WILLIAMS et al v. DESANTIS et al

Filing 35

FIRST AMENDED COMPLAINT against All Defendants All Defendants., filed by NEW FLORIDA MAJORITY EDUCATION FUND, DREAM DEFENDERS, BIANCA MARIA BAEZ, ORGANIZE FLORIDA, ACACIA WILLIAMS, Zebra Coalition, Murray Heller, Sheila Young, Celcio Eduardo Romero, Paulina Hernandez Morales. (NAIFEH, STUART)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION
DREAM DEFENDERS, NEW FLORIDA
MAJORITY EDUCATION FUND,
ORGANIZE FLORIDA EDUCATION
FUND, ZEBRA COALITION, ACACIA
WILLIAMS, BIANCA MARIA BAEZ,
MURRAY HELLER, PAULINA
HERNANDEZ MORALES, CELCIO
EDUARDO ROMERO, and SHEILA
YOUNG,

Case No. 1:20-cv-67-RH- GRJ
Judge Robert L. Hinkle

Plaintiffs,
v.
RON DESANTIS, in his official capacity
as Governor of the State of Florida,
LAUREL M. LEE, in her official capacity
as Florida Secretary of State, and
FLORIDA ELECTIONS CANVASSING
COMMISSION,
Defendants.

FIRST AMENDED COMPLAINT
1.

The COVID-19 pandemic has upended every aspect of American life,

and in Florida, the pandemic threatens the very basis of our democratic system—free,
fair, and accessible elections, because Defendants Governor Ron DeSantis, Secretary
of State Laurel Lee, and the Florida Elections Canvasing Commission have failed to
1

take steps to protect every Floridians’ right to vote. Public health officials project that
the pandemic will continue to impact our lives in the coming days, weeks, and
months, restricting our movements and ability to engage in “normal” activity. The
COVID-19 crisis should not block voters from casting ballots or force them to make
choices between their health and participating in the democratic process.
2.

In the presidential preference primary (PPP) on March 17, 2020, many

Florida voters were denied any opportunity to cast a ballot as a result of Florida’s
failure and refusal to take any action to ensure the right to vote bringing turnout to a
historic low.
3.

There are two more elections scheduled for 2020, neither of which will

be open, fair, secure, and accessible if Florida’s voting system is not adjusted to meet
the needs of this unprecedented emergency. Immediate action by the Governor, the
Secretary of State, and the Elections Canvassing Commission remove barriers to
registering and voting is necessary to ensure all eligible Floridians can exercise their
right to vote safely and without risk to the health and welfare of themselves, their
families, or their communities.
4.

In light of social distancing requirements and the health risks resulting

from the COVID-19 pandemic, overly restrictive vote by mail processes, failure to
make accommodations for disabled voters, ballot submission deadlines, an anemic
online voter registration system, failure to provide vote by mail ballots and materials
2

in Spanish, unrealistic ballot curing timeframes, and a paucity of ballot delivery
mechanisms threaten the right to vote of countless Floridians. Defendants’ failure to
make any meaningful accommodation to mitigate these impacts of the COVID-19
crisis poses an undue burden on the right to vote in violation of the Constitution, the
Voting Rights Act, the Americans with Disabilities Act, and the Rehabilitation Act.
Without immediate action, marginalized and underserved voters will face severe and
uneven burdens casting a ballot by mail, if they are able to do so at all, and voters
with disabilities and health conditions putting them at heightened risk from COVID19 will be denied the resources they depend upon to cast a secret ballot on their own.
To ensure that the right to vote is not compromised due to present public health crisis,
Defendants must act now to prepare for upcoming elections and address the needs of
vulnerable voters in this time of crisis.
5.

Having already once observed the impact of the state’s refusal to

accommodate the enormous dangers COVID-19 has created for its residents on
Election Day, and because many Floridians, including Plaintiffs, their members, and
their communities, will be denied the right to vote or unable to access a ballot in the
upcoming elections, Plaintiffs bring this action to protect the fundamental right to
vote and to vindicate their rights under the Voting Rights Act, the Americans with
Disabilities Act, and the Rehabilitation Act.

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JURISDICTION & VENUE
6.

Plaintiffs bring this action under 42 U.S.C. §§ 1983 and 1988 to redress

the deprivation under color of state law of rights secured by the United States
Constitution, § 2 and § 203 of the Voting Rights Act (“VRA”), 52 U.S.C.A. §§
10301, 10503, the Fourteenth and Fifteenth Amendments of the United States
Constitution, and under Title II of the Americans with Disabilities Act, 42 U.S.C. §§
12131, et seq., and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794.
7.

This Court has original jurisdiction over the subject matter of this action

pursuant to 28 U.S.C. §§ 1331 and 1343 because the matters in controversy arise
under the Constitution and laws of the United States. Plaintiffs bring this action to
redress the deprivation, under color of state law, of rights, privileges, and immunities
secured by the Constitution of the United States and federal law. Plaintiffs bring this
action to secure equitable relief under federal law providing for the protection of
voting rights, pursuant to 28 U.S.C. § 2202.
8.

This Court has personal jurisdiction over Defendants, who are sued only

in their official capacity as officers of the State of Florida.
9.

Venue is proper in this Court under 28 U.S.C. § 1391(b). Plaintiff

Williams resides in Gainesville, Plaintiff Dream Defenders has members in
Gainesville, and a substantial part of the events that gave rise to Plaintiffs’ claims
occurred in this judicial district.
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10.

This Court has the authority to enter a declaratory judgment and to

provide preliminary and permanent injunctive relief pursuant to Rules 57 and 65 of
the Federal Rules of Civil Procedure and 28 U.S.C. §§ 2201 and 2202.
PARTIES
A.

Plaintiffs
11.

Plaintiff DREAM DEFENDERS is a Florida non-profit corporation

with its principal office in Miami-Dade County, Florida. 1 The organization was
established in 2012 following the killing of teenager Trayvon Martin and is led by
Black and Brown youth. Dream Defenders uses training and organizing of youth and
students to confront structural inequality. The organization conducts civic
engagement activities across the state of Florida, including get out the vote efforts.
The membership of Dream Defenders includes college students who have been
displaced from their schools due to the coronavirus pandemic. The state’s failure to
offer appropriate and necessary accommodations in response to the pandemic is
thwarting these members’ ability to cast ballots and have them count in the 2020
election cycle, and hindering the organization’s efforts to register Floridians to vote
and help them vote, and causing the organization to divert resources including staff
time to secure the participation of registered Floridians in upcoming elections.

Dream Defenders is a fiscally sponsored project of Tides Advocacy, a Californiabased non-profit.
5
1

12.

Plaintiff NEW FLORIDA MAJORITY EDUCATION FUND

(“NewFM”) is a Florida non-profit corporation and membership organization with
its principal office in Miami-Dade County, Florida. Founded in 2009, NewFM is
dedicated to organizing, educating, and mobilizing disempowered communities in
Florida to win equity and fairness throughout the State. NewFM's central focus is to
expand democracy by ensuring that every person eligible to vote, regardless of party
affiliation, can exercise his or her fundamental and constitutionally protected right to
vote. To achieve its goal, NewFM works with individual members and organizations
across the state of Florida engaged in civic and democratic endeavors to assist
underserved communities in voter registration, voter education and get out the vote
efforts. Defendants’ failure to take necessary steps to address the state of emergency
caused by coronavirus thwarts the organization’s efforts to increase voter
participation, harms its members who are registered voters in the state of Florida,
and is causing the organization to divert resources including staff time to secure the
participation of Floridians in upcoming elections.
13.

Plaintiff

ORGANIZE

FLORIDA

EDUCATION

FUND

is

a

community-based, non-profit member organization with its principal offices in
Orange County, Florida. Its membership consists of low- and moderate-income
people dedicated to the principles of social, racial, and economic justice and the
promotion of an equal and fair Florida for all. Organize Florida’s members bring
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communities together to join in the fight for safe neighborhoods, healthy families,
quality education, good jobs, justice, equality, and a more representative democracy.
Organize Florida’s major campaigns have included supporting children and families
and increasing Latinx voter turnout. The organization is committed to exposing
injustice and holding Florida’s leaders accountable. The state’s failure to take
necessary steps to accommodate impacted voters in light of the coronavirus outbreak
hinders the organization’s efforts to increase participation among the communities it
serves, harms its members who are registered voters, and is causing the organization
to divert resources including staff time to secure the participation of Floridians in
upcoming elections.
14.

