State of Florida v. United States of America

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
___________________________________
STATE OF FLORIDA, )
)
Plaintiff, )
)
v. ) Civil Action No. 11-1428
) Three-Judge Court
UNITED STATES OF AMERICA, et al., ) (MBG) (CKK) (ESH)
)
Defendants. )
___________________________________
Before: G ARLAND, Circuit Judge, and K OLLAR-K OTELLY and H UVELLE, District
Judges.
Opinion for the Court filed P ER C URIAM.
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P ER C URIAM: The State of Florida brings this action for declaratory relief under
section 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c. Section 5 prohibits the
enforcement of any change in voting practices or procedures in certain states and other
covered jurisdictions, including five of Florida’s counties, unless and until the change is
approved by the Attorney General of the United States or by a three-judge panel of the
United States District Court for the District of Columbia. In this three-judge district court
proceeding, Florida seeks a declaratory judgment that certain recent changes to its
election laws “neither ha[ve] the purpose nor will have the effect of denying or abridging
the right to vote on account of race or color” or membership in a language minority
group. 42 U.S.C. § 1973c(a).
Florida amended its voting laws in 2011, making some 80 sets of changes from
prior provisions. The State submitted the changes to the Attorney General for
administrative approval, and the Attorney General precleared 76 of them. Florida then
withdrew the remaining four sets of changes from its request for administrative
preclearance, and instead filed a complaint seeking judicial preclearance of those
changes. After the complaint was filed, Florida resubmitted one of the four changes
(regarding the procedures for constitutional amendments proposed by initiative) to the
Attorney General for administrative approval. Thereafter, the Attorney General
precleared that change, and Florida voluntarily dismissed that count of its complaint. One
week ago, Florida filed a motion to voluntarily withdraw another set of changes
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(regarding requirements for third-party voter registration organizations (TPROs)), and to
inform the court that it had amended several of the TPRO changes for which it still seeks
preclearance. Because this development requires a new round of briefing and review, we
will address the remaining TPRO changes at a later date.
Two categories of voting changes will be addressed in this opinion. In brief, those
changes would: (1) amend the available days and hours that Florida counties may use for
early in-person voting, see Fla. Stat. § 101.657(d) (2011); and (2) amend the voting
procedures for registered voters who move between Florida counties and seek to vote in
their new county of residence (“inter-county movers”), see id. § 101.045. The parties
have filed extensive submissions regarding the law applicable to our task of reviewing the
voting changes for purposes of preclearance. As we discuss below, Florida’s submission
urges an unconventional reading of section 5, which we largely reject. The Attorney
General, supported by more than two dozen individuals and organizations who were
permitted to intervene as defendants in this action, proffers a more traditional reading,
which we largely adopt.
The parties have also developed a voluminous evidentiary record, comprised of
over 11,000 pages of legislative hearings, deposition transcripts, expert reports, and other
exhibits.1 The parties then filed proposed findings of fact and conclusions of law on the
1
The intervenors, all of whom have an interest in these voting changes, were
permitted to participate in that expedited discovery process. The court also accepted a
modified amicus curiae brief filed by U.S. Senator Bill Nelson.
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basis of that written record. The parties agreed that the record was sufficient for the court
to reach a decision, and that live trial testimony was unnecessary. The court did,
however, hear five hours of oral argument on all aspects of the statutory preclearance
question. Thereafter, the court received supplemental briefing and submissions from the
parties on several discrete questions of law and fact.
Upon consideration of the entire record, our conclusions may be summarized as
follows. First, we conclude that we cannot, at this time, preclear Florida’s early voting
changes because the State has failed to satisfy its burden of proving that those changes
will not have a retrogressive effect on minority voters. Specifically, the State has not
proven that the changes will be nonretrogressive if the covered counties offer only the
minimum number of early voting hours that they are required to offer under the new
statute, which would constitute only half the hours required under the prior law.
Following an approach approved by the Supreme Court, however, we also conclude that
if Florida and the covered counties were to submit a preclearance plan that offered early
voting for the maximum number of hours authorized by the new statute, which would be
exactly the same number as under the prior law, and did so on a standard 7 a.m. to 7 p.m.
schedule, it is likely that Florida would be able to satisfy its burden of proving that the
overall effect of its early voting changes would be nonretrogressive. Second, we
conclude that Florida has satisfied its burden of proving that the changes to the
procedures for inter-county movers neither were enacted with a discriminatory purpose
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nor will have a retrogressive effect on minority voters, and that those changes are
therefore entitled to preclearance.
The opinion that follows summarizes our findings of fact and sets forth our
conclusions of law on the question of statutory preclearance.2 The appendix to this
opinion separately sets forth our findings of fact. See F ED. R. C IV. P. 52.
I. Background and Procedural History
A. Statutory Background
This court has been convened as a three-judge district court with jurisdiction to
hear and determine this declaratory judgment action under section 5 of the Voting Rights
Act of 1965, 42 U.S.C. § 1973c. See 28 U.S.C. § 1346(a)(2); id. §§ 2201, 2284. The Act
was enacted to protect the fundamental rights guaranteed by the Fifteenth Amendment,
and to “banish the blight of racial discrimination in voting.” South Carolina v.
Katzenbach, 383 U.S. 301, 308 (1966). Section 5 requires covered states and political
subdivisions to seek advance approval, or “preclearance,” from the Attorney General or a
three-judge district court before administering any new “voting qualification or
prerequisite to voting, or standard, practice, or procedure with respect to voting.” 42
2
Florida’s complaint also seeks alternative relief in the form of a declaratory
judgment that section 5 and section 4(b) of the Voting Rights Act are unconstitutional.
See [147] Third Am. Compl. ¶¶ 102-11. We have bifurcated the statutory preclearance
and constitutional issues, and will address the latter in the course of future proceedings in
this case.
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U.S.C. § 1973c(a). To obtain preclearance, a covered jurisdiction must show that its
proposed voting change “neither has the purpose nor will have the effect of denying or
abridging the right to vote on account of race or color, or in contravention of the
guarantees set forth in section 1973b(f)(2) of this title [proscribing voting restrictions
based on membership in a language minority group].” Id.3
3
In relevant part, section 5 provides:
(a) Whenever a State or political subdivision with respect to which the
prohibitions set forth in section 1973b(a) of this title based upon
determinations made under the first sentence of section 1973b(b) of this
title are in effect shall enact or seek to administer any voting qualification
or prerequisite to voting, or standard, practice, or procedure with respect to
voting different from that in force or effect on November 1, 1964, or
whenever a State or political subdivision with respect to which the
prohibitions set forth in section 1973b(a) of this title based upon
determinations made under the second sentence of section 1973b(b) of this
title are in effect shall enact or seek to administer any voting qualification
or prerequisite to voting, or standard, practice, or procedure with respect to
voting different from that in force or effect on November 1, 1968, or
whenever a State or political subdivision with respect to which the
prohibitions set forth in section 1973b(a) of this title based upon
determinations made under the third sentence of section 1973b(b) of this
title are in effect shall enact or seek to administer any voting qualification
or prerequisite to voting, or standard, practice, or procedure with respect to
voting different from that in force or effect on November 1, 1972, such
State or subdivision may institute an action in the United States District
Court for the District of Columbia for a declaratory judgment that such
qualification, prerequisite, standard, practice, or procedure neither has the
purpose nor will have the effect of denying or abridging the right to vote on
account of race or color, or in contravention of the guarantees set forth in
section 1973b(f)(2) of this title, and unless and until the court enters such
judgment no person shall be denied the right to vote for failure to comply
with such qualification, prerequisite, standard, practice, or procedure:
Provided, That such qualification, prerequisite, standard, practice, or
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Five of Florida’s sixty-seven counties are subject to the preclearance requirements
of section 5. They, along with a number of states and other local jurisdictions, were
subjected to section 5 coverage by the 1975 amendments to the coverage formula set forth
in section 4(b) of the Act. Section 4(b)’s coverage formula subjects jurisdictions to
section 5 preclearance obligations based on a combination of the maintenance of a
procedure may be enforced without such proceeding if the qualification,
prerequisite, standard, practice, or procedure has been submitted by the
chief legal officer or other appropriate official of such State or subdivision
to the Attorney General and the Attorney General has not interposed an
objection within sixty days after such submission, or upon good cause
shown, to facilitate an expedited approval within sixty days after such
submission, the Attorney General has affirmatively indicated that such
objection will not be made. . . . Any action under this section shall be heard
and determined by a court of three judges in accordance with the provisions
of section 2284 of Title 28 and any appeal shall lie to the Supreme Court.
(b) Any voting qualification or prerequisite to voting, or standard, practice,
or procedure with respect to voting that has the purpose of or will have the
effect of diminishing the ability of any citizens of the United States on
account of race or color, or in contravention of the guarantees set forth in
section 1973b(f)(2) of this title, to elect their preferred candidates of choice
denies or abridges the right to vote within the meaning of subsection (a) of
this section.
(c) The term “purpose” in subsections (a) and (b) of this section shall
include any discriminatory purpose.
(d) The purpose of subsection (b) of this section is to protect the ability of
such citizens to elect their preferred candidates of choice.
42 U.S.C. 1973c.
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prohibited “test or device” and low voter turnout in certain elections.4 The 1975
amendments expanded the definition of “test or device” to include “any practice or
requirement by which any State or political subdivision provided,” as of November 1,
1972, “any registration or voting notices, forms, instructions, assistance, or other
4
Section 4(b) provides, in relevant part:
The provisions of subsection (a) of this section [which, in turn, help define
those jurisdictions covered by section 5, see 42 U.S.C. § 1973c(a)] shall
apply in any State or in any political subdivision of a State which (1) the
Attorney General determines maintained on November 1, 1964, any test or
device, and with respect to which (2) the Director of the Census determines
that less than 50 per centum of the persons of voting age residing therein
were registered on November 1, 1964, or that less than 50 per centum of
such persons voted in the presidential election of November 1964. On and
after August 6, 1970, in addition to any State or political subdivision of a
State determined to be subject to subsection (a) of this section pursuant to
the previous sentence, the provisions of subsection (a) of this section shall
apply in any State or any political subdivision of a State which (i) the
Attorney General determines maintained on November 1, 1968, any test or
device, and with respect to which (ii) the Director of the Census determines
that less than 50 per centum of the persons of voting age residing therein
were registered on November 1, 1968, or that less than 50 per centum of
such persons voted in the presidential election of November 1968. On and
after August 6, 1975, in addition to any State or political subdivision of a
State determined to be subject to subsection (a) of this section pursuant to
the previous two sentences, the provisions of subsection (a) of this section
shall apply in any State or any political subdivision of a State which (i) the
Attorney General determines maintained on November 1, 1972, any test or
device, and with respect to which (ii) the Director of the Census determines
that less than 50 per centum of the citizens of voting age were registered on
November 1, 1972, or that less than 50 per centum of such persons voted in
the Presidential election of November 1972.
42 U.S.C. § 1973b(b).
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materials or information relating to the electoral process, including ballots, only in the
English language, where the Director of the Census determines that more than five per
centum of the citizens of voting age residing in such State or political subdivision [we]re
members of a single language minority.” 42 U.S.C. § 1973b(f)(3). The statute defines
“language minorities” to include “persons who are American Indian, Asian American,
Alaskan Native or of Spanish heritage.” Id. § 1973l(c)(3). As a result of these language
minority amendments, five Florida counties -- Hillsborough, Monroe, Collier, Hendry,
and Hardee -- became subject to coverage under section 5. See 28 C.F.R. Pt. 51, App.;
see also 41 Fed. Reg. 34329 (Aug. 13, 1976); 40 Fed. Reg. 43746 (Sept. 23, 1975).
Although Florida itself is not a covered jurisdiction under section 5, it is well
settled that “the Act’s preclearance requirements apply to measures mandated by a
noncovered State to the extent that these measures will effect a voting change in a
covered county.” Lopez v. Monterey Cnty., 525 U.S. 266, 269 (1999). Accordingly, to
the extent that Florida seeks to administer any of its statewide voting changes in its five
covered counties, those changes must be submitted for preclearance. Id. at 278; see 28
C.F.R. § 51.23(a). Moreover, for reasons explained in more detail below, see infra Part
II.A, it is clear that both of the electoral changes for which Florida seeks approval come
within the purview of the Act, because they both involve changes to voting qualifications
or prerequisites to voting, or “standard[s], practice[s], or procedure[s] with respect to
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voting.” 42 U.S.C. § 1973c(a).5 Indeed, although Florida has argued that certain
formulations of the section 5 “effect” test do not apply to these changes and that the
requirement that its statewide changes be submitted for preclearance is unconstitutional,
the State does not dispute its statutory obligation under section 5 to submit the changes at
issue here for either administrative or judicial preclearance. See [91] Fla.’s Proposed
Findings of Fact & Conclusions of Law (“Fla. Br.”); [147] Third Am. Compl. (“Fla.
Compl.”).
B. Procedural History
The voting changes that Florida has submitted for our preclearance review were
included in an omnibus bill, Committee Substitute for Committee Substitute for House
Bill 1355 (“HB 1355”), which made approximately 80 sets of changes to Florida’s
election procedures.6 That bill moved through the Florida House and Senate over a
5
See 28 C.F.R. § 51.2 (defining “voting” for purposes of the Voting Rights Act to
include “all action necessary to make a vote effective in any primary, special, or general
election, including, but not limited to, registration . . . or other action required by law
prerequisite to voting, casting a ballot, and having such ballot counted properly and
included in the appropriate totals of votes cast with respect to candidates for public or
party office”); see also Perkins v. Matthews, 400 U.S. 379, 387 (1971) (“Congress
intended that the Act be given ‘the broadest possible scope’ to reach ‘any state enactment
which altered the election law of a covered [jurisdiction] in even a minor way.’” (quoting
Allen v. State Bd. of Elections, 393 U.S. 544, 566 (1969)).
6
Consistent with the nomenclature used by the parties, this opinion sometimes
refers to the final enacted version of Florida’s 2011 voting changes by the shorthand “HB
1355.”
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period of several months in the spring of 2011, and was signed into law on May 19, 2011
by the Governor. See Fla. Laws, ch. 2011-40; see also Fla. Stat. §§ 101.045, 101.657(d)
(2011) (codifying the particular voting changes at issue in this case). As we have
indicated, Florida originally submitted HB 1355 in its entirety for administrative
preclearance by the Department of Justice, and the vast majority of the changes in that
law -- most of which were minor or ministerial in nature -- were precleared by the
Attorney General on August 8, 2011. See A118 (Revised Jointly Stip. Facts ¶ 8).
In the meantime, however, Florida withdrew four sets of its voting changes from
the administrative preclearance process. See A219 (Letter from Daniel Nordby, Gen.
Counsel, Fla. Dep’t of State (July 29, 2011)). Those four changes included the early
voting and inter-county mover changes at issue before us in this opinion, along with
changes imposing additional requirements on third-party voter registration organizations
(TPROs) and amendments to the provisions governing the time frame during which
signatures on citizen initiative petitions are valid (the “citizen initiative changes”). Id.After withdrawing those changes from administrative review, Florida then filed a
complaint in this court seeking judicial preclearance of those four changes. See [1]
Compl. Early in the litigation, Florida amended that complaint twice: once to assert
claims -- which we will address in future proceedings -- challenging the constitutionality
of the Voting Rights Act, see [39] First Am. Compl. ¶¶ 107-116; and once to include a
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request for judicial preclearance of amended state regulations implementing the TPRO
changes, see [54] Second Am. Compl. ¶¶ 85-86 & Ex. B.
Over the following months, the parties conducted extensive discovery, and, after
the discovery period closed on February 29, 2012, continued to take de bene esse
depositions and submit declarations by their respective experts. By late May, the parties
had submitted proposed conclusions of law and findings of fact. They then requested that
we forego a live trial and decide the case on the basis of the written record alone. The
court held five hours of oral argument on June 21, followed by multiple rounds of
supplemental briefing on issues raised during the argument.
Since the filing of Florida’s Second Amended Complaint, the scope of our
required review has narrowed considerably. First, in March 2012 the United States
informed this court that, after conducting discovery and reviewing the record, it had
concluded that Florida had met its burden of demonstrating that the citizen initiative
changes were neither enacted with a discriminatory purpose nor will have a retrogressive
effect on minority voters. See [79] March 8, 2012 Mem. Order at 2-3. Accordingly,
Florida re-submitted those changes for administrative preclearance, and on March 21,
2012, the Attorney General informed the State that no objection would be interposed. See
[84] United States’ Notice to the Court. The parties then filed a stipulation of dismissal
as to Count Two of Florida’s Second Amended Complaint, which dealt with those citizen
initiative changes. See [85] Stip. of Dismissal.
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Florida’s stipulation of dismissal left us with only three statutory preclearance
counts to review, dealing respectively with the TPRO, inter-county mover, and early
voting amendments. But recent developments have again narrowed the issues before us.
In particular, a federal district court in Florida issued a preliminary injunction on May 31,
2012 against many of the TPRO changes in HB 1355 and its implementing rule, finding
that the plaintiffs in that case were likely to prevail on their First Amendment and
National Voter Registration Act challenges to those changes. See League of Women
Voters of Fla. v. Browning, -- F. Supp. 2d --, 2012 WL 1957793, at *10 (N.D. Fla. May
31, 2012). On June 12, Florida informed us that it would “no longer seek in this action to
preclear the [TPRO] changes that the [district court in Florida] preliminarily enjoined.”
[109] Statement Regarding the Effect of the Recent Order in the N.D. Fla. at 2. Florida
stated in that filing that it would “voluntarily withdraw the enjoined [TPRO] Changes
from this judicial preclearance action,” id. at 5, indicating that it was waiting for a
clarification from the Florida district court before doing so, see id. at 3 n.2.
Several weeks passed without further word from the State. We convened a status
conference on July 16 to determine whether Florida had made a decision regarding which
TPRO provisions it intended to withdraw from this action, and which it would still seek to
preclear. Florida advised that it had not yet made a final decision. Then, approximately
one week ago, the State informed us that it had settled the TPRO litigation in Florida. See
[104] Mem. of Points and Authorities in Support of Pl.’s Mot. for Leave to Amend the
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Compl. at 1. It filed a motion to amend its complaint in this case, seeking to remove from
its request for preclearance those TPRO changes that the district court in Florida had
enjoined, while keeping the remaining changes, some in a modified form. See id. at 4 n.1,
5. On August 13, Florida also advised the court that it would promptly submit the
remaining, non-enjoined TPRO changes to the Department of Justice for administrative
preclearance. On August 15, the court granted Florida’s unopposed motion to amend its
complaint to reflect that it no longer seeks preclearance for the enjoined changes.
The effect of this development has been to remove from our consideration the
most controversial provisions of the TPRO amendments -- including a stringent 48-hour
deadline for submission of completed voter registration applications, a requirement that
registration agents sign a “sworn statement” listing the penalties for fraudulent voter
registration, and a mandate that TPROs track and account for all registration forms
provided to and received from their employees and volunteers, and then file monthly
reports with the State reflecting those tallies. But Florida’s recent filing also means that
we must hold a new round of briefing on the TPRO changes that remain. We also must
give the Department of Justice an opportunity to consider whether to preclear the
remaining changes administratively. This process could take several more weeks, even as
the covered counties seek to finalize their plans for the November election.
Accordingly, having previously bifurcated this case into a preclearance part and a
constitutional part in order to expedite the decision on preclearance, see supra note 2, we
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now trifurcate it. This opinion will address only those matters fully before us -- the early
voting and inter-county mover changes -- for which there is no reason for further delay,
and for which the interests of judicial efficiency and finality counsel an expeditious
resolution. Once the parties have had an opportunity to brief the TPRO changes for
which Florida still seeks preclearance, and the Attorney General has made a
determination regarding whether to preclear those changes administratively, we will
address the remaining TPRO provisions if there are any. Thereafter, if our dispositions
have not rendered a decision on Florida’s constitutional challenge moot or otherwise
unnecessary, we will hold oral argument on those issues.
C. Voting Changes at Issue
In their final form, the two sets of voting amendments at issue in this opinion make
a number of changes to Florida’s practices and procedures governing early voting and
inter-county movers. We examine those changes in greater detail in the course of our
analysis and discussion below. In brief, however, the amendments make the following
changes from Florida’s previous voting laws.
1. Early Voting
Before the passage of HB 1355, Florida’s early voting law provided early in-
person voting for a potential 14-day period, beginning on “the 15th day before an election
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and end[ing] on the 2nd day before the election.” Fla. Stat. § 101.657(d) (2010). That
prior law required each county to offer early voting for exactly 8 hours per day on
weekdays and exactly 8 hours in the aggregate each weekend, yielding a total of 96 hours
of early voting. Early voting sites were to “open no sooner than 7 a.m. and close no later
than 7 p.m. on each applicable day,” but within this constraint local supervisors of
elections in each Florida county had the discretion to select the specific voting hours for
each early voting day. Id. In Florida’s five covered counties, local supervisors of
elections chose a range of voting hours between 7 a.m. and 7 p.m. depending on whether
it was a primary or general election and what voting site was involved. In addition, the
prior law gave election supervisors discretion in choosing whether their 8 aggregate
weekend early voting hours would fall on a Saturday, a Sunday, or both. See id. In each
of Florida’s five covered counties, local election supervisors exercised that discretion to
offer 8 hours of early voting on each Saturday and none on either Sunday. This meant
that in each of the five covered counties, only 12 of the available 14 days of early voting
were actually used (Monday through Saturday of each of the two weeks before the
election).
HB 1355 amends the number of days, the number of hours, the specific hours, and
the weekend times that early voting may be offered in Florida. First, under the new law,
the early voting period begins “on the 10th day before an election . . . and end[s] on the
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3rd day before the election,” for a total of only 8 days instead of the previous 12. Fla.
Stat. § 101.657(d) (2011).
Second, the law now gives local election supervisors the discretion to determine
the number of daily hours of early voting in their counties, subject to the constraint that
“no less than 6 hours and no more than 12 hours” be offered on each of the 8 early voting
days. Id. As a result, Florida’s covered counties might still offer the same total hours of
early voting (96 hours) that were required under the pre-2011 law, but only if their local
election supervisors decide to offer the maximum 12 hours of early voting on each of the
8 days. If, on the other hand, a local supervisor chooses to offer the minimum number of
hours (i.e., 6 hours per day), then the early voting period would last only 48 hours in total
-- exactly half of the hours that were offered under the prior law.
Third, the new law also removes the requirement that voting take place between 7
a.m. and 7 p.m. each day. Instead, local supervisors of elections have the discretion to
determine the specific hours of early voting in their counties, as long as they offer “no
less than 6 hours and no more than 12 hours” each day. Id. In the event that local
election supervisors offer the maximum 12 hours of early voting on a given day, then the
early voting hours for that day would necessarily include hours that fall outside the
standard 8-hour workday extending from 9 a.m. to 5 p.m. However, in the event election
supervisors offer the minimum 6 hours of early voting on a given day, the 6-hour early
voting day may be entirely within, entirely outside, or straddle the standard workday.
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Fourth, the new early voting statute also mandates some additional weekend hours
of early voting. In particular, the new early voting period runs from the Saturday two
weekends before the election to the Saturday immediately before Election Day, see id.,meaning that the early voting period under HB 1355 now requires three weekend days of
early voting: two Saturdays and one Sunday. And as already explained, the new statute
mandates anywhere from 6 to 12 early voting hours on each day. Id. Accordingly, if HB
1355 were implemented in the covered counties, it would result in at least 6 (and up to
12) hours of Sunday early voting that were never before offered in those counties.
Moreover, election officials would also have the discretion to offer up to 36 total hours of
weekend early voting (12 hours per day on each of 3 weekend days) -- for a net gain of 20
weekend early voting hours over the prior law, which offered exactly 16 weekend hours
(8 hours in the aggregate on each of two weekends).
2. Inter-County Movers
Under the pre-2011 statute governing inter-county movers, registered Florida
voters who moved to a new county of residence without informing the relevant supervisor
of elections could still update their addresses at the polls and then vote a regular ballot.
Specifically, before the enactment of HB 1355, inter-county movers were simply required
to complete an affidavit of change of address (or a new voter registration application),
listing their new address of residence and affirming that they had not already voted in the
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precinct of their former residence. See Fla. Stat. § 101.045(2)(a), (c) (2010). After their
eligibility to vote was verified, such voters were then permitted to cast a regular ballot,
which would be canvassed and counted like all other ballots. Id. § 101.045(2)(d).
After the 2011 amendments, however, “an elector whose change of address is from
outside the county may not change his or her legal residence at the polling place and vote
a regular ballot.” Fla. Stat. § 101.045(2)(b) (2011). Instead, such inter-county movers are
now only “entitled to vote a provisional ballot.” Id. The only exception is for active
uniformed services voters and members of their families, who are still permitted to cast a
regular ballot after affirming their inter-county change of address and having their
eligibility verified. Id.Once completed, provisional ballots cast by inter-county movers “shall be placed
in a secrecy envelope and thereafter sealed in a provisional ballot envelope.” Id.§ 101.048(1). The provisional ballots will then be deposited in a ballot box and returned
to election officials, whereupon the county canvassing board will examine the ballots to
determine if the voters were eligible to vote at that precinct and had not already cast a
ballot in the election. Id. § 101.048(2)(a). Florida law specifically provides that a
provisional ballot “shall be counted unless the canvassing board determines by a
preponderance of the evidence that the person was not entitled to vote.” Id. (emphasis
added); see also id. § 101.048(2)(b)(1).
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Finally, as relevant here, the 2011 amendments to Florida’s Election Code also
make pre-election address changes easier for registered Florida voters. Under the
pre-2011 law, inter-county address changes had to be completed “using a voter
registration application signed by the elector.” Fla. Stat. § 97.1031(2) (2010). Now,
however, registered voters can notify the supervisor of elections of their change of
address by “[s]ubmitting the change on a voter registration application or other signed,
written notice,” or by “[c]ontacting the supervisor of elections via telephone or electronic
means.” Fla. Stat. § 97.1031(1)(b) (2011).
***
Florida seeks judicial preclearance of each set of voting changes outlined above.
To obtain preclearance under section 5, a covered jurisdiction must demonstrate that its
proposed voting changes “neither ha[ve] the purpose nor will have the effect of denying
or abridging the right to vote on account of race or color, or in contravention of the
guarantees set forth in section 1973b(f)(2) of this title [proscribing voting restrictions
based on membership in a language minority group].” 42 U.S.C. § 1973c(a). The burden
of proving by a preponderance of the evidence that the voting changes at issue neither
have an impermissible purpose nor will have an impermissible effect rests on the plaintiff
-- in this case, the State of Florida. Reno v. Bossier Parish Sch. Bd. (“Bossier Parish I”),
520 U.S. 471, 478 (1997); City of Rome v. United States, 446 U.S. 156, 184 n.18 (1980);
Beer v. United States, 425 U.S. 130, 140-41 (1976); Georgia v. United States, 411 U.S.
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526, 538 (1973); City of Port Arthur v. United States, 517 F. Supp. 987, 1011 (D.D.C.
1981), aff’d, 459 U.S. 159 (1982); City of Petersburg v. United States, 354 F. Supp. 1021,
1027 (D.D.C. 1972), summarily aff’d, 410 U.S. 962 (1973); see also Reno v. Bossier
Parish Sch. Bd. (“Bossier Parish II”), 528 U.S. 320, 328 (2000), superseded by statute on
other grounds, 42 U.S.C. § 1973c(c).
We consider each of Florida’s proposed voting changes to determine whether the
State has met that burden. Because any evidence relating to the retrogressive effects (or
lack thereof) of the changes may inform our analysis of possible discriminatory purpose,
see Vill. of Arlington Heights v. Metro. Housing Dev. Co., 429 U.S. 252, 266 (1977), we
address the effect issue first. See City of Port Arthur, 517 F. Supp. at 1011.
II. Effects
We begin by setting forth the legal standards applicable to the effect prong of
section 5. Thereafter, we will apply those standards to Florida’s two proposed voting
changes.
A. Legal Standards
The test for assessing whether a given voting change will have “the effect of
denying or abridging the right to vote on account of race[,] color,” or membership in a
language minority group, 42 U.S.C. § 1973c(a), has been stated in a relatively
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straightforward manner. In Beer, the Supreme Court held that, to be entitled to
preclearance under the effect prong of section 5, a proposed change must not “lead to a
retrogression in the position of racial minorities with respect to their effective exercise of
the electoral franchise.” 425 U.S. at 141; accord Bossier Parish I, 520 U.S. at 478. In
other words, a voting change “has a prohibited ‘effect’ only if it is retrogressive,”
meaning that it “worsen[s] the position of minority voters” in comparison to the pre-
existing voting standard, practice, or procedure. Bossier Parish II, 528 U.S. at 324.
By definition, this “so-called ‘retrogression’ analysis” requires us to “compar[e]
the existing voting scheme” -- often known as the “benchmark” practice -- with the
“scheme that would result from the proposed change.” State of New York v. United
States, 874 F. Supp. 394, 397 (D.D.C. 1994). “If the position of minority voters is no
worse under the new scheme than it was under the old scheme,” then the proposed change
does not have an impermissibly retrogressive effect. Id. (citing City of Lockhart v. United
States, 460 U.S. 125, 132-35 (1983)). If, on the other hand, the change would lead to a
retrogression in the position of minority voters in the covered jurisdiction, then
preclearance must be denied. Beer, 425 U.S. at 141.
Lurking in the background of this seemingly simple formulation, however, are a
number of potential complications. The central problem for our purposes is that “[t]he
Supreme Court has never comprehensively defined ‘retrogression,’ nor has it engaged in
any detailed discussion of what constitutes the ‘effective exercise of the electoral
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franchise’ by minority voters.” Georgia v. Ashcroft, 195 F. Supp. 2d 25, 74 (2002),
vacated on other grounds, 539 U.S. 461 (2003). In particular, the Court has not
specifically addressed how the retrogression test applies to “ballot access” laws (e.g.,
laws governing the procedures for voting and voter registration) such as the ones before
us. Indeed, the case law interpreting the section 5 effect test deals primarily with so-
called “second generation barriers . . . to prevent[ing] minority voters from fully
participating in the electoral process,” H.R. Rep. No. 109-478, at 2 (2006): for example,
changes involving annexations, redistricting, or the creation or expansion of at-large
electoral systems.7 Despite -- or perhaps because of -- the Voting Rights Act’s central
concern with prohibiting practices and procedures that impede minority voters from
casting a ballot, see, e.g., 42 U.S.C. § 1973b(a) (suspending all “test[s] or device[s]” in
covered jurisdictions), there are no cases squarely addressing how the retrogression
analysis should function in a ballot access case like this one.
Nonetheless, our examination of the statutory text and relevant lines of authority
allows us to draw some conclusions about applying the section 5 effect test to this case.
In brief, we conclude that a change that alters the procedures or circumstances governing
voting and voter registration will result in retrogression if: (1) the individuals who will be
affected by the change are disproportionately likely to be members of a protected minority
7
See, e.g., Bossier Parish I, 520 U.S. 471; City of Lockhart, 460 U.S. 125; City of
Richmond v. United States, 422 U.S. 358 (1975); see also City of Port Arthur, 517 F.
Supp. 987; City of Petersburg, 354 F. Supp. 1021.
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group; and (2) the change imposes a burden material enough that it will likely cause some
reasonable minority voters not to exercise the franchise. We emphasize that the two-part
nature of this inquiry means that the retrogression test in ballot access cases is not solely
one of “disparate impact,” as Florida fears. See Fla. Br. 57. In other words, a change is
not retrogressive simply because it deals with a method of voting or registration that
minorities use more frequently, or even because it renders that method marginally more
difficult or burdensome. Rather, to be retrogressive, a ballot access change must be
sufficiently burdensome that it will likely cause some reasonable minority voters not to
register to vote, not to go to the polls, or not to be able to cast an effective ballot once
they get to the polls.
This inquiry is a “fact-intensive” one, and requires us to “carefully scrutinize the
context in which the proposed voting changes will occur.” Georgia v. Ashcroft, 195 F.
Supp. 2d at 76. In so doing, we do not focus solely on the burdens imposed by a voting
change, but rather must also take account of any off-setting, or “ameliorative,”
adjustments. See City of Richmond, 422 U.S. at 370-71; City of Petersburg, 354 F. Supp.
at 1031. And in the context of this particular case, where only five of Florida’s counties
are subject to the requirements of section 5, we must look at the effects of the voting
changes on minority voters in only those five covered counties. See Lopez, 525 U.S. at
284 (“Section 5, as we interpret it today, burdens state law only to the extent that that law
affects voting in jurisdictions properly designated for coverage.” (emphasis added)).
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Finally, as we have said, Florida bears the burden of proving that the voting changes at
issue are non-retrogressive. See, e.g., City of Rome, 446 U.S. at 184 n.18; Beer, 425 U.S.
at 140-41.
