An excerpt of the letter is available below.
Download the full letter here.
Download attachments to the letter here.
July 15, 2011
Chris Herren
Chief, Voting Section
Civil Rights Division
Room 7254 – NWB
U.S. Department of Justice
1800 G St., N.W.
Washington, DC 20006
RE: Comment Under Section 5, Submission No. 2011–2187
Dear Mr. Herren:
I. Introduction and Summary
The League of Women Voters of Florida, Democracia USA, the Brennan Center for Justice, and the Lawyers’ Committee for Civil Rights Under Law hereby submit this letter opposing preclearance of three sets of provisions of a new Florida law, H.B. 1355 (2011), which dramatically impact the State’s voter registration and voting processes. All four organizations are non-partisan, non-profit entities that work to expand and protect voting rights in Florida and across the United States.
The voting changes which we address in this letter are the following: 1) a panoply of burdensome and wholly unnecessary restrictions on the opportunity and ability of individual citizens and grassroots organizations to conduct voter registration drives; 2) a reduction in the number of days during which early voting will be conducted, and a possible concomitant reduction in the number of early voting hours; and 3) a limitation on registered voters’ existing opportunity to vote when they move between Florida counties and do not re-register to vote in their new county.
The available data indicate that these changes will disproportionately and negatively impact the voting rights of minority citizens in the covered counties. Despite this, and despite the fact that H.B. 1355 was strongly opposed by minority leaders during its consideration by the Florida Legislature, the State has failed to include any data or other evidence in its preclearance submission to demonstrate that the changes will not have an impermissible retrogressive effect and were not impermissibly motivated by a discriminatory purpose.
Accordingly, the Department of Justice, should not grant Section 5 preclearance to these voting changes. In particular, the evidence with regard to the third-party voter registration changes, discussed herein, is so overwhelming in demonstrating their retrogressive effect that the Justice Department should interpose an objection to these changes now, without sending the State a written request for additional information pursuant to 28 C.F.R. § 51.37. With regard to the other changes addressed in this comment letter, while the State has not met its burden under Section 5, it would be appropriate to send a “more information” request, which would be in accord with the Department’s frequent practice when controversial changes are submitted for preclearance and the submitting authority fails to provide adequate information regarding the purpose and effect of the changes.[1]
II. Overview of the Covered Counties
Five of Florida’s 67 counties are covered by Section 5: Collier, Hardee, Hendry, Hillsborough, and Monroe. Hillsborough is by far the largest of the counties in population, constituting 73 percent of the citizen voting age population (“CVAP”) of the combined counties according to the 2010 Census.[2]
The CVAP of the five counties combined (2010 Census) is 12.0 percent black (non-Hispanic, “black alone”) and 15.2 percent Hispanic. The CVAP data for the individual counties are as follows:
County | Total CVAP | White Alone | Black Alone | Hispanic |
All Covered Counties, Combined | 1,091,365 | 69.9% | 12.0% | 15.2% |
Collier | 205,090 | 85.1% | 3.1% | 10.4% |
Hardee | 16,765 | 64.8% | 10.3% | 22.6% |
Hendry | 19,570 | 58.0% | 16.6% | 23.1% |
Hillsborough | 794,060 | 65.6% | 14.8% | 16.2% |
Monroe | 55,880 | 81.3% | 3.8% | 13.2% |
III. Florida Seeks to Severely Restrict the Ability of Individual Citizens and Citizen Groups to Conduct Voter Registration Outreach and Voter Registration Drives
Section 4 of H.B. 1355 enacts highly intrusive, burdensome, and unnecessary restrictions on the ability of individual citizens and citizen groups to conduct voter registration outreach and voter registration drives in Florida, including in the five covered counties. The new requirements are unique, both in terms of how Florida law addresses other similar grassroots election activities and how other covered and partially covered states address citizen voter registration efforts. Florida only recently adopted less restrictive provisions which provide more than adequate assurance that citizen registration efforts are properly conducted, and yet the State now is seeking to impose new and more extreme burdens on citizen voter registration efforts without any evidence to suggest that the existing provisions are inadequate in any way. Minority voters disproportionately rely on third-party registration drives, and the new restrictions will significantly reduce this activity. Finally, the State has not provided any data to support preclearance, has not provided any specific justifications for the new requirements, and has adopted emergency regulations and forms to further define and implement the new statutory provisions but has not submitted these related changes for preclearance.
