US Senate Testimony on “Protecting the Right to Vote in the Sunshine State”

Here’s a copy of my written testimony with Prof. Michael Herron, which I presented on January 27, 2012 in Tampa, Florida, before the United States Senate Committee on the Judiciary, Subcommittee on the Constitution, Civil Rights and Human Rights, “New State Voting Laws II: Protecting the Right to Vote in the Sunshine State.”

Here are the slides I projected during my 7 minute oral testimony.

And here’s the link to the key plot showing by day the racial/ethnic early in-person voting in Florida in the 2008 General Election.

If you’re interested in discussing our testimony, please contact me at “president<at>electionsmith[dot]com“

Honored to be testifying before US Senate Judiciary SubCmte in Tampa tomorrow

“New State Voting Laws II: Protecting the Right to Vote in the Sunshine State”

Senate Judiciary Committee
Subcommittee on the Constitution, Civil Rights and Human Rights

DATE: January 27, 2012
TIME: 01:00 PM
ROOM: Hillsborough County Courthouse

OFFICIAL HEARING NOTICE / WITNESS LIST:

January 12, 2012
NOTICE OF SUBCOMMITTEE FIELD HEARING

The Senate Committee on the Judiciary has scheduled a field hearing of the Subcommittee on the Constitution, Civil Rights and Human Rights entitled “New State Voting Laws II: Protecting the Right to Vote in the Sunshine State” for Friday, January 27, 2012 at 1:00 p.m. at the Hillsborough County Courthouse, 800 E. Twiggs Street, Tampa, FL 33602.

Chairman Durbin to preside.

By order of the Chairman.

Witness List

Hearing before the
Senate Committee on the Judiciary
Subcommittee on the Constitution, Civil Rights and Human Rights

On

“New State Voting Laws II: Protecting the Right to Vote in the Sunshine State”
Friday, January 27, 2012
Hillsborough County Courthouse
800 E. Twiggs Street, Tampa, FL 33602
1:00 p.m.

Panel I

Michael Ertel
Supervisor of Elections, Seminole County
Sanford, FL

Ann McFall
Supervisor of Elections, Volusia County
DeLand, FL

Hon. Bruce Smathers
Former Secretary of State of Florida
Jacksonville, FL

Panel II

Daryl Parks
President
National Bar Association
Tallahassee, FL

Sara Pemberton
President
Florida College System Student Government Association
Clearwater, FL

Dr. Daniel A. Smith
Professor of Political Science
University of Florida
Gainesville, FL

Brent A. Wilkes
National Executive Director
League of United Latin American Citizens
Washington, DC

Here’s a link to the official announcement

 

Did Voters in Corrine Brown & Mario Diaz-Balart’s Majority-Minority CDs Oppose Fair Districts?

Nope.

Despite their continued, self-serving opposition to the 2010 Fair Districts Florida ballot measure, Amendment 6, a majority of voters in both Congresswoman Corrine Brown’s African-American majority-minority district, CD3, and Mario Diaz-Balart’s majority-minority Hispanic district, CD21, supported congressional redistricting reform, with 57% and 62% approval, respectively.

More on the lawsuit, which Brown and Diaz-Balart have appealed to the 11th Circuit Court of Appeals, can be found here.

Florida’s Early Voting Period is Reduced from 96 to 48 Hours under HB1355

According to a story in USA Today, Chris Cate, the director of communications for the Florida Department of State, continues to misinform the public about the total hours of early in-person (EIP) voting hours that are required under HB1355.  He claims that although the number of days has been shortened, the number of EIP voting hours  remains the same, and says that there is no systematic attempt to suppress any group of voters.

Yet, as Politifact has documented, that claim regarding the total number of EIP voting hours under HB1355 is “Mostly False.”

In fact, the total number of early in-person voting hours that county Supervisors of Elections must remain open under HB1355 has been cut in half.

In addition to putting restrictions on voter registration drives, the casting of provisional ballots, and several other voting and elections issues, HB1355 shortened the window of EIP voting from 15 to eight days. Under the new law, county Supervisors of Elections have the discretion to offer between six and 12 hours of early voting each day—amounting to a minimum of 48 hours and a maximum of 96 hours.

Early voting under HB1355 is to commence on a Saturday, 10 days prior to Election Day, and must end on a Saturday, three days prior to Election Day. Most notably, HB1355 prohibits county election supervisors from offering EIP on the Sunday immediately before the election. In the 2008 general election, 10 Supervisors of Elections—including some of the state’s most populated and racially and ethnically diverse counties—offered EIP on the Sunday immediately prior to Election Day.

