Democratic Executive Committee of Florida v. Laurel M. Lee ( 2019 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-14758
________________________
D.C. Docket No. 4:18-cv-00520-MW-MJF
DEMOCRATIC EXECUTIVE COMMITTEE OF FLORIDA,
BILL NELSON FOR US SENATE,
Plaintiffs-Appellees,
versus
LAUREL M. LEE, 1 in her official capacity as Florida Secretary of State,
ATTORNEY GENERAL OF THE STATE OF FLORIDA,
Defendants-Appellants,
NATIONAL REPUBLICAN SENATORIAL COMMITTEE,
Intervenor Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Northern District of Florida
________________________
(February 15, 2019)
1
As Florida’s current Secretary of State, Laurel M. Lee has been automatically substituted
for Florida’s prior Secretary of State as a party. See Fed. R. App. P. 43(c)(2).
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Before TJOFLAT, MARTIN, and ROSENBAUM, Circuit Judges.
ROSENBAUM, Circuit Judge:
Voting is the beating heart of democracy. It is a
“fundamental political right, because [it is] preservative of
all rights.” Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886).
“It is beyond cavil that ‘voting is of the most fundamental
significance under our constitutional structure.’” Burdick
v. Takushi, 504 U.S. 428, 433 (1992) (quoting Ill. Bd. of
Elections v. Socialist Workers Party, 440 U.S. 173, 184
(1979)).
League of Women Voters of Fla., Inc. v. Detzner, 314 F. Supp. 3d 1205, 1215 (N.D.
Fla. 2018). We can’t say it any better than that. But, of course, voting alone is not
enough to keep democracy’s heart beating. Legitimately cast votes must then be
counted.
This case requires us to consider Florida’s practice of counting vote-by-mail
ballots only after verifying that the voter’s signature provided with the ballot
matches the voter’s signature in the state’s records. Although this practice is
designed to prevent fraud, signature mismatches occur for a variety of reasons—
including purely innocent ones. And Florida’s lack of any standards or formal
training requirements for those who assess the signatures as mismatched can also
contribute to false positives for signature mismatches. So the fact that a Florida
election official may decide a voter’s signature provided with her ballot does not
match her signature in the state’s records does not necessarily mean her vote is
fraudulent and should not be counted.
2
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But Florida’s election code allows for just that. Because of the way Florida
has scheduled its election process, some voters who submit a vote-by-mail ballot by
the stated deadline are not notified about a signature mismatch until after it is too
late to demonstrate their eligibility to vote. As a result, their votes do not count, and
they are disenfranchised.
Upon Plaintiffs-Appellees the Democratic Executive Committee of Florida
(“DECF”) and Bill Nelson for U.S. Senate’s (the “Nelson Campaign”) motion, the
district court here entered an order providing these voters with a 48-hour period to
cure their signature mismatch, so their votes could be counted. Defendants-
Appellants the National Republican Senatorial Committee (“NRSC”), the Florida
Secretary of State2 (“Secretary”), and the Florida Attorney General (“Attorney
General”) appealed the district court’s order, and the NRSC sought an emergency
stay of the order.
2
As we have noted, Laurel M. Lee was substituted as a defendant in this case when she
recently became Florida’s Secretary of State. Florida’s prior secretary of state was a man. For
ease of reference and clarity and since Florida’s current Secretary of State is a woman, we use the
feminine gender throughout this opinion to refer to Florida’s Secretary of State, regardless of
whether a man or a woman held the position at the time of any specific event discussed in this
opinion.
3
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In this opinion, we address only the NRSC’s motion for emergency stay.
Because the NRSC has not satisfied the requirements for the issuance of a stay in
this case, we deny its motion.3
I. Background4
Florida allows eligible voters to cast their votes by mailing in their ballots
rather than voting in person on Election Day. See Fla. Stat. § 101.62 (2016). This
option can be especially useful to those temporarily residing away from home, such
as college students, and those with physical impairments that make it difficult to get
around.
To protect against fraud, Florida requires those who choose to vote by mail to
sign the voter’s certificate on the back of the envelope on which they mail their
ballots. Fla. Stat. § 101.65 (2016). Voting officials later compare the signature on
the certificate with the signature on file for that voter. Fla. Stat. § 101.68 (2017). If
the reviewing official believes the signatures do not match, the ballot is rejected. Id.For a period, Florida did not afford voters whose ballots were rejected due to
signature mismatch the opportunity to cure their votes by proving their identities.
See Fla. Democratic Party v. Detzner, No. 4:16CV607-MW/CAS, 2016 WL
3Since the NRSC filed its appeal as an emergency motion for stay, we previously issued
our order denying that motion over one dissent. We indicated in that order that written opinions
explaining the basis for our decision would follow. This opinion sets forth our reasoning.
4
The facts provided come from the record evidence unless otherwise indicated.
4
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6090943, at *2 (N.D. Fla. Oct. 16, 2016). But the signature-match scheme calls on
officials who are not required to receive formal training to judge the similarities of
signatures, and everyday factors “such as body position, writing surface, and noise”
all affect one’s signature. Id. at *2, 7. So the signature-match scheme can result in
the rejection of an eligible voter’s ballot, through no fault of the voter. Id. at *8.
The shortcomings of the signature-match scheme made it nearly certain to
incorrectly reject the ballots of some legitimate voters. As a result, a district court
in Florida (the same one that ruled in the case now under review) held that the
scheme would unconstitutionally disenfranchise legitimate voters and ordered the
state to provide a way for those voters who had their ballots rejected for signature
mismatch to prove their identities and have their votes count. Id. at *9.
In response to the district court’s decision, the Florida legislature amended the
election code to allow voters to cure improperly rejected ballots. After that
amendment, a voter, upon learning that her vote had been rejected for signature-
mismatch, had until 5 p.m. one day before the election to verify her identity by
submitting a cure affidavit and an accepted form of identification. Fla. Stat. §
101.68(4). Working in tandem, the cure provision and the original signature-match
requirement were supposed to guard against both vote-by-mail fraud and arbitrary
disenfranchisement of legitimate voters.
5
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Florida also allows prospective voters who cannot prove their eligibility to
vote to cast provisional ballots. Fla. Stat. § 101.048(1) (2008). Like vote-by-mail
ballots, provisional ones are also protected by the signature-match requirement: if
the signature on the provisional ballot voter’s certificate and affirmation does not
match the signature on the voter’s registration, the ballot will not count. Id. §
101.048(2)(b)1. But unlike for vote-by-mail ballots, Florida does not provide a way
for provisional voters whose ballots were rejected for signature mismatch to cure
their ballots.5 Democratic Exec. Comm. of Fla. v. Detzner, 347 F. Supp. 3d 1017,
No. 4:18-CV-520-MW/MJF, 2018 WL 5986766, at *3 (N.D. Fla. 2018).
Plaintiffs DECF and the Nelson Campaign challenged the constitutionality of
the signature-match scheme as it relates to vote-by-mail and provisional voters.
They asserted that the scheme continues to disenfranchise eligible voters on an
arbitrary basis, in violation of the First and Fourteenth Amendments. As relevant
here, Plaintiffs asked the district court for an emergency injunction requiring
5
Before the district court, the Attorney General posited that Fla. Stat. § 101.048(1)
empowers a provisional voter to cure her mismatched signature by 5 p.m. on the second day
following the election. However, § 101.048(1) merely allows a provisional voter to present written
evidence supporting her eligibility to vote. That evidence is then considered by the county
canvassing board when determining whether the person is entitled to vote. Id. § 101.048(2)(a).
Only after determining that the person is entitled to vote does the canvassing board compare
signatures. Id. § 101.048(2)(b). The section provides no information about giving notice of
signature mismatch in time to implement a cure, let alone information on how to cure. On its face,
§ 101.048(1) cannot fairly be said to provide provisional voters an opportunity to cure.
6
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officials to stop rejecting ballots based on signature mismatch and to count every
vote-by-mail and provisional vote that had been rejected for that reason.
The district court agreed that the signature-match protection provided by
Florida’s amended election laws still blocked too many eligible voters. But rather
than granting plaintiffs’ request to count every vote-by-mail and provisional ballot
that had been rejected for signature mismatch, the district court issued a much
narrower preliminary injunction: under it, only the ballots of those voters who were
belatedly notified of signature mismatch could be counted, and they would be
counted only after those voters timely verified their identities by following the
normal cure procedures. See Democratic Exec. Comm., 2018 WL 5986766, at *9.
Defendants the NRSC, the Secretary, and the Attorney General appealed. The
NRSC also sought an emergency stay of the district court’s preliminary injunction.
II. Legal Standard
A stay of a preliminary injunction requires the exercise of our judicial
discretion, and the party requesting the stay must demonstrate that the circumstances
justify the exercise of that discretion. In considering a motion for stay, we account
for the following factors, which substantially overlap with the factors governing
preliminary injunctions: (1) whether the stay applicant has made a strong showing
that it is likely to succeed on the merits, (2) whether the applicant will be irreparably
injured absent a stay, (3) whether issuance of the stay will substantially injure the
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other parties interested in the proceeding, and (4) where the public interest lies. Nken
v. Holder, 556 U.S. 418, 434 (2009). 6 The first two factors are the most critical. Id.
at 434-35. To satisfy its burden as to those factors, the party seeking the stay must
show more than the mere possibility of success on the merits or of irreparable injury.
Id.In considering whether to stay a preliminary injunction, we apply the usual
standards of review governing our review of the merits of the preliminary injunction.
See U.S. Student Ass’n Found. v. Land, 546 F.3d 373, 380 (6th Cir. 2008). So we
examine the district court’s grant of the preliminary injunction for abuse of
discretion, reviewing de novo any underlying legal conclusions and for clear error
any findings of fact. See id.; Transcon. Gas Pipe Line Co., LLC v. 6.04 Acres, More
or Less, Over Parcel(s) of Land of Approximately 1.21 Acres, More or Less, Situated
in Land Lot 1049, 910 F.3d 1130, 1163 (11th Cir. 2018).
After careful consideration, we deny the NRSC’s motion to stay the
preliminary injunction.
III. The Nken factors militate against a stay of the preliminary injunction.
6
The preliminary-injunction factors a district court considers include the following: (1) the
likelihood of success on the merits, (2) whether irreparable injury will occur in the absence of the
preliminary injunction, (3) the balance of burdens on the parties, and (4) the public interest. See
Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000).
8
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Before jumping into our application of the Nken factors, we begin by noting
that Plaintiffs properly sued the Secretary in her official capacity when they asserted
that Florida’s signature-match regime imposed an undue burden on the right to vote.
“A state official is subject to suit in his official capacity when his office imbues him
with the responsibility to enforce the law or laws at issue in the suit.” Grizzle v.
Kemp, 634 F.3d 1314, 1319 (11th Cir. 2011). Here, of course, the signature-
matching provisions of the election laws—including the provisions that enabled
belated notice of mismatch to voters—were at issue. Because the Secretary is the
state’s chief election officer with the authority to relieve the burden on Plaintiffs’
right to vote, she was appropriately sued for prospective injunctive relief. Fla. Stat.
§ 97.012 (2016); Fla. Democratic Party, 2016 WL 6090943, at *4-5; see also Ex
parte Young, 209 U.S. 123 (1908); Grizzle, 634 F.3d at 1319.
With that established, we now apply the Nken factors to determine whether
the NRSC is entitled to a stay of the district court’s preliminary injunction.
A. The first Nken factor disfavors a stay because the NRSC has not made
a strong showing that it is likely to succeed on appeal.
We begin with whether the NRSC has demonstrated a strong likelihood of
success on the merits of appeal. Here, the NRSC has not made a strong showing
that it is likely to succeed on appeal, either on the merits of the constitutional claim
or on its laches argument.
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i. The NRSC has not made a strong showing that the burden
imposed on the right to vote is constitutional as judged by the
Anderson-Burdick balancing test.
Plaintiffs DECF and the Nelson Campaign challenged the constitutionality of
the signature-match scheme as it relates to vote-by-mail and provisional voters, on
the basis that the scheme violates the prohibition against undue burdens on the right
to vote, as embodied in the First and Fourteenth Amendments.7 We evaluate the
constitutionality of a challenged election law by applying the Anderson-Burdick test.
Anderson v. Celebrezze, 460 U.S. 780, 789 (1983); Burdick v. Takushi, 504 U.S.
428, 434 (1992). That test requires us to weigh the character and magnitude of the
asserted First and Fourteenth Amendment injury against the state’s proffered
justifications for the burdens imposed by the rule, taking into consideration the
extent to which those justifications require the burden to plaintiffs’ rights. See
Anderson, 460 U.S. at 789; Burdick, 504 U.S. at 434.
A law that severely burdens the right to vote must be narrowly drawn to serve
a compelling state interest. Burdick, 504 U.S. at 434. And even when a law imposes
only a slight burden on the right to vote, relevant and legitimate interests of sufficient
weight still must justify that burden. Common Cause/Ga. v. Billups, 554 F.3d 1340,
1352 (11th Cir. 2009). The more a challenged law burdens the right to vote, the
7
In the district court, Plaintiffs also alleged that the scheme violates the Fourteenth
Amendment’s Equal Protection Clause, but the district court did not enter relief on this theory, and
Plaintiffs did not cross-appeal on that basis. Therefore, we do not explore this particular theory of
Plaintiffs’.
