Florida’s New Voter Suppression Law Goes to Court
In the 2020 general election, more than 77% of eligible Floridians voted — the highest turnout in the state in almost 30 years. The elections were applauded by state officials for being smooth and secure, with Gov. Ron DeSantis stating that “we should take a moment to enjoy the fact that Florida ran perhaps the most transparent and efficient election in the nation in 2020.” Despite this, DeSantis and his Republican allies in the Florida Legislature rammed through an extreme voter suppression bill in the following legislative session. The law, Senate Bill 90, purports to “protect” future elections from fraud — despite the absence of past fraud — but how does it really affect voters?
Four cases filed immediately following the law’s passage — League of Women Voters of Florida v. Lee, Disability Rights Florida v. Lee, Florida Rising Together v. Lee and Harriet Tubman Freedom Fighters v. Lee — argue that S.B. 90 imposes unnecessary burdens on the right to vote, particularly for Black voters, Latino voters, senior voters and voters with disabilities. As these cases head into a two-week trial in federal court starting on Monday, Jan. 31, read more to find out what’s at stake. Notably, this is the first voter suppression law passed in the wake of the 2020 election to have a full trial.
Who is involved in the case?
Since there are four different cases being tried at once in a consolidated bench trial before Chief Judge Mark E. Walker of the U.S. District Court for the Northern District of Florida, that means there are numerous individuals and groups on both sides of the case caption.
Plaintiffs:
- League plaintiffs: League of Women Voters, Inc., League of Women Voters of Florida, Black Voters Matters Fund, Florida Alliance for Retired Americans and individual voters
- NAACP plaintiffs: Florida State Conference of the NAACP, Common Cause and Disability Rights Florida
- Florida Rising plaintiffs: Florida Rising Together, Poder Latinx, UnidosUS, Equal Ground Education Fund, Hispanic Federation, Haitian Neighborhood Center Sant La and Mi Familia Vota Education Fund
- HTTF plaintiffs: Harriet Tubman Freedom Fighters
Defendants:
- Florida Secretary of State Laurel Lee (R)
- Florida Attorney General Ashley Moody (R)
- Election supervisors for all 67 counties in Florida
- The Republican National Committee (RNC) and National Republican Senatorial Committee (NRSC)
What law do the cases challenge?
The cases together challenge various suppressive provisions of S.B. 90. For the sake of simplicity, throughout this Case Watch we talk about the challenged provisions and claims against them in the aggregate without delineating which set of plaintiffs alleged what. The challenged provisions are:
S.B. 90 significantly scales back the number of drop boxes throughout the state. The law makes it so drop boxes are only allowed at a county’s permanent voting site or an early voting location and only accessible during early voting hours (between 8-12 hours per day). If counties want to offer a drop box outside of early voting hours, they can only do so at a supervisor’s main office or permanent branch office — and most counties only have one of these. Additionally, drop boxes must also now be “continuously and physically” monitored by an election employee.
Since 2007, a voter’s vote-by-mail request was valid for four years (two general election cycles). That meant if a voter applied and received a mail-in ballot for the 2018 elections, they automatically received a mail-in ballot for the 2020 election. S.B. 90 now requires voters to request mail-in ballots every two years (every general election cycle), despite the fact that voters are used to this two-cycle timeline.
Even though there are already strict laws in place regarding third-party voter registration organizations (3PVROs), S.B. 90 goes a step further to constrict the activity of organizations that aim to help increase voter registration and turnout. Under the law, 3PVROs must tell applicants they “might not deliver” their form on time — even if the organizations have every intent and the ability to do so — and must educate voters on alternative registration options, such as registering online or in person. S.B. 90 also imposes a strict deadline —14 days — for organizations to return completed applications to the correct elections office at the risk of hefty fines.
S.B. 90 adds new requirements for filling out a mail-in ballot application. For the first time, voters must provide a driver’s license number, Florida ID card number or the last four digits of their Social Security number (SSN) to request a mail-in ballot.
S.B. 90 includes a vague provision that can be construed as a line-warming ban, which the court also refers to as a “non-solicitation provision.” Non-election workers cannot engage in “any activity with the intent to influence or effect of influencing a voter” within 150 feet of a polling location.
How does the law impact voters?
In 2020, almost 1.5 million Floridians voted using a drop box, meaning that about 30% of all mail-in ballots cast in the state were submitted via a drop box. The widespread availability of drop boxes contributed to their use: they were placed at early voting locations and election offices, with some counties offering up to 30, and many were available 24 hours a day. This method of voting was especially useful for voters with inflexible working hours or who have time or logistical constraints limiting their ability to vote in-person.
