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holding that organizations stated a claim under § 208 of VRA
Summary of this case from La Unión Del Pueblo Entero v. AbbottOpinion
Case No. 4:21cv187-MW/MAF
2021-12-17
FLORIDA STATE CONFERENCE OF the NAACP, et al., Plaintiffs, v. Laurel M. LEE, in her official capacity as Florida Secretary of State, et al., Defendants, and National Republican Senatorial Committee and Republican National Committee, Intervenor-Defendants.
Amia Trigg, Mahogane Denea Reed, NAACP Legal Defense & Education Fund Inc., Benjamin Louis Baer Cavataro, Elizabeth T. Fouhey, Jad H. Khazem, Michael Anthony Fletcher, II, Morgan Elizabeth Saunders, Virginia Anne Williamson, Covington & Burling LLP, Cyrus S. Nasseri, Washington, DC, Ellen Choi, Robert Daniel Fram, Covington & Burling LLP, San Francisco, CA, John Z. Morris, Michael Jeremy Pernick, Morenike Fajana, NAACP Legal Defense & Education Fund, P. Benjamin Duke, Shira M. Poliak, Covington & Burling LLP, New York, NY, Nellie Linn King, Law Offices of Nellie King PA, West Palm Beach, FL, for Plaintiffs Disability Rights Florida, Common Cause, Florida State Conference of the NAACP. Dallin B. Holt, John J. Cycon, Kenneth Clark Daines, Phillip Michael Gordon, Holtzman Vogel Baran et al., Haymarket, VA, Ashley E. Davis, Colleen E. O'Brien, Bradley Robert McVay, Florida Department of State Office of General Counsel, Gary Vergil Perko, Mohammad Omar Jazil, Holtzman Vogel Baran et al., William David Chappell, Office of the Attorney General, Tallahassee, FL, for Defendant Laurel M. Lee. Diana Masters Johnson, Robert Charles Swain, Alachua County Attorneys Office, Gainesville, FL, for Defendant Kim A. Barton. Edward Paul Cuffe, Susan Smith Erdelyi, Marks Gray PA, Jacksonville, FL, for Defendants Christopher Milton, Mark Andersen, Amanda Seyfang, Sharon Chason, Tomi Stinson Brown, Starlet Cannon, Heather Riley, Shirley G. Knight, Laura Hutto, Carol A. Dunaway, Travis Hart, Grant Conyers, Janet H. Adkins, Charles Overturf, Tappie A. Villane, Vicky Oakes, William Keen, Jennifer Musgrove Kinsey, Dana Southerland, Deborah K. Osborne, Joseph Morgan, Bobby Beasley, Carol F. Rudd. Frank Michael Mari, John M. Janousek, Roper PA, Orlando, FL, for Defendants Lori Scott, Mark F. Negley, Kaiti Lenhart, Connie Sanchez, John Hanlon, Penny Ogg, Marty Bishop, Heath Driggers. Benjamin Salzillo, Brendalyn Edwards, Joseph K. Jarone, Nathaniel Adam Klitsberg, Broward County Attorneys Office, Fort Lauderdale, FL, for Defendant Joe Scott. Andy V. Bardos, James Timothy Moore, Jr., GrayRobinson PA, Tallahassee, FL, for Defendants Paul A. Stamoulis, Jennifer J. Edwards, Leslie Rossway Swan, Alan Hays, Tommy Doyle, Michael Bennett, Wesley Wilcox, Joyce Griffin, Brian E. Corley, Chris Anderson. Dale A. Scott, Roper PA, Orlando, FL, for Defendant Maureen Baird. John T. Lavia, III, Gardner Bist Bowden et al., Ronald A. Labasky, Brewton Plante PA, Tallahassee, FL, for Defendants Chris H. Chambless, Vicki Davis, Mary Jane Arrington, Lori Edwards, Gertrude Walker. Mary Margaret Giannini, Craig Dennis Feiser, City of Jacksonville Office of General Counsel, Jacksonville, FL, for Defendant Mike Hogan. Kia M. Johnson, Escambia County Attorneys Office, Pensacola, FL, for Defendant David H. Stafford. Geraldo Francis Olivo, III, Robert C. Shearman, Henderson Franklin Starnes etc., Fort Myers, FL, for Defendants Aletris Farnam, Diane Smith, Brenda Hoots, Therisa Meadows, Tammy Jones, Melissa Arnold. Jon A. Jouben, Hernando County, Brookesville, FL, Kyle J. Benda, Hernando County Attorneys Office, Brooksville, FL, for Defendant Shirley Anderson. Stephen Mark Todd, Office of the County Attorney, Tampa, FL, for Defendant Craig Latimer. Summer Denay Brown, Mark Herron, Messer Caparello & Self PA, Tallahassee, FL, for Defendant Mark S. Earley. Oren Rosenthal, Michael Beny Valdes, Miami-Dade County Attorneys Office, Miami, FL, for Defendant Christina White. Elizabeth Desloge Ellis, Gregory Thomas Stewart, Kirsten H. Mood, Nabors Giblin & Nickerson PA, Tallahassee, FL, for Defendant Paul A. Lux. Nicholas Ari Shannin, Shannin Law Firm PA, Orlando, FL, for Defendant Bill Cowles. Kelly Lynn Vicari, Pinellas County Attorneys Office, Clearwater, FL, for Defendant Julie Marcus. Morgan Ray Bentley, Bentley & Bruning PA, Asarasota, FL, for Defendant Ron Turner. London Lee Ott, William Kevin Bledsoe, Volusia County Attorney, DeLand, FL, for Defendant Lisa Lewis. Benjamin J. Gibson, George N. Meros, Jr., Amber Stoner Nunnally, Daniel Elden Nordby, Shutts & Bowen LLP, Tallahassee, FL, Cameron Thomas Norris, Steven Christopher Begakis, Daniel Joseph Shapiro, Consovoy McCarthy PLLC, Arlington, VA, Tyler R. Green, Consovoy McCarthy PLLC, Salt Lake City, UT, Frank A. Zacherl, Shutts & Bowen LLP, Miami, FL, for Intervenor-Defendants Republican National Committee, National Republican Senatorial Committee.
Amia Trigg, Mahogane Denea Reed, NAACP Legal Defense & Education Fund Inc., Benjamin Louis Baer Cavataro, Elizabeth T. Fouhey, Jad H. Khazem, Michael Anthony Fletcher, II, Morgan Elizabeth Saunders, Virginia Anne Williamson, Covington & Burling LLP, Cyrus S. Nasseri, Washington, DC, Ellen Choi, Robert Daniel Fram, Covington & Burling LLP, San Francisco, CA, John Z. Morris, Michael Jeremy Pernick, Morenike Fajana, NAACP Legal Defense & Education Fund, P. Benjamin Duke, Shira M. Poliak, Covington & Burling LLP, New York, NY, Nellie Linn King, Law Offices of Nellie King PA, West Palm Beach, FL, for Plaintiffs Disability Rights Florida, Common Cause, Florida State Conference of the NAACP.
