Constitutional Law

“[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

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

  1. This is terrific article about the fabled supreme law enforcement entity on the planet. Hint: It is not a glowing endorsement.

    The FBI as it stands should not be an organization that both surveils national-security threats and works on domestic policing. Congress should create a new domestic-intelligence entity similar to the MI5 in the United Kingdom. This way the FBI can focus on solving crimes, while the new agency could focus on preventing acts of terror and rooting out spies.
    https://www.commentary.org/articles/eli-lake/fbi-needs-new-reforms/

  2. Let’s see. This action by DOJ was announced the day before Election Day. Why not two weeks before? Or one month before? Those are, of course, rhetorical questions. Most probably, DOJ did the last minute bit to maximize the theatrics. Also, most probably, they are using the same personnel as the Mar-a-Lago raid.

  3. Probable cause? Plausible cause? The federal government has an irreconcilable conflict of interest in federal elections. Karmic irony.

  4. Where they SHOULD be is in Maricopa County AZ, figuring out why voting machines are malfunctioning

    1. Or Philly where they have changed the rules for counting early votes… again… for the second or third time… as of a minute before the polls opened and clerks could begin opening the early votes. Now, instead they have to wait until the end of the day or tomorrow or Tgiving or Xmas to see if the early ballot submitter also voted today… even though a state court ruled otherwise yesterday

  5. Either position [state v. federal] could manifest in backfired results: some voters could get “turned off” by by the whole thing and decide to just stay home.

  6. Time to lay down their hand. What reasonable suspicion of an election crime or violation do they have to enter in an investigatory capacity without permission? Idle curiosity to just see if things are on the up and up doesn’t cut it based on state law or the Constitution.

    1. What reasonable suspicion of an election crime or violation do they have to enter in an investigatory capacity without permission?

      That “quaint” process has given way to an old school tactic of tyrants:

      Show me the man and I’ll show you the crime. Stalin’s Secret Police Chief, Lavrentiy Beria

    2. currentsitguy,
      I’m not sure. But I would put a few quid, on a letter to the DoJ written by a small cabal of election workers. The letter was actually written by Democrat activist with behind the curtian help from the DoJ. That’s how the DoJ started spying on parents attending school board meetings.

  7. How shameful US election’s have degraded. A most sacred process of being an American given to us by our constitution is being manipulated by a political party I know longer recognize. One can only wonder what life in America will be if we don’t get this election right. Regardless of what political party you identify you WILL feel the pain, with nobody to blame but yourself.

  8. The DOJ has every right to monitor Florida officials, if the goal is to protect constitutional rights. DeSantis is essentially making the Jim Crow argument, that the 10th Amendment (states rights) supersedes the previous 9th Amendment, Article I (Congress’ right to enforce the Constitution) and Article VI of the U.S. Constitution.

    Local and state officials can’t legally pass any law or authority which violates other people’s constitutional rights. Not just rights named in the U.S. Constitution but unnamed rights as well.

    There are also “constitutional-statutes” under federal law. Federal laws that define what a constitutional violation is and what the range of penalties are (ie: Voting Rights Act, Title 18 US Code 245, etc).

    DeSantis should thank George W. Bush for giving us a “Preemption & Prevention Doctrine”. Bush and friends essentially amended the Constitution illegally, without the legally required constitutional amendment process.

    Bush unintentionally made the Voting Rights Act more powerful. The DOJ is simply “preempting” Jim Crow practices by Florida officials!

    1. The DOJ has every right to monitor Florida officials, if the goal is to protect constitutional rights.

      Not even close to reality. Police need probable cause to force their way into private spaces.

    2. Nope. The DOJ claims it could “chill” voters. Tell ya what scooter what is more “chilling”. Somebody watching the vote counters or the Just Us Dept. watching over your shoulder after everything they have been caught at? You tell me. And NO they do not have that right. The FED and to many people like you forget that states have rights to. Just hush.

  9. So the Trumplican party of Florida that insisted that they have nothing to hide, is now insisting they don’t want anyone to see what they are hiding. If Florida is doing nothing wrong, let them prove it.

    1. Only after the left wing allows the Dominion machines to be audited – and explains the 203k more votes than voters in PA. (Fact – Rep Russ Diamond’s report – available at his official website).

