Last month, Florida Governor Ron DeSantis signed a new election law allowing him to run for president without resigning his seat as governor. But that’s not the most significant part of the new law. It also imposes several unnecessary restrictions on community organizations that engage in voter registration drives, making it even harder for such groups to register new voters. Voting rights advocates have already filed suit. The provisions may well be unlawful, even for a conservative Supreme Court.
As I recount in a new report for the Institute for Responsive Government, community voter registration activities have existed almost as long as states have required voter registration. If the Supreme Court looks to historical practice, as its recent cases have required, then it will find that such groups have long helped individuals register to vote without onerous restrictions such as the ones that Florida has now adopted.
The new Florida law adds numerous hurdles for community organizations engaging in voter registration. First, groups must re-register their organization with the state each election cycle to keep registering voters. They must deliver all voter registration forms within ten days instead of the 14-day deadline. A form submitted after that deadline is subject to a fine of $50 per day instead of the current flat one-time penalty of $50 for a violation. An organization could face a total fine of $250,000 per election cycle, up from $50,000—a daunting number for any group but one that could easily put smaller, local voter groups out of business.
Moreover, a voter registration group cannot pre-fill the voter registration form with any information about the voter before providing it to the individual. Non-citizens or people convicted of a felony related to elections or identity theft cannot handle voter registrations. (A few years ago, the Sunshine State electorate overwhelmingly approved a measure to restore voting rights to convicted felons, though the Republican-dominated state legislature then passed a law to cut back on that voter expansion.)
None of these provisions will improve voter registration or root out election fraud. There is no evidence in Florida of issues with voter registration organizations that merit requiring them to re-register with the state each election cycle. No problems are solved by reducing the days before a group must submit the registration forms to election officials. Extra fines for not precisely following the rules will produce little benefit to anyone. Instead, the new rules make it harder for voter registration organizations to exist at all.
As a coalition of voting rights organizations pointed out in opposition to the law, the new rules “are so harsh that the impact would be a gutting of community-based voter registration in Florida.” The law “would make it extremely difficult for nonprofit voter registration organizations to operate” and “would have the harshest impacts on smaller organizations who are closest to the communities they serve,” with a disproportionate impact on Black and Hispanic voters.
The negative impact is also likely unlawful—at least if the Supreme Court is consistent in its insistence that courts focus on history and tradition when analyzing new election rules. In the Court’s 2021 decision curtailing the reach of Section 2 of the Voting Rights Act—which prohibits voting rules that disproportionately harm minority voters—Justice Samuel Alito, writing for the majority, explained that “the degree to which a voting rule departs from what was standard practice when §2 was amended in 1982 is a relevant consideration. Because every voting rule imposes a burden of some sort, it is useful to have benchmarks with which the burdens imposed by a challenged rule can be compared.” There are good reasons to question that mode of analysis: Why should a practice that existed before 1982 insulate it today if it causes harm to voters? But even under Alito’s standard, a court should strike down the new Florida law.
Most states did not adopt a voter registration requirement until the late 19th and early 20th centuries. Initially, election officials simply put voters they knew on the voter registration rolls—essentially adopting automatic voter registration. But the system did not work well, and states began to require voters to register personally. Groups—especially those involved with women’s suffrage—assisted voters in registering. Political parties were also active in registering their supporters to vote. The newspapers of the 1920s are full of stories about community voter registration drives, many run by the League of Women Voters. States did not impose stringent rules or assess significant fines for these activities.
Organizations continued to engage in voter registration practices in the ensuing decades. The Civil Rights Movement—particularly the 1964 “Freedom Summer” in Mississippi—saw a historic wave of voter registration activities, with a constellation of organizations helping citizens register. One scholar wrote, “In helping register voters, [the groups] gave African-Americans a political voice.”
Congress sought to ease community-based voter registration when it enacted the National Voter Registration Act of 1993, also known as the “Motor-Voter” law, because it requires government agencies such as state departments of motor vehicles to offer voter registration opportunities. The law mandated a uniform federal form that states must accept for voter registration, making it easier for organizations to canvass voters. That law came after the 1982 benchmark that Justice Alito set in the recent Voting Rights Act case in which he focused on historical practices. Still, it shows Congress’s continued recognition of the importance of third-party voter registration organizations.
Community-based voter registration has a long pedigree. A law that essentially makes it impossible for these organizations to operate runs contrary to this history and tradition.
Of course, it makes sense for states to enact reasonable guardrails to root out actual fraud that might occur. The Florida bill goes well beyond election fraud, however, instead imposing burdens that will make organized voter registration extremely difficult in the state, with a particular burden on minority voters given the reach and focus of these organizations. A court that is serious about considering the long history of third-party voter registration will strike it down.
