During a conference call with reporters explaining a lawsuit challenging the rapid implementation of Florida’s new election laws, lawyers helping to bring the case for the American Civil Liberties Union said the changes could not be implemented before they are approved by the U.S. Department of Justice.

The lawyers pointed out that Florida’s own Division of Elections said so, in a 1998 legal memo (.pdf).

It was August. The state was gearing up for statewide elections, but the Justice Department had yet to approve a new set of voter ID requirements, rules for absentee ballots and other changes to state election laws.

In the memo, the division issued a set of instructions. To wit: “The effective date of any such laws are delayed until such preclearance is obtained.”

Some of the provisions had been approved, or had not drawn objections from the Justice Department. Those could take effect. Others had drawn objections, or required new rules to be developed by Florida counties, including the five subject to federal “preclearance” under the Voting Rights Act. Those were to remain on hold, statewide:

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.

A spokesman for the Florida Department of State said that the opinion in that memo does not apply this time around. Asked why, he said the department’s legal team was preparing a response (see update below).

Secretary of State Kurt Browning said after the bill was signed that those counties were not expected to hold elections until the fall, by which time he said he was “confident” the changes would be approved by the federal government.

The changes take effect upon becoming law, so Browning noted in a directive that elections officials had to implement it immediately, though he told reporters that the changes would be on hold in the five counties covered under Section 5 of the Voting Rights Act.

ACLU elections lawyer Laughlin McDonald said case law describes changes not approved by the Justice Department with phrases like “null and void” and “cannot be implemented” in jurisdictions covered by the preclearance requirements, and that therefore Florida’s law should be on hold statewide. We’ll provide an update if we here back from the State Department.

Update:

Department of State spokesman Chris Cate explained in a statement why the department believes the earlier opinion does not apply:

The circumstances are much different. For instance, that opinion was written after the DOJ had already raised objections and it was on the eve of an election.

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