UF professor, previously blocked from case, testifies in election-law challenge

Daniel Smith cites evidence of disparate impact on minorities, disabled

By: - February 9, 2022 12:00 pm

Ballot drop box in Florida’s state capital. Credit: leonvotes.gov

A University of Florida political scientist testified Wednesday that Florida’s new restrictions on voting access are proving especially burdensome to disabled people and members of the Black and Hispanic communities.

Daniel Smith, chairman of UF’s Department of Political Science, said he analyzed data provided by Florida’s supervisors of elections to draw conclusions about what the restrictions — which the Legislature adopted last year as SB 90 — mean for actual voters.

Daniel Smith. Credit: UF

For example, the law restricts use of drop boxes unless they are monitored, plus their use is forbidden outside 14-day periods allowed for early in-person voting. The data are spotty, Smith said, but records in 14 counties covering the 2020 general election showed use of drop boxes outside the early-voting periods ranging from around 52 percent to 72 percent.

In Pinellas County, nearly 77,000 votes were cast through drop boxes that would not be available under SB 90, he said, or around 40 percent of the total cast.

Supervisors are moving drop boxes exclusively to inside their headquarters and branch offices.

Smith’s testimony came in the middle of Week Two of a trial conducted via Zoom before U.S. District Judge Mark Walker in Tallahassee. Civil- and voting-rights groups including the League of Women voters contend the law was designed to make voting more difficult and cast doubt about the security of the voting process, in line with former President Donald Trump’s aspersions about the 2020 election that replaced him in office with Democrat Joe Biden.

Florida Attorney General Ashley Moody is defending the law, along with attorneys representing the state and national Republican Party. They haven’t had a chance to make their case yet, but during cross examination of plaintiffs’ witnesses have attempted to demonstrate that the law won’t significantly impede access to voting.

Smith was one of three UF professors whom the university attempted to block from participating in the case because administrators didn’t want to take a position contrary to Gov. Ron DeSantis, who pressed for the new law, or the Florida Legislature, which OKs money for the university.

Ruling on Jan. 22 on the professors’ challenge to the university policy, Walker concluded that UF was violating their First Amendment rights and blocked enforcement on any restrictions of professors’ service as expert witnesses in litigation.

Under questioning Wednesday by Benjamin Duke, representing the NAACP Legal Defense & Educational Fund, Smith testified that the law, in fact, does impede voting.

“This puts constraints on individuals who might want to be able to deposit their ballot,” Smith said of drop box restrictions.

They include the disabled, who might find it difficult to vote in person or go inside a supervisor’s office to drop a ballot in a box. During 2020, some supervisors provided drive-through drop boxes.

“It really is also affecting people who may be working during the normal business days, or may be working on the weekend and have not the ability to come by during those much more narrowly prescribed hours,” he said.

Even though no supervisor has reported problems with drop boxes, he noted.

Smith testified that he was able to measure use of overnight ballot drops in three counties by reviewing time stamps. In Okeechobee County, those data show use of the boxes by around 27 percent of voters; in Indian River, 21 percent; and in Manatee, 11.6 percent.

He estimated other counties would report similar numbers.

Smith proposed an analogy with ATMs if the same rules applied to banks — that they could only operate the machines during working hours and had to constantly monitor them.

“This is going to have an impact that is disparate for different types of voters. Voters who may be working normal, nine-to-five jobs who cannot drop off a ballot during those times when they’re working, or who have family issues that demand child care,” he said.

“It’s like the, you know, home-health worker after a long 12-hour shift with a check on a Friday coming to her bank and the bank now says, ‘Nope, sorry, you can’t drop off your check in the ATM. We don’t have a staff person who’s willing to stand out there. You’re going to have to do it during normal business hours.’ and she works Monday through Friday, 7 a.m. to 7 p.m.”

“It’s going to make it very difficult for someone like that to deposit a check, and I suspect it’s going to be very similar for individuals who want to vote securely and safely with a vote-by-mail ballot, not leave it to the vagaries of the Postal Service.”

Smith reviewed data from Columbia County to draw inferences about the harm to racial minorities by using voter ID numbers to identify the ethnicity of people who cast ballots via drop boxes outside the 14-day early in-person voter window.

He found, he said, that Blacks cast 52.4 percent of those ballots; Hispanics cast 41.3 percent; and whites cast 50.2 percent.

Manatee County’s data give an idea about the racial breakdown of after-hours voting, Smith said. They showed the rate for Blacks was 13.5 percent; for Hispanics, 13.4 percent; and for whites, 11.4 percent.

He reported similar findings regarding a provision requiring voters to request vote by mail ballots every two years, rather than every four.

“We know that individuals with disabilities have more difficulty interfacing to be able to have their ballots delivered; the literature is very clear on that,” Smith said.

“This is going to affect millions of voters in Florida who rely on vote-by-mail ballots and have relied on a standing request to have ballots sent to them unprompted except for the check-off boxes they are able to use that have been designed by supervisors to allow the ease of having ballots delivered,” he said.

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Michael Moline
Michael Moline

Michael Moline has covered politics and the legal system for more than 30 years. He is a former managing editor of the San Francisco Daily Journal and former assistant managing editor of The National Law Journal.