[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 12-15738

________________________

D.C. Docket No. 1:12-cv-22282-WJZ

KARLA VANESSA ARCIA,

MELANDE ANTOINE, et al.,

 Plaintiffs-Appellants,

 versus

FLORIDA SECRETARY OF STATE, 

 Defendant-Appellee,

LUIS I. GARCIA, et al.,

 Intervenor Defendants.

________________________

Appeal from the United States District Court

for the Southern District of Florida

________________________

(April 1, 2014)

Before MARTIN, JORDAN and SUHRHEINRICH,

* Circuit Judges.

MARTIN, Circuit Judge:

 * Honorable Richard F. Suhrheinrich, United States Circuit Judge for the Sixth Circuit, sitting by 

designation.

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Section 8(c)(2)(A) of the National Voter Registration Act (the 90 Day 

Provision) requires states to “complete, not later than 90 days prior to the date of a 

primary or general election for Federal office, any program the purpose of which is 

to systematically remove the names of ineligible voters from the official lists of 

eligible voters.” 42 U.S.C. § 1973gg-6(c)(2)(A). This provision became the center 

of a legal dispute in 2012, when a group of individual voters and organizations

sued Florida Secretary of State Kenneth W. Detzner. These plaintiffs argued that 

Florida was violating the 90 Day Provision by conducting a program to 

systematically remove suspected non-citizens from the voter rolls within 90 days 

of a federal election. The District Court denied the plaintiffs’ motions for a 

preliminary injunction and summary judgment, and entered judgment in favor of

Secretary Detzner. The plaintiffs now appeal. 

Because we conclude that Florida’s program was an attempt to 

systematically remove names from the voter rolls in violation of the 90 Day 

Provision, we reverse and remand.

I. FACTS AND PROCEDURAL HISTORY

This case concerns Florida’s efforts to remove the names of ineligible voters 

from the State’s voter rolls prior to the 2012 primary and general elections. 

Concerned about people who are not citizens casting ballots in Florida elections, 

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Secretary of State Detzner engaged in two separate programs to identify and 

remove non-citizens from the Florida voter rolls. 

Secretary Detzner’s first program began in advance of the primary election

and used records from the Department of Highway Safety and Motor Vehicles 

(DHSMV). The Secretary started by compiling a list of registered voters who had 

previously presented the DHSMV with identification—such as green cards or 

foreign passports—suggesting that they may be non-citizens. After putting 

together this list, he sent a portion of it to the State Supervisor of Elections in each 

county, instructing them to (1) review the names on the list, (2) conduct additional 

research using “whatever other sources you have,” and (3) initiate a notice and 

removal process. Secretary Detzner suspended the program at the end of April 

2012. Records indicate, however, that suspected non-citizens continued to be 

removed from the voter rolls during May and June, which was less than 90 days 

before the Florida primary election. 

This first effort by Secretary Detzner to identify non-citizens was far from 

perfect. For example, Plaintiffs Karla V. Arcia and Melande Antoine were

identified as non-citizen voters to be removed from the voter rolls. This, despite 

the fact that they were both United States citizens eligible to vote in the 2012 

elections. Also, organizations like the Florida Immigration Coalition, Inc., the 

National Congress for Puerto Rican Rights, and 1199SEIU United Healthcare 

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Workers East (1199SEIU) diverted resources from their regularly-conducted 

programs and activities to counteract the effects of the Secretary’s program. These 

efforts included locating and assisting members who had been wrongly identified 

as non-citizens to ensure that they were able to vote. 

Despite these shortcomings in his initial program, Secretary Detzner 

renewed his efforts to remove non-citizens from the voter rolls in advance of the 

2012 general election. Rather than use the DHSMV records, this second program 

relied on the Department of Homeland Security’s Systematic Alien Verification for 

Entitlements (SAVE) database. Secretary Detzner also announced that he would 

not wait until after the general election to implement his program. Even though 

there were less than 90 days before the general election, Secretary Detzner stated 

publicly that he planned to forward the names of registered voters identified as 

non-citizens in the SAVE database to State Supervisors. 

This case began on June 19, 2012, when the plaintiffs first challenged

Secretary Detzner’s efforts to remove non-citizens prior to the Florida primary 

election. Among other things, the plaintiffs alleged that they were entitled to 

declaratory and injunctive relief because the Secretary’s actions were barred by the 

90 Day Provision. After Secretary Detzner announced that he would resume the 

removal of purported non-citizens from the voter rolls using the SAVE database, 

the plaintiffs amended their complaint, arguing that the Secretary’s program still 

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violated the NVRA’s 90 Day Provision because of the proximity to the general 

election. The plaintiffs sought a preliminary injunction and summary judgment. 

The District Court found that the 90 Day Provision did not apply to the 

Secretary’s efforts to remove non-citizens from the voter rolls and denied the 

plaintiffs’ motions for an injunction and summary judgment. At the plaintiffs’

request, the District Court also entered judgment as a matter of law in favor of 

Secretary Detzner. Plaintiffs now appeal this final judgment.

