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Florida’s New Voting Law – Fact Sheet

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Overview

 

Florida recently enacted Senate Bill 90, an elections omnibus that enhances Florida’s already strong election integrity policies by adding several integrity reforms while continuing to make it easy for voters to participate in the political process.[1] 

 

Among its provisions, S.B. 90:

 

  • Establishes new procedures for absentee ballot drop boxes;
  • Creates requirements before election officials can enter into civil settlements that affect election procedures;
  • Precludes the acceptance of private funds for election administration;
  • Reforms third-party absentee ballot collection;
  • Mandates new disclosures for third-party voter registration organizations;
  • Bolsters voter identification requirements for absentee ballot applications;
  • Penalizes the solicitation of voters near polling places and drop boxes; and
  • Prohibits election officials from unilaterally—absent affirmative requests by voters—mailing absentee ballots or ballot applications to voters.

 

State legislatures generally have inherent authority to prescribe election procedures in state elections, unless their state constitutions provide otherwise.  State legislatures are authorized to determine the time, place, and manner of federal elections within their state under Article I, Section 4 of the United States Constitution.[2]  States have latitude to implement laws and procedures designed to administer their elections in an efficient, secure, and fair manner.  States have adopted different election policies and procedures to balance these different concerns.  While states may be lenient or in the minority on certain election procedures designed to enable voters to easily participate, they often balance these procedures with more stringent, mainstream election rules to guarantee honesty and fairness in the process.  Florida has done this by enacting S.B. 90.

 

Several lawsuits were filed to challenge a handful of S.B. 90’s 32 sections on the grounds that certain provisions place an unconstitutional burden on the fundamental right to vote under the Fourteenth Amendment.  In early 2021, a federal court struck down 3 of the challenged provisions but left the remaining provisions in place.  This memo examines the challenged provisions of S.B. 90 by highlighting similar, valid election procedures already in use by numerous states across the country to demonstrate the degree to which S.B. 90’s puts Florida solidly within the mainstream.

 

Drop Boxes

 

Claim: S.B. 90’s new drop box provisions unconstitutionally burden the right to vote for voters “who struggle to vote on election day or during early voting hours due to personal circumstances.”[3]

 

While every state provides voters with at least some opportunity to vote by absentee ballot, a minority of states, including Florida, allow voters to return their completed ballots to a designated drop box.[4]  In considering whether to allow voters to return their mail ballots to designated drop boxes, states must weigh the desire for voters to easily return their mail ballots with the security risk created when this option is abused.  States that permit the use of drop boxes, therefore, have established various safeguards to ensure drop boxes can be readily used by voters without being abused by bad actors or in danger due to honest mistakes.[5]

 

During the COVID-19 pandemic, jurisdictions across the country were compelled to provide voters with expanded access to mail voting, which often included ballot return methods such as drop boxes.[6]  However, even after the 2020 election, just 22 states have enacted legislation to prescribe in what manner voters can return completed ballots to a drop box or other early voting location.[7]  Many of these states mandate or recommend that drop boxes be continuously monitored by staff or video camera and/or limit the authority of election supervisors to go beyond what statute prescribes, such as having mobile or 24-hour drop boxes.[8] 

 

Florida enacted the limited use of drop boxes in 2019, which were first implemented during the 2020 election cycle. [9]  The law required each early voting location and office of the respective supervisor to be equipped with a secure drop that voters could utilize to return their mail ballots during the early voting period.[10] 

 

After the 2020 election, legislators passed S.B. 90 to revise the requirements governing the placement and supervision of secure drop boxes for the return of vote-by-mail ballots.[11]  Under Section 28 of S.B. 90, drop boxes must be geographically located, to the extent practicable, to ensure that all voters have an equal opportunity to cast a ballot.[12]  Drop box locations must be set at least 30 days before an election and can only be moved to comply with the law.[13]  Drop boxes are required to be continuously monitored by an election worker during the normal early voting hours of operation, which is when the drop box must be accessible to voters.[14]  Lastly, the new law penalizes election officials who utilize drop boxes outside the scope of the law to ensure uniformity and security across the state.[15] 

 

Like several states that prescribe the use of drop boxes, Florida now requires drop boxes to be continuously monitored.  Furthermore, Florida limits the discretion election officials have to vary from the statute in providing drop boxes like many other states.  With these safeguards, Florida remains among the more progressive states that even offer this voting option while enacting commonsense and commonly used parameters that ensure drop boxes are properly and uniformly used throughout the state. 

