in the united states district court for the district of ... · no. 1355, an omnibus bill revising...

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

STATE OF FLORIDA,

Plaintiff,

v. UNITED STATES OF AMERICA and ERIC H. HOLDER, JR., in his official capacity as Attorney General of the United States,

Defendants,

v. KENNETH SULLIVAN, et. al.,

Defendant-Intervenors

Civil No. 1:11-cv-01428-CKK-MG-ESH

MOTION FOR LEAVE TO AMEND THE COMPLAINT

Pursuant to this Court’s Scheduling Order (Doc. 120), Fed. R. Civ. P. 15, and

Local Rule 7, the State of Florida submits the following Motion for Leave to Amend the

Complaint. In light of League of Women Voters of Florida v. Browning, No. 11-cv-628

(N.D. Fla.), certain provisions of the Third Party Changes1 will now be permanently

enjoined. Florida therefore no longer seeks preclearance for these enjoined changes. In

the interests of expediency and judicial economy, and to allow this action to be decided in

1 “Third Party Changes” refers to the changes to Fla. Stat. § 97.0575, see V1 21-22, ¶¶ 76-86 (amended complaint); V1 279-82 (redline of changes to Fla. Stat. § 97.0575), and the changes to Fla. Admin. Rule 1S-2.042, which are the implementing regulations of Fla. Stat. 97.0575, see V1 21-22, ¶¶ 76-86 (amended complaint); V1 35-47 (text of Fla. Admin. Rule 1S-2.042 (2011) and accompanying forms); V1 301-05 (redline of changes to Fla. Admin. Rule 1S-2.042).

Case 1:11-cv-01428-CKK-MG-ESH Document 143 Filed 08/10/12 of 2

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advance of the November 2012 elections, Florida now moves to amend its complaint to

narrow its request for preclearance to the non-enjoined changes.

Included with this motion are: (1) a memorandum of points and authorities in

support of the motion; (2) exhibits supporting the motion; (3) a copy of the proposed

Third Amended Complaint; and (4) a redline showing the differences between the Third

Amended Complaint and the Second Amended Complaint. Pursuant to Local Rule 7(m),

the State of Florida has conferred with all Defendants. Defendant and Defendant-

Intervenors have informed Florida that they will respond to this Motion in accordance

with the schedule established by the Court. See Doc. 120.

For the reasons explained in the attached memorandum of points and authorities,

the State of Florida respectfully requests that this Court grant the motion.

Respectfully submitted,

Daniel E. Nordby Ashley E. Davis FLORIDA DEPARTMENT OF STATE R.A. Gray Building 500 S. Bronough Street Tallahassee, FL 32399-0250 Tel: 850-245-6536 Dated: August 10, 2012

/s/ William S. Consovoy William S. Consovoy* (D.C. Bar 493423) Brendan J. Morrissey (D.C. Bar 973809) J. Michael Connolly (D.C. Bar 995815) WILEY REIN LLP 1776 K Street, NW Washington, DC 20006 Tel.: (202) 719-7000 Fax: (202) 719-7049 * Counsel of Record

Case 1:11-cv-01428-CKK-MG-ESH Document 143 Filed 08/10/12 of 2

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STATE OF FLORIDA,

Plaintiff,


Defendants,

v. KENNETH SULLIVAN, et. al.,

Defendant-Intervenors


MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION FOR LEAVE TO AMEND THE COMPLAINT

Pursuant to this Court’s Scheduling Order (Doc. 120), Fed. R. Civ. P. 15, and

Local Rule 7, the State of Florida submits the following Memorandum of Points and

Authorities in Support of its Motion for Leave to Amend the Complaint. Although

Florida originally sought preclearance for all of the changes to Fla. Stat. § 97.0575 and

Rule 1S-2.042 (collectively, the “Third Party Changes”), see Doc. 54, certain provisions

were preliminarily enjoined by Judge Hinkle in the Northern District of Florida. As fully

explained below, Florida has now obtained clarification of the scope of that injunction,

asked Judge Hinkle to make the injunction permanent, begun implementing the terms of

the injunction through rulemaking, and withdrawn its appeal.

Case 1:11-cv-01428-CKK-MG-ESH Document 143-1 Filed 08/10/12 Page 1 of 42

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Accordingly, as these provisions will be permanently enjoined and will never be in

force or effect, Florida moves to amend its complaint to narrow its preclearance request

to the non-enjoined changes to Fla. Stat. § 97.0575 and Emergency Rule 1SER12-01,

which is the administrative rule that modifies Rule 1S-2.042 to conform with Judge

Hinkle’s injunction. Because the proposed amended complaint will advance the interest

in judicial economy and allow for the prompt resolution of Florida’s preclearance request

in advance of the November 2012 elections, this Court should grant Florida’s motion to

amend the complaint.

I. BACKGROUND

On May 19, 2011, Committee Substitute for Committee Substitute for House Bill

No. 1355, an omnibus bill revising the Florida Election Code, became law. FF ¶ 21.

Among other things, HB 1355 made changes to Fla. Stat. § 97.0575, which governs third-

party voter registration organizations. FF ¶¶ 28-29. After the Act was signed into law, the

Florida Department of State adopted Florida Administrative Code Rule 1S-2.042 (“Rule

1S-2.042”). FF ¶ 22. Rule 1S-2.042 implemented the changes made by HB 1355 to Fla.

Stat. § 97.0575. FF ¶ 22. In so doing, it modified the prior version of Rule 1S-2.042,

which had implemented the legal regime governing third-party registration organizations

under the previous version of Fla. Stat. § 97.0575. FF ¶ 22. On October 25, 2011, Florida

filed its Second Amended Complaint seeking preclearance on behalf of its five covered

counties for the changes to Fla. Stat. § 97.0575 and Rule 1S-2.042. See Doc. 54.

After Florida filed its complaint, a group of plaintiffs sought a preliminary

injunction to enjoin certain provisions of the Third Party Changes. See League of Women


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Voters of Florida v. Browning, No. 11-cv-628 (N.D. Fla.). On May 31, 2012, District

Judge Robert Hinkle granted in part and denied in part the plaintiffs’ motion and

preliminarily enjoined certain provisions of Fla. Stat. § 97.0575 and Rule 1S-2.042. See

id. (Doc. 58). On June 5, 2012, this Court asked the parties to identify their positions on

the effect of Judge Hinkle’s order on the preclearance requests in this case. Doc. 106 at 1.

Florida informed the Court that given “its strong desire to have this matter resolved in

advance of the November 2012 election . . . Florida will no longer seek in this action to

preclear the Third Party Changes that Judge Hinkle preliminarily enjoined.” Doc. 109 at

2. Florida also explained that it needed minor clarification regarding the scope of Judge

Hinkle’s preliminary injunction. Doc. 109 at 3 n.2.

In response to Florida’s notification, this Court ordered the United States to

“indicate whether it is able to grant administrative preclearance to the Third Party

Changes that were not preliminarily enjoined” by Judge Hinkle. Minute Order (June 13,

2012). The United States informed the Court that it could not at that time review the

request because the scope of Judge Hinkle’s order was not precisely clear, but that if

these questions were resolved and Florida abandoned the enjoined changes then the

Attorney General “would make his best efforts to expeditiously review such an

administrative submission within two weeks of receipt of the complete submission.” Doc.

113 at 5 (emphasis added). On June 22, 2012, this Court instructed Florida to “file its

motion to partially dismiss and/or to amend its complaint, . . . thereby withdrawing its

preclearance request regarding the third-party voter registration organization changes that

were preliminarily enjoined . . . by the end of the next business day after receiving any


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necessary clarification regarding the scope of Judge Hinkle’s order.” Doc. 120 at 1. On

July 3, 2012, Florida informed the Court that although it had filed a notice of appeal, the

parties had reached a settlement agreement in principle and Florida would file a motion to

dismiss and/or amend the complaint after a final settlement agreement was reached and

the necessary clarification was obtained. Doc. 132 at 1-2.

On August 7, 2012 the Florida Department of State noticed an emergency rule that

modified Rule 1S-2.042 to conform to the terms of Judge Hinkle’s preliminary injunction

(“Emergency Rule 1SER12-01”).1 See Exhibit A. Emergency Rule 1SER12-01 will take

effect on August 15, 2012.2 See Emergency Rule 1SER12-01(9). The Florida Department

of State also submitted a proposed rule identical to Emergency Rule 1SER12-01 for

publication in the Florida Administrative Weekly and adoption as a final rule according

1 In addition to implementing Judge Hinkle’s preliminary injunction, Emergency Rule 1SER12-01 makes two minor (and ameliorative) changes to Rule 1S-2.042 to address concerns raised both in this case and in Browning. First, if a third-party voter registration organization demonstrates that the failure to timely deliver a voter registration application was the result of force majeure or impossibility of performance, the Secretary “will not refer the violation to the Attorney General for enforcement.” Emergency Rule 1SER12-01(5)(c) (emphasis added); see Oral Arg. Tr. at 182-88 (questioning “whether the State would be required to implement the force majeure exception”). Second, if an untimely voter registration application contains a third-party voter registration identifying number—but no other information indicating it was collected by a third-party voter registration organization—the Secretary “will not refer a violation to the Attorney General unless there is evidence that the applicant entrusted the voter registration application to a third-party voter registration organization.” Emergency Rule 1SER12-01(8)(d); see Oral Arg. Tr. at 195-96 (arguing that voter registration applications are “prelabeled as being for that third party registration organization. . . . [but if the organization] hand[s] it to [a] person, that person then signs it and then turns it in 11 days later, that will be recorded as if [the organization] turned the registration form in after the fact”). 2 Florida’s five Covered Counties, of course, will not implement the changes set forth in Emergency Rule 1SER12-01 until they have received preclearance.


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to the rulemaking process set forth in Fla. Stat. § 120.54 (“Final Rule 1S-2.042”). See

Exhibit B.

On August 10, 2012, the parties filed a joint motion for a permanent injunction

with Judge Hinkle in the Northern District of Florida. See Exhibit C. The parties

informed the court that they had resolved their dispute and they asked the court to convert

its preliminary injunction to a permanent injunction. Contemporaneously, the Florida

Department of State filed an unopposed motion to voluntarily dismiss its appeal in the

Eleventh Circuit, in accordance with the local rules. See Exhibit D. Finally, on August

13, 2012, Florida anticipates that it will submit a request for administrative preclearance

of the non-enjoined changes to Fla. Stat. § 97.0575 and Emergency Rule 1SER12-01 to

the Department of Justice.3 Pursuant to this Court’s order (Doc. 120), and in light of the

joint motion submitted by the parties in the Browning litigation, Florida has now received

the “necessary clarification regarding the scope of Judge Hinkle’s order” and hereby

submits this motion to amend its complaint in order to seek preclearance of the non-

enjoined changes to Fla. Stat. § 97.0575 and Emergency Rule 1SER12-01.4

3 Per its representations to this Court, the Department of Justice will presumably make its best efforts to review Florida’s request by August 27, 2012, which is fourteen days after Florida will submit its request. See Doc. 113 at 5. 4 Florida will submit a notice to this Court once Judge Hinkle ratifies the joint motion for entry of a permanent injunction. Because the parties to the Browning litigation are in agreement concerning the scope of the injunction (and the Florida Department of State has since issued an Emergency Rule to implement that agreed-upon understanding), Florida believed that promptly filing its motion to amend the complaint was the most prudent course given the need to resolve this case in advance of the November 2012 elections.


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II. ARGUMENT

Under the Federal Rules, “[t]he court should freely give leave [to amend] when

justice so requires.” Fed. R. Civ. P. 15(a)(2). Because of this liberal standard, “a refusal

to allow amendment must be justified by a sufficiently compelling reason, such as undue

delay, prejudice to the non-moving party, bad faith, dilatory motive, repeated failure to

cure deficiencies by previous amendments, or futility of amendment.” Patton Boggs, LLP

v. Chevron Corp., 791 F. Supp. 2d 13, 19 (D.D.C. 2011) (citing Firestone v. Firestone,

76 F.3d 1205, 1208 (D.C. Cir. 1996)). “The party opposing amendment has the burden of

establishing that it would be improper.” Id.

Florida’s motion to amend its complaint is entirely proper and is warranted under

the circumstances presented here. As it stands, Florida’s Second Amended Complaint

seeks preclearance of all the changes to Fla. Stat. § 97.0575 and the prior version of Rule

1S-2.042. Yet some of these provisions will be permanently enjoined, and Emergency

Rule 1SER12-01, which modifies Rule 1S-2.042 to conform to the terms of the

preliminary injunction, has been noticed and will take effect on August 15, 2012. There is

no basis for a preclearance decision concerning statutory and administrative provisions

that will never be in force or effect in the Covered Counties and which Florida and its

Covered Counties do not seek to administer. 42 U.S.C. § 1973c (allowing a covered

jurisdiction to seek preclearance “[w]henever” it “shall enact or seek to administer” a

voting change); Branch v. Smith, 538 U.S. 254, 265 (2003) (concluding that Mississippi

was no longer “seek[ing] to administer” a voting change that was subject to a federal

injunction that the State was not challenging). This case confirms the reasoning of


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Branch: it would be unwise (and likely improper) for a Court to decide whether changes

will “have the effect of denying or abridging the right to vote on account of race, color, or

[membership in a language minority group]” when they will never take effect.

Although Defendants have previously argued that the enjoined changes are

“related” to the non-enjoined changes such that they must be reviewed together, see Doc.

113 at 3-4, this argument has no merit. As an initial matter, it has been overtaken by

events. Because the changes that Florida seeks to withdraw from this litigation will now

be permanently enjoined, they are not “related” to anything. For purposes of this case, it

is as if they were never enacted in the first place. Thus, any reliance on the unpublished

order in Pleasant Grove v. United States, No. 80-2589 (D.D.C. Oct. 7, 1981) (reprinted at

Doc. 130-1) would be misplaced. See Oral Argument Transcript at 173-75 (D.D.C. June

22, 2012). Relying on precedent that “several annexations are to be considered as ‘a

single and unified whole,’” id. at 2 (quoting City of Rome v. United States, 472 F. Supp.

221, 247 (D.D.C. 1979)), the district court in Pleasant Grove ordered that all of the city’s

annexations needed to be reviewed together. Id. at 3. This case is obviously different in

light of the permanent injunction. Any “single and unified whole” argument that

Defendants might have raised is now moot.5

5 In Pleasant Grove, the district court also learned that for more than ten years the City of Pleasant Grove had been administering an annexation that had never received preclearance. Pleasant Grove at 1. In the court’s view, allowing the city to preclear the recent change without also submitting the prior annexation would “completely contradict the purpose of the Voting Rights Act.” Id. Here, however Florida has not engaged in gamesmanship in an attempt to obtain preclearance in a piecemeal fashion. Florida originally sought preclearance for all the Third Party Changes—before implementing


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In any event, the “related” changes argument is incorrect for another reason: the

non-enjoined changes are clearly independent and severable. Because the Court is

reviewing a Florida statute, “[s]everability is of course a matter of state law.” Leavitt v.

Jane L., 518 U.S. 137, 139 (1996). Under Florida law, “[t]he important factor to be

considered when determining whether valid and invalid provisions are separable and

essential is legislative intent.” State v. Tirohn, 556 So.2d 447, 449 (Fla. 5th DCA 1990)

(citing Limpus v. Newell, 85 So.2d 124 (Fla. 1956)). “When a severability clause is

included in the statute . . . the expressed legislative intent in this respect should be carried

out unless to do so would produce an unreasonable, unconstitutional or absurd result.”

Small v. Sun Oil Co., 222 So.2d 196, 199-200 (Fla. 1969) (citing Louis K. Liggit Co. v.

Lee, 1933, 109 Fla. 477, 149 So. 8, 9 (1933)). The Florida Legislature included a

severability clause in the Act. Florida Laws 2011, ch. 2011-40, § 79 (eff. May 19, 2011)

(“If any provision of this act or its application to any person or circumstance is held

invalid, the invalidity does not affect other provisions or applications of the act which can

be given effect without the invalid provision or application, and to this end the provisions

of this act are severable.”).

Accordingly, there is no basis to judicially negate the legislature’s intent in this

instance. Indeed, the parties in Browning explicitly agreed that “[t]his injunction does not

affect any other portion of Florida Statutes § 97.0575 or Florida Administrative Code

Rule 1S-2.042.” Exhibit C. Unlike a preclearance request of multiple annexations, then,

them in the Covered Counties—and it has only narrowed its request because of Judge Hinkle’s preliminary injunction.


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which arguably do need to be reviewed as a whole to understand their full effect, the non-

enjoined changes are severable, they are fully capable of being evaluated independently,

and the enjoined changes will never be in force or effect. See supra. There is simply no

reason for this Court to review the enjoined changes.

Finally, Defendants will not be prejudiced in any way by Florida’s motion to

amend the complaint. There is no possibility of Florida reversing its stance and seeking

preclearance at a later date, as Florida has withdrawn its appeal and these provisions will

be permanently enjoined. Thus, any concern that Defendants will be forced to recreate

this record in a future case is moot as well.

At bottom, Florida’s motion should be entirely unobjectionable as it withdraws

changes that will never take effect in the Covered Counties and streamlines this Court’s

review of Florida’s remaining claims. If the Court grants the motion, the parties will

submit supplemental briefing on whether the non-enjoined changes are entitled to

preclearance and the case will then be ready for decision. See Doc. 120 at 2.6 But if the

Court denies Florida’s motion, the Court would decide whether all of the Third Party

Changes are entitled to preclearance—an issue that has been thoroughly briefed and

6 This issue could also be moot if the United States grants administrative preclearance. See supra n.3. Indeed, there is every reason to believe that the non-enjoined changes will be granted preclearance as they are entirely unobjectionable. Third-party voter registration groups have resumed activities in the State and there is no evidence any of these changes will burden their ability to register voters, see id. Indeed, Defendants’ briefing dealt entirely with provisions that have been enjoined. See Doc. 109 at 7. And the few concerns raised by Defendants at oral argument regarding the non-enjoined changes have been addressed by Emergency Order 1SER12-01. See supra n.1. These changes are unquestionably entitled to preclearance.


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argued by the parties. In either case, once the Court acts on this motion, there should be

no impediment to resolution of Florida’s claims.

III. CONCLUSION

For the foregoing reasons, Florida respectfully requests that the Court grant its

motion to amend the complaint.


Daniel E. Nordby Ashley E. Davis FLORIDA DEPARTMENT OF STATE R.A. Gray Building 500 S. Bronough Street Tallahassee, FL 32399-0250 Tel: 850-245-6536 Dated: August 10, 2012

/s/ William S. Consovoy William S. Consovoy* (D.C. Bar 493423) Brendan J. Morrissey (D.C. Bar 973809) J. Michael Connolly (D.C. Bar 995815) WILEY REIN LLP 1776 K Street, NW Washington, DC 20006 Tel.: (202) 719-7000 Fax: (202) 719-7049 * Counsel of Record


Exhibit A


Notice of Emergency Rule

DEPARTMENT OF STATE

Division of Elections

RULE NO.: RULE TITLE:

1SER12-01: Third-Party Voter Registration Organizations

SPECIFIC REASONS FOR FINDING AN IMMEDIATE DANGER TO THE PUBLIC HEALTH, SAFETY OR

WELFARE: Pursuant to section 120.54(4)(b), Florida Statutes, this emergency rule is a rule pertaining to the public

health, safety, and welfare as it involves the interpretation and implementation of the requirements of chapters 97-

102 and 105 of the Florida Election Code. A federal court preliminarily enjoined certain aspects of section 97.0575,

Florida Statutes, concerning third-party voter registration organizations. While regular rulemaking will soon occur

for Rule 1S-2.042, this emergency rule is necessary to implement the provisions of the court’s ruling in a timely

manner. The emergency rule removes those procedures that have been enjoined and makes additional clarifications

to conform the rule to the court’s decision. The emergency rule will provide third-party voter registration

organizations and supervisors of elections the direction they need until Rule 1S-2.042 can complete its normal

rulemaking cycle.

