Felon voting rights trial is delayed

The fate of a voting rights lawsuit filed by 613,000 former Florida felons now will be decided by an entire federal appellate court. The ruling means many ex-felons could miss the presidential vote.

BY JAY WEAVER

A federal appeals court on Tuesday delayed indefinitely a long-awaited Miami trial to decide whether more than 600,000 former felons in Florida could have their voting rights automatically restored.

The 11th U.S. Circuit Court of Appeals in Atlanta agreed to reconsider an earlier appellate panel's order to hold the trial on Florida's 136-year-old law that bars felons from voting.

The ruling disappointed advocates for ex-felons who say the law is racially discriminatory because blacks comprise a disproportionate number of the former convicts.

The decision marked another turning point in the class-action case, which was filed weeks before Florida's divisive 2000 presidential election ended with George W. Bush winning the state and the White House by only 537 votes over Al Gore.

The ruling also means many ex-felons, who could make the difference in a tight race, will miss out on a chance to vote in another presidential election.

Florida is one of six states that prohibit felons from voting after they've served their time, unless the ex-convicts regain that right by applying to the Clemency Board.

''This makes it wide open,'' said lawyer Deborah Goldberg of the Brennan Center for Justice, which filed the class-action case. ``We're hoping the entire appellate court . . . lets this case go back to trial.''

BOOST FOR STATE

Gov. Jeb Bush's office and lawyers for the state praised the decision as a big boost for their side.

''It's a strong signal that the appeals court is going to uphold Florida's common-sense approach to voting by felons,'' said Washington, D.C., attorney David Thompson, who is representing the governor and other state officials in the case.

The Atlanta court's ruling follows the state's decision this month to scrap a flawed database to remove felons from the voter rolls after media reports revealed the list failed to capture most ex-convicts who classified themselves as Hispanic.

State election officials were already under siege after The Herald reported that the ''purge'' list included people many of them black Democrats who have already had their voting rights restored.

Now the 12-member Atlanta appellate court will have to decide whether there are legal grounds to allow the Miami trial to go forward to redress the ex-felons' complaints. The rehearing has not been scheduled yet. At the earliest, it would be held in October, one month before the presidential election, but it could also be pushed back until next year.

In December, the appellate court's three-judge panel reversed Senior U.S. District Judge James Lawrence King of Miami, who had decided no trial was necessary because he saw no evidence of racial bias when Florida legislators readopted the felon-disenfranchisement law 36 years ago. King, in his July 2002 ruling dismissing the suit, said there were no facts in dispute, either.

OVERRULED

In a 2-1 vote, appellate Judges Rosemary Barkett and John Fullam disagreed with King's ruling, saying the ex-convicts' evidence showed ''Florida's disenfranchisement of felons has a disproportionate impact on African Americans'' and that ''there are disputed facts to be resolved'' regarding equal protection and voting rights claims.

In their opinion, they said the state must prove the 1968 Legislature did not discriminate against blacks when it slightly amended a post-Civil War law barring ex-felons from voting.

Now that question must be decided by the entire appellate court.

`DISAPPOINTED'

''Of course, I'm extremely disappointed it has taken two years on this appeal and four years in the case so far,'' said Adora Obi Nweze, president of the NAACP in Florida. ``When it's cases they don't care about, they put it through all sorts of legal maneuvering so it's not resolved before this year's election.''

Lawyer Randall Marshall, legal director for the American Civil Liberties Union in Florida, said the length of time it took the appellate court just to decide on the state's request for a rehearing seven months was not unusually long. But Marshall, who has been a vocal critic of the state's disenfranchisement law, said the governor could end it with the stroke of a pen.

''The governor could have an impact on this tomorrow, because he has the authority under the state Constitution to grant clemency in a much broader and quicker way than he has chosen to do so,'' Marshall said. ``He could restore their voting rights automatically with an executive order without requiring them to go through clemency.''

Gov. Bush has defended the state's clemency system, saying that 20,000 ex-felons recently had their voting rights restored.

''The governor is pleased that the court of appeals recognized there are important legal principles that should be considered by all members of the court,'' said his spokesman, Jacob DiPietre.

VIOLATED RIGHTS

In their opinion, Barkett and Fullam, who was a visiting federal district judge from Pennsylvania, found that preliminary evidence in the case showed Florida's ban violated the former felons' rights.

They said a trial judge, upon hearing all the historical facts of the case, could conclude ``this evidence demonstrates intentional racial discrimination . . . in violation of the Voting Rights Act.''

Barkett, a former Florida Supreme Court chief justice, wrote the opinion.

Senior Appellate Judge Phyllis Kravitch disagreed with her colleagues' ruling.

For the upcoming rehearing, both Barkett and Kravitch will be among the 12 appellate judges deciding the fate of the voting rights case. Appellate Judge Stanley Marcus, based in Miami, indicated he will not participate, but gave no reason in Tuesday's order.