Florida's gambling expansion proposals will need nearly 900,000 signatures before Feb. 1 in order to be on the ballot

A Legal Storm Is Brewing In Florida Over Accusations Of Gambling Ballot Measure Fraud

On January 20, 2022, the Tampa Bay Times ran a story by Lawrence Mower and Mary Ellen Klas with a lede that said:

“Florida could be in the midst of one of the largest cases of election-related fraud in recent history.”

We are now approaching the February deadline for verification of signatures to get initiatives on the ballot for the November 2022 midterm election. According to the Times story, election supervisors across the state are seeing “thousands of fraudulent petition forms.”

There are two groups pushing somewhat competing ballot initiatives. These are Florida Voters in Charge (FVC), backed by Las Vegas Sands Group, and Florida Education Champions (FEC), which has DraftKings and FanDuel behind it. The two groups have spent $49 million and $36 million respectively to get their measures on the ballot.

That’s a staggering amount of money for a single issue, in a single state. By way of comparison, there were 43 initiatives nationwide in 2020, all of which together spent only little more than $87 million.

The fight to get these measures on the ballot already appears to be the most expensive in history. We will not know whether it succeeded until next month. In the meantime, a recently-filed third-party complaint contained some eyebrow-raising allegations about FVC’s signature collection practices.

Refresh on the Standing Up for Florida filing

Earlier in January, yet another group – Standing Up for Florida (SUF) – filed a third-party complaint and counterclaim in Leon County Circuit Court. The group, which has the backing of the Seminole Tribe, makes some series accusations. It claims that there have been violations of Florida election law connected to the Florida Voters in Charge petition.

The third-party complaint alleged:

  • Illegal shredding of petitions,
  • completion of  missing information – purportedly done illegally, and
  • the alleged forging of signatures, including that of the Supervisor of Elections

The crux of the complaint relates to deals that FVC signed with certain subcontracts. It claims that these deals included a pay-per-signature provision. That type of payment scheme is illegal under Florida law.

Florida Voters in Charge fires back

Not to be outdone, FVC fired back in their motion to dismiss the counterclaim and third-party complaint. The introduction calls the allegations against the plaintiffs “shameless attempts to circumvent the dismissal of the same claims by another circuit court.”

The motion cites five reasons that the counterclaim and third-party complaint should be dismissed:

  1. There is another order from Palm Beach County Circuit Court that purportedly addressed the same claims;
  2. The claims are barred by collateral estoppel (a rule that says you cannot litigate the same thing twice);
  3. There is not a private right of action to enforce violations of the petition gathering law;
  4. The defendants lack standing because they have not alleged any direct injury-in-fact, and finally
  5. The defendants seek standing because they are not parties to the contracts or beneficiaries of the contracts.

The Palm Beach situation explained

The motion to dismiss alleges that there was a prior effort by SUF to file suit against the Secretary of Elections for Palm Beach County. The plaintiffs allege that these are the same claims the group is now seeking to bring in Leon County.

Generally speaking, the law doesn’t allow a plaintiff to get two kicks at the same can in two different jurisdictions. The Palm Beach case resulted in dismissal just two days after filing. In dismissing it, the judge cited the Florida Attorney General’s exclusive authority to enforce the statute in question.

Collateral estoppel

The plaintiffs argue that the claim is barred by collateral estoppel. This rules prevents a single party from trying the same issues with the same defendant across multiple lawsuits.

Here too, the idea is that you get one shot, and you need to bring up all your related issues in the same suit. There is one big question, which the plaintiffs acknowledge. This is that Florida has historically required that the doctrine only applies when it’s the same parties in each lawsuit.

That isn’t the case here. Nonetheless, the plaintiffs claim that despite a change in the lawsuit’s target, this is effectively an effort to re-litigate the same issues after failing the first time.

A lack of standing

The plaintiffs argue that SUF lacks standing. Their argument is that the law SUF accuses them of violating does not have a private right of action. When a law lacks such a right, it’s typically only those responsible for law enforcement who can file charges or raise the issue.

The language of the statute does not mention a private right of action. Nevertheless, the plaintiffs argue that the defendants are trying to backdoor such a right into the law by seeking only declaratory judgment.

No standing (twice)

The plaintiffs also argue that SUF lacks standing for two reasons. Firstly, they claim that because SUF is not party to any of the contracts, it is not within the group of parties sufficiently impacted to bring suit. Secondly, they point out that SUF itself has not pointed to any direct injury-in-fact.

Of course, if the contracts themselves are illegal, the court might not have been impressed if it had been called upon to enforce the law by the signing parties.

What to watch

This case continues to build. Meanwhile, the clock is ticking, with just over a week to go until the Feb. 1 deadline. Both sides have now fired off briefs advocating their positions, which make for page-turning reading. It is unclear whether there will be any sort of ruling before the deadline expires. What is sure, however, is that if either measure somehow ends up on the ballot, this litigation will only intensify.

- John Holden J.D. / Ph.D. is an academic. His research focuses on policy issues surrounding sports corruption.
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