If Florida Secretary of State Kurt Browning is so sure the state's new election law has no adverse impact on minority voters, why did he abruptly sidestep a U.S. Justice Department review and ask a federal court to rule instead? Withdrawing the four most controversial provisions of the law from the department's consideration and redirecting them to a federal court will cost Florida taxpayers and prolong the cloud of uncertainty over the election procedures. Browning must have thought the department was poised to reject the changes. But Florida's new law erects roadblocks to minority voting, and it should fail under the Voting Rights Act no matter who reviews it.
Five counties in Florida with a history of voter discrimination — Hillsborough, Collier, Hardee, Hendry and Monroe — are required under the Voting Rights Act to submit to extra scrutiny by preclearing any changes to their election laws. The state may choose to submit the legislation to the Justice Department or to a three-judge court in Washington, though experts say it's rare to see a maneuver like Florida's in which a request for preclearance is withdrawn in the middle of the process.
Browning's office, which to avoid media attention announced the decision to change venues on a Friday evening, said the reason for the move was to eliminate "the risk of a ruling impacted by outside influence." This is a reference to groups such as the League of Women Voters of Florida and the Brennan Center for Justice, which have filed objections to Justice Department preclearance. But these groups are just as likely to be able to participate as third parties in the state's lawsuit.
The four election law changes under review include burdensome restrictions and costly fines on groups that conduct voter drives, a reduction of early voting from 14 to eight days, limits on the ability of voters who move outside their county of registration to vote using a regular ballot, and restrictions on gathering signatures for voter initiatives.
Under the court proceeding, Florida has the burden of showing that the new law's provisions do not have a retrogressive effect on minority voters. Good luck with that.
Minority voters depend more on third-party registration drives to register to vote. Yet Florida's new restrictions are so burdensome that the League of Women Voters has said it will no longer conduct voter drives in the state. Statistics show in recent elections that minority voters in Florida relied disproportionately on early voting. And since minorities are more likely to rent a home, a rule that burdens voters who move outside their county between elections will have an unequal impact.
Florida's suit will be heard by a three-judge court in the District of Columbia, with any appeal going directly to the U.S. Supreme Court. The U.S. attorney general is the defendant, which means he will be able to weigh in to oppose preclearance or suggest that Florida has failed to show the law doesn't disenfranchise minority voters and more data is needed.
In the meantime, the state has one set of election laws for 62 counties and another set for the other five. Browning's last-minute shift of the preclearance request from the Justice Department to the courts smacks of shopping for a more favorable venue, and it will only cause further delays and confusion. The federal court should reject the changes.