1

II. JURISDICTIONAL ISSUES

Before reaching the merits, we must first determine whether we have Article 

III jurisdiction over the parties and issues presented here. In particular, we must 

decide (1) whether the plaintiffs have standing and (2) whether this case is moot 

because the 2012 elections have passed.

A. STANDING

Secretary Detzner claims that neither the individual nor the organizational 

plaintiffs have standing because they did not suffer an “injury-in-fact.” Lujan v. 

Defenders of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 2136 (1992). “We 

review issues of standing de novo.” Hollywood Mobile Estates Ltd. v. Seminole 

Tribe of Fla., 641 F.3d 1259, 1264 (11th Cir. 2011). Standing is determined at the 

 1 The plaintiffs filed a motion to expedite this appeal, arguing that the Secretary’s program risked 

disfranchising eligible voters incorrectly identified as non-citizens on the eve of the general 

election. Based on Secretary Detzner’s assurances that no citizens would be mistakenly removed 

from the voter rolls before Election Day, this Court denied the plaintiffs’ motion to expedite their 

appeal. 

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time the plaintiff’s complaint is filed. Focus on the Family v. Pinellas Suncoast 

Transit Auth., 344 F.3d 1263, 1275 (11th Cir. 2003).

“‘Injury in fact’ reflects the statutory requirement that a person be ‘adversely 

affected’ or ‘aggrieved,’ and it serves to distinguish a person with a direct stake in

the outcome of a litigation—even though small—from a person with a mere 

interest in the problem.” United States v. Students Challenging Regulatory 

Agency Procedures, 412 U.S. 669, 689 n.14, 93 S. Ct. 2405, 2417 n.14 (1973)

(noting that “an identifiable trifle is enough”). An injury-in-fact involves “an 

invasion of a legally protected interest which is (a) concrete and particularized, and 

(b) actual or imminent, not conjectural or hypothetical.” See Lujan, 504 U.S. at 

560, 112 S. Ct. at 2136 (quotation marks and internal citations omitted).

1. Individual Plaintiffs

The individual plaintiffs, Ms. Arcia and Ms. Antoine, have standing because 

(1) they were directly injured by Secretary Detzner’s first program before the 2012 

primary election and (2) at the time they filed their complaint, they had established 

a probable future injury allowing them to prospectively challenge Secretary 

Detzner’s second program before the 2012 general election. 

Ms. Arcia and Ms. Antoine had standing to challenge Secretary Detzner’s 

first program before the 2012 primary election because they were directly injured 

by it when they were wrongly identified as non-citizens. Even though they were 

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ultimately not prevented from voting, an injury like theirs is sufficient to confer 

standing. See Common Cause/Ga. v. Billups, 554 F.3d 1340, 1351–52 (11th Cir. 

2009) (finding that requirement to produce photo identification to vote was an 

injury sufficient to confer standing even though the right to vote was not “wholly 

denied”); Charles H. Wesley Educ. Found., Inc. v. Cox, 408 F.3d 1349, 1352 (11th 

Cir. 2005) (finding sufficient the injury of being unable to vote in home precinct 

because state government rejected voter’s use of the federal registration form to 

change her address).

Ms. Arcia and Ms. Antoine also have standing to prospectively challenge the 

Secretary’s second attempt to remove non-citizens from the voter rolls using the 

SAVE database. When the harm alleged is prospective, as it was here, a plaintiff 

can satisfy the injury-in-fact requirement by showing imminent harm. Fla. State 

Conf. of the NAACP v. Browning, 522 F.3d 1153, 1160–61 (11th Cir. 2008). 

While the threatened future injury cannot be merely hypothetical or conjectural, 

probabilistic harm is enough. Id. at 1162–63. Because Ms. Arcia and Ms. Antoine 

were naturalized U.S. citizens from Nicaragua and Haiti respectively, there was a 

realistic probability that they would be misidentified due to unintentional mistakes 

in the Secretary’s data-matching process. See id. at 1163–64 (distinguishing 

foreseeable injuries from those based on assumptions and conjecture). This being 

the case, Ms. Arcia and Ms. Antoine sufficiently established standing based on the 

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potential errors that could occur when the Secretary attempted to confirm their 

immigration status in various state and federal databases in the hurried 90-day 

window before the election.

2. Organizational Plaintiffs

The organizational plaintiffs also have standing to challenge Secretary 

Detzner’s program based on both a diversion-of-resources theory and an 

associational standing theory. 

Under the diversion-of-resources theory, an organization has standing to sue 

when a defendant’s illegal acts impair the organization’s ability to engage in its 

own projects by forcing the organization to divert resources in response. Havens 

Realty Corp. v. Coleman, 455 U.S. 363, 379, 102 S. Ct. 1114, 1124 (1982) 

(“[C]oncrete and demonstrable injury to the organization’s activities—with the 

consequent drain on the organization’s resources—constitutes far more than simply 

a setback to the organization’s abstract social interests.”). For example, our 

precedent provides that organizations can establish standing to challenge election 

laws by showing that they will have to divert personnel and time to educating

potential voters on compliance with the laws and assisting voters who might be left

off the registration rolls on Election Day. See Browning, 522 F.3d at 1165–66. 

