With all the rumors of electoral malfeasance circulating in the news media, the Biden Department of Justice has sent federal election monitors to select jurisdictions across the country, ostensibly to ensure free and fair elections and to stave off any allegations of vote fraud. Specifically, the DOJ claims to be sending monitors to “enforce the civil provisions of federal statutes that protect the right to vote, including the Voting Rights Act, the Uniformed and Overseas Citizens Absentee Voting Act, the National Voter Registration Act, the Help America Vote Act and the Civil Rights Acts.”
In all, the Biden administration is dispatching 64 monitors to watch polling in 24 states. This number is significantly higher than the numbers the Trump administration sent in 2018 (25 jurisdictions) and 2020 (44 jurisdictions), but roughly the same as Obama in 2016 (67 jurisdictions).
This year, however, the DOJ is receiving pushback from the state of Florida, whose Broward, Miami-Dade, and Palm Beach counties are on the list. Upon receiving notification of the election monitors, the Florida Department of State’s general counsel Brian McVay informed the Civil Rights Division of the DOJ that, inasmuch as it appeared that the federal election monitors intended to enter polling places, they would be barred from doing so per Florida state law.
According to McVay’s letter, “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.” Anticipating an exemption for vaguely-defined “law enforcement,” the letter continued:
Even if they could qualify as “law enforcement” … 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.
Indeed, your letters do not detail the need for federal monitors in these counties. None of the counties are currently subject to any election-related federal consent decrees. None of the counties have been accused of violating the rights of language or racial minorities or of the elderly or disabled.
Your letters simply provide a non-exhaustive list of federal elections statutes as the basis for this action without pointing to any specific statutory authorization. When asked for specific authorization during our phone call this evening, you did not provide any. Accordingly, the Florida Department of State invokes its authority under section 101.58(2) of the Florida Statutes to send its own monitors to the three targeted jurisdictions. These monitors will ensure that there is no interference with the voting process.
Florida’s action is a robust exercise of state sovereignty, an all-too-rare example of the type of conduct that states should engage in as a matter of course to help put the federal beast back in its cage and restore the state supremacy contemplated by the Constitution’s federal arrangement.
