HomeMy WebLinkAboutcocc_council_mtg_packet_20190806CAPE CANAVERAL REGULAR CITY COUNCIL MEETING
City Hall Council Chambers
100 Polk Avenue, Cape Canaveral, Florida 32920
AGENDA
August 6, 2019
6:00 PM
CALL TO ORDER:
PLEDGE OF ALLEGIANCE:
ROLL CALL:
PUBLIC PARTICIPATION:
Any member of the public may address any items that do not appear on the agenda and any agenda
item that is listed on the agenda for final official action by the City Council excluding public
hearing items which are heard at the public hearing portion of the meeting, ministerial items (e.g.
approval of agenda, minutes, informational items), and quasi-judicial or emergency items.
Citizens will limit their comments to three (3) minutes. The City Council will not take any action
under the "Public Participation" section of the agenda. The Council may schedule items not on the
agenda as regular items and act upon them in the future.
PUBLIC HEARING:
6:15p.m.6:30p.m.
1. Ordinance No. 14-2019; an Emergency Ordinance amending Chapter 26, Elections, of the
Code of Ordinances; changing the qualifying period for candidates for the office of the
City Council for the 2019 City Regular Election to be consistent with the requirements
established by the Brevard County Supervisor of Elections to provide Spanish language
ballots pursuant to a preliminary injunction issued by the Federal District Court in Madera
v. Lee, No. 1:18-cv-152-MW/GRJ (N.D. Fla. May 10, 2019) and a related directive issued
to the Supervisor of Elections by the Florida Secretary of State; providing an effective date
and repealer provision.
ADJOURNMENT:
Pursuant to Section 286.0105, Florida Statutes, the City hereby advises the public that: If a person
decides to appeal any decision made by the City Council with respect to any matter considered at
this meeting, that person will need a record of the proceedings, and for such purpose that person
may need to ensure that a verbatim record of the proceedings is made, which record includes the
testimony and evidence upon which the appeal is to be based. This notice does not constitute
consent by the City for the introduction or admission into evidence of otherwise inadmissible or
irrelevant evidence, nor does it authorize challenges or appeals not otherwise allowed by law. In
accordance with the Americans with Disabilities Act: all interested parties may attend this Public
Meeting. The facility is accessible to the physically handicapped. Persons with disabilities needing
assistance to participate in the proceedings should contact the City Clerk's office (868-1220 x207
or x206) 48 hours in advance of the meeting.
[City Seal]
City of Cape Canaveral
City Council Agenda Form
City Council Meeting Date: 08/06/2019
Item No. 1
Subject: Ordinance No. 14-2019; an Emergency Ordinance amending Chapter 26, Elections,
of the Code of Ordinances; changing the qualifying period for candidates for the office of the
City Council for the 2019 City Regular Election to be consistent with the requirements
established by the Brevard County Supervisor of Elections to provide Spanish language ballots
pursuant to a preliminary injunction issued by the Federal District Court in Madera v. Lee, No.
1:18-cv-152-MW/GRJ (N.D. Fla. May 10, 2019) and a related directive issued to the Supervisor
of Elections by the Florida Secretary of State; providing an effective date and repealer provision.
Department: City Clerk's Office
Summary: The Brevard County Supervisor of Elections, on behalf of the City of Cape
Canaveral and all other cities/towns in Brevard County, conducts municipal elections. At its
Clerks Meeting of Monday, July 15, 2019, the Brevard County City Clerks' Association was
given a presentation by the Brevard County Supervisor of Elections (BCSOE) Lori Scott and
Staff, requesting cities/towns adjust their qualifying dates for the period to end 78 days prior to
the date of an election, allowing time for ballot processing. BCSOE Scott referred to a Florida
Secretary of State Directive (Attachment 1, Exhibit "A") and Governor Ron DeSantis Directive
(Attachment 2) for bilingual election materials. The Directives affect ballot requirements for the
2019 and 2020 elections and beyond. As a result, City Attorney Anthony Garganese drafted
Ordinance No. 14-2019 (Attachment 1) for City Council consideration.
The City is granted the authority, under Section 2(b), Article VIII, of the State Constitution, to
exercise any power for municipal purposes, except when expressly prohibited by law and is
empowered to adopt emergency ordinances by two-thirds vote of the members present pursuant
to Section 2.14 of the City Charter and generally under Section 166.041(3)(b), Florida Statutes.
Highlights of Ordinance No. 14-2019 include:
• Madera v. Lee, No. 1:18-cv-152-MW/GRJ (N.D. Fla. May 10, 2019) (hereinafter
"Election Case"); plaintiffs who are voters educated in Puerto Rico brought suit to
enforce the plain provisions of Section 4(e) of the Voting Rights Act and require Spanish
language ballots in certain elections held in the State of Florida; and
• On May 10, 2019, the Federal District Court issued a preliminary injunction in the
Election Case in favor of the plaintiffs requiring the provision of Spanish language
ballots in elections held in certain counties including Brevard County; and
• The preliminary injunction order states that "[c]ompliance with this Order is not
optional"; and
• The Election Case pertains to the application of Section 4(e) under the Voting Rights
Act of 1965 which contains a Congressional declaration that to secure the rights under
the fourteenth amendment of persons educated in American -flag schools (including
schools in Puerto Rico) in which the predominant classroom language was other than
English, it is necessary to prohibit the State from conditioning the right to vote of such
persons on the ability to read, write, understand, or interpret any matter in the English
language; and
• The Federal District Court's order emphasizes that it is ordering compliance with the
plain language of Section 4(e) of the Voting Rights Act of 1965 by requiring Spanish
City Council Meeting
Date: 08/06/2019
Item No. 1
Page 2 of 3
language ballots, and the Florida Secretary of State conceded in the Election Case that
compliance is not optional; and
• Pursuant to the Secretary of State Directive, Supervisor of Elections were directed to not
only have official Spanish language ballots and other election materials prepared before
voting related to the March 17, 2020 presidential primary election, including early voting
and vote -by -mail, but the directive also requires that Supervisor of Elections running
municipal elections between the date of the May 10, 2019 Federal District Court Order
through March 16, 2020 to provide facsimile sample ballots and other election materials
in Spanish to voters who fall within the ambit of Section 4(e) of the Voting Rights Act.