Here, all three of the organizational plaintiffs—the Florida Immigrant 

Coalition, Inc., the National Congress for Puerto Rican Rights, and 1199SEIU—

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submitted affidavits showing they have missions that include voter registration and 

education, or encouraging and safeguarding voter rights, and that they had diverted 

resources to address the Secretary’s programs. A representative from 1199SEIU 

also testified that after some of its members were identified as potential noncitizens before the primary election, the organization expended resources to locate 

and assist the members to ensure that they were able to vote.

2

 This redirection of 

resources to counteract the Secretary’s removal program is a concrete and 

demonstrable injury, not an “abstract social interest[].” Havens Realty Corp., 455 

U.S. at 379, 102 S. Ct. at 1124.

The organizational plaintiffs also have standing to challenge Secretary 

Detzner’s programs under an associational standing theory. An organizational 

plaintiff has standing to enforce the rights of its members “when its members 

would otherwise have standing to sue in their own right, the interests at stake are 

germane to the organization’s purpose, and neither the claim asserted nor the relief 

requested requires the participation of individual members in the lawsuit.” Friends 

of the Earth, Inc., v. Laidlaw Envt’l Servs. (TOC), Inc., 528 U.S. 167, 181, 120 S. 

Ct. 693, 704 (2000). Based on our review of the affidavits provided on behalf of 

the organizational plaintiffs, we have concluded that the interests at stake in this 

 2 This fact, together with Mr. Arcia and Ms. Antoine being included on the Secretary’s list of 

purported non-citizens, distinguish this case from Clapper v. Amnesty International USA, ___ 

U.S. ___, 133 S. Ct. 1138 (2013), in which the Court found the plaintiffs’ theory of standing 

“relie[d] on a highly attenuated chain of possibilities.” Id. at 1148. 

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case are germane to the purposes and goals of the organizations. Further, the

declaratory and injunctive relief sought by the organizations does not require the 

individual participation of the organizations’ members. Browning, 522 F.3d at 

1160. The only remaining issue is whether the members of the organizations 

themselves would have standing. We conclude that they do.

In order to sue on behalf of its members, organizational plaintiffs need not 

establish that all of their members are in danger of suffering an injury. Rather, the 

rule in this Circuit is that organizational plaintiffs need only establish that “at least 

one member faces a realistic danger” of suffering an injury. Id. at 1163. As in

Browning, the organizational plaintiffs here argue that the process of matching 

voters across various databases creates a foreseeable risk of false positives and 

mismatches based on user errors, problems with the data-matching process, flaws 

in the underlying databases, and similarities in names and birthdates. See id. at 

1163 (finding that “the injuries are foreseeable and the expected results of 

unconscious and largely unavoidable human errors in transcription”). The three 

organizational plaintiffs also represent a large number of people, like Ms. Arcia 

and Ms. Antoine, who face a realistic danger of being identified in the Secretary’s 

removal programs because of their names or status as naturalized citizens. See id.

(finding that large organizations like the NAACP had standing because there was a 

high probability that at least one of the members would be mistakenly 

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mismatched). On this record, the organizational plaintiffs have sufficiently 

established their standing to bring this action on behalf of their members.

B. MOOTNESS

Secretary Detzner next argues that the plaintiffs’ claims are moot because 

the 2012 elections have passed. We retain jurisdiction to decide this case, 

however, because the exception to mootness for disputes “capable of repetition yet 

evading review” applies here.

The “capable of repetition, yet evading review” exception to the mootness 

doctrine applies where (1) the challenged action is in its duration too short to be 

fully litigated prior to cessation or expiration, and (2) there is a reasonable 

expectation that the same complaining party will be subject to the same action 

again. Davis v. FEC, 554 U.S. 724, 735, 128 S. Ct. 2759, 2769–70 (2008)

(quotation marks omitted) (rejecting mootness argument despite fact that election 

had passed). Both of these requirements are met here.

First, the plaintiffs are correct that Secretary Detzner’s actions were too 

short in duration to be fully litigated prior to their cessation. In election cases, we 

have stated that there is often “not sufficient time between the filing of the 

complaint and the election to obtain judicial resolution of the controversy before 

the election.” Teper v. Miller, 82 F.3d 989, 992 n.1 (11th Cir. 1996). Election 

cases also frequently present issues that will persist in future elections, and 

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resolving these disputes can simplify future challenges. See id. Here, the plaintiffs 

could not challenge Secretary Detzner’s program until it became clear that it would 

continue past the 90th day before an election, giving the plaintiffs just three

months before the case became moot. Based on this record, we conclude that the 

Secretary’s actions here were in their duration too short to be fully litigated prior to 

their cessation or expiration. See Bourgeois v. Peters, 387 F.3d 1303, 1309 (11th 

Cir. 2004) (“[W]e conclude that one year is an insufficient amount of time for a 

district court, circuit court of appeals, and Supreme Court to adjudicate the typical 

case.”). 

