I will be doing the coverage tonight on the election for Fox News and election day has already gotten off to a lively start in terms of legal conflicts. There are already dozens of lawsuits from both parties filed across the country. We previously discussed Fetterman’s recent effort to enlist the firm of controversial Clinton lawyer Marc Elias to get a federal court to strike down a Pennsylvania election provision. Now Florida Gov. Ron DeSantis’ administration has told the Department of Justice that federal Election Day poll monitors are “not permitted” inside polling places under Florida law. That could lead to an interesting conflict between state and federal authority at these polling places.
On Monday, the DOJ released a list of 64 jurisdictions within 24 states in which the department plans to send attorneys to “monitor for compliance with federal voting rights laws” on Election Day. The list included Broward, Miami-Dade and Palm Beach counties in Florida.
That prompted Brad McVay, general counsel to Florida’s Department of State, to write to John “Bert” Russ, Deputy Chief & Elections Coordinator Voting Section in the Civil Rights Division. McVay noted that the list “seem[ed] to indicate” that these monitors will be positioned inside of polling places. However, McVay noted that “Section 102.031(3)(a) of the Florida Statutes lists the people who ‘may enter any polling room or polling place’… Department of Justice personnel are not included on the list.”
While there is an easy compromise (used by the Trump Justice Department), Russ could respond that “we are the Justice Department, we do not have to be on a list. We keep lists.”
So if it came to a confrontation, who is right?
Let’s start with the state law. There is an exception to the list for law enforcement under Section 102.031(3)(a):
(3)(a) No person may enter any polling room or polling place where the polling place is also a polling room, or any early voting area during voting hours except the following:1. Official poll watchers;2. Inspectors;3. Election clerks;4. The supervisor of elections or his or her deputy;5. Persons there to vote, persons in the care of a voter, or persons caring for such voter;6. Law enforcement officers or emergency service personnel there with permission of the clerk or a majority of the inspectors; or7. A person, whether or not a registered voter, who is assisting with or participating in a simulated election for minors, as approved by the supervisor of elections.
McVay correctly notes in the letter that DOJ has not explained “the need for federal monitors in these counties. None of the counties are currently subject to any election-related federal consent.”
If there were such pending orders, there would be no question of the authority of federal agents to enter polling places. The DOJ can also argue that, even without such an order or pending matter, it has federal jurisdiction to investigate possible election fraud or voting suppression. Moreover, the law does not require such pending orders. It simply allows for “law enforcement officers” (and not just state law enforcement officers) to enter these polling places.
The letter does not actually state an intent to bar federal officials. It also does not contend that, if DOJ articulated a basis for federal concern, the state would still object. The federal officials could simply show up and force Florida to seek an injunction to remove them. The federal officials would have the edge in such a court challenge.
The Trump Justice Department sent monitors to some polling places in 2020. However, they agreed to remain outside while monitoring conditions. Florida was objecting to the suggestion that the Biden Justice Department intended to station officers inside of the polling places.
There is some indication that the Biden Justice Department will follow the same approach under the Trump Administration and remain outside. However, federal officials could seek entry if they see or hear of a position inside of the polling place. I would be surprised if the state would seek to bar entry in such a case given the concurrent federal jurisdiction in elections.
Here is the letter from McVay: Florida/DOJ letter
55 thoughts on ““[You] are not Included on the List”: Florida Warns the Justice Department on Positioning Federal Monitors Inside Florida Polling Places”
OK, so what happens if the FED’s show up and are not allowed in, or force their way in and get arrested and held until the next day for a magistrate. Federal officials showing up anywhere are a form of intimidation.
As of 11pm ET it looks like the Democratic Party misinformation campaign on Medicare and Social Security worked. No GOP pickups in NE (where the GOP hoped for three) and only one in VA (where the GOP hoped for at least 2). The GOP’s “red ripple” will net about 15 seats nationwide (giving them about 228 seats, a margin of 10 that includes at least 5 RINOs). Senate too close to call (which is bad news for the GOP at this point)
Hopefully the nut jobs in the GOP don’t squander this slim House advantage with all kinds of Fauci and Hunter Biden crap. Stick to the issues you said were important
— Control the deficit by repurposing already appropriated monies and dare the Senate and Biden to veto things that need to get done
— Control inflation by opening up drilling and delivering American energy and dare the Senate and Biden to freeze us to death this winter
Waking up 11/9, I find the NYT estimating the GOP will only net 10 new seats for a 224-211 margin. Even worse than my 228-207 estimate of last night and last week. All the more reason to drop the Fauci and Hunter Biden nonsense and so some actual work…
And if Laxalt pulls out NV and if Walker wins a 12/6 runoff in GA, look for Romney to cross the aisle (the GOP should kick him out of the caucus either way)
Hope Florida wins this. Always remember, it was the States that created the Federal Govt, not the other way around. States have rights.
