In an order yesterday in League of Women Voters v. Florida Secretary of State, the Eleventh Circuit denied en banc review of a panel decision that held that several election reforms enacted by the Florida legislature did not violate the Fourteenth or Fifteenth Amendments of the Constitution or section 2 of the Voting Rights Act. The panel decision reversed a bombastic 288-page ruling by federal district judge Mark E. Walker.
Judge Charles Wilson, joined in full by Judge Jill Pryor and in one part by Judge Adalberto Jordan, dissented from the denial of rehearing en banc. In Part I of his opinion (a part not joined by Jordan), Wilson argued that the panel had misapplied the so-called Arlington Heights test, a multi-factor inquiry for evaluating claims of intentional discrimination set forth in a Supreme Court ruling in 1977. In Part II, he contended that the panel failed to defer to the district court’s factual findings.
Chief Judge William Pryor, the author of the panel opinion, responded to Wilson’s “histrionic dissent” (in an opinion that Judge Britt Grant and Judge Andrew Brasher joined). Some excerpts from Pryor’s response (citations omitted):
What are the supposedly racist provisions that the district judge enjoined officials from enforcing? They are unremarkable, race-neutral policies designed to bolster election security, maintain order at the polls, and ensure that voter registration forms are delivered on time. One provision requires election officials to monitor drop boxes in person and imposes standard hours for availability that correspond with early-voting hours. Another provision prohibits the solicitation of voters within 150 feet of a polling place or drop box…. A third provision requires third-party organizations that collect voter registration forms to deliver them to local election officials within 14 days of receipt and before the registration deadline.
The dissent accuses the panel of effectively prohibiting consideration of historical evidence when evaluating a legislature’s discriminatory intent. Not true. We did not hold that historical evidence is “irrelevant.” We instead applied settled precedent that courts must not allow “the old, outdated intentions of previous generations to taint Florida’s legislative action forevermore,” and that we must “look at the precise circumstances surrounding the passing of the law in question.”…
We faithfully applied controlling precedent when evaluating the effect of historical discrimination on present-day legislative intent. We gave little weight to distant history- from the Civil War era into the last century- because the Supreme Court has made clear that it offers little insight into the mindset of a legislature in 2021 other than in the manner of “original sin.”…
The dissent also accuses the panel of improperly dismissing the district judge’s finding that the Florida legislators’ justifications for S.B. 90 were a pretext for racist intent. But the legislators’ justifications—election security and preventing voter fraud—were presumptively lawful and credible, and the district court clearly erred by finding otherwise….
Finally, the dissent criticizes the panel for improperly reweighing statistical evidence cited by the district court. But if anything, findings based on statistical evidence lend themselves best to appellate review. When a factfinder reviews eyewitness testimony, the judge who personally observes the testimony is in a better position than an appellate judge to assess credibility. By contrast, mathematical facts are empirically provable and the best statistical analyses are replicable. If a district judge found that two plus two equals ten, we would lose no sleep over reversing for clear error, even if the judge relied on the testimony of a college mathematics professor.
The district judge’s factual findings were clearly erroneous because they relied on fatally flawed statistical analysis; both the underlying data and the inferences drawn therefrom were irredeemably defective. Not even an expert can draw reliable population-level conclusions by analyzing a sample that is materially unrepresentative. Yet the district judge relied on expert analyses of small, unrepresentative samples of voting behavior to draw broad inferences about the relationship between race and the effect of the challenged S.B. 90 provisions.