Am. Civil Liberties Union of Fla., Inc. v. Byrd

Decision Date15 June 2022
Docket NumberCase No. 4:21-cv-190-AW-MJF
Citation608 F.Supp.3d 1148
Parties The AMERICAN CIVIL LIBERTIES UNION OF FLORIDA, INC., et al., Plaintiffs, v. Cord BYRD, in his official capacity as Florida Secretary of State, and the Florida Elections Commission, Defendants.
CourtU.S. District Court — Northern District of Florida

Max H. Gaston, Pro Hac Vice, Daniel Boaz Tilley, ACLU Foundation of Florida Inc., Miami, FL, Anya Anton Marino, Harvard Law School, Jamaica Plain, MA, Nicholas Warren, ACLU Foundation of Florida, Tallahassee, FL, for Plaintiffs.

George N. Meros, Jr., Tara R. Price, Shutts & Bowen LLP, Tallahassee, FL, for Defendant Florida Elections Commission.


Allen Winsor, United States District Judge

A Florida Statute prohibits any "person or political committee" from donating more than $3,000 "to a political committee that is the sponsor of or is in opposition to a constitutional amendment proposed by initiative." Fla. Stat. § 106.08(1)(a) 1. The issue in this case is whether that law comports with the First Amendment. The ACLU of Florida, together with several political committees—Fair Vote Florida, Our Votes Matter, and Florida Votes Matter (collectively, the Committee Plaintiffs)—sued Florida's Elections Commission (FEC) and Secretary of State, contending that it does not. ECF No. 53 (TAC) ¶ 1. I dismissed the claims against the Secretary for lack of standing. ECF No. 38 at 9, 16. But I granted a preliminary injunction against the FEC, concluding that Plaintiffs were likely to succeed on the merits and that an injunction was otherwise appropriate. Id. at 15-16. That preliminary injunction remains in place.

Plaintiffs have now moved for summary judgment, seeking a permanent injunction. ECF No. 41. The FEC has responded in opposition. ECF No. 60. In the meantime, the Legislature revised the statute (effective July 1, 2022), allowing unlimited contributions from Florida residents and political committees with Florida addresses. See H.B. 921, 27th Leg., 2d Reg. Sess. (Fla. 2022) (enacted at 2022 Fla. Sess. Law Serv. Ch. 2022-56).

Having carefully considered both sides’ arguments, including supplemental briefing addressing the statutory amendment, I now grant Plaintiffs’ motion.


The FEC opposes summary judgment on jurisdictional and substantive grounds. Jurisdictionally, it argues that the Committee Plaintiffs lack standing because they've withdrawn their ballot initiative petitions for 2022. ECF No. 60 at 6-7. On the merits, the FEC defends the law as a reasonable anti-fraud provision. See id. at 19. I address each in turn.


First, the FEC suggests that Plaintiffs lack standing. Although the FEC does little to develop this argument, federal courts must consider their own jurisdiction whether the parties raise it or not. Kelly v. Harris , 331 F.3d 817, 819 (11th Cir. 2003).

To maintain an action in federal court, a plaintiff must show—for each claim—that it has "(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision." Mack v. USAA Cas. Ins. Co. , 994 F.3d 1353, 1356 (11th Cir. 2021) (quoting Spokeo, Inc. v. Robins , 578 U.S. 330, 338, 136 S.Ct. 1540, 194 L.Ed.2d 635 (2016) ). It is Plaintiffs’ burden to show standing, and they must meet their burden at every stage of the litigation. See Lujan v. Defs. of Wildlife , 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).

At the preliminary injunction stage, I concluded Plaintiffs had standing to sue the FEC. ECF No. 38 at 4-5. But the FEC notes that things have changed: "it appears that currently none of the Committee Plaintiffs is a sponsor of any constitutional amendment proposed by ballot initiative." ECF No. 60 at 7. Thus, the FEC contends, "Plaintiffs’ standing is now squarely at issue." Id.

Standing "depends on the facts as they exist when the complaint is filed. " Lujan , 504 U.S. at 569 n.4, 112 S.Ct. 2130 (quoting Newman-Green, Inc. v. Alfonzo-Larrain , 490 U.S. 826, 830, 109 S.Ct. 2218, 104 L.Ed.2d 893 (1989) ); accord Focus on the Fam. v. Pinellas Suncoast Transit Auth. , 344 F.3d 1263, 1275 (11th Cir. 2003) ("Article III standing must be determined as of the time at which the plaintiff's complaint is filed."). And Plaintiffs have shown that when they sued, they had a cognizable injury. More specifically, the undisputed evidence shows a non-speculative likelihood that, without § 106.08, Fair Vote Florida would receive contributions exceeding $3,000. See Fla. Stat. § 106.08(7) (imposing criminal penalties on a "person who knowingly and willfully makes or accepts " donations that violate § 106.08(1) (emphasis added)); see also ECF No. 41-2 at 7:13-16 ("[W]e generally do raise larger amounts more than $3,000."); id. at 10:14-16 ("The donors that we work with, the donors that gives [sic ] to the campaign tend to give the large amounts."). They showed too that this injury flows directly from § 106.08, and that an order enjoining the statute's enforcement would redress that injury. Fair Vote Florida has standing.

