Karla Vanessa Arcia v. Florida Secretary of State

ARCIA, Karla Vanessa Melande

Antoine, al., et Plaintiffs-

Appellants, STATE,

FLORIDA SECRETARY OF

Defendant-Appellee, Garcia, al.,

Luis I. et Intervenor

Defendants.

No. 12-15738. Appeals,

United States Court of

Eleventh Circuit.

April 2014.

MARTIN, Judgе: Circuit 8(c)(2)(A) National Voter Section Provision) (the Act Registration later than “complete, requires states primary of a the date prior to office, any Federal general election sys- tois of which purpose ineligible the names tematically remove lists of from the official 1973gg-6(c)(2)(A). § 42 U.S.C. voters.” legal center of became provision This of individual group awhen dispute Sec- sued Florida organizations and Detzner. W. Kenneth retary of State was that Florida argued plaintiffs These by conduct- Day Provision violating remove Rogers, Goldman, systematically Kristen M. ing program Marc A. rolls the voter from Kaplan, non-citizens Jenkins, Lindsay Eyler suspected Marina K. The election. days of a federal LLP, Block, within Masters, & S. Jenner Lorelie mo- plaintiffs’ denied District Court M. Cohen, Catherine Kanter Michelle injunсtion and sum- preliminary tions for a Hair, Kath- Vote, Penda Project Flanagan, judgment entered judgment, and mary Nkwonta, Culliton-Gonzalez, Uzoma erine plaintiffs The Secretary Detzner. favor Hovland, Fair Project, Ben Advancement appeal. now Network, Washington, Legal Elections Perez, Latino- Jose DC, Cartagena, Juan pro- that Florida’s we conclude Because NY, York, John PRLDEF, New Justice systematically attempt gram was PA, Leon, Leon, De& Chavez Louis De in viola- voter rolls from the names remove FL, Miami, Roberson-Young, Katherine Provision, reverse tion of the Plaintiffs-Appellants. and remand. Davis, Atkinson, Ashley E. J. Andrew PROCEDURAL AND I. FACTS Tallahassee, State, Department Florida HISTORY Carvin, M. John FL, Anthony Michael Day, Postman, Jones Gore, D. Warren Florida’s efforts concerns This case Defendant-Appellee. DC, for Washington, from ineligible voters names of remove prior rolls voter

the State’s general elections. Concerned and primary casting not citizens who are people about elections, Secretary of Florida ballots separate engaged two State Detzner non-citi- identify and remove MARTIN, JORDAN Before rolls. voter the Florida zens from Judges. SUHRHEINRICH,* Circuit * Suhrheinrich, sitting designation. by United Richard F. Honorable Circuit, Judge for the Sixth States Circuit program began first efforts non-citizens from the remove in advance of the primary election and voter rolls in advance of the 2012 general used records the Department of election. Rather than use the DHSMV Highway Safety and Motor Vehicles records, this second relied on the (DHSMV). The by started com- Department of Homeland Security’s Sys- piling registered a list of voters who hаd tematic Alien Verification for Entitlements previously presented the DHSMV with (SAVE) database. Secretary Detzner also identification —such green as cards or for- announced that he would not wait until eign passports suggesting they may — after general election to implement his be non-citizens. After putting together program. Even though there were less list, portion he sent of it to the State than before the general election, Supervisor of Elections in each county, Secretary Detzner publicly stated that he (1) instructing them to review the names planned to forward the names of regis- list, (2) on the conduct additional research tered voters identified as non-citizens in using “whatever other you have,” sources the SAVE database to Supervisors. State initiate a notice and pro- removal bеgan This case on June when cess. Secretary suspended Detzner the plaintiffs first challenged Secretary program at the end April 2012. Rec- Detzner’s efforts to remove non-citizens indicate, however, ords suspected non- prior to the Florida primary election. citizens continued to be removed from the Among other things, plaintiffs alleged voter during rolls May June, and which they were entitled to declaratory and was less than 90 before the Florida injunctive relief because the Secretary’s primary election. by actions were barred the 90 Provi- This by first effort Secretary to Detzner sion. After Secretary Detzner announced identify non-citizens was far perfect. from that he would resume the removal pur- example, For Plaintiffs Karla V. Arda and ported from non-citizens the voter rolls Melande Antoine were identified as non- using database, the SAVE plaintiffs citizen to be voters removed from the vot- amended their complaint, arguing that the This, er rolls. despite the fact that they Secretary’s program still violated the were both United States citizens to 90 Day NVRA’s Provision because of the vote in Also, the 2012 organiza- elections. proximity general election. The tions like the Florida Immigration Coali- plaintiffs sought a preliminary injunction tion, Inc., the National for Puer- summary judgment. to Rican Rights, and 1199SEIU United Healthcare (1199SEIU) Workers East di- The District Court found that the 90 verted resources from their regularly-con- Day Provision apply did not to the Secre- ducted programs and activities to counter- tary’s efforts to remove non-citizens from act the effects of the Secretary’s program. rolls voter denied plaintiffs’ These efforts included locating and assist- motions for an injunction and summary ing who had wrongly members been identi- judgment. At plaintiffs’ request, fied as non-citizens to they ensure that Court District also entered as a judgment were able to vote. matter of law in favor of Secretary Detz-

