Justice Department says Florida fails 'burden of proof' on new voting law

Published March 24, 2012

TALLAHASSEE — The U.S. Department of Justice says Florida has not proved that its new voting law protects racial and ethnic minorities from discrimination in Hillsborough, Monroe and three other counties.

The changes reduce the days of early voting, expand the use of provisional ballots and require groups that register voters to be fined if they fail to submit forms within 48 hours.

The federal government's assertion is in court papers filed before a three-judge panel in U.S. District Court in Washington, D.C. The panel must decide whether to approve the three changes in time for the fall elections in the five counties, a process known as pre-clearance.

The other affected counties are Collier, Hardee and Hendry.

A joint status report filed by both sides in court this week says in part: "The United States' position is that the state of Florida has not met its burden of proof under Section 5 of the Voting Rights Act, on behalf of its covered counties, that these three sets of proposed voting changes neither have the purpose or will have the effect of denying or abridging the right to vote on the basis of race, color, or membership in a language minority group."

The head of the Justice Department is U.S. Attorney General Eric Holder, an appointee of President Barack Obama.

In many cases, the agency's Voting Rights Section handles pre-clearance matters. But Florida opted instead to seek approval from a three-judge panel.

Several voter advocacy groups have joined the case of Florida vs. United States on the Justice Department's side, claiming that the changes are designed to suppress voter turnout and make it harder to register new voters in Florida.

They include the Florida State Conference of the NAACP, League of Women Voters, National Council of La Raza and the American Civil Liberties Union.

"We think it's very significant that the Department of Justice has taken that position on all three of the remaining changes, both on purpose and on effect," said Julie Ebenstein, policy and advocacy counsel at the ACLU of Florida. "Since DOJ is normally the body that does administrative pre-clearance, we're encouraged that they think Florida hasn't met its burden."

At issue are three provisions in a legislative overhaul of the state elections code (HB 1355) that were made in the 2011 session and signed into law by Gov. Rick Scott.

A fourth change that was also before the court was approved by the Justice Department on Wednesday. It reduces the shelf life of voters' signatures from four years to two years on initiative petitions seeking to amend the Florida Constitution.

All of the changes already have been implemented in Florida's other 62 counties. Most voters will encounter them for the first time when early voting begins in advance of the statewide primary on Aug. 14.

The last day a person can register to vote to be able to cast a ballot in the primary is July 16.

On Monday, the three-judge panel is scheduled to finalize a schedule for the case. A trial, if necessary, would be held in May.

A spokesman for Secretary of State Ken Detzner said the state is confident the changes will be approved by the courts.

"We continue to feel that the other three sections are non-discriminatory," spokesman Chris Cate said.

Time is starting to be a factor. In a joint status report filed with the court March 2, the state said it "strongly opposes the United States' attempt to extend this action well into the summer."

In December, all parties signed a protective order keeping most information in the case secret, including the identity of a state official whose sworn testimony on Feb. 29 has prompted another legal dispute, involving the out-of-county address change.

The Justice Department accuses the state of making a new interpretation that would require any voter who moved from another county to file a provisional ballot, including people who vote early. The state says that claim is false.

Times researcher Natalie Watson contributed to this report. Steve Bousquet can be reached at or (850) 224-7263.