For all these reasons, Florida has not met its burden of showing the absence of retrogressive effect and discriminatory purpose. The evidence relating to the submitted changes is so compelling that the Justice Department should immediately interpose a Section 5 objection. Alternatively, the Department may request additional information, or consider whether it would be appropriate to issue a “no determination” letter based on the lack of submission of the changes encompassed in the emergency regulations and forms (28 C.F.R. § 51.22(a)(2)).[3]
A. Proposed Changes
The changes enacted by Section 4 are numerous and onerous. Given the breadth of the enacted changes, it is important to begin by identifying their full scope. Also, as discussed below, the State’s submission misidentifies several of the voter registration changes in its section-by-section analysis of the submitted legislation contained in Exhibit E to the submission.
The enacted changes are as follows:
1. The new law mandates that every “third-party voter registration organization” register with the state before “engaging in any voter registration activities.”[4] This mandate applies broadly to a wide variety of efforts by individuals to ask or help another individual register to vote, whether the voter registration effort is being undertaken by a single citizen acting alone to help one other person, an ad hoc volunteer citizens group (e.g., a student group that sets up a registration table on campus), a more established citizens group, or a political party. This is because, under current law, a “third-party voter registration organization” includes “any person, entity, or organization” and applies to any person or organization that is “soliciting or collecting voter registration applications.” Fla. Stat. § 97.021(37) (emphasis added).[5]
Contrary to what the State advises in Exhibit E to its submission, no such state pre-registration mandate currently exists. As Exhibit E notes, the current statute does include a pre-registration provision. However, Exhibit E fails to note that the current statute also expressly specifies that there are no penalties for noncompliance; instead, the statute merely encourages pre-registration by reducing the fines that can be assessed against those who pre-register.[6] The bottom line, therefore, is that compliance currently is optional. The new statute deletes this “no penalty” provision, and creates, for the first time, an onerous and mandatory pre-registration process for all individuals and organizations engaged in voter registration activity.[7]
2. The new law mandates that, before conducting any voter registration activities, each “third-party voter registration organization” must inform the State of the name of each and every individual who will conduct voter registration on its behalf or in association with it (referred to as “registration agents”), and must provide the temporary and permanent addresses for each such individual. No such requirement exists currently.
3. The new law mandates that, before conducting voter registration, each “third-party voter registration organization” must submit a sworn statement from each “registration agent” in which the individual declares that he or she “will obey all state laws and rules regarding the registration of voters.” This statement must be made on a form provided by the State that also lists the “penalties for false registration.” No such requirement exists currently.
4. The new law provides that “registration agents” include both persons who are employed by a “third-party voter registration organization” and persons who simply volunteer with such an “organization.”
5. The new law mandates that the Florida Division of Elections adopt rules requiring that each “third-party voter registration organization” “account [to the State] for all state and federal registration forms used by their registration agents.”
Contrary to what the State advises in Exhibit E to its submission, no mandatory reporting requirement exists currently. Exhibit E correctly notes that the current statute nominally provides for quarterly reporting by “third-party voter registration organizations” regarding voter registration drives conducted during the previous quarter. However, what Exhibit E fails to note is that, as is the case with the existing pre-registration provision, such reporting is optional; there is no penalty for non-compliance.
6. Each “third-party voter registration organization” must deliver to election officials each and every completed voter registration application that it collects “within 48 hours after the applicant completes it or the next business day if the appropriate office is closed for that 48-hour period.” The only exception is if the “organization” can show that noncompliance occurred because of “force majeure or impossibility of performance.”
Currently, completed registration applications simply must be delivered “promptly,” and fines may be assessed for applications turned in more than ten days after receipt. While the current law requires the Secretary of State to waive any applicable fines after a showing of force majeure or impossibility of performance, H.B. 1355 only provides that the Secretary “may” waive fines after such a showing.
