of Agriculture. Fla. R. Exec. Clemency 1. The decision whether to grant or deny an ex-felon’s restoration application rests with the unfettered discretion of these four Board members. The application must be approved by a majority of the Board members and the Governor must be included in the majority.
3. While the Rules of Executive Clemency set forth a procedure for applications to the Board, there are no laws, rules or regulations governing the Board’s determinations, which remain wholly arbitrary. Rule 4 explicitly provides that: “The Governor has the unfettered discretion to deny clemency at any time, for any reason.” Fla. R. Exec. Clemency 4. Defendant Governor Rick Scott frequently
1 While Virginia’s current administration is restoring the voting rights of ex-felons who have completed their sentences including parole and probation, the state laws have not been changed. In some states, ex-felons convicted of certain felonies or multiple felonies continue to be disenfranchised following the completion of their sentences and must petition a court or state officials to regain their voting rights. See, e.g., ARIZ. REV. STAT. ANN. §§ 13-905, 13-906; NEV. REV. STAT. ANN. § 213.155.
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states that the Executive Clemency Board acts as a “court of mercy”2 and underscores that the Board is not bound by any law in making its decisions. Frequently the Board members state that they are looking to see if someone has “turned [his or her] life around” and if the applicant has shown remorse. By way of example, Governor Scott opened the March 3, 2016 hearing with the following declaration of limitless discretion: “This is a board of clemency. Ok? There is no law we’re following. The law has already been followed by the judges. So we get to make our decisions based on our own beliefs.”3 With such vague, shifting standards based on personal beliefs, applicants may be denied for any reason, including a record of traffic violations, an admission to drinking alcohol or recreational drug use, or no reason at all, just a state official’s whim, impression or gut instinct. Applicants may also be granted for any reason, including the testimony of family members, friends or pastors, an applicant’s demeanor or dress, or the expression of political views which Board members favor, or no reason at all, just a state official’s whim, impression or gut instinct.
2 The Statement of Policy that opens the Florida Rules of Executive Clemency states that: “Clemency is 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.” Fla. R. Exec. Clemency 1. 3 Executive Clemency Board Hearing (March 3, 2016 at 00:04:25), available at http://thefloridachannel.org/videos/3316-executive-clemency-board-meeting-part1/ (last visited Mar. 9, 2017).
4

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4. The risk of viewpoint discrimination is highest when a government official’s discretion to authorize or reject First Amendment-protected activity is entirely unconstrained by law. In this context, officials may deny restoration of the right to vote on pretextual grounds while secretly basing their decision on the applicant’s race, professions of faith (or lack thereof) or speculation as to the applicant’s political affiliation or views. This is why – under longstanding Supreme Court precedent – conditioning the enjoyment of a fundamental constitutional right on the exercise of unfettered official discretion and arbitrary decision-making imposes a prior restraint and violates the First Amendment to the United States Constitution. This arbitrary allocation of the franchise also violates the Equal Protection Clause of the Fourteenth Amendment.
5. Furthermore, no laws, rules or regulations set any time limits on the Board to act on an ex-felon’s application for restoration of civil rights in Florida. Board hearings are held only four times per year and only in Tallahassee. The Board only hears an average of 52 restoration of civil rights cases per quarterly meeting. Under the current set of rules adopted back in 2011, the Executive Clemency Board has imposed an unjustifiable further roadblock to restoration of voting rights, forcing ex-felons who have completed their sentences to wait an additional five or seven years following the completion of their sentence before they can even apply for restoration of voting rights. Upon information and belief, it is common for an
5

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applicant to wait as many as ten years, if not more, without any update from the Board before he or she is finally given a hearing date or notified the application was denied or granted without a hearing. This delay is exacerbated by the existing backlog of applications, which – as of March 1, 2017 – stood at 10,513 pending applications.4 The lack of a definite time limit for the adjudication of an ex-felon’s application for restoration of voting rights also violates the First Amendment to the United States Constitution. The waiting period imposes a second sentence above and beyond that imposed by a federal or state judge and a severe restriction on exfelons seeking to regain their voting rights, which is not narrowly tailored to any legitimate government interest and therefore violates the First and Fourteenth Amendments to the U.S. Constitution.
6. The Executive Clemency Board’s restoration process has always been an unconstitutional obstacle to regaining the right to vote but this problem has become particularly acute since Defendant Governor Scott took office in 2011 and changed the rules to require lengthy waiting periods. The Governor has also exercised his unbridled power over clemency procedures to reduce the number of civil rights restoration applications which are processed annually and reject
4 On September 1, 2016, this figure was 10,588. The backlog has only decreased by 75 pending applications in six months, demonstrating that the current system has both caused Florida’s disenfranchised population to grow to 1.68 million and is utterly unsuited to addressing the ever-worsening problem.
6

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tremendous numbers of ex-felon applicants. The data shows that civil rights restoration grants have dramatically declined since Governor Scott assumed office in 2011: 1,428 (2001); 6,651 (2002); 14,836 (2003); 24,902 (2004); 11,638 (2005); 14,053 (2006); 38,971 (2007); 85,088 (2008); 25,347 (2009); 5,909 (2010); 78 (2011); 342 (2012); 605 (2013); 562 (2014); 428 (2015); and 473 (2016). As a result, Florida now has an estimated 1.68 million disenfranchised ex-felons5 or 10.4 percent of the state’s voting-age population—both the highest total and the highest rate in the nation.6
7. Plaintiffs bring this action under 42 U.S.C. § 1983 against Defendants’ unlawful deprivation of Plaintiffs’ rights under the First and Fourteenth Amendments to the United States Constitution.
8. Plaintiffs James Michael Hand, Joseph James Galasso, Harold W. Gircsis, Jr., Christopher Michael Smith, William Bass and Jermaine Johnekins are disenfranchised ex-felons who have applied for restoration of their civil rights by the Board. All but one of their applications have been denied; William Bass’s application is pending in the backlog. Plaintiff Yraida Leonides Guanipa is not yet
5 Christopher Uggen, Ryan Larson and Sarah Shannon, 6 Million Lost Voters: State-Level Estimates of Felony Disenfranchisement, The Sentencing Project (2016) (Table 3), available at http://www.sentencingproject.org/wpcontent/uploads/2016/10/6-Million-Lost-Voters.pdf#page=17 (last visited Mar. 7, 2017). 6 Id. (Figure 2).
7

Case 4:17-cv-00128-MW-CAS Document 1 Filed 03/13/17 Page 8 of 77
eligible to apply for restoration of her civil rights because seven years have not elapsed since she completed her sentence.
JURSIDICTION AND VENUE 9. This Court has jurisdiction over Plaintiffs’ federal claims pursuant to 28 U.S.C. §§ 1331 and 1343 because this case arises under the United States Constitution and seeks equitable and other relief for the deprivation of constitutional rights under color of state law. 10. This Court has jurisdiction to award attorneys’ fees and costs pursuant to 42 U.S.C. § 1988 and 28 U.S.C. § 1920. 11. This Court has jurisdiction to grant declaratory relief pursuant to 28 U.S.C. §§ 2201 and 2202. 12. This Court has personal jurisdiction over Defendant Rick Scott, the Governor of Florida, Defendant Pam Bondi, Attorney General, Jeff Atwater, Chief Financial Officer, and Adam Putnam, Commissioner of Agriculture, the members of the Cabinet and the Executive Clemency Board, who are sued in their official capacities. Defendant Board Members Governor Scott, Bondi, Atwater and Putnam are elected state government officials who reside and work in Tallahassee, Florida. 13. This Court has personal jurisdiction over Defendant Ken Detzner, Secretary of State of Florida, who is sued in his official capacity. Defendant Detzner is an appointed state official who resides and works in Tallahassee, Florida.
8

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14. This Court has personal jurisdiction over Defendant Julie L. Jones, who is sued in her official capacity as the Secretary of the Department of Corrections. Defendant Jones is an appointed state official who resides and works in Tallahassee, Florida.
15. This Court has personal jurisdiction over Defendant Melinda N. Coonrod, who is sued in her official capacity as Commissioner and Chair of the Florida Commission on Offender Review (formerly the Florida Parole and Probation Commission), and Richard D. Davison and David A. Wyant, who are also both sued in their official capacities as Commissioner of the Florida Commission on Offender Review. Defendants Coonrod, Davison and Wyant are appointed state officials who reside and work in Tallahassee, Florida.
16. This Court has personal jurisdiction over Defendant Julia McCall, who is sued in her official capacity as Coordinator for the Office of Executive Clemency of the Florida Commission on Offender Review. Defendant McCall is a state official appointed by the Governor and Cabinet, who resides and works in Tallahassee, Florida.
17. Venue is appropriate in the Northern District of Florida, under 28 U.S.C. § 1391(b)(1), because Defendants Scott, Bondi, Atwater, Putnam, Detzner, Jones, Coonrod, Davison, Wyant and McCall are state officials working in Tallahassee, Florida. A substantial part of the events giving rise to these claims
9

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occurred and will continue to occur in this district, making venue also proper under 28 U.S.C. § 1391(b)(2).
PARTIES 18. Plaintiff James Michael Hand is a United States citizen, 63 years old, and a resident of Cutler Bay, Florida. Mr. Hand was convicted of at least one felony in Florida state court and lost his right to vote under Florida state law. In 1986, Mr. Hand was released from prison, and he completed his sentence in 2002. After he completed his sentence, Mr. Hand applied to the Board for the restoration of his civil rights. At an Executive Clemency Board hearing on December 16, 2011, his application was denied. In rejecting his application, Governor Scott cited Mr. Hand’s record of moving or traffic violations and said the following: “Congratulations on turning your life around. Congratulations on your business. In light of the significant issue—you know, traffic violations, and your inability to comply with the law in that manner, I’m going to deny you restoration of civil rights at this time.”7 19. Plaintiff Joseph James Galasso is a United States citizen, 46 years old, and a resident of Gainesville, Florida. Mr. Galasso was convicted of at least one felony in Florida state court and lost his right to vote under Florida state law. Mr.
7 Executive Clemency Board Hearing (Dec. 16, 2011 at 2:20:08-2:30:40), available at http://thefloridachannel.org/videos/121611-executive-clemency-board-meeting/ (last visited Mar. 8, 2017).
10

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Galasso completed his sentence, including probation, in January 2004. In 2001, just prior to his release from prison, he had applied to the Executive Clemency Board for the restoration of his civil rights and had to wait twelve years before he was finally scheduled for a hearing. The Office of Clemency Investigations did not begin its investigation of Mr. Galasso’s case until roughly a decade after he applied. At a Board hearing on March 20, 2013, his application was taken under advisement. Defendant Governor Scott said: “So you’ve really turned your life around. You’ve been out of prison eleven years and you’ve got all these traffic violations. . . . You’ve turned your life around but if you—if you really don’t care about the law and you have all these traffic violations it’s hard to say gosh you really believe in the law.” Soon after the hearing, Mr. Galasso received a letter notifying him that his application had been denied.8
20. Plaintiff Harold W. Gircsis, Jr. is a United States citizen, 64 years old, and a resident of Port Charlotte, Florida. Mr. Gircsis was convicted of at least one felony in the U.S. District Court for the District of Minnesota and lost his right to vote under Florida state law. Mr. Gircsis completed his sentence, including probation, on October 15, 2003. In 2006, he applied to the Executive Clemency
8 Executive Clemency Board Hearing (Mar. 20, 2013) (audio only and not available online).
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Board for the restoration of his civil rights but was not given a hearing date until 2011. At a Board hearing on December 16, 2011, his application was denied.9
21. Plaintiff Christopher Michael Smith is a United States citizen, 43 years old, and a resident of Miami, Florida. Mr. Smith was convicted of at least one felony in Florida state court and lost his right to vote under Florida state law. Mr. Smith completed his sentence in 1997. In 2006, he applied to the Executive Clemency Board for the restoration of his civil rights. In 2011, Mr. Smith refiled his application because it had been pending for five years. The Office of Executive Clemency contacted Mr. Smith to inform him that his application was still pending and that he did not need to refile his petition. In the spring of 2016, the Board notified Mr. Smith that he had been scheduled for a hearing in September. At a Board hearing on September 21, 2016, his application was taken under advisement.10 About a week later, Mr. Smith received a letter notifying him that his restoration application had been denied.
22. Plaintiff William Bass is a United States citizen, 64 years old, and a resident of St. Petersburg, Florida. Mr. Bass was convicted of at least one felony in

9 Executive Clemency Board Hearing (December 16, 2011 at 1:25:01-1:26:03),

available at http://thefloridachannel.org/videos/121611-executive-clemency-board-

meeting/ (last visited Mar. 9, 2017).

10 Executive Clemency Board Hearing (September 21, 2016 at 4:23:03-

4:29:37), available

at http://thefloridachannel.org/videos/92116-executive-

clemency-board-meeting-part-2/ (last visited Mar. 10, 2017).

12

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Florida state court and lost his right to vote under Florida state law. Mr. Bass completed his sentence in 2008. In either 2011 or 2012, he applied to the Executive Clemency Board for the restoration of his civil rights. Mr. Bass subsequently contacted the Office of Executive Clemency, and they informed him that he had to wait five to seven years after completing his sentence before he could apply for restoration. Prior to the 2016 general election, Mr. Bass re-filed his application, which remains pending in the backlog of applications before the Executive Clemency Board. Mr. Bass recently received a letter from the Office of Executive Clemency dated January 20, 2017, notifying him that the Executive Clemency Board did not approve him for restoration of civil rights without a hearing. The letter advised him that his case had been referred to the Florida Commission on Offender Review for a full investigation and ultimately a hearing. Mr. Bass was informed that he could also choose to withdraw his application and a “Notice of Withdrawal of Clemency Application” form was enclosed with the letter. Mr. Bass will not withdraw his restoration of civil rights application.
23. Plaintiff Jermaine Johnekins is a United States citizen, 44 years old, and a resident of Pembroke Pines, Florida. Mr. Johnekins was convicted of at least one felony in Florida state court and lost his right to vote under Florida state law. Mr. Johnekins was sentenced to a work-release program for nine and a half months, which he completed in 1998. In early 2012, he applied to the Executive Clemency
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Board for the restoration of his civil rights. At a Board hearing on March 22, 2012, his application was denied.11
24. Plaintiff Yraida Leonides Guanipa is a United States citizen, 55 years old, and a resident of Miami, Florida. In 1996, Ms. Guanipa was convicted of at least one felony in the U.S. District Court for the Southern District of Florida. She was released from prison in June 2007 and completed probation in June 2012. Under the Executive Clemency Board’s current rules, Ms. Guanipa is barred from applying for a restoration of her civil rights until June 2019, seven years after the completion of her full sentence.
25. Plaintiffs want to register and vote in future primary and general elections in the State of Florida for candidates of their choice and ballot initiatives, and to support and associate with political parties in order to advance the parties’ goals.
26. Defendant Rick Scott is the Governor of Florida and is sued in his official capacity. The Florida Constitution vests the Governor with the authority to restore civil rights. FLA. CONST. art. IV § 8(a). The Governor heads the Executive Clemency Board, which is tasked with promulgating the Rules of Executive Clemency and making final determinations on all restoration of civil rights cases.

11 Executive Clemency Board Hearing (March 22, 2012 at 2:08:33-

2:13:44), available

at http://thefloridachannel.org/videos/32212-executive-

clemency-board-meeting/ (last visited Mar. 20, 2017).

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FLA. STAT. ANN. § 940.03. The Governor is empowered to restore civil rights by executive order. FLA. STAT. ANN. § 940.01(1). The Governor may join with two other Board members to grant an application for restoration of civil rights or deny the application outright because he or she must be in the majority for any grant. Id.; FLA. STAT. ANN. § 940.03; Fla. R. Exec. Clemency 4.
27. Defendants Pam Bondi, Jeff Atwater and Adam Putnam, the remaining members of the Cabinet and the Executive Clemency Board, are sued in their official capacities. Fla. R. Exec. Clemency 1. As members of the Board, they have the power to grant or deny an application for restoration of civil rights by either concurring in the Governor’s motion to grant or withholding their support. Fla. R. Exec. Clemency 4.
28. Defendant Ken Detzner is the Secretary of State of Florida and is sued in his official capacity. As Secretary of State, Defendant Detzner is Florida’s chief elections officer and administers Florida’s election laws. FLA. STAT. ANN. § 97.012.
29. Defendant Julie L. Jones is the Secretary of the Department of Corrections and is sued in her official capacity. The Department of Corrections has “supervisory and protective care, custody, and control of the inmates, buildings, grounds, property, and all other matters pertaining to the following facilities and programs for the imprisonment, correction, and rehabilitation of adult offenders: (a) Department of Corrections adult correctional institutions; (b) Department of
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Corrections youthful offender institutions; (c) Department of Corrections Mental Health Treatment Facility; (d) Department of Corrections Probation and Restitution Center; (e) Department of Corrections community correctional centers; and (f) Department of Corrections vocational centers.” FLA. STAT. ANN. § 945.025(1). The Department of Corrections is charged with “inform[ing] and educat[ing] inmates and offenders on community supervision about the restoration of civil rights.” FLA. STAT. ANN. § 940.061. Additionally, every month the Department of Corrections must electronically transfer to the Florida Commission on Offender Review “a list of the names of inmates who have been released from incarceration and offenders who have been terminated from supervision who may be eligible for restoration of civil rights.” Id.
30. Defendant Melinda N. Coonrod is the Commissioner and Chair of the Florida Commission on Offender Review (formerly the Florida Parole and Probation Commission) and is sued in her official capacity. The Florida Commission on Offender Review, a three-member quasi-judicial body, makes decisions on granting and revoking parole, conditional medical release, control release, conditional release and addiction recovery release. FLA. STAT. ANN. §§ 947.002, 947.01.12 The
12 See also Florida Commission on Offender Review: 2015-2016 Annual Report, at 5-7, available at https://www.fcor.state.fl.us/docs/reports/FCORannualreport201516.pdf (last visited Mar. 9, 2017).
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Commission on Offender Review also “[a]cts as the administrative and investigative arm” of the Executive Clemency Board and, in this capacity, must report to the Board on “the circumstances, the criminal records, and the social, physical, mental, and psychiatric conditions and histories of persons under consideration by the board for” any form of clemency. Id. at 7; FLA. STAT. ANN. § 947.13(1)(e). The Commission’s Chair “shall establish, execute, and be held accountable for all administrative policy decisions. The routine administrative decisions are the full responsibility of the chair.” FLA. STAT. ANN. § 947.002(3).
31. Defendants Richard D. Davison and David A. Wyant are the other two Commissioners serving on the Florida Commission on Offender Review. They are sued in their official capacities.
32. Defendant Julia McCall is the Coordinator for the Office of Executive Clemency and is sued in her official capacity. The Office of Executive Clemency (“OEC”) is an office within the Florida Commission on Offender Review and reports to the Executive Clemency Board.13 The OEC processes executive clemency applications and prepares them for the Board’s consideration. In her capacity as Coordinator for the OEC, Defendant McCall “is responsible for coordinating all
13 Florida Commission on Offender Review: 2015-2016 Annual Report, at 14, available at https://www.fcor.state.fl.us/docs/reports/FCORannualreport201516.pdf (last visited Mar. 9, 2017).
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clemency meetings, referring applications for investigation [by the Office of Clemency Investigations14], and serves as the official custodian of all clemency
records.” Id. The OEC also prepares the executive orders and certificates granting
clemency and communicates with applicants and their counsel. Id.
BACKGROUND
A. History of Felon Disenfranchisement and Re-Enfranchisement in Florida
33. The disenfranchisement of individuals with felony convictions has a
long history in Florida. Florida adopted its first constitution in 1838, prior to its
admission to the union in 1845. The 1838 Constitution vested the general power to
exclude those “convicted of bribery, perjury, forgery, or other high crime, or
misdemeanor” from the franchise in the General Assembly. FLA. CONST. art. VI, §§
4, 13 (1838). The disenfranchisement language was left unchanged until 1868 when
the Reconstruction Act of 1867 required Florida and ten other former Confederate
14 The Office of Clemency Investigations (“OCI”) is another office within the Florida Commission of Offender Review. The OCI is “charged with investigating, reviewing, evaluating, and reporting to the Clemency Board in all types of clemency cases[.]” The staff conducts an investigation of every ex-felon applicant for restoration of civil rights, reviews his or her criminal record, traffic record, family situation, employment, any alcohol or drug abuse history, any unlawful voter registration or voting activity and any military history, and produces a Confidential Case Analysis, which the Board reviews and which is sent to the applicant. Florida Commission on Offender Review: 2015-2016 Annual Report, at 15, available at https://www.fcor.state.fl.us/docs/reports/FCORannualreport201516.pdf (last visited Mar. 9, 2017).
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states to amend their Constitutions to extend the right to vote to all men, regardless of race. While the 1868 Constitution granted suffrage to all men over the age of 21, regardless of race, color, nationality, or previous condition of servitude, it also explicitly disenfranchised “any person convicted of [a] felony” for life “unless restored to civil rights.” FLA. CONST. art. XIV, §§ 2, 4 (1868). This language remained in the Constitution for the next century and was amended in 1968 to state that “[n]o person convicted of a felony . . . shall be qualified to vote or hold office until restoration of civil rights,” which remains the law to this day. FLA. CONST. art. VI, § 4 (1968). The felon disenfranchisement statute accordingly disqualifies “[a] person who has been convicted of any felony by any court of record and who has not had his or her right to vote restored pursuant to law.” FLA. STAT. ANN. § 97.041(2)(b).
34. The 1868 Constitution had also provided that pardons could be granted by a board comprised of “The Governor, Justices of the Supreme Court, and Attorney General, or a major part of them, of whom the Governor shall be one.” FLA. CONST. art. V, § 12 (1868). FLA. CONST. art. XIV, § 2 (1868) “allowed those who had been ‘restored to civil rights’ to vote, but did not indicate how this restoration might happen.”15 Since 1968, the Constitution has clearly vested the
15 PIPPA HOLLOWAY, LIVING IN INFAMY: FELON DISENFRANCHISEMENT AND THE HISTORY OF AMERICAN CITIZENSHIP 106 (2014).
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Governor of Florida with the power to restore an individual’s civil rights. Article
IV, Section 8(a) of the Constitution provides:
Except in cases of treason and in cases where impeachment results in conviction, the governor may, by executive order filed with the custodian of state records, suspend collection of fines and forfeitures, grant reprieves not exceeding sixty days and, with the approval of two members of the cabinet, grant full or conditional pardons, restore civil rights, commute punishment, and remit fines and forfeitures for offenses.16
FLA. STAT. ANN. § 944.292(1), which was first enacted in 1974, conditions the
restoration of civil rights on a full pardon, a conditional pardon, or a grant of
restoration pursuant to the Governor’s Article IV, Section 8 clemency powers.
35. Under Governor Bush’s administration from 1999 to 2007, there were
no waiting periods for ex-felons before they could apply for restoration of their civil
rights. Instead, to be eligible for restoration of civil rights, the individual must have
completed all sentences and all conditions of supervision must have expired or been
completed. Individuals were eligible for restoration of civil rights without a hearing
if they were convicted of what the Board deemed less serious felonies and had “[n]o
outstanding detainers or pending criminal charges, or terms of supervised release”
16 Even in conjunction with Article VI, Section 4 above, it is not clear that Florida’s Constitution gives the Governor the exclusive authority to restore civil rights, i.e. that the Legislature could not pass legislation restoring ex-felons’ civil rights automatically upon sentence completion. Indeed, FLA. STAT. ANN. § 97.041 tellingly articulates the felon disqualification as follows: “A person who has been convicted of any felony by any court of record and who has not had his or her right to vote restored pursuant to law.” (Emphasis added).
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and no outstanding victim restitution. Fla. R. Exec. Clemency 9 (2000-2006). An application was not required of such ex-felons unless they had been convicted in a court other than a Florida state court. Fla. R. Exec. Clemency 6, 9 (2000-2003). The Department of Corrections released the names of ex-felons who had completed their sentences including any parole, probation or supervised release to the Office of Executive Clemency (“OEC”) for review. Fla. R. Exec. Clemency 9.C (2000-2002). The Coordinator of the OEC would prepare for the Board a preliminary review list of ex-felons qualified for restoration without a hearing; individuals on that list would be granted restoration of civil rights unless three or more Board members objected. Fla. R. Exec. Clemency 9.B (2000-2002). In March of 2003, that threshold was reduced to two or more Board members. Fla. R. Exec. Clemency 9.B (2003). Up until 2004, the rules stated: “If determined eligible [for restoration without a hearing], an individual may, in most cases, receive a certificate evidencing restoration of civil rights . . . within one calendar year.” Fla. R. Exec. Clemency 9 (2000-2003). Those convicted of any of the listed felonies the Board deemed more serious were required to submit an application and face the Board in a hearing. Fla. R. Exec. Clemency 6, 9-11 (2000-2004). Additionally, from 2000 through 2002, the Rules of Executive Clemency clearly stated that “[t]he failure to attend the hearing will not be weighed against the applicant.” Fla. R. Exec. Clemency 11(B) (20002002). This provision was removed in 2003 and replaced with the statement that
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“[a]pplicants are not required to appear at the hearing, but the Clemency Board encourages applicants to attend.” Fla. R. Exec. Clemency 11(B) (2003).
36. The revised rules promulgated in 2004 made additional categories of ex-felons eligible for restoration of civil rights without a hearing under Rule 9. Individuals who remained crime- and arrest-free for five years after completing all sentences and conditions of supervision were eligible for restoration of civil rights without a hearing so long as they did not have a conviction involving one of seven enumerated categories of felonies. Fla. R. Exec. Clemency 9.A.5 (2004-2006). All other ex-felons who had been convicted of a felony within one of the enumerated offense categories in Rule 9.A.5 were eligible for restoration without a hearing if they remained crime- and arrest-free for fifteen years after completing all sentences and conditions of supervision. Fla. R. Exec. Clemency 9.A.6 (2004-2006). As with prior versions of the rules, ex-felons eligible for restoration without a hearing on any basis did not need to submit an application, unless they had been convicted in a court other than a Florida state court. Fla. R. Exec. Clemency 6, 9 (2004-2006). These changes created new avenues for ex-felons to regain their civil rights without a hearing, thus creating a way to restore the civil rights of more ex-felons.
37. In 2007, Governor Crist and the Board further amended the Rules of Executive Clemency to provide for an automatic path to restoration of civil rights for individuals who have completed all sentences and conditions of supervision,
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have no outstanding detainers or pending criminal charges, have paid all restitution, and have neither been convicted of one of twenty-five listed felonies or felony categories nor been declared a habitual violent felony offender, three-time violent felony offender, violent career criminal, prison release reoffender, or sexual predator under Florida law. Fla. R. Exec. Clemency 5.E, 9 (2007-2010). For qualifying exfelons, “automatic” restoration meant the Board’s grant of civil rights was nondiscretionary: “A person shall have his or her civil rights . . . immediately restored by automatic approval of the Clemency Board.” Fla. R. Exec. Clemency 9.A (20072010) (emphasis added). The Board would receive information from the Department of Corrections for all individuals who were eligible under Rule 9.A and automatically issue executive orders restoring their civil rights. Fla. R. Exec. Clemency 9.B (2007-2010).
38. Additionally, under the 2007 revised rules, discretionary grants of restoration of civil rights without a hearing remained available under Rule 10 for any ex-felon who met the same criteria as an ex-felon eligible for automatic restoration, unless they had been convicted of a felony within one of eleven disqualifying felony categories (narrowed down from the list in Rule 9) or declared a sexual predator. Fla. R. Exec. Clemency 10.A (2007-2010). Those who remained crime- and arrestfree for fifteen years could still seek restoration without a hearing, regardless of their offenses, but the availability of restoration without a hearing for those ex-felons who
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remained crime- and arrest-free for five years was eliminated. Fla. R. Exec. Clemency 10.B (2007-2010). Contrary to the prior default rule granting restoration unless Board members objected, the Governor plus two Board members would now have to grant restoration affirmatively to anyone on the preliminary review list. Fla. R. Exec. Clemency 10.C (2007-2010). Ex-felons eligible for automatic restoration or restoration without a hearing on any basis did not need to submit an application, unless they had been convicted in a court other a Florida state court. Fla. R. Exec. Clemency 6, 9, 10 (2007-2010). Finally, any individual not eligible for automatic restoration under Rule 9 or restoration without a hearing under Rule 10 would be compelled to submit an application for restoration with a hearing. Fla. R. Exec. Clemency 6, 9.B, 11 (2007-2010).
39. At the first Board meeting of Governor Scott’s administration on March 9, 2011, the Board voted unanimously to revise the Rules of Executive Clemency, establishing the arbitrary, time-consuming, and unreasonable restoration of civil rights process which is challenged in this action. The newly promulgated rules eliminated the automatic, non-discretionary restoration process for qualifying exfelons utilized by the previous administration and imposed strict waiting periods before ex-felons could apply for restoration of their civil rights without or with a hearing. Fla. R. Exec. Clemency 9-10. Those who committed what the Board deems less serious offenses must wait five years after the completion of their sentences to
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apply for restoration of civil rights, and those convicted of more serious felonies must wait seven years. Coupled with the fact that the Board only meets four times each year and only in Tallahassee, these waiting periods have caused the backlog of pending applications to grow to over 10,000. Upon information and belief, many applicants wait as many as ten years, if not more, for a hearing before the current Board. The 2011 revised rules also removed the path to restoration of civil rights without a hearing for those who have remained crime- and arrest-free for fifteen years and eliminated a longstanding provision allowing the Governor and one other Board member to waive the eligibility requirements in Rule 5, if at least two years had passed since the applicant was convicted and no restitution was owed. Fla. R. Exec. Clemency 8 (2000-2010). The Rules of Executive Clemency have not been modified since March 9, 2011.
B. Current Process for Restoration of Civil Rights 40. Under the current rules, an individual seeking the restoration of his or her civil rights must be eligible for that type of clemency and must submit an Application for Clemency. Fla. R. Exec. Clemency 5, 6, 9, 10. This was a significant change from prior versions of the rules, which allowed some ex-felons to regain their civil rights without submitting an application. The same Application for Clemency is used for all types of clemency: restoration of civil rights for a Florida, federal, military or out-of-state conviction, restoration of alien status under Florida
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law, remission of fine or forfeiture, specific authority to own, possess or use firearms, full pardon, and pardon without firearm authority.17
41. The Application for Clemency requires each applicant to provide basic demographic information as well as information and supporting documents on each felony conviction, including certified copies of the charging document, the judgment, and the sentence, community control or probation order. Fla. R. Exec. Clemency 6.B (2011). It can be quite time-consuming and costly for an applicant to procure these documents. Prior to the adoption of the current rules, applications seeking only the restoration of civil rights did not have to be accompanied by these supporting documents. Fla. R. Exec. Clemency 6.B (2000-2010).
i. Restoration of Civil Rights Without a Hearing 42. An individual is eligible to apply for restoration of civil rights without a hearing pursuant to Rule 9 “if the person has committed no crimes and has not been arrested for a misdemeanor or felony for five (5) years from the date of completion of all sentences and conditions of supervision imposed” and a number of other requirements are met. Fla. R. Exec. Clemency 9.A.18 The completion of all
17 Florida Commission on Offender Review, Application for Clemency, available at https://www.fcor.state.fl.us/docs/clemency/ClemencyApplication.pdf (last visited Mar. 9, 2017). 18 Even an arrest for a misdemeanor will reset the five-year clock or force the applicant to wait a total of seven years and apply for restoration with a hearing under Rule 10.
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sentences and conditions of supervision includes imprisonment, parole, probation, community control, control release, and conditional release. Fla. R. Exec. Clemency 9.A.1. The individual must have no outstanding detainers or pending criminal charges and must have paid all restitution and other financial obligations. Fla. R. Exec. Clemency 9.A.2, 9.A.3. Finally, the individual must not have been convicted of any crime on a lengthy list of felonies, including but not limited to murder, manslaughter, sexual batteries, drug trafficking and any other first- or second-degree drug offense. Fla. R. Exec. Clemency 9.A.4. This list was significantly expanded from prior versions of the rule governing discretionary restoration without a hearing.
43. All applications submitted for restoration of civil rights without a hearing are reviewed by the Florida Commission on Offender Review. Those applications that meet the requirements of Rule 9.A are included in the preliminary review list of individuals eligible for restoration without a hearing. If the Governor and two other members of the Board approve an individual’s restoration of civil rights within 60 days of the preliminary review list’s issuance, an executive order granting clemency is issued. If the Governor does not approve an applicant on the preliminary review list, the applicant is notified and may pursue restoration of civil rights with a hearing pursuant to Rule 10. Fla. R. Exec. Clemency 9.B.
ii. Restoration of Civil Rights With a Hearing
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44. An individual is eligible to apply for restoration of civil rights with a hearing pursuant to Rule 10 so long as there are “no new felony convictions for a period of seven (7) years or more after completion of all sentences imposed for the applicant’s most recent felony conviction and all conditions of supervision for the applicant’s most recent felony conviction have expired or been completed.” Fla. R. Exec. Clemency 10.A. Like an applicant for restoration of civil rights without a hearing, the individual must have paid all restitution and other financial obligations.
45. Each application for restoration of civil rights with a hearing must undergo an investigation by the Florida Commission on Offender Review which results in a report recommending the applicant favorably or unfavorably to the Board. Once all of these steps are completed, an applicant is placed on the agenda for the next Board hearing, and the applicant is provided with a notice of appearance. Fla. R. Exec. Clemency 11, 12. The Rules still provide that “[w]hile applicants are not required to appear at the hearing, the Clemency Board encourages applicants to attend.” Fla. R. Exec. Clemency 12.B.
46. The Board still only holds four hearings per year. Fla. R. Exec. Clemency 12.A. Over the last six years, the Board has heard an average of 52 applicants for restoration of civil rights per hearing. Each meeting is held in Tallahassee which requires many applicants to take two or more days off from work in order to attend and requires many to travel upwards of 500 miles to Tallahassee.
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47. At the meeting, each applicant is given five minutes to speak and essentially plead with the Board for clemency and the restoration of his or her civil rights. Fla. R. Exec. Clemency 12.B. The Board may grant or deny the applicant, continue the case until the next Board meeting, or take the application under advisement to make a final determination privately by mailing a letter. All applicants who are denied must wait a minimum of two years before reapplying. Fla. R. Exec. Clemency 14.
48. The Florida Rules of Executive Clemency do not set forth any rules governing the Board’s determinations. Rule 4 explicitly states that: “The Governor has the unfettered discretion to deny clemency at any time, for any reason.” Fla. R. Exec. Clemency 4.
C. Effect of the Current Restoration of Civil Rights Process in Florida
49. Since 2011, only 2,488 applications for restoration of civil rights have been granted by Defendants Scott, Bondi, Atwater, and Putnam. This number is dramatically lower than the number of applications granted during the previous two administrations: 155,315 during Governor Crist’s administration (2007-2011) and 73,508 during Governor Bush’s administration (1999-2007). Restoration of civil rights grants have declined steeply since Governor Scott assumed office in 2011: 1,428 (2001); 6,651 (2002); 14,836 (2003); 24,902 (2004); 11,638 (2005); 14,053 (2006); 38,971 (2007); 85,088 (2008); 25,347 (2009); 5,909 (2010); 78 (2011); 342
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(2012); 605 (2013); 562 (2014); 428 (2015); and 473 (2016). This drop-off is largely due to rule changes narrowing the number of ex-felons who are eligible for discretionary restoration without a hearing and the elimination of automatic, nondiscretionary restoration, combined with the glacial pace at which the Board processes applicants who require a hearing. The annual figures for restoration without a hearing demonstrate the severe impact of Governor Scott’s rules: 1,351 (2001); 6,539 (2002); 14,729 (2003); 24,797 (2004); 11,513 (2005); 13,862 (2006); 38,907 (2007); 85,075 (2008); 25,336 (2009); 5,893 (2010); 52 (2011); 298 (2012); 537 (2013); 504 (2014); 349 (2015); and 373 (2016).
50. Florida’s disenfranchised population is estimated at 1.68 million exfelons.19 10.4 percent of Florida’s voting-age population cannot vote due to a felony conviction.20 Florida’s disenfranchised population accounts for more than a quarter of all disenfranchised ex-felons in the country.21
51. The restoration of the right to vote for the 1.68 million disenfranchised former felons rests with the unfettered discretion of Governor Scott and the Board. For the few ex-felons who endure the extensive delays to secure a hearing in front of the Board, what follows is a thoroughly inconsistent and arbitrary process for granting or denying applications for restoration of civil rights.
19 See supra note 5 (Table 3). 20 Id. (Figure 2). 21 Id.
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52. Not only is the standard-less process prone to arbitrary and discriminatory treatment, but the Board actually does make decisions in a wholly
arbitrary manner. It grants and denies similarly situated applicants who have speeding or traffic citations, have voted illegally, or have similar post-release drug or alcohol use. These decisions turn on Governor Scott’s whim and the unregulated
judgments of the Board.
D. Unfettered Discretion and Arbitrary Treatment of Ex-Felon Applicants for Restoration of Voting Rights 53. Members of the Executive Clemency Board routinely emphasize that the Board is “a court of mercy,”22 and its determinations are untethered to any laws, rules, standards, criteria or constraints of any kind. The Board frequently refers to vague, amorphous standards such as whether the applicant has “turned [his or her] life around”23 or has shown remorse.24 At the December 7, 2016 Board hearing, Defendant Governor Scott stated: “Clemency is . . . is—there’s no standard. We can
22 Executive Clemency Board Hearing (June 24, 2015 at 00:03:27), available at http://thefloridachannel.org/videos/62415-executive-clemency-board-meeting/ (last visited Mar. 9, 2017). 23 Id. at 2:09:26; Executive Clemency Board Hearing (March 22, 2012 at 3:10:20), available at http://thefloridachannel.org/videos/32212-executive-clemency-boardmeeting/ (last visited March 8, 2017). 24 Executive Clemency Board Hearing (December 7, 2006) (transcript at 142); Executive Clemency Board Hearing (March 25, 2015 at 3:07:25), http://thefloridachannel.org/videos/32515-executive-clemency-board-meeting/ (last visited Mar. 9, 2017).
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do whatever we want. But it’s tied to what we said in the beginning, it’s tied to remorse.”25 Governor Scott has also cited the applicant’s “attitude” as a relevant criterion for his decisions.26 These ad hoc standards are both unascertainable and fatal to uniform application.
54. If disclosed, the Executive Clemency Board’s reasoning in granting or denying applications is purely arbitrary and may often be pretextual. Similarly situated individuals obtain diametrically opposite results based on the passing whims of the Board members, since nothing regulates their decision-making. Typically, the Board members probe applicants’ records for information relating to whether they are leading reformed lives. They focus on drug and alcohol use, traffic violations such as speeding or driving with a suspended license, illegal registration and voting, employment status, family and other perceived indicia of living a moral life or having “turned [one’s] life around,” according to the Board members’ beliefs.
55. One of the most frequent reasons Governor Scott cites for rejecting an application for restoration of civil rights is a record of traffic or moving violations. In these cases, Governor Scott usually states that speeding tickets, driving with a
25 Executive Clemency Board Hearing (December 7, 2016 at 2:02:00-2:02:07), available at http://thefloridachannel.org/videos/12716-executive-clemency-boardmeeting/ (last visited Mar. 9, 2017). 26 Executive Clemency Board Hearing (March 25, 2015 at 3:25-3:32), http://thefloridachannel.org/videos/32515-executive-clemency-board-meeting/ (last visited Mar. 9, 2017).
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suspended license or other traffic violations are indicative of an unwillingness to
abide by the law. That these are minor infractions, not felonies, and that the
constitutionally-protected right to vote hangs in the balance does not deter Governor
Scott and the other Board members from denying an application on this basis. For
instance, at a minimum, the following voting rights restoration applicants have been
denied due to their driving records: Eric Rodriguez-Schack (June 15, 2000);27 James
Lee Miller (March 2, 2006);28 Plaintiff James Michael Hand (December 16, 2011);29
Dennis Ortega Miller (March 22, 2012);30 Rex L. Carver (September 20, 2012);31
and Plaintiff Joseph James Galasso (March 20, 2013).32 However, in haphazard and
arbitrary fashion, the Board will sometimes grant applications, notwithstanding
equally lengthy records for the same moving violations. For example, the following
applicants were granted despite having a substantial or lengthy record of moving
violations, including speeding tickets: Mark Carston Addison (September 21,
27 Executive Clemency Board Hearing (June 15, 2000) (transcript at 85-91). 28 Executive Clemency Board Hearing (Mar. 2, 2006) (transcript at 263-65). 29 Executive Clemency Board Hearing (Dec. 16, 2011 at 2:20:08-2:30:40), available at http://thefloridachannel.org/videos/121611-executive-clemency-board-meeting/ (last visited Mar. 8, 2017). 30 Executive Clemency Board Hearing (Mar. 22, 2012 at 2:45:18-2:55:40), available at http://thefloridachannel.org/videos/32212-executive-clemency-board-meeting/ (last visited Mar. 8, 2017). 31 Executive Clemency Board Hearing (Sept. 20, 2012 at 2:17:10-2:21:40), available at http://thefloridachannel.org/videos/92012-executive-clemency-board-meeting/ (last visited Mar. 8, 2017). 32 Executive Clemency Board Hearing (Mar. 20, 2013) (audio only and not available online).
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2011);33 Tameka S. Jordan (March 22, 2012);34 Charles Douglas (December 13,
2012);35 Gaston Mirabal (December 13, 2012);36 Jeremy Lewis (September 25,
2013);37 Gregory Louis Hansen (December 12, 2013);38 Anthony Edward Manso
(December 12, 2013, despite “so many traffic tickets”);39 Richard Allen Slaughter
III (March 19, 2014);40 Nelson Thomas Cruz (June 18, 2014);41 Ronald Eugene
Thompson (June 18, 2014);42 Rene De Moya (December 10, 2014);43 Michael Anson
33 Executive Clemency Board Hearing (Sept. 21, 2011 at 1:51:04-2:01:23), available at http://thefloridachannel.org/videos/92111-executive-clemency-board-meeting/ (last visited Mar. 8, 2017) 34 Executive Clemency Board Hearing (Mar. 22, 2012 at 1:14:12-1:20:28), available at http://thefloridachannel.org/videos/32212-executive-clemency-board-meeting/ (last visited Mar. 8, 2017). 35 Executive Clemency Board Hearing (Dec. 13, 2012 at 1:22:00-1:26:30), available at http://thefloridachannel.org/videos/121312-executive-clemency-board-meeting/ (last visited Mar. 8, 2017). 36 Id. at 2:46:23-2:53:13. 37 Executive Clemency Board Hearing (Sept. 25, 2013 at 2:35:49-2:38:14), available at http://thefloridachannel.org/videos/92513-executive-clemency-board-meeting/ (last visited Mar. 8, 2017). 38 Executive Clemency Board Hearing (Dec. 12, 2013 at 2:18:54-2:20:05), available at http://thefloridachannel.org/videos/121213-executive-clemency-board-meeting/ (last visited Mar. 8, 2017). 39 Id. at 2:21:14-2:22:40. 40 Executive Clemency Board Hearing (Mar. 19, 2014 at 3:09:20-3:12:16), available at http://thefloridachannel.org/videos/031914-executive-clemency-board-meeting/ (last visited Mar. 8, 2017). 41 Executive Clemency Board Hearing (June 18, 2014 at 2:13:05-2:15:45), available at http://thefloridachannel.org/videos/61814-executive-clemency-board-meeting/ (last visited Mar. 8, 2017). 42 Id. at 2:48:14-2:49:39. 43 Executive Clemency Board Hearing (Dec. 10, 2014 at 3:19:30-3:23:05), available at http://thefloridachannel.org/videos/121014-executive-clemency-board-meeting/ (last visited Mar. 8, 2017).
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Smith (December 9, 2015);44 and Elizabeth Gonzalez (December 9, 2015).45 The reasons for this disparate treatment are elusive.
56. On occasion, the Board randomly imposes conditions on the restoration of civil rights to individuals with moving violations. The Board granted Tim Jones’s restoration application at the March 2, 2006 hearing, despite a “long list” of traffic violations, but delayed the restoration of his right to vote until he completed a year without a new moving violation.46 In June 24, 2015, Edwin Scheer, who had “the worst” traffic record the Board had seen, was also given a conditional grant but the probationary period was set at two years.47 Governor Scott and the other Board members never explain why these individuals are more worthy of restoration or why their lengthy list of traffic violations does not militate in favor of a denial until they no longer violate any traffic laws. On information and belief, conditional grants appear to be used only for applicants with records of moving violations. The Board acts in a wholly arbitrary fashion with uncontrolled, standard-less discretion to approve some applicants and deny others, even if these decisions cannot be
44 Executive Clemency Board Hearing (Dec. 9, 2015 at 1:29:57-1:41:26), available at http://thefloridachannel.org/videos/12915-executive-clemency-board-meetingpart-2/ (last visited Mar. 8, 2017). 45 Id. at 00:19:13-00:21:13. 46 Executive Clemency Board Hearing (Mar. 2, 2006) (transcript at 271-75). 47 Executive Clemency Board Hearing (June 24, 2015 at 1:08:59-2:12:31), available at http://thefloridachannel.org/videos/62415-executive-clemency-board-meeting/ (last visited Mar. 8, 2017).
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reconciled in any logical fashion to ensure any degree of horizontal equity across cases.
57. Some ex-felon restoration applicants are denied for drug use subsequent to the completion of their sentences. Others are granted, notwithstanding a record of post-sentence drug use. The Executive Clemency Board arbitrarily denies restoration applicants on the basis of subsequent drug use after the completion of the applicant’s sentence, regardless of whether the charges resulted in a conviction. Governor Scott and the other Board members routinely question applicants over their past and present drug use or lack thereof, even if drugs played no role in their criminal records. They especially probe the applicant’s drug use if he or she was convicted of a drug trafficking offense or if drug use played a role in the offense. These interrogations reveal how vulnerable the clemency process is to discrimination, including viewpoint discrimination.
58. Examples of arbitrary determinations abound when the Board is confronted with a record of subsequent drug use. At the December 9, 2015 Board hearing, Michael Lee Hazelwood’s application was denied after he admitted that he occasionally smokes marijuana because it helps him sleep,48 and Paul Antoine’s application was denied at the March 3, 2016 hearing because of a 2008 cocaine
48 Executive Clemency Board Hearing (Dec. 9, 2015 at 1:06:22-1:09:16), available at http://thefloridachannel.org/videos/12915-executive-clemency-board-meetingpart-2/ (last visited Mar. 8, 2017).
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possession charge, on which prosecutors took no action.49 At the December 16, 2011
Board hearing, Brandon Garth Bloch was denied in large part because of marijuana
possession in 2010 and post-sentence drug use.50 Additionally, some applicants are
even denied for drug use which precedes their sentences. For example, after his
hearing on December 9, 2015, Kevin Michael Grenier was denied restoration of his
civil rights because he had failed a drug test prior to his incarceration over 15 years
before his hearing, and because Board members believed that he had not finished a
court-ordered drug treatment program when he was 16 years old.51 However, at the
September 21, 2016 Board hearing, Roger Simon admitted to continued marijuana
use following his completed sentence for drug trafficking52 and, at the December
2016 hearing, Melissa Beth Ann-Miller admitted that she smoked marijuana as
recently as 2012.53 Despite these admissions of continued drug use, both Mr.
49 Executive Clemency Board Hearing (Mar. 3, 2016 at 00:42:06-00:45:23), available at http://thefloridachannel.org/videos/3316-executive-clemency-boardmeeting-part-3/ (last visited Mar. 8, 2017). 50 Executive Clemency Board Hearing (Dec. 16, 2011 at 1:50:26-2:07:47), available at http://thefloridachannel.org/videos/121611-executive-clemency-board-meeting/ (last visited Mar. 8, 2017). 51 Executive Clemency Board Hearing (Dec. 9, 2015 at 1:00:49-1:06:04), available at http://thefloridachannel.org/videos/12915-executive-clemency-board-meetingpart-2/ (last visited Mar. 8, 2017). 52 Executive Clemency Board Hearing (Sept. 21, 2016 at 4:05:15-4:11:05), available at http://thefloridachannel.org/videos/92116-executive-clemency-board-meetingpart-2/ (last visited Mar. 8, 2017). 53 Executive Clemency Board Hearing (Dec. 7, 2016 at 2:07:01-2:10:36), available at http://thefloridachannel.org/videos/12716-executive-clemency-board-meeting/ (last visited Mar. 8, 2017).
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Simon’s and Ms. Ann-Miller’s applications for restoration of civil rights were nevertheless granted. Similarly, at the September 20, 2012 hearing, Brian Ohle’s voting rights were restored notwithstanding the fact that he had used drugs in 2007 following his conviction for a crime committed while intoxicated.54 At the March 19, 2014 hearing, it was noted that Danny Cuesta, who had previously been convicted of a federal drug offense, was re-arrested in 2001 for possession of cocaine at a nightclub.55 Despite this fact, the Board restored Mr. Cuesta’s civil rights. Governor Scott will also arbitrarily ask certain applicants whether they still use drugs and then skip this question for others. It is impossible to reconcile all of these cases other than by reference to the passing whims of the Board members and the undisclosed reasons for rejecting particular applicants. An applicant’s race, ethnicity, religion, failure to identify with any religion, dress, manner of speech, as well as a guess as to the applicant’s political inclinations and views, might all play a role in these seemingly random denials. A system of absolute discretion in licensing is a license to discriminate.
54 Executive Clemency Board Hearing (Sept. 20, 2012 at 1:49:48-1:56:38), available at http://thefloridachannel.org/videos/92012-executive-clemency-board-meeting/ (last visited Mar. 8, 2017). 55 Executive Clemency Board Hearing (Mar. 19, 2014 at 2:11:37-1:13:59), available at http://thefloridachannel.org/videos/031914-executive-clemency-board-meeting/ (last visited Mar. 8, 2017).
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59. Alcohol use is another frequent focus of the Board members’ interrogations. The Executive Clemency Board arbitrarily denies applicants for
restoration of civil rights on the basis of subsequent alcohol use after the completion of the sentence. Restoration applicants routinely face questioning by Governor Scott and the other Board members over their use of alcohol, even if alcohol played no
role in their criminal record but especially if they were convicted of DUI manslaughter or any other offense in which intoxication played a substantial role. For some applicants who were previously convicted of DUI manslaughter, Governor Scott has zero tolerance for even infrequent, responsible drinking at social occasions
like weddings. At the June 2, 2011, December 13, 2012 and September 25, 2013 hearings, the Board denied Ronald Kessler,56 Brent Walter Rouse57 and Robert Allen Parsons’58 applications, respectively, citing their continued drinking following
sentences for DUI manslaughter, even if the applicants represented that their drinking was rare and responsible. For example, Governor Scott told Mr. Rouse that if he had his criminal background, he would never drink again: “[U]ntil you stop
56 Executive Clemency Board Hearing (June 2, 2011 at 1:39:41-1:46:22), available at http://thefloridachannel.org/videos/621111-executive-clemency-board-meeting/ (last visited Mar. 8, 2017). 57 Executive Clemency Board Hearing (Dec. 13, 2012 at 3:24:55-3:35:30), available at http://thefloridachannel.org/videos/121312-executive-clemency-board-meeting/ (last visited Mar. 8, 2017). 58 Executive Clemency Board Hearing (Sept. 25, 2013 at 4:16:34-4:21:42), available at http://thefloridachannel.org/videos/92513-executive-clemency-board-meeting/ (last visited Mar. 8, 2017).
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drinking I would never ever—if I was in an accident and somebody died I would never touch alcohol again.”59
60. At other times, Governor Scott questions applicants who were
intoxicated at the time of their offenses and, after confirming that their present
drinking is minimal, occasional and/or responsible, moves to grant the application.
For example, at the June 2, 2011 Board hearing, James Labossiere’s restoration
application was granted despite stating that he still drinks following his conviction for a crime he committed while intoxicated.60 At the March 22, 2012 hearing, the
Board restored Gerald Bryan Kelly’s voting rights even though he informed
Governor Scott that he drinks on occasion after having served time for a DUI manslaughter conviction.61 At the September 20, 2012 hearing, Brian Ohle’s
application was granted even though he admitted to both alcohol and drug use after
his conviction for his crime and as recently as five years prior to his hearing.62 At
59 Executive Clemency Board Hearing (Dec. 13, 2012 at 3:35:10), available at http://thefloridachannel.org/videos/121312-executive-clemency-board-meeting/ (last visited Mar. 8, 2017). 60 Executive Clemency Board Hearing (June 2, 2011 at 2:44:17-3:00:10), available at http://thefloridachannel.org/videos/621111-executive-clemency-board-meeting/ (last visited Mar. 8, 2017). 61 Executive Clemency Board Hearing (Mar. 22, 2012 at 2:20:56-2:33:07), available at http://thefloridachannel.org/videos/32212-executive-clemency-board-meeting/ (last visited Mar. 8, 2017). 62 Executive Clemency Board Hearing (Sept. 20, 2012 at 1:49:48-1:56:38), available at http://thefloridachannel.org/videos/92012-executive-clemency-board-meeting/ (last visited Mar. 8, 2017).
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the June 26, 2013 hearing, another DUI manslaughter ex-felon Ronald Burgess Kilpatrick’s application was granted, even though he drinks on occasion.63 Finally,
at the December 2016 hearing, Jason Lehlbeck, who was convicted of DUI reckless driving, was re-enfranchised despite his admission that he drinks about four to six drinks per week.64 Governor Scott’s zero tolerance policy for drinking by those
convicted of DUI crimes is randomly applied. It may be just another pretextual reason and it once again underscores the erratic, arbitrary nature of the Board’s decision-making.
61. The Executive Clemency Board has been similarly inconsistent in
handling applicants who have unlawfully registered and voted, even though in almost all cases the applicant represents that they did not do so knowingly. In 2011, Governor Scott rejected at least five different applicants because they had unlawfully
registered and voted as ex-felons, even when these individuals pleaded that they did not do so knowingly and that they were given misinformation by local and state officials. They include: Dorothy Tabb Bucknor (February 24, 2011);65 Leon Gillis
63 Executive Clemency Board Hearing (June 26, 2013 at 2:19:19-2:27:35), available at http://thefloridachannel.org/videos/62613-executive-clemency-board-meeting/ (last visited Mar. 8, 2017). 64 Executive Clemency Board Hearing (Dec. 7, 2016 at 2:48:08-2:53:55), available at http://thefloridachannel.org/videos/12716-executive-clemency-board-meeting/ (last visited Mar. 8, 2017). 65 Executive Clemency Board Hearing (Feb. 24, 2011 at 1:50:32-1:56:00), available at http://thefloridachannel.org/videos/22411-executive-clemency-board-meeting/ (last visited Mar. 8, 2017).
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III (June 2, 2011);66 Tiffany Paramore (December 16, 2011);67 Donald Charles Green (December 16, 2011);68 and Elston Roberto Joyner (December 16, 2011).69 For Ms. Paramore, Governor Scott said he would be more comfortable when she reapplied in two years, begging the question why the Board would excuse her illegal voting in two years, if it was unprepared to do so at the 2011 hearing. Following statements by Defendants CFO Atwater and Commissioner Putnam criticizing the Department of Corrections and the County Supervisors of Elections for their failure to educate ex-felons on their disenfranchisement, it appears Governor Scott’s Executive Clemency Board has not denied anyone solely for illegal voter registration and/or voting. However, upon information and belief, the Board did not seek to revisit and reverse the denials of those applicants rejected in 2011 for illegal voting. For those applicants, their uncorrected denials remain irreconcilable and arbitrary.
62. Since the fate of every applicant’s right to vote rests in the unconstrained discretion of four governmental officials, the clemency process is vulnerable to viewpoint discrimination including discrimination on the basis of
66 Executive Clemency Board Hearing (June 2, 2011 at 2:09:06-2:16:49), available at http://thefloridachannel.org/videos/621111-executive-clemency-board-meeting/ (last visited Mar. 8, 2017). 67 Executive Clemency Board Hearing (Dec. 16, 2011 at 3:10:13-3:19:59), available at http://thefloridachannel.org/videos/121611-executive-clemency-board-meeting/ (last visited Mar. 8, 2017). 68 Id. at 2:11:23-2:19:40. 69 Id. at 2:46:39-2:51:43.
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political party affiliation. There are no rules prohibiting such discriminatory treatment and no way to police the process for such discrimination because the Executive Clemency Board members do not always disclose their reasons for granting or denying an application. The Board can try to infer an applicant’s political leanings based on his or her statements, residence address, race or ethnicity and even perhaps information outside the case file presented by the Office of Clemency Investigations, and then act on that ulterior basis. Given these circumstances, it is unsurprising that certain applicants and their supporting witnesses make partisan appeals to the Governor and other Board members.
63. Applicants and witnesses on their behalf signal political leanings and policy preferences, sometimes quite explicitly. For instance, a 25-year veteran of law enforcement testified on behalf of Patrick Durden at the March 3, 2016 hearing, stating that Mr. Durden should be able “to vote, to be a part of the process—to be a part of the political process, whether it’s seeking office or to vote or to serve on a jury, this is the type of person that we want out there doing . . . Beyond his conservative views which are in all of our favor. . . .”70 Mr. Durden’s civil rights were restored. Some applicants have sought to curry favor by identifying themselves with the current Governor’s political party in subtle or more overt ways. These
70 Executive Clemency Board Hearing (Mar. 3, 2016 at 00:58:32-1:08:30), available at http://thefloridachannel.org/videos/3316-executive-clemency-board-meetingpart-3/ (last visited Mar. 9, 2017).
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statements may well make the difference or give board members a reason to grant an application, even though similarly situated applicants have been denied. A system of unregulated discretion to license ex-felons to vote allows current and future Board members of any political party to use the clemency power for partisan ends. Such a system is highly vulnerable to viewpoint discrimination, which can be easily camouflaged by a variety of stated, pretextual reasons for denying or granting particular applicants. At the December 12, 2013 hearing, applicant Stephen A. Warner was challenged on his recent illegal voting in 2010, and he responded by saying he had voted for Governor Scott: “I voted for you.” Notwithstanding the illegal voting on his record and the fact that other applicants had been denied on this basis in 2011, the Board proceeded to grant Mr. Warner’s application for restoration of civil rights.71 At the December 7, 2016 hearing, a Tallahassee police officer spoke in favor of Robert Arnold Martin’s application and also sought to appeal to the Board’s political preferences by stating “he is very conservative”—Mr. Martin’s application was granted.72 And at the June 24, 2015 Board hearing, Scott Moore
71 Executive Clemency Board Hearing (Dec. 12, 2013 at 3:47:38-3:50:19), available at http://thefloridachannel.org/videos/121213-executive-clemency-board-meeting/ (last visited Mar. 9, 2017). 72 Executive Clemency Board Hearing (Dec. 7, 2016 at 2:02:53-2:06:45), available at http://thefloridachannel.org/videos/12716-executive-clemency-board-meeting/ (last visited Mar. 9, 2017).
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regained his right to vote after his wife testified to “his conservative principles.”73 By contrast, on September 20, 2012, Rex L. Carver, a military veteran, spoke forcefully at his hearing on the injustice of felon disenfranchisement and the need to protect the fundamental right to vote.74 Discounting the evidence that Mr. Carver had indeed turned away from crime and was gainfully employed, Governor Scott simply noted that the applicant had a record of traffic violations and stated: “If you look at it from our standpoint, you look at it and you say, gosh this is an individual that doesn’t worry about complying with the law.”75 Mr. Carver’s application was denied. While these are examples from a Republican administration, in the future, the Executive Clemency Board may be controlled by a Democratic or Libertarian administration. From 1991 to 1998, Florida’s Governor was a Democrat. The problem with these discretionary restoration decisions exists no matter who is in office. This is precisely why politicians should not be given unfettered discretion to decide who can vote.
64. Further examples of the Board’s arbitrariness abound. Even though Governor Scott’s Executive Clemency Board adopted five- and seven-year waiting
73 Executive Clemency Board Hearing (June 24, 2015 at 2:37:47-2:42:51), available at http://thefloridachannel.org/videos/62415-executive-clemency-board-meeting/ (last visited Mar. 9, 2017). 74 Executive Clemency Board Hearing (September 20, 2012 at 2:17:10-2:21:40), available at http://thefloridachannel.org/videos/92012-executive-clemency-boardmeeting/ (last visited Mar. 9, 2017). 75 Id. at 2:21:08.
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periods before ex-felons could even apply for restoration of civil rights, the
Governor nevertheless frequently denies applicants by noting simply and cryptically
that “more time needs to pass.”76 There is no consistency in these snap
determinations as to what constitutes an adequate amount of time between the
completion of a sentence and re-enfranchisement. At the December 16, 2011
hearing, the Board noted it had been less than ten years since Timothy John Faulker77
and Plaintiff Harold William Gircsis, Jr.78 were released. At the June 2, 2011
hearing, Governor Scott told Anna McFarland Wood that she needs to be crime-free
for a longer period of time than four years,79 and he told Stephen Edward Crain that
he would like to wait a little longer.80 Every year applicants are denied because the
Governor on whim determines that not enough time has passed since the sentence
was completed: Shawn Hughes (December 16, 2011);81 Michael L. Price (March 22,
76 Executive Clemency Board Hearing (December 9, 2015 at 1:23:40-1:23:45), available at http://thefloridachannel.org/videos/12915-executive-clemency-boardmeeting-part-2/ (last visited Mar. 10, 2017). 77 Executive Clemency Board Hearing (December 16, 2011 at 1:24:01-1:24:58), available at http://thefloridachannel.org/videos/121611-executive-clemency-boardmeeting/ (last visited Mar. 9, 2017). 78 Id. at 1:25:01-1:26:03. 79 Executive Clemency Board Hearing (June 2, 2011 at 4:05:18-4:16:35), available at http://thefloridachannel.org/videos/621111-executive-clemency-board-meeting/ (last visited Mar. 9, 2017). 80 Id. at 2:02:04-2:08:23. 81 Executive Clemency Board Hearing (December 16, 2011 at 2:30:50-2:37:22), available at http://thefloridachannel.org/videos/121611-executive-clemency-boardmeeting/ (last visited Mar. 9, 2017).
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2012; “needs a little more time”);82 Luis Frederico Zouain (March 22, 2012; “it’s
only been eleven years”);83 Charles Williamson (December 13, 2012; “more time
ought to pass”);84 Virginia Atkins (June 26, 2013; “at this point I don’t feel
comfortable” despite her release from incarceration 10 years earlier);85 and Gene
Alan Rothstein (December 12, 2013; “more time needs to pass”).86 At the March
19, 2014 Board hearing, Governor Scott denied Vinicio Marmolejos’s application,
telling him that he had started heading in the right direction but that he would “like
more time to change your life and to show that you have changed.”87 Governor Scott
and the other Board members effectively substitute their own judgment for that of
the courts and the Florida Commission on Offender Review which decide how long
a criminal sentence or period of post-sentence supervision should be. The Board is
82 Executive Clemency Board Hearing (March 22, 2012 at 3:06:48-3:10:38), available at http://thefloridachannel.org/videos/32212-executive-clemency-boardmeeting/ (last visited Mar. 9, 2017). 83 Id. at 3:17:32-3:22:48. 84 Executive Clemency Board Hearing (December 13, 2012 at 3:46:23-3:51:31), available at http://thefloridachannel.org/videos/121312-executive-clemency-boardmeeting/ (last visited Mar. 9, 2017). 85 Executive Clemency Board Hearing (June 26, 2013 at 2:52:17-2:56:02), available at http://thefloridachannel.org/videos/62613-executive-clemency-board-meeting/ (last visited Mar. 9, 2017). 86 Executive Clemency Board Hearing (December 12, 2013 at 3:21:53-3:26:52), available at http://thefloridachannel.org/videos/121213-executive-clemency-boardmeeting/ (last visited Mar. 9, 2017). 87 Executive Clemency Board Hearing (March 19, 2014 at 2:52:51-2:55:20), available at http://thefloridachannel.org/videos/031914-executive-clemency-boardmeeting/ (last visited Mar. 9, 2017).
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essentially given the unchecked power to indefinitely extend a sentence when it comes to that ex-felon’s civil rights.
65. Finally, the Executive Clemency Board also arbitrarily enforces its own rules for processing and adjudicating clemency applications. As previously noted, an applicant for restoration of civil rights is only eligible for restoration without a hearing under Rule of Executive Clemency 9, if he or she has not been convicted of a crime on a list of selected felonies. Fla. R. Exec. Clemency 9.A.4. Otherwise, if the applicant has been convicted of a felony on that list, he or she must be processed under Rule of Executive Clemency 10, which requires a seven-year waiting period and a hearing. Plaintiff William Bass has recently been denied for restoration without a hearing and referred to the Office of Clemency Investigations for an investigation and ultimately a hearing on his application. However, the requirements of Rules 9 and 10 seem to be arbitrarily waived for certain applicants. Roderick Kemp, who – on information and belief – had pled guilty to a second-degree felony for possession with intent to deliver under FLA. STAT. ANN. §§ 893.13(1)(a)(1), 893.03(2)(a) back in 1986 and who had applied for a pardon in 2015, suddenly received a letter in the mail with an enclosed certificate announcing his civil rights had been restored by executive order dated January 13, 2017. While Mr. Kemp has waited much more than 5 or 7 years after completing his sentence, no hearing had ever been scheduled for his case, and he was granted restoration without a hearing,
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even though individuals convicted of “second degree felonies described in F.S. Chapter 893” are ineligible for restoration without a hearing under Rule 9. The Executive Clemency Board’s selective leniency and fast-tracking in this case appears to be a direct result of the fact that Mr. Kemp’s case had garnered public attention in the media and a recent documentary film produced by the Florida Center for Investigative Reporting. Of course, not all of the estimated 1.68 million disenfranchised ex-felons in Florida will be able to garner media attention if that compels the Board’s attention and a waiver of its own rules. Similarly, the Board sometimes creates ad hoc rules. At the March 3, 2016 hearing, the Board denied two applicants and imposed a 50-year waiting period before they could reapply, effectively disenfranchising applicant David Bruce Easterling – who was 54 years old at the time – for life.88
CLASS ACTION ALLEGATIONS PLAINTIFF CLASS (COUNTS 1-3) 66. Plaintiffs bring this action on behalf of themselves and all those similarly situated pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(2). The Plaintiff Class is defined as:
88 Executive Clemency Board Hearing (March 3, 2016 at 1:08:37-1:16:23), available at http://thefloridachannel.org/videos/3316-executive-clemency-board-meetingpart-3/ (last visited Mar. 9, 2017).
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Any current or future resident of the State of Florida who is a United States citizen, at least 18 years of age, not disqualified under the mental incapacitation provisions in FLA. CONST. art. VI, § 4(a) and FLA. STAT. ANN. § 97.041(2)(a), who is disenfranchised under Florida state law by reason of a prior felony conviction under FLA. CONST. art. VI, § 4(a) and FLA. STAT. ANN. § 97.041(2)(b) and who has completed his or her full sentence for all felony convictions including any period of parole, probation, supervised release and/or community control and any other condition of supervision.
67. It is estimated that 1.68 million Floridians are disenfranchised by reason
of a prior felony conviction.89 10,513 applicants for restoration of civil rights were
pending in the Executive Clemency Board’s backlog as of March 1, 2017. More ex-
felons complete their sentences including parole, probation and/or supervised release
every month. According to the Florida Department of Corrections, “[a]pproximately
39,727 (46.1%) offenders completed their sentences successfully” in FY 2014-
2015.90 In FY 2015-2016, the Office of Executive Clemency received 6,462
clemency applications.91
68. Questions of law are common to the class including: (1) whether
Florida state law governing felon disenfranchisement and re-enfranchisement by

