LEAGUE OF WOMEN VOTERS OF FLORIDA INC et al v. DETZNER
ORDER GRANTING PLAINTIFFS' MOTION. Plaintiffs' Motion for Preliminary Injunction, ECF No. 22 , is GRANTED. The Secretary of State is preliminary enjoined from implementing or enforcing the Early Voting Statute in any w ay prohibiting or discouraging the use of any city hall, permanent public library facility, fairground, civic center, courthouse, county commission building, stadium, convention center, government-owned senior center, or government-owned community ce nter for early voting because that facility is related to, designed for, affiliated with, or part of a college or university, including through the use of the Secretary of States powers to obtain and maintain uniformity in the interpretation and impl ementation of Florida's election laws; The Secretary of State shall issue a directive to the supervisors of elections advising them that the interpretation of the Early Voting Statute that excludes from consideration as early voting sites any fa cilities related to, designed for, affiliated with, or part of a college or university, is unconstitutional and, accordingly, the supervisors of elections retain discretion under the Early Voting Statute to place early voting sites at any city hall, permanent public library facility, fairground, civic center, courthouse, county commission building,stadium, convention center, government-owned senior center, or government-owned community center, including any such site as may be related to, design ed for, affiliated with, or part of a college or university. The Secretary shall include in the directive a copy of this Order. The Secretary of State shall file in this Courts electronic case filing system a Notice of Compliance with the above para graphs on or before Friday, July 27, 2018. The preliminary injunction set out above will take effect upon the posting of security in the amount of $500 for costs and damages sustained by a party found to have been wrongfully enjoined. Plaintiffs will immediately notify Defendant when the bond has been posted and thereafter file proof of such notice in this Court's electronic case files systems. Signed by CHIEF JUDGE MARK E WALKER on 7/24/2018. (kjw)
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
LEAGUE OF WOMEN VOTERS OF
FLORIDA, INC., et al.,
CASE NO. 4:18-CV-251-MW/CAS
KENNETH W. DETZNER, in his official
capacity as the Florida Secretary
ORDER GRANTING PLAINTIFFS’ MOTION
FOR PRELIMINARY INJUNCTION
Florida is home to 12 public universities and 28 state and community
colleges. ECF No. 24, Ex. I, at 7 (“Rodden Report”). Four of the 10 largest public
universities in the United States are in Florida. Id. For example, the
University of Florida (“UF”) in Gainesville—revered by many as Florida’s first
and finest institution of higher education—enrolls more than 52,000 students,
9,000 of whom live on the campus’s three centrally located square miles. Id. at
11, 18–19. Nearly 68 percent of Gainesville’s voting-age population is affiliated
with UF and nearby Santa Fe College. Id. at 9; ECF No. 24, Ex. H, at 2.
Across Florida, more than 1.1 million young men and women were
enrolled in institutions of higher learning in 2016; nearly 830,000 were
enrolled at public colleges or universities. ECF No. 24, Ex. P, at 6 (“Levine, et
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al. Report”). Almost 107,000 staff members worked at these public institutions.
Id. Put another way, the number of people who live and work on Florida’s
public college and university campuses is greater than the population of
Jacksonville, Florida—or the populations of North Dakota, South Dakota,
Alaska, Vermont, Wyoming, and the District of Columbia.
In November 2016, 2.4 million men and women under the age of 30 were
registered to vote in Florida. ECF No. 24, Ex. B., at 7 (“Smith Report”). They
comprised more than one quarter of the 9.5 million Floridians who voted that
election. Id. at 6. Many of them chose to vote early, a popular form of voting in
Florida. 1 In 2012, roughly 2.4 million Floridians of all ages—or 28.1 percent of
the electorate—voted early. Smith Rep., at 5. That number rose in 2016 to more
than 3.9 million Floridians of all ages—or approximately 40.3 percent of all
those who voted—who cast their ballots at an early voting site. Id. at 4.
Early voting is especially popular among college students. They vote
early at a higher rate in Florida than the national average. In the 2012 election,
16 percent of college students across the country voted early; that number
increased to 18 percent in 2016. Levine, et al. Rep., at 14. In Florida, 29 percent
of college students voted early in 2012. Id. In 2016, 43 percent of Florida’s
college students voted early. Id.
This case is about early voting. This Court uses the term “early voting” or “vote early” as
synonyms for “in-person early voting.” This is different than absentee or mail-in voting. It is also
different than voting on Election Day; on-campus polling places are permissible on Election Day.
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Despite early voting’s popularity among Florida’s college students, no
early voting site can exist on a college or university campus. As a direct result
of Secretary of State Kenneth Detzner’s (“Defendant”) Opinion DE 14-01 (the
“Opinion”), ECF No. 24, Ex. A, 2 issued through the Division of Elections, none
of the nearly 830,000 students enrolled in a public university or college can
vote early on campus. And none of the 68 percent of Gainesville residents
affiliated with UF or Santa Fe College can vote early where they work, study,
or, for thousands of students, live.
This Court has considered, after hearing on July 16, 2018, Plaintiffs’
motion for preliminary injunction. ECF No. 22. The issue is whether the
Secretary of State’s Opinion that categorically bars early voting on any
university or college campus violates the First, Fourteenth, and Twenty-Sixth
Amendments to the U.S. Constitution. It does. The motion is GRANTED.
More lines, more problems. In November 2012, many Florida voters
“found themselves waiting in line for hours to cast a ballot both during the
early voting period and on Election Day,” according to Defendant’s postelection report intended to improve the state’s election administration. ECF
This Court refers to the Opinion throughout this Order as Defendant’s Opinion even though
Maria I. Matthews, the Director of the Division of Elections, signed the Opinion. The Division is
part of the Florida Department of State, the body through which the Secretary of State issues
“formal opinions on the interpretation of election laws.” ECF No. 33, at ¶ 14.
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No. 24, Ex. C, at 4. Supervisors of elections attributed these “excessive and
unreasonable waiting times” to several factors, including “inadequate voting
locations.” Id. Under Florida law, supervisors of elections have discretion to
designate certain eligible locations as early voting sites. Fla. Stat. §
101.657(1)(a) (“The supervisor may also designate . . .”) (emphasis added). In
2012, however, supervisors of elections could only designate their offices, city
halls, or public libraries as early voting sites. ECF No. 24, Ex. C, at 7–8.
Defendant recommended that Florida’s legislature amend its early
voting statute to expand what qualifies as an eligible early voting site. Id. at
7. “If given the flexibility to choose more and larger sites, supervisors could
more effectively select early voting locations that meet the geographic needs of
their voters and reduce the wait times at these locations,” Defendant urged.
Id. at 5.
The legislature obliged. In May 2013, the Governor signed into law a
provision (the “Early Voting Statute”) that permits supervisors of elections to
“designate any city hall, permanent public library facility, fairground, civic
center, courthouse, county commission building, stadium, convention center,
government-owned senior center, or government-owned community center as
early voting sites.” Fla. Stat. § 101.657(1)(a). The Early Vote Statute did not
include language from a proposed amendment that would have added “any
. . . Florida College System institution facility” as an early voting site. ECF No.
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24, Ex. D. Nor did the legislature pass other proposed bills that, among other
things, explicitly identified universities and colleges as eligible early voting
sites. See ECF No. 24, Exs. K, L, & M.