REASON FOR CONCLUDING THAT THE PROCEDURE IS FAIR UNDER THE CIRCUMSTANCES: The

Division of Elections is aware of the rulemaking procedures prescribed by Section 120.54, Florida Statutes. That

process requires advance notice to the public of intended rules and the opportunity to submit comments on the

intended rule, prior to the agency’s adoption of the rule. The time period for general rulemaking takes at least 60

days and will prevent the timely amendment and adoption of a rule needed to apply to ongoing registration activities

conducted by third-party voter registrations organizations. In the interim, the provisions of this emergency rule will

ensure that organizations and supervisors of elections will be able to comply with the requirements of law based

upon a federal court ruling preliminarily enjoining certain provisions of Section 97.0575, Florida Statutes. The

Department of State will soon file a notice of proposed rule development for Rule 1S-2.042 with the intent to

incorporate the text of this emergency rule through regular rulemaking.

SUMMARY: This emergency rule revises the procedures used by third-party voter registration organizations to

align them a preliminary injunction issued by a federal court. It restricts the registration requirement to only those

organizations who actually collect voter registration applications from voters; eliminates the organization’s

registration agent sworn statement form, DS-DE 120; deletes the requirement for an organization to list its volunteer

registration agents on the registration form, DS-DE 119; deletes the requirement for an organization to file a

monthly report, DS-DE 123, accounting for voter registration applications; changes the time period from 48 hours to

10 days for the organization to deliver a completed voter registration application to the Division or to a supervisor of

elections' office after an applicant delivers the application to the organization; and further refines the procedures for

supervisors of elections regarding untimely filed voter registration applications and the procedures for the Secretary

of State’s referral of a violation to Florida’s Attorney General. The emergency rule is necessary to ensure that third-

party voter registration organizations and supervisors of elections have the necessary guidance to comply with the

preliminary injunction issued by the U.S. District Court.

THE PERSON TO BE CONTACTED REGARDING THE EMERGENCY RULE IS: Gary J. Holland, Assistant

General Counsel, Florida Department of State, 500 S. Bronough Street, Tallahassee, Florida 32399;

[email protected]; 850-245-6536

THE FULL TEXT OF THE EMERGENCY RULE IS:


https://www.flrules.org/gateway/department.asp?id=1

https://www.flrules.org/gateway/organization.asp?id=16

https://www.flrules.org/gateway/ruleNo.asp?id=1SER12-01

1SER12-01 (1S-2.042) Third-Party Voter Registration Organizations.

(1) Forms. The following forms are hereby incorporated by reference and available from the Division of

Elections, R. A. Gray Building, Room 316, 500 South Bronough Street, Tallahassee, Florida 32399-0250, by contact

at (850)245-6200, or by download from the Division’s webpage at: http://election.myflorida.com/forms/index.shtml:

(a) Form DS-DE 119 (eff. 08/2012 06/2011), (http://www.flrules.org/Gateway/reference.asp?No=Ref-00428),

entitled “Third-Party Voter Registration Organization Registration Form.”

(b) Form DS-DE 120 (eff. 06/2011), (http://www.flrules.org/Gateway/reference.asp?No=Ref-00429), entitled

“Third-Party Voter Registration Organization Registration Agent’s Sworn Statement.”

(b)(c) Form DS-DE 121 (eff. 06/2011), (http://www.flrules.org/Gateway/reference.asp?No=Ref-00430), entitled

“Form for Complaint Against Third-Party Voter Registration Organization.”

(d) Form DS-DE 123 (eff. 06/2011) (http://www.flrules.org/Gateway/reference.asp?No=Ref-00431), entitled

“Third-Party Voter Registration Organization’s Accounting of Voter Registration Applications.”

(c)(e) Form DS-DE 124 (eff. 06/2011) (http://www.flrules.org/Gateway/reference.asp?No=Ref-00608), entitled

“Supervisor of Elections’ Accounting of Third-Party Voter Registration Organization’s Voter Registration

Applications.”

(2) Definitions. For purposes of Section 97.0575, F.S., the following definitions apply:

(a) “Affiliate organization” of a third-party voter registration organization means any person, as defined in

Section 1.01(3), F.S., that is associated with the third-party voter registration organization as a subordinate,

subsidiary, member, branch, chapter, as a central or parent organization, or through direct or indirect ownership or

control. Ownership or control means substantial and effective, though not necessarily predominant, ownership or

control.

(b) “Engaging in any voter registration activities” means that the organization is soliciting for collection or

collecting voter registration applications from Florida voter registration applicants.

(c) “Force majeure” means any event or occurrence of societal significance beyond the reasonable control and

without the fault of the third-party voter registration organization which could not have been prevented, avoided, or

overcome by the exercise of reasonable care, diligence, or foresight of the third-party voter registration organization,

including, but not limited to, civil disturbances or acts of war; extraordinarily severe weather, such as hurricanes,

floods, or tornadoes; or shortages of food, electric power, or fuel.

(d) “Impossibility of performance” means an actual impossibility or impracticability of compliance as the result

of a condition or circumstance which the third-party voter registration organization did not create and could not

reasonably have anticipated.

(e) “Registration agent” means any individual who is employed by or volunteers for a third-party voter

registration organization and who solicits for collection or who collects voter registration applications from Florida

voter registration applicants on behalf of the organization.

(3) Registration.

(a) Before engaging in any voter registration activities, a third-party voter registration organization (hereinafter

“organization”) shall complete and file Form DS-DE 119 with the Division. The organization must submit the form

as an attachment in pdf format in an email to [email protected] or transmit the form to the Division’s

facsimile machine at (850)245-6291. An affiliate organization which itself independently engages in separate

solicits for collection of or collects voter registration applications from Florida voter registration applicants on

behalf of the affiliate must file a Form DS-DE 119 even if its affiliated organization has filed a Form DS-DE 119.

An organization shall also use Form DS-DE 119 to update or terminate its registration.

(b) Upon receipt of an organization’s initial and completed registration, the Division shall assign the

organization a unique third-party voter registration organization identification number that begins with “3P.” An

organization is not deemed registered as a third-party voter registration organization until the Division issues the

organization its identification number.

(c) A registration agent must complete, sign, and date Form DS-DE 120 before beginning his or her duties for

the organization and the organization must ensure the form is submitted to the Division within 10 days after the form

is signed. Form DS-DE 120 may be submitted to the Division when the organization submits its initial Form DS-DE

119. For any addition to the list of its registration agents or change in information about a registration agent other


http://www.flrules.org/Gateway/reference.asp?No=Ref-00428













than termination of a registration agent, the organization shall submit an updated Form DS-DE 119. For permissible

means of notifying the Division of the termination of a registration agent, See paragraph (6)(b).

(c)(d) A registration agent may be a registration agent for one or more organizations, but each organization must

ensure that the registration agent submits a separate Form DS-DE 120 for its organization.

(d)(e) An organization shall submit any change in information previously submitted to the Division, including

any addition to the list of its employee registration agents, any termination of an employee registration agent, or

change in information about an employee registration agent, within 10 days following the change. A change is not

considered filed until the Division receives the change. Notice of termination of an employee registration agent shall

be provided as set forth in paragraph (6)(b).

(e)(f) Except as otherwise provided in paragraph (6)(b), any forms or amendments or additions to forms

required under this subsection must be submitted in the same manner of transmission required for the Form DS-DE

119 used to initially register an organization.

(4) Voter Registration Applications Provided to and Used by Third-Party Voter Registration Organizations.

(a) All voter registration applications provided by the Division and each supervisor of elections to an

organization shall include the third-party voter registration organization identification number on the bottom of the

reverse side of each voter registration application in a manner that does not obscure any other entry.

(b) The registration agent or the organization shall print the date and time that the voter registration applicant

delivered completed the application to the registration agent in a conspicuous space on the bottom portion of the

reverse side of the voter registration application it collects from a voter registration applicant in a manner that does

not obscure any other entry. The date and time printed by the registration agent or the organization shall be in the

following numerical format: MM/DD/YY; hh:mm am/pm. For example, if the voter registration applicant completed

the application on May 15, 2014 at 1:30 p.m., the entry on the bottom portion of the reverse side of the application

shall be: 5/15/14; 1:30pm. The entry for an application completed on October 11, 2014 at 11:30 a.m., would be

printed as 10/11/14; 11:30am on the bottom portion of the reverse side of the application.

(c) Each organization shall ensure that its assigned organization identification number is recorded on the bottom

portion of the reverse side of any voter registration application it delivers to the Division or a supervisor of elections

in a manner that does not obscure any other entry.

(d) Delivery of the voter registration application by the organization to the Division or a supervisor of elections

may be accomplished by in-person delivery or mail. All applications must be delivered to the Division or a

supervisor of elections or be postmarked within 10 calendar days of collection by an organization or any of its

registration agents. If the 10th

day falls on a weekend, holiday, or other day on which the Division or the supervisor

of elections office is closed, the voter registration application must be delivered to the Division or the supervisor of

elections or be postmarked by the following business day. If, however, a book closing deadline for any given

election for federal or state office falls within the 10-day period described above, all applications collected by an

organization or any of its registration agents before book closing must be delivered to the Division or a supervisor of

elections on or before the book closing deadline.

(5) Referral to Attorney General for Enforcement; Waiver of Fines upon Showing of Force Majeure or

Impossibility of Performance Monthly Report by Organizations.

(a) In exercising the authority to refer violations of the third-party voter registration law to the Attorney General

for enforcement, the Secretary of State’s principal concern is the protection of applicants who have entrusted their

voter registration applications to a third-party voter registration organization. By law, the organization serves as a

fiduciary to those applicants, who have a right to expect that their applications will be timely delivered to an

elections official irrespective of party affiliation, race, ethnicity, or gender By the 10th day of each month, each

organization shall submit to the Division a Form DS-DE 123 to account for the number of state and federal voter

registration application forms provided to and received from each of its registration agents for the preceding month.

If the organization had no voter registration activity in the preceding month, the organization shall still submit Form

DS-DE 123 reflecting that it did not provide voter registration applications to, or receive any from, its registration

agents.

(b) Any organization claiming that its failure to deliver a voter registration application within the required

timeframe was based upon force majeure or impossibility of performance may provide a sworn statement to the

Division explaining the circumstances constituting force majeure or impossibility of performance Form DS-DE 123

required under this subsection must be submitted as an attachment in pdf format in an email to

[email protected] or transmitted to the Division’s facsimile machine at (850)245-6291.









(c) If the information provided to the Division by the organization demonstrates that the failure to timely deliver

a voter registration application was the result of force majeure or impossibility of performance, the Secretary of

State will not refer the violation to the Attorney General for enforcement.

(6) Termination of Organization and Employee Registration Agent.

(a) If an organization terminates its status as a third-party voter registration organization, the organization shall

submit within 10 days a Form DS-DE 119 reflecting its termination and also a Form DS-DE 123 to report its final

accounting of voter registration application forms provided to the organization by the Division or any supervisor of

elections. All such voter registration applications remaining in the organization’s possession should be returned

either to the Division or a supervisor of elections within 10 days of filing Form DS-DE 123. The address for the

Division is Bureau of Voter Registration Services, Division of Elections, R. A. Gray Building, Room 316,

Tallahassee, Florida 32399-0250. The address for the applicable supervisor of elections may be obtained by

telephoning 850-245-6200 or found on the Internet at http://election.dos.state.fl.us/SOE/supervisor_elections.shtml.

(b) If an employee registration agent’s employment with, or volunteer services for, an organization is

terminated, the organization shall file notice of the terminated status of a the employee registration agent by

submitting an updated Form DS-DE 119 or by sending a notification of the termination by email to

[email protected] or by transmitting the notification to the Division’s facsimile machine at (850)245-

6291 within 10 days of the termination. If Form DS-DE 119 is not used as the means of notification, the notification

shall contain the organization’s assigned identification number and the name of the employee registration agent

being terminated.

(c) Forms DS-DE 119 and DS-DE 123 required under this subsection must be submitted as an attachment in pdf

format in an email to [email protected] or transmitted to the Division’s facsimile machine at (850)245-

6291.

(7) Processing of Voter Registration Applications from an Organization by the Division and Supervisors of

Elections.

(a) For each non-blank registration application that an organization delivers to the Division or supervisor of

elections, a voter registration official shall record the date and time of delivery on the bottom portion of the reverse

side of the application in a manner that does not obscure any other entries. For purposes of this rule and not for voter

registration purposes, an application is considered delivered to the Division or a supervisor of elections at the time

the application is actually delivered by the organization by in-person delivery or, if mailed, the date of delivery shall

be the date of a clear postmark, if one is present on the mailing envelope. If a postmark is not present or unclear, the

date of delivery to the Division or a supervisor of elections is the actual date of receipt. If the date of delivery is the

mail postmark, the applicable 48-hour period for the determination of fines pursuant to Section 97.0575, F.S., shall

be based upon a whether the postmark is within two days of the date when the applicant completed the voter

registration application, unless the organization provides documentation at the time of mailing the application that

the date the applicant completed the application was on an earlier date than when the applicant delivered the

application to the organization. For a determination of a fine based upon the application being received by mail after

the book closing date, a clear postmark on or before the date of book closing will excuse the fine. If an organization

delivers more than one application at the same time, those applications shall bear the same date and time of delivery

regardless of when the applications are processed.

(b) An organization’s untimely delivery of a voter registration application does not affect the validity of the

application. Every Such application must be processed regardless of the timeliness of its delivery.

(c) The Division and supervisors of elections shall record the number of state or federal voter registration

applications they provide to, and receive from, each organization. Each supervisor of elections shall report to the

Division on Form DS-DE 124 by noon of the following business day the number of voter registration applications

provided to and received from each organization the previous business day. Supervisors of Elections are not required

to submit Form DS-DE 124 when they did not provide any voter registration applications to, or receive any from, an

organization on the preceding business day.

(d) Form DS-DE 124 required under this subsection must be submitted as an attachment in pdf format in an

email to [email protected] or transmitted to the Division’s facsimile machine at (850)245-6291.

(8) Complaints.

(a) Any person claiming to have provided a completed voter registration application to a third-party voter

registration organization but whose name does not appear as an active voter on the voter registration rolls shall use

Form DS-DE 121 to file the complaint with the Division.












(b) Any other person, except supervisors of elections or their staff, may report allegations of irregularities or

fraud involving voter registration by filing an elections fraud complaint with the Division. See Rule 1S-2.025,

F.A.C.

(c) Supervisors of elections or their staff shall report any untimely filed voter registration application submitted

by an organization by sending the Division an explanatory statement in an email and attaching documents which

reflect the untimely submission in pdf format to [email protected], or by transmitting the explanatory

statement and documentation to the Division’s facsimile machine at (850)245-6291, or by having them delivered by

express mail or expedited courier service. For any application containing an organization’s identification number --

but no other information indicating it was collected by a third-party voter registration organization, such as a cover

letter or a “date delivered” mark as required by paragraph (4)(b) and that was received after the book closing date or

more than 10 days after the date on which the applicant signed it -- the explanatory statement should include a

description of the supervisor’s efforts to contact the applicant to confirm that the application was delivered to the

organization.

(d) The Secretary of State will not refer a violation to the Attorney General unless there is evidence that the

applicant entrusted the voter registration application to a third-party voter registration organization.

(9) Effective Date. This rule is effective on August 15, 2012.

Rulemaking Authority 20.10(3), 97.012(1), (2), (15), 97.0575(1), (2), (5) FS. Law Implemented 97.012(1), (2), (15), 97.021(37),

97.053, 97.0575 FS. History–New 2-26-09, Amended 5-31-10, 11-2-11, 8-15-12.

THIS RULE TAKES EFFECT UPON BEING FILED WITH THE DEPARTMENT OF STATE UNLESS A

LATER TIME AND DATE IS SPECIFIED IN THE RULE.

EFFECTIVE DATE: August 15, 2012


Exhibit B


Notice of Development of Rulemaking

DEPARTMENT OF STATE Division of Elections RULE NO.: RULE TITLE: 1S-2.042: Third-Party Voter Registration Organizations

PURPOSE AND EFFECT: The primary purpose is to conform the rule to an injunction granted by a federal court. The revisions have the effect of removing those provisions have been enjoined and they make additional clarifications to conform the rule to the court’s decision. The rule will provide third-party voter registration organizations and supervisors of elections the direction they need to comply with applicable law. SUBJECT AREA TO BE ADDRESSED: Third-party voter registration organizations. RULEMAKING AUTHORITY: 20.10(3), 97.012(1), (2), (15), 97.0575(1), (2), (5) FS. LAW IMPLEMENTED: 97.012(1), (2), (15), 97.021 (37), 97.053, 97.0575 FS. IF REQUESTED IN WRITING AND NOT DEEMED UNNECESSARY BY THE AGENCY HEAD, A RULE DEVELOPMENT WORKSHOP WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW: DATE AND TIME: September 4, 2012; 10am. PLACE: Department of State, Room 307, R.A. Gray Building, 500 S. Bronough Street, Tallahassee, Florida. Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special

accommodations to participate in this workshop/meeting is asked to advise the agency at least 5 days before the workshop/meeting by contacting: Gary J. Holland, Assistant General Counsel, Office of General Counsel, Department of State, R. A. Gray Building, 500 S. Bronough Street, Tallahassee, FL 32399-0250; telephone: (850)245-6536; e-mail: [email protected]. If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770 (Voice). THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE DEVELOPMENT AND A COPY OF THE PRELIMINARY DRAFT, IF AVAILABLE, IS: Gary J. Holland, Assistant General Counsel, Office of General Counsel, Department of State, R. A. Gray Building, 500 S. Bronough Street, Tallahassee, FL 32399-0250; telephone: (850)245-6536; e-mail: [email protected]. THE PRELIMINARY TEXT OF THE PROPOSED RULE DEVELOPMENT IS:

1S-2.042 Third-Party Voter Registration Organizations.




(a) Form DS-DE 119 (eff. 09/2012 06/2011), (http://www.flrules.org/Gateway/reference.asp?No=Ref-00428), entitled

“Third-Party Voter Registration Organization Registration Form.”

(b) Form DS-DE 120 (eff. 06/2011), (http://www.flrules.org/Gateway/reference.asp?No=Ref-00429), entitled “Third-

Party Voter Registration Organization Registration Agent’s Sworn Statement.”

(b)(c) Form DS-DE 121 (eff. 06/2011), (http://www.flrules.org/Gateway/reference.asp?No=Ref-00430), entitled “Form

for Complaint Against Third-Party Voter Registration Organization.”

(d) Form DS-DE 123 (eff. 06/2011) (http://www.flrules.org/Gateway/reference.asp?No=Ref-00431), entitled “Third-

Party Voter Registration Organization’s Accounting of Voter Registration Applications.”



Applications.”






control.











https://www.flrules.org/gateway/ruleNo.asp?id=1S-2.042

https://www.flrules.org/gateway/statute.asp?id=20.10(3)

https://www.flrules.org/gateway/statute.asp?id=%2097.012(1)



https://www.flrules.org/gateway/statute.asp?id=%2097.021%20(37)

https://www.flrules.org/gateway/statute.asp?id=%2097.053

https://www.flrules.org/gateway/statute.asp?id=%2097.0575%20FS.












(3) Registration.


“organization”) shall complete and file Form DS-DE 119 with the Division. The organization must submit the form as

an attachment in pdf format in an email to [email protected] or transmit the form to the Division’s



behalf of the affiliate must file a Form DS-DE 119 even if its affiliated organization has filed a Form DS-DE 119. An

organization shall also use Form DS-DE 119 to update or terminate its registration.





(c) A registration agent must complete, sign, and date Form DS-DE 120 before beginning his or her duties for the

organization and the organization must ensure the form is submitted to the Division within 10 days after the form is

signed. Form DS-DE 120 may be submitted to the Division when the organization submits its initial Form DS-DE 119.