Dallin B. Holt, John J. Cycon, Kenneth Clark Daines, Phillip Michael Gordon, Holtzman Vogel Baran et al., Haymarket, VA, Ashley E. Davis, Colleen E. O'Brien, Bradley Robert McVay, Florida Department of State Office of General Counsel, Gary Vergil Perko, Mohammad Omar Jazil, Holtzman Vogel Baran et al., William David Chappell, Office of the Attorney General, Tallahassee, FL, for Defendant Laurel M. Lee.
Diana Masters Johnson, Robert Charles Swain, Alachua County Attorneys Office, Gainesville, FL, for Defendant Kim A. Barton.
Edward Paul Cuffe, Susan Smith Erdelyi, Marks Gray PA, Jacksonville, FL, for Defendants Christopher Milton, Mark Andersen, Amanda Seyfang, Sharon Chason, Tomi Stinson Brown, Starlet Cannon, Heather Riley, Shirley G. Knight, Laura Hutto, Carol A. Dunaway, Travis Hart, Grant Conyers, Janet H. Adkins, Charles Overturf, Tappie A. Villane, Vicky Oakes, William Keen, Jennifer Musgrove Kinsey, Dana Southerland, Deborah K. Osborne, Joseph Morgan, Bobby Beasley, Carol F. Rudd.
Frank Michael Mari, John M. Janousek, Roper PA, Orlando, FL, for Defendants Lori Scott, Mark F. Negley, Kaiti Lenhart, Connie Sanchez, John Hanlon, Penny Ogg, Marty Bishop, Heath Driggers.
Benjamin Salzillo, Brendalyn Edwards, Joseph K. Jarone, Nathaniel Adam Klitsberg, Broward County Attorneys Office, Fort Lauderdale, FL, for Defendant Joe Scott.
Andy V. Bardos, James Timothy Moore, Jr., GrayRobinson PA, Tallahassee, FL, for Defendants Paul A. Stamoulis, Jennifer J. Edwards, Leslie Rossway Swan, Alan Hays, Tommy Doyle, Michael Bennett, Wesley Wilcox, Joyce Griffin, Brian E. Corley, Chris Anderson.
Dale A. Scott, Roper PA, Orlando, FL, for Defendant Maureen Baird.
John T. Lavia, III, Gardner Bist Bowden et al., Ronald A. Labasky, Brewton Plante PA, Tallahassee, FL, for Defendants Chris H. Chambless, Vicki Davis, Mary Jane Arrington, Lori Edwards, Gertrude Walker.
Mary Margaret Giannini, Craig Dennis Feiser, City of Jacksonville Office of General Counsel, Jacksonville, FL, for Defendant Mike Hogan.
Kia M. Johnson, Escambia County Attorneys Office, Pensacola, FL, for Defendant David H. Stafford.
Geraldo Francis Olivo, III, Robert C. Shearman, Henderson Franklin Starnes etc., Fort Myers, FL, for Defendants Aletris Farnam, Diane Smith, Brenda Hoots, Therisa Meadows, Tammy Jones, Melissa Arnold.
Jon A. Jouben, Hernando County, Brookesville, FL, Kyle J. Benda, Hernando County Attorneys Office, Brooksville, FL, for Defendant Shirley Anderson.
Stephen Mark Todd, Office of the County Attorney, Tampa, FL, for Defendant Craig Latimer.
Summer Denay Brown, Mark Herron, Messer Caparello & Self PA, Tallahassee, FL, for Defendant Mark S. Earley.
Oren Rosenthal, Michael Beny Valdes, Miami-Dade County Attorneys Office, Miami, FL, for Defendant Christina White.
Elizabeth Desloge Ellis, Gregory Thomas Stewart, Kirsten H. Mood, Nabors Giblin & Nickerson PA, Tallahassee, FL, for Defendant Paul A. Lux.
Nicholas Ari Shannin, Shannin Law Firm PA, Orlando, FL, for Defendant Bill Cowles.
Kelly Lynn Vicari, Pinellas County Attorneys Office, Clearwater, FL, for Defendant Julie Marcus.
Morgan Ray Bentley, Bentley & Bruning PA, Asarasota, FL, for Defendant Ron Turner.
London Lee Ott, William Kevin Bledsoe, Volusia County Attorney, DeLand, FL, for Defendant Lisa Lewis.
Benjamin J. Gibson, George N. Meros, Jr., Amber Stoner Nunnally, Daniel Elden Nordby, Shutts & Bowen LLP, Tallahassee, FL, Cameron Thomas Norris, Steven Christopher Begakis, Daniel Joseph Shapiro, Consovoy McCarthy PLLC, Arlington, VA, Tyler R. Green, Consovoy McCarthy PLLC, Salt Lake City, UT, Frank A. Zacherl, Shutts & Bowen LLP, Miami, FL, for Intervenor-Defendants Republican National Committee, National Republican Senatorial Committee.
ORDER ON DEFENDANT LEE'S MOTION FOR SUMMARY JUDGMENT
Mark E. Walker, Chief United States District Judge This is a voting case. This Court has considered, without hearing, the pending motions for summary judgment. This Order addresses the motion filed by Defendants Lee, Doyle, and Hays. ECF Nos. 285. This Court addresses Defendants Latimer and White's motion for summary judgment by separate order.
Plaintiffs have challenged several new laws enacted or amended by the Florida Legislature in SB 90. Defendants have moved for summary judgment, asserting Plaintiffs lack standing to challenge these laws, and in the alternative, that no dispute of material fact exists as to each claim and that they are entitled to judgment as a matter of law. This Order addresses each point, starting with whether Plaintiffs have demonstrated standing at the summary-judgment stage.
The parties are well aware of this case's underlying facts and procedural history, and thus this Court will not restate them here.
I
To establish standing, Plaintiffs must show (1) that they have suffered an injury-in-fact that is (2) traceable to Defendants and that (3) can likely be redressed by a favorable ruling. See Lujan v. Defs. of Wildlife , 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). And they must do so for each statutory provision they challenge. CAMP Legal Def. Fund, Inc. v. City of Atlanta , 451 F.3d 1257, 1273 (11th Cir. 2006) (emphasizing that courts have an "independent obligation ... to ensure a case or controversy exists as to each challenged provision even in a case where the plaintiffs established harm under one provision of the statute"). Plaintiffs proceed under two theories of standing, organizational standing and associational standing. This Court discusses each in turn.
An organization may have standing to assert claims based on injuries to itself if that organization is affected in a tangible way. See Fla. Democratic Party v. Hood , 342 F. Supp. 2d 1073, 1079 (N.D. Fla. 2004) ("An organization has standing to challenge conduct that impedes its ability to attract members, to raise revenues, or to fulfill its purposes." (citing Havens Realty Corp. v. Coleman , 455 U.S. 363, 379, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982) )). Here, Plaintiffs proceed under a diversion-of-resources theory. "Under the diversion-of-resources theory, an organization has standing to sue when a defendant's illegal acts impair the organization's ability to engage in its own projects by forcing the organization to divert resources in response." Arcia v. Fla. Sec'y of State , 772 F.3d 1335, 1341 (11th Cir. 2014).
