But the three-judge panel stopped short of invalidating the election statute. Instead, the judges said they would uphold the new law if county election supervisors opted to authorize the maximum number of early-voting hours offered under the statute, rather than the minimum.
The decision means that election officials in five Florida counties must agree to keep early voting open for 96 hours over eight days.
The law had given election supervisors discretion to conduct early voting for 48 to 96 hours over eight days.
The ruling, announced late Thursday, comes in one of a growing number of lawsuits across the United States seeking to block implementation of new voting procedures in advance of the Nov. 6 presidential election.
Republican lawmakers in several states – including Florida – have sought to bolster their voting systems against what they perceive as a threat of election fraud.
Democrats, including President Obama’s Justice Department, have attacked many of these measures as attempts to suppress turnout among minority voters likely to vote for Democratic candidates – including Mr. Obama.
The resulting legal skirmishes are escalating into an all-out war over voting in America.
At issue in the Florida case was whether a 2011 law reducing early voting from 12 to eight days would erode minority voting clout in violation of the Voting Rights Act (VRA).
The law also left it to county election supervisors to decide how many hours each day to keep polls open. They were given the option of keeping polls open anywhere from six to 12 hours a day. That created the possibility that some counties might offer early voting for 48 hours total over eight days, while others might offer it for as many as 96 hours during the same period.
Because of a prior history of voter discrimination, five of Florida’s 67 counties are required under the VRA to seek approval in Washington before making any changes to voting procedures. The five counties are: Collier, Hardee, Hendry, Hillsborough, and Monroe.
The three-judge panel was convened in Washington to decide the issue.
Appeals court judge Merrick Garland and district judges Colleen Kollar-Kotelly and Ellen Huvelle concluded that Florida’s proposed changes to early-voting procedures would disproportionately affect minority voters because minority voters disproportionately rely on early voting to cast their ballots in Florida.
Reducing the number of days available for early voting and reducing the number of hours the polls would be open would make it harder to vote, particularly for minority voters, the judges said.
“This dramatic reduction in a form of voting disproportionately used by African-Americans would be analogous to ... closing polling places in disproportionately African-American precincts,” the court said.
“Although such action would not bar African-Americans from voting,” they said, “it would impose a sufficiently material burden to cause some reasonable minority voters not to vote.”
If election supervisors decided to keep the early polls open only six hours a day in the middle of the business day, the judges said, it would make that voting option inaccessible to minority voters who have inflexible work schedules.
“We ... conclude that Florida has not met its burden of proving that removing a third of the days and half of the hours from its benchmark early voting procedures would have a nonretrogressive effect on minority voting rights in the covered counties,” the court said.
The judges offered the state an alternative. “If Florida and the covered counties were to submit a preclearance plan that offered early voting for 12 hours per day, from 7 a.m. to 7 p.m. over an 8-day voting period ... they would likely satisfy their burden of proving that the overall effect of the early voting changes would be nonretrogressive with respect to minority voters,” the court said.
In addition to their action on early voting, the judges upheld a second Florida voting change. The new law requires that Florida residents who move from one county to another, but fail to notify their election supervisor of their changed address, must vote a provisional ballot on Election Day.
Provisional ballots are submitted to the county canvassing board to determine a voter’s eligibility. If the voter is found eligible, the ballot is counted.
Under the old law, a voter who failed to change his or her address prior to Election Day was nonetheless allowed to cast a regular ballot.
Those challenging the law said that minorities used this procedure more than other voters and that the change might undercut their right to have their vote counted.
The court found that while the change would affect minority voters slightly more than others, it was not a significant enough burden on them to violate their voting rights.
The provision was also challenged based on comments made during legislative debate last year by state Sen. Mike Bennett. Senator Bennett, who supported the change, was quoted as saying that he wanted to make it harder for people to vote, as in “Africa.”
Critics said this comment suggested a motive to suppress the black vote in Florida.
The court quoted Bennett’s comment: “You say [voting’s] inconvenient. Ever read the stories about the people in Africa, the people of the desert who literally walk [200 or] 300 miles so they can have an opportunity to do what we do? And we want to make it convenient?”
He added later: “I would want them to really want to vote as badly as I want to vote. I want the people of the state of Florida to want to vote as bad as that person in Africa who’s willing to walk 200 miles for that opportunity he’s never had before in his life.”
The court observed: “Whether or not Senator Bennett actually intended his statement to have racial overtones, it certainly can be read that way.” But the court went on to say that Bennett’s comment was the only such statement in the record and that Bennett was not a sponsor or primary proponent of the bill.
The new provision also makes it easier for voters to change their address over the telephone or Internet, the court noted.