Who’ll prosecute election fraud in FL: elected state attorneys or appointed statewide prosecutor?

Activists rallied for Amendment 4 outside a federal court in Tallahassee on Monday, Oct. 7, 2019.

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A state appeals court heard arguments Tuesday over whether prosecution of elections crimes should be handled by locally elected state attorneys or by a statewide prosecutor who answers to Republican politicians in Tallahassee.

The case before the Florida Fourth District Court of Appeal in West Palm Beach arose from Gov. Ron DeSantis’ push to punish people who voted despite being ineligible under 2018’s Amendment 4, which restored voting rights to most former felons if they have paid any court-imposed fines, fees, or restitution.

Florida Fourth District Court of Appeal courthouse in West Palm Beach. Source: Fourth DCA

Specifically, it involved Terry Hubbard, one of 20 former felons targeted by DeSantis’ new Office of Election Crimes and Security for voting in violation of Amendment 4, which excluded murderers and sex criminals; in 1989, when he was 31 years old, Hubbard was convicted of sex battery by an adult against a victim under 12 years of age and lewd and lascivious assault on a child under 16 years of age, both felonies, according to court records. He’s still registered on the state’s sex offender list. However, his criminal past is not directly at issue in this case.

Like others who were charged, Hubbard argued that he assumed he was allowed to vote because elections officials had sent him a voter registration card.

Many of these cases, which centered on Democratic-leaning counties, fell apart in court in part because of evidentiary or jurisdictional problems. In Hubbard’s case, Circuit Judge George Odom Jr. in Broward County ruled in December 2022 that the Office of Statewide Prosecutor lacked constitutional authority to charge the case. Another factor is that the state still lacks a central database to allow former felons to clarify what, if any, financial legal obligations they’re bound to pay before they can recover their voting rights.

It was the state’s appeal of that ruling that was before the Fourth Circuit Tuesday. The participating judges gave no indication of when they might rule, but the outcome could determine whether these charging decisions will be made within local communities or by an appointed official in the state capital. DeSantis, a self-described “law and order” governor who’s been open about asserting his power to the maximum extent possible, lamented during an August 2022 press conference announcing the arrests that local prosecutors weren’t charging enough election crimes.

“I do think there’s probably some prosecutors that have been loath to take these cases. Well, now we have the ability with the attorney general and statewide prosecutor to bring those on behalf of the state of Florida,” DeSantis said at the time.

Similar cases are pending before the state Third, Fourth, and Sixth District Courts of Appeal, according to an analysis by the nonpartisan State Court Report and the question ultimately could land before the Florida Supreme Court.

Elections fears

Despite what was universally praised as an efficient and fair elections administration in 2020 but, following Donald Trump’s Big Lie that he had won reelection, DeSantis and the Republican political establishment began emphasizing election integrity, passing laws making it more difficult to vote and for voting-rights groups register people to cast ballots.

Part of that effort was the creation of the election crimes office, with prosecutions to be handled not by local state attorneys but the Office of Statewide Prosecutor. The attorney general fills that post from a list of names forwarded by the Florida Supreme Court Judicial Nominating Commission, whose members the governor appoints.

In court Tuesday, Allison Preston of the Florida Attorney General’s Office argued Tuesday for reversing Judge Odom’s dismissal of the charges.

“His aim was to vote in the 2020 election. That is one of the most important transactions someone can engage with the state in, but for Mr. Hubbard we allege that that transaction was criminal because he knew that he couldn’t vote but registered and did anyway,” Preston argued of Hubbard.

And to register, Hubbard had to falsely affirm that he either wasn’t a convicted felon or had had his civil rights restored, she continued.

Two circuits?

Preston insisted the alleged crime transpired in two judicial circuits — the Seventeenth, in Broward County, and the Second, including Leon County, home to the state Division of Elections, which processed his registration form. That was enough to invoke statewide prosecutorial authority, she said.

Additionally, Preston said, the Legislature voted in 2023 to no longer require commission of a criminal conspiracy to bring in the Office of Statewide Prosecutor. She argued for applying the law retroactively, since Hubbard’s dismissal predated the statutory change.

That doesn’t implicate Hubbard’s substantive rights, she added. “Any sort of lingering concerns of like a gut-sense of unfairness” around the case would be misplaced for this reason, Preston said.

Judge Dorian Damoorgian of the Florida Fifth District Court of Appeal. Source: Fourth District

Participating with judges Melanie May and Jeffrey Kuntz in a three-judge panel, Judge Dorian Damoorgian questioned whether any involvement by the state agency raised a legitimate multi-circuit concern.

“There’s a difference between a state agency in another circuit taking action based upon information that’s provided to it, such as issuing a license or issuing a permit, versus just the state keeping statistics so that counties, for example, may be required to report certain things to a state agency but it doesn’t require anything other than a state agency being a clearinghouse,” Damoorgian said.

Preston replied that the agency’s involvement goes beyond that level and therefore can meet the multi-circuit requirement in a case arising from an election involving state, local, and federal races and proposed constitutional amendments.

Limited jurisdiction?

Craig Trocino, arguing on Hubbard’s behalf, noted the charges against his client: false swearing, meaning submission of false voter registration information, and willful voting by an unqualified person.

Craig Trocino. Source: LinkedIn

“Nothing in those statutes alleging criminal conduct has any requirement that anything be done outside of Fort Lauderdale or outside Broward County,” Trocino said.

“All it requires is the signing and executing of the voter registration form and all it requires is voting. Those acts in the stipulated facts all occurred exclusively in Broward County. This is a single-circuit case,” he continued.

“The state wants to manufacture and create an artificial connection to Leon County where one does not exist.”

Trocino also argued the new statutory language should not apply in a case brought and dismissed by a trial judge before the new language became law; criminal statutes can only apply prospectively, he said.

“If this [the alleged crimes] happened, it was done and completed and finished before any document got sent to Tallahassee at all,” Trocino said.

He added that the authors of the 1986 constitutional amendment creating the Office of Statewide Prosecutor wanted to limit its reach to organized crime and criminal conspiracies, to avoid infringing on the authority of locally elected state attorneys under the Florida Constitution.

Also, that in changing the law in 2023, the Legislature could have specified that voting crimes are deemed to have affected all circuits but did not. Under the circumstances, “this court can infer that they intended not to do that,” Trocino said.

The amended law may also prove unconstitutional to the extent that it expands the statewide prosecutor’s power beyond what the office’s creators intended, he added.

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