Federal judge says parts of 2021 Florida voting law are unconstitutional

TALLAHASSEE — A federal judge ruled that multiple parts of a voting law signed by Gov. Ron DeSantis last year are unconstitutional, striking down various provisions and prohibiting the Legislature from passing future voter laws without first getting approval from a court.

In a sweeping 288-page order declaring the right to vote “under siege,” U.S. District Judge Mark Walker on Thursday forbade lawmakers from passing future laws involving drop boxes, third-party voter registration or efforts to limit “line warming” activities at polling sites without the court’s approval for the next 10 years.

All three provisions were part of Senate Bill 90, passed by lawmakers and signed by DeSantis last year.

A number of voting rights groups sued to stop the law last year, claiming it was unconstitutional. After a two-week bench trial this year, Walker agreed, finding that lawmakers intended to discriminate against Black voters when they passed the law.

“In so ruling, this Court recognizes that the right to vote, and the (Voting Rights Act of 1965) particularly, are under siege,” Walker wrote.

Walker ordered state and local officials to not enforce parts of the bill, including:

• A provision that limited the use of ballot drop boxes to early voting hours, unless they’re in a supervisor’s office, and required the boxes to be manned at all times;
• A requirement that third-party groups issue a warning when trying to register voters, including telling voters that their registration application might not be turned in before the voter registration deadline or within the required 14 days.
• A provision that changed the rules around the “no-solicitation zone” around a polling site to prohibit “any activity with the intent to influence or effect of influencing a voter.”

In his ruling, Walker wrote that the defendants in the lawsuit, which include Secretary of State Laurel Lee and Attorney General Ashley Moody, argued that the law “makes minor prophylactic changes to the election code.”

The plaintiffs, including the League of Women Voters of Florida and the NAACP, argued that the bill “runs roughshod over the right to vote, unnecessarily making voting harder for all eligible Floridians, unduly burdening disabled voters, and intentionally targeting minority voters — all to improve the electoral prospects of the party in power,” Walker wrote.

“Having reviewed all the evidence, this Court finds that, for the most part, Plaintiffs are right,” Walker wrote.

Walker, who was appointed to the bench in Tallahassee by former President Barack Obama, has ruled against Republican lawmakers on numerous issues over the years. Walker noted that he’s heard 17 voting-related cases in Florida and ruled against the state in six of those. Of those six, the state appealed two, and one of those two decisions by Walker was overturned.

‘A drastic remedy’

DeSantis called the ruling “performative partisanship” by a judge he expects to rule against the state, and said the only question is “how quickly” Walker’s decision will be reversed on appeal.

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”There’s an old saying in law: If you have the facts on your side, argue the facts, if you have the law on your side, argue the law, and if you have neither you pound the table,” he said during a news conference in West Palm Beach. “This is the judicial equivalent of just pounding the table.”

House Speaker Chris Sprowls, R-Palm Harbor, said in a statement that Walker’s accusation of discriminatory intent was based on a disregard for other viewpoints and amounts to a “conspiracy theory.” He also said the call for court approval of new laws is an “egregious abuse of his power.”

Walker justified the decision under section 3(c) of the Voting Rights Act, which says if the court finds intentional race discrimination along with a violation of the 14th or 15th amendment, the court can retain jurisdiction. Section 3(c) is rarely cited, used fewer than 20 times in the last 48 years, according to the order.

Walker said he evaluated factors like whether violations were persistent, whether they’re likely to reoccur and how political developments affect the possible recurrence of a violation.

“Both the Governor’s Mansion and the Legislature are controlled by a party that, in the words of its own expert witness, stands to gain ‘if voting were to decrease among African Americans,’” Walker wrote in his order.

In justifying his decision, Walker also wrote that without preclearance, the Legislature can continue to pass unconstitutional restrictions that people live with for long stretches before litigation runs its course.

