It is widely known that several red states enacted new restrictive voting laws in the wake of the 2020 election. Now, the first trial for any of these voter suppression laws has been completed in Florida. For a full summary of Senate Bill 90’s provisions and the four lawsuits challenging them, read our Case Watch, “Florida’s New Voter Suppression Law Goes to Court.”
In early February, there was a two-week bench trial (all four cases were consolidated) where both sides presented witnesses and evidence before Chief Judge Mark Walker of the U.S. District Court for the Northern District of Florida. Here’s what emerged — over 30 witnesses, a 3,632 page trial transcript (which will be publicly available in May), thousands of pages of exhibits admitted into evidence and extensive post-trial briefs from each party.
Post-trial briefs were submitted by parties summarizing what they want the court to take away from the trial; it’s important to note that these are not actual court findings. Here we summarize three takeaways from the trial based on these briefs.
1. Florida’s elections officials don’t want S.B. 90. The new restrictions make their jobs unnecessarily harder.
Florida’s 67 county supervisors of elections, who include Republicans and Democrats alike, had near unanimous disapproval of S.B. 90. Only four supervisors decided to actively participate in the trial as defendants; the 63 others did “not intend to present a defense on its merits.”
In contrast to previous election related legislation, Florida’s supervisors of elections were not consulted throughout the drafting or legislative process for S.B. 90. At trial, the president-elect of the Florida Supervisor of Elections Association (FSE) stated: “I don’t think [FSE] ever made a statement as an association, certainly, that it was a necessary change in statute or necessary bill, just the opposite. I think we said repeatedly it was not.”
The civil servants who most intimately understand the needs and challenges of election administration weren’t pleased by the result. “[S]weeping election reform was not needed or requested by Supervisors of Elections,” explained FSE’s former President, Supervisor Craig Latimer, after S.B. 90 passed. “And making a lot of changes all at once has the potential to create voter confusion, more cumbersome administration and bureaucracy, and worst of all, an erosion of the confidence we’ve worked so hard to earn.”
Notably, there was one challenged provision that stood out as particularly worrisome for elections officials — the mail-in ballot repeat request requirement.
Under S.B. 90, voters must reapply for a mail-in ballot before every general election (every two years). In contrast, the previous law enacted in 2007 allowed voters to reapply every two general election cycles (every four years). Now, voters who are used to this two-cycle timeline may not receive the ballots they expect.
The supervisor of elections for Miami-Dade County, Christina White, testified that around 400,000 voters in her county (she estimates up to 500,000 by Election Day) are on a standing list expecting a ballot in both 2022 and 2024. “So if you or somebody who requested in 2021, it is now valid through the end of 2022, where under the previous law it would have been valid through the end of 2024,” White explained on the stand. White will have to wipe that database clean and start rebuilding it from scratch; she expects that the process of educating voters about these new rules may cost up to $400,000.
“Voters who do not re-enroll may lose their opportunity to vote,” White concluded.
2. Don’t forget — voter suppression laws are bad because they harm voters. There is a real impact on real people.
There’s a tendency for the effects of voter suppression bills to be spoken about in the abstract, aggregate or with political framing. But the real tragedy of these laws takes place if even one voter is disenfranchised because of them. During the two-week trial, the plaintiffs brought forward individual voters to describe the adverse effects of the new law on their voting options.
Here’s just a small sample of how S.B. 90 will impact voters:
- An 87-year old resident with a medical condition that requires quick access to a bathroom testified against S.B. 90’s drop box restrictions. As a result of recent bad experiences with the U.S. Postal Service, the voter is unwilling to mail his ballot and prefers drop boxes, the number of which would be significantly reduced under the new law. The drop box he used in the 2020 election was extremely accessible because it “was not in the Supervisor’s office; it was across the street.” As someone sensitive to delays, the senior resident testified that if he had an onset of his condition while attempting to vote, he would have to leave: “I would go home. Stop what I was doing and go home and then hope I could get back another day.”
- Another resident, who has severely impaired vision, had previously checked the option to automatically receive a mail-in ballot in upcoming elections. In light of the new mail-in ballot repeat request requirement, this voter testified that she doesn’t know for certain how to request a ballot for future elections. “It’s not real clear to me what I do need to do,” she explained. “It was such a simple system before that you could just request your ballot every year by checking a box.”
- Even though there are already strict laws in place regarding third-party voter registration organizations, S.B. 90 requires these organizations to tell applicants they “might not deliver” their voter registration form to elections offices on time — even if the organizations have every intent and the ability to do so. An individual who previously volunteered with these third-party organizations testified about his concern over the unnecessary disclaimer. “I felt it was insulting. I felt — obviously, it’s not my intent not to return it on time,” he said. “I also felt the people would be much more reluctant to give me their registration or register with me, so I had not planned to do anymore for a while until just recently.”
- Organizations, such as the Florida NAACP, stated that they will find it substantially more difficult to pursue their mission of voter engagement because of the new provisions. For example, the Florida NAACP previously provided non-partisan relief to voters waiting in long lines, often in minority communities — they distributed water, snacks, fans, umbrellas, ponchos and chairs to those who needed it. Under S.B. 90, this activity is a crime.
3. The GOP’s dominant voter fraud claims don’t find the same footing in the courtroom.
Throughout the trial, the state defendants continued to make implications that the civil and voting rights organizations challenging this law were committing various crimes. In response, the plaintiffs filed a motion to preclude the defendants from making such unfounded implications: “Defendants’ repeated insinuations of illegal or criminal conduct are inappropriate, offensive, and time-wasting. Such questions, and the answers they are attempting to solicit, are irrelevant.”
In this trial, the GOP defendants (and intervenors Republican National Committee and National Republican Senatorial Committee) continued their desperate search to find voter fraud where none exists. Plaintiff expert witnesses testified to the non-existence of such fraud, citing a conservative database that only identified 15 instances of possible fraud from the millions of votes cast in Florida between 2003 and 2020.
This is part of a larger trend — the GOP loves to talk big about voter fraud in the media and in legislative chambers, but when it comes to the courtroom, under oath and threat of legal sanction, the evidence just isn’t there and the arguments just don’t line up. Instead, in their post-trial briefs, the state-level and intervenor defendants discussed the concern “about fraud that goes undetected” and the “potential for fraud in the future.” In lieu of the brazen voter fraud claims that take place outside of the courtroom, the defendants cited the state interest in “increasing confidence in elections” and “modernizing [the state’s] elections procedures” as other justifications.
This trial provides a clue into what we may see across the country this spring as more voter suppression laws get their day in court. Now, we await the decision from Judge Walker. In the meantime, you can find all the court documents, including the post-trial briefs, here.