The full U.S. Court of Appeals for the Eleventh Circuit has refused to take a second look at a voter suppression law passed in Florida three years ago, over a dissent complaining that the court majority was breaking promises made in the Fourteenth and Fifteenth amendments.
The effect is to let stand a split ruling by a three-judge panel of the same court in spring last year to allow enforcement of the law, SB 90, that will interfere with the right to vote using drop boxes and provide food and water to people waiting in line to vote, and that erects barriers in front of organizations seeking to register voters.
Gov. Ron DeSantis pressed the Republican-dominated Legislature to enact SB 90 following the 2020 elections to combat alleged voting fraud, even though negligible evidence of fraud emerged during what the governor himself praised as a well-run election.
Plaintiffs including the League of Women Voters of Florida filed suit, protesting that the new law would severely disadvantage minority voters. U.S. District Judge Mark Walker agreed following a two-week trial, citing “a decades-long pattern of voting legislation discriminating against Black people.”
Walker went further, ordering the state to submit any election-law revisions to the U.S. Department of Justice for preclearance under Section 3 of the VRA for 10 years.
Gov. Ron DeSantis’ office welcomed the outcome.
“Today, the full United States Court of Appeals for the Eleventh Circuit rightly voted against rehearing the reversal of an activist judge and affirmed, yet again, Florida’s common-sense elections provisions signed into law by Governor DeSantis in 2021. We will continue to fight to make Florida’s elections secure, efficient, and transparent,” press secretary Jeremy Redfern said in a written statement.
“The order from the Eleventh Circuit shows again that Judge Mark Walker’s ruling was clearly wrong. The printing costs of Judge Walker’s rulings far exceed the value of the rulings themselves,” Redfern added.
Friendly reading
In Thursday’s outcome, Chief Judge William Pryor wrote an opinion explaining his reasons for voting against a rehearing in which he viewed the facts as favorably as possible for the Legislature — noting, for example, that solid majorities in the House and Senate voted in favor of SB 90 without also observing that they were party-line votes.
Similarly, Pryor described language barring solicitation of voters waiting in line as benign, not mentioning that it bars provision of food and water. As for new restrictions on third-party voter registration organizations, Pryor didn’t mention evidence that the provision threatens large fines that could drive these groups out of business for reasonable mistakes.
“This case demonstrates that nearly 60 years later [following passage of the 1965 Voting Rights Act], despite the promise of the Reconstruction Amendments and the successes of the Voting Rights Act, the struggle to purge our democracy of discrimination on the basis of race continues,” Judge Charles Wilson wrote in an opinion joined by Judge Jill Pryor. Judge Adalberto Jordan joined part of the dissent involving deference to trial judges’ findings of fact.
Wilson wrote in his dissent that the court was ignoring U.S. Supreme Court precedents governing whether a law has been passed with discriminatory intent. He noted Florida’s “history of discriminatory law working hand-in-hand with mob violence to suppress Black Floridians’ right to vote.”
Only recently, the high court reaffirmed the validity of considering a state’s history of discrimination in ordering Alabama to devise a congressional redistricting plan adding a second Black-dominated seat, he said.
But Pryor described Wilson’s dissent as “histrionic,” and swept aside Judge Walker’s description of discrimination against Black voters extending to the post-Reconstruction period and particularly “that, in the past 20 years, Florida has repeatedly sought to make voting tougher for Black voters because of their propensity to favor Democratic candidates.”
Pryor insisted: “The record reveals a stark lack of evidence of discriminatory intent of the present Florida Legislature.” (Emphasis in the original.)
Walker declared that the Legislature’s stated concern over voting fraud was pretextual but Pryor took the lawmakers at the word.
History’s relevance
“It is easy to see how a history of discrimination, when evinced in present-day data, is relevant not just to the historical background factor, but also to the foreseeability of a disparate impact and the government’s knowledge of that impact,” Wilson wrote.
“The Fifteenth Amendment attacks not only the simple-minded modes of discrimination, but also the more subtle sophisticated ones as well.
“When a present-day state government enacts a law that is neutral on its face, it is very much relevant whether or not the ‘neutral’ criteria it purports to utilize are in fact built upon a history of past racial discrimination. Simply put, our Constitution does not require us to overlook the truth that this nation’s history of discrimination is still reflected in the present.”
Wilson complained the court was abusing its authority in rejecting Judge Walker’s factual findings of discriminatory intent — an outcome he said sets a baleful precedent for the three states within the circuit court’s jurisdiction, which includes Alabama, Georgia, and Florida.
That result “should raise eyebrows,” he wrote, adding: “Unfortunately, it is not all that surprising. In recent years, this court has picked up a troubling habit of too easily overriding district courts’ factual findings.
This article originally appeared in florida phoenix