Filed: Apr. 29, 2020
Latest Update: Apr. 29, 2020
Summary: Case: 19-14552 Date Filed: 04/29/2020 Page: 1 of 95 [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 19-14552 _ D.C. Docket No. 4:18-cv-00262-MW-CAS NANCY CAROLA JACOBSON, TERENCE FLEMING, et al., Plaintiffs-Appellees, versus FLORIDA SECRETARY OF STATE, NATIONAL REPUBLICAN SENATORIAL COMMITTEE, et al., Defendants-Appellants. _ Appeal from the United States District Court for the Northern District of Florida _ (April 29, 2020) Before WILLIAM PRYOR, JILL PRYOR, and LU
Summary: Case: 19-14552 Date Filed: 04/29/2020 Page: 1 of 95 [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 19-14552 _ D.C. Docket No. 4:18-cv-00262-MW-CAS NANCY CAROLA JACOBSON, TERENCE FLEMING, et al., Plaintiffs-Appellees, versus FLORIDA SECRETARY OF STATE, NATIONAL REPUBLICAN SENATORIAL COMMITTEE, et al., Defendants-Appellants. _ Appeal from the United States District Court for the Northern District of Florida _ (April 29, 2020) Before WILLIAM PRYOR, JILL PRYOR, and LUC..
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Case: 19-14552 Date Filed: 04/29/2020 Page: 1 of 95
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-14552
________________________
D.C. Docket No. 4:18-cv-00262-MW-CAS
NANCY CAROLA JACOBSON,
TERENCE FLEMING, et al.,
Plaintiffs-Appellees,
versus
FLORIDA SECRETARY OF STATE,
NATIONAL REPUBLICAN SENATORIAL COMMITTEE, et al.,
Defendants-Appellants.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(April 29, 2020)
Before WILLIAM PRYOR, JILL PRYOR, and LUCK, Circuit Judges.
WILLIAM PRYOR, Circuit Judge:
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This appeal requires us to decide whether several voters and organizations
have standing to challenge a law that governs the order in which candidates appear
on the ballot in Florida’s general elections. The law provides that candidates of the
party that won the last gubernatorial election shall appear first for each office on
the ballot and that candidates of the second-place party shall appear second.
Several Democratic voters and organizations sued the Florida Secretary of State to
enjoin enforcement of the law. They alleged that the law violates their rights under
the First and Fourteenth Amendments because candidates who appear first on the
ballot—in recent years, Republicans—enjoy a “windfall vote” from a small
number of voters who select the first candidate on a ballot solely because of that
candidate’s position of primacy. After a bench trial, the district court permanently
enjoined the Secretary—and the 67 county Supervisors of Elections, none of whom
were made parties to this lawsuit—from preparing ballots in accordance with the
law.
We hold that the voters and organizations lack standing to sue the Secretary.
None of them proved an injury in fact. And any injury they might suffer is neither
fairly traceable to the Secretary nor redressable by a judgment against her because
she does not enforce the challenged law. Instead, the Supervisors—county officials
independent of the Secretary—are responsible for placing candidates on the ballot
in the order the law prescribes. The district court lacked authority to enjoin those
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officials in this suit, so it was powerless to provide redress. Because the voters and
organizations lack standing, we vacate and remand with instructions to dismiss for
lack of justiciability.
I. BACKGROUND
As part of a comprehensive revision to the election code, the Florida
Legislature enacted a statute in 1951 that governs the order in which candidates
appear on the ballot in general elections. 1951 Fla. Laws 871 (originally codified at
Fla. Stat. § 101.151(4) (1951)). The statute requires the candidate of the party that
won the last gubernatorial election to appear first beneath each office listed on the
ballot, with the candidate of the second-place party appearing second. Fla. Stat.
§ 101.151(3)(a). In the nearly 70 years since its enactment, the statute has placed
Democrats first on the ballot in 20 general elections and Republicans first in 14,
including the 10 most recent general elections.
In 2018, three voters and six organizations that support the Democratic Party
filed a complaint against the Florida Secretary of State to enjoin enforcement of the
statute. They alleged that, because of “position bias,” the statute confers “an unfair
electoral advantage” on Republicans, who have held the Governorship for the past
20 years and whose candidates have appeared first on the ballot during that time.
Position bias, or the “primacy effect,” refers to the phenomenon that a small
number of voters select the candidate who is listed first for an office on the ballot
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solely because of the candidate’s position. In close elections, the complaint
alleged, the primacy effect can give Republican candidates the “bump” needed to
secure victory. By awarding the benefits of the primacy effect entirely to
Republican candidates in recent years, the voters and organizations argued that the
statute violates their rights under the First and Fourteenth Amendments as
interpreted in Anderson v. Celebrezze, 460 U.S. 780 (1983), and Burdick v.
Takushi,
504 U.S. 428 (1992).
Shortly after the voters and organizations filed their complaint, the National
Republican Senatorial Committee and Republican Governors Association moved
to intervene as defendants. See Fed. R. Civ. P. 24(b). The district court granted the
motion. The Republican intervenors joined the Secretary in defending the
challenged law as constitutional and opposing the relief the voters and
organizations sought.
At a bench trial, the voters and organizations presented the testimony of
three expert witnesses. Jon Krosnick, a professor at Stanford University, reviewed
the academic literature and testified that the existence of the primacy effect is well-
established by academic studies of elections. Based on his regression analyses of
past Florida elections, Krosnick testified that candidates listed first on Florida
ballots have historically gained an average advantage of about five percentage
points. Jonathan Rodden, also a professor at Stanford University, testified about
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the primacy effect in down-ballot races. Rodden testified that the primacy effect is
more pronounced in down-ballot races, where voters often have less information
about the candidates, than in top-of-ticket races. And Paul Herrnson, a professor at
the University of Connecticut, testified about how ballot order contributes to
“proximity error.” Herrnson testified that when voters make proximity errors—that
is, accidentally select the candidate listed before or after the one they mean to
select—the second-listed candidate is especially disadvantaged in races with more
than two candidates. The reason for this disadvantage, Herrnson explained, is that
voters who intend to select the first or last candidate in a list can err in only one
direction, but voters who intend to select the second candidate can err in either
direction.
The Secretary and the Republican intervenors presented the testimony of an
expert witness, several election officials, and a corporate representative for one of
Florida’s election machine vendors. Michael Barber, a professor at Brigham
Young University, critiqued Krosnick’s methods and testified that Krosnick’s
estimate of an average five-percent primacy effect was not valid. Maria Matthews,
Director of the Florida Division of Elections, and several county Supervisors of
Elections testified about the state interests the challenged law serves. They
explained that the statute helps prevent voter confusion, allows voters to more
quickly find their preferred candidate or party for a particular office, promotes
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uniformity in administering elections across Florida’s 67 counties and over 6,000
precincts, and helps limit errors in ballot layout. Matthews and the Supervisors also
testified about the logistical difficulties of implementing the voters’ and
organizations’ requested relief, such as rotating the names of Democratic and
Republican candidates between counties or between voting precincts within a
county. And a corporate representative for an election machine vendor testified
that he did not know whether the election machines could rotate Democratic and
Republican candidates between the top two ballot positions and that it could take
up to a year for the company to take the steps necessary for rotating candidate
names.
After trial, the district court entered a final order. It rejected the Secretary’s
and intervenors’ arguments that the lawsuit presented a nonjusticiable political
question and that the voters and organizations lacked standing. And on the merits,
it ruled that Florida’s method of ordering candidates on the ballot is
unconstitutional.
The district court ruled that both the voters and the organizations proved
Article III standing. It reasoned that an “impact on the right to vote” is “common to
all election laws,” so the voters necessarily had an injury in fact. It also concluded
that the organizations were injured because they spent resources to combat the
primacy effect and because some unidentified voters who were members of the
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organizations would be harmed by the primacy effect. The district court did not
squarely address whether any injury from ballot order is traceable to the Secretary,
but it reasoned that the Secretary is responsible for ballot order because she is
Florida’s “chief election officer.” And although Florida law tasks the nonparty
Supervisors with placing candidates on the ballot in the correct order, Fla. Stat.
§ 99.121, the district court ruled that relief against the Secretary could redress the
voters’ and organizations’ injuries.
On the merits, the district court ruled that the law is unconstitutional under
the approach established in Anderson, which requires courts to weigh the burdens
imposed by an election regulation against the state interests justifying the measure.
See 460 U.S. at 789. The district court found that “candidates of the major parties
in Florida receive an average primacy effect vote of approximately five percent
when listed first in their office block on the ballot.” And based on “Florida’s
history of election results in which the margin of victory or defeat is less than three
to five percentage points,” the district court found that the ballot statute “has
impacted Plaintiffs’ First and Fourteenth Amendment rights by systematically
allocating that small but statistically significant advantage to Republican
candidates” in recent years. It concluded the statute was “politically
discriminatory” because it awarded the benefits of the primacy effect to a single
political party in any given election. And it found that the state’s asserted
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justifications for the statute—upholding the legislature’s policy choice, preventing
voter confusion, promoting uniformity, and promoting voter confidence in the
election administration process—were “weak,” “not particularly persuasive,” and
“not particularly strong on the specific facts of this case.”
The district court awarded declaratory and injunctive relief. It declared that
Florida’s ballot-order scheme violated the First and Fourteenth Amendments. And
it permanently enjoined the Secretary and the 67 Supervisors of Elections from
implementing the ballot-order statute. Based on the Secretary’s “responsibility for
general supervision and administration of the election laws,” the district court
ordered the Secretary to neither “enforce, nor permit enforcement of,” the statute.
The district court also ordered the Secretary to “take all practicable measures
within the scope of [her] official authority to ensure compliance with the terms of
[its] Order.” And it enjoined any “supervisor of elections of any Florida county”—
none of whom were named as defendants or served with process as parties to this
lawsuit—from issuing “any ballot which is organized pursuant to” the statute. The
district court also ordered the Secretary to “provide written guidance to the
supervisors of elections of Florida’s counties informing them that this Court has
declared the [statute] unconstitutional” and to “include a true and correct copy of
this Court’s order in her written guidance.”
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The district court did not require Florida to adopt a specific alternative
method of ordering candidates on ballots; it instead explained that two kinds of
alternative schemes would be constitutional and allowed Florida to choose an
alternative scheme. The first group of permissible schemes it identified were
“rotational schemes,” which “rotate candidates’ names within their office blocks
on a county-by-county or precinct-by-precinct basis.” The district court explained
that these schemes “equaliz[e] the burden on voting rights” by “distributing the
candidate name order effects more evenly across all candidates.” The second group
of permissible schemes the district court identified are those that “cleans[e] the
partisan taint from the process,” such as ordering candidates alphabetically by last
name, by the order in which they submit their qualifying paperwork, or by lottery.
II. STANDARD OF REVIEW
We review questions of subject-matter jurisdiction de novo. United States v.
Pavlenko, 921 F.3d 1286, 1289 (11th Cir. 2019).
III. DISCUSSION
Federal courts have an independent obligation to ensure that subject-matter
jurisdiction exists before reaching the merits of a dispute. “For a court to
pronounce upon . . . the constitutionality of a state or federal law when it has no
jurisdiction to do so is, by very definition, for a court to act ultra vires.” Steel Co.
v. Citizens for a Better Env’t, 523 U.S. 83, 101–02 (1998). If at any point a federal
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court discovers a lack of jurisdiction, it must dismiss the action. See MSP
Recovery, LLC v. Allstate Ins. Co., 835 F.3d 1351, 1357 (11th Cir. 2016).
Unfortunately, the district court took its obligation to ensure its jurisdiction
far too lightly. It dismissed weighty challenges to the voters’ and organizations’
standing under Article III as a “hodgepodge” of “[p]reliminary [m]iscellanea” and
proceeded to declare Florida’s ballot statute unconstitutional and enter an
injunction against both the Secretary and the nonparty Supervisors. In doing so, the
district court acted ultra vires by ordering relief that the voters and organizations
had no standing to seek.
Article III of the Constitution limits the subject-matter jurisdiction of federal
courts to “Cases” and “Controversies.” U.S. Const. art. III, § 2. “To have a case or
controversy, a litigant must establish that he has standing,” which requires proof of
three elements. United States v. Amodeo, 916 F.3d 967, 971 (11th Cir. 2019). The
litigant must prove (1) an injury in fact that (2) is fairly traceable to the challenged
action of the defendant and (3) is likely to be redressed by a favorable decision.
Lujan v. Defs. of Wildlife,
504 U.S. 555, 560–61 (1992).
Because the elements of standing “are not mere pleading requirements but
rather an indispensable part of the plaintiff’s case, each element must be
supported . . . with the manner and degree of evidence required at the successive
stages of the litigation.” Id. at 561. If an action proceeds to trial, the facts necessary
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to establish standing “must be supported adequately by the evidence adduced at
trial.” Id. (internal quotation marks omitted). And when plaintiffs seek prospective
relief to prevent future injuries, they must prove that their threatened injuries are
“certainly impending.” Clapper v. Amnesty Int’l USA,
568 U.S. 398, 401 (2013)
(internal quotation marks omitted).
We divide our discussion of why the voters and organizations lack Article
III standing in two parts. First, we explain that neither the voters nor the
organizations proved an injury in fact. Second, we explain that even if they had
proved an injury, that injury would be neither traceable to the Secretary nor
redressable by relief against her.
A. Neither the Voters nor the Organizations Proved an Injury in Fact.
We divide our discussion of injury in two parts. We first explain that the
individual voters failed to prove an injury. We then explain that the organizations
likewise failed to prove an injury.
1. The Voters Failed to Prove an Injury.
Two of the three voters never testified at trial or in a deposition. The record
contains no evidence about any injuries those two individuals suffered in the past
or may suffer in the future. Indeed, we do not even know whether they plan to vote
in future Florida elections.
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When confronted with this lack of evidence, the district court reasoned that
an “impact on the right to vote” is “common to all election laws,” so the voters
must have standing. But the Supreme Court has made clear that “a person’s right to
vote is individual and personal in nature,” so “voters who allege facts showing
disadvantage to themselves as individuals have standing to sue.” Gill v. Whitford,
138 S. Ct. 1916, 1929 (2018) (internal quotation marks omitted). And of course,
“[t]he facts necessary to establish standing . . . must not only be alleged at the
pleading stage, but also proved at trial.”
Id. at 1931. Because they failed to offer
any evidence at trial showing disadvantage to themselves as individuals, these two
voters failed to prove an injury.
The only voter who offered any evidence at trial was Nancy Jacobson.
Jacobson testified that she “always vote[s],” that she “go[es] out of [her] way to
vote in every election,” and that she consistently votes for Democratic candidates.
But Jacobson failed to identify any difficulty in voting for her preferred candidate
or otherwise participating in the political process.
Although her brief is less than clear on this point, Jacobson appears to
identify two threatened injuries from the ballot statute. The first is that some
unidentified Democratic candidates for whom she will vote in future elections will
lose those elections because of the primacy effect. The second injury is that—
regardless of the outcome of any election—the ballot statute “dilutes” the votes of
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Democrats relative to Republicans by allocating the windfall vote entirely to
Republican candidates. We reject both theories of injury.
To the extent Jacobson contends that she will be injured if a Democratic
candidate for whom she votes loses an election or is at increased risk of losing, we
disagree. A candidate’s electoral loss does not, by itself, injure those who voted for
the candidate. Voters have no judicially enforceable interest in the outcome of an
election. See Raines v. Byrd, 521 U.S. 811, 819, 824, 830 (1997). Instead, they
have an interest in their ability to vote and in their vote being given the same
weight as any other.
