Who Has the Authority to Prosecute People Accused of ‘Voter Fraud’ in Florida? 

Florida has made it nearly impossible for people with felony convictions to determine whether they are eligible to vote. Now, it’s using a statewide office created by amendment to the state constitution to combat organized crime to prosecute honest mistakes as “voter fraud.”

In August 2022, Florida’s election police partnered with statewide prosecutors, as opposed to local prosecutors, to charge 20 people convicted of murder or a felony sex offense who mistakenly voted while ineligible in the 2020 election. On March 19, a Florida appellate court is set to review the case of one such man, Terry Hubbard, whose case was dismissed after a trial court determined that statewide prosecutors lacked authority to prosecute him. The case has wide-ranging implications for the balance of power in state government, the structure of prosecutorial power, and democracy in Florida.

The saga that has embroiled Hubbard and 19 others started in 2018 when Florida voters approved Amendment 4, which restored voting rights to most people with felony convictions, other than those convicted of murder or a felony sex offense, “upon completion of all terms of sentence including parole or probation.” In 2019, the Florida Legislature adopted a law to “implement” the new provisions — by requiring the payment of certain court-imposed debts that were incurred as a part of a person’s sentence before they could vote. The legislation prompted a multi-year battle that played out in state and federal court, with the conservative U.S. Court of Appeals for the Eleventh Circuit holding, just before the 2020 election, that the law was constitutional. However, it is nearly impossible for people with felony convictions to determine if they are eligible to vote. As one dissenting judge on the Eleventh Circuit noted, “there is no single source that collects information” on outstanding fines and fees. Making matters worse, Florida sends voter information cards to all newly registered voters, including those it later determines to be ineligible. The state has also refused to meaningfully educate the public about Amendment 4, leading to widespread confusion among citizens and government officials.

As a result, people like Hubbard have mistakenly thought they were eligible to vote. Some local prosecutors — known as state attorneys in Florida — have declined to bring charges in such cases given the lack of criminal intent. So, in 2022, the governor tapped the Office of Statewide Prosecution — an office created by constitutional amendment in the 1980s to combat organized crime — to pursue fraud charges against Hubbard and others identified by the state’s election police.

The charges against Hubbard were dismissed by a lower court, which found the statewide prosecutor didn’t have jurisdiction to prosecute him. Trial courts hearing cases of four other people in Hubbard’s situation — in Broward, Orange, and Miami-Dade Counties — have come to the same conclusion. The state has appealed those dismissals, and the cases are currently pending before Florida’s Third, Fourth, and Sixth District Courts of Appeal.

The state is asking the appellate court in Hubbard’s case to decide who has authority to prosecute those accused of registering or voting while ineligible in Florida: state attorneys, who have a state constitutional duty to represent the state in criminal cases arising out of their respective circuits? Or the Office of Statewide Prosecution, which only has constitutional authority to pursue complex, multi-circuit crimes like organized crime? The court in State of Florida v. Hubbard is set to hear oral arguments on this question on March 19.

As we argue with Rutgers University professor G. Alan Tarr in an amicus brief, this question cannot be answered without the broader context of the Florida Constitution, which establishes the state attorney as the prosecuting officer for all crimes in their respective judicial circuits. (There are 20 state attorneys in Florida, one elected in each of the 20 circuits.)

This authority reflects generations of democratic experimentation to consolidate prosecutorial power under direct local control. During the 19th century, Florida, like many states, experimented with different types of local prosecutors with frequently confusing and overlapping authority. None of these prosecutors had constitutional duties. The constitution merely noted that the boundaries of their respective roles were “prescribed by law,” giving the legislature wide latitude to expand centralized control over them. In 1972, however, voters approved a constitutional amendment that consolidated prosecution under locally elected state attorneys and designated them as “the prosecuting officer” in their circuit — giving constitutional duties for the first time in state history.

During the 1970s and early 1980s, Florida struggled to combat organized crime and other complex criminal activity that spanned more than one circuit. Because state attorneys can only pursue crimes within their own circuit, Florida experimented with different approaches for addressing multi-circuit crime at the state level. But these efforts ultimately proved unsuccessful, leading then-Gov. Bob Graham to establish a commission tasked with developing recommendations for a statewide agency to combat “the threat that organized criminal activity poses to the quality of life of the citizens of Florida.” The commission recommended that Florida amend its constitution and enact enabling legislation to establish a statewide office to address Florida’s “significant problem of organized crime.”

To minimize the potential for conflict between the new statewide office and state attorneys, the commission recommended enabling legislation that would limit the statewide office’s jurisdiction to crimes that occurred in or affected two or more judicial circuits. Going even further, state attorneys persuaded the legislature to place the multi-circuit limitation into the text of the constitutional amendment as opposed to its enabling statute, to prevent future expansion of the office’s authority via statute. The legislature also declined to authorize the new office to prosecute single-circuit public corruption cases. The legislature referred the proposed amendment to the ballot and it was approved by voters in 1986, creating the Office of Statewide Prosecution, which opened its doors the next year.

For almost four decades, the office focused on multi-circuit crimes that would be difficult for one state attorney to pursue, such as organized fraud and human trafficking. But in 2022, after the governor complained that some state attorneys were not prosecuting so-called voter fraud, statewide prosecutors began to charge people like Hubbard.

The trial court in Hubbard’s case got it right when it determined that the statewide office lacks authority because his alleged offenses (registering and voting while ineligible) only occurred in one circuit. In response, the legislature amended the statewide office’s enabling statute to purportedly empower the office to prosecute all voting crimes, including those that only occur in or affect one circuit.

But the multi-circuit limitation is in the constitution itself. State legislatures are constrained by their state constitutions and cannot act beyond their limits, as the Florida legislature has attempted here. Had the legislature, in 1986, wanted to authorize the statewide office to have far-reaching jurisdiction, it could have placed the multi-circuit limitation in the office’s enabling legislation, where a future legislature would have been free to modify it without amending the constitution. But it declined to do so.

The text and drafting history of the constitutional provision limiting the statewide prosecutor’s role underscores that the office was meant to supplement, not supplant, state attorneys. Unlike the broad authority that the constitution grants to state attorneys, the provision’s drafters carefully circumscribed the statewide office’s jurisdiction to prevent overreach and preserve the primacy of the state attorney over single-circuit crimes.

Moreover, Florida is one of few states where the powers of the local prosecutor are specifically conferred by the constitution. The powers of the state attorney should be interpreted with the uniqueness of the position in mind, further counseling for a narrow interpretation of the legislature’s ability to infringe upon them.

With these prosecutions, the state is claiming unprecedented power so it can prosecute honest mistakes as “voter fraud” and intimidate eligible voters. The courts hearing these appeals must reject these unlawful prosecutions for the sake of Florida’s democracy.

Oral argument took place on March 19 and can be watched here. Argument in a related case, State of Florida v. Miller, is scheduled for May 21 at 9:30 a.m. and can be watched live here.

Robert F. Williams is a distinguished professor of law emeritus at the Rutgers University School of Law.

Quinn Yeargain is an assistant professor at Widener University Commonwealth Law School.

The Brennan Center filed an amicus brief in this case.