The latest lawsuit defending the right to vote in Florida provides insight into how radical the Scott administration’s assault on voting rights is and how determined the governor is to ignore law and precedent in order to manipulate the election process.
On June 29, an administrative petition was filed by the American Civil liberties Union of Florida, the National Council of La Raza, and state Sen. Arthenia Joyner challenging the state policy that has created an illegal dual system of elections.
Five Florida counties (Hendry, Hardee, Collier, Monroe and Hillsborough) operate under rules that were the law prior to 2011. These counties are “covered jurisdictions” under the Voting Rights Act. Consequently, any change in voting law or procedure must be approved (“pre-cleared”) by the U.S. Department of Justice or the federal court in Washington before it can be implemented. The remaining 62 Florida counties are operating under rules that were enacted by the Legislature in 2011.
The number of early-voting days and the ability to update your address on Election Day and use a regular, not a provisional, ballot now varies from county to county. (Restrictions on volunteer voter registration programs, enacted at the same time, were enjoined by the federal court.) These are not mere changes to address “potential fraud” or enhance the efficiency of elections. They were intended to make it more difficult for minority and elderly voters, working people and students to vote and have their vote counted.
There are now different election laws and procedures on either end of the bridge across Tampa Bay; different rules for Naples and neighboring Bonita Springs; different rules for Miami and the Florida Keys. Sen. Joyner’s district spans three counties that operate under two different voting laws.
This is a recipe for chaos and confusion. What is Gov. Scott thinking? Has he forgotten Florida’s embarrassing performance in the 2000 Election?
Conducting an election with rules that vary from county to county also violates Florida law requiring the secretary of state as chief election officer to “maintain uniformity in the interpretation and implementation of the election laws.”
The secretary, an appointee of the governor, is ignoring established interpretations of election law. In 1998, facing an almost identical situation of a new election law and a required Voting Rights Act review, the secretary of state followed a Division of Elections Advisory Opinion that election law changes not be implemented anywhere until the law received approval.
The DOE determined that all 67 Florida counties must enforce the existing election code and not implement changes that had yet to be federally approved: “To do otherwise . . . has the potential to cause widespread voter confusion, affect the integrity of the election process, impair uniform application of the election laws and could violate federal and state law.”
Again, in 2007, the then-secretary of state followed the DOE opinion prohibiting a dual system of voting during a Voting Rights Act review of a new law. The division advised rather emphatically that changes in law relating to voter registration “cannot be implemented in any county until DOJ pre-clears them.”
Even the Florida Legislature was not as radical in its adoption of the 2011 voter suppression measures as the Scott administration has been in implementing the measures.
After passage of the new 2011 voting law, the Senate Subcommittee on Ethics and Elections acknowledged the long-standing interpretation of the uniformity statute prohibiting a dual system of elections. “Historically . . . laws (affecting election administration, practices or procedures) have not taken effect in any county until after preclearance or approval, since election laws must be implemented uniformly throughout the state.”
Nevertheless, the Scott administration, setting aside law and precedent, has implemented two different sets of election laws.
The eyes of the world will be on Florida this November. We are a key swing state.
Once again, we may determine who will be president. If the courts don’t soon resolve the lawsuits over the election law and the rights of voters, confusion, disarray and disfranchisement may once again be on display.
Howard Simon is executive director of the ACLU of Florida.