For any addition to the list of its registration agents or change in information about a registration agent other than

termination of a registration agent, the organization shall submit an updated Form DS-DE 119. For permissible means

of notifying the Division of the termination of a registration agent, See paragraph (6)(b).



























































agents.
























being terminated.



6291.


Elections.



































(d) Form DS-DE 124 required under this subsection must be submitted as an attachment in pdf format in an email

to [email protected] or transmitted to the Division’s facsimile machine at (850)245-6291.

(8) Complaints.






F.A.C.










organization.




97.053, 97.0575 FS. History–New 2-26-09, Amended 5-31-10, 11-2-11, _______.





Exhibit C


IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

LEAGUE OF WOMEN VOTERS OF FLORIDA, FLORIDA PUBLIC INTEREST RESEARCH GROUP EDUCATION FUND, and ROCK THE VOTE,

Civil No. 4:11-CV-628-RH-WCS

Plaintiffs,

v.

KENNETH W. DETZNER, in his official capacity as Secretary of State for the State of Florida, PAMELA J. BONDI, in her official capacity as Attorney General for the State of Florida, and GISELA SALAS, in her official capacity as Director of the Division of Elections within the Department of State for the State of Florida,

Defendants.

JOINT MOTION FOR PERMANENT INJUNCTION

The Parties jointly move for entry of a permanent injunction as set forth herein.

The Motion is unopposed and the Parties stipulate as follows.

BACKGROUND

1. On December 15, 2011, Plaintiffs filed a complaint seeking an order and

judgment declaring unconstitutional and illegal certain provisions of Florida Statutes §

97.0575 and Florida Administrative Code Rule 1S-2.042, as the statute was amended on

May 19, 2011, and as the rule was amended on November 2, 20111 (collectively, the

“third-party voter registration law”), and enjoining Defendants from implementing these

1 Unless otherwise specified, all references to the statute and rule in this Motion are to the versions as amended in 2011.

Case 4:11-cv-00628-RH-CAS Document 80 Filed 08/10/12 Page 1 of 7Case 1:11-cv-01428-CKK-MG-ESH Document 143-1 Filed 08/10/12 Page 23 of 42

2

provisions. The third-party voter registration law regulates organizations that conduct

voter registration drives. Plaintiffs are organizations that have conducted such drives in

the past and contended that the third-party voter registration law violated their

constitutional rights, the National Voter Registration Act, and the Voting Rights Act.

2. On December 19, 2011, Plaintiffs moved for a preliminary injunction

barring enforcement of the third-party voter registration law. Defendants filed a

memorandum in opposition on January 24, 2012; Plaintiffs filed a reply memorandum on

February 14, 2012. The Court held a preliminary injunction hearing on March 1, 2012.

3. On May 31, 2012, the Court granted Plaintiffs’ motion in part.

Specifically, the Court entered an Order enjoining Defendants from enforcing the

following provisions of the third-party voter registration law (the “Preliminary Injunction

Order”):

i. Fla. Stat. § 97.0575(1)(c);

ii. Fla. Stat. § 97.0575(1)(d);

iii. Fla. Stat. § 97.0575(3)(a), to the extent it requires delivery of an application within 48 hours—or any period less than 10 days;

iv. Rule 1S-2.042(3)(a), to the extent it requires disclosure of an employee or volunteer who does not actually collect or handle voter-registration applications and to the extent it requires disclosure of a volunteer’s termination within 10 days after it occurs;

v. Rule 1S-2.042(3)(c);

vi. Rule 1S-2.042(3)(d);

vii. Rule 1S-2.042(3)(e), to the extent it requires disclosure of a volunteer’s termination within 10 days after it occurs;

viii. Rule 1S-2.042(5);


3

ix. Rule 1S-2.042(6)(b);

x. Rule 1S-2.042(6)(c), to the extent it addresses form DS-DE 123; and

xi. Rule 1S-2.042(7)(a).

4. The Preliminary Injunction Order concluded that the Plaintiffs were not

likely to prevail on the merits of their challenges to Florida Statute § 97.0575(5) and Rule

1S-2.042(4)(c) (requiring identification numbers on collected forms); Florida Statute §§

97.0575(1) (requiring electronic filing); Florida Statute § 97.0575(4) (providing for

referral of possible violations to the Attorney General for enforcement); Florida Statute §

97.0575(3) and Rule 1S-2.042(2)(d) (waiver of fines for violations based on force

majeure or impossibility of performance).

5. Subsequent to entry of the Preliminary Injunction Order, the parties

engaged in discussions regarding a possible resolution of this matter. On July 2, 2012,

Defendants filed a Notice of Appeal to the United States Court of Appeals for the

Eleventh Circuit to preserve their appellate rights while continuing the Parties’

“productive discussions” toward an orderly and timely final resolution of this action.

6. On August 7, 2012, the Florida Department of State noticed an Emergency

Rule conforming Rule 1S-2.042, Florida Administrative Code, to the terms of the Court’s

Order Granting Preliminary Injunction. The Emergency Rule is attached as Exhibit A.

The Florida Department of State has submitted a proposed rule identical to Exhibit A for


to the rulemaking process set forth in Section 120.54, Florida Statutes.


4

7. Plaintiffs agree that the rule attached as Exhibit A is consistent with the

terms of the Court’s Order Granting Preliminary Injunction and support the adoption of

the rule attached as Exhibit A as a final rule.

8. The Parties have concluded their discussions and have agreed to a

resolution of this matter, subject to the Court’s entry of a Permanent Injunction as set

forth herein.

9. Accordingly, the parties respectfully request that the Court enter a

Permanent Injunction and final judgment as follows:

a. Defendants Kenneth W. Detzner, in his official capacity as Secretary of State

for the State of Florida, Pamela Jo Bondi, in her official capacity as Attorney General for the State of Florida, and Gisela Salas, in her official capacity as Director of the Division of Elections within the Department of State for the State of Florida, are hereby permanently enjoined from taking any step to demand compliance with or enforce the following provisions:

i. Fla. Stat. § 97.0575(1)(c), to the extent it requires identification of

volunteer registration agents or employee registration agents who solicit but do not collect or handle voter registration applications;

ii. Fla. Stat. § 97.0575(1)(d);

iii. Fla. Stat. § 97.0575(3)(a), to the extent it requires delivery of an

application within 48 hours—or any period less than 10 days;

iv. Fla. Stat. § 97.0575(5), to the extent it requires third-party voter registration organizations to report on the number of voter registration applications used by, distributed to, or collected from registration agents;

v. Rule 1S-2.042(3)(a), to the extent it requires disclosure of: any volunteer registration agent; any employee who does not actually collect or handle voter-registration applications; or a volunteer’s termination;

vi. Rule 1S-2.042(3)(c);


5

vii. Rule 1S-2.042(3)(d);

viii. Rule 1S-2.042(3)(e), to the extent it requires disclosure of volunteer registration agents or their termination;

ix. Rule 1S-2.042(4)(b), to the extent it requires recording the time of

collection of any voter registration applications;

x. Rule 1S-2.042(5);

xi. Rule 1S-2.042(6)(a), to the extent it requires an accounting of the number of voter registration forms provided to or held by a third party voter registration organization;

xii. Rule 1S-2.042(6)(b), to the extent it requires notice of termination of volunteer registration agents;

xiii. Rule 1S-2.042(6)(c), to the extent it addresses form DS-DE 123;

and

xiv. Rule 1S-2.042(7)(a), to the extent it requires delivery of an application within 48 hours—or any period less than 10 days; to the extent it requires recording the time of delivery; and to the extent it imposes a fine for late delivery because of the absence of a ‘clear postmark’ on any organization that actually mailed an application within 10 days after collecting it.

b. This injunction does not affect any other portion of Florida Statutes § 97.0575 or Florida Administrative Code Rule 1S-2.042. This injunction is binding on the Secretary of State, Attorney General, and Director of the Division of Elections and their successors, officers, agents, servants, employees, and attorneys, and on those persons in active concert or participation with them who receive actual notice of this order by personal service or otherwise. The court retains jurisdiction to enforce this injunction.

c. All other claims in this action are dismissed with prejudice.

d. No costs or attorneys’ fees will be taxed by the Court. e. The clerk must enter a judgment with the terms set out in paragraphs a, b, and

c above.



6

/s/ Farrah R. Berse__________________ Robert A. Atkins Farrah R. Berse ([email protected]) N.Y. Bar Registration No. 4129706 Paul, Weiss, Rifkind, Wharton &

Garrison LLP 1285 Avenue of the Americas New York, New York 10019-6064 Tel. 212-373-3000 Fax 212-757-3990 Alex Young K. Oh Zachary A. Dietert Paul, Weiss, Rifkind, Wharton &

Garrison LLP 2001 K Street NW Washington, DC 20006-1047 Tel. 202-223-7300 Fax 202-223-7420 Wendy R. Weiser Diana Kasdan Lee Rowland Mimi Murray Digby Marziani Brennan Center for Justice at New York

University School of Law 161 Avenue of the Americas, 12th Floor New York City, New York 10013-1205 Tel. 646-292-8310 Fax 212-463-7308 Kendall Coffey Coffey Burlington, P.L. 2699 S. Bayshore Drive, Penthouse Miami, Florida 33133-5408 Tel. 305-858-2900 Fax 305-858-5261 Randall C. Marshall Julie A. Ebenstein American Civil Liberties Union

Foundation of Florida, Inc. 4500 Biscayne Boulevard, Suite 340

Daniel E. Nordby General Counsel Florida Bar No. 014588 Ashley E. Davis Assistant General Counsel Florida Bar No. 48032 Florida Department of State R.A. Gray Building 500 S. Bronough Street Tallahassee, Florida 32399-0250 Tel. 850-245-6536 Fax 850-245-6127 Counsel for Defendants Secretary of State Kenneth W. Detzner and Director of Division of Elections Gisela Salas Blaine H. Winship Special Counsel Florida Bar No. 356913 Office of the Attorney General of Florida The Capitol, Suite PL-01 Tallahassee, Florida 32399-1050 Tel. 850-414-3300 Fax 850-488-4872 Attorney for All Defendants


7

Miami, Florida 33137-3227 Tel. 786-363-2700 Fax 786-363-1108 Attorneys for All Plaintiffs

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that the foregoing document was served by filing in this Court’s CM/ECF system this 10th day of August, 2012, on all attorneys of record.

/s/ Farrah R. Berse _________ Attorney


Exhibit A

Case 4:11-cv-00628-RH-CAS Document 80-1 Filed 08/10/12 Page 1 of 8Case 1:11-cv-01428-CKK-MG-ESH Document 143-1 Filed 08/10/12 Page 30 of 42

1















Applications.”






control.









2







(3) Registration.























3

























registration agents. If the 10th day falls on a weekend, holiday, or other day on which the Division or the supervisor





4














agents.
















5










being terminated.



6291.


Elections.















6













(8) Complaints.






F.A.C.










7


organization.







Exhibit D


No. 12-13522-FF

_________________

In the United States Court of Appeals

for the Eleventh Circuit

_________________

KENNETH W. DETZNER, in his official capacity as Secretary of State for the State of

Florida, PAMELA J. BONDI, in her official capacity as Attorney General for the State of

Florida, and GISELA SALAS, in her official capacity as Director of the Division of Elections

within the Department of State for the State of Florida,

Defendants / Appellants,

v.

LEAGUE OF WOMEN VOTERS OF FLORIDA, FLORIDA PUBLIC INTEREST

RESEARCH GROUP EDUCATION FUND, and ROCK THE VOTE,

Plaintiffs / Appellees.

________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

_______________

APPELLANTS’ UNOPPOSED MOTION TO VOLUNTARILY DISMISS

Blaine H. Winship

Special Counsel

Florida Bar No. 356913

Office of the Attorney General of Florida

The Capitol, Suite PL-01

Tallahassee, Florida 32399-1050

(850)414-3300

(850)488-4872 facsimile

Attorney for All Defendants/Appellants

Daniel E. Nordby

General Counsel


Ashley E. Davis

Assistant General Counsel


Florida Department of State

R.A. Gray Building

500 S. Bronough Street


(850)245-6536

(850)245-6127 facsimile

Counsel for Defendants/Appellants Secretary

of State Kenneth W. Detzner and Director

Division of Elections Gisela Salas


Detzner v. League of Women Voters of Florida

Case No. 12-13522-FF

Page C-2 of 4

APPELLANTS’ CERTIFICATE OF INTERESTED PERSONS

Pursuant to 11th Circuit Rule 26.1-1, Appellants furnish a complete list of the following

persons who have an interest in the outcome of this case below or on appeal:

1. Akins, Robert A., attorney for all Plaintiffs /Appellees

2. American Civil Liberties Union Foundation of Florida, Inc., attorneys for all Plaintiffs

/Appellees

3. Berse, Farrah R., attorney for all Plaintiffs /Appellees

4. Bondi, Pamela Jo, in her official capacity as Attorney General for the State of Florida,

Defendant/Appellant

5. Brennan Center for Justice at New York University School of Law, attorneys for all

Plaintiffs /Appellees

6. Browning, Kurt S., former Secretary of State for the State of Florida, Defendant

7. Coffee, Kendall, attorney for all Plaintiffs /Appellees

8. Coffey Burlington, P.L., attorneys for all Plaintiffs /Appellees

9. Davis, Ashley E., counsel for Defendants/Appellants Secretary of State Kenneth W.

Detzner and Director of Division of Elections Gisela Salas

10. Detzner, Kenneth W., in his official capacity as Secretary of State for the State of

Florida, Defendant/Appellant

11. Dietert, Zachary A., attorney for all Plaintiffs /Appellees

12. Ebenstein, Julie A., attorney for all Plaintiffs /Appellees

13. Florida Public Interest Research Group Education Fund, Plaintiff/Appellee




Page C-3 of 4

14. Hinkle, Robert L., United States District Court Judge for the Northern District of Florida

15. Kasdan, Diana, attorney for all Plaintiffs /Appellees

16. League of Women Voters of Florida, Plaintiff/Appellee

17. League of Women Voters, national affiliate of Plaintiff/Appellee League of Women

Voters of Florida

18. Marshall, Randall C., attorney for all Plaintiffs /Appellees

19. Marziani, Mimi Murray Digby, attorney for all Plaintiffs /Appellees

20. Nordby, Daniel E., counsel for Defendants/Appellants Secretary of State Kenneth W.

Detzner and Director of Division of Elections Gisela Salas

21. Oh, Alex Young K., attorney for all Plaintiffs /Appellees

22. Parent, Abigail, attorney for all Plaintiffs /Appellees

23. Paul, Weiss, Rifkind, Wharton & Garrison LLP, attorneys for all Plaintiffs /Appellees

24. Rock the Vote, Plaintiff/Appellee

25. Salas, Gisela, in her official capacity as Director of the Division of Elections within the

Department of State for the State of Florida, Defendant/Appellant

26. Taylor, William J. Jr., attorney for all Plaintiffs /Appellees

27. United States Public Interest Research Group, national affiliate of Plaintiff/Appellee

Florida Public Interest Research Group Education Fund

28. Weiser, Wendy R., attorney for all Plaintiffs /Appellees

29. Winship, Blaine H., attorney for all Defendants / Appellants




Page C-4 of 4

APPELLANTS’ UNOPPOSED MOTION TO VOLUNTARILY DISMISS APPEAL

Appellants, pursuant to 11th Cir. R. 42-1(a), move to voluntarily dismiss this appeal with

prejudice. This motion is unopposed.

WHEREFORE, Appellants respectfully ask the Court to dismiss this appeal.

Blaine H. Winship

Special Counsel


Office of the Attorney General of Florida

The Capitol, Suite PL-01


(850)414-3300

(850)488-4872 facsimile

Attorney for All Defendants/Appellants


/s/ Ashley E. Davis

Daniel E. Nordby

General Counsel


Ashley E. Davis

Assistant General Counsel


Florida Department of State

R.A. Gray Building

500 S. Bronough Street


(850)245-6536

(850)245-6127 facsimile

Counsel for Defendants/Appellants Secretary

of State Kenneth W. Detzner and Director

Division of Elections Gisela Salas


I HEREBY CERTIFY that the foregoing document was served this 10th day of August,

2012 on all attorneys of record via U.S. Mail and email.

_/s/ Ashley E. Davis ________

Attorney



STATE OF FLORIDA Office of the Secretary of State 500 S. Bronough Street Tallahassee, FL 32399-0250,

Plaintiff,



Defendants.

THIRD AMENDED COMPLAINT FOR DECLARATORY JUDGMENT

The State of Florida, by and through its Secretary of State Kenneth W. Detzner, seeks a

declaratory judgment that recently-enacted changes in the Florida Election Code are entitled to

preclearance under Section 5 of the Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973c

(“VRA”). The changes have neither the purpose nor will they have the effect of denying or

abridging the right to vote on account of race, color, or membership in a language minority.

Alternatively, the State of Florida seeks a declaratory judgment that the preclearance

obligation of Section 5 and the coverage formula of Section 4(b) of the VRA, 42 U.S.C. §

1973b(b), are unconstitutional, as well as a permanent injunction enjoining their

enforcement. Subjecting Florida counties and other jurisdictions covered exclusively under the

language minority provisions of the VRA to preclearance is not a rational, congruent, or proportional

means of enforcing the Fourteenth and/or Fifteenth Amendments and violates the Tenth Amendment

and Article IV of the U.S. Constitution.


2

I. PARTIES

1. Plaintiff, the State of Florida, is a State of the United States of America and brings

this action on behalf of itself and its citizens.

2. Kenneth W. Detzner, in his official capacity as the Secretary of State of Florida, is

the chief elections officer of the State of Florida. Secretary Detzner has the responsibility, inter

alia, to obtain and maintain uniform implementation of the election laws, to ensure compliance

with federal election laws, and to require the supervisors of elections to perform their official

duties.

3. Defendants are the United States of America and Eric H. Holder, Jr., in his

official capacity as Attorney General of the United States. Attorney General Holder is charged

with certain responsibilities related to Section 5 on behalf of the Department of Justice (“DOJ”),

including the defense of Section 5 declaratory judgment actions brought in the United States

District Court for the District of Columbia (“DDC”).

II. BACKGROUND

A. The Voting Rights Act

4. In 1965, Congress enacted the VRA to enforce the substantive guarantee of the

Fifteenth Amendment. See Pub. L. No. 89-110, 79 Stat. 437 (1965).

5. Section 2 of the VRA enforced the substantive guarantee of the Fifteenth

Amendment by outlawing any “voting qualification or prerequisite to voting, or standard, practice,

or procedure . . . imposed or applied . . . to deny or abridge the right of any citizen of the United

States to vote on account of race or color.” Id. § 2, 79 Stat. at 437. This prohibition applies

nationwide. Id.


3

6. Other provisions of the VRA apply only to certain jurisdictions pursuant to a

geographic “coverage formula” established by the statute.

7. Section 4(b) set forth a formula under which “covered” jurisdictions would be

subjected to the “preclearance” obligation of Section 5. Section 4(b) covered “any State or any

political subdivision of a state which . . . the Attorney General determine[d] maintained on

November 1, 1964, any [prohibited] test or device, and with respect to which . . . the Director of the

Census determine[d] that less than 50 percentum of the persons of voting age residing therein were

registered on November 1, 1964, or that less than 50 percentum of such persons voted in the

presidential election of November 1964.” Id. § 4(b), 79 Stat. at 438.

8. Under Section 4(b)’s formula, seven States (Alabama, Alaska, Georgia, Louisiana,

Mississippi, South Carolina, and Virginia), forty counties in North Carolina, as well as several

counties in Arizona, Hawaii, and Idaho, became “covered” jurisdictions.

9. Section 5 required these covered jurisdictions to “preclear” any new law or any

change to an existing law involving “any voting qualification or prerequisite to voting, or standard,

practice, or procedure with respect to voting different from that in force or effect on November 1,

1964.” Id. § 5, 79 Stat. at 439. The covered jurisdictions could obtain “preclearance” by submitting

the proposed change to DOJ or by filing a declaratory-judgment action before a three-judge panel of

the DDC. Id.