10
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stricter the scrutiny to which we subject that law. Stein v. Ala. Sec. of State, 774
F.3d 689, 694 (11th Cir. 2014).
a. Burden Imposed by the Signature-match Scheme on the
Right to Vote
We begin our analysis by identifying the burden that Florida’s signature-
match scheme imposes on the right to vote. Here, the burden falls on vote-by-mail
and provisional voters’ fundamental right to vote. The Supreme Court has long
recognized that burdens on voters implicate fundamental First and Fourteenth
Amendment rights. See Anderson, 460 U.S. at 787 n.7. Specifically, voters have a
First Amendment right “to associate for the advancement of political beliefs”—a
freedom likewise protected by the Fourteenth Amendment “from infringement by
the states.” Williams v. Rhodes, 393 U.S. 23, 30-31 (1968); see also Swanson v.
Worley, 490 F.3d 394, 902 (11th Cir. 2007). 8 They also enjoy a Fourteenth
Amendment right “to participate equally in the electoral process.” See Swanson, 490
F.3d at 902.
To establish an undue burden on the right to vote under the Anderson-Burdick
test, Plaintiffs need not demonstrate discriminatory intent behind the signature-
match scheme or the notice provisions because we are considering the
8
Swanson discussed these rights in relation to a candidate, but “the rights of voters and the
rights of candidates do not lend themselves to neat separation.” Bullock v. Carter, 405 U.S. 134,
143 (1972).
11
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constitutionality of a generalized burden on the fundamental right to vote, for which
we apply the Anderson-Burdick balancing test instead of a traditional equal-
protection inquiry. 9 See, e.g., Anderson, 460 U.S. at 806 (showing that, even without
proof of discriminatory intent, a state’s early filing deadline was still an
impermissible burden since it was insufficiently justified by legitimate state
interests); Obama for America v. Husted, 697 F.3d 423, 429-30 (6th Cir. 2012)
(rejecting calls to apply “a straightforward equal protection analysis” and explaining
that “when a state regulation is found to treat voters differently in a way that burdens
the fundamental right to vote, the Anderson-Burdick standard applies”).
Here, Florida’s signature-match scheme subjects vote-by-mail and
provisional electors to the risk of disenfranchisement in two ways. First, problems
occur because of the way in which Florida implements the scheme. And second,
deficiencies arise because of the very nature of matching signatures.
With respect to Florida’s execution of the signature-match requirement,
Florida has not enacted uniform standards for matching signatures, nor has it created
9
Under Anderson-Burdick, it is not necessary for a plaintiff to show discriminatory intent
to make out a claim that the state has unconstitutionally burdened the right to vote. To be sure, a
traditional Equal Protection Clause claim is cognizable in the voting context if the plaintiff alleges
that discriminatory animus motivated the legislature to enact a voting law. Vill. of Arlington
Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977) (“Proof of racially discriminatory
intent or purpose is required to show a violation of the Equal Protection Clause.”). And Plaintiffs’
complaint contained allegations that could be construed as a traditional Equal Protection Clause
challenge. But that is not what the district court focused on in granting the preliminary injunction
under review. So that issue is not before us.
12
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qualifications or training for those who engage in the job. Indeed, election officials
in Florida tasked with comparing signatures on ballots to those on file need not
undergo formal training in handwriting analysis or receive formal guidelines for how
to compare signatures. Democratic Exec. Comm., 2018 WL 5986766, at *2. And
Florida allows each county to apply its own standards and procedures for executing
the signature-match requirement, virtually guaranteeing a crazy quilt of enforcement
of the requirement from county to county. Id. at *7 & n.5. While some counties
may make Herculean efforts to ensure that legitimate vote-by-mail or provisional
votes, or both, are counted, other counties may do very little to ensure even and
accurate application of the signature-match requirements. See id. Florida’s scheme
prohibits neither.
And even if election officials uniformly and expertly judged signatures,
rightful ballots still would be rejected just because of the inherent nature of
signatures. Citing a declaration by Dr. Linton A. Mohammed, a certified forensic
document examiner, the DECF and the Nelson Campaign presented evidence that
innocent factors like the writer’s body position, writing surface, type of pen, and
mental and physical states, as well as the surrounding noise, can alter a person’s
signature and produce mismatches. Consequently, legitimate vote-by-mail and
provisional voters, through factors out of their control, are burdened with the risk
that their ballots will incorrectly be rejected for signature mismatch.
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Recognizing this problem, in a 2016 case before the same district court that
entered the preliminary injunction now under review, the district court tried to
remedy the deficiencies in Florida’s signature-match scheme by mandating that
those with mismatched-signature ballots be given a chance to cure. Fla. Democratic
Party, 2016 WL 6090943, at *9. In response to the court’s order, the Florida
legislature codified a cure provision into the election code. But as it turned out, the
changes did not adequately address the scheme’s shortcomings.
Heading into the 2018 election, Florida law provided that the deadline for the
supervisor of elections to receive vote-by-mail ballots was 7 p.m. on the day of the
election. Fla. Stat. § 101.6103(2) (2008). Even though the opportunity to cure
signature mismatch should have been part and parcel of any constitutional use of the
signature-match protection after the district court’s 2016 opinion, Florida required a
cure to be submitted by 5 p.m. on the day before the election—meaning that the
deadline to cure a rejected ballot came before the deadline for the supervisor to
receive the ballot in the first place. Fla. Stat. § 101.68(4)(a). And even more
problematically, the law did not require canvassing boards to even begin the
canvassing of vote-by-mail ballots and check for signature match before noon on the
day after the election. 10 Id. § 101.68(2)(a) (“The county canvassing board may begin
10
The Dissent takes issue with this legal conclusion and instead asserts that Florida law
requires the county supervisor of election to (1) immediately “compare the signature on the voter’s
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the canvassing of vote-by-mail ballots at 7 a.m. on the 15th day before the election,
but not later than noon on the day following the election.”). So voters whose
signatures were deemed a mismatch might not learn that their vote would not be
counted until it was too late to do anything about it.
certificate with the signature on the voter’s registration entry,” and (2) “immediately notify the
voter” if the supervisor finds the signatures do not match. Dissent at 65. But the Dissent’s
interpretation of the governing statute is not consistent with either what that statute actually
requires or what, in practice, occurs in Florida. To reach its mistaken conclusion, the Dissent relies
on § 101.68(1) and (4)(a). Dissent at 65 & n.32. In relevant part, § 101.68(1) provides, “The
supervisor . . . shall receive the voted ballot, at which time the supervisor shall compare the
signature of the elector on the voter’s certificate with the signature of the elector in the registration
books or the precinct register to determine whether the elector is duly registered in the county and
may record on the elector’s registration certificate that the elector has voted. . . . Except as
provided in subsection (4), after a vote-by-mail ballot is received by the supervisor, the ballot is
deemed to have been cast . . . .” (emphasis added). By its language, this provision requires the
supervisor to compare signatures and record all votes the supervisor deems to be legitimately cast.
As for votes the supervisor cannot certify as validly cast, the provision directs us to § 101.68(4).
That provision states, “The supervisor shall, on behalf of the county canvassing board,
immediately notify an elector who has returned a vote-by-mail ballot . . . that does not match the
elector’s signature in the registration books or precinct register.” Id. (emphasis added). By its
terms, this provision requires the supervisor to notify voters whose signatures do not match—but
only on behalf of the county canvassing board, not on the supervisor’s own. A third provision not
cited by the Dissent also comes into play: § 101.68(2)(c)1. That provision directs, “The
canvassing board must, if the supervisor has not already done so, compare the signature of the
elector on the voter’s certificate or on the vote-by-mail ballot cure affidavit as provided in
subsection (4) with the signature of the elector in the registration books or the precinct register . .
. to determine the legality of that vote-by-mail ballot.” This provision tasks the canvassing board
with performing the signature-match function for ballots the supervisor, in exercising her authority
under § 101.68(1), cannot deem valid ballots. And that is why § 101.68(4) requires the supervisor,
on behalf of the canvassing board, to notify voters whose ballots have been rejected for signature
mismatch. Indeed, evidence admitted during the hearing in this case bears this out. Leon County’s
supervisor of elections testified that while members of his staff immediately make an initial
comparison of signatures and approve some ballots, any ballot with a signature that the staff cannot
validate is referred to the canvassing board for review—so it is the canvassing board that rejects
the ballots. Of course, nothing stops a county from going above and beyond and notifying voters
of potential mismatch as soon as the supervisor’s staff flags a ballot for the canvassing board’s
review. But the relevant code provision requires only that the supervisor notify voters when an
actual mismatch is found, and the evidence shows that only the canvassing board may make that
determination.
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That is exactly what happened to former U.S. Congressman Patrick Murphy.
A registered voter, Murphy explained in a sworn declaration to the district court that
he voted by mail using the same signature that he had used in the 2018 primary
election in Florida. Although Murphy had no issues with his signature before,
Murphy’s ballot was rejected for mismatched signature on Election Day. Because
the cure deadline had already passed, Murphy could do nothing to have his ballot
counted. And Murphy was not alone: the record contains other sworn declarations
with stories of eligible voters who were similarly disenfranchised.
On these facts, we have no trouble finding that Florida’s scheme imposes at
least a serious burden on the right to vote. 11 See League of Women Voters of N.
Carolina v. North Carolina, 769 F.3d 224, 244 (4th Cir. 2014) (commenting that it
is a “basic truth that even one disenfranchised voter—let alone several thousand—
is too many”). This burden can be constitutional only if justified by legitimate state
interests of sufficient weight.
b. The State’s Asserted Justifications for the Burden
We therefore turn to the state’s interests. In considering the state’s interests,
we account for the points the NRSC raises here as well as those raised by the
Secretary and Attorney General before the district court. The identified interests fall
11
We need not and do not determine whether the burden imposed is anything more than
serious, since on this record, as we explain, the state’s interests do not sufficiently justify the
burden imposed.
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into three general categories: preventing fraud; promoting the orderly, efficient, and
timely administration of the election; and ensuring fairness and public confidence in
the legitimacy of the election.
We begin with Florida’s interest in combatting voter fraud and making certain
that only legitimate votes are counted. Without a doubt, Florida has a legitimate and
strong interest in preventing voter fraud. Common Cause, 554 F.3d at 1353-54. But
that interest is not mutually exclusive of vote-by-mail and provisional voters’
interest in not being disenfranchised through no fault of their own.
And that’s the problem for Defendants. We must take into consideration not
only the “legitimacy and strength” of the state’s asserted interest, but also “the extent
to which those interests make it necessary to burden” voting rights. Anderson, 460
U.S. at 789 (emphasis added). Here, Defendants offer no satisfying explanation for
why Florida cannot have both a robust signature-match protection and a way to allow
every eligible vote-by-mail and provisional voter whose ballot is mistakenly rejected
an opportunity to verify their identities and have their votes count. Indeed, if a voter
is able to cure the signature-match problem, no fraud protected against by the
signature-match provision even arguably occurs. So even without requiring the state
to engage in narrow tailoring—that is, saying nothing about Florida’s lack of
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uniform training or standards from county to county12—Defendants have identified
no fraud-prevention interest that justifies depriving legitimate vote-by-mail and
provisional voters of the ability to cure the signature mismatch, thereby
disenfranchising them.
Next, we turn to Florida’s interest in the orderly, efficient, and quick
administration of an election. Again, we agree that Florida has an important interest
in structuring and regulating its elections to avoid chaos and to promote the smooth
administration of its elections. See Burdick, 504 U.S. at 433. But that interest does
not warrant the complained-of burden on voters because Defendants have not
demonstrated that permitting voters who were belatedly notified of signature
mismatch to cure their ballots would inordinately disrupt the smooth facilitation of
the election.
As the district court noted, only about 4,000 ballots were rejected for signature
mismatch at the time of its order—less than 5 hundredths of a percent of the more
than 9 million total ballots cast in Florida for the 2016 general election. Democratic
Exec. Comm., 2018 WL 5986766, at *9; Fla. Dep’t of State, Div. of Elections, Voting
Activity by Ballot Type for 2016 General Election (last updated Mar. 24, 2017),
https://dos.myflorida.com/media/697842/2016-ge-summaries-ballots-by-type-
12
The availability of an effective cure process should incidentally also have the salutary
effect of relieving the burden inflicted on voters by the unevenness of signature-match standards
and training from county to county.
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activity.pdf. Of those 4,000 ballots, not all were cast by eligible voters. And even
for those that were, only a portion of the eligible voters casting those votes were
belatedly notified. Even the NRSC has described this subset of injured voters as
“tiny.” So it is difficult to see how—and Defendants have not shown how—a state
equipped to deal with more than 9 million voters would be unduly burdened by
providing the fraction of a percent of injured voters an opportunity to cure signature
mismatch and have their rightful ballots counted in accordance with the district
court’s preliminary injunction.
Nor, as Defendants suggested in the district court, does Lemons v. Bradbury,
538 F.3d 1098 (9th Cir. 2008), support a different conclusion. In Lemons, the Ninth
Circuit worried about the administrative difficulties associated with suddenly
requiring state officials to provide notice and a chance to cure to thousands of
petition signers when no such requirement previously existed. See id. at 1104-05.
But here, Florida already had a cure mechanism for those with mismatched
signatures. See Fla. Stat. § 101.68(4)(a).
