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Tennessee intensifies felony disenfranchisement scheme; Florida sued over pay-to-vote system
Tennessee made it more difficult for people convicted of felonies to restore their voting rights, creating what voting rights advocates call the most “strenuous and confusing” system in the nation.
Two residents of Tennessee who were convicted of felonies in other states but had their voting rights restored were denied the right to vote in Tennessee. Ernest Falls was convicted of a felony in 1987 in Virginia and had his voting rights restored by a grant of clemency from then-Gov. Ralph Northam. Arthur Bledsoe was convicted of a felony in North Carolina in 1996 and had his rights restored automatically, under state law, after completing his sentence.
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Both men moved to Tennessee and attempted to register to vote. According to Tennessee law, there are three ways for a person with an out-of-state felony conviction to have their voting rights restored in-state:  the governor or the other state may restore the individual’s rights, allowing them to vote in-state,  legal mechanisms, like a provision automatically restoring rights upon sentence completion, of the other state may allow a person to vote in-state,  a person may meet criteria under Tennessee law to have their voting rights restored in-state.
Tenn. Code Ann. § 2-19-143(3): No person who has been convicted in another state of a crime or offense which would constitute an infamous crime under the laws of this state, regardless of the sentence imposed, shall be allowed to register to vote or vote at any election in this state unless such person has been pardoned or restored to the rights of citizenship by the governor or other appropriate authority of other such state, or the person’s full rights of citizenship have otherwise been restored in accordance with the laws of such other state, or the law of this state.
Falls had his rights restored under the first pathway and Bledsoe had his rights restored under the second pathway. However, when registering to vote in Tennessee, the state denied their application, saying that people with out-of-state felony convictions must satisfy the criteria of all three pathways in order to vote in Tennessee. In other words, an individual must have had their voting rights restored in the state of their conviction AND meet all requirements for a person with an in-state conviction to have their voting rights restored (under section 40-29-202). In Tennessee, that means an individual with a felony conviction must also pay all victim restitution, pay all court costs and fines, and be current in all child support obligations—a scheme called pay-to-vote.
Falls and Bledsoe sued, arguing that the Tennessee attorney general’s office was erroneously denying their right to vote. The state supreme court ultimately ruled in favor of the state, finding that the word “unless” in § 2-19-143(3) (quoted above) means that the state does not have to acknowledge a person’s voting rights were restored out-of-state.
Accordingly, the text of section 2-19-143(3) that follows “unless” illustrates exceptions to the otherwise hardline rule that convicted infamous criminals are forbidden from voting or registering to vote. Nothing in the statute, however, leads us to conclude that compliance with an exception enumerated in that statute precludes the legislature from enacting further re-enfranchisement requirements in separate statutes. Rather, the statute reads as if compliance with one of the three section 2-19-143(3) exceptions provides for the possibility that a person’s suffrage rights will be restored…Article I, section 5 does not mandate that the legislature provide convicted infamous criminals with a pathway or pathways to regain the right to vote.
Instead, the majority reasoned, an individual who was pardoned for an out-of-state felony conviction must also meet all the criteria for in-state voting rights restoration:
To comply with the first exception set forth in section 2-19-143(3), a person must be “pardoned or restored to the rights of citizenship by the governor or other appropriate authority of such other state.” But, to regain the right of suffrage, that person must also fulfill the requirements laid out in section 40-29-202. To comply with the second 2-19-143(3) exception, one must have “full rights of citizenship … restored in accordance with the laws [of the state of prosecution].” To regain the right of suffrage, that person also must fulfill the requirements laid out in section 40-29-202. To comply with the third exception, one must comply with all of chapter 29 of the Tennessee Code, including sections 40-29-101 through -109. Yet, to regain the right of suffrage, that person must also fulfill the requirements laid out in section 40-29-202.
Judge Sharon Lee dissented, writing that “Mr. Falls’ voting rights were fully restored; he should not be denied his constitutional right to vote.”
Adopted at different times, in different Titles of the Code, and for different purposes, section 40-29-202 and section 2-19-143 neither cross-reference the provisions of the other nor indicate the sections should be read together. Had the General Assembly intended to do so, it could easily have incorporated or referenced section 2-19-143 when later enacting section 40-29-202. Even though both statutes touch on voting, piggybacking the requirements of one onto the other stretches in pari materia construction beyond its proper scope.
Tennessee already has one of the highest felony disenfranchisement rates in the nation, with more than 9% of the voting-age population unable to vote due to a conviction. Of the estimated disenfranchised population in Tennessee (over 471,000), nearly 174,000 are Black, accounting for more than 21% of the Black voting age population – likely the highest rate of Black disenfranchisement in the United States. The expansion of the pay-to-vote scheme to include out-of-state convictions will only increase the number of people unable to restore their voting rights.
“It’s very hard to get your restoration of citizenship - even harder than getting a certificate of restoration,” said Blair Bowie, an attorney at the Campaign Legal Center who has been involved in a number of lawsuits challenging Tennessee’s rules around felon disenfranchisement, including the Falls case.
“The new process is more difficult than the procedures that existed before the legislature created certificates of restoration in 2006 and it puts Tennessee in the bottom of the barrel on rights restoration as one of the only states with a fully discretionary process, alongside Mississippi and Virginia.”
