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Jacobson v. Lee

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

November 15, 2019

NANCY CAROLA JACOBSON, et al., Plaintiffs,
LAUREL M. LEE, et al., Defendant/Intervenors.


          Mark E. Walker, Chief United States District Judge

         In political circles, it is widely believed that the candidate who is listed first on the ballot has an advantage in the election-an advantage which can be decisive.[1] This advantage supposedly comes from a phenomenon called the primacy effect, which is the human tendency to choose the first item in a list of options. The portion of the vote a candidate supposedly gains this way is called the “primacy effect” vote, the “windfall vote, ” or the “donkey vote.”[2] See Sarvis v. Judd, 80 F.Supp.3d 692, 699 (E.D. Va. 2015).

         In Florida, the order in which candidates appear on the ballot is determined by the previous election for governor. The party in control of the Governor's Mansion has its candidates listed first in every race, all along the ballot. The party that came in second has its candidates listed in the second position in each race. So, if the Governor of Florida is a Democrat, then Democrats will be listed first in every race on every ballot for the next four years, just because they are also Democrats.

         The implication is obvious. Assuming the so-called “donkey vote” exists, Florida's ballot order statute ensures one party's candidates receive that advantage in every race, all down the ballot, in every election. In practical terms, when the governor is a Democrat, this means every Democratic candidate has a small but significant advantage in every election over the Republican candidate, and that they have this advantage solely because they are Democrats. When a Republican is governor, Republicans have the advantage, solely because they are Republicans.

         The first issue in this case is whether Plaintiffs have proven the primacy effect exists and affects Florida's elections. This Court finds they have done so. The second issue is whether the Constitution allows a state to put its thumb on the scale and award an electoral advantage to the party in power. The answer is simple. It does not.

         The Florida Statute at Issue

         Florida's ballots are arranged in an office block pattern, meaning that all the candidates for a given office are listed together in a section of the ballot labelled with the title of the office they are running for. § 101.151(2)(a), Fla. Stat. (2019). Within each office block, the candidates' names are arranged according to the following scheme:

The names of the candidates of the party that received the highest number of votes for Governor in the last election in which a Governor was elected shall be placed first for each office on the general election ballot, together with an appropriate abbreviation of the party name; the names of the candidates of the party that received the second highest vote for Governor shall be placed second for each office, together with an appropriate abbreviation of the party name.

Id. § 101.151(3)(a).[3] For all partisan races in the general election, therefore, the candidates affiliated with the political party of the last-elected governor will be listed first within each office block.

         Preliminary Miscellanea

         In what has become a familiar exercise for this Court in cases concerning voting rights and procedure, Defendants[4] throw a hodgepodge of preliminary issues at the wall, hoping one will stick and prevent this Court from considering this case on the merits. See, e.g., Rivera Madera v. Detzner, 325 F.Supp.3d 1269, 1275-78 (N.D. Fla. 2018); League of Women Voters of Fla., Inc. v. Detzner, 314 F.Supp.3d 1205, 1212-14 (N.D. Fla. 2018); Fla. Democratic Party v. Detzner (Fla. Democratic Party I), Case No. 4:16cv607-MW/CAS, 2016 WL 6090943, at *4-*5 (N.D. Fla. Oct. 16, 2016); Fla. Democratic Party v. Scott (Fla. Democratic Party II), 215 F.Supp.3d 1250, 1254-55 (N.D. Fla. 2016). In the present case, Defendants claim Plaintiffs lack standing; that Plaintiffs' claims are barred by the applicable statute of limitations, estoppel, and laches; and that this case is not justiciable.

         In a prior order, this Court summarily rejected Defendants' arguments on these preliminary matters as “unpersuasive.” ECF No. 158 at 1. Defendants renewed these arguments at trial citing supplemental authority, and this Court remains unpersuaded. Although it entails a lengthy diversion to tilt at Defendants' windmills, this Court will address each preliminary matter in turn.


