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Hand v. Scott

United States Court of Appeals, Eleventh Circuit

April 25, 2018

JAMES MICHAEL HAND, et al., Appellees,
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 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.


         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 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 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 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 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.

          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 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.


         We also conclude that the State Executive Clemency Board will likely succeed on the merits of the First Amendment claim. The appellees allege that 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 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 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 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 ...

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