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The 11th U.S. Circuit Court of Appeals has agreed to a full court review of a class action lawsuit filed by more than 600,000 Florida ex-convicts challenging the constitutionality of a state law that prohibits felons from voting even after they have completed their sentences. The court’s decision last week to rehear Thomas Johnson v. Jeb Bush en banc vacates the December 2003 decision of a three-judge panel, which ruled 2-1 that the class could proceed to trial. The 11th Circuit has 12 judges. In September 2001, the plaintiffs filed their action in U.S. District Court in Miami, alleging that Florida’s felon voter disenfranchisement laws were racially discriminatory and violated their constitutional right to equal protection. The class alleged that when Florida legislators first passed the amendment in 1868, it was part of an effort to keep former slaves from voting. The law was readopted in 1968 when Florida ratified a new constitution. The legislative committee that reviewed the law made minor edits but essentially left the substance unchanged. Transcripts from the committee meetings show the legislators discussed the rewording of the law but didn’t debate anything related to its purpose or possible racial implications. The class members maintain that the disenfranchisement law continues to have a greater impact on black citizens because they are 50 percent more likely than nonblacks to have felony convictions. A law that impacts one race more heavily than any others violates the 14th Amendment right to equal protection, the plaintiffs say. In July 2002, U.S. District Judge James Lawrence King in Miami dismissed the case on summary judgment. King ruled that there was historical evidence that the law was racially motivated when it was first established but no evidence that the law was re-enacted in 1968 to discriminate against blacks. Because the Legislature had re-enacted the law under new circumstances, it had been “cleansed of any invidious discriminatory purpose that may have prompted its inception,” King wrote. But a three-judge panel of the 11th Circuit in Miami overturned King’s ruling in December 2003. Writing for the majority, Judge Rosemary Barkett said it was up to the state to prove that the revised law had been purged of its original discriminatory intent. Nothing in the legislative committee transcripts showed that the Legislature re-adopted the law for new reasons, Barkett said. Judge John Fullam, a visiting federal district judge from Pennsylvania, concurred. Judge Phyllis Kravitch dissented, saying Florida had a valid public policy reason for keeping felons from voting and that there was no evidence that the legislators were racially motivated during the law’s re-adoption. But Gov. Jeb Bush filed a motion for rehearing of the 11th Circuit panel’s decision en banc, which was granted last week. The court has not yet determined whether it will hold oral arguments or issue an en banc opinion based on the briefs.

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