by Aaron Carter, Associate Editor

Alberto, Ernesto, Florence and Valerie are all names of Atlantic Ocean hurricanes that have taken shape in 2012.  As of now they are 4 of the 21 hurricanes we have seen this season.  Hurricane season in Florida ranges from bad to worse depending on the storm systems that are cooked up in any given year.  Still, a hurricane or any other type of force majeure will not exonerate a third party organization for not turning in voter registration forms within the 48-hour window provided under Fla. Stat. § 97.0575 and implementing rule 1S 2.042.  HB1355, which passed in 2011 and amended the statute states, “[T]he fines provided in this subsection shall be reduced by three-fourths in cases in which the third party voter registration organization’s failure to deliver the voter registration application within the required timeframe is based upon force majeure or impossibility of performance.”  Third-party organizations have been in a battle over various changes in election law the past two years. The regulations of third-party organizations registering voters in Florida have been adjudicated in court, but its effects may last until Election Day with significant consequences for a pivotal election. 

HB1355 was a game changer when it comes to third-party organizations in Florida.  The legislation added obstacles (or safeguards) to the process depending on how one views third-party organizations. The League of Women Voters of Florida et. al. v. Browning, 2012 WL 1957793 has rolled back the enforcement of these changes but the damage of laboring under such a system may have taken its toll. U.S. District Court Judge Robert Hinkle granted an injunction against various parts of HB1355. Fla. Stat. § 97.0575(1)(c), and (d) were enjoined to the extent it requires delivery of an application within 48 hours—or any period less than 10 days; (d) Rule 1S-2.042(3)(a), was enjoined to the extent it requires disclosure of an employee or volunteer who does not actually collect or handle voter-registration applications and to the extent it requires disclosure of a volunteer’s termination within 10 days after it occurs; Rule 1S-2042(3)(a), (c), (d), (e) were enjoined to the extent it requires disclosure of a volunteer’s termination within 10 days after it occurs;  Rules 1S-2.042(5), (6)(b), (6)(c) were enjoined to the extent it addresses form DS-DE123 and Rule 1S-2.042(7)(a).   These rules were burdens on third-party organizations attempting to register voters. Nonetheless, the effects of laboring under these regulations are already apparent.  As described in the New York Times,

Voter registration, particularly among Democratic voters, declined significantly in the past year. The Florida Times-Union reported this week that the number of registered Democrats had increased by only 11,365 from July 1, 2011, to Aug. 1, 2012, a sharply lower figure than in the same periods during the past two presidential races. In 2004, nearly 159,000 new Democrats were registered in that period. In 2008, the number was nearly 260,000.

While the League of Women Voters injunction represented a victory for third party voter registration organizations, time is a commodity that these organizations cannot recapture.  These changes in election law cast a cloud over third-party organizations until the court provided clarity.  But it may be too late.  The imposition of such a system may have had a significant effect on the electoral makeup of the election.

How This Disparity in Voter Registrations Happened:

In 2008, volunteers stretched out across cities registering people to vote at movies, concerts, supermarkets, bus stops, and churches. Hundreds of thousands of new voters were incorporated into the voting process because the ease with which they could be registered.  Fort Lauderdale is the county seat of Broward County.  It is one of the bluest counties in Florida. The current registration disparity is 574,822 Democrats to 257,004 Republicans with 276,117 registered as “Other.”  With kids turning 18, large numbers of immigrant populations, and people consistently relocating in the highly transient county, there were always people to register to vote.  With these demographics it made sense to spend a large amount of time registering voters even if a third of people who were registered did not vote Democratic.

As the 2010 Midterm elections ended and 2011 rolled around, the implementation of HB1355 resulted in a variety of changes for third party organizations, which stifled voter registration.

Under the old election law “Anyone could solicit and collect voter registration applications without having to register with the State.”  Under the new election law, “Any person, entity, or organization that solicits and collects voter registration applications must register as a third party organization except: a person who registers their spouse, child, or parent; or an employee or agent working on behalf of the Division of Elections, Supervisor of Elections, DMV, or an official voter registration agency.” Under the new law, an aunt who wants to register her niece is considered a third party organization.  A bible study participant who wants to register fellow parishioners is considered a third party organization.  A senior citizen who wants to register other senior citizens in her building is considered a third party organization.  By being classified as a third party organization a person is subject to a considerable number of penalties and regulations.