The BCSOE will be conducting the City election on November 5, 2019, and has requested the
City of Cape Canaveral complete and provide all ballot referendum language and a list of
qualified Council candidates meeting the deadline of no later than 78 days prior to the City
election, Monday, August 19, 2019. Pursuant to Section 26-3 of the City Code, the current
qualifying period for all candidates running for office shall be at any time after Noon of the 88th
day prior to the general election and no later than Noon of the 74th day. As such, the City's
current qualifying deadline for the 2019 City Election must be shortened by four (4) days for
the City to comply with the request made by the BCSOE.
Therefore, in order to meet those Directives of the State and the BCSOE deadline of August 19,
2019, Staff recommends the City Council:
1. Declare that it supports the Voting Rights Act of 1965, and the provisions of Section
4(e), and therefore, for purposes of complying with the directive given by BCSOE in
furtherance of the Federal District Court Order and the Secretary of State Directive, the
City Council desires to expeditiously modify the qualifying period for the City's 2019
election by shortening the qualifying period by 4 days so that the City Clerk may provide
all ballot referendum language and a list of Council candidates to the Brevard County
Supervisor of Elections no later than 78 days prior to the November 5, 2019 City
election; and
2. Declare that an emergency exists, due to the fact that Qualifying Candidates for the 2019
City Council Election commences in a few days on August 9, 2019, and therefore,
relevant to securing voting rights and conducting the 2019 City Election and that the use
of Ordinance No. 14-2019 is a legitimate and necessary action to take by the City Council
in order for the City to timely comply with the Spanish language ballot legal
requirements set forth in the Election Case and Secretary of State Directive; and
3. Declare intent to permanently amend the Qualifying Dates set forth in Section 26-3 of
the City Code by regular ordinance prior to the May 17, 2020 deadline expressed in the
Federal District Court Order.
Per Section 2 of the Emergency Ordinance:
The intent and purpose of this Section is to amend the qualifying dates only for the 2019 City
Council election. Notwithstanding the provisions set forth in Section 26-3, the qualifying period
for the 2019 City Election shall be as follows:
City Council Meeting
Date: 08/06/2019
Item No. 1
Page 3 of 3
The qualifying period for candidates for the offices of the mayor and city council
shall be at any time after 12:00 noon of the 88th day prior to the general election
(August 9, 2019) and no later than 12:00 noon of the 78th day prior to the date of
the general election (August 19, 2019).
Per Section 3:
This Ordinance shall become effective immediately upon adoption by the City Council of the
City of Cape Canaveral, Florida, and shall stand repealed as of the 61st day following the date
on which this Ordinance was adopted in accordance with Section 2.14 of the City Charter.
At the time of this writing, a Notice of Public Hearing advertisement for Ordinance No. 14-2019
was scheduled to appear in the legal section of Florida Today on Thursday, August 1, 2019.
Submitting Director: Mia Goforth Date: 7/29/19
Attachments:
(1) Ordinance No. 14-2019 with Exhibit "A" - Florida Secretary of State Directive 2019-03
"Spanish Assistance for Supervisor Run Municipal Elections."
(2) April 11, 2019 News Release "Governor Ron DeSantis Directs Florida Department of
State to Address Availability of Spanish Language Ballots for the 2020 Elections."
Financial Impact: Staff time/effort to prepare Agenda Item; cost of advertisement.
Reviewed by Administrative/Financial
Services Director: John DeLeo Date: 7/29/19
The City Manager recommends City Council take the following action:
Adopt Ordinance No. 14-2019.
Approved by City Manager: David L. Greene Date: 7/29/19
Attachment 1
ORDINANCE NO. 14-2019
AN EMERGENCY ORDINANCE OF THE CITY OF CAPE
CANAVERAL, FLORIDA, AMENDING CHAPTER 26,
ELECTIONS, OF THE CODE OF ORDINANCES;
CHANGING THE QUALIFYING PERIOD FOR
CANDIDATES FOR THE OFFICE OF THE CITY COUNCIL
FOR THE 2019 CITY REGULAR ELECTION TO BE
CONSISTENT WITH THE REQUIREMENTS
ESTABLISHED BY THE BREVARD COUNTY
SUPERVISOR OF ELECTIONS TO PROVIDE SPANISH
LANGUAGE BALLOTS PURSUANT TO A PRELIMINARY
INJUNCTION ISSUED BY THE FEDERAL DISTRICT
COURT IN MADERA V. LEE, NO. 1:18-CV-152-MW/GRJ
(N.D. FLA. MAY 10, 2019) AND A RELATED DIRECTIVE
ISSUED TO THE SUPERVISOR OF ELECTIONS BY THE
FLORIDA SECRETARY OF STATE; PROVIDING AN
EFFECTIVE DATE AND REPEALER PROVISION.
