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Federal court rejects Florida’s changes to early voting

By on August 18, 2012

Facing a potentially razor thin race in a critical swing state, a three-judge federal panel has rejected as discriminatory a provision of a state law passed last year that reduced the number of early voting days, but offered Florida election officials a way to make the changes comply with the federal Voting Rights Act, reports Brandon Larrabee of the News Service of Florida.

The ruling, released late Thursday, marked the latest step in a widespread legal battle over HB 1355, a sweeping 2011 overhaul of the state’s elections laws that supporters say is a crackdown on fraud but critics have labeled the “Voter Suppression Act.” The bill passed both Republican-led chambers on party line votes.

In the ruling, U.S. Circuit Court (appellate) Judge Merrick Garland and District Court Judges Colleen Kollar-Kotelly and Ellen Huvelle said the reduction of early voting days hurt black voters, but upheld new restrictions on when voters can change their addresses on the state’s voter registration rolls.

The immediate effect of the ruling from the panel in Washington, D.C. — part of a process known as preclearance — was to invalidate the early-voting limits in the five counties that must apply for federal approval of any voting changes because of a history of racial or language discrimination.

The impact of the panel’s decision was limited, however, because local elections officials couldn’t implement the revisions in those five counties — Collier, Hardee, Hendry, Hillsborough and Monroe — without preclearance.

Under HB 1355, with passed the House 77-38 and was approved by the Senate on a 25-13 vote, the number of days for casting ballots before an election was reduced from 14 to eight. Local elections officials could decide to keep polling places open for up to 12 hours a day, to ensure the same number of early voting hours, but they were not required to do so.

The judges said that change violates the Voting Rights Act because black voters are more likely to vote early than white voters.

“In sum, Florida is left with nothing to rebut either the testimony of the defendants’ witnesses or the common-sense judgment that a dramatic reduction in the form of voting that is disproportionately used by African-Americans would make it materially more difficult for some minority voters to cast a ballot than under the benchmark law,” they wrote.

Critics of the legislation hailed the ruling.

“We have stated from the beginning that this law was passed to be a roadblock for minority voters and to make it harder for them to exercise their fundamental right to vote,” said Howard Simon, executive director of the American Civil Liberties Union of Florida.

But the ruling also leaves an opening for the state to keep the change. The judges wrote that a preclearance request definitively including 12 hours of early voting per day in the affected counties would likely pass muster.

A spokesman for Gov. Rick Scott said in an email Friday that the state is already working on making that change.

“The next step is figuring out how best to satisfy the court’s guidance related to early voting in time for the November election,” wrote the spokesman, Lane Wright. “Our general counsel and attorneys for the Department of State are analyzing the 119-page ruling to determine the best way to proceed.”

Rep. Dennis Baxley, the Ocala Republican who sponsored the bill but said the early-voting provision was a Senate idea, said he considered the ruling a favorable one because he thought most supervisors would take advantage of the 12-hour days. He also applauded the decision upholding restrictions on when voters who move from one county to another can change their address.

“I think, over time, we’re finding that this statute is reasonable,” he said.

Overall, 78 of the 80 changes submitted to federal officials have been approved, with all but three of them getting the go-ahead from the U.S. Department of Justice. Preclearance is usually done through the DOJ, but state officials headed to court with the most controversial changes when it became obvious that the agency was prepared to reject them.

Thursday’s ruling, at least temporarily, continues a situation in which some provisions of HB 1355 are in place in most counties but will not be enforced in the preclearance counties. Critics say that violates state laws requiring a uniform elections system — an argument that is also being played out in other challenges to the law.

“The current situation must be rectified promptly to avoid voter confusion, disenfranchisement and chaos like what our state faced in the 2000 presidential election,” said Rep. Perry Thurston, D-Plantation, who is scheduled to lead his party’s House caucus later this year.

A separate challenge to that aspect of the law’s implementation is already winding its way through the Department of Administrative Hearings — though the DOAH case is likely to be just the first phase of that legal battle. A separate federal court struck down new regulations on voter registration groups in May.

And the three-judge panel still must rule on two more issues: Whether a new version of the voter-registration regulations revised after the May ruling can be precleared; and what to do with a state challenge to portions of the Voting Rights Act.

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