Florida’s Bad Faith Prosecutions of Good Faith Voters

When I was a teenager, I was convicted of a felony in Florida and stripped of my right to vote before I was even old enough to cast a ballot.  I regained that right in 2018 when Florida voters approved the historic state constitutional amendment known as Florida’s “Amendment 4”.  Amendment 4 ended life disenfranchisement for many people with past felony convictions like me who had served their sentence. Lawmakers, however, reacted to this historic amendment with a law known as SB 7066, which requires people with past felony convictions to make payments of legal financial obligations (LFOs) in order to receive Amendment 4 restoration regardless of indigency or the state’s inability to properly implement this LFO system.

My case had been closed nearly a decade ago, so I thought that I did not have any outstanding issues to worry about under SB 7066. I proudly registered the day Amendment 4 went into effect and voted for the first time a year later during the 2020 primary elections. It was one of my greatest memories, until it became a near nightmare. Months after voting, I learned that I was apparently ineligible based on old court records showing I had unpaid court costs and fees from years earlier. I was in tears and afraid.   I had spent years trying to turn my life around and my efforts suddenly did not matter, simply because I voted. After weeks of searching, I discovered proof of payments showing that the court records were wrong.   I was one of the lucky ones.

Had I not found those proofs of payments from almost a decade prior, today I could be among the many returning citizen voters in Florida being subject to prosecution for mistakenly registering and voting while allegedly ineligible. Even if not prosecuted, I could be among the hundreds of thousands of returning citizens being threatened with arrest for any mistake in voting, whether that mistake is theirs or one in the state’s own records (like in my situation).  Florida’s leaders created this issue when they failed to create a centralized voter information system with SB 7066, almost certainly knowing that a failure to do so would leave election officials and voters guessing about their eligibility.  The state is now taking advantage of those voters that guessed wrong and is publicizing the arrests in ways that appear intended to intimidate the remaining tens of thousands of uncertain but otherwise eligible returning citizen-voters into not voting. 

Federal claims were filed against SB 7066 as soon as it went into law. In Jones I, the District Court entered a preliminary injunction against SB 7066 concluding that it was unconstitutional and the Eleventh Circuit applied heightened scrutiny affirming the preliminary injunction.  Thereafter the District Court held a six day trial on the merits and entered a permanent injunction against SB 7066.  The Eleventh Circuit Court of Appeals, heard the Jones II appeal en banc and overturned its prior ruling in Jones I and reversed the District Court’s opinion on the merits. 

The Jones II court ruled in favor of the State, finding SB 7066 constitutional. However, it did not do so without outlining certain protections for voters even under SB 7066. The Jones II court reasoned that good faith voters would not be prosecuted for mistakenly registering and that once placed on the rolls post-registration those voters would be entitled to vote until the state screened and removed them through the proper removal process.  During oral arguments, the State assured the Jones II court that it had “gotten its act together” and explained that post-registration the burden is on the State to find credible and reliable evidence of ineligibility, and until the State does, the voter remains eligible to vote.  It explained that the State was applying the rule of lenity on eligibility determinations by erring in favor of voter eligibility until the State identifies credible and reliable information to the contrary. 

Yet a review of the criminal investigations and prosecutions in Florida since Jones II indicates that the State is ignoring both its asserted policy and the court’s holding in Jones II. Rather, the State is scouring its records to go after those same voters it misleads. Instead of reviewing records on the front end to prevent ineligible voting, the State is neglecting its self-imposed burden: it is approving registrations without screening voters, placing them on the rolls and leaving them there for years, sending them voter IDs leading them to believe they are eligible to vote, and then prosecuting them for mistakenly voting in good faith.  Adding racial partisanship to injury, the majority of those targeted are Black voters from Democratic areas.  The Governor even held press conferences to publicize the arrests and intimidate other returning citizens from voting.  Florida’s disregard of Jones II in this way is proving the Jones II dissenters were correct when they warned the majority that SB 7066 is administratively irrational and would lead to these problems.  They prophetically warned that the State could not be trusted to provide good faith protections against prosecutions of mistaken voters, a failure that would in turn deter uncertain eligible voters from registering and voting. 

To properly fix Florida’s self-created broken system, the legislature must fund the creation of centralized voter information system that reliably and diligently gives election officials and returning citizens assurances of their eligibility and, in the case that they are ineligible, informs them of what they must do to become eligible. Such a system must be created with safeguards that err on the side of the voter, that allow returning citizens to challenge incorrect state records (like in my situation), and that provide legal protection for voters who rely on such system.   In the interim, the governor must use his executive powers to order—under penalties of removal—local and statewide law prosecutors to follow Jones II and the State’s rule of lenity policy and stop criminally arresting and prosecuting good faith mistaken voters under SB 7066. Florida’s Nobel Peace Prize-nominated voting rights organization, the Florida Rights Restoration Coalition (FRRC)—which itself is led by returning citizens—is demanding the same fixes on the ground as it leads efforts in assisting fellow returning citizens impacted by Florida’s broken system.  

In this essay, I discuss the rationales and assurances provided in Jones II, show how Florida is disregarding them, and provide policy recommendations for Florida to course correct. Part I provides the history of disenfranchisement in Florida, Amendment 4, SB 7066, and the Jones I and II litigation. It helps contextualize how the State’s actions in passing SB 7066 resulted in the broken restoration system we have today. It also records the important representations the State made to the Jones II court during oral arguments. These representations by the State are in essence publicly asserted state policies on SB 7066. They are favorable for returning citizens, but do not appear to have been transcribed and widely circulated so the excerpts are compiled here for the public. Part II shows how the State has acted in bad faith in criminalizing mistaken good faith voters contrary to Jones II and the State’s asserted rule of lenity policies discussed in Part I. Part III provides the steps the State must take to course correct, including the creation of a centralized voter information system with proper safeguards to eliminate confusion among returning citizen voters and election officials. The State must immediately stop arresting and prosecuting good faith voters who mistakenly voted due to the State’s broken system. Several recommendations are provided in this section to achieve these objectives in the most democratic-way possible.