Does an amendment to new Florida election bill violate provisions of Voting Rights Act?

Here’s a copy of the SB 600 amendment letter sent to the members of the Florida Senator regarding Sen. Latvala’s effort to restrict election assistance to disabled voters, which very well may violate several provisions of the 1965 Voting Rights Act.

It’s signed by the Lawyers’ Committee for Civil Rights Under Law, American Civil Liberties Union of Florida, Common Cause Florida, Rock the Vote, and the National Congress of Black Women.

Sen. Latvala’s amendment to the pending legislation is available here.

Quite honored to have early voting research cited in Rep. John Lewis’ amicus brief in Shelby County v. Holder

Here’s a pdf of the Racial Justice Project’s amicus brief on behalf of Congressman John Lewis. My research with Prof. Michael Herron is cited on pp. 32-33, clipped below.

For the 2012 general election, only thirty-two of Florida’s sixty-seven counties, including the five counties covered by Section 5, offered the maximum ninety-six hours of early voting hours permitted under the new law. Minority voters again took advantage of the extra time to cast their votes. While African Americans made up less than 14% of Florida’s registered voters in 2012, they made up more than 22% of the early voter electorate on each day of the 2012 early voting period. Herron & Smith, at 11. However, because there was a reduction in the total number of early voting hours and days in 2012, including the elimination of the Sunday immediately before Election Day, there were fewer opportunities for minorities to vote early. In Miami-Dade and Palm Beach counties, voters stood in line to cast early votes for more than five hours during the weekend before Election Day. Id. at 20. In those two counties, African Americans made up only 16.7% of registered voters, but accounted for 43.8% of the early voters on Sunday, November 4, 2012. Id. at 21. The data tell the story. There is simply no question that without Section 5, a disproportionate number of minority voters in Florida would have been deterred from exercising their right to vote in 2012.

Some Thoughts on Differential Racial/Ethnic Rejection Rates of Absentee Ballots in Florida

My collaborator, Michael Herron at Dartmouth, and I have been crunching the numbers, drilling down into the Florida voter file to get a better sense of who is more likely to cast ballots that are later rejected by county canvassing boards.

Doing so has generated considerable publicity and even has raised the possibility of reform, with Governor Scott changing his tune on the deleterious effects of HB1355, though the cynic in me remains to be convinced…I’ll reserve judgment until May, when the legislative session wraps up.

In particular, there’s been a lot of attention focusing on our report that documents the higher rejection rate of absentee ballots cast by minority voters and how these rejection rates are not consistent across the state’s 67 counties.

Due to the long lines during the truncated eight-day early voting period and the expected long lines on Election Day, many minorities–who historically vote early in disproportionately higher rates than whites in Florida–decided instead to request and cast absentee ballots.

As we write in our report, not only did the percentage of African Americans casting absentee ballots go up in 2012, the rejection rate of absentee ballots cast by blacks was nearly twice that of absentee ballots cast by white voters.

Quite possibly due to well‐founded fears of long lines at early voting and Election Day polling sites resulting from HB 1355, absentee ballots—a much less reliable form of voting a valid ballot—increased in 2012. Over 28 percent of all ballots cast in 2012 were absentee ballots, nearly six percentage points higher than in 2008. Almost one percent of these ballots were “rejected as illegal” in 2012 by county canvassing boards, and the African American absentee ballot rejection rate was nearly twice the absentee ballot rejection rate of white voters.

This, of course, raises the question of ‘who should be blamed?’–voters or election administrators–for the significantly higher rejection rate of absentee ballots cast by African Americans.

To answer this question, I think it’s important to first establish some baselines for comparison.  The statewide rejection rate of absentee ballots cast in 2012 was 0.97%. The statewide rejection rate of absentee ballots cast by African Americans was 1.47%.  And the statewide rejection rate of absentee ballots cast by whites was 0.81%.

But there were considerable differences in rejection rates across the state’s 67 counties.

