Case 4:18-cv-00525-MW-CAS Document 5 Filed 11/12/18 Page 1 of 33

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
)
LEAGUE OF WOMEN VOTERS OF
)
FLORIDA; COMMON CAUSE
)
FLORIDA; and JOANNE LYNCH AYE,
)
)
Plaintiffs,
)
) CASE NUMBER
v.
)
)
RICHARD L. SCOTT, in his official
)
capacity as Governor of the state of Florida, )
)
Defendant.
)
)
MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’
EMERGENCY MOTION FOR A TEMPORARY RESTRAINING ORDER
AND PRELIMINARY INJUNCTION

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TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT ........................................................................... 1
FACTUAL BACKGROUND................................................................................. 2
I. The Governor’s Authority over Elections ....................................................... 2
II. Governor Scott’s Race for Senate and His Use of Official Authority to
Advance His Candidacy ................................................................................. 3
ARGUMENT .......................................................................................................... 8
I. Plaintiffs Have a Substantial Likelihood of Success on the Merits. ............... 9
A.

Plaintiffs are substantially likely to prevail on their Due Process claim in
light of Scott’s demonstrated intention to use his official powers to
intimidate election officials....................................................................... 9

B.

Plaintiffs Are Substantially Likely to Prevail on Their Claim That
Defendant’s Use of Governmental Power to Influence the Election
Results Violates the First Amendment. .................................................. 17

C.

Plaintiffs Are Substantially Likely to Prevail on Their Claim That
Defendant’s Use of Governmental Power to Influence the Election
Results Violates the Right to Vote. ......................................................... 19

II. The Remaining Factors for the Issuance of a TRO Weigh in Plaintiffs’
Favor............................................................................................................. 21
CONCLUSION ..................................................................................................... 23
CERTIFICATE OF COMPLIANCE ................................................................. 27
CERTIFICATE OF SERVICE ........................................................................... 27

i

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TABLE OF AUTHORITIES
Page(s)
Cases
Anderson v. Celebrezze, 460 U.S. 780 (1983) .................................................. 17, 20
Ass’n of Nat’l Advertisers, Inc. v. FTC, 627 F.2d 1151 (D.C. Cir. 1979) .............. 11
Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) ................................. 10
Burdick v. Takushi, 504 U.S. 428 (1992) ............................................................... 20
California Democratic Party v. Jones, 530 U.S. 567 (2000) ................................. 17
Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009) .......................... 11, 14, 15
United States v. Classic, 313 U.S. 299 (1941) ....................................................... 19
Crawford v. Marion Cty Elec. Bd., 553 U.S. 1818 (2008) ..................................... 20
Curry v. Baker, 802 F.2d 1302 (11th Cir. 1986) .................................................... 10
Duncan v. Poythress, 657 F.2d 691 (5th Cir. Unit B Sept. 1981) .......................... 10
Elrod v. Burns, 427 U.S. 347 (1976) ................................................................ 17, 18
Gibson v. Berryhill, 411 U.S. 564 (1973) ............................................................... 11
Gray v. Sanders, 372 U.S. 368 (1963).................................................................... 19
Hennings v. Grafton, 523 F.2d 861 (7th Cir. 1975) ............................................... 10
In re Murchison, 349 U.S. 133 (1955) ................................................................... 10
Joyner v. Browning, 30 F. Supp. 512 (W.D. Tenn. 1939) ...................................... 10
League of Women Voters of N. Carolina v. North Carolina,
769 F.3d 224 (4th Cir. 2014) ............................................................................... 21
Martin v. Kemp, No. 1:18-CV-4776-LMM, 2018 WL 5276242
(N.D. Ga. Oct. 24, 2018), appeal filed,
No. 18-14503 (11th Cir. Oct. 29, 2018) .............................................................. 21
Nat’l Student Ass’n v. Hershey, 412 F.2d 1103 (D.C. Cir. 1969) .......................... 19
Obama for Am. v. Husted, 697 F.3d 423 (6th Cir. 2012) ....................................... 21
Reynolds v. Sims, 377 U.S. 533 (1964) .................................................................. 19
Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1223 (11th Cir. 2005) ..................... 9
Stubbs v. Fla. State Fin. Co., 159 So. 527 (Fla. 1935). .......................................... 22
United States v. Florida, 870 F. Supp. 2d 1346 (N.D. Fla. 2012) ............................ 9
United States v. Mississippi Valley Generating Co., 364 U.S. 520 (1961) ............ 10
Vieth v. Jubelirer, 541 U.S. 267 (2004).................................................................. 17
Warf v. Bd. of Elections of Green Cty., 619 F.3d 553 (6th Cir. 2010) ................... 13
Wesberry v. Sanders, 376 U.S. 1 (1964) .......................................................... 19, 23
Williams v. Rhodes, 393 U.S. 23 (1968) ................................................................. 17
Statutes
Fla. Const. art. IV, § 7(a) .................................................................................... 3, 16
ii

