UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

KIRK NIELSEN, MORGAN 

OUTLAW, REVEL LUBIN, FELICIA 

BRUCE, BARBARA DEVANE, RAY 

DAVIS, DONESA JACKSON, 

ALIANZA FOR PROGRESS, INC., 

FLORIDA ALLIANCE FOR 

RETIRED AMERICANS, INC., and 

PRIORITIES USA, 

Plaintiffs,

v.

RON DESANTIS, in his official 

capacity as Florida Governor, et al,

Defendants.

Case No. 4:20-cv-236-RH-MJF

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION 

FOR PRELIMINARY INJUNCTION

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TABLE OF CONTENTS

I. INTRODUCTION ........................................................................................... 1

II. BACKGROUND............................................................................................. 2

A. The COVID-19 pandemic has upended daily life and Florida elections. ....... 2

B. Florida’s vote-by-mail system threatens to disenfranchise thousands of voters 

in this year’s elections. ................................................................................. 5

1. Vote-by-Mail Postage Requirement........................................................... 6

2. Election Day Receipt Deadline .................................................................. 7

3. Voter Assistance Ban................................................................................13

III. ARGUMENT .................................................................................................15

A. Plaintiffs are likely to succeed on the merits. ...............................................15

1. Plaintiffs are likely to succeed on their right-to-vote claim. ......................15

2. Plaintiffs are likely to succeed on their claim that the Election Day Receipt 

Deadline violates the Due Process Clause. ...............................................21

3. Plaintiffs are likely to succeed on their claim that the Postage Requirement 

violates the Twenty-Fourth and Fourteenth Amendments. .......................25

4. Plaintiffs are likely to succeed on their claim that the Voter Assistance Ban 

violates Plaintiffs’ First Amendment rights. .............................................27

5. Plaintiffs are likely to succeed on their claim that the Voter Assistance Ban 

is pre-empted by Section 208 of the Voting Rights Act. ...........................29

B. Plaintiffs will suffer irreparable injury absent an injunction.........................32

C. The balance of the equities and public interest favor an injunction. .............33

IV. CONCLUSION ..............................................................................................34

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TABLE OF AUTHORITIES

CASES PAGE(S)

ii

Buckley v. Am. Constitutional Law Found., Inc.,

525 U.S. 182 (1999).........................................................................................27

Burdick v. Takushi,

504 U.S. 428 (1992)...................................................................................15, 16

Carillon Importers, Ltd. v. Frank Pesce Int’l Grp., Ltd.,

112 F.3d 1125 (11th Cir. 1997)........................................................................15

Crawford v. Marion Cty. Election Bd.,

553 U.S. 181 (2008).........................................................................................16

Democratic Exec. Comm. of Fla. v. Lee,

915 F.3d 1312 (11th Cir. 2019)........................................................................16

Democratic Nat’l Comm. v. Bostelmann,

No. 20-cv-249-wmc, 2020 WL 1638374 (W.D. Wis. Apr. 2, 2020).................19

Democratic Nat’l Comm. v. Republican Nat’l Comm.,

No. 20-1538 (7th Cir. Apr. 3, 2020), ECF No. 30 ............................................19

Driscoll et al. v. Stapleton,

No. DV 20-408 (Mt. D. Ct. May 22, 2020)............................................8, 19, 20

Elrod v. Burns,

427 U.S. 347 (1976).........................................................................................31

Fla. State Conference of N.A.A.C.P. v. Browning,

522 F.3d 1153 (11th Cir. 2008) (Barkett, J., concurring and 

dissenting in part) ............................................................................................23

Ga. Coal. for People’s Agenda, Inc. v. Kemp,

347 F. Supp. 3d 1251 1268 (N.D. Ga. 2018)....................................................32

Gade v. Nat’l Solid Wastes Mgmt. Ass’n,

505 U.S. 88 (1992)...........................................................................................29

Grayden v. Rhodes,

345 F.3d 1225 (11th Cir. 2003)........................................................................21

Hadnott v. Amos,

394 U.S. 358 (1969).........................................................................................27

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CASES PAGE(S)

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Harman v. Forssenius,

380 U.S. 528 (1965)...................................................................................25, 26

Harper v. Va. State Bd. of Elect.,

383 U.S. 663 (1966).........................................................................................25

Hunter v. Hamilton Cty. Bd. of Elections,

635 F.3d 219 (6th Cir. 2011)............................................................................22

Jones et al. v. DeSantis et al.,

No. 4:19-cv-00300, slip op. (N.D. Fla. May 24, 2020)...............................25, 26

League of Women Voters of Fla., Inc. v. Detzner,

314 F. Supp. 3d 1205 (N.D. Fla. 2018) ................................................16, 31, 33

League of Women Voters of Fla. v. Browning,

863 F. Supp. 2d 1155 (N.D. 2012) ......................................................28, 32, 33

League of Women Voters of N.C. v. North Carolina,

769 F.3d 224 (4th Cir. 2014)............................................................................32

M.L.B. v. S.L.B.,

519 U.S. 102 (1996).........................................................................................25

Martin v. Kemp,

341 F. Supp. 3d 1326 (N.D. Ga. 2018), appeal dismissed sub nom. 

Martin v. Sec’y of State of Ga., No. 18-14503-GG, 2018 WL 

7139247 (11th Cir. Dec. 11, 2018)...................................................................22

Mathews v. Eldridge,

424 U.S. 319 (1976).........................................................................................21

Meyer v. Grant,

486 U.S. 414 (1988).........................................................................................27

Middleton v. Andino,

No. 3:20-cv-01790, ECF No. 31 (D.S.C. May 25, 2020)..................................20

Minnesota v. Thao,

62-CR-18-827 (Minn. Dist. Ct. Oct. 23, 2018)...........................................30, 31

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CASES PAGE(S)

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Ne. Ohio Coal. for Homeless v. Husted,

696 F.3d 580 (6th Cir. 2012)................................................................18, 20, 23

Norman v. Reed,

502 U.S. 279 (1992)...................................................................................16, 21

Obama for Am. v. Husted,

697 F.3d 423 (6th Cir. 2012)............................................................................31

OCA-Greater Houston v. Texas,

867 F.3d 604 (5th Cir. 2017)......................................................................29, 30

Priorities USA et al. v. Nessel,

No. 4:19-cv-1334, ECF No. 59 (E.D. Mich. May 22, 2020).............................28

Project Vote, Inc. v. Kemp,

208 F. Supp. 3d 1320 (N.D. Ga. 2016).............................................................32

Raetzel v. Parks/Bellemont Absentee Election Bd.,

762 F. Supp. 1354 (D. Ariz. 1990)...................................................................24

Republican Nat’l Comm. v. Democratic Nat’l Comm.,

140 S. Ct. 1205 (2020)...........................................................................8, 11, 19

Reynolds v. Sims,

377 U.S. 533 (1964).........................................................................................22

Saucedo v. Gardner,

335 F. Supp. 3d 202 (D.N.H. 2018) ...........................................................22, 24

Tashjian v. Republican Party of Conn.,

479 U.S. 208 (1986)...................................................................................27, 28

Taylor v. Louisiana,

419 U.S. 522 (1975)...................................................................................17, 32

Williams v. Rhodes,

393 U.S. 23 (1968)...........................................................................................28

STATUTES AND OTHER AUTHORITIES

52 U.S.C. § 10310(c)(1)........................................................................................30

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52 U.S.C.A. § 10508.............................................................................................29