The Florida Rights Restoration Coalition and several Florida citizens filed a federal lawsuit against Gov. Ron DeSantis (R) and other state officials challenging the state’s disenfranchisement scheme and “election police” force.
In 2018, 65% of Florida voters approved Amendment 4 to automatically restore the voting rights of people with felony convictions “after they complete all terms of their sentence including parole or probation.” Approximately 1.4 million Floridians, almost 7% of the state's population, would have had their right to vote restored.
About six months later, the Florida legislature passed Senate Bill 7066, adding a requirement that people with felony convictions pay all “fines and fees” in order to have their sentence considered “complete.” Gov. DeSantis signed the bill into law in June 2019, thereby adding a significant obstacle to voting rights restoration that the voters did not approve.
The plaintiffs allege that the state of Florida has “created and perpetuated a bureaucratic morass that prevents people with prior felony convictions from voting, or even determining whether they are eligible to vote.” In addition to adding the onerous pay-to-vote requirement, Gov. DeSantis and state officials have failed to create a system in which people seeking to restore their voting rights can determine if, and how much, money they may owe in fines, fees, and restitution.
Since the enactment of S.B. 7066, the Plaintiffs and other people with prior felony convictions across Florida have been unable to determine their eligibility to vote because of administrative failings within the state’s executive branch caused by the Defendants’ acts and omissions. As detailed below, the Defendants have created and encouraged a chaotic and broken system that is incapable of collecting and assessing the necessary information, particularly data related to LFOs, to determine the voting eligibility of people with prior felony convictions.
These failures go far beyond mere failure to “locat[e] and provid[e] felons with the facts necessary to determine whether they have completed their financial terms of sentence.” As described below, the Defendants have failed to comply with the express provisions of S.B. 7066 and this failure has resulted in a free-for-all by which various Defendants (1) apply inconsistent and often incorrect legal analyses to (2) inaccurate information concerning whether people with prior felony convictions have completed their financial terms of sentence, in a complex labyrinth of misadministration that can only be described as “so standardless that it invites arbitrary enforcement.”
For example, plaintiff Angel Sanchez was advised by his probation officer in 2014 that he had paid all financial obligations stemming from convictions in the 1990s. However, in 2020, the website for the Miami-Dade County Clerk of Court incorrectly indicated that he still owed money. After presenting records from the Florida Department of Corrections–Probation Services indicating that he had actually overpaid his financial obligations, the Miami-Dade County Clerk of Court still refused to correct its records. Sanchez then sought and obtained an advisory opinion from the Department of Elections stating that it believes his rights were restored but implying that additional information could reverse its opinion. “Mr. Sanchez understands that, under those circumstances, the advisory opinion he received from the Department of Elections may not protect him from prosecution,” the lawsuit explains.
More than a year later, the Miami-Dade Clerk of Court began sending Sanchez letters “accusing him of failing to pay his outstanding LFOs and threatening to suspend his driver’s license and send the balance of his debt to a collections agency.”
The refusal of the Miami-Dade County Clerk of Court and the debt collections agency to adjust its records to reflect Mr. Sanchez’s LFO payments, the lack of communication among agencies within Florida’s executive branch (all controlled by Defendant DeSantis), the caveated advisory opinion Mr. Sanchez received from the Department of Elections, and the August 2022 arrests by the FDLE have led Mr. Sanchez to fear that he may be arrested for exercising his fundamental right to vote, notwithstanding his good faith belief that he is entitled to vote under Amendment 4 and S.B. 7066…Mr. Sanchez believes he should not have to jeopardize his career prospects or live in a constant state of fear because he chooses to exercise his fundamental right to vote.
To make matters worse, the lawsuit alleges, Gov. DeSantis then created the Office of Election Crimes and Security to “intimidate people with prior convictions from voting.”
Faced with mounting public criticism and concern about the failures of the State of Florida to properly verify the eligibility of prospective voters, the Defendants doubled down. Rather than take action to correct the problems they helped create, the Governor, Secretary of State, and FDLE Commissioner initiated a statewide law enforcement campaign to intimidate people with prior convictions from voting. This new initiative capitalized on and magnified the statewide fear and uncertainty among people with prior convictions by promoting the belief that criminal consequences would follow if they, even mistakenly and in good faith, voted when they were not eligible. As described below, this effort by the Defendants further intimidated and deterred people with prior convictions from voting and attempting to vote, including Plaintiffs Jones, Sanchez, Waite, and Walthour, and from urging and aiding and attempting to urge and aid others to vote, including FRRC.
20 people were arrested for registering to vote when they were not eligible. Most, if not all, were led to believe that they were permitted to vote:
According to a former Supervisor of Elections in Leon County, the arrestees included individuals who were “told by a government official that they could vote.” Moreover, “[m]any, if not all, of them also received voter information cards from the state, bolstering their belief that they were eligible to vote. Still the ‘election police’ criminalized these honest mistakes as voter fraud.” Indeed, an investigation into alleged illegal voting by persons with prior felony convictions in Alachua County found that the arrestees “were either told [by County election officials] or believed they were able to legally register and/or vote.”
The lawsuit asks the court to declare Florida in violation of Section 11(b) of the Voting Rights Act, which protects against voter intimidation, as well as the First and 14th Amendments. Further, they request that the court order the state to “establish a reliable state-wide database that allows individuals with prior felony convictions to determine if they have outstanding [financial obligations]” and provides accurate information on when and how to make payments.
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