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Complaint to Halt Sections of 2001 Florida Election Reform Act
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CHARLES L. MAJOR, JR., and
FLORIDA VOTERS LEAGUE, INC.
Plaintiffs,
vs.
HARRY L. SAWYER, JR., Supervisor of Elections, Monroe County, Florida, and KATHERINE HARRIS, Secretary of State of the State of Florida,
Defendants
COMPLAINT
THREE-JUDGE DISTRICT COURT REQUESTED
Plaintiffs, CHARLES L. MAJOR, JR., an African American voter of Monroe County, and the FLORIDA VOTERS LEAGUE, INC., bring this action to stop the implementation of three sections of the Florida Election Reform Act of 2001 (hereafter "Election Reform Act" or "Act"), to wit: (1) the Voter Responsibilities section of the Act, Fla. Stat. § 101.031, (2) the voter list maintenance procedures established by the Act, Fla. Stat. § 98.0977, and (3) the provisional balloting section of the Act, Fla. Stat. § 101.048. Plaintiffs claim that the use of these provisions will impose new, retrogressive, illegal and discriminatory voting requirements on the plaintiffs and on minority voters in local, state and federal elections in Monroe County, Florida in violation of their rights as protected by Section 5 of the Voting Rights Act, 42 U.S.C. §1973c, because the challenged provisions of the Election Reform Act have not been precleared by the Department of Justice. Plaintiffs also request that this Court enjoin the implementation of the Voter Responsibilities section of the Act on the basis that the law on its face violates plaintiffs' rights protected by the Voting Rights Act, 42 U.S.C. §§ 1971, 1973b(c), because the challenged provisions of the Election Reform Act are an unlawful test or device in determining eligibility to vote and because the law violates plaintiffs' right to vote as protected by the first, fourteenth and fifteenth amendments to the United States Constitution and 42 U.S.C. §1983.
Jurisdiction, Three Judge Court, and Venue
This Court has jurisdiction over plaintiffs' claims pursuant to 28 U.S.C. §§ 1331, 1343(a)(3) and (4), 2201 and 2284, and 42 U.S.C. § 1973j(f). This suit is authorized by 42 U.S.C. §§ 1983 and 1973j(d).
A district court composed of three judges is required to hear plaintiffs' claim that defendants have violated Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c.
Venue in this District is proper pursuant to 28 U.S.C. § 1391 in that plaintiffs reside in this District, the defendants' actions which are the subject of this lawsuit occurred or will occur in this District and defendants reside in or conduct business in this District.
Parties
Plaintiff Charles L. Major, Jr., is a Black citizen of the United States, a registered voter and a lifelong resident of Key West, in Monroe County, Florida.
Plaintiff Florida Voters League, Inc., is a Florida not-for-profit corporation and nonpartisan membership organization that seeks to promote political responsibility and an informed, active electorate through voter registration and education. Its members include minority voters in Monroe County. On behalf of its membership, the League works to increase voter participation and protect voting opportunities for all citizens, including traditionally disenfranchised minority voters.
Defendant Harry L. Sawyer, Jr. is the Supervisor of Elections for Monroe County, Florida. According to Florida law he has independent responsibility to oversee voter registration and registration lists, Fla. Stat. § 98.015. He is responsible for the administration and oversight of all federal, state and local elections in Monroe County, Florida. He is sued in his official capacity for injunctive and declaratory relief, attorneys' fees and costs.
Defendant Katherine Harris is the Secretary of State of Florida. She is the chief election officer of the State of Florida and has responsibility for general supervision and administration of its election laws, for implementing and interpreting Florida election laws and for disseminating, through the Department of State's Division of Election, instructions and rules to each county supervisor of election regarding election laws, including the implementation of the Voter Responsibilities portion of the Election Reform Act. Fla. Stat. § 97.012. Pursuant to the challenged provisions of Fla. Stat. § 101.031, she is charged with the production and distribution of copies of the Voter Responsibilities which she is to require each County Supervisor of Elections, including defendant Sawyer, to prominently post in all non-municipal elections. She is sued in her official capacity for injunctive and declaratory relief, attorneys' fees and costs.
