Petition for Writ of Certiorari — Citizens for Police Accountability Political Committee v. Browning

FILED

No.09-__g9-861 _"M10

OFFICE OF inc ULERK

K. Suter, Clark

nited States

IN THE

Supreme Court of each

CITIZENS FOR POLICE ACCOUNTABILITY POLITICAL COMMITTEE,

Petitioner,

—and—

FLORIDA STATE CONFERENCE OF THE NATIONAL ASSOCIATION

FOR THE ADVANCEMENT OF COLORED PEOPLE,

Petitioner,

= —V,- —

KURT S. BROWNING, in his capacity as Secretary of State

of the State of Florida,

Respondent,

—and—

SHARON L. HARRINGTON, in her official capacity

as Supervisor of Elections, Lee County,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

GREGG D. THOMAS RANDALL C. MARSHALL

Counsel of Record MUSLIMA LEWIS

JAMES J. MCGUIRE AMERICAN CIVIL LIBERTIES

PAUL R. MCADOO UNION FOUNDATION OF

THOMAS, LOCICERO FLORIDA, INC.

& BRALOW PL 4500 Biscayne Boulevard,

400 N. Ashley Drive, Suite 1100 Suite 340

Tampa, Florida 33602 Miami, Florida 33137

(813) 984-3060 (786) 363-2700

Counsel for Petitioners

QUESTIONS PRESENTED

In what circumstances does the _ First

Amendment permit a State to ban _ petition

circulation among voters as they exit polling places?

Specifically:

Did the Eleventh Circuit Court of

Appeals improperly extend and apply the

plurality opinion in Burson v. Freeman, 504

U.S. 191 (1992), when it reversed the district

court and upheld the constitutionality of

Florida Statutes Section 102.031(4) (2008) as

applied to Petitioners’ ext-only petition

circulation?

Is Florida Statutes Section 102.031(4)

unconstitutional as applied to _ prohibit

Petitioners’ exit-only petition § circulation

where the same statute specifically permits

media and non-media exit polling?

PARTIES TO THE PROCEEDING

Petitioners are Citizens for Police Account-

ability Political Committee and Florida State

Conference of the National Association for the

Advancement of Colored People, Plaintiffs-Appellees

below. Respondents are Kurt S. Browning, in his

official capacity as Secretary of State of the State of

Florida, and Sharon L. Harrington, in her official

capacity as Supervisor of Elections, Lee County,

Defendants-Appellants below.

RULE 29.6 DISCLOSURE

Pursuant to Supreme Court Rule 29.6, Citi-

zens for Police Accountability Political Committee

has no parent, subsidiary or affiliated corporations.

Petitioner Florida State Conference of the NAACP is

a unit of the National NAACP, which is a nonprofit

corporation incorporated in New York with its

principal place of business in Maryland. It does not

issue stock.

TABLE OF CONTENTS

Page

SFE PEPE OED WR MIOG D BOER inciscisecossccsesstarsncnscosseteoseses i

PARTIES TO THE PROCEEDING ..........................048 li

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Ree IE EIT sc ssoicascecccsocassecexvaiercusessevbansseereurenees 1

JURISDICTIONAL GROUNDB............... ccc ccceeeeeeneeeeeee 1

RELEVANT CONSTITUTIONAL AND

STARE ROE PY BIN evessscccvcrscccervevesssonassses 2

STATEMENT OF THE CASE AND FACTS .............. 4

IN iss Ln snicicdchlpaxtneiunesecsannseebinseveaeas Sedsasiuseaa 4

ee so oa su sckincusncuulenons 5

Petitioners’ First Amendment Speech..................... 7

The District Court Proceedings .................ccccccceeeeeee 8

Petitioners’ Evidence in the District Court ......... 9

Respondent's Evidence in the District

RII ulate vewbnkaicnsasakislasncdacdesyeieesecs cosccusbadiiesobaceaiees 11

The District Court Grants the Preliminary

RI cic sa cincsceiaa eel casuanibticcitie nb bcincauaenandewen 11

ill

TABLE OF CONTENTS - Continued

Page

The Eleventh Circuit Reverses .....................0.00. 13

WHY THE WRIT SHOULD BE GRANTED............. 14

1. The Writ Should Be Granted so that

the Court May Resolve Uncertainty

About the Exercise of First

Amendment Rights near Polling

Sane aaa ae Nap aE OTD AO MN HT RN ES UR EOE 16

2. The Writ Should Be Granted

Because the Eleventh Circuit’s

Opinion Erroneously Establishes a

Standard Under Which “Exit

Polling” Is Entitled to Greater First

Amendment Protection than Other

I SII Si coud. hndackassssnacntumnicsanadoescsasananens 24

NIN iia dsc dcdiensancennctccdescineeksanencbotacneiooiems 28

APPENDIX

25 June 2009 Eleventh Circuit Opinion.............. la

22 August 2008 District Court Opinion and

22 August 2008 District Court Preliminary

SEMI TEN LON LE NE EN ET 42a

4 September 2009 Eleventh Circuit Order

EY TN onc sascundsnanienceonenecanie 45a

iV

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Amer. Broad. Co. v. Blackwell,

479 F. Supp. 2d 719 (S.D. Ohio 2006)................... 21

Amer. Broad. Co. v. Heller,

No. 2:06-CV-01268-PMP-RJJ,

2006 WL 3149365 (D. Nev. Nov. 1, 2006)............. 20

Amer. Broad. Co. v. Ritchie, No. 08-5285,

2008 WL 4635377 (D. Minn. Oct. 15, 2008).......... 20

Amer. Broad. Co. v. Wells,

--- F. Supp. 2d ---, 2009 WL 3417589 (D.N.J.

ee oe rid accsanpansseateboneains 31, 33

Anderson v. Spear,

356 F.3d 651 (6th Cir. 2004) ..................... aaa 26, 27

Beacon Journal Publ’g Co. v. Blackwell,

380 F.3d GBS (Gth Cir. 2004) ........cccccoccceeccecccocessees 21

Buckley v. Amer. Constitutional Law Found.,

Inc.,

ee ee ass isco paccncusanccasineceucsedens 5, 15, 17

Burson v. Freeman,

SE Is sna pcsusnniipsdowsavananvacnunl passim

Caperton v. A.T. Massey Coal Co., Inc.,

as re I I cpccitnniccacisunscensccoavenscctsuiaewnen’ 16

TABLE OF AUTHORITIES - Continued

Page

Carey v. Brown,

ne Lo ss cnnutiibuned onveosennbeus 26

CBS Broad., Inc. v. Cobb,

470 F. Supp. 2d 1365 (S.D. Fla. 2006) ........ 6, 11, 21

CBS, Inc. v. Smith,

681 F. Supp. 794 (S.D. Fla. 1988) .......... eandata semis 6

Clean-Up ‘84 v. Heinrich,

582 F. Supp. 125 (M.D. Fla. 1984) ...........0.--. rts 6

Clean-Up 84 v. Heinrich,

590 F. Supp. 928 (M.D. Fla. 1984).......... siuanduencn ae ae

Clean-Up ’84 v. Heinrich,

- BA Ll lee ee. Te ab) |.) eerenernrEnEE 6

Xohen v. California,

se bichobaveiatensindevenbs 27

Eu v. San Francisco Cty. Democratic Cent.

Comm.,

so ccalisbaneiabeianonseteniens 14

Fla. Comm. For Liability Reform v. McMillan,

682 F. Supp. 1536 (M.D. Fla. 1988) 0.0.0... 6

Meyer v. Grant,

486 U.S. 414 (1988)................. ssieikeneeanauasenaiaass 15, 17

vl

ee = et a Lal e - al . ‘ . 4 — - al > = —_—

TABLE OF AUTHORITIES - Continued

Page

Roth v. United States,

Be es Ce i aidconcddnccodenssaccsacces sisuimmeniiatesiidas at aies 5

Schirmer v. Edwards,

ee Beg ¥e i) | eer 19, 20

Tashjian v. Republican Party of Conn.,

nn asain 15

Turner Broad. Sys., Inc. v. FCC,

Be UF Bee Gee Ce Rice cccnceccvcrscesosccssccses catalan 26

U.S. v. Playboy Entm’t Group, Inc.,

Be GPA CUD Ce iscicenccctnscseccsssocecess nN vabddeupdaas 27

United Food & Commercial Workers Local

1099 v. City of Sidney,

364 F.3d 738 (6th Cir. 2004) ............. PORN Se ae 19, 20

STATE CASES

Caperton v. A.T. Massey Coal, Inc.,

679 S.E.2d 223 (W. Va. 2008), reu’d, 129 S.

ae, SEE I axcskneucccensectasuusdenstodgusmcubtennnaneusaeantses 25

In re: Attorney General's “Directive on Exit

Polling: Media and Non-partisan Public

Interest Groups,”

Oe Be Se ees SD vncctncececivsenssnnccsascneccsterecences 21

State v. Schirmer,

GOS Te. Bae BBD Ca. LODE) q0..0000cccccceccceresccccccvcececccsss 20

TABLE OF AUTHORITIES - Continued

Page

FEDERAL STATUTES

28 U.S.C. § 1254(1) (2006)............... ee ]

42 U.S.C. & 1BBSB CAOOGS) ..cccccecocececcccceoess: ee e

STATE STATUTES

Fla. Stat. § 102.031(4) (2008) ................... cotacmal passim

Fla. Stat. § 102.031(4) (2006) ................0..00000... eee 6, 7

or Dern © ccncecnbenensecoucshedssasuns 6

Fla. Stat. § 166.031(1) (2008) ..........0.0000000cc ee. 10, 17

CONSTITUTIONAL PROVISIONS

First Amendment, United States Constitution......... 2

Fourteenth Amendment, Section One, United

Nee nn aciscebonsesiseonss 2

OTHER AUTHORITIES

John G. Matsusaka, For the Many or the Few

SEAS ace eae SO. Bs ts eR 15

Vill

OPINIONS BELOW

The district court’s Opinion and Order is reported as

Citizens for Police Accountability Political Committee

v. Browning, 581 F. Supp. 2d 1164 (M.D. Fla. 2008),

and reproduced in the Appendix at 19a-41a.

The district court’s Preliminary Injunction is Citizens

for Police Accountability Political Committee v.

Browning, Case No. 2:08-cv-635-FtM-29SPC (M.D.

Fla. Aug. 22, 2008), and is reproduced in the

Appendix at 42a-44a.

The Eleventh Circuit’s opinion is reported as Citizens

for Police Accountability Political Committee v.

Browning, 572 F.3d 1213 (11th Cir. 2009), and

reproduced in the Appendix at la-18a.

The Eleventh Circuit’s Order Denying Rehearing is

Citizens for Police Accountability Political Committee

v. Browning, Case. No. 08-15115 (11th Cir. Sept. 9,

2009), and is reproduced in the Appendix at 45a-46a.

JURISDICTIONAL GROUNDS

Jurisdiction is proper in this Court. 28 U.S.C.

§ 1254(1) (2006). Petitioners, Citizens for Police

Accountability Political Committee (““CPAPC”) and

Florida State Conference of the National Association

for the Advancement of Colored People (“Florida

NAACP”) (collectively “Petitioners”), seek review of

the Eleventh Circuit Court of Appeals’ opinion

reversing the district court’s grant of a preliminary

injunction. The district court entered the preliminary

injunction after a hearing at which the court found,

among other things, that Petitioners had a

substantial likelihood of success on the merits of their

as-applied constitutional challenge to Florida

Statutes Section 102.031(4)(a)-(b) (2008). The

Eleventh Circuit reversed the district court order on

June 25, 2009, and denied Petitioners’ timely motion

for rehearing on September 9, 2009. Petitioners’

initial deadline for filing this Petition for Writ of

Certiorari was December 3, 2009, but Petitioners

sought and were granted an extension of time to

January 15, 2010 to file it.

RELEVANT CONSTITUTIONAL AND

STATUTORY PROVISIONS

First Amendment, United States Constitution:

Congress shall make no law respecting

an establishment of religion, or prohib

iting the free exercise thereof; or

abridging the freedom of speech, or of

the press; or the mght of the people

peaceably to assemble, and to petition

the Government for aé_ redress of

grievances.

Fourteenth Amendment, Section One, United States

Constitution:

All persons born or naturalized in the

United States, and subject to the juris-

diction thereof, are citizens of the United

States and of the State wherein they

reside. No State shall make or enforce

_—

any law which shall abridge the

privileges or immunities of citizens of

the United States; nor shall any State

deprive any person of life, liberty, or

property, without due process of law; nor

deny to any person within its juris-

diction the equal protection of the laws.

42 U.S.C. § 1983 (2006):

Every person who, under color of any

statute, ordinance, regulation, custom,

or usage, of any State or Territory or the

District of Columbia, subjects, or causes

to be subjected, any citizen of the United

States or other person within the

jurisdiction thereof to the deprivation of

any rights, privileges, or immunities

secured by the Constitution and laws,

shall be liable to the party injured in an

action at law, suit in equity, or other

proper proceeding ior redress, except

that in any action brought against a

judicial officer for an act or omission

taken in such officer’s judicial capacity,

injunctive relief shall not be granted

unless a declaratory decree was violated

or declaratory relief was unavailable.

For the purposes of this section, any Act

of Congress applicable exclusively to the

District of Columbia shall be considered

to be a _ statute of the District of

Columbia.

Florida Statutes Section 102.031(4)(a)-(b) (2008):

(4)(a) No person, political committee,

committee of continuous existence, or

other group or organization may solicit

voters inside the polling place or within

100 feet of the entrance to any polling

place, or polling room where the polling

place is also a polling room, or early

voting site. Before the opening of the

polling place or early voting site, the

clerk or supervisor shall designate the

no-solicitation zone and mark the

boundaries.

