Voting in America: Access to the Ballot in Florida

Testimony Election Integrity

Voting in America: Access to the Ballot in Florida

June 12, 2022 10 min read
Zack Smith
Legal Fellow and Co-Manager, Meese Center for Legal Studies
Zack is a legal fellow and co-manager of the Supreme Court and Appellate Advocacy Program in Heritage’s Meese Center.
Florida, and other states, are leading the way in making sure elections are safe and secure so that all citizens can have confidence in the outcomes of the electoral process. Election integrity shouldn’t be a partisan issue. But, unfortunately, many on the left are seeking to make it a partisan issue by using inflammatory rhetoric, ignoring the facts, and, in the process, undermining the very goal they claim to want—safe and secure elections where it is easy to vote and hard to cheat.

Statement for the Record to the Committee on House Administration
Chairwoman Zoe Lofgren
United States House of Representatives

6/1/22

Zack Smith
Legal Fellow
Meese Center for Legal and Judicial Studies
The Heritage Foundation

It should be easy to vote and hard to cheat. Unfortunately, this noncontroversial statement has generated a lot of controversy, particularly as some states such as Georgia and Florida—among others—have taken commonsense steps to make sure that their elections are safe and secure.

Misinformation About These Commonsense Measures

Much of the controversy surrounding these measures stems from the misinformation being pushed by those on the left, specifically about the nature of these states’ actions and their impacts. Standing in Atlanta, Georgia, earlier this year, President Joe Biden compared many of these commonsense reforms to “Jim Crow 2.0” and said they are “about two insidious things: voter suppression and election subversion.”REF He went on to say it’s “no longer about who gets to vote; it’s about making it harder to vote . . . .” While claiming that this is “not hyperbole; this is a fact,” only a few sentences later he hyperbolically claimed that these laws sought to impose “the kind of power you see in totalitarian states, not in democracies.”

These statements didn’t come as a surprise, though. Approximately six months earlier, the Biden Justice Department had initiated a partisan lawsuit against Georgia, claiming that Georgia’s recently enacted election reform law, SB 202, violated the Voting Rights Act of 1965 by discriminating against Georgia’s black voters. That claim is nonsense, and as my colleague Hans von Spakovsky and I said at the time, the Justice Department’s complaint read more “like a press release drafted by the Democratic National Committee instead of a serious lawsuit by an apolitical Justice Department.”REF As we explained:

For example, contrary to the Justice Department’s claim, there is nothing remotely discriminatory about requiring individuals to request an absentee ballot at least 11 days before Election Day instead of [Georgia’s] prior deadline of only four days.
The lawsuit fails to mention that in July 2020, the U.S. Postal Service sent a letter to every state, including Georgia Secretary of State Brad Raffensperger, recommending “strongly” that states change their deadline for voters to request an absentee ballot.
The Postal Service told states the optimal deadline should be at least 15 days before Election Day “to account for [USPS] delivery standards.” Georgia acted to protect its voters, not disenfranchise them.

The Biden Justice Department also failed to mention that other challenged provisions of Georgia’s law, such as its prohibition on third parties providing food and water to those waiting in line to vote, were substantially similar to prohibitions founds in other states—such as New York. Yet, it has chosen not to challenge New York’s prohibition. We can only wonder why.

More to the point, the dire predictions from many on the left that these measures were veiled attempts at “voter suppression” proved to be false. In its first primary vote under the new election procedures, Georgia voters turned out in record numbers.REF

These facts also undercut many of the same arguments that those on the left use to argue for a sweeping overhaul, and de facto federal takeover, of our electoral system. H.R. 1, the so-called “For the People Act” and H.R. 4, the John Lewis Voting Rights Advancement Act, would fundamentally alter the balance of power between the states and the federal government in setting basic election rules and procedures and would force states to make it easier to cheat in their elections by mandating dangerous policies that would make their elections less secure.REF

While Congress has limitedly legislated in this area—such as setting the first Tuesday in November as Election Day for federal electionsREF and requiring single-member congressional districtsREF—it has never wholly supplanted state authority in the way proposed in these bills. Under our federal system of government, the states’ legislatures retain predominate constitutional authority to set election rules and procedures.REF

