Citizens for Police Accountability v. Browning

• Decision Date: 25 June 2009
• Docket Number: No. 08-15115.,08-15115.
• Citation: 572 F.3d 1213
• Parties: CITIZENS FOR POLICE ACCOUNTABILITY POLITICAL COMMITTEE, Florida State Conference of the National Association for the Advancement of Colored People, Plaintiffs-Appellees, v. Kurt S. BROWNING, in his capacity as Secretary of State of the State of Florida, Sharon L. Harrington, in her official capacity as Supervisor of Elections, Lee County, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

572 F.3d 1213

CITIZENS FOR POLICE ACCOUNTABILITY POLITICAL COMMITTEE, Florida State Conference of the National Association for the Advancement of Colored People, Plaintiffs-Appellees, v. Kurt S. BROWNING, in his capacity as Secretary of State of the State of Florida, Sharon L. Harrington, in her official capacity as Supervisor of Elections, Lee County, Defendants-Appellants.

No. 08-15115.

United States Court of Appeals, Eleventh Circuit.

June 25, 2009.

Peter Antonacci, Allen C. Winsor, Andy V. Bardos, Gray Robinson, P.A., Tallahassee,

FL, Thomas Bryan Hart, Knott, Consoer, Ebelini, Hart & Swett, P.A., Fort Myers, FL, for Defendants-Appellants.

Gregg D. Thomas, Paul R. McAdoo, James Joseph McGuire, Thomas & LoCicero & Bralow, PL, Tampa, FL, for Plaintiffs-Appellees.

Appeal from the United States District Court for the Middle District of Florida.

Before DUBINA, Chief Judge, and EDMONDSON and HILL, Circuit Judges.

PER CURIAM:

This appeal is about voting. Florida Statute § 102.031(4) says that no person may solicit voters "within 100 feet of the entrance to any polling place ... or early voting site," and broadly defines "solicit" to include, among other things, "seeking or attempting to seek a signature on any petition[.]" Fla. Stat. §§ 102.031(4)(a)-(b).¹ The Florida statute codifies the Florida legislature's view that the right of Florida's citizens to vote warrants substantial protection from commotion — that is, bustle, stir, confusion — around the voting place. Today, we must decide whether the Florida legislature went too far in defending the right to vote by banning solicitation that targets voters exiting polling places² and that also concerns matters unrelated to any issue then on the ballot. We conclude that the Florida legislature did not go beyond its lawful power and, thus, reverse the district court's decision to bar enforcement of the Florida statute.

Background

Plaintiff Citizens for Police Accountability Political Committee is a political action committee in the State of Florida. Plaintiff Florida State Conference of the NAACP is the parent organization of 60 Florida branches of the national NAACP. Plaintiffs support an amendment to the Fort Myers, Florida, city charter that would create a citizen oversight panel for the city police department. To place the charter amendment on a ballot, though, Plaintiffs must gather signatures from "10 percent of the [city's] registered electors as of the last preceding municipal general election." Fla. Stat. § 166.031(1). Plaintiffs claim that the best way to obtain signatures is to approach voters exiting polling places.

In January 2008, Plaintiff Citizens for Police Accountability Political Committee tried to solicit signatures from voters leaving a polling place in Fort Myers.³ Although the proposed charter amendment related to nothing then on the ballot, election officials, in accordance with the Florida statute, banned the signature-gatherers from soliciting voters within 100 feet of the polling place. Plaintiffs say that many voters were able to park, vote, and leave without interacting with the signature-gatherers.

Then in August 2008, Plaintiffs filed suit and sought injunctive relief under 42 U.S.C. § 1983 against Kurt S. Browning, in his capacity as Secretary of State of the State of Florida, and Sharon L. Harrington in her capacity as Supervisor of Elections in Lee County, Florida (collectively, the State). Plaintiffs claimed that the Florida statute violated their First Amendment right to engage in political speech at polling places. Plaintiffs asked the district court to declare the Florida statute unconstitutional on its face and as it applied to their exit-solicitation efforts. Plaintiffs also sought to enjoin the State from enforcing the Florida statute against them when they solicited voters leaving polling places on election day later in August. As with the January election, the proposed charter amendment related to nothing on the ballot in the August election.

The district court held oral argument just before the August election. The next day, the district court entered a preliminary injunction enjoining the State from enforcing the Florida statute against Plaintiffs at polling places on election day.⁴ The district court concluded that the Florida statute was probably unconstitutional as it applied to Plaintiffs' exit-solicitation efforts because the State had produced little evidence that the exit-solicitation ban was necessary to serve a compelling interest or that it was sufficiently drawn to achieve that end. The State appeals.⁵

Standard of Review

We review a preliminary injunction for an abuse of discretion. Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1096 (11th Cir.2004). A district court abuses its discretion if it applies an incorrect legal standard, applies the law in an unreasonable or incorrect manner, follows improper procedures in making a determination or makes findings of fact that are clearly erroneous. Id. We review de novo questions of law. United States v. Endotec, Inc., 563 F.3d 1187, 1194 (11th Cir. 2009).

