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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. )

)

REPLY IN SUPPORT OF

MOTION FOR PRELIMINARY INJUNCTION

COMES NOW Plaintiffs The Independent Party of Florida 

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

(“Party for Socialism”), by and through their attorney of record, Daniel 

J. Treuden, to respectfully file this reply in support of their motion for

preliminary injunction. This paper is filed pursuant to N.D. Fla. Loc. R. 

5.1 and 7.1.

Most of the arguments set forth in Laurel Lee’s Opposition Brief are 

adequately addressed by the Plaintiffs’ Motion for Preliminary 

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Injunction. There are some arguments, however, that require

addressing, primarily to put certain facts in a proper context.

I. Both Parties Have Standing Because Even Minor Political 

Parties that Gain Access to the Ballot by Signature Petition 

Are Not Required to Name the Candidate Prior to 

Circulating the Petition.

Minor political parties must circulate Form DS-DE 18B to have its 

presidential candidate nominee placed on the ballot using the signature 

petition method. A copy of this form is attached as Exhibit A. It can be 

downloaded from the internet from the following web address: 

https://dos.myflorida.com/media/693250/dsde18b.pdf. As can plainly be 

seen on the form, the only information required to be set forth is the 

personal information of the registered voter, the name of the minor 

political party seeking ballot access, and the year of the presidential 

election. As for the minor political parties proceeding under the 

affiliation method of ballot access, they must certify their candidates by 

September 1, 2020. Fla. Stat. ¶ 103.021(4)(a).

The Party for Socialism and Liberation has chosen Gloria La Riva 

to be its Presidential candidate. (Decl. of Bryan Ellis, ¶ 1.) Regarding 

The Independent Party of Florida, they have not yet chosen their 

nominee. They have received interest from a number of potential 

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candidates and are currently in the process of narrowing their search of 

those potential candidates. (Decl. of Ernest Bach, ¶ 2) (hereinafter 

“Bach Decl.”).

Regarding the signature petition method of ballot access, the 

deadline to present the petitions to the Boards of Supervisors has not 

yet arrived. Fla Stat. § 103.021(4)(b) requires that these be presented by 

July 15, 2020, and if the Plaintiffs prevail on the signature petition 

aspect of this case which would result in a lower signature amount, the 

Plaintiffs very well may pursue this method of ballot access.

Based on the foregoing points, both parties have a concrete injury 

they seek to remedy. They both will either be barred from placing their 

chosen candidates to the presidential ballot by certification or will be 

forced to conduct a signature petition that requires an unconstitutional 

amount of signatures.

II. The Independent Party of Florida’s Bylaws Do Not Destroy 

its Standing.

The Independent Party’s bylaws do in fact set forth a method of 

obtaining its electors and cites to Fla. Stat. § 103.021(4)(b). This bylaw, 

however, merely tracks the language of an unconstitutional statute. 

Most importantly, when this bylaw was presented to the Department of 

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State in 2011, the Independent Party actually cited to both Fla. Stat. § 

103.021(4)(a) and (4)(b). It was the Department of State that required 

the Independent Party to amend its bylaws to omit any reference to Fla. 

Stat. § 103.021(4)(a) before they would be accepted by the Department 

of State. (Bach Decl., ¶¶ 6-8.) The Independent Party always intended 

to obtain ballot access in any legal way possible.

III. The Party for Socialism and Liberation Bylaws Do Not 

Destroy its Standing.

The Party for Socialism and Liberation’s bylaws states that it is 

associated with a “national party.” The term as it is used in the bylaws 

is using the common definition of national party, not the statutory 

definition. The statutory definition requires that the minor political 

party be associated with a national party that is recognized by the 

Federal Election Commission as a qualified national committee. Fla 

Stat. § 103.021(4)(a). The Party for Socialism and Liberation has 

standing because it is not associated with national party as that term is 

used in the Florida affiliation statute.

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IV. The Plaintiff Parties Lack of Desire to Associate With a 

National Party, or a Lack of Desire to Associate With a Party 

that is Recognized by the FEC as a Qualified National 

Committee Does Not Destroy Standing.

The Independent Party has expressed no desire to associate with a 

national party instead opting to retain the ability to associate with and 

nominate whatever candidate they choose each presidential election 

cycle. (DE. 20-2, ¶ 8.) One of the main tenets of the Independent Party

is that they are not beholden to any other party or organization and can 

truly pursue their own path. With 3,620,513 people currently registered 

in Florida as “No Party Affiliation,” there is a large base of people to 

which they can market this idea. (DE. 33-7.)

The Department of State decertified the Independent Party at the 

end of 2016 when they party had 262,599 registered voters. The 

Independent Party had to start the recruitment process over and they 

now have 106,580 registered voters, more than twice the amount of all 

other minor political parties combined. (DE. 33-7; Bach Decl., ¶ 5.) This 

desire to remain independent is a fundamental associational right 

because the right to associate also includes the right not to associate:

[T]he Court has recognized that the First Amendment 

protects ‘the freedom to join together in furtherance of 

common political beliefs,’ . . . which ‘necessarily presupposes 

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the freedom to identify the people who constitute the 

association, and to limit the association to those people only.’

