As a skeptical U.S. Supreme Court raised doubts about a central provision of the federal Voting Rights Act on Wednesday, the law’s defenders said the 2012 election provided a vivid example for why it was needed to protect Florida from voter suppression.
“Look at the performance of our governor and Legislature in the last election,’’ says Howard Simon, executive director of the ACLU of Florida whose parent organization has joined in the lawsuit to retain the law. “They are walking advertisements for why we need the Voting Rights Act.”
After the Legislature passed a sweeping elections bill in 2011, the act’s provisions required the state to get federal approval from either a federal trial court or the Justice Department before the law could take effect in Monroe, Hillsborough, Hardee, Hendry and Collier counties.
In addition to seeking the review, Gov. Rick Scott and Attorney General Pam Bondi challenged the act’s constitutionality. Former Secretary of State Kurt Browning called the provisions of the act an “arbitrary and irrational coverage formula based on data from 40 years ago that takes no account of current conditions.”
The five Florida counties have been subject to the pre-clearance requirement of Section 5 of the Voting Rights Act protections since 1975 because of a history of discrimination against language minorities. Monroe County, for example, failed to print ballots in Spanish even though the Spanish-speaking population was large enough to warrant its own ballot.
The law’s most controversial provision, passed by the Republican-led 2011 Legislature, was a plan to reduce the number of early voting days. The ACLU and other citizens groups used the pre-clearance requirements to challenge the law, arguing that the changes disproportionately affected minority voters, who rely on early voting more than white voters.
A three-judge federal court concluded the law could have the effect of cutting voting hours in half. It suggested the law could stand if the five counties would expand early voting hours each day to maintain the total number of hours they offered in the past — a remedy initially rejected by Scott and lawmakers.
All but Monroe County agreed to the change. Monroe argued that reducing early voting days was more important to maintain voter access than extending hours on fewer days.
When the federal court agreed to accept the four-county compromise, Monroe was forced to go along with the compressed schedule and the state dropped the challenge.
The result: long early voting lines in the state’s most urban counties, putting Florida’s elections laws under the national spotlight again.
“I think now the state will agree that fewer days didn’t work out,’’ said Joyce Griffin, a Democrat who has worked in the Monroe County Supervisor of Elections office for 28 years before she was elected supervisor in November. She believes the act’s pre-clearance provisions should be retained.
“I have always viewed it as an extra safeguard,’’ she said. “It gives us another layer of protection — and I was very happy to have it last year.”
If the U.S. Supreme Court throws out the pre-clearance requirement, Florida would be allowed to enact its voting laws first, while opponents would have to challenge it later, said Julie Ebenstein, staff attorney for the ACLU of Florida.
“Without the Voting Rights Act ..., the confusion and chaos regarding elections in 2012 here would have been far worse,” she said.
In the last 20 years, the Section 5 rule also has forced the state to rewrite its reapportionment maps, creating a majority-minority state Senate district in the Tampa Bay area in 1992 and requiring lawmakers to restore a Hispanic majority seat in Collier County they had planned to eliminate in 2002.
Bondi did not file a brief in the Shelby County v. Holder case, but she and other Republican state officials echoed arguments of the Alabama Attorney General in 2011 when the state challenged the law.
“I strongly support the many provisions of the Voting Rights Act that appropriately enforce the right of citizens to register and vote free from discrimination,’’ Browning said at the time. “But there is no constitutional basis to arbitrarily single out five Florida counties and a few other covered jurisdictions, based solely on information from decades ago, and subject them to procedures that don’t apply to the rest of the country.”