American Civil Rights Union v. Brenda Snipes ( 2019 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-11808
________________________
D.C. Docket No. 0:16-cv-61474-BB
ANDREA BELLITTO,
Plaintiff,
AMERICAN CIVIL RIGHTS UNION,
Plaintiff - Appellant,
versus
BRENDA SNIPES,
in her official capacity as the Supervisor of Elections of Broward County, Florida,
Defendant - Appellee,
1199SEIU UNITED HEALTHCARE WORKERS EAST,
Intervenor Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(August 22, 2019)
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Before MARCUS, GRANT and HULL, Circuit Judges.
MARCUS, Circuit Judge:
The National Voter Registration Act requires state election officials to make
a reasonable effort to remove certain ineligible registrants from the voter rolls.
The American Civil Rights Union (“ACRU”) claims that Brenda Snipes, the
former Broward County Supervisor of Elections, failed to satisfy her list-
maintenance obligations. The district court, after a bench trial, concluded that the
National Voter Registration Act (“NVRA”) requires a reasonable effort to remove
only those voters who become ineligible because of death or change of address and
that Snipes reasonably conducted a program to do just that. ACRU appeals from
those determinations.
This appeal requires us to answer three related legal questions. First, is the
NVRA’s list-maintenance mandate confined to removing voters who become
ineligible because they moved or died, or does the mandate extend to other bases
of ineligibility as well, such as mental incapacity or criminal conviction? Second,
does anything in the Help America Vote Act (“HAVA”) broaden the NVRA’s list-
maintenance obligations? And finally, does the National Change of Address
procedure outlined in the NVRA create a safe harbor for reasonable list
maintenance regarding voters who have moved? As for the first question, the
statute could not be clearer: the states and their subsidiaries are required to conduct
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a general program of list maintenance that makes a reasonable effort to remove
voters who become ineligible on account of death or change of residence, and only
on those two accounts. And nothing found in HAVA -- the latest congressional
codification addressing voter registration -- changes what is required by the
NVRA; indeed, HAVA repeatedly references compliance with the NVRA’s list-
maintenance mandates. Finally, the NVRA sets forth an explicit safe-harbor
procedure by which the states may fulfill their list-maintenance obligations as to
voters who move.
Moreover, after thoroughly reviewing this record and having taken oral
argument, we can discern no clear error in the district court’s factual findings. As
the trial court found, Snipes employed the statute’s safe-harbor provision when she
examined who may have changed his or her address in Broward County, and she
also utilized reliable death records from the Florida Department of Health and the
Social Security administration to identify and regularly remove deceased voters.
The NVRA requires a reasonable effort to remove only those voters who become
ineligible because of death or change of address. Based on the record developed in
the five-day bench trial, the district court did not clearly err in finding that
Broward’s Election Supervisor conducted a program reasonably designed to
accomplish these tasks. Accordingly, we affirm the judgment of the district court.
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I.
The essential facts adduced at trial and the procedural history are these.
American Civil Rights Union, Inc. (“ACRU”) is a nonprofit corporation that works
on election-integrity issues. From November 1, 2003, through the adjudication of
this suit in district court and until the end of 2018, Brenda Snipes (“Snipes”) was
the Supervisor of Elections for Broward County, Florida, and oversaw the Broward
County Supervisor of Elections Office (“BCSEO”). Although the NVRA
centralizes coordinating responsibility in the state and a state-designated chief
elections officer -- in Florida, the Secretary of State -- Florida law delegates
primary authority for voter registration list maintenance to the county-level
supervisors of elections. See 52 U.S.C. § 20509 (“Each State shall designate a
State officer or employee as the chief State election official to be responsible for
coordination of State responsibilities under this chapter.”); Fla. Stat. § 98.015
(mandating that “[t]he supervisor of elections . . . shall update voter registration
information, enter new voter registrations into the statewide voter registration
system, and act as the official custodian of documents received by the supervisor
related to the registration of electors and changes in voter registration status of
electors of the supervisor’s county” and requiring that “[e]ach supervisor shall
ensure that all voter registration and list maintenance procedures conducted by
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such supervisor are in compliance with any applicable requirements . . . prescribed
by . . . the National Voter Registration Act of 1993”). 1
On January 26, 2016, Susan Carleson, the President of ACRU, sent Snipes a
statutory notice letter pursuant to 52 U.S.C. § 20510(b), which affords the state an
opportunity to correct any violation prior to the commencement of a private action
under the National Voter Registration Act, Pub. L. No. 103-31, 107 Stat. 77
(codified as amended at 52 U.S.C. §§ 20501-20511 (2012)). The letter claimed
that Broward County was “in apparent violation” of Section 8 of the NVRA, which
requires the states regularly to conduct maintenance on its voter registration lists,
removing certain ineligible voters. ACRU explained that it had compared
registration totals to population data and concluded that Broward County had an
“implausible” registration rate, yielding the strong inference that the County had
inadequately maintained its voting lists. Snipes responded that Florida maintains a
statewide voter registration database and that the state issues statewide guidelines
and procedures for list maintenance, and referred ACRU to sections 98.045 and
98.065 of the Florida Statutes. Snipes asserted that contrary to ACRU’s
suggestion, Broward’s registration rate had never exceeded 100% of residents
1
The plaintiffs have not challenged the State’s delegation of NVRA duties to the county-level
supervisor of elections under Florida Statute § 90.015.
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during her tenure, and attached list-maintenance compliance certifications filed
biannually with the Florida Department of State.
