Man Bites Dog: DOJ Doesn’t Rubber-Stamp Discriminatory Florida Laws

Last week, the Department of Justice demanded more information from Florida about changes the state made to its voting rules before approving, or “preclearing,” the law. This move was an all-too-rare exercise of the DOJ’s responsibility to enforce the nation’s premiere civil rights law, the Voting Rights Act, which requires certain states and counties to submit changes in election law to the Department for approval. Those states and counties are usually those with a history of discrimination; five Florida counties are covered (Collier, Hardee, Hendry, Hillsborough, and Monroe), so statewide changes need to be approved by the Department.

States are required to prove that the changes they make will not have a “retrogressive” effect on minority voting rights-that is, that they will leave minority voters no worse off than they would have been without the change. After states make their submission, the DOJ has sixty days to preclear the law, object to it, or ask for more information. The DOJ’s letter will trigger another sixty-day period to preclear or object to the law, running right up to December 29-a few days before the new law is scheduled to go into effect on January 1.

One of the many criticisms of the Bush era DOJ is its failure to aggressively enforce the Voting Rights Act and its gutting of the Voting Rights Section, the division that enforces the Act. Career attorneys have quit in droves, and political appointees have driven through state laws that likely would never have been precleared in an earlier era-most notably, Georgia’s photo ID law. So this demand for more information is unexpected-but entirely welcome.

Last year, Florida passed an omnibus election bill with two headline-generating changes: moving the presidential primary up to January and banning touch-screen voting machines. But buried in the fine print of the bill were four changes that had the potential to disenfranchise voters, especially low-income or minority voters — an all-too-frequent occurrence in Florida.

The four changes were (1) limiting the kinds of ID voters can show; (2) limiting the amount of time a voter has to correct certain information on their voter registration form; (3) limiting the amount of time a voter has to show evidence that their provisional ballot should be counted; and (4) making substantial changes to the state’s third-party voter registration law following a federal court’s striking down the law as unconstitutional.

The Brennan Center, which is counsel for plaintiffs in League of Women Voters of Florida v. Browning, the case involving the third-party voter registration law, and in NAACP of Florida v. Browning, a second case which involves the change made to a voter’s ability to correct information on their form, had submitted comments encouraging the DOJ to object to the third-party provisions. The third-party voter registration law, originally passed by Florida in 2005, restricts voter registration drives like those run by the League of Women Voters, labor unions, and community organizers, through a system of heavy fines and tight deadlines. The law shut down a lot of voter registration groups, including the League, in 2006 until it was struck down by a federal court. That means fewer voters get on the rolls-and those voters are much more likely to be racial or language minorities protected by the Voting Rights Act.

Using census data, we showed in our submission to the DOJ that black and Hispanic voters and voters from Spanish-speaking households are twice as likely as white voters and voters from English-speaking households to register through voter registration drives. So shutting down, or even just limiting voter registration drives, is likely to have a disproportionate effect on minority voters. We’re delighted the DOJ recognized that their request for more information from Florida includes a request for information on how voters of different races in the five covered counties register to vote, which looks like a direct response to our comments.

It remains to be seen what the state submits to the DOJ-it’s quite hard to get county level data on how people register, as the census data that’s usually relied upon is not reliable below the state level. But the state bears the burden of demonstrating its law is not retrogressive, so we hope that if Florida can’t supply the county-level data, the DOJ will do its job and object to this law. We’ll see if the man will bite the dog again.