Under S.B. 90, the drop box hours and locations are significantly reduced. Underserved and under-resourced counties may not be able to staff drop boxes and voters will have to travel longer distances to find a drop box. All of these changes “effectively cut hundreds of hours during which drop boxes would otherwise be available to voters, including in the final seven days before election day, when the state acknowledges it could be too late to mail a vote-by-mail ballot to ensure it is delivered in time to be counted.”
The plaintiffs argue that this reduction in availability will disproportionately affect Black and Latino voters who “tend to have stricter and more unpredictable work obligations that limit their availability during normal voting hours, and who tend to encounter longer lines at their designated polling places.”
Under S.B. 90, the drop box hours and locations are significantly reduced. Underserved and under-resourced counties may not be able to staff drop boxes and voters will have to travel longer distances to find a drop box. All of these changes “effectively cut hundreds of hours during which drop boxes would otherwise be available to voters, including in the final seven days before election day, when the state acknowledges it could be too late to mail a vote-by-mail ballot to ensure it is delivered in time to be counted.”
The plaintiffs argue that this reduction in availability will disproportionately affect Black and Latino voters who “tend to have stricter and more unpredictable work obligations that limit their availability during normal voting hours, and who tend to encounter longer lines at their designated polling places.”
As opponents of S.B. 90 testified during legislative hearings, “so many Florida voters believe that their request is valid for two general election cycles that it is likely that some voters will not realize their request has expired until it is too late to receive a ballot for a coming election.” Organizations and election workers will now have to re-educate voters about this change, while election workers will have to process twice as many mail-in ballot requests than previous cycles, all of which have the potential to cause voter confusion and delays.
3PVROs now have to unjustifiably warn applicants that they may not deliver their forms on time and encourage them to use alternative methods of applying — assuming the applicant has access to online and physical options. This warning will only deter voters from engaging with and trusting organizations with a track record of mass registration and mobilization.
This also directly diminishes the success of community-based voter registration drives, which have historically been used in marginalized communities. As of November 2020, about 29% of eligible white citizens are unregistered compared to 35% of Black citizens, 44% of Asian American citizens and 41% of Hispanic citizens. Considering the fact that voters of color are more likely to register at a registration drive, school, hospital or campus compared to white voters, community-based registration drives play a key role in expanding voter registrations.
Under S.B. 90, however, organizations who run such efforts will be hampered in their ability to sign people up to vote and may even deter those in marginalized communities from signing up to vote. Furthermore, the strict 14-day window to return registration applications might have a chilling effect on organizations and deter them from offering registration resources for fear of breaking the law.
This also directly diminishes the success of community-based voter registration drives, which have historically been used in marginalized communities. As of November 2020, about 29% of eligible white citizens are unregistered compared to 35% of Black citizens, 44% of Asian American citizens and 41% of Hispanic citizens. Considering the fact that voters of color are more likely to register at a registration drive, school, hospital or campus compared to white voters, community-based registration drives play a key role in expanding voter registrations.
Under S.B. 90, however, organizations who run such efforts will be hampered in their ability to sign people up to vote and may even deter those in marginalized communities from signing up to vote. Furthermore, the strict 14-day window to return registration applications might have a chilling effect on organizations and deter them from offering registration resources for fear of breaking the law.
Under S.B. 90’s restrictions, voters who lack the proper documentation will not be able to request a mail-in ballot. The Florida Rising plaintiffs argue that the new requirements consist of documentation that “Florida legislators must have known voters of color disproportionately lack.” According to the plaintiffs, there are tens of thousands of voters, many of whom are Black or Latino, who lack photo IDs or SSN documentation.
Given the high rate of mail-in voting used in Florida during the 2020 general election, with about 40% of votes cast by Black voters and 41% of votes cast by Latino voters done via the mail, it’s easy to see how these restrictions will decrease the use of mail-in ballots in the future. An individual who cannot cast a mail-in ballot will then have to navigate the logistics and potential complications of in-person voting.
Given the high rate of mail-in voting used in Florida during the 2020 general election, with about 40% of votes cast by Black voters and 41% of votes cast by Latino voters done via the mail, it’s easy to see how these restrictions will decrease the use of mail-in ballots in the future. An individual who cannot cast a mail-in ballot will then have to navigate the logistics and potential complications of in-person voting.
In Florida, lines at the polls tend to be significantly longer in Black and Latino communities, which in turn can harm voters and even deter them from casting a ballot. Senior voters and voters with disabilities, along with any voter forced to wait in a long line, also face burdens impacting their ability to vote when they spend an undue amount of time waiting to vote.
