The presidential vote count in Miami-Dade County was dragging into its fourth day earlier this month when disturbing news broke in Washington D.C.: The U.S. Supreme Court announced it would review a key provision of the 1965 Voting Rights Act that has been the federal government’s most forceful tool in protecting minority rights at the polls.
That would be the VRA’s Section 5, which requires certain states and counties to obtain “preclearance” with the federal government before instituting new voting procedures. The possibility that the Supreme Court might adjust or even suspend that provision has jolted Democrats and voting rights advocates in Florida and across the country. They’re already upset about electoral reforms that were passed in GOP-led legislatures leading into this election — and they know that some of those measures were blocked in the courts after the Justice Department discovered problems with them during preclearance.
In Florida, absurdly long lines and delayed final vote counts led (as in 2000) to punchlines around the country about the Sunshine State’s apparent incompetence when it comes to voting.
Last week in downtown Tampa, St. Petersburg House Democrat Darryl Rouson proposed legislation that would, among other things, expand early voting days, expand early voting hours and boost the number of polling locations. “Florida was the laughingstock of the nation again this year when it came to voting, and we ought to be tired of that,” he said disgustedly.
Former Florida Governor Charlie Crist joined Rouson at the podium. The potential 2014 gubernatorial candidate insisted that this isn’t a partisan issue, but one of basic fairness. “It’s pretty simple to make sure that people get this right, but Florida got it wrong.”
But will Florida get it right?
Although Florida Republican leaders like Will Weatherford, Don Gaetz and others have said that election reform needs to be considered, none has gone on record so far to admit that the reduction of early voting days from 14 to eight was the wrong thing to do, or guarantee that they’ll agree to restoring the original number.
Voting rights advocates say that if Section 5 of the Voting Rights Act goes away, state legislatures could pass bills like Florida’s HB 1355 (the controversial 2011 bill that reduced early voting) without the scrutiny of a Justice Department review.
The Voting Rights Act of 1965 codified that any voting changes in nine (mostly Southern) states and in a number of counties in 16 other states could not be made without getting preclearance from the Department of Justice. States made that list because they had instituted some kind of “test or device” restricting the right to vote (i.e. poll taxes or literacy tests). States in which less than 50 percent of the voting-age population voted in 1960 and/or 1964 were covered in the original act.
A decade later, five counties in Florida (including Hillsborough) were added to the list of Section 5 preclearance jurisdictions, after the law was expanded to include areas that provided materials only in English when members of a language minority (Spanish, in Hillsborough’s case) made up more than 5 percent of voting-age citizens.
Pam Iorio served as Supervisor of Elections in Hillsborough from 1993 to 2003. She admits that during her tenure she considered the preclearance law to be a pain at times, considering the onerous paperwork that had to be sent to the DOJ even to make such mundane changes as the move of a polling station.
But after what happened at the polls earlier this month, she says she’s glad the law exists. “Based on this last experience with elections and the fact that we have worked backwards in so many ways, I think they ought to keep everything in place.”
The basic argument for getting rid of the law is that minority access to voting is much improved since these laws were passed in the 1960s and ’70s.
“Civil rights laws should be designed to combat the evils of society today, not the evils of 1965,” says Joshua Thompson, a staff attorney with the Pacific Legal Foundation in Sacramento, California.
Thompson says the original law was designed to eliminate purposeful and invidious discrimination, but was never designed to “nitpick” regarding questionable voting law changes. He says that if there are voting changes that need to be amended, there are other provisions in the Voting Act that could provide redress.
But others disagree.
Harry Sawyer, a Republican, is supervisor of elections in Monroe County, which encompasses Key West, and is also a Section 5 county. Regarding preclearance, he says it’s needed now more than ever.
“We need this kind of scrutiny. Not because of the supervisors of election, [but] because our legislature and our governor can sign and make law without anyone looking at it when it comes to elections. We need that extra level of protection for our voters, because there are times when the governor and the legislature do not act in the best interests of this state when it comes to voting.”
Believe it or not, HB 1355 was reviewed by the courts after the Lawyers’ Committee for Civil Rights Under Law and the Brennan Center for Justice at New York University of Law submitted documents to the DOJ, on behalf of the League of Women Voters of Florida and the National Council of La Raza. They claimed the law would disproportionately bring harm to voters in the five counties under Section 5.
