Posted on 06/22/2023 12:47:46 PM PDT by Right Wing Vegan
Kentucky Governor Andy Beshear restored voting rights to nonviolent felons in 2019, but a group of convicted criminals argued Thursday that relief does not prevent a First Amendment challenge to the commonwealth's re-enfranchisement procedure.
The lawsuit was originally filed in 2018 against then-Governor Matt Bevin, a Republican, and claimed Kentucky's re-enfranchisement protocol for felons – involving a decision by the governor alone – violated the First Amendment because it gave the governor "unfettered discretion" over a criminal's voting rights.
Beshear, a Democrat, took office shortly thereafter and signed an executive order to restore voting rights to all nonviolent felons who completed their sentences and paid off any fines.
U.S. District Judge Karen Caldwell, an appointee of George W. Bush, dismissed the case in August 2020 and ruled Beshear's executive order provided the "non-arbitrary criteria" for reinstatement of voting rights the plaintiffs sought and, therefore, mooted the case.
"The governor's discretion is no longer unfettered and absolute because, under the Executive Order, the scheme now automatically re-enfranchises those who have been convicted of state-law felonies (with specific exceptions)," she said. "Plaintiffs seek a non-arbitrary system for restoring the franchise to convicted felons that is guided by objective criteria -- it appears that they have received that relief."
The convicts appealed to the Sixth Circuit, which determined the claims of individuals whose rights were not restored by Beshear's order were not mooted.
Upon remand, Caldwell again dismissed the case in July 2022, this time for lack of standing. She determined the remaining plaintiffs had not suffered a concrete injury as a result of the re-enfranchisement scheme, especially considering two of the three had not even applied to have their voting rights restored.
The case was again appealed to the Sixth Circuit, and the convicted felons argued in their brief they were not required to apply for re-enfranchisement before they brought their First Amendment suit.
"The U.S. Supreme Court has ... repeatedly underscored that a plaintiff challenging such an arbitrary licensing system on unfettered discretion grounds is not required to first apply for and be denied a license to engage in that constitutionally protected conduct before filing suit," they said.
Caldwell erred when she considered the relief granted by the governor a "partial pardon," according to the plaintiffs, who urged the appeals court to render its own decision on the merits.
In its brief, the commonwealth argued the "mere possibility" one of the plaintiffs might be denied relief if they seek re-enfranchisement is insufficient to support a First Amendment claim, and also disputed their argument regarding Supreme Court precedent.
"A pardon is not an ongoing licensing scheme that allows the governor to consider plaintiffs' prior expression," it said. "It is a one-time act of clemency unassociated with plaintiffs' prior expression."
Attorney Jon Sherman of the Fair Elections Center in Washington, D.C., argued Thursday on behalf of the convicted felons and told the panel Caldwell erred when she decided the merits of the case and then "impermissibly backtracked" to dismiss on jurisdictional grounds.
U.S. Circuit Judge Chad Readler, an appointee of Donald Trump, questioned the attorney about the merits of his clients' case and asked why voting is expressive conduct under the First Amendment.
Sherman cited numerous U.S. Supreme Court cases, including Norman v. Reed and Anderson v. Celebrezze, both of which dealt with candidates seeking placement on a ballot, not individuals' right to vote.
Senior U.S. Circuit Judge Danny Boggs, a Ronald Reagan appointee, emphasized the distinction.
"Nobody knows how [a vote] comes out," he said. "Doesn't that make it not expressive?"
"Anonymity of speech does not negate the expressive conduct," Sherman answered.
Readler asked the attorney why at least two of his clients have not yet petitioned Beshear for restoration of their voting rights.
"Couldn't you just apply and get rulings [and appeal those]?" he asked. "Instead of this odd game? It seems to me there is a fairly clear path here."
Sherman pointed out such actions would only affect his three clients, and not the other convicted felons who might seek to regain their right to vote.
"They can call it a pardon or a partial pardon," he told the panel, "but 40 states are dealing with this outside of the clemency process. ... There's no effective way to know what's happening in this 'black box' system [of review by the governor]."
Taylor Payne, chief deputy of Beshear's general counsel, argued on behalf of the governor and was questioned immediately by Readler about why his client has not adjudicated the petition filed by Sherman's client.
"It's wild to me," Readler said. "Why has the governor sat on these applications? It just feels like you could make this case go away [with a decision]."
Payne denied Beshear is "dragging his feet" on the applications and emphasized each governor has his or her own criteria to determine whether a convicted felon is "worthy" of being re-enfranchised.
"Are there any criteria?" asked Senior U.S. Circuit Judge Helene White, a George W. Bush appointee. "Is there any internal definition of 'worthy?'"
The governor's attorney conceded there is no definition, but pushed back against the "black box" argument made by his opposing counsel.
"There is no right to timeliness on the decision or to impose outside procedural protections," Payne said. "Plaintiffs have lost any constitutional right to assert ... so there is no process of the governor licensing them to exercise those rights. They're gone."
During his rebuttal, Sherman pounced on the opportunity to use Payne's own words about the lack of definitive criteria against him.
"That is as clear an unfettered discretion violation as this court is ever likely to see," he told the panel.
No timetable has been set for the court's decision.
The Left wants this in the worst way. They want people to be able to vote while serving sentences.
Exactly! That's why even though I would like to see ex cons voting again, allowing it is a step towards voting booths, and campaign speeches, in jailhouses.
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Felon’s child: I consider all my plates to be vanity plates because dad made them in prison.
(Jeff Foxworthy)
With the Massive commercial prison complexes. it is likely that IF prisoners could vote, They could easily be a majority of a jurisdiction’s population.
What happens when mayor, Every member of the Town council, School board, etc. possibly state rep or Senator is a resident/ inmate at the prison?
Good points.
When asked why he went about with a lamp in broad daylight, Diogenes confessed, “I am looking for an honest man.”
They want people to be able to vote while serving sentences.
If they have served their time I believe they should get their rights back.
If they are still inside then no.
Can you IMAGINE??
What if the prisoners banded together. And elected a whole school board of convicted child molesters? Just because, they could. and it would be funny..
convicted embezzlers into town council/ town auditor etc..
Dept of health, restaraunt inspectors...
And if they elected a State position.. Would they have to allow that state rep, to move to and from prison and the state house as an offical gov function?
With the sheer numbers in a prison. It is very easy to see a LOT of inmates getting elected to any number of slots.
I am not insensible to the notion that people who have served their time should be granted voting privileges, though I admit, for violent crimes I balk at restoring their 2nd Amendment rights.
But like you, Right Wing Vegan, I can see downsides to it.
Maybe Otis could inform Andy and Barney the town jail is now privately owned and he’s in charge.
What does “without due process of law” mean? Does it mean the same thing in 2023 as 1787 ?
While on parole, probation, appeal, work-release are they still serving time?
Prisoners already got Stimulus checks-——
Prisoners already got Stimulus checks
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So did my deceased wife. The word “deceased” was printed next to her name on the check, in bold type.
I have an excellent way for the prisoners to fix the issue.
Stop committing felonies that lose you your rights.
This, like early voting, ranked-choice voting, mail-in ballots, ballot-harvesting, are all of Demo-Communist origin. This plot is intentionally eroding John Adams’ Electorate of God-fearing People.
“Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.”
Prisoners who start with sentence reductions (pleas), or get early releases, haven’t “served their time”.
Voting while in prison will have their Demo-Communist votes harvested to out-vote their guards.
Let’s not be squishes when it comes to strengthing our Republic.
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