Case 1:18-cv-00152-MW-GRJ Document 57 Filed 09/07/18 Page 1 of 27

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION

MARTA VALENTINA RIVERA
MADERA, on behalf of herself
and all others similarly situated,
FAITH IN FLORIDA, HISPANIC FEDERATION,
MI FAMILIA VOTA EDUCATION FUND,
UNIDOSUS, and VAMOS4PR
V.

Plaintiffs,

Case No. 1:18-cv-152-MW/GRJ

KENNETH W. DETZNER, in his official
capacity as the Florida Secretary
of State, and KIM A. BARTON, in her
official capacity as Alachua County
Supervisor of Elections, on behalf of
herself and similarly situated County
Supervisors of Elections,
Defendants.
__________________________/
ORDER GRANTING MOTION FOR PRELIMINARY
INJUNCTION IN PART
Here we are again. The clock hits 6:00 a.m. Sonny and Cher’s “I Got You
Babe” starts playing. Denizens of and visitors to Punxsutawney, Pennsylvania
eagerly await the groundhog’s prediction. And the state of Florida is alleged to
violate federal law in its handling of elections. 1

Phil Connors, portrayed by Bill Murray, experienced a similar phenomenon. GROUNDHOG DAY
(Columbia Pictures Corp. 1993).

1

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Puerto Ricans are American citizens. Unique among Americans, they are
not educated primarily in English—and do not need to be. But, like all
American citizens, they possess the fundamental right to vote. The issue in
this case is whether Florida officials, consistent with longstanding federal law,
must provide assistance to Puerto Rican voters who wish to vote. Under the
plain language of the Voting Rights Act, they must.
This Court has considered, after a hearing on September 5, 2018,
Defendant Kenneth Detzner’s motion to dismiss, ECF No. 42, and Plaintiffs’
motion for preliminary injunction. ECF No. 2. Defendant Detzner’s motion is
DENIED. Having balanced the equities, Plaintiffs’ motion is GRANTED in
part and DENIED in part. 2 This Court is issuing this Order on an expedited
basis to give the Secretary and the Scott administration ample opportunity to
appeal if they seek to block their fellow citizens, many of whom fled after
Hurricane Maria devastated Puerto Rico, from casting meaningful ballots. 3
I
While lost on some, Puerto Rico is part of the United States. 8 U.S.C. §
1101(a). The American flag has flown over the island since 1898, and its people
have been American citizens since 1917. Arroyo v. Tucker, 372 F. Supp. 764,

This Court will address Defendant Barton’s motion to dismiss, as well as the pending motions
for class certification, in a separate order after the motions have been fully briefed.
3 As for Defendant Barton’s part, she is already in the process of implementing most or all what
this Court orders.
2

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766 (E.D. Pa. 1974) (citing 8 U.S.C. § 1402); see also 8 U.S.C. § 1401(a). In 1965,
Congress passed the Voting Rights Act. Among its many provisions, the Act
establishes and protects the voting rights of citizens educated in Puerto Rico.
52 U.S.C. § 10303(e). 4 Congress explicitly passed this provision to address the
Puerto Rican population living outside of Puerto Rico. Katzenbach v. Morgan,
384 U.S. 643, 645 n.3 (1966).
Florida has 67 counties. Thirteen counties provide Spanish-language
ballots in compliance with another provision of the Voting Rights Act. 52
U.S.C. § 10503(b)(2)(A). This provision requires non-English ballots in political
subdivisions where either more than five percent of the voting-age citizenry or
more than 10,000 citizens of voting age are members of a single-language
minority and have limited proficiency in English. 5 Id. Two counties—Collier

Section 4(e) in its entirety states:
(1) Congress hereby declares that to secure the rights under the fourteenth amendment
of persons educated in American-flag schools in which the predominant classroom language was
other than English, it is necessary to prohibit the States from conditioning the right to vote of
such persons on ability to read, write, understand, or interpret any matter in the English
language.
(2) No person who demonstrates that he has successfully completed the sixth primary
grade in a public school in, or a private school accredited by, any State or territory, the District of
Columbia, or the Commonwealth of Puerto Rico in which the predominant classroom language
was other than English, shall be denied the right to vote in any Federal, State, or local election
because of his inability to read, write, understand, or interpret any matter in the English
language, except that in States in which State law provides that a different level of education is
presumptive of literacy, he shall demonstrate that he has successfully completed an equivalent
level of education in a public school in, or a private school accredited by, any State or territory,
the District of Columbia, or the Commonwealth of Puerto Rico in which the predominant
classroom language was other than English. 52 U.S.C. § 10303(e).

4

Those counties are Broward, DeSoto, Hardee, Hendry, Hillsborough, Lee, Miami-Dade, Orange,
Osceola, Palm Beach, Pinellas, Polk, and Seminole. 81 Fed. Reg. 87534–35 (2016).

