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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

)

INDEPENDENT PARTY OF )

FLORIDA and PARTY FOR )

SOCIALISM AND LIBERATION, )

)

Plaintiffs, )

)

v. ) Case No. 4:20-cv-00110-MW-CAS

)

LAUREL M. LEE, Florida )

Secretary of State, in her official )

capacity, )

)

Defendant. )

)

PLAINTIFF’S BRIEF IN RESPONSE TO THE COURT’S

ORDER OF APRIL 30, 2020

COME NOW The Independent Party of Florida (“Independent 

Party”) and The Party for Socialism and Liberation (“Party for 

Socialism”) (collectively the “Plaintiffs”), by and through their attorney 

of record, Daniel J. Treuden, and respectfully file this brief in response 

to the Court’s sua sponte Order directing briefing on Jacobson v. Florida 

Sec. of State, F.3d , 2020 U.S. App. LEXIS 13714 (11th Cir. 

April 29, 2020) (published). (DE 21.)

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ARGUMENT

Jacobson is an election law case involving the constitutionality of 

the Florida statute setting forth the order in which candidate names

appear on general election ballots. On appeal, the Eleventh Circuit 

Court of Appeals vacated the district court’s judgment and remanded 

the case with instructions to dismiss the case for lack of jurisdiction, 

specifically for a lack of standing. Jacobson, 2020 U.S. App. LEXIS 

13714, *44. This brief “addresse[s] the issue whether, in light of 

Jacobson, [the Plaintiffs] have standing. Plaintiffs’ brief must 

specifically address the issue of whether their injury is traceable and 

redressable by the Defendant.” (DE 21.)

The Plaintiffs do have standing and the injuries complained of are, 

in fact, traceable directly to the Secretary of State Laurel M. Lee (“Lee”) 

and are redressable by her.

The Plaintiffs allege that two statutes violate the Plaintiffs’ 

constitutional rights and claim injuries arising from those violations.

First, the Plaintiffs allege that forcing them to affiliate with a nonFlorida “national” party in order to qualify for ballot access by 

certification in the Presidential general election race pursuant to Fla. 

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Stat. § 103.021(4)(a) violates the Constitution and the Plaintiffs’ 

constitutional rights; and second, that the alternative method of ballot 

access set forth in Fla Stat. § 103.021(4)(b) – submitting signatures of 

Florida registered voters equal to one-percent of the registered voters in 

the state – is also a violation of the Constitution and the Plaintiffs’ 

constitutional rights.

National Party Affiliation

The statute governing minor political party ballot access by 

certification reads as follows:

A minor political party that is affiliated with a national 

party holding a national convention to nominate candidates 

for President and Vice President of the United States may 

have the names of its candidates for President and Vice 

President of the United States printed on the general 

election ballot by filing with the Department of State a 

certificate naming the candidates for President and Vice 

President and listing the required number of persons to 

serve as electors. Notification to the Department of State 

under this subsection shall be made by September 1 of the 

year in which the election is held. When the Department of 

State has been so notified, it shall order the names of the 

candidates nominated by the minor political party to be 

included on the ballot and shall permit the required number 

of persons to be certified as electors in the same manner as 

other party candidates. As used in this section, the term 

“national party” means a political party that is registered 

with and recognized as a qualified national committee of a 

political party by the Federal Election Commission.

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Fla. Stat. § 103.021(4)(a).

First, each of the Plaintiffs in this case constitute minor political 

parties: “‘Minor political party’ is any group as specified in s. 103.095 

which on January 1 preceding a primary election does not have 

registered as members 5 percent of the total registered voters of the 

state.” Fla. Stat. § 97.021(19). It is undisputed that both Plaintiffs are 

groups specified in Fla. Stat. § 103.095 and as of January 1, 2020 did 

not have registered members totaling five percent of the registered 

voters of the state.

Second, Lee, as the Secretary of State, is the public officer that 

heads the Department of State: “There is created a Department of 

State. (1) The head of the Department of State is the Secretary of State. 

. . .” Fla. Stat. § 20.10. Furthermore, Lee is in charge of the Division of 

Elections: “The following divisions of the Department of State are 

established: (a) Division of Elections . . . .” Fla. Stat. § 20.10(2). As the 

head of the Department of State, the Secretary of State can require the 

Department of State to comply with any injunction placed upon her.

Furthermore, the Department of State has exercised authority 

within the context of this statute, as evidenced by Exhibits A and B 

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filed in support of the Plaintiffs’ Motion for Preliminary Injunction. (DE 

9-2 and 9-3.) Both exhibits are letters written by Department of State 

employees interpreting Fla. Stat. § 103.021(4)(a) and explaining how 

the Department of State will enforce its requirements. Exhibit A is a 

letter signed by Daniel E. Nordby, General Counsel under Lee’s 

predecessor Kurt S. Browning. The letter advised counsel for the 

Americans Elect Party that if the Americans Elect Party submits a 

certificate under section 103.021(4)(a), “the Secretary [of State] will 

accept ‘qualifying’ papers from Americans Elect regarding its 

presidential candidates and, in examining those papers, he will not look 

beyond the papers to determine the underlying nature of the minor 

political party.” (DE 9-2, p. 1.) Most saliently here, the Department of 

State advised that the Secretary of State himself would be the one 

accepting the certification.

