Page 1 of 33

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CASE NO.: 1:22-cv-23366

FLORIDA DEMOCRATIC PARTY, 

JANE W. MOSCOWITZ, and JUANCARLOS “JC” PLANAS,

Plaintiffs,

vs.

CORD BYRD, in his official capacity 

as Florida Secretary of State; and 

ASHLEY MOODY, in her official 

capacity as Florida Attorney General,

Defendants.

________________________________/

COMPLAINT FOR INJUNCTIVE

AND DECLARATORY RELIEF

Plaintiffs, the Florida Democratic Party, Jane W. Moscowitz, and Juan-Carlos “JC” Planas, 

through their counsel, sue Defendant Cord Byrd, in his official capacity as Florida Secretary of State,

and Defendant Ashley Moody, in her official capacity as Florida Attorney General. In support, 

Plaintiffs state as follows:

INTRODUCTION

1. This suit seeks injunctive and declaratory relief because the newly amended Fla. Stat. 

§ 101.5614(8) chills core First Amendment activity by vaguely and overbroadly threatening severe 

criminal sanctions against any authorized person who observes a county canvassing board during 

the canvassing of an election for discussing things they observe at an open public meeting.

2. Political parties, campaigns, and other organizations routinely send people—often 

volunteers—to county canvassing boards to observe the canvassing of elections. These volunteers 

Case 1:22-cv-23366-XXXX Document 1 Entered on FLSD Docket 10/17/2022 Page 1 of 33
Page 2 of 33

have traditionally reported back to their volunteer groups engaged in voter protection or election 

oversight, political parties, campaigns, or organizations. These reports are integral to the

prevention of wrongful voter disenfranchisement and to ensure that elections are run freely, fairly, 

and in accordance with law.

3. The problem arises from an amendment, earlier this year, of Fla. Stat. § 101.5614(8), 

making it a felony for any person “authorized to observe, review, or inspect ballot materials or observe 

canvassing” to “release any information about votes cast for or against any candidate or ballot 

measure or any results of any election before the closing of the polls in that county.”

4. It is wholly unclear what “release” means in this context. Additionally, the 

criminalization of the release of “any information” about votes cast is both vague and overbroad.

5. This could expose volunteer members of the public to criminal prosecution for simply 

exercising their First Amendment rights. Moreover, a political campaign seeking to file a lawsuit for 

redress against a county canvassing board for misapplication of the voter intent standards—relatively 

routine and appropriate election-related activity— could face similar prosecution for simply 

advocating for the proper application of the law.

6. During the 2022 Primary Election, at least one lawyer for a supervisor of elections in 

Florida gave a public warning about the language in the newly amended Section 101.5614(8) to all 

observers at every canvassing board meeting. This created a chilling effect where volunteers were not 

only unwilling to share information about what they had observed, but also expressed discomfort with 

continuing to volunteer to observe the work of county canvassing boards.

7. Seeking to minimize the uncertainty, the Florida Democratic Party sought an advisory 

opinion on an expedited basis from the Florida Secretary of State, Division of Elections, shortly after 

the 2022 Primary Election was certified. Yet, to date, the Division of Elections has not provided any 

Case 1:22-cv-23366-XXXX Document 1 Entered on FLSD Docket 10/17/2022 Page 2 of 33
Page 3 of 33

response to that request.

8. As a result, the Florida Democratic Party can only proceed with its canvassing board 

oversight program during the 2022 General Election and in all future elections, under threat of 

criminal sanctions, despite the fact that the party has operated such a program in counties across the 

State of Florida during elections for many years. Other organizations, including the Republican Party 

of Florida, have also operated programs to monitor the conduct of county canvassing boards. 

9. If the Florida Democratic Party is unable to run a canvassing board oversight 

operation, it will be unable to ensure that the canvassing boards properly oversee elections. Moreover, 

the party cannot subject its volunteers to potential criminal liability just for reporting what takes place 

at a public meeting of a county canvassing board.

JURISDICTION AND VENUE

10. This action arises under the First and Fourteenth Amendments to the United States 

Constitution, and 42 U.S.C. §§ 1983 and 1988. This Court has subject-matter jurisdiction under 28 

U.S.C. §§ 1331 and 1343. 

11. This Court has jurisdiction pursuant to 28 U.S.C. §§ 2201 and 2202, and Rules 57 and 

65 of the Federal Rules of Civil Procedure. 

12. Venue is proper in the Southern District of Florida under 28 U.S.C. § 1391(b) because 

a substantial part of the events or omissions giving rise to the claims have occurred or will occur in 

the Southern District of Florida.

13. Defendants are not entitled to Florida’s home venue privilege. The home venue 

privilege “is merely a state procedural rule, it does not bind a federal court. Rather, federal law 

controls the question of proper venue.” Young v. Corizon LLC, 4:18-CV-444-RH/MJF, 2019 WL 

2587813, at *4 (N.D. Fla. May 21, 2019), report and recommendation adopted, 4:18CV444-RHCase 1:22-cv-23366-XXXX Document 1 Entered on FLSD Docket 10/17/2022 Page 3 of 33
Page 4 of 33

MJF, 2019 WL 2583156 (N.D. Fla. June 24, 2019). Additionally, the home venue privilege does not 

apply, because, inter alia, Plaintiffs’ constitutional rights have already been violated by state action 

in the county and district where this suit is instituted, and they are in real and imminent danger of 

continued invasion in the county and district where this suit is instituted. See Scott v. Thompson, 326 

So. 3d 123, 126–27 (Fla. 1st DCA 2021); Jacksonville Elec. Auth. v. Clay Cnty. Util. Auth., 802 So. 

2d 1190, 1192–93 (Fla. 1st DCA 2002); Barr v. Fla. Bd. of Regents, 644 So. 2d 333, 335–36 (Fla. 1st 

DCA 1994); Graham v. Vann, 394 So. 2d 178, 180 (Fla. 1st DCA 1981); Dep’t of Transp. v. 

Morehouse, 350 So. 2d 529, 533 (Fla. 3d DCA 1977).

14. All conditions precedent to bringing this action, if any, have occurred, have been 

waived, or would be a useless act and are accordingly waived.

15. Plaintiffs are entitled to recover reasonable attorneys’ fees and costs under, inter 

alia, 42 U.S.C. § 1988 for proceedings in vindication of civil rights.

PARTIES

16. Plaintiffs have standing to pursue this pre-enforcement action as to the newly amended 

Fla. Stat. § 101.5614(8). The newly amended statute creates an Article III injury because Plaintiffs 

intend to engage in a course of conduct arguably affected with a constitutional interest, but proscribed 

by a statute, and there exists a credible threat of prosecution since Plaintiffs’ alleged conduct is at least 

arguably forbidden by the pertinent law. See Dream Defs. v. DeSantis, 553 F. Supp. 3d 1052, 1076–

77 (N.D. Fla. 2021).

Florida Democratic Party

17. Plaintiff, Florida Democratic Party (sometimes referred to as the “FDP”) is the 

official Democratic Party organization for the State of Florida. The FDP is a political organization 

governed by Florida law. Fla. Stat. § 103.091. It is permitted to observe meetings of county 

Case 1:22-cv-23366-XXXX Document 1 Entered on FLSD Docket 10/17/2022 Page 4 of 33
Page 5 of 33

canvassing boards. See, e.g., Fla. Stat. § 102.141. The FDP is properly positioned to “assert its 

own rights as a political party and also the rights of its candidates and voters.” Fla. Democratic 

Party v. Hood, 342 F. Supp. 2d 1073, 1078-79 (N.D. Fla. 2004).

