No. 18-11388 G

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT

JAMES MICHAEL HAND, et al.,

Plaintiffs-Appellees,

v.

RICK SCOTT, in his official capacity as Governor of Florida and member of the State of Florida’s Executive Clemency Board, et al.,

Defendants-Appellants.

On Appeal from the United States District Court for the Northern District of Florida, No. 4:17-cv-00128-MW-CAS, Judge Mark E. Walker

BRIEF FOR AMICUS CURIAE DEMOS IN SUPPORT OF APPELLEES AND AFFIRMANCE

June 28, 2018

CHIRAAG BAINS* DEMOS 740 6th Street, NW. Second Floor Washington, DC 2001 (202) 864-2746 *Admitted to practice law in Massachusetts; not admitted in the District of Columbia. Practice limited pursuant to DC. App. R. 49(c)(3).

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CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT

Pursuant to Federal Rule of Appellate Procedure 26.1 and Eleventh Circuit

Rule 26.1, Amicus Curiae Dēmos submits the following certificate of interested

persons:

1. Agarwal, Amit, Attorney for Defendants-Appellants

2. Atkins, Virginia Kay, Plaintiff-Appellee

3. Atwater, Jeff, Defendant

4. Baker, Brittnie R., Attorney for Plaintiffs-Appellees

5. Bass, William, Plaintiff-Appellee

6. Blake, Julie Marie, Attorney for Amicus Curiae

7. Bondi, Pam, Defendant-Appellant

8. Center for Equal Opportunity, Amicus Curiae

9. Cohen Milstein Sellers & Toll, Attorney for Plaintiffs-Appellees

10. Cohen, Michelle Kanter, Attorney for Plaintiffs-Appellees

11. Coonrod, Melinda N., Defendant

12. Davidson, Richard D., Defendant-Appellant

13. Davis, Ashley E., Attorney for Defendants-Appellants

14. Detzner, Ken, Defendant

15. Dunbar, Kelly P., Attorney for Amicus Curiae

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16. Executive Clemency Board of the State of Florida

17. Exline, James Larry, Plaintiff-Appellee

18. Fair Elections Legal Network, Attorneys for Plaintiffs-Appellees

19. Florida Commission on Offender Review

20. Florida Department of Corrections

21. Florida Department of State

22. Fugett, David Andrews, Attorney for Defendant-Appellant Ken

Detzner

23. Galasso, Joseph James, Plaintiff-Appellee

24. Gircsis, Harold W., Jr., Plaintiff-Appellee

25. Glogau, Jonathan Alan, Attorney for Defendants-Appellants

26. Gringer, David, Attorney for Amicus Curiae

27. Guanipa, Yraida Leonides, Plaintiff-Appellee

28. Hand, James Michael, Plaintiff-Appellee

29. Harle, Denise, Attorney for Defendants-Appellants

30. Hawley, Joshua D., Attorney for Amicus Curiae

31. Johnekins, Jermaine, Plaintiff-Appellee

32. Jones, Julie L., Defendant-Appellant

33. Jones, William Jordan, Attorney for Defendant-Appellant Ken

Detzner

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34. Landry, Jeff, Attorney for Amicus Curiae

35. Leopold, Theodore Jon, Attorney for Plaintiffs-Appellees

36. Martin, Diana L., Attorney for Plaintiffs-Appellees

37. Marshall, Steve, Attorney for Amicus Curiae

38. McCall, Julia, Defendant-Appellant

39. Neff, Lance, Attorney for Defendants-Appellants

40. Park, Jr., John J., Attorney for Amicus Curiae

41. Patronis, Jimmy, Defendant-Appellant

42. Paxton, Ken, Attorney for Amicus Curiae

43. Pratt, Jordan E., Attorney for Defendants-Appellants

44. Putnam, Adam H., Defendant-Appellant

45. Razavi, Poorad, Attorney for Plaintiffs-Appellees

46. Reyes, Sean D., Attorney for Amicus Curiae

47. Sauer, D. John, Attorney for Amicus Curiae

48. Scott, Rick, Defendant-Appellant

49. Schuette, Bill, Attorney for Amicus Curiae

50. The Sentencing Project, Amicus Curiae

51. Sherman, Jonathan Lee, Attorney for Plaintiffs-Appellees

52. Schlackman, Mark R., Amicus Curiae

53. Schmidt, Derek, Attorney for Amicus Curiae

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54. Smith, Christopher Michael, Plaintiff-Appellee