7. The new law requires Florida election officials to assign a registration number to each “third-party voter registration organization,” include that number on every blank registration form provided to such “organizations,” and establish a data base to track “the voter registration forms assigned to [each] third-party voter registration organization.”
8. The Florida Attorney General is granted new authority to sue to enforce the registration restrictions or to enjoin any voter registration activity not in conformance with H.B. 1355, and the Florida Division of Elections must further “adopt rules to ensure the integrity of the registration process” (current law provides that the Division may “adopt rules to administer this [statutory] section”).[8]
B. The Emergency Regulations and Forms
In order to implement the new statute, the Florida Secretary of State, on May 20, 2011, issued emergency regulations that amend existing regulations concerning “third-party voter registration organizations” (see Attachment A to this letter). The amendments further define the nature and scope of the statutory changes, and also adopt regulatory forms to be used by these “organizations” and their registration agents. The additional provisions and forms have not been submitted for preclearance, although they clearly are directly related to the submitted changes. These provisions further exacerbate the intrusive, burdensome, and unnecessary provisions of the submitted statute. The Secretary of State has recently issued proposed regulations that will supersede the emergency regulations, if adopted (see Attachment B to this letter).[9]
The additional requirements set forth in the emergency regulations include, but are not limited to, the following:
1. Each “third-party voter registration organization” (or its agents) must print, on each completed voter registration form that it collects, the date and precise time at which the individual completed the registration application.[10] Election officials also must record the date and precise time at which each completed application is received from an “organization.” This strongly suggests that Florida intends to strictly enforce the 48-hour turnaround requirement, down to the exact minute. Among other things, that interpretation would effectively prohibit “third-party voter registration organizations” from submitting completed voter registration applications by mail.
2. Each “third-party voter registration organization” must ensure that its identification number is listed on each completed registration application that it turns in to election officials. Federal registration forms used by the “organization” are not excluded.[11]
3. Each “third-party voter registration organization” must submit to the Secretary of State an “accounting” of registration applications once every month (on one of the new forms promulgated by the Secretary). The regulations specify that each “organization” must “report . . . the number of state and federal voter registration application forms provided to and received from each of its registration agents for the preceding month.” This applies to all registration application forms used by the “third party voter registration organization,” including publicly-available state and federal registration forms, and forms that are simply distributed to citizens but not collected by the “organization.” Moreover, the new reporting form promulgated by the Secretary of State specifies that each “organization” not only must report the number of completed registration applications received from its registration agents during the prior month, but also must report the number of application forms that the “organization” provided to its registration agents which were not completed by citizens during the prior month. County election officials must, daily, provide the state Division of Elections with reports that “record the number of voter registration applications they provide to, and receive from, each organization.”[12]
4. The requirements that apply to “registration agents” apply to persons who only “solicit” registration applications as well as to persons who collect completed applications.[13]
5. The Secretary of State has promulgated the form that each registration agent must complete and which the “third-party voter registration organization” must electronically submit to the State (see Attachment C to this letter). The form must be sworn to or affirmed in front of a notary public. The form recounts that “penalties for false registration may include a term of imprisonment up to 5 years and a fine up to 5,000 [sic] . . . Subsequent convictions may result in greater penalties. False registration offenses include, but are not limited to, offenses constituting a felony of the third degree . . . .” Each registration agent must sign and submit the notarized form before engaging in any voter registration activity.[14]
6. If, after pre-registering with the State, a “third-party voter registration organization” engages additional individuals to conduct voter registration, the emergency regulations require that sworn statements from these individuals be submitted to the State before the agents may begin registering voters.[15]
7. Each “third-party voter registration organization must report to the Division of Elections “any change in information previously submitted.” Thus, for example, if an existing “registration agent” should change his or her temporary or permanent address from the addresses listed on the sworn statement submitted to the Secretary of State, the organization must report the new address to the Secretary. Also, when an individual ends his or her participation in soliciting or collecting registration applications for a “third-party voter registration organization,” the “organization” must inform the Secretary of State of that change.[16]
8. When an individual stops working or volunteering as a registration agent, the “organization” must obtain from that individual all of the state and federal registration applications that the agent has in his or her possession.