         This Court need not struggle with the question of justiciability. The Supreme Court has summarily affirmed a district court's decision which held that, where applicable law required candidates to be listed on the ballot in the order in which they filed their qualification paperwork, a discretionary policy of resolving ties in favor of incumbents was “a purposeful and unlawful invasion of [the] plaintiffs' Fourteenth Amendment right to fair and evenhanded treatment.” Mann v. Powell, 314 F.Supp. 677, 679 (N.D. Ill. 1969), aff'd without opinion, 398 U.S. 988 (1970). The Supreme Court's summary affirmances are binding precedent unless and until the Court specifically disclaims them. See Hicks v. Miranda, 422 U.S. 332, 344 (1975) (holding “that the lower courts are bound by summary decisions by this Court until such time as this Court informs them that they are not” (internal marks and quotation omitted)); see also Hardwick v. Bowers, 760 F.2d 1202, 1207 (11th Cir. 1985), rev'd on other grounds, Bowers v. Hardwick, 478 U.S. 186 (1986) (“A summary affirmance of the Supreme Court has binding precedential effect.”).

         The strength of this principle is such that summary affirmances by the Supreme Court remain binding even in the face of decades of seemingly contrary decisions. In Hand v. Scott, 285 F.Supp.3d 1289 (N.D. Fla. 2018), this Court addressed the precedential effect of the Supreme Court's summary affirmance of Beacham v. Braterman, 300 F.Supp. 182 (S.D. Fla. 1969), aff'd without opinion, 369 U.S. 12 (1969). This Court concluded it was not bound by Beacham because “[u]nlike a fine wine, this summary affirmance has not aged well” in light of subsequent Supreme Court decisions which seemed to recede from, or at least contradict, that decision. 285 F.Supp.3d at 1307. On appeal from this Court, the United States Court of Appeals for the Eleventh Circuit admonished that “we are bound to follow Supreme Court precedent in Beacham” and the Supreme Court's other “summary determinations.” Hand v. Scott, 888 F.3d 1206, 1208 (11th Cir. 2018). The summary affirmance of Mann would alone compel the conclusion that Plaintiffs' claims are justiciable.

         Furthermore, in Cook v. Gralike, 531 U.S. 510 (2001), the Supreme Court held a provision of the Missouri Constitution which required the words “DISREGARDED VOTERS' INSTRUCTIONS ON TERM LIMITS” to appear alongside the names of certain candidates on Missouri's ballots was unconstitutional. Defendants agree Cook is binding authority-in fact, Intervenors cited it during trial of this case in response to this Court's question of whether a law could be challenged which placed a “thumbs-up” symbol next to certain candidates on the ballot, T. at 42-43, 70.[5] Cook clearly holds that questions of what appears on the ballot and how are justiciable. Defendants' arguments make up in temerity for what they lack in merit.

         Notwithstanding those binding precedents, Defendants argue that the ordering of candidates' names on the ballot is a nonjusticiable political question, relying on the Supreme Court's recent decision in Rucho v. Common Cause, 139 S.Ct. 2484 (2019). In that case, the Court decided “that partisan gerrymandering claims present political questions beyond the reach of the federal courts” because resolving such claims would require federal courts “to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions.” Id. at 2506-07. Such claims are problematic, the Court explained, because they

inevitably ask the courts to make their own political judgment about how much representation particular political parties deserve-based on the votes of their supporters-and to rearrange the challenged districts to achieve that end.

Id. at 2499. But the Court specifically distinguished other types of voting-rights claims, such as “one-person, one-vote rule” claims which are “relatively easy to administer as a matter of math, ” id. at 2501; and even other types of gerrymandering claims, such as racial gerrymandering, id. at 2502. Unlike claims of partisan gerrymandering, the Court concluded, claims of vote dilution or racial gerrymandering “could be decided under basic equal protection principles, ” id. at 2496, without the need for a federal court to decide whether the legislature's decision is fair. Defendants contend that, if partisan gerrymandering claims are political questions, ballot order claims must be too.

         Hogwash. The legislative power is not a Midas touch that gilds a matter on contact and insulates it from judicial review, and a decision does not become a political question merely because it is made by a political branch of government. See Fla. Democratic Party II, 215 F.Supp.3d at 1258-59 (“It has been suggested that the issue of extending the voter registration deadline is about politics. Poppycock. This case is about the right of aspiring eligible voters to register and have their votes counted.”). If this were so, federal courts would be unable to review legislative enactments of any kind and would instead be bound to slavishly defer to legislative enactments without respect to the dictates of the Constitution. This plainly is not the case.[6] See also Williams v. Rhodes, 393 U.S. 23, 28 (1968) (explaining the argument that ballot access claims were nonjusticiable political questions had been “squarely rejected” and “requires little discussion”). And by its plain terms, Rucho is an extremely narrow decision. The Court in Rucho explained in no uncertain terms that its reasoning was limited to claims of partisan gerrymandering, and did not even extend it to other types of gerrymandering claims, let alone other species of election law claims such as the one this case presents. Rucho, 139 S.Ct. at 2501-02.[7]

