Bellitto v. Snipes

935 F.3d 1192

Andrea BELLITTO, Plaintiff,

American Civil Rights Union, Plaintiff - Appellant,

v.Brenda SNIPES, in her official capacity as the Supervisor of Elections of Broward County, Florida, Defendant - Appellee,1199SEIU United Healthcare Workers East, Intervenor Defendant - Appellee.

No. 18-11808

United States Court of Appeals, Eleventh Circuit.

August 22, 2019

John C. Eastman, Center for Constitutional Jurisprudence, Chapman Univ. School of Law, ORANGE, CA, J. Christian Adams, H. Christopher Coates, Kaylan Lytle Phillips, Public Interest Legal Foundation, INDIANAPOLIS, IN, William E. Davis, Attorney, Mathew Daniel Gutierrez, Foley & Lardner, LLP, William Earl Davis, Cozen O'Connor, MIAMI, FL, Kenneth Alan Klukowski, First Liberty Institute, PLANO, TX, for Plaintiff - Appellant.

Joseph Jarone, Rene Harrod, Broward County Attorney's Office, Burnadette Norris-Weeks, Burnadette Norris Weeks, PA, FORT LAUDERDALE, FL, Kathleen M. Phillips, Phillips Richard & Rind, PA, MIAMI, FL, for Defendant - Appellee BRENDA SNIPES.

Jessica Ring Amunson, Kali Nneka Bracey, Tassity S. Johnson, Jenner & Block, LLP, Chiraag Bains, Demos, Trisha Pande, Service Employees International Union, WASHINGTON, DC, Stuart C. Naifeh, Demos, David Slutsky, Levy Ratner, PC, NEW YORK, NY, Kathleen M. Phillips, Lucia Piva, Phillips Richard & Rind, PA, Katherine Roberson-Young, MIAMI, FL, for Defendant - Appellee 1199SEIU UNITED HEALTHCARE WORKERS EAST.

Before MARCUS, GRANT and HULL, Circuit Judges.

MARCUS, Circuit Judge:

The National Voter Registration Act requires state election officials to make a reasonable effort to remove certain ineligible registrants from the voter rolls. The American Civil Rights Union ("ACRU") claims that Brenda Snipes, the former Broward County Supervisor of Elections, failed to satisfy her list-maintenance obligations. The district court, after a bench trial, concluded that the National Voter Registration Act ("NVRA") requires a reasonable effort to remove only those voters who become ineligible because of death or change of address and that Snipes reasonably conducted a program to do just that. ACRU appeals from those determinations.

This appeal requires us to answer three related legal questions. First, is the NVRA’s list-maintenance mandate confined to removing voters who become ineligible because they moved or died, or does the mandate extend to other bases of ineligibility as well, such as mental incapacity or criminal conviction? Second, does anything in the Help America Vote Act ("HAVA") broaden the NVRA’s list-maintenance obligations? And finally, does the National Change of Address procedure outlined in the NVRA create a safe harbor for reasonable list maintenance regarding voters who have moved? As for the first question, the statute could not be clearer: the states and their subsidiaries are required to conduct a general program of list maintenance that makes a reasonable effort to remove voters who become ineligible on account of death or change of residence, and only on those two accounts. And nothing found in HAVA -- the latest congressional codification addressing voter registration -- changes what is required by the NVRA; indeed, HAVA repeatedly references compliance with the NVRA’s list-maintenance mandates. Finally, the NVRA sets forth an explicit safe-harbor procedure by which the states may fulfill their list-maintenance obligations as to voters who move.

Moreover, after thoroughly reviewing this record and having taken oral argument, we can discern no clear error in the district court’s factual findings. As the trial court found, Snipes employed the statute’s safe-harbor provision when she examined who may have changed his or her address in Broward County, and she also utilized reliable death records from the Florida Department of Health and the Social Security administration to identify and regularly remove deceased voters. The NVRA requires a reasonable effort to remove only those voters who become ineligible because of death or change of address. Based on the record developed in the five-day bench trial, the district court did not clearly err in finding that Broward’s Election Supervisor conducted a program reasonably designed to accomplish these tasks. Accordingly, we affirm the judgment of the district court.

I.

