Why inconsistent voting rules during presidential primary might be illegal

By | 11.04.11 | 11:20 am

Pic by samantha celera, via Flickr

Because the state was denied an expedited hearing for its new voting laws, Florida might find itself conducting a presidential primary with two different sets of elections laws. An elections expert writes that if this is the case, the state would be in violation of its own statutes.

Last week, a U.S. District Court denied a request by the state for an expedited hearing on whether Florida is adhering to the Voting Rights Act in the state’s five counties requiring federal preclearance. Florida has already begun implementing the new law in the state’s other 62 counties, but cannot do so in the five preclearance counties until the federal government OKs the new law.

Dr. Daniel Smith, president of ElectionSmith and a professor at the University of Florida, points out that “in denying the state’s request for an expedited hearing and decision, the federal district court’s decision to wait until May to hear oral arguments has virtually assured that the January 31 [Presidential Preference Primary] will be conducted with two sets of election laws.”

The Americans Civil Liberties Union of Florida, one of the interveners in the case, echoed this argument following the decision. The group said in a statement that “because Governor Scott and Secretary of State Browning moved ahead to implement the law without waiting for federal approval, one major result of the ruling is that Florida will conduct its January Presidential Preference Primary with two sets of election laws in the state.”

If this is the case, the state could be violating its own laws.

The Brennan Center for Justice wrote a letter to Browning this past June warning him that implementation of the new voting laws before federal preclearance could violate state statutes.

In a letter to Browning, the group wrote:

On behalf of the undersigned organizations, we write to urge you to reconsider Directive 2011-01, directing Florida Supervisors of Elections immediately to implement the provisions of House Bill 1355, which was signed into law on May 19, 2011 [H.B. 1355]. This Directive is inconsistent with Florida law and longstanding Florida practice as confirmed by formal rulings of the Florida Division of Elections. Under Florida statute § 97.012 and prior advisory opinions by the Division, the Secretary of State has a duty to ensure uniformity in the application, operation, and interpretation of the state’s election laws. Applying HB 1355’s extensive changes to the voting and voter registration process only in certain counties, but not in the five counties for which preclearance is required under the federal Voting Rights Act before implementing voting changes, clearly conflicts with this legal mandate.

Florida law requires the Secretary of State to “[o]btain and maintain uniformity in the interpretation and implementation of the election laws” and “[p]rovide uniform standards for the proper and equitable implementation of the registration laws.” Fla. Stat. § 97.012(1). By calling for non-uniform implementation of Florida election laws, Directive 2011-01 conflicts with the plain language of Fla. Stat. § 97.012(1), and frustrates the legislative intent to ensure that voters in all Florida counties know how to cast a ballot that counts.

The Brennan Center points out that a dual voting system would affect three different election procedures.

“The application of H.B. 1355 to only some Florida counties would lead to the absurd result that the same third party voter registration organization is subject to two wholly separate sets of law depending on the counties in which it is working, making compliance with the law impossible,” the Center wrote.

“Would, for example, the League of Women Voters of Florida be subject to the law’s requirements if it engaged in voter registration activity only in the five counties covered by the VRA,” the group wondered, “or would such activity subject it, as a statewide organization, to the penalties contained in H.B. 1355?”

The group also argues that the change of address provisions in H.B. 1355 would “prevent voters who move out of the county in which they are registered from casting a regular ballot at the polls on Election Day.”

“If one or more counties implement this section prior to preclearance, the right of a voter who has recently moved between counties to cast a regular ballot on Election Day will depend on the county to which the voter has moved,” the group wrote.

Lastly, the group took issue with the reduction in the number of early voting days in the new law.

“If a county enforces early voting changes before H.B. 1355 may be enforced statewide,” the group wrote, “voters in one county who come to the polls on the Sunday before an election will find the polls closed at the same time as voters in other counties will be allowed to cast a ballot.”

“This is precisely the type of dual voting system that Florida law, and prior Elections Division opinions, prohibit,” the Brennan Center argued.

Smith points out that this would also be in violation of federal law, as well.

At his election blog, Smith wrote:

In 2002, Congress passed and President Bush signed into law the Help America Vote Act of 2002 (HAVA). HAVA was Congress’s effort to clean up the mess in Florida resulting from the 2000 presidential recount. In order for Florida and other states to receive the billions of dollars appropriated to improve the electoral process, state elections officials were required to implement numerous reforms mandated under HAVA.

Among its many provisions, HAVA requires that the states “implement in a uniform and nondiscriminatory manner, a single, uniform, centralized, interactive computerized statewide voter registration list defined, maintained, and administered at the state level.” By most all accounts, Florida achieved by the January 1, 2006 federal deadline, with the Florida Voter Registration System (FVRS).  The implementation of HB1355 in 62 counties, but not the other 5, is clearly in violation of HAVA.

Florida Secretary of State Kurt Browning has filed a complaint challenging sections of the Voting Rights Act. He claimed that federal preclearance requirements for state election laws are “unconstitutional.”

Howard Simon, executive director of the ACLU, said in a statement that Browning’s challenge to the law was “an admission that they know that the federal courts are likely to find that the Voter Suppression Act passed this year is a serious threat to the voting rights of Florida’s language and racial minorities.”

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