Second, there is a reasonable expectation that these plaintiffs will be 

subjected to Secretary Detzner’s program again. The District Court’s ruling was 

not limited to the 2012 elections or the specific program employed by the Secretary 

in 2012. Rather, it interpreted the 90 Day Provision generally to allow systematic 

removal programs based on citizenship during the last 90 days before an election. 

The Secretary has also not offered to refrain from similar programs within the 90-

day window in the future. Thus, there is a reasonable expectation that the plaintiffs

will be subject to the same action again. 

For these reasons, we have jurisdiction over this case, even though the 2012 

elections have passed. 

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III. DISCUSSION

We now turn to the merits of this dispute. The primary issue here involves 

the statutory interpretation of the 90 Day Provision, which is codified at 42 U.S.C. 

§ 1973gg-6(c)(2)(A). The 90 Day Provision requires that:

A State shall complete, not later than 90 days prior to the date of a 

primary or general election for Federal office, any program the 

purpose of which is to systematically remove the names of ineligible 

voters from the official lists of eligible voters.

42 U.S.C. § 1973gg-6(c)(2)(A). The issue presented is whether “any program . . . 

to systematically remove the names of ineligible voters” includes a program like 

the one initiated by Secretary Detzner to remove non-citizens from the voter rolls 

less than 90 days before the 2012 elections. 

A. PLAIN MEANING

“As in all cases involving statutory construction, our starting point must be 

the language employed by Congress, and we assume that the legislative purpose is 

expressed by the ordinary meaning of the words used.” Am. Tobacco Co. v. 

Patterson, 456 U.S. 63, 68, 102 S. Ct. 1534, 1537 (1982) (quotation marks and 

internal citations omitted). “Courts must assume that Congress intended the 

ordinary meaning of the words used, and absent a clearly expressed legislative 

intent to the contrary, that language is generally dispositive.” Gonzalez v. 

McNary, 980 F.2d 1418, 1420 (11th Cir. 1993) (quotation marks omitted). 

Because this is a case involving statutory construction, our first task is to determine 

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whether Secretary Detzner’s program is barred under the plain meaning of the 90 

Day Provision. We believe that it is. 

First, the purpose of Secretary Detzner’s program was clearly to remove the 

names of “ineligible voters” from the Florida voter rolls. The National Voter 

Registration Act (NVRA) is premised on the assumption that citizenship is one of 

the requirements for eligibility to vote. See, e.g., 42 U.S.C. §§ 1973gg3(c)(2)(C)(i), 1973gg-5(a)(6)(A)(i)(I), 1973gg-7(b)(2)(A) (requiring certain voter 

registration forms to state or specify “each eligibility requirement (including 

citizenship)” (emphasis added)). Thus, Secretary Detzner’s program to remove 

non-citizens was a program to remove “ineligible voters.”

Second, Secretary Detzner does not deny that his program was an attempt to 

“systematically” remove ineligible voters from the voter rolls. Although the 

statute provides no definition for the word “systematically” or “systematic,” we 

agree that Secretary Detzner’s program was a “systematic” program under any 

meaning of the word. Secretary Detzner’s program did not rely upon 

individualized information or investigation to determine which names from the 

voter registry to remove. Rather, the Secretary used a mass computerized datamatching process to compare the voter rolls with other state and federal databases, 

followed by the mailing of notices. Certainly, it is telling that the database that 

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Secretary Detzner used before the general election—SAVE—stands for Systematic

Alien Verification for Entitlements. 

Finally, the phrase “any program” suggests that the 90 Day Provision has a 

broad meaning. Both the Supreme Court and this Court have had occasion to 

consider the meaning of the word “any.” In United States v. Gonzalez, the 

Supreme Court noted that “[r]ead naturally, the word ‘any’ has an expansive 

meaning, that is ‘one or some indiscriminately of whatever kind.’” 520 U.S. 1, 5, 

117 S. Ct. 1032, 1035 (1997) (quoting Webster’s Third New International 

Dictionary 97 (1976)). In the same way, this Court has held that when Congress 

does not add any language limiting the breadth of that word, “any” means all. 

Merritt v. Dillard Paper Co., 120 F.3d 1181, 1186 (11th Cir. 1997); Lyes v. City of 

Riviera Beach, 166 F.3d 1332, 1337 (11th Cir. 1999); United States v. Castro, 837 

F.2d 441, 445 (11th Cir. 1988) (concluding that “any” meant “every” and “all”). 

“This long history of established meaning is important, because we readily 

presume that Congress knows the settled legal definition of the words it uses, and 

uses them in the settled sense.” Harris v. Garner, 216 F.3d 970, 974 (11th Cir. 

2000). The fact that the provision now before us applies to “any program” strongly 

suggests that Congress intended the 90 Day Provision to encompass programs of 

any kind, including a program like Secretary Detzner’s to remove non-citizens. 

