New State Voting Laws II: Protecting the Right to Vote in the Sunshine State

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The Brennan Center for Justice at New York University School of Law thanks Chairman Leahy and the Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Human Rights for providing this opportunity to submit written testimony in advance of the important field hearing, “New State Voting Laws II: Protecting the Right to Vote in the Sunshine State.”

The Brennan Center is a nonpartisan think tank and legal advocacy organization that focuses on issues of democracy and justice. Among other things, we seek to ensure fair and accurate voting procedures and systems and to promote policies that maximize citizen enfranchisement and participation in elections. We have done extensive work on a range of issues relating to voting rights, including work to remove unnecessary barriers to voter registration; to make voting machines more secure, reliable, usable, and accessible; and to expand access to the franchise. Our work on these topics has included the publication of studies and reports; assistance to federal and state administrative and legislative bodies with responsibility over elections; and, when necessary, participation in litigation to compel states to comply with their obligations under federal law and the Constitution. We submit this testimony today in our capacity as national advocates of voting rights committed to (1) preventing efforts, such as Florida’s H.B. 1355 (alternatively “the Law”), to constrict voter registration and participation and (2) promoting improvements that will make our election system secure and accessible to all eligible Americans.  

The harm caused by HB 1355 to Florida voters and community-based voter registration groups is so severe that several organizations and individuals have been forced to turn to the courts for relief. In Florida v. United States, the Brennan Center is co-counsel[1] to the League of Women Voters of Florida (“LWVF”) and the National Council of La Raza (“NCLR”), who oppose HB 1355 because of the harm it will cause to minority voters.[2]  The Brennan Center also represents[3] LWVF, Rock the Vote (“RTV”), and Florida Public Interest Research Group’s Education Fund (“FL PIRG”) in LWVF v. Browning, a broad challenge to the Law on the basis that its provisions violate the U.S. Constitution, the National Voter Registration Act, and the Voting Rights Act.

In this statement, the Brennan Center will detail why the discriminatory provisions of HB 1355 should be struck down. We will also suggest long-term improvements to Florida’s antiquated paper-based registration system that would save the State significant money and time processing paper registration forms, while also increasing the inclusiveness and accuracy of the voter rolls.

Background

HB 1355 is the third and most heavy-handed set of rules and penalties enacted by the State of Florida in the past six years to regulate the community-based voter registration activities of individuals and organizations who advocate for greater voter participation and who help their fellow citizens register to vote. HB 1355’s newly enhanced and tightened restrictions on those constitutionally protected efforts were adopted with barely the pretense of justification, other than to erect additional and unwarranted barriers to registration and voting.

Despite the devastating impact HB 1355 would have on voter participation, this latest step in Florida’s serial effort to repress the voter registration activities of community-based groups sped through the legislative process in 2011. The Florida Legislature considered no evidence demonstrating that such grave restrictions were necessary to prevent voter registration fraud or preserve the integrity of the election process. Nor did HB 1355’s proponents offer any basis at all to conclude that the existing legal regime, including the voter registration law passed just three years ago, has been inadequate to address whatever dangers may exist.

Restrictions on voter registration are particularly troublesome in light of Florida’s declining voter registration rates. In 2004, before Florida began restricting community-based voter registration drives, Florida ranked 33rd in the nation in voter registration rates, with 71.7% of voting age citizens registered. In 2010, Florida dropped to 38th in the nation in voter registration rates, with only 63% of voting age citizens registered.[4] Similarly, the overall number of registration forms received in Florida has steadily declined. From 2000 to 2004, Florida received over 8.6 million voter registration forms. From 2006 to 2010, after restrictions on community-based registration efforts were implemented, the total number of voter registration forms received dropped to just under 3 million.

HB 1355 can only exacerbate these downward trends. And unfortunately, the impacts of this law will fall most heavily on the shoulders of Florida’s voters of color.

In general, community-based voter registration drives register significant numbers of citizens to vote in Florida. According to the U.S. Census Bureau’s Current Population Survey, as of the November 2010 election, 7.3% of all registered voters, which would translate to 585,004 Florida citizens, had been registered to vote through such third-party drives in Florida. Those numbers are significantly higher for communities of color.

As of 2010 in Florida, 10% of African-American registered voters and 12% of Hispanic registered voters in Florida were registered through drives, compared to only 5.3% of non-Hispanic white registered voters.[5] Similarly, African Americans and Latinos registered to vote through voter registration drives at approximately twice the rate as white voters in 2004 and 2008. The large emphasis on voter registration drives in Florida is one major reason why racial disparities in voter registration are lower in Florida than most states. But, due to HB 1355, many organizations and individuals, including those that specifically reach out to minority communities, have been forced to suspend or severely curtail their voter registration efforts.  

