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Federal appellate court reinstates Florida election integrity law

BY JENNIFER CABRERA

Yesterday the U.S. Court of Appeals for the 11th Circuit stayed an injunction that had previously been issued by Federal Judge Mark Walker, reinstating provisions of SB 90 (2021), which prohibited the use of private funds for election-related expenses, required third-party voter registration organizations to deliver voter registration applications to the Supervisor of Elections within 14 days (and notify the applicant that the organization may fail to do so, including advising the applicant that they may do so themselves), specified fines for voter registrations that are delivered after 14 days, prohibited solicitation within 150 feet of a polling location or drop box, required voters to request vote-by-mail ballots every general election cycle instead of every other general election cycle, required in-person continuous monitoring of drop boxes when the drop box is accessible for the deposit of ballots, and expanded the definition of solicitation of voters (within 150 feet of a polling place or drop box) to include engaging “in any activity” with the intent of influencing a voter.

Original complaint

The League of Women Voters of Florida and a number of other organizations filed the original complaint on May 6, 2021, and asked for an injunction based on assertions that the “Voter Suppression Bill,” as the complaint calls it, “severely reduces access to vote-by-mail drop boxes”; bans organizations from helping voters return their ballots; unnecessarily requires voters to more frequently request vote-by-mail ballots; bans anyone except election workers from giving food or drink, including water, to voters waiting in line; and requires voter registration organizations “to recite a misleading, government-mandated ‘warning’ that has the intent to and will have the effect of discouraging Floridians from registering to vote with such organizations.”

Judge Walker’s decision

Judge Walker’s 288-page ruling, described as “stinging” by NBC News, found that the law intentionally discriminated against black voters, permanently enjoined three provisions of the law, and ordered the State to submit to a process called “preclearance” for 10 years. Under the process, Florida would be required to clear any voting law changes with Walker if the changes involved third-party voter registration organizations, drop boxes, or “line-warming activities.” Walker found that “SB 90 runs roughshod over the right to vote, unnecessarily making voting harder for all eligible Floridians, unduly burdening disabled voters, and intentionally targeting minority voters.” He also found that the disclaimer required of voter registration organizations impermissibly compelled speech.

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Appellate Order

The opinion from the Court of Appeals, written by Judges Kevin Newsom, Barbara Lagoa, and Andrew Brasher, granted the State’s motion to stay Walker’s decision pending appeal. The Court found that the 2022 election is sufficiently “close at hand” that the district court violated a test called the “Purcell principle” in enjoining a state election law “in the period close to an election.” The principle holds that if that happens, the appellate court should stay the injunction with no need to express an opinion on the merits. When the district court issued its injunction, the judges wrote, “voting in the next statewide election was set to begin in less than four months… Moreover, the district court’s injunction implicates voter registration – which is currently underway – and purports to require the state to take action now, such as re-training poll workers.”

The appellate court also found that Walker’s determination “suffers from at least two flaws”: 1) The determination that SB90 is the product of intentional race discrimination used a “problematic” analysis of the historical background of the law and “failed to properly account for what might be called the presumption of legislative good faith”; and 2) The determination that the solicitation language was unconstitutionally overbroad and vague “failed to contend with any of the ‘plainly legitimate’ applications” of the provision.

The decision will stand while the appeal process continues, meaning that SB 90 will be in effect for the 2022 election cycle.

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