Florida Democratic Party v. Hood
| Decision Date | 21 October 2004 |
| Docket Number | No. 4:04CV395RH/WCS.,4:04CV395RH/WCS. |
| Citation | 342 F.Supp.2d 1073 |
| Parties | The FLORIDA DEMOCRATIC PARTY, Plaintiff, v. Glenda E. HOOD, etc., et al., Defendants. |
| Court | U.S. District Court — Northern District of Florida |
Alan Harold Fein, Christopher L. Barnett, Stearns Weaver Miller Etc, Miami, FL, for Plaintiff.
George N Meros, Jr., Grayrobinson PA, Jonathan Alan Glogau, Attorney General, Tallahassee, FL, for Defendants.
ORDER GRANTING PRELIMINARY INJUNCTION
In this action plaintiff asserts that a prospective voter in a federal election has a right under federal law (1) to cast a provisional ballot at a polling place even if local officials assert that the voter is at the wrong polling place, and (2) to have that ballot counted, even if the voter is in fact at the wrong polling place, if the voter meets all requirements of state law other than the requirement to vote at the proper polling place. Plaintiff has moved for a preliminary injunction requiring the defendant election officials of the State of Florida to afford voters these rights in the November 2004 election. I conclude that plaintiff is likely to prevail on the merits with respect to the first claimed right but unlikely to prevail with respect to the second. I conclude further that plaintiff has met the other prerequisites to issuance of a preliminary injunction. I thus grant the motion for preliminary injunction in part.1
The Florida Democratic Party brought this action against the Florida Secretary of State and Director of the Division of Elections in their official capacities. These are the state officials with ultimate responsibility for conducting the November 2004 election in Florida. On the ballot will be elections for President, United States Senate, and United States House of Representatives, as well as numerous state and local offices and proposed constitutional amendments.
Plaintiff seeks relief under a section of the Help America Vote Act ("HAVA"), 42 U.S.C. § 15482, that gives voters in federal elections a right to cast "provisional" ballots. Provisional ballots are cast by persons who assert they are eligible to vote but who are determined on the spot by election workers to be ineligible. Each provisional ballot is kept in a separate envelope and counted only if it is ultimately determined that the voter was in fact eligible to vote. What it means to be "eligible" for these purposes is one of the issues in this litigation.
As required by § 15482, as well as by Florida Statutes §§ 101.048 and 101.049 (2003), defendants have established a system for provisional voting. Plaintiff asserts, however, that defendants' system violates HAVA because it does not allow provisional voting other than in the voter's assigned precinct.2
Under long-established Florida law, each voter is assigned to a precinct and may vote on election day only at the polling place for that precinct.3 Defendants have announced that a provisional vote will be counted only if the voter casts the ballot at the proper polling place.4 Further, defendants have issued an instructional manual telling poll workers not to allow a voter to cast a provisional ballot if the poll workers determine that the voter is at the wrong polling place.5
By its complaint in this action, plaintiff seeks declaratory and injunctive relief. Plaintiff asserts that a prospective voter in a federal election has a right under federal law to cast a provisional ballot, and to have that ballot counted, without regard to state law requiring that votes be cast only at an assigned polling place. Plaintiff has moved for a preliminary injunction.
Defendants initially contested both a voter's right to cast a ballot at a polling place believed by election workers to be the wrong polling place, and a voter's right to have such a ballot counted. During the hearing on plaintiff's motion for preliminary injunction and in response to questioning by the court, however, defendants withdrew their assertion that a voter cannot properly cast a provisional ballot if election workers conclude at that time that the voter is at the wrong polling place. Instead, defendants now concede that a voter must be allowed to cast a provisional ballot if the voter makes the declaration and written attestation required by federal law, even if election workers conclude the voter is at the wrong polling place. Defendants now have so advised the various county supervisors of elections by means of a memorandum explicitly supplementing the relevant provisions of the instructional manual. Defendants remain adamant, however, that a provisional ballot cannot properly be counted unless the voter was, in fact, at the correct polling place.
