FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JUNE 25, 2009

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 08-15115

________________________

D. C. Docket No. 08-00635-CV-FTM-29SPC

CITIZENS FOR POLICE ACCOUNTABILITY POLITICAL

COMMITTEE,

FLORIDA STATE CONFERENCE OF THE NATIONAL

ASSOCIATION FOR THE ADVANCEMENT

OF COLORED PEOPLE,

Plaintiffs-Appellees,

versus

KURT S. BROWNING,

in his capacity as Secretary of State of

the State of Florida,

SHARON L. HARRINGTON,

in her official capacity as Supervisor of

Elections, Lee County,

Defendants-Appellants.

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(June 25, 2009)
Before DUBINA, Chief Judge, EDMONDSON and HILL, Circuit Judges.

PER CURIAM:

This appeal is about voting. Florida Statute § 102.031(4) says that no person

may solicit voters “within 100 feet of the entrance to any polling place . . . or early

voting site,” and broadly defines “solicit” to include, among other things, “seeking

or attempting to seek a signature on any petition[.]” Fla. Stat. §§

102.031(4)(a)–(b). The Florida statute codifies the Florida legislature’s view that

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the right of Florida’s citizens to vote warrants substantial protection from

commotion -- that is, bustle, stir, confusion -- around the voting place. Today, we

must decide whether the Florida legislature went too far in defending the right to

vote by banning solicitation that targets voters exiting polling places and that also

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concerns matters unrelated to any issue then on the ballot. We conclude that the

Florida legislature did not go beyond its lawful power and, thus, reverse the district

court’s decision to bar enforcement of the Florida statute.

Background

The Florida statute defines “solicit” and “solicitation” to “include, but not be limited to, 1

seeking or attempting to seek any vote, fact, opinion, or contribution; distributing or attempting

to distribute any political or campaign material, leaflet, or handout; conducting a poll except as

specified in this paragraph; seeking or attempting to seek a signature on any petition; and selling

or attempting to sell any item. The terms ‘solicit’ or ‘solicitation’ shall not be construed to

prohibit exit polling.” Fla. Stat. § 102.031(4)(b). 

When we refer to polling places in this opinion, we also mean early voting sites. 2

2
Plaintiff Citizens for Police Accountability Political Committee is a political

action committee in the State of Florida. Plaintiff Florida State Conference of the

NAACP is the parent organization of 60 Florida branches of the national NAACP.

Plaintiffs support an amendment to the Fort Myers, Florida, city charter that would

create a citizen oversight panel for the city police department. To place the charter

amendment on a ballot, though, Plaintiffs must gather signatures from “10 percent

of the [city’s] registered electors as of the last preceding municipal general

election.” Fla. Stat. § 166.031(1). Plaintiffs claim that the best way to obtain

signatures is to approach voters exiting polling places.

In January 2008, Plaintiff Citizens for Police Accountability Political

Committee tried to solicit signatures from voters leaving a polling place in Fort

Myers. Although the proposed charter amendment related to nothing then on the

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ballot, election officials, in accordance with the Florida statute, banned the

signature-gatherers from soliciting voters within 100 feet of the polling place.

Plaintiffs say that many voters were able to park, vote, and leave without

interacting with the signature-gatherers.

Then in August 2008, Plaintiffs filed suit and sought injunctive relief under

Plaintiff Florida State Conference of the NAACP did not join the petition-circulation 3

effort until April 2008. 

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42 U.S.C. § 1983 against Kurt S. Browning, in his capacity as Secretary of State of

the State of Florida, and Sharon L. Harrington, in her capacity as Supervisor of

Elections in Lee County, Florida (collectively, the State). Plaintiffs claimed that

the Florida statute violated their First Amendment right to engage in political

speech at polling places. Plaintiffs asked the district court to declare the Florida

statute unconstitutional on its face and as it applied to their exit-solicitation efforts.

Plaintiffs also sought to enjoin the State from enforcing the Florida statute against

them when they solicited voters leaving polling places on election day later in

August. As with the January election, the proposed charter amendment related to

nothing on the ballot in the August election.

