Michael Polelle v. Florida Secretary of State

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[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-14031

____________________

MICHAEL J. POLELLE,

Plaintiff-Appellant,

versus

FLORIDA SECRETARY OF STATE,

SARASOTA COUNTY SUPERVISOR OF ELECTIONS,

Defendants-Appellees.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 8:22-cv-01301-SDM-AAS

____________________

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2 Opinion of the Court 22-14031

Before ROSENBAUM, ABUDU, and TJOFLAT, Circuit Judges.

ROSENBAUM, Circuit Judge:

Michael J. Polelle is a voter in Sarasota County, Florida, who

has not registered with a political party. As a result, Florida’s closed

system of primary elections prevents him from participating in any

political party’s primary.

At the same time, though, the Republican primary has de-

termined the outcome of most Sarasota County elections since the

1960s. So Polelle filed suit claiming Florida’s law puts him to an

unconstitutional “Hobson’s choice,” requiring that he either forfeit

his right to a meaningful vote or forfeit his right not to associate

with political groups and messages. The district court dismissed

Polelle’s lawsuit because it concluded he has not suffered an injury

that gives him standing to sue in the federal courts and, alterna-

tively, because he failed to state a claim for relief on the merits.

After careful consideration, and with the benefit of oral ar-

gument, we agree with the district court’s decision to dismiss

Polelle’s case. But we do so after reaching the merits. Polelle has

adequately alleged that he suffered an injury in fact, traceable to

Defendant-Appellee Sarasota County Supervisor of Elections Ron

Turner and redressable by the federal courts. As Polelle points out,

he has both the right to a meaningful vote and the right not to as-

sociate with certain political groups and messages. And Florida’s

closed primary burdens those rights.

Still, that Polelle has suffered an injury sufficient to engage

the federal courts’ jurisdiction does not itself entitle him to relief.

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22-14031 Opinion of the Court 3

And under the relevant Anderson-Burdick 1 framework for evaluat-

ing First and Fourteenth Amendment claims like Polelle’s, Florida’s

legitimate interests in preserving political parties as viable and iden-

tifiable interest groups and enhancing candidates’ electioneering

and party-building efforts outweigh the minimal burdens on

Polelle’s First and Fourteenth Amendment rights. Florida’s system

of closed primary elections may put Polelle to a “Hobson’s choice,”

but it does not do so unconstitutionally.

I. BACKGROUND

The facts of this case are straightforward. Michael J. Polelle

is a current resident of and registered voter in Sarasota County,

Florida. When he registered to vote, Florida law required him to

declare whether he affiliates with a political party and, if so, which

one. See Fla. Stat. § 97.052(2)(j). Polelle declared “No Party Affili-

ation.” Although Florida law permits him to change his party reg-

istration no later than 29 days before the relevant primary election,

id. § 97.055, he has not and will not do so. As a result, Polelle can-

not vote in future Florida primaries for partisan offices.2

1 Anderson v. Celebrezze, 460 U.S. 780 (1983); Burdick v. Takushi, 504 U.S. 428

(1992).

2 Florida distinguishes between political offices that are partisan and non-par-

tisan. For example, elections for judicial offices are non-partisan. See Fla. Stat.

§ 105.061. A voter’s party affiliation (or lack of one) does not impact their

ability to participate in non-partisan primary elections. See id. (describing elec-

tor qualifications for non-partisan elections); id. § 105.041 (describing the form

of the ballot for non-partisan primaries).

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4 Opinion of the Court 22-14031

That’s because Florida’s primaries are closed: “[i]n a primary

election[,] a qualified elector is entitled to vote the official primary

election ballot of the political party designated in the elector’s reg-

istration, and no other.” Id. § 101.021. In fact, “[i]t is unlawful for

any elector to vote in a primary for any candidate running for nom-

ination from a party other than that in which such elector is regis-

tered.” Id.

This rule has one exception. In 1998, Floridians amended

their constitution to except universal primary contests from the

usual system of closed primaries. In a universal primary contest,

“all candidates for an office have the same party affiliation and the

winner will have no opposition in the general election.” FLA.

CONST. art. VI, § 5(b). When that situation occurs, under Florida’s

constitutional amendment, “all qualified electors, regardless of

party affiliation, may vote in the primary elections” for that affected

office. Id.

But this provision applies only if a primary election is

formally dispositive of the outcome of a general election. So if, for

instance, the general election permits write-in candidates, then

Florida’s Constitution does not require a universal

primary. Brinkmann v. Francois, 184 So. 3d 504, 514 (Fla. 2016). That

means Polelle, and more than 3.5 million other Floridians who

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22-14031 Opinion of the Court 5

registered “No Party Affiliation,” 3 generally may not vote in any

political party’s primary.

And that’s so even when, as Polelle alleges is the case here,

the primary is functionally dispositive of the outcome of the general

election. “Republican primaries,” for instance, “have determined

the outcome of most Sarasota County’s partisan elections since

1968.” In fact, “the last non-Republican candidate elected to the

Sarasota County Commission was in 1966, almost 58 years ago.” 4

So Polelle filed suit pro se under 42 U.S.C. § 1983 against De-

fendants-Appellees Cord Byrd, Florida Secretary of State, and Ron

Turner, Supervisor of Elections for Sarasota County, Florida (col-

lectively, “Defendants,” “the State,” or “Florida”). He alleged three

claims for relief: (1) a violation of his First Amendment freedoms

from compelled speech or association; (2) a violation of his funda-

mental right to vote, as secured by the First and Fourteenth

Amendments; and (3) a violation of his rights to the equal protec-

tion of the laws, as secured by the Fourteenth Amendment.

3 Voter Registration - By Party Affiliation, FLORIDA DIVISION OF ELECTIONS (Aug.

14, 2024), https://dos.fl.gov/elections/data-statistics/voter-registration-sta-

tistics/voter-registration-reports/voter-registration-by-party-affiliation/

[https://perma.cc/M7C6-J2LU].

4 Carrie Seidman, In Sarasota County, Voters May Find It’s Better To Switch Than

Stick, SARASOTA HERALD-TRIB. (May 10, 2024), https://www.heraldtrib-

une.com/story/opinion/columns/2024/05/10/sarasota-county-voters-are-

embracing-the-need-to-switch-parties/73629882007/

[https://perma.cc/YV62-R7KW].

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6 Opinion of the Court 22-14031

To address these alleged violations, Polelle sought two forms

of relief: a declaration that Florida’s closed-primary statute, Fla.

Stat. § 101.012, and its universal-primary exception, FLA. CONST.

art. VI, § 5(b), violate the First and Fourteenth Amendments both

facially and as applied to him; and an injunction prohibiting De-

fendants from enforcing those provisions or any others that pre-

vent Polelle from voting in future primary elections while he main-

tains his “Not Party Affiliated” status.

Defendants Secretary Byrd and Supervisor Turner filed sep-

arate motions to dismiss Polelle’s complaint. They argued that

Polelle lacked standing to challenge Florida’s primary elections sys-

tem and, in the alternative, that he failed to state a claim for relief.

Both arguments stemmed from the position that a putative voter

does not have a constitutional interest in voting in the primary elec-

tion of a political party to which that person does not belong.

The district court granted Defendants’ motions. It accepted

the argument that Polelle had only a “desire” to vote in a party pri-

mary, not a legally protected interest sufficient to afford him stand-

ing to sue in the federal courts. And, the district court held, even if

Polelle had standing, Polelle failed to state a claim. The court con-

cluded that Florida’s interest in preventing unaffiliated voters’ po-

tential to undermine a political party’s candidate-selection process

outweighed Polelle’s desire to vote in a partisan primary election,

especially given the minimal burdens that Florida law imposes on

voters who wish to join or switch political parties.

Polelle timely appealed.

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II. STANDARDS OF REVIEW

We review de novo the threshold jurisdictional question of

whether plaintiffs enjoy standing to sue in the federal courts. Mu-

ransky v. Godiva Chocolatier, Inc., 979 F.3d 917, 923 (11th Cir. 2020)

(en banc). And because standing involves our jurisdiction, we must

raise sua sponte any issues related to standing that we spot. AT&T

Mobility, LLC v. Nat’l Ass’n for Stock Car Auto Racing, Inc., 494 F.3d

1356, 1360 (11th Cir. 2007).

As to the merits, we review de novo an order granting a mo-

tion to dismiss with prejudice. Young Apartments, Inc. v. Town of Ju-

piter, 529 F.3d 1027, 1037 (11th Cir. 2008). In conducting our review,

“we must accept the complaint’s allegations as true, construing

them in the light most favorable to the plaintiff.” Arrington v. Burger

King Worldwide, Inc., 47 F.4th 1247, 1253 (11th Cir. 2022). To survive

a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6),

a complaint must contain “enough facts to state a claim to relief

that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007); see also FED. R. CIV. P. 8(a)(2). In other words, a plaintiff

must “plead[] factual content that allows the court to draw the rea-

sonable inference that the defendant is liable for the misconduct

alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

III. DISCUSSION

Our discussion proceeds in two parts. First, we address De-

fendants’ jurisdictional arguments that Polelle lacks standing to sue

in the federal courts. We conclude he has standing to sue Supervi-

sor Turner. But Polelle has failed to show his injuries are traceable

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8 Opinion of the Court 22-14031

to Secretary Byrd, so Polelle lacks standing to sue him. Second, we

consider the merits of Polelle’s complaint. We conclude that he

has failed to state a claim for relief. So the district court correctly

dismissed Polelle’s suit.

A. Polelle has standing to sue for violations of his First and Four-

teenth Amendment rights.

Article III of the Constitution limits federal courts to decid-

ing “Cases” and “Controversies.” U.S. CONST. art. III, § 2. That

limitation, which we call “standing,” “defines with respect to the

Judicial Branch the idea of separation of powers on which the Fed-

eral Government is founded.” Alabama-Tombigbee Rivers Coal. v.

Norton, 338 F.3d 1244, 1252 (11th Cir. 2003) (quoting Allen v. Wright,

468 U.S. 737, 750 (1984)). It stems from “concern about the

proper—and properly limited—role of the courts in a democratic

society.” Warth v. Seldin, 422 U.S. 490, 498 (1975).

Polelle must make three showings to enjoy standing to sue

in a federal court: (i) that he “suffered an injury in fact that is con-

crete, particularized, and actual or imminent”; (ii) that Secretary

Byrd or Supervisor Turner (or both) “likely caused” his injury; and

(iii) that a favorable judicial decision can likely redress his injury.

TransUnion LLC v. Ramirez, 594 U.S. 413, 423 (2021). If Polelle does

not satisfy his burden on all three requirements, “there is no case

or controversy for the federal court to resolve.” Id. (quoting Casil-

las v. Madison Ave. Assocs., 926 F.3d 329, 333 (7th Cir. 2019)). And in

that case, we lack jurisdiction.

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Here, all three requirements are at issue. Both Defendants

assert that Polelle has not experienced an injury in fact. And Sec-

retary Byrd contends that, even if Polelle has suffered an injury in

fact, Polelle failed to plead that Secretary Byrd caused Polelle’s in-

jury and, therefore, that an injunction or declaration against Secre-

tary Byrd would redress Polelle’s injury. We address each argument

in turn.

1. Polelle alleges an injury in fact sufficient to confer stand-

ing to sue in the federal courts.

“It is beyond cavil that ‘voting is of the most fundamental

significance under our constitutional structure.’” Burdick v. Taku-

shi, 504 U.S. 428, 433 (1992) (quoting Ill. Bd. of Elections v. Socialist

Workers Party, 440 U.S. 173, 184 (1979)).

In light of voting’s importance, Polelle argues that he suffers

an injury when Florida excludes him, a political-party non-affiliate,

from participating in partisan primary elections that effectively de-

termine the political choice for certain public offices. Polelle fur-

ther asserts this exclusion burdens a constellation of related consti-

tutional rights—his right to a meaningful vote, his right not to as-

sociate with political groups and messages, and his right to the

equal protection of the laws. 5

5 Polelle also contends that he has standing to sue Supervisor Turner as a mu-

nicipal taxpayer because Sarasota County allocates a portion of his ad valorem

tax proceeds to operate the partisan primary elections in which he cannot par-

ticipate. Because we conclude that Polelle has traditional standing to sue

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10 Opinion of the Court 22-14031

Defendants do not dispute that Polelle’s alleged injuries sat-

isfy many of the defining characteristics of an injury in fact. They

don’t contest that his alleged injuries are “concrete,” “particular-

ized,” and “actual” or “imminent.” Nor could they.

Polelle’s alleged injuries are certainly particularized. That is,

they are “individual and personal in nature,” Reynolds v. Sims, 377

U.S. 533, 561 (1964), as opposed to generalized grievances that an-

ybody could pursue, Gladstone Realtors v. Village of Bellwood, 441 U.S.

91, 99–100 (1979). Our precedent in Jacobson v. Florida Secretary of

State exemplifies this distinction. There, we held that voters “have

no judicially enforceable interest in the outcome of an election.” 974

F.3d 1236, 1246 (11th Cir. 2020) (citing Raines v. Byrd, 521 U.S. 811,

819, 824, 830 (1997)). A voter suffers no “particularized” injury

when their preferred candidate or ballot measure fails. See Raines,

521 U.S. at 819, 829 (concluding legislators suffer “no injury to

themselves as individuals” when a President vetoes a line-item in a

bill for which they voted). If a voter did, after any election, as much

as nearly half the population could claim injury without any show-

ing that they have a “‘personal stake’ in the alleged dispute.” Id. at

Supervisor Turner, we do not address his taxpayer-standing arguments. And

although we conclude Polelle does not have traditional standing to sue Secre-

tary Byrd, we do not assess whether Polelle has standing to sue Secretary Byrd

as a taxpayer. Polelle claimed standing as a municipal taxpayer only, not as a

state taxpayer aggrieved with Secretary Byrd’s execution of a statewide office.

See Pelphrey v. Cobb County, 547 F.3d 1263, 1280 (11th Cir. 2008) (recognizing

“the distinction between standing of municipal taxpayers and standing of fed-

eral or state taxpayers”).

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819; see Wood v. Raffensperger, 981 F.3d 1307, 1314–15 (11th Cir. 2020)

(“[I]rregularities in the tabulation of election results do not affect

Wood differently from any other person,” including “the four mil-

lion or so Georgians who voted in person this November.”).

By contrast, we and the Supreme Court have long recog-

nized that voters assert a “particular injury” when they allege their

“inability to vote in a particular election,” Memphis Cmty. Sch. Dist.

v. Stachura, 477 U.S. 299, 312 n.14 (1986), or when some government

action undermines the effectiveness of their vote, see Gill v. Whit-

ford, 585 U.S. 48, 65–68 (2018). And Polelle alleges those depriva-

tions here: that Florida’s closed-primary statute limits his “ability to

vote” in certain primary elections and ensures that his “vote [is not]

given the same weight as any other.” Jacobson, 974 F.3d at 1246. So

Polelle’s complaint adequately identifies “disadvantage[s] to [him-

self ] as [an] individual[].” Gill, 585 U.S. at 65–66 (quoting Baker v.