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Fla. Stat. § 101.58(1) .......................................................................................... 8, 13
Fla. Stat. § 102.111 ............................................................................................. 3, 23
Fla. Stat. § 102.131 ................................................................................................. 15
Fla. Stat. § 102.141 ................................................................................................... 3
Fla. Stat. § 102.166 ................................................................................................... 3
Fla. Stat. § 104.31 ................................................................................................... 22
Fla. Stat. § 112.40 ............................................................................................... 3, 16
Fla. Stat. § 112.50 ............................................................................................... 3, 16
Other Authorities
Steve Bousquet and Elizabeth Koh, Rick Scott sues elections supervisors over vote
count, orders FDLE probe, Tampa Bay Times (Nov. 8, 2018) ............................ 4
Steve Bousquet and Nicholas Nehamas, FDLE is not investigating Broward
elections—because Gov. Scott didn’t order it, Miami Herald (Nov. 9, 2018) ...... 8
Steve Bousquet, League of Women Voters Urges Gov. Rick Scott to ‘Remove
Yourself’ from Ballot Counts, Tampa Bay Times (Nov. 11, 2018) .................... 12
Matt Dixon, After Scott requested investigation, law enforcement says no voter
fraud allegations found, Politico (Nov. 9, 2018) ............................................ 8, 12
Fla. Att’y Gen. Op. 2013-23 (2013) ......................................................................... 3
Florida Department of Law Enforcement, Our Structure ......................................... 5
Florida Department of State, Election Observation Report Ballot Duplication
Process 7 (Oct. 22-24, 2012) .............................................................................. 14
Florida Division of Elections, Voter Registration – By County and Party
(Sept. 30, 2018) ..................................................................................................... 5
Florida Election Watch, available at
https://floridaelectionwatch.gov/FederalOffices/USSenator (last visited
November 12, 2018).............................................................................................. 3
Fox News, Rick Scott files lawsuit in contested Florida Senate race
(Nov. 8, 2018) ....................................................................................................... 6
Alexandra Glorioso and Matt Dixon, Democratic Group Says Scott Misused State
Office to ‘Interfere With Election,’ Politico (Nov. 11, 2018) ............................. 11
Alex Harris and David Smiley, Broward County Officials Need Police Protection
to Tally Florida Election Results, Tampa Bay Times (Nov. 9, 2018) ............ 7, 13
John Kennedy, Rick Scott sues as recounts loom and vote margins thin, Palm
Beach Post (Nov. 8, 2018) .................................................................................... 6
James Madison, The Federalist No. 10 (1787) ....................................................... 10
Patricia Mazzei, Rick Scott Claims Rampant Fraud in Florida, as Senate and
Governor Races Tighten, N.Y. Times (Nov. 8, 2018) .................................... 5, 11

iii

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Frances Robles and Patricia Mazzei, Florida Begins Vote Recounts in Senate and
Governor’s Races, N.Y. Times (Nov. 10, 2018) .............................................. 4, 7
Gray Rohrer, et al., Florida Vote: Recounts Ordered for U.S. Senate, Governor,
Agriculture Commissioner, Orlando Sentinel (Nov. 10, 2018) ............................ 7
Arek Sarkissian, Judges side with Scott in suits against Broward, Palm Beach
election supervisors, Politico (Nov. 9, 2018) ........................................................ 6

iv

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PRELIMINARY STATEMENT
Defendant Rick Scott is a candidate for U.S. Senate in the 2018 election. As
might be expected, he is aggressively pursuing the office he seeks. Defendant Scott
is also the Governor of Florida, charged with overseeing crucial aspects of the
electoral process, appointing (and suspending) state and local election officials, and
ultimately certifying election results. Though Florida governors have engaged in
political races while in office, and may of course do so legitimately, the authority
they possess makes it especially imperative that they clearly insulate their exercise
of official power from their personal efforts to win elections. Most Florida governors
who have been political candidates while in office have appreciated and respected
this crucial distinction.
But not Governor Scott. To the contrary, he has sought to use the powers of
his office to advantage himself and disadvantage his opponent. Most egregiously,
last week he used his official platform to accuse election officials in counties he
expected to lose of criminal activity, despite having no evidence to support that
claim. Even more alarming, he purported to have deployed state law enforcement to
investigate officials in those counties. These actions would be disturbing under any
circumstances, but they are particularly problematic given the state of his Senate
race. He leads his opponent by a small enough margin to trigger an automatic
recount. This means that the millions of Florida voters whose ballots were cast last
1

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week will have the effect of their votes determined by the officials engaged in
conducting those recounts and certifying results. Governor Scott has already
misused his authority to influence that high-stakes and fast-moving process, and the
powers of his office give him the opportunity to continue to misuse his authority.
Plaintiffs are an individual Broward County voter and organizations devoted
to the democratic process whose members are Florida voters.1 These voters are
entitled to an electoral process that subjects every cast ballot to a neutral process of
determining which ballots are valid, tabulating the votes reflected on those ballots,
and certifying the ultimate results. Governor Scott has revealed his inability to
oversee a suitably neutral process. Plaintiffs therefore ask this court for emergency
relief to preclude Governor Scott from exercising authority over the conduct of the
closely contested election in which he continues to pursue his candidacy.
FACTUAL BACKGROUND
I.

The Governor’s Authority over Elections
The Governor’s Office has immense influence over election administration in

the state of Florida. The Governor is one of three members of Florida’s Elections
Canvassing Commission (“ECC”)—the body that certifies the result of Florida’s
federal, state, and multicounty elections. The ECC consists of the Governor and two

1

Hereinafter, references to Plaintiffs’ constitutional rights refer to the rights of
individual Plaintiff Joanne Lynch Aye and the members of organizational Plaintiffs
the League of Women Voters of Florida and Common Cause Florida.
2

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members of the Florida Cabinet that he selected. Compl. ¶ 13; Fla. Stat. § 102.111.
The Governor also has broad authority to quickly and unilaterally suspend members
of the county election canvassing boards from their supervisor, judge, or county
commissioner positions. Compl. ¶ 14; Fla. Const. art. IV, § 7(a); Fla. Stat. §§ 112.40,
112.50; see also Fla. Att’y Gen. Op. 2013-23 (2013). And the Governor appointed
Florida’s chief election administrator, the Secretary of State, who is in charge of—
among other things—determining whether election returns require a machine or
hand recount. Compl. ¶ 15; Fla. Stat. §§ 102.141, 102.166.
II.