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B. STATUTORY CONTEXT AND PURPOSE

Thus, the plain meaning of the 90 Day Provision indicates that Secretary 

Detzner’s actions fall under the category of “any program . . . to systematically 

remove the names of ineligible voters.” 42 U.S.C. § 1973gg-6(c)(2)(A). The 

language of the 90 Day Provision, however, is not the end of our inquiry. “In 

expounding a statute, we must not be guided by a single sentence or member of a 

sentence, but look to the provisions of the whole law, and to its policy.” In re

Colortex, 19 F.3d 1371, 1375 (11th Cir. 1994) (quotation marks omitted). Here, 

the statutory context and policy of the NVRA further buttresses our conclusion that 

the plain meaning of “any program . . . to systematically remove the names of 

ineligible voters” was intended by Congress to include programs like Secretary 

Detzner’s. 

First, Congress expressly allowed for a number of exceptions to the 90 Day 

Provision, and an exception for removals of non-citizens is not one of them. 

Directly after the 90 Day Provision, the statute includes a limiting provision, which 

states:

[The 90 Day Provision] shall not be construed to preclude—(i) the 

removal of names from official lists of voters on a basis described in 

paragraph (3)(A) or (B) or (4)(A) of subsection (a) of this section; or 

(ii) correction of registration records pursuant to this subchapter

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42 U.S.C. § 1973gg-6(c)(2)(B). Thus the limiting provision creates an exception 

in the 90 Day Provision for “correction of registration records”3 and also directs us 

to several of the exceptions in § 1973gg-6(a) (the General Removal Provision). 

The General Removal Provision, which governs the removal of voters at any time,

states that the names of registrants may not be removed from the voter rolls except:

(3)(A) at the request of the registrant; (B) as provided by State law, by 

reason of criminal conviction or mental incapacity . . .

(4)(A) the death of the registrant; or (B) a change in the residence of 

the registrant . . . 

Id. § 1973gg-6(a)(3)–(4). Reading these two provisions together, the NVRA

expressly allows states to conduct three types of removals during the final 90 days 

before a federal election. They are removals (1) at the request of the registrant; (2) 

as provided by State law, by reason of criminal conviction or mental incapacity; 

and (3) upon death of the registrant. See id. § 1973gg-6(c)(2)(B) (citing id.

§ 1973gg-6(a)(3)–(4)). 

Noticeably absent from the list of exceptions to the 90 Day Provision is any 

exception for removal of non-citizens. “Where Congress explicitly enumerates 

certain exceptions to a general prohibition, additional exceptions are not to be 

implied, in the absence of evidence of a contrary legislative intent.” Andrus v. 

Glover Constr. Co., 446 U.S. 608, 616–617, 100 S. Ct. 1905, 1910 (1980); see

 3 The Secretary has not argued that his program constitutes a “correction” of registration records.

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also United States v. Brockamp, 519 U.S. 347, 352, 117 S. Ct. 849, 852 (1997) 

(observing that an “explicit listing of exceptions” indicates that “Congress did not 

intend courts to read other unmentioned, open-ended, ‘equitable’ exceptions into 

the statute”). The fact that Congress did not expressly include removals based on 

citizenship in its exhaustive list of exceptions to the 90 Day Provision is good 

evidence that such removals are prohibited.

4

Finally, the stated purposes of the National Voter Registration Act further 

support our reading of the 90 Day Provision. The NVRA states that its purposes 

are: 

(1) to establish procedures that will increase the number of eligible 

citizens who register to vote in elections for Federal office;

(2) to make it possible for Federal, State, and local governments to 

implement this Act in a manner that enhances the participation of 

eligible citizens as voters in elections for Federal office;

(3) to protect the integrity of the electoral process; and 

(4) to ensure that accurate and current voter registration rolls are 

maintained. 

42 U.S.C. § 1973gg(b). 

 4 Secretary Detzner suggests that the exception for removals “as provided by State law, by reason 

of criminal conviction or mental incapacity” could be read to authorize the removal of noncitizens from the voter rolls. Like the District Court, we reject this interpretation. An exception 

for any removal “as provided by State law” would render the 90 Day Provision completely 

superfluous. See In re Griffith, 206 F.3d 1389, 1393 (11th Cir. 2000) (“[C]ourts should disfavor 

interpretations of statutes that render language superfluous . . . .”) (quotation marks omitted).

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As amici points out, the 90 Day Provision is designed to carefully balance 

these four competing purposes in the NVRA. Brief of Current and Former 

Election Officials as Amici Curiae, 14–15. For example, by limiting its reach to 

programs that “systematically” remove voters from the voter rolls, the 90 Day 

Provision permits removals based on individualized information at any time. 

According to amici, individualized removals are safe to conduct at any time

because this type of removal is usually based on individual correspondence or 

rigorous individualized inquiry, leading to a smaller chance for mistakes. 

For programs that systematically remove voters, however, Congress decided 

to be more cautious. At most times during the election cycle, the benefits of 

systematic programs outweigh the costs because eligible voters who are incorrectly 

removed have enough time to rectify any errors. In the final days before an 

election, however, the calculus changes. Eligible voters removed days or weeks 

before Election Day will likely not be able to correct the State’s errors in time to 

vote. This is why the 90 Day Provision strikes a careful balance: It permits 

systematic removal programs at any time except for the 90 days before an election

because that is when the risk of disfranchising eligible voters is the greatest.

