OPINION:
Election integrity is under attack in Florida, and Americans can count on such attacks to intensify and spread to other states as we approach the mid-term elections in November.
In late March, a federal court struck down three commonsense election integrity reforms in the recently passed Florida Senate Bill 90. Included in the judge’s order was a ban prohibiting the state from enacting any law or regulation governing important aspects of Florida elections for the next decade. This legally flawed order should serve as a warning to other states who want to take the initiative to secure their elections: If a law makes it harder to cheat, the Left is going to challenge it.
The most concerning — and reckless — aspect of the order was the federal judge’s unprecedented decision to place Florida under the strictures of preclearance.
As a result, for the next 10 years, or at least until this ruling is overturned, Florida is prohibited from enacting any law or regulation governing third-party voter registration organizations, drop boxes, or partisan activity occurring near polling places or drop boxes unless the federal court grants approval of the state’s proposed law.
This won’t sit well with Floridians — and it shouldn’t sit well with other states, either.
Preclearance was a Civil Rights era tool created under federal law requiring certain jurisdictions to get approval from either the Department of Justice or a federal court before they could pass a new election law. It has largely been dormant since 2013 when the Supreme Court struck down the formula that was used to determine which states had to submit to this burdensome pre-approval process.
It’s an outdated mechanism that was originally aimed at ensuring equal access to the vote, but now is being used to fuel partisan agendas and derail legislation that protects the integrity of the election process for all voters. In the Shelby decision delivered in 2013, the Court — recognizing that the racial disparity that had once justified preclearance was no longer in play — determined the formula used to place jurisdictions under preclearance was outdated.
Since that 2013 ruling, leftists who oppose election integrity laws have been desperately searching for a way to resurrect preclearance as a tool to stop meaningful reforms that make it harder to cheat. Now, they intend to do it by using the power granted to the judiciary by Congress through an obscure section of the Voting Rights Act seldom used until this Florida court decided to give it a go. Under this section, Section 3, states are compelled to undergo preclearance for an unspecified duration of time based not upon a statutorily prescribed timeline, but on the whim of the court.
Until this latest decision in Florida, there was no precedent to justify wielding this kind of power in this fashion. However, the Left now has the precedent it lacked before — one created out of thin air, by an activist court, with no grounding in the law.
This ruling is the opening salvo for the left’s next attempt to resurrect preclearance, and if it isn’t slapped down quickly by the 11th Circuit Court of Appeals, and subsequently the Supreme Court, it will become the new legal tactic for similar baseless lawsuits filed by the left elsewhere across the country. States concerned with election integrity should prepare themselves for other similar meritless lawsuits employing this same strategy.
Polling shows that a majority of all voters are concerned with rampant fraud plaguing our elections, and an even larger majority support improving election integrity by closing loopholes in election laws that erode trust in the election process. Instead of blindly dismissing these concerns as unwarranted, legislators in Florida listened to voters, and crafted commonsense solutions to address those concerns. And now, a federal court has dusted off an obscure statute, invented a new legal test to justify its use, and employed this newly found power to force legal restrictions upon the state of Florida as retribution for passing commonsense election laws. In the process, the court has placed partisan politics ahead of election security and of the will of the American people.
While the Florida ruling is likely to be overturned, other states should beware: Unfortunately, what happens in Florida isn’t going to stay in Florida. These baseless attacks are only going to intensify as we approach the November mid-term elections, but they too will ultimately fail.
• Stewart Whitson is the legal director at the Foundation for Government Accountability.
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