Well, surprise, surprise. Stymied once again at the ballot box, Florida Republicans want to change the rules for statewide ballot initiatives…

On Tuesday, the Florida House Judiciary Committee proposed PCB CDJ 19-01, a cynical power grab by the majority party to crack down on the citizen initiative process.  Over the past 20 years, Floridians, in a state dominated by Republican lawmakers, have consistently approved progressive ballot measures–from High Speed Rail, to Raising the Minimum Wage, to Fair Redistricting, to Medial Marijuana, to Felon Re-infranchisment.  When fellow citizens place these statewide constitutional amendments on the ballot for public consumption, Florida voters consistently gobble them up.

Now Republican lawmakers want to crackdown on the initiative process itself, changing the rules of the game so as to stymie future efforts to have citizens approve statewide ballot issues the majority party can easily bury in the legislative process.

PCB CDJ 19-01 is not the only attack on the process of direct democracy in Florida this session.  SJR 232 would require citizen-initiated constitutional amendments to pass with a 2/3rds supermajority, up from 60% (which, itself, was jacked up from a simple majority by a statewide referendum placed on the ballot by the Republican legislature in 2006).

This is all part of a coordinated attack on the initiative process, and not only in Florida (see what’s happening in other states in this Brennan Center piece). It’s not new (I wrote about similar efforts more than a decade ago); as it was then, it is clearly motivated by partisanship and control of the policy agenda.

So, it’s not rocket science as to why Republican-controlled legislatures try to change the rules of the game, curtailing the power of citizens to use the initiative process.  Progressive statewide ballot measures often are approved in states where conservatives dominate the state legislature. In these states, Republican lawmakers aren’t used to, nor do they like, ceding the legislative agenda to the people. After all, in the first part, in many states they control state government precisely because they were able to successfully gerrymander legislative districts–drawing favorable districts to afford them a majority of seats in both legislative chambers, thus controlling the policy agenda.

Of course, direct democracy is no panacea for what ails our republic, and over the past 25 years I’ve written critically about the process. But as Woodrow Wilson, no fan of the initiative process himself, conceded in 1911 while on the presidential hustings, citizen lawmaking can serve as the “gun behind the door–for use only in case of an emergency, but a mighty good persuader, nevertheless.”

Think your ballot counts in Florida? If legislation passes this session, you may never know…

One in 20 ballots cast by the 56.6k 18-21 year-olds in Florida who voted by mail in the 2018 General Election were rejected as invalid by county Canvassing Boards. This figure is even higher than in previous election years, as I found in my report for ACLU Florida.

I suspect that federal Judge Mark Walker, who ruled prior to the 2018 General Election that Florida voters should have an opportunity to cure their vote-by-mail ballots if they they had a problem with their signature, might be surprised by this figure.

Perhaps I’ll write more about this troubling statistic. Or perhaps not.

It will depend on whether election records in Florida remain open to the public for scrutiny.

Chances are, they may not be.  So much for the “Sunshine State.”

Republican Representative Cyndi Stevenson has introduced HB 218, https://myfloridahouse.gov/Sections/Bills/billsdetail.aspx?BillId=63174, which is similar to Republican Senator Tom Lee’s SB 342, https://www.flsenate.gov/Session/Bill/2019/00342.*

The bills are a follow-up to a 2018 bill (HB 761) filed by Representative Stevenson, which would have kept voter information secret. That bill passed 10-0 out of committee. There was no public discussion or debate.

Sure, there some privacy issues that may concern some people when voter registration records available to the public.  But open record laws are essential if you want to ensure you haven’t been kicked off the voter rolls or to ensure that that ballot that you cast actually is counted.

Do you know if you were one of the 35k voters in Florida who had his or her ballot rejected (either their Vote-by-Mail or their provisional ballot cast at the polls)?

Sadly if this bill passes, in the future, you may never know.

Public records are essential for scholars to be able to dig down into the weeds to ensure the equal protection of voters.  Our ability to do so in Florida hinges on whether the state legislature decides to follow the self-serving recommendation of our elected Supervisors of Elections to restrict voter records and avoid public scrutiny and accountability.

Don’t be fooled about this bill being an effort to protect voters.  If it passes, it will have exactly the opposite effect. Without transparency, voter disenfranchisement becomes much more of a reality.

