Florida State Conference of NAACP v. Lee

• Citation: 566 F.Supp.3d 1262
• Decision Date: 08 October 2021
• Docket Number: Case No.: 4:21cv187-MW/MAF
• Parties: FLORIDA STATE CONFERENCE OF the NAACP, et. al., Plaintiffs, v. Laurel M. LEE, in her official capacity as Florida Secretary of State, et al., Defendants, and National Republican Senatorial Committee and Republican National Committee, Intervenor-Defendants.
• Court: United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Florida

566 F.Supp.3d 1262

FLORIDA STATE CONFERENCE OF the NAACP, et. al., Plaintiffs,

v. Laurel M. LEE, in her official capacity as Florida Secretary of State, et al., Defendants,andNational Republican Senatorial Committee and Republican National Committee, Intervenor-Defendants.

Case No.: 4:21cv187-MW/MAF

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

Signed October 8, 2021

Cyrus S. Nasseri, Amia Trigg, Mahogane Denea Reed, Naacp Legal Defense & Education Fund Inc., Benjamin Louis Baer Cavataro, Elizabeth T. Fouhey, Jad H. Khazem, Michael Anthony Fletcher, II, Morgan Elizabeth Saunders, Virginia Anne Williamson, Covington & Burling LLP, Washington DC, Ellen Choi, Robert Daniel Fram, Covington & Burling LLP, San Francisco CA, John Z. Morris, Morenike Fajana, Michael Jeremy Pernick, P. Benjamin Duke, Shira M. Poliak,NAACP Legal Defense & Education Fund, New York, NY, Nellie Linn King, Law Offices of Nellie King PA, West Palm Beach, FL, for Disability Rights Florida, Common Cause, Florida State Conference of the NAACP.

Dallin B. Holt, John J. Cycon, Kenneth Clark Daines, Phillip Michael Gordon, Holtzman Vogel Baran et al., Haymarket, VA, Ashley E. Davis, Bradley Robert Mcvay, Colleen E O'Brien, Florida Department of State Office of General Counsel, Gary Vergil Perko, Mohammad Omar Jazil, Holtzman Vogel Baran et al., Tallahassee, FL, for Defendant Laurel M. Lee.

Diana Masters Johnson, Robert Charles Swain, Alachua County Attorney's Office,Gainesville, FL, for Defendant Kim A. Barton.

Edward Paul Cuffe, Susan Smith Erdelyi, Marks Gray PA, Jacksonville, FL, for Defendant Christopher Milton, Mark Andersen, Amanda Seyfang, Sharon Chason, Tomi Stinson Brown, Starlet Cannon, Heather Riley, Shirley G Knight, Laura Hutto.

ORDER ON MOTION TO DISMISS

Mark E. Walker, Chief United States District Judge This is a voting rights case. Plaintiffs are nonprofit groups who challenge "Florida's newly enacted law, Senate Bill 90" ("SB 90"), which they allege "illegally and unconstitutionally burdens the right to vote." ECF No. 45 at 6. Plaintiffs allege that while the challenged provisions in SB 90 affect all voters, "the brunt of the harm will be borne by Black voters, Latino voters, elderly voters, and voters with disabilities." Id. ¶ 9. Plaintiffs have sued Florida's Secretary of State, Laurel Lee, and Florida's 67 county Supervisors of Elections. Defendant Lee has moved to dismiss Plaintiffs' amended complaint. ECF No. 92.

This Court has considered, without hearing, Defendant Lee's motion to dismiss, id. , her memorandum in support, ECF No. 92-1, all other attachments, and Plaintiffs' response in opposition to the motion, ECF No. 147.¹ This Court has also reviewed the parties' supplemental briefing related to Plaintiffs' Article III standing to proceed against Defendant Lee. ECF Nos. 148 and 166. For the reasons set out below, Defendant Lee's motion is GRANTED in part and DENIED in part .

I

Plaintiffs Florida State Conference of the NAACP ("Florida NAACP"), Disability Rights Florida ("DRF"), and Common Cause filed their amended complaint on June 11, 2021, alleging six counts against Defendant Lee (Counts I, II, III, VI, VII, and VIII) and nine counts against Defendant Supervisors (Counts I–IX). ECF No. 45. Before discussing Plaintiffs' claims in more detail, some background information regarding Plaintiffs and their alleged injuries is necessary.

A

Starting with the Florida NAACP, Plaintiffs allege that it is "a nonprofit, nonpartisan civil rights organization in Florida," indeed "the oldest civil rights organization in Florida, [that] serves as the umbrella organization for local branch units throughout the state." Id. ¶ 17. The organization's mission "is to ensure the political, social, educational, and economic equality of all persons and to eliminate race-based discrimination." Id. The organization has "[f]or decades ... engaged heavily in statewide voter registration, public education, and advocacy concerning the right to vote in order to encourage civic and electoral participation among its members and other voters." Id.