On June 27, 2016, ACRU sued Broward County Supervisor Snipes in the
United States District Court for the Southern District of Florida.2 Count I of the
Amended Complaint alleged that Snipes “failed to make reasonable efforts to
conduct voter list maintenance programs, in violation of Section 8 of NVRA, 52
U.S.C. § 20507 and 52 U.S.C. § 21083(a)(2)(A) [a provision of the Help America
Vote Act].” And Count II claimed that Snipes had “failed to respond adequately to
Plaintiffs’ written request for data, failed to produce or otherwise failed to make
records available to Plaintiffs concerning Defendant’s implementation of programs
and activities for ensuring the accuracy and currency of official lists of eligible
voters for Broward County, in violation of Section 8 of the NVRA, 52 U.S.C. §
20507(i).” On September 19, 2016, 1199SEIU United Healthcare Workers East
(“1199SEIU”), a labor union, moved to intervene in the lawsuit pursuant to Rule
24 of the Federal Rules of Civil Procedure “to protect the interests of itself and its
members and ensure that no voter, including its members, in Broward County has
his or her registration improperly or illegally canceled as a result of the Plaintiffs’
2
The suit was filed in the name of the ACRU and one of its members, Andrea Bellitto, but
Bellitto was dismissed for lack of standing because she did not provide the County with the
requisite statutory notice. Bellitto has not appealed from that judgment.
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request for court-ordered voter ‘list maintenance.’” The district court granted the
motion to intervene.
After completion of discovery, the parties cross-moved for summary
judgment on Count II. The district court initially denied those motions, but later
dismissed Count II sua sponte. The court concluded that it was without
jurisdiction to adjudicate that claim because the American Civil Rights Union had
failed to provide adequate statutory notice pursuant to § 20510(b). ACRU has not
appealed from the entry of final summary judgment on Count II. The district court
denied summary judgment on Count I, concluding that whether Snipes actually
conducted an adequate general program of list maintenance to remove voters who
had moved or died was a fact-intensive question, more appropriately resolved after
a full airing at trial, particularly in light of ACRU’s evidence of “very high voter
registration rates” in Broward County.
The district court conducted a bench trial, taking extensive testimony about
registration rates, list-maintenance tools employed by the BCSEO, other tools that
might be used to identify ineligible voters, and citizen complaints made to the
BCSEO. Most relevant for our purposes, dueling experts testified in considerable
detail regarding the registration rates in Broward County. ACRU called Scott
Gessler, the former Colorado Secretary of State, to testify about voter list
maintenance tools and offer his expert opinion about what constitutes a reasonable
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effort. BCSEO employees -- Director of Voter Services Mary Hall, IT Director
Jorge Nunez, and Voter Services Coordinator Sharon Fleming -- as well as Snipes
herself, in turn, testified about the procedures the County employs. The district
court also reviewed thousands of pages of documentary evidence, including
spreadsheets documenting voter removals and certifications of list maintenance
that Snipes regularly filed with Florida’s Department of State.
On March 30, 2018, the trial court issued a lengthy opinion, making
extensive findings of fact and conclusions of law, and entered final judgment in
favor of Snipes. The district court concluded, as a legal matter, that the NVRA
requires the state or the County to create a program of list maintenance that makes
a reasonable effort to remove voters who become ineligible only by reason of death
or change of address, and that, as a matter of fact, the evidence established that
Snipes had made an adequate effort to do so, availing herself of the NVRA’s
change-of-address safe harbor and relying on state and Social Security
administration death records in order to identify and remove deceased voters.
ACRU has appealed from both determinations.
II.
A.
“We review an issue of statutory interpretation de novo.” Scimone v.
Carnival Corp., 720 F.3d 876, 880 (11th Cir. 2013) (citing United States v.
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Murrell, 368 F.3d 1283, 1285 (11th Cir. 2004)). But we review for clear error
factual findings made by a district court after a bench trial. Holton v. City of
Thomasville Sch. Dist., 425 F.3d 1325, 1350 (11th Cir. 2005); Fed. R. Civ. P.
52(a). “Clear error is a highly deferential standard of review.” Holton, 425 F.3d at
1350. A factual finding is clearly erroneous “when although there is evidence to
support it, the reviewing court on the entire evidence is left with the definite and
firm conviction that a mistake has been committed.” Id. (quoting Anderson v. City
of Bessemer City, 470 U.S. 564, 573 (1985)). In Anderson, the Supreme Court
explained that the clear error standard
plainly does not entitle a reviewing court to reverse the finding of the
trier of fact simply because it is convinced that it would have decided
the case differently. The reviewing court oversteps the bounds of its
duty under Rule 52(a) if it undertakes to duplicate the role of the
lower court. In applying the clearly erroneous standard to the findings
of a district court sitting without a jury, appellate courts must
constantly have in mind that their function is not to decide factual
issues de novo. If the district court’s account of the evidence is
plausible in light of the record viewed in its entirety, the court of
appeals may not reverse it even though convinced that had it been
sitting as the trier of fact, it would have weighed the evidence
differently. Where there are two permissible views of the evidence,
the factfinder’s choice between them cannot be clearly erroneous.
Anderson, 470 U.S. at 573–74 (citation and quotation marks omitted). Finally, we
review “[a] court’s application of law to facts” de novo. Holston Invs., Inc. v.
LanLogistics, Corp., 677 F.3d 1068, 1070 (11th Cir. 2012).
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B.
The United States Constitution vests in the states the authority to regulate
federal elections but reserves to Congress the prerogative to alter a state’s
procedures. U.S. Const. art. I § 4 (“The Times, Places and Manner of holding
Elections for Senators and Representatives, shall be prescribed in each State by the
Legislature thereof; but the Congress may at any time by Law make or alter such
Regulations, except as to the Places of choosing Senators.”). Three decades after
passing the Voting Rights Act of 1965, and against the backdrop of waning
election participation, Congress exercised its authority and adopted the National
Voter Registration Act of 1993, Pub. L. No. 103-31, 107 Stat. 77 (codified as
amended at 52 U.S.C. §§ 20501-20511 (2012)).