Plaintiff ZEBRA COALITION is a community-based, nonprofit

organization based in Orlando, Florida. Its mission is to support and inspire LGBTQ+
youth by assisting young people facing homelessness, bullying, isolation from their
families, and physical, sexual and drug abuse with individualized programs to guide
them to recovery and stability. The Zebra Coalition provides temporary housing to
young adults facing homelessness as well as access to a network of organizations
who provide essential services to LGBTQ+ youth such as mental health counseling,
assistance with obtaining identification documents and other legal document and
services, leadership training and support services. The Zebra Coalition seeks to
mobilize and engage the young people it serves though voter registration. The state’s
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failure to take steps during the public health crisis necessary to prevent the
disenfranchisement of homeless and housing-insecure individuals and youth with
temporary living accommodations hinders the organization’s ability to engage the
individuals it serves in the political process, causing the organization to divert
resources including staff time to ensure they can participate in upcoming elections.
Zebra Coalition’s youth residents with health risks also are fearful of physical
contacts at government and other offices.
15.

Plaintiff ACACIA WILLIAMS is a full-time student in her second year

at the University of Florida in Gainesville, Florida. Her family resides in Sullivan
County, New York. On or around March 13, 2020, Ms. Williams complied with a
directive from the University of Florida to leave her dorm and not to return to campus,
due to the coronavirus outbreak. Subsequently, the University announced that it will
maintain remote classes through its summer sessions, with students remaining away
from campus. Ms. Williams is currently at her parents’ home in Sullivan County,
New York, and does not know when she will be permitted to return to the University
of Florida campus.
16.

Plaintiff, BIANCA MARIA BAEZ is a registered voter in Leon County,

Florida who was unable to vote during the Presidential Preference Primary because
she was self-isolating after returning home from an international trip. Ms. Baez’s
preference is to vote in-person on election day. However, because of her concerns of
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exposure to COVID-19, she plans to vote by mail in the upcoming elections. Ms.
Baez prefers to submit her ballot via curbside delivery as she is distrustful of her
ballot being delivered by the U.S. Postal Service in time to be counted.
17.

Plaintiff MURRAY HELLER is an 86-year-old registered voter in

Delray Beach, Florida. Before the COVID-19 pandemic, he planned to vote in person
at his polling location in Florida’s March 17, 2020, Presidential Preference Primary.
Because of Governor DeSantis’s executive order banning gatherings and because of
Mr. Heller’s age, his pacemaker, and his history of cardiac conditions and the grave
health consequences for older voters with his health conditions like his of contracting
COVID-19, Mr. Heller could not vote at his assigned polling place. As a result of
Defendants’ failure to extend the vote by mail request deadline or make other
accommodations to allow vulnerable individuals like himself to vote safely, Mr.
Heller was totally denied an opportunity to cast a ballot in the PPP. As the pandemic
has spread, Mr. Heller’s fear of the serious health risks he faces from COVID-19 has
only increased. Plaintiff Heller wants to vote in the upcoming August and November
2020 elections, but he fears he will again be unable to vote in person. Plaintiff Heller
would vote by mail using a ballot drop box if he could navigate the vote-by-mail
process without the need to expose himself to health risks, or in in person-using
curbside voting if it were made available to him.

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18.

Plaintiff PAULINA HERNANDEZ MORALES is an 85-year-old

naturalized U.S. Citizen and voter in Seminole County, Florida. Ms. Hernandez
Morales lives with stage 2 breast cancer and has high blood pressure. Ms. Hernandez
Morales has attempted to vote by mail in Florida in the past. Twice, most recently in
2018, after she sent her ballot to the SOE, it was not received in time to be counted.
Ms. Hernandez Morales has read that vote-by-mail ballots have frequently been
rejected in her community. Because she does not trust the vote-by-mail system due
to her past experiences with attempting to vote-by-mail in the state, Ms. Hernandez
Morales had planned to vote in person on election day in the upcoming elections. She
wants the reassurance of seeing her ballot counted, and she requires the assistance of
a Spanish-language poll-worker or other person to make an informed decision on
Election Day. Ms. Hernandez-Morales is not able to vote in-person this year because
her health conditions and age place her in the high-risk category for COVID-19. In
the past, Ms. Hernandez has received Spanish-language assistance from friends, but
with the COVID-19 pandemic, her friends are not able to assist her. Ms. Hernandez
is worried her ballot will again not be counted. Ms. Hernandez Morales would be
able to vote if she could access assistance, for example from election officials, and
had a way to be sure her vote-by-mail ballot would be counted, such as an ability to
track her mail ballot reliably and a meaningful opportunity to cure any problems with
her ballot. She would also be able to vote if Florida offered curbside voting, which
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would allow her to access assistance to vote on election day and ensure her vote is
counted.
19.

Plaintiff CELCIO EDUARDO ROMERO is a 76-year-old naturalized

U.S. citizen, and a resident of and voter in Orange County, Florida. Plaintiff
Romero’s dominant language is Spanish. Plaintiff Romero lives with multiple
sclerosis (MS), and suffered a stroke a few years ago. As a result, he has limited
mobility and has lost the ability to write. He can sign his initials with great difficulty,
but he can no longer sign his full name. He also lives with diabetes and high blood
pressure, heightening his vulnerability to COVID-19. Mr. Romero lives in a senior
residence, Magnolia Towers, that is connected to an assisted living facility and is near
his medical providers. Mr. Romero typically votes in person at his polling place but
cannot safely leave his residence and go inside a polling station during the COVID19 pandemic. The Orange County SOE has never conducted supervised voting at
Magnolia Towers or placed a polling place there. Plaintiff Romero would like to vote
by mail this year but cannot do so without assistance marking his vote-by-mail ballot
or technology that would allow him to do so independently. He is also concerned
that, because he cannot sign his name, his ballot is likely to be rejected.
20.

Plaintiff SHEILA YOUNG a resident of Orange County, Florida. She is

eligible and registered to vote. Plaintiff Young is blind. To vote, she uses assistive
technology available at her polling place that allows her to mark her ballot
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independently and privately. Though she had concerns about appearing in person at
her polling place in the PPP, she did so because it was the only way she could cast
her ballot independently. As COVID-19 outbreak has spread, Ms. Young has become
even more concerned about voting at her polling place in the August and November
2020 elections and cannot do so without grave risk to her health. As a blind person,
she cannot see whether she is standing the necessary six feet away from others. She
cannot navigate a polling-place line in which voters must remain six feet apart or see
whether poll workers are properly disinfecting the accessible equipment between
voters.
21.

Ms. Young would like to vote by mail but because she is blind, she

cannot mark a paper vote-by-mail ballot without assistance from another person. It is
important to her to be able to vote independently and privately. She does not want to
be forced to request someone else mark her paper vote-by-mail ballot because that
would violate the secrecy of her ballot and her autonomy. She would use an electronic
ballot delivery option to mark her ballot at home if Florida officials provided blind
voters like herself with that option. The need for postage to request and return her
mail ballot also poses an obstacle to Ms. Young. The US Postal Service’s website
does not offer an accessible means of purchasing postage online, and social
distancing concerns prevent her from purchasing postage at the Post Office or other
locations. Without an accessible option to mark her mail ballot and with the other
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obstacles she faces voting by mail, Plaintiff Young will not be able to cast an
independent and private ballot in the August and November 2020 elections.
22.

Defendants’ refusal to make appropriate changes in voter registration

and election procedures to address the COVID-19 public health emergency will
frustrate organizational Plaintiffs’ respective missions and cause them to divert
resources by interfering with their members’ efforts to safely and effectively cast a
ballot in the upcoming August primary and November General Election. Individual
Plaintiffs will be unable to vote safely at their assigned polling places, and unless
vote-by-mail procedures are adjusted to address the current reality, they will be
unable to vote by mail as well.
B.

Defendants
23.

Defendant RON DESANTIS is sued in his official capacity as Governor

of the State of Florida. Defendant DeSantis is a person within the meaning of 42
U.S.C. § 1983 and acts under color of state law. As Governor of Florida, Defendant
DeSantis is the state’s chief executive officer and is responsible for the administration
of all state laws, including those pertaining to elections. Defendant DeSantis is also
a member of the Elections Canvassing Commission as established in Florida Statute
§ 102.111. As Governor of the State of Florida, Defendant DeSantis is vested with
emergency powers related to the suspension or delay of elections resulting from a
state emergency. Fla. Stat. § 101.733.
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24.

Defendant LAUREL M. LEE is sued in her official capacity as Florida

Secretary of State. Defendant Lee is a person within the meaning of 42 U.S.C. § 1983
and acts under color of state law. Pursuant to Florida Statute § 97.012, the Secretary
of State is the chief elections officer of the State and is responsible for the
administration of state laws affecting voting. Defendant has the authority to oversee
the administration of elections by Florida’s 67 county supervisors of elections.
25.