In settling upon the retrogression standard that we have outlined above, we reject
Florida’s novel arguments concerning section 5 -- arguments that question the traditional
understanding of the section’s effect test or that would read the test out of the statute
altogether. We discuss those arguments in the following paragraphs.
1. Florida’s most far-reaching contention is that the effect prong of section 5 does
not apply to this case at all. This, the State says, is because the 2006 amendments to the
Voting Rights Act made the Act inapplicable to changes in ballot access laws. As
relevant here, the 2006 amendments added two sections to the Act. See Pub. L. No. 109-
246, 120 Stat. 577 (2006). Section 5(b) clarified that a voting change “denies or abridges
the right to vote within the meaning of section 5(a) if it “will have the effect of
diminishing the ability of any citizens of the United States on account of race or color [or
membership in a language minority group] . . . to elect their preferred candidates of
choice.” 42 U.S.C. § 1973c(b). And section 5(d) further explained that the purpose of
section 5(b) “is to protect the ability of [minority] citizens to elect their preferred
candidates of choice.” Id. § 1973c(d).
Florida maintains that these amendments made “ability to elect” the only relevant
consideration under the section 5 effect test. And it further argues that, when Congress
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used the phrase “ability to elect,” it meant the ability of minorities as a group to elect
candidates of the group’s choice. In Florida’s view, only voting changes that dilute a
minority group’s vote -- like redistricting or annexation -- can normally impact a minority
group’s ability to elect, whereas ballot access measures -- like those at issue here --
normally cannot. Accordingly, Florida concludes, section 5’s effect test can play no role
in this case. See Fla. Br. 49, 51-53.
Contrary to Florida’s view, however, the 2006 amendments did not inoculate
covered jurisdictions from section 5 review when making changes in ballot access rules.
Election law changes dealing with ballot access have long been regarded as the kinds of
changes that are at the core of the section 5 preclearance requirement. See Nw. Austin
Mun. Utility Dist. No. One v. Holder, 557 U.S. 193, 198 (2009) (“We have interpreted the
requirements of § 5 to apply not only to the ballot-access rights guaranteed by § 4, but to
drawing district lines as well.” (emphasis added)).8 Indeed, the Voting Rights Act itself
defines “voting” to include “all action necessary to make a vote effective . . . , including,
but not limited to, registration, . . . casting a ballot, and having such ballot counted
8
See Riley v. Kennedy, 553 U.S. 406, 413 (2008) (noting that Congress repeatedly
reauthorized section 5 of the VRA upon a “[f]inding [of] continuing discrimination in
access to the ballot”); Morse v. Republican Party of Va., 517 U.S. 186, 204-06 (1996)
(holding that section 5 applies to the imposition of ballot restrictions, such as the
requirement of a registration fee as a precondition to voting at a party’s nominating
convention).
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properly.” 42 U.S.C. § 1973l(c)(1).9 The voting changes at issue in this opinion -- which
impose additional restrictions on early voting and polling place procedures for
inter-county movers -- fall squarely within that expansive definition of voting rights.
Moreover, although most of section 5 case law involves challenges to redistricting,
annexation, and other potential forms of vote dilution, it is plain that laws that make it
difficult for minority voters to register to vote or cast a ballot can just as readily -- if not
more readily -- lead to a “retrogression in the position of racial minorities with respect to
their effective exercise of the electoral franchise.” Beer, 425 U.S. at 141.
The 2006 amendments to the Voting Rights Act did nothing to alter that basic
framework. As relevant here, those amendments simply clarify that retrogressive effects
include any diminution in minority voters’ ability to elect their candidates of choice. The
language added to section 5(b), for example, provides:
Any voting qualification or prerequisite to voting, or standard, practice, or
procedure with respect to voting that has the purpose of or will have the
effect of diminishing the ability of any citizens of the United States on
account of race or color, or in contravention of the guarantees set forth in
section 1973b(f)(2) of this title, to elect their preferred candidates of choice
denies or abridges the right to vote within the meaning of subsection (a) of
this section.
9
See Allen, 393 U.S. at 565-66 (“[T]he Act gives a broad interpretation to the right
to vote, recognizing that voting includes all action necessary to make a vote effective.”
(internal citation and quotation marks omitted)); 28 C.F.R. § 51.13(b) (defining
“[c]hanges affecting voting” to include “[a]ny change concerning registration, balloting,
and the counting of votes and any change concerning publicity for or assistance in
registration or voting”).
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42 U.S.C. § 1973c(b) (emphasis added). That language merely supplements rather than
supplants the broad requirement imposed on covered jurisdictions -- in the original and
still extant section 5(a) -- to demonstrate that their voting changes will not “have the
effect of denying or abridging the right to vote on account of race or color” or
membership in a language minority group. Id. § 1973c(a). Likewise, the language added
to section 5(d) states: “The purpose of subsection (b) of this section is to protect the
ability of [minority] citizens to elect their preferred candidates of choice.” Id. § 1973c(d).
But that provision refers back only to subsection (b); it does not affect or construe
subsection 5(a), nor does it purport to make “ability to elect” the only relevant test for
section 5 purposes.10
Furthermore, an examination of the legislative history of the 2006 reauthorization
confirms that the purpose behind adding the “ability to elect” language in 42 U.S.C.
§ 1973c(b) and (d) was simply to legislatively overrule a particular interpretation of the
effect prong offered by the Supreme Court in one case: Georgia v. Ashcroft, 539 U.S.
10Our conclusion in this regard is bolstered by the fact that the Attorney General
has continued to interpose objections to ballot access changes concerning such subjects as
voter registration, the times and locations of voting, and the procedures for casting
ballots, in the wake of the 2006 amendments. See [95] United States’ and Defendant-
Intervenors’ Joint Submission Concerning Proposed Findings of Fact and Conclusions of
Law (“DOJ Br.”) at 65 (collecting examples of post-2006 objections to voting changes
dealing with voter registration, ballot access, and the manner of voting). Although not
dispositive, “the Attorney General’s interpretation of § 5” is entitled to “substantial
deference.” Lopez, 525 U.S. at 281; see NAACP v. Hampton Cnty. Election Comm’n, 470
U.S. 166, 178-79 (1985); Perkins, 400 U.S. at 390-91.
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461 (2003). In that case, which involved allegations of vote dilution in the redistricting
context, the Court adopted a multi-factor “totality of the circumstances” test, emphasizing
that retrogression for vote dilution purposes should be evaluated by reference to “all the
relevant circumstances, such as the ability of minority voters to elect their candidate of
choice, the extent of the minority group’s opportunity to participate in the political
process [through ‘influence districts’ and other means], and the feasibility of creating a
nonretrogressive plan.” Id. at 479. During the 2006 reauthorization debates, Congress
expressed concern that the open-ended Ashcroft framework would lead to “substantial
uncertainty” and would hamstring the Attorney General’s ability to make expeditious
preclearance determinations. See H.R. Rep. No. 109-478, at 68. Accordingly, Congress
added the language of 42 U.S.C. § 1973c(b) and (d) as part of the so-called “Georgia v.
Ashcroft fix,” in order to return the analysis to the comparatively simpler Beer
framework. But nothing in the 2006 legislative record indicates that Congress meant to
make the “ability to elect” standard the only relevant criterion under section 5’s effect
test. And there is certainly nothing to suggest that Congress meant to permit covered
jurisdictions to adopt retrogressive restrictions on ballot access without an examination of
the effects of those changes under section 5.
The argument that the 2006 Congress exempted ballot access changes from the
scope of section 5’s effect test is all the more implausible because reading the statute in
the manner that Florida suggests would not only contradict the plain language of section
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5(a), it would undermine the purpose of the Voting Rights Act. After all, section 5 was
passed primarily because certain states and other covered jurisdictions were using “tests
and devices,” such as poll taxes, literacy tests, and other voting qualifications, to restrict
minority voters’ access to the ballot. See Katzenbach, 383 U.S. at 310-15. Yet under
Florida’s proposed interpretation, such tests and devices would escape scrutiny under the
effect prong of section 5 precisely because they deal with ballot access measures, rather
than “second-generation” discriminatory measures such as vote dilution. We do not
believe -- nor do we find any evidence -- that this was the purpose of the Congress that
extended the Voting Rights Act in 2006.
In any event, even if Florida’s premise were correct and the “ability to elect”
standard were now the sole criterion by which retrogressive effects may be judged, the
State’s conclusion would still not follow. It is axiomatic that in order for voters to be able
to elect the candidates of their choice, they must first be able to register to vote, make it to
a polling place, and cast a ballot that will count. Accordingly, election law changes that
retrogressively burden such activities may well result in a diminution in minority voters’
“ability . . . to elect their preferred candidates of choice.” 42 U.S.C. § 1973c(b), (d).
2. Next, Florida seeks to narrow the scope of the section 5 inquiry by pointing to
the language in section 5 requiring covered jurisdictions to demonstrate that their voting
changes will not “have the effect of denying or abridging the right to vote on account of
race or color, or in contravention of the guarantees set forth in section 1973b(f)(2) of this
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title.” 42 U.S.C. § 1973c(a) (emphasis added). In Florida’s view, the “on account of”
language “requires a ‘but for’ causal connection” between race and retrogression. Fla.
Br. 55. In other words, Florida contends that under section 5, “the race, color, or
language minority status of the affected persons must play a decisive role in producing
the prohibited effect.” Id. Florida cites no case that has ever interpreted section 5 in this
narrow manner. Moreover, although the State proffers two slightly different
constructions of its proposed “but for” test, each would render the section’s effect prong
toothless.
Under Florida’s first construction, “a voting change violates the ‘effect’ prong of
the statute only if it both has a racially retrogressive effect and the covered jurisdiction
made the voting change because it would have that racially retrogressive effect.” Fla. Br.
56 (emphasis in original). This reading of the statute would render the effect prong
entirely redundant of the purpose prong, thereby contradicting decades of controlling
precedent. See, e.g., Lopez, 525 U.S. at 283 (noting that section 5 “guard[s] against both
discriminatory animus and the potentially harmful effect of neutral laws” (emphasis
added)).11 Such redundancy would also violate a basic canon of statutory construction;
11
See League of United Latin Am. Citizens (LULAC) v. Perry, 548 U.S. 399, 440
(2006) (finding that voting changes that had “damaging” effects on minority voters could
violate section 5, even if political considerations, rather than racial discrimination,
motivated the changes); City of Rome, 446 U.S. at 172-73 (holding that “Congress plainly
intended that a voting practice not be precleared unless both discriminatory purpose and
effect are absent,” and rejecting the claim that § 5 only bars voting changes made with
“discriminatory intent”); Beer, 425 U.S. at 141 (concluding that the only causation
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section 5, after all, has both a purpose and an effect prong, see 42 U.S.C. § 1973c(a), and
each must be given independent force, see Mackey v. Lanier Collection Agency & Serv.,
Inc., 486 U.S. 825, 837 & n.11 (1988) (collecting cases stating that courts should hesitate
“to adopt an interpretation of a congressional enactment which renders superfluous
another portion of that same law”).
Florida’s second proposed construction is that “a change will violate the effect
prong if it has a retrogressive effect on minority voters and the voters’ race, color, or
language minority status is the reason for the retrogression.” Fla. Br. 56 (emphasis in
original). Under that reading, “[a] voting change could not fail the ‘effect’ prong merely
based on an incidental correlation.” Id. In other words, “if the retrogression is ‘because
of’ some other factor (e.g., socioeconomic status . . .),” which just happens to be
correlated with race, “it is not ‘because of’ race, color, or language minority status and
preclearance cannot be denied under the ‘effect’ prong.” Id. This argument, too, would
read the effect test out of the statute. It is difficult to imagine an example of a voting law
or practice that would meet such a stringent definition of race-based causation -- unless,
of course, the law were something so facially discriminatory as “African-Americans may
not vote.” The Voting Rights Act is plainly not limited to addressing such obvious forms
of discrimination. Indeed, the purpose of the Act was to eliminate “the subtle, as well as
requirement under the effect test is that the voting change at issue “would lead to . . .
retrogression”).
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the obvious, state regulations which have the effect of denying citizens their right to vote
because of their race.” Allen, 393 U.S. at 565-66. And the prototypical examples of
voting laws that are disallowed by the Act -- laws like literacy tests and poll taxes -- were
not based directly on race, but rather on the correlation of race with low literacy rates,
poor educational opportunities, and poverty. Florida’s proposed interpretation of the
effect test would thus mean that section 5 could not prevent the adoption of modern-day
equivalents of Jim Crow-era voting laws. To state that proposition is to refute it.
3. Third, Florida contends that the effects of its voting changes must be evaluated
“vis-a-vis the 1972 benchmark” -- that is, the laws that were “in force or effect” in
Florida’s covered counties “on November 1, 1972, the effective date of their coverage.”
Fla. Br. 58.12 This argument need not detain us long because it is foreclosed by numerous
binding precedents that identify the relevant section 5 “baseline as the most recent
practice that was both precleared and ‘in force or effect’ -- or, absent any change since
the jurisdiction’s coverage date, the practice that was ‘in force or effect’ on that date.”
Riley v. Kennedy, 553 U.S. 406, 421 (2008) (emphasis added).13 In other words, “[t]o
12
Section 5 requires preclearance whenever, inter alia, “a State or political
subdivision with respect to which the prohibitions set forth in section 1973b(a) of this
title based upon determinations made under the third sentence of section 1973b(b) of this
title are in effect shall enact or seek to administer any voting qualification or prerequisite
to voting, or standard, practice, or procedure with respect to voting different from that in
force or effect on November 1, 1972.” 42 U.S.C. § 1973c(a).
13
See, e.g., Bossier Parish II, 528 U.S. at 334 (“In § 5 preclearance proceedings . . .
the baseline is the status quo that is proposed to be changed.”); Bossier Parish I, 520 U.S.
at 478 (“Retrogression, by definition, requires a comparison of a jurisdiction’s new voting
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determine whether there have been changes with respect to voting, we must compare the
challenged practices with those in existence before they were adopted.” Presley v.
Etowah Cnty. Comm’n, 502 U.S. 491, 495 (1992). If the covered jurisdiction’s voting
practices have been unchanged since the date on which the jurisdiction became subject to
section 5, then the practices in existence on the date of coverage serve as the benchmark.
See id. (“Absent relevant intervening changes, the Act requires us to use practices in
existence on [the date of coverage] as our standard of comparison.” (emphasis added)).
But once the jurisdiction amends its voting laws, the laws that existed on its coverage date
are no longer “directly relevant, for differences once precleared normally need not be
cleared again.” Young v. Fordice, 520 U.S. 273, 281 (1997). Instead, the new laws
“become part of the baseline standard for purposes of determining” compliance with
section 5. Id.Florida seeks to cast the language in Riley (and other opinions) that defines the
relevant benchmark as “the most recent practice that was both precleared and ‘in force or
effect,’” 553 U.S. at 421, as merely an unchallenged assumption. See Fla. Br. 58-59. But
whether “unchallenged” or not, it has been consistently applied and has formed the basis
plan with its existing plan. . . . [T]he jurisdiction’s existing plan is the benchmark against
which the ‘effect’ of voting changes is measured.”); Holder v. Hall, 512 U.S. 874, 883-84
(1994) (“The baseline for comparison is present by definition; it is the existing status.”);
see also 28 C.F.R. § 51.54(c)(1) (“In determining whether a submitted change is
retrogressive the Attorney General will normally compare the submitted change to the
voting standard, practice, or procedure in force or effect at the time of the submission.”).
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of Supreme Court section 5 jurisprudence for decades. As an inferior court, we are not
empowered to question such decisive language. See Overby v. Nat’l Ass’n of Letter
Carriers, 595 F.3d 1290, 1295 (D.C. Cir. 2010) (noting that “carefully considered
language of the Supreme Court, even if technically dictum, generally must be treated as
authoritative[,] . . . especially [where] the Supreme Court has reiterated the same
teaching” (internal citations and quotation marks omitted)).14
4. Fourth, even if we adopt the retrogression test outlined in Beer and the
traditional benchmark outlined in Riley, Florida asks us to make a number of narrowing
constructions for purposes of applying the retrogression test to this case. We also reject
these novel arguments because they are inconsistent with the central goal of the Voting
Rights Act: to provide robust and meaningful protections for minority voting rights.
a. Florida’s first such argument contends that the only ballot access
changes that violate the effect test are those that make it impossible for minority citizens
to vote. See Fla. Br. 61. We cannot agree, however, that the mere existence of other
possible avenues for voting renders Florida’s changes to its early voting and inter-county
mover procedures immune from section 5 scrutiny. If that were the case, a state could
14
We also note that Florida has never submitted a detailed description of the
relevant voting laws in effect in the covered counties in 1972, making it impossible to
determine whether retrogression would occur if they were the benchmark. Instead,
Florida’s complaint describes the benchmark practices as the election laws and rules that
were in effect immediately before the 2011 changes made by HB 1355. See Fla. Compl.
¶¶ 46-52, 59-61, 68-69. Its preclearance submission to the Attorney General does the
same. See A8921-23, 8929-30.
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close polling places in minority precincts and yet survive the effect test so long as voters
still had the option to travel across town to more distant polls. No court has endorsed
such a restrictive construction of the section 5 effect prong. See Bossier Parish Sch. Bd.
v. Reno, 7 F. Supp. 2d 29, 31 (D.D.C. 1998) (noting that the section 5 effect test is “broad
enough to identify ‘retrogression’ . . . if (to imagine an example not present in this case)
polling places were located so that they are less convenient to black voters than before the
change.”), aff’d, 528 U.S. 320 (2000). Nor do we. Although the availability of other
options may be relevant to the retrogression analysis, it is not dispositive.
b. We also decline Florida’s invitation to import a requirement that a
change constitute a “severe burden” or impose “excessively burdensome requirements”
on the right to vote before it can be considered retrogressive. Fla. Br. 60 (citing Crawford
v. Marion Cnty. Election Bd., 553 U.S. 181, 202 (2008); Burdick v. Takushi, 504 U.S.
428, 433-34 (1992); Storer v. Brown, 415 U.S. 724, 728-29 (1974)). That language is
drawn from election-law cases decided in the First and Fourteenth Amendment context,
as part of a determination of whether a given voting law should be subject to strict
scrutiny even if no suspect classification is involved. As such, it does not control here.
Instead, the question for section 5 purposes is simply whether the burdens are sufficiently
material to result in retrogression with respect to minority voters’ exercise of their voting
rights.
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c. We also reject Florida’s assertion that voting changes can have “de
minimis,” and therefore permissible, effects if they only burden a small number of voters.
Cf. Fla. Br. 62-66. If even a small number of voters are sufficiently burdened by a voting
change that they do not exercise the franchise when they otherwise would have done so,
then that change can (under some circumstances) be considered retrogressive.15 Voting is
a fundamental right, “preservative of other basic civil and political rights,” Reynolds v.
Sims, 377 U.S. 533, 562 (1964), and no amount of voter disenfranchisement can be
regarded as “de minimis.”
d. Further, as we explain in more detail in the course of our discussion of
specific voting changes, see infra Part II.B.1, we disagree with Florida’s position that a
change is not retrogressive if it affects “in the aggregate significantly more [w]hites than
minorities.” Fla. Br. 53 (emphasis added). Focusing on the effects of voting changes in
absolute terms would mean that almost no ballot access change would be considered
retrogressive; after all, the fact that fewer members of a particular group are present in the
overall electorate is part of what it means to be a minority group. Applying the effect test
in the manner Florida suggests would thus allow covered jurisdictions to enact changes
with clearly adverse effects on minority voters so long as more white voters were also
15
To continue with the example discussed above: If a covered jurisdiction closed a
polling place disproportionately serving minority voters but having relatively few voters
as a percentage of the overall electorate, and the added distance to the new precinct meant
that most -- but not all -- of the minority voters in that neighborhood would no longer be
able to make it to the polls, the closure would still have a retrogressive effect.
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affected. That approach would fly in the face of the Voting Rights Act’s primary goal of
protecting minority voting populations. The retrogression assessment must therefore be
conducted in relative terms, with reference to the proportions of each group affected by
the change.
e. Finally, we reject Florida’s contention that the effect prong of the statute
must be read in accordance with the State’s proposed interpretations because there are
“constitutional concerns” with any contrary reading. See, e.g., Fla. Br. 57.16 We do not
discern constitutional difficulties with the interpretation we have set forth above.
Contrary to Florida’s contention, “[t]he net effect” of this construction of the section 5
effect test is not “to require states and political subdivisions to take account of race in
every decision they make in order to ensure that any change would have an ameliorative
impact on minority groups.” Id. at 57-58. Nothing in the effect test as we have construed
it for application to ballot access cases requires covered jurisdictions to maximize voting
opportunities for their minority citizens alone. See id. Rather, under section 5, covered
jurisdictions must simply ensure that their ballot access changes do not have retrogressive
effects on minority voting rights -- that is, that they do not “worsen the position of
minority voters” in comparison to the pre-existing voting standards, practices, or
16
We note that this is separate and distinct from Florida’s contention, also raised in
its complaint, that sections 5 and 4(b) of the Voting Rights Act are unconstitutional on
their face. That is a contention that will be addressed at a later stage of this litigation, and
we do not prejudge it now. For present purposes, we simply construe the statute as it
applies to this ballot access case. In so doing, we find no need to read the statute any
differently than its text and the available precedent require.
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procedures. Bossier Parish II, 528 U.S. at 324; see City of Lockhart, 460 U.S. at 134 &
n.10.
Nor does this interpretation mean, as Florida suggests, see Fla. Br. 58 n.12,
that voting changes that benefit white voters automatically result in retrogression for
minority voters. Indeed, the United States and the intervenors explicitly disclaim that
position. DOJ Br. 68 n.17. Rather, the question is whether these voting changes will
have adverse effects on minority voters’ “effective exercise of the electoral franchise” in
Florida’s covered counties. Beer, 425 U.S. at 141.
***
We now proceed to apply the section 5 effect test to the two voting changes at
issue in this opinion, beginning with the new procedures for early in-person voting. In
examining each of the changes, we are guided by the two central inquiries that we have
outlined above: (1) Are the individuals who will be affected by the change
disproportionately likely to be members of a protected minority group? And (2) Does the
change impose a burden material enough that it will likely cause some reasonable
minority voters not to exercise the franchise?
B. Early Voting Changes.
As explained above, see supra Part I.C.1, the relevant changes to Florida’s early
voting procedures involve the number of days, the number of hours, the specific hours,
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and the weekend times that early voting may be offered in future elections. Under the
benchmark law, the potential early voting period lasted a total of 14 days, beginning “on
the 15th day before an election and end[ing] on the 2nd day before an election.” Fla. Stat.
§ 101.657(d) (2010). Under that prior law, exactly 8 hours of early voting were mandated
on each weekday, and exactly 8 hours in the aggregate each weekend, yielding a total of
96 early voting hours. Id. Early voting sites were required to “open no sooner than 7 a.m.
and close no later than 7 p.m. on each applicable day.” Id. Within this important
constraint, local supervisors were free to select the specific voting hours for each voting
day as they saw fit. See id. Historically, local supervisors of elections in the five covered
counties have chosen a range of voting hours depending on the type of election and the
location of the early voting site. With one exception, all of the permutations used by the
covered counties captured at least a part of the early morning or evening hours thought to
be most convenient for those early voters working the standard 9 a.m. to 5 p.m.
workday.17 Finally, although the prior law permitted local supervisors of elections to
choose whether their 8 aggregate weekend early voting hours would fall on a Saturday, a
Sunday, or both, supervisors in each of Florida’s five covered counties decided to offer
17
The following five permutations of early voting hours were used by the covered
counties in recent elections: (1) 8 a.m. to 1 p.m. and 2 p.m. to 5 p.m.; (2) 8:30 a.m. to 4:30
p.m.; (3) 9 a.m. to 5 p.m.; (4) 10 a.m. to 6 p.m.; and (5) 10:30 a.m. to 6:30 p.m. See
A8533-34, 8539, 8542-43, 8549, 8560, 8564-65, 8570, 8581, 8584-85, 8591, 8604, 8607-
09, 8614-15 (Fla.’s Resps. to First Set of Interrogs. of Def. United States, Ex. D); [136]
United States’ Resp. to the Benchmark Questions Raised by the July 3, 2012 Minute
Order, Attach. 1 at 5, 9-10, 12, 24-25, 27, 31.
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early voting only on Saturdays. This meant that early voting was actually offered in each
of the covered counties for a total of only 12 days under the benchmark statute.
In short, the benchmark practice against which we must compare the early voting
changes was 96 hours over 12 days, none of which was a Sunday. See Riley, 553 U.S. at
421 (holding that the benchmark is the last precleared law actually in practice in the
covered jurisdiction). Each day included 8 hours of early voting, although the specific
hours varied. See supra note 17.
Because we have not been presented with a specific voting plan from any of the
five covered counties, there is much that we do not know about how the new law will be
implemented in the five covered counties. We do know, however, that Florida’s new law
reduces the total number of days available for early voting. The new early voting period
begins “on the 10th day before a [state or federal] election . . . and end[s] on the 3rd day
before the election.” Fla. Stat. § 101.657(d) (2011). Thus, under the new statute, early
voting lasts from the Saturday two weekends before the election through the next
Saturday (three days before Election Day) -- for a total of only eight days. That is four
fewer days than under the benchmark law.
Moreover, under the new law, election supervisors in each county now have the
discretion to determine the number of daily hours of early voting in their counties, subject
to a statutory requirement that “no less than 6 hours and no more than 12 hours” be
offered on each of the 8 early voting days. Id. The end result is that, although Florida’s
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counties may choose the maximum and still offer 96 total hours of early voting (12 hours
per day over 8 days), they may also choose the minimum and offer only 48 total hours (6
hours per day over 8 days) -- or anything in between. An early voting period lasting only
48 hours would reflect exactly half of the hours that were required under the benchmark
practice.
The new law also grants election supervisors the discretion to select the specific
hours of early voting for each voting day, unencumbered by the prior law’s constraint that
early voting sites could not open before 7 a.m. or close after 7 p.m. Compare Fla. Stat.
§ 101.657(d) (2011) (providing that “the supervisor has the discretion to determine the
hours of operation of early voting sites”), with Fla. Stat. § 101.657(d) (2010) (“Early
voting sites shall open no sooner than 7 a.m. and close no later than 7 p.m. on each
applicable day.”). If supervisors of elections decide to offer the maximum of 12 hours
each day on a 7 a.m. to 7 p.m. schedule, then the daily voting hours would include both
morning and evening hours that fall outside the standard 9 a.m. to 5 p.m. workday. If
they offered 12 hours but a different schedule, that would not necessarily be so.18 And if
they instead offered only the minimum of 6 hours, there would be many schedules that
would not include non-working hours.
18
For example, each of the following permutations of a 12-hour early voting day
would be permissible under the new law: (1) 7 a.m. to 7 p.m.; (2) 5 a.m. to 5 p.m.; (3) 9
a.m. to 9 p.m.; (4) 5 a.m. to 7 a.m., 9 a.m. to 5 p.m., and 7 p.m. to 9 p.m. Only the first
permutation would capture the morning and evening hours on either end of the standard 9
a.m. to 5 p.m. workday. The second and third permutations would capture only one end.
The fourth permutation would capture neither.
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Finally, the new statute mandates some additional weekend voting that was not
offered under the benchmark practice. In particular, the law requires early voting for at
least 6 hours on the Sunday nine days before Election Day, whereas, as we have already
explained, there was no Sunday early voting at all under the benchmark practice in the
covered counties. And although the new law removes the theoretical possibility under the
benchmark statute of early voting on the Sunday immediately before Election Day,
compare Fla. Stat. § 101.657(d) (2011), with Fla. Stat. § 101.657(d) (2010), that does not
affect our analysis because none of the covered counties offered any Sunday voting at all.
See Riley, 553 U.S. at 421 (holding that the relevant benchmark is the “most recent
practice that was both precleared and in force or effect” (emphasis added) (internal
citation and quotation marks omitted)); City of Lockhart, 460 U.S. at 132 (“The proper
comparison is between the new system and the system actually in effect.”).
In sum: With respect to days, the new law results in 4 fewer early voting days than
the benchmark (8 days rather than 12). One of those days is now a Sunday, whereas there
was no Sunday voting under the benchmark practice. With respect to hours, the new law
may result in a total of as few as 48 hours of early voting -- one half of the 96 required
under the benchmark -- because it permits counties to offer as few as 6 hours per day
(over the 8 days). But the new law also permits counties to offer as many as 12 hours of
voting per day, which, if adopted by the counties, would result in a maximum of 96 hours
of early voting -- the same number of hours as under the benchmark. With respect to the
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specific hours of voting, the new law leaves the supervisors unconstrained. Hence, it may
result in fewer of the early morning and evening hours that are convenient for voters
working the standard 9 a.m. to 5 p.m. workday. Or, it may result in more such hours.
The interrelationship between the days and hours of early voting under the old and
new law introduces uncertainty into our evaluation of the effects of these early voting
changes. For the reasons discussed below, we conclude that at least one permutation of
the early voting changes would result in retrogression. In particular, we conclude that
Florida has failed to meet its burden of showing that retrogression would not occur if the
covered counties not only reduced the number of early voting days from 12 to 8 as
required by the new law, but also reduced their total early voting hours from 96 to 48
(regardless of the specific hours chosen). As also discussed below, however, we
conclude that if the counties were instead to utilize the maximum 96 hours permitted
under the new law, and offer them on a standard 7 a.m. to 7 p.m. schedule that would
provide the opportunity for voters to vote before and after the workday, Florida would
likely be able to meet its burden of demonstrating that the overall effect of the changes
would not be retrogressive. But neither Florida nor the counties have submitted the
counties’ intended hours for preclearance, nor do we have any real indication of what the
counties will do. Accordingly, because retrogression may well follow from the new
statute, we cannot grant preclearance at this time. Our analysis follows.
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1. As an initial matter, we find that minority voters will be disproportionately
affected by the changes in early voting procedures because they disproportionately use
early in-person voting. As the intervenors’ expert witness, Professor Paul Gronke,19
determined, the proportion of African-American usage of early in-person voting in
Florida “has exceeded White usage of early in-person voting in four of five [recent]
federal elections,” and “substantially exceeded White usage in both the 2004 and 2008
presidential elections.” A10092, 10104 (Am. Expert Report of Prof. Paul Gronke).20 The
19
Gronke is Professor of Political Science at Reed College and Director of the
Early Voting Information Center (EVIC), a “non-partisan center for the study of non-
precinct place voting in the United States.” A10087-88 (Am. Expert Report of Prof. Paul
Gronke). The principal focus of his research and writing since 2006 has been early
voting, and he has published numerous peer-reviewed articles and several book chapters
on the subject. See id. Indeed, Professor Gronke has been described -- even by Florida’s
expert witness -- as a “leading expert” in the field of early voting, A5835-36 (Dep. of
Prof. M.V. (Trey) Hood III); see also A5489 (Dep. of the United States’ expert, Dr.
Charles Stewart III, stating that Prof. Gronke is “the person who’s . . . done the most and
is probably the most respected” in the field of early voting research). In reaching his
conclusions about early voting in this case, Professor Gronke used a data set assembled
by the United States’ expert witness, Dr. Stewart. A10092-93 (Am. Expert Report of
Prof. Gronke); see A7759-86, 7802-35 (Expert Report of Dr. Stewart, explaining how the
data set was derived and displaying some of that data). And although Florida maintains
that Professor Gronke’s expert reports should be stricken and/or are “entitled to little
weight” for a number of reasons, Fla. Reply 23-24, we have considered each of Florida’s
arguments on this score and reject them.
20
There is no evidence that Hispanic voters use early voting more often than white
voters. Rather, the data indicate that Hispanics and whites vote early at about the same
rates. See A7818 (Expert Report of Dr. Stewart, Attach. J); A10105 (Am. Expert Report
of Prof. Gronke, Ex. Six). Nonetheless, although Florida’s five covered counties are
covered under section 5 as a result of the 1975 “language minority” amendments to the
Voting Rights Act, Florida’s preclearance burden requires it to demonstrate non-
retrogression with respect to African-Americans as well as Hispanics. See 42 U.S.C.
§ 1973c(a). Florida takes issue with this point in the briefs it has filed in connection with
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data is particularly striking for the 2008 general election, when more than half (54%) of
African-American voters in Florida cast ballots using early in-person voting -- twice the
rate of white voters. A10106 (Am. Expert Report of Prof. Gronke, Ex. Seven); see
A7818 (Expert Report of Dr. Stewart, Attach. J). And although rates of early voting
declined across the board in 2010, the African-American usage rate still exceeded the
white rate by a factor of about one-third in the 2010 general election. See A10106 (Am.