Despite these shortcomings his initial ner. appeal Plaintiffs now this ‍‌‌​‌‌​​​‌​​​‌‌‌​‌‌‌‌‌‌​​​​‌​​‌‌​​‌‌​‌‌​​‌​‌​​‌​‌‍judg- final program, Secretary Detzner renewed his ment.1 plaintiffs

1. The filed a expedite motion disfranchising eligible risked incorrect- appeal, arguing Secretary's that the program ly identified as non-citizens on eve Plaintiffs 1. Individual ISSUES II. JURISDICTIONAL merits, we must reaching the Before Arda and plaintiffs, Ms. The individual Article we have whether first determine (1) Antoine, standing have because Ms. parties and issues over jurisdiction directly injured by they were must particular, In here. presented before the 2012 Detzner’s first (1) plaintiffs have whether decide (2) they at the time election and primary this case is moot whether standing and they had established complaint, their filed passed. have the 2012 elections because injury allowing future them probable Secretary Detz- challenge prospectively A. STANDING gen- program before the ner’s second eral election. claims that Secretary Detzner organization nor the neither the individual standing Antoine had Arda and Ms. Ms. they standing because did have plaintiffs al pro- first challenge Lujan v. “injury-in-fact.” an not suffer primary election be- gram before Wildlife, 504 U.S. Defenders of directly injured by it they were cause 2130, 2136, 119 L.Ed.2d 351 wrongly identified as non- they were when (1992). standing de review issues of “We though they were ultimate- citizens. Even ” Estates Ltd. v. Hollywood Mobile novo. injury ly voting, prevented Fla., 641 F.3d Tribe Seminole stаnding. is sufficient to confer like theirs Cir.2011). (11th Standing is deter- Billups, 554 See Common Cause/Ga. complaint plaintiffs at the time the mined Cir.2009) (11th (finding F.3d 1351-52 Family v. Pinellas filed. Focus on the produce photo identifi- requirement Auth., Transit Suncoast injury was an sufficient to cation to vote (11th Cir.2003). standing though right even confer “ denied”); in fact’ the stat H. ‘Injury “wholly reflects Charles vote was not Found., Cox, person a be ‘ad utory requirement that Inc. v. Wesley Educ. (11th Cir.2005) it ‘aggrieved,’ 1349, (finding or and versely affected’ F.3d a distinguish person a with direct unable to vote injury being serves to sufficient the litigation govern- in the outcome of a state precinct stake in home because —even person with a mere though rejected small—from voter’s use of the federal ment address). States v. problem.” change interest the United form to her registration Agency Challenging Regulatory Students 14,

