Judge Clears Way for Challenges to Elections Law

By Dara Kam, The News Service of Florida

TALLAHASSEE — A federal judge on Friday allowed a series of challenges to a new state elections law to move forward, setting the stage for a showdown over Republican legislators’ efforts to make it more difficult for Floridians to vote by mail and for organizations to conduct voter-registration drives.

The Florida Conference of the NAACP, Disability Rights Florida, the League of Women Voters of Florida, UnidosUS and a number of other organizations allege that the changes approved by the Legislature this spring could curtail voting by Black, Latino and disabled residents.

The law (SB 90) was one of the most controversial issues of the 2021 legislative session and came after a relatively smooth 2020 election in Florida. But GOP legislators maintained the changes were necessary to ensure election security and prevent fraud in future elections.

The lawsuits focus on several parts of the law that deal with voting by mail, as well as a requirement that third-party voter registration groups provide a disclaimer to people signing up to vote.

The law set new restrictions on the availability and use of drop boxes, where people can drop off vote-by-mail ballots. Under the law, supervisors of elections must have the boxes staffed at all times and can only use the boxes during early voting hours and at early voting sites. Supervisors who violate the requirement face $25,000 fines.

The lawsuits contend that the restrictions will have a negative impact on people who work during the day and voters with disabilities, who might be forced to bring ballots into early voting sites if supervisors don’t provide drop boxes outside.

In four separate rulings Friday, Chief U.S. District Judge Mark Walker said Secretary of State Laurel Lee, Attorney General Ashley Moody and supervisors of elections should remain as defendants in the cases, though he dismissed the officials from some parts of the challenges.

Lee sought to dismiss a lawsuit filed in May by the NAACP, Disability Rights Florida and Common Cause, arguing that she should not be a defendant and calling the lawsuit a “shotgun” complaint that does not properly spell out allegations.

But on Friday, Walker said Lee is a proper party because her office has authority to enforce the $25,000 penalties against elections supervisors who violate the drop-box restrictions.

The lawsuit also argued that the elections changes are unconstitutional because the “brunt of the harm” will be borne by Black voters, Hispanic voters, elderly voters and voters with disabilities.

But Lee argued that the case should be dismissed because the vote-by-mail restrictions do not place undue burdens on the right to vote and that the plaintiffs’ claims fail because they focus on burdens placed on “vulnerable” voters instead of on the electorate as a whole.

“She is wrong on both points,” Walker wrote in a 62-page order. “In sum, defendant Lee’s arguments that restrictions on mail-in ballots do not implicate the right to vote is unsound and unsupported by precedent.”

Lee also disputed allegations in the lawsuit that the mail-in ballot restrictions, enacted by Republican lawmakers after an unprecedented number of Floridians cast their ballots by mail last fall, were designed to curb participation in elections by minority voters. The restrictions are a continuation of a long line of efforts aimed at making it more difficult for Black people to vote, plaintiffs argued.

In a June motion, lawyers for Lee wrote that the plaintiffs “choose to dwell on the distant past.”

Walker, pointing to a ruling by the 11th U.S. Circuit Court of Appeals, acknowledged that courts have cautioned against “allowing the old, outdated intentions of previous generations to taint (the state’s) ability to enact voting legislation.”

But plaintiffs “have at least plausibly alleged that the old, outdated intentions of the current generation are tainting Florida’s election code,” he added.

The plaintiffs’ arguments were valid enough to allow the case to proceed, the chief judge said, writing that the “plaintiffs’ allegations draw a straight, shameful line from the discriminatory laws of the 1880s to today. Whether plaintiffs can prove such a link is another matter. At this stage, however, these allegations will do.”

The lawsuits also target part of the law that imposes restrictions on providing such things as food and water to people waiting in line to vote within 150-foot “non-solicitation” zones outside polling places.

For example, a lawsuit filed by plaintiffs including the Hispanic Federation said groups routinely “provide entertainment for families with children, snacks, soft drinks, water and phone charge stations” while voters wait in line. The lawsuits also maintain that areas with large numbers of Black and Latino voters have traditionally had longer wait times for voting.

Lee, however, argued that the law “does not in any way prohibit innocent, nonpartisan assistance to voters waiting in line.”

The lawsuits also allege that part of the law requiring third-party voter registration groups to provide disclaimers to people signing up to vote is intended to have a chilling effect on groups conducting voter-registration drives.

The law requires the groups to submit voter registrations to supervisors of elections in the counties in which the residents live within 14 days after the applications are completed. The groups also have to notify applicants at the time the registrations are collected that the organizations might not deliver the applications to the supervisors within the two-week time period and to advise people that they can deliver the applications in person or by mail and can register to vote online.

The disclaimers would discourage people from registering to vote through third-party organizations, which frequently target Black and Hispanic prospective voters, plaintiffs argued.

The new law also makes it a crime to distribute, order, request, collect, deliver or possess more than two vote-by-mail ballots other than a voter’s own ballot or an immediate family member’s ballot. Plaintiffs allege that the provision will make it more difficult for people living in congregate settings or in crowded households to cast ballots by mail.

But Walker said Lee, Moody and the supervisors of elections aren’t proper defendants in the challenge against that part of the law.

The judge wrote he “has not identified any statute that requires defendant supervisors to record or confirm the identities of volunteers who assist voters in returning vote-by-mail ballots or to report any suspected violation” of that section of the law “to the appropriate authorities.”

One group of possible defendants would be state attorneys who are responsible for enforcing criminal laws, Walker noted.

“Plaintiffs, however, have not sued any state attorneys,” he wrote.