Arcia v. Fla. Sec'y of State

• Citation: 772 F.3d 1335
• Decision Date: 17 November 2014
• Docket Number: No. 12–15738.,12–15738.
• Parties: Karla Vanessa ARCIA, Melande Antoine, et al., Plaintiffs–Appellants, v. FLORIDA SECRETARY OF STATE, Defendant–Appellee, Luis I. Garcia, et al., Intervenor Defendants.
• Court: U.S. Court of Appeals — Eleventh Circuit

772 F.3d 1335

Karla Vanessa ARCIA, Melande Antoine, et al., Plaintiffs–Appellants,

v. FLORIDA SECRETARY OF STATE, Defendant–Appellee,Luis I. Garcia, et al., Intervenor Defendants.

No. 12–15738.

United States Court of Appeals, Eleventh Circuit.

Nov. 17, 2014.

Marc A. Goldman, Marina K. Jenkins, Lindsay Eyler Kaplan, Lorelie S. Masters, Kristen M. Rogers, Jenner & Block, LLP, Michelle Kanter Cohen, Catherine M. Flanagan, Project Vote, Katherine Culliton–Gonzalez, Penda Hair, Uzoma Nkwonta, Advancement Project, Ben Hovland, Fair Elections Legal Network, Washington, DC, Juan Cartagena, Jose Perez, LatinoJustice PRLDEF, New York, NY, John Louis De Leon, Chavez & De Leon, PA, Katherine Roberson–Young, Miami, FL, for Plaintiffs–Appellants.

J. Andrew Atkinson, Ashley E. Davis, Florida Department of State, Tallahassee, FL, Michael Anthony Carvin, John M. Gore, Jones Day, Washington, DC, for Defendant–Appellee.

Appeal from the United States District Court for the Southern District of Florida. D.C. Docket No. 1:12–cv–22282–WJZ.

Before MARTIN, JORDAN and SUHRHEINRICH,^* Circuit Judges.

MARTIN, Circuit Judge:

The panel vacates the opinion issued in this case on April 1, 2014. We reissue this opinion without the concurring opinion of Judge Jordan, and otherwise the opinion remains the same.

Section 8(c)(2)(A) of the National Voter Registration Act (the 90 Day Provision) requires states to “complete, not later than 90 days prior to the date of a primary or general election for Federal office, any program the purpose of which is to systematicallyremove the names of ineligible voters from the official lists of eligible voters.” 42 U.S.C. § 1973gg–6(c)(2)(A). This provision became the center of a legal dispute in 2012, when a group of individual voters and organizations sued Florida Secretary of State Kenneth W. Detzner. These plaintiffs argued that Florida was violating the 90 Day Provision by conducting a program to systematically remove suspected non-citizens from the voter rolls within 90 days of a federal election. The District Court denied the plaintiffs' motions for a preliminary injunction and summary judgment, and entered judgment in favor of Secretary Detzner. The plaintiffs now appeal.

Because we conclude that Florida's program was an attempt to systematically remove names from the voter rolls in violation of the 90 Day Provision, we reverse and remand.

I. FACTS AND PROCEDURAL HISTORY

This case concerns Florida's efforts to remove the names of ineligible voters from the State's voter rolls prior to the 2012 primary and general elections. Concerned about people who are not citizens casting ballots in Florida elections, Secretary of State Detzner engaged in two separate programs to identify and remove non-citizens from the Florida voter rolls.

Secretary Detzner's first program began in advance of the primary election and used records from the Department of Highway Safety and Motor Vehicles (DHSMV). The Secretary started by compiling a list of registered voters who had previously presented the DHSMV with identification—such as green cards or foreign passports—suggesting that they may be non-citizens. After putting together this list, he sent a portion of it to the State Supervisor of Elections in each county, instructing them to (1) review the names on the list, (2) conduct additional research using “whatever other sources you have,” and (3) initiate a notice and removal process. Secretary Detzner suspended the program at the end of April 2012. Records indicate, however, that suspected non-citizens continued to be removed from the voter rolls during May and June, which was less than 90 days before the Florida primary election.

This first effort by Secretary Detzner to identify non-citizens was far from perfect. For example, Plaintiffs Karla V. Arcia and Melande Antoine were identified as non-citizen voters to be removed from the voter rolls. This, despite the fact that they were both United States citizens eligible to vote in the 2012 elections. Also, organizations like the Florida Immigration Coalition, Inc., the National Congress for Puerto Rican Rights, and 1199SEIU United Healthcare Workers East (1199SEIU) diverted resources from their regularly-conducted programs and activities to counteract the effects of the Secretary's program. These efforts included locating and assisting members who had been wrongly identified as non-citizens to ensure that they were able to vote.