In January 2014, Defendant, through the Division of Elections, issued
the Opinion in response to Gainesville’s City Attorney’s question whether the
J. Wayne Reitz Union, located on UF’s campus, fit within the “governmentowned community center” or “convention center” language in the Early Voting
Statute. ECF No. 61, Ex. 1. A group of UF students had approached the
Gainesville City Commission about placing an early voting site on campus,
prompting the City Attorney to seek clarification from Defendant. Id.
Defendant’s answer was a resounding “no.” He declared that “[t]he Reitz
Union is a structure designed for, and affiliated with, a specific educational
institution. It is part of the University of Florida.” ECF No. 24, Ex. A, at 3. He
then interpreted the Early Voting Statute to exclude as “convention center”
and “government-owned community center” the Reitz Union and “any other
college- or university-related facilities” as an early voting site. Id. Defendant
reasoned that because the Florida legislature declined to include explicit
language identifying colleges and universities as early voting sites, “the terms
‘convention center’ and ‘government-owned community center’ cannot be
construed so broadly” as to include college or university facilities such as the
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Reitz Union. Id. Besides citing the unadopted amendment to the Early Voting
Statute and other unadopted bills, Defendant offered no other rationale.
Plaintiffs are six university students and two organizations, the League
of Women Voters and the Andrew Goodman Foundation. 3 Megan Newsome is
a 22-year-old recent graduate of the University of Florida who serves as a
Puffin Democracy Fellow of the Andrew Goodman Foundation in addition to
her on-campus research job. ECF No. 30, at ¶¶ 2–3. Ms. Newsome has voted
early in past elections. Id. at ¶ 7. Amol Jethwani is a 21-year-old University of
Florida student who has voted early in past elections and has experience
arranging rides for fellow students to voting sites in Gainesville. ECF No. 29,
at ¶¶ 3, 6–9, 12. Mary “Jamie” Roy is a 20-year-old University of Florida
student who serves as a Student Ambassador to the Andrew Goodman
Foundation and has voted both early and on Election Day in past elections.
ECF No. 32, at ¶¶ 3, 5. Dillon Boatner is a 21-year-old University of Florida
student who is a student member of the League of Women Voters. ECF No. 26,
at ¶ 3. Alexander Adams is a 19-year-old student at the Florida State
University; he has never voted before and intends to vote for the first time in
the 2018 election. ECF No. 25, at ¶¶ 3, 8. Anja Rmus is a 19-year-old University
Plaintiffs have standing. This Court addresses Defendant’s standing arguments in its Order
Denying Defendant’s Motion to Dismiss. ECF No. 64, at 12–14.
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of Florida student who has voted both early and on Election Day in past
elections. ECF No. 31, at ¶¶ 3, 5.
Plaintiffs Newsome, Jethwani, Roy, and Rmus are residents of and
registered to vote in Alachua County. ECF No. 30, at ¶ 2; ECF No. 29, at ¶ 2;
ECF No. 32, at ¶ 2; ECF No. 31, at ¶ 2. Plaintiff Boatner is currently registered
to vote in Volusia County but intends to change his registration this fall to
Alachua County, where he spends the academic year. ECF No. 26, at ¶ 2.
Plaintiff Adams is a resident of and registered voter in Leon County. ECF No.
25, at ¶ 2.
Defendant is Florida’s Secretary of State. Under Florida law, the
Secretary of State is the “chief election officer.” Fla. Stat. § 97.012. He is
required to “[o]btain and maintain uniformity in the interpretation and
implementation of the election laws.” Fla. Stat. § 97.012(1). He provides
“written direction and opinions to the supervisors of elections on the
performance of their official duties.” Fla. Stat. § 97.012(16). The supervisors of
elections treat Defendant’s opinions as “authoritative” and follow them “absent
contrary directive.” ECF No. 33, at ¶ 16.
All individual Plaintiffs assert various burdens to their own and their
peers’ voting rights because of Defendant’s Opinion. For instance, Mary
“Jaime” Roy does not own a car and is dependent on Gainesville’s public
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transportation system. ECF No. 32, at ¶ 5. 4 In one municipal election, they had
to travel on two buses from their home to their voting location, which took
between 40 and 60 minutes each way. Id. at ¶ 7.
Megan Newsome has helped organize a one-day shuttle program
between campus and the polling place during the early voting period. ECF No.
30, at ¶ 8. Using the shuttle involved multiple waiting points for participants—
waiting for the shuttle to fill before leaving, waiting in line to vote, waiting for
all individuals to finish voting, and then driving back to campus. Id. Each trip
took approximately one hour. Id. Some students were unable to use the shuttle
because they did not have an hour to spare in their schedules on that day or
they sought the shuttle out after the shuttle program ended. Id. at ¶ 9. In other
elections, Ms. Newsome has asked other people for rides or hired Uber cars for
the round-trip from campus to the early voting location. Id. at ¶ 10. Amol
Jethwani, meanwhile, helped coordinate rides to voting locations, exerting
significant effort in identifying drivers, coordinating riders, and synchronizing
suitable times for the rides. ECF No. 29, at ¶¶ 9–10. All individual Plaintiffs
emphasize that an early voting site on-campus would lighten the burdens on
their voting rights. Id. at ¶ 20; ECF No. 25, at ¶ 17; ECF No. 26, at ¶ 23; ECF
No. 30, at ¶ 19; ECF No. 31, at ¶ 15; ECF No. 32, at ¶ 11.
Plaintiff Roy identifies as gender-queer and prefers the use of the gender-neutral pronoun
“they.” ECF No. 16, at ¶ 19.
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Before reaching the merits of Plaintiffs’ motion, this Court addresses
some threshold issues.
First, this Court rejects Defendant’s argument that the Pennhurst
doctrine precludes this Court from considering this case. Defendant conjures
Plaintiffs’ federal claims into state claims. See ECF No. 45, at 2 (“The Plaintiffs
have now put this Court in a position of interpreting state law and then
requiring state officials . . . to follow that federal interpretation of state law.”)
(emphases in original). This attempt to scurry out of federal court is a swing
and a miss.
Plaintiffs have brought forth federal claims. “Since the plaintiff has
alleged a violation of the federal Constitution, Pennhurst does not apply.”
Brown v. Georgia Dep’t of Revenue, 881 F.2d 1018, 1023 (11th Cir. 1989). This
Court would be on thinner ice if Plaintiffs were asking this Court to compel
Defendant to abide by a federal judge’s interpretation of the Early Voting
Statute—and then this Court charged ahead and did so.
Here, this Court is on rock-solid ground. Plaintiffs are explicit in their
federal claims. ECF No. 36, at 13 & 29; see also ECF No. 47, at 1–2. They
discuss state law only to the extent it has informed Defendant’s interests—or
lack thereof—in promulgating the Opinion. ECF No. 36, at 26–29. They do not
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seek this Court to interpret and enjoin Defendant on the basis of state law.
ECF No. 47, at 1.
It is axiomatic that federal courts can review state or local laws alleged
to be unconstitutional. See, e.g., District of Columbia v. Heller, 554 U.S. 570,
636 (2008) (invalidating District of Columbia’s ban on possession of handguns
in the home as a violation of the Second Amendment); Loving v. Virginia, 388
U.S. 1, 12 (1967) (invalidating Virginia law restricting marriage based on
racial classifications as a violation of the Fourteenth Amendment). It is also
“beyond dispute that federal courts have jurisdiction over suits to enjoin state
officials from interfering with federal rights.” Shaw v. Delta Air Lines, Inc., 463
U.S. 85, 96 n.14 (1983) (citing Ex parte Young, 209 U.S. 123, 160–62 (1908));
see also Armstrong v. Exceptional Child Cent., 135 S.Ct. 1378, 1384 (2015)
(citing Osborn v. Bank of United States, 9 Wheat. 738, 838–39 (1824) and Ex
parte Young, 209 U.S. at 150–51) (“[W]e have long held that federal courts may
in some circumstances grant injunctive relief against state officers who are
violating, or planning to violate, federal law.”).
