11th Circuit Court of Appeals: 2012 Florida Voter Purge violated NVRA

A three judge panel of the United States Court of Appeals for the Eleventh Circuit has concluded that Florida’s 2012 effort to remove ineligible voters was “an attempt to systematically remove names from the voter rolls in violation of the 90 Day Provision” contained in the National Voter Registration Act, 42 U.S.C. § 1973gg-6(c)(2)(A).

This order reverses the holding reported on this blog back in October, and comes after the State has apparently suspended their current systematic removal program.

The battle over absentee ballots

Please forgive the lack of posts over the last few months, as my wife and I were a bit distracted by the arrival of our son!

Related to the political debate over the Florida 13th Congressional District Special Election, the issue of the use of absentee ballots became a flashpoint.  The two primary sources documents involved, are the Secretary of State’s Directive (the only directive of 2013, and the only one originated by the current officeholder) and a letter from the Pinellas County Supervisor of Elections, written in response.  News reports state that the two parties spoke and the Secretary decided to not pursue the issue further, but as of this writing the Directive remains in place.  What was in dispute was whether a Supervisor of Elections could have voters drop off their absentee ballot at a remote location that was not a typical elections office.  The State argued that “drop boxes” were not permitted.  Pinellas County argued the “drop boxes” were staffed by Deputy Supervisors of Elections, an audit trail was maintained, and the their goal was ensure that voters had more opportunities to participate in the process.

Legislation related to the issue was filed for this current legislative session, but news reports indicate the bill is presently on hold.  The legislative staff analysis cites the dispute and indicates that generally other Supervisors of Elections support their Pinellas colleague.  Putting aside the partisan accusations and arguements, the heart of the issue appears to be a very typical conflict in Florida- the issue of state control versus local home rule.

“Project Integrity” or Voter Purge? State begins new voter roll review effort.

The Secretary of State today begins a series of roundtable discussions with local supervisors of elections related to the State’s plan to renew efforts to systematically remove individuals from the voting roles that the State believes are non-citizens – an effort that the State has labeled “Project Integrity.”  Past efforts by the State were led to controversary over the accuracy of the State’s data and lists of voters and were challenged in part under the section of the Voting Rights Act since deemed unconstitutional by the Supreme Court in Shelby County, Alabama, v. Holder.  (See the recent dismissal of the prior action, published online by The Lawyers Committee for Civil Rights Under Law) 

Stories from Time Magazine and the Tampa Bay Times provide background on the issue, while a News-Press story highlights the concerns of local supervisors of elections. 

In their press release, the State provides this schedule of meetings:

  •  October 3rd, Bay County Area Supervisor Roundtable, 1:00 PM CST 830 West 11th Street, Panama City 32401
  • October 4th, Duval County Area Supervisor Roundtable, 11:00 AM EST 105 East Monroe Street, Jacksonville 32202
  • October 7th, Orange County Area Supervisor Roundtable, 1:00 PM EST 119 West Kaley Street, Orlando 32806
  • October 8th, Sarasota County Area Supervisor Roundtable, 10:00 AM EST 101 S. Washington Blvd., Sarasota 34236
  • October 9th, Broward County Area Supervisor Roundtable, 10:30 AM EST 115 S. Andrews Ave., Fort Lauderdale 33301

U.S. Supreme Court strikes down Section 4 of the Voting Rights Act – impacts 5 Florida Counties

The United States Supreme Court, in the case of Shelby County, Alabama v. Holder, Attorney General, Et al., ruled that Section 4(b) of the Federal Voting Rights Act is unconstitutional.  Section 4(b) contained the formula that placed a jurisdiction under the mandate of Section 5.  Section 5 requires local jurisdictions to submit their proposed changes to voting-related laws to either the U.S. Department of Justice or the Federal District Court for the District of Columbia for preclearance before such laws can go into effect.  While the Supreme Court allowed Section 5 to stand, it appears that its effect has been suspended unless Congress acts to replace it.