And contrary to Defendants’ assertions, it is not too difficult to interpret and
apply the district court’s order. Mindful that time was of the essence as the counting
of votes was already underway, the district court allowed for two days from the time
of its order for certain injured voters to cure their ballots, demonstrating that a
reasonable cure period provides 48 hours’ notice of the defect before a voter’s
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opportunity to cure expires. Democratic Exec. Comm., 2018 WL 5986766, at *1
n.1, *9. Thus, anyone who received notice later than would allow them 48 hours to
cure was belatedly notified. And consistent with our long practice of relying on the
threat of penalty of perjury to guard against dishonesty and fraud, see United States
v. Yates, 438 F.3d 1307, 1318 (11th Cir. 2006), the district court’s order allows a
voter to attest that she was belatedly notified by declaring under penalty of perjury
that she did not timely receive actual notice of signature mismatch. 13
Finally, we consider Florida’s interest in fundamental fairness and protecting
public confidence in the legitimacy of the election. Once again, we fully agree that
Florida enjoys legitimate and strong interests in these things. But in this case, these
considerations actually swing decisively in favor of the DECF and the Nelson
Campaign.
On fundamental fairness, Defendants and the Dissent complain that the
district court has unfairly upset settled expectations by changing the rules mid-
contest. Dissent at 62, 72. We are not convinced.
First, we note that the record here reflects that, in violation of the language of
the governing provisions, one county counted previously rejected ballots for which
13
The Dissent faults the district court for not fashioning a more perfect preliminary
injunction. Dissent at 73-76. But given the circumstances and the district court’s broad discretion
in shaping an injunction, and as we discuss infra at 30-32, the district court’s order falls within the
realm of reasonableness. Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080, 2087 (2017)
(discussing district courts’ wide discretion in molding a preliminary injunction).
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it received cures after the deadline, since the Post Office had mistakenly held onto
cure submissions beyond the deadline. We certainly do not criticize that county for
trying to ensure the affected voters were not disenfranchised through no fault of their
own. And to the extent that that county’s actions can be viewed as a technical
“wrong” under Florida’s election code, we do not ascribe to the idea that two wrongs
make a right.
But the fact remains that Florida already applied changed rules mid-election
to count vote-by-mail votes that did not satisfy Florida’s written rules. So if a
general expectation existed at some point that the rules would be enforced so as not
to count even the votes of vote-by-mail voters whose ballots had been rejected
through no fault of their own, as a matter of fact, Florida’s own actions decimated
that anticipation and effectively created a new expectation: that opportunity would
be created for the counting of legitimately cast ballots that were not counted through
no fault of the voter.
Second, to the extent that an unsettled expectation and unfairness may have
existed at the time the district court considered Plaintiffs’ motion for preliminary
injunction, it befell Plaintiffs. A realistic assessment of the facts here indicates that
vote-by-mail voters who followed the ostensible deadline for their ballots only to
discover that their votes would not be counted and that they would have no recourse
were the ones to experience a clash with their expectations and fundamental fairness.
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See Bullock v. Carter, 405 U.S. 134, 143 (1972) (explaining that “the rights of voters
and the rights of candidates do not lend themselves to neat separation” and that “[i]n
approaching candidate restrictions, it is essential to examine in a realistic light the
extent and nature of their impact on voters”).
To understand why, we briefly visit the recent history of the cure provision in
Florida. In 2016, as we have noted, the same district court that issued the preliminary
injunction under review here examined Florida’s signature-match scheme and tried
to address the problem afflicting the subset of voters whose signatures were found
not to have matched those on file but who were provided no opportunity to remedy
that problem. Under the 2016 scheme, a vote-by-mail voter had no opportunity to
cure under the code if her ballot was rejected for signature mismatch. Fla.
Democratic Party, 2016 WL 6090943, at *1. The district court explained then that
the scheme existing at that time “categorically disenfranchised thousands of voters
arguably for no reason other than they have poor handwriting or their handwriting
has changed over time.” Id. at *7. These otherwise eligible voters, the district court
said, were “robbed of one of our most basic and cherished liberties; namely, the right
to vote and have that vote counted.” Id. at *8. To remedy the constitutional infirmity
of the previous signature-match scheme, the district court ordered that those with
mismatched-signature ballots be given a chance to cure. Id. at *9. Shortly after the
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district court issued its order, Florida amended its election code to add a cure
provision.
Against this backdrop, a fair expectation going into the 2018 election was that
vote-by-mail voters would no longer be subjected to a situation where they would
be deprived of their right to vote by not having an opportunity to cure legitimately
cast ballots rejected for signature mismatch. But the code’s remedy to make that
expectation a reality turned out, in practice, to be illusory in some instances.
As we have noted, Florida’s stated deadline for ensuring that the Secretary
received vote-by-mail ballots was later than the deadline to cure. And more
significantly, canvassing boards were not required to start canvassing vote-by-mail
ballots until a day after the election—two days after the cure deadline. To make sure
her ballot was counted, then, a voter had to know that the published 7 p.m. receipt
deadline did not tell the whole story. She had to anticipate that her ballot would be
rejected for signature mismatch and take affirmative steps like submitting a ballot
well in advance of the published deadline—which still would not guarantee that she
would be notified of any signature mismatch until it was too late to do anything to
remedy the problem. Not only is this unrealistic and unreasonable, but as the voters’
declarations in this case show, it renders the opportunity to cure illusory in some
circumstances. In so doing, it defeats the purpose of requiring Florida to add a cure
provision as expressed in the district court’s 2016 order.
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For these reasons, we respectfully reject Defendants’ and the Dissent’s
arguments that the preliminary injunction effected an unfair change to the “rules”
and that voters whose votes were not counted for signature mismatch necessarily
have only themselves to blame. Dissent at 62, 68. It is one thing to fault a voter if
she fails to follow instructions about how to execute an affidavit to make her vote
count, see Roe v. Alabama, 43 F.3d 574, 580-81 (11th Cir. 1995), or if she
inexcusably fails to enroll in a political party by a stated deadline, Rosario v.
Rockefeller, 410 U.S. 752, 757-58 (1973). But it is quite another to blame a voter
when she may have done nothing wrong and instead may have simply had the bad
luck to have had her ballot reviewed by a particularly strict (and not formally trained)
judge of signatures, and then to not have been notified of the problem until it was
too late to do anything about it.
For these same reasons, we disagree with the Dissent that the district court
improperly (1) enfranchised those who did not follow the rules, (2) disenfranchised
those who would have voted or cured if not for the rules, and (3) diluted the votes of
those who properly voted according to the rules. Dissent at 72-73.
First, to the extent the district court enfranchised people, it was those vote-by-
mail voters who reasonably expected to be afforded a cure if their ballots were
rejected for mismatched signature. Second, even assuming people exist who would
have voted but did not because of the defective cure provision, that number is
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nominal at best. Even Bad Luck Schleprock 14 would not have been likely to
anticipate that his ballot might be rejected for signature mismatch and that he might
not be notified about this problem in time to do anything to correct it, and then decide
that for this reason, he would not submit a ballot in the first place. Finally—even
setting aside the fact that Florida already acted on its own to count votes that did not
strictly comply with the rules—the existing counted votes were artificially over-
weighted because the previous vote pool excluded the votes of those who followed
the vote-by-mail rules yet whose votes were excluded through no fault of their own.
So allowing these voters an opportunity to have their votes counted did not
impermissibly dilute the votes of those who followed the rules.
Defendants and the Dissent fret that allowing this small group of affected
voters an opportunity to demonstrate their eligibility to vote undermines the public’s
faith in elections. Dissent at 73. But we respectfully disagree. In our view, doubling
down on the disenfranchisement of vote-by-mail voters who complied with Florida’s
published deadline is not the way to promote faith in elections.
c. The Weighing of the Burden on the Right to Vote Against
the State’s Justifications
14
Bad Luck Schleprock was a character in the 1970s Hanna-Barbera television series The
Pebbles and Bamm-Bamm Show and The Flintstone Comedy Hour. See The Pebbles and Bamm-
Bamm Show, IMDB, https://www.imdb.com/title/tt0066699/?ref_=nv_sr_1 (last visited Feb. 15,
2019); The Flintstone Comedy Hour, IMDB, https://www.imdb.com/title/tt0068073/ (last visited
Feb. 15, 2019). He perpetually had a rain cloud over his head and always experienced misfortune.
See, e.g., Schleprock’s New Image, IMDB, https://www.imdb.com/title/tt1904367/ (last visited
Feb. 15, 2019).
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Finally, we come to the point in the Anderson-Burdick analysis where we
weigh the serious burden Florida’s signature-match scheme imposes on vote-by-
mail voters who have belatedly been notified of a signature mismatch, against
Florida’s interests in perpetuating this scheme. We conclude on this record that the
serious burden on voters outweighs Florida’s identified interests: the state’s interest
in preventing fraud is not in conflict with the voters’ interest in having their
legitimately-cast ballots counted; the state has not shown that its interest in
facilitating timely and orderly election processing will be impaired by providing the
injured voters with a reasonable opportunity to have their votes counted; and public
faith in elections benefits from providing injured voters the opportunity to have their
legitimately cast ballots counted when the reason they were not counted was not the
voters’ fault.
For these reasons, the NRSC has failed to make a strong showing that it is
likely to succeed on the merits of the constitutional issue.
ii. The NRSC has not made a strong showing that it is likely to
succeed on the merits of its laches argument.
The NRSC also argues that the equitable doctrine of laches bars the district
court’s preliminary injunction. In response, Plaintiffs urge that laches does not apply
when the plaintiff seeks only to stop continuing constitutional violations. We need
not consider whether laches applies to bar prospective relief from constitutional
harms, because the NRSC cannot satisfy the laches elements.
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To succeed on a laches claim, the NRSC must demonstrate that Plaintiffs
inexcusably delayed bringing their claim and that the delay caused it undue
prejudice. United States v. Barfield, 396 F.3d 1144, 1150 (2005). This they cannot
do.
At the time Plaintiffs brought this action, only about a year had passed since
the Florida legislature amended the signature-match scheme by adding the defective
cure provision, see Fla. Stat. § 101.68 (effective June 2, 2017), and the DECF had
just litigated the topic of signature mismatches, see Fla. Democratic Party, 2016
WL 6090943, at *1. As the district court aptly noted, the DECF did not need to
relentlessly “search and destroy every conceivable potential unconstitutional
deprivation,” Democratic Exec. Comm., 2018 WL 5986766, at *8, but could catch
its breath, take stock of its resources, and study the result of its efforts. In fact,
between Florida’s adoption of the challenged provisions and the November 2018
election, the only other major statewide election to occur was the 2018 primary
election, which wrapped up just weeks before the November 2018 election. So as a
matter of fact, we cannot find inexcusable delay.
Nor can the NRSC show undue prejudice arising from any delay, since the
NRSC has not established that any of the harms it anticipates are anything more than
minimal or nonexistent. As we have mentioned, the state’s administrative burden
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was nominal; its interest in preventing fraud was unaffected; and public faith in the
election is better-served by allowing Plaintiffs’ suit.
On this record, the NRSC cannot make a strong showing that it is likely to
succeed on the merits of its laches argument.
B. The remaining Nken factors similarly disfavor a stay.
The remaining Nken factors do not persuade us to exercise our discretion to
stay the district court’s injunction.
We begin with irreparable injury. The NRSC claims that it will suffer
irreparable injury because the district court’s order will trigger a chaotic restart of
the election, cause the NRSC to expend unrecoverable resources on a get-out-the-
cure campaign, and create the “substantial risk” of counting late-cured ballots. We
disagree.
First, the NRSC’s concern about a chaotic restart of the election is
significantly overstated, as we have explained in our discussion about the
manageability of the district court’s order. Second, the threat of penalty of perjury
safeguards against false claims of belated notification. Plus, the NRSC’s assertion
about the risk of undiscoverable fraud is entirely unsubstantiated.
This leaves the NRSC’s contention that the injunction forces it to expend
unrecoverable resources to encourage voters to cure their ballots. But even assuming
this to be true, that injury is not enough to overcome the NRSC’s inability to show
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likelihood of success on the merits. See Virginian Ry. Co. v. United States, 272 U.S.
658, 672 (1926) (“A stay is not a matter of right, even if irreparable injury might
otherwise result to the appellant.”).
As for the public interest and any harm caused by a stay, Defendants similarly
have failed to show that these factors tilt in their favor. A stay would disenfranchise
many eligible electors whose ballots were rejected by a flawed signature-match
scheme. And public knowledge that legitimate votes were not counted due to no
fault of the voters—and with no reasonable notice to the voters that their votes would
not be counted and no opportunity to correct that situation—would be harmful to the
public’s perception of the election’s legitimacy. Yet protecting public confidence in
elections is deeply important—indeed, critical—to democracy. See Crawford v.
Marion Cty. Election Bd., 553 U.S. 181, 197 (2008) (plurality). And the public
interest is served when constitutional rights are protected. Melendres v. Arpaio, 695
F.3d 990, 1002 (9th Cir. 2012). So the third and fourth Nken factors do not favor
granting the stay.
In short, the NRSC has failed to make the requisite showing to justify a stay
of the district court’s preliminary injunction under the Nken factors.
IV. Response to the Dissent
Finally, we address the Dissent’s remaining arguments. These arguments
arise from the Dissent’s mistaken notions that the district court improperly reframed
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the issue in the case, producing an injunction that was flawed. We respectfully
disagree with the Dissent’s reasoning. To explain why, we begin by reviewing the
district court’s charge when addressing a motion for preliminary injunction, as well
as the relief the district court ultimately ordered. We then respond to the Dissent’s
other arguments based on its mistaken notion.
A. The district court was empowered to enter the narrow and reasonable
preliminary injunction it did.
