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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION KIRK NIELSEN et al., Plaintiffs, v. CASE NO. 4:20cv236-RH-MJF RON DESANTIS et al., Defendants. _________________________________/

ACACIA WILLIAMS et al., Plaintiffs, v. CASE NO. 1:20cv67-RH-GRJ RON DESANTIS et al., Defendants. _________________________________/

GOVERNOR AND SECRETARY’S MOTION TO DISMISS

WITH INCORPORATED MEMORANDUM OF LAW

As the State of Florida starts to reopen in accordance with the Governor’s

step-by-step plan for COVID-19 recovery, the Plaintiffs seek to have this Court

rewrite Florida’s election laws based largely, if not entirely, on speculative

“concerns” or “fears” regarding the potential effect of COVID-19 on elections that

will occur months from now. For their part, the Nielsen Plaintiffs would have this

Court rewrite Florida’s Election Code to change the statutory deadlines for vote-by-

Case 4:20-cv-00236-RH-MJF Document 82 Filed 05/27/20 of 37

mail ballots, authorize unrestricted, paid-for ballot collection and delivery, and

require prepaid postage on all vote-by-mail ballots.1 The Williams Plaintiffs seek

the same relief, but would also have this Court order “Defendants to undertake

emergency actions with respect to any election in the state affected by the COVID-

19 pandemic,” including increased voter registration out-reach and related measures,

additional overhauls of the State’s vote-by-mail requirements, implementation of

various measures to ensure the “safety” and “availability” of in-person voting, and

much more. But the Constitution commits the power to administer elections and to

provide for public health, safety, and welfare to the States, not the Federal Judiciary.

And none of the Plaintiffs can point to any judicially discoverable and manageable

standards for this Court to resolve such broad claims for relief even if it were inclined

to accept Plaintiffs’ invitation to rewrite Florida’s Election Code.

This Court should dismiss Plaintiffs’ claims for numerous reasons. First, to

the extent Plaintiffs’ seek to rewrite Florida’s elections laws, their claims raise non-

justiciable political questions beyond this Court’s jurisdiction. Second, Plaintiffs

lack Article III standing because they cannot establish a cognizable injury-in-fact

1 Contrary to the Nielsen Plaintiffs’ sloganeering, Florida does not have a “Voter Assistance Ban.” Rather, the statute at issue limits the number of ballots an individual may collect and deliver for compensation to “two vote-by-mail ballots per election in addition to his or her own ballot or a ballot belonging to an immediate family member[.]” Fla. Stat. § 104.0616. Nor does Florida have a “Vote-by-Mail Postage Requirement.” Postage is a service charge imposed by the U.S. Postal Service, not the State of Florida.


attributable to the Governor or the Secretary; nor would their claims be redressable

by relief against either. Third, the Plaintiffs’ claims based on the Voting Rights Act

(“VRA”), American with Disabilities Act (“ADA”), and Rehabilitation Act do not

raise any redressable injuries against the Governor or the Secretary. Fourth,

Plaintiffs fail to state a claim that they have suffered a cognizable burden to their

right to vote or that the election laws they challenge violate their rights under the

First or Fourteenth Amendments. Finally, Plaintiffs fail to state a claim that

Florida’s vote-by-mail statute is unconstitutional under the Twenty-Fourth

Amendment simply because the U.S. Postal Service imposes service charges on its

processing and delivery of mail, regardless of the intended recipient. For all these

reasons, this Court should dismiss the Nielsen and Williams Complaints.

STANDARD FOR MOTION TO DISMISS Under Rule 12(b)(1), this Court must dismiss a complaint if it does not

establish “a basis of subject matter jurisdiction.” Menchaca v. Chrysler Credit

Corp., 613 F.2d 507, 511 (5th Cir. 1980). Subject matter jurisdiction presents

threshold questions best resolved prior to the merits. Palm Beach Golf Ctr.-Boca,

Inc. v. John G. Sarris, D.D.S., P.A., 781 F.3d 1245, 1250 (11th Cir. 2015).

Under Rule 12(b)(6), this Court must dismiss the Complaints unless well-

pleaded facts or reasonable inferences from those well-pleaded facts provide

grounds for relief. McGinley v. Houston, 361 F.3d 1328, 1330 (11th Cir. 2004). In


assessing these questions, “[i]t is not . . . proper to assume that [the plaintiff] can

prove facts that [he or she] has not alleged.” Bell Atl. Corp. v. Twombly, 550 U.S.

544, 563 n.8 (2007) (second alteration in original) (internal quotation marks and

citation omitted). To survive a motion to dismiss under Rule 12(b)(6), a complaint

must “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570.

The complaint must demonstrate “more than a sheer possibility that a defendant has

acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although this Court

must assume the veracity of well-pleaded factual allegations, it is not required to

accept legal conclusions when they are “couched as [] factual allegation[s].” Id. at

678-79. At the motion to dismiss stage, in addition to the complaint, this Court may

consider any matters appropriate for judicial notice. Tellabs, Inc. v. Makor Issues &

Rights, Ltd., 551 U.S. 308, 322 (2007).

ARGUMENT

I. THE PLAINTIFFS’ CLAIMS RAISE NON-JUSTICIABLE POLITICAL QUESTIONS TO THE EXTENT THEY SEEK TO REWRITE FLORIDA’S ELECTION LAWS.

While courts have authority to “say what the law is,” there are some questions

that are “in their nature political” and therefore beyond the jurisdiction of the courts.

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170, 177 (1803). “A federal court has

no authority to review a political question.” McMahon v. Pres. Airways, Inc., 502

F.3d 1331, 1357 (11th Cir. 2007) (citing Marbury, 5 U.S. (1 Cranch) at 137). “The


political question doctrine protects the separation of powers and prevents federal

courts from overstepping their constitutionally defined role.” Id. (citing Baker v.

Carr, 369 U.S. 186, 210 (1962)). A case may be dismissed on political question

grounds if it would require this Court to decide a question with one of the following

characteristics:

[1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

Id. at 1357–58 (quoting Baker, 369 U.S. at 217). Here, Plaintiffs’ claims for relief

plainly exhibit four of the six characteristics of non-justiciable political questions.

First, there is “a textually demonstrable constitutional commitment of the

issue[s] to a coordinate political department”—namely, the State of Florida’s elected

representatives. Baker, 369 U.S. at 217. The Elections Clause reflects “the

Constitution’s express commitment of the task of [supervising the election process]

to the States.” Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 208 (2008)

(Scalia, J., concurring) (citing U.S. Const. art. I, §4, cl. 1). Specifically, the Elections

Clause provides that the “Times, Places and Manner of holding elections ... shall be

prescribed in each State by the Legislature thereof.” U.S. Const. Art. I, §4, cl. 1.


“Just as ‘the framers of the Constitution intended the States to keep for themselves,

as provided by the Tenth Amendment, the power to regulate elections,’” Gregory v.

