IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Transcription

1 Case 1:11-cv CKK-MG-ESH Document 143 Filed 08/10/12 Page 1 of 2 STATE OF FLORIDA, IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA Plaintiff, v. UNITED STATES OF AMERICA and ERIC H. HOLDER, JR., in his official capacity as Attorney General of the United States, Civil No. 1:11-cv CKK-MG- ESH Defendants, v. KENNETH SULLIVAN, et. al., Defendant-Intervenors MOTION FOR LEAVE TO AMEND THE COMPLAINT Pursuant to this Court s Scheduling Order (Doc. 120), Fed. R. Civ. P. 15, and Local Rule 7, the State of Florida submits the following Motion for Leave to Amend the Complaint. In light of League of Women Voters of Florida v. Browning, No. 11-cv-628 (N.D. Fla.), certain provisions of the Third Party Changes 1 will now be permanently enjoined. Florida therefore no longer seeks preclearance for these enjoined changes. In the interests of expediency and judicial economy, and to allow this action to be decided in 1 Third Party Changes refers to the changes to Fla. Stat , see V , (amended complaint); V (redline of changes to Fla. Stat ), and the changes to Fla. Admin. Rule 1S-2.042, which are the implementing regulations of Fla. Stat , see V , (amended complaint); V (text of Fla. Admin. Rule 1S (2011) and accompanying forms); V (redline of changes to Fla. Admin. Rule 1S-2.042). 1

2 Case 1:11-cv CKK-MG-ESH Document 143 Filed 08/10/12 Page 2 of 2 advance of the November 2012 elections, Florida now moves to amend its complaint to narrow its request for preclearance to the non-enjoined changes. Included with this motion are: (1) a memorandum of points and authorities in support of the motion; (2) exhibits supporting the motion; (3) a copy of the proposed Third Amended Complaint; and (4) a redline showing the differences between the Third Amended Complaint and the Second Amended Complaint. Pursuant to Local Rule 7(m), the State of Florida has conferred with all Defendants. Defendant and Defendant- Intervenors have informed Florida that they will respond to this Motion in accordance with the schedule established by the Court. See Doc For the reasons explained in the attached memorandum of points and authorities, the State of Florida respectfully requests that this Court grant the motion. Respectfully submitted, /s/ William S. Consovoy Daniel E. Nordby Ashley E. Davis FLORIDA DEPARTMENT OF STATE R.A. Gray Building 500 S. Bronough Street Tallahassee, FL Tel: Dated: August 10, 2012 William S. Consovoy* (D.C. Bar ) Brendan J. Morrissey (D.C. Bar ) J. Michael Connolly (D.C. Bar ) WILEY REIN LLP 1776 K Street, NW Washington, DC Tel.: (202) Fax: (202) * Counsel of Record 2

3 Case 1:11-cv CKK-MG-ESH Document Filed 08/10/12 Page 1 of 42 STATE OF FLORIDA, IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA Plaintiff, v. UNITED STATES OF AMERICA and ERIC H. HOLDER, JR., in his official capacity as Attorney General of the United States, Civil No. 1:11-cv CKK-MG- ESH Defendants, v. KENNETH SULLIVAN, et. al., Defendant-Intervenors MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF S MOTION FOR LEAVE TO AMEND THE COMPLAINT Pursuant to this Court s Scheduling Order (Doc. 120), Fed. R. Civ. P. 15, and Local Rule 7, the State of Florida submits the following Memorandum of Points and Authorities in Support of its Motion for Leave to Amend the Complaint. Although Florida originally sought preclearance for all of the changes to Fla. Stat and Rule 1S (collectively, the Third Party Changes ), see Doc. 54, certain provisions were preliminarily enjoined by Judge Hinkle in the Northern District of Florida. As fully explained below, Florida has now obtained clarification of the scope of that injunction, asked Judge Hinkle to make the injunction permanent, begun implementing the terms of the injunction through rulemaking, and withdrawn its appeal. 1

4 Case 1:11-cv CKK-MG-ESH Document Filed 08/10/12 Page 2 of 42 Accordingly, as these provisions will be permanently enjoined and will never be in force or effect, Florida moves to amend its complaint to narrow its preclearance request to the non-enjoined changes to Fla. Stat and Emergency Rule 1SER12-01, which is the administrative rule that modifies Rule 1S to conform with Judge Hinkle s injunction. Because the proposed amended complaint will advance the interest in judicial economy and allow for the prompt resolution of Florida s preclearance request in advance of the November 2012 elections, this Court should grant Florida s motion to amend the complaint. I. BACKGROUND On May 19, 2011, Committee Substitute for Committee Substitute for House Bill No. 1355, an omnibus bill revising the Florida Election Code, became law. FF 21. Among other things, HB 1355 made changes to Fla. Stat , which governs thirdparty voter registration organizations. FF After the Act was signed into law, the Florida Department of State adopted Florida Administrative Code Rule 1S ( Rule 1S ). FF 22. Rule 1S implemented the changes made by HB 1355 to Fla. Stat FF 22. In so doing, it modified the prior version of Rule 1S-2.042, which had implemented the legal regime governing third-party registration organizations under the previous version of Fla. Stat FF 22. On October 25, 2011, Florida filed its Second Amended Complaint seeking preclearance on behalf of its five covered counties for the changes to Fla. Stat and Rule 1S See Doc. 54. After Florida filed its complaint, a group of plaintiffs sought a preliminary injunction to enjoin certain provisions of the Third Party Changes. See League of Women 2