Fla. Stat. § 101.6103(2)...........................................................................................7

Fla. Stat. § 101.62...................................................................................................5

Fla. Stat. § 101.64...................................................................................................7

Fla. Stat. § 101.65...................................................................................................5

Fla. Stat. § 101.67(2) ..............................................................................................7

Fla. Stat. § 102.112 ...............................................................................................19

Fla. Stat. § 104.041 ...............................................................................................20

Fla. Stat. § 104.061(1)...........................................................................................20

Fla. Stat. § 104.0616 .............................................................................................13

Fla. Stat. § 104.0616(2).........................................................................................29

Fla. Stat. §101.6952 ..............................................................................................18

S. Rep. No. 97-417 (1982)....................................................................................30

Voting Rights Act Section 208............................................................ 28, 29, 30, 31

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I. INTRODUCTION

The August 18, 2020 primary (“August Primary”) and November 3, 2020 

general (“November Election”) are mere months away, and Florida’s Supervisors 

of Elections (“Supervisors”) are sounding the alarm about the challenges they will 

face in this public health crisis: a severe shortage of polling locations, poll workers, 

and supplies, all of which will make it difficult to conduct in-person voting as 

Florida has done in the past. To avoid packing voters into a few, consolidated 

polling locations—a strategy which resulted in disenfranchisement, hours-long 

lines, and the spread of COVID-19 in Wisconsin’s recent primary—Florida’s 

Supervisors are encouraging voting by mail and expecting voters will do so at 

unprecedented rates. 

As Florida voters overwhelmingly turn to voting by mail, however, several 

provisions of Florida law threaten voters’ ability to successfully exercise their right 

to vote. First, Florida requires voters to bear the burden and cost of postage to vote 

by mail (“Vote-by-Mail Postage Requirement”). Second, Florida does not count 

vote-by-mail ballots that arrive after 7 p.m. on Election Day, even if the ballot was

mailed before Election Day (“Election Day Receipt Deadline” or “Receipt 

Deadline”)—a provision that disenfranchised over 15,000 voters in 2018, even 

before a pandemic induced an increase in mail voting and increased pressure on a 

struggling postal service. Third, Florida prohibits trained, paid organizers or 

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campaign staff from assisting voters with their mail ballots—the very persons best 

positioned to assist voters in successfully navigating the vote-by-mail process 

(“Voter Assistance Ban”) (collectively, the “Challenged Provisions”).

Even under ordinary circumstances, the Challenged Provisions burden all 

Florida voters and many severely so. During the ongoing pandemic⸺when voting 

by mail has become the “fail safe” for accessing the franchise⸺these provisions

are even more unjustifiable. If left in place, they will disenfranchise thousands 

more this year. 

Plaintiffs move for preliminary injunctive relief to protect their rights and 

the rights of millions of Florida voters who will vote in the upcoming elections.

II. BACKGROUND

A. The COVID-19 pandemic has upended daily life and Florida elections.

A novel coronavirus is spreading through the country, with more than 

50,000 known infections in Florida, and over 2,000 documented fatalities⸺more 

than 80% of which were from Floridians aged 65 and older and, in central Florida, 

a disproportionate number of whom were Hispanic. Ex. 2 ¶¶21-23 (Ball Rpt.).1

These numbers continue to rise and are likely severely undercounted. See Exs. 21, 

22. Projections show the crisis persisting into the fall; social distancing may be 

 

1 All exhibit numbers correspond to the exhibits attached to the Notice of Filing Exhibits in 

Support of Plaintiffs’ Motion for Preliminary Injunction. ECF No. 88.

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required for 18 more months, until a vaccine is developed and distributed. See Ex. 

2 ¶¶26-28 (opining to “multiple waves” in the fall and continued social distancing);

Ex. 23 (federal government projection); Ex. 24 (scientists’ projection). As the 

Director of the Centers for Disease Control and Prevention (“CDC”) and other 

experts recently cautioned, this fall is likely to see another wave of infections that 

may “be even more difficult than the one we just went through.” Ex. 25; see also

Ex. 2 ¶28. Even as Florida’s leaders have allowed the state to partially reopen, 

many have elected to stay home fearing the virus’ threat to their health. See Ex. 26.

And for good reason: “20.5% of Florida’s population is comprised of people who 

are 65 or older, which is one of the largest senior citizen populations in the 

country.” Ex. 2 ¶22. This demographic heightens the fatality risk in Florida. Id. 

Beyond posing a direct threat to Floridians’ health, the pandemic is also 

upending elections. See Ex. 2 ¶29 (discussing risk of exposure in elections). On 

March 17, 2020, in the pandemic’s early stages, Florida held a presidential 

preference primary election (“March PPP”). While voters waited to vote clad in 

gloves and masks, Supervisors encountered significant challenges: polling 

locations were unavailable, hand sanitizer and other materials were in short supply, 

and a substantial numbers of poll workers⸺most over 65 and at high risk for 

experiencing severe cases of COVID-19⸺cancelled at the last minute. See Ex. 27; 

see also Ex. 2 ¶22. In Palm Beach County, over 800 poll workers backed out

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shortly before the election due to coronavirus. See Ex. 28. And, after the election, 

two poll workers in Broward County tested positive for COVID-19. See Ex. 29. 

The CDC, anticipating such difficulties in conducting elections, is recommending

voting by mail to reduce the spread of COVID-19 and reducing methods of voting 

that lead to direct contact with other voters and poll workers. See Ex. 30; see also

Ex. 2 ¶28 (discussing social distancing at polling locations and need for high-risk 

individuals to limit in-person voting). 

Understanding these challenges, Florida’s Supervisors recently sent a letter 

to Governor DeSantis explaining the difficulties administering in-person voting in 

the March PPP and anticipating “that these challenges will continue and likely will 

impact the August [Primary] and the November [Election].” Exs. 27, 31. While

Florida has now requested more than $20-million in available federal funds for 

pandemic-related election support, see Ex. 32, it has yet to take meaningful steps to 

adequately prepare for the anticipated surge in mail voting this year. 

Historically, 70% of Florida’s voters have typically voted in person. See Ex. 

1 ¶61 (Herron Rpt). But like other states that have experienced historic absentee

turnout since the pandemic began, see id. ¶42, Florida will see significant increases 

in mail voting in the upcoming elections due to COVID-19⸺much of it by firsttime mail voters. See id. ¶¶43, 64; Exs. 33, 34 (Supervisors expect “a huge increase 

in mail-in ballots” and are affirmatively sending mail ballot request forms to 

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voters); Ex. 20 ¶5 (State Senator anticipating constituents switching to vote-bymail); Ex. 12 ¶¶3-4 (in-person voter plans to vote by mail for the first time); Ex. 8

¶¶3-5; Ex. 14 ¶¶9, 11. The prospect of an exponential increase in mail ballots is 

even more harrowing in Florida—even without such increases, Supervisors have

failed to send scores of mail ballots to voters on time, raising concerns that similar 

delays may hamper the ability of Floridians to vote-by-mail this year. Ex. 1 ¶¶114-

116. 

B. Florida’s vote-by-mail system threatens to disenfranchise thousands of 

voters in this year’s elections.

All Florida voters have the right to vote by mail. See Fla. Stat. § 101.62. 

