United States District Court, N.D. Florida, Tallahassee Division
ORDER GRANTING PLAINTIFFS' MOTION FOR PRELIMINARY
E. WALKER CHIEF UNITED STATES DISTRICT JUDGE
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.
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
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. 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.
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 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,
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.
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.
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.
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.
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.
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.
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.
are six university students and two organizations, the League
of Women Voters and the Andrew Goodman
Foundation. 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.
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 ¶
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.
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. 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.
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.
reaching the merits of Plaintiffs' motion, this Court
addresses some threshold issues.
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.
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.
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.
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.”).
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
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).
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.
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. 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
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.
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.
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).
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.
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.
examine alleged violations of the First and Fourteenth
Amendment's fundamental right to vote under a balancing