C. The Submitted Changes Are Unprecedented in Nature and Scope
The restrictions that Florida seeks to impose on voter registration efforts by individual citizens and citizen groups are unprecedented in their nature and scope, both in terms of Florida’s regulation of other similar grassroots election activity and the extent to which other Section 5 states seek to regulate citizen registration efforts.
1. Florida law.
Florida does not regulate the activities of individuals who gather citizen signatures on other documents that have legal significance in the election process. Specifically, Florida does not regulate the process by which citizens collect candidate qualification signatures, Fla. Stat. § 99.095, or the process by which citizens collect initiative petition signatures, Fla. Stat. § 100.371. Likewise, Florida does not, in any other context, regulate the simple act of Florida citizens soliciting other citizens to participate in the State’s democratic processes.
2. Other covered and partially covered States.
No other State covered by Section 5 of the Voting Rights Act has enacted restrictions on citizen registration efforts that approximate what Florida is seeking to implement. Most do not regulate such activity at all. A few provide a deadline for turning in voter registration applications after receipt, but even these States (with the arguable exception of Texas) do not seek to impose any comprehensive regulation on third-party registration efforts.
The provisions in place in other covered jurisdictions are as follows:[17]
- Alabama: The Secretary of State must make voter registration forms available for use in registration drives, and there are no specific restrictions that apply to third-party voter registration efforts.[18]
- Alaska: Citizen voter registration efforts are not regulated. (Alaska separately has a system whereby an individual may become a registration official, who then is able to officially accept and register persons to vote, rather than only transmitting completed forms to officials who make the registration determination.)
- Arizona: County registrars “may provide voter registration forms in quantity to groups and individuals that request forms for conducting voter registration drives.”[19] There are no restrictions on third-party voter registration activity.
- California: Persons collecting voter registration applications must complete a registration receipt with their address and telephone number and give it to the voter.[20] Voter registration applications must be turned in or mailed within three days of receipt, excluding all weekends and holidays.[21] Any person paid to collect voter registrations must list their name, telephone number, and address, and the name and telephone number of their employer, and affix their signature, on each registration card they collect.[22] Individuals or organizations that compensate others to collect voter registration applications are required to retain for three years, and provide on demand: the name, address, and telephone number of each of their employees and a signed acknowledgement of each employee’s receipt of a statement describing their duties under the law.[23]
- Georgia: Third parties engaged in voter registration must inform applicants about basic voter registration information and deadlines.[24] Completed voter registration forms must be sealed before a third party collects them, unless an applicant gives written consent to the third party to view and copy the information on the form.[25] Voter registration applications must be turned in within 10 days of the date of signature, or within three days during the last two weeks of the registration period.[26]
- Louisiana: Failure of a third party to submit to the parish registrar of voters a completed registration application collected through a registration drive within thirty days of receipt of the completed application is a violation of Louisiana election laws.[27] There are no other restrictions that apply to third-party voter registration.
- Mississippi: The Secretary of State is required to send bulk quantities of mail-in voter registration applications to any person or organization who requests them and charge the requesting entity the actual cost incurred in providing bulk quantities.[28] There are no other provisions in the Mississippi Election Code restricting or otherwise regulating third-party registration.
- New York: New York has no restrictions specific to third-party voter registration.
- North Carolina: The State Board of Elections must make voter registration forms available for distribution through governmental and private entities, with particular emphasis on making them available for organized voter registration drives.[29] No restrictions are placed on third-party registration drives.
- South Carolina: South Carolina does not have any statutory provisions or guidelines restricting third-party registration.
- Texas: While Texas does not seek to regulate the simple solicitation of voter registration applications, it does provide that, in order to accept and submit another’s voter registration application, an individual must be a “deputy registrar.”[30] Eligible voters may request appointment as deputy registrars, and that request shall not be denied if an individual is eligible. The appointment is made after the individual executes an oath, and per a recently-passed law that goes into effect in September of 2011, undergoes training.[31] A volunteer deputy registrar may distribute voter registration application forms throughout the county and receive registration applications submitted to the deputy in person. All voter registration forms must be turned in to county registrars within 5 days of receiving them from the voter, and a deputy registrar must provide each voter with a signed receipt indicating the date that the deputy registrar accepted the voter’s registration form.