Under normal circumstances, mail ballots are essential for voters whose 

disabilities, work schedules, family care responsibilities, health conditions, or lack 

of easy access to transportation or polling places make in-person voting difficult or 

impossible. During the pandemic, mail voting has become essential for all voters 

who seek to protect their health and safety. See Ex. 2 ¶28; Ex. 30. But switching to 

voting by mail is not easy: just as the pandemic was beginning, first-time mail 

voters (who had voted successfully in-person in prior general elections) were three 

times more likely to have their mail ballot rejected than experienced mail voters 

were. Ex. 1 ¶175. In particular, the Challenged Provisions impose significant 

burdens on the ability of Floridians to successfully vote by mail during the 

pandemic.

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1. Vote-by-Mail Postage Requirement

Florida requires vote-by-mail ballots to have sufficient postage to reach their 

Supervisor’s Office. Fla. Stat. § 101.65. While some Florida counties have 

historically picked up the tab for voters, most have not. See, e.g., Ex. 35

(Escambia: mail ballots “require a $.50 first-class postage stamp”); Ex. 36 (Citrus:

“VBM ballots . . . will require $.50 postage”); Ex. 37 (Clay: “[p]lace a postage 

stamp on the return envelope”). 

The Postage Requirement imposes monetary and transaction costs on voting.

The actual cost to vote via mail ballot starts at $0.55 for a USPS Forever Stamp but 

can increase if the ballot is several pages long, requiring more postage. See, e.g., 

Ex. 38 (requiring $1.50 in postage). This cost is not insubstantial; in the 2017 

Postal Omnibus Survey, approximately a quarter of respondents considered the 

then $0.49 Forever Stamp to be “expensive.” Ex. 39. Moreover, voters do not 

always have stamps. Unless the voter can order a sheet of stamps online, pay for 

shipping costs, wait 7-10 days for delivery, or has access to a stamps.com account 

and printer, see Ex. 1 ¶39; Ex. 40, obtaining postage requires the voter to go in 

person to a post office or another business that sells stamps. See Ex. 1 ¶39. For 

voters who are elderly, disabled, live far from a post office, or have limited access 

to transportation, the Postage Requirement imposes significant transaction costs on 

casting a mail ballot and may deter voting. See id. ¶¶70-72.

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The Postage Requirement imposes an even greater burden during the 

pandemic. As unemployment skyrockets, the Postage Requirement creates

obstacles to voting for Floridians now facing financial concerns over housing, 

food, and other essentials, including millions who have applied for unemployment 

benefits since the pandemic began. See Ex. 41. As an increasing number of voters 

find themselves in desperate economic situations, the cost of stamps is not 

inconsequential. See Ex. 1 ¶¶76-77; Ex. 13 ¶¶8-9; Ex. 39. 

The crisis is also exacerbating the ancillary burdens of obtaining postage. 

Obtaining postage requires voters to break social-distancing protocol and engage in 

in-person interactions that risk spreading or contracting COVID-19. See Ex. 1 

¶137; Ex. 2 ¶26. Given that many voters requesting mail ballots will do so

precisely because they concerned for their own health or the health of loved ones, 

they will be far less able to venture out to purchase stamps if they do not already 

have them. See Ex. 5 ¶6; Ex. 8 ¶6. Thus, such voters will be delayed in returning 

their ballot or unable to return their ballot by mail. 

2. Election Day Receipt Deadline

Even if voters successfully navigate the Postage Requirement, Florida does 

not count mail ballots received after 7:00 p.m. on Election Day. See Fla. Stat. §§ 

101.67(2), 101.6103(2), and 101.64. This means that, regardless of the date the 

voter mails the ballot, the voter’s ballot will not be counted if it arrives after the 

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Deadline, even if is postmarked by Election Day and even if its late arrival is 

entirely beyond the voter’s control.

As more voters turn to voting by mail and the potential for mail delays 

grows, courts, including the Supreme Court, are recognizing that Receipt 

Deadlines must be enjoined, and states ordered to accept—and count—ballots 

mailed by Election Day to prevent widespread disenfranchisement. See Republican 

Nat’l Comm. v. Democratic Nat’l Comm., 140 S. Ct. 1205, 1208 (2020); Ex. 59

(showing imposition of a postmark deadline resulted in over 80,000 voters’ ballots 

being counted that would have been discarded under an Election Day Receipt 

Deadline); Ex. 58, Driscoll et al. v. Stapleton, No. DV 20-408 (Mt. D. Ct. May 22, 

2020) (preliminarily enjoining Montana’s Receipt Deadline and recognizing that 

such a deadline is likely to disenfranchise thousands of voters). 

Florida’s Receipt Deadline, like Wisconsin’s or Montana’s, regularly 

disenfranchises thousands of voters—even before the pandemic. In the 2018 

General Election, more than 15,000 ballots were discarded because they arrived

after the Deadline. Ex. 1 ¶85. The Deadline is particularly likely to disenfranchise 

young voters, see id. ¶¶91-93, many of whom are attending school out-of-state and 

whose ballots correspondingly take longer to reach them and then be delivered 

back to Florida. See Ex. 4 ¶¶3-6 (student disenfranchised in two consecutive 

general elections by Receipt Deadline); Ex. 10 ¶¶6-11 (disenfranchised by 

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Deadline); Ex. 9 ¶¶5-7 (same); Ex. 19 ¶¶5-6. Overall, in the 2018 General Election, 

the Deadline was approximately eight times likelier to disenfranchise voters under 

26 than 60-year-old voters. See Ex. 1 ¶93. But the Deadline also disenfranchises 

significantly older voters (i.e., those 75 and older), see id. ¶95—a population that is 

more likely to have difficulty returning a ballot in-person compared to their 

relatively younger counterparts, particularly during the pandemic. The figure 

below demonstrates this trend:

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Ex. 1 at ¶91. The Receipt Deadline is also twice as likely to disenfranchise 

Hispanic voters compared to White voters. Id. ¶¶89-90. Moreover, the number of 

voters disenfranchised by the Receipt Deadline has persisted (and even worsened) 

over time. See id. ¶¶85-87 (rate of late ballots increased from the 2016 General

Election to the 2018 General Election to the March PPP). 

The Receipt Deadline disenfranchises an increasing number of voters in part 

because USPS has eliminated hundreds of processing centers, leading to longer

mail delivery times and delays—a fact well-known to Florida’s Supervisors. See 

Ex. 42 (USPS “has been systematically closing numerous regional processing 

centers . . . result[ting] in delays of several days, in some cases, in moving VBM 

ballots from Point A to Point B”); Ex. 18 ¶10 (former Supervisor recognizing 

ballots take longer to be delivered); Ex. 20 ¶8. 

USPS now recommends that voters mail their ballots a full week before

Election Day. See Ex. 43. Some counties, like Pinellas County, have 

communicated this “cutoff” to voters. See Ex. 44 (“PLEASE NOTE: Postal 

delivery service has changed. Voters are advised to allow at least ONE WEEK for 

their ballot to be returned by mail.”). But many counties have suggested far less

time for return. See, e.g., Ex. 45 (Collier County recommending two days); Ex. 46

(Citrus recommending three to five days). Other counties fail to provide guidance

on this timing. See, e.g., Ex. 47 (St. Lucie County instructing, “you may vote your 

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ballot at your leisure—in the comfort of your home—and return it by mail or hand 

deliver, no later than 7:00 pm on Election Day”). A patchwork of confusing 

suggestions results, largely failing to give voters adequate notice to mail their 

ballot significantly before Election Day.

