Florida asks appeals court to reinstate ban on noncitizen voter registration workers

ATLANTA (CN) — A federal appeals court is set to determine the constitutionality of a Florida law that bars noncitzens from registering U.S. citizens to vote.

The Sunshine State on Thursday asked the Eleventh Circuit to reverse a July 2023 order by U.S. District Court Judge Mark Walker enjoining the enforcement of two amendments to Florida’s statute regulating third-party voter registration organizations.

Walker found the provisions were discriminatory based on alienage, but the state, led by Republican secretary of state Cord Byrd, says the restrictions further the state's goal of election integrity and are protected by a "political function exception."

During oral arguments, Florida attorneys argued that the exclusion was meant to ensure voter registration applications can be delivered in a timely manner. Putting the applications in the hands of those with illegal or temporary status decreases the odds of that happening, attorney Mohammad Jazil, said because they may leave the county suddenly, at any time.

The three-judge circuit panel on Thursday pondered how to address the constitutionality of the statue, which doesn't differentiate between noncitizens who are legally residing in the U.S. and those who are illegal residents.

Jazil argued that the Equal Protection clause doesn't require a distinction between "citizens and aliens," and that the inequities of singling out legal resident aliens "simply aren’t applicable when registering voters just as they aren’t applicable when teachers and cops are concerned."

U.S. Circuit Judge Britt Grant, a Donald Trump appointee, appeared to be persuaded by this argument. He asked the plaintiff groups why their work shouldn't fall under the political function exception if it's as crucial to the democratic process as they claim.

Representing the Florida State Conference of Branches and Youth Units of the NAACP, attorney Abha Khanna argued that such an exception applies only to those in charge of policymaking decisions or who have "routine exercise of authority."

Individuals working for a voter registration organization, Khanna said, merely "deliver a form from one place to another — and that's it."

The plaintiff groups, and individual lawful Florida residents working for them, claim in their suit that the provisions not only discriminate, but also directly interfere with their employment by forcing them to halt communication efforts with potential voters and turn in applications out of fear of liability and prosecution.

In the lower federal court, Judge Walker also took issue with Florida's provision that prohibits “a person collecting voter registration applications on behalf of a third-party voter registration organization” from copying a voter application or retaining a voter’s personal information, such as their driver's license number, social security number or signature.

Walker said that language subjected individuals working for third-party voter registration organizations to felony prosecutions for retaining voter information without telling them "to whom the prohibition applies, what they can retain, and when they can retain it."

On Thursday attorney Robert Brent Ferguson, represented the League of Women Voters of Florida, who joined the case as an amicus curiae. He defended the lower court's position that the statue's retention provision is "unconstitutionally vague," since the provision doesn't clarify to whom it applies.

The circuit judges expressed their own confusion on that point. U.S. Circuit Judge Charles Wilson, a Bill Clinton appointee, asked the state's counsel if the law applies to an organization's supervisor or a U.S. Postal Service worker who delivers the applications.

Jazil said that it would not apply to either: The postal service is subjected to government oversight, and supervisors are endowed with a higher "level of trust" than the "minimum wage workers" collecting registration forms.

He added that the law does not apply to anyone "soliciting, collecting or handling" the voter registration application. But Wilson appeared skeptical that such an interpretation is clear under the statue.

U.S. Circuit Judge Barbara Lagoa, who was appointed by Donald Trump, rounded out the three-judge panel. They did not signal when they will issue a ruling.

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