Democratic Exec. Comm. of Fla. v. Detzner

• Decision Date: 15 November 2018
• Docket Number: Case No. 4:18-CV-520-MW/MJF
• Citation: 347 F.Supp.3d 1017
• Parties: DEMOCRATIC EXECUTIVE COMMITTEE OF FLORIDA, and Bill Nelson for U.S. Senate, Plaintiffs, v. Ken DETZNER, in His Official Capacity as Florida Secretary of State, Defendant.
• Court: U.S. District Court — Northern District of Florida

347 F.Supp.3d 1017

DEMOCRATIC EXECUTIVE COMMITTEE OF FLORIDA, and Bill Nelson for U.S. Senate, Plaintiffs,

v.Ken DETZNER, in His Official Capacity as Florida Secretary of State, Defendant.

Case No. 4:18-CV-520-MW/MJF

United States District Court, N.D. Florida, Tallahassee Division.

Signed November 15, 2018

Marc E. Elias, Perkins Coie LLP, Washington, DC, Ronald G. Meyer, Jennifer Suzanne Blohm, Tallahassee, FL, for Plaintiffs.

Blaine H. Winship, Edward M Wenger, Jordan E Pratt, Office of the Attorney General, Stephanie Allison Daniel, Florida Attorney General Office Law Library, Tallahassee, Fl, for Defendant.

ORDER GRANTING PRELIMINARY INJUNCTION¹

Mark E. Walker, Chief United States District JudgeConsider the game of football. Football fans may quibble about the substance of the rules, but no one quibbles that rules are necessary to play the game. See generally Nat'l Football League, 2018 Official Playing Rules of the National Football League (2018). And no one quibbles that football referees make certain calls, under the rules, that deserve review. Indeed, not every call is going to be clear—the ultimate decision may hinge on highly subjective factors. Hence, a call will be overturned only when there is "clear and obvious visual evidence available that warrants the change." Id. at 63.

Among other things, the 2018 NFL Rules allow video review for plays involving possession, boundary lines, the line of scrimmage, and the goal line. See id. The NFL likewise provides review for disqualification of players. Id. Coaches may challenge calls themselves by throwing a red flag, or, in certain circumstances, the referees may initiate review on their own. Id. at 62.

All that process. Just for a game.

In this case, the Plaintiffs have thrown a red flag. But this is not football. Rather, this is a case about the precious and fundamental right to vote—the right preservative of all other rights. And it is about the right of a voter to have his or her vote counted. There is no doubt there must be election laws. There is no doubt that to run an election, the state must impose deadlines and rules to govern an efficient and transparent election process. There is no doubt that election officials must make certain calls, under the rules, that deserve review. And there is no doubt some of those calls may hinge on highly subjective factors.

The precise issue in this case is whether Florida's law that allows county election officials to reject vote-by-mail and provisional ballots for mismatched signatures—with no standards, an illusory process to cure, and no process to challenge the rejection—passes constitutional muster. The answer is simple. It does not.

I

This is a case about vote-by-mail and provisional ballots. Florida allows registered eligible voters, without an excuse, to cast their ballots by mail, as opposed to casting their votes at their assigned precinct on Election Day. Fla. Stat. § 101.62 (2016). Voting by mail has become a popular option for Florida voters. In the 2016 General Election, more than 2.7 million Florida voters either voted or attempted to vote by mail. Fla. Dep't. of State, Voting Activity by Ballot Type for 2016 General Election , Florida Department of State, Division of Elections (last visited Nov. 13, 2018), https://dos.myflorida.com/media/697842/2016-ge-summaries-ballots-by-type-activity.pdf. Provisional ballots may be cast when there is uncertainty over whether a voter is eligible to vote. In the 2016 General Election, 24,460 Florida voters cast or attempted to cast a provisional ballot. Id. Both vote-by-mail and provisional ballots are at risk of being rejected, and thus not cast, based on the mismatch of a signature.

Voters who choose to vote by mail must follow certain instructions provided by Florida law. For example, vote-by-mail voters must send their marked ballot back in a specially marked secrecy envelope. Id. § 101.65 (2016). Those voters also must insert the secrecy envelope into another mailing envelope addressed to the supervisor, seal that mailing envelope, and fill out the "Voter's Certificate" on the back of the mailing envelope. Id.