Discussion

A preliminary injunction is an "extraordinary and drastic remedy." McDonald's Corp. v. Robertson, 147 F.3d 1301, 1306 (11th Cir.1998) (quoting All Care Nursing Serv., Inc. v. Bethesda Mem'l Hosp., Inc., 887 F.2d 1535, 1537 (11th Cir.1989)). To secure an injunction, a party must prove four elements: (1) a substantial likelihood of success on the merits; (2) irreparable injury absent an injunction; (3) the injury outweighs whatever damage an injunction may cause the opposing party; and (4) an injunction is not adverse to the public interest. Id.

The State challenges on appeal only the district court's conclusion that Plaintiffs established a substantial likelihood of success on the merits of their claim that the Florida statute is unconstitutional as it applies to exit-solicitation efforts. The State admits that the Florida statute infringes some on Plaintiffs' right to engage in political speech⁶ (see Meyer v. Grant, 486 U.S. 414, 108 S.Ct. 1886, 1892, 100 L.Ed.2d 425 (1988)) but contends that the restriction is necessary and narrowly tailored to protect the, at least, equally critical right to vote free from intimidation, interference, and fraud.

In Burson v. Freeman, 504 U.S. 191, 112 S.Ct. 1846, 119 L.Ed.2d 5 (1992), the Supreme Court addressed the facial constitutionality of a Tennessee statute that proscribed campaign activity within 100 feet of a polling place.⁷ Id. at 1848. Considering the Tennessee statute as a content-based restriction on political speech in a public forum, the statute could survive only if it was "necessary to serve a compelling state interest" and was "narrowly drawn to achieve that end." Id. at 1851 (quoting Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 103 S.Ct. 948, 955, 74 L.Ed.2d 794 (1983)).

The Supreme Court upheld the Tennessee statute.⁸ In doing so, a plurality of the Supreme Court⁹ first reviewed whether Tennessee had a compelling interest to support its statute. Tennessee offered two: (1) protecting voters from confusion and undue influence; and (2) preserving the integrity of the election process. Id. at 1851-52. The plurality agreed that those interests were sufficiently compelling to warrant protection. Id.

The plurality then turned to whether the Tennessee statute was necessary to serve those compelling interests. In typical cases involving strict-scrutiny review, the Supreme Court would look to the state to offer evidence that the pertinent statute is necessary to promote the compelling interest. See Eu v. San Francisco County Democratic Cent. Comm., 489 U.S. 214, 109 S.Ct. 1013, 1021-23, 103 L.Ed.2d 271 (1989). But in Burson, the plurality required Tennessee to produce no evidence of necessity. Burson, 112 S.Ct. at 1856. Instead, the plurality relied on the long history of regulation to combat election misconduct, the substantial consensus in favor of a secret ballot secured by a campaign-free zone that emerged from that history, and common sense to conclude "that some restricted zone around the voting area" was necessary to secure Tennessee's compelling interests. Id. (emphasis in original).

The plurality last examined whether the Tennessee statute was narrowly tailored. To pass this test, a state normally must show that the pertinent statute used the least restrictive means available to serve the compelling interest. See Boos v. Barry, 485 U.S. 312, 108 S.Ct. 1157, 1168, 99 L.Ed.2d 333 (1988). The plurality recognized, however, that it faced a unique situation because of the importance of protecting the right to vote and the difficulties in and dangers of requiring Tennessee to demonstrate the effects of its statute on political stability.¹⁰ Burson, 112 S.Ct. at 1856-57. So the plurality departed from the customary analysis and applied a modified "burden of proof" under which the Tennessee statute was sufficiently tailored if it was "reasonable" and did not "significantly impinge on constitutionally protected rights." Id. at 1857 (emphasis in original). The plurality concluded that the minor geographic limitation in the Tennessee statute — 100 feet — satisfied this more lenient standard. Id. The statute was constitutional.

The parties dispute the extent to which Burson affects this case. The State says that the Florida statute is no different than the Tennessee statute in Burson and, thus, the Florida statute should survive for the same reasons. Plaintiffs, on the other hand, claim that the facts in Burson are materially different because there a campaign worker wanted to solicit votes on election day, while here Plaintiffs aim only to seek the supporting signatures of voters — who had already voted — about a non-ballot issue.

We accept that Burson does not bind us here; the material facts are different in some ways. Nevertheless, we believe that the Burson plurality opinion is highly persuasive and we extend...