League of Women Voters of Florida Inc. v. Florida Secretary of State

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11143
____________________
LEAGUE OF WOMEN VOTERS OF FLORIDA INC., et al.,
Plaintiffs-Appellees,
versus
FLORIDA SECRETARY OF STATE, et al.,
Defendants-Appellants.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 4:21-cv-00186-MW-MAF
____________________
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2 Opinion of the Court 22-11143
Before WILLIAM PRYOR, Chief Judge, and JILL PRYOR and GRANT,
Circuit Judges.
WILLIAM PRYOR, Chief Judge:
This appeal involves four recently enacted provisions of
Florida’s election law, including provisions that regulate ballot
drop boxes, the solicitation of voters at the polls, and the delivery
of voter-registration forms by third-party voter-registration organ-
izations. Several plaintiff organizations sued the Florida Secretary
of State, the Florida Attorney General, and several Supervisors of
Elections. After a bench trial, the district court enjoined three pro-
visions because it found they were adopted with the intent to dis-
criminate against black voters in violation of the Fourteenth and
Fifteenth Amendments as well as section 2 of the Voting Rights
Act. And it imposed a preclearance requirement under section 3(c)
of the Act. The district court also ruled that the solicitation provi-
sion was unconstitutionally vague and overbroad in violation of
the First and Fourteenth Amendments. Finally, it enjoined a provi-
sion that required third-party voter-registration organizations to
provide a disclaimer to voters who use their services to register to
vote, but all parties agree that any appeal of the judgment as to that
provision has been rendered moot by the repeal of the provision.
Because we hold that the findings of intentional racial discrimina-
tion rest on both legal errors and clearly erroneous findings of fact
and that only part of the solicitation provision is unconstitutional,
we reverse in part, affirm in part, vacate in part, and remand.
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I. BACKGROUND
In recent decades, the Florida Legislature has amended the
election code to make voting more convenient for eligible voters.
In 1980, most voters had to cast their ballots in person at their local
precincts. Voters could cast an absentee ballot only for one of six
reasons: inability to vote in person without assistance, absence
from the county on election day, service as an election official in a
different precinct, religious observance, change of residency within
the state too late to register at the new address, or change of resi-
dency outside the state if the voter is unable to vote under the laws
of the new state. FLA. STAT. § 101.64 (1980). State law required the
voter to attest that he or she qualified to vote absentee, and the
attestation had to be notarized or witnessed by two adults. Id. Since
then, much has changed. By 2001, Florida no longer required any
excuse to vote absentee. Ch. 2001-40, § 53, Laws of Fla. In 2004, the
state eliminated the requirement that absentee ballots be wit-
nessed. Ch. 2004-232, § 1, Laws of Fla. Also in 2004, Florida began
allowing no-excuse early voting. Ch. 2004-252, § 13, Laws of Fla.
Most recently, the state required that ballot drop boxes be made
available in every county. Ch. 2019-162, § 20, Laws of Fla.
As the Legislature has expanded opportunities for voting,
the State of Florida has also become more racially and ethnically
diverse. In 1980, the projected voting-age population was about 88
percent white and 12 percent black. BUREAU OF THE CENSUS, U.S.
DEP’T OF COM., PROJECTIONS OF THE POPULATION OF VOTING AGE
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4 Opinion of the Court 22-11143
FOR STATES: NOVEMBER 1980, at 6 (1980). About 6 percent of the
voting-age population was of “Spanish origin” based on the previ-
ous 1970 census. Id. at 7. According to the organizations’ expert,
Mr. Cooper, white voters in 2019 made up about 78 percent of the
citizen voting-age population, and black voters made up 15 per-
cent. Hispanic or Latino voters constituted about 21 percent of the
citizen voting-age population.
Florida’s election code continues to evolve. In the regular
session immediately following the 2020 election, the Florida Legis-
lature adopted Senate Bill 90. According to the district court, the
new law “made a sweeping set of changes to Florida’s election
code, with a specific focus on [vote-by-mail]” procedures. The bill
incorporated input from a wide array of stakeholders. The county
supervisors of elections, through their trade organization, influ-
enced the final version. In fact, their lobbyist testified that “proba-
bly 80 percent of the provisions . . . have a tweak that [was] [the
supervisors’] suggestion[] on how to operate.”
S.B. 90 was a substantively wide-ranging bill. The enrolled
version spanned 48 pages and addressed various topics, including
procedures for challenging a provision of the election code, testing
protocols for the online voter-registration system, live turnout data
reports, guidelines for the duplication of damaged vote-by-mail bal-
lots, and rules for the inspection of ballot materials. See generally
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S.B. 90, 123d Leg. Sess. (Fla. 2021). Only a subset of its provisions
was challenged in this action.
The district court enjoined four provisions. First, the district
court enjoined enforcement of the drop-box provision. Florida law
allows voters who request vote-by-mail ballots to return those bal-
lots at secure intake stations, colloquially known as drop boxes.
The drop-box provision requires that “secure ballot intake sta-
tion[s]” be “monitored in person by an employee of the supervi-
sor’s office”; limits the hours of drop-box availability to early voting
hours, except for drop boxes located “at an office of the [county]
supervisor [of elections]”; and establishes a $25,000 civil penalty
against the supervisor “[i]f any secure ballot intake station is left
accessible for ballot receipt other than as authorized by this sec-
tion.” FLA. STAT. § 101.69(2)–(3). Second, the district court enjoined
enforcement of the solicitation provision, which prohibits any
“person, political committee, or other group or organization” from
“solicit[ing] voters inside the polling place or within 150 feet of a
secure ballot intake station or the entrance to any polling place” or
other voting location. Id. § 102.031(4)(a). It defines “solicit” and “so-
licitation” to include, among other things, “engaging in any activity
with the intent to influence or effect of influencing a voter.” Id.
§ 102.031(4)(b). Third, the district court enjoined enforcement of
the registration-delivery provision. Florida law allows third-party
voter-registration organizations to collect voter-registration forms
and deliver them to election officials. The registration-delivery pro-
vision requires that the organization “promptly deliver[]” the
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registration forms “to the division or the supervisor of elections in
the county in which the applicant resides within 14 days after the
application was completed by the applicant, but not after registra-
tion closes for the next ensuing election.” Id. § 97.0575(3)(a). Fi-
nally, the district court enjoined enforcement of the now-repealed
registration-disclaimer provision, which required that a third-party
voter-registration organization “notify the applicant at the time the
application is collected that the organization might not deliver the
application . . . in less than 14 days or before registration closes for
the next ensuing election,” “advise the applicant that he or she may
deliver the application in person or by mail,” and “inform the ap-
plicant how to register online with the [Division of Elections] and
how to determine whether the application has been delivered.” Id.
§ 97.0575(3)(a), repealed by Ch. 2022-73, § 7, Laws of Fla.
Four sets of organizations challenged these and other provi-
sions of S.B. 90 in four cases, which were consolidated at trial and
on appeal. The district court identified the four actions by their lead
plaintiffs: the Florida State Conference of Branches and Youth
Units of the NAACP, Florida Rising Together, the League of
Women Voters of Florida, and the Harriet Tubman Freedom
Fighters. The defendants included the Secretary of State, the Attor-
ney General, and several Supervisors of Elections. The Republican
National Committee and the National Republican Senatorial Com-
mittee intervened as defendants.
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After a bench trial, the district court determined that four of
S.B. 90’s challenged provisions violated the Constitution and the
Voting Rights Act. It found that the drop-box provision, the regis-
tration-delivery provision, and the solicitation provision all vio-
lated the Equal Protection Clause of the Fourteenth Amendment
and abridged the right to vote on the basis of race in violation of
the Fifteenth Amendment. The district court determined that alt-
hough the Legislature did not intend to discriminate against Latino
voters, the Legislature did intend to discriminate against black vot-
ers. It also determined that the challenged provisions violated sec-
tion 2 of the Voting Rights Act. The district court permanently en-
joined the enforcement of the three provisions. It determined that
the solicitation provision was impermissibly vague in violation of
the Fourteenth Amendment and overbroad in violation of the First
Amendment. And it permanently enjoined enforcement of the so-
licitation provision on that basis, as well. The district court deter-
mined that the registration-disclaimer provision violated the First
Amendment by compelling speech and permanently enjoined its
enforcement. The district court also subjected the State of Florida
to limited preclearance for ten years under section 3(c) of the Vot-
ing Rights Act. See 52 U.S.C. § 10302(c).
The district court also rejected some of the organizations’
claims and declined to reach others. For example, it determined
that two provisions that “reduce[d] the duration of a voter’s [vote-
by-mail] ballot request” and required certain identifying infor-
mation in a vote-by-mail ballot request were not unconstitutional
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8 Opinion of the Court 22-11143
and did not violate the Voting Rights Act. It rejected a challenge to
the drop-box provision, the solicitation provision, and the vote-by-
mail request provision under the Americans with Disabilities Act.
The district court declined to reach the question whether the drop-
box, solicitation, and registration-delivery provisions unduly bur-
den the right to vote, without respect to race, under the First and
Fourteenth Amendments. And it rejected the argument that the
vote-by-mail provisions did so. It also declined to reach Florida Ris-
ing Together’s claim that the registration-delivery provision vio-
lated the First Amendment as applied to its voter-registration activ-
ities and the Harriet Tubman Freedom Fighters’ claim that certain
penalties in the registration-disclaimer provision were unconstitu-
tionally vague.
After the filing of this appeal, the Legislature repealed the
registration-disclaimer provision. See Ch. 2022-73, § 7, Laws of Fla.
The parties agree that any appeal of the judgment respecting the
constitutionality of this provision is moot. The state officials and
Republican intervenors contend that the judgment as to this provi-
sion should be vacated, but the organizations oppose vacatur.
We stayed the judgment pending appeal. League of Women
Voters of Fla., Inc. v. Fla. Sec’y of State, 32 F.4th 1363, 1369 (11th
Cir. 2022). Our analysis was strongly influenced by the Purcell prin-
ciple, which cautions district courts against “enjoin[ing] state elec-
tion laws in the period close to an election” and encourages appel-
late courts to stay such injunctions. Id. at 1371 (quoting Merrill v.
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Milligan, 142 S. Ct. 879, 879 (2022) (Kavanaugh, J., concurring)); see
also Purcell v. Gonzalez, 549 U.S. 1 (2006). We now address the
merits.
II. STANDARD OF REVIEW
In reviewing a judgment following a bench trial, we review
de novo both conclusions of law and the application of the law to
the facts. U.S. Commodity Futures Trading Comm’n v. S. Tr. Met-
als, Inc., 894 F.3d 1313, 1322 (11th Cir. 2018). And we review find-
ings of fact for clear error. Id. “We will not find clear error unless
our review of the record leaves us with the definite and firm con-
viction that a mistake has been committed.” Id. (citation and inter-
nal quotation marks omitted).
III. DISCUSSION
We divide our discussion into six parts. First, we explain that
the drop-box, solicitation, and registration-delivery provisions do
not violate the Fourteenth or Fifteenth Amendment to the Consti-
tution. Second, we explain that those provisions also do not violate
section 2 of the Voting Rights Act. Third, we hold that the district
court erred in subjecting Florida to preclearance under section 3 of
the Voting Rights Act. Fourth, we explain that the solicitation pro-
vision is, in part, unconstitutionally vague. Fifth, we vacate the
judgment against the now-repealed registration-disclaimer provi-
sion. Finally, we remand the case for the district court to determine
whether the drop-box and registration-delivery provisions unduly
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10 Opinion of the Court 22-11143
burden the right to vote under the First and Fourteenth Amend-
ments.
A. The Drop-Box, Solicitation, and Registration-Delivery Provi-
sions Do Not Violate the Fourteenth or Fifteenth Amendment.
We review an alleged violation of equal-protection rights
under the Fourteenth Amendment or an alleged denial or abridg-
ment on account of race of the right to vote under the Fifteenth
Amendment using a two-step burden-shifting test. Greater Bir-
mingham Ministries v. Sec’y of State for the State of Ala., 992 F.3d
1299, 1321 (11th Cir. 2021). First, the plaintiffs must prove both that
the law will have a discriminatory impact and that it was adopted
with discriminatory intent. Id. Second, “the burden shifts to the
law’s defenders to demonstrate that the law would have been en-
acted without this racial discrimination factor.” Id. (quoting
Hunter v. Underwood, 471 U.S. 222, 228 (1985)) (alteration
adopted).
In determining whether a “law has both a discriminatory in-
tent and effect,” we rely on the guidance in Village of Arlington
Heights v. Metropolitan Housing Development Corp., 429 U.S.
252 (1977). See Greater Birmingham, 992 F.3d at 1321. Arlington
Heights and later caselaw require considering several factors about
the law and its adoption:
(1) the impact of the challenged law; (2) the historical
background; (3) the specific sequence of events lead-
ing up to its passage; (4) procedural and substantive
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departures; . . . (5) the contemporary statements and
actions of key legislators[;] . . . (6) the foreseeability of
the disparate impact; (7) knowledge of that impact[;]
and (8) the availability of less discriminatory alterna-
tives.
Id. at 1321–22. We review these factors in the same order as the
district court addressed them, and our review establishes that the
district court committed reversible error.
1. Historical Background
The district court delved deep into Florida’s past. It began
with an overview of racist voting laws enacted after the Civil War
and discrimination enduring into the twentieth century. It then dis-
cussed twenty-first century examples of allegedly racially moti-
vated voter-roll “purges” and changes to Florida voting laws. In
some of the cases that the district court cited, federal courts ruled
that these laws were not racially motivated, and in others the
courts never reached the question.