Expert Report of Prof. Gronke, Ex. Seven).21
These disproportionate usage rates hold true in Florida’s five covered counties as
well. In 2008, for example, 52% of all African-American voters in the covered counties
cast an early in-person ballot, compared to only 28% of white voters. Id. at A10095-96,
10105; see also A7821 (Expert Report of Dr. Stewart, Attach. M). African-American
rates of early in-person voting in the five covered counties also “remained statistically
significantly higher [than white rates] in the 2010 primary and general elections.”
its constitutional challenges to section 5, see [98] Pl.’s Mot. for Summ. J. (“Fla. Const.
Br.”) at 40, and we will address Florida’s constitutional argument in future proceedings.
For current purposes, however, we apply the language of section 5 as written: to obtain
preclearance, a covered jurisdiction must demonstrate that its voting changes “neither
ha[ve] the purpose nor will have the effect of denying or abridging the right to vote on
account of race or color, or in contravention of the guarantees set forth in section
1973b(f)(2) of this title [the language minority provisions].” 42 U.S.C. § 1973c(a)
(emphasis added).
21
See also A9091 (Rebuttal Decl. of Prof. Gronke) (“[T]here was a massive
increase, of nearly 75 percent, in the use of early in-person voting by African Americans”
between 2006 and 2010, and “[t]his increase in early in-person voting by African
Americans dramatically exceeded the increase among White voters.”).
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A10096 (Am. Expert Report of Prof. Gronke). Even Florida’s own expert witness,
Professor M.V. (Trey) Hood III, acknowledged that he “can see the pattern” of higher
levels of African-American usage of early in-person voting in the covered counties after
the 2008 primary election. A5855 (Hood Dep.); see also A9041-42 (Expert Report of
Prof. Hood) (showing that the African-American rates of early voting in the covered
counties exceeded the rates of white voters to a significant degree in the 2008 general
election, the 2010 primary, and the 2010 general election (and, to a lesser extent, in the
2008 primary)).
Furthermore, all available evidence suggests that these trends “will continue into
the 2012 general [election] and likely in[to] the future.” See A9918 (De Bene Esse
Dep. of Prof. Gronke). According to Professor Gronke:
The fact that the rates of African American early in-person voting in the
covered counties were almost double the White rate in the 2008 general
election and remained statistically significantly higher in the 2010 primary
and general elections is strong evidence that African Americans will
continue to have a higher rate of usage for early in-person voting when
compared to White voters.
A10096 (Am. Expert Report of Prof. Gronke); see A10079 (De Bene Esse Dep. of Prof.
Gronke) (“I think that history will show that 2008 ha[d] a particularly high rate [of
African-American early voting], but that that adoption rate by African-Americans had a
lasting impact, and that the higher rate of usage will continue.”); id. at A10034-36.
Florida’s expert likewise agreed that it is “more likely than not” that in the 2012 general
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election, the African-American usage rate of early in-person voting will be higher than
the white usage rate. A5875-76 (Hood Dep.).22
Moreover, although the differences are not as stark as for the entire early voting
period, the evidence also shows that African-American voters disproportionately used the
first five days of the benchmark early voting period -- i.e., the Monday through Friday of
the week that falls two weeks before Election Day -- all of which will now be eliminated
under HB 1355. In the 2008 general presidential election, for example, approximately
17.25% of African-American voters in the covered counties cast an early in-person ballot
during the first five days of early voting (the so-called “repealed days” of early voting),
compared to only 9.3% of white voters. A10097 (Am. Expert Report of Prof. Gronke);
see A7821 (Expert Report of Dr. Stewart, Attach. M). In other words, African-American
voters used the repealed days of early voting at rates nearly double those of white voters
in 2008. The difference between these percentages “far exceeds the . . . statistical
significance criterion.” A10097 (Am. Expert Report of Prof. Gronke). And while the
22
To be sure, our preclearance decisions in this case are not based solely on the
2012 general election; rather, we must determine whether the voting changes at issue here
will be retrogressive in general, not with regard to any specific election. Nonetheless,
prediction is always more reliable for the near as compared to the distant future. Because
the 2012 election is the next election that will be held in Florida, and because general
presidential elections tend to draw the highest overall voter turnout, the forecasted
disparity in the use of early voting in the 2012 general election is a significant factor in
our predictive evaluation of the effects of these changes.
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data with respect to use of the repealed days in the 2010 elections is more inconclusive,23
for reasons discussed below we find the 2008 presidential election to be the best indicator
of future trends.
In finding that African-American voters in the covered counties will be
disproportionately affected by the reduction in early voting days under the new law, we
reject the contrary opinions of Florida’s expert witness, Professor Hood.24 We do so
because the analysis underlying his conclusions suffers from a number of methodological
flaws.25
23
In the 2010 primary election, African-Americans “continued to vote at a higher
rate” than whites during the first week of early voting. A10097 (Am. Expert Report of
Prof. Gronke) (describing a usage rate of 7.91% for African-American voters, compared
to 6.84% for white voters). In the 2010 general election, however, African-Americans
voted at a slightly lower rate than whites during that first week. Id. (indicating that 6.88%
of African-Americans voted during the repealed days in the 2010 general election,
compared to 8.34% of whites). It is unclear whether either of these differences is
statistically significant: Professor Gronke testified that he believed that both were, see
A6211-13 (Gronke Dep.), but the record does not contain any statistical significance
calculations, and Professor Gronke’s expert report does not mention any conclusions to
that effect, see A10097. In any event, whether statistically significant or not, at best the
racial disparities in the two 2010 elections cancel each other out, leaving the 2008 general
election as a clear indicator that overall, African-Americans are disproportionate users of
the first five days of the benchmark early voting period.
24
Professor Hood is Professor of Political Science at the University of Georgia. He
has authored only one publication and one conference paper dealing with early voting,
and admits that, unlike the intervenors’ expert (Professor Gronke), he is not a “leading
expert in the field of early voting.” A5833-34 (Hood Dep.).
25
Our decision not to rely on Professor Hood’s conclusions obviates the need to
rule on the United States’ and intervenors’ objection to Professor Hood’s testimony under
Federal Rule of Evidence 702. See DOJ Br. 78 (citing Daubert v. Merrell Dow Pharm.,
509 U.S. 579 (1993)).
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First, Professor Hood asserts that the effects of the early voting changes will be
“disproportionately borne by [white] voters” because they “comprise the greatest share of
total number of early votes cast” in the covered counties. A9061 (Expert Report of Prof.
Hood). But as the intervenors’ expert, Professor Gronke, convincingly explains, this
“analytic method violates a basic tenet of comparative analysis” because it fails to
“control for . . . the size of the underlying subgroups.” A9089 (Rebuttal Decl. of Prof.
Gronke). After all, it is “no surprise that [white] voters are . . . the majority of users of
early in-person voting” because they also represent “the vast majority of all Florida
voters,” id. (emphasis added), including those in the covered counties, see A7683-84
(Expert Report and Decl. of Russell Weaver) (collecting census data in the covered
counties).26 That is why, as Professor Gronke explains, adjusting for population
demographics is critical in assessing the potential retrogressive effects of a given voting
change:
[I]f you simply look at the absolute number of impacted voters, inevitably
it’s going to look like whites are most impacted simply because they
constitute more of the voters. . . . It’s simply misleading if you’re going to
be looking at the impact on race to look at absolute numbers because all
you’re going to do when you look at absolute numbers is . . . examin[e]
26
See also A7821 (Expert Report of Dr. Stewart, Attach. M) (showing that 525,324
white voters cast a ballot in the 2008 general election, compared to only 86,314 African-
American voters and 66,391 Hispanic voters); A7684 (Expert Report and Decl. of Russell
Weaver) (collecting census data showing that in the 2010 general election, approximately
70% of the registered voters in the covered counties were white, while African-
Americans and Hispanics each made up only approximately 12% of the voting population
in those counties).
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whether one group is larger or smaller. . . . You’re not considering the
impact of race on the rates of usage.
A9888-90 (De Bene Esse Dep. of Prof. Gronke); see A9089 n.1 (Rebuttal Decl. of Prof.
Gronke) (explaining how Prof. Hood’s flawed analysis could lead to endorsing a poll tax
that has an obviously disparate effect on minority voters). As even Professor Hood
conceded, the accepted practice in the social sciences is to look at the rate of impact on
different groups, not simply absolute numbers. A5926-28 (Hood Dep.). Yet his
calculations do not follow that accepted method of statistical analysis. See id. at 5840-42.
Moreover, as we suggested above, adopting Professor Hood’s approach would
permit covered jurisdictions to enact changes with clearly adverse effects on minority
voters as long as more white voters were also affected. See supra Part II.A.4.d.27 Since
having fewer voters is part of what it means to be a “minority,” that would render section
5 ineffectual in virtually all ballot access cases -- an approach that cannot be squared with
Congress’ intent to use the section to protect minority voting populations. Accordingly,
as we concluded above, the retrogression assessment must be conducted in relative terms,
with reference to the proportions of each group affected by the change.
27
Consider, for example, a hypothetical jurisdiction with 100 minority voters and
1,000 white voters. If the jurisdiction enacted a change that resulted in 100% of minority
voters and 15% of white voters no longer casting a ballot, it is clear that such a change
would have disproportionately adverse effects on minority voters. Indeed, it would
entirely disenfranchise them. But under Florida’s proposed approach, the change would
be entitled to preclearance because only 100 minority voters would be affected as
compared to 150 white voters.
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Second, we reject other calculations in Professor Hood’s expert report because we
agree with the intervenors’ expert that “[i]n several instances Professor Hood
inappropriately pools together groups of dissimilar data, which is not methodologically
appropriate.” A9092 (Rebuttal Decl. of Prof. Gronke). For example, Professor Hood
“attempts to draw conclusions based on data ‘pooled’ from different kinds of elections,
without offering a reason to believe that early voting patterns are in fact common across
the different types of elections.” Id. And “[t]here is no evidence that Professor Hood
conducted a pooling test, a statistical tool that helps determine whether it is valid to
aggregate data” from those different types of elections. Id.; see A5762-64 (Hood Dep.)
(conceding that he pooled the data without running any of the standard statistical tests to
determine whether such pooling was appropriate). This problem is exacerbated, for
reasons discussed in more detail below, by the fact that Professor Hood often
“aggregat[es] data from all elections analyzed in his Report except for the 2008 general
election,” thereby further distorting the data. A9092 (Rebuttal Decl. of Prof. Gronke).
Professor Hood also frequently lumps African-Americans and Hispanics into a
single category of “Minorities,” which misleadingly flattens the data because, unlike
African-Americans, Hispanic voters use early voting at about the same rate as whites.
See A7818 (Expert Report of Dr. Stewart, Attach. J); A10105 (Am. Expert Report of
Prof. Gronke, Ex. Six). This “masks significant differences between White and African-
American rates of early in-person voting.” A9092 (Rebuttal Decl. of Prof. Gronke). As
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Professor Gronke notes, “[i]t is inconsistent with political science research standards to
pool together these two racial groups when they demonstrate different behaviors in
voting.” Id. at A9093. Moreover, it is at odds with the relevant inquiry under section 5
because the section forbids a covered jurisdiction from diminishing voting rights “on
account of race or color, or” membership in a language minority group. 42 U.S.C.
§ 1973c(a) (emphasis added).
Finally, we reject Professor Hood’s contention that the 2008 general election was
an “outlier” that should be ignored. More specifically, Professor Hood asserts that the
“anomalous” circumstances surrounding the 2008 election -- namely, “the historic
candidacy of Barack Obama, the first African-American presidential candidate
representing one of the two major political parties in the United States,” coupled with the
“intensity of interest in President Obama’s candidacy” among African-American voters --
account for the “spike in early in-person voting turnout among African-Americans” in
2008. A9042 (Expert Report of Prof. Hood). According to Professor Hood, if “the 2008
general election is removed from the analysis, the numbers more accurately reflect the
historic trends.” Id. at A9043. And once the 2008 general election is discarded, the rates
of white and minority usage of early in-person voting then appear -- at least to Professor
Hood’s eye -- “roughly comparable,” meaning (in his view) that the early voting changes
should not have disproportionate effects on African-American voters. Id. at A9041-42;
see also id. at A9061 (describing the early voting turnout rates by race as “very similar”);
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Fla. Br. 65 (“Putting aside an anomalous 2008 general election, . . . [w]hite voters are
slightly more likely to use early voting than their minority counterparts.” (emphasis
added)).
We find this reasoning unpersuasive for several reasons. First, and most
important, we can hardly discard an election as an “outlier” or an “anomaly” simply
because an African-American ran for President for the first time as a major-party
candidate and many African-Americans voted for him. The Voting Rights Act was
designed to ensure that, among other things, minorities can “elect their preferred
candidates of choice.” 42 U.S.C. § 1973c(d). Thus, we cannot ignore elections in which
minority candidates make breakthroughs in winning elected office on the assumption that
future elections will revert to the status quo.
In addition, although the 2008 election was of course unique in certain respects,
the record does not support the assertion that that election was an “outlier” that can be
discarded out of hand. Rather, the record evidence suggests that the 2008 election is
highly predictive of what is likely to happen in 2012. The expert witnesses in this case
are all generally in agreement that, when assessing future usage rates of early voting,
comparisons are best made between “like” elections, and that the most recent analogous
election is the best predictor of what will happen in the future. Accordingly, the 2008
general presidential election represents the best guidepost for projecting how early in-
person voting will be used in the upcoming 2012 general presidential election. See, e.g.,
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A5657-58 (Stewart Dep.); A9091 (Rebuttal Decl. of Prof. Gronke); A10098 (Am. Expert
Report of Prof. Gronke); see also A5867-68 (Hood Dep.) (conceding that “the 2008
presidential election would be our best gauge” of “what’s going to occur in the 2012
general election”). For this reason alone, “it is not by any means an ‘outlier’ in terms of
predictive value.” A9091 (Rebuttal Decl. of Prof. Gronke). And that is particularly true
because many of the factors that supposedly rendered the 2008 election “anomalous” will
again be factors in 2012:
[B]ecause President Obama will be on the ballot in 2012, that election will
present another ‘historic’ moment in that the first African American
president will be seeking to win a second term. Thus, many of the factors at
play in 2008 -- e.g., increased get-out-the vote efforts, and the intensity of
interest in the African American community -- will come into play again in
2012.
Id.
Moreover, even setting aside the specifics of the 2008 and 2012 general elections,
the record indicates that the 2008 general election was not a mere one-off phenomenon.
The trend of increased African-American usage of early in-person voting predated 2008
to some degree: African-American early voting rates in Florida exceeded white early
voting rates in 2004, as well. See A10092, 10104 (Am. Expert Report of Prof. Gronke).
And after the 2008 election, the rates of African-American usage of early in-person
voting in Florida have continued to exceed those of white voters to a statistically
significant degree. See, e.g., A9090 (Rebuttal Decl. of Prof. Gronke). Hence, it is not
true, in the words of Florida’s expert, that once the 2008 election is removed from the
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picture the rates of white and African-American early voting are “roughly comparable.”
A9041 (Expert Report of Prof. Hood). And in any event, “[t]he term ‘roughly
comparable’ is not an accepted term of art or standard for statistical comparisons in the
field of political science research.” A9090 (Rebuttal Decl. of Prof. Gronke). Rather,
“[t]he methodologically appropriate starting point is to determine whether the differences
are statistically significant.” Id.28 And, even discounting the 2008 election, the data
shows a clear and statistically significant “trend of higher usage [of early voting] over
time by African American voters in the Covered Counties and statewide.” Id.29
In short, rather than being an “outlier,” the evidence suggests that the 2008 general
election is best seen as a “game-changer” that simply magnified already nascent trends in
African-American preferences for early in-person voting. See A10069 (De Bene Esse
Dep. of Prof. Gronke).30 Indeed, Florida’s own expert witness acknowledges that the
28
Similarly, Florida’s reliance on a statement by the United States’ expert witness,
that “Black, White, and Hispanic voters all utilized early voting at roughly the same rates
both before and after the 2008 general election,” A7785 (Expert Report of Dr. Stewart), is
unavailing. That statement, Dr. Stewart said, was based on “interocular” or “visual”
observations, not on statistical tests. See A10680-82 (De Bene Esse Dep. of Dr. Stewart).
29
See A9090 (Rebuttal Decl. of Prof. Gronke) (“Data from the Covered Counties
show that African Americans utilized early in-person voting at a higher rate than Whites
in every election since the 2008 Primary. Statewide early in-person data show higher
African American early in-person voting rates not only in the 2008 presidential election,
but also in the 2004 presidential election, and the relative difference between the African
American and White rates in 2008 was greater than in 2004.”).
30
Although in a 2009 paper Professor Gronke himself described the 2008 election
as “anomalous,” see A10192, 10211 (Gronke, Hicks, & Toffey, N=1? The Anomalous
2008 Election and Lessons for Reform (2009)), he explained at his deposition that he did
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2008 election was not an outlier when compared to the relative rates of African-American
versus white early in-person voting in the four most recent federal elections in Florida.
A5965-66 (Hood Dep.). As such, there is no sound basis for disregarding the 2008
election in our evaluation of the effects of the new statute’s changes in early voting
procedures.
2. Having determined that African-American voters in Florida’s covered counties
are disproportionately likely to use the early voting days that would be eliminated under
the new law, we proceed to evaluate whether Florida’s early voting changes will impose a
materially increased burden on African-American voters’ effective exercise of the
electoral franchise relative to the benchmark practice. As we have already suggested, this
evaluation is complicated by the fact that the new law makes certain potential trade-offs
between the days and hours of early voting: it decreases the available days, but allows
local election officials to maintain the same total early voting hours and to enhance the
accessibility of those hours, if they so choose. And it requires a voting day on a Sunday.
That said, we do not yet know how the covered counties will decide to exercise their
discretion with respect to the early voting hours offered in their jurisdictions: under the
new law, election officials could choose to offer as many as 96 or as few as 48 hours of
so in the immediate wake of the 2008 election, without the benefit of data from the 2010
elections showing that the trend of increased African-American early voting had
continued. See A10051-53, 10077-79 (De Bene Esse Dep. of Prof. Gronke). The
“intention of the whole paper,” he explained, was simply to communicate that in 2009 it
“was too soon to draw conclusions” as to the effects of the 2008 election. Id. at A10068.
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early voting, meaning that the total hours might remain the same as under the benchmark
practice, or might be cut in half (or might end up somewhere in between).31
Florida urges us to assume that “the Covered Counties may seek to provide the
maximum early voting hours available under the Act (96 hours).” Fla. Br. 25. But
because Florida bears the burden of proving that its new law will be nonretrogressive, the
State must show -- not simply assume -- that given a menu of possible hours, its covered
counties will choose nonretrogressive ones. Florida has submitted no evidence, however,
that would permit us to predict with any confidence the number of early voting hours the
covered counties will offer. No covered county’s election supervisor has submitted a
county plan for preclearance. Most of the supervisors’ responses to questioning by the
defendants on this subject may at best be described as equivocal.32 And at least one
31
Likewise, although election officials could choose to enhance the accessibility of
the early voting schedule by offering early voting at times convenient to workers working
a standard 9 a.m. to 5 p.m. workday, they could instead choose to offer early voting at
times that are less accessible than the benchmark practice. Indeed, if they choose the 6-
hours-per-day minimum, it is likely that early voting would start after the workday starts
and would end before the workday ends.
32
See, e.g., A3400-3401, 3447-48 (Dep. of Jennifer Edwards, Collier County
Supervisor of Elections (“SOE”)) (testifying that she would “try[] to maximize the
convenience for the voter” and would provide 12 hours per day for the general election,
but not addressing other elections); A3846 (Dep. of Earl Lennard, Hillsborough County
SOE) (“I would look at the 12 hours utilization.”); A3999 (Dep. of Jeffrey Ussery, Hardee
County SOE) (testifying that he has not decided what hours to offer, but that he would
probably “stay open as many hours as [he] can,” provided that he “can make that
adjustment within [his] budget”); see also A8677 (Fla.’s Resps. to Joint Interrogs. of
Intervenors) (providing only that “Florida [] anticipates that the large and medium-sized
counties will offer a full 12 hours of early voting per weekday” (emphasis added)).
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covered-county supervisor indicated that she would not use the full 96 hours of early
voting, unless required to do so. See A3530-32 (Dep. of Lucretia Strickland, Hendry
County SOE). Moreover, Florida acknowledges that it “has not issued any rule, directive,
or guidance to Florida supervisors of elections . . . regarding the manner in which [they]
should exercise the discretion granted by HB 1355” to determine the number of early
voting hours in their counties. A8283 (Fla. Resp. to Req. for Admiss. No. 18).
In light of these considerations, and in light of the fact that the burden is on Florida
to prove that its new law will not have a retrogressive effect, we must proceed on the
assumption that the counties will utilize the minimum rather than the maximum permitted
hours.33 If the effects would be nonretrogressive even on that assumption, then we could
conclude that Florida has met its burden. But if they would be retrogressive at the
minimum number of hours, then the uncertainty as to whether more hours will be offered
(and whether those hours will be more or less accessible) means that Florida has not met
its burden.
33
Florida has proposed that, notwithstanding this concern, we should preclear its
early voting law because each county would subsequently be required to submit its
selection of early voting hours for preclearance. However, because the law explicitly
grants election supervisors discretion in selecting early voting hours, we cannot preclear it
unless we are persuaded that local supervisors would exercise that newfound discretion in
a way that would not result in retrogression. For the reasons laid out below, we are not so
persuaded. And in any event, the law grants election supervisors no discretion with
regard to the elimination of four days of early voting, which, as we explain below, is a
change that can have retrogressive effects.
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We conclude that Florida has failed to sustain its burden of proving that, if the
covered counties offer only 48 hours of early voting (i.e., only 6 hours per day) as the new
law permits, that change would not impose a material burden on -- and therefore a
retrogressive effect with respect to -- African-American voters’ effective exercise of the
electoral franchise. Under such circumstances, not only would the number of early voting
days be reduced by one-third (from 12 to 8), but the total available early voting hours
would be cut in half (from 96 to 48). Moreover, with only 6 hours available per day, it is
likely that early voting would start after the workday starts and would end before the
workday ends, making it even more inaccessible to many minority voters who have
inflexible work schedules. See A9142-43 (Decl. of Cynthia Slater, 2d Vice-President of
Florida NAACP). This dramatic reduction in a form of voting disproportionately used by
African-Americans would be analogous to (although certainly not the same as) closing
polling places in disproportionately African-American precincts. Although such action
would not bar African-Americans from voting, it would impose a sufficiently material
burden to cause some reasonable minority voters not to vote.
This conclusion is supported by testimony indicating that a two-week early voting
period is important to get-out-the-vote (GOTV) efforts in minority communities. See,
e.g., A9143 (Slater Decl.); A9227-28 (Decl. of Rev. Charles McKenzie, Florida state
liaison for the Rainbow PUSH Coalition).34 Record evidence suggests that such efforts
34
Having a two-week early voting period has also been essential to
coordinating the logistics of GOTV efforts in the African-American
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are important in enabling African-Americans “who want to vote but need help getting to
the polls” to exercise the franchise. A9237 (Decl. of Ella Kate Coffee, African-American
resident and GOTV volunteer in Hillsborough County); see A7693 (Expert Report and
Decl. of Russell Weaver, Ex. 2) (noting that disproportionately more minority households
in the covered counties have no motor vehicle available). With a substantially reduced
early voting period, third-party groups would not be able to assist minority voters as
effectively. See A9237 (Coffee Decl.). This, in turn, would likely make it more difficult
for those minority voters who rely on such efforts to make it to the polls. Florida has not
submitted any evidence to the contrary. Indeed, although Florida’s expert witness
initially hypothesized that early voters should be able to adjust to even such a dramatic
contraction in the early voting period, A9059-60 (Expert Report of Prof. Hood), he later
conceded that there is no empirical support for that claim, and that it was nothing more
than an “assumption” or “supposition” on his part, A5861, 5917-22 (Hood Dep.); see
community. Two weeks gives us enough time to find the people who want
to vote but need help getting to the polls and then arrange logistics for those
voters. This is especially true for volunteer organizations providing group
rides to the polls. For instance, in my work organizing African-American
churches during early voting leading up to the 2008 general election, . . .
[h]aving as many different early voting days as possible was crucial to the
success of our efforts to bring members of these African-American
churches’ congregations to the polls.
A9237-38 (Coffee Decl.).
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A9095 (Rebuttal Decl. of Prof. Gronke) (“I know of no empirical support for the
conclusion that voters will successfully adjust . . . under these conditions.”).35
Moreover, even if all of the voters who would have used the repealed days of early
voting did attempt to adjust to a shortened early voting schedule of only 48 hours over 8
days, that shift would create problems of its own for minority voting. In the 2008 general
election, for example, 71,670 voters -- 14,897 of whom were African-American -- cast
ballots in the covered counties during the early voting days that the new law has repealed.
See A7820-21 (Expert Report of Dr. Stewart, Attachs. L & M); see also A9054-57
(Expert Report of Prof. Hood) (showing that approximately one-third to two-fifths of
early voters voted in the first (repealed) week of early voting). According to testimony in
the record, a shift of that magnitude to the remaining early voting days would lead to
substantially increased lines, overcrowding, and confusion at the polls, which would in
turn discourage some reasonable minority voters from waiting to cast their ballots. See,
e.g., A3170-71, 3183-87 (Dep. of Harry Sawyer, Monroe County SOE); A3744-45, 3748
(Dep. of Earl Lennard, Hillsborough County SOE).36 Indeed, election officials in Florida
35
For the same reason, we are unpersuaded by Florida’s speculation that affected
voters in the covered counties will easily be able to shift to other methods for casting a
ballot, such as voting absentee or voting at a precinct on election day.
36
This contrasts with our discussion of the inter-county mover changes, which we
conclude are unlikely to cause a similar problem. As we note there, unlike the large
number of people who vote during the first week of early voting, the number affected by
the inter-county mover changes is quite small, and so unlikely to materially increase lines
at polling places. See infra Part II.C.2.
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have testified that an extensive early voting period is necessary because Florida’s
“electoral infrastructure is completely maxed out,” A440 (House State Affairs Comm.
(Apr. 1, 2011) (Statement of Ion Sancho, Leon County SOE)), such that the State “would
not be able to process record numbers of voters” in a substantially shorter time frame,
A976-78 (Senate Rules Comm. (Apr. 15, 2011) (Sancho Statement)).37 Florida
legislators, too, have warned that a “shortened period of early voting will cause
congestion and long lines in populous areas of the state, including predominantly African-
American neighborhoods in Hillsborough County,” and will thereby “discourage
[minority] voters from voting.” A9108 (Decl. of Sen. Arthenia Joyner).
Florida counters that there is relatively little definitive evidence regarding how
early voting actually affects overall voter turnout. This observation is accurate, given the
fact that early voting itself is a relatively recent phenomenon. But the problem for Florida
is that, under the Voting Rights Act, the State bears the burden of proving that its action
will not have a retrogressive effect; the defendants do not have to prove that it will have
such an effect. See Bossier Parish I, 520 U.S. at 480 (“Section 5 . . . imposes upon a
37
We recognize that some election officials have expressed confidence that they
will be able to accommodate a higher concentration of voters in a shortened early voting
period, but that belief was generally premised on the assumption that 12 hours of early
voting will be provided on each of the 8 days of the early voting period, and that the hours
provided will be more accessible than the benchmark to voters working the standard 9
a.m. to 5 p.m. workday. See, e.g., A3846-47, 3859 (Dep. of Earl Lennard, Hillsborough
County SOE). In any event, we credit the record testimony indicating that a reduction of
the early voting period to a mere 48 total hours would lead to substantially increased
lines, overcrowding, and confusion at the polls.
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covered jurisdiction the difficult burden of proving the absence of discriminatory purpose
and effect.”). This is particularly so when it has already been shown -- as it has been here
-- that a voting change does, in fact, disproportionately harm African-American voters.
Hence, without some evidence indicating that minority voters would be able to adapt to
such a substantial reduction in early voting hours, the State cannot justify a grant of
preclearance. Florida has submitted no such evidence, whether empirical, anecdotal, or
otherwise. Indeed, the most that Florida is willing to assert is that the “vast majority” --
but apparently not all -- of those African-American voters who would have voted during
the repealed days “will still vote.” Fla. Br. 25.
Meanwhile, the academic scholarship and commentary is currently in a state of
flux as to how the availability of early in-person voting affects overall voter turnout. The
consensus prior to the 2008 election appears to have been that early in-person voting was
a convenience that had an “insignificant or marginal effect on increasing the likelihood
[that] an individual will vote.” A10131 (Robert Stein & Greg Vonnahme, Early,
Absentee, and Mail-in Voting, in T HE O XFORD H ANDBOOK OF A M. E LECTIONS & P OL.
B EHAVIOR (Jan Leighly, ed., 2010), at 185); see A5496 (Stewart Dep.) (“[T]he research
up until around 2008 . . . is that, in general, early voting procedures make voting more
convenient for people who look like they have a . . . propensity to vote, but do[] not
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generally increase turnout overall.”); see also A9093-95 (Rebuttal Decl. of Prof.
Gronke).38
According to the intervenors’ expert, however, “[t]he 2008 presidential and
subsequent elections have challenged the conventional wisdom [regarding early voting],
primarily because of changing voting patterns in the South.” A10091 (Am. Expert Report
of Prof. Gronke). And the United States’ expert further states that “the issue that
[post-2008] research raises is whether the use of early voting in 2008 may . . . have been
related to a surge in turnout in 2008. So there may be something new afoot.” A5497
(Stewart Dep.). Moreover, even if early voting by itself does not affect overall voter
turnout, there is evidence that it may do so when combined with other factors, such as
GOTV drives. Indeed, “[t]here is a growing literature that takes a more nuanced
approach to examining the relationship between convenience voting and turnout,
conjecturing that although reforms may not increase overall participation, they may . . .
have an impact . . . when combined with party mobilization efforts.” A7926 (Paul
Gronke et al., Convenience Voting, 11 A NN. R EV. P OL. S CI. 437, 443 (2008)); see A8009
(Paul Gronke, Early Voting Reforms & Am. Elections, W M. & M ARY B ILL OF R TS. J. 423,
38
Although Professor Gronke contended in his rebuttal declaration that “his own
comprehensive review of the literature in 2008” showed that “convenience voting has a
small but statistically significant impact on turnout, with most estimates of the increase in
the 2%-4% range,” A9094 (Rebuttal Decl. of Prof. Gronke), during his de bene esse
deposition he backed off that claim, admitting that he “cannot put [his] finger on one
particular statement” in any of the 2008 or pre-2008 literature “that indicates that early in-
person voting specifically has a relationship to overall turnout.” A9986 (De Bene Esse
Dep. of Prof. Gronke); see id. at A9981-83.
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432 (2008)) (stating that “[e]nough research has accumulated” for scholars to conclude
that early voting “does encourage regular voters to participate in lower intensity contests
that they might otherwise skip”); A9094 (Rebuttal Decl. of Prof. Gronke) (stating that,
“[s]ince non-habitual voters are less likely to vote, early or on election day, convenience
may have a significant and positive effect on their decision to vote” as well). In short, at
the very least it can be said that “there is not currently a consensus . . . that there is no
effect of early in-person voting on turnout.” A9984 (De Bene Esse Dep. of Prof.
Gronke).
Moreover, even if the (still developing) academic scholarship could be read in
Florida’s favor, it would still be insufficient to carry Florida’s burden of proof. The
literature that Florida cites addresses only the question of how adding early voting days
affects overall voter turnout. It does not address the specific question before us: how
decreasing an established early voting period from 12 days to 8 days (and from 96 hours
to 48) will affect African-American voter turnout. Hence, even if the addition of early
voting days does not significantly increase turnout, “it is not methodologically sound to
assume that there will . . . be little or no impact on overall turnout when voters (who have
habituated to early in-person voting) face a loss of previously available voting days.”
A9095 (Rebuttal Decl. of Prof. Gronke). Indeed, common sense suggests the opposite.39
39
Although the Justice Department has previously precleared decisions by some
covered jurisdictions to shorten their early voting periods, those cases involved
substantially different changes from those at issue here. See [128] United States’ Notice
in Resp. to Section 3(A) of the Court’s June 22, 2012 Order (citing, e.g., Alabama
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Finally, although we acknowledge that Florida’s new early voting statute makes
some ameliorative adjustments in weekend early voting even at the minimum number of
hours, we conclude that those changes would not outweigh the negative effects on GOTV
drives and lines at the polls that we have discussed above. As discussed above, the new
statute mandates a Sunday of early voting that was not previously offered in any of the
covered counties. Thus, even if the covered counties choose to offer the minimum 6
hours per day of early voting, they would still be required to offer 6 hours of voting on the
Sunday nine days before Election Day. And given the importance of Sunday early voting
for “souls to the polls” drives in the African-American community, see infra Part II.B.3,
that adjustment can be expected to have some positive effects on the ability of African-
Americans to reach the polls.