Carr, 369 U.S. 186, 206 (1962)).

Polelle’s injuries are also imminent. Polelle squarely alleges

that “[u]nless this Court intervenes, Defendants will continue

to . . . prohibit [him] from voting in” future Florida primary elec-

tions and deny him the right to an effective vote. These allegations

are sufficient to show his injuries are “certainly impending.” Clap-

per v. Amnesty Int’l USA, 568 U.S. 398, 410 (2013). Without declara-

tory or “injunctive relief,” nothing will stop those “harm[s] from

occurring.” TransUnion, 594 U.S. at 435; City of Los Angeles v. Lyons,

461 U.S. 95, 102 (1983); cf. Hero v. Lake Cnty. Election Bd., 42 F.4th 768,

772 (7th Cir. 2022) (“A routine past harm, such as denial of access

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12 Opinion of the Court 22-14031

to a ballot, presents a textbook example an ‘actual’ injury suf-

fered.”).

And Polelle’s asserted injuries are undoubtedly “concrete.”

The “concreteness” requirement ensures the alleged injury is

“‘real,’ and not ‘abstract,’” Spokeo, Inc. v. Robins, 578 U.S. 330, 340

(2016), so “that the plaintiff has a real stake in the litigation,” Drazen

v. Pinto, 74 F.4th 1336, 1339 (11th Cir. 2023) (en banc). Tangible

harms, such as “physical injury and financial loss,” easily satisfy this

requirement. Id. But intangible harms may also be concrete. Id.

When we evaluate whether an asserted intangible injury can

satisfy Article III’s concreteness requirement, we consider

“whether that harm has a close relationship to a harm that has tra-

ditionally been regarded as providing a basis for a lawsuit in English

or American courts.” Drazen, 74 F.4th at 1343 (cleaned up). And in

making that comparison, we consider only whether the asserted

harm is “similar in kind” to the traditional harm; the injuries need

not be of the same “degree” or severity. Id. at 1344.

Constitutional injuries are prototypical concrete injuries.

TransUnion, 594 U.S. at 425. After all, “where there is a legal right,

there is also a legal remedy by suit or action at law.” Marbury v.

Madison, 5 U.S. (1 Cranch) 137, 163 (1803) (citation omitted). So

the First and Fourteenth Amendments’ possible protection of

Polelle’s asserted rights renders his injuries concrete.

But voting-rights claims are also concrete independent of

their constitutional make-up; they are the “kind” of injury for

which Americans have always sued to seek redress. “For most of

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the nation’s history”—indeed, well before Americans ratified the

Fourteenth Amendment, which now constitutionally secures

Americans’ voting rights—voters sought common-law remedies

when an “election official,” either “mistakenly or intentionally,” de-

nied “a voter’s ballot or registration.” 6 Note, Voting Wrongs and

6 As we explain in the text, the harm stemming from an election official’s in-

terference with a person’s vote at common law is similar in kind (if not the

same as) the harm arising from the government’s degradation of a person’s

vote in modern elections. Still, we note one distinction between voting-rights

claims at common law and those Polelle now brings: a mens rea element. In

some circumstances, plaintiffs had to prove that a defendant “by a consciously

wrongful act intentionally deprive[d]” them “of a right to vote in a public elec-

tion.” RESTATEMENT (FIRST) OF TORTS § 865 (Am. L. Inst. 1939). Even so, that

scienter element does not affect the concreteness of Polelle’s injury because it

is not “essential to the harm” in the relevant common-law comparator, Dra-

zen, 74 F.4th at 1343 (quoting Hunstein v. Preferred Collection & Mgmt. Servs., 48

F.4th 1236, 1249 (11th Cir. 2022) (en banc))—a deprivation of his voting rights.

Instead, mens rea presents a question of a defendant’s “culpability” and “blame-

worth[iness].” Morissette v. United States, 342 U.S. 246, 252 (1952). True, in

some circumstances, a defendant’s mental state may relate to the degree of in-

jury or causation; some courts have concluded intentional conduct is more

likely to cause a more severe injury than would result in the case of an accident

or negligence. Cf. Raybon v. United States, 867 F.3d 625, 632 (6th Cir. 2017)

(explaining the extent of an injury can prove the intent to cause the requisite

quantum of harm). But a defendant’s mental state does not change the kind

of injury a defendant inflicts upon a plaintiff. And it’s the kind of injury, as

opposed to the degree of injury, that’s at the core of our concreteness analysis.

Drazen, 74 F.4th at 1343; see Hunstein, 48 F.4th at 1256 (Pryor, C.J., concurring)

(“We apply TransUnion’s simple rule that an element must be present if that

element is necessary for the presence of the harm that was traditionally action-

able.” (emphasis in original) (citation omitted)). After all, if an election official

denies a voter’s ballot or dilutes or nullifies the effectiveness that ballot, the

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14 Opinion of the Court 22-14031

Remedial Gaps, 137 HARV. L. REV. 1182, 1182 (2024). In fact, “[t]hat

private damage may be caused by” the infringement of a person’s

right to vote “and may be recovered for in suit at law hardly has

been doubted for over [three] hundred years.” Nixon v. Herndon,

273 U.S. 536, 540 (1927).

And we have long recognized that states may abridge a per-

son’s right to vote by means other than simply denying that per-

son’s ballot in a general election. Voters, for instance, have a con-

crete interest in “maintaining the effectiveness of their votes” that

forms of “dilution” may impair. Baker, 369 U.S. at 208 (quoting

Coleman v. Miller, 307 U.S. 433, 438 (1939)); see Jacobson, 974 F.3d at

1246 (“Voters . . . have an interest in their ability to vote and in their

vote being given the same weight as any other.”). And those inter-

ests are no less important because they occur in a primary election:

“If the defendants’ conduct was a wrong to the plaintiff[,] the same

reasons that allow a recovery for denying the plaintiff a vote at a

final election allow it for denying a vote at the primary election that

may determine the final result.” Nixon, 273 U.S. at 540; see also

United States v. Classic, 313 U.S. 299, 310, 314 (1941) (concluding

“[i]nterference with the right to vote” may occur in a primary that

is the “only stage of the election procedure when” a voter’s “choice

is of significance”). So Polelle has adequately pled an imminent,

particular, and concrete injury.

voter suffers harm whether the election official acted intentionally, uninten-

tionally, in good-faith, or in bad-faith.

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Still, Defendants argue that Polelle lacks standing because he

has not alleged a deprivation of a “legally protected interest.” Lujan

v. Defs. of Wildlife, 504 U.S. 555, 560 (1992); see Trichell v. Midland

Credit Mgmt., Inc., 964 F.3d 990, 996–97 (11th Cir. 2020) (“Each sub-

sidiary element of injury—a legally protected interest, concrete-

ness, particularization, and imminence—must be satisfied.”). They

claim Polelle has no “constitutional right” to or “interest” in “se-

lecting the candidate of a group to which one does not belong, if

indeed [that] can even fairly be characterized as an interest.” Cal.

Democratic Party v. Jones, 530 U.S. 567, 573 n.5 (2000). Rather, they

assert, “only the party proper, and not individual members of the

party, may challenge a state’s regulation of a political party’s pri-

mary.” Osburn v. Cox, 369 F.3d 1283, 1287 (11th Cir. 2004).

We disagree. Defendants’ contention conflates the merits

with standing and mischaracterizes the injuries that Polelle asserts.

The Supreme Court has been clear that “standing in no way

depends on the merits of the plaintiff’s” claim. Warth, 422 U.S. at

500; see Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 576

U.S. 787, 800 (2015) (explaining “one must not confuse weakness

on the merits with absence of Article III standing” (cleaned up)).

And we have similarly cautioned that “in reviewing the standing

question,” we “must be careful not to decide the questions on the

merits for or against the plaintiff.” Culverhouse v. Paulson & Co., 813

F.3d 991, 994 (11th Cir. 2016) (quoting City of Waukesha v. EPA, 320

F.3d 228, 235 (D.C. Cir. 2003)) (cleaned up). So we generally assess

plaintiffs’ standing “assum[ing] that on the merits the plaintiffs

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16 Opinion of the Court 22-14031

would be successful in their claims.” Id. (quoting City of Waukesha,

320 F.3d at 235).

For that reason, a plaintiff alleges “the invasion of a legally

protected interest” when a “plaintiff has a right to relief if the court

accepts the plaintiff’s interpretation of the constitutional or statu-

tory laws on which the complaint relies.” CHKRS, LLC v. City of

Dublin, 984 F.3d 483, 488 (6th Cir. 2021) (citing Steel Co. v. Citizens for

a Better Env’t, 523 U.S. 83, 89–90 (1998)). As a result, asserting the

deprivation of a constitutional interest normally satisfies standing’s

injury-in-fact requirement.

To be sure, we have noted that “our standing analysis” may

require “us to take a ‘peek’ at the merits” of a party’s constitutional

claim. Club Madonna, Inc. v. City of Miami Beach, 924 F.3d 1370, 1382

(11th Cir. 2019). But we entertain that “limited inquiry into the

merits of the plaintiff’s claim to determine [only] whether the in-

jury the plaintiff asserts might stem from a violation of [a] constitu-

tional guarantee.” Cone Corp. v. Fla. Dep’t of Transp., 921 F.2d 1190,

1204 n.35 (11th Cir. 1991) (emphasis added). In other words, an

infirmity in the merits transforms into a jurisdictional defect only

where “such a claim is wholly insubstantial and frivolous.” Bell v.

Hood, 327 U.S. 678, 682–83 (1946) (discussing subject-matter juris-

diction); see CHKRS, LLC, 984 F.3d at 489 (extending Bell to stand-

ing).

Our precedent shows this principle in action. In Club Ma-

donna, for instance, we held that the plaintiff club lacked standing

to assert First Amendment claims to recover the costs of complying

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with the City’s ordinance regulating nude establishments. Club Ma-

donna, 924 F.3d at 1375–76. We explained the club lacked standing

because it could not “clear the low bar of demonstrating that the

challenged provisions are at least arguably vague as applied to it.” Id.

at 1383 (emphasis added).

Similarly, we held in Bowen v. First Family Financial Services

that the plaintiffs lacked standing to challenge a lender’s practice of

requiring customers to sign an arbitration agreement. 233 F.3d

1331, 1333 (11th Cir. 2000). We reached that conclusion because,

as in Club Madonna, the plaintiffs in Bowen could not show that the

lender would take “some action that at least arguably violate[d]” any

law. Id. at 1340 (emphasis added). The bottom line is that plaintiffs

allege a legally protected interest when they meet the “low bar” of

pointing to some arguable or colorable federal or constitutional in-

terest. 7

7 The speculative nature of an alleged injury may also require us to peek at the

merits. See, e.g., J.W. ex rel. Williams v. Birmingham Bd. of Educ., 904 F.3d 1248

(11th Cir. 2018) (concluding students lacked standing to challenge police use

of an incapacitating chemical spray because each student had an estimated .4%

chance of being subject to the spray and a .0003% chance of being subject to

an unconstitutionally excessive use of the chemical spray); Corbett v. Transp.

Sec. Admin., 930 F.3d 1225, 1238 (11th Cir. 2019) (holding plaintiff failed to

show an imminent injury because the chance the TSA would screen him un-

constitutionally was “entirely too speculative”). But no one argues Polelle’s

alleged injury is speculative, and we find no basis to reach that conclusion,

either. In any case, because the “legally protected interest” requirement over-

laps so heavily with the merits of a plaintiff’s constitutional claim, we must be

careful to dismiss suits for lack of a “legally protected interest” only when a

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18 Opinion of the Court 22-14031

Polelle clears that hurdle here. His claims are certainly col-

orable. For starters, voters undoubtedly “have an interest in their

ability to vote and in their vote being given the same weight as any

other.” Jacobson, 974 F.3d at 1246; cf. id. (concluding Jacobson

lacked standing because she “failed to identify any difficulty in vot-

ing for her preferred candidate or otherwise participating in the po-

litical process”).

And the First Amendment, as incorporated through the

Fourteenth Amendment, secures Polelle’s freedom “from state dis-

crimination based on the content of his speech.” Duke v. Massey, 87

F.3d 1226, 1232 (11th Cir. 1996); see W. Va. State Bd. of Educ. v. Bar-

nette, 319 U.S. 624, 642 (1943) (“[N]o official, high or petty, can pre-

scribe what shall be orthodox in politics . . . or other matters of

opinion or force citizens to confess by word or act their faith

therein.”). That includes Polelle’s freedom from exclusion from

primary elections based on his political non-affiliation. See Duke, 87

F.3d at 1232 & n.6 (addressing Duke’s exclusion from a Republican

primary ballot because of his claimed “Nazi ties”).

Plus, under the Equal Protection Clause, a voter’s injury in

fact “is the denial of equal treatment” through some state-created

“barrier” that does not apply to all voters or “that makes it more

difficult for members of one group” to participate in the electoral

process. Common Cause/Georgia v. Billups, 554 F.3d 1340, 1351 (11th

plaintiff cannot assert any possible constitutional interest. Otherwise, we risk

dismissing “every losing claim . . . for want of standing.” Initiative & Referen-

dum Inst. v. Walker, 450 F.3d 1082, 1092 (10th Cir. 2006) (en banc).

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Cir. 2009) (emphasis added) (quoting Ne. Fla. Chapter of Assoc. Gen.

Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 666 (1993)).

So the First and Fourteenth Amendments ultimately pro-

tect, and Florida’s law ultimately burdens, in some form, each of

the interests Polelle asserts in his complaint. A requirement that

forces Polelle to either register with a political party (which the

First Amendment allows Polelle to refuse) or forfeit his ability to

cast a meaningful ballot (an opportunity the Fourteenth Amend-

ment guarantees) places him at a conceivable disadvantage com-

pared to other voters who affiliate with political parties. And it

does so potentially in violation of the Equal Protection Clause.

That is all our standing precedent requires of Polelle at this stage.

Supreme Court precedent confirms our characterization of

Polelle’s injuries. In Nader v. Schaffer, voters brought the exact same

First and Fourteenth Amendment claims that Polelle now brings.

417 F. Supp. 837, 842 (D. Conn.), aff’d mem., 429 U.S. 989 (1976). The

three-judge panel there resolved the complaints on the merits, ra-

ther than standing. See id. at 850 (concluding Connecticut’s closed

primaries were “constitutionally permissible”). And the Supreme

Court affirmed the panel’s decision. We discuss Nader’s rationale

in greater detail when we assess the merits of Polelle’s claims. But

for now, it’s worth emphasizing that our holding that Polelle has

alleged legally protected interests sufficient to confer standing to

sue in the federal courts comports with Supreme Court precedent.

