As House Bill 1355 made its way through the Legislature, critics railed against provisions that would impose new regulations on groups that register voters, reduce the number of days of early voting and require voters who move between counties to vote by provisional ballot.
But after the bill was signed, new threads of controversy, as well as a pair of court challenges, have touched on the way elections officials have interpreted a less-contested procedural provision: its effective date, which for many of its sections (including some of the most controversial) was the moment it was signed into law by Gov. Rick Scott.
The day after the measure was signed, the Florida Department of State issued an emergency rule, which took effect that day and requires groups that want to sign up new voters to register with the department.
Under Florida statutes, emergency rules are temporary measures intended to stave off “an immediate danger to the public health, safety, or welfare.” In this case, according to statements accompanying the rule, the emergency was that supervisors of elections and third-party registration groups may have found themselves in violation of the law if the State Department had not acted right away. As department spokesman Chris Cate explained, “The emergency rule was necessary to meet election law requirements that went into effect when H.B. 1355 was signed.”
The speedy implementation has spawned two lawsuits. The first, ultimately unsuccessful, challenge, by Miami-Dade County mayoral candidate Marcelo Llorente, sought to prevent the law from curtailing early voting in an election already underway. The second, filed Friday by the American Civil Liberties Union of Florida, contends the law cannot be implemented until it has been approved by the Justice Department.
Also last week, the Brennan Center for Justice sent Secretary of State Kurt Browning a letter warning that because the measure cannot take effect immediately in the five Florida counties subject to the Voting Rights Act, the state could be in violation of the statutory requirement that election laws be uniform across the state.
“The issue really is: Should the law be foisted on everybody immediately?” said Jessica Lowe-Minor, executive director of the League of Women Voters, noting that previous laws regulating voter registration groups, which were successfully challenged in court, allowed a buffer period before the changes took effect, during which groups affected by the changes could voice their concerns and the federal government could analyze the changes.
Browning’s explanation, or at least part of it, is that he’s trying to follow the new law as it’s worded and help supervisors of elections do the same, because, as the text of H.B. 1355 says, “Except as otherwise expressly provided in this act, this act shall take effect upon becoming a law.” See, for example, the explanations that accompany the emergency rule governing third-party voter registration groups:
SUMMARY OF THE RULE: This emergency rule implements the statutory requirement for registration in an electronic format, adopts forms for use by organizations and supervisors of elections to account for an organization’s voter registration applications, and removes now outdated language from existing Rule 1S-2.042. The emergency rule is necessary to ensure that third-party voter registration organizations and supervisors of elections are able to comply with a law that became effective on the Governor signing it into law.
SPECIFIC REASONS FOR FINDING AN IMMEDIATE DANGER TO THE PUBLIC HEALTH, SAFETY AND WELFARE: Pursuant to section 120.54(4)(b), Florida Statutes, this emergency rule is a rule pertaining to the public health, safety, and welfare as it involves the interpretation and implementation of the requirements of chapters 97-102 and 105 of the Florida Election Code.
REASONS FOR CONCLUDING THAT THE PROCEDURE IS FAIR UNDER THE CIRCUMSTANCES: The provisions of this emergency rule will ensure that organizations and supervisors of elections will be able to comply with the requirements of law. The Department of State has filed a notice of proposed rule development for Rule 1S-2.042 with the intent to incorporate the text of this emergency rule permanently. A workshop is scheduled for Rule 1S-2.042 on 28 June.
Various groups are arguing on multiple fronts that the State Department’s effort to comply with the effective date of the new law could conflict with existing state and federal laws. How it all shakes out may ultimately be decided in court.