Nonetheless, those 6 hours of Sunday early voting would represent the only
ameliorative aspect of the new law if the covered counties were to implement it by
(eliminating one of two days of on-site absentee voting, and finally eliminating the
procedure entirely upon a finding that “the procedure was little used by voters” and that
absentee balloting would still be available at another location); Florida (issuing an
executive order allowing counties to suspend early voting after a tropical storm, but
requiring them “to resume early voting as soon as possible after emergency officials
advised that it was safe”); Texas (changing the start date for the in-person early voting
period from 20 days to 17 days prior to an election, and further reducing the early voting
period for municipal elections); Georgia (reducing the early voting period from 45 days to
21 days)); cf. A10189-90 (Gronke blog post, EVIC, More Thoughts on the Changes in
Ohio (July 29, 2011) (indicating approval of Ohio’s reduction from 4 to 2 weeks of early
voting)); A10187 (Gronke blog post, EVIC, Georgia Improves its Early Voting System
(Apr. 13, 2011) (indicating approval of Georgia’s reduction from 45 to 21 days));
A10026-28 (De Bene Esse Dep. of Prof. Gronke) (describing approximately 14 days as
the ideal early voting period).
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choosing the bare minimum number of hours. Moreover, they would be accompanied by
a net decrease of 2 hours on each Saturday as compared to the benchmark.40 Overall, we
are not persuaded that merely shifting one of the remaining 8 days to a Sunday would
make up for a 4-day and 48-hour decrease in early voting.
In sum, Florida is left with nothing to rebut either the testimony of the defendants’
witnesses or the common-sense judgment that a dramatic reduction in the form of voting
that is disproportionately used by African-Americans would make it materially more
difficult for some minority voters to cast a ballot than under the benchmark law. We
therefore conclude that Florida has not met its burden of proving that removing a third of
the days and half of the hours from its benchmark early voting procedures would have a
nonretrogressive effect on minority voting rights in the covered counties.
3. Although we have concluded that we cannot preclear Florida’s early voting
changes at this time because those changes authorize the covered counties to offer a
statutory minimum number of hours that may result in retrogression, it is possible that the
counties will instead, as Florida predicts, opt to provide substantially more hours than that
minimum. As we discuss below, under at least one such scenario we are persuaded that
40
As we have explained, the prior statute required an aggregate of 8 hours for each
of the two early voting weekends, for a total of 16 weekend hours. The benchmark
practice was to offer 8 hours on each Saturday and none on Sunday. Hence, if the
counties offer only 6 hours of early voting per day, they will offer 2 fewer hours on each
Saturday. Although the total weekend hours would be 18 (6 hours on two Saturdays and
one Sunday) rather than the benchmark 16 (8 hours on two Saturdays and none on
Sunday), the increase would be solely the consequence of adding the Sunday.
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Florida would likely satisfy its burden of showing a nonretrogressive effect: that is, if the
covered counties were to provide the maximum authorized 96 hours on a standard 7 a.m.
to 7 p.m. schedule. When a court finds that it cannot preclear one iteration of a submitted
plan, but may be able to preclear a modified version, the Supreme Court has expressed
approval for issuing a kind of “conditional order” indicating the circumstances under
which approval may be obtained. See, e.g., City of Port Arthur, 459 U.S. at 167-68(expressing approval of the district court’s “conditional order” denying preclearance of
the expansion of a city’s borders unless the city agreed to eliminate a majority-vote
requirement for certain elections); City of Richmond, 422 U.S. at 370 (stating that the
district court in City of Petersburg, 354 F. Supp. 1021, “was correct in conditioning
approval of the annexation upon the adoption of the plan to elect councilmen by wards”).
We do so here.
As we have noted above, although HB 1355 mandates a reduction in early voting
days from 12 to 8 days, it authorizes the counties to offer a maximum of 12 hours on each
of those early voting days -- as compared to no more than 8 hours per day under the
benchmark. (The counties are required to keep the polls open for 12 hours on Election
Day itself. Fla. Stat. § 100.011(1) (2011).) Under those circumstances, voters would
have exactly the same total number of hours for early voting as under the benchmark law:
96 hours. Those hours would simply be distributed over a fewer number of days.41
41
Although 12 hours of early voting per day is a significant number of hours, the
record persuades us that it would not be difficult or unusual for the covered counties to
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We do not discount the possibility that the reduction in days -- considered alone --
would make it more difficult for some voters to get to the polls. But not all reductions in
early voting days have retrogressive effects, as the Justice Department has made clear by
preclearing reductions in prior -- albeit distinguishable -- cases. See A9002-03
(preclearing Florida’s 2005 shortening of the early voting period from 15 to 14 days);
[128] United States’ Notice in Resp. to Section 3(A) of the Court’s June 22, 2012 Order
(noting preclearances involving, e.g., Texas (changing the start date for the in-person
early voting period from 20 days to 17 days prior to an election); Georgia (reducing the
early voting period from 45 days to 21 days)).
More important, we cannot consider the reduction in days alone: We must
consider not only the effect of the “negative” aspects of the changes in law, but also of its
ameliorative aspects. See City of Richmond, 422 U.S. at 370-71; DOJ Br. 68 (“The
offer that many hours. As we have mentioned, all Florida counties are already required to
offer voting for 12 hours (from 7 a.m. to 7 p.m.) on Election Day, Fla. Stat. § 100.011(1)
(2011), and several supervisors of elections in the covered counties have testified that
they would like to offer 12 daily hours of early voting as well, at least for the upcoming
general election, see A3400-3401, 3447-48 (Edwards Dep.); A3999 (Ussery Dep.).
Moreover, several non-covered counties in the same geographic area as the covered
counties -- and which represent a broad cross-section of various sizes and population
densities -- have already adopted 12 daily hours of early voting under the new statute.
See Charlotte County, http://www.charlottevotes.com/ (offering 12 hours per day in both
the 2012 primary and general elections); Miami-Dade County,
http://www.miamidade.gov/elections/ vote_early.asp (offering 12 hours per day in the
August 2012 primary); Pinellas County, http://www.votepinellas.com/ (same); Broward
County, http://www.browardsoe.org/ content.aspx?id=152 (offering 12 hours per day in
the November 2012 general election); Pasco County,
http://www.pascovotes.com/pasevot.asp (same).
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Department and courts consider whether a proposed change’s negative impact on
minority voters has been offset by ameliorative steps taken by the jurisdiction.”). First
among those, of course, is the tradeoff of hours for days. Although voters would not be
able to vote during 4 days that were previously available, they would be able to vote
during 4 hours each day that were not. Moreover, if election supervisors utilize a
standard 7 a.m. to 7 p.m. voting day, this means that weekday voters would not have to
vote during working hours, but could instead get to the polls before or after work --
during the morning and evening hours that the record suggests would be most convenient
for weekday voters and that would be more extended than those offered in any recent
election. (Accordingly, when we conclude that there is a scenario that is likely to be
nonretrogressive, that scenario includes a 7 a.m. to 7 p.m. schedule.) As the supervisor of
elections in Hillsborough County stated, “some hours are more accessible to people than
other hours,” and both “[t]he early morning hours earlier in the day” and hours “in the
afternoon . . . following work” can be helpful for some voters who “have the opportunity”
to vote at those times. A3765 (Lennard Dep.); see A9095 (Rebuttal Decl. of Prof.
Gronke) (“Certainly more hours of voting per day can benefit voters, and there are studies
. . . showing the positive benefits of expanded hours outside of the normal business
day.”); A10511 (testimony from an election official in a non-covered county that, “when
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the polls open [at] 7 a.m.,” there will generally “be lines that have already formed” with
voters who are “waiting for the precinct to open”).42
Nor is the increase in weekday early voting hours the only ameliorative factor we
must take into account. As we have discussed, the new early voting statute requires the
covered counties to offer early voting for at least six hours on the Sunday nine days
before Election Day. See Fla. Stat. § 101.657(d) (2011). Although the benchmark statute
permitted counties to offer early voting on that Sunday, as well as on the Sunday
immediately before Election Day, see Fla. Stat. § 101.657(d) (2010), none of the covered
counties ever did so. Hence, the benchmark practice was no Sunday voting. See Riley,
553 U.S. at 421; City of Lockhart, 460 U.S. at 132. Although the intervenors initially
took a contrary position, they acknowledged in a post-argument filing that “[t]he change
eliminating the discretion to conduct ‘last Sunday early voting’ is not at issue in the
retrogression analysis since the Covered Counties have not conducted early voting on that
day.” [134] Defendant-Intervenors’ Supplemental Br. Regarding Preclearance Standards
for Enabling Legislation at 2 n.1 (emphasis added).43 Accordingly, the new statute
42
Early voters also tend to cluster around lunch hours, see A3765 (Lennard Dep.);
A9179 (Sancho Decl.), but lunchtime early voting was also generally offered under the
benchmark practice in the five covered counties. See supra note 17.
43
In any event, we note that the best evidence the defendants were able to marshal
regarding what the covered counties would do in the event the benchmark were to remain
in effect was that supervisors of elections have “expressed a willingness to consider
Sunday early voting in Hillsborough County.” A9109 (Joyner Decl.). An expression of
“a willingness to consider” is too speculative to support a finding of retrogression.
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provides at least a net 6-hour increase in Sunday early voting compared to the relevant
benchmark. And if the covered counties offer the maximum number of hours of early
voting each day, as we assume for purposes of this subpart, the result would be an
additional 12 hours of Sunday early voting that were never before offered in those
counties.
The addition of Sunday voting is important -- as the United States and intervenors
themselves emphasized in initially arguing that the relevant benchmark should include the
unrealized potential for last-Sunday voting under the prior statute. As the defendants
stressed, many African-American churches organize “souls to the polls” drives to
transport their congregants to early voting sites on that Sunday, see A9109 (Joyner Decl.);
A9193-94 (Decl. of Rev. Thomas Scott), and that Sunday is therefore disproportionately
used by African-American voters in jurisdictions that have early voting on that day, see
A10098 (Am. Expert Report of Prof. Gronke); see also DOJ Br. 51; A9225 (Decl. of
Rev. Charles McKenzie). But while the defendants have argued that it is the Sunday
immediately before Election Day that is particularly important, there is evidence in the
record to suggest that opening the polls on the previous Sunday would also facilitate
voting by African-American voters. For example, even Senator Joyner, who opposed the
reduction in early voting days, testified that if HB 1355 “were precleared and were put
into effect in Hillsborough County,” she would “[a]bsolutely . . . expect the
predominantly African-American churches in Hillsborough County to organize Souls to
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the Polls drives” on that day. A9814 (Joyner Dep.). Likewise, Professor Gronke agreed
that he has “no reason to believe that [the additional Sunday] would not be used” by
African-American voters in such “souls to the polls” drives. A10012-13 (De Bene Esse
Dep. of Prof. Gronke). As a result, we can expect that there will be at least some
ameliorative effects from the new law’s addition of the mandatory Sunday.
We further note that, for a county that offers the maximum 12 hours per day, the
new law not only adds the opportunity to vote for 12 hours on the Sunday that falls two
weekends before the election, but also increases the overall number of weekend hours on
both that weekend and the last weekend before the election. Under the benchmark
practice, the covered counties offered early voting for 8 hours on each Saturday, and not
at all on Sunday, yielding 16 total weekend hours of early voting. But if a county offers
the maximum hours under the new statute, it will provide early voting for 12 hours on
each weekend day (i.e., on both Saturday and Sunday) approximately one week before the
election, and for 12 hours on the last Saturday before the election. The total would then
be 36 weekend hours of early voting (12 hours on each of 3 weekend days), for a net gain
of 20 more weekend hours of early voting than under the benchmark.44
44
As noted supra note 40, however, there would be no net addition beyond that
attributable to the addition of the Sunday if a county offered only the minimum 6 hours
per day. Indeed, under that scenario, the county would offer 2 fewer hours on each
Saturday (6 rather than the previous 8). Although the total weekend hours would be 18
rather than 16, the increase would be solely the consequence of adding the Sunday.
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Like the added Sunday, those additional weekend hours of early voting are
significant. Florida election officials have testified, based on their experience, that
expanded weekend hours would provide increased accessibility for many minority voters.
See, e.g., A3447-48, 3450 (Edwards Dep.); A3611-12, 3770, 3846-47 (Lennard Dep.);
A10488 (Dep. of Ion Sancho, Leon County SOE). Florida legislators, including several
of the legislators who opposed the early voting changes and who are now intervenors in
this action, have concurred in that assessment. See A9801 (Joyner Dep.); A10254-55
(Cruz Dep.). And even the intervenors’ expert, Professor Gronke, concedes that
expanded early voting hours can be an added convenience for many voters. See A6161
(Gronke Dep.); A9095 (Rebuttal Decl. of Prof. Gronke); A10015 (De Bene Esse Dep. of
Prof. Gronke); see also A10187 (EVIC blog post by Professor Gronke, stating that
“weekend early voting” is “a potential inconvenience for officials to be sure, but one
which citizens will find very helpful”).
In sum, the record evidence persuades us that, if the covered counties offer the
maximum available early voting hours each day on a standard 7 a.m. to 7 p.m. schedule,
the negative effect of reducing the number of days from 12 to 8 would likely be offset by
the ameliorative effects of adding non-working weekday hours, a Sunday, and additional
weekend hours.45
45
As indicated in the previous section, however, we are not persuaded that merely
shifting one of the remaining 8 days to a Sunday would make up for the 4-day reduction if
the total early voting hours were simultaneously cut in half. See supra Part II.B.2.
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Moreover, many of the concerns that we discussed in Part II.B.2 in connection
with a contraction of the early voting period to only 48 total hours are not likely to
materialize (certainly not to the same extent) if the full 96 hours of early voting are
maintained on a standard 7 a.m. to 7 p.m. schedule. For example, although
representatives and volunteers from minority voting rights groups have testified that “a
two-week period has . . . been essential to coordinating the logistics of GOTV efforts in
the African American community,” A9237 (Coffee Decl.); see A9227 (McKenzie Decl.),
the record evidence suggests that GOTV groups could adjust to a redistribution of the
total 96 hours over a different number of days, including weekend days and a “souls-to-
the-polls” Sunday. Indeed, one of the central concerns expressed by such groups is that
minority voters “frequently contend with issues such as lack of transportation or
inflexible work and family schedules, which make it difficult to reach the polls on
Election Day.” A9143 (Slater Decl.). Expanding convenient non-working weekday and
weekend voting hours should therefore help third-party efforts to provide transportation
to the polls for such voters.
The same is true of concerns regarding overcrowding and confusion at polling
places on the remaining early voting days (and Election Day) that could result from
reducing the total number of early voting days. This problem should be alleviated, if not
entirely eliminated, by the simultaneous expansion of early voting hours to 12 hours per
day on a 7 a.m. to 7 p.m. schedule. Indeed, election officials have testified that they
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believe that, “by expanding the hours,” they would be able to “accommodate [the] early
voters” who may have been displaced by the elimination of the first five days of the old
early voting period. A3859 (Lennard Dep.).46 For the first time, early voters in the five
covered counties would have the benefit of an early voting period capturing the morning
and evening hours on both ends of the standard 9 a.m. to 5 p.m. workday.
For the foregoing reasons, we conclude that if Florida and the covered counties
were to submit a preclearance plan that offered early voting for 12 hours per day, from 7
a.m. to 7 p.m. over an 8-day early voting period, including one previously-unavailable
Sunday, they would likely satisfy their burden of proving that the overall effect of the
early voting changes would be nonretrogressive with respect to minority voters.47 We do
not, however, reach any conclusions about other permutations of early voting hours that
the covered counties might offer. Because at this point we do not know how many early
voting hours the covered counties will offer or which specific hours they will provide,
and because we find that retrogression may well follow from the statute as written, we
46
One supervisor from a non-covered county did say that he did not think voters
would adjust to the expanded early voting hours because peak early voting times are not
typically in the early morning or after dark. See A9179 (Sancho Decl.). This observation
is of little import, however, because early morning and evening voting hours were rarely
offered under the benchmark early voting plan. And even that supervisor acknowledged
that “[u]sually, we have a line when the polls open [on Election Day at] 7 a.m.” A10511
(Sancho Dep.).
47
We note that Florida and the covered counties may also submit their early voting
plans to the Attorney General for administrative preclearance.
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cannot now conclude that Florida has met its burden of demonstrating that its statewide
early voting changes will have a nonretrogressive effect in the covered counties.
C. Inter-County Mover Changes
We next address the changes in the procedures for so-called “inter-county movers”
-- registered voters who move from one Florida county to another, fail to notify the
supervisor of elections of their address change in advance of the election, and then seek to
vote in their new precinct. The relevant HB 1355 amendment provides that, with the
exception of active uniformed services voters and members of their families, a registered
voter “whose change of address is from outside the county [but inside the state] may not
change his or her legal residence at the polling place and vote a regular ballot,” Fla. Stat.
§ 101.045(2)(b) (2011), as he could under previous law, see Fla. Stat. § 101.045(2)(b)
(2010). Instead, “such elector is entitled to vote a provisional ballot” after completing a
“Provisional Ballot Voter’s Certificate and Affirmation.” Fla. Stat. § 101.045(2)(b)
(2011). Under Florida law, such ballots “shall be counted unless the canvassing board
determines by a preponderance of the evidence that the person was not entitled to vote.”
Id. § 101.048(2)(a) (emphasis added). As we explain below, Florida represents that this
means that in the event that a canvassing board reaches the end of the canvassing period
and has not reviewed some subset of the provisional ballots cast, then the unreviewed
ballots must be counted as eligible ballots because the canvassing board would not have
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“determine[d] by a preponderance of the evidence that the person[s] w[ere] not entitled to
vote.” Id.
1. We again begin by finding that the inter-county mover changes will
disproportionately affect minority voters, because minority voters have been
disproportionately more likely to use the benchmark procedures that allowed voters to
make inter-county address changes at the polls and then cast a regular ballot. See A8901
(Supplemental Decl. of Dr. Stewart) (“[M]inority voters are more likely to avail
themselves of the law that is still in effect in the five covered counties, which allows
registered voters who have moved between counties to simultaneously change their
address and vote a regular ballot in their new home county.”). In the most recent
elections in Florida’s covered counties for which there is data, the voters who moved
inter-county and updated their addresses on or about Election Day were
disproportionately members of a minority group. Id. at A8907-09 (Attach. 5). More
specifically, African-American and Hispanic voters were statistically more likely than the
average voter to be inter-county movers in the 2008 and 2010 elections, both on Election
Day and during the early voting period, while white voters were statistically less likely to
be inter-county movers. Id.48
48
This data was compiled and analyzed by the expert witness for the United States,
Dr. Stewart. It is derived from the results of a database query regarding: (a) early voters
who moved into a covered county and changed their address during the early voting
period; and (b) voters who moved into a covered county and changed their address on or
shortly after Election Day. See A8896 (Supplemental Decl. of Dr. Stewart); A9035 (E-
mail from Wren Fowler, VR Systems (Feb. 16, 2012)). In reaching conclusions based on
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For example, in the 2008 general election, African-American voters comprised
only 13.3% of the total non-moving voters in Florida’s covered counties, but made up
19.3% of all inter-county movers in those counties. Id. at A8908. Hispanic voters
comprised only 10.1% of the non-movers, but accounted for 14.5% of the inter-county
movers. Id. Meanwhile, white voters made up 71.3% of the non-movers, but only 58.8%
of the inter-county movers. Id. These and other data points allowed the United States’s
expert witness, Dr. Charles Stewart, to conclude that “[i]n every single calculation [in his
supplemental report], the percentage of black and Hispanic voters among the ‘movers’ is
greater than the percentage of black and Hispanic voters among the non-moving voters
who used that mode [i.e., early voting or Election Day voting].” Id. at A8899. By
contrast, “[i]n every calculation except one [the 2010 primary], the percentage of white
this data, Dr. Stewart was required to make certain assumptions about whether the voters
in the data set had actually changed their addresses at the polls, rather than contacting
election officials and updating their addresses before going to vote. See A10648-52 (De
Bene Esse Dep. of Dr. Stewart). As such, it is possible that the data may over-estimate
the numbers of inter-county movers to some degree. The data set may also be over-
inclusive because the results of the database query include some voters whose addresses
were changed in the voter registration database shortly after Election Day. Dr. Stewart
reasonably assumed, however, that many of those voters changed their addresses on or
slightly before Election Day, and that election officials simply did not update the database
until after the election. See id. at A10653-54. Ultimately, we are persuaded that,
although the data set may not be perfect, it provides an “apt proxy for the group of voters
that are affected by the intercounty mover changes.” Id. at A10655-56. Most important
for our purposes, even if the total estimated number of inter-county movers is slightly
overstated, there is no reason to believe that the racial proportions of those voters would
be affected in any way. And as we explain below, even the more limited data examined
by Florida’s own expert confirms the conclusion that, as a percentage of their overall
demographic population, African-American and Hispanic voters are more likely than
white voters to seek to change their addresses at the polls.
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voters among the movers is less than the percentage of white voters among the
non-moving voters who used that mode.” Id.; see also A10667 (De Bene Esse Dep. of
Dr. Stewart) (“It’s clear to me that blacks, whites, and Hispanics avail themselves of these
procedures at different rates than the underlying voting population.”).49
Indeed, even Florida’s expert witness, Professor Hood, recognized that in the
elections that he examined, the minority rates of inter-county movers in the covered
counties were proportionately higher than the white rates. Professor Hood’s data set is
less complete than Dr. Stewart’s, because he examined data from only three of Florida’s
five covered counties -- excluding Hillsborough County, the most populous of the five --
and two of those counties claimed not to have any inter-county movers in the election
years that he analyzed. See A9073 (Expert Report of Prof. Hood); see also A5954 (Hood
Dep.) (admitting that his data set is only “[a] quarter complete”). Nonetheless, Professor
Hood conceded that in each of the elections he examined, the inter-county mover rate of
“some minority group [whether African-American or Hispanic] is higher than the white
rate and in most of [the elections] all of the minority rates are higher than the white rate.”
A5958-59 (Hood Dep.) (emphasis added).50
49
These disparities are statistically significant with the exception of the 2010
primary election, which had very low overall voter turnout. See A8900-01 (Supplemental
Decl. of Dr. Stewart); see also id. at A8910 (Attach. 6, showing results of chi-squared
tests of statistical significance).
50
For example, according to Table 4.4. in Professor Hood’s expert report, in the
2008 general election, 0.125% of whites were inter-county movers in Collier County,
compared to 0.394% of African-Americans and 0.326% of Hispanics. A9073 (Expert
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The bottom line is that, on average, minority voters in Florida’s covered counties
are approximately twice as likely as white voters in those same counties to move inter-
county and seek to update their addresses at the polls. From 2008 through 2010, 0.44% of
African-American voters and 0.50% of Hispanic voters in the covered counties were
inter-county movers, compared to only 0.21% of white voters. See Findings of Fact
¶¶ 85-88. Accordingly, if the inter-county mover changes took effect in the covered
counties, African-American and Hispanic voters would be disproportionately affected.
Florida correctly points out that, even if minorities are disproportionately affected,
the total number of inter-county movers has historically been quite small, and the number
who are minorities is even smaller. Indeed, the high-water mark for inter-county movers
was the 2008 general election, when 2,240 voters (approximately 750 of whom were
minorities) updated their addresses at the polls in the covered counties. See A8908
(Supplemental Decl. of Dr. Stewart). This is out of a total of over 530,400 voters who
voted in that election in the covered counties. See id. But while the number of affected
voters will have an impact on the burden analysis we conduct in the following section, we
note again that a voting change with a retrogressive effect does not warrant preclearance
merely because it affects a small number of voters. See supra Part II.A.4.
Report of Prof. Hood). Similarly, in the 2010 general election, 0.103% of whites filled
out inter-county change-of-address affirmations in Collier County, compared to 0.374%
of African-Americans and 0.290% of Hispanics. Id.
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2. To be retrogressive, however, a ballot access change must not only affect
proportionally more minority voters; it must also impose a burden material enough that it
will likely cause some reasonable minority voters not to exercise the franchise.
Accordingly, we must evaluate the burdens imposed by the inter-county mover changes to
determine whether they are likely to dissuade reasonable minority voters in Florida’s five
covered counties from casting a ballot, or are likely to result in those minority voters’
ballots not being properly tabulated. Although evidence has been submitted on both sides
of those questions, we are persuaded by a preponderance of the evidence that the inter-
county mover changes will not have impermissibly retrogressive effects on minority
voters. This conclusion is based on the understanding, however, that consistent with the
language of Florida statutory law and the interpretation the State has proffered to the
court in this case, in the event that a canvassing board reaches the end of the canvassing
period and has not reviewed some subset of the provisional ballots cast, the unreviewed
ballots shall be counted as eligible ballots because the canvassing board would not have
“determine[d] by a preponderance of the evidence that the person[s] w[ere] not entitled to
vote.” Fla. Stat. § 101.048(2)(a) (2011).
First, the record establishes that compliance with the new inter-county mover
paperwork requirements will not take materially longer than compliance with the prior
requirements. Under the benchmark statute, a voter who moved to another county
without notifying the relevant election official and then sought to vote in his or her new
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county of residence was required to complete a change of address affirmation in
“substantially the [same] form” set forth in Fla. Stat. § 101.045(2)(a) (2010), which was
as follows:
Under penalties for false swearing, I, (Name of voter), swear (or affirm)
that the former address of my legal residence was (Address of legal
residence) in the municipality of __ , in __ County, Florida, and I was
registered to vote in the __ precinct of __ County, Florida; that I have not
voted in the precinct of my former registration in this election; that I now
reside at (Address of legal residence) in the Municipality of __ , in __
County, Florida, and am therefore eligible to vote in the __ precinct of __
County, Florida; and I further swear (or affirm) that I am otherwise legally
registered and entitled to vote.
_____(Signature of voter whose address of legal residence has changed).
Fla. Stat. § 101.045(2)(a); see, e.g., [129] Fla. Notice of Filing of Documents Re: Inter-
County Address Changes at the Polls, Ex. A (Collier County change of address
affirmation form).51 After completing the form, the voter was then entitled to cast a
regular ballot.
Under the new law, inter-county movers must instead complete a “Provisional
Ballot Voter’s Certificate and Affirmation,” as set forth in Fla. Stat. § 101.048(3) (2011).
The new form must be “in substantially the [same] form” as the following:
I do solemnly swear (or affirm) that my name is __ ; that my date of birth is
__ ; that I am registered and qualified to vote in __ County, Florida; that I
am registered in the __ Party; that I am a qualified voter of the county; and
that I have not voted in this election. I understand that if I commit any
51
Although change of address affirmations were not uniform throughout Florida,
all counties were required to substantially comply with the above example. See Fla. Stat.
§ 101.045(2)(a) (2010).
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fraud in connection with voting, vote a fraudulent ballot, or vote more than
once in an election, I can be convicted of a felony of the third degree and
fined up to $5,000 and/or imprisoned for up to 5 years.
(Signature of Voter)
(Current Residence Address)
(Current Mailing Address)
(City, State, Zip Code)
(Driver’s License Number or Last Four Digits of
Social Security Number)
Fla. Stat. § 101.048(3) (2011); see, e.g., [129] Fla. Notice of Filing of Documents Re:
Inter-County Address Changes at the Polls, Ex. D (Collier County Provisional Ballot
Certificate and Affirmation).52 After completing the affirmation, the inter-county mover
is then entitled to cast a provisional ballot. Fla. Stat. § 101.048(1)-(2) (2011).
As a side-by-side comparison demonstrates, the form required under the new law
requests essentially the same information as the prior form, including the voter’s name,
current and prior address of residence, and an affirmation that the voter is legally
registered and qualified to vote.53 See A4068 (Dep. of Maria Matthews, Assistant Gen.
Counsel, Fla. Dep’t of State) (“[R]eally [inter-county movers are] not filling out . . . any
more information or any additional documentation than they would have if they had
moved in from another county previously.”). Although under the prior procedure the
52
Like change of address affirmations, provisional ballot certificates and
affirmations are not identical in each of Florida’s counties, but they must all be “in
substantially the [same] form” as the above example. Fla. Stat. § 101.048(3) (2011).
53
Neither the United States nor the intervenors have raised an issue in this litigation
concerning the fact that the new form also requests a driver’s license number or social
security number, and we therefore do not address that point.
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inter-county mover would then cast a regular ballot, while now the voter must cast a
provisional ballot, the latter is in all physical respects identical to a regular ballot. Fla.
Stat. § 97.021(29) (defining “provisional ballot” to simply mean “a conditional ballot”);
Fla. Admin. R. 1S-2.037(2)-(3) (providing guidelines for provisional ballot certificates
and affirmations); see Oral Arg. Tr. 237:19 - 238:24 (representation by counsel for
Florida that provisional ballots look the same as regular ballots, and that “[a]ll Florida
voters vote by paper ballot”). The only difference -- from a procedural point of view (but
see further discussion infra) -- is that instead of being fed into a machine for tabulation, a
provisional ballot is placed into a secrecy envelope, which is then sealed in a provisional
ballot envelope. Fla. Stat. § 101.048(1)-(2) (2011). The ballot is then deposited in a
ballot box, and the secrecy envelope remains sealed until the county canvassing board
reviews the certificate and affirmation to determine whether the ballot may be tabulated.
See id.On the basis of the foregoing, we are persuaded that the paperwork associated with
these changes will not be materially more burdensome for inter-county movers. Election
officials in the covered counties have estimated that the new provisional voter’s
certificate and affirmation should not take much longer to complete than the old
affirmation of change of address. See, e.g., A3938 (Ussery Dep.) (“It’s the same ballot
they would have received. . . . I don’t really see where it would be an obstacle [to
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voting].”).54 At most, the total paperwork may take a few additional minutes because the
voter may have to include some of the same information on the provisional ballot
envelope. See Oral Arg. Tr. 237:11 - 237:16. The voter may also have to wait while an
election official reviews and signs his or her affirmation and/or provisional envelope. See
Fla. Stat. § 101.048(3) (2011). But we do not see how these minor burdens could deter a
reasonable inter-county mover from voting. Moreover, some of the covered counties
have sought to minimize even these burdens by affixing the Provisional Ballot Voter’s
Certificate and Affirmation to the outside of the provisional envelope, or even printing
the certificate and affirmation directly onto the provisional envelope itself. See, e.g.,
A7395 (Hillsborough County Provisional Ballot Quick Reference Guide).
Second, we must consider whether, although the paperwork is not noticeably
different, the overall balloting process for inter-county movers will take materially longer
because of the additional interactions they will need to engage in with polling place
officials. For example, although there does not appear to be any uniform process for
inter-county mover voting under the statute, at least one election official in a non-covered
county has indicated that provisional voters will be required to move into a different line,
where they must interact with a particular election worker with the authority to process
provisional ballots. See, e.g., A10583-84 (Sancho Dep.); A9183 (Sancho Decl.).
Moreover, voters faced with the requirement of casting a provisional ballot may have
54
See also A3261-62 (Sawyer Dep.); A3452-53 (Edwards Dep.); A3830 (Lennard
Dep.).
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questions for election officials, cf. A9105 (Joyner Decl.), and election officials are also
required to communicate certain information to provisional voters, see Fla. Stat.
§ 101.048(5). All together, it does appear that some elements of the process may be
slightly more time-consuming under the new law.
On the other hand, some aspects of the new inter-county mover process may move
more quickly than the old procedures. For example, under the benchmark process,
election officials were required to verify that inter-county movers were validly registered
Florida voters before permitting them to cast a regular ballot. See Fla. Stat. § 101.045(d)
(2010). Verification might involve consulting a voter registration database or telephoning
election headquarters, with associated delay. Now, by contrast, verification is not
necessarily required at the time of voting. Instead, the county canvassing board will
determine the inter-county movers’ eligibility when reviewing their provisional ballots
after Election Day. See id. § 101.048(2)(a) (2011). Overall, then, we do not see much
difference in the time required to cast an inter-county mover ballot under the new versus
the benchmark law, let alone enough to deter reasonable voters from voting.
Third, the United States and intervenors urge us to consider the possibility that,
although the new procedures may not take materially longer, voters will nonetheless be so
deterred by the overall “negative experience” of being required to cast a provisional ballot
that they will decide not to vote at all. Based on the record before us, however, we cannot
conclude that a voter who has already committed to waiting in line to cast a ballot, and
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then learns that he or she is an “inter-county mover,” will leave the precinct rather than
vote a provisional ballot. It is certainly understandable that casting a provisional ballot
may “not leave a good feel[ing] with the voter,” A3778 (Lennard Dep.), and that inter-
counter movers may be upset or frustrated when informed that they have to vote using a
provisional ballot, see A10583-84 (Sancho Dep.). But as the intervenors acknowledged
at oral argument, “the retrogression standard is not in place to prevent people from being
irritated.” Oral Arg. Tr. 194:1 - 194:3.
