Andrea Bellitto & Am. Civil Rights Union v. Snipes

Decision Date11 July 2017
Docket NumberCase No. 16–cv–61474–BLOOM/Valle
Citation302 F.Supp.3d 1335
Parties Andrea BELLITTO and American Civil Rights Union, Plaintiffs, v. Brenda SNIPES, in her official capacity as the Supervisor of Elections of Broward County, Florida, Defendant, v. 1199SEIU United Healthcare Workers East, Intervenor Defendant.
CourtU.S. District Court — Southern District of Florida

H. Christopher Coates, J. Christian Adams, Public Interest Legal Foundation, Plainfield, IN, Joseph A. Vanderhulst, Kaylan L. Phillips, Public Interest Legal Foundation, Indianapolis, IN, Mathew Daniel Gutierrez, William Earl Davis, Foley & Lardner, LLP, Miami, FL, Kenneth A. Klukowski, American Civil Rights Union, Alexandria, VA, for Plaintiffs.

Burnadette Norris–Weeks, Michelle Austin Pamies, Law Office of Burnadette Norris–Weeks PA, Fort Lauderdale, FL, for Defendant.

Kathleen Marie Phillips, Phillips Richard & Rind, Miami, FL, for Defendant/Intervenor Defendant.

Cameron Bell, McGehee, Cole & Borsodi, P.C., David Slutsky, Levy Ratner PC, Scott Novakowski, Stuart C. Naifeh, Demos, New York, NY, Carrie F. Apfel, Jessica Ring Amunson, Marina K. Jenkins, Tassity S. Johnson, Kali N. Bracey, Jenner & Block LLP, Catherine M. Flanagan, Justice Dept. Environment Division Policy Leg. & Spec. Lit., Michelle Kanter Cohen, Project Vote, Trisha Pande, Service Employees International Union, Washington, DC, Katherine Roberson–Young, SEIU, Lucia Piva, Phillips, Richard, Rind, P.A., Miami, FL, for Intervenor Defendant.

ORDER ON MOTIONS FOR PARTIAL SUMMARY JUDGMENT AND MOTION TO EXCLUDE OPINIONS AND TESTIMONY

BETH BLOOM, UNITED STATES DISTRICT JUDGE

THIS CAUSE is before the Court upon Plaintiff American Civil Rights Union's ("Plaintiff" or "ACRU") Motion for Partial Summary Judgment on Count II of the First Amended Complaint, ECF No. [117] ("ACRU's Motion"), Defendant Brenda Snipes' ("Defendant" or "Snipes") Motion for Summary Judgment as to Count II of Plaintiff's First Amended Complaint, ECF No. [145] ("Snipes' Motion"), and Snipes and Intervenor Defendant 1199SEIU United Healthcare Workers East's ("Intervenor Defendant" or "United") Motion for Summary Judgment on Count I of Plaintiff's Amended Complaint, ECF No. [142] (the "Snipes/United Motion"). United has also filed a Motion to Exclude Opinions and Testimony of Proposed Experts, ECF No. [144] (the " Daubert Motion"). The Court has carefully reviewed the Motions, the record, all supporting and opposing filings, the exhibits attached thereto, and is otherwise fully advised in the premises. For the reasons that follow, ACRU's Motion, Snipes' Motion, and the Snipes/United Motion are denied. United's Daubert Motion is granted in part and denied in part.

I. BACKGROUND

ACRU is a non-profit corporation "which promotes election integrity, compliance with federal election laws, government transparency, and constitutional government." ECF No. [12] at ¶ 4. Snipes is the Supervisor of Elections of Broward County, Florida and has been since November 2003. United is a labor union that focuses on representing healthcare workers and those who work in healthcare facilities.1 Defendant Snipes' and DefendantIntervenor United's Statement of Undisputed Material Facts in Support of their Motion for Summary Judgment, ECF No. [143] ("Snipes/United Count I Supporting SOF") at ¶¶ 2–3.2

