Brown v. Detzner
| Decision Date | 24 September 2012 |
| Docket Number | Case No. 3:12–cv–852–J–99TJC–MCR. |
| Citation | 895 F.Supp.2d 1236 |
| Parties | Congresswoman Corrine BROWN, et al., Plaintiffs, v. Ken DETZNER, etc., et al., Defendants. |
| Court | U.S. District Court — Middle District of Florida |
OPINION TEXT STARTS HERE
Helen Heim Albee, Joseph F. Debelder, Neil L. Henrichsen, Wendy Elizabeth Byndloss, Henrichsen Siegel, PLLC, Jacksonville, FL, for Plaintiffs.
Allen Winsor, George N. Meros, Jr., GrayRobinson, PA, Ashley E. Davis, Daniel Elden Nordby, Florida Department of State, Tallahassee, FL, Cindy A. Laquidara, Jason R. Teal, City of Jacksonville, General Counsel's Office, Jacksonville, FL, for Defendants.
When it comes to protecting the fundamental right to vote, African Americans have special reason to be vigilant. Indeed, the Voting Rights Act was passed in 1965 to “banish the blight of racial discrimination in voting.” 1 In this lawsuit, a group of African American leaders and voters, including a member of Congress, claim that 2011 amendments to Florida's early voting law disproportionately and adversely affect African American voters and are therefore not only unlawful under the Voting Rights Act, but also violate the United States Constitution.
All parties agree that there is no fundamental right to an early voting option. Nevertheless, 32 states have some type of early voting. Florida passed its first early voting law in 2004. Since 2006, Florida law has provided for up to 14 days of early voting, up through the Sunday before the Tuesday Election Day. Importantly, however, the law did not require that early voting be held on Sundays (a day that Plaintiffs say is very important to African American voters) and in practice, relatively few Florida counties conducted early voting on Sundays.
By most accounts, Florida's early voting system was working well and over the years early voting became increasingly popular, especially with African American voters. In 2011, the Florida legislature decided to change the early voting law. Of concern to Plaintiffs, the legislature did so without clearly identifying why the law needed to be changed, without creating much of a legislative record to document its reasons for the change, and against the advice of the Florida State Association of Supervisors of Elections, which represents the local supervisors of elections who actually administer the early voting law.
The amended law reduces the number of early voting days from no fewer than 12 to 8, starting with the Saturday ten days before Election Day and ending the Saturday two days before Election Day. During those eight days, local elections supervisors have discretion to offer between 6 and 12 hours of early voting each day. Unlike the old law, which the Plaintiffs are asking the Court to restore, the new law does mandate two Saturdays and one Sunday of early voting, although not the Sunday immediately before Election Day. Also, if local supervisors maximize the number of hours permitted by the new law (as almost all of the large counties in Florida plan to do for the upcoming general election), the total number of early voting hours—96—is the same as under the old law. Here is a chart comparing the early voting days and hours under the old and new laws:
+--------------------------------+
¦ ¦Old Law ¦New Law ¦
+-------------+--------+---------¦
¦Total Days ¦12–14 ¦8 ¦
+-------------+--------+---------¦
¦Weekend Days ¦2–4 ¦3 ¦
+-------------+--------+---------¦
¦Sundays ¦0–2 ¦1 ¦
+-------------+--------+---------¦
¦Total Hours ¦96 ¦48–96 ¦
+-------------+--------+---------¦
¦Weekend Hours¦16 ¦18–36 ¦
+-------------+--------+---------¦
¦Sunday Hours ¦0–16 ¦6–12 ¦
+--------------------------------+
While federal courts are reluctant to interfere with the enforcement of duly enacted laws of a state, the federal court does have an established and proper role as a guardian of all citizens' right to vote and to ensure that a state's voting laws are not contrary to the Voting Rights Act or the Constitution. The Court takes this obligation seriously; it has carefully reviewed the law and the record, and conducted a lengthy hearing on September 19, 2012. While acknowledging Plaintiffs' understandable concerns about how the change in the law might impact African American voters, the Court concludes that the new law will not impermissibly burden the ability of African Americans to vote. Plaintiffs have not shown that they are substantially likely to prevail on their claims that the new early voting law is unlawful under the Voting Rights Act or violates the Constitution. My reasoning follows.
On July 27, 2012, Plaintiffs 2 initiated this action against Defendants Ken Detzner, in his official capacity as Florida Secretary of State (the Secretary), and Jerry Holland, in his official capacity as Supervisor of Elections for Duval County, Florida (Holland). In the Complaint (Doc. 1), Plaintiffs allege that certain recent amendments to Section 101.657(d) of the Florida Statutes pertaining to the time period for early voting in Florida, violate both the Florida and the United States Constitutions, as well as Section 2 of the Voting Rights Act (VRA), 42 U.S.C. § 1973(a). The Republican Parties of Broward, Clay, Sarasota, and Highlands Counties (Intervenor Defendants) have been permitted to intervene. Clerk's Minutes (Doc. 29); Clerk's Minutes (Doc. 38). This case is before the Court on Plaintiffs' Motion for Preliminary Injunction (Doc. 15) and Amended Memorandum in Support (Doc. 17; Plaintiffs' Memo), to which the Secretary, Holland, and Intervenor Defendants responded.3See Secretary's Response (Doc. 30); Holland's Response (Doc. 28); Response of Broward, Clay and Sarasota Intervenors (Doc. 35; Intervenor Defendants' Response); see also Response of Highlands County Intervenor (Doc. 36, Ex. B). The Court held a hearing on the Motion for Preliminary Injunction on September 19, 2012, the record of which is incorporated by reference. Because the early voting period for the November general election is rapidly approaching, and certainty about the early voting law is important for all voters, the Court has expedited its review and decision.