Don’t let democracy in the Sunshine State die in darkness.

 

*Note: Corrections for 2019 legislation.

 

Latest Research: “Revisiting Majority-Minority Districts and Black Representation” in PRQ

HKMS 2017 PRQ Abstract

Available here

And here’s the key figure:

HKMS 2017 PRQ Table 4

“Figure 4 plots the probability a district elects a black lawmaker in the Deep South (left panel) versus the Rim South (right panel) depending on the size of a district’s black population. This figure shows that, in each of the election periods we include, black legislators are elected with smaller black populations in the Rim South relative to the Deep South. This figure does not contain the same probability for districts in the Non-South because, as the coefficients imply, the differences are larger still. In 1993–1995, the probability that a district elects a black lawmaker reaches 0.5 (an even chance) when the black population is between 54 percent and 55 percent in the Deep South. In that same period, the probability a district elects a black legislator reaches 0.5 when the black population is between 49 percent and 50 percent in the Rim South. This 5 percentage-point difference nearly doubles n 2003–2005 (52% to 53% for the Deep South versus 43 percent to 44 percent for the Rim South) and in 2013–2015 (48% to 49% for the Deep South versus 40% to 41% for the Rim South).11 An additional trend this figure reveals is that, in each region, the threshold required to elect a black legislator declined between 1993–1995 and 2013–2015.”

Looking forward to FSU Law Review special issue on Voting Rights. Here’s Michael Herron & my take on NC’s VIVA

RACE, SHELBY COUNTY, AND THE VOTER INFORMATION VERIFICATION ACT IN NORTH CAROLINA*

MICHAEL C. HERRON & DANIEL A. SMITH

ABSTRACT
Shortly after the Supreme Court in Shelby County v. Holder struck down section 4(b) of the Voting Rights Act (VRA), the State of North Carolina enacted an omnibus piece of election-reform legislation known as the Voter Information Verification Act (VIVA). Prior to Shelby, portions of North Carolina were covered jurisdictions per the VRA’s sections 4 and 5—meaning that they had to seek federal preclearance for changes to their election procedures—and this motivates our assessment of whether VIVA’s many alterations to North Carolina’s election procedures are race-neutral. We show that in presidential elections in North Carolina black early voters have cast their ballots disproportionately in the first week of early voting, which was eliminated by VIVA; that blacks disproportionately have registered to vote during early voting and in the immediate run-up to Election Day, something VIVA now prohibits; that registered voters in the state who lack two VIVA-acceptable forms of voter identification, driver’s licenses and non-operator identification cards, are disproportionately black; that VIVA’s identification dispensation for voters at least seventy years old disproportionately benefits white registered voters; and, that preregistered sixteen and seventeen year old voters in North Carolina, a category of registrants that VIVA prohibits, are disproportionately black. These results illustrate how VIVA will have a disparate effect on black voters in North Carolina.

Here’s a link to the pre-publication

Race, Shelby County, and the Voter Information Verification Act in North Carolina

Michael Herron and I have posted this draft for the March symposium on voting rights for the Florida State University Law Review.

Here is the abstract:

Shortly after the Supreme Court in Shelby County v. Holder struck down Section 4(b) of the Voting Rights Act (VRA), the state of North Carolina enacted an omnibus piece of election-reform legislation known as the Voter Information Verification Act (VIVA). Prior to Shelby portions of North Carolina were covered jurisdictions per the VRA’s Sections 4 and 5—meaning that they had to seek federal preclearance for changes to their election procedures—and this motivates our assessment of whether VIVA’s many alterations to North Carolina’s election procedures are race-neutral. We show that in presidential elections in North Carolina black early voters have cast their ballots disproportionately in the first week of early voting, which was eliminated by VIVA; that blacks disproportionately have registered to vote during early voting and in the immediate run-up to Election Day, something VIVA now prohibits; that registered voters in the state who lack two VIVA-acceptable forms of voter identification, driver’s licenses and non-operator identification cards, are disproportionately black; that VIVA’s identification dispensation for voters at least 70 years disproportionately benefits white registered voters; and, that preregistered sixteen and seventeen year old voters in North Carolina, a category of registrants that VIVA prohibits, are disproportionately black. These results illustrate how VIVA will have a disparate effect on black voters in North Carolina.