In none of the cases from this century cited by the district
court did a court determine that a challenged Florida election law
resulted from intentional discrimination. But the district court was
persuaded otherwise. “Once is an accident, twice is a coincidence,
[and] three times is a pattern,” it wrote. “At some point, when the
Florida Legislature passes law after law disproportionately burden-
ing Black voters, this Court can no longer accept that the effect is
incidental.” The district court found that Florida’s “long history of
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racial discrimination against Black . . . Floridians” “informs its pre-
sent.”
The district court also discussed “socioeconomic disparities
. . . between racial groups.” It framed such disparities as “the stark
results of a political system that, for well over a century, has
overrepresented White Floridians and underrepresented Black . . .
Floridians.” The organizations contend that such statistics serve as
“evidence of ‘the lingering effects of past discrimination.’” (Quot-
ing Rogers v. Lodge, 458 U.S. 613, 626 (1982)).
From the start, the district court erred. As we have ex-
plained, a federal court must remain “mindful of the danger of al-
lowing the old, outdated intentions of previous generations to taint
[Florida]’s legislative action forevermore on certain topics.”
Greater Birmingham, 992 F.3d at 1325. We have rejected the argu-
ment that “a racist past is evidence of current intent.” Id.; see also
City of Mobile v. Bolden, 446 U.S. 55, 74 (1980) (plurality opinion)
(“[P]ast discrimination cannot, in the manner of original sin, con-
demn governmental action that is not itself unlawful.”), superseded
in part by statute, Voting Rights Act Amendments of 1982, Pub. L.
No. 97-205, 96 Stat. 131, as recognized in Thornburg v. Gingles, 478
U.S. 30, 43–44 (1986). Instead, we have explained that “the princi-
ples of equal sovereignty counsel[] against . . . disparate treatment
of” a state based on its history “and guide[] us to look at the precise
circumstances surrounding the passing of the” law in question.
Greater Birmingham, 992 F.3d at 1325 (citing Shelby Cnty. v.
Holder, 570 U.S. 529, 553 (2013)). And we apply “the presumption
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of legislative good faith” even in the light of “a finding of past dis-
crimination.” Id. (quoting Abbott v. Perez, 138 S. Ct. 2305, 2324
(2018)). The district court did not heed our precedent explaining
the proper scope of a historical inquiry.
The organizations maintain in their briefs that a state’s his-
tory of discrimination and socioeconomic disparities are relevant
to an analysis of discriminatory intent. (Citing Rogers, 458 U.S. at
624–26; United States v. Marengo Cnty. Comm’n, 731 F.2d 1546,
1567–68 (11th Cir. 1984)). But we have read the Arlington Heights
factor at issue “not [to] provid[e] an unlimited look-back to past
discrimination.” Greater Birmingham, 992 F.3d at 1325 (citing Ar-
lington Heights, 429 U.S. at 267). Evidence of historical discrimina-
tion imported through socioeconomic data is no exception. And
under our precedent, this history cannot support a finding of dis-
criminatory intent in this case.
Florida’s more recent history does not support a finding of
discriminatory intent. The only pieces of legislation cited by the
district court that were adopted since the year 2000 offer no sup-
port for its finding of discriminatory intent. For instance, the dis-
trict court discussed H.B. 1355, a law adopted in 2011 that reduced
early-voting days. The District Court for the District of Columbia
declined to preclear the law because the State did not establish that
the law would have a “nonretrogressive effect,” but it did not reach
the question whether H.B. 1355 was adopted with discriminatory
intent. See Florida v. United States, 885 F. Supp. 2d 299, 337, 351
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(D.D.C. 2012). The District Court for the Middle District of Florida
determined that plaintiffs who sought to enjoin the same bill “failed
to demonstrate a substantial likelihood of success on their claim
that” the bill was adopted with discriminatory intent, Brown v.
Detzner, 895 F. Supp. 2d 1236, 1239, 1249 (M.D. Fla. 2012), and the
District Court for the Northern District of Florida enjoined differ-
ent provisions on other grounds, see League of Women Voters of
Fla. v. Browning, 863 F. Supp. 2d 1155, 1157–58 (N.D. Fla. 2012).
In the end, the Legislature “restored the pre-2011 early voting
hours,” which the organizations’ expert Dr. Austin described as “a
sign of something positive.” Likewise, a 2019 law required felons
to pay any financial obligations arising from their sentences before
Florida restored their voting rights, and the District Court for the
Northern District of Florida determined that the bill was “not mo-
tivated by race.” Jones v. DeSantis, 462 F. Supp. 3d 1196, 1238 (N.D.
Fla. 2020), rev’d on other grounds sub nom. Jones v. Governor of
Fla., 975 F.3d 1016 (11th Cir. 2020) (en banc). Voter roll “purges,”
which the district court also referenced to support its finding of dis-
criminatory intent, are not conducted by the Legislature, and a
challenged 2001 law that authorized a new procedure for identify-
ing felons ineligible to vote was repealed before any court reached
judgment.
Finally, the district court discussed the close relationship be-
tween racial identification and political affiliation among Floridi-
ans. According to the district court, “for White and Black voters in
Florida, separating race from politics only works in science fiction.”
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But the Supreme Court has warned against conflating discrimina-
tion on the basis of party affiliation with discrimination on the basis
of race. See Brnovich v. Democratic Nat’l Comm., 141 S. Ct. 2321,
2349 (2021) (“[P]artisan motives are not the same as racial mo-
tives.”). To be sure, as the organizations point out, “[i]ntentionally
targeting a particular race’s access to the franchise because its
members vote for a particular party” is impermissible. (Quoting
N.C. State Conf. of the NAACP v. McCrory, 831 F.3d 204, 222 (4th
Cir. 2016)). But we must be careful not to infer that racial targeting
is, in fact, occurring based solely on evidence of partisanship. Evi-
dence of race-based discrimination is necessary to establish a con-
stitutional violation.
2. Specific Sequence of Events Leading up to Passage
Next, the district court reviewed the events leading up to the
passage of S.B. 90. It considered minority voters’ increased use of
vote-by-mail ballots, some of which are deposited in drop boxes, in
the 2020 election. It examined, and was unconvinced by, the prof-
fered justifications for S.B. 90’s reforms.
The district court summarized recent changes in the de-
mographics of vote-by-mail voters. Historically, white and Latino
voters were more likely than black voters to use vote by mail. In
2020, amid the COVID-19 pandemic, voters across the demo-
graphic spectrum relied more heavily on vote by mail. Compared
with the rate of use from 2014 to 2020, white voters’ use of vote by
mail in 2020 increased from just over 30 percent to about 45
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16 Opinion of the Court 22-11143
percent, and black voters’ use increased from about 20 percent to
about 40 percent. Republican voters’ use of vote by mail minimally
increased from 40 percent to 42 percent, while Democratic voters’
use increased from 35.5 percent to 61 percent. The district court
presented these statistics to suggest that black voters’ increased re-
liance on vote by mail prompted the election reforms.
At most, the statistics suggest that Democratic voters’ in-
creased use may have been a motivating factor. In 2020, Florida
Democrats relied on vote by mail more than Florida Republicans;
but by the district court’s own account of the statistics, Florida
black voters relied on vote by mail less than Florida white voters.
Once again, partisan discrimination must not be conflated with ra-
cial discrimination. See Brnovich, 141 S. Ct. at 2349.
The district court then reviewed the sponsors’ and support-
ers’ proffered justifications for the enactment of S.B. 90. It stated
that “the exact justification for SB 90 as a whole, and for its constit-
uent parts, is difficult to pin down, with sponsors and supporters
offering conflicting or nonsensical rationales.” But that difficulty is
to be expected when examining the subjective intent of a multi-
member body. Cf. Wis. Pub. Intervenor v. Mortier, 501 U.S. 597,
620 (1991) (Scalia, J., concurring in judgment) (explaining that com-
mittee reports “do[] not necessarily say anything about what Con-
gress as a whole thought”).
The district court expressed skepticism of the supporters’
professed motivation: preventing voter fraud. It cited high voter
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confidence in Florida’s 2020 election and the fact that the Legisla-
ture did not amend the law when voter fraud was alleged in 2018.
The district court found a lack of “evidence before the Legislature
that fraud is even a marginal issue in Florida elections.” The organ-
izations agree, describing S.B. 90 as “the proverbial solution in
search of a problem,” which “support[s] the inference that the true
purpose of the bill was impermissible discrimination.”
This analysis is flawed for three reasons. First, our precedent
does not require evidence of voter fraud to justify adopting legisla-
tion that aims to prevent fraud. Second, even if it did, the record
establishes that fraud, including vote-by-mail fraud, has plagued
Florida elections in the past. Third, the record establishes that sup-
porters of S.B. 90 sought to prevent the type of fraud that had been
observed in Florida and other jurisdictions through this legislation.
First, the district court’s reasoning—implicitly requiring ev-
idence of voter fraud in Florida to justify prophylactic measures—
does not follow our precedents. “[T]he Supreme Court has already
held that deterring voter fraud is a legitimate policy on which to
enact an election law, even in the absence of any record evidence
of voter fraud.” Greater Birmingham, 992 F.3d at 1334. For exam-
ple, the Supreme Court has explained that even though a “record
contain[ed] no evidence of any such fraud actually occurring in [a
particular state] at any time,” “flagrant examples of such fraud in
other parts of the country” can help “demonstrate that not only is
the risk of voter fraud real but that it could affect the outcome of a
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close election.” Crawford v. Marion Cnty. Election Bd., 553 U.S.
181, 194–96 (2008) (plurality opinion); see also Brnovich, 141 S. Ct.
at 2348 (holding, in a Voting Rights Act analysis, that “it should go
without saying that a State may take action to prevent election
fraud without waiting for it to occur and be detected within its own
borders”). Even if there were no evidence of voter fraud in Florida,
our precedents would not require it before a bill like S.B. 90 could
be adopted.
Second, the record includes undisputed evidence of fraud—
including vote-by-mail fraud in Florida—in any event. Dr. Moreno,
an expert for the state officials and Republican Party intervenors,
detailed in his report several instances of fraud that had occurred in
Florida since the 1990s. For example, in 1993, a judge ordered a
new mayoral election in the City of Hialeah because of pervasive
absentee-ballot fraud. In a 1997 Miami mayoral race, a court “threw
out all the absentee ballots cast in the election,” which reversed the
election’s outcome. In 2013, a congressional chief of staff “went to
jail after being implicated in a sophisticated scheme to manipulate
the previous year’s primary elections by submitting hundreds of
fraudulent absentee-ballot requests.”
Dr. Moreno also collected examples of smaller-scale viola-
tions that occurred in more recent elections: a “ballot broker” who
pleaded guilty to absentee-ballot fraud charges after she allegedly
exploited hundreds of elderly Hispanic voters; an election worker
who pleaded guilty to marking some of the vote-by-mail ballots she
opened; and a Miami Commission candidate who allegedly
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harassed and pressured elderly voters in a public housing complex,
among other incidents. When convictions had been obtained, it
was not within the district court’s discretion to question whether
these instances of fraud took place. Cf. Emich Motors Corp. v. Gen.
Motors Corp., 340 U.S. 558, 569 (1951); In re Raiford, 695 F.2d 521,
523 (11th Cir. 1983). In fact, absentee voter fraud was an issue of
such concern in Miami-Dade County that in 2012 the State Attor-
ney’s Office convened a grand jury to address the problem. See
FINAL REPORT OF THE MIAMI-DADE COUNTY GRAND JURY, IN
CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT OF FLORIDA,
SPRING TERM 2012. Representative Ingoglia, a sponsor, also dis-
cussed some of these examples on the House floor. To the extent
that the district court purported to find no history of voter fraud in
Florida, it committed clear error.
Even the 2020 election gave rise to allegations of voter fraud.
For instance, Maria Matthews, Director of the Florida Division of
Elections, estimated that her department forwarded “upwards of
75” complaints of election fraud to law enforcement from the 2020
election cycle. The Division would only forward a complaint if it
“found some legal sufficiency to the complaint.” This evidence of
suspected fraud undermines the finding that voter fraud is not a
problem in Florida sufficient to justify legislative action.
Third, the record establishes that the sponsors and support-
ers of S.B. 90 repeatedly asserted that they were motivated by con-
cerns over voter fraud. Contrary to the organizations’ argument on
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20 Opinion of the Court 22-11143
appeal, the purpose of “promot[ing] election integrity” is by no
means a “post-hoc litigation position.” Even one of the organiza-
tions’ experts, Dr. Herron, stated that “the dominant theme artic-
ulated by supporters of SB 90 was election integrity.” Another of
the organizations’ experts, Dr. Burch, agreed. In her words, “[t]he
proponents of this bill were consistent in their messaging about the
need to proactively tighten Florida’s elections,” though she “ques-
tion[ed] their sincerity.” Whether S.B. 90 was the best way to
achieve that policy objective is not for us to decide.
