Theo tin Ken Detzner, Secretary of Florida State
October 18, 2016, 5pm
Book Closing
Deadline for New Voter Registration
Secretary Detzner Shares Voter Registration Tips Ahead of October 18 Deadline
For Immediate Release
Monday, October 10, 2016
Contact: Meredith Beatrice,
850.245.6522
Secretary Detzner Shares Voter Registration Tips Ahead of October 18 Deadline
TALLAHASSEE –
*UPDATED Wednesday, October 12, 2016*
Secretary of State Ken Detzner released the following statement and shared the following voter registration tips ahead of Florida’s October 18 voter registration deadline. Individuals not already registered to vote in the State of Florida must submit a complete voter registration application by 5:00 p.m. Tuesday, October 18, in order to participate in the General Election.
Florida Secretary of State Ken Detzner, said, “There is still time for Floridians to register to vote for the General Election. Floridians who have been impacted, or have had to evacuate, during Hurricane Matthew should know they have the option to fill out and/or submit their voter registration application at any Supervisor of Elections office or approved voter registration agency, even if it’s outside their county of residence. Voter registration applications sent by mail to any Supervisor of Elections office, voter registration agency, or the Division of Elections in Tallahassee will be accepted for the upcoming General Election as long as they are postmarked by October 18.
“Voters who are unsure of their registration status can visit YourVoteFlorida.com and find links to use the state’s Voter Information Lookup Tool or contact their local Supervisor of Elections office. Voters can also call the state’s main Voter Assistance Hotline at: 1.866.308.6739.”
Secretary Detzner is sharing the following tips with Floridians ahead of the upcoming October 18 deadline to register to vote for the General Election:
If you are unsure of your voter registration status in Florida, check your status using the state’s Voter Information Lookup Tool. You can also call your local Supervisor of Elections office or the state’s main Voter Assistance Hotline at: 1.866.308.6739.
Fill out the Florida Voter Registration Application, which is available in both English and Spanish (English PDF/ Español PDF), on the Division of Elections’ website. Print, sign and mail, or hand deliver, the application to a county Supervisor of Elections office, voter registration agency, or the Florida Division of Elections in Tallahassee. Voter registration applications sent by mail and post-marked by October 18 will be accepted.
Apply through any Florida driver’s license office or tax collector’s office that issues driver’s licenses or Florida identification cards; any “voter registration agency” (i.e., any government entity designated by the National Voter Registration Act or state law who must allow you to apply to register, which includes libraries); any supervisor of elections office; or at the Division of Elections in Tallahassee.
An update to a voter’s signature for the General Election must be submitted no later than the start of the canvassing of vote-by-mail ballots (formerly absentee ballots*), which may start as early as October 24, 2016. Signatures on record are used to verify signatures on ballot certificates before counting provisional and vote-by-mail ballots.
Florida voters may register to vote or update their registration at any time by notifying their local Supervisor of Elections. Additional information is available on YourVoteFlorida.com.
###
About ‘Get Ready. Get Set. Vote!’
In 2016, the Department of State is leading an effort to help educate voters through its Get Ready. Get Set. Vote! campaign which provides key voting-related information and resources in one central location on YourVoteFlorida.com. The webpage will be updated to communicate key voter registration and voting information throughout the 2016 election cycle and is also available in a Spanish version.
About the Division of Elections
The Florida Department of State’s Division of Elections supports the Secretary of State, Florida’s Chief Election Officer, in ensuring that Florida has fair and accurate elections. The Division’s three bureaus; the Bureau of Election Records, Bureau of Voter Registration Services, and Bureau of Voting Systems Certification, have several responsibilities in the areas of legal compliance and elections administration to ensure that Florida’s election laws are uniformly interpreted and implemented. The Division also assists local Supervisors of Elections in their duties, and promotes enhanced public awareness and participation in the electoral process. For more information about Florida’s elections, visit dos.myflorida.com/elections/.
*Pursuant to Chapter 2016-37, Laws of Florida, beginning July 1, 2016 the term “Absentee Ballot” has changed to “Vote-by-Mail Ballot” in the State of Florida.
