405 F.3d 1214 (11th Cir. 2005), 02-14469, Johnson v. Governor of State of Florida

Docket Nº:02-14469.
Citation:405 F.3d 1214
Party Name:Thomas JOHNSON, Derrick Andre Thomas, Eric Robinson, Adam Hernandez, Kathryn Williams-Carpenter, Jau'Dohn Hicks, John Hanes, in their own right and as representatives of all ex-felon citizens of Florida, Plaintiffs-Appellants, Omali Yeshitela, Plaintiff, v. GOVERNOR OF the STATE OF FLORIDA, Jeb Bush, Secretary of the State of Florida, Katherine Har
Case Date:April 12, 2005
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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405 F.3d 1214 (11th Cir. 2005)

Thomas JOHNSON, Derrick Andre Thomas, Eric Robinson, Adam Hernandez, Kathryn Williams-Carpenter, Jau'Dohn Hicks, John Hanes, in their own right and as representatives of all ex-felon citizens of Florida, Plaintiffs-Appellants,

Omali Yeshitela, Plaintiff,


GOVERNOR OF the STATE OF FLORIDA, Jeb Bush, Secretary of the State of Florida, Katherine Harris, Charlie Crist, Robert Milligan, William Nelson, Robert Crawford, Thomas Gallagher, in their roles as members of the Clemency Board of Florida, Beverly Hill, Alachua County Election Supervisor, et al., Defendants-Appellees.

No. 02-14469.

United States Court of Appeals, Eleventh Circuit

April 12, 2005

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[Copyrighted Material Omitted]

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James E. Johnson, Debevoise & Plimpton, LLP, Jessie Allen, Deborah Goldberg, Brennan Center for Justice, New York City, for Plaintiffs-Appellants.

Charles J. Cooper, David H. Thompson, Derek L. Shaffer, Thomas B. Cotton, Hamish Hume, Cooper & Kirk, PLLC, Washington, DC, Jeffrey Paul Ehrlich, Miami, FL, Robert C. Buschel, Buschel, Carter, Schwartzreich & Yates, Michael David Cirullo, Jr., Goren, Cherof, Doody & Ezrol, P.A., Fort Lauderdale, FL, H. Ray Allen, III, Hillsborough Atty., Tampa, FL, for Defendants-Appellees.

James J. Benjamin, Jr., Nancy Chung, Akin, Gump, Strauss, Hauer & Feld, LLP, Paul A. Engelmayer, Wilmer, Cutler & Pickerung, New York City, John Russell-Cotes Cosgrove, Menlo Park, CA, Charles S. Treat, San Francisco, CA, Mark L. Gross, Clay G. Guthridge, U.S. Dept. of Justice, Washington, DC, Mark A. McCarty, Alston & Bird, LLP, Atlanta, GA, Stacey Michelle Schwartz, Fort Lauderdale, FL, for Amici Curiae.

Appeal from the United States District Court for the Southern District of Florida.


KRAVITCH, Circuit Judge:

I. Introduction

This case involves a Fourteenth Amendment Equal Protection Clause challenge and a Section 2 Voting Rights Act ("VRA") challenge to Florida's felon disenfranchisement law which provides that "[n]o person convicted of a felony ... shall be qualified to vote or hold office until restoration of civil rights or removal of disability." 1 Fla. Const. art. VI, § 4 (1968). The plaintiffs filed this class action on behalf of all Florida citizens who have been convicted of a felony and have completed all terms of their incarceration, probation, and parole but who are barred from voting under the

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state's felon disenfranchisement law. 2 The defendants are members of Florida's Clemency Board. 3

II. Procedural History and Standard of Review

After cross motions for summary judgment, the district court granted summary judgment in favor of the defendants on all claims. A divided panel of this court reversed and remanded on both the Equal Protection and VRA claims. Johnson v. Governor of State of Florida, 353 F.3d 1287 (11th Cir.2003), vacated 377 F.3d 1163. This court vacated the panel opinion and granted a rehearing en banc. Johnson, 377 F.3d at 1163-64. We now consider whether the district court erred in granting summary judgment in favor of the defendants on the plaintiffs' claims under the Equal Protection Clause of the Fourteenth Amendment and Section 2 of the Voting Rights Act.

We review a district court's grant of summary judgment de novo, "viewing the record and drawing all reasonable inferences in the light most favorable to the non-moving party." Patton v. Triad Guar. Ins. Corp., 277 F.3d 1294, 1296 (11th Cir.2002). Summary judgment is appropriate when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).

III. The Equal Protection Claim

The plaintiffs argue that Florida's felon disenfranchisement law violates the Equal Protection Clause, which prohibits a state from "deny[ing] to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1. The plaintiffs contend that racial animus motivated the adoption of Florida's criminal disenfranchisement provision in 1868 and this animus remains legally operative today, notwithstanding the fact that Florida altered and reenacted the provision in 1968.

