Appeals court weighs limits on voter registration groups

Published on January 26, 2024 at 10:04 am

In part of a series of legal battles about Florida election law changes, a three-judge panel of a federal appeals court on Thursday heard arguments in a challenge to a 2023 law that imposed restrictions on groups that collect voter-registration applications.

The wide-ranging law, signed by Gov. Ron DeSantis in May, is part of the Republican-controlled Legislature’s yearslong targeting of “third-party” voter registration groups, which help people sign up to vote.

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The panel of the 11th U.S. Circuit Court of Appeals on Thursday focused on parts of the law that would ban non-U.S. citizens from “collecting or handling” voter-registration applications for the groups and make it a felony for the groups’ workers to keep voters’ personal information.

Chief U.S. District Judge Mark Walker in July issued a preliminary injunction blocking those sections of the law, siding with such groups as the NAACP, Alianza for Progress and Hispanic Federation, which argued the changes are unconstitutional. The DeSantis administration appealed Walker’s decision to the Atlanta-based appeals court.

Part of Thursday’s arguments focused on what type of legal scrutiny the court should apply when determining the constitutionality of the law.

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Mohammad Jazil, an attorney who represents the state, argued that people who work for the voter registration groups are acting on behalf of the government. Previous court rulings have allowed non-U.S. citizens to be restricted from doing certain things that have been deemed a “political function,” Jazil argued.

“The argument boils down to this: 3PVROs (third-party voter registration organizations) are fiduciaries of the people. They’re extensions of the elections officials who help people register to vote. The 3PVROs are doing an inherently political function,” Jazil said. “The alpha and omega, the only thing that they are tasked with doing is taking a form from a voter and giving it to the appropriate elections official. That’s a critical part of the election machinery.”

But Adriel Cepeda Derieux, an American Civil Liberties Union attorney who represented the groups, said the state was asking the court to “blaze a new trail” in how it reviewed the Florida law, which includes a $50,000 fine for each non-U.S. citizen who handles applications.

Derieux pointed to previous court rulings establishing a framework for the functions non-U.S. citizens are allowed to perform.

“Each of the laws at issue in those cases facially discriminated against all aliens as a class without differentiation, as the law here does. And the court said that they were presumptively unconstitutional so struck them down in full,” he said.

Attorney Abha Khanna, who represents the NAACP and other groups, said the workers “are not vested with discretion and do not engage in policymaking authority.”

“The alpha and omega … is to deliver a form from one place to another. That’s it,” Khanna said.

Judge Britt C. Grant pressed Khanna on the issue.

“If all it is is dropping things in the mail, then why do the organizations think it is so key to the political process to have this going on?” the judge asked.

“We believe it is vital and important work. Is it crucial to the election administration process? No. Is it important to the First Amendment rights of our clients? Yes,” Khanna replied.

But Jazil said that the groups perform work that could affect someone’s ability to participate in elections.

“They are not on the voter rolls. They are out. How does that not go to the very heart of the democratic process? If you have someone who is responsible for delivering a form and their failure to abide by that one sole task can have this consequence of you being excluded from the political community and having a chance to say what’s what, that is a crucial function that goes to the very heart of the democratic process, and therefore I submit that the political function exception is met, your honor, ” he argued.

The groups’ lawyers also argued that the prohibition against retaining “personal information” about voters was unconstitutionally vague, in part because the law doesn’t specify which information on voter registration forms would be deemed “personal.”

“There is no uniform definition. … I, sitting here today, do not know what information is considered personal information,” Khanna argued.

“I would think all of it,” Grant said.

“That is not at all clear from the statute,” Khanna responded. “Is it just highly sensitive information? Is my cellphone number and my email address considered my personal information?”

The groups typically gather contact information so they can follow up with voters, she argued.

“Can they still do that? It’s unclear,” Khanna said. “Here we can have ordinary people who can … accidentally stumble into a felony conviction because they don’t understand what line distinguishes lawful from unlawful. I would submit that even the state does not understand what line distinguishes lawful from unlawful.”

The law (SB 7050) made a series of other changes in Florida’s elections system, with DeSantis and other state leaders arguing, in part, that the law was needed to ensure that elections are secure.

Walker’s July ruling acknowledged that the state has the authority to regulate elections.

“Here, however, the challenged provisions exemplify something Florida has struggled with in recent years; namely, governing within the bounds set by the United States Constitution. When state government power threatens to spread beyond constitutional bounds and reduce individual rights to ashes, the federal judiciary stands as a firewall. The Free State of Florida is simply not free to exceed the bounds of the United States Constitution,” he wrote.

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