2 U.S. Code § 7 – Time of election
The Tuesday next after the 1st Monday in November, in every even numbered year, is established as the day for the election, in each of the States and Territories of the United States, of Representatives and Delegates to the Congress commencing on the 3d day of January next thereafter.
Article 1, Section 4
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of choosing Senators.
TUESDAY IS ONE 24-HOUR PERIOD.
TUESDAY IS ONE “DAY.”
TUESDAY, ONE 24-HOUR PERIOD, IS ESTABLISHED AS THE “DAY” FOR THE ELECTION.
THE POST OFFICE IS NOT A DAY.
THE POST OFFICE IS NOT A PLACE.
VOTE-BY-MAIL IS PRIMA FACIE AND DE FACTO UNCONSTITUTIONAL, AND WHOLLY UNNECESSARY.
Turnout was 11.6% in 1788; the Founders never intended for every man to vote, or for one man, one vote democracy in their restricted-vote republic.
Congress, half of the legislative branch, may “alter” election regulations; the DOJ, a subsidiary of the executive branch, and any and all other departments and agencies may not.
The executive branch has no authority to usurp the power of the legislative branch.
Elections must occur at a time and a place.
The Post Office is NOT a day.
The Post Office is NOT a time.
The Post Office is NOT a place.
Citizens, alone as individuals, must put forth the effort to vote.
The Constitution does not require a vote by any citizen.
Some citizens may not be able to vote.
No governmental agency has any charge to assure that every entitled citizen votes.
Citizens may choose not to vote.
Voting is not mandatory.
Live national election coverage:
Sorry but going after parents, Russia Gate, and of course the Disinformation Governance Board. The conniving with Facebook and other social media platforms to bury the Hunter Laptop story. The untold side of Jan. 6. And yes there is an untold side such as why did Nancy postpone the National Guard. The thing about antifa being just an idea and not an organization. And yes I purposely did not capitalize the punk scum group known as antifa, though spell check is screaming at me for not doing it. Let’s see what else. Those and plenty of other things I do not trust them. I kind of despise them. I would not want to work with them on anything. The fed is corrupt as hell and really needs to be gone through. Already the voting machines in lets say Maricopa County are now “breaking”. The tabulators not tabulating after how many weeks of working just fine in the early vote? My what a “coincidence”.
Biden and company have for weeks now been saying you must “accept” the outcome no matter who wins, but its apparent that the who part only applies to one party. That is if your not asleep and just accept any spin the tell you.
Covid was an overblown operation were governors and unelected bureaucrats got to stomp on your rights. Subversive get the vaccine or lose your job bullies. Online bullies. Travel ban bullies. Grandma is dying but cannot visit her bullies. It never came out of China bullies. Bullies in general. Then what? They NOW want a pass on everything they did to you? No thanks.
So now I do not trust the Fed, and in particular the Just Us Dept. Never will again. Not till they go through it several times and fire a few folks. Then lets talk.
I disagree. The Constitution says the state legislature makes the rules. That’s been done. If the clerk and a majority of the inspectors don’t agree then the feds can’t come in.
Don’t need an ugly shootout.
Maybe this is another branch of the DOJ whose funding needs to be reduced by the new congress.
He Jon, why don’t you come out and say that the FBI leaders, Brenan and Obama, and the whole Muller team need to be in jail for investigating the Russia BS when Brannan told Obama it was a dirty political trick by Hillary and the Dem Party in Sep. of 2016. So, why n the hell is it a great wonder that no one trusts the DOJ anymore? Maybe you ought to shame those scum for what they did. Wray ought to be in Jal as should Muller fir treason, and you wonder why they need to GET TRUMP LOL.
WOW ! During the 2020 election, hundreds of legitimate people were kept out or not allowed proper access, and now suddenly the DOJ trumps everything else ?? I live in Florida and I would not “be comfprtale” with them anywhere inside or outside my polling place !
The governor should have armed state agents keep the DIJ agents at bay. If DOJ resists then they should be taken into custody and held until the election is complete.
The “attorney” general should red the statute! Black letter law.
The real question is supposing there is a big GOP victory today, will all the election deniers walk back their obvious lies and fabrications?