WHEREAS, the City is granted the authority, under Section 2(b), Article VIII, of the State
Constitution, to exercise any power for municipal purposes, except when expressly prohibited by
law; and
WHEREAS, the City Council is empowered to adopt emergency ordinances by two-thirds
vote of the members present pursuant to Section 2.14 of the City Charter and generally under
Section 166.041(3)(b), Florida Statutes; and
WHEREAS, the Brevard County Supervisor of Elections, on behalf of the City of Cape
Canaveral, will be conducting a City referendum and Council election on November 5, 2019, and
as more fully explained in the following recitals, an emergency currently exists regarding this City
election to ensure that Spanish language ballots are lawfully provided for this City election; and
WHEREAS, in Madera v. Lee, No. 1:18-CV-152-MW/GRJ (N.D. Fla. May 10, 2019)
(hereinafter "Election Case"), plaintiffs who are voters educated in Puerto Rico brought suit to
enforce the plain provisions of Section 4(e) of the Voting Rights Act and require Spanish language
ballots in certain elections held in the State of Florida; and
WHEREAS, on May 10, 2019, the Federal District Court issued a preliminary injunction
in the Election Case in favor of the plaintiffs requiring the provision of Spanish language ballots
in elections held in certain counties including Brevard County; and
WHEREAS, the preliminary injunction order states that "[c]ompliance with this Order is
not optional"; and
City of Cape Canaveral
Ordinance No. 14-2019
Page 1 of 4
WHEREAS, the Election Case pertains to the application of Section 4(e) under the Voting
Rights Act of 1965 which contains a Congressional declaration that to secure the rights under the
fourteenth amendment of persons educated in American -flag schools (including schools in Puerto
Rico) in which the predominant classroom language was other than English, it is necessary to
prohibit the State from conditioning the right to vote of such persons on the ability to read, write,
understand, or interpret any matter in the English language; and
WHEREAS, Section 4(e) further provides that no person covered by Section 4(e) shall be
denied the right to vote in any Federal, State, or local election because of his inability to read,
write, understand, or interpret any matter in the English language; and
WHEREAS, the Federal District Court's order emphasizes that it is ordering compliance
with the plain language of Section 4(e) of the Voting Rights Act of 1965 by requiring Spanish
language ballots, and the Florida Secretary of State conceded in the Election Case that compliance
is not optional; and
WHEREAS, in furtherance of the Election Case, the Florida Secretary of State, who has
the power to enforce the performance of any duties of a county supervisor of election or any official
performing election —administrative duties, issued Directive 2019-03 on May 13, 2019 to all county
Supervisor of Elections regarding Spanish Assistance for Supervisor Run Municipal Elections. A
copy of the Directive is attached to this Ordinance as Exhibit "A." (hereinafter the "Secretary of
State Directive"); and
WHEREAS, pursuant to the Secretary of State Directive, Supervisor of Elections were
directed to not only have official Spanish language ballots and other election materials prepared
before voting related to the March 17, 2020 presidential primary election, including early voting
and vote -by -mail, but the directive also requires that Supervisor of Elections running municipal
elections between the date of the May 10, 2019 Federal District Court Order through March 16,
2020 to provide facsimile sample ballots and other election materials in Spanish to voters who fall
within the ambit of Section 4(e) of the Voting Rights Act; and
WHEREAS, the Brevard County Supervisor of Elections will be conducting the City
election on November 5, 2019, and has requested that the City of Cape Canaveral complete and
provide all ballot referendum language and a list of qualified Council candidates no later than 78
days prior to the City election, which deadline is Monday, August 19, 2019; and
WHEREAS, pursuant to Section 26-3 of the City Code, the City's current qualifying
period for candidates running for the office of Mayor and City Council shall be at any time after
12:00 noon of the 88th day prior to the general election and no later than 12:00 noon of the 74th
day prior to the date of the general election ("Existing Qualifying Period"); and
WHEREAS, the current termination date (74th day) of the Existing Qualifying Period does
not comply with the directive given by the Brevard County Supervisor of Elections to complete
and provide all ballot referendum language and a list of qualified Council candidates no later than
78 days prior to the City election; and
City of Cape Canaveral
Ordinance No. 14-2019
Page 2 of 4
WHEREAS, the City Council hereby declares that it supports the Voting Rights Act of
1965, and the provisions of Section 4(e), and therefore, for purposes of complying with the
directive given by the Brevard County Supervisor of Elections in furtherance of the Federal
District Court Order and the Secretary of State Directive, the City Council desires to expeditiously
modify the qualifying period for the City's 2019 election by shortening the qualifying period by 4
days so that the City Clerk may provide all ballot referendum language and a list of Council
candidates to the Brevard County Supervisor of Elections no later than 78 days prior to the
November 5, 2019 City election; and
WHEREAS, exigent circumstances currently exist due to the fact that qualifying
candidates for the 2019 City Council Election commences in a few days on August 9, 2019, and
therefore, the City Council hereby declares that an emergency exists relevant to securing voting
rights and conducting the 2019 City election and that the use of an emergency ordinance is a
legitimate and necessary action to take by the City Council in order for the City to timely comply
with the Spanish language ballot legal requirements set forth in the Election Case and Secretary of
State Directive; and
WHEREAS, the City Council intends to permanently amend the qualifying dates set forth
in Section 26-3 of the City Code by regular ordinance prior to the May 17, 2020 deadline expressed
in the Federal District Court Order; and
WHEREAS, the City Council of the City of Cape Canaveral, Florida, hereby finds this
Ordinance to be in the best interests of the public health, safety, and welfare of the citizens of Cape
Canaveral.
BE IT ORDAINED by the City Council of the City of Cape Canaveral, Brevard
County, Florida, as follows:
Section 1. Recitals. The foregoing recitals are hereby fully incorporated herein by
this reference as legislative findings and the intent and purpose of the City Council of the City of
Cape Canaveral.
Section 2. Qualifying Period for 2019 City Election. The intent and purpose of this
Section is to amend the qualifying dates only for the 2019 City Council election. Notwithstanding
the provisions set forth in Section 26-3, the qualifying period for the 2019 City Election shall be
as follows:
The qualifying period for candidates for the offices of the mayor and city council
shall be at any time after 12:00 noon of the 88th day prior to the general election
(August 9, 2019) and no later than 12:00 noon of the 78th day prior to the date of
the general election (August 19, 2019).
Section 3. Effective Date and Repealer. This Ordinance shall become effective
immediately upon adoption by the City Council of the City of Cape Canaveral, Florida, and shall
stand repealed as of the 61' day following the date on which this Ordinance was adopted in
accordance with Section 2.14 of the City Charter.
City of Cape Canaveral
Ordinance No. 14-2019
Page 3 of 4
ADOPTED by the City Council of the City of Cape Canaveral, Florida, this 6th day of
August, 2019.