That this Court is reviewing a state officer’s interpretation of state law—
an interpretation that has the effective force of a state law or policy—presents
an added wrinkle that is quickly ironed out. Simply stated, a federal court can
review a state official’s interpretation of—or gloss over—state law when it is
alleged to violate the United States Constitution. Otherwise, state legislatures
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could pass ambiguous statutes, giving cover for state officers to interpret vague
laws in manners contrary to the U.S. Constitution. Barred in federal courts,
challenges to these interpretations in state court could then fade under state
courts’ deference to state interpretations of state law. 5
The best analogues are those federal invalidations of restrictive
interpretations of state election laws. In 2012, a federal judge examined Ohio
election statutes and the Ohio Secretary of State’s interpretations of those
statutes, which created different deadlines for military and non-military early
voters. Obama for Am. v. Husted, 888 F. Supp. 2d 897, 899–902 (S.D. Ohio
2012). The court enjoined the state from enforcing those laws as a violation of
the First and Fourteenth Amendments. Id. at 911. The Sixth Circuit affirmed.
Obama for Am. v. Husted, 697 F.3d 423, 437 (6th Cir. 2012). In affirming, the
Sixth Circuit described how the Secretary “construed” Ohio law “to apply the
more generous [early voting] deadline . . . to military and overseas voters.” Id.
at 427. This resulted in “particularly high” burdens on the impacted nonmilitary voters. Id. at 431 (internal quotation marks omitted).
Similarly, a federal judge determined the Georgia Secretary of State’s
interpretation of a state statute violated federal law and enjoined her from
acting pursuant to her interpretation. Charles H. Wesley Educ. Found. v. Cox,
This Court is persuaded by Judge O’Neill’s characterization: “[I]n deciding a question of federal
law, I am not bound to follow a state agency’s interpretation of state law.” United States v.
Landsdowne Swim Club, 713 F. Supp. 785, 795 n.22 (E.D. Pa. 1989).
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324 F. Supp. 2d 1358, 1369 (N.D. Ga. 2004). The Georgia law detailed how “a
person may apply to register to vote by completing and mailing” an application
form. Id. at 1366. The Secretary, however, interpreted the law to require how
“‘a person’ may register by sending one application in an individual envelope”
to the Secretary. Id. (emphasis added). Plaintiff, a non-profit organization
engaging in voter-registration drives, submitted more than one application in
a bundle, which the Secretary rejected. Id. at 1360–61. The district court
construed the Secretary’s interpretation as a state policy, id. at 1366, and
determined the Secretary violated federal law in rejecting the bundled
registrations. Id. at 1368.
This Court is reviewing Defendant’s Opinion. It has the effective force of
state law or official policy. While Defendant emphasizes the advisory nature of
his opinions and their limited reach, ECF No. 45, at 7, these characterizations
are unpersuasive. 6 According to the undisputed declarations of Ion Sancho,
who served as Leon County’s Supervisor of Election for 27 years, ECF No. 33,
at ¶ 2, the Florida State Association of Supervisors of Elections “and Florida’s
Supervisors of Election[s] generally treat written opinions of the Division . . .
as authoritative and follow such opinions, absent contrary directive by a court,
by statute, or by the Secretary of State.” Id. at ¶ 16. Supervisors of elections
In an accompanying Order Denying Defendant’s Motion to Dismiss, this Court determined
Defendant’s arguments regarding the limited scope of the Opinion to be disingenuous and
therefore unpersuasive. ECF No. 64, at 9–10.
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“give broad and substantial deference” to such opinions. ECF No. 53, at ¶ 6.
They do not act contrary to the opinions because, as a practical matter, “it takes
enough effort to administer elections without adding controversy”—such as
acting, or being perceived to act, inconsistent with the Secretary’s opinion. Id.
Even more, the Secretary of State sends copies of opinions to supervisors of
elections, which “do not contain qualifying language to suggest the advisory
opinions are narrowly limited in their application.” Id. at ¶ 4. Therefore, the
supervisors reasonably understand the state’s chief election officer’s opinions
as how he “interpret[s] and [is] likely to enforce Florida’s election laws.” Id.
That all supervisors of elections follow Defendant’s opinions is no surprise.
Turning now to the Opinion’s scope and language, this Court first
examines what prompted it. A group of UF students approached the City
Commission and requested an early voting site be placed on campus. ECF No.
61, Ex. 1, at 1. The Gainesville City Attorney, writing to Defendant, explained
the Commission “desires to provide for early voting as allowed by state law.”
Id. She then asked: “Would the Reitz Union on the University of Florida
campus qualify as a government-owned community center or a convention
center for purposes of early voting under the recently amended Section
101.657, Florida Statutes?” Id. at 2.
Defendant’s answer—the Opinion—was broader than the question. In
concluding that “[t]he terms ‘convention center’ and ‘government-owned
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community center’ cannot be construed so broadly as to include the Reitz Union
or any other college- or university-related facilities that were rejected by the
Legislature as additional early voting sites,” Defendant looked only to
unadopted legislation—legislation that referenced colleges or universities as a
whole and without any limiting language on the types of permissible or
impermissible on-campus facilities. ECF No. 61, at 2; see also ECF No. 24, Exs.
D, K, L & M (the unadopted amendment and unadopted proposed legislation).
As a result, Defendant’s rationale for rejecting the Reitz Union as an early
voting site was precisely because it “is a structure designed for, and affiliated
with, a specific educational institution.” ECF No. 61, at 2. 7 Put another way,
because “[i]t is part of the University of Florida,” the Reitz Union cannot be an
early voting site. Id. This reasoning means that any on-campus facility cannot
be an early voting site, including stadiums or permanent public library
facilities, which are permissible early voting sites under the Early Voting
Statute. Fla. Stat. § 101.657(1)(a). 8
Defendant’s counsel ably and understandably attempted to narrow the Opinion’s scope as
merely interpretations of “convention center” and “government-owned community center.” ECF
No. 62, at 85–87. Doing so requires ignoring the whole Opinion, including Defendant’s rationale.
Defendant’s Opinion reflects the following logic. A questioner asks whether it is permissible to
do X. Answerer responds it is not permissible to do X because of Y reason. The Y reason can
reasonably be understood as answerer’s policy. Consider the following definitely hypothetical
situation. A law clerk asks this Court if he can have a stuffed pony in his office for a decorative
purpose, despite a federal regulation prohibiting “dogs or other animals on Federal property for
other than official purposes.” 41 C.F.R. § 102–74.425. This Court answers in the negative,
reasoning that prohibiting non-official animals on federal property extends to stuffed animals.
The dismayed law clerk would then reasonably conclude that no stuffed or live animals of any
kind—a stuffed lion, a stuffed tiger, or a live bear—would be permitted in his office. What is more,
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Plaintiffs move for preliminary injunction, seeking this Court to enjoin
Defendant from prohibiting county supervisors of elections from placing early
voting sites on college or university campuses and to require Defendant to issue
a directive to the supervisors of elections informing them of this Court’s order
and its effects. ECF No. 22, at 2.
