Early Voting Litigation in Florida
HB 1355, the omnibus elections bill signed into law by Gov. Scott in May 2011, instituted a shorter early voting period, taking the window from no fewer than 12 days (which would be Oct. 22-Nov. 4) to eight days (Oct. 27-Nov. 3).  One might expect that the shorter period would automatically apply to all 67 Florida counties.  However, five counties (Collier, Hardee, Hendry, Hillsborough, and Monroe) are covered by Section 5 of the Voting Rights Act and pre-clearance from the U.S. Department of Justice or approval by a three-judge panel was required before changes that could affect voting rights were made.  Congresswoman Corrine Brown (D) filed a lawsuit in July 2012 charging the change would unduly affect African American voters.  Meanwhile, Florida had gone to a three-judge panel of the U.S. District Court for the District of Columbia which, on Aug. 16, 2012, ruled in State of Florida v. United States of America (+) that "the State has failed to satisfy its burden of proving that those changes will not have a retrogressive effect on minority voters."  The State of Florida prevailed on Sept. 12, 2012 when the DOJ granted preclearance, and on Sept. 24, 2012 U.S. District Judge Timothy Corrigan in Jacksonville, Florida ruled in Brown v. Detzner [PDF] that "that the new law will not impermissibly burden the ability of African Americans to vote."

See Also: ElectionSmith.  Dr. Daniel A. Smith, professor at the University of Florida, who has done work for the plaintiffs, has written extensively on this subject.

PRESS RELEASE from Congresswoman Corrine Brown (FL-3)
July 27, 2012
Congresswoman Corrine Brown Files Federal Lawsuit Over Early Voting Law

(Washington, DC)  Congresswoman Corrine Brown, along with the Southern Christian Leadership Conference-Jacksonville chapter, several individual Duval residents, and the Duval County Democratic Executive Committee, will file a federal civil rights lawsuit to ensure that unconstitutional and discriminatory changes to the early voting laws are not implemented.
 
The August primaries will be the first time Florida is affected by the changes to early voting, which were passed by the state legislature last session. Early voting was instituted after the debacle of the 2000 elections when thousands were turned away from overcrowded polls. Since 2004, Floridians have had access to the polls for eight hours a day, for fifteen days right up until the last Sunday before election-day. The new law reduced early voting to ten days, gave county supervisors arbitrary discretion over the number of hours polls are open, and eliminated voting on the last Sunday.
 
The lawsuit asks the United States District Court for the Middle District of Florida in Jacksonville to enjoin the Florida Secretary of State and Duval County Supervisor of Elections from enforcing the discriminatory and arbitrary changes to early voting in the state of Florida and in Duval County. Specifically, these changes violate the First and Fourteenth Amendments to the United States constitution, Section 2 of the Voting Rights Act of 1965, 42 U.S.C. and 1973 (a) and the Florida constitution. 
 
“Early voting has worked extremely well for all Floridians and especially for African American voters,” said Congresswoman Brown. “In fact, more than any other racial or ethnic group, African Americans have come to rely on early voting.”
 
According to Dr. Daniel A. Smith, Professor of Political Science and Research Professor at The University of Florida, in the 2008 general election, African Americans cast 22% percent of the total early vote, even though blacks comprised just 13% of the state’s registered voters. More African Americans vote during the early voting period than on election-day or via absentee ballot combined. Perhaps most strikingly, in 2008, African Americans accounted for roughly 34% of votes cast on the Sunday before the election. These trends are amplified in Duval County where 58% of African Americans voted early in 2008. In last year’s local elections, African Americans cast roughly 34% of the early votes, even though they comprised less than 30% of the electorate, and on the final Sunday of early voting, more African Americans came to the polls than did whites.

“There is absolutely no explanation for restricting early voting other than intentional voter suppression. In fact, it seems that Governor Scott simply does not want people to vote. We should be making it easier for people to get to the polls, not harder,” the Congresswoman declared.
 
“It is particularly fitting that I am filing this lawsuit at The John Milton Bryan Simpson United States Courthouse,” Congresswoman Brown pointed out. “I sponsored the bill that named this courthouse for Judge Simpson because he was a giant in the civil rights movement here in Jacksonville. Among other things, his orders led to the passage of the Civil Rights Act, and desegregated the schools, city pools, city golf courses, and the city zoo. I know Judge Simpson would not stand for such a blatant attempt to exclude African Americans from the polls.”
 
