[EL] Breaking News: Florida early voting case

Thu Aug 16 22:19:40 PDT 2012

With the court inviting the state and affected counties to file an amended
preclearance plan that conforms to the existing law, it would seem like that
would be the most reasonable course of action for the state to take.

That action would moot questions about the constitutionality of Sections
4(b) -- the coverage formula -- and 5. So, if the state wanted to press the
constitutionality issue, then they will not file an amended plan. Clearly,
they are not going to get a favorable ruling on the constitutionality issue
from the DC court, else the court would not have invited the state to file
the amended preclearance plan. With such an easy solution to the situation,
this does not look to be a strong case for appeal to the Supreme Court on
the constitutionality of Section 4(b) and 5.

The court’s belief that an amended plan that offered maximum allowed early
voting hours under the current law would be non-retrogressive rests, in
part, in an observation I made some months back, where I noted how high
density African-American counties -- and as it turns out, none of the
covered counties -- were the ones that offered early voting the Sunday prior
to the election: "In short, the benchmark practice against which we must
compare the early voting changes was 96 hours over 12 days, none of which
was a Sunday." (p.41).

Thus, an amended preclearance filing from the state would not result in the
restoration of Sunday-before-the-election early voting. It is strange,
though, given the controversy that ultimately resulted in Secretary Husted's
uniform early voting directive in Ohio, that Florida allows variable early
voting hours under the new law.

Btw, as an aside, I wasn't aware until I read the ruling of the change in
Florida's statewide portable voter registration law that requires address
transfers implemented through provisional ballots. I have nothing against
this, per se, to ensure people do not vote twice. However, Ned Foley perhaps
would caution Florida about Ohio's experience. Another consequence is that
we may likely not know the outcome of the Florida election until all
provisional ballots can be processed. I shudder to think what is going to
happen with the battle over provisional ballots if Ohio and/or now Florida
are decisive in the presidential election outcome.

============
Dr. Michael P. McDonald
Associate Professor, George Mason University
Non-Resident Senior Fellow, Brookings Institution

                             Mailing address:
(o) 703-993-4191             George Mason University
(f) 703-993-1399             Dept. of Public and International Affairs
mmcdon at gmu.edu               4400 University Drive - 3F4
http://elections.gmu.edu     Fairfax, VA 22030-4444

From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rick
Hasen
Sent: Friday, August 17, 2012 12:31 AM
To: law-election at uci.edu
Subject: Re: [EL] Breaking News: Florida early voting case

Breaking News [UPDATED]: 3-Judge Court in DC Blocks Florida Elimination of
Early Voting Days in 5 Counties Covered by Voting Rights Act 
Posted on August 16, 2012 9:13 pm by Rick Hasen 
[UPDATED POST] AP reports a 119 page decision, (and 38 pages of factual
findings) issued by a three-judge court. The court gave this summary of its
holding:
Upon consideration of the entire record, our conclusions may be summarized
as follows. First, we conclude that we cannot, at this time, preclear
Florida’s early voting changes because the State has failed to satisfy its
burden of proving that those changes will not have a retrogressive effect on
minority voters. Specifically, the State has not proven that the changes
will be nonretrogressive if the covered counties offer only the minimum
number of early voting hours that they are required to offer under the new
statute, which would constitute only half the hours required under the prior
law.
Following an approach approved by the Supreme Court, however, we also
conclude that if Florida and the covered counties were to submit a
preclearance plan that offered early voting for the maximum number of hours
authorized by the new statute, which would be exactly the same number as
under the prior law, and did so on a standard 7 a.m. to 7 p.m. schedule, it
is likely that Florida would be able to satisfy its burden of proving that
the overall effect of its early voting changes would be nonretrogressive.
Second, we conclude that Florida has satisfied its burden of proving that
the changes to the procedures for inter-county movers neither were enacted
with a discriminatory purpose nor will have a retrogressive effect on
minority voters, and that those changes are therefore entitled to
preclearance.
The opinion that follows summarizes our findings of fact and sets forth our
conclusions of law on the question of statutory preclearance.2 The appendix
to this opinion separately sets forth our findings of fact. See FED. R. CIV.
P. 52.
Footnote 2 reads: Florida’s complaint also seeks alternative relief in the
form of a declaratory judgment that section 5 and section 4(b) of the Voting
Rights Act are unconstitutional. See [147] Third Am. Compl. ¶¶ 102-11. We
have bifurcated the statutory preclearance and constitutional issues, and
will address the latter in the course of future proceedings in this case.

This entry was posted in election administration, The Voting Wars, Voting
Rights Act. Bookmark the permalink.
On 8/16/12 9:15 PM, Rick Hasen wrote:
Breaking News: 3-Judge Court in DC Blocks Florida Elimination of Early
Voting Days in 5 Counties Covered by Voting Rights Act 
Posted on August 16, 2012 9:13 pm by Rick Hasen 
AP reports a 119 page decision, but right now on the DC court website there
is a link to only 38 pages (including the Findings of Fact) from that
opinion.  The website indicates the opinion is written by Judge
Kollar-Kotelly.  It is not clear if there are any dissents, or if the Court
addressed any constitutional issues related to the Voting Rights Act.  The
opinion must have been released very late this evening.
If this opinion stands, it would require longer early voting hours in just
the five Florida counties covered by the Voting Rights Act.
But that raises some interesting equal protection questions: can Florida
have extended early voting only in these five counties?
MORE to come

Posted in election administration, The Voting Wars, Voting Rights Act |
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-- 
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://law.uci.edu/faculty/page1_r_hasen.html
http://electionlawblog.org
Now available: The Voting Wars: http://amzn.to/y22ZTv 

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-- 
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://law.uci.edu/faculty/page1_r_hasen.html
http://electionlawblog.org
Now available: The Voting Wars: http://amzn.to/y22ZTv 