The bill’s sponsors, legislative leaders, and the Governor all
presented a consistent message about the need for election secu-
rity. The sponsors, Representative Blaise Ingoglia and Senator
Dennis Baxley, repeatedly stated that the purpose of S.B. 90 was to
prevent voter fraud. In committee, Representative Ingoglia insisted
that S.B. 90 would “keep our elections safe and secure” and “in-
crease election security without suppressing anybody’s vote.” Sen-
ator Baxley, although he did not “know of widespread complaints,”
asked, “[D]o we have to wait for a debacle? Why can’t we take
something that’s working well and put guardrails on it and keep it
safe so it doesn’t have a debacle[?]” The Governor’s press release,
issued when he signed S.B. 90, quoted the President of the Senate,
the Speaker of the House, and Senator Baxley, all of whom echoed
the message that the purpose of the bill was to proactively ensure
election security and, in Senator Baxley’s words, “make Florida a
place where it is easy to vote and very hard to cheat.” At a public
event introducing the bill, Governor DeSantis reiterated the
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22-11143 Opinion of the Court 21
message: “We need to make sure we stay ahead of the curve. We
need to make sure our citizens have confidence in the elections.”
And Director Matthews testified that the Division of Elections had
received questions from legislators during that session about
“[i]ssues of voter fraud . . . as it relates to a number of areas.”
The organizations offer selected record citations purporting
to prove that S.B. 90’s “sponsors disclaimed that [S.B.] 90 and the
Challenged Provisions were intended to address fraud or election
integrity.” For example, they appear to reference a statement by
Senator Baxley in committee that Florida “had an excellent, excel-
lent conducted election” in 2020. But at the same time, Senator
Baxley also made clear that keeping elections honest mattered:
And now we’re looking at each juncture and saying,
what do we do to reassure for the future that we’ve
put the guardrails on the highway so that no one
runs off? We had a great journey. What can we do to
improve that election security? And that’s what
we’re after.
The other quotations that the organizations cite follow roughly the
same pattern: the speaker acknowledges that the 2020 election ran
smoothly and expresses a desire to ensure security going forward.
Context clarifies the statements that the organizations high-
light in their briefs. To be sure, Senator Baxley stated that address-
ing “vote-by-mail fraud in the last election” was “not the purpose
of our bill.” But his statement does not imply that the legislation
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22 Opinion of the Court 22-11143
was adopted for a reason other than promoting election integrity.
Likewise, although Senator Baxley stated that he was “not trying
to build a case on” “examples of fraudulent ballot gathering or
changing of ballots” in the 2020 election, he also questioned
whether, when third-party organizations gather ballots, “people
[are] fully participating, or are . . . being used in a way that’s inap-
propriate to participation.” According to the organizations, “Rep-
resentative Ingoglia admitted that he saw no issues with election
integrity.” In the statement referenced, Representative Ingoglia re-
sponded to a question about whether the supervisors of elections
had reported issues related to fraud or election integrity. Although
Representative Ingoglia was unaware of problems other than ballot
harvesting, he reiterated that he sought to “mak[e] sure we’re put-
ting [up] the guardrails” and to ensure that “everybody treats, and
uses, and deploys their drop boxes in the same way.” During the
same floor debate, Representative Ingoglia also pointed out that
fraud might be taking place even if it is not detected.
The district court acknowledged—but dismissed—S.B. 90’s
supporters’ “proffered justifications” for each of the challenged
provisions. We now turn to those justifications and the evidence
supporting their credibility, and we review the findings of fact for
clear error.
a. Drop-Box Provision
The district court outlined three proffered justifications for
the drop-box provision: “(1) without more restrictions, people may
tamper with drop boxes”; “(2) the Supervisors were not using drop
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22-11143 Opinion of the Court 23
boxes properly”; “and (3) ‘the provision was necessary to ensure
the chain of custody of the ballot.’” But it rejected the possibility
that these concerns reflected the supporters’ sincere motivations.
First, the district court was skeptical of concerns about drop-
box tampering because it determined that “[n]o evidence was pre-
sented to the Legislature that drop box tampering actually occurs.”
Senator Baxley stated that he had “never made the case that there’s
box tampering.” But at the same time, he elaborated, “I’m not try-
ing to present a case that there’s a problem. I’m[] presenting a case
that we can prevent ever having a problem.”
During the legislative process, Senator Baxley explained the
basis for his concerns respecting unattended drop boxes. He stated
on the Senate floor that “officials say you’d be surprised what all
we find in these drop boxes and what gets dropped in there.” He
likewise asserted on the Senate Floor that he “g[o]t a lot of input
that says people throw all kind of stuff in these boxes” and that,
even though he didn’t have a “name and place[,] . . . [this] is a reg-
ular phenomenon that happens.” In a hearing, he referenced prob-
lems with drop boxes “across the country.” Similarly, in commit-
tee, he stated that “you don’t know what you don’t know because
many of these [drop] boxes were actually in places that no one was
providing security over them or observing what was going on
there.” Senator Baxley’s statements evidence that items other than
ballots can be, and have been, deposited in drop boxes, which sug-
gests that ballots could be damaged or destroyed as a result.
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24 Opinion of the Court 22-11143
The record also establishes that concerns respecting un-
manned drop boxes were valid and were expressed by persons
other than S.B. 90’s sponsors. For example, Director Matthews tes-
tified at trial that drop boxes had been vandalized in other states.
The Lee County Supervisor of Elections testified that he discontin-
ued the use of unmanned, overnight drop boxes in his jurisdiction
because of security concerns. In particular, he became distressed
when he found a drop box so full at the end of a weekend that
“somebody could reach in and grab a ballot.” The Okaloosa
County Supervisor of Elections stated before a legislative commit-
tee that his office did not permit unmanned drop boxes because he
was “concerned that [he] could not protect those ballots” and “if
someone were to sabotage the box, . . . [he] would not be able to
know which voters to contact to correct that.” And the chair of the
House Public Integrity and Elections Committee, Representative
Grall, later reminded the committee members of the concern—
“overwhelmingly from a bipartisan standpoint”—regarding “the
proliferation of drop boxes and the security of those drop boxes”
expressed at the committee’s “workshop” held to review the 2020
election.
The district court stated that the second proffered justifica-
tion for the drop-box provision—that “the Supervisors were not
using drop boxes properly”—had “more merit.” After all, the 2020
election marked the first time that drop boxes were used statewide.
See Ch. 2019-162, § 20, Laws of Fla. Director Matthews testified
that county supervisors were not uniformly following the
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22-11143 Opinion of the Court 25
Department’s guidance about drop boxes. She stated that she “kept
getting questions through emails [and] phone calls” and that “[i]t
was quite apparent that the Supervisors had differing interpreta-
tion[s] of the drop box law and that they needed guidance.” For
example, she explained that some supervisors, contrary to her De-
partment’s guidance, had made drop boxes available outside early
voting hours at locations other than the supervisors’ offices. A sur-
vey of county supervisors also revealed that the times of day at
which drop boxes were available to voters, as well as the supervi-
sors’ approaches to monitoring and emptying drop boxes, varied
considerably. And Representative Ingoglia expressed concern in
committee over the lack of uniformity in drop-box policies.
According to the district court, the third justification for the
drop-box provision—that “the provision was necessary to ensure
the chain of custody of the ballot”—was “nonsensical” because
“[m]ost [vote-by-mail] ballots are still deposited through mail-
boxes.” But that reasoning is itself unsound. It is more than reason-
able to secure one method of delivering a ballot, even if other
methods are used more often. As the state officials argue, drop
boxes may also be more obvious targets than regular mailboxes for
anyone seeking to interfere with an election. Although mailboxes
contain many types of mail, drop boxes should contain only ballots.
And as Representative Ingoglia recognized, state legislators cannot
control federal mailboxes.
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26 Opinion of the Court 22-11143
b. Solicitation Provision
Next, the district court rejected the proffered justifications
for the solicitation provision. It determined that “the justification
appeared to be respect for privacy . . . [o]r perhaps to prohibit po-
litical solicitation.” It expressed skepticism of the latter reason, be-
cause “Florida law already bans solicitation.” But it ignored evi-
dence in the record that existing restrictions were insufficient to
maintain order at the polls.
Director Matthews testified that the Department of State re-
ceived “frequent” “complaints from voters about interference
within the 150-foot nonsolicitation zone in past elections.” For ex-
ample, the Supervisor of Elections for Miami-Dade County testi-
fied that “there’s quite a lot of activity going on” at voting sites,
including “performances,” “food trucks,” and “bullhorns”—such
that the scene can become “quite chaotic at points.” Not all these
disruptive activities would be covered by a narrow definition of so-
licitation, such as one that prohibited only partisan electioneering.
The organizations assert that S.B. 90’s supporters had at
times suggested that the solicitation provision was designed only
to prevent campaigning. For example, Representative Ingoglia ex-
plained that the goal was to prevent “campaigning on [the] line,”
including activities such as candidates handing out water bottles to
voters. And although Representative Ingoglia stated that “we’ve
never said that any non-profit organization is trying to influence
votes,” he also reiterated that “the intent . . . is to make sure that
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22-11143 Opinion of the Court 27
nobody is trying to influence the vote while they are on the line.”
(Emphasis added.) Handing a voter something of value, even wa-
ter, could be a means of influence, he explained. In that context, a
categorical bar on soliciting voters—not just solicitation by partisan
electioneers—is consistent with the stated justification.
And protecting voter privacy is also a valid state interest. Ac-
cording to Senator Baxley, S.B. 90’s supporters sought “to protect
this sacred act [of voting], this is a private and individual thing.”
The district court disagreed and described voting as an often “com-
munitarian act,” especially for black voters. But the Supreme Court
and this Court have acknowledged that states have an interest in
protecting voters from unwanted interactions with third parties as
they enter or exit the polling place. We have explained that if “[t]he
State wants peace and order around its polling places, . . . we ac-
cord significant value to that desire[,] for it preserves the integrity
and dignity of the voting process and encourages people to come
and to vote.” Citizens for Police Accountability Pol. Comm. v.
Browning, 572 F.3d 1213, 1220 (11th Cir. 2009). And the Supreme
Court has recognized that “there must be a substantial regulation
of elections if they are to be fair and honest and if some sort of or-
der, rather than chaos, is to accompany the democratic processes.”
Buckley v. Am. Const. L. Found., Inc., 525 U.S. 182, 187 (1999)
(quoting Storer v. Brown, 415 U.S. 724, 730 (1974)). We have even
upheld a restriction on the solicitation of voters as they leave the
polling place, “envision[ing] polling places awash with exit solici-
tors” and voters “refrain[ing] from participating in the election
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28 Opinion of the Court 22-11143
process merely to avoid the resulting commotion when leaving the
polls.” Citizens for Police Accountability, 572 F.3d at 1220. A broad
prohibition on soliciting voters serves the State’s interest in pre-
serving order at polling places.
c. Registration-Delivery Provision
Finally, the district court rejected the proffered justifications
for the registration-delivery provision. According to the district
court, members of the Legislature “falsely” claimed that the new
restrictions on third-party voter-registration organizations were re-
quired by a previous court order. (Citing Browning, 863 F. Supp.
2d at 1159.) The district court suggested that the justification for
the provision “rested on th[at] false claim.” Even if some supporters
misunderstood that court order, such a mistake hardly proves that
their concerns were a pretext for discriminatory intent.
The record reflects other motivations as well. For example,
one supporter described the provision as a “good commonsense
regulation which, by the way, is absolutely required by court rul-
ing.” (Emphasis added.) The lobbyist for the Florida Supervisors of
Elections testified that the registration-delivery provision was a leg-
islative “priority” for his client. Third-party voter-registration or-
ganizations, he testified, would deposit large numbers of registra-
tion forms in populous counties, burdening the supervisors with
the task of “separat[ing] out their files for them.” He also expressed
these concerns to members of the House Public Integrity and Elec-
tions Committee at a hearing. This information may have
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22-11143 Opinion of the Court 29
influenced members of the Florida Legislature to enact the regis-
tration-delivery provision.
There is also evidence of third-party voter-registration or-
ganizations turning in voter-registration forms after the registra-
tion deadline. Director Matthews testified that the Department of
State had received complaints on “a fairly regular basis” of organi-
zations “providing registrations late.” Supervisor White of Miami-
Dade County testified that she was aware of instances in which reg-
istration forms were delivered late and even times when “third-
party voter registration organizations are alleged to have changed
a voter’s registration information without their consent.” Supervi-
sor Doyle of Lee County testified that “one third party . . . seems
to constantly turn in late registration forms.” Three county super-
visors—from Pasco, Pinellas, and St. Johns Counties—were even
aware of voters who did not vote in an election because a third-
party voter-registration organization either turned in the would-be
voters’ registration forms late or failed to turn them in at all. For
example, Supervisor Oakes of St. Johns County received twelve
late applications for voters who, as a result, were not able to vote
in the March 2020 election.
The findings of fact related to the enactment-history Arling-
ton Heights factor do not withstand clear-error review. The district
court never stated that it found direct evidence of racial animus, so
its finding of discriminatory intent “rel[ied] on circumstantial evi-
dence.” It relied on its determination that the justifications put for-
ward by S.B. 90’s proponents were not credible as evidence that
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30 Opinion of the Court 22-11143
they were pretext for nefarious motives. But the record makes clear
that the supporters’ justifications were credible. Contrary to the or-
ganizations’ narrative, the Florida Legislature did not “pass[] a bill
that addresses imaginary concerns or lacks a connection to its an-
nounced purposes,” so as to “support[] an inference of discrimina-
tion.” Instead, it passed a bill that supporters argued would safe-
guard the integrity of elections against non-imaginary threats. The
wisdom of the Legislature’s policy choices is not ours to judge.