In any event, much of the confusion and frustration appears to stem from a
misunderstanding of the nature of provisional ballots. Although some voters “believe that
provisional ballots will not be counted,” A9106 (Joyner Decl.), under Florida law such
ballots “shall be counted” as long as the voter is eligible, Fla. Stat. § 101.048(2)(a)
(2011). Election officials in the covered counties have testified that they will explain
these facts to their inter-county movers, and that under such circumstances, “if the voter is
there to vote and they still have the opportunity to vote, most likely they are going to take
advantage of it.” A3972 (Ussery Dep.). Indeed, contrary to the uncorroborated assertion
of a single supervisor of elections in a non-covered Florida county, see A10583-84
(Sancho Dep.), election officials in the covered counties have testified that they have
never seen a voter leave a precinct without voting simply because he or she was required
to vote a provisional ballot, A3972 (Ussery Dep.); A3778-79 (Lennard Dep.).55 In sum,
55
The one specific anecdote in the record of a voter leaving a precinct involved a
situation that is different from the one at issue here. Senator Joyner testified that she once
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there are no grounds for finding that the provisional ballot requirement for inter-county
movers will result in reasonable minority voters no longer exercising the franchise.
Fourth, the United States and intervenors argue that the inter-county mover
changes will “increase the lines at the polling places,” which may in turn discourage or
prevent other voters (i.e., those who are not inter-county movers) from voting. A7279
(Edwards E-mail (Apr. 13, 2011)); see also A3358 (Edwards Dep.). The theory appears
to be that, even if the inter-county movers themselves will not be dissuaded from voting,
the added time required to process them will result in longer lines and thereby discourage
other voters from waiting in line to cast a ballot. We certainly do not disagree that there
can be circumstances in which long lines at the polls may dissuade voters from voting.
There is no evidence in the record of this case, however, that such dissuasion would result
from the inter-county mover changes.
As we have just explained, the record indicates that the new procedures for
inter-county movers will not take materially more time than the prior procedures. More
important, whatever increased time an individual inter-county mover takes, there are so
observed a voter leave the polls because he did not want to vote a provisional ballot. See
A9794-95 (Joyner Dep.). That voter, however, appeared to be concerned primarily
because he was told that there was “something wrong” and that he had to “come back in
48 hours and . . . clear it up.” Id. Although there are some unusual circumstances where
an individual may have to return within 48 hours and submit additional evidence, see Fla.
Stat. § 101.048(1), Florida has represented that inter-county movers normally are not
required to submit any additional information. Rather, so long as they are registered
voters, have properly completed the required certificate and affirmation, and are voting at
the correct precinct, their provisional ballots will be tabulated without any additional
evidence. See Oral Arg. Tr. 31:24 - 32:12.
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few of them that it is highly unlikely that any individual precinct would be affected to any
material degree.56 As we have said, the high-water mark for inter-county movers was the
2008 general election, when 2,240 voters (approximately 750 of whom were minorities)
updated their addresses at the polls in the covered counties. See A8908 (Supplemental
Decl. of Dr. Stewart).57 (This is out of a total of over 530,400 voters who voted in that
election in the covered counties. See id.) Moreover, of those 2,240, only about 1,000
updated their addresses on Election Day; the rest were spread over the early voting
period. A8907-08. And when that total is itself spread among all of the precincts in
Florida’s five covered counties, it averages out to only a handful of inter-county movers
at each precinct. See Oral Arg. Tr. 34:22 - 35:02. Indeed, it appears that even these
numbers may over-estimate the number of such voters in future elections, for a variety of
reasons.58
56
Nor is there any record evidence that, even if there were increased lines due to
delays in processing inter-county movers, this would disproportionately affect minority
voters. There is no evidence that the regular voters who will be in line behind the inter-
county movers are disproportionately likely to be minorities. There could be a
retrogressive effect, of course, if material delays occurred in disproportionately minority
precincts. But the record contains no data comparing inter-county movers and the
demographic makeup of the precincts in which they vote.
57
The available numbers for other elections in the covered counties are: 613 total
inter-county movers in the 2010 general election; 137 in the 2010 primary; 96 in the 2008
primary; and 94 in the 2008 presidential primary (excluding Hillsborough County, for
which the numbers are not available for the 2008 election). A8908-09 (Supplemental
Decl. of Dr. Stewart).
58
As we explained at note 48 supra, in determining the number of inter-county
movers, Dr. Stewart was required to make certain assumptions about whether the voters
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Fifth, we consider the possibility that the inter-county movers’ provisional ballots
will not be counted due to human error or lack of time to tabulate them. The United
States and intervenors have introduced evidence that in the past, provisional ballots have
been counted at lower rates than regular ballots. Of course, none of those provisional
ballots involved inter-county movers because the provisional procedure did not apply to
them under the prior law. Moreover, the record does not disclose why many of those
provisional ballots were invalidated, and the United States and intervenors have proffered
no evidence that invalidation was due to human error (or malevolence). Instead, the only
evidence in the record is that, most often, provisional ballots were not counted “simply
because the person [was] not eligible to vote,” A5048 (Dep. of David Stafford, Escambia
County SOE and Florida State Association of Supervisors of Elections (“FSASE”)
President); see also A8156 (Decl. of Gisela Salas, Fla. Director of Elections), a
circumstance that would not apply to a true inter-county mover.
in his data set had actually changed their addresses at the polls, rather than contacting
election officials and updating their addresses before or after going to vote. See A10648-
52 (De Bene Esse Dep. of Dr. Stewart). The results of the database query may therefore
include some voters who did not change their addresses at the polls. See A8895-96
(Supplemental Decl. of Dr. Stewart); A9035 (E-mail from Wren Fowler, VR Systems
(Feb. 16, 2012)). In addition, Dr. Stewart’s data may have included some military
personnel and members of their families, who are exempt from the new inter-county
mover procedures. See Fla. Stat. § 101.045(2)(b). Finally, as we discuss below, it is
likely that fewer voters will seek to change their addresses at the polls under the new law,
as compared to the law in effect in 2008, because the new law makes it considerably
easier for voters to update their addresses before going to the polls to vote. See Fla. Stat.
§ 97.1031(1)(b) (2011) (allowing registered voters to update their addresses electronically
or by telephone).
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Hence, while there is a possibility of human error involved in casting and counting
provisional ballots, we cannot deny preclearance based on a speculative risk. Rather,
consistent with Florida law, “[a] ballot of a person casting a provisional ballot shall be
counted unless the canvassing board determines by a preponderance of the evidence that
the person was not entitled to vote.” Fla. Stat. § 101.048(2)(a) (2011) (emphasis added);
see id. § 101.048(2)(b)(1). Florida has already instructed its supervisors of elections
accordingly. See A2764-65 (Fla. Dep’t of State, Directive 2011-01 (May 19, 2011))
(“[T]he provisional ballot shall count unless the canvassing board determines more likely
than not that the person was not entitled to vote. That would occur only if the voter was
not registered or the voter voted in a precinct other than the one that corresponds to his or
her new address . . . or if evidence was available before the board that either the voter had
already voted or that the voter was committing fraud.”); A7232-33 (Fla. Dep’t of State,
Directive 2012-01 -- Provisional Ballot Verification (Jan. 13, 2012)) (same).
We next address the possibility that the increase in the number of provisional
ballots due to the inter-county mover changes will make it impossible to count them in a
timely fashion. During the legislative debates, the FSASE expressed concern that
“there’s simply not enough time to canvass” the additional provisional ballots that will be
cast under the new inter-county mover procedures. A967-69 (Senate Rules Comm. (Apr.
15, 2011) (Statement of David Stafford, FSASE President)); see also A9180-81 (Decl. of
Ion Sancho, a supervisor of elections in a non-covered county). But supervisors of
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elections in the covered counties have testified that, consistent with their responsibilities
under Florida law, they will “train and put on additional personnel to ensure that [the new
provisional ballot procedures] will work.” A3781-82 (Lennard Dep.). Indeed, the
FSASE President -- who opposed the inter-county mover changes on the ground that they
would result in too many additional provisional ballots -- has stated that, if more
provisional ballots are cast than usual, his county’s canvassing board will bring in
additional personnel and work longer hours to ensure that the additional ballots are
properly examined. A5044-45 (Stafford Dep.). Moreover, as we have noted above, the
numbers of inter-county movers in the covered counties are so small as to make it even
more unlikely that their provisional ballots will overwhelm their county canvassing
boards.
In any event, because provisional ballots are presumptively valid under the new
statute, which places the burden of proof on the canvassing board to disqualify them, see
Fla. Stat. § 101.048(2)(a), Florida has confirmed that its election officials must count the
provisional ballots of inter-county movers even if the officials run out of time to examine
them in detail. See Fla. Br. 19; A7100-01 (Fla. Rule 30(b)(6) Dep.); A4467-68 (Dep. of
Gary Holland, Assistant Gen. Counsel, Fla. Dep’t of State). Accordingly, our grant of
preclearance to the inter-county mover changes is based on our express understanding
that Florida will follow its laws as written, see Fla. Stat. § 101.048(2), and will abide by
the representations it has made to this court, see Fla. Br. 19; Oral Arg. Tr. 33:05 - 34:20
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(argument by Florida’s counsel that “these provisional ballots are going to be counted,”
even if the canvassing board does not have time to fully review them, and stating that “the
Court can accept that representation and issue a decision accordingly”). We also expect
that Florida will educate its supervisors of elections about their responsibilities, to avoid
any confusion or misunderstandings that might otherwise result.59 And, of course, our
decision in this section 5 case does not bar subsequent actions for violations of federal or
state law.60
Finally, we note that a significant factor in our decision to grant preclearance to the
inter-county mover changes is that, while in some respects the new law makes it
marginally more difficult for such voters, in other respects the law makes it considerably
easier for them. Cf. City of Richmond, 422 U.S. at 370-71 (discussing not only the
burdens imposed by a given voting change, but also any off-setting, or ameliorative,
adjustments). Specifically, the new statute makes it easier for Florida voters to update
59
Most of the supervisors of elections in the covered counties appear to already
understand the requirements of the new law. See, e.g., A3207-08 (Lennard Dep.); A3265,
3269-71 (Sawyer Dep.). One supervisor, however, exhibited some confusion during her
deposition and testified that if she reached the end of the canvassing period without
completing her examination of the provisional ballots, she might reject and not tabulate
the provisional ballots that remained. A3423-24 (Edwards Dep.). That, of course, would
violate Florida law and is inconsistent with the representations that Florida has made in
the course of this litigation. We expect that Florida will take the steps necessary to
correct this misinterpretation, and we preclear the inter-county mover changes solely on
the understanding that Florida will ensure that its election officials follow the law.
60
See 42 U.S.C. 1973c(a) (providing that “a declaratory judgment entered under
this section shall [not] bar a subsequent action to enjoin enforcement of [a changed]
qualification, prerequisite, standard, practice, or procedure” with respect to voting).
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their addresses before going to the polls. Under the benchmark law, inter-county address
changes had to be completed “using a voter registration application signed by the
elector.” Fla. Stat. § 97.1031(2) (2010). Now, however, voters can update their
addresses simply by “[c]ontacting the supervisor of elections via telephone or electronic
means,” or by submitting any kind of “signed, written notice.” Fla. Stat. § 97.1031(1)(b)
(2011). Because inter-county address changes are now so much easier to effectuate, there
may well be fewer voters who wait until they arrive at the polling place to change their
addresses. This will further reduce concerns regarding longer lines, extended wait times,
and the added burdens that provisional ballots may impose on voters and election
officials.
For the foregoing reasons, we are persuaded by a preponderance of the record
evidence that the inter-county mover changes will not have a retrogressive effect on
minority voters in Florida’s five covered counties.
III. Purpose
Section 5 of the Voting Rights Act requires Florida to demonstrate that each of its
proposed changes “neither has the purpose nor will have the effect of denying or
abridging the right to vote on account of race or color, or in contravention of the
guarantees set forth in section 1973b(f)(2) of this title [proscribing voting restrictions
based on membership in a language minority group].” 42 U.S.C. § 1973c(a) (emphasis
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added). See Bossier Parish I, 520 U.S. at 478; City of Rome, 446 U.S. at 172, 183 &
n.18; see also City of Richmond, 422 U.S. at 378 (“An official action . . . taken for the
purpose of discriminating . . . on account of . . . race has no legitimacy at all under our
Constitution or under the [Voting Rights Act].”). In Part II, we addressed the effects of
Florida’s voting changes. In this part, we address their purpose.
As with our analysis of the effect prong, we first determine the appropriate legal
standards for evaluating purpose. We then apply those standards to the specific voting
changes at issue in this case.
A. Legal Standards
As Congress made clear in the 2006 reauthorization of the Voting Rights Act, a
voting change passed with “any discriminatory purpose” does not qualify for preclearance
under section 5. 42 U.S.C. § 1973c(c). The Supreme Court has directed that, in
evaluating legislative purpose under that section, “courts should look to [the] decision in
Arlington Heights for guidance.” Bossier Parish I, 520 U.S. at 488. There, the Court “set
forth a framework for analyzing ‘whether invidious discriminatory purpose was a
motivating factor’ in a government body’s decisionmaking.” Id. (quoting Arlington
Heights, 429 U.S. at 266). That “framework has . . . been used, at least in part, to
evaluate purpose [in] previous § 5 cases.” Id. (citing City of Pleasant Grove v. United
States, 479 U.S. 462, 469-70 (1987) (considering several of the Arlington Heights factors
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in the course of rejecting a proposed annexation of an African-American neighborhood);
Busbee v. Smith, 549 F. Supp. 494, 516-17 (D.D.C. 1982) (referencing the Arlington
Heights test); City of Port Arthur, 517 F. Supp. at 1019 (same)).
Before applying the Arlington Heights test to this case, we must first flesh out its
framework.61 We must also address several of Florida’s novel arguments for evaluating
purpose under section 5, some of which would take us far outside the bounds of Arlington
Heights.
1. Our examination of the text of section 5 and relevant case law construing the
purpose prong of the Act convinces us that the basic approach we must apply in this case
is as follows: First, Florida must present some prima facie evidence “to show that [its]
voting changes are nondiscriminatory.” Shelby Cnty. v. Holder, 811 F. Supp. 2d 424, 431
(D.D.C. 2011), aff’d, 679 F.3d 848 (D.C. Cir. 2012). “As a practical matter, this means
that the plaintiff must come forward with evidence of legitimate, nondiscriminatory
motives for the proposed changes to [its] voting laws.” New York, 874 F. Supp. at 400. If
Florida can meet that initial burden of production, the production burden then “shifts to
the Attorney General,” id., to provide some evidence to “refute the covered jurisdiction’s
61
The Arlington Heights test cannot directly control in a section 5 preclearance
action because in Arlington Heights itself, the plaintiff bore the burden of proof on its
Fourteenth Amendment claim to establish that “a discriminatory purpose has been a
motivating factor” in the challenged decision. 429 U.S. at 265-66 (emphasis added). As
we have discussed, under section 5, the burden is reversed, and it is the covered
jurisdiction that must prove that its decision was not motivated by discriminatory intent.
See 42 U.S.C. § 1973c(a).
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prima facie showing that a proposed voting change does not have a [discriminatory]
purpose.” Bossier Parish II, 528 U.S. at 332; see New York, 874 F. Supp. at 400. When
each party has met its production burden, those burdens fall away and it remains for us to
assess whether Florida (through its prima facie case and other evidence) has satisfied its
ultimate burden to prove, by a preponderance of the evidence, that its election changes
were not motivated by any discriminatory purpose.62
As noted above, in making that assessment we are to “look to” the Court’s
“decision in Arlington Heights for guidance.” Bossier Parish I, 520 U.S. at 488. “The
‘important starting point’ for assessing discriminatory intent under Arlington Heights is
‘the impact of the official action [and] whether it bears more heavily on one race than
another.’” Id. at 489 (quoting Arlington Heights, 429 U.S. at 266) (additional internal
quotation marks omitted). “Other considerations relevant to the purpose inquiry include,
among other things, ‘the historical background of the [jurisdiction’s] decision’; ‘[t]he
62
We note that Florida’s preclearance briefs cite the Supreme Court’s holding in
Bossier Parish II that the purpose prong of section 5 only bars changes with a
retrogressive, rather than a discriminatory, purpose. Fla. Br. 37 (citing 528 U.S. at 328).
Florida acknowledges, however, that Congress amended the statute in 2006 to supersede
that interpretation and to clarify that “[t]he term ‘purpose’ . . . shall include any
discriminatory purpose,” 42 U.S.C. § 1973c(c) (emphasis added), not just one that would
leave minority voters worse off than under the prior law. Accordingly, for purposes of
ruling on Florida’s preclearance requests, we apply the statute as drafted. Thus, to obtain
preclearance, Florida must prove by a preponderance that its voting changes were not
enacted with “any discriminatory purpose” in mind. 42 U.S.C. § 1973c(c). Although
Florida also relies on Bossier Parish II in its separate challenge to the constitutionality of
section 5 (and particularly of the 2006 amendments to the Act), see Fla. Const. Br. 42-43,
we will not address those arguments here.
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specific sequence of events leading up to the challenged decision’; ‘[d]epartures from the
normal procedural sequence’; and ‘[t]he legislative or administrative history, especially
. . . [any] contemporary statements by members of the decisionmaking body.’” Id.
(quoting Arlington Heights, 429 U.S. at 267-68) (brackets in Bossier Parish I). Our
inquiry may also include an examination of such other “circumstantial and direct evidence
of intent as may be available,” Arlington Heights, 429 U.S. at 266, including whether
there are legitimate, race-neutral justifications for the change, see, e.g., City of Richmond,
422 U.S. at 374.
2. In adopting this construction of the section 5 purpose prong, we reject several
of Florida’s contrary arguments.
First, Florida contends that, because it is a non-covered state and only five of its
counties are covered jurisdictions, its sole burden under the purpose prong should be to
“show[] . . . that the covered count[ies] acted with no impermissible purpose.” Fla. Br.
36. Florida then goes on to argue that, because “[t]here is no evidence that legislators
from the Covered Counties were motivated by any discriminatory purpose” in passing HB
1355, the election law changes at issue here are entitled to preclearance. Id. at 41.
Indeed, Florida argues that, even if the legislators from Florida’s five covered counties
had acted with a discriminatory purpose in voting for the changes, that “would be
irrelevant as the Act was passed by such wide margins that the votes of the legislators
from the Covered Counties had no effect on the Act becoming law.” Id.
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We cannot square this interpretation of the purpose test with the text of the statute
or relevant precedent. Section 5 states that preclearance must be denied if a proposed
voting change “has the purpose . . . of denying or abridging the right to vote on account of
race[,] color,” or membership in a language minority group. 42 U.S.C. § 1973c(a). And
in Lopez v. Monterey County, 525 U.S. 266 (1999), the Supreme Court held that voting
changes that are to be administered in a covered jurisdiction must be submitted for
preclearance even if the changes are part of a state law of general applicability and the
State itself is not covered by section 5. See also 28 C.F.R. § 51.23 (giving partially
covered states the authority to submit voting changes on behalf of their covered
jurisdictions). The Lopez Court reasoned that, while section 5 generally does not impose
burdens on non-covered jurisdictions, it does “burden[] state law [in non-covered states]
. . . to the extent that that law affects voting in jurisdictions properly designated for
coverage.” 525 U.S. at 284.
In so holding, Lopez did not suggest that the only purpose that should be
considered in evaluating whether such a state law is entitled to preclearance is the purpose
that motivated the specific legislators from the covered jurisdictions.63 Nor does Florida
cite any authority for that proposition. That is not surprising. The Supreme Court has
63
Lopez did state, however, that the Court would afford “substantial deference to
the Attorney General’s interpretation of § 5.” 525 U.S. at 281. And the Attorney General
has frequently objected to changes enacted by partially covered states based, at least in
part, on the failure to show that the state as a whole acted without a discriminatory
purpose. See A9647, 9678-98 (Decl. of Robert Berman) (collecting examples).
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done the opposite when applying section 5’s purpose prong to partially covered
jurisdictions. See Shaw v. Hunt, 517 U.S. 899, 912-13 (1996) (concluding that the North
Carolina “General Assembly” adequately “explained why it did not create a second
minority district,” id. at 912).64 So has this court. See New York, 874 F. Supp. at 400(preclearing New York’s plan because “the legislature’s primary motivation” was
nondiscriminatory). Indeed, limiting the purpose inquiry to the legislators from covered
jurisdictions would render the purpose prong virtually meaningless for states like Florida,
where so few counties are covered that the votes of legislators from the covered
jurisdictions are unlikely to be outcome-determinative.
Next, Florida cites Personnel Administrator of Massachusetts v. Feeney, 442 U.S.
256 (1979), as “set[ting] forth the constitutional standard” for unlawful purposeful
discrimination. Fla. Br. 38. We are not certain what standard Florida means to tease out
of Feeney. At one point, Florida cites Feeney for the proposition that “the plaintiff must
show that ‘the decisionmaker . . . selected or reaffirmed a particular course of action at
least in part ‘because of,’ not merely ‘in spite of’ its adverse effects upon an identifiable
group.’” Id. (quoting Feeney, 442 U.S. at 279). Except for the fact that in a section 5
case the burden to show the absence of an unlawful purpose is on the covered
64
Shaw applied section 5 in the course of “evaluating whether [a] partially covered
State’s § 5 obligations justified race-based districting.” Lopez, 525 U.S. at 280(discussing Shaw). Lopez cited Shaw as an example of a case that “reveal[ed] a clear
assumption . . . that § 5 preclearance is required where a noncovered State effects voting
changes in covered counties.” Id.
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jurisdiction, we generally agree with that proposition: there is an impermissible purpose
under section 5 when race was a “motivating factor” in a decision, Bossier Parish I, 520
U.S. at 488 (quoting Arlington Heights, 429 U.S. at 266), not when the legislature merely
took a particular action knowing that it might bear disproportionately on minority groups.
Of course, the fact that a given action will have a disparate impact on minorities (and that
the decisionmaker knew that) can provide powerful circumstantial evidence of
discriminatory intent. As Arlington Heights explained, “[t]he impact of the official
action” and “whether it bears more heavily on one race than another may provide an
important starting point” in the analysis of legislative intent. 429 U.S. at 266 (internal
citation and quotation marks omitted).
But Florida also cites Feeney for the propositions that “facially neutral laws of
general applicability are presumptively constitutional,” Fla. Br. 38, and that “even if a
neutral law has a disproportionately adverse effect upon a racial minority, it is
unconstitutional under the Equal Protection Clause only if that impact can be traced to a
discriminatory purpose,” Feeney, 442 U.S. at 272. Florida then asserts that as a result of
these two propositions, “Florida can meet its burden under Section 5 by showing that each
voting change is a neutral law of general applicability and thus presumptively
constitutional.” Fla. Br. 40. That argument, however, conflates the constitutional
standard with the statutory preclearance test. Feeney may set out the relevant
constitutional standard, but as a matter of statutory preclearance under section 5, the
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traditional presumption is reversed, and the covered jurisdiction bears the affirmative
burden of showing that its proposed voting changes do not have a discriminatory purpose
or a retrogressive effect. See 42 U.S.C. § 1973c(a); see Bossier Parish II, 528 U.S. at
328; Bossier Parish I, 520 U.S. at 478; City of Rome, 446 U.S. at 184 n.18; Beer, 425
U.S. at 140-41; Georgia, 411 U.S. at 538. As such, the fact that a voting law is “facially
neutral” or “of general applicability” is not dispositive for section 5 purposes. Indeed, a
central goal of the Voting Rights Act was to prevent covered jurisdictions from enacting
laws that “may have been facially neutral” but that could be “easily manipulated to keep
[minorities] from voting.” Nw. Austin, 557 U.S. at 198. And as Florida itself admits, see
Fla. Br. 40-41, case law interpreting the Act requires jurisdictions to bring forth at least
some “affirmative evidence that the proposed changes were not motivated by a
discriminatory purpose,” New York, 874 F. Supp. at 400; see City of Richmond, 422 U.S.
at 374.
Finally, Florida puts the preceding two arguments together and contends that we
must evaluate only the motives of the legislators from the five covered counties, and must
assume that facially neutral voting changes were enacted with a proper purpose, because
to do otherwise “would increase further the serious federalism costs already implicated by
[section] 5 and thus trigger serious constitutional concerns.” Fla. Br. 41 (internal citation
and quotation marks omitted); see id. at 36. But the doctrine of constitutional avoidance
does not permit us to interpret section 5 in a way that would render its purpose prong
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meaningless for states with a small number of covered counties, or that would require
reversing the burden of proof specified by the statutory text. See Commodity Futures
Trading Comm’n v. Schor, 478 U.S. 833, 841 (1986) (“[A]lthough this Court will often
strain to construe legislation so as to save it against constitutional attack, it must not and
will not carry this to the point of perverting the purpose of a statute or judicially rewriting
it.” (internal citations and quotation marks omitted)). And in any event, as we explain
below, Florida in fact prevails under the purpose prong with respect to the voting changes
that we address (the inter-county mover changes), even as that prong has traditionally
been interpreted.
***
We now proceed to apply the section 5 purpose test, including the burden-shifting
framework and the Arlington Heights factors outlined above, to the particular voting
changes at issue in this opinion. Consistent with long-standing practice under section 5,
we will evaluate each of the proposed changes separately. See DOJ Br. 58 (“The
Attorney General analyzes each voting change in submitted legislation separately as to
purpose and to effect.”); cf. [79] March 8, 2012 Mem. Order at 2-3 (noting that the United
States advised the court that it had concluded that Florida had met its burden of
demonstrating that the citizen initiative changes in HB 1355 were neither enacted with a
discriminatory purpose nor will have a retrogressive effect on minority voters); Georgia
v. Ashcroft, 195 F. Supp. 2d 25 (denying preclearance to a state senate redistricting plan,
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but preclearing the Congressional and state house plans adopted at roughly the same
time). But because the parties often present more general arguments with respect to the
purpose underlying HB 1355 as a whole, we cross-apply our analysis of those broader
arguments where relevant.
B. Early Voting Changes
Our discussion of the early voting changes can be brief. As explained above, we
have determined that Florida has failed to satisfy its burden of proving that those changes
will not have a retrogressive effect. See supra Part II.B.2. And because we cannot
preclear changes unless they satisfy both the effect and purpose prongs of section 5, we
must deny preclearance regardless of the purpose of the early voting changes. This makes
it unnecessary for us to reach the purpose prong at this time. See City of Port Arthur, 517
F. Supp. at 1019 (“[W]e need not reach the issue of whether the changes in voting
standards, practices or procedures were undertaken with the purpose of denying or
abridging the right to vote on account of race, color, or language-affiliation if we find that
these same actions have a discriminatory effect.”). Instead, we leave that question for
another day, to be resolved if Florida or the covered counties submit nonretrogressive
hours for preclearance. Of course, consistent with the important role that the effect of a
voting change plays in our analysis of purpose, see Arlington Heights, 429 U.S. at 266, if
the covered counties submit hours that will not result in retrogression, that will be a
significant factor in favor of a finding of nondiscriminatory purpose.
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C. Inter-County Mover Changes
We next consider the changes to the voting procedures governing inter-county
movers. With respect to those changes, Florida has satisfied its prima facie burden to
“come forward with evidence of legitimate, nondiscriminatory motives” for the
amendments. New York, 874 F. Supp. at 400. The procedures at issue address a
particular -- and, by the numbers, unusual -- scenario in which a voter arrives at the polls
to cast his or her vote but is already registered to vote in a different county. Florida has
submitted numerous contemporaneous statements by the proponents of the inter-county
mover changes who stated that, in light of those circumstances, their goal was to ensure
the efficiency and integrity of the electoral process by allowing election officials to verify
the eligibility of such inter-county movers.
In particular, legislators stated that, under the prior law, it was often difficult if not
impossible to determine whether an inter-county mover seeking to cast a ballot on
Election Day had already voted in that election. See, e.g., A1155-56 (House Sess. HB
1355 1st Reading & Debate (Apr. 20, 2011) (Statement of Rep. Baxley)); A1351-52
(House Sess. HB 1355 2d Reading & Debate (Apr. 21, 2011) (Statement of Rep.
McKeel)). According to the proponents of the inter-county mover changes, this left the
system vulnerable to a specific form of potential fraud, whereby a voter might
intentionally -- or even inadvertently -- cast an early in-person or absentee ballot in one
county and then seek to vote again in a different county as an “inter-county mover.” See
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id.; see also A1405 (House Sess. HB 1355 2d Reading & Debate (Apr. 21, 2011)
(Statement of Rep. Gates) (stating that “I’m concerned that the status quo is so flawed
that we don’t even know in some instances where that abuse may be occurring”)). To
solve this problem, the legislators proposed requiring inter-county movers to cast a
provisional ballot, which is “a real ballot” just like any other, A1156 (Rep. Baxley), but
which “gives [election officials] time to go back and verify, and make sure everything’s
valid,” A463 (Rep. Baxley). In sum, the sponsors of the inter-county mover amendments
expressed their belief that the new system would help to prevent voter fraud because it
would permit election officials to “check [inter-county movers] out, and eliminate
ineligible voters,” while still allowing eligible voters to cast provisional ballots that would
be counted. A1417-18 (House Sess. HB 1355 2d Reading & Debate (Apr. 21, 2011)
(Rep. Baxley)).
The sponsors of the inter-county mover amendments also indicated that the inter-
county mover changes would represent an improvement over the benchmark law because
they would encourage and facilitate the updating of addresses before voters went to the
polls. That, in turn, would allow election officials to finalize their voter rolls before
Election Day and thereby contribute to smoother overall operations at the polls on
Election Day. See A713-16 (House State Affairs Comm. (Apr. 14, 2011) (Rep. Baxley));
A1204 (House Sess. HB 1355 1st Reading & Debate (Apr. 20, 2011) (Rep. Baxley)).
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Taking all of these statements together, Florida has offered sufficient evidence to
carry its initial burden of production to present facially neutral, nondiscriminatory
justifications for the inter-county mover changes.
The United States and intervenors, however, have countered with significant
evidence and arguments of their own. In particular, they have advanced a number of
arguments tracking the key Arlington Heights factors -- including arguments alleging
disparate effects of the changes, discriminatory legislative statements, and departures
from normal legislative procedures. They have also sought to undermine the stated
justifications behind the inter-county mover amendments by contending that the changes
were not necessary to prevent voter fraud, and hence that “verifiable reasons” are not
“demonstrable in support” of the amendments. City of Richmond, 422 U.S. at 374.
Although we will consider each of those arguments in detail below, for now it is enough
to say that the defendants have also met their burden of production to present evidence
tending to “refute the covered jurisdiction’s prima facie showing” of nondiscriminatory
purpose. Bossier Parish II, 528 U.S. at 332; see New York, 874 F. Supp. at 400.
Because both sides have satisfied their initial production burdens, the burden-
shifting framework falls away, and we are left with the task of evaluating all of the
evidence in the record to determine whether Florida has carried its ultimate burden of
persuasion under the purpose prong of section 5.
1. “The ‘important starting point’ for assessing discriminatory intent under
Arlington Heights is ‘the impact of the official action [and] whether it bears more heavily
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on one race than another.’” Bossier Parish I, 520 U.S. at 489 (quoting Arlington Heights,
429 U.S. at 266) (second internal quotation omitted). That is so because “[s]ometimes a
clear pattern, unexplainable on grounds other than race, emerges from the effect of the
state action even when the governing legislation appears neutral on its face.” Arlington
Heights, 429 U.S. at 266 (citing, as examples, Gomillion v. Lightfoot, 364 U.S. 339(1960) and Yick Wo v. Hopkins, 118 U.S. 356 (1886)). In such a case, it is “relatively
easy” to find discriminatory intent. Id. But “such cases are rare,” the Court cautioned,
and absent a “stark” pattern, disproportionate “impact alone is not determinative” of
discriminatory intent. Id.In this case, there is no evidence of starkly disparate effects on a minority group.
To the contrary, as we have explained in detail in connection with our analysis of the
section 5 effect prong, Florida has satisfied its burden of showing that the inter-county
mover changes will not “bear more heavily” on any minority group. To be sure, the inter-
county mover changes may affect disproportionately more minority voters than white
voters because minorities are more likely to be inter-county movers. But the evidence
indicates that the changes will not have materially adverse effects on the ability of
minority voters to cast a ballot and effectively exercise the electoral franchise. See supra
Part II.C.2. As such, the effects of these changes do not suggest that they were enacted
with a discriminatory purpose.
Indeed, the lack of retrogressive effects constitutes evidence that the inter-county
mover amendments were not passed for a discriminatory reason. After all, to find
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discriminatory intent with respect to these changes, we would have to conclude that
Florida exhibited “malevolent incompetence” -- that is, that the State wanted to harm
minority voters by making it more difficult for them to cast a ballot but simply chose an
ineffective means of doing so. Bossier Parish II, 528 U.S. at 332. Although such
conduct is theoretically possible, the Supreme Court has advised that it is “unlikely.” And
because legislatures, like people, “usually intend the natural consequences of their
actions,” the absence of retrogressive effects on minority citizens suggests that the inter-
county mover amendments were not motivated by a discriminatory purpose. Bossier
Parish I, 520 U.S. at 487. Indeed, we have been unable to find a case in which a court
has found discriminatory purpose in the absence of retrogressive effects -- except where
the record contained strong statements by legislators that made their true purpose clear.