Defendant ELECTIONS CANVASSING COMMISSION is sued as a

state-created entity. Its membership consists of the Governor and two members of the
Cabinet selected by the Governor, as set forth in Florida Statute § 102.111. Pursuant
to Florida Statute § 101.698, the Elections Canvassing Commission is tasked with
adopting emergency rules to facilitate absentee voting during emergency situations.
STATEMENT OF FACTS
A.

The COVID-19 Pandemic
26.

On December 1, 2019, the first confirmed COVID-19 patient began

experiencing symptoms in China’s Hubei province. 2 The novel coronavirus infection
rapidly spread to other countries. By January 21, 2020, the Centers for Disease

Fernando Duarte, “Who Is ‘Patient Zero’ in the Coronavirus Outbreak,” BBC
(Feb. 23, 2020) (online at www.bbc.com/future/article/20200221-coronavirus-theharmful-hunt-for-covid-19s-patient-zero).
14
2

Control and Prevention (“CDC”) confirmed the first patient in the United States.3 On
March 11, 2020, the World Health Organization announced that COVID-19, the
disease that is causing the 2019 novel coronavirus outbreak had become a pandemic.
27.

Scientists and public health officials do not yet fully understand

COVID-19, who will become mildly ill, who will get severely ill, and who will die. 4
People who have tested positive from the virus experience symptoms ranging from
very mild (including potentially a majority of people who experience no symptoms)
to severe. A significant percentage of those who contract COVID-19 die as a result
of the disease. 5 An early report from China suggested that in 16% of cases, people
with COVID-19 become seriously ill. 6
28.

COVID-19 creates a significantly higher risk of serious illness or death

for individuals, such as Plaintiffs Romero, Hernandez Morales, and Heller, who have
underlying chronic health conditions, including heart disease, diabetes, and cancer
and persons with compromised immune systems including some of the individuals
served by the Zebra Coalition. One study found that, among patients diagnosed with
COVID-19, individuals who had one chronic condition were 1.8 times more likely

Elizabeth Cohen, “First US Case of Wuhan Coronavirus Confirmed by CDC,”
CNN (Jan. 21, 2020) (online at www.cnn.com/2020/01/21/health/wuhancoronavirus-first-us-case-cdc-bn/index.html).
4
Ctrs. for Disease Control & Prevention, supra note 1.
5
Ctrs. for Disease Control & Prevention, supra note 1.
6
Id.
15
3

than those without a chronic condition to have a “poor outcome,” such as requiring a
ventilator or dying. That rate jumped to 2.6 times greater risk for individuals with
two chronic conditions. The Centers for Disease Control agrees that “people of any
age with underlying health conditions, such as diabetes, lung disease, or heart disease,
are at greater risk of severe illness from COVID-19.” 7
29.

Moreover, people of color are experiencing a higher rate of death due to

COVID-19. In New York City, African Americans and Latinx are dying at twice the
rates of whites. In Chicago, 70% of persons who died from the virus were African
American, which is more than twice their percentage in the city’s population.
According to the United States Census 2019 population estimates, African
Americans and Latinx represent 43% of Florida’s population. Many of these
communities are located in densely populated areas, where the virus tends to spread
very quickly.
30.

The disease also creates a greater risk of serious health consequences

and death on older adults. This is especially true for people 65 years and older, such
as Plaintiffs Romero, Hernandez Morales, and Heller, and people who live in a
nursing home or long-term care facility. An early report by the CDC found that 80%

Centers for Disease Control, “Know the facts about coronavirus disease 2019
(COVID-19) and help stop the spread of rumors” (March 12, 2020), available at
https://www.cdc.gov/coronavirus/2019-ncov/symptoms-testing/share-facts.html.
16
7

of deaths in the United States were among adults 65 years and older. Well over a
quarter of Florida’s voting age population is over the age of 65.
31.

As of April 17, 2020, more than 600,000 Americans have contracted

COVID-19. Of that number, more than 40,000 people have died. The death toll in the
U.S. has increased to around 2,000 a day. Florida currently has nearly 26,000
confirmed cases of patients with COVID-19. Over 750 of those people have died.
These numbers likely understate the extent of the outbreak: Because of a lack of
available testing, most people do not get a coronavirus test unless they experience
severe symptoms, meaning many people with mild or no symptoms may have had
COVID-19 without ever being tested. The rate of infection is continuing to rise in
Florida and will likely be exacerbated by the reality that thousands of people fled the
New York City region to Florida following that state’s issuance of a “shelter-inplace” order. In addition, because of the lack of sufficient testing, it is difficult to
know who is an asymptomatic carrier of the virus who is passing it on to other
members of the community.
32.

The high level of uncertainty surrounding the virus and the percentage

of people of color in the state of Florida highlights the importance of preparing for
elections before the virus has spread further and to allow for the full implementation
of free, fair, nondiscriminatory measures that will ensure the right to vote for all
eligible Floridians.
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B.

Florida’s Failure to Take Adequate Precautions During the Presidential
Preference Primary in Response to the COVID-19 Crisis
33.

On March 1, 2020, Defendant DeSantis declared a public health

emergency in response to the COVID-19 crisis. Eight days later—just a week before
Florida’s Presidential Preference Primary (“PPP”) on March 17, 2020, Defendant
DeSantis declared a statewide state of emergency.
34.

On Friday, March 13, 2020, President Trump declared a national

emergency to begin mobilizing the extraordinary measures necessary to address the
rapidly expanding public health crisis. On Sunday, March 15, 2020, the Centers for
Disease Control and Prevention (“CDC”) issued guidance advising against
gatherings of 50 people or more for the next eight weeks and multiple states began
ordering the closure of restaurants and other establishments.
35.

On Monday, March 16, 2020—the day before the PPP—the White

House issued new guidance for the public to avoid all social groupings of 10 or more.
36.

Notwithstanding the Governor’s emergency declarations and the public

health advice from the federal government, Defendants made no accommodations for
the PPP to ensure Floridians could vote safely, without the need to gather in groups
at polling places.
37.

On March 9, 2020, after the deadline for requesting a mail ballot,

Defendant Lee issued a press release encouraging Florida voters to vote by mail, but

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she did not extend the request deadline or make any other accommodations to ensure
Florida voters could vote safely, without risk to their health and well-being.
38.

On Friday, March 13, 2020, the same day President Trump began

mobilizing the nation to combat the coronavirus, Defendant Lee, released a joint
statement with the chief election officials of Arizona, Illinois, and Ohio, confirming
that the scheduled PPP election would proceed on March 17, 2020, as scheduled.
39.

Despite the emergent circumstances, however, no adjustments to

election procedures were made to allow voters unable to vote at their assigned polling
places to more easily obtain or return vote-by-mail ballots and be sure they would be
counted; no accommodations were made for voters whose age or underlying health
conditions made them especially susceptible to the harmful effects of the disease,
leaving them with the Hobson’s choice of giving up their right to vote or risking
exposure through interaction with poll workers and other voters at potentially
crowded polling places.
40.

At the same time as Defendants were refusing to take action to make

vote-by-mail or other remote voting methods more available, voting in person at
polling places became much more difficult. In response to the COVID-19 outbreak,
Florida Supervisors of Elections (“SOEs”) closed, moved or consolidated at least 112
polling places in 22 counties, including many at assisted living facilities whose
residents are at more acute risk than the general population. Eight hundred poll
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workers withdrew from participating in the election in Palm Beach County due to
concerns about the pandemic, as did many others throughout the state. Subsequent to
the election, at least two poll-workers tested positive for the virus.
41.

Because of the Defendants’ failure to make appropriate and necessary

accommodations during the PPP, students from across the state, including Plaintiff
Williams, and others who were displaced due to school closures, had their right to
vote denied. Elderly, ill, and immunocompromised individuals, such as Plaintiff
Heller, and individuals who were self-quarantining in accordance with public health
guidance, such as Plaintiff Baez—faced with a choice between sitting out the election
and compromising their and their families’ and communities’ health and wellbeing—did not go out to the polls.
42.

The result was a dramatic reduction in turnout. Turnout among voters

registered to either of the major political parties—those permitted to participate in
those parties’ primaries under Florida’s closed primary system—was about 30
percent, as compared to 46 percent in the 2016 Presidential Preference Primary, and
41 percent in 2012, the last primary in which an incumbent president ran largely
uncontested in his party’s primary.
43.

Despite the low turnout and despite the fact that the vote-by-mail

deadline had already passed by the time state and federal officials began imposing
restrictions on public gatherings and recommending that vulnerable individuals stay
20

home, the number of ballots cast by mail reached record levels, threatening to
overwhelm Supervisors of Elections, many of whom do not have the personal or
infrastructure to handle the increased volume.
C.

COVID-19’s Continued Impact in Florida
44.