5

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and Volusia—are not required to provide Spanish-language election materials
to comply with this provision, but they do anyway. ECF No. 2, Ex. 3, at ¶ 6,
Ex. 4, at ¶¶ 5–6. The remaining 52 counties conduct English-only elections in
that they, among other things, only provide ballots in English and provide
limited support for Spanish speakers. This lack of support includes a lack of
Spanish sample ballots and a lack of bilingual election personnel. See generally
ECF No. 2, at 6–7. Plaintiffs have identified 32 such counties with Puerto Rican
populations (“the Counties”). 6
Plaintiff Marta Valentina Rivera Madera was born in Santa Isabel,
Puerto Rico. ECF No. 25, at ¶ 2. She attended elementary, middle, and high
school in San Juan, Puerto Rico where instruction was mostly in Spanish. Id.
Spanish is her first language and she does not read, speak, or understand
English well. Id. at ¶¶ 4–5.
In September 2017, Hurricane Maria devastated Puerto Rico. As a direct
result of that natural calamity, Ms. Rivera Madera moved to Gainesville,
Florida where her daughter lives in October. Id. at ¶ 3. Ms. Rivera Madera
would like to vote in the November 2018 elections. Id. at ¶ 8. She believes she

6 These counties are Alachua, Bay, Brevard, Charlotte, Citrus, Clay, Columbia, Duval, Escambia,
Flagler, Hernando, Highlands, Indian River, Jackson, Lake, Leon, Levy, Manatee, Marion,
Martin, Monroe, Okaloosa, Okeechobee, Pasco, Putnam, St. Johns, St. Lucie, Santa Rosa,
Sarasota, Sumter, Taylor, and Wakulla. Plaintiffs were not able to identify Puerto Rican
populations in the remaining 20 Florida counties that conduct English-only elections.

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will not be able to vote effectively without access to Spanish-language election
materials.
Plaintiffs Mi Familia Vote Education Fund, Hispanic Federation, Faith
in Florida, UnidosUS, and Vamos4PR (“Organizational Plaintiffs”) are nonprofit organizations dedicated to, among other things, community organizing
and promoting civic engagement—including voter outreach—in the Latino
community. ECF No. 2, Ex. 5, at ¶¶ 2–6, Ex. 6, at ¶¶ 3–6, Ex. 7, at ¶¶ 3–5, Ex.
8, at ¶¶ 3–5, Ex. 9, at ¶¶ 2–4. These organizations have been especially
engaged in voter outreach to the Puerto Rican population in Florida following
Hurricane Maria. ECF No. 2, at 8. Part of this outreach involves securing
Spanish-language ballots and election materials for Spanish-speaking voters
in those counties not currently providing those materials. ECF No. 2, Ex. 5, at
¶ 10, Ex. 6, at ¶ 5–6, Ex. 7, at ¶ 5, Ex. 8, at ¶ 6, Ex. 9, at ¶ 6.
Some of the Organizational Plaintiffs have actively sought to secure
Spanish-language election materials in Florida counties with large Puerto
Rican populations that did not already provide such materials. ECF No. 3, at
¶¶ 4–10. These Plaintiffs sent letters to 13 allegedly non-complying counties
in April and followed up in June. 7 Id. at ¶¶ 5 & 8. Ultimately, the counties

Those counties were Alachua, Brevard, Clay, Duval, Hernando, Highlands, Lake, Leon,
Manatee, Marion, Pasco, Sarasota, and St. Lucie. ECF No. 3, at ¶ 5.
7

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declined to commit to providing official Spanish-language ballots for the
November 2018 election. Id. at ¶ 10.
The Plaintiffs brought suit in this Court on August 16, 2018. Plaintiffs
are suing to enforce Section 4(e) of the Voting Rights Act in 32 counties (“the
Counties”) that contain Puerto Rican populations but currently conduct
English-only elections. They move for preliminary injunction and seek to
enjoin Defendants to provide bilingual ballots, sample ballots, absentee and
early voting applications and ballots, provisional ballots, voter registration
forms, voting instructions, voter information, polling place notifications, and
polling place signage, to all be created by a certified translator, and to ensure
that all election information is digitally available in Spanish. ECF No. 2, at 31.
II
This Court first addresses Defendant Detzner’s motion to dismiss. The
Secretary of State predictably attempts to evade federal jurisdiction by
challenging Plaintiffs’ standing, asserting sovereign immunity, and claiming
Plaintiffs have failed to state a claim. ECF No. 42, at 3–15. These arguments
are not persuasive.
A
First, the Secretary of State claims he has no relevant power over the
county supervisors of elections. Specifically, Defendant Detzner argues that
Plaintiffs have failed to establish the causation element of standing, one of
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three necessary requirements for a party to sue another, along with injury and
redressability. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992). This
argument is not convincing.
Causation can be established through a party’s action or inaction. See,
e.g., Massachusetts v. E.P.A., 549 U.S. 497, 523 (2007) (holding that the
Environmental Protection Agency’s “refusal to regulate” certain emissions
contributes to plaintiffs’ injury). A party must show “its injury was fairly
traceable” to Defendant Detzner. Hollywood Mobile Estates Ltd. v. Seminole
Tribe, 641 F.3d 1259, 1265 (11th Cir. 2011). 8
As this Court notes with tiresome regularity, Defendant Detzner is
Florida’s “chief election officer.” Fla. Stat. § 97.012; see also League of Women
Voters v. Detzner, 314 F. Supp. 3d 1205, 1211 (N.D. Fla. 2018), Fla. Democratic
Party v. Scott, 215 F. Supp. 3d 1250, 1255 (N.D. Fla. 2016), and Fla. Democratic
Party v. Detzner, 2016 WL 6090943, at *5 (N.D. Fla. Oct. 16, 2016). This
statutory job description is not window dressing. The Secretary of State must
“[o]btain and maintain uniformity in the interpretation and implementation of
the election laws” and promulgate rules for the “proper and equitable
interpretation and implementation” of election laws. Fla. Stat. § 97.012(1).