3. Procedural Departures
Any procedural departures in the legislative history, the dis-
trict court determined, “show only that SB 90 was highly partisan.”
Once again, “partisan motives are not the same as racial motives.”
See Brnovich, 141 S. Ct. at 2349. It is unnecessary to address this
factor because it did not contribute to the district court’s finding of
intentional racial discrimination or disparate impact.
4. Contemporary Statements and Actions of Key Legislators
The district court also considered the “contemporary state-
ments and actions of key legislators.” It detailed multiple state-
ments that it recognized yielded little support to a finding of inten-
tional racial discrimination. It relied heavily on one statement by
Senator Baxley, taken out of context, to find that this Arlington
Heights factor favored a finding of discriminatory intent.
The district court described multiple exchanges among leg-
islators before deciding that they shed little light on the Legisla-
ture’s intent. For example, it acknowledged that a text message
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22-11143 Opinion of the Court 31
thread between two legislators—reproduced in the opinion—
“do[es] not show a racially discriminatory intent” but instead “sug-
gest[s] that the Legislature passed SB 90 with partisan purpose.” A
connection between race and partisan voting patterns is not
enough to transform evidence of partisan purpose into evidence of
racially discriminatory intent. The district court also mentioned a
discussion on the Senate floor, in which two senators purportedly
invoked a “racial trope[]” by insinuating that people who do not
vote fail to do so because they are “lazy.” But the district court de-
termined that the exchange “does not tell this Court much about
the Legislature’s motivations as a whole.”
The district court focused heavily on Senator Baxley, the
bill’s sponsor. It described certain positions he had taken before as
“deeply troubling,” but it determined that the sponsor’s personal
history was of “marginal relevance” to the Arlington Heights in-
quiry. Instead, the district court highlighted a statement that Sena-
tor Baxley made on the Senate floor. When asked whether he knew
that restrictions in the bill would “have a disparate impact on black
voters,” Senator Baxley responded that he had “a hard time hearing
somebody even say that” and denied that S.B. 90 would “disenfran-
chise[] anyone.” He continued, “Now to look at patterns of use and
say, well, you may have to go about it a little different way. There’s
a learning curve.” The district court relied heavily on this state-
ment to infer that the contemporary statements and actions of key
legislators weighed in favor of a finding of discriminatory intent.
But, in context, the statement gives rise to no inference of
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32 Opinion of the Court 22-11143
discriminatory intent. Senator Baxley specifically rejected any sug-
gestion that the bill would have a disparate impact on black voters.
Senator Baxley made other statements that counsel against
inferring a nefarious purpose. For example, in a Rules Committee
meeting, he responded to a question about whether S.B. 90 would
be “helpful to reduce . . . Black voter turnout” with a resolute de-
nial:
I certainly hope not. That’s not the intention on my
part; I can assure you. I’m very proud that we’ve
opened up, during my tenure on working in public
policy in this arena, that we have made more and
more ways to access, if you will[,] participate. . . . I
don’t buy the whole Jim Crow story. I’m sorry that
that’s out there.
So, again, the district court relied heavily on a single statement by
the sponsor that, in context, offers no evidence of discriminatory
intent. And in any event, the explanatory value of an isolated state-
ment would be limited. See United States v. O’Brien, 391 U.S. 367,
384 (1968) (“What motivates one legislator to make a speech about
a statute is not necessarily what motivates scores of others to enact
it . . . .”).
That the statement was made by the sponsor adds little to
its significance. As we have explained, “a sponsor is only one vote”
out of many. Greater Birmingham, 992 F.3d at 1324. And many
votes favored S.B. 90. The bill passed by a margin of 77 to 40 votes
in the House and 23 to 17 votes in the Senate. See SB 90, FLA.
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22-11143 Opinion of the Court 33
SENATE, https://www.flsenate.gov/Session/Bill/2021/90. One
senator does not speak for all the supporters of S.B. 90.
5. Impact of the Challenged Law
Next, the district court considered the likely impact of the
challenged provisions. It determined that all three provisions
would have a disparate impact on black voters. But again, this find-
ing does not withstand even our deferential review.
a. Drop-Box Provision
The district court determined that the drop-box provision
would have a disparate impact on black voters. It “conclude[d] that
SB 90 will burden voters who use drop boxes” and that “these vot-
ers are disproportionately likely to be Black.” Although it acknowl-
edged that “race’s effect on drop-box use appears less pronounced
than the effect of party on drop-box usage,” the district court found
that race still “appears to have a meaningful and remarkably con-
sistent connection with drop-box usage.” And it determined that
black voters “use [drop boxes] in precisely the ways SB 90 prohib-
its”—that is, outside of early voting hours.
The district court clearly erred. The record does not support
a finding of disparate impact. The district court based its finding
that black voters are more likely to use drop boxes on a statistically
insignificant correlation between the number of black vote-by-mail
voters and drop-box usage across counties; inconsistent drop-box
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34 Opinion of the Court 22-11143
usage records from five counties; a survey showing a 1.3 percent-
age point difference in the rate at which black and white voters use
drop boxes; and the lower drop-box-to-population ratio in “large,
racially heterogenous counties.”
First, the district court relied on a positive but statistically
insignificant correlation between the number of black vote-by-mail
voters and drop-box usage across counties. Even the organizations’
expert, Dr. Herron, admitted that this correlation was only “sug-
gestive of a relationship between race and drop box use but not
definitive on this point.” A statistically insignificant relationship is
not statistically distinguishable from chance, and it is impossible to
say whether any relationship is causal based on a mere correlation.
And the analysis included data from only 46 of 67 counties because
not all counties produced such information. Perhaps this evidence
could, as the organizations suggest, bolster other consistent evi-
dence, but the other evidence in the record is as weak.
Second, Dr. Herron reviewed drop-box usage by race in the
five out of sixty-seven counties that provided such information. He
separately analyzed one set of three counties and another set of two
smaller counties. The district court discussed the results of only the
former analysis.
Dr. Herron performed logistic regression to determine the
relationship between race and drop-box usage in only three coun-
ties. Based on his analysis, the district court concluded that black
vote-by-mail voters in those counties “had, on average, 14 [percent]
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22-11143 Opinion of the Court 35
greater odds” than white vote-by-mail voters “of voting by drop
box in the general election” and “48 [percent] and 25 [percent]
greater odds . . . of voting via drop box” in “the presidential prefer-
ence primary and the primary elections,” respectively. But the data
from the three counties on which he relied—Sarasota, Santa Rosa,
and Columbia—cannot support a meaningful, representative anal-
ysis.
The data on which Dr. Herron relied came from a small and
unrepresentative sample, as even the district court acknowledged.
About 14 percent of voters in Columbia County are black. But
black voters make up only 3.24 and 4.45 percent of registered vot-
ers in Sarasota and Santa Rosa Counties, respectively. Based on the
district court’s statistics, black voters make up roughly 13 percent
of the registered voters in Florida. Dr. Herron’s analysis included
data from eight elections: the 2020 primary and general elections
in three counties and the 2020 presidential preference primaries in
two counties. In three of those eight elections, there were fewer
than one hundred black drop-box users, including one election in
which there were only three black drop-box users. Dr. Herron con-
tended that he was even “more confident” in his conclusion be-
cause “he detected a correlation between being Black and using a
drop box despite the unrepresentatively small Black populations in
the counties for which he had data.” Although it is true that a sta-
tistically significant relationship can sometimes be detected even
when analyzing a small dataset, any relationship found in a small,
unrepresentative sample is, by definition, not reliably descriptive of
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36 Opinion of the Court 22-11143
the population. Barbara Illowsky & Susan Dean, Introductory Sta-
tistics 20 (2018) (“[S]amples that are not representative of the pop-
ulation give results that are inaccurate and not valid.”).
Worse still, the statistical relationship that Dr. Herron found
is predominantly driven by data from a single county. The statisti-
cal analysis pools the data from the three counties across general,
primary, and presidential preference elections. As a result, data
from Sarasota County—which has nearly twice as many registered
voters as Santa Rosa and Columbia Counties combined—largely
drove the findings. White voters used drop boxes at higher rates
than black voters in all but one of the elections analyzed in Santa
Rosa and Columbia Counties. Among the three counties, only in
Sarasota County did black voters consistently use drop boxes at
higher rates. We have no way to know which county, if any of the
three, is representative of voter behavior across the State. But we
do know that, among the three counties, black voters constitute
the smallest percentage of registered voters in Sarasota County. No
statistically valid conclusions about a state in which black voters
make up approximately thirteen percent of registered voters can be
drawn from an analysis driven predominantly by data from a single
county in which black voters make up less than four percent of reg-
istered voters.
Our reservations respecting the reliance on Dr. Herron’s
analysis extend beyond the quality of the underlying data. Dr. Her-
ron described the importance of positive coefficients—that is, a
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22-11143 Opinion of the Court 37
positive relationship between a voter’s race and likelihood to use a
drop box—over the “precise magnitudes of the coefficient esti-
mates” in his logistic regression, “because these estimates are not
easily interpreted.” Nonetheless, the district court itself attempted
the very calculation against which Dr. Herron had advised. The
district court, not Dr. Herron, estimated that a black vote-by-mail
voter in those three counties had, “on average, 14 [percent] greater
odds than a White [vote-by-mail] voter of voting by drop box” in a
general election and even higher odds in primaries. For reference,
the raw difference in the rates at which black and white voters used
drop boxes in Sarasota County averaged roughly 11 percentage
points, but the difference in the one Columbia County election in
which black voters used drop boxes at a higher rate than white vot-
ers was less than one percentage point. We question the district
court’s decision to rely on its own calculations as meaningful evi-
dence, despite Dr. Herron’s cautionary statement.
Dr. Herron separately reviewed data from Madison and
Franklin Counties, which he acknowledged “are relatively small in
terms of [vote-by-mail] counts.” Data was available in those coun-
ties from only the 2020 general election. And there were only sev-
enty-eight and fifty black drop-box voters in Franklin and Madison
Counties, respectively. In Franklin County, 37.5 percent of black
vote-by-mail voters used drop boxes compared with 33.61 percent
of white voters—a difference of 3.89 percentage points. In Madison
County, 6.24 percent of black vote-by-mail voters used drop boxes
compared with 4.03 percent of white voters—a difference of 2.21
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38 Opinion of the Court 22-11143
percentage points. The difference in race-based drop-box usage in
these two counties was neither of large magnitude nor statistically
significant.
Third, the evidence of statewide drop-box use clarifies little.
Dr. Burch, an expert for the organizations, cited a survey by the
2020 Cooperative Election Study. It found that “an estimated 29.6
percent [of black respondents in Florida who voted by mail] used
[drop] boxes compared with 28.3 percent of [white respondents in
Florida].” A difference of only 1.3 percentage points is not substan-
tial.
Fourth, the lower drop-box-to-population ratio in “large, ra-
cially heterogenous counties” proves little. Dr. Herron explained
that “the more populous counties in Florida have more locations
at which drop boxes may be situated per SB 90,” but “the rate at
which these counties have more locations does not keep up with
the sizes of the counties’ registered voter pools.” Even assuming
the accuracy of this statement, we question its significance to the
present inquiry. When there is a low drop-box-to-population ratio
in populous counties, Dr. Herron suggested, voters may face
“greater congestion” around drop boxes. For this reason, a de-
crease in the number of drop boxes available might have a dispar-
ate impact on black voters, who tend to reside in more populous
areas. But voters in large population centers are not the only voters
who would be affected by a decrease in the number of drop-box
locations. For example, where there are few drop boxes per square
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22-11143 Opinion of the Court 39
mile in rural areas, voters may have to drive considerable distances
to deposit their ballots. So, the drop-box-to-population ratio in pop-
ulous counties does not necessarily establish that the restrictions
on drop-box placement imposed by S.B. 90 will have a disparate
impact on black voters.
The finding that black voters are more likely to use drop
boxes outside of early voting hours rests on equally flimsy evi-
dence. Dr. Smith, an expert for the organizations, relied on data
from the two out of sixty-seven counties that tracked when voters
deposited ballots as well as voters’ identifying information. In Co-
lumbia County, he found that 52.4 percent of ballots deposited by
black voters and 50.2 percent of ballots deposited by white voters
were deposited outside of early voting days. In Manatee County,
he found that 13.5 percent of ballots deposited by black voters and
11.4 percent of ballots deposited by white voters were deposited
outside of business hours. Even at face value, the disparities are so
small—just over two percentage points in both counties—that they
cannot support a finding of disparate impact. But the analyses are
also flawed in other ways.
In Columbia County, Dr. Smith only measured rates of
drop-box use outside of early voting days, not necessarily outside
of business hours. Dr. Smith’s analysis establishes that black voters
in Columbia County were slightly more likely than white voters to
deposit their ballots on days that fell outside the early-voting pe-
riod. But it does not explain why black voters would
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40 Opinion of the Court 22-11143
disproportionately struggle to use drop boxes during the early-vot-
ing period, if drop boxes were only available during that time. The
early-voting period includes all seven days of the week, see FLA.
STAT. § 101.657(d), so any racial disparities in the flexibility of work-
ing hours and access to transportation do not impact black voters’
ability to deposit ballots in drop boxes during the early-voting pe-
riod. A finding that black voters in one county are slightly more
likely to deposit ballots in drop boxes outside of early-voting days
is not evidence that the drop-box provision will have a disparate
impact on black voters in Florida.