(b) For the purpose of this subsection,

the terms “solicit” or “solicitation” shall

include, but not be limited to, seeking or

attempting to seek any vote, fact,

opinion, or contribution; distributing or

attempting to distribute any political or

campaign material, leaflet, or handout;

conducting a poll except as specified in

this paragraph; seeking or attempting to

seek a signature on any petition; and

selling or attempting to sell any item.

The terms “solicit” or “solicitation” shall

not be construed to prohibit exit polling.

STATEMENT OF THE CASE AND FACTS

Introduction

The First Amendment “was fashioned to assure

unfettered interchange of ideas for the bringing about

of political and social changes desired by the people.”

Roth v. United States, 354 U.S. 476, 484 (1957).

Contrary to this principle, the State of Florida

interferes with the exchange of ideas by banning the

solicitation of petition signatures near polling places

from persons both before and after they have voted.

Fla. Stat. § 102.031(4)(a)-(b) (2008). This prohibition

imposes severe burdens upon Petitioners’ ability to

have their proposed amendment placed on a ballot.

See Buckley v. Amer. Constitutional Law Found., Inc.,

525 U.S. 182, 208 (1999) (Thomas, J. concurring)

(restrictions on petition circulation “plainly impose a

‘severe burden’ ”).

The Eleventh Circuit’s opinion, which reversed

the granting of a preliminary injunction by the

district court and which upheld the constitutionality

of Section 102.031(4)({a)-(b) as applied to Petitioners’

speech, is based upon an erroneous legal standard

and creates’ significant confusion about’ the

protections afforded by the First Amendment. The

Court should review this case because it presents

important questions of constitutional law that this

Court has not yet addressed, but should.

The Challenged Law

In 1977, the Florida Legislature for the first

time sought to regulate petition circulation outside of

polling places. The impetus behind this restriction

was a disgruntled Legislature reacting to the

Governor’s “successful drive to place a financial

disclosure law on the ballot through the initiative

process.” Clean-Up '84 v. Heinrich, 590 F. Supp. 928,

929 (M.D. Fla. 1984). In 1984 and again in 1988,

petition circulators and media exit pollsters brought a

qo

series of successful constitutional challenges to the

precursors of Section 102.031(4)(a)-(b). Clean-Up '84

v. Heinrich, 759 F.2d 1511, 1514 (11th Cir. 1985)

(petition circulation); CBS, Inc. v. Smith, 681 F.

Supp. 794, 796 (S.D. Fla. 1988) (exit polling); Fla.

Comm. For Liability Reform v. McMillan, 682 F.

Supp. 1536, 1540-42 (M.D. Fla. 1988) (petition

circulation); Clean-Up ‘84 v. Heinrich, 590 F. Supp.

928, 934 (M.D. Fla. 1984) (petition circulation);

Clean-Up ’84 v. Heinrich, 582 F. Supp. 125, 127 (M.D.

Fla. 1984) (petition circulation).

Because Florida’s laws regulating petition

circulation and exit polling were constitutionally

infirm, Florida revised its laws so that, between 1989

and 2005, Florida permitted such activity within

certain areas near polling places. E.g., Fla. Stat. §

102.031 (1990). As a result, from 1989 to 2005,

Florida’s polling place laws were not challenged in

court.

In 2005, the Florida Legislature enacted a new

statute that prohibited petition circulating and exit

polling, among others things, within a 100-foot zone

around polling place entrances. 2005 Fla. Laws

Chap. 2005-277 § 54 (codified at Fla. Stat. §

102.031(4)(a)-(b) (2006)). In 2006, a consortium of

media entities successfully challenged that statute as

applied to media exit polling, and the United States

District Court for the Southern District of Florida

enjoined its enforcement. CBS Broad., Inc. v. Cobb,

470 F. Supp. 2d 1365, 1366 (S.D. Fla. 2006). The

State did not appeal that ruling. In 2008, the Florida

Legislature amended the statute to permit exit

polling. 2008 Fla. Laws Chap. 2008-95 § 25 (codified

at Fla. Stat. § 102.031(4)(a)-(b) (2008)). The statute

enacted in 2008 (the “Challenged Law”) provides no

definition of “exit polling” and permits anyone, not

just the media, to engage in “exit polling.” (App. at

24a.)

With the exception of “exit polling,” however,

the Challenged Law forbids the solicitation of voters

within 100 feet of Florida polling places and early

voting sites (the “No Approach Zone”). See Fla. Stat.

§ 102.031(4)(a). The Challenged Law defines “solic-

itation” to include various types of speech directed at

voters, including “seeking or attempting to seek a

signature [from a voter] on any petition.” Id. §

102.031(4)(b).

Petitioners’ First Amendment Speech

Petitioners are the advocates for and circu-

lators of a petition seeking an amendment to the Fort

Myers, Florida, City Charter. (R 1:2, 5.)! The

proposed amendment’s purpose was to create a

citizens’ oversight panel for the City’s police

department. (App. at 20a.) Petitioner CPAPC began

circulating the petition in August 2007. (/d.)

Because of the high concentration of registered

voters at polling places, CPAPC sought to gather

signatures at polling places during the Presidential

Preference Primary held on January 29, 2008. (R

1:5.) CPAPC’s efforts were stymied, however, because

instead of being able to discuss their petition with

' The Record will be cited as “(R#:Pg#.).”

voters, CPAPC petition circulators could only watch

as voters parked their cars within the No Approach

Zone, entered the polling places, and returned to their

cars. (Id. at 5-6.)

In April 2008, the Florida NAACP joined

CPAPC in circulating the petition. (/d. at 6.) Despite

their combined efforts, by summer 2008 Petitioners

had not obtained the required number of signatures

from the City’s registered voters. (/d.)

The District Court Proceedings

On August 11, 2008, pursuant to 42 U.S.C. §

1983 (2006), and in anticipation of the August 26,

2008 primary election, Petitioners filed in the United

States District Court for the Middle District of

Florida a Verified Complaint and Motion for

Preliminary Injunction supported by affidavits and

attached exhibits. (R 1,2.) For purposes of this

Petition for Writ of Certiorari, Petitioners’ most

important claims were for a declaration that the

Challenged Law was unconstitutional as applied to

Petitioners’ efforts to obtain signatures from exiting

voters and for an injunction against enforcement of

the Challenged Law. (R 1:10-12.) Respondents filed

a response to the Motion, including affidavits (R 11),

and the district court heard oral argument on August

21, 2008. On August 22, the district court issued an

Opinion and Order as well as a _ Preliminary

Injunction prohibiting enforcement of the Challenged

Law against Petitioners’ exit petitioning during the

August 26, 2008 primary election. (App. at 19a-44a.)

Petitioners’ Evidence in the District Court

In the district court, Petitioners presented a

variety of statistical, geographic, and affidavit

evidence demonstrating that polling places are the

best location to gather petition signatures, that the

Challenged Law severely burdened Petitioners’

efforts to gather petition signatures, and that petition

circulation had not caused voter intimidation, fraud,

or any other electoral abuses near Florida’s polling

places.

Petitioners presented three different sets of

statistical evidence, all of which were gathered during

the period when Florida permitted petition circu-

lation and other types of speech within the No

Approach Zone. The first set of statistics showed an

increase in voter participation from the 2000 to the

2004 presidential elections both statewide and in Lee

County, where Fort Myers is located. (R 2-3:1-2.)

The second set contained a review of more than 5,000

complaints logged in the Election Incident Reporting

System from Florida voters during the 2004

presidential election, none of which involved petition

circulation, even though petition circulation was

permitted near Florida polling places at that time.

(Id. at 2-3.)

The third set of statistics contained a survey

conducted during the 2004 presidential election

regarding voters’ experiences in Florida. (/d.) No

voters mentioned petition circulation as a problem

near polling places. (/d.)

Petitioners also provided the district court with

the results of a public records request to Supervisor

Harrington for “[ajll voter complaints regarding

activity outside the polling places in Lee County,

Florida, including, but not limited to exit polling,

petition circulation, and other forms of solicitation,

from January 1, 2000 to the present.” (Jd. at 4.)

Supervisor Harrington’s response provided only one

e-mail string, and that e-mail string did not relate to

petition circulation. (Jd.) In other words, for more

than eight years, including during a period of more

than four years when petition circulation was

permitted, there were no public records of complaints

in Lee County regarding petition circulation at

polling places.

Petitioners further submitted to the district

court maps of three polling places in Fort Myers

showing that the No Approach Zones not only

encompassed many parking places, but also included

public sidewalks and public roads. (Jd. at 4-5.)

Finally, Petitioners provided the district court

with the declaration of Dr. Matthew Corrigan, a

professor and department head from the University of

North Florida Department of Political Science and

Public Administration, which concluded that polling

places were the best place for petition circulation

based upon three findings. (R 2-2:1-2.) First, only

registered voters from Fort Myers may vote in polling

places within the City, and those voters are the same

people needed to sign a petition to amend the Fort

Myers City Charter. See Fla. Stat. § 166.031(1)

(2008). Second, citizens who are politically active in

their community, including those who vote, are twice

as likely to sign a petition as those who are not

politically active. (R 2-2:2.) Third, as with exit

polling, the greater the distance from a polling place

that petition circulators are made to stand, the less

likely they are to be successful. (/d. at 3.)

Respondent's Evidence in the District Court

In contrast to Petitioners’ evidence, Respond-

ents provided only anecdotal affidavit evidence. (R

11:16.) Supervisor Harrington proffered her own

affidavit, which had attached to it a 2006 affidavit of

then Supervisor Browning.? (R 11-2.) Supervisor

Harrington stated that in her experience, “any

diminution of th[e] 100 foot protection will disrupt

voters, cause increased dissatisfaction with the voting

process, and suppress voter turnout.” (R 11-2:3.)

Secretary Browning’s affidavit reached a similar

conclusion. (Jd. at 7.) Both affidavits discussed

Respondents’ beliefs regarding the “cumulative effect”

of activity outside of polling places and the effect on

voters having to “run the gauntlet.” (Jd. at 2, 7.)

Neither affidavit identified any specific voters who

had complained or specific problems that had

occurred at any polling place. Nor was either affi-

davit supported by any documentary evidence.

The District Court Grants the Preliminary Injunction

Because the Challenged Law is a content-based

restriction on First Amendment rights — i.e, a

2 The 2006 affidavit originally had been offered by then

Supervisor Browning in a lawsuit over the predecessor to the

Challenged Law, CBS Broadcasting, Inc. v. Cobb, 470 F. Supp.

2d 1365 (S.D. Fla. 2006).

restriction on Petitioners’ rights of free speech and

association — the district court looked to this Court’s

plurality opinion in Burson v. Freeman, 504 U.S. 191

(1992), for guidance on how to assess it. Utilizing the

strict scrutiny test employed by the Burson plurality,

the district court first found that the State has a

compelling interest in conducting elections with

integrity and reliability and in protecting voters from

intimidation, confusion, and election fraud. (App. at

26a.) But, the district court concluded, Respondents

did not show that the Challenged Law satisfied either

of the other strict scrutiny requirements. (/d. at 35a.)

Specifically, the district court explained that

there was ample historical evidence of electoral

abuses caused by candidates and campaign workers

seeking to influence the outcome of elections. (/d.)

But,

[t]he evidence submitted by the parties

in this case .. . fails to establish electoral

abuses perpetrated by other exit solic-

itors or exit polling. Therefore, at this

stage of the proceedings, there has not

been a sufficient showing that the re-

striction on exit petitioning is necessary.

Ud.) The district court also found that, because of the

nature of Petitioners’ speech — peaceful, orderly, non-

disruptive, and directed only at exiting voters — the

Challenged Law was not narrowly tailored. (Jd. at

36a.)

Based upon these findings, the district court

issued the _ preliminary injunction prohibiting

enforcement of the Challenged Law against

12

Petitioners’ exit petitioning at polling places in Lee

County on August 26, 2008.3 Respondents appealed.‘

The Eleventh Circuit Reverses

The Eleventh Circuit reversed the district

court’s preliminary injunction. (App. at 3a.) After

discussing the Burson decision and noting that,

because of factual differences, Burson did not bind it,

the Eleventh Circuit undertook the three-pronged

strict scrutiny analysis. (App. at 7a-17a.) The

appellate court found that the State’s compelling

interest was the same as in Burson: “(1) protecting

voters from confusion and undue influence; and (2)

preserving the integrity of the election process.”

(App. at lla.) In contrast with the district court,

however, the Eleventh Circuit did not consider the

evidence presented in the lower court in evaluating

the necessity requirement.® Instead, it rejected

4% The district court also found that Petitioners had satisfied the

other requirements for granting a preliminary injunction.

4 After circulating their petition on August 26, 2008, Petitioners

gathered the necessary number of signatures to place their issue

on the ballot. As a result, the district court, on December 1,

2008, found that there was no live case or controversy pending

and dismissed the case as moot. (R 39:2.) The Eleventh Circuit

found on appeal that the case was not moot because it was

capable of repetition, yet evading review. (App. at 5a-6a n.5.)

5 The Eleventh Circuit did not rule that the district court's

findings of fact were clearly erroneous; therefore, those findings

of fact stood on appeal. Nevertheless, the Eleventh Circuit

accepted the State’s evidence regarding the effect on some voters

(continued on the following page)

the contention that the State must offer

its own evidence demonstrating that the

ban on exit solicitation is necessary to

serve its compelling interest; our

country’s long history of election regu-

lation, the consensus emerging from that

history, and the practical need to keep

voters and voting undisturbed all prove

that the ban is warranted.

