DeSantis calls for more election ‘guardrails’; Biden says it is voting rights that need protection

‘Freedom To Vote Act’ and outcome of lawsuit against 2021 FL election reforms could be deciders

By: - January 12, 2022 7:00 am

Credit: Mario Tama/Getty Images

With mid-term elections in sight, Gov. Ron DeSantis added his take on voting rights and election integrity to his State of the State address this week, intensifying a state and national fight over making it harder or easier for Americans to vote.

While continuing to imply that elections are vulnerable to fraud, DeSantis failed to mention that Florida just eight months ago enacted laws curtailing the use of ballot drop boxes and adding a bevy of so-called guardrails to the state’s widely commended 2020 election administration.

The new law, adopted as Senate Bill 90, installs so many “guardrails” that voting-rights organizations such as the League of Women Voters of Florida and the NAACP immediately filed lawsuits to have it struck down as unconstitutional.

A consolidated lawsuit is set to be heard on Jan. 31 in federal court.

Nevertheless, DeSantis has hinted that more election reform could be coming — for better or for worse.

“Ballot harvesting has no place in Florida, and we need to increase the penalties for those who do it. We also need to ensure that supervisors clean the voter rolls, that only citizens are registered to vote and that mail ballots only go to those who actually request them before each individual election,” DeSantis said in his State of the State address.

Just across the road from the Capitol, Leon County Supervisor of Elections Mark Earley said state law already ensures that Florida elections are accurate and secure, as demonstrated in 2020, with record voter turnout amid the COVID-19 pandemic and untainted, same-day results — which showed gains in Florida for Republicans.

“The concerns addressed by the governor appear to be what we as supervisors of elections are already required to do by statute and which we do as part of our daily responsibilities of office,” Earley told the Phoenix.

BIDEN ON ‘FREEDOM TO VOTE ACT’

In a very different speech Tuesday, President Joe Biden announced in Atlanta that he now supports a change in Senate rules to amend the filibuster that has blocked a vote on new federal voting-rights legislation. The “Freedom To Vote Act” adopted in the U.S. House and awaiting approval in the U.S. Senate would unravel the toughest of voting restrictions sweeping red states across the nation.

“To protect our democracy, I support changing our Senate rules, whichever way they need to be changed to prevent a minority of senators from blocking action on voting rights,” Biden said in the speech. “When it comes to majority rule, the majority should rule in the United States Senate.”

Six days ahead of the nation’s commemoration of the birthday of civil rights leader Dr. Rev. Martin Luther King Jr., Biden cast voting rights and the coast-to-coast campaign to limit them as two sides of a moral choice.

“Will we choose democracy over autocracy, light over shadows, justice over injustice?” Biden said. “I know where I stand. I will not yield. I will not flinch. I will defend the right to vote and our democracy against all enemies, foreign and, yes, domestic.

“Do you want to be on the side of Dr. King or George Wallace? Do you want to be on the side of John Lewis or Bull Connor? Do you want to be on the side of Abraham Lincoln or Jefferson Davis?”

In Tallahassee, DeSantis in his speech called for additional election guardrails such as formation of an “election integrity unit” — which he said would solely focus on enforcing Florida’s election laws, although supervisors of elections across the state reported no significant fraud or even irregularities in the primary, general and local elections of 2020 and 2021.

DeSantis announced in November he wants the Legislature to create such a unit and to make “ballot harvesting” a third-degree felony, require “timelines for supervisor of elections to clean the voter rolls of ineligible voters” and to “prohibit unsecure, haphazard drop box locations.” (Ballot harvesting is the term for one person transporting large numbers of ballots on behalf of others.)

Suggestions that voting rolls are unclean is a trend underlying lawsuits recently filed by conservative groups such as the Honest Elections Project in Colorado, North Carolina, Ohio, and the District of Columbia.

The lawsuits claim the election supervisors should be even more diligent than they are about scouring voters rolls to remove anyone who should not be included.

Jeff Loperfido, an attorney with the Southern Coalition for Social Justice, is helping fight the lawsuit in North Carolina. In this story by States Newsroom democracy reporter Kira Lerner, Loperfido said such lawsuits target swing states, urban areas and Democratic strongholds with high concentrations of people of color.

An attorney in the North Carolina lawsuit is William Consovoy, whose legal work contributed to the gutting of the Voting Rights Act in 2013. He also promotes Trump’s false claim that he won the 2020 election, Lerner reported.

DeSantis said his proposed measures in Florida will continue what Senate Bill 90 started.

“This will facilitate the faithful enforcement of election laws and will provide Floridians with the confidence that their vote will count,” DeSantis said in his speech.

WHAT’S THE PROBLEM?

Cecile Scoon, president of the League of Women Voters of Florida, said DeSantis’ remarks tend to erode, not bolster, voter confidence by suggesting measures are needed to remedy problems that don’t exist. She pointed out that DeSantis was exuberant in 2020 about Florida’s administration of elections.