So as for Defendants’ contention that Polelle claims a right

to or associational interest in selecting candidates for the

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20 Opinion of the Court 22-14031

Republican Party of Florida, or any other political party, that is

wrong. As we’ve explained, Polelle filed suit to vindicate his own

right to “vote in elections with the same effectiveness as party vot-

ers” without “forfeit[ing] his other fundamental right not to associ-

ate or identify himself with political parties.” In other words,

Polelle claims injury because he can’t vote at the critical juncture

of the election for certain public offices, not because the State pre-

vents him from voting for a Republican candidate specifically.

The relief Polelle requests also shows this to be the case. Alt-

hough Polelle has acknowledged that he would vote in a party pri-

mary if granted the opportunity, he has also disclaimed a request

for an injunction requiring Defendants to issue him a ballot for and

accept his vote in future party primaries should that relief infringe

political parties’ associational interests. Rather, he asks that the dis-

trict court declare the current system of closed partisan primaries

facially unconstitutional and prevent its enforcement, permitting

the State and its officials to choose among potentially constitu-

tional alternatives.

These facts also make Osburn and Jones—cases on which De-

fendants rely—unhelpful to Defendants, at least on the issue of

standing.

In Osburn, Georgia voters tried to close an “open” primary

that enabled citizens to vote in any political party’s primary

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22-14031 Opinion of the Court 21

regardless of their political affiliation.8 369 F.3d at 1286. We held

that those voters lacked standing to assert First Amendment claims

because the political party was the one with the “right to both ex-

pand and limit the persons that the party wishes to include in its

primary elections.” Id. at 1287. The associational right to exclude

voters from a primary belonged not to the party’s “individual

members” but to the “party proper.” Id. at 1287. In other words,

the plaintiffs lacked standing to bring the First Amendment claims

because those asserted interests were not “individual and personal

in nature,” Reynolds, 377 U.S. at 561—the voters attempted to assert

rights held by an organization that they did not represent.

In contrast to our conclusion that the voters lacked standing

to assert First Amendment claims, we reached the merits of the

voters’ claims that Georgia’s open primary system violated the

Fourteenth Amendment, Fifteenth Amendment, and Section 2 of

the Voting Rights Act (“VRA”). Osburn, 369 F.3d at 1288. We did

so because those claims plainly concerned “disadvantage[s] to” the

voters “as individuals.” Baker, 369 U.S. at 206. To state claims for

relief, we explained, the voters had to show that, under the open

primary system, “they lack[ed] the equal opportunity to participate

in the political process,” Osburn, 369 F.3d at 1288 (emphasis added)

(Fourteenth Amendment), and that “they ‘[had] less opportunity

8 One distinguishing feature of an open primary is that “the voter is limited to

one party’s ballot.” Jones, 530 U.S. at 577 n.8. So for example, a voter who

chooses to vote in the Republican primary—whether affiliated with that party

or not—must vote in the Republican primary for each office.

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22 Opinion of the Court 22-14031

than other members of the electorate to participate in the political

process and to elect representatives of their choice,’” id. (emphasis

added) (quoting 52 U.S.C. § 10301(b)).

Polelle asserts a claim here that’s analogous to the Osburn

plaintiffs’ Fourteenth Amendment, Fifteenth Amendment, and

VRA claims: that the closed primary limits the effectiveness of his

vote. So Osburn supports, if not compels, the conclusion that Polelle

has suffered and will imminently suffer an injury in fact.

Jones does not help Defendants, either. There, California en-

acted a “blanket” primary. 530 U.S. at 570. Under that system,

every voter could vote in the primary, and every voter’s primary

ballot listed every candidate, regardless of the voter’s affiliation. Id.

The top vote-getter affiliated with each party became that party’s

nominee in the general election. Id. After four political parties as-

serted that the regime violated their First Amendment rights, the

Court held the blanket primary unconstitutional because it in-

truded into the height of each political party’s associational inter-

est, “the process of selecting its nominee.” Id. at 571, 575, 586. This

ruling does not bear on whether Polelle has standing here for three

reasons.

First, Jones did not address the question of whether voters

have standing to challenge a state’s system of primary elections.

The relevant parties were California and the local political organi-

zations, not putative voters. In fact, the Court clarified that voters’

right to a meaningful vote, among other things, was not “really at

issue.” Id. at 573 n.5. As the Court confirmed, “[s]electing a

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22-14031 Opinion of the Court 23

candidate”—the First Amendment right that the political parties

asserted—“is quite different from voting for the candidate of one’s

choice” or “cast[ing] a meaningful vote”—the claim Polelle raises.

Id. So the Court did not consider the question of whether voters

have standing to argue that a closed primary infringes their rights

to an effective vote, to be free of political coercion, or to the equal

protection of the laws.

Second, and relatedly, the Court concluded that voters’

rights were not really at issue because California did not choose a

tailored means of securing them; rather, the State needlessly in-

fringed the political parties’ right to choose their nominee. Id. at

585–86; see also N.Y. State Bd. of Elections v. Lopez Torres, 552 U.S. 196,

207 (2008) (“[I]t is hard to understand how the competitiveness of

the general election has anything to do with respondents’ associa-

tional rights in the party’s selection process.”). California’s error

was that it failed to disaggregate voters’ interests in a meaningful

vote from the political parties’ right to select their candidate. In-

stead, the State contended that “the only way to ensure [voters]

have an ‘effective’ vote is to” enact a blanket primary. Jones, 530 U.S.

at 583.

But that contention was incorrect. As the Court made clear,

California’s blanket primary was “not a narrowly tailored means of

furthering” the State’s compelling interest in ensuring fair elections

for voters in “safe” districts. Id. at 585–86. Had California wished

to pursue its asserted interests, the Court reasoned, California

“could [have] protect[ed] them all by resorting to a nonpartisan

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24 Opinion of the Court 22-14031

blanket primary,” id. at 585, or, potentially, an open primary, see id.

at 577 n.8.

And as it turns out, those are the forms of primary elections

that Polelle argues Florida could enact should he succeed on the

merits. So the “constitutionally crucial” distinction between the

issue in Jones and the claims that Polelle now asserts is that Polelle

seeks to obtain redress for his own concrete injuries—his right to a

meaningful vote, among other things—and that requested redress

is “not inherently incompatible” with political parties’ “First

Amendment rights.” Id. at 586 (explaining “the State of California”

made those rights incompatible by “forcing political parties to as-

sociate with those who do not share their beliefs”).

Third, even if we were to assume that Defendants properly

characterized Polelle’s complaint as asserting a right to or associa-

tional interest in selecting the candidates of a political party to

which Polelle does not belong (they do not), we cannot say such an

assertion is so “wholly insubstantial and frivolous” that he lacks

standing.

To start, a nonmember’s desire to participate in a political

party’s primary may not inherently burden the political party’s

right to select its candidate. Jones suggested this when it expressly

reserved the question of whether open primaries are facially un-

constitutional. See id. at 577 n.8. The Court recognized that the

open primary “may be constitutionally distinct” from “the blanket

primary” because the use of only “one party’s ballot” could “be

described as an act of affiliation with” that party sufficient to limit

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the constitutional burden on parties concerned about outsiders se-

lecting their candidate. 530 U.S. at 577 n.8 (quoting Democratic Party

of U.S. v. Wis. ex rel. La Follette, 450 U.S. 107, 130 n.2 (1981) (Powell,

J., dissenting)).

We similarly don’t pass on the constitutionality of a manda-

tory open primary. We don’t need to because Jones expressly left

open the possibility that Polelle may participate as a nonmember

in a political party’s primary without substantially burdening the

party’s associational interests, at least if he does so through a single-

party ballot (like the one Florida already uses). See, e.g., Democratic

Party of Haw. v. Nago, 833 F.3d 1119, 1125 (9th Cir. 2016) (upholding

Hawaii’s open primary in part because “the extent of the burden

that” it “imposes on the Democratic Party’s associational rights is

a factual question on which the Party bears the burden of proof ”);

Miller v. Cunningham, 512 F.3d 98, 106 (4th Cir. 2007) (Wilkinson, J.,

dissenting from the denial for rehearing en banc) (criticizing the

panel opinion for its narrow ruling that did not broadly declare Vir-

ginia’s open primary constitutional). And that means, even under

Defendants’ interpretation of Polelle’s complaint, his legal position

is not so “wholly insubstantial and frivolous” that we lack jurisdic-

tion.

And even if Polelle’s asserted interests substantially con-

flicted with political parties’ First Amendment rights (they do not),

Jones’s narrowest reading is not that Polelle lacks a constitutional

interest but that his interests just don’t overcome a party’s right to

select its candidate. Indeed, the Court rejected as uncompelling

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26 Opinion of the Court 22-14031

California’s asserted interest in supporting safe-district voters’ right

to an effective vote because “a nonmember’s desire to participate

in the party’s affairs is overborne by the countervailing and legiti-

mate right of the party to determine its own membership qualifi-

cations.” Id. at 583 (quoting Tashjian v. Republican Party of Conn.,

479 U.S. 208, 215 n.6 (1986)). The Court added that “[t]he voter’s

desire to participate does not become more weighty simply be-

cause the State supports it.” Id. at 583–84. Because Jones focused

on the relative “weight[]” of the State and political parties’ inter-

ests, id. at 584, its conclusions went to the merits, not standing.

Plus, even if we assumed that Defendants properly charac-

terized Polelle’s complaint and correctly read Jones as bearing on

Polelle’s standing (they do not), Defendants’ arguments still fail. In

Clingman—which issued five years after Jones and one year after Os-

burn—the Supreme Court rejected on the merits—and not for lack

of standing—voters’ and a political party’s attempt to open Okla-

homa’s semi-closed primary.9 544 U.S. at 598. A majority of the

Court concluded that the voters had constitutionally protected in-

terests in voting in the primary elections of parties to which they

did not belong. See id. at 599 (O’Connor, J., concurring in part and

concurring in the judgment) (“[R]espondents’ claim implicates im-

portant associational interests.”); id. at 608 (Stevens, J., dissenting)

9 In a semi-closed or semi-open primary, “a political party may invite only its

own party members and voters registered as Independents to vote in the

party’s primary.” Clingman, 544 U.S at 584. Voters registered with political

parties may not vote in another political party’s primary.

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22-14031 Opinion of the Court 27

(“[T]he voters in this case certainly have an interest in associating

with the LPO.”). So again, even Defendants’ reading of Jones

doesn’t make Polelle’s claims so “wholly insubstantial and frivo-

lous” that Polelle failed to plead a legally protected interest.

The Partial Dissent disagrees with our assessment of

Polelle’s claim and Defendants’ arguments. Based on the preceding

analysis, it characterizes Polelle’s claim as nothing more than a

complaint that his vote is insufficient to ensure the election of his

preferred candidate. Part. Diss. Op. at 10–11. And if the Partial

Dissent were correct and Polelle’s only proffered injury were

simply that his preferred candidate lost, he would not have standing

to sue. See Jacobson, 974 F.3d at 1246.

But as we’ve already explained, Polelle premises his claims

on opportunity, not outcome. Indeed, as even the Partial Dissent

recounts, Polelle alleges that he lacks the same “opportunity to affect

the outcome of a general election” as do his peers who can partic-

ipate in the outcome-determinative primary election. 10 Part. Diss.

Op. at 10 (emphasis added).

10 The Partial Dissent suggests our distinction between outcome and oppor-

tunity is mere wordplay. Part. Diss. Op. at 11. Not so. To be sure, outcome

and opportunity are related: any “abridgment of the opportunity” to “partici-

pate in the political process inevitably impairs [one’s] ability to influence the

outcome of an election.” Chisom v. Roemer, 501 U.S. 380, 397 (1991). But a

voter’s concern about an election’s outcome does not taint the injury that lim-

itations on that voter’s ability to participate in the political process inflict.

Plaintiffs lack standing when they identify “an unfavorable electoral outcome,

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28 Opinion of the Court 22-14031

That Polelle can cast a ballot in the general election does not

eliminate his injury. Just as voters in a packed or cracked district

allege a constitutional injury despite their ability to cast a ballot in

a packed or cracked election,11 see Gill, 585 U.S. at 67, voters ex-

cluded from an outcome-determinative primary election allege a

deprivation of their “constitutional right of choice” despite their

ability to “write into their ballots” or “cast at the general election,

the name of a candidate rejected at the primary,” Classic, 313 U.S.

at 313, 319.

The point is that an electoral scheme injures voters when it

causes them to “‘waste’ their votes in elections where their chosen

candidates . . . are destined to lose,” Gill, 585 U.S. at 66, for instance,

by ensuring an election’s winner is necessarily determined at a prior

election stage in which some voters cannot participate, see Terry v.

wholly apart from any allegation of vote dilution or nullification” or denial.

Jacobson, 974 F.3d at 1247 (emphasis added). And that is not the case here.

Polelle claims to suffer an injury because he cannot participate in a primary

that decides the election. That kind of limitation on Polelle’s opportunity to

participate in the political process is a particularized, actual, and concrete in-

jury. See Stachura, 477 U.S. at 312 n.14 (“[T]he Court recognized that the plain-

tiff had suffered a particular injury—his inability to vote in a particular election

. . . .”); see also Jacobson, 974 F.3d at 1246; Classic, 313 U.S. at 313, 319.

11 “Cracking” and “packing” are terms that come up sometimes in gerryman-

dering cases. “Cracking means dividing a party’s supporters among multiple

districts so that they fall short of a majority in each one. Packing means con-

centrating one party’s backers in a few districts that they win by overwhelm-

ing margins.” Gill, 585 U.S. at 55 (citation omitted). The goal of cracking and

packing is to reduce or eliminate the impact of the cracked and packed voters’

votes.

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22-14031 Opinion of the Court 29

Adams, 345 U.S. 461, 469 (1953) (opinion of Black, J.) (explaining

Black voters’ rights had been abridged because they could partici-

pate only in elections that were “no more than the perfunctory rat-

ifiers of the choice that has already been made”); White v. Regester,

412 U.S. 755, 766–67 (1973) (concluding a combination of Texas’s

primary regulations—a majority-vote prerequisite and a ballot-

place rule–-afforded Black voters in Dallas County “less oppor-

tunity . . . to participate in the political process” by reducing a mul-

timember election to a “head-to-head contest for each position”

that their preferred candidate would not win).

And that’s the case for Polelle here. Even if he can write in

his preferred candidate in the general election, he claims he has lost

the opportunity to cast a meaningful ballot because the closed pri-

mary in which he claims he cannot participate effectively deter-

mines the outcome of the general election. See Classic, 313 U.S. at

319 (refusing to ignore “that the practical influence of the choice

of candidates at the primary may be so great as to affect profoundly

the choice at the general election even though there is no effective

legal prohibition upon the rejection . . . of the choice made at the

primary”); Morse v. Republican Party of Va., 517 U.S. 186, 205 (1996)

(opinion of Stevens, J.) (explaining limitations on “the opportunity

for voters to participate in the” party’s primary “undercuts their in-

fluence on the field of candidates whose names will appear on the

ballot, and thus weakens the ‘effectiveness’ of their votes cast in the

general election itself ”); cf. also Lubin v. Panish, 415 U.S. 709, 719 n.5

(1974) (doubting that a write-in option equalizes electoral oppor-

tunity); Anderson v. Celebrezze, 460 U.S. 780, 800 n.26 (1983) (same).