Ashcroft, 501 U.S. 452, 461–62 (1991) (citations omitted), the U.S. Supreme Court

has long recognized that the States have inherent police power to protect public

health and welfare. See, e.g., Barnes v. Glen Theatre, Inc., 501 U.S. 560, 569 (1991);

Jacobson v. Massachusetts, 197 U.S. 11, 25 (1905).

The Elections Clause and the history of its adoption demonstrates that “the

Framers did not envision such a primary role for the courts.” Agre v. Wolf, 284 F.

Supp. 3d 591, 599 (E.D. Pa. 2018) (three-judge court). The “manner” of conducting

elections includes “the numerous requirements as to procedure and safeguards which

experience shows are necessary in order to enforce the fundamental right involved.”

Smiley v. Holm, 285 U.S. 355, 366 (1932). These are reserved to “each State by the

Legislature thereof.” U.S. Const. art. I, §4, cl. 1. Federal courts should focus only

on enforcement of the First and Fourteenth Amendments, which are “generally

unobtrusive to States in promulgating election regulations.” Agre, 284 F. Supp. 3d

at 599; see also Curry v. Baker, 802 F.2d 1302, 1314 (11th Cir. 1986) (“Although

federal courts closely scrutinize state laws whose very design infringes on the rights

of voters, federal courts will not intervene to examine the validity of individual

ballots or supervise the administrative details of a local election.” (emphasis

added)). And, in other contexts, federal courts have also recognized that the States


have discretion to prescribe the mode or manner in which public health and welfare

goals are accomplished. See Jacobson, 197 U.S. at 25.

In this case, both Plaintiff groups clearly seek a judicial order directing the

“Times, Places, and Manner of holding elections” in Florida. Both sets of plaintiffs

seek to have this Court dictate:

• the deadlines for receipt of vote-by-mail ballots (Nielsen Complaint, at p.61, ¶B, p.66 ¶¶A and B; Williams Complaint, at p.78, ¶iv.);

• the authorized means of collecting and delivering vote-by-mail ballots (Nielsen Complaint, at p.61, ¶C, p.72 ¶¶A and B, and p.76 ¶¶A and B; Williams Complaint, at p.79, ¶vii.); and

• the means of transmitting vote-by-mail ballots (Nielsen Complaint, at p.61, ¶D, p. 66 ¶¶A and B; Williams Complaint, at p.80, ¶e.).

The Williams Plaintiffs seek to dictate even more requirements for both vote-by-mail

and in-person voting, including various measures to ensure voter “safety” and

“accessibility.” See Williams Complaint, at 77-80. As such, the Plaintiffs’ claims

unquestionably implicate the power to regulate elections, as well the power to

protect public health, safety, and welfare, both of which the U.S. Constitution plainly

commits to the political branches.

Second, by their very nature, Plaintiffs’ claims for relief raise subjective

questions for which there are no judicially discoverable and manageable standards

to resolve. See Baker, 369 U.S. at 217. For example, this Court would have to

answer the following questions: What deadline for receipt of vote-by-mail ballots


beyond election day would be “too short” to remedy Plaintiffs’ concerns about the

U.S. Postal Service’s capacity, or “too long” to disrupt the State’s process for

counting and reporting election results? What, if any, limits should this Court place

on the number of ballots a single person being compensated can collect and deliver

absent regulation and oversight without introducing an incentive for voter fraud? Is

the State’s current limit of “two [vote-by-mail] ballots per election in addition to his

or her own ballot or a ballot belonging to an immediate family member,” see Fla.

Stat. § 104.0616, “too restrictive” or is the Plaintiffs’ “no limit” proposal “too

loose”? What, if any, additional measures to protect voter “safety” would be

necessary or sufficient in light of whatever COVID-19-related public health

guidelines are in place at the time of an election? And, what additional voter

registration services, voting assistance services, or voting locations would be

“enough” to remedy Plaintiffs’ concerns about “availability”?

In that sense, this case is indistinguishable from Rucho v. Common Cause,

139 S. Ct. 2484, 2500-01 (2019), where the U.S. Supreme Court rejected efforts to

have federal courts articulate the definition of “fairness” and “how much is too

much” in the context of partisan gerrymandering. Less than two weeks ago, the U.S.

District Court for the Northern District of Georgia invoked Rucho when it dismissed

similar claims that sought to overhaul Georgia’s elections laws to impose new

“Pandemic Voting Safety Measures” for both in-person voting and vote-by-mail.


See Coalition for Good Governance v. Raffensperger, No. 1:20-cv-1677-TCB, 2020

U.S. Dist. LEXIS 86996 (N.D. Ga. May 14, 2020). In concluding that such claims

presented non-justiciable political questions, the district court recognized that “there

are no discernable and manageable standards to decide issues such as how early is

too early to hold the election or how many safety measures are enough.” Id. at *9.

“Ultimately,” the district court held that “ordering Defendants to adopt Plaintiffs’

laundry list of so-called ‘Pandemic Voting Safety Measures’ would require the Court

to micromanage the State’s election process.” Id. The Plaintiffs in this case can

offer no basis to conclude otherwise here.

Finally, to the extent Plaintiffs request this Court to order Defendants to

implement otherwise discretionary measures to mitigate the potential impact of

COVID-19 on future Florida’s elections, they implicate the third and fourth

“political question” characteristics—both of which are clearly rooted in principles

of federalism and the separation of powers—insofar as Plaintiffs’ claims are

“impossib[le] … [to] decid[e] without an initial policy determination of a kind

clearly for nonjudicial discretion” and do not permit this Court to undertake an

“independent resolution without expressing lack of the respect due coordinate

branches of government.” Baker, 369 U.S. at 217. There can be no doubt that the

Governor is leading Florida’s efforts to safely combat COVID-19. And, as the

Nielsen Plaintiffs alleged in their Complaint, the State is working with the county


supervisors and other stakeholders to address challenges that COVID-19 may pose

for future elections. See Nielsen Complaint, at p.13-14, ¶2. The Plaintiffs—and

even some of the county supervisors—may disagree with the policy decisions or

progress of such efforts, but they cannot dispute that they are within the State’s

power to address. And, moreover, they can cite no basis to invoke the jurisdiction

of a federal court to critique—much less pre-judge or dictate—such discretionary

decisions of State and local government.

“[N]o justiciable ‘controversy’ exists when parties seek adjudication of a

political question.” Massachusetts v. EPA, 549 U.S. 497, 516 (2007). Because they

invite this Court to decide nonjusticiable political questions, Counts I, II, and IV of

the Nielsen Complaint and Count I of the Williams Complaint should be dismissed.

II. THE PLAINTIFFS LACK ARTICLE III STANDING BECAUSE THEY CANNOT ESTABLISH ANY INJURY-IN-FACT THAT IS TRACEABLE TO ANY OF THE DEFENDANTS.

Article III limits the subject-matter jurisdiction of federal courts. U.S. Const.

