State seeks to scuttle absentee-ballot case

By Dara Kam, The News Service of Florida

TALLAHASSEE — Florida officials are pushing back against an attempt to ease the state’s vote-by-mail procedures amid the COVID-19 pandemic, saying federal lawsuits filed by left-leaning groups are based on “speculative” fears about what might occur later in the year.

In court documents filed Wednesday, lawyers representing Gov. Ron DeSantis and Secretary of State Laurel Lee asked U.S. District Judge Robert Hinkle to dismiss a case that is a consolidation of legal challenges filed by groups including Priorities USA, Dream Defenders and Alianza for Progress and individual plaintiffs.

The challenges seek, among other things, to extend a deadline for vote-by-mail ballots and to require elections officials to pay for postage on mail-in ballots. Plaintiffs also want the court to order state and county elections officials to boost voter-registration outreach and implement protective measures for in-person voting.

But in a 37-page motion to dismiss the case, lawyers for the DeSantis administration accused the plaintiffs of asking Hinkle to “rewrite Florida’s election code,” which they said the federal court lacks the authority to do.

The state also argued that the plaintiffs failed to show “that they have suffered a cognizable burden to their right to vote” or that Florida’s election procedures are unconstitutional.

The governor is working with county supervisors of elections and others to address challenges posed by the novel coronavirus, which causes the respiratory disease COVID-19, DeSantis’ lawyers said.

“The plaintiffs — and even some of the county supervisors — may disagree with the policy decisions or progress of such efforts, but they cannot dispute that they are within the state’s power to address,” the attorneys wrote. “And, moreover, they can cite no basis to invoke the jurisdiction of a federal court to critique — much less pre-judge or dictate — such discretionary decisions of state and local government.”

The state disputed plaintiffs’ allegations that requiring people to pay for postage on vote-by-mail ballots amounts to an unconstitutional “poll tax.”

But paying for stamps “imposes monetary and transaction costs on voting,” plaintiffs’ lawyers wrote in a brief also filed late Wednesday.

“For voters who are elderly, disabled, live far from a post office, or have limited access to transportation, the postage requirement imposes significant transaction costs on casting a mail ballot and may deter voting,” the plaintiffs’ lawyers argued.

The DeSantis administration lawyers, however, said the cost of stamps is a fee imposed by the U.S. Postal Service, not the state. Other courts have held that postage “is an indirect cost associated with voting that does not deprive the voter of the right to vote,” they argued.

Pointing to a letter that county supervisors of elections sent to DeSantis in April, the plaintiffs said elections officials already are “sounding the alarm” about challenges in the August primary and November general elections.

The supervisors asked DeSantis for emergency measures they said would help them cope with an anticipated “significant statewide shortage” of poll workers because of the coronavirus. County elections officials “encountered significant challenges” during the March presidential primary elections, such as polling places becoming unavailable, difficulty in acquiring hand sanitizer and other supplies and “substantial numbers of poll workers deciding not to work,” Levy County Supervisor of Elections Tammy Jones, president of the Florida Supervisor of Elections organization, wrote to DeSantis on April 6.

The challenges will hamper in-person voting later this year, the plaintiffs argued in a Wednesday motion for a preliminary injunction.

“To avoid packing voters into a few, consolidated polling locations — a strategy which resulted in disenfranchisement, hours-long lines, and the spread of COVID-19 in Wisconsin’s recent primary — Florida’s supervisors are encouraging voting by mail and expecting voters will do so at unprecedented rates,” the plaintiffs’ lawyers wrote.

But several provisions of Florida vote-by-mail laws “threaten voters’ ability to successfully exercise their right to vote,” the lawyers alleged.

In addition to the cost of postage, plaintiffs are also challenging a provision in Florida law requiring vote-by-mail ballots to be received by 7 p.m. on Election Day, even if ballots were mailed earlier.

More than 15,000 ballots received after the deadline were not counted in 2018, “even before a pandemic induced an increase in mail voting and increased pressure on a struggling postal service,” plaintiffs’ lawyers wrote.

The deadline “is particularly likely to disenfranchise young voters,” who attend school in other states and whose ballots take longer to receive and return to Florida, the lawyers argued. The receipt deadline is also twice as likely to disenfranchise Hispanic voters compared to white voters, according to the plaintiffs.

The left-leaning groups are also challenging a provision in Florida law restricting paid workers from collecting mail-in ballots.

The state has requested $20 million in federal funds for pandemic-related election support but hasn’t prepared for an anticipated onslaught of mail-in-ballots, the plaintiffs said.

Voting by mail, a process used for years in Florida — where razor-thin elections have become the norm — has emerged as a political flashpoint, with President Donald Trump repeatedly linking mail-in ballots with voter fraud.

“There is NO WAY (ZERO!) that Mail-In Ballots will be anything less than substantially fraudulent. Mail boxes will be robbed, ballots will be forged & even illegally printed out & fraudulently signed,” the president tweeted on Tuesday.

The lawsuits in Florida, a battleground state considered critical for a White House win by both Trump and presumptive Democratic nominee Joe Biden, has drawn national attention.

The Republican National Committee and other state and national GOP groups have asked to intervene in the case. In a memorandum of law filed May 21, the Republican organizations argued that “political parties have a recognized interest in asserting and protecting the rights of their members who are voters in upcoming elections and in protecting their own agendas and resources from changes to election laws.”

During a telephone hearing Friday, Hinkle appeared skeptical of plaintiffs’ objections to allowing the Republican groups to join in the lawsuit.

The cadre of attorneys in the case includes Washington, D.C.-based lawyer Marc Elias, who represents Priorities USA and other plaintiffs and has led election-related challenges throughout the country, including previous lawsuits in Florida.

Mindful of the upcoming August primary elections, Hinkle fast-tracked the case and scheduled a trial to start on July 20.

The Republican groups on Wednesday also asked the federal judge to dismiss the lawsuit, echoing state separation-of-power arguments.

“Plaintiffs’ claims raise issues that are both constitutionally entrusted to Florida’s political branch, the Florida Legislature, and involve no judicially manageable standard to adjudicate plaintiffs’ claims. These types of claims are beyond the court’s jurisdiction,” lawyers for the Republicans wrote.

The plaintiffs aren’t asking Hinkle to fix specific constitutional harms, the GOP lawyers argued.

“They ask this court to rewrite carefully crafted legislation and compel state officials to act in ways plaintiffs deem better as a matter of policy,” they wrote, adding that the requested relief “invades the Florida Legislature’s federal constitutionally vested right, and as such, should be dismissed.”

This week, Inweekly reporter Jeremy Morrison talked with Escambia County Supervisor of Elections David Stafford about the upcoming primaries and general election – “Preparing for a Pandemic Election.”