See Busbee, 549 F. Supp. 494.
2. This brings us to the second Arlington Heights factor: “contemporary
statements by members of the decisionmaking body,” which the Court has said “may be
highly relevant” in determining legislative intent. 429 U.S. at 268. As we have noted
above in describing Florida’s prima facie case, the State has submitted numerous
contemporaneous statements by the proponents of the inter-county mover changes,
indicating that their goal was to ensure the integrity of the electoral process and to
enourage and facilitate the making of address changes before voters arrive at the polls.
This evidence weighs in favor of a finding of nondiscriminatory intent. See id. at 270(concluding that there was no discriminatory purpose, and relying in part on the fact that
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“the statements by the [decisionmaking body], as reflected in the official minutes, focused
almost exclusively on” nondiscriminatory reasons for the decision).65
We must also consider, however, whether there are contemporaneous statements
that do indicate a discriminatory purpose. On this point, the defendants point to a floor
statement by State Senator Mike Bennett, who said that 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.” A2242
(Senate Floor Debate (May 5, 2011)). The relevant text of Senator Bennett’s statement is
65
The defendants maintain that we should not weigh these contemporaneous
statements in Florida’s favor, but should instead draw an adverse inference against the
State because “Florida deliberately chose not to put forward any legislator [deposition]
testimony, and actively opposed the United States’ and Intervenors’ efforts to compel”
such testimony. DOJ Br. 5 (internal citations and quotation marks omitted). During the
discovery phase of this case, the intervenors moved to compel deposition testimony from
four Florida legislators and two legislative staff members, but a federal district court in
Florida denied the motion on the ground of legislative privilege. See [70] Defendant-
Intervenors’ Second Notice of Ancillary Proceedings at 2 & Ex. A; see also Florida v.
United States, 4:12mc3 (N.D. Fla. Feb. 3, 2012).
Although there have certainly been section 5 cases in which legislators have
testified during the litigation, drawing an adverse inference from the absence of such
testimony would run contrary to the instruction of Arlington Heights. There, after
stressing the relevance of legislators’ contemporaneous statements, the Court said: “In
some extraordinary instances the members might be called to the stand at trial to testify
concerning the purpose of the official action, although even then such testimony
frequently will be barred by privilege.” 429 U.S. at 268. “This Court has recognized,” it
continued, “that judicial inquiries into legislative or executive motivation represent a
substantial intrusion into the workings of other branches of government. Placing a
decisionmaker on the stand is therefore usually to be avoided.” Id. at n.18 (internal
quotation marks omitted); see also UAW v. NLRB, 459 F.2d 1329, 1338 (D.C. Cir. 1972)
(holding that where a “judge plays a role in suppression of the evidence, the force of [any
adverse] inference is dissipated”).
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set out in the footnote below.66 Whether or not Senator Bennett actually intended his
statement to have racial undertones, it certainly can be read that way. Hence, Senator
Bennett’s remarks could be considered to constitute evidence of discriminatory purpose
by at least one Florida legislator.
Nonetheless, Senator Bennett’s is the only statement to which the defendants point
as evidencing a discriminatory purpose on the part of the Florida legislature. The purpose
of a single legislator is normally too slim a reed upon which to rest a determination
regarding the legislature as a whole. See Castaneda-Gonzalez v. Immigration &
66
You say [voting’s] inconvenient. Ever read the stories about the people in
Africa, the people of the desert who literally walk two and 300 miles so
they can have an opportunity to do what we do? And we want to make it
convenient?
How much more convenient do you want us to make it? We 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?
The guy who died to give you that right, it was not convenient. Why would
we make it any easier? I want them to fight for it. I want them to know
what it’s like. I want them to go down there and have to walk across town
to go over and vote. I want them to at least know the date they’re supposed
to vote. I’d like to have them actually know where they’re supposed to go
vote. Is that too much to ask? I don’t think so. . . .
We do make it convenient for people to vote, but I got to tell you I wouldn’t
even 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’s willing to walk 200 miles for that opportunity
he’s never had before in his life.
A2242 (Senate Floor Debate (May 5, 2011) (Statement of Sen. Bennett)).
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Naturalization Serv., 564 F.2d 417, 424 (D.C. Cir. 1977) (“Statements by individual
legislators should generally be given little weight when searching for the intent of the
entire legislative body.”). Also important is the fact that Senator Bennett was neither a
sponsor nor a primary proponent of HB 1355, and did not play an important role in
passage of the bill. Indeed, the floor statement was Senator Bennett’s only public
statement regarding the 2011 voting amendments. And although Senator Bennett was the
Senate President Pro Tempore at the time, that office has limited authority, and there is no
evidence it played any role in passage of the amendments.67 Cf. Busbee, 549 F. Supp. at
500-02, 508, 516-18 (finding that a Georgia redistricting plan was passed with a
discriminatory purpose because the chairman of the Georgia redistricting committee was
“a racist” who “made [o]vert racial statements” and “utilized the full power of his
position and personality to insure passage of his desired Congressional plan” -- a plan that
was “motivated by a desire to minimize black voting strength”).
Given all of these considerations, Senator Bennett’s single statement is not enough
to suggest that his purpose, whatever it was, represented the purpose of the Florida
legislature as a whole. Accordingly, we conclude that the “contemporaneous statements”
factor does not materially weigh in favor of a finding of discriminatory purpose.
67
Under the rules of the Florida Senate, “the President Pro Tempore shall assume
the duties of the chair” “[i]f for any reason the President is absent and fails to name a
Senator” to carry out those duties. Rules and Manual of the Senate of the State of
Florida, Rule 1.7(2) (adopted Nov. 16, 2010). And “[i]n the event of extended absence of
the President or the President’s disability or incapacity, the President Pro Tempore shall
assume the duty of referring bills.” Id., Rule 4.6(2).
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3. Although it was not a factor expressly mentioned in Arlington Heights, the
defendants contend that we may also infer discriminatory intent based on a finding that
Florida’s stated justifications for its inter-county mover amendments were pretextual. In
particular, the defendants argue that concerns about voter fraud cannot have motivated
these changes because there is no empirical evidence of inter-county mover fraud, nor
have any local election officials expressed concerns that inter-county movers might be
“double voting.” See DOJ Br. 15-17, 60-61. And indeed, Florida has conceded that “[a]t
the time of the Florida Legislature’s consideration of HB 1355, the State of Florida knew
of no instance” of such “double voting” by inter-county movers. A8281 (Fla. Resp. to
Req. for Admiss. No. 12). Nor has it identified any instances since then. See Oral Arg.
Tr. 24:17 - 25:2, 27:3 - 27:20. Likewise, election officials have confirmed that they have
never seen double voting by inter-county movers at their precincts.68
We agree with the defendants that in some circumstances it is reasonable to infer
discriminatory intent based on evidence of pretext. Cf. McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973); Aka v. Wash. Hosp. Ctr., 156 F.3d 1284 (D.C. Cir. 1998).
But there are barriers to reaching such an inference here. The Supreme Court has
instructed us that “[t]here is no question about the legitimacy or importance” of a state’s
“interest in counting only the votes of eligible voters,” and that “[w]hile the most
68
See, e,g., A3648-39, 3771-72 (Dep. of Earl Lennard, Hillsborough County SOE);
A3106-07, 3132, 3198-3200 (Dep. of Harry Sawyer, Monroe County SOE); A3937 (Dep.
of Jeffery Ussery, Hardee County SOE).
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effective method of preventing election fraud may well be debatable, the propriety of
doing so is perfectly clear.” Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 196
(2008) (plurality opinion of Stevens, J.). Moreover, it has instructed that this principle
applies even where “[t]he record contains no evidence of any such fraud actually
occurring” in the jurisdiction. Id. at 194. Accordingly, the fact that a state has acted
proactively to close a loophole in its election laws -- i.e., that someone could “double
vote” by going to precincts in multiple counties and claiming to have moved -- does not
by itself raise an inference of discriminatory intent. It might well be different, of course,
had the State not only acted without evidence of fraud, but also acted in a way that
materially increased the burden on minority voters. But as discussed above, we have
found that the inter-county mover changes will not have such a materially adverse effect.
Furthermore, in evaluating whether Florida’s stated justifications for its inter-
county mover changes are pretextual, we regard it as significant that those changes also
make ameliorative adjustments that will make it easier for inter-county movers to vote.
As we have noted, the sponsors stated that one purpose of the changes was to encourage
inter-county movers to update their addresses before going to the polls, in order to allow
election officials to finalize their voter rolls before Election Day. Changes in the new law
do help to accomplish this because, unlike the benchmark, the new law allows voters to
update their addresses before Election Day by simply “[c]ontacting the supervisor of
elections via telephone or electronic means.” Fla. Stat. § 97.1031(1)(b) (2011). Because
these ameliorative changes make it easier for inter-county movers to vote, they undercut
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the inference that Florida’s true purpose was to disenfranchise them. And this, combined
with the absence of retrogressive effects or direct statements of discriminatory intent,
persuades us that an inference of unlawful pretext would be unwarranted.
4. Finally, citing Arlington Heights, the defendants contend that “[t]he specific
sequence of events leading up to the . . . decision” supports a finding of discriminatory
intent. 429 U.S. at 267; see id. (noting that “[d]epartures from the normal procedural
sequence . . . might afford evidence that improper purposes are playing a role”). In
particular, they argue that the process by which HB 1355 was passed and implemented
was “unfair, severely limited, and unusual,” and that the “rushed” process, “late-filed”
strike-all amendments, and limitations on public debate all suggest discriminatory animus
on the part of the Florida legislature. DOJ Br. 24-25; see id. at 6, 59, 76-78.
Based on the record before us, however, we are simply unable to determine
whether the legislative process was unusual. Although there is some support for the
defendants’ position, the record of the debates on HB 1355 also reveals that the
legislative process unfolded over a period of several months, and involved substantial
testimony from a number of Florida election officials and members of the general
public.69 In addition, several witnesses who are familiar with the standard procedures in
the Florida legislature testified that strike-all or late-filed amendments are not necessarily
69
See, e.g., A417-45 (House State Affairs Comm. (Apr. 1, 2011)); A740-71 (House
State Affairs Comm. (Apr. 14, 2011)); A964-99 (Senate Rules Comm. (Apr. 15, 2011)).
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unusual. See A4759, 4776, 4952-54 (Dep. of Pierce Schuessler, Legislative Affairs
Director, Fla. Dep’t of State); A9828-33 (Joyner Dep.).
The defendants also argue that “HB 1355’s provision that the Voting Changes
‘shall take effect upon [HB 1355] becoming a law’ is highly unusual,” and that that
departure from normal protocol requires a finding of discriminatory intent. DOJ Br. 52
(internal citation omitted). But the record contains several examples of Florida voting
laws passed in recent years that were enacted to take immediate effect. See A10699-970
(collecting examples); see also A3869 (Lennard Dep.); A4918 (Schuessler Dep.).
Relatedly, the defendants contend that the Florida Department of State’s direction to
election supervisors that they should implement the law in non-covered counties, even
before the State receives preclearance for implementation in the covered counties,
“deviates from prior precedent” and violates Florida law requiring uniform
implementation of election provisions. DOJ Br. 52-53 (referring to A7269 (Fla. Dep’t of
State, Directive 2011-01 (May 19, 2011))). But the specifics of post-enactment
implementation by Florida’s executive branch tell us little -- if anything -- about whether
the enacting legislature was motivated by discriminatory intent.
5. In sum, based on a consideration of the Arlington Heights factors and the
arguments of the parties, we conclude that Florida has carried its burden of establishing
that the inter-county mover changes were not enacted with “the purpose . . . of denying or
abridging the right to vote on account of race or color, or” membership in a language
minority group. 42 U.S.C. § 1973c(a).
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IV. Conclusions
To summarize, we have reached the following conclusions:
First, we conclude that we cannot preclear Florida’s early voting changes at this
time because the State has failed to satisfy its burden of proving that those changes will
not have a retrogressive effect on minority voters if the covered counties offer only the
minimum number of early voting hours required under the new statute, which would
constitute only half the hours required under the prior law. We also conclude, however,
that if Florida and the covered counties were to submit a preclearance plan that offered
early voting for the maximum number of hours authorized by the new statute, which
would be exactly the same number as under the prior law, and did so on a standard 7 a.m.
to 7 p.m. schedule, Florida likely would satisfy its burden of proving that the overall
effect of its changes in law would be nonretrogressive. Accordingly, we will deny
Florida’s request for a declaratory judgment granting preclearance of the early voting
changes and dismiss Count Three of the Third Amended Complaint, without prejudice.
Second, we conclude that Florida has satisfied its burden of proving that the
changes to the procedures for inter-county movers neither were enacted with a
discriminatory purpose nor will have retrogressive effects on minority voters. We will
therefore enter a declaratory judgment on Count Two of Florida’s Third Amended
Complaint preclearing those changes.
A separate order implementing these decisions will be issued this day.
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FINDINGS OF FACT
I. Background and Procedural History
A. Factual Background
1. Five of Florida’s sixty-seven counties are covered jurisdictions subject to the
requirements of section 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c. Those
five counties are Collier County, Hardee County, Hendry County, Hillsborough County,
and Monroe County. See A117 (Revised Jointly Stip. Facts ¶¶ 1-2). Each county became
subject to coverage by operation of the language minority amendments to the Voting
Rights Act in 1975. See 28 C.F.R. Pt. 51, App.; see also 41 Fed. Reg. 34329 (Aug. 13,
1976); 40 Fed. Reg. 43746 (Sept. 23, 1975). The State of Florida is not itself covered by
section 5.
2. According to the 2010 census, the covered counties have a combined
population of approximately 1,691,000, of which 13% are African-American and 26% are
Hispanic. A7677 (Expert Report and Decl. of Russell Weaver) (compiling data from the
2010 U.S. Census Community Survey dataset). The covered counties’ citizen voting age
population is approximately 12% African-American, 16% Hispanic, and 68% white.
(Other minorities, including Asian-Americans and Native Americans, make up the
remainder.) Id. at A7683.
3. Hillsborough County is the largest of the covered counties, constituting 73% of
the covered counties’ combined population. Id. at A7677. The other covered counties, in
descending order of population, are: Collier County, which accounts for 19% of the
covered counties’ total population; Monroe County, which makes up 4% of the covered
counties’ total population; and Hardee and Hendry Counties, which each constitute 2% of
the covered counties’ total population. Id.
4. On average, African-American and Hispanic populations in the covered
counties have a lower per capita income and a lower median household income level than
the white population. See id. at A7694-97. African-American and Hispanic households
in the covered counties are also less likely than white households to own or have access to
a motor vehicle. Id. at A7693.
5. County supervisors of elections administer the elections in each of Florida’s
sixty-seven counties. These supervisors are elected constitutional officers, see id.§ 98.015(1), and are charged with, among other things, conducting elections, verifying,
entering, and updating voter registration information, transmitting updated voter histories
to the Department of State after an election, training poll workers, and reporting any
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instances of voter fraud, see id. §§ 98.015, 98.0981, 101.001-102.171; see also A7076
(Fla. Rule 30(b)(6) Dep.).
6. The Florida Secretary of State is Florida’s chief election officer and the head of
the Department of State, which houses the Florida Division of Elections. Id. §§ 20.10,
97.012. The Secretary of State is charged with, among other things, interpreting and
implementing the requirements of the Florida Election Code, maintaining voter
registration files, providing voter education assistance to the public, and providing written
direction and opinions to the supervisors of elections regarding the performance of their
official duties. Id. § 97.012.
7. The Florida Election Code regulates such matters as voter registration and the
times, places, and methods of voting. The Election Code has been amended several times
in recent years, including in 2001, 2005, and most recently in 2011. See Fla. Laws ch.
2001-40; Fla. Laws chs. 2005-277, 2005-278; Fla. Laws chs. 2011-40.
B. Procedural History
8. This case involves several of the 2011 amendments to the Florida Election
Code. Those amendments were included in an omnibus bill, Committee Substitute for
Committee Substitute for House Bill No. 1355 (“HB 1355”), which made approximately
80 sets of changes to the provisions of the Election Code. The two particular sets of
changes at issue in the accompanying opinion involve: (1) amendments to the days and
hours of early in-person voting; and (2) amendments to the voting procedures for
inter-county movers (i.e., voters who move between Florida counties without updating
their registered address and then seek to vote in their new county of residence).
9. The final 2011 voting changes were the product of two similar bills -- HB 1355
and SB 2086 -- that moved through the Florida House and Senate over a period of several
months.
10. HB 1355 was first introduced on March 7, 2011, by Representative Dennis
Baxley. A119 (Revised Jointly Stip. Facts ¶ 18). The bill was approved by the House
Government Operations Subcommittee, A119 (Revised Jointly Stip. Facts ¶ 24); see
A464-65, and then the House State Affairs Committee, A692-788 (House State Affairs
Comm. (Apr.14, 2011), after undergoing substantial revisions throughout the committee
process. On April 20 and 21, 2012, the House debated and amended HB 1355, A120
(Revised Jointly Stip. Facts ¶¶ 32-35); see A1149-1333 (House Sess. HB 1355 1st
Reading & Debate (Apr. 20, 2011)), before approving the bill by a vote of 79 to 37, A120
(Revised Jointly Stip. Facts ¶ 36).
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11. SB 2086 was introduced by Senator Miguel Diaz de la Portilla on March 29,
2011. A119 (Revised Jointly Stip. Facts ¶ 21). The bill was approved by the Senate
Rules Committee on Ethics and Elections, see A605-29 (Senate Rules Comm. (Apr. 4,
2011)), then the Senate Rules Committee, see A120 (Revised Jointly Stip. Facts ¶ 30),
and finally the Senate Budget Committee, A1640-42 (Senate Budget Comm. (Apr. 26,
2011)), after undergoing substantial revisions in each committee. On May 4, 2011, the
Senate adopted an amendment substituting HB 1355 for SB 2086, A121 (Revised Jointly
Stip. Facts ¶ 45), as well as an amendment that would shorten Florida’s early voting
period from 14 possible days to 8 days, but expand the maximum available hours on each
day from 8 to 12. See A1861-74 (Senate Sess. -- SB 2086/HB 1355 2nd Reading &
Debate (May 4, 2011)). The next day, the Senate debated HB 1355 and approved it by a
vote of 25 to 13. A121 (Revised Jointly Stip. Facts ¶ 49); see A2213 (Senate Floor
Debate (May 5, 2011)).
12. The House received the Senate’s version of HB 1355, debated the bill, and
approved it by a vote of 77 to 38 on May 5. A121-22 (Revised Jointly Stip. Facts
¶¶ 50-52).
13. On May 19, 2011, the bill was signed into law by Florida Governor Rick
Scott, and was subsequently codified at Florida Laws, ch. 2011-40. A122 (Revised
Jointly Stip. Facts ¶ 54). The particular changes at issue before us now appear in Fla.
Stat. §§ 101.045, 101.657(d) (2011).
14. Florida submitted the voting changes in HB 1355 to the Attorney General for
administrative preclearance on June 8, 2011. The submission was received by the
Department of Justice on June 9, 2011. A118 (Revised Jointly Stip. Facts ¶ 5); see [147]
Third Am. Compl. (“Fla. Compl.”) ¶ 30.
15. On July 29, 2011, the State withdrew four sets of voting changes from that
administrative preclearance process. See A219 (Letter from Daniel E. Nordby, Gen.
Counsel, Fla. Dep’t of State (July 29, 2011)). Those four sets of changes included the
inter-county mover and early voting changes at issue before us, along with changes
imposing additional requirements upon third-party voter registration organizations
(TPROs) and amendments to the provisions governing the time frame during which
signatures on citizen initiative petitions are valid (the “citizen initiative changes”). Id.;
see Fla. Compl. ¶¶ 28, 30.
16. The other 76 sets of changes in HB 1355 remained before the Department of
Justice for preclearance, and on August 8, 2011, the Attorney General precleared them.
See A118 (Revised Jointly Stip. Facts ¶ 8); Fla. Compl. ¶ 30.
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17. On August 1, 2011, Florida commenced this action seeking judicial
preclearance of its inter-county mover, TPRO, early voting, and citizen initiative changes.
See [1] Compl. Florida also filed a motion to convene a three-judge district court; that
motion was granted by an order dated August 9, 2011.
18. Early in the litigation, Florida amended its complaint twice: once on October
11, 2011, adding claims challenging the constitutionality of the Voting Rights Act, see
[39] First Am. Compl. ¶¶ 107-116; and once on October 24, 2011, to include a request for
judicial preclearance of the amended state regulations implementing the TPRO changes,
see [54] Second Am. Compl. ¶¶ 85-86 & Ex. B.
19. Throughout late August and early September, 2011, more than two dozen
individuals and organizations opposed to Florida’s voting changes -- including the Florida
State Conference of the NAACP, the National Council of La Raza, the League of Women
Voters of Florida, Project Vote, Voting for America, several Florida legislators and
election officials, and a number of registered Florida voters who are members of racial
and language minority groups -- filed motions to intervene as defendants in this action.
The court granted those motions on October 19, 2011, giving the defendant-intervenors
leave to intervene permissively pursuant to Rule 24(b)(1) of the Federal Rules of Civil
Procedure. See [42] Oct. 19, 2011 Order.
20. On October 18, 2011, Florida filed a motion to expedite, seeking a final ruling
on all of its claims in advance of its presidential preference primary on January 31, 2012.
See [41] Pl.’s Mot. to Expedite. This court denied that motion in part, for the reasons set
forth in a Memorandum Opinion issued on October 28, 2011. See [55] Oct. 28, 2011
Order; [56] Oct. 28, 2011 Mem. Op. Nonetheless, the court did adopt a somewhat
expedited schedule for both discovery and briefing. See [61] Scheduling & Procedures
Order (Nov. 3, 2011). Moreover, in an effort to further streamline the resolution of this
case, the court also bifurcated Florida’s statutory preclearance claims from its
constitutional challenges, and ordered separate briefing on those two subjects. See id. at
5; see also [94] Apr. 20, 2012 Order.
21. During the discovery phase of this case, the intervenors moved to compel
deposition testimony from four Florida legislators and two legislative staff members, but
a federal district court in Florida denied the motion on the grounds of legislative
privilege. See [70] Defendant-Intervenors’ Second Notice of Ancillary Proceedings at 2
& Ex. A; see also Florida v. United States, 4:12mc3 (N.D. Fla. Feb. 3, 2012).
22. In early March 2012, the United States informed the court that after
conducting discovery and reviewing the record, it had concluded that Florida had met its
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burden of demonstrating that the citizen initiative changes were neither enacted with a
discriminatory purpose nor will have retrogressive effects. See [79] March 8, 2012 Mem.
Order at 2-3. Accordingly, Florida re-submitted those changes for administrative
preclearance on March 9, 2012, and on March 21, 2012, the Attorney General informed
Florida that no objection would be interposed. See [84] United States’ Notice to the
Court. The parties then filed a stipulation of dismissal as to Count II of Florida’s Second
Amended Complaint, which dealt with those citizen initiative changes. See [85] Stip. of
Dismissal.
23. The discovery and briefing schedule regarding the three remaining sets of
voting changes was revised several times at the request of various parties. See, e.g., [87]
Scheduling & Procedures Order (March 27, 2012); [94] Apr. 20, 2012 Order. Ultimately,
the discovery period closed on February 29, 2012, although the parties were permitted to
take de bene esse depositions of a number of witnesses throughout April and May 2012,
and to submit supplemental or rebuttal declarations by some of their expert witnesses.
The parties then filed proposed findings of fact and conclusions of law on the basis of the
written record. Briefing on the statutory preclearance question was completed by May 24,
2012.
24. During an on-the-record telephonic conference on June 1, 2012, the parties
indicated that they saw no need for live testimony regarding Florida’s statutory
preclearance claims, “and represented that they [we]re satisfied with the record as it [had]
been submitted.” [106] June 5, 2012 Order at 1 n.1. Accordingly, the court did not hold a
live trial in this case. The full three-judge panel did, however, hear oral argument for 5
hours on the statutory preclearance issue on June 21, 2012. Thereafter, the court ordered
and received supplemental briefing from the parties with respect to several specific issues
raised during that hearing. The court also accepted a modified amicus curiae brief filed
by U.S. Senator Bill Nelson, the senior senator from Florida.
25. Meanwhile, the TPRO changes were the subject of collateral litigation in the
Northern District of Florida, where they were challenged on the grounds, inter alia, that
they violate the First Amendment and the National Voter Registration Act (NVRA). On
May 31, 2012, the district court issued an order preliminarily enjoining many of the
TPRO changes, finding that the plaintiffs were likely to prevail on their First Amendment
and NVRA objections to those changes. See League of Women Voters of Fla. v.
Browning, -- F. Supp. 2d --, 2012 WL 1957793 (N.D. Fla. May 31, 2012).
26. Florida notified this court on June 12, 2012, that in light of that preliminary
injunction, it would “no longer seek in this action to preclear the [TPRO] changes that the
[district court in Florida] preliminarily enjoined.” [109] Statement Regarding the Effect
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of the Recent Order in the N.D. Fla. at 2. Florida stated in that June 12 filing that it
would “voluntarily withdraw the enjoined [TPRO] Changes from this judicial
preclearance action,” id. at 5, indicating that it was waiting for a minor clarification from
the Florida district court before doing so, see id. at 3 n.2. Likewise, during the oral
argument on June 21, 2012, Florida stated that it would “withdraw the [provisions] that
have been preliminarily enjoined . . . [a]nd proceed on the remainder.” Oral Arg. Tr. 6:08
- 6:12.
27. On July 16, 2012, after weeks had passed without further word from Florida,
this court convened a telephonic status conference to determine whether the State had
made a decision regarding which TPRO provisions it would withdraw from the action,
and which it was still seeking to preclear. The State advised that it had not yet made a
final decision.
28. On August 10, 2012, the State informed the court that it had settled the TPRO
litigation in Florida. See [104] Mem. of Points and Authorities in Support of Pl.’s Mot.
for Leave to Amend the Compl. at 1. It filed a motion to amend its complaint in this case,
seeking to remove from its request for preclearance those TPRO changes that the district
court in Florida had enjoined, while keeping the remaining changes, some in modified
form. See id. at 4 n.1, 5. On August 13, Florida advised the court that it would promptly
submit the remaining, non-enjoined TPRO changes to the Attorney General for
administrative preclearance. On August 15, the court granted Florida’s unopposed
motion to amend its complaint.
C. Voting Changes at Issue
1. Early Voting
29. Florida enacted the law that was in effect immediately prior to HB 1355 in
2005. That law provided that the State’s potential early voting period was 14 days,
beginning on the 15th day before an election and ending on the second day before that
election. See Fla. Laws ch. 2005-277. That law also limited the available early voting
hours to exactly 8 hours per day on weekdays and 8 hours in the aggregate over each
weekend, yielding a total of 96 hours of early voting. See Fla. Stat. § 101.657(d) (2006).
Early voting sites were required to “open no sooner than 7 a.m. and close no later than 7
p.m. on each applicable day.” Id. Local supervisors were free to select the specific
voting hours for each voting day as they saw fit. See id. The statute was precleared by
the Attorney General on September 6, 2005, see A9002-03, and it is the most recent law
in force or effect in Florida and the covered counties prior to the 2011 amendments in HB
1355.
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30. Under that prior law, local supervisors of elections in each of the five covered
counties have chosen a range of voting hours varying by election and early voting site.
The following five permutations were used by the covered counties in recent elections:
(1) 8 a.m. to 1 p.m. and 2 p.m. to 5 p.m.; (2) 8:30 a.m. to 4:30 p.m.; (3) 9 a.m. to 5 p.m.;
(4) 10 a.m. to 6 p.m.; and (5) 10:30 a.m. to 6:30 p.m. See A8533-34, 8539, 8542-43,
8549, 8560, 8564-65, 8570, 8581, 8584-85, 8591, 8604, 8607-09, 8614-15 (Fla.’s Resps.
to First Set of Interrogs. of Def. United States, Ex. D); [136] United States’ Resp. to the
Benchmark Questions Raised by the July 3, 2012 Minute Order, Attach. 1 at 5, 9-10, 12,
24-25, 27, 31.
31. In each of Florida’s five covered counties, local supervisors of elections also
exercised their discretion to offer weekend early voting only on Saturdays. See A3194
(Sawyer Dep.); A3415 (Dep. of Jennifer Edwards, Collier County SOE); A3495 (Dep. of
Lucretia Strickland, Hendry County SOE); A3841 (Lennard Dep.); A3912 (Dep. of
Jeffery Ussery, Hardee County SOE). In other words, election officials satisfied the
mandate that they offer “8 hours [of early voting] in the aggregate each weekend” by
offering 8 Saturday hours of early voting on each of the two weekends that were required
under the pre-2011 early voting law, Fla. Stat. § 101.657(d) (2010). This meant that in
each covered county, only 12 of the available 14 days of early voting were actually used,
and no covered county ever offered early voting on Sundays.1
32. HB 1355 amended the number of days, the number of hours, the specific
hours, and the weekend times that early voting may be offered in Florida. First, under the
new law, the early voting period begins “on the 10th day before an election . . . and end[s]
on the 3rd day before the election,” for a total of only 8 days instead of the previous 12.
Fla. Stat. § 101.657(d) (2011).
33. Second, the law now gives local election supervisors the discretion to
determine the number of daily hours of early voting in their counties, subject to the
constraint that “no less than 6 hours and no more than 12 hours” be offered on each of the
8 early voting days. Id. As a result, Florida’s covered counties might still offer the same
total hours of early voting (96 hours) that were required under the pre-2011 law, but only
if their local election supervisors decide to offer the maximum 12 hours of early voting on
each of the 8 days. If, on the other hand, a local supervisor chooses to offer the
minimum number of hours (i.e., 6 hours per day), then the early voting period would last
only 48 hours in total -- exactly half of the hours that were offered under the prior law.
1
By contrast, some of Florida’s non-covered counties offered early voting hours on
Sundays, including the Sunday immediately before Election Day. See, e.g., A2936 (Dep.
of Penelope Townsley, Miami-Dade County SOE).
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34. Third, the new law also removes the requirement that voting take place
between 7 a.m. and 7 p.m. each day. Instead, local supervisors of elections have the
discretion to determine the specific hours of early voting in their counties, as long as they
offer “no less than 6 hours and no more than 12 hours” each day. Id. In the event that
local election supervisors offer the maximum 12 hours of early voting on a given day,
then the early voting hours for that day would necessarily include hours that fall outside
the standard 8-hour workday extending from 9 a.m. to 5 p.m. However, in the event
election supervisors offer the minimum 6 hours of early voting on a given day, the 6-hour
early voting day may be entirely within, entirely outside, or straddle the standard
workday.
35. Fourth, the new early voting statute also mandates some additional weekend
hours of early voting. In particular, the new early voting period runs from the Saturday
two weekends before the election to the Saturday immediately before Election Day, see
id., meaning that the early voting period under HB 1355 now requires three weekend days
of early voting: two Saturdays and one Sunday. And as already explained, the new
statute mandates anywhere from 6 to 12 early voting hours on each day. Id. Accordingly,
if HB 1355 were implemented in the covered counties, it would result in at least 6 (and up
to 12) hours of Sunday early voting that were never before offered in those counties.
Moreover, election officials would also have the discretion to offer up to 36 total hours of
weekend early voting (12 hours per day on each of 3 weekend days) -- for a net gain of 20
weekend early voting hours over the prior law, which offered exactly 16 weekend hours
(8 hours in the aggregate on each of two weekends).
2. Inter-County Movers
36. In 2005, Florida amended its Election Code to allow voters to make inter-
county address changes at the polls and then cast a regular ballot. Under that version of
the law -- which was precleared by the Department of Justice on September 6, 2005, see
A9002-03, and which is the most recent pre-2011 statute in force and effect in Florida --
inter-county movers were required to complete an affidavit of change of address or a
voter registration application, listing their new address of residence and affirming that
they had not already voted in the precinct of their former residence. See Fla. Stat.
§ 101.045(2)(a) (2006). After their eligibility to vote was verified, such voters could then
cast a regular ballot, which would be canvassed and counted like all other ballots. Id.§ 101.045(2)(c)-(d).
37. Under HB 1355, however, “an elector whose change of address is from
outside the county may not change his or her legal residence at the polling place and vote
a regular ballot.” Fla. Stat. § 101.045(2)(b) (2011). Instead, “such elector is entitled to
vote a provisional ballot.” Id. The only exception is for “active uniformed services
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voter[s]” and members of their families, who are still permitted to cast a regular ballot
after affirming their inter-county change of address and having their eligibility verified.
Id.