55. State of Alabama, Amicus Curiae

56. State of Kansas, Amicus Curiae

57. State of Louisiana, Amicus Curiae

58. State of Michigan, Amicus Curiae

59. State of Missouri, Amicus Curiae

60. State of South Carolina, Amicus Curiae

61. State of Texas, Amicus Curiae

62. State of Utah, Amicus Curiae

63. Strickland Brockington Lewis, LLP, Attorney for Amicus Curiae

64. Walker, Hon. Mark E., U.S. District Judge

65. Wenger, Edward M., Attorney for Defendants-Appellants

66. Wilmer Cutler Pickering Hale and Dorr LLP, Attorney for Amicus

Curiae

67. Wilson, Alan, Attorney for Amicus Curiae.

68. Wyant, David A., Defendant-Appellant

No publicly traded company or corporation has an interest in the outcome of

the case or appeal.

s/ Chiraag Bains Chiraag Bains

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TABLE OF CONTENTS

No. 18-11388-G ......................................................................................................... 1 BRIEF FOR AMICUS CURIAE DEMOS IN SUPPORT OF APPELLEES AND AFFIRMANCE ............................................................................................... 1 CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT .................................................................................. i TABLE OF CONTENTS ........................................................................................... v TABLE OF AUTHORITIES ................................................................................... vi STATEMENT OF THE ISSUES............................................................................... 1 IDENTITY AND INTEREST OF AMICUS CURIAE .............................................. 2 SUMMARY OF THE ARGUMENT ........................................................................ 4 ARGUMENT ............................................................................................................. 5

I. Felony Disenfranchisement Has Been Justified as a Means of Social Judgment over Serious Crimes ............................................................................... 5 II. Florida Classifies as Felonies a Wide Range of Non-Violent, Low-Level Offenses .................................................................................................................. 8 III. The Expansion of Felonies to Encompass Conduct Not Viewed As Morally Repugnant Highlights the Need for a Meaningful and Non-Arbitrary Process to Restore Voting Rights. ..........................................................................................13

CONCLUSION ........................................................................................................14

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TABLE OF AUTHORITIES

Cases

A.M. v. State, 147 So. 3d 98 (Fla. Dist. Ct. App. 2014) ..........................................11 Burke v. State, 475 So. 2d 252 (Fla. Dist. Ct. App. 1985) ......................................... 9 Green v. Bd. of Elecs. of N.Y.C., 380 F.2d 445, (2d Cir. 1967) ................................. 7 K.S. v. State, 186 So. 3d 41 (Fla. Dist. Ct. App. 2016) ............................................11 McConnell v. State, 298 So. 2d 550 (Fla. Dist. Ct. App. 1974) ..............................10 Shepherd v. Trevino, 575 F.2d 1110 (5th Cir. 1978) ...........................................8, 13

Statutes

Ala. Code § 28-3A-25 ..............................................................................................12 Fla. Const. art. VI, § 4 ................................................................................................ 4 Fla. Laws Act of May 30, 1997 ...............................................................................12 Fla. R. Exec. Clemency 4 ........................................................................................... 4 Fla. Stat. § 322.212 ..................................................................................................12 Fla. Stat. § 379.365 ..................................................................................................13 Fla. Stat. § 379.366 ..................................................................................................13 Fla. Stat. § 561.5101 ................................................................................................13 Fla. Stat. § 806.13. ...................................................................................................11 Fla. Stat. § 810.09 ....................................................................................................12 Fla. Stat. § 812.014 ..............................................................................................9, 11 Fla. Stat. § 812.015 .................................................................................................... 9 Fla. Stat. § 812.131 ..................................................................................................10 Fla. Stat. § 831.01 ....................................................................................................10 Fla. Stat. § 97.041 ...................................................................................................... 4 Ga. Code Ann. § 16-9-4 ...........................................................................................12