At the time of the PPP, there were approximately 140 confirmed cases

of COVID-19 in Florida and 4 people had died from the virus in the state. Since that
time, COVID-19 has spread rapidly in the state, to nearly 26,000 cases and over 750
deaths. As of today, infection rates are continuing to rise.
45.

In response to the virus’s spread Governor DeSantis has taken steps to

contain the virus, but Defendants still have done nothing to mitigate the impact of the
outbreak on Floridians’ ability to vote in the upcoming Congressional Primary on
August 18, 2020, and the Presidential Election on November 5, 2020.
46.

On April 1, 2020, Governor DeSantis signed Executive Order 20-91

which outlined the state’s stay-at-home policy. The Order took effect April 3 and will
last until at least April 30th. Executive Order 20-91 requires “[s]enior citizens and
individuals with a significant underlying medical condition (such as chronic lung
disease, moderate-to-severe asthma, serious heart conditions, immunocompromised
status, cancer, diabetes, severe obesity, renal failure and liver disease)” to “stay at
home and take all measures to limit the risk of exposure to COVID-19.” 8 The order

8

Fla. Exec. Order No. 20-91 (Apr. 1, 2020).
21

also requires local jurisdictions to “ensure that groups of people greater than ten are
not permitted to congregate in any public space.” 9
47.

Public health experts report that the nation’s current ability to test for

the virus is woefully insufficient to allow for easing these restrictions any time soon
without risking a second wave of infections. And they say that even if the virus
subsides with the warmer summer weather, a recurrence of COVID-19 in the fall is
“likely.” In such an event, voters in November’s Presidential General Election could
face the same rapidly changing circumstances that resulted in disruption and
disenfranchisement in the Presidential Preference Primary
48.

But, despite ordering them to stay at home, Governor DeSantis has taken

no steps to make it possible for vulnerable Floridians to vote at home. Nor has he or
any of the other Defendants explained how proceeding to hold elections according to
business as usual—with voting and voter registration taking place at early voting
sites, precinct polling places, and SOE offices—can be done without violating
restrictions on gatherings of 10 or more Floridians in public places—restrictions
which are necessary, and will remain necessary for the foreseeable future, to maintain
public health and prevent further spread of and additional deaths from COVID-19.

Id.; The federal government has also urged Americans to adhere to and expand
community mitigation efforts. Across the United States, about 316 million people
in at least 42 states the District of Columbia and Puerto Rico have been ordered not
to leave their homes for work, school, or for any non-emergency reason.
22
9

D.

Voter Registration Has Come to a Near Standstill in Florida.
49.

Florida SOEs are reporting only a trickle of voter registrations coming

through mail and online.
50.

Individuals are currently unable to easily obtain paper applications as

state offices across Florida that normally offer hard-copy voter registration forms or
in-person voter registration services are closed or inaccessible. Public libraries, SOE
offices, the Department of Highway Safety and Motor Vehicles (“DHSMV”), and
other public agencies designated under the National Voter Registration Act
(“NVRA”), are all closed or operating at severely reduced capacity in accordance
with orders and guidance issued by Defendants, but Defendants have taken no steps
to ameliorate the devastating impact these closures have had on the availability of
voter registration services.
51.

Many individuals are also unable to obtain a paper application through

other means. Though the application is available online, low income voters, including
many in communities of color, lack internet access or a printer at home. Many rely
on community resources such as the public library for access to the internet and for
printing. With the COVID-19 crisis, those resources are not available. Although retail
printing services might normally make it possible to print a downloaded voter
registration application, most such services, not being designated essential, are
currently closed, and even if these service were available, voters with heightened
23

COVID-19 vulnerabilities would have to risk their health in order to avail themselves
of them. Without access to the internet or a printer, using the online voter registration
form is out of reach for many voters.
52.

Moreover, paper applications are not postage pre-paid, and in an era of

email and automatic online bill paying, many people no longer keep stamps at home.
And with some post offices closed and with social distancing orders in place, the
simple act of buying a stamp to mail a voter registration form has become a challenge
for many.
53.

Third-party voter registration efforts, normally a robust source of voter

registration services in Florida, have almost entirely ceased. Unable to field their
volunteers for door-to-door campaigns or large-scale voter registration events due to
the pandemic, organizations such as Plaintiffs NewFM, Organize Florida, and Dream
Defenders have been forced to halt their voter registration efforts. Since March 13,
2020, Organize Florida has pulled its approximately 70 canvassers from in-person
registration efforts in 9 Florida counties and diverted them to COVID-19 community
response. Similarly, starting March 20, 2020, NewFM diverted its 200+ canvassers
from in-person registration in 6 Florida counties and moved them to phone calls for
wellness checks.

24

E.

Florida’s Online Voter Registration System Is Unduly Burdensome,
Particularly for Communities of Color
54.

With limited access to paper and downloadable voter registration forms

of limited utility for many voters during the COVID-19 pandemic, Florida’s online
voter registration (“OVR”) system is currently one of few accessible means for voters
to register. OVR’s numerous restrictions and limitations, however, prevent it from
being a viable option for many Florida residents and make running third-party voter
registration drives much more labor intensive and less effective.
55.

To complete a voter registration through the OVR system, the would-be

voter must have a driver’s license or identification card issued by DHSMV. The
driver’s license or identification card number is used both to verify the voter’s
identity and to obtain the voter’s signature. Those that do not have a driver’s license
or identification card, including many of those served by Zebra Coalition, cannot
complete registration process through the OVR system. Instead, the system will
produce an electronic voter registration form, which the voter must print, sign, and
mail to the county SOE or Secretary of State. Because homeless and housing insecure
voters and voters of color are less likely to have identification issued by the DHSMV,
they are more likely to encounter this obstacle with online registration.
56.

For the reasons described above, many voters, especially those who lack

stable housing and those in low income communities, are simply unable to print and
mail a voter registration application from the OVR system.
25

57.

Even when a voter has a valid DHSMV credential, the OVR system

makes it difficult or impossible for voters to detect and correct errors in their
applications. Voters who register using a paper form are notified if their application
is incomplete or if errors are found, and they are provided an opportunity to make
corrections. When the OVR system identifies an error, the voter is not notified.
Instead, the OVR system switches to producing the same printable, mailable
registration application it produces for those who lack the required identification. For
example, if a voter mistypes her birthdate, the OVR system will refuse to complete
the application online but will not notify the voter of the reason. If the voter is able
to print and mail or hand-deliver the application—and for the reasons explained
above, many cannot—the error will eventually be identified when the SOE processes
the form, and only then will the voter possibly have an opportunity to correct it.
58.

In addition, the OVR systems regularly experiences technical

breakdowns which cause it to stop functioning and go offline for several hours and
as much as an entire day. As recently as March 30, 2020, the OVR system reportedly
experienced “intermittent issues” that prevented many Floridians form registering,
and in 2018, the system crashed under the weight of increased voter registration
activity just before the October registration deadline for the 2018 mid-term election.
During the coronavirus pandemic, unlike 2018, when OVR goes offline, potential

26

voters are left with no means of registering to vote at all, and voters frustrated in their
attempts to register through the system often do not return for another try.
59.

These limitations on OVR pose significant obstacles for the voter

registration efforts of Plaintiffs NewFM, Organize Florida, Zebra Coalition, and
Dream Defenders. When these organizations are able to resume their registration
efforts, they will be limited to simply assisting with online registration.
60.

Organize Florida plans to direct individuals to its website, which will

connect to the state’s OVR system. But because many voters will be unable to
complete the registration process online, Organize Florida will utilize a new “chase”
system to ensure that people are actually successful in completing their registration.
The “chase” program will involve organizers checking the voter registration system
to see if the individuals they register make it onto the rolls, calling the individuals
who do not register successfully, asking a series of questions to figure out what was
wrong with the person’s registration application, and then helping the person correct
their application and submit it again. Moreover, the larger number of voters Organize
Florida and other organizations will be directing to OVR will increase demands on
the system, and may lead to more frequent breakdowns, further hindering the
organization’s voter registration efforts.
61.

Adding this process to Organize Florida’s work will create additional

demands on its time and resources. The chase process will also result in the
27

organization processing significantly fewer voter registration applications than in
previous years. With normal canvassing, Organize Florida processes approximately
2 to 2.5 applications every hour and over 3,000 applications on average each month.
Without the ability to conduct in-person registration and with the need to follow up
with every voter to ensure they become registered because of the limitations of OVR,
Organize Florida will be able to reach far fewer voters this year.
62.

Similarly, NewFM normally processes 3,000-5,000 voter registration

forms per month. Significantly fewer people will be able to register through the
online system because they lack a Florida driver’s license, so NewFM will likewise
implement a “chase” program to ensure that people unable to complete their
registrations through OVR actually make it onto the voter rolls. NewFM plans to
dedicate over a quarter of its canvassers to conducting the “chase” program as a
means of ensuring OVR works for its members, diverting canvassers who would
normally be out registering additional voters in the communities NewFM serves.
F.

