Lawsuit Takes Aim At Kentucky's Harsh Policy For Restoring Voting Rights To Former Felons

In 2017, Stephon Doné Harbin submitted an application to Kentucky Gov. Matt Bevin (R) get his right to vote back. Even though Harbin had been released from prison in 2003, Kentucky permanently bars people with felony convictions from voting unless they have completed all terms of their sentence and the governor grants them the right to vote.

Harbin ran into bureaucracy. His application was rejected because it hadn’t been signed by a notary or his parole officer, according to court papers . He got the proper signature and then tried again. In April, he hit another hurdle. The state said he needed to prove he had paid an outstanding traffic fine. So Harbin went to traffic court in Louisville during his lunch break one day, waited in line for about an hour and got proof that he paid. He submitted his application to Bevin a third time and has been waiting to hear back ever since.

Harbin, a 47-year-old accountant, said he’s ready to be a full citizen like he was before he went to prison.

“Somebody takes something from you, you definitely want it back,” Harbin told HuffPost. “It doesn’t make sense to me that you can be barred from something for life. They’re just throwing us away. ‘You failed the first time and we’re done with you.’”

Now, Harbin and three other people with felony convictions are suing Bevin in federal court to try to change the way Kentucky restores voting rights. They say the governor has “unfettered discretion” to decide who gets to vote in the state. The fact that the governor doesn’t have to follow any guidelines and can leave applications pending indefinitely violates their First Amendment rights, they argue.

“Officials with unfettered authority to selectively permit felons to vote may grant or deny restoration applications on pretextual grounds while secretly basing their decision on information or speculation as to the applicant’s political affiliation or views, the applicant’s race, faith, wealth, or other characteristics,” lawyers for the four men wrote in their complaint , which was filed in U.S. District Court for the Eastern District of Kentucky.

The suit doesn’t challenge the state’s ability to strip felons of their voting rights, only the process for restoring them.

Bevin spokeswoman Elizabeth Goss Kuhn said in a statement that the governor was abiding by a process outlined in the Kentucky constitution. 

“This lawsuit seeks to weaponize the U.S. Constitution to enable federal courts to upend the state constitutional process that Kentucky has followed for more than a century in restoring felons’ right to vote,” she said in a statement. “Gov. Bevin is committed to the state constitutional process and has restored the right to vote to more than a thousand felons since taking office. The Governor intends to immediately seek dismissal of this lawsuit and to continue restoring felons’ right to vote through the process established in Kentucky’s Constitution.”

The case comes amid increased scrutiny on the longstanding practice of taking away the voting rights of people with felony convictions in the U.S. In November, Florida voters approved a constitutional amendment to do away with the state’s policy of permanent disenfranchisement, a change that could affect up to 1.4 million people. About 4.7 million people in the United States remain disenfranchised because of a felony conviction, according to a 2016 estimate by The Sentencing Project, a non-profit organization focused on criminal justice issues.

Kentucky, Iowa and Virginia are the only three states in the country that permanently strip people with felonies of the right to vote, although Democratic governors in Virginia have moved aggressively in recent years to restore the voting rights of former felons through executive order.

Since 1891 , Kentucky’s constitution has permanently banned felons from voting unless the governor chooses to restore their voting rights. More than 9 percent of the state’s population was disenfranchised because of a felony conviction as of 2016, the most recent number for which The Sentencing Project has an estimate. That year, there were 312,046 disenfranchised felons in Kentucky, 242,987 of whom had completed their sentence, according to the project’s estimate.

As he left office in 2015, former Gov. Steve Beshear (D) issued an executive order automatically restoring voting rights to 140,000 people with nonviolent felony records. Bevin rescinded that order shortly after taking office, and in his first year as governor did not grant a single application to restore voting rights. In the complaint, lawyers for the plaintiffs said Bevin had granted just 980 applications since his first year in office.

Lawyers representing the plaintiffs accused Bevin of choosing to leave applications for restoration of voting rights in pending status instead of denying them. Ben Carter, an attorney at the Kentucky Equal Justice Center representing the plaintiffs, told HuffPost it was a lot of work for applicants to gather all of the required information about their criminal history, but the governor had no obligation to even review their application.

“The fact that people’s applications are just left in limbo for so long is a real problem. More than anything, that’s indicative to me of how arbitrary this process really is,” Carter said. “It shows that the governor does not even feel constrained to act in any way, whether it’s a thumbs up or a thumbs down. Not only is the governor’s decision arbitrary, but there’s no process in place that would even force the governor to make a decision.”

The suit was originally brought in October by Deric Lostutter, who filed the case on his own without attorneys. Lostutter was convicted of a felony in 2017 in connection to hacking a fan page for athletics at Steubenville High School after two players on the high school football team were accused of raping a 16 year-old-girl. The Fair Elections Center and Kentucky Equal Justice Center intervened to represent Lostutter and the three additional plaintiffs last week.

“My 9th great-grandfather fought in the American revolution to give us these rights and he’d be turning over in his grave right now if he knew that his grandson could not vote,” Lostutter told HuffPost.

Fair Elections Center brought a similar suit in Florida in 2017 challenging the state’s method for restoring voting rights. Judge Mark Walker of the U.S. District Court for the Northern District of Florida agreed that the system was arbitrary and ordered the state to come up with a new system. The state appealed to the U.S. Court of Appeals for the 11th Circuit, which was more skeptical of the argument. Both the plaintiffs and the state agreed the case was essentially moot after Florida voters passed the constitutional amendment in November.

Harbin, who has never voted, said he just wants Bevin’s office to make a decision on his application.

“I’m not going to give up,” he said. “I’m going to keep trying.”

This story has been updated with comment from Bevin’s office and Harbin.

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Clarification: A previous version of this story referred to the Fair Elections Center by its previous name, the Fair Elections Legal Network.