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30 Opinion of the Court 22-14031

The Court has long recognized that states interfere with “the

right of qualified voters, regardless of their political persuasion, to

cast their votes effectively” by enacting a regulation that “in effect

tends to give” certain groups “a complete monopoly” over the po-

litical arena. Williams v. Rhodes, 393 U.S. 23, 30, 32 (1968). So to

point out, as Polelle does, that “the ultimate choice of the mass of

voters is predetermined when the nominations have been made,”

Newberry v. United States, 256 U.S. 232, 286 (1921) (Pitney, J., concur-

ring in part), is not to complain about an electoral loss—rather, it

is to argue the State may not have set an equal playing field to begin

with. 12 See Classic, 313 U.S. at 313, 319; Morse, 517 U.S. at 205

12 A hypothetical shows the error in the Partial Dissent’s position that Polelle

lacks an adequate injury in fact. Imagine that Congress enacted a statute bar-

ring in congressional elections the use of any primary process that is outcome-

determinative of the general election and that excludes voters based on parti-

san affiliation. See U.S. CONST. art. I, § 4, cl. 1. Then imagine that Congress

granted voters a statutory right to enforce that rule of decision. Under the

Partial Dissent’s logic, even then, voters would not have standing to sue. See

TransUnion, 594 U.S. at 426 (explaining Congress cannot create an Article III

concrete injury). We don’t see how anyone could accurately say a plaintiff

suing under that hypothetical statute claims only “an injury in law,” id. at 427,

or asserts harm only because their preferred candidate lost an election. That

plaintiff would sue to redress concrete harms—vote denial and electoral ex-

clusion—just as Polelle does. A contrary conclusion is also at odds with Os-

burn, where we considered on the merits the plaintiffs’ claims that an open

primary system reduced minority voters’ ability to participate in the political

process. 369 F.3d at 1288–89. And as for the Partial Dissent’s response that

this hypothetical “mistakes a statutory violation for a constitutional injury,”

Part. Diss. Op. at 20 n.6, the Partial Dissent misses our point. We agree there

can be no standing for a statutory violation if an alleged injury isn’t concrete,

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(opinion of Stevens, J.); Clingman, 544 U.S. at 603 (O’Connor, J., con-

curring in part and concurring in the judgment) (explaining that as

electoral “restrictions become more severe,” perhaps with “dis-

criminatory effects, there is increasing cause for concern that those

in power may be using electoral rules to erect barriers to electoral

competition”).

The Partial Dissent resists this conclusion. It suggests “glar-

ing” differences exist between the cases we cite and Polelle’s. Part.

Diss. Op. at 12. In particular, the Partial Dissent tries to distinguish

cases that involved racially discriminatory voting practices. See id.;

see also id. at 14–15 (suggesting Osburn is inapposite because it con-

cerned the Fourteenth and Fifteenth Amendments and the VRA).

But the principles there remain applicable here. For voters

to show that their “right . . . to vote” is “denied or abridged . . . on

account of race,” they must show that their “right . . . to vote” is

“denied or abridged.” U.S. CONST. amend. XV, § 1. Equally so, un-

der the Fourteenth Amendment, plaintiffs generally “prove pur-

poseful discrimination” by establishing that they “have less oppor-

tunity to participate in the political processes and to elect candi-

dates of their choice.” Rogers v. Lodge, 458 U.S. 613, 624 (1982);

particularized, and actual or imminent in the first place. But we raise the hy-

pothetical to help illustrate that a concrete injury exists. Our hypothetical stat-

ute would remove the barriers that prevent Polelle from engaging in the po-

litical process as other voters who are party members currently do. By envi-

sioning how Polelle may participate in the preliminary stages of the political

process under the hypothetical statute, it helps us understand how the current

system injures him: by excluding him the outcome-determinative election.

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32 Opinion of the Court 22-14031

accord Osburn, 369 F.3d at 1288. So the abridgment that Polelle al-

leges—exclusion from an outcome-determinative election—“de-

prive[s]” him “of voting rights.” Terry, 345 U.S. at 470 (opinion of

Black, J.).

That Florida abridges Polelle’s voting rights—by limiting his

ability to participate in an outcome-determinative election—for

reasons other than his “color,” id., does not affect his standing to

sue. Rather, it goes to the extent of the burden on Polelle’s voting

rights and the state’s justification for that burden—paradigmatic

merits considerations.13 See Burdick, 504 U.S. at 434 (explaining

13 The Partial Dissent charges that we reach our conclusion through “sleight

of hand” and that, by compiling quotations, we create a freestanding right to

vote. See Part. Diss. Op. at 13. That’s incorrect. We quote the Fifteenth

Amendment and Rogers to show the distinction between two, different con-

siderations in a voting-rights claim: the burden on a person’s voting rights

(how a person’s right to vote is abridged or denied) and the basis on which

that burden is applied unequally (on what account the abridgment or denial

occurs). See Anderson, 460 U.S. at 788 & n.9 (permitting “reasonable, nondis-

criminatory restrictions,” such as those “that serve legitimate state goals which

are unrelated to First Amendment values”); Burdick, 504 U.S. at 434 (distin-

guishing between severe restrictions and reasonable, nondiscriminatory ones).

Our point is that we can separate holdings about vote abridgment and apply

them to cases where the alleged abridgment is on account of something other

than race—here, political affiliation. As far as we can tell, there is no precedent

suggesting plaintiffs lack standing when they press valid theories of vote

abridgment simply because the alleged deprivation is because of political affil-

iation. To the contrary, the Supreme Court has held that voters have standing

to press such claims, like those of partisan vote dilution. See Rucho v. Common

Cause, 588 U.S. 684, 693, 703 (2019) (explaining the Court “addressed” standing

“in Gill”). True, in Rucho, the Court concluded that partisan gerrymandering

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22-14031 Opinion of the Court 33

courts must weigh the character and magnitude of the asserted

First and Fourteenth Amendment interests against the states’ justi-

fication for the burden imposed by the election regulation).

As for standing, we’ve been clear that “a small injury, ‘an

identifiable trifle,’ is sufficient.” Billups, 554 F.3d at 1351 (citation

omitted). And a party-registration requirement certainly presents

the constitutional trifle sufficient to confer standing.14 See Nader,

claims are non-justiciable. But it did so only because no clear and manageable

standards guide the judiciary’s inquiry in resolving them. See id. at 703, 709–

710, 721. Here, though, “discernible and manageable standards,” id. at 708,

exist for assessing the exclusionary impact of an election regime, see, e.g.,

Nader, 417 F. Supp. at 843–45; Clingman, 544 U.S. at 589–92. In fact, Justice

O’Connor, who consistently thought partisan-gerrymandering claims non-jus-

ticiable, see Rucho, 588 U.S. at 703 (quoting Davis v. Bandemer, 478 U.S. 109,

144 (1986) (O’Connor, J., concurring in the judgment)); Vieth v. Jubelirer, 541

U.S. 267, 270, 305–06 (2004) (plurality opinion), considered the “[p]rimary vot-

ing” interests that Polelle asserts “vitally important,” “entitled to some level of

constitutional protection,” and justiciable, Clingman, 544 U.S. at 602 (O’Con-

nor, J., concurring in part and concurring in the judgment).

14 The Partial Dissent’s rationalizations for ignoring Nader are unpersuasive.

Nader is not of “flimsy precedential value.” Part. Diss. Op. at 18. As we explain

later, see infra Part III.B, Nader is canonical and a case the Supreme Court fre-

quently cites in this area of the law. See, e.g., Tashjian, 479 U.S. at 215 n.6; Jones,

530 U.S. at 583. Indeed, the Supreme Court has referred to Nader’s holdings

as its own. Clingman, 544 U.S. at 593–94. Plus, the Partial Dissent’s suggestion

that Nader would have concluded the plaintiffs lacked standing had the case

been decided today, Part. Diss. Op. at 19, is entirely speculative. Seminal

standing cases—which echoed the same separation-of-powers concerns Nader

did, the Partial Dissent now does, and we also share—preceded the panel’s

decision and the Court’s summary affirmance in Nader. See, e.g., Schlesinger v.

Reservists Comm. to Stop the War, 418 U.S. 208, 220–21 (1974); Warth, 422 U.S.

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34 Opinion of the Court 22-14031

417 F. Supp. at 843–44, 847, 848–49 (discussing the minimal burden

on plaintiffs’ asserted constitutional interest and the state’s valid

reason for imposing them); Tashjian, 479 U.S. at 216 n.7 (recogniz-

ing that a “requirement of public affiliation with [a] Party in order

to vote in [a] primary” may pose a burden on voters and parties);

Clingman, 544 U.S. at 589–92 (discussing the semi-closed primary’s

burden on voters and comparing it to Tashjian’s articulation of how

“Connecticut’s closed primary limited citizens’ freedom of politi-

cal association”).

But even putting aside Polelle’s effective-opportunity theory,

the Partial Dissent offers no response to the other injuries Polelle

asserts. It ignores that the First Amendment places some re-

strictions on excluding voters from primary elections based on

their political beliefs. See Duke, 87 F.3d at 1232 & n.6. And the Par-

tial Dissent doesn’t acknowledge that, under the Equal Protection

Clause, Florida’s closed primary injures Polelle solely by imposing

a “barrier,” Billups, 554 F.3d at 1351, to voting in partisan-election

primaries that is more burdensome to Polelle, a political non-

at 498–99. And Nader’s discussion of the plaintiffs’ alleged constitutional inter-

ests, see 417 F. Supp. at 843–44, 847, 848–49, answers the key question at this

stage in our standing inquiry: that legally cognizable interests are at stake, even

if they are burdened only minimally. Cf. Ziskis v. Symington, 47 F.3d 1004, 1006

(9th Cir. 1995) (rejecting a challenge to Arizona’s closed primary and relying

on Nader’s characterizing of the relevant constitutional burdens and state in-

terests); Balsam v. Sec’y of N.J., 607 F. App’x 177, 182 (3d Cir. 2015) (explaining

Nader “struck a balance of competing First Amendment associational rights

and Fourteenth Amendment rights”). To this final point, the Partial Dissent

offers no response.

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22-14031 Opinion of the Court 35

affiliate who does not want to register with a party and has not

done so, than it is to other voters who want to register with a party

and already have, see id. (holding a voter-identification law injured

voters who did not already have valid identification by requiring

them to obtain one or to present one at the ballot box). Indeed, at

a minimum, Polelle alleges Defendants will deny him a ballot in

state-operated primary elections—the “textbook,” Hero, 42 F.4th at

772, limitation on his “ability to vote,” Jacobson, 974 F.3d at 1246;

Stachura, 477 U.S. at 312 n.14; Morse, 517 U.S. at 207 (Stevens, J.),

that courts have long recognized at common law as a potential tort,

see Voting Wrongs, supra, at 1182; Nixon, 273 U.S. at 540.

The Partial Dissent only touches on this final point, and it

conclusorily remarks that “the right to vote means the right to par-

ticipate on equal footing in the general election,” not “the primary

process of a political party he refuses to join.” Part. Diss. Op. at 11;

see also id. at 17 (arguing Jacobson concerned a general election, not

a primary election). We’ll set aside for the moment the incorrect

statement that the right to vote concerns only the right to partici-

pate in a general election. See Nixon, 273 U.S. at 540; Gray v. Sanders,

372 U.S. 368, 375 (1963). And we’ll also ignore for the moment that

voters’ inability to participate in a primary almost by definition hin-

ders their ability to participate equally in a general election. See

Morse, 517 U.S. at 205 (opinion of Stevens, J.); Gray, 372 U.S. at 380.

But even then, for the reasons we’ve already explained, we remain

unconvinced that a voter’s political non-affiliation is enough of a

reason to conclude they lack standing to challenge an allegedly ex-

clusionary electoral scheme. Principally, Nader, Osburn, and

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36 Opinion of the Court 22-14031

Clingman addressed on the merits similar, if not identical claims, to

those Polelle brings. And the Partial Dissent does not sufficiently

explain why we should part ways with Supreme Court precedent

or our past decisions.

The closest the Partial Dissent gets to offering such an expla-

nation is its assertion that primary and general elections serve dif-

ferent purposes: the Partial Dissent claims general elections select

officeholders, while primary elections choose parties’ nominees.

Part. Diss. Op. at 17. But that misstates, or at least incompletely

states, the purpose of a primary. Primaries serve to “winnow the

number of candidates to a final list . . . for the general election.”

Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 454

(2008) (citation omitted). And primaries don’t need to be partisan

to do so. See id. To be sure, states may wish to hold public party

primaries to ensure that parties select their nominees in a demo-

cratic manner and to enable party members “to set their faces

against ‘party bosses.’” Lopez Torres, 552 U.S. at 205. That is an-

other interest a state may have in using partisan, rather than non-

partisan, primaries. See Nader, 417 F. Supp. at 843 (discussing the

smoke-filled rooms that plagued party politics).

But such an interest doesn’t negate a voter’s injury when

they are excluded from participating in the primary process. Nor

does it eliminate the practical impact that primaries have on the

general election. Voters have an interest in participating in the po-

litical process to help determine who may appear on the general

election ballot. See Gray, 372 U.S. at 380 (explaining constitutional

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22-14031 Opinion of the Court 37

guarantees extend to “any preliminary election that in fact deter-

mines the true weight a vote will have”). Still, “[t]he fact that a

State’s regulatory authority may ultimately trump voters’ . . . in-

terests in a particular context is no reason to dismiss the validity of

those interests” in the first place. Clingman, 544 U.S. at 602 (O’Con-

nor, J., concurring in part and concurring in the judgment).

Yet the Partial Dissent again misses this distinction between

standing and the merits. It interprets our conclusion that Polelle

has asserted an injury in fact as an alleged holding that “any re-

striction affecting a voter’s interest in his ability to vote is constitu-

tionally suspect.” Part. Diss. Op. at 17 (cleaned up). Most respect-

fully, that’s just wrong. We’ve stressed repeatedly that “standing in

no way depends on the merits of the plaintiff’s” claims. Warth, 422

U.S. at 500. And our ultimate merits determination—which

soundly rejects Polelle’s claims—belies the Partial Dissent’s insist-

ence that we’re crafting a broad rule that makes “constitutionally

suspect” routine election regulations. The Partial Dissent’s instinct

that Florida “must play an active role in structuring elections” is a

correct one. Burdick, 504 U.S. at 433. But it’s not an instinct that

standing doctrine vindicates. See id. at 433–34 (explaining the

states’ constitutional role in structuring elections leads to a “more

flexible standard” to apply to the merits).