- Virginia: The only restriction is that a voter registration application must generally be turned in within 15 days of its date of signature.[32]
D. Recent History of Third-Party Voter Registration Enactments by Florida
The 2011 restrictions on citizen voter registration efforts are the most recent iteration of Florida’s ongoing effort to significantly curtail the ability and opportunity of individual citizens and citizen groups to conduct voter registration activities. In 2005, the Florida Legislature passed a law that imposed heavy fines on “third-party voter registration organizations” for turning in completed voter registration applications more than 10 days after receiving them, or after an election’s book closing. In 2006, the Brennan Center commenced litigation against the law on behalf of the League of Women Voters and other organizations, resulting in the law being enjoined by a federal district court for violating third-party voter registration organizations’ First Amendment rights of free speech and free association.[33] The court noted that the heavy fines would have a chilling effect on the willingness of such organizations to register new voters.[34]
The Florida Legislature subsequently passed a revised version of the law that became effective in 2008, and which is the law that is in effect currently. The revised law was upheld in federal court.[35] It maintained the 10-day turnaround deadline but imposed significantly lower fines on third-party voter registration organizations than the prior law, added an annual cap of $1,000 on the amount of fines that can be levied on an organization or any of its affiliates, removes an exception for political parties that was contained in the original law, and provides that fines “shall” be waived if an organization can show that timely delivery of the forms was impossible.
These restrictions appear to be accompanied by a dramatic decline in third-party voter registration activity. Florida’s voter registration rates have dropped by approximately 25 percent between 2006 and 2010.[36]
E. Minority Voters’ Reliance on Third-Party Voter Registration Drives
It is generally recognized that minority voters disproportionately rely on third-party registration drives. Those without access to the Internet and those who do not own a car (and thus do not use the Department of Motor Vehicles to register to vote) are less able to register through means other than voter registration drives. Absent the third-party voter registration efforts, many of these voters will either not register or will complete their registration applications improperly.
In Florida, U.S. Census Bureau data from the 2004 and 2008 election cycles show that both African-Americans and Hispanics rely more than white voters on third-party registration drives, and that, indeed, minority reliance on such drives in greater in Florida than elsewhere in the country. Specifically, African-American and Hispanic citizens in Florida are more than twice as likely to register to vote through private drives as white voters. In 2004, while 6.6 percent of non-Hispanic whites in Florida indicated they registered through private drives, 17.4 percent of African-Americans and 18.9 percent of Hispanic voters in Florida registered in this manner.[37] Similarly, in 2008, 6.3 percent of non-Hispanic white registered voters in Florida were registered through drives versus 12.7 percent of black voters and 12.1 percent of Hispanic registered voters.[38] Among those who said they voted in Florida in 2008, 6.3 percent of white voters were registered through drives, versus 11.5 percent of black voters and 11.5 percent of Hispanic voters.[39]
These data appear to be the best data available regarding the extent to which minority citizens in the five covered counties disproportionately rely on third-party voter registration efforts. The Census does not report such data by county, and it is our understanding that the five covered counties do not maintain such data. Given the pronounced statewide pattern that exists in Florida, and the fact that the pattern both tracks and exceeds the national pattern, there would seem to be little doubt that this also is what is occurring in the five covered counties. Certainly, Florida has not provided any evidence to the contrary.
Current registration rates confirm that Hispanic voters are underrepresented in terms of voter registration in the covered counties, while black voters have begun to achieve equity in voter registration rates. As noted above, the CVAP of the five counties combined (2010 Census) is 12.0 percent black (non-Hispanic, “black alone”) and 15.2 percent Hispanic. Voter registration in the five counties combined, as of the 2010 general election, is 12.2 percent black and 12.0 percent Hispanic, based on Florida residents’ self-identifications on their voter registration forms:[40]
County | White VR | Black VR | Hispanic VR |
All Combined | 72.7% | 12.2% | 12.0% |
Collier | 86.5% | 3.1% | 8.1% |
Hardee | 74.4% | 6.5% | 15.9% |
Hendry | 61.8% | 14.9% | 18.8% |
Hillsborough | 68.1% | 15.5% | 13.1% |
Monroe | 86.8% | 3.5% | 8.4% |
There is no doubt that Hispanic voters remain underrepresented on the voter rolls (15.2% of the 2010 CVAP, but only 12% of registered voters). The underrepresentation is particularly stark in Monroe County, where Hispanics make up 13.2% of the CVAP, but only 8.4% of registered voters, and Hardee County, where they are 22.6% of the CVAP, but only 15.9% of voters. Black voters are underrepresented in three of the covered counties: Hardee (10.3% of CVAP vs. 6.5% of registered voters); Hendry (16.6% of CVAP vs. 14.9% of registered voters); and Monroe (3.8% of CVAP vs. 3.5% of registered voters).
