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Bellitto v. Snipes

United States Court of Appeals, Eleventh Circuit

August 22, 2019

BRENDA SNIPES, in her official capacity as the Supervisor of Elections of Broward County, Florida, Defendant-Appellee, AMERICAN CIVIL RIGHTS UNION, Plaintiff - Appellant, 1199SEIU UNITED HEALTHCARE WORKERS EAST, Intervenor Defendant-Appellee.

          Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 0:16-cv-61474-BB

          Before MARCUS, GRANT and HULL, Circuit Judges.


         The National Voter Registration Act requires state election officials to make a reasonable effort to remove certain ineligible registrants from the voter rolls. The American Civil Rights Union ("ACRU") claims that Brenda Snipes, the former Broward County Supervisor of Elections, failed to satisfy her list-maintenance obligations. The district court, after a bench trial, concluded that the National Voter Registration Act ("NVRA") requires a reasonable effort to remove only those voters who become ineligible because of death or change of address and that Snipes reasonably conducted a program to do just that. ACRU appeals from those determinations.

         This appeal requires us to answer three related legal questions. First, is the NVRA's list-maintenance mandate confined to removing voters who become ineligible because they moved or died, or does the mandate extend to other bases of ineligibility as well, such as mental incapacity or criminal conviction? Second, does anything in the Help America Vote Act ("HAVA") broaden the NVRA's list-maintenance obligations? And finally, does the National Change of Address procedure outlined in the NVRA create a safe harbor for reasonable list maintenance regarding voters who have moved? As for the first question, the statute could not be clearer: the states and their subsidiaries are required to conduct a general program of list maintenance that makes a reasonable effort to remove voters who become ineligible on account of death or change of residence, and only on those two accounts. And nothing found in HAVA -- the latest congressional codification addressing voter registration -- changes what is required by the NVRA; indeed, HAVA repeatedly references compliance with the NVRA's list-maintenance mandates. Finally, the NVRA sets forth an explicit safe-harbor procedure by which the states may fulfill their list-maintenance obligations as to voters who move.

         Moreover, after thoroughly reviewing this record and having taken oral argument, we can discern no clear error in the district court's factual findings. As the trial court found, Snipes employed the statute's safe-harbor provision when she examined who may have changed his or her address in Broward County, and she also utilized reliable death records from the Florida Department of Health and the Social Security administration to identify and regularly remove deceased voters. The NVRA requires a reasonable effort to remove only those voters who become ineligible because of death or change of address. Based on the record developed in the five-day bench trial, the district court did not clearly err in finding that Broward's Election Supervisor conducted a program reasonably designed to accomplish these tasks. Accordingly, we affirm the judgment of the district court.


         The essential facts adduced at trial and the procedural history are these. American Civil Rights Union, Inc. ("ACRU") is a nonprofit corporation that works on election-integrity issues. From November 1, 2003, through the adjudication of this suit in district court and until the end of 2018, Brenda Snipes ("Snipes") was the Supervisor of Elections for Broward County, Florida, and oversaw the Broward County Supervisor of Elections Office ("BCSEO"). Although the NVRA centralizes coordinating responsibility in the state and a state-designated chief elections officer -- in Florida, the Secretary of State -- Florida law delegates primary authority for voter registration list maintenance to the county-level supervisors of elections. See 52 U.S.C. § 20509 ("Each State shall designate a State officer or employee as the chief State election official to be responsible for coordination of State responsibilities under this chapter."); Fla. Stat. § 98.015 (mandating that "[t]he supervisor of elections . . . shall update voter registration information, enter new voter registrations into the statewide voter registration system, and act as the official custodian of documents received by the supervisor related to the registration of electors and changes in voter registration status of electors of the supervisor's county" and requiring that "[e]ach supervisor shall ensure that all voter registration and list maintenance procedures conducted by such supervisor are in compliance with any applicable requirements . . . prescribed by . . . the National Voter Registration Act of 1993").[1]