 

Ballot Harvesting (Third Party Ballot Collection)

 

Claim: S.B. 90’s limitation on ballot harvesting poses an unconstitutional “barrier to the franchise for voters with disabilities,” leading to “outright disenfranchisement.”[16]

 

In efforts to expand ways in which voters may return their absentee ballots, many states allow voters to solicit the help of someone else to return their absentee ballot.  When states provide this option, they often enact safeguards and limitations to prevent fraud, voter coercion, and undue influence by persons assisting voters.

 

Seventeen states do not impose any parameters around who can return a voter’s completed absentee ballot, giving rise to acute ballot integrity concerns.[17]  Thirty-two states, in varying degrees, limit both who may handle or return a voter’s completed ballot and the number of completed ballots a person may return.[18]  Sixteen of these states—including Florida—allow absentee ballots to be returned only by the voter’s family member, household member, or caregiver.[19]  Sixteen of these states permit anyone to return the voter’s completed ballot so long as the voter designates the collector as his or her agent.[20]  Of these 31 states, 10­––including Florida––limit the number of ballots an agent may return on behalf of voters and four limit how long an agent may possess these ballots before returning them to election officials.[21]  Alabama stands alone in allowing only the voter to return his or her absentee ballot.[22]

 

Prior to S.B. 90, Florida already limited the number of completed absentee ballots a person could return each election cycle to two ballots, not including the person’s own.[23]  A person was permitted to collect and return any number of their immediate family members’ ballots.[24] 

 

Section 32 of S.B. 90 did not change the aforementioned provisions, the law simply extended the two-ballot maximum to a person distributing, ordering, requesting, and collecting ballots.[25]  With S.B. 90, Florida follows 10 other states that limit the number of ballots a person may return.  Furthermore, Florida follows the vast majority of states that allow a family member to return the voter’s absentee ballot. 

 

Note: The United States Supreme Court’s recent decision in Brnovich v. Democratic National Committee upheld Arizona’s law limiting ballot harvesting. [26]  Arizona’s law was far more strict than Florida’s, allowing only persons in close relationship to the voter ­– family, caregiver, guardian – to return the voter’s completed ballot and making it a felony for unauthorized third parties to collect and return completed absentee ballots.[27]  In doing so, the 6-3 Court solidified the ability of states to implement similar election integrity safeguards in light of the strong and entirely legitimate state interests of deterring potential fraud, protecting against undue influence, and improving voter confidence.[28] 

 

Absentee Ballot Application Verification

 

Claim: S.B. 90’s requirement that voters verify their identity by providing either their Florida driver’s license number, Florida identification card number, or the last four digits of their Social Security number when requesting an absentee ballot unconstitutionally “imposes[s] burdens and barriers on the right to vote.”[29]

 

Almost every state requires a voter to authenticate her absentee ballot application.[30]  These measures help ensure that the voter requesting the absentee ballot is who she says she is and not someone else.  Twenty-six states verify the information provided on the absentee ballot application against the voter’s registration file.[31]  Eleven states go further to also require the voter to sign the application to compare that signature to the one on the voter’s registration record.[32]  Several other states have more stringent methods, such as requiring a notary signature, a witness signature, or a copy of the voter’s identification.[33] 

 

Prior to S.B. 90, Florida was in the minority of states by having virtually no absentee ballot application verification procedures.  Officials were required to mail an absentee ballot to any person who made a request in person or in writing without requiring anything more; a voter’s signature was required only when the ballot was to be delivered to an address other than the one on file.[34]

 

Section 7 of S.B. 90 now requires a voter to provide her Florida driver’s license number, Florida identification card, or the last four digits of her Social Security number when requesting a mail ballot for verification.[35]  While Florida’s requirements now exceed the strength of most states’ verification requirements for absentee ballot applications, Florida’s laws are still well within the norm to advance an important objective.

