One Federal Judge’s Primal Scream About The Dramatic Erosion Of Voting Rights

When a judge writes nearly 300 pages in an order that may well be quickly overturned, they’re trying to send a message beyond the judicial action itself. 

That’s what U.S. District Judge Mark E. Walker of the Northern District of Florida did on Thursday, with a ruling knocking down several new Republican restrictions on voter registration groups, ballot drop boxes, and “line-warming,” or giving food and water to people waiting in line to vote. 

Throughout the searing ruling, the judge, an Obama appointee, also retold the history of racist terrorism and voter suppression in Florida and tied that history to the U.S. Supreme Court’s modern attacks on voting rights. 

From the very start, Walker signaled that his ruling was about more than one state law: In blocking most of SB 90’s elements, he said, “this Court recognizes that the right to vote, and the [Voting Rights Act] particularly, are under siege.” Then, he quoted Martin Luther King Jr. comparing the right to vote to the right to prayer.

Walker’s broadside “is a reminder that the Voting Rights Act is NOT dead,” said Tammy Patrick, senior advisor to the elections program at Democracy Fund. 

“Chief Judge Walker’s opinion sounds the alarm that our democracy is moving in the wrong direction,” said Travis Crum, a law professor at Washington University in St. Louis who’s quoted in the ruling. “His opinion is expressing frustration with a judiciary that has eviscerated the Voting Rights Act and refused to call a spade a spade when there is a clear partisan and racial motive to so-called ‘election integrity’ laws.”

Racist History Lives On, Judge Says

To illustrate his finding that SB 90 was enacted with discriminatory intent against Black voters in Florida, Walker went back more than a century, to Reconstruction. Even after the federal government forced the state to accept Black residents’ right to vote, “Florida did everything it could to prevent those citizens from voting,” including instituting proto-identification requirements and de facto literacy tests. 

And it worked: Between 1888 and 1892, the judge noted, the Black voting rate dropped from 62 to 11 percent. In 1920, dozens of Black people were killed in a massacre in Ocoee after a Black man attempted to vote.

Armed with that history, the judge took direct aim at the U.S. Supreme Court, which in 2013 gutted the Voting Rights Act.

“What is this court to make of this history? To be sure, there are those who suggest that we live in a post-racial society,” the judge wrote, citing the court’s 2013 Shelby County decision. “But that is simply not so.” 

Florida’s history of racism, he said, has continued: Over the past 20 years, Florida Republicans have repeatedly suppressed the Black vote, including with voter roll purges, limiting early voting days, and severely restricting a voter-approved ex-felon re-enfranchisement amendment. 

“Once is an accident, twice is a coincidence, three times is a pattern,” the judge wrote, stating the central point of his ruling. “At some point, when the Florida Legislature passes law after law disproportionately burdening Black voters, this Court can no longer accept that the effect is incidental.” 

Without Discriminatory Intent, Challenged Law Wouldn’t Exist

The modern animus for SB 90’s new restrictions, the judge found, came from the 2020 elections. 

Over dozens of pages in the middle of his ruling, Walker collected evidence showing that the law’s restrictions would specifically and disproportionately hurt Black voters. 

Republicans’ motivation, the judge said, was clear in their discussion of voting by mail: In 2020, Democrats overtook Republicans in that practice. And Republicans, in turn, tried to “reset” the process for requesting ballots by mail. 

When the chairman of the Florida Republican found out that Republicans’ bill wouldn’t throw out existing vote-by-mail requests, and instead only require voters to continuously renew them every two years going forward, he sent a text message that was reproduced in the judge’s ruling: “That is going to be devastating.” 

That reasoning — the need to cut down on Democrats’ vote by mail advantage — “is just about the only justification for the VBM request provision this Court has heard that makes any sense,” the judge wrote.

Absent an intent to discriminate, he said separately, the legislature would not have passed key provisions of the law. 

‘That, The Law Does Not Permit‘

Walker’s decision will almost certainly not be the final word on the matter, given that Florida Republicans can appeal to the generally conservative 11th U.S. Circuit Court of Appeals and the uber-conservative U.S. Supreme Court.

Nonetheless, Walker ended his decision aggressively, opting to “bail-in” Florida to federal preclearance, requiring that certain changes to the state’s voting laws now need federal approval for the next 10 years. 

The judge concluded the opinion not with a discussion of law, but again by quoting Martin Luther King Jr.: Three years after his famous “I Have A Dream” speech, King said “that dream that I had that day has in many points turned into a nightmare,” the judge noted. 

“Likewise, while this Court lauds the idealism of Dr. King’s dream in 1963, this Court is not so naïve to believe that the Florida Legislature would not pass an intentionally discriminatory law in 2021,” the judge wrote. 

Since the Civil War, he said, politicians have undermined Black Floridians’ voting rights — as part of a cynical effort to gain political advantage. 

“That,” Walker concluded, “the law does not permit.”