Hollywood Mobile is distinguishable because the plaintiffs “failed to allege an action of the
Secretary that has caused . . . any injury.” Id. at 1265–66. There, “the Secretary played no role”
in the alleged injury. Id. at 1266. Here, Plaintiffs allege Defendant Detzner’s actions or lack of
actions directly were, at minimum, fairly traceable to their alleged injuries.
8

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Additionally, the Department of State “shall have general supervision and
administration of the election laws, corporation laws and such other laws as
are placed under it by the Legislature.” Fla. Stat. § 15.13. 9
Under rules the Department of State has promulgated, “[b]allots shall
be translated into other languages that are required by law or court order.”
Fla. Admin. Code. R. 1S-2.032 (2018) (emphasis added). This rule is the
Secretary of State’s own affirmative acknowledgment of his responsibilities,
passed pursuant to state law. Fla. Stat. § 97.012(1). There is no qualifying
language in the rule. There is no asterisk after the provision stating “except
for the Voting Rights Act of 1965.” This Court does not—and cannot—read a
limitation into this provision.
Defendant Detzner has the responsibility to enforce the Department of
State’s rules on each county supervisor of elections. Fla. Stat. § 97.012(14). He
also has the responsibility to “[p]rovide written direction and opinions to the
supervisors of elections on the performance of their official duties with respect
to . . . rules adopted by the Department of State.” Fla. Stat. § 97.012(16). This
responsibility surely includes the Department’s affirmative requirement that
“[b]allots shall be translated into other languages that are required by law”—
such as the 53-year-old Voting Rights Act. Fla. Admin. Code. R. 1S-2.032.

The statute refers to all election laws. The modifying phrase “laws as are placed under it by the
Legislature” only qualifies “such other laws.” Fla. Stat. § 15.13.
9

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Defendant seems to admit as much—“Rule 1S-2.032(3) of the Florida
Administrative Code merely tells supervisors to follow the law and court
orders.” ECF No. 42, at 10.
Accordingly, the Secretary’s failure to require or ensure compliance with
the Voting Rights Act and the Department of State’s own rule is, at a
minimum, “fairly traceable” to Plaintiffs’ alleged injuries. Lujan, 504 U.S. at
590 (internal quotation marks omitted).
B
Defendant Detzner’s sovereign immunity argument is also unpersuasive
for similar reasons. Congress abrogated state sovereign immunity in passing
Section 4(e) of the Voting Rights Act. The provision “prohibit[s] the States from
conditioning the right to vote of [Puerto Ricans] on ability to read, write,
understand, or interpret any matter in the English language.” 52 U.S.C. §
10303(e)(1). This unambiguous prohibition on the states from conditioning the
right to vote “unequivocally expresse[s]” an intent to abrogate state sovereign
immunity. Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 55 (1996); cf. Lewis
v. Governor of Alabama, 896 F.3d 1282, 1294 (11th Cir. 2018) (“Congress
validly abrogated state sovereign immunity in § 2 of the Voting Rights Act.”).
Moreover, Congress “has acted pursuant to a valid exercise of power.” Id.
Section 4(e) of the Voting Rights Act is a “proper exercise” of Congress’s