10. Preclearance could be granted by DOJ or the DDC only if the voting change “[did]

not have the purpose and [would] not have the effect of denying or abridging the right to vote on

account of race or color.” Id.

11. Section 5 was originally a “temporary provision[] . . . expected to be in effect for

only five years.” Nw. Austin Mun. Util. Dist. No. 1 v. Holder, 129 S. Ct. 2504, 2510 (2009). In


4

1970, however, Congress reauthorized the VRA for another five years. See Voting Rights Act

Amendments of 1970, Pub. L. No. 91-285, 84 Stat. 314 (1970).

12. In 1975, Congress reauthorized the VRA for another seven years. Act of Aug. 6,

1975, Pub. L. No. 94-73, 89 Stat. 400.

13. In reauthorizing the VRA in 1975, Congress extended Section 4(b)’s coverage

formula—and thus Section 5’s preclearance obligation—to any jurisdiction that had maintained a

prohibited “test or device” on November 1, 1972, and had voter registration on that date or turnout

in the 1972 presidential election of less than 50 percent. Id. § 202, 89 Stat. at 401.

14. In 1975, Congress also extended Section 5’s preclearance obligation by expanding

the definition of “test or device” to include the provision of election materials only in English by

jurisdictions in which more than five percent of the voting age citizens were members of “a single

language minority.” Id. § 203, 89 Stat. at 401-02.

15. In 1982, Congress reauthorized the VRA for another twenty-five years. Voting

Rights Act Amendments of 1982, Pub. L. No. 97-205, 96 Stat. 131 (1982).

16. In 2006, Congress again reauthorized the VRA for another twenty-five years.

Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and

Amendments Act of 2006, Pub. L. No. 109-246, 120 Stat. 577 (2006) (“2006 Reauthorization

Act”).

17. In reauthorizing the VRA in 2006, Congress imposed preclearance requirements

under the same coverage formulas adopted in 1965, 1970, and 1975.

18. Congress also added new provisions regarding the standard a covered jurisdiction

must meet for obtaining preclearance. See 42 U.S.C. § 1973c(b)-(d).


5

19. The 2006 Reauthorization Act amended Section 5 to require covered jurisdictions

to prove that a voting change does not have the purpose or effect of “diminishing the ability of

any citizens of the United States on account of race or color, or [membership in a language

minority group] to elect their preferred candidates of choice.” Id. § 1973c(b); id. § 1973c(d)

(noting that this provision was enacted “to protect the ability of such citizens to elect their

preferred candidates of choice”).

20. Before 2006, a covered jurisdiction could obtain preclearance under a more

flexible standard: by proving through “the totality of the circumstances,” Georgia v. Ashcroft,

539 U.S. 461, 480-85 (2003), that the change would not “lead to a retrogression in the position of

racial minorities with respect to their effective exercise of the electoral franchise.” Beer v. United

States, 425 U.S. 130, 141 (1976).

21. The 2006 Reauthorization Act further amended Section 5 to require a covered

jurisdiction to prove that the voting change does not have “any discriminatory purpose.” 42

U.S.C. § 1973c(c). Prior to this amendment, Section 5 had been interpreted to permit preclearance

of voting changes “enacted with a discriminatory but nonretrogressive purpose.” Reno v. Bossier

Parish School Bd., 528 U.S. 320, 341 (2000).

22. This prior preclearance standard limited “the substantial federalism costs that the

preclearance procedure already exacts” and avoided “raising concerns about § 5’s constitutionality.”

Id. at 336.

B. Florida and the Voting Rights Act

23. Florida is a “partially covered” state under the VRA because five Florida counties

are subject to the preclearance requirements of Section 5. Specifically, Collier, Hardee, Hendry,


6

Hillsborough, and Monroe Counties have been designated as covered jurisdictions under Section

4 of the Voting Rights Act, 42 U.S.C. § 1973b(b).

24. These five Florida jurisdictions are covered jurisdictions based on the Attorney

General’s determination that, on November 1, 1972, these jurisdictions provided materials and

information relating to the electoral process only in the English language; more than five percent

of the citizens of voting age were members of a single language minority; and less than half of

the voting-age citizens in these jurisdictions were either registered to vote or voted in the

Presidential election of November 1972.

25. Based on the same formula originally adopted in 1975 and still found in Section

4(b) of the Voting Rights Act, these five counties remain covered jurisdictions subject to the

preclearance requirements of Section 5.

26. To obtain preclearance, Florida must establish that the voting changes in the five

jurisdictions do not have the “purpose of or will have the effect of diminishing the ability of any

citizens of the United States on account of race or color . . . to elect their preferred candidates of

choice,” 42 U.S.C. § 1973c(b), even though Florida is itself not a covered jurisdiction, and even

though the five Florida counties are covered only under the VRA’s language minority provisions,

see id., (f)(2).

C. The 2011 Florida Voting Changes

27. On May 19, 2011, Committee Substitute for Committee Substitute for House Bill

No. 1355, an omnibus bill revising the Florida Election Code, became law. This law has been

codified at Chapter 2011-40, Laws of Florida (the “Act”).

28. The Act contains revisions to Florida statutes governing third-party voter

registration organizations (§ 97.0575, Fla. Stat.), state constitutional amendments proposed by


7

initiative (§ 100.371, Fla. Stat.), election-day address changes (§ 101.045, Fla. Stat.), and early

voting (§ 101.657, Fla. Stat.). These provisions are collectively referred to as the “Four Voting

Changes.”

29. On May 19, 2011, Florida Secretary of State Kurt S. Browning issued Directive

2011-01 to the State supervisors of elections. The Directive described the changes made by the

Act and provided guidance to the supervisors of elections as to their duties under the Act.

30. On June 8, 2011, Secretary Browning submitted the Act to the United States

Department of Justice for administrative preclearance. On July 29, 2011, the Four Voting

Changes were withdrawn from administrative preclearance, while the other 76 provisions of the

Act were kept before the Department of Justice for preclearance. On August 8, the Department

of Justice precleared these 76 provisions of the Act.

31. After holding a publicly-noticed rule development workshop and accepting

extensive public comment from affected parties, the Florida Department of State adopted Rule

1S-2.042 on October 13, 2011. See Third-Party Voter Registration Organizations, Fla. Admin.

Code R. 1S-2.042 (2011). This version of Rule 1S-2.042 was an administrative rule that

implemented the revisions to the Florida statute governing third-party voter registration

organizations. Except in the five covered counties, Rule 1S-2.042 took effect on November 2,

2011.

32. On August 8, 2011, the Department of Justice granted administrative

preclearance to all provisions of the Act other than the Four Voting Changes. On March 21,

2012, the Department of Justice granted administrative preclearance to the changes related

to the state constitutional amendments proposed by initiative (§ 100.371, Fla. Stat.).


8

On May 31, 2012, District Judge Robert Hinkle granted in part and denied in part a motion for a

preliminary injunction and preliminarily enjoined certain provisions of Fla. Stat. § 97.0575 and

Rule 1S-2.042. See League of Women Voters of Florida v. Browning, --- F.Supp.2d ----, 2012

WL 1957793, (N.D. Fla. May 31, 2012).

33. On August 7, 2012, the Florida Department of State noticed an emergency rule

that modified Rule 1S-2.042 to conform to the terms of Judge Hinkle’s preliminary injunction

(“Emergency Rule 1SER12-01”). See Exhibit A. Emergency Rule 1SER12-01 becomes effective

on August 15, 2012. See Emergency Rule 1SER12-01(9).

34. In addition, Emergency Rule 1SER12-01 made two minor changes to Rule 1S-

2.042 to address concerns raised by the parties in this case and in Browning. See Emergency

Rule 1SER12-01(5)(c) (providing that the Secretary of State “will not refer” a violation to the

Attorney General if force majeure or impossibility of performance is shown); Emergency Rule

1SER12-01(8)(d) (providing that the Secretary of State will not refer a violation to the Attorney

General “unless there is evidence that the applicant entrusted the voter registration application to

a third-party voter registration organization”).

35. On August 7, 2012, the Florida Department of State also submitted a proposed

rule identical to Emergency Rule 1SER12-01 for publication in the Florida Administrative

Weekly and adoption as a final rule according to the rulemaking process set forth in Fla. Stat. §

120.54 (“Final Rule 1S-2.042”). See Exhibit B.

36. On August 10, 2012, the parties in Browning filed a joint motion for a permanent

injunction with Judge Hinkle in the Northern District of Florida. See Exhibit C. The parties

informed the court that they had resolved their dispute and they asked the court to convert its

preliminary injunction to a permanent injunction. As a result, certain provisions of Fla. Stat. §


9

97.0575 will be permanently enjoined, but the remainder of Fla. Stat. § 97.0575 will be left in

place (the “Non-Enjoined Statutory Changes”).

37. The Non-Enjoined Statutory Changes are:

Fla. Stat. § 97.0575(1)(a) Fla. Stat. § 97.0575(1)(b) Fla. Stat. § 97.0575(1)(c), except to the extent it requires identification

of volunteer registration agents or employee registration agents who solicit but do not collect or handle voter registration applications

Fla. Stat. § 97.0575(2) Fla. Stat. § 97.0575(3)(a), except to the extent it requires delivery of an

application within 48 hours—or any period less than 10 days; Fla. Stat. § 97.0575(3)(b) Fla. Stat. § 97.0575(4) Fla. Stat. § 97.0575(5), except to the extent it requires third-party voter

registration organizations to report on the number of voter registration applications used by, distributed to, or collected from registration agents

Fla. Stat. § 97.0575(6) Fla. Stat. § 97.0575(7)

38. The Non-Enjoined Statutory Changes and Emergency Rule 1SER12-01 are

collectively referred to as the “Third Party Changes.”

39. The Third Party Changes, the changes related to address changes at the polling

place (§ 101.045, Fla. Stat.), and the changes related to early voting (§ 101.657, Fla. Stat.) are

collectively referred to as the Three Voting Changes.

40. Florida brings this action pursuant to 42 U.S.C. § 1973c and 28 U.S.C. § 2201,

seeking a declaratory judgment that the Three Voting Changes neither have the purpose nor will

have the effect of denying or abridging the right to vote on account of race, color, or membership

in a language minority, thereby allowing the State to uniformly enforce its elections laws.

III. JURISDICTION AND VENUE

41. This Court has subject matter jurisdiction under Section 14(b) of the Voting

Rights Act, as amended, 42 U.S.C. § 1973l, and under 28 U.S.C. § 1331, because this action


10

arises under the Constitution and laws of the United States. This Court has jurisdiction to render

declaratory relief under 28 U.S.C. § 2201.

42. Venue is proper in this Court pursuant to Section 5 of the Voting Rights Act and

28 U.S.C. § 2284. This action is properly determinable by a three judge district court in

accordance with Section 5 and 28 U.S.C. § 2284.

IV. PRECLEARANCE ALLEGATIONS

43. The Act, Chapter 2011-40, Laws of Florida, revises numerous statutes within the

Florida Elections Code (Chapters 97-106 of the Florida Statutes). The Act addressed a wide

range of subjects, including registration of minor political parties, political advertisement

disclaimers, and reporting of election results by supervisors of elections.

44. The State of Florida seeks a declaratory judgment, pursuant to Section 5 of the

VRA, related to the Three Voting Changes: Section 41 (addressing third-party voter registration

organizations) together with Emergency Rule 1SER12-01, which administratively implements

that statutory provision; Section 26 (addressing change of residence); and Section 39

(addressing early voting). This action is filed for the purpose of determining an actual

controversy between the parties within the Court’s jurisdiction, and to allow the State to

uniformly enforce duly-enacted amendments to the Florida Election Code.

45. As described below, each of the Three Voting Changes applies uniformly to all

Floridians regardless of race, color, or membership in a language minority. These provisions

were not adopted with the purpose and will not have the effect of denying or abridging the right

to vote on account of race, color, or membership in a language minority.

1 In this Third Amended Complaint, “Section 4” refers to the non-enjoined provisions of Section 4 of the Act.


11

A. Section 4 (Third-Party Voter Registration Organizations)

(i) Benchmark Practice — Third-Party Voter Registration Organizations

46. Prior to 1995, only state officials and individuals deputized by supervisors of

elections as registrars were permitted to collect voter registration applications in Florida. The

Florida Legislature’s first comprehensive regulation of third-party voter registration

organizations came in 2005 with the enactment of section 97.0575, Florida Statutes. This statute,

as amended in 2007, represents the “benchmark” practice for purposes of Section 5.

47. Under the benchmark practice, a “third-party voter registration organization” is

defined as “any person, entity, or organization soliciting or collecting voter registration

applications” other than a person registering, or collecting an application from, that person’s

spouse, child or parent; or a person who registers to vote or collects voter registration

applications as an employee or agent of the Florida Department of State’s Division of Elections

(“Division”), a supervisor of elections, the Department of Highway Safety and Motor Vehicles,

or a voter registration agency. § 97.021(37), Fla. Stat.

48. “Prior to engaging in any voter registration activities,” the benchmark practice

required each third-party voter registration organization to name a registered agent in the state

and submit additional information to the Division. § 97.0575(1), Fla. Stat. Specifically, the

benchmark practice required each third-party voter registration organization to submit to the

Division a form containing:

the name of the registered agent and the name of those individuals responsible for the day-to-day operation of the third-party voter registration organization, including, if applicable, the names of the entity’s board of directors, president, vice president, managing partner, or such other individuals engaged in similar duties or functions.

§ 97.0575(1), Fla. Stat.


12

49. Because each third-party voter registration organization that collected voter

registration applications “serves as a fiduciary to the applicant,” the benchmark practice required

each organization to ensure that any application entrusted to the organization, “irrespective of

party affiliation, race, ethnicity, or gender,” is “promptly delivered to the division or the

supervisor of elections.” § 97.0575(3), Fla. Stat.

50. The benchmark practice provided for fines on any third-party voter registration

organization that failed to promptly deliver applications that it collected. § 97.0575(3), Fla. Stat.

The applicable fines were $50 for each application received by a supervisor of elections or the

Division more than ten days after the applicant delivered the completed application to the third-

party voter registration organization; $100 for each application collected by a third-party voter

registration organization before book closing for any given election for federal or state office and

received by a supervisor of elections or the Division after the book-closing deadline for that

election; and $500 for each application collected by a third-party voter registration organization

that is not submitted to the Division or a supervisor of elections. § 97.0575(3), Fla. Stat. The

amounts of these fines increased to $250, $500, and $1,000, respectively, for willful violations. §

97.0575(3), Fla. Stat. The benchmark practice did not impose any civil or criminal penalties on a

third-party voter registration organization solely for failure to register with the Division. §

97.0575(2), Fla. Stat.

51. The benchmark practice capped at $1,000 the maximum aggregate fine that could

be assessed against any third-party voter registration organization (including affiliate

organizations) for all violations committed in a calendar year. § 97.0575(3), Fla. Stat. The

benchmark practice required the Secretary of State to waive the fines upon a showing that the

failure to deliver the application promptly was based upon force majeure or impossibility of


13

performance and provided for a three-fourths reduction in the applicable fines for third-party

voter registration organizations that had complied with the statute’s registration requirements.

§ 97.0575(3), Fla. Stat. Under the benchmark practice, the Division had authority to investigate

violations of the third-party voter registration organization statute, assess civil fines imposed

under the statute, and enforce the fines “through any appropriate legal proceedings.”

§ 97.0575(4)(b), Fla. Stat.

52. Finally, the benchmark practice required third-party voter registration

organizations to submit a report to the Division of Elections on or before the 15th day after the

end of each calendar quarter providing the date and location of any organized voter registration

drives conducted by the organization in the prior calendar quarter. § 97.0575(1), Fla. Stat.

(ii) Changes Sought to Be Precleared — Third-Party Voter Registration Organizations

53. The benchmark practices described above are largely preserved by Section 4 of

the Act, Chapter 2011-40.

54. Section 4 removes the potential for a three-fourth reduction in fines for third-party

voter registration organizations that have complied with the registration requirements but

provides that force majeure or impossibility of performance is an affirmative defense to a failure

to timely deliver a completed application. § 97.0575(3)(b), Fla. Stat. Under Section 4, the

Secretary of State may waive the fines assessed against an organization upon a showing of force

majeure or impossibility of performance, which is now an affirmative defense. § 97.0575(3)(b),

Fla. Stat; see also Emergency Rule 1SER12-01(5)(c) (providing that the Secretary of State “will

not refer” a violation to the Attorney General if force majeure or impossibility of performance is

shown).

55. Section 4 also assigns new administrative responsibilities to the Division and

supervisors of elections regarding distribution of and accounting for voter registration


14

applications (§ 97.0575(2), (5), Fla. Stat.), requires voter registration forms provided to each

third-party voter registration organization to contain information identifying the third-party voter

registration organization to which the forms are provided (§ 97.0575(2), Fla. Stat.), and requires

supervisors of elections to provide information to the Division on voter registration forms

provided to and received from each third-party voter registration organization. (§ 97.0575(2),

Fla. Stat.)

56. Finally, Section 4 shifts enforcement responsibility of the third-party voter

registration statute from the Division to the Florida Attorney General. § 97.0575(4), Fla. Stat. If

the Secretary of State reasonably believes that a person has committed a violation of the statute,

the Secretary may refer the matter to the Attorney General. § 97.0575(4), Fla. Stat. The Attorney

General may institute a civil action for a violation of, or to prevent a violation of, the statute.

§ 97.0575(4), Fla. Stat.

(iii) Purpose and Effect — Third-Party Voter Registration Organizations

57. The changes to the third-party voter registration statute contained in Section 4

were adopted to address Florida’s legitimate interests in: 1) ensuring that all voter registration

applications are properly and timely submitted; 2) holding third-party voter registration

organizations accountable for the applications they collect; and 3) preventing instances of fraud.

The changes were not adopted for the purpose of denying or abridging the right to vote on

account of race, color, or membership in a language minority.

58. The changes in Section 4 apply equally to every group meeting the definition of a

third-party voter registration organization. Moreover, the benchmark requirement that each third-

party voter registration organization ensure the prompt delivery of all voter registration

applications they collect, “irrespective of party affiliation, race, ethnicity, or gender,” — remains

unchanged. § 97.0575(3), Fla. Stat. Section 4 therefore protects the right to vote of all Floridians


15

and does not have the effect of denying or abridging the right to vote on account of race, color,

or membership in a language minority.

B. Section 26 (Change of Residence)

(i) Benchmark Practice — Change of Residence

59. Under the benchmark practice, a person may only vote in the election precinct or

district in which the person has his or her legal residence and in which the person is registered to

vote. § 101.045(1), Fla. Stat. An elector who has moved from the address listed on the person’s

voter registration record must provide notification of the move to the supervisor of elections. §

97.1031, Fla. Stat. An elector who has moved from the precinct in which the elector is registered,

but who has not provided notification of the move to the supervisor of elections before the day of

an election, may nonetheless be permitted to vote in the precinct to which he or she has moved

provided the elector completes an affirmation of change of legal residence. § 101.045(2)(a), Fla.

Stat.

60. Under the benchmark practice, an elector who has completed an affirmation of

change of legal residence may be permitted to vote in the precinct to which he or she has moved

his or her legal residence. § 101.045(2), Fla. Stat. If the elector’s registration can be verified, the

elector is entitled to vote a regular ballot. § 101.045(2)(d), Fla. Stat. If the elector’s eligibility to

vote cannot be determined, he or she is entitled to cast a provisional ballot. § 101.045(2)(d), Fla.

Stat. As an alternative to the affirmation of change of address, an elector may complete a voter

registration application that indicates the change of address of legal residence. § 101.045(2)(c),

Fla. Stat.

