Madera v. Detzner

• Decision Date: 10 September 2018
• Docket Number: Case No. 1:18-cv-152-MW/GRJ
• Citation: 325 F.Supp.3d 1269
• Parties: Marta Valentina Rivera MADERA, on behalf of herself and all others similarly situated, Faith in Florida, Hispanic Federation, Mi Familia Vota Education Fund, UnidosUS, and Vamos4PR, Plaintiffs, v. Kenneth W. DETZNER, in his official capacity as the Florida Secretary of State, and Kim A. Barton, in her official capacity as Alachua County Supervisor of Elections, on behalf of herself and similarly situated County Supervisors of Elections, Defendants.
• Court: U.S. District Court — Northern District of Florida

325 F.Supp.3d 1269

Marta Valentina Rivera MADERA, on behalf of herself and all others similarly situated, Faith in Florida, Hispanic Federation, Mi Familia Vota Education Fund, UnidosUS, and Vamos4PR, Plaintiffs,

v.Kenneth W. DETZNER, in his official capacity as the Florida Secretary of State, and Kim A. Barton, in her official capacity as Alachua County Supervisor of Elections, on behalf of herself and similarly situated County Supervisors of Elections, Defendants.

Case No. 1:18-cv-152-MW/GRJ

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

Signed September 10, 2018

Corinne F. Johnson, Matthew John Murray, Megan Claire Wachspress, Stacey Monica Leyton, Stephen Paul Berzon, Altshuler Berzon LLP, San Francisco, CA, Stuart C. Naifeh, Demos, Esperanza Segarra, New York, NY, Kira Romero-Craft, Latino Justice PRLDEF, Orlando, FL, Katherine Roberson-Young, Service Employees International Union, North Miami, FL, Nicole Gina Berner, Service Employees International Union, Washington, DC, for Plaintiffs.

David Andrew Fugett, Florida Department of State Office of General Counsel, Gary Vergil Perko, Malcolm Noble Means, Mohammad Omar Jazil, Hopping Green & Sams PA, Jesse Craig Dyer, Department of State, John T. Lavia, III, Gardner Bist Bowden et al., Ronald A. Labasky, Brewton Plante PA, Tallahassee, FL, Corbin Frederick Hanson, Robert Charles Swain, Alachua County Attorneys Office, Gainesville, FL, for Defendants.

ORDER GRANTING MOTION FOR PRELIMINARY INJUNCTION IN PART ¹

Mark E. Walker, Chief United States District Judge

Here we are again. The clock hits 6:00 a.m. Sonny and Cher's "I Got You Babe" starts playing. Denizens of and visitors to Punxsutawney, Pennsylvania eagerly await the groundhog's prediction. And the state of Florida is alleged to violate federal law in its handling of elections.²

Puerto Ricans are American citizens. Unique among Americans, they are not educated primarily in English—and do not need to be. But, like all American citizens, they possess the fundamental right to vote. The issue in this case is whether Florida officials, consistent with longstanding federal law, must provide assistance to Puerto Rican voters who wish to vote. Under the plain language of the Voting Rights Act, they must.

This Court has considered, after a hearing on September 5, 2018, Defendant Kenneth Detzner's motion to dismiss, ECF No. 42, and Plaintiffs' motion for preliminary injunction. ECF No. 2. Defendant Detzner's motion is DENIED . Having balanced the equities, Plaintiffs' motion is GRANTED in part and DENIED in part .³ This Court is issuing this Order on an expedited basis to give the Secretary and the Scott administration ample opportunity to appeal if they seek to block their fellow citizens, many of whom fled after Hurricane Maria devastated Puerto Rico, from casting meaningful ballots.⁴

I

While lost on some, Puerto Rico is part of the United States. 8 U.S.C. § 1101(a). The American flag has flown over the island since 1898, and its people have been American citizens since 1917. Arroyo v. Tucker , 372 F.Supp. 764, 766 (E.D. Pa. 1974) (citing 8 U.S.C. § 1402 ); see also 8 U.S.C. § 1401(a). In 1965, Congress passed the Voting Rights Act. Among its many provisions, the Act establishes and protects the voting rights of citizens educated in Puerto Rico. 52 U.S.C. § 10303(e).⁵ Congress explicitly passed this provision to address the Puerto Rican population living outside of Puerto Rico. Katzenbach v. Morgan , 384 U.S. 641, 645 n.3, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966).

Florida has 67 counties. Thirteen counties provide Spanish-language ballots in compliance with another provision of the Voting Rights Act. 52 U.S.C. § 10503(b)(2)(A). This provision requires non-English ballots in political subdivisions where either more than five percent of the voting-age citizenry or more than 10,000 citizens of voting age are members of a single-language minority and have limited proficiency in English.⁶ Id. Two counties—Collier and Volusia—are not required to provide Spanish-language election materials to comply with this provision, but they do anyway. ECF No. 2, Ex. 3, at ¶ 6, Ex. 4, at ¶¶ 5–6. The remaining 52 counties conduct English-only elections in that they, among other things, only provide ballots in English and provide limited support for Spanish speakers. This lack of support includes a lack of Spanish sample ballots and a lack of bilingual election personnel. See generally ECF No. 2, at 6–7. Plaintiffs have identified 32 such counties with Puerto Rican populations ("the Counties").⁷

Plaintiff Marta Valentina Rivera Madera was born in Santa Isabel, Puerto Rico. ECF No. 25, at ¶ 2. She attended elementary, middle, and high school in San Juan, Puerto Rico where instruction was mostly in Spanish. Id. Spanish is her first language and she does not read, speak, or understand English well. Id. at ¶¶ 4–5.