18. The FDP operates a voter protection team, which serves as a bulwark against voter 

suppression across the State of Florida by working to ensure that every eligible voter is entitled to cast 

a ballot and have that ballot counted. Exhibit A, Declaration of Sam Koplewicz at ¶ 5.

19. The FDP Voter Protection Director works closely with volunteer voter protection 

team members across the State of Florida, most of whom are attorneys, so that they can observe the 

election for the benefit of the FDP and Democratic Party candidates. Id. at ¶ 6. Among other things, 

this includes ensuring that voter protection team members observe as many county canvassing board 

meetings as possible, in as many counties as possible, to ensure that the canvassing boards are 

administering the election properly and in accordance with law. Id. at ¶ 7.

20. The only real way for the FDP and Democratic Party candidates to ensure that 

canvassing boards are administering the election properly and in accordance with law is to have voter 

protection team members present at canvassing board meetings, so that they can observe the 

proceedings and report those observations back to the voter protection team. Id. at ¶ 9. This free flow 

of communication enables the FDP and Democratic Party candidates to determine how to best handle 

incidents that may occur during the canvassing of the election. Id.

21. For example, if a canvassing board were to make a decision about the validity of a 

cast ballot which is, or arguably is, in violation of law, the FDP will only become aware of that 

decision if the observer reports it, freely and with sufficient detail. Id. at ¶ 10. How the FDP and 

Democratic Party candidates react to such violations of law, or arguable violations of law, is 

Case 1:22-cv-23366-XXXX Document 1 Entered on FLSD Docket 10/17/2022 Page 5 of 33
Page 6 of 33

necessarily impacted by the amount of detail in the report, as well as the frequency of similar reports 

both within a single county and across multiple counties. Id.

22. It is only through the free flow of communication between observers and the voter 

protection team that the FDP and Democratic Party candidates can meaningfully determine whether 

and how to instruct observers to object to certain decisions of a canvassing board. Id. at ¶ 11.

23. Additionally, it is only through the free flow of communication between observers 

and the voter protection team that the FDP and Democratic Party candidates can meaningfully 

determine whether to file a lawsuit to seek redress for decisions of a canvassing board with which the 

FDP or a candidate disagrees. Id. at ¶ 12.

24. The recent amendment to Fla. Stat. § 101.5614(8) has caused serious disruption and 

harm to the FDP’s voter protection program during the 2022 Primary Election and will continue to

cause disruption during the 2022 General Election and in other elections in the future, unless 

remedied. Id. at ¶¶ 14-15, 19-21.

25. As a result of the amendment to Fla. Stat. § 101.5614(8) and its vague prohibitions 

and attendant criminal penalties, the FDP has notified voter protection team members across the State

of Florida about the statutory amendment during volunteer training sessions, prior to those volunteers

attending canvassing board meetings. Id. at ¶ 18. 

26. The FDP intends to continue to have volunteers attend canvassing board meetings, 

but it appears increasingly certain that the utility of such observation by volunteers will be reduced. 

Id. at ¶ 21.

27. Additionally, the FDP’s Voter Protection Director is deeply worried that he may 

become a subject of criminal investigation or prosecution, simply for discussing with canvasing board 

observers what they observed during their observation of canvassing board meetings to ensure that 

Case 1:22-cv-23366-XXXX Document 1 Entered on FLSD Docket 10/17/2022 Page 6 of 33
Page 7 of 33

the canvassing board meetings are run properly and in accordance with law. Id. at ¶ 22. This is

especially true since he interacts with volunteers in many counties across Florida, and Fla. Stat. § 

101.5614(8) may be subject to different, uncertain interpretations in different counties. Id.

Jane W. Moscowitz

28. Plaintiff, Jane W. Moscowitz, is a registered voter in Miami-Dade County, Florida,

and a member of the FDP. Exhibit B, Declaration of Jane W. Moscowitz at ¶ 3. She is a member of 

The Florida Bar, having first been admitted to practice law in Florida on September 15, 1986. Id. at ¶ 

4. She is admitted to practice in several federal courts, including the United States District Court for 

the Southern District of Florida, the United States Court of Appeals for the Eleventh Circuit, and the 

United States Supreme Court. Id. She obtained her law degree from Harvard Law School in 1977. Id.

29. Moscowitz concentrates her legal practice in the areas of federal and state criminal 

defense and business litigation. Id. Earlier in her career, she was a federal prosecutor for almost ten 

years. Id. Her last government position was as Senior Litigation Counsel in the United States 

Attorney’s Office for the Southern District of Florida. Id.

30. Moscowitz believes very strongly in protecting the right to vote and works hard to 

combat voter suppression in Miami-Dade County and across the State of Florida. Id. at ¶ 5. 

Accordingly, she is a volunteer attorney member of the FDP voter protection team. Id. at ¶ 6.

31. Moscowitz is also a co-chair of the Miami-Dade County Democratic Executive 

Committee (“Miami-Dade DEC”) voter protection committee, which is comprised entirely of 

volunteers, nearly all of whom are attorneys. Id. at ¶ 7. Every member of the Miami-Dade DEC voter 

protection committee is also a member of the FDP voter protection team. Id. at ¶ 8. During major 

elections, the Miami-Dade DEC voter protection committee members serve in various capacities as 

Case 1:22-cv-23366-XXXX Document 1 Entered on FLSD Docket 10/17/2022 Page 7 of 33
Page 8 of 33

members of the FDP voter protection team. Id. One such capacity is attending and observing county 

canvassing board meetings. Id.

32. For many years and election cycles, Moscowitz has served as a volunteer member of 

the FDP voter protection team, in various capacities. Id. at ¶ 9. In 2018, she attended meetings of the 

county canvassing board on behalf of Democratic Party candidates involved in statewide recounts. 

Id.

33. Moscowitz volunteered to attend and observe county canvassing board meetings in 

2022. Id. at ¶ 11. As a result, she attended multiple county canvassing board meetings during the 2022 

Primary Election. Id. She understood her task at the canvassing board to be to observe the proceedings 

and to object to any acts or decisions of the canvassing board that she believed were not in accordance 

with the law and also to report any irregularities back to the rest of the voter protection team and to 

FDP, so that corrections to those irregularities could be proposed and enacted. Id.

34. Moscowitz has reviewed the current version of Fla. Stat. § 101.5614(8). Id. at ¶ 15. 

Despite her background, she does not know, and cannot predict, what Fla. Stat. § 101.5614(8) permits, 

nor what it prohibits and criminalizes. Id. at ¶ 16.

35. As a result of the amendment to Fla. Stat. § 101.5614(8) and its vague prohibitions 

and attendant criminal penalties, Moscowitz refrained from sharing with the voter protection team all

the information about what she observed at canvassing board meetings. Id. at ¶ 17.

36. Moscowitz intends to continue to volunteer for the FDP voter protection team by 

attending and observing county canvassing board meetings during the upcoming 2022 General 

Election and in other future elections. Id. at ¶ 19. However, as a result of the recently amended Fla. 