In Manatee County, Dr. Smith measured drop-box use out-
side of business hours, but he employed a flawed methodology.
The Manatee Supervisor of Elections “recorded (with a timestamp)
each [vote-by-mail] ballot it received.” Dr. Smith stated that the su-
pervisor’s “staff presumably collected and processed after-hour
[vote-by-mail] ballots deposited in drop boxes late at night or the
ensuing morning.” So, he classified a ballot as having been depos-
ited after business hours if it was “processed before 10[:00] [a.m.]”
But this methodology was far from precise. The Manatee County
Supervisor of Election’s Office was open from “7:00 [a.m.] to 7:00
[p.m.] during the early voting period.” A ballot processed by elec-
tion officials at 10:00 a.m. may have been deposited outside of
those hours or it may have been deposited by a voter on his way to
work between 7:00 and 10:00 a.m. As a result, the analysis likely
overestimates the number of ballots deposited outside of business
hours. It also reduces our confidence in Dr. Smith’s conclusion that
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22-11143 Opinion of the Court 41
black voters are more likely than white voters to deposit ballots
outside of business hours. It is impossible to tell whether any er-
ror—ballots mislabeled as deposited outside of business hours—is
evenly distributed among black and white voters or whether the
results have been skewed. As a result, there is simply no reliable
evidence from which to infer that black voters are more likely than
white voters to deposit ballots in drop boxes outside of business
hours.
Other evidence related to drop-box use also cannot support
a finding of disparate impact. Evidence related to drop-box use out-
side the early-voting period or outside of business hours—absent
information about the race of the voters who deposited their bal-
lots at those times—does not prove that the drop-box provision
will have a disparate impact on black voters. Likewise, testimony
that some counties will offer fewer drop boxes in the future cannot
establish disparate impact without reliable evidence of voting pat-
terns as to race. Because there is no reliable evidence in the record
that black voters are meaningfully more likely to use drop boxes or
more likely to use drop boxes outside of business hours, the finding
that the drop-box provision would have a disparate impact on black
voters was clear error.
b. Solicitation Provision
Next, the district court found that the solicitation provision
would have a disparate impact on black voters. “[I]n practical
terms, the solicitation definition discourages groups who give food,
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42 Opinion of the Court 22-11143
water, and other forms of encouragement to voters waiting in long
lines,” it determined. So, the district court measured disparate im-
pact by assessing racial disparities in the time voters wait in line at
the polls. It found that “minority voters in Florida are, on average,
more likely to wait in long lines to vote.”
Again, the evidence on which the district court relied was
flawed. One of the organizations’ experts, Dr. Smith, reported that,
during the 2020 early-voting period in Miami-Dade County, “24.8
[percent] of Black voters had wait times of 30 minutes or longer”
and “15.2 [percent] of White voters had wait times of 30 minutes
or longer.” Not only was this report based on an analysis of a single
county, but it also derives from an incomplete dataset, even within
that county. According to his expert report, Dr. Smith obtained
seven screenshots taken across five days of a county website show-
ing the wait times at all thirty-three early voting locations. Dr.
Smith examined the relationship between whether the polling
place had a long “wait time at some point during the day” accord-
ing to the snapshots and the demographics of the voters who cast
their ballots at each location on those days. The district court relied
on this data—specifically, an amended table admitted at trial—as
evidence that black voters were more likely to wait in long lines at
the polls.
But this evidence is fatally imprecise, as wait times at polling
places can vary dramatically throughout the day. The length of a
line at a given polling location at 3:00 p.m., for example, tells us
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22-11143 Opinion of the Court 43
nothing about the line voters face at 6:00 p.m., when many people
stop to vote on the way home from work. We do not know
whether black voters are more likely to vote at those polling places
when the lines are long or short. A slightly more precise version of
Dr. Smith’s analysis identified voters who cast their ballots within
an hour of each snapshot, but that data is even more limited—and
it appears to evidence that Hispanic voters suffered the brunt of the
long wait times. Other evidence suggested that wait times in Mi-
ami-Dade County were “modest” after the first day of early voting
and that “no voter wait[ed] more than one hour to vote” on Elec-
tion Day.
In two other counties, the district court acknowledged that
Dr. Smith’s data was too limited to serve as the basis for meaning-
ful conclusions. In Orange County, data derived from a single snap-
shot evidenced that white voters faced the longest wait times,
though the finding was to some degree driven by a single polling
place where the line was unusually long. An incomplete set of
screenshots in Lee County showed that black voters were more
likely than white voters to wait for less than 15 or more than 30
minutes, whereas white voters were more likely to wait between
15 and 30 minutes. But the Lee County analysis was based on “daily
screenshots,” most of which were “taken around mid-day” and
some of which were missing certain polling locations or specific
timestamps.
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44 Opinion of the Court 22-11143
Finally, in his supplemental report, Dr. Smith relied on news
media reports to assess wait times in Lee, Hillsborough, and Mi-
ami-Dade Counties. These media reports are not reliable evidence
of disparate impact. Dr. Smith appears to have offered no addi-
tional empirical evidence that the long lines in these counties had
a disparate impact on black voters.
In sum, Dr. Smith’s analysis was based on an extremely lim-
ited—and not necessarily representative—dataset. And even if his
analysis were methodologically reliable, it yields mixed evidence
about whether black voters faced longer wait times than white vot-
ers at the polls.
Other evidence also cannot sustain the district court’s find-
ing. Two of the organizations’ other experts, Dr. Burch and Dr.
Herron, also analyzed voter wait times based on statewide survey
data. Dr. Burch relied on data from the 2020 Cooperative Election
Study. She testified that 5.3 percent of black voters as compared to
4 percent of white voters reported waiting in “long lines”—more
than an hour long—in 2020. But a difference of 1.3 percentage
points is hardly meaningful. Dr. Herron relied on data from the
Survey of the Performance of American Elections, which evi-
denced that white voters in the 2020 and 2016 elections—but not
the 2012 election—were more likely to report waiting in line for
more than 30 minutes compared with black voters. Again, the evi-
dence was mixed, and the identified racial disparities were small.
The district court also cited Dr. Smith’s testimony respecting the
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22-11143 Opinion of the Court 45
academic literature on voting lines, particularly a study of the 2012
election, for the proposition that minority voters face “dispropor-
tionately long lines” in Florida. That study measured the race only
of voters who cast ballots after early voting lines were cut off at
7:00 p.m., not racial disparities in wait times overall, and it found
that the racial disparity observed in 2012 effectively “did not appear
in 2016.” Also, the 2012 election was anomalous because the early-
voting period had been reduced, and it has since been restored.
And even if the evidence established that black voters were
more likely to wait in lines at the polls, that finding would not alone
support a conclusion that the solicitation provision has a disparate
impact on black voters. The district court determined that “the so-
licitation definition will have a disparate impact on minority voters
because minority voters are disproportionately likely to wait in line
to vote, and because the provision discourages third parties from
helping those waiting to vote.” The district court assumed, without
making any factual findings supporting the assumption, that by re-
stricting the ability of third parties to hand out water bottles and
snacks, the solicitation provision makes it harder for voters waiting
in line to cast their ballots. The organizations make a similar as-
sumption, supported at best by evidence that “excessive wait times
cause voters to leave without voting”—not evidence that a bottle
of water will convince them to stay in line. In sum, the finding that
the solicitation provision will have a disparate impact on black vot-
ers was clear error.
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46 Opinion of the Court 22-11143
c. Registration-Delivery Provision
Finally, the district court found that the registration-delivery
provision would have a disparate impact on black voters. The pro-
vision, it reasoned, “impos[ed] additional costs on [third-party
voter-registration organizations], thus limiting the number of vot-
ers each [organization] can reach.” The district court cited post-
2012 voter registration data that evidenced that “15.37 [percent] of
Black voters” and 2.79 percent of white voters registered using
third-party voter-registration organizations. A similar, but smaller,
disparity exists across party lines: “10.48 [percent] of Democrats . . .
and only 3.9 [percent] of Republicans registered using [third-party
voter-registration organizations].” And evidence in the record sug-
gested that the registration-delivery provision imposed compliance
costs on the third-party organizations. The finding that the regis-
tration-delivery provision will have a disparate impact on black
voters is not clearly erroneous. But absent “a clear pattern, unex-
plainable on grounds other than race,” a finding of “discriminatory
impact alone is not determinative” of whether a provision violates
the Fourteenth or Fifteenth Amendment. Greater Birmingham,
992 F.3d at 1322 (quoting Arlington Heights, 429 U.S. at 266) (alter-
ation adopted).
6 & 7. The Foreseeability of the Disparate Impact & Legislators’
Knowledge of that Impact
The district court determined not only that S.B. 90 would
have a disparate impact but also that this impact was foreseeable
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22-11143 Opinion of the Court 47
to—and foreseen by—the Legislature. Because we hold that the
finding that the drop-box and solicitation provisions will have a dis-
parate impact on black voters is clear error, we are skeptical that
the Legislature could have foreseen a disparate impact. In any
event, the evidence of foreseeability on which the district court re-
lied was deficient.
The district court found that the Legislature enjoyed access
to voter statistics supplied by the Division of Elections. It implied
that those statistics would reveal that the challenged provisions
would have a discriminatory impact on black voters. But Director
Matthews’s testimony confirmed that the Legislature received raw
data, not easy-to-read summaries. Even the district court recog-
nized that “[p]erhaps the raw data itself is not enough.”
Even so, the district court found that the Florida legislators
could—and did—foresee that the drop-box provision would have a
disparate impact on black voters. “Director Matthews testified that
the Legislature wanted to know ‘who uses drop boxes,’” it ex-
plained. Although Director Matthews also testified that she be-
lieved that the Legislature “just wanted to know how many people
were using the drop boxes,” the district court found—in a trial con-
ducted over the video-conferencing software Zoom—that her
“face and body language” suggested that she “recognized her slip
in testifying truthfully” that the Legislature was really interested in
demographics. The district court inferred not only that the Legis-
lature sought information on the demographics of drop-box users,
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48 Opinion of the Court 22-11143
but also that S.B. 90’s regulation of drop-boxes was infused with
discriminatory intent.
The district court made multiple inferential leaps, some of
which were entirely unfounded. First, it inferred from Director
Matthews’s “face and body language,” over Zoom, that the witness
was lying. We ordinarily defer to the factfinder’s credibility assess-
ment of witnesses, so we accept that determination. Crystal Ent. &
Filmworks, Inc. v. Jurado, 643 F.3d 1313, 1320 (11th Cir. 2011).
Next, it inferred that, in fact, the Legislature sought information
about the demographics of drop-box users. Finally, it inferred that
the legislators either sought to craft legislation that would have a
disparate impact on black voters or were made aware that S.B. 90
would have such an impact. But this interpretation of—and extrap-
olation from—Director Matthews’s testimony contradicts her pre-
vious, unambiguous testimony that she did not “recall . . . being
asked” “to break down the data by racial demographics of voters
and the modality chosen to cast a ballot.” So, even if we accept the
assessment of Director Matthews’s credibility, the record does not
support the chain of inferences and finding that the district court
drew from her testimony.
The finding that “the Legislature” sought to uncover “who
uses drop boxes” begs an important question: how can a multi-
member body ask a question? Based on Director Matthews’s testi-
mony, an unspecified number of individual legislators requested
information by phone, by email, at hearings, and the like. The
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22-11143 Opinion of the Court 49
district court made no finding of fact respecting how many legisla-
tors might have made such an inquiry. Although the contemporary
statements of key legislators are relevant to an Arlington Heights
analysis, a statement or inquiry by a single legislator would consti-
tute little evidence of discriminatory intent on the part of the legis-
lature. Cf. Greater Birmingham, 992 F.3d at 1324 (“It is also ques-
tionable whether the sponsor speaks for all legislators.”). Thus—
even if we were to accept the tenuous inferential chain outlined
above—the evidence in the record does not appear to substantially
support the major inference that “the Legislature” sought infor-
mation about the demographics of drop-box users.
It is also unclear whether the legislators could have obtained
this demographic information even if they wanted to do so. The
district court explained that “the Division does not keep infor-
mation on drop boxes, and thus presumably did not provide any
information to the Legislature.” But individual supervisors of elec-
tions have access to such information, and the district court found
that “[t]he Legislature also asked individual supervisors of elections
for information.” Based on these facts—but no ascertainable evi-
dence that any specific legislators, except perhaps Senator Baxley,
requested this information of the supervisors, much less that most
did—the district court determined that “the Legislature likely had
the same drop box data before it that is now before this Court.”
The state officials correctly contend that there is also no evidence
that the legislators were “aware of, let alone motivated by, the so-
phisticated math [respecting drop-box use] the district court found
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50 Opinion of the Court 22-11143
persuasive.” Finally, even if the legislators had access to all the data
in the record respecting drop-box usage, it would not prove the
Legislature knew that the drop-box provision would have disparate
impact on black voters. As we have already explained, the data do
not support a finding that the drop-box provision will have a dis-
parate impact.
