TALLAHASSEE — Florida's decision to reduce the days of early voting discourages African-Americans from voting and cannot take effect in Hillsborough and four other counties in the November election, a panel of judges ruled late Thursday.
The long-awaited decision strikes down changes to early voting in those counties, part of an overhaul of election laws that has been under steady legal and political assault since it passed the Legislature and was signed into law last year by Gov. Rick Scott.
"The state has failed to satisfy its burden of proving that those changes will not have a retrogressive effect on minority voters," the judges wrote, adding that a shorter early voting period is "analogous to closing polling places in disproportionately African-American precincts."
The ruling by a three-judge tribunal in U.S. District Court in Washington means the five counties must offer 12 days of early voting, instead of the eight called for under the new law.
Besides Hillsborough, the affected counties are Monroe, Collier, Hardee and Hendry.
All five counties have been under federal jurisdiction since the mid 1970s to protect minority voters from discrimination in voting. Any changes to election laws in those counties must be precleared by the Department of Justice or the courts before they can go into effect.
African-Americans make up 15 percent of the voters in Hillsborough County.
The ruling is a victory for civil rights and voter advocacy groups who have accused the state's Republican-controlled Legislature of a scheme to suppress black turnout by reducing the early voting schedule.
The old law required 96 hours of early voting over as many as 14 days, but no affected county offered it on more than 12 days. The new law allows a minimum early voting schedule of 48 hours over eight days and a maximum of 96 hours.
The judges said the state might have won the preclearance case if all 67 counties had assured them that they would offer 96 hours of early voting from 7 a.m. to 7 p.m. over eight days. "But neither Florida nor the counties have submitted the counties' intended hours. Nor do we have any real indication of what the counties will do," the judges wrote.
The judges cited statistics showing that in four of the past five elections in Florida, blacks were much more likely to vote at early voting sites than whites were.
They also cited testimony by the Rev. Charles McKenzie of Tampa, Florida's liaison to the Operation PUSH coalition, who said a longer early voting period is essential to getting blacks to vote. "Two weeks gives us enough time to find the people who want to vote but need help getting to the polls," he testified.
The state's expert witness argued that the surge in black turnout that helped deliver Florida to Barack Obama as the first black president in 2008 was an "outlier" and an "anomaly" that should not be considered in analyzing blacks' early voting patterns.
As the state began the pre-clearance process more than a year ago, then-Secretary of State Kurt Browning ordered that the shorter early voting schedule be implemented in the other 62 counties.
In doing so, Browning created two different early voting schedules in side-by-side counties: Hillsborough will have more days of early voting than Pinellas, and Monroe will have more than Miami-Dade.
Early voting in Hillsborough will begin Oct. 22, five days sooner than in Pinellas.
Pinellas County Supervisor of Elections Deborah Clark said it is wrong for the state to have two different early voting systems in the same statewide election.
"This is a great step backwards," Clark said. "I would much prefer that we have the same procedures because it's the same election."
Hillsborough Supervisor of Elections Earl Lennard said he had no opinion about the judges' reasoning and that the decision brings clarity to the future early voting schedule.
"I can move forward with planning and implementing early voting under the old calendar, rather than the new calendar," Lennard said.
The judges did approve a requirement in the five counties that voters who change their address when they vote must cast a provisional ballot.
The judges who decided the case were Merrick Garland, Ellen Huvelle and Colleen Kollar-Kotelly.
In reviewing the Legislature's actions, they cited a floor speech by Sen. Mike Bennett, R-Bradenton, who favored the new early voting schedule and said that it should be harder to vote, as it is "in Africa," where, he said, people might walk 200 miles to vote. PolitiFact Florida rated that claim Pants on Fire.
"Whether or not Senator Bennett actually intended his statement to have racial undertones, it certainly can be read that way," the judges wrote.
But the judges said that because no other lawmaker made a similar statement, Bennett's remark is "too slim a reed" upon which to claim that the Legislature intended to discriminate against black voters.
The governor's lawyers are reviewing the ruling and are working on a compromise "that will find the best way to make the court happy" and sustain the intent of the law, said Brian Burgess, the governor's communications director.
Times/Herald staff writer Mary Ellen Klas contributed to this report. Steve Bousquet can be reached at [email protected] or (950) 224-7263.