Unsurprisingly, during its consideration by the legislature, HB 1355 was strongly opposed by minority leaders in Florida. And, because of HB 1355’s disparate impact, numerous civil rights organizations and individuals have intervened in Florida v. United States to illustrate how the law harms minority voters.[6]

The Law Severely Burdens Community Voter Registration Efforts

The experiences of the League of Women Voters of Florida (LWVF), Rock the Vote (RTV) and Florida Public Interest Research Group Education Fund (FL PIRG)—three volunteer-driven, non-profit organizations with long histories of helping to register voters in Florida—illustrate the myriad burdens imposed by HB 1355.

• The LWVF is the Florida affiliate of the national League of Women Voters. Central to the group’s mission is encouraging the informed, active participation of citizens in government, including voter registration. LWVF has approximately 2,800 current dues-paying members, and a list of about 9,000 members, supporters, and volunteers who receive regular communications. LWVF conducts voter registration drives via 29 local chapters throughout Florida. These local voter registration efforts are wholly volunteer-run and are central to LWVF’s ability to engage with its membership and volunteers. Voter registration goes hand-in-hand with virtually all of LWVF’s public education efforts, as well as many of their advocacy activities.

Many of LWVF’s outreach activities are directed at traditionally underrepresented communities. For instance, the Orange County League spearheaded the “Vamos A Votar Coalition,” a nonpartisan campaign to increase Hispanic voter participation in Central Florida and statewide. And, the Miami/Dade County League reaches out to historically underrepresented communities in their county by publishing registration information in English, Spanish, and Creole. Similarly, some local Leagues, including the Jacksonville/First Coast League, regularly attend naturalization ceremonies in their communities. There, they introduce new U.S. citizens to one of the most important opportunities and responsibilities of citizenship by assisting them in registering to vote.

• RTV is a national organization whose fundamental mission is to build political power for young people by increasing their registration and voter turnout rates. Critical to that mission are the organization’s efforts to register young people to vote and to encourage them to vote on election days. RTV has approximately 1.5 million members in its national database, including approximately 82,000 members in Florida. RTV makes voter registration forms and instructions available on its website and conducts in-person registration drives staffed by volunteers at college campuses and in other locations.

RTV also offers a “Democracy Class” curriculum for local educators that teaches students about the importance of voting and offers registration opportunities. RTV provides a “toolkit” of materials that teachers can use to supplement their class instruction about civic engagement and the right to vote. It includes a video about the right of 18-year-olds to vote, lesson plans for staging a mock election in class, and a set of voter registration materials for the students.

• FL PIRG is an affiliate of the national Public Interest Research Group and strives to ensure equal access to the political process by, among other things, registering voters. FL PIRG focuses its voter registration efforts on student populations within Florida, and since the 2004 election cycle, it has registered approximately 23,000 Floridians. FL PIRG hires and trains campus organizers, often recent college graduates, to plan and organize voter registration drives at college campuses around the country. FL PIRG also conducts door-to-door registration drives.

FL PIRG’s voter registration efforts have been particularly successful in engaging minority citizens. For example, in 2008, 42% of the citizens FL PIRG registered self-identified as members of a racial or ethnic minority group.

Voter registration is clearly a central part of each of these groups’ missions. HB 1355 creates a laundry list of restrictions that severely impede such community-based voter registration efforts, and transforms the act of assisting others to register to vote into an exceedingly complex and highly risky activity. For example, HB 1355 imposes, under threat of severe financial penalties and potential criminal prosecution, a requirement on any person (not just on organizations) to pre-register with the State in order to “solicit” or “collect” voter registration applications, and requires such persons or organizations to track and report on every single voter registration application that they handle, including applications that are never completed or collected.[7] HB 1355 also requires that every completed voter registration application be delivered to the State within an arbitrarily narrow and unnecessarily prohibitive 48-hour window, under the penalty of strict monetary fines.[8] Moreover, HB 1355 sets forth vague but ominous penalties for even a minor, unintentional act of noncompliance with any provisions of the Law.[9]

As detailed in their sworn affidavits submitted in support of a motion seeking a federal court order to enjoin the Law,[10] because of its burdensome restrictions, LWVF, RTV, and FL PIRG have all ceased, or dramatically cut back, their voter registration efforts in Florida.    