Governor Scott’s Race for Senate and His Use of Official Authority to
Advance His Candidacy
Defendant is currently a candidate for the U.S. Senate. As of 7 a.m. on

November 12, he is leading his opponent, Bill Nelson, by less than 13,000 votes, or
approximately .15 percentage points. See Florida Election Watch, available at
https://floridaelectionwatch.gov/FederalOffices/USSenator (last visited November
12, 2018). Pursuant to Florida law, a candidate is entitled to a manual recount if the
margin of victory is less than .25 percentage points. See Fla. Stat. § 102.166.
Accordingly, the race has not been decided, and likely will not be until on or after

3

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November 18, 2018. Frances Robles and Patricia Mazzei, Florida Begins Vote
Recounts in Senate and Governor’s Races, N.Y. Times (Nov. 10, 2018).2
As noted above, Defendant’s statutory authorities related to elections create
an inherent potential for conflict of interest when he himself is a candidate. Beyond
that inherent potential, however, Defendant has taken overt action demonstrating
conflict of interest and bias in discharging his duties with respect to the ongoing
Senate race. Defendant has recently made clear his intention to use the power of his
office to interfere with the vote-counting process and tilt the results of the election
in his favor. Compl. ¶ 20. In particular, on November 8, 2018, Defendant Scott’s
Senate campaign, Scott for Florida, announced and held a press conference. Compl.
¶ 21; Steve Bousquet and Elizabeth Koh, Rick Scott sues elections supervisors over
vote count, orders FDLE probe, Tampa Bay Times (Nov. 8, 2018).3 The press
conference—held by Scott for Florida, not the Office of the Governor—took place
on the steps of the Florida governor’s mansion, a taxpayer-funded venue not
normally used for partisan political activity. Compl. ¶ 21.

2

Available online at https://www.nytimes.com/2018/11/10/us/florida-senategovernor-votes-recount.html.

3

Available online at https://www.tampabay.com/floridapolitics/buzz/2018/11/08/rick-scott-sues-broward-elections-supervisor-over-votecount/.
4

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At the press conference, Defendant Scott called on the Florida Department of
Law Enforcement (“FDLE”) to investigate Broward and Palm Beach Counties—
both supervised by elected Democrats—for “rampant fraud.” Compl. ¶ 24; Patricia
Mazzei, Rick Scott Claims Rampant Fraud in Florida, as Senate and Governor
Races Tighten, N.Y. Times (Nov. 8, 2018).4 Both counties have significantly more
registered Democrats than registered Republicans, and are counties upon which
Defendant Scott’s Senate race may turn. See Florida Division of Elections, Voter
Registration – By County and Party (Sept. 30, 2018).5
The Governor is the chief law enforcement officer of the State of Florida, and
one of two heads of the FDLE. Compl. ¶ 16; Florida Department of Law
Enforcement, Our Structure.6 The other head, the FDLE Commissioner, was
appointed by the Governor. Compl. ¶ 16. Despite apparently appearing at the press
conference in his role as a candidate, Defendant Scott was clearly acting in his role
as governor when he asked the FDLE, a state agency under his control, to investigate
the “unethical liberals” he accused of plotting to steal the U.S. Senate seat from him.

4

Available online at https://www.nytimes.com/2018/11/08/us/florida-recountnelson-scott-desantis-gillum.html.

5

Available online at https://dos.myflorida.com/elections/data-statistics/voterregistration-statistics/voter-registration-monthly-reports/voter-registration-bycounty-and-party/.

6

Available online at http://www.fdle.state.fl.us/About-Us/About-Us.aspx.
5

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Compl. ¶ 25. In this capacity, Defendant Scott made clear he would “not sit idly by
while unethical liberals try to steal this election.” John Kennedy, Rick Scott sues as
recounts loom and vote margins thin, Palm Beach Post (Nov. 8, 2018).7
Defendant Scott doubled down on his call for a criminal investigation into
county vote-counting operations on Fox News’s Hannity show, where he attributed
his shrinking margin to “left-wing activists, we’ve got some Democrat D.C. lawyers,
[who are] down here for one purpose—to steal this election.” Fox News, Rick Scott
files lawsuit in contested Florida Senate race (Nov. 8, 2018).8 On national television,
Defendant Scott accused local election officials of “finding as many votes as it takes
to . . . win this election” for Defendant Scott’s opponent, but made clear that he, not
his opponent, was “gonna make sure we win this.” Id. Defendant Scott’s campaign
manager has reiterated a similar message. Arek Sarkissian, Judges side with Scott in
suits against Broward, Palm Beach election supervisors, Politico (Nov. 9, 2018).9
Defendant Scott produced no evidence of the alleged fraud and there have
been no “indications of fraud,” so the FDLE has not actually opened an investigation.

7

Available online at https://www.palmbeachpost.com/news/20181108/rick-scottsues-as-recounts-loom-and-vote-margins-thin.

8

Available online at https://www.youtube.com/watch?v=sMHVcEOtJuw.

