Vote-by-mail settlement clears decks for voting in crucial FL primary, general elections

A polling place in Leon County looked lonely during precinct voting in Florida's presidential preference primary on March 17, 2020. Credit: Issac Morgan

A weekend settlement doesn’t resolve every point of contention between voting rights organizations, the state, and Florida’s 67 county supervisors of elections over access to early and mail-in voting during the pandemic in the country’s largest electoral swing state.

But to the extent the outcome helps disadvantaged groups — Blacks, Latinos, the disabled, and more — overcome the state’s allegedly “gross inaction,” it could help decide an historic election.

And in expanding access to both voting alternatives and mandating that the state and supervisors promote them among the public, it leaves those organizers free to use limited financial resources to move these voters to the polls instead of paying lawyers.

That was the analysis representatives of those groups offered during a Zoom conference call Monday as U.S. District Judge Robert Hinkle signed off on the settlement agreement. The day marked the deadline to register to vote in the Aug. 18 primary elections for state offices and Congress.

“This settlement is a clear victory and a step forward for black and Latinx voters, as well as for all Floridians. Florida has finally done one thing right about the COVID crisis — Florida is settling this case,” said Judith Browne Dianis, executive director of the Advancement Project.

Photo by Stephen Maturen/Getty Images.

“We have won some encouraging changes for voters. But we know the fight for the right to vote continues and that advocacy with the supervisors or elections will be key to ensuring that every voter will have the right to cast a ballot in a free, fair, and safe election, without risking their health,” she said.

“It leaves us time and resources, from our very limited resources, to continue the important work that we do with the voters of Florida,” said Kira Romero-Craft of LatinoJustice.

The agreement came amid President Trump’s disparagement of voting by mail as a cesspool of fraud, even though he’s used the system himself. The New York Times and other critics have deemed those complaints baseless. Trump’s strategy appears to be to energize his base while discouraging turnout among people who don’t like him. See, for example, this AP report.

In fact, the Republican Party of Florida has long relied on voting by mail to get out the vote for its candidates and the system is widely seen as an alternative to potentially long election-day lines that might expose voters to the new coronavirus that, as of the latest data on Monday, had killed 5,072 Floridians.

The Republican Party, which controls most of the levers of government in Florida, including voting administration, also claimed victory. Ronna McDaniel, the party’s national chairwoman, issued a public statement casting the agreement as a surrender by the voting rights advocates.

“Today’s victory is a win for Florida voters and a win for election integrity,” McDaniel said.

“Democrats’ assault on our elections process is not based on fact or reason, which is why they are dismissing every claim in their radical suit. The RNC will continue to step in and fight back against Democrat attempts to circumvent existing law and weaken our elections process.”

Joe Gruters, state senator; chairman of the Republican Party of Florida. Credit: Florida Senate website.

Florida GOP chairman Joe Gruters issued a written statement to the same effect.

“Floridians choosing to vote-by-mail must have confidence that their vote will be safe and secure,” he said.

“RPOF intervened in this lawsuit to protect Florida’s vote-by-mail safeguards that were under attack by Democrat special interests. We are glad that the Democrat-aligned organizations finally saw the light and dropped their lawsuit. We are pleased Florida’s strong laws will remain in place for 2020 when Florida reelects President Trump.”

In fact, both sides gave in the final agreement, which stipulates that each side will pay its own attorney fees. Often, the prevailing party in court can collect fees from the loser.

The claims

Organizations behind the litigation, including the Advancement Project National Office, Demos, and LatinoJustice, filed suit in March seeking a court order extending the voting window for Florida’s presidential preference primary in light of the danger of in-person voting during the COVID pandemic.

The plaintiffs included the Dream Defenders, New Florida Majority, Organize Florida, and individuals.

Republican Gov. Ron DeSantis of Florida. Photo by Joe Raedle/Getty Images

They named Gov. Ron DeSantis; his appointed secretary of state, Laurel Lee; Attorney General Ashley Moody and Chief Financial Officer Jimmy Patronis, as members of the state canvassing board; the 67 county supervisors of election; and each county canvassing board.