The Act made three explicit findings: “(1) the right of citizens of the United
States to vote is a fundamental right; (2) it is the duty of the Federal, State, and
local governments to promote the exercise of that right; and (3) discriminatory and
unfair registration laws and procedures can have a direct and damaging effect on
voter participation in elections for Federal office and disproportionately harm voter
participation by various groups, including racial minorities.” 52 U.S.C. §
20501(a). In light of these findings, the statute elaborated as one set of goals “to
establish procedures that will increase the number of eligible citizens who register
to vote in elections for Federal office” and “to make it possible for Federal, State,
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and local governments to implement [the Act] in a manner that enhances the
participation of eligible citizens as voters in elections for Federal office.” 52
U.S.C.§ 20501(b)(1)-(2). But because Congress also recognized that easing
registration barriers could threaten the integrity of our elections, the legislation set
forth another set of goals: “to protect the integrity of the electoral process” and “to
ensure that accurate and current voter registration rolls are maintained.” Id. §
20501(b)(3)–(4).
These twin objectives -- easing barriers to registration and voting, while at
the same time protecting electoral integrity and the maintenance of accurate voter
rolls -- naturally create some tension. Undoubtedly, a maximum effort at purging
voter lists could minimize the number of ineligible voters, but those same efforts
might also remove eligible voters. Conversely, preventing the states from
removing registrants altogether would ensure that no eligible voters are removed,
but, at the same time, maximize the risks associated with inaccurate voter rolls.
Thus, Congress crafted a statute that sought to balance these competing interests.
At the heart of this case is the meaning of Section 8(a) of the NVRA, which
reads this way:
In the administration of voter registration for elections for Federal
office, each State shall--
...
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(3) provide that the name of a registrant may not be removed
from the official list of eligible voters except--
(A) at the request of the registrant;
(B) as provided by State law, by reason of criminal
conviction or mental incapacity; or
(C) as provided under paragraph (4);
(4) conduct a general program that makes a reasonable effort
to remove the names of ineligible voters from the official
lists of eligible voters by reason of--
(A) the death of the registrant; or
(B) a change in the residence of the registrant, in
accordance with subsections (b), (c), and (d);
Id. § 20507(a)(3)–(4). In short, the law permits the states to remove registrants
only under defined circumstances -- at the request of the voter, by reason of
criminal conviction or mental incapacity as provided in state law, or because of
death or change of residence; but it also requires the states to conduct a general
program that makes a reasonable effort to remove the names of voters who have
become ineligible on account of death or change of address.
Congress made these and the other provisions of the NVRA enforceable by
expressly creating a private cause of action. Thus, under the Act:
(1) A person who is aggrieved by a violation of this chapter may
provide written notice of the violation to the chief election official of
the State involved.
(2) If the violation is not corrected within 90 days after receipt of a
notice under paragraph (1), or within 20 days after receipt of the
notice if the violation occurred within 120 days before the date of an
election for Federal office, the aggrieved person may bring a civil
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action in an appropriate district court for declaratory or injunctive
relief with respect to the violation.
(3) If the violation occurred within 30 days before the date of an
election for Federal office, the aggrieved person need not provide
notice to the chief election official of the State under paragraph (1)
before bringing a civil action under paragraph (2).
Id. § 20510(b).
In the wake of the 2000 presidential election, Congress again took up the
administration of the electoral process by adopting the Help America Vote Act of
2002 (“HAVA”), Pub. L. No. 107-252, 116 Stat. 1666 (codified as amended at 52
U.S.C. §§ 20901–21145 (2012)). This time, Congress mandated that the states
create computerized statewide voter registration lists. 52 U.S.C. § 21083. It also
required that the states conduct maintenance of the statewide voter registration list
by utilizing “[a] system of file maintenance that makes a reasonable effort to
remove registrants who are ineligible to vote from the official list of eligible
voters.” Id. § 21083(a)(4)(A). The statute provides, however, that “if an
individual is to be removed from the computerized list, such individual shall be
removed in accordance with the provisions of the National Voter Registration Act
of 1993.” Id. § 21083(a)(2)(A)(i). Notably, and unlike the National Voter
Registration Act, HAVA creates no private cause of action; rather, its provisions
are enforceable only through actions taken by the Attorney General of the United
States or by filing an administrative complaint with the state. Id. §§ 21111, 21112.
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C.
Our first and most basic question then is a legal one: whether the National
Voter Registration Act requires Supervisor Snipes to conduct a general program of
list maintenance that makes a reasonable effort to remove voters from the rolls who
became ineligible only on account of death or change of address, as the district
court concluded, or whether the statute also requires the creation of a general
program of list maintenance aimed at other bases of ineligibility as well, such as by
reason of criminal conviction or mental incapacity, as ACRU contends.
We begin “where all such inquiries must begin: with the language of the
statute itself.” United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989).
We “presume that [the] legislature says in a statute what it means and means in a
statute what it says there.” BedRoc Ltd., LLC v. United States, 541 U.S. 176, 183
(2004) (quoting Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253–54 (1992)).
“Thus, our inquiry begins with the statutory text, and ends there as well if the text
is unambiguous.” Id. “The plainness or ambiguity of statutory language is
determined by reference to the language itself, the specific context in which that
language is used, and the broader context of the statute as a whole.” Robinson v.
Shell Oil Co., 519 U.S. 337, 341 (1997).
In this case, the text unambiguously mandates that the states maintain a
“general program that makes a reasonable effort to remove the names of ineligible
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voters from the official lists of eligible voters by reason of” only two things: death
or change of address. 52 U.S.C. § 20507(a)(4). Context confirms this plain
reading. Subsection (a)(3) sets forth a prohibition and limited permissive
exceptions: a registrant may not be removed from the official list of eligible voters
except (1) at the registrant’s request, (2) as provided by State law, by reason of
criminal conviction or mental incapacity, or (3) as set forth in subsection (a)(4).
That is, states may remove a registrant from the voter rolls, but only under those
three circumstances. Subsection (a)(4), in turn, creates an affirmative obligation:
the states shall conduct a general program that makes a reasonable effort to remove
the names of ineligible voters from the official lists of eligible voters by reason of
(1) the death of the registrant, or (2) a change in the residence of the registrant.