The district court held oral argument just before the August election. The

next day, the district court entered a preliminary injunction enjoining the State

from enforcing the Florida statute against Plaintiffs at polling places on election

day. The district court concluded that the Florida statute was probably

4

unconstitutional as it applied to Plaintiffs’ exit-solicitation efforts because the State

had produced little evidence that the exit-solicitation ban was necessary to serve a

The district court refused to issue an injunction on the ground that the Florida statute is 4

facially unconstitutional. The district court, instead, granted the injunction on an “as applied”

basis: the State -- even extremely close to the polls -- could not enforce or threaten to enforce the

Florida statute “as to Plaintiffs’ peaceful, orderly and non-disruptive (1) solicitation of signatures

(2) for their petition to place an amendment of the Fort Myers City Charter on a future ballot (3)

from voters at polling places and early voting sites (4) after the voters have voted (5) during the

August 26, 2008 election and its early voting period.” 

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compelling interest or that it was sufficiently drawn to achieve that end. The State

appeals.

5

Standard of Review

We review a preliminary injunction for an abuse of discretion. Klay v.

United Healthgroup, Inc., 376 F.3d 1092, 1096 (11th Cir. 2004). A district court

abuses its discretion if it applies an incorrect legal standard, applies the law in an

unreasonable or incorrect manner, follows improper procedures in making a

determination, or makes findings of fact that are clearly erroneous. Id. We review

de novo questions of law. United States v. Endotec, Inc., 563 F.3d 1187, 1194

In late 2008, the district court concluded that it had no case or controversy before it and, 5

thus, dismissed the case after Plaintiffs alleged that they acquired the requisite number of

signatures to place the proposed charter amendment on a ballot. No party has argued, however,

that this appeal is moot or that we otherwise lack jurisdiction. We have considered the matter of

our jurisdiction independently, and we conclude that this appeal remains worthy of our attention

because the election-related issue involving the State and, at least, Plaintiff Florida State

Conference of the NAACP -- the issue of the right to engage in peaceful exit solicitation about

non-ballot issues near polling places -- is “capable of repetition, yet evading review.” Sierra

Club v. Martin, 110 F.3d 1551, 1554 (11th Cir. 1997) (preliminary injunction expired but appeal

not moot where seasonal nature of bird nesting made it likely that forest service would face

another injunction and where duration of injunction was too short to allow for appellate review

before injunction expired); see also Fed. Election Comm’n v. Wis. Right To Life, Inc., 127 S. Ct.

2652, 2663 (2007) (“We have recognized that the ‘capable of repetition, yet evading review’

doctrine, in the context of election cases, is appropriate when there are ‘as applied’ challenges as

well as in the more typical case involving only facial attacks. Requiring repetition of every

‘legally relevant’ characteristic of an as-applied challenge-down to the last detail-would

effectively overrule this statement by making this exception unavailable for virtually all

as-applied challenges.”) (internal quotation marks and citation omitted); Storer v. Brown, 94 S.

Ct. 1274, 1282 n.8 (1974) (although pertinent election was “long over,” appeal concerning

election-related statute not moot because “construction of the statute, an understanding of its

operation, and possible constitutional limits on its application, will have the effect of simplifying

future challenges, thus increasing the likelihood that timely filed cases can be adjudicated before

an election is held”).

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(11th Cir. 2009).

Discussion

A preliminary injunction is an “extraordinary and drastic remedy.”

McDonald’s Corp. v. Robertson, 147 F.3d 1301, 1306 (11th Cir. 1998) (quoting

All Care Nursing Serv., Inc. v. Bethesda Mem’l Hosp., Inc., 887 F.2d 1535, 1537

(11th Cir. 1989)). To secure an injunction, a party must prove four elements: (1) a

substantial likelihood of success on the merits; (2) irreparable injury absent an

injunction; (3) the injury outweighs whatever damage an injunction may cause the

opposing party; and (4) an injunction is not adverse to the public interest. Id.

The State challenges on appeal only the district court’s conclusion that

Plaintiffs established a substantial likelihood of success on the merits of their claim

that the Florida statute is unconstitutional as it applies to exit-solicitation efforts.