“These laws that are being created make voting more difficult, and there is no basis for them. He said so himself, right after the 2020 election — how Florida should lead the nation in how to run elections,” Scoon told the Phoenix late Tuesday after testifying at state House hearings on redistricting.

“When he’s complaining about problems we don’t have, you have to wonder who he’s talking to,” Scoon said.

Nearly all of Florida’s 67 supervisors of elections — elected officials who include Republicans, Democrats and independents — opposed the measures adopted in Senate Bill 90.

Supervisors including Republican former state Sen. Alan Hays, now the election supervisor in Lake County, testified against SB 90 in the 2021 Legislature, saying there was no need for those reforms, that they are burdensome to election officials and voters, and that they add millions of dollars to the cost of administering elections. In fact, he questioned why lawmakers adopted the reforms in SB 90 but paid little attention to the changes supervisors actually asked for.

Scoon added that DeSantis’ proposed election integrity unit would cost $5.7 million to root out fraud for which there is no evidence, when the Florida Department of Law Enforcement is already trained and available to investigate any allegations of election fraud.

Whether DeSantis succeeds in passing more election guardrails is up to the 2022 Legislature.

But in the big picture, the federal votings rights legislation pending in the Senate and the upcoming trial over the constitutionality of Senate Bill 90 may be more impactful.

The Freedom To Vote Act, which is a scaled-down version of its predecessor, the John Lewis Voting Rights Advancement Act, would restore key provisions of the historic 1965 Voting Rights Act, which was gutted by Congress eight years ago. The change in 2013 plays a substantial role in this year’s redistricting because it removed a provision requiring federal preclearance of new voting boundaries in areas where racial gerrymandering has occurred.

The Freedom To Vote Act would, among other things, expand access to early voting and voting by mail, restore voting rights to formerly incarcerated people, ensure people with disabilities have full access to the ballot, prevent illegal voter purges, ban gerrymandering in redistricting, set a nationwide standard for voter validation, and make Election Day a national holiday, all to help voters cast their ballots.

ELECTION GUARDRAILS ON TRIAL

The Republican-crafted election reforms adopted by legislators last spring immediately drew fire from voting-rights organizations whose lawsuits against the DeSantis administration will be tried in federal court at the end of this month.

The stakes are high, with voting rights and the authority of state government to limit how those rights are exercised at the heart of the matter.

The lawsuit will determine whether Senate Bill 90 will stand or fall. Its detractors say the new law puts obstacles in the way of voters, especially those who vote by mail, for no legitimate reason – suppressing their right to vote.

If recent filings in the case are in indication, the courtroom battle will be hard-fought, with heavyweights such as the League of Women Voters of Florida and the NAACP seeking to strike down the reforms while heavyweights such as the Republican National Committee, Florida Attorney General Ashley Moody and Secretary of State Laurel Lee defend the new laws.

Recent rulings by federal Judge Mark Walker indicate he will give the evidence intense scrutiny and will prioritize substance over legal gamesmanship.

For example, he denied a motion to block testimony by Florida legislators familiar with the legislative proceedings that produced SB 90. He likened the technical legal argument to a poorly handled “slip-and-fall case.”

“Such an argument would not cut it there, nor does it cut it here,” Walker said in his ruling. In other examples, he noted legal shortcomings in certain motions but weighed their merits and ruled on them anyway.

“Even though this court extended the deadline to respond … defendants apparently chose not to respond,” he observed, allowing him to rule against them by default. Nevertheless, he gave them another chance, writing, “This court is inclined to the hear the parties’ evidence and then decide what weight, if any, to give it.”

Walker’s Jan. 4 omnibus order on 11 motions to limit testimony by various witnesses suggests a surgically precise approach.

Of the 11 motions, Walker granted one motion filed by the plaintiffs (League of Women Voters and others) and denied six of them.  He denied both motions filed by the defendants (Laurel Lee and others) and by the intervenors (National Republican Senatorial Committee and Republican National Committee). He partially granted and partially denied two other motions, giving both sides a slice of victory.

The Brennan Center for Justice reports that Florida’s SB 90 is much like voting restrictions adopted in 18 other states across the nation after the 2020 general election in which Biden was elected president and former president Donald Trump was defeated. Trump disputed the outcome, although fellow Republicans made numerous gains on the same ballot in Congress and statehouses across the country.

The false claim that Trump’s defeat was caused by widespread voter fraud and corruption among election officers — has been disproved by more than 60 court reviews, but his “Stop the Steal” slogan remains a rallying cry for his supporters.

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Laura Cassels
Laura Cassels

Laura Cassels is a reporter, former statehouse bureau chief, and former city editor. She is a classical pianist, a Florida State University graduate and proud alum of the Florida Flambeau, an independent college newspaper. Contact her at [email protected]

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