But the disenfranchisement resulting from the Receipt Deadline is more than 

a messaging problem. The Deadline also disenfranchises voters who have mailed 

their ballots significantly before Election Day. See Ex. 3 ¶¶4-10 (Broward voter 

disenfranchised by Receipt Deadline despite mailing ballot eight days before

Deadline); Ex. 11 ¶5. Worse yet, countless voters simply cannot meet the Receipt 

Deadline because they are not sent a ballot with adequate time to return it. Ex. 1

¶¶114-117; Ex. 9 ¶¶3-6 (received mail ballot the evening before Election Day, 

despite requesting it over a month before election); Biggs Decl. ¶ 8 (received mail 

ballot only a few days before Election Day). These are not isolated incidents. In 

2018, Florida counties sent almost 10,000 mail ballots to voters after the statutory 

cutoff for sending out ballots, giving voters inadequate—or no time at all—to 

return ballots by the Deadline.

2

Ex. 1 ¶¶110, 117. Similarly, Supervisors sent more 

than 11,000 mail ballots after the statutory cutoff in the March PPP. See id ¶114-

117. Florida’s Receipt Deadline has disenfranchised and will continue to 

 

2 When a voter’s ballot does not arrive in time to be counted, many counties fail to notify the 

voter, meaning that voters have no indication to mail their ballot earlier in the next election. See, 

e.g., Ex. 48 (Miami Dade: “[n]o notifications are sent to voters whose ballot arrives after 

Election Day”); Ex. 49 (no notification for St. Lucie voters).

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disenfranchise voters who are simply “in line” to receive ballots, but who cannot 

ensure their ballots’ receipt by Election Day. See Republican Nat’l Comm., 140 S. 

Ct. at 1211 (“If a voter already in line by the poll’s closing time can still vote, why 

should [a state’s] absentee voters, already in line to receive ballots, be denied the 

franchise?”) (Ginsburg, J., dissenting from stay).

This year’s anticipated surge of mail ballots will put an unprecedented strain 

on this entire system. The Supervisors, who struggle to meet the demand for mail

ballots under normal circumstances, have already asked the Governor to suspend 

the provision of law requiring them to mail a ballot within 2 business days of 

receiving a request, seeking more time to complete those requests. See Ex. 27. This

surge of mail ballots also threatens to overwhelm USPS, which is suffering from 

severe budgetary shortfalls, staffing shortages, and reduced capacity. See Ex. 50. 

The consequences of these issues are already playing out across the country. As a 

result of staff shortages, overwhelming requests for mail ballots, and USPS 

breakdowns, thousands of Wisconsin voters did not receive their requested ballots 

in time to vote in the state’s recent primary election. See, e.g., Ex. 51 (referencing

“numerous reports of absentee ballots not being delivered” in time). More recently, 

Ohio’s Secretary of State wrote to congressional leaders about similar postal delays 

in Ohio’s April primary election. See Ex. 52 (reporting mail delays as long as 7 to 

9 days).

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For all these reasons, it is nearly certain that the Receipt Deadline will

disenfranchise substantial numbers of lawful Florida voters who vote by mail 

during the pandemic. Indeed, just as this crisis was beginning, Florida election 

officials discarded nearly 9,000 mail ballots in the March PPP for arriving after the 

Receipt Deadline. Ex. 1 ¶85. Should the Receipt Deadline remain in place for the 

November Election, expert analysis conservatively estimates that if mail voting 

occurs at the same rate as it did in the March PPP, anywhere from 21,073 to 54,348 

voters will be disenfranchised by the Deadline. See id. ¶¶193-199. However, if the 

rate of mail voting increases consistent with other states that have held elections 

during later periods of the pandemic, anywhere from 33,175 to 96,405 voters will 

be disenfranchised. See id. at Table 18.

3. Voter Assistance Ban 

The staggering number of voters that Florida’s Receipt Deadline consistently 

disenfranchises shows that voters need assistance returning their ballots. This 

assistance is crucial for voters for whom personally returning their ballot in person

(particularly if received too late to mail back) will impose significant burdens—

including voters who are themselves or who have close contact with someone 

vulnerable to COVID-19, voters with disabilities, low-income voters, and young 

voters, many of whom lack easy access to reliable transportation. See Ex. 1 ¶¶ 13-

14, 40, 47. Florida law, however, largely limits voters’ delivery assistance options 

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to “immediate family,” criminalizing the receipt of “a pecuniary or other benefit” 

for assisting voters with absentee ballots unless the voter is an “immediate family 

member,” i.e., spouse, parent, child, grandparent, or sibling. Fla. Stat. § 104.0616. 

As a result, paid, trained professionals, such as campaign staff or community 

organizers, may not assist a voter in returning their ballot without risking criminal 

prosecution. See Ex. 53 (instructing that “[a] paid campaign worker collecting 

absentee ballots from voters would violate the law”). 

Even under normal circumstances, the Ban makes it needlessly difficult for 

certain voters to receive help, especially those who live alone or have no family 

members willing and able to deliver ballots. See Ex. 5 ¶¶3, 5; Ex. 8 ¶8; Ex. 6 ¶7; 

see also Ex. 1 at ¶¶99, 202-203 (explaining voters who indicate they “need 

assistance voting” are disparately disenfranchised). Help with returning ballots is 

also especially needed in minority communities, which face greater rates of 

disenfranchisement from the current Receipt Deadline, may be unfamiliar with 

voting by mail, and stand to benefit the most from organized assistance from 

community organizers. See id. ¶161, 220-221; Ex. 14 ¶¶14-15; Ex. 14 ¶¶11-12; Ex. 

20 ¶11.

The Voter Assistance Ban presents even greater obstacles in the ongoing 

pandemic. Volunteers who previously assisted voters, or family members who 

previously assisted with hand-delivering mail ballots, are understandably no longer 

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willing to do so out of safety concerns. See Ex. 6 ¶8; Ex. 7 ¶¶3-4; Ex. 13 ¶8. With

the expected surge in mail voters, particularly from voters who are most vulnerable 

to COVID-19, voters will need help from organizations who are ready, willing, and 

able to deploy trained, paid organizers to ensure their ballots are returned in time to 

be counted. See Ex. 15 ¶¶14-15; Ex. 16 ¶¶12-13; Ex. 14 ¶12. Beyond returning 

ballots, trained professionals can also remind voters to sign their ballots—a 

misstep that unintentionally disenfranchises thousands each year, and is 

particularly likely to disenfranchise first-time mail voters. Ex. 1 ¶177. Florida’s 

Voter Assistance Ban, however, prevents organizations from deploying that help.

III. ARGUMENT

Plaintiffs are entitled to a preliminary injunction because: (1) they are 

substantially likely to succeed on the merits; (2) they will suffer irreparable harm 

absent relief; (3) the harm they will suffer outweighs harm the Defendants will 

suffer because of an injunction; and (4) an injunction is in the public interest. 

Carillon Importers, Ltd. v. Frank Pesce Int’l Grp., Ltd., 112 F.3d 1125, 1126 (11th 

Cir. 1997).

A. Plaintiffs are likely to succeed on the merits.

1. Plaintiffs are likely to succeed on their right-to-vote claim.

The Challenged Provisions unduly burden Florida voters’ right to vote by 

imposing multiple barriers to casting a vote-by-mail ballot that are unjustifiable, 

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particularly during the present unprecedented public health crisis. 

