Several federal appellate judges published a “histrionic [dramatic] dissent,” according to their colleagues, after the appeals court refused to rehear a challenge to a Florida election integrity law. A three-judge panel of the same court previously upheld large portions of the law, and the dissenters opposed the court’s decision to deny a rehearing by all 12 court members.
That panel decision came after a lower court issued an injunction blocking several provisions of the law, finding the legislature enacted them to discriminate based on race.
The lower court’s injunction blocked three provisions of the law, as Legal Insurrection reported: ballot drop box monitoring and hours of operations requirements, a prohibition on soliciting voters at a polling place or drop box, and a mandate that voter registration forms gathered by third parties be delivered to election officials within two weeks.
The U.S. Court of Appeals for the Eleventh Circuit, which includes Florida, decided by an unpublished vote to deny the rehearing request on September 21. Several judges, however, signaled their vote by publishing opinions respecting the denial.
Chief Judge William Pryor and two others penned an opinion supporting the denial and castigating the opposition for their “histrionic dissent.” Pryor took the dissenting judges to task for their criticism of the law and support of the lower court’s decision:
What are the supposedly racist provisions that the district judge enjoined officials from enforcing? They are unremarkable, race-neutral policies designed to bolster election security, maintain order at the polls, and ensure that voter registration forms are delivered on time.
The dissenters alleged the panel judges failed to consider the historical record when assessing the intent of the legislature, accusing the judges of deeming such evidence “irrelevant.”
Pryor rebutted this accusation, arguing the court merely refused to allow “the old, outdated intentions of previous generations” dating back to the Civil War “to taint Florida’s legislative action forevermore.”
“Past discrimination,” Pryor continued, “is relevant, but historical background” is only one source of evidence that should not “be overweighed.”
We acknowledge that laws affect people differently across political and socioeconomic lines. But that fact does not make every historical event that contributed to disparities among racial groups relevant to an analysis of discriminatory intent on the part of a particular legislature.
Examining the legislative record, Pryor found “a stark lack of evidence of discriminatory intent of the present Florida legislature.”
“To the contrary,” Pryor argued, “recent history shows that, as Florida has become increasingly racially diverse, its elections have become increasingly open and accessible.”
The dissenters also accused the court of giving too much credence to the legislature’s stated justifications for the law, which the lower court found were mere pretexts for racial discrimination. Prior, however, argued the justifications were entitled to a presumption of validity absent evidence to the contrary:
[T]he legislators’ justifications—election security and preventing voter fraud—were presumptively lawful and credible, and the district court clearly erred by finding otherwise. The sponsors and supporters of [the law] repeatedly asserted that they were motivated by concerns of electoral integrity.
The dissenters disagreed, citing the lower court’s finding of “conflicting” justifications among the legislators’ support for the law.
The judges also disagreed about how to treat the lower court’s factual findings, which are given great deference on appeal because of the lower court’s ability to make credibility determinations of “eyewitness testimony.” The dissenters accused the court of usurping the proper role of the lower court by not deferring to that court’s factual findings.
Pryor, however, noted that the panel judges took issue not with facts presented during “eyewitness testimony” but with “mathematical facts” the lower court misconstrued:
If a district judge found that two plus two equals ten, we would lose no sleep over reversing for clear error, even if the judge relied on the testimony of a college mathematics professor. And reversing in such an instance would certainly not be “usurp[ing] the authority” of the district court to “weigh the merits of the expert testimony.”
The appeals court decision:
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