In the end, Polelle has alleged the imminent deprivation of

particular, concrete, and arguably protected interests. At this stage,

that’s all he must do. It’s not “necessary to decide whether

[Polelle’s] allegations of impairment of [his] vote[] . . . will,

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38 Opinion of the Court 22-14031

ultimately, entitle [him] to any relief, in order to hold that [he] ha[s]

standing to seek it.” Baker, 369 U.S. at 208. “If such impairment

does produce a legally cognizable injury,” we know that Polelle will

“sustain[] it.” Id.

Because we conclude Polelle has sufficiently alleged an in-

jury in fact, we next assess Secretary Byrd’s argument that Polelle’s

injury is not traceable to him.

2. Polelle’s exclusion from Florida primary elections is

traceable to Supervisor Turner and redressable by an in-

junction against him.

To satisfy standing’s causation requirement, a plaintiff’s in-

jury must be “fairly traceable to the challenged action of the de-

fendant, and not the result of the independent action of some third

party not before the court.” Lujan, 504 U.S. at 560 (cleaned up). As

for standing’s redressability requirement, to satisfy that, a plaintiff

must show that “the effect of the court’s judgment on the defend-

ant” will likely redress “the plaintiff’s injury, whether directly or in-

directly.” Lewis v. Governor of Ala., 944 F.3d 1287, 1301 (11th Cir.

2019) (en banc) (cleaned up). These “two requirements—traceabil-

ity and redressability—often travel together.” Support Working An-

imals, Inc. v. Governor of Fla., 8 F.4th 1198, 1201 (11th Cir. 2021) (cit-

ing 13A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL

PRACTICE AND PROCEDURE § 3531.5 (3d ed. 2021)). And “where, as

here, a plaintiff has sued to enjoin a government official from en-

forcing a law, he must show, at the very least, that the official has

the authority to enforce the particular provision that he has

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22-14031 Opinion of the Court 39

challenged, such that an injunction prohibiting enforcement would

be effectual.” Id.

Polelle alleges that he has been improperly excluded from

the only stage of the election process for certain offices where his

vote is of significance: Florida’s partisan primary elections. So to

have standing to sue, Polelle must show that his exclusion is fairly

traceable to statutes that either the Secretary or the Supervisor en-

forces and that a judgment against either Defendant will likely re-

dress Polelle’s exclusion. Polelle does so as to Supervisor Turner.

But as to Secretary Byrd, Polelle fails to carry his burden of identi-

fying cognizable traceability and redressability theories. Still, be-

cause Polelle has standing to sue “at least one defendant,” we pro-

ceed to the merits of his claims later in this opinion. Bostic v.

Schaefer, 760 F.3d 352, 372 (4th Cir. 2014).

i. Polelle’s injuries are traceable to Supervisor Turner and

redressable by an injunction against him.

Supervisor Turner does not dispute that Polelle’s exclusion

is traceable to him. Nor does he contest that an injunction or de-

claratory judgment against him would afford Polelle relief.

That is unsurprising. Supervisors and the Election Board of

poll workers they appoint conduct Florida’s elections. Fla. Stat. §

102.012. The Board possesses “full authority to maintain order at

the polls and enforce obedience to its lawful commands during an

election and the canvass of the votes.” Id. § 102.031(1). That in-

cludes verifying the identify of putative voters, id. §§ 98.461(2),

101.043, 102.012(1)(a), allowing voters to “enter the booth or

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40 Opinion of the Court 22-14031

compartment to cast his or her vote,” id. § 101.51(1), and accepting

voters’ requests for and sending out vote-by-mail ballots, id. §§

101.62(1), 101.62(3). So if we granted relief that enabled Polelle to

participate in partisan primary elections, the district court could

enter an injunction requiring the Supervisor to issue and accept

Polelle’s partisan ballot.

Still, as Polelle recognizes, we may not be able to order the

Supervisor to include Polelle in a partisan primary election if doing

so would severely burden political parties’ associational rights. Cf.

Osburn, 369 F.3d at 1287. Again, at this stage, we don’t consider

whether such an order would impermissibly infringe political par-

ties’ First Amendment rights. Jones expressly reserved that question

when it declined to rule on open primaries’ constitutionality. 530

U.S. at 577 n.8. And we don’t need to resolve that issue here be-

cause even if we were to conclude that such relief would violate

political parties’ associational rights, Polelle would still have stand-

ing to sue. 15

15 The Partial Dissent has a big hole in it. As we’ve explained, Polelle’s claims

are redressable in two ways: (1) we could order Supervisor Turner to issue

Polelle a ballot, or (2) we could order Supervisor Turner to conduct an alter-

native primary scheme. The Partial Dissent disputes this second form of re-

dressability (we explain above why we, respectfully, think it’s wrong), but the

Partial Dissent doesn’t say we can’t engage in the first form. To do that, the

Partial Dissent would have to conclude that the first form of relief would vio-

late a political party’s First Amendment rights to issue such a ballot. But the

Partial Dissent doesn’t do that. For good reason. As we explained in the last

Section, it doesn’t necessarily follow from Supreme Court precedent that open

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22-14031 Opinion of the Court 41

As we’ve explained, Polelle would vote in a party primary if

he had the opportunity. But he requested more expansive relief to

litigate in the alternative: If Florida’s system of closed primary elec-

tions unconstitutionally excludes Polelle from the only stage in the

election process where his vote matters, and if political parties are

also entitled to exclude Polelle from their own primaries such that

we cannot order Supervisor Turner to issue Polelle a partisan bal-

lot—questions we do not decide in the standing inquiry—then

Florida could conduct neither closed nor open partisan primaries.

But in that hypothetical case, the State could still switch to some

alternative election regime that could accommodate both constitu-

tional interests, like non-partisan primaries. Cf. Jones, 530 U.S. at

585–86.

Polelle raised this alternative in the district court and on ap-

peal both in his briefing and at oral argument. He argued that we

could enjoin the use of closed-primary elections, forcing the

primaries are facially unconstitutional. See, e.g., Jones, 530 U.S. at 577 n.8;

Wash. State Grange, 552 U.S. at 446, 449–50, 452; Nago, 833 F.3d at 1124–25.

We ultimately avoid that constitutional question because established law al-

lows us to conclude Polelle’s injury is redressable by ordering Supervisor

Turner to conduct an alternative primary scheme. But the Partial Dissent

doesn’t have that same luxury because it (incorrectly) rejects that conclusion.

So it must address the extent of the burden issuing Polelle a partisan ballot

would place on a political party’s First Amendment rights before determining

that Polelle’s injury is not redressable in that way. But the Partial Dissent

doesn’t do this. It only suggests Jones points in that direction (which, as we’ve

already stated, isn’t exactly correct). In turn, we don’t see how it can, well,

dissent and say that redressing Polelle’s injury falls beyond the powers of the

judiciary.

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42 Opinion of the Court 22-14031

“Florida legislature . . . to adopt other primary solutions . . . that

avoid the constitutional issues raised by Plaintiff in his Complaint

and yet respect the constitutional rights of political parties.”

So his suit is one that effectively “challenge[s] an unconstitu-

tional” election regime and “seek[s] an injunction forbidding the

state from conducting an election under the challenged scheme.”

SAMUEL ISSACHAROFF, PAMELA S. KARLAN & RICHARD H. PILDES ET

AL., THE LAW OF DEMOCRACY: LEGAL STRUCTURE OF THE POLITICAL

PROCESS 982 (6th ed. 2022). Put simply, Polelle requests in the al-

ternative that we “command[]” Supervisor Turner “to do nothing

more than refrain from violating federal law” by not conducting

partisan primaries as Florida law otherwise instructs him to do. Ja-

cobson, 974 F.3d at 1257 (quoting Va. Off. for Prot. & Advoc. v. Stewart,

563 U.S. 247, 255 (2011)).

A judgment of the nature Polelle seeks would redress his in-

juries, or, at a minimum, it would “significantly increase the likeli-

hood” that he would obtain such redress. Lewis, 944 F.3d at 1301.

That’s so because such a judgment would prevent Supervisor

Turner from proceeding with the elections of public officials in the

absence of a system of elections that affords Polelle a meaningful

vote unconditioned on his affiliation with a political party. Elec-

tions in Sarasota County would continue, of course. They just

wouldn’t continue under the allegedly constitutionally defective

scheme.

Supervisor Turner could implement other election re-

gimes—such as non-partisan primaries—that would allow Polelle

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22-14031 Opinion of the Court 43

to participate in Sarasota County’s politics on equal footing with

those affiliated with political parties. See Jones, 530 U.S. at 585–86,

585–86; Wash. State Grange, 552 U.S. at 444 (upholding Washing-

ton’s non-partisan primary). Eliminating the party-affiliation re-

quirement would redress Polelle’s asserted First Amendment and

equal-protection injuries. And by ordering Supervisor Turner to

not conduct elections that exclude unaffiliated voters from the dis-

positive stages, Polelle would be able to cast a meaningful ballot in

the decisive vote. Cf. Wash. State Grange, 552 U.S. at 446, 454. Plus,

if Supervisor Turner does not “implement a primary election that

complies with the constitutional mandate” of this Court, O’Calla-

ghan v. Alaska Dir. of Elections, 6 P.3d 728, 730 (Alaska 2000), the dis-

trict court may order Supervisor Turner directly to bring his elec-

tions into compliance with federal law.

That theory of traceability and redressability underwrites

the type of election-related relief that we and the Supreme Court

routinely grant.

Polelle’s request for an injunction that bars Florida’s use of

a certain primary-election structure is no different than what the

political parties sought, and the Court granted, in Jones. Cal. Dem-

ocratic Party v. Jones, 984 F. Supp. 1288, 1292 (E.D. Cal. 1997) (ex-

plaining the political parties requested “an injunction against [the

blanket primary’s] implementation”), aff’d, 169 F.3d 646 (9th Cir.

1999), rev’d, 530 U.S. 567 (2000); see also O’Callaghan, 6 P.3d at 730

(upholding Alaska’s “emergency regulations to implement a pri-

mary election that complies with the constitutional mandate of

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44 Opinion of the Court 22-14031

Jones”). Just as the courts afforded relief to the plaintiffs in Jones by

preventing California officials from using a primary system that vi-

olated the parties’ associational rights, Polelle asks that we prevent

Supervisor Turner from using a primary system that undermines

his right to an effective vote by conditioning it on an act of affilia-

tion with a party.

And more recently, in Allen v. Milligan, the Supreme Court

affirmed the three-judge court’s preliminary injunction that pre-

vented Alabama from conducting any congressional elections us-

ing Alabama’s proposed congressional map and that afforded the

Alabama legislature two weeks to enact a remedial plan. 599 U.S.

1, 9 (2023) (affirming the district court’s order); Caster v. Merrill,

2022 WL 264819, at *3 (N.D. Ala. Jan. 24, 2022) (describing the or-

der).

Milligan represents a “faithful[] appli[cation]” of “existing

law.” 599 U.S. at 23. Although “intervention by the federal courts

in state elections has always been a serious business,” Oden v. Brit-

tain, 396 U.S. 1210 (Black, J., opinion in chambers), “[i]t cannot be

gainsaid that federal courts have the power to enjoin state elec-

tions,” Chisom v. Roemer, 853 F.2d 1186, 1189 (5th Cir. 1988). Federal

courts may enforce federal law and the Constitution by enjoining

upcoming elections, ordering specific election practices, or, in par-

ticularly extreme cases, setting aside ballots or election results. See,

e.g., Bell v. Southwell, 376 F.2d 659, 665 (5th Cir. 1967) (“[W]e are

unfettered by the negative or affirmative character of the words

used or the negative or affirmative form in which the coercive order

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22-14031 Opinion of the Court 45

is cast.”); Hamer v. Campbell, 358 F.2d 215, 224 (5th Cir.), cert. denied,

385 U.S. 851 (1966); Toney v. White, 488 F.2d 310, 315 (5th Cir. 1973)

(en banc); Watson v. Comm’rs Ct. of Harrison Cnty., 616 F.2d 105, 107

(5th Cir. 1980); Roe v. Alabama, 68 F.3d 404, 407, 409 (11th Cir.

1995). 16

But because “relief [of that nature] [is] to be guardedly exer-

cised,” Southwell, 376 F.2d at 662, our practice is to enter such ex-

traordinary relief “only when a legislature fails” to comply with the

“requisites” of federal law “in a timely fashion after having had an

adequate opportunity to do so,” White v. Weiser, 412 U.S. 783, 794–

95 (1973) (quoting Reynolds, 377 U.S. at 586); accord North Carolina v.

Covington, 585 U.S. 969, 978–79 (2018) (per curiam) (affirming part

of the district court’s order requiring the use of “court-drawn”

state electoral districts). After all, if the district court could order

state officers to implement a specific primary-election regime in ac-

cordance with the federal law and the Constitution, see, e.g., Hamer,

358 F.2d at 224; Southwell, 376 F.2d at 665; Covington, 585 U.S. at 978,

it could surely, in the spirit of federalism, provide Supervisor

Turner the chance to craft a remedial plan, or offer the State the

opportunity to revise offending statutes, in the first instance. See

ISSACHAROFF, KARLAN & PILDES ET AL., supra, at 1003–04.

The Partial Dissent disagrees. It first discounts the relief we

discuss because it believes Polelle didn’t request it. The Partial

16 All decisions the Fifth Circuit issued by the close of business on September

30, 1981, are binding precedent in this Court. Bonner v. City of Prichard, 661

F.2d 1206, 1207 (11th Cir. 1981) (en banc).

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46 Opinion of the Court 22-14031

Dissent characterizes Polelle’s arguments suggesting Florida could

adopt alternative election regimes as a mid-litigation switch, and it

treats that purported switch as an implicit concession from Polelle

that he sought in his complaint relief the court cannot grant. Part.

Diss. Op. at 22–23, 22 n.8.

But we fail to see how a position Polelle has pressed since his

response to Defendants’ motions to dismiss—the first time in the

litigation that he could make a legal argument—is a mid-litigation

switch. Nor do we understand Polelle’s district-court arguments to

depart from the requests he made in his complaint: he sought for

us to enjoin Defendants from enforcing any Florida law “which

prohibits [him] from voting in future Florida election primaries

based solely on his choice to remain” independent, as well as to en-

ter “[a]ny other relief ” we “deem[] just and proper.”

The potential remedies we discuss flow from Polelle’s claim

that Florida’s closed system of primary elections is unconstitu-

tional. It doesn’t matter that Polelle didn’t plead with particularity

a request that Florida enact a certain primary regime, like non-par-

tisan primaries. For one thing, because a final judgment “should

grant the relief to which each party is entitled, even if the party has

not demanded that relief in its pleadings,” FED. R. CIV. P. 54(c), we

see no issue considering such an injunction in our redressability

analysis.17 For another, the Partial Dissent would fault Polelle, a pro

17 The Partial Dissent takes issue with how we characterize the injunctions

Polelle requests and that we conclude we could enter. It asks, “[h]ow is an

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22-14031 Opinion of the Court 47

se litigant, for requesting relief that implicitly recognizes the feder-

alism principles to which we routinely adhere—namely, affording

states the opportunity to correct parts of their electoral scheme

that violate federal law before directly ordering state officials to im-

plement corrections. 18 See Weiser, 412 U.S. at 794–95; Covington, 585

injunction barring Supervisor Turner from conducting partisan primaries the

same as an injunction ordering him to create and run a new primary system?”

