KY case aiming to restore voting rights to all former felons meets to get ruling

Published 8:52 am Monday, July 10, 2023

Deric Lostutter served two years in prison after violating a federal anti-hacking law and lying to an FBI agent in 2012.

But now, nearly a decade after completing his felony sentence, Lostutter remains unable to vote in Kentucky.

Instead, he’s in his fifth year of a court case attempting to restore voting rights to all former felons in Kentucky. On Thursday, the court heard oral arguments in the case and agreed to ruled on the merits of his case, after a long and winding journey through the courts.

Kentucky is one of 11 states that does not either automatically restore voting rights for all those convicted of felonies after they complete their sentences or never take away the right to vote at all.

According to the Sentencing Project, 4.5% of Kentucky’s voting age population is disenfranchised due to a felony conviction, compared to a 2 percent national average.

As of 2022, 86% of those disenfranchised in Kentucky due to a felony conviction have either completed their sentence or are on probation or parole, while the other 14% are still incarcerated.

In 2015, former Kentucky Gov. Steve Beshear used an executive order to restore voting rights to former felons convicted of non-violent offenses in Kentucky after they completed their sentences and paid restitution.

Later that year, Gov. Matt Bevin was elected and immediately reversed the order.

Instead, during the Bevin administration, former felons had to submit an application to the governor’s office asking for a “partial pardon” to restore their voting rights. The governor then had full discretion in deciding whether to re-enfranchise former felony offenders.

During his first year in office, Bevin denied every application that arrived on his desk.

In 2018, Lostutter sued Bevin over this policy.

In Lostutter v. Commonwealth of Kentucky, filed in the U.S. District Court Eastern District of Kentucky, the plaintiffs argued that the policy of absolute discretion was unconstitutional.

Without a set of objective criteria to decide who would be granted restoration of their right to vote, they argued that the governor could potentially discriminate against former felons based on any number of subjective, biased criteria that violated the First Amendment’s ban on viewpoint discrimination.

Stephon Harbin, who was formerly a plaintiff in the case before his right to vote was restored in 2020, said that this “absolute power corrupts absolutely.”

“I do believe that absolute power has the potential to reveal a person’s true character and enables them to exercise an agenda based on pre-existing beliefs and political interests and personal biases rather than the will of the people or the rule of law,” Harbin said.

Shortly after taking office, Gov. Andy Beshear followed in his father’s footsteps. On Dec. 12, 2019, he issued Executive Order 2019-003, which automatically restored the right to vote to 147,000 former felons.

However, the executive order did not extend to former felons convicted of treason, bribery in an election or violent offenses like assault or murder. It also did not extend to those convicted of felonies in federal court or in other states who live in Kentucky.

Members of those groups must still go through the application process, over which the governor retains complete discretion.

According to a report by the Kentucky League of Women Voters, the executive order left out 178,000 former felons, including a disproportional 15% of voting age Black Kentuckians.

After Beshear’s executive order, in March 2020, the court dismissed Lostutter’s case as moot.

“By establishing non-arbitrary criteria for the restoration of voting rights, Governor Beshear has remedied the harm asserted in the operative complaint,” the opinion stated.

Lostutter and the two other plaintiffs currently in the case, Robert Langdon and Bonafacio Aleman, were not satisfied.

Lostutter was convicted of a federal felony and Langdon was convicted of second degree assault, so they were not included in the executive order’s restoration of voting rights.

In August 2020, they filed a motion for the court to reconsider the case, since the governor still had discretion over applications for those who didn’t meet the executive order’s criteria.

In 2022, the court granted summary judgment in favor of the Commonwealth of Kentucky, but an appeal to the U.S. Court of Appeals in the 6th District reversed that ruling. Now, the court has decided that the case has merit, and will make a ruling in the future.

Langdon and Aleman both have pending applications, submitted several years ago. Jon Sherman, lead counsel in the case and Fair Elections Center litigation director, said they are not alone.

“I’ve been told no application has been granted since 2021,” Sherman said. “Many applications have been filed since then. As the governor’s council said today, there are thousands pending, and those thousands of pending applications have had no action.”

Gov. Beshear’s office was unable to supply the official number of pending applications before the time of publication.

“Governor Beshear’s counsel said that the standard for deciding voting rights restoration applications fates is whether the governor deems the applicant ‘worthy,’ ” Sherman said. “When pressed by the court to define worthiness, Governor Beshear’s counsel could not and did not.”

Lostutter has not applied, a fact which the defendants in the case used to argue that he lacks standing in the case.

Judges aren’t the only ones who can fix this issue, said Ben Carter, Kentucky Equal Justice Center senior litigation and advocacy counsel.

Gov. Beshear could issue another executive order expanding the restoration of voting rights to all former felons today, he said.

Or, for a permanent solution, the Kentucky legislature could add a constitutional amendment to the ballot in the next election, letting Kentuckians decide whether  to restore voting rights.

Carter said that re-enfranchisement is more popular than politicians may think.

“I think there’s a misperception from people in power, both Democrat and Republican, that this issue is politically toxic,” Carter said. “This is a legacy of our tough on crime, war on drugs practices of the ’80s and ’90s that we recognize didn’t make people safer and didn’t improve people’s lives and just led to over incarceration of our friends and neighbors.”

According to a national survey, 50% of voters support a law restoring the right to vote for citizens with felony convictions. Carter believes that if the issue was on the ballot, it would pass.

“Not just with the support of Democratic voters, not just with the support of Republican voters,” he said. “This, across party, regardless of party, is a popular notion.”