ATTEST:
Mia Goforth, CMC
City Clerk
Approved as to legal form and sufficiency
for the City of Cape Canaveral only by:
Anthony A. Garganese, City Attorney
Bob Hoog, Mayor
Mike Brown
Robert Hoog
Wes Morrison
Rocky Randels
Angela Raymond
City of Cape Canaveral
Ordinance No. 14-2019
Page 4 of 4
For Against
Supervisors of Elections
Ordinance No. 14-2019
Exhibit "A"
[The Great Seal of the State of Florida]
FLORIDA DEPARTMENT Of STATE
RON DESANTIS LAUREL M. LEE
Governor Secretary of State
MEMORANDUM
TO:
FROM: Laurel M. Lee
Florida Secretary of State
DATE: May 13, 2019
SUBJECT: Directive 2019-03 — Spanish Assistance for Supervisor Run Municipal Elections
1. Pursuant to the attached Order Granting in Part Plaintiffs' ,Motion for Preliminary
Injunction (Madera v. Lee, No.: 1:18-cv-152-MWIGRJ (N.D. Fla. May 10, 2019), I hereby issue
this directive to and advise the Supervisors of Elections for Alachua, Bay, Brevard, Charlotte,
Citrus, Clay, Columbia, Duval, Escambia, Flagler, Hernando, Highlands, Indian River, Jackson,
Lake, Leon, Levy, Manatee, Marion, Martin, Monroe, Okaloosa, Okeechobee, Pasco, Putnam,
St. Johns, St. Lucie, Santa Rosa, Sarasota, Sumter, Taylor, and Wakulla Counties, "who will run
a municipal election between [May 10, 2019] through March 16, 2020," as follows:
a. "For any elections held between the date of this Order and through March 16,
2020, the supervisor of elections shall make available a facsimile sample ballot in
Spanish to voters who fall within the ambit of Section 4(e) of the Voting Rights
Act. The sample ballots shall have matching size, information, layout, placement,
and fonts as an official ballot does. The sample ballots need not be completely
identical; for example, the sample ballot need not contain bar codes or other
markings that official ballots may have or be printed on the same stock, etc.;"
b. "To render this a meaningful remedy, the supervisor of elections shall publish the
same facsimile sample ballot on their website with Spanish -language directions.
To the extent the English -language ballots are mailed, published, or advertised,
such sample ballots must also include the sample Spanish -language ballot;"
R.A. Gray Building • 500 South Bronough Street • Tallahassee, Florida 32399
850.245.6500 • 850.245.6125 (Fax) • DOS.MyFlorida.com
Ordinance No. 14-2019
Exhibit "A"
c. "The supervisor of elections shall also provide signage in Spanish at polling
places making voters aware of such sample ballots."
2. This directive remains in effect until such time as it is superseded or revoked by
subsequent directive, law, or final court order.
2
Case 1:18-cv-00152-MW-GRJ Document 131 Filed 05/10/19 Page 1 of 16
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION
MARTA VALENTINA RIVERA
MADERA, on behalf of herself
and all others similarly situated,
FAITH IN FLORIDA, HISPANIC FEDERATION,
MI FAMILIA VOTA EDUCATION FUND,
UNIDOSUS, and VAMOS4PR,
Plaintiffs,
V. Case No. 1:18-cv-152-MW/GRJ
LAUREL M. LEE, in her official
capacity as the Florida Secretary
of State, and KIM A. BARTON, in her
official capacity as Alachua County
Supervisor of Elections, on behalf of
herself and similarly situated County
Supervisors of Elections,
Defendants.
ORDER GRANTING IN PART PLAINTIFFS' MOTION
FOR PRELIMINARY INJUNCTIONi
This Court has considered, after hearing on May 6, 2019, Plaintiffs'
second motion for preliminary injunction. ECF No. 110. The motion is
GRANTED in part.
1 This Court recognizes that time is of the essence and intended to issue this Order shortly after
the May 6 hearing. But this Court had a two-day judicial conference and several hearings that
delayed a speedier issuance.
1
Case 1:18-cv-00152-MW-GRJ Document 131 Filed 05/10/19 Page 2 of 16
This case is about the fundamental right to cast an effective ballot.
Voters educated in Puerto Rico bring this suit to enforce the plain provisions
of the Voting Rights Act's Section 4(e). This straightforward law has been on
the books for 54 years. In this action, this Court is ensuring compliance with
Congress's clear directives.
This Court incorporates by reference its previous order granting in part
Plaintiffs' first motion for preliminary injunction. See ECF Nos. 57 & 59. There,
this Court ordered achievable equitable relief under the time constraints of the
November 2018 election cycle. Specifically, this Court ordered the Secretary of
State to order the supervisors of elections of 32 counties2 to "make available a
facsimile sample ballot in Spanish to voters who fall within the ambit of
Section 4(e) of the Voting Rights Act." ECF No. 59, at 26. This Court also
ordered Spanish signage and the mailing, publication, or advertising of the
Spanish -language sample ballots to the extent the supervisor of elections
mails, publishes, or advertises sample ballots. Id. In so ordering, this Court
determined that Plaintiffs had met their burden of establishing they had a
2 Plaintiffs were not able to identify Puerto Rican populations in 20 counties that conduct English -
only elections. At the time of this lawsuit's filing, 15 counties provided official Spanish -language
ballots under another provision of the Act, 52 U.S.C. § 10503(b)(2)(A), or, in the case of Collier
and Volusia Counties, voluntarily. Since the initiation of this lawsuit, other counties have taken
steps to provide official Spanish -language ballots. See generally ECF No. 123-1. The 32 counties
at issue in this action are: Alachua, Bay, Brevard, Charlotte, Citrus, Clay, Columbia, Duval,
Escambia, Flagler, Hernando, Highlands, Indian River, Jackson, Lake, Leon, Levy, Manatee,
Marion, Martin, Monroe, Okaloosa, Okeechobee, Pasco, Putnam, St. Johns, St. Lucie, Santa Rosa,
Sarasota, Sumter, Taylor, and Wakulla.