Raines, which involved the standing of legislators to challenge the
constitutionality of the Line Item Veto Act, is instructive. Id. at 814, 816. Several
legislators who voted against the Act sued to challenge it.
Id. at 814. The Supreme
Court explained that passage of the Act did not injure the legislators who voted
against it because “their votes were given full effect,” and the disappointed
legislators “simply lost that vote.”
Id. at 824. The Court made clear that legislators
have standing to challenge the defeat or enactment of legislation only if the
outcome of the vote changed because their votes were “nullified”—that is, not
counted at all.
Id. at 823 & n.6. Jacobson does not argue that the ballot statute
nullifies her vote. Instead, her complaint is that less careful voters will vote for
Republican candidates solely because they appear first on the ballot, which might
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cause her preferred candidates to lose. Like the legislators in Raines, the first harm
she identifies is an unfavorable electoral outcome, wholly apart from any
allegation of vote dilution or nullification.
Although the voting rights of legislators and citizens are not identical, see
Nev. Comm’n on Ethics v. Carrigan, 564 U.S. 117, 126 (2011), we conclude that
absent any evidence of vote dilution or nullification, a citizen is not injured by the
simple fact that a candidate for whom she votes loses or stands to lose an election.
And two of our sister circuits agree. See Berg v. Obama,
586 F.3d 234, 240 (3d
Cir. 2009) (“Berg’s wish that the Democratic primary voters had chosen a different
presidential candidate . . . do[es] not state a legal harm.”); Becker v. Fed. Election
Comm’n,
230 F.3d 381, 390 (1st Cir. 2000) (holding that a candidate’s decreased
“chance of being elected” was “hardly a restriction on voters’ rights and by itself
[was] not a legally cognizable injury sufficient for standing”). Jacobson’s first
alleged injury is legally insufficient to establish Article III standing.
Insofar as Jacobson argues that the ballot statute will injure her by diluting
her vote relative to the votes of Republicans, she failed to prove any such injury.
Her theory of vote dilution appears to be that, because of Florida’s ballot order and
the primacy effect, it takes a greater number of careful Democratic voters than
careful Republican voters to elect their preferred candidates. The reason for this
disparity is that some less careful voters will select Republican candidates solely
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because they happen to appear first on the ballot, thereby diluting the votes of
careful Democratic voters. Even assuming that this kind of “vote dilution” counts
as an Article III injury, the evidence Jacobson offered is insufficient to prove it.
In Gill, the Supreme Court addressed whether voters had standing to
challenge a partisan gerrymander based on the dilution of their votes. 138 S. Ct. at
1929–31. Partisan gerrymandering operates by placing voters of one party “in
legislative districts deliberately designed to ‘waste’ their votes in elections where
their chosen candidates will win in landslides (packing) or are destined to lose by
closer margins (cracking).”
Id. at 1930. The voters’ theory of injury was that the
partisan gerrymander caused their votes to “carry less weight” than they would “in
another, hypothetical district” that had not been packed or cracked.
Id. at 1931. But
instead of offering evidence that they lived in a packed or cracked district, which
could have shown “disadvantage to themselves as individuals,”
id. at 1930
(internal quotation marks omitted), the voters rested their case on a “theory of
statewide injury to Wisconsin Democrats,”
id. at 1932.
To prove partisan vote dilution, the voters in Gill relied on an “average
measure” of “partisan asymmetry” that compared the “statewide sum of one
party’s wasted votes” to “the statewide sum of the other party’s wasted votes.” Id.
at 1933. The Supreme Court held that this average measure of the partisan effects
of a gerrymander was insufficient to establish the voters’ standing because it did
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not “address the effect that a gerrymander has on the votes of particular citizens.”
Id. It instead “measure[d] something else entirely: the effect that a gerrymander has
on the fortunes of political parties.”
Id.
Jacobson similarly relies on a statewide average measure of the primacy
effect in Florida elections to prove the injury of partisan vote dilution. Her experts
testified, and the district court found, that candidates who appear first on the ballot
in Florida receive an average primacy effect vote of about five percent. But the
experts acknowledged that this average measure tells us nothing about the
existence or size of the primacy effect in any given election. Dr. Krosnick agreed
that his analysis did not “mean that every Republican candidate receive[s] a
[five] percent advantage by being listed first.” As he explained, the primacy effect
will be larger in some races and smaller in others. Indeed, because Jacobson relies
solely on an average measure of the primacy effect, we cannot know how often the
primacy effect is zero and how often it is much greater than five percent. Any
estimates we might make about the variance in the primacy effect across races
would be pure speculation.
As in Gill, the average measure of partisan advantage on which Jacobson
relies is insufficient to prove that her individual vote will be diluted. “We need not
doubt [Jacobson’s] math” to reach this conclusion. Id. The reason her calculations
cannot establish standing is that they “are an average measure.”
Id. “They do not
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address the effect” that ballot order and the primacy effect have “on the votes of
particular citizens” in any given election. Id. (emphasis added). Instead, like the
average measures at issue in Gill, Jacobson’s calculations “measure something else
entirely: the effect that [ballot order and the primacy effect have] on the fortunes of
political parties” across many elections.
Id. And complaints about that effect are
based on nothing more than “generalized partisan preferences,” which federal
courts are “not responsible for vindicating.”
Id.
Much like the average measure of wasted votes in Gill, the average measure
of the primacy effect treats all elections “as indistinguishable, even though their
individual situations are quite different.”
Id. In low-information races between
Democrats and Republicans, the primacy effect may be quite pronounced. But in
an especially competitive, high-information race, the primacy effect may be
negligible or nonexistent. Likewise, some races in noncompetitive districts may
have no Republican candidates on the ballot at all and, hence, no primacy effect.
An average measure of the primacy effect across all elections cannot tell us
whether ballot order has diluted or will dilute Jacobson’s or any other citizen’s
vote in any particular election. See
id. (explaining that statewide average measures
of partisan advantage were incapable of distinguishing between the effects of a
gerrymander on one citizen as opposed to another).
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Jacobson and the other voters failed to prove that they have suffered or will
suffer partisan vote dilution in any particular election. As in Gill, this lawsuit
presents a dispute “about group political interests, not individual legal rights.” Id.
The “generalized partisan preferences” on which the voters rely cannot provide an
injury in fact sufficient for Article III standing.
Id.
2. The Organizations Failed to Prove an Injury.
For their part, the organizations rely on two theories of injury. They seek to
establish associational standing based on the injuries of their members, see
Summers v. Earth Island Inst., 555 U.S. 488, 494 (2009), and organizational
standing based on their own injuries, see Common Cause/Ga. v. Billups,
554 F.3d
1340, 1350–51 (11th Cir. 2009). But they failed to prove an injury under either
theory.
To establish associational standing, an organization must prove that its
members “would otherwise have standing to sue in their own right.” Friends of the
Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181 (2000). The
organizations contend that they have standing based on injuries suffered by
Democratic voters and candidates who are their members. But five of the six
organizations failed to even allege, much less prove, that they have any
members—voters or candidates. That failure is fatal to their associational standing.
See
Summers, 555 U.S. at 498.
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The only organization that describes itself as having members is the
Democratic National Committee, but it failed to identify any of its members, much
less one who will be injured by the ballot statute. See id. (requiring organizations
to establish “that at least one identified member” will suffer an injury); see also
Ga. Republican Party v. Sec. & Exch. Comm’n,
888 F.3d 1198, 1203–04 (11th Cir.
2018). And even if we accept as true the allegation of the complaint that the
Committee’s members include Democratic voters and candidates in Florida, the
Committee still has not proved that one of those unidentified members will suffer
an injury.
Any voters and candidates in Florida face the same problem as Jacobson.
That is, because the Committee relies solely on an average measure of the primacy
effect, we have no basis to conclude that the primacy effect will impact any
particular voter or candidate in any particular election. Cf. Summers, 555 U.S. at
497 (rejecting the argument that an organization could establish standing if there
was “a statistical probability that some of [its] members are threatened with
concrete injury”). And the Committee has not proved that at least one of its
unidentified members “is certain to be injured by” the primacy effect. Ga.
Republican
Party, 888 F.3d at 1204.
The organizations argue that they have suffered an injury in their own right
by diverting resources to combat the effects of the ballot statute. In Havens Realty
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Corp. v. Coleman, the Supreme Court held that an organization could establish
standing to sue under the Fair Housing Act if it alleged, and later proved, that the
challenged actions of the defendants drained its resources and thereby impaired its
other operations. 455 U.S. 363, 378–79 & n.21 (1982). The housing organization
in Havens Realty alleged that the defendants’ discriminatory renting practices
required it “to devote significant resources to identify and counteract” those
practices, which “perceptibly impaired” the organization’s “ability to provide
counseling and referral services for low- and moderate-income homeseekers.”
Id.
at 379 (internal quotation marks omitted). The Court concluded that these
allegations were sufficient to establish standing at the pleading stage, but it warned
that at trial the organization would have to prove “that it has indeed suffered
impairment in its role of facilitating open housing before it will be entitled to
judicial relief.”
Id. at 379 & n.21. Because statutory standing under the Fair
Housing Act “extend[s] to the full limits” of standing under Article III of the
Constitution,
id. at 372, we have applied the reasoning of Havens Realty to
determine whether an organization has Article III standing based on the diversion
of its resources. See, e.g., Fla. State Conference of NAACP v. Browning,
522 F.3d
1153, 1165 & n.14 (11th Cir. 2008).
Consistent with Havens Realty, our precedent holds that “an organization
has standing to sue on its own behalf if the defendant’s illegal acts impair its ability
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to engage in its projects by forcing the organization to divert resources to
counteract those illegal acts.” Id. at 1165. In Browning, we ruled that the NAACP
and another organization had standing to challenge a voting requirement because
the organizations would “divert personnel and time” from other activities “to
educating volunteers and voters on compliance with” the requirement.
Id. at 1166.
In a later decision, we held that the NAACP had standing to challenge a law that
required voters to present photo identification because the organization was
“actively involved in voting activities and would divert resources from its regular
activities to educate and assist voters in complying with” the law. Common
Cause/Ga., 554 F.3d at 1350.
To establish resource diversion, the organizations cite the testimony of
Daniel Kazin, the director of campaigns for the Democratic Congressional
Campaign Committee. When asked why he believed the ballot statute harms the
Committee, Kazin responded that “[b]ecause of the primacy effect, we need to
spend additional resources in the target districts that we have.” The organizations
also rely on similar testimony from Guy Cecil, the chair of Priorities USA, who
testified that the organization had to “invest more resources into [Florida] in order
to compensate for” the primacy effect.
Although resource diversion is a concrete injury, neither Kazin nor Cecil
explained what activities the Committee or Priorities USA would divert resources
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away from in order to spend additional resources on combatting the primacy effect,
as precedent requires. See Havens Realty, 455 U.S. at 379 n.21; see also
Browning,
522 F.3d at 1166 (“These resources would otherwise be spent on registration drives
and election-day education and monitoring.”); Common
Cause/Ga., 554 F.3d at
1350 (explaining that resources would be diverted “from ‘getting voters to the
polls’ to helping them obtain acceptable photo identification” (alteration adopted));
Ga. Latino All. for Human Rights v. Governor of Ga.,
691 F.3d 1250, 1260 (11th
Cir. 2012) (observing that an immigration organization “cancelled citizenship
classes to focus on” increased inquiries about a new law). Based on Kazin’s
testimony, we do not know what activities, if any, might be impaired by the
Committee’s decision to allocate “additional resources” to target districts because
of the primacy effect. And Cecil’s testimony likewise fails to identify any activities
that will be impaired by Priorities USA’s decision to “invest more resources” into
Florida. Their testimony fails to establish an injury based on diversion of
resources.
The organizations also contend that the ballot statute injures them by
harming their mission of electing Democrats, but that harm is not a cognizable
injury. An organization’s general interest in its preferred candidates winning as
many elections as possible is still a “generalized partisan preference[]” that federal
courts are “not responsible for vindicating,” no less than when individual voters
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assert an interest in their preferred candidates winning elections. Gill, 138 S. Ct. at
1933; see also
id. at 1932 (rejecting a voter’s “hope of achieving a Democratic
majority in the legislature” as “a collective political interest” that cannot establish
standing). Harm to an organization’s generalized partisan preferences describes
only “a setback to [its] abstract social interests,” which is insufficient to establish a
concrete injury in fact. Havens
Realty, 455 U.S. at 379; see also Arcia v. Fla. Sec’y
of State,
772 F.3d 1335, 1342 (11th Cir. 2014) (requiring “a concrete and
demonstrable injury, not an abstract social interest” for organizational standing
(alteration adopted) (internal quotation marks omitted)).
We need not decide whether a political party would have standing to
challenge an electoral practice that harmed one of its candidate’s electoral
prospects in a particular election. See, e.g., Tex. Democratic Party v. Benkiser, 459
F.3d 582, 586 (5th Cir. 2006) (holding that the Texas Democratic Party had
standing to challenge action that would reduce “its congressional candidate’s
chances of victory” in upcoming election). As discussed, the average measure of
partisan advantage on which the organizations rely tells us nothing about whether
ballot order has affected or will affect any particular candidate in any particular
election. And in any event, the organizations do not argue that a particular
candidate’s prospects in a future election will be harmed. They instead contend that
they have standing based on “systemic disadvantage to [their] party relative to
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other political parties.” Because that kind of harm from ballot order is based on
nothing more than “generalized partisan preferences,” it is insufficient to establish
standing. Gill, 138 S. Ct. at 1933.
B. Any Injury from Ballot Order Is Neither Traceable to the Secretary nor
Redressable by Relief Against Her.
Even if the voters and organizations had proved an injury in fact, they would
still lack standing because any injury would be neither traceable to the Secretary
nor redressable by relief against her. Instead, any injury would be traceable only to
67 Supervisors of Elections and redressable only by relief against them. The voters
and organizations’ failure to join the Supervisors as defendants is an independent
reason that they lack standing to maintain this action.
To satisfy the causation requirement of standing, a plaintiff’s injury must be
“fairly traceable to the challenged action of the defendant, and not the result of the
independent action of some third party not before the court.” Lujan, 504 U.S. at
560 (alterations adopted) (internal quotation marks omitted). The voters and
organizations contend that they are injured because Republicans, not Democrats,
appear first on the ballot in Florida’s general elections. So for them to have
standing, the order in which candidates appear on the ballot must be traceable to
the Secretary—the only defendant in this action. The problem for the voters and
organizations is that Florida law tasks the Supervisors, independently of the
Secretary, with printing the names of candidates on ballots in the order prescribed
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by the ballot statute. Fla. Stat. § 99.121 (“The names of [candidates] shall be
printed by the supervisor of elections upon the ballot in their proper place as
provided by law.”). The Secretary is responsible only for “certify[ing] to the
supervisor of elections of each county . . . the names of persons nominated.” Id.
The voters and organizations have offered no contrary evidence to establish that
the Secretary plays any role in determining the order in which candidates appear on
ballots. “Because the [Secretary] didn’t do (or fail to do) anything that contributed
to [their] harm,” the voters and organizations “cannot meet Article III’s traceability
requirement.” Lewis v. Governor of Ala.,
944 F.3d 1287, 1301 (11th Cir. 2019) (en
banc).
Our conclusion that any injury from ballot order is not traceable to the
Secretary rests on the reality that the Supervisors are independent officials under
Florida law who are not subject to the Secretary’s control. The Supervisors are
constitutional officers who are elected at the county level by the people of Florida;
they are not appointed by the Secretary. Fla. Const. art. VIII, § 1(d); Fla. Stat.
§ 98.015(1). The Florida Department of State’s organic statute does not list the
Supervisors among its divisions, Fla. Stat. § 20.10(2), and the Board of County
Commissioners, not the Department, compensates the Supervisors. Id. § 98.015(2).