 

Frequency of Requesting Absentee Ballots

 

Claim: S.B. 90’s requirement that voters request an absentee ballot every 2 years instead of 4 imposes an unconstitutional burden and barrier on the right to vote.[36]

 

Some states allow a voter’s request to vote by mail for one election to apply to future elections as well, rather than requiring the voter to request a mail ballot for each election.  Fifteen states allow voters to permanently receive mail ballots; however, 10 of these states restrict this option to elderly voters and voters with permanent disabilities.[37]  The remaining 5 states allow any voter to elect to receive a mail ballot every election without having to make additional requests in the future.[38]  The vast majority of states either require the voter to request a mail ballot each election or impose practical limitations to confirm voters still desire to vote by mail, to ensure voters expect to receive a ballot by mail, to verify ballots go to actual, active voters, and to prevent a flood of idle ballots that can be taken advantage of by bad actors.[39]

 

Prior to S.B. 90, Florida allowed a voter’s request to vote by mail to apply to all elections through the end of the calendar year of the second ensuing general election for a total of four years.[40]  Section 24 of S.B. 90 changed the law to allow one request to apply to all elections through the next general election for a total of two years.[41]  This change leaves Florida among the more lenient states that allow a voter’s request to vote by mail to apply to future elections.

 

Voter Solicitation

 

Claim: S.B. 90’s non-solicitation provision “impinge[s] upon voters’ fundamental right to cast a ballot.”[42] 

 

Every state has in place limitations on political activities in and around polling places while ballots are being cast.  These limitations aim to protect the integrity of the electoral process by reducing pressure or undue influence on voters at the voting location.  Thirty-seven states prohibit campaign materials, including signs, banners, and literature.[43]  Twenty-eight states directly prohibit influencing voters and soliciting votes.[44]  Another 15 states prohibit campaign apparel, including buttons, stickers, and placards.[45]  States usually ban these types of activities within 50-200 feet of a polling location.[46]

 

Prior to S.B. 90, Florida prohibited political activity, including but not limited to soliciting votes, contributions, or petition signatures; distributing political or campaign materials, including leaflets and handouts; and selling items within 150 feet from a polling location.[47]  Section 29 of S.B. 90 modified this statute to prohibit “engaging in any activity with the intent to influence or effect of influencing a voter” within 150 feet of a polling location or drop box.[48]

 

The plain language of Section 29 of S.B. 90 still permits Good Samaritans, family members, caregivers, volunteers, or election workers to provide non-partisan assistance to voters within the 150-foot limit.  The amendment also specifically authorizes election officials to provide items to voters in need.  The only persons prohibited from doing so are those who intend to influence voters.  Even with this expanded solicitation prohibition, Florida’s electioneering prohibitions still mirror the majority of states that preclude the influencing of voters within a certain zone near the ballot booth.

 

Conclusion

 

Allegations that these provisions of Florida’s S.B. 90 place an unconstitutional burden on the fundamental right to vote implies that the standard rules in an overwhelming number of states that implement similar provisions are invalid as well.  Florida’s recent reforms may put the state in the minority in terms of permitting the use of drop boxes, but Florida policies to limit ballot harvesting, to place regulations on third-party voter registration organizations, to provide reasonable options for voters to prove their identity, and to combat high-pressure electioneering near ballot booths are well within the mainstream.  Even if some of these reforms go farther than other states with similar laws, some are more lenient.  Ultimately, these reforms manifest Florida’s efforts to maintain voter access while safeguarding fairness and honesty in elections.  Ultimately, Florida’s reforms are neither new nor unique; they are commonplace election safeguards that have been enacted and upheld for years across the country that seek to meaningfully protect voter participation while safeguarding election integrity.

 

https://lawyersdemocracyfund.org/wp-content/uploads/2022/04/Florida-New-Voting-Law-–-Fact-Sheet.pdf

 

 

Last Updated Apr. 8, 2022

 


[1] See Senate Bill 90, Chpt. 2021-11, Laws of Fla. (2021), available at: http://laws.flrules.org/2021/11.

[2] U.S. Const. art. I, § 4, cl 1.

[3] League of Women Voters of Florida v. Lee, Compl. at 38 (May 6, 2021), available at: https://www.democracydocket.com/wp-content/uploads/sites/45/2021/05/Florida-Filed-Complaint-1.pdf.

[4] Ballot Drop Box Definitions, Design Features, Location and Number, NCSL (Feb. 14, 2022), available at: https://www.nc
sl.org/research/elections-and-campaigns/vopp-table-9-ballot-drop-box-definitions-design-features-location-and-number.aspx
.

