Travis Crum: “Bailing in the Sunshine State”

The following is a guest post from Travis Crum:

Bail-in is back in the news. In a behemoth 288-page decision in League of Women Voters of Florida v. Lee, a federal district court found that Florida intentionally discriminated against Black voters when it enacted SB 90, a 2021 bill that placed restrictions on third-party voter registration organizations, the use of drop boxes, and line-warming activities, such as providing food and water in a non-partisan fashion. That ruling alone is remarkable given how reluctant courts are to find discriminatory intent. But Chief Judge Mark Walker went farther and imposed “bail-in” relief.

For those unfamiliar with bail-in, Section 3(c) of the Voting Rights Act authorizes federal courts to place States and political subdivisions under preclearance for violations of the Fourteenth and Fifteenth Amendments. As I have argued since before Shelby County invalidated the VRA’s coverage formula, Section 3(c) provides a court-centric and constitutional approach to re-imposing federal oversight of State and local voting changes. Here’s a few key takeaways from the opinion and some thoughts on what’s to come:

  1. The Discriminatory Intent Finding. The court spends nearly 100 pages canvassing SB 90’s enactment and Florida’s history of racial discrimination in voting. In particular, the court showed how the Big Lie infected the legislative process and that SB 90 was “inten[ded] to restructure Florida’s election system in a way that favor[s] the Republican Party over the Democratic Party.” Moreover, the above-referenced provisions of SB 90 were enacted “to target Black voters because of their propensity to favor Democratic candidates.” Thus, the court’s approach strongly resembles the North Carolina voter-suppression case, where discriminatory intent was found because the legislature specifically targeted Black Democrats’ access to the ballot.
  2. The Bail-in Standard. We now have the most thorough and assertive explication of bail-in in the post-Shelby County era. Relying on the Jeffers factors developed in the Arkansas bail-in, the court concluded that bail-in is appropriate because of Florida’s recent and repeated violations and because it would prevent future violations that Florida would likely commit. In addition, the court drew on South Carolina v. Katzenbach’s endorsement of preclearance over case-by-case litigation in situations where litigation has proved costly and time-intensive and when the jurisdiction has shown a willingness to change tactics. Indeed, the court pointed to SB 524—a bill that recently passed the Florida legislature and currently awaits Governor DeSantis’s signature—as evidence that Florida wants to play a game of whack-a-mole. As the court noted, SB 524 “repeal[s] some of SB 90’s most obviously unconstitutional provisions and introduce[s] new regulations on the franchise.” This type of animus laundering has proven successful in the past, and bail-in was intended to be a prophylactic against such conduct.
  3. Targeted Bail-in That Sunsets. The court crafted its relief to the constitutional evil at hand. Specifically, the court ordered preclearance solely for laws that are tainted by SB 90: namely, regulations on third-party voter registration organizations, drop boxes, and line-warming activities. Thus, SB 524 would have to be precleared, but this order does not apply to the congressional redistricting plan that Florida must still pass. The court limited its relief to ten years, which is common in bail-in suits. Florida is therefore required to preclear a far smaller number of laws for a shorter period of time than under the old preclearance regime.
  4.  Florida’s Counterarguments. The court observed that the parties briefly addressed the bail-in issue. The plaintiffs’ arguments merited only five pages of straight-forward reasons why bail-in is appropriate. For its part, Florida merely noted that bail-in was triggered only if there was intentional discrimination, which, it asserted, had not occurred. Florida put forward no argument that it did not statutorily qualify for bail-in if the predicate invidious intent were to be found. To be sure, Florida included the following footnote in its brief, which I quote here in full: “This assumes that Section 3(c) is a constitutional delegation of authority to the judiciary. There are significant federalism and dual sovereignty concerns that arise under Section 3(c). Section 3(c) also appears to be an improper delegation of authority under Article I, § 4 of the U.S. Constitution.” This does not an argument make. Under rules of waiver, a footnote is oftentimes insufficient to preserve an argument. To the extent this is an argument, it’s a curious one.

Florida appears to be gesturing to a non-delegation argument in the vein of Schechter Poultry. But the VRA is no sick chicken. Congress clearly authorized courts to impose preclearance following a violation of the Fourteenth or Fifteenth Amendment—a standard that easily satisfies the intelligible principle standard. Furthermore, bail-in resembles the type of equitable oversight for constitutional violations that courts have long practiced, with the school desegregation cases being the most prominent example.

Relatedly, Florida claimed that Section 3(c) may somehow be an unconstitutional delegation under the Elections Clause. This argument confuses the independent state legislature theory with Congress’s power to preempt state laws under that clause. The ISL theory concerns whether state statutes and constitutions can re-allocate power to other branches of the state government. Here, by contrast, Congress has stepped in to impose oversight. And it is on this point that Chief Judge Walker engaged with Florida’s argument. The court noted that the Elections Clause grants Congress broad power to preempt state laws. That’s true—but only for federal elections and SB 90 applies to federal and state elections. This, then, brings me to the last glimmer of an argument made by Florida.

Florida also mentioned “federalism and dual sovereignty” concerns that are more akin to the usual arguments against preclearance. Here, one should keep in mind that even Texas has—not once but twice—lacked the chutzpah to argue that Section 3(c) is facially unconstitutional. For reasons why bail-in is a constitutional exercise of Congress’s Reconstruction Amendment enforcement authority, see here and here.

4.        Florida Exceptionalism. This is the first time since Shelby County that a court has ordered bail-in of a State, as opposed to a county or city. But it was not the first attempt. As I’ve canvassed elsewhere, a friendly panel of the Fourth Circuit balked at bailing-in North Carolina after finding that its voter-suppression law was enacted with discriminatory intent, thereby averting a showdown with the Supreme Court over Section 3(c). Likewise, the three-judge district court in the 2010 Texas redistricting saga pointed to the perceived hostility of the Roberts Court to preclearance. By contrast, the Fifth Circuit let Texas off scot-free for its racially discriminatory voter ID law after it enacted a slightly more expansive version while under the threat of litigation.

Bail-in was clearly warranted in those cases. So what makes this one different? Although the opinion is measured and deliberate in its imposition of bail-in, it is striking for its unabashed defense of democracy and racial equality in its introduction and conclusion. Indeed, in an era where we too often see “virtue” signaling from conservative judges auditioning for promotions with snark and the endorsement of previously off-the-wall arguments, it is in many ways refreshing to see a judge go to bat for the right to vote. But this also comes with risks in the inevitable appeal.

5.         What Comes Next. Florida will find a far more receptive audience on appeal. The more interesting question is not if—but how—this decision gets reversed. I agree with Nick Stephanopoulos’s view that the discriminatory intent finding will likely be rejected by the Eleventh Circuit and/or the Supreme Court. Although that factual finding should be protected by the clear-error standard, that impediment has not stopped courts in the past. Moreover, the Court’s recent decision in Brnovich shows that it is still willing to accept anti-fraud rationales for laws notwithstanding their undeniable partisan and racial valence. And if that’s the case, then we may yet again see the Supreme Court avoid opining on Section 3(c).

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