Only the Governor of Florida, not the Secretary, may suspend county officials such
as the Supervisors, and only the state senate may remove them from office. Fla.
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Const. art. IV, § 7; see also, e.g., Fla. Exec. Order No. 19-19 (executive order
suspending the Supervisor of Elections for Palm Beach County); Fla. Exec. Order
No. 18-342 (executive order suspending the Supervisor of Elections for Broward
County). Indeed, the only means of control the Secretary has over the Supervisors
is through coercive judicial process: she may bring “actions at law or in equity by
mandamus or injunction to enforce the performance of any duties of a county
supervisor of elections.” Fla. Stat. § 97.012(14). That the Secretary must resort to
judicial process if the Supervisors fail to perform their duties underscores her lack
of authority over them. Because the Supervisors are independent officials not
subject to the Secretary’s control, their actions to implement the ballot statute may
not be imputed to the Secretary for purposes of establishing traceability.
Contrary to the reasoning of the district court, the Secretary’s position as
“the chief election officer of the state,” id. § 97.012, with “general supervision and
administration of the election laws,”
id. § 15.13, does not make the order in which
candidates appear on the ballot traceable to her. We recently rejected a similar
argument en banc. See
Lewis, 944 F.3d at 1300. In Lewis, two workers sued the
Attorney General of Alabama to challenge a state law that preempted a local
ordinance requiring employers to pay higher wages.
Id. at 1293–94. We explained
that the workers’ injury—receiving lower wages because of the state law—was not
traceable to the Attorney General because he had never enforced or threatened to
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enforce the law, and the law itself contemplated no role for the Attorney General.
Id. at 1296, 1298–99. And of particular relevance to this appeal, we rejected the
workers’ reliance upon “a host of provisions of the Alabama Code that generally
describe the Attorney General’s [enforcement] authority” to establish traceability.
Id. at 1300. In the absence of any evidence that the Secretary controls ballot order,
the voters and organizations likewise cannot rely on the Secretary’s general
election authority to establish traceability. See
id. at 1298–1300. Florida law
expressly gives a different, independent official control over the order in which
candidates appear on the ballot. See Fla. Stat. § 99.121.
Because the Secretary will not cause any injury the voters and organizations
might suffer, relief against her will not redress that injury—either “directly or
indirectly.” See Lewis, 944 F.3d at 1301 (internal quotation marks omitted). An
injunction ordering the Secretary not to follow the ballot statute’s instructions for
ordering candidates cannot provide redress, for neither she nor her agents control
the order in which candidates appear on the ballot. Nor can declaratory relief
against the Secretary directly redress any injury to the voters and organizations. A
declaratory judgment against the Secretary does not bind the Supervisors, “who are
not parties” to this action.
Id. at 1302 (internal quotation marks omitted). As
nonparties, the Supervisors are not “obliged . . . in any binding sense . . . to honor
an incidental legal determination [this] suit produce[s].”
Id. (internal quotation
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marks omitted). They remain lawfully entitled to print candidates’ names on the
ballot in the order prescribed by Florida law unless and until they are made parties
to a judicial proceeding that determines otherwise. See id. at 1302–03.
To be sure, the district court ordered the Secretary to “provide written
guidance to the supervisors of elections of Florida’s counties informing them that
this Court has declared the [statute] unconstitutional” and to include “a true and
correct copy of this Court’s order in her written guidance.” But this “notice” theory
of redressability contravenes the “settled principle[]” that “it must be the effect of
the court’s judgment on the defendant—not an absent third party—that redresses
the plaintiff’s injury.” Id. at 1301 (internal quotation marks omitted). Any
persuasive effect a judicial order might have upon the Supervisors, as absent
nonparties who are not under the Secretary’s control, cannot suffice to establish
redressability. See
id. at 1305 (“If courts may simply assume that everyone
(including those who are not proper parties to an action) will honor the legal
rationales that underlie their decrees, then redressability will always exist.”
(quoting Franklin v. Massachusetts,
505 U.S. 788, 825 (1992) (Scalia, J.,
concurring in part and concurring in the judgment))). “Redressability requires that
the court be able to afford relief through the exercise of its power, not through the
persuasive or even awe-inspiring effect of the opinion explaining the exercise of its
power.”
Id. (quoting Franklin, 505 U.S. at 825 (Scalia, J., concurring in part and
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concurring in the judgment)). Because the voters and organizations failed to sue
the officials who will cause any future injuries, even the most persuasive of
judicial opinions would have been powerless to redress those injuries.
Even if we consider the persuasive effect of the judgment on the nonparty
Supervisors, the voters and organizations have not established that redress is likely
“as a practical matter.” Utah v. Evans, 536 U.S. 452, 461 (2002). They have not
proved that declaratory relief against the Secretary will “significantly increase the
likelihood” that the Supervisors will ignore state law and follow a federal decree
that does not bind them.
Lewis, 944 F.3d at 1301. The Supervisors are obliged
under state law to continue printing candidates’ names “upon the ballot in their
proper place as provided by law” regardless of what a federal court might say in an
action that does not involve them. Fla. Stat. § 99.121. The district court’s decision
rests on the flawed notion that by declaring the ballot statute unconstitutional, it
eliminated the legal effect of the statute in all contexts. But “federal courts have no
authority to erase a duly enacted law from the statute books.” Jonathan F.
Mitchell, The Writ-of-Erasure Fallacy,
104 Va. L. Rev. 933, 936 (2018); see also
Steffel v. Thompson,
415 U.S. 452, 469 (1974) (“Of course, a favorable declaratory
judgment . . . cannot make even an unconstitutional statute disappear.” (internal
quotation marks omitted)). Our power is more limited: we may “enjoin executive
officials from taking steps to enforce a statute.”
Mitchell, supra, at 936. And we
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can exercise that power only when the officials who enforce the challenged statute
are properly made parties to a suit.
The district court apparently understood that relief against the Secretary
would not redress any injury to the voters and organizations, so it enjoined the
Supervisors too. Its injunction stated, “No supervisor of elections of any Florida
county . . . shall issue any ballot which is organized pursuant to the [ballot
statute].” And its opinion warned the Supervisors against “selectively interpret[ing]
parts of” its order “or otherwise avoid[ing] compliance.”
The district court exceeded its authority by purporting to enjoin the
Supervisors, none of whom have ever been parties to this lawsuit. Although a
district court may bind nonparties “who are in active concert” with a defendant,
Fed. R. Civ. P. 65(d)(2)(C), that rule applies only when a plaintiff validly invokes
federal jurisdiction by satisfying the traceability and redressability requirements of
standing against a defendant. See In re Infant Formula Antitrust Litig., 72 F.3d
842, 843 (11th Cir. 1995) (“The Federal Rules of Civil Procedure do not create
federal jurisdiction.”). If a plaintiff sues the wrong defendant, an order enjoining
the correct official who has not been joined as a defendant cannot suddenly make
the plaintiff’s injury redressable. The district court was without jurisdiction to
enjoin the lone defendant in this action, much less the nonparty Supervisors. See
Zenith Radio Corp. v. Hazeltine Research, Inc.,
395 U.S. 100, 112 (1969) (holding
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that the district court erred when it enjoined a nonparty that was never determined
to be in active concert with a defendant).
The district court also relied on an inapposite decision, Democratic
Executive Committee of Florida v. Lee, 915 F.3d 1312, 1318 (11th Cir. 2019), to
conclude that relief against the Secretary would redress any injury to the voters and
organizations. In Lee, a motions panel of this Court ruled that the Florida Secretary
of State was a proper defendant under Ex parte Young,
209 U.S. 123 (1908), in an
action challenging an election procedure administered by the county Supervisors of
Elections. 915 F.3d at 1316, 1318 (citing Fla. Stat. § 101.68). But Article III
standing and the proper defendant under Ex parte Young are “[s]eparate[]” issues,
Lewis, 944 F.3d at 1295, and Lee addressed only the latter. To be a proper
defendant under Ex parte Young—and so avoid an Eleventh Amendment bar to
suit—a state official need only have “some connection” with the enforcement of
the challenged
law. 209 U.S. at 157. In contrast, Article III standing requires that
the plaintiff’s injury be “fairly traceable” to the defendant’s actions and redressable
by relief against that defendant.
Lewis, 944 F.3d at 1298, 1301 (internal quotation
marks omitted). The district court erred by treating Lee as if it addressed—let alone
resolved—the standing issues in this suit.
Because the voters and organizations lack standing to sue the Secretary, we
have no occasion to consider whether the Secretary is a proper defendant under Ex
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parte Young—the only issue Lee addressed. See id. at 1296, 1306. Nor need we
decide whether Lee—which was issued by a motions panel instead of a merits
panel—is even binding precedent. See Democratic Exec. Comm. of Fla. v. Nat’l
Republican Senatorial Comm.,
950 F.3d 790, 795 (11th Cir. 2020) (declining to
vacate the opinion of the motions panel in Lee after the appeal became moot
because “the necessarily tentative and preliminary nature of [the] stay-panel
opinion precludes the opinion from having an effect outside that case”).
We cannot agree with our colleague’s partial dissent that whether the voters
and organizations satisfied traceability and redressability are “difficult questions”
or that “principles of judicial restraint” counsel against deciding them. Dissenting
Op. at 68. The resolution of those issues is straightforward, and the Secretary has
repeatedly asked federal courts in our circuit to decide them. And we are unaware
of any principle of judicial restraint that counsels against addressing multiple
elements of standing, a threshold issue of justiciability. The Supreme Court has
decided multiple elements of standing in alternative holdings, see Clapper, 568
U.S. at 401–02 (injury and traceability), and so have we, see, e.g., City of Miami
Gardens v. Wells Fargo & Co.,
931 F.3d 1274, 1283–84 (11th Cir. 2019) (injury
and traceability); Kawa Orthodontics, LLP v. Sec’y, U.S. Dep’t of the Treasury,
773 F.3d 243, 245–48 (11th Cir. 2014) (deciding all three elements). There is
nothing unusual or untoward about our alternative holdings on traceability and
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redressability, as the partial dissent argues. See Dissenting Op. at 91–95. To the
contrary, they promote judicial economy by resolving issues that have percolated
in our circuit for years and are likely to recur in future litigation.
The partial dissent says that the Secretary never advanced in this case the
argument we adopt today, id. at 70, 95, but that assertion tells only half the story.
As the Secretary mentioned at oral argument, Oral Argument at 34:40–35:08 (Feb.
12, 2020), her office has repeatedly, if unsuccessfully, argued to the district judge
who presided over this litigation that the Secretary has highly limited authority
over county election officials, including the Supervisors. See, e.g., Rivera Madera
v. Detzner,
325 F. Supp. 3d 1269, 1275 (N.D. Fla. 2018) (Walker, C.J.) (rejecting
the Secretary’s argument that “he has no relevant power over the county
supervisors of elections”); Fla. Democratic Party v. Detzner, No. 4:16-cv-607-
MW-CAS,
2016 WL 6090943, at *4–5 (N.D. Fla. Oct. 16, 2016) (Walker, J.)
(rejecting the Secretary’s arguments that “he cannot direct the [county] canvassing
boards to comply with any order issued by this Court” and that “he does not
possess the power to issue orders [to county officials] directing compliance with
Florida’s election laws”). The Secretary made clear at oral argument that her office
has not changed its position on this issue, even if in this lawsuit she elected not to
raise the argument yet again before a district court that had repeatedly rejected the
Secretary’s own understanding of her authority under state law. Oral Argument at
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34:55–35:08 (Feb. 12, 2020) (“[W]e do not think we’re the right defendant. We
have made this argument on several occasions . . . and, quite frankly, in the
Northern District of Florida we have not succeeded . . . .”). So our ruling today is
consistent with the Secretary’s longstanding view about the scope of her powers.
The partial dissent next contends that the Secretary’s authority to prescribe
rules about ballot layout, Fla. Stat. § 101.151(9)(a), and to provide written
direction to the Supervisors, id. § 97.012(16), may make the order in which
candidates appear on the ballot traceable to her, Dissenting Op. at 74–79, but we
do not see how. That the Secretary has the power to prescribe rules and issue
directives about ballot order, which the Supervisors might well be obliged to
follow, says nothing about whether she “possess[es] authority to enforce the
complained-of provision,” as the causation element of standing requires.
Lewis,
944 F.3d at 1299 (emphasis added) (quoting Dig. Recognition Network, Inc. v.
Hutchinson,
803 F.3d 952, 958 (8th Cir. 2015)). If rulemaking authority were
sufficient to establish traceability, plaintiffs could presumably also challenge a law
by suing the legislators who enacted it instead of the officials who execute it.
Although in many cases the same official will both make and execute a challenged
regulation, that arrangement is not present here. See Fla. Stat. § 99.121.
The partial dissent also contends that an injunction forbidding the Secretary
to provide the Supervisors with any instructions about ballot order would likely
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provide redress, Dissenting Op. at 80–81, 88, but we again do not see how. Florida
law already directs the Supervisors to place candidates on the ballot in the order
“provided by law,” Fla. Stat. § 99.121—that is, in the order prescribed by the ballot
statute, see id. § 101.151(3)(a). An injunction ordering the Secretary to stay silent
would do nothing to muzzle these two sections of the Florida code, which already
bind the Supervisors to list candidates in a particular order. Indeed, one of the
Supervisors testified at trial that they “apply the [ballot] statute” because it “is the
law.” There is no contrary evidence to suggest that the Supervisors would suddenly
begin to disregard state law in the absence of instructions from the Secretary.
Under the partial dissent’s theory of traceability and redressability, the only
relief that might possibly redress any injuries from ballot order would be an
injunction ordering the Secretary to promulgate a rule requiring the Supervisors to
place candidates on the ballot in an order contrary to the ballot statute. But the
voters and organizations never requested such extraordinary relief, and for good
reason. Any such relief would have raised serious federalism concerns, and it is
doubtful that a federal court would have authority to order it. See Va. Office for
Prot. & Advocacy v. Stewart, 563 U.S. 247, 255 (2011) (explaining that the Ex
parte Young exception to sovereign immunity “is limited to [the] precise situation”
in which “a federal court commands a state official to do nothing more than refrain
from violating federal law”); cf. New York v. United States,
505 U.S. 144, 177–78
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(1992) (holding that the federal government could not commandeer states to enact
or enforce a federal regulatory scheme).
In any event, it is also far from clear that ordering the Secretary to
promulgate a rule that is contrary to the ballot statute would even make redress
likely. The voters and organizations have not argued that the Supervisors are likely
to ignore a state statute that obliges them to place candidates on the ballot in a
particular order in favor of a regulation issued by the Secretary. Again, their
hesitation is not without good reason: Florida law is clear that when a regulation
and a statute conflict, the statute prevails. See Nicholas v. Wainwright, 152 So. 2d
458, 460 (Fla. 1963). The partial dissent asserts that in this scenario the
Supervisors would likely follow the Secretary’s instructions over the statute.
Dissenting Op. at 88–89. But “[w]e do not know what would justify” the partial
dissent’s confidence when Florida law is to the contrary.
Lujan, 504 U.S. at 570
(plurality opinion).
It bears emphasis that even the district court understood the traceability and
redressability problems inherent in this lawsuit. In an attempt to avoid those
problems, it took the truly remarkable step of enjoining nonparties. Although the
decision to enjoin nonparties was unjustifiable, it makes clear what the partial
dissent says is murky: the Secretary plainly is not the cause of any alleged injuries
from ballot order, and relief against her cannot redress those injuries.
