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:
Stories continue to surface about election problems in Palm Beach County:
- Florida elections officials to return to Palm Beach County ‘seeking answers’ to latest absentee ballot printing error
- Delays in Palm Beach County voters receiving absentee ballots likely due to bar code issue, postal workers union says
- Ballot printing problem plagues Palm Beach County (video)
- Second printing error could jeopardize another 500 Palm Beach County absentee ballots, as copying of 27,000 continues
- Copying of thousands of bad Palm Beach County absentee ballots reveals bigger issue with voter signatures
- West Palm Beach woman sues elections supervisor to challenge signature rule for absentee ballots, be allowed to vote
Duplication of ballots happens every election at every Supervisor of Elections’ office throughout the state, but usually not on this scale. Here is the statute section that governs duplications:
According to news reports, the FBI and Postal Service are looking into fake official-looking letters that have apparently been sent to voters in at least 28 Florida counties challenging their citizenship and their eligibility to vote. The Tampa Bay Times has posted a sample of the one of the letters, along with the envelope it came in.
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.”)”
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.
More developments on the effort by the State of Florida to remove allegedly non-citizens from the voting rolls – the State has agreed to have local supervisors of elections notify the majority of those on the prior “purge” list of their eligibility to vote. An AP story labeled this as a “settlement,” while the Miami Herald is reporting the case is not settled. The Advancement Project has posted the agreed-upon stipulation. Meanwhile, another site is reporting that the State has begun training local supervisors on how to use the federal Homeland Security SAVE database for verifying eligibility.
The U.S. District Court in Tallahassee has issued a “Indicative Ruling on the Motion for a Permanent Injunction” regarding the challenged filed against Florida’s HB1355 limits on voter registration activities. (Document courtesy of The Brennan Center)
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.
In a 119 page order, the U.S. District Court for the District of Columbia (the court hearing the State’s preclearance request for HB1355 after the State withdrew part of its request to the USDOJ for preclearance) issued an order last night. The order focuses on two of the HB1355 provisions: “(1) amend the available days and hours that Florida counties may use for early in-person voting, …and (2) amend the voting procedures for registered voters who move between Florida counties and seek to vote in their new county of residence (“inter-county movers”),”
I’m still going through their analysis, but here is the court’s conclusion:
“To summarize, we have reached the following conclusions:
First, we conclude that we cannot preclear Florida’s early voting changes at this time because the State has failed to satisfy its burden of proving that those changes will not have a retrogressive effect on minority voters if the covered counties offer only the minimum number of early voting hours required under the new statute, which would constitute only half the hours required under the prior law. We also conclude, however, that if Florida and the covered counties were to submit a preclearance plan that offered early voting for the maximum number of hours authorized by the new statute, which would be exactly the same number as under the prior law, and did so on a standard 7 a.m. to 7 p.m. schedule, Florida likely would satisfy its burden of proving that the overall effect of its changes in law would be nonretrogressive. Accordingly, we will deny Florida’s request for a declaratory judgment granting preclearance of the early voting changes and dismiss Count Three of the Third Amended Complaint, without prejudice.
Second, we conclude that Florida has satisfied its burden of proving that the changes to the procedures for inter-county movers neither were enacted with a discriminatory purpose nor will have retrogressive effects on minority voters. We will therefore enter a declaratory judgment on Count Two of Florida’s Third Amended Complaint preclearing those changes.
A separate order implementing these decisions will be issued this day.”