Appeals Court Upholds Key Provisions of 2021 Florida Election Integrity Law, Reversing Same Judge Handling Disney Case

Appeals Court Upholds Key Provisions of 2021 Florida Election Integrity Law, Reversing Same Judge Handling Disney Case

Last we checked in on the 2021 Florida Election Integrity Law championed by Gov. Ron DeSantis, the 11th Circuit Court of Appeals had stayed an Order by District Court Judge Mark Walker that excoriated the provisions. We covered it in Florida Voter Integrity Law Reinstated By Appeals Court In Big Win For DeSantis:

One year ago, Florida Governor Ron Desantis signed a voter integrity law that curtailed ballot harvesting, the use of drop boxes, and Zuck Bucks (private money to run election functions) …

On March 31 of this year, liberal District Court Judge Mark Walker issued an injunction halting several provisions, which ruling had little chance of surviving appeal, as the NY Times predicted:

A federal judge in Florida ruled on Thursday that sections of the state’s year-old election law were unconstitutional and racially motivated, and barred the state from making similar changes to its laws in the next decade without the approval of the federal government.

The sharply worded 288-page order, issued by Judge Mark E. Walker of the Federal District Court in Tallahassee, was the first time a federal court had struck down major elements of the wave of voting laws enacted by Republicans since the 2020 election. Finding a pattern of racial bias, Walker in his ruling relied on a little-used legal provision to impose unusual federal restrictions on how a state legislates….

And Judge Walker’s ruling didn’t survive. The 11th Circuit Court of Appeals just issued a stay pending appeal, which mean the law is back in full force and effect.

The ban on Zuck Bucks was not enjoined, but other provisions were. From the 11th Circuit Opinion:

The district court here permanently enjoined three provisions of Florida law governing elections in that state. It also subjected Florida to a “preclearance” regime whereby the state—for the next decade—must seek and receive the district court’s permission before it can enact or amend certain election laws. The state now asks us to stay that decision pending appeal. After careful consideration, we grant the state’s motion….

Judge Walker has a flair for flamboyant opinions, particularly when directed at actions by DeSantis, such as his ruling against the Stop Woke Act, which quoted George Orwell in an introduction made for the media:

“It was a bright cold day in April, and the clocks were striking thirteen,”1 and the powers in charge of Florida’s public university system have declared the State has unfettered authority to muzzle its professors in the name of “freedom.” To confront certain viewpoints that offend the powers that be, the State of Florida passed the so-called “Stop W.O.K.E.” Act2 in 2022—redubbed (in line with the State’s doublespeak) the “Individual Freedom Act.” The law officially bans professors from expressing disfavored viewpoints in university classrooms while permitting unfettered expression of the opposite viewpoints. Defendants argue that, under this Act, professors enjoy “academic freedom” so long as they express only those viewpoints of which the State approves.3 This is positively dystopian.4 It should go without saying that “[i]f liberty means anything at all it means the right to tell people what they do not want to hear.”5

[fn. 1 – 1 GEORGE ORWELL, 1984 at 1 (1961). In this case, Defendants’ “argument is like the thirteenth chime of   clock: you not only know it’s wrong, but it causes you to wonder about everything you heard before.” United States v. Marchena-Silvestre, 802 F.3d 196, 203 (1st Cir. 2015). Coincidentally, Governor DeSantis signed the law at issue on April 22, 2022.]

That case is on appeal. Walker is also handling the Disney suit recently filed.

The 11th Circuit issued an Opinion on the merits (as opposed to the prior stay motion) of the District Court’s opinion throwing out the Voter Integrity Act.  It was not a pretty opinion as directed at Judge Walker. From the Introductory paragraph (emphasis added):

This appeal involves four recently enacted provisions of Florida’s election law, including provisions that regulate ballot drop boxes, the solicitation of voters at the polls, and the delivery of voter-registration forms by third-party voter-registration organizations. Several plaintiff organizations sued the Florida Secretary of State, the Florida Attorney General, and several Supervisors of Elections. After a bench trial, the district court enjoined three provisions because it found they were adopted with the intent to discriminate against black voters in violation of the Fourteenth and Fifteenth Amendments as well as section 2 of the Voting Rights Act. And it imposed a preclearance requirement under section 3(c) of the Act. The district court also ruled that the solicitation provision was unconstitutionally vague and overbroad in violation of the First and Fourteenth Amendments. Finally, it enjoined a provision that required third-party voter-registration organizations to provide a disclaimer to voters who use their services to register to vote, but all parties agree that any appeal of the judgment as to that provision has been rendered moot by the repeal of the provision. Because we hold that the findings of intentional racial discrimination rest on both legal errors and clearly erroneous findings of fact and that only part of the solicitation provision is unconstitutional, we reverse in part, affirm in part, vacate in part, and remand.

The Opinion was pretty scathing:

The District Court actually relied on statements by opponents of the bill to infer intent on the part of the legislators. pic.twitter.com/RvUwV0RFLC

— The Notorious B-O-O (@IzaBooboo) April 27, 2023

District court: There's no evidence of racial animus in contemporaneous statements of legislators so I'll just take this one comment out of context.

11th Circuit: NOPE pic.twitter.com/Acv2L66WJy

— The Notorious B-O-O (@IzaBooboo) April 27, 2023

The Opinion was greeted with shock and awe by groups that had claimed it was a voter suppression law:

Even Democracy Docket doesn't try and spin its own founder's failure in the challenge to Florida's election integrity legislation. Elias is doing a great job at making bad law for his side one federal circuit at a time. https://t.co/mo9SKEJoxc

— Justin Riemer (@Justin_Riemer) April 27, 2023

Team DeSantis is celebrating (emphasis added):

In an extraordinary move, the judge in the 2022 decision, U.S. District Judge Mark Walker, ordered the state to get court approval for a decade before it enacts changes in three areas of election law.

But on Thursday, the 11th Circuit Court of Appeals determined that Walker’s 288-page order was based on legal errors and “clearly erroneous” findings of fact. The appeals court sent the case back to the lower court for review.

It also reversed the requirement that Florida needs prior clearance to change parts of voting law. It affirmed Walker’s ruling that a restriction on soliciting voters within 150 feet of a ballot drop box was unconstitutionally vague.

Jeremy Redfern, deputy press secretary to DeSantis, hailed the ruling as a “great win for Florida’s voters.” Jasmine Burney-Clark, founder of Equal Ground, which was a plaintiff in the case, said she was disappointed and maintained that the election law diminished the power of Black voters.

It’s not unreasonable to expect a DeSantis loss before Judge Walker in the Disney case, and a repeat of the 11th Circuit reversing.

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