March 31, 2022

Today, Judge Mark E. Walker of the Federal District Court in Tallahassee, Florida, struck down much of the new elections law passed by the Florida legislature after the 2020 election. This is the first time a federal court has sought to overrule the recent attempts of Republican-dominated state legislatures to rig the vote, and Walker made thorough work of it.

Four cases were consolidated into one: the League of Women Voters v. Florida Secretary of State Laurel M. Lee, National Republican Senatorial Committee, and Republican National Committee. In his decision, Walker used Florida as a case study to explain how suppressing the Black vote rigs the system in favor of Republicans. His 288-page decision is a frightening portrait of how Republicans are taking control of certain states against the will of voters.

“This case is about our sacred right to vote,” Walker wrote, “won at great cost in blood and treasure. Courts have long recognized that, because “the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized.”

While the defendants who wrote Florida’s new election law, SB 90, argued that the changes to voting rules were minor tweaks to avoid voter fraud, the plaintiffs said the new law “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.” Walker concluded that “for the most part, Plaintiffs are right,” and notes that “the right to vote, and the V[oting] R[ights] A[ct] particularly, are under siege.”

Walker notes that the issue at stake is not whether the legislators who wrote the new laws are racist, but rather whether race was a factor in the writing of SB 90. Recognizing that few people would today openly admit their racial motivations, he explains that the court needed to look at the circumstances around the passage of SB 90 to determine if race played a role in the law. “Think of it like viewing a pointillist painting, such as Georges Seurat’s A Sunday Afternoon on the Island of La Grande Jatte,” Walker wrote. “One dot of paint on the canvas is meaningless, but when thousands of dots are viewed together, they create something recognizable. So too here, one piece of evidence says little, but when all of the evidence is viewed together, a coherent picture emerges.”

Those dots of paint begin with Florida’s “grotesque history of racial discrimination.” After the Civil War, the Reconstruction legislature limited the vote to white men; when Congress insisted that Black men must be able to vote, Florida legislators changed the law to take their vote away little by little. 

First, they changed the constitution to let the governor appoint all statewide officeholders; he appointed only white men. Then they required a sort of early voter ID: a voter had to bring a registration certificate to the polls. Finally, in 1888, the lawmakers passed the “Eight Box Law,” requiring that votes for each state office had to be dropped correctly into eight different boxes in order to count, an impossibility for illiterate farmers. It also passed a poll tax. Although all these new laws were neutral on their face, they drastically cut down Black voting. According to election historian J. Morgan Kousser, between 1888 and 1892, Black voting dropped from 62% to 11%. 

For those still undaunted, violence sealed the deal. In 1960, Gadsden County had more than 12,000 Black residents old enough to vote, but only seven of them were registered. Not a single Black congress member was elected between 1877 and 1992. Latinos, too, have had trouble voting, largely because of language barriers.

Historic voter suppression is relevant today because differences in political power help to create differences in economic and social power. While 5.4% of White family households are below the poverty line, 15.8% of Black and 17.7% of Latino family households are. The median White household income ($65,149) is 46.7% higher than the Black median household income ($44,412) and about a quarter higher than the Latino median household income ($52,497). In terms of education, 6.9% of the White population has not finished high school, while 15.3% of the Black population and 20.4% of the Latino population have not.

About 4.8% of White households don’t have a car or a truck, while 7.3% of Latino households and 10.4% of Black households lack them, meaning they rely on public transportation at a higher rate than White Americans and so face longer commutes to work. Walker writes that “these disparities are the stark results of a political system that, for well over a century, has overrepresented White Floridians and underrepresented Black and Latino Floridians,” and he notes that 90% of Florida’s White voting age citizens are registered to vote, while only 83% of its Black and 77% of its Latino voting age population is.

Since 2004, White voters in Florida have been likely to vote for Republicans, but Black voters in Florida have favored Democratic candidates for president and governor at an average rate of about 89.7%. (In contrast, Latino voters tend to swing between parties.) Race and politics thus cannot be separated, and since Florida elections tend to be very close, decreasing the Black vote helps the Republican Party. Getting rid of even a few thousand votes can swing an election. It is “easy to see how Republican legislators who harbor no racial animus could be tempted to secure their own position by enacting laws targeting Black voters,” Walker wrote.

And since the days before the 2000 election, they have repeatedly done so. The infamous 2000 voter purge cut ten times as many Black voters as White voters from the rolls that year before victory in the presidential election came down to a few hundred votes in Florida for Republican candidate George W. Bush. Since then, the state has repeatedly purged its rolls, and legitimate Black voters have been disproportionately removed. 

Similarly, when Black Floridians began to use early voting, the legislature changed the laws to limit that practice. So, in 2012, Black voters stood in line for as long as 8 hours, and tens of thousands ultimately were unable to cast a vote. In 2018, voters in Florida overwhelmingly favored restoring voting rights to felons who had served their sentences; the legislature promptly passed a law requiring felons to pay all fees they owed to the state before they could vote, a law that, again, affected Black voters more than White ones.

The 2020 election went smoothly in Florida, but the legislature nonetheless pushed through SB 90 to “instill voter confidence.” A text exchange between a legislator and the chair of the Florida Republican Party called this justification into question: they discussed how the standard procedures for absentee ballots were “killing” the Republican Party because the Democrats had so many more absentee voters the Republicans “could not cut down [that] lead” unless the law changed. 

The new law makes it harder for voter-registration organizations to sign up voters. It limits the use of drop boxes and voting by mail, pushing people to vote in person, and then forbids giving food and water to the people who will inevitably be waiting in line to vote. 

“This Court finds that the Legislature enacted SB 90 to improve the Republican Party’s electoral prospects,” Walker wrote. He required Florida to get the approval of the federal government before trying to make any such changes for the next ten years.

Florida will challenge this decision, and it may well win before the conservative Court of Appeals for the 11th Circuit or the current Supreme Court. Republicans have defended their assaults on voting by citing the Constitution’s provision that “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof;” but Walker noted that there is another clause in the Constitution that follows that semicolon. It reads: “but the Congress may at any time by Law make or alter such Regulations….” 

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Notes:

https://www.nytimes.com/2022/03/31/us/politics/florida-voting-law.html

https://www.nbcnews.com/politics/elections/federal-judge-overrules-florida-restrictive-voting-law-rcna22432

https://s3.documentcloud.org/documents/21564733/ndfl-voting.pdf