However, even in the counties where minority voter registration has achieved some parity with population figures, these numbers are undoubtedly a result, in part, of focused efforts by third-party voter registration groups to bring new and minority voters onto the rolls. H.B. 1355’s dramatic impact on third-party voter registration efforts risks eliminating a key mechanism for achieving racial equity on the voter rolls.
F. Effect of the Changes on Third-Party Registration Efforts
It appears highly likely that the restrictions on third-party voter registration activities put into place by H.B. 1355, along with the restrictions further imposed by the Secretary of State’s regulations and standard forms, will dramatically curtail, or even put a halt to, third-party voter registration efforts in Florida.
For individuals or groups that are not specifically organized to engage in voter registration drives, and want to undertake an ad hoc or a time-limited voter registration effort (e.g., efforts by a religious organization, a neighborhood group, or a student group), it clearly will be difficult and time-consuming to attempt to comply with the array of requirements imposed by the State and the level of minutia that is required. The need to pre-register with the State, have volunteers sign sworn statements which indicate that they may be subject to felony prosecution, implement the organizational control needed to satisfy the 48-hour turnaround requirement, update the state registration if any new volunteers are brought on after the initial state pre-registration, track any changes in the information previously provided to the State (even concerning volunteers’ residence addresses) and submit updates, track the number of registration forms given to each volunteer and returned by each volunteer, and obtain unused forms back from any volunteer who ceases his or her participation in the effort will likely cause many groups to conclude that conducting a legal voter registration drive is simply not possible. And, those groups that do seek to comply clearly will need to devote substantial resources to following the multitude of requirements, which in turn will necessarily limit the amount of resources they can devote to actually conducting registration drives.
The new restrictions will not be any less problematic for groups whose mission is to conduct voter registration drives. While these groups may have more organizational resources and voter registration experience than the types of groups noted above, their resources still are limited and the larger size of their voter registration efforts will make it more difficult to comply with the restrictions.
Democracia USA, a project of the National Council of La Raza, is a national, non-partisan civic engagement organization that seeks to increase the prominence and participation of Latinos in the American democratic process. Since 2004, Democracia USA has registered over 200,000 individuals in Florida alone.[41] It runs a highly structured and closely supervised voter registration effort that mostly relies on paid staff. It conducts voter registration drives door-to-door in Latino neighborhoods, at specific selected locations, and at special events (such a community festivals). Among the covered counties, it has registered a significant number of voters in Hillsborough County, including approximately 4,600 individuals in 2008 and 7,000 in 2010.
Democracia USA has conducted an extensive review of the new third-party voter registration restrictions and, based on that review, has at least temporarily suspended its voter registration efforts statewide. Democracia USA wants to be able to continue its voter registration efforts, as these efforts are a part of its core organizational mission. However, it is uncertain how it will be able to operationalize the new requirements, given their nature and breadth. Implementing the new requirements will require significantly more staff time, significantly increasing the cost to the organization of conducting voter registration drives. Thus, it appears that the restrictions, at a minimum, will have the long term effect of substantially reducing the length and number of registration drives it is able to conduct.