9

Available online at
https://www.politico.com/states/florida/story/2018/11/09/judges-side-with-scott-insuits-against-broward-palm-beach-election-supervisors-690950.
6

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Compl. ¶ 28; Gray Rohrer, et al., Florida Vote: Recounts Ordered for U.S. Senate,
Governor, Agriculture Commissioner, Orlando Sentinel (Nov. 10, 2018).10 Indeed,
the Florida Department of State had election monitors stationed in Broward County
during the election who, even after Defendant Scott’s public accusation, affirmed
that they have seen “no evidence of criminal activity” there. See Robles and Mazzei,
supra.
But Defendant Scott’s announcement had immediate impact: his unfounded
allegations of criminal election fraud, made from the steps of the Governor’s
mansion, caused rowdy protests that forced Broward County election officials to
request police protection for their vote-counting operation. Compl. ¶ 29; Alex Harris
and David Smiley, Broward County Officials Need Police Protection to Tally
Florida Election Results, Tampa Bay Times (Nov. 9, 2018).11 And after a recent
court hearing, the supervisor of elections of Palm Beach County was met with
protestors yelling that she should be “locked up.” Compl. ¶ 29; Rohrer, et al., supra.
Defendant Scott’s threat of law enforcement supervision of the democratic
process “underscored the lack of a clear dividing line between [Defendant’s] dual

10

Available online at https://www.orlandosentinel.com/news/politics/politicalpulse/os-florida-recount-vote-tally-deadline-20181110-story.html.

11

Available online at https://www.tampabay.com/floridapolitics/buzz/2018/11/09/broward-county-officials-need-police-protection-to-tallyflorida-election-results/.
7

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roles as candidate for higher office and his current job as governor.” Compl. ¶ 5;
Steve Bousquet and Nicholas Nehamas, FDLE is not investigating Broward
elections—because Gov. Scott didn’t order it, Miami Herald (Nov. 9, 2018)12.
Notably, Florida law already provides an established procedure for state-level
supervision of county-level election processes, making Defendant Scott’s threat to
send in state police particularly extraordinary. Compl. ¶ 34; Fla. Stat. § 101.58(1).
As recently as this past Friday—as vote-counting continues across the
state—Defendant Scott refused to disavow his unsubstantiated claims of fraud or
his call for an investigation, even in the face of two state agencies announcing that
his claims have no basis. Compl. ¶ 31; Matt Dixon, After Scott requested
investigation, law enforcement says no voter fraud allegations found, Politico
(Nov. 9, 2018).13
ARGUMENT
Plaintiffs seek a temporary restraining order (“TRO”) and preliminary
injunction pursuant to Fed. R. Civ. P. 65 that will prevent Defendant Scott from
using his authority as governor to control or influence the processing and counting

12

Available online at https://www.miamiherald.com/news/politicsgovernment/state-politics/article221407235.html.

13

Available online at
https://www.politico.com/states/florida/story/2018/11/09/after-scott-requestedinvestigation-law-enforcement-says-no-voter-fraud-allegations-found-690552.
8

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of ballots in the 2018 Florida election for U.S. Senate, and bar him from participating
in the certification of election results from the same election.
In order to obtain a temporary restraining order or a preliminary injunction, a
plaintiff must establish (1) a substantial likelihood of success on the merits, (2) that
it will suffer irreparable injury unless the injunction issues, (3) that the threatened
injury outweighs whatever damage the proposed injunction may cause a defendant,
and (4) that the injunction will not be adverse to the public interest. United States v.
Florida, 870 F. Supp. 2d 1346, 1348 (N.D. Fla. 2012) (citing Siegel v. LePore, 234
F.3d 1163, 1176 (11th Cir. 2000) (en banc)). “The purpose of a temporary
restraining order, like a preliminary injunction, is to protect against irreparable injury
and preserve the status quo until the district court renders a meaningful decision on
the merits.” Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1223, 1231 (11th Cir.
2005). To that end, a “substantial likelihood of success on the merits” requires “only
likely or probable, rather than certain, success.” Id. at 1232.
I.

Plaintiffs Have a Substantial Likelihood of Success on the Merits.
A. Plaintiffs are substantially likely to prevail on their Due Process
claim in light of Scott’s demonstrated intention to use his official
powers to intimidate election officials.
“[T]he due process clause of the fourteenth amendment prohibits action by

state officials which seriously undermine[s] the fundamental fairness of the electoral

9

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process.” Duncan v. Poythress, 657 F.2d 691, 700 (5th Cir. Unit B Sept. 1981)14; see
also Curry v. Baker, 802 F.2d 1302, 1315 (11th Cir. 1986). Due process does not
allow “wilful conduct which undermines the organic processes by which candidates
are elected.” Hennings v. Grafton, 523 F.2d 861, 864 (7th Cir. 1975). The use of
lawful executive authorities may violate due process when it is done with the
intention to impede an election. See Joyner v. Browning, 30 F. Supp. 512, 519 (W.D.
Tenn. 1939) (granting injunction to prevent governor from using law enforcement
officers and National Guard troops to intimidate voters). These principles apply with
special force where an official with power over an election process is a candidate in
an ongoing race. It is axiomatic that “no man can be a judge in his own case.” In re
Murchison, 349 U.S. 133, 136 (1955). As the Founders recognized, if an official
were to do so, “his interest would certainly bias his judgment, and, not improbably,
corrupt his integrity.” James Madison, The Federalist No. 10 (1787); see also United
States v. Mississippi Valley Generating Co., 364 U.S. 520, 562 (1961) (conflict of
interest is “an evil which endangers the very fabric of a democratic society, for a
democracy is effective only if the people have faith in those who govern”). While
the question of impermissible bias arises most often in the context of judicial