In addition to organizational standing, an organization may sue "on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Greater Birmingham Ministries v. Sec'y of State of Ala. , 992 F.3d 1299, 1316 (11th Cir. 2021) (" GBM "). As discussed below, Plaintiffs’ members have standing as to each of the challenged provisions enacted or amended by SB 90. Additionally, this lawsuit is germane to Plaintiffs, whose core purposes involve registering voters, voter education, encouraging electoral participation, and advocating for accessibility for Florida voters. Finally, neither the claims asserted, nor the relief requested requires the participation of the individual members in this lawsuit. See Nat'l Parks Conservation Ass'n v. Norton , 324 F.3d 1229, 1244 (11th Cir. 2003) ; GBM , 992 F.3d at 1316 n.29 ("[P]rospective relief weigh[s] in favor of finding that associational standing exists.").
"The party invoking federal jurisdiction bears the burden of proving standing." Bischoff v. Osceola Cnty., Fla. , 222 F.3d 874, 878 (11th Cir. 2000). Critically, "each element of standing ‘must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.’ " Id. (quoting Lujan , 504 U.S. at 561, 112 S.Ct. 2130 ). Accordingly, "when standing is raised at the summary judgment stage, the plaintiff must ‘set forth by affidavit or other evidence specific facts, which for purposes of the summary judgment motion will be taken as true.’ " Id. (quoting Lujan , 504 U.S. at 561, 112 S.Ct. 2130 ).
As to standing, Defendants Lee, Doyle, and Hays assert that Plaintiffs have failed to demonstrate injuries sufficient to confer standing at the summary-judgment stage. ECF No. 285-1 at 13–16. Defendants limit their discussion to whether Plaintiffs have demonstrated either that any member is injured and therefore has standing to sue or whether Plaintiffs have demonstrated a diversion-of-resources injury. Id. But this Court recognized Plaintiff's cognizable injuries under a diversion-of-resources theory and an associational standing theory at the pleading stage, ECF No. 249 at 15–23. Now Plaintiffs have put meat on the bones to show that the challenged provisions burden their members’ and constituents’ voting rights by limiting access to drop boxes, voting line relief activities and expression, and voting by mail. See, e.g. , ECF No. 313 at 31–32; ECF No. 306-17 ¶¶ 6–9; ECF No. 306-18 ¶¶ 5–7; ECF No. 306-19 ¶¶ 6–8, 12–13; ECF No. 306-28; ECF No. 306-57; ECF No. 306-58.
In addition, contrary to Defendants’ assertions, the record includes ample evidence to support Plaintiffs’ organizational theory for standing. See, e.g. , ECF No. 313 at 26–31. See also ECF No. 306-17. For example, Plaintiff Common Cause asserts the challenged provisions necessitate the hiring of at least five new community organizers to educate voters and determine what assistance they need to vote in light of the challenged provisions. ECF No. 306-18 ¶ 10. But for the challenged law, Common Cause would use the funds diverted to hiring these canvassers and producing new voter education materials specific to the challenged provisions to, instead, continue its "broader voter education and election protection work, that is not specific to SB 90's restrictions." Id. Likewise, Plaintiff DRF is spending between $50,000 and $100,000 to prioritize an accessibility audit of all Supervisors of Elections websites based on the new vote-by-mail application restriction. ECF No. 306-19 ¶¶ 12–14. Plaintiff DRF asserts these funds are diverted from other projects focused on expanding all aspects of election accessibility. Id. ; see also id. ¶ 9 (listing other activities that Plaintiff DRF would otherwise use its resources for, including "advocating for more accessible VBM access through the state," and "pursuing lobbying efforts to increase supervised facility voting under [Florida law]").
Defendants do not raise any infirmities with respect to traceability or redressability. Moreover, upon review of the record, nothing has changed that would affect this Court's conclusions as to both standing requirements from the pleading stage. See ECF No. 249 at 23–30. Accordingly, the facts and all reasonable inferences drawn therefrom demonstrate that Plaintiffs have standing to proceed at the summary-judgment stage.
Standing jurisprudence in the Eleventh Circuit is evolving. This Court reiterates that Plaintiff must establish standing at each stage of the case, including trial. The facts and all reasonable inferences in favor of Plaintiff at this stage demonstrate that Plaintiff has standing, but more granular facts may be required at trial to establish the same. See Jacobson v. Fla. Sec'y of State , 974 F.3d 1236, 1250 (11th Cir. 2020). Plaintiffs’ counsel should be prepared to introduce evidence with specificity as to the diversion of resources necessitated by the challenged laws and the identifiable burdens the challenged provisions impose upon their members or constituents.
II
The parties already know the standard this Court applies in addressing a summary-judgment motion. This Court evaluates Defendants’ motion viewing the evidence in the light most favorable to the non-movant.
A
This Court takes Defendants’ arguments in the order Defendants make them. First, Defendants move for summary judgment on Counts VI through VIII of Plaintiffs’ amended complaint, which allege that all three challenged provisions violate section 2 of the Voting Rights Act ("VRA"), the Fourteenth Amendment, and the Fifteenth Amendment because the Legislature passed them with discriminatory intent. ECF No. 45 ¶¶ 186–223. Because a discriminatory legislative motive is rarely overt, "discriminatory intent need not be proved by direct evidence." Rogers v. Lodge , 458 U.S. 613, 618, 102 S.Ct. 3272, 73 L.Ed.2d 1012 (1982). Rather, this Court must apply a two-prong analysis to Plaintiffs’ claims. GBM, 992 F.3d at 1321. On the first prong, Plaintiffs must show that the law has both "a discriminatory purpose and effect." Id. (quoting Burton v. City of Belle Glade, 178 F.3d 1175, 1188–89 (11th Cir. 1999) ). Once Plaintiffs satisfy the first prong, the burden shifts to the Defendants to satisfy the second prong by showing that the Legislature would have passed the law even absent any discriminatory intent. Id.
Plaintiffs do not, as Defendants suggest, need to challenge SB 90 in its entirety to succeed on their intentional discrimination claims. This is because Plaintiffs need not prove that the Legislature passed SB 90 with discriminatory purpose only. Rather, Plaintiffs must show that race was a "motivating factor." Vill. of Arlington Heights v. Metro. Housing Dev. Corp. , 429 U.S. 252, 265–66, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977). Moreover, Defendants suggest that Plaintiffs declined to challenge the entire bill "because they know that many provisions of SB90 make it easier to vote." ECF No. 285-1 at 28. Why, Defendants ask, would a biased legislature make it easier to vote? As one example of SB 90's laudable provisions, Defendants argue that SB 90 "allows anyone to return up to two absentee ballots on behalf of other voters (and allows anyone to return an unlimited number for their immediate family members)." Id. (emphasis in original). But as Plaintiffs alleged in their Complaint, "[u]nder previous law, a third party could return" an unlimited number of ballots from non-family members "so long as the third party was not compensated for returning the ballot." ECF No. 45 ¶ 86. Thus, far from magnanimously easing the burdens of voting, this provision drastically constrains who can return vote-by-mail ballots. Plus, Plaintiffs did challenge this provision, and this Court dismissed their claims for lack of standing. ECF No. 249 at 28. In short, Defendants’ argument is disingenuous.