For example, ensuring that each of the thousands of registration applications Democracia USA historically has collected includes the date, hour, and minute at which it was signed likely will require substantial staff time, considering the fact that, historically, one office may produce up to one thousand registration applications on just one day. Democracia USA also currently subjects every registration drive to an extensive quality control process which occurs after the voter registration applications are collected. This allows the organization to flag and address incomplete registration forms, among other things. The organization is uncertain how or whether this process may be maintained in light of the 48-hour turnaround requirement, since the current process takes several days. Democracia USA also does not track the precise number of blank registration forms given to each person collecting registration forms, or the number of blank forms that each does not use in a given period of time, and so complying with these requirements will necessitate additional staff time as well. Finally, while the new form required of “registration agents” may not intimidate Democracia USA’s experienced staff, it will make it more difficult to hire new staff, who may well be deterred by the statements about possible felony prosecution.
The League of Women Voters of Florida (LWVF) is an all-volunteer, non-partisan organization that has been dedicated to registering Floridians to vote and engaging them in the political process for over 70 years.[42] LWVF has a statewide office in Tallahassee, and 29 local leagues throughout the state, including League affiliates in Collier County (established in 1975) and Hillsborough County (established in 1949). Both are active county Leagues with numerous public events at which volunteers offer voter registration opportunities. As Marilynn Wills, Second Vice President of the LWVF, noted:
The League has been registering voters in Florida since 1939. We register voters all year long and automatically tie voter registration to every non-lobbying activity. Approximately 99% of voter registration is a secondary activity to our other educational endeavors. Whether it’s a hot topic lunch, a high school event, a debate, or any other election related activity, members always have voter registration forms on hand to register voters.
Due to the passage of H.B. 1355, the LWVF’s board of directors has voted to cease all voter registration efforts by the League and its affiliates in all Florida counties, including the covered jurisdictions. On May 26, 2011, the state board issued a moratorium to all LWVF members and affiliates directing them to cease voter registration activity. As the Collier County League indicates on its website, the new law “imposes an undue burden on groups such as ours that work to register voters.” [43]
H.B. 1355 creates particular burdens on the LWVF affiliates’ all-volunteer operations. Because the law permits the state to levy a fine or institute a civil proceeding against individual registration agents in addition to the organizations they volunteer with, LWVF leaders believe these individual risks will chill their members’ participation in volunteer voter registration. Therefore, even if the LWVF’s state board were to lift the voter registration moratorium, officials with the LWVF believe that the new law will make it difficult, if not impossible, to secure volunteers for voter registration drives. According to Pam Goodman, First Vice President of LWVF, volunteers will likely be unwilling to risk the individual summons or fines permitted by H.B. 1355. “Because of the risk, they won’t register voters under this new law.” Quoting the state LWVF, the Collier County League notes that it has shut down voter registration in part to protect the LWVF’s volunteers, stating “we cannot and will not place thousands of volunteers at risk, subjecting them to a process in which one late form could result in their facing financial and civil penalties.”[44] In addition, the law’s requirements that a barrage of forms be submitted and updated electronically places massive stress on all-volunteer LWVF affiliates, which lack office space, electronic equipment, or the staff to manage the multiple electronic submissions required by H.B. 1355.
Rock the Vote is another organization that works to register new Florida voters. Rock the Vote works closely with college volunteers, and is a non-partisan, non-profit organization that focuses on registering new and young voters via both in-person voter registration activity in Florida and via its national website. “The personal delivery requirement would make it very challenging to meet the 48 hour deadline — not all volunteers have cars and not all college campuses are close to county seats,” states Thomas Bates, Vice President for Civic Engagement. He also indicates that H.B. 1355 places “a significant burden” on Rock the Vote’s ability to register and engage voters in Florida.