At all times relevant to this Complaint, each of the defendants are and were acting under color of state law.
Factual Allegations
History of Discrimination in Florida and Monroe County
Congress created Section 5 of the Voting Rights Act, 42 U.S.C. §1973c, as added protection for the voting rights of racial and language minorities who resided in jurisdictions that had a particular history of discrimination with respect to voting. Coverage under Section 5 is triggered by a determination by the Attorney General that the County had employed a voting "test or Device," at the time of the passage (or amendment) of the voting rights act, coupled with a determination by the Director of the Census that less than 50 per cent of the persons of voting age residing therein were registered or had voted in the most recent previous presidential election.
The State of Florida in general, and Monroe County in particular, shared a history of discrimination against their minority citizens which has resulted in the systematic disenfranchisement of African Americans and Latinos. Following the Reconstruction Era, Florida's all-White Legislature embraced a series of devices designed to either completely deny minorities the right to vote or effectively render their vote meaningless. In 1885, Article VI, Section 8 of the Florida Constitution imposed a poll tax which disenfranchised poor minority voters. In 1887 the Legislature required voter registration for the first time and simultaneously provided for disenfranchisement of all persons convicted of a felony, bribery, perjury, larceny or any infamous crime. 1887 Fla. Laws chs. 3,704-3,705. The Democratic Party established the white primary in 1900. One year later, the Florida Legislature passed the "white primary" law which effectively barred all Blacks from the political process. From Reconstruction until 1968 not a single Black was elected as a representative to the state house.
At the same time it took away the voting rights of African Americans, Florida enacted numerous "Jim Crow" laws which legalized segregation of public schools, restrooms, beaches, transportation and other facilities. Article XII, Section 12 of the 1885 Florida Constitution segregated school children based on race. Article XXVI, Section 24 of that same Florida Constitution outlawed intermarriage among the races.
Nor are these acts of overt official discrimination confined to the distant past. As recently as 1967, Florida law provided that: "The Florida Public Service Commissioners may prescribe reasonable rules and regulations relating to the separation of white and colored passengers in passenger cars being operated in this state by any railroad company or other common carrier." Fla. Stat. § 350.20. The 1967 statutes further provided that "the words 'Negro,' 'colored,' 'colored persons,' 'mulatto,' or 'persons of color,' when applied to persons, include every person having one-eighth or more of African or Negro blood." Fla. Stat. § 1.01(6).
Monroe County and its most populous community, Key West, have also engaged in explicit acts of official racial discrimination. In the early 1830s nervousness about the existence of some freed slaves in the area led to the enactment of a series of extraordinarily repressive ordinances. The migration of free Blacks to the area was explicitly forbidden, and Blacks were subject to seizure for violation of the law without a warrant or any other proof under oath. An Act to Prevent the Future Migration of Free Negroes or Mulattoes of this Territory, and for other Purposes, Acts of the Legislative Council, Florida Territorial Legislature (1832). "Free negroes" were subject to a local per capita tax, the same as "mulattoes and slaves." An Act to Incorporate the City of Key West, Acts of the Legislative Council, Florida Territorial Legislature (1832). No "colored person", whether freed or slave, was permitted on the streets or permitted to make any kind of noise after 9:30 p.m., and any offender was subject to being immediately taken into custody "by the [Key West] city Marshal or by any white person" and whipped at the discretion of the Mayor. Ordinance No. 3, Sec. 3, Ordinances of the City of Key West (1856).
At the turn of the last century, Key West was Florida's largest and wealthiest city. Approximately one-third of its population was Black. Its minority citizens were segregated and disadvantaged. In the late 1880s the City was described as consisting of three separate areas, "Conch Town, Nigger Town, and Cuban Village," and poor Blacks were relegated to an area of the city designated for "Negro Tenements." Public schools were segregated, and the "Colored School" was often closed due to lack of funds while its white counterpart was not.
Monroe County did not integrate its schools until the late 1960s, and this act was followed by a race riot at Key West High School. The streets in Key West were not paved in most majority Black neighborhoods until the late 1970s.