Other Authorities

Adrienne Cutway, Teenage 'Virus' Vandal Arrested in Clermont, Police Say, ClickOrlando.com (June 14, 2018) .......................................................................11

Alec C. Ewald, “Civil Death”: The Ideological Paradox of Criminal Disenfranchisement Law in the United States, 2002 Wis. L. Rev. 1045 (2002) .... 7

Alec Ewald, Punishing at the Polls: The Case Against Disenfranchising Citizens with Felony Convictions, Dēmos (2003) ............................................................2, 6

Archon Fung et al., Working Together to Strengthen Our Nation’s Democracy: Ten Recommendations, Dēmos (2009) .......................................................................... 3

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Brentin Mock, The Confusion Around Restoring Voting Rights, Dēmos PolicyShop (Mar. 13, 2014) ....................................................................................................... 3

Dēmos Briefing Paper Series, The Case Against Felony Disenfranchisement, Dēmos (2006).......................................................................................................... 3

J. Mijin Cha & Liz Kennedy, “Millions to the Polls: The Right to Vote for Formerly Incarcerated Persons” Dēmos (2014) ..................................................... 3

Jake Horowitz & Monica Fuhrmann, States Can Safely Raise Their Felony Theft Thresholds, Research Shows, Pew Charitable Trusts (May 22, 2018) ................... 9

Joseph Hines, The Underreported Story of Ex-Felon Disenfranchisement, Dēmos PolicyShop (Aug. 17, 2012) ................................................................................... 3

Lauren Latterell Powell, Concealed Motives: Rethinking Fourteenth Amendment and Voting Rights Challenges to Felon Disenfranchisement, 22 Mich. J. Race & L. 383 (2017) .......................................................................................................... 7

Pew Charitable Trusts, The Effects of Changing Felony Theft Thresholds (2017) ... 9 Pippa Holloway, “A Chicken-Stealer Shall Lose His Vote”: Disfranchisement for

Larceny in the South, 1874-1890, 75 J.S. Hist. 931 (2009) ................................... 7 The Collateral Consequences of a Criminal Conviction, 23 Vand. L. Rev. 929

(1970) ...................................................................................................................... 6 The Disenfranchisement of Ex-Felons: Citizenship, Criminality, and ‘The Purity of

the Ballot Box,’ 102 Harv. L. Rev. 1300 (1989) .................................................... 6 Three Charged for Stealing, Playing with Fire Extinguishers, WTXL (Apr. 10,

2018) .....................................................................................................................12

Constitutional Provisions

U.S. Const., art. III, § 3, cl. 2 ..................................................................................... 6

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STATEMENT OF THE ISSUES

I. Whether Florida’s arbitrary voting rights restoration scheme for

disenfranchised felons, because it is devoid of any rules, standards, or

criteria for restoration application dispositions, violates the First

Amendment.

II. Whether the lack of reasonable and definite time limits for granting or

denying applications for voting rights restoration in Florida violates the

First Amendment.

III. Whether Florida’s voting rights restoration scheme for disenfranchised

felons, which is devoid of any rules, standards, or criteria for restoration

application dispositions, violates the Equal Protection Clause of the

Fourteenth Amendment.

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IDENTITY AND INTEREST OF AMICUS CURIAE1

Demos is a national, nonpartisan public policy organization working for an

America where all have an equal say in our democracy and an equal chance in our

economy. Founded in 2000, Demos works to remove barriers to political

participation and ensure full representation for all Americans. Demos deploys

original research, advocacy, litigation, and strategic communications to protect

voting rights and ensure that all voices can be heard. In particular, Demos

advocates to expand access to voting for eligible citizens.

