Florida Election Law

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

A personal blog of

Ken Tinkler.

  

  

 

Copyright 2016 Ken Tinkler

Federal District Court holds that NVRA does not limit Florida purge

By

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.”)”

Quotes from the Federal Preclearance Opinion

By

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 court rejects DOJ restraining order request related to Florida voter purge

By

Ruling from the bench, numerous media outlets are reporting the Federal judge handing the U.S. Department of Justice’s challenge to Florida’s voter purge and its compliance with the National Voter Registration Act (NVRA) has rejected the DOJ’s request for a restraining order. 

The Judge apparently relied on the state’s claim that the purge effort had stopped for now and his interpretation that the NVRA prohibition on systematic removal of voters close to an election did not apply to the systematic removal of noncitizens.  The Miami Herald has the details. 

Federal lawsuit filed against Florida

By

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

By

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.

State questions voter rolls, Supervisors of Elections concerned

By

With Florida election supervisors wary of the State’s efforts to rate them in a survey, the Division of Elections has asked local elections supervisors to examine the voting eligibility of more than 2000  registered voters.   Today a letter was sent to the State by several civil rights groups questioning whether the review is consistent with the National Voter Registration Act of 1993.  Several of these groups sued and settled with the State over the handling of the 2000 election.

Redistricting maps gain additional approvals

By

Per the Palm Beach Post and other sources – the U.S. Department of Justice precleared Florida’s redistricting efforts (State and Federal) under Section 5 of the Federal Civil Rights Act.  The submitals for preclerance are online at the State’s Redistricting website.  In Leon County (Tallahassee) Circuit Court, a judge also denied Motions for Summary Judgment tied to other challenges of the State’s redistricting maps.

Florida Election Litigation Update

By

An update for you on the election litigation related to HB1355 that is ongoing in the State of Florida.  The Orlando Sentintel reports that the U.S. District Court for the District of Columbia (where the State filed its request for preclearance of sections of HB1355 under the Federal Voting Rights Act) views it unlikely that a decision will be reached before Florida’s August 14th primary election.  As outlined on this blog in the past, right now there are two voting systems in Florida – one system for 62 counties (the news post-HB1355 system) and one for 5 counties (the pre-HB1355 system). 

The Election Law website at the Ohio State University’s Mortiz College of Law has done an excellent job cataloging the major docket filings in the League of Women Voters v. Browning and Florida v. U.S. cases.  If you’re up for 585 pages of reading, two depositions in the LWV case are posted at their website.

Tampa Election Law Hearing

By

The Senate Judiciary Committee’s Subcommittee on the Constitution, Civil Rights and Human Rights conducted a field hearing in Tampa today on Florida’s 2011 election law changes.  The Subcommittee’s webpage has the printed witness testimony (links on the right side of the subcommittee page).   The Tampa Bay Times and Bay News 9 (video) provide local coverage.  Cooper Levey-Baker of The Florida Independent live-blogged the event.