Congresswoman Brown and the other plaintiffs are represented by Neil Henrichsen of Henrichsen Siegel in Jacksonville www.hslawyers.com.
PRESS RELEASE from Congresswoman Corrine Brown (FL-3)
August 17, 2012
Congresswoman Brown Praises Ruling on Expanded Early Voting

Congresswoman Corrine Brown praised the ruling by the United States District Court for the District of Columbia that requires Florida to expand in-person early voting in November. The ruling applies only in five counties covered by the Voting Rights Act of 1965. A lawsuit filed by Congresswoman Brown, along with the Southern Christian Leadership Conference-Jacksonville chapter, several individual Duval residents, and the Duval County Democratic Executive Committee, would expand early voting days and hours in the entire state.
 
“Today’s ruling validates the key claims of our lawsuit,” Brown said. “There is no question that African Americans disproportionately rely on early in-person voting and changing the rules is likely to result in fewer of them voting. The court rightly saw through the state’s failure to provide any explanation for restricting the opportunity to vote. I am very confident this ruling will eventually be applied to the entire state.”
 
A 2011 law reduced early voting to eight days from twelve, gave county supervisors wide discretion over the hours polls are open, and eliminated voting on the last Sunday before election day. The court found that reducing in the number of hours available for early voting imposes a material burden on minority voters that is impermissible under the Voting Rights Act.
 
“Florida has failed to meet its burden of showing that retrogression would not occur if the covered counties not only reduced the number of early voting days from 12 to 8 as required by the new law, but also reduced their total early voting hours from 96 to 48 (regardless of the specific hours chosen),” the court held. The court noted that under the law, county election officials would be free to open polls during the week during business hours when most people are at work. Testimony from election officials acknowledged that curtailed early voting hours will lead to substantially longer lines during early voting and election day. Longer lines are likely to discourage people from voting, the court said.
 
On September 19, Judge Timothy Corrigan of the United States District Court for the Middle District of Florida will hear Congresswoman Brown’s motion for a preliminary injunction to start early voting 15 days before Election Day and to continue it through the Sunday before Election Day with guaranteed hours.
PRESS RELEASE from Congresswoman Frederica Wilson (FL-17)
August 17, 2012
Congresswoman Wilson's Statement on Federal Court Ruling on Florida's New Early Voting Law

WASHINGTON, D.C. – Today, Congresswoman Frederica Wilson (D-Fla.), issued the following statement on the U.S. District Court’s ruling blocking Florida’s new early-voting law from taking effect in the five counties covered by Section 5 of the Voting Rights Act of 1965:

“While I am encouraged by the court’s ruling to block Republicans’ attempts at curtailing early voting in five counties covered by Section 5 of the Voting Rights Act of 1965, I am disheartened that the rest of Florida’s voters have to live under the new law. We now have two separate sets of rules for voters. It’s unconscionable and it will be confusing. Inevitably, it will lead to college students, minorities, seniors and others being disenfranchised.  

“We must do everything in our power to educate Floridians on how they can exercise their Constitutional right to vote. The best way to guarantee that your vote counts is to get an absentee ballot. To contact the Miami-Dade Elections Department, call (305) 499-8444 or visit http://www.miamidade.gov/elections/vote_absentee.asp. For the Broward County Supervisor of Elections, call (954) 357-7050 or visit http://www.browardsoe.org/content.aspx?id=30.”

###

Background

On May 29, 2012, Florida’s Democratic U.S. Representatives wrote a letter to Governor Scott urging him to suspend immediately his  purge of up to 180,000 voters from the rolls.

On Tuesday, August 8, 2012, Congresswoman Wilson, Bishop Victor T. Curry, the Rev. Al Sharpton and the National Action Network held a Voter Engagement Tour luncheon for ministers, elected officials and community leaders at New Birth Baptist Church Cathedral of Faith International in Miami to educate people on their Constitutional right to vote and how to ensure that they are not disenfranchised.
 

###

U.S. Rep. Frederica S. Wilson is a first-term Congresswoman from Florida representing parts of Northern Miami-Dade and Southeast Broward counties. A former state legislator and school principal, she is the founder of the 5000 Role Models for Excellence Project, a mentoring program for young males at risk of dropping out of school.
PRESS RELEASE from ACLU of Florida
August 17, 2012
ACLU of Florida Statement on Early Voting Preclearance Decision
Federal court in DC declines to grant Voting Rights Act preclearance to Early Voting reductions that were part of 2011 ‘Voter Suppression Act’

MIAMI–Last night a federal court in Washington, DC issued a decision on preclearance for portions of the 2011 ‘Voter Suppression Act,’ declining to grant preclearance to the law’s reduction in early voting under Section 5 of the Voting Rights Act. The American Civil Liberties Union (ACLU) Foundation of Florida represented defendant-intervenors including two Supervisors of Elections, state legislators, and other voting and civil rights groups in the case.

The following statement on the court’s decision may be attributed to Howard Simon, Executive Director of the ACLU of Florida:

“We are pleased that the court declined to grant preclearance to the Voter Suppression Act of 2011’s cutback in early voting in the counties covered by the Voting Rights Act. This is precisely why the Voting Rights Act exists, to provide a check on states that attempt to interfere with the right of minority voters to participate in our democracy.