Demos has produced research and analysis on felony disenfranchisement

laws since its founding in 2000. In 2003, Demos published Punishing at the Polls,

a report about the history, underlying rationale, and impact of state

disenfranchisement statutes and rights restoration procedures.2 In 2006, Demos

issued a briefing paper on disenfranchisement practices across the country and the

1 All parties have consented to the filing of this brief. Pursuant to Federal Rule of Appellate Procedure 29, amicus states that no party or party’s counsel authored this brief in whole or in part, and that no party, party’s counsel, or person other than counsel for amicus contributed money that was intended to fund the preparation or submission of this brief. 2 Alec Ewald, Punishing at the Polls: The Case Against Disenfranchising Citizens with Felony Convictions, Dēmos (2003), available at http://www.Dēmos.org/sites/default/files/publications/FD_-_Punishing_at_the_Polls.pdf.

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need for reform.3 In 2009, the organization released Working Together to

Strengthen Our Nation’s Democracy: Ten Recommendations, which discussed the

importance of restoring voting rights to people with felony convictions.4 In 2014,

Demos published Millions to the Polls, a report that included a chapter that

advocated for the reenfranchisement of formerly incarcerated persons.5 Voting

rights experts at Demos study and routinely write about the impact of felony

disenfranchisement in elections.6 Demos handles a docket of voting rights

litigation and has filed amicus briefs in this and other federal courts of appeals.

Given its mission, Demos has a strong interest in the Court’s adjudication of

the constitutional challenge to Florida’s system of restoring voting rights to

persons who have been convicted of felonies and have completed their sentences.

3 Dēmos Briefing Paper Series, The Case Against Felony Disenfranchisement, Dēmos (2006), available at http://www.Dēmos.org/sites/default/files/publications/CFE_felonydis_102406.pdf. 4 Archon Fung et al., Working Together to Strengthen Our Nation’s Democracy: Ten Recommendations, Dēmos (2009), available at http://www.Dēmos.org/sites/default/files/publications/stronger_democracy_10_5.pdf. 5 J. Mijin Cha & Liz Kennedy, “Millions to the Polls: The Right to Vote for Formerly Incarcerated Persons” Dēmos (2014), available at http://www.demos.org/publication/millions-polls-right-vote-formerly-incarcerated-persons. 6 See, e.g., Joseph Hines, The Underreported Story of Ex-Felon Disenfranchisement, Dēmos PolicyShop (Aug. 17, 2012), http://www.Dēmos.org/blog/underreported-story-ex-felon-disenfranchisement; Brentin Mock, The Confusion Around Restoring Voting Rights, Dēmos PolicyShop (Mar. 13, 2014), http://www.Dēmos.org/blog/3/13/14/confusion-around-restoring-voting-rights.

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SUMMARY OF THE ARGUMENT

Florida automatically strips persons convicted of any felony of the right to

vote. Fla. Const. art. VI, § 4(a); Fla. Stat. § 97.041(2)(b) (2018). This case is about

whether the state’s process for restoring voting rights—one in which the Governor

has “unfettered discretion to deny clemency at any time, for any reason,” Fla. R.

Exec. Clemency 4—offends the First and Fourteenth Amendments. The district

court held that it does, and that ruling should be affirmed.

In conducting its analysis, this Court should consider the historical basis and

underlying rationale for felony disenfranchisement and should carefully consider

whether those align with the way in which Florida’s restoration process currently

operates. The central justification for disenfranchisement is that people who have

committed felonies—serious crimes—must be morally censured, and that the

repugnance of their criminal acts renders them unfit to participate in the political

community.

Under Florida’s criminal code, however, an extraordinarily broad swath of

low-level unlawful conduct—conduct that one would assume to be at most a

misdemeanor—is classified as a felony. Non-violent economic crimes like low-

level shoplifting and pickpocketing, crimes of youth like creating graffiti and

possessing a fake ID, and enigmatic regulatory offenses governing alcohol

distribution and crab catching are all felonies. Conviction on any of these charges

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renders a citizen indefinitely unable to vote, unless and until they can successfully

navigate the state’s current arbitrary restoration process.