14

Decisions from the Fifth Circuit issued prior to October 1, 1981, are binding in
the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir.
1981).
10

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proceedings, see, e.g., Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 887-90
(2009), the prohibition extends to other government officials engaged in both
adjudicatory and rule-making procedures, see Gibson v. Berryhill, 411 U.S. 564, 579
(1973); Ass’n of Nat’l Advertisers, Inc. v. FTC, 627 F.2d 1151, 1170 (D.C. Cir.
1979). Both violate due process. A constitutional violation may occur even without
proof of “actual bias,” but where actual bias has been shown, there is “no doubt” that
it warrants relief. Caperton, 556 U.S. at 883.
Here, there is ample evidence that Governor Scott has sought to use his powers
to interfere with the vote-counting process and tilt the results of the election in his
favor. His Thursday evening press conference was announced by his Senate
campaign, not his state office. See Alexandra Glorioso and Matt Dixon, Democratic
Group Says Scott Misused State Office to ‘Interfere With Election,’ Politico (Nov.
11, 2018).15 Yet it was held at the official state residence, a taxpayer-funded site not
normally used for partisan political activity. At the press conference, he called on
the Florida Department of Law Enforcement to investigate the Broward Supervisor
of Elections for “rampant fraud,” even though the Florida Department of State
already had election monitors in the offices of the Broward County Supervisor of
Elections who had not reported any criminal activity. See Mazzei, supra. Scott made

15

Available online at
https://www.politico.com/states/florida/story/2018/11/11/democratic-group-saysscott-misused-state-office-to-interfere-with-election-691727.
11

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similar, unfounded allegations of fraud in a fiery appearance on Sean Hannity’s Fox
News broadcast. See Fox News, supra. Scott has also refused the organization
Plaintiffs’ written request that he recuse himself from any election-related activity.
See Compl. ¶ 35; Steve Bousquet, League of Women Voters Urges Gov. Rick Scott
to ‘Remove Yourself’ from Ballot Counts, Tampa Bay Times (Nov. 11, 2018).16
This brazen attempt to use his powers as Governor to intimidate officials
responsible for counting the votes in his Senate race does not comport with the
guarantees of due process. The fact that no investigation has apparently commenced
does not mitigate this abuse of power—it certainly constituted a credible threat that
might intimidate county election officials engaged the procedures of tabulating and
recounting ballots. Indeed, the fact that Defendant failed to muster sufficient
evidence to even commence an investigation, see Dixon, supra, underscores the
entirely improper nature of his threat: it was clearly an attempt to use the power of
his office to sway the vote without any legitimate basis. Furthermore, Defendant
Scott’s allegation of rampant fraud led to rowdy protests that caused Broward
County election officials to request police protection for their vote-counting

16

Available online at http://www.tampabay.com/floridapolitics/buzz/2018/11/11/league-of-women-voters-urges-rick-scott-to-removeyourself-from-ballot-counts/.
12

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operation, as well as crowds chanting “lock her up” at the elected county supervisors
targeted by Defendant Scott. See Harris and Smiley, supra.
Moreover, Defendant Scott’s actions in sua sponte calling for an investigation
by the FDLE represent a “significant[] depart[ure] from previous state election
practice,” making it more likely that they constitute a due process violation. See Warf
v. Bd. of Elections of Green Cty., 619 F.3d 553, 559 (6th Cir. 2010). Florida law
authorizes the Department of State to appoint deputies to investigate counties’
election processes “at any time it deems fit . . . or upon the petition of any candidate.”
Fla. Stat. § 101.58(1). During the 2012 presidential election, Mitt Romney’s
presidential campaign requested that the Division of Elections—a subdivision of the
Secretary of State’s Office—appoint observers under this provision to review the
manual ballot-duplication process that Palm Beach County Supervisor of Elections
Susan Bucher had to undertake after a ballot misprint affected some 36,000 vote-bymail ballots. See Letter from Raquel A. Rodriguez to John Boynton, Florida
Department of State (Oct. 18, 2012) (attached hereto as Ex. A). The appointment of
deputies required no action from then-Governor Scott (who was not on the ballot for
the 2012 election). The Division of Elections tasked two civilians — not law
enforcement officers — to oversee the process. The Division of Elections’ official
report in 2012 concluded that, “[f]rom first-hand observation, the observers believe
that the Palm Beach County absentee duplication process for the 2012 General

13

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Election was conducted in a fair and impartial manner that is generally consistent
with Florida Election Code.” See Florida Department of State, Election Observation
Report Ballot Duplication Process 7 (Oct. 22-24, 2012).17
Under these circumstances, it would be an unconstitutional conflict of interest
for Defendant Scott to play a role in certifying the results of this election. Plaintiffs
need not definitively prove that Defendant Scott is actually biased in his own favor
in order to prevail in this litigation. As long as there is an objective risk that he is
biased, he should not be permitted to participate in judging outcomes in his own
election. See Caperton, 556 U.S. at 886. Recusal is required whenever, “under a
realistic appraisal of psychological tendencies and human weakness,” the decisionmaker’s interest in the proceedings “poses such a risk of actual bias or prejudgment”
that it jeopardizes due process. Id. at 883-84 (quoting Withrow v. Larkin, 421 U.S.
35, 47 (1975)).
Caperton is instructive. In that case, the Court considered whether an elected
justice could, consistent with due process, participate in a lawsuit involving his
principal political patron. Without determining that the judge in the case actually
harbored bias in favor of his patron, the Supreme Court concluded that the patron’s
“significant and disproportionate influence—coupled with the temporal relationship

