As was reported widely in the press, if not entirely accurately, last Thursday night a Washington, DC, panel of federal judges handed down a unanimous ruling that restrictions placed on early voting in Florida should continue not to be implemented in the five counties covered by Section 5 of the 1975 amendments to the 1965 Voting Rights Act. Florida, said the judges, “has failed to satisfy its burden of proving that those changes will not have a retrogressive effect on minority voters.” With respect to early voting, House Bill 1355–which was passed on party line votes by the Florida legislature and signed into law by Republican Governor Rick Scott in May 2011–is likely to have a differential impact it is likely to have on racial and ethnic minority voters in the 2012 general election. In addition to my testimony before the US Senate on the topic, I’ve co-authored with Professor Michael Herron of Dartmouth College a soon-to-be published article in Election Law Journal that reveals the heavy reliance of early voting by minorities in the 2008 general election. We found that in the 10 Florida counties that offered voting on the final Sunday of early voting in 2008, there was a surge in turnout among minority voters, especially African Americans. That final Sunday of voting was eliminated under HB1355. Since then, Florida voters have participated in two statewide primary elections in 2012 under a dual system of elections, which very well may violate state law.
Because the Secretary of State decided to enforce HB 1355 in 62 of the state’s 67 counties, despite the fact that the US Justice Department refused to preclear the enforcement of HB 1355 for Florida’s five Florida counties (Collier, Hardee, Hendry, Hillsborough, and Monroe) covered by Section 5 of the VRA, those five counties continued to offer two weeks of early voting, (Monday through Saturday, and again, Monday through Saturday) for a total of 96 hours. (Incidentally, both prior to and after the enforcement of HB 1355, the Supervisor of Election in each of the five Section 5 counties opted not to offer voting on either of the two Sundays, instead allotting the required eight-hours of weekend early voting all on the two Saturdays).
In contrast, the state’s other 62 counties were required by HB 1355 to cut back on the total number of days of early voting (from a maximum of 14 days, Monday through Sunday, and again, Monday through the final Sunday before the election (which 10 counties allowed in 2008); to a maximum of eight days, Saturday through Saturday). Under the new early voting restrictions contained in HB 1355, which apparently eluded both Governor Scott as well the Chairman of the Republican Party of Florida, Supervisors of Elections and could offer as few as 48 total hours (but no more than 96 hours over the truncated period).