• Ms. Macnab, President of the League of Women Voters of Florida, explains: “As a result of the new Law, LWVF has ordered a statewide cessation of voter registration until the Law is enjoined or limited in such a way as to substantially reduce the organizational and financial risk to the League, its members, and volunteers…The local Leagues operate on a decentralized model with an all-volunteer force, which has successfully registered tens of thousands of Floridians to vote over the last 72 years without incident. The 48-hour requirement would require LWVF and its local Leagues to dramatically revise their procedures in a manner that would require volunteers to become detailed timekeepers and create strict schedules to ensure that forms were handed in before the clock strikes 48 hours—and do all this under the ticking time bomb of civil penalties and fines.” Moreover, “[m]any LWVF volunteers are elderly and depend on others for transport. They may have a particularly hard time meeting the 48-hour deadline.” Ms. Macnab goes on to explain how voter registration activity is crucial to the LWVF’s ability to recruit new volunteers and retain active members: “Helping other Floridians to register to vote is one of the most popular and effective volunteer opportunities with LWVF, and it has consistently been one of the best ways to get new volunteers invested in our work…I have come to believe that individuals who begin volunteering even a few hours helping to register their fellow citizens to vote find the activity extremely rewarding and feel a sense of purpose and connection to their democracy. Many, if not most, of our seasoned volunteers, stalwart supporters, and State Board members began volunteering their time at a LWVF voter registration drive table. My own very first hour spent volunteering with LWVF was behind such a table.”     

See Exhibit B for Ms. Macnab’s full affidavit detailing HB 1355’s impacts on the LWVF’s voter registration activity.

• Rock the Vote’s community-based voter registration activity in Florida has also ceased in the face of HB 1355’s extreme requirements. In the words of President Heather Smith, “RTV is extremely concerned that the Law will make it exceedingly difficult to encourage student volunteerism with us. The Law now requires each ‘registration agent’ to sign a sworn form detailing severe felony penalties that result from false registration. While we train our volunteers to ensure no one falls afoul of these laws, introducing a student to civic participation and volunteerism via a list of felony penalties, in turn signed under felony penalty of perjury, is intimidating and scary for many students. The nature of the required form will lead to fewer students who are willing to participate in and volunteer in RTV’s voter registration activity, particularly on a spontaneous basis.” Likewise, Ms. Smith affirms that “[T]here is no question that we will have to drastically cut back, or perhaps discontinue, our registration efforts in Florida. We have already suspended our Democracy Class program and our in-person voter registration work in the state of Florida since the Law’s passage.”  The cessation of RTV’s Democracy Class in Florida is particularly significant because RTV has “had to turn down requests from individuals and teachers in Florida to collaborate on voter registration activity due to the Law’s burdensome new requirements.”  This is because HB 1355 will prevent RTV from incorporating voter registration into Democracy Class. “Without the voter registration component,” Ms. Smith explains, “Democracy Class will be significantly less effective in advancing RTV’s mission of getting young people involved in the political process.”

See Exhibit E for Ms. Smith’s full affidavit detailing HB 1355’s impacts on RTV’s voter registration activity.

• Brad Ashwell, Advocate for Florida PIRG, explains how HB 1355 similarly impacts his organization’s ability to engage in voter registration: “FL PIRG will have to require every person assisting with voter registration to sign sworn statements threatening criminal prosecution for false registrations before they can engage in registration activities. From my experience working with students and other young people, I believe the intimidating registration agent form will significantly burden FL PIRG’s ability to recruit volunteers. Some students will hesitate to join our volunteer efforts, particularly those drawn in spontaneously, if they must first sign a form listing multiple felony penalties. Moreover, certain school administrators will not want their students to participate in voter registration drives for fear of fines or reputational damage to the school.” Furthermore, Mr. Ashwell explains, “The Law’s requirement that forms be submitted within 48 hours of collection will be extremely difficult to comply with in many circumstances. The 48-hour turnaround time is particularly troubling as it relates to FL PIRG’s frequent voter registration work during the evening. Nighttime events are extremely effective on campus, after classes are over and when students have more time to complete voter registration applications. But under the law, conducting voter registration efforts after 5:00 p.m. becomes more complicated because of the 48-hour requirement.” 

See Exhibit F for Mr. Ashwell’s full affidavit detailing HB 1355’s impacts on the FL PIRG’s voter registration activity.

Though it has been in effect for only a short time, the onerous burdens of HB 1355 are already clear. Multiple groups, whose charitable missions revolve around protecting and expanding the franchise, have ceased or significantly curtailed their registration activities throughout the State out of fear that they will be unable to comply with HB 1355’s requirements and thus be subject to fines, crippling civil and criminal penalties, and devastating reputational harm. HB 1355’s severe restrictions effectively preclude these groups from advancing a shared belief in the importance of participatory democracy and widespread voter registration.

Policy Recommendations

Rather than making it more difficult for Floridians to vote, the State should be working to encourage widespread participation and increase voter registration rates. Responsibility for voter registration must be transferred from the citizens to the government, and Florida must upgrade its registration process. Florida’s antiquated, paper-based registration system is expensive, inefficient and prone to errors which can disenfranchise voters.

