Where do you live? In Florida that’s a messy question when voting is involved
In Florida, determining legal residency for voting can rest on where someone “mentally intends” to permanently live.
That poses a challenge for investigators who look into claims of non-residents voting — as a former town attorney is alleging took place in a January election in Medley that was decided by two votes.
Florida law does not clearly define legal residency. Instead, the latest guidelines issued by the state in 2018 come with a disclaimer and state that legal residency is where a person “mentally intends to make his or her permanent residence.”
Legal residence, according to the Florida Department of State, “is a convergence of intent and fact.”
That means where someone stays most of the time doesn’t necessarily dictate where they are legally required to vote, said Joe Geller, an election lawyer and Democratic state representative.
“Residence is not, where does your head touch the pillow most? Some people think it should be, but it’s not,” Geller said. “The bottom line is, it can be difficult to figure out who is and isn’t a resident.”
Former Medley town attorney Michael Pizzi raised questions in a February memo to local investigators about the residency of several voters in the January election, which resulted in a wife and husband serving on the same elected council for the first known time in Florida’s history.
The Miami-Dade State Attorney’s Office will look into Pizzi’s allegation that some Medley voters lived elsewhere and their ballots were “illegal.” The Miami Herald found that several of the voters he flagged have lived in Medley, but may no longer live there permanently — such as an assistant town clerk who owns a home in Pembroke Pines with her husband.
“Florida makes it very easy for people to do this,” Pizzi said. “This is a systemic problem.”
Juan-Carlos Planas, an election lawyer and former state representative, said there are instances of the Florida Elections Commission investigating whether people falsified where they live and referring those cases to local state attorneys for prosecution. But the state’s lax requirements mean criminal charges are rare, he said.
“Proving that it was done with a malicious intent is very hard, especially if perhaps they once lived there,” Planas said. “A state attorney is not going to move on a prosecution unless they have a credible assertion that the person had done that in order to purposely commit voter fraud.”
Even if a case doesn’t meet criminal standards, that doesn’t mean voters are registered properly, Geller said. If a lawsuit is filed challenging the results of an election, a civil judge must weigh the evidence on the legal residence.
There are many potential factors, including the address on a driver’s license, where mail is received and whether a homestead exemption is claimed at a property. A voter can have only one legal residence at a time.
“These cases tend to be messy,” Geller said. “People’s lives are messy.”
Some high-profile cases have found that voters falsified their addresses. In 1998, a Miami-Dade Circuit Court judge voided the results of Miami’s mayoral election after findings of sweeping absentee ballot fraud, including that ballots were cast by people who didn’t live in the city or lived outside the district in which they voted.
Months later, Miami city commissioner Humberto Hernandez was arrested along with members of his family and campaign staff for conspiring to cover up a scheme in which voters falsely claimed to live in his district. He was later sentenced to a year in jail.
Elected officials face more scrutiny
Questions about residency are also aimed at candidates for office and elected officials who are legally required to live in their districts.
In September 2020, Sweetwater Commissioner Sophia Lacayo resigned and pleaded guilty to perjury after falsely saying she lived in the city during her election campaign the previous year. She received one year of probation for a first-degree misdemeanor and agreed not to run for office during that period. Lacayo is running for Miami-Dade County Commission in an election that will be held later this year.
In 2018, the Herald found that then-state senator Daphne Campbell had been registered to vote from at least four addresses in six years after a statewide redistricting put her home outside her district. Campbell insisted she lived in her district as the Florida Constitution requires and never faced charges.
In 2017, Miami State Rep. Daisy Baez resigned and pleaded guilty to perjury for lying about her address on a voter registration form. She agreed to serve one year of probation.
And in 2000, Miami-Dade School Board candidate Demetrio Perez Jr. claimed he stayed in a tool shed on a tropical farm in the Redland in an attempt to qualify for office in District 7. Judges with the Circuit Court and Third District Court of Appeal found him ineligible to run for the seat.
Integrity in elections has been a hot topic in Florida, with state lawmakers recently approving Gov. Ron DeSantis’ request for a new election fraud police force. The Herald reported on an apparent campaign by canvassers to switch seniors’ voter registration to the Republican Party.
Election lawyers who spoke with the Herald said while election fraud is not a widespread problem at the national level, irregularities at the local level aren’t always as closely scrutinized and can have a big impact. With so few voters, such as the roughly 400 in the recent Medley election, just a handful of votes can change the outcome.
“They can do stuff like this,” Planas said, “and when you try to crack down on it, they’re gonna say: ‘Well, you’re just interfering with people’s right to register and vote.’”
This story was originally published March 23, 2022 at 6:00 AM.