2
Case 1:18-cv-00152-MW-GRJ Document 131 Filed 05/10/19 Page 3 of 16
substantial likelihood of success on the merits, they would suffer irreparable
harm absent an injunction, and an injunction would serve the public interest.
The balance of the equities —the timing of the election cycle and the expense of
the requested relief on the one hand versus the fundamental right to cast an
effective vote on the other hand —shaped this Court's temporary relief.
Plaintiffs now move for a preliminary injunction for broader relief. ECF
No. 110; see also ECF No. 110, Ex. 6. Additionally, Secretary Lee has filed a
notice of rulemaking. ECF No. 114. One rule would "require Florida's
supervisors of elections to provide official Spanish language ballots by the 2020
General Election." Id. at 2. Another rule would "update the State's official
polling place procedures manual" to "address accessibility issues for Spanish-
speaking voters." Id. The Secretary and the Governor should be lauded for
initiating rulemaking designed to bring the state into compliance with Section
4(e) of the Voting Rights Act.
The issue today, however, is what measures this Court must order
between now and the effective date of the state's final rule, to ensure that the
various jurisdictions comply with Section 4(e). In so stating, this Court
acknowledges that the state's final rules may bring it in compliance with the
Voting Rights Act. But they may not. What is clear is that the rules are not
currently in place and elections will be held between now and then. In the
meantime, an order requiring achievable compliance is necessary.
3
Case 1:18-cv-00152-MW-GRJ Document 131 Filed 05/10/19 Page 4 of 16
This Court again concludes that Plaintiffs have established a substantial
likelihood of success on the merits. The Voting Rights Act of 1965's Section 4(e)
prohibits English -only elections for those citizens —yes, citizens —educated in
Puerto Rico in Spanish.3 See Katzenbach v. Morgan, 384 U.S. 643, 657 (1966);
see also United States v. Berks Cty., 250 F. Supp. 2d 525, 535 (E.D. Pa. 2003)
(observing how courts "broadly interpret[]" Section 4(e) to prohibit conditioning
vote on a voter's English -language abilities). The law is clear. Moreover,
Plaintiffs would suffer irreparable harm absent an injunction. Irreparable
injury is presumed when "fa] restriction on the fundamental right to vote" is
at issue. Obama for Am. v. Husted, 697 F.3d 423, 436 (6th Cir. 2012). The right
to vote "encompasses the right to an effective vote." Puerto Rican Org. for
Political Action v. Kusper, 490 F.2d 575, 580 (7th Cir. 1973). Therefore, absent
3 Section 4(e) in its entirety states:
(1) Congress hereby declares that to secure the rights under the fourteenth amendment
of persons educated in American -flag schools in which the predominant classroom
language was other than English, it is necessary to prohibit the States from conditioning
the right to vote of such persons on ability to read, write, understand, or interpret any
matter in the English language.
(2) No person who demonstrates that he has successfully completed the sixth primary
grade in a public school in, or a private school accredited by, any State or territory, the
District of Columbia, or the Commonwealth of Puerto Rico in which the predominant
classroom language was other than English, shall be denied the right to vote in any
Federal, State, or local election because of his inability to read, write, understand, or
interpret any matter in the English language, except that in States in which State law
provides that a different level of education is presumptive of literacy, he shall demonstrate
that he has successfully completed an equivalent level of education in a public school in,
or a private school accredited by, any State or territory, the District of Columbia, or the
Commonwealth of Puerto Rico in which the predominant classroom language was other
than English.
52 U.S.C. § 10303(e).
Case 1:18-cv-00152-MW-GRJ Document 131 Filed 05/10/19 Page 5 of 16
an injunction, Plaintiffs would lack the means to cast an effective vote between
now and the planned rulemaking. The balance of the equities favors ordering
additional measures to ensure compliance with the Voting Rights Act. This
Court outlines these measures below. Finally, the public interest is served by
an injunction. "Ordering Defendants to conduct elections in compliance with
the Voting Rights Act so that all citizens may participate equally in the
electoral process serves the public interest by reinforcing the core principles of
our democracy." Berks Cty., 250 F. Supp. at 541.
It should be noted. that the Secretary is the proper party before this
Court. This is an issue largely put to rest. Democratic Exec. Comm. v. Lee, 915
F.3d 1312, 1318 (11th Cir. 2019). But the Secretary argues that municipal
elections may be outside the scope of her power because some municipalities
run their elections autonomously from the county supervisor of elections. See
ECF No. 123, at 9-10. This argument is not persuasive because under Florida
law the Secretary —the state's "chief election officer," Section 97.012, Florida
Statutes —must have "general supervision and administration of the elections
laws," Section 15.13, Florida Statutes, including the duty to "[o]btain and
maintain uniformity in the interpretation and implementation of the elections
laws." Fla. Stat. § 97.012(1). Even more, the Secretary has the power to
"enforce the performance of any duties of a county supervisor or any official
performing" election -administration duties. Fla. Stat. § 97.012(14). In short,
5
Case 1:18-cv-00152-MW-GRJ Document 131 Filed 05/10/19 Page 6 of 16
the Secretary maintains ample power over municipal elections, at least with
regards to the issue here —compliance with federal law.
At the hearing, Plaintiffs conceded that no record evidence exists of a
citizen who falls within the ambit of Section 4(e) but who was unable to cast
an effective ballot under the protocols established by this Court's prior
preliminary injunction.4 While this may be evidence that this Court's prior
preliminary injunction was not inadequate, this lack of evidence could also
reveal that this Court's measures did not go far enough. For example, perhaps
the availability of Spanish -language sample ballots was not known to citizens
who fell within the ambit of Section 4(e) because this Court did not order
proactive advertising or marketing regarding the sample ballots.