(App. at 16a. (emphasis added).) On the final prong

of the strict scrutiny test, the Eleventh Circuit, unlike

the district court, found that the Challenged Law was

reasonable and did not significantly impinge on

constitutionally protected rights. (App. at 16a-17a.)

As a result, the Eleventh Circuit reversed the district

court. (App. at 18a.)

WHY THE WRIT SHOULD BE GRANTED

This case concerns the State of Florida’s effort

to ban core political speech in the form of petition

circulation, and the question of whether such a ban

can be upheld in the absence of historical or record

evidence that it is necessary to serve a compelling

State interest. More fundamentally, it concerns the

interplay between vital First Amendment rights and

the State’s right to regulate elections. See, e.g., Eu v.

San Francisco Cty. Democratic Cent. Comm., 489 U.S.

214, 222 (1989) (explaining that the State’s interest

in regulating elections “does not extinguish the

of having to “run the gauntlet,” but made no mention of the

evidence presented by Petitioners. (App. at 15a n.14.)

14

State’s responsibility to observe the limits established

by the First Amendment rights of the State’s

citizens”) (quoting Tashjian v. Republican Party of

Conn., 479 U.S. 208, 217 (1986)).

Petition circulation is a form of core political

speech in which First Amendment protections un-

doubtedly are at their “zenith.” Buckley v. Amer.

Constitutional Law Found., Inc., 525 U.S. 182, 186-87

(1999); Meyer v. Grant, 486 U.S. 414, 421-22, 425

(1988). It has been an important form of direct,

grassroots democracy for more than a century, pre-

dating women’s suffrage, presidential term limits, the

federal income tax, and social security. John G.

Matsusaka, For the Many or the Few 1 (2004).

Despite these facts, the Eleventh Circuit's

opinion treats petition circulation as a second-class

right. Indeed, the first sentence of the Eleventh

Circuit’s opinion — “This appeal is about voting”

fails even to acknowledge that any form of political

expression other than voting itself is at issue in this

case. (See App. at 2a.) In reality, this case is about

much more than voting; it is about the proper

equilibrium between the fundamental right to vote

and the fundamental rights of free speech and

association involved in petition circulation.

As a result, this case presents the Court with

an ideal opportunity to articulate the correct balance

between these fundamental constitutional rights. As

discussed in greater detail below, in the 17 years

since this Court’s plurality decision in Burson uv.

Freeman, federal and state courts have struggled to

find this balance, often taking incompatible

approaches to resolving the tension between the

exercise of free speech nghts near polling places and

the State’s right to regulate elections. “The principal

purpose of this Court’s exercise of its certiorari

jurisdiction is to clarify the law.” Caperton v. A.T.

Massey Coal Co., Inc., 129 S. Ct. 2252, 2274 (2009)

(Scalia, J., dissenting) (citing Supreme Court Rule

10). By granting the writ, the Court can do just that.

The writ also should be granted because the

Eleventh Circuit’s opinion erroneously establishes a

new standard under which “exit polling” is entitled to

greater First Amendment protection than other

equally important political speech. By granting the

writ, the Court can rectify this error.

5 The Writ Should Be Granted so that the

Court May Resolve Uncertainty About the

Exercise of First Amendment Rights near

Polling Places.

Here, Petitioners attempted to seek petition

signatures outside of Florida polling places only from

exiting voters and only on an issue that was not on

the ballot. (App. at 36a.) In other words, Petitioners

did not seek to speak to voters before they voted, and

did not seek to influence votes or the outcome of the

present election. The evidence in support of these

facts was uncontradicted.

Moreover, as the record below made clear,

polling places are the best locations to seek petition

signatures because of the high concentration of

16

registered, politically active voters.® (R 2-2:2-4.) The

Challenged Law has effectively cordoned off petition

circulators from this crucial location and, in so doing,

has diminished the likelihood that petition circulators

will gather the requisite number of signatures

necessary to place their initiative proposals on state

or local ballots. Cf. Buckley, 525 U.S. at 210-11

(Thomas, J., concurring) (citing Meyer, 486 U.S. at

422-23) (reducing the audience that petition circu-

lators might reach “made it less likely that initiative

proposals would garner the signatures necessary to

qualify for the ballot”).

Despite these facts, the Eleventh Circuit

upheld the Challenged Law and improperly extended

this Court’s plurality holding in Burson v. Freeman,

504 U.S. 191 (1992). In Burson, a campaign worker

brought a facial challenge to Tennessee’s ban on

solicitation of votes within 100 feet of polling places.

504 U.S. at 193-94. Specifically, the Tennessee

statute created a 100-foot “campaign-free zone” that

excluded “campaign posters, signs or other campaign

materials, distribution of campaign materials, and

solicitation of votes for or against any person or

political party or position.” /d. Because of the

narrow scope of the Tennessee statute, Burson

addressed a limited question — whether the statute,

“which pro-hibitled] the solicitation of votes and the

display or distribution of campaign materials within

® To be placed on the ballot, petitions must be “signed by 10

percent of the registered electors as of the last preceding

municipal general election.” Fla. Stat. § 166.031(1) (2008)

100 feet of the entrance to a polling place, violate([d]

the First and Fourteenth Amendments.” /d. at 193.

Based upon an historical record of election

abuses caused by candidates and their campaign

workers, and considering only a facial constitutional

challenge to the Tennessee statute, the Burson

plurality held that a state could, consistent with the

First Amendment, prohibit the display and

distribution of campaign material within 100 feet of a

polling place on election day. /d. at 211. But the

Burson plurality left open the question of whether

other types of speech could be prohibited near polling

places consistent with the Constitution.’ The Burson

plurality also left open the possibility of a successful

as-applied challenge to the Tennessee statute. /d. at

210 n.13.

Because of Burson’s narrow focus on speech by

candidates and their campaign workers, it has proven

difficult for courts to apply consistently in cases

involving restrictions on other types of polling place

speech.

For example, in petition circulation cases

involving both entering and exiting voters, some

Indeed, the Tennessee statute at issue in Burson actually

permitted the very same First Amendment speech barred by

Florida's Challenged Law — .e., the circulation of petitions for

the placement of an issue on a future ballot. See Brief of

Respondent at 11, Burson v. Freeman, 504 U.S. 191 (1992) (No

90-1056), 1991 WL 533556. See also Burson, 504 U.S. at 223

(Stevens, J., dissenting) (noting that Tennessee's statute did not

prohibit “political debate and solicitation concerning issues or

candidates not on the day's ballot”)

courts have taken a broad view of Burson. These

cases seem to be based on the unspoken assumption

that petition circulators are the First Amendment

equivalents of the candidates and campaign workers

prohibited from seeking votes near polling places in

Burson. In United Food & Commercial Workers Local

1099 v. City of Sidney, 364 F.3d 738 (6th Cir. 2004),

for instance, the court engaged in a cursory, one-

paragraph analysis of Burson and, based upon that

analysis, concluded that because Burson upheld a ban

on the distribution of campaign material seeking

votes, it necessarily followed that “a state may

require persons soliciting signatures to stand 100 feet

from the entrances to polling places without running

afoul of the constitution.” Jd. at 748 (emphasis

added). In Burson, the plurality found that the

state’s prohibition on campaigning within the 100-

foot zone was based upon “ample evidence that

political candidates have used campaign workers to

commit voter intimidation or electoral fraud.” Id.

(plurality). The United Food court, by contrast, cited

no evidence that petition circulators have had any

impact on elections.

Likewise, in Schirmer v. Edwards, 2 F.3d 117

(5th Cir. 1993), the court upheld Louisiana’s ban on

petition solicitation and other speech within 600 feet

of polling places, based upon evidence that campaigns

had hired poll workers to “inundate” voters with

campaign material near polling places, and that these

efforts had had a negative impact on the election

process. /d. at 121. Rather than requiring evidence

that petition circulators had interfered with elections,

the Schirmer court accepted the State’s argument

19

that candidates and their workers might pose as non-

ballot political speakers in order to reach voters

within the 600-foot zone. Jd. at 123. The Schirmer

court agreed with the State that it should not have to

police the authenticity of purported non-ballot

speakers, but instead could simply ban all political

speech near polling places. Jd.®

Neither United Food nor Schirmer, however,

examined the important issue raised by this case:

whether petition circulation limited to exiting voters

can be constitutionally prohibited. | Moreover, the

Eleventh Circuit’s opinion is in conflict with a series

of decisions about speaking to exiting voters.

After Burson, courts that have addressed

prohibitions on speech to exiting voters have

repeatedly found such prohibitions unconstitutional

because there is no historical or record evidence

demonstrating a negative impact on elections from

post-voting speech. See, e.g., Amer. Broad. Co. uv.

Ritchie, No. 08-5285, 2008 WL 4635377, at *6 (D.

Minn. Oct. 15, 2008) (explaining that the State had

presented no evidence that questioning voters after

voting had a detrimental effect on voting); Amer.

Broad. Co. v. Heller, No. 2:06-CV-01268-PMP-RJJ,

2006 WL 3149365, at *12 (D. Nev. Nov. 1, 2006)

(finding a lack of evidence that exit polling had

deterred, harassed, or disrupted voters); CBS Broad.,

8 Contrary to the Fifth Circuit, the Louisiana Supreme Court,

relying on Burson, later found the 600-foot campaign-free zone

unconstitutional. See State v. Schirmer, 646 So. 2d 890, 901 (La.

1994).

20

Inc. v. Cobb, 470 F. Supp. 2d 1365, 1370 (S.D. Fla.

2006) (finding it important that “voters are only

approached after they have voted”) (emphasis added);

Amer. Broad. Co. v. Blackwell, 479 F. Supp. 2d 719

(S.D. Ohio 2006) (“By definition, exit polling affects

only those who have already voted.”) (emphasis

added).

One circuit court of appeals has gone even

farther in protecting the media’s right to speak near

polling places. In Beacon Journal Publishing Co. v.

Blackwell, 389 F.3d 683, 685 (6th Cir. 2004), the

court found that the media must have “reasonable

access to any polling place for the purpose of news-

gathering and reporting so long as [they] do not

interfere with poll workers and voters as voters

exercise their right to vote.” The Beacon Journal

court did not limit its holding to exit polling; the state

was required to permit the media to poll voters both

before and after they voted.

Two recent decisions from New Jersey

exemplify the inconsistent approaches courts have

taken to applying Burson. On September 30, 2009,

the New Jersey Supreme Court held that New Jersey

could constitutionally ban exit pollsters from the area

outside polling places. In re: Attorney General’s

“Directive on Exit Polling: Media and Non-partisan

Public Interest Groups,” Issued July 18, 2007, 981

A.2d 64, 80-81 (N.J. 2009). In fact, the court went so

far as to hold that the state could prohibit “all

expressive activity” near polling places. Id. at 82.

After the New Jersey Supreme Court’s deci-

sion, the media challenged the New Jersey statute in

federal court. See Amer. Broad. Co. v. Wells, --- F.

Supp. 2d ---, 2009 WL 3417589 at *1 (D.N.J. Oct. 23,

2009). The district court found that there was “no

evidence on the record that exit pollsters have been

engaged” in any disruptive conduct, and therefore

struck down the ban on_ exit polling § as

unconstitutional. Jd. at *4. The lack of evidence

supporting the ban was not the only reason for

finding the ban on exit polling unconstitutional.

Even more persuasive is the fact that

the exit polling takes place after

individuals vote. Voters are not ap-

proached entering polling places — and it

is conduct affecting voters on their way

to the polls that the government may

have an interest 1n protecting.

Id.

Like the divergent views taken by the two New

Jersey courts, the Eleventh Circuit’s opinion — which

failed to take account of the timing of Petitioners’

speech — is diametrically opposed to the holding of the

District Court for the Southern District of Florida in

CBS Broadcasting, Inc. v. Cobb. The two cases in-

volved nearly identical statutes and nearly identical

facts. The difference between the cases was simply

that one involved media exit polling and the other

involved exit petitioning. The Cobb court weighed the

evidence, considered the speech at issue, and found

Florida’s ban on solicitation of voters unconstitutional

as applied to media exit pollsters because it was not

necessary or narrowly tailored. 470 F. Supp. 2d at

1371-72. Here, instead of looking at the evidence

proffered by the parties, the Eleventh Circuit ignored

the evidence submitted by Petitioners (and accepted

22

by the district court), and instead equated petition

circulators with the ballot candidates whose speech

could be restricted under Burson. (App. at 13a.) The

Eleventh Circuit failed to pay heed to the fact that

speech directed only toward exiting voters does not

implicate the State’s interest in preventing voter

fraud or intimidation.

In conjunction with the two recent New Jersey

decisions, the Eleventh Circuit’s opinion both

demonstrates the lower courts’ confusion in applying

Burson and raises numerous questions. Does the

decision on whether speech can be banned near

polling places depend upon the identity of the speaker

(i.e., whether the speaker is a member of the media)?

Does it depend on the timing of the speech (i.e.,

whether the speech occurs before or after voting)?

Does it matter whether any historical or record

evidence demonstrates that a particular type of

speech has misled voters or interfered with elections?

Despite all relying upon Burson, the courts offer

conflicting answers to these critical questions.®

This case is in many respects a hybrid of the

exit polling and petition circulation cases decided

since Burson. Like the petition circulation cases, this

case plainly concerns political speech near polling

places; but, like the exit polling cases, this case

concerns only post-voting interaction with voters.

And, critically, the record evidence in this case is that

8 This is due in large measure to the narrow focus of the Burson

decision. Indeed, as the Eleventh Circuit noted in its opinion,

“Burson does not bind us here.” (App. at 11a.)