Section 4(b) provides (See: http://www.justice.gov/crt/about/vot/42usc/subch_ia.php#anchor_1973b):

  • (b) Required factual determinations necessary to allow suspension of compliance with tests and devices; publication in Federal Register

    The provisions of subsection (a) of this section shall apply in any State or in any political subdivision of a State which (1) the Attorney General determines maintained on November 1, 1964, any test or device, and with respect to which (2) the Director of the Census determines that less than 50 per centum of the persons of voting age residing therein were registered on November 1, 1964, or that less than 50 per centum of such persons voted in the presidential election of November 1964. On and after August 6, 1970, in addition to any State or political subdivision of a State determined to be subject to subsection (a) of this section pursuant to the previous sentence, the provisions of subsection (a) of this section shall apply in any State or any political subdivision of a State which (i) the Attorney General determines maintained on November 1, 1968, any test or device, and with respect to which (ii) the Director of the Census determines that less than 50 per centum of the persons of voting age residing therein were registered on November 1, 1968, or that less than 50 per centum of such persons voted in the presidential election of November 1968. On and after August 6, 1975, in addition to any State or political subdivision of a State determined to be subject to subsection (a) of this section pursuant to the previous two sentences, the provisions of subsection (a) of this section shall apply in any State or any political subdivision of a State which (i) the Attorney General determines maintained on November 1, 1972, any test or device, and with respect to which (ii) the Director of the Census determines that less than 50 per centum of the citizens of voting age were registered on November 1, 1972, or that less than 50 per centum of such persons voted in the Presidential election of November 1972.

    A determination or certification of the Attorney General or of the Director of the Census under this section or under section 1973d or 1973k of this title shall not be reviewable in any court and shall be effective upon publication in the Federal Register.

This formula was reauthorized by Congress repeatedly, most recently in 2006 for an additional 25 years.  The counties that were subject to preclearance review under Section 5 in Florida because of this formula were: Hillsborough, Monroe, Collier, Hardee and Hendry.   

Florida newspaper articles on the case include TBT, Miami Herald, News-Press.  The Attorney General issued a press release in response.

Governor signs CS/HB 7013 – bill amends Florida Election Code

The Florida Governor has signed CS/HB 7013, making it Chapter 2013-57, Laws of Florida.  The bill had passed the House by a 115-1 margin and the Senate by 27-13.  Included in the bill are the following changes:

  • Supervisors of Elections must now post an “elections preparation report” three months before each general (November) election. 
  • Allows individuals who move to another county but haven’t yet changed their voter registration to vote a regular ballot if the new county uses an electronic database as their precinct register.
  • Allows counties that must publish a multi-language ballot to ask the U.S. Department of Justice for permission to send out single-language ballots for each minority language. 
  • Limits constitutional amendment ballot summaries proposed by joint resolution of the Legislature to 75 words or less, matching the limit imposed on other groups. 
  • Allows for investigation of election equipments vendors, requires disclosure of known “defects,” and allows for civil penalties of $25,000 per defect, plus costs, to be imposed.
  • Changes the process for post-election audits by county canvassing boards.
  • Requires that absentee ballots be mailed to the person’s on-file address or requires that a signed, written request be filed if the ballot is to be mailed to a family member or guardian. 
  • Allows for delivery of an absentee ballot on election day to a voter or their immediate family member only if there is an “emergency, to the extent that the elector will be unable to go to his or her assigned polling place.”  An affidavit will be required. 
  • For overseas absentee voters, it expands the existing 10 day window for ballot to arrive after election day from just federal races to now include all races on the ballot. 
  • Expands early voting locations to now also include: “fairground, civic center, courthouse, county commission building, stadium, convention center, government-owned senior center, or government-owned community center.”  Also allows for additional sites if there is a part of the county that lacks an authorized type of facility. 
  • Sets the year 2012 as the standard for the minimum number of early voting sites in a county. 
  • Increases the minimum number of early voting hours per day from six to eight.  Allows supervisors to decide to have more early voting days: “early voting may be offered at the discretion of the supervisor of elections on the 15th, 14th, 13th, 12th, 11th, or 2nd day before an election that contains state or federal races for at least 8 hours per day, but not more than 12 hours per day.”
  • Allows a voter, until 5 p.m. the day before election day, to “cure” their previously returned but unsigned absentee ballot by affidavit.
  • Expands no solicitation zone to include a supervisor of elections’ office that prints absentee ballots.
  • Sets an alternate canvassing board member appointment process.
  • Alters the Presidential Preference Primary and allows its date to be set by party rule.  Deletes the reference to a “Presidential Preference Primary Date Selection Committee.” 
  • Makes it a first degree misdemeanor to accept, “a pecuniary or other benefit in exchange for distributing, ordering, requesting, collecting, delivering, or otherwise physically possessing more than two absentee ballots per election in addition to his or her own ballot or a ballot belonging to an immediate family member.”