5 Case 1:11-cv CKK-MG-ESH Document Filed 08/10/12 Page 3 of 42 Voters of Florida v. Browning, No. 11-cv-628 (N.D. Fla.). On May 31, 2012, District Judge Robert Hinkle granted in part and denied in part the plaintiffs motion and preliminarily enjoined certain provisions of Fla. Stat and Rule 1S See id. (Doc. 58). On June 5, 2012, this Court asked the parties to identify their positions on the effect of Judge Hinkle s order on the preclearance requests in this case. Doc. 106 at 1. Florida informed the Court that given its strong desire to have this matter resolved in advance of the November 2012 election... Florida will no longer seek in this action to preclear the Third Party Changes that Judge Hinkle preliminarily enjoined. Doc. 109 at 2. Florida also explained that it needed minor clarification regarding the scope of Judge Hinkle s preliminary injunction. Doc. 109 at 3 n.2. In response to Florida s notification, this Court ordered the United States to indicate whether it is able to grant administrative preclearance to the Third Party Changes that were not preliminarily enjoined by Judge Hinkle. Minute Order (June 13, 2012). The United States informed the Court that it could not at that time review the request because the scope of Judge Hinkle s order was not precisely clear, but that if these questions were resolved and Florida abandoned the enjoined changes then the Attorney General would make his best efforts to expeditiously review such an administrative submission within two weeks of receipt of the complete submission. Doc. 113 at 5 (emphasis added). On June 22, 2012, this Court instructed Florida to file its motion to partially dismiss and/or to amend its complaint,... thereby withdrawing its preclearance request regarding the third-party voter registration organization changes that were preliminarily enjoined... by the end of the next business day after receiving any 3

6 Case 1:11-cv CKK-MG-ESH Document Filed 08/10/12 Page 4 of 42 necessary clarification regarding the scope of Judge Hinkle s order. Doc. 120 at 1. On July 3, 2012, Florida informed the Court that although it had filed a notice of appeal, the parties had reached a settlement agreement in principle and Florida would file a motion to dismiss and/or amend the complaint after a final settlement agreement was reached and the necessary clarification was obtained. Doc. 132 at 1-2. On August 7, 2012 the Florida Department of State noticed an emergency rule that modified Rule 1S to conform to the terms of Judge Hinkle s preliminary injunction ( Emergency Rule 1SER12-01 ). 1 See Exhibit A. Emergency Rule 1SER12-01 will take effect on August 15, See Emergency Rule 1SER12-01(9). The Florida Department of State also submitted a proposed rule identical to Emergency Rule 1SER12-01 for publication in the Florida Administrative Weekly and adoption as a final rule according 1 In addition to implementing Judge Hinkle s preliminary injunction, Emergency Rule 1SER12-01 makes two minor (and ameliorative) changes to Rule 1S to address concerns raised both in this case and in Browning. First, if a third-party voter registration organization demonstrates that the failure to timely deliver a voter registration application was the result of force majeure or impossibility of performance, the Secretary will not refer the violation to the Attorney General for enforcement. Emergency Rule 1SER12-01(5)(c) (emphasis added); see Oral Arg. Tr. at (questioning whether the State would be required to implement the force majeure exception ). Second, if an untimely voter registration application contains a third-party voter registration identifying number but no other information indicating it was collected by a third-party voter registration organization the Secretary will not refer a violation to the Attorney General unless there is evidence that the applicant entrusted the voter registration application to a third-party voter registration organization. Emergency Rule 1SER12-01(8)(d); see Oral Arg. Tr. at (arguing that voter registration applications are prelabeled as being for that third party registration organization.... [but if the organization] hand[s] it to [a] person, that person then signs it and then turns it in 11 days later, that will be recorded as if [the organization] turned the registration form in after the fact ). 2 Florida s five Covered Counties, of course, will not implement the changes set forth in Emergency Rule 1SER12-01 until they have received preclearance. 4

7 Case 1:11-cv CKK-MG-ESH Document Filed 08/10/12 Page 5 of 42 to the rulemaking process set forth in Fla. Stat ( Final Rule 1S ). See Exhibit B. On August 10, 2012, the parties filed a joint motion for a permanent injunction with Judge Hinkle in the Northern District of Florida. See Exhibit C. The parties informed the court that they had resolved their dispute and they asked the court to convert its preliminary injunction to a permanent injunction. Contemporaneously, the Florida Department of State filed an unopposed motion to voluntarily dismiss its appeal in the Eleventh Circuit, in accordance with the local rules. See Exhibit D. Finally, on August 13, 2012, Florida anticipates that it will submit a request for administrative preclearance of the non-enjoined changes to Fla. Stat and Emergency Rule 1SER12-01 to the Department of Justice. 3 Pursuant to this Court s order (Doc. 120), and in light of the joint motion submitted by the parties in the Browning litigation, Florida has now received the necessary clarification regarding the scope of Judge Hinkle s order and hereby submits this motion to amend its complaint in order to seek preclearance of the nonenjoined changes to Fla. Stat and Emergency Rule 1SER Per its representations to this Court, the Department of Justice will presumably make its best efforts to review Florida s request by August 27, 2012, which is fourteen days after Florida will submit its request. See Doc. 113 at 5. 4 Florida will submit a notice to this Court once Judge Hinkle ratifies the joint motion for entry of a permanent injunction. Because the parties to the Browning litigation are in agreement concerning the scope of the injunction (and the Florida Department of State has since issued an Emergency Rule to implement that agreed-upon understanding), Florida believed that promptly filing its motion to amend the complaint was the most prudent course given the need to resolve this case in advance of the November 2012 elections. 5