“The burden was on the state to prove otherwise and this decision means that they failed to do so in terms of early voting. Can anyone be surprised? 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.

”This is not the end of the voter suppression saga in Florida. Because the Voter Suppression Act of 2011 was implemented in the state’s other 62 counties without waiting for preclearance, we now have two sets of election laws in effect in Florida.”

“This dual election system is illegal and will lead to confusion and chaos in November. We are arguing as much in a separate ongoing legal challenge. It is our hope that that case is resolved quickly in order to prevent a new ‘Florida 2000’ mess of Governor Scott’s and the legislature’s creation.”

# # #

PRESS RELEASE from Project Vote
August 17, 2012
 Early Voting Days are Good for Democracy

Yesterday, the U.S. District Court for the District of Columbia ruled that Florida failed to prove that its reduction in early voting days would not negatively impact minority voters.  As a result, Florida must reinstate the early voting days in five Florida counties covered by federal voting laws. The counties — Collier, Hardee, Hendry, Hillsborough and Monroe — are covered by Section 5 of the Voting Rights Act of 1965.

Project Vote’s Executive Director Michael Slater issued this statement about the ruling:

“Project Vote applauds the court’s decision to deny preclearance of Florida’s early voting changes. This law, like many others in Florida and across the nation, is part of a coordinated and undemocratic effort by some politicians to erect barriers to the ballot box.

“We call on Florida to immediately reinstate the four early voting days that were eliminated by the 2011 law.

“As was well documented by expert testimony, African-American voters are more likely to take advantage of the opportunity to vote before Election Day. The Court rightly ruled that Florida’s restrictions would negatively impact such voters, especially by eliminating voting on the Sunday before Election Day, when African-American congregations at churches traditionally go to vote after services to vote. This kind of communal commitment to voting is vital to our great democracy, and we are pleased the Court removed the barrier to this tradition.

“This decision will allow voters to continue to cast ballots in advance of Election Day, thereby encouraging greater participation and reducing long lines.   

“Finally, this ruling exemplifies why the Voting Rights Act was created. It provides a check on states that attempt to interfere with the right of minority voters to participate in our democracy.”
PRESS RELEASE from People for the American Way
August 17, 2012
African American Pastors Praise Court’s Upholding of Voting Rights in Florida

Jacksonville, Fla. – The African American Ministers Leadership Council (AAMLC), a national coalition of African American clergy, today praised a federal court’s decision to strike down Florida early voting restrictions in five counties that would disproportionately affect African American voters.

“Sadly, the voter suppression tactics that the Voting Rights Act was meant to combat are alive and well in Florida,” said Elder Lee Harris of Mount Olive Primitive Baptist Church in Jacksonville. “But thanks to the Voting Rights Act, those trying to suppress the African American vote in Florida aren’t going to get away with it. The court was right to apply the act to what was a blatant attempt to keep African Americans from the polls.”

A three-judge panel of the U.S. District Court for the District of Columbia ruled that the Florida legislature’s decision to cut early voting from 12 days to eight, for as little as six hours a day (potentially all during the standard workday), violated section 5 of the Voting Rights Act, which requires federal review of voting rights changes in states and counties with a history of voter discrimination. The court’s decision applies just to the five counties covered under section 5 --Collier, Hardee, Hendry, Hillsborough and Monroe. The panel said it would approve a plan where the five counties held early voting open for 12 hours a day for each of the 8 days.

“Thanks to this sound decision, which we urge Gov. Scott to accept, Black voters in five counties will reclaim access to the ballot box during these critical early voting days,” continued Elder Harris. “However, residents of counties not covered by section 5 of the Voting Rights Act – including Duval County – continue to face these suppressive new rules. We urge officials in all of Florida’s counties to adopt the same early voting opportunities as approved by the court.”

The African American Ministers Leadership Council, a program of People For the American Way Foundation, founded in 1997, has been working nationwide to help bring African Americans to the polls in every election, most recently through the newly-launched non-partisan “I Am A VESSEL and I Vote!” program.

###

PRESS RELEASE from Florida Department of State Ken Detzner
For Immediate Release
September 13, 2012

Contact:
Chris Cate

DOJ Approves Florida’s New Flexible Early Voting Schedule, Ensures all 80 Sections from 2011 Elections Bill are Federally Approved

TALLAHASSEE – The U.S. Department of Justice (DOJ) approved Florida’s new early voting statute without condition late yesterday, allowing the state’s five preclearance counties to offer early voting hours under the new law. Additionally, DOJ approved the five preclearance counties’ early voting schedule for the 2012 General Election. The federal approval of the early voting changes completes the federal approval process for all 80 sections of the 2011 elections bill. Every section can now be implemented statewide in future elections.