         This case asks this Court to apply nothing more than “basic equal protection principles, ” id. at 2496, and is therefore justiciable under any fair reading of Rucho. Plaintiffs do not ask this Court to determine whether section 101.151(3)(a) treats all candidates fairly in light of their partisan affiliation; rather, they ask this Court to determine whether it treats all candidates equally without regard to their partisan affiliation. This question does not implicate issues of political “fairness, ” and to contend otherwise “is worse than solemn mockery.” See Marbury, 1 Cranch at 180.

         As explained in more detail below, the issues presented in this case are not novel. In a jurisprudential sense, they are not even particularly challenging. They are “grounded in ‘a limited and precise rationale' and [are] ‘clear, manageable, and politically neutral,' ” because they are “basic equal protection principles, ” nothing more. Rucho, 139 S.Ct. at 2496-98 (quoting Vieth v. Jubelirer, 541 U.S. 267, 306- 08 (2004) (Kennedy, J., concurring in the judgment)). The fact that this Court must determine which level of scrutiny to apply in the context of an equal protection claim also is not a new idea; in point of fact, Disney World, the states of Alaska and Hawaii, and the undersigned himself are newer additions to the world than this concept.[8] See, e.g., United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938) (noting the possibility of “a correspondingly more searching judicial inquiry” and “more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment” when legislation impacts fundamental rights or protected classes). As detailed below, the analytical framework this Court applies today has been applied numerous times by this Court and other federal courts, without difficulty or confusion. Cf. Rucho, 139 S.Ct. at 2491 (holding a claim was not justiciable because, in part, courts had “struggled without success over the past several decades to discern judicially manageable standards for deciding such claims”). Although this Court must make hard judgments about the effects and justifications of the challenged statute, there is no strange misprision in the law which might cloud this Court's perceptions and confuse its judgment. This Court simply does not face the same sort of conundrum the Supreme Court did in Rucho.

         In sum, therefore, Defendants claim this issue is not justiciable, but then rely upon cases which are binding precedent on this Court and show not just that these issues are indeed justiciable but also that the content and ordering of candidates on the ballot can violate voters' constitutional rights. Defendants' reliance on these cases cannot be reconciled with their position that this Court cannot decide the present case. In the alternative, Defendants ask this Court to transmogrify a recent Supreme Court decision into a far more expansive ruling than it was, in contradiction of clear, explicit limits announced in that decision itself and of its fundamental rationale. Even if this Court had the power to overlook those restrictions, this Court would nevertheless conclude this case was justiciable. No matter the trappings Defendants try to drape it in, this donkey is a donkey, not a racehorse.


         A party has standing to sue if they have suffered an injury in fact which is fairly traceable to the defendant's conduct and which is likely to be redressed by a decision in their favor. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). Defendants claim Plaintiffs have failed to prove the first and third elements of this rule-that is, they claim Plaintiffs have not suffered an injury in fact and have not proven their claims are redressable. Neither of these arguments passes muster.

         Defendants' arguments concerning injury in fact fall into two basic categories. Regarding the organizational Plaintiffs in this action, Defendants contend those Plaintiffs have not shown they suffered any concrete and particularized injury because they did not show Florida's ballot order statute impacted any specific resource allocation decision; and Defendants furthermore contend that harm to Democratic voters generally (as Defendants characterize Plaintiffs' claims) is not sufficient to impart standing to the organizational Plaintiffs. Regarding the individual Plaintiffs in this case, Defendants argue no individual Plaintiff proved Florida's ballot order statute impacted their individual voting rights-that is, Florida's ballot order statute did not prevent them from voting and having their vote counted.

         The organizational Plaintiffs have standing to sue based on injuries to themselves or to their members, if either has been affected in a tangible way. See U. Food & Commercial Workers Union Local 751 v. Brown Grp., Inc., 517 U.S. 544 (1996). An organization has standing to sue to

enforce the rights of its members “when its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization's purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.”