The statutory structure further reveals that Congress intended to treat the
categories of ineligibility differently. The states may remove some registrants for
some reasons, but shall remove some for other reasons. Indeed, “when Congress
uses different language in similar sections, it intends different meanings.”
DIRECTV, Inc. v. Brown, 371 F.3d 814, 818 (11th Cir. 2004) (quoting Iraola &
CIA, S.A. v. Kimberly-Clark Corp., 232 F.3d 854, 859 (11th Cir. 2000)). On the
one hand, Congress made removal based on the request of the registrant, criminal
conviction or mental incapacity permissive, while on the other, it required an
affirmative program of list maintenance to remove voters who become ineligible
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because of death or change of address. The statute is structured to treat these
ineligibility categories differently.
What ACRU really has asked us to do is to rewrite the statute so as to treat
all of the categories of ineligibility in the same way. It would have us read the
statute as imposing on the states a general program of list maintenance that makes
a reasonable effort to remove any ineligible voter, regardless of the basis of
ineligibility. But we may not rewrite the unambiguous text, where Congress has
been crystal clear in treating different categories of ineligibility in different ways.
The only one of our sister circuits to address this question has read the statute’s
text in the same way. See Am. Civil Rights Union v. Philadelphia City Comm’rs,
872 F.3d 175, 184 (3d Cir. 2017) (“Nothing in [ACRU’s] game of statutory
Twister plausibly suggests that the plainly mandatory language in (a)(4) should be
substituted for the plainly permissive language of (a)(3).”).
Since the statutory language is plain and unambiguous and requires the
states to employ a general program of list maintenance that makes a reasonable
effort to remove voters based only on account of death or change of address, we
have no occasion to examine statutory purpose. But to the extent ACRU claims
that Congress intended to create a mandatory general obligation on the states to
remove voters from the rolls for many reasons, our reading of the text does not
conflict with the statute’s stated purposes. As we have already explained, the
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NVRA sought to balance competing objectives. ACRU points to just one of the
statute’s broadly stated purposes -- “to ensure that accurate and current voter
registration rolls are maintained,” 52 U.S.C. § 21501(b)(4) -- in order to sustain its
argument that Section 8 means more than it says. But “purpose . . . cannot be used
to contradict text or to supplement it.” ANTONIN SCALIA & BRYAN A. GARNER,
READING LAW 57 (2012). “Purpose sheds light only on deciding which of various
textually permissible meanings should be adopted.” Id. And the NVRA is
particularly ill-suited to focus on purpose rather than text because the statute’s
purposes are multiple and in some tension with each other: Congress sought to
increase voter registration and to limit purging efforts that could impede the
exercise of the franchise, while at the same time ensuring that voter rolls remain
accurate and current. The NVRA, with its carefully balanced objectives, is
paradigmatic of legislation aimed at maximizing competing social values. To take
but one example, the House report on the legislation noted that the Committee on
House Administration’s Subcommittee on Elections had considered mandating
same-day voter registration, which would have substantially increased the number
of eligible voters registered, but ultimately rejected the idea because of many
perceived administrative problems, including the “procedures for verification.”
H.R. Rep. 103-9, at 4 (1993).
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ACRU advances several additional arguments, however, in the face of this
unambiguous text. We remain unpersuaded. First, it claims that the NVRA’s
references to “eligible voters,” “registrants,” and “systematically remov[ing] the
names of ineligible voters” suggest that the Act contemplated a list-maintenance
program sweeping far beyond the removal of voters because of death or change of
address; and, second, that the NVRA must be read together with HAVA, which, it
says, “clarifies” that the general program requiring list maintenance necessarily
covers all ineligibility factors.
Thus, ACRU argues that subsection 8(a)(1) of the NVRA references
“eligible” voters, and “limit[s] the voter list to ‘eligible’ voters.” Subsection
8(a)(1) mandates that states “ensure that any eligible applicant is registered to vote
in an election” by making registration easier in a number of ways. 52 U.S.C. §
20507(a)(1). This provision affirmatively requires states to register eligible voters.
The use of the word “eligible” here limits the affirmative obligation. Of course
Congress would not have mandated that the states register any applicant -- if an
applicant is not eligible to vote, a state would be under no obligation to register the
applicant. The problem with ACRU’s argument is that this provision says nothing
about list maintenance and there is no authority for the proposition that its
reference to “eligible” voters should be read into a separate, and separately clear,
provision.
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ACRU also points to subsection 8(c)(2), which provides that “[a] State shall
complete, not later than 90 days prior to the date of a primary or general election
for Federal office, any program the purpose of which is to systematically remove
the names of ineligible voters from the official lists of eligible voters.” 52 U.S.C. §
20507(c)(2)(A). It asks us to read this provision as somehow creating a
requirement that the states systematically remove the names of all ineligible voters
and do so at least 90 days before an election. Again, we are unpersuaded. For
starters, the provision is more naturally read as a prohibition on the states’
engaging in any systematic voter registration list purging in the months leading up
to an election. The statute says that the states must complete “any program the
purpose of which” is purging at least 90 days out; it does not say that states must
complete “a program” to purge the rolls. Moreover, if the provision meant what
ACRU suggests -- that the states are under an affirmative obligation to
systematically remove the names of all ineligible voters -- then subsection 8(a)(4)’s
requirement that the states make a reasonable effort at removing registrants who
have become ineligible by reason of death or change of address would be utterly
superfluous. Between competing interpretations, one which renders part of the
statute superfluous and one which gives effect to all of its provisions, we opt for
the latter. Microsoft Corp. v. I4I Ltd. Partnership, 564 U.S. 91, 106 (2011).
