Sides battle over election law ‘solicitation’ restrictions

By Jim Saunders
News Service of Florida

Pointing to the First Amendment, voting-rights organizations urged a federal appeals court to reject part of a controversial Florida elections law that prevents groups from providing food and water to people waiting in line at polling places.

Attorneys for the League of Women Voters of Florida, the Black Voters Matter Fund, the Florida Alliance for Retired Americans and other plaintiffs filed a 67-page brief asking the 11th U.S. Circuit Court of Appeals to uphold a district judge’s ruling that said increased “solicitation” restrictions near polling places violate speech rights.

Chief U.S. District Judge Mark Walker in March found parts of the 2021 elections law (SB 90) unconstitutional after voting-rights groups and other plaintiffs filed a series of legal challenges. Walker concluded that the law passed by the Republican-controlled Legislature was intended to discriminate against Black Floridians.

The state, the Republican National Committee and the National Republican Senatorial Committee appealed Walker’s ruling to the Atlanta-based appeals court, which in May issued a stay that will allow the law to be in effect during this year’s elections.

But the underlying legal battle continued, with the appeals court scheduled to hear arguments Sept. 15 in Miami. The series of challenges have been consolidated, with the brief filed last Wednesday by the League of Women Voters and other plaintiffs in its portion of the case dealing with only two issues.

That included arguments by the groups that the additional solicitation restrictions violated the First Amendment because they are overbroad and vague. Florida has long had a law aimed at curbing solicitation, such as seeking votes and distributing campaign literature, near polling places.

But the brief last Wednesday pointed to an additional phrase added in the 2021 law that would prohibit “engaging in any activity with the intent to influence or effect of influencing a voter.” It contended that the wording is “astonishingly broad” and unconstitutional.

“It prohibits a vast swath of expressive activity at polling places, even though the more tailored prohibitions that existed before its enactment were fully adequate to ensure order at polling places and protect voters from electioneering in their immediate vicinity,” the brief said.

At least part of the issue involves efforts by groups to provide food and water to voters waiting in line. Opponents of the additional restrictions have contended that areas with large numbers of Black and Latino voters have traditionally had longer wait times for voting and that churches and other organizations have provided food, water and other aid to voters.

But in a brief last month asking the appeals court to overturn Walker’s ruling, attorneys for the Republican National Committee and the National Republican Senatorial Committee disputed that the solicitation issue involves speech rights.

“Distributing food and water to voters in line is not inherently expressive; it conveys no identifiable message that is overwhelmingly apparent. Plaintiffs give gifts, such as bottled water or pretzels, to voters in line. But there is not a ‘great likelihood’ that the voters interpret these gifts to convey an identifiable message,” the Republican organizations’ brief said, partially quoting from a legal precedent.

The GOP organizations also contended that Florida needed to update its solicitation law.

“Before SB 90 was enacted, agitators at polling places in Florida were broadcasting messages over bullhorns and initiating fights,” last month’s brief said. “It was also difficult for election officials to tell whether a given interaction between third parties and voters involved improper electioneering, fraud, or undue influence.”

But the brief filed last Wednesday by lawyers for the voting-rights groups disputed such arguments and said the law in the past allowed removing “disruptive and unruly persons” from areas around polling places.

“Nothing in the record suggests that (county elections) supervisors’ authority under those existing provisions was not up to the task,” the voting-rights groups’ brief said. “Indeed, the district court found that the supervisors did not ask for the solicitation definition or support its enactment.”

Walker’s March ruling sharply denounced parts of the law, which Gov. Ron DeSantis and other Republicans approved amid a broader GOP push to change elections laws after former President Donald Trump lost in 2020. Florida had a relatively smooth 2020 election, but Republicans argued more restrictions were needed to prevent future wrongdoing.

In his ruling, which also addressed parts of the law dealing with issues such as drop boxes for vote-by-mail ballots, Walker wrote that Florida “has repeatedly, recently, and persistently acted to deny Black Floridians access to the franchise.”

The other part of the voting-rights groups’ brief last Wednesday involved an issue dealing with disclaimers by voter-registration groups. The Legislature this year repealed that part of the law, but debate has continued about how the appeals court should address it.