23

petition circulators in Florida have not caused any

electoral abuses. (App. at 35a.) As a result, this case

presents an ideal opportunity for this Court not only

to examine and articulate the proper balance between

the State’s right to regulate elections and the

citizenry’s right to engage in grassroots democracy,

but also to provide much needed guidance to the

lower courts on the meaning of Burson with respect to

this unsettled area of constitutional jurisprudence.

2. The Writ Should Be Granted Because the

Eleventh Circuit’s Opinion Erroneously

Establishes a Standard Under Which

“Exit Polling” Is Entitled to Greater First

Amendment Protection than Other Exit

Speech.

The Challenged Law prohibits individuals from

seeking petition signatures near polling places, but

expressly permits “exit polling.” See Fla. Stat. §

102.031(4)(b) (“The terms ‘solicit’ or ‘solicitation’ shall

not be construed to prohibit exit polling.”). Critically,

the Challenged Law neither defines the topics that

may be addressed by an exit pollster nor requires

that exit polling be conducted by members of the

press. (App. at 24a.) Similarly, the Challenged Law

does not limit the number of persons who may engage

in exit polling at a particular polling place. Thus,

under the Challenged Law itself, any number of

persons may enter the No Approach Zone and poll

exiting voters about any topic.

This means that a person (whether a member

of the press, an average citizen, or even a political

candidate) can ask an exiting voter his name, his

24

address, what candidate he just voted for, why he

voted that way, his political party, religion, marital

status, employment position, and his view on any

number of politically and _ socially contentious

subjects, among many other things. The pollster

could even ask whether the exiting voter supports an

amendment to the Fort Myers City Charter

establishing a police oversight panel (the very same

question that Petitioners are barred from asking

under the Eleventh Circuit’s opinion). And the

person conducting the poll could ask the interviewee

to sign a form attesting to the accuracy of the

information just provided. None of this is prohibited

by the Challenged Law.

Nor is exit polling by political candidates

prohibited, so that candidates and their campaigns

may approach exiting voters and engage in so-called

push polling, in which the pollster asks a question in

a way intended to influence or alter the view (and

future vote) of the person questioned.!° The Eleventh

Circuit’s opinion is simply wrong, then, in attempting

to distinguish exit polling from exit petitioning on the

grounds that “exit polling does not include advocating

for the success of some political proposal or

candidate.” (App. at 12a n. 11 (emphasis added).)

10 See, e.g., Caperton v. A.T. Massey Coal, Inc., 679 S.E.2d 223,

292 n.11 (W. Va. 2008) (Albright, J., dissenting) (a push poll is “a

survey wherein limited and selective background information is

conveyed to individuals, the purpose or result of which is to

‘push’ the individual being surveyed to a negative inference or

response against a public individual”), reud on other grounds,

129 S. Ct. 2252 (2009).

Because there is no constitutionally mean-

ingful difference between the exit polling permitted

and the exit petitioning prohibited by the Challenged

Law, the Eleventh Circuit’s opinion is contrary to

well-settled law. See, e.g., Turner Broad. Sys., Inc. v.

FCC, 512 U.S. 622, 642 (1994) (“Our precedents thus

apply the most exacting scrutiny to regulations that

suppress, disadvantage, or impose differential

burdens upon speech because of its content.”); Carey

v. Brown, 447 U.S. 455, 466 (1980) (rejecting the

proposition that labor picketing is more deserving of

First Amendment protection than other types of

protests).

The opinion also improperly re-defines the

compelling state interest endorsed by Burson.

Although the Eleventh Circuit’s opinion identified

Florida’s interest as the same interest enunciated in

Burson — “(1) protecting voters from confusion and

undue influence; and (2) preserving the integrity of

the election process” — it is actually grounded not in

these interests but in preventing “commotion — that

is, bustle, stir, confusion — around the polling place”

(App. at 2a) and keeping voters from having to “run

the gauntlet” (App. at 14a). The State’s interest in

shielding voters from mere interaction with other

citizens is not a compelling state interest. See

Anderson v. Spear, 356 F.3d 651, 661 (6th Cir. 2004)

(protecting voters from being spoken to “is a far cry

from prevention of corruption and intimidation — the

only justification the Supreme Court recognized in

Burson to meet the requirements of exacting

scrutiny’).

26

Indeed,

fijf the right to be let alone provides

insufficient basis for the states to

restrict the display of profanity in the

courtroom or Nazis marching down

residential streets occupied by objecting

holocaust survivors, then the State’s

interest in assuring that voters are not

subjected to any unwanted campaign

speech alone cannot be a sufficient basis

to regulate that clearly protected speech.

Id. at 661. See also U.S. v. Playboy Entm't Group,

Inc., 529 U.S. 803, 813 (2000) (under the First

Amendment, the right of free expression prevails over

a law designed to “shield the sensibilities of

listeners”); Fla. Comm., 682 F. Supp. at 1542 (“[I]f the

quality of the state interest is merely the offense

suffered by a voter who approaches the polis only to

be approached by a petitioner, this bnef exposure to

grassroots democratic process, however unpalatable

to some individuals, cannot justify a restriction on

speech when the offensive activity can be avoided

readily by communicating a declination of interest to

the petitioner.”) (citing Cohen v. California, 403 U.S.

15, 21-22 (1971)). The apparent desire of the

Eleventh Circuit to keep everyone other than voters

from approaching polling places is also contrary to

Burson itself, which explains that “allowing members

of the general public access to the polling place makes

it more difficult for political machines to buy off all

Zi

the monitors.” 504 U.S. at 207.'! Thus, paradox-

ically, under the guise of protecting the democratic

process, the Challenged Law and the Eleventh

Circuit’s opinion seek to protect the Florida public

from democracy itself.

By granting the writ, this Court can correct the

erroneous standard adopted by the Eleventh Circuit,

and ensure that arbitrary categories of speech are not

favored under the First Amendment based merely on

the labels that are attached to them.

CONCLUSION

This case epitomizes the contradictory ap-

proaches courts have taken in applying Burson to

speech by non-candidates near polling places. By

granting the writ, this Court can provide guidance to

the lower courts on the proper balance between

competing constitutional rights at the heart of our

democratic system.

'! Moreover, the desire to keep people away from polling places

is not achieved by the Challenged Law, which bans from the

polling area only a limited class of people, such as petition

circulators, but permits anyone to be within the No Approach

Zone so long as they do not “solicit” voters.

28

Respectfully submitted,

Gregg D. Thomas

Counsel of Record

James J. McGuire

Paul R. McAdoo

THOMAS, LOCICERO & BRALOW

400 N. Ashley Dr., Suite 1100

Tampa, Florida 33602

(813) 984-3060

Randall C. Marshall

Muslima Lewis

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION OF

FLORIDA, INC.

4500 Biscayne Blvd., Suite 340

Miami, Florida 33137

(786) 363-2700

Counsel for Petitioners

29

APPENDIX

[PUBLISH]

FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JUNE 25, 2009

THOMAS K. KAHN

CLERK

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No.08-15115-DD

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

CITIZENS FOR POLICE ACCOUNTABILITY

POLITICAL COMMITTEE, FLORIDA STATE

CONFERENCE OF THE NATIONAL

ASSOCIATION FOR THE ADVANCEMENT

OF COLORED PEOPLE,

Plaintiffs-Appellees,

versus

KURT S. BROWNING, in his capacity as

Secretary of State of the State of Florida,

SHARON L. HARRINGTON, in her official

capacity as Supervisor of Elections, Lee

County,

Defendants-Appellants.

Appeal from the United States District Court

for the Middle District of Florida

(June 25, 2009)

Before DUBINA, Chief Judge, EDMONDSON and

HILL, Circuit Judges.

PER CURIAM:

This appeal is about voting. Florida Statute §

102.031(4) says that no person may solicit voters

“within 100 feet of the entrance to any polling place

... or early voting site,” and broadly defines “solicit” to

include, among other things, “seeking or attempting

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

102.031(4)(a)-(b).! The Florida statute codifies the

Florida legislature’s view that the right of Florida’s

citizens to vote warrants substantial protection from

commotion -- that is, bustle, stir, confusion -- around

the voting place. Today, we must decide whether the

Florida legislature went too far in defending the right

1 The Florida statute defines “solicit” and “solicitation” to

“include, but not be limited to, seeking or attempting to seek

any vote, fact, opinion, or contribution; distributing or

attempting to distribute any political or campaign material,

leaflet, or handout; conducting a poll except as specified in this

paragraph; seeking or attempting to seek a signature on any

petition; and selling or attempting to sell any item. The terms

‘solicit’ or ‘solicitation’ shall not be construed to prohibit exit

polling.” Fla. Stat. § 102.031(4)(b).

2a

to vote by banning solicitation that targets voters

exiting polling places? and that also concerns matters

unrelated to any issue then on the ballot. We

conclude that the Florida legislature did not go

beyond its lawful power and, thus, reverse the district

court’s decision to bar enforcement of the Florida

Statute.

Background

Plaintiff Citizens for Police Accountability

Political Committee is a political action committee in

the State of Florida. Plaintiff Flomda State

Conference of the NAACP is the parent organization

of 60 Florida branches of the national NAACP.

Plaintiffs support an amendment to the Fort Myers,

Florida, city charter that would create a citizen

oversight panel for the city police department. To

place the charter amendment on a ballot, though,

Plaintiffs must gather signatures from “10 percent of

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

municipal general election.” Fla. Stat. § 166.031(1).

Plaintiffs claim that the best way to obtain signatures

is to approach voters exiting polling places.

In January 2008, Plaintiff Citizens for Police

Accountability Political Committee tried to solicit

signatures from voters leaving a polling place in Fort

Myers.? Although the proposed charter amendment

2 When we refer to polling places in this opinion, we also mean

early voting sites.

4 Plaintiff Florida State Conference of the NAACP did not join

the petition-circulation effort until April 2008.

3a

related to nothing then on the ballot, election

officials, in accordance with the Florida statute,

banned the signature-gatherers from soliciting voters

within 100 feet of the polling place. Plaintiffs say that

many voters were able to park, vote, and leave

without interacting with the signature-gatherers.

Then in August 2008, Plaintiffs filed suit and

sought injunctive relief under 42 U.S.C. § 1983

against Kurt S. Browning, in his capacity as

Secretary of State of the State of Florida, and Sharon

L. Harrington, in her capacity as Supervisor of

Elections in Lee County, Florida (collectively, the

State). Plaintiffs claimed that the Florida statute

violated their First Amendment right to engage in

political speech at polling places. Plaintiffs asked the

district court to declare the Florida _ statute

unconstitutional on its face and as it applied to their

exit-solicitation efforts. Plaintiffs also sought to

enjoin the State from enforcing the Florida statute

against them when they solicited voters leaving

polling places on election day later in August. As with

the January election, the proposed’ charter

amendment related to nothing on the ballot in the

August election.

The district court held oral argument just

before the August election. The next day, the district

court entered a preliminary injunction enjoining the

State from enforcing the Florida statute against

Plaintiffs at polling places on election day.4 The

4 The district court refused to issue an injunction on the ground

that the Florida statute is facially unconstitutional. The district

court, instead, granted the injunction on an “as applied” basis:

(continued ...)

4a

district court concluded that the Florida statute was

probably unconstitutional as it applied to Plaintiffs’

exit-solicitation efforts because the State had

produced little evidence that the exit-solicitation ban

was ne essary to serve a compelling interest or that it

was sufficiently drawn to achieve that end. The State

appeals.®

(... continued)

the State -- even extremely close to the polls -- could not enforce

or threaten to enforce the Florida statute “as to Plaintiffs’

peaceful, orderly and non-disruptive (1) solicitation of signatures

(2) for their petition to place an amendment of the Fort Myers

City Charter on a future ballot (3) from voters at polling places

and early voting sites (4) after the voters have voted (5) during

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

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

controversy before it and, thus, dismissed the case after

Plaintiffs alleged that they acquired the requisite number of

signatures to place the proposed charter amendment on a ballot.

No party has argued, however, that this appeal is moot or that

we otherwise lack jurisdiction. We have considered the matter of

our jurisdiction independently, and we conclude that this appeal

remains worthy of our attention because the election-related

issue involving the State and, at least, Plaintiff Florida State

Conference of the NAACP -- the issue of the right to engage in

peaceful exit solicitation about non-ballot issues near polling

places -- is “capable of repetition, yet evading review.” Sierra

Club v. Martin, 110 F.3d 1551, 1554 (llth Cir. 1997)

(preliminary injunction expired but appeal not moot where

seasonal nature of bird nesting made it likely that forest service

would face another injunction and where duration of injunction

was too short to allow for appellate review before injunction

expired); see also Fed. Election Comm'n v. Wis. Right To Life,

Inc., 127 S. Ct. 2652, 2663 (2007) (“We have recognized that the

‘capable of repetition, yet evading review’ doctrine, in the

context of election cases, is appropriate when there are ‘as

applied’ challenges as well as in the more typical case involving

(continued ...)

Sa

Standard of Review

We review a preliminary injunction for an

abuse of discretion. Klay v. United Healthgroup, Inc.,

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

abuses its discretion if it applies an incorrect legal

standard, applies the law in an unreasonable or

incorrect manner, follows improper procedures in

making a determination, or makes findings of fact

that are clearly erroneous. /ld. We review de novo

questions of law. United States v. Endotec, Inc., 563

F.3d 1187, 1194 (11th Cir. 2009).