Arcia v. Fla. Sec'y of State, 772 F.3d 1335, 1342 (11th Cir. 2014) (quoting Friends of the Earth, Inc. v. Laidlaw Envt'l Servs. (TOC), Inc., 528 U.S. 167, 181 (2000)). “[T]he rule in this Circuit is that organizational plaintiffs need only establish that ‘at least one member faces a realistic danger' of suffering an injury.” Id. (quoting Fla. State Conference of the NAACP v. Browning, 522 F.3d 1153, 1163 (11th Cir. 2008)). As this Court has previously explained, “political parties have standing to assert, at least, the rights of [their] members who will vote in an upcoming election.” Fla. Democratic Party II, 215 F.Supp.3d. at 1254 (citing Fla. Democratic Party v. Hood, 342 F.Supp.2d 1073, 1078-79 (N.D. Fla. 2004) (Hinkle, J.)). In that case, which concerned extension of Florida's voter registration period, this Court concluded the plaintiff had standing to sue on its members' behalf, reasoning the plaintiff “need not identify specific aspiring eligible voters who intend to register as Democrats and who will be barred from voting; it is sufficient that some inevitably will.” Id.

         Plaintiffs in the present case go one step further. Not only do the organizational Plaintiffs provide evidence of how Florida's ballot order statute impacts their own interests and the interests of their numerous members, they are also joined in this suit by individual Plaintiffs whose individual interests are affected by Florida's ballot order statute independent of their membership in an organization. The organizational Plaintiffs represent their members, many of whom are voters, and their common mission in one form or another is to support Democratic candidates for elected office. Contrary to Defendants' theory, an injury is not converted into a “generalized grievance” solely because a large number of people are aggrieved by it. Furthermore, “[e]ach provision of a[n election] code, ‘whether it governs the registration and qualifications of voters, the selection and eligibility of candidates, or the voting process itself, inevitably affects-at least to some degree-the individual's right to vote and his right to associate with others for political ends.' ” Burdick v. Takushi, 504 U.S. 428, 433 (1992) (quoting Anderson v. Celebrezze, 460 U.S. 780, 788 (1983)); see also Id. at 434 (“There is no doubt that the Hawaii election laws, like all election regulations, have an impact on the right to vote.” (emphasis added)). In contrast to Defendants' hyper-formalistic approach to voting rights, “the rights of voters and the rights of candidates do not lend themselves to neat separation; laws that affect candidates always have at least some theoretical, correlative effect on voters.” Bullock v. Carter, 405 U.S. 134, 143 (1972) (emphasis added). It is thus no answer to Plaintiffs' claims for Defendants to argue that individual Plaintiffs have been able to vote and have their vote counted, or that organizational Plaintiffs do not vote but instead attempt to support and elect Democratic candidates.[9] This Court declines to adopt Defendants' cramped (and jurisprudentially anomalous) interpretation of the scope of the right to vote.[10]

         It is worth noting again that, in seeking to intervene in this case, Intervenors claimed Republican candidates and the organizations which support them-as organizational Plaintiffs support Democratic candidates-“stand to be most directly harmed by a change” in Florida's ballot order scheme. ECF No. 23 at 16. In other words, Intervenors' whole interest in this lawsuit rests upon the idea that a change in Florida's ballot order scheme would worsen their position by depriving them of an existing advantage. But they now claim that Florida's ballot order scheme does not injure Plaintiffs, or in other words that Democratic candidates suffer no cognizable disadvantage, and that Plaintiffs therefore lack standing. Because the electorate is finite, elections are a zero-sum game, and this Court is at a loss to see how awarding an advantage to one group of candidates would not also disadvantage a competing group. See Green Party of Tenn. v. Hargett, 791 F.3d 684, 695 (6th Cir. 2015) (holding that requiring minor political parties to pass same electoral threshold as major parties in less time violates the Equal Protection Clause); Nat. Law Party of U.S. v. Fed. Election Comm'n, 111 F.Supp.2d 33, 44 (D.D.C. 2000) (explaining that, in the context of Equal Protection Clause claims, injury arises from denial of the opportunity to compete on an equal footing). Intervenors cannot contend both that their interests are implicated but Plaintiffs have not been injured without doing violence to basic logic. Plaintiffs have satisfied the first element of Article III standing.