Stat. § 101.5614(8), she is deeply worried that she may inadvertently become a subject of criminal 

investigation or prosecution, simply for discussing what she observed during her volunteer 

Case 1:22-cv-23366-XXXX Document 1 Entered on FLSD Docket 10/17/2022 Page 8 of 33
Page 9 of 33

observation of canvassing board meetings to ensure that the canvassing board meetings are run 

properly and in accordance with law. Id.

JC Planas

37. Plaintiff, Juan-Carlos “JC” Planas, is a registered voter in Miami-Dade County, 

Florida, and a member of the FDP. Exhibit C, Declaration of Juan-Carlos “JC” Planas at ¶ 3. He is a 

member of The Florida Bar, having first been admitted to practice law in Florida on September 29, 

1998. Id. at ¶ 4. He obtained his law degree from St. Thomas University School of Law in 1998. Id.

38. Planas concentrates his legal practice in the areas of litigation and election law, 

including, among other things, court proceedings, actions before the Florida Election Commission, 

and other matters of representation of candidates for elected office. Id. His legal practice has often 

required him to appear at county canvassing board meetings on behalf of his candidate clients. Id.

39. Planas teaches election law as an adjunct professor of law at St. Thomas University 

School of Law, and has done so since the Spring of 2016. Id. at ¶ 5. Prior to that, he taught state and 

local government law at St. Thomas University School of Law in the Fall of 2015. Id.

40. Between 2002 and 2010, Planas represented District 115 in the Florida House of 

Representatives, as a registered member of the Republican Party of Florida (“RPOF”). Id. at ¶ 6.

41. Planas remained a registered member of the RPOF until November of 2019. Id. at 

¶ 7. When he was a Republican, Planas served in election and canvassing board oversight as both 

a volunteer and as a paid, retained attorney acting on behalf of Republican Party organizations and 

candidates for elected office. Id. at ¶ 8.

42. In 2020, Planas became a registered Democrat. Id. at ¶ 7. Since becoming a 

Democrat, he has continued to appear before canvassing boards, only now he does so on behalf of 

the FDP and Democratic Party candidates. Id. at ¶ 9. In some capacities, he has appeared as a

Case 1:22-cv-23366-XXXX Document 1 Entered on FLSD Docket 10/17/2022 Page 9 of 33
Page 10 of 33

volunteer, and in other capacities, he has appeared as a paid, retained attorney on behalf of his

candidate clients. Id.

43. Planas believes very strongly in protecting the right to vote and works hard to 

combat voter suppression in Miami-Dade County and across the State of Florida. Id. at ¶ 10. 

Accordingly, he is a volunteer attorney member of the FDP’s voter protection team. Id. at ¶ 11.

44. Planas’s task at the canvassing board is, and has long been, to observe the proceedings 

and to object to any acts or decisions of the canvassing board that he believes are not in accordance 

with the law and also to report any irregularities back to the FDP voter protection team or to his 

candidate clients, as the case may be, so that corrections to those irregularities may be proposed and 

enacted. Id. at ¶ 13.

45. Planas attended and observed multiple canvassing board meetings during the 2022 

Primary Election, in both volunteer and non-volunteer capacities. Id. at ¶ 14.

46. Planas has reviewed the current version of Fla. Stat. § 101.5614(8). Id. at ¶ 18. Despite 

his background, he does not know, and cannot predict, what Fla. Stat. § 101.5614(8) permits, nor 

what it prohibits and criminalizes. Id. at ¶ 19.

47. As a result of the amendment to Fla. Stat. § 101.5614(8) and its vague prohibitions 

and attendant criminal penalties, Planas has been scared to share with anyone else—including the 

FDP voter protection team and his candidate clients—all the information about what he observed at 

canvassing board meetings. Id. at ¶ 20.

48. The inability to freely communicate also burdens Planas’s law practice because his 

financial livelihood requires the free exchange of information with his clients, including candidates 

for elected office. Id. at ¶ 23.

Case 1:22-cv-23366-XXXX Document 1 Entered on FLSD Docket 10/17/2022 Page 10 of 33
Page 11 of 33

49. Planas intends to appear at, and observe, canvassing board meetings, both as a 

volunteer for the FDP voter protection team and as a paid, retained attorney on behalf of his candidate 

clients, during the upcoming 2022 General Election and in other future elections. Id. at ¶ 24. However, 

he is deeply worried that he may become a subject of criminal investigation or prosecution, simply 

for discussing what he observed during his observation of canvassing board meetings to ensure that 

the canvassing board meetings are run properly and in accordance with law. Id.

Secretary of State Cord Byrd

50. Defendant Cord Byrd is Florida’s Secretary of State. He is sued in his official capacity.

Secretary Byrd is a person within the meaning of 42 U.S.C. § 1983 and acts under color of state law.

51. Secretary Byrd is Florida’s chief elections officer. Fla. Stat. § 97.012. As head of the 

Department of State, Secretary Byrd is responsible for the “general supervision and administration of 

the election laws . . . .” Fla. Stat. § 15.13. The Secretary of State must “obtain and maintain the 

uniformity in the interpretation and implementation of the election laws.” Fla. Stat. § 97.012(1).

Secretary Byrd has the duty to follow and enforce federal and state laws as they pertain to elections 

and to provide instruction to local election officials regarding carrying out such laws. Florida law 

therefore vests Secretary Byrd with the authority to “adopt by rule uniform standards” for the 

“interpretation and implementation of chapters 97 through 102 and 105 of the Election Code.” Id.

Moreover, both the Florida Division of Elections, which is tasked with overseeing Florida’s elections, 

and the Florida Office of Election Crimes and Security, which is tasked with investigating election 

crimes, are divisions within the control of the Secretary of State. Fla. Stat. §§ 20.10, 97.022.

52. The Florida Office of Election Crimes and Security was established in 2022 pursuant 

to Fla. Stat. § 97.022. “The Office of Election Crimes and Security is created within the Department 

of State. The purpose of the office is to aid the Secretary of State in completion of his or her duties 

Case 1:22-cv-23366-XXXX Document 1 Entered on FLSD Docket 10/17/2022 Page 11 of 33
Page 12 of 33

under s. 97.012(12) and (15) by: (a) Receiving and reviewing notices and reports generated by 

government officials or any other person regarding alleged occurrences of election law violations or 

election irregularities in this state [and] (b) Initiating independent inquiries and conducting 

preliminary investigations into allegations of election law violations or election irregularities in this 

state.” Fla. Stat. § 97.022(1). “The office may review complaints and conduct preliminary 

investigations into alleged violations of the Florida Election Code or any rule adopted pursuant thereto 

and any election irregularities.” Fla. Stat. § 97.022(2). “By January 15 of each year, the department 

shall submit a report to the Governor, the President of the Senate, and the Speaker of the House of 

Representatives detailing information on investigations of alleged election law violations or election 

irregularities conducted during the prior calendar year. The report must include the total number of 

complaints received and independent investigations initiated and the number of complaints referred 

to another agency for further investigation or prosecution, including the total number of those matters 

sent to a special officer pursuant to s. 102.091.” Fla. Stat. § 97.022(2). Accordingly, the Florida Office 

of Election Crimes and Security has the power to receive and investigate complaints into alleged 

violations of the Florida Election Code, and the power to make referrals to law enforcement agencies 

for prosecution of alleged violations of the Florida Election Code. Moreover, the Florida Office of 

Election Crimes and Security is obligated to report its conduct on an annual basis to the Governor and 

the chief officers of both the Florida Senate and House of Representatives.