For a vote-by-mail ballot to be counted, the envelope of that ballot must include the voter's signature. Id. Once the vote-by-mail ballots are received, county canvassing boards review those ballots to verify the signature requirement has been met. Id. § 101.68(c). In addition to confirming the envelope is signed, the county canvassing boards confirm the signature on the envelope matches the signature on file for a voter. These county canvassing boards are staffed by laypersons that are not required to undergo formal handwriting-analysis education or training.² Moreover, Florida has no formalized statewide procedure for canvassing boards to evaluate whether the signature on a vote-by-mail ballot matches the signature on file with the elections office. If the canvassing board believes the signature on the vote-by-mail ballot does not correspond to the signature on file with the supervisor of elections office, the ballot is deemed "illegal" and is therefore rejected. Fla. Stat. § 101.68(5). Under an earlier version of Florida law, vote-by-mail voters had no opportunity to cure a mismatched signature on a vote-by-mail ballot.

In a previous case, this Court found the Florida statutory scheme that provided an opportunity to cure no-signature ballots, but denied that opportunity to mismatched-signature ballots, was unconstitutional. Fla. Democratic Party v. Detzner , No. 4:16-cv-607-MW/CAS, 2016 WL 6090943, at *1 (N.D. Fla. Oct. 16, 2016). Thus, this Court entered a preliminary injunction requiring the Florida Secretary of State to issue a directive to the supervisors of elections advising them that Florida's statutory scheme as it related to mismatched-signature ballots was unconstitutional. Id. at *9. And in light of that finding, they were required to allow mis-matched-signature ballots to be cured in the same way provided for non-signature ballots. Id.

In response to that injunction, Florida law was amended. Now, if the canvassing board determines a vote-by-mail ballot contains a signature that does not match the voter's signature in the registration books or precinct register, the supervisor "shall ... immediately notify" the voter. Fla. Stat. § 101.68(4)(a) (2017). After notification, the voter may complete and submit an affidavit to cure the vote-by-mail ballot until 5 p.m. on the day before the election. Id. But notably, a vote-by-mail ballot may be received "not later than 7 p.m. on the day of the election." Id. § 101.6103(5)(c).

The opportunity to cure is the last chance a vote-by-mail voter has to save their vote from being rejected and not counted. Florida law provides no opportunity for voters to challenge the determination of the canvassing board that their signatures do not match, and their votes do not count. Interestingly, Florida law does provide an opportunity for any voter or candidate to challenge a signature that was accepted and thus a vote that was counted. Id. § 101.68(4). If any candidate or voter believes a vote-by-mail should not have been counted because of a defect on the voter's certificate or cure affidavit "he or she may, at any time before the ballot is removed from the envelope, file with the canvassing board a protest against the canvass of the ballot, specifying the precinct, the ballot, and the reason he or she believes the ballot to be illegal." Id. Even more striking is the fact that under Florida law, canvassing boards may begin canvassing of vote-by-mail ballots at 7 a.m. on the 15th day before the election, but no later than noon on the day following the election. Fla. Stat. § 101.68(2)(a). Thus, a vote-by-mail voter could mail their ballot in weeks early, but the canvassing board could also wait, canvass the ballot the day after the election, determine there is a mismatched signature, and toss the vote. The voter therefore gets no chance to cure, since curing must be done by 5 p.m. the day before the election.

Provisional ballots are also at issue in this case. In all elections, a voter claiming to be properly registered in the state and eligible to vote at the precinct in the election, but whose eligibility cannot be determined, or whom an election official asserts is not eligible, is entitled to cast a provisional ballot. Id. § 101.048(1). Provisional ballots are placed in a secrecy envelope and sealed. The person casting a provisional ballot has until 5 p.m. on the second day following an election to present written evidence supporting his or her eligibility to vote. Id. County canvassing boards examine the provisional ballot voter's certificate and affirmation, written evidence provided by the provisional voter, any other evidence presented by the supervisor of elections, and, in the case of a change, any evidence presented by the challenger to determine if the person was eligible to vote. Id. § 101.048(2)(a). A provisional ballot shall be cast unless the canvassing board finds by a preponderance of the evidence the person was not entitled to vote. Id. After making the initial eligibility determination, the county canvassing board must further compare the signature on the provisional ballot voter's certificate with the signature on the voter's registration. Id. § 101.048(2)(b)1. If the signatures match, the vote is counted. Id. There is no mechanism for a voter to challenge the canvassing board's determination that the voter was or was not eligible to vote. Nor is there a cure period for provisional ballots rejected based on signature mismatch.

Plaintiffs brought this case arguing Florida's use of signature matching for vote-by-mail and provisional ballots unconstitutionally burdens the rights of Florida's voters and deprives them of equal protection of the law. Specifically, Plaintiffs seek an injunction that requires Defendants and anyone under their supervision to count any vote-by-mail or provisional ballots rejected...