A district court can only grant a motion for preliminary injunction “if the
moving party shows that (1) it has a substantial likelihood of success on the
merits; (2) irreparable injury will be suffered unless the injunction issues; (3)
the threatened injury to the movant outweighs whatever damage the proposed
injunction may cause the opposing party; and (4) if issued, the injunction would
not be adverse to the public interest.” Siegel v. Lepore, 234 F.3d 1163, 1176
(11th Cir. 2000) (citing McDonald’s Corp. v. Robertson, 147 F.3d 1301, 1306
(11th Cir. 1998)). Although a “preliminary injunction is an extraordinary and
drastic remedy,” it nonetheless should be granted if “the movant ‘clearly carries
the burden of persuasion’ as to the four prerequisites.” United States v.
Jefferson Cty., 720 F.2d 1511, 1519 (11th Cir. 1983) (quoting Canal Auth. v.
Callaway, 489 F.2d 567, 573 (5th Cir. 1974)). 9
this Court’s authoritative answer to one law clerk would extend to other law clerks, whose plans
for office decorations would be unceremoniously scuttled.
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh
Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down prior
to October 1, 1981.
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Courts examine alleged violations of the First and Fourteenth
Amendment’s fundamental right to vote under a balancing test—the so-called
Voting is the beating heart of democracy. It is a “fundamental political
right, because [it is] preservative of all rights.” Yick Wo v. Hopkins, 118 U.S.
356, 370 (1886). “It is beyond cavil that ‘voting is of the most fundamental
significance under our constitutional structure.’” Burdick v. Takushi, 504 U.S.
428, 433 (1992) (quoting Ill. Bd. of Elections v. Socialist Workers Party, 440
U.S. 173, 184 (1979)). Voting also requires extensive administration, planning,
and logistics. “[T]here must be a substantial regulation of elections if they are
to be fair and honest and if some sort of order, rather than chaos, is to
accompany the democratic processes.” Storer v. Brown, 415 U.S. 724, 730
With these interests in mind, courts examine states’ election laws and
regulations under what has been termed “a sliding-scale balancing analysis”
where “the scrutiny varies with the effect of the regulation at issue.” Crawford
v. Marion Cty. Election Bd., 553 U.S. 181, 210 (2008) (Scalia, J., concurring).
Courts “‘must first consider the character and magnitude of the asserted injury
to the rights protected by the First and Fourteenth Amendments that plaintiff
seeks to vindicate’ against ‘the precise interests put forward by the State as
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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.’” Burdick, 504 U.S. at 434 (quoting Anderson v. Celebrezze, 460 U.S.
780, 788 (1983)). When rights are subjected to “‘severe’ restrictions, the
regulation must be ‘narrowly drawn to advance a state interest of compelling
importance.’” Id. (quoting Norman v. Reed, 502 U.S. 279, 289 (1992)). When
rights are subjected to “reasonable, nondiscriminatory restrictions” then “the
state’s important regulatory interests are generally sufficient to justify” the
restrictions. Anderson, 460 U.S. at 788. “However slight that burden may
appear . . . it must be justified by relevant and legitimate state interests
‘sufficiently weighty to justify the limitation.’” Crawford, 553 U.S. at 191
(controlling op.) (quoting Norman, 502 U.S. at 288–89).
This Court assumes for the purpose of the following First and Fourteenth
nondiscriminatory restriction.”Anderson, 460 U.S. at 788. As explained infra,
at 30–34, the Opinion is facially discriminatory on account of age. But even
after construing it under a more deferential “reasonable, nondiscriminatory”
lens, the Opinion falters under Anderson-Burdick because it disparately
imposes significant burdens on Plaintiffs’ rights weighted against imprecise,
insufficiently weighty government interests.
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1. Defendant’s Opinion Imposes Significant Burdens on Plaintiffs.
Contrary to Defendant’s characterizations, Plaintiffs’ burdens are more
than de minimis. Defendant’s Opinion imposes significant burdens on
Plaintiffs’ First and Fourteenth Amendment rights.
At first blush, Plaintiffs’ burdens appear slight. Indeed, some courts have
characterized administrative burdens like waiting in line and commuting as
not severe. In a challenge to Indiana’s voter identification requirement, for
example, the Supreme Court explained “[f]or most voters” the process of
document-gathering, traveling to a state office, and obtaining a voter
identification “surely does not qualify as a substantial burden on the right to
vote, or even represent a significant increase over the usual burdens of voting.”
Crawford, 553 U.S. at 198 (controlling op.). Drawing from this language, a
federal court recently described a group of plaintiffs’ logistical burdens in early
voting at the only allowable early voting site in the county as “nonsevere,
nonsubstantial, or slight.” Common Cause Ind. v. Marion Cty. Election Bd.,
2018 WL 1940300, at *12 (S.D. Ind. Apr. 25, 2018). 10 And so courts have
acknowledged there are differences between “disparate inconveniences that
voters face when voting to the denial or abridgement of the right to vote.” Lee
The district court respectfully made this characterization “without intending any denigration”
to the plaintiffs in that case. 2018 WL 1940300, at *12. There, Plaintiffs had to drive between 25
and 30 minutes to the early voting site or had to pay for public transportation. They also faced
parking difficulties and long lines. Id. at *5.
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v. Va. State Bd. of Elections, 843 F.3d 592, 601 (4th Cir. 2016). Voters are not
entitled to have “every polling place . . . be precisely located such that no group
had to spend more time traveling to vote than did any other.” Id. Conceivably,
then, a college student having to travel to vote early would perhaps not face a
substantial burden under Anderson-Burdick because of her commute.
But those are not the facts here. Florida’s public college and university
students are categorically prohibited from on-campus early voting because of
Defendant’s Opinion. This is not a “nonsevere, nonsubstantial, or slight
burden.” Common Cause Ind., 2018 WL 1940300, at *12. This is not a mere
The Opinion lopsidedly impacts Florida’s youngest voters. Disparate
impact matters under Anderson-Burdick. A majority of the Crawford Court
determined that “[i]t ‘matters’ in the Anderson-Burdick analysis . . . whether
the effects of a facially neutral and nondiscriminatory law are unevenly
distributed across identifiable groups.” Common Cause of Ind., 2018 WL
1940300, at *13 (quoting Crawford, 553 U.S. at 216 (Souter, J., dissenting));
see also id. at n.18 (identifying six-justice Crawford majority agreeing that
disparate effects across identifiable groups matter).
The Opinion has the effect of creating a secondary class of voters who
Defendant prohibits from even seeking early voting sites in dense, centralized
locations where they work, study, and, in many cases, live. This effect alone is
Case 4:18-cv-00251-MW-CAS Document 65 Filed 07/24/18 Page 20 of 40
constitutionally untenable. See Bush v. Gore, 531 U.S. 98, 104–05 (2000)
(“Having once granted the right to vote on equal terms, the State may not, by
later arbitrary and disparate treatment, value one person’s vote over that of
another.”); Dunn v. Blumstein, 405 U.S. 330, 336 (1972) (“[A] citizen has a
constitutionally protected right to participate in elections on an equal basis
with other citizens in the jurisdiction.”); and Harper v. Va. Bd. of Elections, 383
U.S. 663, 665 (1966) (“[I]t is enough to say that once the franchise is granted
to the electorate, lines may not be drawn which are inconsistent with the Equal
Protection Clause of the Fourteenth Amendment.”).