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enforcement power under the Fourteenth Amendment’s Section 5. Katzenbach,
384 U.S. at 646.
Assuming arguendo that Congress did not abrogate sovereign immunity
in passing Section 4(e) of the Voting Rights Act, the Ex parte Young doctrine
applies. “[T]he principle of sovereign immunity is a constitutional limitation
on the federal judicial power established in Art. III.” Pennhurst State Sch. &
Hosp. v. Halderman, 465 U.S. 89, 98 (1984). Ex parte Young, however, long ago
permitted parties to sue state officials for prospective injunctive relief for
alleged continuing violations of federal law. 209 U.S. 123 (1908). A state officer
falls neatly into the Ex parte Young exception to sovereign immunity if “by
virtue of his office, [he] ha[s] some connection with the unconstitutional act or
conduct complained of.” Luckey v. Harris, 860 F.2d 1012, 1015–16 (11th Cir.
1988).
As explained above, Defendant Detzner has ample authority to enforce
election laws across the state. The Department of State has a rule
acknowledging the necessity of bilingual ballots when required by law. Fla.
Admin. Code. R. 1S-2.032. Even so, Defendant Detzner argues that he “has no
power under state law to compel 32 separately elected constitutional officers
to comply with federal law.” ECF No. 42, at 9 (emphasis in original). Not quite.
State law and the Secretary’s regulations outlining his responsibilities make
clear that he does have power—and responsibility—to comply with federal law.
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The Department of State, after all, “shall have general supervision and
administration of the election laws.” Fla. Stat. § 15.13. Not some election laws.
The election laws. Moreover, Defendant must provide written guidance to
county supervisors to comply with Department regulations. Fla. Stat. §
97.012(16). Defendant has the power and responsibility to enforce Department
regulations. Fla. Stat. § 97.012(14) (Secretary has responsibility to “[b]ring and
maintain such actions at law or in equity by mandamus or injunction to enforce
the performance of any duties of a county supervisor of elections . . .”)
(emphasis added). And the regulations require bilingual ballots when “the
law”—not just “state law”—requires them.
It is true that Ex parte Young may not apply “where the officer who is
charged has no authority to enforce the challenged statute.” Summit Med.
Assocs. v. Pryor, 180 F.3d 1326, 1341–42 (11th Cir. 1999). But when Florida’s
chief election officer’s regulations necessitate translated ballots when required
by law, then it is evident the state officer has abundant authority to enforce
the challenged statute. His authority thwarts his sovereign immunity claim.
C
Finally, Plaintiffs have stated a claim for relief against the Secretary of
State. Plaintiffs allege that Defendant Detzner “authorizes and permits the
Counties to provide English-only” materials by “not requir[ing] the Counties to
provide bilingual ballots or Spanish-language election materials, instructions,
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or assistance.” ECF No. 1, at 25. Accepting these facts as true—which this
Court must do at the motion to dismiss stage, see Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555–56 (2007)—Plaintiffs have stated a claim for
which relief can be granted. To survive a motion to dismiss, Plaintiffs need not
provide the name, age, and address of every Puerto Rican in Florida who lacks
proficiency in English. Estimates, especially when they come from a qualified
expert, provide sufficient basis for stating a claim.
Moreover, as explained above, Defendant is the state’s chief election
officer and his own regulations call for bilingual ballots when required by law.
That Plaintiffs do not live in all 32 counties at issue does not doom their claim
because Defendant is a state officer whose responsibilities to provide bilingual
ballots when required by law extend across the state.
III
Plaintiffs seek a preliminary injunction, “an extraordinary and drastic
remedy.” Suntrust Bank v. Houghton Mifflin Co., 252 F.3d 1165, 1166 (11th
Cir. 2001). To succeed on a motion for preliminary injunction, plaintiffs bear
the burden of showing they have a substantial likelihood of success on the
merits, an injunction is necessary to prevent irreparable harm, the balance of
the equities tip in favor of the movants, and the injunction would serve the
public interest. Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008); see also
Wreal, LLC v. Amazon.com, Inc., 840 F.3d 1244, 1247 (11th Cir. 2016). A
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preliminary injunction “should not be granted unless the movant clearly
carries its burden of persuasion on each of these prerequisites.” Suntrust Bank,
252 F.3d at 1166. This Court addresses each of the four requirements for the
issuance of a preliminary injunction.
A
Plaintiffs have established a substantial likelihood of success on the
merits. The Voting Rights Act is clear. Singling out those “persons educated in
American-flag schools in which the predominant language was other than
English,” the Act “prohibit[s] the States from conditioning the right to vote of
such persons on ability to read, write, understand, or interpret any matter in
the English language.” 52 U.S.C. § 10303(e)(1). No person “shall be denied the
right to vote in any Federal, State, or local election because of his inability to
read, write, understand, or interpret any matter in the English language” if
educated in a school “in which the predominant classroom language was other
than English.” 52 U.S.C. § 10303(e)(2). 10 Congress explicitly passed Section
4(e) to assist Puerto Rican voters. Katzenbach, 384 U.S. at 645 n.3.

The Voting Rights Act of 1965 offered these protections to anyone who completed sixth grade
in any non-English language school. Following the 1970 amendment the Act, however, Section
4(e) now “prohibit[s] the states from conditioning the right to vote of persons who attended any
number of years of school in Puerto Rico on their ability to read or understand the English
language.” Puerto Rican Org. for Political Action v. Kusper, 490 F.2d 575, 579 (7th Cir. 1973)
(emphasis added); see also 52 U.S.C. § 10501 (prohibiting the conditioning of voting rights on the
use of “any test or device,” including “demonstrat[ing] any educational achievement”).
10

