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Stuck In An ‘Arbitrary’ Process To Restore Voting Rights

By Anoa Changa | NewsOne, August 30, 2021

North Carolina recently restored voting rights for people formerly incarcerated for a felony, leaving advocates to wonder if Kentucky might be next. Two pending lawsuits claim Kentucky maintains a tiered process of restoring voting rights.

A Jim Crow relic, felony disenfranchisement disproportionately impacts Black people. After assuming office in 2019, Gov. Andy Beshear issued an executive order restoring voting rights to many, but not all, those formerly incarcerated for a felony.

Registering to vote and casting one’s ballot is an important part of full citizenship. For some formerly incarcerated people in states like Kentucky, restoring the right to vote can be complex.

Working alongside the Kentucky Equal Justice Center, the Fair Elections Center has improved access to the ballot for all Kentuckians. According to Jon Sherman, Litigation Director, and Senior Counsel at the Fair Elections Center, states govern their own standards for restoring voting rights.

“The overwhelming majority of the country has moved to has always had or has moved to a non-discretionary restoration system,” Sherman explained. “Even if you’ve been restored in another state, you would have to be restored in Kentucky by operation of the executive order or by a discretionary grant from the government.”

Turning to the pending litigation, Sherman told NewsOne the stakes are high in both cases. The state court lawsuit challenges Beshear’s decision to invalidate pending rights restoration applications filed before taking office.

“Governor Beshear is taking the position that anyone who applied to the Office of the Governor for voting rights restoration during Governor Matt Bevin — his predecessor’s term — all of those applications were implicitly denied at the end of Governor Bevin’s term,” Sherman explained.

According to Sherman, felony offenses not covered by an executive order fall within the governor’s sole discretion to approve or deny a request. He said that by law, each request requires a decision, not blanket denial.

“Now, Governor Bevin took no action on these roughly 900 applications,” continued Sherman. “And he gave no notice to folks that their applications have been granted or denied or anything.”

Without notice, people might not know they need to apply again. Complicating matters, some applications are missing.

“As far as we’ve been told, it seems that hundreds of these applications have gone missing,” Sherman said. “There’s no record of these applications, including our client Rick Petro, whose application is no longer on file with the governor’s office.”

Beyond the applications left in limbo, the Fair Elections Center continues to press forward with federal litigation involving the thousands of potential voters left out of the governor’s 2019 executive order. Arguing the process creates an arbitrary system of restoring voting rights, Sherman says that if you can’t arbitrarily disenfranchise people, then you can’t arbitrarily re-enfranchise them.

A report from the League of Women Voters showed that over 190,000 Kentucky residents remain disenfranchised. The group further estimated that over 15 percent of Black voting-age people were disenfranchised.

“If a state had a system of arbitrarily giving people the right to vote in the first instance, that would obviously be unconstitutional,” Sherman explained. “It violates the First Amendment violate, it violates the 14th Amendment’s equal protection clause. You couldn’t have a governor arbitrarily hand out licenses to vote. You also couldn’t have a governor or any part of the state government arbitrarily disenfranchise people.”

He shared that the purpose of the federal lawsuit is to get the court to order the governor to adopt a system that is not discretionary or arbitrary in the restoration of voting rights to those formerly incarcerated for a felony. Most people don’t think of voting rights when they think of the First Amendment, but Sherman says it does apply.

“The Supreme Court has said when your first amendment rights are implicated — and First Amendment protects the right to vote — the government cannot be given absolute discretion or control to grant a license or permit to engage in that first amendment right,” Sherman continued.

Sherman recognizes the good done with the governor’s executive order. But it doesn’t give the governor a pass from taking further action.

“Governor Beshear did a ton of good with his executive order,” concluded Sherman. “But he didn’t get a pass on continuing to violate the constitution as to the balance of everyone else.”

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