Art. III § 2. A party invoking federal jurisdiction bears the burden of establishing

standing at the commencement of the lawsuit. Lujan v. Defenders of Wildlife, 504

U.S. 555, 561, 570 n.5 (1992); Johnson v. Bd. of Regents, 263 F.3d 1234, 1267 (11th

Cir. 2001). Standing requires pleading and proof of: “(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.” Jacobson v. Fla. Sec’y of State, No. 19-14552,


2020 U.S. App. LEXIS 13714, at *13 (11th Cir. Apr. 29, 2020) (citing Lujan, 504

U.S. at 560-61). And, “when plaintiffs seek prospective relief to prevent future

injuries, they must prove that their threatened injuries are ‘certainly impending.’”

Id. at *13 (citing Clapper v. Amnesty Int’l USA, 568 U.S. 398, 401 (2013)).

A. The individual plaintiffs lack Article III standing because they have not sufficiently alleged a cognizable injury-in-fact traceable to the Governor or Secretary.

The individual plaintiffs allege only generalized and speculative concerns that

do not constitute an injury-in-fact traceable to any of the State Defendants. As for

the Nielsen individual plaintiffs:

• Plaintiff Nielsen is a registered voter in Miami-Dade County who “intends to cast a mail ballot in upcoming elections,” but believes “there is a substantial risk that his ballot will not be counted because it will not be received by his county by the Election Day Receipt Deadline.” (Nielsen Complaint, ¶15);

• Plaintiff Outlaw is a registered voter from Okaloosa County who “will be away from her home this upcoming Fall,” and therefore “will need to cast a mail ballot,” but “will be required to acquire and pay for postage in order to cast her ballot” and believes “there is a substantial risk that [her] ballot will not be counted because it will not be received by her county by 7 p.m. on Election Day.” (Id., ¶16).

• Plaintiff Lubin is registered Florida voter who attends graduate school out of state and is “concerned about whether his mail ballot will be counted, particularly with the time it takes under normal circumstances for mail deliveries between his home in Orlando, Florida and his temporary apartment in Connecticut; and the prospect of greater delay during the pandemic gives him further concern.” Additionally, “[w]ith his demanding schedule, it is likely to take several days from when he receives his mail ballot until he can take his mail ballot to the post office.” Thus, he believes “there is a substantial risk that [his] ballot


will not be counted because it will not be received by his county by 7 p.m. on Election Day even if he sends in his ballot in advance of Election Day.” (Id., ¶17).

• Plaintiff Bruce is a registered voter in St. Lucie County, who “typically serves as a volunteer poll watcher or poll worker or provides free transportation to the polls to other Florida voters,” but “no longer believes she will be able to serve as a poll worker because of concerns about exposing herself to coronavirus.” She “does not feel it is safe to vote in person this year and will cast a mail ballot” and, therefore, “will be required to acquire and pay for postage in order to cast her ballot.” She also “fears that her mail ballot will arrive after the Election Day Receipt Deadline” because she “is particularly concerned that the anticipated surge in mail voting will overwhelm the election Supervisor’s staff and the postal service, leading to delays in delivery of mail ballots.” (Id., ¶18).

• Plaintiff Devane is a registered voter in Leon County, who “strongly prefers to vote in person to ensure that her ballot is counted, but is concerned about voting in person this year due to the coronavirus pandemic.” She “intends to vote by mail to protect her health,” but “will be required to acquire and pay for postage in order to cast her ballot” and “is concerned … that her mail ballot will arrive late and not be counted.” She “would also utilize a ballot collection service to have a trusted person personally deliver her ballot for her, if such a service were available to her.” (Id., ¶19).

• Plaintiff Davis is a 76-year-old registered voter in Pinellas County, “who usually casts his ballot by personally hand-delivering his mail ballot to his local elections office or by driving his ballot to a drop-off location. Due to the coronavirus pandemic, however, Davis does not want to take the unnecessary risk of venturing out to cast his ballot. … As a result, [he] intends to rely on the mail to cast is ballot this year[; but “must acquire and pay for postage before he can return his vote-by-mail ballot … is also particularly concerned that his ballot will not be counted if it is not received by his Supervisors’ office by the Election Day Receipt Deadline.”

• Plaintiff Jackson is an 82-year-old registered voter in Seminole County, who “believes she is particularly at risk for developing severe


complications should she contract coronavirus given her age, her asthma, and the fact that she is immunocompromised. For that same reason, while Jackson usually purchases stamps from the post office, she no longer feels comfortable putting herself at risk to do so.” She “would utilize a ballot collection service … if such a service were available to her[.]” “If such services are not available, Jackson will mail her ballot, but she is worried her ballot will not be counted if it is not received by her Supervisor’s Office until after the Election Day Receipt Deadline.” (Id., ¶18).

As for the Williams Plaintiffs:

• Plaintiff Williams is an out-of-state student at the University of Florida who is currently staying with her parents in New York “and does not know when she will be able to return to the University of Florida campus.” (Williams Complaint, ¶15);2

• Plaintiff Baez is a registered voter in Leon County whose “preference is to vote in-person on election day,” but “because of her concerns of exposure to COVID-19, she plans to vote by mail in the upcoming elections.” She “prefers to submit her ballot via curbside delivery as she is distrustful of her ballot being delivered by the U.S. Postal Service in time to be counted.” (Id., ¶16).

• Plaintiff Heller is an 86-year-old registered voter in Delray Beach who has a “history of cardiac conditions and “fears” he will be unable to vote in-person due to COVID-19, but “would vote by mail using a ballot drop box if he could navigate the vote-by-mail process, or in person using curbside voting if it were made available to him.” (Id., ¶17).

• Plaintiff Hernandez Morales is an 85-year-old voter from Seminole County, who has health issues and “does not trust the vote-by-mail system due to her past experiences with attempting to vote-by-mail in the state.” She “is not able to vote in-person this year because her health conditions and age place her in the high-risk category for COVID-19. She would be able to vote if she could access assistance, for example

2 Plaintiff Williams filed a notice of voluntary dismissal on May 27, 2020 in Case No. 4:20-cv-236 (ECF-73).


from election officials, and had a way to be sure her vote-by-mail ballot would be counted, such as an ability to track her mail ballot reliably and a meaningful opportunity to cure any problems with her ballot. She would also be able to vote if Florida offered curbside voting, which would allow her to access assistance to vote on election day and ensure her vote is counted.” (Id., ¶18).

• Plaintiff Romero is a 76-year-old voter from Orange County. Due to health issues, he “would like to vote by mail this year but cannot do so without assistance marking his vote-by-mail ballot or technology that would allow him to do so independently. He is also concerned that, because he cannot sign his name, his ballot is likely to be rejected.” (Id., ¶19).

• Plaintiff Young is a registered voter in Orange County, who is blind and “uses assistive technology available at her polling place that allows her to mark her ballot independently and privately.” “As COVID-19 outbreak has spread, Ms. Young has become even more concerned about voting at her polling place in the August and November 2020 elections and cannot do so without grave risk to her health.” She “would like to vote by mail but because she is blind, she cannot mark a paper vote-by-mail ballot without assistance from another person.” “The need for postage to request and return her mail ballot also poses an obstacle to Ms. Young.” (Id., ¶¶20-21).