         On January 26, 2016, Susan Carleson, the President of ACRU, sent Snipes a statutory notice letter pursuant to 52 U.S.C. § 20510(b), which affords the state an opportunity to correct any violation prior to the commencement of a private action under the National Voter Registration Act, Pub. L. No. 103-31, 107 Stat. 77 (codified as amended at 52 U.S.C. §§ 20501-20511 (2012)). The letter claimed that Broward County was "in apparent violation" of Section 8 of the NVRA, which requires the states regularly to conduct maintenance on its voter registration lists, removing certain ineligible voters. ACRU explained that it had compared registration totals to population data and concluded that Broward County had an "implausible" registration rate, yielding the strong inference that the County had inadequately maintained its voting lists. Snipes responded that Florida maintains a statewide voter registration database and that the state issues statewide guidelines and procedures for list maintenance, and referred ACRU to sections 98.045 and 98.065 of the Florida Statutes. Snipes asserted that contrary to ACRU's suggestion, Broward's registration rate had never exceeded 100% of residents during her tenure, and attached list-maintenance compliance certifications filed biannually with the Florida Department of State.

         On June 27, 2016, ACRU sued Broward County Supervisor Snipes in the United States District Court for the Southern District of Florida.[2] Count I of the Amended Complaint alleged that Snipes "failed to make reasonable efforts to conduct voter list maintenance programs, in violation of Section 8 of NVRA, 52 U.S.C. § 20507 and 52 U.S.C. § 21083(a)(2)(A) [a provision of the Help America Vote Act]." And Count II claimed that Snipes had "failed to respond adequately to Plaintiffs' written request for data, failed to produce or otherwise failed to make records available to Plaintiffs concerning Defendant's implementation of programs and activities for ensuring the accuracy and currency of official lists of eligible voters for Broward County, in violation of Section 8 of the NVRA, 52 U.S.C. § 20507(i)." On September 19, 2016, 1199SEIU United Healthcare Workers East ("1199SEIU"), a labor union, moved to intervene in the lawsuit pursuant to Rule 24 of the Federal Rules of Civil Procedure "to protect the interests of itself and its members and ensure that no voter, including its members, in Broward County has his or her registration improperly or illegally canceled as a result of the Plaintiffs' request for court-ordered voter 'list maintenance.'" The district court granted the motion to intervene.

         After completion of discovery, the parties cross-moved for summary judgment on Count II. The district court initially denied those motions, but later dismissed Count II sua sponte. The court concluded that it was without jurisdiction to adjudicate that claim because the American Civil Rights Union had failed to provide adequate statutory notice pursuant to § 20510(b). ACRU has not appealed from the entry of final summary judgment on Count II. The district court denied summary judgment on Count I, concluding that whether Snipes actually conducted an adequate general program of list maintenance to remove voters who had moved or died was a fact-intensive question, more appropriately resolved after a full airing at trial, particularly in light of ACRU's evidence of "very high voter registration rates" in Broward County.

         The district court conducted a bench trial, taking extensive testimony about registration rates, list-maintenance tools employed by the BCSEO, other tools that might be used to identify ineligible voters, and citizen complaints made to the BCSEO. Most relevant for our purposes, dueling experts testified in considerable detail regarding the registration rates in Broward County. ACRU called Scott Gessler, the former Colorado Secretary of State, to testify about voter list maintenance tools and offer his expert opinion about what constitutes a reasonable effort. BCSEO employees -- Director of Voter Services Mary Hall, IT Director Jorge Nunez, and Voter Services Coordinator Sharon Fleming -- as well as Snipes herself, in turn, testified about the procedures the County employs. The district court also reviewed thousands of pages of documentary evidence, including spreadsheets documenting voter removals and certifications of list maintenance that Snipes regularly filed with Florida's Department of State.

         On March 30, 2018, the trial court issued a lengthy opinion, making extensive findings of fact and conclusions of law, and entered final judgment in favor of Snipes. The district court concluded, as a legal matter, that the NVRA requires the state or the County to create a program of list maintenance that makes a reasonable effort to remove voters who become ineligible only by reason of death or change of address, and that, as a matter of fact, the evidence established that Snipes had made an adequate effort to do so, availing herself of the NVRA's change-of-address safe harbor and relying on state and Social Security administration death records in order to identify and remove deceased voters.

