Wednesday, September 26, 2012

District Court Declines to Enjoin Florida Early Voting Change

Judge Timothy J. Corrigan (M.D. Fla.) ruled in Brown v. Detzner that the plaintiffs failed to show that they were substantially likely to succeed on their statutory and constitutional claims challenging Florida's 2011 changes to its early voting law.  Judge Corrigan thus rejected the plaintiffs' motion for a preliminary injunction.

The ruling means that Florida's 2011 changes to its early voting law--and the counties' rules and regulations as to early voting days and times--will almost certainly stay in place for the upcoming election.  But if Judge Corrigan is right, the changes will have little effect on access to the ballot.

(One issue that Judge Corrigan didn't touch: the plaintiff's argument that the disparate voting days and times in the various counties violated the Equal Protection Clause.  Judge Corrigan wrote that the plaintiffs failed to plead this claim.) 

The case arose in response to Florida's 2011 changes to its early voting laws.  Florida reduced the number of early voting days, but gave local elections supervisors the discretion to allow voting on certain other days and to offer up to 12 hours of voting each day.  On net, the 2011 changes didn't necessarily mean fewer total voting hours--and several counties intend to offer the same number of hours as they did under the old law, 96 hours in all--but it does mean fewer total days.  (There's a nice chart in the last six pages of the linked file that gives each county's voting days and times and total available voting hours.)

Here's the old law:

Early voting shall begin on the 15th day before an election and end on the 2nd day before an election. . . .  Early voting shall be provided for 8 hours per weekday and 8 hours in the aggregate each weekend at each site during the applicable periods.  Early voting sites shall open no sooner than 7 a.m. and close no later than 7 p.m. on each applicable day.

And here's the new one:

Early voting shall begin on the 10th day before an election that contains state or federal races and end on the 3rd day before the election, and shall be provided for no less than 6 hours and no more than 12 hours per day at each site during the applicable period.

The plaintiffs, including Congresswoman Corrine Brown, the SCLC Jacksonville Chapter, and the Duval County Democratic Executive Committee, challenged the new law, arguing that it violated Section 2 of the Voting Rights Act and the Equal Protection Clause by burdening the rights of African Americans to vote.  (Because five Florida counties are covered jurisdictions under the VRA, those counties had to seek preclearance under Section 5 before implementing the change.  The Section 5 court originally declined to preclear, but said that "Florida would likely satisfy its burden of proving that the overall effect of its changes in law would be nonretrogressive" (and thus satisfy the Section 5 preclearance standard) if the covered counties opened their polls for the maximum allowable time--thus ensuring that the total available voting hours under the new law would equal the total available hours under the old one.  That's exactly what they did.)

Judge Corrigan ruled that the plaintiffs failed to show a substantial likelihood of success on either the VRA or the Equal Protection claim.  In particular, he ruled that the plaintiffs couldn't show that Florida enacted the change with discriminatory purpose.  Looking to the Arlington Heights factors, he said that the change will have a disproportionate effect on minority voters (although this effect will be mitigated if counties implement the full 96-hour voting plan allowable under the new law); nothing in the historical background of the change suggests a racial intent; irregularities in the process of enacting the new law were insufficient to suggest a racial intent; and the legislative history didn't suggest a racial intent (although some statements from the history suggested otherwise). 

SDS

http://lawprofessors.typepad.com/conlaw/2012/09/district-court-declines-to-enjoin-florida-early-voting-change.html

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