Under the law, each third-party organization had to fill out a Form DS-DE 119.  Within that document the organization must list all of the organization officers and an agent of process within the state.  For large organizations this requirement is not onerous, the law presents obstacles for smaller grassroots groups and individuals that historically registered voters.  Churches, teachers, coaches, leaders of civic organizations (i.e. the YMCA, the Boys and Girls Club, College Democrats or the food bank) could not take steps on their own to register voters and raise awareness in their circles.  The hurdles were not insurmountable but the law raised considerable problems that smaller organizations would cautiously have to work through without a lawyer or detailed knowledge of the process.

For larger organizations, the law forced a type of centralization that had not been necessary before.  Previously, a person could walk into the office and ask how they could help out.  A staff member would explain the voter registration form to them and encourage them to go register people to vote in their local community.  Now organizations needed “A sworn statement from each registration agent employed by or volunteering for the organization stating that the agent will obey all state laws and rules regarding the registration of voters. Such statement must be on a form containing notice of applicable penalties for false registration [including fines and felony charges].”  Volunteers and the organization now exposed themselves to penalties where a silly mistake could cost them considerably.

For example, the statute states, “All voter registrations shall be promptly delivered to the division or the supervisor of elections within 48 hours after the applicant completes it or the next business day if the appropriate office is closed for that 48-hour period.” In addition to having no recourse for a force majeure, simple mistakes such as a person writing the wrong date on a voter registration exposes a person to penalties.  The statute continues, “The date on which an applicant signs a voter registration application is presumed to be the date on which the third-party voter registration organization received or collected the voter registration application.”  By signing a wrong date, a person could expose a third party organization to a fine.

For larger organizations there was an even scarier prospect: the possibility of losing the ability to register voters.  HB1355 states, ”The aggregate fine pursuant to this paragraph subsection which may be assessed against a third-party voter registration organization, including affiliate organizations, for violations committed in a calendar year shall be $1,000.“  With such a low ceiling larger organizations might consider the fines “a cost of doing business” if the total could not exceed $1,000. Yet, the statute vested various powers in the Secretary of State, Attorney General and Division of Elections in Tallahassee.   These statewide elected positions had considerable power to initiate actions. “If the Secretary of State reasonably believes that a person has committed a violation of this section, the secretary may refer the matter to the Attorney General for enforcement.  The Attorney General may institute a civil action for a violation of this section or to prevent a violation of this section. An action for relief may include a permanent or temporary injunction, a restraining order, or any other appropriate order.”  With the powers of elected Republican officials nebulous at best, third party organizations treaded lightly and the result was the aforementioned disparity in voter registration totals.

While Voter ID laws and the reduction of early voting hours has gotten much publicity and national attention, the ability of state legislatures to limit the fluidity with which third party organizations could and can register voters will have a large effect on the election. The discrepancies in the number of voter registrations over the same timeframes leading up to the 2004, 2008 and 2012 Presidential elections shows the effect of the new legislation on the attempts of the third party organizations to expand the franchise to eligible voters in Florida. The term “third party organization” alone does a disservice to civically minded individuals.

Whether exposing third party organizations to an appreciable amount of oversight is necessary or not, the new law has considerably slowed the voter registration process down and centralized the process under the auspices of those capable of maneuvering through the statute’s dictates.  While some of the effects are clear now, the ability of third party organizations to overcome these obstacles may determine the color of Florida in the 2012 elections.

Florida congressional candidate Alan Grayson’s Campaign Manager Mitch Emerson stated “Voter reg[istration] has not been a focus of ours because of the significant changes in the law.  We have re-tooled and refocused our efforts so we are excelling in Vote-By-Mail rather than voter reg[istration]. We still have a long way to go but we are trying new methods to make sure people are voting.  We have had very positive results.  As of now we are 5% off of the early vote pace of 2008 and Republicans are 12% off pace, so it is not all bad.”

The author worked for the Democratic National Committee in South Florida from June 2008 – November 2008 and June 2010 – August 2011.


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