Florida Passes Law Helping Election Police Bypass Judicial Scrutiny

A new Florida law gives Gov. Ron DeSantis’ prosecutors power to pursue more election-related cases — a move explicitly designed to circumvent recent judicial scrutiny of the state’s highly politicized voter prosecutions.

The law comes after DeSantis’ new election prosecution team’s first round of cases largely flopped, resulting in dropped charges, a number of dismissals, one plea agreement that resulted in no punishment and only one partial conviction. It is just one in a wave of renewed efforts by Republican legislators nationwide to amp up prosecutions of voters and election officials. The push shows that fearmongering around the myth of widespread voting fraud remains a legislative priority for many Republicans, even though it was largely a losing issue during the 2022 midterm elections.

An investigation from Reveal from The Center for Investigative Reporting found that following the 2020 elections, legislators across the country filed and passed a raft of bills that injected police and prosecutors into elections to an unprecedented degree. A new analysis by Reveal shows that push has only intensified in the four months since the midterms: Lawmakers in 20 states already have introduced at least 57 bills targeting election activity.

In Ohio, for example, a Republican lawmaker has introduced a bill that would establish an election integrity division within the Ohio secretary of state’s office. This unit would have the ability to investigate allegations of election fraud and voter suppression and refer these to a prosecutor or law enforcement agency. And in Texas, legislators introduced proposals this session that would enable the state’s Republican attorney general to appoint prosecutors from neighboring counties to investigate alleged cases of voter fraud in Texas’ large Democratic counties.

The law enforcement buildup efforts come in response to a made-up problem, as endless studies, court rulings and bipartisan reports have found no evidence of widespread voter fraud. Instead, they signal an aggressive new front in voter suppression that risks intimidating voters of color in particular.

While former President Donald Trump took the voter fraud myth and made it a central platform of the Republican Party, DeSantis, a likely primary challenger in the 2024 presidential race, has taken the idea and turned it into law enforcement policy in the state with the third-most electoral votes in the nation.

Matletha Bennette, a senior staff attorney for voting rights at the Southern Poverty Law Center who is based in Tallahassee, Florida, said DeSantis is exerting his control over all facets of state government and is now focusing on the judicial system. “Florida has been a petri dish for these laws,” she said. “It’s the testing ground.”

Republican politicians try to change voting laws “when results don’t match their expectations,” she said. “The Legislature is now changing the rules of the game.”

Since the 2020 election, Florida Republicans have passed successively more punitive election-related legislation. For example, in 2021, the Legislature restricted and criminalized ballot collection — a once-common practice of delivering ballots on behalf of friends or neighbors that is central to conspiracy theories about how the 2020 election was stolen from Trump. When lawmakers reconvened last year, they amended that law to upgrade ballot collection to a felony offense, punishable by up to five years in prison. And while lawmakers first created the election crimes division last year, they came back this year to give the statewide prosecutor more teeth to support the office’s work.

DeSantis’ first attempt at a voter crackdown hit a major jurisdictional snag.

Typically, elected state attorneys have jurisdiction over crimes that happen in their judicial circuit. The state constitution allows the attorney general’s Office of Statewide Prosecution to take over alleged crimes that take place in at least two judicial circuits as part of a related transaction, like stealing a car in one circuit and using it to commit a crime in another circuit. The constitution also allows state prosecutors to step in if an alleged crime affects multiple circuits, though state statute specifies that, in those cases, prosecutors also have to show that the crimes were part of a criminal conspiracy.

Last year, three separate judges threw out illegal voting cases from DeSantis’ team on procedural grounds. Each judge rejected the state’s argument that the statewide prosecutor could handle the cases because they took place in multiple jurisdictions: the county where the voter lived and the county where the secretary of state’s office processes voter registration applications and tabulates votes.

Lawmakers in Florida took note of those dismissals. The new law removes the conspiracy requirement for cases involving voting, voter registration, or getting a candidate or petition on the ballot. The change “may increase prosecutions for such crimes,” the legislative analysis states.

Rep. Anna V. Eskamani, an Orlando Democrat who voted against the law, said Florida Republicans’ new legislative supermajority has given DeSantis free rein to consolidate power. “It’s just so sick that with this type of supermajority and this type of thirst for power that you can just bend the law however you see fit to fit your political agenda,” Eskamani said. “It’s incredibly unsettling. It’s undemocratic and it muddies the division between the branches of government.”

Even under the new law, state prosecutors still will have to show that an alleged crime occurred in or affected multiple jurisdictions. That’s a key point, said Rep. Michael Gottlieb, a Florida criminal defense attorney and Broward County Democrat who voted against the new law. He said it doesn’t actually give state prosecutors more powers, but it will have a chilling effect on voters.