Defendants’ argument focuses on the first prong, which requires Plaintiffs to show discriminatory intent using the multi-factor test set out in Village of Arlington Heights v. Metropolitan Housing Development Corp. , 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977). See GBM , 992 F.3d at 1321. Defendants argue that Plaintiffs have come forward with insufficient evidence under Arlington Heights to survive summary judgment. There are several flaws in Defendants’ argument.
The Arlington Heights factors are (1) the challenged law's impact (2) the law's historical background; (3) "the specific sequence of events leading up" to the law's passage, which includes "(4) procedural and substantive departure; and (5) the contemporary statements and actions of key legislators." GBM , 992 F.3d at 1322. This "list has been supplemented" with an additional three factors: "(6) the foreseeability of the disparate impact; (7) knowledge of that impact, and (8) the availability of less discriminatory alternatives." Id.
Foremost, Defendants misapply Arlington Heights by arguing that Plaintiffs’ evidence on many factors—standing alone—is insufficient to defeat Defendants’ motion for summary judgment. See ECF No. 285-1 at 19 ("Disparate impacts alone are typically insufficient ...."), 22 ("[P]rocedural deviations ... alone cannot support a finding of intent ...."), 26 ("[D]isparate impact and foreseeable consequences, without more, do not constitute a constitutional violation."). Arlington Heights , however, is a totality of circumstances test; this Court must weigh Plaintiffs’ evidence as a whole. Thus, Defendants’ argument invites this Court to err, as other district courts have, by "miss[ing] the forest in carefully surveying the many trees." N.C. State Conf. of NAACP v. McCrory , 831 F.3d 204, 214 (4th Cir. 2016).
Plus, Plaintiffs’ discriminatory intent claims, which "require a fact intensive examination of the record," are particularly unsuited for resolution at the summary judgment stage. GBM , 992 F.3d at 1322 n.33. This is because "[t]he legislature's motivation is itself a factual question." Hunt v. Cromartie , 526 U.S. 541, 549, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999). And discerning that motivation often involves weighing competing reasonable inferences that can be drawn from the record and crediting some over others. See id. at 552–53, 119 S.Ct. 1545. But on a motion for summary judgment, this Court may not "weigh conflicting evidence or make credibility determinations." Alves v. Bd. of Regents of the Univ. Sys. of Ga. , 804 F.3d 1149, 1159 (11th Cir. 2015).
This case is no outlier. Plaintiffs offer enough evidence—at this stage—to support their claims under Arlington Heights . See, e.g. , ECF No. 306-20 ¶ 28 ("[A] large fraction of the more than half-a-million Black voters and more than 700,000 Hispanic voters who cast VBM ballots in the 2020 General Election will likely be disproportionately burdened by the [challenged] provisions of SB 90 ...."); ECF No. 306-23 at 192–201 (discussing a senator's statement that "[t]he only excuse you have is that you're lazy if you do not vote," which was made during an exchange about "minority voter suppression"). Defendants, in turn, offer ample reasons not to credit Plaintiffs’ evidence. See, e.g. , ECF No. 283-9 at 160 (testimony by Plaintiffs’ expert that she did not know "how we would ... predict how many people this would impact").
In short, Defendants’ motion asks this Court to weigh the competing evidence and make a factual finding about the Florida Legislature's intent in passing SB 90. That, this Court cannot do. Defendants’ motion is therefore DENIED as to Counts VI through VIII of Plaintiffs’ amended complaint.
B
Next, Defendants move for summary judgment on Plaintiffs’ section 2 discriminatory results claim. As this Court previously explained, Plaintiffs’ section 2 results claim requires this Court to ask whether "minority voters are denied ‘meaningful access to the political process[.]’ " Osburn v. Cox , 369 F.3d 1283, 1289 (11th Cir. 2004) (quoting Nipper v. Smith , 39 F.3d 1494, 1524 (11th Cir. 1994) ). Put another way, the ultimate question is whether a "certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black [or other minority voters] and white voters to elect their preferred representatives." Thornburg v. Gingles , 478 U.S. 30, 47, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986).
In answering that question, this Court may consult "certain guideposts" articulated by the Supreme Court in Brnovich v. Democratic National Committee , ––– U.S. ––––, 141 S. Ct. 2321, 210 L.Ed.2d 753 (2021). As Brnovich carefully explained, these guideposts are not exclusive, nor do they comprise an all-governing test under which courts are to evaluate section 2 claims. Id. at 2336, 2338. Instead, "any circumstance that has a logical bearing on whether voting is ‘equally open’ and affords equal ‘opportunity’ may be considered." Id. at 2338.
These "guideposts" are (1) "the size of the burden imposed by a challenged voting rule," (2) "the degree to which a voting rule departs" from standard practice in 1982, (3) "[t]he size of any disparities in a rule's impact on members of different racial or ethnic groups," (4) "the opportunities provided by a State's entire system of voting," and (5) "the strength of the state interest served by the challenged rule." Brnovich , 141 S. Ct. at 2338–40.
Contrary to that instruction, Defendants argue that Plaintiffs’ discriminatory results claim must fail because Plaintiffs have not come forward with sufficient evidence to satisfy each of Brnovich ’s "guideposts." Even accepting Defendants’ premise that Plaintiffs have not come forward with evidence under each Brnovich consideration, Defendants are not automatically entitled to summary judgment. Because this Court must consider any relevant evidence in weighing the totality of circumstances, the absence of evidence on some, but not all, of Brnovich ’s considerations does not entitle Defendants to summary judgment.
Still, Plaintiffs must come forward with some evidence. And they have. See, e.g. , ECF No. 306-24 at 10–13 (explaining that—on average—Black and Latino voters are more likely to be poor, more likely to lack a high school or college degree, more likely to be essential workers, and more likely to lack access to transportation, and thus rely more heavily on absentee voting); ECF No. 306-20 ¶¶ 7 ("Persons of color in Florida are five times more likely to rely on 3PVROs when registering to vote than white individuals."), 10 ("[T]he costs associated with requesting a VBM ballot, which already fall most heavily on racial and ethnic minority voters and particularly voters with disabilities, will be exacerbated under this law."), 12 ("[R]educed opportunities for voters to return a VBM ballot to a secure drop box under SB 90 fall most heavily on racial and ethnic minority voters."), 13 ("SB 90 is directed at a practice of volunteer groups providing assistance to voters that frequently occurs at predominantly Black and Hispanic polling places, particularly where lines to vote can be long.").
It may well be that this evidence falls short at trial, but "a bench trial, with the benefit of live testimony and cross examination, offers more than can be elucidated simply from discovery." Ga. State Conf. of NAACP v. Fayette Cnty. Bd. of Comm'rs , 775 F.3d 1336, 1348 (11th Cir. 2015). Accordingly, Defendants’ motion for summary judgment is DENIED as to Count I of Plaintiffs’ amended complaint.
