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State of v. United States of America

October 28, 2011

STATE OF FLORIDA, PLAINTIFF,
v.
UNITED STATES OF AMERICA, AND ERIC H. HOLDER, JR., IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL OF THE UNITED STATES,
DEFENDANTS, KENNETH SULLIVAN, ET AL., DEFENDANT-INTERVENORS.



MEMORANDUM OPINION

Plaintiff, the State of Florida ("Florida"), brings this civil action against Defendants, the United States of America and the Attorney General of the United States (together, the "United States"), seeking (i) judicial preclearance of recent changes to Florida's election laws under Section 5 of the Voting Rights Act of 1965 (the "VRA"), 42 U.S.C. § 1973c, or (ii) barring such preclearance, a declaration that the VRA's preclearance requirement and underlying coverage formula are unconstitutional. Several parties have been granted leave to intervene permissively as defendants, including registered Florida voters who are members of racial and language minority groups and organizations that have a special interest in the administration of Florida's election laws (collectively, "Defendant-Intervenors").

Currently before the Court is Florida's [41] Motion to Expedite. Filed on October 18, 2011, Florida's motion asks the Court to set an expedited schedule for the resolution of this action. That schedule would have the parties conduct discovery, brief motions for summary judgment, and submit proposed findings of fact and conclusions of law within the next seven weeks, in advance of Florida's presidential preference primary on January 31, 2012. It would then have the Court conduct any evidentiary hearings, hear argument, and render a decision before the same deadline. The United States and Defendant-Intervenors oppose Florida's motion and jointly request that the Court instead adopt their proposal for a less onerous but nonetheless accelerated schedule. Upon consideration of the parties' submissions, the relevant authorities, and the record as a whole, the Court will DENY-IN-PART Florida's [41] Motion to Expedite. The Court also declines at this time to adopt the alternative schedule proposed by the United States and Defendant-Intervenors. The Court will instead hold a scheduling conference before finalizing an expedited schedule for further proceedings.

I. BACKGROUND

The VRA prohibits any "voting qualification or prerequisite to voting or standard, practice, or procedure" that is "imposed or applied . . . in a manner which results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color," 42 U.S.C. § 1973(a), or membership in a "language minority group," id. § 1973b(f)(2).*fn1 This action focuses on the VRA's preclearance requirement. Under Section 5 of the VRA, any covered jurisdiction seeking to implement a change to its voting standards, practices, or procedures must first demonstrate that the change "neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color," id. § 1973c(a), or membership in a "language minority group," id. § 1973b(f)(2). Jurisdictions may seek preclearance from the Attorney General or a three-judge panel of this Court. See id. § 1973c(a).When administrative preclearance is sought, the Attorney General has a default period of sixty days to approve the proposed changes, interpose an objection, or request additional information. See id.; 28 C.F.R. §§ 51.37, 51.41, 51.44.

Five Florida counties-specifically, Collier, Hardee, Hendry, Hillsborough, and Monroe Counties (collectively, the "Covered Counties")-have been designated by the Attorney General as "covered" jurisdictions under Section 4(b) of the VRA, 42 U.S.C. § 1973b(b). Accordingly, Florida may not implement any change to its voting standards, practices, or procedures in the Covered Counties unless and until it obtains administrative or judicial preclearance.

On May 19, 2011, the Governor of Florida signed into law Florida House Bill 1355 (the "Act"), codified at Chapter 2011-40, Laws of Florida, an omnibus election law making several changes to the Florida Election Code and other Florida statutes. Three weeks later, on June 9, 2011, Florida commenced the administrative preclearance process on behalf of the Covered Counties by submitting the Act to the Attorney General for his review. Florida did not request expedited administrative review. See 28 C.F.R. § 51.34(b) ("When a submitting authority demonstrates good cause for expedited consideration the Attorney General will attempt to make a decision by the date requested.").