8 Case 1:11-cv CKK-MG-ESH Document Filed 08/10/12 Page 6 of 42 II. ARGUMENT Under the Federal Rules, [t]he court should freely give leave [to amend] when justice so requires. Fed. R. Civ. P. 15(a)(2). Because of this liberal standard, a refusal to allow amendment must be justified by a sufficiently compelling reason, such as undue delay, prejudice to the non-moving party, bad faith, dilatory motive, repeated failure to cure deficiencies by previous amendments, or futility of amendment. Patton Boggs, LLP v. Chevron Corp., 791 F. Supp. 2d 13, 19 (D.D.C. 2011) (citing Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996)). The party opposing amendment has the burden of establishing that it would be improper. Id. Florida s motion to amend its complaint is entirely proper and is warranted under the circumstances presented here. As it stands, Florida s Second Amended Complaint seeks preclearance of all the changes to Fla. Stat and the prior version of Rule 1S Yet some of these provisions will be permanently enjoined, and Emergency Rule 1SER12-01, which modifies Rule 1S to conform to the terms of the preliminary injunction, has been noticed and will take effect on August 15, There is no basis for a preclearance decision concerning statutory and administrative provisions that will never be in force or effect in the Covered Counties and which Florida and its Covered Counties do not seek to administer. 42 U.S.C. 1973c (allowing a covered jurisdiction to seek preclearance [w]henever it shall enact or seek to administer a voting change); Branch v. Smith, 538 U.S. 254, 265 (2003) (concluding that Mississippi was no longer seek[ing] to administer a voting change that was subject to a federal injunction that the State was not challenging). This case confirms the reasoning of 6

9 Case 1:11-cv CKK-MG-ESH Document Filed 08/10/12 Page 7 of 42 Branch: it would be unwise (and likely improper) for a Court to decide whether changes will have the effect of denying or abridging the right to vote on account of race, color, or [membership in a language minority group] when they will never take effect. Although Defendants have previously argued that the enjoined changes are related to the non-enjoined changes such that they must be reviewed together, see Doc. 113 at 3-4, this argument has no merit. As an initial matter, it has been overtaken by events. Because the changes that Florida seeks to withdraw from this litigation will now be permanently enjoined, they are not related to anything. For purposes of this case, it is as if they were never enacted in the first place. Thus, any reliance on the unpublished order in Pleasant Grove v. United States, No (D.D.C. Oct. 7, 1981) (reprinted at Doc ) would be misplaced. See Oral Argument Transcript at (D.D.C. June 22, 2012). Relying on precedent that several annexations are to be considered as a single and unified whole, id. at 2 (quoting City of Rome v. United States, 472 F. Supp. 221, 247 (D.D.C. 1979)), the district court in Pleasant Grove ordered that all of the city s annexations needed to be reviewed together. Id. at 3. This case is obviously different in light of the permanent injunction. Any single and unified whole argument that Defendants might have raised is now moot. 5 5 In Pleasant Grove, the district court also learned that for more than ten years the City of Pleasant Grove had been administering an annexation that had never received preclearance. Pleasant Grove at 1. In the court s view, allowing the city to preclear the recent change without also submitting the prior annexation would completely contradict the purpose of the Voting Rights Act. Id. Here, however Florida has not engaged in gamesmanship in an attempt to obtain preclearance in a piecemeal fashion. Florida originally sought preclearance for all the Third Party Changes before implementing 7

10 Case 1:11-cv CKK-MG-ESH Document Filed 08/10/12 Page 8 of 42 In any event, the related changes argument is incorrect for another reason: the non-enjoined changes are clearly independent and severable. Because the Court is reviewing a Florida statute, [s]everability is of course a matter of state law. Leavitt v. Jane L., 518 U.S. 137, 139 (1996). Under Florida law, [t]he important factor to be considered when determining whether valid and invalid provisions are separable and essential is legislative intent. State v. Tirohn, 556 So.2d 447, 449 (Fla. 5th DCA 1990) (citing Limpus v. Newell, 85 So.2d 124 (Fla. 1956)). When a severability clause is included in the statute... the expressed legislative intent in this respect should be carried out unless to do so would produce an unreasonable, unconstitutional or absurd result. Small v. Sun Oil Co., 222 So.2d 196, (Fla. 1969) (citing Louis K. Liggit Co. v. Lee, 1933, 109 Fla. 477, 149 So. 8, 9 (1933)). The Florida Legislature included a severability clause in the Act. Florida Laws 2011, ch , 79 (eff. May 19, 2011) ( If any provision of this act or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the act which can be given effect without the invalid provision or application, and to this end the provisions of this act are severable. ). Accordingly, there is no basis to judicially negate the legislature s intent in this instance. Indeed, the parties in Browning explicitly agreed that [t]his injunction does not affect any other portion of Florida Statutes or Florida Administrative Code Rule 1S Exhibit C. Unlike a preclearance request of multiple annexations, then, them in the Covered Counties and it has only narrowed its request because of Judge Hinkle s preliminary injunction. 8