89 See supra note 5 (Table 3).

90 Florida Department of Corrections, Annual Report Fiscal Year 2014-2015, at 54,

available at http://www.dc.state.fl.us/pub/annual/1415/FDC_AR2014-15.pdf (last

visited Mar. 10, 2017).

91 Florida Commission on Offender Review: 2015-2016 Annual Report, at 8,

available

at

https://www.fcor.state.fl.us/docs/reports/FCORannualreport201516.pdf (last visited

Mar. 9, 2017).

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way of the Executive Clemency Board’s restoration process violates the First Amendment’s guarantee against prior restraints vesting government officials with unfettered discretion to arbitrarily issue or deny licenses or permits to engage in speech, association and/or any other activity or conduct protected by the First Amendment to the United States Constitution; (2) whether Florida state law governing felon disenfranchisement and re-enfranchisement violates the Fourteenth Amendment’s prohibition on arbitrary allocation of the franchise; and (3) whether the lack of any definite time limits in Florida state law governing felon disenfranchisement and re-enfranchisement for processing and making decisions on applications for the restoration of voting rights violates the First Amendment requirement that government officials authorized to license speech, association and/or any other activity or conduct protected by the First Amendment to the United States Constitution process applications and make their determinations within a defined time period. The factual questions that are relevant to these three legal questions reflecting Claims 1, 2 and 3 are all common to the class and will have answers that are common to the class as a whole as well.
69. Plaintiffs’ claims are typical of the class. Since this is a facial challenge to a set of unconstitutional laws and procedures, Plaintiffs all suffer the same constitutional injury regardless of whether their applications for restoration of civil rights have been denied, are still pending or have not yet been filed. All the Plaintiffs
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and all members of the proposed Plaintiff Class are subjected to a set of felon disenfranchisement and re-enfranchisement laws and procedures which condition the restoration of their First Amendment-protected right to vote on the unfettered discretion of the Executive Clemency Board. As a consequence of this unlawful prior restraint, all Plaintiffs’ voting rights are subject to the Board’s unconstitutionally arbitrary decision-making or arbitrary allocation of the franchise; and all Plaintiffs are subjected to a scheme which lacks definite time limits on the licensing authority’s ultimate determinations.
70. Plaintiffs will fairly and adequately represent the interests of all members of the proposed class because they seek relief on behalf of the class as a whole and have no interests antagonistic to other members of the class. Plaintiffs, like other members of the proposed Plaintiff Class, face a set of felon disenfranchisement and re-enfranchisement laws and procedures which condition the restoration of their First Amendment-protected right to vote on the unconstitutionally unfettered discretion of government officials, a voter-licensing scheme which arbitrarily allocates the franchise and lacks any time limits on the processing and adjudication of applications. They seek to have FLA. CONST. art. VI, § 4(a), FLA. STAT. ANN. § 97.041(2)(a), FLA. CONST. art. VI, § 4, FLA. CONST. art. IV, § 8, FLA. STAT. ANN. § 944.292(1) and the Florida Rules of Executive Clemency declared unlawful and permanently enjoined so that upon any ex-felon’s completion
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of his or her full sentence including any period of parole, probation and/or supervised release, he or she will be automatically and immediately restored to his or her voting rights. This will obviate the need – pursuant to FLA. CONST. art. VI, § 4(a), FLA. STAT. ANN. § 97.041(2)(a), FLA. CONST. art. VI, § 4, FLA. CONST. art. IV, § 8, FLA. STAT. ANN. § 944.292(1) and the Florida Rules of Executive Clemency – to petition the Executive Clemency Board for and secure the restoration of their voting rights by a full pardon, conditional pardon or restoration of civil rights pursuant to Art. IV, Sec. 8 of the Florida Constitution.
71. Proposed class counsel will fairly and adequately represent the class. Proposed class counsel is experienced with civil rights litigation, including voting rights cases and class actions.
72. Defendants have acted and will continue to act on grounds generally applicable to the Plaintiff Class in requiring disenfranchised ex-felons – pursuant to FLA. CONST. art. VI, § 4(a), FLA. STAT. ANN. § 97.041(2)(a), FLA. CONST. art. VI, § 4, FLA. CONST. art. IV, § 8, FLA. STAT. ANN. § 944.292(1) and the Florida Rules of Executive Clemency – to petition the Executive Clemency Board for and secure the restoration of voting rights by a full pardon, conditional pardon, or restoration of civil rights granted pursuant to Art. IV, Sec. 8 of the Florida Constitution, before they can register to vote and vote. Final declaratory and injunctive relief is appropriate with respect to the Plaintiff Class.
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SUBCLASS A (COUNT 4)
73. Plaintiff Yraida Leonides Guanipa seeks to represent a subclass
(Subclass A), which is a subset of the Plaintiff Class and defined as:
Any current or future resident of the State of Florida who is a United States citizen, at least 18 years of age, not disqualified under the mental incapacitation provisions in FLA. CONST. art. VI, § 4(a) and FLA. STAT. ANN. § 97.041(2)(a), who is disenfranchised under Florida state law by reason of a prior felony conviction under FLA. CONST. art. VI, § 4(a) and FLA. STAT. ANN. § 97.041(2)(b) and who has completed his or her full sentence for all felony convictions including any period of parole, probation, supervised release and/or community control and any other condition of supervision, but who has not yet waited 5 or 7 years – whichever is applicable to the individual – since the completion of his or her sentence as required to apply for restoration of civil rights under Florida Rules of Executive Clemency 9 and 10, respectively.
74. Again, it is estimated that 1.68 million Floridians are disenfranchised
by reason of a prior felony conviction.92 10,513 applicants for restoration of civil
rights were pending in the Executive Clemency Board’s backlog as of March 1,
2017. More ex-felons complete their sentences including parole, probation and/or
supervised release every month. According to the Florida Department of
Corrections, “[a]pproximately 39,727 (46.1%) offenders completed their sentences
successfully” in FY 2014-2015.93 Accordingly, at a minimum, there are at least tens
92 See supra note 5 (Table 3). 93 Florida Department of Corrections, Annual Report Fiscal Year 2014-2015, at 54, available at http://www.dc.state.fl.us/pub/annual/1415/FDC_AR2014-15.pdf (last visited Mar. 10, 2017).
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of thousands of Subclass A members who have not yet completed their 5- or 7-year waiting periods following the completion of their sentences in accordance with Florida Rules of Executive Clemency 9 and 10.
75. Questions of law and fact are common to Subclass A including: whether the requirement under Florida Rules of Executive Clemency 9 and 10 for ex-felons to wait 5 or 7 years following sentence completion before applying for restoration of voting rights, constitutes an undue burden on the right to vote not justified by the state’s interests and therefore violates the First and Fourteenth Amendments to the U.S. Constitution. These waiting periods are “severe restriction[s]” which are not “narrowly drawn to advance a state interest of compelling importance.” Burdick v. Takushi, 504 U.S. 428, 434 (1992). Even if the Court were to find they constitute “reasonable, nondiscriminatory restrictions,” they are not justified by “the State’s important regulatory interests.” Id. The balancing of the restriction against the state’s interests is a common question of fact and law for the entirety of Subclass A, since the burden of the 5- and 7-year waiting periods after the completion of a sentence does not vary from subclass member to subclass member. Each Subclass A member suffers the same injury in being required effectively to serve an unnecessary, de facto second sentence before applying for the restoration of his or her voting rights.
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76. Plaintiff Yraida Leonides Guanipa’s claim is typical of Subclass A’s members’ claims under Count Four. Subclass A members all suffer the same injury of being forced to endure an unnecessary, de facto second sentence before applying for restoration of their voting rights. Ms. Guanipa and all members of the proposed Subclass A are subjected to the severe restriction of a pre-application 5- or 7-year waiting period, which is not narrowly drawn to advance a state interest of compelling importance. Nor does it further an important regulatory interest.
77. Plaintiff Yraida Leonides Guanipa will fairly and adequately represent the interests of all members of the proposed subclass because she seeks relief on behalf of Subclass A as a whole and has no interests antagonistic to other members of the subclass. Ms. Guanipa, like other members of proposed Subclass A, faces an unconstitutionally severe restriction in the waiting period requirements imposed by the Executive Clemency Board in 2011. Ms. Guanipa and the members of proposed Subclass A seek to have the 5- and 7-year waiting period requirements imposed in Florida Rules of Executive Clemency 9 and 10 declared unlawful and permanently enjoined as undue burdens on the right to vote in violation of the First and Fourteenth Amendments to the U.S. Constitution.
78. Proposed class counsel will fairly and adequately represent the class. Proposed class counsel is experienced with civil rights litigation, including voting rights and First Amendment cases.
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79. Defendants have acted and will act on grounds generally applicable to Subclass A in requiring disenfranchised ex-felons who have completed their full sentences to wait 5 or 7 years, pursuant to Florida Rules of Executive Clemency 9 and 10, respectively, before applying for the restoration of their voting rights. Final declaratory and injunctive relief is appropriate with respect to Subclass A.
CLAIMS COUNT ONE (All Plaintiffs and Plaintiff Class) (Unfettered Official Discretion and Arbitrary Treatment in Violation of First Amendment to the United States Constitution and 42 U.S.C. § 1983) 80. The factual allegations contained in the preceding paragraphs are incorporated into Count One, as though fully set forth herein. 81. Plaintiffs assert a claim pursuant to 42 U.S.C. § 1983 for violation of the First Amendment to the U.S. Constitution. 82. The First Amendment provides that: “Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” U.S. CONST. amend. I, § 1. 83. The First Amendment protects the right to vote because voting is both a form of speech or expressive conduct and a means of political association. Doe v. Reed, 561 U.S. 186, 195-96 & n.1 (2010); id. at 224 (Scalia, J., concurring) (“We have acknowledged the existence of a First Amendment interest in voting . . .”)
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(citing Burdick v. Takushi, 504 U.S. 428 (1992)); California Democratic Party v. Jones, 530 U.S. 567, 574 (2000); Timmons v. Twin Cities Area New Party, 520 U.S. 351, 354-57 (1997); McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 341-43 (1995); Burdick v. Takushi, 504 U.S. 428, 434, 437-39 (1992); Norman v. Reed, 502 U.S. 279, 288-90 (1992); Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 214-17 (1986); Munro v. Socialist Workers Party, 479 U.S. 189, 193, 199 (1986); Anderson v. Celebrezze, 460 U.S. 780, 787-89 (1983); Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184 (1979); Storer v. Brown, 415 U.S. 724, 728-29 (1974); Kusper v. Pontikes, 414 U.S. 51, 56-58 (1973); Williams v. Rhodes, 393 U.S. 23, 30-31 (1968). Because registration is a prerequisite to and/or enables voting in primary and general elections, it too is protected by the First Amendment. See Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 400 (2000) (Breyer, J., concurring) (“[A] decision to contribute money to a campaign is a matter of First Amendment concern—not because money is speech (it is not); but because it enables speech.”) (emphasis in original).
84. The First Amendment forbids vesting government officials with unfettered discretion to issue or deny licenses or permits to engage in any First Amendment-protected speech, expressive conduct, association or any other protected activity or conduct. Forsyth Cnty., Ga. v. Nationalist Movement, 505 U.S. 123, 130-33 (1992) (“The First Amendment prohibits the vesting of such unbridled
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discretion in a government official.”); City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 763-64 (1988) (“[A] law or policy permitting communication in a certain manner for some but not for others raises the specter of content and viewpoint censorship. This danger is at its zenith when the determination of who may speak and who may not is left to the unbridled discretion of a government official.”); Shuttlesworth v. City of Birmingham, Ala., 394 U.S. 147, 153 (1969) (“[A government] may not empower its licensing officials to roam essentially at will, dispensing or withholding permission to speak, assemble, picket, or parade according to their own opinions regarding the potential effect of the activity in question on the ‘welfare,’ ‘decency,’ or ‘morals’ of the community.”); Cox v. State of Louisiana, 379 U.S. 536, 554-58 (1965); Staub v. City of Baxley, 355 U.S. 313, 322 (1958) (“It is settled by a long line of recent decisions of this Court that an ordinance which, like this one, makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official—as by requiring a permit or license which may be granted or withheld in the discretion of such official—is an unconstitutional censorship or prior restraint upon the enjoyment of those freedoms.”); Niemotko v. State of Md., 340 U.S. 268, 271-73 (1951) (striking down prior restraint on use of parks, noting that hearing focused on “alleged refusal to salute the flag, their views on the Bible, and other issues irrelevant to unemcumbered [sic] use of the public parks” and that Mayor testified applicant’s
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demeanor at hearing doomed application); Saia v. People of State of New York, 334 U.S. 558, 560-62 (1948) (striking down prior restraint scheme of “uncontrolled discretion” to grant or deny permits for use of loud-speakers) (“Annoyance at ideas can be cloaked in annoyance at sound.”).
85. Similarly, the First Amendment requires that any time, place and manner regulation not be arbitrary or arbitrarily administered. If decisions as to the time, place and manner of voting are left to the whims of government officials, then the regulation is invalid. “A government regulation that allows arbitrary application is ‘inherently inconsistent with a valid time, place, and manner regulation because such discretion has the potential for becoming a means of suppressing a particular point of view.’” Forsyth Cnty., 505 U.S. at 130-31 (quoting Heffron v. Int’l Soc’y for Krishna Consciousness, Inc., 452 U.S. 640, 649 (1981)); Poulos v. State of New Hampshire, 345 U.S. 395, 405-08 (1953). Florida’s felon disenfranchisement and re-enfranchisement laws together operate as an invalid prior restraint, not a valid time, place and manner regulation.
86. Defendant-Members of the Executive Clemency Board are vested with the authority to deny or grant applications for the restoration of civil rights but its discretion in issuing licenses to vote is absolute. The Board’s decisions are unconstrained by any laws or rules and guided by only the vaguest and most
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subjective of uncodified standards. This scheme therefore constitutes an unconstitutional prior restraint.
87. First Amendment doctrine does not require plaintiffs to demonstrate actual evidence of discriminatory and/or arbitrary treatment. The risk of such discriminatory and/or arbitrary treatment in the absence of any constraints is sufficient. Forsyth Cnty., 505 U.S. at 133 n.10; City of Lakewood, 486 U.S. at 76970. Nevertheless, this Complaint has alleged numerous actual instances of arbitrary and/or discriminatory treatment which directly result from a procedure marked by unconstrained official discretion in the restoration of voting rights to ex-felons.
88. FLA. CONST. art. VI, § 4(a), FLA. STAT. ANN. § 97.041(2)(a), FLA. CONST. art. VI, § 4, FLA. CONST. art. IV, § 8, FLA. STAT. ANN. § 944.292(1) and the Florida Rules of Executive Clemency require that an ex-felon obtain the Executive Clemency Board’s permission in order to regain his or her right to vote, and therefore function as a prior restraint on First Amendment-protected voting. Florida state law and administrative rules and procedures contain no constraints on the Board’s discretionary power to grant or deny applications for the restoration of voting rights, making the system prone to arbitrary or discriminatory treatment. As a licensing scheme of standard-less, unfettered official discretion, it violates the First Amendment to the U.S. Constitution.
89. At all relevant times, Defendants have acted under color of state law.
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90. Defendants, acting under color of state law, have deprived and will continue to deprive Plaintiffs and the Plaintiff Class of their right to be free from unconstitutional prior restraints and/or unconstitutional time, place and manner regulations in seeking the restoration of their voting rights. This right is guaranteed to Plaintiffs and the Plaintiff Class by the First Amendment to the U.S. Constitution and 42 U.S.C. § 1983.
COUNT TWO (All Plaintiffs and Plaintiff Class) (Arbitrary Allocation of the Franchise in Violation of Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and 42 U.S.C.
§ 1983) 91. The factual allegations contained in the preceding paragraphs are incorporated into Count Two, as though fully set forth herein. 92. Plaintiffs assert a claim pursuant to 42 U.S.C. § 1983 for violation of the Fourteenth Amendment to the U.S. Constitution. 93. The Fourteenth Amendment to the U.S. Constitution forbids states from “deny[ing] to any person within its jurisdiction the equal protection of the laws.” U.S. CONST. amend. XIV, § 1. 94. The Equal Protection Clause of the Fourteenth Amendment protects the right to vote and applies to both “the initial allocation of the franchise” and “the manner of its exercise.” Bush v. Gore, 531 U.S. 98, 104 (2000).
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95. Defendant-Members of the Executive Clemency Board are vested with the authority to deny or grant applications for the restoration of civil rights. The board’s discretion in allocating the franchise to ex-felons is absolute and purely arbitrary in that the Board’s decisions are unconstrained by any laws or rules.
96. Not only is this restoration scheme prone to arbitrary treatment but this Complaint has alleged numerous actual instances of “arbitrary and disparate treatment,” Bush v. Gore, 531 U.S. at 104, which is the inevitable result of a voting rights restoration or licensing scheme devoid of any legal constraints on official discretion.
97. FLA. CONST. art. VI, § 4(a), FLA. STAT. ANN. § 97.041(2)(a), FLA. CONST. art. VI, § 4, FLA. CONST. art. IV, § 8, FLA. STAT. ANN. § 944.292(1) and the Florida Rules of Executive Clemency require that an ex-felon obtain the Executive Clemency Board’s permission in order to regain his or her right to vote, and therefore turn over the allocation of the franchise to the arbitrary determinations of state officials. Florida state law and administrative rules and procedures do not in any way regulate or limit the Board’s discretionary authority to grant or deny applications for the restoration of voting rights. As a voter licensing scheme of standard-less, unfettered official discretion, it also violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution.
98. At all relevant times, Defendants have acted under color of state law.
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99. Defendants, acting under color of state law, have deprived and will continue to deprive Plaintiffs and the Plaintiff Class of their right to non-arbitrary treatment in the state government’s allocation of the right to vote to ex-felons. This right is guaranteed to Plaintiffs and the Plaintiff Class by the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution and 42 U.S.C. § 1983.
COUNT THREE (All Plaintiffs and Plaintiff Class) (Lack of Definitive Time Limits for Determinations on Voting Rights Restoration Applications in Violation of the First Amendment to the United States Constitution and 42 U.S.C. § 1983) 100. The factual allegations contained in the preceding paragraphs are incorporated into Count Three, as though fully set forth herein. 101. Plaintiffs assert a claim pursuant to 42 U.S.C. § 1983 for violation of the First Amendment to the U.S. Constitution. 102. The First Amendment provides that: “Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” U.S. CONST. amend. I, § 1. 103. The First Amendment protects the right to vote because voting is both a form of speech or expressive conduct and a means of political association. Doe v. Reed, 561 U.S. 186, 195-96 & n.1 (2010); id. at 224 (Scalia, J., concurring) (“We have acknowledged the existence of a First Amendment interest in voting . . .”)
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(citing Burdick v. Takushi, 504 U.S. 428 (1992)); California Democratic Party v. Jones, 530 U.S. 567, 574 (2000); Timmons v. Twin Cities Area New Party, 520 U.S. 351, 354-57 (1997); McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 341-43 (1995); Burdick v. Takushi, 504 U.S. 428, 434, 437-39 (1992); Norman v. Reed, 502 U.S. 279, 288-90 (1992); Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 214-17 (1986); Munro v. Socialist Workers Party, 479 U.S. 189, 193, 199 (1986); Anderson v. Celebrezze, 460 U.S. 780, 787-89 (1983); Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184 (1979); Storer v. Brown, 415 U.S. 724, 728-29 (1974); Kusper v. Pontikes, 414 U.S. 51, 56-58 (1973); Williams v. Rhodes, 393 U.S. 23, 30-31 (1968). Because registration is a prerequisite to and/or enables voting in primary and general elections, it too is protected by the First Amendment. See Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 400 (2000) (Breyer, J., concurring) (“[A] decision to contribute money to a campaign is a matter of First Amendment concern—not because money is speech (it is not); but because it enables speech.”) (emphasis in original).
104. First Amendment doctrine clearly holds that “a prior restraint that fails to place limits on the time within which the decisionmaker must issue the license is impermissible.” FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 226 (1990) (citing Freedman v. State of Maryland, 380 U.S. 51, 59 (1965)). “Where the licensor has unlimited time within which to issue a license, the risk of arbitrary suppression is as
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great as the provision of unbridled discretion. A scheme that fails to set reasonable time limits on the decisionmaker creates the risk of indefinitely suppressing permissible speech.” Id. at 227; see also Riley v. Nat’l Fed’n of the Blind of North Carolina, Inc., 487 U.S. 781, 802 (1988) (“[D]elay compels the speaker’s silence. Under these circumstances, the licensing provision cannot stand.”); United States v. Frandsen, 212 F.3d 1231, 1238-40 (11th Cir. 2000).
105. Florida’s Executive Clemency Board is not bound by any reasonable, definite time limits in processing and reaching final decisions on applications for the restoration of civil rights. Florida state law and the Rules of Executive Clemency are devoid of any such time limits for granting or denying ex-felon applicants their right or license to vote.
106. Upon information and belief, ex-felon applicants for restoration of voting rights may wait as many as ten years to finally receive notice of a hearing and/or a determination on their applications. The backlog stood at 10,513 applicants as of March 1, 2017. Other restoration applicants may be scheduled for a hearing within months of applying. Though the significant backlog of applicants is making longer delays more common, the Executive Clemency Board and the Office of Executive Clemency may still process individual restoration applications at their own chosen speed and may deliberately fast-track selective applicants while delaying others.
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107. Since no provision in Florida state law, including the Rules of Executive Clemency, requires the Board to process and adjudicate an application for restoration of civil rights within a definite, reasonable time period, FLA. CONST. art. VI, § 4(a), FLA. STAT. ANN. § 97.041(2)(a), FLA. CONST. art. VI, § 4, FLA. CONST. art. IV, § 8, FLA. STAT. ANN. § 944.292(1) and the Florida Rules of Executive Clemency create the risk of arbitrary delays and arbitrary continued disenfranchisement and therefore violate the First Amendment.
108. FLA. CONST. art. VI, § 4(a), FLA. STAT. ANN. § 97.041(2)(a), FLA. CONST. art. VI, § 4, FLA. CONST. art. IV, § 8, FLA. STAT. ANN. § 944.292(1) and the Florida Rules of Executive Clemency require that an ex-felon obtain the Executive Clemency Board’s permission in order to regain his or her right to vote, and therefore function as a prior restraint on First Amendment-protected voting. Florida state law and administrative rules and procedures contain no time constraints on the Board’s processing of and determinations regarding applications for the restoration of voting rights, making the system prone to arbitrary treatment. As a scheme of standardless, unfettered official discretion with no reasonable time limits, Florida’s voting rights restoration process violates the First Amendment to the U.S. Constitution.
109. At all relevant times, Defendants have acted under color of state law. 110. Defendants, acting under color of state law, have deprived and will continue to deprive Plaintiffs and the Plaintiff Class of their right to an ex-felon
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voting rights restoration scheme with definite time limits on the Board’s ultimate
determinations, which is guaranteed to Plaintiffs and the Plaintiff Class by the First
Amendment to the U.S. Constitution and 42 U.S.C. § 1983.
COUNT FOUR (Plaintiff Yraida Leonides Guanipa and Subclass A) (Undue Burden on the Right to Vote in Violation of the First and Fourteenth Amendments to the U.S. Constitution and 42 U.S.C. § 1983)
111. The factual allegations contained in the preceding paragraphs are
incorporated into Count Four, as though fully set forth herein.
112. Under the First and Fourteenth Amendments to the U.S. Constitution,
any burden on the right to vote must be balanced against a state’s interest in that
requirement. The Supreme Court has set forth the following test:
[T]he rigorousness of our inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights. Thus, as we have recognized when those rights are subjected to “severe” restrictions, the regulation must be “narrowly drawn to advance a state interest of compelling importance.” Norman v. Reed, 502 U.S. 279, 289, 112 S.Ct. 698, 705, 116 L.Ed.2d 711 (1992). But when a state election law provision imposes only “reasonable, nondiscriminatory restrictions” upon the First and Fourteenth Amendment rights of voters, “the State’s important regulatory interests are generally sufficient to justify” the restrictions. Anderson, 460 U.S., at 788, 103 S.Ct., at 1569–1570; see also id., at 788–789, n. 9, 103 S.Ct., at 1569–1570, n. 9.
Burdick v. Takushi, 504 U.S. 428, 434 (1992).
113. Florida Rules of Executive Clemency 9 and 10 impose 5- and 7-year
waiting periods, respectively, on ex-felons who seek to regain their right to vote. An
ex-felon must wait out this de facto second sentence before he or she can even apply
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for restoration of his or her right to vote. This is a severe restriction on the right to vote which is not justified by or narrowly drawn to any state interest of compelling importance. At a minimum though, the pre-application waiting periods restrict the right to vote but cannot be justified by any important regulatory interest.
114. These ex-felons have already served their court-imposed sentences including any period of parole, probation, supervised release and/or community control. Additionally, applicants for restoration of civil rights often languish in the Executive Clemency Board’s backlog for years after they apply. Therefore, the state’s interest in imposing an additional waiting period before the disenfranchised ex-felon can apply for re-enfranchisement is neither compelling nor important.
115. Florida Rules of Executive Clemency 9 and 10 impose severely restrictive waiting periods on Plaintiff Yraida Leonides Guanipa and Subclass A members before they can even seek the Executive Clemency Board’s permission in order to regain their voting rights. Since these waiting periods are not justified by any compelling or important state interest, they violate the First and Fourteenth Amendments to the U.S. Constitution.
116. But for the waiting periods imposed by Florida Rules of Executive Clemency 9 and 10, Plaintiff Ms. Guanipa and Subclass A members would be able to apply to the Executive Clemency Board for the restoration of their voting rights upon the completion of their sentence, including any period of parole, probation,
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supervised release and/or community control. At present, they are barred from applying until 5 or 7 additional years elapse and therefore deprived of even an opportunity to regain their voting rights.
117. At all relevant times, Defendants have acted under color of state law. 118. Defendants, acting under color of state law, have unduly burdened and will continue to unduly burden Plaintiff Yraida Leonides Guanipa and Subclass A members’ rights to vote, thereby depriving them of an opportunity to regain their voting rights. The right to vote free of undue burdens is guaranteed to Plaintiff Ms. Guanipa and Subclass A by the First and Fourteenth Amendments to the U.S. Constitution and 42 U.S.C. § 1983.
PRAYER FOR RELIEF Plaintiffs, the Plaintiff Class, and Subclass A respectfully request that this Court: (a) Assume jurisdiction over this matter; (b) Certify this matter as a class action pursuant to Rules 23(a) and 23(b)(2)
of the Federal Rules of Civil Procedure; (c) Appoint counsel as class counsel pursuant to Federal Rule of Civil
Procedure 23(g); (d) Declare that Florida’s requirement in FLA. CONST. art. VI, § 4(a), FLA.
STAT. ANN. § 97.041(2)(a), FLA. CONST. art. VI, § 4, FLA. CONST. art. IV,
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§ 8, FLA. STAT. ANN. § 944.292(1) and the Florida Rules of Executive Clemency that a disenfranchised ex-felon must petition the Governor and his Cabinet sitting as the Executive Clemency Board for the restoration of his or her right to vote, violates the First and Fourteenth Amendments to the United States Constitution as to the right to vote; (e) Issue a permanent injunction, enjoining Defendants Governor of Florida Rick Scott, Attorney General of Florida Pam Bondi, Chief Financial Officer of Florida Jeff Atwater, Commissioner of Agriculture Adam H. Putnam, the members of the State Executive Clemency Board, Secretary of State Ken Detzner, Secretary of the Department of Corrections Julie L. Jones, Commissioner and Chair of the Florida Commission on Offender Review Melinda N. Coonrod, Commissioner of the Florida Commission on Offender Review Richard D. Davison, Commissioner of the Florida Commission on Offender Review David A. Wyant, and Coordinator for the Office of Executive Clemency of the Florida Commission on Offender Review Julia McCall, their respective agents, officers, employees, successors, and all persons acting in concert with them (collectively, “Defendants”) from enforcing FLA. CONST. art. VI, § 4(a), FLA. STAT. ANN. § 97.041(2)(a), FLA. CONST. art. VI, § 4, FLA. CONST. art. IV, § 8, FLA.
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STAT. ANN. § 944.292(1) and the Florida Rules of Executive Clemency as to Plaintiff Class members’ right to vote; (f) Issue a permanent injunction, enjoining Defendants from requiring Plaintiff Class members to petition the Executive Clemency Board for and secure the restoration of their voting rights – pursuant to FLA. CONST. art. VI, § 4(a), FLA. STAT. ANN. § 97.041(2)(a), FLA. CONST. art. VI, § 4, FLA. CONST. art. IV, § 8, FLA. STAT. ANN. § 944.292(1) and the Florida Rules of Executive Clemency. (g) Issue a permanent injunction, enjoining Defendants from denying any member of the Plaintiff Class the right to register to vote and cast a ballot in the State of Florida on the grounds of his or her prior felony convictions; (h) Issue a permanent injunction requiring Defendants Governor of Florida Rick Scott, Attorney General of Florida Pam Bondi, Chief Financial Officer of Florida Jeff Atwater, Commissioner of Agriculture Adam H. Putnam, the members of the State Executive Clemency Board, their respective agents, officers, employees, successors, and all persons acting in concert with them, to revise the Florida Rules for Executive Clemency, the Application for Clemency, and the Executive Clemency Board’s website to reflect that Plaintiff Class members may register to vote and vote upon completion of their sentences;
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(i) Issue a permanent injunction requiring Defendant Secretary of State Detzner, his respective agents, officers, employees, successors, and all persons acting in concert with him, including but not limited to all of Florida’s County Supervisors of Elections, to revise all paper and electronic materials including the Florida Voter Registration Application, the Secretary of State’s website, and the County Supervisors of Elections websites to reflect that Plaintiff Class members may register to vote and vote upon completion of their sentences; to provide revised training and guidance for the County Supervisors of Elections and their staff on the judgment in this case; to e-mail and mail notices to the County Supervisors of Elections announcing the judgment in this case; and to issue a directive to the County Supervisors of Elections ordering them not to reject the voter registration applications of any Plaintiff Class members on account of their prior felony convictions;
(j) Issue a permanent injunction requiring Secretary of the Department of Corrections (“DOC”) Julie L. Jones, her respective agents, officers, employees, successors, and all persons acting in concert with her, to inform all individuals released from DOC custody with no further period of parole, probation, supervised release and/or community control that they can register to vote and vote; to inform all individuals released from DOC
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custody subject to a period of parole, probation, supervised release and/or community control that they will be able to register to vote and vote once they complete their sentences including parole, probation, supervised release and/or community control; and on a monthly basis, to send to the Florida Secretary of State’s office and the Florida Commission on Offender Review e-mailed and paper copies of the full list of names and personally identifying information of all ex-felons who have completed their sentences including any period of parole, probation, supervised release and/or community control in the previous month; (k) Issue a permanent injunction requiring Commissioner and Chair of the Florida Commission on Offender Review Melinda N. Coonrod, Commissioner of the Florida Commission on Offender Review Richard D. Davison and Commissioner of the Florida Commission on Offender Review David A. Wyant, their respective agents, officers, employees, successors, and all persons acting in concert with them, to ensure all communications with ex-felons inform all pending and new applicants for restoration of civil rights that their rights to vote have been automatically restored upon completion of sentence, their applications are moot as to the right to vote but not as to the right to serve on a jury or the right to run for public office, and that they are now qualified to register to vote and vote
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in the State of Florida; and directing the Commissioners to revise the website of the Florida Commission on Offender Review to reflect the judgment in this case; (l) Issue a permanent injunction requiring Coordinator for the Office of Executive Clemency of the Florida Commission on Offender Review Julia McCall, her respective agents, officers, employees, successors, and all persons acting in concert with her, to inform all pending and new applicants for restoration of civil rights that their rights to vote have been automatically restored upon completion of their sentences, their applications are moot as to the right to vote but not as to the right to serve on a jury or the right to run for public office, and that they are now qualified to register to vote and vote in the State of Florida; (m) In the alternative – and only if the Court rules in favor of Plaintiffs solely on Count Four – declare the 5- and 7-year waiting periods in Florida Rules of Executive Clemency 9 and 10 unconstitutional in violation of the First and Fourteenth Amendments to the U.S. Constitution as to members of Subclass A of the Plaintiff Class; permanently enjoin the enforcement of these requirements by Defendants as to members of Subclass A of the Plaintiff Class; and require the Florida Department of Corrections, Commission on Offender Review and Office of Executive Clemency to
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revise all communications, materials, websites, applications and any other