The State admits that the Florida statute infringes some on Plaintiffs’ right to

engage in political speech (see Meyer v. Grant, 108 S. Ct. 1886, 1892 (1988)) but

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contends that the restriction is necessary and narrowly tailored to protect the, at

least, equally critical right to vote free from intimidation, interference, and fraud.

In Burson v. Freeman, 112 S. Ct. 1846 (1992), the Supreme Court addressed

Plaintiffs contend that the Florida statute also infringes some on their First Amendment 6

right to engage in political association. But even if true, the additional infringement has no

material affect on the analysis otherwise applicable here; so we discuss it no further.

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the facial constitutionality of a Tennessee statute that proscribed campaign activity

within 100 feet of a polling place. Id. at 1848. Considering the Tennessee statute

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as a content-based restriction on political speech in a public forum, the statute

could survive only if it was “necessary to serve a compelling state interest” and

was “narrowly drawn to achieve that end.” Id. at 1851 (quoting Perry Educ. Ass’n

v. Perry Local Educators’ Ass’n, 103 S. Ct. 948, 955 (1983)).

The Supreme Court upheld the Tennessee statute. In doing so, a plurality

8

of the Supreme Court first reviewed whether Tennessee had a compelling interest

9

to support its statute. Tennessee offered two: (1) protecting voters from confusion

The Tennessee statute banned within 100 feet of a polling place “the display of 7

campaign posters, signs or other campaign materials, distribution of campaign materials, and

solicitation of votes for or against any person or political party or position on a question[.]” 

Burson, 112 S. Ct. at 1848. Like the Florida statute, which saves exit polling from its grasp, Fla.

Stat. § 102.031(4)(b), the Tennessee statute also did not restrict exit polling. Burson, 112 S. Ct.

at 1855. We express no view on the constitutionality of a statute that bans exit polling around

polling places. 

Justice Blackmun authored the plurality opinion, which Chief Justice Rehnquist and 8

Justices White and Kennedy joined. Justice Kennedy also filed a concurring opinion, and Justice

Scalia filed an opinion concurring in the judgment. Justice Stevens filed a dissenting opinion,

which Justices O’Connor and Souter joined. Justice Thomas did not participate in the decision.

Justice Scalia joined in the judgment, but not in the plurality opinion. Justice Scalia 9

reviewed the Tennessee statute under a less exacting standard than the strict scrutiny applied by

the other Justices because he believed that the statute did not restrict speech in a “traditional

public forum.” Id. at 1859–61 (Scalia, J., concurring in judgment). His justification, therefore,

seems to be broader than the plurality opinion. So, we look to the plurality opinion for guidance. 

Marks v. United States, 97 S. Ct. 990, 994 (1977) (“When a fragmented Court decides a case and

no single rationale explaining the result enjoys the assent of five Justices, the holding of the

Court may be viewed as that position taken by those Members who concurred in the judgments

on the narrowest grounds.”) (internal quotation marks omitted).

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and undue influence; and (2) preserving the integrity of the election process. Id. at

1851–52. The plurality agreed that those interests were sufficiently compelling to

warrant protection. Id.

The plurality then turned to whether the Tennessee statute was necessary to

serve those compelling interests. In typical cases involving strict-scrutiny review,

the Supreme Court would look to the state to offer evidence that the pertinent

statute is necessary to promote the compelling interest. See Eu v. San Francisco

County Democratic Cent. Comm., 109 S. Ct. 1013, 1021–23 (1989). But in

Burson, the plurality required Tennessee to produce no evidence of necessity.

Burson, 112 S. Ct. at 1856. Instead, the plurality relied on the long history of

regulation to combat election misconduct, the substantial consensus in favor of a

secret ballot secured by a campaign-free zone that emerged from that history, and

common sense to conclude “that some restricted zone around the voting area” was

necessary to secure Tennessee’s compelling interests. Id. (emphasis in original).