11 Case 1:11-cv CKK-MG-ESH Document Filed 08/10/12 Page 9 of 42 which arguably do need to be reviewed as a whole to understand their full effect, the nonenjoined changes are severable, they are fully capable of being evaluated independently, and the enjoined changes will never be in force or effect. See supra. There is simply no reason for this Court to review the enjoined changes. Finally, Defendants will not be prejudiced in any way by Florida s motion to amend the complaint. There is no possibility of Florida reversing its stance and seeking preclearance at a later date, as Florida has withdrawn its appeal and these provisions will be permanently enjoined. Thus, any concern that Defendants will be forced to recreate this record in a future case is moot as well. At bottom, Florida s motion should be entirely unobjectionable as it withdraws changes that will never take effect in the Covered Counties and streamlines this Court s review of Florida s remaining claims. If the Court grants the motion, the parties will submit supplemental briefing on whether the non-enjoined changes are entitled to preclearance and the case will then be ready for decision. See Doc. 120 at 2. 6 But if the Court denies Florida s motion, the Court would decide whether all of the Third Party Changes are entitled to preclearance an issue that has been thoroughly briefed and 6 This issue could also be moot if the United States grants administrative preclearance. See supra n.3. Indeed, there is every reason to believe that the non-enjoined changes will be granted preclearance as they are entirely unobjectionable. Third-party voter registration groups have resumed activities in the State and there is no evidence any of these changes will burden their ability to register voters, see id. Indeed, Defendants briefing dealt entirely with provisions that have been enjoined. See Doc. 109 at 7. And the few concerns raised by Defendants at oral argument regarding the non-enjoined changes have been addressed by Emergency Order 1SER See supra n.1. These changes are unquestionably entitled to preclearance. 9

12 Case 1:11-cv CKK-MG-ESH Document Filed 08/10/12 Page 10 of 42 argued by the parties. In either case, once the Court acts on this motion, there should be no impediment to resolution of Florida s claims. III. CONCLUSION For the foregoing reasons, Florida respectfully requests that the Court grant its motion to amend the complaint. Respectfully submitted, /s/ William S. Consovoy Daniel E. Nordby Ashley E. Davis FLORIDA DEPARTMENT OF STATE R.A. Gray Building 500 S. Bronough Street Tallahassee, FL Tel: Dated: August 10, 2012 William S. Consovoy* (D.C. Bar ) Brendan J. Morrissey (D.C. Bar ) J. Michael Connolly (D.C. Bar ) WILEY REIN LLP 1776 K Street, NW Washington, DC Tel.: (202) Fax: (202) * Counsel of Record 10

13 Case 1:11-cv CKK-MG-ESH Document Filed 08/10/12 Page 11 of 42 Exhibit A

14 Case 1:11-cv CKK-MG-ESH Document Filed 08/10/12 Page 12 of 42 DEPARTMENT OF STATE Division of Elections RULE NO.: RULE TITLE: 1SER12-01: Third-Party Voter Registration Organizations Notice of Emergency Rule SPECIFIC REASONS FOR FINDING AN IMMEDIATE DANGER TO THE PUBLIC HEALTH, SAFETY OR WELFARE: Pursuant to section (4)(b), Florida Statutes, this emergency rule is a rule pertaining to the public health, safety, and welfare as it involves the interpretation and implementation of the requirements of chapters and 105 of the Florida Election Code. A federal court preliminarily enjoined certain aspects of section , Florida Statutes, concerning third-party voter registration organizations. While regular rulemaking will soon occur for Rule 1S-2.042, this emergency rule is necessary to implement the provisions of the court s ruling in a timely manner. The emergency rule removes those procedures that have been enjoined and makes additional clarifications to conform the rule to the court s decision. The emergency rule will provide third-party voter registration organizations and supervisors of elections the direction they need until Rule 1S can complete its normal rulemaking cycle. REASON FOR CONCLUDING THAT THE PROCEDURE IS FAIR UNDER THE CIRCUMSTANCES: The Division of Elections is aware of the rulemaking procedures prescribed by Section , Florida Statutes. That process requires advance notice to the public of intended rules and the opportunity to submit comments on the intended rule, prior to the agency s adoption of the rule. The time period for general rulemaking takes at least 60 days and will prevent the timely amendment and adoption of a rule needed to apply to ongoing registration activities conducted by third-party voter registrations organizations. In the interim, the provisions of this emergency rule will ensure that organizations and supervisors of elections will be able to comply with the requirements of law based upon a federal court ruling preliminarily enjoining certain provisions of Section , Florida Statutes. The Department of State will soon file a notice of proposed rule development for Rule 1S with the intent to incorporate the text of this emergency rule through regular rulemaking. SUMMARY: This emergency rule revises the procedures used by third-party voter registration organizations to align them a preliminary injunction issued by a federal court. It restricts the registration requirement to only those organizations who actually collect voter registration applications from voters; eliminates the organization s registration agent sworn statement form, DS-DE 120; deletes the requirement for an organization to list its volunteer registration agents on the registration form, DS-DE 119; deletes the requirement for an organization to file a monthly report, DS-DE 123, accounting for voter registration applications; changes the time period from 48 hours to 10 days for the organization to deliver a completed voter registration application to the Division or to a supervisor of elections' office after an applicant delivers the application to the organization; and further refines the procedures for supervisors of elections regarding untimely filed voter registration applications and the procedures for the Secretary of State s referral of a violation to Florida s Attorney General. The emergency rule is necessary to ensure that thirdparty voter registration organizations and supervisors of elections have the necessary guidance to comply with the preliminary injunction issued by the U.S. District Court. THE PERSON TO BE CONTACTED REGARDING THE EMERGENCY RULE IS: Gary J. Holland, Assistant General Counsel, Florida Department of State, 500 S. Bronough Street, Tallahassee, Florida 32399; Gary.Holland@dos.myflorida.com; THE FULL TEXT OF THE EMERGENCY RULE IS:

15 Case 1:11-cv CKK-MG-ESH Document Filed 08/10/12 Page 13 of 42 1SER12-01 (1S-2.042) Third-Party Voter Registration Organizations. (1) Forms. The following forms are hereby incorporated by reference and available from the Division of Elections, R. A. Gray Building, Room 316, 500 South Bronough Street, Tallahassee, Florida , by contact at (850) , or by download from the Division s webpage at: (a) Form DS-DE 119 (eff. 08/ /2011), ( entitled Third-Party Voter Registration Organization Registration Form. (b) Form DS-DE 120 (eff. 06/2011), ( entitled Third-Party Voter Registration Organization Registration Agent s Sworn Statement. (b)(c) Form DS-DE 121 (eff. 06/2011), ( entitled Form for Complaint Against Third-Party Voter Registration Organization. (d) Form DS-DE 123 (eff. 06/2011) ( entitled Third-Party Voter Registration Organization s Accounting of Voter Registration Applications. (c)(e) Form DS-DE 124 (eff. 06/2011) ( entitled Supervisor of Elections Accounting of Third-Party Voter Registration Organization s Voter Registration Applications. (2) Definitions. For purposes of Section , F.S., the following definitions apply: (a) Affiliate organization of a third-party voter registration organization means any person, as defined in Section 1.01(3), F.S., that is associated with the third-party voter registration organization as a subordinate, subsidiary, member, branch, chapter, as a central or parent organization, or through direct or indirect ownership or control. Ownership or control means substantial and effective, though not necessarily predominant, ownership or control. (b) Engaging in any voter registration activities means that the organization is soliciting for collection or collecting voter registration applications from Florida voter registration applicants. (c) Force majeure means any event or occurrence of societal significance beyond the reasonable control and without the fault of the third-party voter registration organization which could not have been prevented, avoided, or overcome by the exercise of reasonable care, diligence, or foresight of the third-party voter registration organization, including, but not limited to, civil disturbances or acts of war; extraordinarily severe weather, such as hurricanes, floods, or tornadoes; or shortages of food, electric power, or fuel. (d) Impossibility of performance means an actual impossibility or impracticability of compliance as the result of a condition or circumstance which the third-party voter registration organization did not create and could not reasonably have anticipated. (e) Registration agent means any individual who is employed by or volunteers for a third-party voter registration organization and who solicits for collection or who collects voter registration applications from Florida voter registration applicants on behalf of the organization. (3) Registration. (a) Before engaging in any voter registration activities, a third-party voter registration organization (hereinafter organization ) shall complete and file Form DS-DE 119 with the Division. The organization must submit the form as an attachment in pdf format in an to 3PVRO@dos.myflorida.com or transmit the form to the Division s facsimile machine at (850) An affiliate organization which itself independently engages in separate solicits for collection of or collects voter registration applications from Florida voter registration applicants on behalf of the affiliate must file a Form DS-DE 119 even if its affiliated organization has filed a Form DS-DE 119. An organization shall also use Form DS-DE 119 to update or terminate its registration. (b) Upon receipt of an organization s initial and completed registration, the Division shall assign the organization a unique third-party voter registration organization identification number that begins with 3P. An organization is not deemed registered as a third-party voter registration organization until the Division issues the organization its identification number. (c) A registration agent must complete, sign, and date Form DS-DE 120 before beginning his or her duties for the organization and the organization must ensure the form is submitted to the Division within 10 days after the form is signed. Form DS-DE 120 may be submitted to the Division when the organization submits its initial Form DS-DE 119. For any addition to the list of its registration agents or change in information about a registration agent other

