LEXINGTON, KY (June 23, 2023) – Following oral arguments at the U.S. Court of Appeals for the Sixth Circuit Thursday afternoon, voting rights lawyers from Fair Elections Center and Kentucky Equal Justice Center, held a press call featuring former and current plaintiffs – disenfranchised Kentuckians – to discuss Lostutter v. Kentucky, a lawsuit against Kentucky Governor Andy Beshear challenging the state’s arbitrary voting rights restoration system on behalf of all Kentuckians with any out-of-state convictions and any federal convictions.
During oral arguments, Governor Beshear’s counsel said that his client’s standard for deciding on each Kentuckian’s voting rights restoration is whether they are deemed “worthy.” Arbitrarily bestowing licenses to vote is a clear violation of the First Amendment. When pressed by the court to define “worthiness,” Governor Beshear’s counsel could not. When asked whether Governor Beshear uses any criteria to make these decisions, his attorney said, “No.”
Kentucky is one of the very few states left in the nation where voting rights restoration is left to the discretion and whims of government officials. Under the current system, Kentuckians who have served sentences for past felony convictions must individually petition the Governor, giving Beshear sole and absolute power over who can and cannot regain the right to vote on a case-by-case basis. Fair Elections Center and Kentucky Equal Justice Center’s lawsuit, filed in 2019 against former Governor Matt Bevin, argues that without any rules and criteria, applicants seeking restoration are subject to arbitrary decision-making and the risk of biased treatment, violating the First Amendment of the United States Constitution.
“For 85 years, the Supreme Court of the United States has prohibited laws that give government officials absolute discretion to grant or deny licenses to engage in First Amendment protected activities, which voting is,” said Jon Sherman, Senior Counsel at Fair Elections Center and leading counsel in the lawsuit. “An arbitrary licensing scheme, such as Kentucky’s, creates the risk of undetectable viewpoint discrimination. Governor Beshear may review the prior political expression of restoration applications, and nothing in Kentucky law prevents him from factoring that in and denying an application because of that person’s likely viewpoints and votes… Not only is Kentucky’s restoration system clearly unconstitutional, but it is deeply un-American to force people to beg for their right to vote and have one government official evaluate their worthiness to regain their vote.”
“Today, we heard Gov. Beshear’s counsel tell the Court that the Governor had not made a decision on Bonifacio Aleman or Rob Langdon [plaintiff]’s applications because thousands of other Kentuckians had applied for restoration of their voting rights,” said Ben Carter, Senior Litigation at the Kentucky Equal Justice Center and co-counsel in the lawsuit. “Judges aren't the only people with the power to fix this problem. Governor Beshear or the legislature could act to protect people hoping to vote again from arbitrary state action.”
“Despite serving my time, I, like many others with federal felony convictions in Kentucky, still face indefinite revocation of my voting rights,” said Deric Lostutter, a disenfranchised Kentuckian and lead plaintiff in the case. “No government official should have the power to pick and choose who gets to vote… Through reform, we can ensure a fair, neutral, and transparent process that restores the voting rights of those with past felony convictions. Let us not stand as one of the very last states in this nation denying the basic right of democratic participation to our fellow citizens.”
“When I applied to have my voting rights restored, it was a confusing process and my application was ultimately denied,” said Bonifacio Aleman, a disenfranchised Kentuckian and plaintiff in the case. “Right now, Kentuckians who apply to have their rights restored have no way of knowing whether they will be approved or denied because there isn’t an objective set of criteria in place. There isn’t even a specified time limit for when we can expect to even hear back on whether we were approved or denied. We shouldn’t have to rely on the good will of the governor or any other official when it comes to being allowed a full place in the democratic process. We need a clear path forward for people like me who have paid their debt to society and want to participate as returning citizens.”
“For years after I served my sentence, I was stuck on the sidelines of our political system because of my record, with no way to have my rights restored...” said Stephon Harbin, a former plaintiff in the case who has since had his voting rights restored. “This is not about politics, and I personally refuse to be pigeonholed to any political party. This is about fairness, transparency and ensuring that everyone knows what they need to do to regain their right to vote after completing a sentence for a felony conviction and re-entering society. Until a clear, objective process for restoring voting rights is written and established in the law of the land in Kentucky, we and so many like us will continue to be subject to the whims and will of individual politicians whose hearts and minds do not always necessarily serve our best interest.”
Next up in the lawsuit is a pending decision from the U.S. Court of Appeals for the Sixth Circuit.
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Fair Elections Center is a national, nonpartisan voting rights and election reform organization based in Washington, D.C. using litigation, public education and advocacy to remove barriers to registration and voting, particularly those disenfranchising underrepresented and marginalized communities.
Kentucky Equal Justice Center is a public interest advocacy organization working to promote equal justice for all residents of the Commonwealth by serving as an advocate for low income and other vulnerable members of society.