         ACRU has appealed from both determinations.



         "We review an issue of statutory interpretation de novo." Scimone v. Carnival Corp., 720 F.3d 876, 880 (11th Cir. 2013) (citing United States v. Murrell, 368 F.3d 1283, 1285 (11th Cir. 2004)). But we review for clear error factual findings made by a district court after a bench trial. Holton v. City of Thomasville Sch. Dist., 425 F.3d 1325, 1350 (11th Cir. 2005); Fed.R.Civ.P. 52(a). "Clear error is a highly deferential standard of review." Holton, 425 F.3d at 1350. A factual finding is clearly erroneous "when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Id. (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985)). In Anderson, the Supreme Court explained that the clear error standard

plainly does not entitle a reviewing court to reverse the finding of the trier of fact simply because it is convinced that it would have decided the case differently. The reviewing court oversteps the bounds of its duty under Rule 52(a) if it undertakes to duplicate the role of the lower court. In applying the clearly erroneous standard to the findings of a district court sitting without a jury, appellate courts must constantly have in mind that their function is not to decide factual issues de novo. If the district court's account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous.

Anderson, 470 U.S. at 573-74 (citation and quotation marks omitted). Finally, we review "[a] court's application of law to facts" de novo. Holston Invs., Inc. v. LanLogistics, Corp., 677 F.3d 1068, 1070 (11th Cir. 2012).


         The United States Constitution vests in the states the authority to regulate federal elections but reserves to Congress the prerogative to alter a state's procedures. U.S. Const. art. I § 4 ("The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of choosing Senators."). Three decades after passing the Voting Rights Act of 1965, and against the backdrop of waning election participation, Congress exercised its authority and adopted the National Voter Registration Act of 1993, Pub. L. No. 103-31, 107 Stat. 77 (codified as amended at 52 U.S.C. §§ 20501-20511 (2012)).

         The Act made three explicit findings: "(1) the right of citizens of the United States to vote is a fundamental right; (2) it is the duty of the Federal, State, and local governments to promote the exercise of that right; and (3) discriminatory and unfair registration laws and procedures can have a direct and damaging effect on voter participation in elections for Federal office and disproportionately harm voter participation by various groups, including racial minorities." 52 U.S.C. § 20501(a). In light of these findings, the statute elaborated as one set of goals "to establish procedures that will increase the number of eligible citizens who register to vote in elections for Federal office" and "to make it possible for Federal, State, and local governments to implement [the Act] in a manner that enhances the participation of eligible citizens as voters in elections for Federal office." 52 U.S.C.§ 20501(b)(1)-(2). But because Congress also recognized that easing registration barriers could threaten the integrity of our elections, the legislation set forth another set of goals: "to protect the integrity of the electoral process" and "to ensure that accurate and current voter registration rolls are maintained." Id. § 20501(b)(3)-(4).

         These twin objectives -- easing barriers to registration and voting, while at the same time protecting electoral integrity and the maintenance of accurate voter rolls -- naturally create some tension. Undoubtedly, a maximum effort at purging voter lists could minimize the number of ineligible voters, but those same efforts might also remove eligible voters. Conversely, preventing the states from removing registrants altogether would ensure that no eligible voters are removed, but, at the same time, maximize the risks associated with inaccurate voter rolls. Thus, Congress crafted a statute that sought to balance these competing interests.

         At the heart of this case is the meaning of Section 8(a) of the NVRA, which reads this way:

         In the administration of voter registration for elections for Federal office, each State shall--

(3)provide that the name of a registrant may not be removed from the official list of eligible voters except--
(A)at the request of the registrant;
(B)as provided by State law, by reason of criminal conviction or mental incapacity; or
(C)as provided under paragraph (4);
(4)conduct a general program that makes a reasonable effort to remove the names of ineligible voters from the official lists ...

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