Florida Voter Suppression Law Challenge (LWV)

On Sept. 15, 2022, a three-judge panel of the 11th U.S. Circuit Court of Appeals heard oral arguments regarding Florida’s appeal of a district court’s decision to strike down multiple provisions of the state’s omnibus voter suppression law, S.B. 90, and to place the state under preclearance requirements for the next 10 years. The provisions of the law on appeal — which were struck down by the district court for violating the Voting Rights Act as well as the 14th and 15th Amendments — include a line-warming ban that prevents non-election workers from passing out food and water to voters as well as restrictions on the use of drop boxes. Additionally, the appeal concerns a provision of the law that required third-party voter registration organizations to warn voters that the organization may not return the voter’s registration application on time. However, this provision was repealed by the Florida Legislature and replaced with a written warning on voter registration forms. While the written warning is not on appeal, Florida still requests that the 11th Circuit vacate the district court’s ruling on this formerly enacted verbal warning provision, given it has been repealed.

The court first heard from an attorney representing Florida Secretary of State Cord Byrd (R) who argued that the district court misapplied preclearance requirements to Florida since the state does not have a history of discrimination. The attorney stated that, although five Florida counties were previously placed under preclearance, the state as a whole never was. The attorney then turned to discussing the data relied on by the plaintiffs in the district court that pointed to the disproportionately higher use of drop boxes by Black voters and the higher likelihood of Black voters to vote outside of early voting hours. The attorney alleged that this data was “flawed” and error ridden. Next, a judge asked the attorney about a statement cited in the the district court’s opinion from Sen. Dennis Baxley — a Republican state senator — who, when asked if restrictions on drop boxes and voter assistance would disparately impact Black voters, answered that he “look[ed] at patterns of use” and noted that there would be a “learning curve” for Black voters following the passage of S.B. 90. The attorney responded that he did not “know what Senator Baxley was talking about” and that the Legislature was not aware of any disparate impacts on Black voters associated with these provisions of S.B. 90. He added that a “presumption of good faith should be triggered” and that “we should not draw the worst possible conclusion from that pattern of use comment.”

Next, the court heard from an attorney representing the Republican intervenors (the Republican National Committee and the National Republican Senatorial Committee) in the case. The attorney argued that S.B. 90’s line-warming ban is neither “overly vague” nor unconstitutional. The attorney also asserted that the line-warming provision of S.B. 90 is a “prophylactic measure” intended to prevent third-party organizations from influencing voters, regardless of whether they have the specific intent of doing so. The attorney stated that it is difficult to discern what third parties are doing when they approach a voter and the line-warming ban is therefore necessary to prevent any and all forms of potential “solicitation.” 

After hearing from the appellants’ attorneys, the court heard from an attorney for one of the appellees, the League of Women Voters of Florida (LWV). The attorney underscored how the conduct banned under S.B. 90’s line-warming ban, in which the LWV’s members merely encourage people to vote, is markedly nonpartisan in nature. The attorney specifically argued that encouraging individuals to vote is not the same as engaging in partisan electioneering. He added that while the U.S. Supreme Court previously ruled that electioneering and partisan campaigning within a certain radius of a polling place is impermissible, it did not say that there is a “strong interest in preventing voters from being encouraged to vote.” When asked by one of the judges whether S.B. 90’s line-warming ban is simply meant to maintain peace and quiet around a polling place, the attorney responded by noting that Florida already has a prohibition that prevents the disturbance of voters around polling places. He concluded that unlike this existing prohibition, S.B. 90’s prohibition is very different since it results in a criminal misdemeanor charge and puts third-party voting organizations’ members at risk of being arrested.  

Next the court heard from an attorney for the Florida Rising appellees, who described how the appellants “cherry picked” the record and failed to include additional analysis on the use of drop boxes that demonstrates how Black voters are statistically more likely to utilize drop boxes and to rely on third-party organizations for voter registration. He explained that the Legislature clearly discriminated against Black voters in constructing certain provisions of S.B. 90, as its Republican members were aware of the fact that the use of mail-in voting by Black voters nearly doubled between 2016 and 2020. Next, one of the judges asked the attorney whether the verbal warning requirement for third-party voter registration organizations (that has now been replaced with a written warning) actually helps these organizations by making it more likely that they return new voter registration applications on time. The attorney responded by explaining how this onerous obligation actually diverted resources from these organizations aimed at putting people in the field. He also pointed to the lack of evidence to substantiate the claim that voters’ registrations did not get submitted on time by these organizations. 

Subsequently, the court heard from an attorney representing all the appellees. He asserted that the 11th Circuit should affirm the district court’s decision to place Florida under preclearance requirements due to the state’s longstanding pattern of targeting Black voters. He stated that “the Legislature actively sought out data about voting patterns and then targeted vote by mail procedures after Black voters more than doubled the rate at which they cast mail ballots in 2020.” One of the judges asked the attorney whether the record-high voter turnout by Black voters in Florida in 2020 suggests that preclearance is unwarranted. The attorney noted that much of this increase in Black voter turnout could be attributed to the increased utilization of mail-in voting, the very voting method that S.B. 90 aims to restrict. The attorney closed his argument by stating that the preclearance scheme is necessary to ensure that Florida does not pass future legislation that directly targets Black voters.

Finally, the court heard closing statements from the attorneys for the appellants. The attorneys for the Florida secretary of state and Republican intervenors  reiterated their arguments that the 11th Circuit should reverse the district court’s decision to strike down certain challenged provisions of S.B. 90. Regarding the preclearance regime ordered by the district court, the attorney for the Florida secretary of state stated that “this evidence-free notion that somehow because the state has Republicans, we are going to discriminate against our Black citizens is an insult…This conclusion cannot possibly justify intrusion into the sovereign rights of the state for the next 10 years.”