C
Defendants also move for summary judgment on Plaintiffs’ undue burden claims under the First Amendment and the Fourteenth Amendment's Equal Protection Clause. This Court must evaluate these claims using the test set out in Anderson v. Celebrezze , 460 U.S. 780, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983) and Burdick v. Takushi , 504 U.S. 428, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992), which requires this Court to weigh Florida's interest in promulgating the challenged provisions against the burdens those provisions impose on Florida's electorate.
In moving for summary judgment, Defendants try to reformulate the Anderson – Burdick test to suit their needs. Having already tackled the issue at the motion to dismiss stage, this Court will address these arguments only briefly.
First , regarding Defendants’ "broader point" that "burdens that do not affect voters generally are never relevant under" Anderson – Burdick , ECF No. 285-1 at 46, Defendants point to no authority suggesting that this Court should reevaluate its prior ruling, and this Court has found none. To the contrary, only weeks ago the Eleventh Circuit applied Anderson – Burdick to evaluate the burdens a law placed on a specific group. Libertarian Party of Ala. v. Merrill , No. 20-13356, 2021 WL 5407456, at *4 (11th Cir. Nov. 19, 2021) (evaluating the burden a law placed on "minor political parties"). See also Common Cause/Ga. v. Billups , 554 F.3d 1340, 1354 (11th Cir. 2009) (weighing "the burden imposed on Georgia voters who lack photo identification").
Second , Defendants’ "narrow" point—that because Plaintiffs bring a facial challenge, they must do more than show that SB 90 imposes an unjustified burden on some voters—misapprehends the standard that applies to facial challenges. This is because Defendants’ "focus on ... electors who are unaffected by [the challenged] provisions overlooks the Supreme Court's instruction that when reviewing a facial challenge we do not consider instances in which a statute ‘do[es] no work.’ " Ga. Muslim Voter Project v. Kemp , 918 F.3d 1262, 1270 (11th Cir. 2019) (Jill Pryor, J., concurring) (quoting City of L.A., Calif. v. Patel , 576 U.S. 409, 419, 135 S.Ct. 2443, 192 L.Ed.2d 435 (2015) ). The relevant question is whether, looking to the voters the challenged provisions do burden, SB 90 is constitutional.
Defendants’ citation to Crawford v. Marion County Election Board , 553 U.S. 181, 128 S.Ct. 1610, 170 L.Ed.2d 574 (2008) is unavailing. There, the Court did not, as Defendants suggest, hold that "an unjustified burden on some voters cannot justify invalidating [an] entire provision." ECF No. 285-1 at 46 (emphasis in original) (quotation omitted). Rather, it held that it could not "conclude that the [challenged] statute imposes ‘excessively burdensome requirements’ on any class of voters." Crawford , 553 U.S. at 202, 128 S.Ct. 1610 (emphasis added) (quoting Storer v. Brown , 415 U.S. 724, 738, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974) ). See also id. at 204, 128 S.Ct. 1610 (Scalia, J., concurring) (criticizing "[t]he lead opinion" because it "assumes ... that the voter-identification law ‘may have imposed a special burden on’ some voters, ... but holds that petitioners have not assembled evidence to show that the special burden is severe enough to warrant strict scrutiny").
With these points in mind, this Court's task is to balance Defendants’ proffered justifications for the challenged provisions against the burdens, if any, those provisions place on those voters for whom the provisions present an impediment to voting. On this point, Defendants need not come forward with evidence supporting their stated interests. See Billups , 554 F.3d at 1353. Nonetheless, this Court must evaluate "the extent to which [Defendants’] justifications require the burden to plaintiffs’ rights." Democratic Exec. Comm. of Fla. v. Lee , 915 F.3d 1312, 1318 (11th Cir. 2019) (emphasis added). See also Anderson , 460 U.S. at 789, 103 S.Ct. 1564 (explaining that "the Court must not only determine the legitimacy and strength of each of [the state's] interests; it also must consider the extent to which those interests make it necessary to burden the plaintiff's rights"). This inquiry "emphasizes the relevance of context and specific circumstances." Cowen v. Ga. Sec'y of State , 960 F.3d 1339, 1346 (11th Cir. 2020).
As detailed above, Plaintiffs have come forward with evidence suggesting that the challenged provisions impose at least some burdens on Florida's electorate. The size of that burden is a question of fact, as is the extent to which Florida's legitimate interests require that it impose the burden. Both sides have submitted substantial evidence in support of their positions, which this Court cannot, at this stage, weigh. Accordingly, because material factual disputes abound, Defendants’ motion for summary judgment is DENIED as to Count II of Plaintiffs’ amended complaint.
D
Defendants next challenge Plaintiffs’ ADA claims. To succeed on those claims, Plaintiffs must establish (1) that they—or their constituents—are qualified individuals with a disability; (2) that Plaintiffs’ constituents were "excluded from participation in or denied the benefits of a public entity's services, programs, or activities, or w[ere] otherwise discriminated against by the public entity; and (3) that the exclusion, denial of benefit, or discrimination was by reason of" their disability. Bircoll v. Miami-Dade Cnty. , 480 F.3d 1072, 1081 (11th Cir. 2007) (citing Shotz v. Cates , 256 F.3d 1077, 1079 (11th Cir. 2001) ). Defendants argue that they are entitled to summary judgment because Plaintiffs’ claims fail on the second factor. Put another way, Defendants argue that SB 90 "does not exclude or deny the opportunity for voters with disabilities to equally participate in voting." ECF No. 285-1 at 54.
"To establish an exclusion for purposes of Title II, the plaintiffs do not have to show that they are prohibited from voting [in a particular manner], but only that voting [in that manner] is not ‘readily accessible’ to them." People First of Ala. v. Merrill , 491 F. Supp. 3d 1076, 1159 (N.D. Ala. 2020). See also Nat'l Fed'n of the Blind v. Lamone , 813 F.3d 494, 504 (4th Cir. 2016) (explaining that the inquiry is whether disabled voters are excluded from a particular form of voting, not voting generally). The question, then, is whether Plaintiffs have come forward with sufficient evidence to create a triable issue of fact as to whether each challenged provision renders the relevant form of voting—drop boxes, vote-by-mail ballots, or in-person voting—not readily accessible to disabled voters.
1
As to drop boxes, Defendants argue that Plaintiffs ask this Court "to infer three layers of speculation." ECF No. 285-1 at 55. Specifically, Defendants challenge Plaintiffs’ assertions (1) that elections official will move drop boxes indoors due to SB 90, (2) that indoor drop boxes will be less accessible to disabled voters, and (3) that the buildings in which the drop boxes are housed will be inaccessible to disabled voters. Defendants also point to testimony from the Palm Beach County Supervisor of Elections that SB 90 does not prohibit drop boxes from being located outside, ECF No. 284-1 at 113, and testimony by the Leon County Supervisor of Elections that SB 90 requires him "to do nothing different." ECF No. 283-24 at 38.