On July 29, 2011, fifty days into the administrative review process, Florida withdrew from the Attorney General's consideration four changes that had received heightened attention during the review process. Summarily stated, those four changes address: (1) the procedures governing third-party voter registration organizations; (2) the time frame during which signatures for citizen initiatives for constitutional amendments are valid; (3) election-day polling place procedures for voters who have moved from the voting precinct in which they are registered to a precinct in a different county; and (4) early voting procedures, including the duration of the early voting period (collectively, the "Four Changes"). Following Florida's unilateral withdrawal of the Four Changes, the Attorney General proceeded to review the remainder of the Act's changes and precleared those changes on August 8, 2011, within the sixty-day default review period.

On August 1, 2011, well over two months after the Act became effective, Florida commenced this action seeking judicial preclearance of the Four Changes. See Compl. for Declaratory J., ECF No. [1]. Florida made no request for expedited consideration of the action at that time. Though it states that it provided the United States with a courtesy copy of its anticipated complaint earlier, Florida took three weeks to formally serve the United States with process. See Aff. of Service, ECF No. [7]; Aff. of Service, ECF No. [8].

On September 30, 2011, Florida announced that it had selected January 31, 2012 as the date for its presidential preference primary election. See Presidential Preference Primary Date Selection Committee Selects January 31, 2012 (Sept. 30, 2011), http://www.dos.state.fl.us/news/ communications/pressRelease/pressRelease.aspx?id=538. The United States avers, and Florida does not dispute, that Florida could have instead selected a date as late as the first week of March, 2012. See id.

On October 11, 2011, Florida filed an amended complaint to add claims for the first time challenging the constitutionality of the VRA's preclearance requirement and underlying coverage formula. See First Am. Compl. for Declaratory J., ECF No. [39]. On October 24, 2011, with the United States' and Defendant-Intervenors' consent, Florida sought leave to amend its complaint a second time to include a request for judicial preclearance of a state regulation adopted on October 13, 2011 to implement one of the Four Changes. See Consent Mot. for Leave to Amend the Compl. and P. & A. in Supp., ECF No. [52]. The Court granted such leave on October 25, 2011, see Min. Order (Oct. 25, 2011), and Florida's Second Amended Complaint remains the operative iteration of the complaint in this action, see Second Am. Compl. for Declaratory J., ECF No. [54].

On October 18, 2011, nearly five months after the Act became effective and two-and-a-half months after Florida commenced this action, Florida filed the pending Motion to Expedite. See Pl.'s Mot. to Expedite and Stmt. of P. & A. in Supp. ("Pl.'s Mem."), ECF No. [41]. The Court set an expedited briefing schedule "[i]n order to permit a prompt ruling on the motion." Min. Order (Oct. 19, 2011). Consistent with that schedule, the United States and Defendant-Intervenors filed their oppositions on October 24, 2011. See United States' Resp. to Florida's Mot. to Expedite and the United States' Req. for a Scheduling Conference ("United States' Opp'n"), ECF No. [50]; Def.-Intervenors' Joint Mem. in Opp'n to Pl.'s Mot. to Expedite ("Def.-Intervenors' Opp'n"), ECF No. [51]. Florida filed its reply on October 26, 2011. See Pl.'s Reply in Supp. of Mot. to Expedite ("Pl.'s Reply."), ECF No. [53]. In an exercise of its discretion, the Court finds that holding oral argument on the motion would not assist the Court in rendering its decision. See LCVR 7(f) (providing that the allowance of an oral hearing on a motion "shall be within the discretion of the court"). Accordingly, the motion is now ripe for a decision.

II. LEGAL STANDARD

It is well established that district courts enjoy broad discretion when deciding case management and scheduling matters, see, e.g., In re Vitamins Antitrust Class Actions, 327 F.3d 1207, 1210 (D.C. Cir. 2003); McSheffrey v. Exec. Office for U.S. Attorneys, No. 00-5268, 2001 WL 674640, at *1 (D.C. Cir. May 4, 2001) (per curiam), a discretion ...


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