relevant internal or public-facing documents and/or materials to reflect that

Subclass A members may apply for restoration of their voting rights upon

completion of their sentences;

(n) Retain jurisdiction to enforce its order;

(o) Grant Plaintiffs their reasonable attorneys’ fees and costs incurred in

bringing this action pursuant to 42 U.S.C. § 1988, 28 U.S.C. § 1920, and

as otherwise permitted by law; and

(p) Grant such other relief as this Court deems just and proper.

DATED: March 13, 2017

Respectfully submitted,

/s/ Brittnie R. Baker

Brittnie R. Baker Florida Bar No. 119058 D.C. Bar No. 1033708 Jon Sherman* D.C. Bar No. 998271 New York Bar No. 4697348 Tiffany Davis** New York Bar No. 5248000 Fair Elections Legal Network 1825 K St. NW, Suite 450 Washington, DC 20006 jsherman@fairelectionsnetwork.com bbaker@fairelectionsnetwork.com tdavis@fairelectionsnetwork.com Phone: (202) 331-0114

Theodore Leopold Florida Bar No. 705608
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Diana L. Martin Florida Bar No. 624489 Cohen Milstein Sellers & Toll PLLC 2925 PGA Boulevard | Suite 200 Palm Beach Gardens, FL 33410 phone 561.515.1400 fax 561.515.1401 *Pro Hac Vice to Practice in the United States District Court for the Northern District of Florida to Be Filed ** Pro Hac Vice to Practice in the United States District Court for the Northern District of Florida to Be Filed and Working Under the Direct Supervision of an Enrolled, Active Member of the District of Columbia Bar
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 Case 4:17-cv-00128-MW-CAS Document 29 Filed 04/27/17 Page 1 of 82

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION

JAMES MICHAEL HAND,

)

JOSEPH JAMES GALASSO,

)

HAROLD W. GIRCSIS, JR.,

)

CHRISTOPHER MICHAEL SMITH, )

WILLIAM BASS, JERMAINE

)

JOHNEKINS, VIRGINIA KAY )

ATKINS, JAMES LARRY EXLINE, )

YRAIDA LEONIDES GUANIPA, )

on behalf of themselves and others )

similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

)

RICK SCOTT, in his official capacity )

as Governor of Florida and member )

of the State of Florida’s Executive )

Clemency Board, PAM BONDI, in )

her official capacity as Attorney )

General of Florida and member of the )

Executive Clemency Board, JEFF )

ATWATER, in his official capacity )

as Chief Financial Officer and

)

member of the Executive Clemency )

Board, ADAM H. PUTNAM, in his )

official capacity as Commissioner of )

Agriculture and member of the

)

Executive Clemency Board, KEN )

DETZNER, in his official capacity as )

Secretary of State of Florida, JULIE )

L. JONES, in her official capacity as )

Secretary of the Department of

)

Corrections, MELINDA N.

)

COONROD, in her official capacity )

Civil No. 4:17-cv-00128-MW-CAS
FIRST AMENDED CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1

Case 4:17-cv-00128-MW-CAS Document 29 Filed 04/27/17 Page 2 of 82

as Commissioner and Chair of the )

Florida Commission on Offender )

Review, RICHARD D. DAVISON, )

in his official capacity as

)

Commissioner of the Florida

)

Commission on Offender Review, )

DAVID A. WYANT, in his official )

Capacity as Commissioner of the )

Florida Commission on Offender )

Review, JULIA McCALL, in her )

official capacity as Coordinator for )

the Office of Executive Clemency of )

the Florida Commission on Offender )

Review,

)

)

Defendants.

)

)

FIRST AMENDED CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Plaintiffs James Michael Hand, Joseph James Galasso, Harold W. Gircsis, Jr.,

Christopher Michael Smith, William Bass, Jermaine Johnekins, Virginia Kay

Atkins, James Larry Exline and Yraida Leonides Guanipa (collectively, “Plaintiffs”)

seek declaratory and injunctive relief and allege as follows:

NATURE OF ACTION

1. Florida is one of just four states which deny the right to vote to all

convicted former felons until they successfully petition for the restoration of their

civil rights. Kentucky, Iowa and Virginia are the only other states that consign the

voting rights of all convicted former felons (hereinafter “disenfranchised ex-felons”

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or “ex-felons”) to the unrestrained discretion of public officials.1 This class action challenges Florida’s disenfranchisement and re-enfranchisement laws, which have made the process of voting rights restoration unconstitutionally arbitrary.
2. Disenfranchised ex-felons who have completed their sentences and who seek to regain their voting rights in Florida must petition the Executive Clemency Board (or “the Board”), which is comprised of the Governor of Florida, the Attorney General, the Chief Financial Officer and the Commissioner of Agriculture. Fla. R. Exec. Clemency 1. The decision whether to grant or deny an ex-felon’s restoration application rests with the unfettered discretion of these four Board members. The application must be approved by a majority of the Board members and the Governor must be included in the majority.
3. While the Rules of Executive Clemency set forth a procedure for applications to the Board, there are no laws, rules or regulations governing the Board’s determinations, which remain wholly arbitrary. Rule 4 explicitly provides that: “The Governor has the unfettered discretion to deny clemency at any time, for any reason.” Fla. R. Exec. Clemency 4. Defendant Governor Rick Scott frequently
1 While Virginia’s current administration is restoring the voting rights of ex-felons who have completed their sentences including parole and probation, the state laws have not been changed. In some states, ex-felons convicted of certain felonies or multiple felonies continue to be disenfranchised following the completion of their sentences and must petition a court or state officials to regain their voting rights. See, e.g., ARIZ. REV. STAT. ANN. §§ 13-905, 13-906; NEV. REV. STAT. ANN. § 213.155.
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states that the Executive Clemency Board acts as a “court of mercy”2 and underscores that the Board is not bound by any law in making its decisions. Frequently the Board members state that they are looking to see if someone has “turned [his or her] life around” and if the applicant has shown remorse. By way of example, Governor Scott opened the March 3, 2016 hearing with the following declaration of limitless discretion: “This is a board of clemency. Ok? There is no law we’re following. The law has already been followed by the judges. So we get to make our decisions based on our own beliefs.”3 With such vague, shifting standards based on personal beliefs, applicants may be denied for any reason, including a record of traffic violations, an admission to drinking alcohol or recreational drug use, or no reason at all, just a state official’s whim, impression or gut instinct. Applicants may also be granted for any reason, including the testimony of family members, friends or pastors, an applicant’s demeanor or dress, the expression of political views which Board members favor, or no reason at all, just a state official’s whim, impression or gut instinct.
2 The Statement of Policy that opens the Florida Rules of Executive Clemency asserts that: “Clemency is 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.” Fla. R. Exec. Clemency 1. 3 Executive Clemency Board Hearing (March 3, 2016 at 00:04:25), available at http://thefloridachannel.org/videos/3316-executive-clemency-board-meeting-part1/ (last visited Mar. 9, 2017).
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4. The risk of viewpoint discrimination is highest when a government official’s discretion to authorize or reject First Amendment-protected activity is entirely unconstrained by law. In this context, officials may deny restoration of the right to vote on pretextual grounds while secretly basing their decision on the applicant’s race, professions of faith (or lack thereof) or speculation as to the applicant’s political affiliation or views. This is why – under longstanding Supreme Court precedent – conditioning the enjoyment of a fundamental constitutional right on the exercise of unfettered official discretion and arbitrary decision-making imposes a prior restraint and violates the First Amendment to the United States Constitution. This arbitrary allocation of the franchise also violates the Equal Protection Clause of the Fourteenth Amendment.
5. Furthermore, no laws, rules or regulations set any time limits on the Board to act on an ex-felon’s application for restoration of civil rights in Florida. Board hearings are held only four times per year and only in Tallahassee. The Board only hears an average of 52 restoration of civil rights cases per quarterly meeting. Under the current set of rules adopted back in 2011, the Executive Clemency Board has imposed an unjustifiable further roadblock to restoration of voting rights, forcing ex-felons who have completed their sentences to wait an additional five or seven years following the completion of their sentence before they can even apply for restoration of voting rights. Upon information and belief, it is common for an
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applicant to wait as many as ten years, if not more, without any update from the Board before he or she is finally given a hearing date or notified the application was denied or granted without a hearing. This delay is exacerbated by the existing backlog of applications, which – as of March 1, 2017 – stood at 10,513 pending applications.4 The lack of a definite time limit for the adjudication of an ex-felon’s application for restoration of voting rights also violates the First Amendment to the United States Constitution. The waiting period imposes a second sentence above and beyond that imposed by a federal or state judge and a severe restriction on exfelons seeking to regain their voting rights, which is not narrowly tailored to any legitimate government interest and therefore violates the First and Fourteenth Amendments to the U.S. Constitution.
6. The Executive Clemency Board’s restoration process has always been an unconstitutional obstacle to regaining the right to vote but this problem has become particularly acute since Defendant Governor Scott took office in 2011 and changed the rules to require lengthy waiting periods. The Governor has also exercised his unbridled power over clemency procedures to reduce the number of civil rights restoration applications which are processed annually and reject
4 On September 1, 2016, this figure was 10,588. The backlog has only decreased by 75 pending applications in six months, demonstrating that the current system has both caused Florida’s disenfranchised population to grow to 1.68 million – an estimated 1.48 million of whom have completed their sentences – and is utterly unsuited to addressing the ever-worsening problem.
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tremendous numbers of ex-felon applicants. The data shows that the number of civil rights restoration applications granted each year has dramatically declined since Governor Scott assumed office in 2011: 1,428 (2001); 6,651 (2002); 14,836 (2003); 24,902 (2004); 11,638 (2005); 14,053 (2006); 38,971 (2007); 85,088 (2008); 25,347 (2009); 5,909 (2010); 78 (2011); 342 (2012); 605 (2013); 562 (2014); 428 (2015); and 473 (2016). As a result, Florida now has an estimated 1.68 million disenfranchised ex-felons5 or 10.43 percent of the state’s voting-age population— both the highest total and the highest rate in the nation.6
7. Plaintiffs bring this action under 42 U.S.C. § 1983 against Defendants’ unlawful deprivation of Plaintiffs’ rights under the First and Fourteenth Amendments to the United States Constitution.
8. Plaintiffs James Michael Hand, Joseph James Galasso, Harold W. Gircsis, Jr., Christopher Michael Smith, William Bass, Jermaine Johnekins, Virginia Kay Atkins and James Larry Exline are disenfranchised ex-felons who have applied for restoration of their civil rights by the Board. All but one of their applications have been denied; William Bass’s application is pending in the backlog. Plaintiff
5 Christopher Uggen, Ryan Larson and Sarah Shannon, 6 Million Lost Voters: State-Level Estimates of Felony Disenfranchisement, The Sentencing Project (2016) (Table 3), available at http://www.sentencingproject.org/wpcontent/uploads/2016/10/6-Million-Lost-Voters.pdf#page=17 (last visited Mar. 7, 2017). 6 Id. (Figure 2).
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Yraida Leonides Guanipa is not yet eligible to apply for restoration of her civil rights because seven years have not elapsed since she completed her sentence.
JURSIDICTION AND VENUE 9. This Court has jurisdiction over Plaintiffs’ federal claims pursuant to 28 U.S.C. §§ 1331 and 1343 because this case arises under the United States Constitution and seeks equitable and other relief for the deprivation of constitutional rights under color of state law. 10. This Court has jurisdiction to award attorneys’ fees and costs pursuant to 42 U.S.C. § 1988 and 28 U.S.C. § 1920. 11. This Court has jurisdiction to grant declaratory relief pursuant to 28 U.S.C. §§ 2201 and 2202. 12. This Court has personal jurisdiction over Defendants Rick Scott, the Governor of Florida, Defendant Attorney General Pam Bondi, Chief Financial Officer Jeff Atwater and Commissioner of Agriculture Adam Putnam, the members of the Cabinet and the Executive Clemency Board, who are sued in their official capacities. Defendant Board Members Governor Scott, Bondi, Atwater and Putnam are elected state government officials who reside and work in Tallahassee, Florida. 13. This Court has personal jurisdiction over Defendant Ken Detzner, Secretary of State of Florida, who is sued in his official capacity. Defendant Detzner is an appointed state official who resides and works in Tallahassee, Florida.
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14. This Court has personal jurisdiction over Defendant Julie L. Jones, who is sued in her official capacity as the Secretary of the Department of Corrections. Defendant Jones is an appointed state official who resides and works in Tallahassee, Florida.
15. This Court has personal jurisdiction over Defendant Melinda N. Coonrod, who is sued in her official capacity as Commissioner and Chair of the Florida Commission on Offender Review (formerly the Florida Parole and Probation Commission), and Richard D. Davison and David A. Wyant, who are also both sued in their official capacities as Commissioners of the Florida Commission on Offender Review. Defendants Coonrod, Davison and Wyant are appointed state officials who reside and work in Tallahassee, Florida.
16. This Court has personal jurisdiction over Defendant Julia McCall, who is sued in her official capacity as Coordinator for the Office of Executive Clemency of the Florida Commission on Offender Review. Defendant McCall is a state official appointed by the Governor and Cabinet, who resides and works in Tallahassee, Florida.
17. Venue is appropriate in the Northern District of Florida, under 28 U.S.C. § 1391(b)(1), because Defendants Scott, Bondi, Atwater, Putnam, Detzner, Jones, Coonrod, Davison, Wyant and McCall are state officials working in Tallahassee, Florida. A substantial part of the events giving rise to these claims
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occurred and will continue to occur in this district, making venue also proper under 28 U.S.C. § 1391(b)(2).
PARTIES 18. Plaintiff James Michael Hand is a United States citizen, 63 years old, and a resident of Cutler Bay, Florida. Mr. Hand was convicted of at least one felony in Florida state court and lost his right to vote under Florida state law. In 1986, Mr. Hand was released from prison, and he completed his sentence in 2002. After he completed his sentence, Mr. Hand applied to the Board for the restoration of his civil rights. At an Executive Clemency Board hearing on December 16, 2011, his application was denied. In rejecting his application, Governor Scott cited Mr. Hand’s record of moving or traffic violations and said the following: “Congratulations on turning your life around. Congratulations on your business. In light of the significant issue—you know, traffic violations, and your inability to comply with the law in that manner, I’m going to deny you restoration of civil rights at this time.”7 19. Plaintiff Joseph James Galasso is a United States citizen, 46 years old, and a resident of Gainesville, Florida. Mr. Galasso was convicted of at least one felony in Florida state court and lost his right to vote under Florida state law. Mr.
7 Executive Clemency Board Hearing (Dec. 16, 2011 at 2:20:08-2:30:40), available at http://thefloridachannel.org/videos/121611-executive-clemency-board-meeting/ (last visited Mar. 8, 2017).
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Galasso completed his sentence, including probation, in January 2004. After he was released from prison in 2001, he applied to the Executive Clemency Board for the restoration of his civil rights and had to wait twelve years before he was finally scheduled for a hearing. The Florida Commission on Offender Review’s Office of Clemency Investigations did not begin its investigation of Mr. Galasso’s case until roughly a decade after he applied. At a Board hearing on March 20, 2013, his application was taken under advisement. Defendant Governor Scott said: “So you’ve really turned your life around. You’ve been out of prison eleven years and you’ve got all these traffic violations. . . . You’ve turned your life around but if you— if you really don’t care about the law and you have all these traffic violations it’s hard to say gosh you really believe in the law.” Soon after the hearing, Mr. Galasso received a letter notifying him that his application had been denied.8
20. Plaintiff Harold W. Gircsis, Jr. is a United States citizen, 64 years old, and a resident of Port Charlotte, Florida. Mr. Gircsis was convicted of at least one felony in the U.S. District Court for the District of Minnesota and lost his right to vote under Florida state law. Mr. Gircsis completed his sentence, including probation, on October 15, 2003. In 2006, he applied to the Executive Clemency
8 Executive Clemency Board Hearing (Mar. 20, 2013) (audio only and not available online).
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Board for the restoration of his civil rights but was not given a hearing date until 2011. At a Board hearing on December 16, 2011, his application was denied.9
21. Plaintiff Christopher Michael Smith is a United States citizen, 43 years old, and a resident of Miami, Florida. Mr. Smith was convicted of at least one felony in Florida state court and lost his right to vote under Florida state law. Mr. Smith completed his sentence in 1997. In 2006, he applied to the Executive Clemency Board for the restoration of his civil rights. In 2011, Mr. Smith refiled his application because it had been pending for five years. The Office of Executive Clemency contacted Mr. Smith to inform him that his application was still pending and that he did not need to refile it. In the spring of 2016, the Board notified Mr. Smith that he had been scheduled for a hearing in September. At a Board hearing on September 21, 2016, his application was taken under advisement.10 About a week later, Mr. Smith received a letter notifying him that his restoration application had been denied.
22. Plaintiff William Bass is a United States citizen, 64 years old, and a resident of St. Petersburg, Florida. Mr. Bass was convicted of at least one felony in Florida state court and lost his right to vote under Florida state law. Mr. Bass

9 Executive Clemency Board Hearing (December 16, 2011 at 1:25:01-1:26:03),

available at http://thefloridachannel.org/videos/121611-executive-clemency-board-

meeting/ (last visited Mar. 9, 2017).

10 Executive Clemency Board Hearing (September 21, 2016 at 4:23:03-

4:29:37), available

at http://thefloridachannel.org/videos/92116-executive-

clemency-board-meeting-part-2/ (last visited Mar. 10, 2017).

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completed his sentence in 2008. In either 2011 or 2012, he applied to the Executive Clemency Board for the restoration of his civil rights. Mr. Bass subsequently contacted the Office of Executive Clemency, and they informed him that he had to wait five to seven years after completing his sentence before he could apply for restoration. Prior to the 2016 general election, Mr. Bass refiled his application, which remains pending in the backlog of applications before the Executive Clemency Board. Mr. Bass recently received a letter from the Florida Commission on Offender Review’s Office of Executive Clemency dated January 20, 2017, notifying him that the Executive Clemency Board did not approve him for restoration of civil rights without a hearing. The letter advised him that his case had been referred to the Florida Commission on Offender Review for a full investigation and ultimately a hearing. Mr. Bass was informed that he could also choose to withdraw his application and a “Notice of Withdrawal of Clemency Application” form was enclosed with the letter. Mr. Bass will not withdraw his restoration of civil rights application.
23. Plaintiff Jermaine Johnekins is a United States citizen, 44 years old, and a resident of Pembroke Pines, Florida. Mr. Johnekins was convicted of at least one felony in Florida state court and lost his right to vote under Florida state law. Mr. Johnekins was sentenced to a work-release program for nine and a half months, which he completed in 1998. In early 2012, he applied to the Executive Clemency
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Board for the restoration of his civil rights. At a Board hearing on March 22, 2012, his application was denied.11
24. Plaintiff Virginia Kay Atkins is a United States citizen, 63 years old, and a resident of Quincy, Florida. Mrs. Atkins was convicted of at least one felony in Florida state court and lost her right to vote under Florida state law. In 2003, Mrs. Atkins was released from prison, completing her sentence. After she completed her sentence, Mrs. Atkins applied to the Executive Clemency Board for the restoration of her civil rights. At a Board hearing on June 26, 2013, her application was denied. In rejecting her application, Governor Scott said the following: “First off, thanks for your work for the state. At this point I don’t feel comfortable giving you your restoration of civil rights but, congratulations on your working and congratulations on your daughter.”12
25. Plaintiff James Larry Exline is a United States citizen, 52 years old, and a resident of West Palm Beach, Florida. Mr. Exline was convicted of at least one felony in the U.S. District Court for the Southern District of Florida and lost his right to vote under Florida state law. In 2008, Mr. Exline was released from prison, and

11 Executive Clemency Board Hearing (March 22, 2012 at 2:08:33-

2:13:44), available

at http://thefloridachannel.org/videos/32212-executive-

clemency-board-meeting/ (last visited Mar. 20, 2017).

12 Executive Clemency Board Hearing (June 13, 2013 at 2:52:19-2:56:06), available

at http://thefloridachannel.org/videos/62613-executive-clemency-board-

meeting/ (last visited Apr. 26, 2017).