Discussion

A preliminary injunction is an “extraordinary

and drastic remedy.” McDonald's Corp. v. Robertson,

147 F.3d 1301, 1306 (11th Cir. 1998) (quoting All

Care Nursing Serv., Inc. v. Bethesda Mem Hosp.,

Inc., 887 F.2d 1535, 1537 (11th Cir. 1989)). To secure

an injunction, a party must prove four elements: (1) a

(... continued)

only facial attacks. Requiring repetition of every ‘legally

relevant’ characteristic of an as-applied challenge-down to the

last detail-would effectively overrule this statement by making

this exception unavailable for virtually all as-applied

challenges.”) (internal quotation marks and citation omitted);

Storer v. Brown, 94 S. Ct. 1274, 1282 n.8 (1974) (although

pertinent election was “long over,” appeal concerning election-

related statute not moot because “construction of the statute, an

understanding of its operation, and possible constitutional! limits

on its application, will have the effect of simplifying future

challenges, thus increasing the likelihood that timely filed cases

can be adjudicated before an election is held”).

6a

substantial likelihood of success on the merits; (2)

irreparable injury absent an injunction; (3) the injury

outweighs whatever damage an injunction may cause

the opposing party; and (4) an injunction is not

adverse to the public interest. Id.

The State challenges on appeal only the

district court’s conclusion that Plaintiffs established a

substantial likelihood of success on the merits of their

claim that the Florida statute is unconstitutional as it

applies to exit-solicitation efforts. The State admits

that the Florida statute infringes some on Plaintiffs’

right to engage in political speech® (see Meyer uv.

Grant, 108 S. Ct. 1886, 1892 (1988)) but contends

that the restriction is necessary and narrowly

tailored to protect the, at least, equally critical right

to vote free from intimidation, interference, and

fraud.

In Burson v. Freeman, 112 S. Ct. 1846 (1992),

the Supreme Court addressed the facial

constitutionality of a Tennessee statute that

proscribed campaign activity within 100 feet of a

polling place.’ Jd. at 1848. Considering the Tennessee

6 Plaintiffs contend that the Florida statute also infringes some

on their First Amendment right to engage in political

association. But even if true, the additional infringement has no

material affect on the analysis otherwise applicable here; so we

discuss it no further.

7 The Tennessee statute banned within 100 feet of a polling

place “the display of campaign posters, signs or other campaign

materials, distribution of campaign materials, and solicitation of

votes for or against any person or political party or position on a

question|.]” Burson, 112 S. Ct. at 1848. Like the Florida statute,

which saves exit polling from its grasp, Fla. Stat. §

(continued ...)

7a

statute as a content-based restriction on political

speech in a public forum, the statute could survive

only if it was “necessary to serve a compelling state

interest” and was “narrowly drawn to achieve that

end.” Jd. at 1851 (quoting Perry Educ. Ass'n v. Perry

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

The Supreme Court upheld the Tennessee

statute.8 In doing so, a plurality of the Supreme

Court® first reviewed whether Tennessee had a

compelling interest to support its statute. Tennessee

(... continued)

102.031(4)(b), the Tennessee statute also did not restrict exit

polling. Burson, 112 S. Ct. at 1855. We express no view on the

constitutionality of a statute that bans exit polling around

polling places.

8 Justice Blackmun authored the plurality opinion, which Chief

Justice Rehnquist and Justices White and Kennedy joined.

Justice Kennedy also filed a concurring opinion, and Justice

Scalia filed an opinion concurring in the judgment. Justice

Stevens filed a dissenting opinion, which Justices O’Connor and

Souter joined. Justice Thomas did not participate in the

decision.

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

opinion. Justice Scalia reviewed the Tennessee statute under a

less exacting standard than the strict scrutiny applied by the

other Justices because he believed that the statute did not

restrict speech in a “traditional public forum.” Jd. at 1859-61

(Scalia, J., concurring in judgment). His justification, therefore,

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

the plurality opinion for guidance. Marks v. United States, 97 S.

Ct. 990, 994 (1977) (‘When a fragmented Court decides a case

and no single rationale explaining the result enjoys the assent of

five Justices, the holding of the Court may be viewed as that

position taken by those Members who concurred in the

judgments on the narrowest grounds.”) (internal quotation

marks omitted).

$a

offered two: (1) protecting voters from confusion and

undue influence; and (2) preserving the integrity of

the election process. Jd. at 1851—52. The plurality

agreed that those interests were sufficiently

compelling to warrant protection. Id.

The plurality then turned to whether the

Tennessee statute was necessary to serve those

compelling interests. In typical cases involving strict-

scrutiny review, the Supreme Court would look to the

state to offer evidence that the pertinent statute is

necessary to promote the compelling interest. See Eu

v. San Francisco County Democratic Cent. Comm.,

109 S. Ct. 1013, 1021—23 (1989). But in Burson, the

plurality required Tennessee to produce no evidence

of necessity. Burson, 112 S. Ct. at 1856. Instead, the

plurality relied on the long history of regulation to

combat election misconduct, the substantial

consensus in favor of a secret ballot secured by a

campaign-free zone that emerged from that history,

and common sense to conclude “that some restricted

zone around the voting area” was necessary to secure

Tennessee’s compelling interests. Jd. (emphasis in

original).

The plurality last examined whether the

Tennessee statute was narrowly tailored. To pass this

test, a state normally must show that the pertinent

statute used the least restrictive means available to

serve the compelling interest. See Boos v. Barry, 108

S. Ct. 1157, 1168 (1988). The plurality recognized,

however, that it faced a unique situation because of

the importance of protecting the right to vote and the

difficulties in and dangers of requiring Tennessee to

demonstrate the effects of its statute on political

9a

stability.!° Burson, 112 S. Ct. at 10 1856—57. So the

plurality departed from the customary analysis and

applied a modified “burden of proof” under which the

Tennessee statute was sufficiently tailored if it was

“reasonable” and did not “significantly impinge on

constitutionally protected rights.” Jd. at 1857

(emphasis in original). The plurality concluded that

the minor geographic limitation in the Tennessee

statute -- 100 feet -- satisfied this more lenient

standard. Jd. The statute was constitutional.

The parties dispute the extent to which Burson

affects this case. The State says that the Florida

statute is no different than the Tennessee statute in

Burson and, thus, the Florida statute should survive

for the same reasons. Plaintiffs, on the other hand,

claim that the facts in Burson are materially different

10 The plurality explained those difficulties and dangers this

way:

Elections vary from year to year, and place to

place. It is therefore difficult to make specific

findings about the effects of a voting regulation.

Moreover, the remedy for a tainted election is an

imperfect one. Rerunning an election would have

a negative impact on voter turnout. Thus,

requiring proof that a 100-foot boundary is

perfectly tailored to deal with voter intimidation

and election fraud would necessitate that a

State’s political system sustain some level of

damage before the legislature could take

corrective action.

Burson, 112 S. Ct. at 1856-57 (internal quotation marks and

footnote omitted).

10a

because there a campaign worker wanted to solicit

votes on election day, while here Plaintiffs aim only to

seek the supporting signatures of voters -- who had

already voted -- about a non-ballot issue.

We accept that Burson does not bind us here;

the material facts are different in some ways.

Nevertheless, we believe that the Burson plurality

opinion is highly persuasive; and we extend its

reasoning to the facts of this case.

1. Compelling Interest

Under the Burson plurality’s standard, we

must first examine whether the State has a

compelling interest to support its statute. The State

contends that it shares the same compelling interests

as Tennessee in Burson: (1) protecting voters from

confusion and undue influence; and (2) preserving the

integrity of the election process. Plaintiffs take no

issue with the presence or legitimacy of those

compelling interests in this case. Nor do we.

2. Necessity

Having identified the pertinent compelling

interests, we turn to the more difficult question of

whether the Florida statute is necessary to serve

those interests. The State claims that it need not

produce evidence of exit solicitors intimidating voters

or interfering with the election process to prove

necessity. Instead, the State asserts that it, like

Tennessee in Burson, may rely on our country’s long

history of election regulation, the widespread

agreement that emerged from that history, and

common sense to show that the ban on exit

lla

solicitation within 100 feet of a polling place is

necessary to promote its compelling interests.

Plaintiffs criticize this approach. They say that

exit solicitation is a peaceful, non-disruptive activity

targeting only those voters who have already voted!!

and claim that this “already-voted” feature

distinguishes their conduct from the more

intimidating, violent, and unsavory behavior talked

about in the Burson plurality opinion.'!? Plaintiffs,

therefore, argue that the State may not rely on the

'! Plaintiffs compare exit solicitation to exit polling. Plaintiffs

contend that the Florida statute cannot lawfully prohibit one

and permit the other because, according to Plaintiffs, the

activities are constitutionally indistinguishable. But we

disagree: exit polling does not include advocating for the success

of some political proposal or candidate. Like other courts before

us, we see fundamental differences between the two activities

and, therefore, reject the comparison. See, e.g., Schirmer uv.

Edwards, 2 F.3d 117, 122 (5th Cir. 1993) (exit polling cases not

applicable to solicitation cases); Am. Broad. Co. v. Blackwell,

479 F. Supp. 2d 719, 738 (S.D. Ohio 2006) (“[E]xit polling cannot

reasonably be construed as a form of electioneering under any

definition of that term.”). Moreover, the plurality in Burson

expressly said that the Tennessee statute did not need to

prohibit exit polling to survive strict-scrutiny review. Burson,

1128. Ct. at 1855.

12 Plaintiffs claim that the plurality in Burson found no history

of electoral abuse by and no history of election-reform efforts

directed at exit solicitors. They cite as support the following

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

that political candidates have used other forms of solicitation or

exit polling to commit such electoral abuses.” Jd. at 1856. But we

believe that the plurality is referring in this dictum to

“charitable and commercial solicitation” and not, as Plaintiffs

suggest, to forms of political canvassing like exit solicitation. So

we afford this argument little weight.

12a

historical evidence of election abuse discussed in the

Burson plurality opinion but must instead offer its

own proof that the ban on exit solicitation in the

Florida statute is necessary. Echoing the district

court, Plaintiffs say that the State has produced no

such evidence.

About history, we agree with the State. We

simply cannot accept that exit solicitation is so

different from the other political conduct highlighted

in Burson to compel a different result here. As we see

it, commotion tied to exit solicitation is as capable of

intimidating and confusing the electorate and

impeding the voting process -- even deterring

potential voters from coming to the polls -- as other

kinds of political canvassing or political action around

the polls. This observation seems especially true

given the reality that polling places are of such a

diverse size and shape, including sometimes using

the same doors to enter and exit the polling place,

that voters waiting to cast their ballot will often be

close to and indistinguishable from voters who have

already done so.'* Although Plaintiffs suggest that

election officials can police the polls to ensure that

exit solicitation remains peaceful and targets only

voters who have already voted, we believe this

proposal places too great a burden on those officials to

'3 Plaintiffs even acknowledged in their complaint when they

described the method by which they intended to engage in exit

solicitation the difficulty in targeting only those voters who have

already voted: “A petition circulator will stand near the exit to

the polling place, in a position to maximize the likelihood of

interacting with voters who have already cast their ballots... .”

(emphasis added).

l3a

make split-second decisions on who is being solicited,

on how they are being solicited, and about what they

are being solicited: an invitation to controversy and

more disturbances then and there.

But even in Plaintiffs’ imagined perfect world

when absolutely only those people who have voted are

solicited, our belief does not waiver. The State wants

peace and order around its polling places, and we

accord significant value to that desire for it preserves

the integrity and dignity of the voting process and

encourages people to come and to vote. See Buckley v.

Am. Constitutional Law Found., Inc., 119 S. Ct. 636,

640 (1999) (acknowledging that “there must be a

substantial regulation of elections if they are to be

fair and honest and if some sort of order, rather than

chaos, is to accompany the democratic processes”)

(quoting Storer, 94 S. Ct. at 1279); Clean Up ‘84 uv.

Heinrich, 759 F.2d 1511, 1514 (11th Cir. 1985) (“We

recognize that the state has a significant interest in

protecting the orderly functioning of the election

process. It must ensure its voters that they may

exercise their franchise without distraction,

interruption, or harassment.”). Given the example of

history, if exit solicitation must be allowed close to

the polls, it takes little foresight to envision polling

places awash with exit solicitors, some competing

(albeit peacefully) for the attention of the same voters

at the same time to discuss different issues or

different sides of the same issue. And we accept it as

probable that some -- maybe many -- voters faced

with running the gauntlet will refrain from

14a

participating in the election process merely to avoid

the resulting commotion when leaving the polls. '4

The Burson plurality opinion teaches us that

the State need not wait for actual interference or

violence or intimidation to erupt near a polling place

for the State to act.'5 The State may take precautions

to protect and to facilitate voting; and the pertinent

history is broad enough to provide the proof of

reasonableness for a zone of order around the polls.

It is hard for State election officials to know

the precise moment just before solicitation becomes

interference in the election process. And if an election

is disturbed, it is hard to know what the impact was

on the election. The cost of a disturbed election is too

high to allow the State only to react to disturbances

'4 Indeed, although not necessary to our conclusion, the State

produced evidence confirming that many Florida voters have

complained that their entrance to and exit from the polls is like

“running the gauntlet” and have indicated that “they will no

longer participate in elections unless their access to the polls is

better protected by the law.”

15 In Burson, the plurality observed that Tennessee had other

statutes that made it a crime “to interfere with an election or to

use violence or intimidation to prevent voting.” Burson, 112 S.

Ct. at 1855. But the plurality recognized that Tennessee’s power

to protect the voting process was broader than just prohibiting

actual interference, violence, or intimidation. Jd. In a similar

way, the district court injunction limits the State to prohibiting

only conduct that is disorderly, disruptive, or not peaceful; but to

ease and to protect voting, the State’s legitimate power under

the Federal Constitution goes beyond what the injunction would

allow the State to do. The State can do more to restrict political

canvassing in a small zone around the polls. Thus, the

injunction cannot stand.

