On April 10, 2018, President Trump nominated Allen Winsor to the U.S. District Court for the Northern District of Florida. Winsor, a current justice on Florida’s First District Court of Appeal, previously served as Solicitor General of Florida from 2013 to 2016, under Attorney General Pam Bondi. In that capacity, he defended several troubling laws, including repeated efforts in Florida to dilute the vote of persons of color and make it harder for Floridians to vote. He also advanced efforts to erode reproductive rights and marriage equality, as well as supported questionable practices as the state carried out the death penalty.
As the Senate Judiciary Committee reviews Winsor’s controversial positions and activities during government service, it is worth noting current committee Chairman Chuck Grassley’s statement in opposing Caitlin Halligan, then Solicitor General of New York, to be a judge on the D.C. Circuit: “Some of my colleagues have argued that we should not consider this aspect of [Caitlin] Halligan’s record, because at the time she was working as the Solicitor General of New York. But, no one forced Ms. Halligan to approve and sign this brief.”
Like a vast majority of Trump’s nominees, Winsor is a member of the Federalist Society.
Alliance for Justice has prepared this blog to highlight areas of Winsor’s record, based on our review thus far, in which we believe greater scrutiny by the Senate is warranted.
Voting Rights and Redistricting
- While he was in private practice, Winsor represented the Florida House of Representatives in redistricting, as well as the Florida Secretary of State, in several lawsuits relating to voting rights and voter registration. According to Winsor, his “representation of the House was broader than litigation[,]” including “work[ing] with and advis[ing] House leaders and staff and coordinat[ing] with experts[,]” leading up to the enactment of the congressional maps.
- Winsor co-authored a chapter in Mapping Florida’s Political Landscape: The Changing Art and Politics of Reapportionment and Redistricting, in which he discusses the politics of “racial fairness.” Winsor explains how Florida Republicans “saw that through the process of creating majority-minority districts, African-Americans would be aggregated, even packed, into districts almost sure to elect their candidate of choice[.]” This Republican strategy, Winsor writes, required “Republicans to ‘court’ black Democrats, especially, but not exclusively, in the South[,]” and for Republicans to “‘sell’ African Americans on the idea that GOP and black political interests actually merged on the eve of legislative and congressional redistricting.” Although Winsor admits that the Republican strategy was “cynical,” he notes that this “joint strategy of designing ‘blacker’ Democratic districts and ‘whiter’ Republican ones during reapportionment would serve both groups admirably, as both could secure their political goals.”
- In In re Senate Joint Resolution of Legislative Apportionment 1176, 83 So.3d 597 (Fla. 2012), Winsor represented the Florida House of Representatives, defending the validity of state legislative district maps drawn after the 2010 census. While upholding the redistricting for the state house, the Florida Supreme Court ruled the redistricting of the state senate was unconstitutional. Challengers argued that the senate plan was drawn with the intent to protect incumbents and resulted in diluting the voting strength of minority groups.
- In Florida State Conference of NAACP v. Browning, 522 F.3d 1153 (11th Cir. 2008), Winsor defended a Florida law that required that the driver’s license or Social Security number on a registration form be verified before a voter can be registered to vote. According to the Brennan Center, “[t]he error-laden practice that was originally challenged converts an administrative recordkeeping measure to a burden on voters, upending federal laws designed to ensure that bureaucratic mistakes no longer disenfranchised eligible citizens.” The Brennan Center found that the practice delayed or denied registration to more than 76,000 Florida citizens. In dissenting from the Eleventh Circuit’s decision upholding the law, Chief Judge Rosemary Barkett pointed out that the law deprived over 14,000 citizens the right to vote, many of whom were minorities. State Conf. of the NAACP, 522 F.3d at 1176 (Barkett, J., dissenting). She noted that while black voters made up 13% of the scanned pool, they comprised 26% of those who were purged. Id. at 1176 n.4.
- In League of Women Voters v. Browning, 447 F. Supp. 2d 1314 (S.D. Fla. 2006), Winsor defended a voter registration statute that imposed extremely burdensome administrative requirements, unreasonably tight deadlines for submission of completed forms, and heavy penalties for even the slightest delay or mistake. These restrictions were so harsh that the League of Women Voters and Rock the Vote, among other groups, were forced to shut down their voter registration programs in Florida. In 2006, a federal district court judge enjoined enforcement of the law.
- In Diaz v. Cobb, 541 F. Supp. 2d 1319 (S.D. Fla. 2008), Winsor represented the Florida Secretary of State after Florida’s voter registration deadline, which was 29 days before an election, was challenged as a violation of the right to vote. Civil rights organizations pointed out that the law prevented voter registration in the event minor errors on registration forms were challenged. The district court upheld the legislatively-imposed voter registration deadline.
- In Citizens for Police Accountability Political Comm. v. Browning, 572 F.3d 1213 (11th Cir. 2009), Winsor defended a Florida law that prohibited electioneering near polling places, which was challenged on First Amendment grounds. The NAACP had challenged the law when a group of Floridians was unable to collect signatures for a petition, outside a polling place, that would have amended the Fort Myers city charter to create a citizen oversight panel for the city police department.