17

Available online at https://dos.myflorida.com/media/693813/palm-beach-countyelection-observation-report-oct-22-24-2012.pdf.
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between the election and the pending case” created a “probability of actual bias [that]
rises to an unconstitutional level.” Id. at 886-87. Caperton made abundantly clear
that, while there may be close cases, a due process violation occurs whenever the
objective risk of bias is “extreme.” Id.
Governor Scott’s conduct to date demonstrates an objective risk that he will
be biased towards his own candidacy if he is permitted to exercise authority over the
elections process. Under Florida law, the governor has a variety of authorities over
elections and election officials. The governor is ordinarily responsible for certifying
the results of Florida’s senatorial election as a member of the Elections Canvassing
Commission—a power especially susceptible to abuse in a race, like the current
Senate election, that is headed toward a recount and may involve contested questions
of whether county-level results are proper and warrant certification. Indeed, the
Commission has the power to exclude returns from county canvassing boards if it is
“unable to determine the true vote for any office.” Fla. Stat. § 102.131. Defendant
Scott’s inherent conflict of interest as a candidate in the election, as well as his
statement that his rivals are trying to “steal” the election, his unfounded allegations
of “rampant fraud,” his credible threat to deploy state law enforcement agents in
response to those unfounded allegations, and his attacks on particular Supervisors of
Elections, all tend to show an objective risk that bias would infect his decisions with
respect to these authorities. The risk of bias is even more extreme than it was in

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Caperton, where the risk of bias arose indirectly from the interest of the judge’s
political patron; here, the risk of bias arises directly from Defendant Scott’s interest
in his own election to office.
Moreover, Defendant Scott’s threats and the public backlash they have set in
motion create a real, present, and continuing threat that Governor Scott will
improperly influence the election process during the ongoing recount. The governor
also has broad power to immediately suspend canvassing board members from their
positions as supervisor of elections, judge, or county commissioner. See Fla. Const.
art. IV, § 7(a); Fla. Stat. §§ 112.40, 112.50. Scott’s threats risk deterring or chilling
the independent exercise of judgment by these officials, who would have a
reasonable fear of retaliation by Governor Scott and who would lose pay and benefits
for the suspension period. And with a high likelihood of a manual recount in
Florida’s Senate race, Florida voters will be relying on the sound and neutral
judgment of election officials to obtain an accurate result in the election. Moreover,
Defendant Scott’s threats to inject law enforcement officers into an otherwise bland
administrative setting risks disrupting the Broward and Palm Beach County
Canvassing Boards’ ability to complete their recounts within the statutorily allotted
time period. Under these circumstances, the Constitution forbids Defendant Scott
from exercising his authorities as governor with respect to the Senate seat for which

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he is a candidate, including by publicly ordering or suggesting that law enforcement
officials should investigate baseless claims of fraud in the ongoing election process.
B. Plaintiffs Are Substantially Likely to Prevail on Their Claim That
Defendant’s Use of Governmental Power to Influence the Election
Results Violates the First Amendment.
Plaintiffs are also likely to prevail on their claim that Defendant’s repeated
use of his office to advance his own political fortunes and attack his opponents
violates Plaintiffs’ freedom of association under the First Amendment. State
authority to regulate elections is “always subject to the limitation that [it] may not
be exercised in a way that violates other specific provisions of the Constitution.”
Williams v. Rhodes, 393 U.S. 23, 29 (1968). “First Amendment concerns arise where
a State enacts a law that has the purpose and effect of subjecting a group of voters
or their party to disfavored treatment by reason of their views.” Vieth v. Jubelirer,
541 U.S. 267, 314 (2004) (Kennedy, J., concurring). The Supreme Court’s election
law precedent repeatedly emphasizes that subjecting voters to disfavored treatment
because of their political views or associations violates the First Amendment. See,
e.g., Elrod v. Burns, 427 U.S. 347, 373 (1976) (holding that firing of government
employees on the basis of their political beliefs impermissibly violates the First
Amendment); California Democratic Party v. Jones, 530 U.S. 567, 586 (2000)
(holding California’s blanket primary system impermissibly burdens freedom of
association); Anderson v. Celebrezze, 460 U.S. 780, 793 (1983) (holding state’s

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filing requirements impermissibly burden First Amendment rights where those
requirements “fall[] unequally” on some candidates). And in election law, as in other
contexts, “a significant impairment of First Amendment rights must survive exacting
scrutiny.” Elrod, 427 U.S. at 362.
Governor Scott’s actions to interfere with the election have been targeted to
subject his political opponents and their supporters to disfavored treatment in the
exercise of their First Amendment rights.18 By falsely and recklessly accusing
election officials in heavily Democratic counties of election fraud and threatening
them with criminal investigation, he has already impaired Plaintiffs’ First
Amendment rights. Issuing clearly unfounded accusations of criminal activity,
paired with a credible threat to deploy law enforcement, had only one plausible
purpose: intimidating officials of counties in which he believed large numbers of
voters support his opponent. Interfering with the ability of those officials to
discharge their duties makes it less likely that voters in those counties will have their
votes counted. Such a misuse of governmental power has the purpose and effect of
penalizing voters based on their political affiliation, an exercise of authority that the
First Amendment does not tolerate. It is not necessary that Defendant Scott follow