Procedures, Arcia and Ms. Antoine also 689 n. Ms. U.S. challenge standing prospectively 2417 n. 37 L.Ed.2d 254 have S.Ct. Secretary’s attempt second to remove that “an trifle is the (noting identifiable using from the voter rolls the injury-in-fact An involves “an non-citizens enough”). alleged When the harm protected interest SAVE database. legally invasion of here, (a) a plaintiff as it was particularized, prospective, is concrete and which (b) imminent, satisfy injury-in-fact requirement conjectural can actual or by showing imminent harm. Fla. State Lujan, 504 at hypothetical.” See U.S. or Browning, 522 NAACP v. (quotation marks 112 S.Ct. at 2136 Conf. of (11th Cir.2008). omitted). 1153, 1160-61 While F.3d and internal citations Day, plain- this Court denied general Detz- fore Election election. Based on appeal. be expedite that no citizens would their ner’s assurances tiffs’ motion to mistakenly the voter be- removed from rolls injury the threatened future cannot be tablish standing to challenge election laws merely hypothetical conjectural, proba- by showing they will have to divert enough. bilistic harm is personnel Id. at 1162-63. and time to educating potential Because Ms. Arcia and Ms. voters on compliance Antoine were with the laws and naturalized Nicaragua assisting U.S. citizens from might who be left off the respectively, registration and Haiti there was rolls on a realis- Election Day. See probability they tic Browning, would be F.3d at misiden- 1165-66. tified due to unintentional mistakes Here, all three of organizational Secretary’s data-matching process. See plaintiffs Florida Immigrant Coali- —the id. at 1163-64 (distinguishing foreseeable tion, Inc., the National Congress for Puer- injuries assumptions those based on Rights, Rican and 1199SEIU—submit- conjecture). case, being This Ms. ted affidavits showing they have missions Arcia and Ms. Antoine sufficiently estab- include voter registration and edu- lished standing based on potential er- cation, or encouraging and safeguarding rors that could occur when the rights, voter and that they had diverted attempted to immigration confirm their resources to address the Secretary’s pro- status various state and federal databas- grams. representative A from 1199SEIU ines 90-day hurried window before also testified that after some its mem- the election. bers were identified potential as nonciti- zens primary election, before the the or- Organizational 2. Plaintiffs ganization expended resources locate organizational The plaintiffs also and assist members ensure that have standing challenge Secretary Detz- they were able to vote.2 This rеdirection ner’s program based on both a diversion- of resources to counteract the Secretary’s theory of-resources and an associational removal is a concrete and demon- standing theory. injury, strable not an “abstract social in- Havens Realty terest].” Corp., 455 U.S. Under the diversion-of-resources 379,102 at S.Ct. at 1124. theory, organization has to sue standing when a illegal defendant’s acts impair organizational The plaintiffs organization’s ability to engage its own also standing have to challenge Secretary projects by forcing organization to di under an associational vert in response. resources Havens Real standing theory. An plain organizational ty Coleman, Corp. 363, 379,102 455 U.S. tiff standing has rights the ‍‌‌​‌‌​​​‌​​​‌‌‌​‌‌‌‌‌‌​​​​‌​​‌‌​​‌‌​‌‌​​‌​‌​​‌​‌‍enforce of its 1114, 1124, (1982) S.Ct. 71 L.Ed.2d 214 members “when its would members other (“[Cjoncrete and demonstrablе injury to wise standing have in their sue own the organization’s activities—with right, the con the interests at stake germane are sequent organization’s drain the on re to the organization’s and purpose, neither sources—constitutes far more than simply the claim asserted nor the requested relief a setback to organization’s the requires abstract the participation of individual interests.”). social example, For prec our members in the lawsuit.” Friends the of provides edent organizations Earth, that can es- Inc. v. Envt'l Laidlaw Servs. fact, together 2. This (2013), with Mr. Arcia and Ms. 264 L.Ed.2d in which the Court found being Antoine Secretary’s included on the list plaintiffs’ the theory standing of ”relie[d] on a non-citizens, purported of distinguish this highly possibilities.” attenuated chain of Id. Clapper Amnesty case from v. International at 1148. - USA, -, U.S. 133 S.Ct. 185 bring this standing their ly established 120 S.Ct. Inc., (TOC), 528 U.S. membеrs. of their (2000). action on behalf Based on 693, 704, L.Ed.2d on provided affidavits the of our review B. MOOTNESS we plaintiffs, organizational of the behalf argues next Secretary Detzner at stake the interests that have concluded because claims are moot plaintiffs’ that the purposes to the germane are case in this retain We passed. Further, have the 2012 elections organizations. the goals of and however, case, to decide jurisdiction sought relief injunctive declaratory and the for dis to mootness exception the because the require does organizations by the evading yet repetition of “capable putes organiza- the of participation individual here. applies review” at Browning, members. tions’ is whether issue remaining only The 1160. yet repetition, of “capable The them- organizations the of the members mootness to the evading exception review” conclude standing. We have selves (1) challenged the applies where doctrine they do. to be too short in its duration action is expira cessation litigated prior to fully of its behalf to sue on order In (2) expecta tion, there is a reasonable and need plaintiffs members, organizational will complaining party same that the tion are members their that all of not establish again. action the same subject be Rather, injury. suffering an of danger in FEC, Davis that organization rule this Circuit the in 2769-70, 171 L.Ed.2d that “at only need establish plaintiffs al omitted) moot (rejecting marks (quotation danger” a realistic member faces least one fact election despite argument ness inAs Id. at 1163. injury. suffering requirements Both of these рassed). had plaintiffs organizational Browning, here. are met matching process argue here that Sec- First, are correct plaintiffs creates databases across various too short were retary actions mis and positives of false foreseeable risk to their prior fully litigated errors, be duration to problems on user matches based cases, have stat- In election flaws cessation. process, data-matching with time “not sufficient is often ed that there databases, and similarities underlying and complaint filing at 1168 between See id. and birthdates. in names judicial resolution election obtain are foreseeable injuries “the (finding that Teper v. the election.” controversy before of unconscious expected results and (11th Cir. Miller, 989, 992 n. F.3d errors human unavoidable largely and 1996). prеs- frequently also Election cases organizational three transcription”). The elec- in future that will persist ent number of issues large represent also plaintiffs can tions, resolving disputes these Antoine, Ms. Arda Ms. like people, Here, challenges. See id. simplify future being identi danger of a realistic who face challenge could not plaintiffs removal Secretary’s fied clear it became program until Detzner’s as natu or status their names because of day 90th past it continue large that would (finding id. See ralized citizens. just election, plaintiffs giving stand before had like NAACP organizations the case became before three months high probability was a there ing because record, conclude on we this be moot. Based of members one that at least were actions here Seсretary’s mismatched). record, that the this On mistakenly fully litigated to be too short their duration have sufficient- plaintiffs organizational prior to their cessation or expiration. See non-citizens from the voter rolls less than Peters, Bourgeois 387 F.3d days 1309 90 before the 2012 elections. (11th Cir.2004) (“[W]e conclude that one A. PLAIN MEANING