Admittedly, the Early Voting Statute authorizes early voting as “a
convenience to the voter.” Fla. Stat. § 101.657. Constitutional problems
emerge, however, when conveniences are available for some people but
affirmatively blocked for others. “Once a unit of government has decided to
administer a benefit or impose a burden, it must do so rationally and equitably,
without offense to independent constitutional prohibitions.” Common Cause of
Ind., 2018 WL 1940300, at *11. Defendant does not do this.
Defendant’s Opinion prohibits a discrete class of individuals—nearly
830,000 individuals who live and work on public college and university
communities, i.e. overwhelmingly young voters—from even the possibility of
an alternative, reasonable early voting location. Further, this class of voters is
the only class in Florida facing such a prohibition. Defendant’s Opinion
Case 4:18-cv-00251-MW-CAS Document 65 Filed 07/24/18 Page 21 of 40
transforms these “mere inconvenience[s]” to an abridgment of the right to vote.
ECF No. 45, at 25.
Dr. Rodden’s report scrutinizes in great detail the Opinion’s lopsided
effects on college students. See generally Rodden Rep. 11 He first examines the
travel times within communities with large universities using the census block
group as the basis for comparison. Dr. Rodden summarizes that in eight of
these communities there is “a pronounced difference in travel times between
dorm-dominated [and student-dominated] block groups” and the at-large
community. Id. at 64. Travel times to the nearest early voting site are
“significantly longer” from census block groups with large college-student
populations than those census block groups without such populations. Id. at 2.
He then compares those travel times to similar communities without large
universities. “[C]ommunities with dorm populations always have greater
inequalities in travel times across neighborhoods than their ‘non-dorm’
matches.” Id. at 73–74.
These longer travel times are even more glaring when considered in
conjunction with three additional data-based conclusions. First, college
students’ residences are generally clustered on or near campus. Id. at 20, Fig.
This Court finds Dr. Rodden’s report to be credible. His methodology is sound. His data
originates from the most recent Five-Year American Community Surveys, the Florida
Department of State, Google Maps (for analyzing travel times), U.S. News and World Report (for
analyzing parking and car usage), and the National Center for Education Statistics. Rodden Rep.,
Case 4:18-cv-00251-MW-CAS Document 65 Filed 07/24/18 Page 22 of 40
1 (showing concentration of Gainesville’s college population, including six
census block groups where more than 75 percent of residents live in dorms);
30, Fig. 5 (Tallahassee); 37, Fig. 9 (Miami); 44, Fix. 13 (Orlando); and 52, Fig.
Second, these areas contain some of the most densely populated areas of
a community. 12 Id. at 21, Fig. 2 (Gainesville’s population density); 31, Fig. 6
(Tallahassee); 38, Fig. 10 (Miami), 45, Fig. 14 (Orlando); and 53, Fig. 18
Third, individuals living in these dense campus-centered areas are
disproportionately without access to cars. 13 Id. at 22 (Gainesville’s car access);
32, Fig. 7 (Tallahassee); 39, Fig. 11 (Miami); 46, Fig. 15 (Orlando); and 54, Fig.
19 (Tampa). Moreover, Dr. Rodden draws from credible data in explaining that
commuting by biking is “quite rare in Florida,” accounting for between one and
five percent of all commutes—not to mention the relatively high levels of
bicycle injuries and deaths located near Florida’s university campuses that
may dissuade the average commuter. ECF No. 49, at 5.
This Court is mindful that some dorm-dominated census block tracks may not be among the
most densely-populated area of a community but surrounding census block tracks, populated by
students living off-campus, remain among some of the most densely populated areas. Id. at 38,
Fig. 10 (Miami), and at 53, Fig. 18 (Tampa).
As best as Dr. Rodden could determine from available data from surveys and universities.
Case 4:18-cv-00251-MW-CAS Document 65 Filed 07/24/18 Page 23 of 40
This Court is not persuaded by Defendant’s response to Dr. Rodden. In
particular, Defendant measures the walking and biking distance between the
nearest early voting site and UF from the very edge of campus. ECF No. 45, at
9–10 (showing a 24-minute one-way walk and an eight-minute one-way bike
ride to the early voting site according to Google Maps). The University of
Florida is like Hogwarts, which proscribes on-campus apparating—or
instantaneous teleportation. Students do not and cannot apparate within the
campus. Rather, UF students would begin their treks to the early voting site
in downtown Gainesville from various points across campus. For example, it is
a 2.5-mile distance from the center of campus at a dormitory like Hume Hall
to the early voting site. Rodden Rep. at 26.
What is more, the Opinion’s effects fall on a class of voters particularly
invested in early voting for multiple reasons detailed in the record. Despite
Defendant’s Opinion and its effects, approximately 43 percent of Florida’s
college students voted early in 2016—more than the 18 percent of college
students who voted early nationally that year. Levine, et al. Rep., at 14. And
nearly half a million of the 1.2 million Floridians aged 18 to 29 (including noncollege students) in 2016 voted at an early voting site. Smith Rep., at 5–6.
Plaintiffs’ experts offer credible explanations on why younger voters turn
toward early voting. Convenience is an unsurprising factor. See Levine, et al.
Rep., at 8 (“[T]he convenience of voting is a significant factor in an individual’s
Case 4:18-cv-00251-MW-CAS Document 65 Filed 07/24/18 Page 24 of 40
decision to vote, as it affects the cost side of the implicit cost/benefit calculation
that each prospective voter makes.”); Smith Rep., at 10 (“When it comes to
deciding whether to vote an absentee mail ballot, vote early in-person, or vote
on Election Day, younger registrants, like their older peers, often seek to
maximize convenience.”). Political scientists have long recognized voting’s costbenefit nature. Id. at 10–11 n.6; Levine, et al. Rep., at 8 n.6. Costs decrease
when voters face fewer restrictions to, or at, a polling location.
Moreover, the alternatives to early voting are fraught with potential
disproportionately face information costs—“Where is my local polling location?
What valid ID do I need to bring? . . . How do I get there?” Smith Report, at 13
(citing multiple academic articles studying the costs of voting). Younger voters
are more likely to have their provisional ballots rejected because they have
showed up at the wrong precinct, a not uncommon miscalculation for people
who move at least once a year from dorm-to-dorm, dorm-to-apartment, houseto-dorm, apartment-to-apartment, Greek-house-to-house, among others. Id. at
14. In Florida, voters aged 18 to 21 had provisional ballots rejected “at a rate
more than four times higher than the rejection rate for provisional ballots cast
by voters between the ages of 45 to 64.” Id. (emphasis added); see also id. at 15
(displaying table of rejected provisional ballots by age group).
Case 4:18-cv-00251-MW-CAS Document 65 Filed 07/24/18 Page 25 of 40
Additionally, on-campus voting locations on Election Day are crowded.
Dillon Boatner describes “very long lines to vote at the Reitz Student Union,
which wrapped through several hallways” on November 8, 2016. ECF No. 26,
at ¶ 5. Some “student voters had to wait in line for as long as an hour and a
half to cast their ballots.” Id. Ion Sancho describes similar scenes at Florida
State University, where “a disproportionately high number of voters (mostly
students)” appearing at on-campus voting sites had “changed residential
addresses and required time-consuming assistance to update their voter
registration,” thereby “lead[ing] to delays that slow the rate” for other people
to vote. ECF No. 33, at ¶ 8; see also ECF No. 53, at ¶ 8 (noting historically high
volume of voters on Election Day on campuses). In Alachua County, two of the
top three—and three of the top six—precincts with the largest number of
registered voters are located on UF’s campus. Smith Rep., at 17. On-campus
Election Day voting can be, in Defendant’s counsel’s words, “difficult” and “a
madhouse.” ECF No. 62, at 66.