53. Secretary Byrd is an appropriate Defendant in this case. This suit addresses a provision 

of the Florida Election Code within his purview, and which is also criminal in nature, such that it is 

within the purview of the Florida Office of Election Crimes and Security, thereby permitting an office 

under Secretary Byrd’s direction to receive complaints about the Act and to investigate alleged 

violations of the Amended Law.

Case 1:22-cv-23366-XXXX Document 1 Entered on FLSD Docket 10/17/2022 Page 12 of 33
Page 13 of 33

Attorney General Ashley Moody

54. Defendant Ashley Moody is the Attorney General of Florida. She is sued in her 

official capacity. Attorney General Moody is a person within the meaning of 42 U.S.C. § 1983 and 

acts under color of state law. She serves as the State’s chief legal officer. Fla. Const. Art. IV, § 4(b). 

The Florida Constitution creates the Office of the Statewide Prosecutor under Attorney General 

Moody’s oversight and control. Id. That Office has concurrent jurisdiction with the state attorneys “to 

prosecute violations of criminal laws occurring or having occurred, in two or more judicial circuits as 

part of a related transaction, or when any such offense is affecting or has affected two or more judicial 

circuits as provided by general law.” Id. Such authority is interpreted broadly. See Scott v. State, 102 

So. 3d 676, 677 (Fla. 5th DCA 2012); King v. State, 790 So. 2d 477, 478 (Fla. 5th DCA 2001). 

Attorney General Moody is responsible for enforcement of the Act and is therefore an appropriate 

defendant in this case. 

GENERAL ALLEGATIONS

55. A recent amendment to Fla. Stat. § 101.5614(8), a provision of the Florida Election 

Code, creates criminal penalties to members of the public who observe canvassing board proceedings 

using vague and overbroad language that threatens to chill core speech related to the oversight of 

elections and county canvassing boards.

56. Prior to the amendment which went into effect earlier this year, Fla. Stat. § 

101.5614(8) stated that “[a]ny supervisor of elections, deputy supervisor of elections, canvassing 

board member, election board member, or election employee who releases the results of any 

election prior to the closing of the polls in that county on election day commits a felony of the 

third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.”

57. However, Fla. Stat. § 101.5614(8) was amended in 2022. The amended version 

Case 1:22-cv-23366-XXXX Document 1 Entered on FLSD Docket 10/17/2022 Page 13 of 33
Page 14 of 33

which went into effect in 2022 will be referred to herein as the “Amended Law.” The Amended 

Law provides as follows:

Any supervisor of elections, deputy supervisor of elections, canvassing board 

member, election board member, election employee, or other person authorized to 

observe, review, or inspect ballot materials or observe canvassing who releases any 

information about votes cast for or against any candidate or ballot measure or any 

results of any election before the closing of the polls in that county on election day 

commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, 

or s. 775.084.

(emphasis added).1

58. The pre-amendment version of Section 101.5614(8) prohibited county elections 

officials from releasing the results of an election before the end of election day. That longstanding 

prohibition served, and continues to serve, the salutary purpose of ensuring against the premature 

release of election results by those clothed with government authority.

59. Such canvassing board and election oversight efforts are buttressed by the fact that 

canvassing board meetings are open to the public under Florida law, and because voted ballots 

(including those which are subject to review by a canvassing board), are public records under 

Florida law. As one court put it, “[n]othing could be more obvious than that a ballot becomes a public 

record once it is voted.” Rogers v. Hood, 906 So. 2d 1220, 1223 (Fla. 1st DCA 2005). It is therefore 

1 The amendment is contained in chapter 2022-73, section 18 of the Laws of Florida, which 

provides, in pertinent part as follows:

(8) Any supervisor of elections, deputy supervisor of elections, canvassing board 

member, election board member, or election employee, or other person authorized 

to observe, review, or inspect ballot materials or observe canvassing who releases 

any information about votes cast for or against any candidate or ballot measure or 

any the results of any election before prior to the closing of the polls in that county 

on election day commits a felony of the third degree, punishable as provided in s. 

775.082, s. 775.083, or s. 775.084. 

Case 1:22-cv-23366-XXXX Document 1 Entered on FLSD Docket 10/17/2022 Page 14 of 33
Page 15 of 33

a shocking disruption for the Florida Democratic Party and its volunteers to fear criminal sanctions 

as a result of sharing information about public meetings and public record materials.

60. Members of the public have historically been permitted to observe the pre-election 

day public meetings of county canvassing boards and were free to speak about their observations 

of this integral government activity. Political parties, campaigns, candidates, and goodgovernment advocates alike have grown accustomed to fielding volunteers to attend canvassing 

board meetings both to observe the proceedings and to share with the group for whom they 

volunteered their observations about the progress of the election and any problems or controversies 

that may have arisen in the canvassing process.

61. For instance, a campaign or party may have a legitimate interest in keeping track 

of the number of times a canvassing board determines that a ballot bearing some marking near the 

name of its candidate does or does not constitute a valid vote for that candidate or that candidate’s 

opponents. Likewise, a campaign or party may have a legitimate interest in monitoring whether 

canvassing boards’ applications of the voter intent standards are being applied in a fair and uniform 

manner, both within a single county and across different counties.

62. The Amended Law expanded the prohibition on released information from “the 

results” of the election to the results of the election or “any information about votes cast for or 

against any candidate or ballot measure.” This restriction, if applied to authorized persons’ 

communication of their observations with the political campaign, candidate, or political party for 

whom they are observing, could prohibit authorized persons from relaying how the canvassing 

board ruled on the intent of a voter when it determined voter intent on ballots appearing before a 

canvassing board.

Case 1:22-cv-23366-XXXX Document 1 Entered on FLSD Docket 10/17/2022 Page 15 of 33
Page 16 of 33

63. Additionally, the statute may prohibit authorized members of the public who 

observe publicly noticed and open canvassing board meetings from discussing what they observed.

64. The Amended Law is vague, overbroad, and chilling, including its use of the word 

“release.” It was unambiguous in the pre-amendment context that the word “release” meant to 

disseminate the results of an election outside of the government officials charged with 

administering the election.

65. In the Amended Law, the release prohibition extends beyond government officials 

to other authorized persons. As such, it is unclear whether the word “release” might be construed 

more broadly to cover authorized persons merely sharing information they observed at the 

canvassing board meeting with the public, or the political party, campaign, or candidate for whom 

they are volunteering. At least one lawyer for a supervisor of elections has informally advised that 

the law could be construed that broadly.

66. The Amended Law is also vague because the phrase “any information about votes 

cast for or against any candidate or ballot measure” is unbounded. Depending on how broadly a 

prosecutor construes that language, even statements about cast ballots that do not identify the 

candidate could be criminal. This leads to absurd results since, for example, even an observer’s 

statement that a canvassing board rejected every ballot which came before it on a given day, or 

even a statement that the canvassing board met and ruled on the validity of cast ballots, could 

arguably be construed as “any information about votes cast for or against” a candidate or ballot 

measure.