year is an insufficient amount of time for a court, district circuit court appeals, “As in involving all cases statutory Supreme adjudicate typical Court construction, starting point our must be ease.”). the language employed by Congress, and we assume legislative that the purpose is Second, there is a expecta- reasonable expressed by the ordinary meaning of the tion that plaintiffs subjected these will be words used.” Am. Tobacco Co. v. Patter to Secretary program again. Dеtzner’s son, 63, 68, The District ruling Court’s not was limited 71 L.Ed.2d (quotation marks to the 2012 elections or specific pro- omitted). and internal citations “Courts gram employed by the Secretary in 2012. must assume intended the Rather, it interpreted Day Provi- ordinary meaning used, of the words sion generally to systematic allow removal absent a clearly expressed legislative in programs based on citizenship during the tent to the contrary, that language gen is last 90 before an election. The Sec- erally dispositive.” Gonzalez v. McNary, retary has also not offered to refrain from (11th Cir.1993) (quota similar 90-day within the win- omitted). tion marks Because is a Thus, dow in the future. there is a rea- case involving statutory construction, our expectation sonable that the plaintiffs will first task is to determine whether Secre subject be to the same action аgain. tary Detzner’s program.is barred under reasons, For these jurisdiction we have plain meaning of the 90 Day Provision. case, over this even though the 2012 elec- We believe that it is. passed. tions have First, the purpose of Secretary Detz- program ner’s clearly was to remove the

III. DISCUSSION names of “ineligible voters” from the Flori- We now turn to the merits of this da voter rolls. The National Regis- Voter dispute. primary The issue here involves (NVRA) tration Act premised on the the statutory interpretation of the 90 Day assumption that citizenship is one Provision, which is codified at 42 U.S.C. requirements eligibility See, to vote. § 1973gg-6(c)(2)(A). The 90 Provi e.g., 42 §§ 1973gg-3(c)(2)(C)(i), U.S.C. sion requires that: 1973gg-5(a)(6)(A)(i)(I), 1973gg-7(b)(2)(A)

A State shall complete, (requiring later than registration certain voter forms days prior to the date primary specify of a state or eligibility or “each require- gеneral office, election for ment any (including citizenship)” Federal (emphasis added)). program Thus, purpose sys- which is to pro- tematically gram remove the ineligi- names pro- remove non-citizens awas ble voters from gram eligi- “ineligible official lists of remove voters.” ble voters. Second, Secretary Detzner does not § 1973gg-6(c)(2)(A). U.S.C. The deny issue that his was an attempt to presented is “any whether program ... “systematically” remove ineligible voters systematically remove the ineligi- names of from the voter rolls. Although the statute ble voters” a program includes provides like the one no “sys- definition for the word by Secretary initiated Detzner remove tematically” “systematic,” agree 1282 encom- Provision to Day the 90 intended “sys- awas program

Secretary kind, including a any of meaning pass programs of any under program tematic” re- to Secretary Detzner’s like program Secretary Detzner’s word. the informa- move non-citizens. individualized rely ‍‌‌​‌‌​​​‌​​​‌‌‌​‌‌‌‌‌‌​​​​‌​​‌‌​​‌‌​‌‌​​‌​‌​​‌​‌‍upon not did which determine to investigation tion or to remove. registry the voter names CONTEXT B. STATUTORY compu- a mass Secretary used Rather, the AND PURPOSE compare to process data-matching