Our findings for Collier County reveal, as reported in the Naples News, that more than 6% of the absentee ballots cast by 580 African Americans in the county were ‘rejected as illegal’ by the county canvassing board, a rejection rate nearly 5x greater than that for white voters casting absentee ballots. It should be noted that Collier County is one of the five counties in Florida covered by Section 5 of the Voting Rights Act.

It’s curious, then, why the rejection rate of the absentee ballots cast by 2,522 blacks in neighboring Lee County was 0%. Or that only 1.65% of absentee ballots cast by blacks in neighboring Miami-Dade County were ‘rejected as illegal.’

For anyone who has observed county canvassing boards interpreting the validity of signatures on the back of absentee ballots, they’ll likely attest that there’s a considerable amount of discretion in determining whether the signature on an absentee ballot envelope should be accepted or rejected.

According to the Florida Statutes, “The canvassing board shall, if the supervisor has not already done so, compare the signature of the elector on the voter’s certificate with the signature of the elector in the registration books to see that the elector is duly registered in the county and to determine the legality of that absentee ballot….An absentee ballot shall be considered illegal if it does not include the signature of the elector, as shown by the registration records.”

Thus, we shouldn’t be surprised with the fairly high rate of absentee ballots that are rejected, compared to those cast in person during the early voting period or on Election Day.  As I told the Miami-Herald last year, “Absentee ballots are processed and verified using different standards than regular ballots and as such, are routinely rejected at a higher rate by county supervisors than ballots cast during the early voting period or on Election Day.”

Of course, the rejection rate for absentee ballots may be attributed to the ignorance of voters, as some neglect to sign the back of the envelope properly, or sign in a way that does not match their signature on file with the election supervisor’s office.

But then what accounts for the inter-county variation in rejection rates for African Americans?  Are blacks living in Lee County more educated, or more civic-minded and engaged, than those living just south of them in Collier County? Color me dubious….

Perhaps it’s attributable to fraud–that the absentee ballots requested for African American voters in Collier were being filled out by other individuals, thus increasing the likelihood that the signature of the imposter wouldn’t match that on the voter file. Or perhaps elderly or crippled African Americans were more likely to have help filling out their ballots than similar white voters casting absentee ballot voters.

Hmmmmm….  So, both of these possible forms of fraud seemingly only occurred in Collier County, and only among African American absentee voters, but not in other counties.  Again, it doesn’t seem very plausible to me.

What about the role of election administrators and the canvassing boards charged with determining whether an absentee ballot is valid. It’s true that there is no overt information about a voter’s race or ethnicity on the envelope containing an absentee ballot.

But that does not mean that those charged with determining the veracity of a voter’s signature are ignorant of the race/ethnicity of an absentee voter.  Not only do many given and surnames often have a racial/ethnic identity, but so too do the return addresses on absentee ballot envelopes. Given the high racial/ethnic geographic segregation in most of Florida counties, it doesn’t take much local knowledge to have a pretty good guess of the racial/ethnic identity of a voter living on a particular street or in a given neighborhood.

In no way am I suggesting that there is overt racism by local supervisors or their canvassing boards when judging whether a signature should be ‘rejected as illegal’ or not.

And I’m not willing to absolve the culpability of individual voters casting absentee ballots that are deemed to be invalid.

Still, I have yet to hear a good reason for why there’s such a gap across Florida’s 67 counties when it comes to the rejection rates of absentee ballots cast by minority voters across the state.

But such a gap does exist, and because some of these counties–such as Collier County–still fall under Section 5 of the Voting Rights Act because of past racial discrimination, it seems pretty important for the US Justice Department and state and federal policy makers to acknowledge these differences and begin to drill down, like we’re trying to do, to understand why they seem to persist.

Senate Judiciary Committee on Voting Rights

Honored to be mentioned by US Senator Bill Nelson in his testimony before the Senate Judiciary Committee in today’s hearing on Voting Rights. The research that he mentioned, which I coauthored with Michael Herron at Dartmouth College, is available here.

