Democratic Exec. Comm. of Fla. v. Lee

Decision Date15 February 2019
Docket NumberNo. 18-14758,18-14758
Citation915 F.3d 1312
Parties DEMOCRATIC EXECUTIVE COMMITTEE OF FLORIDA, Bill Nelson for US Senate, Plaintiffs-Appellees, v. Laurel M. LEE, In Her Official Capacity as Florida Secretary of State, Attorney General of the State of Florida, Defendants-Appellants, National Republican Senatorial Committee, Intervenor Defendant-Appellant.
CourtU.S. Court of Appeals — Eleventh Circuit

Jennifer S. Blohm, Ronald G. Meyer, Meyer Brooks Demma & Blohm, PA, Tallahassee, FL, Marc Erik Elias, Elisabeth Frost, Uzoma Nkwonta, Perkins Coie, LLP, Washington, DC, Sarah Langberg Schirack, Perkins Coie, LLP, Anchorage, AK, for Plaintiffs-Appellees.

Thomas Henderson Dupree, Jr., Helgi C. Walker, Gibson Dunn & Crutcher, LLP, Washington, DC, Andre V. Bardos, George T. Levesque, GrayRobinson, PA, Tallahassee, FL, Jason Brett Torchinsky, Holtzman Vogel Josefiak, PLLC, Warrenton, VA, for Defendant-Appellant NATIONAL REPUBLICAN SENATORIAL COMMITTEE.

Amit Agarwal, Pam Bondi, Office of the Attorney General, Tallahassee, FL, Stephanie Allison Daniel, Jordan E. Pratt, Edward Mark Wenger, Blaine H. Winship, Attorney General's Office, Tallahassee, FL, for Defendant-Appellant ATTORNEY GENERAL, STATE OF FLORIDA.

Gary V. Perko, Attorney, Mohammad O. Jazil, Hopping Green & Sams, PA, Tallahassee, FL, for Defendant-Appellant SECRETARY OF STATE.

Elizabeth Baker Murrill, Attorney General's Office, Department of Justice, Baton Rouge, LA, for Amici Curiae STATE OF LOUISIANA, STATE OF TEXAS, STATE OF ALABAMA, STATE OF GEORGIA.

Before TJOFLAT, MARTIN, and ROSENBAUM, Circuit Judges.

ROSENBAUM, Circuit Judge:

Voting is the beating heart of democracy. It is a "fundamental political right, because [it is] preservative of all rights." Yick Wo v. Hopkins , 118 U.S. 356, 370, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). "It is beyond cavil that ‘voting is of the most fundamental significance under our constitutional structure.’ " Burdick v. Takushi , 504 U.S. 428, 433, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992) (quoting Ill. Bd. of Elections v. Socialist Workers Party , 440 U.S. 173, 184, 99 S.Ct. 983, 59 L.Ed.2d 230 (1979) ).

League of Women Voters of Fla., Inc. v. Detzner , 314 F.Supp.3d 1205, 1215 (N.D. Fla. 2018). We can’t say it any better than that. But, of course, voting alone is not enough to keep democracy’s heart beating. Legitimately cast votes must then be counted.

This case requires us to consider Florida’s practice of counting vote-by-mail ballots only after verifying that the voter’s signature provided with the ballot matches the voter’s signature in the state’s records. Although this practice is designed to prevent fraud, signature mismatches occur for a variety of reasons—including purely innocent ones. And Florida’s lack of any standards or formal training requirements for those who assess the signatures as mismatched can also contribute to false positives for signature mismatches. So the fact that a Florida election official may decide a voter’s signature provided with her ballot does not match her signature in the state’s records does not necessarily mean her vote is fraudulent and should not be counted.

But Florida’s election code allows for just that. Because of the way Florida has scheduled its election process, some voters who submit a vote-by-mail ballot by the stated deadline are not notified about a signature mismatch until after it is too late to demonstrate their eligibility to vote. As a result, their votes do not count, and they are disenfranchised.

Upon Plaintiffs-Appellees the Democratic Executive Committee of Florida ("DECF") and Bill Nelson for U.S. Senate’s (the "Nelson Campaign") motion, the district court here entered an order providing these voters with a 48-hour period to cure their signature mismatch, so their votes could be counted. Defendants-Appellants the National Republican Senatorial Committee ("NRSC"), the Florida Secretary of State2 ("Secretary"), and the Florida Attorney General ("Attorney General") appealed the district court’s order, and the NRSC sought an emergency stay of the order.

In this opinion, we address only the NRSC’s motion for emergency stay. Because the NRSC has not satisfied the requirements for the issuance of a stay in this case, we deny its motion.3

I. Background4

Florida allows eligible voters to cast their votes by mailing in their ballots rather than voting in person on Election Day. See Fla. Stat. § 101.62 (2016). This option can be especially useful to those temporarily residing away from home, such as college students, and those with physical impairments that make it difficult to get around.