But Plaintiffs’ position is hardly speculative. Rather, Plaintiffs point to statements by the Lake County Supervisor of Elections—made in response to interrogatories—that "the drop box previously provided outside of the elections office will no longer be available because of the requirement that the drop box be continuously monitored in person by an employee of the Supervisor's office" and that "the drop box inside the elections office will continue to be available and accessible." ECF No. 306-53 at 4. See also ECF No. 306-54 (statement by St. Johns County supervisor that "[t]he 24/7 drop box located outside the Supervisor of Elections office will no longer be available as it was previously monitored by security cameras"). Plaintiffs also point to evidence suggesting that indoor drop boxes will be less accessible to disabled voters. See, e.g. , ECF No. 306-25 at 4 (sworn statement by disabled voter explaining that he uses a drop box that "has always been outside" and that it will be "easier for me to access the drop box outside of the library than it would be if it was inside the library because I utilize a wheelchair"). See also ECF No. 306-21 at 7 (sworn statement from Palm Beach County Supervisor that SB 90 "removes a safe and secure option for outdoor voting," which "will particularly burden voters with mobility limitations, other voters with disabilities, and voters who are immunocompromised").
Again, this Court cannot weigh this conflicting evidence and decide whose position is more credible. Alves , 804 F.3d at 1159. Summary judgment is thus inappropriate on Plaintiffs’ ADA claims as it relates to drop boxes.
2
As for the vote-by-mail request provision, Defendants argue that Plaintiffs "provide no evidence in support" of their claim that this provision will make it more difficult for disabled voters to vote by mail. ECF No. 285-1 at 56. But that is not true. See, e.g. , ECF 306-25 at 4 (sworn statement by disabled voter that he has to apply for a vote-by-mail ballot in person because his supervisor's website is not handicap accessible); ECF No. 306-58 at 4 (sworn statement by blind voter's caretaker that the vote-by-mail request requirement will make voting by mail more difficult). Accordingly, summary judgment is also inappropriate on Plaintiffs’ ADA claims as it relates to the vote-by-mail request requirement.
3
Finally, Defendants argue that Plaintiffs’ ADA challenge to the non-solicitation provision—which argues that the provision makes it more difficult for disabled voters to vote in person by prohibiting others from providing them aid—fails because SB 90 still allows the supervisors’ employees to assist disabled voters standing in line while waiting to vote. ECF No. 285-1 at 57. But to assume that the supervisors’ employees will provide such aid would require this Court to draw an inference in Defendants’ favor, which this Court cannot do at this stage. See Layton v. DHL Exp. (USA), Inc. , 686 F.3d 1172, 1175 (11th Cir. 2012) (noting that, on summary judgment, courts "resolve all ambiguities and draw reasonable factual inferences from the evidence in the non-movant's favor").
* * *
Because material factual disputes remain as to all of Plaintiffs’ ADA claims, Defendants’ motion for summary judgment is DENIED as to Count III of Plaintiffs’ amended complaint.
E
Defendants also move for judgement on Plaintiffs’ claim that section 208 of the VRA preempts the voting-line-relief restrictions. Section 208 provides that "[a]ny voter who requires assistance to vote by reason of blindness, disability, or inability to read or write may be given assistance by a person of the voter's choice, other than the voter's employer or agent of that employer or officer or agent of the voter's union." 52 U.S.C. § 10508. In urging this Court to dismiss Plaintiffs’ claims under this section, Defendants make a two-part argument. First, Defendants argue that private parties cannot enforce section 208. But, Defendants say, even if private parties could enforce section 208, section 208 does not preempt Florida law. This Court considers each argument in turn.
1
On the first point, Defendants argue the following. The Supreme Court has warned courts to exercise caution in finding that a statute implies a right of action. And "Plaintiffs provide no affirmative evidence of congressional intent to create a private remedy under Section 208." ECF No. 285-1 at 58. To the contrary, Defendants say, the VRA's structure suggests that Congress did not intend to create a right of action under section 208. Thus, "inferring a right of action ... would fly in the face of the Supreme Court's admonition to exercise restraint in implying a private right of action." Id. at 59. There are several issues with Defendants’ argument.
First, concluding that private parties may enforce Section 208 is not as fanciful as Defendants suggest. Apparently ignoring its own "admonition," the Supreme Court has permitted private suits under sections 2, 5, and 10 of the VRA even though those sections "provide[ ] no right to sue on [their] face." Morse v. Republican Party of Va. , 517 U.S. 186, 232, 116 S.Ct. 1186, 134 L.Ed.2d 347 (1996). Plus, every court to consider the issue has found that section 208 does implicitly allow private enforcement. See OCA-Greater Hous. v. Texas , 867 F.3d 604, 609–614 (5th Cir. 2017) ; Ark. United v. Thurston , 517 F. Supp. 3d 777, 790, 798 (W.D. Ark. 2021) ; New Ga. Project v. Raffensperger , 484 F. Supp. 3d 1265, 1301 (N.D. Ga. 2020) ; Democracy N.C. v. N.C. State Bd. of Elections , 476 F. Supp. 3d 158, 233–36 (M.D.N.C. 2020). The Attorney General also takes the position that section 208 permits private enforcement. See ECF No. 304 at 20.
And even if this Court were writing on a blank slate, it would still conclude that private parties may enforce section 208. Of course, Defendants are correct that a private right of action exists only when "Congress intended to create one." ECF No. 285-1 at 58. But here all evidence points to the same conclusion: Congress intended for private parties to enforce section 208.
On this issue, this Court's inquiry is "straightforward." In re Wild , 994 F.3d 1244, 1255 (11th Cir. 2021) (en banc). It must "interpret the statute Congress has passed to determine whether it displays an intent to create not just a private right but also a private remedy." Alexander v. Sandoval , 532 U.S. 275, 286, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001).
Here, that intent is clear. Congress " ‘recognized that private rights of action’ were available under the VRA when it ‘reenacted and extended the life of the Voting Rights Act in 1975.’ " Ala. State Conf. of NAACP v. Alabama , 949 F.3d 647, 652 (11th Cir. 2020) (quoting Morse , 517 U.S. at 233, 116 S.Ct. 1186 ), vacated sub nom. as moot by Alabama v. Ala. State Conf. of NAACP , ––– U.S. ––––, 141 S. Ct. 2618, 209 L.Ed.2d 746 (2021). Specifically, in 1975 Congress "amended § 3 ... to make what was once implied now explicit: private parties can sue to enforce the VRA." Id. at 651. Now, "[s]ection 3 ... provides the general enforcement mechanisms of the Act." Id. Under section 3, "an aggrieved person" may "institute[ ] a proceeding under any statute to enforce the voting guarantees of the fourteenth or fifteenth amendment." 52 U.S.C. § 10302(a).
In addition to section 3, other provisions indicate that Congress intended to permit private suits under section 208. For example, elsewhere the VRA provides that, "[i]n any action or proceeding to enforce the voting guarantees of the fourteenth or fifteenth amendment, the court, in its discretion, may allow the prevailing party, other than the United States , a reasonable attorney's fee." 52 U.S.C. § 10310(e) (emphasis added). "Obviously, a private litigant is not the United States, and the Attorney General does not collect attorney's fees." Morse , 517 U.S. at 234, 116 S.Ct. 1186.
