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Florida’s New Election Law: a Missed Opportunity

Florida has been the punchline to every election-related joke for the last 20 years. Yet Florida has spent the past two decades transforming its election laws into a model for the country. Recent changes are hard to explain, given the success of the 2020 election and the opposition from Florida election administrators.

Despite a firestorm of criticism, the new Florida law, SB90, does not make many voter-facing changes. The experience in 2022 will be quite similar the voting in Florida in 2020. SB90 makes some positive changes; it also makes some head scratching ones that will neither improve access nor the security of the ballot. In the end, the new bill seems mostly like a missed opportunity to improve the voting experience for Floridians.

The Bipartisan Policy Center’s Task Force on Elections recently released updated recommendations for logical election policy with the aim of creating a secure process and multiple avenues for ballot return. Here’s how the new law stacks up against our recommendations. 

Changes to Voter Registration Procedures

BPC’s task force recommended that states adopt voter registration policies that are more secure and easier. Florida already had some pro-voter provisions that protect security, for example online voter registration participation in an interstate consortium for sharing voter registration information across state lines. However, the state also has the earliest legally allowable registration deadline, almost a month before Election Day, and the state legislatures declined to change this in SB90 despite technological advances and other states’ experience that shows closing registration four weeks before Election Day is not necessary.

SB90 allows third-party groups more time to complete tasks and increase the likelihood that voters who register close to the deadline will get registered one way or another. It extends the window when registration applications must be returned from 10 to 14 days and requires the organization to notify the applicant if they will be unable to deliver the application to the supervisor’s office in time and must advise the applicant to either mail in the application or to register online. These changes are improvements.

Other requirements in SB90 for voter registration are mixed. The new law requires that the applications completed during third-party drives go to the supervisor of elections in the county in which the voter resides, complicating efforts by groups or universities who are registering many voters from across the state and risking errors that could be avoided by allowing one central return location, as required by the National Voter Registration Act. Fines imposed for mistakes will also be a deterrent for groups making good faith efforts to register voters in a state without automatic voter registration, another BPC recommendation. However, this change will also make it easier for supervisors of elections to process these applications, especially those who were saddled with the high costs of sorting registrations to the appropriate county supervisor.

SB90 includes backend changes to voter registration that voters will not see, but that will improve election administration. Following multiple instances of system crashes during the past two cycles, SB90 mandates that the Secretary of State complete a comprehensive risk assessment of the online voter registration system—that includes load testing, malware and vulnerability screening, evaluation to prevent cyber-attacks, and potential risks to voter data—to be done every two years. This is good practice for maintaining the database on which much of the election ecosystem relies.

Minimal Changes to Voting Options and Counting the Vote

For most Floridians, they will not see a wholly different suite of voting choices in November 2022 than they had in 2020. Voters in Florida will still have access to early voting, mail voting, and Election Day options.

BPC recommends expanding vote by mail return options, like drop boxes. Florida was already leading on the issue, but it did not increase the number of drop boxes in this bill. Drop boxes will remain available only during early voting hours and only at early voting sites, limiting the time and locations voters have available to return their mail ballots.

By contrast, the most forward-thinking states with drop boxes require 24-hour video monitoring of drop boxes and keep them open and available at all times so that the maximum number of people can access them. SB90’s failure to expand the number of drop boxes is another missed opportunity to improve security and accessibility.  Drop boxes are a direct connection between a voter and the election official. To us, they are more secure than voters putting a ballot through the mail, which is not monitored so closely and has many touch points between voter and election official.

Penalizing Election Administrators

While the front-end changes for voters are minimal, election officials will have to plan for a new reality in 2022. The new law limits the use of private funding for any purpose in elections. In 2020, more than $500 million in private funds flowed to nonpartisan election administration activities across the country, money that absolutely made a difference to election administrators in Florida and nationwide. Further, the law addresses the handing out of food or water to voters in long lines within 150 ft of a polling place, drop box, or early voting site, which could become more prevalent with diminished vote by mail options.

It also creates new penalties on election officials as they carry out their jobs. For example, if a drop box is left unattended and a voter uses it or if it is utilized after hours of operation, the supervisor can be assessed personally with a $25,000 fine; a penalty not befitting of the act, especially in the event of an inadvertent error or misunderstanding on behalf of the voter about the rules governing drop boxes

This bill touches on a few areas of election administration reform, but it does not comprehensively improve the voting experience for Floridians, which is ultimately a missed chance for good, substantive policy changes. As with any new voter law, there’s some good and some bad. However, when election laws are changed by one party alone using some hard-to-define rationales and without even the backing of the most expert of the state’s citizens—the supervisors of elections who are elected to administer free and fair elections—it’s hard to come out ahead.

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