JoNel Newman on “Voting Rights in Florida, 1982-2006”

JoNel Newman, Assistant Professor of Clinical Legal Education here at UM (and also special counsel to the ACLU), has written a major report on the implementation of the Voting Rights Act in Florida. The report, Voting Rights in Florida, 1982-2006, which is being issued today, was commissioned by the Leadership Conference on Civil Rights Education Fund through RenewtheVRA.org, a coalition of national and grassroots civil rights organizations working to renew and strengthen the Voting Rights Act.

Prof. Newman’s report is one of 14 state reports requested by Congress to examine the impact of the Voting Rights Act over the past 25 years, since the last time the Act was fully reauthorized. (The other reports cover Alabama, Alaska, Arizona, California, Georgia, Louisiana, Mississippi, New York, North Carolina, South Carolina, South Dakota, Texas and Virginia.) It includes recent examples of voting rights violations, and ties these to a need to renew the expiring provisions of the Voting Rights Act. The report also calls for the extension of assistance to language minorities, including assistance for citizens speaking Haitian Creole, which it says are needed “now more than ever.”

In a press release accompanying the release of the report, Howard Simon, Executive Director of the ACLU of Florida calls it “the most comprehensive analysis produced in the last 25 years documenting the impact of the Voting Rights Act on Florida elections.” Prof. Newman says, “We have made a lot of progress in 40 years but we are far from finished. … All Floridians need to do is look at the elections of 2000 and 2004 to see that VRA violations are still a persistent feature of our State’s political landscape.”

The 1965 Voting Rights Act bans discrimination voting practices such as literacy tests and unfair redistricting schemes. Congress is currently considering whether to renew key parts of the statute, notably those providing for language assistance, Election Day monitors and Justice Department pre-approval of voting changes. Without renewal, these provisions will expire in August, 2007.

Below I reproduce the executive summary of the report:

The essential role of the Voting Rights Act in protecting the voting rights of Florida’s racial and language minorities cannot be overemphasized. Since 1982 the protections of the Act have been exceedingly important in guaranteeing Florida’s minority voters access to the ballot box. Review of Florida’s history under the Voting Rights Act since 1982 reveals that the special protections afforded race and language minorities under Sections 5, 4(f)(4) and 203 of the Act are needed now more than ever.

Portions of Florida were brought under the Section 5 preclearance provisions of the Voting Rights Act as a result of the Act’s expansion in 1975. In that enactment, Congress was particularly concerned about addressing discrimination against members of language minority groups and literacy requirements. As a result of the 1975 expansion, five Florida counties were designated as Section 5 covered jurisdictions – Collier, Hardee, Hendry, Hillsborough and Monroe Counties.

Although the Department of Justice’s review under Section 5 is limited to voting changes affecting only five counties, as a practical matter this includes all statewide changes such as voter registration requirements and list maintenance, state reapportionment, and other significant state legislation affecting voting. The Section 5 review process in Florida has proven invaluable in protecting minority voting rights on a statewide basis, as demonstrated by the objections filed by DOJ and the resolutions thereto, as well as the dialogue occasioned by the Section 5 review process even where no objection was interposed.

As a result of the Section 5 objection to Florida’s 1992 state reapportionment plan, the state created a majority-minority state senate district in the Tampa Bay/Hillsborough County area where previously none had existed even though black and Hispanic persons constituted more than 40.1 percent of the voting-age population in the area and the legislative record showed that the redistricting had been undertaken with the purpose of protecting white incumbents. Similarly, the Department of Justice’s objection to Florida’s 2002 state reapportionment plan resulted in the preservation of a Hispanic majority state house of representatives district in Collier County which the state had planned to eliminate.

The Department of Justice has also interposed objections to two statewide changes to the administration of elections, in both instances protecting the rights of race and language minority voters throughout the state. The first objection was interposed in 1985 to legislation that would have prevented absentee voters from receiving assistance in marking their ballots from persons of their choice in violation of Section 208 of the Voting Rights Act. In this regard, the objection both protected minority voting rights and eliminated the need for litigation under Section 208. The second objection, in 1998, also preserved minority voting rights, this time in the face of documented experience in the preclearance counties that absentee ballot changes adversely impacted the ability of minority voters to cast a ballot.

Perhaps even more significant in the discussion of Section 5’s salutary impact in Florida is the history of the dialogue among interested constituencies, Department of Justice officials and state officials that is the result of the Section 5 review process. On several occasions, this dialogue has been shown to shape results that protect the rights of minority voters without the need for an objection or litigation.

The language minority protections of Sections 4(f)(4) and 203 are exceptionally important in Florida, where the defining feature of the latter part of the twentieth century was the enormous increase in the state’s limited English proficient population. According to the 2000 Census, almost 400,000 Floridians live in linguistically isolated households with no English proficient member. Florida is home to an increasing number of citizens arriving from Puerto Rico, and it also has a protected Native American population with limited English proficiency.

A recent and ongoing history of discrimination against language minority groups with respect to the exercise of the right to vote is well-documented in Florida. The discrimination has been particularly prevalent in areas that have experienced substantial growth in the language minority population, including Miami-Dade County and much of central Florida. Section 203 remains necessary to protect this population.

In addition to the state’s history and experiences with the special coverage provisions of the Voting Rights Act, a review of the history of Florida’s voting rights problems in other areas is instructive in evaluating the need for continuing the special coverage provisions in Florida. This history reveals a predilection by many Florida counties to use at-large election schemes to dilute minority voting strength, the widespread use of many franchise restrictions to purposely restrict the access of minority voters to the ballot, and well-documented racially polarized voting. The state has also repeatedly sought to remove valid voters from the voter rolls in a manner that disproportionately impacts black voters.

Maintaining a framework of federal scrutiny for Florida’s voting changes through Section 5 is important in regaining and retaining public confidence in the system – particularly among minority voters. Sections 203 and 4(f)(4) continue to be essential to guarantee an opportunity for meaningful participation in the electoral process by Florida’s language minorities.

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