C. SECRETARY DETZNER’S INTERPRETATION

Secretary Detzner responds that interpreting the 90 Day Provision to prohibit 

systematic removals of non-citizens would create grave constitutional concerns. 

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Because the 90 Day Provision and the General Removal Provision share many of 

the same exceptions, see 42 U.S.C. § 1973gg-6(c)(2)(B), Secretary Detzner 

believes that the statutory text of the NVRA provides us with only two options: 

either non-citizens may be excluded at any time, or not at all. The latter option, 

according to Secretary Detzner, would dilute the votes of citizens and trample on 

the rights of states to regulate the qualifications and functions of voters. See

Williams v. Rhodes, 393 U.S. 23, 34, 89 S. Ct. 5, 12 (1968) (“[T]he State is left 

with broad powers to regulate voting, which may include laws relating to the 

qualifications and functions of electors.”). 

We reject Secretary Detzner’s attempts to have us decide today whether both 

the General Removal Provision and the 90 Day Provision allow for removals of 

non-citizens. Certainly an interpretation of the General Removal Provision that 

prevents Florida from removing non-citizens would raise constitutional concerns 

regarding Congress’s power to determine the qualifications of eligible voters in 

federal elections. Cf. Arizona v. Inter Tribal Council of Arizona, Inc., ___ U.S. 

___, 133 S. Ct. 2247, 2257 (2013) (“Arizona is correct that the Elections Clause 

empowers Congress to regulate how federal elections are held, but not who may 

vote in them.”). We are not convinced, however, that the Secretary’s perceived 

need for an equitable exception in the General Removal Provision also requires us 

to find the same exception in the 90 Day Provision. None of the parties before us 

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have argued that we would reach an unconstitutional result in this case if we found 

that the 90 Day Provision prohibits systematic removals of non-citizens. 

Constitutional concerns would only arise in a later case which squarely presents

the question of whether the General Removal Provision bars removal of noncitizens altogether. And before we ever get that case, Congress could change the 

language of the General Removal Provision to assuage any constitutional concerns. 

With this in mind, we will confine our ruling to apply to the plain meaning of the 

90 Day Provision and decline Secretary Detzner’s invitation to go further.

Secretary Detzner next argues that in drafting the NVRA, Congress only 

contemplated the removal of people who were once entitled to vote, not the 

removal of people who never had eligibility (like non-citizens). In support of this 

distinction, Secretary Detzner argues that non-citizens are not technically 

“registrants,” and removing them from the voter rolls is not really a “removal”

because the non-citizens on the voter rolls were never supposed to be there from 

the start. He also observes that all the exceptions to the General Removal 

Provision relate to voters who become ineligible (like those who become felons or 

mentally incapacitated) rather than those voters who are ineligible at the time of 

their registration (like non-citizens). 

At the outset, we are skeptical of Secretary Detzner’s arguments about what 

Congress may or may not have contemplated when drafting the NVRA. Our job is 

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to honor the broad statutory language in the 90 Day Provision, which 

unambiguously covers programs like Secretary Detzner’s. See Oncale v. 

Sundowner Offshore Servs., Inc., 523 U.S. 75, 79, 118 S. Ct. 998, 1002 (1998) 

(“But statutory prohibitions often go beyond the principal evil to cover reasonably 

comparable evils, and it is ultimately the provisions of our laws rather than the 

principal concerns of our legislators by which we are governed.”); Pa. Dep’t of 

Corr. v. Yeskey, 524 U.S. 206, 212, 118 S. Ct. 1952, 1956 (1998) (“[T]he fact that 

a statute can be applied in situations not expressly anticipated by Congress does 

not demonstrate ambiguity. It demonstrates breadth.” (quotation marks omitted)). 

We are not allowed to engage in “purpose-driven statutory interpretation at the 

expense of specific provisions.” Myers v. TooJay’s Mgmt. Corp., 640 F.3d 1278, 

1286 (11th Cir. 2011) (quotation marks omitted); see id. (“When presented with 

the plain text of a statute, we do not gaze at it blurry-eyed, attempting to see some 

hidden image formed by the broad purpose that lies behind the legislation.”). 

We also reject Secretary Detzner’s suggestion that there is a categorical 

difference between (1) registrants who are ineligible to vote on account of their 

citizenship and (2) registrants who are ineligible to vote because of their criminal 

history or mental capacity. Registrants in any of those categories could be 

ineligible to vote at the time of their registration or they could lose their eligibility 

later. For example, while some voters lose their eligibility to vote after they 

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register because of a criminal conviction or mental incapacity, other voters may 

have been ineligible for the same reasons at the time of their registration. In the 

same way, while Secretary Detzner is correct that a non-citizen registrant may have 

been ineligible to vote at the time that he registered, a citizen could also lose his 

citizenship after registering, thereby losing his eligibility to vote. See 8 U.S.C. 