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ACRU also claims that the Help America Vote Act must be read to have
clarified or modified the National Voter Registration Act’s requirements. It cites
HAVA’s mandate that the states maintain a “system of file maintenance that makes
a reasonable effort to remove registrants who are ineligible to vote from the official
list of eligible voters.” ACRU again claims that this provision “mak[es] explicit
what was already at least implicit in NVRA’s section 8(c)(2) requirement that a
state ‘shall complete [90 days before federal elections] any program . . . to
systematically remove the names of ineligible voters from the official lists of
eligible voters.’” ACRU’s reference back to subsection 8(c)(2) suffers from the
same problems we have identified. To read that provision as having required a
systematic purging effort twists the statute implausibly. Moreover, HAVA’s
reference to “[a] system of file maintenance that makes a reasonable effort to
remove registrants who are ineligible to vote from the official list of eligible
voters” is followed by explicit reference to the NVRA’s notice-and-failure-to-vote
procedures. Congress knew how to reference the NVRA and certainly knew how
to amend it if it chose to do so. Indeed, HAVA explicitly mandates that “[i]f an
individual is to be removed from the computerized list, such individual shall be
removed in accordance with the provisions of the National Voter Registration Act
of 1993 . . . including subsection[] (a)(4) . . . of section 8.” 52 U.S.C. §
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21083(a)(2)(A)(i). Nothing in HAVA broadens the scope of the NVRA’s list-
maintenance obligations.
Moreover, even if HAVA could somehow be read to require the states to
maintain a purge process that went far beyond what the NVRA requires -- a
reading that is at war with the text -- HAVA creates no private cause of action.
Congress established only two HAVA enforcement mechanisms: (1) a civil action
brought by the Attorney General, and (2) a state-based administrative complaint
procedure. 52 U.S.C. §§ 21111, 21112. “Like substantive federal law itself,
private rights of action to enforce federal law must be created by Congress.”
Alexander v. Sandoval, 532 U.S. 275, 286 (2001). Where Congress has not
created a private right of action, courts may not do so, “no matter how desirable
that might be as a policy matter, or how compatible with the statute.” Id. at 287.
“The judicial task is to interpret the statute Congress has passed to determine
whether it displays an intent to create not just a private right but also a private
remedy.” Id. ACRU does not -- and indeed could not reasonably -- argue that
Congress intended to create a private right of action in HAVA.
What we are left with is the unambiguous language found in the NVRA. It
requires the states to conduct a general program of list maintenance that makes a
reasonable effort to remove voters who become ineligible because of a change of
address or death. Although the statute also allows and encourages the states to
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conduct additional programs of list maintenance -- and indeed the states have
administrative and other incentives to do so -- the statute requires nothing more of
the state. We cannot rewrite the statute to impose additional obligations on the
states when Congress chose not to.
D.
The National Voter Registration Act also provides the states with a safe
harbor for conducting a general program of list maintenance that makes a
reasonable effort to remove voters who become ineligible because of a change of
address. In general, a safe harbor is a statutory provision “that affords protection
from liability or penalty.” Safe Harbor, BLACK’S LAW DICTIONARY (11th ed.
2019). Under section 8(c)(1):
(1) A State may meet the requirement of subsection (a)(4) by
establishing a program under which--
(A) change-of-address information supplied by the Postal
Service through its licensees is used to identify
registrants whose addresses may have changed; and
(B) if it appears from information provided by the Postal
Service that--
(i) a registrant has moved to a different residence
address in the same registrar’s jurisdiction in
which the registrant is currently registered, the
registrar changes the registration records to show
the new address and sends the registrant a notice of
the change by forwardable mail and a postage
prepaid pre-addressed return form by which the
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registrant may verify or correct the address
information; or
(ii) the registrant has moved to a different
residence address not in the same registrar’s
jurisdiction, the registrar uses the notice procedure
described in subsection (d)(2) to confirm the
change of address.
52 U.S.C. § 20507(c)(1) (emphasis added). Subsection 8(d) further provides:
(1) A State shall not remove the name of a registrant from the official
list of eligible voters in elections for Federal office on the ground that
the registrant has changed residence unless the registrant--
(A) confirms in writing that the registrant has changed
residence to a place outside the registrar’s jurisdiction in which
the registrant is registered; or
(B)(i) has failed to respond to a notice described in paragraph
(2); and
(ii) has not voted or appeared to vote (and, if necessary, correct
the registrar’s record of the registrant’s address) in an election
during the period beginning on the date of the notice and ending
on the day after the date of the second general election for
Federal office that occurs after the date of the notice.
(2) A notice is described in this paragraph if it is a postage prepaid
and pre-addressed return card, sent by forwardable mail, on which the
registrant may state his or her current address, together with a notice
to the following effect:
(A) If the registrant did not change his or her residence, or
changed residence but remained in the registrar's jurisdiction,
the registrant should return the card not later than the time
provided for mail registration under subsection (a)(1)(B). If the
card is not returned, affirmation or confirmation of the
registrant's address may be required before the registrant is
permitted to vote in a Federal election during the period
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beginning on the date of the notice and ending on the day after
the date of the second general election for Federal office that
occurs after the date of the notice, and if the registrant does not
vote in an election during that period the registrant's name will
be removed from the list of eligible voters.
(B) If the registrant has changed residence to a place outside the
registrar's jurisdiction in which the registrant is registered,
information concerning how the registrant can continue to be
eligible to vote.
(3) A voting registrar shall correct an official list of eligible voters in
elections for Federal office in accordance with change of residence
information obtained in conformance with this subsection.
Id. § 20507(d).
Because the information provided by the Postal Service is collected in the
National Change of Address database, this process is known as the NCOA Process.
The statutory text is clear -- a state “may meet the requirement” of a general
program of list maintenance for change of address by following the NCOA Process
outlined in § 20507(c) to identify and remove ineligible voters. Therefore,
sections 8(a)(4) and (d)(3) of the NVRA establish that an election official in order
to comply with the NVRA and take advantage of the safe-harbor provision must
not only identify potentially ineligible registrants using the NCOA database and
mailing procedures, but must also actually remove those ineligible registrants from
the rolls. See A. Philip Randolph Inst. v. Husted, 838 F.3d 699, 703 n.2 (6th Cir.
