Federal Court Blocks Discriminatory Early Voting Changes in Florida

August 20, 2012

A three-judge panel of the United States District Court for the District of Columbia ruled late Thursday night that Florida may not implement new early voting procedures under Florida’s House Bill 1355, which was signed into law last year by Governor Rick Scott.  The Court found that the new procedures, which would have allowed counties to reduce their early voting periods from 96 hours to as little as 48 hours, were likely to have a racially discriminatory effect and therefore cannot be enforced in five Florida counties – Collier, Hardee, Hendry, Hillsborough and Monroe – covered under Section 5 of the Voting Rights Act.

"The Court's ruling clearly recognizes that our Legislature's slashing of early voting days is harmful to Florida voters and minority voters in particular,” said Deirdre Macnab, president, League of Women Voters of Florida. “The League says 'shame' on our state leaders for making it harder for main street Florida to have their voices heard when so much is at stake for our communities." 

Section 5 of the Voting Rights Act requires covered states and counties to obtain “preclearance” for new voting procedures from the U.S. Department of Justice (DOJ), or from the U.S. District Court for the District of Columbia.  Florida originally submitted the new law to DOJ for review. In opposition, the Lawyers’ Committee for Civil Rights Under Law and the Brennan Center for Justice at New York University School of Law submitted detailed comments to DOJ, on behalf of the League of Women Voters of Florida and National Council of La Raza (NCLR), demonstrating that the law would disproportionately harm Florida’s minority voters. Before DOJ made its decision, Florida withdrew the early voting changes and several other new procedures, and filed suit in the D.C. Court. 

The League of Women Voters and NCLR then intervened in the lawsuit as defendants represented by the Lawyers’ Committee, the Brennan Center for Justice and the law firm of Bryan Cave LLP. The D.C. Court issued a 119-page opinion, accompanied by extensive factual findings. The Court summarized its ruling as follows: “we conclude that we cannot, at this time, preclear Florida’s early voting changes because the State has failed to satisfy its burden of proving that those changes will not have a retrogressive effect on minority voters.” The Court left the door open for the individual covered counties to obtain preclearance for non-retrogressive early voting hours. 

"Early, in-person voting in Florida has been a tremendous success. The Court rightly recognized that the State's attempt to reduce such early voting would have a significant, adverse effect on minority voters. Florida's election-law changes were nothing more than an attempt at voter suppression, which the Court correctly rejected," said Matthew McClellan, Associate Director, Issue and Advocacy Campaigns, National Council of La Raza.

“Voting is not a privilege reserved for the few,” said Bob Kengle, co-director Voting Rights Project at the Lawyers' Committee for Civil Rights Under Law. “Congress renewed Section 5 of the Voting Rights Act in 2006 because it concluded that even today some states would try to turn back recent progress in expanding the franchise. In blocking these discriminatory changes, Section 5 did exactly what Congress meant it to do.” 

"The Court recognized that the Sunshine State's attempt to cut back on early voting is unfair to many voters," said Diana Kasdan, counsel, Democracy Program, Brennan Center for Justice.  "This is another victory for voters against the continued attempts by politicians to manipulate access to the polls. It should send a clear message that in a participatory democracy, expanding the franchise is the only acceptable way to run elections."

The Court granted Section 5 preclearance to changes in the procedures for registered voters who move between Florida counties, based upon representations by Florida that provisional ballots cast under the new procedures will not be rejected if election officials run out of time to examine them.

"The Court's decision is a significant victory for our clients, the League of Women Voters of Florida and the National Council of La Raza, as well as for the voters of the State of Florida,” said Dan O’Connor, an associate with Bryan Cave LLP. “Based on an extensive record, which included more than 11,000 pages of testimony, expert reports and other significant evidence, the Court determined 'that minority voters will be disproportionately affected by the changes in early voting procedures' and that the change in the law 'would impose a sufficiently material burden to cause some reasonable minority voters not to vote.' In rejecting Florida's attempt to restrict access to the ballot box, the Court reaffirmed the continuing importance of the Voting Rights Act."

The decision did not address multiple limitations on the ability of citizens and grassroots organizations to conduct voter registration drives, including pre-registration with the state before conducting voter registration activities, monthly accounting of all registration forms used and not used in voter registration drives, and a requirement that completed registration forms generally be delivered to election officials within 48 hours of receipt from the voter.  Separate litigation in Florida will prevent a number of those voter registration changes from going forward, and as such, the Court deferred ruling on those provisions while DOJ reassesses the remaining provisions.