Download U.S. Sen. Bill Nelson's Motion for Leave to File Amicus Curiae Brief

Case 1:11-cv-01428-CKK-MG-ESH Document 101
Filed 05/30/12 Page 1 of 2
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
STATE OF FLORIDA,
Plaintiff,
v.
UNITED STATES OF AMERICA and
ERIC H. HOLDER, JR., in his official capacity Civil Action No: 11-01428-CKK-MG-ESH
as Attorney General,
Defendants,
KENNETH SULLIVAN, et al.,
Defendant-Intervenors,
MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF
United States Senator Bill Nelson, through counsel, hereby moves for leave to file a brief
as amicus curiae in the above-captioned case. A copy of the brief accompanies this motion. As
grounds for this motion, Senator Nelson states as follows:
1.
Senator Nelson is a United States Senator of the One Hundred Twelfth Congress,
representing the State of Florida.
2.
Senator Nelson has actively participated in the Senate investigation of the changes
to the Florida Election Code that are currently before the Court for review pursuant to Section 5
of the Voting Rights Act. At Senator Nelson’s request, the Senate Judiciary Committee’s
Subcommittee on the Constitution, Civil Rights, and Human Rights convened an investigative
field hearing on these provisions on January 27, 2012, in which Senator Nelson participated.
34644‐0001/LEGAL23098098.1 1 Case 1:11-cv-01428-CKK-MG-ESH Document 101
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3.
The attached brief includes information and analysis presented at that hearing.
4.
Senator Nelson respectfully submits that the information and perspective in the
attached brief may assist the Court in deciding the matter sub judice.
5.
Senator Nelson's counsel have contacted counsel for the State of Florida and been
advised the State opposes this motion.
WHEREFORE, Senator Nelson requests that the Court grant him leave to file the
accompanying brief as amicus curiae.
DATED: May 30, 2012
Respectfully submitted,
___/s/Barry J. Reingold__________________
Barry J. Reingold
D.C. Bar No. 942086
Karl J. Sandstrom
D.C. Bar No. 346338
PERKINS COIE LLP
700 Thirteenth Street N.W., Suite 600
Washington, D.C. 20005-3960
Telephone: (202) 654-6200
Facsimile: (202) 654-6211
Counsel for Amicus Curiae
Kendall Coffey (pro hac vice pending)
Florida Bar No. 59861
Abigail Parent (pro hac vice pending)
Florida Bar No. 72284
COFFEY BURLINGTON, P.L.
2699 South Bayshore Drive, Penthouse
Miami, Florida 33133
Tel: 305-858-2900
Fax: 305-858-5261
Counsel for Amicus Curiae
34644‐0001/LEGAL23098098.1 2 Case 1:11-cv-01428-CKK-MG-ESH Document 101-1
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
STATE OF FLORIDA,
Plaintiff,
v.
UNITED STATES OF AMERICA and
ERIC H. HOLDER, JR., in his official capacity Civil Action No: 11-01428-CKK-MG-ESH
as Attorney General,
Defendants,
KENNETH SULLIVAN, et al.,
Defendant-Intervenors.
BRIEF OF SENATOR BILL NELSON AS AMICUS CURIAE IN SUPPORT OF
DEFENDANTS AND DEFENDANT-INTERVENORS
INTEREST OF AMICUS CURIAE
Comes now, Senator Bill Nelson, a United States Senator of the One Hundred Twelfth
Congress, as Amicus Curiae (hereinafter referred to as “Amicus”). Senator Nelson is the senior
United States Senator for the State of Florida, having been first elected to that office in 2000.
This election followed a distinguished public service career in which Senator Nelson has held
elective office as a member of the Florida Cabinet, a United States Representative, and a member
of the Florida House of Representatives. As a United States Senator, Amicus has a special
interest in the issues at stake in this litigation.
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As with each public office in which he has had the privilege of serving, when Amicus was
elected to the United States Senate, he took an Oath to uphold the Constitution and the laws of
the United States. By virtue of that Oath, Amicus has a paramount interest in ensuring that the
laws of every state, but especially the laws of his home state of Florida, do not conflict with the
supreme law of the land.