67. The Amended Law is also vague because it is unclear who an “authorized” person 

is, as it arguably criminalizes speech about public meetings by members of the public who are 

permitted to observe canvassing board proceedings, including members of the Florida Democratic 

Case 1:22-cv-23366-XXXX Document 1 Entered on FLSD Docket 10/17/2022 Page 16 of 33
Page 17 of 33

Party who have, and have not, volunteered to participate in the party’s election oversight efforts. 

It may even be a felony for the public to discuss what they observe in public government meetings 

streamed and archived on the Internet because some canvassing board meetings are streamed live

over the Internet. E.g., Exhibit M, Broward, 10/17/22. And, some canvassing board meetings are 

even archived on government websites for the public to observe long after they have ended. See

Exhibit N, Broward Canvassing Bd. Meeting Archive, https://www.browardvotes.gov/CanvassingBoard-Meetings/Canvassing-Board-Meetings-Archives (last accessed Oct. 13, 2022). As written, the 

Amended Law could arguably result in the prosecution of members of the public just for discussing 

what they observe in public government meetings streamed and archived on the Internet.

68. The Amended Law is clearly overbroad insofar as it criminalizes the “release” of “any 

information” by “authorized” persons about votes cast for or against any candidate or ballot measure 

or any results of any election before the closing of the polls in that county.

69. The Amended Law fails to give people of common intelligence fair notice of what the 

law demands of them. As just a few examples:

a. Plaintiff Moscowitz does not know, and cannot predict, what Fla. Stat. § 

101.5614(8) permits, nor what it prohibits and criminalizes, despite the fact that she has been 

a Harvard-educated attorney for more than 45 years, with most of her legal practice focused 

on the practice of criminal law, both as a federal prosecutor and as a criminal defense attorney.

Moscowitz Decl. at ¶ 16.

b. Plaintiff Planas does not know, and cannot predict, what Fla. Stat. § 

101.5614(8) permits, nor what it prohibits and criminalizes, despite the fact that he served 

four terms in the Florida Legislature, despite the fact he has taught election law or state and 

local government law as an adjunct professor at St. Thomas University School of Law for 

Case 1:22-cv-23366-XXXX Document 1 Entered on FLSD Docket 10/17/2022 Page 17 of 33
Page 18 of 33

approximately seven years, and despite the fact that he has been an attorney for more than 24 

years, with a substantial portion of his legal practice focused on the practice of election law.

Planas Decl. at ¶ 19.

c. And, the FDP’s Voter Protection Director, Sam Koplewicz, does not know, 

and cannot predict, what Fla. Stat. § 101.5614(8) permits, nor what it prohibits and 

criminalizes, despite the fact that he is a Harvard-educated lawyer who is well acquainted with 

Florida election law due to his having worked on the voter protection team’s staff for multiple 

election cycles in Florida. Koplewicz Decl. at ¶ 17.

70. The Amended Law is vague and overbroad because it is unclear whether its only 

temporally restrictive language – “before the closing of the polls in that county on election day” –

applies just to the prohibition against the release of “any results of any election,” or whether it also 

applies to the prohibition against the release of “any information about votes cast for or against any 

candidate or ballot measure.” The Amended Law says that any person “who releases any information 

about votes cast for or against any candidate or ballot measure or any results of any election before 

the closing of the polls in that county on election day commits a felony of the third degree.” This 

language contains insufficient punctuation to reveal the meaning of the Legislature’s chosen words. 

Grammatically, the temporal restriction may apply either only to the release of election results, or to 

every act the Amended Law prohibits.

71. The Amended Law is both vague and overbroad because the phrase “any 

information about votes cast for or against any candidate or ballot measure” is unbounded, leading 

to absurd results. The language arguably encompasses communication of anything related to a 

canvassing board’s action. Arguably, even the statement that a canvassing board accepted, as valid, 

every vote that came before it on a given day; or even simply that a canvassing board met and 

Case 1:22-cv-23366-XXXX Document 1 Entered on FLSD Docket 10/17/2022 Page 18 of 33
Page 19 of 33

ruled on the validity of cast votes, could be construed as “any information about votes cast for or 

against any candidate or ballot measure.”

72. The Amended Law also amounts to an impermissible content-based restriction in 

violation of the First Amendment. The Amended Law’s prohibition of the “release” of “any 

information about votes cast for or against any candidate or ballot measure or any results of any 

election” is a content-based restriction because the purpose of the statute is to stifle speech of a 

particular content The law is not narrowly tailored and serves no compelling interest which would 

warrant this restriction on speech.

73. During the Primary Election in August 2022, at least one lawyer for a supervisor of 

elections gave verbal warnings to everyone present at every canvassing board meeting about the 

changes in the Amended Law, which has had a chilling effect on volunteer participation in the 

FDP and its affiliated campaigns’ canvassing board oversight operations. It has also had a chilling 

effect on the exchange of information between volunteers, and between volunteers and the FDP

and its affiliated campaigns’ election oversight personnel. See Moscowitz Decl.; Planas Decl.; 

Koplewicz Decl.

74. In that regard, the Amended Law has already shut down private exchanges of 

information and it threatens to continue to do so.

75. Broadly prohibiting authorized observers from sharing their observations, 

including with the political parties or campaigns they are volunteering for, raises serious First 

Amendment concerns. A restriction on speech related to elections must “‘not significantly impinge

on constitutionally protected rights.’” Citizens for Police Accountability Political Cmte. v. 

Browning, 572 F.3d 1213, 1221 (11th Cir. 2009) (quoting Burson v. Freeman, 504 U.S. 191

(1992)) (emphasis added). Because the Amended Law facially restricts authorized observers from 

Case 1:22-cv-23366-XXXX Document 1 Entered on FLSD Docket 10/17/2022 Page 19 of 33
Page 20 of 33

sharing their observations, it does significantly impinge upon their right of free speech.

76. The Amended Law blatantly violates the concept that, in our system of 

“government in which the citizenry is the final judge of the proper conduct of public business,” 

“the First and Fourteenth Amendments command nothing less than that the States may not impose 

sanctions on the publication of truthful information contained in official . . . records open to public 

inspection.” See Cox Broad. Corp. v. Cohn, 420 U.S. 469, 495 (1975) (holding freedom of the 

press protected the media’s truthful publication of court documents open to the public).

77. During the August 2022 Primary Election, concerns about the Amended Law, and 

its attendant serious criminal penalties, have already chilled members of the public from 

volunteering to attend canvassing board meetings in Florida on behalf of the FDP.

78. It has also chilled the FDP’s efforts to maintain a canvassing board operation for 

fear of inadvertently exposing volunteers to criminal liability for merely passing along their 

observations to lawyers monitoring the conduct of the election.

79. In the case of Plaintiff JC Planas, the Amended Law’s chilling effect also threatens 

his financial livelihood as an election law attorney who represents candidates before county 

canvassing boards.

The State Failed to Respond to the FDP’s

Request for an Advisory Opinion

80. On September 7, 2022, shortly after the 2022 Primary Election was certified, counsel 

for the Florida Democratic Party sent a request for an advisory opinion regarding the Amended Law

to the Florida Division of Elections pursuant to Fla. Stat. § 106.23(2) and Fla. Admin. Code. R. 1S2.010. The Florida Division of Elections is an office within the Florida Department of State. Fla. Stat. 

