The Senate Judiciary Committee Subcommittee on the Constitution, Civil Rights and Human Rights has announced a field hearing entitled “New State Voting Laws II: Protecting the Right to Vote in the Sunshine State” to be held Friday, January 27th at 1pm at the Hillsborough County George E. Edgecomb Courthouse, 800 E. Twiggs Street, Tampa, FL 33602.
In a letter this week, posted online by the Tampa Tribune, Sen. Dick Durbin responded to Sen. Bill Nelson’s request that the Senate Judiciary Committee’s Subcommittee on the Constitution, Civil Rights and Human Rights investigate HB1355 by agreeing with Nelson’s concerns and stating he will conduct a field hearing in Florida. No date for the hearing has been set yet, but the ACLU, according to the Orlando Sentinel, is requesting Durbin hold three hearings before the Florida Presidential Primary in January.
Two updates this week related to past stories on this blog.
As explained in the Palm Beach Post, the ACLU and League of Woman Voters challenge to the implementation of HB1355 was dismissed as moot and for a lack of standing and ripeness. The District Court found that most of the law had been precleared and that the few remaining sections under review by the U.S. District Court for the District of Columbia were not being enforced in the five Florida preclearance counties. The District Court held that “[t]he State is allowed to prepare for legislation that has been passed and implemented in non-covered counties.”
Meanwhile, I’ve enjoyed the headlines this week in the Orlando Sentinel’s Central Florida Political Pulse blog: “Florida to federal court: Hurry up already” & “Florida election fight becomes battle royale” – the litigation over the State’s request to preclear the remaining sections of HB1355 (or strike down Section 5 of the Voting Rights Act as unconstitutional) continues with the State requesting an expedited review and the District Court allowing 29 interveners to join the case.
A surprising development in the preclearance saga of HB1355, the State has filed a First Amended Complaint seeking to have the court declare the preclearance obligation in Section 5 of the Voting Rights Act unconstitutional. To recap my past posts on this topic: under the Federal Voting Rights Act, the State of Florida has to “preclear” changes to election laws. Preclearance can be done throught the U.S. Department of Justice or by filing suit in D.C. The State initially sought U.S. DOJ approval, but then withdrew several of the proposed election law changes and filed suit in D.C.
The State now alleges that preclearance itself is “not a rational, congruent, or proportional means of enforcing the Fourteeth and/or Fifteenth Amendments” to the U.S. Constitution. The Secretary of State has published a press release contesting the 1972 process that placed Collier, Hardee, Hendry, Hillsborough, and Monroe counties under the preclearance requirement, claiming it does not reflect current conditions. The Secretary does not appear to address the fact that there is a process in the Voting Rights Act that would allow a county to end the preclearance obligation. That process is certainly not an easy one, as it also requires a local government to file suit in D.C.
Here’s the quote from the Secretary of State’s news release: “The purpose of filing in the federal district court is to ensure that the changes to Florida’s election law are judged on their merits by eliminating the risk of a ruling impacted by outside influence,… [s]ince the passage of HB 1355, we have seen misinformation surrounding the bill increase. By asking a court to rule on certain aspects of the bill, we are assured of a neutral evaluation based on the facts.” Swift reaction from the bill’s detractors is being reported in an AP story on the Tampa Tribune site, and in a Sun-Sentinel story. It appears from the Secretary of State’s news release that the USDOJ had issues with the HB1355 provisions related to early voting, 3rd party voter registration, petition signature verification, and address changes at the polls.
The St. Pete Times is reporting on a protest yesterday in Tampa related to HB1355. Meanwhile, the AP & Miami Herald are reporting on a hearing today related to a libertarian group challenging Florida’s political committee regulatory structure. The plaintiffs’ counsel has a summary of their suit on their website. It appears to be one of many First Amendment/election law cases inspired by recent Supreme Court decisions.
The American Bar Association’s ABA Journal posted an interesting article today entitled “As Other States Watch, Florida’s Redistricting Fracas May Set the Lines for the Future. Apparently this will be in their June 1 printed edition.
Apparently, Miami-Dade County’s Supervisor of Elections office has decided that the Governor will be signing HB 1355 into law, as they have cancelled early voting for this coming Sunday. In response, Miami-Dade mayoral candidate Marcelo Llorente has filed suit seeking to reinstate Sunday’s early voting.