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he completed his sentence in 2009. After he completed his sentence, Mr. Exline applied to the Executive Clemency Board for restoration of his civil rights. In April 2012, three years after his initial application to the Board, Mr. Exline was notified that he was no longer eligible to apply for restoration of civil rights due to the March 9, 2011 changes to the Rules of Executive Clemency and that he would be eligible to submit his application five years after the completion of his sentence. In May 2014, Mr. Exline submitted his second application for restoration of civil rights. Almost two years later, in April 2016, Mr. Exline was notified that the Board would not grant his application without a hearing. Following the investigation, Mr. Exline was given a hearing on March 15, 2017, and the Executive Clemency Board took his application under advisement. In a letter dated March 20, 2017, Mr. Exline was notified that the Board had subsequently denied his application.
26. Plaintiff Yraida Leonides Guanipa is a United States citizen, 55 years old, and a resident of Miami, Florida. In 1996, Ms. Guanipa was convicted of at least one felony in the U.S. District Court for the Southern District of Florida. She was released from prison in June 2007 and completed probation in June 2012. Under the Executive Clemency Board’s current rules, Ms. Guanipa is barred from applying for the restoration of her civil rights until June 2019, seven years after the completion of her full sentence.
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27. Plaintiffs want to register and vote in future primary and general elections in the State of Florida for candidates of their choice and ballot initiatives, and to support and associate with political parties in order to advance the parties’ goals.
28. Defendant Rick Scott is the Governor of Florida and is sued in his official capacity. The Florida Constitution vests the Governor with the authority to restore civil rights. FLA. CONST. art. IV § 8(a). The Governor heads the Executive Clemency Board, which is tasked with promulgating the Rules of Executive Clemency and making final determinations on all restoration of civil rights cases. FLA. STAT. ANN. § 940.03. The Governor is empowered to restore civil rights by executive order. FLA. STAT. ANN. § 940.01(1). The Governor may join with two other Board members to grant an application for restoration of civil rights or deny the application outright because he or she must be in the majority for any grant. Id.; FLA. STAT. ANN. § 940.03; Fla. R. Exec. Clemency 4.
29. Defendants Pam Bondi, Jeff Atwater and Adam Putnam, the remaining members of the Cabinet and the Executive Clemency Board, are sued in their official capacities. Fla. R. Exec. Clemency 1. As members of the Board, they have the power to grant or deny an application for restoration of civil rights by either concurring in the Governor’s motion to grant or withholding their support. Fla. R. Exec. Clemency 4.
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30. Defendant Ken Detzner is the Secretary of State of Florida and is sued in his official capacity. As Secretary of State, Defendant Detzner is Florida’s chief elections officer and administers Florida’s election laws. FLA. STAT. ANN. § 97.012. The Secretary of State is responsible for obtaining and maintaining uniformity in the interpretation and implementation of the election laws, providing uniform standards for the proper and equitable implementation of the registration laws by administrative rule, providing technical assistance to the 67 county supervisors of elections on voter education and election personnel training, and providing written direction and opinions to the county supervisors of elections on the performance of their official duties with respect to the Florida Election Code or rules adopted by the Department of State. FLA. STAT. ANN. §§ 97.012(1), (2), (5) and (16). The Department of State periodically receives information relating to voter eligibility due to felony conviction, restoration of civil rights, death, and adjudication of mental incapacity. This information, which is provided by the United States Attorney, the Florida Department of Law Enforcement, the Florida Commission on Offender Review, the Florida Department of Health and each circuit court clerk, is used by the Secretary of State to identify registered voters or applicants for voter registration who may be potentially ineligible to vote and to carry out other legal list maintenance procedures to meet its obligations under state and federal law. FLA. STAT. ANN. § 98.093.
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31. Defendant Julie L. Jones is the Secretary of the Department of Corrections and is sued in her official capacity. The Department of Corrections has “supervisory and protective care, custody, and control of the inmates, buildings, grounds, property, and all other matters pertaining to the following facilities and programs for the imprisonment, correction, and rehabilitation of adult offenders: (a) Department of Corrections adult correctional institutions; (b) Department of Corrections youthful offender institutions; (c) Department of Corrections Mental Health Treatment Facility; (d) Department of Corrections Probation and Restitution Center; (e) Department of Corrections community correctional centers; and (f) Department of Corrections vocational centers.” FLA. STAT. ANN. § 945.025(1). The Department of Corrections is charged with “inform[ing] and educat[ing] inmates and offenders on community supervision about the restoration of civil rights.” FLA. STAT. ANN. § 940.061. Additionally, every month the Department of Corrections must electronically transfer to the Florida Commission on Offender Review “a list of the names of inmates who have been released from incarceration and offenders who have been terminated from supervision who may be eligible for restoration of civil rights.” Id.
32. Defendant Melinda N. Coonrod is the Commissioner and Chair of the Florida Commission on Offender Review (formerly the Florida Parole and Probation Commission) and is sued in her official capacity. The Florida Commission on
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Offender Review, a three-member quasi-judicial body, makes decisions on granting and revoking parole, conditional medical release, control release, conditional release and addiction recovery release. FLA. STAT. ANN. §§ 947.002, 947.01.13 The Commission on Offender Review also “[a]cts as the administrative and investigative arm” of the Executive Clemency Board and, in this capacity, must report to the Board on “the circumstances, the criminal records, and the social, physical, mental, and psychiatric conditions and histories of persons under consideration by the board for” any form of clemency. Id. at 7; FLA. STAT. ANN. § 947.13(1)(e). The Commission’s Chair “shall establish, execute, and be held accountable for all administrative policy decisions. The routine administrative decisions are the full responsibility of the chair.” FLA. STAT. ANN. § 947.002(3).
33. Defendants Richard D. Davison and David A. Wyant are the other two Commissioners serving on the Florida Commission on Offender Review. They are sued in their official capacities.
34. Defendant Julia McCall is the Coordinator for the Office of Executive Clemency and is sued in her official capacity. The Office of Executive Clemency (“OEC”) is an office within the Florida Commission on Offender Review and reports
13 See also Florida Commission on Offender Review: 2015-2016 Annual Report, at 5-7, available at https://www.fcor.state.fl.us/docs/reports/FCORannualreport201516.pdf (last visited Mar. 9, 2017).
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to the Executive Clemency Board.14 The OEC processes executive clemency
applications and prepares them for the Board’s consideration. In her capacity as
Coordinator for the OEC, Defendant McCall “is responsible for coordinating all
clemency meetings, referring applications for investigation [by the Office of
Clemency Investigations15], and serves as the official custodian of all clemency
records.” Id. The OEC also prepares the executive orders and certificates granting
clemency and communicates with applicants and their counsel. Id.
BACKGROUND
A. History of Felon Disenfranchisement and Re-Enfranchisement in Florida
35. The disenfranchisement of individuals with felony convictions has a
long history in Florida. Florida adopted its first constitution in 1838, prior to its
14 Florida Commission on Offender Review: 2015-2016 Annual Report, at 14, available at https://www.fcor.state.fl.us/docs/reports/FCORannualreport201516.pdf (last visited Mar. 9, 2017). 15 The Office of Clemency Investigations (“OCI”) is another office within the Florida Commission of Offender Review. The OCI is “charged with investigating, reviewing, evaluating, and reporting to the Clemency Board in all types of clemency cases[.]” The staff conducts an investigation of every ex-felon applicant for restoration of civil rights, reviews his or her criminal record, traffic record, family situation, employment, any alcohol or drug abuse history, any unlawful voter registration or voting activity and any military history, and produces a Confidential Case Analysis, which the Board reviews and which is sent to the applicant. Florida Commission on Offender Review: 2015-2016 Annual Report, at 15, available at https://www.fcor.state.fl.us/docs/reports/FCORannualreport201516.pdf (last visited Mar. 9, 2017).
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admission to the union in 1845. The 1838 Constitution vested the general power to exclude those “convicted of bribery, perjury, forgery, or other high crime, or misdemeanor” from the franchise in the General Assembly. FLA. CONST. art. VI, §§ 4, 13 (1838). The disenfranchisement language was left unchanged until 1868 when the Reconstruction Act of 1867 required Florida and ten other former Confederate states to amend their Constitutions to extend the right to vote to all men, regardless of race. While the 1868 Constitution granted suffrage to all men over the age of 21, regardless of race, color, nationality, or previous condition of servitude, it also explicitly disenfranchised “any person convicted of [a] felony” for life “unless restored to civil rights.” FLA. CONST. art. XIV, §§ 2, 4 (1868). This language remained in the Constitution for the next century and was amended in 1968 to state that “[n]o person convicted of a felony . . . shall be qualified to vote or hold office until restoration of civil rights,” which remains the law to this day. FLA. CONST. art. VI, § 4 (1968). The felon disenfranchisement statute accordingly disqualifies “[a] person who has been convicted of any felony by any court of record and who has not had his or her right to vote restored pursuant to law.” FLA. STAT. ANN. § 97.041(2)(b).
36. The 1868 Constitution had also provided that pardons could be granted by a board comprised of “[t]he Governor, Justices of the Supreme Court, and Attorney General, or a major part of them, of whom the Governor shall be one.”
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FLA. CONST. art. V, § 12 (1868). FLA. CONST. art. XIV, § 2 (1868) “allowed those
who had been ‘restored to civil rights’ to vote, but did not indicate how this
restoration might happen.”16 Since 1968, the Constitution has clearly vested the
Governor of Florida with the power to restore an individual’s civil rights. Article
IV, Section 8(a) of the Constitution provides:
Except in cases of treason and in cases where impeachment results in conviction, the governor may, by executive order filed with the custodian of state records, suspend collection of fines and forfeitures, grant reprieves not exceeding sixty days and, with the approval of two members of the cabinet, grant full or conditional pardons, restore civil rights, commute punishment, and remit fines and forfeitures for offenses.17
FLA. STAT. ANN. § 944.292(1), which was first enacted in 1974, conditions the
restoration of civil rights on a full pardon, a conditional pardon, or a grant of
restoration pursuant to the Governor’s Article IV, Section 8 clemency powers.
37. Under Governor Bush’s administration from 1999 to 2007, there were
no waiting periods for ex-felons before they could apply for restoration of their civil
rights. Instead, to be eligible for restoration of civil rights, the individual must have
16 PIPPA HOLLOWAY, LIVING IN INFAMY: FELON DISENFRANCHISEMENT AND THE HISTORY OF AMERICAN CITIZENSHIP 106 (2014). 17 Even in conjunction with Article VI, Section 4 above, it is not clear that Florida’s Constitution gives the Governor the exclusive authority to restore civil rights, i.e. that the Legislature could not pass legislation restoring ex-felons’ civil rights automatically upon sentence completion. Indeed, FLA. STAT. ANN. § 97.041 tellingly articulates the felon disqualification as follows: “A person who has been convicted of any felony by any court of record and who has not had his or her right to vote restored pursuant to law.” (Emphasis added).
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completed all sentences and all conditions of supervision must have expired or been completed. Individuals were eligible for restoration of civil rights without a hearing if they were convicted of what the Board deemed less serious felonies and had “[n]o outstanding detainers or pending criminal charges, or terms of supervised release” and no outstanding victim restitution. Fla. R. Exec. Clemency 9 (2000-2006). An application was not required of such ex-felons unless they had been convicted in a court other than a Florida state court. Fla. R. Exec. Clemency 6, 9 (2000-2003). The Department of Corrections released the names of ex-felons who had completed their sentences including any parole, probation or supervised release to the Office of Executive Clemency (“OEC”) for review. Fla. R. Exec. Clemency 9.C (2000-2002). The Coordinator of the OEC would prepare for the Board a preliminary review list of ex-felons qualified for restoration without a hearing; individuals on that list would be granted restoration of civil rights unless three or more Board members objected. Fla. R. Exec. Clemency 9.B (2000-2002). In March of 2003, that threshold was reduced to two or more Board members. Fla. R. Exec. Clemency 9.B (2003). Up until 2004, the rules stated: “If determined eligible [for restoration without a hearing], an individual may, in most cases, receive a certificate evidencing restoration of civil rights . . . within one calendar year.” Fla. R. Exec. Clemency 9 (2000-2003). Those convicted of any of the listed felonies the Board deemed more serious were required to submit an application and face the Board in a hearing. Fla.
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R. Exec. Clemency 6, 9-11 (2000-2004). Additionally, from 2000 through 2002, the Rules of Executive Clemency clearly stated that “[t]he failure to attend the hearing will not be weighed against the applicant.” Fla. R. Exec. Clemency 11(B) (20002002). This provision was removed in 2003 and replaced with the statement that “[a]pplicants are not required to appear at the hearing, but the Clemency Board encourages applicants to attend.” Fla. R. Exec. Clemency 11(B) (2003).
38. The revised rules promulgated in 2004 made additional categories of ex-felons eligible for restoration of civil rights without a hearing under Rule 9. Individuals who remained crime- and arrest-free for five years after completing all sentences and conditions of supervision were eligible for restoration of civil rights without a hearing so long as they did not have a conviction involving one of seven enumerated categories of felonies. Fla. R. Exec. Clemency 9.A.5 (2004-2006). All other ex-felons who had been convicted of a felony within one of the enumerated offense categories in Rule 9.A.5 were eligible for restoration without a hearing if they remained crime- and arrest-free for fifteen years after completing all sentences and conditions of supervision. Fla. R. Exec. Clemency 9.A.6 (2004-2006). As with prior versions of the rules, ex-felons eligible for restoration without a hearing on any basis did not need to submit an application, unless they had been convicted in a court other than a Florida state court. Fla. R. Exec. Clemency 6, 9 (2004-2006). These
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changes created new avenues for ex-felons to regain their civil rights without a hearing, thus creating a way to restore the civil rights of more ex-felons.
39. In 2007, Governor Crist and the Board further amended the Rules of Executive Clemency to provide for an automatic path to restoration of civil rights for individuals who have completed all sentences and conditions of supervision, have no outstanding detainers or pending criminal charges, have paid all restitution, and have neither been convicted of one of twenty-five listed felonies or felony categories nor been declared a habitual violent felony offender, three-time violent felony offender, violent career criminal, prison release reoffender, or sexual predator under Florida law. Fla. R. Exec. Clemency 5.E, 9 (2007-2010). For qualifying exfelons, “automatic” restoration meant the Board’s grant of civil rights was nondiscretionary: “A person shall have his or her civil rights . . . immediately restored by automatic approval of the Clemency Board.” Fla. R. Exec. Clemency 9.A (20072010) (emphasis added). The Board would receive information from the Department of Corrections for all individuals who were eligible under Rule 9.A and automatically issue executive orders restoring their civil rights. Fla. R. Exec. Clemency 9.B (2007-2010).
40. Additionally, under the 2007 revised rules, discretionary grants of restoration of civil rights without a hearing remained available under Rule 10 for any ex-felon who met the same criteria as an ex-felon eligible for automatic restoration,
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unless they had been convicted of a felony within one of eleven disqualifying felony categories (narrowed down from the list in Rule 9) or declared a sexual predator. Fla. R. Exec. Clemency 10.A (2007-2010). Those who remained crime- and arrestfree for fifteen years could still seek restoration without a hearing, regardless of their offenses, but the availability of restoration without a hearing for those ex-felons who remained crime- and arrest-free for five years was eliminated. Fla. R. Exec. Clemency 10.B (2007-2010). Contrary to the prior default rule granting restoration unless Board members objected, the Governor plus two Board members would now have to grant restoration affirmatively to anyone on the preliminary review list. Fla. R. Exec. Clemency 10.C (2007-2010). Ex-felons eligible for automatic restoration or restoration without a hearing on any basis did not need to submit an application, unless they had been convicted in a court other a Florida state court. Fla. R. Exec. Clemency 6, 9, 10 (2007-2010). Finally, any individual not eligible for automatic restoration under Rule 9 or restoration without a hearing under Rule 10 would be compelled to submit an application for restoration with a hearing. Fla. R. Exec. Clemency 6, 9.B, 11 (2007-2010).
41. At the first Board meeting of Governor Scott’s administration on March 9, 2011, the Board voted unanimously to revise the Rules of Executive Clemency, establishing the arbitrary, time-consuming, and unreasonable restoration of civil rights process which is challenged in this action. The newly promulgated rules
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eliminated the automatic, non-discretionary restoration process for qualifying exfelons utilized by the previous administration and imposed strict waiting periods before ex-felons could apply for restoration of their civil rights without or with a hearing. Fla. R. Exec. Clemency 9-10. Those who committed what the Board deems less serious offenses must wait five years after the completion of their sentences to apply for restoration of civil rights, and those convicted of more serious felonies must wait seven years. Coupled with the fact that the Board only meets four times each year and only in Tallahassee, these waiting periods have caused the backlog of pending applications to grow to over 10,000. Upon information and belief, many applicants wait as many as ten years, if not more, for a hearing before the current Board. The 2011 revised rules also removed the path to restoration of civil rights without a hearing for those who have remained crime- and arrest-free for fifteen years and eliminated a longstanding provision allowing the Governor and one other Board member to waive the eligibility requirements in Rule 5, if at least two years had passed since the applicant was convicted and no restitution was owed. Fla. R. Exec. Clemency 8 (2000-2010). The Rules of Executive Clemency have not been modified since March 9, 2011.
B. Current Process for Restoration of Civil Rights 42. Under the current rules, an individual seeking the restoration of his or her civil rights must be eligible for that type of clemency and must submit an
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Application for Clemency. Fla. R. Exec. Clemency 5, 6, 9, 10. This was a significant change from prior versions of the rules, which allowed some ex-felons to regain their civil rights without submitting an application. The same Application for Clemency is used for all types of clemency: restoration of civil rights for a Florida, federal, military or out-of-state conviction, restoration of alien status under Florida law, remission of fine or forfeiture, specific authority to own, possess or use firearms, full pardon, and pardon without firearm authority.18
43. The Application for Clemency requires each applicant to provide basic demographic information as well as information and supporting documents on each felony conviction, including certified copies of the charging document, the judgment, and the sentence, community control or probation order. Fla. R. Exec. Clemency 6.B (2011). It can be quite time-consuming and costly for an applicant to procure these documents. Prior to the adoption of the current rules, applications seeking only the restoration of civil rights did not have to be accompanied by these supporting documents. Fla. R. Exec. Clemency 6.B (2000-2010).
i. Restoration of Civil Rights Without a Hearing 44. An individual is eligible to apply for restoration of civil rights without a hearing pursuant to Rule 9 “if the person has committed no crimes and has not
18 Florida Commission on Offender Review, Application for Clemency, available at https://www.fcor.state.fl.us/docs/clemency/ClemencyApplication.pdf (last visited Mar. 9, 2017).
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been arrested for a misdemeanor or felony for five (5) years from the date of completion of all sentences and conditions of supervision imposed” and a number of other requirements are met. Fla. R. Exec. Clemency 9.A.19 The completion of all sentences and conditions of supervision includes imprisonment, parole, probation, community control, control release, and conditional release. Fla. R. Exec. Clemency 9.A.1. The individual must have no outstanding detainers or pending criminal charges and must have paid all restitution and other financial obligations. Fla. R. Exec. Clemency 9.A.2, 9.A.3. Finally, the individual must not have been convicted of any crime on a lengthy list of felonies, including but not limited to murder, manslaughter, sexual batteries, drug trafficking and any other first- or second-degree drug offenses. Fla. R. Exec. Clemency 9.A.4. This list was significantly expanded from prior versions of the rule governing discretionary restoration without a hearing.
45. All applications submitted for restoration of civil rights without a hearing are reviewed by the Florida Commission on Offender Review. Those applications that meet the requirements of Rule 9.A are included in the preliminary review list of individuals eligible for restoration without a hearing. If the Governor and two other members of the Board approve an individual’s restoration of civil rights within 60 days of the preliminary review list’s issuance, an executive order
19 Even an arrest for a misdemeanor will reset the five-year clock or force the applicant to wait a total of seven years and apply for restoration with a hearing under Rule 10.
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granting clemency is issued. If the Governor does not approve an applicant on the preliminary review list, the applicant is notified and may pursue restoration of civil rights with a hearing pursuant to Rule 10. Fla. R. Exec. Clemency 9.B.
ii. Restoration of Civil Rights With a Hearing 46. An individual is eligible to apply for restoration of civil rights with a hearing pursuant to Rule 10 so long as there are “no new felony convictions for a period of seven (7) years or more after completion of all sentences imposed for the applicant’s most recent felony conviction and all conditions of supervision for the applicant’s most recent felony conviction have expired or been completed.” Fla. R. Exec. Clemency 10.A. Like an applicant for restoration of civil rights without a hearing, the individual must have paid all restitution and other financial obligations. 47. Each application for restoration of civil rights with a hearing must undergo an investigation by the Florida Commission on Offender Review which results in a report recommending the applicant favorably or unfavorably to the Board. Once all of these steps are completed, an applicant is placed on the agenda for the next Board hearing, and the applicant is provided with a notice of appearance. Fla. R. Exec. Clemency 11, 12. The Rules still provide that “[w]hile applicants are not required to appear at the hearing, the Clemency Board encourages applicants to attend.” Fla. R. Exec. Clemency 12.B.
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48. The Board still only holds four hearings per year. Fla. R. Exec. Clemency 12.A. Over the last six years, the Board has heard an average of 52 applicants for restoration of civil rights per hearing. Each meeting is held in Tallahassee which requires many applicants to take two or more days off from work in order to attend and requires many to travel upwards of 500 miles to Tallahassee.
49. At the meeting, each applicant is given five minutes to speak and essentially plead with the Board for clemency and the restoration of his or her civil rights. Fla. R. Exec. Clemency 12.B. The Board may grant or deny the applicant, continue the case until the next Board meeting, or take the application under advisement to make a final determination privately by mailing a letter. All applicants who are denied must wait a minimum of two years before reapplying. Fla. R. Exec. Clemency 14.
50. The Florida Rules of Executive Clemency do not set forth any rules governing the Board’s determinations. Rule 4 explicitly states that: “The Governor has the unfettered discretion to deny clemency at any time, for any reason.” Fla. R. Exec. Clemency 4.
C. Effect of the Current Restoration of Civil Rights Process in Florida
51. Since 2011, only 2,488 applications for restoration of civil rights have been granted by Defendants Scott, Bondi, Atwater, and Putnam. This number is dramatically lower than the number of applications granted during the previous two
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administrations: 155,315 during Governor Crist’s administration (2007-2011) and 73,508 during Governor Bush’s administration (1999-2007). Restoration of civil rights grants – both with and without a hearing – have declined steeply since Governor Scott assumed office in 2011: 1,428 (2001); 6,651 (2002); 14,836 (2003); 24,902 (2004); 11,638 (2005); 14,053 (2006); 38,971 (2007); 85,088 (2008); 25,347 (2009); 5,909 (2010); 78 (2011); 342 (2012); 605 (2013); 562 (2014); 428 (2015); and 473 (2016). This drop-off is largely due to rule changes narrowing the number of ex-felons who are eligible for discretionary restoration without a hearing and the elimination of automatic, non-discretionary restoration, combined with the glacial pace at which the Board processes applicants who require a hearing. The annual figures for restoration without a hearing demonstrate the severe impact of Governor Scott’s rules: 1,351 (2001); 6,539 (2002); 14,729 (2003); 24,797 (2004); 11,513 (2005); 13,862 (2006); 38,907 (2007); 85,075 (2008); 25,336 (2009); 5,893 (2010); 52 (2011); 298 (2012); 537 (2013); 504 (2014); 349 (2015); and 373 (2016).
52. Florida’s disenfranchised population is estimated at 1.68 million exfelons, an estimated 1.48 million of whom have completed their sentences.20 10.43 percent of Florida’s voting-age population cannot vote due to a felony conviction.21
20 See supra note 5 (Table 3). 21 Id. (Figure 2).
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Florida’s disenfranchised population accounts for more than a quarter of all disenfranchised ex-felons in the country.22
53. The restoration of the right to vote for these disenfranchised former felons rests with the unfettered discretion of Governor Scott and the Board. For the few ex-felons who endure the extensive delays to secure a hearing in front of the Board, what follows is a thoroughly inconsistent and arbitrary process for granting or denying applications for restoration of civil rights.
54. Not only is the standard-less process prone to arbitrary and discriminatory treatment, but the Board actually does make decisions in a wholly arbitrary manner. It grants and denies similarly situated applicants who have speeding or traffic citations, have voted illegally, or have similar post-release drug or alcohol use. These decisions turn on Governor Scott’s whim and the unregulated judgments of the Board.
D. Unfettered Discretion and Arbitrary Treatment of Ex-Felon Applicants for Restoration of Voting Rights 55. Members of the Executive Clemency Board routinely emphasize that the Board is “a court of mercy,”23 and its determinations are untethered to any laws,
22 Id. 23 Executive Clemency Board Hearing (June 24, 2015 at 00:03:27), available at http://thefloridachannel.org/videos/62415-executive-clemency-board-meeting/ (last visited Mar. 9, 2017).
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rules, standards, criteria or constraints of any kind. The Board frequently refers to
vague, amorphous standards such as whether the applicant has “turned [his or her]
life around”24 or has sufficiently shown remorse.25 At the December 7, 2016 Board
hearing, Defendant Governor Scott stated: “Clemency is . . . is—there’s no standard.
We can do whatever we want. But it’s tied to what we said in the beginning, it’s tied
to remorse.”26 Governor Scott has also cited the applicant’s “attitude” as a relevant
criterion for his decisions.27 These ad hoc standards are both unascertainable and
fatal to uniform application.
56. If disclosed, the Executive Clemency Board’s reasoning in granting or
denying applications is purely arbitrary and may often be pretextual. Similarly
situated individuals obtain diametrically opposite results based on the passing whims
of the Board members, since nothing regulates their decision-making. Typically, the
Board members probe applicants’ records for information relating to whether they
24 Id. at 2:09:26; Executive Clemency Board Hearing (March 22, 2012 at 3:10:20), available at http://thefloridachannel.org/videos/32212-executive-clemency-boardmeeting/ (last visited March 8, 2017). 25 Executive Clemency Board Hearing (December 7, 2006) (transcript at 142); Executive Clemency Board Hearing (March 25, 2015 at 3:07:25), http://thefloridachannel.org/videos/32515-executive-clemency-board-meeting/ (last visited Mar. 9, 2017). 26 Executive Clemency Board Hearing (December 7, 2016 at 2:02:00-2:02:07), available at http://thefloridachannel.org/videos/12716-executive-clemency-boardmeeting/ (last visited Mar. 9, 2017). 27 Executive Clemency Board Hearing (March 25, 2015 at 3:25-3:32), http://thefloridachannel.org/videos/32515-executive-clemency-board-meeting/ (last visited Mar. 9, 2017).
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are leading reformed lives. They focus on drug and alcohol use, traffic violations such as speeding or driving with a suspended license, illegal registration and voting, employment status, family and other perceived indicia of living a moral life or having “turned [one’s] life around,” according to the Board members’ beliefs.
57. One of the most frequent reasons Governor Scott cites for rejecting an application for restoration of civil rights is a record of traffic or moving violations. In these cases, Governor Scott usually states that speeding tickets, driving with a suspended license or other traffic violations are indicative of an unwillingness to abide by the law. That these are minor infractions, not felonies, and that the constitutionally-protected right to vote hangs in the balance does not deter Governor Scott and the other Board members from denying an application on this basis. For instance, at a minimum, the following voting rights restoration applicants have been denied due to their driving records: Eric Rodriguez-Schack (June 15, 2000);28 James Lee Miller (March 2, 2006);29 Plaintiff James Michael Hand (December 16, 2011);30
28 Executive Clemency Board Hearing (June 15, 2000) (transcript at 85-91). 29 Executive Clemency Board Hearing (Mar. 2, 2006) (transcript at 263-65). 30 Executive Clemency Board Hearing (Dec. 16, 2011 at 2:20:08-2:30:40), available at http://thefloridachannel.org/videos/121611-executive-clemency-board-meeting/ (last visited Mar. 8, 2017).
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Dennis Ortega Miller (March 22, 2012);31 Rex L. Carver (September 20, 2012);32
and Plaintiff Joseph James Galasso (March 20, 2013).33 However, in haphazard and
arbitrary fashion, the Board will sometimes grant applications, notwithstanding
equally lengthy records for the same moving violations. For example, the following
applicants were granted despite having a substantial or lengthy record of moving
violations, including speeding tickets: Mark Carston Addison (September 21,
2011);34 Tameka S. Jordan (March 22, 2012);35 Charles Douglas (December 13,
2012);36 Gaston Mirabal (December 13, 2012);37 Jeremy Lewis (September 25,
31 Executive Clemency Board Hearing (Mar. 22, 2012 at 2:45:18-2:55:40), available at http://thefloridachannel.org/videos/32212-executive-clemency-board-meeting/ (last visited Mar. 8, 2017). 32 Executive Clemency Board Hearing (Sept. 20, 2012 at 2:17:10-2:21:40), available at http://thefloridachannel.org/videos/92012-executive-clemency-board-meeting/ (last visited Mar. 8, 2017). 33 Executive Clemency Board Hearing (Mar. 20, 2013) (audio only and not available online). 34 Executive Clemency Board Hearing (Sept. 21, 2011 at 1:51:04-2:01:23), available at http://thefloridachannel.org/videos/92111-executive-clemency-board-meeting/ (last visited Mar. 8, 2017) 35 Executive Clemency Board Hearing (Mar. 22, 2012 at 1:14:12-1:20:28), available at http://thefloridachannel.org/videos/32212-executive-clemency-board-meeting/ (last visited Mar. 8, 2017). 36 Executive Clemency Board Hearing (Dec. 13, 2012 at 1:22:00-1:26:30), available at http://thefloridachannel.org/videos/121312-executive-clemency-board-meeting/ (last visited Mar. 8, 2017). 37 Id. at 2:46:23-2:53:13.
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2013);38 Gregory Louis Hansen (December 12, 2013);39 Anthony Edward Manso
(December 12, 2013, despite “so many traffic tickets”);40 Richard Allen Slaughter
III (March 19, 2014);41 Nelson Thomas Cruz (June 18, 2014);42 Ronald Eugene
Thompson (June 18, 2014);43 Rene De Moya (December 10, 2014);44 Michael Anson
Smith (December 9, 2015);45 and Elizabeth Gonzalez (December 9, 2015).46 The
reasons for this disparate treatment are elusive.
58. On occasion, the Board randomly imposes conditions on the restoration
of civil rights to individuals with moving violations. The Board granted Tim Jones’s
restoration application at the March 2, 2006 hearing, despite a “long list” of traffic
38 Executive Clemency Board Hearing (Sept. 25, 2013 at 2:35:49-2:38:14), available at http://thefloridachannel.org/videos/92513-executive-clemency-board-meeting/ (last visited Mar. 8, 2017). 39 Executive Clemency Board Hearing (Dec. 12, 2013 at 2:18:54-2:20:05), available at http://thefloridachannel.org/videos/121213-executive-clemency-board-meeting/ (last visited Mar. 8, 2017). 40 Id. at 2:21:14-2:22:40. 41 Executive Clemency Board Hearing (Mar. 19, 2014 at 3:09:20-3:12:16), available at http://thefloridachannel.org/videos/031914-executive-clemency-board-meeting/ (last visited Mar. 8, 2017). 42 Executive Clemency Board Hearing (June 18, 2014 at 2:13:05-2:15:45), available at http://thefloridachannel.org/videos/61814-executive-clemency-board-meeting/ (last visited Mar. 8, 2017). 43 Id. at 2:48:14-2:49:39. 44 Executive Clemency Board Hearing (Dec. 10, 2014 at 3:19:30-3:23:05), available at http://thefloridachannel.org/videos/121014-executive-clemency-board-meeting/ (last visited Mar. 8, 2017). 45 Executive Clemency Board Hearing (Dec. 9, 2015 at 1:29:57-1:41:26), available at http://thefloridachannel.org/videos/12915-executive-clemency-board-meetingpart-2/ (last visited Mar. 8, 2017). 46 Id. at 00:19:13-00:21:13.
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violations, but delayed the restoration of his right to vote until he completed a year without a new moving violation.47 In June 24, 2015, Edwin Scheer, who had “the worst” traffic record the Board had seen, was also given a conditional grant but the probationary period was set at two years.48 Governor Scott and the other Board members never explain why these individuals are more worthy of restoration or why their lengthy lists of traffic violations do not militate in favor of a denial until they no longer violate any traffic laws. On information and belief, conditional grants appear to be used only for applicants with records of moving violations. The Board acts in a wholly arbitrary fashion with uncontrolled, standard-less discretion to approve some applicants and deny others, even if these decisions cannot be reconciled in any logical fashion to ensure any degree of horizontal equity across cases.
59. Some ex-felon restoration applicants are denied for drug use subsequent to the completion of their sentences. Others are granted, notwithstanding a record of post-sentence drug use. The Executive Clemency Board arbitrarily denies restoration applicants on the basis of subsequent drug use after the completion of the applicant’s sentence, regardless of whether the charges resulted in a
47 Executive Clemency Board Hearing (Mar. 2, 2006) (transcript at 271-75). 48 Executive Clemency Board Hearing (June 24, 2015 at 1:08:59-2:12:31), available at http://thefloridachannel.org/videos/62415-executive-clemency-board-meeting/ (last visited Mar. 8, 2017).
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conviction. Governor Scott and the other Board members routinely question applicants over their past and present drug use or lack thereof, even if drugs played no role in their criminal records. They especially probe the applicant’s drug use if he or she was convicted of a drug trafficking offense or if drug use played a role in the offense. These interrogations reveal how vulnerable the clemency process is to
discrimination, including viewpoint discrimination.
60. Examples of arbitrary determinations abound when the Board is confronted with a record of subsequent drug use. At the December 9, 2015 Board hearing, Michael Lee Hazelwood’s application was denied after he admitted that he occasionally smokes marijuana because it helps him sleep,49 and Paul Antoine’s application was denied at the March 3, 2016 hearing because of a 2008 cocaine possession charge, on which prosecutors took no action.50 At the December 16, 2011
Board hearing, Brandon Garth Bloch was denied in large part because of marijuana possession in 2010 and post-sentence drug use.51 Additionally, some applicants are even denied for drug use which precedes their sentences. For example, after his
49 Executive Clemency Board Hearing (Dec. 9, 2015 at 1:06:22-1:09:16), available at http://thefloridachannel.org/videos/12915-executive-clemency-board-meetingpart-2/ (last visited Mar. 8, 2017). 50 Executive Clemency Board Hearing (Mar. 3, 2016 at 00:42:06-00:45:23), available at http://thefloridachannel.org/videos/3316-executive-clemency-boardmeeting-part-3/ (last visited Mar. 8, 2017). 51 Executive Clemency Board Hearing (Dec. 16, 2011 at 1:50:26-2:07:47), available at http://thefloridachannel.org/videos/121611-executive-clemency-board-meeting/ (last visited Mar. 8, 2017).
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hearing on December 9, 2015, Kevin Michael Grenier was denied restoration of his
civil rights because he had failed a drug test prior to his incarceration over 15 years
before his hearing, and because Board members believed that he had not finished a court-ordered drug treatment program when he was 16 years old.52 However, at the
September 21, 2016 Board hearing, Roger Simon admitted to continued marijuana
use following his completed sentence for drug trafficking53 and, at the December
2016 hearing, Melissa Beth Ann-Miller admitted that she smoked marijuana as recently as 2012.54 Despite these admissions of continued drug use, both Mr.
Simon’s and Ms. Ann-Miller’s applications for restoration of civil rights were
nevertheless granted. Similarly, at the September 20, 2012 hearing, Brian Ohle’s
voting rights were restored notwithstanding the fact that he had used drugs in 2007 following his conviction for a crime committed while intoxicated.55 At the March
19, 2014 hearing, it was noted that Danny Cuesta, who had previously been
52 Executive Clemency Board Hearing (Dec. 9, 2015 at 1:00:49-1:06:04), available at http://thefloridachannel.org/videos/12915-executive-clemency-board-meetingpart-2/ (last visited Mar. 8, 2017). 53 Executive Clemency Board Hearing (Sept. 21, 2016 at 4:05:15-4:11:05), available at http://thefloridachannel.org/videos/92116-executive-clemency-board-meetingpart-2/ (last visited Mar. 8, 2017). 54 Executive Clemency Board Hearing (Dec. 7, 2016 at 2:07:01-2:10:36), available at http://thefloridachannel.org/videos/12716-executive-clemency-board-meeting/ (last visited Mar. 8, 2017). 55 Executive Clemency Board Hearing (Sept. 20, 2012 at 1:49:48-1:56:38), available at http://thefloridachannel.org/videos/92012-executive-clemency-board-meeting/ (last visited Mar. 8, 2017).
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convicted of a federal drug offense, was re-arrested in 2001 for possession of cocaine at a nightclub.56 Despite this fact, the Board restored Mr. Cuesta’s civil rights. Governor Scott will also arbitrarily ask certain applicants whether they still use drugs and then skip this question for others. It is impossible to reconcile all of these cases other than by reference to the passing whims of the Board members and any undisclosed reasons for rejecting particular applicants. An applicant’s race, ethnicity, religion, failure to identify with any religion, dress, manner of speech, as well as a guess as to the applicant’s political inclinations and views, might all play a role in these seemingly random denials. A system of absolute discretion in licensing is a license to discriminate.
61. Alcohol use is another frequent focus of the Board members’ interrogations. The Executive Clemency Board arbitrarily denies applicants for restoration of civil rights on the basis of subsequent alcohol use after the completion of the sentence. Restoration applicants routinely face questioning by Governor Scott and the other Board members over their use of alcohol, even if alcohol played no role in their criminal record but especially if they were convicted of DUI manslaughter or any other offense in which intoxication played a substantial role. For some applicants who were previously convicted of DUI manslaughter, Governor
56 Executive Clemency Board Hearing (Mar. 19, 2014 at 2:11:37-1:13:59), available at http://thefloridachannel.org/videos/031914-executive-clemency-board-meeting/ (last visited Mar. 8, 2017).
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Scott has zero tolerance for even infrequent, responsible drinking at social occasions
like weddings. At the June 2, 2011, December 13, 2012 and September 25, 2013 hearings, the Board denied Ronald Kessler,57 Brent Walter Rouse58 and Robert Allen Parsons’59 applications, respectively, citing their continued drinking following
sentences for DUI manslaughter, even if the applicants represented that their
drinking was rare and responsible. For example, Governor Scott told Mr. Rouse that
if he had his criminal background, he would never drink again: “[U]ntil you stop
drinking I would never ever—if I was in an accident and somebody died I would never touch alcohol again.”60
62. At other times, Governor Scott questions applicants who were
intoxicated at the time of their offenses and, after confirming that their present
drinking is minimal, occasional and/or responsible, moves to grant the application.
For example, at the June 2, 2011 Board hearing, James Labossiere’s restoration
57 Executive Clemency Board Hearing (June 2, 2011 at 1:39:41-1:46:22), available at http://thefloridachannel.org/videos/621111-executive-clemency-board-meeting/ (last visited Mar. 8, 2017). 58 Executive Clemency Board Hearing (Dec. 13, 2012 at 3:24:55-3:35:30), available at http://thefloridachannel.org/videos/121312-executive-clemency-board-meeting/ (last visited Mar. 8, 2017). 59 Executive Clemency Board Hearing (Sept. 25, 2013 at 4:16:34-4:21:42), available at http://thefloridachannel.org/videos/92513-executive-clemency-board-meeting/ (last visited Mar. 8, 2017). 60 Executive Clemency Board Hearing (Dec. 13, 2012 at 3:35:10), available at http://thefloridachannel.org/videos/121312-executive-clemency-board-meeting/ (last visited Mar. 8, 2017).
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application was granted despite stating that he still drinks following his conviction
for a crime he committed while intoxicated.61 At the March 22, 2012 hearing, the
Board restored Gerald Bryan Kelly’s voting rights even though he informed
Governor Scott that he drinks on occasion after having served time for a DUI
manslaughter conviction.62 At the September 20, 2012 hearing, Brian Ohle’s
application was granted even though he admitted to both alcohol and drug use after
his conviction for his crime and as recently as five years prior to his hearing.63 At
the June 26, 2013 hearing, another DUI manslaughter ex-felon Ronald Burgess
Kilpatrick’s application was granted, even though he drinks on occasion.64 Finally,
at the December 2016 hearing, Jason Lehlbeck, who was convicted of DUI reckless
driving, was re-enfranchised despite his admission that he drinks about four to six
drinks per week.65 Governor Scott’s zero tolerance policy for drinking by those
61 Executive Clemency Board Hearing (June 2, 2011 at 2:44:17-3:00:10), available at http://thefloridachannel.org/videos/621111-executive-clemency-board-meeting/ (last visited Mar. 8, 2017). 62 Executive Clemency Board Hearing (Mar. 22, 2012 at 2:20:56-2:33:07), available at http://thefloridachannel.org/videos/32212-executive-clemency-board-meeting/ (last visited Mar. 8, 2017). 63 Executive Clemency Board Hearing (Sept. 20, 2012 at 1:49:48-1:56:38), available at http://thefloridachannel.org/videos/92012-executive-clemency-board-meeting/ (last visited Mar. 8, 2017). 64 Executive Clemency Board Hearing (June 26, 2013 at 2:19:19-2:27:35), available at http://thefloridachannel.org/videos/62613-executive-clemency-board-meeting/ (last visited Mar. 8, 2017). 65 Executive Clemency Board Hearing (Dec. 7, 2016 at 2:48:08-2:53:55), available at http://thefloridachannel.org/videos/12716-executive-clemency-board-meeting/ (last visited Mar. 8, 2017).
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convicted of DUI crimes is randomly applied. It may be just another pretextual
reason and it once again underscores the erratic, arbitrary nature of the Board’s
decision-making.
63. The Executive Clemency Board has been similarly inconsistent in
handling applicants who have unlawfully registered and voted, even though in
almost all cases the applicant represents that they did not do so knowingly. In 2011,
Governor Scott rejected at least five different applicants because they had unlawfully
registered and voted as ex-felons, even when these individuals pleaded that they did
not do so knowingly and that they were given misinformation by local and state
officials. They include: Dorothy Tabb Bucknor (February 24, 2011);66 Leon Gillis III (June 2, 2011);67 Tiffany Paramore (December 16, 2011);68 Donald Charles Green (December 16, 2011);69 and Elston Roberto Joyner (December 16, 2011).70
For Ms. Paramore, Governor Scott said he would be more comfortable when she re-
applied in two years, begging the question why the Board would excuse her illegal
66 Executive Clemency Board Hearing (Feb. 24, 2011 at 1:50:32-1:56:00), available at http://thefloridachannel.org/videos/22411-executive-clemency-board-meeting/ (last visited Mar. 8, 2017). 67 Executive Clemency Board Hearing (June 2, 2011 at 2:09:06-2:16:49), available at http://thefloridachannel.org/videos/621111-executive-clemency-board-meeting/ (last visited Mar. 8, 2017). 68 Executive Clemency Board Hearing (Dec. 16, 2011 at 3:10:13-3:19:59), available at http://thefloridachannel.org/videos/121611-executive-clemency-board-meeting/ (last visited Mar. 8, 2017). 69 Id. at 2:11:23-2:19:40. 70 Id. at 2:46:39-2:51:43.
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voting in two years, if it was unprepared to do so at the 2011 hearing. Following statements by Defendants CFO Atwater and Commissioner Putnam criticizing the Department of Corrections and the County Supervisors of Elections for their failure to educate ex-felons on their disenfranchisement, it appears Governor Scott’s Executive Clemency Board has not denied anyone solely for illegal voter registration and/or voting. However, upon information and belief, the Board did not seek to revisit and reverse the denials of those applicants rejected in 2011 for illegal voting. For those applicants, their uncorrected denials remain irreconcilable and arbitrary.
64. Since the fate of every applicant’s right to vote rests in the unconstrained discretion of four governmental officials, the clemency process is vulnerable to viewpoint discrimination including discrimination on the basis of political party affiliation. There are no rules prohibiting such discriminatory treatment and no way to police the process for such discrimination because the Executive Clemency Board members do not always disclose their reasons for granting or denying an application. The Board can try to infer an applicant’s political leanings based on his or her statements, residence address, race or ethnicity and even perhaps information outside the case file presented by the Office of Clemency Investigations, and then act on that ulterior basis. Given these circumstances, it is unsurprising that certain applicants and their supporting witnesses make partisan appeals to the Governor and other Board members.
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65. Applicants and witnesses on their behalf signal political leanings and policy preferences, sometimes quite explicitly. For instance, a 25-year veteran of law enforcement testified on behalf of Patrick Durden at the March 3, 2016 hearing, stating that Mr. Durden should be able “to vote, to be a part of the process—to be a part of the political process, whether it’s seeking office or to vote or to serve on a jury, this is the type of person that we want out there doing . . . Beyond his conservative views which are in all of our favor. . . .”71 Mr. Durden’s civil rights were restored. Some applicants have sought to curry favor by identifying themselves with the current Governor’s political party in subtle or more overt ways. These statements may well make the difference or give board members a reason to grant an application, even though similarly situated applicants have been denied. A system of unregulated discretion to license ex-felons to vote allows current and future Board members of any political party to use the clemency power for partisan ends. Such a system is highly vulnerable to viewpoint discrimination, which can be easily camouflaged by a variety of stated, pretextual reasons for denying or granting particular applicants. At the December 12, 2013 hearing, applicant Stephen A. Warner was challenged on his recent illegal voting in 2010, and he responded by saying he had voted for Governor Scott: “I voted for you.” Notwithstanding the
71 Executive Clemency Board Hearing (Mar. 3, 2016 at 00:58:32-1:08:30), available at http://thefloridachannel.org/videos/3316-executive-clemency-board-meetingpart-3/ (last visited Mar. 9, 2017).
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illegal voting on his record and the fact that other applicants had been denied on this
basis in 2011, the Board proceeded to grant Mr. Warner’s application for restoration
of civil rights.72 At the December 7, 2016 hearing, a Tallahassee police officer spoke
in favor of Robert Arnold Martin’s application and also sought to appeal to the
Board’s political preferences by stating “he is very conservative”—Mr. Martin’s
application was granted.73 And at the June 24, 2015 Board hearing, Scott Moore regained his right to vote after his wife testified to “his conservative principles.”74
By contrast, on September 20, 2012, Rex L. Carver, a military veteran, spoke
forcefully at his hearing on the injustice of felon disenfranchisement and the need to
protect the fundamental right to vote.75 Discounting the evidence that Mr. Carver
had indeed turned away from crime and was gainfully employed, Governor Scott
simply noted that the applicant had a record of traffic violations and stated: “If you
look at it from our standpoint, you look at it and you say, gosh this is an individual
72 Executive Clemency Board Hearing (Dec. 12, 2013 at 3:47:38-3:50:19), available at http://thefloridachannel.org/videos/121213-executive-clemency-board-meeting/ (last visited Mar. 9, 2017). 73 Executive Clemency Board Hearing (Dec. 7, 2016 at 2:02:53-2:06:45), available at http://thefloridachannel.org/videos/12716-executive-clemency-board-meeting/ (last visited Mar. 9, 2017). 74 Executive Clemency Board Hearing (June 24, 2015 at 2:37:47-2:42:51), available at http://thefloridachannel.org/videos/62415-executive-clemency-board-meeting/ (last visited Mar. 9, 2017). 75 Executive Clemency Board Hearing (September 20, 2012 at 2:17:10-2:21:40), available at http://thefloridachannel.org/videos/92012-executive-clemency-boardmeeting/ (last visited Mar. 9, 2017).
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that doesn’t worry about complying with the law.”76 Mr. Carver’s application was denied. While these are examples from a Republican administration, in the future, the Executive Clemency Board may be controlled by a Democratic or Libertarian administration. From 1991 to 1998, Florida’s Governor was a Democrat. The problem with these discretionary restoration decisions exists no matter who is in office. This is precisely why politicians should not be given unfettered discretion to decide who can vote.
66. Further examples of the Board’s arbitrariness abound. Even though Governor Scott’s Executive Clemency Board adopted five- and seven-year waiting periods before ex-felons could even apply for restoration of civil rights, the Governor nevertheless frequently denies applicants by noting simply and cryptically that “more time needs to pass.”77 There is no consistency in these snap determinations as to what constitutes an adequate amount of time between the completion of a sentence and re-enfranchisement. At the December 16, 2011 hearing, the Board noted it had been less than ten years since Timothy John Faulker78
76 Id. at 2:21:08. 77 Executive Clemency Board Hearing (December 9, 2015 at 1:23:40-1:23:45), available at http://thefloridachannel.org/videos/12915-executive-clemency-boardmeeting-part-2/ (last visited Mar. 10, 2017). 78 Executive Clemency Board Hearing (December 16, 2011 at 1:24:01-1:24:58), available at http://thefloridachannel.org/videos/121611-executive-clemency-boardmeeting/ (last visited Mar. 9, 2017).
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and Plaintiff Harold William Gircsis, Jr.79 were released. At the June 2, 2011
hearing, Governor Scott told Anna McFarland Wood that she needs to be crime-free
for a longer period of time than four years,80 and he told Stephen Edward Crain that
he would like to wait a little longer.81 Every year applicants are denied because the
Governor on whim determines that not enough time has passed since their sentences
were completed: Shawn Hughes (December 16, 2011);82 Michael L. Price (March
22, 2012; “needs a little more time”);83 Luis Frederico Zouain (March 22, 2012; “it’s
only been eleven years”);84 Charles Williamson (December 13, 2012; “more time
ought to pass”);85 Plaintiff Virginia Kay Atkins (June 26, 2013; “at this point I don’t
feel comfortable” despite her release from incarceration 10 years earlier);86 and Gene
79 Id. at 1:25:01-1:26:03. 80 Executive Clemency Board Hearing (June 2, 2011 at 4:05:18-4:16:35), available at http://thefloridachannel.org/videos/621111-executive-clemency-board-meeting/ (last visited Mar. 9, 2017). 81 Id. at 2:02:04-2:08:23. 82 Executive Clemency Board Hearing (December 16, 2011 at 2:30:50-2:37:22), available at http://thefloridachannel.org/videos/121611-executive-clemency-boardmeeting/ (last visited Mar. 9, 2017). 83 Executive Clemency Board Hearing (March 22, 2012 at 3:06:48-3:10:38), available at http://thefloridachannel.org/videos/32212-executive-clemency-boardmeeting/ (last visited Mar. 9, 2017). 84 Id. at 3:17:32-3:22:48. 85 Executive Clemency Board Hearing (December 13, 2012 at 3:46:23-3:51:31), available at http://thefloridachannel.org/videos/121312-executive-clemency-boardmeeting/ (last visited Mar. 9, 2017). 86 Executive Clemency Board Hearing (June 26, 2013 at 2:52:17-2:56:02), available at http://thefloridachannel.org/videos/62613-executive-clemency-board-meeting/ (last visited Mar. 9, 2017).
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Alan Rothstein (December 12, 2013; “more time needs to pass”).87 At the March 19, 2014 Board hearing, Governor Scott denied Vinicio Marmolejos’s application, telling him that he had started heading in the right direction but that he would “like more time to change your life and to show that you have changed.”88 Governor Scott and the other Board members effectively substitute their own judgment for that of the courts and the Florida Commission on Offender Review which decide how long a criminal sentence or period of post-sentence supervision should be. The Board is essentially given the unchecked power to indefinitely extend a sentence when it comes to that ex-felon’s civil rights.
67. Finally, the Executive Clemency Board also arbitrarily enforces its own rules for processing and adjudicating clemency applications. As previously noted, an applicant for restoration of civil rights is only eligible for restoration without a hearing under Rule of Executive Clemency 9, if he or she has not been convicted of a crime on a list of selected felonies. Fla. R. Exec. Clemency 9.A.4. Otherwise, if the applicant has been convicted of a felony on that list, he or she must be processed under Rule of Executive Clemency 10, which requires a seven-year waiting period
87 Executive Clemency Board Hearing (December 12, 2013 at 3:21:53-3:26:52), available at http://thefloridachannel.org/videos/121213-executive-clemency-boardmeeting/ (last visited Mar. 9, 2017). 88 Executive Clemency Board Hearing (March 19, 2014 at 2:52:51-2:55:20), available at http://thefloridachannel.org/videos/031914-executive-clemency-boardmeeting/ (last visited Mar. 9, 2017).
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and a hearing. Plaintiff William Bass has recently been rejected for restoration without a hearing and referred to the Office of Clemency Investigations for an investigation and ultimately a hearing on his application. However, the requirements of Rules 9 and 10 seem to be arbitrarily waived for certain applicants. Roderick Kemp, who – on information and belief – had pled guilty to a second-degree felony for possession with intent to deliver under FLA. STAT. ANN. §§ 893.13(1)(a)(1), 893.03(2)(a) back in 1986 and who had applied for a pardon in 2015, suddenly received a letter in the mail with an enclosed certificate announcing his civil rights had been restored by executive order dated January 13, 2017. While Mr. Kemp has waited much more than 5 or 7 years after completing his sentence, no hearing had ever been scheduled for his case, and he was granted restoration without a hearing, even though individuals convicted of “second degree felonies described in F.S. Chapter 893” are ineligible for restoration without a hearing under Rule 9. The Executive Clemency Board’s selective leniency and fast-tracking in this case appears to be a direct result of the fact that Mr. Kemp’s case had garnered public attention in the media and a recent documentary film produced by the Florida Center for Investigative Reporting. Of course, not all of the estimated 1.68 million disenfranchised ex-felons in Florida will be able to garner media attention if that compels the Board’s attention and a waiver of its own rules. Similarly, the Board sometimes creates ad hoc rules. At the March 3, 2016 hearing, the Board denied
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two applicants and imposed a 50-year waiting period before they could reapply,
effectively disenfranchising applicant David Bruce Easterling – who was 54 years old at the time – for life.89
CLASS ACTION ALLEGATIONS
PLAINTIFF CLASS (COUNTS 1-3)
68. Plaintiffs bring this action on behalf of themselves and all those
similarly situated pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(2).
The Plaintiff Class is defined as:
Any current or future resident of the State of Florida who is a United States citizen, at least 18 years of age, not disqualified under the mental incapacitation provisions in FLA. CONST. art. VI, § 4(a) and FLA. STAT. ANN. § 97.041(2)(a), who is disenfranchised under Florida state law by reason of a prior felony conviction under FLA. CONST. art. VI, § 4(a) and FLA. STAT. ANN. § 97.041(2)(b) and who has completed his or her full sentence for all felony convictions including any period of parole, probation, supervised release and/or community control and any other condition of supervision.
69. It is estimated that 1.68 million Floridians are disenfranchised by reason
of a prior felony conviction, and an estimated 1.48 million of these ex-felons have completed their sentences.90 10,513 applicants for restoration of civil rights were
89 Executive Clemency Board Hearing (March 3, 2016 at 1:08:37-1:16:23), available at http://thefloridachannel.org/videos/3316-executive-clemency-board-meetingpart-3/ (last visited Mar. 9, 2017). 90 See supra note 5 (Table 3).
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pending in the Executive Clemency Board’s backlog as of March 1, 2017. More exfelons complete their sentences including parole, probation and/or supervised release every month. According to the Florida Department of Corrections, “[a]pproximately 39,727 (46.1%) offenders completed their sentences successfully” in FY 20142015.91 In FY 2015-2016, the Office of Executive Clemency received 6,462 clemency applications.92
70. Questions of law are common to the class including: (1) whether Florida state law governing felon disenfranchisement and re-enfranchisement by way of the Executive Clemency Board’s restoration process violates the First Amendment’s guarantee against prior restraints vesting government officials with unfettered discretion to arbitrarily issue or deny licenses or permits to engage in speech, association and/or any other activity or conduct protected by the First Amendment to the United States Constitution; (2) whether Florida state law governing felon disenfranchisement and re-enfranchisement violates the Fourteenth Amendment’s prohibition on arbitrary allocation of the franchise; and (3) whether the lack of any definite time limits in Florida state law governing felon

91 Florida Department of Corrections, Annual Report Fiscal Year 2014-2015, at 54,

available at http://www.dc.state.fl.us/pub/annual/1415/FDC_AR2014-15.pdf (last

visited Mar. 10, 2017).