§ 20.10(2)(a).

Case 1:22-cv-23366-XXXX Document 1 Entered on FLSD Docket 10/17/2022 Page 20 of 33
Page 21 of 33

81. Advisory opinions issued by the Department of State, Division of Elections, have “the 

effective force of state law or official policy.” League of Women Voters of Florida, Inc., v. Detzner, 

314 F. Supp. 3d 1205, 1213–14 (N.D. Fla. 2018). Supervisors of elections “reasonably understand 

the state’s chief election officer’s opinions as how he ‘interpret[s] and [is] likely to enforce Florida’s 

election laws.’” Id.

82. The FDP’s September 7, 2022 request for an advisory opinion sought guidance about 

the Amended Law so that the party and its affiliated campaigns and volunteers would know what the 

Amended Law does and does not prohibit, specifically as it relates to what has traditionally been a 

core part of the party’s and campaigns’ volunteer election monitoring programs.

83. The request for an advisory opinion posed two questions to the Division of Elections:

1. What information about votes cast for or against any candidate or 

ballot measure may an authorized person communicate privately, prior to the closing 

of the polls in the county in which the person is authorized, with other authorized 

persons volunteering or working on behalf of the same political party, candidate, or 

campaign?

2. What information about votes cast for or against any candidate or 

ballot measure may an authorized person communicate publicly prior to the closing 

of the polls in the county in which the person is authorized?

Exhibit D.

84. The Division of Elections has previously held that its advisory opinions cannot declare 

statutes unconstitutional. See Division of Elections Opinion 13-05 (Mar. 25, 2013). Cognizant of that 

restriction, the FDP’s request for an advisory opinion invited an interpretation of the Amended Law

which minimized its attendant harm by protecting volunteers from the threat of criminal prosecution, 

the party’s ability to operate a meaningful canvassing board oversight operation, and First 

Amendment freedoms. The FDP requested that the Division of Elections respond with an advisory 

opinion on an expedited basis, in accordance with Fla. Admin. Code. R. 1S-2.010(4)(i).

Case 1:22-cv-23366-XXXX Document 1 Entered on FLSD Docket 10/17/2022 Page 21 of 33
Page 22 of 33

85. On September 8, 2022, the Director of the Division of Elections confirmed receipt of 

the request for an advisory opinion.

86. On September 29, 2022, after follow-up from the FDP, the Division of Elections 

responded: “We coordinate with the General Counsel’s Office on advisory opinions whom you copied 

on your email. We will let you know as soon as we can on the status.” Exhibit E.

87. As of the date this lawsuit is filed, the Division of Elections has yet to respond to the 

request for an advisory opinion. Therefore, the FDP and its members, candidates, and volunteers, 

including Plaintiffs Moscowitz and Planas, are left to guess whether participation in a volunteer 

program to ensure a free and fair election could amount to a felony.

County Canvassing Boards Are

Imminently Meeting Across the State

88. Voters across Florida have already begun to vote. This means that county canvassing 

boards across the state are set to meet imminently to review voted ballots in the presence of the public.

89. Pursuant to Fla. Stat. § 101.68(2)(a), county canvassing boards “may begin the 

canvassing of vote-by-mail ballots upon the completion of the public testing of automatic tabulating 

equipment pursuant to s. 101.5612(2),” commonly referred to as “logic and accuracy testing.”

90. The referenced statute, Fla. Stat. § 101.5612(2) provides that logic and accuracy 

testing may take place “[o]n any day not more than 25 days before commencement of early voting . . 

. .” In turn, Fla. Stat. § 101.657 establishes that “[e]arly voting shall begin on the 10th day before an 

election that contains state or federal races,” and that “[i]n addition, early voting may be offered at 

the discretion of the supervisor of elections on the 15th, 14th, 13th, 12th, [or] 11th . . . day before an 

election that contains state or federal races . . . .”

91. In light of the foregoing, a county which begins early voting on the earliest permissible 

date would have been eligible to convene county canvassing boards as early as September 30, 2022.

Case 1:22-cv-23366-XXXX Document 1 Entered on FLSD Docket 10/17/2022 Page 22 of 33
Page 23 of 33

92. Counties across Florida are imminently convening their canvassing boards. For 

example:

a. In Alachua County, logic and accuracy testing is scheduled for October 14, 

2022, and the canvassing board is scheduled to begin meeting to determine issues such as 

voter intent on October 17, 2022. Exhibit F.

b. In Broward County, logic and accuracy testing took place on September 29, 

2022, and the canvassing board is scheduled to begin meeting to determine issues such as 

voter intent on October 17, 2022. Exhibit G.

c. In Hillsborough County, logic and accuracy testing took place on October 6, 

2022, and the canvassing board is scheduled to begin meeting to determine issues such as 

voter intent on October 20, 2022. Exhibit H.

d. In Miami-Dade County, logic and accuracy testing is scheduled for October 

19, 2022, and the canvassing board is scheduled to begin meeting to determine issues such as 

voter intent on October 20, 2022. Exhibit I.

e. In Palm Beach County, logic and accuracy testing took place on October 12, 

2022, and the canvassing board is scheduled to begin meeting to determine issues such as 

voter intent on October 17, 2022. Exhibit J.

f. In Pinellas County, logic and accuracy testing is scheduled for October 17, 

2022, and the canvassing board is scheduled to begin meeting to determine issues such as 

voter intent on October 19, 2022. Exhibit K.

g. In Osceola County, logic and accuracy testing is scheduled for October 14, 

2022, and the canvassing board is scheduled to begin meeting to determine issues such as 

voter intent on October 19, 2022. Exhibit L.

Case 1:22-cv-23366-XXXX Document 1 Entered on FLSD Docket 10/17/2022 Page 23 of 33
Page 24 of 33

93. The FDP and its affiliated campaigns are in the final stages of recruiting and 

scheduling volunteers like Plaintiffs Moscowitz and Planas, to observe their local county canvassing 

boards during the canvassing of the 2022 General Election. Yet, the FDP and its affiliated campaigns 

have been unconstitutionally burdened in these efforts to due to the Amended Law’s chilling effects.

COUNT I – VIOLATION OF THE FIRST AMENDMENT

TO THE UNITED STATES CONSTITUTION

(42 U.S.C. § 1983)

94. Plaintiffs, on behalf of themselves and, in the case of the FDP, also on behalf of its 

candidates and members, repeat and incorporate by reference each allegation contained in 

paragraph numbers 1–93 as if fully set forth herein. 

95. The First Amendment to the United States Constitution, applicable to the states 

through the Fourteenth Amendment, prohibits the State of Florida from, in relevant part, 

“abridging the freedom of speech . . . or of the right of the people to . . . . petition the Government 

for a redress of grievances.”

96. “A State’s broad power to regulate the time, place, and manner of elections ‘does 

not extinguish the State’s responsibility to observe the limits established by the First Amendment 

rights of the State’s citizens.’” Eu v. San Francisco Cty. Democratic Cent. Comm., 489 U.S. 214, 

222 (1989) (quoting Tashjian v. Republican Party of Conn., 479 U.S. 208, 217 (1986)).

97. A “law may be invalidated as overbroad if ‘a substantial number of its applications 

are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.’” United States v. 