Despite these shortcomings in his initial program, Secretary Detzner renewed his efforts to remove non-citizens from the voter rolls in advance of the 2012 general election. Rather than use the DHSMV records, this second program relied on the Department of Homeland Security's Systematic Alien Verification for Entitlements (SAVE) database. Secretary Detzner also announced that he would not wait until after the general election to implement his program. Even though there were less than 90 days before the general election, Secretary Detzner stated publicly that he planned to forward the names of registeredvoters identified as non-citizens in the SAVE database to State Supervisors.

This case began on June 19, 2012, when the plaintiffs first challenged Secretary Detzner's efforts to remove non-citizens prior to the Florida primary election. Among other things, the plaintiffs alleged that they were entitled to declaratory and injunctive relief because the Secretary's actions were barred by the 90 Day Provision. After Secretary Detzner announced that he would resume the removal of purported non-citizens from the voter rolls using the SAVE database, the plaintiffs amended their complaint, arguing that the Secretary's program still violated the NVRA's 90 Day Provision because of the proximity to the general election. The plaintiffs sought a preliminary injunction and summary judgment.

The District Court found that the 90 Day Provision did not apply to the Secretary's efforts to remove non-citizens from the voter rolls and denied the plaintiffs' motions for an injunction and summary judgment. At the plaintiffs' request, the District Court also entered judgment as a matter of law in favor of Secretary Detzner. Plaintiffs now appeal this final judgment.¹

II. JURISDICTIONAL ISSUES

Before reaching the merits, we must first determine whether we have Article III jurisdiction over the parties and issues presented here. In particular, we must decide (1) whether the plaintiffs have standing and (2) whether this case is moot because the 2012 elections have passed.

A. STANDING

Secretary Detzner claims that neither the individual nor the organizational plaintiffs have standing because they did not suffer an “injury-in-fact.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992). “We review issues of standing de novo.” Hollywood Mobile Estates Ltd. v. Seminole Tribe of Fla., 641 F.3d 1259, 1264 (11th Cir.2011). Standing is determined at the time the plaintiff's complaint is filed. Focus on the Family v. Pinellas Suncoast Transit Auth., 344 F.3d 1263, 1275 (11th Cir.2003).

“ ‘Injury in fact’ reflects the statutory requirement that a person be ‘adversely affected’ or ‘aggrieved,’ and it serves to distinguish a person with a direct stake in the outcome of a litigation—even though small—from a person with a mere interest in the problem.” United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 689 n. 14, 93 S.Ct. 2405, 2417 n. 14, 37 L.Ed.2d 254 (1973) (noting that “an identifiable trifle is enough”). An injury-in-fact involves “an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” See Lujan, 504 U.S. at 560, 112 S.Ct. at 2136 (quotation marks and internal citations omitted).

1. Individual Plaintiffs

The individual plaintiffs, Ms. Arcia and Ms. Antoine, have standing because (1) they were directly injured by Secretary Detzner's first program before the 2012 primary election and (2) at the time they filed their complaint, they had established a probable future injury allowing them to prospectively challenge Secretary Detzner's second program before the 2012 general election.

Ms. Arcia and Ms. Antoine had standing to challenge Secretary Detzner's first program before the 2012 primary election because they were directly injured by it when they were wrongly identified as non-citizens. Even though they were ultimately not prevented from voting, an injury like theirs is sufficient to confer standing. See Common Cause/Ga. v. Billups, 554 F.3d 1340, 1351–52 (11th Cir.2009) (finding that requirement to produce photo identification to vote was an injury sufficient to confer standing even though the right to vote was not “wholly denied”); Charles H. Wesley Educ. Found., Inc. v. Cox, 408 F.3d 1349, 1352 (11th Cir.2005) (finding sufficient the injury of being unable to vote in home precinct because state government rejected voter's use of the federal registration form to change her address).

Ms. Arcia and Ms. Antoine also have standing to prospectively challenge the Secretary's second attempt to remove non-citizens from the voter rolls using the SAVE database. When the harm alleged is prospective, as it was here, a plaintiff can satisfy the injury-in-fact requirement by showing imminent harm. Fla. State Conf. of the NAACP v. Browning, 522 F.3d 1153, 1160–61 (11th Cir.2008). While the threatened future injury cannot be merely hypothetical or conjectural, probabilistic harm is enough. Id. at 1162–63. Because Ms. Arcia and Ms. Antoine were naturalized U.S. citizens from Nicaragua and Haiti respectively, there was a realistic probability that they would be misidentified due to unintentional mistakes in the Secretary's data-matching process. See id. at 1163–64 (distinguishing foreseeable injuries from those based on assumptions and conjecture). This being the case, Ms. Arcia and Ms. Antoine sufficiently established...