92 Florida Commission on Offender Review: 2015-2016 Annual Report, at 8,

available

at

https://www.fcor.state.fl.us/docs/reports/FCORannualreport201516.pdf (last visited

Mar. 9, 2017).

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disenfranchisement and re-enfranchisement for processing and making decisions on applications for the restoration of voting rights violates the First Amendment requirement that government officials, who are authorized to license speech, association and/or any other activity or conduct protected by the First Amendment, process applications and make their determinations within a defined time period. The factual questions that are relevant to these three legal questions reflecting Counts 1, 2 and 3 are all common to the class and will have answers that are common to the class as a whole as well.
71. Plaintiffs’ claims are typical of the class. Since these are facial challenges to a set of unconstitutional laws and procedures, Plaintiffs all suffer the same constitutional injury regardless of whether their applications for restoration of civil rights have been denied, are still pending or have not yet been filed. All the Plaintiffs and all members of the proposed Plaintiff Class are subjected to a set of felon disenfranchisement and re-enfranchisement laws and procedures which condition the restoration of their First Amendment-protected right to vote on the unfettered discretion of the Executive Clemency Board. As a consequence of this unlawful prior restraint, all Plaintiffs’ voting rights are subject to the Board’s unconstitutionally arbitrary decision-making or arbitrary allocation of the franchise; and all Plaintiffs are subjected to a scheme which lacks definite time limits on the licensing authority’s ultimate determinations.
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72. Plaintiffs will fairly and adequately represent the interests of all members of the proposed class because they seek relief on behalf of the class as a whole and have no interests antagonistic to other members of the class. Plaintiffs, like other members of the proposed Plaintiff Class, face a set of felon disenfranchisement and re-enfranchisement laws and procedures which condition the restoration of their First Amendment-protected right to vote on the unconstitutionally unfettered discretion of government officials, a voter-licensing scheme which arbitrarily allocates the franchise and lacks any time limits on the processing and adjudication of applications. They seek to have FLA. CONST. art. VI, § 4(a), FLA. STAT. ANN. § 97.041(2)(a), FLA. CONST. art. IV, § 8, FLA. STAT. ANN. § 944.292(1) and the Florida Rules of Executive Clemency declared unlawful and permanently enjoined so that upon any ex-felon’s completion of his or her full sentence including any period of parole, probation and/or supervised release, he or she will be automatically and immediately restored to his or her voting rights. This will obviate the need – pursuant to FLA. CONST. art. VI, § 4(a), FLA. STAT. ANN. § 97.041(2)(a), FLA. CONST. art. IV, § 8, FLA. STAT. ANN. § 944.292(1) and the Florida Rules of Executive Clemency – to petition the Executive Clemency Board for and secure the restoration of their voting rights by a full pardon, conditional pardon or restoration of civil rights pursuant to Art. IV, Sec. 8 of the Florida Constitution.
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73. Proposed class counsel will fairly and adequately represent the class.
Proposed class counsel is experienced with civil rights litigation, including voting
rights cases and class actions.
74. Defendants have acted and will continue to act on grounds generally
applicable to the Plaintiff Class in requiring disenfranchised ex-felons – pursuant to
FLA. CONST. art. VI, § 4(a), FLA. STAT. ANN. § 97.041(2)(a), FLA. CONST. art. IV, §
8, FLA. STAT. ANN. § 944.292(1) and the Florida Rules of Executive Clemency – to
petition the Executive Clemency Board for and secure the restoration of voting rights
by a full pardon, conditional pardon, or restoration of civil rights granted pursuant
to Art. IV, Sec. 8 of the Florida Constitution, before they can register to vote and
vote. Final declaratory and injunctive relief is appropriate with respect to the
Plaintiff Class.
SUBCLASS A (COUNT 4)
75. Plaintiff Yraida Leonides Guanipa seeks to represent a subclass
(Subclass A), which is a subset of the Plaintiff Class and defined as:
Any current or future resident of the State of Florida who is a United States citizen, at least 18 years of age, not disqualified under the mental incapacitation provisions in FLA. CONST. art. VI, § 4(a) and FLA. STAT. ANN. § 97.041(2)(a), who is disenfranchised under Florida state law by reason of a prior felony conviction under FLA. CONST. art. VI, § 4(a) and FLA. STAT. ANN. § 97.041(2)(b) and who has completed his or her full sentence for all felony convictions including any period of parole, probation, supervised release and/or community control and any other condition of supervision, but who has not yet
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waited 5 or 7 years – whichever is applicable to the individual – since the completion of his or her sentence as required to apply for restoration of civil rights under Florida Rules of Executive Clemency 9 and 10, respectively. 76. Again, it is estimated that 1.68 million Floridians are disenfranchised by reason of a prior felony conviction, and an estimated 1.48 million of these exfelons have completed their sentences.93 10,513 applicants for restoration of civil rights were pending in the Executive Clemency Board’s backlog as of March 1, 2017. More ex-felons complete their sentences including parole, probation and/or supervised release every month. According to the Florida Department of Corrections, “[a]pproximately 39,727 (46.1%) offenders completed their sentences successfully” in FY 2014-2015.94 Accordingly, at a minimum, there are at least tens of thousands of Subclass A members who have not yet completed their 5- or 7-year waiting periods following the completion of their sentences in accordance with Florida Rules of Executive Clemency 9 and 10. 77. Questions of law and fact are common to Subclass A including: whether the requirement under Florida Rules of Executive Clemency 9 and 10 for ex-felons to wait 5 or 7 years following sentence completion and before applying for restoration of voting rights, constitutes an undue burden on the right to vote not
93 See supra note 5 (Table 3). 94 Florida Department of Corrections, Annual Report Fiscal Year 2014-2015, at 54, available at http://www.dc.state.fl.us/pub/annual/1415/FDC_AR2014-15.pdf (last visited Mar. 10, 2017).
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justified by the state’s interests and therefore violates the First and Fourteenth Amendments to the U.S. Constitution. These waiting periods are “severe restriction[s]” which are not “narrowly drawn to advance a state interest of compelling importance.” Burdick v. Takushi, 504 U.S. 428, 434 (1992). Even if the Court were to find they constitute “reasonable, nondiscriminatory restrictions,” they are not justified by “the State’s important regulatory interests.” Id. The balancing of the restriction against the state’s interests is a common question of fact and law for the entirety of Subclass A, since the burden of the 5- and 7-year waiting periods after the completion of a sentence does not vary from subclass member to subclass member. Each Subclass A member suffers the same injury in being required effectively to serve an unnecessary, de facto second sentence before applying for the restoration of his or her voting rights.
78. Plaintiff Yraida Leonides Guanipa’s claim is typical of Subclass A’s members’ claims under Count Four. Subclass A members all suffer the same injury of being forced to endure an unnecessary, de facto second sentence before applying for restoration of their voting rights. Ms. Guanipa and all members of the proposed Subclass A are subjected to the severe restriction of a pre-application 5- or 7-year waiting period, which is not narrowly drawn to advance a state interest of compelling importance. Nor does it further an important regulatory interest.
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79. Plaintiff Yraida Leonides Guanipa will fairly and adequately represent the interests of all members of the proposed subclass because she seeks relief on behalf of Subclass A as a whole and has no interests antagonistic to other members of the subclass. Ms. Guanipa, like other members of proposed Subclass A, faces an unconstitutionally severe restriction in the waiting period requirements imposed by the Executive Clemency Board in 2011. Ms. Guanipa and the members of proposed Subclass A seek to have the 5- and 7-year waiting period requirements imposed in Florida Rules of Executive Clemency 9 and 10 declared unlawful and permanently enjoined as undue burdens on the right to vote in violation of the First and Fourteenth Amendments to the U.S. Constitution.
80. Proposed class counsel will fairly and adequately represent the class. Proposed class counsel is experienced with civil rights litigation, including voting rights and First Amendment cases.
81. Defendants have acted and will act on grounds generally applicable to Subclass A in requiring disenfranchised ex-felons who have completed their full sentences to wait 5 or 7 years, pursuant to Florida Rules of Executive Clemency 9 and 10, respectively, before applying for the restoration of their voting rights. Final declaratory and injunctive relief is appropriate with respect to Subclass A.
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CLAIMS COUNT ONE (All Plaintiffs and Plaintiff Class) (Unfettered Official Discretion and Arbitrary Treatment in Violation of First Amendment to the United States Constitution and 42 U.S.C. § 1983) 82. The factual allegations contained in the preceding paragraphs are incorporated into Count One, as though fully set forth herein. 83. Plaintiffs assert a claim pursuant to 42 U.S.C. § 1983 for violation of the First Amendment to the U.S. Constitution. 84. The First Amendment provides that: “Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” U.S. CONST. amend. I, § 1. 85. The First Amendment protects the right to vote because voting is both a form of speech or expressive conduct and a means of political association. Doe v. Reed, 561 U.S. 186, 195-96 & n.1 (2010); id. at 224 (Scalia, J., concurring) (“We have acknowledged the existence of a First Amendment interest in voting . . .”) (citing Burdick v. Takushi, 504 U.S. 428 (1992)); California Democratic Party v. Jones, 530 U.S. 567, 574 (2000); Timmons v. Twin Cities Area New Party, 520 U.S. 351, 354-57 (1997); McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 341-43 (1995); Burdick v. Takushi, 504 U.S. 428, 434, 437-39 (1992); Norman v. Reed, 502 U.S. 279, 288-90 (1992); Tashjian v. Republican Party of Connecticut, 479 U.S.
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208, 214-17 (1986); Munro v. Socialist Workers Party, 479 U.S. 189, 193, 199 (1986); Anderson v. Celebrezze, 460 U.S. 780, 787-89 (1983); Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184 (1979); Storer v. Brown, 415 U.S. 724, 728-29 (1974); Kusper v. Pontikes, 414 U.S. 51, 56-58 (1973); Williams v. Rhodes, 393 U.S. 23, 30-31 (1968). Because registration is a prerequisite to and/or enables voting in primary and general elections, it too is protected by the First Amendment. See Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 400 (2000) (Breyer, J., concurring) (“[A] decision to contribute money to a campaign is a matter of First Amendment concern—not because money is speech (it is not); but because it enables speech.”) (emphasis in original).
86. The First Amendment forbids vesting government officials with unfettered discretion to issue or deny licenses or permits to engage in any First Amendment-protected speech, expressive conduct, association or any other protected activity or conduct. Forsyth Cnty., Ga. v. Nationalist Movement, 505 U.S. 123, 130-33 (1992) (“The First Amendment prohibits the vesting of such unbridled discretion in a government official.”); City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 763-64 (1988) (“[A] law or policy permitting communication in a certain manner for some but not for others raises the specter of content and viewpoint censorship. This danger is at its zenith when the determination of who may speak and who may not is left to the unbridled discretion of a government official.”);
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Shuttlesworth v. City of Birmingham, Ala., 394 U.S. 147, 153 (1969) (“[A government] may not empower its licensing officials to roam essentially at will, dispensing or withholding permission to speak, assemble, picket, or parade according to their own opinions regarding the potential effect of the activity in question on the ‘welfare,’ ‘decency,’ or ‘morals’ of the community.”); Cox v. State of Louisiana, 379 U.S. 536, 554-58 (1965); Staub v. City of Baxley, 355 U.S. 313, 322 (1958) (“It is settled by a long line of recent decisions of this Court that an ordinance which, like this one, makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official—as by requiring a permit or license which may be granted or withheld in the discretion of such official—is an unconstitutional censorship or prior restraint upon the enjoyment of those freedoms.”); Niemotko v. State of Md., 340 U.S. 268, 271-73 (1951) (striking down prior restraint on use of parks, noting that hearing focused on “alleged refusal to salute the flag, their views on the Bible, and other issues irrelevant to unemcumbered [sic] use of the public parks” and that Mayor testified applicant’s demeanor at hearing doomed application); Saia v. People of State of New York, 334 U.S. 558, 560-62 (1948) (striking down prior restraint scheme of “uncontrolled discretion” to grant or deny permits for use of loud-speakers) (“Annoyance at ideas can be cloaked in annoyance at sound.”).
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87. Similarly, the First Amendment requires that any time, place and manner regulation not be arbitrary or arbitrarily administered. If decisions as to the time, place and manner of voting are left to the whims of government officials, then the regulation is invalid. “A government regulation that allows arbitrary application is ‘inherently inconsistent with a valid time, place, and manner regulation because such discretion has the potential for becoming a means of suppressing a particular point of view.’” Forsyth Cnty., 505 U.S. at 130-31 (quoting Heffron v. Int’l Soc’y for Krishna Consciousness, Inc., 452 U.S. 640, 649 (1981)); Poulos v. State of New Hampshire, 345 U.S. 395, 405-08 (1953). Florida’s felon disenfranchisement and re-enfranchisement laws together operate as an invalid prior restraint, not a valid time, place and manner regulation.
88. Defendant-Members of the Executive Clemency Board are vested with the authority to deny or grant applications for the restoration of civil rights but its discretion in issuing licenses to vote is absolute. The Board’s decisions are unconstrained by any laws or rules and guided by only the vaguest and most subjective of uncodified standards. This scheme therefore constitutes an unconstitutional prior restraint.
89. First Amendment doctrine does not require plaintiffs to demonstrate actual evidence of discriminatory and/or arbitrary treatment. The risk of such discriminatory and/or arbitrary treatment in the absence of any constraints is
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sufficient. Forsyth Cnty., 505 U.S. at 133 n.10; City of Lakewood, 486 U.S. at 76970. Nevertheless, this Complaint has alleged numerous actual instances of arbitrary and/or discriminatory treatment which directly result from a procedure marked by unconstrained official discretion in the restoration of voting rights to ex-felons.
90. FLA. CONST. art. VI, § 4(a), FLA. STAT. ANN. § 97.041(2)(a), FLA. CONST. art. IV, § 8, FLA. STAT. ANN. § 944.292(1) and the Florida Rules of Executive Clemency require that an ex-felon obtain the Executive Clemency Board’s permission in order to regain his or her right to vote, and therefore impose a prior restraint on First Amendment-protected voting. Florida state law and administrative rules and procedures contain no constraints on the Board’s discretionary power to grant or deny applications for the restoration of voting rights, making the system prone to arbitrary or discriminatory treatment. As a licensing scheme of unfettered official discretion, it violates the First Amendment to the U.S. Constitution.
91. At all relevant times, Defendants have acted under color of state law. 92. Defendants, acting under color of state law, have deprived and will continue to deprive Plaintiffs and the Plaintiff Class of their right to be free from unconstitutional prior restraints and/or unconstitutional time, place and manner regulations in seeking the restoration of their voting rights. This right is guaranteed to Plaintiffs and the Plaintiff Class by the First Amendment to the U.S. Constitution and 42 U.S.C. § 1983.
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COUNT TWO (All Plaintiffs and Plaintiff Class) (Arbitrary Allocation of the Franchise in Violation of Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and 42 U.S.C.
§ 1983) 93. The factual allegations contained in the preceding paragraphs are incorporated into Count Two, as though fully set forth herein. 94. Plaintiffs assert a claim pursuant to 42 U.S.C. § 1983 for violation of the Fourteenth Amendment to the U.S. Constitution. 95. The Fourteenth Amendment to the U.S. Constitution forbids states from “deny[ing] to any person within its jurisdiction the equal protection of the laws.” U.S. CONST. amend. XIV, § 1. 96. The Equal Protection Clause of the Fourteenth Amendment protects the right to vote and applies to both “the initial allocation of the franchise” and “the manner of its exercise.” Bush v. Gore, 531 U.S. 98, 104 (2000). 97. Defendant-Members of the Executive Clemency Board are vested with the authority to deny or grant applications for the restoration of civil rights. The board’s discretion in allocating the franchise to ex-felons is absolute and purely arbitrary in that the Board’s decisions are unconstrained by any laws or rules. 98. Not only is this restoration scheme prone to arbitrary treatment but this Complaint has alleged numerous actual instances of “arbitrary and disparate treatment,” Bush v. Gore, 531 U.S. at 104, which is the inevitable result of a voting
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rights restoration or licensing scheme devoid of any legal constraints on official discretion.
99. FLA. CONST. art. VI, § 4(a), FLA. STAT. ANN. § 97.041(2)(a), FLA. CONST. art. IV, § 8, FLA. STAT. ANN. § 944.292(1) and the Florida Rules of Executive Clemency require that an ex-felon obtain the Executive Clemency Board’s permission in order to regain his or her right to vote, and therefore turn over the allocation of the franchise to the arbitrary determinations of state officials. Florida state law and administrative rules and procedures do not in any way regulate or limit the Board’s discretionary authority to grant or deny applications for the restoration of voting rights. As a voter licensing scheme of unfettered official discretion, it also violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution.
100. At all relevant times, Defendants have acted under color of state law. 101. Defendants, acting under color of state law, have deprived and will continue to deprive Plaintiffs and the Plaintiff Class of their right to non-arbitrary treatment in the state government’s allocation of the right to vote to ex-felons. This right is guaranteed to Plaintiffs and the Plaintiff Class by the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution and 42 U.S.C. § 1983.
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COUNT THREE (All Plaintiffs and Plaintiff Class) (Lack of Definitive Time Limits for Determinations on Voting Rights Restoration Applications in Violation of the First Amendment to the United States Constitution and 42 U.S.C. § 1983) 102. The factual allegations contained in the preceding paragraphs are incorporated into Count Three, as though fully set forth herein. 103. Plaintiffs assert a claim pursuant to 42 U.S.C. § 1983 for violation of the First Amendment to the U.S. Constitution. 104. The First Amendment provides that: “Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” U.S. CONST. amend. I, § 1. 105. The First Amendment protects the right to vote because voting is both a form of speech or expressive conduct and a means of political association. Doe v. Reed, 561 U.S. 186, 195-96 & n.1 (2010); id. at 224 (Scalia, J., concurring) (“We have acknowledged the existence of a First Amendment interest in voting . . .”) (citing Burdick v. Takushi, 504 U.S. 428 (1992)); California Democratic Party v. Jones, 530 U.S. 567, 574 (2000); Timmons v. Twin Cities Area New Party, 520 U.S. 351, 354-57 (1997); McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 341-43 (1995); Burdick v. Takushi, 504 U.S. 428, 434, 437-39 (1992); Norman v. Reed, 502 U.S. 279, 288-90 (1992); Tashjian v. Republican Party of Connecticut, 479 U.S.
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208, 214-17 (1986); Munro v. Socialist Workers Party, 479 U.S. 189, 193, 199 (1986); Anderson v. Celebrezze, 460 U.S. 780, 787-89 (1983); Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184 (1979); Storer v. Brown, 415 U.S. 724, 728-29 (1974); Kusper v. Pontikes, 414 U.S. 51, 56-58 (1973); Williams v. Rhodes, 393 U.S. 23, 30-31 (1968). Because registration is a prerequisite to and/or enables voting in primary and general elections, it too is protected by the First Amendment. See Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 400 (2000) (Breyer, J., concurring) (“[A] decision to contribute money to a campaign is a matter of First Amendment concern—not because money is speech (it is not); but because it enables speech.”) (emphasis in original).
106. First Amendment doctrine clearly holds that “a prior restraint that fails to place limits on the time within which the decisionmaker must issue the license is impermissible.” FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 226 (1990) (citing Freedman v. State of Maryland, 380 U.S. 51, 59 (1965)). “Where the licensor has unlimited time within which to issue a license, the risk of arbitrary suppression is as great as the provision of unbridled discretion. A scheme that fails to set reasonable time limits on the decisionmaker creates the risk of indefinitely suppressing permissible speech.” Id. at 227; see also Riley v. Nat’l Fed’n of the Blind of North Carolina, Inc., 487 U.S. 781, 802 (1988) (“[D]elay compels the speaker’s silence.
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Under these circumstances, the licensing provision cannot stand.”); United States v. Frandsen, 212 F.3d 1231, 1238-40 (11th Cir. 2000).
107. Florida’s Executive Clemency Board is not bound by any reasonable, definite time limits in processing and reaching final decisions on applications for the restoration of civil rights. Florida state law and the Rules of Executive Clemency are devoid of any such time limits for granting or denying ex-felon applicants their right or license to vote.
108. Upon information and belief, ex-felon applicants for restoration of voting rights may wait as many as ten years to finally receive notice of a hearing and/or a determination on their applications. The backlog stood at 10,513 applicants as of March 1, 2017. Other restoration applicants may be scheduled for a hearing within months of applying. Though the significant backlog of applicants is making longer delays more common, the Executive Clemency Board and the Office of Executive Clemency may still process individual restoration applications at their own chosen speed and may deliberately fast-track selective applicants while delaying others.
109. Since no provision in Florida state law, including the Rules of Executive Clemency, requires the Board to process and adjudicate an application for restoration of civil rights within a definite, reasonable time period, FLA. CONST. art. VI, § 4(a), FLA. STAT. ANN. § 97.041(2)(a), FLA. CONST. art. IV, § 8, FLA. STAT.
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ANN. § 944.292(1) and the Florida Rules of Executive Clemency create the risk of arbitrary delays and arbitrary continued disenfranchisement and therefore violate the First Amendment.
110. FLA. CONST. art. VI, § 4(a), FLA. STAT. ANN. § 97.041(2)(a), FLA. CONST. art. IV, § 8, FLA. STAT. ANN. § 944.292(1) and the Florida Rules of Executive Clemency require that an ex-felon obtain the Executive Clemency Board’s permission in order to regain his or her right to vote, and therefore impose a prior restraint on First Amendment-protected voting. Florida state law and administrative rules and procedures contain no time constraints on the Board’s processing of and determinations regarding applications for the restoration of voting rights, making the system prone to arbitrary treatment. As a scheme of unfettered official discretion with no reasonable time limits, Florida’s voting rights restoration process violates the First Amendment to the U.S. Constitution.
111. At all relevant times, Defendants have acted under color of state law. 112. Defendants, acting under color of state law, have deprived and will continue to deprive Plaintiffs and the Plaintiff Class of their right to an ex-felon voting rights restoration scheme with definite time limits on the Board’s ultimate determinations, which is guaranteed to Plaintiffs and the Plaintiff Class by the First Amendment to the U.S. Constitution and 42 U.S.C. § 1983.
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COUNT FOUR (Plaintiff Yraida Leonides Guanipa and Subclass A) (Undue Burden on the Right to Vote in Violation of the First and Fourteenth Amendments to the U.S. Constitution and 42 U.S.C. § 1983)
113. The factual allegations contained in the preceding paragraphs are
incorporated into Count Four, as though fully set forth herein.
114. Under the First and Fourteenth Amendments to the U.S. Constitution,
any burden on the right to vote must be balanced against a state’s interest in that
requirement. The Supreme Court has set forth the following test:
[T]he rigorousness of our inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights. Thus, as we have recognized when those rights are subjected to “severe” restrictions, the regulation must be “narrowly drawn to advance a state interest of compelling importance.” Norman v. Reed, 502 U.S. 279, 289, 112 S.Ct. 698, 705, 116 L.Ed.2d 711 (1992). But when a state election law provision imposes only “reasonable, nondiscriminatory restrictions” upon the First and Fourteenth Amendment rights of voters, “the State’s important regulatory interests are generally sufficient to justify” the restrictions. Anderson, 460 U.S., at 788, 103 S.Ct., at 1569–1570; see also id., at 788–789, n. 9, 103 S.Ct., at 1569–1570, n. 9.
Burdick v. Takushi, 504 U.S. 428, 434 (1992).
115. Florida Rules of Executive Clemency 9 and 10 impose 5- and 7-year
waiting periods, respectively, on ex-felons who seek to regain their right to vote. An
ex-felon must wait out this de facto second sentence before he or she can even apply
for restoration of his or her right to vote. This is a severe restriction on the right to
vote which is not justified by or narrowly drawn to any state interest of compelling
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importance. At a minimum though, the pre-application waiting periods restrict the right to vote but cannot be justified by any important regulatory interest.
116. These ex-felons have already served their court-imposed sentences including any period of parole, probation, supervised release and/or community control. Additionally, applicants for restoration of civil rights often languish in the Executive Clemency Board’s backlog for years after they apply. Therefore, the state’s interest in imposing an additional waiting period before the disenfranchised ex-felon can apply for re-enfranchisement is neither compelling nor important.
117. Florida Rules of Executive Clemency 9 and 10 impose severely restrictive waiting periods on Plaintiff Yraida Leonides Guanipa and Subclass A members before they can even seek the Executive Clemency Board’s permission in order to regain their voting rights. Since these waiting periods are not justified by any compelling or important state interest, they violate the First and Fourteenth Amendments to the U.S. Constitution.
118. But for the waiting periods imposed by Florida Rules of Executive Clemency 9 and 10, Plaintiff Ms. Guanipa and Subclass A members would be able to apply to the Executive Clemency Board for the restoration of their voting rights upon the completion of their sentences, including any period of parole, probation, supervised release and/or community control. At present, they are barred from
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applying until 5 or 7 additional years elapse and therefore deprived of even an opportunity to regain their voting rights.
119. At all relevant times, Defendants have acted under color of state law. 120. Defendants, acting under color of state law, have unduly burdened and will continue to unduly burden Plaintiff Yraida Leonides Guanipa and Subclass A members’ rights to vote, thereby depriving them of an opportunity to regain their voting rights. The right to vote free of undue burdens is guaranteed to Plaintiff Ms. Guanipa and Subclass A by the First and Fourteenth Amendments to the U.S. Constitution and 42 U.S.C. § 1983.
PRAYER FOR RELIEF Plaintiffs, the Plaintiff Class, and Subclass A respectfully request that this Court: (a) Assume jurisdiction over this matter; (b) Certify this matter as a class action pursuant to Rules 23(a) and 23(b)(2)
of the Federal Rules of Civil Procedure; (c) Appoint counsel as class counsel pursuant to Federal Rule of Civil
Procedure 23(g); (d) Declare that Florida’s requirement in FLA. CONST. art. VI, § 4(a), FLA.
STAT. ANN. § 97.041(2)(a), FLA. CONST. art. IV, § 8, FLA. STAT. ANN. § 944.292(1) and the Florida Rules of Executive Clemency that a
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disenfranchised ex-felon must petition the Governor and his Cabinet sitting as the Executive Clemency Board for the restoration of his or her right to vote, violates the First and Fourteenth Amendments to the United States Constitution as to the right to vote; (e) Issue a permanent injunction, enjoining Defendants Governor of Florida Rick Scott, Attorney General of Florida Pam Bondi, Chief Financial Officer of Florida Jeff Atwater, Commissioner of Agriculture Adam H. Putnam, the members of the State Executive Clemency Board, Secretary of State Ken Detzner, Secretary of the Department of Corrections Julie L. Jones, Commissioner and Chair of the Florida Commission on Offender Review Melinda N. Coonrod, Commissioner of the Florida Commission on Offender Review Richard D. Davison, Commissioner of the Florida Commission on Offender Review David A. Wyant, and Coordinator for the Office of Executive Clemency of the Florida Commission on Offender Review Julia McCall, their respective agents, officers, employees, successors, and all persons acting in concert with them (collectively, “Defendants”) from enforcing FLA. CONST. art. VI, § 4(a), FLA. STAT. ANN. § 97.041(2)(a), FLA. CONST. art. IV, § 8, FLA. STAT. ANN. § 944.292(1) and the Florida Rules of Executive Clemency as to Plaintiff Class members’ right to vote;
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(f) Issue a permanent injunction, enjoining Defendants from requiring Plaintiff Class members to petition the Executive Clemency Board for and secure the restoration of their voting rights – pursuant to FLA. CONST. art. VI, § 4(a), FLA. STAT. ANN. § 97.041(2)(a), FLA. CONST. art. IV, § 8, FLA. STAT. ANN. § 944.292(1) and the Florida Rules of Executive Clemency.
(g) Issue a permanent injunction, enjoining Defendants from denying any member of the Plaintiff Class the right to register to vote and cast a ballot in the State of Florida on the grounds of his or her prior felony convictions;
(h) Issue a permanent injunction requiring Defendants Governor of Florida Rick Scott, Attorney General of Florida Pam Bondi, Chief Financial Officer of Florida Jeff Atwater, Commissioner of Agriculture Adam H. Putnam, the members of the State Executive Clemency Board, their respective agents, officers, employees, successors, and all persons acting in concert with them, to revise the Florida Rules for Executive Clemency, the Application for Clemency, and the Executive Clemency Board’s website to reflect that Plaintiff Class members may register to vote and vote upon completion of their sentences;
(i) Issue a permanent injunction requiring Defendant Secretary of State Detzner, his respective agents, officers, employees, successors, and all persons acting in concert with him, including but not limited to all of
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Florida’s County Supervisors of Elections, to revise all paper and electronic materials including the Florida Voter Registration Application, the Secretary of State’s website, and the County Supervisors of Elections websites to reflect that Plaintiff Class members may register to vote and vote upon completion of their sentences; to provide revised training and guidance for the County Supervisors of Elections and their staff on the judgment in this case; to e-mail and mail notices to the County Supervisors of Elections announcing the judgment in this case; and to issue a directive to the County Supervisors of Elections instructing them not to reject the voter registration applications or votes of any Plaintiff Class members on account of their prior felony convictions; (j) Issue a permanent injunction requiring Secretary of the Department of Corrections (“DOC”) Julie L. Jones, her respective agents, officers, employees, successors, and all persons acting in concert with her, to inform all individuals released from DOC custody with no further period of parole, probation, supervised release and/or community control that they can register to vote and vote; to inform all individuals released from DOC custody subject to a period of parole, probation, supervised release and/or community control that they will be able to register to vote and vote once they complete their sentences including parole, probation, supervised
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release and/or community control; and on a monthly basis, to send to the Florida Secretary of State’s office and the Florida Commission on Offender Review e-mailed and paper copies of the full list of names and personally identifying information of all ex-felons who have completed their sentences including any period of parole, probation, supervised release and/or community control in the previous month; (k) Issue a permanent injunction requiring Commissioner and Chair of the Florida Commission on Offender Review Melinda N. Coonrod, Commissioner of the Florida Commission on Offender Review Richard D. Davison and Commissioner of the Florida Commission on Offender Review David A. Wyant, their respective agents, officers, employees, successors, and all persons acting in concert with them, to ensure all communications with ex-felons inform all pending and new applicants for restoration of civil rights that their rights to vote have been automatically restored upon completion of sentence, their applications are moot as to the right to vote but not as to the right to serve on a jury or the right to run for public office, and that they are now qualified to register to vote and vote in the State of Florida; and directing the Commissioners to revise the website of the Florida Commission on Offender Review to reflect the judgment in this case;
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(l) Issue a permanent injunction requiring Coordinator for the Office of Executive Clemency of the Florida Commission on Offender Review Julia McCall, her respective agents, officers, employees, successors, and all persons acting in concert with her, to inform all pending and new applicants for restoration of civil rights that their rights to vote have been automatically restored upon completion of their sentences, their applications are moot as to the right to vote but not as to the right to serve on a jury or the right to run for public office, and that they are now qualified to register to vote and vote in the State of Florida;
(m) In the alternative – and only if the Court rules in favor of Plaintiffs solely on Count Four – declare the 5- and 7-year waiting periods in Florida Rules of Executive Clemency 9 and 10 unconstitutional in violation of the First and Fourteenth Amendments to the U.S. Constitution as to members of Subclass A of the Plaintiff Class; permanently enjoin the enforcement of these requirements by Defendants as to members of Subclass A of the Plaintiff Class; and require the Florida Department of Corrections, Commission on Offender Review and Office of Executive Clemency to revise all communications, materials, websites, applications and any other relevant internal or public-facing documents and/or materials to reflect that
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Subclass A members may apply for restoration of their voting rights

immediately upon completion of their sentences;

(n) Retain jurisdiction to enforce its order;

(o) Grant Plaintiffs their reasonable attorneys’ fees and costs incurred in

bringing this action pursuant to 42 U.S.C. § 1988, 28 U.S.C. § 1920, and

as otherwise permitted by law; and

(p) Grant such other relief as this Court deems just and proper.

DATED: April 27, 2017

Respectfully submitted,

/s/ Jon Sherman

Jon Sherman* D.C. Bar No. 998271 New York Bar No. 4697348 Brittnie R. Baker Florida Bar No. 119058 D.C. Bar No. 1033708 Fair Elections Legal Network 1825 K St. NW, Suite 450 Washington, DC 20006 jsherman@fairelectionsnetwork.com bbaker@fairelectionsnetwork.com Phone: (202) 331-0114

Theodore Leopold Florida Bar No. 705608 Diana L. Martin Florida Bar No. 624489 Cohen Milstein Sellers & Toll PLLC 2925 PGA Boulevard | Suite 200 Palm Beach Gardens, FL 33410 tleopold@cohenmilstein.com dmartin@cohenmilstein.com
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phone 561.515.1400 fax 561.515.1401 *Appearing Pro Hac Vice in the United States District Court for the Northern District of Florida
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this First Amended Complaint
was served upon the following parties via the NextGen CM/ECF system on April
27, 2017:
Ashley Davis Assistant Attorney General Fla. Bar No.: 48032 PL-01, The Capitol Tallahassee, FL 32399-1050 850-414-3300, ext. 3887 850-414-9650 (fax) Ashley.davis@myfloridalegal.com chanda.johnson@myfloridalegal.com
Jonathan Alan Glogau Chief, Complex Litigation Florida Bar # 371823 Office of the Attorney General PL-01, The Capitol Tallahassee, FL 32399-1050 850-414-3300 Jon.glogau@myfloridalegal.com chanda.johnson@myfloridalegal.com
Jordan E. Pratt Office of the Attorney General – Tallahassee FL The Capitol STE PL-01 400 S Monroe St. Tallahassee, FL 32399 850-414-3300 Email: jordan.pratt@myfloridalegal.com
David Andrew Fugett Florida Department of State Office of General Counsel 500 S Bronough Street
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Suite 100 Tallahassee, FL 32399-0250 850-245-6536 Fax: 850-245-6127 Email: david.fugett@dos.myflorida.com
William Jordan Jones Florida Department of State 500 South Bronough Street Tallahassee, FL 32399-0250 850-245-6536 Email: jordan.jones@dos.myflorida.com
Attorneys for Defendants
April 27, 2017

/s/ Jon Sherman

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 Case 4:17-cv-00128-MW-CAS Document 144 Filed 02/01/18 Page 1 of 43

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION

JAMES MICHAEL HAND, et al.,

Plaintiffs,

v.

Case No. 4:17cv128-MW/CAS

RICK SCOTT, in his official capacity as Governor of Florida and member of the State of Florida’s Executive Clemency Board, et al.,

Defendants. __________________________/

ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

Florida strips the right to vote from every man and woman who commits

a felony. To vote again, disenfranchised citizens must kowtow before a panel

of high-level government officials over which Florida’s Governor has absolute

veto authority. No standards guide the panel. Its members alone must be

satisfied that these citizens deserve restoration. Until that moment (if it ever

comes), these citizens cannot legally vote for presidents, governors, senators,

representatives, mayors, or school-board members. These citizens are subject

to the consequences of bills, actions, programs, and policies that their elected

leaders enact and enforce. But these citizens cannot ever legally vote unless

Florida’s Governor approves restoration of this fundamental right.

Case 4:17-cv-00128-MW-CAS Document 144 Filed 02/01/18 Page 2 of 43
Florida’s Executive Clemency Board has, by rule, unfettered discretion
in restoring voting rights. “We can do whatever we want,” the Governor said
at one clemency hearing. ECF No. 29, at ¶ 55 n.26. One need not search long
to find alarming illustrations of this scheme in action. In 2010, a white man,
Steven Warner, cast an illegal ballot. Three years later, he sought the
restoration of his voting rights. He went before the state’s Executive Clemency
Board, where Governor Scott asked him about his illegal voting.
“Actually, I voted for you,” he said. The Governor laughed. “I probably
shouldn’t respond to that.” A few seconds passed. The Governor then granted
the former felon his voting rights. ECF No. 101-159; ECF No. 29, at ¶ 65.
This is a facial challenge to Florida’s re-enfranchisement scheme.1
Plaintiffs and Defendants both move for summary judgment on cross motions.2
1 Throughout this order, “re-enfranchisement” and “vote-restoration” are used interchangeably. This is not to be confused with other types of clemency that Florida offers. For example, the restoration of an individual’s right to keep and bear arms is guided by a different set of rules and involves a different set of considerations—such as considerations of public safety—that have zero bearing on re-enfranchisement. See Fla. R. Exec. Clemency 4 (listing the types of clemency).
2 Plaintiffs are a group of nine former felons who have completed their sentences, including any probationary requirements, but are not eligible to vote. ECF No. 29, at ¶¶ 18–26. Seven of the Plaintiffs have had their restoration applications rejected. Id. at ¶¶ 18–21, 23–25. An eighth Plaintiff’s application has been pending for several years. Id. at ¶ 22. A final Plaintiff is not eligible to apply for restoration until June 2019. Id. at ¶ 26. Defendants are members of Florida’s Executive Clemency Board (“Board”): the Governor, Attorney General, Chief Financial Officer, and Commissioner of Agriculture (“Defendants”). There is no dispute over standing. This Court accepts the facts in the light most favorable to the non-movant. See Galvez v. Bruce, 552 F.3d 1238, 1239 (11th Cir. 2008). All reasonable doubts about the facts shall be resolved in favor of the non-movant. Id. The standards governing cross-motions for summary judgment are the same, although the court must construe the motions independently, viewing the evidence presented by each moving party in the light most favorable to the non-movant. Lozman v. City of Riviera Beach, 39 F. Supp. 3d 1392, 1404 (S.D. Fla. 2014) (citations omitted). The parties agree to all material facts. The only disputes relate to questions of law. “‘Where the unresolved issues are primarily
2

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This Court has considered, without hearing, the parties’ motions for summary judgment, their replies, and the record before it. In Florida, elected, partisan officials have extraordinary authority to grant or withhold the right to vote from hundreds of thousands of people without any constraints, guidelines, or standards. The question now is whether such a system passes constitutional muster. It does not.
I Florida automatically disenfranchises any individual who has been convicted of a felony. FLA. CONST. art. VI, § 4(a); FLA. STAT. ANN. § 97.041(2)(b). But the Florida Constitution authorizes the Governor, with the approval of at least two other Board members, to restore civil rights. FLA. CONST. art. IV § 8(a); FLA. STAT. ANN. § 944.292(1). The Office of Executive Clemency “was created to assist in the orderly and expeditious exercise of this executive power.” Fla. R. Exec. Clemency 2(B). The Board is guided by the Rules of Executive Clemency (“Rules”). The Rules are not “intended to limit the authority or discretion” of the Board. Fla. R. Exec. Clemency 2(A). The Governor alone “has the unfettered discretion to deny clemency at any time, for any reason.” Fla. R. Exec. Clemency 4. The
legal rather than factual, summary judgment is particularly appropriate.’” Bruley v. Vill. Green Mgmt. Co., 592 F. Supp. 2d 1381, 1388 (M.D. Fla. 2008) (quoting Uhl v. Swanstrom, 79 F.3d 751, 754 (8th Cir. 1996)).
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Governor and two Board members have “the unfettered discretion to grant, at any time, for any reason” several types of clemency, including the restoration of voting rights. Id.
The Rules outline the procedures former felons must undertake to have their voting rights restored. ECF No. 103, Ex. J, at 20. Former felons must wait either five or seven years from the completion of their sentence—including probation, parole, and fines—to apply for restoration, depending on the severity of the crime. See Fla. R. Exec. Clemency 9(A)(4) (listing crimes ineligible for a five-year pre-application waiting period).
The Florida Commission on Offender Review (“FCOR”) reviews all applications and provides a non-binding recommendation to the Board. FCOR “operates as the administrative and investigative arm of the Board.” FCOR Annual Rep. 2016–17, at 5 (“Annual Rep.”). It investigates all applicants who require a hearing before the Board. In doing so, it considers various factors, such as criminal and traffic records, the applicant’s payment of fines, alcohol and substance use, voter registration information, and any input from the judiciary, state attorneys, and victims. Id. at 15. After its investigation, FCOR creates a report called the Confidential Case Analysis (“CCA”). ECF No. 103, at 7. The Board can consider information in the CCA. Id.; see also Annual Rep., at 15 (describing “the Commission’s advisory recommendation . . . to the Board”).
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The Board generally meets four times a year. Fla. R. Exec. Clemency 12(A). Applicants are not required to attend their hearings, but the Rules “encourage” applicants to attend. Fla. R. Exec. Clemency 12(B). If applicants attend, they may speak for no more than five minutes. Fla. R. Exec. Clemency 12(C). Others may speak in the applicant’s favor, but the applicant’s whole presentation cannot exceed ten minutes. Id.
In making its decisions, the Board can examine—but does not have to— assorted factors. These factors include drug and alcohol use, traffic violations, whether the applicant has voted despite legally being disenfranchised, employment status, family, and the Board’s perceptions on the applicant’s attitude, level of remorse, and whether she has turned her life around. ECF No. 103, at 8 (citations omitted). If an applicant is denied restoration, she cannot reapply for at least two years. Fla. R. Exec. Clemency 14.
II A An individual’s status as a former felon does not deprive her of a voterestoration process free from the First Amendment’s protections. Defendants’ assert that once a felon loses the right to vote, she loses all interests associated with that right, including those under the First Amendment, until her voting rights are restored. ECF No. 103, at 30–32; ECF No. 137, at 24–25; ECF No. 141, at 18–19. This Court finds Defendants’ reasoning to be nonsensical. 5