While in Florida and Monroe County the overt badges of segregation have been removed, minority citizens in Florida and Monroe County still suffer from the effects of purposeful discrimination, particularly in terms of socio-economic disparities, such as family income, employment rates, literacy and high school graduation rates, and in loss of their traditional homes and neighborhoods through takings and rising taxes. Blacks and Latinos are disproportionately poor. They disproportionately live in segregated, racially-identifiable neighborhoods and in substandard housing. They are less likely to have completed high school. They are more likely to be unemployed. And they are far more likely than non-Hispanic Whites to move frequently within a county, indeed, the majority of moves by African Americans and Latinos is within their county of residence.
As a result of the past discrimination by Monroe County, and its lingering effects, the United States Department of Justice is required to review all voting changes to be implemented in Monroe County (as well as four other Florida counties: Collier, Hardee, Hendry and Hillsborough) pursuant to Section 5 of the Voting Rights Act for possible retrogressive discriminatory effects, and those jurisdictions are required to obtain preclearance from the Department of Justice prior to implementing any change in their voting practices.
The November 2000 Election and the
Election Reform Act of 2001
Many of the lingering racial and ethnic disparities discussed above manifested themselves in the conduct of and controversy surrounding the November 7, 2000 general election in the State of Florida. In the aftermath of that election there were numerous complaints that the ballots of thousands of eligible minority voters were not counted, that in Florida substantial numbers of minority citizens were incorrectly purged from the voter rolls as felons, that language minority voters had been denied necessary assistance at the polls, and that eligible minority voters were prevented from voting because they were unable to present photo identification at the polling places.
In the aftermath of the 2000 election in Florida, there was a general consensus that certain election reforms were necessary. The nature of those needed reforms, however, was a subject of debate from which at least two views emerged. One view held that officials should not be concerned with the rate of voter error because it is the responsibility of the voter to get it right; and if the voter can't figure out how to use a voting system, then they shouldn't vote at all. This view was sanctioned by the Speaker of Florida's House of Representatives who was quoted by the news media as stating that the widespread voter confusion might be a reason to require literacy tests. The opposite view held that officials had an obligation to make the voting process as accessible as possible since an illiterate, uneducated or otherwise disadvantaged voter stands next to the most highly educated one, and both votes count the same.
The challenged provisions of the Election Reform Act echo these two contradictory views. The legislature adopted a Voter's Bill of Rights, all of which are based on Florida election law, but simultaneously enacted the Voter Responsibilities, Fla. Stat. § 101.031, which has no basis in law and is in fact contrary to the requirements of both Florida and federal law, contradicts the Voter's Bill of Rights, and in some respects is even self-contradictory.
The Voter Responsibilities section of the Election Reform Act states:
VOTER RESPONSIBILITIES
Each registered voter in this state has the responsibility to:
1. Study and know candidates and issues.
2. Keep his or her voter address current.
3. Know his or her precinct and its hours of operation.
4. Bring proper identification to the polling station.
5. Know how to operate voting equipment properly.
6. Treat precinct workers with courtesy.
7. Respect the privacy of other voters.
8. Report problems or violations of election law.
9. Ask questions when confused.
10. Check his or her completed ballot for accuracy.
Despite the pronouncement of this new law, there is no independent statutory or regulatory requirement that voters "know the candidates and the issues" nor is there any requirement that the voters "know his or her precinct and its hours of operation". While there are other provisions of Florida law which discuss a voter's need to keep "his or her voter address current" and bringing "proper identification to the polling station", the statement of responsibilities makes no mention of the fact that failure to do so is not a bar to voting.
Indeed, Florida law requires that assistance in operating the voting technology be provided to anyone who so requests at the polling place and that instructional materials regarding the operation of the voting technology also be available at each polling place, and that special accommodations in this regard be made for individuals who are disabled, illiterate or otherwise need assistance in voting. Fla. Stat. §§ 97.061, 101.031.
