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
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.

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