Hand,et al v. Scott,et al

[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
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
2
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
3
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
5
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
6
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.
7
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
8
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
9
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
10
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
11
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
12
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
13
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).
14
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.
15
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
16
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
17
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,
18
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,
19
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.
20
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
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.
22
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”).
23
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
24
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 protects
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.
25
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 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 n.10 (11th Cir.
26
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.
27
“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
28
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
29
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
30
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).
31
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,
32
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
33
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 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 Supreme
34
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
35
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.
36