The district court likewise determined that Florida legisla-
tors could—and did—foresee that the registration-delivery provi-
sion would have a disparate impact on black voters. It found that
“the Legislature asked for and received demographic information
about [third-party voter-registration organization] use[, and] . . .
that the Legislature knew that the registration[-delivery] provision
would have a disparate impact on minority voters.” This finding
appears to be based on Senator Farmer’s testimony that “[w]e were
in possession of statistical evidence that showed that voter registra-
tion groups registered about 10 percent of Black voters . . . but only
1 percent of White voters.” Senator Farmer testified to this fact
without explaining where the statistics came from or how widely
they were distributed among the legislators. The district court in-
ferred that Senator Farmer must have obtained the information
from the Division of Elections because it was based on nonpublic
data, and it further inferred that “the Legislature asked for” this in-
formation. The district court also highlighted Director Matthews’s
testimony that members of the Legislature “wanted to know about
third-party voter registration organizations.” But that statement is
even more ambiguous than the statement that members of the
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22-11143 Opinion of the Court 51
Legislature wanted to know “who uses the drop boxes.” It could
mean that members of the Legislature sought any type of infor-
mation about these organizations. Because it is unclear how many
legislators even had access to or considered the information, it can-
not support a finding of discriminatory intent.
The district court even determined that legislators could—
and did—foresee that the solicitation provision would have a dis-
parate impact on black voters. But the record does not make clear
whether any information respecting the solicitation provision’s im-
pact was before the Legislature, other than the statements of the
bill’s opponents. The organizations maintain that these statements
were enough to bridge what the state officials characterize as a
“logical leap[]” between voting-line length and the alleged dispar-
ate impact of the solicitation provision. We disagree.
The district court and the organizations emphasize that the
statements of S.B. 90’s opponents should have put legislators on
notice that all the challenged provisions would have a disparate im-
pact on black voters. But the concerns expressed by political oppo-
nents during the legislative process are not reliable evidence of leg-
islative intent. Cf. Ernst & Ernst v. Hochfelder, 425 U.S. 185, 203
n.24 (1976) (explaining that warnings of the potentially vast impact
of a bill by “legislative opponents[—]who [i]n their zeal to defeat a
bill . . . understandably tend to overstate its reach”—should be “en-
titled to little weight” (internal quotation marks omitted)). Several
lobbying organizations also distributed studies explaining S.B. 90’s
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52 Opinion of the Court 22-11143
potential impact “to the Legislature,” but the district court deter-
mined that “[i]t is unclear . . . whether these letters were ever con-
sidered.”
In sum, there is no substantial evidence that the Legislature
foresaw that the challenged provisions would have a disparate im-
pact. The finding to the contrary was clear error.
8. The Availability of Less Discriminatory Alternatives
Finally, the district court found that “less discriminatory al-
ternatives” to the challenged provisions “not only were available
but were presented to and rejected by the Legislature.” To be sure,
as the organizations point out, various amendments to S.B. 90 were
offered. The organizations contend that some of these amend-
ments “would have reduced the Challenged Provisions’ racially dis-
parate impact.” But the fact that “the [Florida] [L]egislature did not
include the alternative option[s] that Plaintiffs would have pre-
ferred” is not evidence of discriminatory intent. Greater Birming-
ham, 992 F.3d at 1327. The legislative branch is not hamstrung by
judicial review to adopt any amendment that a bill’s opponents
claim would improve it.
In fact, the record establishes that S.B. 90’s proponents were
receptive to input during the legislative process. The lobbyist for
the Supervisors of Elections—who did not formally support or op-
pose the bill as a whole—“testified that 75 [percent] to 80 [percent]
of the alterations to SB 90 during its trip through the Florida
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22-11143 Opinion of the Court 53
Legislature were based on his recommendations.” Representative
Tracie Davis, a Democrat, acknowledged in an Appropriations
Committee meeting that “the sponsor of this bill has been working
with all the stakeholders,” that the “bill has changed[,] . . . and
[that] it’s going into a decent direction”—though she still ques-
tioned its content. Likewise, Democratic Representative Ben Dia-
mond expressed his appreciation for some of the changes made,
although he did not support the legislation overall. And multiple
changes were made to S.B. 90 that loosened the restrictions that it
would have otherwise imposed. For example, earlier versions “pro-
posed a complete elimination of drop boxes” or required “a voter
to provide [his or her] driver’s license number [or an attestation]
when dropping off a ballot at a drop box.” Plainly, the Legislature
adopted some alternatives that were more palatable to the bill’s op-
ponents. It did not accept all of them, nor was it required to do so.
See Greater Birmingham, 992 F.3d at 1327.
Finally, the district court failed to identify viable alternatives
to the challenged provisions that would have achieved the same
objectives, which might have served as evidence of discriminatory
intent under Arlington Heights. See Greater Birmingham, 992 F.3d
at 1327. As for the drop-box provision, the district court pointed to
a failed amendment that would have permitted video surveillance
of 24-hour drop boxes. But unless the live video feed is monitored
and security personnel are nearby, a video record of vandalism
would not serve the purpose of preventing the destruction of the
ballots inside the box or provide the other benefits of a live person
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54 Opinion of the Court 22-11143
to assist voters at the drop box. With respect to the solicitation pro-
vision, the district court referenced proposed amendments “that
would have allowed civic organizations to hand out food and wa-
ter.” But if, as Senator Baxley suggested, the Legislature sought to
prevent a captive audience of voters in line from being approached
by third parties in the interest of privacy, this alternative would not
achieve the goal. As for the registration-delivery provision, the dis-
trict court suggested that the Legislature could simply have “do[ne]
nothing.” It reasoned that there was no legitimate justification for
the provision, so no alternative was necessary. But, as described
above, legitimate motivations did exist. As a result, the finding that
the Legislature rejected less discriminatory alternatives to the three
provisions was clear error.
***
Weighing this evidence, the district court found that the
Legislature intended to target black voters. The motivation, it de-
termined, was to “secure an electoral advantage for the Republican
Party.” In particular, the district court found that the drop-box pro-
vision targeted black voters because it “effectively bans drop-box
use at the specific times and the specific days that Black voters . . .
are most likely to use them.” Likewise, it found that the solicitation
and registration-delivery provisions targeted black voters because
“White Democrats do not wait in long lines, nor do they use [third-
party voter-registration organizations] to register.”
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22-11143 Opinion of the Court 55
As we have explained, the district court’s finding based on
this evidence does not withstand examination. The district court
relied on fatally flawed statistical analyses, out-of-context state-
ments by individual legislators, and legal premises that do not fol-
low our precedents. The organizations contend that “divorc[ing]
individual threads of evidence from the larger ‘calculus-of-voting’
framework” unfairly deconstructs their argument. On the con-
trary, examining the record reveals that the finding of intentional
discrimination rests on hardly any evidence.
The organizations bore the burden of proving both discrim-
inatory impact and discriminatory intent. Greater Birmingham,
992 F.3d at 1321. Because the record does not contain evidence suf-
ficient to sustain a finding of either disparate impact or discrimina-
tory intent for the solicitation provision and drop-box provision,
neither provision violates the Constitution.
The registration-delivery provision presents a closer ques-
tion. Sufficient evidence exists in the record to uphold the finding,
on clear-error review, that the provision will have a disparate im-
pact on black voters. But a finding of disparate impact alone cannot
support a finding that the registration-delivery provision violates
the Constitution. Id. at 1322. Other evidence, at most, establishes
that some legislators knew that black voters are more likely than
white voters to register to vote using third-party voter-registration
organizations. That evidence does not establish that the Legislature
acted with discriminatory intent. So, the organizations’
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56 Opinion of the Court 22-11143
constitutional claims against the registration-delivery provision
must also fail.
And even if the organizations established a prima facie case
against the registration-delivery provision, the burden would shift
to the state officials to “demonstrate that the law would have been
enacted without this [racial discrimination] factor.” Id. at 1321
(quoting Hunter, 471 U.S. at 228). Undisputed evidence in the rec-
ord establishes that a valid justification for the registration-delivery
provision existed. After all, the lobbyist for the Supervisors of Elec-
tions testified that the provision was a “priority” because organiza-
tions would deposit large numbers of registration forms in popu-
lous counties, and Director Matthews testified that election offi-
cials received complaints on “a fairly regular basis” about organiza-
tions “providing registrations late.” The only less discriminatory al-
ternative mentioned by the district court was “doing nothing.” As
a result, the registration-delivery provision does not violate the
Constitution.
In sum, based on this record—and even in the light of the
deferential standard of review we must apply to the findings of
fact—the district court clearly erred in finding that the challenged
provisions were enacted with discriminatory intent in violation of
the Fourteenth and Fifteenth Amendments. As a result, we reverse
the decision of the district court in part.
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22-11143 Opinion of the Court 57
B. The Drop-Box, Solicitation, and Registration-Delivery Provi-
sions Do Not Violate the Voting Rights Act.
The district court determined that the challenged provisions
violated section 2 of the Voting Rights Act. It concluded that a find-
ing of discriminatory impact was unnecessary to establish a section
2 violation. Assuming instead that a finding of discriminatory intent
would suffice, the district court found that the challenged provi-
sions violated the Voting Rights Act because the Legislature en-
acted them with discriminatory intent. It declined to reach the
question whether the challenged provisions, considering the total-
ity of the circumstances, failed a discriminatory-results test.
The district court erred. A finding of discriminatory impact
is necessary and sufficient to establish a section 2 violation. Section
2’s “results test requires an inquiry into the totality of the circum-
stances.” Greater Birmingham, 992 F.3d at 1329 (quoting Chisom
v. Roemer, 501 U.S. 380, 394 (1991)). A violation exists if “members
of a protected class ‘have less opportunity than other members of
the electorate to participate in the political process and to elect rep-
resentatives of their choice.’” Chisom, 501 U.S. at 388 (quoting lan-
guage now codified at 52 U.S.C. § 10301(b)). A finding of discrimi-
natory intent alone will not suffice.
Our precedents respecting the proper standard are admit-
tedly inconsistent. In Johnson v. DeSoto County Board of Commis-
sioners, we held that the “statutory language expressly requires a
showing of discriminatory results, and it admits of no exception for
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58 Opinion of the Court 22-11143
situations in which there is discriminatory intent but no discrimi-
natory results.” 72 F.3d 1556, 1563 (11th Cir. 1996). The next year,
without purporting to overrule Johnson, we held that a “statutory
claim under [s]ection 2 may be established by proof that the chal-
lenged methods of election either have a discriminatory purpose or
effect.” Askew v. City of Rome, 127 F.3d 1355, 1373 (11th Cir.
1997). Later, citing Johnson, we again held that “discriminatory in-
tent alone, in the absence of a showing of discriminatory effect, is
insufficient to establish a violation of [section] 2.” Brooks v. Miller,
158 F.3d 1230, 1237 (11th Cir. 1998). But in 2004, we held that a
finding of either discriminatory intent or discriminatory impact
would suffice. Osburn v. Cox, 369 F.3d 1283, 1289 (11th Cir. 2004).
We cited both Brooks—in which we had actually reached the op-
posite conclusion—and a portion of a 1994 en banc decision that
the Johnson Court had rejected as “dictum,” “joined only by two
. . . members of this Court,” and “inconsistent with [an] express
contrary holding by the Supreme Court.” Johnson, 72 F.3d at 1564
n.8; see Nipper v. Smith, 39 F.3d 1494, 1520 (11th Cir. 1994) (en
banc).
We never overruled Johnson, our earliest binding prece-
dent, so we are obliged by stare decisis to follow it. “Under our
prior panel precedent rule, we are bound to follow a prior panel’s
holding unless and until it is overruled or undermined to the point
of abrogation by an opinion of the Supreme Court or of this Court
sitting en banc.” United States v. Gillis, 938 F.3d 1181, 1198 (11th
Cir. 2019). Neither court has overruled or abrogated Johnson. And
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22-11143 Opinion of the Court 59
“when we have conflicting precedents, we follow our oldest prec-
edent.” CSX Transp., Inc. v. Gen. Mills, Inc., 846 F.3d 1333, 1338
(11th Cir. 2017) (citation omitted) (alterations adopted).
Johnson also satisfies Supreme Court precedent. The Su-
preme Court has stated that under section 2 as amended, “[t]he
‘right’ question . . . is whether ‘as a result of the challenged practice
or structure plaintiffs do not have an equal opportunity to partici-
pate in the political processes and to elect candidates of their
choice.’” Gingles, 478 U.S. at 44 (citations omitted); see also Voino-
vich v. Quilter, 507 U.S. 146, 157 (1993) (“We hold only that, under
[section] 2 of the Voting Rights Act . . . plaintiffs can prevail on a
dilution claim only if they show that . . . the State’s apportionment
scheme has the effect of diminishing or abridging the voting
strength of the protected class.” (emphasis added)). So, a finding of
discriminatory impact is necessary to establish a violation of section
2 of the Voting Rights Act. Our decisions in Askew and Osburn are
not—and never were—good law to the extent that they purported
to hold otherwise.
None of the challenged provisions violates section 2 of the
Voting Rights Act. For the reasons already explained, the record
does not support a finding that the drop-box provision or solicita-
tion provision will have a disparate impact on black voters. And
although there is some evidence that the registration-delivery pro-
vision will have a disparate impact, it is not enough to meet section
2’s high standard. The test would require a finding that, because of
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60 Opinion of the Court 22-11143
the registration-delivery provision, “political processes leading to
. . . election in [Florida] . . . are not equally open to” black voters
“in that [they] have less opportunity than other members of the
electorate to participate in the political process and to elect repre-
sentatives of their choice.” Wis. Legislature v. Wis. Elections
Comm’n, 142 S. Ct. 1245, 1248 (2022) (quoting 52 U.S.C.
§ 10301(b)). The record does not come close to meeting that stand-
ard. So, we reverse the decision of the district court in relevant part.
