CopyCited 6 times | Published | District Court, S.D. Florida | 2004 U.S. Dist. LEXIS 23739, 2004 WL 2676317
...od as to the scope of questioning of the Secretary of State's representative. ( Id. at 76.) In this stipulation, the parties agreed that Bradshaw would not testify to the law, only as to how the Secretary of State's office interprets Florida Statute § 101.672 and Florida Administrative Code § 1S-2.013. ( Id. at 77.) Bradshaw testified that the Secretary of State's office instructs county Supervisors of Elections as to the laws regarding absentee ballots. ( Id. at 78.) Bradshaw explained that under Florida Statute § 101.67(2), the Supervisors of Elections must reject the ballots from any person mailed within the United *1367 States if not received by 7 p.m....
...at 79.) Overseas, Bradshaw clarified, includes Canada, but not Puerto Rico, Guam, or the United States Virgin Islands. ( Id. at 79-80.) On cross-examination, Bradshaw stated that the Secretary of State does not have any discretion in applying Florida Statute § 101.67(2), nor does she have any discretion in applying Florida Administrative Code § 1S-2.013 or the consent decree....
...support a finding in their favor on each of these four elements, and therefore, Plaintiffs are not entitled to a preliminary injunction. [10] *1369 V. Analysis Florida's laws regarding electors and elections are set forth in Fla. Stat. §§ 100-107. Section 101.67(2) provides: "All marked absent electors' ballots to be counted must be received by the supervisor by 7 p.m. the day of the election." Fla. Stat. § 101.67(2)....
...y requested the ballot in order for that ballot to be counted, provided that the overseas absentee ballot was postmarked by election day. [11] Plaintiffs present three causes of action against Defendants. [12] First, Plaintiffs claim that Fla. Stat. § 101.67(2) deprives Plaintiffs of their rights under 42 U.S.C. § 1971(a)(2)(B) and is actionable pursuant to 42 U.S.C. § 1983. (First Amended Compl. at 7-8.) Second, Plaintiffs argue that Fla. Stat. § 101.67(2) deprives Plaintiffs of the right to vote in violation of the First and Fourteenth Amendments to the Constitution....
...Northampton County Bd. of Elections,
360 U.S. 45, 50,
79 S.Ct. 985,
3 L.Ed.2d 1072 (1959)). This is especially true in the context of absentee ballots, because there is no fundamental right to vote by absentee ballot. See id. Plaintiffs argue that Fla. Stat. §
101.67(2) in tandem with Florida Administrative Code § 1S-2.013(7) results in disparate treatment for domestic and overseas absentee voters in violation of the Voting Rights Act....
...fs do not have a substantial likelihood of success on the merits of their Voting Rights Act claim, I must next analyze whether Plaintiffs have demonstrated a substantial likelihood of success on their claim that Defendants' enforcement of Fla. Stat. § 101.67(2) is a violation of Plaintiffs' First and Fourteenth Amendment rights. I conclude that § 101.67(2) does not amount to a violation of Plaintiffs' First and Fourteenth Amendment rights, therefore, Plaintiffs have failed to demonstrate a substantial likelihood of success under this claim....
...n on the voters' First Amendment freedoms but was merely a time limitation on when the voters had to act in order for them to participate in the next election. Id. at 758,
93 S.Ct. at 1250. Plaintiffs suggest that this Court should review Fla. Stat. §
101.67 under a "strict scrutiny" standard whereby Defendants [16] must show that a compelling state interest exists to justify their rejection of any domestic absentee ballots which were received after 7 p.m. on election day. Plaintiffs have not alleged that Fla. Stat. §
101.67(2) is discriminatory on its face, however. Rather, Plaintiffs allege that "Defendants' policies, practices and procedures of strictly applying the deadline set forth in Fla. Stat. §
101.67(2) to plaintiff and members of the plaintiff class deprives, and will continue to deprive, plaintiffs of the right to vote, in violation of the First and Fourteenth Amendments." (First Amended Compl.Class Action at 8.) Plaintiffs misunderstand the standard to be applied in this case. As the United States Supreme Court held in Burdick, where a state election law imposes only "reasonable, nondiscriminatory" restrictions upon the right to vote, strict scrutiny is not required.
