Florida Top Cop Pushes Court for Voting Crime Prosecution Power

A Tuesday oral argument over who gets to prosecute voting fraud in Florida pitted a felon accused of unlawful voting against the state’s attorney general who was given expanded powers by the legislature after the 2020 presidential election.

The Fourth District Court of Appeal argument centered on the case of Terry Hubbard, whom the state indicted for allegedly violating the law when he registered and voted in 2020 although he was banned from casting ballots due to a prior felony conviction. But the underlying statute, and a new one the state legislature enacted in 2023 to shore up the state’s prosecutorial power, invade local discretion and violate the law, said his lawyer Craig J. Trocino.

“The state wants to manufacture and create an artificial connection to Leon County where one does not exist” in order to give the attorney general jurisdiction, said Trocino, the director of University of Miami Law School’s Innocence Clinic. “If the state’s theory holds true,” concerns of state law founders worried about prosecutorial overreach will come true “because the state will be allowed to prosecute a single circuit case like this one where nothing happened or was required to happen outside of one county.”

Hubbard’s case is linked to more than a dozen similar prosecutions Gov. Ron DeSantis (R) touted, cracking down on people with felony records allegedly illegally registering and voting in the sunshine state in the 2020 elections. Though a state constitutional amendment was intended to reintroduce voting rights to convicted felons, the state and state courts have pushed back through a series of new statutes and decisions making it difficult to find out whether a former inmate is allowed to vote and how they can get their rights back.

“The Statewide Prosecutor can prosecute voting or election related crimes when they occur in two or more districts when they relate to the same crime,” Alison Preston, deputy solicitor general said. “This is an election that had federal, statewide office, amendment changes. What the state has shown here is good enough.”

Multi-Jurisdictional Crime

Hubbard’s case represents the most serious hurdle state prosecutors have had to overcome to bring local election law violation cases normally left to the state’s 20 circuit state attorneys, the local prosecutors elected by residents in their jurisdictions. State constitutional legal scholars have urged the court to preserve the power of local attorneys that is inherent in the state’s founding laws.

A lower court said the Office of Statewide Prosecution wasn’t authorized to bring these types of cases and dismissed Hubbard’s indictment in 2022. That spurred the state legislature to change the law in an effort to give the attorney general a crack at bringing voting fraud cases local prosecutors weren’t bringing.

The panel of three judges pressed the parties about what conduct needs to be present to make something a multi-jurisdictional crime. Preston argued that sending unlawful voter registration to Tallahassee—Hubbard’s application was filed in Broward County, to get permission to vote in Leon County—was enough.

“If this happened, it was done and completed and finished before any document got sent to Tallahassee. That’s not a necessary element of the crime,” Trocino said, not conceding that a crime was committed. “The fact that a state agency is doing a ministerial function to compile data and send out a card does not create multi-district conduct.”

The case is Florida v. Hubbard, Fla. Dist. Ct. App., 4th Dist., No. 4D22-3429, oral argument held 3/19/24.