Under the Anderson/Burdick balancing test, courts must “weigh ‘the 

character and magnitude of the asserted injury to the rights . . . that the plaintiff 

seeks to vindicate’ against ‘the precise interests put forward by the State as 

justifications for the burden imposed by its rule,’” considering “‘the extent to 

which those interests make it necessary to burden the plaintiff’s rights.’” Burdick v. 

Takushi, 504 U.S. 428, 434 (1992) (quoting Anderson v. Celebrezze, 460 U.S. 780, 

788–89 (1983)). This inquiry is highly fact-specific and may not be undertaken by 

rote. Rather, the court applies a “flexible standard.” Id. “The more a challenged 

law burdens the right to vote, the stricter the scrutiny to which we subject that 

law.” Democratic Exec. Comm. of Fla. v. Lee, 915 F.3d 1312, 1318, 1319 (11th 

Cir. 2019)

When voting rights are severely restricted, a law “must be narrowly drawn to 

advance a state interest of compelling importance.” Norman v. Reed, 502 U.S. 279, 

280 (1992). But even less severe burdens remain subject to balancing: “However 

slight” the burden on voting rights may appear, “it must be justified by relevant 

and legitimate state interests ‘sufficiently weighty to justify the limitation.’” 

Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 191 (2008) (controlling op.) 

(quoting Norman, 502 U.S. at 288–89). In evaluating the burden, a court must 

focus not only on the burden on the general electorate, but also the burden on the 

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actual individuals affected by the law. Id. at 201. “Disparate impact matters under 

Anderson-Burdick.” League of Women Voters of Fla., Inc. v. Detzner, 314 F. Supp. 

3d 1205, 1216-20 (N.D. Fla. 2018). Finally, disenfranchisement severely burdens 

the right to vote—and disenfranchisement of even small numbers of voters 

constitutes an undue burden. See Lee, 915 F.3d at 1321 (finding an undue burden 

under Anderson-Burdick, and recognizing “[i]t is a ‘basic truth that even one 

disenfranchised voter—let alone several thousand—is too many’”) (quoting 

League of Women Voters of N.C. v. North Carolina (“LOWV NC”), 769 F.3d 224, 

244 (4th Cir. 2014)). 

Under this framework, each of the Challenged Provisions separately and 

cumulatively inflicts undue burdens on Plaintiffs’ and countless other Floridians’ 

voting rights that cannot be justified by Florida’s interests in imposing them. 

First, the Vote-By-Mail Postage Requirement imposes monetary costs on 

voters to cast a mail ballot, a burden that is particularly severe this year, when mail 

voting is likely to be many voters’ only safe method of exercising their right to 

vote. Supra at 4-5. It also forces voters to risk their health to obtain postage at a 

post office or other location, deterring voters with disabilities, limited access to 

transportation, and concerns about contracting COVID-19 from voting. Supra at 6-

7. The State has no adequate justification for failing to pre-pay postage for such 

ballots. Its failure to do so is purely a matter of administrative convenience, which 

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cannot outweigh burdens on fundamental rights. See Taylor v. Louisiana, 419 U.S. 

522, 535 (1975). Moreover, Congress has allocated $20 million for Florida to use 

for coronavirus-related election expenses, which can be used to cover the cost of 

prepaying postage. See Exs. 32, 54.

Second, even before the onset of the pandemic, the Election Day Receipt 

Deadline severely burdened the right to vote by disenfranchising thousands of 

eligible voters⸺including more than 15,000 in 2018 alone⸺who mail their ballot 

on or before Election Day, simply because their ballots do not arrive by 7:00 p.m. 

on Election Day. Supra at 8. For those voters who, through no fault of their own, 

do not receive a mail ballot until shortly before Election Day, or whose ballots take 

longer than expected to arrive in the mail, the punishment is swift and severe: total 

disenfranchisement. Further the Receipt Deadline is disproportionately likely to 

disenfranchise Florida’s young, minority, elderly, and disabled voters—some of 

the very voters most likely to resort to mail voting during a pandemic. Supra at 8-

9. The number of voters disenfranchised by the Receipt Deadline is all but certain 

to increase as Supervisors and USPS are crushed under a surge of requests for mail 

ballots. Supra at 12. This is precisely what Florida saw in the March PPP, near the 

beginning of the COVID-19 crisis. Rejection rates increased from the 2018 

General Election to the March PPP, demonstrating that far more voters are likely to 

be disenfranchised in the upcoming elections. Supra at 9. Plaintiffs’ expert 

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estimates that, at a minimum, the Receipt Deadline will disenfranchise tens of 

thousands voters in the November Election. Supra at 12. 

The State has no adequate justification for discarding these mail ballots. See 

Ne. Ohio Coal. for Homeless v. Husted, 696 F.3d 580, 597 (6th Cir. 2012) 

(“NEOCH”) (finding likely constitutional violation after state failed to identify 

“precise interests” justifying “substantial burden” when ballots were rejected due 

to no fault of the voter). Florida already accepts the ballots of military and overseas 

voters that are mailed by Election Day and arrive within ten days of the election.

See Fla. Stat. §101.6952. Plaintiffs and Florida voters should be entitled to the 

same allowances, particularly during a global pandemic when stateside voters face 

many of the same hurdles UOCAVA voters do in returning their ballots. Moreover, 

because Florida need not finalize its election results for 12 days after the election, 

see Fla. Stat. § 102.112, extending the deadline to receive ballots would not 

jeopardize the State’s ability to finalize election results. See Ex. 18 ¶¶ 14-16; see 

also Ex. 58, Driscoll, at *11 (finding no adequate state interest in maintaining a 

Receipt Deadline where postmark deadline would not frustrate timely election 

results certification). 

Wisconsin’s recent experience is instructive: Last month, a Wisconsin 

federal court extended the deadline for receipt of absentee ballots because voters 

were at risk of being disenfranchised by Wisconsin’s Election Day Receipt 

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Deadline. See Democratic Nat’l Comm. v. Bostelmann, No. 20-cv-249-wmc, 2020 

WL 1638374, at *5, *12, n.14 (W.D. Wis. Apr. 2, 2020). The court concluded that 

“the state’s general interest in the . . . deadline is not so compelling as to overcome 

the burden faced by voters who, through no fault of their own, will be 

disenfranchised by” its enforcement.” Id. at *17. The Seventh Circuit affirmed. See

Order, Democratic Nat’l Comm. v. Republican Nat’l Comm., No. 20-1538 (7th Cir. 

Apr. 3, 2020), ECF No. 30. Shortly thereafter, the Supreme Court, evaluating the 

extension under Anderson-Burdick agreed that it was appropriate to require the 

state to accept and count ballots mailed by Election Day, even though Wisconsin 

(like Florida) ordinarily rejects ballots received after Election Day. See Republican 

Nat’l Comm., 140 S. Ct. at *1208; see also Ex. 58, Driscoll, at *17 (enjoining 

Montana’s Receipt Deadline and ordering acceptance of ballots postmarked on or 

before Election Day).3That is precisely the relief Plaintiffs seek here.

Finally, the Voter Assistance Ban imposes undue burdens on Florida voters, 

prohibiting countless voters from obtaining help in casting their mail ballot. Those 

without access to postage, who lack easy access to reliable transportation to get to 

a polling place, who are concerned about the risk in-person voting poses to their 

 

3 Although one court recently declined to enjoined South Carolina’s Receipt Deadline, see 

Middleton v. Andino, No. 3:20-cv-01790, ECF No. 31 (D.S.C. May 25, 2020), the court did so 

after attributing late ballots to South Carolina voters’ failure to submit their ballots on time. 