504 U.S. at 434,
112 S.Ct. at 2063. Because §
101.67(2) only relates to the mechanics of the electoral process, the correct standard to be applied in this case is whether Florida's important regulatory interests are sufficient to justify the restrictions imposed on their First and Fourteenth Amendment rights....
...rd of review applied to election law which mandated that primaries for certain parties would be conducted on paper ballots rather than voting machines because law only regulated the "mechanics" of the election). Plaintiffs mischaracterize Fla. Stat. § 101.67(2). § 101.672(2) does not deny the right to vote to a class of persons. It merely imposes a deadline by which Plaintiffs must return their absentee ballots to the Supervisors of Election. § 101.67(2) proscribes the mechanics of voting by absentee voters in Florida, therefore, it is subject to a lesser standard of review under Burdick and Rosario. Defendants need only show that there are important regulatory interests which justify the limited restrictions imposed by § 101.67(2) on Plaintiffs' First and Fourteenth Amendment rights....
...ather than chaos, is to accompany the democratic processes."
504 U.S. at 433,
112 S.Ct. at 2063. At the hearing, a representative for Defendant Secretary of State Glenda Hood testified regarding the history and purpose of the deadlines in Fla. Stat. §
101.67(2) and Fla....
...ng overseas citizens additional time to vote in elections due to the delay in delivery of overseas mail. The consent decree was the result of litigation brought by the Attorney General of the United States to compel the State of Florida to harmonize § 101.67(2) with the requirements of two federal lawsthe Overseas Citizens Voting Rights Act of 1975, Pub.L....
...es within a reasonable time justifies the light imposition on Plaintiffs' right to vote. Like the election laws in Burdick and Rosario, Florida's 7 p.m. deadline of returning ballots on election day does not disenfranchise a class of voters. Rather, § 101.67(2) merely imposes a time deadline by which Plaintiffs must return their votes to Defendants....
...ntee ballots. At the time that Plaintiffs sent their late absentee ballot requests, Defendants were processing thousands of absentee ballot requests, running early voting sites and attempting to prepare for the November 2, 2004 election. I find that § 101.67(2) is a reasonable regulation and that it requires domestic absentee voters to act in a timely fashion if they wish to vote....
...Further, Defendants made available to Plaintiffs, like all other registered voters, the opportunity to participate in early voting or of voting in Miami-Dade County or Broward County on election day. Plaintiffs have failed to show that the slight restrictions imposed by Fla. Stat. § 101.67(2) on their First and Fourteenth Amendment rights are not sufficiently justified by the legitimate interests presented by the State of Florida....
...in order to be entitled to a preliminary injunction. Upon reviewing the evidence presented, however, I conclude that Plaintiffs have also failed to establish sufficient evidence of a substantial likelihood that they will prevail on their claim that § 101.67(2) violates the Equal Protection Clause of the Fourteenth Amendment....
...As I explained in Section V(A)(2) above, the State of Florida's legitimate interests in requiring domestic absentee *1380 voters to return their ballots by 7 p.m. on election day justify the slight restrictions imposed on the rights of domestic absentee voters to vote, hence Plaintiffs have failed to establish that § 101.67(2) unconstitutionally denies Plaintiffs the equal protection of the laws....
...hapter of Ass'n of Gen. Contractors of America v. City of Jacksonville,
896 F.2d 1283, 1285 (11th Cir.1990)). Plaintiffs seek a preliminary injunction to force Defendants Brenda Snipes and Constance Kaplan to disregard the requirements of Fla. Stat. §
101.67(2) and instead to apply the 10 day extension for the receipt of overseas absentee ballots in § 1S-2.013(7) to all domestic absentee ballots postmarked by 7 p.m....
