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What on Earth is Going on with Florida? Explaining the Purcell Principle and Ongoing Litigation Over SB 90

Election Law Society · October 28, 2022 ·

By Emily Baker

There has been significant news coverage on court proceedings covering Florida state election law. Recent articles include titles such as  “Florida appeals court questions ruling on elections law” and “An appeals court questions a rulingagainst parts of Florida’s election law.” The main questions are, what happened and what do these reports mean?

Starting from the beginning: Florida’s Senate Bill 90 was signed by Governor Ron DeSantis, live on Fox News, on May 6th, 2021. It received immense criticism, because its effect would generally make it more difficult to vote by mail. The bill was immediately challenged by multiple sets of plaintiffs—the Harriet Tubman Freedom Fighters, the League of Women Voters, the Florida NAACP, and Florida Rising Together—each bringing slightly different claims. The lawsuits were consolidated into one case by the district court, challenging three colorable issues: 

  1. A provision regulating the use of drop boxes for collecting ballots criminalized dropping off more than two ballots besides those from immediate family members and required monitoring by election personnel. As a result, access to drop boxes was limited to posted hours of operation.
  2. The Registration-Delivery Provision requires third-party voter-registration organizations to deliver voter-registration applications to the county where an applicant resides within fourteen days, and the Registration-Disclaimer Provision specifies information that third-party voter-registration organizations must provide to would-be registrants. Third-party voter-registration organizations can be fined up to $50,000 per year for violating either of these provisions, a stark increase from the previous $1,000 limit per year.
  3. The Solicitation Provision prohibits the solicitation of voters within 150 feet of a drop box or polling place.

Plaintiffs argued that each of these provisions discriminated against voters on the basis of race, in violation of the Fourteenth and Fifteenth Amendments and Section 2 of the Voting Rights Act; specifically that the Registration-Disclaimer Provision compelled speech in violation of the First Amendment and that the Solicitation Provision was unconstitutionally vague or overbroad in Violation of the First and Fourteenth Amendments.

Focusing on the racial discrimination, the lower court held that SB 90 “runs roughshod over the right to vote, unnecessarily making voting harder for all eligible Floridians, unduly burdening disabled voters, and intentionally targeting minority voters—all to improve the electoral prospects of the party in power.” The court found that the challenged provisions were unconstitutional and unenforceable because they limited access to the ballot. For example, people frequently help elderly voters by dropping off their ballots for them and is a common practice in church groups. Additionally, the limited accessibility to ballot drop boxes can favor white-collar voters who have greater flexibility in their jobs. In consequence, the District Court placed the state of Florida on preclearance for ten years, which means that the state would have to seek federal approval to “preclear” any attempt to pass new laws specifically related to drop boxes, line-warming (a commonly employed practice of giving out food and water to voters waiting in line), and voter registration organization activities.

The 11th Circuit Court of Appeals, however, “stayed” the district court’s injunction in May of 2022 on the basis of the “Purcell principle,” which is the idea that courts should not change election rules on the eve of an election because doing so could confuse voters and create problems for officials administering the election. The 11th Circuit employed the principle here, because the lower court’s injunction implicated voter registration, which was currently underway, and required the state to retain poll workers when the next statewide election was nearly four months away. 

In addition, the 11th Circuit took issue with the district court’s analysis of the historical background and its conclusion that “Florida has a grotesque history of racial discrimination.” The district court supported the conclusion by the recounting of several acts of violence against Black voters in Florida, notably the massacre of more than thirty Black Floridians on Election Day after a Black voter went to the polls in 1920. The 11th Circuit’s holding was in part based on the principle that “old, outdated intentions of previous generations” should not “taint [a state’s] legislative action forevermore on certain topics” and that the district court ruling failed to take into account the presumption of legislative good faith. 

While critical, this was only a temporary stay pending appeal. These new headlines, while flashy, only address questions judges asked in the oral argument and not the merits or the 11th Circuit’s final decision. SB 90 will be in effect (at least) until the 2022 midterm elections are over, likely making it more difficult for many Floridians to vote by mail. 