In turn, Exhibit B is a letter signed by Attorney Maria Matthews, 

the Director of the Division of Elections, a division of the Department of 

State, while another of Lee’s predecessors, Ken Detzner, held the office 

of Secretary of State. This letter was written to the Plaintiff 

Independent Party of Florida on September 7, 2016, and it advised, 

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contrary to the September 1, 2011 letter, that the Department of State

would examine the underlying nature of minor political parties:

Your submission [certifying the Independent Party’s 

presidential and vice presidential candidates] does not comply 

with the requirements of section 103.021(4)(a), Florida 

Statutes, because your party is not affiliated with a ‘national 

party’ – a party that by definition is registered with and 

recognized as a qualified national committee of a political 

party by the Federal Election Commission.

(DE 9-3.)

Based on both the statutory language and the examples of past 

enforcement, the Plaintiffs claim a constitutional injury by the 

enforcement of the national party affiliation requirement, and this 

injury is traceable directly to the Secretary of State. Lee and her 

predecessors have enforced and will continue to enforce this statute 

through the Secretary of State’s agents, all of which the Secretary of 

State has the power to control. Because the Secretary of State is the 

head of the Department of State, an injunction issued against Lee 

barring enforcement of the national affiliation requirement set forth in 

Fla. Stat. § 103.021(4)(a) would constitute an effective redress of the 

Plaintiffs’ constitutional grievances.

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The One-Percent of Registered Voters Signature Requirement

The statute governing minor political party ballot access by 

signature petition reads as follows:

A minor political party that is not affiliated with a national 

party holding a national convention to nominate candidates 

for President and Vice President of the United States may 

have the names of its candidates for President and Vice 

President printed on the general election ballot if a petition 

is signed by 1 percent of the registered electors of this state, 

as shown by the compilation of the Department of State for 

the preceding general election. A separate petition from each 

county for which signatures are solicited shall be submitted 

to the supervisors of elections of the respective county no 

later than July 15 of each presidential election year. The 

supervisor shall check the names and, on or before the date 

of the primary election, shall certify the number shown as 

registered electors of the county. The supervisor shall be 

paid by the person requesting the certification the cost of 

checking the petitions as prescribed in s. 99.097. The 

supervisor shall then forward the certificate to the 

Department of State, which shall determine whether or not 

the percentage factor required in this section has been met. 

When the percentage factor required in this section has been 

met, the Department of State shall order the names of the 

candidates for whom the petition was circulated to be 

included on the ballot and shall permit the required number 

of persons to be certified as electors in the same manner as 

other party candidates.

Fla. Stat. § 103.021(4)(b).

This section involves both the Department of State and the 

individual county Supervisors of Elections. Although Jacobson is clear 

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that the Supervisors of Elections are distinct constitutional offices and 

the Secretary of State has no control over them, their roll in the petition 

process is merely ministerial and not relevant to the key task of 

determining a minor party’s compliance with the one-percent signature 

requirement. The Supervisors of Elections in each County merely tally

the signatures obtained within that county on behalf of the minor party 

candidates and certify that tally to the Department of State. Once the 

Department of State obtains each county’s tally, it is the Department of 

State that determines whether the minor party complied with the onepercent signature requirement.

The Plaintiffs’ claimed injury relates to the one-percent signature 

requirement, and consequently, the injury is directly traceable to 

Department of State because that department is the one that 

determines compliance with the statute. In turn, because Lee is the 

head of the Department of State, an injunction issued against her will 

redress the Plaintiffs’ alleged injuries.

CONCLUSION

As to the constitutional injuries claimed by Plaintiffs by Fla. Stat. § 

103.021(4)(a) and (4)(b), both injuries are directly traceable to Lee and 

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an order enjoining Lee consistent with the Plaintiffs’ prayers for relief 

would fully redress the Plaintiffs’ injuries. Therefore, the Plaintiffs have 

standing in this case.

Dated this 11th day of May, 2020.

Respectfully submitted,

THE BERNHOFT LAW FIRM, S.C.

Attorneys for Plaintiffs

By: /s/ Daniel J. Treuden

Daniel J. Treuden

Admitted pro hac vice

1402 E. Cesar Chavez Street

Austin, Texas 78702

telephone: (512) 582-2100

facsimile: (512) 373-3159

djtreuden@bernhoftlaw.com

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CERTIFICATE OF SERVICE

The foregoing document was served on the Defendant by the ECF 

system at the time of filing:

ashley.davis@dos.myflorida.com

Deputy General Counsel Ashley E. Davis

brad.mcvay@dos.myflorida.com

General Counsel Brad R. McVay

Attorneys for:

Laurel M. Lee, Florida Secretary of State

R.A. Gray Building, Suite 100

500 S. Bronough Street

Tallahassee, Florida 32399

Signed this 11th of May, 2020.

 /s/ Daniel J. Treuden

Daniel J. Treuden

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