Where state law exposes people of such low moral blameworthiness to

permanent disenfranchisement, a careful examination of the state’s process for

restoring voting rights is all the more vital. The exposure that Floridians have to

loss of their voting rights for minor conduct heightens the need for this Court to

scrutinize the state’s restoration process and insist that it be guided by meaningful

standards. At a minimum, individuals should not be required to go through an

arbitrary and indefinitely long process that may or may not lead to restoration. To

protect the constitutional rights at stake in this case, this Court should affirm the

district court’s judgment and permit the adoption of new rules for voting rights

restoration to take its course.

ARGUMENT

I. Felony Disenfranchisement Has Been Justified as a Means of Social

Judgment over Serious Crimes.

Although the state’s disenfranchisement of individuals is not challenged in

this case, any discussion of the restoration process should begin there. As

explained below, Florida’s legal regime is not compatible with historical

justifications for disenfranchisement. This makes it all the more important that the

state’s restoration of rights process be meaningful and free from arbitrariness.

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Felony disenfranchisement has its roots in the social and political shunning

that took place in early European history of people who had committed serious

moral transgressions. Individuals deemed “infamous” in ancient Greece or

condemned with “infamia” in Roman society were barred from voting and other

political acts.7 In medieval Europe, the concept of “outlawry” was applied to those

who had committed certain crimes, leaving them outside of the law’s protection

and even permitting them to be killed.8 England later developed the concepts of

“attainder” and “civil death,” in which people were stripped of their civil rights,

including voting,9 “based on the fiction that the criminal’s act was evidence that he

and his entire family were corrupt.”10

American colonists imported the moral ostracism of people for criminality.11

Ultimately, our Constitution rejected bills of attainder and “Corruption of Blood,”

U.S. Const., art. III, § 3, cl. 2, but many states eventually passed laws

7 Ewald, supra note 2, at 17. 8 Id. 9 Pippa Holloway, “A Chicken-Stealer Shall Lose His Vote”: Disfranchisement for Larceny in the South, 1874-1890, 75 J.S. Hist. 931, 933 (2009). 10 Note, The Disenfranchisement of Ex-Felons: Citizenship, Criminality, and ‘The Purity of the Ballot Box,’ 102 Harv. L. Rev. 1300, 1301–02 (1989) (quoting Special Project, The Collateral Consequences of a Criminal Conviction, 23 Vand. L. Rev. 929, 941 (1970)) (internal quotation marks omitted); see also Ewald, supra note 2, at 17. 11 Holloway, supra note 9, at 933.

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disenfranchising people for criminal convictions.12 The theory underlying this

justification for disenfranchisement was typically that those who broke the law had

violated the social contract and were no longer entitled to full participation in the

political community. Judge Henry J. Friendly articulated this logic in an opinion

rejecting a challenge to a New York disenfranchisement statute: “A man who

breaks the laws he has authorized his agent to make for his own governance could

fairly have been thought to have abandoned the right to participate in further

administering the compact.” Green v. Bd. of Elecs. of N.Y.C., 380 F.2d 445, 451

(2d Cir. 1967).

Critically, however, this philosophical underpinning for disenfranchisement

depends on the criminal acts involving serious moral transgressions. Other than

with respect to crimes involving the voting process, early American

disenfranchisement statutes usually applied to “egregious violations of the moral

code;”13 they “were typically reserved for the most violent criminals.”14

12 Id. (“By the start of the Civil War the majority of U.S. states permanently disfranchised individuals convicted of serious offenses.”). 13 Alec C. Ewald, “Civil Death”: The Ideological Paradox of Criminal Disenfranchisement Law in the United States, 2002 Wis. L. Rev. 1045, 1062 (2002). 14 Lauren Latterell Powell, Concealed Motives: Rethinking Fourteenth Amendment and Voting Rights Challenges to Felon Disenfranchisement, 22 Mich. J. Race & L. 383, 387 (2017).

