The US District Court for the District of Columbia [official website] declined to approve changes to Florida election law [HB 1355, materials] that would have reduced the number of early voting days in five of the state's 67 counties. The three-judge panel rejected [opinion, PDF] the state's arguments that minority voters would not be inequitably affected by reducing early voting days in Collier, Hendry, Osceola, Polk and Lee counties, which require Section 5 [DOJ backgrounder] "preclearance" approval under the Voting Rights Act of 1965 (VRA) [materials] in order for the state to make changes in voting districts, polling places and other electoral processes. Approval can be obtained from the Department of Justice (DOJ) [official website] or a federal court. Florida withdrew its DOJ approval request for the changes and instead sought approval in the DC District Court, which denied approval:
Upon consideration of the entire record ... 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.The VRA was enacted to put an end to the systematic disenfranchisement of minority voters that ran rampant in Southern districts in the 1960s. According to a public DOJ list [materials], currently nine whole states, including Texas, and many individual counties and municipalities are Section 5 Covered Jurisdictions. The Senate last voted to extend the VRA [NYT report] in 2006 by an overwhelming 98-0 vote. In the 2008 presidential election more than half of black voters in Florida cast their ballots during the early voting period [Reuters report], which is twice the rate of white voters. Opponents of the voting hours reductions now will likely challenge them in the state's 62 other counties on the grounds that they are not uniform with the rest of the state.
In June Chris Elmendorf of the University of California, Davis School of Law, wrote [JURIST op-ed] that recent statistical findings may contribute to courts declaring Section 5 of the VRA to be unconstitutional, while simultaneously strengthening the provisions of Section 2. Unlike the preclearance rules of Section 5, Section 2 nationally prohibits election laws that "result" in minority voters having "less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." In May Elmendorf wrote [JURIST op-ed] that the "purpose" rather than the "effects" prong of Section 5 of the Voting Rights Act may offer a better basis to challenge recent state regulations of the voting process. The DOJ relied on the "effects" prong of Section 5, which requires that a new law not have a retrogressive effect on racial minorities' political participation, in denying preclearance to Texas in March, and to South Carolina [JURIST report] in December.