Velez’s attorneys argue he’s eligible to take Broward school board seat after all

WLRN | By Kate Payne | December 20, 2022

Rod Velez won his election for the Broward County School Board over a month ago, but he still hasn’t been sworn in, because of a felony conviction for aggravated battery in 1995.

A constitutional law expert has even asserted that if he does not take the seat by Dec. 22, it might allow Gov. Ron DeSantis to pick a new member.

But now Velez’s attorneys are arguing he is eligible to take office after all, claiming that the constitutional amendment that restored the right to vote to most Floridians with felony convictions also restores the right to hold office.

Rod Velez declined to take the oath of office during the formal swearing-in of the newly-elected Broward County School Board members on Nov. 22, saying he didn’t want to potentially commit a crime by falsely swearing that he’s eligible to hold the seat.

But in a motion filed Monday in Broward County court in a case brought by Velez’s competitor Marie Murray Martin, attorneys for Velez argue he is eligible.

Their reasoning? That the right to vote and the right to hold office are “linked” as “two aspects of a single political right”.

In a 50-plus page filing, the attorneys quote case law and historical texts ranging from The Federalist Papers to a speech by women’s suffrage activist Susan B. Anthony.

“This marriage of the right to vote and the right to hold office — collectively, voting rights — dates back to the founding of this country,” the filing reads.

The attorneys reason that when voters approved Amendment 4 in 2018 to restore the voting rights of most Floridians with a felony record, they were by extension also granting them the right to hold office.

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The filing came as the Florida Department of Law Enforcement reviews a complaint about whether Velez may have committed a crime when he signed his candidate qualifying paperwork — attesting he was eligible to hold office. According to the Sun Sentinel, the Broward County State Attorney’s Office is also investigating.

Robert Jarvis, who teaches constitutional law at Nova Southeastern University’s Shepard Broad College of Law, says the argument from Velez’s legal team doesn’t hold water.

“They get an A for creative writing,” Jarvis said, “and they get an F for constitutional interpretation.”

According to Jarvis, the attorneys’ reasoning contradicts the campaign messages of proponents of Amendment 4, as well as a plain reading of the measure itself and the Florida Constitution.

“What Velez’s lawyers are trying to do now is rewrite history and completely ignore both what was written but also what was spoken at the time,” Jarvis said.

“The Florida Constitution before Amendment 4 said, ‘the right to vote or the right to hold office’. And it still says that. And it uses the word ‘or’ and that makes it very clear that there are two distinct rights — one is the right to vote, one is the right to hold office,” he added.

Under a state law that has its roots in a racist legacy of barring Black residents from participating in electoral democracy, Floridians with felony convictions are banned from voting, holding office, sitting on a jury or owning a firearm, unless their rights have been restored.

Since the passage of Amendment 4, the process of restoring voting rights has been streamlined. But returning citizens have to apply to get their other civil rights back, according to rules issued by the Board of Executive Clemency.

Velez says he has submitted an application to the agency, which according to the board’s rules should be approved “automatically upon processing”.

A public records request filed by WLRN for documents related to Velez’s case was denied; clemency records are confidential unless the governor approves their release.

Velez did not respond to a request for comment from WLRN by publishing time.

According to Jarvis’s interpretation of the Florida Constitution, if Velez isn’t sworn in by Dec. 22 — one month after the other board members took office — his seat can be considered vacant and Gov. Ron DeSantis can appoint his replacement.

At a recent meeting of the Broward County School Board, Velez voiced his frustrations to the people he hopes will soon be his colleagues.

“Just fix it! Get it done!” he told the board during a public comment period. “Get me up there! Let’s get this done!”

Velez’s attorneys are asking a judge to dismiss the legal challenge against his eligibility so that he can take office.