Here, Plaintiffs have presented extensive evidence that Florida voters are being disenfranchised 

by the Receipt Deadline for reasons outside their control, and the state cannot disenfranchise 

these voters in a manner consistent with the Constitution. See NEOCH, 696 F.3d at 597. 

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health or the health of their loved ones, and who do not have family member who 

can assist them, will be unable to return their ballot. See supra at 13-14. These 

burdens disproportionately fall on Florida’s minority voters and vulnerable 

populations. See id. A generalized interest in promoting “election integrity” is 

insufficient to outweigh these burdens, particularly where many other Florida laws 

already criminalize any exercise of undue influence or voting fraud that might be 

captured by the Voter Assistance Ban. See, e.g., Fla. Stat. §§ 104.041, 104.061(1). 

Crucially, the Challenged Provisions do not operate in a vacuum—they 

instead build upon each other, cumulatively burdening Florida voters. The time 

spent obtaining postage, for example, makes it more likely that a voter will mail 

their ballot later and, therefore, that their ballot will be rejected for arriving late. 

Likewise, voters unable to obtain postage are more likely to need assistance and

without such assistance are at risk that their ballot may not arrive on time. 

Finally, even if this Court determines that any of the Challenged Provisions 

impose minimal burdens on the right to vote, it must still consider whether 

Florida’s interests are “sufficiently weighty” to impose those burdens. Norman, 

502 U.S. at 288–89. There are no state interests sufficient to outweigh these

increasing burdens on Floridians’ voting rights, particularly during a pandemic. 

2. Plaintiffs are likely to succeed on their claim that the Election Day 

Receipt Deadline violates the Due Process Clause.

The Receipt Deadline deprives Florida voters, including Plaintiffs, of their 

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liberty interest in voting without adequate procedural safeguards. The Due Process 

Clause prohibits the states from depriving “any person of . . . liberty . . . without 

due process of law.” U.S. Const. amend. XIV, § 1. Which protections are due 

requires a careful analysis of the importance of the rights and other interests at 

stake. See Mathews v. Eldridge, 424 U.S. 319, 334–35 (1976). In determining 

whether the state has provided adequate process, courts must consider (1) “the 

private interest” affected, (2) “the risk of an erroneous deprivation” of that interest 

through current procedures, and (3) the “probable value . . . of additional or 

substitute procedures,” accounting for the “administrative burdens” such 

procedures would entail. Grayden v. Rhodes, 345 F.3d 1225, 1233 (11th Cir. 2003) 

(quoting Mathews, 424 U.S. at 335). 

These factors weigh heavily in Plaintiffs’ favor. First, the nature of the

private interest here—voting and having one’s ballot counted—is extraordinarily

important. See Reynolds v. Sims, 377 U.S. 533, 555 n.29 (1964) (“There is more to 

the right to vote than the right to mark a piece of paper and drop it in a box or the 

right to pull a lever in a voting booth. The right to vote includes the right to have 

the ballot counted.”) (citation and quotation omitted). This interest extends to mail

voting, which Florida has statutorily conferred upon its citizens. See, e.g., Martin v. 

Kemp, 341 F. Supp. 3d 1326, 1338 (N.D. Ga. 2018), appeal dismissed sub 

nom. Martin v. Sec’y of State of Ga., No. 18-14503-GG, 2018 WL 7139247 (11th 

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Cir. Dec. 11, 2018); Saucedo v. Gardner, 335 F. Supp. 3d 202, 217 (D.N.H. 2018).

Second, the risk of erroneous deprivation from the Receipt Deadline is 

extraordinarily high. This deprivation is neither hypothetical nor speculative; 

public data from Florida establishes that thousands of voters’ mail ballots have 

been rejected every election cycle, including more than 15,000 ballots in the 2018 

General Election and nearly 9,000 in the March PPP. Supra at 8, 12. The “cutoff” 

to mail a ballot is a moving target that varies between counties and elections, and 

depends on USPS’s state, supra at 10, making it patently unreliable and confusing. 

“To disenfranchise citizens whose only error was relying on poll-worker 

instructions appears to us to be fundamentally unfair.” Hunter v. Hamilton Cty. Bd. 

of Elections, 635 F.3d 219, 243 (6th Cir. 2011).

Florida’s existing procedures therefore deprive voters of having their ballot 

counted because (1) many voters cannot accurately ascertain when they must 

return their ballot by mail, (2) even voters who can ascertain this “cutoff” are 

disenfranchised if their ballots do not arrive at the Supervisor’s office on time, 

through no fault of their own, and, most importantly, (3) a substantial number of 

voters do not receive their mail ballots in time to return them by the “cutoff,”

depriving them of the opportunity to vote, particularly during the pandemic where 

in-person voting may not be a safe option. Supra at 4, 8-12; see also NEOCH, 696 

F.3d at 591 (“[T]he unreasonableness and fundamental unfairness of disqualifying 

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wrong-precinct ballots caused by poll-worker error” is a “likely constitutional 

violation[ ] . . . requiring injunctive relief.”). 

Florida’s current procedures are neither a fair nor reliable way to administer 

voting by mail. A state’s elections system, “the specifics of which are not explicitly 

made known to potential voters, that leaves potential voters in the dark as to its 

effect on a voter’s [ability to vote] and that fails to give voters a fair opportunity to 

[participate], is fundamentally unfair and violative of the Due Process Clause of 

the Fourteenth Amendment.” Fla. State Conference of N.A.A.C.P. v. Browning, 

522 F.3d 1153, 1183 (11th Cir. 2008) (Barkett, J., concurring and dissenting in 

part). Worse still, once a voter’s ballot arrives after the Receipt Deadline and their 

liberty interest is deprived, “the election procedures do not give some form of postdeprivation notice to the affected individual so that any defect in eligibility can be 

cured and the individual is not continually and repeatedly denied so fundamental a 

right.” Raetzel v. Parks/Bellemont Absentee Election Bd., 762 F. Supp. 1354, 1358 

(D. Ariz. 1990); see supra at 11 n.2 (many counties do not notify voters about late 

ballots).

Third, the value of additional or substitute procedural safeguards to ensure 

that Florida’s mail voters’ votes are counted is readily apparent. A substitute 

procedure⸺requiring Florida to count vote-by-mail ballots that are mailed on or 

before Election Day and received within ten days thereafter solves the inequities 

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inherent in Florida’s Receipt Deadline. A postmark deadline not only offers 

Florida voters a reliable date by which they must cast their ballots, it also ensures 

that voters who receive their ballots just a few days before Election Day are able to 

engage in the franchise. See Ex. 1 ¶124 (showing 99% of late ballots in the March 

PPP arrived by Day 10). Requiring Florida to count these ballots imposes little 

administrative burden on the state. Supra at 19. 

Having conferred the right to vote by mail, Florida must establish adequate 

procedures to ensure that voters have a reliable, fair, and effective method to cast 

their ballots. Cf. Saucedo, 335 F. Supp. 3d at 217. Because Florida’s Receipt 

Deadline is inadequate in all those respects, and Florida can institute a substitute 

procedure which would protect voters’ rights with minimal burden to the state, the 

Receipt Deadline violates Florida voters’ procedural due process rights.

