Controversial elections law not yet valid in Hillsborough, four other counties

05/20/11 Kate Bradshaw
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Governor Rick Scott has set off another firestorm of criticism when he signed a law yesterday that overhauls elections in Florida. The law goes into effect immediately, except in Hillsborough and four other counties in the state.

Hillsborough County was once found to have polling practices deemed racially discriminatory under Section 5 of the Voting Rights Act of 1965. Because of that, Hillsborough’s Supervisor of Elections Earl Lennard says any change to voting laws requires review before it can go into effect.

"The Department of Justice had determined, it was determined that Hillsborough County was one of those counties who might have had a discriminatory practices in the past so now any changes to the election law procedure must be pre-cleared by the Department of Justice."

Other counties exempt from HB 1355 are Collier, Hardee, Hendry, and Monroe. Lennard said state is filing a request for preclearance. The US Justice Department will then examine the law by way of administrative review.

"Division of Elections through the Secretary of State will initiate the request for pre-clearance and when they finalize their pre-clearance request package they will send it to the Department of Justice and then it's my understanding that the Department of Justice has up to 60 days to review the request for clearance."

Lennard added that his office will work closely with Florida Secretary of State Kurt Browning in providing for the clearance so the law can be implemented in the five exempt counties.

"Our position is that we want all of our voters to exercise their right to vote, all of our citizens to exercise their right to vote."

The law limits early voting, bars people who need to change registration information at the polls from casting a regular ballot, and tightens rules for groups that conduct voter registration drives. Supervisor Lennard was an enthusiastic supporter of early voting in the run-up to the mayoral elections this past March. The Department of Justice has 60 days to review the new law for anything that might discriminate by race, color, or membership in a language or minority group. Howard Simon is the Executive Director of the American Civil Liberties Union of Florida. His organization is asking the Justice Department not to grant pre-clearance because they say the law has at least one provision that stacks the cards against minority voters.

"The law, the way it was passed, if you move from county to county and you need to change your registration on election day you are going to be required to vote by a provisional ballot. That is something that is going to be seen, I'm pretty sure, by the Department of Justice as having a racially retrogressive effect requiring more minority members to vote by provisional ballot rather than a regular ballot. And where provisional ballot are sometimes not counted or there's only a 50-50 chance that they'll be counted at all."

He said if the law is deemed unacceptable in the five counties that need pre-clearance, it probably shouldn’t be acceptable in any other part of sake – for practicality’s sake alone.

"We can't have one voting system in operation in 62 counties and a different system in 5 counties so as a practical matter I don't think that if it is not pre-cleared that any of the law would end up being in effect for the entire state."

The law goes into effect just as the Miami-Dade Mayor’s race is rounding out. Sample ballots sent out for that race listed Sunday as the last day for early voting, but HB 1355 says early voting must end three days before Election Day, which is Saturday. One candidate, Republican former state legislator Marcelo Llorente, is suing the county and the state for what they is disenfranchising voters intending to cast ballots on Sunday. Llorente’s attorney is former state representative JC Planas, also a Republican. He said the Constitution bars ex post facto laws, or legislation that effectively works retroactively.

"So we sued the county and the state to stop the enforcement of this law for this election only while this election is going on. And our grounds is the election began on April 29th when the absentee ballots were mailed. Early voting started on May 9th when individuals went to go vote. Because of that nothing that Tallahassee does can effect what's already ongoing."

Planas said he looked at Section 5 of the voting rights act as a potential route for legal action, but decided against it because it would have taken too long.

"An emergency motion in federal court means they'll hear it next Tuesday and we needed immediate action."

Still, he said, Section 5 should be all the more reason for a judge to strike down the law.

"We used that as evidence on the fact that anything that affects voting rights should be reviewed by DOJ, which is even more reason why the judge should not basically apply this law to this election."

In addition to the ACLU, the League of Women Voters has threatened to file suit over the measure. US Senator Bill Nelson is urging the US Department of Justice to block the law. Assistant Attorney General Ronald Welch wrote Nelson Monday, saying he would look into the matter. Supporters say the law was intended to curb voter fraud, but detractors say there has been virtually no voter fraud in recent elections. The US Department of Justice declined our request for a taped interview.

Previous WMNF news coverage of the 2011 Legislative session

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