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.