And while Florida election law provides for photo identification to be requested of voters at the polling place prior to voting, Fla. Stat. § 98.471, if the voter is unable to present photo identification, Florida law requires that the voter be permitted to vote after executing an affidavit affirming his or her identity. Fla. Stat. § 101.49. Similarly, any voter who has moved to a new precinct within the same County is legally entitled to vote in the precinct in which they currently reside after executing an affirmation regarding their change of address even if the voter has not previously apprised elections officials of his or her address change. Fla. Stat. § 101.045(2)(a).
The legislature also repealed the existing practices with respect to the identification and removal of felons from the voter rolls set forth at Fla. Stat. § 98.0975 and replaced them with those set forth in Fla. Stat. § 98.0977. The new law: 1) eliminates the role of a private contractor in the purging process, 2) codifies a basically standardless ex-felon identification procedure, and 3) codifies reliance on a certified mail notification procedure that places the burden for remaining on the voter rolls on the voter.
The legislature further created for the first time provisional ballots, but simultaneously established a system of disqualifying provisional ballots that will likely result in the disqualification of a disproportionately high number of minority votes due to their higher intra-county mobility rates. Fla. Stat. § 101.048. Under the new statute the provisional ballot of a voter who is a legal, eligible voter but mistakenly votes in the wrong precinct must be "Rejected as Illegal," Fla. Stat. § 101.048(2)(b)2.
Similarly, if an individual is erroneously purged from the voter rolls but casts a provisional ballot because his or her name does not appear on the voter list, and fails to resolve the question of eligibility, that provisional ballot will not be counted because the records of the Supervisor of Elections will continue to reflect that the voter is ineligible.
The challenged provisions of the Election Reform Act, Fla. Stat. §§ 101.031, 98.0977 and 101.048, are likely to deter minorities from voting in disproportionate numbers and/or result in their votes being discarded disproportionately. Because of their lower educational achievement rates minorities are less likely to be literate, less likely to have studied the candidates and issues before voting, and are more likely to be intimidated by signage in the polling place. Persons who are impoverished, who have not attended college or university, and persons who are unemployed are also far less likely to have an acceptable form of photo identification as they are less likely to drive, to have employer or school issued photo identification or credit cards. Such individuals are also more likely to be uninformed as to their precinct and its hours of operation, to vote in the incorrect precinct, and are less likely to know how to operate voting equipment properly. They are also much less likely to receive or respond to certified mail.
There is a real and actual controversy between the parties for which plaintiffs have no adequate remedy at law. Absent injunctive relief from this Court, plaintiffs will suffer irreparable injury as a result of the actions of the defendants.
COUNT I
Violation of Section 5 of the Voting Rights Act
42 U.S.C. § 1973c
Fla. Stat. § 101.031
Paragraphs 1 through 30 are incorporated by reference herein the same as though fully rewritten.
The Voter Responsibilities section of the Election Reform Act is on its face a modification or change in state law and is therefore a voting qualification or prerequisite to voting, or standard, practice or procedure with respect to voting, publicity for or assistance in voting that is subject to the preclearance requirements of Section 5 of the Voting Rights Act.
The Voter Responsibilities section of the Election Reform Act has the potential for discrimination in that it is likely to deter electors, particularly racial and language minorities, from voting who have not studied the candidates and issues, are uninformed as to their precinct and its hours of operation, who do not have identification, do not know how to operate voting equipment properly or are otherwise confused regarding some aspect of the election process.
Despite the requirements of Section 5, plaintiffs are informed and believe that neither defendants nor the state of Florida has obtained preclearance for the Voter Responsibilities section of the Election Reform Act from the Attorney General of the United States pursuant to 42 U.S.C. §1973c. Nor have defendants and the state of Florida submitted the Voter Responsibilities section of the Election Reform Act to the United States District Court for the District of Columbia for a declaratory judgment.
The actions of defendants in proceeding to implement a voting change without Section 5 preclearance deprive plaintiffs of rights protected by 42 U.S.C. § 1973c.