Such “allegations of possible future injury are not sufficient.” Clapper, 568

U.S. at 409 (internal quotation marks and citation omitted). Plaintiffs must show

that “that their threatened injuries are ‘certainly impending.’” Jacobson, 2020 U.S.

App. LEXIS 13714, at *13 (quoting Clapper, 568 U.S. at 401). An injury-in-fact

“must be concrete in both a qualitative and temporal sense.” Reilly v. Ceridian

Corp., 664 F.3d 38, 42 (3d Cir. 2011). “The complainant must allege an injury to

himself that is ‘distinct and palpable,’ as distinguished from merely ‘abstract,’ and


the alleged harm must be actual or imminent, not ‘conjectural’ or hypothetical.’” Id.

(citing Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)); see also Bochese v. Town

of Ponce Inlet, 405 F.3d 964, 984 (11th Cir. 2005) (explaining that alleged injuries

must be based on “more than conjecture” to support Article III standing).

In this case, the individual plaintiffs’ alleged injuries are based on speculative

and generalized “concerns” or “fears” that they may not be able to vote in the manner

in which they feel most comfortable, if and when they decide to cast their ballot

months from now. These alleged injuries are not “certainly impending” or

“imminent;” they are “conjectural” and “hypothetical,” based on a prognostication

about the course a pandemic might take and the insufficiency of future responses.

In discussing concerns with mail delivery for a June 2, 2020 election, Justice Wecht

of the Pennsylvania Supreme Court summed-up the injury-in-fact concerns when he

wrote that “mere speculation about what may or may not occur with delivery

operations … in several weeks’ time” … “is too remote at this time to constitute a

cognizable injury.” Disability Rights Pa. v. Boockvar, No. 83 MM 2020, 2020 Pa.

LEXIS 2751, at *2 (Pa. May 15, 2020) (Wecht, J., concurring).

More fundamentally, voters are not injured merely because they cannot vote

using their preferred method. “Although the right to vote is fundamental, ‘[i]t does

not follow, however, that the right to vote in any manner... [is] absolute.” Gwinnett

Cty. NAACP v. Gwinnett Cty. Bd. of Registrations & Elections, No. 1:20-cv-00912-


SDG, 2020 U.S. Dist. LEXIS 36702 *14–15 (March 3, 2020) (quoting Burdick v.

Takushi, 504 U.S. 428, 433 (1992)). Indeed, Florida law allows registered voters

innumerable choices in how to cast their ballot in the August and November

elections, including but not limited to:

• Vote-by-mail: Voters can request ballots in writing, online, over the telephone, or in person to be sent to the address on file with the Florida Voter Registration System. See Fla. Stat. § 101.62. In addition:

o The voter or a member of the voter’s family can designate that the ballot be sent to an address other than the one on file with the Florida Voter Registration System. See Fla. Stat. § 101.62(1)(b).

o The voter can designate another person to pick up the vote-by-mail ballot for the voter. See Fla. Stat. § 101.62(4)(c)4.

o If there is an emergency on election day, the voter can have the Supervisor of Elections deliver the vote-by-mail ballot to the voter or a member of his or her family. See Fla. Stat. § 101.62(4)(c)5.

o Voters living in assisted living facilities and nursing homes can obtain supervised voting from the Supervisors of Elections. See Fla. Stat. § 101.655.

o Voters who require assistance because of blindness, disability, or inability to read or write may have another person of the elector’s choice (other than an employer or union official) mark the elector’s choices or otherwise assist the elector with the vote-by-mail ballot. See Fla. Stat. § 101.661.

o Upon request, the Supervisor of Elections will provide vote-by-mail ballots in alternative formats to all voters with a disability or other reason to allow all voters to cast a secret, independent, and verifiable vote-by-mail ballot without assistance. See Fla. Stat. § 101.662.


o Vote-by-mail ballots can be returned via the U.S. Postal Service or placed in an authorized secure drop box at each early voting location. See Fla. Stat. § 101.65.

• Early Voting: Voters can vote early in person at the main or branch office of the Supervisor of Elections. See Fla. Stat. § 101.657(1)(a). In addition:

o Supervisors of Elections may designate numerous other facilities for early voting sites, including any city hall, permanent public library facility, fairground, civic center, courthouse, county commission building, stadium, convention center, government-owned senior center, or government-owned community center. See Fla. Stat. § 101.657(1)(a).

o If an area of the county does not include any of the above facilities, the Supervisor can designate one early voting site in that area such that all voters in that area have an equal opportunity to cast a ballot. See Fla. Stat. § 101.657(1)(a).

o Early voting is available between 3 and 10 days before an election, and must be available between 8 and 12 hours per day. See Fla. Stat. § 101.657(1)(d).

• On Election Day: A voter may vote in person at their precinct on election day. See Fla. Stat. § 101.031-.045. In addition:

o A voter who has moved from the precinct in which he or she is registered to vote may vote after providing a sworn affirmation or by provisional ballot. See Fla. Stat. §§ 101.045 and 101.048.

o Florida Statutes provide voters with a Bill of Rights. See Fla. Stat. § 101.031.

o Voters who require assistance in person because of blindness, disability, or inability to read or write may have another person of the elector’s choice (other than an employer or union official) assist the elector with the ballot. See Fla. Stat. § 101.051.


In light of the many alternative ways that voters can timely cast their votes, none of

the individual Plaintiffs can establish an imminent injury-in-fact sufficient to confer

Article III standing in these cases.

This case also presents a traceability problem. The concerns expressed by the

individual Plaintiffs are not burdens on the right to vote imposed by the State’s

election laws, the Governor’s responsibility to take care that the laws are faithfully

executed, or the Secretary’s administration of those laws. The alleged injuries

associated with in-person voting and ballot collection stem from social-distancing

and other measures necessitated by the pandemic or other circumstances unique to

the individual Plaintiffs; neither the Governor nor the Secretary caused these

circumstances; nor is either subject to the dictates of a federal court for implementing

any necessary mitigative measures under Florida law. The alleged injuries

associated with vote-by-mail deadlines are attributable to the Plaintiffs’ generalized

“concerns” or “fears” about the U.S. Postal Service (or perhaps the county

supervisors) being unable to handle any increase in the vote-by-mail load resulting

from the pandemic; neither the Governor nor the Secretary is responsible for

resolving workload issues the U.S. Postal Service or the supervisors might face

months from now. Nor is the U.S. Postal Service’s requirement that postage be paid

for mail something for which the Governor or Secretary is responsible. As such, the

individual Plaintiffs’ claimed injuries—generalized and conjectural as they are—


cannot be traced to the Governor or Secretary. See Jacobson, 2020 U.S. App. LEXIS

13714, at *28-29 (holding that plaintiffs lacked Article III standing to sue the

Secretary “because any injury would be neither traceable to the Secretary nor

redressable by relief against her.”).