Part. Diss. Op. at 26 n.12. Although the Partial Dissent highlights a literal dis-

tinction between two possible injunctions, there is no functional difference

that is relevant to redressability in the election-law context. Our precedent is

clear that we should be “unfettered by the negative or affirmative character of

the words used or the negative or affirmative form in which the coercive order

is cast.” Southwell, 376 F.2d at 665. “If affirmative relief is essential, the Court

has the power and should employ it.” Id. Plus, in attempting to paint Polelle

as disclaiming the entry of any affirmative injunction, the Partial Dissent mis-

reads Polelle’s arguments below. See Part. Diss. Op. at 26. It conflates blanket

primaries (which the Court held unconstitutional in Jones and which Polelle

does not suggest Florida adopt) with any other form of primary elections, like

non-partisan ones (which avoid any alleged constitutional injuries to Polelle

and to political parties and which Polelle has suggested are a legally viable al-

ternative to closed primaries). The Partial Dissent can’t fairly read into one

sentence in Polelle’s response to Defendants’ motion to dismiss a disclaimer

of the just and proper relief he plainly sought in his complaint.

18 The Partial Dissent seizes on Polelle’s suggestion that Florida’s legislature

may alter its primary election scheme if we conclude its closed primary is un-

constitutional. Part. Diss. Op. at 24–25. But it jumps the gun in claiming

Polelle’s theory of redressability relies solely on the independent action of

Florida’s legislature. For the reasons we explain above, Polelle does not need

to rely on the Florida legislature to redress his claims. So his anticipation that

the Florida legislature will respond to a judicial ruling is not determinative of

redressability. Polelle merely recognizes how election remedies normally

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48 Opinion of the Court 22-14031

U.S. at 978–79. We make no “judicial overreach,” Part. Diss. Op. at

28, in concluding we may order the appropriate state officials to

conduct elections in compliance with federal law should a plaintiff

prove such a violation.

Yet the Partial Dissent rejects that proposition, too. As the

Partial Dissent sees it, requiring Supervisor Turner to implement

an alternative primary-election regime, like non-partisan elections,

that complies with the Constitution, would amount to “invent[ing]

an election regime from scratch.” Id. at 27. We respectfully disa-

gree. For starters, we would enter such an injunction only if Su-

pervisor Turner failed to comply with an initial order that he cease

using the closed-primary election regime that allegedly violates

Polelle’s rights. See Weiser, 412 U.S. at 794–95; Covington, 585 U.S. at

978–79.

More to the point, though, “the aim of equity is to adapt

judicial power to the needs of the situation.” Alabama v. United

States, 304 F.2d 583, 591 (5th Cir.), aff’d mem., 371 U.S. 37 (1962). So

“federal courts may use any available remedy to make good the

wrong done,” Hood, 327 U.S. at 684, including the entry of “such

orders and decrees as are necessary and proper” to afford plaintiffs

“full protection from” unconstitutional “election practices,” Terry,

345 U.S. at 470 (opinion of Black, J.) (discussing the “Jaybird-Dem-

ocratic-general election practices”).

proceed: courts grant legislatures and state officials the first opportunity to

“remove the invalidity or unenforceability” in state law. Fla. Stat. § 97.029(3).

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Still, we share the Partial Dissent’s concern that “‘[t]he func-

tional structure embodied in the Constitution, the nature of the

federal court system[,] and the limitations inherent in the concepts

both of limited federal jurisdiction and of the remedy afforded by

§ 1983’ operate to restrict federal relief in the state election con-

text.” Curry v. Baker, 802 F.2d 1302, 1314 (11th Cir. 1986) (quoting

Gamza v. Aguirre, 619 F.2d 449, 453 (5th Cir. 1980)). Numerous doc-

trines exist to advance the federalism principles underlying our sys-

tem of multiple sovereigns and the role the Constitution intends

states to play in organizing elections. See, e.g., id. at 1314–15 (ex-

plaining “episodic,” “garden variety” election disputes, like those

over “the validity of individual ballots,” normally do not give rise

to constitutional claims); Weiser, 412 U.S. at 794–95 (allowing States

to first craft remedial plans); Republican Nat’l Comm. v. Democratic

Nat’l Comm., 589 U.S. 423, 424 (2020) (per curiam) (explaining “fed-

eral courts should ordinarily not alter the election rules on the eve

of an election” (citing Purcell v. Gonzalez, 549 U.S. 1 (2006) (per cu-

riam))).

But this is a case where a plaintiff alleges that state laws’

“very design infringes on the rights of voters.” Curry, 802 F.2d at

1314. So “federal courts closely scrutinize” the challenged regula-

tions. Id. And “state policy must give way when it operates to hin-

der vindication of federal constitutional guarantees.” See Missouri

v. Jenkins, 495 U.S. 33, 57 (1990) (quoting N.C. Bd. of Educ. v. Swann,

402 U.S. 43, 45 (1971)). Against these principles, we do not share

the Partial Dissent’s view that the federal courts cannot redress

Polelle’s injury. If federal courts can halt state elections, Reynolds,

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50 Opinion of the Court 22-14031

377 U.S. at 585, redraw state and congressional electoral maps, id.

at 586, require that states use single-member legislative districts,

White, 412 U.S. at 765, alter candidate filing deadlines, Anderson, 460

U.S. at 806, void election results and call a special election under

their supervision, Southwell, 376 F.2d at 665, or, more broadly, “dis-

establish local government institutions that interfere with [the

Fourteenth Amendment’s] commands,” Jenkins, 495 U.S. at 55 (cit-

ing City of New York v. Morris, 489 U.S. 688, 690 (1989)), we think it

is within the judicial power to enjoin the use of a primary-election

practice and its “conforming amendments to [a] [s]tate[’s] [e]lec-

tion [c]ode,” Jones, 984 F. Supp. at 1290.

Importantly, Supervisor Turner is the principal election of-

ficer in Sarasota County, and he does not dispute that he would be

the proper official to implement the relief Polelle has requested for

county-wide elections.19 Cf. Osburn, 369 F.3d at 1288–89 (raising no

19 The Partial Dissent offers a final point that Florida law does not empower

Supervisor Turner to reshape the state’s primary system. Part. Diss. Op. at 27.

But that does not impact redressability. “[S]tate-imposed limitations” on state

officials’ authority “must give way when [they] operate[] to hinder vindication

of federal constitutional guarantees.” Swann, 402 U.S. at 45. So when “a par-

ticular remedy is required, the State cannot hinder the process by preventing

a local government from implementing that remedy.” Jenkins, 495 U.S. at 57–

58. In fact, Florida law already acknowledges this principle. It recognizes that

courts may enter “an order or judgment that nullifies or suspends, or orders

or justifies official action that is in conflict with, a provision of the Florida Elec-

tion Code.” Fla. Stat. § 97.029(3) (noting “the Legislature” may “amend[] the

general law to remove the invalidity or unenforceability”). And there is no

dispute that Supervisor Turner is the proper official to take action that rectifies

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22-14031 Opinion of the Court 51

redressability issue related to voters’ request to enjoin Georgia’s

open primary); Socialist Workers Party v. Leahy, 145 F.3d 1240, 1248

(11th Cir. 1998) (holding the plaintiffs lacked standing to sue the

Supervisors in part because the Supervisors disclaimed the author-

ity or desire to enforce the challenged provision).

For these reasons, we conclude a judgment against Supervi-

sor Turner is likely to redress Polelle’s core complaint—that he is

excluded from the dispositive elections in Sarasota County—as

well as his other asserted First Amendment and equal-protection

violations.

If we conclude that Polelle is entitled to only a narrow in-

junction that requires Supervisor Turner to issue a partisan ballot

to and accept one from Polelle, Polelle would be able to cast an

effective vote on the same playing field as other voters. And should

we conclude Polelle is entitled to an injunction to prevent the use

of a closed primary, Supervisor Turner can then implement a pri-

mary system that includes Polelle in the important stages of the

election cycle without imposing on his political beliefs.

the alleged unconstitutionality of Florida closed primary-election laws; he al-

ready operates county-wide primary elections. See, e.g., Fla. Stat. § 105.031(1)

(explaining “nonpartisan candidates for countywide or less than countywide

office shall qualify with the supervisor of election”); id. § 102.012 (directing the

Supervisor to “conduct elections”); id. § 102.071 (requiring the election board

to tabulate and post voting results); id. § 100.051 (charging Supervisors to print

on general-election ballots the names of those who won the relevant prima-

ries).

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52 Opinion of the Court 22-14031

ii. Polelle has failed to show that his injuries are traceable

to Secretary Byrd.

Although Polelle has standing to sue Supervisor Turner, he

has failed to show that he has standing to sue Secretary Byrd.

Polelle proffers three traceability and redressability theories, but we

can sustain none in this posture.

Polelle first argues that his injuries are traceable to Secretary

Byrd because the Secretary is the chief elections officer who pro-

vides direction to Supervisors of Elections and may maintain suits

against Supervisors to enforce their compliance with Florida law.

But we squarely rejected that theory in Jacobson. We said, “Super-

visors are independent officials under Florida law who are not sub-

ject to the Secretary’s control.” Jacobson, 974 F.3d at 1253. And

“[t]hat the Secretary must resort to judicial process if the Supervi-

sors fail to perform their duties underscores her lack of authority

over them.” Id. “Because the Supervisors are independent officials

not subject to the Secretary’s control, their actions to implement”

Florida’s partisan primaries “may not be imputed to the Secretary

for purposes of establishing traceability.” Id. at 1253–54.

Polelle’s next two arguments may show hints of merit, but

he does not develop them enough. His second argument attempts

to distinguish Jacobson. Polelle asserts that, unlike the situation in

Jacobson, he sued both the Florida Secretary of State and his Super-

visor of Elections. Polelle is right that we explained the plaintiffs’

core error in Jacobson was their failure to sue the Supervisors. 974

F.3d at 1258. But Polelle goes no further than that distinguishing

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22-14031 Opinion of the Court 53

fact. He does not explain why the Secretary is the “cause of any

alleged injuries,” how “relief against” the Secretary can “redress

those injuries,” id., or why the Secretary is a party against whom a

judgment is necessary to provide him complete relief, see FED. R.

CIV. P. 19(a)(1)(A). Without more and against our precedent in Ja-

cobson, Polelle hasn’t carried his burden of persuasion, let alone his

burden of “alleging facts that ‘plausibly’ demonstrate” the tracea-

bility and redressability “elements.” Tsao v. Captiva MVP Rest. Part-

ners, LLC, 986 F.3d 1332, 1337 (11th Cir. 2021) (quoting Trichell v.

Midland Credit Mgmt., 964 F.3d 990, 996 (11th Cir. 2020)).

As for Polelle’s last argument, it suffers from a similar flaw.

Polelle observes that Florida recently established an Office of Elec-

tion Crimes and Security under the Secretary’s purview. He also

asserts that Florida law charges the Secretary with the responsibil-

ity to “[c]onduct preliminary investigations into any irregularities

or fraud involving . . . voting” and to “report his or her findings to

the statewide prosecutor or the state attorney for the judicial circuit

. . . for prosecution.” Fla. Stat. § 97.012(15). Given these circum-

stances and because Florida law makes it “unlawful” to vote in the

primary election of a party to which that voter does not belong, id.

§ 101.021, Polelle effectively contends that the Secretary will report

Polelle for prosecution if Polelle votes in a closed primary election.

Again, this argument also shows glimmers of potential. See

Dream Defs. v. Governor of Fla., 57 F.4th 879, 887 (11th Cir. 2023) (ex-

plaining plaintiffs suffer an injury when there is credible threat of

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54 Opinion of the Court 22-14031

prosecution under a statute that arguably affects a constitutional

interest). But Polelle makes it far too late.

He did not raise this argument in the district court, makes

just a passing reference to it in his opening brief, and only begins to

develop it in his reply brief. As Secretary Byrd points out, that

short, initial mention of the Secretary’s investigatory authority was

not enough for him to frame a proper response to Polelle’s argu-

ment. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681

(11th Cir. 2014) (“We have long held that an appellant abandons a

claim when he either makes only passing references to it or raises

it in a perfunctory manner without supporting arguments and au-

thority.”). And in any event, “legal theories and arguments not

raised squarely before the district court cannot be broached for the

first time on appeal,” even on the issue of standing. Kawa Ortho-

dontics, LLP v. Sec’y, U.S. Dep’t of the Treas., 773 F.3d 243, 246 (11th

Cir. 2014) (quoting Bryant v. Jones, 575 F.3d 1281, 1308 (11th Cir.

2009)). As a result, we can’t consider it.

In short, Polelle has failed to meet his burden to show that

he has standing to sue Secretary Byrd. We address Secretary Byrd’s

arguments that Polelle lacks standing to sue him, even though

Polelle has standing to sue Supervisor Turner, because whether

Polelle has standing to sue Secretary Byrd affects the disposition of

Polelle’s suit.

“Typically, where standing is lacking, a court must dismiss

the plaintiff’s claim without prejudice.” McGee v. Solic. Gen. of Rich-

mond Cnty., 727 F.3d 1322, 1326 (11th Cir. 2013). In contrast,

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22-14031 Opinion of the Court 55

dismissing a case on the merits may warrant a dismissal of claims

with prejudice. See Wilding v. DNC Servs. Corp., 941 F.3d 1116, 1133

(11th Cir. 2019). So on remand, the district court should dismiss

Polelle’s claims against Secretary Byrd without prejudice. See id.

(remanding with instructions to dismiss with prejudice the claims

adjudicated on the merits but dismiss without prejudice claims that

failed for lack of standing).

* * *

To recap our discussion so far, Polelle has standing to sue

Supervisor Turner but not Secretary Byrd. Polelle has alleged par-

ticular, imminent, and concrete injuries. Supervisor Turner alleg-

edly deprives him of a vote in certain primary elections, and the

common law would afford Polelle relief if that deprivation were

improper. Not only that, but Polelle has also identified colorable

constitutional interests that Florida’s closed primary elections bur-

den—his right to a meaningful vote, his right to be free from dis-

crimination based on political beliefs, and his right to the equal pro-

tection of the laws. Plus, Supervisor Turner enforces the statutes

that inflict those injuries, which means a federal-court injunction

could remedy them. So Polelle has adequately alleged an injury in

fact, traceable to Supervisor Turner and redressable by the federal

courts. In brief, he has standing to sue at least one defendant. And

on to the merits we go.