A. ACRU's Initial Requests and the Commencement of this Lawsuit

On January 26, 2016, the President of ACRU, Susan A. Carleson ("Carleson"), sent a letter to Snipes notifying her that, based on ACRU's research, Broward County was "in apparent violation" of the National Voter Registration Act of 1993 ("NVRA"), 52 U.S.C. § 20507.3 ECF No. [12–1]. The letter explained that based on ACRU's "comparison of publicly available information published by the U.S. Census Bureau [ ("Census Bureau") ] and the federal Election Assistance Commission [ ("EAC") ]," Broward County at the time "ha[d] an implausible number of registered voters compared to the number of eligible living citizens." Id. at 2. The letter expressed ACRU's hope that the Broward County Supervisor of Elections' Office ("BCSEO") would work toward compliance with Section 8 of the NVRA as well as ACRU's intention to file a lawsuit under the statute if such compliance was not achieved. Id. at 3. The letter also stated that if the information referenced therein was no longer accurate, "it would be helpful if [Snipes] could provide" documents related to the following: updated registration data since the publication of information reported by the EAC for 2014 from the November 2014 election (the "2014 EAC Report"); records obtained or received from federal and state courts, including jury recusal forms, regarding lack of citizenship, death, or relocation; the number of ineligible voters removed by category and by date; the source agency that provided the identifying information of the removed deceased and when the data was provided; the number of notices sent to inactive voters since the publication of the 2014 EAC Report, including the date, scope, and contents of any mailing sent to all registered voters; the names of the staff responsible for conducting list maintenance obligations; the number of ineligible voters removed for criminal conviction, together with the underlying data and communications with law enforcement agencies; the total number of voters registered in Broward County as of the date of any response; any records indicating the use of citizenship or immigration status for list maintenance activities; and all list maintenance records including federal voter registration forms containing citizenship eligibility questionnaires for the previous 22 months. Id. at 3–4. Citing Section 8 of the NVRA, the letter informed Snipes of the requirement that her office "make available for public inspection all records concerning the implementation of programs and activities conducted for the purpose of ensuring the accuracy and currency of official lists of eligible voters." Id. at 4. The letter invited Snipes to call Carleson in order to arrange a time to discuss the matter and to arrange an inspection. Id.

On February 8, 2016, Snipes responded to ACRU's letter with a letter of her own. See ECF No. [12–2] at 1–2. Snipes' letter refuted as "implausible" the assertion that Broward County's voter rolls were filled with more voters than living persons residing in the county, advising ACRU that the State of Florida "has a statewide database" and that Broward County "adheres strictly to the State of Florida guidelines regarding management of the voter rolls."Id. The letter included two forms of certifications spanning the previous several years—"Address List Maintenance Activities" certifications and "Eligibility Records Maintenance" certifications—which it characterized as "documenting actions taken by [Snipes'] office to manage removal of voters no longer eligible to vote in Broward County." Id. at 2; see also id. at 3–23. The letter also stated that Broward County "follows up on information received from credible sources that a person may no longer be eligible to vote." Id. at 2. The letter closed by directing ACRU to BCSEO's General Counsel "[s]hould [ACRU] require further information" and BCSEO's website as "an additional source of information." Id. at 3.

About two months after the exchange of letters, legal representatives of ACRU contacted Snipes via telephone on April 5, 2016, "offer[ing] to set up a meeting to discuss [ACRU's] letter and inspect the requested records." Plaintiff's Statement of Undisputed Material Facts Supporting Motion for Partial Summary Judgment on Count II, ECF No. [118] ("ACRU Count II Supporting SOF") at ¶ 6. According to Snipes, during that phone call she "provided the contact information for [her] General Counsel in order to coordinate inspection and follow-up" and mentioned that there would be a cost for "technology time." Defendant Snipes' Response to Plaintiff's Statement of Material Facts, ECF No. [128] ("Snipes Count II Response SOF") at ¶ 6. ACRU asserts, however, that Snipes "refused to meet to discuss remedies and permit inspection of records[,] ... stat[ing] that she would meet with ACRU's representatives only if election officials from six other Florida counties were also present at the meeting." ACRU Count II Supporting SOF at ¶ 7 (emphasis omitted). Snipes denies that she ever refused to provide documents or allow for an inspection of records, asserting that she "explained that an inspection meeting needed to be coordinated with [General Counsel] given the threat of litigation and the fact that the caller was an attorney." Snipes Count II Response SOF at ¶ 7.

Nearly three months later, on June 27, 20164 —and apparently without any further communications having taking place between ACRU and Snipes—ACRU and Andrea Bellitto ("Bellitto"),5 one of ACRU's members, initiated these proceedings, bringing two claims against Snipes under Section 8 of the NVRA. See ECF No. [1]. Under Count I of its Amended Complaint, ACRU claims that Snipes "has 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) [Help America Vote Act ("HAVA") ]." ECF No. [12] at ¶ 28. Under Count II of the Amended Complaint, ACRU claims that Snipes "has failed to respond adequately to Plaintiffs' written request for data, [and] 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)." Id. at ¶ 33. For relief, ACRU seeks an order from this Court (1) declaring that Snipes is in violation of Section 8 of the NVRA; (2) ordering Snipes to implement reasonable and effective registration list maintenance programs to cure failures to comply with the NVRA and ensure that...

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