Because the individual Plaintiffs have not adequately alleged injury-in-fact

traceable to the Governor or Secretary, this Court should dismiss Counts I, II, III,

this Court should dismiss both the Nielsen Complaint and the Williams Complaint

in their entirety, at least as to the Governor and the Secretary.

B. The organizational plaintiffs’ allegations have failed to establish associational standing and standing in their own right.

To establish associational standing, an organization must prove that its

members “would otherwise have standing to sue in their own right.” Jacobson, 2020

U.S. App. LEXIS 13714, at *22 (quoting Friends of the Earth, Inc. v. Laidlaw Envtl.

Servs. (TOC), Inc., 528 U.S. 167, 181 (2000)). Plaintiff Priorities USA does not

even allege that it has members, which is fatal to any claim of associational standing.

Id. Although the other organizational Plaintiffs make reference to members, any

alleged injuries to such members are the same as those alleged by the individual

Plaintiffs and are insufficient to confer standing for the reasons discussed above.

Accordingly, there is no associational standing in Nielsen or Williams.

The organizational Plaintiffs do not have standing to sue in their own right

either. In Havens Realty Corp. v. Coleman, 455 U.S. 363, 378–79 & n.21 (1982),


the U.S. 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.

“Consistent with Havens Realty, [Eleventh Circuit] precedent holds that ‘an

organization has standing to sue on its own behalf if the defendant's illegal acts

impair its ability to engage in its projects by forcing the organization to divert

resources to counteract those illegal acts.’” Jacobson¸ 2020 U.S. App. LEXIS

13714, at *23-24 (quoting Fla. State Conference of NAACP v. Browning, 522 F.3d

1153, 1165 & n.14 (11th Cir. 2008)).

In this case, each of the organizational Plaintiffs make conclusory allegations

that the “burdens” imposed by Florida’s election code are causing them to “divert”

or “shift” resources from other sources. But conclusory allegations and formulaic

recitations are not enough. See Franklin v. Curry, 738 F.3d 1246, 1250 (11th Cir.

2013) (citation omitted). None of the organizational Plaintiffs allege how or why

they are diverting resources from other sources to counteract any “illegal acts” of

the Governor or the Secretary as opposed to ongoing impacts of the COVID-19

pandemic. Nor do any of the organizational Plaintiffs explain how their activities

will differ from those they would ordinarily undertake to fulfill their missions.

Shelby Advocates for Valid Elections v. Hargett, 947 F.3d 977, 982 (6th Cir. 2020);

NAACP v. City of Kyle, Tex., 626 F.3d 233, 238–39 (5th Cir. 2010). For each of the


organizational Plaintiffs, the activities from which resources allegedly will be

diverted (voter education and registration) appear to be identical to the activities to

which resources will be diverted (voter education and registration). Since voter

education and registration is the mission of the organizational Plaintiffs, there is no

diversion of resources from that mission. See Shelby Advocates, 947 F.3d at 982.

Accordingly, the organizational Plaintiffs have not sufficiently alleged

associational standing or standing to sue in their own right.

C. Plaintiffs’ VRA, ADA, and Rehabilitation Act claims do not allege injuries that are redressable by relief against the State Defendants.

As the Eleventh Circuit recently reiterated, “[t]o satisfy the causation

requirement of standing, a plaintiff’s injury must be ‘fairly traceable to the

challenged action of the defendant[.]’” Jacobson, 2020 U.S. App. LEXIS 13714, at

*29 (citing Lujan, 504 U.S. at 460); see also Lewis v. Governor of Ala., 944 F.3d

1287, 1299 (11th Cir. 2019) (en banc decision holding that plaintiffs’ lacked

standing to sue state attorney general who did not have authority to enforce the

statute in question). Here, the Plaintiffs cannot establish that the injuries asserted in

their claims seeking to require accommodations under the ADA, Rehabilitation Act,

and VRA are traceable to the Governor or the Secretary, or would be redressable by

relief against either.

With respect to the ADA and Rehabilitation Act claims, the Williams

Plaintiffs make no specific allegations directed at the Governor or Secretary. It


seems the allegations take issue with a lack of accommodations in county-specific,

and voter-specific circumstances. E.g., Williams Complaint, at p.79, ¶d. Without

more, this is not enough for standing (or an adequate pleading).

Although the Secretary has certain responsibilities for making voting

materials available in Spanish under section 203 of the VRA, she already provides

all such material in Spanish and, therefore, could not provide any additional relief

that would redress the alleged injuries underlying the VRA claim.3 Any in-person

voter assistance in Spanish would traditionally be the responsibility of the local

officials. Again, there are no specific allegations on this issue directed at the

Governor or Secretary.

The same holds true for the Nielsen Plaintiffs’ section 208 claim under the

VRA—the provision and receipt of vote-by-mail ballots lies with the Supervisors,

not the Governor or the Secretary. See, e.g., Fla. Stat. §§ 101.62, 101.64, 101.65,

101.655, 101.67. Neither the Governor nor the Secretary has a direct role for the

administration or enforcement of section 104.0616, Florida Statutes, which the

Nielsen Plaintiffs challenge in Count V of their Complaint.

3 The Court can take judicial notice that the Secretary makes “Spanish assistance … available through the statewide voter assistance and voter hotlines.” Additionally, “[i]nformation is available on the Division of Elections’ website. Statewide-issued or-produced materials are translated. They include the voter registration application and the Florida Voter Registration and Voting Guide (ENG/SPA).” https://dos.myflorida.com/elections/for-voters/voting/language-assistance-for-voting/


https://www.dos.myflorida.com/elections/contacts/contact-us/

https://www.dos.myflorida.com/elections/for-voters/voter-registration/register-to-vote-or-update-your-information/

https://www.dos.myflorida.com/elections/for-voters/voter-registration/register-to-vote-or-update-your-information/

https://www.dos.myflorida.com/media/699606/2018-voterregguide-1-18-2019.pdf

https://www.dos.myflorida.com/media/699607/voter-registration-guide-spanish.pdf

https://dos.myflorida.com/elections/for-voters/voting/language-assistance-for-voting/

https://dos.myflorida.com/elections/for-voters/voting/language-assistance-for-voting/

Because the Plaintiffs cannot establish that any injury underlying their ADA,

Rehabilitation Act, or VRA claims is fairly traceable to the Governor or the

Secretary or redressable by relief against either, Counts II, III, IV, and V of the

Williams Complaint and Count V of the Nielsen Complaint must be dismissed, at

least as to the Governor and the Secretary.

III. PLAINTIFFS FAIL TO STATE A CLAIM THAT FLORIDA’S VOTE-BY-MAIL STATUTES ARE UNCONSTITUTIONAL.

“Our Constitution accords special protection for the fundamental right of

voting, … recognizing its essential role in the ‘preservati[on] of all rights.’” Ne.

