In the past three weeks, Florida courts and election officials have put new roadblocks in the way for Floridians who want to participate in elections and exercise their right to vote. In three separate cases, the Florida Secretary of State, the Eleventh Circuit Court of Appeals and a federal District Court each issued decisions that will – absent intervention by the Governor, the Secretary of State, or the state legislature – collectively block tens of thousands of eligible Florida citizens from getting on the voter rolls and casting their ballot in the 2008 elections.
These three strikes against Florida voters are only the most recent state laws and actions that, cumulatively, have made Florida the most hostile state in the nation to new voters – particularly in traditionally underserved communities that might otherwise see record-breaking participation in this presidential election year. The current state of participation in Florida is dismal. Recent Census data show that only 65% of the voting eligible population is registered to vote, which is down from 72% in 2004.
Moreover, with less than one month remaining in the State Legislative Session, Florida lawmakers are pursuing additional legislative actions that would make voting even more difficult. Instead, they should support legislative changes that remove unnecessary, bureaucratic obstacles to voting so that all eligible Floridians can register, vote and have their votes counted.
In an election year when Governor Crist is a potential running mate on a presidential ticket, he could be faced with a voting crisis in his own state this fall that would rival the debacle of 2000. Governor Crist, Secretary of State Browning, and the State Legislature each have the power to reverse these damaging trends – if they choose to.
In the past three weeks alone, Florida has failed to live up to its responsibility to ensure all eligible Floridians are able to participate in democracy by making it harder to register and vote:
1) On Monday, March 31st, Secretary of State Browning gave notice in federal court that he is terminating the standstill agreement in League of Women Voters of Fla. v. Cobb – meaning that Florida now intends to enforce a law that threatens to shut down voter registration drives by imposing a series of extremely limited deadlines for the return of voter registration forms and escalating fines on groups and their volunteers alike for innocent filing mistakes.
In 2006, a very similar version of this law was declared unconstitutional in federal court. The state appealed that ruling and the Florida state legislature cosmetically amended the law—leaving its essential, onerous features intact. While Secretary of State had so far agreed to refrain from enforcing the new law, his decision last week to implement it – starting at the end of this month – will effectively keep many voter registration drives away from the communities where they are needed most and thus will disenfranchise thousands of would-be voters across Florida.
After the original registration law went into effect in 2006, the League of Women Voters of Florida stopped registering voters for the first time in its 67-year history. The AFL-CIO and SEIU Healthcare Union also ceased their registration efforts. Black and Hispanic voters and voters from Spanish-speaking households are twice as likely to register to vote through these third-party voter registration drives than white voters or voters from English-speaking households. By making it difficult to conduct voter registration drives, Florida’s law reduces the electoral participation of eligible voters from these and other communities.
2) On Thursday, April 3rd, the 11th U.S. Circuit Court of Appeals in Atlanta reversed the December decision of a U.S. District Court Judge in Gainesville to block a statewide election law that had kept 14,000 eligible Florida citizens off of the voter rolls, and could prevent tens of thousands more from registering and voting in the 2008 elections.
As the Associated Press reported on Friday, Florida’s law essentially “disqualifies any voter registration where the Social Security or driver license numbers on the application can’t be matched with government databases.” Simple data entry typos were keeping eligible voters from getting on the rolls.
A policy like Florida’s “no-match, no-vote” law – a notoriously error-laden practice prone to bureaucratic and human error – was struck down in 2006 by a federal judge in Washington State, and California, Maryland, North Carolina, Pennsylvania and Texas have all scrapped similar rules. Florida is one of few states left that continues to refuse to add new voters to the rolls because of common but meaningless errors, for example:
· A citizen registering as “Bill” might not “match” if his Social Security number is issued under “William”; · A woman’s married name might not match against a database that has her maiden name; · In the 2006 Washington State case, one woman was barred from the rolls when her birthday was mistakenly entered into the system as “1976” instead of “1975”.
As Judge Stephan Mickle ruled last December, Florida’s law “makes it harder to vote by imposing a matching requirement that is a barrier to voter registration.” The matching requirement “is resulting in actual harm to real individuals” and “causes damage to the election system that cannot be repaired after the election has passed.” If it is not stopped now, he wrote, “even more people will be prohibited from registering to vote” and “the harm to a disenfranchised voter would be impossible to repair.”