The Florida NAACP has about 12,000 members who "are predominantly Black and other minority individuals, and include registered voters who reside throughout the state." Id. Plaintiffs allege that "SB 90's restrictive provisions will severely burden or deny [the Florida NAACP's members'] right to vote ... by imposing restrictions," including limitations on "standing [vote-by-mail] applications; severe limitations on where, when, and how drop boxes can be used; strict limitations on third-party [vote-by-mail] ballot return; and potential criminal penalties for individuals who provide free food and water or other assistance to voters." Id. ¶ 18.

The Florida NAACP also alleges that the challenged provisions "make it substantially more difficult for the Florida NAACP to engage in its civic mission." Id. ¶ 19. "For instance, in recent elections, the Florida NAACP engaged in large-scale ballot return efforts in which voters brought their completed [vote-by-mail] ballots to churches or local NAACP chapter meetings," where the organization's members then returned the completed ballots to the Supervisors of Elections' offices or drop boxes on the voters' behalf. Id. Florida NAACP members also volunteer to provide food and water "to voters waiting in long lines in Black communities across the state," which may now be a crime under one of the challenged provisions. Id. Finally, Plaintiffs allege that the challenged provisions will "require the Florida NAACP to divert time, money, and resources away from other activities, such as programming and initiatives concerning the school-to-prison pipeline and eliminating academic and educational inequities and mass incarceration," to now "assist and educate its members and other Florida voters who are burdened by the Challenged Provisions." Id. For these reasons, the challenged provisions "adversely impact[ ] the Florida NAACP's operations." Id.

As to DRF, Plaintiffs allege that it is "an independent, nonprofit corporation designated by law as Florida's federally funded protection and advocacy system ... for individuals with disabilities." Id. ¶ 20. Federal law authorizes DRF "to pursue legal, administrative, and other appropriate remedies to ensure the protection of, and advocacy for, the rights of individuals with disabilities." Id. DRF's "work includes significant efforts devoted to political participation of people with disabilities and the challenges they face when voting[.]" Id. "DRF engages in legislative and public advocacy on these issues, directly engages with and trains election officials and voters on expanding voting accessibility, promotes robust voter registration, and engages in voter hotline and voter education efforts." Id. ¶ 21.

DRF alleges that the challenged provisions in SB 90 will severely burden or deny their constituents' right to vote "by imposing restrictions for standing [vote-by-mail] applications; severe limitations on where, when, and how drop boxes can be used; limitations on third-party [vote-by-mail] ballot return; and potential criminal penalties for individuals who provide relief, such as free food and water or other assistance, to people standing in line to vote." Id. ¶ 22. As a result, "[t]hese restrictions will also make it substantially more difficult for DRF to engage in its civic engagement mission," and will "require DRF to divert time, money, and resources away" from numerous other activities, "to work including, but not limited to, conducting public education for voters with disabilities to understand the new restrictions on [vote-by-mail] access," "providing public guidance on the collection and return of ballots for voters with disabilities," and "conducting statewide outreach to facilities and people with disabilities whose abilities to receive and return ballots will be curtailed." Id.

With respect to Common Cause, Plaintiffs allege that it "is a nonpartisan, nonprofit citizen lobby ... devoted to electoral reform, ethics in government, and the protection of citizens' rights in national, state, and local elections." Id. ¶ 23. Common Cause has about 55,000 Florida members and it "advocates for policies at the state and local level to ensure that elections are free, fair, and accessible." Id. "Common Cause also encourages and supports voter participation in elections by, among other things, engaging in voter education and outreach efforts," "acting as a lead coordinator for the nonpartisan Florida Election Protection Coalition," "monitoring and correcting election-related disinformation online," and "funding translation of election information into Spanish and Haitian Creole for non-English-speaking voters." Id.

Common Cause alleges that the challenged provisions in SB 90 will severely burden or deny their members' right to vote "by imposing restrictions for standing [vote-by-mail] applications; severe limitations on where, when, and how drop boxes can be used; limitations on third-party [vote-by-mail] ballot return; and potential criminal penalties for individuals who provide free food or water or other assistance." Id. ¶ 24. Common Cause also alleges these provisions "make it substantially more difficult ... to engage in its civic engagement mission in Florida," and also forces Common Cause divert its resources from other activities like planning "to engage in public education and advocacy concerning the redistricting process in Florida," to "voter engagement and education programming," "recruiting more volunteers, temporary staff, and contractors to inform and educate voters about their rights as they are affected by the new law," and "hiring these staff members earlier in the election cycle than originally planned." Id. In addition, Common Cause alleges that SB 90 now "necessitate[s] capacity-building and investment of Common Cause resources in programming, staffing, volunteer management, and voter education in order to...