61. Upon receipt of the affirmation or application certifying a change of address of

legal residence, the supervisor of elections shall, as soon as practicable, make the necessary


16

changes in the statewide voter registration system to indicate the change in address.

§ 101.045(2)(d), Fla. Stat.

(ii) Changes Sought to Be Precleared — Change of Residence

62. The changes contained in Section 26 preserve the benchmark practice for all

electors whose change of residence is within the same county and for active uniformed services

voters and members of their families. § 101.045(2), Fla. Stat. Section 26 amended the benchmark

practice only for electors who have changed their legal residence, have not previously notified

the supervisor of elections of the change of address, and whose change of address is from outside

the county. § 101.045(2)(b), Fla. Stat. An elector in these circumstances may not change his or

her legal residence at the polls and vote a regular ballot, but is entitled to vote a provisional

ballot upon completion of the affirmation of change of legal residence. § 101.045(2)(b), Fla. Stat.

63. The standards for canvassing a provisional ballot are unchanged by the Act. A

provisional ballot “shall be counted unless the canvassing board determines by a preponderance

of evidence that the person was not entitled to vote.” § 101.048(2)(a), Fla. Stat. In determining

whether a person casting a provisional ballot is entitled to vote, the county canvassing board

shall review the information provided in the Voter’s Certificate and Affirmation, any written

evidence provided by the person casting the ballot, any other evidence presented by the

supervisor of elections, and, in the case of a challenge, any evidence presented by the challenger.

§ 101.048(2)(a), Fla. Stat.

(iii) Purpose and Effect — Change of Residence

64. The changes to the statute governing change of residence provisions contained in

Section 26 were adopted as an anti-fraud measure, to protect against the possibility of a single

elector casting ballots in more than one county. They were not adopted with the purpose of


17

denying or abridging the right to vote on account of race, color, or membership in a language

minority.

65. The changes in Section 26 apply equally to every elector regardless of race, color,

or membership in a language minority. The only electors affected by the changes in Section 26

are those who (1) have changed their legal residence from one county to another county; (2) have

failed to notify the supervisor of elections regarding the change of residence (in writing, by

telephone, or by electronic means) at any time prior to election day; and (3) are not an active

uniformed services voter or a member of his or her family.

66. Even the limited number of electors affected by the changes in Section 26 will not

have their right to vote denied or abridged on account of race, color, or membership in a

language minority. Each such elector is entitled to cast a provisional ballot, which “shall be

counted” by the canvassing board if the elector was registered and entitled to vote at the precinct

where the person cast his or her vote. § 101.048, Fla. Stat. Because the canvassing board will

have the elector’s certificate and affirmation before it, Secretary Browning does not anticipate

any need in the ordinary case for a voter to provide additional information regarding eligibility to

the canvassing board (although the option remains available under section 101.048, Florida

Statutes). An elector whose regular ballot would have been lawfully cast under the benchmark

practice will therefore have his or her provisional ballot counted under the new statute.

67. The rejection of a provisional ballot cast by an elector who was not registered, or

who was not entitled to cast the ballot, or who had already voted in the election, does not amount

to a denial or abridgement of the right to vote. Section 26 does not have the effect of denying or



18

C. Section 39 (Early Voting)

(i) Benchmark Practice — Early Voting

68. The benchmark practice for early voting in Florida was enacted by the Florida

Legislature in 2005 and is codified at Section 101.657, Florida Statutes. Under the benchmark

practice, each supervisor of elections shall allow an elector to vote early “as a convenience to the

voter.” § 101.657(1)(a), Fla. Stat. The supervisor of elections shall designate each early voting

site no later than 30 days prior to an election. § 101.657(1)(b), Fla. Stat. Early voting must be

provided at the main office of the supervisor of elections, and may be provided at a branch

office, city hall, or permanent public library facility. § 101.657(1)(a), Fla. Stat.

69. The benchmark practice generally provides for early voting to begin “on the 15th

day before an election and end on the 2nd day before an election.” § 101.657(1)(d), Fla. Stat.

During the applicable period, the benchmark practice requires early voting to be provided “for 8

hours per weekday and 8 hours in the aggregate each weekend at each site” — a total of 96 hours

of early voting. § 101.657(1)(d), Fla. Stat. Early voting sites may open no sooner than 7 a.m. and

close no later than 7 p.m. on each applicable day. § 101.657(1)(d), Fla. Stat. All early voting sites

in a county shall be open on the same days for the same amount of time. § 101.657(1)(c), Fla.

Stat. Any person in line at the closing of an early voting site is allowed to vote. § 101.657(1)(c),

Fla. Stat.

(ii) Changes Sought to Be Precleared — Early Voting

70. Section 39 preserves the option of early voting as a convenience to the voter and

provides increased flexibility to supervisors of elections regarding the scheduling of early voting

in each county. Under Section 39, early voting shall now begin on the 10th day before an

election that contains state or federal races (rather than the 15th day) and end on the 3rd day

before the election (rather than the 2nd day). § 101.657(1)(d), Fla. Stat. Early voting shall be


19

provided for no less than 6 hours and no more than 12 hours per day at each site. §

101.657(1)(d), Fla. Stat. Section 39 repeals the prior provision requiring that all early voting sites

in a county be open on the same days for the same amount of time. § 101.657(1)(c), Fla. Stat.

Section 39 also repeals the provision limiting early voting sites to operation between the hours of

7 a.m. and 7 p.m. § 101.657(1)(d), Fla. Stat.

71. For elections not held in conjunction with a state or federal election, the statute

provides supervisors of elections the discretion to provide early voting and to determine the

hours of operation of early voting sites. § 101.657(1)(d), Fla. Stat.

(iii) Purpose and Effect — Early Voting

72. The changes to the early voting statute contained in Section 39 were adopted to

expand access to early voting and provide each supervisor of elections additional flexibility

regarding the scheduling of early voting. The changes to the early voting statute contained in

Section 39 were not adopted with the purpose of denying or abridging the right to vote on


73. Section 39 provides for expanded access to early voting in several ways. Most

significantly, Section 39 mandates additional hours of weekend early voting. Under Section 39,

weekend early voting is increased from 16 total hours to a minimum of 18 hours and as many as

36 hours. § 101.657(1)(d), Fla. Stat. By more than doubling the maximum number of weekend

early voting hours, Section 39 provides for increased accessibility to the convenience of early

voting.

74. Section 39 also increases the maximum number of weekday early voting hours:

from 8 hours to 12 hours. § 101.657(1)(d), Fla. Stat. This change provides additional early voting

opportunities for electors whose work schedules do not allow time to vote during the traditional

8 hour work day.


20

75. If precleared, Section 39 will also mandate 6-12 hours of Sunday early voting in

Florida’s five counties covered by Section 5 of the Voting Rights Act. None of the covered

counties offered Sunday early voting in the 2008 or 2010 primary or general elections.

76. The changes to early voting contained in Section 39 will not have the effect of


minority. Indeed, Section 39 will likely result in the greatest benefit to low-income residents in

the covered counties who may have found it more difficult to vote early during the limited 8 hour

window allowed under the benchmark practice.

V. CAUSES OF ACTION

COUNT ONE: DECLARATORY JUDGMENT — THIRD-PARTY VOTER REGISTRATION

77. The State of Florida realleges, adopts, and incorporates by reference all

paragraphs above.

78. The non-enjoined changes to section 97.0575, Florida Statutes, were adopted for

the purpose of 1) ensuring that all voter registration applications are properly and timely

submitted; 2) holding third-party voter registration organizations accountable for the applications

they collect; and 3) preventing instances of fraud. The changes were not adopted for any

discriminatory purpose.

79. The non-enjoined changes to section 97.0575, Florida Statutes, when compared to

Florida’s existing or “benchmark” practices, do not lead to a “retrogression” in the position of

racial minorities in that they do not have the effect of denying or abridging the right to vote on



21

80. The non-enjoined changes to section 97.0575, Florida Statutes, accordingly have

neither the purpose nor will have the effect of denying or abridging the right to vote on account

of race, color, or membership in a language minority.

81. The non-enjoined changes to section 97.0575, Florida Statutes, do not and will

not prohibit any citizen of the United States from electing his or her preferred candidate of

choice.

82. The non-enjoined changes to section 97.0575, Florida Statutes, apply uniformly to

all Floridians regardless of race, color, or membership in a language minority.

83. The non-enjoined changes to section 97.0575, Florida Statutes, do not result in

any discriminatory effect that is statistically significant.

84. Emergency Rule 1SER12-01—the implementing regulation of section 97.0575,

Florida Statutes—likewise has neither the purpose nor will have the effect of denying or


85. The State of Florida is entitled to a judgment that the non-enjoined changes to

section 97.0575, Florida Statutes, and Emergency Rule 1SER12-01, neither have the purpose nor

will have the effect of denying or abridging the right to vote on account of race, color, or

membership in a language minority under Section 5 of the Voting Rights Act of 1965, as

amended, 42 U.S.C. § 1973c, and that Florida’s covered jurisdictions may administer these

covered changes without further delay.

WHEREFORE, the State of Florida respectfully requests that this Court:

A. Convene a three-judge district court to hear the matters raised in this

Complaint;


22

B. Enter a declaratory judgment that the non-enjoined changes to section

97.0575, Florida Statutes (the Non-Enjoined Statutory Changes, see supra) together with the

section’s implementing regulation (Emergency Rule 1SER12-01) neither have the purpose nor

will have the effect of denying or abridging the right to vote on account of race, color, or

membership in a language minority and may be administered by Florida’s covered jurisdictions

without impediment on account of Section 5 of the Voting Rights Act of 1965, as amended, 42

U.S.C. § 1973c; and

C. Award the State of Florida its costs and grant such other relief as the Court

may deem just and proper.

COUNT TWO: DECLARATORY JUDGMENT — CHANGE OF ADDRESS


paragraphs above.

87. The covered changes to section 101.045, Florida Statutes, were adopted for the

purpose of preventing fraudulent voting by a single elector casting ballots in more than one

county. The covered changes were not adopted for any discriminatory purpose.

88. The covered changes to section 101.045, Florida Statutes, when compared to




89. The covered changes to section 101.045, Florida Statutes, accordingly have



90. The covered changes to section 101.045, Florida Statutes, do not and will not

prohibit any citizen of the United States from electing his or her preferred candidate of choice.


23

91. The covered changes to section 101.045, Florida Statutes, apply uniformly to all

Floridians regardless of race, color, or membership in a language minority.

92. The covered changes to section 101.045, Florida Statutes, do not result in any

discriminatory effect that is statistically significant.

93. The State of Florida is entitled to a judgment that the covered changes to section

101.045, Florida Statutes, neither have the purpose nor will have the effect of denying or

abridging the right to vote on account of race, color, or membership in a language minority under

Section 5 of the Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973c, and that Florida’s

covered jurisdictions may administer these covered changes without further delay.



Complaint;

B. Enter a declaratory judgment that the covered changes to section 101.045,

Florida Statutes, neither have the purpose nor will have the effect of denying or abridging the

right to vote on account of race, color, or membership in a language minority and may be

administered by Florida’s covered jurisdictions without impediment on account of Section 5 of

the Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973c; and



COUNT THREE: DECLARATORY JUDGMENT — EARLY VOTING


paragraphs above.


purpose of expanding access to early voting and providing each supervisor of elections


24

additional flexibility regarding the scheduling of early voting. The covered changes were not

adopted for any discriminatory purpose.





97. The covered changes to section 101.657, Florida Statutes, accordingly have











abridging the right to vote on account of race, color, or membership in a language minority under

Section 5 of the Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973c, and that Florida’s

covered jurisdictions may administer these covered changes without further delay.



Complaint;


25




administered by Florida’s covered jurisdictions without impediment on account of Section 5 of

the Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973c; and



COUNT FOUR: DECLARATORY JUDGMENT — SECTION 4(B) OF THE VRA IS UNCONSTITUTIONAL


paragraphs above.

103. For several reasons, the formula set forth in Section 4(b) of the VRA is not an

“appropriate” means of enforcing the Fourteenth and/or Fifteenth Amendments and thus violates the

Tenth Amendment and Article IV of the Constitution.

104. Triggering coverage based on voting practices and Presidential election data from

1964, 1968, and 1972 is not a rational, congruent, or proportional means of enforcing the Fourteenth

and/or Fifteenth Amendments.

105. The coverage formula differentiates between the States in violation of the doctrine of

equal sovereignty without a constitutionally appropriate basis for subjecting some States to the

preclearance obligation but not others.



Complaint;


26

B. Enter a declaratory judgment that Section 4(b) of the VRA is facially

unconstitutional;

C. Because Section 4(b)’s coverage formula is facially unconstitutional, issue

a permanent injunction against Defendant Attorney General Eric H. Holder, Jr. enjoining the

enforcement of Section 5; and

D. Award the State of Florida its costs and grant such other relief as the Court


COUNT FIVE: DECLARATORY JUDGMENT — SECTION 5 OF THE VRA IS UNCONSTITUTIONAL


paragraphs above.

107. For several reasons, the preclearance obligation of Section 5 of the VRA is not an

“appropriate” means of enforcing the Fourteenth and/or Fifteenth Amendments and thus violates the

Tenth Amendment and Article IV of the Constitution.

108. Subjecting any jurisdiction covered exclusively under the language minority

provisions of the VRA, and the five Florida counties in particular, to preclearance is not a rational,

congruent, or proportional means of enforcing the Fourteenth and/or Fifteenth Amendments based on

the evidence of language-minority discrimination in the legislative record when Congress reauthorized

Section 5 in 2006.

109. Requiring jurisdictions covered exclusively under the language minority

provisions of the VRA to establish that the relevant voting changes do not interfere with the right

to vote on account of race or color is not a rational, congruent, or proportional means of enforcing

the Fourteenth and/or Fifteenth Amendments.


27

110. Section 5’s substantive standard violates the non-discrimination requirements of

the Fifth and Fourteenth Amendments. See 42 U.S.C. § 1973c(b)-(d).

111. To the extent that Section 5 requires Florida to obtain preclearance for voting

changes that were enacted by the State, apply uniformly across the State, and were not targeted at

or sought by the covered jurisdictions, it is not a rational, congruent, or proportional means of

enforcing the Fourteenth and/or Fifteenth Amendments.



Complaint;

B. Enter a declaratory judgment that Section 5 of the VRA is facially

unconstitutional;

C. Because Section 5 is facially unconstitutional, issue a permanent

injunction against Defendant Attorney General Eric H. Holder, Jr. enjoining the enforcement of

Section 5; and

D. Award the State of Florida its costs and grant such other relief as the Court



28

Dated: August 10, 2012

Respectfully submitted, /s/ William S. Consovoy

Daniel E. Nordby Ashley E. Davis FLORIDA DEPARTMENT OF STATE R.A. Gray Building 500 S. Bronough Street Tallahassee, FL 32399-0250 Tel: 850-245-6536

William S. Consovoy* (D.C. Bar No. 493423) J. Michael Connolly (D.C. Bar No. 995815) WILEY REIN LLP 1776 K Street, NW Washington, DC 20006 Tel: (202) 719-7000 Fax: (202) 719-7049 * Counsel of Record


Exhibit A


Notice of Emergency Rule

DEPARTMENT OF STATE

Division of Elections

RULE NO.: RULE TITLE:

1SER12-01: Third-Party Voter Registration Organizations

SPECIFIC REASONS FOR FINDING AN IMMEDIATE DANGER TO THE PUBLIC HEALTH, SAFETY OR

WELFARE: Pursuant to section 120.54(4)(b), Florida Statutes, this emergency rule is a rule pertaining to the public

health, safety, and welfare as it involves the interpretation and implementation of the requirements of chapters 97-

102 and 105 of the Florida Election Code. A federal court preliminarily enjoined certain aspects of section 97.0575,

Florida Statutes, concerning third-party voter registration organizations. While regular rulemaking will soon occur

for Rule 1S-2.042, this emergency rule is necessary to implement the provisions of the court’s ruling in a timely

manner. The emergency rule removes those procedures that have been enjoined and makes additional clarifications

to conform the rule to the court’s decision. The emergency rule will provide third-party voter registration

organizations and supervisors of elections the direction they need until Rule 1S-2.042 can complete its normal

rulemaking cycle.

REASON FOR CONCLUDING THAT THE PROCEDURE IS FAIR UNDER THE CIRCUMSTANCES: The

Division of Elections is aware of the rulemaking procedures prescribed by Section 120.54, Florida Statutes. That

process requires advance notice to the public of intended rules and the opportunity to submit comments on the

intended rule, prior to the agency’s adoption of the rule. The time period for general rulemaking takes at least 60

days and will prevent the timely amendment and adoption of a rule needed to apply to ongoing registration activities

conducted by third-party voter registrations organizations. In the interim, the provisions of this emergency rule will

ensure that organizations and supervisors of elections will be able to comply with the requirements of law based

upon a federal court ruling preliminarily enjoining certain provisions of Section 97.0575, Florida Statutes. The

Department of State will soon file a notice of proposed rule development for Rule 1S-2.042 with the intent to

incorporate the text of this emergency rule through regular rulemaking.

SUMMARY: This emergency rule revises the procedures used by third-party voter registration organizations to

align them a preliminary injunction issued by a federal court. It restricts the registration requirement to only those

organizations who actually collect voter registration applications from voters; eliminates the organization’s

registration agent sworn statement form, DS-DE 120; deletes the requirement for an organization to list its volunteer

registration agents on the registration form, DS-DE 119; deletes the requirement for an organization to file a

monthly report, DS-DE 123, accounting for voter registration applications; changes the time period from 48 hours to

10 days for the organization to deliver a completed voter registration application to the Division or to a supervisor of

elections' office after an applicant delivers the application to the organization; and further refines the procedures for

supervisors of elections regarding untimely filed voter registration applications and the procedures for the Secretary

of State’s referral of a violation to Florida’s Attorney General. The emergency rule is necessary to ensure that third-

party voter registration organizations and supervisors of elections have the necessary guidance to comply with the

preliminary injunction issued by the U.S. District Court.

THE PERSON TO BE CONTACTED REGARDING THE EMERGENCY RULE IS: Gary J. Holland, Assistant

General Counsel, Florida Department of State, 500 S. Bronough Street, Tallahassee, Florida 32399;

[email protected]; 850-245-6536

THE FULL TEXT OF THE EMERGENCY RULE IS:




https://www.flrules.org/gateway/ruleNo.asp?id=1SER12-01















Applications.”






control.














(3) Registration.














































































agents.
































being terminated.



6291.


Elections.


























(8) Complaints.

















F.A.C.










organization.






THIS RULE TAKES EFFECT UPON BEING FILED WITH THE DEPARTMENT OF STATE UNLESS A

LATER TIME AND DATE IS SPECIFIED IN THE RULE.

EFFECTIVE DATE: August 15, 2012


Exhibit B


Notice of Development of Rulemaking

DEPARTMENT OF STATE Division of Elections RULE NO.: RULE TITLE: 1S-2.042: Third-Party Voter Registration Organizations

PURPOSE AND EFFECT: The primary purpose is to conform the rule to an injunction granted by a federal court. The revisions have the effect of removing those provisions have been enjoined and they make additional clarifications to conform the rule to the court’s decision. The rule will provide third-party voter registration organizations and supervisors of elections the direction they need to comply with applicable law. SUBJECT AREA TO BE ADDRESSED: Third-party voter registration organizations. RULEMAKING AUTHORITY: 20.10(3), 97.012(1), (2), (15), 97.0575(1), (2), (5) FS. LAW IMPLEMENTED: 97.012(1), (2), (15), 97.021 (37), 97.053, 97.0575 FS. IF REQUESTED IN WRITING AND NOT DEEMED UNNECESSARY BY THE AGENCY HEAD, A RULE DEVELOPMENT WORKSHOP WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW: DATE AND TIME: September 4, 2012; 10am. PLACE: Department of State, Room 307, R.A. Gray Building, 500 S. Bronough Street, Tallahassee, Florida. Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special

accommodations to participate in this workshop/meeting is asked to advise the agency at least 5 days before the workshop/meeting by contacting: Gary J. Holland, Assistant General Counsel, Office of General Counsel, Department of State, R. A. Gray Building, 500 S. Bronough Street, Tallahassee, FL 32399-0250; telephone: (850)245-6536; e-mail: [email protected]. If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770 (Voice). THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE DEVELOPMENT AND A COPY OF THE PRELIMINARY DRAFT, IF AVAILABLE, IS: Gary J. Holland, Assistant General Counsel, Office of General Counsel, Department of State, R. A. Gray Building, 500 S. Bronough Street, Tallahassee, FL 32399-0250; telephone: (850)245-6536; e-mail: [email protected]. THE PRELIMINARY TEXT OF THE PROPOSED RULE DEVELOPMENT IS:

1S-2.042 Third-Party Voter Registration Organizations.