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To satisfy traceability and redressability, the voters and organizations should
have sued the Supervisors of Elections instead of the Secretary of State. That
approach would have made for more defendants, but nothing prevented the voters
and organizations from taking that course of action. See Socialist Workers Party v.
Leahy, 145 F.3d 1240, 1243 (11th Cir. 1998) (explaining that the plaintiffs filed
suit “against the Secretary of State and the sixty-seven county supervisors of
elections”). Because they failed to sue the Supervisors, the voters and
organizations lack Article III standing.
IV. CONCLUSION
By entering a judgment on the merits when it had no case or controversy
before it, the district court offered “no more than an expression of opinion upon the
validity of the [law] in question.” Muskrat v. United States, 219 U.S. 346, 362
(1911). That kind of advisory opinion is beyond the power of federal courts. The
district court should have dismissed the action for lack of standing. It erred by
reaching the merits and entering an injunction against nonparties whom it had no
authority to enjoin. We VACATE the judgment against the Secretary and
REMAND with instructions to dismiss for lack of jurisdiction.
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WILLIAM PRYOR, Circuit Judge, concurring:
In addition to the voters’ and organizations’ lack of standing, this lawsuit
suffers from another fatal jurisdictional defect: it presents a nonjusticiable political
question. Complaints of unfair partisan advantage based on the order in which
candidates appear on the ballot bear all the hallmarks of a political question under
the recent decision of the Supreme Court in Rucho v. Common Cause, 139 S. Ct.
2484 (2019). No judicially discernable and manageable standards exist to
determine what constitutes a “fair” allocation of the top ballot position, and picking
among the competing visions of fairness “poses basic questions that are political,
not legal.”
Id. at 2500. And even if courts could agree on a standard for fairly
ordering ballots, no objective measures exist to identify violations of that standard.
See
id. at 2501. This lawsuit asks us “to reallocate political power between the two
major political parties, with no plausible grant of authority in the Constitution, and
no legal standards to limit and direct” our decision.
Id. at 2507. That kind of
complaint is “outside the courts’ competence and therefore beyond the courts’
jurisdiction.”
Id. at 2494.
To place this dispute in context, I first provide a brief history of ballot
regulation in America. This history reveals that concerns about ballot order are not
new. And the political branches of state governments have long taken a variety of
approaches to addressing these perceived concerns.
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At the Founding, Americans voted using their voices, a show of hands, or
ballots prepared by individual voters, political parties, and party organizations.
Joseph P. Harris, Election Administration in the United States 150–52 (1934);
Burson v. Freeman, 504 U.S. 191, 200 (1992) (plurality opinion). The Southern
states retained voice voting the longest; Kentucky did not abandon it until 1890.
Harris, supra, at 151 & n.8. But because of the abuses associated with voice
voting, including bribery and voter intimidation, most states began to use paper
ballots within two decades of the Founding.
Burson, 504 U.S. at 200 (plurality
opinion).
As paper ballots became more widespread, some of the abuses associated
with voice voting “reinfected the election process.” Id. Political parties printed
their ballots on colorful paper, often with distinctive designs, so that the ballots
could be easily distinguished at the polls.
Harris, supra, at 151. This practice
threatened ballot secrecy and made bribery and voter intimidation easier to
accomplish, so state legislatures enacted laws that required the use of white paper
or official envelopes for ballots.
Id. at 151–52.
Other abuses that had not been possible with voice voting also arose. The
party organizations that printed the ballots engaged in fraudulent practices. They
would sometimes distribute fake ballots that bore the markings of one party but
contained only a few of that party’s candidates—“just enough to fool the unwary.”
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Id. at 152. And in some elections, the party organizations would decline to place
the names of some qualified candidates on their ballots, which made it impossible
for those candidates to be elected.
Id.
These abuses led Americans to adopt the “Australian ballot”—an official
ballot containing the names of all qualified candidates that election officials
distribute at the polls.
Id. at 152–54. As its name suggests, this kind of ballot first
appeared in Australia in the 1850s, and American states rapidly adopted it between
1887 and 1900.
Id. Although a “true Australian ballot” grouped the names of all
candidates beneath the office for which they were running without identifying their
party affiliation, most American states did not adopt the original form of the
Australian ballot.
Id. at 154. Instead, the states modified the Australian ballot “to
retain the strength of the political parties.”
Id. Many states grouped the candidates
of each party into separate columns with a party circle at the top of each column
that enabled voters to “vote a ‘straight ticket’ with a single mark.”
Id. at 155.
Others retained the Australian ballot’s grouping of candidates by office, adding
only the party designation of the candidates.
Id. at 154–55.
Concerns about the order in which candidates appear on the ballot have been
with us since the adoption of the Australian ballot. By 1934, states followed
several different practices for ordering their ballots. States that used party-column
ballots determined the parties’ position on the ballot from left to right in one of five
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ways: (1) alphabetically, (2) a definite order fixed by state law, with the party in
power given the first column, (3) in order of the votes received for some office in
the last election, (4) by the election officer charged with preparing the ballot, or
(5) by lottery. Id. at 180. Among political parties, the left-most column was “most
desired,” but the advantage gained from that position was viewed as “not great.”
Id.
In states that used office-group ballots, a common view was that “the
position at the top of a list of candidates is of material help to the candidate thus
favored.”
Id. at 181. States dealt with this perceived advantage for first-listed
candidates in different ways. Some rotated the names of candidates by ballot or
voting precinct, but others established a uniform ballot order based on the votes a
party received in the last general election, candidate last name, the order in which
nominating petitions were received, or lottery.
Id. at 181–83.
Today, states continue to use different methods to order their ballots. Some
states, like Florida, determine ballot order based on the results of the last election
for Governor or another state office. Ariz. Rev. Stat. Ann. § 16-502(E); Conn. Gen.
Stat. § 9-249a(a); Fla. Stat. § 101.151(3)(a); Ga. Code Ann. § 21-2-285(c); Ind.
Code § 3-11-2-6(a)(1); Md. Code Ann., Elec. Law §§ 1-101(dd), 9-210(j)(2);
Mich. Comp. Laws § 168.703; Mo. Rev. Stat. § 115.239(1); Neb. Rev. Stat. § 32-
815(1); N.Y. Elec. Law § 7-116(1); 25 Pa. Cons. Stat. § 2963(b); Tex. Elec. Code
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Ann. § 52.091(b). Others determine it based on the party that currently holds a
majority in the state legislature, Tenn. Code Ann. §§ 2-1-104(a)(11)–(12), 2-5-
208(d)(1), or the number of votes each party received in the last congressional
election, Wyo. Stat. Ann. § 22-6-121(a). The Minnesota rule is similar to the NFL
draft: candidates of the major party that won the fewest votes in the preceding
election are listed first. Minn. Stat. § 204D.13(2). Delaware has the most
straightforward rule: Democrats first, then Republicans. Del. Code Ann. tit. 15,
§ 4502(a)(5). And still other states order their ballots based on nonpartisan
considerations. See, e.g., Ala. Code § 17-6-25 (alphabetical by candidate last
name); Ark. Code Ann. § 7-5-207(c)(1) (random lottery); Ky. Rev. Stat. Ann.
§ 118.225(1) (rotating candidate names in each congressional district).
Against this wide array of state practice, voters and organizations brought
this constitutional challenge to Florida’s 70-year-old law that assigns the top ballot
position to candidates of the incumbent Governor’s party. They alleged violations
of the First Amendment and the Equal Protection Clause of the Fourteenth
Amendment as interpreted in a line of decisions beginning with Anderson v.
Celebrezze, 460 U.S. 780 (1983), and Burdick v. Takushi,
504 U.S. 428 (1992).
Although the voters and organizations also alleged a traditional equal-protection
claim based on the ballot statute’s “disparate treatment” of similarly-situated
political parties, the district court did not rule on that claim and it is not before us.
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The voters and organizations’ complaint, in a nutshell, is that Florida’s ballot
statute confers an impermissible partisan advantage on Republicans by virtue of
the primacy effect. Because Republican candidates enjoy a “windfall vote” of
approximately five percentage points from disinterested voters who reflexively
pick the first candidate, the Democratic voters and organizations have a harder
time electing their preferred candidates than if Florida distributed the windfall vote
more evenly. They argue that this regime burdens their right to vote and should be
evaluated using the approach established in Anderson and Burdick.
The recent decision of the Supreme Court in Rucho compels the conclusion
that this complaint presents a nonjusticiable political question. This complaint
shares the same critical feature that led the Supreme Court to hold complaints of
partisan gerrymandering nonjusticiable in Rucho: neither this complaint of partisan
advantage from ballot order nor complaints of partisan advantage from
redistricting can be adjudicated using “judicially discernible and manageable”
standards. Rucho, 139 S. Ct. at 2502.
In Rucho, the Supreme Court held that complaints of partisan
gerrymandering are nonjusticiable for two main reasons. First, these complaints
invariably rest on a threshold determination about what a “fair” apportionment of
political power looks like. See id. at 2499–500. The Court reasoned that one
possible standard of fairness—proportional representation—might have been
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judicially manageable but had no basis in constitutional law or the history of the
Republic. See id. at 2499. And absent proportional representation, the Court
explained, “it is not even clear what fairness looks like in this context.”
Id. at 2500.
Fairness could mean creating the greatest number of competitive districts,
districting to ensure that each party receives its proportional share of “safe” seats,
or adhering to traditional districting criteria.
Id. (internal quotation
marks omitted).
And choosing between these different visions of fairness “poses basic questions
that are political, not legal.”
Id.
Second, even if courts could agree on a standard of fairness, they would
have to determine how much deviation from that standard in pursuit of partisan
interests was permissible.
Id. at 2501. Some amount of partisan gerrymandering is
constitutional and inevitable.
Id. at 2497. To hold that legislators could never
consider partisan interests in districting “would essentially countermand the
Framers’ decision to entrust districting to political entities.”
Id. And in addition to
the problem of deciding how much partisan intent is too much, complaints of
partisan gerrymandering also present line-drawing problems concerning partisan
effect—judges must decide “how much partisan dominance is too much.”
Id. at
2498 (emphasis added) (internal quotation marks omitted). For example, to police
partisan gerrymandering, courts would “have to decide the ideal number of seats
for each party and determine at what point deviation from that balance went too
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far.”
Id. at 2501. Because the Constitution supplies neither an objective standard
for the fair apportionment of political power nor any principled basis for
identifying violations of that (nonexistent) standard, the Court concluded that
complaints of partisan gerrymandering present nonjusticiable political questions.
Id. at 2500–02.
Under the reasoning of Rucho, complaints of partisan advantage based on
ballot order are likewise nonjusticiable political questions. The voters and
organizations’ complaint is based on the notion that Florida’s ballot statute, by
virtue of the primacy effect, confers an unfair partisan advantage on the party that
last won the Governorship. But courts cannot rely on legal standards to adjudicate
this kind of complaint because it does not allege any burden on individual voting
rights. Instead, adjudicating this kind of complaint would require courts to pick
among various conceptions of a politically “fair” ballot order that have no basis in
the Constitution. For that reason, the complaint “poses basic questions that are
political, not legal.”
Id. at 2500. And even if a judicially discernable and
manageable standard for fairly ordering a ballot existed, there are no standards for
determining how much of a departure from an ideal ballot order amounts to a
constitutional violation. See
id. at 2501. As I will explain, Rucho cannot be
persuasively distinguished from this appeal.
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The basic problem with the voters and organizations’ complaint is that it is
not based on the right to vote at all, so we cannot evaluate their complaint using
the legal standards that apply to laws that burden the right to vote. As the voters
and organizations correctly point out, we must evaluate laws that burden voting
rights using the approach of Anderson and Burdick, which requires us to weigh the
burden imposed by the law against the state interests justifying the law. Common
Cause/Ga. v. Billups, 554 F.3d 1340, 1352 (11th Cir. 2009). But “we have to
identify a burden before we can weigh it.” Crawford v. Marion Cty. Election Bd.,
553 U.S. 181, 205 (2008) (Scalia, J., concurring in the judgment). And here it is
impossible to identify a burden on voting rights imposed by the ballot statute that
is susceptible to the balancing test of Anderson and Burdick.
The statute at issue here is unlike any law that this Court or the Supreme
Court has ever evaluated under Anderson and Burdick. The statute does not make it
more difficult for individuals to vote, see, e.g., Crawford, 553 U.S. at 198
(plurality opinion) (photo-identification law); Common
Cause/Ga., 554 F.3d at
1354 (same), or to choose the candidate of their choice, see
Burdick, 504 U.S. at
430 (prohibition on write-in voting). It does not limit any political party’s or
candidate’s access to the ballot, which would interfere with voters’ ability to vote
for and support that party or candidate. See, e.g., Timmons v. Twin Cities Area New
Party,
520 U.S. 351, 353–54, 358–59 (1997) (law forbidding individuals to appear
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on the ballot as the candidate of more than one party); Norman v. Reed, 502 U.S.
279, 288–89 (1992) (ballot-access law for new parties); Munro v. Socialist
Workers Party,
479 U.S. 189, 199 (1986) (ballot-access law for minor-party
candidates);
Anderson, 460 U.S. at 782, 786 (early filing deadline for candidate
paperwork); Fulani v. Krivanek,
973 F.2d 1539, 1539, 1543 (11th Cir. 1992)
(ballot-access law for minor-party candidates). Nor does it burden the associational
rights of political parties by interfering with their ability to freely associate with
voters and candidates of their choosing. See, e.g., Wash. State Grange v. Wash.
State Republican Party,
552 U.S. 442, 451–52 (2008); Clingman v. Beaver,
544
U.S. 581, 587, 593 (2005); Tashjian v. Republican Party of Conn.,
479 U.S. 208,
213–14 (1986). And to state the obvious, the statute certainly does not create the
risk that some votes will go uncounted or be improperly counted. See, e.g.,
Democratic Exec. Comm. of Fla. v. Lee,
915 F.3d 1312, 1318–20 (11th Cir. 2019)
(challenge to signature-match procedures for absentee and provisional ballots);
Wexler v. Anderson,
452 F.3d 1226, 1232 (11th Cir. 2006) (challenge to manual-
recount procedures under which some ballots might “receive a different, and
allegedly inferior, type of review in the event of a manual recount”). All the statute
does is determine the order in which candidates appear in each office block on the
ballot.
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If the statute burdened voting or associational rights even slightly, we could
apply legal standards to determine whether the burden was unconstitutional. Under
Anderson and Burdick, we would weigh the burden imposed by the law against the
state interests justifying that burden. See Common Cause/Ga., 554 F.3d at 1352.
But because the statute does not burden the right to vote, we cannot engage in that
kind of review. The voters and organizations ask us to decide not whether the
ballot statute burdens identifiable voting or associational rights, but whether it
confers an unfair partisan advantage on the Republican Party.
Instead of basing their complaint on individual voting or associational rights,
the voters and organizations allege a novel complaint premised on the idea that the
extra votes that flow from top ballot position should be distributed “fairly”
between the major political parties. The “crux of [their] constitutional claim,” they
explain, “is the way in which” the ballot statute distributes the primacy vote
“between similarly-situated major parties.” In their view and the district court’s,
fairness means distributing the primacy vote either evenly between the major
parties or on some apolitical basis, like random lottery or alphabetically by
candidate last name.