The plurality last examined whether the Tennessee statute was narrowly

tailored. To pass this test, a state normally must show that the pertinent statute

used the least restrictive means available to serve the compelling interest. See

Boos v. Barry, 108 S. Ct. 1157, 1168 (1988). The plurality recognized, however,

that it faced a unique situation because of the importance of protecting the right to

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vote and the difficulties in and dangers of requiring Tennessee to demonstrate the

effects of its statute on political stability. Burson, 112 S. Ct. at 1856–57. So the

10

plurality departed from the customary analysis and applied a modified “burden of

proof” under which the Tennessee statute was sufficiently tailored if it was

“reasonable” and did not “significantly impinge on constitutionally protected

rights.” Id. at 1857 (emphasis in original). The plurality concluded that the minor

geographic limitation in the Tennessee statute -- 100 feet -- satisfied this more

lenient standard. Id. The statute was constitutional.

The parties dispute the extent to which Burson affects this case. The State

says that the Florida statute is no different than the Tennessee statute in Burson

and, thus, the Florida statute should survive for the same reasons. Plaintiffs, on the

other hand, claim that the facts in Burson are materially different because there a

campaign worker wanted to solicit votes on election day, while here Plaintiffs aim

The plurality explained those difficulties and dangers this way:

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Elections vary from year to year, and place to place. It is therefore difficult to make

specific findings about the effects of a voting regulation. Moreover, the remedy for

a tainted election is an imperfect one. Rerunning an election would have a negative

impact on voter turnout. Thus, requiring proof that a 100-foot boundary is perfectly

tailored to deal with voter intimidation and election fraud would necessitate that a

State’s political system sustain some level of damage before the legislature could

take corrective action.

Burson, 112 S. Ct. at 1856–57 (internal quotation marks and footnote omitted). 

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only to seek the supporting signatures of voters -- who had already voted -- about a

non-ballot issue.

We accept that Burson does not bind us here; the material facts are different

in some ways. Nevertheless, we believe that the Burson plurality opinion is highly

persuasive; and we extend its reasoning to the facts of this case.

1. Compelling Interest

Under the Burson plurality’s standard, we must first examine whether the

State has a compelling interest to support its statute. The State contends that it

shares the same compelling interests as Tennessee in Burson: (1) protecting voters

from confusion and undue influence; and (2) preserving the integrity of the

election process. Plaintiffs take no issue with the presence or legitimacy of those

compelling interests in this case. Nor do we.

2. Necessity

Having identified the pertinent compelling interests, we turn to the

more difficult question of whether the Florida statute is necessary to serve those

interests. The State claims that it need not produce evidence of exit solicitors

intimidating voters or interfering with the election process to prove necessity.

Instead, the State asserts that it, like Tennessee in Burson, may rely on our

country’s long history of election regulation, the widespread agreement that

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emerged from that history, and common sense to show that the ban on exit

solicitation within 100 feet of a polling place is necessary to promote its

compelling interests.

Plaintiffs criticize this approach. They say that exit solicitation is a peaceful,

non-disruptive activity targeting only those voters who have already voted and

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claim that this “already-voted” feature distinguishes their conduct from the more

intimidating, violent, and unsavory behavior talked about in the Burson plurality

opinion. Plaintiffs, therefore, argue that the State may not rely on the historical

12

evidence of election abuse discussed in the Burson plurality opinion but must

instead offer its own proof that the ban on exit solicitation in the Florida statute is

necessary. Echoing the district court, Plaintiffs say that the State has produced no

Plaintiffs compare exit solicitation to exit polling. Plaintiffs contend that the Florida 11

statute cannot lawfully prohibit one and permit the other because, according to Plaintiffs, the

activities are constitutionally indistinguishable. But we disagree: exit polling does not include

advocating for the success of some political proposal or candidate. Like other courts before us,

we see fundamental differences between the two activities and, therefore, reject the comparison. 

See, e.g., Schirmer v. Edwards, 2 F.3d 117, 122 (5th Cir. 1993) (exit polling cases not applicable

to solicitation cases); Am. Broad. Co. v. Blackwell, 479 F. Supp. 2d 719, 738 (S.D. Ohio 2006)

(“[E]xit polling cannot reasonably be construed as a form of electioneering under any definition

of that term.”). Moreover, the plurality in Burson expressly said that the Tennessee statute did

not need to prohibit exit polling to survive strict-scrutiny review. Burson, 112 S. Ct. at 1855. 