Defendants also defend this action, and resist issuance of a preliminary injunction, on the ground that HAVA's section on provisional voting creates no federal "right" and thus cannot be enforced in a private action under § 1983, and on the ground that plaintiff lacks standing to assert the rights of anyone to whom injury resulting from the actions at issue is more than a speculative possibility.
As both sides agree, issuance of a preliminary injunction is governed by a familiar four-part test. The proponent must establish (1) a substantial likelihood of success on the merits; (2) that the proponent will suffer irreparable injury unless the injunction issues; (3) that the threatened injury outweighs whatever damage the proposed injunction may cause the opposing party; and (4) that the injunction would not be adverse to the public interest. McDonald's Corp. v. Robertson, 147 F.3d 1301, 1306 (11th Cir.1998); U.S. v. Lambert, 695 F.2d 536 (11th Cir.1983).
Likelihood of success on the merits, in the context of this case, refers both to the substantive issues under HAVA and also to the questions of whether plaintiff has standing and may maintain a private right of action for enforcement of HAVA under § 1983.
Congress enacted HAVA at least partly in response to perceived voting irregularities in the State of Florida during the November 2000 presidential election. See 148 Cong. Rec. S10488-02 (2002) (). Among the perceived irregularities was that eligible voters had been removed from Florida voting rolls in the erroneous belief that they were convicted felons whose right to vote had not been restored. At the time of the November 2000 election, Florida law did not allow the casting of a ballot by a person who presented at a polling place on election day but who was determined by election officials at that time not to be eligible to vote. If the determination that the voter was not eligible later turned out to be erroneous, the problem could not be cured. Those turned away from the polls during the November 2000 election, even erroneously, thus had no opportunity to vote. Many other states also made no provision for the casting of a ballot by a person determined on the spot to be ineligible to vote.
HAVA dealt with this problem by creating a system for provisional balloting, that is, a system under which a ballot would be submitted on election day but counted if and only if the person was later determined to have been entitled to vote. The statute provides in relevant part:
(a) Provisional voting requirements
If an individual declares that such individual is a registered voter in the jurisdiction in which the individual desires to vote and that the individual is eligible to vote in an election for Federal office, but the name of the individual does not appear on the official list of eligible voters for the polling place or an election official asserts that the individual is not eligible to vote, such individual shall be permitted to cast a provisional ballot as follows:
(1) An election official at the polling place shall notify the individual that the individual may cast a provisional ballot in that election.
(2) The individual shall be permitted to cast a provisional ballot at that polling place upon the execution of a written affirmation by the individual before an election official at the polling place stating that the individual is —
(A) a registered voter in the jurisdiction in which the individual desire to vote; and
(B) eligible to vote in that election.
(3) An election official at the polling place shall transmit the ballot cast by the individual or the voter information contained in the written affirmation executed by the individual under paragraph (2) to an appropriate State or local election official for prompt verification under paragraph (4).
(4) If the appropriate State or local election official to whom the ballot or voter information is transmitted under paragraph (3) determines that the individual is eligible under State law to vote, the individual's provisional ballot shall be counted as a vote in that election in accordance with State law.
42 U.S.C. § 15482 (emphasis added).
HAVA also requires state or local elections officials to post specified information at each polling place, including "information on the right of an individual to cast a provisional ballot and instructions on how to contact the appropriate officials if these rights are alleged to have been violated." 42 U.S.C. § 15482(b)(2)(E).
HAVA does not itself create a private right of action. Plaintiff claims, however, that HAVA creates a federal "right," and that that right may be enforced against state officials under 42 U.S.C. § 1983. I agree.
The law applicable to this issue is set forth in a line of cases recently summarized in Schwier v. Cox, 340 F.3d 1284 (11th Cir.2003). See, e.g., Gonzaga University v. Doe, 536 U.S. 273, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002); Blessing v. Freestone, 520 U.S. 329, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997); Wilder v. Virginia Hospital Assn., 496 U.S. 498, 110 S.Ct. 2510, 110...
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