Election confusion looms in Florida

Published July 12, 2012

Most Florida voters don't know it, but come the Aug. 14 primary election, the majority of them won't have the same opportunities to cast a ballot as Floridians in five counties because the state is enforcing two different sets of rules.

That's the basis of the latest lawsuit seeking to halt Gov. Rick Scott's assault on voting rights. And it shows how determined the governor is to ignore law and precedent in order to manipulate the election process.

On June 29, the American Civil liberties Union of Florida, the National Council of La Raza, the nation's largest Hispanic civil rights organization, and state Sen. Arthenia Joyner, D-Tampa, filed an administrative petition challenging the state's policy that has created an illegal, dual system of elections.

Five Florida counties (Hendry, Hardee, Collier, Monroe and Hillsborough) operate under rules that were the law before 2011. These counties are "covered jurisdictions" under the Voting Rights Act. Consequently, any change in voting law or procedure must be approved ("precleared") by the U.S. Justice Department or the federal court in Washington before it can be implemented.

The remaining 62 Florida counties are operating under rules approved by the 2011 Legislature and immediately implemented by the Scott administration.

As such, voters in 62 counties will enjoy fewer early-voting days, and they won't be able to update their address on election day and still vote a regular, not a provisional, ballot. (The law's restrictions on volunteer voter registration programs, enacted at the same time, have been blocked so far by the federal court.) These are not mere changes to address "potential fraud" or enhance the efficiency of elections. They were intended to make it more difficult for minority and elderly voters, working people and students to vote and have their vote counted.

There are now different election laws and procedures on either end of the bridges across Tampa Bay; different rules for Naples and neighboring Bonita Springs; different rules for Miami and the Florida Keys. Joyner's district spans three counties that operate under two different voting laws.

This is a recipe for chaos and confusion. Has Scott forgotten Florida's embarrassing performance in the 2000 election?

Conducting an election with rules that vary from county to county also violates Florida law requiring the secretary of state as chief election officer to "maintain uniformity in the interpretation and implementation of the election laws."

The secretary, an appointee of the governor, is ignoring established interpretations of election law that governed the administration of elections under both Democratic and Republican administrations.

In 1998, facing an almost identical situation of a new election law and a required Voting Rights Act review, the secretary of state followed a Division of Elections advisory opinion that election law changes not be implemented anywhere until the law received approval.

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The division determined that all 67 Florida counties must enforce the existing election code and not implement changes that had yet to be federally approved: "To do otherwise … has the potential to cause widespread voter confusion, affect the integrity of the election process, impair uniform application of the election laws and could violate federal and state law."

The Division of Elections noted that the secretary of state has a legal duty to maintain uniformity in the application and operation of election laws: "(T)he secretary cannot sanction such a dual voting system."

Again, in 2007, the then-secretary of state followed the Division of Elections opinion. The division advised rather emphatically that changes in law relating to voter registration "cannot be implemented in any county until (the U.S. Justice Department) preclears them."

Even the Florida Legislature, with its reputation for a too-frequently partisan approach to voting rights, has not been as radical in its interpretation of the 2011 law as the Scott administration has been in implementing the measures. After passage of the law, the Senate Subcommittee on Ethics and Elections acknowledged the long-standing interpretation of the uniformity statute prohibiting a dual system of elections. "Historically … laws (affecting election administration, practices or procedures) have not taken effect in any county until after preclearance or approval, since election laws must be implemented uniformly throughout the state."

Nevertheless, the Scott administration, setting aside law and precedent, has implemented two different sets of election laws.

The eyes of the world will be on Florida this November. We are a key swing state. Once again we may determine who will be president. If the courts don't soon resolve the lawsuits challenging the Scott administration's shenanigans with election law and the rights of voters, confusion, disarray and disfranchisement may once again be on display.

Howard Simon is the executive director of the American Civil Liberties Union of Florida.