Florida’s Absentee Ballot Crackdown Faces First Legal Test (2)

A federal court on Monday began examining whether elderly, disabled, and other voters are improperly burdened by a new voting law in Florida, a crucial battleground state where casting ballots by mail has broad support.

The law limiting access to absentee ballot drop boxes, as well as restrictions on approaching voters lined up to cast their ballots in person, was enacted in response to unsubstantiated claims about widespread fraud in the 2020 general election.

Restricting the hours that ballot drop boxes are available and requiring them to be monitored in person instead of by video creates a “gatekeeper” that will intimidate and deter voters, said Cecile Scoon, president of the League of Women Voters of Florida and an individual plaintiff in the case.

“It’s going to stop people from even using the drop box,” she testified Monday before Chief Judge Mark Walker.

Some League of Women Voters members now decline to volunteer for voter registration events because they believe a warning they’re required to read stating that third-party organizations might not return voter registration forms on time, is inaccurate and embarrassing, Scoon said.

That warning caused one man Scoon had been registering to vote to change his mind, she said under cross-examination. He had been eager to register to vote, but after getting the warning from Scoon, “his expression to me was that he wasn’t happy, and he did an about-face,” she said.

Also at issue in the lawsuit: whether the law’s expanded definition of “solicitation” within 150 feet of a polling place is vague and will prevent the distribution of food or water to voters waiting to cast their ballots in person.

The statute was part of a trend that swept Republican-led statehouses last year and continues in 2022. Georgia’s version, now facing its own legal challenges, prompted outrage from President Joe Biden (D) for giving its General Assembly more authority over local election boards and for outlawing giving food or water to voters waiting in line, among other restrictions.

Proposals for “election police” to investigate alleged voting fraud have been floated in Georgia and Florida this year. In Arizona, Republican lawmakers have advanced bills that would ban unmonitored ballot drop boxes, make recounts easier, and ban all-mail local elections.

(Follow what states are doing to change voting laws and reconfigure political boundaries. SUBSCRIBE to Ballots & Boundaries.)

Lawmakers may not stop pushing voter restrictions unless an appeals court forces them to reconsider, said Michael Morley, an election law expert at Florida State University’s College of Law.

In Florida, that means they’re already looking past the trial in U.S. District Court for the Northern District of Florida to the potentially more friendly U.S. Court of Appeals for the Eleventh Circuit.

“Particularly in recent years, the Eleventh Circuit has shown a willingness to be more deferential to the Legislature, to its policy decisions, to its security-type concerns,” Morley said in a phone interview.

Lack of Evidence

Democrats who hold state attorney general offices in 17 states support the challenge to Florida’s law, saying their own election experiences undermine Florida’s claims of voter fraud and low voter confidence.

“No one disputes that there is a state interest in combating voter fraud. But the means chosen to advance that interest must be reasonably calibrated to the scope of the problem,” they said in an amicus brief filed Dec. 3, adding that the scale of voter fraud is “vanishingly small.”

Local elections supervisors broadly opposed the legislation (S.B. 90) before Gov. Ron DeSantis (R) signed it into law May 6. Several are expected to testify during trial that added restrictions for drop boxes and mail-in ballot requests are unnecessary and likely to cause voter confusion, plaintiffs said in opening statements filed Jan. 14.

Florida Sued After Governor Signs Ballot Access Restrictions

The civil rights and voting rights groups asking the U.S. District Court for the Northern District of Florida to overturn the law include the League of Women Voters of Florida, Black Voters Matter Fund, Florida Alliance of Retired Americans, Florida NAACP, Common Cause, and Disability Rights Florida.

Voting Rights Claims

They’re challenging six provisions in the law pertaining to drop boxes, voting-by-mail requests, and voter registration that they claim adversely affect voters with disabilities and voters of color.

“We’ll make the case the way that lawyers in voting rights cases always do—that a law that is passed with this kind of discriminatory intent and discriminatory effect cannot stand under the Voting Rights Act or under the Constitution,” Brenda Wright, senior adviser for legal strategies for the left-leaning think tank Demos, told reporters last week.

“The state will try to argue this is just another type of anti-electioneering law,” Morley said in a phone interview.

Photographer: Marco Bello/Bloomberg

Voters stand in line to cast ballots at an early voting polling location in Miami on Oct. 19, 2020.

Unless the plaintiffs can show that nonpartisan volunteers are being threatened for offering water to voters, “I think that’s the sort of provision where the court’s just going to say the challenge isn’t ripe yet,” he said.

The changes made under the new law, such as limiting availability of ballot drop boxes and requiring more frequent renewals for absentee ballot requests, don’t add up to a constitutional burden, attorneys for Florida Secretary of State Laurel Lee said in a Dec. 10 filing.

Florida “has an undeniable interest in maintaining election integrity and maximizing voter confidence in elections. That some supervisors criticized SB90 does not change this fact,” the state said.

Recent Arrests

Over 4.8 million Floridians used vote-by-mail ballots in the November 2020 election, according to data from Florida’s Department of State.

While debating the legislation in 2021, Republican lawmakers discussed the potential for voter fraud without citing specific cases.

The National Republican Senatorial Committee and the Republican National Committee have asked the court to consider a few isolated incidents in the state’s defense: Residents of The Villages, in central Florida, who’ve been arrested recently for casting ballots in two states in the 2020 general election.

The consolidated case is League of Women Voters v. Lee, N.D. Fla., No. 4:21-cv-00186

To contact the reporter on this story: Jennifer Kay in Miami at jkay@bloomberglaw.com

To contact the editors responsible for this story: Katherine Rizzo at krizzo@bgov.com; Tina May at tmay@bloomberglaw.com