Injunction in Florida Voter Registration Case Speaks to Clarity in Election Legislation

[Image courtesy of thecasiodiaries]

On May 31, U.S. District Judge Robert Hinkle issued a preliminary injunction in the case of League of Women Voters of Florida et al v. Browning et al, a case challenging Florida’s new voter registration law. In particular, the League and other plaintiffs were concerned about the requirement that voter registration groups must submit applications within 48 hours of the voter’s completion of the form – or face the prospect of fines. The judge’s order halts enforcement of the law (and its supporting rule) pending a full trial on the merits.

Judge Hinkle’s order recognizes the interests of the state in enacting the law:

The state has a substantial interest in seeing that voter-registration applications are promptly turned in to an appropriate voter-registration office. Applications that are not promptly turned in may be lost or forgotten or otherwise mishandled. Just as a prudent law-enforcement officer promptly delivers evidence to the evidence room, a prudent voter-registration organization promptly delivers voter-registration applications to the voter-registration office. And applicationsthat are held and delivered to a voter-registration office en masse, especially near a voter-registration deadline, impose an unnecessary burden on voter-registration officials. The state’s interests are easily sufficient to uphold a requirement for reasonably prompt delivery of applications. (pp.7-8)

At the same time, however, the order also notes the importance of registration drives to groups and the voters they serve:

The plaintiffs wish to speak, encouraging others to register to vote, and some of the challenged provisions – for example, the requirement to disclose in advance the identity of an employee or volunteer who will do nothing more than speak – regulate pure speech. This is core First Amendment activity. Further, the plaintiffs wish to speak and act collectively with others, implicating the First Amendment right of association. More importantly, the plaintiffs wish to assist others with the process of registering and thus, in due course, voting. Votingis a right protected by several constitutional provisions; state election codes thus are subject to constitutional scrutiny. Together speech and voting are constitutional rights of special significance; they are the rights most protective of all others. (p.4)

Merits of the issue aside, however, Judge Hinkle appears to reserve his greatest scrutiny for the language of the law itself, which he finds badly wanting:

This statute and this rule are not well crafted. To the contrary, they are virtually unintelligible, close to the point, if not past the point, at which a statute – especially one that regulates First Amendment rights and is accompanied by substantial penalties – becomes void for vagueness. (pp. 8-9)

In particular, Judge Hinkle finds that

• + the 48-hour requirement is confusing with little allowance for the substantial possibility that voters or groups may want to mail their applications;
• + language requiring groups to identify “registration agents” is vague because it is unclear which individuals should be so identified;
• + the required sworn statement regarding penalties for submitting false information that registered agents must sign is incorrect with regard to state law.

Judge Hinkle also rejects a number of plaintiffs’ complaints, including the requirement that groups identify themselves on applications, to make their required filings in electronic form, and the circumstances in which the State may waive penalties for violations of the Act.

There are numerous substantive issues involved in the case – but a useful (if not the primary) takeaway is the overwhelming importance of clarity in election laws. Courts are often loathe to step on the authority of legislatures to make laws – but in those cases where such authority is not enforced clearly, judges can and will wield the gavel.