Sa

but not to prevent disturbances. We, therefore, reject

the contention that the State must offer its own

evidence demonstrating that the ban on exit

solicitation is necessary to serve its compelling

interests; our country’s long history of election

regulation, the consensus emerging from that history,

and the practical need to keep voters and voting

undisturbed all prove that the ban is warranted. !®

3. Narrowly Tailored

We last explore the breadth of the Florida

statute. To prove that the Florida statute is narrowly

tailored, the State must show that the Florida

Statute is “reasonable and does not significantly

impinge on _ constitutionally protected rights.”!’

Burson, 112 S. Ct. at 1857 (quoting Munro v. Socialist

Workers Party, 107 S. Ct. 533, 537-38 (1986))

16 Many other state legislatures seemingly share the belief that

some solicitation-free zone around polling places is necessary to

protect voters from confusion and undue influence and to

preserve the integrity and dignity of the election process, as

other states too have enacted law markedly similar to the

Florida statute. See, e.g., Cal. Elec. Code § 18370 (100-foot zone);

Colo. Rev. Stat. § 1-13-714 (100-foot zone); Ga. Code Ann. § 21-2-

414(b) (150-foot zone); Idaho Code Ann. § 18-2318(1) (100-foot

zone); Mass. Gen. Laws ch. 54, § 65 (150-foot zone); Mich. Comp.

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

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

zone).

17 The plurality in Burson cautioned that the modified “burden

of proof” applies only where the prohibited activity threatens to

interfere with the act of voting itself or physically interferes

with voters attempting to cast their ballot. Burson, 112 S. Ct. at

1856 n.11. We believe that exit solicitation of the kind in this

case triggers the application of the Burson plurality’s standard.

16a

(emphasis added in Burson). The Florida statute

mirrors in many respects -- including the size of the

restricted zone -- the Tennessee statute upheld in

Burson. And we conclude that the Florida statute is

sufficiently tailored to satisfy the pertinent standard.

Conclusion

We accept that the right to engage in political

discourse is “the essence of _ self-government.”

Garrison v. Louisiana, 85 8S. Ct. 209, 216 (1964). But

voting is about the most important thing there is.

And as history has taught us, the mght of political

discourse is far from absolute: it must at times step

aside so other freedoms similarly pivotal to our

republic can thrive. The Florida statute, which

balances the right to engage in political speech

against the right to vote without interference and

harassment, represents one of those times.

We stress the short time (a few days a year)

and small area (less than a football field) in which the

Florida statute suppresses some political speech

around the polls; Plaintiffs are free to solicit

signatures unencumbered most days a year and to

solicit signatures outside the solicitation-free zone all

days a year. And by the way, we are not alone in our

decision: other courts, in cases involving petitions,

have also upheld statutes establishing solicitation-

free zones around polling places.!8 We believe that

18 For example, in United Food & Commercial Workers Local

1099 v. City of Sidney, 364 F.3d 738 (6th Cir. 2004), the Sixth

Circuit Court of Appeals applied the Burson plurality’s standard

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

(continued ...)

17a

the sanctity of the voting process and the abuse it has

historically faced must allow the Florida legislature

to exercise some foresight, to take precautions, and to

prohibit questionable conduct near polling places

before that conduct proves its danger; a compromised

election is too great a harm to require otherwise.

We, therefore, conclude today that the Florida

statute does not violate the First Amendment by

banning Plaintiffs from engaging in exit solicitation

about a non-ballot issue within 100 feet of polling

places in Florida. Accordingly, the district court

abused its discretion in granting Plaintiffs a

preliminary injunction.

REVERSED.

(... continued)

prohibited solicitation within 100 feet of a polling place. Jd. at

748. And earlier, in Schirmer, the Fifth Circuit Court of Appeals,

also relying on the Burson plurality’s standard, upheld a

Louisiana statute that prohibited solicitation about non-ballot

issues within 600 feet of a polling place. Schirmer, 2 F.3d at 119.

18a

Filed

2008 AUG 22 AM 11:15

U.S. DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS, FLORIDA

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

CITIZENS FOR POLICE

ACCOUNTABILITY POLITICAL

COMMITTEE, and FLORIDA STATE

CONFERENCE OF THE NATIONAL

ASSOCIATION FOR ADVANCEMENT

OF COLORED PEOPLE,

Plaintiffs,

Vs. Case No. 2:08-cv-635-FtM-29SPC

KURT S. BROWNING, in his capacity

as Secretary of State of the State of

Florida, and SHARON L.

HARRINGTON, in her official capacity

as Supervisor of Elections, Lee County,

Defendants.

OPINION AND ORDER

This matter comes before the Court on

19a

Plaintiffs’ Motion for Preliminary Injunction (Doc. #2)

filed on August 11, 2008. Plaintiffs seek to enjoin the

enforcement of Florida Statute § 102.031 (4) (a)-(b)

(2008) on the basis that it is facially unconstitutional

and unconstitutional as applied to plaintiffs’ petition

circulation activities. Defendant Browning’s Response

in Opposition to Plaintiffs’ Motion for Preliminary

Injunction (Doc. #11) was filed on August 19, 2008.

The Court heard oral arguments on August 21, 2008.

For the reasons set forth below, the motion will be

granted in part.

I.

Plaintiff Citizens for Police Accountability

Political Committee (“CPA”) is a political action

committee registered with the Florida Secretary of

State and the Lee County Supervisor of Elections.

(Doc. #1, 910.) Plaintiff Florida State Conference of

the National Association for the Advancement of

Colored People (“Florida NAACP”) is the umbrella

organization for sixty Florida branches of the

national NAACP and coordinates the activities of the

NAACP branches throughout Florida, including the

activities of the Lee County, Florida, branch. (Jd. at 4

11.) Since August 30, 2007, CPA has been circulating

a petition to place an amendment of the City of Fort

Myers Charter on the ballot, in order to create a

citizen oversight pane] for the Fort Myers Police

Department (the “Petition”). (dd. at 44 1, 15.) The

Florida NAACP joined the Petition circulation effort

on April 23, 2008. Ud. at | 18.) To be placed on the

ballot, petitions must be “signed by ten percent of the

registered electors as of the last preceding municipal

general election.” FLA. STAT. § 166.031 (1) (2007).

20a

Plaintiffs assert that after nearly a year of circulating

the Petition at polling places, recreational areas, and

churches, as well as canvassing door-to-door, they

and others have obtained approximately 1,700

signatures of verified voters out of the required 2,508

signatures. (Doc. #1, {| 16, 19-22.)

Plaintiffs assert that the best method of

obtaining qualified signatures is to seek voters’

signatures after they have left a polling place or,

early voting site. (Jd. at {§ 23.) During the

Presidential Preference Primary on January 29, 2008,

however, CPA petition circulators working one Lee

County precinct were required to stand outside a 100-

foot “No Approach Zone” created by the Florida

statute now being challenged. (Jd. at 4 16.) Plaintiffs

assert that this “No Approach Zone,” which in some

precincts covers not only the polling place but also

portions of the parking area, entry path and public

sidewalks, severely impedes their First Amendment

right of access to the high concentration of civically

active, registered voters found at polling places on

election days and at early voting sites. (Jd. at 44 17,

24.)

Plaintiffs plan to circulate the Petition at

polling places in Lee County on August 26, 2008, and

at early voting sites prior to that date, in an attempt

to obtain enough signatures to place their proposed

amendment on an upcoming ballot. (ld. at 4 26.)

Plaintiffs seek to have a petition circulator stand near

the exit of certain polling places, approach voters as

they exit, and attempt to obtain their signature on

the Petition. Ud. at § 27.) Although the subject

matter of the Petition does not relate to any matter

2la

on the current ballot, the “No Approach Zone”

mandated by the Florida statute would preclude this

activity. (/d. at § 28.)

Count One of the Complaint seeks a

declaratory judgment that the Florida statute is

facially unconstitutional as a _ content-based,

substantially overbroad restriction on protected First

Amendment speech and conduct. (/d. at {4 39, 40.)

Count Two seeks a declaratory judgment that the

Florida statute is unconstitutional as applied to

plaintiffs’ Petition circulation activities as a content-

based, impermissible restriction on plaintiffs’ First

Amendment rights of speech and association, and the

right to petition for grievances. (Jd. at 44 47, 50, 52.)

Count Three seeks preliminary and permanent

injunctive relief banning the enforcement of the

Florida statute against plaintiffs. Ud. at 4 58.)

II.

Florida statute § 102.031 addresses, among

other things, the maintenance of good order at polling

places and the unlawful solicitation of voters. The

statute first gives each election board the “full

authority to maintain order at the polls and enforce

obedience to its lawful commands during an election

and the canvass of the votes.” FLA. STAT. § 102.031 (1)

(2008). The statute then requires the Sheriff to

deputize a deputy sheriff for each polling place and

each early voting site, requires the deputy sheriff to

be present from the time the polls or early voting

sites open until the election is completed, and

requires the deputy sheriff to be subject to the lawful

commands of the clerk or inspectors and to maintain

good order. FLA. STAT. § 102.031 (2). The statute

22a

identifies the persons who may enter the polling room

or polling place and early voting areas. FLA. STAT. §

102.031 (3). The statute then provides, in the portion

challenged by plaintiffs, as follows:

(a) No person, political committee,

committee of continuous existence, or

other group or organization may solicit

voters inside the polling place or within

100 feet of the entrance to any polling

place, or polling room where the polling

place is also a polling room, or early

voting site. Before the opening of the

polling place or early voting site, the

clerk or supervisor shall designate the

no-solicitation zone and mark the

boundaries.

(b) For the purpose of this subsection,

the terms “solicit” or “solicitation” shall

include, but not be limited to, seeking or

attempting to seek any vote, fact,

opinion, or contribution; distributing or

attempting to distribute any political or

campaign material, leaflet, or handout;

conducting a poll except as specified in

this paragraph; seeking or attempting to

seek a signature on any petition; and

selling or attempting to sell any item.

The terms “solicit” or “solicitation” shall

not be construed to prohibit exit polling.

FLA. STAT. § 102.031(4) (a)-(b). The statute does not r

define “exit polling.” The statute further requires that

each supervisor of elections inform the clerk of the

designated area within which soliciting is deemed to

23a

be unlawful, based on the particular characteristics of

that polling place. FLA. STAT. § 102.031 (4) (c). The

supervisor or clerk is allowed to “take any reasonable

action necessary to ensure order at the _ polling

places,” including having disruptive or unruly

persons removed by law enforcement from the polling

room, polling place, or from the 100-foot zone

surrounding the polling place. /d.

The Florida Department of State is required to

create and adopt a uniform polling place procedures

manual discussing, among other things, regulations

governing solicitation by individuals and groups at

polling places. FLA. STAT. § 102.014 (5) (a) (2008).

Florida Administrative Code Rule 1S-2.034 adopted

the “Polling Place Procedures Manual” (the “Manual”)

by the Florida Department of State, Division of

Elections, the current version of which is effective

August, 2008. In pertinent part, the Manual states

that “[t}he only exception to the no-solicitation law

applies to the media or others who are allowed to

conduct exit-polling activities. They may approach

voters only after voters leave the polling place.” See

Div. of Elections, Fla. Dep’t of State, Polling Place

Procedures Manual, at 4 (2008) (emphasis in

original),

http://election.dos.state.fl.us/publications/pdf/2007-

2008/2008VoterRegisVoteGuide.pdf.

Ill.

In the Eleventh Circuit, the issuance of “a

preliminary injunction is an extraordinary and

drastic remedy that should not be granted unless the

movant clearly carries its burden of persuasion” on

each of four prerequisites. Canal Auth. of Fla. v.

24a

Callaway, 489 F.2d 567, 573 (5th Cir. 1974)!. See also

McDonalds Corp. v. Robertson, 147 F.3d 1301, 1306

(11th Cir. 1998). The party seeking a preliminary

injunction must demonstrate: (1) a_ substantial

likelihood of success on the merits; (2) that

irreparable injury will be suffered absent an

injunction; (3) that the injury to movant outweighs

the injury the proposed injunction would cause to the

opposing party; and (4) that the proposed injunction

would serve the public interest. E.g., Johnston v.

Tampa Sports Auth., 530 F.3d 1320, 1325 (11th Cir.

2008). The burden of persuasion for each of the four

requirements is upon the movant. Siegel v. LePore,

234 F.3d 1163, 1176 (11th Cir. 2000) (en banc).

IV.

Plaintiffs argue that FLA. STAT. § 102.031 (4)

(a)-(b) is unconstitutional both on its face and as

applied to plaintiffs’ exit petitioning. The current

statute was amended effective July 1, 2008, and no

reported case has yet addressed its constitutionality.

Plaintiffs argue that the recent amendments to the

statute harken back to former versions of the statute

which were found unconstitutional. (Doc. #2, pp. 2-7.)

Defendants respond that Burson v. Freeman, 504

U.S. 191 (1992), compels the conclusion that the

Florida statute is constitutional and that plaintiffs

have not satisfied any of the four requirements for a

' In Bonner v. Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en

banc) the Eleventh Circuit adopted as binding precedent all the

decisions of the former Fifth Circuit handed down prior to the

close of business on September 30, 1981.

25a

preliminary-injunction. (Doc. #11.)

Some preliminary matters are not disputed by

either party. First, there is no doubt that soliciting

signatures for a petition to amend a city charter is a

matter protected by the First Amendment. Such

conduct has been appropriately described as “core

political speech” in which the importance of First

Amendment protection is “at its zenith.” Meyer v.

Grant, 486 U.S. 414, 414, 420-22, 425. (1988); Buckley

v. Am. Constitutional Law Found., 525 U.S. 182, 186-

87 (1999). Additionally, gathering at the polls to

solicit signatures is protected political association.