C. The District Court Erred by Subjecting Florida to Preclearance
Under Section 3(c) of the Voting Rights Act.
The organizations requested—and the district court or-
dered—that Florida be subjected to a preclearance requirement un-
der section 3(c) of the Voting Rights Act. Section 3(c) provides that
if “the court finds that violations of the [F]ourteenth or [F]ifteenth
[A]mendment justifying equitable relief have occurred . . . , the
court . . . shall retain jurisdiction for such period as it may deem
appropriate” and exercise preclearance power over new laws re-
lated to voting. 52 U.S.C. § 10302(c). After finding violations, the
district court determined that that “without preclearance, Florida
[could] pass unconstitutional restrictions . . . with impunity.” So, it
subjected Florida to preclearance for ten years with respect to any
“law or regulation governing [third-party voter-registration organ-
izations], drop boxes, or ‘line warming’ activities.”
Preclearance may not be imposed under these circum-
stances. Neither this Court nor the Supreme Court has ever
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22-11143 Opinion of the Court 61
meaningfully interpreted section 3 of the Voting Rights Act of 1965.
But the Supreme Court has described the remedy of preclearance
as “a drastic departure from basic principles of federalism,” justified
by the “exceptional conditions” Congress confronted when the law
was enacted. Shelby Cnty., 570 U.S. at 535. And the text of the stat-
ute is unequivocal: section 3 only applies “to enforce the voting
guarantees of the [F]ourteenth or [F]ifteenth [A]mendment.” 52
U.S.C. § 10302(c) (emphasis added). To succeed on a Fourteenth or
Fifteenth Amendment claim, the organizations needed to prove
discriminatory intent as well as discriminatory effect. See Greater
Birmingham, 992 F.3d at 1321. Because the Florida Legislature did
not adopt the challenged provisions with an intent to discriminate,
the decision to impose preclearance pursuant to section 3(c) of the
Voting Rights Act was incorrect as a matter of law. So, we reverse
this decision of the district court.
D. The District Court Correctly Concluded that the Solicitation
Provision Is Unconstitutionally Vague.
S.B. 90 expanded the scope of the prohibition against solicit-
ing voters who are waiting in line to cast their votes. The new stat-
ute provides that “[n]o person, political committee, or other group
or organization may solicit voters inside the polling place or within
150 feet of a secure ballot intake station or the entrance to any
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62 Opinion of the Court 22-11143
polling place.” FLA. STAT. § 102.031(4)(a). It defines “solicitation” to
include the following several activities:
seeking or attempting to seek any vote, fact, opinion,
or contribution; distributing or attempting to distrib-
ute any political or campaign material, leaflet, or
handout; conducting a poll except as specified in this
paragraph; seeking or attempting to seek a signature
on any petition; selling or attempting to sell any item;
and engaging in any activity with the intent to influ-
ence or effect of influencing a voter.
Id. § 102.031(4)(b). At issue is the constitutionality of the final
clause, which prohibits “engaging in any activity with the intent to
influence or effect of influencing a voter.” Id. The district court de-
termined that this clause was unconstitutionally vague and over-
broad.
Before reaching the merits, we address the organizations’
contention that the state officials and Republican Party intervenors
lack standing to appeal the district court’s invalidation of the solic-
itation provision. This Court has an obligation to ensure that its
jurisdiction is proper “at each stage of the proceedings.” Cuban
Am. Bar Ass’n, Inc. v. Christopher, 43 F.3d 1412, 1422 (11th Cir.
1995) (citation omitted). The organizations state that “[t]he District
Court’s judgment . . . enjoined only one defendant from enforcing
the Solicitation Definition: Bay County Supervisor of Elections
Mark Andersen.” Supervisor Andersen did not appeal, and the Su-
pervisors who did appeal are not enjoined and are thus free to
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22-11143 Opinion of the Court 63
enforce the provision, according to the organizations. And the Sec-
retary of State, they assert, “has no role in enforcing the Solicitation
Definition.”
The Republican Party intervenors respond that “[b]eing
bound by an injunction is sufficient for appellant standing, but it’s
not necessary.” They cite West Virginia v. Environmental Protec-
tion Agency for the proposition that standing on appeal can be
based on the effect of the judgment below:
In considering a litigant’s standing to appeal, the ques-
tion is whether it has experienced an injury “fairly
traceable to the judgment below.” If so, and a “favor-
able ruling” from the appellate court “would redress
that injury,” then the appellant has a cognizable Arti-
cle III stake.
142 S. Ct. 2587, 2606 (2022) (internal citations omitted) (quoting
Food Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 2356, 2362
(2019)) (alterations adopted).
The Secretary has standing to appeal the judgment with re-
spect to the solicitation provision. He need not be bound by an in-
junction nor even bear the primary responsibility for enforcing the
solicitation provision to enjoy the requisite interest. The Secretary
is not merely a “concerned bystander” without a “personal stake in
defending [the law’s] enforcement.” Hollingsworth v. Perry, 570
U.S. 693, 707 (2013) (citations and internal quotation marks omit-
ted). He has a statutory obligation to uniformly administer
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64 Opinion of the Court 22-11143
elections according to the election code adopted by the Legislature.
See FLA. STAT. § 97.012(1).
What is more, the Attorney General is a defendant in this
suit. Although she sought to have the claims against her dismissed,
the district court denied her motion. So, she remained a defendant.
The Attorney General appealed the judgment, as the organizations
acknowledge. And the Attorney General has the authority to “ap-
pear in and attend to, in behalf of the state, all suits or prosecutions,
civil or criminal or in equity, in which the state may be a party, or
in anywise interested” in federal court. FLA. STAT. § 16.01(4)–(5).
She is empowered to represent Florida in this action.
Federal courts must respect states’ strong interests in de-
fending the constitutionality of their laws. Here, if the district
court’s decision “is left undisturbed, [Florida] will be bound by the
conclusive adjudication that [the solicitation provision] is unconsti-
tutional.” Maine v. Taylor, 477 U.S. 131, 137 (1986). “[A] State
clearly has a legitimate interest in the continued enforceability of
its own statutes.” Id. In fact, the Supreme Court recently cautioned
that “federal courts should rarely question that a State’s interests
will be practically impaired or impeded if its duly authorized repre-
sentatives are excluded from participating in federal litigation chal-
lenging state law.” Berger v. N.C. State Conf. of the NAACP, 142
S. Ct. 2191, 2201 (2022) (explaining why state officials should be
permitted to intervene in a case). The State’s participation facili-
tates “a full and fair adversarial testing of [its] interests and argu-
ments.” Id.USCA11 Case: 22-11143 Document: 193-1 Date Filed: 04/27/2023 Page: 65 of 79
22-11143 Opinion of the Court 65
We now turn to the merits. The district court found that the
language of the solicitation provision, “on its face, does not provide
anyone fair notice of what’s prohibited, nor does it provide precise
guidance to the law’s enforcers to prevent arbitrary or discrimina-
tory enforcement.” As a result, it declared the provision’s “ban on
‘engaging in any activity with the intent to influence or effect of
influencing a voter’ [to be] unconstitutionally vague under the Due
Process Clause of the Fourteenth Amendment.” (Quoting FLA.
STAT. § 102.031(4)(b)).
The Supreme Court has held that a statute may be “imper-
missibly vague” for two reasons. Hill v. Colorado, 530 U.S. 703, 732
(2000). “First, if it fails to provide people of ordinary intelligence a
reasonable opportunity to understand what conduct it prohibits.
Second, if it authorizes or even encourages arbitrary and discrimi-
natory enforcement.” Id. Courts should not lightly declare laws to
be void for vagueness. “Facial vagueness occurs when a statute is
utterly devoid of a standard of conduct so that it simply has no core
and cannot be validly applied to any conduct.” High Ol’ Times, Inc.
v. Busbee, 673 F.2d 1225, 1228 (11th Cir. 1982) (internal quotation
marks omitted). If a law “implicates no constitutionally protected
conduct,” a court “should uphold [a facial vagueness] challenge . . .
if the enactment is impermissibly vague in all of its applications.”
Vill. of Hoffman Ests. v. Flipside, Hoffman Ests., Inc., 455 U.S. 489,
494–95 (1982).
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66 Opinion of the Court 22-11143
The challenged clause contains two operative phrases. One
prohibits “engaging in any activity with the intent to influence . . .
a voter.” FLA. STAT. § 102.031(4)(b). The other prohibits “engaging
in any activity with the . . . effect of influencing a voter.” Id. The
former is constitutionally permissible, but the latter is unconstitu-
tionally vague.
The first half of the challenged clause prohibits acting with
intent to “influence a voter,” a phrase that is not devoid of content.
Definitions do not exist in a vacuum. The Republican Party inter-
venors persuasively point out that “[n]o one contends that a flat
ban on ‘soliciting voters’ would be vague.” And the meaning of
“solicitation” clarifies the meaning of “influence.” Black’s Law Dic-
tionary defines “solicitation,” in relevant part, as “[t]he act or an
instance of requesting or seeking to obtain something; a request or
petition.” Solicitation, BLACK’S LAW DICTIONARY (11th ed. 2019).
The statute does not prohibit “any activity [conducted] with the
intent to influence . . . a voter”; instead, it prohibits any activity that
qualifies as solicitation that is conducted “with the intent to influ-
ence . . . a voter.” See FLA. STAT. § 102.031(4)(b). The plain mean-
ing of “solicitation” is definite enough to give notice to ordinary
citizens and to prevent arbitrary enforcement.
And the phrase does not prohibit all activities that influence
voters; it instead prohibits engaging in activity with the intent to
influence a voter. We have explained that “the inclusion of a spe-
cific mens rea element may alleviate a law’s vagueness with respect
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22-11143 Opinion of the Court 67
to providing fair notice to the accused that certain conduct is pro-
hibited.” High Ol’ Times, 673 F.2d at 1229; see also Colautti v.
Franklin, 439 U.S. 379, 395 (1979) (collecting cases), abrogated on
other grounds by Dobbs v. Jackson Women’s Health Org., 142 S.
Ct. 2228 (2022). The mens rea element also undermines any asser-
tion that this phrase is unconstitutionally vague.
The second half of the challenged clause—which prohibits
“engaging in any activity with the . . . effect of influencing a
voter”—presents a different question. See FLA. STAT.
§ 102.031(4)(b) (emphasis added). How is an individual seeking to
comply with the law to anticipate whether his or her actions will
have the subjective effect of influencing a voter? Knowing what it
means to influence a voter does not bestow the ability to predict
which actions will influence a voter. As a result, the district court
correctly determined that this phrase in the solicitation provision
“both fails to put Floridians of ordinary intelligence on notice of
what acts it criminalizes and encourages arbitrary and discrimina-
tory enforcement, making this provision vague to the point of un-
constitutionality.” We need not address whether the organizations
are engaging in constitutionally protected conduct because the
phrase “is impermissibly vague in all of its applications.” Vill. of
Hoffman Ests., 455 U.S. at 494–95.
The Supreme Court has held other laws unconstitutionally
vague for similar reasons. For example, the organizations aptly
compare the phrase at issue to an ordinance that prohibited
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68 Opinion of the Court 22-11143
conduct that was “annoying to persons passing by.” Coates v. City
of Cincinnati, 402 U.S. 611, 612 (1971). According to the Supreme
Court, because “[c]onduct that annoys some people does not an-
noy others,” the ordinance specified “no standard of conduct . . . at
all.” Id. at 614. Likewise, a person of reasonable intelligence might
struggle to identify in advance what conduct would have the “ef-
fect of influencing” a voter. Some supervisors of elections also
stated that they and their staff would struggle to make the requisite
judgment call, which could lead to arbitrary enforcement.
The Republican Party intervenors’ arguments to the con-
trary are unavailing. They contend that “[w]hether someone’s con-
duct had th[e] effect” of influencing “a voter is a true-or-false deter-
mination.” “While it might be difficult to prove that effect in many
cases (unless a specific voter comes forward and testifies),” they ar-
gue, “that difficulty does not implicate the vagueness doctrine.”
They invoke the admonition that “[w]hat renders a statute vague
is not the possibility that it will sometimes be difficult to determine
whether the incriminating fact it establishes has been proved; but
rather the indeterminacy of precisely what that fact is.” United
States v. Williams, 553 U.S. 285, 306 (2008). But this argument all
but concedes the key point. If the best—or perhaps only—way to
determine what activity has the “effect of influencing” a voter is to
ask the voter, then the question of what activity has that effect is a
“wholly subjective judgment[] without statutory definition[], nar-
rowing context, or settled legal meaning[].” Id.USCA11 Case: 22-11143 Document: 193-1 Date Filed: 04/27/2023 Page: 69 of 79
22-11143 Opinion of the Court 69
The intervenors’ remaining arguments are also unpersua-
sive. We will not rely on the assumption that a state court enforc-
ing the law would impose a mens rea requirement, apply the law
with lenity, and “require that the defendant’s conduct . . . had th[e]
natural and probable effect” of influencing the voter. The purpose
of the vagueness doctrine is to prevent a person of “ordinary intel-
ligence” from being subject to a law that is so vague he cannot de-
termine “what conduct it prohibits” or that authorizes “arbitrary
and discriminatory enforcement.” Hill, 530 U.S. at 732. Although
close cases should be “addressed, not by the doctrine of vagueness,
but by the requirement of proof beyond a reasonable doubt,” Wil-
liams, 553 U.S. at 306, the promise of due process later on does not
obliterate the vagueness doctrine altogether.