“The approval of these changes is a tremendous victory for Florida voters,” said Secretary of State Ken Detzner. “In the areas of the state already able to implement the changes, we have seen how the changes offer more flexibility to vote, more accountability and faster reporting times on Election Day.”

In June 2011, the Department of State (DOS) submitted House Bill 1355 for preclearance on behalf of Florida’s five covered counties (Collier, Hardee, Hendry, Hillsborough, and Monroe). The submission consisted of 80 sections and was initially sent to the United States Department of Justice for administrative preclearance.  DOS later sent four provisions of the preclearance package to the federal district court for a judicial review. Since that time, the Department of Justice and the federal court have approved all 80 sections as non-discriminatory.

from Congresswoman Corrine Brown (FL-3)
Monday, September 19, 2012

Update on Early Voting Litigation

Following a hearing in federal court this morning over her request that the court court require additional early voting days and hours throughout Florida, Congresswoman Corrine Brown issued the following statement:
 
“I felt this case was in good hands with Judge Corrigan this morning. I have no idea how he will rule, but his questions showed that he was very well prepared and would be fair to all sides. The judge asked if we would be willing to accept a guarantee of 96 hours of early voting statewide and I am open to that idea. Unfortunately, the Secretary of State essentially refused to tell the judge whether they would consider a settlement.
 
“I brought this case to help all Floridians recover the opportunity to vote early that they enjoyed for the last eight years. I still have not heard any legitimate reason for making voting more inconvenient. Our own Supervisor of Elections in Duval County, Jerry Holland, a Republican, testified that early voting does not lead to fraud and shortening early voting will not save any money. Election officials recognize that cutting hours will increase the lines.
 
“In fact, more than half the counties in Florida, including Duval, will offer 96 hours over eight days – the maximum under the law -- because they understand the value for all voters. Several counties in my district may only offer the minimum of six hours per day. I believe voters will be confused by conflicting rules in neighboring jurisdictions.
 
“As you know, early voting has become especially valuable to African Americans. In 2008, 54% of African American voters in Florida used early voting -- twice the rate of white voters. In Duval County 58% of African Americans voted early in 2008. In last year’s local elections, African Americans cast roughly 34% of the early votes, even though they are less than 30% of the population. We should be making it easier to vote and there’s no reason for these changes, except voter suppression.”
 
Judge Corrigan advised the parties that he would issue a ruling as soon as possible.

###

PRESS RELEASE from Florida Department of State Ken Detzner
For Immediate Release
September 24, 2012

Contact:
Chris Cate

Statement by Secretary of State Ken Detzner Regarding the Federal Court Decision Approving Florida’s Early Voting Schedule
Judge rules in favor of Department of State in Brown v. Detzner

"We are very pleased to have yet another court give its full approval of Florida’s new early voting schedule. We have always believed that the new hours will favor Florida voters, and we are confident voters will approve of the new hours as well once they experience the benefits of the new schedule. Florida’s new early voting hours offer more flexibility to vote before and after work, more weekend voting hours and guarantee a day of Sunday voting."

PRESS RELEASE from Congresswoman Corrine Brown (FL-3)
Monday, September 24, 2012

Congresswoman Corrine Brown Disappointed by Court Decision on Early Voting

“I am disappointed by today’s court decision, which denies my request that the court order the state of Florida to expand early voting beyond current law.  I had really hoped that the judge would allow counties to restore voting on the Sunday immediately before election day, but at least we will have one Sunday of early voting guaranteed.  Under the new law all counties must offer voting every day from October 27 through November 3, and polls must be open at least six hours on each day.
 
Clearly, the Florida Republican Party will continue to do everything possible to deny people the right to vote and make it as difficult as possible for Florida residents to get to the voting booth.  However, I do not intend to allow this to happen; in fact, on Tuesday morning, from 11:00 AM – 1:00 PM, at the Duval County Supervisor of Elections Office, I am holding a voter registration program for Duval County residents. I will also be holding a larger event on Sunday, September 30th, with Reverend Al Sharpton, and Members of the Congressional Black Caucus.
 
I think it is evident that early voting has worked extremely well for African American voters.  In fact, more than any other racial or ethnic group, African Americans have come to rely on early voting, and I am sure they will do so again this year. I will work to do everything I can to ensure that the system works smoothly for all voters.
 
I am very encouraged that most large counties, including Duval and Orange, will have 96 hours of early voting and I call on all county supervisors to implement 12 hours of voting on all eight days allowed under the new law. There is simply no reason not to do that if we are serious about wanting people to participate in democracy. Certainly, we should be making it easier for our citizens to vote, not harder.”