Mail-in ballot statistics are even starker. Vote-by-mail is convenient, but
“a voter 18 to 21 years old is roughly eight-times more likely to have her vote
by mail ballot rejected than an absentee voter over 65 years old.” Id. at 12
(emphasis added). Put another way, 8,522 absentee ballots from voters aged
18 to 29 were rejected out of 243,409 cast; only 5,796 absentee ballots from
voters aged 65 or more were rejected out of 1,229,279 cast. Id. at 13.
Case 4:18-cv-00251-MW-CAS Document 65 Filed 07/24/18 Page 26 of 40
All the individual Plaintiffs live some distance away from their closest
early voting site. 14 So do many other people. What is different about Plaintiffs
is that Defendant’s Opinion categorically prevents them from an alternative
site on a dense, centralized location where they work, study, and, in many
cases, live. This prohibition creates significant burdens.
2. Defendant Articulates No Precise Interests Sufficiently Weighty
to Justify Plaintiffs’ Burdens on Their Right to Vote.
Contrast the lopsided burdens that Defendant’s Opinion imposes on
Plaintiffs with Defendant’s interests in it.
Generally, a state law or policy might claw back some expansions of its
access to the ballot, “arguably burden[ing] some segment of the voting
population’s right to vote.” Ohio Democratic Party v. Husted, 834 F.3d 620, 635
(6th Cir. 2016). In doing so, the “state’s important regulatory interests are
generally sufficient to justify reasonable, nondiscriminatory restrictions.”
Anderson, 460 U.S. at 788. Those interests must be “precise” to justify the
burden. Id. at 789. Restrictions that “may appear” to create even “slight”
burdens “must be justified by relevant and legitimate state interests
Alexander Adams lived one mile from the closest early voting site, though he expects his
dormitory assignment to change this upcoming semester. ECF No. 25, at ¶¶ 6 & 14. Other
individual Plaintiffs live even farther away from their closest early voting site: Dillon Boatner,
five miles, ECF No. 26, at ¶ 20; Amol Jethwani, 1.5 miles, ECF No. 29, at ¶ 18; Megan Newsome,
five miles, ECF No. 30, at ¶ 15; Anja Rmus, two miles, ECF No. 31, at ¶ 13. All individual
Plaintiffs explain that an on-campus early voting site will significantly ease the burdens on their
voting rights. ECF No. 25, at ¶ 16; ECF No. 26, at ¶ 21; ECF No. 29, at ¶ 17; ECF No. 30, at ¶ 16;
ECF No. 31, at ¶ 15; ECF No. 32, at ¶ 11.
Case 4:18-cv-00251-MW-CAS Document 65 Filed 07/24/18 Page 27 of 40
‘sufficiently weighty to justify the limitation.’” Crawford, 553 U.S. at 191
(controlling op.) (quoting Norman, 502 U.S. at 288–89).
Here, Defendant fails to articulate “sufficiently weighty,” id. or
“important regulatory interests,” Anderson, 460 U.S. at at 788, with any
“precis[ion]” to explain why it is “necessary to burden the plaintiff’s rights.” Id.
at 789. On the contrary, one must squint hard to identify Defendant’s
“important regulatory” and “precise” interests. Id. at 788–89.
As best as this Court determined during the preliminary injunction
hearing, Defendant articulates three interests in the Opinion: following state
law, preventing parking issues, and avoiding on-campus disruption that an
early-voting campus site could create. ECF No. 62, at 65–66.
Defendant’s claimed interest in following state law fails because the
Early Voting Statute does not prohibit early voting sites on college campuses. 15
State law authorizes a supervisor of election to designate “any city hall,
permanent public library facility, fairground, civic center, courthouse, county
commission building, stadium, convention center, government-owned senior
center, or government-owned community center as early voting sites.” Fla.
Stat. § 101.657(1)(a). Defendant interprets this statute based on amendments
At the risk of beating a dead horse, this Court emphasizes that it is not ordering Defendant to
comply with a federal court’s interpretation of state law. Pennhurst, 465 U.S. at 106. This Court
is examining the Early Voting Statute for the limited purpose of evaluating Defendant’s claimed
interests in following state law, an evaluation Anderson-Burdick necessitates.
Case 4:18-cv-00251-MW-CAS Document 65 Filed 07/24/18 Page 28 of 40
that were not adopted and bills not passed—that is, language not appearing
anywhere near the statute. Justice Scalia is more than instructive here. “It is
always perilous to derive the meaning of an adopted provision from another
provision deleted in the drafting process.” Heller, 554 U.S. at 590.
As written, the law does not require supervisors of elections to designate
such sites. Nor does the law prohibit supervisors of elections from designating
such sites. The law grants discretion to supervisors of elections. The Opinion
is a broad answer to a narrow question, effectively inserting a prohibition into
an otherwise flexible authorizing statute. See supra, at 13–14. Slapping a gloss
over a statute is not the same as following the statute.
Defendant also claims an interest in alleviating parking difficulties that
an on-campus early voting site might create. ECF No. 62, at 63 & 65–66; ECF
No. 45, at 14 & 24. This interest is neither precise nor sufficiently weighty.
First, a local supervisor of elections is in a better position to evaluate the
parking situation at potential sites than Defendant. For example, Ion Sancho
states that an early voting site at FSU “would help alleviate the
disproportionate burdens on voting, including transportation issues and
administrative delay.” ECF No. 33, at ¶ 10. He also explains how the “large,
concentrated population of voting-age individuals” come to campus daily
anyway despite “the scarcity of parking.” Id. at ¶ 11. Second, common sense
suggests that adding an additional early voting site would alleviate long lines
Case 4:18-cv-00251-MW-CAS Document 65 Filed 07/24/18 Page 29 of 40
and parking problems at other early voting locations. See, e.g., ECF No. 29, at
¶ 12 (describing how closest early voting site to UF campus had “influx of
students using the various shuttle programs” which “created congestion and
resulted in longer wait times”).
The above rationales extend to Defendant’s third claimed interest in the
Opinion—avoiding on-campus disruption. A supervisor of elections is the more
appropriate authority to evaluate the potential disruption an early voting site
would create. Moreover, an early voting site would alleviate some of the
disruption that exists on Election Day voting sites on campuses. See supra, at
25 (describing long lines and crowds that accompany on-campus voting sites
on Election Day).
Defendant’s lack of precise interests is all the more glaring when
weighted against Plaintiffs’ significant burdens. While a significant burden
could be weighed against, and justified by, precise, sufficiently weighty
government interests, Defendant has failed to articulate precise and
sufficiently weighty interests in the Opinion to justify Plaintiffs’ significant
burdens on their voting rights. Plaintiffs have established a substantial
likelihood of success on the merits of their First and Fourteenth Amendment
Case 4:18-cv-00251-MW-CAS Document 65 Filed 07/24/18 Page 30 of 40
Defendant’s Opinion also violates Plaintiffs’ Twenty-Sixth Amendment
rights because it is intentionally discriminatory on account of age. The TwentySixth Amendment states that “[t]he right of citizens of the United States, who
are eighteen years of age or older, to vote, shall not be denied or abridged by
the United States or any state on account of age.” U.S. CONST. amend. XXVI.
acknowledged the “dearth of guidance on what test applies.” N.C. State
Conference of the NAACP v. McCrory, 182 F. Supp. 3d 320, 522 (M.D.N.C.
