As Americans across the country start the early voting process and prepare to return to the polls for the midterms, election officials should do everything possible to encourage one thing: voting. Instead, Florida’s new “election police” appear to be suppressing it by illegally targeting good faith voting mistakes. Fortunately, the Florida justice system is pushing back, and rightly so.
This is an important test case for American democracy in the newfound battles over voter suppression.
These misbegotten prosecutions first made headlines on August 18, when Governor Ron DeSantis announced the arrests of 20 people across the state by his new police force targeting alleged illegal voting. The arrestees were former felons who appear to have believed they could vote under Amendment 4, which restored voting rights to those convicted of a felony whose sentence had expired, with some narrow exceptions. It turns out that many were specifically told by government officials that they could register to vote—and that many if not all had received voter registration cards suggesting they could legally vote.
Legally Flawed Cases
Now it turns out that the office of the statewide prosecutor handling the charges likely does not have legal authority to bring the criminal cases. The statute used by the prosecutor, Fla. Stat. § 16.56, provides jurisdiction to prosecute election crimes that occurred in “two or more judicial circuits.” Where a person registers to vote in one circuit and then votes in that circuit, the terms of the statute are not met.
That was the infirmity that led a trial court in Miami to issue an order on October 21 throwing out the first of the cases. The court ruled in favor of Robert Lee Wood—one of those arrested in August—and dismissed the case. Given the success of that motion, we expect all other attorneys representing clients who registered and voted in a single circuit to file similar motions.
Of course, the judge’s ruling is subject to appeal, which will likely center on an argument that he rejected. Prosecutors claim that any alleged election crime outside of the capital necessarily happens in more than one judicial circuit because voter registration applications are sent there for processing. The Miami judge rebuffed that nonsensical argument in his ruling: “Even assuming that Mr. Wood’s passive role in the transmission of his voter application form and completed ballot to Tallahassee is ‘activity’ that can be ascribed to him, it is not his ‘criminal activity.’” We think the Florida appellate courts will look askance at this argument by the prosecutors for the same reason.
Understandable Voter Confusion
The jurisdictional problems are just the beginning of the flaws in these charges. We expect others to be tossed out because of the lack of criminal intent. Amendment 4 and its aftermath created widespread confusion over which “returning citizens” (former felons) are eligible to vote. In short, they should not be blamed—let alone criminally punished—for erring when Florida told them they could vote.
Some background is helpful here: Amendment 4 reformed Florida’s archaic constitutional provision disenfranchising all citizens “convicted of a felony.” By 2016, the constitutional provision was suppressing the vote of approximately 1.4 million people in Florida, including over 21% of otherwise eligible Black voters.
Amendment 4 restored voting rights to all people convicted of a felony—other than murder or a sex offense—whose sentence (including probation and parole) had expired. Florida voters overwhelmingly voted in favor of the amendment, passing the required 60% supermajority needed for the law to go into effect.
That’s when the confusion began. First, Florida legislators passed S.B. 7066, significantly curtailing the impact of Amendment 4 by requiring payment of all court fines, fees, and restitution in order to have voting rights restored. Because of a lack of any central repository of such information, it is effectively impossible for voters to discern whether necessary financial obligations have all been satisfied. Civil rights groups challenged S.B. 7066, arguing that it amounted to an unconstitutional poll tax. In May 2020, a federal district court agreed, imposing a permanent injunction against the law. Just six months later, the U.S. Court of Appeals for the 11th Circuit reversed that decision, and the law went into effect.
It is no wonder that, in light of the caveats and court battles following the enactment of Amendment 4, some returning citizens mistakenly believed they were entitled to register and vote.
Indeed, it appears state officials and the media were confused as well. Many of these voters were specifically told by government officials that they could register to vote—and many if not all received voter registration cards. Press reports reinforced that idea, indicating that receipt of a voter information card serves “as an acknowledgement that the state has backgrounded the registrant and they are indeed eligible to vote.”
Florida’s voter registration form does not do anything to clear up the confusion. It simply requires any registrant to check a box stating, “I affirm that I am not a convicted felon, or if I am, my right to vote has been restored.” This simple affirmation does nothing to help returning voters address any reasonable misunderstanding.
A Lack of Criminal Intent
Any returning citizen who, as a result of this situation created by the state and others, honestly believed they could register or vote, will have lacked the criminal intent necessary for prosecution. The two statutes prosecutors are charging are “False swearing” (Fla. Stat § 104.011) and “Unqualified electors willfully voting” (Fla. Stat. § 104.15). The former criminalizes “willfully swear[ing] or affirm[ing] falsely to any oath or affirmation … in connection with or arising out of voting or elections [emphasis added].” The latter criminalizes voting when a person “know[s] he or she is not a qualified” voter. Anyone convicted of either offense faces a maximum sentence of 5 years.
But these voters do not appear to have been acting willfully or knowingly. Under Florida law that is generally defined as actual awareness of their ineligibility to register or vote. It is hard to see how prosecutors can prove that beyond a reasonable doubt in many if not all of these cases.
It was for this reason that a Florida prosecutor recently declined to prosecute six people in Lake County, Florida, who had voted in the 2020 general election. According to the State’s Attorney’s Office, each person appeared “to have been encouraged to vote by various mailings and misinformation,” and each had been “given voter registration cards.” Consequently, the prosecutor found that the evidence “fails to show willful actions on a part of these individuals.”
In analogous circumstances, the United States Supreme Court has held that the Due Process Clause of the U.S. Constitution prohibits conviction where a person reasonably relies on the advice of a government official. The Supreme Court noted that to hold otherwise “would be to sanction an indefensible sort of entrapment by the State—convicting a citizen for exercising a privilege which the State had clearly told him was available to him.”
The Final Straw
In the last week, news organizations have posted body-camera footage of some of the arrests. In each video, the person arrested cannot believe that they had done anything wrong. Romona Oliver told officers as she was arrested, “I voted, but I ain’t commit no fraud.” As he was arrested, Tony Patterson similarly said, “Voter fraud? Y’all said anybody with a felony could vote, man.” Nathan Hart’s arrest also suggested he had no idea that he was not authorized to vote. He told the officers that while at the DMV, he was informed that any person who had completed probation was eligible to vote.
These are acts of cruelty by the governor and his election police and his enforcement policies. The good faith of these returning citizens who thought they were doing their civic duty is evident. Indeed, the circumstances are so wrong (and so probative of innocence) that some of the arresting officers are apologetic. As well they should be.
The Charges Must Be Dismissed
Given the serious legal flaws that appear to be present based upon public reporting, one cannot help but wonder why these cases were brought at all, and particularly in proximity to an election. We must ask whether this is a calculated strategy designed to intimidate all returning citizen voters—not just those few who are ineligible.
Fortunately, the dismissal of the first case by the courts sends an important counter message: it is not only voters who must comply with the law, but also the state. Unless prosecutors are in possession of some additional evidence that the people arrested in Florida’s August sweep knew they were not qualified to vote, then the other cases should also be dismissed immediately.