Moreover, Amicus’s active engagement with the issues now before the Court places him
in a uniquely knowledgeable position regarding these matters. As detailed below, his written
request prompted Senator Richard Durbin to convene an investigative field hearing of the Senate
Judiciary Committee’s Subcommittee on the Constitution, Civil Rights, and Human Rights in
January 2012 in Tampa, Florida. The hearing, in which Amicus participated, conducted a
penetrating examination of the new provisions of Florida’s voting laws, for which the State now
seeks preclearance. Compelling evidence was presented during the hearing about the serious
harm to the voting process that such provisions would likely cause, especially with respect to
minority voting. Amicus, thus, is poised to provide information and insight valuable to the
Court’s analysis.1
INTRODUCTION
Amicus urges this Court to deny preclearance of the amendments to the Florida Election
Code before it for review pursuant to Section 5 of the Voting Rights Act of 1965, as amended, 42
U.S.C. 1973(c) (hereinafter referred to as “VRA”). These provisions, contained in Florida
Committee Substitute for Committee Substitute for House Bill 1355 (hereinafter “HB 1355”) and
signed into law by Governor Rick Scott on May 19, 2011, impose severe burdens and penalties
that strike at the core of our democracy. Because these proposed changes, enacted by the Florida
1
Amicus Curiae certifies that no counsel for a party authored this brief in whole or in part and that no person or
entity, other than Amicus Curiae and his counsel made a monetary contribution to the preparation or submission of
this brief. 34644‐0001/LEGAL23769444.1 2 Case 1:11-cv-01428-CKK-MG-ESH Document 101-1
Filed 05/30/12 Page 3 of 13
Legislature and signed into law by the Governor, have the purpose or effect of denying or
abridging the right to vote on account of race, color, or membership in a language minority, as
interpreted by the Supreme Court in South Carolina v. Katzenbach, 383 U.S. 301 (1966), Amicus
asserts that preclearance should be denied.
First, HB 1355 imposes onerous new requirements on third party voter registration
organizations without any accompanying justification for the same. These amendments include
burdensome registration requirements for volunteers and require that third party voter
registration organizations submit completed voter registration applications within forty-eight
hours of their receipt. The violation of these provisions may result in the imposition of harsh
fines and possibly even felony criminal liability. The result of these amendments has been
profoundly harmful to our traditions that champion access to voting for all citizens. For fear of
unintentionally running afoul of these provisions, venerable, non-partisan civic organizations
across the state have altogether ceased their voter registration efforts in Florida.
Second, HB 1355 also eliminates critical days of early voting. Under the previous law,
early voting began on the fifteenth day before an election and ended on the second day before the
election. HB 1355 reduces the total number of days available for early voting from fourteen
days to eight days, by allowing early voting to begin on the tenth day before an election and
ending on the third day before the election. Pursuant to the decision of the local supervisor of
elections, the total number of early voting hours can range from 48 hours to 96 hours.2 This
affects seniors and the disabled who cannot stand for long periods of time in voting lines on
Election Day. It also hurts working families who benefit from being able to vote when their
schedules permit. HB 1355 also eliminates early voting on the Sunday before Election Day, a
2
HB 1355 provides that early voting “shall be provided for no less than 6 hours and no more than 12 hours per day
at each site during the applicable period. 34644‐0001/LEGAL23769444.1 3 Case 1:11-cv-01428-CKK-MG-ESH Document 101-1
Filed 05/30/12 Page 4 of 13
day when, as data shows, both African American and Hispanic voters are more likely to vote.
HB 1355 thus affects early voting in two serious and substantial ways: first, it reduces the total
number of days of early voting; second, it eliminates early voting on the Sunday before Election
Day.