§ 1481(a)(5) (describing the procedure for a United States citizen to renounce his 

or her U.S. citizenship). Thus, we do not accept Secretary Detzner’s argument that 

the NVRA distinguishes between the removals of registered voters who become 

ineligible to vote and registrants who were never eligible in the first place.

Finally, Secretary Detzner’s limited interpretation of the 90 Day Provision 

would also require us to conclude—as the District Court did—that the 90 Day 

Provision only prohibits the removal of registrants who become ineligible to vote 

after moving to a different state. This is because the 90 Day Provision adopts all of 

the exceptions from the General Removal Provision except for the one allowing for 

removals based on a change in residence. See 42 U.S.C. § 1973gg-6(c)(2)(B). 

Such an interpretation, however, would functionally eviscerate the meaning of the 

phrase “any program” in the 90 Day Provision. See United States v. Ballinger, 395 

F.3d 1218, 1236 (11th Cir. 2005) (noting that it is “a cardinal principle of statutory 

construction” that “a statute ought, upon the whole, to be so construed that, if it can 

be prevented, no clause, sentence, or word shall be superfluous, void, or 

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insignificant”) (quoting TRW Inc. v. Andrews, 534 U.S. 19, 31, 122 S. Ct. 441, 

449 (2001)). Surely when Congress wrote that the 90 Day Provision applied to 

“any program,” it intended for the provision to apply to more than just programs 

aimed at voters who have moved. If Congress wanted such a limited result, it 

could have said so. See CBS Inc. v. PrimeTime 24 Joint Venture, 245 F.3d 1217, 

1226 (11th Cir. 2001) (“[W]here Congress knows how to say something but 

chooses not to, its silence is controlling.” (quotation marks omitted)). As a result, 

we cannot accept Secretary Detzner’s interpretation.

In closing, we emphasize that our interpretation of the 90 Day Provision 

does not in any way handcuff a state from using its resources to ensure that noncitizens are not listed in the voter rolls. The 90 Day Provision by its terms only 

applies to programs which “systematically” remove the names of ineligible voters. 

As a result, the 90 Day Provision would not bar a state from investigating potential 

non-citizens and removing them on the basis of individualized information, even 

within the 90-day window. All that the 90 Day Provision prohibits is a program 

whose purpose is to “systematically remove the names of ineligible voters” from 

the voter rolls within the last 90 days before a federal election. 42 U.S.C. 

§ 1973gg-6(c)(2)(A). 

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IV. CONCLUSION

For these reasons, we reverse the District Court’s grant of judgment as a 

matter of law to Secretary Detzner and remand with instructions to enter an order 

(1) declaring that Secretary Detzner’s actions here were in violation of the 90 Day 

Provision of the NVRA; and (2) granting such further relief as the needs and 

interests of justice require. 

REVERSED AND REMANDED.

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JORDAN, Circuit Judge, concurring: 

As Judge Martin correctly explains, the plain language of the so-called 90-

Day Provision, 42 U.S.C. § 1973gg-6(c)(2)(A), prohibits states from using 

programs, like Florida’s, to systematically remove suspected non-citizens from the 

voter rolls within 90 days of a federal election. There is little room for textual 

debate given the use of broad statutory language directed at “any program” to 

systematically remove ineligible voters from the rolls, and the failure to include 

lack of citizenship as one of the express exceptions to the bar against systematic 

removals during the 90-day quiet period. See Lamie v. U.S. Trustee, 540 U.S. 526, 

534 (2004) (“[W]hen the statute’s language is plain, the sole function of the 

courts—at least where the disposition required by the text is not absurd—is to 

enforce it according to its terms.”) (internal quotation marks omitted). Indeed, if 

the 90-Day Provision spelled out the exceptions to the bar on systematic removals, 

instead of cross-referencing them from the General Removal Provision (§ 1973gg6(a)(3)(A)-(B) & (4)(A)), the outcome in this case would be the statutory 

equivalent of a slam dunk, because the text would read like so:

(2)(A) A State shall complete, not later than 90 days prior to the date 

of a primary or general election for Federal office, any program the 

purpose of which is to systematically remove the names of ineligible 

voters from the official lists of eligible voters.

(B) Subparagraph (A) shall not be construed to preclude—

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(i) the removal of names from official lists of voters [at the 

request of a registrant; as provided by State law, by reason of 

criminal conviction or mental incapacity; or the death of the 

registrant]; or

(ii) correction of registration records pursuant to this 

subchapter.

This case is difficult because the exceptions to the 90-Day Provision also 

constitute (with slight changes in language) the permissible bases for the removal 

of persons from the voter rolls at any time under the General Removal Provision, 

and an “established canon of construction [is] that similar language contained 

within the same section of statute must be accorded a consistent meaning.” Nat’l 

Credit Union Admin. v. First Nat’l Bank & Trust Co., 522 U.S. 479, 501 (1998). If 

the limited exceptions to the 90-Day Provision mean that states cannot use 

systematic programs to remove non-citizens from the voter rolls within 90 days of 

a federal election, then—because of the symmetry of the 90-Day Provision and the 

General Removal Provision—it would appear to follow that states also cannot 

remove non-citizens from the voter rolls at any time. See United States v. Florida,

870 F. Supp. 2d 1346, 1349 (N.D. Fla. 2012). Such a result is instinctively 

difficult to accept, and may require courts to decide to what extent Congress can 

constitutionally limit the states’ authority to determine the qualifications of eligible 

voters in federal elections. See U.S. Const. art. I, §§ 2, 4; Arcia v. Detzner, 908 F. 

