Election Law

This Judge Absolutely Unloads On The Government's 'Histrionics'

The defendants 'stamp their feet and wail,' but the judge isn't having any of it.

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UPDATE (4/26/2018): The benchslapper has gotten smacked down himself. The Eleventh Circuit, after concluding that the government “has demonstrated a substantial likelihood of success on the merits,” has stayed the district court’s injunctions pending final resolution of the appeal.]

The permanent disenfranchisement of convicted felons is an ongoing assault on democracy that, by and large, takes the racial disparities in the criminal justice system and extends them into the electoral system. In Florida, one of the few remaining states with a permanent ban, more than 1.5 million Floridians can’t vote because of a prior conviction, including 20 percent of voting-age African Americans. It all adds up to the sort of serious threat to democracy that only makes sense when you remember that Florida is basically Mississippi with Disneyworld and Miami Beach.

In recent years, Florida’s state government decided to address this disenfranchisement and concocted a plan vesting the decision to restore an individual’s voting rights in the hands of highly ranked elected state officials. In other words, Rick Scott gets to decide if a felon gets to vote again. If you don’t suspect this ends with a lot of health care fraudsters going back to the polls and a lot of poor marijuana users remaining on the sidelines, you’re not trying hard enough.

That’s basically why Judge Mark Walker struck down the government’s plan a couple months back and ordered the state to return to the drawing board to draft a plan that doesn’t pose such serious First and Fourteenth Amendment concerns.

In a move that radically underscored the government’s bad faith, they refused to craft new rules and instead filed for a stay pending appeal… so they could get another election in under this system.

Judge Mark Walker of the Northern District of Florida is having none of this.

None.

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In a blistering opinion, Judge Walker eviscerated the government’s lawyers for their antics. This isn’t Judge Walker’s first foray into the art of the Benchslap, having ripped a lawyer over a “frivolous” motion last year, but in this one, he raises his game to a new level.

Rather than comply with the requirements of the United States Constitution, Defendants continue to insist they can do whatever they want with hundreds of thousands of Floridians’ voting rights and absolutely zero standards. They ask this Court to stay its prior orders. ECF No. 163.

No.

So begins a ruthless takedown of a petulant defense team seemingly more interested in complaining about judicial activism and testing cockamamie theories they picked up from FedSoc panels than addressing the constitutional issues in the case:

The stay motion is littered with other astounding arguments that fail to outline substantial likelihood on the merits or irreparable harm to any party. For example, this Court is left scratching its head when considering how its order directing Defendants to comply with the Federal Constitution impinges on state sovereignty. Id. at 22. This extraordinary argument is rooted in neither common sense nor reality. As this Court has made clear again and again, Defendants shall be the body to promulgate constitutional rules, not this Court.

Perhaps the most damning line comes on the second page:

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Instead, Defendants embark on a fit of histrionics atypical for unsuccessful parties before this Court.

As Judge Walker concludes, “[t]his Court does not play games.”

One would hope the defense team is appropriately shamed by this. My guess is they aren’t.

(Check out the full opinion on the next page.)

Earlier: Federal Judge Benchslaps Lawyer For ‘Frivolous,’ ‘Smoke And Mirrors’ Recusal Motion

HeadshotJoe Patrice is an editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news.

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