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League of Women Voters of Florida Inc. v. Detzner

United States District Court, N.D. Florida, Tallahassee Division

July 24, 2018

League of Women Voters of Florida, Inc., et al., Plaintiffs,
Kenneth W. Detzner, in his official capacity as the Florida Secretary of State, Defendant.



         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 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.

         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 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. 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 “government-owned 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 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 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 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.


         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 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 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 non-military 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, 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 “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 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]


         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]


         Courts examine alleged violations of the First and Fourteenth Amendment's fundamental right to vote under a balancing ...

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