Gov. Rick Scott's administration has a novel strategy to preserve state election changes that would disproportionately hurt minority voters: Get the courts to end the federal process in Florida that could prevent the changes from taking effect in Hillsborough and four other counties. A three-judge court in the District of Columbia should not fall for the misdirection play, and it should not approve the discriminatory voting practices embraced by the governor and the Legislature.
The state first went shopping over the summer when it asked the federal court — rather than the Obama administration's Justice Department — to sign off on four controversial provisions of a new elections law that would particularly hurt the poor and minorities. Adopted by the GOP-controlled Legislature this year, the changes reduce the number of days for early voting, make it harder for people who move to cast regular ballots at their new polling places, and put up new roadblocks for voter registration drives and citizen petitions.
The state needs federal preclearance before the changes can take effect in five counties, including Hillsborough. Those five were found in 1975 to have had racial conditions that could have undermined implementation of the Voting Rights Act. It is bad enough the state did a last-minute end run around the Justice Department in search of a more sympathetic venue. But rather than pin all of its hopes on a direct decision, Scott's elections chief, the formerly well respected Secretary of State Kurt Browning, went a step further last week by challenging the federal government's underlying authority to preapprove elections changes in Florida.
The state is diverting the court's attention to a larger issue. Browning now argues the 40-year-old formula that designates the five Florida counties among jurisdictions nationwide that must obtain preclearance for any elections change is arbitrary and dated. It is a reasonable question whether the state has improved its elections process to the point that it no longer requires federal oversight in these counties. But there is a process for doing that. Under a so-called "bailout" provision, communities can be freed from federal oversight if they demonstrate that they have removed discriminatory voting practices over the previous 10-year period. Scores of cities and counties have freed themselves under the bailout provision since 1967, including nine in the last year alone.
The federal government has hardly overreached in enforcing the law. In the last four decades, the Justice Department has objected only four times when asked to approve election changes in Florida. And many of these objections were over the impacts that election changes would have on minorities and the poor — the exact issue in the current case. The state should not make a blanket assumption that discrimination has passed. This year in Hillsborough, for example, county commissioners adopted new district lines that all but punished Hispanics for growing faster than any other group over the last decade. That illustrates why Congress has routinely reauthorized the Voting Rights Act and expanded its reach.
Whether Florida's new election law discriminates against Hispanic voters in Hillsborough County and four others is a separate question from whether it is time to end the federal preclearance in this state. The answer to the first question is clear, and the court should not be distracted by Florida's last-minute attempt to divert its attention to a broader issue.