3. Plaintiffs are likely to succeed on their claim that the Postage 

Requirement violates the Twenty-Fourth and Fourteenth 

Amendments. 

Plaintiffs are likely to succeed on their Twenty-Fourth Amendment claim. 

That Amendment provides that the right to vote “shall not be denied or abridged by 

the United States or any state by reason of failure to pay any poll tax or other tax,” 

see U.S. Const. amend. XXIV, § 1; see also Harman v. Forssenius, 380 U.S. 528 

(1965); Jones et al. v. DeSantis et al., No. 4:19-cv-00300, slip op. at 73 (N.D. Fla. 

May 24, 2020) (holding the Twenty-Fourth Amendment “applies not just to any 

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poll tax but also to any ‘other tax.’”). Similarly, the Fourteenth Amendment 

prohibits the imposition of fees on the franchise. See Harper v. Va. State Bd. of 

Elect., 383 U.S. 663, 666 (1966). “[V]oting cannot hinge on ability to pay . . . for it 

is a ‘fundamental political right . . . preservative of all rights.’” M.L.B. v. S.L.B., 

519 U.S. 102, 124 n.14 (1996) (quoting Yick Wo v. Hopkins, 118 U.S. 356, 370 

(1886)). This analysis is the same regardless of whether a voter is able to pay or 

not. See Harper, 383 U.S. at 668 (finding imposition of a fee unconstitutional 

“whether the citizen, otherwise qualified to vote, has $1.50 in his pocket or nothing 

at all”).

Florida does what Harper prohibits: condition casting a mail ballot on 

paying a fee (i.e., postage). Unlike incidental voting costs, such as the gas money 

used to reach a polling place, Defendants represent that postage is required to cast 

a ballot by mail. See supra at 5-6. 

As this Court has recognized, fees imposed in the voting process violate the 

Twenty-Fourth Amendment if they otherwise function as taxes, see Jones, at *73, 

and courts must use a “functional approach” to determining whether a fee is a 

“tax,” see id. at *73-74 (citing Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 

564-66 (2012)). The “essential feature of any tax” is that “i[t] produces at least 

some revenue for the Government.” Id. USPS stamps are, of course, one of the

primary streams of revenue for the Postal Service, raising billions of dollars for the 

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agency each year. See Ex. 55; see also Ex. 56 (“The Postal Service relies on the 

sale of postal products . . . to fund our operations”). While such a fee is 

unconstitutional under any circumstance, during this pandemic, where in-person 

voting is dangerous to voters’ health and safety, paying for postage has become a 

prerequisite for voting. Florida voters—and particularly low-income, disabled, or 

homebound voters due to COVID-19⸺are forced to pay “a price for the privilege 

of exercising the franchise.” Harman, 380 U.S. at 539. The Postage Requirement 

therefore violates both the Twenty-Fourth and Fourteenth Amendments. 

4. Plaintiffs are likely to succeed on their claim that the Voter 

Assistance Ban violates Plaintiffs’ First Amendment rights. 

The Voter Assistance Ban prevents Plaintiffs from engaging in electionrelated speech and associational activities aimed at encouraging voters to 

participate in the political process—activity protected by the First Amendment. See 

Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182, 186 (1999); Meyer 

v. Grant, 486 U.S. 414, 421 (1988). Cases involving “limitation[s] on political 

expression [are] subject to exacting scrutiny.” Meyer, 486 U.S. at 420. Just as the 

Supreme Court struck down as an unconstitutional restriction of political 

expression Colorado’s criminalization of paying circulators to collect petition 

signatures, see id. at 428, Florida cannot criminalize paying trained individuals to 

help voters return their ballots. This burdens speech by “limit[ing] the number of 

voices who will convey [Priorities USA and Alianza’s] message,” and “the size of 

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the audience they can reach.” Id. at 422-23. Given the current crisis, the form of 

speech that Priorities USA and Alianza seek to engage in is “the most effective, 

fundamental, and [likely] economical avenue of political discourse,” yet it is 

directly foreclosed by the Ban. Id. at 424; see Ex. 16 ¶12 (“[T]hese efforts are 

crucial for engaging voters in the political process [and particularly needed for]

voters in historically marginalized communities.”); Ex. 14 ¶12; Ex. 15 ¶14-15.

The Ban is also an unconstitutional restriction on Plaintiffs’ right to 

associate. First Amendment rights “include the right to band together for the 

advancement of political beliefs.” Hadnott v. Amos, 394 U.S. 358, 364 (1969). An 

organization’s “attempt to broaden the base of public participation in and support 

for its activities is conduct undeniably central to the exercise of the right of 

association.” Tashjian v. Republican Party of Conn., 479 U.S. 208, 214 (1986); see 

also Williams v. Rhodes, 393 U.S. 23, 30 (1968). In Tashjian, the Supreme Court 

invalidated a prohibition that “limit[ed] the Party’s associational opportunities at 

the crucial juncture at which the appeal to common principles may be translated 

into concerted action, and hence to political power in the community.” 479 U.S. at 

216.

Similarly, the Voter Assistance Ban limits Plaintiffs’ associational 

opportunities by barring them from deploying trained, paid professionals to assist 

their constituents in returning—and reminding voters to sign—their ballots. These 

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include Plaintiffs who “wish to speak and act collectively with others, implicating 

the First Amendment right of association. More importantly, the plaintiffs wish to 

assist others with the process of [participating in the franchise] and thus, in due 

course, voting.” League of Women Voters of Fla. v. Browning, 863 F. Supp. 2d 

1155, 1167 (N.D. 2012) (Hinkle, J). This Court has recognized that soliciting and 

assisting with voter registration applications is “core First Amendment activity.” 

Id. at 1158. The First Amendment surely extends to the endpoint of those

applications—helping voters with their ballots. See Priorities USA et al. v. Nessel, 

No. 4:19-cv-1334, ECF No. 59 at *28-32 (E.D. Mich. May 22, 2020) (holding that 

assisting voters with their absentee ballots is protected First Amendment activity).

5. Plaintiffs are likely to succeed on their claim that the Voter 

Assistance Ban is pre-empted by Section 208 of the Voting Rights 

Act. 

The Voter Assistance Ban conflicts with Section 208 of the Voting Rights 

Act (VRA) by restricting certain voters’ ability to select the person of their choice 

to help them vote. Conflict preemption occurs (1) when it is impossible to comply 

with state and federal law, or (2) “where state law stands as an obstacle to the 

accomplishment and execution of the full purposes and objectives of Congress.” 

Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 98, 109 (1992) (internal 

quotation marks omitted). Both are true here.

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Section 208 states “[a]ny voter who requires assistance to vote by reason of 

blindness, disability, or inability to read or write may be given assistance by a 

person of the voter’s choice.” 52 U.S.C.A. § 10508. It permits only two limitations 

on that choice: voters cannot select (1) their employer or its agent or (2) an officer 

or agent of their union. Id. But Florida’s Ban adds another limitation: a voter

cannot choose someone to assist them who is receiving any compensation or “other 

benefit” for doing so, such as campaign staff or paid community organizers. Fla. 

Stat. § 104.0616(2). Because the VRA promises voters freedom of choice and the 

Ban restricts that choice, the laws cannot coexist. 