Florida’s Limits on Voting by Mail Unduly Burden the Right to Vote.
63.

At a time when many voters are confined to their homes or to shelters

due to stay-at-home orders and vulnerability to severe health consequences from
COVID-19, stringent limitations and restrictions on voting by mail—and
Defendant’s failure to alleviate them—are unwarranted and will deprive many

28

Floridians, including individual Plaintiffs and members of organizational Plaintiffs,
of their fundamental right to vote.
64.

Moreover, even when the rules don’t prevent them from voting by mail,

voters of color and young voters face disproportionate rates of rejection of their VBM
ballots in Florida. A recent study of mail ballot rejection rates in Florida during the
2018 General Election found that African American and Latinx voters were more
than twice as likely as White voters to have their ballots rejected. Voters in the 18-21
age bracket were nearly 5 times as likely to have their ballots rejected as voters in the
45-64 age bracket. Military and overseas voters also faced higher than average
rejection rates. With more voters dependent on voting by mail as a means of reducing
the risks of contracting COVID-19, Defendants’ failure to make changes to mail
ballot procedures to address these disparities will result in widespread
disenfranchisement among voters who are already under-represented in the
electorate.
65.

A Florida voter can request a vote-by-mail (“VBM”) ballot in person at

the SOE’s office, by telephone or mail, or by applying online through the SOE’s
website. voter may also designate certain close family members or a legal guardian
to request a VBM ballot on the voter’s behalf.
66.

To have a ballot sent to an address other than the address where the voter

is registered, the request must be in writing and must be signed by the voter.
29

Telephonic or online requests and requests signed only by a family member are not
permitted.
67.

Voters displaced from their homes due to the coronavirus pandemic,

such as Plaintiff Williams and many members of organizational Plaintiffs, cannot
receive a ballot at the address where they are registered. To request a ballot, such
voters must either travel to the SOE’s office to apply for a VBM ballot in person, in
violation of stay-at-home orders, or must submit their VBM ballot requests by mail,
which necessitates that they have a printer to print the application and that they pay
postage. Plaintiff Williams and many other Floridians, including college and
university students whose campuses have shut down, have been forced to leave the
state and are therefore unable to request a VBM ballot in person, leaving mail as their
only option.
68.

Florida makes an exception to the signature requirement for uniformed

and overseas voters, who may receive a mail ballot at an alternate address without a
signed, written request. Most of those who have been displaced by the COVID-19
crisis do not qualify for this exception.
69.

Vote by mail ballots are generally delivered by non-forwardable, return-

if-undeliverable mail to the address on file with the SOE or to the address in the
signed VBM request. Voters may also request to pick up their VBM ballots in person
at the SOE’s office, which they can do starting nine days before the election.
30

Uniformed service-members and overseas voters have additional options for delivery
of their VBM ballots not available to other VBM voters: They may request that their
VBM ballot be delivered by email or fax.
70.

To be timely, VBM ballot requests must be received by the SOE no later

than 10 days before the election. Florida offers a limited ability for voters to request
a mail ballot after the deadline in emergency circumstances, but in the context of the
COVID-19 crisis, it is insufficient to prevent the disenfranchisement of Florida
voters, especially without adjustments to many of Florida’s other restrictions on
voting by mail. If emergency circumstances arise after the deadline that will prevent
the voter from voting at her assigned polling place, Florida allows an application for
a vote by mail ballot to be made in person at SOE’s offices, but only on election day.
To receive a VBM ballot, the voter must complete a VBM ballot request form and,
separately, an affidavit explaining the emergency circumstances preventing the voter
from voting at the polls. In some counties, the voter must provide additional
documentation of the emergency, such as a doctor’s note.
71.

During the PPP, voters with underlying health conditions or whose age

made them particularly vulnerable to COVID-19 were unable to avail themselves of
an exception that required an in-person visit to the SOE’s office. The very emergency
that prevented them from voting at their assigned polling place also prevented them
from going to the SOE’s office to obtain and then return a mail ballot. Moreover,
31

requiring each voter to execute an affidavit documenting an emergency that was
declared by public health officials and affects everyone in the state will lead to longer
times for completing the VBM request process—at a time when people are being
advised to avoid all but necessary trips away from their homes—and presents an
unnecessary burden on vulnerable voters. And additional requirements, such as a
doctor’s note, are even more unnecessary and, at a time when healthcare providers
are already overburdened and healthy people are being asked to refrain from nonessential procedures, particularly ill-advised.
72.

Voters can designate another person to obtain their emergency VBM

ballot on election day. In that case, the voter must complete and sign a designation
form appointing the designee, as well as the emergency ballot affidavit. The designee
must also complete and sign an affidavit affirming that they are authorized to pick up
the VBM ballot for a specified voter.
73.

Designees are limited to obtaining ballots for up to two non-family-

members. Some counties impose even tighter restrictions. For example, in MiamiDade County, a designee may only obtain ballots for two other voters, even if they
are family members, and may only obtain one ballot for a non-family member. Not
all voters have family members or others nearby who can retrieve their ballot for
them, and at this time of pandemic, many are unwilling to put others at risk. In
addition, as a result of this rule, institutions such as churches, as well as
32

organizational Plaintiffs, which in normal circumstances provide assistance to voters
to help them get to the polls and vote, are unable to effectively get out the vote among
their members and constituents. Moreover, limiting the number of ballots any one
person can pick up means more people will be going to SOE’s offices to obtain ballots
for vulnerable voters, in violation of public health recommendations.
74.

During a situation where circumstances are changing as rapidly as they

have during the COVID-19 pandemic, limiting emergency ballot requests to election
day, limiting the number of ballots third parties can pick up for vulnerable voters, and
mandating

unnecessary

and

duplicative documentation

requirements,

are

unreasonable and unjustified burdens on the right to vote, and will present a nearly
insurmountable barrier to many voters, as it did for Plaintiffs and their members
during the Presidential Preference Primary. Given the likelihood of a resurgence of
COVID-19 in the fall, according to public health officials, Florida’s stringent
emergency VMB request procedure will very likely again lead to the
disenfranchisement of thousands of Floridians.
75.

To be counted, a VBM ballot must be received at the SOE’s office by 7

p.m. on Election Day. This means voters wishing to return their ballots by mail must
calculate how long it will take for the Postal Service to deliver the ballot and mail
early enough that it will be delivered by election day. Except for envelopes
designated for military and overseas voters, mail ballot return envelopes are, in most
33

Florida counties, not postage pre-paid, necessitating that the voter obtain postage. In
some cases, mail ballot envelopes need additional postage beyond standard first-class
mail postage. In at least one county, the amount of postage required depends on
whether the voter has accurately followed the instructions on how to fold the return
envelope.
76.

Voters may also return their ballots in person at the SOE’s office or drop

off the VBM ballot at a designated secure drop box for early voting sites in the
elector’s county. Drop boxes are generally located only at early voting sites during
the early voting period and at the SOE’s office. On election day, the only drop box is
typically located at the SOE’s office.
77.

Military and overseas citizens have options for returning their ballots

that are not available to other voters. In addition to the return methods available to all
voters, these voters can return their VBM ballots by mail or fax to the county
Supervisor of Elections or to a fax number provided by the Federal Voting Assistance
Program of the Department of Defense. Florida also grants military and overseas
voters additional time for the return of their ballots: VBM ballots cast by these voters
are counted as long as they are postmarked or dated by Election Day and received
within 10 days after the election.
78.

The state’s process for curing signature-match issues will disenfranchise

voters. To be counted, the VBM ballot envelope must be signed by the voter and the
34

signature must match the voter’s signature in the registration books. If the signature
is missing or if the SOE or the county canvassing board determines that a voter’s
signature does not match the signature in the registration books, the SOE is required
to notify the voter of the signature deficiency. Canvassing board members and SOE
staff responsible for verifying signatures are not required to undergo any training in
handwriting analysis or signature verification.
79.

The voter is given the opportunity to “cure” the deficiency by

completing and submitting to the SOE a “cure affidavit” and any of several specified
forms of identification. If the voter’s signature on the cure affidavit matches the
signature on the absentee ballot but not the signature on the voter roll, the ballot will
still be rejected unless the voter has provided one of a narrower set of identification
documents that bear the voter’s photograph. No explanation of this more stringent
identification requirement is included in the statutorily prescribed cure instructions,
however. In addition, the cure notice is not required to include the cure instructions
or affidavit. Rather, it only refers the voter to the instructions on the SOE’s website.
80.