In short, HB1355 has reduced the number of EIP voting days, has cut in half the required number of EIP voting hours, and has eliminated EIP voting on the final Sunday before Election Day.

Florida Redistricting and Majority-Minority Retrogression

Florida state senator, Andy Gardiner, might want to bone up on his constitutional law.

The Republican Leader from Orlando was quoted in the Miami Herald that, “If a particular district is at a percentage, I think it’s very important, across the minority district, that it stays within that percentage.”

Of course, Gardiner’s redistricting rationale, which is predicated on “packing” racial and ethnic minorities into so-called “majority-minority” districts, is exactly what a super-majority of Florida citizens, who approved Amendments 5 & 6 in 2010, want to eliminate.

Lowering the percentage of racial and ethnic minorities in legislative districts (both state and federal) is perfectly legal and does not necessarily violate Section 5 of the Voting Rights Act–even the 2006 Voting Rights Act Reauthorization Amendments–which requires the preclearance of voting and election rules in five Florida counties.  The reason is straight-forward: Minorities across the state do not necessarily have a lesser chance of electing minority representatives when the proportion of minorities living in a district is lowered.

In 2003, the Supreme Court of the United States ruled 5-4 in  Georgia v. Ashcroft that shifting African American voters from completely safe majority-minority districts to “coalitional” or “influence” districts, in which blacks did not constitute a majority of voters in a district, was not necessarily “retrogressive.”  That is, the conservative majority ruled that the new federal and state senate legislative districts created by the Georgia state legislature did not violate Section 5 of the Voting Rights Act, which prohibits eroding “the position of racial minorities with respect to their effective exercise of the electoral franchise,” in select counties and states, mostly in the South.

Although not all African American and Hispanic elected officials in Florida support “unpacking” majority-minority districts so as to make them less concentrated, which in turn, dilutes the surrounding districts that have higher concentrations of whites, many do.  As the Miami Herald reports, state senator Arthenia Joyner, a black Democrat from Tampa who “was elected to Senate District 18 with a black voting age population of only 39 percent,” responded to Sen. Gardiner’s faux legal analysis: “I don’t need a district with 60 percent black registration to win.”

Senator Gardiner might want to read the court’s opinion in Georgia v. Ashcroft, specifically page 16 of the majority opinion.

The ability of minority voters to elect a candidate of their choice is important but often complex in practice to determine. In order to maximize the electoral success of a minority group, a State may choose to create a certain number of “safe” districts, in which it is highly likely that minority voters will be able to elect the candidate of their choice.  Alternatively, a State may choose to create a greater number of districts in which it is likely–although perhaps not quite as likely as under the benchmark plan–that minority voters will be able to elect candidates of their choice.

The Court continues: “Section 5 does not dictate that a State must pick one of these methods of redistricting over another.”

Florida’s Constitution, however, does. It states, in part

No apportionment plan or district shall be drawn with the intent to favor or disfavor a political party or an incumbent; and districts shall not be drawn with the intent or result of denying or abridging the equal opportunity of racial or language minorities to participate in the political process or to diminish their ability to elect representatives of their choice.

Rather than continuing to pack minorities into lopsided, majority-minority districts, which diminish their voting rights, the Florida legislature should abide by Amendments 5 & 6 and create “coalitional” or “influence” districts across the state that enhance the rights of minorities “to participate in the political process” or “elect representatives of their choice.”

It’s time, Senator Gardiner, for the Florida legislature to listen to the citizens of the Sunshine State, follow the Florida Constitution, and create Fair Districts, rather than ones that excessively pack minorities into overly safe districts.

Will Florida’s Dual Election System Breathe Life into Bush v. Gore?

Last week, the U.S. District Court in Washington, DC, denied a complaint by Florida Secretary of State Kurt Browning  challenging sections of the Voting Rights Act.  The Florida Secretary of State was seeking an expedited hearing on whether HB1355, Florida’s controversial legislation overhauling voting rights and election administration in the state, complied with Section 5 of the Voting Rights Act, which requires federal preclearance for five Florida counties (Collier, Hardee, Hendry, Hillsborough, and Monroe).  Secretary of State Browning is requesting that the federal district court approve portions of the new law–specifically third party voter registration, out-of-­county address changes, petition signature verification, and early voting–rather than waiting for US Department of Justice’s preclearance.

