Appellate courts to decide if statewide office has power to prosecute voter fraud cases

It has been more than a year since Gov. Ron DeSantis announced the arrests of 20 people across the state who allegedly voted illegally in 2020 elections.

DeSantis touted the arrests as cracking down on election fraud, a national hot-button issue for Republicans after former President Donald Trump’s loss in the 2020 election and his subsequent false claims of voter fraud. However, not long after the arrests were announced, judges started dismissing cases, ruling that the Office of Statewide Prosecution did not have jurisdiction.

After cases were dismissed in circuit court last year, the Legislature in February amended state law to “make abundantly clear” that the Office of Statewide Prosecution has authority to bring these cases, the state has said in court documents — addressing the reason judges early on were throwing them out of court.

Statewide prosecutors have argued that they have had the authority to prosecute these cases all along, even before lawmakers amended the statute earlier this year, and that the judges erred in their decisions. Advocates and defense attorneys disagree. Some experts believe the question of the office’s authority will be decided by the Florida Supreme Court.

The Florida Department of Law Enforcement previously released the names of 17 of the 20 people whose arrests were announced. Five of the 17 remain pending in multiple counties, including two in Palm Beach County and one in Broward County, and at least three are pending before district courts of appeal.

Some cases ended with guilty pleas and probation sentences, court records show. At least one went to trial, resulting in a split verdict, and a trial is scheduled for next month in one Orange County man’s case.

Judges in Broward and Miami-Dade counties last year and earlier this year dismissed the cases against Robert Lee Wood, 57; Ronald Lee Miller, 59; Terry Hubbard, 65; and Eugene Suggs, 67.

The state appealed each of them, and all but one are still pending. Statewide prosecutors voluntarily dismissed their appeal in Suggs’ case, his defense attorney Lawrence Wolk said.

After multiple requests by email, interviews with statewide prosecutors were not arranged by the Attorney General Office by Friday night.

‘Voter confusion’

Florida voters passed Amendment 4 in 2018, which restored voting rights for people convicted of felonies. Not included, though, were people convicted of murder and sex-related offenses. DeSantis’ office said that each of the 20 arrested were convicted of those crimes.

Experts and attorneys described the process for people to determine whether they were eligible to vote after the amendment as chaos or “nearly impossible” for the everyday citizen.

Many of the accused believed their voting rights were restored by the 2018 amendment, and they received voter registration IDs after applying before allegedly voting in their respective counties, according to probable cause affidavits.

Luis Villaran, 64, of Delray Beach, voted in the 2020 primary election and the 2020 general election, according to a probable cause affidavit. He was convicted of a sexual offense in 2014.

He told officers in an interview last year that he made a “mistake” when he checked the box on the application indicating his voting rights were restored, the affidavit said. “Maybe I am confused,” Villaran told investigators. He ultimately entered a plea agreement earlier this year and was sentenced to six months probation and credit for his one day spent in jail, court records show.

Patrick Berry, voting rights counsel at the Brennan Center for Justice, said nearly all of the 20 people whose charges were announced “were either confused or misled about their eligibility to vote.” The center filed amicus briefs in support of those arrested in several appeals cases.

More than 85,000 people who were convicted of felonies completed voting applications in the 16 months after Amendment 4 was approved, Division of Elections officials said, according to an amicus brief filed by the Due Process Institute in support of one of the men arrested. A federal court in 2020 said it could take until 2026 at minimum to screen all of those applications, the brief said.

“The state is claiming on appeal this unprecedented power to punish what is essentially isolated incidents of voter confusion that the state itself caused by making voter eligibility for people with past convictions nearly impossible to determine,” Berry said.

Leo Grant Jr., 56, of South Bay, was convicted of a felony sex offense in 1999. When he spoke to officers last year, he said he remembered getting paperwork in the mail about his right to vote, a probable cause affidavit said.

His defense attorney Kevin Anderson said Grant voted in the 2020 primary and general elections after registering and receiving voter documentation in the mail.

“There wasn’t a screening process to stop him,” Anderson said. “The screening process is his arrest … Now, had the screening process stopped him in the beginning … or everyone else, then we wouldn’t have all these arrests.”

Grant’s case is still pending in Palm Beach County with his next court date later this month.

Robert Simpson, 65, of Pahokee, was convicted of second-degree murder with a firearm in 1992. His case is also pending in Palm Beach County.

The first time he voted in his life was in the 2020 general election, he told officers, according to a probable cause affidavit, after registering in 2019 upon hearing that voting rights had been restored for people convicted of felonies. Eisinger said his client got multiple voter registration cards, “alerting him in his mind that he was eligible to vote.”

He received a letter in the mail from the Palm Beach County Supervisor of Elections about his “potential ineligibility to vote” in June 2022, according to the affidavit — after he had already allegedly voted in elections in 2020, 2021 and 2022.

“He really did not believe that he was doing anything unlawful,” Eisinger said. “He thought he had the ability to vote.”

Simpson will likely have a trial date some time in early 2024, Eisinger said.

“For someone who hasn’t been in trouble for a while, it was definitely shocking to him, and he was pretty surprised that these were the charges they were sort of investigating,” Eisinger said.

Some defense attorneys said their clients had no willful intent to illegally vote, which is something the state would have to prove.

Davis, defense attorney for Wood, whose case is pending in the Third District Court of Appeal, said he would argue that point if his client ends up going to trial — “that he had no intent to break the law.”