         Defendants also claim Plaintiffs have not satisfied the redressability prong of standing; first, because Plaintiffs' requested solution will not remove the influence vel non of the primacy effect on elections, and second, because this Court lacks the power to order a specific remedy. These two distinct arguments share a common flaw in that they misconstrue Plaintiffs' claims. Plaintiffs' alleged injury in this case is not based on the mere existence of the primacy effect vote and its impact on elections. Rather, their claims concern the fact that Florida's ballot order statute allocates the primacy effect vote to groups of candidates on the sole basis of partisan affiliation. If the remedy (or remedies) Plaintiffs seek would cure this alleged injury on either basis-that is, by eliminating the primacy effect vote altogether, or by removing the alleged partisan basis for its allocation-then Plaintiffs have shown redressability. In addition, “[t]o have Article III standing, a plaintiff “need not demonstrate anything ‘more than . . . a substantial likelihood' of redressability.” Wilding v. DNC Servs. Corp., No. 17-14194, 2019 WL 5539021, at *5 (11th Cir. Oct. 28, 2019) (quoting Duke Power Co. v. Carolina Envt'l Study Grp., Inc., 438 U.S. 59, 79 (1978)) (alteration in original); see also Id. (noting “even partial relief suffices for redressability” and citing Made in the USA Found. v. United States, 242 F.3d 1300, 1310-11 (11th Cir. 2001)). Defendants' contention that Plaintiffs have failed to identify a complete solution to the claimed injury is therefore inapposite.

         Furthermore, this Court need not have the ability to order a specific remedy for Plaintiffs to satisfy the redressability element of standing, so long as this Court has the power to order a remedy which will to some extent cure Plaintiffs' injury. If, as Plaintiffs allege, there are multiple means of arranging the candidates on Florida's ballots which would satisfy the Constitution and prevent Plaintiffs' alleged injuries from continuing forward, all that is required for Plaintiffs to have standing is for this Court to be empowered-as it is empowered-to say what the Constitution does and does not permit, even if this Court cannot order the Florida Legislature to adopt a specific ballot order scheme from among the available options. Indeed, as explained below, this is precisely what this Court will do. As a practical matter, there must be some sort of ballot order scheme, and as this Court will explain, the choice of which ballot order scheme Florida shall use is in this case a question for the Florida Legislature to resolve. But this Court has the power to determine whether Florida's existing ballot order scheme comports with the Constitution and to explain what the Constitution does and does not allow, i.e., “to say what the law is, ” Marbury, 1 Cranch at 177, and thus to decide whether there are certain ballot order schemes Florida cannot use. “This is of the very essence of judicial duty.” Id. at 178.

         Finally, Intervenors claim this Court cannot redress Plaintiffs' injuries because any new ballot order scheme would have to be implemented by third parties not before this Court; i.e., by county supervisors of elections and not Defendant Lee. If this argument sounds familiar to readers well versed in this Court's voting rights jurisprudence, there is a good reason for that. We have been here before.

As this Court notes with tiresome regularity, Defendant [Lee] is Florida's “chief election officer.” This statutory job description is not window dressing. The Secretary of State must “obtain and maintain uniformity in the interpretation and implementation of the election laws” and promulgate rules for the “proper and equitable interpretation and implementation of election laws. Additionally, the Department of State “shall have general supervision and administration of the election laws, corporation laws and such other laws as are placed under it by the Legislature.” . . . Defendant [Lee] has the responsibility to enforce the Department of State's rules on each county supervisor of elections. [She] also has the responsibility to “provide written directions and opinions to the supervisors of elections on the performance of their official duties with respect to . . . rules adopted by the Department of State.”

Rivera Madera, 325 F.Supp.3d at 1276 (internal marks and citations omitted) (final alteration in original). The Eleventh Circuit has agreed, denying a stay of this Court's ruling in a different case on the basis that, “[b]ecause the Secretary is the state's chief election officer with the authority to relieve the burden on Plaintiff's right to vote, she was appropriately sued for prospective injunctive relief.” Democratic Exec. Comm. of Fla. v. Lee, 915 F.3d 1312, 1318 (11th Cir. 2019). This Court, the parties, and-pursuant to the prior panel rule-even the Eleventh Circuit itself are bound by this holding unless and until the Eleventh Circuit recedes from it en banc. This issue is settled. It is perplexing that Intervenors would continue to raise it. Defendant Lee is the proper defendant against whom to award the relief Plaintiffs seek.

         Plaintiffs have shown they have suffered an injury in fact and this Court has the power to vindicate Plaintiffs' claims. Plaintiffs therefore have standing.