38. Once completed, provisional ballots cast by inter-county movers “shall be
placed in a secrecy envelope and thereafter sealed in a provisional ballot envelope.” Id.§ 101.048(1). The provisional ballots will then be deposited in a ballot box and returned
to election officials, whereupon the county canvassing board will examine the ballots to
determine if the voters were eligible to vote at that precinct and had not already cast a
ballot in the election. Id. § 101.048(2)(a).
39. Under Florida law (both pre- and post-2011), “[a] ballot of a person casting a
provisional ballot shall be counted unless the canvassing board determines by a
preponderance of the evidence that the person was not entitled to vote.” Id. (emphasis
added); see also id. § 101.048(2)(b)(1)-(2). Moreover, voters who are required to cast a
provisional ballot are permitted -- though not required -- “to present written evidence
supporting [their] eligibility to vote to the supervisor of elections by not later than 5 p.m.
on the second day following the election.” Id. § 101.048(1). Provisional voters must be
given written instructions concerning that right, and “[e]ach supervisor of elections shall
establish a free access system that allows each person who casts a provisional ballot to
determine whether his or her provisional ballot was counted in the final canvass of votes
and, if not, the reasons why.” Id. § 101.048(5)-(6).
40. HB 1355 also makes pre-election address changes easier for Florida voters.
Under the pre-2011 law, inter-county address changes had to be completed “using a voter
registration application signed by the elector.” Fla. Stat. § 97.1031(2) (2010). Now,
however, voters can notify the supervisor of elections of their change of address by
“[s]ubmitting the change on a voter registration application or other signed, written
notice,” or by “[c]ontacting the supervisor of elections via telephone or electronic
means.” Fla. Stat. § 97.1031(1)(b) (2011).
II. Effects
41. In the appendices to their proposed findings of fact and conclusions of law,
the parties have submitted reports, declarations, and deposition testimony from a number
of witnesses, including expert witnesses for each party, several Florida state legislators,
representatives and volunteers from third-party voter registration organizations, local
election supervisors from each of the five covered counties (as well as several other non-
covered Florida counties), employees of the Florida Department of State, and several
other individuals with knowledge of how the new law might affect voters in Florida’s
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covered counties. That testimony, combined with other record evidence, allows us to
make the following findings regarding the likely effects of the 2011 voting changes.
A. Early Voting Changes
1. Voters Affected by Early Voting Changes
42. We find that minority voters disproportionately use early in-person voting, and
therefore will be disproportionately affected by the changes in early voting procedures.
43. As the intervenors’ expert witness, Professor Paul Gronke,2 determined, the
proportion of African-American usage of early in-person voting in Florida “has exceeded
White usage of early in-person voting in four of five [recent] federal elections,” and
“substantially exceeded White usage in both the 2004 and 2008 presidential elections.”
A10092, 10104 (Am. Expert Report of Prof. Paul Gronke).3
44. In the 2008 general election, more than half (54%) of African-American
voters in Florida cast ballots using early in-person voting -- twice the rate of white voters.
A10106 (Am. Expert Report of Prof. Gronke, Ex. Seven); see A7818 (Expert Report of
Dr. Stewart, Attach. J). And although rates of early voting declined across the board in
2
Gronke is Professor of Political Science at Reed College and Director of the Early
Voting Information Center (EVIC), a “non-partisan center for the study of non-precinct
place voting in the United States.” A10087-88 (Am. Expert Report of Prof. Paul
Gronke). The principal focus of his research and writing since 2006 has been early
voting, and he has published numerous peer-reviewed articles and several book chapters
on the subject. See id. Indeed, Professor Gronke has been described -- even by Florida’s
expert witness -- as a “leading expert” in the field of early voting, A5835-36 (Dep. of
Prof. M.V. (Trey) Hood III); see also A5489 (Dep. of the United States’ expert, Dr.
Charles Stewart III) (stating that Prof. Gronke is “the person who’s . . . done the most and
is probably the most respected” in the field of early voting research). In reaching his
conclusions about early voting in this case, Professor Gronke used a data set assembled
by the United States’ expert witness, Dr. Stewart. A10092-93 (Am. Expert Report of
Prof. Gronke); see A7759-86, 7802-35 (Expert Report of Dr. Stewart) (explaining how
the data set was derived and displaying some of that data).
3
There is no evidence that Hispanic voters use early voting more often than white
voters. Rather, the data indicates that Hispanics and whites vote early at about the same
rates. See A7818 (Expert Report of Dr. Stewart, Attach. J); A10105 (Am. Expert Report
of Prof. Gronke, Ex. Six).
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2010, the African-American usage rate still exceeded the white rate by a factor of about
one-third in the 2010 general election. See A10106 (Am. Expert Report of Prof. Gronke,
Ex. Seven); see also A9091 (Rebuttal Decl. of Prof. Gronke) (“[T]here was a massive
increase, of nearly 75 percent, in the use of early in-person voting by African Americans”
between 2006 and 2010, and “[t]his increase in early in-person voting by African
Americans dramatically exceeded the increase among White voters.”).
45. These disproportionate usage rates hold true in Florida’s five covered counties
as well. In 2008, for example, 52% of all African-American voters in the covered
counties cast an early in-person ballot, compared to only 28% of white voters. Id. at
A10095-96, 10105; see also id. at A7821 (Expert Report of Dr. Stewart, Attach. M).
African-American rates of early in-person voting in the five covered counties also
“remained statistically significantly higher [than white rates] in the 2010 primary and
general elections.” A10096 (Am. Expert Report of Prof. Gronke). Even Florida’s own
expert witness, Professor M.V. (Trey) Hood III, acknowledged that he “can see the
pattern” of higher levels of African-American usage of early in-person voting in the
covered counties after the 2008 primary election. A5855 (Hood Dep.); see also A9041-
42 (Expert Report of Prof. Hood) (showing that the African-American rates of early
voting in the covered counties exceeded the rates of white voters to a significant degree in
the 2008 general election, the 2010 primary, and the 2010 general election (and, to a
lesser extent, in the 2008 primary)).
46. Furthermore, all available evidence suggests that these trends “will continue
into the 2012 general [election] and likely in[to] the future.” See A9918 (De Bene Esse
Dep. of Prof. Gronke); A10096 (Am. Expert Report of Prof. Gronke); A10079 (De Bene
Esse Dep. of Prof. Gronke) (“I think that history will show that 2008 ha[d] a particularly
high rate [of African-American early voting], but that that adoption rate by African-
Americans had a lasting impact, and that the higher rate of usage will continue.”); id. at
A10034-36. Florida’s expert likewise agreed that it is “more likely than not” that in the
2012 general election, the African-American usage rate of early in-person voting will be
higher than the white usage rate. A5875-76 (Hood Dep.).
47. The evidence also shows that African-American voters disproportionately
used the first five days of the preexisting early voting period -- i.e., the Monday through
Friday of the week that falls two weeks before Election Day -- all of which will now be
eliminated under HB 1355. In the 2008 general Presidential election, for example,
approximately 17.25% of African-American voters in the covered counties cast an early
in-person ballot during the first five days of early voting (the so-called “repealed days” of
early voting), compared to only 9.3% of white voters. A10097 (Am. Expert Report of
Prof. Gronke); see A7821 (Expert Report of Dr. Stewart, Attach. M). In other words,
11
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African-American voters used the repealed days of early voting at rates nearly double
those of white voters in 2008. The difference between these percentages “far exceeds the
. . . statistical significance criterion.” A10097 (Am. Expert Report of Prof. Gronke).
48. The data with respect to use of the repealed days in the 2010 elections is more
inconclusive. In the 2010 primary election, African-Americans “continued to vote at a
higher rate” than whites during the first week of early voting. A10097 (Am. Expert
Report of Prof. Gronke) (describing a usage rate of 7.91% for African-American voters,
compared to 6.84% for white voters). In the 2010 general election, however, African-
Americans voted at a slightly lower rate than whites during that first week. Id. (indicating
that 6.88% of African-Americans voted during the repealed days in the 2010 general
election, compared to 8.34% of whites). It is unclear whether either of these differences
is statistically significant: Professor Gronke testified that he believed that both were, see
A6211-13 (Gronke Dep.), but the record does not contain any statistical significance
calculations, and Professor Gronke’s expert report does not mention any conclusions to
that effect, see A10097.
49. In finding that African-American voters in the covered counties will be
disproportionately affected by the reduction in early voting days under the new law, we
reject the contrary opinions of Florida’s expert witness, Professor Hood.4 We do so
because we find that the analysis underlying his conclusions suffers from a number of
methodological flaws.
50. First, Professor Hood asserts that the effects of the early voting changes will
be “disproportionately borne by [white] voters” because they “comprise the greatest share
of total number of early votes cast” in the covered counties. A9061 (Expert Report of
Prof. Hood). But as the intervenors’ expert, Professor Gronke, convincingly explains,
this “analytic method violates a basic tenet of comparative analysis” because it fails to
“control for . . . the size of the underlying subgroups.” A9089 (Rebuttal Decl. of Prof.
Gronke). After all, it is “no surprise that [white] voters are . . . the majority of users of
early in-person voting” because they also represent “the vast majority of all Florida
voters,” id. (emphasis added), including those in the covered counties, see A7683-84
(Expert Report and Decl. of Russell Weaver) (collecting census data in the covered
counties). See also A7821 (Expert Report of Dr. Stewart, Attach. M) (showing that
525,324 white voters cast a ballot in the 2008 general election, compared to only 86,314
4
Professor Hood is Professor of Political Science at the University of Georgia. He
has authored only one publication and one conference paper dealing with early voting,
and admits that, unlike the intervenors’ expert (Professor Gronke), he is not a “leading
expert in the field of early voting.” A5833-34 (Hood Dep.).
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African-American voters and 66,391 Hispanic voters); A7684 (Expert Report and Decl.
of Russell Weaver) (collecting census data showing that in the 2010 general election,
approximately 70% of the registered voters in the covered counties were white, while
African-Americans and Hispanics each made up only approximately 12% of the voting
population in those counties). That is why, as Professor Gronke explains, adjusting for
population demographics is critical in assessing the potential retrogressive effects of a
given voting change:
[I]f you simply look at the absolute number of impacted voters, inevitably
it’s going to look like whites are most impacted simply because they
constitute more of the voters. . . . It’s simply misleading if you’re going to
be looking at the impact on race to look at absolute numbers because all
you’re going to do when you look at absolute numbers is . . . examin[e]
whether one group is larger or smaller. . . . You’re not considering the
impact of race on the rates of usage.
A9888-90 (De Bene Esse Dep. of Prof. Gronke); see A9089 n.1 (Rebuttal Decl. of Prof.
Gronke) (explaining how Prof. Hood’s flawed analysis could lead to endorsing a poll tax
that has an obviously disparate impact on minority voters). As even Professor Hood
concedes, the accepted practice in the social sciences is to look at the rate of impact on
different groups, not simply absolute numbers. A5926-28 (Hood Dep.). Yet his
calculations do not follow that accepted method of statistical analysis. See id. at 5840-42.
51. Second, we reject other calculations in Professor Hood’s expert report because
we agree with the intervenors’ expert that “[i]n several instances Professor Hood
inappropriately pools together groups of dissimilar data, which is not methodologically
appropriate.” A9092 (Rebuttal Decl. of Prof. Gronke). For example, Professor Hood
“attempts to draw conclusions based on data ‘pooled’ from different kinds of elections,
without offering a reason to believe that early voting patterns are in fact common across
the different types of elections.” Id. And “[t]here is no evidence that Professor Hood
conducted a pooling test, a statistical tool that helps determine whether it is valid to
aggregate data” from those different types of elections. Id.; see A5762-64 (Hood Dep.)
(conceding that he pooled the data without running any of the standard statistical tests to
determine whether such pooling was appropriate). This problem is exacerbated by the
fact that Professor Hood often “aggregat[es] data from all elections analyzed in his Report
except for the 2008 general election,” thereby further distorting the data. A9092
(Rebuttal Decl. of Prof. Gronke).
52. Professor Hood also frequently lumps African-Americans and Hispanics into a
single category of “Minorities,” which misleadingly flattens the data because, unlike
13
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African-Americans, Hispanic voters use early voting at about the same rate as whites.
See A7818 (Expert Report of Dr. Stewart, Attach. J); A10105 (Am. Expert Report of
Prof. Gronke, Ex. Six). This “masks significant differences between White and African-
American rates of early in-person voting.” A9092 (Rebuttal Decl. of Prof. Gronke). As
Professor Gronke notes, “[i]t is inconsistent with political science research standards to
pool together these two racial groups when they demonstrate different behaviors in
voting.” Id. at 9093.
53. Finally, for several reasons, we reject Professor Hood’s contention that the
2008 general election was an “outlier” that should be ignored. A9042 (Expert Report of
Prof. Hood); see id. at A9043, A9061. First, although the 2008 election was of course
unique in certain respects, the record does not support the assertion that that election was
an “outlier” that can be discarded out of hand. Rather, the record evidence suggests that
the 2008 election is highly predictive of what is likely to happen in 2012. The expert
witnesses in this case are all generally in agreement that, when assessing future usage
rates of early voting, comparisons are best made between “like” elections, and that the
most recent analogous election is the best predictor of what will happen in the future.
Accordingly, the 2008 general Presidential election represents the best guidepost for
projecting how early in-person voting will be used in the upcoming 2012 general
Presidential election. See, e.g., A5657-58 (Stewart Dep.); A9091 (Rebuttal Decl. of Prof.
Gronke); A10098 (Am. Expert Report of Prof. Gronke); see also A5867-68 (Hood Dep.)
(conceding that “the 2008 presidential election would be our best gauge” of “what’s
going to occur in the 2012 general election”). For this reason alone, “it is not by any
means an ‘outlier’ in terms of predictive value.” A9091 (Rebuttal Decl. of Prof. Gronke).
And that is particularly true because many of the factors that supposedly rendered the
2008 election “anomalous” will again be factors in 2012:
[B]ecause President Obama will be on the ballot in 2012, that election will
present another ‘historic’ moment in that the first African American
president will be seeking to win a second term. Thus, many of the factors at
play in 2008 -- e.g., increased get-out-the vote efforts, and the intensity of
interest in the African American community -- will come into play again in
2012.
Id.
54. Moreover, even setting aside the specifics of the 2008 and 2012 general
elections, the record indicates that the 2008 general election was not a mere one-off
phenomenon. The trend of increased African-American usage of early in-person voting
pre-dated 2008 to some degree: African-American early voting rates in Florida exceeded
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white early voting rates in 2004, as well. See A10092, 10104 (Am. Expert Report of
Prof. Gronke). And after the 2008 election, the rates of African-American usage of early
in-person voting in Florida have continued to exceed those of white voters to a
statistically significant degree. See, e.g., A9090 (Rebuttal Decl. of Prof. Gronke). Hence,
it is not true, in the words of Florida’s expert, that once the 2008 election is removed from
the picture the rates of white and African-American early voting are “roughly
comparable,” A9041 (Expert Report of Prof. Hood). And in any event, “[t]he term
‘roughly comparable’ is not an accepted term of art or standard for statistical comparisons
in the field of political science research.” A9090 (Rebuttal Decl. of Prof. Gronke).
Rather, “[t]he methodologically appropriate starting point is to determine whether the
differences are statistically significant.” Id.5 And, even discounting the 2008 election,
the data shows a clear and statistically significant “trend of higher usage [of early voting]
over time by African American voters in the Covered Counties and statewide.” Id.; see
A9090 (Rebuttal Decl. of Prof. Gronke).
55. In short, rather than being an “outlier,” the evidence suggests that the 2008
general election is best seen as a “game-changer” that simply magnified already nascent
trends in African-American preferences for early in-person voting. See A10069 (De Bene
Esse Dep. of Prof. Gronke).6 Indeed, Florida’s own expert witness acknowledges that the
2008 election was not an outlier when compared to the relative rates of African-American
versus white early in-person voting in the four most recent federal elections in Florida.
A5965-66 (Hood Dep.). As such, there is no sound basis for disregarding the 2008
5
Similarly, Florida’s reliance on a statement by the United States’ expert witness,
that “Black, White, and Hispanic voters all utilized early voting at roughly the same rates
both before and after the 2008 general election,” A7785 (Expert Report of Dr. Stewart), is
unavailing. That statement, Dr. Stewart said, was based on “interocular” or “visual”
observations, not on statistical tests. See A10680-82 (De Bene Esse Dep. of Dr. Stewart).
The court therefore accords the statement little weight.
6
Although in a 2009 paper Professor Gronke himself described the 2008 election
as “anomalous,” see A10192, 10211 (Gronke, Hicks, & Toffey, N=1? The Anomalous
2008 Election and Lessons for Reform (2009)), he explained at his deposition that he did
so in the immediate wake of the 2008 election, without the benefit of data from the 2010
elections showing that the trend of increased African-American early voting had
continued. See A10051-53, 10077-79 (De Bene Esse Dep. of Prof. Gronke). The
“intention of the whole paper,” he explained, was simply to communicate that in 2009 it
“was too soon to draw conclusions” as to the effects of the 2008 election. Id. at A10068.
The court therefore does not find this to be a basis for discounting Professor Gronke’s
conclusions in this case.
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election in our evaluation of the effects of the new statute’s changes in early voting
procedures.
2. Burdens Imposed by Early Voting Changes (at 48 Hours)
56. As a preliminary matter, we cannot predict with any confidence the number of
early voting hours the covered counties will offer. No covered county’s election
supervisor has submitted a county plan for preclearance. Most of the supervisors’
responses to questioning by the defendants on this subject may at best be described as
equivocal. See, e.g., A3400-3401, 3447-48 (Edwards Dep.); A3999 (Ussery Dep.). And
at least one covered-county supervisor indicated that she would not use the full 96 hours
of early voting, unless required to do so. See A3530-32 (Dep. of Lucretia Strickland,
Hendry County SOE). Moreover, Florida acknowledges that it “has not issued any rule,
directive, or guidance to Florida supervisors of elections . . . regarding the manner in
which [they] should exercise the discretion granted by HB 1355” to determine the number
of early voting hours in their counties. A8283 (Fla. Resp. to Req. for Admiss. No. 18).
57. If the covered counties offer only 48 hours of early voting (i.e., only 6 hours
per day) as the new law permits, that change would impose a material burden on African-
American voters’ effective exercise of the electoral franchise. Under such circumstances,
not only would the number of early voting days be reduced by one-third (from 12 to 8),
but the total available early voting hours would be cut in half (from 96 to 48). Moreover,
with only 6 hours available per day, it is likely that early voting would start after the
workday starts and would end before the workday ends, making it even more inaccessible
to many minority voters who have inflexible work schedules. See A9142-43 (Decl. of
Cynthia Slater, 2d Vice-President of Florida NAACP).
58. A two-week early voting period is important to get-out-the-vote (GOTV)
efforts in minority communities. See, e.g., A9143 (Slater Decl.); A9227-28 (Decl. of
Rev. Charles McKenzie, Florida state liaison for the Rainbow PUSH Coalition);
A9237-38 (Decl. of Ella Kate Coffee, African-American resident and GOTV volunteer in
Hillsborough county). Record evidence suggests that such efforts are important in
enabling African-Americans “who want to vote but need help getting to the polls” to
exercise the franchise. A9237 (Coffee Decl.); see A7693 (Expert Report and Decl. of
Russell Weaver, Ex. 2). With a substantially reduced early voting period, third-party
groups would not be able to assist minority voters as effectively. See A9237. This, in
turn, would likely make it more difficult for those minority voters who rely on such
efforts to make it to the polls. Florida has not submitted any evidence to the contrary.
Indeed, although Florida’s expert witness initially hypothesized that early voters should
be able to adjust to even such a dramatic contraction in the early voting period, A9059-60
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(Expert Report of Prof. Hood), he later conceded that there is no empirical support for
that claim, and that it was nothing more than an “assumption” or “supposition” on his
part, A5861, 5917-22 (Hood Dep.); see A9095 (Rebuttal Decl. of Prof. Gronke) (“I know
of no empirical support for the conclusion that voters will successfully adjust . . . under
these conditions.”).
59. Moreover, even if all of the voters who would have used the repealed days of
early voting did attempt to adjust to a shortened early voting schedule of only 48 hours
over 8 days, that shift would create problems of its own for minority voting. In the 2008
general election, for example, 71,670 voters -- 14,897 of whom were African-American
-- cast ballots in the covered counties during the early voting days that the new law has
repealed. See A7820-21 (Expert Report of Dr. Stewart, Attachs. L & M); see also
A9054-57 (Expert Report of Prof. Hood) (showing that approximately one-third to two-
fifths of early voters voted in the first (repealed) week of early voting). According to
testimony in the record, a shift of that magnitude to the remaining early voting days
would lead to substantially increased lines, overcrowding, and confusion at the polls,
which would in turn discourage some reasonable minority voters from waiting to cast
their ballots. See, e.g., A3170-71, 3183-87 (Dep. of Harry Sawyer, Monroe County
SOE); A3744-45, 3748 (Dep. of Earl Lennard, Hillsborough County SOE). Indeed,
election officials in Florida have testified that an extensive early voting period is
necessary because Florida’s “electoral infrastructure is completely maxed out,” A440
(House State Affairs Comm. (Apr. 1, 2011) (Statement of Ion Sancho, Leon County
SOE)), such that the State “would not be able to process record numbers of voters” in a
substantially shorter time frame, A976-78 (Senate Rules Comm. (Apr. 15, 2011) (Sancho
Statement)). Florida legislators, too, have warned that a “shortened period of early voting
will cause congestion and long lines in populous areas of the State, including
predominantly African-American neighborhoods in Hillsborough County,” and will
thereby “discourage [minority] voters from voting.” A9108 (Decl. of Sen. Arthenia
Joyner).
60. The academic scholarship and commentary is currently in a state of flux as to
how the availability of early in-person voting affects overall voter turnout. The consensus
prior to the 2008 election appears to have been that early in-person voting was a
convenience that had an “insignificant or marginal effect on increasing the likelihood
[that] an individual will vote.” A10131 (Robert Stein & Greg Vonnahme, Early,
Absentee, and Mail-in Voting, in T HE O XFORD H ANDBOOK OF A M. E LECTIONS & P OL.
B EHAVIOR (Jan Leighly, ed., 2010), at 185); see A5496 (Stewart Dep.) (“[T]he research
up until around 2008 . . . is that, in general, early voting procedures make voting more
convenient for people who look like they have a . . . propensity to vote, but do[] not
generally increase turnout overall.”); see also A9093-95 (Rebuttal Decl. of Prof. Gronke).
17
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Although Professor Gronke contended in his rebuttal declaration that “his own
comprehensive review of the literature in 2008” showed that “convenience voting has a
small but statistically significant impact on turnout, with most estimates of the increase in
the 2%-4% range,” A9094 (Rebuttal Decl. of Prof. Gronke), during his de bene esse
deposition he backed off that claim, admitting that he “cannot put [his] finger on one
particular statement” in any of the 2008 or pre-2008 literature “that indicates that early in-
person voting specifically has a relationship to overall turnout.” A9986 (De Bene Esse
Dep. of Prof. Gronke); see id. at A9981-83.
61. According to the intervenors’ expert, however, “[t]he 2008 presidential and
subsequent elections have challenged the conventional wisdom [regarding early voting],
primarily because of changing voting patterns in the South.” A10091 (Am. Expert Report
of Prof. Gronke). And the United States’ expert further states that “the issue that
[post-2008] research raises is whether the use of early voting in 2008 may . . . have been
related to a surge in turnout in 2008. So there may be something new afoot.” A5497
(Stewart Dep.). Moreover, even if early voting by itself does not affect overall voter
turnout, there is evidence that it may do so when combined with other factors, such as
GOTV drives. Indeed, “[t]here is a growing literature that takes a more nuanced
approach to examining the relationship between convenience voting and turnout,
conjecturing that although reforms may not increase overall participation, they may . . .
have an impact . . . when combined with party mobilization efforts.” A7926 (Paul
Gronke et al., Convenience Voting, 11 A NN. R EV. P OL. S CI. 437, 443 (2008)); see A8009
(Paul Gronke, Early Voting Reforms & Am. Elections, W M. & M ARY B ILL OF R TS. J. 423,
432 (2008)) (stating that “[e]nough research has accumulated” for scholars to conclude
that early voting “does encourage regular voters to participate in lower intensity contests
that they might otherwise skip”); A9094 (Rebuttal Decl. of Prof. Gronke) (stating that,
“[s]ince non-habitual voters are less likely to vote, early or on election day, convenience
may have a significant and positive effect on their decision to vote” as well). The court
finds that “there is not currently a consensus . . . that there is no effect of early in-person
voting on turnout.” A9984 (De Bene Esse Dep. of Prof. Gronke).
62. Moreover, the literature that Florida cites addresses only the question of how
adding early voting days affects overall voter turnout. It does not address the specific
question before us: how decreasing an established early voting period from 12 days to 8
days (and from 96 hours to only 48) will affect African-American voter turnout. Hence,
even if the addition of early voting days does not significantly increase turnout, “it is not
methodologically sound to assume that there will . . . be little or no impact on overall
turnout when voters (who have habituated to early in-person voting) face a loss of
previously available voting days.” A9095 (Rebuttal Decl. of Prof. Gronke). Indeed,
common sense suggests the opposite.
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63. Finally, HB 1355 mandates a Sunday of early voting that was not previously
offered in any of the covered counties. And given the importance of Sunday early voting
for “souls to the polls” drives in the African-American community, see infra ¶ 68, that
adjustment can be expected to have some positive effects on the ability of African-
Americans to reach the polls. Nonetheless, those 6 hours of Sunday early voting would
represent the only ameliorative aspect of the new law if the covered counties were to
implement it by choosing the bare minimum number of hours. Indeed, the county would
offer 2 fewer hours on each Saturday (6 rather than the previous 8). We find that shifting
one of the remaining 8 days to a Sunday would not make up for a 4-day and 48-hour
decrease in early voting.
64. In sum, Florida is left with nothing to rebut either the testimony of the
defendants’ witnesses or the common-sense judgment that a dramatic reduction in the
form of voting that is disproportionately used by African-Americans would make it
materially more difficult for some minority voters to cast a ballot than under the prior law.
3. Burdens Imposed by Early Voting Changes (at 96 Hours)
65. It is possible, however, that the counties will opt to provide substantially more
hours than the minimum of 48 hours permitted by the early voting changes. If the
covered counties did offer the maximum of 96 possible hours of early voting, voters
would have exactly the same total number of hours for early voting as under the
preexisting law: 96 hours. Those hours would simply be distributed over a fewer number
of days.7
7
Although 12 hours of early voting per day is a significant number of hours, the
record persuades us that it would not be difficult or unusual for the covered counties to
offer that many hours. As we have mentioned, all Florida counties are already required to
offer voting for 12 hours (from 7 a.m. to 7 p.m.) on Election Day, Fla. Stat. § 100.011(1)
(2011), and several supervisors of elections in the covered counties have testified that
they would like to offer 12 daily hours of early voting as well, at least for the upcoming
general election, see A3400-3401, 3447-48 (Edwards Dep.); A3999 (Ussery Dep.).
Moreover, several non-covered counties in the same geographic area as the covered
counties -- and which represent a broad cross-section of various sizes and population
densities -- have already adopted 12 daily hours of early voting under the new statute.
See Charlotte County, http://www.charlottevotes.com/ (offering 12 hours per day in both
the 2012 primary and general elections); Miami-Dade County,
http://www.miamidade.gov/elections/ vote_early.asp (offering 12 hours per day in the
August 2012 primary); Pinellas County, http://www.votepinellas.com/ (same); Broward
County, http://www.browardsoe.org/ content.aspx?id=152 (offering 12 hours per day in
19
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66. Although voters would not be able to vote during 4 days that were previously
available even if the counties offer 96 hours of early voting, they would be able to vote
during 4 hours each day that were not. Moreover, if election supervisors utilize a
standard 7 a.m. to 7 p.m. voting day, this means that weekday voters would not have to
vote during working hours, but could instead get to the polls before or after work --
during the morning and evening hours that would be most convenient for weekday voters
and that would be more extended than those offered in any recent election. As the
supervisor of elections in Hillsborough County stated, “some hours are more accessible to
people than other hours,” and both “[t]he early morning hours earlier in the day” and
hours “in the afternoon . . . following work” can be helpful for some voters who “have the
opportunity” to vote at those times. A3765 (Lennard Dep.); see A9095 (Rebuttal Decl. of
Prof. Gronke) (“Certainly more hours of voting per day can benefit voters, and there are
studies . . . showing the positive benefits of expanded hours outside of the normal
business day.”); A10511 (testimony from an election official in a non-covered county
that, “when the polls open [at] 7 a.m.,” there will generally “be lines that have already
formed” with voters who are “waiting for the precinct to open”).8
67. The new early voting statute also requires the covered counties to offer early
voting for at least six hours on the Sunday nine days before Election Day. See Fla. Stat.
§ 101.657(d) (2011). Although the old early voting law permitted counties to offer early
voting on that Sunday, as well as on the Sunday immediately before Election Day, see
Fla. Stat. § 101.657(d) (2010), none of the covered counties ever did so. And if the
covered counties offer the maximum number of hours of early voting each day, the result
would be an additional 12 hours of Sunday early voting that were never before offered in
those counties.
68. The addition of Sunday voting is important. As the defendants stressed, many
African-American churches organize “souls to the polls” drives to transport their
congregants to early voting sites on the Sunday immediately before Election Day, see
A9109 (Joyner Decl.); A9193-94 (Decl. of Rev. Thomas Scott), and that Sunday is
therefore disproportionately used by African-American voters in jurisdictions that have
early voting on that day, see A10098 (Am. Expert Report of Prof. Gronke); see also DOJ
Br. 51; A9225 (Decl. of Rev. Charles McKenzie). The court finds that opening the polls
the November 2012 general election); Pasco County,
http://www.pascovotes.com/pasevot.asp (same).
8
Early voters also tend to cluster around lunch hours. See, e.g., A3202, 3030-31
(Sawyer Dep.); A3809-10 A3765 (Lennard Dep.); A3981-82 (Ussery Dep.); A9179
(Sancho Decl.).
20
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on the previous Sunday would also facilitate voting by African-American voters. Even
Senator Joyner, who opposed the reduction in early voting days, testified that if HB 1355
“were precleared and were put into effect in Hillsborough County,” she would
“[a]bsolutely . . . expect the predominantly African-American churches in Hillsborough
County to organize Souls to the Polls drives” on that day. A9814 (Joyner Dep.).
Likewise, Professor Gronke agreed that he has “no reason to believe that [the additional
Sunday] would not be used” by African-American voters in such “souls to the polls”
drives. A10012-13 (De Bene Esse Dep. of Prof. Gronke).
69. For a county that offers the maximum 12 hours per day, the new law not only
adds the opportunity to vote for 12 hours on the Sunday that falls two weekends before
the election, but also increases the overall number of weekend hours on both that
weekend and the last weekend before the election. Under the preexisting practice, the
covered counties offered early voting for 8 hours on each Saturday, and not at all on
Sunday, yielding 16 total weekend hours of early voting. But if a county offers the
maximum hours under the new statute, it will provide early voting for 12 hours on each
weekend day (i.e., on both Saturday and Sunday) approximately one week before the
election, and for 12 hours on the last Saturday before the election. The total would then
be 36 weekend hours of early voting (12 hours on each of 3 weekend days), for a net gain
of 20 more weekend hours of early voting than under the preexisting law.
70. Like the added Sunday, those additional weekend hours of early voting are
significant. Florida election officials have testified, based on their experience, that
expanded weekend hours would provide increased accessibility for many minority voters.
See, e.g., A3447-48, 3450 (Edwards Dep.); A3611-12, 3770, 3846-47 (Lennard Dep.);
A10488 (Dep. of Ion Sancho, Leon County SOE). Florida legislators, including several
of the legislators who opposed the early voting changes and who are now intervenors in
this action, have concurred in that assessment. See A9801 (Joyner Dep.); A10254-55
(Cruz Dep.). And even the intervenors’ expert, Professor Gronke, concedes that
expanded early voting hours can be an added convenience for many voters. See A6161
(Gronke Dep.); A9095 (Rebuttal Decl. of Prof. Gronke); A10015 (De Bene Esse Dep. of
Prof. Gronke); see also A10187 (EVIC blog post by Professor Gronke, stating that
“weekend early voting” is “a potential inconvenience for officials to be sure, but one
which citizens will find very helpful”).
71. In sum, we find that, if the covered counties offer the maximum available
early voting hours each day on a standard 7 a.m. to 7 p.m. schedule, the negative effect of
reducing the number of days from 12 to 8 would likely be offset by the ameliorative
effects of adding non-working hours, a Sunday, and additional weekend hours.