...unted rests on their desire to have the Court declare that Defendants had intruded upon their right to vote. This is not an "imminent" irreparable injury, and as a result, a preliminary injunction is not an appropriate remedy. Any determination that § 101.67(2) is unconstitutional in its application to Plaintiffs can be made at a later time....
...As the election neared, the United States and the State of Florida reached an agreement in the case and entered into a consent decree for that election. Id. at 1322. The consent decree provided that overseas absent voters would receive a ten-day extension on the return of ballots deadline established in § 101.67(2) and that the Supervisors of Election would mail the absentee ballots to those overseas absent voters 35 days prior to the election....
...Florida Elections Canvassing Comm ., the voters sued to prevent Supervisors of Elections from counting overseas absentee ballots that were received after 7 p.m. on election day.
122 F.Supp.2d at 1317. The voters claimed that § 1S-2.013(7) violated §
101.67(2) and its prohibition that no absentee ballot received after 7 p.m....
...absentee ballots, whether domestic or overseas, were required to be returned to the Supervisors of Elections office no later than 7 p.m. on election day. Id. at 1321. The United States sued the State of Florida on the grounds that the requirement in § 101.67(2) that all overseas absentee ballots be returned by 7 p.m....
...h, the authorized representative of the state in a lawsuit against the state, enacting a measure to bring the state into compliance with a federally ordered mandate in a situation where the state legislature refused to do so." Id. In concluding that § 101.67 and § 1S-2.013 must be read together, the district court emphasized that the "administrative code provision was properly enacted by the state executive branch to allow the state to comply with federal law and thus that the Rule should not...
...comply with federal law." Id. at 1324 (emphasis added). The Eleventh Circuit affirmed the district court's decision. See Harris v. Florida Elections Comm.,
235 F.3d 578, 578 (11th Cir.2000). Although Harris did not challenge the constitutionality of §
101.67(2)it challenged the constitutionality of § 1S-2.013the history surrounding the creation of § 1S-2.013 as a federally mandated exception to §
101.67(2) designed to render Florida's entire absentee ballot counting procedure in compliance with federal law, is illuminating....
...voters created a violation of the equal protection rights of domestic absentee voters. Harris,
122 F.Supp.2d at 1320; see also Harris,
235 F.3d at 578. Plaintiffs do not ask me to render § 1S-2.013 unconstitutional, instead they ask me to find that §
101.67(2) is unconstitutional in its application to domestic absentee voters as well....
...al to count the contested ballots could deny the [plaintiffs] due process of law ... [or] equal protection of the law." Id. Similarly, in this case, no Florida counties count any domestic absentee which fail to conform to the express requirements of § 101.67(2)....
CopyCited 3 times | Published | District Court, N.D. Florida | 2000 U.S. Dist. LEXIS 17875
...electors (hereinafter referred to as "overseas absentee ballots") were received after election day and were included in the final certificate of election results by the Florida Elections Canvassing Commission. The plaintiffs claim that this violates Section 101.67(2) Fla....
...election. The complaint concluded that this lateness threatened to deprive these voters of their right to vote by making it impossible for them to mail in their overseas absentee ballots in time to meet the 7 p.m. election day deadline in Fla. Stat. § 101.67(2)....
...The provisions of that rule have been followed by Florida since 1984 and were followed in the 2000 election. The detailed history of the litigation before Judge Stafford reveals that the 1984 order, approving the Plan and the Administrative Rule, was intended as a ruling that Fla. Stat. 101.67(2) was in conflict with the OCVRA and the FVAA with regard to federal elections....
...Instead, it was the product of the state executive branch, the authorized representative of the state in a lawsuit against the state, [6] enacting a measure to bring the state into compliance with a federally ordered mandate in a situation where the state legislature refused to do so. Thus, to the extent that Fla. Stat. § 101.67(2) conflicts with administrative rule § 1S-2.013, it is the administrative rule which must win the day....
...gether, represent the end product of a federally ordered mandate. In light of the above discussion, several arguments of the plaintiffs melt away. First, as alluded to above, the plaintiffs seek to have the Court consider the Administrative Rule and § 101.67(2) without regard to the context of how they came about....