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Indeed, this Court has emphasized the serious nature of crimes warranting

disenfranchisement. In Shepherd v. Trevino, 575 F.2d 1110 (5th Cir. 1978), this

Court explained that “A state properly has an interest in excluding from the

franchise persons who have manifested a fundamental antipathy to the criminal

laws of the state or of the nation by violating those laws sufficiently important to be

classed as felonies.” Id. at 1115 (emphases added). Shepherd quite reasonably took

for granted that conduct causing relatively little harm—that is, conduct that does

not signal a “fundamental antipathy to the criminal laws of the state” and that

therefore should be classified as a misdemeanor or lower—would not expose a

citizen to disenfranchisement.

II. Florida Classifies as Felonies a Wide Range of Non-Violent, Low-Level Offenses.

In Florida, however, felonies are not limited to the most serious offenses. To

the contrary, they cover a wide swath of offenses that should be treated at most as

misdemeanors. Nonviolent offenses, low-level thefts often borne of poverty,

pranks committed by juveniles that cause no lasting damage, and regulatory

offenses more appropriate for the civil code are classified as felonies in the state.

Relatively minor economic offenses, many of which are crimes of poverty,

are made third-degree felonies throughout the criminal code. For example, it is a

felony to utter or pass in payment any “false, altered, forged, or counterfeit” note,

bill, or check. Fla. Stat. § 831.09 (2018). In one case, a tenant was convicted for

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amateurishly altering the corners of three one-dollar bills to make them look like

twenty-dollar bills and giving them to his landlord for rent. Burke v. State, 475 So.

2d 252 (Fla. Dist. Ct. App. 1985).

Stealing $300 is grand theft of the third degree, a felony. § 812.014(2)(c)(1).

Shoplifting an aggregate of $300 from two stores in a 48-hour period is also a

felony. § 812.015(8)(b). Since 2000, 39 states have raised the felony threshold

amount for theft—including Mississippi ($1,000), Georgia ($1,500), South

Carolina ($2,000), and Texas ($2,500).15 Florida’s $300 threshold remains

unchanged since 1986, even though adjusted for inflation per the Consumer Price

Index that amount would be $684 in today’s currency.16 This means that an

15 See Jake Horowitz & Monica Fuhrmann, States Can Safely Raise Their Felony Theft Thresholds, Research Shows, Pew Charitable Trusts (May 22, 2018), http://www.pewtrusts.org/en/research-and-analysis/articles/2018/05/22/states-can-safely-raise-their-felony-theft-thresholds-research-shows. A study by the Pew Charitable Trusts indicates that raising the felony theft threshold does not increase crime. Pew Charitable Trusts, The Effects of Changing Felony Theft Thresholds, at 1 (2017), available at http://www.pewtrusts.org/-/media/assets/2017/04/pspp_the_effects_of_changing_felony_theft_thresholds.pdf (finding that the 30 states that raised their threshold between 2000 and 2012 experienced approximately the same average crime decreases as the 20 states that did not, and finding that “a state’s felony threshold—whether it is $500, $1,000, or $2,000, or more—is not correlated with its property crime and larceny rates”). 16 This figure can be obtained using the U.S. Bureau of Labor Statistics Consumer Price Index inflation calculator, available at https://data.bls.gov/cgi-bin/cpicalc.pl, by comparing $300 in October 1986 (the month that threshold went into effect) to May 2018 (the latest month that the calculator allows to be entered).

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individual who today steals less than half of the amount specified when the state

legislature last acted may be convicted of a felony and disenfranchised.

Florida’s general forgery statutes also make felonies of relatively low-level

economic crimes. See § 831.01 (“Whoever falsely makes, alters, forges or

counterfeits a public record, or a certificate . . . or an order, acquittance, or

discharge for money or other property . . . with intent to injure or defraud any

person, shall be guilty of a felony of the third degree.”). This statute has been used

to convict a defendant for forging a signature on a credit card sales receipt for

$62.80 at a gas station. McConnell v. State, 298 So. 2d 550 (Fla. Dist. Ct. App.