Ohio Coal. v. Husted, 696 F.3d 580, 591(6th Cir. 2012) (internal citations omitted).

“At the same time, the Constitution vests states with the authority to prescribe ‘[t]he

Times, Places and Manner of holding Elections for Senators and Representatives.’”

Id. at 592 (citing U.S. Const. Art. I, § 4, cl. 1). “The right to vote is unquestionably

basic to a democracy, but the right to a[] [vote-by-mail] ballot is not.” Prigmore v.

Renfro, 356 F. Supp. 427, 432 (N.D. Ala. 1972), aff'd 410 U.S. 919 (1973). Vote-

by-mail is a “privilege [provided] as a matter of convenience, not of right.” Id. See

also, Burdick, 504 U.S. at 433 (“[T]he right to vote in any manner and the right to

associate for political purposes through the ballot are not absolute.”).

The Anderson-Burdick standard ordinarily governs when parties raise

comingled, election-related claims under the First and Fourteenth Amendments,

such as Count I of the Nielsen Complaint and Count I of the Williams Complaint.


This standard seeks to balance the burdens that election laws impose on the right to

vote with the justification for those burdens. See Anderson v. Celebrezze, 460 U.S.

780, 789 (1983); Burdick, 504 U.S. at 433. “A court considering a challenge to a

state election law must weigh ‘the character and magnitude of the asserted injury to

the rights protected by the First and Fourteenth Amendments that the plaintiff seeks

to vindicate’ against ‘the precise interest put forward by the State as justifications

for the burden imposed by its rule,’ taking into consideration ‘the extent to which

those interests make it necessary to burden the plaintiff’s rights.’” Burdick, 504 U.S.

at 434 (1992) (citing Anderson, 460 U.S. at 789). “[W]hen a state election law

provision imposes only ‘reasonable, nondiscriminatory restrictions’ upon the First

and Fourteenth Amendment rights of voters, ‘the State's important regulatory

interests are generally sufficient to justify the restrictions.’” Burdick, 504 U.S. at

434 (quoting Anderson, 460 U.S. at 788).

The Plaintiffs can prove no set of facts that would support their claims that

the Florida’s vote-by-mail laws fail the Anderson-Burdick test. Their claims seeking

pre-paid postage do not even allege any burden imposed by the State. The State

allows for vote-by-mail as a matter of convenience. The State does not impose postal

charges for that convenience—the U.S. Postal Service does. Likewise, the limit on

the number of ballots any compensated individual can collect and deliver is not a

burden on anyone’s right to vote; much like vote-by-mail, ballot collection is a


convenience, not a right.4 See Jacobson, 2020 U.S. App. LEXIS 13714, at *16

(“Instead, they have an interest in their ability to vote and their vote being given the

same weight as any other.”). As a matter of law, there can be no undue-burden or

vote-denial claim for prepaid postage or unlimited vote collection and delivery

because there is no “burden” to weigh under Anderson-Burdick.

Although the vote-by-mail deadline does impose a burden, albeit a small one,

two district courts in Florida—including this Court—have rejected challenges to the

same statutes under Anderson-Burdick. In VoteVets Action Fund v. Detzner, No.

4:18-cv-00524-MW-CAS (N.D. Fla. Nov. 16, 2018) (ECF-56), this Court concluded

that the very same injury alleged in this case—“Namely, the vote-by-mail voter’s

ballot may not be counted due to the vagaries of the mail system”—“is outweighed

by the state’s important regulatory interest.” Id. at 6. This Court explained that

“[t]he fact that there might be problems with the mail does not outweigh the state’s

important interest in delineating finality in elections.” Id.

Similarly, the U.S. District Court for the Southern District of Florida rejected

an Anderson-Burdick challenge of Florida’s vote-by-mail deadline in Friedman v.

Snipes, 345 F. Supp. 2d 1356 (S.D. Fla. 2004). There, the district court recognized

that “Florida’s 7 p.m. deadline of returning ballots on election day does not

4 The limit on the number of ballots any individual can collect and deliver clearly serves the State’s interest in preventing voter fraud, but the Court need not address that issue because there is no “burden” to weigh against the State’s interests.


disenfranchise a class of voters.” Id. at 1377. “Plaintiffs are still able to cast a ballot,

however, they must either return their [vote-by-mail] ballots in sufficient time so

that the votes are received by the 7 p.m. deadline or they must vote in person.” Id.

Ultimately, the court found “that the State's interests in ensuring a fair and honest

election and to count votes within a reasonable time justifies the light imposition on

Plaintiffs’ right to vote.” Id.

Plaintiffs can prove no set of facts that could lead this Court to differ with the

conclusions in VoteVets and Freidman. While some of the Plaintiffs allege that their

health, physical location or “demanding schedule” might inhibit their ability to

obtain postage or submit a timely vote-by-mail ballot, when courts “grapple with the

magnitude of burdens, [they do] so categorically and [do] not consider the peculiar

circumstances of individual voters or candidates.” Crawford, 553 U.S. at 206

(Scalia, J., concurring). As the Nielsen Plaintiffs admit, “Florida commendably

allows widespread voting by mail[,]” Nielsen Complaint¸ at ¶ 2; and Florida voters

have many choices to cast their ballots in-person or to have their vote-by-mail ballot

delivered by other means, including printing out postage from home and scheduling

pickup by the U.S. Postal Service5 or asking a family member or neighbor to apply

postage to or deliver their vote-by-mail ballot.

5 See https://www.usps.com/ship/ (“Want to save time and ship from home? Use Click-N-Ship® to pay for postage and print a shipping label from your printer. Plus, you can schedule a USPS® pickup from your home or office.”).


https://www.usps.com/ship/

The Nielsen Plaintiffs’ stand-alone Fourteenth Amendment challenge of the

vote-by-mail deadline also fails on its face. In Count II of their Complaint, the

Nielsen Plaintiffs allege that Florida’s vote-by-mail deadline violates due process

because “Florida’s existing procedures for counting vote-by-mail ballots too often

deprive voters of having their ballot counted because (1) many voters do not learn

of the Election Day Receipt Deadline before Election Day, and (2) even voters who

do learn of the Election Day Receipt Deadline may not have their ballots counted if

those ballots do not arrive in the mail at the county Supervisor’s office, through no

fault of their own, by 7 p.m. on Election Day.” Nielsen Complaint¸ at p.64, ¶94. But

this conclusory allegation of “surprise” and “unfairness” is belied by a requirement

in Florida law that ensures that voters know of the vote-by-mail deadline when they

receive a vote-by-mail ballot. Section 101.65, Florida Statutes, provides:

Instructions to absent electors.—The supervisor shall enclose with each vote-by-mail ballot separate printed instructions in substantially the following form:

READ THESE INSTRUCTIONS CAREFULLY BEFORE MARKING BALLOT.

1. VERY IMPORTANT. In order to ensure that your vote-by-mail ballot will be counted, it should be completed and returned as soon as possible so that it can reach the supervisor of elections of the county in which your precinct is located no later than 7 p.m. on the day of the election.