Although on hold for the five counties awaiting US Justice Department preclearance, the Florida Division of Elections has been working with the Supervisors of Elections in the remaining 62 counties not covered by Section 5 of the VRA to implement the many new provisions under HB1355 (Chapter 2011-40) in anticipation of the January 31 Presidential Preference Primary.

However, under Florida law, the state must provide uniform standards for the proper and equitable implementation of the voter registration laws. It is the responsibility of the Florida Secretary of State, as unambiguously stated on the Florida Division of Elections website, “to ensure statewide uniformity in the interpretation of the election laws.”

But the uneven implementation of HB1355 continues, unabated.

Clearly, Florida’s dual election system is not treating all Floridians the same.  As the Brennan Center noted back in June:

• The new voter registration regulations would be in force in some counties but not others, unfairly and unlawfully creating two separate sets of rules governing voter registration in different parts of the state.
• Some counties would unfairly be left with a dramatically shorter early voting period than others, as the new law cuts the opportunity for early voting to fourteen days to eight
• Floridians who moved recently would have varying difficulty voting depending on their new county of residence, as implementation of the new law would end Florida’s longstanding policy of allowing citizens who have recently moved to easily change their registration address on Election Day and vote normally at their poll site.
  

In denying the state’s request for an expedited hearing and decision, the federal district court’s decision to wait until May to hear oral arguments has virtually assured that the January 31 PPP will be conducted with two sets of election laws, which directly conflicts with existing Florida statutes. But of course, the blame doesn’t lie at the feet of the federal district court. It lies at the feet of the Republican-controlled legislature and the Office of the Secretary of State, who has a constituency of one: Governor Scott.

Again, the Brennan Center in a letter to Secretary Browning on behalf of several voting rights advocacy groups, nails it:

Under Florida statute § 97.012 and prior advisory opinions by the Division, the Secretary of State has a duty to ensure uniformity in the application, operation, and interpretation of the state’s election laws. Applying HB 1355’s extensive changes to the voting and voter registration process only in certain counties, but not in the five counties for which preclearance is required under the federal Voting Rights Act before implementing voting changes, clearly conflicts with this legal mandate.

We therefore request that you immediately advise all Supervisors of Elections that the provisions of H.B. 1355 are unenforceable until they can be applied uniformly in all Florida counties, as state law requires.

Of course, uneven implementation of voting and election laws also violates federal law.  In 2002, Congress passed and President Bush signed into law the Help America Vote Act of 2002 (HAVA). HAVA was Congress’s effort to clean up the mess in Florida resulting from the 2000 presidential recount.  In order for Florida and other states to receive the billions of dollars appropriated to improve the electoral process, state elections officials were required to implement numerous reforms mandated under HAVA.

Among its many provisions, HAVA requires that the states  “implement in a uniform and nondiscriminatory manner, a single, uniform, centralized, interactive computerized statewide voter registration list defined, maintained, and administered at the state level.” By most all accounts, Florida achieved by the January 1, 2006 federal deadline, with the Florida Voter Registration System (FVRS).  The implementation of HB1355 in 62 counties, but not the other 5, is clearly in violation of HAVA.

Bush v. Gore may be dead (or at least dormant), but Florida’s Dual Election System may breathe some new life into it.

Florida Early Voting

Professor Michael Herron (Dartmouth) and I look forward to sharing our findings on early voting in Florida in the 2008 election at the 2012 State Politics and Policy Conference to be held in Houston, TX on February 16-18, when we present our paper, “The Participatory Impact of Truncating Early Voting in Florida.” It’s pretty timely, given all the attention that Florida US Senators Bill Nelson and Marco Rubio have given to early voting and HB1355.

Here’s our Abstract (tentative):

Over the past two decades, an increasing number of American states have made it more convenient for potential voters to cast early ballots.  Starting with Texas’ adoption of in-person early voting in 1988, 32 states now provide an extended time period prior to Election Day for voters to go to the polls.  Despite the diffusion of and praise by voting rights advocates for early voting, in 2011 the Florida legislature enacted House Bill 1355, which truncated the state’s early voting period from a total of 14 days to eight days and completely eliminated  early voting on the Sunday immediately preceding Election Day.  Critics of the legislation contend the surreptitious goal of the Republican-controlled legislature was to depress African American early voting turnout in 2012.

In this paper, we draw on an original dataset to gauge the potential participatory ramifications of HB 1355 by examining patterns of early voting in the 2008 general election.  By merging the state’s 2008 voter file, comprised of more than 11.3 million registered voters, with the state’s November 2008 early voter file, we are able to assess and study the race and ethnicity, party registration, age, gender, precinct/county registration, and vote history of each registered voter, including those who cast an early ballot, in 2008.

