The case, Deric Lostutter v. The Commonwealth of Kentucky, argues the current system, which grants the governor total discretion in granting voting rights to people who have felony convictions, is a violation of the First Amendment.
Shortly after his inauguration in December 2019, Gov. Andy Beshear issued an executive order to restore voting rights to most people with in-state nonviolent felony convictions. The order did not include all felonies nor did it cover those with out-of-state or federal convictions.
Previous Gov. Matt Bevin had retracted his predecessor’s voting rights restoration order, which granted automatic voting rights to some people with convictions. Instead, Bevin required people with felony convictions apply to his office to have their rights individually restored, at his discretion.
Although Beshear’s order automatically restored the rights of an estimated 140,000 people, he maintained a similar application system to Bevin’s. The Lostutter v. Kentucky case was originally filed against Bevin’s administration in 2018.
Jon Sherman, the plaintiffs’ lawyer and litigation director for the Fair Elections Center, a voting rights and election reform organization, said several of his clients were not covered under Beshear’s order.
“This isn't a partisan issue. Andy Beshear is a defendant because, like Matt Bevin, he has also refused to implement a neutral, non-arbitrary process for restoring people's voting rights,” Sherman said.
In court Thursday, the state’s lawyers said the governor does not have set criteria for approving the restoration applications he receives. Taylor Payne, who represents the state and Beshear, said “thousands” of applications have come across the governor’s desk and the primary criteria for acceptance is worthiness.
“Under Kentucky law [the criteria] is left to each governor who holds the office to ultimately subjectively determine who they think is worthy,” Payne said.
Payne argued that because the Kentucky Constitution says people with felony convictions have been permanently stripped of their right to vote, they no longer have the right to sue over the restoration of that right. Kentucky, Virginia and Iowa are the only three states that permanently bar people with felony convictions from voting.
“Especially with the right to vote, these convicted felons have lost that right. [The plaintiffs] no longer have an interest in their right to vote,” Payne said in court. “This Court and the Supreme Court have said once you are constitutionally disenfranchised … there is no fundamental right left to assert by the plaintiffs.”
The trio of judges questioned whether the “black box system” under which the applications are reviewed could be unfair to applicants. They also asked why applications seem to sit in limbo for years at a time — not denied and not accepted.
Three of the plaintiffs in the case previously applied to the governor for a restoration of their voting rights. Two have not received a response after more than a year of waiting and another recently learned they would be able to vote again.
“[Beshear] could craft a different non-arbitrary system,” said Sherman, the plaintiffs’ lawyer. “Instead, he and his lawyers are in court fighting for sole and unchecked authority to grant or deny licenses to vote to the disenfranchised.”
Sherman said the goal of the lawsuit is to force Beshear to create clear, automatic rules for who will receive the executive partial pardon and regain their voting rights — rather than using his discretionary power.
Racial impacts
Nicole Porter, the senior director of advocacy at the Sentencing Project, said discretion in re-enfranchisement can lead to a number of problems, including reinforcing racial disparities. In Kentucky, the disenfranchisement of people with felony convictions already disproportionately affects Black people. That’s true in other states, as well.
“Anytime when there's discretion involved, it can certainly reinforce racial disparities that are prevalent in the criminal legal system, from the point of arrest to the point of post conviction collateral consequences, like voting rights,” Porter said. “Kentucky’s Black residents are significantly impacted by disenfranchising policies. And it starts because they're over-policed.”
More than one in 10 Black Kentuckians have lost their right to vote, according to the League of Women Voters. Overall, less than 5% of Kentuckians are barred from voting, the League’s report said.
Porter said the loss of voting rights due to a felony conviction can be traced back to before the country’s founding, but has roots in Reconstruction era racism.
“Since the Civil War when southern states reconstituted themselves, felony was certainly used as a proxy for blackness to exclude Black residents, Black men from the electorate,” Porter said.
Porter said the Sentencing Project has partnered with the Kentucky League of Women Voters to push to get a constitutional amendment on the ballot to offer automatic restoration of voting rights to people who complete their sentences. Despite years of trying, they have been unsuccessful, Porter said.
Continuing legislation
The district court initially dismissed the lawsuit for lack of standing. The judge decided the injury to the plaintiffs, multiple people who were denied the right to vote because of a felony conviction, was too abstract.
“The only injury Plaintiffs have alleged is that they are harmed by the mere possibility of having a restoration application denied by the Governor,” U.S. District Judge Karen Caldwell ruled last July.
The case is now before an appellate panel of three circuit court judges.
Deric Lostutter, the lead plaintiff in the lawsuit and a paralegal, said he has a federal felony conviction for violating an anti-hacking law. But even though he is convicted of a nonviolent felony, he was not partially pardoned under Beshear’s executive order because it was federal.
“Our democracy thrives on the principle of equal representation. Every citizen after serving their time and paying their dues to society deserves the right to participate in the democratic process,” Lostutter said. “Arbitrary disenfranchisement undermines the efforts of rehabilitation and social integration and is a blemish on the face of our democracy.”
The U.S. Sixth Circuit Court is expected to issue a ruling on the case in the coming weeks. If the circuit judges reject the suit, the plaintiffs will have the option to appeal to go before all of the active Sixth Circuit judges rather than a three-judge panel. The next stop would be the U.S. Supreme Court.