3) On March 25th, a federal district court in Miami rejected a challenge to yet another portion of Florida’s voter registration law that traps voters based on meaningless mistakes. This provision prevents would-be voters who timely submit a voter registration application before the registration deadline, but inadvertently omit information from the form, to correct the application if the omission is discovered after the registration deadline.
Prior to the 2006 federal elections in Florida, thousands of eligible voters submitted applications on time but neglected to check small boxes on the registration form confirming their eligibility and citizenship. Once they received notice from election officials of the mistake, the voter applicants were prevented by Florida law from correcting the mistake in time for them to participate in the elections.
According to election officials who testified at trial, these events are likely to repeat themselves in the upcoming elections in November.
Each of these legal developments in the past three weeks threatens to disenfranchise thousands of eligible voters in the 2008 elections. Each of these developments also contributes to making Florida a true outlier in the country – piling on provision after provision making it more difficult for eligible voters to register to vote. Each also thumbs its nose at federal protections for voters, including the Help America Vote Act, which was enacted after the 2000 elections precisely to eliminate the unnecessary barriers and errors in the registration process that caused so much trouble for Florida citizens; the Voting Rights Act, which was designed in part to prevent voters from being blocked because of technical errors or omissions; and the U.S. Constitution, which protects the right to vote.
The Broader Context
The three strikes against Florida voters in the past three weeks come atop at least half a dozen other developments that are unfriendly to Florida voters and which threaten to make Florida a national symbol of the need for election reform, once again, in 2008.
Other recent developments that deserve immediate attention and remedies:
· Florida’s failure to comply with Section 7 of the federal Motor Voter law, which requires states to make voter registration available at social service agencies, resulting in significantly fewer low-income and disabled registrants than in states that comply with the law · Florida’s poor record on ballot design, which could cause thousands of lost votes (as happened in 2000 and again in 2006 in Sarasota) · Florida’s failure to implement safeguards against unfair purges of the voter rolls, including its failure to make its purge practices open and transparent, which makes voters vulnerable to another “suspected felon” list like those created in 2000 and 2004 · Current legislative efforts to make Florida’s voter identification law more onerous by prohibiting the use of certain IDs, such as photo IDs issued by nursing homes or state universities · Florida’s failure to provide effective procedures by which to effectuate Governor Crist’s executive order restoring the voting rights for people with past felony convictions
What Election Officials and Legislators Can Do
Both the Secretary of State and state lawmakers have the power and ability to remedy the three recent strikes against Florida voters.
1) The onerous provisions of Florida’s third-party voter registration rules can be immediately repealed in two ways: Secretary of State Browning can issue regulations that administratively remove the extreme burdens of the law; alternatively, the State Legislature can repeal the law so that voter registration drives won’t stop in Florida leading up to the 2008 presidential election.
2) The appellate court upholding Florida’s no-match, no-vote law ruled on two narrow grounds, but declined to decide whether the law was unconstitutional. The plaintiffs intend to return to the lower court and demonstrate that disenfranchising thousands of eligible citizens because of typos is not consistent with the U.S. Constitution. Secretary Browning could save time, uncertainty, and expense by looking for a sensible settlement of the case, or by urging the legislature to repeal the unnecessary and harmful provision.
3) In light of the Florida court’s decision upholding the state’s unforgiving checkbox policy, Secretary Browning can recommend, and the Florida Legislature can enact, legislation that establishes a “grace period” for correcting minor errors on timely filed voter registration applications, so that these applicants may vote in upcoming elections.
Save Florida’s voters from being disenfranchised – again
The legal developments of the past weeks will make it harder for thousands of citizens to register to vote this year, and time is running out. This is a critical moment for Governor Crist, Secretary Browning, and the Florida Legislature to take affirmative steps to protect the right to vote for Florida citizens.
Michael Slater is deputy director of Project Vote. Wendy R. Weiser is a deputy director at The Brennan Center for Justice at New York University School of Law and Elizabeth Westfall is a senior attorney and civil rights lawayer at The Advancement Project.