1974). It also makes felons of people who sign another person’s name to a traffic

ticket after being stopped and cited by the police, no matter how minor the

underlying traffic violation. See Washington v. State, 685 So. 2d 996 (Fla. Dist. Ct.

App. 1997); Rushing v. State, 684 So. 2d 856 (Fla. Dist. Ct. App. 1996).

Florida law even makes felons out of pickpockets—at least those caught in

the act. The criminal code defines robbery by sudden snatching to mean “the

taking of money or other property from the victim’s person . . . when, in the course

of the taking, the victim was or became aware of the taking.” § 812.131(1). The

statute states explicitly that “it is not necessary to show that: (a) The offender used

any amount of force beyond that effort necessary to obtain possession of the

money or other property; or (b) There was any resistance offered by the victim to

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the offender or that there was injury to the victim's person.” Id. Reported cases

include the prosecution of a child for stealing a cell phone from his friend’s lap,

K.S. v. State, 186 So. 3d 41 (Fla. Dist. Ct. App. 2016), and a juvenile who grabbed

a phone from a man’s hand in the park, A.M. v. State, 147 So. 3d 98 (Fla. Dist. Ct.

App. 2014).

The Florida criminal code also treats as felonies offenses more likely to be

committed by youth, even those that bear little relationship to whether these

individuals will go on to be productive and upstanding members of society. The

criminal mischief statute classifies graffiti causing damage over $1,000—and any

repeated graffiti offenses, however small the damage and even if the first offense is

a misdemeanor—as a felony. § 806.13. In a recent case, a 19-year-old who spray-

painted on buildings, vehicles, and signs was charged with five counts of felony

criminal mischief.17

Theft of a fire extinguisher is also a felony. § 812.014(2)(c)(8). In a scenario

perhaps far from the expectation of lawmakers who applied a charge classification

that carried disenfranchisement as a consequence—three 19-year-olds faced felony

charges earlier this year after becoming intoxicated and spraying fire extinguishers

17 Adrienne Cutway, Teenage ‘Virus’ Vandal Arrested in Clermont, Police Say, ClickOrlando.com (June 14, 2018), https://www.clickorlando.com/news/teenage-virus-vandal-arrested-in-clermont-police-say.

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on cars in an apartment complex garage.18 Neither of Florida’s neighbors, Alabama

and Georgia, specifically criminalize theft of a fire extinguisher, let alone treat it as

a felony.

Even possessing a fake ID is a felony in Florida. § 322.212. Due to a law

enacted in 1997, see Act of May 30, 1997, ch. 97-206, 1997 Fla. Laws 1, this act

could leave a young person with a serious criminal record, expose her to heavy

penalties, and leave her devoid of their voting rights. By comparison, neighboring

Alabama and Georgia both treat the use of fake IDs by people under 21 as a

misdemeanors. Ala. Code § 28-3A-25(a)(21); Ga. Code Ann. § 16-9-4(c)(5)

(West). In Florida, a young person in this situation is forced into the arbitrary,

indefinite restoration process if she wants even a hope of voting during her adult

life.

Finally, state law is replete with specialized regulatory offenses that are

treated as not only criminal in nature, but felonious. State trespass law makes it a

felony to enter unauthorized on a designated construction site larger than one acre,

§ 810.09(2)(d)(1), or commercial horticultural property, § 810.09(2)(e). It is a

felony to “willful[ly] molest[] any stone crab trap, line, or buoy that is the property

of any licenseholder, without the permission of that licenseholder.” §

18 Three Charged for Stealing, Playing with Fire Extinguishers, WTXL (Apr. 10, 2018), http://www.wtxl.com/news/three-charged-for-stealing-playing-with-fire-extinguishers/article_f17a3f38-3cc8-11e8-98fd-c3eec3d793f1.html.