2016), rev’d on other grounds, 138 S. Ct. 1833 (2018) (“Because that subsection
describes the NCOA Process as one way in which states ‘may’ comply with their
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obligation under the NVRA to identify and remove voters who are no longer
eligible due to a change of residence, the NCOA Process is sometimes referred to
in this litigation as the ‘Safe–Harbor Process.’”) (citation omitted).
Despite the statutory text affording the states a clearly delineated procedure
to comply with its statutory obligations concerning change of address, ACRU
argues that while states may employ this method, it still may not meet the statutory
requirements. We disagree. ACRU argues that in Husted “the Supreme Court
treated [the provision] . . . as but one permissible trigger that may be used to start a
return card removal procedure.” In Husted, the Court considered the lawfulness of
Ohio’s Supplemental Procedure that involved more than the NCOA data to identify
ineligible voters. Husted v. A. Philip Randolph Inst., 138 S. Ct. 1833 (2018).
Whether a state could permissibly go beyond the safe harbor provision in its efforts
to identify ineligible voters is a markedly different question from the minimum
statutory requirement question we answer today. It is true that the Supreme Court
referenced the NCOA Process as “one option” for a procedure to employ before
removing a voter from the rolls. Id. at 1839. But the Court never suggested that
the NCOA Process standing alone would not satisfy (a)(4), only that states may go
beyond it. And its comment, which ACRU cites, that “according to the Postal
Service ‘[a]s many as 40 percent of people who move do not inform the Postal
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Service,’” was made in that context to explain why Ohio might wish to employ
more robust procedures. Id. at 1840.
Congress could have required more, and perhaps other procedures would be
even more effective at identifying change-of-address ineligibility. Indeed, under
the NVRA and Husted, the states are permitted to employ more robust procedures.
But the fact that states may employ other procedures does not mean the clear
language creating a safe harbor mechanism by which a state may “meet the
requirement” of subsection (a)(4) is something other than what it plainly says -- a
method to satisfy the statute.
While the statute requires a general program of list maintenance that makes
a “reasonable effort” to remove voters who become ineligible because of change of
residence or death, it does not define what a “reasonable effort” entails. As a safe
harbor, the NCOA Process, at a minimum, constitutes a reasonable effort at
identifying voters who have changed their addresses. Because we can find no clear
error in the district court’s factual determination that Snipes employed the NCOA
Process and availed herself of the safe harbor, we need not address what other
procedures might constitute a reasonable effort concerning a voter’s change of
address. As for voters who become ineligible because of death, we agree with the
district court that a jurisdiction’s reliance on reliable death records, such as state
health department records and the Social Security Death Index, to identify and
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remove deceased voters constitutes a reasonable effort. The state is not required to
exhaust all available methods for identifying deceased voters; it need only use
reasonably reliable information to identify and remove such voters.
III.
After thoroughly reviewing this record, we can discern no clear error in the
district court’s finding that Supervisor Snipes made reasonable efforts to remove
registrants from the voter rolls on account of death or relocation.
A.
Based on the testimony of Jorge Nunez, Snipes’s IT Director, as well as
invoices and other documentary evidence, the district court explained the County’s
use of the safe-harbor process this way. Generally, the Broward County
Supervisor of Elections Office contracts with a third-party vendor, Commercial
Printers, a certified NCOA-Link USPS provider, who has been BCSEO’s vendor
for many years. In every odd-numbered year, Snipes’s office works with
Commercial Printers to identify those voters who may have become ineligible on
account of having moved. Once they have identified voters who have potentially
moved using Commercial Printers’ NCOA data, Broward County sends, through
Commercial Printers, a series of mailings to confirm a registrant’s ineligibility
before removing the registrant from the voter rolls. Among these mailings are the
initial address confirmation mailing, which seeks to confirm that a voter still lives
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at an eligible address. If that mailing is returned to the County as undeliverable,
BCSEO prepares additional mailings in an effort to confirm, usually making three
attempts, including a “final notice” which must be answered within 30 days, before
the voter is moved from “active” to “inactive” status on the rolls. Once a voter has
fallen into the “inactive” status, the voter is removed from the rolls if she fails to
vote in two consecutive general elections.
Having examined at length the process utilized by the County, the district
court found that between January 1, 2014, and December 31, 2016, the County
removed 85,484 registrants who moved out of Broward County; 2,739 additional
registrants who moved out of the county and requested a change of address; 1,886
additional voters who asked to be removed from the voting rolls; and 97,941 voters
whose mail was returned as undelivered and who remained inactive for two
general elections.
Based on the evidence adduced at trial, we discern no clear error in the trial
court’s finding that Snipes used the safe-harbor process created by the NVRA.
Indeed, ACRU does not claim that the district court committed clear error in this
determination, hanging its hat instead on the wholly implausible theory that the
NCOA Process is not a safe harbor at all. Because we have concluded that the
National Change of Address Process is a safe harbor in the National Voter
Registration Act scheme for voter list maintenance, and because the district court’s
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factual finding that Snipes reasonably used this process was not clearly in error, we
affirm its conclusion that the County Supervisor met her statutory obligations
regarding purging from the voting lists voters who have changed their residences.
B.