Florida’s Ban would not be the first voter-assistance restriction the VRA

preempts. See, e.g., OCA-Greater Houston v. Texas, 867 F.3d 604, 614-15 (5th 

Cir. 2017) (holding VRA preempted Texas’s requirement that an assistor be 

registered in the voter’s county because it “impermissibly narrows the right 

guaranteed by Section 208”); Ex. 57, Minnesota v. Thao, 62-CR-18-827 (Minn. 

Dist. Ct. Oct. 23, 2018) (holding Section 208 preempts Minnesota’s prohibition on 

candidates assisting voters).

Section 208 gives voters the unencumbered right to select who will assist 

them in all actions necessary to vote. The VRA is clear:

The terms “vote” or “voting” shall include all action 

necessary to make a vote effective . . . including, but not 

limited to, registration, . . . or other action required by 

law prerequisite to voting, casting a ballot, and having 

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such ballot counted properly and included in the 

appropriate totals of votes cast.

52 U.S.C. § 10310(c)(1). For mail voters, returning a ballot to an elections office 

for counting is by definition “action necessary to make a vote effective.” Id. The

Fifth Circuit explained that “‘[t]o vote,’ therefore plainly contemplates more than 

the mechanical act of filling out the ballot sheet . . . the definition lists ‘casting a 

ballot’ as only one example in a nonexhaustive list of actions that qualify as 

voting.” OCA, 867 F.3d at 615. 

Moreover, the legislative history makes Congress’s intent clear. In its report 

on the VRA, the Senate Judiciary Committee found that state restrictions that 

“deny the assistance at some stages of the voting process during which assistance 

was needed” violate Section 208. S. Rep. No. 97-417, at 63 (1982). Section 208 

therefore preempts the Voter Assistance Ban because it prohibits voters who need 

help from receiving assistance from the person of their choice at a crucial stage in

the voting process. 

The Ban also conflicts with Section 208 because it poses an obstacle to 

accomplishing Section 208’s purpose and objective. In Minnesota v. Thao, the 

court explained that “the purpose of [the VRA] was to create as few barriers as 

possible to voting, with the understanding that [voters] are fully capable of 

determining who should serve as their trustworthy assistant.” Ex. 57 at 4. The court 

found “the [State’s] prohibition of a candidate as a possible trusted assistant acted 

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as an obstacle to the accomplishment of the full purpose and objective of 

Congress.” Id. at 5. 

By prohibiting voters covered under Section 208 from choosing whomever 

they want to assist them in completing or returning their ballots, the Ban creates a 

barrier to Section 208’s purpose of ensuring voters can receive assistance from of a 

person of their choice. The Ban is therefore invalid.

B. Plaintiffs will suffer irreparable injury absent an injunction.

The Challenged Provisions inflict several irreparable harms on Plaintiffs. 

First, they put the voter Plaintiffs and countless others at great risk of 

disenfranchisement, which constitutes irreparable injury. If “constitutional rights 

are threatened or impaired, irreparable injury is presumed.” Obama for Am. v. 

Husted, 697 F.3d 423, 436 (6th Cir. 2012); see also Elrod v. Burns, 427 U.S. 347, 

373 (1976); Detzner, 314 F. Supp. at 1223. Once the election comes and goes, 

“there can be no do-over and no redress.” LOWV NC, 769 F.3d at 247.

Second, the Challenged Provisions restrict the organizational Plaintiffs from 

participating in election-related activities, which courts routinely recognize as 

irreparable harm. See Browning, 863 F. Supp. 2d at 1167 (holding plaintiffs’ lost 

opportunity to register voters was irreparable harm) (Hinkle, J.); Project Vote, Inc. 

v. Kemp, 208 F. Supp. 3d 1320, 1350 (N.D. Ga. 2016). 

Third, if the Challenged Provisions are in effect, organizational Plaintiffs

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must divert resources to help their members and constituencies overcome the 

burdens imposed by the law and to effectuate their missions. See Ex. 16 ¶¶9-11; 

Ex. 15 ¶¶11-13; Ex. 17 ¶¶10-11. This, too, constitutes irreparable harm. See, e.g., 

Ga. Coal. for People’s Agenda, Inc. v. Kemp, 347 F. Supp. 3d 1251 1268 (N.D. 

Ga. 2018) (finding irreparable harm where “[p]laintiffs’ organizational missions . . 

. will continue to be frustrated and organization resources will be diverted to 

[address the challenged law]” . . . “[s]uch mobilization opportunities cannot be 

remedied once lost”). 

C. The balance of the equities and public interest favor an injunction.

The balance of the equities favors Plaintiffs. While Plaintiffs face

infringements of core constitutional rights, Defendants face, at most, 

administrative inconveniences. But “administrative convenience” cannot justify 

practices that impinge upon fundamental rights. Taylor, 419 U.S. at 535; Kemp, 

347 F. Supp. 3d at 1268 (holding increased administrative burden on election 

officials “minimal compared to the potential loss of a right to vote”). An injunction 

is in the public interest because “[t]he vindication of constitutional rights . . . 

serve[s] the public interest almost by definition.” Browning, 863 F. Supp. 2d at

1167 (Hinkle, J.); see also Detzner, 314 F. Supp. at 1224 (“[A]llowing for easier 

and more accessible voting for all segments of society serves the public interest.”). 

Moreover, the Challenged Provisions contribute to public health risks, encouraging

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voters to venture out into the world and interact face-to-face with people—despite 

warnings from public health officials. That risk of danger to public health is 

substantial, imminent, and ongoing. Issuing an injunction would give Florida 

voters confidence that their right to vote is preserved even in these unprecedented 

times, and that they will be able to safely and successfully exercise the franchise, 

without undue burden. 

IV. CONCLUSION

WHEREFORE, Plaintiffs respectfully request that this Court grant 

Plaintiffs’ motion for preliminary injunction.

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LOCAL RULE 7.1(F) CERTIFICATION

Counsel for Plaintiffs, Frederick Wermuth, Esquire, certifies that this 

memorandum contains 7995 words, excluding the table of contents, table of 

authorities, and the certificate of service.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on May 27, 2020 I electronically filed the 

foregoing with the Clerk of the Court by using the CM/ECF system, which will 

send a notice of electronic filing to all counsel of record.

Dated: May 27, 2020 By: /s/ Frederick S. Wermuth

Frederick S. Wermuth

Florida Bar No.: 0184111

KING, BLACKWELL, ZEHNDER

& WERMUTH, P.A.

P.O. Box 1631

Orlando, FL 32802-1631

Telephone: (407) 422-2472

Facsimile: (407) 648-0161

fwermuth@kbzwlaw.com 

Marc E. Elias

John Devaney

Amanda R. Callais*

Zachary J. Newkirk*

Christina A. Ford

PERKINS COIE LLP

700 Thirteenth St., N.W., Suite 800

Washington, D.C. 20005-3960

Telephone: (202) 654-6200

Facsimile: (202) 654-9959

melias@perkinscoie.com

Case 4:20-cv-00236-RH-MJF Document 90 Filed 05/27/20 Page 41 of 43
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jdevaney@perkinscoie.com

acallais@perkinscoie.com

znewkirk@perkinscoie.com

christinaford@perkinscoie.com

Lilian Timmermann**

PERKINS COIE LLP

1900 Sixteenth Street, Suite 1400

Denver, CO 80202

Telephone: (303) 291-2300

Facsimile: (303) 291-2400

ltimmermann@perkinscoie.com

Counsel for the Plaintiffs

* Pro Hac Vice motion pending

** Pro Hac Vice motion 

forthcoming

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