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Voting in a language you do not understand is like asking this Court
decide the winner of the Nobel Prize for Chemistry—ineffective, in other words.
Courts have long held that the right to vote includes not only the right to
physically enter a polling place and fill out a ballot but also the right to
comprehend and understand what is on that ballot. See, e.g., Torres v. Sachs,
381 F. Supp. 309, 312 (S.D.N.Y. 1974) (“In order that the phrase ‘the right to
vote’ be more than an empty platitude, a voter must be able effectively to
register his or her political choice.”); Arroyo, 372 F. Supp. at 767 (“[T]he ‘right
to vote’ means more than the mechanics of marking a ballot or pulling a
lever.”); Puerto Rican Org. for Political Action v. Kusper, 350 F. Supp. 606, 610
(N.D. Ill. 1972) (“The right to vote means the right to effectively register the
voter’s political choice, not merely the right to move levers on a voting machine
or to mark a ballot.”). The right to vote, therefore, “encompasses the right to
an effective vote.” Puerto Rican Org. for Political Action v. Kusper, 490 F.2d
575, 580 (7th Cir. 1973) (emphasis added).
Courts “broadly interpret[]” Section 4(e) of the Voting Rights Act to
proscribe the conditioning of voting rights on a voter’s English-language
abilities. United States v. Berks Cty., Pa., 250 F. Supp. 2d 525 (E.D. Pa. 2003).
“Section 4(e) does not restrict or deny the franchise but in effect extends the
franchise to persons who otherwise would be denied it by state law.”
Katzenbach, 384 U.S. at 657. The plain language of this provision ensures that
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Puerto Ricans—American citizens, all of them—are not prevented from voting
in a language they may not fully understand.
There is no shortage of courts applying this law. A group of Puerto Rican
voters in New York City sued under Section 4(e), alleging New York City’s
English-only elections violated the Act. The district court observed that “[i]t is
simply fundamental that voting instructions and ballots . . . must be in Spanish
as well as English, if the vote of Spanish-speaking citizens is not to be seriously
impaired.” Torres, 381 F. Supp. at 312. The district court ordered the
defendants to “guarantee” Puerto Rican voters “their full rights to an effective
vote” and ordered the defendants to provide bilingual election materials. Id. at
313. Similarly, a district court determined that Philadelphia’s English-only
elections meant “plaintiffs cannot cast an ‘informed’ or ‘effective vote without
demonstrating an ability to comprehend the registration and election forms
and the ballot itself”—an impermissible conditioning of their right to vote on
their ability to read and comprehend English. Arroyo, 372 F. Supp. at 767. The
court permanently enjoined the city from operating English-only elections and
ordered officials to provide Spanish-language ballots and assistance, among
other things. Id. at 768. Finally, Puerto Rican voters sued Chicago officials
alleging violations of Section 4(e), which concluded when a district court
ordered remedial measures only eight days before the November 1972
elections. Kusper, 350 F. Supp. at 606.
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Nothing in Section 4(e)’s plain language indicates any numerical
threshold to trigger its protections. No court has even hinted that Section 4(e)
contains a numerical requirement. Defendants in Berks County claimed that
Section 4(e) could “lead to the eventual result that bilingual ballots and voting
materials be provided in every voting precinct in the country with even a single
limited-English proficient voter of Puerto Rican descent, educated in Spanish
in an American-flag school in Puerto Rico.” Berks Cty., 250 F. Supp. 2d at 537.
The district court observed that not all the precincts the community at issue
were the target of the plaintiff’s proposed injunctive relief. Even so, the court
was “guided by the plain language of Section 4(e),” which it found clear and
due to be interpreted according to its plain meaning. Id.
Here, Plaintiffs only request a preliminary injunction for the Counties
that contain Puerto Rican populations who were either born in Puerto Rico or
speak English less than “very well.” This request is fewer than the 52 Florida
counties that conduct English-only elections. Plaintiffs tailored their lawsuit
to exclude the remaining 20 counties, which presumably have a de minimis
Puerto Rican population, if any.
Meanwhile,

Plaintiffs

offer

more-than-competent

evidence

that

thousands of citizens in the Counties speak English less than “very well.” ECF

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No. 2, Ex. 2 (“Smith Report”). 11 First, expert Dr. Daniel Smith draws from the
2015 American Community Survey of the United States Census Bureau and
determines that more than 30,000 individuals of Puerto Rican heritage lack
full English proficiency. Id. at 7–8. Additionally, Dr. Smith examined the
number of Florida voters born in Puerto Rico. In November 2017, there were
approximately 200,000 registered voters in Florida who were born in Puerto
Rico. More than 36,500 of them currently live in one of the 32 counties at issue
in this case. Id. at 10–13.
Defendant Detzner argues these numbers fail to clearly establish a
likelihood of success on the merits because Dr. Smith’s analysis involved
estimates, degrees of uncertainty, and qualifying language such as “more likely
than not.” ECF No. 42, at 17. This argument is faulty for the simple reason
that large datasets of populations almost always include estimates or degrees
of uncertainty. Taking Defendant’s argument to its logical endpoint would
mean that the American Community Survey—or any data that includes
estimates or degrees of uncertainty, even if they run through the analysis of a
respected political scientist—can never be used as evidence in a court’s
consideration of a preliminary injunction.

