Last month, Florida Gov. Ron DeSandis announced the first charges stemming from a fledgling election police unit he helped establish in the state. But in the weeks since, complicated information has emerged that could make it harder for the state to secure convictions, advocates and at least one prominent Republican official said.
Voting rights advocates blame what they describe as a confusing process that makes it difficult for either suspects or election officials to tell whether they are eligible to vote.
All 20 people had previously been incarcerated on murder or felony sex offense convictions — which bar them from voting in Florida — and had voted illegally in the 2020 election, DeSantis said at the August news conference announcing the charges. Under Florida law, while many felons can regain their voting rights under a constitutional amendment enacted through a 2018 ballot initiative, those convicted of the most violent crimes, such as murder and rape, cannot.
“This is just the first step,” DeSantis, who is widely believed to be considering a run for president in 2024, said at the press conference. “Before we propose this [new office] there have been examples of this material appearing to fall through the cracks.’
Advocates claim that those arrested did not know they were breaking the law — and that in many cases government officials had sent them voter registration materials. Many have now urged those arrested to fight the charges. They also raised questions about whether the new police force is the best way to fix a broken system and lamented the lack of a central database that could help officials avoid unnecessary criminal charges.
“Clearly no one informed them” that they did not have the right to vote. “They sent them voter registration cards, that’s the exact opposite of the intent to break the law, they basically purged them,” Republican Sen. Jeff Brandes, the architect of a separate 2019 law that made it harder for ex-felons to vote, said in an interview.
“This makes it incredibly difficult to prove intent,” Brandes added. “State prosecutors are going to have a very difficult time proving that they did it on purpose,” he said. Brandes predicted the charges would eventually be dismissed.
Under Florida law, for people to be convicted of voter fraud, the state must prove they intentionally and knowingly registered to vote — or voted — even though they knew they weren’t eligible to do so.
“I just don’t know how you prove your intent to break the law for someone who thought they had the right to vote because they received a state-approved voter registration card,” said Neil Volz, deputy director of the Florida Coalition for Rights Restoration. which helps many of those arrested find lawyers and pay for bail.
Incidents of voter fraud are incredibly rare in the US, and past and present investigations by law enforcement agencies across the country have struggled to find more than a handful of cases amid the millions of ballots cast in America.
A new police force and a confusing system
DeSantis signed a bill in April that formally created a police force dedicated to pursuing voter fraud and other election crimes — a top priority for Republicans amid former President Donald Trump’s ongoing false claims that the 2020 election was stolen from him.
Then in August, DeSantis announced the first arrests made by that force, revealing at a press conference that the Office of Election Crime and Security would charge 20 people with previous convictions for murder or felony sex offenses. Florida’s 2018 amendment ended the permanent voting ban on felons, except those convicted of murder and felony sex offenses. This rehabilitation, however, also excluded convicted felons who had not completed “all the terms” of their sentence. In 2019, Florida lawmakers – led by Brandes – enacted a law that included in those terms the payment of all court fees and fines.
Brandes and Volz said the years since then have created a maze of records about who is and isn’t eligible to vote in the state, which they said is a central factor in why many of the people arrested believed or simply didn’t. they knew if voting rights had been restored. They and other voting rights advocates point out that the state never created a central database that could be used to effectively cross-reference and determine which people who had been through the criminal justice system could and could not vote.
Of the 18 people who have reported being arrested so far on the charges, many said they received a voter registration card from the county Supervisor of Elections office and believed they were eligible to vote, while some said they returned the registration cards simply to determine whether were eligible to vote, according to court documents reviewed by NBC News and reported by the Miami Herald and other media outlets.
In a lengthy email, a spokesman for the Florida Department of State — of which the Office of Election Crime and Security is a part — said the onus to determine whether a felon was eligible to vote fell on the individual.
The spokesman, Mark Ard, described a complicated and often time-consuming process through which various state agencies check against each other to determine the eligibility of felon voters and suggested that people broke the law by simply returning the registration materials, even though the materials in many cases they were sent to individuals by election officials.
“Disenfranchised felons applied for voter registration (which is itself a felony) and then voted,” Ard said.
Ard also said county supervisors of elections — among the officials who sent such materials — had the authority to take action to remove a voter from the statewide voter registration system.
“Nothing prohibits a supervisor of elections from acting independently of the Department to collect this information,” he said.
“These individuals lied when they registered to vote. They were never eligible and there is no confusion at this point. We are confident that when all the facts and evidence are revealed through the legal process, the reasons these people were arrested will be clear,” Ard said. A spokesman for DeSantis did not respond to questions from NBC News about the matter.
Election Crimes Bureau Director Peter Antonacci, however, sent a letter to county election supervisors in the state saying they had done nothing wrong, Politico reported this week. NBC News has not received the letter.
Brandes and Volz say the state is to blame, even though the materials were sent by local campaigners.
“At the end of the day, the state is responsible for determining voter eligibility for the individuals on the state’s voter rolls,” Volz said. He also said he would be surprised if the charges stick.
Volz, whose group works with many of the people charged, said no one — either the county’s election supervisor office or the state — had informed any of the people arrested that they were ineligible to vote.
“There is no evidence that happened,” he said.
Moving forward, Volz and Brandes say the Florida Department of State should create well-maintained databases of Floridians convicted of murder or felony sex offenses, as well as convicts who still owe money for court costs, and to update the electoral rolls accordingly.
“County supervisors of elections do not have the resources or access to multiple databases that would allow them to make this type of determination,” Brandes said.
This article was originally published on NBCNews.com