“Crafting a preliminary injunction is an exercise of discretion and judgment,
often dependent as much on the equities of a given case as the substance of the legal
issues it presents.” Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080, 2087
(2017). In considering whether to grant an injunction, a court evaluates the
applicant’s likelihood of success on the merits, whether the applicant will suffer
irreparable harm without the injunction, the balance of equities, and the public
interest. Winter v. Natural Resources Defense Council, 555 U.S. 7, 20 (2008).
If the court decides to grant an injunction, it must also ascertain what relief to
provide, keeping in mind that the purpose of the injunction is not to conclusively
determine the rights of parties, but only to balance the equities in the interim as the
litigation proceeds. Trump, 137 S. Ct. at 2087. In executing its duties, the court
must pay particular attention to the public consequences of any preliminary relief it
orders. See Winter, 555 U.S. at 24. So it is axiomatic that a district court “need not
grant the total relief sought by the applicant but may mold its decree to meet the
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exigencies of the particular case.” Trump, 137 S. Ct. at 2087 (quoting 11A Charles
Alan Wright, et. al., Federal Practice and Procedure § 2947 (3d ed.)).
Here, the district court did just that. The preliminary injunction was quite
limited. Plaintiffs requested the district court categorically enjoin the enforcement
of the signature-match scheme as to all vote-by-mail and provisional ballots,
meaning they asked the court to require all vote-by-mail and provisional ballots that
had been rejected for signature mismatch to be counted.
But the district court did “not grant the total relief sought.” See id. Rather, it
“mold[ed] its decree to meet the exigencies of the particular case.” Id. Instead of
directing every mismatched ballot to be counted, the district court ordered only the
ballots of those voters who had been belatedly notified of the mismatch to be
counted—and only after those voters cured their ballots within a short window of
time. That was well within its discretion. Indeed, nothing requires a district court
to award all or nothing when it comes to a preliminary injunction. See id.
And in this case, the district court’s targeted injunction made sense. The
subset of voters who received timely notice of the signature mismatch were already
afforded the cure provision that the district court had ordered in 2016. So they at
least had an opportunity to cure a ballot flagged for signature mismatch. But the
same could not be said of those voters who were not timely notified. They faced the
same risk of disenfranchisement that the district court identified as unconstitutional
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two years earlier. The district court carved away much of the relief Plaintiffs
preliminarily requested to award just the portion of the relief Plaintiffs sought that it
previously found to be constitutionally demanded: an opportunity to cure.
Striking down the signature-match scheme wholesale may have been a
possibility between elections if enough time existed for the legislature to enact a
replacement or prohibit vote-by-mail and provisional voting. But given the timing,
taking that course would have awarded too much relief because it might have
allowed some fraudulent ballots to be counted. On the other hand, doing nothing
would have given too little relief because it risked disenfranchising voters. So the
district court’s Goldilocks solution was just right to address the apparent hole in the
signature-match process—that is, the lack of a reasonable opportunity to cure a
signature mismatch. And the awarded relief was a subset of the relief Plaintiffs
sought. That was within the district court’s discretion under the circumstances.
B. The district court did not deny Defendants an opportunity to be heard
on the relief it ultimately granted.
The Dissent asserts that the district court reframed the question presented by
Plaintiffs from whether the signature-match scheme can withstand constitutional
scrutiny to whether the signature-match scheme and an adequate cure provision can
withstand constitutional scrutiny. Dissent at 52-53, 71. In the Dissent’s view, the
district court deprived Defendants of due process by denying them an opportunity to
respond to the allegedly reframed question. Id. at 70-72.
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Again, we must respectfully disagree.
First, the district court’s grant of partial relief neither reframed the issue nor
denied Defendants an opportunity to discuss the cure procedure. The Dissent
reaches the contrary conclusion because it equates partial relief with reframing the
question. But as we have explained, that is not the case. See supra at 30-31 (quoting
Trump, 137 S. Ct. at 2087) (citation and quotation marks omitted) (a district court
“need not grant the total relief sought by the applicant but may mold its decree to
meet the exigencies of the particular case”).
Here, Plaintiffs asked the court to require every vote that was rejected for
signature-mismatch to be counted. That would have entailed throwing out all
signature-mismatch provisions as an unconstitutional burden on their right to vote.
So naturally, the district court had to examine the entire signature-mismatch
process—including Fla. Stat. § 101.68(4), the cure procedure, which Plaintiffs
expressly identified in their complaint—to evaluate Plaintiffs’ claim that the
signature-match scheme unconstitutionally disenfranchised vote-by-mail voters
whose signatures had been mismatched.
The preliminary injunction the court eventually entered granted only a portion
of Plaintiffs’ requested relief, preserving as much of the statutory scheme as
possible, given the court’s previous ruling that the signature-match provisions
without an acceptable cure process unconstitutionally burdened the right to vote. See
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Fla. Democratic Party, 2016 WL 6090943, at *1. Granting only part of the relief
sought is not reframing the question.
Plus, every party pointed the district court to the cure provision in their filings.
In their complaint, Plaintiffs first noted that the cure deadline precedes the deadline
for receipt of vote-by-mail ballots before alleging that “scores of voters are
disenfranchised based on the timing of the mail.” Plaintiffs reiterated this point in
their memorandum in support of their preliminary injunction request, again arguing
that “scores of voters who are unable to meet [the cure] deadline will be denied the
right to vote.” And all three Defendants independently directed the court’s attention
to the cure provision in their filings, in an effort to show that the signature-match
scheme contained adequate procedural protections. Thus, both sides raised the cure
provision, and the district court’s consideration of whether the signature-match
scheme and an adequate cure provision can withstand constitutional scrutiny was
entirely appropriate.
Beyond that, the record reflects that the topic of cure came up repeatedly
during the preliminary injunction hearing. Witnesses were specifically questioned
about the cure period and notice. See, e.g., Transcript of Nov. 14, 2018, Hearing at
23, Democratic Exec. Comm. of Fla. v. Detzner, 347 F. Supp. 3d 1017 (No. 4:18-
CV-520-MW/MJF) (“So all of the ballots received between 5:30 p.m. on the date
before election day and 7 p.m. on election day, those ballots cannot be cured if
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there’s a signature mismatch issue; is that right?” “But if you don’t receive [the
cure documentation] before 5:30 p.m. the day before election day, then [the signature
mismatch] can’t be cured; right?”), 24 (“[D]o you have any idea how many cure
affidavits you got after that 5:30 deadline?”), 30 (“[I]f an individual wants to make
the argument . . . that a mismatched signature is actually a signature match, . . . they
cannot make that argument [after 5 p.m. the day before the election and between
noon on Saturday, even though a person may challenge the legality of a vote-by-
mail ballot under Section 101.168 during that period]; right?”), 70 (“[W]hat is your
understanding of the process to challenge a ballot by either an elector, a voter, or a
candidate as it relates to challenging something because there is not a matching
signature?”). And Defendants did not object.
Not only that, but the court itself asked Plaintiffs’ counsel, “Why would I not
order—if [Plaintiffs] were to win, why wouldn’t I order some process where there
would be an opportunity to, for example, challenge the rejection of the votes as
opposed to just outright counting them?” Transcript of Nov. 14, 2018, Hearing at
97-98. And Plaintiffs’ counsel responded, “[I]f this Court wanted to grant these
voters an opportunity to cure their vote-by-mail ballots, signature mismatches, . . .
there’s a way to do that . . . .” Id. at 100. Plaintiffs’ counsel then went on to suggest
“eliminat[ing] all instances when a ballot can be tossed for a signature mismatch and
the voter be given zero opportunity to cure that signature mismatch.” Id. at 106.
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The court responded that Oregon’s “14-day period after the election to fix . . .
signatures” provides “a real opportunity to fix it.” Id. at 107.
And when the district court asked what alternative relief Plaintiffs sought,
Plaintiffs expressly asked the court to fashion a more modest injunction granting
only partial relief—specifically, “for all of these voters whose ballots have been
rejected for signature mismatch, the alternative relief would be to grant these voters
a chance to cure and extend these deadlines to give these voters a chance to have
their ballots counted.” Id. at 111. Plaintiffs’ counsel also argued that the signature-
mismatch scheme “impose[s] an undue burden . . . to the extent that it deprives
individuals [of] the right to vote, and it does so by depriving them [of] the right to
cure their ballot.” Id. at 200.
As for Defendants, the court asked them, “Why would the world come to an
end if, in the next couple of days before the 18th, if I entered an order today that said
. . . that if somebody wants to challenge the rejection of their ballot, they can do so
between now and the evening of the 17th.” Id. at 127-28. It further inquired, “Why
does a Florida Statute, that does not give an opportunity to challenge the decision of
the canvassing board comport with due process?” Id. at 167.
Clearly, the cure issue was before the district court, and Defendants had an
opportunity to be heard on it.
C. To determine that Plaintiffs enjoyed a likelihood of success on the
merits, the district court was not required to grant the entire preliminary
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injunction Plaintiffs originally requested nor ameliorate the right to
vote for every voter whose vote was not counted because of signature
mismatch.
Next, we turn to the Dissent’s suggestion that the district court was required
to find that likelihood of success on the merits turned on whether granting the
requested injunction in total was appropriate. That mistaken notion elides the
difference between the merits and the remedy and incorrectly suggests that the
district court’s discretion is limited to an all-or-nothing choice when it comes to
ordering injunctive relief. We have already explained why that is not correct. See
supra at 31.
In a somewhat related vein, the Dissent also contends that the district court’s
order offered no real relief to voters subjected to a flawed signature-match scheme
because disenfranchisement is irreparable. Dissent at 60 (“Approximately 5,000
[vote-by-mail] and provisional voters had been disenfranchised . . . by the operation
of the Code’s standardless signature-matching provisions, but they received no
relief. The Court gave them no relief because the disenfranchisement could not be
undone.”) (quotation marks omitted). We respectfully disagree with the notion that
the district court offered no relief.
As the Dissent itself notes, rejection for signature mismatch does not
necessarily mean disenfranchisement. See Dissent at 68 (explaining how a voter
could cure a ballot rejected for mismatched signature). Some voters, by
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happenstance, will have had a meaningful opportunity to cure because they received
timely notice of a mismatched signature. And as for the voters who belatedly
received notice of signature mismatch, their disenfranchisement was not assured
unless the district court declined to award relief. But here, the district court entered
its preliminary injunction providing them with the same opportunity to cure that
other vote-by-mail voters had had. Those who took advantage of the district court’s
relief had their ballots counted and were able to avert disenfranchisement.
D. The district court’s preliminary injunction did not violate principles of
federalism.
The Dissent’s last attack on the district court’s preliminary injunction alleges
that the court offended principles of federalism by rewriting Florida’s election laws.
Dissent at 76-79. According to the Dissent, if Florida’s law were truly
unconstitutional, principles of federalism dictate that the district court’s only
recourse was to strike the signature-match scheme down in its entirety. Id. at 77-78
& n.42. We do not share the Dissent’s view for three reasons.
First, the district court was not adjudicating final judgment. For the
emergency preliminary injunction motion before it, the district court’s duty was “not
to conclusively determine the rights of parties, but only to balance the equities in the
interim as the litigation proceeds.” Trump, 137 S. Ct. at 2087. That’s exactly what
the court did.
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Second, while federalism certainly respects states’ rights, it also demands the
supremacy of federal law when state law offends federally protected rights. See
Puerto Rico v. Branstad, 483 U.S. 219, 228 (1987) (rejecting the premise that states
and the federal government should always be viewed as coequal sovereigns and
explaining that “[i]t has long been a settled principle that federal courts may enjoin
unconstitutional action by state officials.”); Reynolds v. Sims, 377 U.S. 533, 584
(1964) (“When there is an unavoidable conflict between the Federal and a State
Constitution, the Supremacy Clause of course controls.”). Indeed, Ex parte Young,
209 U.S. 123, which authorizes suit against the Secretary in her official capacity in
this case, was designed to “give[] life to the Supremacy Clause.” Green v. Mansour,
474 U.S. 64, 68 (1985). So to the extent the district court concluded that any aspect
of the signature-match scheme unconstitutionally burdened vote-by-mail voters’
fundamental right to vote, it had a duty to strike down the offending part.
And third, rather than undermining Florida’s sovereignty, the preliminary
injunction’s solution actually respected it. For purposes of the preliminary
injunction, instead of throwing out the plausibly legal with the constitutionally
problematic, the district court narrowly tailored its relief to home in on the one
limited aspect of Florida’s signature-match scheme it already found unduly burdened
vote-by-mail voters’ right to vote. And it preserved application of the rest of the
scheme in the interim.
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V. Conclusion
For these reasons, we deny the NRSC’s motion to stay the district court’s
preliminary injunction.
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TJOFLAT, Circuit Judge, dissenting:
This case concerns one of the most important rights, the right to vote, in two
of the most hotly contested 2018 midterm elections. Plaintiffs—alleging that the
signature-matching provisions of Florida’s Election Code violated the Equal
Protection Clause—requested that the District Court enter an injunction requiring
all vote-by-mail ballots rejected for signature mismatch to be counted. Rather than
granting or denying the relief the Plaintiffs actually asked for, the District Court
took the unprecedented step of repleading Plaintiffs’ case and granting relief
completely inconsistent with what Plaintiffs requested. Because we should have
stayed the District Court’s inexplicable and extraordinary grant of relief but did
not, I respectfully dissent.
