An appeals court questions a ruling against parts of Florida's election law
A judge said he wants to know "what evidence supports the district court’s finding of discriminatory intent.”
Arguing that the ruling was an “insult” to Republican state leaders, lawyers for Gov. Ron DeSantis’ administration and national GOP groups this week tried to convince an appeals court to overturn a federal judge’s ruling that parts of a 2021 Florida elections law were intended to discriminate against Black voters.
The Republican-controlled Legislature and DeSantis approved the election-law changes as GOP leaders across the country pushed to revamp voting laws after former President Donald Trump’s loss in 2020.
While Florida had a relatively smooth 2020 election, Republicans said changes were needed to help ensure future elections would not have issues such as fraud.
The state, the Republican National Committee and the National Republican Senatorial Committee took the case to the 11th U.S. Circuit Court of Appeals after Chief U.S. District Judge Mark Walker ruled that parts of the law were intended to discriminate against Black Floridians, a key voting bloc for Democrats.
Walker’s March 31 ruling chronicled what he described as the state’s “grotesque history of racial discrimination,” saying that “when all of the evidence is viewed together, a coherent picture emerges.”
The Tallahassee-based district judge blocked parts of the law. But the appeals court in May issued a stay of Walker’s ruling amid the continuing legal battle. The stay kept the law in effect for this year’s elections.
During arguments Thursday in Miami, appeals-court Chief Judge William Pryor at times contradicted Walker’s conclusions.
“I want to know what evidence supports the district court’s finding of discriminatory intent,” Pryor asked attorney Mohammad Jazil, who represents the state.
Pryor, part of a three-judge panel reviewing the case, pointed to previous court rulings about the issue.
“We said that, look, historical evidence that’s not really related to the passage of the particular voting law is not really that important. What really matters is the facts that lead up to the passage of the law in question,” Pryor said.
The law placed additional restrictions on ballot drop boxes, such as limiting their use to the hours of early voting and requiring they be staffed by election supervisor’s employees. Also, the law included placing restrictions on providing food and water to people waiting in line at polling places.
Voting-rights groups filed a series of challenges to the law, with the cases consolidated by Walker.
Plaintiffs argued that lawmakers imposed the drop-box changes after Black voters increased their use of the boxes for mail-in ballots.
The law also established new restrictions on third-party voter registration groups, a move the plaintiffs contended was targeted at Black Floridians who are more likely to sign up to vote through such organizations.
But Pryor appeared unconvinced that the evidence demonstrated the law was intentionally discriminatory, rattling off a series of findings in the case.
For example, Senate Ethics and Elections Chairman Dennis Baxley, an Ocala Republican who sponsored the legislation (SB 90), said during legislative debate that the changes might create a “learning curve” but would not disenfranchise any voters.
Pryor also pointed to data that showed just a fraction of Black voters were more likely than white voters to deposit ballots at drop boxes outside of regular business hours. He also referred to a survey that found Black voters were 1.3 percentage points more likely to report waiting times in long lines than white voters and a decade-old analysis that showed Black voters were 13 percentage points more likely to register to vote using third-party organizations.
“That’s it,” he said.
“Yes, your honor, that’s it, and even that data itself is flawed,” Jazil said.
Pryor later asked John Freedman, one of the plaintiffs’ lawyers, whether he “got it right” by concluding “the data is statistically insignificant when it comes to race.”
“The district court made a deal of the partisan differences and from that inferred something that the racial data didn’t show,” Pryor said.
“I don’t think that’s an accurate reflection of what the trial record was,” Freedman responded.
Thursday’s arguments also addressed part of the law banning people from giving water or food to voters waiting in line. Under the law, only supervisors of elections’ workers can distribute snacks or water.
David Fox, who represents the League of Women Voters of Florida and other plaintiffs, said the ban “directly implicates” the league’s activities.
“They want to go and encourage people to vote, but they don’t encourage people to vote in any particular way,” he said.
Judge Britt Grant, however, appeared skeptical.
“Isn’t it really about protecting the peace and quiet of voters, you know, keeping them from being disturbed by anyone?” she asked Fox, who said the state already has a prohibition against disturbing voters.
Cameron Norris, who represents the national Republican organizations, said the law clarifies restrictions in buffer zones outside voting places.
He also pointed to instances in which voters “get confused” by groups, especially when the groups’ workers all wear the same color clothing.
“They think they are the poll workers and that the League of Women Voters is running this precinct … It makes some people lose trust in the integrity of the election,” he told the panel, which also included Judge Jill Pryor.
Walker in March also made the rare move of putting the state under a process known as “preclearance,” meaning a court would have to approve any changes to Florida’s election laws for the next 10 years.
Walker’s “extensive, intense analysis” supported the preclearance remedy, said Michael Fletcher, who represents the Florida State Conference of the NAACP.
“Here, the Legislature actively sought out data about voting patterns and then targeted vote-by-mail procedures after Black voters more than doubled the rate at which they cast vote-by-mail ballots,” Fletcher said. “Given the persistent nature of racially polarized voting in Florida, Black voters will continue to be an attractive target.”
But Grant noted that Black voter turnout increased dramatically in 2020.
“Doesn’t that make it hard as a factual matter to say that there’s been a long history of the sort that would merit preclearance?” she asked.
Fletcher said the Legislature’s history of changing election processes after Black voters come to rely on them makes preclearance necessary “to stop other impermissible laws that may come to pass in the future to target Black voters.”
“You need flagrant, pervasive evidence of discrimination to justify this kind of extraordinary remedy but … that test, too, is not met,” he said.
Jazil argued that Walker’s justification for preclearance was grounded in part on Republicans’ control of the Legislature and the governor’s office.
“So this evidence-free notion that somehow because the state has Republicans, we’re going to discriminate against our Black citizens, is an insult,” he said. “This is the type of conclusion that cannot possibly justify intrusion into the sovereign rights of the state for the next 10 years.”