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72. Moreover, many of the concerns that we discussed in connection with a
contraction of the early voting period to only 48 total hours are not likely to materialize
(certainly not to the same extent) if the full 96 hours of early voting are maintained on a
standard 7 a.m. to 7 p.m. schedule. For example, although representatives and volunteers
from minority voting rights groups have testified that “a two-week period has . . . been
essential to coordinating the logistics of GOTV efforts in the African American
community,” A9237 (Coffee Decl.); see A9227 (McKenzie Decl.), the record evidence
suggests that GOTV groups could adjust to a redistribution of the total 96 hours over a
different number of days, including weekend days and a “souls-to-the-polls” Sunday.
Indeed, one of the central concerns expressed by such groups is that minority voters
“frequently contend with issues such as lack of transportation or inflexible work and
family schedules, which make it difficult to reach the polls on Election Day.” A9143
(Slater Decl.). Expanding convenient non-working weekday voting hours should
therefore help third-party efforts to provide transportation to the polls for such voters.
73. The same is true of concerns regarding overcrowding and confusion at polling
places on the remaining early voting days (and Election Day) that could result from
reducing the total number of early voting days. This problem should be alleviated, if not
entirely eliminated, by the simultaneous expansion of early voting hours to 12 hours per
day on a 7 a.m. to 7 p.m. schedule. Indeed, election officials have testified that they
believe that, “by expanding the hours,” they would be able to “accommodate [the] early
voters” who may have been displaced by the elimination of the first five days of the old
early voting period. A3859 (Lennard Dep.). For the first time, early voters in the five
covered counties would have the benefit of an early voting period capturing the morning
and evening hours on both ends of the standard 9 a.m. to 5 p.m. workday. One supervisor
from a non-covered county did say that he did not think voters would adjust to the
expanded early voting hours because peak early voting times are not typically in the early
morning or after dark. See A9179 (Sancho Decl.). We find that this observation is of
little import, however, because early morning and evening voting hours were never
offered under the preexisting early voting plan. And even that supervisor acknowledged
that “[u]sually, we have a line when the polls open [on Election Day at] 7 a.m.” A10511
(Sancho Dep.).
74. For the foregoing reasons, we find that if the covered counties were to offer
early voting for 12 hours per day, from 7 a.m. to 7 p.m. over an 8-day early voting period,
including one previously-unavailable Sunday, they would likely satisfy their burden of
proving that the overall effect of the early voting changes would not materially burden
minority voters’ effective exercise of the franchise.
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B. Inter-County Mover Changes
1. Voters Affected by Inter-County Mover Changes
75. We find that, because minority voters were disproportionately more likely to
use prior procedures that allowed voters to make inter-county address changes at the polls
and then cast a regular ballot, the inter-county mover changes will disproportionately
affect minority voters. See A8901 (Supplemental Decl. of Dr. Stewart) (“[M]inority
voters are more likely to avail themselves of the law that is still in effect in the five
covered counties, which allows registered voters who have moved between counties to
simultaneously change their address and vote a regular ballot in their new home
county.”).
76. The relevant inter-county mover data was compiled and analyzed by the expert
witness for the United States, Dr. Charles Stewart III. It is derived from the results of a
database query regarding: (a) early voters who moved into a covered county and changed
their address during the early voting period; and (b) voters who moved into a covered
county and changed their address on or shortly after Election Day. See A8896
(Supplemental Decl. of Dr. Stewart); see also A9035 (E-mail from Wren Fowler, VR
Systems (Feb. 16, 2012)).
77. In reaching conclusions based on this data, Dr. Stewart was required to make
certain assumptions about whether the voters in the data set had actually changed their
addresses at the polls, rather than contacting election officials and updating their
addresses before going to vote. See A10648-52 (De Bene Esse Dep. of Dr. Stewart). As
such, it is possible that the data may over-estimate the numbers of inter-county movers to
some degree. The data set may also be over-inclusive because the results of the database
query include some voters whose addresses were changed in the voter registration
database shortly after Election Day. See A8895-96 (Supplemental Decl. of Dr. Stewart);
A9035.
78. Dr. Stewart reasonably assumed that many of those voters changed their
addresses on or slightly before Election Day, and that election officials simply did not
update the database until after the election. See id. at A10653-54. Ultimately, therefore,
we are persuaded that although the data set may not be perfect, it provides an “apt proxy
for the group of voters that are affected by the intercounty mover changes.” Id. at
A10655-56. Even if the total estimated number of inter-county movers is slightly
overstated, there is no reason to believe that the racial proportions of those voters would
be affected in any way.
79. The data demonstrates that in the most recent elections in Florida’s covered
counties for which there is data, the voters who moved inter-county and updated their
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addresses on or about Election Day were disproportionately likely to be members of a
minority group. Id. at A8907-09 (Attach. 5). More specifically, African-American and
Hispanic voters were statistically more likely than the average voter to be inter-county
movers in the 2008 and 2010 elections, both on Election Day and during the early voting
period, while white voters were statistically less likely to be inter-county movers. Id.
80. For example, in the 2008 general election, African-American voters comprised
only 13.3% of the non-moving voters in Florida’s covered counties, but made up 19.3%
of all inter-county movers in those counties. Id. at A8908. Hispanic voters comprised
only 10.1% of the non-moving voters, but accounted for 14.5% of the inter-county
movers. Id. Meanwhile, white voters made up 71.3% of the non-moving voters, but only
58.8% of the inter-county movers. Id.
81. The following table, which appears as part of Attachment 5 in Dr. Stewart’s
supplemental declaration, shows the percentages of both moving and non-moving voters
who were members of each of three racial groups (African-American, Hispanic, and
white) in the five elections that took place between 2008 and 2010 in Florida’s five
covered counties. Id. at 9808-09; see also id. at 8898-89 & n.18 (explaining the table).
24
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Election Black Hispanic White Total
2008 Pres. Non-moving voters 2.1% 3.9% 92.1% 90,123
Preference Inter-county movers 5.3% 14.9% 75.5% 94
Primary* Difference 3.2% 11.0% - 16.6%
2008 Primary Non-moving voters 11.7% 4.7% 81.1% 82,585
Inter-county movers 21.9% 9.4% 64.6% 96
Difference 10.2% 4.7% - 16.5%
2008 General Non-moving voters 13.3% 10.1% 71.3% 530,409
Inter-county movers 19.3% 14.5% 58.8% 2,240
Difference 6.0% 4.4% - 12.5%
2010 Primary Non-moving voters 8.7% 4.2% 84.7% 135,451
Inter-county movers 9.5% 8.8% 78.8% 137
Difference 0.8% 4.6% - 5.9%
2010 General Non-moving voters 10.9% 7.1% 78.3% 355,398
Inter-county movers 19.1% 16.0% 61.8% 613
Difference 8.2% 8.9% - 16.5%
* Data from Hillsborough County is not available for this particular election (the 2008
Presidential preference primary)
82. In examining this table, Dr. Stewart found that “[i]n every single calculation,
the percentage of black and Hispanic voters among the ‘movers’ is greater than the
percentage of black and Hispanic voters among the non-moving voters.” Id. at A8899.
By contrast, “[i]n every calculation [in the table reproduced above], the percentage of
white voters among the movers is less than the percentage of white voters among the
non-moving voters.” Id.9
9
Dr. Stewart also broke down the data into separate tables for Election Day and
early voting. See A8907-08 (Supplemental Decl. of Dr. Stewart). In the Election Day
table, one of the calculations (from the 2010 primary) showed a slightly positive
differential of 1.2% for white voters, meaning that the percentage of white voters among
the inter-county movers who cast ballots on Election Day in the 2010 primary was slightly
greater than the percentage of white voters among the non-movers who voted on Election
Day in that election. See id. at A8907. Nonetheless, when Election Day and early voting
were combined, the differential was once again negative (- 5.9%), as shown in the table
above. See A8908 (Supplemental Decl. of Dr. Stewart). And in any event, Election Day
voting in the 2010 primary represented the only positive differential between white inter-
county movers and white non-movers across all of Dr. Stewart’s tables. See id. at 8907-
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83. These disparities are statistically significant, with the exception of the 2010
primary election, which had very low overall voter turnout. See A8900-01 (Supplemental
Decl. of Dr. Stewart); see also id. at A8910 (Attach. 6, showing results of chi-squared
tests of statistical significance)
84. Thus, we credit Dr. Stewart’s conclusions that “[i]t’s clear to me that blacks,
whites, and Hispanics avail themselves of [the inter-county mover] procedures at different
rates than the underlying voting population,” A10667 (De Bene Esse Dep. of Dr.
Stewart), and that “minority voters [African-Americans and Hispanics] are more likely
[than white voters] to avail themselves” of the inter-county mover procedures, A8901
(Supplemental Decl. of Dr. Stewart).
85. Because Dr. Stewart’s tables demonstrate this phenomenon in a
rather oblique way, we have also used his data to calculate the percentages of voters
within each racial group (African-Americans, Hispanics, and whites) in the five covered
counties who were inter-county movers in each of the elections that Dr. Stewart analyzed.
The results of those calculations are displayed in the following table:
08 (Supplemental Decl. of Dr. Stewart, Attach. M).
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Election Black Hispanic White
2008 Pres. # of voters of given race 1,893 3,513 83,003
Preference
Primary* # of inter-county movers of 5 14 71
given race
% of voters of given race who 0.26% 0.40% 0.09%
were inter-county movers
2008 Primary # of voters of given race 9,662 3,881 66,976
# of inter-county movers of 21 9 62
given race
% of voters of given race who 0.22% 0.23% 0.09%
were inter-county movers
2008 General # of voters of given race 70,544 53,571 378,182
# of inter-county movers of 432 325 1,317
given race
% of voters of given race who 0.61% 0.61% 0.35%
were inter-county movers
2010 Primary # of voters of given race 11,784 5,689 114,727
# of inter-county movers of 13 12 108
given race
% of voters of given race who 0.11% 0.21% 0.09%
were inter-county movers
2010 General # of voters of given race 38,738 25,233 278,277
# of inter-county movers of 117 98 379
given race
% of voters of given race who 0.30% 0.39% 0.14%
were inter-county movers
* Data from Hillsborough County is not available for this particular election (the 2008
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Presidential preference primary)
86. This table was generated by performing the following calculations with Dr.
Stewart’s data. First, we determined the total number of voters of a given race who voted
in each election from 2008 to 2010 (“# of voters of given race”) by multiplying the
percentage of non-moving voters of a given race who voted in each election (i.e., the last
column in Dr. Stewart’s table) by the total number of non-moving voters in that election;
then multiplying the percentage of inter-county movers of the same race by the total
number of inter-county movers; and then adding together the two resulting numbers.
Next, we determined the total number of inter-county movers in each racial group (“# of
inter-county movers of given race”) by multiplying the percentage of inter-county movers
of that race by the total number of inter-county movers. Finally, we generated the
percentage of voters of each given race who were inter-county movers in that particular
election (“% of voters of given race who were inter-county movers”) by dividing the first
figure by the second.
87. We combined this data further in order to produce an aggregate percentage of
voters of each race who were inter-county movers in the covered counties from 2008 to
2010. First, we added together the numbers of voters in a given race in each of the five
elections in the previous table. Then, we added the number of inter-county movers of
each race in each of these elections. Last, we divided the first number by the second to
generate the percentage of inter-county movers of that race. That data is displayed in the
table below:
Grand Totals Black Hispanic White
# of voters 132,622 91,890 921,165
# of inter-county movers 588 458 1,937
% of voters who were inter- 0.44% 0.50% 0.21%
county movers
88. Based on this table, we find that, on average, minority voters in Florida’s
covered counties are approximately twice as likely as white voters in those same counties
to move inter-county and seek to update their addresses at the polls. Specifically, from
2008 through 2010, 0.44% of African-American voters and 0.50% of Hispanic voters in
the covered counties were inter-county movers, compared to only 0.21% of white voters.
89. The more limited data examined by Florida’s own expert witness, Professor
M.V. (Trey) Hood III, confirms the conclusion that, as a percentage of their overall
demographic population, African-American and Hispanic voters are more likely than
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white voters to seek to change their addresses at the polls. Professor Hood’s data set is
less complete than Dr. Stewart’s, because he examined data from only three of Florida’s
five covered counties -- excluding Hillsborough County, the most populous of the five --
and two of those counties (Hardee County and Hendry County) claimed not to even have
any inter-county movers in the election years that he analyzed. See A9073 (Expert Report
of Prof. Hood); see also A5954 (Hood Dep.) (admitting that his data is only “[a] quarter
complete”). Nonetheless, Professor Hood’s conclusions do not differ from those of Dr.
Stewart.
90. The following chart reproduces Table 4.4 in Professor Hood’s expert report,
which displays “Out-of-County Change-of-Address Affirmations by Race/Ethnicity as a
Percentage of Total In-Person Turnout by Racial/Ethnic Group,” A9073 (Expert Report
of Prof. Hood):
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Election/County White Black Hispanic Other
Hardee County
2010 Primary 0% 0% 0% 0%
2010 General 0% 0% 0% 0%
Hendry County
2008 General 0% 0% 0% 0%
2010 General 0% 0% 0% 0%
Collier County
2006 Primary 0.019% 0% 0% 0%
2006 General 0.052% 0.260% 0.161% 0.204%
2008 Presidential 0.049% 0.600% 0.088% 0.155%
Primary
2008 Primary 0.023% 0% 0.100% 0.238%
2008 General 0.125% 0.394% 0.326% 0.192%
2010 General 0.103% 0.374% 0.290% 0.288%
91. As the table above shows, and as Professor Hood acknowledges, in each of the
elections that Professor Hood examined, the inter-county mover rate of “some minority
group [whether African-American or Hispanic] is higher than the white rate[,] and in
most of [the elections] all of the minority rates are higher than the white rate.” A5958-59
(Hood Dep.) (emphasis added).
92. Notwithstanding that racial minorities in the covered counties will be
disproportionately affected by changes to Florida’s inter-county mover laws, the total
number of inter-county movers has been quite small historically, and the number who are
minorities has been even smaller. The high-water mark for inter-county movers was the
2008 general election, when 2,240 voters (approximately 750 of whom were minorities)
updated their addresses at the polls in the covered counties. See A8908 (Supplemental
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Decl. of Dr. Stewart). This is out of a total of over 530,400 voters who voted in that
election in the covered counties. See id.10
2. Burdens Imposed by Inter-County Mover Changes (at 48 Hours)
93. We find that, despite their disproportionate effect on minority voters, the
burdens imposed by the inter-county mover changes are not likely to dissuade reasonable
minority voters in Florida’s five covered counties from casting a ballot, or to result in
those minority voters’ ballots not being properly tabulated.
94. Under the prior law, a voter who moved to another county without notifying
the relevant election official and then sought to vote in his or her new county of residence
was required to complete a change of address affirmation in “substantially the [same]
form” set forth in Fla. Stat. § 101.045(2)(a) (2010), which was as follows:
Under penalties for false swearing, I, (Name of voter), swear (or affirm)
that the former address of my legal residence was (Address of legal
residence) in the municipality of __ , in __ County, Florida, and I was
registered to vote in the __ precinct of __ County, Florida; that I have not
voted in the precinct of my former registration in this election; that I now
reside at (Address of legal residence) in the Municipality of __ , in __
County, Florida, and am therefore eligible to vote in the __ precinct of __
County, Florida; and I further swear (or affirm) that I am otherwise legally
registered and entitled to vote.
_____(Signature of voter whose address of legal residence has changed).
Fla. Stat. § 101.045(2)(a); see, e.g., [129] Fla. Notice of Filing of Documents Re: Inter-
County Address Changes at the Polls, Ex. A (Collier County change of address
affirmation form).11 After completing the form, the voter was then entitled to cast a
regular ballot.
10
The available numbers for other elections in the covered counties are: 613 total
inter-county movers in the 2010 general election; 137 in the 2010 primary; 96 in the 2008
primary; and 94 in the 2008 presidential primary (excluding Hillsborough County, for
which the numbers are not available for that election). A8908-09.
11
Although change of address affirmations were not uniform throughout Florida,
all counties were required to substantially comply with the above example. See Fla. Stat.
§ 101.045(2)(a) (2010).
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95. Under the new law, inter-county movers must instead complete a “Provisional
Ballot Voter’s Certificate and Affirmation,” as set forth in Fla. Stat. § 101.048(3) (2011).
The new form must be “in substantially the [same] form” as the following:
I do solemnly swear (or affirm) that my name is __ ; that my date of birth is
__ ; that I am registered and qualified to vote in __ County, Florida; that I
am registered in the __ Party; that I am a qualified voter of the county; and
that I have not voted in this election. I understand that if I commit any
fraud in connection with voting, vote a fraudulent ballot, or vote more than
once in an election, I can be convicted of a felony of the third degree and
fined up to $5,000 and/or imprisoned for up to 5 years.
(Signature of Voter)
(Current Residence Address)
(Current Mailing Address)
(City, State, Zip Code)
(Driver’s License Number or Last Four Digits of
Social Security Number)
Fla. Stat. § 101.048(3) (2011); see, e.g., [129] Fla. Notice of Filing of Documents Re:
Inter-County Address Changes at the Polls, Ex. D (Collier County Provisional Ballot
Certificate and Affirmation).12 After completing the affirmation, the inter-county mover
is then entitled to cast a provisional ballot. Fla. Stat. § 101.048(1)-(2) (2011).
96. The form required under the new law requests essentially the same
information as the prior form, including the voter’s name, current and prior address of
residence, and an affirmation that the voter is legally registered and qualified to vote. See
A4068 (Dep. of Maria Matthews, Assistant Gen. Counsel, Fla. Dep’t of State) (“[R]eally
[inter-county movers are] not filling out . . . anymore information or any additional
documentation than they would have if they had moved in from another county
previously.”). Under both the old law and the new one, Florida voters were required to
disclose either their Florida driver’s license number or the last four digits of their social
security number when they registered to vote. See [129] Florida’s Notice of Filing of
12
Like change of address affirmations, provisional ballot certificates and
affirmations are also not identical in each of Florida’s counties, but they must all be “in
substantially the [same] form” as the above example. Fla. Stat. § 101.048(3) (2011).
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Documents Related to Inter-County Address Changes at the Polls, Ex. B (attaching a copy
of the Florida Voter Registration Application, which was unchanged in HB 1355).13
97. A provisional ballot is in all physical respects identical to a regular ballot. Fla.
Stat. § 97.021(29) (defining “provisional ballot” to simply mean “a conditional ballot”);
Fla. Admin. R. 1S-2.037(2)-(3) (providing guidelines for provisional ballot certificates
and affirmations); see Oral Arg. Tr. 237:19 - 238:24 (representation by counsel for
Florida that provisional ballots look the same as regular ballots, and that “[a]ll Florida
voters vote by paper ballot”). The only difference -- from a procedural point of view -- is
that instead of being fed into a machine for tabulation, a provisional ballot is placed into a
secrecy envelope, which is then sealed in a provisional ballot envelope. Fla. Stat.
§ 101.048(1)-(2) (2011). The ballot is then deposited in a ballot box, and the secrecy
envelope remains sealed until the county canvassing board reviews the certificate and
affirmation to determine whether the ballot may be tabulated. See id.
98. The new provisional voter’s certificate and affirmation will not take
substantially longer to complete than the old affirmation of change of address. See
A3938 (Ussery Dep.) (“It’s the same ballot they would have received. . . . I don’t really
see where it would be an obstacle [to voting].”); A3261-62 (Sawyer Dep.); A3452-53
(Edwards Dep.); A3830 (Lennard Dep.). The total paperwork might take a few additional
minutes because the voter may have to include some of the same information on the
provisional ballot envelope. See Oral Arg. Tr. 237:11 - 237:16. The voter might also
have to wait while an election official reviews and signs his or her affirmation and/or
provisional envelope. See Fla. Stat. § 101.048(3) (2011). Some of the covered counties
have sought to minimize these burdens by affixing the Provisional Ballot Voter’s
Certificate and Affirmation to the outside of the provisional envelope, or printing the
certificate and affirmation directly onto the provisional envelope itself. See, e.g., A7395
(Hillsborough County Provisional Ballot Quick Reference Guide).
99. There will be little difference in the time required to cast an inter-county
mover ballot under the new versus the prior law. Some elements of the process may be
slightly more time-consuming. Provisional voters may be required to move into a
different line, where they will be required to interact with a particular election worker
with the authority to process provisional ballots, see, e.g., A10583-84 (Sancho Dep.);
A9183 (Sancho Decl.). Voters faced with the requirement of casting a provisional ballot
may also have questions for election officials, cf. A9105 (Joyner Decl.), who will in turn
be required to communicate certain information to provisional voters, see Flat. Stat.
13
Neither the United States nor the intervenors have raised an issue in this litigation
concerning the fact that the new form also requests a driver’s license number or social
security number, and we therefore do not address that point.
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§ 101.048(5). However, some aspects of the new inter-county mover process may move
more quickly than the old procedures. Election officials will no longer be required to
verify that inter-county movers were validly registered Florida voters before permitting
them to cast a regular ballot, see Fla. Stat. § 101.045(d) (2010), but will instead determine
the inter-county movers’ eligibility when reviewing their provisional ballots after Election
Day, see Fla. Stat. § 101.048(2)(a) (2011).
100. We find that reasonable inter-county movers are unlikely to be so deterred by
the experience of casting a provisional ballot that they will decide not to vote at all.
Election officials in the covered counties have testified that they will explain to inter-
county movers that their ballots “shall be counted” as long as the voter is eligible. Fla.
Stat. § 101.048(2)(a) (2011). They have also testified that “if the voter is there to vote
and they still have the opportunity to vote, most likely they are going to take advantage of
it,” A3972 (Ussery Dep.). These officials have never seen a voter leave a precinct
without voting simply because he or she was required to vote a provisional ballot. A3972
(Ussery Dep.); A3778-79 (Lennard Dep.); but see A10583-84 (Sancho Dep.). The one
contrary anecdote in the record involved a substantially different situation, in which a
voter was told that there was “something wrong” and that he had to “come back in 48
hours and . . . clear it up.” A9794-95 (Joyner Dep.). We therefore accord that anecdote
little weight.
101. The inter-county mover changes will not materially increase lines at polling
places. The new procedures for inter-county movers will not take much more time than
prior procedures. See ¶¶ 98-99 , supra. Moreover, there are so few inter-county movers
in the covered counties that it is unlikely that any individual precinct would be affected to
any material degree. See A8908-09 (Supplemental Decl. of Dr. Stewart). Only 1,000 of
approximately 2,240 movers in the 2008 general election updated their addresses on
election day; the rest were spread over the early voting period. A8907-08. This total
averages out to only a handful of inter-county movers at each precinct. See Oral Arg. Tr.
34:22 - 35:02. Even these numbers may overestimate the number of inter-county movers
in future elections, as the data set on which they are based may include voters whose
addresses were changed before or after election day, see A8895-96 (Supplemental Decl.
of Dr. Stewart); A9035, military personnel and members of their families exempt from
the new inter-county mover procedures, see Fla. Stat. § 101.045(2)(b) (2011), and voters
who will no longer seek their addresses at the polls under the new law, given that it makes
it considerably easier for voters to update their addresses before going to the polls to vote,
see Fla. Stat. § 97.1031(1)(b) (2011) (allowing registered voters to update their addresses
electronically or by telephone).
102. While provisional ballots may have been counted at lower rates than regular
ballots in the past, see A7381 (“New Election Law Talking Points” for Hillsborough
County); A3393-94 (Edwards Dep.), none of these ballots involved inter-county movers,
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and the United States has proffered no evidence that invalidation was due to human error
or malevolence. The record evidence suggests that, most often, such ballots were not
counted “simply because the person [was] not eligible to vote,” A5048 (Stafford Dep.);
see also A8156 (Decl. of Gisela Salas, Fla. Director of Elections), a circumstance that
would not apply to inter-county movers. Inter-county mover ballots “shall be counted” if
the voter is eligible. Fla. Stat. § 101.048(2)(a) (2011); id. § 101.048(2)(b)(1). Florida has
instructed its supervisors of elections accordingly. See A2764-65 (Fla. Dep’t of State,
Directive 2011-01 (May 19, 2011)); A7232-33 (Fla. Dep’t of State, Directive 2012-01 --
Provisional Ballot Verification (Jan. 13, 2012)).
103. During legislative debates, the Florida Association of Supervisors of
Elections (“FSASE”) expressed concerns that “there’s simply not enough time to
canvass” the additional provisional ballots that will be cast under the new inter-county
mover procedures. A967-69 (Senate Rules Comm. (Apr. 15, 2011) (Statement of David
Stafford, FSASE President)); see also A9180-81 (Sancho Dep.). But supervisors of
elections in the covered counties have testified that they will “train and put on additional
personnel to ensure that [the new provisional ballot procedures] will work.” A3781-82
(Lennard Dep.); see also A5044-45 (Stafford Dep). As noted above, the numbers of
inter-county movers in the covered counties are so small as to make it unlikely that their
provisional ballots will overwhelm the county canvassing boards.
104. Election officials in Florida must count the provisional ballots of inter-county
movers even if the officials run out of time to examine them in detail. See A7100-01
(Fla. Rule 30(b)(6) Dep.); A4467-68 (Dep. of Gary Holland, Assistant Gen. Counsel, Fla.
Dep’t of State). The accompanying opinion is based on the understanding that Florida
will follow its laws as written, see Fla. State. § 101.048(2) (2011), and will abide by the
representations it has made to this court to that effect, see Fla. Br. 19; Oral Arg. Tr. 33:05
- 34:20. Most of the elections supervisors in the covered counties appear to already
understand the requirements of the new law, see A3207-08 (Lennard Dep.); A3265, 3269-
71 (Sawyer Dep.).
105. Finally, in some respects the new inter-county mover changes will make it
considerably easier for inter-county movers to vote. Voters will be able to update their
addresses “via telephone or electronic means,” or by submitting any “signed, written
notice,” see Fla. Stat. § 97.1031(1)(b) (2011), rather than only via “a voter registration
application signed by the elector,” Fla Stat. § 97.1031(2) (2010). As a result, there may
be fewer voters who wait until they arrive at the polling place to change their addresses.
106. For the foregoing reasons, we find that the inter-county mover changes will
not materially burden minority voters in Florida’s five covered counties in their effective
exercise of the franchise.
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III. Purpose of the 2011 Inter-County Mover Amendments 14
107. The legislative proponents of these changes stated that they were necessary
to prevent a possible form of “double voting” voter fraud, whereby voters might
fraudulently or negligently cast ballots in more than one county (e.g., their old and new
counties of residence). See, e.g., A463 (House State Affairs Comm. (Apr. 1, 2011));
A1155-56 (House Sess. HB 1355 1st Reading & Debate (Apr. 20, 2011)); A1351-52,
1403-06, 1417-18 (House Sess. HB 1355 2d Reading & Debate (Apr. 21, 2011)). The
sponsors of those amendments also expressed a desire to promote the efficiency and
integrity of the electoral process by encouraging voters to update their addresses before
going to the polls, so that the voter rolls could be finalized before Election Day. See
A713-16, 722 (House State Affairs Comm. (Apr. 14, 2011)); A948 (Senate Rules Comm.
(Apr. 15, 2011)); A1196-97, 1204 (House Sess. HB 1355 1st Reading & Debate (Apr. 20,
2011)); see also A386-87, 454-55, 463 (House State Affairs Comm. (Apr. 1, 2011));
A688, 722-24 (House State Affairs Comm. (Apr. 14, 2011)); A947-48, 956-57, 984-85
(Senate Rules Comm. (Apr. 15, 2011)); A1149-51, 1167-68, 1196-97 (House Sess. HB
1355 1st Reading & Debate (Apr. 20, 2011)); A1351-52, 1403-06 (House Sess. HB 1355
2d Reading & Debate (Apr. 21, 2011)); A1586-87, A1595-1602, 1612-13 (Senate Budget
Comm. (Apr. 26, 2011)); A1822-24, 1870 (Senate Sess. -- SB 2086/HB 1355 2d Reading
& Debate (May 4, 2011)); A2215, 2255-57 (Senate Floor Debate (May 5, 2011)).
108. The inter-county mover changes will not “bear more heavily” on any
minority group. Although the inter-county mover changes may affect disproportionately
more minority voters than white voters because minorities are more likely to be inter-
county movers, the evidence indicates that the changes will not have materially adverse
effects on the ability of minority voters to cast a ballot and effectively exercise the
electoral franchise.
109. We must also consider whether there are contemporaneous statements that
indicate a discriminatory purpose. On this point, the defendants point to a floor statement
by State Senator Mike Bennett, who said that 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.” A2242 (Senate
Floor Debate (May 5, 2011)). The relevant text of Senator Bennett’s statement is as
follows:
14
Because the accompanying opinion only reaches conclusions concerning the
purpose of the inter-county mover amendments, we only making findings relevant to the
purpose of those changes, cross-applying our more general findings respecting HB 1355
where relevant.
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You say [voting’s] inconvenient. Ever read the stories about the people in
Africa, the people of the desert who literally walk two and 300 miles so
they can have an opportunity to do what we do? And we want to make it
convenient?
How much more convenient do you want us to make it? We 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?
The guy who died to give you that right, it was not convenient. Why would
we make it any easier? I want them to fight for it. I want them to know
what it’s like. I want them to go down there and have to walk across town
to go over and vote. I want them to at least know the date they’re supposed
to vote. I’d like to have them actually know where they’re supposed to go
vote. Is that too much to ask? I don’t think so. . . .
We do make it convenient for people to vote, but I got to tell you I wouldn’t
even 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’s willing to walk 200 miles for that opportunity
he’s never had before in his life.
A2242 (Senate Floor Debate (May 5, 2011) (Statement of Sen. Bennett)).
110. Whether or not Senator Bennett actually intended his statement to have racial
undertones, it certainly can be read that way. Nonetheless, Senator Bennett’s is the only
statement to which the defendants point as evidencing a discriminatory purpose on the
part of the Florida legislature. Senator Bennett was neither a sponsor nor a primary
proponent of HB 1355, and did not play an important role in passage of the bill. Indeed,
the floor statement was Senator Bennett’s only public statement regarding the 2011
voting amendments. And although Senator Bennett was the Senate President Pro
Tempore at the time, that office has limited authority, and there is no evidence it played
any role in passage of the amendments. Under the rules of the Florida Senate, “the
President Pro Tempore shall assume the duties of the chair” “[i]f for any reason the
President is absent and fails to name a Senator” to carry out those duties. Rules and
Manual of the Senate of the State of Florida, Rule 1.7(2) (adopted Nov. 16, 2010). And
“[i]n the event of extended absence of the President or the President’s disability or
incapacity, the President Pro Tempore shall assume the duty of referring bills.” Id., Rule
4.6(2).
111. Florida has conceded that “[a]t the time of the Florida Legislature’s
consideration of HB 1355, the State of Florida knew of no instance” of such “double
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voting” by inter-county movers. A8281 (Fla. Resp. to Req. for Admiss. No. 12). Nor has
it identified any instances since then. See Oral Arg. Tr. 24:17 - 25:2, 27:3 - 27:20.
Likewise, election officials have confirmed that they have never seen double voting by
inter-county movers at their precincts. See, e,g., A3648-39, 3771-72 (Dep. of Earl
Lennard, Hillsborough County SOE); A3106-07, 3132, 3198-3200 (Dep. of Harry
Sawyer, Monroe County SOE); A3937 (Dep. of Jeffery Ussery, Hardee County SOE).
112. The inter-county mover changes also make ameliorative adjustments that
will make it easier for inter-county movers to vote. Unlike the benchmark law, the new
law allows voters to update their addresses before Election Day by simply “[c]ontacting
the supervisor of elections via telephone or electronic means.” Fla. Stat. § 97.1031(1)(b)
(2011).
113. The bills that ultimately became HB 1355 were amended several times
during the legislative process, often by means of “strike-all” amendments. See A120
(Revised Jointly Stip. Facts ¶ 27); A683-90; A942-50 (Senate Rules Comm. (Apr. 15,
2011)); A1586-92 (Senate Budget Comm. (Apr. 26, 2011)). But several witnesses who
are familiar with the standard procedures in the Florida legislature testified that such
strike-all amendments are not necessarily unusual in Florida. See A4759, 4776, 4952-54
(Dep. of Pierce Schuessler, Legislative Affairs Director, Fla. Dep’t of State); A6766-67;
A9828-33 (Dep. of Sen. Arthenia Joyner). In addition, the record of the debates on HB
1355 reveals that the legislative process unfolded over a period of several months, and
involved substantial testimony from a number of Florida election officials and members
of the general public. See, e.g., A417-45 (House State Affairs Comm. (Apr. 1, 2011));
A740-71 (House State Affairs Comm. (Apr. 14, 2011)); A964-99 (Senate Rules Comm.
(Apr. 15, 2011)).
114. The record contains several examples of Florida voting laws passed in recent
years that were enacted to take immediate effect. See A10699-970 (collecting examples);
see also A3869 (Lennard Dep.); A4918 (Schuessler Dep.).
38