In September 2017, Hurricane Maria devastated Puerto Rico. As a direct result of that natural calamity, Ms. Rivera Madera moved to Gainesville, Florida where her daughter lives in October. Id. at ¶ 3. Ms. Rivera Madera would like to vote in the November 2018 elections. Id. at ¶ 8. She believes she will not be able to vote effectively without access to Spanish-language election materials.

Plaintiffs Mi Familia Vote Education Fund, Hispanic Federation, Faith in Florida, UnidosUS, and Vamos4PR ("Organizational Plaintiffs") are non-profit organizations dedicated to, among other things, community organizing and promoting civic engagement—including voter outreach—in the Latino community. ECF No. 2, Ex. 5, at ¶¶ 2–6, Ex. 6, at ¶¶ 3–6, Ex. 7, at ¶¶ 3–5, Ex. 8, at ¶¶ 3–5, Ex. 9, at ¶¶ 2–4. These organizations have been especially engaged in voter outreach to the Puerto Rican population in Florida following Hurricane Maria. ECF No. 2, at 8. Part of this outreach involves securing Spanish-language ballots and election materials for Spanish-speaking voters in those counties not currently providing those materials. ECF No. 2, Ex. 5, at ¶ 10, Ex. 6, at ¶ 5–6, Ex. 7, at ¶ 5, Ex. 8, at ¶ 6, Ex. 9, at ¶ 6.

Some of the Organizational Plaintiffs have actively sought to secure Spanish-language election materials in Florida counties with large Puerto Rican populations that did not already provide such materials. ECF No. 3, at ¶¶ 4–10. These Plaintiffs sent letters to 13 allegedly non-complying counties in April and followed up in June.⁸ Id. at ¶¶ 5 & 8. Ultimately, the counties declined to commit to providing official Spanish-language ballots for the November 2018 election. Id. at ¶ 10.

The Plaintiffs brought suit in this Court on August 16, 2018. Plaintiffs are suing to enforce Section 4(e) of the Voting Rights Act in 32 counties ("the Counties") that contain Puerto Rican populations but currently conduct English-only elections. They move for preliminary injunction and seek to enjoin Defendants to provide bilingual ballots, sample ballots, absentee and early voting applications and ballots, provisional ballots, voter registration forms, voting instructions, voter information, polling place notifications, and polling place signage, to all be created by a certified translator, and to ensure that all election information is digitally available in Spanish. ECF No. 2, at 31.

II

This Court first addresses Defendant Detzner's motion to dismiss. The Secretary of State predictably attempts to evade federal jurisdiction by challenging Plaintiffs' standing, asserting sovereign immunity, and claiming Plaintiffs have failed to state a claim. ECF No. 42, at 3–15. These arguments are not persuasive.

A

First, the Secretary of State claims he has no relevant power over the county supervisors of elections. Specifically, Defendant Detzner argues that Plaintiffs have failed to establish the causation element of standing, one of three necessary requirements for a party to sue another, along with injury and redressability. Lujan v. Defs. of Wildlife , 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). This argument is not convincing.

Causation can be established through a party's action or inaction . See, e.g. , Massachusetts v. E.P.A. , 549 U.S. 497, 523, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007) (holding that the Environmental Protection Agency's "refusal to regulate" certain emissions contributes to plaintiffs' injury). A party must show "its injury was fairly traceable" to Defendant Detzner. Hollywood Mobile Estates Ltd. v. Seminole Tribe , 641 F.3d 1259, 1265 (11th Cir. 2011).⁹

As this Court notes with tiresome regularity, Defendant Detzner is Florida's "chief election officer." Fla. Stat. § 97.012 ; see also League of Women Voters v. Detzner , 314 F.Supp.3d 1205, 1211 (N.D. Fla. 2018), Fla. Democratic Party v. Scott , 215 F.Supp.3d 1250, 1255 (N.D. Fla. 2016), and Fla. Democratic Party v. Detzner , 2016 WL 6090943, at *5 (N.D. Fla. Oct. 16, 2016). This statutory job description is not window dressing

. The Secretary of State must "[o]btain and maintain uniformity in the interpretation and implementation of the election laws" and promulgate rules for the "proper and equitable interpretation and implementation" of election laws. Fla. Stat. § 97.012(1). Additionally, the Department of State "shall have general supervision and administration of the election laws, corporation laws and such other laws as are placed under it by the Legislature." Fla. Stat. § 15.13.¹⁰

Under rules the Department of State has promulgated, "[b]allots shall be translated into other languages that are required by law or court order." Fla. Admin. Code. R. 1S-2.032 (2018) (emphasis added). This rule is the Secretary of State's own affirmative acknowledgment of his responsibilities, passed pursuant to state law. Fla. Stat. § 97.012(1). There is no qualifying language in the rule. There is no asterisk after the provision stating "except for the Voting Rights Act of 1965." This Court does not—and cannot—read a limitation into this provision.

Defendant Detzner has the responsibility to...