terized the 90 meaning federal of Thus, plain the state with other rolls the voter of no- that mailing indicates by the databases, Day Provision followed of category the data- telling that fall the is under Certainly, it Detzner’s actions tices. re before systematically used ... Secretary Detzner “any program that base for 42 ineligible of voters.” names election—SAVE-—stands move the general the language Entitle- The 1973gg-6(c)(2)(A). § Alien Verification Systematic U.S.C. however, Provision, not Day of the 90 ments. a expounding “In inquiry. of our the end sug- “any program” Finally, phrase the single by a guided statute, must not be we a has Day Provision that the 90 gests sentence, but member of or sentence Supreme Court meaning. Both broad law, and of the whole provisions look to con- had occasion have Court and this Colortex, F.3d 19 In re policy.” to its In “any.” meaning of word sider the Cir.1994) (11th (quotation 1371, 1375 Gonzales, Supreme v. States United omitted). Here, statutory con marks naturally, that “[r]ead noted Court but further of the NVRA and policy text meaning, that expansive an ‘any’has word mean plain that conclusion tresses our whatev- of indiscriminately some is ‘one or systematically ... “any program ing of ” 1032, 1, 5, 117 S.Ct. er kind.’ was ineligible voters” names of remove (1997) (quoting 132 1035, L.Ed.2d 137 to include by Congress intended Dictio- International Third New Webster’s like Detzner’s. (1976)). way, this In the same nary 97 Congress does for a First, that when allowed Congress expressly has held Court Day Provi- limiting breadth the 90 language any exceptions of not add number Merritt v. of non- word, means all. removals “any” sion, exception for and an of that Co., Directly 1186 after 120 F.3d one of Paper them. Dillard citizens is Riviera includes (11th Cir.1997); City Lyes Provision, v. the statute the 90 of (11th Cir.1999); Beach, states: which limiting provision, Castro, F.2d States United not be shall Day Provision] [The Cir.1988) “any” that (11th (concluding the removal preclude (i) construed — “all”). long his- “This “every” meant on a of voters lists from official of names important, meaning is tory of established (3)(A) or paragraph basis described Congress readily presume because (a) this (B) (4)(A) of subsection or definition legal the settled knows (ii) registration section; correction the settled uses, them in and uses words it subchapter pursuant records Gamer, F.3d Harris v. sense.” Thus 1973gg-6(c)(2)(B). § 42 U.S.C. Cir.2000). (11th The fact exception creates limiting provision “any applies to us now before provision for “correction Day Provision strongly suggests program” 1283 (1997) and also directs us L.Ed.2d registration (observing records”3 818 that an “ex- § exceptions 1973gg- of the plicit listing exceptions” to several of indicates that (the Provision). 6(a) General Removal “Congress did not intend courts to read Provision, The General Removal which unmentioned, other open-ended, ‘equitable’ time, any of governs the removal voters at statute”). exceptions into the The fact registrants may that the names of states did expressly include not be removed from the voter rolls ex- removals on citizenship based in its ex- cept: haustive exceptions Day list of to the 90