Best Practices for States to Adopt

Given this authority, there are at least twelve broad policies that states should adopt. They should:

  • Verify the accuracy of their voter registration lists;
  • Verify the citizenship of voters;
  • Require Voter ID;
  • Limit absentee ballots;
  • Prevent vote trafficking;
  • Allow election observers complete access to the election process;
  • Provide appropriate assistance;
  • Prohibit early vote counting (or if a state insists on beginning the count before Election Day, banning the release of results until the evening of Election Day, subject to criminal penalties);
  • Provide state legislatures with legal standing to ensure enforcement of election laws;
  • Prohibit same-day voter registration;
  • Prohibit automatic voter registration; and
  • Prohibit private funding of election officials and government agencies.REF

By implementing these policies, states are not discriminating against certain voters or seeking to disenfranchise them. Instead, by implementing them, states are protecting the rights of all voters.

So, how are states doing on this score? Are they protecting the rights of voters? Or do they still need improvement?REF Based on these criteria, my colleagues and I at the Heritage Foundation reviewed the election laws of all 50 states, plus the District of Columbia, and scored them on a 100-point scale. Based on this score, we then ranked them from 1 to 51.REF

No state received a perfect score, showing that even in states that take election integrity seriously, there is still room for improvement. But obviously, some states, such as Florida, scored much better than others.

How Florida Stacks Up

Florida owes its overall high score to legislation like Senate Bill 90 and Senate Bill 524, which implemented many of the above policies. Florida scored 78 out of 100 and ranked 4th in the nation as of December 31, 2021 in terms of making it easy to vote and hard to cheat.REF

Of course, those on the left immediately challenged these laws in federal court and rejoiced when an Obama-appointed federal district court judge issued a 288-page ruling permanently enjoining three provisions of SB 90.REF Recounting this surprising ruling, the Eleventh Circuit Court of Appeals said that because this judge had found “that the Florida legislature had intentionally discriminated against black voters, the court subjected Florida to ‘preclearance’ under Section 3 of the VRA.”REF In practical terms this astonishingly meant that for “the next decade, . . . ‘Florida may enact no law or regulation governing [third-party voter registration organizations], drop boxes, or line-warming activities without submitting such law or regulation’ to the district court for its advance approval.”REF

In staying—or stopping—this district judge’s decision from taking effect, three judges on the Eleventh Circuit Court of Appeals said:

In its assessment of SB90’s historical background, the district court led with the observation that “Florida has a grotesque history of racial discrimination.” It began its survey of that history beginning immediately after the Civil War and marched through past acts of “terrorism” and “racial violence” that occurred during the early and mid-1900s. And it concluded by seeming to chide the Supreme Court for suggesting that “[o]ur country has changed” since the Voting Rights Act as enacted in 1965 . . . .

Accordingly, these Eleventh Circuit judges said that “[a]t least on our preliminary review, the district court’s inquiry does not seem appropriately ‘focus[ed]’ or ‘[]limited,’. . . ” And thus, “we find the district court’s historical-background analysis to be problematic. We have been clear that ‘old, outdated intentions of previous generations’ should not ‘taint [a state’s] legislative action forevermore on certain topics.’”

And that’s exactly right.

To be clear, no one condones past discrimination or disenfranchisement efforts anywhere. They were wrong and morally indefensible. But frankly, many of the arguments being made today against reforms like the ones implemented in Florida are insulting and condescending to minority voters, implying that these voters are less willing or less able to follow these basic laws ensuring election integrity. Based on the available turnout information from Georgia’s most recent primary election, nothing could be further from the truth.REF

Conclusion

Florida, and other states, are leading the way in making sure elections are safe and secure so that all citizens can have confidence in the outcomes of the electoral process. Election integrity shouldn’t be a partisan issue. But, unfortunately, many on the left are seeking to make it a partisan issue by using inflammatory rhetoric, ignoring the facts, and, in the process, undermining the very goal they claim to want—safe and secure elections where it is easy to vote and hard to cheat.

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Authors

Zack Smith
Zack Smith

Legal Fellow and Co-Manager, Meese Center for Legal Studies