11th Cir.: Voter groups have standing, but Fla. rule not preempted

The Eleventh Circuit held 2-1 that Florida’s voter registration system – which prevents individuals who make typographical errors on their registration forms from being registered to vote – is not preempted by federal voting laws. Florida State Conference, NAACP v. Browning, No. 07-00402 (11th Cir. Apr. 3, 2008).

The court concluded that organizations engaged in voter registration drives had standing to challenge the system, but overturned a preliminary injunction, saying the requirements did not conflict with the Help America Vote Act (HAVA) or the Voting Rights Act (VRA). The court remanded the case without addressing the plaintiffs’ constitutional claims. 

 

            Florida enacted the requirement, Fla. Stat. § 97.053(6), as part of its implementation of HAVA, 42 U.S.C. § 15301 et seq. Subsection 6 requires, as a prerequisite for being registered to vote, that (1) individuals provide either the last four digits of their Social Security numbers or their driver’s license number, and (2) the Florida Department of State successfully match the number provided with DMV or SSA records. Voters who made innocent errors, therefore, would be disenfranchised, and could not cast an ordinary or a provisional ballot.

 

            The plaintiffs alleged separate causes of action under 42 U.S.C. § 1983 and the Supremacy Clause. The availability of a cause of action was never questioned by the defendant or the court.

 

            The panel agreed with the district court that the plaintiffs had standing based on their voter registration activities. The court said that the immediacy requirement of standing was satisfied because “plaintiffs here have alleged when and in what manner the alleged injuries are likely to occur. Immediacy requires only that the anticipated injury occur with[in] some fixed period of time in the future, not that it happen in the colloquial sense of soon or precisely within a certain number of days, weeks, or months.”

 

The court also rejected the argument that the asserted injuries were not sufficiently “likely to occur” because the plaintiffs presented only probabilistic evidence, i.e. the commonality of transcription errors and numbers of likely registrants. The court said that “there is no per se rule denying standing to prevent probabilistic injuries.” It continued:

To satisfy the requirements of associational standing, all that plaintiffs need to establish is that at least one member faces a realistic danger of having his or her application rejected due to a mistaken mismatch. Given that the [plaintiffs] collectively claim around 20,000 members state-wide, it is highly unlikely – even with only a one percent chance of rejection for any given individual – that not a single member will have his or her application rejected due to a mismatch….Human fallibility being what it is, someone is certain to get injured in the end.

The plaintiffs also alleged a sufficient injury-in-fact by stating that they would have to divert scarce resources to correcting false mismatches, thus hampering their registration efforts. Even though this diversion would be in a sense “voluntary” by the organizations, it would be an inevitable result of the state’s rule. “The net effect is that the average cost of registering each voter increases, and because plaintiffs cannot bring to bear limitless resources, their noneconomic goals will suffer.”

 

            The court also held that the claims were ripe, since waiting until actual false mismatches were identified would risk not having a decision before the election, and because the preemption claims were “predominantly legal questions” not requiring much factual development.

 

            Turning to these questions, the court refused to apply a presumption against preemption, saying that “in practice it is difficult to understand what a presumption in conflict preemption cases amounts to, as we are surely not requiring Congress to state expressly that a given state law is preempted using some formula or magic words….Either Congress intended to displace certain state laws or it did not.” The court noted, however, that “hewing to congressional intent cuts both ways. Although we will not apply a presumption to give less preemptive effect than Congress intended, we will also not apply an overly broad construction of the statute’s supposed objectives to give more than Congress intended.”

 

            The court reversed the preliminary injunction against Subsection 6 because it found that the plaintiffs were unlikely to prevail on the merits. Its statutory analysis is lengthy and complex, but the general points were:

-         The provisions of HAVA regarding voter identification apply to persons who are already registered, and therefore do not limit state conditions on the registration process.

-         The right to cast a provisional ballot under HAVA likewise applies only to voters who are validly registered, and does not limit state law regarding registration

-         HAVA was not meant “to federalize voter identification standards”; its incorporation of state law in several places, and its non-comprehensive nature, indicate that was intended as a floor but not a ceiling for regulation of voter registration and identification.

-         Subsection 6 does not violate the VRA because the verification of driver’s license or Social Security numbers is “material” to voter eligibility. Although the term “material” in the VRA is subject to multiple interpretations, HAVA makes this information automatically material because states must collect it.

The majority did not reach the plaintiffs’ constitutional claims, because the district court’s injunction was based only on the statutory claims. Rather, it reversed and remanded.

 

Judge Rosemary Barkett agreed with the majority’s standing analysis but concluded that the Florida law violated both federal statutes. It violated HAVA, she said, because it “completely eviscerates provisional balloting for a group of otherwise eligible voters who make a minor mistake on their registration applications.” Moreover, she concluded that HAVA could not be interpreted to permit Subsection 6, because such an interpretation would violate the Constitution.

 

Barkett argued that the majority erred in its VRA analysis by considering only the materiality of the information concerned rather than the nature of the error. Voters’ mechanical errors in filling out forms are not material to eligibility. Indeed, she said that this sort of “inhumanly strict precision” was precisely the sort of arbitrary bar to voting the VRA was meant to prohibit.

 

Barkett argued that Florida’s system violated the Due Process Clause because the state did not notify would-be voters of its matching scheme, or even tell rejected applicants what went wrong or how to fix it. It also violated Equal Protection, she said, because the lack of a procedure to discern whether the state or the applicant made an error subjected applicants to disparate implantation across Florida’s 67 counties. Moreover, the system was an undue burden on the constitutional right to vote – particularly since other states managed to conduct elections without such a scheme.