CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 10/27/2023 1

Casting Provisional Ballots 

in the Wrong Precinct in Florida 

Florida Democratic Party v. Hood 

(Robert L. Hinkle, N.D. Fla. 4:04-cv-395) 

Florida’s Democratic Party sought to enforce the Help America 

Vote Act (HAVA) by enjoining Florida from rejecting provisional 

ballots cast in the wrong precinct in the 2004 general election. The 

case was filed on September 29, and the court issued a preliminary 

injunction on October 21. The court ruled that HAVA does not require the counting of provisional ballots cast in the wrong precinct, 

but HAVA does require that the provisional ballots be provisionally 

accepted. 

Subject: Provisional ballots. Topics: Help America Vote Act 

(HAVA); provisional ballots. 

On September 29, 2004, Florida’s Democratic Party filed a federal complaint 

in the Northern District of Florida’s Tallahassee courthouse seeking to enforce the Help America Vote Act (HAVA)1

 by enjoining Florida from rejecting provisional ballots cast in the wrong precinct in the 2004 general election.2

 With its complaint, the party filed a motion for a preliminary injunction.3

 Judge Robert L. Hinkle held a telephonic status conference on the next 

day.4 On the third day, Judge Hinkle set an injunction hearing for October 8.5

Judge Hinkle typically began emergency cases with a telephonic conference.6

 In twenty years of private practice, he sent a lot of bills to a lot of clients, so he was aware of the expenses involved in travel for in-person proceedings.7

 Election cases often involve out-of-state attorneys.8 His goal at the 

status conference was to find out (1) the extent to which the parties had already communicated with each other, (2) how big an emergency the case 

presented, and (3) whether a prompt hearing would be necessary and whether it would require live witnesses.9

1. Pub. L. No. 107-252, 116 Stat. 1666 (2002), as amended, 52 U.S.C. §§ 20901–21145. See 

generally Marie Leary & Robert Timothy Reagan, The Help America Vote Act (Federal Judicial Center 2012); Symposium, HAVA @ 10, 12 Election L.J. 111 (2013). 

2. Complaint, Fla. Democratic Party v. Hood, No. 4:04-cv-395 (N.D. Fla. Sept. 29, 2004), 

D.E. 1; Fla. Democratic Party v. Hood, 342 F. Supp. 2d 1073, 1074–75 (N.D. Fla. 2004); see

Lucy Morganjoni James, New Suit Expands Pre-Election Battles, St. Petersburg Times, Oct. 8, 

2004, at 5B. 

3. Preliminary-Injunction Motion, Fla. Democratic Party, No. 4:04-cv-395 (N.D. Fla. 

Sept. 29, 2004), D.E. 4. 

4. Docket Sheet, id. (Sept. 29, 2004). 

Tim Reagan interviewed Judge Hinkle for this report by telephone on October 10, 2012. 

5. Order, Fla. Democratic Party, No. 4:04-cv-395 (N.D. Fla. Oct. 1, 2004), D.E. 8. 

6. Interview with Hon. Robert L. Hinkle, Oct. 10, 2012. 

7. Id. 

8. Id. 

9. Id. 
Casting Provisional Ballots in the Wrong Precinct in Florida 

2 Federal Judicial Center 10/27/2023 

On October 8, Judge Hinkle permitted a member of Florida’s house of 

representatives and a voter to intervene in opposition to the complaint.10

Judge Hinkle decided that HAVA creates federal rights enforceable under 42 

U.S.C. § 1983,11 but Judge Hinkle denied preliminary injunctive relief on the 

party’s main argument.12 Florida’s supreme court determined on October 18 

that the requirement that provisional ballots be cast in the correct precinct 

did not violate Florida’s constitution.13

After additional telephonic conferences on October 1214 and 1415 and 

amicus participation by the U.S. Department of Justice,16 Judge Hinkle issued 

a preliminary injunction on October 21.17 He determined that the party had 

not shown a likely right for provisional ballots cast in the wrong precinct to 

be counted, but it had shown a likely right for provisional ballots cast in the 

wrong precinct to be provisionally accepted by poll workers.18 On January 13, 

2005, the party voluntarily dismissed its appeal.19

Judge Hinkle converted the preliminary injunction to a permanent injunction on February 4.20 On September 1, he awarded the party $33,934.04 

in attorney fees, expenses, and costs, reasoning that its partial injunctive success merited a 40% reimbursement.21

