The Free State of Florida’s Criminalization of Voter Registration Drives
Thanks a lot, America. You come down here and drive like bats outta hell, use up all our beaches with your spring break debauchery, but you couldn’t do us just one favor. You just couldn’t keep Ron DeSantis busy for another month maybe? Now we gotta deal with him back home and he’s mad all over again because Iowa and New Hampshire couldn’t spare a few percentage points that might have kept him on the road a while longer. Last week, the 11th Circuit heard arguments in NAACP v. Byrd (click to listen) a case involving a Florida law that criminalizes certain voter registration activities. First, the law prohibits “third party voter registration organizations” (3PVROs) from using non-citizens, legal or illegal, to register voters. “A third-party voter registration organization is liable for a fine in the amount of $50,000 for each such person who is not a citizen and is collecting or handling voter registration applications on behalf of the third-party voter registration organization.” A 3PVRO, by the way, naturally includes all nonprofit organizations who conduct voter registration drives all the time: “Third-party registration organization” means any person, entity, or organization soliciting or collecting voter registration applications.” In addition, volunteers commit a 3rd degree felony for certain activities often associated with voter registration:
If a person collecting voter registration applications on behalf of a third-party voter registration organization copies a voter’s application or retains a voter’s personal information, such as the voter’s Florida driver license number, Florida identification card number, social security number, or signature, for any reason other than to provide such application or information to the third-party voter registration organization in compliance with this section, the person commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
Well, those two prohibitions were enjoined by a federal district court:
This case arises from Florida’s latest assault on the right to vote. Plaintiffs move to preliminarily enjoin two amendments to section 97.0575, Florida Statutes. One new provision bars noncitizens from registering citizens to vote, thus discriminating based on alienage, one of the most questionable classifications in equal protection jurisprudence. The other exposes individuals working for third party voter registration organizations to felony prosecutions for retaining voter information without telling them to whom the prohibition applies, what they can retain, and when they can retain it . . . The free state of Florida is simply not free to exceed the bounds of the United States Constitution.”
. . .
It is no answer to assert the Florida Legislature’s work here was “good enough.” Such shoddy tailoring between restriction and government interests presents a dubious fit under rational basis review, and it falls woefully sort of satisfying the strict scrutiny this Court must apply. And a provision as vague as the information retention ban, notwithstanding the Secretary of State’s post-hoc intent to clarify its reach, can serve no end but arbitrary punishment. The United States Constitution demands more than “good enough.”
Undaunted, the Free State of Florida filed a notice of appeal. The state’s brief argues that non-citizens should not be trusted with anything having to do with the “sacred right to vote” because “people who might leave the country at any moment should not be responsible for the delivery of time sensitive voter-registration applications.” And that the provision criminalizing the retention of a “voter’s personal information” is not vague; its clear enough given the examples in the statute, according to the brief. The NAACP’s answer brief pretty much makes mincemeat of the state’s argument. Here is a bit of the summary:
The Citizenship requirement unambiguously bans all noncitizens from engaging in canvassing work on behalf of 3PVROs. It is hard to imagine a clearer example of facial discrimination on the basis of alienage, which the Supreme Court has consistently held triggers strict scrutiny under its equal protection jurisprudence. And the information Retention Ban violates the Due Process Clause because, on its face, its subjects 3PVROs to the threat of criminal prosecution without clearly defining what it prohibits. 3PVROs and their employees and volunteers are left to guess at what they can and cannot do with their voter information pursuant to their missions; if they guess wrong, they risk a felony conviction.
The League of Women Voters amicus brief states:
The Non-U.S. Citizen Volunteer Restriction, which prevents all non-citizens from working as volunteers with third-party voter registration organizations (3PVROs), violates the Equal Protection Clause. On this appeal, appellants present a newfound theory that under United States v. Salerno, 481 U.S. 739 (1987), the provision should be upheld in full if it can be constitutionally applied to any person. But aside from misunderstanding the law, that argument is waived because it was never made below. And appellants have now abandoned their previous argument that even if the law is unconstitutional, it should partially survive and continue to apply to some subgroups of non-citizens. Thus, this Court must apply strict scrutiny and invalidate the entire provision if it fails.
Waiver aside, appellants’ Salerno-based “no set of circumstances” approach would be improper here. Id. at 745. When the Supreme Court has reviewed laws that apply to all non-citizens, each time it has applied strict scrutiny to the entire provision; it has never examined whether the law could be permissibly applied to some group of non-citizens nowhere identified in the statute. Lower courts have employed the same analysis after Salerno, and appellants have not cited a single case upholding a law that applies to all non-citizens on the grounds that it could be constitutionally applied to some subgroup of non-citizens.
darryll k. jones