Stevens, 559 U.S. 460, 473 (2010) (quoting Wash. State Grange v. Wash. State Republican Party, 

552 U.S. 442, 449 n.6 (2008)).

98. The Amended Law is vague and overbroad, and a substantial number of its 

applications are unconstitutional, in violation of Plaintiffs’ First Amendment rights to speech and 

Case 1:22-cv-23366-XXXX Document 1 Entered on FLSD Docket 10/17/2022 Page 24 of 33
Page 25 of 33

to petition the government for redress of grievances. 

99. The Amended Law is unconstitutionally vague and overbroad and not narrowly 

tailored to serve a legitimate government interest. By expanding Fla. Stat. § 101.5614(8)’s 

prohibition on ‘released’ information from “the results” of the election by county elections 

personnel, to the results of the election or “any information about votes cast for or against any 

candidate or ballot measure,” by county elections personnel or anyone authorized to observe the 

proceedings, the Amended Law risks impermissibly criminalizing the protected First Amendment 

activity of volunteers seeking to ensure the integrity of the election. It also impinges on political 

parties’ and campaigns’ rights to meaningfully monitor the election. And, it does so in a vague and 

unbounded fashion, such that no canvassing board observer could reliably predict what conduct is 

lawful, and what conduct is felonious.

100. The Amended Law has resulted in irreparable constitutional harm by chilling, and 

threatening to chill, Plaintiffs’ protected rights, both on behalf of themselves and, in the case of 

the FDP, also on behalf of its candidates and members. The Amended Law discourages would-be 

observers from participating, or meaningfully participating, in canvassing board observation for 

fear that they may be arrested or prosecuted for violating the Amended Law’s vague and 

ambiguous offenses.

101. The Amended Law has already led the Plaintiffs and FDP’s members to selfcensorship and will continue to do so.

102. The Amended Law also amounts to an impermissible content-based restriction in 

violation of the First Amendment. Its prohibition of the “release” of “any information about votes 

cast for or against any candidate or ballot measure or any results of any election” is a content-based 

restriction because the purpose of the statute is to stifle speech of a particular content The law is 

Case 1:22-cv-23366-XXXX Document 1 Entered on FLSD Docket 10/17/2022 Page 25 of 33
Page 26 of 33

not narrowly tailored and serves no compelling interest which would warrant this restriction on 

speech.

103. The Amended Law arguably restricts the free speech rights of members of the 

public just observing an open, public government meeting, whether at home or remotely, and 

whether live or recorded.

104. Not only does this unconstitutionally impinge on Plaintiffs’ rights to protected 

speech, but it also impinges on the freedom to petition the Government for a redress of grievances, 

especially where a major reason that canvassing board oversight exists in the first instance is so 

that political parties and candidates may object to canvassing boards’ election determination 

decisions, whether before the canvassing board itself, or in court. Criminalizing the sharing of 

information about what was observed before a canvassing board unreasonably burdens the right to 

petition the Government for redress of a grievance because it chills the ability for such information 

to make its way to the appropriate decisionmakers, including party or campaign attorneys.

105. The Amended Law is not narrowly tailored to achieve a compelling government 

interest. Indeed, unlike the previous version of Fla. Stat. § 101.5614(8), which only prohibited 

county elections personnel from prematurely releasing the election results, the newly added 

portions of the Amended Law serve no legitimate purpose whatsoever.

106. As to the prohibition against authorized observers ‘releasing’ “any information 

about votes cast for or against any candidate or ballot measure,” such information is vital to a 

meaningful election transparency effort. The prohibition against authorized observers prematurely 

‘releasing’ the results of the election also serves no legitimate purpose, because, unlike county 

elections personnel, such individuals are not in any position to know the results of the election 

Case 1:22-cv-23366-XXXX Document 1 Entered on FLSD Docket 10/17/2022 Page 26 of 33
Page 27 of 33

before they are publicly released. For these reasons, the Amended Law’s principal purpose and 

result is simply to discourage people from observing canvassing boards.

107. Each of the Defendants is responsible for enforcing the Amended Law. 

108. By acting under color of state law to deprive Plaintiffs of their First Amendment 

rights, Defendants have violated 42 U.S.C. § 1983.

109. As a result of Defendants’ unlawful conduct, Plaintiffs have suffered and will 

continue to suffer irreparable harm, including violations of their rights to speech and to petition 

the government for redress of grievances, and other expressive conduct as guaranteed by the First 

Amendment. 

COUNT II – VIOLATION OF THE DUE PROCESS CLAUSE OF THE

FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION

(42 U.S.C. § 1983)

110. Plaintiffs, on behalf of themselves and, in the case of the FDP, also on behalf of its 

candidates and members, repeat and incorporate by reference each allegation contained in 

paragraph numbers 1–93 as if fully set forth herein.

111. The Due Process Clause of the Fourteenth Amendment of the United States 

Constitution prohibits the State of Florida from “depriv[ing] any person of life, liberty, or property 

without due process of law.” U.S. Const. amend. XIV, § 1. 

112. A state violates the Due Process Clause “by taking away someone’s life, liberty, or 

property under a criminal law so vague that it fails to give ordinary people fair notice of the conduct 

it punishes, or so standardless that it invites arbitrary enforcement.” Johnson v. United States, 576 

U.S. 591, 595 (2015). 

Case 1:22-cv-23366-XXXX Document 1 Entered on FLSD Docket 10/17/2022 Page 27 of 33
Page 28 of 33

113. The Amended Law is impermissibly vague and overbroad because it fails to 

provide a person of ordinary intelligence fair notice of what is prohibited, and is so standardless 

that it authorizes or encourages arbitrary and discriminatory enforcement of the Amended Law. 

114. Because Fla. Stat. § 101.5614(8)’s expanded prohibition on ‘released’ 

information—from “the results” of the election by county elections personnel, to the results of the 

election or “any information about votes cast for or against any candidate or ballot measure,” by 

county elections personnel or anyone permitted to observe the proceedings—is vague and 

overbroad, the Amended Law fails to provide fair notice to ordinary people seeking to serve as 

statutorily authorized canvassing board observers regarding their exposure to potential criminal 

liability by merely discussing with someone else what they observed, potentially regardless of who 

that person may be. The Amended Law invites arbitrary enforcement where it can be construed 

very broadly by some law enforcement officers or courts, and very narrowly by others.

115. Plaintiffs, both on behalf of themselves and, in the case of the FDP, also on behalf 

of its candidates and members, have already been and will continue to be discouraged from lawful 

participation in canvassing board oversight operations for fear of arbitrary enforcement and severe 

criminal penalties under the Amended Law.

116. Because the Amended Law is vague and standardless, it has resulted in irreparable 

constitutional harm by violating Plaintiffs’ constitutional rights, to due process under the 

Fourteenth Amendment, both on behalf of themselves and, in the case of the FDP, also on behalf 

of its candidates and members.

117. Each of the Defendants is responsible for enforcing the Act. 

118. By acting under color of state law to deprive Plaintiffs of their Fourteenth 

Amendment rights, Defendants have violated 42 U.S.C. § 1983. 

Case 1:22-cv-23366-XXXX Document 1 Entered on FLSD Docket 10/17/2022 Page 28 of 33
Page 29 of 33

119. As a result of Defendants’ unlawful conduct, Plaintiffs have suffered and will 

continue to suffer irreparable harm, including violations of their Fourteenth Amendment rights. 