Exclusive Empirical Research: “House Bill 1355 and Voter Registration in Florida”

Professor Michael Herron (Dartmouth College) and I have posted a draft of our American Political Science Association annual conference paper, “House Bill 1355 and Voter Registration in Florida,” here.

Here’s the Abstract:

New state laws governing voter registration went into effect in Florida on July 1, 2011. Among the legal changes
promulgated as a consequence of a piece of Florida state legislation known as House Bill 1355 were new registration
requirements for third-party groups like the League of Women Voters and a new oath, warning of prison time and fines,
that voter registration agents had to sign before engaging in registration activities. Such changes raised the implicit
costs that eligible Florida citizens faced when registering to vote, and we show, consistent with this logic, that voter
registrations across Florida in late 2011 dropped precipitously compared to registrations in late 2007. This pattern is
evident among registrants in general, among registrants age 21 and younger, and among the number of individuals
who registered as Democrats as well as the number who registered as Republicans. Outside of House Bill 1355, we
know of no credible explanations for our findings about Florida registration drops in 2011. Our results thus show how
restrictions on the way that third-party organizations register voters can have tangible effects on actual registrations
and, given that registration prior to an election is a civic necessity in Florida, can affect electoral participation.

Still Confused about Florida’s Early Voting Law? You’re Not the Only One

I just took a quick stroll around the web to check out the headlines announcing the DC federal district court’s decision yesterday on Florida’s 2011 early voting law.

Every one of the following headlines, except one, is misleading.

 

Federal court rejects Florida early voting changes

Rick Scott Strikes Out Again: Federal Court Blocks Florida Attack On Early Voting

Federal court says early voting cutback could hurt blacks

Federal Court Reinstates Early Voting Days In Parts Of Florida

Florida judge dumps early voting limits in some counties

Black Vote: Federal Court Reinstates 4 Early Voting Days in 5 Florida Counties

 

Not sure which one? Check out yesterday’s post where I try to explain Florida’s early voting law, before and after the passage of HB 1355.

 

Updated: Still lots of confusion in media over early voting in Florida

Let me make this very clear:

Prior to the passage of HB 1355 in May 2011, early voting in FL started the 15th day before an election and ended the 2nd day before the election. So, the open period of early voting started on a Monday and ended two Sundays later.

The old law required the state’s 67 Supervisors of Elections to offer a total 96 hours of early voting over the 14-day period, and the SOEs were required to offer early voting for exactly 8 hours per day on weekdays and exactly 8 hours in the aggregate each weekend.  The SOEs had the discretion of spreading the 8 hours of weekend early voting on Saturday or Sunday, or limiting it to a single weekend day.

In the past, the SOEs in five counties in Florida covered by the Voting Rights Act decided not to offer early voting on Sundays, resulting in their 96 hours of early voting fall on just 12 days, as the DC court makes clear in its decision handed down yesterday.  But in the November 2008 election, for example, 10 SOEs offered voting on each of the 14 days, including the final Sunday before the election. Much more on that, here, here, and here.

HB 1355 shrinks the number of total days of EV to 8, and allows SOEs to reduce the total number of hours over the 8-day period. The early voting period under HB 1355 begins on the 10th day before an election and ends on the Saturday before election day. SOEs may offer no less than 6 hours of early voting each day and no more than 12 hours each day. The maximum number of hours of early voting under HB 1355, thus, is 96; the fewest is 48.

I’ve written about Florida’s system of early voting here, here, and here, and have a forthcoming coauthored article in Election Law Journal on the topic.

The major question remaining from the DC federal district court’s decision yesterday–which applied only to the five Florida counties covered under Section 5 of the federal Voting Rights Act (Collier, Hardee, Hendry, Hillsborough and Monroe) is whether the state of Florida will continue to ignore state law requiring uniform election codes, and allow a dual election system.

A separate legal challenge in state administrative court may very well determine whether Florida citizens in the 5 Section 5 counties will continue to have two weeks to cast an early ballot, while those residing in thestate’s other 62 counties will be limited to just 8 days.

