Why inconsistent voting rules during presidential primary might be illegal 1 - Florida Independent

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.

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