Florida Election Law

The latest in Florida Election Law issues, cases, legislation, and news.

A personal blog of

Ken Tinkler.

  

  

 

Copyright 2016 Ken Tinkler

Angry Supervisors of Elections – amended Florida Senate bill passes

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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:

98.025 Supervisors 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.

Changes to Florida Election Law pass House 118-1, head to the Senate

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CS/HB 7013, with changes to the Florida Election Code, passed the state House of Representatives 118-1, the changes include:

  • Expands the ability of military member returning from deployment to register to vote after the typical deadline.
  • Limits the ballot summary of constitutional amendments proposed by the Legislature to the 75 word length imposed on others.
  • Expands the list of possible early voting locations to include “fairground, civic center, courthouse, county commission building, stadium, or convention center.”
  • Expands potential early voting days.
  • Alters absentee ballot processing procedure.
  • Alters canvassing board appointment process to include alternates. 
  • Alters voting tabulation technical requirements.

Despite the 118-1 vote approval, media reports (St. Augustine Record, Tampa Bay Times, CBS Miami) continue to show a partisan split on additional election reform ideas.  House Staff Analysis of the Bill.

Mostly done counting in Florida & calls for reform

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With the State of Florida’s 1st set of Unofficial Returns published, most major media outlets called the Presidential race for President Obama.  The percentage difference between the candidates was larger than the amount that would trigger any kind of recount and any remaining ballots would not be of enough quantity to change the outcome. 

The media coverage of Florida has not been kind, and calls for changes have begun.  Notably, former Hillsborough County Supervisor of Elections and former Mayor of Tampa Pam Iorio has called for reform on her Facebook page, while the Palm Beach Post reports that groups that have litigated with the State previously over election law issues have also called for changes and a federal investigation.  The Governor of Florida issued a statement asking the Secretary of State to review the Florida election process.

Disputes over Early Voting Hours Continue

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With Florida’s early voting process set to end on Saturday evening, the ongoing dispute over the changes to early voting passed by the Florida Legislature in 2011 continues.  In 2008, the Florida Governor extended early voting hours due to concerns about turnout.  Requests have been made for the current Governor to take the same action, but that appears to be unlikely.  Here are some current news reports:

Federal District Court holds that NVRA does not limit Florida purge

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A Federal District Court Judge in South Florida has issued an order in the case of Arcia, et al. v. Detzner (posted online by the Moritz College of Law at the Ohio State University) denying the Plaintiffs’ request for an injunction and summary judgment and held that the National Voter Registration Act of 1993 (NVRA) does not limit the State of Florida from attempting to purge ineligible non-citizen voters within 90 days of an election.  The issue of the NVRA’s limitation on voter list maintenance programs was raised by various civil rights groups and the U.S. Department of Justice.   

From the order:

“Certainly, the NVRA does not require the State to idle on the sidelines until a non-citizen violates the law before the State can act. And surely the NVRA does not require the State to wait until after that critical juncture——when the vote has been cast and the harm has been fully realized——to address what it views as nothing short of “voter fraud.”

“By creating two distinct subsections, Congress meant to differentiate the removal of once eligiblevoters from those who were never eligible in the first instance. Finally, subsection (b) is consistent with Congress’ finding that “the right of citizens of the United States to vote is a fundamental right” and one of the purposes of the NVRA is “to ensure that accurate and current voter registration rolls are maintained.” § 1973gg(a)(1), (b)(4) (emphasis added).”

“It must follow that subsection (b) was meant to apply to programs aimed at removing those voters whose status as registered voters was void ab initio. See also United States v. Florida, 2012 WL 2457506, at *4 (holding that pursuant to subsection (b), and in regard to “non-citizens, the state’s duty is to maintain an accurate voting list. . . . But the NVRA does not require a state to allow a non-citizen to vote just because the state did not catch the error more than 90 days in advance.”)”

Questionable voter registration applications turn into criminal investigation

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The Florida Department of Law Enforcement has now opened a criminal investigation into the voter registration activities of Strategic Allied Consulting, hired by the Republican Party of Florida to register voters, according to media reports.  The company has posted a statement online stating the problems were the result of a contractor not following procedure.  The Tampa Bay Times is reporting that Supervisors of Elections throughout the state are finding questionable forms and the Tampa Tribune reports on one county attempting a sysmtematic examination.  The New York Times is reporting on the company’s background.  This is particulary notable given all of the debate this year over the restrictions passed in HB1355 in 2011 regarding voter registration activities.