But sensible as those approaches might be, they are hardly the only ways to
conceive of a “fair” ballot order. As in Rucho, “it is not even clear what fairness
looks like in this context.” 139 S. Ct. at 2500. Instead of splitting the primacy
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effect between the two major parties, perhaps Florida should ensure that each
political party on the ballot—including minor parties—has an equal number of its
candidates listed first for office. After all, parties that have qualified to be on the
ballot are similarly situated with respect to any right to be first on the ballot. Or,
because that approach might give an undue advantage to minor parties with few
supporters, perhaps Florida should distribute the primacy effect proportionately
based on the number of registered voters in each party. That is, if 20 percent of
registered voters belong to one political party, that party’s candidates should
appear first on 20 percent of the ballots, and so on. Maybe Minnesota’s approach is
fairest: award the primacy effect entirely to one party—the party that received the
fewest votes in the last election. Minn. Stat. § 204D.13(2). One could imagine
many other ballot schemes that plausibly claim to be the fairest way, or at least a
fair way, to distribute the primacy effect, including the one Florida adopted nearly
70 years ago: giving all parties the chance to win the primacy effect at each
gubernatorial election.
As in the partisan gerrymandering context, picking among these alternatives
“poses basic questions that are political, not legal.” Rucho, 139 S. Ct. at 2500.
“There are no legal standards discernible in the Constitution for making such
judgments, let alone limited and precise standards that are clear, manageable, and
politically neutral.”
Id. “Any judicial decision on what is ‘fair’ in this context
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would be an ‘unmoored determination’ of the sort characteristic of a political
question beyond the competence of the federal courts.” Id. (quoting Zivotofsky v.
Clinton,
566 U.S. 189, 196 (2012)).
And even if courts could discern in the Constitution a standard of fairness
for evaluating ballot-order regimes, they would run headlong into the second
problem the Supreme Court identified in Rucho. There are no discernable and
manageable standards “to answer the determinative question”: How much partisan
advantage from ballot order is too much? See id. at 2501; see also
id. at 2498
(asking “how much partisan dominance is too much” (internal quotation marks
omitted)). It is impossible to ensure that each candidate or party in a particular
election appears at the top of the ballot an equal number of times. Election officials
cannot know in advance how many ballots will be cast in a given race, let alone
how many ballots will be cast in each county or voting precinct or which counties
and precincts have the largest numbers of disinterested voters. Relatedly, how large
must the primacy effect be to create a constitutional problem? Two percent of
voters? Five percent? Some greater share? If the standard is an “outcome
determinative” number of voters, then any disparity in allocating the primacy
effect could violate the Constitution in close races. Would awarding the primacy
effect to a single political party be constitutional in a noncompetitive state where it
would make no difference to electoral outcomes but unconstitutional in a
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battleground state? As with partisan gerrymandering, even if courts “knew which
version of fairness to be looking for, there are no discernible and manageable
standards for deciding whether there has been a violation.”
Id. at 2501.
At bottom, the voters and organizations’ challenge to the ballot statute rests
on the notion “that each party must be influential in proportion to its number of
supporters.” Id. Their complaint is that some voters who are neither Democrats nor
Republicans will vote for the Republican candidate solely because the Republican
is listed first, giving Republicans an advantage beyond their actual number of
supporters. But the Supreme Court has never accepted that baseline as providing a
justiciable standard in any context. It has instead emphatically rejected the idea that
federal courts are “responsible for vindicating generalized partisan preferences.”
Id. (quoting Gill v. Whitford,
138 S. Ct. 1916, 1933 (2018)).
The federal judiciary’s “constitutionally prescribed role is to vindicate the
individual rights of the people appearing before it.” Id. (quoting Gill, 138 S. Ct. at
1933). Where an election law does not burden the right to vote in any way, we
cannot vindicate individual rights. And we “have no license to reallocate political
power between the two major political parties, with no plausible grant of authority
in the Constitution, and no legal standards to limit and direct [our] decisions.”
Id.
at 2507. The complaints of partisan gerrymandering in Rucho cannot be
persuasively distinguished from the voters and organizations’ complaint. A
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complaint that the order in which candidates appear on a ballot confers an
impermissible partisan advantage to one party presents a nonjusticiable political
question.
One possible response to the preceding analysis is that because the voters
and organizations have not alleged any burden on voting rights, their complaint
fails on the merits though it remains justiciable. But a complaint can both fail to
state a constitutional violation and be nonjusticiable if there are no judicially
discernible and manageable standards to adjudicate it. Take complaints of partisan
gerrymandering. In the light of Rucho, we know that any complaint that a
redistricting plan is unconstitutionally partisan must be dismissed as
nonjusticiable—even if the challenged plan is so fair that it could not possibly
violate the Constitution. Nor must a particular practice even be capable of
violating the Constitution for challenges to that practice to be nonjusticiable. Our
guide, again, is Rucho. We do not know whether partisan gerrymandering can ever
violate the Constitution; in its 46 years of attempting to adjudicate those
complaints, the Supreme Court never declared a single redistricting plan
unconstitutionally partisan. Id. at 2491, 2497–98, 2507. But even though partisan
gerrymandering may not violate the Constitution, challenges to that practice are
nonetheless nonjusticiable because they are unsuited for resolution by federal
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courts. Id. at 2507–08. The same is true for complaints of partisan advantage based
on ballot order.
The voters and organizations’ arguments that their complaint is justiciable
are unconvincing. To make their case, they attempt to distinguish Rucho, invoke a
host of inapposite precedents, and posit hypothetical laws that bear no resemblance
to the challenged law in this action. None of their arguments have merit.
The voters and organizations first suggest that Rucho is distinguishable
because the Supreme Court searched for a judicially manageable standard to police
partisan gerrymandering “for decades” without success. But Rucho makes clear
that complaints of partisan gerrymandering have always been nonjusticiable; it did
not impose a requirement that courts first struggle to identify a justiciable standard
for some period of time before declaring a complaint nonjusticiable. Complaints of
partisan gerrymandering did not become nonjusticiable only after the Court tried
and failed to develop a standard. See Lester v. United States, 921 F.3d 1306, 1312
(11th Cir. 2019) (W. Pryor, J., respecting the denial of rehearing en banc) (“[W]e
should be mindful of the difference between a change in judicial doctrine and a
change in law.” (emphasis added)). Instead, the Court’s inability to discern a
manageable standard was evidence that these complaints had always been “outside
the courts’ competence and therefore beyond the courts’ jurisdiction.”
Rucho, 139
S. Ct. at 2494; see also
Lester, 921 F.3d at 1313 (“Without distinguishing between
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judges’ understanding of the law and the law itself, . . . the Supreme Court [could
not] meaningfully describe a past decision of its own as ‘wrong the day it was
decided.’” (quoting Planned Parenthood of Se. Penn. v. Casey, 505 U.S. 833, 863
(1992) (joint opinion of O’Connor, Kennedy, and Souter, JJ.))). As discussed
below, the judiciary’s experience with partisan ballot-order complaints provides
similar evidence that no judicially discernible and manageable standards exist to
adjudicate them—that is, that these complaints have always been nonjusticiable.
The voters and organizations also argue that Rucho is distinguishable
because some amount of partisan gerrymandering is constitutionally permissible in
redistricting, but partisan considerations are off limits in the realm of election
administration. And if partisan considerations are forbidden in election
administration, that reality arguably eliminates the line-drawing problem the
Supreme Court faced in Rucho—how much partisanship is too much? In the voters
and organizations’ view, any partisanship is too much partisanship in this context.
Cf. id. at 2502 (explaining that complaints of racial gerrymandering can rightly ask
“for the elimination of a racial classification” but that complaints of partisan
gerrymandering “cannot ask for the elimination of partisanship”).
This argument has at least two problems. First, partisan considerations are
not entirely off limits in election administration. Partisan motivations do not doom
a nondiscriminatory election law if “valid neutral justifications” also support the
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law. Crawford, 553 U.S. at 204 (plurality opinion); see also Common
Cause/Ga.,
554 F.3d at 1355. But even if partisan motivations were entirely off limits in
election administration, that fact would not eliminate the line-drawing problems
inherent in the voters and organizations’ complaint, which is based solely on the
partisan effects of the ballot statute. The voters and organizations have never
argued that the Democrat-led legislature and Democratic governor that enacted the
statute were motivated by impermissible partisan intent. Their complaint does not
ask for the elimination of partisan intent in ballot order. It asks for a fair allocation
of the primacy vote, much like the complaints of partisan gerrymandering in Rucho
asked for “a [fair] level of political power and
influence.” 139 S. Ct. at 2499.
The voters and organizations next contend that because other challenges to
election regulations are justiciable, theirs must be too. They point to Williams v.
Rhodes, 393 U.S. 23, 24, 28 (1968), which held that a challenge to laws that “made
it virtually impossible” for certain political parties to access the ballot was
justiciable. But Williams provides no support for their position.
Laws that limit the ability of candidates or parties to access the ballot burden
“voters’ freedom of choice and freedom of association.” Anderson, 460 U.S. at 806
(emphasis added); see also Socialist Workers
Party, 479 U.S. at 193 (explaining
that ballot-access restrictions “impinge upon the rights of individuals to associate
for political purposes, as well as the rights of qualified voters to cast their votes
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effectively”). Standards exist to assess the burdens imposed by restrictions on
ballot access. See Socialist Workers Party, 479 U.S. at 193–99. But no standards
exist to judge challenges to the partisan advantage conferred by ballot order.
The voters and organizations contend that if we determine their complaint is
nonjusticiable, other more nefarious ballot laws will be insulated from judicial
review. They offer examples of hypothetical laws that require a “thumbs-up” or
asterisk symbol next to candidates of the Governor’s party, or that require the
names of those candidates to appear in larger font, bold print, or a different color.
Because challenges to these laws should be justiciable, they argue, so also should
challenges to laws that govern ballot order.
A ruling that this lawsuit is nonjusticiable would not mean that challenges to
these kinds of ballot laws are also nonjusticiable. The Elections Clause, which
commits the regulation of the “Times, Places and Manner of holding Elections” to
state legislatures, U.S. Const. art. I, § 4, cl. 1, provides a judicially discernable and
manageable standard to evaluate nonprocedural laws about ballot content. The
Supreme Court has held that the Elections Clause establishes the boundaries of
state authority over elections. See Cook v. Gralike, 531 U.S. 510, 523 (2001)
(“[T]he States may regulate the incidents of such elections, including balloting,
only within the exclusive delegation of power under the Elections Clause.”). In
Cook, the Court invalidated a Missouri law that placed a pejorative designation
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next to candidates who refused to support term limits because the law did not
regulate the time, place, or manner of elections but instead sought to disparage or
endorse particular candidates. Id. at 523–26. “Thumbs-up” laws could be evaluated
under that standard, as could other laws that arguably do not regulate the manner of
elections, like laws that provide favorable font choices for certain candidates. But
Cook and the Elections Clause provide no standard to evaluate laws that govern
ballot order. Unlike the law at issue in Cook or a “thumbs-up” law, laws that
govern ballot order plainly regulate the manner of elections and are within the
power of states to enact. To use an Australian ballot, Florida, like every other state,
necessarily had to decide the order in which candidates’ names appear on the
ballot. And the choice of what order to adopt cannot be evaluated using legal
standards because it “poses basic questions that are political, not legal.”
Rucho,
139 S. Ct. at 2500.
One might think that holding the voters and organizations’ complaint to be
nonjusticiable would mean that all challenges to ballot order are nonjusticiable, but
that is not so. Rucho makes clear that one kind of challenge to a law can be
justiciable and another nonjusticiable depending on whether judicially discernable
and manageable standards exist to adjudicate the complaint. The Court explained
that challenges to a redistricting plan based on racial gerrymandering or violations
of the one-person, one-vote principle are justiciable because manageable standards
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exist to adjudicate those complaints, even though challenges to the same
redistricting plan based on its partisan effects are nonjusticiable. See id. at 2501–
02. Similarly, if the voters and organizations’ complaint were that Florida’s ballot
order somehow made it more difficult for Democrats to vote for their candidate of
choice, their complaint would be justiciable, and we would have to weigh the
burden imposed by the law against the state’s regulatory interests. See
Burdick,
504 U.S. at 434; Common
Cause/Ga., 554 F.3d at 1352. It is conceivable that a law
governing ballot order could have that effect: a law that required Democrats to be
placed on the last page of the ballot and all other candidates to appear on the earlier
pages might make it more difficult for Democratic voters to find and select their
preferred candidate. But that is not the kind of complaint the voters and
organizations brought. They instead ask us to fairly apportion the primacy vote
among the political parties, and that complaint falls squarely within Rucho’s
definition of a political question.
The voters and organizations also argue that the decisions of other courts
adjudicating complaints of partisan advantage based on ballot order prove that their
complaint is justiciable. But the relevant decisions all predate Rucho. See, e.g.,
Libertarian Party of Va. v. Alcorn, 826 F.3d 708, 717 (4th Cir. 2016); Green Party
of Tenn. v. Hargett,
767 F.3d 533, 550–51 (6th Cir. 2014); Koppell v. N.Y. State
Bd. of Elections,
153 F.3d 95, 96 (2d Cir. 1998); McLain v. Meier,
637 F.2d 1159,
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1167 (8th Cir. 1980); Sangmeister v. Woodard, 565 F.2d 460, 465 (7th Cir. 1977).
And none of the decisions addressed whether complaints of partisan advantage
based on ballot order are justiciable. More fundamentally, that courts have
attempted to adjudicate a complaint does not mean the complaint is justiciable.
Indeed, before Rucho, numerous lower courts had crafted some standard to
adjudicate complaints of partisan gerrymandering. See
Rucho, 139 S. Ct. at 2502–
06.
Even taken on their own terms, these decisions support, rather than
undermine, the conclusion that the voters and organizations’ complaint is
nonjusticiable. They provide evidence that the voters and organizations’ complaint
is inherently standardless, much as the many prior decisions attempting to
adjudicate complaints of partisan gerrymandering did in Rucho. See id. at 2497–98.
Because complaints of partisan advantage based on ballot order are not based on
the right to vote at all, the courts in each of these decisions were forced to decide
what constituted a fair method of allocating of the top ballot position and then
determine whether the challenged law so departed from that standard of fairness
that it violated the Constitution.
Unsurprisingly, the courts settled on different and sometimes contradictory
standards. The Fourth Circuit, for example, concluded that “facially neutral and
nondiscriminatory” ballot-order laws “impose[] only the most modest burdens” on
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voting and associational rights and for that reason survive scrutiny under Anderson
and Burdick. Libertarian Party of Va., 826 F.3d at 717. The Eighth Circuit, in
contrast, held that “position advantage must be eliminated as much as is possible”
and decided that the “fairest remedy” was “some form of ballot rotation whereby
‘first position’ votes are shared equitably by all candidates.”
McLain, 637 F.2d at
1169 (emphasis added). The Seventh Circuit did not require rotation of the top
ballot spot among all candidates; instead, it held that laws governing ballot order
pose no constitutional problem so long as they are “neutral” in character and do not
intentionally favor one class of candidates over another.
Sangmeister, 565 F.2d at
465–68. And at least one court has concluded that even a “neutral” method of
assigning ballot position—alphabetically by candidate last name—violated the
state constitutional rights of a candidate whose name would never allow him to
appear at the top of the ballot. Kautenburger v. Jackson,
333 P.2d 293, 294–95
(Ariz. 1958). These decisions strengthen the conclusion that there are no judicially
discernable and manageable standards for adjudicating complaints of partisan
advantage based on ballot order. Such complaints present competing visions of
fairness that are “unguided and ill suited to the development of judicial standards.”
Rucho, 139 S. Ct. at 2501 (internal quotation marks omitted). Federal judges have
no business deciding them.
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Finally, the voters and organizations contend that the Supreme Court’s
summary affirmance in Mann v. Powell, 398 U.S. 955 (1970) (mem.), establishes
that their complaint is justiciable, but that is plainly wrong. The law at issue in
Mann placed candidates on the ballot in the order they submitted their nominating
petitions and gave the Illinois Secretary of State unfettered discretion to break ties
if he received multiple petitions simultaneously.