18

While Plaintiffs the League of Women Voters of Florida and Common Cause
Florida are nonpartisan organizations, their membership includes voters who cast
ballots for Senator Bill Nelson, Governor Scott’s opponent.
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through on his threatened FDLE investigation; a credible threat of enforcement
action is sufficient to establish a First Amendment injury. See Nat’l Student Ass’n v.
Hershey, 412 F.2d 1103, 1111-12 (D.C. Cir. 1969).
C. Plaintiffs Are Substantially Likely to Prevail on Their Claim That
Defendant’s Use of Governmental Power to Influence the Election
Results Violates the Right to Vote.
“No right is more precious in a free country than that of having a voice in the
election of those who make the laws under which, as good citizens, we must live.
Other rights, even the most basic, are illusory if the right to vote is undermined.”
Wesberry v. Sanders, 376 U.S. 1, 17 (1964). “The right to vote freely for the
candidate of one’s choice is of the essence of a democratic society, and any
restrictions on that right strike at the heart of representative government.” Reynolds
v. Sims, 377 U.S. 533, 555 (1964). Moreover, the Constitution guarantees each voter
the right to cast an effective vote—that is, a ballot that is counted correctly towards
the outcome of the election. As the Supreme Court stated in United States v. Classic,
“[o]bviously included within the right to choose, secured by the Constitution, is the
right of qualified voters within a state to cast their ballots and have them counted . .
. . This Court has consistently held that this is a right secured by the Constitution.”
313 U.S. 299, 315 (1941); see also Gray v. Sanders, 372 U.S. 368, 380
(1963) (“‘[T]he right to have one’s vote counted’ has the same dignity as ‘the right
to put a ballot in a box.’”) (quoting United States v. Mosley, 238 U.S. 383, 386

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(1915)). Claims asserting violation of the right to vote are evaluated under the twopart test articulated in Anderson, 460 U.S. at 789, and Burdick v. Takushi, 504 U.S.
428 (1992). See Crawford v. Marion Cty. Elec. Bd., 553 U.S. 181, 204 (2008) (“To
evaluate a law respecting the right to vote—whether it governs voter qualifications,
candidate selection, or the voting process—we use the approach set out in Burdick.”)
(Scalia, J., concurring). In Burdick, the Supreme Court held that where the right to
vote is “subjected to ‘severe’ restrictions” by state regulation, in order to survive,
“the regulation must be ‘narrowly drawn to advance a state interest of compelling
importance.’” 504 U.S. at 434 (quoting Norman v. Reed, 502 U.S. 279, 289 (1992)).
Here Defendant has severely burdened Plaintiffs’ right to have their votes
counted fairly and accurately by subjecting them to an election system that is
infected with bias and conflict of interest. Defendant has systematically signaled that
he will use the official machinery of his office to diminish the effective participation
of his opponents’ supporters. Operating in this context, Plaintiffs face a severe
burden: ballots have been cast, but those ballots will have effect only if properly
counted. Defendant has already sought to use the power of his office to skew that
process in Broward and Palm Beach Counties. As recounts continue and the need to
certify the election nears, Defendant may further misuse the machinery of his office
to skew the counting of votes or the certification of the election, thus rendering
ineffective any ballots not counted properly as a result. It is hard to fathom what

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compelling state interests could support the misuse of official power to advance
one’s candidacy for office.
II.

The Remaining Factors for the Issuance of a TRO Weigh in Plaintiffs’
Favor.
The remaining requirements for a TRO are all satisfied here and weigh heavily

in favor of granting preliminary relief.
Irreparable injury. Defendant Scott’s threatened intervention in the
tabulation, and his control over the certification, of Florida’s election results violates
Plaintiffs’ constitutional right to a fair administration of the election in which they
have voted; their right to association protected by the First Amendment; and their
right to have their votes counted in a fair procedure. These are concrete and
substantial injuries. And once suffered they cannot be undone. If Defendant is
allowed to unlawfully interfere with the vote-counting and certification processes, it
will be too late for any redress of Plaintiffs’ constitutional injuries. Once election
results are certified, the law provides no opportunity for the results to be readjudicated. See Martin v. Kemp, No. 1:18-CV-4776-LMM, 2018 WL 5276242
(N.D. Ga. Oct. 24, 2018), appeal filed, No. 18-14503 (11th Cir. Oct. 29, 2018); see
also League of Women Voters of N. Carolina v. North Carolina, 769 F.3d 224, 247
(4th Cir. 2014) (“Courts routinely deem restrictions on fundamental voting rights
irreparable injury.”); Obama for Am. v. Husted, 697 F.3d 423, 436 (6th Cir. 2012)
(“A restriction on the fundamental right to vote therefore constitutes irreparable
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injury.”). Monetary damages cannot compensate for the loss of the right to vote or
to participate in a fairly administered election.
The balance of equities. The balance of hardships likewise favors Plaintiffs.
Defendant is not meaningfully harmed by the issuance of the proposed injunction—
and the injunction would be of substantial benefit to the public interest. As to
Defendant, he has no lawful right to exercise his official duties in a biased and
partisan manner as he has done. Indeed, Florida law expressly provides that “[n]o
officer or employee of the state . . . shall [u]se his or her official authority or influence
for the purpose of interfering with an election,” and provides that such action is
punishable as a misdemeanor. Fla. Stat. § 104.31; see also Stubbs v. Fla. State Fin.
Co., 159 So. 527, 528 (Fla. 1935). Enjoining him from the exercise of those duties
for the limited purposes of the 2018 general election would prevent him from
continuing to abuse his office for partisan and political gain, but that is not a
cognizable legal interest.
The public interest. The public interest would benefit substantially by the
issuance of the requested TRO. Defendant’s actions to date have cast doubt on his
ability to fairly oversee Florida’s senatorial election. Freezing his participation in the
tabulation of votes until this Court has a chance to evaluate the constitutionality of
his dual role as candidate and election overseer will bolster voters’ confidence in the
integrity of their elections. Furthermore, ensuring all voters’ Constitutional rights is