COUNT III – DECLARATION THAT FLA. STAT. § 101.5614(8) IS

UNCONSTITUTIONAL UNDER THE FIRST AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES CONSTITUTION

(28 U.S.C. § 2201 and 2202)

120. Plaintiffs, on behalf of themselves and, in the case of the FDP, also on behalf of its 

candidates and members, repeat and incorporate by reference each and every allegation contained 

in this Complaint above, including those in Counts I and II, as if fully set forth herein.

121. An actual and justiciable controversy has arisen and now exists between Plaintiffs 

and Defendants concerning the Plaintiffs’ rights and obligations with regard to Fla. Stat. § 

101.5614(8), both on behalf of themselves and, in the case of the FDP, also on behalf of its 

candidates and members.

122. Plaintiffs seek a declaratory judgment from this Court that Fla. Stat. § 101.5614(8)

is unconstitutional under the First and/or Fourteenth Amendments, as set forth in Counts I and II 

to this Complaint, and that Plaintiffs, on behalf of themselves and, in the case of the FDP, its 

candidates and members, may participate fully and freely in canvassing board oversight operations 

in the same manner and fashion as they were able to prior to the 2022 amendment to Fla. Stat. § 

101.5614(8), without fear that any of their communications with any other person relating to a 

canvassing board proceeding will result in arrest, criminal investigation, prosecution, or any other

mechanism of enforcement of Fla. Stat. § 101.5614(8).

123. Plaintiffs have a substantial interest in the rights and obligations of Fla. Stat. § 

101.5614(8), have equitable or legal rights affected by of Fla. Stat. § 101.5614(8), and require 

judicial confirmation as to their rights, title, status, and interests, and are entitled to have their 

rights validated by the Court. 

Case 1:22-cv-23366-XXXX Document 1 Entered on FLSD Docket 10/17/2022 Page 29 of 33
Page 30 of 33

124. There is a bona fide, actual, present practical need for the declaration.

125. The declaration involves a present, ascertained, or ascertainable state of facts or 

present controversy as described in this Complaint.

126. The powers, privileges, or rights of the Plaintiffs are dependent upon the facts and 

the law applicable to the facts as set forth in this Complaint. 

127. The Defendants, through actions, practice, and positions, have shown an interest 

that is actual, present, adverse, and antagonistic to the Plaintiffs’ respective rights and interests 

described in the Complaint.

128. The Defendants’ antagonistic and adverse interests are before the Court by proper 

process. 

129. The relief sought is not merely the giving of legal advice by the Court or the answer 

to questions propounded from curiosity.

130. A declaratory judgment and injunctive relief are strongly in the public interest for 

the reasons set forth in this Complaint.

131. Moreover, Defendants will incur no burden if the relief sought here is granted 

because the requested relief will not affect the operations of any of the Defendants, or of any other 

elections or law enforcement personnel in the State of Florida. Additionally, even if the relief 

sought here were to cause any burden on the Defendants, such burden does not outweigh the 

benefits to issuing the requested relief where the subject statute is unconstitutional.

132. Declaratory and injunctive relief preserves rights under the United States 

Constitution and laws, and upholds the requirements of the United States Constitution, including 

numerous rights under the penumbra of the First and Fourteenth Amendments, as well as the rights 

of political parties and campaigns to ensure a free and fair election.

Case 1:22-cv-23366-XXXX Document 1 Entered on FLSD Docket 10/17/2022 Page 30 of 33
Page 31 of 33

PRAYER FOR RELIEF

WHEREFORE, in light of the foregoing facts and arguments, Plaintiffs request that the 

Court: 

a. Declare that Fla. Stat. § 101.5614(8), as amended in 2022, is 

unconstitutional under the First and Fourteenth Amendments to the United States 

Constitution and that it is therefore a nullity, and that Fla. Stat. § 101.5614(8) is restored to 

its pre-amendment language;

b. Enter a preliminary injunction, and thereafter a permanent injunction, (a) 

enjoining the Defendants, their officers, employees, and agents, all persons acting in active 

concert or participation with Defendants, or under Defendants’ supervision, direction, or 

control, and all other persons within the scope of Federal Rule of Civil Procedure 65, from 

investigating, prosecuting, or otherwise enforcing Fla. Stat. § 101.5614(8), as amended in 

2022, in any way, including as to its provisions which criminalize or otherwise impinge on 

the conduct of any “person authorized to observe, review, or inspect ballot materials or 

observe canvassing; and (b) permitting enforcement only of the pre-amendment version of 

Fla. Stat. § 101.5614(8);

c. Grant Plaintiffs’ costs of suit, and reasonable attorneys’ fees and other 

expenses, pursuant to, inter alia, 42 U.S.C. § 1988 and other applicable laws; and 

d. Grant any other relief as the Court may deem just and proper. 

Case 1:22-cv-23366-XXXX Document 1 Entered on FLSD Docket 10/17/2022 Page 31 of 33
Page 32 of 33

Respectfully submitted,

Counsel for Plaintiffs

/s/ Marc A. Burton

Marc A. Burton, Esq.

Florida Bar No. 95318

Richard J. Burton, Esq.

Florida Bar No. 179337

The Burton Firm, P.A.

2875 N.E. 191st Street, Suite 403

Aventura, Florida 33180

(305) 705-0888

pleadings@theburtonfirm.com

mburton@theburtonfirm.com

rb@theburtonfirm.com

and

Mark Herron, Esq.

Florida Bar No. 199737

Messer Caparello P.A.

2618 Centennial Place

Tallahassee, Florida 32308

(850) 222-0720

mherron@lawfla.com

Application for Admission to the Southern 

District of Florida Bar filed and pending

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on October 17, 2022, a true and correct copy of the foregoing

was served via e-mail to the individuals on the attached service list.

/s/ Marc A. Burton

Marc A. Burton, Esq.

Case 1:22-cv-23366-XXXX Document 1 Entered on FLSD Docket 10/17/2022 Page 32 of 33
Page 33 of 33

SERVICE LIST

Marc A. Burton, Esq.

Richard J. Burton, Esq.

The Burton Firm, P.A.

2875 N.E. 191st Street, Suite 403

Aventura, Florida 33180

pleadings@theburtonfirm.com

mburton@theburtonfirm.com

rb@theburtonfirm.com

Counsel for Plaintiffs

Mark Herron, Esq.

Messer Caparello P.A.

2618 Centennial Place

Tallahassee, Florida 32308

mherron@lawfla.com

Counsel for Plaintiffs

Bradley M. McVay, Esq.

General Counsel

Florida Department of State

R.A. Gray Building

500 South Bronough Street

Tallahassee, Florida 32399

brad.mcvay@dos.myflorida.com

Counsel for Defendant Cord Byrd,

in his official capacity as Florida Secretary of State

Defendant Ashley Moody

via the Office of the Attorney General

PL-01 The Capitol

400 South Monroe Street

Tallahassee, Florida 32399

oag.civil.eserve@myfloridalegal.com

Counsel for Defendant Ashley Moody,

in her official capacity as Florida Attorney General

Case 1:22-cv-23366-XXXX Document 1 Entered on FLSD Docket 10/17/2022 Page 33 of 33