Fla. Stat. § 101.65. As Florida’s Fourth District Court of Appeal recognized when

it rejected an election contest involving vote-by-mail ballots received after the

statutory deadline:

It is the voter who must get the returned ballot into the supervisor's hands before polls close, not the USPS. The ballot explicitly warns voters of that requirement. The very statutory warning itself makes clear the Legislature understood the vagaries of third party delivery yet made the voter responsible to get the ballot to the polls on time. Just as the voter who votes in person must show up at the polls on time.

Goldsmith v. McDonald, 32 So. 3d 713, 715 (Fla. 4th DCA 2010). Stated differently,

there is no fairness issue because those who choose to vote by mail are treated no

differently than those who choose to vote on Election Day. Cf., Browning, 522 F.3d

at 1183 (“When an election process ‘reache[s] the point of patent and fundamental

unfairness,’ there is a due process violation.”) (quoting Roe v. Alabama, 43 F.3d

574, 580 (11th Cir. 1995)) (emphasis added). Accordingly, the Nielsen Plaintiff’s

Fourteenth Amendment claim fails as a matter of law.

The Nielsen Plaintiffs’ stand-alone First Amendment challenge of the

limitation on paid-for ballot collection and delivery in Count IV of their Complaint

fairs no better. Federal courts have repeatedly rejected the notion that collection or

delivery of election materials constitutes “speech” for purposes of the First

Amendment. See Knox v. Brnovich, 907 F.3d 1167 (9th Cir. 2018) (“Although voted

early ballots constitute the voter’s speech, [a ballot collector] “does not ‘speak’ in

this context by handling another person’s ‘speech.’”); Voting for Am., Inc. v. Steen,


732 F.3d 382 (5th Cir. 2013) (Third party’s collection and delivery of a voter’s

registration application does not constitute the third party's speech for First

Amendment purposes). Furthermore, “[i]t is well established in [the Eleventh]

Circuit that the First Amendment provides no greater protection for voting rights

than is otherwise found in the Fourteenth Amendment.” Hand v. Scott, 888 F.3d

1206, 1211 (11th Cir. 2018). Thus, where a plaintiff fails to establish a claim of

invidious or intentional discrimination under the Equal Protection Clause, “without

more, [the plaintiff] cannot establish a First Amendment violation based on

viewpoint discrimination.” Id. at 1212. The Nielsen Plaintiffs do not allege and

cannot establish that the limitation on paid-for ballot collection and delivery in

section 104.0616, Florida Statutes, was “facially or intentionally designed to

discriminate based on viewpoint.” Id. Accordingly, the Nielsen Plaintiffs’ stand-

alone First Amendment challenge fails as a matter of law.

For these reasons, the Court should dismiss Plaintiffs’ constitutional claims

seeking to require prepaid postage for vote-by-mail ballots and seeking to challenge

Florida’s vote-by-mail deadline and limitation on paid-for ballot collection and

delivery (Counts I, II and IV of the Nielsen Complaint and Count I of the Williams

Complaint).


IV. THE PLAINTIFFS’ TWENTY-FOURTH AMENDMENT CLAIM FAILS AS A MATTER OF LAW BECAUSE POSTAGE IS A FEE IMPOSED BY THE U.S. POSTAL SERVICE, NOT A TAX IMPOSED BY THE STATE OF FLORIDA.

The Twenty-Fourth Amendment prohibits a state from denying the right of

citizen to vote in a federal election “by reason of failure to pay any poll tax or other

tax.” U.S. Const. amend. XXIV. “‘Poll tax’ is defined as ‘a fixed tax levied on each

person within a jurisdiction.’” Coronado v. Napolitano, 2008 WL 191987, No. CV-

07-1089-PHX-SMM, 2008 WL 191987, at *5 (D. Ariz. Jan. 22, 2008) (citing

Black’s Law Dictionary 1498 (8th ed. 2004)). The Nielsen Plaintiffs’ claim that

“Florida’s Vote-by-Mail Postage Requirement” violates the Twenty-Fourth

Amendment fails as a matter of law because postage is not a “tax” imposed by the

State of Florida—indeed, it is not imposed or required by the State of Florida at all.

Rather, postage is a service charge collected by the U.S. Postal Service when a voter

elects to use of the mail system to deliver his or her ballot.

The Plaintiffs would have this Court become the first in the nation to hold that

the purchase of postage is a poll tax under the Twenty-Fourth Amendment. The few

courts to consider the issue have rejected the same arguments the Plaintiffs raise here

and have held that postage is an indirect cost associated with voting that does not

deprive the voter of the right to vote. See League of Women Voters of Ohio v.

LaRose, No. 2:20-cv-01638-MHW-EPD, slip op. at 25 (S.D. Ohio Apr. 3, 2020)

(Doc. #57) (Ohio Secretary of State did not impose a poll tax by failing to provide


postage pre-paid envelopes for voters to return mail-in ballots.); Bruce v. City of

Colo. Springs, 971 P.2d 679, 685 (Colo. App. 1998) (“[E]ven if a voter was

prevented from exercising his or her right to vote because of the lack of a stamp,

such action does not constitute an unconstitutional poll tax in the absence of a willful

intent to deprive the voter of the right by imposing such requirement.”). This makes

sense: a stamp is no different (and likely cheaper) than the cost of gasoline, ride-

share fare, public transportation, uber/taxi fare, or most other means of getting to the

polls in-person to cast a ballot.

Other courts have similarly held that other indirect or tangential costs of

voting do not constitute “poll taxes.” See Veasey v. Abbott, 796 F.3d 487, 268 (5th

Cir. 2015) (holding that “indirect costs on voters” having to obtain the required

identification “does not constitute a poll tax” because it does not “impose a material

requirement solely upon those who refused to pay a poll tax”); Gonzalez v. Arizona,

677 F.3d 383, 407 (9th Cir. 2012) (“Although obtaining the identification required

under [state law] may have a cost, it is neither a poll tax itself (that is, it is not a fee

imposed on voters as a prerequisite for voting), nor is it a burden imposed on voters

who refuse to pay a poll tax.”); Common Cause/Georgia v. Billups, 439 F. Supp. 2d

1294, 1335 (N.D. Ga. 2006) (denying preliminary injunction against state Voter ID

law because the costs associated with obtaining an ID did not constitute an

unconstitutional poll tax); Ind. Democratic Party v. Rokita, 458 F. Supp. 2d 775, 827


(S.D. Ind. 2006) (“[T]he cost of time and transportation [associated with photo-ID

requirement] cannot plausibly qualify as a prohibited poll tax because these same

‘costs’ also result from voter registration and in-person voting requirements, which

one would not reasonably construe as a poll tax.”).