The ACLU has standing too. It has offered unrebutted evidence that § 106.08 prevented it from offering greater in-kind and cash contributions to Fair Vote Florida and other Committee Plaintiffs than it otherwise would. See ECF No. 41-2 at 14:6-13. The other two Committee Plaintiffs may have had standing also, but when multiple plaintiffs seek injunctive relief, only one needs to show standing. See Watt v. Energy Action Educ. Found. , 454 U.S. 151, 160, 102 S.Ct. 205, 70 L.Ed.2d 309 (1981) (citations omitted). Here, at least two plaintiffs have.

Having standing at the outset does not guarantee, though, that the court's jurisdiction will continue. Intervening events can sometimes moot a plaintiff's claim, eliminating Article III jurisdiction. Although the Supreme Court has referred to mootness as "standing set in a time frame," Friends of the Earth, Inc. v. Laidlaw Env't Servs. (TOC), Inc. , 528 U.S. 167, 189, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (quoting Arizonans for Off. Eng. v. Arizona , 520 U.S. 43, 68 n.22, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997) ), it has also recognized the description "is not comprehensive" and that mootness and standing are different, id. One important difference is that plaintiffs have the burden to show standing, but defendants have the burden to show mootness. Id. And because of the difference between the two, "there are circumstances in which the prospect that a defendant will engage in (or resume) harmful conduct may be too speculative to support standing, but not too speculative to overcome mootness." Id. at 190, 120 S.Ct. 693.

"As long as the parties have a concrete interest, however small, in the outcome of the litigation, the case is not moot." Chafin v. Chafin , 568 U.S. 165, 172, 133 S.Ct. 1017, 185 L.Ed.2d 1 (2013) (quoting Knox v. Serv. Emps. Int'l Union, Loc. 1000 , 567 U.S. 298, 307-08, 132 S.Ct. 2277, 183 L.Ed.2d 281 (2012) ). Here, Fair Vote Florida is still subject to § 106.08 ’s effects because there's a realistic likelihood that, but for § 106.08, it would receive contributions larger than $3,000. See ECF No. 41-2 at 7:13-16; id. at 10:14-16. Likewise, the unrebutted evidence shows that § 106.08 prevents the ACLU from offering greater in-kind contributions to Fair Vote Florida than it otherwise would. See id. at 14:6-13. Further, although Plaintiffs have shifted course from their initial 2022 ballot initiative plans, the unrebutted evidence shows they still intend to seek 2024 ballot placement. See ECF No. 63-1 ¶¶ 3, 10. In fact, Fair Vote Florida has submitted an identical initiative for 2024 ballot placement, id. ¶¶ 3, 13, 17, meaning it is pursuing the same ballot initiative and facing the same statutory restriction it faced at the start. These undisputed facts make it clear that Plaintiffs have at least some interest in the case's outcome. Cf. Chafin , 568 U.S. at 175, 133 S.Ct. 1017 (explaining that a case is not moot just because "the practical impact of any decision is not assured"). Accordingly, Plaintiffs claims are not now moot. I will therefore turn to the merits.


The First Amendment secures "[t]he right to participate in democracy through political contributions." McCutcheon v. Fed. Election Comm'n , 572 U.S. 185, 191, 134 S.Ct. 1434, 188 L.Ed.2d 468 (2014) (plurality). This includes contributions to political committees that support ballot initiatives—contributions that are "beyond question a very significant form of political expression." Citizens Against Rent Control/Coal. for Fair Hous. v. City of Berkeley , 454 U.S. 290, 298, 102 S.Ct. 434, 70 L.Ed.2d 492 (1981).

As I noted at the preliminary injunction stage, two binding precedents are directly applicable here:

Binding decisions from the United States Supreme Court and the Fifth Circuit applied those principles and concluded that the First Amendment forbids limitations like those SB 1890 imposes. These two decisions— Citizens Against Rent Control and Let's Help Florida [v. McCrary , 621 F.2d 195 (5th Cir. 1980), aff'd sub nom.Firestone v. Let's Help Fla. , 454 U.S. 1130 [102 S.Ct. 985, 71 L.Ed.2d 284] (1982)]—strongly support Plaintiffs’ claim.
First, in Let's Help Florida , the Fifth Circuit affirmed this court's decision enjoining enforcement of a nearly identical statute. 621 F.2d at 199, 201. This Fifth Circuit decision is now binding Eleventh Circuit precedent. SeeBonner v. City of Prichard , 661 F.2d 1206, 1207 (11th Cir. 1981). The law at issue there—like SB 1890 here—limited to $3,000 contributions "[t]o any political committee in support of, or in opposition to, an issue to be voted on in a statewide election." Let's Help Fla. , 621 F.2d at 197. The court concluded that this implicated important First Amendment rights and that the State was unable to justify its restriction on expression. Seeid. at 199-200 (noting that the "state's

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