Spoiler Alert: Sham Candidates Unduly Influence Florida Elections

Election Law Society · March 14, 2022 ·

Sham candidates are influencing outcomes in Florida elections. And it’s “not necessarily illegal.” Running sham candidates, or “ballot management,” is the practice of strategically running a no party affiliation (NPA) or third-party candidate not to win, but to siphon votes from a competitor. The 2020 race for Florida Senate District 37 illustrates the issue.

Incumbent Democratic state senator José Javier Rodríguez ran for reelection to his seat representing Florida’s Senate District 37, which he first won in 2016. His competitors were Republican Ileana Garcia and NPA candidate Alex Rodriguez— an auto parts dealer who conveniently shared the same last name as José Javier Rodríguez. Suspiciously, Alex Rodriquez did not appear to want to win the election, failing to campaign, speak publicly, or otherwise engage with voters. By itself, it’s possible Alex Rodriquez was someone who simply wanted to throw his hat into the ring, but perhaps lacked the will or resources for a full-throated campaign. Unfortunately, that was not the case.

[Read more…] about Spoiler Alert: Sham Candidates Unduly Influence Florida Elections

Florida Senate Bill 90: Usual or Unusual Beast of Burden?

Election Law Society · October 22, 2021 ·

On May 6, 2021, Governor Ron DeSantis of Florida signed Senate Bill 90 into law. While the Governor and his Republican colleagues in the Legislature heralded SB 90 for its election integrity and transparency measures, critics called foul, or rather “voter suppression.” SB 90 is Florida’s contribution to a flurry of state-led reforms sparked by the national discourse on the validity of the 2020 election. As a result of SB 90, the U.S. District Court for the Northern District of Florida now has a substantial election law docket. Petitioners assert a variety of claims (including ADA, Equal Protection, and Fifteenth Amendment claims), with claims regarding Section 2 of the Voting Rights Act featuring prominently.

[Read more…] about Florida Senate Bill 90: Usual or Unusual Beast of Burden?

Footing the Bill: The FRRC’s Fight for Florida Felons

Election Law Society · October 7, 2020 ·

By Nicholas Balbontin

“Past mistakes should not define a person’s future.”

These words, tweeted from the Florida Rights Restoration Coalition (FRRC) in 2019, have become a rallying cry for those Americans attempting to fight for felons’ right to vote in Florida. ” FRRC was founded bv returning citizerns and is  “dedicated to ending the disenfranchisement and discrimination against people with conviction.”

The Eleventh Circuit’s decision to uphold Fla. Stat. § 98.0751 has been widely covered across blogs, articles, and general media. The court upheld Fla. Stat. § 98.0751(2)(a)(5)(b), stating that even when a returning citizen has completed the imprisonment portion of his sentence, he has not fully completed his sentence until all fines and fees are paid. The decision not only sparked controversy but increased the urgency of voting rights restoration efforts as the upcoming presidential election approaches. In an incredibly lengthy, 6-4 split opinion, the majority cited the lack of a suspect class as the main reason behind its holding of no equal protection violation. Without a suspect class in question to elicit strict scrutiny, the court turned to rational basis review. Through this lens, the State was found to have had a rational interest in ensuring that its convicted felons completed the entirety of their sentence. This presents a barrier to restoration for those returning citizens who face financial hardship and are unable to pay off these fines and fees.

[Read more…] about Footing the Bill: The FRRC’s Fight for Florida Felons

Florida Online Voter Registration: Cybersecurity vs. Burdening Eligible Voters

Election Law Society · March 23, 2018 ·

By: Alannah Shubrick

In 2015, the Florida Legislature passed a bill permitting Floridians to register online to vote. Two years later, registertovoteflorida.gov  finally went live in October. Now, Florida is one among 35 states that allow voters the option to register to vote online. The new online voter-registration system is part of broad efforts across the state to modernize the Florida voter registration system and enable all eligible Floridians to join the electorate.

[Read more…] about Florida Online Voter Registration: Cybersecurity vs. Burdening Eligible Voters

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