The Plaintiffs also would have this Court ignore federal precedent that draws

a distinction between taxes and service charges like those imposed by the U.S. Postal

Service. The Supreme Court has said the “standard definition of a tax” is an

“enforced contribution to provide for the support of the government.” United States

v. State Tax Comm’n, 421 U.S. 599, 606 (1975) (quoting United States v. La Franca,

282 U.S. 568, 572 (1931)); see also New Jersey v. Anderson, 203 U.S. 483, 492

(1906) (“[A] tax is a pecuniary burden laid upon individuals or property for the

purpose of supporting the government.”). “Under federal law, a tax has certain

characteristics which distinguish it from a mere debt or charge.” In re Adams, 40

B.R. 545, 548 (E.D. Pa. 1984). “The major distinction lies in whether it is an

involuntary charge assessed on all or a charge for services rendered in the nature of

a contractual or quasi-contractual obligation.” Id. As the Supreme Court explained

long ago in New Jersey v. Anderson:

Taxes are not debts . . . . Debts are obligations for the payment of money founded upon contract, express or implied. Taxes are imposts levied for the support of the Government, or for some special purpose authorized by it. The consent of the taxpayer is not necessary to their enforcement. They operate in invitum. Nor is their nature affected by the fact that in


some States . . . . an action of debt may be instituted for their recovery. The form of the procedure cannot change their character.

New Jersey v. Anderson, 203 U.S. at 492 (first and third emphasis added).

In In re Lorber Industries of California, Inc., 675 F.2d 1062, 1067 (9th Cir.

1982), the Ninth Circuit held that sewer use charges were not taxes because they

were triggered by an individual’s decision to use the sewage system and the amount

of the charge was proportionate to the individual’s use. The Lorber Court explained:

In determining if Lorber’s use of the system was voluntary, and if it therefore consented to imposition of the fees, we are not free to consider the practical and economic factors which constrained Lorber to make the choices it did. The focus is not upon Lorber's motivation, but on the inherent characteristics of the charges.

Id. at 1066. “Put another way, the fact that Lorber probably had nowhere else to

turn for sewerage services did not transform the charges into involuntary pecuniary

burdens, and hence taxes.” In re Adams, 40 B.R. at 458.

Like the sewer fees in Lorber, postage is a charge for services rendered, rather

than an involuntary pecuniary burden in the nature of a tax. The requirement to pay

postage is triggered when an individual decides to take advantage of the postal

system. Under federal law, the system for regulating postal rates established by the

Postal Regulatory Commission includes:

the requirement that each class of mail or type of mail service bear the direct and indirect postal costs attributable to each class or type of mail service through reliably identified causal relationships plus that portion of all other costs of the Postal Service reasonably assignable to such class or type.


39 U.S.C. § 3622(c)(2).6 Thus, postal charges are not taxes because they are

consensual rather than involuntary; and they are proportionate to the use of the mail

system. For the reasons discussed in Lorber, it is not relevant that voters may think

they have no other choice in postal services, because voters chose to vote-by-mail

and, in reality, many other choices exist for voters to cast their ballots in-person or

to have their vote-by-mail ballot delivered by other means. “[T]he peculiar

circumstances of individual voters” are not relevant for purposes of the Plaintiffs’

facial constitutional claims. Crawford, 553 U.S. at 206 (Scalia, J., concurring).

The Nielsen Plaintiff’s Twenty-Fourth Amendment claim (Count III) fails as

a matter of law because postage is not a “poll tax” or “other tax” imposed by the

State of Florida; it is not an “enforced contribution to provide for the support of the

government,” State Tax Comm’n, 421 U.S. at 606, but, rather, a service charge

collected by the U.S. Postal Service for use of the mail system.

REQUEST FOR RELIEF

For all of the reasons discussed above, Governor DeSantis and Secretary of

State Lee respectfully move this Court to dismiss the Complaints filed by the Nielsen

6 See also 39 U.S.C. § 101(d) (“Postal rates shall be established to apportion the costs of all postal operations to all users of the mail on a fair and equitable basis.”); id. at § 404(b) (authorizing the Postal Service to “establish reasonable and equitable classes of mail and reasonable and equitable rates of postage and fees for postal services”).


and Williams Plaintiffs as to the Governor and the Secretary. Specifically, the Court

should dismiss the constitutional claims in Counts I, II, and IV of the Nielsen

Complaint and Count I of the Williams Complaint because they raise political

questions that are beyond this Court’s jurisdiction (Section I, supra) and because

they fail to state claims for relief as a matter of law (Section III, supra). The Court

should dismiss all of the counts in both Complaints for lack of Article III standing,

at least as to the Governor and Secretary, because the Plaintiffs do not allege

cognizable injuries-in-fact that are traceable to either the Governor or the Secretary

(Section II, supra). The Court should dismiss the Twenty-Fourth Amendment claim

in Count III of the Nielsen Complaint because postage is not a “poll tax” or “other

tax” imposed by the State; it is a service charge imposed by the U.S. Postal Service.


Respectfully submitted by:

JOSEPH W. JACQUOT (FBN 189715) General Counsel [email protected] NICHOLAS A. PRIMROSE (FBN 104804) Deputy General Counsel [email protected] JOSHUA E. PRATT (FBN 119346) Assistant General Counsel [email protected] Executive Office of the Governor 400 S. Monroe St., PL-5 Tallahassee, FL 32399 Telephone: (850) 717-9310 Fax: (850) 488-9810 Counsel for Governor Ron DeSantis GEORGE N. MEROS, JR. (FBN 263321) [email protected] TARA R. PRICE (FBN 98073) [email protected] Holland & Knight LLP 315 South Calhoun Street, Suite 600 Tallahassee, Florida 32301 Telephone: (850) 224-7000 Facsimile: (850) 224-8832

BRADLEY R. MCVAY (FBN 79034) General Counsel [email protected] ASHLEY E. DAVIS (FBN 48032) Deputy General Counsel [email protected] Florida Department Of State R.A. Gray Building Suite, 100 500 South Bronough Street Tallahassee, Florida 32399-0250 Phone: (850) 245-6536 Fax: (850) 245-6127 /s/ Mohammad O. Jazil MOHAMMAD O. JAZIL (FBN 72556) [email protected] GARY V. PERKO (FBN 855898) [email protected] EDWARD M. WENGER (FBN 85568) [email protected] Hopping Green & Sams, P.A. 119 South Monroe Street, Suite 300 Tallahassee, Florida 32301 Phone: (850) 222-7500 Fax: (850) 224-8551 Counsel for Florida Secretary of State Laurel M. Lee


37

CERTIFICATE OF COMPLIANCE WITH LOCAL RULES

I certify that the foregoing complies with the size, font, and formatting

requirements of the local rules. At 9,097 words the foregoing exceeds the word limit

provided in the local rules; however, an unopposed motion to exceed word limit has

been filed contemporaneously with the foregoing.

/s/ Mohammad O. Jazil Attorney

CERTIFICATE OF SERVICE

I certify that a true and correct copy of the foregoing was served to all

counsel of record through the Court’s CM/ECF system on May 27, 2020.

/s/ Mohammad O. Jazil Attorney


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