Yesterday we reported that Biden’s ‘Justice’ Department had announced it was sending officials from their Civil Rights Division to 64 jurisdictions around the country to “monitor for compliance with federal voting rights laws” on Election Day. The list of jurisdictions included the Florida counties of Miami-Dade, Broward, and Palm Beach.
This prompted quick action by Florida. By now, you probably know that DeSantis –- to his credit –- has stood up to the feds on this, but now we have details on how it went down, plus analysis by law professor Jonathan Turley. Here’s how it unfolded...
Garland’s planned intrusion looked to Florida officials like the massive exercise in control it was. The State of Florida did not need babysitting, especially in their own polling places as had been specified, so Brad McVay, general counsel to Florida’s Department of State, wrote to John “Bert” Russ, Deputy Chief & Elections Coordinator of the Voting Section in the Civil Rights Division of the DOJ, noting that the list of jurisdictions “seemed to indicate” that these monitors would be positioning themselves inside the polling places. McVay went on to note that “Section 102.031(3)(a) of the Florida Statutes lists the people who who ‘may enter any polling room or polling place’...Department of Justice personnel are not included on the list.”
He told Russ that the DOJ had not explained “the need for federal monitors in these counties. None of the counties are currently subject to any election-related federal consent.” And, indeed, that is true. Elections are run by the states. At the very least, the feds should be able to articulate a good reason for sticking their noses in, and they didn’t do that.
The law McVay quoted back to Russ says, “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,” with certain exceptions, one of which is “law enforcement officers or emergency service personnel there WITH PERMISSION OF THE CLERK OR A MAJORITY OF THE INSPECTORS.” (Emphasis ours.)
H wrote: “Even if they could qualify as ‘law enforcement’ under [the Florida statute], absent some evidence concerning the need for federal intrusion, or some federal statute that preempts Florida law, the presence of federal law enforcement inside polling places would be counterproductive and could potentially undermine confidence in the election.”
As Prof. Turley explains, the DOJ could still argue that even without a pending order relating to some issue at the polls, “it has federal jurisdiction to investigate possible election fraud or voter suppression.” (Well, wouldn’t they have to provide evidence of THAT?) He also says the law doesn’t actually require a pending order. “It simply allows,” he says, “for ‘law enforcement officers’ (and not just state law enforcement officers) to enter these polling places.”
McVay’s letter doesn’t actually say, “Just try it, you jackboots, and we will bar you from entering.” That’s probably because he legally wouldn’t be able to bar them without first obtaining an injunction to have them removed. So, what would happen if the DOJ just showed up at the polling places, demanding to be let in? Florida would have to run to court to seek that injunction, and the feds, according to Turley, would have “an edge” in such a challenge, though he doesn’t explain why and I would really like to know.
He does note that President Trump’s Justice Department sent monitors to some polling places in 2020, but they remained outside, just to monitor general conditions. Biden’s DOJ apparently was planning to station their monitors INSIDE the polling places. Big step.
Biden’s ‘Justice’ Department could always go down to Florida, set up outside, and then try to go in if they found some pretense to do so. Turley said he “would be surprised if the state would seek to bar entry in such a cases given the concurrent federal jurisdiction in elections.”
Now, as I have said many times, I am not a lawyer, nor is anyone on my research staff, but if we were in Prof. Turley’s class, we would have to raise our hands and ask what he meant by “concurrent federal jurisdiction in elections.” The Constitution gives the states the power to run their elections. Absent some serious, overriding issue, the feds shouldn’t just be showing up outside polling places expecting to be let in. And the state law says they can’t come in unless the clerk and a majority of inspectors agree. So, to know how this should play out, let’s start by asking the clerk!
As one reader replied to Turley: “I live in Florida and I would not ‘be comfortable’ with them anywhere inside or outside my polling place!”
A more strident reader said, “The governor should have armed state agents keep the DOJ agents at bay. If DOJ resists, then they should be taken into custody and held until the election is complete.” Perhaps the mere prospect of being put in that spot –- or even the possibility, however remote, of starting another Fort Sumter –- has kept the DOJ from running roughshod over the state of Florida..
So, how did it play out on Election Day? Well, the Florida Secretary of State’s office sent monitors of their own to monitor the feds who were monitoring the election –- presumably from outside.
That’s how crazy things re getting, but at least DeSantis knows he has the voters of Florida behind him, especially after his sweeping re-election. If only we could say, “As Florida goes, so goes the nation!”