Third, HB 1355 precludes a citizen who has moved from one county to another county
within Florida from casting a regular ballot if he does not update his address prior to the day he
votes. Instead, HB 1355 requires such a voter to cast what is known as a provisional ballot,
which may ultimately not be counted.3 This provision affects the ability of some Florida citizens
to cast their votes freely and have their votes counted, in particular college students, renters, and
low-income citizens who move more frequently.
Through these provisions, HB 1355 eliminates—and indeed penalizes—opportunities for
civic engagement and voter participation. Such restrictions come at the expense of all Florida
citizens and the health of our democracy, for it is we the people who give adherence to the right
to govern us by selecting those who govern. When the right to vote is impeded, government
itself is threatened. Critically, for purposes of the issues before this Court, HB 1355 has the
purpose and effect of denying or abridging Floridians’ right to vote on account of race, color, or
membership in a language minority, and thus, should be denied preclearance under Section 5 of
the VRA. Katzenbach, 383 U.S. 301.
ARGUMENT
I. The Sanctity of the Vote
Voting is of the most fundamental significance under our constitutional structure.
Burdick v Takushi, 504 U.S. 428, 433 (1992); Ill. State Bd. of Elections v. Socialist Workers
Party, 440 v. U.S. 173, 184 (1979). And because the right to vote is preservative of every other
3
HB 1355 excepts from this provision any “active uniformed services voter or a member of his or her family.” 34644‐0001/LEGAL23769444.1 4 Case 1:11-cv-01428-CKK-MG-ESH Document 101-1
Filed 05/30/12 Page 5 of 13
basic civil and political right, all threats to that right must be “meticulously scrutinized.”
Reynolds v. Sims, 377 U.S. 533, 561-62 (1964). Moreover, the Supreme Court has held that
restrictions on access to the ballot burden two distinct and fundamental rights, “the right of
individuals to associate for the advancement of political beliefs, and the right of qualified voters,
regardless of their political persuasion, to cast their votes effectively.” Ill. State Bd. of Elections,
440 U.S. at 184 (citing Williams v. Rhodes, 393 U.S. 23, 30 (1968)).
II. A History of Voter Suppression
Since its founding, the United States of America has been a beacon of democracy and a
source of inspiration for those struggling for freedom. For more than one hundred years of its
existence, however, more than half the adult population was denied the most fundamental right
in a democratic form of government—the right to vote. While the Fifteenth Amendment to the
U.S. Constitution, ratified in 1870, guaranteed African American men the right to vote, this
promise remained an empty one for decades after its ratification.4 See Rice v. Cayetano, 528
U.S. 495, 512-13 (2000) (though the purpose of the Fifteenth Amendment was clear, “the reality
remained far from the promise”).
Following the period of Reconstruction, violence and intimidation were widely employed
against African Americans attempting to exercise the newly won franchise. Nw. Austin Mun.
Util. Dist. No. One v. Holder, 557 U.S. 193, 129 S. Ct. 2504, 2522 (2004). In time, violence
gave way to Jim Crow laws, including poll taxes, literacy tests, and other invidious devices,
which effectively disenfranchised African American citizens in many parts of the country well
into the mid-twentieth century.
See Katzenbach, 383 U.S. at 310 (citing literacy tests,
grandfather clauses, property qualifications, “good character” tests, and the discriminatory
4
All women, including African American women, were denied the right to vote even longer, until the ratification of
the Nineteenth Amendment in 1919. 34644‐0001/LEGAL23769444.1 5 Case 1:11-cv-01428-CKK-MG-ESH Document 101-1
Filed 05/30/12 Page 6 of 13
application of voting tests as pervasive schemes employed to prevent African Americans from
voting until as recently as 1964).
III. The Voting Rights Act and Its Applicability to Florida
Efforts at curbing such discrimination were halting and hard won.
Challenges to
individual state laws were expensive and often ineffectual. See Katzenbach, 383 U.S. at 314.
The VRA aimed to end these abuses through a comprehensive scheme of related remedies.