This Court again emphasizes that it is ordering compliance with the
plain language of the Voting Rights Act of 1965. The Secretary concedes that
compliance with Section 4(e) of the Act is not optional. In fact, the Secretary
agrees that this Court's previous preliminary injunction "should remain in
effect at least until the state rulemaking is complete." ECF No. 123, at 3.
What's more, in some ways, the Secretary's proposed rules go further than
Plaintiffs' requested relief because one of the rules appears to require that all
4 One possible exception was Duval County's lack of total compliance with this Court's previous
preliminary injunction order to provide facsimile sample ballots at polling places, which
necessitated an emergency motion. See ECF Nos. 77-79. Even then, however, Plaintiffs cannot
confirm that a citizen was denied his or her right to vote.
6
Case 1:18-cv-00152-MW-GRJ Document 131 Filed 05/10/19 Page 7 of 16
ballots be bilingual (or multilingual, as the case may be in some counties). See
ECF No. 120, Ex. 1 ("Ballots shall be translated into Spanish and where
required by law or court order, into other languages."). Plaintiffs, after all, do
not seek Spanish -language election materials in 20 counties where they were
unable to locate Spanish-speaking Puerto Rican —educated citizens.
This Court is again entering an injunction mindful of its equitable power
to balance the fundamental right at stake against the time, expense, and other
concerns raised by the state and the many supervisors of elections. "Crafting
a preliminary injunction is an exercise of discretion and judgment, often
dependent as much on the equities of a given case as the substance of the legal
issues it presents." Trump v. Intl Refugee Assistance Project, 137 S. Ct. 2080,
2087 (2017). The Eleventh Circuit has recently reiterated that it is "axiomatic
that a district court need not grant the total relief sought by the applicant but
may mold its decree to meet the exigencies of the particular case."' Democratic
Exec. Comm., 915 F.3d at 1327-28 (quoting Trump, 137 S. Ct. at 2087). It is
crystal clear from binding authority that crafting appropriate remedies is
within a district court's equitable powers, even if they do not track entirely
with what Plaintiffs seek.
Compliance with this Order is not optional. While the vast majority of
supervisors of election are upstanding professionals who follow the law and
court orders, do difficult but necessary work under tight timelines, and are
7
Case 1:18-cv-00152-MW-GRJ Document 131 Filed 05/10/19 Page 8 of 16
often subjects of multiple bouts of litigation, there may be some who selectively
interpret parts of this Court's orders or otherwise avoid compliance. This Court
will not hesitate to use every tool the law provides to enforce this Order. See
Fed. R. Civ. P. 65(d)(2)(C) (binding "other persons who are in active concert or
participation" with the parties and the parties' officers, agents, and
employees); see also 28 U.S.C. §1651(a) (granting courts the authority to "issue
all writs necessary or appropriate in aid of their respective jurisdictions and
agreeable to the usages and principles of law").
It bears noting that this Court's Order is not a bolt out of the blue. After
all, Section 4(e) has been the law of the land since 1965 and supervisors of
elections should have been complying with the law for more than 50 years
without court intervention. It's simple. The best way to avoid litigation and
stay out the courts is to follow the law.
As noted before, the Governor and Secretary should be lauded for
initiating a rulemaking process to ensure compliance with this decades -old
law. This Order is not designed to supplant the future rules. But ongoing court
intervention may be necessary. As mentioned above, the state's final rules may
not fully comply with Section 4(e). The rules' final form, at this point, is pure
conjecture. And so, without the pressing time constraints that limited this
Court's prior preliminary injunction, further relief is necessary to ensure
meaningful compliance with federal law. In crafting relief, this Court
8
Case 1:18-cv-00152-MW-GR3 Document 131 Filed 05/10/19 Page 9 of 16
considered the helpful and thorough affidavits of many supervisors of elections.
ECF No. 123-1. Accordingly,
IT IS ORDERED:
1. This Court's previous order on preliminary injunction including its
findings of fact and conclusions of law, ECF No. 59, is incorporated
into this preliminary injunction.
2. Plaintiffs' renewed motion for preliminary injunction, ECF No. 110,
is GRANTED in part.
3. Consistent with the Secretary of State's responsibility to "provide
written direction ... to the supervisors of elections on the performance
of their official duties with respect to . . . rules adopted by the
Department of State," Section 97.012(16), Florida Statutes, and the
Department of State's rule that "[baallots shall be translated into
other languages that are required by law or court order," Fla. Admin.
Code R. 1S-2.032, and inasmuch as this Order delineates such
requirements, the Secretary shall provide written direction to the
supervisor of elections in the 32 counties at issue, stating:
a. All requirements ordered under. Paragraph 3 shall be in place
before voting related to the March 17, 2020 presidential
primary election, including early voting and vote -by -mail
b. On or before the earliest date ballots are required to be created
for voting related to the March 17, 2020 presidential primary
9
Case 1:18-cv-00152-MW-GRJ Document 131 Filed 05/10/19 Page 10 of 16
election,5 the supervisor of elections shall have official Spanish -
language ballots available on a (1) unilingual ballot; (2) bi- or
multilingual ballot; and/or (3) an electronic Voter Assistance
Terminal, such as the Automark.6
c. The supervisor of elections shall create a toll -free, county -
specific, Spanish -language hotline7 with at least one bilingual
employee for the purpose of translating or otherwise assisting
Spanish -language voters during all early voting hours, hours
when polls are open, and all hours during which voters can cure
deficiencies with absentee or provisional ballots following
election days, and all business hours on other days.
Additionally, the Secretary shall direct supervisors of elections
to visibly display at each polling place the availability of
Spanish -language hotline assistance, including the county's
Spanish -language hotline number and the state's Spanish -
language hotline number.
d. The supervisor of election shall provide in Spanish all official
election -related written and electronic materials, including, but
not, limited to, ballots (as described in Subsection (b), supra),
absentee and early voting applications and envelopes,
provisional ballot envelopes and certifications, voter
5 According to 26 of the 29 declarations of supervisors of elections, Spanish -language official
ballots can be provided in those counties by this date. See generally ECF No. 123-1; see also ECF
No. 126, at 5 n.3 & 6 n.5. Only three (Brevard, Columbia, and Santa Rosa) did not provide a
timeline for when official Spanish -language ballots would be available. None of the responding
supervisors stated they could not provide an official Spanish -language ballot by this time.