WHEREFORE, plaintiffs respectfully pray that this Court:
1. Assume jurisdiction over this matter;
2. Convene a three-judge court;
3. As a three-judge court, issue a declaratory judgment that defendants have failed to comply with Section 5, and enjoin defendants from further implementation of a voting change without complying with 42 U.S.C. §1973c;
4. Grant plaintiffs costs and attorneys' fees pursuant to 42 U.S.C. §§ 1988 and 1973le; and
5. Retain jurisdiction of this case and grant plaintiffs such further relief as may be just and proper.
COUNT II
Violation of Section 5 of the Voting Rights Act
42 U.S.C. § 1973c
Fla. Stat. § 98.0977
Paragraphs 1 through 30 are incorporated by reference herein the same as though fully rewritten.
The voter list maintenance section of the Election Reform Act, Fla. Stat. § 98.0977, is on its face a modification or change in state law and is therefore a voting qualification or prerequisite to voting, or standard, practice or procedure with respect to voting, publicity for or assistance in voting that is subject to the preclearance requirements of Section 5 of the Voting Rights Act.
The voter list maintenance section of the Election Reform Act has the potential for discrimination in that it codifies a basically standardless ex-felon identification procedure, and codifies reliance on a certified mail notification procedure that places the burden for remaining on the voter rolls on the voter.
Despite the requirements of Section 5, plaintiffs are informed and believe that neither defendants nor the state of Florida has obtained preclearance for the voter list maintenance section of the Election Reform Act from the Attorney General of the United States pursuant to 42 U.S.C. §1973c. Nor have defendants and the state of Florida submitted the voter list maintenance section of the Election Reform Act to the United States District Court for the District of Columbia for a declaratory judgment.
The actions of defendants in proceeding to implement a voting change without Section 5 preclearance deprive plaintiffs of rights protected by 42 U.S.C. § 1973c.
WHEREFORE, plaintiffs respectfully pray that this Court:
1. Assume jurisdiction over this matter;
2. Convene a three-judge court;
3. As a three-judge court, issue a declaratory judgment that defendants have failed to comply with Section 5, and enjoin defendants from further implementation of a voting change without complying with 42 U.S.C. §1973c;
4. Grant plaintiffs costs and attorneys' fees pursuant to 42 U.S.C. §§ 1988 and 1973le; and
5. Retain jurisdiction of this case and grant plaintiffs such further relief as may be just and proper.
COUNT III
Violation of Section 5 of the Voting Rights Act
42 U.S.C. § 1973c
Fla. Stat. § 101.048
Paragraphs 1 through 30 are incorporated by reference herein the same as though fully rewritten.
The system of disqualifying provisional ballots established by the Election Reform Act, Fla. Stat. § 101.048, is on its face a modification or change in state law and is therefore a voting qualification or prerequisite to voting, or standard, practice or procedure with respect to voting, publicity for or assistance in voting that is subject to the preclearance requirements of Section 5 of the Voting Rights Act.
The system of disqualifying provisional ballots established by the Election Reform Act has the potential for discrimination in that it will likely result in the disqualification of a disproportionately high number of minority votes due to their higher intra-county mobility rates.
Despite the requirements of Section 5, plaintiffs are informed and believe that neither defendants nor the state of Florida has obtained preclearance for the system of disqualifying provisional ballots established by the Election Reform Act from the Attorney General of the United States pursuant to 42 U.S.C. §1973c. Nor have defendants and the state of Florida submitted the system of disqualifying provisional ballots established by the Election Reform Act to the United States District Court for the District of Columbia for a declaratory judgment.
The actions of defendants in proceeding to implement a voting change without Section 5 preclearance deprive plaintiffs of rights protected by 42 U.S.C. § 1973c.
WHEREFORE, plaintiffs respectfully pray that this Court:
1. Assume jurisdiction over this matter;
2. Convene a three-judge court;
3. As a three-judge court, issue a declaratory judgment that defendants have failed to comply with Section 5, and enjoin defendants from further implementation of a voting change without complying with 42 U.S.C. §1973c;
4. Grant plaintiffs costs and attorneys' fees pursuant to 42 U.S.C. §§ 1988 and 1973le; and
5. Retain jurisdiction of this case and grant plaintiffs such further relief as may be just and proper.
COUNT IV
Violation of the Literacy Test Bans
of the Voting Rights Act
42 U.S.C. §1973b and 42 U.S.C. §1971
Paragraphs 1 through 30 are incorporated by reference herein the same as though fully rewritten.
