Florida Senate Bill 90: Usual or Unusual Beast of Burden?
October 22, 2021
On May 6, 2021, Governor Ron DeSantis of Florida signed Senate Bill 90 into law. While the Governor and his Republican colleagues in the Legislature heralded SB 90 for its election integrity and transparency measures, critics called foul, or rather “voter suppression.” SB 90 is Florida’s contribution to a flurry of state-led reforms sparked by the national discourse on the validity of the 2020 election. As a result of SB 90, the U.S. District Court for the Northern District of Florida now has a substantial election law docket. Petitioners assert a variety of claims (including ADA, Equal Protection, and Fifteenth Amendment claims), with claims regarding Section 2 of the Voting Rights Act featuring prominently.
In a suit initiated by Florida Rising Together on May 17, 2021, petitioners alleged SB 90 violates Section 2 of the Voting Rights Act. Specifically, Florida Rising alleges[1] the following provisions of SB 90 result in discrimination against minority voters: (1) ID requirements for vote-by-mail ballots; (2) restrictions on third-party voter registration; (3) restrictions on “line warming” in non-solicitation zones; and (4) restrictions regarding ballot drop box security.
Presciently, the Supreme Court of the United States decided Brnovich v. Democratic National Committee shortly thereafter on July 1, 2021— the first time the Court has applied Section 2 to state law regulating the “time, place, and manner” of elections (as opposed to vote dilution). Specifically, the issue in Brnovich was whether two Arizona statutes violated Section 2: (1) a requirement that voters who cast their ballots on election day must do so in their assigned precinct, and (2) a restriction on who could collect ballots. Arizona won at the district court; however, an en banc panel of the Ninth Circuit held that the Arizona statutes violate Section 2. The Supreme Court granted certiorari.
On review, Justice Alito, writing for the Court, created a (non-exhaustive) five-factor analysis to determine whether state law violates Section 2. The “guideposts” were as follows: (1) “the size of the burden imposed”; (2) “the degree to which a voting rule departs from what was standard practice when § 2 was amended in 1982”; (3) “disparities in a rule’s impact on members of different racial or ethnic groups”; (4) “the opportunities provided by a State’s entire system of voting”; and (5) “the strength of the state interests served by a challenged voting rule.”
As applied in Brnovich, the burden of having to vote within one’s precinct on Election Day was insufficiently large. Rather, the Court held the law was a “usual burden[] of voting” (quoting Crawford), and was especially acceptable given the state’s efforts in ensuring voters were informed of their precinct location. As to disparate impact, the Court noted that the voting procedure created an equally open election with 98% of all voters able to comply with the Arizona law (approximately 1% of minority voters voted outside of their precinct compared to 0.5% of non-minority voters). The Court also stated it was generally easy to vote in Arizona, with other, widely utilized non-Election Day options available to voters. Proceeding to the strength of the state’s interest in the law, the Court found Arizona’s interest in distributing voters evenly among polling places and ensuring voters received correct ballots was important and that Section 2 does not require a state to show that its laws are “absolutely necessary” or the “least restrictive alternative.”
Following a similar rationale, the Court also determined that Arizona’s restrictions on ballot collection were likewise permissible under Section 2. Notably, regarding the ballot collection restrictions, the Court held that “even if the plaintiffs had shown a disparate burden caused by [the ballot collection law], the [Arizona’s election integrity] justifications would suffice to avoid § 2 liability.” In addition to fraud prevention, the Court noted that restricting third-party ballot collection could serve a legitimate, ex ante purpose in preventing those parties from pressuring or intimidating voters.
While reactions to the Court’s disposition of Brnovich varied from despair to approval, the ruling marks a judicial retreat from the “political thicket” and is a boon for state legislatures enacting election reform, including Florida. Indeed, Florida Secretary of State Laurel Lee availed her case in Florida Rising of the Brnovich factors, filing an updated memorandum[2] in support of her motion to dismiss Plaintiffs’ Section 2 claims on July 30, 2021, less than a month after the high Court’s ruling.
Walking through each factor, the Secretary first addresses the size of the burden imposed by SB 90 (factor 1) together with the “opportunities provided” by the Florida election system (factor 4). The Secretary asserts that the requirements of SB 90 are no more than “a usual burden of voting for the voter.” While Florida Rising, for example, alleges that the third-party registration restrictions of the law make it nearly impossible for the organization to ensure voter registrations are correctly processed, according to the Secretary that burden falls on Florida Rising, not voters.[3]
Turning to the remaining factors, the Secretary argues that SB 90’s restrictions on voting are much less restrictive than what was required in 1982 (factor 2), plaintiffs insufficiently pled that SB 90’s impact on minority racial or ethnic groups was disparate (factor 3), and that Florida has a strong interest in preventing voter fraud and promoting election integrity (as in Brnovich) (factor 5).
At the time of this posting, the case has survived the Secretary’s motion to dismiss, in part. However, the Brnovich Court did no favors for plaintiffs seeking to make use of Section 2 to challenge state laws regulating the “time, place, and manner” of elections, and it will be more difficult for Florida Rising to succeed on the merits at trial.
[1] Class Action Compl. for Inj. and Decl. Relief, May 17, 2021, ECF No. 1.
[2] Secretary of State’s Omnibus Mem. of Law in Supp. of Mot. to Dismiss, July 30, 2021, ECF No. 122-1.
[3] Pl.s’ Opp’n to Def. Lee’s Mot. to Dismiss, August 13, 2021, ECF No. 130.