As Florida appears poised to leapfrog the GOP’s presidential primary calendar, some legal experts are raising the prospect of an election-law nightmare in a state that has already introduced the phrase "hanging chads" into the national lexicon.
What is shaping up as a crucial contest for the Republican presidential field could also be a legally fraught one because of decisions by two of the state’s top GOP officials: Gov. Rick Scott’s support for an election law overhaul this spring that significantly tightens restrictions on voting, and Secretary of State Kurt Browning’s request for review by the federal courts rather than the Justice Department.
(RELATED: Florida Expects to Hold Primary on Jan. 31)
The end result, some legal experts warn, could be a convoluted two-tier contest, with different rules for voting in different Florida counties.
At issue is a law that Scott signed earlier this year making significant changes in the Sunshine State’s voting procedures. Among other things, the new law would shorten the period for early voting from 14 days to eight days; require voters who change their county of residence at the polls to cast a provisional ballot; and restrict third-party voter-registration drives and citizen initiative petition drives.
The Department of Justice or a federal district court must pre-clear any election law change in five Florida counties, including populous Hillsborough County, where Tampa is located, because of their history of discriminatory voting practices. These five counties are covered under Section 5 of the 1965 Voting Rights Act.
In order to avoid a potential veto by a Democratic Justice Department, Browning sought what he considered a more favorable venue: the federal district court. But because the court, unlike Justice, is under no deadline to make a ruling, it could take months to resolve the case’s complexities. That puts the legal controversy on a collision course with what appears to be the changing political reality: Florida lawmakers’ plans to move next year’s presidential primary from March to January.
If the court doesn’t rule in time, Florida would employ a bifurcated system primary that would almost certainly raise questions about the fairness of the state’s election system and legitimacy of the results.
Of Florida’s 67 counties, 62 would operate under Scott's more restrictive election law guidelines while the five counties under the Voting Rights Act—including the cities of Tampa, Naples, and Key West—would follow the earlier set of election rules as they await judicial preclearance.
Under this fractured system, a Tampa native who recently moved to neighboring St. Petersburg in Pinellas County would have to file a provisional ballot—and that could lead to some voters being disenfranchised, civil-rights advocates argue. Provisional ballots are excluded at a much higher rate than the typical ballot. Derek Newton, ACLU Florida's communications director, said 50 percent of provisional ballots are excluded in Florida elections.
The divergent rules could also be exploited in favor of a particular candidate: Scott's bill shortens the early voting period and prohibits early voting on Sundays. But these rules would not apply in Hillsborough County or other Section 5 counties. A Republican candidate who is running well in Hillsborough County could capitalize on the more lenient voting provisions to gain a sizable advantage.
Such a scenario is a near certainty, the ACLU’s Newton believes. He predicts it will take at least six months and up to a year for the federal district court to rule on Florida election law because of the case’s nuances and the number of parties to it.
The history of previous federal district court cases involving the Voting Rights Act supports Newton's suggested timetable. The state of Georgia sought federal district court preclearance over the 1973 Voting Rights Act on Nov. 11, 2010. The district did not close the case until March 31, 2011—nearly a five-month period. Similarly, North Carolina waited four months for the federal district court to resolve a contested voting-rights issue.
Neither of those cases featured the jockeying that has already defined the Florida case. According to the case docket, the judicial panel hasn’t touched the substantive legal issues since the state filed on Aug. 1.
Even so, the 10-person committee determining the date of Florida’s presidential primary seems unfazed at the likelihood of a drawn-out judicial process. “What’s pending in D.C. won’t impact our discussion about the primary date,” said Chris Cate, spokesman for the Florida secretary of state’s office. “Our expectation is that the proposals will ultimately be approved by the federal district court.”
Cate said Florida is adamant about “play[ing] a prominent role” in the presidential primary contest and is well-positioned to become the fifth state in the nominating process. He said election officials are prepared to hold the state’s primary as early as Jan. 3—two months ahead of the scheduled March date.
The federal district court is well aware that Florida has a presidential primary next year and will accelerate its decision, Cate predicted. “There is no reason the case shouldn’t be decided before the presidential primary.”
Attorneys representing the state of Florida are expected to file a motion to expedite, but the federal district court is under no obligation to comply.