The Florida Supreme Court will hear arguments Wednesday in Hubbard v. State of Florida, a case challenging the legality of one of Republican Gov. Ron DeSantis’s prosecutions for alleged voter fraud. Terry Hubbard was one of 20 people charged in 2022 by statewide prosecutors as part of Florida’s campaign against people with past felony convictions who mistakenly voted because of confusion about their eligibility. The Florida Supreme Court will consider whether statewide prosecutors had the authority to charge him.
A ruling for the state would permit future governors to weaponize prosecutions for political ends — a tactic now being used at the federal level in unprecedented ways.
In Florida, there are two types of prosecutors: local state attorneys, who are chosen by voters and can only prosecute crimes within their jurisdiction, and statewide prosecutors, who are supervised by the attorney general and can only prosecute crimes that occur in or affect multiple parts of the state.
The circumstances around Hubbard’s prosecution suggest the state’s actions are intended to intimidate voters. DeSantis announced Hubbard’s arrest and that of 19 others at a press conference just days before Florida’s 2022 primary election. Surrounded by law enforcement officers, he called the arrests the “opening salvo” of Florida’s newly created “election police.” He also claimed that those arrested knowingly voted while ineligible and announced that the Office of Statewide Prosecution would handle the cases because local state attorneys were “loathe” to bring them.
But the people arrested all shared a troubling set of circumstances: Publicly available evidence suggests that most if not all were confused or misled about their eligibility to vote, and they all lived in counties with a local state attorney who had been elected as a Democrat.
This confusion was of the state’s own making.
In 2018, Florida voters approved a state constitutional amendment that automatically restored voting rights to most people with felony convictions upon completion of sentence, including probation and parole. Amendment 4 was supposed to re-enfranchise as many as 1.4 million Floridians who had previously been barred from voting for life.
But in June 2019, the legislature and DeSantis enacted a law purportedly to “implement” the amendment. The law, Senate Bill 7066, imposed new barriers to voting rights restoration. Most significantly, it added a requirement that people pay off certain fees and court costs related to their conviction before regaining their right to vote. Many people do not know what they owe, while hundreds of thousands cannot afford to pay off those court debts.
Since the law’s enactment, Florida has struggled to determine eligibility in a timely fashion. There is no centralized database to reliably confirm whether a person owes any court debts, and the state has done nothing to meaningfully educate the public about Amendment 4’s and S.B. 7066’s requirements. These failures have led to widespread confusion around who is eligible to vote after a felony conviction.
In Florida, it is against the law to register to vote or to vote while ineligible only if the person knew they were ineligible and did so anyway. Given the confusion around voter eligibility, some local state attorneys have declined to prosecute individuals who were confused or misled about the status of their voting rights, citing lack of intent to break the law.
So DeSantis tapped the Office of Statewide Prosecution to bring the cases even though the office’s focus, consistent with its history and purpose, has been complex criminal cases. The office was created in 1987 to combat organized crime that occurs in or affects more than two of Florida’s 20 judicial circuits. Because voters register and vote in the circuit where they reside, a state trial court judge dismissed the office’s charges against Hubbard. Judges in similar cases reached the same conclusion, prompting the legislature in 2023 to enact Senate Bill 4-B, a law purporting to authorize the office to prosecute all voting crimes, including those that only occur in or affect one circuit like the offenses Hubbard is accused of committing.
Florida’s intermediate appellate courts have since split on whether the office may bring such prosecutions. In Hubbard’s case, the Fourth District Court of Appeals held that S.B. 4-B applied retroactively, authorizing the prosecution. The Florida Supreme Court’s decision will determine whether the office can prosecute him or any other person charged with a similar offense.
The weaponization of the Office of Statewide Prosecution in Florida offers a troubling preview of what may unfold at the federal level. Since returning to office, President Trump has been on a retribution tour. The Department of Justice has opened criminal investigations into or filed criminal charges against a growing number of the president’s political adversaries. Some of these efforts, like those involving former FBI Director James Comey and New York Attorney General Letitia James, have faced resistance from career prosecutors, prompting the president to install some of his former personal lawyers as interim U.S. attorneys despite their lack of prosecutorial experience. A federal judge dismissed the indictments against Comey and James.
There is reason to believe that the DOJ will soon be deployed like Florida’s statewide prosecutor’s office to undermine federal elections. Trump has repeatedly called for investigations and prosecutions of election officials who administered the 2020 election. Last summer, the DOJ began requesting full copies of statewide voter files, ballots from prior elections, and access to voting equipment. Shortly thereafter, The New York Times reported that the DOJ was actively exploring ways to bring criminal charges against election officials over how they managed election systems. Newly formed federal task forces, including the DOJ’s new National Fraud Enforcement Division — which the White House is expected to have a direct supervisory role over — also appear to provide new infrastructure for politicized investigations and prosecutions that could be used to interfere with federal elections.
The federal government and the states can and should prosecute genuine election fraud. But there is no evidence of widespread voter fraud in Florida or in federal elections. Instead, Florida’s prosecutions seemingly sought to influence who turned out to vote. Indeed, the statewide prosecutor’s prosecutions had that exact effect: They deterred eligible voters in the state and elsewhere from voting. In Hubbard, the Florida Supreme Court should reject the state’s effort to weaponize law enforcement for political ends.