We also see no clear error in the district court’s finding that Snipes made a
reasonable effort at removing deceased voters -- the second mandatory obligation
placed on the states by the NVRA. As a matter of general practice, Florida’s
Department of State obtains reports of deceased individuals from both the Florida
Health Department and the Social Security Death Index (“SSDI”) and regularly
forwards that information to Broward County. BCSEO then enters that
information into the Voter Registration System, and if there is a match with the
date of birth, the address, and the last four digits of the voter’s Social Security
number, it will remove the deceased voter from the rolls. The district court
determined that these removals occurred on a “daily basis.” If an irregularity in the
information is found, BCSEO practice is to request the death certificate from the
voter’s family. If the County receives information that a voter is deceased from
sources other than Florida’s Department of State, it attempts to obtain a death
certificate before removing the voter from the rolls. If, however, the County is
unable to acquire a death certificate, it will attempt to confirm the death of the
registrant with the State. Finally, if the County is still unable to confirm a death, it
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will send a death notice to the registrant’s last-known address for confirmation
before removing the voter from the rolls. The district court found that between
January 1, 2014 and December 31, 2016, Snipes removed some 37,095 registrants
from Broward County’s voter rolls who had died.
Moreover, there is a remarkable consistency in the number of deceased
voters who were removed from the rolls during each of the six-month periods
reflected in Snipes’s certifications filed with the Department of State. The
certifications covered fourteen distinct six-month periods. The first certification is
for the period January 1 to June 30, 2009. The certifications cover every six-
month period thereafter until the end of 2016, except for the one-year period from
July 1, 2009 to June 30, 2010. Eight of the fourteen certifications showed that
between 5,000 and 7,000 deceased voters were removed each time from the rolls.
Four established that between 3,400 and 4,900 deceased voters were removed,
while one certification said that 7,759 were removed and one established that 9,924
were removed. The evidential foundation was sufficient to allow the district court
to fairly determine that the certifications reflected an ongoing and regular list-
maintenance process for removing deceased voters. And it is undisputed that
Snipes employed reasonably reliable information to identify and remove these
voters.
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ACRU argues, nevertheless, that it was unreasonable for the County not to
use additional available tools in order to identify deceased voters, such as the
Social Security Cumulative Death Index -- which, unlike the periodic SSDI,
contains a list of everyone who has passed away since the database was created --
and the State Territorial Exchange of Vital Events (“STEVE”) -- which, like the
SSDI and SSDI Cumulative, is yet another database shared between states that
could have captured out-of-state deaths. It is plausible that if the County had also
used the SSDI Cumulative or STEVE, it could have captured additional deceased
voters. But the NVRA only requires that Broward County make a reasonable
effort, not an exhaustive one, and the Florida Health Department’s records and the
SSDI are reliable sources of information concerning registrant deaths. Indeed,
ACRU has failed to establish that these sources would not effectively capture most
deceased voters. The failure to use duplicative tools or to exhaust every
conceivable mechanism does not make Snipes’s effort unreasonable.
The long and short of it is that the trial court did not clearly err in finding
that Snipes made a reasonable effort to identify and remove deceased voters. She
used reliable information that captured both in-state and out-of-state deaths -- the
Florida Health Department and SSDI records -- and she removed deceased voters
from the rolls on a regular and ongoing basis.
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C.
One additional factual issue warrants further explanation. ACRU presented
some evidence purporting to establish registration rates that exceeded the number
of eligible voters residing in Broward County. As ACRU suggested, and as the
district court recognized in denying summary judgment, implausibly high
registration rates are troubling signs that may suggest the lack of a reasonable
effort at voter list maintenance. However, faced with dueling expert testimony
about the validity of ACRU’s figures, the district court did not clearly err in
discounting this evidence.
Among other things, ACRU presented extensive expert testimony from Dr.
Steven Camarota, a political scientist and elections expert who holds a Ph.D. from
the University of Virginia. Camarota calculated Broward County’s registration
rates for 2010, 2012, and 2014. The registration rate is calculated by dividing the
number of registered voters by the eligible voting population. For the ratio’s
numerator -- the number of registrants -- Camarota used data drawn from the
Election Administration and Voting Survey (“EAVS”), which compiles
registration information that state jurisdictions provide to the U.S. Election
Assistance Commission (“EAC”) biennially. Dr. Camarota calculated the ratios
for 2010, 2012, and 2014, because those were the most recent EAVS years at the
time he wrote his report in 2016. For the denominator -- the eligible voter
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population in Broward County -- Camarota used data drawn from the U.S. Census
Bureau’s American Community Survey (“ACS”). These calculations revealed
registration rates consistently above 80% of the total 18-and-older population of
Broward County, and when accounting for citizenship, the registration rates
exceeded 100% in all three years when using the five-year ACS citizen population
averages.
In sharp contrast, however, Snipes’s expert, Professor Daniel Smith, who
holds a Ph.D. in political science from the University of Wisconsin at Madison,
and who has since 2003 been a professor of political science at the University of
Florida, opined that Camarota’s data and calculations were misleading. Smith
testified that Camarota’s numerator -- drawn from the EAVS data -- reflects the
number of registrants as of the “book-closing date” in a given jurisdiction -- the
last day someone can register to vote before an election.3 Thus, this number is
taken after all new registrations for an election and well into the 90-day period in
which systematic list-maintenance efforts are prohibited by the NVRA in the lead
up to an election. Smith explained that “October of an election year is almost by
definition going to be a high point in a county’s number of registered voters,
3
On cross examination, 1199SEIU’s counsel asked Camarota about when the EAVS data is
collected, and though he appeared unfamiliar with the term “book closing,” he did not dispute
that the data was collected just before a federal election and that the registration numbers would
have risen in that period. He also did not dispute that he could have obtained monthly data
directly from the BCSEO.
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compared to almost any other time in a two-year cycle because of the influx of
newly registered voters and the limitation placed on supervisors in terms of taking
voters off through normal list maintenance.” He opined that the EAVS snapshot,
therefore, could in no way be taken as a definitive picture of what a county’s
registration rate is, “much less any indication of whether list maintenance is going
on and whether it’s . . . reasonable.”