16 Case 1:11-cv CKK-MG-ESH Document Filed 08/10/12 Page 14 of 42 than termination of a registration agent, the organization shall submit an updated Form DS-DE 119. For permissible means of notifying the Division of the termination of a registration agent, See paragraph (6)(b). (c)(d) A registration agent may be a registration agent for one or more organizations, but each organization must ensure that the registration agent submits a separate Form DS-DE 120 for its organization. (d)(e) An organization shall submit any change in information previously submitted to the Division, including any addition to the list of its employee registration agents, any termination of an employee registration agent, or change in information about an employee registration agent, within 10 days following the change. A change is not considered filed until the Division receives the change. Notice of termination of an employee registration agent shall be provided as set forth in paragraph (6)(b). (e)(f) Except as otherwise provided in paragraph (6)(b), any forms or amendments or additions to forms required under this subsection must be submitted in the same manner of transmission required for the Form DS-DE 119 used to initially register an organization. (4) Voter Registration Applications Provided to and Used by Third-Party Voter Registration Organizations. (a) All voter registration applications provided by the Division and each supervisor of elections to an organization shall include the third-party voter registration organization identification number on the bottom of the reverse side of each voter registration application in a manner that does not obscure any other entry. (b) The registration agent or the organization shall print the date and time that the voter registration applicant delivered completed the application to the registration agent in a conspicuous space on the bottom portion of the reverse side of the voter registration application it collects from a voter registration applicant in a manner that does not obscure any other entry. The date and time printed by the registration agent or the organization shall be in the following numerical format: MM/DD/YY; hh:mm am/pm. For example, if the voter registration applicant completed the application on May 15, 2014 at 1:30 p.m., the entry on the bottom portion of the reverse side of the application shall be: 5/15/14; 1:30pm. The entry for an application completed on October 11, 2014 at 11:30 a.m., would be printed as 10/11/14; 11:30am on the bottom portion of the reverse side of the application. (c) Each organization shall ensure that its assigned organization identification number is recorded on the bottom portion of the reverse side of any voter registration application it delivers to the Division or a supervisor of elections in a manner that does not obscure any other entry. (d) Delivery of the voter registration application by the organization to the Division or a supervisor of elections may be accomplished by in-person delivery or mail. All applications must be delivered to the Division or a supervisor of elections or be postmarked within 10 calendar days of collection by an organization or any of its registration agents. If the 10 th day falls on a weekend, holiday, or other day on which the Division or the supervisor of elections office is closed, the voter registration application must be delivered to the Division or the supervisor of elections or be postmarked by the following business day. If, however, a book closing deadline for any given election for federal or state office falls within the 10-day period described above, all applications collected by an organization or any of its registration agents before book closing must be delivered to the Division or a supervisor of elections on or before the book closing deadline. (5) Referral to Attorney General for Enforcement; Waiver of Fines upon Showing of Force Majeure or Impossibility of Performance Monthly Report by Organizations. (a) In exercising the authority to refer violations of the third-party voter registration law to the Attorney General for enforcement, the Secretary of State s principal concern is the protection of applicants who have entrusted their voter registration applications to a third-party voter registration organization. By law, the organization serves as a fiduciary to those applicants, who have a right to expect that their applications will be timely delivered to an elections official irrespective of party affiliation, race, ethnicity, or gender By the 10th day of each month, each organization shall submit to the Division a Form DS-DE 123 to account for the number of state and federal voter registration application forms provided to and received from each of its registration agents for the preceding month. If the organization had no voter registration activity in the preceding month, the organization shall still submit Form DS-DE 123 reflecting that it did not provide voter registration applications to, or receive any from, its registration agents. (b) Any organization claiming that its failure to deliver a voter registration application within the required timeframe was based upon force majeure or impossibility of performance may provide a sworn statement to the Division explaining the circumstances constituting force majeure or impossibility of performance Form DS-DE 123 required under this subsection must be submitted as an attachment in pdf format in an to 3PVRO@dos.myflorida.com or transmitted to the Division s facsimile machine at (850)

17 Case 1:11-cv CKK-MG-ESH Document Filed 08/10/12 Page 15 of 42 (c) If the information provided to the Division by the organization demonstrates that the failure to timely deliver a voter registration application was the result of force majeure or impossibility of performance, the Secretary of State will not refer the violation to the Attorney General for enforcement. (6) Termination of Organization and Employee Registration Agent. (a) If an organization terminates its status as a third-party voter registration organization, the organization shall submit within 10 days a Form DS-DE 119 reflecting its termination and also a Form DS-DE 123 to report its final accounting of voter registration application forms provided to the organization by the Division or any supervisor of elections. All such voter registration applications remaining in the organization s possession should be returned either to the Division or a supervisor of elections within 10 days of filing Form DS-DE 123. The address for the Division is Bureau of Voter Registration Services, Division of Elections, R. A. Gray Building, Room 316, Tallahassee, Florida The address for the applicable supervisor of elections may be obtained by telephoning or found on the Internet at (b) If an employee registration agent s employment with, or volunteer services for, an organization is terminated, the organization shall file notice of the terminated status of a the employee registration agent by submitting an updated Form DS-DE 119 or by sending a notification of the termination by to 3PVRO@dos.myflorida.com or by transmitting the notification to the Division s facsimile machine at (850) within 10 days of the termination. If Form DS-DE 119 is not used as the means of notification, the notification shall contain the organization s assigned identification number and the name of the employee registration agent being terminated. (c) Forms DS-DE 119 and DS-DE 123 required under this subsection must be submitted as an attachment in pdf format in an to 3PVRO@dos.myflorida.com or transmitted to the Division s facsimile machine at (850) (7) Processing of Voter Registration Applications from an Organization by the Division and Supervisors of Elections. (a) For each non-blank registration application that an organization delivers to the Division or supervisor of elections, a voter registration official shall record the date and time of delivery on the bottom portion of the reverse side of the application in a manner that does not obscure any other entries. For purposes of this rule and not for voter registration purposes, an application is considered delivered to the Division or a supervisor of elections at the time the application is actually delivered by the organization by in-person delivery or, if mailed, the date of delivery shall be the date of a clear postmark, if one is present on the mailing envelope. If a postmark is not present or unclear, the date of delivery to the Division or a supervisor of elections is the actual date of receipt. If the date of delivery is the mail postmark, the applicable 48-hour period for the determination of fines pursuant to Section , F.S., shall be based upon a whether the postmark is within two days of the date when the applicant completed the voter registration application, unless the organization provides documentation at the time of mailing the application that the date the applicant completed the application was on an earlier date than when the applicant delivered the application to the organization. For a determination of a fine based upon the application being received by mail after the book closing date, a clear postmark on or before the date of book closing will excuse the fine. If an organization delivers more than one application at the same time, those applications shall bear the same date and time of delivery regardless of when the applications are processed. (b) An organization s untimely delivery of a voter registration application does not affect the validity of the application. Every Such application must be processed regardless of the timeliness of its delivery. (c) The Division and supervisors of elections shall record the number of state or federal voter registration applications they provide to, and receive from, each organization. Each supervisor of elections shall report to the Division on Form DS-DE 124 by noon of the following business day the number of voter registration applications provided to and received from each organization the previous business day. Supervisors of Elections are not required to submit Form DS-DE 124 when they did not provide any voter registration applications to, or receive any from, an organization on the preceding business day. (d) Form DS-DE 124 required under this subsection must be submitted as an attachment in pdf format in an to 3PVRO@dos.myflorida.com or transmitted to the Division s facsimile machine at (850) (8) Complaints. (a) Any person claiming to have provided a completed voter registration application to a third-party voter registration organization but whose name does not appear as an active voter on the voter registration rolls shall use Form DS-DE 121 to file the complaint with the Division.