Section 2 of the Fifteenth Amendment to the U.S. Constitution grants Congress the power
to enforce the Amendment through “proper legislation.” U.S. Const. amend. XV. Pursuant to
this authority, Congress passed the VRA in 1965. “The Voting Rights Act was designed by
Congress to banish the blight of racial discrimination in voting, which has infected the electoral
process in parts of our country for nearly a century.” Katzenbach, 383 U.S. at 308. The VRA
employs a variety of tools and procedures to further this goal; among those tools is the
“preclearance” provision of Section 5.
Section 5 of the VRA prescribes the suspension of all new voting regulations in covered
jurisdictions, pending review by federal authorities to determine whether their use would
perpetuate voting discrimination. Katzenbach, 383 U.S. at 315-16.
Covered jurisdictions,
determined by a set of requirements detailed in Section 4(b) of the VRA, include those “areas
where voting discrimination has been most flagrant.” Id. at 315. Since November 1, 1972, five
counties in Florida—Collier, Hardee, Hendry, Hillsborough, and Monroe—have been required to
obtain preclearance under Section 5 of the VRA prior to implementing any new law changes, due
to a history of language discrimination.5
5
Collier and Hendry Counties, 41 Fed. Reg. 34329, (August 13, 1976); Hillsborough, Hardee and Monroe Counties,
40 Fed. Reg. 43746 (September 23, 1975). 34644‐0001/LEGAL23769444.1 6 Case 1:11-cv-01428-CKK-MG-ESH Document 101-1
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Great strides have been made under the auspices of the VRA. Unfortunately, measures
that threaten to reduce or restrict the participation of some would-be voters have not disappeared
entirely. For example, after the 2000 Presidential Election, the United States Commission on
Civil Rights issued a report entitled: “Voting Irregularities during the 2000 Presidential
Elections,” after investigating allegations that Florida voters were prevented from casting ballots
or that their ballots were not counted in the November 2000 Presidential election.6
The
challenges that Florida faced during the 2000 Presidential Election led the state of Florida to
implement various election reforms, including early in-person voting, which were intended to
make it easier for citizens to vote.7 Against this backdrop, it is incumbent upon our citizenry and
elected officials to remain vigilant against threats to this most fundamental of our democratic
institutions. The preclearance provisions of Section 5 of the VRA provide an orderly and
essential mechanism for such continued vigilance.
IV. Impacts of HB 1355
A. Amicus’s Request for Hearing
On October 27, 2011, concerned by troubling developments in voting laws across the
country, including HB 1355, Amicus sent a letter to his colleague, the Honorable Richard Durbin,
a member of the United States Senate Committee on the Judiciary, and the Chairman of the
Judiciary Committee’s Subcommittee on the Constitution, Civil Rights, and Human Rights.
Amicus noted that, according to nonpartisan experts, changes to voting laws passed by the
legislatures of more than a dozen states, such as HB 1355, restrict access to the polls for seniors,
6
The United States Commission on Civil Rights, Voting Irregularities during the 2000 Presidential Elections, June
2001, http://www.usccr.gov/pubs/vote2000/report/main.htm. 7
Revitalizing Democracy in Florida, The Governor’s Select Task Force on Standardizing Election Technology,
Standards and Procedures, March 1, 2001, http://www.collinscenter.org/resource/resmgr/ElectionReform/Revitalizing_Democracy_in_Fl.pdf. 34644‐0001/LEGAL23769444.1 7 Case 1:11-cv-01428-CKK-MG-ESH Document 101-1
Filed 05/30/12 Page 8 of 13
young people, and members of racial and ethnic minority groups. More troubling still, recently
published reports, including a comprehensive study of the new laws by The Brennan Center for
Justice at New York University School of Law, indicate that these new voting regimes are the
result of partisan maneuvering, aimed at restricting voter participation by young people and
minorities.8 In his letter, Amicus requested that Senator Durbin’s Subcommittee conduct field
hearings in all or some of the fourteen states that passed such legislation.