         Statute of Limitations

         Next, Defendant Lee claims Florida's statute of limitations bars Plaintiffs' claims.[11] Florida law provides a four-year limitation period for “action[s] founded on statutory liability, ” § 95.11(3)(f), Fla. Stat. (2019), and for “[a]ny action not specifically provided for in these statutes, ” id. § 95.11(3)(p). Florida's statute of limitations applies to the claims at issue in this action. See Boyd v. Warden, Holman Corr. Facility, 856 F.3d 853, 872 (11th Cir. 2017) (“All constitutional claims brought under § 1983 are tort actions and, thus, are subject to the statute of limitations governing personal injury actions in the state where the § 1983 action has been brought.”). In Florida, “[a] cause of action accrues when the last element constituting the cause of action occurs.” § 95.031(1), Fla. Stat. (2019); see also Hearndon v. Graham, 767 So.2d 1179, 1184-85 (Fla. 2000). Generally, the last element which will occur is the injury giving rise to the claim. State Farm Mut. Auto. Ins. Co. v. Lee, 678 So.2d 818, 821 (Fla. 1996).

         The Florida Legislature adopted Florida's ballot order scheme in 1951. Defendant Lee claims all subsequent harms flow from this enactment and therefore the statute of limitations began to run at that point, meaning Plaintiffs' timely filing window expired in 1955.[12] Of course, the issue is more complicated than that, and ultimately ties itself in knots. Each individual Plaintiff became aware of the alleged existence and effects of the primacy effect vote at various times, though under Florida law it is not clear whether this would be relevant. Compare Davis v. Monahan, 832 So.2d 708, 710-12 (Fla. 2002) (declining to apply the delayed discovery doctrine absent a statutory basis or allegations that the defendant's conduct delayed the plaintiff's discovery of the factual basis for the lawsuit) with Chappell v. Rich, 340 F.3d 1279, 1283 (11th Cir. 2003) (delayed discovery doctrine applies to section 1983 claims). And if any Plaintiff was not born (or founded) until after that point, what of their claim's accrual date? Assuming no other issues of access to courts apply, [13] under Defendant Lee's theory, Plaintiffs' individual claims accrued either in 1951 or at whatever point thereafter their constitutional rights were first allegedly violated, and became time-barred four years thereafter.

         If section 101.151(3)(a), Florida Statutes, had been applied only to an election seventy years ago, Defendant Lee's argument might have merit. As things stand, however, irrespective of how many times Plaintiffs allege their rights have been violated in the past, their rights are violated anew each time an election is held and the candidates' names are arranged in their respective office blocks in the order prescribed by section 101.151(3)(a). Moreover, Plaintiffs seek declaratory and injunctive relief, not damages or other retrospective relief. By way of analogy, assume there was a Florida Statute which required all registered Republicans to pay $10 at their designated polling site before voting in each election. Assume this flagrantly illegal statute was adopted in 1910, but never challenged-instead, for more than one hundred years, all registered Republicans quietly paid the infamous poll tax. Further assume that, in 2018, a few Republican voters-backed by Republican political organizations-decided enough was enough, and it was time to strike that statute from the books so as to avoid paying the $10 during the 2020 election. Each historical $10 payment would be a separate, recurring injury.

         In the present case, Plaintiffs contend their rights were violated each time an election was held and the challenged statute was enforced. The most recent election before Plaintiffs filed their claims was in 2016, and Plaintiffs filed their claims in 2018. If Florida's ballot order statute stands, it will be enforced during the 2020 election cycle and, Plaintiffs allege, their injuries will recur. Plaintiffs' claims relate to alleged violations of their rights which have occurred in the recent past and will continue to recur in the future. See Hillcrest Prop., LLC v. Pasco Cty., 754 F.3d 1279, 1282-83 (11th Cir. 2014) (explaining that, outside the context of substantive due process takings claims, “the harm inflicted by the statute is continuing, or does not occur until the statute is enforced-in other words, until it is applied, ” quoting Levald, Inc. v. City of Palm Desert, 998 F.2d 680, 688 (9th Cir. 1993)); see also Moore v. Ogilvie, 394 U.S. 814, 816 (1969) (holding election statute unconstitutional although the challenged election was over because the statute “remain[ed] and control[led] future elections, ” and the issue was therefore not moot). In short, the statute of limitations does not bar Plaintiffs' claims.

         Laches and ...

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