Fla. Democratic Party v. Scott, Case No. 4:16cv626-MW/CAS

• Decision Date: 10 October 2016
• Docket Number: Case No. 4:16cv626-MW/CAS
• Parties: FLORIDA DEMOCRATIC PARTY, Plaintiff, v. Richard SCOTT, in his Official Capacity as Governor of the State of Florida, and Ken Detzner, in his Official Capacity as Secretary of State of the State of Florida, Defendant.
• Court: U.S. District Court — Northern District of Florida

215 F.Supp.3d 1250

FLORIDA DEMOCRATIC PARTY, Plaintiff,

v.Richard SCOTT, in his Official Capacity as Governor of the State of Florida, and Ken Detzner, in his Official Capacity as Secretary of State of the State of Florida, Defendant.

Case No. 4:16cv626-MW/CAS

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

Signed October 10, 2016

Kevin J. Hamilton, Marc E. Elias, Perkins Coie LLP, Washington, DC, Mark Herron, Robert John Telfer, III, Messer Caparello & Self Pa, Tallahassee, FL, for Plaintiff.

William Nicholson Spicola, Executive Office of the Governor, Tallahassee, FL, Adam Scott Tanenbaum, Florida Department of State, Tallahassee, FL, Robert Wayne Pass, Steven C. Dupre, Carlton Fields Jorden Etc PA, Tampa, FL, for Defendant.

ORDER GRANTING TEMPORARY RESTRAINING ORDER

Mark E. Walker United States District Judge

"No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined." Wesberry v. Sanders , 376 U.S. 1, 17, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964). That right is no less sacrosanct for aspiring eligible voters than it is for current eligible voters.

This case involves the upcoming election. Florida's voter registration deadline for the 2016 election cycle is currently set for Tuesday, October 11, 2016. For aspiring eligible voters, failing to register by that date effectively forecloses the right to vote in the 2016 election. Just five days before that deadline, however, Hurricane Matthew bore down and unleashed its wrath on the State of Florida. Life-threatening winds and rain forced many Floridians to evacuate or, at a minimum, hunker down in shelters or their homes. Like Hurricane Matthew, the voter registration deadline also approached and bore down on the State of Florida. Citing the impending Hurricane, many urged the Governor of Florida, Defendant Rick Scott, to extend the deadline. But Defendant Scott demurred, asserting instead that Floridian's had other avenues to ensure that their right to vote was protected.

Plaintiff brought this case, arguing that Defendants refusal to extend the registration deadline will unconstitutionally burden the rights of Florida voters. Specifically, Plaintiff seeks an injunction (and, in the interim, a temporary restraining order, ECF No. 4), enjoining Defendants from enforcing the October 11 voter registration deadline. ECF No. 3, at 21.

I

Before this Court reaches the merits, a few housekeeping matters must be addressed.

The first is standing, "as it is a threshold matter required for a claim to be considered by the federal courts." Via Mat Int'l S. Am. Ltd. v. United States , 446 F.3d 1258, 1262 (11th Cir. 2006). Associations or organizations, in certain scenarios, have standing to assert claims based on injuries to itself or its members if that organization or its members are affected in a tangible way. See United Food and Commercial Workers Union Local 751 v. Brown Grp., Inc. , 517 U.S. 544, 116 S.Ct. 1529, 134 L.Ed.2d 758 (1996). More specifically, organizations can "enforce the rights of its members ‘when its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization's purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.’ " Arcia v. Fl. Sec'y of State , 772 F.3d 1335, 1342 (11th Cir. 2014) (quoting Friends of the Earth, Inc. v. Laidlaw Envt'l Servs. (TOC), Inc. , 528 U.S. 167, 181, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) ).

As one of my colleagues held in another election case, political parties have standing to assert, at least, the rights of its members who will vote in an upcoming election. Fla. Democratic Party v. Hood , 342 F.Supp.2d 1073, 1078–79 (N.D. Fla. 2004) (Hinkle, J.). That was so even though the political party could not identify specific voters that would be affected; it is sufficient that some inevitably would. Here too, Plaintiff need not identify specific aspiring eligible voters who intend to register as Democrats and who will be barred from voting; it is sufficient that some inevitably will. Plaintiff thus has standing.

Second, this Court must address whether Defendant Scott and Defendant Detzner are the proper parties to be sued in this case. It is well-established that while a state may not be sued unless it waives its sovereign immunity or that immunity is abrogated by Congress, Kimel v. Fla. Bd. of Regents , 528 U.S. 62, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000), that a suit alleging a constitutional violation against a state official in his official capacity for prospective injunctive relief is not a suit against the state and, therefore, does not violate the Eleventh Amendment, Ex Parte Young , 209 U.S. 123, 161, 28 S.Ct. 441, 52 L.Ed. 714 (1908). That is because "[a] state official is subject to suit in his official capacity when his office imbues him with the responsibility to enforce the law or laws at issue in the suit." Grizzle v. Kemp , 634 F.3d 1314, 1319 (11th Cir. 2011).