Unlike many studies of early voting in the American states which rely on aggregate-level data, we are able to pinpoint not only which voters were more likely to cast early ballots—specifically their socio-demographic characteristics—but we can also describe on which day during the two-week period in 2008 that they voted.  We employ a variety of multivariate models to test the conventional wisdom that African American voters are more likely than whites to vote early, and vote on Sunday, and that older and partisan voters vote early more often (Stein 1998). In addition, using a voter’s vote history to model early voting, we challenge the growing scholarly consensus—which is based largely on survey data—that early voting merely retains engaged voters (Stein 1998; Neely and Richardson 2001; Berinsky 2005; Kousser and Mullen 2007; Burden, et al. 2011; Gronke, Galanes-Rosenbaum, and Miller 2008) rather than stimulating peripheral voters.

Will Florida Election Law #HB1355 Increase Absentee Ballot Voter Fraud?

I’ve been writing a lot over the past five months about House Bill 1355, dubbed by many as Florida’s ignominious voter suppression law. HB1355  is being challenge in federal court, and the US Justice Department has yet to grant preclearance of portions of the law which cover five Florida counties covered by Section 5 of the Voting Rights Act.  Defending the law, the Florida Secretary of State is suing in Federal Court to not only uphold all sections of the law, but to strike down Section 5 of the Voting Rights Act.

Most of the attention that I and others have given to HB1355 has focused on three areas that the GOP-controlled legislature cracked down on in order to make it more difficult for citizens of Florida to register to vote and cast a ballot, namely:

1) Reducing the number of days for early voting from 14 days to eight days, and altogether eliminating early voting on the Sunday before the Tuesday election.

2) Requiring third-party voter registration organizations to submit voter registration applications within 48 hours of receipt instead of ten days as provided by existing law, and imposing a fine of $50 for each failure to comply with the deadline, and imposing fines up to $1,000 for failing to comply with other provisions.

3) Disallowing voters who move from one Florida county to another to make an address change at the polls on the day of an election and vote a regular ballot, except for active military voters and their family members.

(Less attention has been given to the portion of the law that reduces the shelf-life of citizen initiative petition signatures proposing constitutional amendments from four years to two years.)

Virtually no attention has been given to HB1355′s impact on absentee voting in Florida. The reason is fairly simple: the law has actually made it easier for citizens to cast an absentee ballot, and actually, increases the likelihood of voter fraud.

Absentee ballot fraud is not limited to Miami mayoral races. Just yesterday, several people in Madison County, including a candidate for school board, were arrested and charged with obtaining absentee ballots for other people without the voters’ knowledge or consent.  The candidate and her accomplices then provided an alternate address for the ballots to be mailed by the Supervisor of Elections, and allegedly then retrieved the ballots from the third party locations, brought the ballots to the voter, sometimes with the ballots already filled out, and then had the voter sign the absentee ballot signature envelope.

Tragically, HB1355 eliminates the provision that existed in 2010 when the fraud occurred, making future absentee ballot fraud more difficult to prosecute. Prior to the election code being changed by the Republican legislature in 2011, Supervisors of Elections were required to send absentee ballot to a voter’s registered address, unless the voter was absent from the county, hospitalized, or temporarily unable to occupy their residence.

But these provisions to reduce the possibility of absentee voter fraud were stricken by HB1355.  Instead of being required (with the forgoing exceptions) to send an absentee ballot “By nonforwardable, return-if-undeliverable mail to the elector’s current mailing address on file with the supervisor,” supervisors now may be asked by anyone (even over the phone) to mail an absentee ballot “to any other address the elector specifies in the request.”

HB1355 is an embarrassment, plain and simple. The Republican-controlled legislature’s intention was not to reduce voter fraud, of which there is virtually none when it comes to voter registration and early voting.  The reason lawmakers turned a blind eye to absentee ballots in the state–where there is clear evidence of voter fraud–is because registered Republicans are much more likely to use this form of convenience voting than their Democratic counterparts.  In 2008, Republicans had a 10.8% lead over Democrats voting absentee ballots by Election Day.

Partisan politics in Florida have reached a new low.

Why the Republican-controlled Florida Legislature Limited Voter Registration

I’ve written a considerable amount about the negative impact HB1355 likely will have on early voting in Florida. But the regressive law also affects the ability of Florida citizens to register to vote.