Regarding Dr. Camarota’s denominator -- drawn from the five-year ACS
population data -- Smith also explained that the data employed significantly
underestimated the population in two demonstrable ways. First, the five-year
estimate takes data drawn from the preceding five years and estimates the midpoint
of that data. The 2014 five-year estimate, therefore, estimates the population in the
County at the middle of 2012. But in a jurisdiction with a substantially growing
population, like Broward County, using the 2014 five-year estimate, therefore,
would significantly underestimate the population for 2014, because it did not
account for growth since 2012. Smith also testified that the ACS specifically asks
who has resided in the household in the two-month period before the survey is
taken, so by design it excludes many college students, military personnel, and
persons who reside only part of the year in South Florida (primarily so-called
“snowbirds,” people who live in South Florida in the winter but elsewhere in the
hot summer months) -- all of whom may be properly registered and vote in
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Broward County but would not be included in the ACS population estimates. In
short, Smith opined that Camarota used an artificially high numerator (the high
point of registration at the book-closing date before a federal election) and an
artificially low denominator (the five-year ACS estimate), resulting in an inflated
registration rate.
The district court determined that Camarota’s calculations were misleading.
The court explicitly credited Snipes’s data expert, and discounted the testimony of
ACRU’s expert, and concluded that the registration rates presented by ACRU were
inaccurate. Thus, ACRU’s argument that Broward County’s registration rates
were unreasonably high was neither dispositive nor uncontroverted and cannot
salvage ACRU’s claim that Snipes violated the NVRA’s list-maintenance
requirements.
As an appellate court, it is not our job -- indeed, we are not permitted -- to
reweigh or examine the evidence anew. It is enough for us to observe that the trial
court carefully considered the evidence and that its analysis of that evidence was
not clearly erroneous. While it may be troubling that Snipes failed to produce any
registration rate calculations of her own, Snipes did not shoulder the burden of
persuasion and it was the prerogative of the district court to discount Camarota’s
opinion when faced with competing expert testimony that undermined his calculus
and thus his credibility. In a bench trial, the district court judge is not just the
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gatekeeper for the admissibility of expert testimony, but is itself the finder of fact,
and we owe to it the same deference in assessing the credibility of expert testimony
that we would owe to a jury. See Fla. Int’l Univ. Bd. of Trs. v. Fla. Nat’l Univ.,
Inc., 830 F.3d 1242, 1255 (11th Cir. 2016) (“Where there are two permissible
views of the evidence, the factfinder’s choice between them cannot be clearly
erroneous.”) (quoting Holladay v. Allen, 555 F.3d 1346, 1354 (11th Cir. 2009)).
One other factual issue raised briefly in ACRU’s Reply Brief and more
thoroughly at oral argument warrants comment. ACRU suggested that the
certifications entered into evidence demonstrate that Snipes failed to remove voters
from the rolls for a two-year period -- from July 2013 to June 2015. ACRU argued
that this too suggested a lack of list-maintenance activities during that time frame.
Focusing on the 2013 to 2015 period, the original certifications show that no
inactive voters were removed from the rolls from July 2013 through June 2015.
As we see it, the certification evidence does not establish clear error. For
starters, the certification statistic that ACRU cites is much narrower than its
argument implies. The statistic captures the “Number of inactive registered voters
removed from the statewide voter registration system,” which the certification
form explains “are registered voters who were placed on the inactive list and who
for two general election cycles thereafter did not vote or try, did not request an
absentee ballot, nor updated their registration record.” The category of “inactive
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voters removed” is only a subset of the voters removed for reasons other than
death, including change of address. Indeed, voters who are listed as “active” can
be removed from the rolls for a variety of reasons, as Professor Smith testified.
We add that ACRU did not question Snipes about the gap exposed in the
certifications, and we cannot ourselves determine the reason for that gap. Nor can
we decide that there was no reason for it.
Moreover, other evidence in the record paints a fuller picture of list
maintenance, including the removal of voters from the rolls, ongoing during the
2013 to 2015 time period. First, the certifications themselves show a substantial
number of voters moved from active to inactive during this time: 31,885 in the
second half of 2013, and 59,905 in the first half of 2014. And as we’ve noted, the
certifications also reflect thousands of deceased voters removed from the rolls in
every six-month period. Moreover, Snipes produced spreadsheets of voter
removals from the rolls from 2014 to 2016. These spreadsheets are detailed and
show individual voter information (including name and address), the date of
removal, and the reason for the removal of a voter. Among the reasons offered are
“deceased,” “moved out of county,” and “returned mail, inactive 2 years.” The
spreadsheets establish that voters were indeed removed in 2014, despite the
certification showing that no inactive voters were removed. As best as we can tell,
the accuracy and authenticity of these spreadsheets is not disputed. Thus,
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uncontroverted record evidence shows that voters were removed from the rolls
during the relevant period, even though no inactive voters were removed for failure
to vote in two consecutive general elections.
Ultimately, the district court’s finding is not obviously incorrect. The trial
court did not clearly err in concluding that Snipes made a reasonable effort to
remove voters who were ineligible on account of death or change of address.
Where the evidence reasonably could support multiple inferences, it is not our job
to pick one inference over another or to otherwise second guess the district court’s
plausible factual findings and the inferences it has drawn from those facts. Here
the district court explained in detail and justified its analysis of the record evidence
at length. We can find no clear error in those findings.
***
The National Voter Registration Act requires the states (and as delegated by
Florida, the counties) to employ a general program of list maintenance that makes
a reasonable effort to remove voters who become ineligible because of death or
change of address. The statute provides one method -- the National Change of
Address Process -- by which states may fulfill their obligations regarding change
of address. The district court found that Snipes availed herself of this safe harbor.
As for deceased registrants, there can be little doubt that the use of reliable death
records and ongoing removals based on those records constitutes a reasonable
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effort. The district court also found that Snipes removed deceased voters daily
based on information drawn from Florida Health Department records and the
Social Security Death Index. The district court did not err in its statutory
interpretation and did not clearly err in its findings of fact.
AFFIRMED.
39