Welcome to The Ballot Bulletin, where we track developments in election policy at the federal, state, and local levels. In this month’s issue:
- U.S. district court strikes down Florida voting rules, imposes preclearance requirement for certain voting rule changes
- Redistricting round-up: The latest redistricting news from Louisiana, Maryland, and New York
- Legislation update: Recently enacted legislation
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U.S. district court strikes down Florida voting rules, imposes preclearance requirement for certain voting rule changes
On March 31, Judge Mark E .Walker, of the U.S. District Court for the Northern District of Florida, struck down three recent changes to Florida’s election laws:
- One regulating the availability and supervision of ballot drop boxes,
- One imposing delivery requirements on third-party voter registration groups, and
- One barring certain activities at or near polling places and drop boxes.
Walker also ordered Florida to submit any future modifications to these policies for federal preclearance for a period of 10 years.
On May 6, 2021, Gov Ron DeSantis (R) signed SB90, making a series of modifications to Florida’s election laws:
- Requiring that voters requesting mail-in ballots (in person, in writing, or by telephone) provide either their Florida identification card numbers or the last four digits of their Social Security numbers.
- Reducing the duration of a mail-in ballot request form from two election cycles to one.
- Drop boxes: Requiring that a secure drop box at a location other than the office of the county supervisor be open only during early voting hours, under the in-person monitoring of an employee of the supervisor’s office.
- Registration delivery: Requiring third-party voter registration organizations (3PVROs) to deliver applications to the Division of Elections or the Supervisor of Elections in the counties in which the applicants reside within 14 days of completing the applications (previously, 3PVROs could return completed applications to any Supervisor of Elections).
- Solicitation: Barring anyone from “engaging in any activity with the intent to influence or effect of influencing a voter,” either inside a polling place or within 150 feet of a drop box or the entrance of a polling place (according to Walker, this prohibition can be construed to apply to “line warming” activities, such as giving out water, snacks, umbrellas, etc.).
The Florida House of Representatives and the Florida Senate approved the final version of SB90 by votes of 77-40 and 23-17, respectively, on April 29, 2021. In the House, the vote split along party lines—all Republicans present voted in favor, and all Democrats present voted against. In the Senate, the vote also split largely along partisan lines, with one Republican (Sen. Jeff Brandes) joining the chamber’s 16 Democrats in opposing the bill. SB90 took effect immediately.
Several groups, including the League of Women Voters of Florida and the Florida State Conference of Branches and Youth Units of the NAACP, filed four separate lawsuits, alleging that these provisions were racially discriminatory, in violation of federal law. The suits were consolidated at trial.
How the court ruled
Walker, a Barack Obama (D) appointee, noted that claims of racial discrimination must be judged against the test the U.S. Supreme Court established in Arlington Heights v. Metropolitan Housing Development Corp. The test incorporates the following factors:
- The historical context.
- “[T]he specific sequence of events leading up to” the challenged law’s passage, including “procedural and substantive departure” and “contemporary statements and actions of key legislators.”
- The impact of the challenged law, including the”foreseeability of the disparate impact, knowledge of that impact, and the availability of less discriminatory alternatives.”
Walker concluded that Florida’s historical racial, political, and electoral contexts, as well as the specific sequence of events leading up to SB90’s passage, supported the plaintiff’s claims.
Walker then addressed the impact of SB90, dealing with each of the challenged provisions in turn:
- Vote-by-mail: Walker found that the racial impact of both the request and identification provisions was “unclear.”
- Drop boxes: Walker found that SB90’s drop-box provision “increases the time, transportation, and information costs of voting by drop box.” Walker concluded that these costs would “fall more heavily on Black voters.”
- Registration delivery: Walker held that, because 3PVROs “overwhelmingly serve minority communities,” the registration delivery provision “disproportionately harms Black and Latino voters.”
- Solicitation: Walker concluded that SB90’s solicitation provision “will have a disparate impact on minority voters because minority voters are disproportionately likely to wait in line to vote, and because the provision discourages third parties from helping those waiting to vote.”
Walker turned next to the question of whether these impacts were foreseeable and within the actual knowledge of legislators. Walker concluded, “The evidence before this Court not only suggests that the Legislature had such knowledge, but also that it specifically sought it out.” With respect to the availability of less discriminatory alternatives, Walker found that “less discriminatory alternatives to each challenged provision not only were available but were presented to and rejected by the Legislature.”
Having considered impacts, Walker framed the question of intent as follows:
The main question … is whether the Legislature enacted SB90 purely to secure an electoral advantage for the Republican party without regard to whether it harmed minority voters, or whether SB90 was enacted, at least in part, to target minority voters in order to secure an electoral advantage for the Republican Party.
