11th Circuit frees Florida to enforce limits on voter registration, ballot drop boxes

Appellate panel also overrules order to submit voting changes for preclearance

By: - May 6, 2022 1:09 pm

Engage Miami Civic Foundation, a grantee of the Southern Poverty Law Center’s “Vote Your Voice” initiative, hosts a voter-registration drive to encourage voting among young, minority citizens. SB 90 makes administration of such drives more difficult. Credit: Engage Miami Civic Foundation

A federal appeal court has blocked enforcement of a trial judge’s ruling striking down key elements of a voting-restrictions law the Florida Legislature adopted last year, meaning the state can enforce those provisions during balloting this year.

A three-judge panel of the U.S. Court of Appeal for the Eleventh Circuit in part cited U.S. Supreme Court precedent discouraging judicial intervention in elections too close to election day, lest doing so confuse voters.

Lagoa
Barbara Lagoa. Credit: Florida Third District Court of Appeal website.

That 2006 ruling in Purcell v. Gonzalez didn’t define what “too close” means, but the 11th Circuit panel comprising Kevin Newsom, Barbara Lagoa, and Andrew Brasher — each appointed by former President Donald Trump — concluded that because preparations for the elections were already underway the state is entitled to enforce its law (SB 90). Lagoa is from Florida.

Judge faulted

The unsigned opinion faults Chief Judge Mark Walker of the U.S. District Court for the Northern District of Florida in Tallahassee for failure to extend a presumption of good faith. President Barack Obama appointed him in 2012.

“The Supreme Court has instructed that when a court assesses whether duly enacted statute is tainted by discriminatory intent, the good faith of the state legislature must be presumed,” the panel wrote.

“For starters, in its 288-page opinion, the district court never once mentioned the presumption. And while we do not require courts to incant magic words, it does not appear to us that the district court here meaningfully accounted for the presumption at all.”

There was no immediate reaction from Gov. Ron DeSantis, who pushed the Legislature into enacting the restrictions and predicted the state would prevail on appeal.

In fact, in his March 31 ruling Walker sketched an extensive history of legislative bad faith toward Black voters since Reconstruction and found that lawmakers haven’t let up even recently.

Mark Walker testifies to the Senate Judiciary Committee during his nomination hearing to be a federal judge on May 9, 2012. Credit: Public domain

“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. Based on the indisputable pattern set out above, this court finds that, in the past 20 years, Florida has repeatedly sought to make voting tougher for Black voters because of their propensity to favor Democratic candidates” Walker wrote.

Yet, the appellate panel concluded: “At least on our preliminary review, the district court’s inquiry does not seem appropriately focus[ed] limited.”

Burdens imposed

Specifically, Walker struck down language imposing burdens on organizations that conduct voter-registration drives in Black communities; restrictions on use of ballot drop boxes in locations and during hours most useful to Black voters; and a ban on “line warming,” or provision of food, water, and other assistance to people waiting in line to vote — which is more common in Black precincts.

He also ordered the state to submit any future revisions in those areas for preclearance by the U.S. Department of Justice or the federal courts for the next 10 years.

The state had agreed to suspend enforcement of the targeted provisions pending further developments. Now that the 11th Circuit panel has blocked enforcement of each of those aspects of Walker’s ruling pending further proceedings, the state is entitled to apply them.

The League of Women Voters of Florida, the Southern Poverty Law Center, the Fair Elections Center, the Harriet Tubman Freedom Fighters were among the voting-rights organizations that sued to block the law.

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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. He began his career covering the Florida Capitol for United Press International. More recently, he wrote for Florida Politics.

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