- In Hurst v. Florida, 136 S. Ct. 616 (2016), Winsor led the briefing and argued before the U.S. Supreme Court, in defense of Florida’s capital sentencing system. Under Florida law, a judge, rather than a jury, made the critical findings necessary to impose the death penalty. This permitted a judge to overrule a jury recommendation in order to impose a death sentence. In an 8-1 ruling, the Supreme Court found that Florida’s system violated the Sixth amendment.
- In Hall v. Florida, 134 S. Ct. 1986 (2014), the Supreme Court held that a Florida law that required defendants to show an IQ test score of 70 or below before they were allowed to submit additional evidence of an intellectual disability, was unconstitutional. Winsor argued the case before the Supreme Court. In a 5-4 decision, with Justice Anthony Kennedy writing for the majority, the Court held that Florida’s “rigid rule. . . creates an unacceptable risk that persons with intellectual disability [sic] will be executed, and thus is unconstitutional.” at 1990. Furthermore, Kennedy noted, “Intellectual disability is a condition, not a number.” Id. at 2001.
- Winsor also submitted an amicus brief in Glossip v. Gross, 135 S. Ct. 2276 (2015), arguing in support of Oklahoma’s execution method. The case involved the use of midazolam, an anesthetic that came under scrutiny after it was used in Oklahoma’s botched execution of Clayton Lockett. For Lockett, 43 minutes passed between the administration of midazolam and his death. The brief argued that “when properly administered, midazolam will produce a level of unconsciousness sufficient to yield a humane and constitutional execution.” This is in stark contrast to evidence that it was ineffective at blocking the pain experienced by inmates including Lockett, which Justice Kagan described as “like being burned alive.”
- As Solicitor General of Florida, Winsor defended a Florida law that imposed a mandatory 24-hour waiting period before accessing abortion care. See State v. Gainesville Woman Care, 187 So. 3d 279 (Fla. Dist. Ct. App. 2016). Opponents of the law claimed that “the extra doctor’s visit is an unnecessary burden, especially for poor women who may have limited access to transportation or find it difficult to take multiple days off work to have two appointments at a far-away clinic.” In April 2016, the Florida Supreme Court blocked the law, and it was recently declared unconstitutional.
- Winsor filed an amicus brief in opposition to the Affordable Care Act’s contraceptive coverage mandate in Beckwith Electric v. Sebelius, No. 13-13879 (11th Cir. 2013).
- As solicitor general, Winsor defended Florida’s marriage laws, which prohibited same-sex marriage, in several lawsuits, including Brenner v. Scott, 999 F. Supp. 2d 1278 (N.D. Fla. 2014). In Brenner, a district court judge ruled that Florida’s ban on same-sex marriage was unconstitutional, issuing an injunction preventing the state from enforcing the law. In the opinion, the judge rejected Florida’s concerns, declaring that: “The institution of marriage survived when bans on interracial marriage were struck down, and the institution will survive when bans on same-sex marriage are struck down. Liberty, tolerance, and respect are not zero-sum concepts. Those who enter opposite-sex marriages are harmed not at all when others, including these plaintiffs, are given the liberty to choose their own life partners and are shown the respect that comes with formal marriage. Tolerating views with which one disagrees is a hallmark of civilized society.” at 1291.
- The Florida Attorney General Office was criticized at the time of the litigation for arguing that “The Court should also deny the preliminary injunction motions because there is no likelihood of success on the merits, there is no immediacy requiring a preliminary injunction and disrupting Florida’s existing marriage laws would impose significant public harm.” Winsor commented “Florida is harmed whenever a federal court enjoins enforcement of its laws, including the laws at issue here . . . Florida’s voters approved a constitutional amendment, which is being challenged, and it is the attorney general’s duty to defend the law.”
- In West Virginia v. EPA, 136 S. Ct. 1000 (2016), Winsor was the signatory for the state of Florida on the filing of 29 states, lead by the state of Texas, to sue the EPA and stop the Clean Power Plan (CPP). The Supreme Court stayed the EPA’s implementation of the CPP in February 2016 pending a ruling by the D.C. Circuit.
Drug Testing of Public Assistance Recipients
- In Lebron v. Sec. of Fla. Dep’t of Children & Families, 772 F.3d 1352 (11th Cir. 2014), Winsor defended a Florida statute that required suspicionless drug tests for all applicants seeking Temporary Assistance for Needy Families benefits. The trial court held that Florida’s law was unconstitutional and the U.S. Court of Appeals for the Eleventh Circuit affirmed.
- As solicitor general, Winsor defended a Florida law that prohibited doctors from discussing gun safety with patients. The law was supported by the National Rifle Association and signed by Governor Rick Scott in 2011. In February 2017, the Eleventh Circuit struck down the law. See Wollschlaeger v. Governor, 848 F.3d 1293 (11th Cir. 2017).