Ask Jordan: How can Trump vote if he was convicted of a felony?

“Donald Trump reportedly votes by mail. I read he has a felony on his record. I thought felons lose the right to vote, so how can he vote?” — Steve

Hi Steve,

The rules vary by state. Trump can vote because of how the laws intersect in Florida (where he has registered to vote) and New York (where he was convicted of a felony).

As you note, the president has voted by mail. He has done so while railing against mail voting as fraudulent and trying to restrict it ahead of the midterms. Asked to justify his behavior earlier this year, he said: “Because I’m president of the United States.”

Hypocrisy and voting methods aside, let’s get into your question about voting with a felony conviction.

In the only one of his four criminal cases that went to trial ahead of the 2024 election — the Stormy Daniels hush money case — a Manhattan jury found Trump guilty of falsifying business records in the first degree. That is a felony.

Under Florida law, an out-of-state felony conviction blocks someone from voting in Florida if it would block them from voting in the state where they were convicted. That means we must look to New York law for the answer: It says that a convicted felon can vote if they are not incarcerated. Trump is not incarcerated. Therefore, he can vote in Florida.

Indeed, he was never locked up for the hush money case. He received an unconditional discharge, which is basically a nonpenalty. Judge Juan Merchan chose that sentence because, he said, it was the only one he could impose without unduly interfering with Trump’s return to office.

To be sure, the defendant/president-elect was not facing much potential imprisonment anyway, because he was convicted of the lowest-level felony under New York law. But even if he had been incarcerated, the fact that he is free today means he can vote.

And though Trump’s conviction isn’t stopping him from casting ballots, I should note that he is appealing to overturn it, as any defendant would. That appeal is working its way through the courts and will likely be settled by the Supreme Court. It is unclear when the case will get to the justices. But if and when that high court reckoning comes, Chief Justice John Roberts and his colleagues will have a chance to decide whether their presidential immunity ruling for Trump in the federal election interference case also provides him relief in the hush money case.

Next level

While we’re on the subject, let’s take it to the next level with a thought experiment that connects the hush money appeal to the voting issue.

Imagine, if you will, a counterintuitive scenario in which Trump loses his right to vote as an indirect consequence of winning his appeal.

Let’s say the Supreme Court decides that he was improperly convicted with evidence that should have been barred under presidential immunity. That could raise the prospect of a retrial, where New York prosecutors would attempt to convict him again but without being allowed to use that tainted evidence (whatever the court would say that evidence is, exactly; Trump’s lawyers have cited, for example, the prosecution’s reliance on testimony from his first-term White House aides).

Admittedly, this hypothetical scenario is already speculative on several fronts, because it depends on the conviction being overturned, the grounds on which it is overturned, the possibility of a retrial and one actually going forward — which wouldn’t happen at least until 2029, after Trump leaves office.

On top of all that, imagine that he is convicted again, but, without an impending White House return justifying an unconditional discharge, is sentenced to some jail time. If an election coincides with that incarceration, then he could miss out on voting in that election — say, the 2032 presidential election. Of course, if all of this comes to pass, then voting might be the last thing on the 86-year-old’s mind.

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