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itself in the public interest. See Wesberry, 376 U.S. at 17 (“No right is more precious
in a free country than that of having a voice in the election of those who make the
laws under which, as good citizens, we must live. Other rights, even the most basic,
are illusory if the right to vote is undermined.”). Restraining Defendant Scott’s
influence on the vote tabulation process need not delay the certification of the
election results. Defendant Scott’s only mandatory role in the election process is
certifying the final result on Tuesday, November 20. Fla. Stat. § 102.111. This Court
can move swiftly during that period to begin to resolve Plaintiffs’ claims about the
constitutionality of Defendant’s role in the certification procedures.
CONCLUSION
The Constitution protects Plaintiffs’ right to participate in an election
untainted by Defendant’s self-interest or partisan bias. For the reasons stated above,
this Court should enter a temporary restraining order entering the relief detailed in
Plaintiffs’ accompanying motion for a TRO and proposed order.

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Date: November 12, 2018

Respectfully submitted,
/s/ John A. DeVault, III___________________
JOHN A. DEVAULT, III (FL Bar No. 103979)
HENRY M. COXE III (FL Bar No. 155193)
MICHAEL E. LOCKAMY (FL Bar No. 69626)
Bedell, Dittmar, DeVault, Pillans & Coxe, P.A.
101 E. Adams Street
Jacksonville, Florida 32202-3303
Phone: (904) 353-0211
Facsimile: (904) 353-9307
jad@bedellfirm.com
hmc@bedellfirm.com
mel@bedellfirm.com
JANE W. MOSCOWITZ (FL Bar No. 586498)*
Moscowitz & Moscowitz, P.A.
201 Alhambra Circle, Suite 1200
Coral Gables, Florida 33134
Phone: (305) 379-8300
Facsimile: (305) 379-4404
jmoscowitz@moscowitz.com
LAURENCE M. SCHWARTZTOL**
Protect Democracy Project, Inc.
10 Ware Street
Cambridge, Massachusetts 02138
Telephone: (202) 945-2092
Facsimile: (929) 777-8248
larry.schwarztol@protectdemocracy.org
JAMILA BENKATO**
Protect Democracy Project, Inc.
2020 Pennsylvania Avenue, NW, #163
Washington, D.C. 20006
Telephone: (202) 945-2157
jamila.benkato@protectdemocracy.org

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JESSICA MARSDEN**
Protect Democracy Project, Inc.
106 S. Greensboro Street, Suite E
Carrboro, North Carolina 27510
Telephone: (202) 672-4812
jess.marsden@protectdemocracy.org
LAWRENCE S. ROBBINS**
WILLIAM J. TRUNK**
WENDY LIU**
MEGAN D. BROWDER***
Robbins, Russell, Englert, Orseck, Untereiner &
Sauber LLP
2000 K Street, N.W., 4th Floor
Washington, D.C. 20006
Phone: (202) 775-4500
Facsimile: (202) 775-4510
lrobbins@robbinsrussell.com
wtrunk@robbinsrussell.com
wliu@robbinsrussell.com
mbrowder@robbinsrussell.com
JEFF MARCUS (FL Bar No. 310890)**
One Biscayne Tower
2 South Biscayne Boulevard, Suite 1750
Miami, Florida 33131
Phone: (305) 400-4260
jmarcus@mnrlawfirm.com
JOEL S. PERWIN (FL Bar No. 316814)*
Joel S. Perwin, P. A.
Suite 1523, Alfred I. DuPont Building
169 East Flagler Street
Miami, Florida 33131
Phone: (305) 779-6090
jperwin@perwinlaw.com

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MICHAEL S. OLIN (FL Bar No. 220310)*
Buckner + Miles
3350 Mary Street
Miami, Florida 33133
Phone: (305) 964-8003
molin@bucknermiles.com
*Application for admission forthcoming
**Pro Hac Vice forthcoming
***Pro Hac Vice forthcoming; Admitted in CO
only; Supervised by Principals of the Firm
Counsel for Plaintiff

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CERTIFICATE OF COMPLIANCE
Pursuant to Northern District of Florida Local Rule 7.1(F), the undersigned
certifies that this memorandum, excluding case style, signature block, certificate of
service, and certificate of compliance contains 5,234 words.
John A. DeVault, III___________________
JOHN A. DEVAULT, III (FL Bar No. 103979)

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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Motion has
been served on Pamela Bondi, Attorney General of Florida and counsel for
Defendant Scott in his capacity as Governor of the State of Florida, by e-mail
sent to oag.civil.eserve@myflorida.com on this 12th day of November, 2018.

s/ John A. DeVault, III___________________
JOHN A. DEVAULT, III (FL Bar No. 103979)

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