If the Governor does sign the law, it will be subject to preclearance review under Section 5 of the Voting Rights Act. In 1998, the Division of Election issued an opinion (98-13) dealing with a preclearance issue related to changes to the election code. In that opinion, the Division opined that statewide changes to election laws “should not be enforced in any county until precleared by the Department of Justice or the courts.”
Here is the heart of the opinion discussing a 1998 law:
“Thus, to again summarize, sections 9, 10, 14, 16, the portion of section 20 which provides that an
absentee ballot is illegal if it does not include the social security number information and correct
witness information, and subsection (3) of section 26 have been finally determined by the United
States Attorney General to be unenforceable with respect to the five preclearance counties of Collier,
Hardee, Hendry, Hillsborough, and Monroe. Letter to Florida Attorney General Robert A. Butterworth
from Elizabeth Johnson, Chief, Voting Section, Civil Rights Division, United States Department of
Justice, August 10, 1998.1 Application of new election laws are contingent upon preclearance by the
Justice Department pursuant to the Voting Rights Act of 1965. Thus, the effective date of any such
laws are delayed until such preclearance is obtained.
As a result, with respect to your second question and for the reasons set forth below, it is the opinion
of the Division of Elections that all 67 Florida counties should instruct absentee voters, issue absentee
ballots, count voted absentee ballots, canvass absentee ballots, and require polling place identifications
pursuant to the 1997 Florida Election Code, and not penalize persons who are determined to have
witnessed more than five absentee ballots as provided in subsection (3) of section 26, chapter 98-129
Laws of Florida, for the entire 1998 election cycle. To do otherwise, in our opinion, has the potential
to cause widespread voter confusion, affect the integrity of the elections process, impair uniform
application of the election laws and could violate Federal and State laws and both the Florida and
United States Constitutions. See, U.S. Const. amend XIV and XV, Art. I, §§ 1 and 2, Fla. Const., Art.
III, § 11(a), Fla. Const., 42 U.S.C. § 1973c (1982), 42 U.S.C. 1973(a), (b) (1982), § 97.012(1), Fla.
Committee Substitute for Committee Substitute for House Bill 1355 (CS/CS/HB 1355) alters many of the procedures in place since the Florida Election Reform Act of 2001. In 158 pages of legislation, the Legislature has decreased the number of early voting days, altered the way voter registration drives can be done, including the potential of levying fines on third party groups, changes the way courts can review constitutional amendments proposed by the legislatures, and made many other procedural changes.
Specifically, CS/CS/HB 1355:
- Reduces the number of early voting days to 8 from 14 days.
- Alters the definition of “minor political party.”
- Increases the authority of the Secretary of State over the locally elected Supervisors of Elections.
- Provides extensive regulation of third-party voter registration organizations and imposes penalties for violations.
- Mandates that voter registration organizations turn in voter registration applications within 48 hours of delivery or the organization is fined.
- Requires that a voter’s polling place address be listed on their Voter Information Card.
- Requires that local Supervisors of Elections notify voters within 5 days of entering their voter registration information into the State database of the status of their application.
- Increases the time requirement for switching political parties before qualifying to run for office from 6 months to 1 year.
- For petition gathering organizations, if any person is paid to collect signatures, then the group cannot file an undue burden oath seeking not to be charged by the local Supervisor of Elections for verifying the petitions.
- Moves up Primary elections from 10 weeks before the general election to 12 weeks before.
- Increases the amount of data that the local Supervisors must supply to the state on voting patterns.
- Requires that voters who have changed addresses vote by provisional ballot instead of only having to fill out an affidavit at the polls.
- Made changes related to court review of ballot statements put on the ballot by the Legislature.
- Extends the length of validity for a request to receive absentee ballots from one election cycle to two.
- Potentially alters the standard for review of the signature on an absentee ballot.
- Gives the Supervisor of Elections the discretion to use early voting for non-state or non-federal elections.
- Increases the number of reports required from local canvassing boards to the State during the ballot counting process.
- Defines “[e]xpenditures related to potential candidate polls” to not be contributions or expenditures under campaign finance law.
- Makes other definitional and procedural changes to campaign finance law.
If signed by the Governor, the changes made by CS/CS/HB 1355 are subject to preclearance review under Section 5 of the Federal Voting Rights Act.