G. Florida Has Provided No Non-Discriminatory Justification for H.B. 1355
The legislative history of H.B. 1355 provides scant evidence of any justification for the far-reaching and onerous new requirements set forth in the law. During the legislative debates, the bill’s sponsors and supporters made numerous references to the sanctity of the voter registration process, but were unable to point to any actual evidence that the current Florida law is inadequate or that there is any record of voter registration abuses.[45]
For example, Representative Baxley, the sponsor of the bill, claimed that the reason to change from the current ten-day requirement for submitting completed registration applications to 48 hours is that voter registration forms are valued document[s] and the longer you have these documents floating around, the more likely it is for mischief and mishap. There is a responsibility that when you’ve taken someone’s registration for them to go ahead and deliver it immediately. And we have made a provision that if it’s a weekend or whatever, fine.[46]
But when asked how many forms filled out with the assistance of third party voter registration organizations are “floating around,” Baxley was unable to offer any evidence of any problem, instead replying with his own speculative question: “Who knows how many slip through the system?”[47]
Another supporter of the bill, Senator Bennett suggested that the bill does impose burdens on voters, but these burdens are justifiable. Senator Bennett was emphatic that voting and voter registration should be made more difficult under Florida law:
You say it is inconvenient. Ever read the stories about people in Africa? People in the desert who literally walk 200–300 miles so they could have an opportunity to do what we do? And we want to make it more convenient? How much more convenient do you want to make it? Want to go to their house? Take the polling booth with us? This is a hard fought privilege. This is something people died for. And you want to make it convenient? To the guy who died to give you that right, it was not convenient. Why would we make it any easier? I want ‘em to fight for it. I want ‘em to know what it’s like. I want ‘em to have to walk across town to go over and vote. I want ‘em to at least know the date of when they’re supposed to vote. I’d like them to actually know where they’re supposed to go vote. Is that too much to ask? I don’t think so. . . . This is Florida and we should count. We do make it convenient for people to vote but I gotta tell ya I wouldn’t have any problem making it harder. I would want them to really want to be informed. I would want them to really want to vote as badly as I want to vote. I want the people in the State of Florida to want to vote as bad as that person in Africa who is willing to walk 200 miles for that opportunity he’s never had before in his life. This should not be easy. This should be something you feel with a passion.[48]
Opponents of the bill, on the other hand, pointed out the very real racial impacts that H.B. 1355 is likely to have. Nothing in the legislative record of H.B. 1355 or the State of Florida’s submission to the Department of Justice contains evidence contradicting or addressing these impacts. For example, Senator Rich highlighted how she believes that the bill will limit voter access and what the true intent of HB 1355 is, stating:
Under the guise of ensuring the integrity of the election process we have another bill that puts up barriers to participating in the democratic process. Make no mistake, the supporters of this bill can cite no examples of voter fraud or provide any proof that the integrity of our election process has been compromised. . . . I have to wonder if the only problem that can be found with our electoral process is that some people didn’t like the outcome of our last presidential election or the outcome of some of our ballot initiatives…but this is no excuse to enact legislation that primarily affects the ability of people to vote who don’t tend to support the majority party.[49]
Speaking about the discriminatory impact in the context of Florida’s history of discrimination, Representative Thompson said the following during the House debate:
Florida is a covered jurisdiction under VRA of 1965 and those states or parts of states that are covered jurisdictions are placed in the VRA because they have a history of discriminatory voting practices they have a history of voter suppression they have a history of voter intimidation. I had hoped that in my lifetime I would see Florida not among those covered jurisdictions. . . . And when I look at this bill that would impose a financial penalty on groups and organizations, third parties, that are working to get people registered. I have to ask the question, are we there yet? . . . It does limit access to voting and having your vote count. . . . Florida is still covered by the VRA of 1965 because of its history so why are we making it more difficult to vote? . . . . What are we going to do with regard to getting these proposed changes cleared by the DOJ? With this bill we’re putting up more roadblocks and hampering the opportunity of people who just want the right of every American and that is the right to vote. I don’t think this is the direction that we should be taking in 2011.[50]
Finally, Representative Stafford outlined why she believes the bill has a discriminatory impact, speaking from the perspective of her own family’s recent history:
When I read this bill, I thought about my 86 year old grandmother. . . . I thought about her as I read the provisions in this bill that, in my opinion, create barriers to voting. I thought about my grandma who was born in this country but was not allowed to vote in this country until 1965 because of the color of her skin. When my grandma was finally granted the right to vote in 1965 there were barriers put in place to exercising the right to vote. I submit to you that this bill creates barriers to exercising the right to vote. . . . It is the provision in the bill that eliminates long standing rules that allow voters to change their information at their polling place and forces voters attempting to vote in a different county to use provisional ballots which often go uncounted. . . . It’s the provision in the bill that reduces from ten days to two days the time that third party groups have to submit voter registration forms to election officers or face a fifty dollar fine for each late submission. Are we now criminalizing voter registration eff