6 The Automark provides Spanish translations of ballots and is already in place in at least one
county, Duval County. ECF No. 123-1, at 37.
7 According to the declarations of 29 supervisors of elections, the overwhelming majority indicated
that a Spanish -language hotline (or functional equivalent) was already in place (Alachua, Clay,
Duval, Escambia, Highland, Indian River, Leon, Okaloosa, Pasco, St. Lucie), is planned
(Hernando), or is possible (Bay, Charlotte, Citrus, Levy, Marion, Martin, Monroe, Putnam, Santa
Rosa, Sarasota, St. Johns, Sumter). Only five counties (Columbia, Jackson, Okeechobee, Taylor,
Wakulla) expressed concerns over the cost and bilingual staffing limitations for the service. See
generally ECF No. 123-1. Even so, the Secretary conceded at the hearing that "[w]e think the
phone hotlines are an appropriate stopgap measure." ECF No. 128, at 36; see also id. at 39.
Therefore, at a bare minimum, the five counties that expressed cost and staffing limitations for a
Spanish -language hotline must create and advertise at polling places a telephone line that
patches them to the state's Spanish -language hotline. It goes without saying this hotline measure
is far less onerous than requiring bilingual poll workers.
10
Case 1:18-cv-00152-MW-GRJ Document 131 Filed 05/10/19 Page 11 of 16
registration cards and applications, voting instructions, voter
information guides and pamphlets, notifications of elections
and polling place changes, polling place signage, and all
information available on the supervisors' websites. The
existence of these materials shall be made known at polling
places and the supervisors of elections' offices with prominent
displays. Signage shall be prominently posted and explain in
English and Spanish how voters can obtain Spanish -language
assistance.
e. The supervisor of elections shall provide in Spanish all
notifications, announcements, and informational materials
about all stages of the electoral process, including materials
concerning the opportunity to register, voter registration
deadlines, the times, places, and subject matters of the
elections, the absentee and early voting processes, offices up for
election, candidates who have qualified, and local issues or
referenda and announcements applicable to elections in the
counties.
f. The supervisor of elections shall provide a copy of the Spanish -
English Election Terms Glossary prepared by the U.S. Election
Assistance Commission at each polling place.
g•
The supervisor of elections shall provide Spanish -language
information on websites that is readily accessible through
prominent and identifiable Spanish -language links on each
website. Smaller counties with less means and resources to
fully translate their websites may provide a Spanish -language
link, prominently displaced, to the state's election -information
website.
h. The supervisor of elections shall provide information in Spanish
on websites and at each polling place that any voter who
requires assistance to vote may bring a helper to assist them.
i. To the extent practicable, the supervisor of elections shall
recruit, hire, train, and assign bilingual poll workers who are
able to understand speak, write, and read English and Spanish
fluently and can provide effective translation assistance to
Spanish-speaking voters at the polls on election days, at early
11
Case 1:18-cv-00152-MW-GRJ Document 131 Filed 05/10/19 Page 12 of 16
voting locations, and at locations where voters can cure
deficiencies with absentee or provisional ballots following
election days.8 Supervisors shall continue to make good -faith
recruiting efforts to provide bilingual assistance, particularly
for the benefit of those polling locations with a higher
proportion of individuals who fall under the ambit of Section
4(e).
The supervisor of elections shall train all poll officials and other
election personnel regarding the requirements of Section 4(e) of
the Voting Rights Act, including the legal obligation and means
to make effective Spanish -language assistance and materials
available to voters.
k. All requirements ordered under Paragraph 3 shall be in place
before voting related to the March 17, 2020 presidential
primary election, including early voting and vote -by -mail.
4. Consistent with the Secretary of State's responsibility to "provide
written direction ... to the supervisors of elections on the performance
of their official duties with respect to . . . rules adopted by the
Department of State," Section 97.012(16), Florida Statutes, and the
Department of State's rule that "[b]allots shall be translated into
other languages that are required by law or court order," Fla. Admin.
Code R. 1S-2.032, the Secretary shall provide written direction to any
supervisor of elections among the 32 counties that will run a
8 This Court recognizes the difficulties especially prevalent in recruiting bilingual poll workers.
See, e.g., ECF No. 123-1, at 15-16 (Brevard County's supervisor discussing recruiting difficulties).
This Court also recognizes the great lengths to which many counties are going to recruit bilingual
poll workers. See, e.g., id. at 81 (Okaloosa County's detailed recruiting efforts through Spanish -
language publications and at Latin American festivals). Accordingly, it only orders bilingual poll
workers to the extent practicable given each county's circumstances.
12
Case 1:18-cv-00152-MW-GRJ Document 131 Filed 05/10/19 Page 13 of 16
municipal election between the date of this Order through March 16,
2020,9 stating:
a. For any elections held between the date of this Order and
through March 16, 2020, the supervisor of elections shall make
available a facsimile sample ballot in Spanish to voters who fall
within the ambit of Section 4(e) of the Voting Rights Act. The
sample ballots shall have matching size, information, layout,
placement, and fonts as an official ballot does. The sample
ballots need not be completely identical; for example, the
sample ballot need not contain bar codes or other markings that
official ballots may have or be printed on the same stock, etc.
b. To render this a meaningful remedy, the supervisor of elections
shall publish the same facsimile sample ballot on their website
with Spanish -language directions. To the extent the English-
language ballots are mailed, published, or advertised, such
sample ballots must also include the sample Spanish -language
ballot.
c. The supervisor of elections shall also provide signage in
Spanish at polling places making voters aware of such sample
ballots.