Clean-Up ‘84 v. Heinrich, 759 F.2d 1511, 1511 (11th

Cir. 1985).

Second, there is also no doubt that the State of

Florida and Lee County have compelling interests in

regulating election and voting matters. Each has

compelling interests in protecting the right of their

citizens to vote freely for candidates of their choice in

an election conducted with integrity and reliability,

and in. protecting against voter’ intimidation,

confusion, and election fraud. Burson, 504 U.S. at

198-99. Thus, the U.S. Supreme Court has recognized

that “there must be a substantial regulation of

elections if they are to be fair and honest and if some

sort of order, rather than chaos, is to accompany the

democratic processes.” Buckley, 525 U.S. at 187

(citations omitted.) See also Clean-Up ‘84, 759 F.2d at

1514 (“We recognize that the state has a significant

interest in protecting the orderly functioning of the

election process. It must ensure its voters that they

may exercise their franchise without distraction,

interruption, or harassment.”) Additionally, the

26a

Florida Voter’s Bill of Rights includes the right to

“Ivjote free from coercion or intimidation by elections

officers or any other person.” FLA. STAT. § 101.031 (2)

(2006).

Third, since at least 1977, Florida has

attempted to specifically prohibit solicitations of

signatures for petitions near polling places. FLA.

STAT. § 104.36 (1977). Florida’s statutory history, in

addressing the concerns related to solicitation at a

polling place, has been summarized in Florida

Committee for Liability Reform v. McMillan, 682 F.

Supp. 1536, 1538-39 (M.D. Fla. 1988) and CBS, Inc. v.

Smith, 681 F. Supp. 794, 797-98 (S.D. Fla. 1988).

Each version of the statute that has been challenged

has been found to be unconstitutional or has been

enjoined as likely to be unconstitutional. Clean-Up

‘84, 759 F.2d at 1513 (invalidating 1984 version as

overbroad on its face); Florida Committee, 682 F.

Supp. 1536, 1538-39 (M.D. Fla. 1988) (enjoining

enforcement of 1987 version as overbroad); CBS, Inc.,

681 F. Supp. at 794 (enjoining enforcement of 1987

version as applied to media exit polling); Firestone v.

News-Press Pub. Co., 538 So. 2d 457, (Fla. 1989)

(invalidating statute, precluding nonvoters from

being within fifty feet of the polling place, as

overbroad); CBS Broad., Inc. v. Cobb, 470 F. Supp. 2d

1365 (S.D. Fla. 2006) (enjoining enforcement of 2005

version as overbroad as applied to exit polling).

Despite this history, defendants assert that “Burson

reconstructed the way courts approach constitutional

challenges to polling place restrictions.” (Doc. #11, p.

4.)

27a

Ve

The most hotly-contested issue is plaintiffs’

substantial likelihood of success on the merits.

Plaintiffs assert that they are likely to prevail on both

their facial and as-applied challenges, while

defendants assert that plaintiffs will not prevail on

either.

A. Facial Challenge to Statute:

In Count One of their Complaint, plaintiffs

argue that Florida Statute § 102.031 (4) (a)-(b) (2008)

violates the First Amendment on its face. A facial

challenge seeks to invalidate the statute itself, and

seeks to vindicate not only plaintiffs’ rights but those

of others who may be adversely impacted by the

statute. DA Mortg., Inc. v. City of Miami Beach, 486

F.3d 1254, 1262 (11th Cir. 2007). The U.S. Supreme

Court has articulated two standards for evaluating

such facial First Amendment challenges. Clean-Up

‘84, 759 F.2d at 1513.

(1) Unconstitutional in All Applications:

Under the first test, “a plaintiff can only

succeed in a facial challenge by establish[ing] that no

set of circumstances exists under which the Act would

be valid, i.e., that the law is unconstitutional in all of

its applications.” Wash. State Grange v. Wash. State

Republican Party, 128. S. Ct. 1184, 1190 (2008)

(quoting United States v. Salerno, 481 U.S. 739

(1987)). “|A] facial challenge must fail where the

statute has a plainly legitimate sweep.” Wash. State

Grange, 128 S. Ct. at 1190, quoting Washington v.

Glucksberg, 521 U.S. 702, 739-40. (1997). The

Supreme Court also cautioned that “[ i]n determining

28a

whether a law is facially invalid, we must be carefu!

not to go beyond the statute’s facial requirements and

speculate about ‘hypothetical’ or ‘imaginary’ cases.”

Wash. State Grange, 128 S. Ct. at 1190 (citation

omitted.) In short, “[flacial challenges are disfavored

...” Id. at 1191.

Plaintiffs do not seem to pursue an argument

under this standard. (Doc. #2, pp. 18-21.) It is clear in

light of Burson and Wash. State Grange (discussed

below) that Florida Statute § 102.031 (4) (a)-(b) (2008)

is not categorically unconstitutional in each of its

potential applications. Therefore, plaintiffs do not

satisfy this standard.

(2) Overbreadth of statute:

The second type of facial challenge in the First

Amendment context concerns an _ impermissibly

overbroad statute. Wash. State Grange, 128 S. Ct. at

1191 n.6. “According to our First Amendment

overbreadth doctrine, a statute is facially invalid if it

prohibits a substantial amount of protected speech.”

United States v. Williams, 128 S. Ct. 1830, 1838

(2008). Because this doctrine balances competing

interests, the Supreme Court has “vigorously

enforced the requirement that a statute’s overbreadth

be substantial, not only in an absolute sense, but also

relative to the statute’s plainly legitimate sweep.

Invalidation for overbreadth is ‘strong medicine’ that

is not to be ‘casually employed.” Williams, 128 S. Ct.

at 1838 (citations omitted.) “The concept of

‘substantial overbreadth’ is not readily reduced to an

exact definition. . . . In short, there must be a realistic

danger that the statute itself will significantly

compromise recognized First Amendment protections

29a

of parties not before the Court for it to be facially

challenged on overbreadti grounds.” Members of City

Council v. Taxpayers for Vincent, 466 U.S. 789, 800-

801 (1984).

The Court finds that plaintiffs have not shown

a substantial likelihood that they can establish that

Florida Statute § 102.031(4) (a)-(b) (2008) prohibits a

substantial amount of protected speech either in an

absolute sense or relative to the statute’s plainly

legitimate sweep. While plaintiffs show that a literal

application of the 100-foot zone encompasses

traditional public forums at some polling places, the

showing has not been sufficient either in the absolute

sense or relative to the statute’s plainly legitimate

scope. The statute requires that the supervisor of

elections inform the clerk of the designated no-

solicitation area “based on the particular

characteristics of that polling place,” FLA. STAT. §

102.031 (4) (c), and requires the clerk or supervisor to

designate the no-solicitation zone and mark its

boundaries before the polling place or early voting

site is opened. FLA. STAT. § 102.031 (4) (a). Plaintiffs

allege that one polling place, Precinct 48, had a No

Approach Zone that actually encompassed traditional

public forums (Doc. #1, 9{ 16-17) and that this

appeared to be the situation at two other polling

places as well. (Declaration of Aisha Sanchez, Doc. 2-

3, 9% 14-15.) This does not constitute a sufficient

showing that the actually designated no-solicitation

zones have included traditional public forums to a

substantial degree.

B. As Applied Challenge:

An as-applied challenge is available even

30a

where a facial challenge is rejected. FEC v. Wis. Right

to Life, Inc., 127 S. Ct. 2652, 2670 n.8 (2007); City

Council, 466 U.S. at 803 n.22 (“The fact that the

ordinance is capable of valid applications does not

necessarily mean that it is valid as applied to these

litigants.”) An “as-applied” challenge seeks to

vindicate only plaintiffs’ own rights. DA Mortg., Inc.,

486 F.3d at 1262; Jacobs v. The Florida Bar, 50 F.3d

901, 906 (11th Cir. 1995).

The general substantive principles relating to

election restrictions were summarized in Wash. State

Grange: the States possess a broad power to prescribe

the time, place and manner of holding elections for

federal and state offices; this power is not absolute,

and may not be exercised in a way that violates

specific provisions of the U.S. Constitution, including

the First Amendment; the States have _ the

responsibility to observe the First Amendment rights

of their citizens, including the freedom of political

association; election regulations that impose a severe

burden on associational rights are subject to strict

scrutiny and are upheld only if they are narrowly

tailored to serve a compelling state interest; however,

if a State imposes only modest burdens, then a state’s

important regulatory interests are generally

sufficient to justify reasonable, nondiscriminatory

restrictions on election procedures. Wash. State

Grange, 128 S. Ct. at 1191-92 (quotations and

citations omitted).

As relevant to this case, FLA. STAT. §

102.031(4) (a)-(b) provides that “[n]o person may

solicit voters . . . within 100 feet of the entrance to

any polling place . . . or early voting site.... “[SJolicit’

3la

or ‘solicitation’ shall include, but not be limited to, ...

seeking or attempting to seek a signature on any

petition; ‘solicit’ or ‘solicitation’ shall not be construed

to prohibit exit polling.” Defendants conceded at oral

argument that the statute is content-based, and

therefore that strict or exacting scrutiny applies. The

strict scrutiny standard defendants advocate is that

set forth in Burson.

At issue in Burson was a Tennessee statute

prohibiting the solicitation of votes for or against any

person, political party or position, and prohibiting

displays or distributions of campaign materials

within 100 feet of the entrance to a polling place.

Burson, 504 U.S. at 193-4. A plurality of the Supreme

Court found that “[a]s a facially content-based

restriction on political speech in a public forum [the

Tennessee statute] must be subjected to exacting

scrutiny: The State must show that the regulation is

necessary to serve a compelling state interest and

that it is narrowly drawn to achieve that end” Jd. at

198 (quotations omitted). The Supreme Court noted

that to survive strict scrutiny, a State must do more

than assert a compelling state interest — it must

demonstrate that its law is necessary to serve the

asserted interest.” Id. at 199. The Court “readily

acknowledged” that a law rarely survives the

exacting standards of strict scrutiny analysis, but

found that “an examination of the evolution of

election reform ... demonstrates the necessity of

restricted areas in or around polling places.” Jd. at

200. The Court found that a history of pervasive and

systematic abuses of the electoral system led all fifty

states to settle on the same solution: “a secret ballot

32a

secured in part by a restricted zone around the voting

compartments. We find that this widespread and

time-tested consensus demonstrates that some

restricted zone is necessary in order to serve the

States’ compelling interests in preventing voter

intimidation and election fraud.” Id. at 206.

In reaching this conclusion, the Court rejected

three arguments. First, the Court rejected the

argument that the statute was overinclusive because

the state could secure the same compelling interests

with statutes making it a misdemeanor to interfere

with an election or to use violence or intimidation to

prevent voting. Jd. (quotations omitted). Second, the

Court rejected the argument that the statute was

underinclusive because it does not restrict other types

of speech, including exit polling. Jd. at 207

(quotations omitted). The Court stated: “We agree

that distinguishing among types of speech requires

that the statute be subjected to strict scrutiny. We do

not, however, agree that the failure to regulate all

speech renders the statute fatally underinclusive.” Jd.

The Court found that while there was ample

historical evidence that political candidates had used

campaign workers to commit voter intimidation and

electoral fraud, there was no historical evidence that

other forms of solicitation or exit polling had been

used to commit such electoral abuses. “States adopt

laws to address the problems that confront them. The

First Amendment does not require states to regulate

for problems that do not exist.” Id. Third, the Court

rejected the argument that there was no link between

ballot secrecy and some restricted zone surround the

voting area. Id. at 207-08. The Court held that “some

33a

restricted zone around the voting area is necessary to

secure the state’s compelling interest.” Jd. at 208.

(emphasis in original).

The Court then discussed the “real question” of

“how large a restricted zone is permissible or

sufficiently tailored.” Jd. (emphasis in original). The

Court concluded that an empirical demonstration of

the objective effects of the statute on voting was

unnecessary (“Elections vary from year to year, and

place to place”), and that proof that the 100-foot

boundary was perfectly tailored to deal with the

State’s interests was not necessary so long as the

statute was reasonable and did not significantly

impinge on constitutionally protected rights. /d. at

209.2 The Court concluded that it did “not think that

the minor geographic limitation prescribed by [the

statute] constitute [d] such a _ significant

impingement. Thus, [it] simply d[id] not view the

question whether the 100-foot boundary line could be

somewhat tighter as a question of ‘constitutional

dimension.” Id. at 210. “The State of Tennessee has

decided that these last 15 seconds before its citizens

enter the polling place should be their own, as free

from interference as possible. We do not find that this

is an unconstitutional choice.” Jd.

> The Court noted that this “modified ‘burden of proof” applied

“only when the First Amendment right threatens to interfere

with the act of voting itself, i.e., cases involving voter confusion

from overcrowded ballots, like Munroe [v. Socialist Workers

Party, 479 U.S. 189 (1986)], or cases such as this one, in which

the challenged activity physically interferes with electors

attempting to cast their ballots.” Burson, 504 U.S. at 209 n. 11.

34a

Thus, under Burson, the state must show that

the statute is (1) necessary (2) to serve a compelling

state interest and (3) that it is narrowly drawn or

sufficiently tailored to achieve that end. As discussed

previously, there is no dispute that Florida Statute §

102.031 (4) (a)-(b) (2008) serves compelling state

interests. The difficulty in this case involves whether

the restricted area is “necessary” and narrowly drawn

in relation to plaintiffs’ specific activities. In the as-

applied context of this case, the Court finds that the

statutory restriction is neither necessary nor

narrowly drawn as applied to plaintiffs’ exit

petitioning activity.