The complaint alleged that the state’s failure to adjust its voting scheme to the COVID outbreak amounted to violations of the First and Fourteenth amendments and the Voting Rights Act. To the extent they discouraged voting by disabled people, it added, it violated the Americans With Disabilities Act.

“The voting practices challenged here force voters to make a constitutionally
and statutorily impermissible Hobson’s choice between risking their health and well-being to vote in person, or taking a chance that their vote will not count due to serious, persistent flaws in how defendants administer their Vote-by-Mail system,” the plaintiffs alleged in an updated brief earlier this month.

Hinkle refused to intercede in time to affect the presidential primaries.

The settlement agreement, filed Sunday, calls for state elections officials to hold a workshop with local supervisors, subject to public notice and openness under Florida’s sunshine laws, to set best practices for voting by mail, including encouraging the superintendents to pay return postage on ballots and notify the public about the availability of ballot drop boxes.

The state will launch a social-media campaign to inform voters of their options regarding early, mail-in, and in-person voting.

“The secretary [of state] shall undertake efforts to promote voting options to college-age voters, communities of color, and seniors (e.g., those in senior living facilities, nursing homes, and assisted living facilities) in the formats available to her (e.g., Zoom, social media, or in-person),” the agreement says.

On Monday, Gilda Daniels, litigation director for the Advancement Project, noted that the usual avenues for voter registration, including county elections’ and DMV offices, have been closed because of the pandemic.

She also argued that the settlement’s requirement that officials reach out to potential voters could help those voters avoid the pitfalls that result in disproportionate rejection of ballots cast by minority communities who traditionally have not used that method.

“It certainly made more sense to work cooperatively with the state to make sure that voters understand the vote-by-mail rules so they get their ballots on time, rather than continuing to fight over the deadline,” Daniels said.

ERIC

Florida in December joined ERIC — the Electronic Registration Information Center, an interstate compact that promotes voter registration — a move long sought by Florida’s supervisors. Membership requires Florida to use official records including DMV and Social Security data to reach out to eligible nonvoters.

However, “ERIC doesn’t say much about what that voter outreach has to look like, and that’s where the settlement kind of fills in the gaps,” said Stuart Naifeh, senior counsel to Demos, a think tank that promotes voting rights through means including this litigation.

During the presidential primary, “we saw people who had to choose between voting and staying safe, and that the state did nothing to expand access to early voting and to vote by mail,” said Andrea Mercado of the New Florida Majority Education Fund.

The system’s flaws, she said, disproportionately harm minority groups.

“We’ve witnessed the failure of the state to protect Floridians and we will not stand by and watch the state of Florida fail democracy,” Mercado said.

Florida’s supervisors of elections actually pressed Gov. Ron DeSantis to extend early voting but he refused to do so. The governor, under lobbying from the supervisors, eventually did release $20 million in federal grants for COVID-related elections improvements.

Mark Earley, supervisor of elections, Leon County. Credit: Leon Supervisor of Elections website.

“Both sides recognized that everybody was trying to help voters,” Leon County supervisor Mark Earley told the Phoenix in a telephone interview.

In fact, the supervisors and states had already given the plaintiffs much of what they sought, he said, including an extension of early voting and the period for tabulating vote by mail ballots from 10 days before elections to 25 days.

Disabled plaintiffs want the state to install computer software expanding their ability to vote from home via the internet in time for the November election. That aspect of the lawsuit remains in court, although the parties have entered settlement negotiations in advance of a hearing before Hinkle scheduled for next Monday.

“That’s almost asking the impossible,” Earley said of rolling out the system statewide, although his county already has something similar in place for overseas and military votes. People can log into the county’s site, download their ballots, mark them, print them out, and mail them to the county.

The system would require extensive testing, training, and voter education that would divert from existing efforts to cope with pandemic conditions.

“Implementing something like that really from one vendor statewide given a regular cycle would be asking for trouble. Given the fact that many offices are running short staffed and under the pandemic situation where we’ve got massively increased vote by mail, that’s a tough ask,” he said.

Marcos Vilar, executive director of Alianza for Progress, said in a written statement that the agreement “moves the needle forward” but much work remains.

“We did not get all that we asked for, but we’ve moved the ball forward. We’ll continue to work on making sure every vote counts and removing barriers this administration has sought to limit our right to vote, especially during a pandemic.”