Harriet Tubman Freedom Fighters Corp. v. Lee

• Decision Date: 20 December 2021
• Docket Number: Case No.: 4:21cv242-MW/MAF
• Citation: 576 F.Supp.3d 994
• Parties: HARRIET TUBMAN FREEDOM FIGHTERS CORP., 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: U.S. District Court — Northern District of Florida

576 F.Supp.3d 994

HARRIET TUBMAN FREEDOM FIGHTERS CORP., 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.: 4:21cv242-MW/MAF

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

Signed December 20, 2021

Caren E. Short, Jack Michael Genberg, Southern Poverty Law Center, Decatur, GA, Emma Chase Bellamy, Atlanta, GA, Brendan D. O'Callaghan, Baker & McKenzie LLP, Cecilia Aguilera, Jonathan Lee Sherman, Michelle E. Kanter Cohen, Fair Elections Center, Washington, DC, Carlton Aline Tarpley, Debra A. Dandeneau, William H. DeVaney, III, Baker & McKenzie LLP, New York, NY, Peter William Shapiro, Pro Hac Vice, Baker & McKenzie LLP, San Francisco, CA, Nancy Gbana Abudu, Southern Poverty Law Center, Montgomery, AL, for Plaintiff Harriet Tubman Freedom Fighters Corp.

Cecilia Aguilera, Jonathan Lee Sherman, Fair Elections Center, Washington, DC, Emma Chase Bellamy, Atlanta, GA, Nancy Gbana Abudu, Southern Poverty Law Center, Montgomery, AL, Carlton Aline Tarpley, Debra A. Dandeneau, William H. DeVaney, III, Baker & McKenzie LLP, New York, NY, for Plaintiffs Paralyzed Veterans of America Florida Chapter, Paralyzed Veterans of America Central Florida Chapter, Stephen Kirk.

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

Bilal Ahmed Faruqui, Karen Ann Brodeen, William Edward Chorba, William Henry Stafford, III, Florida Office of the Attorney General, Tallahassee, FL, for Defendant Ashley Moody.

Frank Michael Mari, John M. Janousek, Roper PA, Orlando, FL, for Defendants Kaiti Lenhart, Lori Scott, Heath Driggers, Connie Sanchez, Penny Ogg.

Craig Dennis Feiser, Office of General Counsel, Jacksonville, FL, for Defendant Mike Hogan.

Susan Smith Erdelyi, Marks Gray PA, Jacksonville, FL, for Defendants Joseph R. Morgan, Janet H. Adkins, Tomi S. Brown, Chris Milton, Laura Hutto, Jennifer M. Kinsey, Vicky Oakes, Amanda Seyfang, William Keen, Mark Andersen, Sharon Chason, Tappie A. Villane.

London Lee Ott, Volusia County Attorney, DeLand, FL, for Defendant Lisa Lewis.

Ronald A. Labasky, Brewton Plante PA, John T. Lavia, III, Gardner Bist Bowden et al., Tallahassee, FL, for Defendants Mary Jane Arrington, Chris H. Chambless, Vicki Davis, Gertrude Walker.

Nicholas Ari Shannin, Shannin Law Firm PA, Orlando, FL, for Defendant Bill Cowles.

Michael Beny Valdes, Miami-Dade County Attorneys Office, Miami, FL, for Defendant Christina White.

Andy V. Bardos, GrayRobinson PA, Tallahassee, FL, for Defendants Tommy Doyle, Alan Hays, Wesley Wilcox, Christopher Anderson, Leslie Swan, Paul A. Stamoulis, Joyce Griffin.

Dale A. Scott, Roper PA, Orlando, FL, for Defendant Maureen Baird.

Elizabeth Desloge Ellis, Gregory Thomas Stewart, Kirsten H. Mood, Nabors Giblin & Nickerson PA, Tallahassee, FL, for Defendant Paul A. Lux.

Benjamin Salzillo, Brendalyn Edwards, Joseph K. Jarone, Nathaniel Adam Klitsberg, Broward County Attorneys Office, Fort Lauderdale, FL, for Defendant Joe Scott.

Diana Masters Johnson, Robert Charles Swain, Alachua County Attorneys Office, Gainesville, FL, for Defendant Kim Barton.

Kia M. Johnson, Matthew Reed Shaud, Clark Partington, Pensacola, FL, for Defendant David H. Stafford.

Ashley Dolan Houlihan, Palm Beach County Supervisor of Elections, West Palm Beach, FL, for Defendant Wendy Link.

Morgan Ray Bentley, Bentley & Bruning PA, Asarasota, FL, for Defendant Ron Turner.

Jon A. Jouben, Hernando County, Brookesville, FL, Kyle J. Benda, Hernando County Attorneys Office, Brooksville, FL, for Defendant Shirley Anderson.

Cameron Thomas Norris, Daniel Joseph Shapiro, Consovoy McCarthy PLLC, Arlington, VA, Tyler R. Green, Consovoy McCarthy PLLC, Salt Lake City, UT, Amber Stoner Nunnally, Benjamin J. Gibson, Daniel Elden Nordby, George N. Meros, Jr., Tara R. Price, Shutts & Bowen LLP, Tallahassee, FL, Frank A. Zacherl, Shutts & Bowen LLP, Miami, FL, for Intervenor-Defendant Republican National Committee.

