Ward Connerly, Affirmative-Action Foe, Facing Allegations of Financial Misdeeds

Well, it looks like the Ballot Initiative Strategy Center’s hard-hitting TV issue ads that ran in Colorado in 2008, calling out Ward Connerly for his deceptive effort to ban Affirmative Action, were spot-on.

New York Times has the latest in the alleged con-job he’s been running.

Here’s an excerpt from my 2005 Election Law Journal article with Elizabeth Garrett on “Veiled Political Actors” in ballot issue campaigns, which highlighted some of Connerly’s deceptive practices, which turned out to be just the tip of the iceberg :

Using 501(c)s to shield the identities of entities active in direct democracy is likely only to increase. The American Civil Rights Coalition
(ACRC) was established by Ward Connerly in 1997 following the passage of California’s Proposition 209, the successful 1996 anti-affirmative action initiative. The ACRC was the sponsor of Proposition 54, a racial privacy initiative that attempted to prohibit state and local governments from collecting data on or using classifications based on race, ethnicity, color, or national origin. According to campaign finance filings with the FPPC, ACRC contributed 94 percent ($1,570,400 of $1,671,958) of the total raised in 2001–02 by the ballot issue committee, Yes on Proposition 54/Racial Privacy Initiative Sponsored by American Civil Rights Coalition.112 The contributions made to ACRC were subsequently transferred to its sister ballot committee to help finance the paid signature-gathering effort to qualify the measure.113

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.

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.

RIP Derrick Bell, Critic of Direct Democracy

Derrick Bell, the first African American dean of a non-historically black school of law, and long-time professor at Harvard and NYU law schools, passed away yesterday at age 80.

In addition to pioneering “critical race theory,” Bell penned a seminal essay in 1978, on the dangers of direct democracy towards minorities.  Bell, in his Washington Law Review article, “The Referendum: Democracy’s Barrier to Racial Equality,” argued that ballot measures could perpetuate racial discrimination, increasingly so as racial barriers are simultaneously being lowered in representative democracy.  As such, the courts, Bell contended, should use heightened scrutiny assessing whether the civil rights of minorities are diminished via plebiscite.  Concerned with the populist tropes of some ballot measures, Bell warned, “Although the racial motivation is hidden, its effects are not; and the damage to minorities and to the integrity of a representative government can be as severe as that of the overtly racist laws existing in the country before 1954.”

For more empirical research on direct democracy and minority rights, see my review essay with Caroline Tolbert, as well as this article by Don Haider-Markel and his coauthors.

Voter Supression in Florida

Here’s the full text of the infamous Florida HB 1355, dubbed by voting rights activists as the voter suppression bill.