Supp. 2d 1276, 1284 (S.D. Fla. 2012). Cf. Arizona v. Inter Tribal Council of 

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Arizona, Inc., 133 S. Ct. 2247, 2258-59 (2013) (“Since the power to establish 

voting requirements is of little value without the power to enforce those 

requirements, . . . it would raise serious constitutional doubts if a federal statute 

precluded a State from obtaining the information necessary to enforce its voter 

qualifications.”).

To avoid the problems created by this interaction between the 90-Day and 

General Removal Provisions, we would welcome the venerable doctrine of 

constitutional avoidance if it were “fairly possible” to read the statutory language 

in any other way. See Crowell v. Benson, 285 U.S. 22, 62 (1932). “But even so 

important a canon of statutory construction as that favoring the avoidance of 

serious constitutional questions does not always carry the day,” Gutierrez de 

Martinez v. Lamagno, 515 U.S. 417, 437 (1995) (O’Connor, J., concurring in part 

and concurring in the judgment) (emphasis in original), and it does not do so here

because it would require us to give the NVRA a plainly atextual reading. See 

Salinas v. United States, 522 U.S. 52, 60-61 (1997) (“[Although] [s]tatutes should 

be construed to avoid constitutional questions, . . . this interpretive canon is not a 

license for the judiciary to rewrite language enacted by the legislature. . . . Any 

other conclusion, while purporting to be an exercise in judicial restraint, would 

trench upon the powers vested in Congress[.]”) (internal quotation marks and 

citations omitted). 

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Like the district court in Florida, 870 F. Supp. 2d at 1350, I am not 

persuaded by the Secretary’s argument that the word “registrant” in the General 

Removal Provision should be read to mean only a person who could properly 

register to vote in the first place. The NVRA does not define “registrant,” and we 

must therefore give the word its “ordinary meaning.” See Taniguchi v. Kan Pac. 

Saipan, Ltd., 132 S. Ct. 1997, 2002-03 (2012). In 1993, when Congress enacted 

the NVRA, “registrant” meant “one who registers; [especially] one who by virtue 

of securing an official registration obtains a specific right or title of possession and 

use.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1912 (1993). See also 

2 THE NEW SHORTER OXFORD ENGLISH DICTIONARY 2528 (1993) (a registrant is 

“[a] person who registers, [especially] a person who by so doing gains a particular 

entitlement”). Given this ordinary meaning of the word, it is linguistically 

incorrect to say that a person is a “registrant” only if he or she is legally eligible to 

receive the benefits that come with registration. Indeed, a person can register for 

something even if he is not entitled to the ensuing benefits. That is the reason why 

the General Removal Provision lists several circumstances where registrants may 

be “removed from the official list of eligible voters.” 42 U.S.C. § 1973gg-6(a)(3). 

As made clear by the parties’ briefs, each possible reading of the NVRA’s 

90-Day and General Removal Provisions does some present or future violence to 

the statutory scheme. Given the choice, and under the circumstances here, I opt for 

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the reading that applies the statutory text as written and surrender the interpretation 

that comes from a purpose-driven view of the Act and concomitant desire to avoid 

future constitutional questions. I do this because this case calls on us to interpret 

only one provision of the NVRA, the 90-Day Provision, and it is certainly 

reasonable (and constitutional) for Congress to limit systematic removals of noncitizens from the voter rolls within the 90-day quiet period. Stated differently, the 

result in this case is not an absurd one. See Durr v. Shineski, 638 F.3d 1342, 1349 

(11th Cir. 2011) (explaining that the absurdity canon applies only in the “rare 

situations where the plain language of a statute, at least where read in isolation, 

yields a result that is both absurd and completely at odds with the entire statutory 

context in which the language is found” ). 

Any constitutional problems would arise only in a future case squarely 

presenting the application of the General Removal Provision. Before any such 

case arises, Congress has the ability to change the language of the General 

Removal Provision (as well as the ability to modify the exceptions to the 90-Day 

Provision if it so desires). Should it not do so, the court addressing such a future 

case may have to confront the argument that Congress drafted a portion of the 

NVRA in an unconstitutional manner.

With these observations, I join Judge Martin’s opinion for the court in full.

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SUHRHEINRICH, Circuit Judge, dissenting: 

I would affirm the judgment of the district court for the reasons set forth in 

the district court’s opinion, see Arcia v. Detzner, 908 F. Supp. 2d 1276 (S.D. Fla. 

2012), as well as the reasoning of United States v. Florida, 870 F. Supp. 2d 1346 

(N.D. Fla. 2012). I therefore respectfully dissent. 

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