TALLAHASSEE — The state’s top election enforcement officials stood in a Broward County courtroom on Aug. 18 in front of a row of green-uniformed sheriff’s deputies to send the message: If you cast a vote in Florida and you’re not eligible to do it, “we’re coming,” Gov. Ron DeSantis said.
The governor announced that 20 individuals across the state were being arrested for voter fraud as part of a crackdown on felons disqualified from voting because of convictions for violent crimes and sexual assault, the governor said.
“They’re going to pay the price for it,” DeSantis promised.
The announcement grabbed national headlines, further fueling speculation that DeSantis will run for president in two years. Yet, two weeks after law enforcement orchestrated the round-up of arrests to coincide with his press conference, the case is starting to fall apart.
The first obstacle is the legal principle of intent. For the state to get a conviction for a third-degree felony for the crime of voting as an unqualified elector, it must prove that the people who voted illegally willfully intended to break the law.
Yet of those arrested so far, all told Florida investigators that they received a voter registration card from their county elections supervisor’s office and believed they were authorized to vote by someone in government. According to the charging documents, some were told they were authorized to vote by multiple government officials.
“The more that comes out on the arrests, the more I believe the individuals involved had no knowledge or intent to violate the law,” wrote Sen. Jeff Brandes, the Republican from St. Petersburg and Senate sponsor of a 2018 law that allowed some felons to vote, in a post on Twitter.
Because “the state has to prove intent,” he said he wonders: “Were these people ever notified that they were not eligible to vote? And can we prove that they did it willingly?”
Four of those arrested in Broward County told investigators they received voter registration cards authorizing them to vote from the Broward Supervisor of Elections office between 2019 and 2020. At the time, the office was headed by Pete Antonacci, the lawyer DeSantis appointed to head the Office of Elections Crimes and Security.
On Aug. 18, the day of the arrests, Antonacci sent a note to supervisors of elections across the state with lists of convicted felons the office suspected of voting illegally. He said that it was “through no fault of your own” that the individuals “were registered to vote and voted in your county.”
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Laurel Lee, the former secretary of state appointed by DeSantis, and key legislators are on the record saying that it was the responsibility of the state, not the counties, to flag those who were ineligible to vote in 2020.
The 18 people arrested were registered to vote between late 2018 and 2020 during a period when the Department of State was struggling to weed out ineligible voters following the passage of 2018′s Amendment 4.
The amendment ended Florida’s lifetime ban on voting for felons but specifically excluded those who had been convicted of murder, sexual assault and criminal sexual behavior. The automatic restoration did not apply to people who had not completed “all terms” of their sentence, including probation or parole.
Republican legislative leaders, most of whom opposed the amendment, decided to implement a law clarifying that “all terms” included any court-ordered financial obligations, and they specified which crimes counted as murders and sex offenses.
State was understaffed
Under state law, it is the state’s responsibility to screen ineligible voters and inform county supervisors to remove those people from the rolls, then-Secretary of State Laurel Lee, a DeSantis appointee, told the Times/Herald and ProPublica in 2020.
But the state had no central database to check whether a felon owed fees, and by May 2020, the department had a backlog of 85,000 people it needed to verify and potentially remove, Division of Elections Director Maria Matthews told a federal judge that month. The backlog was almost hopelessly large, Matthews testified. She had 20 people capable of processing 57 applications a day, she said.
“We work through the files the best we can,” Matthews testified.
In the meantime, the state was not removing felons from the rolls who might owe fines and fees, Lee said.
Until local supervisors have removed those excluded from having their rights automatically restored, “they are eligible voters,” Lee told the Times/Herald in an interview on Oct. 5, 2020. “Those individuals are not being blocked from voting.”
In an email to the Times/Herald at the time, Lee said that it was the state’s job to verify the eligibility of felons and pass that information to county officials.
“The Florida Department of State has a duty under section 98.075(5), Fla. Stat. to identify those registered voters who have been convicted of a felony and whose voting rights have not been restored,” Lee wrote. “The law requires the department to review information from a number of sources and make an initial determination as to whether the information is credible and reliable.”
The state was, however, removing felons who were ineligible because they had murder convictions or sex offenses on their record. Lee said at the time that about 6,000 people had been removed from the rolls. But data at the time showed the state was struggling with the process.