Here, Plaintiff seeks prospective injunctive relief against the Governor and the Secretary of State in their official capacity. This Court will address Defendant Detzner first. Florida law establishes that, as Secretary of State, Defendant Detzner is the "chief election officer" for the State of Florida. § 97.012, Fla. Stat. (2016). Thus, Defendant Detzner is vested with the power to issue orders directing compliance with the election code or prohibiting violations thereof. And because "[h]is power by virtue of his office sufficiently connect[s] him with the duty of enforc[ing]" the election laws, Ex Parte Young , 209 U.S. at 161, 28 S.Ct. 441, he is a proper party here. Cf. Grizzle , 634 F.3d at 1319 (holding that Georgia Secretary of State was proper party in voting case).

But that does not apply equally to Defendant Scott. Plaintiff implies that Defendant Scott, as Governor, had the authority to extend the voter registration deadline. ECF No. 5, at 3. But it appears that Defendant Scott lacked the authority to extend the deadline. Florida law cloaks the Governor with general emergency management powers. § 252.36, Fla. Stat. (2016). But courts cannot use tunnel vision when construing statutes; rather, statutes must be considered as a whole. John Hancock Mut. Life Ins. Co. v. Harris Trust & Sav. Bank , 510 U.S. 86, 94, 114 S.Ct. 517, 126 L.Ed.2d 524 (1993). And in the event of an emergency or disaster, the Governor is authorized "to suspend or delay any election." § 101.733, Fla. Stat. (2016). That does not imply the Governor is authorized to extend the voter registration. In fact, it implies the opposite. See O'Melveny & Myers v. F.D.I.C. , 512 U.S. 79, 86, 114 S.Ct. 2048, 129 L.Ed.2d 67 (1994) (referencing the canon "Inclusio unius, exclusion alterius "). Furthermore, specific statutes prevail over general ones. D. Ginsberg & Sons v. Popkin , 285 U.S. 204, 208, 52 S.Ct. 322, 76 L.Ed. 704 (1932). Thus, because Defendant Scott's office did not "connect[ ] him with the duty of enforc[ing]" a voter registration extension, Ex Parte Young , 209 U.S. at 161, 28 S.Ct. 441, he does not appear to be a proper party here.

II

Under Civil Rule of Procedure 65(b)(1)(A), a court may issue a temporary restraining order only if "specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss or damage will result to the movant before the adverse party can be heard in opposition." This Court must scrupulously honor Rule 65 requirements and thus it would be improper to issue a temporary restraining order absent compliance. Temporary restraining orders "have the effect of merely preserving the status quo rather than granting most or all of the substantive relief requested" by a plaintiff in a complaint. Fernandez–Roque v. Smith , 671 F.2d 426, 429 (11th Cir. 1982).

For a plaintiff to be entitled to a temporary restraining order, it must show "(1) a substantial likelihood of success on the merits; (2) that irreparable injury will be suffered if the relief is not granted; (3) that the threatened injury outweighs the harm the relief would inflict on the [defendants]; and (4) that entry of the relief would serve the public interest." Schiavo ex rel. Schindler v. Schiavo , 403 F.3d 1223, 1225–26 (11th Cir. 2005). While all of these elements must be established, none is controlling; this Court must instead consider these elements and the strength of the showing made as to each of them together , and a strong showing of (for instance) likelihood of success on the merits may compensate for a relatively weak showing of public interest. See Fla. Med. Ass'n, Inc. v. U.S. Dep't of Health, Educ., & Welfare , 601 F.2d 199, 203 n.2 (5th Cir. 1979).¹

The right to vote is a "precious" and "fundamental" right. Harper v. Va. State Bd. of Elections , 383 U.S. 663, 670, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966). Voting is, indisputably, a right " ‘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 Illinois Bd. of Elections v. Socialist Workers Party , 440 U.S. 173, 184, 99 S.Ct. 983, 59 L.Ed.2d 230 (1979) ). State and local laws that unconstitutionally burden that right are impermissible. Wash. State Grange v. Wash. State Republican Party , 552 U.S. 442, 451, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008).

But that does not mean the right to vote is absolute. Rather, states retain the power to regulate their own elections. Burdick , 504 U.S. at 433, 112 S.Ct. 2059 (citations omitted). Election laws almost always burden the right to vote. See id. ("Election laws will invariably impose some burden upon individual voters."). Some of these regulations must be substantial to ensure that order rather than chaos accompanies our democratic...