2016), rev’d on other grounds, 831 F.3d 204 (4th Cir. 2016); see also Nashville
Student Org. Comm. v. Hargett, 155 F. Supp. 3d 749, 757 (M.D. Tenn. 2015)
(“[T]here is no controlling caselaw . . . regarding the proper interpretation of
the Twenty-Sixth Amendment or the standard to be used in deciding claims
for Twenty-Sixth Amendment violations based on an alleged abridgment or
denial of the right to vote.”). A consensus has been emerging, however, as
recent courts have applied the Arlington Heights standard for Twenty-Sixth
Amendment claims. One Wis. Inst., Inc. v. Thomsen, 198 F. Supp. 3d 896, 926
(W.D. Wis. 2016); Lee v. Va. State Bd. of Elections, 188 F. Supp. 3d 577, 609
(E.D. Va. 2016), aff’d, Lee, 843 F.3d 592 (4th Cir. 2016).
This Court agrees with the Thomsen court’s reasoning on applying this
standard. The Amendment’s text is “patterned on the Fifteenth Amendment
Case 4:18-cv-00251-MW-CAS Document 65 Filed 07/24/18 Page 31 of 40
. . . suggest[ing] that Arlington Heights provides the appropriate framework”
and Anderson-Burdick likely is unfitting because applying it would indicate
the Twenty-Sixth Amendment “‘contributes no added protection to that
already offered by the Fourteenth Amendment.’” Thomsen, 198 F. Supp. 3d at
926 (quoting Walgren v. Bd. of Selectmen of Amherst, 519 F.2d 1364, 1367 (1st
Cir. 1975)). 16 Accordingly, this Court applies the Arlington Heights framework
to Plaintiffs’ Twenty-Sixth Amendment claim.
“The impact of the official action—whether it ‘bears more heavily on one
[age-group] than another,’ . . . may provide an important starting point.” Vill.
of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977)
(quoting Washington v. Davis, 426 U.S. 229, 242 (1976). “Sometimes a clear
pattern, unexplainable on grounds other than [age] emerges from the effect of
the state action even when the governing legislation appears neutral on its
face.” Id. Absent a “stark” pattern, “impact alone is not determinative.” Id.
discrimination. It is unexplainable on grounds other than age because it bears
so heavily on younger voters than all other voters. Defendant’s stated interests
for the Opinion (following state law, avoiding parking issues, and minimizing
The parties concede that Arlington Heights is an acceptable framework for Plaintiffs’ TwentySixth Amendment claim. ECF No. 36, at 33 n.15; ECF No. 62, at 67.
Case 4:18-cv-00251-MW-CAS Document 65 Filed 07/24/18 Page 32 of 40
on-campus disruption) reek of pretext. 17 Cf. Veasey v. Abbot, 830 F.3d 216, 235–
36 (5th Cir. 2016) (discussing pretextual characteristics in racially
discriminatory election law). While the Opinion does not identify college
students by name, its target population is unambiguous and its effects are
lopsided. The Opinion is intentionally and facially discriminatory.
This Court does not lightly compare contemporary laws and policies to
more shameful eras of American history. But addressing intentional
discrimination does not require kid gloves. In 1910, Oklahoma amended its
constitution to create exemptions to the state’s literacy test; namely, anyone or
his descendant who could vote on January 1, 1866—the so-called grandfather
clause—“or who was at that time resided in some foreign nation” need not take
a literacy test. Guinn v. United States, 238 U.S. 347, 356 (1915). January 1,
1866 was no coincidence—the overwhelming majority of African-Americans
could not vote prior to that day because of, among other reasons, slavery and
the absence of the Fifteenth Amendment’s protections. While the Court
acknowledged that Oklahoma’s amendment “contains no express words”
targeting African-Americans, “the standard itself inherently brings that result
This Twenty-Sixth Amendment analysis differs from this Court’s Anderson-Burdick analysis,
which requires a balancing of burdens and governmental interests. In balancing Plaintiffs’
burdens and Defendant’s interests, this Court presumed the Opinion was nondiscriminatory.
Supra, at 17. This Court concluded that Defendant’s interests were, to understate, weak, meaning
Plaintiffs’ significant burdens outweighed Defendant’s interests in the Opinion. In the TwentySixth Amendment context, this Court is more willing to call out a pretextual rationale—or “a
banana a banana,” in Plaintiffs’ counsel’s words. ECF No. 62, at 72.
Case 4:18-cv-00251-MW-CAS Document 65 Filed 07/24/18 Page 33 of 40
into existence.” Id. at 364. Despite “seek[ing] in vain for any ground which
would sustain any other interpretation” of the amendment, the Court
unanimously determined the provision violated the Fifteenth Amendment
because it intentionally targeted a discrete group seeking the vote. Id.
So too here. This Court has “s[ought] in vain for any ground which would
sustain” a non-discriminatory interpretation of the Opinion both under the
flexible Anderson-Burdick standard and now the Twenty-Sixth Amendment.
Id. But the Opinion’s scope and effects are clear abridgements of voting rights
justified by, at best, weak interests. While Oklahoma in 1910 abridged voting
rights by choosing an invidious date to exclude African-Americans from voting,
Florida in 2014 limited places to stymie young voters from early voting.
Even more, “[t]he historical background of the decision” is another source
to reveal “invidious purposes.” Arlington Heights, 429 U.S. at 267. In 2013,
Florida’s leading policymakers were expanding ballot access across the board.
Defendant even recommended expanding early voting sites and giving
supervisors of elections more flexibility. ECF No. 24, Ex. C, at 5 & 7–8.
Defendant’s Opinion stands as a shady contraction in a context of expansion
and easier access—the only contraction, in fact.
To Defendant’s credit, there is no evidence that the “specific sequence of
events leading up to the challenged decision” was problematic. Arlington
Heights, 429 U.S. at 267. Nor did Defendant “[d]epart from the normal
Case 4:18-cv-00251-MW-CAS Document 65 Filed 07/24/18 Page 34 of 40
procedural sequence” in issuing the Opinion. Id. But following procedural
formalities to intentionally discriminate on account of age does not
automatically attach constitutionality to a law or policy.
If a unanimous Senate, near-unanimous House of Representatives, and
38 ratifying states intended the Twenty-Sixth Amendment to have any teeth,
then the Amendment must protect those blatant and “unnecessary burdens
and barriers” on young voters’ rights. Worden v. Mercer Cty. Bd. of Elections,
61 N.J. 325, 345 (1972). 18 This Court can conceive of fewer ham-handed efforts
to abridge the youth vote than Defendant’s affirmative prohibition of oncampus early voting.
Because the Opinion is unexplainable on grounds other than age,
Plaintiffs have established a substantial likelihood of success on the merits of
their Twenty-Sixth Amendment claim.
The House of Representatives voted in favor of the Amendment 401-19. 117 CONG. REC. H7569
(Mar. 23, 1971). The Senate voted in favor of the Amendment 94-0. 117 CONG. REC. S5830 (Mar.
10, 1971). Soon afterwards, three-fourths of the States ratified the Amendment. 36 Fed. Reg.