In 2004, the Florida legislature amended Florida's election laws to allow in-person early voting for the first time in Florida.4See C.S.S.B. 2346, 2004 Fla. Sess. Ch. 2004–252, § 13. Prior to the amendments at issue in this lawsuit, Florida's “Early Voting Statute” provided as follows:
Early voting shall begin on the 15th day before an election and end on the 2nd day before an election.... Early voting shall be provided for 8 hours per weekday and 8 hours in the aggregate each weekend at each site during the applicable periods. Early voting sites shall open no sooner than 7 a.m. and close no later than 7 p.m. on each applicable day.
Fla. Stat. § 101.657(d) (2005 Early Voting Statute). Thus, the early voting period lasted 12–14 days, with 96 total hours of early voting, including eight hours of early voting during each of the two weekends immediately preceding the election. Id. The statute provided the supervisors of elections with discretion to determine whether the eight hours of weekend voting would take place on a Saturday, a Sunday, or be split between both. See Florida v. United States, 885 F.Supp.2d 299, 308–09, No. 1:11–cv–1428, 2012 WL 3538298, at *5 (D.D.C. Aug. 16, 2012).
On May 19, 2011, the Governor of Florida signed into law a bill amending several aspects of Florida's elections laws, including the 2005 Early Voting Statute. H.B. 1355, 2011 Fla. Sess. Law Serv. Ch. 2011–40 (HB 1355). This lawsuit pertains solely to the section of HB 1355 concerning the time period for early voting. Florida law now provides that:
Early voting shall begin on the 10th day before an election that contains state or federal races and end on the 3rd day before the election, and shall be provided for no less than 6 hours and no more than 12 hours per day at each site during the applicable period.
Fla. Stat. § 101.657(d) ( ) (2011 Early Voting Statute). This amendment eliminates from four up to six 5 days of early voting in Florida, and requires early voting to end on the Saturday before the election. Id. As such, supervisors of elections are now prohibited from conducting early voting on the Sunday before Election Day, as was previously allowed, but not required, under the old law. Id. In addition, supervisors of elections now have the discretion to allow as little as 48 hours of early voting (six hours a day for eight days), or as much as 96 hours of early voting (12 hours a day for eight days). Id.
Pursuant to Section 5 of the VRA, 42 U.S.C. § 1973c, five Florida counties 6 must obtain advance approval, or “preclearance” from either 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 U.S.C. § 1973c(a); see also Florida, 885 F.Supp.2d at 303–05, 2012 WL 3538298, at *2. On August 1, 2011, the State of Florida filed a Complaint in the United States District Court for the District of Columbia seeking judicial preclearance of four of the changes to its voting laws contained in HB 1355, including the early voting amendments at issue in this lawsuit. See Florida, 885 F.Supp.2d at 305–07, 308–09, 2012 WL 3538298, at *3, *5. On August 16, 2012, a three-judge district court held, in relevant part:
[W]e cannot preclear Florida's early voting changes at this time because the State 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,...
To continue reading
Request your trial
-
N.C. State Conference of the NAACP v. McCrory
...in part, by extrapolating from Florida's experience when it reduced early voting from fourteen to eight days.80 Brown v. Detzner, 895 F.Supp.2d 1236, 1239 (M.D.Fla.2012) ; (Pl. Ex. 40 at 25–29; Pl. Ex. 42 at 83). But, just as Florida's experience proved to lack any predictive power for Nort......
-
Austin v. Univ. of Fla. Bd. of Trs.
...Agenda, Inc. v. Kemp , 347 F. Supp. 3d 1251, 1263 (N.D. Ga. 2018) (citing declaration by Plaintiff McDonald); Brown v. Detzner , 895 F. Supp. 2d 1236, 1251 (M.D. Fla. 2012) (citing declaration by Plaintiff Smith); League of Women Voters of Fla. v. Browning , 575 F. Supp. 2d 1298, 1308 (S.D.......
-
League of Women Voters of Fla., Inc. v. Lee
...its reasons for the change, and against the advice of the Florida State Association of Supervisors of Elections." Brown v. Detzner , 895 F. Supp. 2d 1236, 1239 (M.D. Fla. 2012).Before HB 1355, early voting in Florida began on "the 15th day before an election" and ended "on the 2nd day befor......
-
Ohio State Conference of the Nat'Lass'N v. Husted
...in Gingles that apply to vote dilution claims only. Gingles, 478 U.S. at 50–51, 106 S.Ct. 2752. 11. For example, Brown v. Detzner, 895 F.Supp.2d 1236, 1251 (M.D.Fla.2012), one of the cases Defendants cite in their retrogression argument, see Appellants Br. at 42, is in fact distinguishable ......