The Republican-controlled legislature’s rationale for the law–steeped in the anti-democratic rhetoric of making voting a privilege, not a right–continues to conjur up vestiges of Jim Crowism. “We’re going to have a very tight election here next year, and we need to protect the integrity of the election,” said Rep. Dennis Baxley, a Republican from Ocala. “When we looked around, we saw a need for some tightening.”

With respect to the severe restrictions placed on “third parties” (including individual citizens) interested in helping fellow citizens to register to vote, Republican lawmakers are surely cognizant of the surge of African Americans who registered to vote in Florida prior to the 2008 general election.

As I write with my co-author, Stephanie Slade (who works for The Winston Group, a Republican pollster based in DC) in a recent article on the 2008 election in Florida, “Obama to Blame? African American Surge Voters and the Ban on Same-Sex Marriage in Florida,”

Between December of 2007 and October of 2008, an additional 233,130 black Floridians registered to vote, a group of citizens we have referred to as the Obama-inspired African American surge. If these voters turned out at the same rate as the Florida electorate as a whole in the 2008 presidential election (74.6 percent), black surge voters would have constituted 173,915 of 8.39 million total votes cast for all the presidential candidates.

The numbers speak for themselves.

This spring, Republican lawmakers changed the rules to try to ensure that there will be no African American “surge voters” in 2012.

It will be up to the US Justice Department, as well as several interveners (including the ACLU, NAACP, and the League of Women Voters)–but ultimately the federal courts–to determine whether they ultimately succeed in their effort to suppress the vote in Florida.

Questionable Claims Regarding Early Voting by FL Secretary State in Amended VRA Complaint

In its amended complaint to receive declaratory judgment from a federal court that all sections of HB 1355 are entitled to preclearance under Section 5 of the 1965 Voting Rights Act, the Florida Secretary of State plays fast and loose with the facts.

With respect to the shrinking of the days permissible to vote early in Florida, the complaint states (on page 19) that:

The changes to the early voting statute contained in Section 39 were adopted to expand access to early voting and provide each supervisor of elections additional flexibility regarding the scheduling of early voting. The changes to the early voting statute contained in Section 39 were not adopted with the purpose of denying or abridging the right to vote on account of race, color, or membership in a language minority.

Both the motive behind the statute, HB 1355, as well as the empirical evidence regarding race and early voting in Florida, are quite clear, and do not jibe with the claims made in the Secretary of State’s complaint.

First, as I’ve noted previously, it’s well known that African Americans are more likely to vote early in Florida than whites. In the 2008 general election, 2.1 million Floridians voted early.  African Americans cast 22 percent of the early votes, even though they only comprised 13 percent of the total electorate.

The Republican-led Florida legislature was well aware of these statistics.  The early turnout of African Americans in 2008 undoubtedly inspired the effort by Republican lawmakers to compress early voting, in anticipation of the 2012 general election. Indeed, the Republican effort to suppress blacks from voting early was on full display during the floor debate on House Bill 1355 (known formally as the Committee Substitute for Committee Substitute for House Bill 1355 (CS/CS/HB 1355)).

Defending the bill, Republican Senator Mike Bennett stated on the floor of the Florida Senate (as reported by PolitiFact):

Do you read the stories about the people in Africa? The people in the desert, who literally walk two and three hundred miles so they can have the opportunity to do what we do, and we want to make it more convenient? How much more convenient do you want to make it? Do we want to go to their house? Take the polling booth with us? This is a hard-fought privilege. This is something people die for. You want to make it convenient? The guy who died to give you that right, it was not convenient. Why would we make it any easier? I want ‘em to fight for it. I want ‘em to know what it’s like. I want them to go down there, and have to walk across town to go over and vote.

Although the total number of early voting hours remains fixed at 96 hours, they’re not the same hours. Previously, voters had two weeks to cast an early vote, from a Monday to the Sunday before Election Day.  Under HB 1355, the period is eight days long, running from Saturday through Saturday, but eliminating the final Sunday before election day.

The new restriction on early voting–specifically, cutting the early voting period from 14 to 8 days and eliminating voting on the Sunday prior to the general election–unquestionably targets African Americans. Not only were African Americans more likely to cast an early ballot than whites in 2008, they were also more likely to do it on the Sunday prior to election day.

Targeting African Americans was the intent of Republican lawmakers all along, and HB 1355 clearly violates the Section 5 of the Voting Rights Act, and the same racially motivated efforts by lawmakers to suppress the vote by minorities that it intended to correct nearly half a century ago.