In a letter dated November 15, 2011, Senator Durbin responded to this request, noting his
own concern regarding these trends in voting laws. Senator Durbin advised that, following a
September 8, 2011 Subcommittee hearing on the disenfranchising impact of these laws, he wrote
to Florida Governor Rick Scott, “asking him to explain the steps his administration would take
“to ensure that the new restrictions on voting [he] signed into law will not disenfranchise
Floridians.’” As of the date of Senator Durbin’s November 15, 2011 letter to Amicus, Governor
Scott had failed to reply. As a result of all these developments, Senator Durbin agreed to hold a
field hearing of the Subcommittee on the Constitution, Civil Rights, and Human Rights in
Florida to explore the impact of Florida’s law and those similar laws passed in other states.
B. Testimony from the Hearing
On January 27, 2012, Senator Durbin convened this investigative field hearing, titled
“New State Voting Laws II: Protecting the Right to Vote in the Sunshine State,” in the
8
“Some read into the fact that these bills exclude student IDs as a partisan motive to exclude certain groups of
voters more likely to Democratic.” (Brennan Center report pg. 14; References: See, e.g., Molly Redden, As 2012
Elections Loom, Partisans on Both Sides Argue the Effect of Voter-ID Laws on Students, Chron. of Higher Educ.,
July 11, 2011, http://chronicle.com/article/As-2012-ElectionsLoom/128189/?key=Sm8hIFA2MXwabCllZWxKYDpUPXY8Nxh1YnBOOHArbltSEg%3D%3D; Peter Wallsten,
In States, Parties Clash over Voting Laws That Would Affect College Students, Others, Wash. Post, Mar. 8, 2011,
http://www.washingtonpost.com/wp-dyn/content/article/2011/03/06/AR2011030602662.html.)
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Hillsborough County Courthouse, in Tampa, Florida. Amicus attended and participated in the
hearing.9
The testimony presented at the Subcommittee’s field hearing raised several areas of
concern pertinent to the issues before this Court. First, a reduction in the days of early voting
available will disparately affect African American voters, who take advantage of early voting in
large numbers. Moreover, HB 1355’s moratorium on early voting on the Sunday preceding
Election Day appears specifically targeted to reduce the voter participation of both African
Americans and Hispanics, as, historically, on that date, these groups turned out for early voting
in especially high numbers. Second, by eliminating the longstanding ability of a Florida citizen
who moves from one county to another to update his address at the polls and cast a regular
ballot, HB 1355 will likely result in fewer votes being counted, as the newly required provisional
ballots are less likely to be counted. Third, burdensome and unwarranted restrictions on the
activities of third party voter registration organizations have caused non-partisan civic groups to
terminate voter registration efforts.
Because African American and Hispanic voters have
historically taken advantage of the opportunity to register with these groups in disproportionate
numbers, the cessation of these drives will disparately affect these voting groups.
Amicus highlights for this Court the testimony of one of the witnesses, Professor Daniel
A. Smith, Ph.D., a tenured professor in the Department of Political Science at the University of
Florida who has published extensively in top academic journals in his field concerning the
effects of election laws on voting behavior in the United States.10 (Smith at 1.) Professor Smith
9
The prepared statements of the witnesses as well as a video of the proceedings are available on the Senate
Judiciary Committee website:
http://www.judiciary.senate.gov/hearings/hearing.cfm?id=f14e6e2889a80b6b53be6d4e411cc3b0. 10
Professor Smith’s prepared testimony is available at http://www.judiciary.senate.gov/pdf/12-127SmithTestimony.pdf. For ease of reference, Amicus hereinafter cites to Professor Smith’s prepared testimony by
name and page number. 34644‐0001/LEGAL23769444.1 9 Case 1:11-cv-01428-CKK-MG-ESH Document 101-1
Filed 05/30/12 Page 10 of 13
provided insightful data and analysis from his research with his colleague, Professor Michael
Herron of Dartmouth College, on the impact of HB 1355 on early voting. Professor Smith found
that in the 2008 general election, more than half of all Florida voters cast their ballots prior to
Election Day, including 2.62 million voters who cast early, in-person ballots. (Smith at 2.)