314 F. Supp. 677, 678–79 (N.D.
Ill. 1969), aff’d,
398 U.S. 955. When the Secretary received two or more petitions
simultaneously, he chose to break the tie in favor of incumbents.
Id. A three-judge
district court enjoined that practice,
id. at 679, and the Supreme Court summarily
affirmed,
Mann, 398 U.S. at 955. But because neither court addressed whether it
had jurisdiction to hear the dispute, Mann is not precedential as to justiciability.
See Steel Co. v. Citizens for a Better Env’t,
523 U.S. 83, 91 (1998) (“We have
often said that drive-by jurisdictional rulings of this sort . . . have no precedential
effect.”); United States v. More, 7 U.S. (3 Cranch) 159, 172 (1805) (Marshall, C.J.,
at oral argument) (“No question was made, in that case, as to the jurisdiction. It
passed sub silentio, and the court does not consider itself as bound by that case.”).
Not only is Mann a nonprecedential drive-by ruling on the issue of
justiciability, but it also provides no basis to conclude that the Supreme Court has
ever adjudicated a complaint based on the partisan effects of ballot order. The
Supreme Court has cautioned that we must not overread its summary affirmances:
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“the precedential effect of a summary affirmance extends no further than the
precise issues presented and necessarily decided by those actions. A summary
disposition affirms only the judgment of the court below, and no more may be read
into our action than was essential to sustain that judgment.” Anderson, 460 U.S. at
784 n.5 (internal quotation marks omitted); see also Mandel v. Bradley,
432 U.S.
173, 176 (1977) (“Because a summary affirmance is an affirmance of the judgment
only, the rationale of the affirmance may not be gleaned solely from the opinion
below. When we summarily affirm, without opinion, we affirm the judgment but
not necessarily the reasoning by which it was reached.” (alteration adopted)
(internal quotation marks omitted)). It is impossible to tell whether the Supreme
Court based its summary affirmance in Mann on the district court’s rationale—that
the Secretary’s decision to “favor incumbents in breaking ties” violated the
plaintiffs’ “right to fair and evenhanded
treatment,” 314 F. Supp. at 679—or on
some alternative basis. The Court could just as well have affirmed on an alternative
ground—for example, the ground urged by the plaintiffs “that the statute [was]
unconstitutional for failure to set out standards to guide the Secretary’s action in
breaking ties.”
Id. at 678. In short, the voters and organizations’ reliance on Mann
is completely misplaced.
The voters and organizations’ attempts to escape the reasoning of Rucho are
all unavailing. Despite their many protests, Rucho compels the conclusion that
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complaints of unfair partisan advantage based on ballot order present
nonjusticiable political questions. Although Rucho may seem counterintuitive to
federal judges who are used to usurping the authority of state legislatures to
regulate elections, it should not. The Constitution commits the “Times, Places and
Manner” of holding congressional elections to legislatures—the state legislatures
in the first instance, subject to any regulations Congress prescribes. U.S. Const. art.
I, § 4, cl. 1. Our founding charter never contemplated that federal courts would
dictate the manner of conducting elections—in this lawsuit, down to the order in
which candidates appear on a ballot.
Alexander Hamilton explained in Federalist 59 that “a discretionary power
over elections ought to exist somewhere,” but that somewhere was not the federal
judiciary. The Federalist No. 59, at 306 (Alexander Hamilton) (George W. Carey
& James McClellan eds., 2001). Instead, Hamilton identified “only three ways in
which this power could have been reasonably organized.” Id. It could be “lodged
wholly in the national legislature, or wholly in the state legislatures, or primarily,
in the latter, and ultimately in the former.”
Id. The Constitution, of course, adopted
the third option. But the district court in this action assumed for itself the
“discretionary power over elections” that the Constitution assigns to the state and
federal legislatures, in contravention of clear Supreme Court precedent that should
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have prevented it from reaching the merits of this dispute. Its decision to do so was
error.
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JILL PRYOR, Circuit Judge, concurring in part and dissenting in part:
For the past 20 years, the Republican candidate’s name has been listed first
on every general election ballot in every race in every contested partisan election in
the state of Florida. In this case, individuals and organizations sued Florida’s
Secretary of State to challenge as unconstitutional the state statute governing ballot
ordering in general elections. Florida law requires the names of candidates from
the governor’s party to be listed first for each office on the general election ballot.
See Fla. Stat. § 101.151(3)(a). The district court found after a bench trial that this
ballot-ordering scheme has awarded Republican candidates a “small but
statistically significant advantage” due to the tendency of some voters to select a
candidate simply because his name is listed first (a phenomenon known as the
“primacy effect” or “candidate name order effect”). Doc. 202 at 2. 1 As a result,
the court concluded, the scheme violated the First and Fourteenth Amendments.
The merits question in this appeal is whether Florida’s ballot-order law
violates the Constitution by awarding the advantage created by the primacy effect
to candidates based on their affiliation with the governor’s political party. But
before we can address the merits, we must be sure that the plaintiffs have standing
to bring this challenge. See Warth v. Seldin, 422 U.S. 490, 498 (1975) (“[T]he
1
“Doc. #” refers to the numbered entry on the district court’s docket.
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question of standing is whether the litigant is entitled to have the court decide the
merits of the dispute or of particular issues.”).
The Constitution limits the power of the judiciary to deciding “Cases” and
“Controversies.” U.S. Const. art. III, § 2, cl. 1. To satisfy the case-or-controversy
requirement, a plaintiff must have standing to sue. See Spokeo, Inc. v. Robins,
136 S. Ct. 1540, 1547 (2016). To establish standing, a plaintiff must show (1) an
injury in fact; (2) a causal connection between the injury and the causal conduct,
meaning that the injury is fairly traceable to the defendant’s conduct; and (3) a
likelihood that the injury will be redressed by a favorable decision. Id.; MSP
Recovery, LLC v. Allstate Ins. Co.,
835 F.3d 1351, 1357 (11th Cir. 2016). Failure
to demonstrate any one of these three elements defeats a plaintiff’s standing. The
majority opinion concludes that the plaintiffs lack standing to sue the Secretary of
State because at trial they failed to prove all three: (1) that any plaintiff suffered an
injury in fact; (2) that any injury a plaintiff suffered, if one existed, was fairly
traceable to the Secretary’s conduct, and (3) that any injury a plaintiff suffered, if
one existed, could be redressed by a judgment against the Secretary.
I agree with the majority that the plaintiffs lack standing because at trial they
failed to prove that any plaintiff suffered an injury in fact. In my view, the
plaintiffs’ strongest argument is that plaintiff Priorities USA—which describes
itself as a progressive organization that works to increase participation of
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underrepresented communities in civil life and the political process and supports
Democrats running for office around the country—suffered an injury in fact under
a diversion-of-resources theory. The plaintiffs argue that to overcome the
advantage the ballot-order scheme grants Republican candidates as a result of the
primacy effect, Priorities USA had to devote more resources to the candidates it
supported in Florida, which drained its resources. But I must agree with the
majority that even Priorities USA’s evidence is insufficient. The problem with the
plaintiffs’ reliance on a diversion-of-resources theory is that they presented no
evidence of any activities Priorities USA “divert[ed] resources away from in order
to spend additional resources on combatting the primacy effect.” Maj. Op. at 21-
22 (citing Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 n.21 (1982)).
Because the plaintiffs failed to prove that any plaintiff suffered an injury in fact, I
join Part III-A of the majority opinion holding that the plaintiffs failed to establish
standing and thus the district court lacked jurisdiction to reach the merits.
The absence of injury in fact defeats standing; there is no need to go further.
But the majority does not stop here. In Part III-B, the majority opinion announces
alternative holdings that the plaintiffs lack standing because, even assuming they
proved injury, their injury was not fairly traceable to the Secretary of State or
redressable in a lawsuit against her because under Florida law different
government officials—county election supervisors—are responsible for preparing
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the ballots listing the candidates in order.2 I believe that the questions of Florida
law we must resolve to decide traceability and redressability—in ordering
candidates’ names on ballots, what role does the Secretary of State play and does
she exercise sufficient authority over county election supervisors?—are
considerably harder than the majority makes them out to be. I cannot agree with
the majority’s decision to forge ahead nonetheless and reach alternative holdings
that depend on resolving unsettled and difficult questions of state law about the
scope of a state official’s role and the extent of her power. What’s more, in
holding that the plaintiffs failed to establish traceability or redressability, the
majority unveils a new understanding of those concepts that imposes a heavier
burden on the plaintiffs than our precedent supports and creates a split with
authority from other circuits. I respectfully dissent from Part III-B of the majority
opinion because I believe that principles of judicial restraint counsel us to refrain
from addressing traceability and redressability.3
2
There is no question that the majority opinion reaches alternative holdings here because
any one of these three independent grounds would mean that the plaintiffs lacked standing to
pursue the case. See Evans v. Ga. Reg’l Hosp., 850 F.3d 1248, 1255-56 (11th Cir. 2017).
3
In his separate concurrence, Judge William Pryor offers another reason why this lawsuit
should be dismissed, that it presents a non-justiciable political question. He argues that the
Supreme Court’s recent decision in Rucho v. Common Cause, 139 S. Ct. 2484 (2019), “compels
the conclusion that this complaint presents a nonjusticiable political question.” Concurrence at
44. I cannot agree that Rucho compels that conclusion when the Supreme Court indicated that its
reasoning was specific to the gerrymandering context, which the Court described as one of the
“most intensely partisan aspects of American political life.”
Rucho, 139 S. Ct. at 2507. Because
Judge William Pryor’s concurrence reflects only his own views and not those of the majority, I
address the application of the political question doctrine no further.
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I.
As the majority opinion reflects, the issues of traceability and redressability
turn on our interpretation of Florida law. To establish that their injury was
traceable to the Secretary of State’s conduct, the plaintiffs had to prove a “causal
connection” between their injuries and the conduct they complained of. Focus on
the Family v. Pinellas Suncoast Transit Auth., 344 F.3d 1263, 1273 (11th Cir.
2003). To establish that their injury was redressable by suing the Secretary, the
plaintiffs had to prove that it was “likely, as opposed to merely speculative” that
their hypothetical injury would “be redressed by a favorable decision” against her.
Loggerhead Turtle v. Cty. Council of Volusia Cty.,
148 F.3d 1231, 1253 (11th Cir.
1998) (internal quotation marks omitted). In deciding whether the plaintiffs could
satisfy the traceability and redressability requirements, then, we must consider the
extent of the Secretary of State’s authority under Florida state law when it comes
to ballot ordering.
According to the majority opinion, the plaintiffs failed to establish
redressability or traceability because Florida law tasks county election supervisors,
“independently of the Secretary, with printing the names of candidates on ballots in
the order prescribed by the ballot statute.” Maj. Op. at 24-25. The majority
opinion interprets Florida law as (1) placing all responsibility for the ordering of
candidates on the ballots with the county election supervisors, thus giving the
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Secretary no “role in determining the order in which candidates appear on ballots,”
and (2) giving the Secretary no control over the county election supervisors. Id. at
25-26. Notably, no Florida court has ever held that the Secretary of State’s
authority is so limited. Perhaps even more remarkable, the majority’s argument
about the Secretary of State’s authority is one that she herself never raised in this
case, even though, as the majority opinion demonstrates, it would have been to her
advantage.4 And yet the majority opinion concludes that this case presents a
straightforward question about the proper interpretation of Florida’s Election Code.
I urge that we abstain from alternative holdings on traceability and
redressability because these issues turn on questions about how the state of Florida
has structured its government to divide power between state and local officials in
the crucial function of holding elections. These are questions that are best
answered by Florida state courts. Reading Florida’s Election Code in the absence
of such guidance, however, I think the better answer to the question whether the
Secretary of State plays a sufficient role in setting ballot order and exercises
adequate control over the county election supervisors to support standing is “yes.”
4
The majority opinion downplays the significance of the Secretary of State’s decision not
to argue traceability or redressability in this case by suggesting that it was simply a strategic call
not to raise these arguments before a district court judge who had repeatedly rejected them in
other cases. But this supposition fails to account for the Secretary’s decision not to argue
traceability and redressability in her briefing on appeal. See Ouachita Watch League v. Jacobs,
463 F.3d 1163, 1169-70 (11th Cir. 2006) (recognizing that a party may raise a jurisdictional issue
for the first time on appeal).
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In this section, I review the provisions in Florida’s Election Code defining the
scope of the Secretary of State’s authority, with emphasis on three provisions that
the majority opinion seems to misapprehend. Importantly, if the majority
opinion’s understanding of Florida law is wrong, so are its holdings on traceability
and redressability.
A.
To understand the scope of the Secretary of State’s authority, we must
interpret Florida’s Election Code, following Florida’s rules of statutory
construction. See Robbins v. Garrison Prop. & Cas. Ins. Co., 809 F.3d 583, 586
(11th Cir. 2015). Those rules provide that “legislative intent is the most important
factor that informs our analysis.” Quarantello v. Leroy,
977 So. 2d 648, 651 (Fla.
Dist. Ct. App. 2008). Legislative intent must be gleaned “primarily from the text
of the statute,” focusing on “the actual language used by the Legislature.”
Id.
(internal quotation
marks omitted). In examining statutory text, courts in Florida
“will not look merely to a particular clause in which general words may be used,
but will take in connection with it the whole statute.”
Id. (internal quotation
marks
omitted); see also Orange Cty. v. Singh,
268 So. 3d 668, 671 n.4 (Fla. 2019) (“In
construing the Florida Election Code, it is necessary to read all provisions in pari
materia.”).
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When we look at Florida’s Election Code as a whole, we see that the Florida
Legislature has divided responsibility for administering elections among state and
local officials. The Secretary of State, appointed by the governor, serves as the
head of the Department of State, oversees its Division of Elections, and is charged
with “general supervision and administration of the election laws.” See Fla. Stat.
§§ 15.13; 20.10(1), (2)(a). The Secretary is the “chief election officer of the state”
responsible for “[o]btain[ing] and maintain[ing] uniformity in the interpretation
and implementation of the election laws.” Id. § 97.012(1). To maintain this
uniformity, the Department of State may “adopt by rule uniform standards for the
proper and equitable interpretation and implementation of the requirements of
chapter 97 through 102 and 105 of the Election Code.”
Id. 5 The ballot-order
statute is found in chapter 101.
Although the Secretary of State plays a role in overseeing elections across
the state, most of the work in administering elections occurs at the county level.
Each of Florida’s 67 counties elects its own election supervisor who oversees how
elections in her county are conducted. See id. § 98.015(1). Each supervisor is
5
This provision excludes two chapters of the Election Code, 103 and 104, from the
Department of State’s power to adopt uniform standards for the interpretation and
implementation of the requirements of the other chapters. Chapter 103 primarily addresses the
procedures that govern the electors who cast Florida’s votes for President of the United States in
the electoral college, Fla. Stat. §§ 103.011-103.141, and Chapter 104 sets forth criminal penalties
for violating Election Code provisions, id. §§ 104.011-104.43. Neither chapter is relevant to the
issues before us.
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responsible for appointing an election board, comprised of poll workers for each
precinct in the county, that conducts the voting in each precinct on election day.
See id. § 102.012(1), (4). The supervisor’s responsibilities also include “updat[ing]
voter registration, enter[ing] new voter registrations into the statewide voter
system, and act[ing] as the official custodian of documents” related to elector
registration “and changes in voter registration status.”
Id. § 98.015(3).