Quotes from the Federal Preclearance Opinion

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As I wrote about earlier today, the U.S. District Court for the District of Columbia issued any order precleared one section of HB1355 (regarding voters who had moved within the State) but not precleared the change to early voting days (though it did telegraph to the State how it could be precleared).

The Court also included the following analysis of some of the State’s arguments:

  • Florida’s proposed interpretation of the effect test would thus mean that section 5 could not prevent the adoption of modern-day equivalents of Jim Crow-era voting laws. To state that proposition is to refute it.
  • Voting is a fundamental right, “preservative of other basic civil and political rights,” Reynolds v. Sims, 377 U.S. 533, 562 (1964), and no amount of voter disenfranchisement can be regarded as “de minimis.”
  • Further, as we explain in more detail in the course of our discussion of specific voting changes, see infra Part II.B.1, we disagree with Florida’s position that a change is not retrogressive if it affects “in the aggregate significantly more [w]hites than minorities.” Fla. Br. 53 (emphasis added). Focusing on the effects of voting changes in absolute terms would mean that almost no ballot access change would be considered retrogressive; after all, the fact that fewer members of a particular group are present in the overall electorate is part of what it means to be a minority group. Applying the effect test in the manner Florida suggests would thus allow covered jurisdictions to enact changes with clearly adverse effects on minority voters so long as more white voters were also affected. That approach would fly in the face of the Voting Rights Act’s primary goal of protecting minority voting populations. The retrogression assessment must therefore be conducted in relative terms, with reference to the proportions of each group affected by the change.
  • Although we have concluded that we cannot preclear Florida’s early votingchanges at this time because those changes authorize the covered counties to offer a statutory minimum number of hours that may result in retrogression, it is possible that the counties will instead, as Florida predicts, opt to provide substantially more hours than that minimum. As we discuss below, under at least one such scenario we are persuaded that Florida would likely satisfy its burden of showing a nonretrogressive effect: that is, if the covered counties were to provide the maximum authorized 96 hours on a standard 7 a.m. to 7 p.m. schedule. When a court finds that it cannot preclear one iteration of a submitted plan, but may be able to preclear a modified version, the Supreme Court has expressed
    approval for issuing a kind of “conditional order” indicating the circumstances under which approval may be obtained. See, e.g., City of Port Arthur, 459 U.S. at 167-68 (expressing approval of the district court’s “conditional order” denying preclearance of the expansion of a city’s borders unless the city agreed to eliminate a majority-vote requirement for certain elections); City of Richmond, 422 U.S. at 370 (stating that the district court in City of Petersburg, 354 F. Supp. 1021, “was correct in conditioning approval of the annexation upon the adoption of the plan to elect councilmen by wards”).  We do so here.

  • In sum, the record evidence persuades us that, if the covered counties offer the maximum available early voting hours each day on a standard 7 a.m. to 7 p.m. schedule, the negative effect of reducing the number of days from 12 to 8 would likely be offset by the ameliorative effects of adding non-working weekday hours, a Sunday, and additional weekend hours.

Federal lawsuit filed against Florida

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The U.S. Department of Justice has filed a lawsuit against the State of Florida and its Secretary of State alleging violations of the National Voter Registration Act of 1993.  The complaint challenges Florida’s recent attempt to systematically purge ineligible voters less than 90 days before a Federal election.  The case was filed in the U.S. District Court for the Northern District of Florida in Tallahassee.

DOJ objects to Florida voter purge

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The Voting Section of the Civil Rights Division of the U.S. Department of Justice has sent a letter to the State of Florida outlining two objections to the State’s recent effort to purge non-citizen registrants: 1) the new process was not precleared under the Voting Rights Act (5 of Florida’s counties are preclearance jurisdictions where changes to voting procedures must be preapproved) and 2) the process appears to violate the provisions of the National Voter Registration Act (NVRA), which prohibits such list maintenance activities within 90 days of a federal election.  (Letter copy courtesy of MSNBC.)  The letter gives the State until June 6th to respond.