Statewide prosecutors wrote in a brief in Miller’s appeals case that Miller falsely affirmed he was eligible to vote, and “had he been truthful, he could not have registered.”

“How can you have specific intent to defraud when you’re issued a voter registration card from the state of Florida that tells you, go ahead, vote?” said Miller’s attorney Robert Barrar. “I mean, to me it’s as simple as that.”

Since the Office of Elections Crimes and Security’s creation in 2022, it received over 2,000 complaints of alleged election law violations or “irregularities,” its first annual report published in January 2023 said. The office “conducted hundreds of preliminary investigations, with many resulting in criminal referrals to law enforcement,” the report said, and secured “a number of criminal convictions” while others were pending at the time of the report.

It is not clear how many arrests have been made in total since last August. The Department of State will publish its second annual report next month.

Law change

Prosecutors have asked for oral arguments in the appeals cases of Miller and Wood in the Third District Court of Appeal.

The law they and the others were initially charged under said the Office of Statewide Prosecution had authority to prosecute election crimes that occurred in more than one county as part of a related transaction or that was connected with an organized criminal conspiracy that affected more than one county. The change earlier this year removed the conspiracy element and said it need only occur in or have affected two or more counties.

The Legislature amended the statute to “make abundantly clear” that the Office of Statewide Prosecution can prosecute election-related crimes that affected multiple counties, the state said in its briefs in Miller’s appellate case. Statewide prosecutors argued in the briefs that the new law, which took effect immediately, applies.

Even before the amendment change though, the state said in its briefs, they had authority because Miller’s alleged crime occurred in Miami-Dade County where he registered and voted and in Leon County where his application and vote was sent.

Statewide prosecutors also argued in its initial brief that the alleged crime affected the entire state of Florida by creating mistrust in election integrity and by affecting an election’s outcome, which “may well decide close elections that determine how Florida is governed.”

“Voter fraud strikes at the heart of our democracy. In two ways, its pernicious effects reverberate across the whole state,” the state wrote.

Patrick Yingling, partner at Reed Smith who has filed amicus briefs in the cases, said the state “relies so heavily on the new law to try to relive their case.”

“I think that issue of whether the new law can be applied retroactively is going to be front and center in a lot of these appellate cases,” Yingling said.

Wood’s defense attorney Davis said there’s not been a decision about whether the new law will apply retroactively; he said that is part of the appeal. He argues that under either the new or old statute, they still don’t have jurisdiction.

Rutgers Law School Professor and state constitutional law expert Robert F. Williams said when the Office of Statewide Prosecution was created by constitutional amendment in 1986, it was granted the limited authority to prosecute organized crime that occurred in more than one judicial circuit.

The state has argued that the alleged criminal acts of registering and voting in Florida counties created a domino or ripple effect, impacting more than one county in the state. But the creation of the statewide office in 1986 “never authorized a ripple effect,” Williams said.

Williams, who has filed an amicus brief in at least one of the appellate cases, said the question of whether the new law can apply retroactively is irrelevant; he believes there needed to be a constitutional amendment passed by voters in order to expand the Office of Statewide Prosecution’s authority rather than by passing a law.

“In a simplified sense, we say to do what they want to do, they would have had to propose a constitutional amendment that the people of Florida might have voted for or might not have voted for …” Williams said.

Barrar said he believes the change to the statute only bolstered his and the circuit court judge’s position.

“The fact that whoever the powers may be that thought they needed to amend the statute, to me it tells me I was right because if I wasn’t right, why would they amend the statute?” Barrar said. “Of course the judge was right in dismissing it.”

Defense attorneys said the local state attorneys’ offices across the state could have brought the charges against their clients and their jurisdiction would not have been questioned. While some state attorneys’ offices have filed such charges, like in Alachua County, others have chosen to not.

In June 2022, the Lake County State Attorney’s Office said in a close-out memo they would not prosecute six people who were alleged to have illegally voted because the evidence did not show willful intent, writing in the memo that they “were mistakenly issued registration cards.”

“There is a fundamental fairness aspect of this that I think probably a lot of state attorneys have recognized and therefore not pursued charges, given the circumstances of how this all arose,” attorney Yingling said.

‘Wait and see’

The Office of Election Crimes and Security in its January report said that the 2020 and 2016 presidential elections created an “increased awareness and heightened scrutiny” of the process nationwide and that its goal is improving the integrity of Florida’s elections.

“Enforcing Florida election law has the primary effect of punishing violators, but also and equally as important, acts as a deterrent to those who may consider voting illegally or committing other election related crimes,” the report said.

Professor Quinn Yeargain, an assistant law professor at Widener University Commonwealth Law School and state constitutional law expert, said in their opinion the arrests were intended to “chill anybody who has ever been convicted of a felony from voting.”

“It’s going to make them afraid and that is one of the big problems here,” Yeargain said. “It’s for that reason that I think any time we bring the criminal law to bear in the election context, we should be so skeptical and so, so wary of doing so.”

Yeargain, who has also joined amicus briefs in at least one of the cases, said “the odds are very high” that the district courts of appeal will come to different conclusions about the statewide office’s authority and that it is a matter of when rather than if it goes before the state Supreme Court.

Barrar said he believes the prosecutions are “nothing more than political theater.”

“He’s just trying to put this behind him and go on with his life,” Barrar said of his client Miller. “It obviously caused him a great deal of trauma initially, and (he) was very pleased of course that the case was dismissed. And he, like everyone else who is pending before the district court of appeal, is anxious for the ruling. We all just have to wait and see.”