  10. The statute does say law enforcement officers may be there, BUT only “with permission of the clerk or a majority of the inspectors”; I would think those folks will have to vote on letting the DOJ/FBI partisan hacks in the door.

    1. The phrase “barrel of a gun” was used by Mao Zedong. Who was by all accounts was one of the greatest tyrants of the 20th century.

  13. So in this policing action will the DOJ use the FBI to do its bidding? Be warned Florida big brother is watching you. I’m just wondering if the DOJ will also be sending agents to Pennsylvania to oversee elections there? What are the odds?

  15. I live in that area and I am convinced that this is an effort to gin up a voter suppression narrative.
    This is being used as both a get out the vote move and to establish a predicate for declaring the election tainted.
    Florida elections are county controlled. These are the most Democratic leaning countries in the state.
    Why would Democrats be worried about shenanigans?

  16. There is something refreshing about a state asserting its sovereignty in the face of federal presumption. The DOJ has only itself to blame for any skepticism with which its actions are met. They have turned a blind eye to Democrat malfeasance for too long.

  17. As far as poll watchers, it seems DeSantis is just engaging in a faux-battle, acting as if DOJ watchers are coming with some evil plot to disrupt the voting or disrupt the results afterward. There is just so much paranoia and speculative grievance going on. It would be better to confidently say, “observers are OK, but any attempts at interference will justify ejection of the observer”.

    Then again, performative theatrics is a bug and a feature of our political system, especially up until the polls close tonite.

    1. Re: DOJ

      Where the hell have you been since the govt took out JFK, RFK & MLK?

      Come on, enough with the Gas Lighting.

  18. Voting machines are malfunctioning all over today. Dems are at it again. Election Day Voter suppression, Democrat-style. Election steal is underway.

    1. Proof?

      Oh who needs proof , trump proved that in 2020-21 when he went with 60 court losses due to lack of proof.

      1. Did those courts hear any “evidence”? Don’t think so.

        The election day voter suppression ‘steal’ is on! If poll workers are telling you there is trouble with the machines, stay in line! Report it and stay in line. Democrats know the massive election day turnout that is expected to vote Republican so they are SUPPRESSING the vote by creating “voting machine malfunctioning”…..hoping people get out of line and leave without voting!

        DEMS are SUPPRESSING the VOTE. Make no mistake about what they are doing today. Stay in line if you can.

        1. Election deniers are such incredible people. So trumps lawyers yelled fraud, fraud, its everywhere, as they were outside the court house. When they went into the court house and the judge said, so show me the fraud. The trump lawyers said, we’re looking. Don’t have it yet, but it’s there. So here we are 2 years later and still, yell fraud, no proof of fraud. Just like all the comments here. It’s here, it’s there, it’s everywhere, everyone knows it. But as far as actual proof? NADA, ZIP, ZERO, crickets.

          1. The modern totalitarian right does not believe in proof, facts, or truth. The lie works just fine for them.

            1. One has to laugh listening to FW. He hasn’t provided proof of anything since he arrived. His ooments are all empty.

          3. You were wrong on the court cases and now you want to double down with more nonsense? Why? You seem not to know anything.

      3. BREAKING: Now issues reported with machines in Wickenburg, AZ, northwest Maricopa.

        Worker tells the voter to stop filming.

      4. You are wrong and don’t even know it. Where do you get your news? Of the court cases where merit was involved Trump won 18/25. The rest of the cases were meaningless.

  19. Congress may “alter” election regulations; the DOJ may not.

    Elections must occur at a time in a “PLACE” – the mail distribution system is not a place.

    Citizens must put forth the effort to vote; citizens entitled by the State to vote may choose not to participate.

    Voting is not mandatory.
    ___________________

    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.

  20. The DOJ is positioning activists to protect democrat votes.
    Nothing less sinister than this.

    1. maybe the Democrats will agree that the GOP government can send the military, 100,000 IRS agents, DOJ, DHS, etc to monitor polls in the next election?

    2. Proof?

      Oh that’s right, again no proof needed. If you believe it it is truth. Sheeeeeeeeeeesh

Comments are closed.