Campaign Law — FEC

Florida Legal Case Could Complicate Presidential Primary

Another election-law nightmare scenario brewing in the hanging chad state?

Florida Gov. Rick Scott's election law changes could set off a presidential primary mess, possibly inviting parallels to the 2000 election.
Robert King/Newsmakers
Matt Loeb
Add to Briefcase
Matt Loeb
Sept. 28, 2011, 2:09 p.m.

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.

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.

What We're Following See More »
AND POLICE OFFICERS IN EVERY SCHOOL
Gov. Scott Wants to Raise Gun-Purchase Age to 21
1 hours ago
THE LATEST
SAYS WE NEED “OFFENSIVE CAPABILITIES” AT SCHOOLS
Trump Wants Concealed Carry at Schools
2 hours ago
THE DETAILS

At the 2018 Conservative Political Action Conference, Trump announced his support for allowing teachers to carry concealed firearms at schools. "Why do we protect our airports, our banks, our government buildings, but not our schools?" Trump asked the audience. "It's time to make our schools a much harder target ...When we declare our schools to be gun free zones, it just puts our students in far more danger." Trump said that roughly "10 or 20 percent" of teachers were very adept with guns, and that "a teacher would have shot the hell out of him [the shooter] before he knew what happened. They love their students, folks, remember that."

Source:
IN THE WAKE OF NEW CHARGES
Gates Expected to Plead Guilty, Cooperate with Mueller
2 hours ago
THE LATEST

Former Trump campaign adviser Rick Gates is expected to plead guilty to a raft of new tax and fraud charges filed against him by special counsel Robert Mueller on Thursday. Gates is expected to cooperate with Mueller's investigation.

Source:
IMPLICATES DOZENS OF TOP SCHOOLS
Sweeping Federal Probe Reveals Underground NCAA Economy
3 hours ago
THE DETAILS

Documents from a federal corruption investigation into the "underbelly of college basketball" detail an extensive recruiting operation implicating at least 20 Division I basketball programs, including Duke, North Carolina, Texas, Kentucky, Michigan State, USC, and Alabama. "The documents ... link some of the sport’s biggest current stars to specific potential extra benefits for either the athletes or their family members. The amounts tied to players in the case range from basic meals to tens of thousands of dollars." NCAA president Mark Emmert said the allegations, if true, "point to systematic failures that must be fixed and fixed now if we want college sports in America."

Source:
TENSIONS RISE AS OLYMPICS NEAR END
Trump To Announce New Sanctions Against North Korea
3 hours ago
THE LATEST

Donald Trump is expected to announce a new round of sanctions against North Korea during his speech at the Conservative Political Action Conference, or CPAC, later this morning. The Treasury Department "will get into the details later in the day," although a senior administration official called the new penalties "'the largest package of new sanctions against the North Korea regime.'" Pence blasted North Korea in his speech to CPAC, calling Kim Jong Un's sister Kim Jo Yong, who reportedly pulled out of a meeting with him at the Olympics, “a central pillar of the most tyrannical and oppressive regime on the planet.”

Source:
×
×

Welcome to National Journal!

You are currently accessing National Journal from IP access. Please login to access this feature. If you have any questions, please contact your Dedicated Advisor.

Login