1
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
FLORIDA DEMOCRATIC PARTY,
Plaintiff,
v. Case No. 4:16cv626-MW/CAS
RICHARD SCOTT, IN HIS OFFICIAL
CAPACITY AS GOVERNOR OF THE
STATE OF FLORIDA, AND KEN DETZNER,
IN HIS OFFICIAL CAPACITY AS SECRETARY
OF STATE OF THE STATE OF FLORIDA,
Defendant.
__________________________/
ORDER GRANTING TEMPORARY RESTRAINING ORDER
“No right is more precious in a free country than that of
having a voice in the election of those who make the laws under
which, as good citizens, we must live. Other rights, even the most
basic, are illusory if the right to vote is undermined.” Wesberry v.
Sanders, 376 U.S. 1, 17 (1964). That right is no less sacrosanct
for aspiring eligible voters than it is for current eligible voters.
This case involves the upcoming election. Florida’s voter
registration deadline for the 2016 election cycle is currently set
for Tuesday, October 11, 2016. For aspiring eligible voters, failing
to register by that date effectively forecloses the right to vote in
Case 4:16-cv-00626-MW-CAS Document 15 Filed 10/10/16 Page 1 of 16
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the 2016 election. Just five days before that deadline, however,
Hurricane Matthew bore down and unleashed its wrath on the
State of Florida. Life-threatening winds and rain forced many
Floridians to evacuate or, at a minimum, hunker down in shelters
or their homes. Like Hurricane Matthew, the voter registration
deadline also approached and bore down on the State of Florida.
Citing the impending Hurricane, many urged the Governor
of Florida, Defendant Rick Scott, to extend the deadline. But Defendant
Scott demurred, asserting instead that Floridian’s had
other avenues to ensure that their right to vote was protected.
Plaintiff brought this case, arguing that Defendants refusal
to extend the registration deadline will unconstitutionally burden
the rights of Florida voters. Specifically, Plaintiff seeks an injunction
(and, in the interim, a temporary restraining order, ECF No.
4), enjoining Defendants from enforcing the October 11 voter registration
deadline. ECF No. 3, at 21.
I
Before this Court reaches the merits, a few housekeeping
matters must be addressed.
The first is standing, “as it is a threshold matter required
for a claim to be considered by the federal courts.” Via Mat Int’l
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S. Am. Ltd. v. United States, 446 F.3d 1258, 1262 (11th Cir.
2006). Associations or organizations, in certain scenarios, have
standing to assert claims based on injuries to itself or its members
if that organization or its members are affected in a tangible
way. See United Food and Commercial Workers Union Local 751
v. Brown Grp., Inc., 517 U.S. 544 (1996). More specifically, organizations
can “enforce the rights of its members ‘when its members
would otherwise have standing to sue in their own right, the interests
at stake are germane to the organization’s purpose, and
neither the claim asserted nor the relief requested requires the
participation of individual members in the lawsuit.’” Arcia v. Fl.
Sec’y of State, 772 F.3d 1335, 1342 (11th Cir. 2014) (quoting
Friends of the Earth, Inc. v. Laidlaw Envt’l Servs. (TOC), Inc.,
528 U.S. 167, 181 (2000)).
As one of my colleagues held in another election case, political
parties have standing to assert, at least, the rights of its members
who will vote in an upcoming election. Fla. Democratic Party
v. Hood, 342 F. Supp. 2d 1073, 1078–79 (N.D. Fla. 2004) (Hinkle,
J.). That was so even though the political party could not identify
specific voters that would be affected; it is sufficient that some inCase
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evitably would. Here too, Plaintiff need not identify specific aspiring
eligible voters who intend to register as Democrats and who
will be barred from voting; it is sufficient that some inevitably
will. Plaintiff thus has standing.
Second, this Court must address whether Defendant Scott
and Defendant Detzner are the proper parties to be sued in this
case. It is well-established that while a state may not be sued unless
it waives its sovereign immunity or that immunity is abrogated
by Congress, Kimel v. Fla. Bd. of Regents, 528 U.S. 62
(2000), that a suit alleging a constitutional violation against a
state official in his official capacity for prospective injunctive relief
is not a suit against the state and, therefore, does not violate
the Eleventh Amendment, Ex Parte Young, 209 U.S. 123, 161
(1908). That is because “[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, Plaintiff seeks prospective injunctive relief against
the Governor and the Secretary of State in their official capacity.
This Court will address Defendant Detzner first. Florida law establishes
that, as Secretary of State, Defendant Detzner is the
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“chief election officer” for the State of Florida. § 97.012, Fla. Stat.