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It is well-settled that a state can disenfranchise convicted felons under Section Two of the Fourteenth Amendment. Richardson v. Ramirez, 418 U.S. 24, 56 (1974). “Florida’s discretion to deny the vote to convicted felons is fixed by the text of § 2 of the Fourteenth Amendment.” Johnson v. Bush, 405 F.3d 1214, 1228 (11th Cir. 2005) (en banc).
But it is also well-settled that a state cannot disenfranchise a convicted felon if motivated by racial animus. Hunter v. Underwood, 471 U.S. 222, 233 (1985). “We are confident,” the Supreme Court stated, “that § 2 was not designed to permit the purposeful racial discrimination . . . which otherwise violates § 1 of the Fourteenth Amendment.” Id. Nor may a state disenfranchise a convicted felon for any arbitrary reason. Shepherd v. Trevino, 575 F.2d 1110, 1114 (5th Cir. 1978) (“Nor can we believe that section 2 would permit a state to make a completely arbitrary distinction between groups of felons with respect to the right to vote.”).3 State laws and regulations cannot, for example, “disenfranchise similarly situated blue-eyed felons but not brown-eyed felons.” Owens v. Barnes, 711 F.2d 25, 27 (3d Cir. 1983).
If a state cannot disenfranchise for arbitrary reasons, a state cannot disenfranchise convicted felons in a manner repugnant to the First
3 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.
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Amendment. A state cannot yank the right to vote from a Republican felon but
retain voting rights for Democratic felons. Imagine a state bold enough to set
in place a process—perhaps concurrent with criminal sentencing—where a
panel of elected officials, empowered with boundless discretion but with a clear
interest in shaping the electorate, decide that some felons can retain voting
rights but others would be permanently barred from choosing their elected
representatives. Such a scheme might be arbitrary.4 It might also violate the
First Amendment. Neither would be constitutional.
A similar logic applies to restoration of voting rights.5 When a state
institutes a process to restore voting rights to felons who have completed their
4 This hypothetical scheme is similar to a Mississippi disenfranchisement structure that the Fifth Circuit found problematic. Williams v. Taylor, 677 F.2d 510 (5th Cir. 1982). A county election board denied a black felon voting rights pursuant to state law but the record showed “other felons in the community who [had] not been disenfranchised although they f[e]ll within the statute.” Id. at 513. The Fifth Circuit concluded the county election board “cannot discriminate arbitrarily among felons who fall within the group classified for mandatory disenfranchisement.” Id. at 515. While a felon “has no right to vote . . . he has the right not to be the arbitrary target of the Board’s enforcement of the statute.” Id. at 517. This reasoning is persuasive.
5 It would be tomfoolery of the highest order if, for example, the Constitution prohibits a state from racially discriminating in the disenfranchisement of felons but allows it to racially discriminate in the re-enfranchisement of former felons. If anything, the constitutional limitations for vote-restoration should be construed more broadly than those for disenfranchisement because vote-restoration involves the allocation (or re-allocation, as the case may be) of a fundamental right. This Court, however, acknowledges non-binding authority from some circuit courts stating that former felons do not have a fundamental right to vote. Harvey v. Brewer, 605 F.3d 1067, 1079 (9th Cir. 2010); Johnson v. Bredesen, 624 F.3d 742, 746 (6th Cir. 2010). Accordingly, this Court analyzes Florida’s vote-restoration process with the same constitutional limitations as states’ disenfranchisement laws.
Additionally, this Court notes that Harvey and Bredesen are distinguishable from Plaintiffs’ First Amendment claims because plaintiffs there invoked the Twenty Fourth Amendment, which applies to citizens who have voting rights. See U.S. CONST. amend. XXIV, § 1 (“The right of citizens . . . to vote . . . shall not be denied or abridged by the United States or any State by reason of
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sentences, that process cannot “permit . . . purposeful racial discrimination.” Hunter, 471 U.S. at 233; see also Harvey, 605 F.3d at 1079 (“[A] state could not choose to re-enfranchise voters of only one particular race.”). Restoration cannot be arbitrary. A state cannot “re-enfranchise only those felons who are more than six-feet tall,” who are blue-eyed, who were born in August, who root for the Florida Gators, or who call heads during a coin flip. Id. Nor can it violate the First Amendment.
Defendants essentially argue that vote-restoration for former felons can only occur on the state’s terms. ECF No. 103, at 30–31. Once a felon loses the right to vote, only the state may grant it back in a manner of its choosing. Id. 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. Fla. R. Exec. Clemency 1.
failure to pay any poll tax or other tax.”). Nothing in our Nation’s case law, traditions, or values limits the First Amendment’s application to voters or non-voters.
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Former felons’ pathway back to full citizenship—one in which these members of Florida’s communities have a voice in the selection of their government—cannot be tainted by even the slightest stench of viewpoint discrimination. 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.
B Plaintiffs have the right to free association and expression under the First Amendment. Because the First Amendment protections in the context of felony re-enfranchisement is a matter of first impression, this Court first identifies the scope of these protections. If Plaintiffs were, for example, alleging First Amendment violations based on the discretion a police officer has in penalizing a speeding driver with a friendly warning or a steep monetary fine, the inquiry would be brief: there is no First Amendment protection against an officer issuing a fine versus a warning. Here, however, Florida’s voterestoration scheme violates two First Amendment rights; namely, free association and free expression. 1. The Right to Free Association. “It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment, which
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embraces freedom of speech.” NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460 (1958). Associational rights are grounded on the principle that there is safety—and power—in numbers. People “associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.” Roberts v. U.S. Jaycees, 468 U.S. 609, 622 (1984). Conversely, protecting associational rights “is crucial in preventing the majority from imposing its views on groups that would rather express other, perhaps unpopular, ideas.” Boy Scouts of Am. v. Dale, 530 U.S. 640, 647–48 (2000). “Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association.” Patterson, 357 U.S. at 460.
The right to associate is afforded particular protection in the realm of political association. “[P]olitical belief and association constitute the core of those activities protected by the First Amendment.” Elrod v. Burns, 427 U.S. 347, 356 (1976). “[T]he right of individuals to associate for the advancement of political beliefs . . . rank[s] among our most precious freedoms.” Williams v. Rhodes, 393 U.S. 23, 30 (1968); see also Kusper v. Pontikes, 414 U.S. 51, 56–57 (1973) (“There can no longer be any doubt that freedom to associate with others for the common advancement of political beliefs and ideas is a form of ‘orderly group activity’ protected by the First and Fourteenth Amendments.”) (quoting NAACP v. Button, 371 U.S. 415, 430 (1963)). Political association is—like associational rights generally—based on the principle that like-minded
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individuals can act in concert to influence policy in the political and electoral spheres. Cal. Democratic Party v. Jones, 530 U.S. 567, 574 (2000) (“Representative democracy in any populous unit of governance is unimaginable without the ability of citizens to band together in promoting among the electorate candidates who espouse their political views.”).
A common thread runs through associational rights cases. Courts are deeply averse to state laws, regulations, and schemes that threaten political associations by favoring one association—or political party—over others. The Supreme Court struck down an Ohio law that “g[a]ve the two old, established parties a decided advantage over any new parties struggling for existence and thus place[d] substantially unequal burdens on both the right to vote and the right to associate.” Rhodes, 393 U.S. at 31. The Court also invalidated an Ohio law that “amount[ed] to a desire to protect existing political parties from competition—competition for campaign workers, voter support, and other campaign resources—generated by independent candidates who have previously been affiliated with the party.” Anderson v. Celebrezze, 460 U.S. 780, 801 (1983). In Tashjian v. Republican Party of Connecticut, the Supreme Court struck down a Connecticut law requiring would-be primary voters to register with a party before voting in that party's primary. 479 U.S. 208, 229 (1986). Such a scheme was an impermissible burden on associational rights because it “limit[ed] the Party’s associational opportunities at the crucial
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juncture at which the appeal to common principles may be translated into
concerted action, and hence to political power in the community.” Id. at 216.6
The Court, in short, has repeatedly recoiled from anything that resembles a
thumb on the scales of association and, by extension, the democratic process.
2. The Right to Free Expression.
An individual also has the right to express her views without risk of
censorship.7 Government suppression of political expression based on its
actual or perceived content is one of the most repugnant actions that the First
Amendment prevents. “[A]bove all else, the First Amendment means that
government has no power to restrict expression because of its message, its
ideas, its subject matter, or its content.” Police Dep’t of Chicago v. Mosley, 408
U.S. 92, 95 (1972); see also Texas v. Johnson, 491 U.S. 397, 414 (1989) (“If there
is a bedrock principle underlying the First Amendment, it is that the
government may not prohibit the expression of an idea simply because society
finds the idea itself offensive or disagreeable.”).
6 Suspect actors are not limited to state legislatures. Judge Tjoflat explained during the 2000 election that a state supreme court can endorse a scheme violating the freedom of association. “By deciding that [ballots containing] dimples were valid votes but that those votes would be counted only in counties selected by the candidates, the Florida Supreme Court's decision disenfranchised dimple voters in the remaining counties and thereby trampled the right of association enjoyed by plaintiffs and all Florida voters.” Touchston v. McDermott, 234 F.3d 1133, 1154 (11th Cir. 2000) (Tjoflat, J., dissenting). Such a recount method placed a thumb on the scales of association: “the selective dimple model denies plaintiffs' and other Bush voters the fruits of their association, to wit: their political impact.” Id. 7 Exceptions exist, of course, though they are not implicated here. See United States v. Stevens, 559 U. S. 460, 468 (2010) (listing familiar categories of speech and activity not protected under the First Amendment, such as fraud, defamation, obscenity, and incitement).
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The Supreme Court has not clearly characterized voting as a form of expression and explicitly declined to do so in 1966. Harper v. Va. Bd. of Elections, 383 U.S. 663, 665 (1966) (“We do not stop to canvass the relation between voting and political expression.”). On the one hand, the Court observed that an election’s primary purpose is to choose candidates rather than “provide a means of giving vent to ‘short-range political goals, pique, or personal quarrel[s].’” Burdick v. Takushi, 504 U.S. 428, 438 (1992) (quoting Storer v. Brown, 415 U.S. 724, 735 (1974)). “Ballots serve primarily to elect candidates, not as forums for political expression.” Timmons v. Twin Cities Area New Party, 520 U.S. 351, 363 (1997) (emphasis added). More recently, a majority of the Court rejected a public official’s First Amendment challenge to a Nevada law prohibiting him from voting because of a conflict of interest. Nev. Comm’n on Ethics v. Carrigan, 564 U.S. 117, 127 (2011). Although the Court rejected the official’s argument holding that “legislative power . . . is not personal to the legislator but belongs to the people,” it also cited from Burdick and Timmons and concluded “a legislator has no right to use official powers for expressive purposes.” Id. at 126, 127.
On the other hand, the Court has never unequivocally severed the right to vote from the right to expression.8 It has occasionally identified expressive
8 The closest it has come was in Carrigan, where the Court’s majority remarked in dicta that it had “rejected the notion that the First Amendment confers a right to use governmental mechanics to convey a message.” 564 U.S. at 127. But this cramped characterization of voting’s expressive
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elements in voting. The right of citizens “to create and develop new political parties,” the Court has stated, “derives from the First and Fourteenth Amendments and advances the constitutional interest of like-minded voters to gather in pursuit of common political ends, thus enlarging the opportunities of all voters to express their own political preferences.” Norman v. Reed, 502 U.S. 279, 288 (1992) (emphasis added). Citizens have strong interests “to associate together to express their support” for a candidate and her views. Anderson, 460 U.S. at 806 (emphasis added). “[V]oting is, among other things, a form of speech.” Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 425 (Stevens, J., concurring in part and dissenting in part).
The Supreme Court has identified an array of political activities as deserving protection under the First Amendment. In Citizens United, the Court overruled precedent and struck down a federal law prohibiting corporate independent expenditures within certain time periods before elections because it was “a ban on speech.” Id. at 339. In Doe v. Reed, the Supreme Court recognized petition-signing in the context of Washington’s ballot referendums as “express[ing] the political view that the question should be considered ‘by
features is further distinguishable by the facts of that case—there, the public official’s vote was a “core legislative function.” Id. at 121 (internal quotation marks omitted). This Court finds Justice Alito’s reasoning convincing. “If an ordinary citizen casts a vote in a straw poll on an important proposal pending before a legislative body, that act indisputably constitutes a form of speech.” Id. at 134 (Alito, J., concurring). This rationale can apply in equal, if not greater, force to voting in general and primary elections for local, state, and federal office.
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the whole electorate.’” 586 U.S. 186, 195 (2010) (quoting Meyer v. Grant, 486 U.S. 414, 421 (1988)). Even though this expressive act “may ultimately have the legal consequence” of requiring Washington to hold a referendum, the Court did “not see how adding such legal effect to an expressive activity somehow deprives that activity of its expressive component, taking it outside the scope of the First Amendment.” Id. Partisan redistricting also has First Amendment implications. “The First Amendment may be the more relevant constitutional provision in future cases that allege unconstitutional partisan gerrymandering” because such schemes implicate voters’ “First Amendment interest of not burdening or penalizing citizens because of . . . their association with a political party, or their expression of political views.” Vieth v. Jubelirer, 541 U.S. 267, 314 (2004) (Kennedy, J., concurring). Recently, a three-judge panel struck down North Carolina’s congressional redistricting maps partly because it violated voters’ First Amendment rights. Common Cause v. Rucho, 2018 WL 341658, at *63 (M.D.N.C. Jan. 9, 2018) (finding, inter alia, that North Carolina’s maps discriminated against and burdened voters who opposed Republican candidates along viewpoint, speech, and associational lines). Finally, this Court has determined that voter registration and related actions constitute “core First Amendment activity.” League of Women Voters of Fla. v. Browning, 863 F. Supp. 2d 1155, 1158 (N.D. Fla. 2012).
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In the absence of binding precedent holding that the right to vote is wholly independent of the right to free expression, this Court finds persuasive the idea that “[t]he First Amendment protects more than just the individual on a soapbox and the lonely pamphleteer.” Citizens United, 558 U.S. at 373 (Roberts, C.J., concurring). After all, “[l]aws enacted to control or suppress speech may operate at different points in the speech process.” Id. at 336 (majority opinion). 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. There is some measure of expressive activity in “winnow[ing] out and finally reject[ing] all but the chosen candidates.” Storer, 415 U.S. at 735. 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.9
“No right is more precious in a free country than that of having a voice in the election of those who make the laws.” Wesberry v. Sanders, 376 U.S. 1, 17 (1964). In our democratic society where the people are sovereign, voting is the citizen’s ultimate form of political expression. By first seeking the vote and
9 As Justice Stevens has observed, “voting is not speech in a pure or formal sense, but then again neither is a campaign expenditure; both are . . . communicative acts aimed at influencing electoral outcomes.” Citizens United, 558 U.S. at 425 n.52 (Stevens, J., concurring in part and dissenting in part).
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then choosing to cast a ballot, a citizen expresses support for the franchise as a legitimate institution—the beating heart of our democratic government. By choosing not to vote, she may express dissatisfaction with the government or a particular outcome. And by voting, a citizen expresses her political point of view.
C In Count One, Plaintiffs claim that Florida officials’ unfettered discretion in restoring voting rights violates the First Amendment. This Court agrees. Unfettered executive discretion imposes serious burdens on Plaintiffs’ First Amendment rights to free association and free expression. Plaintiffs wish to register and vote in future primary and general elections “for candidates of their choice and ballot initiatives” as well as “to support and associate with political parties in order to advance the parties’ goals.” ECF No. 29, at ¶ 27. A former felon may deeply believe in the ideas of one political party and genuinely wish to associate with it. She may wish to express her support for the party’s policies to her community, to the public, and elected officials by voting for the party’s candidates. But the state requires her to complete her sentence, including any terms of parole and probation, wait five or seven years, submit documentation, and is encouraged to appear before one of four semiannual meetings of the Board in Tallahassee to plead her case. This process,
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to say the least, is burdensome—even if it were neutral, transparent, and uniform to all former felons.10
But Florida goes several steps further. The ultimate re-enfranchisement decision is in the hands of four high-level elected officials. The Governor must assent to the restoration. The Board has, by rule, “unfettered discretion” in making these consequential decisions “at any time, for any reason.” Fla. R. Exec. Clemency 4. So the state then requires the former felon to conduct and comport herself to the satisfaction of the Board’s subjective—and, frankly, mythical—standards. See id. (stating that the Governor may deny clemency “for any reason”) (emphasis added). Only then is she free to associate with her party of choice and express through voting her support for her party’s policies.
Courts view unfettered governmental discretion over protected constitutional rights with profound suspicion. “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.” W. Va. Bd. of Ed. v. Barnette, 319 U.S. 624, 642–43 (1943). The Supreme Court has consistently struck down laws consigning First Amendment-protected activities “to the whim of the administrator.” Forsyth Cty., Ga. v. Nationalist Movement, 505 U.S. 123, 133 (1992). “The First
10 Because Florida does not have system of vote-restoration that is neutral, transparent, or uniform, this Court does not comment on the permissibility of such a scheme.
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Amendment prohibits the vesting of such unbridled discretion in a government official.” Id.; see also City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 757 (1988) (listing a “long line of precedent” outlining the Supreme Court’s skepticism in “placing unbridled discretion in the hands of a government official or agency”).
This Court reviews laws permitting such official discretion, when they burden citizens’ First Amendment rights, under an exacting standard of scrutiny. Patterson, 371 U.S. at 460–61 (“[S]tate action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny.”). “As our past decisions have made clear, a significant encroachment upon associational freedom cannot be justified upon a mere showing of a legitimate state interest.” Kusper, 414 U.S. at 58; see also Boy Scouts of Am., 530 U.S. at 648 (explaining how “the freedom of expressive association . . . could be overridden ‘by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms’” (quoting Roberts, 468 U.S. at 623)). In the Eleventh Circuit, a Florida scheme bestowing state officials “unfettered discretion” to reconsider excluded candidates from the presidential ballot withered under strict scrutiny. Duke v. Smith, 13 F.3d 388, 395 (11th Cir. 1994). The state’s Presidential Candidate Selection Committee’s lack of standards guiding government officials “subjected [candidates] to
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severe restrictions.” Id. The risk of “arbitrary and discriminatory enforcement . . . cannot be squared with our constitutional standards.” Id. (quoting Papachristou v. City of Jacksonville, 405 U.S. 156, 170–71 (1972)).
The question is whether the Clemency Board’s limitless power over Plaintiffs’ vote-restoration violates their First Amendment rights to free association and free expression. It does. This should not be a close question.
Defendants argue that the vote-restoration’s structure furthers a state interest in “limiting the franchise to responsible voters.” ECF No. 103, at 18 (quoting Shepherd, 575 F.2d at 1115). And, according to Defendants, individualized review allows the Board to “gauge the progress and rehabilitation” of former felons. Id. (quoting Shepherd, 575 F.2d at 1115).11 Nonetheless, the means Florida employs to achieve these ends does not survive strict scrutiny.
A state may have a legitimate interest in limiting the franchise to responsible individuals.12 Johnson v. Bush, 405 F.3d at 1225 (“Florida has a
11 Because Defendants largely reject the applicability of Plaintiffs’ First Amendment arguments, see ECF No. 103, at 30–31, this Court looks to defendants’ relevant arguments regarding the state’s interests in maintaining the vote-restoration scheme from their briefs on the equal protection claim. 12 While this Court is bound by Shepherd, this Court also acknowledges that “responsible voters” is a nebulous term a state can abuse. A “responsible voter” might be one who has failed to brush his teeth, sped through a school zone, and parked across three parking spaces at the polling place. Meanwhile an “irresponsible voter” may have been released from prison thirty years ago, been an upstanding citizen since that day, but is nonetheless denied the vote because the Board “can do whatever [they] want”. ECF No. 29, at ¶ 55 n.26.
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legitimate reason for denying the vote to felons.”). Indeed, 48 states bar, in some form or another, incarcerated men and women from casting ballots during elections.13 ECF No. 102, at 1–2. At the time the Fourteenth Amendment passed, 29 states prohibited (or authorized their legislatures to prohibit) convicted felons from voting. Richardson, 418 U.S. at 48. Limiting the vote to non-felons has been a state interest for many years, including in Florida. Johnson v. Bush, 405 F.3d at 1218–22 (outlining Florida’s history of felon disenfranchisement).
But Florida does not use the least-restrictive means to pursue its interests in preventing possibly irresponsible citizens from choosing their leaders. “[E]ven when pursuing a legitimate interest, a State may not choose means that unnecessarily restrict constitutionally protected liberty.” Kusper, 414 U.S. at 58–59. “[W]e have required that States adopt the least drastic means to achieve their ends.” Ill. State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 185 (1979).
Florida’s vote-restoration scheme is crushingly restrictive. The scheme crumbles under strict scrutiny because it risks—if not covertly authorizes the practice of—arbitrary and discriminatory vote-restoration. When a scheme allows government officials to “do whatever [they] want,” viewpoint
13 Only Vermont and Maine permit incarcerated individuals to vote. See ME. REV. STAT. tit. 21-A, § 112-14 (2009) and VT. STAT. ANN. tit. 17 § 2121 (West 2011).
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discrimination can slip through the cracks of a seemingly impartial process. ECF No. 29, at ¶ 55. Such discrimination can lead to a denial of “the fruits of their association, to wit: [former felons’] political impact”—or widespread, insidious bias to benefit the Governor’s political party. Touchston, 234 F.3d at 1154 (Tjoflat, J., dissenting). State officials’ potential political, racial, or religious biases cannot poison the well of vote-restoration.
Viewpoint discrimination is deeply antithetical to the Constitution and our Nation’s longstanding values. Reed v. Town of Gilbert, 135 S. Ct. 2218, 2230 (2015) (“Government discrimination among viewpoints—or the regulation of speech based on ‘the specific motivating ideology or the opinion or perspective of the speaker’—is a ‘more blatant’ and ‘egregious form of content discrimination.’”) (quoting Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 829 (1995)); see also Citizens United, 558 U.S. at 340 (stating that First Amendment “restrictions based on the identity of the speaker are all too often simply a means to control content”). Moreover, even the risk of viewpoint discrimination runs afoul of the First Amendment. Turner Broad. Sys. v. FCC, 512 U.S. 622, 641 (1994) (stating that “[g]overnment action that stifles speech on account of its message . . . pose[s] the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information or manipulate the public debate through coercion rather than persuasion”) (emphasis added); see also Forsyth
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Cty, 505 U.S. at 133 n.10 (“[T]he success of a facial challenge on the grounds that an ordinance delegates overly broad discretion to the decisionmaker rests not on whether the administrator has exercised his discretion in a contentbased manner, but whether there is anything in the ordinance preventing him from doing so.”).
In Florida, the risk of viewpoint discrimination is distressingly real. Plaintiffs identify several instances of former felons who professed political views amenable to the Board’s members who then received voting rights, while those who expressed contrary political views to the Board were denied those same rights. Applicants—as well as their character witnesses—have routinely invoked their conservative beliefs and values to their benefit. See ECF No. 102, at 27–28 (listing examples of former felons having their rights restored after invoking their political beliefs).
Similar disparities arise when applicants criticize the system. For example, a Navy veteran decried felon disenfranchisement before the Governor rejected his application because of traffic infractions. Id. at 28–29. But ten former felons—who did not speak out against felony disenfranchisement— were re-enfranchised despite less-than-perfect traffic records. Id. at 31–32.
That’s not all. Similar conduct can lead to different results in front of the Board. The Governor asked one former felon, Steven Warner, about an illegal vote he cast in 2010—before his voting rights were restored. ECF No. 29, at ¶
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65; ECF No. 101-159. “Actually, I voted for you,” Warner responded. Id. The Governor restored Warner’s voting rights. Id. But Plaintiffs identify five former felons who, at other points, were questioned about illegal ballots cast and then rejected on that basis. ECF No. 29, at ¶ 63. It is not lost on this Court that four of the five rejected applicants are African-American.14
It is of no consequence to this Court that “Plaintiffs have not pled any claim or advanced any argument that Defendants have ever actually engaged in such invidious discrimination.” ECF No. 137, at 12. It is exactly that “Board members could engage in [unconstitutional, viewpoint-based] discrimination,” id., that is so troublesome. See Forsyth Cty., 505 U.S. at 133 n.10.
The Governor has, by rule, “unfettered discretion to deny clemency at any time, for any reason.” Fla. R. Exec. Clemency 4 (emphasis added). This language indicates—in the clearest terms English allows—that nothing prevents this one official from abusing broad discretion. What’s more, Plaintiffs offer more than enough examples for this Court to infer that such discrimination is not some cockamamie idea Plaintiffs cooked up.
The Defendants claim that individualized review is a laudable feature of the vote-restoration scheme. See, e.g., ECF Nos. 103, at 27 and 141, at 10.
14 The Supreme Court, among other august institutions, has observed the strong correlation between race and voting. E.g., Cooper v. Harris, 137 S.Ct. 1455, 1473 n.7 (2017) (explaining that “the sorting of voters on the grounds of their race remains suspect even if race is meant to function as a proxy for other (including political) characteristics.”).
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Individualized review would certainly be less restrictive than unfettered discretion if, at the end of the day, such review meant anything. But the final decision-maker is the Clemency Board, and the Governor has de facto veto authority over anyone’s restoration. All the component parts of the voterestoration process that Defendants wave like shiny objects to distract from potential viewpoint discrimination—the investigations, case analyses, and hearings—mean nothing if the Governor alone has final authority to restore Plaintiffs’ rights. Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 582 (1972) (“When a violation of First Amendment rights is alleged, the reasons for dismissal . . . must be examined to see if the reasons given are only a cloak for activity or attitudes protected by the Constitution.”).
The Defendants’ most compelling argument to support the voterestoration scheme is its classification as a form of executive clemency. This placement, Defendants argue, more or less immunizes the scheme from judicial review. ECF Nos. 103, at 14–16 and 141, at 9. It is, after all, well-settled that executive clemency decisions—including pardons—“are rarely, if ever, appropriate subjects for judicial review.” Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 275 (1998) (quoting Conn. Bd. of Pardons v. Dumschat, 452 U.S. 458, 464 (1985)). Here, however, this Court is not examining any specific decision of Florida’s Clemency Board, but rather its structure and unfettered discretion in the re-enfranchisement context.
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Even so, executive clemency is not immune from judicial review if it violates the Constitution. More than a century ago, the Supreme Court invalidated a pardon that President Wilson issued. Burdick v. United States, 236 U.S. 79, 95 (1915). The Court observed that while the Constitution provides the President a broad pardon power, individuals also have rights under the Fifth Amendment that cannot be violated. Id. at 93–94. A court’s role should be “to preserve both [constitutional provisions],—to leave to each its proper place.” Id. More recently, Chief Justice Burger echoed this reasoning, writing that executive officials may impose conditions on clemency decisions so long as “any condition . . . does not otherwise offend the Constitution.” Schick v. Reed, 419 U.S. 256, 266 (1974). By extension, the clemency decision itself— the object of any condition—must abide by the Constitution.
Justice O’Connor has warned that executive clemency powers are not unlimited. “[A]lthough it is true that ‘pardon and commutation decisions have not traditionally been the business of courts,’ . . . some minimal procedural safeguards apply to clemency proceedings. Judicial intervention might, for example, be warranted in the face of a scheme whereby a state official flipped a coin to determine whether to grant clemency, or in a case where the State arbitrarily denied a prisoner any access to its clemency process.” Woodard, 523 U.S. at 289 (quoting Dumschat, 452 U.S. at 464) (O’Connor, J., concurring)
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(emphasis in original). Clemency decisions perhaps driven by unconstitutional factors—race, religion, gender, or viewpoint—are worse than flipping coins.
Executive clemency by its mere existence cannot serve as a legitimate, let alone compelling, state interest. No serious person would argue that an act of executive clemency that, for example, is motivated by race cannot run afoul of the Constitution simply because it is an act of executive clemency. This Court recognizes the novelty of a challenge to an executive clemency scheme. But “it is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). And so, if a court finds unconstitutionality in an executive clemency scheme, its role is to strike the acts permitting the constitutional violation—not to declare its hands tied.
The unfettered discretion that the Clemency Board possesses over a former felon’s re-enfranchisement violates the First Amendment. Accordingly, Plaintiffs’ motion for summary judgment on Count One is GRANTED and Defendants’ motion as it relates to Count One is DENIED.
D In Count Three,15 Plaintiffs argue that the Board’s lack of clear time limits in processing and deciding clemency applications violates the First
15 This Court addresses Plaintiffs’ Count Two in Section III, infra at 32–37.
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Amendment. ECF No. 29, at ¶¶ 102–12. Specifically, the absence of time limits “create[s] the risk of arbitrary delays and arbitrary continued disenfranchisement.” Id. at ¶ 109. Defendants contend that the lack of time constraints “rationally advance[s] the State’s valid interest ‘in limiting the franchise to responsible voters.’” ECF No. 103, at 20 (quoting Shepherd, 575 F.2d at 1115). Determining who is a responsible voter cannot occur “without the passage of time.” ECF No. 103, at 20.
No one disputes that government investigations and decision-making require some time. The concern is whether the absence of any time constraints, coupled with the “unfettered discretion” the Governor has “to deny clemency at any time, for any reason,” can mask unconstitutional viewpoint discrimination. Fla. R. Exec. Clemency 4. Kicking the can down the road to get a better view of the applicant’s remorse, lifestyle, or even to assuage a Board member’s comfort level can disguise unconstitutional motives.
“A scheme that fails to set reasonable time limits on the decisionmaker creates the risk of indefinitely suppressing permissible speech.” FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 227 (1990). This potential suppression includes the First Amendment right to free association and expression. Laws, regulations, and rules that “‘make[] the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official—as by requiring a permit or license which may be granted or withheld
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in the discretion of such official—is an unconstitutional censorship . . . upon the enjoyment of those freedoms.’” Shuttlesworth v. City of Birmingham, 394 U.S. 147, 151 (1969) (quoting Staub v. City of Baxley, 355 U.S. 313, 322 (1958)). An official’s “delay compels the speaker’s silence.” Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S. 781, 802 (1988).16
Here, Plaintiffs’ protected expressive and associational activities are at risk of viewpoint discrimination because the Board may defer restoration of rights for years—or forever. Defendants cannot—whether arbitrarily or motivated by political, racial, or religious bias—kick the can down the road for so long that they violate former felons’ rights to free association and free expression without offending the Constitution.
Indefinite can-kicking is not some Floridian fairytale like a line-less Space Mountain. The Board regularly invokes some unknown future date as the appropriate time to revisit a restoration denial. This date must be no earlier than two years from the effective denial but is nonetheless unspecified
16 The Eleventh Circuit has struck down multiple schemes as violations of the First Amendment because they lacked time constraints or contained toothless time limitations. See United States v. Frandsen, 212 F.3d 1231, 1240 (11th Cir. 2000) (holding that a regulation to issue permits “without unreasonable delay” violates the First Amendment “because it fails adequately to confine the time within which the decision maker must act”); Lady J. Lingerie, Inc. v. City of Jacksonville, 176 F.3d 1358, 1363 (11th Cir. 1999) (invaliding an ordinance that conferred zoning board “discretion to delay a decision indefinitely or to covertly deny applications for contentsensitive reasons”); Redner v. Dean, 29 F.3d 1495, 1500–01 (11th Cir. 1994) (finding a 45-day time period for official to grant or deny a license illusory because ordinance’s language created “risk that expressive activity will be suppressed for indefinite time periods”).
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at the time of denial. Fla. R. Exec. Clemency 14. Plaintiffs identify multiple instances when Governor Bush required “more time” before rights are restored. ECF No. 102, at 39 (listing Board members’ statements). In recent years, Governor Scott has also required more time before reapplication, from four years to 11, and, in one particularly punitive example, 50 years for a 54 yearold man. Id. at 39–41 (listing Board members’ statements).
Sometimes Board members defer specifying any restoration timeline. See id. (listing Board members’ statements). For example, ten years after her release from incarceration and shortly after her pregnant daughter spoke on her behalf before the Board, Governor Scott informed Plaintiff Virginia Kay Atkins that he did not feel “comfortable” restoring her rights. Id. at 41; ECF No. 101-155. Leon Gillis III explained to the Board that he was released from prison in 1985 but was nonetheless denied restoration on June 6, 2011 based on his illegal voting during the intervening 26 years. He pressed the Governor on when he could reapply: “What else am I supposed to do if I’m doing everything I’m supposed to do . . . how long am I supposed to wait?” The Governor responded, “I could tell you that answer, but today I'm not, I don't feel comfortable doing it.” ECF No. 101-140.
The lack of time limits in processing and deciding vote-restoration applications risks viewpoint discrimination and is therefore unconstitutional.
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Accordingly, Plaintiffs’ motion for summary judgment on Count Three is GRANTED and Defendants’ motion as it relates to Count Three is DENIED.
* * * This Court finds untenable Defendants’ belief that all the cherished First Amendment rights, values, traditions, and protections from state intrusion laid out in Section II.B, supra, are negated by the squid-like tendrils of an asterisk next to former felons’ names—the asterisk of disenfranchisement authorized by three words in the Fourteenth Amendment’s Section Two that, if Defendants had their way, would exclude millions of American men and women from basic First Amendment protection. Only one wedded to the rotten landscape of a hyper-formalist worldview would claim that when a state strips the fundamental right to vote from its incarcerated citizens, it also strips all rights intertwined with voting—the right to associate in a political party, the ultimate expression in a democratic society, and “the fruits of their association, to wit: their political impact.” Touchston, 234 F.3d at 1154 (Tjoflat, J., dissenting). It is legal chicanery to argue an individual convicted of a crime loses her First Amendment associational and expressive interests in the political sphere simply because these rights relate to voting. “Encouraging citizens to vote is a legitimate, indeed essential, state objective; for the constitutional order must be preserved by a strong, participatory democratic process.” Cal. Democratic Party, 530 U.S. at 587
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(Kennedy, J., concurring). By downgrading all former felons into second-class citizens long after serving out their sentences, where escape is only possible through running through a maze of potential viewpoint discrimination, bias, and arbitrary conduct, Florida’s scheme does just the opposite.
III Turning to Count Two, this Court finds that Florida’s vote-restoration scheme permitting unfettered official discretion to restore voting rights also violates the Fourteenth Amendment’s Equal Protection Clause. Plaintiffs largely base their Equal Protection argument on Bush v. Gore. 531 U.S. 98 (2000). The Plaintiffs focus on the admonition that “[t]he right to vote is protected in more than the initial allocation of the franchise. . . . Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person's vote over that of another.” Id. at 104–05. States can disenfranchise felons. Ramirez, 418 U.S. at 54–55. Bush v. Gore, then, is not entirely apposite because felons have not been “granted the right to vote.” 531 U.S. at 104. Rather, it is the process of granting that right that Plaintiffs challenge. And that process cannot be arbitrary. Shepherd, 575 F.2d at 1114 (“Nor can we believe that section 2 would permit a state to make a completely arbitrary distinction between groups of felons with respect to the right to vote.”); see also Harvey, 605 F.3d at 1079 (stating that “a state could
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not choose to re-enfranchise voters of only one particular race” and a state cannot “re-enfranchise only those felons who are more than six-feet tall”).
Defendants assert two cases foreclose Plaintiffs’ equal protection claim. Beacham v. Braterman, 300 F. Supp. 182, 183 (S.D. Fla. 1969) aff’d 396 U.S. 12 (1969), and Shepherd, 575 F.2d 1110. But this Court finds neither case dispositive.
First, in Beacham, the Southern District of Florida rejected a former felon’s challenge to Florida’s discretionary re-enfranchisement scheme under the equal protection clause. Beacham, 300 F. Supp. at 183 (“[T]he discretionary exercise of the pardon power by the executive branch of Florida’s government is being challenged”). A three-judge panel cursorily recited established principles about the broad scope of executive clemency and the separation of powers. Id. at 184. It declined to evaluate the facts or record present in Beacham’s challenge to Florida’s discretionary scheme. Id. (“The restoration of civil rights is . . . an act of executive clemency not subject to judicial control.”). The panel ultimately explained that executive pardon power is “an act of grace” that “should not be subject to judicial intervention.” Id.
The Supreme Court summarily affirmed. 396 U.S. 12. A “summary affirmance is an affirmance of the judgment only, [so] the rationale of the affirmance may not be gleaned solely from the opinion below.” Mandel v. Bradley, 432 U.S. 173, 176 (1977). “Summary actions . . . should not be
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understood as breaking new ground but as applying principles established by prior decisions to the particular facts involved.” Id. Beacham’s summary affirmance in 1969 did not break any new ground but applied those established principles deferring to executive clemency.
Unlike a fine wine, this summary affirmance has not aged well. More recently, Justice O’Connor, among others, has observed that executive clemency cannot operate outside the bounds of the Constitution. Woodard, 523 U.S. at 289; see also supra at 25–27. Beacham’s statement that once Florida has “conferred unlimited pardon power upon the executive branch of their government, the exercise of that power should not be subject to judicial intervention” carries no precedential value because it stands for the flawed presumption that an unconstitutional executive clemency structure is immune from judicial review. Beacham, 300 F. Supp. at 184 (emphasis added).
Second, Defendants correctly note that “section 2 of the fourteenth amendment blunts the full force of section 1’s equal protection clause with respect to the voting rights of felons.” Shepherd, 575 F.2d at 1114. States have “a realm of discretion in the . . . reenfranchisement of felons which the states do not possess with respect to limiting the franchise of other citizens.” Id. But a re-enfranchisement scheme must “bear a rational relationship to the achieving of a legitimate state interest.” Id. at 1115. Defendants rely on
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Shepherd’s language to assert that Florida has an interest “in limiting the franchise to responsible voters.” Id.
These cases do not save Florida’s unconstitutional re-enfranchisement scheme. Beacham and Shepherd stand for different propositions. The former cautions courts to steer clear of executive clemency structures because they enable “act[s] of grace” that courts historically have avoided. Beacham, 300 F. Supp. at 184. The latter holds that states only have a “realm of discretion” in vote-restoration schemes. Shepherd, 575 F.2d at 1114 (emphasis added). But no realm is without boundary.
This Court adheres to the boundaries the Founding Fathers placed in the United States Constitution—not to ethereal concepts like “act[s] of grace.” Beacham, 300 F. Supp. at 184. One firm boundary is the prohibition on states to deny citizens “equal protection of the laws.” U.S. CONST. amend. XIV § 1.
This Court has already explained that executive clemency schemes are not immune from federal court review simply because they are executive clemency schemes.17 The Eleventh Circuit, as Defendants point out, has relied on Justice O’Connor’s reasoning in Woodard to find that “[i]n order for a claim of alleged violations of . . . equal protection in a clemency proceeding to succeed, the violation must be grave, such as where ‘a state official flipped a coin to
17 See supra at 25–27.
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determine whether to grant clemency, or in a case where the State arbitrarily denied a prisoner any access to its clemency process.’” Banks v. Sec’y, Fla. Dep’t of Corr., 592 F. App’x 771, 773 (11th Cir. 2014) (quoting Woodard, 523 U.S. at 289 (O’Connor, J., concurring)). The violation in this case—the substantial risk of arbitrary and discriminatory vote-restoration based on an applicant’s identity and perceived voting preferences from partisan government officials— is worse than a coin flip.
Moreover, Shepherd binds this Court to excise schemes permitting “a state to make a completely arbitrary distinction between groups of felons with respect to the right to vote.” 575 F.2d at 1114; see also Hunter, 471 U.S. at 233 (“[W]e are confident that § 2 [of the Fourteenth Amendment] was not designed to permit the purposeful racial discrimination . . . which otherwise violates § 1 of the Fourteenth Amendment.”). Even though the Constitution authorizes states to disenfranchise felons, “these granted powers are always subject to the limitation that they may not be exercised in a way that violates other specific provisions of the Constitution.” Rhodes, 393 U.S. at 29.
States can have a legitimate state interest in limiting the franchise to “responsible voters.” Shepherd, 575 F.2d at 1115. Florida does this by disenfranchising felons during the entirety of their sentences and then requiring an additional waiting period of five or seven years before these citizens can seek restoration. What is not permissible is a scheme unmoored
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from any constraints, guidelines, or binding procedures that permit Florida officials to make “completely arbitrary distinction[s] between groups of felons”—or worse. Id. at 1114. Partisan officials’ unfettered discretion cannot cull “responsible voters” to include only those voters that might benefit their political party. Such a scheme would, at best, be “arbitrary and disparate.” Bush v. Gore, 531 U.S. at 104. At worst, the scheme would be discriminatory.
In short, Florida’s scheme violates the Fourteenth Amendment. Plaintiffs’ motion for summary judgment as to Count Two is GRANTED. Defendants’ motion for summary judgment as to Count Two is DENIED.
IV In Count Four, Plaintiffs challenge the five and seven-year waiting periods before felons can apply for re-enfranchisement. ECF No. 29, at ¶¶ 113– 20. Plaintiffs base their argument on the Anderson-Burdick balancing test that courts apply when examining state election regulations. This Court finds these waiting periods are reasonable restrictions under the Constitution. When a regulation burdens the right to vote “the regulation must be ‘narrowly drawn to advance a state interest of compelling importance.’” Burdick, 504 U.S. at 434 (quoting Norman, 502 U.S. at 289). On the other hand, if state election regulations “impose[] only ‘reasonable, nondiscriminatory restrictions’ upon the First and Fourteenth Amendment rights of voters, ‘the State’s important regulatory interests are generally
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sufficient to justify’ the restrictions.” Id. (quoting Anderson, 460 U.S. at 788). “Lesser burdens . . . trigger less exacting review, and a State's ‘important regulatory interests’ will usually be enough to justify ‘reasonable, nondiscriminatory restrictions.’” Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997) (internal citations omitted).
Here, the state uniformly applies the waiting periods to all convicted felons. This application poses little risk of viewpoint discrimination—unlike the Board’s unfettered discretion discussed in the preceding sections. Plaintiffs set forth no facts showing that these waiting periods infringe on their First and Fourteenth Amendment rights.
But this Court is concerned about the potential for the Board to pick and choose when to apply these waiting periods. Constitutional problems can arise if the Board bypasses these Rules in a way that violates other constitutional provisions—because of race, religion, gender, or viewpoint, for instance.
Plaintiffs identify one former felon who received re-enfranchisement without a hearing even though the Rules appeared to require a hearing. ECF No. 29, at ¶ 67. Though this felon waited more than the requisite time before applying for restoration, this Court would be remiss if it did not emphasize that rules are rules. Especially when the Board writes them.
The five and seven-year waiting periods do not violate the First and Fourteenth Amendments. Accordingly, Plaintiffs’ motion for summary
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judgment on Count Four is DENIED and Defendants’ motion as it relates to Count Four is GRANTED.
V Florida’s vote-restoration scheme providing government officials’ with unfettered discretion and no meaningful time restraints on the exercise of that discretion violates the First and Fourteenth Amendments. Plaintiffs would also have this Court strike Florida’s disenfranchisement statutes as unconstitutional. ECF No. 102, at 43. This Court cannot do so because states have an “affirmative sanction” in the Constitution to disenfranchise felons. Ramirez, 418 U.S. at 54. It is the Board’s process to restore voting rights that this Court finds unconstitutional.
VI Having determined that Florida’s vote-restoration scheme is unconstitutional, this Court must determine the appropriate relief. This Court could simply issue a judgment for declaratory relief. As for injunctive relief, this Court cannot issue an order that is tantamount to saying “act right.” See e.g., Burton v. City of Belle Glade, 178 F.3d 1175, 1201 (11th Cir. 1999) (stating that “[a] court is incapable of enforcing so broad and vague an injunction” when it amounts to instructing a party to obey the law); see also Fed. R. Civ. P. 65(d) (describing how injunctions must state the reasons for its issuance, its specific
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terms, and a reasonably detailed description of the act(s) restrained or required).
The parties have so far not adequately briefed this Court on remedies. Accordingly, the parties must submit additional briefing as to the contours of injunctive relief, if any, in light of this order by Monday, February, 12, 2018.18 This Court recognizes that Defendants will likely object to the substance of this order and additional remedies-related briefing will not constitute a waiver of any objections.
This Court does not lightly impose tight timelines on parties. But unique circumstances are at play in this challenge. The vote-restoration process is constitutionally infirm, but in so finding, this Court has effectively prevented otherwise eligible felons from seeking restoration under Florida’s unconstitutional scheme.
Such a course of action runs counter to Florida’s Constitution. The state constitution authorizes that the Governor “may . . . restore civil rights.” FLA CONST. art. IV § 8(a) (emphasis added). The Florida Constitution does not start with the presumption that the Governor “may not” restore the right, which this order effectively (though temporarily) does. Rather, the Governor’s power is permissive. See Fla. Bar v. Trazenfeld, 833 So.2d 734, 738 (Fla. 2002) (“The
18 Plaintiffs shall also submit proposed language for the declaratory judgment in light of this order.
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word ‘may’ when given its ordinary meaning denotes a permissive term rather than the mandatory connotation of the word ‘shall.’”). Moreover, Florida’s Constitution also expressly bars felons from voting “until restoration of civil rights.” FLA. CONST. art. VI § 4(a) (emphasis added). The Florida Constitution presumes a restoration process exists. And the state has advanced that express presumption by having in place a restoration scheme for decades. This Court will not prevent—even briefly—the express preferences of Florida’s Constitution without giving the parties an opportunity to address the appropriate remedy.
VII This Court is not blind to nationwide trends in which the spigot to access the United States’ most “precious” and “fundamental” right, the right to vote, depends on who controls the levers of power. Harper, 383 U.S. at 670. That spigot is turned on or off depending on whether politicians perceive they will benefit from the expansion or contraction of the electorate. In Florida, more than 154,000 citizens had their voting rights restored during the last gubernatorial administration’s four years. Since 2011, a period of seven years, that figure has plummeted—less than 3,000 people have received restoration. The context of these numbers is not lost on this Court. More than one-tenth of Florida’s voting population—nearly 1.7 million as of 2016—cannot vote
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because they have been decimated from the body politic.19 More than one in five of Florida’s African American voting-age population cannot vote.20
If any one of these citizens wishes to earn back their fundamental right
to vote, they must plod through a gauntlet of constitutionally infirm hurdles.
No more. When the risk of state-sanctioned viewpoint discrimination skulks
near the franchise, it is the province and duty of this Court to excise such
potential bias from infecting the clemency process.
Accordingly,
IT IS ORDERED:
1. Plaintiffs’ motion for summary judgment as to Counts One, Two, and
Three is GRANTED. Defendants’ motion for summary judgment as
to Counts One, Two, and Three is DENIED. Plaintiffs’ motion for
summary judgment as to Count Four is DENIED. Defendants’
motion for summary judgment as to Count Four is GRANTED.
19 Decimation is a more than apt word. The word refers to the rather outmoded practice of “select[ing] by lot and put[ting] to death one in every ten of (a group of soldiers guilty of mutiny or other crime): a practice in the ancient Roman army, sometimes followed in later times.” Decimation, OXFORD ENGLISH DICTIONARY, Vol. 1, 95 (compact ed. 1971). More than one in ten Florida voters are put to civil death through disenfranchisement—with little hope of resuscitation under the unfettered discretion vote-restoration scheme. See The Sentencing Project, 6 Million Lost Voters: State-Level Estimates of Felony Disenfranchisement, 2016, at 15 (October 2016), available at https://www.sentencingproject.org/wp-content/uploads/2016/10/6-Million-LostVoters.pdf. 20 Data gathered from The Sentencing Project, 6 Million Lost Voters: State-Level Estimates of Felony Disenfranchisement, 2016, at 15–16 (October 2016), available at https://www.sentencingproject.org/wp-content/uploads/2016/10/6-Million-Lost-Voters.pdf.
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2. Parties shall file briefings related to remedies on or before Monday, February 12, 2018.
3. This Court does not direct entry of final judgment and will not do so until after it has considered the additional briefings as to remedies.
SO ORDERED on February 1, 2018.

s/Mark E. Walker

____

United States District Judge

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 Case 4:17-cv-00128-MW-CAS Document 160 Filed 03/27/18 Page 1 of 22

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION

JAMES MICHAEL HAND, et al.,

Plaintiffs,

v.