5. Pursuant to the Secretary's "general supervision and administration
of the elections laws," Section 15.13, Florida Statutes, and the
Secretary's authority to "[o]btain and maintain uniformity in the
interpretation and implementation of the elections laws," Section
9 This Court makes the distinction here and in Paragraph 5 between those supervisors of elections
that run or administer municipal elections and those that assist. For example, the Alachua
County Supervisor of Elections "administer[s] the City of Gainesville elections by contract, but
do[es] not administer the elections for any other municipalities, merely providing voter lists and
requested support services." ECF No. 123-1, at 3. According to the declarations of the 29
supervisors of elections, a supervisor's authority over municipal elections varies from county to
county and sometimes even within a county, such as the case of Alachua County.
13
Case 1:18-cv-00152-MW-GRJ Document 131 Filed 05/10/19 Page 14 of 16
97.012(1), Florida Statutes, and pursuant to Fed. R. Civ. P.
65(d)(2)(C), which allows an injunction to bind "other persons who are
in active concert or participation" with the parties, the Secretary shall
provide a separate letter to any municipality holding an election in
which the supervisor of elections merely assists —as opposed to
runs 1O--in the running of that election, stating:
a. For any elections held between the date of this Order and
through March 16, 2020, the municipality shall make available
a facsimile sample ballot in Spanish to voters who fall within
the ambit of Section 4(e) of the Voting Rights Act. The sample
ballots shall have matching size, information, layout,
placement, and fonts as an official ballot does. The sample
ballots need not be completely identical; for example, the
sample ballot need not contain bar codes or other markings that
official ballots may have or be printed on the same stock, etc.
b. To render this a meaningful remedy, the municipality shall
publish the same facsimile sample ballot on their website with
Spanish -language directions. To the extent the English -
language ballots are mailed, published, or advertised, such
sample ballots must also include the sample Spanish -language
ballot.
c. The municipality shall also provide signage in Spanish at
polling places making voters aware of such sample ballots.
6. The Secretary shall file a notice of compliance in this Court within
three (3) days of this Order. The Secretary shall make and maintain
written records of all actions pursuant to this Order sufficient to
10 See supra at 13, n.9.
14
Case 1:18-cv-00152-MW-GRJ Document 131 Filed 05/10/19 Page 15 of 16
document compliance with all requirements of this Order. On or
before August 1, 2019, and on the first of every month thereafter, the
Secretary shall file a notice of compliance in this Court documenting
all actions taken pursuant to this Order.
7. Pursuant to the Secretary's power to "providewritten direction ... to
the supervisors of elections on the performance of their official duties
with respect to the Florida Election Code or rules adopted by the
Department of State," Section 97.012(16), Florida Statutes, and the
Secretary's duty to "[a]ctively seek out and collect the data and
statistics necessary to knowledgably scrutinize the •effectiveness of
election laws," Section 97.012(3), Florida Statutes, the Secretary
shall, within 30 days of an election, collect from each of the 32
supervisors of elections information on (1) what specific steps they
took to comply with Section 4(e) of -the Voting Rights Act and this
Order; (2) how many individuals requested Spanish -language
assistance in the form of sample ballot requests, in -person assistance,
hotline calls, or other forms of aid; (3) how many individual people
accessed the Spanish -language website; and (4) any additional
relevant information." The Secretary shall provide this information
11 This Court is mindful that one -size -fits -all relief is difficult for some counties. The purpose of
this information gathering is to collect meaningful facts moving forward for future relief.
15
Case 1:18-cv-00152-MW-GRJ Document 131 Filed 05/10/19 Page 16 of 16
to this Court within three (3) days of receiving this information from
the supervisors.
8. The Secretary shall attach this Order in its directives to the 32
supervisors of elections in the 32 counties.
9. The Secretary shall attach this Order in its directives to the
municipalities the Secretary is ordered to contact pursuant to
Subsection 5, supra at 13-14.
10. Nothing in this Order shall be construed to limit the Secretary or
supervisors of elections or municipalities from offering more relief. In
other words, this Court is ordering a floor to ensure meaningful
compliance with Section 4(e) rather than a ceiling.
11. Defendant Lee's motion for abeyance, ECF No. 114, is GRANTED.
This case is stayed until the rulemaking process is complete or a party
moves to lift the stay and this Court so orders.
SO ORDERED on May 10, 2019..
sfMark E. Walker
Chief United States District Judge
16
Attachment 2
Ron DeSantis
46th Governor of Florida
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DeSantis/ Nunez Administrative Schedule for Thursday, April 11, 2019Governor Ron DeSantis Reappointment of Eugene Lamb, Jr. to the District
Board of Trustees of Tallahassee Community College
Governor Ron DeSantis Directs Florida Department of State to Address Availability of
Spanish Language Ballots for the 2020 Elections
On April 11, 2019, in News Releases, by Staff
Tallahassee, Fla. — Today, Governor Ron DeSantis directed the Florida Department of State (DOS) to initiate rule -making to address the availability
of Spanish -language ballots and Spanish -language voter assistance for the 2020 elections and all future elections.
"It is critically important that Spanish-speaking Floridians are able to exercise their right to vote without any language barriers," said Governor
DeSantis. "Florida has a significant Spanish-speaking population and our state is home to many Puerto Ricans who moved here after the devastation
of Hurricane Maria. These fellow citizens should be able to fully participate in our democracy, which is why I am directing the Department of State
to address voting accessibility issues for Florida's Spanish-speaking community statewide."
Voter -related materials are already provided in Spanish at the state -level. Currently, 46 counties are subject to varying requirements to accommodate
voters who speak other languages, including 13 counties required under federal law to provide bilingual ballots and election materials.
"As Florida's Chief Elections Officer, one of my top priorities is ensuring that all Floridians have a fair and equal opportunity to vote in our
elections," said Secretary of State Laurel M. Lee. "I applaud Governor DeSantis for his leadership on addressing the availability of Spanish -
language ballots, and I look forward to working with Supervisors of Elections and other stakeholders as we move through the rule -making process."
###
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