(2016). Thus, Defendant Detzner is vested with the power to issue
orders directing compliance with the election code or prohibiting
violations thereof. And because “[h]is power by virtue of his
office sufficiently connect[s] him with the duty of enforc[ing]” the
election laws, Ex Parte Young, 209 U.S. at 161, he is a proper
party here. Cf Grizzle, 634 F.3d at 319 (holding that Georgia Secretary
of State was proper party in voting case).
But that does not apply equally to Defendant Scott. Plaintiff
implies that Defendant Scott, as Governor, had the authority
to extend the voter registration deadline. ECF No. 5, at 3. But it
appears that Defendant Scott lacked the authority to extend the
deadline. Florida law cloaks the Governor with general emergency
management powers. § 252.36, Fla. Stat. (2016). But courts
cannot use tunnel vision when construing statutes; rather, statues
must be considered as a whole. John Hancock Mut. Life Ins.
Co. v. Harris Trust & Sav. Bank, 510 U.S. 86, 94 (1993). And in
the event of an emergency or disaster, the Governor is authorized
“to suspend or delay any election.” § 101.733, Fla. Stat. (2016).
That does not imply the Governor is authorized to extend the
voter registration. In fact, it implies the opposite. See O’Melveny
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& Myers v. F.D.I.C., 512 U.S. 79, 86 (1994) (referencing the canon
“Inclusio unius, exclusion alterius”). Furthermore, specific statutes
prevail over general ones. D. Ginsberg & Sons v. Popkin, 285
U.S. 204, 208 (1932). Thus, because Defendant Scott’s office did
not “connect[] him with the duty of enforc[ing]” a voter registration
extension, Ex Parte Young, 209 U.S. at 161, he does not appear
to be a proper party here.
II
Under Civil Rule of Procedure 65(1)(1)(A), a court may issue
a temporary restraining order only if “specific facts in an affidavit
or a verified complaint clearly show that immediate and irreparable
injury, loss or damage will result to the movant before
the adverse party can be heard in opposition.” This Court must
scrupulously honor Rule 65 requirements and thus it would be
improper to issue a temporary restraining order absent compliance.
Temporary restraining orders “have the effect of merely
preserving the status quo rather than granting most or all of the
substantive relief requested” by a plaintiff in a complaint. Fernandez-Roque
v. Smith, 671 F.2d 426, 429 (11th Cir. 1982).
For a plaintiff to be entitled to a temporary restraining order,
it must show “(1) a substantial likelihood of success on the
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merits; (2) that irreparable injury will be suffered if the relief is
not granted; (3) that the threatened injury outweighs the harm
the relief would inflict on the [defendants]; and (4) that entry of
the relief would serve the public interest.” Schiavo ex rel.
Schindler v. Schiavo, 403 F.3d 1223, 1225–26 (11th Cir. 2005).
While all of these elements must be established, none is controlling;
this Court must instead consider these elements and the
strength of the showing made as to each of them together, and a
strong showing of (for instance) likelihood of success on the merits
may compensate for a relatively weak showing of public interest.
See Fla. Med. Ass’n, Inc. v. U.S. Dep’t of Health, Educ., &
Welfare, 601 F.2d 199, 203 n.2 (5th Cir. 1979).1
The right to vote is a “precious” and “fundamental” right.
Harper v. Va. State Bd. of Elections, 383 U.S. 663, 670 (1966).
Voting is, indisputably, a right “‘of the most fundamental significance
under our constitutional structure.’” Burdick v. Takushi,
504 U.S. 428, 433 (1992) (quoting Illinois Bd. of Elections v. Socialist
Workers Party, 440 U.S. 173, 184 (1979)). State and local
1 Decisions of the Fifth Circuit prior to October 1, 1981 are binding
within the Eleventh Circuit. Bonner v. City of Pritchard, 661 F.2d 1206, 1207
(11th Cir. 1981) (en banc).
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laws that unconstitutionally burden that right are impermissible.
Wash. State Grange v. Wash. State Republican Party, 552 U.S.
42, 41 (2008).
But that does not mean the right to vote is absolute. Rather,
states retain the power to regulate their own elections. Burdick,
504 U.S. at 433 (citations omitted). Election laws almost always
burden the right to vote. See id. (“Election laws will invariably
impose some burden upon individual voters.”). Some of these
regulations must be substantial to ensure that order rather than
chaos accompanies our democratic process. Id.