The Times/Herald and ProPublica identified in October 2020 about 260 registered sex offenders and 1,200 felons on probation who were still on the voter rolls, even though they were ineligible.
The 18 felons targeted by DeSantis remained on the rolls for months after they voted in 2020. At least five of them from Hillsborough County, for example, were not removed from the rolls until this year, according to the county’s supervisor of elections.
Florida’s voter registration application asks applicants to check a box that reads: “I affirm that I am not a convicted felon, or if I am, my right to vote has been restored.”
During committee hearings, in discussions with supervisors of elections, and talks with the secretary of state’s office, legislators also concluded that determining which felons should be excluded from the voter rolls and which granted automatic restoration was the job of the state, not county officials, Brandes said.
“Supervisors just don’t have the capacity to do this, and only the state does,” he said.
To that end, the Legislature authorized $750,000 in 2019 for the secretary of state “to have the resources to thoroughly vet these things,” said Brandes, who was in charge of the Senate criminal justice budget at the time. “And if they needed more resources, they just simply needed to ask.”
Lee did ask for another $1 million in 2020, and the Legislature rejected it.
The voter arrests were the first project of the Office of Election Crimes and Security, proposed by the governor last fall as he attempted to quell calls from supporters of former President Donald Trump for the state to conduct an election audit to justify their baseless claims of voter fraud.
During the 2022 lawmaking session, Florida’s Republican-led Legislature created a slimmed-down version of the office and charged it “with investigating all election crimes in Florida.”
On Tuesday, DeSantis was asked at a news conference in Suwanee County, “What role does the state have in notifying elections supervisors about these ineligible voters?”
He didn’t answer the question but said the blame should fall on supervisors who allow ineligible voters to be added to the voter rolls. He didn’t mention that supervisors are required by law to pass along completed voter registration forms to the state for its approval.
“I think that there have been reports that supervisors have told voters, ‘Hey, if you’re a convicted murderer, you can go ahead and vote.’ That’s false. And that’s not following the law,” DeSantis replied. “... It’s really their responsibility to ensure that those voting rolls are accurate.”
Documents show that Florida Department of Law Enforcement agents knew that almost all of the people arrested Aug. 18 thought they had the right to vote in 2020 because they had received voter registration cards.
Romona Oliver, 55, was released from prison in 2019 after serving a 20-year sentence for second-degree murder. She told the Times/Herald she had heard about Amendment 4 while in prison, and didn’t realize that her offense was disqualifying.
She became a registered voter on Valentine’s Day 2020 when she registered at the Florida Department of Highway Safety and Motor Vehicles. She said she had mentioned that she had a felony but still received a voter card in the mail.
This spring, before her arrest earlier this month, she was removed from the Hillsborough County voter rolls.
“Why are we prosecuting people who made an honest mistake?” asked Mark Rankin, a Tampa-based attorney, representing Oliver for free. “If you’re a felon in Florida it would be very reasonable for you to believe that your rights were restored when the voters decided in 2018.”
Neil Volz, deputy director of the Florida Rights Restoration Coalition, said his organization is working to make sure that those arrested are released on bond and have access to pro bono legal counsel to fight the charges.
“There’s a different legal standard for removing somebody from the rolls and arresting them,” he said. “The bar to being arrested is wildly higher. It’s ‘beyond a reasonable doubt,’ and taking somebody’s liberty away really gets to the core of our democracy and how our systems work.”
‘Impact over intent’
Brandes predicts that many of the defense attorneys for those arrested will take some of the cases to trial, increasing the costs to the state.
“This is right now a million-dollar operation,” he said. “They’re going to find letters and they’re going to find video, and they’re going to find stuff that points to: We made a mistake.”
Whatever the outcomes, the announcement may have achieved the governor’s intended goal, Brandes said.
“It’s impact over intent,” he said.
“Do I think that anybody thinks it’s going to make a huge difference whether 20 people from around the state voted? No. But the impact was massive. And the impact for him both at the state level and the presidential level is probably going to be positive — which is what he wants.”
The original version of this story was published at miamiherald.com on Wednesday, Aug. 31.