* * *
This case is about vote-by-mail (“VBM”) and provisional ballots that were
rejected during the 2018 general election due to signature mismatch. Under
Florida law, a VBM voter fills out his ballot, puts it in a mailing envelope, signs
the voter’s certificate on the back of the envelope, and mails it to the county
supervisor of elections. 1 For the county canvassing board to count the ballot, the
voter’s signature on the envelope certificate must match the signature in his voter’s
1
See Fla. Stat. §§ 101.6103(1)–(3) (2018).
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registration entry. 2 If the signatures do not match, a VBM voter may submit an
affidavit with identification to cure the defect.3 The voter must deliver his cure
affidavit to the county supervisor of elections by the deadline—5 p.m. the day
before the election—for his VBM vote to count. 4
A provisional voter must make a slightly different submission. Because his
eligibility to vote cannot be determined when he appears at his precinct to vote, he
casts a provisional ballot and signs the voter’s certificate. 5 Not later than 5 p.m. on
the second day following the election, he may submit to the supervisor of elections
evidence supporting his eligibility to vote at the precinct.6 The canvassing board
then examines the evidence, and if it finds the voter eligible, compares the
signature on the voter’s certificate with the signature on the voter’s registration
entry. 7 If they match, the provisional ballot is counted. 8
2
See id. §§ 101.6103(5), 101.68(1).
3
Id. § 101.68(4)(a). The identification requirement may be met by means of a photo
(Tier I) or non-photo (Tier 2) ID. Id. § 101.68(4)(c). If a Tier 2 ID is used, the signature on the
cure affidavit must match the signature in the registration entry. Id. §§ 101.68(2)(c)(1)(a)–(b).
4
Id. § 101.68(4)(a).
5
Id. § 101.048(1).
6
Id.
7
Id. §§ 101.048(2)(a)–(b).
8
Id. § 101.048(2)(b)(1).
References to “VBM and provisional voters” are, unless indicated otherwise, to VBM
and provisional voters whose ballots had been, or might be, rejected because the signature on the
“voter’s certificate” on the envelope enclosing the ballot did not match the signature on the
“registration entry.” “Registration entry” refers to the “registration books or the precinct
register” that contains the putative voter’s signature.
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The Democratic Executive Committee of Florida, on behalf of Democratic
candidates and voters throughout the state, and Bill Nelson for U.S. Senate
(collectively, “Plaintiffs”) brought this lawsuit against Florida Secretary of State
Ken Detzner (the “Secretary”) on November 8, 2018, two days after the polls for
the general election had closed and the county supervisors of elections had
announced the results of all early voting and VBM ballots that had been counted.9
Plaintiffs wanted a federal judgment declaring the signature-matching provisions
of the Election Code 10 unconstitutional and enjoining the Secretary to direct the
county supervisors of elections to count all of the votes cast by VBM and
provisional ballots that had been, or might be, rejected due to signature
mismatch. 11 Democratic Exec. Comm. v. Detzner, __ F. Supp. 3d __, No. 4:18-
CV-520-MW/MJF, 2018 WL 5986766, at *3 (N.D. Fla. Nov. 15, 2018). Plaintiffs
alleged that rejecting ballots based on a signature mismatch violated the VBM
voters’ rights under the Equal Protection Clause of the Fourteenth Amendment,
citing Bush v. Gore, 12 because the signatures are compared without a standard and
9
“The canvassing board shall report all early voting and all tabulated vote-by-mail results
to the Department of State within 30 minutes after the polls close. Thereafter, the canvassing
board shall report . . . updated precinct election results to the department at least every 45
minutes until all results are completely reported.” Fla. Stat. § 102.141(4)(b).
10
I refer to the relevant Florida statutes as the “Election Code” or “Code.”
11
Plaintiffs also asked the Court to toll the county canvassing boards’ deadline for
submitting “unofficial” election results to the Department of State to ensure that all VBM and
provisional ballots would be counted and included in all submitted election results.
12
531 U.S. 98, 121 S. Ct. 525 (2000) (per curiam).
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the decision is therefore arbitrary. Consequently, some VBM and provisional
ballots had been erroneously rejected, which denied those voters the right to vote.
After it granted the Republican National Senatorial Committee (“RNSC”)
leave to intervene and entertained the parties’ submissions, the District Court
concluded that, as Plaintiffs alleged, the Election Code’s standardless signature-
matching process had arbitrarily deprived “potentially thousands of VBM [and
provisional] voters . . . of the right to cast a legal vote,” in violation of the Equal
Protection Clause. Democratic Exec. Comm., 2018 WL 5986766, at *8. But it
declined to grant the preliminary injunction Plaintiffs sought—that all of the VBM
and provisional ballots be counted.
The Court’s unwillingness to grant the relief Plaintiffs were seeking did not
end the matter. Acting on its own initiative and without notice to the parties, the
Court shifted gears. Ignoring the fact that the Code’s standardless signature-
matching process had deprived some VBM and provisional voters of the right to
vote, the Court (1) acted as if the violation had not occurred, (2) declared that the
provision that afforded VBM voters an opportunity to cure “mismatched signature
ballots” had been “applied unconstitutionally, id. at *9, and (3) enjoined the
Secretary to direct the county supervisors of elections to
allow [VBM] voters who have been belatedly notified [that] they have
submitted a mismatched-signature ballot to cure their ballots by
November 17, 2018, at 5 p.m. The supervisors of elections shall
allow mismatched-signature ballots to be cured in the same manner
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and with the same proof a mismatched-signature ballot could have
otherwise been cured before November 5, 2018, at 5:00 p.m.
Id. 13
This is the injunction now before us.14 The RNSC immediately appealed the
order and moved this Court to stay its enforcement. We declined the stay on the
theory that the RNSC failed to make the required showing under Nken v. Holder,
556 U.S. 418, 434, 129 S. Ct. 1749, 1761 (2009), including “a strong showing that
[it was] likely to succeed on the merits.” Order at 2.15 I dissented because the
RNSC made the required showing here, and now I write to explain why.
The RNSC demonstrated that it was likely to succeed on the merits of its
appeal. As the District Court’s injunctive order clearly implies, Plaintiffs did not
have “a substantial likelihood of success on the merits” because the relief they
13
Plaintiffs had not challenged the Election Code’s cure provisions, nor had they sought
any relief specifically for VBM voters who had been “belatedly notified” that their ballots were
rejected due to mismatching signatures.
14
The District Court did not explain why it granted this injunction rather than the one
Plaintiffs had requested, except to say that “in balancing the equities for this emergency motion,
this [i.e., the injunction before us] is the only constitutional cure that takes into account all the
parties’ concerns.” Id. at *9. The implication is that the relief Plaintiffs requested would not
have been an appropriate “constitutional cure.”
15
In addition, the RNSC needed to show that irreparable injury would occur without a
stay, the stay would not cause substantial injury to other parties, and a stay was in the public
interest. Nken, 556 U.S. at 434, 129 S. Ct. at 1761.
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sought—the counting of all VBM and provisional ballots rejected for lack of
matching signatures—could not be granted. 16
To show why the RNSC is likely to prevail here, I trace the District Court’s
analysis of Plaintiffs’ equal protection claim from beginning to end. In one
fleeting moment, the Court found that Plaintiffs were likely to succeed on their
claim. Then, the Court shifted gears and reframed Plaintiffs’ claim. In turn, it
granted a preliminary injunction that matched the reframed claim and gave a
remedy to a subset of VBM voters—those who, based on the Court’s mistaken
reading of the Code, had been “belatedly notified” that their ballots were rejected
due to signature mismatch. The remedy was a chance to cure the mismatch.
16
The questions presented by the RNSC’s motion for a stay before this Court and
Plaintiffs’ motion for a preliminary injunction before the District Court were highly similar. As
the Nken Court put it,
[t]here is substantial overlap between [the factors governing the granting of a
stay] and the factors governing preliminary injunctions; not because the two are
one and the same, but because similar concerns arise whenever a court order may
allow or disallow anticipated action before the legality of that action has been
conclusively determined.
556 U.S. at 434, 129 S. Ct. at 1761 (citation omitted). Both questions focus on the likelihood of
success on the merits—on appeal in one setting, at trial in the other. Here, Plaintiffs are likely to
succeed on the merits of their appeal if they can likely show that the District Court abused its
discretion by issuing the preliminary injunction. In the District Court, Plaintiffs had to show
they were likely to succeed on the merits of their equal protection claim. Of course, they were
likely to succeed on the merits only if the District Court could grant them the injunctive relief
they sought—the counting of all VBM and provisional ballots that might be rejected due to
signature mismatch.
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My discussion proceeds as follows. Part I reviews Plaintiffs’ complaint and
its motion for a preliminary injunction.
Part II recounts the step-by-step process the Court used to conclude that
Plaintiffs had a substantial likelihood of success on the merits of their claim and
therefore were entitled to the preliminary injunction they requested. The Court
reached that conclusion even though Plaintiffs had not met the requisites for a
preliminary injunction and thus were not entitled to such relief. The deprivation of
the right to vote that VBM and provisional voters had suffered could not be
undone, Democratic Exec. Comm., 2018 WL 5986766, at *8, even by the District
Court.
Part III describes why, even though the District Court found that Plaintiffs
had made the required showing for a preliminary injunction, it could not order the
Secretary to do what Plaintiffs had requested.
Part IV discusses the injunctive relief the Court gave instead, to the VBM
voters who were “belatedly notified.” I explain that the District Court granted
relief neither party asked for, and I show how the District Court misread the
Election Code and violated the Constitution along the way. Part V concludes.
I.
A.
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Plaintiffs’ complaint contained two counts, each seeking relief under 42
U.S.C. § 1983 for violations of the Equal Protection Clause. The counts
incorporated the same factual allegations: Signature matching is “entirely
standardless, inconsistent, and unreliable,” because it is “done without any
consistent standard or relevant expertise.” Moreover, since “[h]andwriting can
change . . . for a variety of reasons,” including “physical[,] . . . mechanical . . . and
psychological factors,” “the signature requirement” is “particularly problematic.”
Deciding whether the signature on the voter’s ballot matches the signature on the
voter’s registration entry is therefore “arbitrary,” as if the decision were made by
tossing a coin.
Count I, styled “First Amendment and Equal Protection,” asserted that
rejecting VBM and provisional ballots based on a signature mismatch arbitrarily
disenfranchises registered voters, and therefore
is plainly violative of the Equal Protection Clause. “Having once
granted the right to vote on equal terms, the State may not, by later
arbitrary and disparate treatment, value one person’s vote over that of
another.” Bush v. Gore, 531 U.S. 98, 104–05 (2000).[17]
17
Count I mentions the First Amendment only in its style, never in its allegations. And
its final paragraph asserts only an equal protection claim: “Based on the foregoing, Defendant,
acting under color of state law, has deprived and will continue to deprive Plaintiffs and the voters
they represent of equal protection under the law secured to them by the Fourteenth Amendment
to the United States Constitution and protected by 42 U.S.C. § 1983.”
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To remedy the violations, Plaintiffs asked the Court to enjoin the rejection of VBM
and provisional ballots and to order the ballots to be counted (along with the VBM
and provisional ballots that were being counted based on matching signatures).
Count II, styled “Equal Protection” and relying on the same Bush v. Gore
language, asserted that the signature-matching process disproportionately impacts
“racial or ethnic minorities and/or young and first-time voters.” Count II contained
no factual allegations indicating why this is so and did not allege any intentional
discrimination by relevant state actors, a required element of an equal protection
claim. Washington v. Davis, 426 U.S. 229, 239, 96 S. Ct. 2040, 2047 (1976). This
may explain why the District Court never mentioned Count II in its order granting
a preliminary injunction. Accordingly, like the District Court, I will focus only on
Count I.
To sum up Count I, Plaintiffs alleged that signature matching is arbitrary.
That is, according to Plaintiffs, ballots were rejected based on a bogus signature
comparison. Plaintiffs sued to vindicate the rights of voters whose ballots were
rejected, and they asked for an injunction requiring the counting of all VBM and
provisional ballots rejected due to signature mismatch.
B.
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Plaintiffs accompanied their Complaint with a motion for a preliminary
injunction. The motion asked the District Court to enjoin the Secretary to direct
the county supervisors of elections to refrain from
rejecting vote by mail and provisional ballots on the basis of a
signature mismatch [and to] toll the deadline for the county
canvassing board to submit “unofficial” results to the Department of
State . . . , in order to ensure that all signed absentee and provisional
ballots are counted and included in all submitted results.
In their responses to Plaintiffs’ motion, the Secretary and the RNSC presented
arguments based on laches and the four-factor standard for obtaining a preliminary
injunction. 18 They argued Plaintiffs’ claim was barred by laches, since Plaintiffs
had known about the signature-matching requirement for years and did not sue
until after the polls were closed and the votes were being counted.
On the merits, the Secretary and the RNSC argued that signature-matching
was reasonable under the Anderson-Burdick balancing test,19 pointing to its role in
18
The RNSC additionally challenged Plaintiffs’ standing to sue on behalf of the voters
whose ballots were not counted and raised a res judicata argument based on a prior suit, brought
by the Democratic Party in 2016, which had challenged the previous signature-matching process.
