EXCLUSIVE: The Effects of Florida’s HB1355 Early Voting Law on Turnout

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 panel, “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 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 covered counties (Collier, Hardee, Hendry, Hillsborough, and Monroe) under Section 5 of the VRA, those five 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 elections supervisors of each of the five 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; 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).

As I noted back in March following Florida’s (Republican) Presidential Preference Primary (PPP), under Florida’s dual election system the percentage of early voters casting a ballot averaged across the five Section 5 counties was higher than the average use of early voting in the state’s other 62 counties, with the reduced days and hours of early voting.  As I wrote then, “a greater percentage of registered Republicans opted to vote early in-person in the five Section 5 counties than registered Republicans in neighboring counties. Some 11.8% of registered Republicans voted early in the five VRA Section 5 counties, compared to 9.3% of registered Republicans who voted in the other 62 counties.  More significantly, early in-person voting in the five counties with the extended voting window accounted for a greater percentage of the total turnout in the Presidential Preference Primary, on average, compared with turnout in the other 62 counties.  Nearly one in three votes cast in the GOP primary election in the five Section 5 counties were ballots cast early in-person by voters, compared to less than 22% of all ballots cast in the other 62 counties. Florida 2012 Presidential Preference Primary Section 5 VRA Counties Early Voters Graph

The same was true in the recent August 14 statewide primary with Republicans, Democrats, third party, and nonpartisan voters coming to the polls, as Dr. Herron and I found by merging the 67 county early voter files (which we downloaded three days after election day) with the state’s (yet to be official) turnout figures from the 67 counties.  Of the roughly 183k registered voters who turned out to vote in the five Section 5 counties (Collier, Hardee, Hendry, Hillsborough, and Monroe), 18.96% came to the polls in person over the two-week early voting period (Monday-Saturday, Monday-Saturday). (As I mentioned above, each of the Section 5 counties still operate under the old law, and in addition to offering eight hours a day Monday through Friday, have opted to offer eight hours on the two Saturdays, for a total of 96 hours of early voting).

In contrast, of the nearly 2.16 million registered voters who turned out to vote in the state’s other 62 counties, which had a total of only eight days of early voting (Saturday through Saturday) and averaged considerably less than 96 total hours over the week, only 15.39% voted early, nearly 3.6 percentage points less than the five Section 5 counties.

This certainly seems to provide further evidence that the DC federal court last week was correct in striking down Governor Scott’s effort to curtail early voting.  Having a longer time-frame, with more available hours to cast an early ballot, only enhances a citizen’s likelihood of getting to the polls–including African Americans living in the protected counties (although we need to conduct further analysis to verify this possibility).  But of course, that’s why most Republican lawmakers supported HB1355–and Governor Scott quickly signed it into law–because they’re not terribly interested in trying to expand Florida’s electorate.

And early voting may very expand the electorate, notwithstanding the conventional wisdom (expressed even by those who opposed the cut-back of early voting, including Reed College Professor Paul Gronke, who served as an expert opposing the shortening of early voting in the DC litigation) that early voting may simple redistribute the timing of those citizens who already plan to cast a ballot vote.

Florida’s quasi-natural experiment, which Dr. Herron and I are investigating for a series of papers (including one we’re presenting next week at what promises to be a fantastic panel on the strategic mobilization of minorities at APSA, with Dr. Matt Barreto serving as our discussant), provides some leverage into the question of whether HB 1355 may have a depressing effect on overall turnout.

What we’re seeing in Florida (due to the state’s dual election system), is that having early voting spread over two weeks appears to give a wider range of voters more opportunities to turn out to vote.  When faced with fewer days and shortened hours of early voting, registered voters who have become habituated to vote early may decide to stay home.

This is particularly an important point when thinking about the five Florida counties covered by Section 5 of the VRA.  Average turnout is historically lower in these five counties than the statewide average. This, of course, is one of the reasons why the five counties were added in 1975 to those counties protected by the Justice Department under Section 5 VRA.

Average turnout of the five Section 5 counties compared to the state’s other 62 counties over the five statewide elections immediately prior to the implementation of HB 1355 (2008 PPP, 2008 primary, 2008 general election, 2010 primary, and 2010 general election) was 4.61 percentage points less, 40.81% to 45.42%.

And average turnout of the five Section 5 counties over the two statewide primary elections held in 2008 (the January PPP and the August primary) was only 30.13%, compared to an average of 35.79% in the state’s other 62 counties, an even greater difference of 5.66 percentage points.

But when comparing turnout numbers for the two primaries (the January PPP and the August primary) held in 2012 under Florida’s dual election system–with more early voting opportunities for registered voters living in the five section 5 counties compared to those residing in the other 62 counties–the turnout gap narrowed considerably, on average.  Turnout in the five Section 5 counties was 32.97%, compared to 36.20%, a difference of only 3.23 percentage points.

So, what are we to make of this? Admittedly, the turnout gap between the five Section 5 and the other 62 counties is not huge, but it is indicative that HB 1355 may be depressing turnout in those counties that must comply with the new, more restrictive law.  And, it is certainly arguable that since registered voters in the five Section 5 counties have historically relied more heavily on early voting in past elections, and if early voting days and hours are reduced in those counties if HB 1355 is eventually upheld, their comparatively lower turnout levels might take even more of a hit.

Unfortunately, we will not have a more definitive answer to this possibility until after the 2012 election.  But with what we’ve seen so far, it seems pretty clear that reducing the number of days and hours of early voting in Florida has had a negative effect on voter turnout.

Stay tuned. Much more from Dr. Herron and me on this later…

Law and Election Politics: The Rules of the Game

I suppose it’s time to update this 6-year old post. Here’s a link to the chapter that’s now somewhat dated!

Daniel A. Smith, “Direct Democracy: Regulating the “Will of the People”


I’m really looking forward to the publication this fall of the 2nd edition of Matthew J. Streb’s Law and Election Politics: The Rules of the Game. What a great lineup!

Here’s the Table of Contents

Introduction: Linking Election Law and Electoral Politics, Matthew J. Streb

Chapter 1: Campaign Finance Law—The Changing Role of Parties and Interest Groups, Michael M. Franz

Chapter 2: Public Financing of Elections—Past, Present, Future, Peter L. Francia

Chapter 3: The Internet: The Promise of Democratization of American Politics, Lee E. Goodman

Chapter 4: Voting Machines: The Question of Equal Protection, Thad Hall and Lucy Williams

Chapter 5: Voter Identification Laws: The Controversy over Voter Fraud, Lorraine C. Minnite

Chapter 6: Early Voting: The Quiet Revolution in American Elections, Paul Gronke

Chapter 7: Recounts: Elections in Overtime, Edward B. Foley

Chapter 8: Direct Democracy: Regulating the “Will of the People,” Daniel A. Smith

Chapter 9: Political Parties and Primaries: The Tension between Free Association and the Right to Vote, Kristin Kanthak and Eric Loepp

Chapter 10: Third Parties—How American Election Law and Institutions Cripple Third Parties, Marjorie Randon Hershey

Chapter 11: Redistricting—Racial and Partisan Issues Past and Present, Charles S. Bullock III

Chapter 12: Judicial Elections—Just Like Any Other Election? Matthew J. Streb

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

January 12, 2012

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


“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
National Bar Association
Tallahassee, FL

Sara Pemberton
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


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.