“[You] are not Included on the List”: Florida Warns the Justice Department on Positioning Federal Monitors Inside Florida Polling Places

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; or

7. 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