STATE ATTORNEY SPOKESMAN: “WE STILL THINK IT’S OBVIOUS THAT ROBERT DEAN LIVES IN KEY HAVEN.” BUT, BY LAW, THAT OPINION IS TRUMPED BY THE CANVASSING BOARD.
Commentary by Dennis Reeves Cooper…….
A couple of weeks ago, Bob Dean– through his attorney, Michael Halpern– virtually slapped State Attorney Catherine Vogel right in the face. Following a voting fraud investigation last month, Vogel concluded that Dean may have been voting illegally in Key West for years– because, she said, he doesn’t live in Key West. He lives in Key Haven, just outside of the Key West city limits. Voting in a district where you don’t live is a third degree felony punishable by as much as five years in jail. Dean needs the Key West designation on his voting card (even though almost every other document in Dean’s life shows the Key Haven address) to try to establish residency in Key West. You see, Dean sits on two important boards here. He holds the Key West seat on the Florida Keys Aqueduct Authority (FKAA). He also sits on the board of the Key West Housing Authority. He gets pay and benefits from both agencies– but both of those positions require that he live in Key West.
But Vogel opted not to prosecute Dean because, she said, he may have gotten bad advice in the past from a former Supervisor of Elections, as well as a former State Attorney. Instead, she put Dean on notice by formally challenging his eligibility to vote in Key West. Now, here is where the virtual face-slapping comes in. At a recent FKAA board meeting, where Dean’s residency was being questioned, Halpern stood up and loudly promised that Dean would indeed vote in the upcoming Key West City elections and that his eligibility to vote would be ratified by the elections Canvassing Board– City Commissioner Jimmy Weekley, City Commissioner Clayton Lopez and City Clerk Cheri Smith. And that’s exactly what happened. Dean voted and so did the members of the Canvassing Board. Last Friday, they voted 3-0 to accept Dean’s argument that he lives in that little apartment on Bahama Street in Key West and not with his wife in that big house in Key Haven– and, therefore, he can vote legally in Key West. These poor hapless city officials gave new meaning to the word “pathetic.”
Well, surely State Attorney Vogel wasn’t just going to sit there and take a face-slapping without taking some significant action.. After all, she is the chief law enforcement officer in Monroe County. And she had put Dean on notice that, if he voted, there could be consequences. So immediately after the Canvassing Board vote, I sent a one-question email to Vogel’s office: What are you going to do now? I received a detailed response from Assistant State Attorney Mark Wilson informing me that the State Attorney’s Office does not plan to take any further action in the Dean case.
“Many people have a fundamental misunderstanding about the relative responsibilities of the Canvassing Board and the State Attorney in a case such as this,” Wilson said, “The Canvassing Board decides who is an eligible voter. The State Attorney decides if a crime has been committed, and if so, whether the crime can be proven beyond a reasonable doubt. Those responsibilities are distinct and do not overlap. But our view of the matter hasn’t changed,”Wilson emphasized. “We still think it’s obvious Robert Dean lives in Key Haven. But our opinion about Mr. Dean’s eligibility to vote in Key West elections doesn’t trump the opinion of the Canvassing Board. If the Canvassing Board says he is eligible to vote, he is eligible to vote. That’s their function. By law, the question of a voter’s eligibility is consigned to the Canvassing Board alone– the State Attorney isn’t given a veto.”
Wilson invested some time and thought in his response. For readers who have been closely following this story, here is his response verbatim:
“Chief Investigator Chris Weber sent me your e-mail asking what action, if any, the State Attorney’s Office intends to take in light of the Canvassing Board’s decision to accept Robert Dean’s provisional ballot. The short answer is that we intend to take no further action. Let me explain why. Many people have a fundamental misunderstanding about the relative responsibilities of the Canvassing Board and the State Attorney in a case such as this. The Canvassing Board decides who is an eligible voter. The State Attorney decides if a crime has been committed, and if so, whether the crime can be proven beyond a reasonable doubt. Those responsibilities are distinct and do not overlap.
“The statute governing provisional ballots – i.e., the ballot of a voter whose eligibility has been challenged – says the “canvassing board shall … determine if the person voting that ballot was entitled to vote at the precinct where the person cast a vote in the election[.]” Fla. Stat. § 101.048. You’ll notice the statute doesn’t say anything about the State Attorney being able to make his or her own judgment about this: the statute says when a voter’s eligibility is challenged, the Canvassing Board decides. In Robert Dean’s case, our investigation convinced us he doesn’t live at the Bahama St. address he claims as his residence for voting purposes. In our judgment, the facts show he lives in Key Haven, not Key West. That’s why the State Attorney filed a challenge to Mr. Dean’s eligibility to vote in Key West elections, which under Florida Statute 101.111 is the correct method to challenge a voter whose eligibility is in doubt. Our view of the matter hasn’t changed. We still think it’s obvious Robert Dean lives in Key Haven. But our opinion about Mr. Dean’s eligibility to vote in Key West elections doesn’t trump the opinion of the Canvassing Board. If the Canvassing Board says he is eligible to vote, he is eligible to vote. That’s their function. By law, the question of a voter’s eligibility is consigned to the Canvassing Board alone – the State Attorney isn’t given a veto.
“Crimes are a different matter, of course. That’s exclusively the State Attorney’s business. The statute criminalizing illegal voting provides, “Whoever, knowing he or she is not a qualified elector, willfully votes at any election is guilty of a felony of the third degree[.]” Fla. Stat. § 104.15. You’ll notice there are three elements to this offense: (1) the person is not a qualified elector (i.e., voter); (2) the person knows he or she is not a qualified elector; and (3) the person willfully votes anyway. The reason we aren’t going to prosecute Robert Dean for voting, despite the State Attorney’s challenge to his eligibility, is simple: we can’t prove the first and second elements of the crime. Number one, the Canvassing Board has said Mr. Dean is a qualified elector. (We may have a different view of the matter, but as I mentioned earlier, the Canvassing Board’s opinion is dispositive of this question.) Number two, if Mr. Dean is a qualified elector – which the Canvassing Board says he is – it is obviously rather difficult for us to prove Mr. Dean knows he is not a qualified elector. So even if you believe the Canvassing Board’s decision was contrary to the facts, how can the State Attorney’s Office prove Robert Dean knows he’s not a qualified elector when the Canvassing Board says that he is? We can’t. In light of the decision of the Canvassing Board, there is no way Robert Dean can be prosecuted for illegally voting.
“”I know many people are unhappy the Canvassing Board decided to accept Mr Dean’s vote. And I know there are some people looking to the State Attorney’s Office to do something about it. But there isn’t anything more for us to do beyond what we have already done. This reminds me of a famous dissent by United States Supreme Court Justice John Marshall Harlan (ironically, in an apportionment case), in which he remarked: “The Constitution is not a panacea for every blot upon the public welfare[.]” Reynolds v. Sims, 377 U.S. 533, 624-25 (1964). So it is with the State Attorney’s Office. It isn’t our function to right every perceived wrong in the county. We have our job, which we take very seriously and do as conscientiously as we can. Other elected officials and bodies have theirs.
Assistant State Attorney
One of our readers pointed out an error in a recent story that involved Bob Dean’s service on the board of the Key West Housing Authority. The story should have reported that Dean receives no pay or benefits from the Housing Authority. All the members of that board are volunteers.
Help us continue to bring you local investigative journalism… Click on the image to make a donation.