(a) Form DS-DE 119 (eff. 09/2012 06/2011), (http://www.flrules.org/Gateway/reference.asp?No=Ref-00428), entitled

“Third-Party Voter Registration Organization Registration Form.”

(b) Form DS-DE 120 (eff. 06/2011), (http://www.flrules.org/Gateway/reference.asp?No=Ref-00429), entitled “Third-

Party Voter Registration Organization Registration Agent’s Sworn Statement.”

(b)(c) Form DS-DE 121 (eff. 06/2011), (http://www.flrules.org/Gateway/reference.asp?No=Ref-00430), entitled “Form

for Complaint Against Third-Party Voter Registration Organization.”

(d) Form DS-DE 123 (eff. 06/2011) (http://www.flrules.org/Gateway/reference.asp?No=Ref-00431), entitled “Third-

Party Voter Registration Organization’s Accounting of Voter Registration Applications.”



Applications.”






control.











https://www.flrules.org/gateway/ruleNo.asp?id=1S-2.042





https://www.flrules.org/gateway/statute.asp?id=%2097.021%20(37)

https://www.flrules.org/gateway/statute.asp?id=%2097.053

https://www.flrules.org/gateway/statute.asp?id=%2097.0575%20FS.












(3) Registration.


“organization”) shall complete and file Form DS-DE 119 with the Division. The organization must submit the form as

an attachment in pdf format in an email to [email protected] or transmit the form to the Division’s



behalf of the affiliate must file a Form DS-DE 119 even if its affiliated organization has filed a Form DS-DE 119. An

organization shall also use Form DS-DE 119 to update or terminate its registration.





(c) A registration agent must complete, sign, and date Form DS-DE 120 before beginning his or her duties for the

organization and the organization must ensure the form is submitted to the Division within 10 days after the form is

signed. Form DS-DE 120 may be submitted to the Division when the organization submits its initial Form DS-DE 119.

For any addition to the list of its registration agents or change in information about a registration agent other than

termination of a registration agent, the organization shall submit an updated Form DS-DE 119. For permissible means

of notifying the Division of the termination of a registration agent, See paragraph (6)(b).



























































agents.
























being terminated.



6291.


Elections.



































(d) Form DS-DE 124 required under this subsection must be submitted as an attachment in pdf format in an email

to [email protected] or transmitted to the Division’s facsimile machine at (850)245-6291.

(8) Complaints.






F.A.C.










organization.




97.053, 97.0575 FS. History–New 2-26-09, Amended 5-31-10, 11-2-11, _______.





Exhibit C


IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

LEAGUE OF WOMEN VOTERS OF FLORIDA, FLORIDA PUBLIC INTEREST RESEARCH GROUP EDUCATION FUND, and ROCK THE VOTE,

Civil No. 4:11-CV-628-RH-WCS

Plaintiffs,

v.

KENNETH W. DETZNER, in his official capacity as Secretary of State for the State of Florida, PAMELA J. BONDI, in her official capacity as Attorney General for the State of Florida, and GISELA SALAS, in her official capacity as Director of the Division of Elections within the Department of State for the State of Florida,

Defendants.

JOINT MOTION FOR PERMANENT INJUNCTION

The Parties jointly move for entry of a permanent injunction as set forth herein.

The Motion is unopposed and the Parties stipulate as follows.

BACKGROUND

1. On December 15, 2011, Plaintiffs filed a complaint seeking an order and

judgment declaring unconstitutional and illegal certain provisions of Florida Statutes §

97.0575 and Florida Administrative Code Rule 1S-2.042, as the statute was amended on

May 19, 2011, and as the rule was amended on November 2, 20111 (collectively, the

“third-party voter registration law”), and enjoining Defendants from implementing these

1 Unless otherwise specified, all references to the statute and rule in this Motion are to the versions as amended in 2011.


2

provisions. The third-party voter registration law regulates organizations that conduct

voter registration drives. Plaintiffs are organizations that have conducted such drives in

the past and contended that the third-party voter registration law violated their

constitutional rights, the National Voter Registration Act, and the Voting Rights Act.

2. On December 19, 2011, Plaintiffs moved for a preliminary injunction

barring enforcement of the third-party voter registration law. Defendants filed a

memorandum in opposition on January 24, 2012; Plaintiffs filed a reply memorandum on

February 14, 2012. The Court held a preliminary injunction hearing on March 1, 2012.

3. On May 31, 2012, the Court granted Plaintiffs’ motion in part.

Specifically, the Court entered an Order enjoining Defendants from enforcing the

following provisions of the third-party voter registration law (the “Preliminary Injunction

Order”):

i. Fla. Stat. § 97.0575(1)(c);

ii. Fla. Stat. § 97.0575(1)(d);

iii. Fla. Stat. § 97.0575(3)(a), to the extent it requires delivery of an application within 48 hours—or any period less than 10 days;

iv. Rule 1S-2.042(3)(a), to the extent it requires disclosure of an employee or volunteer who does not actually collect or handle voter-registration applications and to the extent it requires disclosure of a volunteer’s termination within 10 days after it occurs;

v. Rule 1S-2.042(3)(c);

vi. Rule 1S-2.042(3)(d);

vii. Rule 1S-2.042(3)(e), to the extent it requires disclosure of a volunteer’s termination within 10 days after it occurs;

viii. Rule 1S-2.042(5);


3

ix. Rule 1S-2.042(6)(b);

x. Rule 1S-2.042(6)(c), to the extent it addresses form DS-DE 123; and

xi. Rule 1S-2.042(7)(a).

4. The Preliminary Injunction Order concluded that the Plaintiffs were not

likely to prevail on the merits of their challenges to Florida Statute § 97.0575(5) and Rule

1S-2.042(4)(c) (requiring identification numbers on collected forms); Florida Statute §§

97.0575(1) (requiring electronic filing); Florida Statute § 97.0575(4) (providing for

referral of possible violations to the Attorney General for enforcement); Florida Statute §

97.0575(3) and Rule 1S-2.042(2)(d) (waiver of fines for violations based on force

majeure or impossibility of performance).

5. Subsequent to entry of the Preliminary Injunction Order, the parties

engaged in discussions regarding a possible resolution of this matter. On July 2, 2012,

Defendants filed a Notice of Appeal to the United States Court of Appeals for the

Eleventh Circuit to preserve their appellate rights while continuing the Parties’

“productive discussions” toward an orderly and timely final resolution of this action.

6. On August 7, 2012, the Florida Department of State noticed an Emergency

Rule conforming Rule 1S-2.042, Florida Administrative Code, to the terms of the Court’s

Order Granting Preliminary Injunction. The Emergency Rule is attached as Exhibit A.

The Florida Department of State has submitted a proposed rule identical to Exhibit A for


to the rulemaking process set forth in Section 120.54, Florida Statutes.


4

7. Plaintiffs agree that the rule attached as Exhibit A is consistent with the

terms of the Court’s Order Granting Preliminary Injunction and support the adoption of

the rule attached as Exhibit A as a final rule.

8. The Parties have concluded their discussions and have agreed to a

resolution of this matter, subject to the Court’s entry of a Permanent Injunction as set

forth herein.

9. Accordingly, the parties respectfully request that the Court enter a

Permanent Injunction and final judgment as follows:

a. Defendants Kenneth W. Detzner, in his official capacity as Secretary of State

for the State of Florida, Pamela Jo Bondi, in her official capacity as Attorney General for the State of Florida, and Gisela Salas, in her official capacity as Director of the Division of Elections within the Department of State for the State of Florida, are hereby permanently enjoined from taking any step to demand compliance with or enforce the following provisions:

i. Fla. Stat. § 97.0575(1)(c), to the extent it requires identification of

volunteer registration agents or employee registration agents who solicit but do not collect or handle voter registration applications;

ii. Fla. Stat. § 97.0575(1)(d);

iii. Fla. Stat. § 97.0575(3)(a), to the extent it requires delivery of an

application within 48 hours—or any period less than 10 days;

iv. Fla. Stat. § 97.0575(5), to the extent it requires third-party voter registration organizations to report on the number of voter registration applications used by, distributed to, or collected from registration agents;

v. Rule 1S-2.042(3)(a), to the extent it requires disclosure of: any volunteer registration agent; any employee who does not actually collect or handle voter-registration applications; or a volunteer’s termination;

vi. Rule 1S-2.042(3)(c);


5

vii. Rule 1S-2.042(3)(d);

viii. Rule 1S-2.042(3)(e), to the extent it requires disclosure of volunteer registration agents or their termination;

ix. Rule 1S-2.042(4)(b), to the extent it requires recording the time of

collection of any voter registration applications;

x. Rule 1S-2.042(5);

xi. Rule 1S-2.042(6)(a), to the extent it requires an accounting of the number of voter registration forms provided to or held by a third party voter registration organization;

xii. Rule 1S-2.042(6)(b), to the extent it requires notice of termination of volunteer registration agents;

xiii. Rule 1S-2.042(6)(c), to the extent it addresses form DS-DE 123;

and

xiv. Rule 1S-2.042(7)(a), to the extent it requires delivery of an application within 48 hours—or any period less than 10 days; to the extent it requires recording the time of delivery; and to the extent it imposes a fine for late delivery because of the absence of a ‘clear postmark’ on any organization that actually mailed an application within 10 days after collecting it.

b. This injunction does not affect any other portion of Florida Statutes § 97.0575 or Florida Administrative Code Rule 1S-2.042. This injunction is binding on the Secretary of State, Attorney General, and Director of the Division of Elections and their successors, officers, agents, servants, employees, and attorneys, and on those persons in active concert or participation with them who receive actual notice of this order by personal service or otherwise. The court retains jurisdiction to enforce this injunction.

c. All other claims in this action are dismissed with prejudice.

d. No costs or attorneys’ fees will be taxed by the Court. e. The clerk must enter a judgment with the terms set out in paragraphs a, b, and

c above.



6

/s/ Farrah R. Berse__________________ Robert A. Atkins Farrah R. Berse ([email protected]) N.Y. Bar Registration No. 4129706 Paul, Weiss, Rifkind, Wharton &

Garrison LLP 1285 Avenue of the Americas New York, New York 10019-6064 Tel. 212-373-3000 Fax 212-757-3990 Alex Young K. Oh Zachary A. Dietert Paul, Weiss, Rifkind, Wharton &

Garrison LLP 2001 K Street NW Washington, DC 20006-1047 Tel. 202-223-7300 Fax 202-223-7420 Wendy R. Weiser Diana Kasdan Lee Rowland Mimi Murray Digby Marziani Brennan Center for Justice at New York

University School of Law 161 Avenue of the Americas, 12th Floor New York City, New York 10013-1205 Tel. 646-292-8310 Fax 212-463-7308 Kendall Coffey Coffey Burlington, P.L. 2699 S. Bayshore Drive, Penthouse Miami, Florida 33133-5408 Tel. 305-858-2900 Fax 305-858-5261 Randall C. Marshall Julie A. Ebenstein American Civil Liberties Union

Foundation of Florida, Inc. 4500 Biscayne Boulevard, Suite 340

Daniel E. Nordby General Counsel Florida Bar No. 014588 Ashley E. Davis Assistant General Counsel Florida Bar No. 48032 Florida Department of State R.A. Gray Building 500 S. Bronough Street Tallahassee, Florida 32399-0250 Tel. 850-245-6536 Fax 850-245-6127 Counsel for Defendants Secretary of State Kenneth W. Detzner and Director of Division of Elections Gisela Salas Blaine H. Winship Special Counsel Florida Bar No. 356913 Office of the Attorney General of Florida The Capitol, Suite PL-01 Tallahassee, Florida 32399-1050 Tel. 850-414-3300 Fax 850-488-4872 Attorney for All Defendants


7

Miami, Florida 33137-3227 Tel. 786-363-2700 Fax 786-363-1108 Attorneys for All Plaintiffs


I HEREBY CERTIFY that the foregoing document was served by filing in this Court’s CM/ECF system this 10th day of August, 2012, on all attorneys of record.

/s/ Farrah R. Berse _________ Attorney


Exhibit A


1















Applications.”






control.









2







(3) Registration.























3

























registration agents. If the 10th day falls on a weekend, holiday, or other day on which the Division or the supervisor





4














agents.
















5










being terminated.



6291.


Elections.















6













(8) Complaints.






F.A.C.










7


organization.







IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIA

STATE OF FLORIDAOffice of the Secretary of State500 S. Bronough StreetTallahassee, FL 32399-0250,

Plaintiff, Civil No. 1:11-cv-01428-CKK-MG-ESH

v.

UNITED STATES OF AMERICA and ERIC H.HOLDER, JR., in his official capacity asAttorney General of the United States,

Defendants.

SECONDTHIRD AMENDED COMPLAINT FOR DECLARATORY JUDGMENT

The State of Florida, by and through its Secretary of State Kurt S. BrowningKenneth

W. Detzner, seeks a declaratory judgment that recently-enacted changes in the Florida

Election Code are entitled to preclearance under Section 5 of the Voting Rights Act of 1965,

as amended, 42 U.S.C. § 1973c (“VRA”). The changes have neither the purpose nor will they

have the effect of denying or abridging the right to vote on account of race, color, or

membership in a language minority. Alternatively, the State of Florida seeks a declaratory

judgment that the preclearance obligation of Section 5 and the coverage formula of

Section 4(b) of the VRA, 42 U.S.C. § 1973b(b), are unconstitutional, as well as a

permanent injunction enjoining their enforcement. Subjecting Florida counties and other

jurisdictions covered exclusively under the language minority provisions of the VRA to

preclearance is not a rational, congruent, or proportional means of enforcing the Fourteenth and/or

Fifteenth Amendments and violates the Tenth Amendment and Article IV of the U.S. Constitution.


I. PARTIES

Plaintiff, the State of Florida, is a State of the United States of America and1.

brings this action on behalf of itself and its citizens.

Kurt SKenneth W. BrowningDetzner, in his official capacity as the Secretary2.

of State of Florida, is the chief elections officer of the State of Florida. Secretary

BrowningDetzner has the responsibility, inter alia, to obtain and maintain uniform

implementation of the election laws, to ensure compliance with federal election laws, and to

require the supervisors of elections to perform their official duties.

Defendants are the United States of America and Eric H. Holder, Jr., in his3.

official capacity as Attorney General of the United States. Attorney General Holder is

charged with certain responsibilities related to Section 5 on behalf of the Department of

Justice (“DOJ”), including the defense of Section 5 declaratory judgment actions brought in

the United States District Court for the District of Columbia (“DDC”).

II. BACKGROUND

A. The Voting Rights Act

In 1965, Congress enacted the VRA to enforce the substantive guarantee of the4.

Fifteenth Amendment. See Pub. L. No. 89-110, 79 Stat. 437 (1965).

Section 2 of the VRA enforced the substantive guarantee of the Fifteenth5.

Amendment by outlawing any “voting qualification or prerequisite to voting, or standard,

practice, or procedure . . . imposed or applied . . . to deny or abridge the right of any citizen of

the United States to vote on account of race or color.” Id. § 2, 79 Stat. at 437. This

prohibition applies nationwide. Id.

2


Other provisions of the VRA apply only to certain jurisdictions pursuant to a6.

geographic “coverage formula” established by the statute.

Section 4(b) set forth a formula under which “covered” jurisdictions would be7.

subjected to the “preclearance” obligation of Section 5. Section 4(b) covered “any State or any

political subdivision of a state which . . . the Attorney General determine[d] maintained on

November 1, 1964, any [prohibited] test or device, and with respect to which . . . the Director

of the Census determine[d] that less than 50 percentum of the persons of voting age residing

therein were registered on November 1, 1964, or that less than 50 percentum of such persons

voted in the presidential election of November 1964.” Id. § 4(b), 79 Stat. at 438.

Under Section 4(b)’s formula, seven States (Alabama, Alaska, Georgia,8.

Louisiana, Mississippi, South Carolina, and Virginia), forty counties in North Carolina, as well

as several counties in Arizona, Hawaii, and Idaho, became “covered” jurisdictions.

Section 5 required these covered jurisdictions to “preclear” any new law or any9.

change to an existing law involving “any voting qualification or prerequisite to voting, or

standard, practice, or procedure with respect to voting different from that in force or effect on

November 1, 1964.” Id. § 5, 79 Stat. at 439. The covered jurisdictions could obtain

“preclearance” by submitting the proposed change to DOJ or by filing a declaratory-judgment

action before a three-judge panel of the DDC. Id.

Preclearance could be granted by DOJ or the DDC only if the voting change10.

“[did] not have the purpose and [would] not have the effect of denying or abridging the right to

vote on account of race or color.” Id.

Section 5 was originally a “temporary provision[] . . . expected to be in effect for11.

only five years.” Nw. Austin Mun. Util. Dist. No. 1 v. Holder, 129 S. Ct. 2504, 2510 (2009).

3


In 1970, however, Congress reauthorized the VRA for another five years. See Voting Rights

Act Amendments of 1970, Pub. L. No. 91-285, 84 Stat. 314 (1970).

In 1975, Congress reauthorized the VRA for another seven years. Act of Aug. 6,12.

1975, Pub. L. No. 94-73, 89 Stat. 400.

In reauthorizing the VRA in 1975, Congress extended Section 4(b)’s coverage13.

formula—and thus Section 5’s preclearance obligation—to any jurisdiction that had maintained

a prohibited “test or device” on November 1, 1972, and had voter registration on that date or

turnout in the 1972 presidential election of less than 50 percent. Id. § 202, 89 Stat. at 401.

In 1975, Congress also extended Section 5’s preclearance obligation by14.

expanding the definition of “test or device” to include the provision of election materials only in

English by jurisdictions in which more than five percent of the voting age citizens were

members of “a single language minority.” Id. § 203, 89 Stat. at 401-02.

In 1982, Congress reauthorized the VRA for another twenty-five years. Voting15.

Rights Act Amendments of 1982, Pub. L. No. 97-205, 96 Stat. 131 (1982).

In 2006, Congress again reauthorized the VRA for another twenty-five years.16.

Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and

Amendments Act of 2006, Pub. L. No. 109-246, 120 Stat. 577 (2006) (“2006 Reauthorization

Act”).

In reauthorizing the VRA in 2006, Congress imposed preclearance requirements17.

under the same coverage formulas adopted in 1965, 1970, and 1975.

Congress also added new provisions regarding the standard a covered18.

jurisdiction must meet for obtaining preclearance. See 42 U.S.C. § 1973c(b)-(d).

4


The 2006 Reauthorization Act amended Section 5 to require covered19.

jurisdictions to prove that a voting change does not have the purpose or effect of

“diminishing the ability of any citizens of the United States on account of race or color, or

[membership in a language minority group] to elect their preferred candidates of choice.” Id.

§ 1973c(b); id. § 1973c(d) (noting that this provision was enacted “to protect the ability of

such citizens to elect their preferred candidates of choice”).

Before 2006, a covered jurisdiction could obtain preclearance under a more20.

flexible standard: by proving through “the totality of the circumstances,” Georgia v. Ashcroft,

539 U.S. 461, 480-85 (2003), that the change would not “lead to a retrogression in the

position of racial minorities with respect to their effective exercise of the electoral franchise.”