Case No. 4:17cv128-MW/CAS

RICK SCOTT, in his official capacity as Governor of Florida and member of the State of Florida’s Executive Clemency Board, et al.,

Defendants. __________________________/

ORDER DIRECTING ENTRY OF JUDGMENT This Court is not the Vote-Restoration Czar. It does not pick and choose

who may receive the right to vote and who may not. Nor does it write the rules

and regulations for the Executive Clemency Board. Instead, this Court

possesses the well-known and unsurprising “province and duty . . . to say what

the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). And this

Court possesses the unremarkable discretion to find a means for the Board to

comply with the law.

In its Order on Cross-Motions for Summary Judgment, this Court

applied longstanding precedent from the Supreme Court and the Eleventh

Circuit that invalidated unfettered-discretion schemes to a novel context;

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namely, that of felon re-enfranchisement. See generally ECF No. 144. And, as it has done in the past, this Court invited the parties to recommend appropriate remedial action. Defendants essentially repackage the current scheme into proposed remedies permitting the Governor and Board to do, as the Governor described, “whatever we want” in denying voting rights to hundreds of thousands of their constituents. ECF No. 144, at 2 (citation omitted). This will not do. And Defendants’ proposed remedy to abandon the whole vote-restoration scheme does not pass constitutional muster.
If binding precedent spanning decades is to guide this Court—as it must—then an injunction must ensue to prevent further infringement. Florida’s vote-restoration scheme can no longer violate Plaintiffs’ fundamental First Amendment rights. Accordingly, as even Defendants acknowledge, “this Court may direct the Board ‘to find a means of bringing the [State’s] scheme into compliance with federal law.’” ECF No. 149, at 14 (quoting Strahan v. Coxe, 127 F.3d 155, 170 (1st Cir. 1997)).
I Plaintiffs would have this Court restore the right to vote to any former felon who has completed her whole sentence and a uniformly imposed five- or seven-year waiting period. ECF No. 147, at 2–3. But such relief is beyond the scope of this Court’s authority. The people of Florida—either through ballot initiatives or through their legislative acts—may cure any perceived policy
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weaknesses with Florida’s restoration scheme.1 This Court’s task today is to remedy Florida’s current scheme by cabining government officials’ unfettered discretion.
II While Defendants oppose any relief and claim the current scheme is all sunshine and rainbows, they agree with Plaintiffs that this Court may provide declaratory relief.2 See, e.g., ECF No. 157, Ex. A (outlining Plaintiffs’ proposed declaratory relief), and ECF No. 158, at 15 (“Here, a declaratory judgment would provide an adequate remedy for the specific concerns identified by the Court.”). And this Court grants declaratory relief consistent with its prior order.
III The parties disagree on the propriety and extent of injunctive relief, which is the primary purpose of this Order. This Court finds injunctive relief is appropriate to ensure that Florida’s vote-restoration scheme is no longer based on unfettered discretion.
1 A state constitutional amendment proposing changes to Florida’s felony disenfranchisement and re-enfranchisement process will appear on the ballot in November 2018. 2 “The world ain’t all sunshine and rainbows.” ROCKY BALBOA (Metro-Goldwyn-Meyer, et al. 2006). The same goes for Florida’s current vote-restoration scheme. See generally ECF No. 144.
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A To succeed on a permanent injunction, Plaintiffs “must satisfy a fourfactor test.” Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 156 (2010) (internal quotation marks omitted). Plaintiffs must show (1) “irreparable injury”; (2) that “remedies available at law, such as monetary damages, are inadequate to compensate for that injury”; (3) that, “considering the balance of hardships between the plaintiff[s] and defendant[s], a remedy in equity is warranted”; and (4) that the “public interest would not be disserved by a permanent injunction.” Id. at 156–57 (internal quotation marks omitted). Plaintiffs have satisfied the elements for a permanent injunction. First, Plaintiffs have suffered an irreparable injury.3 Their right to free association and right to free expression were denied under a fatally flawed scheme of unfettered discretion that was contaminated by the risk of viewpoint discrimination. The Board will revisit some of their decisions at some unknown future date—if at all—based on nebulous criteria, such as the Governor’s comfort level. See, e.g., ECF No. 102, at 41. “[I]n 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 a threat of injury sufficient to warrant an injunction.” Miami Herald Publ’g Co. v. City of Hallandale, 734
3 One exception is Plaintiff Yraida Leonides Guanipa, who is not yet eligible for restoration. ECF No. 102, at 11–12. On Plaintiffs’ facial challenge, however, the absence of Ms. Guanipa does not impact the contours of this Court’s remedy or, for that matter, this Court’s Order.
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F.2d 666, 674 n.4 (11th Cir. 1984). Plaintiffs, then, have established “an imminent likelihood” that their First Amendment rights to free association and free expression “will be chilled or prevented altogether.” Siegel v. LePore, 234 F.3d 1163, 1178 (11th Cir. 2000); see also Elrod v. Burns, 427 U.S. 347, 373 (1976) (“The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”).
Second, because Plaintiffs suffered an irreparable harm, remedies at law are inadequate. See Barrett v. Walker Cty. Sch. Dist., 872 F.3d 1209, 1229 (11th Cir. 2017) (citing Deerfield Med. Ctr. v. City of Deerfield Beach, 661 F.2d 328, 338 (5th Cir. Unit B Nov. 1981) (“An injury is ‘irreparable’ only if it cannot be undone through monetary remedies.”)).4
Third, the balance of the hardships favors Plaintiffs. Defendants need only redraft rules that align the vote-restoration scheme within the boundaries of the law by cabining official discretion and providing meaningful time constraints for the Board’s decision-making. Plaintiffs, meanwhile, are deprived of a voice in directly choosing their elected leaders. They are also deprived of associating with the political party, if any, of their choice. Both are essential First Amendment rights, as this Court described in its prior order. ECF No. 144, at 9–17. Balancing the hardships between protecting First
4 Decisions rendered by Unit B of the former Fifth Circuit constitute binding precedent in the Eleventh Circuit. Stein v. Reynolds Secs., Inc., 667 F.2d 33, 34 (11th Cir. 1982).
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Amendment rights and having a government board that meets four times a year redraft their rules to conform with the United States Constitution weighs unsurprisingly in favor of the former.
Finally, Plaintiffs easily satisfy the fourth factor. “[T]he public interest is always served in promoting First Amendment values.” Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1276 (11th Cir. 2001). There are few greater interests than free association and free expression to choose public officials to lead, to represent all people in their jurisdictions, and to advance policy for the common good. These interests are why Americans launched a revolution against perceived unfettered discretion in the hands of one highranking official, King George III.
B The question turns to the nature and extent of a permanent injunction. “Injunctive relief against a state agency or official must be no broader than necessary to remedy the constitutional violation.” Knop v. Johnson, 977 F.2d 996, 1008 (6th Cir. 1992) (quoting Toussaint v. McCarthy, 801 F.2d 1080, 1086 (9th Cir. 1986)). This Court does not re-enfranchise otherwise eligible citizens. This Court does not operate as a legislature. This Court is not a fifth member of the Board, drafting specific rules and regulations for it, unless it is forced to
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do so.5 “Once a right and a violation have been shown, the scope of a district
court’s equitable powers to remedy past wrongs is broad, for breadth and
flexibility are inherent in equitable remedies.” Swann v. Charlotte-
Mecklenburg Bd. of Educ., 402 U.S. 1, 15 (1971).
While this Court again recognizes the novelty of Plaintiffs’ claims,6 this
Court’s permanent injunction does not surface out of some swamp. Federal
courts have regularly held—including other circuits and the Supreme Court—
that cabining state officials’ discretion so they may not violate First
Amendment rights is an appropriate task for federal courts. See, e.g., City of
Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 757 (1988) (listing a “long
line of precedent” outlining the Supreme Court’s discomfort with government
officials’ unfettered discretion over First Amendment rights); Forsyth Cty. v.
Nationalist Movement, 505 U.S. 123, 133 (1992) (“The First Amendment
prohibits the vesting of such unbridled discretion in a government official.”);
5 This Court recognizes that in other contexts, as Plaintiffs point out, courts have actively participated in crafting specific remedies. See ECF No. 157, at 3–7 (listing redistricting, votingrights, and school-desegregation cases in which courts have crafted specific remedies when a legislature or other government body abandons its court-ordered duties). 6 Plaintiffs challenge an executive clemency scheme that, by rule, has “unfettered discretion” to deny or grant critical First Amendment rights. Fla. R. Exec. Clemency 4. But, as this Court emphasized in its prior order, a scheme’s placement under an executive-clemency structure does not exempt it from constitutional compliance. ECF No. 144, at 25–27 (discussing the limitations of executive clemency in relation to federal constitutional protections); see also Hoffa v. Saxbe, 378 F. Supp. 1221, 1231 (D.D.C. 1974) (“And the [pardon] power is most importantly limited, as are all powers conferred by the Constitution, by the Bill of Rights which expressly reserved to the ‘individual’ certain fundamental rights.”); see also id. at 1233 (observing that the President’s pardon power “does not exist in a vacuum but rather as part of our total constitutional system”).
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Gannett Satellite Info. Network, Inc. v. Berger, 894 F.2d 61, 69 (3d Cir. 1990) (invalidating scheme that “failed to establish any parameters for the exercise of its authority to regulate a broad category of speech”). The incongruence of officials’ unfettered discretion with the First Amendment extends to executiveclemency schemes implicating constitutional rights.
The Eleventh Circuit has previously addressed other unconstitutional unfettered-discretion schemes, which guides this Court on the scope and nature of appropriate injunctive relief. In Sentinel Communications Co. v. Watts, the Eleventh Circuit struck down a scheme that gave a Florida official “standardless, unfettered discretion” in distributing newspaper racks at interstate rest areas. 936 F.2d 1189, 1197 (11th Cir. 1991). “Unaided (or unhindered) by any regulations, guidelines, procedures, ordinances, or standards,” the government official had “no grounds for granting or denying permits” and was “free to make his decisions on any basis that he deem[ed] appropriate.” Id. at 1198. Newspapers seeking to exercise their First Amendment rights were “subject to the completely standardless and unfettered discretion of one bureaucrat working . . . in Tallahassee.” Id. at 1199. To remedy that official’s infinite discretion, the court called for “[s]ome neutral criteria” that would “insure” that the government official’s decision “is not based on the content or viewpoint of the speech being considered.” Id. at 1199–1200 (quoting Lakewood, 486 U.S. at 760).
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Similarly, the Eleventh Circuit determined en banc that an Atlanta government agency’s unfettered discretion over granting or denying permits for newsrack distribution at Hartsfield Atlanta International Airport violated the First Amendment. Atlanta Journal & Constitution v. City of Atlanta, 322 F.3d 1298, 1310–11 (11th Cir. 2003) (en banc). Particularly concerning was the risk that the government official would engage in impermissible viewpoint discrimination under the guise of a neutral business-related reason—a sort of “mask for censorship.” Id. at 1311 n.13. To rectify that risk, “[s]tructural and procedural safeguards can reduce the possibility that an official will use her power to corrupt the protections of the First Amendment.” Id. at 1311. Therefore, the government official “must be constrained in some form in her exercise of discretion” by “clear standards.” Id.; see also id. at 1312 (holding that official discretion “must be restrained through procedures or instructions designed to reduce or eliminate the possibility of viewpoint discrimination”).
So too here. There is no doubt a risk that the Board’s officials may engage in viewpoint discrimination through seemingly neutral rationales—such as traffic citations or an applicant’s perceived lack of remorse—that serve as impermissible “mask[s] for censorship.” Id. at 1311 n.13. This sort of unfettered discretion cannot exist under the Federal Constitution—or any wellfunctioning democracy. Therefore, the Board must promulgate specific standards and neutral criteria to direct its decision-making. Sentinel
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Commc’ns, 936 F.2d at 1199 n.9 (“[T]he doctrine forbidding unbridled discretion requires reasonable and definite standards.”); see also id. at 1207 (explaining that Florida “simply cannot continue to take an utterly discretionary, ‘seat of the pants’ regulatory approach towards” First Amendment activity and that written guidelines with “specific criteria” should guide government discretion).
These standards and criteria cannot be merely advisory, a Potemkin village for anyone closely reviewing the scheme. See ECF No. 144, at 4–5 (outlining the existing non-binding criteria the Board may or may not consider). “Implicit limits on a licensing official’s discretion must be made explicit, ‘by textual incorporation, binding judicial or administrative construction, or well-established practice.’” Sentinel Commc’ns, 936 F.2d at 1199 n.9 (quoting Lakewood, 486 U.S. at 770). In other words, the Board cannot rely on whims, passing emotions, or perceptions. Establishing safeguards against viewpoint discrimination should be the Board’s paramount goal following this Order. In the future, concrete criteria—not “feel[ing] comfortable,” ECF No. 144, at 30—must direct the Board. And its rules must spell these criteria out with precision. See Atlanta Journal, 322 F.3d at 1312 (retaining portion of district court’s permanent injunction “that prohibited the administration of any plan that did not explicitly constrain official discretion”).
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Defendants balk at injunctive relief partly because of a “presumption of regularity.” ECF No. 149, at 8–9. This argument boils down to “trust us—we got this.” But “this is the very presumption that the doctrine forbidding unbridled discretion disallows.” Lakewood, 486 U.S. at 770. The Eleventh Circuit is again instructive. “[I]t is not enough to presume that officials will act in good faith and adhere to standards absent from a statute or scheme’s face.” Sentinel Commc’ns, 936 F.2d at 1199 n.9. While Defendants invoke the presumption of regularity to avoid a permanent injunction, such a remedy is necessary to cabin Defendants’ unfettered discretion—and the broad discretion they claim to have in crafting a remedy. And, as noted before, Defendants concede this point. “[T]his Court may direct the Board ‘to find a means of bringing the [State’s] scheme into compliance with federal law.’” ECF No. 149, at 14 (quoting Strahan, 127 F.3d at 170).
Generally, when a court strikes down unconstitutional grants of unfettered government discretion, it does so because “the problem is not potential abuses but the very existence of broad, censorial power.” Int’l Soc’y for Krishna Consciousness v. Eaves, 601 F.2d 809, 823 (5th Cir. 1979).7 Here, there is little doubt that the Board possesses broad, censorial power to prohibit hundreds of thousands of otherwise eligible voters from freely associating with
7 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.
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political parties or freely expressing themselves through voting. And there are problems of potential abuse—especially when members of the Board, who are elected on a statewide basis and who may be running for re-election or another office, have a personal stake in shaping the electorate to their perceived benefit. “Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people.” Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 339 (2010). Florida’s current scheme inverts that important, democratic mechanism. It cannot do so anymore.
In short, the Board is left to the “task of devising a Constitutionally sound program,” Lewis v. Casey, 518 U.S. 343, 362 (1996) (internal quotation marks omitted), but it must do so within constraints that the Eleventh Circuit has identified; namely, specific, neutral criteria that excise the risk—and, of course, the actual practice of—any impermissible discrimination, such as race, gender, religion, or viewpoint. While this Court does not order any particular vote-restoration scheme nor any specific criteria the Board must consider, Florida’s corrected scheme cannot be byzantine or burdensome.
C The Board’s new criteria would be toothless without meaningful time constraints. In its prior order, this Court found the fuzzy time periods that the Board has invoked in reviewing or re-reviewing former felons’ applications unconstitutional. ECF No. 144, at 27–31. Like this Court’s conclusions about
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the Board’s lack of criteria to cabin its decision-making, this Court’s conclusions over the absence of meaningful time constraints do not arrive out of thin air. The Supreme Court and the Eleventh Circuit have repeatedly struck down schemes that lack meaningful time constraints as contrary to the First Amendment. See, e.g., id. at 28–29 (citing Supreme Court precedent), and id. at 29 n.16 (citing Eleventh Circuit precedent).
Binding precedent again instructs the scope and nature of remedies. Recently, the Eleventh Circuit upheld a district court’s permanent injunction over a school board’s policy that essentially failed to constrain a high-ranking official from granting or denying speaking slots to individuals at school-board meetings. Barrett, 872 F.3d at 1229. “[U]nbridled discretion can . . . exist when a permitting official has no time limit within which she must make a decision on a permit application.” Id. at 1222. The challenged policy “pose[d] enough of a risk that speech w[ould] be chilled or effectively censored on the basis of content or viewpoint” because one portion of the policy “lack[ed] any time limit with which [the government official] must comply.” Id. at 1229.
The same risks exist here. As this Court emphasized in its prior order, the Board “cannot . . . kick the can down the road for so long that they violate former felons’ rights to free association and free expression.” ECF No. 144, at 29. It is no excuse that the Board lacks resources to abide by the Federal Constitution’s requirements. If the Board pursues policies that sever hundreds
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of thousands of Floridians from the franchise and, at the appropriate time, hundreds of thousands of Floridians want their voting rights back, the Board must shoulder the burden of its policies’ consequences. They cannot continue to shrug off restoration applications indefinitely.
Accordingly, the Board must promulgate time constraints that are meaningful, specific, and expeditious. While this Court leaves the specifics of timing to Defendants to outline and justify, the time limits cannot cloak impermissible clock-control. See Barrett, 872 F.3d at 1214 (“Control the clock and control the game.”). Absent extraordinary circumstances, this Court cannot conceive of any reason why an applicant at any point must wait more than one election cycle after she becomes eligible to apply for restoration.
D Defendants cannot end the vote-restoration scheme entirely. See ECF No. 149, at 11 (suggesting the Board could adopt a policy “declining to restore any convicted felon’s ability to vote, either permanently or as an interim measure . . .”). This Court concluded that Florida’s arbitrary slow drip of voterestorations violates the U.S. Constitution—but that does not mean Defendants can shut off the spigot of voting rights with a wrench, yank it from the plumbing, and throw the whole apparatus into the Gulf of Mexico. In its prior order, this Court reasoned that a state cannot re-enfranchise its citizens arbitrarily because it cannot disenfranchise citizens arbitrarily. See ECF No.
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144, at 6–7 (citing Shepherd v. Trevino, 575 F.2d 1110, 1114 (5th Cir. 1978), and Owens v. Barnes, 711 F.2d 25, 27 (3d Cir. 1983)); see also id. at 7 n.4 (citing Williams v. Taylor, 677 F.2d 510 (5th Cir. 1982)). Removing any scheme for vote-restoration is the ultimate arbitrary act. Having lost their ability to reenfranchise citizens at a snail’s pace guided by absolutely nothing, Defendants’ threats to arbitrarily and completely end the vote-restoration scheme is tantamount to picking up one’s marbles and going home.
It is true that “Florida’s discretion to deny the vote to convicted felons is fixed by the text” of Section Two of the Fourteenth Amendment. Johnson v. Bush, 405 F.3d 1214, 1228 (11th Cir. 2005) (emphasis added). States have “a realm of discretion in the . . . reenfranchisement of felons which the states do not possess with respect to limiting the franchise of other citizens.” Shepherd, 575 F.2d at 1114 (emphasis added). In exercising that discretion, Florida pursues an interest “in limiting the franchise to responsible voters.” Id. at 1115.
In so limiting the franchise, Florida has the ability under existing case law to exercise some—but not unlimited—discretion in re-enfranchisement of former felons. Id. at 1114. Florida exercises this discretion by defining what a felony is. It culls from the body politic hundreds of thousands of men and women who have been convicted of those felonies. And it strips voting rights from individuals serving their sentences, their probations, their paroles, and
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from those men and women patiently waiting the duration of a uniform fiveor seven-year period.
But, as this Court previously stated, “no realm is without boundary.” ECF No. 144, at 35. That conclusion unremarkably presupposed the existence of a realm for the state to exercise discretion. Removing all discretion by jettisoning the vote-restoration scheme in its entirety is easily outside the “realm of discretion” because such a plan tosses out the “realm.” In short, Shepherd presumes the existence of a realm for state officials to exercise limited discretion that the absence of a vote-restoration scheme would contravene. Once Florida provides for a realm of discretion through a voterestoration scheme, it cannot simply discard that scheme after a federal court finds constitutional violations with its current rules.
Moreover, the Supreme Court’s “prior decisions have voiced particular concern with laws that foreclose an entire medium of expression.” City of Ladue v. Gilleo, 512 U.S. 43, 55 (1994); see also id. (listing Supreme Court precedent invalidating total bans on First Amendment activity). For example, a Ladue, Missouri ordinance that was a “virtually complete ban” on all residential signs “almost completely foreclosed a venerable means of communication.” Id. at 49, 54. The Court observed that bans on whole swaths of First Amendment rights “may be completely free of content or viewpoint discrimination” but “the danger [such prohibitions] pose to the freedom of speech is readily apparent—by
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eliminating a common means of speaking, such measures can suppress too much speech.” Id. at 55. Similarly, the Supreme Court narrowly construed a municipality’s law prohibiting some picketing but acknowledged that problems would arise if the law banned all picketing. Frisby v. Schultz, 487 U.S. 474, 486 (1988) (“The type of focused picketing prohibited by the [municipality’s] ordinance is fundamentally different from more generally directed means of communication that may not be completely banned in residential areas.”).
Analogous concerns would arise if the Board abandoned its voterestoration scheme entirely. Once a federal court acknowledges former felons’ First Amendment rights to association and expression upon which a restoration scheme of unfettered discretion unconstitutionally infringes, the Board cannot issue a blanket ban on all activity without some pathway out of the prohibition. And while a “particularly punitive state might even disenfranchise convicted felons permanently[,] . . . once a state provides for restoration, its process cannot offend the Constitution.” ECF No. 144, at 9.8 Shutting off the slow drip of vote-restorations in this context would offend the Constitution.
8 Under the Supreme Court’s interpretation of the Fourteenth Amendment’s Section Two, states have an “affirmative sanction” in disenfranchising men and women convicted of felonies. Richardson v. Ramirez, 418 U.S. 24, 54 (1974). This Court is troubled by some courts’ “fetishistic” reading of this precedent that strips the constitutional authorization of its context and relies solely on a textual reading. See Jessie Allen, Documentary Disenfranchisement, 86 TUL. L. REV. 389, 448–59 (2011).
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That Florida cannot jettison its whole vote-restoration scheme is also supported as a matter of state law—though, of course, in so analyzing this Court treads carefully through longstanding principles of federalism. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 106 (1984) (“[I]t is difficult to think of a greater intrusion on state sovereignty than when a federal court instructs state officials on how to conform their conduct to state law.”).
Defendants should heed the existence of a restoration process enshrined in Florida’s constitution and in state laws. “No person convicted of a felony . . . shall be qualified to vote or hold office until restoration of civil rights.” FLA. CONST. art. VI, § 4(a) (emphasis added). “[T]he civil rights of the person convicted shall be suspended in Florida until such rights are restored . . .” FLA. STAT. ANN. § 944.292(1) (emphasis added). Defendants acknowledge as much. ECF No. 149, at 7 (“[A] convicted felon loses the right to vote until civil rights are restored.”) (emphasis added). They helpfully point out that Florida has coupled disenfranchisement with a form of vote-restoration for the past 150 years. Id. at 18 (explaining how the 1868, 1885, and 1968 state constitutions contained restoration language).
References in Florida’s constitution and state laws to restoration are not window dressing. It is a “cardinal rule of statutory interpretation that no provision should be construed to be entirely redundant.” Kungys v. United States, 485 U.S. 759, 778 (1988) (Scalia, J.) (plurality opinion); see also
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Vreeland v. Ferrer, 71 So. 3d 70, 80 (Fla. 2011) (“[I]t is the duty of a court ‘to give effect, if possible, to every clause and word of a statute.’”) (quoting United States v. Menasche, 348 U.S. 528, 538–39 (1955)). It is clear, then, that Florida law assumes a vote-restoration scheme, at minimum, exists.
This Court does not enter an injunction pursuant to Florida law. Pennhurst, 465 U.S. at 106 (forbidding federal courts from ordering state officials to comply with state law). “Under Pennhurst . . . the determinative question is not the relief ordered, but whether the relief was ordered pursuant to state or federal law.” Brown v. Ga. Dep’t of Revenue, 881 F.2d 1018, 1023 (11th Cir. 1989). A federal court can, however, consider a “state law issue that is preliminary to a federal claim against a state official.” Fleet Bank, Nat’l Ass’n v. Burke, 160 F.3d 883, 891 n.6 (2d Cir. 1998).
This Court reads the cited provisions of the Florida Constitution and state law as preliminary to Shepherd’s direction that states have a “realm of discretion” in re-enfranchising their citizens. Shepherd, 575 F.2d at 1114. In other words, the cited provisions codify the constitutional requirements that appellate courts have identified; namely, the existence of a state’s realm of discretion in re-enfranchisement. Johnson v. Bush, 405 F.3d at 1228; Shepherd, 575 F.2d at 1114. Abandoning that discretion by ceasing all vote-
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restoration runs afoul of these cases.9 This Court is guided by federal constitutional law in prohibiting the Board from ending all vote-restorations; accordingly, its consideration of relevant state law does not violate Pennhurst.
IV These remedies are prophylactic. They construct guardrails so state officials’ discretion remains on the road of constitutionality. This Court recognizes that “pardon and commutation decisions have not traditionally been the business of courts; as such, they are rarely, if ever, appropriate subjects for judicial review.” Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458, 464 (1981) (emphasis added). At the same time, clear standards “provide the guideposts that check” the government official granting or denying First Amendment rights and prevent “post hoc rationalizations” clouded by “shifting or illegitimate criteria.” Lakewood, 486 U.S. at 758. Simply put, the Board must create some preventative rules, criteria, and standards without any “shifting or illegitimate criteria.” Id. Since clemency decisions are “rarely, if ever, appropriate subjects for judicial review,” Dumschat, 452 U.S. at 464, prophylactic protections must be robust and meaningful.
9 This is not to say that a scheme of automatic re-enfranchisement for certain classes of convicted felons would run afoul of Shepherd’s grant of a “realm of discretion” to the state. Shepherd, 575 F.2d at 1114. It would be the state, after all, that would choose to grant the right to vote to some former felons but not all. Discretion would remain in such a scheme.
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IT IS ORDERED:
1. For the reasons set forth in its prior order, ECF No. 144, dated
February 1, 2018, and this Order, the Clerk shall enter judgment
stating:
a. “FLA. CONST. art. VI, § 4(a), FLA. CONST. art. IV § 8, FLA. STAT. § 97.041(2)(b), FLA. STAT. § 944.292(1), and the Florida Rules of Executive Clemency, violate the First and Fourteenth Amendments of the United States Constitution to the extent these provisions provide the Executive Clemency Board unfettered discretion to grant or deny restoration of voting rights to persons with felony convictions, and violate the First Amendment to the extent these provisions lack any time constraints for processing and making final decisions. This DECLARATORY JUDGMENT applies only to the right to vote, not to any other civil right. It does not apply to any other type of executive clemency in Florida.”
b. “Defendants are PERMANENTLY ENJOINED from enforcing the current unconstitutional vote-restoration scheme. Defendants are also PERMANENTLY ENJOINED from ending all vote-restoration processes. On or before April 26, 2018, Defendants shall promulgate specific and neutral criteria to direct vote-restoration decisions in accordance with this Order. On or before April 26, 2018, Defendants shall also promulgate meaningful, specific, and expeditious time constraints in accordance with this Order. Defendants shall file with this Court its modified rules on or before April 26, 2018.”
2. Nothing in this Order Directing Entry of Judgment granting
declaratory and injunctive relief against Defendants shall be
construed to preclude or limit future modification or elimination of
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the pre-restoration waiting period(s) by any lawful means, such as constitutional amendment, legislation, or Board rulemaking. 3. The Board shall reconsider any applicants who were denied a meaningful hearing during the pendency of this Order’s writing, i.e., between February 1, 2018 and today, under its new rules. 4. This Court shall retain jurisdiction to monitor Defendants’ compliance and to entertain any motion for attorneys’ fees and costs. SO ORDERED on March 27, 2018.

s/Mark E. Walker

____

United States District Judge

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 Case 4:17-cv-00128-MW-CAS Document 178 Filed 04/25/18 Page 1 of 37 Case: 18-11388 Date Filed: 04/25/2018 Page: 1 of 1

David J. Smith Clerk of Court

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
ELBERT PARR TUTTLE COURT OF APPEALS BUILDING 56 Forsyth Street, N.W. Atlanta, Georgia 30303
April 25, 2018

MEMORANDUM TO COUNSEL OR PARTIES

Appeal Number: 18-11388-G Case Style: James Hand, et al v. Rick Scott, et al District Court Docket No: 4:17-cv-00128-MW-CAS

For rules and forms visit www.ca11.uscourts.gov

This Court requires all counsel to file documents electronically using the Electronic Case Files ("ECF") system, unless exempted for good cause.
The enclosed published order has been ENTERED.
Sincerely,
DAVID J. SMITH, Clerk of Court
Reply to: Bryon Robinson, G/bmc Phone #: (404) 335-6185

MOT-2 Notice of Court Action

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[PUBLISH] IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT _________________________ No. 18-11388-G _________________________
JAMES MICHAEL HAND, et al.,
Appellees, versus
RICK SCOTT, in his official capacity as Governor of Florida and member of the State of Florida’s Executive Clemency Board, et al.,
Appellants. __________________________ On Appeal from the United States
District Court for the Northern District of Florida __________________________
Before MARCUS, WILLIAM PRYOR, and MARTIN, Circuit Judges. MARCUS, Circuit Judge:
Appellants Rick Scott, in his official capacity as Governor of the State of Florida, and the other three members of Florida’s Executive Clemency Board (Pam Bondi, Adam H. Putnam, and Jimmy Patronis) (collectively, the “State Executive