“All they did was delineate some more quote-unquote voting matters, and they didn’t change the jurisdiction of the statewide prosecutor because they can’t, because it’s in the Florida Constitution,” Gottlieb said of his peers in the Legislature. “The bill was really cover for the governor to try to make it look like the governor’s doing something, and it’s really just, in my opinion, intended to disenfranchise more people from being able to vote.”

Gottlieb represented Terry Hubbard, a man charged with illegally registering to vote and illegally voting in Florida last year. The charges against Hubbard, in Broward County, were dismissed in December.

Bryan Griffin, a spokesperson for DeSantis, wrote in an email that “the bill just passed by the Legislature and signed into law by the governor helps ensure that those who set out to undermine our democracy by illegally voting in Florida face legal consequences.”

Republican Rep. Juan Fernandez-Barquin, one of the authors of the bill, wrote in a statement that the law “seeks to reinforce Florida as a national model for election confidence and integrity, and it ensures fraud will be investigated and prosecuted to the fullest extent of the law.”

Fernandez-Barquin did not respond to Reveal’s requests for comment, nor did Republican Sen. Jonathan Martin, the bill’s lead sponsor in the upper chamber.

Last year, the state appealed the three court decisions dismissing charges for lack of jurisdiction. The state has not yet filed its briefs in those cases, and Whitney Ray, a spokesperson for the attorney general, did not specifically respond to a question about how the new law could affect them. In an email, Ray said only that the statewide prosecutor will move forward with the appeals, as well as cases that are pending in trial courts. “The Office of Statewide Prosecution previously had jurisdiction and still does today. However, because there was confusion in some courts, this law was passed to clarify the matter,” Ray wrote.

The cases are among 20 illegal voting prosecutions DeSantis announced in an August press conference. The cases involved people who were ineligible to vote because they had previously been convicted of murder or a sex-related felony, though most of them had received voter registration cards from the secretary of state’s office and also said they did not know they were not eligible to vote.

Robert Barrar, one of the attorneys who successfully argued that the statewide prosecutor can’t bring illegal voting cases, said the burden should be on the state, rather than the voter, to determine voting eligibility. He described the prosecutions as a “colossal waste” of taxpayer resources.

“What they really should be looking at is the people who apply for a voter registration card before it’s issued,” Barrar said. “They shouldn’t just be bureaucrats that rubber-stamp everything that comes in. And if that’s what they’re doing, that’s the problem. We’re paying people a lot of money to do this review and these review processes, and obviously they’re not looking closely enough.”

In its first annual report, issued in January, the Office of Election Crimes and Security said it had received complaints about or started investigations into more than 3,000 cases in 2022. Reveal analyzed the records in the report and found that:

• Nearly 50% of the cases were closed by the election crimes office outright, suggesting they didn’t make it past initial vetting, while another 5% were closed by a law enforcement agency to which the case was referred.
• Another 42% of cases are still pending, meaning the election crimes office has not yet finished vetting them.
• While the vast majority of cases stem from 2020, the office has handled 116 cases related to last year’s general election. Of those, 72 have been forwarded to statewide law enforcement and were considered active investigations at the end of the year. Almost all of them involve allegations of voting more than once in the same election or voting without being eligible to do so.

Meanwhile, DeSantis has asked the Legislature to increase the budget and size of the election crimes office, according to a recent proposal. The governor asked for $3.1 million and 27 staff positions, significantly higher than the $1.2 million and 15 staff positions approved last summer. That’s despite the fact that the unit has filled only three of those 15 positions, an organizational chart obtained by a Tampa news station in January showed. One of those three employees is a political operative, the news outlet found.

The governor also requested another $1.2 million for the statewide voter fraud hotline (which is overseen by the election crimes office), cybersecurity training for elections supervisors and a training program for verifying elections signatures. The Legislature is slated to consider and vote on the state budget during the current session, which started this week.

The Florida Department of State, which oversees the election crimes office, did not respond to questions about the office’s work and the budget increase request.

None of the cases brought by the state so far point to a widespread voter fraud scheme like the kind the Office of Election Crimes and Security was established to find. In many cases, the people prosecuted said they believed they were eligible to vote. Indeed, the state issued them voter registration cards.

The voters, in essence, were trapped: The state granted them the permission to vote, and then prosecuted them for it.

Abdelilah Skhir, a voting rights policy strategist at the ACLU of Florida, said the state should be providing resources to help people easily determine whether they’re eligible to vote.

“They’re instead using resources to criminalize what could ultimately just be a mistake,” he said.

This story was produced by Reveal from The Center for Investigative Reporting, a nonprofit news organization. Learn more at revealnews.org and subscribe to the Reveal podcast, produced with PRX, at revealnews.org/podcast.