Much has been made about the recent decision by U.S. District Court Judge Mark Walker from the Northern District of Florida that overturned most of Florida Senate Bill 90 and its changes to the Florida Election Code. Still, the decision also contains a dangerous overreach of federal authority into the authority of the Florida Legislature.
Gov. Ron DeSantis and the Florida Legislature argued that SB90 was needed to support better election integrity in Florida. A partisan line clearly divides that argument, with Walker firmly siding with the challengers of the law stating that they were “mostly right” that the 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.” The governor and the Florida Legislature have maintained that SB90 was not racially motivated.
There is no denial of the gravity of Walker’s decision on those parts of the law. Of even greater concern should be Walker’s ruling on what he referred to as “an afterthought” by the parties in the lawsuit. Using a “sparingly” applied section of the federal Voting Rights Act, Walker gave Florida’s elected officials what he called a dose of “strong medicine.” Walker required that any new voting law proposed by the Florida Legislature be approved by a federal judge before being enacted and implemented. Walker acknowledged that this ” preclearance ” requirement was “a drastic departure from basic principles of federalism.” He’s right. It is drastic. The ruling means that before Florida can enact laws, in this case, election laws, that fall completely within its primary constitutional powers, the federal government’s judicial branch requires that Florida seek permission from that branch as to the scope and effect of the law. So, although no citizen may complain about the proposed law and no dispute be brought before any court for resolution, Judge Walker’s decision essentially puts a presumption upon the state that the proposed law is, in fact, unconstitutional and racially motivated. The state then has the burden to prove that it is not.
Although portions of the “preclearance” remedy in the Voting Rights Act were determined to be unconstitutional by the U.S. Supreme Court, this section 3(c) preclearance was left intact; but it has been rarely used. To understand just how rare it is for a court to use this remedy against a state, as of 2017, the remedy had been invoked less than twenty times in over forty-eight years. Nevertheless, Walker recounted his findings within Florida’s political history to support his determination that SB90 violated the Fourteenth and Fifteenth Amendments to the U.S. Constitution, warrantying this drastic remedy.
After reviewing a series of cases where previous courts found a racial effect in Florida voting laws, but a constitutional intent in their passage, Walker broke from these legal precedents. Ignoring Florida’s other historical legislative and judicial actions to protect voting rights, Walker focused solely on select legislative actions taken since 2000. Overlooking the evidence and testimony that SB90 was supported by constitutional political or partisan motives (the words partisan, partisanship, and political occur 75 times in the decision), Walker nonetheless determined that “over the past 20 years, Florida has repeatedly targeted Black voters because of their affiliation with the Democratic party . . ..” Indeed, the court relied upon a statement from one of the challengers’ witnesses that “race and partisanship are inextricably intertwined.” But such a leap of logic ignores the history of race and partisanship that has changed over the years and arguably is changing again as more African Americans are moving toward voting for Republicans since before the 1950s. As a recent Gallup survey showed, overall party affiliations in 2021 moved from a 9 percent point Democrat advantage to a 5 percent Republican advantage. The flaws in the court’s statistical analysis also failed to account for the largest group of voters – independents. Walker also ignored the reality that party affiliation does not always mirror the actual vote, as demonstrated by Donald Trump’s increase in African American and Hispanic voters in his win in the 2016 presidential election. In fact, there is no discussion if SB90 harmed the rights of Black Republican voters. If racial targeting were the actual motive in the legislation, then one would expect the racial effects to cross party lines – they do not.
The case is currently on appeal to the U.S Eleventh Circuit Court of Appeals in Atlanta. Still, if any of Walker’s rulings on unconstitutionality are upheld, the result is that “preclearance” may be the law of the land for Florida voting law reforms for the next decade.
Lindsey Brock is based in McLeod Brock’s Jacksonville office. His practice focuses on maritime, logistics, and commercial litigation, as well as public policy matters. He served two terms as the chair of the Admiralty Law Committee of the Florida Bar and authored the Cargo Law section of the Fla. Bar’s Admiralty Law Desk Book. In 2019 Lindsey was appointed by Jacksonville City Council President Aaron Bowman to chair the Charter Revision Commission, which meets every 10 years to make recommendations as to the structure and governance of the city’s government.