[5] See id.

[6] Changes to election dates, procedures, and administration in response to the coronavirus (COVID-19) pandemic, Ballotpedia (Nov. 19, 2020), available at: https://ballotpedia.org/Changes_to_election_dates,_procedures,_and_administration_in_response
_to_the_coronavirus_(COVID-19)_pandemic,_2020
.

[7] Voting Outside the Polling Place: Absentee, All-Mail and other Voting at Home Options, NCSL (Mar. 15, 2022), available at:

https://www.ncsl.org/research/elections-and-campaigns/absentee-and-early-voting.aspx

[8] Ballot Drop Box Definitions, Design Features, Location and Number (Feb. 14, 2022).

[9] Chpt. 2019-162, Laws of Fla. (2019), available at: http://laws.flrules.org/2019/162

[10] Id. at 22.

[11] Chpt. 2021-11, Laws of Fla. at 2 (2021).

[12] Id. at 24.

[13] Id.

[14] Id.

[15] Id.

[16] Florida NAACP v. Lee, Compl. at 51 (May 6, 2021), available at: https://www.democracydocket.com/wp-content/uploads/
sites/45/2021/05/Florida-Voting-Law-Complaint-1.pdf
.

[17] Voting Outside the Polling Place: Absentee, All-Mail and other Voting at Home Options (Feb. 17, 2022).  See also Table 10: Ballot Collection Laws, NCSL (Jan. 6, 2022), available at: https://www.ncsl.org/research/elections-and-campaigns/vopp-table-10-who-can-collect-and-return-an-absentee-ballot-other-than-the-voter.aspx.

[18] Id.  

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] Chpt. 2021-11, Laws of Fla. at 27 (2021).

[24] Id.

[25] Id.

[26] Brnovich v. Democratic National Committee, 19-1257, 2021 WL 2690267 (U.S. July 1, 2021), available at: https://www.supremecourt.gov/opinions/20pdf/19-1257_g204.pdf.

[27] Id.

[28] See id.

[29] Florida NAACP, Compl. at 28.

[30] See How States Verify Absentee Ballot Applications, NCSL (Mar. 15, 2022), available at: https://www.ncsl.org/research/elections-and-campaigns/vopp-table-8-how-states-verify-absentee-ballot-applications.aspx.  Only three states (Alaska, North Dakota, and Vermont) have no verification procedures in place for absentee ballot applications.

[31] Voting Outside the Polling Place: Absentee, All-Mail and other Voting at Home Options (Mar. 15, 2022).

[32] Id.

[33] See id. Alabama, Kentucky, South Dakota, and Wisconsin require voters to include a copy of their ID with their application.  Mississippi requires voters to have their requests notarized.  South Carolina requires voters to sign an oath. 

[34] Chpt. 2021-11, Laws of Fla. at 18 (2021).

[35] Id.

[36] Florida NAACP, Compl. at 28-29.

[37] States With Permanent Absentee Voting for All Voters, Voters With Permanent Disabilities and/or Senior Voters, NCSL (Apr. 27, 2021), available at: https://www.ncsl.org/research/elections-and-campaigns/vopp-table-3-states-with-permanent-absentee-voting-for-all-voters-voters-with-permanent-disabilities-and-or-senior-voters.aspx.  See also Voting Outside the Polling Place: Absentee, All-Mail and other Voting at Home Options (Mar. 15, 2022).

[38] See id. Excluding states that conduct their elections entirely by mail, the only states that permit voters to remain on a permanent mail voting list are Arizona, Maryland, Montana, Minnesota, New Jersey, and Virginia.

[39] See Voting Outside the Polling Place: Absentee, All-Mail and other Voting at Home Options (Mar. 15, 2022).  North Dakota, Oklahoma, and South Dakota allow a request for a mail ballot to remain in effect through the calendar year.

[40] Chpt. 2021-11, Laws of Fla. at 18 (2021).

[41] Id.

[42] Florida NAACP, Compl. at 40.

[43] Electioneering Prohibitions, NCSL (Apr. 1, 2021), available at: https://www.ncsl.org/research/elections-and-campaigns/electioneering.aspx.

[44] Id.

[45] Id.

[46] Id.

[47] Chpt. 2021-11, Laws of Fla. at 24-25 (2021).

[48] Id.