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56 Opinion of the Court 22-14031

B. Polelle fails to state a claim for relief because Florida’s interest in

holding closed primary elections outweighs the minimal burdens

on Polelle’s First and Fourteenth Amendment rights.

Polelle’s complaint sets forth three claims for relief: (1) a vi-

olation of his First Amendment freedoms from compelled speech

or association; (2) a violation of his fundamental right to vote; and

(3) a violation of his equal-protection rights. We employ the

framework that the Supreme Court refined in Anderson v. Cele-

brezze, 460 U.S. 780 (1983), and Burdick v. Takushi, 504 U.S. 428

(1992) (commonly referred to as the “Anderson-Burdick” frame-

work), to assess the merits of these claims.20 See Crawford v. Marion

20 When, as here, voting-rights complainants allege violations of the Equal

Protection Clause, we distinguish between allegations that “the state has un-

constitutionally burdened the right to vote” and assertions that “discrimina-

tory animus motivated the legislature to enact a voting law.” Democratic Exec.

Comm. of Fla. v. Lee, 915 F.3d 1312, 1319 n.9 (11th Cir. 2019). Claims that the

state has unconstitutionally burdened the right to vote fall under the Anderson-

Burdick framework, but assertions that discriminatory animus motivated the

legislature to enact a voting law state “a traditional Equal Protection Clause

claim.” Id. Here, Polelle’s third claim could, at least initially, be characterized

as either. He claims Florida “invidiously discriminated against” voters who

have not affiliated with a political party. But he also asserts that such alleged

discrimination prevents “Not Politically Affiliated” voters “from having the

same opportunity to affect the outcome of a general election” as affiliated vot-

ers do. Still, Polelle does not allege any facts showing that Florida acted with

discriminatory animus. Instead, he argues Florida’s system of primary elec-

tions does not treat purportedly “similarly situated” voters alike. So we eval-

uate his third claim under the Anderson-Burdick framework. See id. at 1319

(“[W]hen a state regulation is found to treat voters differently in a way that

burdens the fundamental right to vote, the Anderson-Burdick standard applies.”

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22-14031 Opinion of the Court 57

Cnty. Election Bd., 553 U.S. 181, 189–90 (2008) (plurality opinion) (ex-

plaining the development of the Anderson-Burdick test).

Anderson-Burdick “requires us to weigh the character and

magnitude of the asserted First and Fourteenth Amendment injury

against the state’s proffered justifications” for the burdens the state

imposes, “taking into consideration the extent to which those jus-

tifications require the burden to plaintiffs’ rights.” Lee, 915 F.3d at

1318. We strictly scrutinize laws that severely burden a plaintiff’s

speech, association, or voting rights. Id. That means we require

the government action to “be narrowly drawn to serve a compel-

ling state interest.” Id. At the other end of the scrutiny scale—

when the state “imposes only a slight burden” on a plaintiff’s

rights—“relevant and legitimate interests of sufficient weight . . .

must justify that burden.” Id. at 1318–19 (citing Billups, 554 F.3d at

1352). Ultimately, our analysis follows a sliding scale, as opposed to

strict tiers; the “more a challenged law burdens the right to vote,

the stricter the scrutiny to which we subject that law.” Id. at 1319

(citing Stein v. Ala. Sec’y of State, 774 F.3d 689, 694 (11th Cir. 2014)).

To conduct the Anderson-Burdick analysis here, we would or-

dinarily assess the burden that state action imposes on the plaintiff’s

asserted constitutional interests, consider the state’s asserted justi-

fications for the burden, and then weigh the burden on the plain-

tiff’s rights against the state’s asserted justifications. See, e.g., id. at

(quoting Obama for Am. v. Husted, 697 F.3d 423, 429-30 (6th Cir. 2012)); Burdick,

504 U.S. at 434 (assessing whether the challenged law is “nondiscriminatory”);

Hero, 42 F.4th at 776 (same).

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58 Opinion of the Court 22-14031

1319–26; Curling v. Raffensperger, 50 F.4th 1114, 1121 (11th Cir. 2022).

But as we highlighted earlier, binding Supreme Court precedent

has already addressed the very claims Polelle now asserts.

In Nader v. Schaffer, a group of independent voters chal-

lenged Connecticut’s closed primary elections. 417 F. Supp. 837

(D. Conn. 1976). They argued “that participation in a primary elec-

tion is an exercise of the constitutionally protected right to vote

and of the constitutionally protected right to associate with others

in support of a candidate”; that as to the right to associate, “there

is a constitutionally protected correlative right not to associate, and

to be free from coerced associations”; and that Connecticut’s

closed primary “limits them to” the exercise of “one or the other.”

Id. at 842. A three-judge panel rejected those independent voters’

claims. And the Supreme Court summarily affirmed. Nader v.

Schaffer, 429 U.S. 989 (1976) (mem.).

Polelle argues that Nader is weak precedent because it is a

summary affirmance. And to be sure, “the precedential effect of a

summary affirmance extends no further than the precise issues pre-

sented and necessarily decided by those actions.” Anderson, 460 U.S.

at 784 n.5. But Polelle brings the exact same claims as the plaintiffs

in Nader did. So the precedential value of the Supreme Court’s

summary affirmance in Nader extends pretty far here. In fact, be-

cause Nader addresses the “precise issues presented” in this case, it

controls.

And in any event, Polelle understates Nader’s canonical sta-

tus; it’s precedent on which the Supreme Court has repeatedly

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22-14031 Opinion of the Court 59

relied. See, e.g., Tashjian, 479 U.S. at 215 n.6 (citing Nader for the

proposition that “the nonmember’s desire to participate in the

party’s affairs is overborne by the countervailing and legitimate

right of the party to determine its own membership qualifica-

tions”); Jones, 530 U.S. at 583 (same). In Clingman, for instance, the

Court even referred to Nader as a decision of “this Court.” 544 U.S.

at 593–94. So we have no trouble concluding that Nader binds us

and that we must follow its reasoning to the extent it applies to the

facts of Polelle’s case. See United States v. Thomas, 242 F.3d 1028,

1035 (11th Cir. 2001) (“[W]e are bound to follow [Nader] unless and

until the Supreme Court itself overrules that decision.”); cf. Schwab

v. Crosby, 451 F.3d 1308, 1325 (11th Cir. 2006) (explaining courts

should follow “Supreme Court dicta” that is “well thought out,

thoroughly reasoned, and carefully articulated analysis . . . describ-

ing the scope of one of its own decisions”).

For that reason, our analysis picks up where Nader left off.

We first recount Nader’s evaluation of the Nader plaintiffs’ claims

and then assess whether Polelle has identified any “changed cir-

cumstances,” such as new law or facts, that “require a different re-

sult [from Nader] under the Anderson-Burdick test.” Indep. Party of

Fla. v. Sec’y, State of Fla., 967 F.3d 1277, 1282 (11th Cir. 2020); see

Cowen v. Ga. Sec’y of State, 960 F.3d 1339, 1343 n.1 (11th Cir. 2020)

(“[T]he Anderson analysis must be undertaken even if the very same

requirement had been previously upheld as constitutional, if there

are at least some non-frivolous arguments that, since the decision

upholding the requirement, circumstances have changed the con-

text of the analysis.”). Although some relevant differences exist

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60 Opinion of the Court 22-14031

between Nader and Polelle’s case, we conclude that those differ-

ences aren’t significant enough to alter the balance that the Nader

panel struck and that the Supreme Court adopted.

1. Nader rejected voters’ claims that a system of closed pri-

mary elections unconstitutionally burdened their First

and Fourteenth Amendment interests.

We start by noting that the Nader panel rendered its decision

before the Supreme Court refined the Anderson-Burdick framework

that now hones our constitutional analysis. Even so, the opinion

conducted effectively the same balancing inquiry. So we recount

Nader’s opinion through that lens. First, we discuss Nader’s assess-

ment of the burdens Connecticut’s closed primary imposed on the

voter plaintiffs’ First and Fourteenth Amendment rights, noting

that the Court concluded that those burdens were minimal. Sec-

ond, we discuss the state interests that Connecticut asserted and

that the panel credited. And third, we revisit Nader’s conclusion

that the State’s asserted interests were sufficiently weighty to justify

the minimal burdens the state imposed on the plaintiffs’ constitu-

tional interest.

To begin, we discuss the burdens Nader considered. The

Nader panel first concluded that Connecticut’s closed primary elec-

tions minimally burdened the plaintiff voters’ First and Fourteenth

Amendment rights to cast a meaningful vote. It explained that the

plaintiffs’ failure to “enroll in the Democratic or Republican Par-

ties” did “not prevent them from” supporting their preferred can-

didate through other avenues of expression, such as volunteering,

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22-14031 Opinion of the Court 61

“contributing money,” signing petitions, or participating with po-

litical parties as those parties’ own rules allowed. Nader, 417 F.

Supp. at 842. As the three-judge court noted, “Connecticut’s voting

laws clearly provide avenues for supporting candidates of one’s per-

suasion without affiliating with an established ‘major’ political

party.” Id.; see Hero, 42 F.4th at 776 (“Indiana law provides alterna-

tive means to access the general-election ballot.”).

Plus, the Nader court observed, Connecticut was not a “one-

party” state such that any “party’s primary election” was “com-

pletely determinative of the outcome.” 417 F. Supp. at 843 (com-

paring its facts to those of United States v. Classic, 313 U.S. 299

(1941)). That fact was especially true for “local elections,” where

“both minor party and independent candidates” could “reasonably

anticipate a measure of success.” Id. So even if the plaintiffs chose

“not to associate, by not enrolling in a party, their right to vote in

the general election [was] unaffected.” Id. at 847.

And relatedly, the Nader court explained that the burden on

the plaintiffs’ right to an effective vote was minimal because the

closed-primary statute only slightly infringed the plaintiffs’ First

Amendment rights not to associate with political groups and be-

liefs. “[E]nrollment in Connecticut impose[d] absolutely no affirm-

ative party obligations on the voter, in terms of time or money, and

it d[id] not even obligate [the plaintiffs] to vote for the party’s posi-

tions or candidates or to vote at all.” Id. at 843. Not only that, but

a “voter’s name could be erased from the party’s enrollment list on

a proper showing that he does not support the party’s principles or

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62 Opinion of the Court 22-14031

candidates.” Id. at 843–44 (noting that, “in actual practice,” those

“statutes” were “not used”). So the panel concluded that “[s]uch

limited public affiliation is simply not comparable to the coerced

orthodoxy imposed by government officials in the cases cited by

plaintiffs.” Id. at 844.

In one of those cases—West Virginia State Board of Education

v. Barnette—for instance, the Supreme Court held unconstitutional

a school’s requirement that students each day salute the American

flag and recite the pledge of allegiance. 319 U.S. at 642; see also

Russo v. Cent. Sch. Dist. No. 1, 469 F.2d 623, 625 (2d Cir. 1972)

(teacher’s refusal to salute the flag and recite the pledge). The

Court was concerned that the state essentially “force[d] citizens to

confess by word or act their faith” in a political “orthodox[y].” Bar-

nette, 319 U.S. at 642. By contrast, in Nader, registering for a politi-

cal party was primarily a ministerial act that did not require any

confession of faith or affirmative support of the political party or

its beliefs. 417 F. Supp. at 844. And even if “some affiliation” was

“coerced,” the voter “at least” could “choose his party, whereas in

the cases just listed there was no such choice.” Id.

So the panel concluded that the burdens on the plaintiffs’

right not to associate with political groups and to cast an effective

ballot were not substantial. 21 Connecticut required only “a

21 Nader also rejected the plaintiffs’ argument that “the public nature of enroll-

ment violates their right to privacy of association by potentially subjecting

them to harassment because of their affiliations with a party.” 417 F. Supp. at

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22-14031 Opinion of the Court 63

minimal demonstration by the voter that he has some ‘commit-

ment’ to the party in whose primary he wishes to participate.” Id.

at 847. The registration requirement did not “constitute anything

in the nature of an absolute barrier to voting in a primary election.”

Id. As a result, the Nader court rejected the plaintiffs’ contention

that Connecticut could sustain its law only by showing that the law

was the “least drastic means available” to serve its “compelling state

interest.” Id. at 844 (citation omitted). Instead, the panel explained

that “[t]here must be more than a minimal infringement on the

rights to vote and of association . . . before strict judicial review is

warranted.” Id. at 849.

Then, the Nader court proceeded to what we now consider

the second step of the Anderson-Burdick framework: assessing the

State’s asserted interests. Nader credited three interests supporting

closed primary elections.

First, it explained that the Constitution secures the rights of

political parties to select their candidates and that states may “af-

firmative[ly] protect[]” those “associational rights.” Id. at 845. The

844. Polelle makes the same argument in his reply brief, asserting that he will

“suffer harassment by misled solicitations from party operatives at election

time.” We don’t consider this argument because (1) Polelle did not plead it,

see Iqbal, 556 U.S. at 677, and (2) he raised it for the first time in his reply brief,

see Sapuppo, 739 F.3d at 683. But in any event, like in Nader, Polelle’s brief

“merely . . . raise[s] the spectre of harassment” and has not made “a detailed

factual showing of actual threats or incidents of harassment.” 417 F. Supp. at

844. So we do not consider in our analysis any potential burden on Polelle’s

First Amendment interests that Polelle’s speculative threats of harassment at-

tempt to raise.

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64 Opinion of the Court 22-14031

court reasoned that if the political party were “a completely private

organization with no government regulation,” it would have ple-

nary control over “participation in its nominating process.” Id. So

“[i]n the regulated situation, the state has a legitimate interest in

protecting party members’ associational rights, by legislating to

protect the party ‘from intrusion by those with adverse political

principles.’” Id. (quoting Ray v. Blair, 343 U.S. 214, 221 (1952)).

Second, and relatedly, the Nader panel discussed the state’s

“more general, but equally legitimate, interest in protecting the

overall integrity of the historic electoral process,” including “pre-

serving parties as viable and identifiable interest groups” and

“[e]nsuring that the results of primary elections, in a broad sense,

accurately reflect the voting of party members.” Id. To the extent

the public relied on parties’ brands to embody certain political po-

sitions, the Nader panel said, the state had an affirmative interest in

maintaining those brands—and thus aiding the public in making

informed voting choices—by “preventing fraudulent and deceptive

conduct which mars the nominating process.” Id.

Third, the Nader panel concluded that requiring that voters

enroll in political parties served “an important housekeeping func-

tion” that strengthened electoral competition. Id. at 848. As the

panel saw things, “[c]andidates need to know who is in the elec-

torate, so that they (the candidates) can attempt to persuade those

individuals to vote for them.” Id. “[D]irect solicitation of party

members by mail, telephone, or face-to-face contact, and by the

candidates themselves or by their active supporters is part of any

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primary election campaign.” Id. Yet “without the public list of ”

individuals’ registration, “such electioneering would become quite

difficult.” Id. In other words, the Nader panel determined, the

state’s requirement that individuals register for a particular party to

participate in its primary enhanced candidates’ ability to communi-

cate with voters, identify their needs, and campaign on those issues.