19
The Supreme Court has recognized “that the right to vote in any manner and the right
to associate for political purposes through the ballot are [not] absolute.” Burdick v. Takushi, 504
U.S. 428, 433, 112 S. Ct. 2059, 2063 (1992) (emphasis added) (citing Munro v. Socialist
Workers Party, 479 U.S. 189, 193, 107 S. Ct. 533, 536 (1986)). And “[e]lection laws will
invariably impose some burden upon individual voters.” Id. Thus, courts “considering a
challenge to a state election law must” apply a balancing test and
weigh “the character and magnitude of the asserted injury to the rights protected
by the First and Fourteenth Amendments that the plaintiff seeks to vindicate”
against “the precise interests put forward by the State as justifications for the
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preventing fraud and the fact that many other states require a signature match for a
VBM ballot to count.20 They additionally argued that any varying standards for
signature comparisons across counties fell within the general prerogative of local
governments to set their own election procedures. On the other elements of the
preliminary injunction standard, the Secretary and the RNSC argued that Plaintiffs’
delay in bringing the suit, as well as the availability of adequate state remedies,
suggested that no federal equitable remedy was needed. They also argued that the
balance of the equities favored them, as judicial decrees changing the rules in the
middle of an election are contrary to the public interest.
In sum, what the District Court had before it was a claim that signature
matching was arbitrary, every qualified voter had a constitutional right not to be
disenfranchised because of it, and the appropriate remedy was to count every
signature-mismatched ballot with no additional information or input from the
voter. The Court did find that signature matching is arbitrary and that it violates
the Equal Protection Clause. But as I explain below, the Court then assumed that
signature matching is constitutional, so long as denied voters have a chance to
burden imposed by its rule,” taking into consideration “the extent to which those
interests make it necessary to burden the plaintiff’s rights.”
Id. at 434, 112 S. Ct. at 2063 (quoting Anderson v. Celebrezze, 460 U.S. 780, 789, 103 S. Ct.
1564, 1570 (1983)).
20
Thirty-five states other than Florida have such a signature-matching requirement. Vote
at Home, Voting at Home Across the States, https://www.voteathome.org/wp-
content/uploads/2018/11/Vote-at-Home_50-State-Report.pdf (last visited Feb. 15, 2018).
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cure. It then granted relief that was designed to give denied voters a longer period
to cure. Plaintiffs, who attacked the practice of signature matching altogether,
never asked for this longer-to-cure relief.
II.
The District Court recognized that it could grant the preliminary injunction
Plaintiffs requested
only if [Plaintiffs] (1) . . . ha[d] a substantial likelihood of success on
the merits; (2) irreparable injury will be suffered unless the injunction
issues; (3) the threatened injury to [VBM and provisional voters]
outweighs whatever damage the proposed injunction may cause the
opposing party; and (4) if issued, the injunction would not be adverse
to the public interest.
Democratic Exec. Comm., 2018 WL 5986766, at *6 (quoting Siegel v. LePore, 234
F.3d 1163, 1176 (11th Cir. 2000) (en banc)). The District Court found that
Plaintiffs satisfied these four factors. I address each in turn.
A.
The Court found that Plaintiffs had satisfied the first factor in answering the
question it thought Plaintiffs’ equal protection claim presented: “whether Florida’s
law that allows county election officials to reject vote-by-mail and provisional
ballots for mismatched signatures—with no standards, an illusory process to cure,
and no process to challenge the rejection—passes constitutional muster.” Id. at *1.
The Court answered the question perfunctorily. “The answer is simple. It does
not.” Id.
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In identifying the question presented, the District Court reframed Plaintiffs’
equal protection claim as follows: Florida’s signature-matching scheme is
unconstitutional on its face because it is standardless, which causes ballots to be
accepted and denied in an arbitrary fashion, without a meaningful opportunity to
cure or challenge the rejection. Since these voters were afforded neither
opportunity, Florida’s signature-matching scheme failed to pass constitutional
muster. Reframed, Plaintiffs’ claim was that if VBM and provisional voters were
given a meaningful opportunity to cure or challenge a ballot rejection, the fact that
the signature-matching scheme had arbitrarily burdened their ballots did not
matter.
The District Court answered the reframed question that Plaintiffs’ equal
protection claim presented in four steps. First, the Court explained why the Code’s
signature-matching provisions were standardless and produced arbitrary decisions
in violation of the Equal Protection Clause. Second, it explained why the
procedure the Code provided for curing a rejected ballot was illusory. Third, it
found that the Code failed to provide an effective process for challenging such
rejection. And last, the Court implied that it could redress with an injunctive order
the injury the signature-matching provisions caused VBM and provisional voters.
1.
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The District Court found that the Code’s signature-matching provisions, Fla.
Stat. §§ 101.68(1), (2)(c)(1) (VBM ballots), and §§ 101.048(2)(b), 101.68(c)
(provisional ballots), were standardless and therefore offensive to the Equal
Protection Clause.
For a vote-by-mail ballot to be counted, the envelope of that ballot
must include the voter’s signature. [Fla. Stat. § 101.65.] Once the
vote-by-mail ballots are received, county canvassing boards review
those ballots to verify the signature requirement has been met. Id. §
101.68(c). In addition to confirming the envelope is signed, the
county canvassing boards confirm the signature on the envelope
matches the signature on file for a voter. These county canvassing
boards are staffed by laypersons that are not required to undergo
formal handwriting-analysis education or training. Moreover,
Florida has no formalized statewide procedure for canvassing boards
to evaluate whether the signature on a vote-by-mail ballot matches the
signature on file with the elections office.
Democratic Exec. Comm., 2018 WL 5986766, at *2 (emphases added) (footnote
omitted). In addition to these shortcomings, “counties have discretion to apply
their own standards and procedures. . . . The only way such a scheme can be
reasonable is if there are mechanisms in place to protect against arbitrary and
unreasonable decisions by canvassing boards to reject ballots based on signature
mismatches.” Id. at *7 (emphasis added).
The same was true for the provisional ballots, which were cast by the voter
in person. The ballot could not be counted if the signatures did not match:
Provisional ballots are placed in a secrecy envelope and sealed. The
person casting a provisional ballot has until 5 p.m. on the second day
following an election to present written evidence supporting his or her
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eligibility to vote. . . . A provisional ballot shall be cast unless the
canvassing board finds by a preponderance of the evidence the person
was not entitled to vote. After making the initial eligibility
determination, the county canvassing board must further compare the
signature on the provisional ballot voter’s certificate with the
signature on the voter’s registration. If the signatures match, the vote
is counted.
Id. at *3 (citations omitted). In sum, the District Court found that the Code’s
standardless signature-matching scheme arbitrarily deprived VBM and provisional
voters of the right to vote in the 2018 general election in violation of the Equal
Protection Clause. Id. at *8.
2.
Next, the District Court analyzed the Code’s provision for curing a
signature-rejected ballot in Fla. Stat. §§ 101.68(4)(a)–(b). It found that the “cure
period” it provided “was intended to solve the inherent problems in signature
matching” but did not. Democratic Exec. Comm., 2018 WL 5986766, at *7. In the
Court’s mind, “the opportunity to cure ha[d] proven illusory. Vote-by-mail voters,
in this election, were not notified of a signature mismatch problem until it was too
late to cure.” Id. As for the provisional voters, the Code provided “no opportunity
to cure under the law. Without this Court’s intervention, these potential voters
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have no remedy. Rather, they are simply out of luck and deprived of the right to
vote,” in violation of the Equal Protection Clause. Id. 21
3.
The District Court found nothing in the Code that gave VBM and
provisional voters the right to challenge a signature mismatch, whether
administratively or in court. “Florida law provides no opportunity for [VBM]
voters to challenge the determination of the canvassing board that their signatures
do not match, and their votes do not count.” Id. at *2.22 And “[t]here is no
mechanism for a [provisional] voter to challenge the canvassing board’s
determination that the voter was or was not eligible to vote.” Democratic Exec.
Comm., 2018 WL 5986766, at *3. 23
21
As it turned out, the Court did nothing for voters who cast provisional ballots; the
preliminary injunction it entered did not apply to them by its terms. But the Court essentially
intervened on behalf of VBM voters, though it limited its intervention to a subset of VBM voters,
to those who were “belatedly notified [that] they ha[d] submitted a mismatched-signature ballot.”
Id. at *9.
22
This statement is correct in part. Once a signature mismatch determination is made
(and, for VBM ballots, the cure period is over), there is no administrative remedy, and normal
statutory processes will not revive any ballots so rejected. But judicial review of signature-
mismatch determinations for VBM ballots is available in the Florida Circuit Court in any
circumstance where the number of challenged votes might change the outcome of the election,
albeit on a limited record and with a deferential standard of review. Fla. Stat. §§ 102.168(1), (3),
(8). Rejection of valid provisional ballots may also be challenged in the Florida Circuit Court,
and the evidentiary and standard-of-review limitations of subsection (8) do not apply. See id. §§
102.168(3)(c), (8) (providing for a cause of action based on “rejection of a number of legal votes
sufficient to change . . . the result,” with limitations that apply only to VBM-ballot signature-
mismatch challenges).
23
At some point in its analysis of whether the Code’s signature-matching provisions
violated the Equal Protection Clause, the District Court apparently concluded that it did not
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4.
Once it recognized that the Code’s standardless signature-matching
provisions operated to deprive VBM and provisional voters of the right to vote, the
District Court had to decide whether it could redress the deprivation with a
preliminary injunction. If it could not, Plaintiffs could not satisfy the first factor
for obtaining a preliminary injunction, a substantial likelihood of success on the
merits.
Plaintiffs’ proposal was an order requiring the Secretary to direct the county
supervisors of elections to accept the VBM and provisional ballots that had been,
or might be, rejected due to signature mismatch and to toll the deadline for the
county canvassing boards’ submission of the unofficial election results to the
Department of State until all these rejected ballots had been counted. If the Court
matter whether the Code provided VBM and provisional voters with effective procedures for
curing or challenging the rejection of their ballots. The Court did so for two reasons.
First, in framing their equal protection claim, Plaintiffs did not challenge the
constitutionality of the Code’s procedures for curing or challenging the rejection of VBM and
provisional ballots. From their point of view, the cure provisions were adequate. Rather, the
injury for which Plaintiffs sought injunctive relief was the arbitrary rejection of VBM and
provisional ballots, and thus the deprivation of the voters’ right to vote, in the application of the
standardless signature-matching provisions. “[T]he asserted injury,” as the Court was quick to
recognize, was “the deprivation of the right to vote based on a standardless determination made
by laypeople that the signature on a voters’ vote-by-mail or provisional ballot does not match the
signature on file with the supervisor of elections.” Id. at *7. This was the injury Plaintiffs
wanted the Court to redress.
Second, since the signature-matching provisions were unconstitutional, the VBM and
provisional voters didn’t need a procedure for curing or challenging the rejection of their ballots.
An injunction requiring that their ballots be counted would provide them with all the relief they
needed.
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could not issue such an order, Plaintiffs could not show likelihood of success on
the merits; nor could they establish the second, third, and fourth factors, since
those factors depend on the issuance of an injunction redressing the constitutional
violation the Court found.
The Court declined to issue the proposed injunction. It could not ameliorate
the deprivation of the right to vote, because, as the Court concluded, that
deprivation “cannot be undone.” See id. at *8. But instead of dismissing
Plaintiffs’ constitutional claim, the Court moved to the second, third, and fourth
factors, to determine whether they had been established. In doing so, it implied
that Plaintiffs satisfied the first factor, the likelihood of success on the merits. 24
B.
The District Court had no difficulty concluding that Plaintiffs had
established the second factor, irreparable injury. “Potentially thousands of voters
have been deprived of the right to cast a legal vote—and have that vote counted—
by an untrained canvassing board member based on an arbitrary determination that
their respective signatures did not match.” Id. at *8. This deprivation, according
24
As I explain in Part III, the District Court was correct not to grant this relief.
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to the Court, would be irreparable if the injunction Plaintiffs proposed did not
issue. 25
C.
The District Court had no difficulty concluding that Plaintiffs had
established the third factor as well. The threatened injury to the VBM and
provisional voters outweighed whatever damage the proposed injunction caused
the Secretary. As the Court put it, “The burden on the right to vote, in this case,
outweighs the state’s reasons for the practice. Thus, . . . this scheme
unconstitutionally burdens the fundamental right of Florida citizens to vote and
have their votes counted.” Id. at *7. 26
D.
The District Court found the fourth factor was satisfied because the
injunction Plaintiffs sought was
in the public interest. The right of voters to cast their ballots and have
them counted is guaranteed in the Constitution. Once again, Florida’s
statutory scheme threatens that right by rejecting votes based on
signature mismatch without an opportunity to challenge that
determination.
Id. at *9 (citation omitted).
25
Of course, the District Court knew it wasn’t going to grant the injunction Plaintiffs
asked for. Instead, the District Court was going to grant the injunction that would remedy its
reframed claim. This discussion of the second factor was just window dressing.
26
The scheme may burden the citizens’ right to vote, but the District Court—by refusing
to grant the injunction Plaintiffs asked for—did nothing to lift the burden and instead maintained
the status quo. This discussion was more window dressing.
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* * *
The District Court spent a lot of time analyzing the four factors. But at
bottom, it was all window dressing—pretext to issue an injunction unmoored from
Plaintiffs’ complained-of injury. This analysis had nothing whatsoever to do with
the injunction the Court finally issued—to give VBM voters who were “belatedly
notified” that their ballots were rejected a chance to cure the rejection.
III.
Finding that Plaintiffs had satisfied the requirements for obtaining a
preliminary injunction, the District Court “granted” their motion for that relief. Id.
at *9. But the word “granted” was empty. The Court did nothing to vindicate the
right to vote for the VBM and provisional voters whose ballots had allegedly been
arbitrarily rejected. “Approximately 5,000” VBM and provisional voters had been
disenfranchised in violation of the Equal Protection Clause by the operation of the
Code’s standardless signature-matching provisions, but they received no relief.