The cure affidavit may be submitted in-person or by mail, fax or email,

and must be received by the SOE by 5 p.m. on the 2nd day after the election. The
cure affidavit is not postage prepaid. To avoid having to deliver the affidavit in
person, however, the voter must have internet access at home and a printer to print
the affidavit, a scanner, copier, or smart phone to make a copy of the required
35

identification document, and a postage stamp. Moreover, as a practical matter, unless
the voter is notified of the problem before election day, submitting the affidavit by
mail risks that it will not arrive in time. To avoid that risk, the voter would also need
access to email or a fax machine.
81.

Not surprisingly, Florida’s vote by mail procedures disproportionately

exclude African American and Latinx voters and young voters, among other groups.
The very short “cure” period—spanning the two weekdays following an election—
and the requirement that the cure affidavit be delivered during business hours poses
an obstacle to many working people. Studies show that young voters are more likely
to have variations in their signatures, making them more likely to have their ballots
rejected.
82.

Throughout Florida, many homes in rural areas do not have addresses

or have “non-traditional addresses” that do not use a street name. The postal service
does not deliver to these addresses, so voters in these areas cannot receive ballots at
their homes. Likewise, homeless and housing unstable voters, including many of
those served by Zebra Coalition, cannot receive mail where they live.
83.

Voters who lack home mail delivery may request that their VBM ballot

be sent to a P.O. Box or homeless shelter rather than their place of residence, ruling
out telephonic and online VBM requests because of Florida’s signature requirement.
In addition, rural post offices can be remarkably far and run limited hours. P.O. Boxes
36

cost money and require valid identification to open an account. Sometimes there are
not enough boxes to service a community, so friends and families share them,
increasing the likelihood of lost ballots and missed rejection notifications, problems
also faced by those who receive mail at group quarters such as shelters. Moreover,
rural mail is often delayed due to complicated mail routing, increasing the likelihood
of missed deadlines.
84.

Many disabled voters, such as Plaintiffs Young, are entirely excluded

from using vote by mail unless they are willing to compromise the secrecy of their
ballots—a choice other voters do not have to make.
G.

Voters with Disabilities Face Unnecessary Obstacles to Exercising Their
Right to Vote on an Equal Footing with Other Voters During the
COVID19 crisis.
85.

About one in six voting-age Americans live with a disability, and voters

who are blind, low vision, or have another print disability or live with physical,
intellectual or developmental disabilities require in-person accommodations at
polling places or other voting sites to vote privately and independently. For example,
voters who are blind, low vision, or have another print disability need access to
accessible voting equipment, including audio ballots or touch screens with enlarged
text. Voters with manual impairments making it difficult to hand-mark a paper ballot
also require assistive technologies to vote independently and privately. In Florida,

37

however, electronic assistance mechanisms, such as Ballot Marking Devices, are
exclusively available at in-person voting locations.
86.

During the COVID-19 pandemic voters with disabilities face an

unreasonable risk of contracting COVID-19 at the polls or on their way to polling
locations. The accessible machines depend on touch screens or other manual input
devices and, in some cases, headphones. This equipment and seating to use it may
carry the COVID-19 virus from previous users and poll workers. Visual markers on
the ground instructing voters to line up six feet apart from each other and poll workers
are not accessible to blind and limited vision voters. Disabled voters who cannot drive
face reduced service from paratransit and commercial ride-share vehicles the need to
share a vehicle with drivers and other passengers, potentially exposing voters to the
COVID-19 virus.
87.

Voters with disabilities who are unable to vote in a precinct polling

location or early voting site have few alternative voting options and some are
completely deprived of any alternative voting methods. Florida does not offer
curbside voting to voters whose disabilities prevent them from going into an inperson voting location. And many voters with disabilities are unable to avail
themselves of the option of voting by mail.
88.

Although Florida law specifically requires the Secretary of State and

SOEs to “develop and implement procedures and technologies ... for providing vote38

by-mail ballots, upon request, in alternative formats that will allow all voters to cast
a secret, independent, and verifiable vote-by-mail ballot without the assistance of
another person,” on information and belief, no Florida county currently provides mail
ballots in such alternative formats. Overseas and uniformed services voters have
electronic ballot delivery options, but those options are not accessible to voters with
visual impairments and in any event are not available to voters who want to vote from
home in Florida. The result is that voters who cannot use a standard paper ballot
without assistance, such as low vision voters, cannot vote by mail without
compromising their independence and the secrecy of their ballots.
89.

Voters with disabilities are also more likely to have their signatures

change over time and to have their ballots rejected based on a signature mismatch.
For example, Plaintiff Romero, who suffers from MS and a stroke, can no longer sign
his name at all.
H.

Language-Minority Voters Should Not be Forced to Compromise their
Health in Order to make an Informed Vote
90.

According to the U.S. Department of Justice, Civil Rights Division,

approximately 2,107,585 Floridians are limited English proficient.
91.

After the 2010 census, the Director of the Census designated the entire

state of Florida as subject to the requirements of Section 203 of the Voting Rights
Act for Spanish. The Census coverage determination is final and non-reviewable
therefore Florida is mandated to provide statewide issued/produced voter
39

registration-voting materials in Spanish. Because Florida is subject to the
requirements of Section 203, "any statewide registration or voting notices, forms,
instructions, assistance, or other materials or information relating to the electoral
process" that Defendants provide in English must also be furnished in Spanish.
92.

Although the Division of Elections’ website provides a Google translate

option to provide the information contained on the web pages in Spanish-language,
the very first bullet point, under instructions directing a voter on how to request a
vote-by-mail ballot, instructs the user to their respective Supervisor of Elections
website. Clicking on that link leads the user to a Florida Department of State,
Division of Elections administered landing page which contains English-only
information with no translation or Spanish-language version option available.
93.

The voter must then click on their respective Supervisor of Elections

website on this English-only page which navigates the user to a SOE administered
webpage which may only be available in English. Although the statewide issued
forms to request a VBM ballot, designee form and how to cure a signature mismatch
are translated to Spanish and are available on the Division of Elections website, the
Spanish-language version of the forms may not be accessible to a Spanish-language
dominant voter via their respective Supervisor of Elections website, if none of the
webpages are translated to Spanish. Based on information and belief, neither the

40

Union County or Liberty County websites contain any information or link to the
Spanish version of the VBM related documents.
94.

Based on information and belief, there are additional Florida counties

who provide English only VBM ballots, instructions and related materials and do not
offer Spanish-language assistance to help voters who are unable to speak English.
This results in unequal treatment of limited English proficient voters and a violation
of Section 203. Compliance with the law on behalf of these voters is made exigent
by COVID-19
95.

The same obstacles present to disabled voters, affect Spanish-language

dominant voters who are unable to vote in-person because of COVID-19 related
health risks. Although there are currently 13 Florida counties subject to Section 203
coverage which are required to provide Spanish-language materials and assistance at
the polling locations, these same services will not be available to voters who are
unable to avail themselves to vote in-person because of COVID-19 related health
risks, such as Plaintiffs Romero and Hernandez Morales.
I.

Supervised Voting at Group Quarters Facilities for Elderly and Other
Vulnerable Floridians Is Insufficiently Available.
96.

Under Florida law, SOEs may, on their own initiative or at the request

of a facility administrator, offer supervised voting at an assisted living facility or
nursing home. Under this system, two poll workers take voting equipment to the
facility to allow residents to vote without having to leave the facility.
41

97.

Voters living in independent living facilities or other group quarters are

not eligible for supervised voting under existing rules. In the current health crisis,
however, residents of these facilities, many of which are designed for and restricted
to elderly residents or others with specific health care needs, face significant health
risks if they are required to vote in person at precinct polling places and many face
obstacles to voting by mail.
CLAIMS FOR RELIEF
COUNT ONE
Undue Burden on the Right to Vote in Violation
of the Fourteenth Amendment
98.

Plaintiffs reallege and reincorporate by reference all prior paragraphs of

this Complaint and the paragraphs in the counts below as though fully set forth herein.
99.