In the past, organizations have helped alleviate this by offering food and drinks at polling places. However, S.B. 90 restricts this activity, exacerbating the burden of those waiting in long lines.
In the past, organizations have helped alleviate this by offering food and drinks at polling places. However, S.B. 90 restricts this activity, exacerbating the burden of those waiting in long lines.
What are the plaintiffs arguing?
- The plaintiffs collectively argue that the challenged provisions of S.B. 90 place an undue burden on the right to vote in violation of the First and 14th Amendments. They argue that each of the challenged provisions individually make voting harder, and together, they negatively affect nearly every step of the voting process without any reasonable justification. Individuals may be discouraged from registering to vote with 3PVROs due to the misleading “disclaimer” they must provide applicants.
- Obtaining and returning a mail-in ballot is made more difficult by new mail-in ballot application requirements and limited drop box availability. If people are unable to navigate the myriad restrictions on voting by mail, they’ll have to turn to in-person voting and potentially face long lines where handing out food or water is criminalized. All of these burdens disproportionately fall on Black voters, Latino voters, voters with disabilities and senior voters, according to the plaintiffs.
- Further, S.B. 90 appears to specifically attack methods of voting, such as voting by mail, used by Black and Latino voters in the 2020 election cycle. Some plaintiffs argue that the law intentionally discriminates against these voters of color in violation of the 14th and 15th Amendments and and disproportionately affects the right to vote for Black and Latino voters in violation of Section 2 of the Voting Rights Act (VRA).
- Some plaintiffs also argue that the limitations on assisting voters with disabilities violates Section 208 of the VRA and the Americans with Disabilities Act.
- Finally, some provisions, including the volunteer assistance restriction, line-warming ban and deceptive registration warning, are challenged for violating the First Amendment’s protection of free speech and association.
What are the defendants arguing?
- The state-level defendants and the GOP intervenors allege that the plaintiffs lack standing to argue that four provisions — the drop box restrictions, voter registration disclaimer, mail-in ballot repeat request requirement and line-warming ban — are unconstitutional due to how they are written (known as a “facial challenge”).
- The defendants also argue that the challenged provisions do not burden or only create a “minimal burden” on the right to vote; that they were not enacted with discriminatory intent nor will they prevent minority voters from being able to vote; and that they comply with all federal laws protecting voters with disabilities. Four county supervisors of elections are actively fighting alongside the other defendants against the lawsuits, while the rest have stated that they do not take a position and will not argue in defense of S.B. 90 at trial.
What has happened so far?
After the cases were filed in May and June of 2021, three significant things happened.
- First, the RNC and NRSC intervened in the cases to defend S.B. 90. They argue that overturning the voter suppression law would change the structure of the competitive environment in which Florida holds its elections, harming their electoral interests and discouraging Republican voters from voting.
- Second, the defendants sought to end the cases by filing motions to dismiss. Judge Walker granted and denied the motions in part, meaning that some claims were dismissed while others moved forward. Of note, the court dismissed claims brought in three of the cases against S.B. 90’s volunteer assistance restriction, which states that an individual can only return two mail-in ballots total, unless the ballot belongs to themself or an “immediate family member.” The court found that the plaintiffs lacked standing to sue the named defendants. Some of the other claims were dismissed as to certain defendants but remain for others, which you can read more about here.
- Third, the defendants tried one more time to end the cases before they could make it to trial by filing motions for summary judgment (when one party asks the judge to rule on a portion or all of a case without a full trial). The judge granted the Florida secretary of state’s motion for summary judgment in part regarding the plaintiffs’ assertion that the banning of food and water to voters waiting in line is always unconstitutional on its face (facial challenge), meaning that specific claim will no longer be litigated. However, the plaintiffs are still allowed to challenge the line-warming ban “as-applied,” meaning they can argue that the line-warming ban is unconstitutional when applied in certain contexts. All of the plaintiffs’ other claims withstood the defendants’ motions for summary judgment and are headed for trial, where Chief Judge Walker will determine the validity of the arguments.
What’s next?
A two-week bench trial is scheduled to start on Monday, Jan. 31. The four cases have been consolidated for trial, meaning all of the plaintiffs will present their arguments, evidence and witnesses to the judge at once. The trial will not be streamed or recorded, but we’ll update you on any significant developments that take place in the courtroom. After the conclusion of the trial, Chief Judge Walker will determine if the challenged provisions of S.B. 90 violate the U.S. Constitution and federal law as alleged and, if so, could block some or all of the provisions from being enforced.