A federal judge in Florida has clapped back against that state’s new restrictive election law and more generally, voter suppression laws that threaten to undermine our representative democracy. In an opinion that spans almost 300 pages, U.S. District Judge Mark Walker for the Northern District of Florida struck down portions of the state’s election law as unconstitutional and, perhaps more importantly, took the rare step of placing the state under preclearance protection for certain changes it may want to make to its election laws.
This remedy is only possible where a judge finds a state’s history of discriminatory voting laws is so egregious that the state cannot be trusted.
This means that if, anytime in the next decade, Florida wants to alter its election laws, it must first get permission from a federal court. This rarely used remedy is only possible where a judge finds that a state’s history of discriminatory voting laws is so egregious that it cannot be trusted to enact its own voting laws and must first check in with the court.
Walker’s opinion is the first judicial opinion to strike down portions of a restrictive voting law since restrictive voting laws began sweeping the nation after the 2020 elections and the subsequent lie that there was widespread voter fraud. The judge’s opinion is a stinging rebuke to an onslaught of voter suppression laws and the judicial decisions that have condoned them. The opinion reads more like a treatise on the importance of voting rights, the discrimination and excessive partisanship of lawmakers who have trampled on them, and the acquiescence and abdication of responsibility of judges who have happily allowed them to get away with it.
Almost a year ago, Florida enacted a law meant to make it harder for Black people to vote. That, at least, is Walker’s conclusion. As he put it in his ruling, when “the Florida Legislature passes law after law disproportionately burdening Black voters, this Court can no longer accept that the effect is incidental.” Florida’s election law, among other things, limited the use of ballot drop boxes, placed new restrictions on organizations engaged in voter registration, and placed limits on so-called “line-warming” activities, such as providing food and water to people standing in line to vote.
Let’s be clear. Florida attempted to choke off additional routes to allow people to be eligible to vote and to exercise that right. Whenever our elected representatives try to make it harder for us to vote them out of office, we must ask them if they think throwing up barriers to vote is the only way they can keep power. While Republicans may claim these laws are about making voting more secure, we know this is, to use a legal phrase, complete hogwash.
Therefore, Walker’s opinion is important not just because of the remedy — placing Florida under preclearance — but also because he explicitly concluded that it engaged in intentional discrimination against Black voters. To be sure, as Walker concluded, the Florida GOP’s goal was to help its electoral chances and harm opportunities for Democrats to win in the Sunshine State. But the way the party went about that, as is so often the case, was to make it harder for certain likely Democrats to vote: namely, voters who are Black. “For the past 20 years, the majority in the Florida Legislature has attacked the voting rights of its Black constituents,” Walker concluded. He further found that “in the past 20 years, Florida has repeatedly sought to make voting tougher for Black voters because of their propensity to favor Democratic candidates.” This finding of not just discriminatory effect, but also discriminatory intent matters. And, luckily, such laws are still unconstitutional in this country, at least according to one federal judge. We need a two-pronged approach to fighting suppressive voting laws. Because Walker’s opinion correctly strikes down the GOP’s attempted power grab and defends minority voter rights, it seems doomed to be overturned. Florida will appeal the decision to the 11th Circuit Court of Appeals, a decidedly conservative leaning circuit where Florida’s argument that this law is necessary to protect elections (it is not) is likely to find a more favorable audience. And from there, the case could go to the Supreme Court, which is even more conservative than the court that gutted the Voting Rights Act almost a decade ago. As I wrote last year, in the wake of the passage of Florida’s law, we need a two-pronged approach to fighting suppressive voting laws like Florida’s law. First, there continues to be an urgent need for Congress to pass federal voting rights protections. This was true a year ago; it is even more true now. We have lost our federal floor of protection, and the actions of states like Florida show how much we need it. Not every federal judge will strike back against voter suppression laws as Walker has done. More significantly, his decision appears likely to be overturned by conservative appellate courts that read the Constitution and the Voting Rights Act as hollow protections for voters which can’t be used to prevent Florida’s attempted voter suppression. Second, we should take the unusual step of stripping the Supreme Court, and perhaps all federal courts, of the ability to weigh in on that new federal law. This would make the law unreviewable by federal courts. Jurisdiction stripping is and should be a rarely used remedy, but our democracy cannot survive if our nation’s highest court continues to allow states to trample on the right that we use to protect other rights: the right to vote.
Jessica Levinson is a Loyola Law School professor and MS NOW columnist. 