This Court finds Dr. Smith’s report to be credible, his methodology sound, and his sources, such
as the American Community Survey, to be reliable. Defendant Detzner attempts to paint Dr.
Smith as having “no obvious expertise in . . . statistics, demographics, or linguistics.” ECF No. 42,
at 17. A quick glance at Professor Smith’s 18-page curriculum vitae will suggest fewer more
qualified individuals to provide expertise on the subject of this litigation.

11

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This Court recognizes some caveats about the numbers Plaintiffs’ expert
proffers. First, there is likely significant overlap between two groups of Puerto
Rican individuals Dr. Smith identifies; many of the registered voters identified
as born in Puerto Rico may also speak English less than “very well.” Second,
this Court recognizes these numbers represent conservative estimates. See,
e.g., Smith Rep., at 12 (noting that some registration forms analyzed are more
than six months old and do not include any Puerto Ricans who relocated after
Hurricane Maria). It is no secret that thousands of Puerto Ricans have moved
to Florida in recent years, particularly in the devastating wake of Hurricane
Maria and the controversial government response to the disaster. 12 Many, like
Ms. Rivera Madera, have moved here permanently. The American Community
Survey from 2015 necessarily does not include these 2017 and 2018
transplants.
As noted above, Section 4(e) does not contain a numerical threshold to
trigger its protections. There may be understandable consternation about

12 See, e.g., Mary Shankin & Ahelaide Chen, Puerto Rican Population Growth Reshapes Central
Florida, Orlando Sentinel (Dec. 7, 2017), http://www.orlandosentinel.com/classified/realestate/osbz-florida-county-puerto-rican-population-growth-20171207-story.html; Elise Vieback, & Joel
Achenbach, Puerto Ricans Are A Surging, Outraged Political Force in Florida in the Aftermath of
Maria, WASH. POST (Oct. 6, 2017), https://www.washingtonpost.com/powerpost/in-florida-puertoricans-are-a-surging-political-force--and-outraged-by-trumps-response-to-maria/2017/10/06
/e7389e7a-aa29-11e7-b3aa-c0e2e1d41e38_story.html; Michael Tackett, An Exodus From Puerto
TIMES
(Oct.
6,
2017),
Rico
Could
Remake
Florida
Politics,
N.Y.
https://www.nytimes.com/2017/10/06/us/politics/puerto-rico-florida-voters.html; Kenya Downs,
Puerto Rican Voter Surge in Florida is No Surprise, PBS.org (Nov. 8, 2016),
https://www.pbs.org/newshour/politics/is-puerto-ricans-movement-to-mainland-swayingelections.

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expending resources to accommodate what may be a handful of registered
voters. For example, Dr. Smith identifies 24 adults of Puerto Rican heritage
who speak English less than “very well” in Wakulla County, Florida; just four
voters in Taylor County were born in Puerto Rico. Id. at 15 & 9. Even so, this
Court cannot read any numerical requirements into Section 4(e)’s plain
language. Moreover, Plaintiffs have tailored their claims to only 32 counties.
In addition to 13 counties covered by another provision of the Voting Rights
Act, see supra at 3, and two counties not covered by this provision that
nevertheless provide Spanish ballots, there remain 20 counties that are not
impacted by Plaintiffs’ claims. Presumably, these counties have a negligible
non-English-speaking Puerto Rican population and therefore do not require
Spanish election materials, even under the plain language of Section 4(e).
In 2013, African Americans were relieved to learn that “things have
changed” in the South in terms of voting rights. Shelby Cty., Ala. v. Holder,
570 U.S. 529, 547 (2013); but see N.C. State Conf. of NAACP v. McCrory, 831
F.3d 204, 214 (4th Cir. 2016) (describing how North Carolina election laws
passed on the day after Shelby County decision “target[ed] African Americans
with almost surgical precision”); Veasey v. Abbott, 830 F.3d 216, 264–65 (5th
Cir. 2016) (affirming finding that Texas voter identification law had “a
discriminatory effect on minorities voting rights in violation of Section 2 of the
Voting Rights Act”); Terrebone Par. Branch NAACP v. Jindal, 274 F. Supp. 3d
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395, 462 (M.D. La. 2017), appeal dismissed sub nom. Fusilier v. Edwards, 2017
WL 8236034 (5th Cir. Nov. 14, 2017) (finding racially discriminatory purpose
in maintaining at-large judicial districts); Perez v. Abbott, 253 F. Supp. 3d 864,
955 (W.D. Tex. 2017) (“The Court finds that this evidence persuasively
demonstrates that mapdrawers intentionally packed and cracked on the basis
of race (using race as a proxy for voting behavior) with the intent to dilute
minority voting strength.”); Patino v. City of Pasadena, 230 F. Supp. 3d 667,
728 (S.D. Tex. 2017) (finding city council’s electoral scheme “disproportionately
and discriminatorily dilute[d] Latino minority voting strength” in violation of
the Fourteenth Amendment). While the Supreme Court invalidated Section
4(b) of the Voting Rights Act pursuant to that astute observation, the voting
rights of Puerto Ricans remain explicitly protected by Section 4(e). If and until
the day comes when those protections are invalidated by something like the
heretofore unknown “tradition of equal sovereignty” among the states, Shelby
Cty., 570 U.S. at 544, the plain meaning of Section 4(e) controls. Spanishlanguage voting materials for Spanish-speaking American citizens educated in
Puerto Rico means Spanish-language voting materials for Spanish-speaking
American citizens educated in Puerto Rico. “Section 4(e) thereby enables the
Puerto Rican minority better to obtain perfect equality of civil rights and the
equal protection of the laws.” Katzenbach, 384 U.S. at 652–53.