Most relevant here, county election supervisors print the ballots that voters
use. Before a general election, the Department of State certifies to each county
election supervisor the names of the candidates running for office that are to appear
on ballots in that county. Id. § 99.121. The Election Code then directs that the
“names of such persons shall be printed by the supervisor of elections upon the
ballot in their proper place as provided by law.”
Id. Based solely on this language,
the majority opinion concludes that election supervisors set the order of the
candidate’s names on the ballot. From there, the majority opinion concludes that
the Secretary of State exercises no control over how Florida election supervisors
carry out their duty to order ballots because under Florida’s state constitution and
the Election Code the county officials are elected by the voters, and the Secretary
of State does not appoint them, does not compensate them, may not suspend them,
and may not remove them from office.
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My concern is that the majority opinion’s analysis of Florida law is
incomplete because it reads provisions of Florida’s Election Code in isolation,
contrary to Florida’s rules of statutory construction. In particular, the majority’s
interpretation fails to appreciate the effect of three relevant provisions of the Code,
which suggest that the Florida Legislature intended for the Secretary of State to
play a substantive role in setting the ballot order and overseeing how election
supervisors carry out their duties in this regard.
The first provision the majority opinion largely overlooks is the one in
which the Florida Legislature charges the Department of State with “adopt[ing]
rules prescribing a uniform primary and general election ballot.” See
id.
§ 101.151(9)(a). These rules must incorporate the requirements of § 101.151—
which includes the ballot-order scheme in subsection (3)(a)—and may “prescribe
additional matters” including rules governing “[i]ndividual race layout.” See
id.
§ 101.151(9)(a). Among other things, the Department’s “rules must graphically
depict a sample . . . general election ballot form.”
Id. § 101.151(9)(b). The
Department’s form ballots incorporate the ballot-ordering scheme. See, e.g., Form
Official General Election Ballot, DS-DE 207 (eff. Sep. 12, 2018), available at
https://www.flrules.org/Gateway/reference.asp?No=Ref-06441 (last accessed April
28, 2020); see also Fla. Admin. Code Ann. r. 1S-2.032(15)(b) (2020) (stating that
the ballot form is incorporated by reference into the Secretary’s rules). This is
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consistent with the Secretary of State’s explanation at oral argument that after the
primary elections, “we have a ballot order that the [Secretary of] State provides to
the [county election] supervisors . . . then they design and set the ballot per the
order that is provided by the State.” Oral Argument Recording at 36:10-36:46.6
Indeed, the Elections Code’s use of the terms “prescribing” and “prescribe”
when describing the Secretary of State’s power to make rules governing general
election ballots and individual race layout confirms that the Florida Legislature
granted the Secretary of State authority to direct election supervisors when they
perform the task of preparing ballots, including the ordering of candidates. The
plain meaning of “prescribe” is “[t]o make an authoritative ruling.” Prescribe, The
Oxford English Dictionary (online ed.) (last accessed April 27, 2020); see Nehme
v. Smithkline Beecham Clinical Labs., Inc., 863 So. 2d 201, 205 (Fla. 2003)
(explaining that under Florida law, “[w]hen necessary, the plain and ordinary
meaning of words can be ascertained by reference to a dictionary” (internal
quotation marks omitted)). In trying to discover what the Florida Legislature
intended when it adopted the Election Code, I cannot imagine that when it directed
6
A fuller quotation provides insight into the division of responsibility between the
Secretary of State and county election supervisors:
[A]fter the primary we have a ballot order that the [Secretary of] State provides to
the supervisors. And they set their ballots choosing their preferred printer, their
preferred software, their preferred machines that have all been approved. And then
they design and set the ballot per the order that is provided by the State.
Oral Argument Recording at 36:10-36:46.
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the Secretary to adopt rules incorporating the requirements of the ballot-order
statute in “prescribing” general election ballots, it contemplated that county
supervisors administering those elections would not be required to follow them.
This should have been enough to give the majority pause, but there is a
second provision that the majority opinion misapprehends. Section 97.012(16)
authorizes the Secretary of State to “[p]rovide written direction and opinions to the
supervisors of elections on the performance of their official duties with respect to
the Florida Election Code or rules adopted by the Department of State.” Fla. Stat.
§ 97.012(16). This provision appears to flatly contradict the majority’s opinion
that the Secretary plays no role in and has no authority over the election
supervisors’ “performance of their official duties with respect to the Florida
Election Code” when it comes to the Code’s ballot-order provision. Id.
The power to issue written “direction” to election supervisors, according to
the term’s plain and ordinary meaning, is the power to “instruct[]” the election
supervisors on “how to proceed or act” in carrying out their official duties and to
give them “authoritative guidance.” Direction, The Oxford English Dictionary
(online ed.) (last accessed April 27, 2020).7 Again, why would the legislature
7
As an example, the Secretary of State recently issued a directive instructing how county
election supervisors are to carry out their statutory duties under Fla. Stat. § 101.657 to select sites
for early voting. See Fla. Dep’t of State, Directive 2020-01—Early Voting Sites on College &
University Campuses and Fla. Stat. 101.657(1)(a) (Apr. 2, 2020),
https://dos.myflorida.com/media/702989/directive-2020-01.pdf. Under Florida law, election
supervisors must operate early voting sites. See Fla. Stat. § 101.657(1)(a). An election
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include such a provision if it intended that the election supervisors had no
obligation to follow the Secretary’s directions and opinions?
This brings me to the third provision of the Florida Election Code that the
majority opinion neglects to afford the significance I believe is due. As the
majority opinion points out, § 97.012(14) gives the Secretary of State the power to
bring an action at law or in equity by mandamus or injunction “to coerc[e]” a
county supervisor of elections to perform any duties with respect to the Election
Code or to comply with any rule adopted by the Department of State. Maj. Op. at
26; see Fla. Stat. § 97.012(14). The majority opinion views this provision as
evidence that the Secretary of State lacks authority over the election supervisors
because she must rely on the judicial process to coerce an election supervisor to
comply.
supervisor may conduct early voting only at certain locations, such as a main or branch office of
the election supervisor, a city hall, a permanent public library facility, a fairground, a civic
center, or a courthouse. Id. In selecting early voting sites, the election supervisor must “provide
all voters in the county an equal opportunity to cast a ballot, insofar as is practicable” and ensure
that there is “sufficient nonpermitted parking to accommodate the anticipated amount of
voters.”
Id.
In Directive 2020-01, the Secretary of State instructed election supervisors how to
perform these duties. She explained to election supervisors that they were not required to limit
early voting sites to locations that “have a certain number of nonpermitted parking” spots but
must ensure that the “early voting sites collectively within a county” provide sufficient
nonpermitted parking spots to accommodate the anticipated number of early voters. Directive
2020-01 at ¶¶ 7-8. She then listed factors for election supervisors to consider when determining
whether the early voting sites offered sufficient parking.
Id. at ¶ 8. Although the county election
supervisors are elected county officials who operate outside the Department of State, this
directive demonstrates that the Secretary of State issues binding written directions to instruct
them on the performance of their official duties under the Election Code.
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I lack the majority’s confidence that this provision signals the Secretary’s
lack of authority over the election supervisors. I find it significant that the Florida
Legislature expressly gave the Secretary of State a cause of action, particularly a
mandamus action—an “extraordinary remedy”—to compel an election supervisor
to follow the Department of State’s rules. State ex rel. Perkins v. Lee, 194 So. 315,
317 (Fla. 1940). After all, it is well-established under Florida law that a writ of
mandamus is available only when the duty sought to be coerced is “ministerial in
nature” and the “respondent is under a clear legal duty to act.” State ex rel.
Cherry v. Stone,
265 So. 2d 56, 57 (Fla. Dist. Ct. App. 1972) (emphasis added). If
county election supervisors are under a clear legal duty to follow her Department’s
rules, then it cannot be true that the Secretary lacks the authority to direct them.
Rather than supporting the majority opinion’s conclusion, § 97.012(14) appears to
undercut it by showing that the Secretary of State possesses the authority to compel
election supervisors to perform their duties in accord with her rules and directives.8
8
It is true that the Secretary of State does not appoint county election supervisors and has
no power to suspend them or remove them from office, but I think the majority infers too much
from these facts. The Florida Legislature designed a system of government in which the
Secretary of State lacks these particular powers but nonetheless possesses the authority to
oversee and direct how local officials carry out their duties, to ensure compliance with state
election law and maintain uniformity of election procedures throughout the state.
Furthermore, although mandamus may seem like an indirect and inefficient remedy, after
a more fulsome look at the Secretary’s authority, I think it is reasonable to assume that the
mandamus power would need to be exercised only rarely.
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When all of these provisions are read together as a unified whole, it appears
to me that the Code gives the Secretary of State the power to set ballot-order rules
and control how election supervisors organize ballots. To be clear, I am not
answering these questions of Florida state law, which, as I explain below, should
be answered by Florida state courts. But I am confident that the majority opinion’s
conclusions about the limits of the Secretary of State’s authority rest on a woefully
incomplete analysis of Florida’s Election Code.
B.
If the majority opinion is wrong about the scope of the Secretary of State’s
authority under Florida law, that would mean that the plaintiffs satisfied the
standing requirements of traceability and redressability. Let me explain. First,
traceability: If the Secretary plays a role in ordering candidates’ names on general
election ballots following the ballot-order statute, any hypothetical injury the
plaintiffs suffered as a result of Florida’s ballot-order law would, at a minimum,
“flow indirectly from” the Secretary’s actions. Focus on the Family, 344 F.3d at
1273 (recognizing that the traceability inquiry is “concerned with something less
than the concept of proximate cause” (internal quotation marks omitted)).
The fact that the plaintiffs’ hypothetical injuries also could be fairly traced to
the county election supervisors does not change the analysis. An injury cannot be
“the result of the independent action of some third party not before the court.”
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Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (emphasis added) (alterations
adopted) (internal quotation marks omitted). But standing “is not defeated merely
because the alleged injury can be fairly traced to the actions of both parties and
non-parties.” Loggerhead
Turtle, 148 F.3d at 1247.
Now, redressability: A hypothetical injury arising from the challenged law
would have been redressed by the district court’s injunction, which, among other
things, directed the Secretary of State not to “enforce . . . the ballot order scheme
described in section 101.151(3)(a).” Doc. 202 at 72. Under this injunction, the
Secretary would have to cease providing county election supervisors with form
ballots and promulgating rules and regulations that effectuated the Election Code’s
ballot-order scheme—meaning that when preparing ballot forms the Secretary
would have to use a different method for ordering the candidates for each office.
She could have selected any method other than putting candidates from the
governor’s political party first in every race. As the Secretary has explained, her
department provides each county election supervisor with a list of candidates in the
order required by the ballot-order statute. Given that the Secretary provides the
lists and oversees and directs how the county election supervisors carry out their
duties, it seems “likely, as opposed to merely speculative” that any hypothetical
injury the plaintiffs suffered as a result of enforcement of the ballot-order statute
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would be redressed by the district court’s relief. Loggerhead Turtle, 148 F.3d at
1253 (quoting
Lujan, 504 U.S. at 561).
The majority opinion’s primary argument about traceability and
redressability is that the Secretary of State lacks a sufficient connection to
Florida’s ballot-order scheme because she plays no role in setting ballot order and
exercises no control over county election supervisors who set ballot order. As I
explained above, the majority opinion reaches this conclusion only by ignoring, for
the most part, three key provisions of Florida’s Election Code. When the majority
opinion finally gets around to acknowledging these three provisions, it shifts gears
and raises an entirely new argument—that when a state official exercises authority
conferred on her by state law to promulgate rules and regulations under a statute,
the official does not “enforce” the statute. Maj. Op. at 34 (emphasis omitted)
(internal quotation marks omitted). The majority opinion warns that if we were to
conclude that the Secretary’s rule-making power gives her the authority to enforce
the Election Code, “plaintiffs could presumably also challenge a law by suing the
legislators who enacted it instead of the officials who execute it.” Id.
I disagree that the statutory scheme reveals that the Secretary of State does
not enforce the ballot-order statute. To me, the Secretary of State’s role in
elections, specifically ballot ordering, points more clearly to the conclusion that
she enforces the statute. The Secretary prepares and provides to county election
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supervisors uniform ballot forms that incorporate the ballot-order scheme,
promulgates rules under the Election Code including the ballot-order statute, and
oversees how county election supervisors carry out their duties, all in fulfilling her
responsibility (hers alone) to maintain uniformity in the interpretation and
implementation of the Code throughout the state. See Fla. Stat. §§ 97.012(1), (14),
(16); 101.151(9). The majority opinion accepts that the Secretary “instruct[s]”
supervisors about ballot order. Maj. Op. at 34. Yet it cites no authority supporting
its conclusion that a state official afforded these sorts of responsibilities does not
enforce the statute. Nor does it cite any authority suggesting that an executive-
branch state official who carries out such responsibilities has a similar relationship
to the enforcement of the statute as a state legislator who voted to enact it.
Given all of this, I think the better conclusion is that the Secretary of State’s
enforcement connection with the ballot-order statute is sufficient to establish that
any injury the plaintiffs suffered “flow[ed]” at least “indirectly” from her actions
and that it is “likely” that any such injury would be redressed by injunctive relief
against the Secretary. Focus on the Family, 344 F.3d at 1273. I recognize that in
this case the issues of traceability and redressability both turn on the Secretary’s
role in enforcing the ballot-order statute. But this is hardly surprising because
often “redressability and traceability overlap as two sides of a causation coin.”
Nova Health Sys. v. Gandy,
416 F.3d 1149, 1159 (10th Cir. 2005) (internal
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quotation marks omitted); see also Dynalantic Corp. v. Dep’t of Def., 115 F.3d
1012, 1017 (D.C. Cir. 1997) (same).
To support its argument that the Secretary of State lacks a sufficient
connection to the statute’s enforcement, the majority opinion relies on our recent
en banc decision in Lewis v. Governor of Alabama, 944 F.3d 1287 (11th Cir. 2019)
(en banc). Lewis concerned the Birmingham city council’s passage of an
ordinance raising the minimum wage for workers in the city.
Id. at 1292. In
response, the Alabama Legislature adopted a statewide minimum-wage law,
effectively nullifying Birmingham’s ordinance.
Id. at 1292-93. Employees who
worked in Birmingham, along with several public interest groups, sued the
Attorney General of Alabama, claiming racial discrimination under multiple
theories. The plaintiffs sought as relief a declaration that the state statute was
unconstitutional and an injunction ordering the Attorney General to notify the
legislature and the public of the statute’s invalidity.
Id. at 1294-95. In considering
traceability, we concluded that the Attorney did not enforce the statute because it
“envision[ed] no role for the Attorney General.”
Id. at 1299. And in reviewing
redressability, we reasoned that because the “Attorney General played no
enforcement role whatsoever” with respect to the minimum wage law, a judgment
against the Attorney General would not “directly redress” the plaintiffs’ injury.
Id.
at 1301-02 (internal quotation marks omitted).
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The majority opinion argues that our reasoning in Lewis shows that the
Secretary of State does not enforce the ballot-order statute. But this case is not
Lewis because here the Secretary of State plays a substantial role in the statutory
scheme at issue. Lewis does not help the majority in going further; once we
concluded that the Alabama Attorney General had no role in enforcing the statute,
we did not address the type of enforcement role a state official must have to satisfy
traceability or redressability.
The majority opinion seeks to fill this silence by making new rules about the
role a state official must have with respect to a challenged statute to establish
traceability and redressability. But neither Supreme Court nor this Circuit’s
precedent imposes such a heavy burden on plaintiffs challenging state laws. I note
further that when confronted with cases in which defendant state officials carried
out similar responsibilities with respect to challenged laws, our sister circuits have
concluded that the officials were enforcing the law sufficiently to confer standing.