12725 (July 7, 1971). Additional states have ratified the Amendment since its passage. Florida
Case 4:18-cv-00251-MW-CAS Document 65 Filed 07/24/18 Page 35 of 40
Plaintiffs must also demonstrate they will suffer irreparable injury
without a preliminary injunction. Siegel, 234 F.3d at 1176 (citing McDonald’s
Corp., 147 F.3d at 1306). They have. 19
“An injury is ‘irreparable’ only if it cannot be undone through monetary
remedies.” Cunningham v. Adams, 808 F.2d 815, 821 (11th Cir. 1987) (quoting
Cate v. Oldham, 707 F.2d 1176, 1189 (11th Cir. 1983). “The possibility that
adequate compensatory or other corrective relief will be available at a later
date, in the ordinary course of litigation, weighs heavily against a claim of
irreparable harm.” Sampson v. Murray, 415 U.S. 61, 90 (1974). Accordingly,
irreparable injury is presumed when “[a] restriction on the fundamental right
to vote” is at issue. Obama for Am., 697 F.3d at 436. Once the election comes
and goes, “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). As this Court
explained in another elections-related preliminary injunction order, “[t]his
isn’t golf: there are no mulligans.” Fla. Democratic Party v. Scott, 215 F. Supp.
3d 1250, 1258 (N.D. Fla. 2016).
Here, Plaintiffs have all articulated irreparable injury to their voting
rights that will follow a denial of their motion for preliminary injunction.
This Court addresses Defendant’s redressability-related arguments—that granting Plaintiffs’
motion will not guarantee Plaintiffs an on-campus early voting site—in its Order Denying
Defendant’s Motion to Dismiss. ECF No. 64, at 7-12.
Case 4:18-cv-00251-MW-CAS Document 65 Filed 07/24/18 Page 36 of 40
Individual Plaintiffs will have to travel longer and farther to vote early, if they
are even able to. See supra at 26, n.14. Some will need to take multiple buses
or an Uber to cast a ballot. ECF No. 30, at ¶ 10; ECF No. 32, at ¶ 7. The
organizational Plaintiffs’ will suffer irreparable injury because their members
will have to expend more resources and time to assist voters in accessing offcampus early voting. ECF No. 27, at ¶ 14; ECF No. 28, at ¶ 18. Those members
will also be injured in having an on-campus early voting site affirmatively
prohibited by Defendant’s Opinion. ECF No. 27, at ¶ 15; ECF No. 38, at ¶ 18.
Considering the constitutional injuries and the one-shot nature of
elections, Plaintiffs have established irreparable injury would follow a denial
of their motion.
This Court next considers whether “the threatened injury to the movant
outweighs whatever damage the proposed injunction may cause the opposing
party.” Siegel, 234 F.3d at 1176. This is not a close call. On the one hand, the
threatened injury is the violation of Plaintiffs’ First, Fourteenth, and TwentySixth Amendment rights—and the First, Fourteenth, and Twenty-Sixth
Amendment rights of nearly 830,000 public college and university students
On the other hand, Defendant’s far-reaching, discriminatory Opinion
would no longer have any effect. That is hardly inequitable “damage” to
Case 4:18-cv-00251-MW-CAS Document 65 Filed 07/24/18 Page 37 of 40
Defendant. Id. After all, the Opinion’s invalidation only restores supervisors’
of elections discretion in designating early voting sites according to the Early
Voting Statute. While Florida’s 67 election supervisors must finalize a list of
all early voting sites by July 29, 2018 for the August primary, Florida’s
supervisors could also not do so. Defendant could very well be correct that
“adding one more task . . . could have a disruptive, cascading effect on [the
supervisors’] well-planned timeline[s]” and they could decline to designate any
on-campus early voting sites. ECF No. 45, at 27. They might agree that adding
additional early voting sites “would inject unnecessary confusion and
uncertainty.” Id. at 3. But the benefits of barring supervisors from having that
choice pales in comparison to the voting rights of 830,000 young voters. 20
Finally, an injunction is unquestionably in the public interest. “The
vindication of constitutional rights . . . serve[s] the public interest almost by
definition.” League of Women Voters of Fla. v. Browning, 863 F. Supp. 2d 1155,
1167 (N.D. Fla. 2012). Quite simply, allowing for easier and more accessible
voting for all segments of society serves the public interest. “Cementing
unconstitutional obstacles to ‘that right strike at the heart of representative
Defendant also makes an argument that Plaintiffs’ lawsuit is too late because the Opinion is
more than four years old. ECF No. 45, at 26–28. Individual Plaintiffs persuasively point out that
none of them could vote in 2014; in fact, Alexander Adams is voting for the first time in 2018.
ECF No. 47, at 11. It is up to the supervisors of elections to determine if it is “too late” to add oncampus early voting site for the 2018 elections. ECF No. 45, at 28.
Case 4:18-cv-00251-MW-CAS Document 65 Filed 07/24/18 Page 38 of 40
government.’” Fla. Democratic Party, 215 F. Supp. 3d at 1258 (quoting
Reynolds v. Sims, 377 U.S. 533, 555 (1964)).
Voter turnout in the United States is at less than impressive levels.
Younger voters turn out at noticeably lower rates than older voters—53
percent for those Florida voters aged 18 to 29 versus 70 percent for all
registered Florida voters in 2016. Smith Rep., at 7–8. Throwing up roadblocks
in front of younger voters does not remotely serve the public interest. Abridging
voting rights never does.
This Court is not the Early-Voting Czar. Except for the invalidation of
Defendant’s Opinion, nothing must change because of this Order. This Court
does not order the supervisors of elections to designate a single early voting
site on a single college campus; rather, this Order removes the handcuffs from
Florida’s supervisors of elections and restores their discretion in setting early
IT IS ORDERED:
1. Plaintiffs’ Motion for Preliminary Injunction, ECF No. 22, is
2. The Secretary of State is preliminary enjoined from implementing or
enforcing the Early Voting Statute in any way prohibiting or
Case 4:18-cv-00251-MW-CAS Document 65 Filed 07/24/18 Page 39 of 40
discouraging the use of any city hall, permanent public library
facility, fairground, civic center, courthouse, county commission
building, stadium, convention center, government-owned senior
center, or government-owned community center for early voting
because that facility is related to, designed for, affiliated with, or part
of a college or university, including through the use of the Secretary
of State’s powers to obtain and maintain uniformity in the
interpretation and implementation of Florida’s election laws;
3. The Secretary of State shall issue a directive to the supervisors of
elections advising them that the interpretation of the Early Voting
Statute that excludes from consideration as early voting sites any
facilities related to, designed for, affiliated with, or part of a college or
university, is unconstitutional and, accordingly, the supervisors of
elections retain discretion under the Early Voting Statute to place
early voting sites at any city hall, permanent public library facility,
fairground, civic center, courthouse, county commission building,
stadium, convention center, government-owned senior center, or
government-owned community center, including any such site as may
be related to, designed for, affiliated with, or part of a college or
university. The Secretary shall include in the directive a copy of this
Case 4:18-cv-00251-MW-CAS Document 65 Filed 07/24/18 Page 40 of 40
4. The Secretary of State shall file in this Court’s electronic case filing
system a Notice of Compliance with the above paragraphs on or before
Friday, July 27, 2018.
5. The preliminary injunction set out above will take effect upon the
posting of security in the amount of $500 for costs and damages
sustained by a party found to have been wrongfully enjoined.
Plaintiffs will immediately notify Defendant when the bond has been
posted and thereafter file proof of such notice in this Court’s electronic
case files systems.
SO ORDERED on July 24, 2018.
s/Mark E. Walker
Chief United States District Judge
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