DC Fed Court Blocks Florida Elimination of Early Voting Days in 5 Voting Rights Act Counties

More on this later…

Here’s a link to the DC court’s decision, and the findings of fact.

But for now, here’s Gary Fineout’s AP story (which has some confused  information gleaned from the decision, as it focuses on Florida’s 5 counties covered by the Voting Rights Act: Florida’s early voting law prior to HB 1355 allowed up to 14 days of early voting (not only 12); HB 1355 reduced the number of days to 8).

TALLAHASSEE, Fla. – A federal court on Thursday gave five Florida counties four extra days of early voting in this fall’s elections.

The Republican-controlled Florida legislature last year cut the state’s number of early-voting days to 8 from 12. But the U.S. District Court for the District of Columbia said the changes won’t happen in Collier, Hardee, Hendry, Hillsborough and Monroe counties, which are covered by Section 5 of the Voting Rights Act of 1965.

That section requires election changes to be cleared by federal officials or federal judges. The states covered under Section 5 are mostly in the South and all have a history of discriminating against blacks, American Indians, Asian-Americans, Alaskan Natives or Hispanics.

The three-judge panel said Thursday that the reduction in early voting days in those counties “would make it materially more difficult for some minority voters to cast a ballot.” But the 119-page ruling did say there were ways Florida could change its early voting practices that would not adversely impact minority voting rights.

A spokesman for Gov. Rick Scott, who signed the changes into law last year, called that part of the decision “encouraging.”

US Department of Justice to Monitor Florida Primary Election

Here’s the press release from the Department of Justice, Office of Public Affairs…

FOR IMMEDIATE RELEASE
Monday, August 13, 2012
Justice Department to Monitor Elections in Florida and Wisconsin

The Justice Department announced today that it will monitor elections on Aug. 14, 2012, in the following jurisdictions to ensure compliance with the Voting Rights Act of 1965 and other federal voting rights statutes: Collier, Hendry, Lee, Osceola and Polk Counties, Fla.; and the city of Milwaukee, Wis.

The Voting Rights Act prohibits discrimination in the election process on the basis of race, color or membership in a minority language group. In addition, the act requires certain covered jurisdictions to provide language assistance during the election process. Collier, Hendry, Lee, Osceola and Polk Counties, as well as the city of Milwaukee, are required to provide language assistance in Spanish.

Civil Rights Division personnel will monitor polling place activities in these jurisdictions. Civil Rights Division attorneys will coordinate federal activities and maintain contact with local election officials.

The DOJ’s press release is available here.

Voting Rights Expanded

In Illinois.

Attorney Dan Johnson on his blog, Progressive Advocacy, writes:

On July 6, Governor Pat Quinn signed into law SB 3722 (passed with exclusively Democratic votes) that contains two innovative and exciting provisions that will lead to more citizens voting this November. The first extends the period of time when citizens can register to vote and update their address until the Saturday before the election….I suspect more than 25,000 will be able to vote — who otherwise would have been turned away from their ballots because of government-imposed administrative deadlines — in November of 2012.

The second provision of the new law requires election authorities to offer early voting on the college campuses of the major public universities in the state. This requirement will ensure that college students (who often don’t have a car) won’t have to make their way to the obscure office of the county clerk off-campus in order to cast an early ballot, but instead will be able to go to a high-traffic area and cast their ballot during the few weeks before the election when early voting is offered.

Things couldn’t be more different in Florida. In May 2011, when they passed HB 1355, Republican lawmakers cracked down on voter registration drives, cut the days of early voting (and still prohibit it on college campuses), and made it more difficult for students and other transient populations to change their address and cast a regular ballot. And these actions preceded and were independent of Governor Scott asking his Secretary of State to strip eligible citizens of their voting rights through his bogus, systematic purge of the voter rolls.

While Illinois stands as a model for other states that want to expand the franchise, Florida returns to the days of Jim Crow, erecting barriers to prevent citizens from participating in the political process.