Plaintiffs claim that the plurality in Burson found no history of electoral abuse by and 12

no history of election-reform efforts directed at exit solicitors. They cite as support the

following language in the plurality opinion: “[T]here is simply no evidence that political

candidates have used other forms of solicitation or exit polling to commit such electoral abuses.” 

Id. at 1856. But we believe that the plurality is referring in this dictum to “charitable and

commercial solicitation” and not, as Plaintiffs suggest, to forms of political canvassing like exit

solicitation. So we afford this argument little weight.

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such evidence.

About history, we agree with the State. We simply cannot accept that exit

solicitation is so different from the other political conduct highlighted in Burson to

compel a different result here. As we see it, commotion tied to exit solicitation is

as capable of intimidating and confusing the electorate and impeding the voting

process -- even deterring potential voters from coming to the polls -- as other kinds

of political canvassing or political action around the polls. This observation seems

especially true given the reality that polling places are of such a diverse size and

shape, including sometimes using the same doors to enter and exit the polling

place, that voters waiting to cast their ballot will often be close to and

indistinguishable from voters who have already done so. Although Plaintiffs

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suggest that election officials can police the polls to ensure that exit solicitation

remains peaceful and targets only voters who have already voted, we believe this

proposal places too great a burden on those officials to make split-second decisions

on who is being solicited, on how they are being solicited, and about what they are

being solicited: an invitation to controversy and more disturbances then and there.

Plaintiffs even acknowledged in their complaint when they described the method by 13

which they intended to engage in exit solicitation the difficulty in targeting only those voters who

have already voted: “A petition circulator will stand near the exit to the polling place, in a

position to maximize the likelihood of interacting with voters who have already cast their ballots

. . . .” (emphasis added). 

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But even in Plaintiffs’ imagined perfect world when absolutely only those

people who have voted are solicited, our belief does not waiver. The State wants

peace and order around its polling places, and we accord significant value to that

desire for it preserves the integrity and dignity of the voting process and

encourages people to come and to vote. See Buckley v. Am. Constitutional Law

Found., Inc., 119 S. Ct. 636, 640 (1999) (acknowledging that “there must be a

substantial regulation of elections if they are to be fair and honest and if some sort

of order, rather than chaos, is to accompany the democratic processes”) (quoting

Storer, 94 S. Ct. at 1279); Clean Up ‘84 v. Heinrich, 759 F.2d 1511, 1514 (11th

Cir. 1985) (“We recognize that the state has a significant interest in protecting the

orderly functioning of the election process. It must ensure its voters that they may

exercise their franchise without distraction, interruption, or harassment.”). Given

the example of history, if exit solicitation must be allowed close to the polls, it

takes little foresight to envision polling places awash with exit solicitors, some

competing (albeit peacefully) for the attention of the same voters at the same time

to discuss different issues or different sides of the same issue. And we accept it as

probable that some -- maybe many -- voters faced with running the gauntlet will

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refrain from participating in the election process merely to avoid the resulting

commotion when leaving the polls.

14

The Burson plurality opinion teaches us that the State need not wait for

actual interference or violence or intimidation to erupt near a polling place for the

State to act. The State may take precautions to protect and to facilitate voting;

15

and the pertinent history is broad enough to provide the proof of reasonableness for

a zone of order around the polls.

It is hard for State election officials to know the precise moment just before

solicitation becomes interference in the election process. And if an election is

disturbed, it is hard to know what the impact was on the election. The cost of a

disturbed election is too high to allow the State only to react to disturbances but not

to prevent disturbances. We, therefore, reject the contention that the State must

offer its own evidence demonstrating that the ban on exit solicitation is necessary

Indeed, although not necessary to our conclusion, the State produced evidence 14

confirming that many Florida voters have complained that their entrance to and exit from the

polls is like “running the gauntlet” and have indicated that “they will no longer participate in

elections unless their access to the polls is better protected by the law.”

In Burson, the plurality observed that Tennessee had other statutes that made it a crime 15

“to interfere with an election or to use violence or intimidation to prevent voting.” Burson, 112

S. Ct. at 1855. But the plurality recognized that Tennessee’s power to protect the voting process

was broader than just prohibiting actual interference, violence, or intimidation. Id. In a similar

way, the district court injunction limits the State to prohibiting only conduct that is disorderly,

disruptive, or not peaceful; but to ease and to protect voting, the State’s legitimate power under

the Federal Constitution goes beyond what the injunction would allow the State to do. The State

can do more to restrict political canvassing in a small zone around the polls. Thus, the injunction

cannot stand.