Perhaps anticipating this line of reasoning, Defendants argue that section 3's "aggrieved person" language actually suggests that Congress did not intend for private parties to enforce section 208. This is so, they say, because Congress included a remedial scheme in section 3 but not section 208—thus demonstrating that Congress intended for private enforcement of one but not the other.
But that does not follow. Section 3 does not speak of actions to enforce this section ; section 3 speaks of actions under "any statute to enforce the voting guarantees of the fourteenth or fifteenth amendment." 52 U.S.C. § 10302(a) (emphasis added). Accordingly, the Supreme Court has explained, when a statute "by its terms" is "designed for enforcement of the guarantees of the Fourteenth and Fifteenth Amendments, ... Congress must have intended it to provide private remedies." Morse , 517 U.S. at 233–34, 116 S.Ct. 1186.
Congress clearly designed section 208 to enforce the Fourteenth Amendment's guarantees. See Tennessee v. Lane , 541 U.S. 509, 525, 124 S.Ct. 1978, 158 L.Ed.2d 820 (2004) (explaining that Title II of the ADA validly abrogated state sovereign immunity under the Fourteenth Amendment, in part, because it targeted discrimination against disabled persons in voting); S. Rep. No. 97-417, at 64 (1982) (explaining that section 208 "implements an existing right"). See also McDonald v. Bd. of Election Comm'rs of Chicago , 394 U.S. 802, 807, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969) ("[B]ecause of the overriding importance of voting rights, classifications ‘which might invade or restrain them must be closely scrutinized and carefully confined’ where those rights are asserted under the Equal Protection Clause."). Because section 208, by its terms, enforces disabled voters’ Fourteenth Amendment rights, "Congress must have intended it to provide private remedies." Morse , 517 U.S. at 233–34, 116 S.Ct. 1186. See also Ala. State Conf. of NAACP , 949 F.3d at 652 (explaining that section 3 allows private suits to "enforce § 2 or other provisions of the VRA" (emphasis added)). Thus, far from suggesting that Congress intended to preclude private parties from enforcing section 208, section 3 evinces Congress's intent to authorize such suits.
In sum, every court that has considered the issue—and the Attorney General of the United States—agree that private parties may enforce section 208. And even setting that consensus aside, the VRA's plain text provides that private parties may enforce section 208. This Court therefore finds that private parties may enforce section 208.
2
That brings this Court to Defendants’ second argument; namely, that section 208 does not preempt Florida law. "Preemption is a question of law." MetroPCS Cal., LLC v. Picker , 970 F.3d 1106, 1117 (9th Cir. 2020) (quotation omitted). Thus, no issue of fact necessarily prevents this Court from addressing Defendants’ motion for summary judgment. That said, even in the absence of a factual dispute, this Court "may ... deny summary judgment ... where there is reason to believe that the better course would be to proceed to a full trial." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). See also Lind v. United Parcel Serv., Inc. , 254 F.3d 1281, 1285 (11th Cir. 2001) (same). Such situations are few and far between. For two reasons, however, such restraint is warranted here.
First , questions of preemption implicate delicate federalism concerns. Elsewhere, Defendants correctly point out that the Constitution tasks states with enacting laws governing their elections. See U.S. Const. art. I, § 4, cl. 1 (authorizing state legislatures, in the absence of a contrary federal law, to set "[t]he Times, Places and Manner of holding Elections for Senators and Representatives"). That does not mean the Constitution grants the states carte blanche to do whatever they want, see, e.g. , Reynolds v. Sims , 377 U.S. 533, 566, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) ("[T]he Equal Protection Clause guarantees the opportunity for equal participation by all voters in the election of state legislators."), but it does mean that courts should be careful to displace only those state election laws that run afoul of federal law. In this case, the need for such caution weighs in favor of proceeding to trial.
Second , even in the "absence of a genuine issue as to a material fact," the need for a more detailed "factual basis" on which to decide a complicated legal issue may "warrant[ ] denial of [a] summary judgment motion." Bingham, Ltd. v. United States , 724 F.2d 921, 926 (11th Cir. 1984). If Defendants are right that preemption turns on whether the challenged provision unduly burdens the voting rights of disabled voters, it would be nigh impossible to decide whether section 208 preempts Florida law without developing a factual record at trial.
In sum, before resolving the complex legal issues that Plaintiffs’ section 208 claim raises, this Court finds that it would benefit from further factual development and argument at trial. Accordingly, Defendants’ motion for summary judgment is DENIED as it pertains to Count IX of Plaintiffs’ amended complaint.
F
Defendants’ move for summary judgment on Plaintiffs’ First Amendment speech and Fourteenth Amendment vagueness and overbreadth claims against SB 90's non-solicitation provision. In support, Defendants argue (1) that "the non-solicitation provision does not implicate the First Amendment because it regulates only non-expressive conduct," ECF No. 285-1 at 62, (2) that, even if the non-solicitation provision implicated the First Amendment, it survives constitutional scrutiny, id. at 65, and (3) that the non-solicitation provision is neither vague nor overbroad, id. at 67. This Court addresses each argument sequentially.
1
First, Defendants argue that the non-solicitation provision does not implicate the First Amendment because it regulates only conduct. But "[c]onstitutional protection for freedom of speech ‘does not end at the spoken or written word.’ " Fort Lauderdale Food Not Bombs v. City of Fort Lauderdale , 901 F.3d 1235, 1240 (11th Cir. 2018) (quoting Texas v. Johnson , 491 U.S. 397, 404, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989) ). Rather, the First Amendment also encompasses a right to engage in "expressive conduct." Id. (quoting Holloman ex rel. Holloman v. Harland , 370 F.3d 1252, 1270 (11th Cir. 2004) ).
To determine whether conduct is expressive—and thus entitled to First Amendment protection—this Court must ask two questions. See Spence v. Washington , 418 U.S. 405, 410–411, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974). These are "(1) whether an intent to convey a particularized message was present, and (2) whether the likelihood was great that the message would be understood by those who viewed it." Burns v. Town of Palm Beach , 999 F.3d 1317, 1336 (11th Cir. 2021) (cleaned up) (quoting Johnson , 491 U.S. at 404, 109 S.Ct. 2533 ). While the first question is self-explanatory, the second is more nuanced. It requires this Court to ask "whether the reasonable person would interpret" the conduct as conveying "some sort of message, not whether an observer would necessarily infer a specific message." Food Not Bombs , 901 F.3d at 1240 (quoting Holloman , 370 F.3d at 1270 ) (emphasis in original) (cleaned up).
Here, Plaintiffs allege that "Plaintiff Florida NAACP regularly dispatches volunteers throughout the state to provide food, water, and other relief to voters waiting to cast their ballots in person." ECF No. 45 ¶ 169. Plaintiffs contend that this activity coveys the message that it is important to stay in line and "emphasizes the value that each individual's vote carries." Id. Defendants do not contest that the NAACP actually distributes food, water, and other relief to those waiting to vote.
