United States District Court, N.D. Florida, Tallahassee Division
FINAL ORDER FOLLOWING BENCH TRIAL
E. Walker, Chief United States District Judge
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. 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.” See Sarvis v. Judd, 80
F.Supp.3d 692, 699 (E.D. Va. 2015).
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.
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.
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.
Florida Statute at Issue
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). 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.
has become a familiar exercise for this Court in cases
concerning voting rights and procedure,
Defendants 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
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
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
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.
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. 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.
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.
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. 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
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.
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. 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.
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.
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.
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.
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
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.
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. This Court declines to adopt
Defendants' cramped (and jurisprudentially anomalous)
interpretation of the scope of the right to
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.
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.
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.
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
have shown they have suffered an injury in fact and this
Court has the power to vindicate Plaintiffs' claims.
Plaintiffs therefore have standing.
Defendant Lee claims Florida's statute of limitations
bars Plaintiffs' claims. 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).
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. 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,  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.
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.
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