A three-judge panel of the U.S. District Court for the District of Court ruled that Florida could not implement the provisions of the law in the five counties. So why didn’t Hillsborough and the other counties then go back to 14 days from the more restrictive eight days of early voting? Tampa state legislator Betty Reed told CL on the first day of early voting that she was disappointed that Hillsborough County Supervisor of Elections Earl Lennard did not provide for that.
But Lennard said that was not an option when he testified before the court. “The court did not say, ‘Would you prefer 14 days or eight days?’” he told CL. Instead, he was asked what were the maximum hours he could be open for early voting. He said that would be 96.
Lee Rowland, counsel with the Brennan Center, said the court held the line against reducing even a single minute of that early voting period, but ultimately declined to force the counties to go beyond the number of days allowed in the new statute.
Though Congress reauthorized Section 5 for another 25 years in 2006, close observers fear the high Court will now strike it down. In 2009, the court upheld the VRA on an 8-1 vote, but indicated they might not for very long. In his opinion, Supreme Court Justice John Roberts wrote, “The historic accomplishments of the Voting Rights Act are undeniable, but the Act now raises serious constitutional concerns. The preclearance requirement represents an intrusion into areas of state and local responsibility that is otherwise unfamiliar to our federal system.”
In his dissent Justice Clarence Thomas wrote that “punishment for long past sins is not a legitimate basis for imposing a forward-looking preventative measure that has already served its purpose.”
Lee Rowland with the Brennan Center calls those comments “deeply concerning.”
“We know from the laws that have been passed and the successful challenges to those laws that discriminatory politics are alive and well in the South and other covered jurisdictions under the Voting Rights Act,” she says from New York City.
Other observers, like University of Florida political science professor Dan Smith, say that Section 5 of the VRA should be expanded, not eliminated.
Not that he thinks the law is above reproach; he says Congress should consider an update and that there may be some jurisdictions that no longer need preclearance to make changes. But he says that’s absolutely not the case in Florida.
“I think Election 2012 showed how essential it is to have the federal government play some oversight role in making sure that all citizens have a right to vote,” he says.
Smith testified before a special congressional hearing on HB 1355 last January in Tampa that was chaired by Senate Judiciary Chairman Dick Durbin of Illinois. At the time Smith predicted that the elimination of a full week of early voting would guarantee long lines at the polls and that there would be certain disproportionate effects felt across different racial and ethnic voting groups. “I think we saw that exactly,” he now says — and believes that the GOP-led Legislature intended it that way.
“In many ways, the plan succeeded. It just didn’t quite succeed enough.”
In the short term, Florida Republicans say they intend to revisit the election debacle when they convene in Tallahassee next year, but have been vague about any prescriptions.
Pam Iorio has called on Governor Rick Scott to convene a bipartisan task force to fix the problems at the polls. If he doesn’t, she’s confident that Democrats, Republicans and Independents can come together to make recommendations. “This needs to happen,” she laments. “We’ve regressed and it’s sad to see, because our state deserves better.”
But St. Pete Democrat Darryl Rouson says a task force may lead to nothing.
“We’re always task forcing, and studying stuff… we know what happened. We saw. I’m not in favor of more task forces and more study group. It’s time for action.”
As long lines clogged polling places on Sat., Nov. 3, the last day of the reduced early voting session, the Florida Democratic Party filed a lawsuit in federal court asking a judge to order SOE’s in Palm, Broward and Miami-Dade counties to open early voting locations.
The governor was unmoved. But those three offices, as well as Pinellas and Hillsborough, opted to allow voters to cast absentee ballots in person. Some legal observers said it could have led to a lawsuit in a close election because not all counties in Florida were offering that extra voting. But Secretary of State Ken Detzner said supervisors were free to run elections in their counties as they saw fit.
(Palm Beach County GOP head Sid Dinerstein said at the time that the move reeked of desperation, adding that Romney would win the state anywhere between 2-6 points. He didn’t, and Dinerstein stepped down after the election.)
UF’s Smith is a bit cynical about any serious reform coming from Tallahassee. In fact, he thinks the legislature might pass a law that would bar SOE’s from opening up their offices to absentee balloting in 2014.
“That was flying in the face of not having early voting,” he says of what the SOE’s did on the Sunday before the election. “If you don’t think that’s going to be reformed, you’re fooling yourself.”
Well, there’s always the federal government to provide a backstop. Unless there isn’t.
This article appears in Nov 22-28, 2012.