The essential facts adduced at trial and the procedural history are these. American Civil Rights Union, Inc. ("ACRU") is a nonprofit corporation that works on election-integrity issues. From November 1, 2003, through the adjudication of this suit in district court and until the end of 2018, Brenda Snipes ("Snipes") was the Supervisor of Elections for Broward County, Florida, and oversaw the Broward County Supervisor of Elections Office ("BCSEO"). Although the NVRA centralizes coordinating responsibility in the state and a state-designated chief elections officer -- in Florida, the Secretary of State -- Florida law delegates primary authority for voter registration list maintenance to the county-level supervisors of elections. See 52 U.S.C. § 20509 ("Each State shall designate a State officer or employee as the chief State election official to be responsible for coordination of State responsibilities under this chapter."); Fla. Stat. § 98.015 (mandating that "[t]he supervisor of elections ... shall update voter registration information, enter new voter registrations into the statewide voter registration system, and act as the official custodian of documents received by the supervisor related to the registration of electors and changes in voter registration status of electors of the supervisor’s county" and requiring that "[e]ach supervisor shall ensure that all voter registration and list maintenance procedures conducted by such supervisor are in compliance with any applicable requirements ... prescribed by ... the National Voter Registration Act of 1993").¹

On January 26, 2016, Susan Carleson, the President of ACRU, sent Snipes a statutory notice letter pursuant to 52 U.S.C. § 20510(b), which affords the state an opportunity to correct any violation prior to the commencement of a private action under the National Voter Registration Act, Pub. L. No. 103-31, 107 Stat. 77 (codified as amended at 52 U.S.C. §§ 20501 - 20511 (2012) ). The letter claimed that Broward County was "in apparent violation" of Section 8 of the NVRA, which requires the states regularly to conduct maintenance on its voter registration lists, removing certain ineligible voters. ACRU explained that it had compared registration totals to population data and concluded that Broward County had an "implausible" registration rate, yielding the strong inference that the County had inadequately maintained its voting lists. Snipes responded that Florida maintains a statewide voter registration database and that the state issues statewide guidelines and procedures for list maintenance, and referred ACRU to sections 98.045 and 98.065 of the Florida Statutes. Snipes asserted that contrary to ACRU’s suggestion, Broward’s registration rate had never exceeded 100% of residents during her tenure, and attached list-maintenance compliance certifications filed biannually with the Florida Department of State.

On June 27, 2016, ACRU sued Broward County Supervisor Snipes in the United States District Court for the Southern District of Florida.² Count I of the Amended Complaint alleged that Snipes "failed to make reasonable efforts to conduct voter list maintenance programs, in violation of Section 8 of NVRA, 52 U.S.C. § 20507 and 52 U.S.C. § 21083(a)(2)(A) [a provision of the Help America Vote Act]." And Count II claimed that Snipes had "failed to respond adequately to Plaintiffs’ written request for data, failed to produce or otherwise failed to make records available to Plaintiffs concerning Defendant’s implementation of programs and activities for ensuring the accuracy and currency of official lists of eligible voters for Broward County, in violation of Section 8 of the NVRA, 52 U.S.C. § 20507(i)." On September 19, 2016, 1199SEIU United Healthcare Workers East ("1199SEIU"), a labor union, moved to intervene in the lawsuit pursuant to Rule 24 of the Federal Rules of Civil Procedure "to protect the interests of itself and its members and ensure that no voter, including its members, in Broward County has his or her registration improperly or illegally canceled as a result of the Plaintiffs’ request for court-ordered voter ‘list maintenance.’ " The district court granted the motion to intervene.

After completion of discovery, the parties cross-moved for summary judgment on Count II. The district court initially denied those motions, but later dismissed Count II sua sponte. The court concluded that it was without jurisdiction to adjudicate that claim because the American Civil Rights Union had failed to provide adequate statutory notice pursuant to § 20510(b). ACRU has not appealed from the entry of final summary judgment on Count II. The district court denied summary judgment on Count I, concluding that whether Snipes actually conducted an adequate general program of list maintenance to remove voters who had moved or died was a fact-intensive question, more appropriately resolved after a full airing at trial, particularly in light of ACRU’s evidence of "very high voter registration rates" in Broward County.

The district court conducted a bench trial, taking extensive testimony about registration rates, list-maintenance tools employed by the BCSEO, other tools that might be used to identify ineligible voters, and citizen complaints made to the BCSEO. Most relevant for our purposes, dueling experts testified in considerable detail regarding the registration rates in Broward County. ACRU called Scott Gessler, the former Colorado Secretary of State, to testify about voter list maintenance tools and offer his expert opinion about what constitutes a reasonable effort. BCSEO employees -- Director of Voter Services Mary Hall, IT Director Jorge Nunez,...