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Florida’s 2011 law cutting back early voting days discriminates against black voters and should be thrown out, a lawyer for opponents of the measure said at a hearing.
The law cut early voting from 14 to eight days and removed the Sunday before the Nov. 6 election as a voting day. U.S. Representative Corrine Brown, along with the Democratic Party of Duval County and the Southern Christian Leadership Conference, sued in July in Jacksonville to have the prior law reinstated.
Barring voting on the final Sunday before election day is “discriminatory and unlawful” under the Voting Rights Act, Neil Henrichsen, Brown’s attorney, argued at a hearing today before U.S. District Judge Timothy Corrigan, where opponents are seeking to stop enforcement of the 2011 law. “Once you give that right, it is a protected right.”
“I’m not sure what, even if you identify some wrong, what the remedy is,” Corrigan said at the hearing. “It seems that the old law isn’t what you wanted either.”
Brown and other opponents of the law haven’t shown an intent to discriminate or lessened voting opportunity, George Meros Jr., an attorney for the state, said at the hearing. Changing the rules this close to the election would “create confusion,” he said.
Corrigan, who was appointed to the bench by Republican President George W. Bush, didn’t issue an immediate decision. He said he would rule quickly.
“My decision will be as succinct as I can make it,” he said today. Whatever he decides, it probably will be appealed, he said.
Brown and the other opponents contended in court papers that since Florida began early voting in 2004, “African American voters have disproportionately taken advantage” of it. “Sunday voting the last weekend before Election Day has enabled access” for these voters, they said.
The state said in court papers that the new hours don’t discriminate and provide more voter access on weekends.
“Florida law affords ample opportunities to vote: eight days of in-person early voting, no-excuse absentee voting and Election Day voting,” the state said in written arguments. “Because plaintiffs have not alleged -- and cannot show -- that the early-voting law will prevent them from voting, there is no irreparable harm.”
The lawsuit is among multiple court battles over voting rules, particularly in states including Florida, Ohio, Pennsylvania and Wisconsin, where both Republican and Democratic presidential campaigns see possible victories.
Voter cases are also under way in Alabama, South Carolina, Tennessee and Texas. In Pennsylvania, the state Supreme Court set aside for further review a ruling allowing the state to enforce a law requiring voters to have photo identification, which the American Civil Liberties Union has argued was aimed at keeping likely Democratic voters away from the polls.
Ohio officials appealed a federal judge’s order to reinstate equal early-voting hours for everyone. The decision by U.S. District Judge Peter Economus last month came in a lawsuit challenging a new state law allowing Ohioans in the military and living overseas the right to cast ballots until the day before the election, while ending voting for others four days earlier.
Lawsuits filed over Florida voting rules include at least two challenging a law ostensibly designed to purge noncitizens from voter lists, which opponents say would disenfranchise new citizens as well.
A federal judge last month blocked implementation of a new Florida law restricting voter-registration activities.
The state sued the U.S. last year seeking approval of the new early-voting hours under the federal Voting Rights Act. The act requires “preclearance” of changes that affect five Florida counties. A three-judge panel in August denied preclearance, finding that the new hours would adversely affect black voters.
The state revised the rules for these counties, providing for 96 hours over eight days, and the federal government granted preclearance last week. Under the prior rules, each county’s supervisor of elections had the discretion to offer six to 12 hours on each of the eight days. The U.S. said it would ask the state to dismiss the lawsuit.
Brown and other opponents of the 2011 law are asking that residents of other counties be given the same access. Brown was joined in the lawsuit by individual plaintiffs as well as the Democratic Party and the Southern Christian Leadership Conference.
“We rely heavily on the ruling in the preclearance suit,” Mike Collins, Brown’s legal counsel, said in a phone interview.
Corrigan asked today whether the parties could settle the lawsuit, using the formula in the agreement with the U.S. over the five counties.
The secretary of state “doesn’t have the authority,” under the current law to do that, Meros, Florida’s attorney said at the hearing. “The secretary of state believes the new early voting is a better solution for Florida.”
Florida’s original early voting was spurred by difficulties of access in the 2000 presidential election, “which resulted in the disenfranchisement of thousands of qualified voters in the state of Florida, an effect which fell most heavily upon African American voters,” according to the lawsuit.
Then-Texas Governor George W. Bush’s 537-vote victory in Florida, as determined by the U.S. Supreme Court, over Vice President Al Gore in the 2000 presidential election won the White House for Bush, a Republican.
Black voters began using early voting at a rate double those of whites, according to the lawsuit. Black churches organized “souls to the polls” drives to transport congregants to early-voting sites on the Sunday before Election Day, Brown’s lawyers said.
The Sunday voting drive was “crucial to African American voters who work six days a week and/or have inflexible working hours during the work week,” the lawyers said, citing a statement by plaintiff Ingrid Fluellen.
Democrat Barack Obama won Florida in 2008 over Republican John McCain by 2.8 percentage points.
The plaintiffs claim that the early-voting law was changed to restrict access of black voters, Hispanics, the elderly and college students.
During debate over the changes, Republican State Senator Mike Bennett said “he did not want to make it easier for people to vote, but rather that it should be harder to vote -- as it is in Africa,” Brown’s lawyers said in court papers.
Lawyers for the state said the Justice Department’s granting preclearance last week shows that the new hours “were not enacted with any discriminatory purpose and will not be retrogressive.”
The new law increased access to Sunday voting in Florida, the state said. Under the prior law, counties were required to offer eight early-voting hours for each of the two weekends prior to the election.
“The vast majority of counties exercised this discretion by scheduling weekend early voting on Saturdays,” the state said. “During the 2008 primary and general elections, only 12 of 67 counties offered Sunday early voting, and, of these, only six offered early voting on the last Sunday before election.”
The new law requires all counties to provide early voting on one Sunday and two Saturdays for six to 12 hours each day, the state said.
Allowing early voting “too close to election day” brought logistical problems, leading to barring voting on the final Sunday, the state said.
The Republican Party joined in the opposition to the injunction, arguing in court papers that it would be harmed by a change in rules so close to the November election.
Granting an injunction would disrupt the ability of the party “to effectively participate in the general election after having made plans in reliance on a state law that has been in effect for more than a year,” lawyers for Republican units in Broward, Sarasota and Clay counties said in a Sept. 14 filing.
The case is Brown v. Detzner, 12-cv-00852, U.S. District Court, Middle District of Florida (Jacksonville).
To contact the reporters on this story: Margaret Cronin Fisk in Detroit at firstname.lastname@example.org Melissa Blye in Jacksonville, Florida federal court, at email@example.com
To contact the editor responsible for this story: Michael Hytha at firstname.lastname@example.org