The Voter Responsibilities section of the Election Reform Act is on its face an unlawful test or device in violation of the Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973b(c), in that it requires, as a prerequisite for voting, that a person (1) demonstrate the ability to read, write, understand or interpret any matter, (2) demonstrate any educational achievement or his knowledge of any particular subject, (3) possess good moral character, or (4) prove his qualifications by the voucher of registered voters or members of any other class. The Voter Responsibilities section of the Election Reform Act is on its face an unlawful literacy test as a qualification for voting in violation of the Voting Rights Act of 1957, as amended, 42 U.S.C. § 1971.
The Voter Responsibilities section of the Election Reform Act has the potential for discrimination in that it is likely to deter electors, particularly racial and language minorities, from voting who have not studied the candidates and issues, are uninformed as to their precinct and its hours of operation, who do not have identification, do not know how to operate voting equipment properly or are otherwise confused regarding some aspect of the election process.
The actions of defendants in proceeding to implement a test or device to determine eligibility to vote deprive plaintiffs of rights protected by 42 U.S.C. §§ 1971 and 1973b.
WHEREFORE, plaintiffs respectfully pray that this Court:
1. Assume jurisdiction over this matter;
2. Issue a declaratory judgment that the Voter Responsibilities section of the Election Reform Act violates the Voting Rights Act, 42 U.S.C. §§ 1971, 1973b, and enjoin defendants from implementation of the Voter Responsibilities section of the Election Reform Act;
3. Grant plaintiffs costs and attorneys' fees pursuant to 42 U.S.C. §§ 1988 and 1973le; and
4. Retain jurisdiction of this case and grant plaintiffs such further relief as may be just and proper.
COUNT V
Violation of the First, Fourteenth and Fifteenth Amendments to the Constitution of the United States, 42 U.S.C. §1983
Paragraphs 1 through 30 are incorporated by reference herein the same as though fully rewritten.
The Voter Responsibilities section of the Election Reform Act on its face threatens to chill or deter individuals from exercising their lawful right to vote in that it is designed to deter electors, particularly racial and language minorities, from voting who have not studied the candidates and issues, are uninformed as to their precinct and its hours of operation, who do not have identification, do not know how to operate voting equipment properly or are otherwise confused regarding some aspect of the election process.
The actions of defendants in proceeding to implement this deterrent to the franchise deprive plaintiffs of rights protected by the first, fourteenth and fifteenth amendments to the United States Constitution and 42 U.S.C. § 1983.
WHEREFORE, plaintiffs respectfully pray that this Court:
1. Assume jurisdiction over this matter;
2. Issue a declaratory judgment that the Voter Responsibilities section of the Election Reform Act violates plaintiffs' right to vote as protected by the first, fourteenth and fifteenth amendments to the Constitution of the United States and 42 U.S.C. §1983, and enjoin defendants from implementation of the Voter Responsibilities section of the Election Reform Act;
3. Grant plaintiffs costs and attorneys' fees pursuant to 42 U.S.C. §§ 1988; and
4. Retain jurisdiction of this case and grant plaintiffs such further relief as may be just and proper.
Respectfully submitted,
The Florida Equal Voting Rights Project
JoNel Newman, Esq.
Randall C. Berg. Jr., Esq.
Peter M. Siegel, Esq.
Florida Justice Institute, Inc.
2870 First Union Financial Center
200 South Biscayne Boulevard
Miami, Florida 33131-2309
305-358-2081
305-358-0910 facsimile
Randall Marshall, Esq.
American Civil Liberties Union
of Florida Foundation, Inc.
4500 Biscayne Blvd., Suite 340
Miami, Florida 33137
305-576-2337
305-576-1106 facsimile
Charles F. Elsesser, Jr., Esq.
Florida Legal Services, Inc.
3000 Biscayne Blvd., Suite 450
Miami, FL 33137
305-573-0092
305-576-9664 facsimile
Attorneys for Plaintiffs
By: JoNel Newman, Esq.
Florida Bar No. 0112320
