Florida v. United States

885 F.Supp.2d 299

State of FLORIDA, Plaintiff,

v.UNITED STATES of America, et al., Defendants.

Civil Action No. 11–1428.

United States District Court, District of Columbia.

Aug. 16, 2012.

William S. Consovoy, Brendan J. Morrissey, John Michael Connolly, Wiley Rein LLP, Washington, DC, Daniel E. Nordby, Ashley E. Davis, Florida Department of State, Tallahassee, FL, for Plaintiffs.

Thomas E. Perez, Assistant Attorney General, Civil Rights Division, Elise Sandra Shore, T. Christian Herren, Jr., John Albert Russ IV, Catherine Meza, Ernest A. McFarland, Civil Rights Division, Voting Section, U.S. Department of Justice, Washington, DC, Ronald C. Machen, Jr., United States Attorney, Washington, DC, for Defendants.

Randall C. Marshall, Julie A. Ebenstein, American Civil Liberties Union Foundation of Florida, Inc., Miami, FL, Arthur B. Spitzer, American Civil Liberties Union of the Nation's Capital, Washington, DC, M. Laughlin McDonald, American Civil Liberties Union Foundation, Inc., Atlanta, GA, Estelle H. Rogers, Project Vote, Washington, DC, for the Sullivan Group.

Debo P. Adegbile, Ryan P. Haygood, Dale E. Ho, Natasha M. Korgaonkar, NAACP Legal Defense and Educational Fund, Inc., New York, NY, for the NAACP Group.

Daniel C. Schwartz, Rodney F. Page, Alec W. Farr, James J. Murphy, Daniel T. O'Connor, Nicholas S. Sloey, Ian L. Barlow, Bryan Cave LLP, Washington, DC, Jon M. Greenbaum, Mark A. Posner, Lawyers' Committee for Civil Rights Under Law, Washington, DC, Wendy Weiser, Diana Kasdan, Lee Rowland, The Brennan Center for Justice at NYU School of Law, New York, NY, for the Sullivan Group.

Before GARLAND, Circuit Judge, and KOLLAR–KOTELLY and HUVELLE, District Judges.

PER CURIAM:

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 (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, seeFla. 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 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 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. SeeFed.R.Civ.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. See28 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, 86 S.Ct. 803, 15 L.Ed.2d 769 (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 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

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 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 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. § 1973 l(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 also41 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, 119 S.Ct. 693, 142 L.Ed.2d...