Beer v. United States, 425 U.S. 130, 141 (1976).

The 2006 Reauthorization Act further amended Section 5 to require a covered21.

jurisdiction to prove that the voting change does not have “any discriminatory purpose.” 42

U.S.C. § 1973c(c). Prior to this amendment, Section 5 had been interpreted to permit

preclearance of voting changes “enacted with a discriminatory but nonretrogressive purpose.”

Reno v. Bossier Parish School Bd., 528 U.S. 320, 341 (2000).

This prior preclearance standard limited “the substantial federalism costs that the22.

preclearance procedure already exacts” and avoided “raising concerns about § 5’s

constitutionality.” Id. at 336.

B. Florida and the Voting Rights Act

Florida is a “partially covered” state under the VRA because five Florida23.

counties are subject to the preclearance requirements of Section 5. Specifically, Collier,

5


Hardee, Hendry, Hillsborough, and Monroe Counties have been designated as covered

jurisdictions under Section 4 of the Voting Rights Act, 42 U.S.C. § 1973b(b).

These five Florida jurisdictions are covered jurisdictions based on the Attorney24.

General’s determination that, on November 1, 1972, these jurisdictions provided materials and

information relating to the electoral process only in the English language; more than five

percent of the citizens of voting age were members of a single language minority; and less

than half of the voting-age citizens in these jurisdictions were either registered to vote or

voted in the Presidential election of November 1972.

Based on the same formula originally adopted in 1975 and still found in25.

Section 4(b) of the Voting Rights Act, these five counties remain covered jurisdictions

subject to the preclearance requirements of Section 5.

To obtain preclearance, Florida must establish that the voting changes in the26.

five jurisdictions do not have the “purpose of or will have the effect of diminishing the

ability of any citizens of the United States on account of race or color . . . to elect their

preferred candidates of choice,” 42 U.S.C. § 1973c(b), even though Florida is itself not a

covered jurisdiction, and even though the five Florida counties are covered only under the

VRA’s language minority provisions, see id., (f)(2).

C. The 2011 Florida Voting Changes

On May 19, 2011, Committee Substitute for Committee Substitute for House27.

Bill No. 1355, an omnibus bill revising the Florida Election Code, became law. This law has

been codified at Chapter 2011-40, Laws of Florida (the “Act”).

The Act contains revisions to Florida statutes governing third-party voter28.

registration organizations (§ 97.0575, Fla. Stat.), state constitutional amendments proposed by

6


initiative (§ 100.371, Fla. Stat.), election-day address changes (§ 101.045, Fla. Stat.), and

early voting (§ 101.657, Fla. Stat.). These provisions are collectively referred to as the “Four

Voting Changes.”

On May 19, 2011, Florida Secretary of State Kurt S. Browning issued29.

Directive 2011-01 to the State supervisors of elections. The Directive described the changes

made by the Act and provided guidance to the supervisors of elections as to their duties

under the Act. See Exhibit A.

On June 8, 2011, Secretary Browning submitted the Act to the United States30.

Department of Justice for administrative preclearance. On July 29, 2011, the Four Voting

Changes were withdrawn from administrative preclearance, while the other 76 provisions of

the Act were kept before the Department of Justice for preclearance. On August 8, the

Department of Justice precleared these 76 provisions of the Act.

After holding a publicly-noticed rule development workshop and accepting31.

extensive public comment from affected parties, the Florida Department of State adopted

Rule 1S-2.042 on October 13, 2011. See Third-Party Voter Registration Organizations, Fla.

Admin. Code R. 1S-2.042 (2011) (Exhibit B).. This version of Rule 1S-2.042 iswas an

administrative rule that implementsimplemented the revisions to the Florida statute governing

third-party voter registration organizations, which is one of the Four Voting Changes for

which preclearance is sought in this action. Except in the five covered counties, Rule 1S-

2.042 will taketook effect on November 2, 2011.

On August 8, 2011, the Department of Justice granted administrative32.

preclearance to all provisions of the Act other than the Four Voting Changes. On March

7


21, 2012, the Department of Justice granted administrative preclearance to the changes

related to the state constitutional amendments proposed by initiative (§ 100.371, Fla. Stat.).

On May 31, 2012, District Judge Robert Hinkle granted in part and denied in part a motion

for a preliminary injunction and preliminarily enjoined certain provisions of Fla. Stat. §

97.0575 and Rule 1S-2.042. See League of Women Voters of Florida v. Browning, ---

F.Supp.2d ----, 2012 WL 1957793, (N.D. Fla. May 31, 2012).

On August 7, 2012, the Florida Department of State noticed an emergency rule33.

that modified Rule 1S-2.042 to conform to the terms of Judge Hinkle’s preliminary injunction

(“Emergency Rule 1SER12-01”). See Exhibit A. Emergency Rule 1SER12-01 becomes

effective on August 15, 2012. See Emergency Rule 1SER12-01(9).

In addition, Emergency Rule 1SER12-01 made two minor changes to Rule 1S-34.

2.042 to address concerns raised by the parties in this case and in Browning. See Emergency

Rule 1SER12-01(5)(c) (providing that the Secretary of State “will not refer” a violation to the

Attorney General if force majeure or impossibility of performance is shown); Emergency Rule

1SER12-01(8)(d) (providing that the Secretary of State will not refer a violation to the

Attorney General “unless there is evidence that the applicant entrusted the voter registration

application to a third-party voter registration organization”).

On August 7, 2012, the Florida Department of State also submitted a proposed35.

rule identical to Emergency Rule 1SER12-01 for publication in the Florida Administrative

Weekly and adoption as a final rule according to the rulemaking process set forth in Fla. Stat.

§ 120.54 (“Final Rule 1S-2.042”). See Exhibit B.

On August 10, 2012, the parties in Browning filed a joint motion for a36.

permanent injunction with Judge Hinkle in the Northern District of Florida. See Exhibit C.

8


The parties informed the court that they had resolved their dispute and they asked the court to

convert its preliminary injunction to a permanent injunction. As a result, certain provisions of

Fla. Stat. § 97.0575 will be permanently enjoined, but the remainder of Fla. Stat. § 97.0575

will be left in place (the “Non-Enjoined Statutory Changes”).

The Non-Enjoined Statutory Changes are:37.

Fla. Stat. § 97.0575(1)(a)•Fla. Stat. § 97.0575(1)(b)•Fla. Stat. § 97.0575(1)(c), except to the extent it requires•identification of volunteer registration agents or employeeregistration agents who solicit but do not collect or handle voterregistration applicationsFla. Stat. § 97.0575(2)•Fla. Stat. § 97.0575(3)(a), except to the extent it requires delivery of•an application within 48 hours—or any period less than 10 days;Fla. Stat. § 97.0575(3)(b)•Fla. Stat. § 97.0575(4)•Fla. Stat. § 97.0575(5), except to the extent it requires third-party•voter registration organizations to report on the number of voterregistration applications used by, distributed to, or collected fromregistration agentsFla. Stat. § 97.0575(6)•Fla. Stat. § 97.0575(7)•

32. Among other things, Rule 1S-2.042 clarifies that the registration requirement appliesonly to those organizations that “solicit[] for collection or collect[] voter registrationapplications from Florida voter registration applicants.” Id. The rule also outlines theprocess for the submission of completed voter registration applications, which will beaccepted either in person or by mail. Id. Finally, the rule adopts various forms related tothe registration and reporting requirements. See Exhibit B.

The Non-Enjoined Statutory Changes and Emergency Rule 1SER12-01 are38.

collectively referred to as the “Third Party Changes.”

The Third Party Changes, the changes related to address changes at the39.

polling place (§ 101.045, Fla. Stat.), and the changes related to early voting (§ 101.657, Fla.

Stat.) are collectively referred to as the Three Voting Changes.

9


33. Florida brings this action pursuant to 42 U.S.C. § 1973c and 28 U.S.C. §40.

2201,

seeking a declaratory judgment that the FourThree Voting Changes neither have the purpose

nor will have the effect of denying or abridging the right to vote on account of race, color, or

membership in a language minority, thereby allowing the State to uniformly enforce its

elections laws.

III. JURISDICTION AND VENUE

34. This Court has subject matter jurisdiction under Section 14(b) of the Voting41.

Rights Act, as amended, 42 U.S.C. § 1973l, and under 28 U.S.C. § 1331, because this action

arises under the Constitution and laws of the United States. This Court has jurisdiction to

render declaratory relief under 28 U.S.C. § 2201.

35. Venue is proper in this Court pursuant to Section 5 of the Voting Rights42.

Act and 28 U.S.C. § 2284. This action is properly determinable by a three judge district court

in accordance with Section 5 and 28 U.S.C. § 2284.

IV. PRECLEARANCE ALLEGATIONS

36. The Act, Chapter 2011-40, Laws of Florida, revises numerous statutes43.

within the Florida Elections Code (Chapters 97-106 of the Florida Statutes). The Act

addressed a wide range of subjects, including registration of minor political parties, political

advertisement disclaimers, and reporting of election results by supervisors of elections.

37. The State of Florida seeks a declaratory judgment, pursuant to Section 5 of44.

the VRA, related to the FourThree Voting Changes: Section 41 (addressing third-party voter

10

1 In this Third Amended Complaint, “Section 4” refers to the non-enjoined provisionsof Section 4 of the Act.


registration organizations) together with Emergency Rule 1SSER12-2.04201, which

administratively implements that statutory provision; Section 23 (addressing state

constitutional amendments proposed by initiative); Section 26 (addressing change of

residence); and Section 39 (addressing early voting). This action is filed for the purpose of

determining an actual controversy between the parties within the Court’s jurisdiction, and to

allow the State to uniformly enforce duly-enacted amendments to the Florida Election Code.

38. As described below, each of the FourThree Voting Changes applies45.

uniformly to all Floridians regardless of race, color, or membership in a language minority.

These provisions were not adopted with the purpose and will not have the effect of denying

or abridging the right to vote on account of race, color, or membership in a language minority.

A. Section 4 (Third-Party Voter Registration Organizations)

(i) Benchmark Practice — Third-Party Voter Registration Organizations

39. Prior to 1995, only state officials and individuals deputized by supervisors46.

of elections as registrars were permitted to collect voter registration applications in Florida.

The Florida Legislature’s first comprehensive regulation of third-party voter registration

organizations came in 2005 with the enactment of section 97.0575, Florida Statutes. This

statute, as amended in 2007, represents the “benchmark” practice for purposes of Section 5.

40. Under the benchmark practice, a “third-party voter registration47.

organization” is defined as “any person, entity, or organization soliciting or collecting voter

registration applications” other than a person registering, or collecting an application from,

that person’s spouse, child or parent; or a person who registers to vote or collects voter

registration applications as an employee or agent of the Florida Department of State’s

11


Division of Elections (“Division”), a supervisor of elections, the Department of Highway

Safety and Motor Vehicles, or a voter registration agency. § 97.021(37), Fla. Stat.

41. “Prior to engaging in any voter registration activities,” the benchmark48.

practice

required each third-party voter registration organization to name a registered agent in the state

and submit additional information to the Division. § 97.0575(1), Fla. Stat. Specifically, the

benchmark practice required each third-party voter registration organization to submit to the

Division a form containing:

the name of the registered agent and the name of thoseindividuals responsible for the day-to-day operation of the third-party voter registration organization, including, if applicable, thenames of the entity’s board of directors, president, vice president,managing partner, or such other individuals engaged in similarduties or functions.

§ 97.0575(1), Fla. Stat.

42. Because each third-party voter registration organization that collected voter49.

registration applications “serves as a fiduciary to the applicant,” the benchmark practice

required each organization to ensure that any application entrusted to the organization,

“irrespective of party affiliation, race, ethnicity, or gender,” is “promptly delivered to the

division or the supervisor of elections.” § 97.0575(3), Fla. Stat.

43. The benchmark practice provided for fines on any third-party voter50.

registration organization that failed to promptly deliver applications that it collected. §

97.0575(3), Fla. Stat. The applicable fines were $50 for each application received by a

supervisor of elections or the Division more than ten days after the applicant delivered the

completed application to the third-party voter registration organization; $100 for each

application collected by a third-party voter registration organization before book closing for

12


any given election for federal or state office and received by a supervisor of elections or the

Division after the book-closing deadline for that election; and $500 for each application

collected by a third-party voter registration organization that is not submitted to the Division

or a supervisor of elections. § 97.0575(3), Fla. Stat. The amounts of these fines increased to

$250, $500, and $1,000, respectively, for willful violations. § 97.0575(3), Fla. Stat. The

benchmark practice did not impose any civil or criminal penalties on a third-party voter

registration organization solely for failure to register with the Division. § 97.0575(2), Fla. Stat.

44. The benchmark practice capped at $1,000 the maximum aggregate fine that51.

could be assessed against any third-party voter registration organization (including affiliate

organizations) for all violations committed in a calendar year. § 97.0575(3), Fla. Stat. The

benchmark practice required the Secretary of State to waive the fines upon a showing that the

failure to deliver the application promptly was based upon force majeure or impossibility of

performance and provided for a three-fourths reduction in the applicable fines for third-party

voter registration organizations that had complied with the statute’s registration requirements.

§ 97.0575(3), Fla. Stat. Under the benchmark practice, the Division had authority to

investigate violations of the third-party voter registration organization statute, assess civil

fines imposed under the statute, and enforce the fines “through any appropriate legal

proceedings.” § 97.0575(4)(b), Fla. Stat.

45. Finally, the benchmark practice required third-party voter registration52.

organizations to submit a report to the Division of Elections on or before the 15th day after

the end of each calendar quarter providing the date and location of any organized voter

registration drives conducted by the organization in the prior calendar quarter. § 97.0575(1),

Fla. Stat.

13


(ii) Changes Sought to Be Precleared — Third-Party Voter Registration Organizations

46. The benchmark practices described above are largely preserved by Section53.

4 of the Act, Chapter 2011-40. The third-party voter registration statute, as amended,

continues to require third-party voter registration organizations to register with the Division of

Elections “before engaging in any voter registration activities.” § 97.0575(1), Fla. Stat. As

under the benchmark, third-party voter registration organizations must promptly deliver voter

registration applications that they collect. § 97.0575(3)(a), Fla. Stat. The applicable fines for

untimely delivery of applications are unchanged, as is the maximum aggregate fine of $1,000

for all violations committed by a third-party voter registration organization and its affiliates in

a calendar year. § 97.0575(3), Fla. Stat.

47. The principal change in Section 4 relates to the time period for third-party54.

voter registration organizations to submit completed voter registration applications to the

Division or a supervisor of elections. § 97.0575(3), Fla. Stat. Where the benchmark required

completed applications to be submitted “promptly” and imposed a $50 fine for applications

received more than ten days after they were collected, Section 4 imposes a $50 fine for

applications received by the Division or a supervisor of elections more than 48 hours after the

applicant delivers the completed voter registration application to the organization (or on the

next business day, if the office is closed). § 97.0575(3)(a), Fla. Stat. Section 4 also removes

the potential for a three-fourth reduction in fines for third-party voter registration

organizations that have complied with the registration requirements but provides that force

majeure or impossibility of performance is an affirmative defense to a failure to timely

deliver a completed application. § 97.0575(3)(b), Fla. Stat. Under Section 4, the Secretary of

State may waive the fines assessed against an organization upon a showing of force majeure

14


or impossibility of performance, which is now an affirmative defense. § 97.0575(3)(b), Fla.

Stat; see also Emergency Rule 1SER12-01(5)(c) (providing that the Secretary of State “will

not refer” a violation to the Attorney General if force majeure or impossibility of performance

is shown).

48. Section 4 also assigns new administrative responsibilities to the Division55.

and supervisors of elections regarding distribution of and accounting for voter registration

applications (§ 97.0575(2), (5), Fla. Stat.), requires each registration agent of a third-party

voter registration organization to provide a sworn statement stating that the agent will obey

all state laws and rules regarding the registration of voters (§ 97.0575(1)(d), Fla. Stat.),

requires voter registration forms provided to each third-party voter registration organization to

contain information identifying the third-party voter registration organization to which the

forms are provided (§ 97.0575(2), Fla. Stat.), and requires supervisors of elections to provide

information to the Division on voter registration forms provided to and received from each

third-party voter registration organization. (§ 97.0575(2), Fla. Stat.)

49. Finally, Section 4 shifts enforcement responsibility of the third-party voter56.

registration statute from the Division to the Florida Attorney General. § 97.0575(4), Fla. Stat.

If the Secretary of State reasonably believes that a person has committed a violation of the

statute, the Secretary may refer the matter to the Attorney General. § 97.0575(4), Fla. Stat.

The Attorney General may institute a civil action for a violation of, or to prevent a violation

of, the statute. § 97.0575(4), Fla. Stat.

(iii) Purpose and Effect — Third-Party Voter Registration Organizations

50. The changes to the third-party voter registration statute contained in Section57.

4 were adopted to address Florida’s legitimate interests in: 1) ensuring that all voter

15


registration applications are properly and timely submitted; 2) holding third-party voter

registration organizations accountable for the applications they collect; and 3) preventing

instances of fraud. The changes were not adopted for the purpose of denying or abridging the

right to vote on account of race, color, or membership in a language minority.

51. The changes in Section 4 apply equally to every group meeting the58.

definition of a third-party voter registration organization. Moreover, the benchmark

requirement that each third-party voter registration organization ensure the prompt delivery of

all voter registration applications they collect, “irrespective of party affiliation, race, ethnicity,

or gender,” — remains unchanged. § 97.0575(3), Fla. Stat. Section 4 therefore protects the

right to vote of all Floridians and does not have the effect of denying or abridging the right to

vote on account of race, color, or membership in a language minority.

B. Section 23 (Constitutional Amendments Proposed by Initiative)

(i) Benchmark Practice — Constitutional Amendments Proposed by Initiative

52. Under the benchmark practice, a constitutional amendment proposed by initiative

shall be placed on the ballot for the general election provided the initiative is filed with the

Secretary of State no later than February 1 of the year the general election is held. §

100.371(1), Fla. Stat. A petition is deemed to be filed on the date the Secretary of State

determines that valid and verified petition forms have been signed by the constitutionally

required number and distribution of electors. § 100.371(1), Fla. Stat. Each signature on an

initiative petition must be dated and is valid for a period of four years following that date. §

100.371(3), Fla. Stat.

53. The benchmark practice required the sponsor of the petition to submit signed and

dated forms to the appropriate supervisor of elections for verification of the number of

16


registered electors whose valid signatures appear. § 100.371(3), Fla. Stat. The supervisor of

elections must verify the signatures within 30 days. § 100.371(3), Fla. Stat. A supervisor may

verify that a signature is valid only if it is an original signature; accurately records the date on

which the form was signed; accurately sets forth the elector’s name, address, county, and

voter registration number or date of birth; and if the elector is, at the time he or she signed

the form, a duly-qualified and registered elector authorized to vote in the county in which his

or her signature was submitted. § 100.371(3), Fla. Stat.

54. The benchmark practice also provided a statutory procedure for an elector to

revoke his or her signature within 150 days of the date on which he or she signed the

petition. § 100.371(6), Fla. Stat. This signature revocation procedure, however, was

invalidated by the Florida Supreme Court on state law grounds in Browning v. Florida

Hometown Democracy, Inc., PAC, 29 So. 3d 1053 (Fla. 2010).

(ii) Changes Sought to Be Precleared — Constitutional Amendments Proposed by Initiative

55. The changes contained in Section 23 amend the benchmark practice by clarifying

that the “appropriate” supervisor of elections to whom signed petitions must be submitted for

verification is the supervisor of elections for the county of residence listed by the person

signing the form. § 100.371(3), Fla. Stat. Section 23 provides that a signature on a petition

form is valid for a period of two years following the date of the signature, rather than four

years. § 100.371(3), Fla. Stat. Section 23 imposes a new obligation on local supervisors of

elections by requiring each supervisor to notify a petition sponsor of misfiled petitions. §

100.371(3), Fla. Stat. Section 23 also amends the benchmark practice by adding a

requirement that supervisors verify that a petition form sets forth the elector’s city of

residence. § 100.371(3), Fla. Stat.

