League of Women Voters of Florida v. Browning

• Decision Date: 06 August 2008
• Docket Number: No. 08-21243-CIV.,08-21243-CIV.
• Parties: LEAGUE OF WOMEN VOTERS OF FLORIDA, et al., Plaintiffs, v. Kurt S. BROWNING, in his official capacity as Secretary of State of the State of Florida; and Donald L. Palmer, in his official capacity as Director of the Division of Elections within the Department of State for the State of Florida, Defendants.
• Court: U.S. District Court — Southern District of Florida

Page 1298

575 F.Supp.2d 1298

LEAGUE OF WOMEN VOTERS OF FLORIDA, et al., Plaintiffs, v. Kurt S. BROWNING, in his official capacity as Secretary of State of the State of Florida; and Donald L. Palmer, in his official capacity as Director of the Division of Elections within the Department of State for the State of Florida, Defendants.

No. 08-21243-CIV.

United States District Court, S.D. Florida, Miami Division.

August 6, 2008.

COPYRIGHT MATERIAL OMITTED

Corey S. Whiting, Courtney M. Dankworth, Derek S. Tarson, Debevoise & Plimpton, New York, NY, Elizabeth S. Westfall, Advancement Project, Washington, DC, Gary Charles Rosen, Becker & Poliakoff, Fort Lauderdale, FL, for Plaintiffs.

James E. Johnson, Jessica Rita Simonoff, Debevoise & Plimpton, Eliza Meredith Sporn, Melissa Mortazavi, Stephen Gale Dick, Renee Paradis, Wendy Weiser, New York, NY, Robert Harris, Stack Fernandez Anderson & Harris, Miami, FL, Allen C. Winsor, Andre Bardos, Peter V. Antonacci, Gray Robinson, Tallahassee, FL, for Defendants.

ORDER

CECILIA M. ALTONAGA, District Judge.

THIS CAUSE came before the Court for an evidentiary hearing commencing on June 18, 2008, upon Plaintiffs' Motion for Preliminary Injunction [D.E. 24]. Plaintiffs are nonprofit organizations and a private citizen engaged in third-party voter registration activities in Florida. Plaintiffs filed this suit challenging the constitutionality of Florida's recently amended statute regulating the handling of voter registration applications by third-party voter registration organizations. See Fla. Stat. §§ 97.021(36), 97.0575 (2007) (the "Amended Law"). An earlier version of the Amended Law, Fla. Laws 2005-277 § 7 (the ".Original Law"), was found unconstitutional, and its enforcement was preliminarily enjoined. See League of Women Voters of Florida v, Cobb, 447 F.Supp.2d 1314, 1340 (S.D.Fla.2006) ("LWVF I"). The parties and underlying facts in LWVF I are substantially similar to those in this case. Only the text of the challenged legislation has changed.

Plaintiffs now seek a preliminary injunction barring Defendants from enforcing the Amended Law. The Court has carefully considered the parties' written submissions, their oral arguments, the testimony and evidence presented, and applicable law.

I. BACKGROUND

A. Parties

1. Plaintiffs

The League of Women Voters ("LWV") is a political advocacy group. (See Complaint for Declaratory and Injunctive Relief ("Compl.") [D.E. 1] at ¶ 15). The group's Florida affiliate, the League of Women Voters of Florida (the "Florida League"), is a non-partisan, not-for-profit corporation with over 2,800 members and 27 independent local leagues across the state. (See Joint Proposed Findings of Fact in LWVF I ("Proposed Findings") at ¶ 5).¹ The Florida League aims to promote political accountability and effective voter participation in government by

(1) conducting voter registration drives throughout the state; (2) holding educational forums and candidate debates open to the public; (3) publishing a quarterly newsletter and hosting a website; (4) distributing both a non-partisan bi-annual election guide and objective information regarding proposed constitutional amendments in Florida; and (5) distributing information on certain issues and topics.

LWVF I, 447 F.Supp.2d at 1318. Currently, the Florida League has imposed a moratorium on voter registration drives that will continue until the Amended Law is either enjoined or clarified. (See Compl. at ¶ 17).

The Florida AFL-CIO is an association of labor unions comprised of approximately 450 local unions throughout Florida, representing more than 500,000 active and retired paying members. (See id. at ¶ 19). It aims to improve the lives of working families in Florida by, inter alia, encouraging residents to register and vote so they may fully exercise their rights and responsibilities as citizens. See LWVF I, 447 F.Supp.2d at 1319. The group conducts its registration drives through its local unions, which are governed by internal structures not under the control of the AFL-CIO. (See Compl. at ¶ 20). Generally, volunteers encourage members to vote by emphasizing the impact of decisions made by elected officials. See LWVF I, 447 F.Supp.2d at 1319. The Florida AFLCIO also claims it has suspended its voter registration drives in response to the Amended Law. (See Compl. at ¶ 22).