Nor do Defendants contest that the NAACP intends to convey a particular message when it distributes food, water, and other relief. Instead, they question whether a reasonable person would interpret the NAACP's activity as conveying a message. Moreover, Defendants say, because it is highly dependent on individual facts, the issue of whether the distribution of food and water conveys a message may only be adjudicated on an as-applied challenge.
Explaining that "context matters," Food Not Bombs , 901 F.3d at 1237, the Eleventh Circuit has agreed, id. at 1241 ("Whether food distribution [or sharing] can be expressive activity protected by the First Amendment under particular circumstances is a question to be decided in an as-applied challenge[.]") (alterations in original) (quoting Santa Monica Food Not Bombs v. City of Santa Monica , 450 F.3d 1022, 1032 (9th Cir. 2006) ). Thus, to the extent Plaintiffs mount a facial challenge to the non-solicitation provision under the First Amendment, Defendants’ motion for summary judgment is GRANTED in part .
This Court recognizes that Plaintiffs’ overbreadth challenge is also, necessarily, a facial challenge under the First Amendment. But there, Plaintiffs’ claim does not necessarily rise or fall depending on whether the First Amendment reaches Plaintiffs’ activity. See Schad v. Borough of Mount Ephraim , 452 U.S. 61, 66, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981) ("Because appellants’ claims are rooted in the First Amendment, they are entitled to rely on the impact of the ordinance on the expressive activities of others as well as their own."). Likewise, whether a law implicates the First Amendment or not, "[w]hen vagueness permeates the text of such a law, it is subject to facial attack." City of Chicago v. Morales , 527 U.S. 41, 55, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999). Accordingly, this Court makes clear that it does not grant summary judgment on Plaintiffs’ overbreadth or vagueness claims.
This Court says "to the extent Plaintiffs mount a facial challenge" because their amended complaint does not make clear whether Plaintiffs mount an as-applied or facial challenge. On the one hand, Plaintiffs claim that "[t]his action is brought ... to enforce Plaintiff Florida NAACP's right under the First Amendment ... to freely associate and engage in protected speech and expression." ECF No. 45 ¶ 168. On the other hand, Plaintiffs request broad relief, demanding "[a]n injunction barring each and every Defendant-Supervisor of Elections ... from enforcing and implementing ... the Line Relief Restriction." Id. ¶ 230.
But this imprecision is not surprising. "[T]he distinction between facial and as-applied challenges" is fluid. Citizens United v. FEC , 558 U.S. 310, 331, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010). And the difference between the two turns not on what the parties have pleaded but rather on the relief the court grants. Doe #6 v. Miami-Dade Cnty. , 974 F.3d 1333, 1338 (11th Cir. 2020). Accordingly, the Eleventh Circuit has expressed a willingness to permit parties to change their focus from a facial to an as-applied challenge "at the summary judgment stage." Id. (citing Am. Fed'n of State, Cnty. & Mun. Emps. Council 79 v. Scott , 717 F.3d 851 (11th Cir. 2013) ). This Court, therefore, cannot grant Defendants’ motion for summary judgment on the ground that Plaintiffs seek only facial relief.
Nonetheless, Defendants argue that, even if Plaintiffs bring an as-applied claim, "[t]he contextual factors in [ Food Not Bombs ] are simply not met in this context." ECF No. 285-1 at 64. While it is hard to see how a "contextual" test can be reduced to five factors that apply in every instance, the Eleventh Circuit has since applied Food Not Bombs as a five-factor test. See Burns , 999 F.3d at 1343–44 ; see also id. at 1373 (Marcus, J., dissenting) ("The circumstances in Fort Lauderdale -- which my colleagues read as factors -- were relevant to determining whether a political nonprofit's food sharing in a public park was expressive conduct -- nothing more and nothing less.").
In Burns , the Court distilled Food Not Bombs into the following factors: (1) whether the plaintiff intends to distribute literature or hang banners in connection with the expressive activity, (2) whether the activity will be open to all, (3) whether the activity takes place in a traditional public forum, (4) whether the activity addresses an issue of public concern, and (5) whether the activity "has been understood to convey a message over the millennia." Id. at 1344–45.
While Defendants argue that factors 3 and 4 are not met here, they address no other factor and point to nothing in the record supporting their argument. See ECF No. 285-1 at 62 (arguing that, "[f]acts aside," Plaintiffs’ conduct is not expressive). But this Court cannot set the facts aside; given Defendants limited argument, and the fact-intensive nature of the inquiry this Court must undertake, summary judgment is inappropriate. This Court must determine whether Plaintiffs’ conduct implicates the First Amendment after hearing all the evidence at trial.
2
Even if this Court were to determine that Plaintiffs’ conduct implicates the First Amendment, Defendants argue, this Court should still grant summary judgment. Just as with Plaintiffs’ preemption claims, however, this Court finds it imprudent to address this issue now. In similar cases, "[c]ourts ... have reserved their ruling on a motion for summary judgment until after the trial of a separate issue." 10A Charles A. Wright et al., Federal Practice & Procedure § 2728 (4th ed.). Thus, where "a determination at trial ... may eliminate the need" to resolve an issue at all, this Court may deny summary judgment. United States ex rel. Greenville Equip. Co. v. U.S. Cas. Co. , 180 F. Supp. 715, 717 (D. Del. 1960). Here, addressing at trial whether Plaintiffs’ activities are expressive at all may resolve the issue of whether the non-solicitation provision satisfies First Amendment scrutiny. Accordingly, Defendants’ motion for summary judgment is DENIED as to Count IV of Plaintiffs’ amended complaint.
3
That leaves Plaintiffs’ vagueness and overbreadth claims. But whether Plaintiffs’ conduct implicates the First Amendment impacts this Court's analysis of these claims as well. Vagueness challenges receive more lenient review when raised in a First Amendment context. See Vill. of Hoffman Ests. v. Flipside, Hoffman Ests. , Inc., 455 U.S. 489, 494, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982). And vagueness claims not implicating the First Amendment "must be examined in the light of the facts of the case at hand." United States v. Mazurie , 419 U.S. 544, 550, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975). Thus, this Court will not resolve Plaintiffs’ vagueness claims at this juncture.
In turn, Defendants’ arguments related to overbreadth may turn on how this this Court resolves other issues at trial. Accordingly, this Defendants’ motion for summary judgment is therefore DENIED as to Count XIV of Plaintiffs’ amended complaint.
Accordingly,
IT IS ORDERED :
Defendants’ motion for summary judgment, ECF No. 285, is GRANTED in part and DENIED in part . The motion is granted only to the extent that Plaintiffs mount a facial challenge to the non-solicitation provision under the First Amendment. The motion is otherwise denied. Going forward, for the benefit of this Court and to avoid any prejudice to Defendants at trial, Plaintiffs shall include in their pretrial stipulation due December 27, 2021, a list of each claim at issue and identify whether Plaintiffs are proceeding with an as-applied or facial challenge—or both—as to each claim . If neither designation is applicable, the Plaintiffs must so state. This Court requires notice of the Plaintiffs’ position ahead of trial for purposes of focusing this Court's attention during the presentation of evidence.