Two tiers: voting rights restoration in Florida

Layer 1, the record

What voters passed

Amendment 4 (2018) was a citizen initiative, sponsored by Floridians for a Fair Democracy as the Second Chances campaign, led by Desmond Meade and the Florida Rights Restoration Coalition with drafting help from the Brennan Center. The campaign announced on January 23, 2018 that it had passed the 766,200-signature threshold. On November 6, 2018, 64.55 percent of voters approved it, clearing the 60 percent bar.

It automatically restored voting rights to as many as 1.4 to 1.5 million Floridians with felony convictions who had completed all terms of sentence, including parole and probation, excluding murder and felony sexual offenses. It took effect on January 8, 2019.

What it replaced was permanent disenfranchisement absent an act of clemency. By 2016 an estimated 1,686,000 Floridians could not vote because of a felony conviction, including more than one in five of the state's Black voting-age population.

The redefinition

On June 28, 2019, the governor signed SB 7066, which defined "all terms of sentence" to include payment of every conviction-related legal financial obligation: restitution, fines, fees, and costs. The phrase voters had approved now carried a price.

DeSantis asked the Florida Supreme Court for an advisory opinion on whether that reading was correct. On January 16, 2020, the court agreed with it.

Pay to vote

There is no central system in Florida for determining what a person owes. A returning citizen who wants to know whether they are eligible has no single office to ask and no single record to consult.

Judge Robert Hinkle found it unconstitutional to bar a voter whose amount owed cannot be determined with diligence. Estimates offered in the litigation suggested that resolving the determinations then pending would take elections officials years. A study by the Legislature's own research office, OPPAGA, documented how much difficulty the courts have collecting these fines and fees at all. The Florida Rights Restoration Coalition later dropped a related suit after the state agreed to develop rules for issuing advisory opinions on eligibility.

University of Florida political scientist Daniel Smith, whose research was introduced as evidence at trial, found that at least 774,000 Floridians were ineligible because of outstanding legal financial obligations. Smith separately estimated that 79 percent of people who had completed their sentences owed at least $500.

Smith also found little evidence that restoring these voters would help Democrats more than Republicans, noting that the majority of those with unpaid obligations are white. That finding belongs here for the same reason the rest does: it is what the evidence showed.

The courts

Five federal suits filed in June and July 2019 were consolidated as Jones v. DeSantis in the Northern District of Florida. Chief Judge Mark Walker recused on July 17, 2019, and the case went to Judge Hinkle, who issued a preliminary injunction that October.

After a trial conducted by phone beginning April 27, 2020, Hinkle ruled on May 24, 2020, in a 125-page opinion, that SB 7066 created an unconstitutional pay-to-vote system as applied to people genuinely unable to pay, or unable to determine what they owed.

On July 1, 2020, the Eleventh Circuit granted initial hearing en banc and stayed that injunction without explanation. The Supreme Court declined to lift the stay, over a dissent by Justices Sotomayor, Ginsburg, and Kagan. On September 11, 2020, the en banc court reversed, 6 to 4, in an opinion by Chief Judge William Pryor, holding that the scheme violated neither the Equal Protection Clause, nor the Twenty-Fourth Amendment, nor due process, and was not void for vagueness.

Before that ruling, plaintiffs had moved to disqualify Judges Barbara Lagoa and Robert Luck, both of whom had sat on the Florida Supreme Court during the related advisory proceeding, and both of whom had told the Senate during confirmation that they would recuse from cases in which they had previously played a role. What became of that motion is not established here.

Paying strangers' debts

The Florida Rights Restoration Coalition ran a fund to pay off other people's court debts. Michael Bloomberg raised or contributed $16 million to it.

In Hillsborough County the mechanics were concrete. The clerk's office identified 841 eligible people and lawfully forgave 40 percent of their individual debts. The coalition paid the remaining $771,353, which cleared all 841 to register.

Florida's attorney general then sent a letter to the FBI and the Florida Department of Law Enforcement requesting an investigation of the Bloomberg-linked effort. The ACLU's Julie Ebenstein noted that the state's own position in the litigation had been that third parties could pay. What the requested investigation produced, if anything, is not established here.

The election police

SB 524, passed in 2022, created the Office of Election Crimes and Security, with a staff of 15 and up to 10 assigned officers from the Florida Department of Law Enforcement. It became operational on July 1, 2022.

On August 18, 2022, DeSantis announced 20 arrests for voting in 2020 and described the action as an "opening salvo." All 20 of those arrested had convictions for murder or felony sexual offenses, the two categories Amendment 4 (2018) excludes.

Reporting and body camera footage established that many of the people arrested had received voter registration cards from election officials and believed they were eligible to vote. "I voted, but I ain't commit no fraud," Romona Oliver said as she was arrested.

State law assigns the Department of State the duty to identify registrants with disqualifying convictions and to notify county supervisors of elections. Supervisors in the counties where the arrests happened said the state had not informed them. The charges carried up to five years in prison and a $5,000 fine.

The outcomes were mixed. At least three cases were dismissed on the grounds that the statewide prosecutor lacked jurisdiction, and the state appealed. Oliver pleaded no contest, receiving no prison time and no fine, and her false-affirmation count was dismissed. As of April 2024, most of the cases had resolved, with a handful still moving through state and appellate courts on the same jurisdictional argument.

Every charge described here is an allegation except where a plea or conviction is noted. None of these people has been shown to have known they were ineligible.

Two tiers

Florida defers to other states. Per the Department of State, a felony conviction in another state makes a person ineligible to vote in Florida only if that conviction would make them ineligible in the state where they were convicted. New York's 2021 law removes voting rights only during incarceration, restoring them on release even during parole or supervision.

Donald Trump is a Palm Beach County voter. He was convicted on May 30, 2024 of 34 felony counts of falsifying business records in New York. Sentencing was deferred past the election, and he voted in Florida on November 5, 2024. DeSantis said the Florida Clemency Board would restore his rights if that became necessary.

No law was changed to make this possible. The deference rule predates the conviction. That is the point, and it is a stronger one than any accusation of a rule rewritten for one man: Florida's existing rules already produce two tiers. A New York conviction routes a Florida voter through New York's rules, which restore rights on release. An in-state conviction routes a Floridian through the fines-and-fees regime, in a state with no central system for telling them what they owe.

The clemency ledger

The pattern predates Amendment 4 (2018), and it does not run in one direction.

Under Jeb Bush, roughly 600,000 people who had served felony sentences were estimated to be disenfranchised. Nikki Fried cited more than 76,000 restorations during his tenure.

In April 2007, Charlie Crist's revised clemency rules created automatic restoration for nonviolent offenses. Over four years, 155,315 Floridians had their rights restored.

In March 2011, Rick Scott, joined by Attorney General Pam Bondi, eliminated the Crist reforms and imposed waiting periods of five to seven years and longer. Across his tenure the board restored the rights of roughly 3,005 people out of more than 30,000 applicants, and the backlog climbed above 10,000.

In March 2021, DeSantis and the Cabinet eliminated those waiting periods and created an expedited path for people who had paid their legal financial obligations, a change presented as a way to reduce the backlog. That cuts against the rest of this account, which is exactly why it is here.

Context

The Sentencing Project has tracked re-enfranchisement across the country since 1997 and counts the total in the millions. A Minnesota study found that people with past convictions who voted were meaningfully less likely to be rearrested in the following years. A 2012 Florida survey found that a substantial share of disenfranchised respondents connected voting to their own sense of whether they could remain law-abiding.

The specific figures behind each of those findings are not printed here, because the underlying studies have not been pulled and read. They are in the verification queue.