(3)(A) request of registrant; at the good Provision is evidеnce that such re- (B) law, by by reason provided as State prohibited.4 movals are incapaci- of criminal conviction or mental Finally, purposes the stated of the Na- ty ... Registration tional sup- Voter Act further (4)(A) registrant; the death of the or port reading our Day of the 90 Provision. (B) change the residence of the The purposes NVRA states that its are: registrant ... (1) to procedures establish that will in- § 1973gg-6(a)(3)-(4). Reading Id. these eligible crease the number of citizens provisions together, two ex- NVRA register who to vote in elections for pressly allows states to conduct three office; Federal types during of final 90 removals (2) Federal, possible to make it for They before a federal election. are remov- State, governments and local im- (1) (2) request registrant; als at the plement this Act in a manner that law, provided by by as State reason of participation enhances the incapacity; criminal conviction mental citizens as elections for (3) upon registrant. death of the See office; Federal § 1973gg-6(c)(2)(B) (citing id. id. protect integrity the elec- § 1973gg-6(a)(3)-(4)). process; toral Noticeably absent from the list (4) to ensure that accurate and current exceptions Day 90 to the Provision is registration voter rolls are main- any for exception removal of non-citizens. tained. Congress explicitly “Where enumerates 1973gg(b). § 42 U.S.C. exceptions general prohibition, certain to a out, exceptions implied, Day additional are not to be points As amici Provi- contrary in the absence of designed carefully evidence of sion is balance these legislative intent.” four competing purposes Andrus Glover the NVRA. Co., 608, 616-617, Constr. Brief 100 of Current and Former Election Of- 1905, 1910, (1980); Curiae, S.Ct. 64 L.Ed.2d ficials as Amici 14-15. For exam- Brockamp, by see also States v. reach ple, limiting United its 347, 352, “systematically” U.S. remove voters from the Court, argued pro- reject 3. The has not that his Like the District inter gram registra- constitutes a "correction” of pretation. exception any An "as removal tion records. provided by State law” render the completely superfluous. See In Provision suggests excep- 4. Detzner that the (11th Griffith, re Cir. law, provided by tion for removals "as State 2000) ("[C]ourts interpreta should disfavor by reason of criminal conviction or mental language super tions of statutes render incapacity” be read to could authorize the ...”) omitted). (quotation fluous. marks removal of noncitizens from voter rоlls. (“[T]he (1968) is left with State L.Ed.2d Day permits Provision rolls, the 90 voter voting, which regulate to powers broad informa- on individualized based removals amici, relating qualifica- to the may include laws to According any time. tion at electors.”). functions of tions and are safe to conduct individualized removals of removal is type any time because this at attempts reject Secretary Detzner’s We correspondence individual usually based on both the today decide whether to have us inquiry, leading rigorous or individualized Day the 90 Provision and Removal General mistakes. chance for to a smaller of non-citi- allow for removals Provision of the Certainly interpretation an re- zens. systematically that programs For prevents Provision that however, Removal voters, Congress decided to General movе removing non-citizens would during Florida from most times cautious. At be more regarding concerns systemat- raise constitutional benefits of cycle, the the election qualifi- Congress’s power to determine the costs because programs outweigh ic in elec- eligible federal incorrectly re- cations of are voters who eligible Tribal Council Inter rectify any tions. Arizona v. enough time to moved have Cf. — Arizona, Inc., U.S.-, 133 S.Ct. days an elec- In the final before errors. of (2013) (“Ari- Eligi- 186 L.Ed.2d tion, however, changes. the calculus Elections is correct Clause days or weeks before zona that ble voters removed regulate how feder- empowers Congress Day likely not be able Election will held, may not who vote al elections are but errors time to vote. correct the State’s them.”). convinced, are not howev- We why Day the 90 Provision strikes This is er, Secretary’s perceived need systematic re- that the permits It careful balance: Re- exception in the General equitable for the an any except at time moval requires also us to find that is moval Provision an because before election Day in the 90 Provi- exception the same disfranchising of when the risk before us have parties sion. None of greatest. voters is reach unconstitu- argued we would DETZNER’S if we found that SECRETARY tional result in this case C. systematic Day prohibits INTERPRETATION the 90 Provision Constitutional of non-citizens. removals responds that inter- Secretary Detzner in a later case only arise concerns would Day prohibit Provision to preting question of squarely presents which non-citizens would systematic removals of the General Removal Provision whether Be- concerns. grave create constitutional altogether. removal of bars noncitizens Day and the Gener- cause the 90 Provision case, get that Con- And before we ever many share al Removal Provision change language could gress § 1973gg- see 42 U.S.C. exceptions, same assuage any Removal Provision to General 6(c)(2)(B), Secretary Detzner believes mind, concerns. With this constitutional statutory provides text the NVRA to the ruling apply confine our we will only options: two either non-citi- us with and meaning of Provision plain time, any at or may zens be excluded invitation to Secretary Detzner’s decline according option, all. The latter at go further. Detzner, dilute the votes Secretary argues next rights of Detzner trample on the of citizens NVRA, Congress only con- drafting the qualifiсations and regulate states to people who were templated the removal Williams v. functions of voters. See vote, not the removal of Rhodes, once entitled (like eligibility had people reject Secretary who never non- We also Detzner’s sug- citizens). distinction, In support gestion of this that there a categorical differ- (1) argues Detzner that non-citizens ence registrants between who are ineli- technically “registrants,” gible are not and re- to vote on account of their citizenship moving them from the voter rolls is not registrants are ineligible who really a “removal” because non-citizens vote because history of their criminal supposed on the voter rolls were never to mental capacity. Registrants in any of be there from the start. He also observеs categories those could ineligible be to vote that all the to the exceptions General Re- at the time their registration they of or moval Provision relate to voters who be- could eligibility lose their later. For ex- (like ineligible come those who fel- ample, become while some voters lose eligibil- their mentally incapacitated) ity ons or rather than they register to vote after because of a ineligible those voters who are at time criminal conviction or mental incapacity, (like non-citizens). registration of their may other voters ineligible have been the same reasons at the time of their outset, At the skeptical we are of registration. In way, the same while Sec- arguments about what retary Detzner is correct that a non-citizen Congress may may or not have contem registrant may ineligible have been to vote plated drafting job when the NVRA. Our at registered, the time that he a citizen statutory language is to honor the broad in could also lose his citizenship regis- after Provision, Day unambiguous the 90 which tering, thereby losing eligibility his to vote. ly covers like Detz 1481(a)(5) § See 8 (describing U.S.C. ner’s. See Oncale v. Sundowner Offshore procedure for a United citizen States Seros., Inc., 75, 79, 118 S.Ct. renounce or citizenship). his her U.S. (1998) (“But 1002,140 201 L.Ed.2d statuto Thus, we accept Secretary do not Detz- ry prohibitions go beyond princi often argument ner’s that the NVRA distin- pal reasonably evil to cover comparable guishes between the regis- removals of evils, ultimately provisions and it is of ineligible tered voters who become to vote our principal laws rather than the concerns registrаnts who were never in legislators