Walker concluded that the plaintiffs failed to show that the Legislature acted with discriminatory intent in adopting the vote-by-mail request and identification provisions. However, Walker found that the remaining challenged provisions “specifically target Black voters,” in violation of Section 2 of the Voting Rights Act and the Fourteenth and Fifteenth Amendments. Walker permanently enjoined (i.e., barred) enforcement of these provisions.
Finally, Walker turned to the question of relief under Section 3(c) of the Voting Rights Act. Under Section 3(c), a court, upon finding that a political subdivision (e.g., a state or a municipality) has committed intentional racial discrimination in voting, can mandate that the subdivision preclear changes to voting regulations with either the court or the U.S. Attorney General “for such a period as [the court] may deem appropriate.”
Walker concluded that relief under Section 3(c) was warranted in this case. Accordingly, Walker barred Florida officials from enacting any law or regulation governing 3PVROs, drop boxes, and line-warming activities without first clearing such changes with the court or the U.S. Attorney General for a period of 10 years.
Cecile Scoon, president of the League of Women Voters of Florida said, “Senate Bill 90 was clearly an anti-voter measure that raised barriers to voting for marginalized groups with specific impacts on elderly voters, voters with disabilities, students and communities of color. The League is gratified that once again the constitutional rights of all of Florida’s voters have superseded partisan politics and that the targeted attack on Black voters will be stopped.”
In an interview, DeSantis said Walker’s ruling was “the judicial equivalent of pounding the table” and said, “I think that that’s going to be reversed on appeal. The only question is how quickly it gets reversed on appeal, but it’s not going to be able to withstand appellate scrutiny.”
In a statement, Florida House Speaker Chris Sprowls (R) called Walker’s ruling “an egregious abuse of his power,” adding: “The illogical leaps and unsupported inferences in Judge Walker’s opinion amount to a 288-page accusation of discriminatory intent based on limited analysis of data he thinks the Legislature might have had, the uncritical and complete acceptance of the comments of Democratic lawmakers, and a total disregard for other viewpooints.”
Legal commentators discussed Walker’s ruling within the context of the U.S. Supreme Court’s 2013 ruling in Shelby County v. Holder, in which the court held that preclearance mechanism contained in Section 4(b) of the Voting Rights Act was unconstitutional. Joe Patrice, writing for Above the Law, said, “While [Shelby] didn’t necessarily bar the door on a court reinstating preclearance requirements, no one thought to test the scope of the Court’s animosity toward this provision until now.” Rick Hasen, writing for Election Law Blog, said, “This is a huge deal, and the district court’s analysis is probably right, but there is good reason to believe that this case could be reversed on appeal by the much more conservative 11th Circuit or the Supreme Court.”
Redistricting round-up: The latest redistricting news from Louisiana, Maryland, and New York
In today’s round-up, we take a look at recent developments in Louisiana, Maryland, and New York.
On March 30, Louisiana enacted new congressional district boundaries, overriding Gov. John Bel Edwards’ (D) veto. The state Senate voted to override 27-11, along partisan lines. The state House of Representatives overrode the veto 72-32, with 68 Republicans, three independents, and one Democrat voting in favor and 32 Democrats voting against.
After the legislature’s override vote, House Speaker Clay Schexnayder (R) said the following in a statement: “Today, the overwhelming will of the Legislature was heard. House Bill 1 fulfills our constitutionally mandated duty to redistrict Congress. It also shows true legislative independence and a clear separation of power from the executive branch.” In remarks made after the override vote, Edwards said, “I can’t imagine there is a more compelling case for the courts to look at and to overturn than in Louisiana. It’s not even close. I happen to believe it’s a very clear case of violating the Voting Rights Act.”
Legislatures in four states—Kansas, Kentucky, Louisiana, and Maryland—have overridden gubernatorial vetoes of redistricting legislation. All four states have divided governments, in which one party holds the governor’s office and the other controls both chambers of the state legislature.
On April 4, Gov. Larry Hogan (R) signed into law legislation establishing new congressional district boundaries. Hogan signed the new map after state Attorney General Brian Frosh dropped his appeal of Circuit Court Judge Lynne Battaglia’s ruling overturning the state’s previous congressional redistricting plan.
On March 29, the state Senate approved the revised congressional district plan 30-13, with all Democrats voting in favor and all Republicans voting against. The House of Delegates approved the revised map on March 30 by a vote of 94-41, with all Democrats voting in favor and 40 Republicans and one Democrat voting against.
After Hogan signed the maps, Bloomberg Government’s Greg Giroux wrote, “The new map will continue to favor Democrats in seven of eight districts while restoring a strongly Republican district for Rep. Andy Harris (R). … The new map replaces a more aggressive Democratic proposal that the legislature enacted in December over Hogan’s veto. That map created seven safe Democratic districts and converted Harris’ eastern 1st District into a swing district, raising the possibility Democrats could win all eight districts. Democrats won seven of eight districts in the past decade of House elections.”