The Division of Elections has posted a memo sent to the Supervisors of Elections about the changes.

Governor Signs Legislation Amending Florida’s Ethics Regulation & Campaign Finance Laws

Without waiting for the last days of the 2013 Legislative Session, the Florida House and Senate sent two bills to the Florida Governor concerning changes to Florida’s Campaign Finance laws and its Code of Ethics for Public Officers. Most involved amendments to Chapters 120 and 112, Florida Statutes. The bills were passed more than a week before the end of the legislative session, forcing the Governor to respond quickly. He signed them into law on May 1.

Campaign Finance Changes: CS/CS/CS/HB 569

A third committee version of House Bill 569, which was a priority of Florida’s Speaker of the House, passed the House and Senate on April 24 by votes of, respectively, 79-34 and 37-2. Changes to the Florida Election Code include: 

  • Raising political contribution limits from $500 to $3,000 for statewide offices (and Florida Supreme Court retention contributions) and to $1,000 for other offices. The prior $500 limit on contributions to political committees is removed, resulting in no limit on contributions to those entities. 
  • Deleting a prior $100 contribution limit placed on those under 18 years old. 
  • A quick phase-out of Florida’s Committees of Continuous Existence (CCEs). CCEs were groups certified to make political contributions by the State under F.S. 106.04, now repealed, but required to operate based on a written charter or bylaws, with a portion of their funds drawn from dues. These dues were collected regularly from CCEs’ members. Current CCEs must stop collecting contributions on August 1. Certification of current CCEs will be revoked on September 30. 
  • Enabling current CCEs to transfer all of their funds to a political committee. 
  • Maintaining one facet of CCEs – uniform contributions from the same person – but limiting the contribution to an aggregate of $250 per year, allowing only aggregate contributions to political committees. 
  • Selecting a member of a political party’s executive committee is now considered an “election” and is subject to campaign finance regulation. 
  • Amending reporting requirements for candidates to require more reports. Statewide candidates will now have to file weekly reports beginning 60 days before an election, and daily reports shortly before an election. Other candidates and political committees must now file bi-weekly reports and others on additional reporting days. 
  • Permitting elected officials to transfer more of their remaining funds from campaigns to “office accounts” for travel and other expenses, including hiring an attorney or CPA to assist with financial disclosure forms.
  • Directing the Division of Elections to prepare a proposal for statewide electronic filing of all campaign finance reports.

Some of these provisions, especially those related to CCEs, will be phased in immediately. The remainder of the act becomes effective on November 1, 2013.

Ethics Reform: CS/SB 2

The Committee Substitute for Senate Bill 2, which was a priority of the Senate President, flew through the Senate and passed unanimously on March 5. In the House, the vote was 117-0 on April 24. The bill includes many changes to Florida’s Code of Ethics for Public Officers and Employees, Part III of Chapter 112, Florida Statutes. Changes to the law include:

  • Clarifying the circumstances in which a public elected official or candidate can also work for government
  • Broadening the two-year prohibition on lobbying after serving as an elected official.
  • Requiring four hours of annual ethics training for the Governor, Lieutenant Governor, Attorney General, Chief Financial Officer, Commissioner of Agriculture, state attorneys, public defenders, sheriffs, tax collectors, property appraisers, supervisors of elections, clerks of the circuit court, county commissioners, district school board members, and superintendents of schools.
  • Setting up provisions for qualified blind trusts.
  • Clarifying the voting conflicts provisions for elected officials. 
  • Allowing public officers to correct their financial disclosure statements and barring action on an “immaterial, inconsequential, or de minimis error or omission” by the Commission on Ethics.
  • Requiring that the Commission on Ethics submit a proposal on electronic financial disclosure reports, and providing that all disclosure reports filed since 2012 be placed online in a searchable database. 
  • Allowing for ethics fines to be taken out of a public official’s salary, and authorizing the Commission on Ethics to hire a collection agency. 
  • Amending the definitions relating to voting conflicts and the process for dealing with voting conflict situations. 
  • Adding officeholders to the list of those who must publically disclose their finances, including community redevelopment agency board members and local finance directors.
  • Barring political committees from giving gifts to procurement employees or their families.

This bill became effective upon becoming a law.

Angry Supervisors of Elections – amended Florida Senate bill passes

TBT and The Orlando Sentinel are reporting that the Florida Senate passed an amended version of the House election law proposal.  The Senate’s action included passing an amendment that would allow the Secretary of State to “place a supervisor of elections in noncompliant status pursuant to s. 98.025,” apparently angering some Supervisors of Elections in attendance.  The new 98.025 would read:

98.025Supervisors of elections; noncompliant status.—
   49         (1) The Secretary of State may place a supervisor of
   50  elections in noncompliant status whenever that supervisor does
   51  not perform one or more of the following:
   52         (a) Timely file any report required by the Florida Election
   53  Code.
   54         (b) Ensure that ballots are distributed, collected,
   55  counted, and reported in accordance with applicable law.
   56         (c) Safeguard and account for voted ballots.
   57         (d) Follow any statute that imposes a duty or
   58  responsibility on a supervisor of elections.
   59         (e) Follow rules adopted by the Department of State
   60  concerning the implementation of any provision of the Florida
   61  Election Code.
   62         (2) The Secretary of State shall submit the written
   63  decision to place or remove a supervisor of elections in
   64  noncompliant status to the affected supervisor and provide a
   65  copy of the decision to the Governor and the chair of the board
   66  of county commissioners in the supervisor’s county.
   67         (3) While a supervisor of elections is in noncompliant
   68  status, the supervisor is not entitled to receive the special
   69  qualification salary available pursuant to s. 145.09. When
   70  removed from noncompliant status, if otherwise eligible to
   71  receive the special qualification salary, the supervisor is
   72  entitled to a pro rata share of the special qualification salary
   73  based on the remaining period of the year.
   74         (4) The Secretary of State may remove a supervisor from
   75  noncompliant status after 1 year of being placed in such status,
   76  provided that:
   77         (a) The supervisor has complied with any of the duties
   78  identified in subsection (1) while in a noncompliant status.
   79         (b) The supervisor has completed during each year while in
   80  noncompliant status a course of continuing education pursuant to
   81  s. 145.09 as prescribed by the Division of Elections; and
   82         (c) The supervisor has taken and received while in
   83  noncompliant status a grade of 90 percent or greater on a
   84  uniform statewide open-book examination testing the supervisor’s
   85  knowledge of the Florida Election Code. The Florida State
   86  Association of Supervisors of Elections shall annually develop
   87  the examination, but the examination shall be approved and
   88  administered by the Division of Elections.
   89         (5) If a supervisor has been in noncompliant status for 3
   90  consecutive years, the Secretary of State shall provide written
   91  notice of such event to the Governor for consideration of
   92  exercising the Governor’s authority to suspend the supervisor
   93  pursuant to s. 7, Art. IV of the State Constitution.
   94         (6) The decision of the Secretary of State to place a
   95  supervisor of elections in noncompliant status or remove a
   96  supervisor of elections from noncompliant status is exempt from
   97  the provisions of chapter 120.
   98         (7) This section is in addition to, and not exclusive of,
   99  the authority of the Governor to suspend and remove a supervisor
  100  of elections pursuant to s. 7, Art. IV of the State
  101  Constitution.