by of our which gov we are place. the first erned.”); Pa. Dep’t Yeskey, v. 524 of Corr. 206, 212, 1952, 1956, Finally, Secretary U.S. 118 S.Ct. Detzner’s limited in- (1998) (“[T]he L.Ed.2d 215 fact that terpretation Day a stat of the 90 Provision would ute can applied be situations not ex require also us to conclude—as the Dis- pressly anticipated by Congress does not trict did—that Day Court the 90 Provision ambiguity. only demonstrate It demonstrates prohibits registrants the removal of omitted)). (quotation breadth.” marks who ineligible moving We become to vote after engage are not allowed to in “purpose- to a different state. This is because the 90 statutory driven interpretation Day at the ex adopts exceptions Provision all of the pense specific provisions.” Myers v. from the General Removal Provision ex- 1278, 1286 TooJay’s Mgmt. Corр., 640 F.3d cept allowing for the one for removals (11th Cir.2011) omitted); (quotation marks change based on a residence. See 42 (“When presented § see id. with the plain 1973gg-6(c)(2)(B). U.S.C. an in- Such statute, however, text gaze of a we do not at it terpretation, functionally blurry-eyed, attempting to see some hid meaning phrase “any eviscerate the of the image by program” Day den formed the broad purpose Provision. See legislation.”). lies behind the Ballinger, United States v. Day Provi- of the 90 Cir.2005) were violation it is “a here (11th (noting that NVRA; such granting statutory construc- sion principle cardinal interests of the needs and further relief as upon the ought, “a statute tion” require. that, justice if it can be whole, so construed to be sentence, clause, or word no prevented, REMANDED. AND REVERSED void, insignificant”) superfluous, shall be Andrews, 534 U.S. JORDAN, concurring: TRW Inc. (quoting Judge, Circuit L.Ed.2d 339 correctly explains, Judge As Martin (2001)). Congress wrote Surely when 90-Day the so-called language of plain “any pro- applied Provision Provision, § 1973gg-6(e)(2)(A), 42 U.S.C. provision intended for it gram,” like using programs, states prohibits at just programs aimed than apply to more Florida’s, remove sus- systematically If have moved. who rolls from the voter non-citizens pected result, it could have a limited such wanted There a federal election. within Inc. v. PrimeTime CBS said so. See given the textual debate is little room for (11th Venture, 1217, 1226 Joint statutory language directed of broad use Cir.2001) (“[WJhere how Congress knows remove “any program” systematically at to, its something but chooses say rolls, the and the ineligible voters from (quotation marks controlling.” silence is one citizenship lack of as failure to include omitted)). result, accept we cannot As a the bar exceptions to express interpretation. Secretary Detzner’s during the systematic removals against v. U.S. 90-day period. See Lamie quiet that our closing, emphasize In 526, 534, 1023, Trustee, 124 S.Ct. 540 U.S. Day does of the 90 Provision interpretation (“[W]hen (2004) the stat- 157 L.Ed.2d using from any way handcuff a state not in function of plain, the sole language ute’s are that noncitizens its resources to ensure disposition least where the the courts—at Day The 90 in the voter rolls. not listed by the text is not absurd —is required only pro by applies its terms Provision terms.”) (inter- according it to its enforce remove the “systematically” grams which omitted). Indeed, if quotation nal marks result, As a the ineligible names of voters. the ex- 90-Day spelled out Provision a state would not bar Provision removals, systematic to the bar on ceptions investigаting potential non-citizens them from the cross-referencing instead of individ removing them on basis Provision Removal General information, 90- ualized even within (4)(A)), (§ & the out- 1973gg6(a)(3)(A)-(B) Day Provi All that the 90 day window. statutory in would be the come this case purpose is a whose prohibits sion dunk, text because the equivalent of a slam names of remove the “systematically is to read like so: would the voter rolls with ineligible voters” from (2)(A) complete, not later a federal elec A State shall days in the last 90 before to the date of 1973gg-6(c)(2)(A). prior § than 90 tion. 42 U.S.C. Federal general election for primary IY. CONCLUSION office, purpose any program systematically remove which is to reasons, we reverse the Dis- these For the offi- voters from ineligible names of judgment as a matter grant of trict Court’s voters. cial lists of and remand Detzner of law (A) (1) (B) not be con- shall Subparagraph to enter ‍‌‌​‌‌​​​‌​​​‌‌‌​‌‌‌‌‌‌​​​​‌​​‌‌​​‌‌​‌‌​​‌​‌​​‌​‌‍an order instructions with preclude— actions strued to Secretary Detzner’s declaring that (i) obtaining the removal of names from official State from the information nec- essary request qualifications.”). of a to enforce its voter [at lists of law, by registrant; provided as State problems To avoid the by created by reason of criminal conviction or 90-Day interaction between the and Gen- incapacity; mental or the death of the Provisions, eral Removal we would wel- registrant]; or come the venerable doctrine of constitu- (ii) registration correction records tional if “fairly avoidance it were possible” pursuant subchapter. to this statutory read the in language any oth- Benson, way. er See Crowell v. 285 U.S. This the exсep- case is difficult because 22, 62, (1932). 52 S.Ct. 76 L.Ed. 598 90-Day tions to the Provision also consti- “But important even so a canon of statuto- (with slight changes language) tute ry construction as that favoring the avoid- permissible per- bases for the removal of ance of serious questions constitutional any from voter at time sons rolls under always does not carry day,” Gutierrez Provision, the General Removal and an de Lamagno, Martinez v. 515 U.S. “established canon of construction [is] 437,115 2227,132 S.Ct. L.Ed.2d 375 language similar contained within the same (O’Connor, J., concurring part and con- section of statute must be accorded con- curring judgment) (emphasis meaning.” sistent Nat’l Credit Union Ad- original), and it not do does so here be- Co., Nat’l Bank min. First & Trust cause it require give us to U.S. 140 L.Ed.2d 1 plainly NVRA a a textual reading. See (1998). exceptions If the limited to the States, Salinas v. United 60- 90-Day Provision mean that states cannot 61, 469, 118 S.Ct. 139 L.Ed.2d 352 systematic programs use to remove non- (“[Although] should be [statutes construed the citizens from voter rolls within 90 questions, avoid constitutional ... this election, aof federal then —because of the interpretive canon is not a license for the symmetry 90-Day of the Provision and the judiciary to language by rewrite enacted Removal Provision —it ap- General would conclusion, legislature.... Any the other pear to follow that states also cannot re- purporting judi- while to be an exercise in move non-citizens from the voter rolls at restraint, cial upon pow- would trench the Florida, any time. See United States (internal Congress[.]”) quota- ers vested in (N.D.Fla.2012). F.Supp.2d 870 1349 omitted). tion marks and citations instinctively Such a result is difficult to Florida, accept, may require courts to decide to the district court in Like 870 Congress what extent can constitutionally F.Supp.2d persuaded by at I am not authority limit the Secretary’s argument states’ determine the the the word qualifications eligible of “registrant” federal the General Removal Pro- Const, I, 2, 4; only §§ elections. See art. per- U.S. vision should be read to mean a Detzner, F.Supp.2d Arda v. 908 1284 properly register son who could to vote (S.D.Fla.2012). place. Arizona v. Inter Trib- the first not de- The NVRA does Cf. — Arizona, Inc., U.S.-, “registrant,” al Council fine and we must therefore 2247, 2258-59, give “ordinary meaning.” 186 L.Ed.2d 239 the word its See — (2013) (“Since Ltd., power Taniguchi Saipan, to establish vot- v. Kan Pac. ing requirements -, 1997, 2002-03, is of little value without U.S. 132 182 S.Ct. (2012). power enforce requirements, those L.Ed.2d 903 In when Con- NVRA, ... it raise gress “registrant” serious constitutional enacted the if a precluded registers; [especially] doubts federal statute a meant “оne who one 1288 language context in which regis- ry securing an official by