10. Transcript at 3–4, Fla. Democratic Party, No. 4:04-cv-395 (N.D. Fla. Oct. 8, 2004, 

filed Oct. 13, 2004), D.E. 39 [hereinafter Oct. 8, 2004, Transcript]; Minutes, id. (Oct. 8, 

2004), D.E. 35 [hereinafter Oct. 8, 2004, Minutes]; see Intervention Motion, id. (Oct. 4, 

2004), D.E. 11. 

11. Fla. Democratic Party v. Hood, 342 F. Supp. 2d 1073, 1077–78 (N.D. Fla. 2004); Oct. 

8, 2004, Transcript, supra note 10, at 5–8. 

12. Fla. Democratic Party, 342 F. Supp. 2d at 1079–81; Oct. 8, 2004, Transcript, supra

note 10, at 71–75; Oct. 8, 2004, Minutes, supra note 10; see Lucy Morganjoni James, Judge 

Upholds Restriction on Provisional Ballots, St. Petersburg Times, Oct. 9, 2004, at 5B. 

13. AFL-CIO v. Hood, 885 So. 2d 373 (Fla. 2004); see Gary Fineout, Ruling Backs Voting 

System, Miami Herald, Oct. 19, 2004, at 1B; Alisa Ulferts, Court Clarifies Provisional Ballot 

Use, St. Petersburg Times, Oct. 19, 2004, at 4B. 

14. Transcript, Fla. Democratic Party, No. 4:04-cv-395 (N.D. Fla. Oct. 12, 2004, filed 

Nov. 9, 2004), D.E. 62; Minutes, id. (Oct. 12, 2004), D.E. 37. 

15. Transcript, id. (Oct. 14, 2004, filed Nov. 9, 2004), D.E. 61; Minutes, id. (Oct. 14, 

2004), D.E. 46. 

16. Amicus Brief, id. (Oct. 19, 2004), D.E. 52; Amicus Brief, id. (Oct. 19, 2004), D.E. 51; 

Amicus Motion, id. (Oct. 19, 2004), D.E. 50; see Oct. 8, 2004, Transcript, supra note 10, at 4 

(denying a motion to join the U.S. Department of Justice as a party and declining the suggestion that the court be the one to invite the Department’s amicus participation); Joinder Motion, Fla. Democratic Party, No. 4:04-cv-395 (N.D. Fla. Oct. 7, 2004), D.E. 29. 

17. Fla. Democratic Party, 342 F. Supp. 2d 1073. 

18. Id. at 1079–81; see Judge: Provisional Ballots Cast in Wrong Precincts Don’t Count, 

Miami Herald, Oct. 22, 2004, at 3B; Daniel P. Tokaji, HAVA in Court: A Summary and 

Analysis of Litigation, 12 Election L.J. 203, 207 (2013). 

19. Docket Sheet, Fla. Democratic Party v. Hood, No. 04-15456 (11th Cir. Oct. 22, 2004). 

20. Order, Fla. Democratic Party, No. 4:04-cv-395 (N.D. Fla. Feb. 4, 2005), D.E. 74. 

21. Order, id. (Sept. 1, 2005), D.E. 90, 2005 WL 2137016; see Satisfaction of Judgment, id.

(Sept. 26, 2005), D.E. 92; Order, id. (May 9, 2005), D.E. 82 (determining entitlement to attorney fees).