17


56. The changes in Section 23 also amend the benchmark requirement that a petition

signer be a registered voter of the county where the petition was submitted for verification at

the time the petition was signed. Under Section 23, the requirement has been broadened so

that a signature may be verified if the elector is a duly-qualified and registered voter of the

State of Florida (rather than the specific county) both at the time of signing and at the time of

verification.

57. Finally, Section 23 repeals the statutory provisions related to signature revocation

that have been invalidated by the Florida Supreme Court. § 100.371(6), Fla. Stat.

(iii) Purpose and Effect — Constitutional Amendments Proposed by Initiative

58. The changes to the statute governing constitutional amendments

proposed by initiative contained in Section 23 were adopted for the purpose of 1) clarifying

the signature verification responsibilities of county supervisors of elections; 2) repealing

statutory language related to signature revocation that has been judicially invalidated; and 3)

ensuring that constitutional amendments proposed by initiative demonstrate significant

contemporaneous support for the proposed changes. They were not adopted with the purpose

of denying or abridging the right to vote on account of race, color, or membership in a

language minority.

59. The changes in Section 23 apply equally to all Floridians proposing a

constitutional amendment by initiative or signing a signature petition without respect to the

race, color, or language minority status of the signatory. The changes will not have the effect


language minority.

18


CB. Section 26 (Change of Residence)

(i) Benchmark Practice — Change of Residence

60. Under the benchmark practice, a person may only vote in the election59.

precinct or district in which the person has his or her legal residence and in which the person

is registered to vote. § 101.045(1), Fla. Stat. An elector who has moved from the address

listed on the person’s voter registration record must provide notification of the move to the

supervisor of elections. § 97.1031, Fla. Stat. An elector who has moved from the precinct in

which the elector is registered, but who has not provided notification of the move to the

supervisor of elections before the day of an election, may nonetheless be permitted to vote in

the precinct to which he or she has moved provided the elector completes an affirmation of

change of legal residence. § 101.045(2)(a), Fla. Stat.

61. Under the benchmark practice, an elector who has completed an affirmation60.

of change of legal residence may be permitted to vote in the precinct to which he or she has

moved his or her legal residence. § 101.045(2), Fla. Stat. If the elector’s registration can be

verified, the elector is entitled to vote a regular ballot. § 101.045(2)(d), Fla. Stat. If the

elector’s eligibility to vote cannot be determined, he or she is entitled to cast a provisional

ballot. § 101.045(2)(d), Fla. Stat. As an alternative to the affirmation of change of address, an

elector may complete a voter registration application that indicates the change of address of

legal residence. § 101.045(2)(c), Fla. Stat.

62. Upon receipt of the affirmation or application certifying a change of61.

address of legal residence, the supervisor of elections shall, as soon as practicable, make the

necessary changes in the statewide voter registration system to indicate the change in address.

§ 101.045(2)(d), Fla. Stat.

19


(ii) Changes Sought to Be Precleared — Change of Residence

63. The changes contained in Section 26 preserve the benchmark practice for62.

all electors whose change of residence is within the same county and for active uniformed

services voters and members of their families. § 101.045(2), Fla. Stat. Section 26 amended

the benchmark practice only for electors who have changed their legal residence, have not

previously notified the supervisor of elections of the change of address, and whose change of

address is from outside the county. § 101.045(2)(b), Fla. Stat. An elector in these

circumstances may not change his or her legal residence at the polls and vote a regular ballot,

but is entitled to vote a provisional ballot upon completion of the affirmation of change of

legal residence. § 101.045(2)(b), Fla. Stat.

64. The standards for canvassing a provisional ballot are unchanged by the63.

Act. A provisional ballot “shall be counted unless the canvassing board determines by a

preponderance of evidence that the person was not entitled to vote.” § 101.048(2)(a), Fla.

Stat. In determining whether a person casting a provisional ballot is entitled to vote, the

county canvassing board shall review the information provided in the Voter’s Certificate and

Affirmation, any written evidence provided by the person casting the ballot, any other

evidence presented by the supervisor of elections, and, in the case of a challenge, any

evidence presented by the challenger. § 101.048(2)(a), Fla. Stat.

(iii) Purpose and Effect — Change of Residence

65. The changes to the statute governing change of residence provisions64.

contained in Section 26 were adopted as an anti-fraud measure, to protect against the

possibility of a single elector casting ballots in more than one county. They were not adopted

20


with the purpose of denying or abridging the right to vote on account of race, color, or

membership in a language minority.

66. The changes in Section 26 apply equally to every elector regardless of race,65.

color, or membership in a language minority. The only electors affected by the changes in

Section 26 are those who (1) have changed their legal residence from one county to another

county; (2) have failed to notify the supervisor of elections regarding the change of residence

(in writing, by telephone, or by electronic means) at any time prior to election day; and (3)

are not an active uniformed services voter or a member of his or her family.

67. Even the limited number of electors affected by the changes in Section 2666.

will not have their right to vote denied or abridged on account of race, color, or membership

in a language minority. Each such elector is entitled to cast a provisional ballot, which “shall

be counted” by the canvassing board if the elector was registered and entitled to vote at the

precinct where the person cast his or her vote. § 101.048, Fla. Stat. Because the canvassing

board will have the elector’s certificate and affirmation before it, Secretary Browning does

not anticipate any need in the ordinary case for a voter to provide additional information

regarding eligibility to the canvassing board (although the option remains available under

section 101.048, Florida Statutes). An elector whose regular ballot would have been lawfully

cast under the benchmark practice will therefore have his or her provisional ballot counted

under the new statute.

68. The rejection of a provisional ballot cast by an elector who was not67.

registered, or who was not entitled to cast the ballot, or who had already voted in the

election, does not amount to a denial or abridgement of the right to vote. Section 26 does not

21


have the effect of denying or abridging the right to vote on account of race, color, or

membership in a language minority.

DC. Section 39 (Early Voting)

(i) Benchmark Practice — Early Voting

69. The benchmark practice for early voting in Florida was enacted by the68.

Florida Legislature in 2005 and is codified at Section 101.657, Florida Statutes. Under the

benchmark practice, each supervisor of elections shall allow an elector to vote early “as a

convenience to the voter.” § 101.657(1)(a), Fla. Stat. The supervisor of elections shall

designate each early voting site no later than 30 days prior to an election. § 101.657(1)(b),

Fla. Stat. Early voting must be provided at the main office of the supervisor of elections, and

may be provided at a branch office, city hall, or permanent public library facility. §

101.657(1)(a), Fla. Stat.

70. The benchmark practice generally provides for early voting to begin “on69.

the 15th day before an election and end on the 2nd day before an election.” § 101.657(1)(d),

Fla. Stat. During the applicable period, the benchmark practice requires early voting to be

provided “for 8 hours per weekday and 8 hours in the aggregate each weekend at each site”

— a total of 96 hours of early voting. § 101.657(1)(d), Fla. Stat. Early voting sites may open

no sooner than 7 a.m. and close no later than 7 p.m. on each applicable day. § 101.657(1)(d),

Fla. Stat. All early voting sites in a county shall be open on the same days for the same

amount of time. § 101.657(1)(c), Fla. Stat. Any person in line at the closing of an early

voting site is allowed to vote. § 101.657(1)(c), Fla. Stat.

22


(ii) Changes Sought to Be Precleared — Early Voting

71. Section 39 preserves the option of early voting as a convenience to the70.

voter and

provides increased flexibility to supervisors of elections regarding the scheduling of early

voting in each county. Under Section 39, early voting shall now begin on the 10th day before

an election that contains state or federal races (rather than the 15th day) and end on the 3rd

day before the election (rather than the 2nd day). § 101.657(1)(d), Fla. Stat. Early voting shall

be provided for no less than 6 hours and no more than 12 hours per day at each site. §

101.657(1)(d), Fla. Stat. Section 39 repeals the prior provision requiring that all early voting

sites in a county be open on the same days for the same amount of time. § 101.657(1)(c), Fla.

Stat. Section 39 also repeals the provision limiting early voting sites to operation between the

hours of 7 a.m. and 7 p.m. § 101.657(1)(d), Fla. Stat.

72. For elections not held in conjunction with a state or federal election, the71.

statute

provides supervisors of elections the discretion to provide early voting and to determine the

hours of operation of early voting sites. § 101.657(1)(d), Fla. Stat.

(iii) Purpose and Effect — Early Voting

73. The changes to the early voting statute contained in Section 39 were72.

adopted to

expand access to early voting and provide each supervisor of elections additional flexibility

regarding the scheduling of early voting. The changes to the early voting statute contained in

Section 39 were not adopted with the purpose of denying or abridging the right to vote on


23


74. Section 39 provides for expanded access to early voting in several ways.73.

Most

significantly, Section 39 mandates additional hours of weekend early voting. Under Section

39, weekend early voting is increased from 16 total hours to a minimum of 18 hours and as

many as 36 hours. § 101.657(1)(d), Fla. Stat. By more than doubling the maximum number

of weekend early voting hours, Section 39 provides for increased accessibility to the

convenience of early voting.

75. Section 39 also increases the maximum number of weekday early voting74.

hours: from 8 hours to 12 hours. § 101.657(1)(d), Fla. Stat. This change provides additional

early voting opportunities for electors whose work schedules do not allow time to vote during

the traditional 8 hour work day.

76. If precleared, Section 39 will also mandate 6-12 hours of Sunday early75.

voting in Florida’s five counties covered by Section 5 of the Voting Rights Act. None of the

covered counties offered Sunday early voting in the 2008 or 2010 primary or general elections.

77. The changes to early voting contained in Section 39 will not have the76.

effect of denying or abridging the right to vote on account of race, color, or membership in a

language minority. Indeed, Section 39 will likely result in the greatest benefit to low-income

residents in the covered counties who may have found it more difficult to vote early during

the limited 8 hour window allowed under the benchmark practice.

V. CAUSES OF ACTION

COUNT ONE: DECLARATORY JUDGMENT — THIRD-PARTYVOTER REGISTRATION

78. The State of Florida realleges, adopts, and incorporates by reference all77.

paragraphs 1 through 77 above.

24


79. The coverednon-enjoined changes to section 97.0575, Florida Statutes,78.

were adopted for the purpose of 1) ensuring that all voter registration applications are

properly and timely submitted; 2) holding third-party voter registration organizations

accountable for the applications they collect; and 3) preventing instances of fraud. The

changes were not adopted for any discriminatory purpose.


when compared to Florida’s existing or “benchmark” practices, do not lead to a

“retrogression” in the position of racial minorities in that they do not have the effect of


minority.


accordingly have neither the purpose nor will have the effect of denying or abridging the right

to vote on account of race, color, or membership in a language minority.

82. The coverednon-enjoined changes to section 97.0575, Florida Statutes, do81.

not and will not prohibit any citizen of the United States from electing his or her preferred

candidate of choice.


apply uniformly to all Floridians regardless of race, color, or membership in a language

minority.

84. The coverednon-enjoined changes to section 97.0575, Florida Statutes, do83.

not result in any discriminatory effect that is statistically significant.

85. FloridaEmergency Rule 1SSER12-2.04201—the implementing regulation84.

of section 97.0575, Florida Statutes—likewise has neither the purpose nor will have the

25


effect of denying or abridging the right to vote on account of race, color, or membership in a

language minority.

86. The State of Florida is entitled to a judgment that the coverednon-enjoined85.

changes to section 97.0575, Florida Statutes, and the section’s implementing regulation,

FloridaEmergency Rule 1SSER12-2.04201, neither have the purpose nor will have the effect


language minority under Section 5 of the Voting Rights Act of 1965, as amended, 42 U.S.C.

§ 1973c, and that Florida’s covered jurisdictions may administer these covered changes

without further delay.


Convene a three-judge district court to hear the matters raised in thisA.

Complaint;

Enter a declaratory judgment that the coverednon-enjoined changes toB.

section 97.0575, Florida Statutes, (the Non-Enjoined Statutory Changes, see supra) together

with the section’s implementing regulation, Florida (Emergency Rule 1SSER12-2.042,01)

neither have the purpose nor will have the effect of denying or abridging the right to vote on

account of race, color, or membership in a language minority and may be administered by

Florida’s covered jurisdictions without impediment on account of Section 5 of the Voting

Rights Act of 1965, as amended, 42 U.S.C. § 1973c; and

Award the State of Florida its costs and grant such other relief as theC.

Court may deem just and proper.

26


COUNT TWO: DECLARATORY JUDGMENT — CONSTITUTIONALAMENDMENTS

PROPOSED BY INITIATIVE

87. The State of Florida realleges, adopts, and incorporates by reference paragraphs 1

through 77 above.


purpose of 1) clarifying the signature verification responsibilities of county supervisors of

elections; 2) repealing statutory language related to signature revocation that has been

judicially invalidated; and 3) ensuring that constitutional amendments proposed by initiative

demonstrate significant contemporaneous support for the proposed changes. The covered

changes were not adopted for any discriminatory purpose.



racial minorities in that they do not have the effect of denying or abridging the right to vote

on account of race, color, or membership in a language minority.

90. The covered changes to section 100.371, Florida Statutes, accordingly have neither

the purpose nor will have the effect of denying or abridging the right to vote on account of

race, color, or membership in a language minority.







27




abridging the right to vote on account of race, color, or membership in a language minority

under Section 5 of the Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973c, and that

Florida’s covered jurisdictions may administer these covered changes without further delay.


A. Convene a three judge district court to hear the matters raised in this

Complaint;




administered by Florida’s covered jurisdictions without impediment on account of Section 5

of the Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973c; and



COUNT THREE: DECLARATORY JUDGMENT — CHANGE OF ADDRESS


paragraphs 1

through 77 above.

96. The covered changes to section 101.045, Florida Statutes, were adopted for87.

the purpose of preventing fraudulent voting by a single elector casting ballots in more than

one county. The covered changes were not adopted for any discriminatory purpose.

28


97. The covered changes to section 101.045, Florida Statutes, when compared88.

to Florida’s existing or “benchmark” practices, do not lead to a “retrogression” in the position

of racial minorities in that they do not have the effect of denying or abridging the right to


98. The covered changes to section 101.045, Florida Statutes, accordingly have89.

neither the purpose nor will have the effect of denying or abridging the right to vote on


99. The covered changes to section 101.045, Florida Statutes, do not and will90.


choice.

100. The covered changes to section 101.045, Florida Statutes, apply uniformly91.

to all Floridians regardless of race, color, or membership in a language minority.

101. The covered changes to section 101.045, Florida Statutes, do not result in92.


102. The State of Florida is entitled to a judgment that the covered changes to93.

section 101.045, Florida Statutes, neither have the purpose nor will have the effect of denying

or abridging the right to vote on account of race, color, or membership in a language minority





Complaint;

29


Enter a declaratory judgment that the covered changes to sectionB.



and may be administered by Florida’s covered jurisdictions without impediment on account of

Section 5 of the Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973c; and



COUNT FOURTHREE: DECLARATORY JUDGMENT — EARLY VOTING



104. The covered changes to section 101.657, Florida Statutes, were adopted95.

for the purpose of expanding access to early voting and providing each supervisor of elections

additional flexibility regarding the scheduling of early voting. The covered changes were not

adopted for any discriminatory purpose.

105. The covered changes to section 101.657, Florida Statutes, when compared96.

to Florida’s existing or “benchmark” practices, do not lead to a “retrogression” in the position

of racial minorities in that they do not have the effect of denying or abridging the right to


106. The covered changes to section 101.657, Florida Statutes, accordingly97.

have neither the purpose nor will have the effect of denying or abridging the right to vote on


30


107. The covered changes to section 101.657, Florida Statutes, do not and will98.


choice.

108. The covered changes to section 101.657, Florida Statutes, apply uniformly99.

to all Floridians regardless of race, color, or membership in a language minority.

109. The covered changes to section 101.657, Florida Statutes, do not result in100.


110. The State of Florida is entitled to a judgment that the covered changes to101.

section 101.657, Florida Statutes, neither have the purpose nor will have the effect of denying

or abridging the right to vote on account of race, color, or membership in a language minority





Complaint;

Enter a declaratory judgment that the covered changes to sectionB.



and may be administered by Florida’s covered jurisdictions without impediment on account of

Section 5 of the Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973c; and



COUNT FIVE FOUR: DECLARATORY JUDGMENT —SECTION 4(B) OF THE VRA IS UNCONSTITUTIONAL

31




112. For several reasons, the formula set forth in Section 4(b) of the VRA is not103.

an “appropriate” means of enforcing the Fourteenth and/or Fifteenth Amendments and thus

violates the Tenth Amendment and Article IV of the Constitution.

113. Triggering coverage based on voting practices and Presidential election data104.

from 1964, 1968, and 1972 is not a rational, congruent, or proportional means of enforcing the

Fourteenth and/or Fifteenth Amendments.

114. The coverage formula differentiates between the States in violation of the105.

doctrine of equal sovereignty without a constitutionally appropriate basis for subjecting some

States to the preclearance obligation but not others.



Complaint;

Enter a declaratory judgment that Section 4(b) of the VRA is faciallyB.

unconstitutional;

Because Section 4(b)’s coverage formula is facially unconstitutional,C.

issue a permanent injunction against Defendant Attorney General Eric H. Holder, Jr.

enjoining the enforcement of Section 5; and

Award the State of Florida its costs and grant such other relief as theD.


COUNT SIXFIVE : DECLARATORY JUDGMENT —SECTION 5 OF THE VRA IS UNCONSTITUTIONAL

32




116. For several reasons, the preclearance obligation of Section 5 of the VRA is107.

not an “appropriate” means of enforcing the Fourteenth and/or Fifteenth Amendments and thus

violates the Tenth Amendment and Article IV of the Constitution.

117. Subjecting any jurisdiction covered exclusively under the language minority108.

provisions of the VRA, and the five Florida counties in particular, to preclearance is not a rational,

congruent, or proportional means of enforcing the Fourteenth and/or Fifteenth Amendments based

on the evidence of language-minority discrimination in the legislative record when Congress

reauthorized Section 5 in 2006.

118. Requiring jurisdictions covered exclusively under the language minority109.

provisions of the VRA to establish that the relevant voting changes do not interfere with the

right to vote on account of race or color is not a rational, congruent, or proportional means of

enforcing the Fourteenth and/or Fifteenth Amendments.

119. Section 5’s substantive standard violates the non-discrimination110.

requirements of the Fifth and Fourteenth Amendments. See 42 U.S.C. § 1973c(b)-(d).

120. To the extent that Section 5 requires Florida to obtain preclearance for111.

voting changes that were enacted by the State, apply uniformly across the State, and were not

targeted at or sought by the covered jurisdictions, it is not a rational, congruent, or proportional

means of enforcing the Fourteenth and/or Fifteenth Amendments.


33



Complaint;

B. Enter a declaratory judgment that Section 5 of the VRA is facially

unconstitutional;

C. Because Section 5 is facially unconstitutional, issue a permanent

injunction against Defendant Attorney General Eric H. Holder, Jr. enjoining the enforcement

of Section 5; and

D. Award the State of Florida its costs and grant such other relief as the


34


35

Daniel E. NordbyAshley E. DavisFLORIDA DEPARTMENT OF STATER.A. Gray Building500 S. Bronough StreetTallahassee, FL 32399-0250Tel: 850-245-6536

William S. Consovoy* (D.C. Bar No. 493423)J. Michael Connolly (D.C. Bar No. 995815)WILEY REIN LLP1776 K Street, NWWashington, DC 20006Tel: (202) 719-7000Fax: (202) 719-7049

* Counsel of Record

Dated: October 24August 10, 20112012


/s/ William S. Consovoy


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in the united states district court for the district of ... · no. 1355, an omnibus bill revising...

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