A state's decision to permanently disenfranchise convicted felons does not, in itself, constitute an Equal Protection violation. Richardson v. Ramirez, 418 U.S. 24, 53-55, 94 S.Ct. 2655, 41 L.Ed.2d 551 (1974). The Supreme Court made this clear in Richardson, where it rejected a non-racial equal protection clause challenge to California's felon disenfranchisement law. 418 U.S. at 56, 94 S.Ct. 2655. In doing so, the Court relied on Section 2 of the Fourteenth Amendment, holding that it expressly permits states to disenfranchise convicted felons. 4 The Court was persuaded that:

[T]hose who framed and adopted the Fourteenth Amendment could not have intended to prohibit outright in § 1 of that Amendment that which was expressly exempted from the lesser sanction

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of reduced representation imposed by § 2 of the Amendment.

Id. at 43, 94 S.Ct. 2655. Of course, the Equal Protection Clause prohibits a state from using a facially neutral law to intentionally discriminate on the basis of race. Washington v. Davis, 426 U.S. 229, 239-40, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976). This includes a criminal disenfranchisement law enacted with the intent to deprive one racial group of its right to participate in the political process. Hunter v. Underwood, 471 U.S. 222, 233, 105 S.Ct. 1916, 85 L.Ed.2d 222 (1985). In light of this well-established precedent, the question here is whether the plaintiffs have alleged facts that, if true, would be sufficient to establish intentional discrimination in Florida's current disenfranchisement law.

1. Historical Background

Florida's policy of criminal disenfranchisement has a long history, tracing back well before the Civil War. 5 Florida's earliest Constitution, adopted in 1838, authorized the General Assembly to enact criminal disenfranchisement laws and in 1845, Florida's General Assembly enacted such a law. 6 Florida's 1861 and 1865 Constitutions also contained criminal disenfranchisement provisions.

There is no doubt that Florida's decision to adopt a criminal disenfranchisement law in these early Constitutions was based on a non-racial rationale. At that time, the right to vote was not extended to African-Americans, and, therefore, they could not have been the targets of any disenfranchisement law. The plaintiffs, however, point to 1868 as the critical date on which they allege Florida's disenfranchisement law became motivated by racial discrimination.

Because the plaintiffs' Equal Protection claim hinges on the 1868 criminal disenfranchisement provision, we must examine the historical context in which that provision was adopted. After the Civil War, the Reconstruction Act required Florida to ratify the Fourteenth Amendment and

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change its Constitution as a condition for readmittance to the Union. 7 In accordance with a federally mandated plan, the South was divided into military districts with Florida under the command of General John Pope. Under his supervision, both African-Americans and white delegates were elected to Florida's 1868 constitutional convention.

During the convention, a struggle for control erupted between the Radical Republicans and the Moderate Republicans. The Radical Republicans "wished to exclude native whites from state politics" and the Moderate Republicans were "opposed to the Radicals and willing to compromise with native whites." After a series of events unfolded, the Radical Republicans and Moderate Republicans each had drafted competing constitutions and both groups claimed to be the lawful convention. The Federal government supervised the process. Faced with a choice between the two constitutions, the United States Congress endorsed the Constitution drafted by the Moderate Republicans. It was subsequently ratified by the voters of Florida. Like Florida's earlier Constitutions, the 1868 Constitution contained a criminal disenfranchisement provision. 8 Thus, under federal supervision, a racially mixed delegation produced a constitution granting suffrage to men of all races.

We do not doubt that racial discrimination may have motivated certain other provisions in Florida's 1868 Constitution such as a legislative apportionment scheme that diminished representation from densely populated black counties. The existence of racial discrimination behind some provisions of Florida's 1868 Constitution does not, however, establish that racial animus motivated the criminal disenfranchisement provision, particularly given Florida's long-standing tradition of criminal disenfranchisement. Indeed, the plaintiffs' own historical expert conceded that prior to the instant case, no historian who had studied Florida's 1868 Constitution had ever contemplated that the 1868 criminal disenfranchisement provision was enacted with discriminatory intent.

The plaintiffs offer no contemporaneous evidence from the 1868 constitutional convention demonstrating that racial discrimination motivated the enactment of the 1868 disenfranchisement provision. To advance their theory, the plaintiffs rely almost exclusively 9 on a few isolated remarks 10 made after the 1868 Constitutional Convention. Although these comments reflect an unfortunate and indefensible racial

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animus in nineteenth-century Florida politics, there is no evidence that these post-convention comments referenced the 1868 disenfranchisement provision. Indeed, the record strongly indicates that these comments referenced other provisions in the 1868 Constitution, such as the legislative apportionment system. 11 In addition, the plaintiffs point to the fact that Florida rejected the...

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