This Court has the authority to enter a declaratory judgment and to

provide preliminary and permanent injunctive relief pursuant to Rules 57 and 65 of
the Federal Rules of Civil Procedure and 28 U.S.C. §§ 2201 and 2202.
100. Under the First Amendment and the Equal Protection Clause of the
Fourteenth Amendment, a court considering a challenge to a state election law “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
42

necessary to burden the plaintiff’s rights.’” Burdick v. Takushi, 504 U.S. 428, 434
(1992) (quoting Anderson v. Celebrezze, 460 U.S. 780, 789 (1983)).
101. Unless Plaintiffs are granted the relief requested, the right to vote of
thousands of Floridians, including the Individual Plaintiffs and Organizational
Plaintiffs’ members and constituents, will be severely burdened (if not eliminated
entirely) in the Primary Election on August 18, 2020, and the General Election on
November 5, 2020.
102. Because of the crisis created by COVID-19, many Floridians, including
Plaintiffs Heller, Hernandez Morales, Romero, Baez, and Young, are confined to
their homes, and because of the uncertainty over when the crisis will have abated
sufficiently to lift the stay-at-home restrictions or whether a fall resurgence of
COVID-19 will require re-imposing them, these Floridians face a significant
likelihood that they will be unable to vote in-person at their precinct polling locations
or unwilling to do so in the face of significant risks to their health.
103. For vulnerable individuals, including Plaintiffs Romero, Hernandez
Morales, Heller, and the at-risk youth served by Zebra Coalition, appearing in person
at either the Supervisor of Elections office or the polls would subject them to
unreasonable health risks because of their age or underlying health conditions, even
if conditions improve enough for healthier Floridians to return to more normal
activities.
43

104. Others, including thousands of students at Florida colleges and
Universities such as Plaintiff Williams, have been sent away from their homes, with
no indication when they will be able to return.
105. Organizational Plaintiffs Dream Defenders, New Florida Majority,
Zebra Coalition, and Organize Florida all have members or serve communities who
are similarly situated to these individual Plaintiffs.
106. Without accommodations such as extending early voting days, hours,
and locations and curbside voting which would allow them to vote while maintaining
necessary social distancing, or expanded availability of supervised voting which
would allow them to vote without leaving their residences, in-person voting is likely
to be unavailable or unreasonably risky for these voters.
107. Moreover, they face unnecessary and severe obstacles to their only
alternative means of exercising their right to vote this year: voting by mail.
108. Requiring voters who are displaced or have unreliable access to mail to
submit a written and signed request—which can only be done in person or by mail—
in order to have their ballot sent to where they are living or where they can receive
mail is unduly burdensome and unjustified in circumstances where request forms are
more difficult to access, postal service is less available, and unnecessary in-person
visits to SOE’s offices are ill-advised even for healthy voters let alone voters who
face serious health consequences from exposure to COVID-19.
44

109. In rapidly changing circumstances such as those seen during the PPP
and likely to be seen again through much of the rest of the year, Florida’s emergency
VBM process is unduly stringent. Requiring voters facing risks from COVID-19 to
appear on election day to request a VBM ballot when the emergency circumstances
are there for all to see in the days before the election and limiting the number of
ballots designees can obtain for other voters will result in larger numbers of voters
and designees appearing at SOEs offices on election day, which will violate social
distancing guidelines and overwhelm the reduced staffing SOEs are currently
working with.
110. Additionally, limiting the number of voters for whom a non-family
member may pick up ballots, will prevent many voters from obtaining ballots at all,
particularly vulnerable voters such as Plaintiffs Heller, Romero, and Hernandez
Morales who depend on assistance from others to avoid unnecessary social contact
that could threaten their health.
111. And the failure of the state to offer an accessible means of voting by
mail to voters with disabilities likewise constitutes a severe burden on the right to
vote, because for many such voters, it means they won’t be able to vote at all.
112. The ballot return deadline, depending as it does on the vicissitudes of
postal delivery in a time where all public services are stretched instead of a clear

45

criteria such as a postmark, has resulted and will likely continue to result in the
rejection of many mail ballots even though they were promptly returned.
113. Likewise, the very short cure period, the incomplete cure instructions,
limited cure opportunities, and the arbitrary signature verification process when mail
is moving slowly—likely to slowly for voters to meet the cure deadline even when
they act immediately after being notified of a deficiency—and when voters are unable
to deliver cure affidavits in person without risk to their health constitutes an undue
burden on the right to vote in the circumstances the country is currently facing, and
is unjustified by any legitimate election administration purpose.
114. Defendants’ failure and refusal to make adjustments to these voter
registration and in person and vote-by-mail rules will likely deprive thousands of
Floridians, including Plaintiffs, their members, and members of their communities of
the opportunity to vote in the remaining 2020 elections, in violation of their rights
under the First and Fourteenth Amendments.
115. Under these circumstances, the State’s enforcement of vote-by-mail
request requirements and delivery deadlines, as well as restrictions on emergency
voting, and curing signature deficiencies, and its failure to accommodate voters who
are particularly vulnerable to COVID-19 by offering curbside voting, additional early
voting and supervised voting, accessible vote-by-mail ballots, ballots in voters’

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preferred languages, and greater access to online voter registration constitute a severe
and undue burden on the right to vote.
116. Defendants have no sufficient justification for their refusal to make
changes to Florida’s vote-by-mail rules to accommodate the significant challenges
voters face as a result of the COVID-19 crisis.
COUNT TWO
Abridging or Denying the Right to Vote on Account of Race
in Violation of § 2 of the Voting Rights Act of 1965
(52 U.S.C. § 10301)
117. Plaintiffs reallege and reincorporate by reference all prior paragraphs of
this Complaint and the paragraphs in the counts below as though fully set forth herein.
118. Section 2 of the Voting Rights Act provides in pertinent part:
No voting qualification or prerequisite to voting or standard, practice, or
procedure shall be imposed or applied by any State or political subdivision
in a manner which results in a denial or abridgement of the right of any
citizen of the United States to vote on account of race or color . . . .
52 U.S.C. § 10301(a).
119. Florida’s current voter registration and vote by mail process has had
and—if this Court does not institute the remedies that Plaintiffs request—will
continue to have, an adverse and disparate impact on communities of color. These
measures impose a discriminatory burden on African American and Latinx voters
and they “have less opportunity than other members of the electorate to participate in
the political process.”

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120.

Regarding vote by mail, communities of color experience higher levels

of ballot rejections. Because of Florida’s vague and unreasonably short mail ballot
return deadline, and because of the state’s restrictive cure requirements as well as the
discretion of SOEs and county canvassing boards with respect to arbitrarily reject
voter’s signatures, the VBM ballots cast by Black, Hispanic, and other racial and
ethnic minorities were more than twice as likely to be rejected as VBM ballots cast
by white absentee mail voters in 2018, and with the increased barriers voters face in
complying with these strict requirements due to the coronavirus pandemic, these
disparities are likely to be aggravated.
121. Moreover, the lack of voter registration opportunities due to the declared
state of emergency prevents Floridians from registering to vote and prevents
organizational plaintiffs from registering persons to vote.

The closures of all

nonessential entities, including the Department of Motor Vehicles and the Supervisor
of Elections offices make it burdensome and nearly impossible for organizations such
as organizational Plaintiffs to conduct third-party voter registration drives, which
large numbers of voters of color.
122. Additionally, the OVR system is unduly burdensome to voters who lack
printers or the requisite voter identification to register online—disproportionately
Black and Latinx voters.