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Clemency Board”) have appealed from the district court’s orders entered in favor of appellees James Michael Hand and eight other convicted felons who have completed their sentences and seek to regain their voting rights in Florida. In the underlying lawsuit, the appellees facially challenged, under the Fourteenth Amendment’s Equal Protection Clause and the First Amendment, Florida’s scheme of voter reenfranchisement for convicted felons, claiming that the State Executive Clemency Board exercised “unbridled discretion” to deny voter reenfranchisement in the absence of any articulable standards. The district court granted summary judgment in favor of appellees, entering a declaratory judgment, permanently enjoining the State Executive Clemency Board from “enforcing the current unconstitutional vote-restoration scheme” and “ending all vote-restoration processes,” and commanding the State Executive Clemency Board to “promulgate specific and neutral criteria to direct vote-restoration decisions” along with “meaningful, specific, and expeditious time constraints” on or before April 26, 2018.
Currently before this Court is the State Executive Clemency Board’s time-sensitive Motion for Stay Pending Appeal, seeking provisionally to stay the district court’s injunctions, until this appeal is heard. The parties agree that four factors are relevant to granting a stay: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will
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substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Nken v. Holder, 556 U.S. 418, 426 (2009) (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)). The first two factors are the “most critical.” Id. at 434. We are satisfied that the State Executive Clemency Board has made a sufficient showing under Nken to warrant a stay, and, accordingly, we stay the district court’s entry of injunctive relief until this appeal is resolved by a panel of the Court. The Fourteenth Amendment expressly empowers the states to abridge a convicted felon’s right to vote. U.S. Const. amend. XIV, § 2. Binding precedent holds that the Governor has broad discretion to grant and deny clemency, even when the applicable regime lacks any standards. And although a reenfranchisement scheme could violate equal protection if it had both the purpose and effect of invidious discrimination, appellees have not alleged -- let alone established as undisputed facts -- that Florida’s scheme has a discriminatory purpose or effect. And the First Amendment provides no additional protection of the right to vote.
I. First, the State Executive Clemency Board has shown it will likely succeed on the merits of the Equal Protection claim. The appellees have claimed that Florida’s “standardless” voter reenfranchisement regime facially violates the Equal Protection Clause of the Fourteenth Amendment. They do not say that the defendants actually discriminated against any of them on the basis of race or any other invidious
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grounds. Rather, the heart of their claim is that the State Executive Clemency Board’s unbounded discretion will yield an unacceptable “risk” of unlawful discrimination.
For starters, we are bound to follow Supreme Court precedent in Beacham. Beacham v. Braterman, 300 F. Supp. 182 (S.D. Fla. 1969), aff’d 396 U.S. 12 (1969). The case stands for the proposition that Florida did not violate the Equal Protection or Due Process Clauses of the Fourteenth Amendment in denying a petitioner’s application for pardon and reenfranchisement, even though the Governor and selected cabinet officers did so in the absence of any articulable or detailed standards. Id. at 184. It establishes the broad discretion of the executive to carry out a standardless clemency regime.
In Beacham, a convicted felon in Florida challenged the refusal to grant him a pardon and the concomitant restoration of his civil rights, including the right to register to vote. Id. at 182-83. He claimed that since there were no “established specific standards to be applied to the consideration of petitions for pardon,” the plenary denial of that right violated both the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment. Id. at 183. A three-judge district court panel squarely rejected the claim, holding that state officials may constitutionally exclude from the franchise convicted felons and that Florida’s standardless scheme did not violate the Fourteenth Amendment. The court
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reasoned that the discretionary pardon power, which included within its ambit the restoration of civil rights, “has long been recognized as the peculiar right of the executive branch of government,” and that the exercise of that executive power was free from judicial control. Id. at 184. Accordingly the district court denied the relief sought in the complaint and dismissed the cause. The Supreme Court, in a summary decision, affirmed the holding of the three-judge district court. 396 U.S. 12.
The district court concluded that, “[u]nlike a fine wine, [Beacham] has not aged well,” but it remains binding precedent that cannot, as the district court suggested, simply be ignored. We are bound by the Supreme Court’s summary determinations. See Picou v. Gillum, 874 F.2d 1519, 1521 n.3 (11th Cir. 1989) (“The Supreme Court’s summary dispositions are of course entitled to full precedential respect.”). A summary disposition affirms the judgment and that which is essential to the judgment. Ill. State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 182 (1979) (“[T]he precedential effect of a summary affirmance can extend no farther than the precise issues presented and necessarily decided . . . .” (quotations omitted)); see also id. at 182–83 (“A summary disposition affirms only the judgment of the court below, and no more may be read into our action than was essential to sustain that judgment.” (citations omitted)). The Supreme Court has since cited Beacham approvingly, observing, “we have
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summarily affirmed two decisions of three-judge District Courts rejecting constitutional challenges to state laws disenfranchising convicted felons.” Richardson v. Ramirez, 418 U.S. 24, 53 (1974) (citing Beacham, 300 F. Supp. 182, aff’d 396 U.S. 12).
Other precedents confirm the broad discretion of the executive to grant and deny clemency. In Connecticut Board of Pardons v. Dumschat, 452 U.S. 458 (1981), the Supreme Court held that a state was entitled to vest the Board of Pardons with “unfettered discretion” to grant pardons based on “purely subjective evaluations . . . by those entrusted with the decision,” leaving inmates with only a “unilateral hope” for pardon. Id. at 464–66. Still again, in Ohio Adult Parole Authority v. Woodard, 523 U.S. 272 (1998), the Supreme Court reaffirmed that, because clemency decisions are “matter[s] of grace” by which the executive may consider “a wide range of factors not comprehended by earlier judicial proceedings and sentencing determinations,” the state could allocate pardons in a purely discretionary manner without procedural safeguards under the Due Process Clause. Id. at 281. Finally, in Smith v. Snow, 722 F.2d 630 (11th Cir. 1983), a panel of this Court addressed Due Process and Eighth Amendment claims attacking Georgia’s purely discretionary pardon regime. First, we ruled that Smith’s Due Process claim was foreclosed by Dumschat. Id. at 631-32. Next, the Court held that the failure of Smith’s Eighth Amendment claim necessarily followed. Id. at 632. If a state
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pardon regime need not be hemmed in by procedural safeguards, it cannot be
attacked for its purely discretionary nature. Id. (“If one has no right to procedures,
the purpose of which is to prevent arbitrariness and curb discretion, then one clearly
has no right to challenge the fact that the decision is discretionary.”).
Perhaps of even greater importance, we are obliged to recognize that § 2 of
the Fourteenth Amendment expressly empowers the states to abridge a convicted
felon’s right to vote. It reads this way:
Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
U.S. Const. amend., XIV § 2 (emphasis added). And the Supreme Court has
explicitly cited the text of § 2 as it has recognized the power of the state to bar felons
from voting. Thus, for example, it has held that “the exclusion of felons from the
vote has an affirmative sanction in § 2 of the Fourteenth Amendment.” Richardson,
418 U.S. at 54.
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It is also true, however, that since Beacham, the Supreme Court has
recognized that, at least in limited circumstances, a state’s pardon power may be
cabined by judicial decree. Thus, in Hunter, the Supreme Court made it clear that a
state’s method for reenfranchising a convicted felon would violate equal protection
if the scheme had both the purpose and effect of invidious discrimination. Justice
Rehnquist wrote for a unanimous Court:
Presented with a neutral state law that produces disproportionate effects along racial lines, the Court of Appeals was correct in applying the approach of Arlington Heights to determine whether the law violates the Equal Protection Clause of the Fourteenth Amendment: “[O]fficial action will not be held unconstitutional solely because it results in a racially disproportionate impact. . . . Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.”
Hunter v. Underwood, 471 U.S. 222, 227–28 (1985) (alterations in original)
(quoting Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264–65
(1977)); see also Osborne v. Folmar, 735 F.2d 1316, 1317 (11th Cir. 1984).
The problem for the appellees in this case, however, is that they have not
shown (nor have they even claimed) that Florida’s constitutional and statutory
scheme had as its purpose the intent to discriminate on account of, say, race, national
origin, or some other insular classification; or that it had the effect of a disparate
impact on an insular minority. All we have is the assertion by the appellees and a
statement by the district court that there is a real “risk” of disparate treatment and
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discrimination, precisely because the Florida regime is standardless. Such a risk of discrimination, however, is likely insufficient under Beacham and Hunter.
Moreover, we have rejected, en banc, that Florida’s felon-disenfranchisement regime was enacted with a discriminatory purpose, and the appellees have not offered anything suggesting otherwise. See Johnson v. Governor of State of Fla., 405 F.3d 1214, 1223–27 (11th Cir. 2005) (en banc). In Johnson, we examined whether Florida’s vote-restoration regime, either historically or as revised over time, had “racial discrimination [as] a substantial or motivating factor” and determined that it did not. Id. at 1223. We found no “contemporaneous evidence showing that racial discrimination motivated” the initial disenfranchisement provision, but even assuming that it had been so motivated, we held that “Florida’s felon disenfranchisement provision is constitutional because it was substantively altered and reenacted in 1968 in the absence of any evidence of racial bias.” Id. at 1223, 1225. All the appellees have offered in this case is a “risk” that standardless determinations “could” lead to impermissible discrimination; that is not enough to show a discriminatory purpose or effect. The State Executive Clemency Board has made a strong showing it is likely to succeed on appellees’ equal protection claim.
II. We also conclude that the State Executive Clemency Board will likely succeed on the merits of the First Amendment claim. The appellees allege that
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Florida’s felon-reenfranchisement regime facially violates the First Amendment because it vests the Executive Clemency Board with “unfettered discretion” to engage in a “standard-less process of arbitrary and discriminatory decision-making, which is untethered to any laws, rules, standards, criteria, or constraints of any kind, and unconstrained by any definite time limits,” thereby abridging their right to vote and creating an impermissible risk of “arbitrary, biased, and/or discriminatory treatment.” [Plaintiffs’ Mot. for Summ. J. at 16, 18] The appellees expressly disclaim reliance on any anecdotal examples of discrimination and offer nothing suggesting that any of them were the victims of viewpoint discrimination, asserting that “[f]acial attacks on the discretion granted a decisionmaker are not dependent on the facts surrounding any particular permit decision,” since “[t]he success of a facial challenge on the grounds that an ordinance delegates overly broad discretion to the decisionmaker 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.” [Appellees’ Resp. to Mot. for Stay at 10] The appellees, therefore, suggest that “actual discrimination need not be proven.” [Id. at 12]
Their theory likely fails for at least three reasons. First, our case law establishes that the First Amendment affords no greater voting-rights protection beyond that already ensured by the Fourteenth Amendment. Because a standardless pardon process, without something more, does not violate the
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Fourteenth Amendment, it follows that it does not run afoul of the First Amendment. In the second place, Florida’s power to disenfranchise voters is expressly sanctioned by § 2 of the Fourteenth Amendment. And finally, no First Amendment challenge to a felon-disenfranchisement scheme has ever been successful.
It is well established in this Circuit that the First Amendment provides no greater protection for voting rights than is otherwise found in the Fourteenth Amendment. In Burton v. City of Belle Glade, 178 F.3d 1175 (11th Cir. 1999), the plaintiffs alleged that the City of Belle Glade’s failure to annex their housing project deprived them of the right to vote in violation of the First and Fourteenth Amendments. Id. at 1183. After rejecting the plaintiffs’ Fourteenth Amendment claim, the Court disposed of plaintiffs’ First Amendment contention, holding that “since the First and Thirteenth Amendments afford no greater protection for voting rights claims than that already provided by the Fourteenth and Fifteenth Amendments, we conclude that the district court did not err in dismissing these claims.” Id. at 1188 n.9 (citations omitted). Additionally, in Cook v. Randolph County, 573 F.3d 1143 (11th Cir. 2009), Cook contended that the County Board of Registrars’ attempt to change his voting registration infringed his right to vote under the First and Fourteenth Amendments. Id. at 1148. There, a panel of this Court dismissed Cook’s First Amendment claim, holding still again that “[t]he First and Thirteenth Amendments afford no greater protection for voting rights claims than
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that already provided by the Fourteenth and Fifteenth Amendments.” Id. at 1152 n.4 (quoting Burton, 178 F.3d at 1188 n.9); see also Irby v. Virginia State Bd. of Elections, 889 F.2d 1352, 1359 (4th Cir. 1989) (“Having found no violations of the Equal Protection Clause and the Fifteenth Amendment, we likewise conclude that plaintiffs’ First and Thirteenth Amendment claims must fail. In voting rights cases, the protections of the First and Thirteenth Amendments do not in any event extend beyond those more directly, and perhaps only, provided by the fourteenth and fifteenth amendments.”) (internal quotation marks omitted)).
Because Florida likely has established that its felon-reenfranchisement regime does not violate the Equal Protection Clause of the Fourteenth Amendment, it is unlikely indeed that the same exercise of the pardon power violates the First Amendment. Since a standardless reenfranchisement scheme, without more, does not state a claim for an Equal Protection violation based on invidious discrimination, it likely follows that a standardless scheme, without more, cannot establish a First Amendment violation based on viewpoint discrimination. While a discretionary felon-reenfranchisement scheme that was facially or intentionally designed to discriminate based on viewpoint -- say, for example, by barring Democrats, Republicans, or socialists from reenfranchisement on account of their political affiliation -- might violate the First Amendment, cf. Hunter, 471 U.S. at 227–28; Shepherd v. Trevino, 575 F.2d 1110, 1114 (5th Cir. 1978), no such showing has
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been made in this case. Indeed, the district court, having said nothing about invidious purpose, could discern only that there was a “risk” that a standardless regime could possibly yield viewpoint discrimination. Thus, even if the First Amendment could be employed in this case in lieu of the Fourteenth -- and that is not an easy argument to sustain in the face of controlling case law -- something more than risk likely would have to be shown.
In the wake of Beacham, Dumschat, Woodard, and Smith, a purely discretionary clemency regime does not, without something more, violate the Fourteenth Amendment. As we see it, a constitutional challenge arising under the First Amendment but asserting the same basic claim -- that standardless clemency regimes create an unacceptable risk of discriminatory determinations -- is unlikely to yield a different result. In other words, the appellees likely cannot succeed by bringing the same challenge using only a different label or nomenclature.
It’s also pretty clear that, in a reenfranchisement case, the specific language of the Fourteenth Amendment controls over the First Amendment’s more general terms. Cf. Graham v. Connor, 490 U.S. 386, 395 (1989) (holding that the Fourth Amendment governed rather than the Fourteenth Amendment because the Fourth Amendment’s “explicit text[]” addressed the precise question at issue as opposed to the Fourteenth Amendment’s “more generalized notion”); Cty. of Sacramento v. Lewis, 523 U.S. 833, 843 (1998) (a general constitutional provision applies only if
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the matter presented is not “covered by” a more specific provision); West v. Davis, 767 F.3d 1063, 1067 (11th Cir. 2014) (“[W]hen a specific provision of the Constitution is allegedly infringed, a court must decide the claim in accordance with the terms of that provision rather than under the more general rubric of substantive due process.”). Thus, just as “section 2 of the fourteenth amendment blunts the full force of section 1’s equal protection clause with respect to the voting rights of felons,” Shepherd, 575 F.2d at 1114, § 2 likewise blunts the First Amendment’s application here.
Moreover, although First Amendment attacks on discretionary pardon schemes have been few and far between, the Supreme Court “ha[s] strongly suggested in dicta that exclusion of convicted felons from the franchise violates no constitutional provision.” Ramirez, 418 U.S. at 53 (emphasis added). And every First Amendment challenge to a discretionary vote-restoration regime we’ve found has been summarily rebuffed. See, e.g., Kronlund v. Honstein, 327 F. Supp. 71, 73 (N.D. Ga. 1971); Farrakhan v. Locke, 987 F. Supp. 1304, 1314 (E.D. Wash. 1997); Johnson v. Bush, 214 F. Supp. 2d 1333, 1338 (S.D. Fla. 2002) (King, J.), aff’d sub nom. Johnson, 405 F.3d at 1214; Hayden v. Pataki, No. 00 Civ. 8586 (LMM), 2004 WL 1335921, at *6 (S.D.N.Y. June 14, 2004); Howard v. Gilmore, 205 F.3d 1333 (unpublished table decision), 2000 WL 203984 at *1 (4th Cir. 2000).
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Finally, the First Amendment cases cited by the appellees appear inapposite to a reenfranchisement case. Those cases established the longstanding and important but (for our purposes) unremarkable point that a state cannot vest officials with unlimited discretion to grant or deny licenses as a condition of engaging in protected First Amendment activity. See, e.g., Forsyth Cty. v. Nationalist Movement, 505 U.S. 123, 130–33 (1992); City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 757–58 (1988). Thus, for instance, Forsyth County discussed an ordinance that granted officials with boundless authority to authorize or forbid, and assess fees on, “public speaking, parades, or assemblies in the archetype of a traditional public forum,” which the Supreme Court deemed a “prior restraint on speech.” 505 U.S. at 130 (quotation omitted). Likewise, City of Lakewood involved a licensing statute that reposed in the government the unbridled power to permit or deny the placement of newspaper-dispensing devices on public sidewalks. 486 U.S. at 753. There too, the Court struck down the statute as a “prior restraint.” Id. at 757. However, this precedent does not bear directly on the matters presented by this case. Indeed, none of the cited cases involved voting rights or even mentioned the First Amendment’s interaction with the states’ broad authority expressly grounded in § 2 of the Fourteenth Amendment to disenfranchise felons and grant discretionary clemency.
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The long and short of it is that the State Executive Clemency Board is likely to
succeed as well on the merits of the appellees’ facial First Amendment claim.
III.
As a separate matter, Florida is also likely to succeed on the merits because
there are serious and substantial problems that inhere in the remedies the district
court has chosen -- injunctions commanding that the State Executive Clemency
Board cannot refuse to reenfranchise felons and that the Governor and his cabinet
must fashion out of whole cloth new standards by April 26, 2018. In particular, the
injunctions flatly prohibit the State Executive Clemency Board “from ending all
vote-restoration processes” for convicted felons. The district court crafted the
permanent injunctions this way:
Defendants are PERMANENTLY ENJOINED from enforcing the current unconstitutional vote-restoration scheme. Defendants are also PERMANENTLY ENJOINED from ending all vote-restoration processes. On or before April 26, 2018, Defendants shall promulgate specific and neutral criteria to direct vote-restoration decisions in accordance with this Order. On or before April 26, 2018, Defendants shall also promulgate meaningful, specific, and expeditious time constraints in accordance with this Order. Defendants shall file with this Court its modified rules on or before April 26, 2018.
However, as we’ve noted, § 2 of the Fourteenth Amendment expressly
provides for reduction of representation to the states if they deny or abridge the right
to vote “except for participation in rebellion, or other crime.” U.S. Const. amend.
XIV, § 2. Indeed, the district court acknowledged that “[i]t is well-settled that a
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state can disenfranchise convicted felons under Section Two of the Fourteenth Amendment.” And it correctly explained that a state may do so “permanently.” Nonetheless, after concluding only that the Florida regime posed a risk of discrimination among applicants, the district court enjoined Florida from exercising the authority that § 2 clearly establishes because the district court concluded that the Florida constitution “presumes a restoration process exists” only because it “bars [any] felon[] from voting ‘until restoration of civil rights.’” Fla. Const. art. VI, § 4(a) (emphasis added by district court). But the district court cannot enjoin Florida to follow the district court’s interpretation of Florida’s own constitution. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 106 (1984). And we can find no case law even remotely suggesting that the state cannot bar all felons (without drawing any distinctions) from being eligible for reenfranchisement.
What’s more, the permanent injunctions entered by the district court command the Governor and three cabinet members to promulgate new standards no later than April 26. These standards must determine when and how to exercise the Governor’s power in order to reenfranchise convicted felons. As a court sitting in equity, that seems to us to be a tall order, even assuming the district court had the authority to enter this command in the first place. After all, there are a multitude of considerations for them to study, including but not limited to whether the Clemency Board should adopt mathematical criteria, how “specific and neutral” the criteria
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should be, whether arrests or convictions for certain kinds of misdemeanor or felony offenses (and there are many) should be either relevant or categorically disqualifying, the kinds of rules previous Florida officials and other states have put in place and how they have worked in practice, and whether the Board should create a newly bifurcated system for processing applications involving civil rights other than voting rights, such as the right to serve on a jury or to hold or run for public office.
Thus, on this ground as well, the State Executive Clemency Board has demonstrated a substantial likelihood of success on the merits.
IV. Having determined that the State Executive Clemency Board has made a strong showing on the merits as to all of the appellees’ claims, we further believe the Clemency Board likely has met its burden overall. The State Executive Clemency Board likely has shown irreparable harm absent a stay. Beyond whether the injunction directs the State Executive Clemency Board to do something it is by no means clear the court can compel it to do, the State Executive Clemency Board would be harmed if it could not apply its own laws to grant clemency to eligible applicants now, even if it might later be able to afford these applicants clemency pursuant to a system not yet in place and not of the State Executive Clemency Board’s choosing. See Maryland v. King, 567 U.S. 1301,
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1301 (2012) (Roberts, C.J., in chambers) (“[A]ny time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.” (quotations omitted)).
The State Executive Clemency Board also has a substantial interest in avoiding chaos and uncertainty in its election procedures, and likely should not be forced to employ a rushed decision-making process created on an artificial deadline now, just because a more thorough decision-making process could be employed later. We are reluctant to upset the system now in place -- particularly since the district court order creates so truncated a schedule -- when there is a good chance the district court’s order may be overturned, and the system would need to be changed still again, potentially re-disenfranchising those who have been reenfranchised pursuant to the district court’s injunction. Put another way, there is wisdom in preserving the status quo ante until a panel of this Court, on an expedited basis, has had an opportunity on full briefing to come to grips with the many constitutional and equitable issues that have been raised. To this end, in a separate order, this Court has directed the Clerk to accelerate the briefing schedule and oral argument in the appeal.
As for injury to the appellees, they surely have an interest in regaining their voting rights sooner rather than later, especially since some of them apparently have been waiting a long time to have their rights restored. By the same token, however,
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since the injunctive relief fashioned by the district court permanently enjoins the defendants from enforcing the current voter-restoration scheme, in the absence of a stay the Governor is barred from reenfranchising anyone (including any of the nine appellees). Nor have the appellees explained why they’ve waited until now to sue over these rights, nor, finally, have they shown that denying a stay will necessarily increase the speed with which their voting rights may be restored, considering that this Court has accelerated briefing of the merits and oral argument so that the matter can be resolved quickly.
Moreover, a stay of the district court’s order would serve any number of substantial public interests: allowing the continued restoration of voting rights to convicted felons while the suit progresses; ensuring proper consultation and careful deliberation before overhauling the State Executive Clemency Board’s voter-eligibility requirements; and preserving autonomy of the State Executive Clemency Board’s exercise of its power to pardon.
In short, the State Executive Clemency Board has met its burden under Nken. Accordingly, the appellants’ motion is GRANTED, and the injunctions entered by the district court are STAYED pending the resolution of this appeal.
The Clerk is directed to treat any motion for reconsideration of this order as a non-emergency matter.
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MARTIN, J., concurring in part and dissenting in part: The U.S. Constitution allows states to ban people convicted of felonies from
exercising their right to vote. See Richardson v. Ramirez, 418 U.S. 24, 56, 94 S. Ct. 2655, 2671 (1974). Florida does this through laws that put the burden on convicted felons to have their right to vote restored. See Fla. Const. Art. VI, §§ 4(a), 8(a); Fla. Stat. Ann. §§ 97.041, 944.292. It is these laws that are the core of the case before us.
In Florida, a person with a felony conviction may legally vote only if the Governor and two additional members of the Clemency Board (“Board”) restore her voting rights. See Fla. R. Exec. Clemency 4. The Board’s power in this regard is without limit. The Board has the “unfettered discretion to grant [restoration of the right to vote] at any time, for any reason.” Id. at 4. Likewise, the Governor has “unfettered discretion to deny [this restoration] at any time, for any reason.” Id. Thus, the Board and the Governor have complete control over whether and when those with a felony conviction are permitted to vote and thereby take part in “the essence of a democratic society.” Reynolds v. Sims, 377 U.S. 533, 555, 84 S. Ct. 1362, 1378 (1964)
The plaintiffs in this case are nine Floridians who have been convicted of felonies and have served their sentences. They are, however, not eligible to vote, because their restoration applications have either been rejected or have been pending
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for years.1 They sued Florida Governor Rick Scott and the three other members of the Board2 asserting that Florida’s scheme for restoration of voting rights is unconstitutional on its face under the First and Fourteenth Amendments. The District Court granted summary judgment for the plaintiffs. It did so based on its finding that Florida’s vote restoration scheme violated the First Amendment’s guarantees of Free Expression and Free Association and the Fourteenth Amendment’s guarantee of Equal Protection because the scheme allows the Governor and the Board complete, unrestrained discretion in deciding whether and when to grant or deny the restoration of voting rights. The District Court then went on to declare the defendants’ vote restoration scheme unconstitutional; enjoin the defendants from enforcing that scheme and from ending all vote-restoration processes; and order the defendants to “promulgate specific and neutral criteria to direct vote-restoration decisions” and “promulgate meaningful, specific, and expeditious time constraints” for vote restoration decisions. The defendants moved the District Court to stay its orders pending appeal. Explaining that the defendants did not meet the demanding requirements for this remedy, the District Court denied their request. Now, Florida asks the same of us.
1 One plaintiff is not eligible to apply for restoration until June of 2019. 2 Those members are Florida’s Attorney General, Florida’s Chief Financial Officer, and Florida’s Commissioner of Agriculture.
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I. A stay pending appeal “is an intrusion into the ordinary process of administration and judicial review.” Nken v. Holder, 556 U.S. 418, 427, 129 S. Ct. 1749, 1757 (2009) (quotation omitted). A stay, in other words, is meant to be used only in extraordinary circumstances. See id. It is “not a matter of right, even if irreparable injury might otherwise result to the appellant.” Id. at 438, 129 S. Ct. at 1763 (quotation omitted). In reviewing a party’s application for a stay, we consider four factors to “ensure that courts do not grant stays pending appeal improvidently.” Chafin v. Chafin, 742 F.3d 934, 937 n.7 (11th Cir. 2013) (per curiam). Those factors are: (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies. Nken, 556 U.S. at 426, 129 S. Ct. at 1756 (2009) (quotation omitted). The first two of these factors are “the most critical.” Id. at 434, 129 S. Ct. at 1761. As to the party’s likelihood of success on the merits, “more than a mere possibility of relief is required.” Id. (quotation omitted); see also id. (indicating that “the traditional stay inquiry calls for assessing” the third and fourth factors “[o]nce an applicant satisfies the first two factors”).
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II.
The defendants have demonstrated, at most, a mere possibility they may
succeed on appeal as to the plaintiffs’ First Amendment claims. This
demonstration is not enough, in my view, to entitle them to “an intrusion into the
ordinary processes of administration and judicial review.” Nken, 556 U.S. at 427,
129 S. Ct. at 1757.
The District Court ruled that Florida’s vote restoration scheme violated two
First Amendment rights: the right to Free Expression and the right to Free
Association. In order to reach these conclusions, the District Court necessarily
and actually found that voting constitutes the sort of expressive and associational
activity protected by the First Amendment. The District Court decision on the
plaintiffs’ First Amendment claims is on sound legal footing that could well be
adopted by the merits panel of judges of this Court through de novo review.
Despite the defendants’ arguments to the contrary, precedent does not require us to reject the reasoning of the District Court.3 Nor, for that matter, does
3 I agree with the majority that that the Supreme Court’s summary affirmance in Beacham appears to foreclose the plaintiffs’ Fourteenth Amendment claims. See Beacham v. Braterman, 300 F. Supp. 182 (S.D. Fla.), aff'd, 396 U.S. 12, 90 S. Ct. 153 (1969). In Beacham, a three-judge district court panel found that “it is [not] a denial of equal protection of law and due process of law for the Governor of Florida, with the approval of three members of the Cabinet, to restore discretionarily the right to vote to some felons and not to others.” Id. at 184. The Supreme Court summarily affirmed. Beacham v. Braterman, 369 U.S. 12, 90 S. Ct. 153. Summary affirmances “prevent lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided by those actions.” Picou v. Gillum, 813 F.2d 1121, 1122 (11th Cir. 1987) (quotation omitted). Reading the Beacham summary affirmance as foreclosing Fourteenth
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it establish the requisite “strong showing that [they are] likely to succeed on the merits.” Nken, 556 U.S. at 434, 129 S. Ct. at 1761. Most importantly, the Supreme Court has left open the possibility that the First Amendment does protect the right to vote. See Shapiro v. McManus, 577 U.S. __, 136 S. Ct. 450, 456 (2015) (holding that plaintiffs’ claim that “Maryland’s redistricting plan burdens their First Amendment right of political association” was not frivolous in part because it was “based on a legal theory . . . uncontradicted by the majority in any of our cases”).
Indeed, in his concurring opinion in Vieth v. Jubelirer, Justice Kennedy suggested that the right to vote may have First Amendment protections. See 541 U.S. 267, 313–16, 124 S. Ct. 1769, 1797–98 (2004) (Kennedy, J., concurring in judgment). Although Justice Kennedy joined the ruling that the partisan gerrymandering in that case was non-justiciable under the Fourteenth Amendment’s Equal Protection Clause and Article I, § 2, he reasoned that the First Amendment may provide an effective vehicle for allegations of partisan gerrymandering, as “these allegations involve the First Amendment interest of not burdening or penalizing citizens because of their participation in the electoral process, their voting history, their association with a political party, or their expression of political
Amendment claims against Florida’s vote restoration scheme is the proper way to understand what the Supreme Court necessarily decided. Thus, I disagree with the majority’s more expansive reading of Beacham, and I believe our precedent on interpreting summary affirmances supports my position.
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views.” Id. at 314, 124 S. Ct. at 1797. Justice Kennedy continued, noting that “[i]f a court were to find that a State did impose burdens and restrictions on groups or persons by reason of their views, there would likely be a First Amendment violation, unless the State shows some compelling interest.” Id. at 315, 124 S. Ct. at 1797. If precedent required a contrary conclusion, the Court would have held that the claim in Shapiro was constitutionally insubstantial. But, based in part on Justice Kennedy’s conclusions regarding the First Amendment’s protection for “participation in the electoral process,” the Court allowed the claim to proceed. See Shapiro, 136 S. Ct. at 456.
Neither does this Circuit’s precedent foreclose the plaintiffs’ First Amendment claims. The defendants ask us to rule otherwise based on a footnote in Burton v. City of Belle Glade, 178 F.3d 1175 (11th Cir. 1999). Burton affirmed the dismissal of a minority vote dilution claim brought under the First, Thirteenth, Fourteenth, and Fifteenth Amendments, and noted that “the First and Thirteenth Amendments afford no greater protection for voting rights claims than that already provided by the Fourteenth and Fifteenth Amendments.” Id. at 1187, 1188 n.10. But Burton was only capable of deciding what was before the Court: whether the First Amendment provides more protection than the Fourteenth Amendment for claims alleging that government action has diluted, or impermissibly weakened the effect of, one’s right to vote. See, e.g., United States v. Kaley, 579 F.3d 1246, 1253
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n.10 (11th Cir. 2009) (“[D]icta is defined as those portions of an opinion that are not
necessary to deciding the case then before us.” (quotation omitted)). Burton did not
decide whether the First Amendment protects the right to vote under the circumstances of the plaintiffs before us.4 These plaintiffs are not making a vote dilution claim. Indeed, they have no vote that could be diluted.5
III.
I am therefore aware of no precedent that directly forecloses the plaintiffs’
First Amendment claims. We must next inquire into whether precedent from the
Supreme Court and our Court supports their claims.
Our First Amendment rights of free expression and free association are most
critical when they are invoked to ensure citizens’ free and full participation in the
political process. “Speech is an essential mechanism of democracy.” Citizens
United v. Fed. Election Comm’n, 558 U.S. 310, 339, 130 S. Ct. 876, 898 (2010).
As with the right of free expression, the Supreme Court has emphasized that the First
Amendment right of free association is integral to our democracy’s political process.
4 Further support for this conclusion lies in the fact that Burton cited two vote dilution cases as support for this pronouncement: Washington v. Finlay, 664 F.2d 913, 927–28 (4th Cir. 1981), and Lucas v. Townsend, 783 F. Supp. 605, 608 (M.D. Ga. 1992), aff’d on other grounds, 967 F.2d 549 (11th Cir. 1992). See Burton, 178 F.3d at 1188 n.10.
5 Cook v. Randolph County, 573 F.3d 1143 (2009), quotes Burton’s statement regarding the First Amendment and voting rights. Id. at 1152 n.4. Burton’s statement was likewise not necessary to the result in Cook, which held, in pertinent part, that Cook’s claim was to be dismissed because “he did not actually suffer a deprivation of any of the constitutional or statutory rights he asserts.” See id. at 1152–54.
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“Political belief and association constitute the core of those activities protected by the First Amendment.” Elrod v. Burns, 427 U.S. 347, 356, 96 S. Ct. 2673, 2681 (1976). “Representative democracy . . . is unimaginable without the ability of citizens to band together in promoting among the electorate candidates who espouse their political views.” Cal. Democratic Party v. Jones, 530 U.S. 567, 574, 120 S. Ct. 2402, 2408 (2000).
The question, then, is whether there is a compelling argument that these rights of speech and association encompass the right to vote. I believe there is. As I’ve said, the Supreme Court has left open the possibility that the First Amendment offers distinct protections for the right to vote. See, e.g., Shapiro, 136 S. Ct. at 356.
Beyond that, the Supreme Court has invalidated regulatory regimes that burden the right to vote expressly on First Amendment grounds. Striking down a state regime establishing early filing deadlines for independent presidential candidates, the Court noted that “we base our conclusions directly on the First and Fourteenth Amendments and do not engage in a separate Equal Protection Clause analysis.” Anderson v. Celebrezze, 460 U.S. 780, 786 n.7, 103 S. Ct. 1564, 1569 n.7 (1983); see also Norman v. Reed, 502 U.S. 279, 288 n.8, 112 S. Ct. 698, 705 n.8 (1992) (expressly employing only the First and Fourteenth Amendments in striking down a state law establishing signature requirements for new parties
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wishing to run candidates in local elections). In Anderson, the Court relied on precedent “identif[ying] the First and Fourteenth Amendment rights implicated by restrictions on the eligibly of voters and candidates.” Anderson, 460 U.S. at 786 n.7, 103 S. Ct. at 1569 n.8. The Court noted that the state laws at issue burdened “two different, although overlapping kinds of rights”—the right to freely associate “for the advancement of political beliefs” and the right to vote. Id. at 787, 103 S. Ct. at 1569 (quotation omitted). Thus, the Court has approved of rooting protection for the right to vote in the First Amendment.
This should come as no surprise. Indeed, the Supreme Court has said that the right to vote is “the essence of a democratic society,” and “any restrictions on [it] strike at the heart of representative government.” Reynolds, 377 U.S. at 555, 84 S. Ct. at 1378. And the right to vote is closely related to, if not encompassed by, the rights of political association and political expression. It is through voting that citizens engage in a form of political association, as Anderson and Norman suggest. Indeed voting allows citizens to speak, by expressing their choice on an issue, party, or candidate. See Kramer v. Union Free Sch. Dist. No. 15, 395 U.S. 621, 626–27, 89 S. Ct. 1886, 1889 (1969) (noting that, without the vote, citizens are denied “any effective voice in the governmental affairs which substantially affect their lives”); see also Alexander Meiklejohn, The First Amendment is an Absolute, 1961 Sup. Ct. Rev. 245, 256 (concluding that, “in addition to speech, press, assembly, and
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petition,” the First Amendment protects “the freedom to ‘vote,’ the official expression of a self-governing man’s judgment on issues of public policy,” a freedom that “must be absolutely protected”). Thus, I believe there is a compelling argument that the First Amendment independently protects the right to vote, as the District Court found.
IV. I now turn to the question of whether there is a compelling argument that defendants’ scheme impermissibly burdens the plaintiffs’ right to vote under the First Amendment. The plaintiffs and the District Court both liken the vote restoration scheme to a permitting or licensing scheme. This analogy is persuasive because the Board is tasked with deciding whether or not to allow—or to permit or license—someone convicted of a felony to vote again. The Supreme Court has routinely struck down schemes that condition the exercise of First Amendment rights on permits or licenses when an official with unfettered discretion controls that process. See, e.g., Forsyth County, Ga. v. Nationalist Movement, 505 U.S. 123, 133, 112 S. Ct. 2396, 2403 (1992) (striking down ordinance that left the determination of a fee to be charged for assembling or parading “to the whim of [an] administrator”); City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 769–72, 108 S. Ct. 2138, 2150–52 (1988) (striking down ordinance that gave mayor complete discretion in doling out permits to publishers
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seeking public newsracks for their publications). In the same way, the Supreme Court has regularly invalidated government schemes that do not place time constraints on the administrators of such licensing schemes. See, e.g., FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 225–29, 110 S. Ct. 596, 604–07 (1990) (striking down ordinance that set no time limits on administrator charged with deciding whether to issue licenses to adult entertainment businesses); Riley v. Nat’l Fed’n for the Blind of N.C., 487 U.S. 781, 801–03, 108 S. Ct. 2667, 2680–81 (1988) (striking down state law that requires professional fundraisers to obtain a license before engaging in solicitation, because there were no express or established customary time limits constraining the decisionmaker).
Our Court has done the same. See, e.g., Atlanta Journal & Constitution v. City of Atlanta Dep’t of Aviation, 322 F.3d 1298, 1310–11 (11th Cir. 2003) (en banc) (reiterating that “[a] grant of unrestrained discretion to an official responsible for monitoring and regulating First Amendment activities is facially unconstitutional” and invalidating a scheme that set “no explicit limits” on Department of Aviation’s power to set fees on publishers seeking to place newsracks at an airport and allowed the Department to “cancel a publisher’s license for any reason whatsoever” (quotation omitted)); Sentinel Comm. Co. v. Watts, 936 F.2d 1189 (11th Cir. 1991).
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These decisions reflect concern that vesting officials with unbridled discretion to determine whether, and when, to allow someone to speak creates an impermissible risk of viewpoint discrimination. As the Supreme Court explained in Plain Dealer, “a law or policy permitting communication in a certain manner for some but not for others raises the specter of content and viewpoint censorship.” 486 U.S. at 763, 108 S. Ct. at 2147. The Court continued, “[t]his danger is at its zenith when the determination of who may speak and who may not is left to the unbridled discretion of a government official.” Id. And that risk is similarly significant where there are no time constraints on that official’s decision. FW/PBS, Inc., 493 U.S. at 227, 110 S. Ct. at 605 (“A scheme that fails to set reasonable time limits on the decisionmaker creates the risk of indefinitely suppressing permissible speech.”).
The defendants’ vote restoration scheme gives them unbridled discretion. In the words of the Rules of Executive Clemency, the Board has “unfettered discretion” to permit an applicant to exercise her right to vote “at any time, for any reason.” Fla. R. Exec. Clemency 4. And the Governor has “unfettered discretion” to deny an applicant the right to legally vote “at any time, for any reason.” Id. This unbridled discretion is not just concerning when it confronts expressive and associational freedoms traditionally protected by the First Amendment, but also when it threatens the right to vote. See Louisiana v. United States, 380 U.S. 145, 153, 85 S. Ct. 817,
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822 (1965) (“The cherished right of people in a country like ours to vote cannot be obliterated by the use of laws like this, which leave the voting fate of a citizen to the passing whim or impulse of an individual registrar.”).
It is no answer to say we should presume that the Board will exercise its discretion in good faith. The Supreme Court rejected just this defense in Plain Dealer, concluding “this is the very presumption that the doctrine forbidding unbridled discretion disallows.” 486 U.S. at 770, 108 S. Ct. at 2151. Instead, “[t]he doctrine requires that [limits on official discretion in such schemes] be made explicit by textual incorporation, binding judicial or administrative construction, or well-established practice.” Id. The defendants make no showing that clear limits restrict their authority. To the contrary, they say the law requires validation of the unfettered discretion vested in the Board and the Governor.
Neither is the answer that, because the defendants can disenfranchise all convicted felons, their choice to selectively re-enfranchise some cannot be subject to limitations. The Supreme Court rejected a quite similar “greater-includes-the-lesser” argument in Plain Dealer. See id. at 762–69, 108 S. Ct. at 2147–50. The Court concluded that “when the government is willing to prohibit a particular manner of speech entirely . . . the risk of governmental censorship is simply not implicated.” Id. at 768, 108 S. Ct. at 2150. But this case is not about a complete bar—it is about the process by which the Board selectively
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doles out the right to vote. This case should remind us that the Court “has long been sensitive to the special dangers inherent in a law placing unbridled discretion directly to license speech, or conduct commonly associated with speech, in the hands of a government official.” Id. at 767–68, 108 S. Ct. at 2149–50.
The defendants liken their vote restoration scheme to the exercise of clemency power, a power traditionally exercised with minimal limitations from the judiciary. But the defendants recognize that clemency power is not immune from judicial review and constitutional scrutiny. See Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 288–89 (1998) (O’Connor, J., concurring) (holding that, in the due process context, “some minimal procedural safeguards apply to clemency proceedings,” suggesting that clemency-by-coin-flip might violate due process); see also Wellons v. Comm’r, Georgia Dep’t of Corr., 754 F.3d 1268, 1269 (11th Cir. 2014) (recognizing that Justice O’Connor’s Woodard concurrence set binding precedent); Shepherd v. Trevino, 575 F.2d 1110, 1114 (5th Cir. 1978) (concluding that states’ power to disenfranchise those convicted of felonies does not permit states to restore voting rights to whites only or otherwise “make a completely arbitrary distinction between groups of felons”). And the defendants point us to no decisions that would require us to reject the plaintiffs’ First Amendment claims because they involve matters typically committed to executive discretion. Cf. Osborne v. Folmar, 735 F.2d 1316, 1317 (11th Cir. 1984) (holding that the line of
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Supreme Court cases that limited procedural due process claims in the context of clemency did not foreclose equal protection claims challenging clemency determinations, e.g., on the basis of invidious discrimination). In my view, drawing up neutral criteria to mitigate the risk that vote restoration decisions are predicated on the applicants’ viewpoints or beliefs need not be the tall order the defendants describe. Certainly there are processes by which the First Amendment and executive prerogative can both be respected.
V. I don’t believe the defendants have met their burden under Nken for a stay pending this appeal. They have demonstrated nothing more than a mere possibility of success on the merits of the plaintiffs’ First Amendment claim. I would, however, modify the permanent injunction imposed by the District Judge ending all vote restoration processes. See Trump v. Int’l Refugee Assistance Project, 582 U.S. __, 137 S. Ct. 2080, 2087 (2017) (noting that a court “may, in its discretion, tailor a stay so that it operates with respect to only some portion of the proceeding” (quotation omitted)). As I understand Ramirez, the Constitution empowers states to choose to permanently disenfranchise those convicted of felonies. Richardson v. Ramirez, 418 U.S. at 56, 94 S. Ct. at 2671. Other than that feature of the injunction, I would leave the injunction in place. See Atlanta Journal & Constitution., 322 F.3d
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at 1312 (retaining “that portion of the injunction that prohibited the administration of any plan that did not explicitly constrain official discretion”).
I respectfully dissent.
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 Case 4:17-cv-00128-MW-CAS Document 184 Filed 01/10/20 Page 1 of 6 Case: 18-11388 Date Filed: 01/10/2020 Page: 1 of 5

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-11388 ________________________
D.C. Docket No. 4:17-cv-00128-MW-CAS

JAMES MICHAEL HAND, JOSEPH JAMES GALASSO, HAROLD W. GIRCSIS, JR., CHRISTOPHER MICHAEL SMITH, WILLIAM BASS, JERMAINE JOHNEKINS, YRAIDA LEONIDES GUANIPA, JAMES LARRY EXLINE, VIRGINIA KAY ATKINS,
versus

Plaintiffs - Appellees,

RON DESANTIS, in his official capacity as Governor of Florida and member of the State of Florida’s Executive Clemency Board, ASHLEY MOODY, in her official capacity as the Attorney General of Florida and member of the Executive Clemency Board, NICOLE FRIED, in her official capacity as Commissioner of Agriculture and member of the Executive Clemency Board, JIMMY PATRONIS, in his official capacity as Chief Financial Officer and member of the Executive Clemency Board,
Defendants - Appellants.

Case 4:17-cv-00128-MW-CAS Document 184 Filed 01/10/20 Page 2 of 6 Case: 18-11388 Date Filed: 01/10/2020 Page: 2 of 5
________________________
Appeal from the United States District Court for the Northern District of Florida ________________________
(January 10, 2020) Before ED CARNES, Chief Judge, BRANCH, Circuit Judge, and GAYLES,* District Judge.
BRANCH, Circuit Judge:
The Executive Clemency Board of the State of Florida (the “Board”) appeals
the district court’s orders (1) denying in part its motion for summary judgment; and
(2) permanently enjoining Florida’s former system for re-enfranchising convicted
felons. James Hand and eight other convicted felons (collectively, “Hand”)
asserted that the former system—which involved state constitutional, statutory, and
regulatory provisions—facially violated their First and Fourteenth Amendment
rights. On cross-motions for summary judgment, the district court granted Hand’s
motion on three of four counts,1 and in a separate order issued permanent
injunctions prohibiting the Board from enforcing the then-current vote-restoration
* Honorable Darrin P. Gayles, United States District Judge for the Southern District of Florida, sitting by designation.
1 The district court granted Hand’s motion and denied the Board’s motion with respect to Count One (unfettered discretion in the re-enfranchisement process violates the First Amendment), Count Two (unfettered discretion violates the Fourteenth Amendment), and Count Three (lack of time limits in processing the re-enfranchisement petitions violates the First Amendment). The district court denied Hand’s motion for summary judgment and granted the Board’s motion for summary judgment on Count Four (challenging the five- and seven-year waiting periods before applying for restoration of voting rights). Count Four is not before us in this appeal.
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system and ending all vote-restoration processes, inter alia.2 After granting a
motion for stay, we heard oral argument as to the merits of the Board’s appeal. On
November 6, 2018, Florida voters amended their state constitution by referendum
vote as it concerns the re-enfranchisement of convicted felons.3 And on July 1,
2019, Florida’s legislature revised its statutory scheme for re-enfranchisement,4
thus setting into motion a new system for vote restoration. Under the new system,
Hand and his fellow plaintiffs claim they are eligible to seek restoration of their
voting rights.
We have jurisdiction to reach the merits of a case only where there is an
active controversy. “The rule in federal cases is that an actual controversy must be
extant at all stages of review, not merely at the time the complaint is filed.” Steffel
v. Thompson, 415 U.S. 452, 459 n.10 (1974). “If events that occur subsequent to
the filing of a lawsuit or an appeal deprive the court of the ability to give the
2 Additionally, the district court directed the Board to promulgate new criteria for voterestoration within thirty days of the court’s order and reconsider applicants who had been denied restoration since the time of the court’s first order on cross-motions for summary judgment.
3 Fla. Const. art. VI, § 4(a) (amended 2018) (“[A]ny disqualification from voting arising from a felony conviction shall terminate and voting rights shall be restored upon completion of all terms of sentence including parole or probation.”).
4 The legislature amended Fla. Stat. § 944.292(1) by adding the following sentence: “Notwithstanding the suspension of civil rights, such a convicted person may obtain restoration of his or her voting rights pursuant to s. 4, Art. VI of the State Constitution and s. 98.0751.” The legislature also enacted Fla. Stat. § 98.0751, which in the part relevant here, subsection (1), states: “A person who has been disqualified from voting based on a felony conviction for an offense other than murder or a felony sexual offense must have such disqualification terminated and his or her voting rights restored pursuant to s. 4, Art. VI of the State Constitution upon the completion of all terms of his or her sentence, including parole or probation.”
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plaintiff or appellant meaningful relief, then the case is moot and must be
dismissed.” World Wide Supply OU v. Quail Cruises Ship Mgmt., 802 F.3d 1255,
1259 (11th Cir. 2015) (quoting Al Najjar v. Ashcroft, 273 F.3d 1330, 1336 (11th
Cir. 2001)).
In light of the changes to Florida’s voter re-enfranchisement system since
this case began, we no longer have the ability to accord Hand meaningful relief
from the former system which he challenged. In supplemental briefing following
oral argument, both parties concede that each individual plaintiff is eligible to seek
re-enfranchisement under Florida’s new system. Thus, no plaintiff requires relief
from Florida’s former re-enfranchisement system. We therefore hold that this case
is moot.
Accordingly, the district court’s order on cross-motions for summary
judgment dated February 1, 2018 is VACATED as to Counts One, Two, and
Three. The district court’s order directing entry of judgment dated March 27, 2018 is hereby VACATED in its entirety.5 This case is hereby REMANDED with
5 Hand requests we vacate our prior stay-panel opinion, Hand v. Scott, 888 F.3d 1206 (11th Cir. 2018). The Supreme Court in United States v. Munsingwear, Inc., 340 U.S. 36, 39–41 (1950), held that a circuit court should vacate as moot a district court’s order where the case becomes moot pending appeal. Such vacatur is necessary, the Court reasoned, in order to prevent a district court’s judgment from “spawning any legal consequences.” Id. at 41; see generally U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18 (1994) (addressing whether “appellate courts in the federal system should vacate civil judgments of subordinate courts in cases that are settled after appeal is filed”) (emphasis added). But Munsingwear does not address what a circuit court must do with its own prior stay order when a case has become moot. Hand cites to several of our cases which he asserts are on point but which are not. See
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instructions to DISMISS for mootness.
Ethredge v. Hail, 996 F.2d 1173, 1177 (11th Cir. 1993) (vacating a district court’s judgment); Dow Jones & Co., Inc. v. Kaye, 256 F.3d 1251, 1258–59 (11th Cir. 2001) (same); Atlanta Gas Light Co. v. F.E.R.C., 140 F.3d 1392, 1404 (11th Cir. 1998) (vacating a federal agency’s orders); Vann v. Citicorp Sav. of Ill., 891 F.2d 1507, 1509 (11th Cir. 1990) (vacating a prior jurisdictionpanel order where the merits panel made an opposite determination on the jurisdictional question). The Fourth Circuit, however, addressed this issue squarely in F.T.C. v. Food Town Stores, Inc., 547 F.2d 247, 249 (4th Cir. 1977), and expressly declined to vacate its own prior order granting a stay after the case became moot. The court reasoned that “[a]n order granting a stay . . . is not a final adjudication of the merits of the appeal,” and therefore it “has no res judicata effect and the rationale of the Munsingwear doctrine thus is inapplicable.” Id. at 249. We find the Fourth Circuit’s reasoning persuasive and hereby adopt it and decline to vacate our prior stay-panel opinion. By contrast, the Tenth Circuit in McClendon v. City of Albuquerque, 100 F.3d 863, 868 n.1 (10th Cir. 1996), vacated its own prior order granting a stay without adequate explanation and is thus unpersuasive. As well, the D.C. Circuit’s action in United States v. Schaffer, 240 F.3d 35 (D.C. Cir. 2001) (en banc), is inapposite as that court vacated prior merits-panel judgments which had res judicata effect.
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Case 4:17-cv-00128-MW-CAS Document 184 Filed 01/10/20 Page 6 of 6 Case: 18-11388 Date Filed: 01/10/2020 Page: 1 of 1

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

ELBERT PARR TUTTLE COURT OF APPEALS BUILDING 56 Forsyth Street, N.W. Atlanta, Georgia 30303

David J. Smith Clerk of Court

January 10, 2020

MEMORANDUM TO COUNSEL OR PARTIES
Appeal Number: 18-11388-GG Case Style: James Hand, et al v. Rick Scott, et al District Court Docket No: 4:17-cv-00128-MW-CAS

For rules and forms visit www.ca11.uscourts.gov

This Court requires all counsel to file documents electronically using the Electronic Case Files ("ECF") system, unless exempted for good cause. Enclosed is a copy of the court's decision filed today in this appeal. Judgment has this day been entered pursuant to FRAP 36. The court's mandate will issue at a later date in accordance with FRAP 41(b).

The time for filing a petition for rehearing is governed by 11th Cir. R. 40-3, and the time for filing a petition for rehearing en banc is governed by 11th Cir. R. 35-2. Except as otherwise provided by FRAP 25(a) for inmate filings, a petition for rehearing or for rehearing en banc is timely only if received in the clerk's office within the time specified in the rules. Costs are governed by FRAP 39 and 11th Cir.R. 39-1. The timing, format, and content of a motion for attorney's fees and an objection thereto is governed by 11th Cir. R. 39-2 and 39-3.

Please note that a petition for rehearing en banc must include in the Certificate of Interested Persons a complete list of all persons and entities listed on all certificates previously filed by any party in the appeal. See 11th Cir. R. 26.1-1. In addition, a copy of the opinion sought to be reheard must be included in any petition for rehearing or petition for rehearing en banc. See 11th Cir. R. 35-5(k) and 40-1 .

Counsel appointed under the Criminal Justice Act (CJA) must submit a voucher claiming compensation for time spent on the appeal no later than 60 days after either issuance of mandate or filing with the U.S. Supreme Court of a petition for writ of certiorari (whichever is later) via the eVoucher system. Please contact the CJA Team at (404) 335-6167 or cja_evoucher@ca11.uscourts.gov for questions regarding CJA vouchers or the eVoucher system.

Pursuant to Fed.R.App.P. 39, each party to bear own costs.

For questions concerning the issuance of the decision of this court, please call the number referenced in the signature block below. For all other questions, please call Joseph Caruso, GG at (404) 335-6177.
Sincerely,
DAVID J. SMITH, Clerk of Court
Reply to: Jeff R. Patch Phone #: 404-335-6151

OPIN-1A Issuance of Opinion With Costs