- April 22, 2024
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Post-Reconstruction history, first-hand narrative and statistics have laid the foundation this week in a legal challenge to a state election law that plaintiffs say will curtail Black and Hispanic Floridians’ ability to cast ballots and register to vote.
The 2021 law (SB 90) was part of GOP leaders’ efforts nationally to make it harder for people to vote by mail after former President Donald Trump’s election loss to Democrat Joe Biden.
Although Trump handily won in Florida, Gov. Ron DeSantis championed the election-law changes and the Republican-controlled Legislature passed the measure despite the objections of Democrats, elections supervisors and voting-rights groups.
The League of Women Voters of Florida, the Florida State Conference of the NAACP, Disability Rights Florida and two dozen other groups filed lawsuits challenging the measure. While the plaintiffs maintain that the law is intended to make it harder for Black and Hispanic residents to vote, Republicans contend the changes are necessary to ensure election integrity.
The trial, which began Monday, Jan. 31, in federal court in Tallahassee, focuses on several parts of the law dealing with mail-in ballots and third-party registration groups, which plaintiffs say minority voters rely on more heavily than whites when signing up to vote.
Testifying for the plaintiffs on Wednesday and Thursday, Northwestern University political science professor Traci Burch said legislators knew the proposed election-law changes would adversely Black and Latino people more than white voters when they signed off.
“The authors of SB 90 were aware of concerns about the racially disparate impact that the law would have on voters of color and passed the law anyway,” Burch said, adding that lawmakers rejected amendments intended to “mitigate that disparate impact.”
Burch said she analyzed the legislation in the context of a “chain of incidents of racial discrimination that has proceeded unbroken” since the post-Civil War era. Burch argued there’s been no “natural stopping point” in that trend even since the Voting Rights Act was passed more than a half-century ago, prompting questions from Chief U.S. District Judge Mark Walker.
“How does the motivation of folks in 1865 or 1965, many of whom are no longer living, inform me as to what the legislators who passed Senate Bill 90 were doing?” Walker asked. “Help me to understand why I’m going to look to the long arc of history as opposed to the arc that would apply to those that actually made decisions in this case.”
Today’s actions are “past dependent,” Burch responded.
“It’s the idea that what happened in the past both informs, influences and shapes what happens in the future, both by ways of setting up past policies instead of the policy today. … Past politics and past policies and actions shape ideology,” she said.
The plaintiffs’ witnesses also disputed Republican lawmakers’ arguments the changes were necessary to ensure election integrity, arguing that no evidence exists that widespread fraud took place in Florida and pointing to DeSantis’ and other GOP leaders’ praise of the state’s handling of the 2020 presidential election.
Republican lawmakers pushed through the changes as Trump and his allies spread unfounded allegations of “fraud” in states that the former president lost to Biden.
As the plaintiffs laid out their case this week, Walker at times appeared skeptical of the argument that the 2021 legislation was designed to target people of color expressly.
“Rather than discriminatory intent when there’s no substantial evidence … of fraud as a justification, isn’t it just as easily the justification that the law was passed to keep the former president happy? And what am I as a fact finder to do when I’m looking at the context and the surrounding facts to pick and choose between the nefarious racial or pernicious racial intent versus, it’s done to keep a political figure happy?” Walker probed.
The 2021 law set new restrictions on the availability and use of drop boxes, which were widely employed by elections supervisors in 2020 amid the COVID-19 pandemic for people to drop off completed vote-by-mail ballots. It also required voters to request mail-in ballots each election cycle, rather than every four years as was previously allowed, and imposed new restrictions on third-party groups engaging in voter registration.
According to a report submitted by the plaintiffs, Black and Hispanic voters are five times more likely to register to vote through third-party organizations. Black voters also doubled their use of mail-in ballots in 2020, research showed.
But while questioning the plaintiffs’ witnesses this week, attorneys for Secretary of State Laurel Lee and national Republican organizations, which joined as defendants in the lawsuit, tried to establish that the changes were benign.
“Would you agree with me that Senate Bill 90 applies to all Floridians, regardless of ethnicity?” Mohammad Jazil, who represents Lee, asked University of Florida political science professor Sharon Austin on Wednesday.
“Yes, sir,” Austin said.
Jazil picked apart a report by Austin that included other research showing that mail-in ballots submitted by Black and Hispanic voters were disproportionately rejected compared to white voters’ ballots in a handful of select counties.
Jazil noted that the report failed to include some of the state’s most populous counties.
He also pointed out that Florida voters have elected a Black lieutenant governor, Jennifer Carroll, and that former President Barack Obama twice carried the state.
“Would you agree with me that compared to 1982 it has become easier for Blacks to register and vote in Florida?” Jazil asked the professor.
“I would say no,” Austin began. “There’s a constant back and forth. When progress is made … when Black and Latino registration and turnout increases … there always ends up being some type of response to make it harder for African-Americans and Latinos to register and turn out. So I can’t honestly say that, 40 years later, that it is easier to register to vote because African Americans and Latinos are constantly fighting these barriers,” Austin said.
The trial is taking place as Republican lawmakers this week rolled out proposals that would add more identification requirements for mail-in ballots; increase the frequency for supervisors to scrub voter rolls; and boost fines for third-party voter registration organizations that don’t follow the law. The proposals would also create an elections security office requested by DeSantis.