Walker wrote he feels “reticence” about requiring court approval for future election changes but said it’s warranted. He said his order falls only on a specific subset of voting laws, instead of all election laws, because he recognizes it is a “drastic remedy.”

‘Florida goes too far’

Walker acknowledged that states have “considerable discretion” in regulating elections.

“Sometimes, however, Florida goes too far,” he wrote.

Florida lawmakers said they passed Senate Bill 90 to combat voter fraud following the 2020 election, in which President Donald Trump alleged that widespread fraud cost him the election.

During the trial, witnesses for the plaintiffs testified that the legislation has already had a chilling effect on current and potential voters.

The drop box provision has caused supervisors to remove locations, they noted.

Third-party registration groups, including the League of Women of Voters of Florida, testified that potential voters have been turned off when they’re read the warning that the group might not turn in their application in time. (Senate Bill 524, passed this year, deletes the disclaimer, an apparent attempt to get around the judge’s concerns during the trial.)

And they also testified that the law surrounding the “no-solicitation” zone around polling places was vague. Although the law explicitly states that “solicitation” does not prohibit “nonpartisan assistance,” including “giving items to voters,” the NAACP testified that the Volusia County elections supervisor already told the group it could no longer conduct “line warming” activities under the new law.

Walker noted that the provisions disproportionately affect minority voters.

“Black and Latino voters are more likely to wait in long lines, and SB 90′s other provisions will exacerbate those lines,” he wrote. “Minority voters disproportionately rely on (third-party registration groups) to register to vote, but SB 90 will make it tougher for these groups to operate.”

Plaintiffs also challenged other parts of the law, including a new requirement that requests for a vote-by-mail ballot last for two years, instead of four years, but Walker found that that change was not a burden.

A ‘grotesque history of racial discrimination’

Walker agreed with the plaintiffs that the Legislature passed the law with the intent to discriminate against Black voters. Plaintiffs did not prove that lawmakers also intended to discriminate against Hispanic voters, however, he said.

The 14th and 15th Amendments to the Constitution, along with the Voting Rights Act of 1965, all prohibit race discrimination in voting.

“The question before this Court is not whether the Florida Legislature is racist. Nor is the question whether SB 90′s sponsors are racists,” Walker wrote. “Rather, the question is whether race was a motivating factor in SB 90′s adoption.”

He pointed to the state’s “grotesque history of racial discrimination” against Black voters, beginning with reconstruction after the Civil War, when Black voters briefly outnumbered white voters in the state. Through poll taxes, literacy tests and outright violence, white lawmakers and local officials eliminated opportunities for Black voters.

By 1960, for example, there were only seven Black voters in Gadsden County, despite having more 12,000 Black residents eligible to vote, Walker noted.

In the last 20 years, Walker wrote, lawmakers have continued the pattern.

The state enacted numerous voter purges that disproportionately affected minorities. After the 2004 election, in which Black voters used early voting at a higher rate than white voters, lawmakers limited the availability of early voting. After the 2008 and 2010 elections, in which Black voters still exceeded white voters in early voting, lawmakers again limited early voting, including eliminating early voting on the Sunday before Election Day, when Black voters and churches mobilized “souls to the polls.”

And, Walker noted, after Florida voters overwhelmingly passed an amendment to the constitution eliminating the state’s lifetime ban on felon voting — which had disproportionately affected Black voters — lawmakers passed a law requiring felons to pay back all court fees and fines before being allowed to vote. Black felons are more likely to owe money than white voters, data found.

Although judges found those laws had discriminatory effects, the judges did not rule that lawmakers intended to discriminate. But Walker wrote that the pattern was undeniable.

“Once is an accident, twice is a coincidence, three times is a pattern,” Walker wrote. “At some point, when the Florida Legislature passes law after law disproportionately burdening Black voters, this Court can no longer accept that the effect is incidental.”

Read the entire order here:

Times Political Editor Emily L. Mahoney contributed to this report.

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