Byron Smith was standing outside his house when the Tampa police officer put the handcuffs around his wrists. “What’s this about?” Smith asked, flustered, standing in the early afternoon Florida summer heat.
Minutes later he was sitting in the back of a police cruiser, still trying to figure out why he was being placed under arrest, body-camera footage obtained by the Guardian shows. “Did you vote?” the officer asked him. “Not this time, no,” Smith, 65, replied. “They took that right away from me.” The officer then told him a $1,000 bond had been set for him. “What’s the charge?” Smith asked. “It was for something about false voting and something else,” the officer said.
Smith had reason to be confused.
He registered to vote on 14 January 2019, just days after a well-publicized constitutional amendment in Florida, Amendment 4, went into effect, restoring voting rights to people with felony convictions. People convicted of murder and sexual offenses were excluded from the amendment, but at the time, lawmakers were still figuring out which specific crimes would cause someone to permanently lose their voting rights. When they settled on a list months later, they knew there would be some confusion, so they included a grace period that said anyone, like Smith, with a felony conviction who registered during the first six months of 2019 could not be prosecuted for illegally registering.
Local election officials approved Smith’s registration the same day he registered, and, the next fall, he voted in the 2020 election. It wasn’t until February of this year that election officials sent him a notice telling him it appeared he was ineligible to vote, according to Gerri Kramer, a spokesperson for the Hillsborough county supervisor of elections. Smith’s 1993 conviction was for possession of child abuse imagery, a sex offense that made him ineligible to vote in Florida.
Hours after Smith was sitting in the back of the police car on 18 August, Florida’s governor, Ron DeSantis, in a courtroom across the state in Broward county, held a press conference. Flanked by uniformed law enforcement officials, DeSantis announced the state was prosecuting 19 people, including Smith, for voter fraud. All of them had been previously convicted of murder or a sexual offense, and had voted in the 2020 election.
Smith was taken to the local jail in Tampa, where he was booked and released after making bond. He was charged with knowingly voting illegally in the 2020 election, a third-degree felony punishable by up to five years in prison and a $5,000 fine.
Court documents reviewed by the Guardian revealed that many of those arrested were confused about their eligibility and thought they could vote. Smith, like all of the other defendants, filled out a voter registration form, and received a voter registration card before voting. Florida authorities have yet to offer any evidence suggesting that any of those prosecuted were warned they were ineligible to vote.
“How many of these people willingly attempted to commit voter fraud? I don’t think any of them did. I don’t think there was any ill intent by probably any of the 20,” said Jeff Brandes, a Republican state senator who played a key role in drafting legislation to implement Amendment 4.
“They were asked if they wanted to register to vote, may have asked them some follow-up questions, they had read in the media that, ‘hey, felons just had their rights restored to vote. So they voted. They registered to vote,” he said.
Smith did not return a voicemail message. Jonah Dickstein, a lawyer representing him, said his client did not knowingly vote illegally.
“He voted totally outwardly, out-front about it. There’s nothing surreptitious about the way he went about it. He went in because he wanted to vote. He wants to be reintegrated into society. He went into the registrar because he wanted to sign up, and they let him sign up.”
Smith’s case illustrates why there are growing questions about the 19 prosecutions, which were the first DeSantis announced under a new statewide office charged with prosecuting voter fraud. State officials took years to identify ineligible voters on the rolls and now voters are being punished for it.
“Frankly, they did everything right. They turned it in, the supervisor sent it up, the state didn’t check,” Brandes said. “Kind of shocking, we’re going to wait three years and go through a couple of different cycles before this person is flagged and told they can’t vote. If you can’t trust the secretary of state, who is the chief elections official of the state of Florida, then who can you trust?”
DeSantis defended the prosecutions this week, saying people charged had falsely checked a box on the voter registration form indicating their voting rights had been restored.
“People sign up and they check a box saying they’re eligible, so obviously if they’re not eligible and they’re lying then they can be held accountable,” he said at a press conference on Tuesday. “Clearly this is a very, very easy provision of our law to know that somebody should not be registering or being able to do it if they have those very serious convictions.”
Mark Ard, a spokesman for the Florida secretary of state’s office, decline to explain why it took the state so long to review the eligibility of Smith and other people charged.
“These individuals lied when they registered to vote. They were never eligible, and there is no confusion on that point. We are confident that when all the facts and evidence are revealed through the legal process, the reasons these individuals were arrested will be clear,” he said in a statement.
Brandes, the state senator, said checking a box on a voter registration form wasn’t enough to prove fraud.
“That doesn’t prove intent. All it proves is that they filled out a piece of paper. It doesn’t prove that they intended to defraud or that they intended to willfully try to commit voter fraud,” he said.
The Guardian reviewed Smith’s voter registration form as well as the voter registration applications of nearly all those charged. None contain an explicit warning that people convicted of murder or sexual offenses cannot vote in Florida.
Smith and Peter Washington, an Orlando man, are also the only two defendants among the 19 who registered during the Amendment 4 grace period. Both are only being prosecuted for voting illegally, not registering.
In the summer of 2020, the US court of appeals for the 11th circuit, also appeared to offer some legal protection for people confused about their voting eligibility. At the time, 85,000 people with felony convictions had registered to vote after Amendment 4 went into effect, but state officials had yet to review any of their eligibility.
A majority of judges on the 11th circuit, one of the most conservative courts in the US, said that until Florida told anyone they were ineligible because of a felony, they were “entitled to vote”.
