Arbitrary Rights Restoration
First Amendment Challenge
In 2019, Fair Elections Center and the Kentucky Equal Justice Center joined a lawsuit challenging Kentucky’s arbitrary process for voting rights restoration for felons. The lawsuit was filed on behalf of eight former felons.
Kentucky is one of three states that deny the right to vote to all former felons until they petition for rights restoration. In 2019, Florida dropped off that list when its voting rights restoration system became non-arbitrary by virtue of a recently passed state constitutional amendment. In late 2019, Governor Andy Beshear issued an executive order restoring voting rights to individuals with certain Kentucky state felony convictions, while continuing to exclude those with non-qualifying Kentucky state felony convictions, out-of-state felony convictions, and federal felony convictions.
According to the Sentencing Project, as of 2020, Kentucky had an estimated 198,000 felons who were still disenfranchised after completing their full sentences including parole and probation, or 6% of the state’s voting-age population.
Kentucky's voting rights restoration process requires felons who have completed their full sentences and who do not qualify for restoration under Gov. Beshear’s executive order to submit an application for restoration to the Department of Corrections' Division of Probation and Parole. The Division screens the applications and forwards them to the governor’s office where the governor has unconstrained power to grant or deny applications with no rules, laws, or criteria governing these restoration determinations.
Without any rules, applicants seeking restoration are subjected to arbitrary decision-making and the risk of biased treatment, violating the 1st Amendment to the U.S. Constitution, according to the lawsuit.
The process also lacks any time limits for when the Department of Corrections or the governor must take action. This delay has created a backlog of applications in Kentucky. As of March 2018, there was a backlog of 1,459 restoration of civil rights applications.
In 2020, the district court ruled that because Gov. Beshear’s executive order cured the First Amendment violations as to some people with felony convictions, it cured them as to all Kentuckians with felony convictions, even though it excludes the plaintiffs and subjects them to the same rights restoration process as before. The plaintiffs appealed, and the U.S. Court of Appeals for the Sixth Circuit agreed that Gov. Beshear’s executive order had not cured their injury. It sent the case back to the trial court, which will now consider the parties’ cross-motions for summary judgment.
Order Dismissing Case as Moot (8.14.20)
Plaintiffs' 6th Circuit Reply Brief (6.18.21)
Gov. Beshear's Brief to the 6th Circuit (7.16.21)
6th Circuit Plaintiffs-Appellants Brief (11.21.22)
Appellants' Brief (11.21.22)
Appellee Governor Beshear's Brief (12.20.22)
Appellants' Reply Brief (1.18.23)
Sixth Circuit Panel Opinion (7.20.2023)
Wall Street Journal "Push to give felons the vote shifts to Iowa and Kentucky"