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123. This burden is connected to historical and social conditions of
discrimination. Under the totality of circumstances, Florida’s African American and
Latinx voters have had and will continue to experience less of an opportunity to
participate in the electoral process due to Defendants failure to adequately address
the impact on the right to vote from the spread of COVID-19, the inability to register
to vote, and the disproportionate rejection rate of VBM ballots from communities of
color.
124. These disparities constitute a violation of § 2 of the Voting Rights Act.
Unless enjoined by this Court, Defendants will continue to violate Section 2 of the
Voting Rights Act, by enforcing standards, practices, or procedures that deny African
American and Latinx the opportunity to participate effectively in the political process
on an equal basis with other members of the electorate.
COUNT THREE
Failure to Provide Reasonable Accommodations in Violation of
Title II of the Americans with Disabilities Act (42 U.S.C. §§ 12131, et seq.)
125. Plaintiffs reallege and reincorporate by reference all prior paragraphs of
this Complaint and the paragraphs in the counts below as though fully set forth herein.
126. Under Title II of the Americans with Disabilities Act, state and local
governments must not impose requirements on participation in public services,
programs, or activities, including voting, that screen out individuals with disabilities
from fully and equally enjoying those programs and must make reasonable
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modifications in policies, practices, or procedures, including voting and election
procedures, when the modifications are necessary to avoid discrimination on the basis
of disability.
127. Individuals who suffer a significant medical vulnerability that places
them at extremely high risk of serious bodily injury or death should they leave the
confines of their homes—including Plaintiffs Hernandez Morales and Romero whose
health conditions puts them at significant risk of severe illness or death should they
contract COVID19—have a disability within the meaning of the ADA.
128. Plaintiff Young is blind and has a disability within the meaning of the
ADA.
129. Defendants’ failure and refusal to extend the vote-by-mail deadlines;
expand availability of emergency vote-by mail procedures; expand the methods for
requesting, obtaining, and returning vote-by-mail ballots; and adopt safe and
accessible methods of in-person voting constitute a failure to make a reasonable
accommodation for those, such as Plaintiffs Heller, Romero, and Hernandez Morales,
whose health and age limit their ability to have contact with others in this time of
public health emergency created by COVID-19.
130. Defendants’ failure to offer VBM ballots in a form that is accessible to
blind or low-vision voters or voters with manual impairments limiting their ability to
mark a paper ballot, despite requirements in Florida law mandating that they do so
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and when the necessary technology is readily available, likewise constitutes a failure
to make a reasonable accommodation for voters such as Plaintiffs Young and
Romero, who need such accommodations in order to independently and
confidentially cast a VBM ballot.
131. The failure to accommodate these voters constitute a condition on access
to the ballot box that has the effect of screening out such individuals from
participating in the August 18, 2020, Primary Election and the November 5, 2020,
General Election, in violation of Title II of the Americans with Disabilities Act.
COUNT FOUR
Failure to Provide Reasonable Accommodations
in Violation of Section 504 of the Rehabilitation Act
(29 U.S.C. § 794)
132. Plaintiffs reallege and reincorporate by reference all prior paragraphs of
this Complaint and the paragraphs in the counts below as though fully set forth herein.
133. Under Section 504 of the Rehabilitation Act, federally funded programs,
including state and local programs related to elections and voting, must not
discriminate against individuals with disabilities and must make reasonable
accommodations to allow individuals with disabilities to access the federal funded
program, activity, or service.
134. Individuals who suffer a significant medical vulnerability that places
them at extremely high risk of serious bodily injury or death should they leave the
confines of their homes—including Plaintiffs Hernandez Morales and Romero whose
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health conditions puts them at significant risk of severe illness or death should they
contract COVID19—have a disability within the meaning of the ADA.
135. Plaintiff Young is blind and has a disability within the meaning of the
ADA.
136. Defendants’ failure and refusal to extend the vote-by-mail deadlines;
expand availability of emergency vote-by mail procedures; expand the methods for
requesting, obtaining, and returning vote-by-mail ballots; and adopt safe and
accessible methods of in-person voting constitute a failure to make a reasonable
accommodation for those, such as Plaintiffs Heller, Romero, and Hernandez Morales,
whose health and age limit their ability to have contact with others in this time of
public health emergency created by COVID-19.
137. Defendants’ failure to offer VBM ballots in a form that is accessible to
blind or low-vision voters or voters with manual impairments limiting their ability to
mark a paper ballot, despite requirements in Florida law mandating that they do so
and when the necessary technology is readily available, likewise constitutes a failure
to make a reasonable accommodation for voters such as Plaintiffs Young and
Romero, who need such accommodations in order to independently and
confidentially cast a VBM ballot.
138. The failure to accommodate these voters constitute a condition on access
to the ballot box that has the effect of screening out such individuals from
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participating in the August 18, 2020, Primary Election and the November 5, 2020,
General Election, in violation of Section 504 of the Rehabilitation Act.
COUNT FIVE
Failure to Provide Spanish-language Voting Materials and Assistance
in Violation of Section 203 of the Voting Rights Act of 1965
(52 U.S.C. § 10503)
139. Plaintiffs reallege and reincorporate by reference all prior paragraphs of
this Complaint and the paragraphs in the counts below as though fully set forth herein.
140. The state of Florida became a covered jurisdiction under Section 203 of
the Voting Rights Act on October 13, 2011 for Hispanic minority group, Spanish
language.
141. Section 203 requires covered states or political subdivisions to provide
any registration or voting notices, forms, instructions, assistance, or other materials
or information relating to the electoral process, including ballots... in the language of
the applicable minority group as well as in the English language. 52 U.S.C. §
10503(c). Defendants failure to provide VBM ballots, related instructions and
documents to request VBM ballots and other statewide issued electoral materials in
Spanish-language as provided to English-language voters contravenes the law which
requires Spanish-language dominant voters receive materials and assistance needed
to make an informed vote.

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142. Plaintiffs Romero and Hernandez Morales are Spanish-language
dominant voters requiring language assistance and materials in order to cast an
informed vote.
143. Defendants’ failure to offer Spanish-language VBM ballots statewide to
Spanish-dominant voters despite requirements mandating that they do so constitutes
a failure to provide materials necessary for voters such as Plaintiffs Romero and
Hernandez Morales, who need Spanish-language ballots, related materials and
assistance in order to independently and confidentially cast a VBM ballot.

REQUEST FOR RELIEF
Wherefore, Plaintiffs respectfully request this Court enter judgment:
a.

Preliminarily and permanently enjoining Defendants to undertake
emergency actions with respect to any election in the state affected by
the COVID-19 pandemic;

b.

Ordering Defendants to implement measures to ensure eligible
Floridians are able to register to vote, including:
i. conducting outreach to unregistered and inactive voters offering the
opportunity to register to vote or update their voter registrations
prior to the voter registration deadlines for the August 18, 2020, and
November 5, 2020, elections;
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ii. ensuring Florida’s online voter registration system has sufficient
capacity to accommodate the increased number of voters who will
need to register to vote or update their voter registrations through
the system;
iii. allowing voters who lack a Florida driver’s license or identification
card to register to vote online using solely the last four digits of their
social security number;
iv. notifying voters of errors with their online voter registration
applications without requiring them to print and mail a paper voter
registration application;
c.

Ordering Defendants to modify vote-by-mail procedures to ensure they
are available and accessible to all registered voters, including by:
i. Permitting voters to have their ballot sent to an alternate address to
the one on file with the SOE without requiring the request to be
signed and in writing, or, alternatively, sending a postage pre-paid
vote-by-mail request form to all currently registered voters;
ii. ensuring that every voter is mailed a ballot in accordance with their
language preferences and providing language assistance, as required
by the Voting Rights Act;

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iii. ensuring vote-by-mail ballots are available in formats that are
accessible to voters with disabilities without requiring assistance
from another person;
iv. accepting returned vote-by-mail ballots and counting them as long
as they are postmarked or dated by Election Day and received within
ten days of Election Day, and
v. expanding the number and locations of drop-boxes, and accept
ballots returned to a drop-box no later than Election Day;
vi. allowing voters to utilize the emergency vote by mail ballot
procedures in the nine days before election day and suspending the
documentation requirements for establishing an emergency,
including county-level requirements;
vii. suspending limits on the number of ballots that may be obtained and
the manner of their return by non-family members authorized by
voters to obtain and return their mail ballots;
viii. extending the vote-by-mail “cure” period for ballots with missing or
mismatched signatures, and ensuring signature matching and cure
procedures and instructions are clear, objective, reliable, accessible,
and non-discriminatory;

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d.

Ordering Defendants to ensure in person voting is safe and accessible,
including by
i. expanding the days, hours, and locations of early voting;
ii. establishing curb-side voting at each polling location;
iii. expanding availability of “supervised voting;”
iv. ensuring CDC guidelines for reducing the risk of COVID-19
exposure are followed;

e.

Ordering Defendants to ensure that all voter registration forms, vote-bymail request forms, vote-by-mail return envelopes, and cure affidavits
can be sent postage pre-paid;

f.

Ordering Defendants to provide all the above materials and information
in Spanish-language;

g.

Ordering Defendants to publicize, in English, Spanish, and other
languages spoken by a substantial number of Florida voters, the changes
to voting and vote-by-mail procedures;

h.

Awarding Plaintiffs their costs, expenses, and reasonable attorneys’ fees
pursuant to, inter alia, 42 U.S.C. 1983 and other applicable laws; and

i.

Granting such other relief as the Court deems just and proper.

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Respectfully submitted,
Dated: April 20, 2020
CHIRAAG BAINS*
Dēmos
740 6th Street NW, 2nd Floor
Washington, DC 20001
[phone]
[e-mail]
STUART NAIFEH*
KATHRYN C. SADASIVAN*
MIRANDO GALINDO*
EMERSON GORDON-MARVIN**
Dēmos
80 Broad St, 4th Floor
New York, NY 10004
[phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]

s/ Stuart C. Naifeh
JUDITH A. BROWNE DIANIS**
GILDA DANIELS**
SHARION SCOTT*
JESS UNGER**
Advancement Project National Office
1220 L Street N.W., Suite 850
Washington, D.C. 20005
[phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
KIRA ROMERO-CRAFT
(FL SBN 49927)
LatinoJustice PRLDEF
523 West Colonial Drive
Orlando, Florida 32804
[phone]
[e-mail]
FRANCISCA FAJANA*
JACKSON CHIN**
LatinoJustice PRLDEF
475 Riverside Drive, Suite 1901
New York, NY 10115
[phone]
[e-mail]
[e-mail]

Attorneys for Plaintiffs
*Admitted pro hac vice
**Application for admission pro hac vice forthcoming
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