Dan Tokaji's Blog
Professor Dan Tokaji
Election reform, the Voting Rights Act, the Help America Vote Act, and related topics -- with special attention to the voting rights of people of color, non-English proficient citizens, and people with disabilities

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Equal Vote
Saturday, June 10
More on Florida's Registration Rules
I've now had a chance to read the Brennan Center's motion for preliminary injunction in the case challenging Florida's new registration laws (League of Women Voters of Florida v. Cobb). As I mentioned in Tuesday's post, the Florida League maintains that this law forced them to shut down voter registration activities in Florida. A closer look at the brief reveals that it raises substantial questions about how voter registration is conducted and regulated.

According to the brief filed on behalf of the League of Women Voters and other plaintiffs, the law applies exclusively to non-party groups conducting registration drives. It imposes fines of $250 for registration applications submitted more than 10 days after they're collected, $500 files for ones submitted after the deadline, and $5000 for ones not submitted at all. According to the brief, there is strict liability -- meaning that there's no excuse that can avoid the fines, even where reasonable care was exercised or something beyond the control of the groups prevents the forms from being delivered. (As examples, the brief mentions acts of God like hurricanes, or the death of League members collecting forms.) However, the fines may be reduced if groups pre-register with the state and comply with quarterly reporting rules. Organizations and the individuals collecting registrations are jointly and severally liable.

The plaintiffs' argument rests mostly on the idea that it violates the First Amendment to treat party-affiliated voter registration efforts more favorably than voter registration by non-party groups. And on its face, the distinction drawn by Florida's law seems hard to defend. For example, the brief notes that the "Surfers Party of America" isn't subject to the same restrictions and fines to which the League would be subject, if it continued its voter registration efforts. One would expect that, if Florida's law is upheld, nonpartisan organizations like the League will curtail their registration drives, thus shifting the burden to the parties to conduct registration.

Florida will likely attempt to defend its law by arguing that non-party groups present a greater threat than the parties, in terms of failing to return registration forms. But it's hard to avoid the conclusion that partisan considerations played at least some role in this. Florida's legislature is dominated by Republicans and the state, of course, has a Republican governor. While there are certainly right-leaning groups that conduct voter registration drives, the general perception is that left-leaning groups -- like ACORN and the NAACP -- will be more severely affected.

The appearance of partisan bias is fueled by another law, HB 125, that the Florida legislature passed and Governor Jeb Bush just signed, as noted in the Miami Herald. (Thanks to Nate Persily for the pointer.) That NRA-backed law, which may be found here, requires voter registration applications to be displayed everywhere that hunting, fishing, and trapping licenses are sold. Those applying for such licenses must be asked whether they'd like to register, but those subagents aren't deemed third-party registration organizations under Florida law. There's certainly nothing wrong with a law making voter registration available to more voters. But making registration easier for this group of voters, while at the same time impeding non-party voter registration drives, suggests that the majority party in Florida is seeking to tilt the registration rules to its own advantage.

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Moritz College of Law The Ohio State University