ORLANDO, Fla. — Gov. Ron DeSantis’ election fraud show of force is casting light on a broken system for restoring the voting rights of Floridians with felony convictions and bringing flawed criminal cases against people who mistakenly thought they could vote, defense lawyers and advocates say.
Rather than charging Floridians with crimes, DeSantis’ administration should address its own shortcomings that allowed voter registration cards to be issued to ineligible people, said state Rep. Michael Gottlieb, a Broward County lawyer who is representing one of the people facing voter fraud charges.
“If they allowed you to do it and they are an arm of the government, how does the government then come and prosecute you for something they allowed you to do?” asked Gottlieb, D-Davie. “It’s almost as if the state is a co-conspirator.”
On Aug. 18, DeSantis announced the arrests of about 20 people convicted of murder or felony sex offenses who he said voted illegally in the 2020 election. Backed by a wall of uniformed police officers, DeSantis made the announcement in Broward County, the state’s Democratic stronghold.
He vowed his new Office of Election Crimes and Security would take a tough stance on voter fraud. The arrested voters face felony charges with a penalty of up to five years in prison.
The Department of State, which includes the state Division of Elections, is responsible for flagging people who are not eligible to vote and telling local election supervisors to remove them from the rolls. Both are part of DeSantis’ administration.
State Sen. Jeff Brandes, R-St. Petersburg, said the state’s position doesn’t take into account the confusion during the implementation of Amendment 4, which automatically restored voting rights to most felons but not sex offenders or convicted murderers.
“We always intended for there to be grace,” Brandes said, who sponsored a bill that implemented Amendment 4. “You have felons who can’t read. You have individuals who went to their local Walmart, somebody asked if they want to vote because felons’ rights were restored and they took their word.”
The buck stops with the secretary of state, who is the state’s chief elections officer and should vet people registering to vote and notify them if they are ineligible, Brandes said.
DeSantis named Cord Byrd, a Republican Jacksonville-area state lawmaker, secretary of state in May. Byrd’s predecessor, Laurel Lee, stepped down to run for U.S. Congress.
“What I want to see is the secretary of state say, ‘This isn’t going to happen again, and we are going to fix this. We own this, and it’s our responsibility,’” Brandes said. “That’s what leaders do.”
Mark Ard, a spokesman for the Division of Elections, said blame rests with sex offenders and felons convicted of murder who “committed perjury” when signing up to vote. His response didn’t fault his agency’s process for screening voters.
“As courts have noted, it is easy to be put on the rolls and difficult to be removed,” Ard said in an email. “This is as it should be. These individuals lied when they registered to vote. They were never eligible, and there is no confusion on that point. We are confident that when all the facts and evidence are revealed through the legal process, the reasons these individuals were arrested will be clear.”
Florida’s voter registration form requires a prospective voter to attest: “I affirm that I am not a convicted felon, or if I am, my right to vote has been restored.” It also states that submitting false information is a felony offense.
Advocates say the people arrested on voter fraud charges were simply confused, and some had even been erroneously told by government officials they could cast ballots.
“This is a clear example of a broken system, in particular the front-end of the system as it related to voter-eligibility determination,” said Neil Volz, deputy director of the Florida Rights Restoration Coalition. “What we need to focus on is doing what other states do, which is have a voter-eligibility system that clears somebody on the front end.”
In 2018, Florida voters approved Amendment 4, which automatically restored voting rights to people with felony convictions who had completed all terms of their sentence, except those convicted of murder or a felony sexual offense. State lawmakers later clarified that felons must pay all fines and fees before they can vote, a caveat that led to a protracted court battle with voter groups.
Floridians with murder and sex offense convictions could have their voting rights restored through the clemency process. That requires the approval of the governor and two Florida Cabinet members and is rarely given.
Shaky legal ground
The state is on shaky legal ground when it comes to charging people who received voter registration cards, Gottlieb said. Chiefly, the state must show that the voters “willfully” cast an improper ballot and knew they were voting illegally.
In affidavits, the arrested voters said they thought their rights had been restored and in some cases had even been advised by government officials that they could vote.
Peter Washington Jr., 59, of Orlando told officers he had been advised by a probation officer that his civil rights would be “automatically restored upon his release from prison,” according to court records. Washington was convicted of attempted sexual battery, yet received a voter registration card and voted in the 2020 election.
In another affidavit, Jerry Foster, 72, also of Orlando, said an Orange County Sheriff’s deputy assigned to sex offenders told him he could vote, and he was under the impression DeSantis had “blessed” convicted felons with the right to vote.
Bill Cowles, Orange County’s supervisor of elections, said his office doesn’t have access to databases to check a person’s eligibility and relies on the state to provide that information.
Washington registered to vote in May 2019, but Cowles said his office wasn’t notified he was ineligible to vote until December 2021, he said.
Larry S. Davis, a South Florida attorney representing a man arrested in Miami-Dade County, said his client thought he was eligible to vote because someone offered him a voter registration form at Walmart and told him he could fill it out because felons had their rights restored.
“For there to be fraud, there must be intent,” Davis said. “When my client received a voter registration card, his only intent in voting was to participate in the election like everyone else. He figured I can vote because the government has cleared this.”
Cowles called for state leaders to make it easier for Floridians with felony convictions to verify if they are eligible to vote.
“There is no go-to source for them to know what their true status is,” he said. “Somehow the state has got to come up with a way so these individuals can verify their status.”
Floridians with felony convictions should check with the clerk of courts in the county where they were convicted to determine if they’ve paid all fines, fees and restitution, Ard said.
If they are still unclear, they can request an advisory opinion from the Department of State, he said.
Gottlieb said he thinks the governor’s news conference was aimed at discouraging Democrats from voting with DeSantis, a Republican, running for reelection this year.
“It certainly was a show of force,” he said. “Why did he come to Broward to do it? He could have stayed home and made the same announcement. It was political theater to scare off potential Broward voters who vote blue.”
Four residents of The Villages accused of casting multiple ballots in the 2020 presidential election didn’t garner attention from DeSantis. The Villages is a Republican stronghold.
No state jurisdiction?
Davis and Gottlieb also questioned whether Attorney General Ashley Moody’s Office of Statewide Prosecution has jurisdiction because the alleged offenses didn’t happen in multiple counties.
Kylie Mason, a Moody spokeswoman, declined to comment, saying the cases will be addressed through court filings and proceedings.
The number of voter fraud cases is minuscule compared with the more than 11 million ballots cast in the 2020 presidential election.
Court testimony from May 2020 showed the state was struggling to review registered voters whose names and birthdates matched those of felons. The GOP-led Legislature’s interpretation of Amendment 4 added to the workload because staff needed to review whether people with felony convictions owed fines and fees.
The Division of Elections had a backlog of 85,000 files but was only able to process an average of 57 a day with a staff of 20 people, Maria Matthews, director of the Division of Elections, testified in federal court.
That would mean it would take about four years to get through the backlog working at that pace 365 days a year.
“We are understaffed at this time,” Matthews testified. “We work through the files the best we can.”
About 260 registered sex offenders and 1,200 felons on probation remained on the voter rolls ahead of the 2020 elections, even though they were ineligible, according to a review by the Miami Herald, Tampa Bay Times and ProPublica in October of that year.
Volz, the felon voting advocate, said work needs to be done to ensure the state can verify eligibility on the front end, instead of arresting people after the fact.
“If this is going to be a campaign of election integrity, let’s fix our system,” he said.
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