On April 4, New York Supreme Court Appellate Division Justice Stephen Lindley blocked a Steuben County judge’s ruling that overturned the state’s congressional and legislative district boundaries. Gov. Kathy Hochul (D) had signed those maps into law on Feb. 3. Lindley’s ruling maintains New York’s maps while the case moves forward. Lindley scheduled a hearing on the state’s appeal of the lower court ruling for April 7.
Steuben County Judge Patrick McAllister struck down New York’s enacted boundaries on March 31 and directed the legislature to draft new maps by April 11. In his ruling, McAllister said, “Part of the problem is these maps were void ab initio for failure to follow the constitutional process of having bipartisan maps presented by the [Independent Redistricting Commission]. The second problem was the Congressional [plan] that was presented was determined to be gerrymandered.”
In 2014, voters approved the New York Redistricting Commission Amendment, which created a redistricting commission to draw legislative and congressional districts. The commission is required to hold 12 public hearings during the process of redistricting, and the legislature must reject two separate sets of redistricting plans before it can amend the commission’s proposals.
Status of congressional redistricting
Congressional redistricting has been completed for 365 of the 435 seats (83.9%) in the U.S. House of Representatives.
- 39 states have adopted congressional district maps.
- Four states have not yet adopted congressional redistricting plans.
- New York’s maps were overturned by court action.
- Six states were apportioned one U.S. House district, so no congressional redistricting is required.
Status of state legislative redistricting
Legislative redistricting has been completed for 1,709 of 1,972 state Senate seats (86.7%) and 4,504 of 5,411 state House seats (83.2%).
- 42 states have adopted legislative district maps for both chambers.
- One state has adopted a map for one legislative chamber.
- Courts in two states have overturned previously enacted maps.
- The U.S. Supreme Court has blocked previously enacted maps in one state.
- Four states have not yet adopted legislative redistricting plans.
Legislation update: Recently enacted legislation
Arizona HB2492 requires that voters submitting registration forms not produced by the U.S. Election Assistance Commission submit proof of citizenship along with their registration forms. In the case of registration forms produced by the U.S. Election Assistance Commission, this bill requires election officials to “use all available resources to verify the citizenship status” of applicants. Should officials be unable to verify a voter’s citizenship status, that voter will be barred from voting in a presidential election or by mail in any election, pending submission of proof of citizenship. Should officials determine that a voter is not a citizen, officials will be required to forward the registration application to the county attorney and the attorney general for investigation. Officials who fail to comply with these requirements are guilty of a Class 6 felony.
- Legislative history and status: Introduced on Jan. 24, HB2492 cleared the Arizona House of Representatives by a vote of 31-25, with all Republicans voting in favor and all Democrats against. The Arizona Senate approved the bill 16-12, also along party lines. Gov. Doug Ducey (R) signed the bill into law on March 30.
- Political context: Arizona is a Republican trifecta, meaning that Republicans control the governorship and majorities in both chambers of the state legislature.
Indiana HB1116 requires that a voter submitting an electronic application for an absentee/mail-in ballot provide either an Indiana driver’s license number or the last four digits of the voter’s Social Security number. It also requires counties to provide a voter-verifiable paper audit trail for electronic voting systems by July 1, 2024, instead of Dec. 31, 2029. The bill authorizes the secretary of state to determine how many elections are subject to post-election audits (which, under earlier law, were called “risk-limiting audits”).
- Legislative history and status: The state House approved the bill’s original version by a vote of 66-28 on Jan. 31 (the vote split along party lines). The state Senate approved an amended version of the bill 35-10 on March 1 (35 Republicans voted in favor, nine Democrats and one Republican voted against). The House ultimately agreed to the Senate amendments by unanimous vote. Gov. Eric Holcomb (R) signed the bill into law on March 14.
- Political context: Indiana is a Republican trifecta, meaning that Republicans control the governorship and majorities in both chambers of the state legislature.
Utah HB0067 requires county clerks to review their voter registries no later than 90 days before each primary and general election and remove the names of ineligible electors. It requires the lieutenant governor to cross-check the official voter registry to remove the names of deceased voters in accordance with the procedures outlined in Utah Code § 26-2-13. The bill also requires that the outside of mail-in ballot envelopes include instructions for returning mail-in ballots (in the event that the individual to which a ballot is sent no longer lives at that address). This bill takes partial effect on May 4, 2022, and full effect on Jan. 1, 2023.
- Legislative history and status: Introduced on Jan. 18, 2022, The House unanimously approved HB0067 on Feb. 10. The Senate unanimously approved the bill on Feb. 24.
- Political context: Utah is a Republican trifecta, meaning that Republicans control the governorship and majorities in both chambers of the state legislature.