This article is reprinted with permission from the Daily Business Review.
Voting is a fundamental right and groups that seek to promote the exercise of that right deserve their day in court. The judge gave them their day in court and correctly put a stop to the technicalities.
U.S. District Judge Robert L. Hinkle got it right when he granted a preliminary injunction prohibiting Florida's secretary of state from enforcing the portions of Florida's voting law, as amended in 2011, which severely curtail the voter-registration efforts of civically minded nonpartisan groups trying to increase voter participation.
The injunction order was entered last week in a lawsuit brought by, among others, the venerable League of Women Voters, one of America's most-trusted organizations. In the lawsuit, the League alleged that it was forced to stop its voter-registration drives in Florida — something it had been doing for 70 years— because the 2011 voting law was so onerous that the organization was at constant risk of noncompliance if it continued its registration activities.
The judge's ruling is fairly technical because it addresses what appears, at first blush, to be a series of facially neutral changes to administrative rules for registering voters. But appearances can be deceiving. There is nothing neutral about Florida's 2011 voting law— especially as it relates to voter registration.
To the contrary, Florida's 2011 voting law targets the voter-registration activities conducted by groups like the League as a means of suppressing the numbers of new people who are registered to vote— which is impermissible. This is precisely what the judge held.
First, Hinkle reaffirmed that an organization has a core First Amendment speech right to solicit voters to fill out registration applications and a right to assemble volunteers to do so. He reiterated that under the National Voter Rights Act of 1993, an organization "has a federal right to conduct a voter-registration drive, collect voter-registration applications and mail in the applications to the state voter-registration office." While these are not new legal principles, the fact that the state of Florida took the position that the activities of the League and others did not implicate any constitutional rights at all and were not covered by the NVRA, shows that they are under attack.
Why are they under attack?
Activists across Florida and nationally are convinced that the attack is based on the fact that grassroots, community and church groups engaged in voter-registration drives are incredibly effective at reaching traditionally under-represented segments of the voting population, especially minorities. For example, according to the 2010 Current Population Survey, in Florida, 16.2 percent of African-Americans and 15.5 percent of Hispanics, registered through voter-registration drives. That compares with 8.6 percent of white voters.
The judge also held that the 2011 voting law imposes a "harsh and impractical 48–hour deadline for an organization to deliver applications to a voter-registration office and effectively prohibit[s] an organization from mailing applications in" — all in violation of the Constitution and the NVRA. He also found that the 48-hour provision was so poorly worded that it was impossible to discern a proper interpretation. In fact, the different county election supervisors have developed a patchwork of interpretations. Some have decreed that applications must be turned in within 48 hours even if their offices are closed — which is an impossibility.
The 48-hour deadline puts at risk all organizations that rely on volunteers to conduct their registration drives. The deadline also runs counter to the basic protocols and "best practices" that have been developed by voter-registration organizations to insure that the applications they receive are as complete and accurate as possible. These include procedures for quality control, cross-checking and re-reviewing applications for completeness and clarity, and follow-up contact with applicants to resolve questions or doubts. All of this takes time, as does logging in the applications for future follow up in order to insure that the applicants are actually registered.
Hinkle also enjoined what he called "burdensome record-keeping requirements that serve little, if any purpose," including the requirement that organizations track blank applications that have yet to be used.
This last provision best exemplifies the current fight to overturn the 2011 voting law. Those who wish to suppress the right of organizations to improve our democracy by registering eligible voters will use every technicality available to accomplish their goal. But voting is not a technicality. It is a fundamental right and groups that seek to promote the exercise of that right deserve their day in court. The judge gave them their day in court, and he fairly and correctly put a stop to the technicalities.
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