Poor Rick Scott! The Florida Republican governor had just one job this election season: Vigorously enforce the state’s voter disenfranchisement laws to disqualify as many Democratic votes as possible. Unfortunately for Scott, over the weekend, U.S. District Court Judge Mark Walker barred the governor from deploying one of his best disenfranchisement tools through two equally excoriating rulings. Both decisions provide an excellent example of the federal judiciary’s increasing skepticism over irrational voting restrictions.
First up: On Saturday, Walker bench-slapped Scott and his administration for attempting to delay a ruling on a bizarre Florida statute about ballot signatures. Under state law, if a voter’s signature on a mail-in ballot doesn’t match the signature on file, the ballot is declared illegal, the vote isn’t counted, and the voter receives no notice, and thus gets no opportunity to fix the problem. County “canvassing boards” decide whether a ballot signature matches the signature on file; these boards are staffed by laypeople who are not required to undergo formal handwriting analysis education or training. As Walker put it, applying the law this election cycle would entail “taking as many as 23,000 ballots, crumbling them into balls, and throwing them in the trash like dirty tissue, without any opportunity to cure.” (Oddly, if a voter simply forgets to sign her ballot, she is notified and has an opportunity to fix the error.)
Two Democratic groups challenged the Florida law as an impermissible burden on the constitutional right to vote, which includes the right to have one’s vote counted. In response, Florida Secretary of State Ken Detzner requested a full week to respond to the plaintiffs’ lawsuit. As Walker wrote on Saturday, the court:
initially balked and specifically stressed that it thought a week was overly generous, it nonetheless yielded. It did so because the Florida Secretary of State specifically represented to this Court that he needed to develop a factual record so he could meaningfully respond to the case on the merits.
“What did this Court get in response?” Walker continued. “The same arguments that the Florida Secretary of State has made in every voting-rights case.” Why did rehashing an old argument—a hodgepodge of frivolous procedural defenses—take Detzner a week? “Apparently,” Walker quipped, “the Florida Secretary of State’s computers do not possess the same ‘cut and paste’ function found on most computers.” He then wrote:
If one were skeptical, it would appear that the Florida Secretary of State requested as much time as he felt he could possibly justify so that he could use every second available to run out the clock. And by wasting a week on his scintillating response, he quite nearly succeeded. … But this isn’t a game; this Court will not allow the Florida Secretary of State—a high-level officer of the State of Florida—to take a knee and deprive Florida citizens of their most precious right.
This undeclared war on Floridians’ right to vote is even more egregious considering that the Florida Secretary of State’s stated mission is to “protect[] democracy through the oversight of fair and accurate elections.”
The very next day, having refused to entertain Detzner’s dilatory tactics at a hearing, Walker issued a formal ruling. It was about as brutal as you might expect. Walker held that the Florida statute constitutes a “severe burden” on the fundamental right to vote. That means the law is unconstitutional unless Florida can prove that it is “narrowly drawn to advance a compelling importance.” But Florida did not even try to defend the law on the merits, instead tossing out those aforementioned procedural arguments. So Walker presumed that the alleged “compelling interest” is preventing voter fraud—then concluded that the Florida law does not advance this interest at all.
“There is simply no evidence that these mismatched-signature ballots were submitted fraudulently,” Walker explained. “Rather, the record shows that innocent factors—such as body position, writing surface, and noise—affect the accuracy of one’s signature.” Walker went on:
Even assuming that some lesser level of scrutiny applied (which it does not), Florida’s statutory scheme would still be unconstitutional. It is illogical, irrational, and patently bizarre for the State of Florida to withhold the opportunity to cure from mismatched-signature voters while providing that same opportunity to no-signature voters. And in doing so, the State of Florida has categorically disenfranchised thousands of voters arguably for no reason other than they have poor handwriting or their handwriting has changed over time. Thus, Florida’s statutory scheme does not even survive rational basis review.
So Walker granted a preliminary injunction requiring canvassing boards to notify voters when their ballots are rejected due to signature mismatch and giving them the opportunity to cure the defect. Walker then closed with a stinging rebuke to Scott and his administration:
Once again, at the end of the day, this case is about the precious and fundamental right to vote and to have one’s vote counted. In our democracy, those who vote decide everything; those who count the vote decide nothing. Justice Stewart once quipped, in reference to pornography, “I know it when I see it …” Likewise, this Court knows disenfranchisement when it sees it and it is obscene.
Incidentally, Walker was the also the judge who forced Florida to extend its voter registration deadline, already the strictest allowed under federal law, to accommodate voters disrupted by Hurricane Matthew. He has probably done more in the past week to protect Floridian voting rights—and frustrate proponents of disenfranchisement like Rick Scott—than anyone else this year.