The Court gave them no relief because the disenfranchisement could not be
“undone.” Id. at *8.
The right of suffrage is “a fundamental political right,” Yick Wo v. Hopkins,
118 U.S. 356, 370, 6 S. Ct. 1064, 1071 (1886), protected by the Equal Protection
Clause of the Fourteenth Amendment. Bush, 531 U.S. at 104–05, 121 S. Ct. at529–30. “[T]he right of suffrage can be denied by a debasement or dilution of the
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weight of a citizen’s vote just as effectively as by wholly prohibiting the free
exercise of the franchise.” Reynolds v. Sims, 377 U.S. 533, 555, 84 S. Ct. 1362,
1378 (1964); accord Roe v. Alabama, 43 F.3d 574, 580 (11th Cir. 1995) (per
curiam). “One source of [the right’s] fundamental nature lies in the equal weight
accorded to each vote and the equal dignity owed to each voter.” Bush, 531 U.S. at
104, 121 S. Ct. at 529.
If, as Plaintiffs alleged, accepting or rejecting a VBM ballot is arbitrary due
to the lack of a uniform signature-matching standard, then it is nearly certain that
the ballots of some unregistered voters were improperly accepted and counted, and
the ballots of some registered voters were improperly rejected and not counted.
With these two issues in mind, if Plaintiffs’ allegations are true and the
signature-matching decision is arbitrary, the Code would violate the Constitution in
two ways. First, arbitrarily accepting the ballots of unregistered voters, because
the signatures seemed to match, and counting their votes would dilute the votes of
registered voters. And since this constitutes “arbitrary and disparate treatment,
valu[ing] one person’s vote over that of another,” this vote dilution would violate
the Equal Protection Clause. Id. at 104–05, 121 S. Ct. at. 530. Second, arbitrarily
rejecting the ballots of registered voters, because the signatures seemed not to
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match, would deprive those voters of the right to vote, in violation of the Equal
Protection Clause. 27
But even if Plaintiffs were right—and the signature-matching decisions were
no better than flipping a coin—the District Court could not grant Plaintiffs’
requested relief for two reasons.
First, Plaintiffs’ requested relief would have changed the rules that dictate
whether a ballot is valid, and it would have done so in the middle of the vote count.
Our precedent prohibits this sort of midstream change. See Roe, 43 F.3d at 581.
Such changes are fundamentally unfair, since they inevitably dilute the votes of
everyone who complied with the pre-rule-change requirements. These are not the
rules under which the campaigns and election were conducted, so imposing them at
this stage violates fundamental fairness.
The obvious constitutional remedy—the remedy that would cure any
problems flowing from the arbitrary signature-matching decisions—would be to
knock out all VBM ballots, except the rejected ballots that had been cured (since
those voters had proven their identity with adequate identification). But the
27
Similarly, some provisional voters found eligible to vote in the precinct where they
voted were arbitrarily deprived of the right to vote because the signatures seemed not to match.
See Fla. Stat. § 101.048(2)(b)(1).
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obvious remedy was out of the question; it would render the outcomes of the 2018
general election politically, if not constitutionally, unacceptable.28
Second, Plaintiffs’ requested relief was inconsistent with the nature of their
claim, which is a facial challenge. Plaintiffs’ claim is a facial challenge because,
accepting their theory, the Code cannot be applied in a constitutional way—the
arbitrary signature-matching decision will always be a constitutional violation.
Indeed, the Code was applied exactly as written in this case, yet Plaintiffs still
allege that the signature-matching decision is unconstitutional. Nor is the Code
applied constitutionally when the supervisor of elections gets the signature-
matching decision right. Under Plaintiffs’ theory, the decision itself is still
arbitrary because it is made without a standard. Any correct decisions are still
random, and the whole ballot pool is tainted by the arbitrary filter.
If, as the District Court concluded, the signature-matching process is
arbitrary—and thus unconstitutional—only one remedy would cure the harm:
preventing the Secretary from enforcing the entire VBM and provisional voting
schemes. 29 See United States v. Frandsen, 212 F.3d 1231, 1235 (11th Cir. 2000)
(“The remedy if the facial challenge is successful is the striking down of the
28
Because the District Court could not remedy Plaintiffs alleged injury, it should have
found that Plaintiffs were unable to succeed on the merits on their claim.
29
The Court was right not to grant this remedy, but it should have concluded that,
because the only remedy for Plaintiffs’ alleged injury was unworkable, Plaintiffs were unlikely
to succeed on the merits on their claim. The Court then should have stopped there.
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regulation . . . .” (citing Stromberg v. California, 283 U.S. 359, 369–70, 51 S. Ct.
532, 536 (1931))).
IV.
Instead of dismissing Plaintiffs’ claim because it couldn’t grant the relief
they sought, the District Court pivoted and held this: “Florida’s statutory scheme as
it relates to curing mismatched-signature ballots has been applied
unconstitutionally.” 30 Democratic Exec. Comm., 2018 WL 5986766, at *9. The
Court remedied the manufactured constitutional error by ordering the Secretary to
allow voters who were “belatedly notified they ha[d] submitted a mismatched-
signature ballot to cure their ballots by November 17, 2018, at 5:00 p.m.” Id.(emphasis added).31 In addition to granting relief unrelated to Plaintiffs’ claim—
and different from the relief Plaintiffs actually asked for—the District Court also
misread the Election Code.
30
The relevant provisions are Fla. Stat. §§ 101.68(1), 2(a), 2(c)(1), and (4). As the
ensuing discussion in the text indicates, the District Court overlooked § 101.68(1) and its
relationship to § 101.68(4)(a) and focused instead on §§ 101.68(2)(a) and (2)(c)(1). The
injunctive order did not expressly identify the provisions the supervisors of elections
unconstitutionally applied. The order is silent as to the constitutional right(s) the supervisors of
elections or the canvassing boards violated in applying “Florida’s statutory scheme as it relates to
curing mismatched-signature ballots.”
31
Despite the District Court’s statements about the injury to provisional-ballot voters, its
order does not apply to provisional ballots at all: only “voters who have been belatedly notified”
can avail themselves of the relief. Id. at *9. Provisional ballot voters whose ballots were
rejected were not “belatedly notified” since there was no requirement to notify them at all. Even
if they had been notified that their ballots were rejected, such notice would not be “belated” since
there was no opportunity to cure provisional ballots regardless.
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I divide this Part into three sections. First, I explain how the Code operates.
Second, I show how the District Court misread and misapplied the Code. Third, I
highlight how the District Court abused its discretion and violated the Constitution
in the process.
A.
To show what the District Court misunderstood, let’s start with the proper
understanding of how these VBM provisions operate. A VBM ballot, once filled
out, is placed within a mailing envelope. The voter then signs the voter’s
certificate on the back of the envelope and sends the envelope to the county
supervisor of elections, who must receive it by 7 p.m. on election day. Fla. Stat. §§
101.65, 101.67(2). Instructions, provided with every ballot, warn the voter that if
his signature on the voter’s certificate does not match the signature on the voter’s
registration entry, the ballot “will be considered illegal and not be counted.” Id. §
101.65.
Immediately after the county supervisor of elections receives the ballot, the
supervisor must compare the signature on the voter’s certificate with the signature
on the voter’s registration entry. 32 On finding that a voter’s certificate is missing a
32
The statute reads, in relevant part:
The supervisor of the county where the absent elector resides shall receive the
voted ballot, at which time the supervisor shall compare the signature of the
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signature, or that the signature on the certificate does not match the one in the
registration entry, the supervisor of elections must immediately notify the voter, id.
§ 101.68(4)(a), and allow him to cure the defect.33 The voter will have until 5 p.m.
the day before the election to present the supervisor of elections a signed affidavit
that includes a copy of an appropriate form of identification and a sworn statement
verifying that the ballot is his. Id. §§ 101.68(4)(a)–(b). This submission can be
made via mail, fax, or email. Id. §§ 101.68(4)(c)(4)–(5).
The ballot, and any cure affidavit received, are eventually canvassed. The
canvassing board 34 “must, if the supervisor has not already done so, compare the
signature” on the voter’s certificate or cure affidavit with the one in the registration
elector on the voter’s certificate with the signature of the elector in the registration
books or the precinct register . . . .
Id. § 101.68(1) (emphasis added). The use of “shall compare” and “at which time” indicate that
this duty is mandatory and must be performed when the ballot is received.
33
The majority mistakenly concludes that election officials may sit on a VBM ballot and
do nothing with it until it’s canvassed by the canvassing board. To draw this conclusion, the
majority assumes that the canvassing board compares the signatures all on its own. See Maj. Op.
at 14–15 (“And even more problematically, the law did not require canvassing boards to even
begin the canvassing of vote-by-mail ballots and check for signature match before noon on the
day after the election[, even though signature cures must be submitted by 5 p.m. the day before
the election].”); id. at 22 (noting that submitting a VBM ballot well before the deadline “still
would not guarantee that [a voter] would be notified of any signature mismatch until it was too
late to do anything to remedy the problem”). Doing so, the majority overlooks the parts of the
Code that require the supervisor (1) to immediately compare the signatures after receiving a
ballot and (2) to immediately notify a voter that his ballot has been rejected based on a problem
with the signatures.
34
By statute, each county canvassing board consists of the supervisor of elections, a
county court judge, and the chair of the board of county commissioners. Id. § 102.141(1).
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books “to determine the legality of that vote-by-mail ballot.” 35 Id. §
101.68(2)(c)(1). Canvassing need not occur immediately on receiving a ballot or
cure affidavit: it can begin any time from 15 days before the election to noon of the
day after. Id. § 101.68(2)(a). If a ballot is rejected for a signature mismatch and is
not cured under the procedure specified in § 101.68(4)(b), it is marked “rejected as
illegal” and is not tabulated, although the ballot itself is preserved. Id. §§
101.68(2)(c)(1), (5).
B.
The District Court reached its decision that the Code provisions relating to
“curing” signature-rejected ballots were applied unconstitutionally because it failed
to comprehend how the statutes operated to notify VBM voters that their ballots
had been rejected, id. §§ 101.62(1)(a)–(b), and to inform voters of their right to
cure the rejection, id. § 101.68(4)(b).
With all of that clearly laid out in the Code, here is how the District Court
described the statutory process:
The opportunity to cure is the last chance a vote-by-mail voter has to
save their vote from being rejected and not counted. Florida law
provides no opportunity for voters to challenge the determination of
the canvassing board that their signatures do not match, and their
votes do not count. . . . Even more striking is the fact that under
Florida law, canvassing boards may begin canvassing of vote-by-mail
35
Presumably, this would happen only if the canvassing board received a VBM ballot
after canvassing had already begun. Otherwise, the supervisor would have compared the
signatures immediately after receiving the ballot, as he or she is required to do. Id. § 101.68(1).
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ballots at 7 a.m. on the 15th day before the election, but no later than
noon on the day following the election. Fla. Stat. § 101.68(2)(a).
Thus, a vote-by-mail voter could mail their ballot in weeks early, but
the canvassing board could also wait, canvass the ballot the day after
the election, determine there is a mismatched signature, and toss the
vote. The voter therefore gets no chance to cure, since curing must be
done by 5 p.m. the day before the election.
Democratic Exec. Comm., 2018 WL 5986766, at *2.
The District Court reached the conclusion that the signature-matching
exercise was carried out by the canvassing boards entirely on its own. 36 Nothing in
the allegations of Plaintiffs’ Complaint or the briefing on Plaintiffs’ motion for a
preliminary injunction warranted this conclusion. Nothing in the Complaint or the
parties’ submissions indicated that VBM voters were “belatedly notified” that the
signature on their ballots did not match the signature in their registration entry.
The county supervisors of elections are presumed to have processed VBM ballots
and voters’ cure affidavits in keeping with both the letter and the spirit of the law. 37
Nothing in the complaint or the parties’ submissions rebutted that presumption.
A VBM voter waiting until the eleventh hour to submit his ballot ran the risk
that his ballot might be rejected. VBM voters were on notice that a chain of events
had to happen before they successfully cured a rejected ballot: (1) they had to
36
The majority adopts and endorses this erroneous reading. See Maj. Op. at 14–15, 22.
37
“Ordinarily, we presume that public officials have properly discharged their official
duties.” Banks v. Dretke, 540 U.S. 668, 696, 124 S. Ct. 1256, 1275 (2004) (quoting Bracy v.
Gramley, 520 U.S. 899, 909, 117 S. Ct. 1793, 1799 (1997)).
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receive a rejection notice in the mail, (2) they had to prepare a cure affidavit, and
(3) they had to present the affidavit to the supervisor of elections by 5 p.m. the day
before the election. Obviously, these things would take some time, so a VBM
voter knew that it was risky to submit a VBM ballot near the deadline. A VBM
voter thus had no one to blame but himself if the time ran out for curing a rejected
ballot. See Rosario v. Rockefeller, 410 U.S. 752, 757–58, 93 S. Ct. 1245, 1249–50
(1973) (noting that petitioners could have met the 30-day deadline for enrolling in
political party, “but chose not to. Hence, if their plight can be characterized as
disenfranchisement at all, it was not caused by [the deadline], but by their own
failure to take timely steps to effect their enrollment”).
* * *
In one breath, the District Court held that the signature-matching provision
is arbitrary and thus violated the Equal Protection Clause. See Democratic Exec.
