What on Earth is Going on with Florida? Explaining the Purcell Principle and Ongoing Litigation Over SB 90
October 28, 2022
By Emily Baker
There has been significant news coverage on court proceedings covering Florida state election law. Recent articles include titles such as “Florida appeals court questions ruling on elections law” and “An appeals court questions a ruling against parts of Florida’s election law.” The main questions are, what happened and what do these reports mean?
Starting from the beginning: Florida’s Senate Bill 90 was signed by Governor Ron DeSantis, live on Fox News, on May 6th, 2021. It received immense criticism, because its effect would generally make it more difficult to vote by mail. The bill was immediately challenged by multiple sets of plaintiffs—the Harriet Tubman Freedom Fighters, the League of Women Voters, the Florida NAACP, and Florida Rising Together—each bringing slightly different claims. The lawsuits were consolidated into one case by the district court, challenging three colorable issues:
- A provision regulating the use of drop boxes for collecting ballots criminalized dropping off more than two ballots besides those from immediate family members and required monitoring by election personnel. As a result, access to drop boxes was limited to posted hours of operation.
- The Registration-Delivery Provision requires third-party voter-registration organizations to deliver voter-registration applications to the county where an applicant resides within fourteen days, and the Registration-Disclaimer Provision specifies information that third-party voter-registration organizations must provide to would-be registrants. Third-party voter-registration organizations can be fined up to $50,000 per year for violating either of these provisions, a stark increase from the previous $1,000 limit per year.
- The Solicitation Provision prohibits the solicitation of voters within 150 feet of a drop box or polling place.
Plaintiffs argued that each of these provisions discriminated against voters on the basis of race, in violation of the Fourteenth and Fifteenth Amendments and Section 2 of the Voting Rights Act; specifically that the Registration-Disclaimer Provision compelled speech in violation of the First Amendment and that the Solicitation Provision was unconstitutionally vague or overbroad in Violation of the First and Fourteenth Amendments.
Focusing on the racial discrimination, the lower court held that SB 90 “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 court found that the challenged provisions were unconstitutional and unenforceable because they limited access to the ballot. For example, people frequently help elderly voters by dropping off their ballots for them and is a common practice in church groups. Additionally, the limited accessibility to ballot drop boxes can favor white-collar voters who have greater flexibility in their jobs. In consequence, the District Court placed the state of Florida on preclearance for ten years, which means that the state would have to seek federal approval to “preclear” any attempt to pass new laws specifically related to drop boxes, line-warming (a commonly employed practice of giving out food and water to voters waiting in line), and voter registration organization activities.
The 11th Circuit Court of Appeals, however, “stayed” the district court’s injunction in May of 2022 on the basis of the “Purcell principle,” which is the idea that courts should not change election rules on the eve of an election because doing so could confuse voters and create problems for officials administering the election. The 11th Circuit employed the principle here, because the lower court’s injunction implicated voter registration, which was currently underway, and required the state to retain poll workers when the next statewide election was nearly four months away.
In addition, the 11th Circuit took issue with the district court’s analysis of the historical background and its conclusion that “Florida has a grotesque history of racial discrimination.” The district court supported the conclusion by the recounting of several acts of violence against Black voters in Florida, notably the massacre of more than thirty Black Floridians on Election Day after a Black voter went to the polls in 1920. The 11th Circuit’s holding was in part based on the principle that “old, outdated intentions of previous generations” should not “taint [a state’s] legislative action forevermore on certain topics” and that the district court ruling failed to take into account the presumption of legislative good faith.
While critical, this was only a temporary stay pending appeal. These new headlines, while flashy, only address questions judges asked in the oral argument and not the merits or the 11th Circuit’s final decision. SB 90 will be in effect (at least) until the 2022 midterm elections are over, likely making it more difficult for many Floridians to vote by mail.