18 Case 1:11-cv CKK-MG-ESH Document Filed 08/10/12 Page 16 of 42 (b) Any other person, except supervisors of elections or their staff, may report allegations of irregularities or fraud involving voter registration by filing an elections fraud complaint with the Division. See Rule 1S-2.025, F.A.C. (c) Supervisors of elections or their staff shall report any untimely filed voter registration application submitted by an organization by sending the Division an explanatory statement in an and attaching documents which reflect the untimely submission in pdf format to or by transmitting the explanatory statement and documentation to the Division s facsimile machine at (850) , or by having them delivered by express mail or expedited courier service. For any application containing an organization s identification number -- but no other information indicating it was collected by a third-party voter registration organization, such as a cover letter or a date delivered mark as required by paragraph (4)(b) and that was received after the book closing date or more than 10 days after the date on which the applicant signed it -- the explanatory statement should include a description of the supervisor s efforts to contact the applicant to confirm that the application was delivered to the organization. (d) The Secretary of State will not refer a violation to the Attorney General unless there is evidence that the applicant entrusted the voter registration application to a third-party voter registration organization. (9) Effective Date. This rule is effective on August 15, Rulemaking Authority 20.10(3), (1), (2), (15), (1), (2), (5) FS. Law Implemented (1), (2), (15), (37), , FS. History New , Amended , , THIS RULE TAKES EFFECT UPON BEING FILED WITH THE DEPARTMENT OF STATE UNLESS A LATER TIME AND DATE IS SPECIFIED IN THE RULE. EFFECTIVE DATE: August 15, 2012

19 Case 1:11-cv CKK-MG-ESH Document Filed 08/10/12 Page 17 of 42 Exhibit B

20 Case 1:11-cv CKK-MG-ESH Document Filed 08/10/12 Page 18 of 42 Notice of Development of Rulemaking DEPARTMENT OF STATE Division of Elections RULE NO.: RULE TITLE: 1S-2.042: Third-Party Voter Registration Organizations PURPOSE AND EFFECT: The primary purpose is to conform the rule to an injunction granted by a federal court. The revisions have the effect of removing those provisions have been enjoined and they make additional clarifications to conform the rule to the court s decision. The rule will provide third-party voter registration organizations and supervisors of elections the direction they need to comply with applicable law. SUBJECT AREA TO BE ADDRESSED: Third-party voter registration organizations. RULEMAKING AUTHORITY: 20.10(3), (1), (2), (15), (1), (2), (5) FS. LAW IMPLEMENTED: (1), (2), (15), (37), , FS. IF REQUESTED IN WRITING AND NOT DEEMED UNNECESSARY BY THE AGENCY HEAD, A RULE DEVELOPMENT WORKSHOP WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW: DATE AND TIME: September 4, 2012; 10am. PLACE: Department of State, Room 307, R.A. Gray Building, 500 S. Bronough Street, Tallahassee, Florida. Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in this workshop/meeting is asked to advise the agency at least 5 days before the workshop/meeting by contacting: Gary J. Holland, Assistant General Counsel, Office of General Counsel, Department of State, R. A. Gray Building, 500 S. Bronough Street, Tallahassee, FL ; telephone: (850) ; gary.holland@dos.myflorida.com. If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800) (TDD) or 1(800) (Voice). THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE DEVELOPMENT AND A COPY OF THE PRELIMINARY DRAFT, IF AVAILABLE, IS: Gary J. Holland, Assistant General Counsel, Office of General Counsel, Department of State, R. A. Gray Building, 500 S. Bronough Street, Tallahassee, FL ; telephone: (850) ; gary.holland@dos.myflorida.com. THE PRELIMINARY TEXT OF THE PROPOSED RULE DEVELOPMENT IS: 1S Third-Party Voter Registration Organizations. (1) Forms. The following forms are hereby incorporated by reference and available from the Division of Elections, R. A. Gray Building, Room 316, 500 South Bronough Street, Tallahassee, Florida , by contact at (850) , or by download from the Division s webpage at: (a) Form DS-DE 119 (eff. 09/ /2011), ( entitled Third-Party Voter Registration Organization Registration Form. (b) Form DS-DE 120 (eff. 06/2011), ( entitled Third- Party Voter Registration Organization Registration Agent s Sworn Statement. (b)(c) Form DS-DE 121 (eff. 06/2011), ( entitled Form for Complaint Against Third-Party Voter Registration Organization. (d) Form DS-DE 123 (eff. 06/2011) ( entitled Third- Party Voter Registration Organization s Accounting of Voter Registration Applications. (c)(e) Form DS-DE 124 (eff. 06/2011) ( entitled Supervisor of Elections Accounting of Third-Party Voter Registration Organization s Voter Registration Applications. (2) Definitions. For purposes of Section , F.S., the following definitions apply: (a) Affiliate organization of a third-party voter registration organization means any person, as defined in Section 1.01(3), F.S., that is associated with the third-party voter registration organization as a subordinate, subsidiary, member, branch, chapter, as a central or parent organization, or through direct or indirect ownership or control. Ownership or control means substantial and effective, though not necessarily predominant, ownership or control. (b) Engaging in any voter registration activities means that the organization is soliciting for collection or collecting voter registration applications from Florida voter registration applicants. (c) Force majeure means any event or occurrence of societal significance beyond the reasonable control and without the fault of the third-party voter registration organization which could not have been prevented, avoided, or overcome by the exercise of reasonable care, diligence, or foresight of the third-party voter registration organization, including, but not limited to, civil disturbances or acts of war; extraordinarily severe weather, such as hurricanes, floods, or tornadoes; or shortages of food, electric power, or fuel.