Not every voting regulation, however, is subject to strict
scrutiny. Rather, courts considering a challenge to state election
laws “must 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
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 (quoting Anderson v. Celebrezze, 460 U.S.
780, 789 (1983)). “This standard is sufficiently flexible to accommodate
the complexities of state election regulations while also
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protecting the fundamental importance of the right to vote.”
Obama for Am. v. Husted, 697 F.3d 423, 429 (6th Cir. 2012).
When voting rights are subjected to “severe” restrictions, the regulation
at issue “must be ‘narrowly drawn to advance a compelling
importance.’” Id. (quoting Norman v. Reed, 502 U.S. 279, 289
(1992)). If the right to vote is not burdened at all, then rational
basis review applies. Ne. Ohio Coal. for the Homeless v. Husted,
696 F.3d 580, 592 (6th Cir. 2012). But in the majority of cases
where voting rights are subject to less-severe burdens, the State’s
interests often—but not always—are sufficient to justify the restrictions.
Anderson, 460 U.S. at 788. In those cases, “[h]owever
slight the burden may appear, . . . it must be justified by relevant
and legitimate state interests sufficiently weighty to justify the
limitation.” Common Cause/Georgia v. Billups, 554 F.3d 1340,
1352 (11th Cir. 2009) (quotation omitted).
Our starting point is to look at whether and to what extent
Florida’s statutory framework burdens the right to vote. Under
Florida’s statutory framework, there is no provision that extends
the voter registration deadline in the event of an emergency such
as provided for a suspension or delay of the election date. Literally,
in excess of a hundred thousand aspiring eligible Florida
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voters were likely to have registered to vote in the final week of
voter registration. ECF No. 5, at 2. Hurricane Matthew not only
forced many of those voters to evacuate the state, but also foreclosed
the only methods of registering to vote: in person or by
mail.2 Because those aspiring eligible voters could not register,
they could not vote in the upcoming election. As a result, Florida’s
statutory framework completely disenfranchises thousands
of voters, and amounts to a severe burden on the right to vote.
It has been suggested that the right to vote is not severely
burdened because other opportunities to vote are available. For
example, voters instead could vote early, by mail, or on Election
Day. ECF No. 5, at 7. But that argument is a nonsequitur. Those
options are available only if the voter has already registered. It
does absolutely nothing for those aspiring eligible voters who
have yet to register. And because Florida’s statutory framework
would categorically deny the right to vote to those individuals, it
is a severe burden that is subject to strict scrutiny. See Burdick,
504 U.S. 434. Even assuming that the State of Florida could point
2 To ensure the safety of its workers, Governor Scott directed the state
offices in more than thirty of Florida’s sixty-seven counties to close. The U.S.
Postal Service also suspended operations in the affected areas. ECF No. 5, at
6.
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to a valid compelling interest (and this Court doubts that it can),
it is nonsensical to argue that it is narrowly tailored to that interest.
Florida’s statutory framework fails strict scrutiny and is
therefore unconstitutional.
Even assuming that Florida’s statutory framework was
subject to a more flexible Anderson–Burdick test, it still would be
unconstitutional. In no way could Defendants argue that there is
some sort of limitation that requires them to burden the constitutional
rights of aspiring eligible voters. Many other states, for example,
either extended their voting registration deadlines in the
wake of Hurricane Matthew or already allow voter registration
on Election Day. See infra pp. 13–14. There is no reason Florida
could not do the same. In so ruling, this Court is not suggesting
that Florida has to allow voter registration up to Election Day.
Rather, it simply holds that the burden on the State of Florida in
extending voter registration is, at best de minimis. And, because
Florida cannot put forth a “legitimate state interest[] sufficiently
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weighty to justify the” burden, Billups, 554 F.3d at 1352 (quotation
omitted), Florida’s statutory framework is also unconstitutional
under the Anderson–Burdick test.
Finally, Florida’s statutory framework is unconstitutional
even if rational basis review applied (which it does not). Quite
simply, it is wholly irrational in this instance for Florida to refuse
to extend the voter registration deadline when the state already
allows the Governor to suspend or move the election date due to
an unforeseen emergency. § 101.733, Fla. Stat.
