n Friday, May 6, a federal appeals court granted Florida
’s request to reinstate portions of the state’s election laws, struck down by a district court judge who ruled the measures unconstitutional and discriminatory.
On May 1, 2021, the Republican-controlled state Senate approved SB 90 (pdf), which overhauled Florida election law ahead of the 2022 midterm elections and 2024 presidential election. Gov. Ron DeSantis signed the bill into law May 6, 2021, with immediate effect, strengthening voting rules in the state and establishing the nation’s first Office of Election Crimes and Security at the Department of State.
The law was immediately challenged by multiple liberal advocacy groups.
The law requires vote-by-mail ballot signatures to match the most recent signature on file to be counted. The measure also dictates that political parties and candidates cannot be shut out from observing the signature matching process.
“Upon request,” the law requires that “a physically present candidate, a political party official, a political committee official, or an authorized designee thereof, must be allowed to observe the duplication of ballots. The observer must be able to observe the duplication of ballots in such a way that the observer is able to see the markings on each ballot and the duplication taking place.”
The law further dictates that secure drop boxes shall be placed at the main office of the supervisor, at each branch office of the supervisor, and at each early voting site.
“A supervisor shall designate each drop box site at least 30 days before an election. After a drop box location has been designated, it may not be moved or changed. On each day of early voting, all drop boxes must be emptied at the end of early voting hours and all ballots retrieved from the drop boxes must be returned to the supervisor’s office. Employees of the supervisor must comply with procedures for the chain of custody of ballots as required by s. 101.015(4).”
As the three-member panel of judges for the Eleventh Circuit describes in its order (pdf): “The district court’s determination regarding the legislature’s intentional discrimination suffers from at least two flaws, either of which justifies a stay.”
Judges Kevin Newsom, Barbara Lagoa, and Andrew Brasher found the district court’s historical analysis “to be problematic.”
“In its assessment of SB90’s historical background, the district court led with the observation that ‘Florida has a grotesque history of racial discrimination.’ It began its survey of that history beginning immediately after the Civil War and marched through past acts of ‘terrorism’ and ‘racial violence’ that occurred during the early and mid-1900s. And it concluded by seeming to chide the Supreme Court for suggesting that ‘[o]ur country has changed’ since the Voting Rights Act was enacted in 1965.”
The judges also ruled that “the district court failed to properly account for what might be called the presumption of legislative good faith.”
Chief Judge Mark Walker of the U.S. District Court for the Northern District of Florida, appointed by President Barack Obama in 2012, said the law is discriminatory and ruled the measure to be unconstitutional on March 31. Walker also issued a permanent injunction barring enforcement of the bulk of the new rules.
Walker had also ordered Florida to get pre-approval from a federal judge for its election law changes, an order the Columbia Law Review defines as a “seldom used path to federal preclearance of changes to state and local voting practices,” which allows courts to force jurisdictions to get pre-approval on election law changes.
“We are pleased to see that the Eleventh Circuit Court of Appeals has stayed the district court’s injunction of SB 90, our State’s 2021 election int…