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379.365(2)(c)(1)(a). Florida has an identical felony provision pertaining to blue

crabs. § 379.366(4)(c)(1)(a).19 It is also a felony for a wholesaler to import and

“knowingly and intentionally sell[] malt beverages” to a retail vendor if the alcohol

does not “come to rest at the licensed premises of an alcoholic beverage

wholesaler” in Florida. § 561.5101.

III. The Expansion of Felonies to Encompass Conduct Not Viewed As Morally Repugnant Highlights the Need for a Meaningful and Non-Arbitrary Process to Restore Voting Rights.

The above-discussed offenses are not without any harm. But they do not

involve the type of serious harm that supports the rationale for felony

disenfranchisement that this Court has described. See Shepherd, 575 F.2d at 1115.

In fact, the unlawful conduct contemplated by these statutes is significantly less

harmful than offenses the state itself describes as “relatively non-serious.”

Appellants’ Br. at 44 (using these words to characterize Steven Warner’s

convictions for possession of marijuana, assault, and illegal voting).

19 Neighboring states treat similar offenses as misdemeanors. Both Alabama and Georgia treat criminal trespass as a misdemeanor, with no specialized exceptions for construction sites or greenhouses. Ala. Code § 13A-7-3; Ga. Code Ann. § 16-7-21(d) (West). In fact, Alabama carves out an exception for trespass of critical infrastructure buildings like power plants and water treatment facilities—but even that offense is classed as a misdemeanor. Ala. Code § 13A-7-4.3. In Alabama, stealing crabs from another’s trap is a misdemeanor. Ala. Code § 9-12-124. Molesting crab traps was originally a misdemeanor in Florida as well, but the state upgraded the offense to a felony in 1980. Act of July 2, 1980, ch. 80-299, 1980 Fla. Laws 1314.

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To be sure, the Florida Constitution’s disenfranchisement provision applies

by its terms to all felonies. But where a criminal code is so expansive that it

classifies as felonies conduct of minor moral blameworthiness, it is critical that the

state’s process for restoring voting rights be meaningful and non-arbitrary. In short,

the extent to which Florida subjects people to disenfranchisement for minor

misconduct heightens the need for this Court to scrutinize the state’s restoration

process and insist that it be guided by meaningful standards.

CONCLUSION

For the reasons provided above, amicus curiae requests that the Court affirm

the judgment below.

Respectfully submitted,

s/ Chiraag Bains Chiraag Bains* Demos Attorney for Amicus Curiae

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CERTIFICATE OF COMPLIANCE

Pursuant to Fed. R. App. P. 29(a)(4)(G) and Fed. R. App. 32(g)(1), the

undersigned hereby certifies that this brief complies with the type-volume

limitation of Fed. R. App. P. 32(a)(7)(B)(i) and Fed. R. App. P. 29(a)(5).

1. Exclusive of the exempted portions of the brief, as provided in Fed. R. App.

P. 32(f), the brief contains 3,047 words.

2. The brief has been prepared in proportionally spaced typeface using

Microsoft Word 2010 in 14 point Times New Roman font. As permitted by

Fed. R. App. P. 32(g), the undersigned has relied upon the word count

feature of this word processing system in preparing this certificate.

s/ Chiraag Bains Chiraag Bains* Dēmos Attorney for Amicus Curiae

* Admitted to practice law in Massachusetts; not admitted in the District of Columbia. Practice limited pursuant to DC. App. R. 49(c)(3).

June 28, 2018

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CERTIFICATE OF SERVICE

I certify that, on June 28, 2018, I electronically filed the foregoing with the

Clerk of the United States Court of Appeals for the Eleventh Circuit using the

appellate CM/ECF system. Counsel for all parties to the case are registered

CM/ECF users and will be served by the appellate CM/ECF system.

s/ Chiraag Bains Chiraag Bains* Dēmos Attorney for Amicus Curiae

* Admitted to practice law in Massachusetts; not admitted in the District of Columbia. Practice limited pursuant to DC. App. R. 49(c)(3).

June 28, 2018