Finally, the Nader court conducted the last Anderson-Burdick

step by balancing the burdens on the plaintiffs’ constitutional rights

against the State’s asserted interests. Because the burdens on the

plaintiffs’ rights were minimal and Connecticut’s election regime

was “reasonably related to the accomplishment of legitimate state

goals,” the Court reasoned that Connecticut’s closed primary was

constitutional. Id. at 849.

Influential in the panel’s conclusion was the recognition

that, across the country, the format of states’ primary elections

“had been the subject of controversy.” Id. Other states, for in-

stance, enacted open primaries. Id. But, as the panel observed, one

state’s contrary policy choice does not make another’s “election

laws unconstitutional” or “invidiously discriminatory.” Id. at 850.

Rather, the Nader panel explained, state legislatures “have broad

discretion in formulating election policies.” Id. (quoting Tansley v.

Grasso, 315 F. Supp. 513, 519 (D. Conn. 1970) (three-judge court)).

At bottom, the Nader court concluded that Connecticut’s policy

choice served “legitimate goals through constitutionally permissi-

ble means,” so there was “no need or occasion for the judicial relief

requested by the plaintiffs.” Id.

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66 Opinion of the Court 22-14031

2. Polelle cannot adequately distinguish his claims from

those in Nader, so binding precedent requires us to con-

clude that Florida’s interest in closing its primary elec-

tions outweighs the burdens on Polelle’s First and Four-

teenth Amendment interests under the Anderson-Burdick

framework.

Polelle appears to make four arguments in support of his

contention that Florida’s system of closed primary elections vio-

lates his First and Fourteenth Amendment rights. We find none

persuasive.

To start, two of Polelle’s arguments suggest that we should

depart from Anderson-Burdick and strictly scrutinize Florida’s sys-

tem of closed primary elections.

First, Polelle relies on Hill v. Stone, 421 U.S. 289 (1975), Kramer

v. Union Free School District No. 15, 395 U.S. 621 (1969), and other

precedent to argue that “restrictions on the franchise other than

residence, age, and citizenship must promote a compelling state in-

terest in order to survive a constitutional attack,” Hill, 421 U.S. at

295. According to Polelle, party allegiance is not one of the limited

restrictive categories that is exempt from strict scrutiny.

The problem for Polelle is that Nader expressly rejected

Polelle’s argument—and it did so while referencing Hill and Kramer.

Indeed, the Nader panel held that “a state might reasonably classify

voters or candidates according to party affiliations.” 417 F. Supp. at

848 (quoting Blair, 343 U.S. at 226 n.14). In contrast to the strict

qualifications-based restrictions at issue in Hill (only those with

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22-14031 Opinion of the Court 67

rendered, taxable property could vote) and Kramer (only those who

owned or leased taxable real property or had children in public

schools could vote), the Nader panel reasoned, party-affiliation re-

quirements are “not . . . a political caste system.” Nader, 417 F.

Supp. at 848.

Rather, Polelle “refrains from entering a party primary”

solely “because he regards himself an independent.” Id. at 848

(quoting Pirincin v. Bd. of Elections of Cuyahoga Cnty., 368 F. Supp.

64, 70 (N.D. Ohio) (three-judge court), aff’d mem., 414 U.S. 990

(1973)). So neither Hill nor Kramer allows us to apply any stricter

level of scrutiny to the burden Florida’s closed system of primary

elections imposes; we apply a flexible standard that calls for a “cor-

responding interest sufficiently weighty to justify” the burdens on

voters’ rights, Crawford, 553 U.S. at 190 (plurality opinion) (quoting

Norman v. Reed, 502 U.S. 279, 288–89 (1992)). And as Nader con-

cluded, that burden is minimal.

Second, Polelle argues in reply that Janus v. American Federa-

tion of State, County, and Municipal Employees, Council 31, 585 U.S.

878 (2018), and other recent, compelled-speech cases require us to

apply a higher level of scrutiny to the burden that Florida’s closed

system of primary elections imposes on his First Amendment

rights to disassociate from political messages with which he disa-

grees. But the issue is not, as Polelle suggests, that Nader declined

to extend compelled-speech doctrine to the election-law context.

Rather, it is that Connecticut’s party-registration requirement did

not burden voters as severely as did the state action in the

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68 Opinion of the Court 22-14031

compelled-speech cases that Nader’s plaintiffs (and Polelle) cited.

And Polelle does not offer a concrete reason we should balance the

burdens differently.

For instance, the burden at issue in Janus—forced monetary

subsidization, 585 U.S. at 884—was a burden the Nader court explic-

itly found to be absent from Connecticut’s closed-primary require-

ments, see 417 F. Supp. at 843 (finding the closed-primary statute

imposed “no affirmative party obligations on the voter, in terms of

time or money”). Florida’s registration laws similarly do not im-

pose monetary burdens on party affiliates. Polelle thus offers no

reason we should (or can) depart from the balancing framework

Nader and Anderson-Burdick employ.

So we move on to Polelle’s third and fourth arguments for

why Florida’s closed-primary system violates his First and Four-

teenth Amendment rights. In both these arguments, Polelle points

to factual distinctions between Florida’s system of closed primaries

and the system at issue in Nader, and he says those distinctions com-

pel a different conclusion under the Anderson-Burdick framework.

Polelle’s third argument relates to the burden side of the balancing

test; he suggests the burdens on his Fourteenth Amendment right

to an effective vote are much greater here because Sarasota County

is a one-party jurisdiction with no competition in the general elec-

tion. Then, his fourth argument attempts to rebut some of Flor-

ida’s asserted interests; he claims Florida need not support parties’

First Amendment rights because Florida could switch to non-

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22-14031 Opinion of the Court 69

partisan primaries that secure both his and the parties’ constitu-

tional interests. We address each argument in turn.

Polelle’s third argument is his strongest. Polelle highlights

that here, unlike in Nader, for many public offices, Sarasota

County’s primaries are “the only stage of the election procedure

when” voters’ “choice is of significance.” Classic, 313 U.S. at 314;

see Terry, 345 U.S. at 484 (Clark, J., concurring) (discussing exclusion

from “the locus of effective political choice”). When Nader issued,

Connecticut was not a “‘one-party’ state” where “one party’s pri-

mary” was “completely determinative of the outcome.” 417 F.

Supp. at 483 (comparing its facts to those of Classic). Rather, “mi-

nor party and independent candidates” could “reasonably antici-

pate a measure of success in local elections.” Id. Indeed, “inde-

pendent voters” were of “demographic importance . . . in Connect-

icut politics.” Tashjian, 479 U.S. at 212.

By contrast, the local elections in Sarasota County are dom-

inated by a single political party. “Republican primaries,” after all,

“have determined the outcome of most of Sarasota County’s par-

tisan elections since 1968.” Supra note 4. So the stakes of exclusion

from Sarasota County’s primaries are higher here than they were

in Nader.

But even though the stakes of exclusion are higher here, the

actual barriers to enter “the only stage of the election procedure

when” a voter’s “choice is of significance,” Classic, 313 U.S. at 314—

and therefore the actual burden on Polelle’s First and Fourteenth

Amendment interests—are the same as they were in Nader:

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70 Opinion of the Court 22-14031

minimal. They are not like those in Classic, or the other White Pri-

mary Cases that Polelle cites, where the barriers to an effective vote

were substantially higher, if not categorical.

In Classic, for instance, the United States indicted Classic and

others for willfully altering and falsely counting and certifying bal-

lots cast in a congressional primary election. 313 U.S. at 307. At a

minimum, the false tally diluted the effectiveness of each voter’s

ballot. Baker, 369 U.S. at 208 (citing Classic as a case of “dilution by

false tally”); Classic, 313 U.S. at 308 (recounting the allegation that

the defendants altered around one hundred ballots). And at worst,

in a close race, that dilution could change the outcome of an elec-

tion so as to completely nullify the voters’ choice. See Jacobson, 974

F.3d at 1246–47 (explaining vote nullification injures voters).

And in Terry, as with the other White Primary Cases, Black

Americans simply could not participate in the election’s critical

juncture. See 345 U.S. at 462–66 (opinion of Black, J.). The Jaybirds,

a private political organization, held its own nonpublic primary to

predetermine the outcome of certain elections to purposely and

categorically deny Black Americans their right to vote. Id. at 469–

70.

Classic, Terry, and the other White Primary Cases do not in-

volve facts analogous to those at issue here. Polelle does not face

similar obstacles to participate in the primary elections where Sar-

asota County effectively chooses its representatives. Florida law

does not restrict Polelle’s ability to support his candidate of choice;

he may do so through a wide variety of means, whether it be

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volunteering his time or donating money. See Nader, 417 F. Supp.

at 842. At the same time, Florida law places Polelle under no “af-

firmative . . . obligation” to contribute “time or money” to a party.

Id. at 843. Nor must Polelle profess substantive support for “the

party’s positions or candidates” or make any other pledge of affili-

ation “comparable to . . . coerced orthodoxy.” Id. at 843–44.

And as Polelle admits, he can vote in a party primary “so

long as he has changed his non-affiliated registration to affiliation

with a political party recognized by the State of Florida twenty-

nine days prior to the primary in question.” That “enrollment pro-

cess” imposes only the “minimal . . . ‘commitment’” of registering

with a party and does not “constitute anything in the nature of an

absolute barrier.” Nader, 417 F. Supp. at 847. And just like in Nader,

Polelle can disaffiliate at any time. Id. Florida does not lock him

into an unwanted party affiliation after registration. See Clingman,

544 U.S. at 591 (citing Kusper v. Pontikes, 414 U.S. 51, 60–61 (1973)).

In fact, Polelle may not even have to wait until after a primary elec-

tion to disaffiliate from the party of the primary in which he wishes

to participate. Florida law may allow him to do so after the regis-

tration books for the primary election close on the twenty-ninth

day before the primary occurs.22 So if Polelle truly wished, he

22 “A person can register with a party or change his or her party affiliation any

time, but to vote for a party candidate in a primary election, one must be reg-

istered with the party before the voter registration deadline, which is the 29th

day before an election.” Primary Elections, RON TURNER, SUPERVISOR OF

ELECTIONS, https://www.sarasotavotes.gov/Election-Information/Primary-

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72 Opinion of the Court 22-14031

could conceivably register with a party for a short period to qualify

for a relevant primary election but disaffiliate thereafter.

Because Polelle “can join a political party merely by asking

for the appropriate ballot at the appropriate time or (at most) by

registering within a state-defined reasonable period of time before

an election,” Florida’s closed primary “does not unduly hinder” his

First and Fourteenth Amendment rights. Clingman, 544 U.S. at 590

(quoting Jones, 530 U.S. at 596 (Stevens, J., dissenting)) (cleaned up);

see also id. at 604 (O’Connor, J., concurring in part and concurring

in the judgment) (explaining “reasonable reregistration proce-

dures” suggest an absence of “anticompetitive regulatory re-

strictions,” “partisan self dealing[,] or a lockup of the political pro-

cess that would warrant heightened judicial scrutiny”).

Polelle’s fourth proposed distinction seeks to convince us

that the interests that Florida asserts at the second step of the An-

derson-Burdick balancing framework are due less weight than Con-

necticut’s same interests in Nader. He notes that the Supreme

Court in Washington State Grange v. Washington State Republican

Party, facially upheld Washington’s non-partisan primaries. 552

U.S. 442 (2008). So he argues that Florida can’t rely on its interest

in supporting political parties’ First Amendment rights to select its

Elections (last visited Feb. 17, 2025) [https://perma.cc/M6LV-LJZD]. “Once

the registration books are closed for an election, new registrations and party

changes will be accepted but only for the purpose of future elections.” Id. (emphasis

added).

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22-14031 Opinion of the Court 73

nominee; as Jones discussed, parties’ rights are “are not inherently

incompatible” with Polelle’s. 530 U.S. at 586.

To be sure (and as we’ve explained), Polelle’s claims are dis-

tinguishable from those in Nader and Jones because Polelle does not

request relief that directly infringes parties’ associational rights.

But Polelle’s argument removes from the Anderson-Burdick balance

only Florida’s asserted interests in supporting parties’ own First

Amendment rights. It does not undermine the other legitimate in-

terests a state still has in bolstering partisan electoral competition

by preserving political parties as viable and identifiable interest

groups and enhancing candidates’ electioneering and party-build-

ing efforts. And those, we hold, are still sufficiently weighty to jus-

tify the minimal burdens on his First and Fourteenth Amendment

rights.

Florida may wish to promote political parties as viable and

identifiable interest groups because it may permissibly conclude

that “proper party functioning is critical to the central public good

of democratic governance.” SAMUEL ISSACHAROFF, DEMOCRACY

UNMOORED 65 (Oxford Univ. Press 2023); see Timmons v. Twin Cities

Area New Party, 520 U.S. 351, 367 (1997) (“The Constitution permits

the Minnesota Legislature to decide that political stability is best

served through a healthy two-party system.”).

To govern effectively, elected officials must find compromise

among dozens, if not hundreds, of colleagues who represent a di-

verse group of constituents with varying interests. Coordinating a

legislative agenda can be difficult, if not impossible, even at the

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74 Opinion of the Court 22-14031

local level. See generally Kenneth J. Arrow, A Difficulty in the Concept

of Social Welfare, 58 J. POL. ECON. 328 (1950) (explaining, in a Nobel

Prize-winning piece, that it is difficult, if not impossible, to aggre-

gate elected officials’ and voters’ policy preferences into collective

choices). So governments seek democratic structures that help re-

duce this collective-action difficulty and enable them to effect

change that benefits the people they represent.

And Florida may constitutionally conclude that political par-

ties provide such a democratic structure. The State may reasonably

determine that political parties help identify voters’ preferences

and mediate between candidates’ ideologies so that elected officials

can cohere around a set of policy priorities. See ISSACHAROFF,

DEMOCRACY UNMOORED, supra, at 65. Or it may believe that parties

help officials conduct daily business; parties could eliminate, for in-

stance, the need for one legislature to whip several dozens if not

hundreds of votes themselves. Id. As the Supreme Court has re-

peatedly recognized, parties “were created by necessity . . . so as to

coordinate efforts to secure needed legislation and oppose that

deemed undesirable.” Blair, 343 U.S. at 221; see also Davis v.

Bandemer, 478 U.S. 109, 144–45 (1986) (O’Connor, J., concurring in

the judgment) (“[A] strong and stable two-party system in this

country has contributed enormously to sound and effective gov-

ernment.”); Branti v. Finkel, 445 U.S. 507, 532 (1980) (Powell, J., dis-

senting) (“Broad-based political parties supply an essential coher-

ence and flexibility to the American political scene.”).

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22-14031 Opinion of the Court 75

Florida could also reasonably conclude that coordinating

governance through political parties empowers voters. See Nader,

417 F. Supp. at 845; Clingman, 544 U.S. at 594. As binding precedent

explains, when “party labels” bec

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