Because Florida’s statutory framework is unconstitutional
under any test that could apply, Plaintiff is likely to prevail on
the merits.
As explained above, in addition to the likelihood of success
on the merits, three other factors influence the propriety of a
temporary restraining order: whether “irreparable injury will be
suffered if the relief is not granted,” whether “the threatened injury
outweighs the harm the relief would inflict on the” defendants,
and “whether entry of the relief would serve the public interest.”
Schiavo, 403 F.3d at 1225–26.
It is unquestionable that Plaintiff and its members would
suffer irreparable injury if a temporary restraining order is not
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granted. See, e.g., Obama for Am., 697 F.3d at 436. This is not a
case where failing to grant the requested relief would be a mere
inconvenience to Plaintiff and its members. Instead, if aspiring
eligible Florida voters are barred from registering to vote then
those voters are stripped of one of our most precious freedoms.
This isn’t golf: there are no mulligans. Once the voter registration
deadline passes, “there can be no do-over and no redress.” League
of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 247
(4th Cir. 2014).
Likewise, the balance of hardships favors Plaintiff. This
case pits the fundamental right to vote against administrative
convenience. Of course, the State of Florida has the ability to set
its own deadlines and has an interest in maintaining those deadlines.
But it would be nonsensical to prioritize those deadlines
over the right to vote, especially given the circumstances here.
Other states ravished by Hurricane Matthew extended their registration
deadline to protect voters. See, e.g., The Latest: Hurricane
Conditions Expected in Next Few Hours, ABC News (Oct 6,
2016, 4:15 p.m.), http://abcnews.go.com/US/wireStory/latest-floridas-airports-hurricane-delays-42610982.
In fact, fifteen other
states, including, for example, Iowa, even allow registration on
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Election Day. See, e.g., Iowa Code § 48A.7A (2016) (“A person who
is eligible to register to vote and to vote may register on election
day by appearing in person at the polling place for the precinct in
which the individual resides and completing a voter registration
application, making written oath, and providing proof of identity
and residence.”). It is incomprehensible that Florida could not follow
suit.
Finally, the injunction is undoubtedly in the public interest.
The Constitution guarantees the right of voters “to cast their
ballots and have them counted.” United States v. Classic, 313
U.S. 299, 315 (1941). Cementing unconstitutional obstacles to
“that right strike at the heart of representative government.”
Reynolds v. Sims, 377 U.S. 533, 555 (1964). These voters have already
had their lives (and, quite possibly, their homes) turned upside
down by Hurricane Matthew. They deserve a break, especially
one that is mandated by the United States Constitution.
Ensuring that they can exercise their constitutional right to vote
thus promotes the public interest.
One final note. Hurricane Matthew’s effects are not circumscribed
to one region of the state. It affected jobs, families, and
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more across the state. It would be grossly inappropriate, for example,
to hold that aspiring eligible voters in Jacksonville could
register later than those in Pensacola. Therefore, this Order
holds that Florida’s current statutory framework is unconstitutional.
That unconstitutionality is not limited to those in the areas
most affected by Hurricane Matthew. It extends to the entire
State of Florida.
III
It has been suggested that the issue of extending the voter
registration deadline is about politics. Poppycock. This case is
about the right of aspiring eligible voters to register and to have
their votes counted. Nothing could be more fundamental to our
democracy.
Accordingly,
IT IS ORDERED:
1. Plaintiff’s Motion for a Temporary Restraining Order,
ECF No. 4, is GRANTED. Defendant Detzner is directed
to copy the supervisors of elections with this order
and direct the supervisors of elections to extend the
new voter registration deadline to Wednesday, October
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12, 2016, at 5:00 p.m., and accept registrations up to
that date and time.
2. Plaintiff must serve this Order on Defendants Scott and
Detzner by 11:00 a.m., October 11, 2016.
3. The Clerk shall issue a notice of hearing. The matter is
set for Wednesday, October 12, 2016, at 10:00 a.m., at
which time a hearing shall be held in Tallahassee as to
whether Plaintiff’s request for a preliminary injunction
should be granted. Plaintiff must likewise serve the notice
on Defendants Scott and Detzner by 11:00 a.m., October
11, 2016.
SO ORDERED on October 10, 2016.
s/Mark E. Walker ____
United States District Judge
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