Billionaire Mike Bloomberg has pledged to pour $100 million dollars in Florida alone to elect Joe Biden as part of his earlier pledge to pump hundreds of millions into the election. The role of billionaires like Bloomberg and Sheldon Adelson in pouring hundreds of millions into the election for each side remains controversial, though many past critics of such windfall campaign financing are now demanding more support. Bloomberg however is now under fire for pledging to pay off the debts of Black and Hispanic former felons to allow them to vote. The Washington Post reported that the funding of only Black and Hispanic former felons was due in part to the fact that they are more likely to vote for Biden. That effort has led to allegations that Bloomberg may himself be committing a felony under Florida election laws. Much of this controversy is focused on the reporting of the Washington Post and an alleged Bloomberg memo. The money is actually distributed by a Florida organization committed to restoring voting rights for former felons.
Florida voters passed a constitutional amendment in 2018 restoring the right for felons to vote, except those convicted of murder or felony sexual offenses. This right was later conditioned on the payment of all fees, fines, and restitution that were part of their sentence. The right to restrict such voting was uphold by the Eleventh Circuit and that order was left in place in June by the United States Supreme Court over the dissent of Justices Sonia Sotomayor, Elena Kagan, and Ruth Bader Ginsburg.
Bloomberg is now moving to pay off those debts for nearly 32,000 Black and Hispanic convicted felons. Notably, while defending this effort as simply restoring the right to vote for felons, Bloomberg will only do that for Black and Hispanic voters. A Bloomberg memo first reported by the Washington Post read: “We know to win Florida we will need to persuade, motivate and add new votes to the Biden column. This means we need to explore all avenues for finding the needed votes when so many votes are already determined.” As a result, Bloomberg is only clearing the way for Black and Hispanic voters because they are more likely to vote for Biden. Thus, those former felons who might vote for Trump are intentionally left disenfranchised by Bloomberg.
That raw political calculation has led some to raise the possible violation of Florida law. On Fox, Rep. Matt Gaetz (R., Fla.), stated that Florida Attorney General Ashley Moody told him that there might be a criminal investigation of Bloomberg. As an initial matter, such discussion of a possible criminal investigation of Bloomberg by Moody would in my view be highly inappropriate.
Gaetz stated “(Under Florida law) it’s a third-degree felony for someone to either directly or indirectly provide something of value to impact whether or not someone votes.”
That is not entirely accurate. Such an investigation would be based on Section 104.061:
104.061 Corruptly influencing voting.—
(1) Whoever by bribery, menace, threat, or other corruption whatsoever, either directly or indirectly, attempts to influence, deceive, or deter any elector in voting or interferes with him or her in the free exercise of the elector’s right to vote at any election commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084 for the first conviction, and a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, for any subsequent conviction.
(2) No person shall directly or indirectly give or promise anything of value to another intending thereby to buy that person’s or another’s vote or to corruptly influence that person or another in casting his or her vote. Any person who violates this subsection is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. However, this subsection shall not apply to the serving of food to be consumed at a political rally or meeting or to any item of nominal value which is used as a political advertisement, including a campaign message designed to be worn by a person.
Section 1 refers to “bribery, menace, threat, or other corruption whatsoever, either directly or indirectly” as the means for influencing the votes. Paying the debt of former felons is a lawful action and would not satisfy any of those criteria. “Corruption” is not a colloquial but a legal term. It must refer to a clear nexus of securing unlawful derived benefits. The term is most often used in public corruption cases, but the Supreme Court has routinely rejected broad interpretations of this term (something that I discussed in the Trump impeachment). See McNally v. United States, Skilling v. United States, McCormick v. United States, and McDonnell v. United States.
That leaves Section 2. That provision can be broken into two parts. First, there is the language “directly or indirectly give or promise anything of value to another intending thereby to buy that person’s or another’s vote.” Bloomberg is not securing a commitment of how these individuals would vote. It is true that they are assuming that Black and Hispanic ex-felons will vote for Biden but, unless Bloomberg or the Florida Rights and Restoration Coalition have expressly made such a quid pro quo with the beneficiaries, there is no purchase of a vote.
The second part of that provision allows a charge for any effort “to corruptly influence that person or another in casting his or her vote.” This language however is narrowly construed in criminal cases. It is not a “corrupt” purpose to clear the way for voting.
The memo (and the racial exclusion of other beneficiaries) does make these determinations more difficult since it undermines the public claim that Bloomberg was simply trying to restoring voting rights. However, they would need something more concrete to establish a corrupt purpose or a quid pro quo.
Of course, the racial exclusion of other votes and the memo could justify a criminal investigation shortly before the election. That would allow Florida investigators to seize material and interview staff members. Even if a basis for a criminal charge is not found, the memo destroys the high ground for Bloomberg in defending the right to vote for some, but not all, former felons.