. . . That is to say, a corollary of the right to associate is 

the right not to associate.

California Democratic Party v. Jones, 530 U.S. 567, 574 (2000) (internal 

citations omitted) (emphasis added).

Similarly, the Party for Socialism and Liberation has a right to 

associate with the national party of its choice. The suggestion that the 

Party needs to justify some basis for not associating with the national 

Socialist Party is not a basis upon which one could find a lack of 

standing. (DE 34, pp. 6-7.) According to the Socialist Party’s website, 

they are nominating Howie Hawkins as the Presidential candidate. See

https://www.socialistpartyusa.net (last accessed on May 28, 2020). The 

fact that the Party for Socialism and Liberation intends to nominate 

someone else, namely Gloria La Riva, is reason enough not to associate 

with the national Socialist Party. The desire or lack thereof to associate 

with someone else is the crux of the First Amendment’s right to 

associate, and consequently, setting forth the parties’ desires is a 

sufficient basis to establish standing.

Both Plaintiff parties challenge the affiliation rule because the rule 

is not designed to further the state’s interests in regulating the election 

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and the presidential ballot. The affiliation rule sets a standard that 

measures non-Florida support for a political party, and if that standard 

is met, allows the minor party to forego establishing any modicum of 

Florida-based support.

V. The Independent Party of Florida’s Registered Voter Count 

is not “Accidental.”

Attorney Maria Matthews set forth an affidavit in which she asserts 

a belief that some voters did not intend to become Independent Party 

registrants. (DE. 34-1, ¶ 5.) She advises that some people may write 

“Independent” in the minor party line intending to be “no party 

affiliation.” Id. She also references a rule development workshop from 

August 6, 2019. This workshop can be found online at: 

https://thefloridachannel.org/videos/8-6-19-division-of-elections-ruledevelopment-workshop/. The discussion she refers to begins at the 2:16 

point in the video and lasts for about 7 minutes.

The Independent Party of Florida believes Attorney Matthews’ 

concerns are overstated. Attached as Exhibit B is a copy of the Florida 

Voter Registration Application. As can be seen in the lower left hand 

corner, a person must forego the “No Party Affiliation” option, choose 

“Minor Party,” and print the name “Independent” or a variation of that 

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on the blank line. That is not something that would be frequently be

done on an accidental basis.

VI. Richard Winger’s Quotation from De La Fuente v. Padilla

was Misconstrued.

In De La Fuente v. Padilla, 930 F.3d 1101, 1105-06 (9th Cir. 2019), 

the Plaintiffs’ expert Richard Winger was quoted in the record as saying 

“there’s almost nobody left to petition,” using that quote to hold that 

Mr. De La Fuente’s ballot access case could appropriately be denied 

because voters already had a sufficient choice among both major and 

minor partisan candidates. (Decl. of Richard Winger, ¶ 2.) Mr. De La 

Fuente had attempted to gain the Democratic nomination in 2016, and 

having failed that decided to run as an independent. Id. ¶ 3. In the 2016 

California presidential election, there were only three minor parties on 

the ballot (not counting the American Independent Party that 

nominated Donald Trump along with the Republican Party). See

https://elections.cdn.sos.ca.gov/sov/2016-general/sov/2016-completesov.pdf, p. 5 (last accessed on May 29, 2020).

Mr. Winger’s comment regarding “there’s almost nobody left to 

petition” was a statement made in a deposition referring to the 1996 

and 2000 presidential elections when California had eight minor party 

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candidates on the Presidential election ballot. (Winger Decl., ¶ 4.) The 

point was made to show that when there are more minor parties on the 

ballot, there’s usually fewer independent candidates because the 

independent candidates are more likely to find a minor party they can 

work with to gain ballot access. The Plaintiffs’ claims in this case do not

involve independent candidates.

VII. Regarding Ballot Access Statistics, Plaintiff’s Expert did 

not Miss a Relevant Ballot Access Signature Campaign in 

his Analysis.

The Plaintiffs’ expert Richard Winger put forth a chart in support of 

the Motion for Summary Judgment found at DE. 9-4. That chart 

involved minor party and independent candidate signature campaigns.

Kendrick Meek was the Democratic nominee, not a minor party 

candidate nominee. (Winger Decl., ¶ 5.) Regarding the Libertarian 

Party candidate in 1996, both the Libertarian and Reform Party 

candidates met the 1% signature requirement that year, but that year 

required only 65,596 signatures, which is approximately half of the 

current required amount. Id., ¶ 6. The point of the chart was to give 

each state’s largest successful signature campaign by a non-major party 

candidate. As populations increase, percentage-based signature 

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requirements become harder and harder to achieve, which is why Mr. 

Winger was able to opine that only one time in history has a minor 

party or independent candidate achieved ballot access in a state by 

successfully obtaining more signatures than Florida’s current 

requirement of 132,781. (DE 9-1, ¶ 42.)

Dated this 29th 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

Attorney for:

Laurel M. Lee, Florida Secretary of State

R.A. Gray Building

500 S. Bronough Street

Tallahassee, Florida 32399

Signed this 29th of May, 2020.

 /s/ Daniel J. Treuden

Daniel J. Treuden

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