With time running out, a federal appeals court late Wednesday sided with Florida in an escalating battle over the state’s process for restoring voting rights for former prisoners.UPDATE -- A few readers have emailed me expressing surprise that with this panel, Marcus ended up siding with Gov. Scott. But that's really no surprise. Former President Bill Clinton appointed 4 judges to the 11th Circuit -- Rosemary Barkett, Frank Hull, Stanley Marcus, and Charles Wilson. Marcus and Hull have been two of the most conservative members of the Court since that time (over 20 years). Judge Hull just took senior status, and Judge Barkett no longer serves on the Court, so that leaves Charles Wilson and Stanley Marcus as two members of the "old" guard.
U.S. District Judge Mark Walker had given Florida until Thursday to create a new process after ruling in February that the state’s current system is unconstitutional and arbitrary, with decisions possibly swayed by politics and racial factors.
But a three judge panel of the Atlanta-based 11th U.S. Circuit Court of Appeals blocked Walker’s ruling while it considers an appeal from Gov. Rick Scott and other Florida Republican officials.
Walker’s ruling had kept the ban intact, but he had challenged the current system that requires a former prisoner to wait between five and seven years before they can even ask to have their voting rights back. The governor and the three elected Cabinet members then decide each request individually, subject to the governor’s unilateral veto.
It wasn’t always this way. Shortly after taking office in 2007, then-Republican Gov. Charlie Crist convinced two of the state’s three Cabinet members to approve rules allowing the parole commission to restore voting rights for nonviolent felons without hearings, and ultimately more than 100,000 felons were allowed to vote again.
Scott and state officials changed the process in 2011, and since then fewer than 3,000 have had their rights restored. The governor has defended the change, saying that former prisoners should have to demonstrate they can remain out of trouble before their voting rights are returned.
Last year, however, a group of former prisoners who had their applications turned down sued the state.
In its split ruling, the federal appeals court concluded that Florida has a good chance of prevailing in its appeal and questioned Walker’s decision to order the state put in place a new process. U.S. Circuit Judge Stanley Marcus wrote that there should not be a “rushed decision-making process created on an artificial deadline.”
“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,” Marcus wrote.
There are 12 active members of the 11th Circuit:
Chief Judge Ed Carnes (Bush)
Gerald Tjoflat (Ford)
Stanley Marcus (Clinton)
Charles Wilson (Clinton)
William Pryor (Bush)
Beverly Martin (Obama)
Adalberto Jordan (Obama)
Robin Rosenbaum (Obama)
Julie Carnes (Obama, taking senior status in June; Trump has nominated Britt Grant)
Jill Pryor (Obama)
Kevin Newsom (Trump)
Elizabeth Branch (Trump)
So that makes 6 Republican appointments (including Grant) and 6 Democratic appointments. But practitioners know that the 6 Dem appointments are not all "liberal" leaning. And some of them, like Marcus, are extremely conservative, especially on criminal justice issues. It's too early to tell how the Trump appointees are going to line up.