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to serve its compelling interests; our country’s long history of election regulation,

the consensus emerging from that history, and the practical need to keep voters and

voting undisturbed all prove that the ban is warranted.

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3. Narrowly Tailored

We last explore the breadth of the Florida statute. To prove that the Florida

statute is narrowly tailored, the State must show that the Florida Statute is

“reasonable and does not significantly impinge on constitutionally protected

rights.” Burson, 112 S. Ct. at 1857 (quoting Munro v. Socialist Workers Party,

17

107 S. Ct. 533, 537–38 (1986)) (emphasis added in Burson). The Florida statute

mirrors in many respects -- including the size of the restricted zone -- the

Tennessee statute upheld in Burson. And we conclude that the Florida statute is

sufficiently tailored to satisfy the pertinent standard.

Many other state legislatures seemingly share the belief that some solicitation-free zone 16

around polling places is necessary to protect voters from confusion and undue influence and to

preserve the integrity and dignity of the election process, as other states too have enacted law

markedly similar to the Florida statute. See, e.g., Cal. Elec. Code § 18370 (100-foot zone); Colo.

Rev. Stat. § 1-13-714 (100-foot zone); Ga. Code Ann. § 21-2-414(b) (150-foot zone); Idaho

Code Ann. § 18-2318(1) (100-foot zone); Mass. Gen. Laws ch. 54, § 65 (150-foot zone); Mich.

Comp. Laws § 168.744(2) (100-foot zone); Neb. Rev. Stat. § 32-1524(2) (200-foot zone); Utah

Code Ann. § 20A-3-501(2)(a) (150-foot zone).

The plurality in Burson cautioned that the modified “burden of proof” applies only 17

where the prohibited activity threatens to interfere with the act of voting itself or physically

interferes with voters attempting to cast their ballot. Burson, 112 S. Ct. at 1856 n.11. We

believe that exit solicitation of the kind in this case triggers the application of the Burson

plurality’s standard. 

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Conclusion

We accept that the right to engage in political discourse is “the essence of

self-government.” Garrison v. Louisiana, 85 S. Ct. 209, 216 (1964). But voting is

about the most important thing there is. And as history has taught us, the right of

political discourse is far from absolute: it must at times step aside so other

freedoms similarly pivotal to our republic can thrive. The Florida statute, which

balances the right to engage in political speech against the right to vote without

interference and harassment, represents one of those times.

We stress the short time (a few days a year) and small area (less than a

football field) in which the Florida statute suppresses some political speech around

the polls; Plaintiffs are free to solicit signatures unencumbered most days a year

and to solicit signatures outside the solicitation-free zone all days a year. And by

the way, we are not alone in our decision: other courts, in cases involving petitions,

have also upheld statutes establishing solicitation-free zones around polling

places. We believe that the sanctity of the voting process and the abuse it has

18

historically faced must allow the Florida legislature to exercise some foresight, to

For example, in United Food & Commercial Workers Local 1099 v. City of Sidney, 364 18

F.3d 738 (6th Cir. 2004), the Sixth Circuit Court of Appeals applied the Burson plurality’s

standard and affirmed the dismissal of a challenge to an Ohio statute that prohibited solicitation

within 100 feet of a polling place. Id. at 748. And earlier, in Schirmer, the Fifth Circuit Court of

Appeals, also relying on the Burson plurality’s standard, upheld a Louisiana statute that

prohibited solicitation about non-ballot issues within 600 feet of a polling place. Schirmer, 2

F.3d at 119.

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take precautions, and to prohibit questionable conduct near polling places before

that conduct proves its danger; a compromised election is too great a harm to

require otherwise.

We, therefore, conclude today that the Florida statute does not

violate the First Amendment by banning Plaintiffs from engaging in exit

solicitation about a non-ballot issue within 100 feet of polling places in Florida.

Accordingly, the district court abused its discretion in granting Plaintiffs a

preliminary injunction.

REVERSED.

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