who virtue found”). title of right or specific a tration obtains and use.” Webster’s possession Third New problems would arise Any constitutional (1993). Dictionary International squarely presenting only in a future case 2 The New ShorteR

See also En- Oxford the General Removal application (1993) (a registrant Dictionary glish arises, any such case Provision. Before a [especially] registers, who person is “[a] ability change Congress has the gains particular by doing so who person Provi- of the General Removal language entitlement”). ordinary mean- Given (as modify the ability as the sion well incor- word, linguistically it is ing of the 90-Day if it so to the Provision exceptions “registrant” is a say person that a rect to desires). so, do the court it not Should legally eligible only if he or she is may have to addressing such a future case regis- that come with the benefits receive argument confront Indeed, register can person tration. un- of the NVRA an portion drafted a to the if he is not entitled something even constitutional manner. why That is the reason ‍‌‌​‌‌​​​‌​​​‌‌‌​‌‌‌‌‌‌​​​​‌​​‌‌​​‌‌​‌‌​​‌​‌​​‌​‌‍ensuing benefits. observations, join Judge I With these Provision lists sever- the General Removal in full. opinion for the court Martin’s may be registrants where al circumstances the official list of “removed SUHRHEINRICH, Judge, Circuit § 1973gg-6(a)(3). voters.” U.S.C. dissenting: briefs, by parties’ As made clear judgment of the dis I would affirm the 90- reading NVRA’s possible each reasons set forth in the trict court for the Provisions does Day and General Removal Areia v. Detz opinion, district court’s see to the present or future violence some (S.D.Fla.2012), ner, as F.Supp.2d choice, statutory scheme. Givеn reasoning of States v. well as the United here, I opt for under the circumstances (N.D.Fla. Florida, F.Supp.2d 1346 statutory text as reading applies 2012). respectfully I therefore dissent. interpretation written and surrender purpose-driven from a view that comes to avoid Act and concomitant desire I do this questions.

future constitutional interpret calls on us to

because this case NVRA, the only 90- provision one HARRISON, Jody O’Neil Provision, certainly it reason- is Plaintiff-Appellant, (and constitutional) able removals of noncitizens systematic

limit 90-day from the voter rolls within Sylvester Folks, CULLIVER, Grantt differently, the result quiet period. Stated al., Defendants-Appellees. et not an absurd one. See this case is No. 11-14864. Shinseki, 1342, 1349 Durr v. (11th Cir.2011) (explaining the ab- Appeals, States Court United surdity only in the “rare applies canon Eleventh Circuit. plain language of a situations where April 2014. isolation, statute, at least where read absurd and yields a result both the entire statuto-

completely at odds with

Case Details

Case Name: Karla Vanessa Arcia v. Florida Secretary of State

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Apr 1, 2014

Citation: 746 F.3d 1273

Docket Number: 12-15738

Court Abbreviation: 11th Cir.