Yesterday, the United States Court of Appeals for the Eleventh Circuit upheld critical provisions in Florida election law reforms, including provisions that Democratic politicians and pundits spent years misrepresenting as “a return to Jim Crow.” Many of these attacks were directed against Georgia, which was the subject of boycotts. However, other states passed similar provisions. In a majority opinion written by Chief Judge William Pryor (and joined by Judge Elizabeth Grant), the 11th Circuit found that the district court misconstrued the controlling precedent and made factual errors in its injunction of a few of the provisions enacted by Florida.
The voting reforms were signed into law in 2021 by Republican Governor Ron DeSantis.
The decision deals with many of the provisions long denounced in the media as voter suppression from regulations on ballot drop boxes, the solicitation of voters at the polls, and the delivery of voter-registration forms by third-party voter-registration organizations.
These provisions have been called a virtual return to the confederacy by President Biden.
Indeed, it was not enough for Joe Biden to repeat his past claims that these provisions were “Jim Crow on steroids” and “sick.” He weirdly called them “Jim Eagle.” Former Clinton campaign general counsel Marc Elias also denounced the laws and was hired to challenge them, including the action in this litigation.
One of the key provisions being challenged in both Florida and Georgia (and repeatedly referenced by Biden) is the ban on campaigns and groups handing out food and water to people waiting in line at election sites. These so called “line warming” provisions are designed to prevent campaigns from getting around bans on politicking near voting sites by handing out things of value to voters just before they cast their votes.
The provisions in Georgia (and states like Florida) have been grossly misrepresented by President Biden and others.
Even The Washington Post awarded Biden four “Pinocchios” for his characterization of the law. For example, Biden declared, “it’s sick. It’s sick … deciding that you’re going to end voting at 5 o’clock when working people are just getting off work.” Biden repeated this claim despite it being untrue. The election law actually does the opposite. It guaranteed that, at a minimum, polls would remain open for a full workday while allowing extended hours commonly used on Election Day.
Biden also claimed that the Georgia law prevented water from being given to voters waiting in line at polling places: “Imagine passing a law saying you cannot provide water or food for someone standing in line to vote, can’t do that? C’mon!” That is also untrue.
The law does not prevent providing water to people standing in line. The law allows “self-service water from an unattended receptacle” for voters waiting in line. Instead, it blocks campaigns from directly supplying such drinks and allows anyone to give water to voters outside of a limited area around the polling place. In reality, the Georgia and Florida laws have considerable overlap with provisions in other states.
Courts have swatted back these challenges and refused injunctions.
In one of the most significant elements of the decision, the 11th Circuit reversed U.S. District Judge Mark Walker’s order that the state must secure court approval for a decade before it enacts any changes to three areas of election law. The court found that Walker committed errors on the applicable standards as well as “clearly erroneous” findings of fact. It noted that Walker ignored that “[w]e have rejected the argument that ‘a racist past is evidence of current intent.’”
Moreover, in his district court order, Judge Walker wrote that “for white and Black voters in Florida, separating race from politics only works in science fiction.”
However, Chief Judge Pryor responded that “the Supreme Court has warned against conflating discrimination on the basis of party affiliation with discrimination on the basis of race.”
Judge Walker will now have to reconsider the case.
The court did affirmed Walker on vague language banning any activity with the “effect of influencing a voter” near a voting area. The law prohibited people from “engaging in any activity with the . . . effect of influencing a voter.” Chief Judge Pryor balked at the vagueness of that language:
“How is an individual seeking to comply with the law to anticipate whether his or her actions will have the subjective effect of influencing a voter? Knowing what it means to influence a voter does not bestow the ability to predict which actions will influence a voter. As a result, the district court correctly determined that this phrase in the solicitation provision ‘both fails to put Floridians of ordinary intelligence on notice of what acts it criminalizes and encourages arbitrary and discriminatory enforcement, making this provision vague to the point of unconstitutionality.’”
Nevertheless, that was a minor victory given the reversal of the major provisions. It specifically found that the ban on giving food and water in line, the drop box limitations and the third-party voter registration restrictions are all lawful under the 14th and 15th Amendments and the Voting Rights Act (VRA).
The majority lays out its reasoning in 78 pages of detailed refutation of the district court’s findings and standards. What is curious is that Judge Jill Pryor does not specifically address a single one of these arguments and just offers a conclusory one paragraph dissent:
“I would affirm the district court’s injunction prohibiting the enforcement of S.B. 90’s drop-box, solicitation, and registration-delivery provisions. In my view, the district court, in its thorough and well-reasoned order, committed no reversible error when it concluded that these provisions violated the Fourteenth and Fifteenth Amendments to the Constitution, as well as section 2 of the Voting Rights Act. Given these violations, the district court did not abuse its discretion when it ordered the State of Florida to submit to preclearance under section 3 of the Voting Rights Act. I respectfully dissent.”
That is equivalent to a judicial shrug. It is curious because the plaintiffs may seek an en banc appeal or a petition for writ of certiorari before the Supreme Court. It is useful to have a reasoned dissent that addresses these appellate issues. Instead, Judge Jill Pryor offers a mere 153-word dissent, if one counts “I respectfully dissent.”
While the plaintiffs may want to go for an en banc review, an appeal to the Supreme Court would come at a heightened risk. They could magnify this loss with a major new ruling from the highest court. Chief Judge Pryor’s reasoning is likely to resonate with a majority of the Supreme Court, particularly the rejection of the preclearance order. Most public interest advocates seek not to just make good law but avoid making bad law in the interests of their clients. Doubling down on a bad hand could prove costly for these groups.