See OCA-Greater Houston v. Texas, 867 F.3d 604 (5th Cir. 2017); Calzone v.
Hawley,
866 F.3d 866 (8th Cir. 2017).
In a case strikingly similar to this one, the Fifth Circuit considered whether
the plaintiff established traceability and redressability for standing purposes in a
lawsuit against Texas’s Secretary of State. The court resolved both issues by
concluding that the Secretary had a sufficient “enforcement connection with” a
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challenged state statute regarding the administration of elections. 9 See OCA-
Greater Houston, 867 F.3d at 613-14 (internal quotation marks omitted). When a
citizen with a limited ability to communicate in English sought to have her son
serve as an interpreter for her while she voted, local officials refused, citing a
Texas statute allowing an interpreter to assist a voter only if the interpreter was
registered to vote in the voter’s county of residence.
Id. at 607-09. In a lawsuit
against the Secretary of State challenging the Texas statute on federal preemption
grounds,
id. at 609, the Secretary argued that the voter’s injury was neither fairly
traceable to him nor redressable in a lawsuit against him and instead was the result
of actions by county officials who applied the statute to prohibit her son from
serving as an interpreter.
Id. at 612-13. The Fifth Circuit rejected his argument.
To determine whether the plaintiff’s injury was fairly traceable to the
Secretary and redressable in litigation against the Secretary, the court considered
whether under Texas law the Secretary had a role in enforcing the challenged
statute. See id. at 613-14. The court explained that a state official had “no
enforcement connection with the challenged statute” when he had no “duty or
ability to do anything” with respect to the challenged law.
Id. (emphasis omitted)
9
In an amicus brief filed in this case, Texas’s Attorney General emphasized the
similarities in how Florida and Texas have chosen to administer elections. In both states local
officials, who operate outside the Department of State and may not be removed from office by
the Secretary of State, prepare ballots, while the Secretary of State is tasked with obtaining and
maintaining uniformity in the application of the state’s election laws.
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(internal quotation marks omitted). Because by law the Secretary of State was the
“chief election officer of the state” and was “instructed by statute to obtain and
maintain uniformity in the application, operation, and interpretation” of Texas’s
election code, the court concluded, he had a sufficient “enforcement connection
with the challenged statute” in the election code to establish traceability and
redressability. Id. at 613-14 (internal quotation marks omitted).
Florida’s Secretary of State enjoys the same powers and responsibilities as
the Texas Secretary. At the risk of beating a dead horse, I reiterate that she serves
as Florida’s “chief election officer,” Fla. Stat. § 97.012; is instructed by statute to
“obtain and maintain uniformity in the interpretation and implementation” of
Florida’s Election Code, id. § 97.012(1); and is empowered by statute to
promulgate rules to implement the statute in questions,
id. § 101.151(9). The
majority opinion’s holding that she lacks a sufficient enforcement connection with
the ballot-order statute to satisfy traceability and redressability is directly contrary
to the Fifth Circuit’s holding in OCA-Greater Houston.
The majority opinion’s determination that the Secretary of State does not
enforce the ballot-order statute also is in tension with a decision from the Eighth
Circuit, albeit one outside of the election context. The Eighth Circuit held that for
the purpose of standing a state official played a sufficient role in enforcing a
challenged statute when state law authorized her to promulgate rules and
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regulations to implement the statute. See Calzone, 866 F.3d at 870. In Calzone, a
truck driver sued, among others, the superintendent of Missouri’s state highway
patrol after the driver was cited for refusing to permit a state highway patrol officer
to inspect his vehicle under a Missouri law that authorized officers to stop any
commercial vehicle to police its compliance with size and weight restrictions.
Id.
at 869. The driver challenged the state statute as unconstitutional.
Id.
On appeal, the Eighth Circuit held that the driver had standing to sue the
superintendent.
Id. at 870. Although the superintendent was not involved in the
stop or citation, the court held that the driver’s injuries were traceable to her and
redressable in a lawsuit against her because the driver was stopped under the state
statute that authorized patrol officers to stop commercial vehicles, and the
superintendent had adopted rules and regulations to implement the statute.
Id.
(citing Mo. Rev. Stat. § 304.230.1). The court accepted that the superintendent’s
adoption of rules and regulations led the officer to “implement the statute by
conducting vehicle inspections,” which caused the driver’s injury. The driver’s
injuries thus were traceable to her and redressable against her.10
Id. Under
10
The Eighth Circuit drew the conclusion that the superintendent’s promulgation of rules
and regulations led the highway patrol officer to conduct the stop, even though another provision
of the state statute separately authorized the officers to conduct suspicionless stops, meaning that
the officer could have conducted the stop regardless of any rules or regulations the
superintendent adopted. See
Calzone, 866 F.3d at 870-71 (citing Mo. Rev. Stat. § 340.230.2).
Despite the highway patrol officers’ independent statutory authorization to perform suspicionless
stops, the court concluded that the driver’s injury bore a sufficient causal connection to the
superintendent’s actions to be traceable to and redressable against her. See
id. at 870.
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Calzone’s reasoning, the fact that Florida law authorizes the Secretary of State to
promulgate rules and regulations to implement the ballot-order statute is sufficient
to establish that she enforces the law.
The majority opinion creates a circuit split on the connection a state official
must have with a challenged state statute for a plaintiff to satisfy traceability and
redressability. Although “intercircuit splits on points of law are not all bad,” we
should have good reasons for creating one. Pub. Health Tr. of Dade Cty. v. Lake
Aircraft, Inc., 992 F.2d 291, 295 n.4 (11th Cir. 1993) (“[W]e do not create
intercircuit splits lightly.”). I remain unconvinced that there are good reasons here.
The majority opinion raises an additional argument regarding redressability:
that an injunction directed to the Secretary of State would not redress the plaintiffs’
injuries because the relief would not alter the conduct of the county election
supervisors who print the ballots. According to the majority opinion, there is
nothing to suggest that any relief directed to the Secretary would change how
county election supervisors prepare their ballots. I disagree. If the district court
directed the Secretary of State to cease providing ballot forms that list candidates
from the governor’s party first for every office, it is likely that county election
supervisors would follow the Secretary’s official guidance under the authority
granted her by state law. True, I cannot definitely say that when faced with a
conflict between the Secretary of State’s directions and the statute, the county
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election supervisors would not reverse their customary course, stop relying on
form ballots or lists from the Secretary, ignore the Department of State’s rules and
directives, and follow the statute instead. Maybe in practice some would. But that
does not make redress from the court’s order “speculative” as a legal matter.11
In reaching the opposite conclusion, the majority opinion splits from the
Fourth Circuit, which—when faced with analogous facts—found a sufficient
likelihood that local officials would follow the state official’s instructions,
regardless of the statute. Bostic v. Schaefer, 760 F.3d 352, 370-71 (4th Cir. 2014).
In Bostic, two same-sex couples brought a constitutional challenge to Virginia’s
state statutes and state constitutional amendment that prohibited same-sex
marriage.
Id. at 367-68. The couples sued two defendants: the clerk of a circuit
court, who had denied one of the couples a marriage license, and the state registrar
for vital records, who was responsible for developing a marriage license
application form and distributing it to circuit court clerks throughout Virginia.
Id.
at 369, 371.
11
To bolster its opinion, the majority opinion cites to the trial testimony of a single
former county election supervisor that he applied the ballot statute because it is the law. The
former election supervisor gave this testimony while recounting that voters occasionally asked
him why Republican candidates appeared at the top of their ballots. He would respond to the
voter that the order was set by the statute and he was applying the statute. No testimony at trial
addressed what this or any other county election supervisor would do if the ballot order from the
Secretary of State did not follow the statute. Regardless, such testimony is irrelevant to the legal
question of whether state law gives the Secretary enforcement authority over county election
supervisors sufficient to meet the standards for traceability and redressability.
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On appeal, the Fourth Circuit held that the couples had standing to sue the
state registrar for vital records because the registrar’s “promulgation of a marriage
license application form that does not allow same-sex couples to obtain marriage
licenses” resulted in the couples being denied marriage licenses. 12 Id. at 371-72.
The Fourth Circuit determined that the registrar was “enforc[ing]” Virginia’s
marriage laws by developing and circulating license forms that did not allow same-
sex couples to obtain marriage licenses.
Id. at 372. The court explained that the
registrar’s actions “resulted in” local officials denying marriage license requests
from same-sex couples, id.—despite the fact that if the registrar had distributed
forms that permitted same sex-couples to apply for marriage licenses, Virginia law
still would have prohibited local officials from issuing marriage licenses to same-
sex couples, see
id. at 367-68 (cataloguing Virginia laws prohibiting same-sex
marriage).
Applying the majority opinion’s logic, even if a federal court ordered the
Virginia registrar to cease issuing marriage application forms that barred same sex
marriage, a local clerk who issued marriage licenses could have refused to issue a
same-sex couple a marriage license on the ground that Virginia law continued to
12
The Fourth Circuit also concluded that the plaintiffs had standing to sue the clerk who
had denied one of the couples a marriage license. But the court made clear that the inclusion of
the clerk as a defendant did not establish that the couples had standing to sue the registrar,
because the standing requirements had to be satisfied as “to each defendant.” Bostic, 760 F.3d at
370-71.
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bar same-sex marriages. See id. at 368. But the Fourth Circuit did not see it that
way. To state the obvious, the Secretary of State plays a similar role in issuing
sample ballots and lists of candidates as the Virginia registrar did in issuing
marriage license forms.
To wrap up, there are strong reasons to doubt the majority opinion’s
interpretation of Florida law and resulting conclusions about the role the Secretary
of State plays in implementing Florida’s ballot-order statute. If the majority
opinion is wrong about Florida law—meaning that in fulfilling her duties the
Secretary of State enforces the ballot-order statute—then in my view she has a
sufficient connection to the statutory scheme to satisfy traceability or
redressability. The majority opinion’s argument that a state official who performs
these duties does not “enforce” the law lacks any support in our precedent and
conflicts with decisions from several other circuits.
II.
Because it is far from clear that Florida law limits the Secretary of State’s
authority in the way the majority outlines, I believe that principles of judicial
restraint direct us to abstain from issuing alternative holdings on redressability or
traceability and to decide this case solely on the basis that the plaintiffs failed to
prove an injury in fact. The “cardinal principle of judicial restraint” is “if it is not
necessary to decide more, it is necessary not to decide more.” PDK Labs. Inc. v.
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Drug Enf’t Admin., 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring).
Of course, we do not always adhere to this prudential principle. At times
principles of judicial economy or other considerations may guide us to resolve an
appeal by giving multiple, alternative holdings. See Evans v. Ga. Reg’l Hosp.,
850 F.3d 1248, 1255-56 (11th Cir. 2017); see also Karsten v. Kaiser Found.
Health Plan of Mid-Atl. States, Inc.,
36 F.3d 8, 11 (4th Cir. 1994).
But just because we may offer alternative holdings does not mean that we
should. The Supreme Court has cautioned that when a court can “readily” dispose
of a case on one threshold ground, it should refrain from offering alternative
holdings resting on other threshold grounds that are “difficult to determine.”
Sinochem Int’l Co. v. Malay. Int’l Shipping Corp., 549 U.S. 422, 436 (2007).
Putting its advice into practice, in Lujan, a majority of the Court declined to
resolve the issue of standing on different grounds through alternative holdings. In
Lujan, Justice Scalia authored an opinion that concluded in Part III-A that the
plaintiffs failed to establish an injury fact and in Part III-B that the plaintiffs failed
to establish
redressability. 504 U.S. at 561-71. Although Justice Scalia delivered
the opinion of the Court in Part III-A, Part III-B was a plurality opinion in which
only three justices joined. See
id. at 556. In a separate concurrence, Justice
Kennedy, joined by Justice Souter, explained that he joined Part III-A but not Part
III-B of Justice Scalia’s opinion because “[i]n light of the conclusion that
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respondents have not demonstrated a concrete injury here sufficient to support
standing,” there was no need to reach redressability. Id. at 579-80 (Kennedy, J.,
concurring in part and concurring in the judgment). I would follow the Justices’
lead in Lujan and resolve this case on only one standing ground.
This principle applies with even greater force when the alternative holding
rests on difficult questions of state law. State courts are “the ultimate expositors of
state law,” Mullaney v. Wilbur, 421 U.S. 684, 691 (1975), and so “it is axiomatic
that [a state’s supreme court] is the best one to decide issues” of that state’s law.13
Blue Cross & Blue Shield of Ala., Inc. v. Nielsen,
116 F.3d 1406, 1413 (11th Cir.
1997). When we decide questions of state law, unique federalism concerns arise.
We risk creating “needless friction with state policies,” trampling on the “rightful
independence of the state governments,” and upsetting “harmonious relation[s]
between state and federal authority.” Quackenbush v. Allstate Ins. Co.,
517 U.S.
706, 717-18 (1996) (internal quotation marks omitted); see Knick v. Township of
Scott,
139 S. Ct. 2162, 2188 (2019) (Kagan., J, dissenting) (discussing the Supreme
Court’s long-held understanding that “federal courts should refrain whenever
possible from deciding novel or difficult state-law questions”). We therefore have
13
We have characterized our decisions interpreting state law as written “in faint and
disappearing ink.” LeFrere v. Quezada, 582 F.3d 1260, 1262 (11th Cir. 2009) (internal
quotation marks omitted). “[O]nce the state supreme court speaks[,] the effect of anything we
have written vanishes like the proverbial bat in daylight, only faster.”
Id. (internal quotation
marks omitted).
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recognized that principles of “[f]ederalism and comity” require us to “defer[] to
state courts on ultrasensitive state law matters.” Nielsen, 116 F.3d at 1413.
Federalism concerns that counsel us to abstain from deciding such state law
issues are even more compelling when the state law issue “sound[s] to the heart of
a state’s self-government.” Id. After all, it is “[t]hrough the structure of its
government, and the character of those who exercise government authority, [that] a
State defines itself as a sovereign.” Gregory v. Ashcroft,
501 U.S. 452, 460 (1991).
When a federal court decides novel and difficult state law questions about how the
state government is organized, the federal court may fail to afford due respect to
the state’s sovereignty.
I recognize that we retain broad discretion to decide whether to resolve a
case through alternative holdings. And whether we choose to exercise our
discretion in a particular case depends, of course, on the circumstances. Given the
circumstances here, I view this case as a textbook example of when principles of
judicial restraint caution us against making alternative holdings.
In this case, there are three potential threshold grounds on which we can
resolve this appeal. One of the grounds—that the plaintiffs failed to establish an
injury in fact—turns on a relatively straightforward question of federal law: Did
the plaintiffs present evidence that any plaintiff suffered an injury in fact sufficient
to establish standing under Supreme Court and Eleventh Circuit precedent? In
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contrast, the majority opinion’s alternative holdings that the plaintiffs failed to
prove their injuries were traceable to the Secretary of State and redressable in a
lawsuit against her require us to sort out the complex interplay of state statutes and
delve into the division of authority among state and local officials, issues that go to
the very structure of state government. And in addressing these issues, the
majority opinion lays out a theory delineating the authority of a high-ranking state
official that the official never advanced in this case.
Here, I believe that the appropriate course is to abstain from alternative
holdings on traceability and redressability. By deciding novel questions of state
law about the structure and organization of Florida’s state government, I fear that
the majority opinion fails to demonstrate proper respect for state sovereignty and
risks creating needless friction with state authority. See Gregory, 501 U.S. at 460.
On top of that, the majority opinion applies new standards for traceability and
redressability that impose heavier burdens than Supreme Court and Circuit
precedent requires, all while creating a circuit split. I respectfully dissent from Part
III-B of the majority opinion.
95