Next, we consider whether the solicitation provision is over-
broad. We have already held that the second phrase in the chal-
lenged clause is unconstitutionally vague, so we need not reach the
question of overbreadth as to the second phrase.
The first phrase—which prohibits engaging in activity with
the “intent to influence” a voter—is not overbroad. A law is uncon-
stitutionally overbroad if its “application to protected speech [is]
substantial, not only in an absolute sense, but also relative to the
scope of the law’s plainly legitimate applications.” Virginia v.
Hicks, 539 U.S. 113, 119–20 (2003) (internal quotation marks omit-
ted). Because the first phrase is not ambiguous, it does not “con-
sume[] vast swaths of core First Amendment speech,” contrary to
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70 Opinion of the Court 22-11143
the district court’s ruling. And both this Court and the Supreme
Court have upheld various restrictions, even of First Amendment
activity, around polling places. See generally Minn. Voters All. v.
Mansky, 138 S. Ct. 1876, 1883 (2018) (“Today, all 50 States and the
District of Columbia have laws curbing various forms of speech in
and around polling places on Election Day.”); Citizens for Police
Accountability, 572 F.3d at 1221 (recognizing “our country’s long
history of election regulation, the consensus emerging from that
history, and the practical need to keep voters and voting undis-
turbed”). The phrase’s “application to protected speech” is not
“substantial,” particularly “relative to the scope of the law’s plainly
legitimate applications.” Hicks, 539 U.S. at 119–20 (citation omit-
ted).
Finally, we hold that the second phrase can be severed from
the rest of the statute. The district court determined that the entire
challenged clause—“engaging in any activity with the intent to in-
fluence or effect of influencing a voter”—was severable from the
rest of the statute. Although we hold that only the phrase “or effect
of influencing” is unconstitutionally vague, we conclude that this
phrase is severable from the whole of the statute. Under Florida
law, an unconstitutional provision is severable “so long as four re-
quirements are met”:
(1) the unconstitutional provisions can be separated
from the remaining valid provisions, (2) the legislative
purpose expressed in the valid provisions can be ac-
complished independently of those which are void, (3)
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22-11143 Opinion of the Court 71
the good and the bad features are not so inseparable in
substance that it can be said that the Legislature would
have passed the one without the other and, (4) an act
complete in itself remains after the invalid provisions
are stricken.
Jones v. Governor of Fla., 950 F.3d 795, 831 (11th Cir. 2020) (quot-
ing Smith v. Dep’t of Ins., 507 So. 2d 1080, 1089–90 (Fla. 1987)). The
second phrase can be separated from the rest of the statute without
undermining the legislative purpose or the coherence of the act.
And the prohibition of engaging in activity with the “intent to in-
fluence” a voter stands alone; it in no way depends on the reference
to the “effect of influencing” a voter for its meaning or operation.
So, we affirm in part and reverse in part the judgment of the district
court.
E. We Vacate the Judgment Concerning the Registration-Dis-
claimer Provision.
The district court ruled that the registration-disclaimer pro-
vision violated the First Amendment by compelling speech and
granted a permanent injunction against its enforcement. Soon after
an appeal was filed, the Florida Legislature repealed the registra-
tion-disclaimer provision. See S.B. 524, 124th Leg. Sess. § 7 (Fla.
2022). The parties agree that any appeal of the district court’s judg-
ment as to the constitutionality of the registration-disclaimer
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72 Opinion of the Court 22-11143
provision is now moot. But they disagree regarding whether the
judgment should be vacated.
The “ordinary practice in disposing of a case that has be-
come moot on appeal is to vacate the judgment with directions to
dismiss.” Lewis v. Cont’l Bank Corp., 494 U.S. 472, 482 (1990); see
United States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950). But the
organizations correctly point out that an exception to this doctrine
exists. “Where mootness results from settlement, . . . the losing
party has voluntarily forfeited his legal remedy by the ordinary pro-
cesses of appeal or certiorari, thereby surrendering his claim to the
equitable remedy of vacatur.” U.S. Bancorp Mortg. Co. v. Bonner
Mall P’ship, 513 U.S. 18, 25 (1994). In those cases, whether vacatur
should be granted is an equitable determination, “and exceptional
circumstances may conceivably counsel in favor of such a course.”
Id. at 29. But the Supreme Court’s decision in Bancorp did not alter
the rule that vacatur is generally proper when the mootness re-
sulted from “circumstances unattributable to any of the parties.”
Id. at 23 (citation omitted).
The Florida Legislature repealed the registration-disclaimer
provision through a bill that the Governor signed. Neither the Leg-
islature nor the Governor is party to this appeal. The organizations
nonetheless argue that vacatur is not warranted because “the cir-
cumstances surrounding [S.B.] 524’s repeal of the Registration Dis-
claimer [provision] suggest that Appellants counseled the Legisla-
ture to repeal the provision when it became obvious that
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22-11143 Opinion of the Court 73
Defendants would lose on that provision by the end of the presen-
tation of evidence at trial.”
We must decide whether to treat the actions of the Legisla-
ture and Governor as solely their own or whether to inquire into
what influence parties to this appeal might have had. This set of
facts—a challenged law altered or repealed by a legislative body
while an appeal is pending—is not unusual. Supreme Court prece-
dent, the weight of authority in our sister circuits, and separation-
of-powers principles all support attributing the passage of legisla-
tion only to the officials with the constitutional authority to partic-
ipate in the legislative process in Florida: members of the Legisla-
ture and the Governor.
Supreme Court precedent suggests that we should not at-
tribute the actions of unrelated, nonparty government officials to
other officials who are party to litigation. For instance, after the
Court granted certiorari in a recent case, the State and City of New
York amended their firearms laws to, in effect, afford “the precise
relief that petitioners requested.” N.Y. State Rifle & Pistol Ass’n,
Inc. v. City of N.Y., 140 S. Ct. 1525, 1526 (2020). The Court vacated
the decision of the Court of Appeals without even mentioning Ban-
corp. Id. at 1527. Bancorp itself “express[ed] no view on Mun-
singwear’s implicit conclusion that repeal of administrative regula-
tions cannot fairly be attributed to the Executive Branch when it
litigates in the name of the United States.” Bancorp, 513 U.S. at 25
n.3. If the Supreme Court reads Munsingwear to caution against
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74 Opinion of the Court 22-11143
attributing the actions of officials within the same branch of gov-
ernment to one another, it is hard to imagine how it could be
proper to attribute the actions of officials within different branches
of government to one another.
And our sister circuits have, in similar contexts, distin-
guished between the executive officials who are party to a suit chal-
lenging a law and the legislators whose official acts mooted the ap-
peal. Cf. Chem. Producers & Distribs. Ass’n v. Helliker, 463 F.3d
871, 879 (9th Cir. 2006) (collecting relevant cases from the Third,
Fourth, and D.C. Circuits), overruled on other grounds by Bd. of
Trs. of Glazing Health & Welfare Tr. v. Chambers, 941 F.3d 1195,
1199 (9th Cir. 2019); see also, e.g., Valero Terrestrial Corp. v. Paige,
211 F.3d 112, 121 (4th Cir. 2000) (“In this case, the mootness was,
as noted, caused by the state legislature’s amendment of statutory
provisions that it had earlier enacted, and not by the actions of any
of the defendants before this court, all of whom are state executive
officials, none of whom is the Governor.”).
The two Fifth Circuit precedents that the organizations cite
do not compel a contrary conclusion. In one case, an official of the
defendant county placed a controversial statue in storage, mooting
the action. Staley v. Harris Cnty., 485 F.3d 305, 307, 313 (5th Cir.
2007) (en banc). But in that case, the distinction between branches
of government was not present. In the other case, the governor
was a party to the action mooted by new legislation. Hall v. Loui-
siana, 884 F.3d 546, 553 (5th Cir. 2018). Even though he signed the
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22-11143 Opinion of the Court 75
new law, the court declined to attribute “fault” to the governor be-
cause “there [was] no evidence that he was the moving force be-
hind the legislation.” Id. Because the governor was part of the leg-
islative process, under Bancorp, it was reasonable for the Fifth Cir-
cuit at least to examine his overall role in the adoption of the new
law. Similarly, the Eighth Circuit—which avoided reaching the
question “whether a governor who signs the mooting legislation
into law is at ‘fault’ for vacatur purposes”—stated that “the South
Dakota attorney general and secretary of state apparently had
nothing to do with [the relevant law’s] enactment.” SD Voice v.
Noem, 987 F.3d 1186, 1190 (8th Cir. 2021).
The decision that most plausibly favors the organizations’
position comes from the D.C. Circuit. It suggested the possibility
that legislative action could be attributed to a member of another
branch of government if “additional evidence of an illegitimate mo-
tive” exists. Nat’l Black Police Ass’n v. District of Columbia, 108
F.3d 346, 354 (D.C. Cir. 1997). But the D.C. Circuit still recognized
that, in general, the “presumption of integrity that attaches to leg-
islative action and the difficulties that separation of powers creates
for attributing one branch’s actions to another support not apply-
ing the Bancorp rule to situations where the party seeking vacatur
is the government and mootness results on appeal because of leg-
islative action.” Id.Finally, separation-of-powers principles favor not attrib-
uting the acts of the legislature and governor to other state officials.
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76 Opinion of the Court 22-11143
As the Ninth Circuit explained, “[t]he principle that legislation is
attributed to the legislature alone is inherent in our separation of
powers.” Chem. Producers & Distribs., 463 F.3d at 879. It does not
matter what the state officials may have “counseled the Legisla-
ture” to do, as the organizations suggest. Cf. id. (“Lobbying Con-
gress or a state legislature cannot be viewed as ‘causing’ subsequent
legislation for purposes of the vacatur inquiry. Attributing the ac-
tions of a legislature to third parties rather than to the legislature
itself is of dubious legitimacy . . . .”); Rio Grande Silvery Minnow
v. Bureau of Reclamation, 601 F.3d 1096, 1131 (10th Cir. 2010)
(“Even assuming that the appellant[] [private organizations] ac-
tively lobbied the New Mexico congressional delegation, . . . the
case became moot as a consequence of the actions of a third party,
Congress.”). We must presume that state legislators carry out their
duties according to their own judgment.
The organizations assert that vacatur is improper because
the state officials and Republican Party intervenors have “shown
no compelling reason in favor of vacatur” that would cause an eq-
uitable analysis to tip in their favor. They cite Bancorp for the prop-
osition that “[j]udicial precedents are . . . valuable to the legal com-
munity . . . and should stand unless a court concludes that the pub-
lic interest would be served by a vacatur.” Bancorp, 513 U.S. at 26(citation omitted). But they misread the decision.
In Bancorp, “[t]he parties . . . agree[d] that vacatur must be
decreed for those judgments whose review is, in the words of
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22-11143 Opinion of the Court 77
Munsingwear, ‘prevented through happenstance’—that is to say,
where a controversy presented for review has ‘become moot due
to circumstances unattributable to any of the parties.’” Id. at 23(quoting Karcher v. May, 484 U.S. 72, 82–83 (1987)) (emphasis
added). The only “contested question [was] whether courts should
vacate where mootness results from a settlement.” Id. In that con-
text and analogous ones, allowing the judgment to stand should be
the default approach based on equitable considerations. But if a
general interest in providing guidance to the legal community al-
ways sufficed, the doctrine of Munsingwear vacatur would be all
but a nullity. When the parties did not cause the mootness, equita-
ble considerations tip toward vacatur because those parties “ought
not in fairness be forced to acquiesce in the judgment.” Id. at 25.
Because the repeal of the registration-disclaimer provision is “un-
attributable to any of the parties” to this case, see id. at 23 (citation
omitted), we vacate the judgment of the district court in relevant
part.
IV. CONCLUSION
We REVERSE the judgment that the drop-box, solicitation,
and registration-delivery provisions violate the Fourteenth and Fif-
teenth Amendments and section 2 of the Voting Rights Act. We
also REVERSE the imposition of a preclearance requirement under
section 3(c) of the Voting Rights Act. We AFFIRM the judgment
declaring unconstitutionally vague the second phrase in the solici-
tation provision’s challenged clause, but we REVERSE the judg-
ment invalidating the first phrase in the clause. We VACATE the
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78 Opinion of the Court 22-11143
judgment finding the registration-disclaimer provision unconstitu-
tional. And we REMAND to the district court for further proceed-
ings consistent with this opinion.
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22-11143 JILL PRYOR, J., dissenting 1
JILL PRYOR, Circuit Judge, dissenting:
I would affirm the district court’s injunction prohibiting the
enforcement of S.B. 90’s drop-box, solicitation, and registration-de-
livery provisions. In my view, the district court, in its thorough and
well-reasoned order, committed no reversible error when it con-
cluded that these provisions violated the Fourteenth and Fifteenth
Amendments to the Constitution, as well as section 2 of the Voting
Rights Act. Given these violations, the district court did not abuse
its discretion when it ordered the State of Florida to submit to pre-
clearance under section 3 of the Voting Rights Act. I respectfully
dissent. 1
1 Because I conclude that the solicitation provision violated the Fourteenth
and Fifteenth Amendments and section 2 of the Voting Rights Act, I would
not reach the vagueness or overbreadth challenges.
I agree with the majority that the challenge to the registration-disclaimer pro-
vision is moot and that the portion of the district court’s judgment pertaining
to this challenge should be vacated.