Marilynn Wills ("Wills") has been a member of the LWV for approximately 30 years, is currently on the board of directors of the Tallahassee League, and serves as vice president of the Florida League. (See id. at ¶ 26). Prior to 1995, Wills served as a volunteer deputy registrar conducting voter registration drives without the direct supervision of a supervisor of elections. See LWVF I, 447 F.Supp.2d at 1320. Wills conducts voter registration activities and provides individuals with information about issues of concern, the Florida League, and early voting procedures. (See id.) She did not register voters in 2006 before the court in LWVF I entered its preliminary injunction and will not do so now unless the Amended Law is enjoined or clarified. (See Compl. at ¶ 26).

Wills and the LWV collect voter registration applications and submit them directly to the state voter registration officials. (See Proposed Findings at ¶ 17). During voter registration drives, Florida League volunteers "hand out pamphlets, discuss the importance of registering to vote, provide information about voting, and inform new voters about how they can contact their elected officials." LWVF I, 447 F.Supp.2d at 1318. Some Plaintiffs routinely collect personal data from the voter registration applications by photocopying them. (See Proposed Findings at ¶ 18).

2. Defendants

Kurt Browning is the Secretary of State for the State of Florida. (See Compl. at ¶ 27). As Secretary of State, he is Florida's chief elections officer. See Fla. Stat. § 97.012. Browning must "[o]btain and maintain uniformity in the interpretation and implementation of the election laws" and "[p]rovide uniform standards for the proper and equitable implementation of the registration laws." Id.

Donald Palmer is the Director of the Division of Elections ("Division"). (See Compl. at ¶ 28). Under the Amended Law, Palmer has the authority to investigate violations of the law, assess civil fines, enforce the fines through legal Division of Elections proceedings, and adopt rules to administer the law. (See id.) (citing Fla. Stat. § 97.0575(4)).

B. Procedural Background

As stated, a previous version of the Amended Law was addressed by the district court in LWVF I. The plaintiffs in LWVF I were the Florida League of Women Voters; People Acting for Community Together; Florida AFL-CIO; American Federation of State, County and Municipal Employees Council 79; SEIU Florida Healthcare Union; Wills; and John and Jane Does 1-100. They filed suit against Sue M. Cobb, then-Secretary of State for the State of Florida; and Dawn Roberts, then-Director of the Division. (Proposed Findings at ¶ 1). The parties sought declaratory and injunctive relief barring enforcement of the Original Law.² On August 28, 2006, the court entered a preliminary injunction, concluding that the Original Law was unconstitutional. LWVF I, 447 F.Supp.2d at 1339-40.

While the decision in LWVF I was on appeal, the Florida Legislature enacted the Amended Law, which became effective on January 23, 2008. Fla. Laws 2007-30 § 2. The parties to LWVF I subsequently entered into a standstill agreement whereby Defendants agreed not to enforce the law. (See Compl. at ¶ 2). On March 31, 2008, Defendants announced the termination of the standstill agreement and their intention to enforce the Amended Law. (See id.)

On April 29, 2008, Plaintiffs filed the present action. At a hearing on Plaintiffs' Emergency Motion for Temporary Restraining Order [D.E. 2], the parties agreed to a consent order temporarily halting enforcement of the Amended Law until a final rule implementing the statute is adopted and becomes effective pursuant to the Florida Administrative Procedure Act, Chapter 120, Fla. Stat. (See Consent Order [D.E. 15]). Plaintiffs filed the present Motion on May 14, 2008.

C. Voter Registration in Florida

1. Voter registration process

Prior to 1995, only state officials and individuals deputized by supervisors of elections as registrars were permitted to collect voter registration applications in Florida. (See Proposed Findings at ¶ 11). Individuals wishing to assist in the collection of voter registration applications had to "seek [an] appointment as a volunteer deputy voter registrar, reside in the particular county, and complete a training session." LWVF I, 447 F.Supp.2d at 1317 (citation omitted). In 1993 Congress passed the National Voter Registration Act ("NVRA"), which went into effect on January 1, 1994. (See Proposed Findings at ¶ 11). The NVRA's goal was to "increase the number of eligible citizens who register to vote in elections for Federal Office." (Compl. at ¶ 45) (quoting 42 U.S.C. § 1973gg(b)(1)). In 1995, Florida implemented the NVRA and began permitting third-party groups to collect voter registration applications. (See Proposed Findings at ¶ 11). The implementation increased political advocacy and gave unregistered citizens another means to register to vote. See LWVF I, 447 F.Supp.2d at 1317.

Voter registration in Florida is conducted by various government offices, individual citizens, and private groups. (See Compl. at ¶ 30). Florida election officials are also required by federal and state law to provide applications by mail and at designated locations, such as the Department of Highway Safety and Motor Vehicles, public libraries, and armed forces recruitment offices. (See id.) The applications may be submitted at any time during the year. (See Proposed Findings at ¶ 15). Upon collection, voter registration applications must be processed by state officials before a person is officially registered to vote. (See id. at...