To protect against fraud, Florida requires those who choose to vote by mail to sign the voter’s certificate on the back of the envelope on which they mail their ballots. Fla. Stat. § 101.65 (2016). Voting officials later compare the signature on the certificate with the signature on file for that voter. Fla. Stat. § 101.68 (2017). If the reviewing official believes the signatures do not match, the ballot is rejected. Id.

For a period, Florida did not afford voters whose ballots were rejected due to signature mismatch the opportunity to cure their votes by proving their identities. See Fla. Democratic Party v. Detzner , No. 4:16CV607-MW/CAS, 2016 WL 6090943, at *2 (N.D. Fla. Oct. 16, 2016). But the signature-match scheme calls on officials who are not required to receive formal training to judge the similarities of signatures, and everyday factors "such as body position, writing surface, and noise" all affect one’s signature. Id. at *2, 7. So the signature-match scheme can result in the rejection of an eligible voter’s ballot, through no fault of the voter. Id. at *8.

The shortcomings of the signature-match scheme made it nearly certain to incorrectly reject the ballots of some legitimate voters. As a result, a district court in Florida (the same one that ruled in the case now under review) held that the scheme would unconstitutionally disenfranchise legitimate voters and ordered the state to provide a way for those voters who had their ballots rejected for signature mismatch to prove their identities and have their votes count. Id. at *9.

In response to the district court’s decision, the Florida legislature amended the election code to allow voters to cure improperly rejected ballots. After that amendment, a voter, upon learning that her vote had been rejected for signature-mismatch, had until 5 p.m. one day before the election to verify her identity by submitting a cure affidavit and an accepted form of identification. Fla. Stat. § 101.68(4). Working in tandem, the cure provision and the original signature-match requirement were supposed to guard against both vote-by-mail fraud and arbitrary disenfranchisement of legitimate voters.

Florida also allows prospective voters who cannot prove their eligibility to vote to cast provisional ballots. Fla. Stat. § 101.048(1) (2008). Like vote-by-mail ballots, provisional ones are also protected by the signature-match requirement: if the signature on the provisional ballot voter’s certificate and affirmation does not match the signature on the voter’s registration, the ballot will not count. Id. § 101.048(2)(b) 1. But unlike for vote-by-mail ballots, Florida does not provide a way for provisional voters whose ballots were rejected for signature mismatch to cure their ballots.5 Democratic Exec. Comm. of Fla. v. Detzner , 347 F.Supp.3d 1017, 1024 (N.D. Fla. 2018).

Plaintiffs DECF and the Nelson Campaign challenged the constitutionality of the signature-match scheme as it relates to vote-by-mail and provisional voters. They asserted that the scheme continues to disenfranchise eligible voters on an arbitrary basis, in violation of the First and Fourteenth Amendments. As relevant here, Plaintiffs asked the district court for an emergency injunction requiring officials to stop rejecting ballots based on signature mismatch and to count every vote-by-mail and provisional vote that had been rejected for that reason.

The district court agreed that the signature-match protection provided by Florida’s amended election laws still blocked too many eligible voters. But rather than granting plaintiffs’ request to count every vote-by-mail and provisional ballot that had been rejected for signature mismatch, the district court issued a much narrower preliminary injunction: under it, only the ballots of those voters who were belatedly notified of signature mismatch could be counted, and they would be counted only after those voters timely verified their identities by following the normal cure procedures. See Democratic Exec. Comm. , 347 F.Supp.3d at 1032.

Defendants the NRSC, the Secretary, and the Attorney General appealed. The NRSC also sought an emergency stay of the district court’s preliminary injunction.

II. Legal Standard

A stay of a preliminary injunction requires the exercise of our judicial discretion, and the party requesting the stay must demonstrate that the circumstances justify the exercise of that discretion. In considering a motion for stay, we account for the following factors, which substantially overlap with the factors governing preliminary injunctions: (1) whether the stay applicant has made a strong showing that it is likely to succeed on the merits, (2) whether the applicant will be irreparably injured absent a stay, (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding, and (4) where the public interest lies. Nken v. Holder , 556 U.S. 418, 434, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009).6 The first two factors are the most critical. Id. at 434-35, 129 S.Ct. 1749. To satisfy its burden as to those factors, the party seeking the stay must show more than the mere possibility of success on the merits or of irreparable injury. Id .

In considering whether to stay a preliminary injunction, we apply the usual standards of review governing our review of the merits of the preliminary injunction. See U.S. Student Ass’n Found. v....

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