Burson’s determination that a restricted area

around polling places could be necessary was based

upon an extensive review of historical experience

with political candidates, and their abuse and

attempted abuse of the electoral process. The

Tennessee statute at issue related directly to such

abuse, prohibiting the solicitation of “votes” (not

“voters” as in the Florida statute) and the display and

distribution of campaign materials. The ample

historical evidence clearly established the necessity

for such a restricted zone as to such conduct. In

contrast, Burson found no historical evidence that

solicitations by others or exit polling had been used to

commit comparable electoral abuses. 504 U.S. at 206.

The evidence submitted by the parties in this case

also fails to establish electoral abuses perpetrated by

other exit solicitors or exit polling. Therefore, at this

stage of the proceedings, there has not been a

sufficient showing that the restriction on exit

petitioning is necessary.

35a

In this case, the narrowly-drawn component of

strict scrutiny review relates not to the 100-foot

distance but to the types of activities precluded

within that zone. Exit polling, left undefined in the

Florida statute, is permitted, while other exit

solicitation, including the solicitation of signatures on

petitions, are prohibited. Even assuming that an exit

solicitation qualifies for the “modified burden of

proof” requirement of Burson because it is considered

an “activity [which] physically interferes with electors

attempting to cast their ballots,” Burson, 504 U.S.

209 n. 11, the statute must still be reasonable and

must not significantly impinge on constitutionally

protected rights. The record at this stage of the

proceedings does not satisfy these requirements as

they relate to plaintiffs’ proposed activities. Plaintiffs

propose to, in a peaceful, orderly and non-disruptive

manner, (1) solicit signatures (2) for a_ petition

required by statute to place an amendment of the

Fort Myers City Charter on a future ballot (3) from

voters at polling places and early voting sites (4) after

the voters have voted (5) during the August 26, 2008

election and its early voting period, during which the

subject matter of the petition is not related to any

matter upon which the voters are deciding. Under

these specific circumstances, the ban on soliciting

Signatures is not narrowly drawn or sufficiently

tailored to satisfy the First Amendment.

VI.

The remaining three requirements for a

preliminary injunction § require relatively less

discussion, and each will be briefly addressed in turn.

36a

A. Substantial Threat of Irreparable Injury if

Relief Denied:

Defendants assert that plaintiffs’ purported

injury can be simply quantified in terms of the

additional money, time and effort to be expended by

plaintiffs while pursuing the remaining signatures for

the Petition. (Doc. #11, pp. 18-19.) Defendants claim

that plaintiffs “could eliminate any purported harm

by expending the additional increment of time and

effort to collect sufficient signatures outside of the

protected zone, just as numerous other sponsors of

successful Florida initiative petitions (both local and

statewide) have done.”3

Plaintiffs assert that irreparable harm will

result in the absence of an injunction; namely, that no

amount of monetary damages would suffice to

compensate plaintiffs for “the lost opportunity to

circulate the [Petition at Lee County polling places

on the day of an election and at early voting sites,”

(Doc. #2, p. 22), and that “because of the ‘intangible

nature’ of the harm the chilling of speech inflicts, it

cannot be compensated for by money damages.” (/d.

(citing KH Outdoor, LLC v. Trussville, 458 F.3d 1261,

* Defendants claim that Elrod is inapplicable because Florida's

“No Approach Zone” “does not prevent speech altogether — it is a

‘minor geographic limitation’ that constitutes no ‘significant

impingement’ of First Amendment rights.” (Doc. #11, p. 19 n.15

(quoting Burson, 504 U.S. at 210).) The language that

defendants reference, however, refers to the Supreme Court's

discussion of the radius of the Burson statute’s protected zone

(whether a 100-foot zone is narrowly tailored), rather than the

Supreme Court's substantive discussion as to the protected

zone’s constitutionality overall.

37a

1272 (11th Cir. 2006).)

The Court finds that plaintiffs have shown that

they will suffer irreparable injury if a preliminary

injunction is denied because the loss of First

Amendment rights, even for a short period, causes

irreparable harm. “[I]t is well established [by the

Supreme Court] that ‘[t]he loss of First Amendment

freedoms, for even minimal periods of time,

unquestionably constitutes irreparable injury.” E.g.,

KH Outdoor, 458 F.3d at 1271-2 (quoting Elrod v.

Burns, 427 U.S. 347, 373 (1976)); Cate v. Oldham,

707 F.2d 1176, 1188 (11th Cir. 1983). “To the extent

that an infringement of First Amendment rights is

shown, some federal courts have held that irreparable

injury justifying preliminary injunctive relief is

presumed.” Cate, 707 F.2d at 1189 n. 10 (citation

omitted). “One reason for such stringent protection of

First Amendment rights certainly is the intangible

nature of the benefits flowing from the exercise of

those rights; and the fear that, if these rights are not

jealously safeguarded, persons will be deterred, even

if imperceptibly, from exercising those rights in the

future.” Jd. at 1189 (citation omitted). Restricting

plaintiffs’ access to seek petition signatures will work

an irreparable harm on plaintiffs’ exercise of their

rights to petition the government for redress of

prievances.

B. Balancing Injury to Parties:

Plaintiffs assert that they would suffer

significantly greater harms under the statute's

restrictions than defendants would suffer should the

injunction be granted. Plaintiffs claim that polling

places provide the highest concentration of registered

38a

voters, who are precisely the signatories required

under Florida statute in order to place the Petition on

the ballot. (Doc. #2, p. 22.) Plaintiffs further argue

that “door-to-door canvassing and shoppingmall [sic]

solicitation are poor and impractical alternatives for

purposes of collecting large numbers of signatures for

registered voters,” and that the farther plaintiffs get

from the polling place exit, the less likely they are to

interact with a voter. (/d. (citing Committee for Sandy

Springs, Inc. v. Cleland, 708 F. Supp. 1289, 1291

(N.D. Ga. 1988); CBS, Inc., 681 F. Supp. 794, 799-800

(S .D. Fla. 1988)).

Defendants claim that plaintiffs’ injury is

“hardly substantial” and that on balance, the

imposition of a preliminary injunction would “not be a

measured response to [pjlaintiffs’ claims that their

signature gathering would be more efficient closer to

the polling place door.” (Doc. #11, p. 19.) As discussed

above, it is not clear from the record in this case that

the issuance of a preliminary injunction will

substantially harm defendants, or that denial of

plaintiffs’ requested relief is necessary to protect

defendants’ legitimate interests. Furthermore, as

plaintiffs indicate, “a number of readily available

means, short of an outright ban on solicitation, can be

employed to protect the integrity of the election

process.” (Doc. #2, p. 24 (quoting Florida Committee,

682 F. Supp. at 1543).) Thus, the Court finds that

plaintiffs have shown that they will suffer relatively

more harm from the denial of a _ preliminary

injunction than defendants would suffer should relief

be granted.

C. Public Interest:

Defendants assert, legitimately, that Florida

has an interest in “protecting voters from harassment

and intimidation at their polling places .. . [and in]

protect[ing] the orderly administration of elections

and the election process.” (Doc. #11, p. 20.)

Defendants further argue that the issuance of a

preliminary injunction runs counter to this public

interest. Defendants claim that “Florida’s interest in

maintaining a limited protected zone around polling

places is substantial,” and that plaintiffs’ “purported

needs cannot justify the invalidation of Florida’s

critical protected zone around polling places.” (Doc.

#11, p. 20.) Plaintiffs disagree, stating that “[b]ecause

freedom of speech is a cherished right in American

society, those activities that promote the exercise of

this fundamental right are clearly in the public

interest.” (Doc. #2, p. 24.)

The Court finds that the public interest would

be furthered by granting a preliminary injunction to

enjoin enforcement of the statute and to allow

plaintiffs’ requested form of exit petition circulation,

without unduly burdening the State’s interest in

preventing voter intimidation or erosion of integrity

in the electoral process. As in Florida Committee,

impeding plaintiffs from asking their fellow citizens

to join them in proposing an amendment defeats the

public interest in robust debate on public issues. 682

F. Supp. at 1543. See also, Clean-Up ‘84, 582 F. Supp.

at 127 (“All citizens have an interest in a robust

debate on public issues.”), Further, the Court agrees

with plaintiffs’ argument that “not only will a

preliminary injunction serve [p]laintiffs’ interest in

40a

exercising their rights, it will also serve the interests

of the citizens and registered voters of the City of Fort

Myers in receiving communications of the sort

proffered by [plaintiffs]. (Doc. #2, p. 25 (citing

University Books & Videos, Inc. v. Metropolitan Dade

County, 33 F. Supp. 2d 1364, 1374 n.1i (S.D. Fla.

1999).)

Accordingly, it is now

ORDERED:

Plaintiffs’ Motion for Preliminary Injunction

(Doc. #2) is GRANTED in part. A preliminary

injunction will issue separately.

DONE AND ORDERED at Fort Myers,

Florida, this 22nd day of August, 2008.

/s John E. Steele

JOHN E. STEELE

UNITED STATES DISTRICT JUDGE

Copies: Counsel of record

Filed

2008 AUG 22 AM 11:15

U.S. DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS, FLORIDA

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

CITIZENS FOR POLICE ACCOUNTABILITY

POLITICAL COMMITTEE, and FLORIDA STATE

CONFERENCE OF THE NATIONAL

ASSOCIATION FOR ADVANCEMENT OF

COLORED PEOPLE,

Plaintiffs,

Vs. Case No. 2:08-cv-635-FtM-29SPC

KURT S. BROWNING, in his capacity as Secretary of

State of the State of Florida, and SHARON L.

HARRINGTON, in her official capacity as Supervisor

of Elections, Lee County,

Defendants

|

PRELIMINARY INJUNCTION

This matter came before the Court on

Plaintiffs’ Motion for Preliminary Injunction (Doc. #2)

filed on August 11, 2008. Plaintiffs sought to enjoin

enforcement of Florida Statute § 102.031(4) (a)-(b)

(2008) on the basis that it is facially unconstitutional

and unconstitutional as applied to plaintiffs’ petition

42a

circulation activities. The Court heard oral

arguments on August 21, 2008, and has entered an

Opinion and Order contemporaneously with this

Preliminary Injunction setting forth its findings. The

Court finds, as more fully set forth in that Opinion

and Order, which is incorporated herein, the

following:

1. Plaintiffs have established that they are

substantially likely to succeed on the merits of their

First Amendment claim as it relates to the as-applied

challenge to Florida Statute § 102.031(4) (a)-(b)

(2008);

2. Plaintiffs have established that there is a

substantial threat of irreparable injury absent the

granting of a preliminary injunction prohibiting

enforcement of Florida Statute § 102.031(4) (a)-(b)

(2008), as to plaintiffs exit petition activities at

polling places and early voting sites during the

August 26, 2008 election and its early voting period;

3. Plaintiffs have established that their injury

resulting from enforcement of Florida Statute §

102.031 (4) (a) - (b) (2008), as to plaintiffs exit

petition activities at polling places and early voting

sites, outweighs the potential injury to defendants if

the preliminary injunction is granted; and

4. Plaintiffs have established that an

injunction barring enforcement of Florida Statute §

102.031(4) (a)-(b) (2008) would not harm or do a

disservice to the public interest.

Accordingly, it is now

ORDERED:

43a

1. Defendants Kurt S. Browning, in his

capacity as Secretary of State of the State of Florida,

and Sharon L. Harrington, in her official capacity as

Supervisor of Elections, Lee County, Florida, and

their officers, agents, servants, employees, and

attorneys, whether acting alone or in concert with

others, are prohibited and enjoined from enforcing or

threatening to enforce Florida Statute § 102.031(4)

(a)-(b) (2008) as to Plaintiffs’ peaceful, orderly and

non-disruptive (1) solicitation of signatures (2) for

their petition to place an amendment of the Fort

Myers City Charter on a future ballot (3) from voters

at polling places and early voting sites (4) after the

voters have voted (5) during the August 26, 2008

election and its early voting period.

2. This preliminary injunction shall not in any

way restrain those persons, whose duty it is to police

the polling places and early voting sites, from the

performance of their duty to protect voters or

prospective voters from interference with the free

exercise of their right to vote; and

3. The Court finds that no surety bond need be

posted by plaintiffs.

DONE AND ORDERED at Fort Myers,

Florida, this 22nd day of August, 2008.

/s John E. Steele

JOHN E. STEELE

UNITED STATES DISTRICT JUDGE

Copies: Counsel of record

44a

FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

SEP 04 2009

THOMAS K. KAHN

CLERK

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No.08-15115-DD

CITIZENS FOR POLICE

ACCOUNTABILITY POLITICAL

COMMITTEE, FLORIDA STATE

CONFERENCE OF THE NATIONAL

ASSOCIATION FOR THE

ADVANCEMENT OF COLORED

PEOPLE,

Plaintiffs-Appellees,

versus

KURT S. BROWNING, in his capacity

as Secretary of State of the State of

Florida, SHARON L. HARRINGTON, in

her official capacity as Supervisor of

Elections, Lee County,

Defendants-Appellants.

4Sa

On Appeal from the United States District Court for

the Middle District of Florida

ON PETITION FOR REHEARING AND PETITION

FOR REHEARING EN BANC

Before: DUBINA, Chief Judge, EDMONDSON and

HILL, Circuit Judges.

PER CURIAM:

The Petition for Rehearing is DENIED and no Judge

in regular active service on the Court having

requested that the Court be polled on rehearing en

banc (Rule 35, Federal Rules of Appellate Procedure),

the Petition for Rehearing En Banc is DENIED.

ENTERED FOR THE COURT:

/s J.L. Edmonson

UNITED STATES CIRCUIT JUDGE