Cameron Thomas Norris, Steven Christopher Begakis, Daniel Joseph Shapiro, Consovoy McCarthy PLLC, Arlington, VA, Tyler R. Green, Consovoy McCarthy PLLC, Salt Lake City, UT, Amber Stoner Nunnally, Benjamin J. Gibson, Daniel Elden Nordby, George N. Meros, Jr., Tara R. Price, Shutts & Bowen LLP, Tallahassee, FL, Frank A. Zacherl, Shutts & Bowen LLP, Miami, FL, for Intervenor-Defendant. National Republican Senatorial Committee.

ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

Mark E. Walker, Chief United States District Judge This is a voting case. This Court has considered, without hearing, the parties’ cross-motions for summary judgment and evidence attached in support thereof. Plaintiff has challenged several new laws enacted or amended by the Florida Legislature in SB 90. Defendant Lee, joined in full by Defendant Moody and joined in part by Intervenor-Defendants, has moved for summary judgment, asserting that Plaintiff lacks standing to challenge these laws, and in the alternative, that no dispute of material fact exists as to each claim and that Defendants are legally entitled to judgment. ECF Nos. 215 and 217. Plaintiff has moved for partial summary judgment as to certain claims. ECF No. 216. This Order addresses each issue, starting with whether Plaintiff has demonstrated standing at the summary-judgment stage.¹

I

To establish standing, Plaintiff must show (1) that it has suffered an injury-in-fact that is (2) traceable to Defendant and that (3) can likely be redressed by a favorable ruling. See Lujan v. Defs. of Wildlife , 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). And it must do so for each statutory provision it challenges. CAMP Legal Def. Fund, Inc. v. City of Atlanta , 451 F.3d 1257, 1273 (11th Cir. 2006) (emphasizing that courts have an "independent obligation ... to ensure a case or controversy exists as to each challenged provision even in a case where the plaintiffs established harm under one provision of the statute").

An organization may have standing to assert claims based on injuries to itself if that organization is affected in a tangible way. See Fla. Democratic Party v. Hood , 342 F. Supp. 2d 1073, 1079 (N.D. Fla. 2004) ("An organization has standing to challenge conduct that impedes its ability to attract members, to raise revenues, or to fulfill its purposes." (citing Havens Realty Corp. v. Coleman , 455 U.S. 363, 379, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982) )). Here, Plaintiff proceeds under a diversion-of-resources theory. "Under the diversion-of-resources theory, an organization has standing to sue when a defendant's illegal acts impair the organization's ability to engage in its own projects by forcing the organization to divert resources in response." Arcia v. Fla. Sec'y of State , 772 F.3d 1335, 1341 (11th Cir. 2014).

"The party invoking federal jurisdiction bears the burden of proving standing." Bischoff v. Osceola Cnty., Fla. , 222 F.3d 874, 878 (11th Cir. 2000). Critically, "each element of standing ‘must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.’ " Id. (quoting Lujan , 504 U.S. at 561, 112 S.Ct. 2130 ). Accordingly, "when standing is raised at the summary judgment stage, the plaintiff must ‘set forth by affidavit or other evidence specific facts, which for purposes of the summary judgment motion will be taken as true.’ " Id. (quoting Lujan , 504 U.S. at 561, 112 S.Ct. 2130 ).

In this case, Defendant Lee asserts that Plaintiff was not an approved third-party voter registration organization ("3PVRO") until after the enactment of the challenged registration-warning provision and thus, it is "inconceivable" that Plaintiff has had to divert resources away from other programs to address this requirement. ECF No. 215-1 at 9. In short, Defendant Lee claims, without citation to authority, that "the diversion theory cannot work when there exists no baseline to measure diversion against—there is no pre-2021 Law state for [Plaintiff] to compare with its post-2021 Law operations." Id. at 10.² Not so.

This Court recognized Plaintiff's cognizable injury under a diversion-of-resources theory at the pleading stage, ECF No. 190 at 12–13, and now Plaintiff has put meat on the bones to show its limited resources—that would otherwise be used to generate educational materials, hire more canvassers, and build community capacity—are diverted to pay staff to train on the registration-warning requirement and generate printed forms to comply with the challenged law. See, e.g. , ECF No. 232 at 9 n.13–14; see also ECF No. 227-2 at 14–15 (Plaintiff's 30(b)(6) deposition excerpts) and ECF No. 227-6 (voter registration acknowledgment form). Plaintiff's evidence demonstrates that, because of the challenged law, it has had to "divert personnel and time from other activities to educating volunteers and voters on compliance with the requirement." Jacobson v. Fla. Sec'y of State , 974 F.3d 1236, 1250 (11th Cir. 2020) (internal quotation marks omitted) (quoting Fla. State Conf. of NAACP v. Browning , 522 F.3d 1153, 1166 (11th Cir. 2008) ). Plaintiff has established its injury-in-fact based on a diversion of resources at the summary-judgment stage.

Defendant Lee also suggests that Plaintiff's failure to account for the number of voters who have been dissuaded from registering because of the warning requirement shows that Plaintiff cannot prove that the warning requirement undermines its credibility in the communities where it works. ECF No. 215-1 at 9. But this in no way undermines Plaintiff's...