Current voter registration requirements place the onus of registering on the voter, and block the proper functioning of an inclusive democratic system. Our country’s traditional voter registration system was not designed for a mobile society where one in six Americans moves every year. Of the 57 million citizens who were not registered to vote in 2000, one in three was a former voter who had moved but failed to register. Unsurprisingly, registration problems alone kept up to 3 million eligible Americans from voting in 2008.   

Four key components are necessary for Florida to modernize its voter registration system: automatic registration, permanent registration, online registration, and Election Day registration.

• Automatic Registration: Florida should automatically register eligible citizens to vote using available databases maintained by motor vehicle authorities and other state agencies, as well as federal databases such as the Selective Service.

• Permanent Registration: When voters move within a state, they should stay on the voter rolls. HB 1355 has taken Florida a step backwards in time: it eliminated Florida’s longstanding and successful practice of permitting movers to make any in-state address change at the polls. Voters should remain permanently registered unless they move from the state.   

• Online Registration: Florida should make this convenient form of registration available. Studies show that online registration is more secure and cost-effective than paper. While Florida offers its voter registration form online to complete and print, it should take the next step and develop a system that permits voters to submit and update their voter registration online.

• Election Day Correction: Florida should allow eligible citizens to register and correct their registration on Election Day. This has already been implemented in many states, and technological advances ensure that it can be done securely. It serves as a fail-safe measure to prevent voters from being disenfranchised by registration errors.

There is simply no reason to make people navigate a cumbersome, 19th-century model of voter registration when there are more efficient, cost-effective, and reliable methods available.  In a modernized voter registration system, information contained in existing databases—such as those held by state departments of motor vehicles, public assistance agencies, state tax authorities or, for example, the federal Selective Service list—would be sorted and sent to election officials. After checks to verify citizenship and avoid duplicate registration, these citizens would be automatically registered to vote. Alternatively, citizens could register through a secure online system. On Election Day, any eligible voter whose name did not appear on the voter rolls or whose name appeared with inaccurate information could correct her registration and vote a regular ballot, rather than being turned away or forced to vote provisionally. States that have implemented these reforms have enjoyed increased registration rates, cost savings, and fewer registration errors. Florida has already adopted reforms in the wake of the federal “motor voter” law, and therefore already has many of the tools needed to fully implement these reforms. Voter registration modernization would help remove a needless obstacle that prevents millions from voting. Florida’s leaders should follow this approach instead of making registration even more difficult.

By implementing common-sense reforms, Florida can ensure that more citizens are registered to vote while reducing burdens on election officials. These steps would not only boost Florida’s dismal voter registration rates, they would save the State money in the long run. Florida should overturn the Law’s unreasonable restrictions on community-based voter registration and instead adopt common-sense reforms to modernize voter registration.

[1] Our co-counsel in Florida v. United States are the Lawyers’ Committee for Civil Rights Under Law and the law firm Bryan Cave, LLP.

[2] Under the federal Voting Rights Act, changes to Florida’s election laws must be “precleared” by the United States Department of Justice or through a lawsuit in the D.C. federal court.  Florida is currently seeking preclearance by a D.C. federal court in the case Florida v. United States.

[3] Our co-counsel in LWVF v. Browning are law firm Paul, Weiss, Rifkind, Wharton & Garrison LLP, the ACLU of Florida, and law firm Coffey Burlington.

[4] Data obtained by creating custom tables with the Current Population Survey (CPS) Table Creator for 2004 and 2010, respectively. U.S. Census Bureau, Current Population Surveys (Nov. 2004; Nov. 2010). The rate of new voter registrations in Florida from 2006 to 2010 similarly mirrors the overall decline in registered voters. From January through October 2006, there were 479,611 new and valid voter registrations in Florida, compared to 363,545 in the same period in 2010, a 24.2% decline. See Florida Division of Elections, Voter Registration Statistics, http://election.dos.state.fl.us/NVRA/reports.shtml; Voter Registration Year To Date Report, October 2006: http://election.dos.state.fl.us/voter-registration/archives/2006/October/YTDTotal.pdf; Voter Registration Year To Date Report, October 2010: http://election.dos.state.fl.us/voter-registration/archives/2010/October/YTDTotal.pdf.

[5] U.S. Census Bureau, Current Population Survey (Nov. 2010).

[6] Attached as Exhibit A is a letter by the Brennan Center and the Lawyers’ Committee for Civil Rights Under Law further detailing these racial impacts, which was submitted to the Justice Department in opposition to the preclearance of the Law, on behalf of the National Council of La Raza and the League of Women Voters of Florida.

[7] Fla. Stat. §§ 97.021(37), 97.0575; Fla. Admin. Code Ann. R. 1S-2.042.

[8] Fla. Stat. § 97.0575(3)(a).

[9] Id. §§ 97.0575(4), 104.41.

[10] Each of these affidavits, which are quoted in part in this statement, are appended in their entirety as exhibits B-F.