Importantly, African American voters took advantage of early voting in large numbers; in fact,
more African American voters in Florida cast ballots by early voting in the 2008 general election
than they did on Election Day.11 (Smith at 2.) And while African Americans composed just 13
percent of the total Florida electorate, they cast nearly 22 percent of the early votes in the 2008
general election.12 (Smith at 2.)
Professor Smith also investigated the variation across groups of early voters as to when
they voted early, by disaggregating the data by racial and ethnic groups. Striking results were
revealed. As reflected in the figure below, presented as part of Professor Smith’s testimony, the
numbers of African American and Hispanic voters, as fractions of all early voters per day in the
2008 general election, spiked dramatically on the two Sundays during the early voting period.
According to the testimony of Professor Smith, these data appear to reflect “souls to the polls”
mobilization efforts to bring African American and Hispanic voters directly from their churches
to their polling places on Sundays during early voting periods. (Smith at 2.)
11
Professor Smith’s data show that, while 520,031 African American voters in Florida voted on Election Day,
Tuesday November 4, 2008, 575,724 African American voters voted early in the 2008 general election. (Smith at
2.) 12
Hispanic voters cast early ballots in numbers roughly proportionate to their percentage of the electorate as a
whole. (Smith at 2.) 34644‐0001/LEGAL23769444.1 10 Case 1:11-cv-01428-CKK-MG-ESH Document 101-1
Filed 05/30/12 Page 11 of 13
In addition, Professor Smith’s research showed that during the 2008 general election, less than
half of all provisional ballots cast were actually deemed to be valid. According to the Florida
Department of State, of the roughly 8.3 million ballots cast, 35,635 were provisional ballots.
Local canvassing boards, however, only validated 17,312 of the provisional ballots cast. (Smith
at 18.)
C. Additional Research on the Impacts of HB 1355
Moreover, recent research conducted by Professor Smith demonstrates that voters in the
five Florida counties subject to pre-clearance under the Voting Rights Act, where HB 1355 is not
currently implemented, were more likely to vote early in the Presidential Preference Primary in
January than in the sixty-two counties where the law is being implemented. On March 2, 2012,
Professor Smith published the results of his analysis of voter turnout in Florida’s 2012
Presidential Preference Primary. He noted that early in-person voter turnout rates in the five
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covered counties under the former early voting day structure were significantly higher than in the
sixty-two other counties operating under the provisions of HB 1355.13
CONCLUSION
For the reasons set forth above, HB 1355 will inevitably result in a substantial reduction
of voter registration of minorities as well as a reduced turnout of minority voters in our elections.
This not only conflicts with the constitutionally protected right to vote for which so many have
fought, it violates Section 5 of the VRA. Amicus respectfully requests that the Court deny
preclearance for the provisions of HB 1355 at issue.
DATED: May 30, 2012
Respectfully submitted,
___/s/Barry J. Reingold__________________
Barry J. Reingold
D.C. Bar No. 942086
Karl J. Sandstrom
D.C. Bar No. 346338
PERKINS COIE LLP
700 Thirteenth Street N.W., Suite 600
Washington, D.C. 20005-3960
Telephone: (202) 654-6200
Facsimile: (202) 654-6211
Counsel for Amicus Curiae
13
http://electionsmith.wordpress.com/2012/03/02/percentage-of-early-voters-higher-in-section-5-counties-infloridas-2012-presidential-primary/. 34644‐0001/LEGAL23769444.1 12 Case 1:11-cv-01428-CKK-MG-ESH Document 101-1
Filed 05/30/12 Page 13 of 13
Kendall Coffey (pro hac vice pending)
Florida Bar No. 59861
Abigail Parent (pro hac vice pending)
Florida Bar No. 72284
COFFEY BURLINGTON, P.L.
2699 South Bayshore Drive, Penthouse
Miami, Florida 33133
Tel: 305-858-2900
Fax: 305-858-5261
Counsel for Amicus Curiae
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