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B
Plaintiffs must also demonstrate they will suffer irreparable injury
without a preliminary injunction. Siegel v. Lepore, 234 F.3d 1163, 1176 (11th
Cir. 2000) (citing McDonald’s Corp. v. Robertson, 147 F.3d 1301, 1306 (11th
Cir. 1998)).
“An injury is ‘irreparable’ only if it cannot be undone through monetary
remedies.” Cunningham v. Adams, 808 F.2d 815, 821 (11th Cir. 1987) (quoting
Cate v. Oldham, 707 F.2d 1176, 1189 (11th Cir. 1983)). “The possibility that
adequate compensatory or other corrective relief will be available at a later
date, in the ordinary course of litigation, weighs heavily against a claim of
irreparable harm.” Sampson v. Murray, 415 U.S. 61, 90 (1974). Accordingly,
irreparable injury is presumed when “[a] restriction on the fundamental right
to vote” is at issue. Obama for Am. v. Husted, 697 F.3d 423, 436 (6th Cir. 2012).
Once the election comes and goes, “there can be no do-over and no redress.”
League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 247 (4th Cir.
2014). As this Court explained in another elections-related preliminary
injunction order, “[t]his isn’t golf: there are no mulligans.” Fla. Democratic
Party v. Scott, 215 F. Supp. 3d 1250, 1258 (N.D. Fla. 2016).
Here, a preliminary injunction would prevent harm in the form of an
English-only election for thousands of citizens who speak English less than
“very well”—if at all. These individuals would face the false decision to vote in
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a manner they do not meaningfully comprehend or not vote at all. That decision
is antithetical to what our democratic government stands for. In short,
Plaintiffs have established that they would suffer irreparable harm in the
absence of a preliminary injunction.
C
In considering the balance of the equities, this Court “must balance the
competing claims of injury and must consider the effect on each party of the
granting or withholding of the requested relief.” Amoco Prod. Co. v. Gambell,
480 U.S. 531, 542 (1987).
If this Court denies all relief to Plaintiffs, they will lose their right to a
meaningful vote. ECF No. 25, at ¶¶ 5 & 8. This Court would, in effect, be
authorizing disenfranchisement. 13 If this Court grants all Plaintiffs’ requested
relief, Defendants will be required to spend considerable time and effort to
comply with the Voting Rights Act. They would have to do so in the lead-up to
the November general election, which involves significant planning, logistics,
and oversight—all of which is well-documented in the record.
A state “indisputably has a compelling interest in preserving the
integrity of its election process.” Eu v. San Francisco Cty. Democratic Cent.

13 This Court notes that Plaintiffs have not sat on their rights. They filed this lawsuit only after
reaching out to the Counties to comply with Section 4(e); many Counties politely rebuffed
Plaintiffs or demurred. See, e.g., ECF No. 3, Exs. N–X & LL–PP. In short, Plaintiffs have acted
with “reasonable diligence.” Benisek v. Lamone, 138 S.Ct. 1942, 1944 (2018).