Comm., 2018 WL 5986766, at *8. But in the next breath, the Court found that the
signature-matching provision did not in fact violate the Equal Protection Clause.
Indeed, implicit in its granting relief to the “belatedly notified” VBM voters is the
conclusion that implementing the signature-matching provisions does not violate
the Equal Protection Clause. Thus, it is constitutionally permissible for the
supervisors of elections or the canvassing boards to reject a VBM ballot on a
finding that the signatures on the ballot or cure affidavit and the voter’s registration
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entry did not match. 38 What was constitutionally impermissible was to belatedly
notify a VBM voter of the rejection.
C.
The District Court abused its discretion in ordering that the county
supervisors of elections allow belatedly notified voters time to cure their ballots.
“A district court abuses its discretion if it . . . applies the law in an unreasonable or
incorrect manner . . . .” Glock v. Glock, Inc., 797 F.3d 1002, 1006 (11th Cir. 2015)
(quoting FTC v. AbbVie Prods. LLC, 713 F.3d 54, 61 (11th Cir. 2013)). The abuse
occurred here because the District Court based its injunctive order on an incorrect
reading of the Election Code, thus applying an incorrect legal standard. 39 And this
Court, in wrongly assuming that the District Court had a solid legal foundation for
its injunctive order, was wrong to deny the RNSC’s motion to stay the order.
The District Court not only relied on a mistaken reading of the Code, it also
committed several constitutional violations in reaching its ultimate decision.
38
In fact, the Court endorsed the further use of signature-matching directly within its
order: if any voter seeking to avail himself of the remedy submits a cure affidavit with Tier 2
identification, he is just as subject to the chance of rejection for signature mismatch as a voter in
the first instance. If one coin flip is unconstitutional, surely adding another doesn’t solve the
problem.
39
As I explained in footnote 16, supra, when analyzing the motion to stay, we must
evaluate the likelihood that Defendants will succeed on the merits of their appeal. In this appeal,
the issue will be whether the District Court abused its discretion by granting the preliminary
injunction. Thus, the abuse of discretion is relevant when deciding whether Defendants are
likely to prevail on the merits of their appeal.
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First, in issuing the injunctive order against the Secretary sua sponte without
giving them notice and an opportunity to be heard on whether the order should
issue, the Court denied them due process of law.
Second, in issuing its injunctive order after the polls had closed, the Court
changed the rules under which the general election had been conducted, effectively
rewriting the VBM provisions of the Code. This operated to virtually
disenfranchise some VBM voters—those who would have cured but for the
deadline and were now unable to submit a cure by the new deadline—and, at the
same time, to dilute votes cast at the polls, in violation of the Due Process and
Equal Protection Clauses.
Third, in failing to define “belatedly notified,” the Court created its own
standardless determination for identifying those eligible to vote, in violation of the
Equal Protection Clause.
Fourth, in rewriting the VBM provisions of the Code to eliminate its
purportedly unconstitutional application, the Court dishonored Florida’s separation
of powers doctrine, which prevents courts from rewriting statutes, and thereby
violated the doctrine of federalism, which precludes federal courts from taking
action that would breach a state’s separation of powers.
I expand on these constitutional errors in turn.
1.
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A reader of the District Court’s injunctive order would assume that Plaintiffs
had claimed that in belatedly notifying VBM voters that their ballots had been
rejected, the supervisors of elections had infringed a right the voters enjoyed under
the Fourteenth Amendment, a right they declined to identify. The assumption
would be false because Plaintiffs made no such claim. The Court invented the
claim by reframing what Plaintiffs actually alleged, and it did so without informing
the parties of what was lying in store. Plaintiffs were only attacking the Code’s
signature-matching scheme; they had no quarrel with the Code’s provisions for
notifying VBM voters that their ballots had been rejected and explaining how a
rejection could be cured.
Saddling a defendant with a judgment on a claim the plaintiff did not assert,
a claim based on a legal theory the plaintiff would have rejected, 40 and doing so
without notice to the defendant and affording it an opportunity to be heard violates
the Due Process Clause of the Fourteenth Amendment. That’s what happened
here. The Court entered its injunctive order in derogation of the Secretary’s and
the RNSC’s right to due process.
2.
40
To accept the Court’s position that the signature-matching provisions were valid,
Plaintiffs would have to abandon their position that the provisions violated the Equal Protection
Clause.
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The District Court changed the rules of the election after the polls had
closed, an impermissible remedy under our decision in Roe v. Alabama. 43 F.3d at
581.41 Changing the rules of an election after the voting is over and the ballots are
being counted is an impermissible remedy because it violates rights guaranteed by
the Fourteenth Amendment in three ways. First, the new rules enfranchise those
who failed to comply with the rules in existence before the voting began and
therefore could not legally vote. Second, counting the votes of the newly
enfranchised dilutes the votes submitted in compliance with the existing rules.
Third, changing the rules virtually disenfranchises some who did not vote. Time
constraints, for example, may have rendered these non-voters unable to comply
with the existing rules, but they would have voted or cured had they known of the
new rules.
The first consequence of the District Court’s order, counting votes that
would not have been cast prior to the rule changes, would amount to “stuff[ing] the
ballot box,” id., and would jeopardize the integrity of the election. The second
consequence, diluting compliant votes under the old rules, would disregard the
Court’s “obligation to avoid arbitrary and disparate treatment of the members of
41
Roe involved an Alabama state law that appeared to require absentee ballots to be
either notarized or signed by two witnesses. It was the past practice in Alabama not to count
ballots that did not meet this requirement. Id. After a closely contested election, a state circuit
court ordered the Secretary of State to count non-notarized and insufficiently witnessed ballots.
The District Court issued a conflicting injunction, requiring the Secretary not to comply with the
state court order, and we affirmed the order in relevant part. Id. at 583.
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[the] electorate” and would violate the Equal Protection Clause. Bush, 531 U.S. at
105, 121 S. Ct. at 530. The third consequence, virtually disenfranchising those
who would have voted (or cured) but for the inconvenience imposed by the
preexisting rules, would deprive those would-be voters of the equal protection of
the laws. Roe, 43 F.3d at 581.
3.
Now, onto the problems with belated notice. The District Court’s injunctive
order fails to define “belatedly notified.” What constitutes belated notice, and how
were the supervisors of elections supposed to determine who was belatedly
notified?
Start with the substantive standard of belated notice. This must mean “later
than would in fact allow the voter to cure,” rather than “later than the supervisor of
elections was allowed to wait by statute”: the voter must have received notice at an
hour actually too late to cure, or with an unreasonably low amount of turn-around
time available, if the order is to include him. Interpreting the order otherwise, to
rule that only persons who were notified later than required by the statute received
belated notice, would not remedy any constitutional problem with the statute. So
the most natural reading of the order is that belated notice is a fact-intensive
inquiry turning on the voter’s individual circumstances. When was the voter
notified? What was he told about the cure procedure—was he sent a cure affidavit,
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directed to its location on the county elections website, simply informed that it was
required, or none of the above? What sort of means and capacity—a computer or
fax machine, a few minutes of free time—did he have available to respond quickly,
if necessary? The determination would be easy with respect to some voters—those
whose ballots originally came in after the 5 p.m. cure affidavit deadline—but
harder for others.
The supervisors of elections were not required to retain any of the
information that would help resolve the hard cases of belated notice. Much of it
would be inherently outside a supervisor’s purview—e.g., when the voter checked
his mail—so the supervisor would have no idea which voters were actually
belatedly notified. Likely, many of these possibly belatedly notified voters sent in
(late) cure affidavits. So, supervisors must, for each late cure affidavit already
received, determine whether the affiant was actually belatedly notified, in addition
to making this determination for every cure affiant who submitted his affidavit
between the issuance of the injunction and its deadline two days later. The
injunctive order gave supervisors no guidance or standards to apply when making
these determinations.
This relief is impermissible under Bush v. Gore, in which the Supreme Court
reversed the Florida Supreme Court’s order requiring a hand recount that lacked
uniform standards across counties for determining the intent of the voter. 531 U.S.
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at 111, 121 S. Ct. at 533. The Court explained that “[w]hen a court orders a
statewide remedy, there must be at least some assurance that the rudimentary
requirements of equal treatment and fundamental fairness are satisfied.” Id. at 109,
121 S. Ct. at 532. Here, non-uniform standards for belated notice, and how it is to
be determined, are practically inevitable. Some counties may set a cutoff date and
time to cure. Other counties may ask each voter whether he or she had enough
time. Still others may assume that the submission of every cure after the deadline
was due to belated notice rather than dilatory voter behavior and therefore count
them all. The Court’s failure to dictate a uniform standard for deciding those who
were or were not belatedly notified is destined, almost assuredly, to result in voters
in identical circumstances being treated differently. Under Bush, it must not.
4.
The District Court’s injunction functionally writes a new provision into
Florida’s Election Code as it relates to curing a ballot rejected for want of
matching signatures. It was not needed; the statutory provisions the Court
overlooked informed VBM voters of everything they needed to know to cast a
ballot and have it counted. If the provisions are inadequate, it is the responsibility
of the Florida legislature to refine them.
The Florida Supreme Court would not usurp the legislative prerogative and
rewrite a significant part of the Election Code as the District Court has done. The
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separation of powers doctrine would preclude it from doing so. See, e.g., Fla.
Dep’t of Revenue v. Fla. Mun. Power Agency, 789 So. 2d 320, 324 (Fla. 2001)
(“Under fundamental principles of separation of powers, courts cannot judicially
alter the wording of statutes where the Legislature clearly has not done so.”);
Hawkins v. Ford Motor Co., 748 So. 2d 993, 1000 (Fla. 1999) (“[T]his Court may
not rewrite statutes contrary to their plain language.”).
Under our Constitution, federal courts must respect the doctrine of
federalism; it requires the federal courts to respect Florida’s decision to fashion a
government with three coequal branches, legislative, executive, and judicial. As a
sister circuit has said, “Even the narrowest notion of federalism requires us to
recognize a state’s interest in preserving the separation of powers within its own
government as a compelling interest.” Republican Party of Minn. v. White, 416
F.3d 738, 773 (8th Cir. 2005). The court explained that a “state’s choice of how to
organize its government is ‘a decision of the most fundamental sort for a sovereign
entity.’” Id. (quoting Gregory v. Ashcroft, 501 U.S. 452, 460, 111 S. Ct. 2395,
2400 (1991)).
If the District Court believed the Code’s provisions relating to curing VBM
ballots for lack of a signature match violated the Constitution as applied, what
could it do? The power the Supremacy Clause, see U.S. Const. art. VI, cl. 2,
allows federal courts to review state statutes, but federal courts are limited to
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refusing to apply the provisions they find unconstitutional. See Frandsen, 212 F.3d
at 1235 (“The remedy if the facial challenge is successful is the striking down of
the regulation . . . .” (citing Stromberg, 283 U.S. at 369–70, 51 S. Ct. at 536)); see
also Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process 154 (1994)
(“American courts have no general power of control over legislatures. Their
power, tout simple, is to treat as null an otherwise relevant statute which they
believe to be beyond the powers of the legislature . . . .”). That power does not
extend—as the District Court clearly believed—to prescribing new rules of
decision on the state’s behalf. See Virginia v. Am. Booksellers Ass’n, 484 U.S.
383, 397, 108 S. Ct. 636, 645 (1988) (“[W]e will not rewrite a state law to conform
it to constitutional requirements.”). 42
The District Court could impose no remedy other than an injunction
prohibiting the State’s enforcement of the provisions it found offensive to the U.S.
Constitution. The Court couldn’t impose that remedy, though, because it might
leave out in the cold the VBM voters the Court wanted to protect—those belatedly
42
Remarkably, courts cannot rewrite statutes even by striking down language, rather than
by adding it. Take severability clauses—which the statutes at issue here noticeably lack. In
Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016), as revised (June 27, 2016), for
example, the state defendant argued for a “narrowly tailored judicial remedy,” not facial
invalidation, by pointing to a severability clause in Texas’s abortion statute. Id. at 2318−19. But
the Supreme Court responded that a “severability clause is not grounds for a court to ‘devise a
judicial remedy that entails quintessentially legislative work.’” Id. at 2319 (alterations omitted)
(quoting Ayotte v. Planned Parenthood of N. New Eng., 546 U.S. 320, 329, 126 S. Ct. 961, 968
(2006)).
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notified. The Court didn’t identify the provisions “relat[ing] to curing
mismatched-signature ballots” that were unconstitutionally applied. Those
provisions are intertwined with other VBM provisions, so the vindication of the
rights of the voters belatedly notified might require the Court to enter an order that
would bring down the VBM scheme altogether, a result neither Plaintiffs nor the
belatedly notified voters could accept.
At the end of the day, the District Court should have been restrained by
federalism: the Court should not have taken it upon itself to monitor the operation
of Florida’s Election Code, fine-tuning its provisions here and there. See Curry v.
Baker, 802 F.2d 1302, 1314 (11th Cir. 1986) (“Although federal courts closely
scrutinize state laws whose very design infringes on the rights of voters, federal
courts will not intervene to examine the validity of individual ballots or supervise
the administrative details of a local election.”).
V.
This case highlights the many problems that arise when a federal court
oversteps its Article III authority. Here, the District Court overstepped by
reframing Plaintiffs’ claim sua sponte and without notice to the parties. It also
overstepped by granting relief on the reframed claim, relief that Plaintiffs never
requested. And finally, the District Court overstepped by effectively rewriting the
Election Code.
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