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Will State Legislatures Ever Learn

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A federal judge yesterday blocked Florida from enforcing key provisions of a new law that has been crippling voter registration drives across the state. In his opinion, U.S. District Court Judge Robert Hinkle held that those challenging the law were likely to prevail in proving their case that Florida had violated their constitutionally protected right to help fellow citizens register to vote.

"Together speech and voting are constitutional rights of special significance; they are the rights most protective of all others... [W]hen a plaintiff loses an opportunity to register a voter, the opportunity is gone forever," Judge Hinkle wrote. But the law, as Judge Hinkle found, imposes "harsh," "impractical," and "burdensome" requirements on voter registration drives that serve "little if any purpose." For these reason, the law's many onerous provisions are plainly unconstitutional.

This is not the first time the Sunshine State and other states have run afoul of the Constitution in their efforts to tightly regulate voter registration drives. Federal courts have previously blocked similar efforts in Georgia and Ohio. But Florida, with two injunctions under its belt, holds the record. At the hearing before Judge Hinkle, the state tried to defend the law by arguing it was merely seeking an "orderly process" for voter registration. But in his opinion, the judge strongly criticized this process. He found provision of the law requiring volunteers to sign legally incorrect and intimidating sworn statements acknowledging potential felony penalties could serve "no purpose other than to discourage voluntary participation in constitutionally protected activities." Likewise, he held that requiring drives to turn in voter registration forms within 48 hours created a "virtually impossible burden," that would "discourage voter registration drives." Both of these provisions, among others, were enjoined.

Yesterday's ruling is good news for Floridians. It reaffirms that groups like the League of Women Voters of Florida, FL PIRG, Rock the Vote, and others that help community members register to vote cannot be shut down by virtue of piling on unnecessary and harsh restrictions. But Florida is not alone in its efforts to impose onerous regulations on those exercising their First Amendment rights of free speech by engaging in this staple of civic participation. Even as this session winds down, lawmakers in several states are still considering restrictive laws targeting these efforts.

Given the unconstitutional track record of these laws, legislators in other states would do well to reconsider before following in Florida's footsteps. Michigan and South Carolina are two good places to start.

A bill in the Michigan legislature imposes a mandatory training requirement on all voter registration drives. But it fails to specify, let alone guarantee, when, where, and how the training will be made available. It's reasonable for election officials to offer training or guidance to voter registration groups. However, when that training is, in essence, a hurdle to protected First Amendment activity, it is not.

Meanwhile, lawmakers in South Carolina have learned that not only do judges have reservations about these laws, so does a more important audience -- their constituents. A Florida copycat proposal initially appeared as if it would pass easily. But opponents rallied, submitting a 4,000-signature petition objecting to the bill. (Such a petition, of course, is the essence of the First Amendment.) Since then, the South Carolina bill has lost one of its sponsors and remains stalled in committee.

Not only do these laws have constitutional implications, they have civil rights ones, too. Trapping civic groups in a morass of regulations curtails their organizing strength and limits their ability to engage underrepresented populations in the democratic process -- particularly communities of color, the elderly, students, disabled persons, and new citizens. In a world where we know that minority voters are twice as likely as white voters to register through voter registration drives, this is no small concern. Indeed, the Department of Justice has said Florida's restrictions on voter registration efforts are inconsistent with federal law protecting minority voters.

Everyone agrees that states must administer fair and effective systems that work for voters and election officials. But that imperative does not justify pushing community-based voter registration groups out of the public square. State lawmakers must be mindful to carefully tailor their voter registration laws so they do not run roughshod over the Constitution or federal civil rights law. And they must be sure not to silence civic-minded volunteers who encourage democratic participation. In the words of Judge Hinkle, "allowing responsible organizations to conduct voter-registration drives -- thus making it easier for citizens to register and vote -- promotes democracy."

Diana Kasdan serves as Counsel in the Democracy Program at the Brennan Center for Justice at NYU School of Law.

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