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Comm., 489 U.S. 214, 231 (1989). The risk that “orderly elections” would be
disrupted by granting all of Plaintiffs’ requested relief is not trivial. Benisek,
138 S.Ct. at 1944.
This Court has reviewed the many pages of affidavits and testimony from
Florida’s election officials and agrees that granting all of Plaintiffs’ requested
relief would place significant hardships on election administrators. See
generally ECF Nos. 40 & 42, Exs. 1 & 2. For example, Director of Elections
Maria Matthews explains that preparing ballots is “a critical, complex, and
detail-oriented process” wherein each precinct may need a different ballot style
and contents. ECF No. 42, Ex. 1, at ¶ 14. Requiring official bilingual or
separate Spanish ballots would, in the testimony of one Alachua County
official, be “technologically and practically impossible” in time for the
November 2018 elections. ECF No. 41, Ex. 2, at ¶ 5. A bilingual ballot would
“radically alter[] the ballot layout” and would “require[] a larger ballot for an
election than the equivalent English only ballot”—a change county officials
simply do not have the time and resources to implement. Id. at ¶ 7. Similarly,
a separate Spanish ballot would require significant software changes, which
would then necessitate testing and verification—time and resources the county
does not have. Id. at ¶ 8. Some counties already have ordered supplies, others
have already begun training poll workers, and many county supervisors
explain their budgets have already been set for the current election cycle.
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Courts have recognized that preliminary injunctions before elections will
“place administrative and financial burdens” on non-complying jurisdictions.
Johnson v. Halifax Cty., 594 F. Supp. 161, 171 (E.D.N.C. 1984). “Such burdens,
however, are not . . . undue in view of the otherwise irreparable harm to be
incurred by plaintiffs.” Id. Administrative expense, in other words, is “far outoutweighed by the fundamental right at issue.” Berks Cty., 250 F. Supp. 2d at
541; see also United States v. Georgia, 892 F. Supp. 2d 1367, 1377 (N.D. Ga.
2012) (describing administrative, time, and financial burdens as “minor when
balanced against the right to vote, a right that is essential to an effective
democracy”). If the issue here was purely financial, this Court might be singing
a different tune.
This Court must balance the plain language of the Voting Rights Act’s
Section 4(e) guaranteeing Puerto Ricans a right to a meaningful vote against
the considerable logistical, financial, and technological hurdles that hardworking and dedicated election officials face at this juncture in the election
cycle. While other district courts in past decades have afforded relief on tighter
timelines under different circumstances, see Berks Cty., 250 F. Supp. 2d at 541
(justifying, in part, preliminary injunction issued two months before election
by citing other injunctions issued within 24, 18, and eight days before election),
this Court is persuaded by the numerous affidavits stating that granting all of

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Plaintiffs’ requested relief would be impossible—or close to impossible—under
the unique facts of Florida’s election administration system in the fall of 2018.
D
The public interest is always served by more equitable, easier access to
the ballot. Additionally, state and local officials serve the public interest when
they conform their conduct to federal law’s requirements. This is especially so
when the law is so clear in its requirements. “Ordering Defendants to conduct
elections in compliance with the Voting Rights Act so that all citizens may
participate equally in the electoral process serves the public interest by
reinforcing the core principles of our democracy.” Berks Cty., 250 F. Supp. at
541. This interest includes access to the ballot in a language the voter can
comprehend.
IV
It is remarkable that it takes a coalition of voting rights organizations
and individuals to sue in federal court to seek minimal compliance with the
plain language of a venerable 53-year-old law. Due to the timeline of this
lawsuit and the looming deadlines Florida election officials face, this Court
does not order all of Plaintiffs’ requested relief. Rather, it orders attainable
compliance with Section 4(e). In doing so, this Court recognizes that some
counties already provide some of the services this Court orders.

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Accordingly,
IT IS ORDERED:
1. Consistent with the Secretary of State’s responsibility to “provide
written direction . . . to the supervisors of elections on the performance
of their official duties with respect to . . . rules adopted by the
Department of State,” Fla. Stat. § 97.012(16), and the Department of
State’s rule that “[b]allots shall be translated into other languages that
are required by law or court order,” Fla. Admin. Code. R. 1S-2.032, the
Secretary shall provide written direction to the supervisors of elections
in the 32 counties identified supra at 4 n.6 as follows:
a. The Supervisor of Election shall make available a facsimile
sample ballot in Spanish to voters who fall within the ambit of
Section 4(e) of the Voting Rights Act. The sample ballots shall
have matching size, information, layout, placement, and fonts
as an official ballot does. The sample ballots need not be
completely identical; for example, the sample ballot need not
contain bar codes or other markings that official ballots may
have or be printed on the same stock, etc.
b. As to render the above a meaningful remedy, the Supervisor of
Election shall publish the same facsimile sample ballot on their
website with Spanish-language directions. To the extent
English-language sample ballots are mailed, published, or
advertised, such sample ballots must also include the sample
Spanish-language ballot. The Supervisor of Election shall also
provide signage in Spanish at polling places making voters
aware of such sample ballots.
c. This Order does not preclude additional measures to provide
assistance, as is currently being implemented under Supervisor
Barton, such as hiring additional bilingual poll workers,
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creating or staffing a bilingual voter assistance hotline, offering
bilingual assistance to disabled Spanish voters, or publishing
bilingual voter guides.
2. The Secretary of State shall copy this Order in his written direction to
the supervisors of elections.
3. The Secretary of State shall provide this Court notice of compliance with
this Order on or before Wednesday, September 12, 2018.
4. The Secretary of State’s motion to dismiss, ECF No. 42, is DENIED.
5. Plaintiffs’ motion for preliminary injunction, ECF No. 2, is GRANTED
in part and DENIED in part. It is GRANTED insofar as the Counties
shall provide signage, sample facsimile ballots, and notice in Spanish on
their websites. It is DENIED insofar as the Counties shall not be
required to provide official Spanish-language ballots and such other
relief requested by Plaintiffs which this Court deems infeasible at this
late juncture.
SO ORDERED on September 7, 2018.
s/Mark E. Walker
____
Chief United States District Judge

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