21 Case 1:11-cv CKK-MG-ESH Document Filed 08/10/12 Page 19 of 42 (d) Impossibility of performance means an actual impossibility or impracticability of compliance as the result of a condition or circumstance which the third-party voter registration organization did not create and could not reasonably have anticipated. (e) Registration agent means any individual who is employed by or volunteers for a third-party voter registration organization and who solicits for collection or who collects voter registration applications from Florida voter registration applicants on behalf of the organization. (3) Registration. (a) Before engaging in any voter registration activities, a third-party voter registration organization (hereinafter organization ) shall complete and file Form DS-DE 119 with the Division. The organization must submit the form as an attachment in pdf format in an to 3PVRO@dos.myflorida.com or transmit the form to the Division s facsimile machine at (850) An affiliate organization which itself independently engages in separate solicits for collection of or collects voter registration applications from Florida voter registration applicants on behalf of the affiliate must file a Form DS-DE 119 even if its affiliated organization has filed a Form DS-DE 119. An organization shall also use Form DS-DE 119 to update or terminate its registration. (b) Upon receipt of an organization s initial and completed registration, the Division shall assign the organization a unique third-party voter registration organization identification number that begins with 3P. An organization is not deemed registered as a third-party voter registration organization until the Division issues the organization its identification number. (c) A registration agent must complete, sign, and date Form DS-DE 120 before beginning his or her duties for the organization and the organization must ensure the form is submitted to the Division within 10 days after the form is signed. Form DS-DE 120 may be submitted to the Division when the organization submits its initial Form DS-DE 119. For any addition to the list of its registration agents or change in information about a registration agent other than termination of a registration agent, the organization shall submit an updated Form DS-DE 119. For permissible means of notifying the Division of the termination of a registration agent, See paragraph (6)(b). (c)(d) A registration agent may be a registration agent for one or more organizations, but each organization must ensure that the registration agent submits a separate Form DS-DE 120 for its organization. (d)(e) An organization shall submit any change in information previously submitted to the Division, including any addition to the list of its employee registration agents, any termination of an employee registration agent, or change in information about an employee registration agent, within 10 days following the change. A change is not considered filed until the Division receives the change. Notice of termination of an employee registration agent shall be provided as set forth in paragraph (6)(b). (e)(f) Except as otherwise provided in paragraph (6)(b), any forms or amendments or additions to forms required under this subsection must be submitted in the same manner of transmission required for the Form DS-DE 119 used to initially register an organization. (4) Voter Registration Applications Provided to and Used by Third-Party Voter Registration Organizations. (a) All voter registration applications provided by the Division and each supervisor of elections to an organization shall include the third-party voter registration organization identification number on the bottom of the reverse side of each voter registration application in a manner that does not obscure any other entry. (b) The registration agent or the organization shall print the date and time that the voter registration applicant delivered completed the application to the registration agent in a conspicuous space on the bottom portion of the reverse side of the voter registration application it collects from a voter registration applicant in a manner that does not obscure any other entry. The date and time printed by the registration agent or the organization shall be in the following numerical format: MM/DD/YY; hh:mm am/pm. For example, if the voter registration applicant completed the application on May 15, 2014 at 1:30 p.m., the entry on the bottom portion of the reverse side of the application shall be: 5/15/14; 1:30pm. The entry for an application completed on October 11, 2014 at 11:30 a.m., would be printed as 10/11/14; 11:30am on the bottom portion of the reverse side of the application. (c) Each organization shall ensure that its assigned organization identification number is recorded on the bottom portion of the reverse side of any voter registration application it delivers to the Division or a supervisor of elections in a manner that does not obscure any other entry. (d) Delivery of the voter registration application by the organization to the Division or a supervisor of elections may be accomplished by in-person delivery or mail. All applications must be delivered to the Division or a supervisor of elections or be postmarked within 10 calendar days of collection by an organization or any of its registration agents. If the 10 th day falls on a weekend, holiday, or other day on which the Division or the supervisor of elections office is closed, the voter registration application must be delivered to the Division or the supervisor of elections or be postmarked by the following business day. If, however, a book closing deadline for any given election for federal or state office falls within the 10-day period described above, all applications collected by an