The district court’s permanent injunction—accompanied by a 125-page opinion of factual findings and legal analysis—remedied the State’s chaotic, unconstitutional pay-to-vote system, relying upon systems and procedures the State already employs. But in a one-sentence order with no explanation, and on the eve of the July 20 registration deadline, the en banc Eleventh Circuit has stayed the district court’s injunction wholesale. Not only has this thrown the election rules into chaos (with nearly one hundred thousand registered voters and three-quarters of a million citizens now uncertain of their eligibility to vote), it has revived the risk—and attendant chill—of prosecution for citizens who worry they will guess wrong about how much (if anything) they must pay to vote.
Inexplicably, the en banc court has done this despite declining—just four months ago—to rehear en banc a panel decision affirming the district court’s preliminary injunction in this very case and announcing a legal standard that would ensure that the vast majority of affected citizens in Florida would be eligible to vote. And remarkably, with no analysis, the en banc court stayed aspects of the district court’s injunction—its remedies for the procedural due process, vagueness, and National Voter Registration Act (“NVRA”) violations—that the State did not even challenge in its stay motion (either to the district court or the court of appeals), and the latter of which the State has abandoned on appeal.
Consider the plight now thrust upon three-quarters of a million would-be voters. In addition to having to guess (under threat of criminal prosecution) how much (if anything) they must pay to vote, now they must venture a second guess: which Eleventh Circuit decision tells them whether Florida may constitutionally require them to pay money they cannot afford in order to vote? The panel decision—left undisturbed by the en banc court then and now—that describes their constitutional rights in detail? Or the one-sentence order staying the district court’s subsequent injunction that offers no explanation of their constitutional rights?
This is not tenable. Argument is set to be heard the same day as the August primary, a month after registration closes for that election on July 20. Tens of, thousands of people who were already registered, or who registered between the time of the district court’s May 24 injunction and the Eleventh Circuit’s July 1 stay, undoubtedly already submitted vote-by-mail requests, which under Florida law are valid for all elections this calendar year. See Fla. Stat. § 101.62. Ballots for overseas voters affected by the district court’s injunction were required by state law to be mailed by July 2 (but could be mailed earlier). Id. Some overseas voters have already returned their completed ballots. Supervisors of Elections have no way to determine which among the millions of vote-by-mail applications should not be fulfilled pursuant to the Eleventh Circuit’s stay order, because the State has not yet determined for even a single voter whether they must pay to vote, and if so, how much. So they will mail the ballots to those who requested them, including those requested prior to the July 1 stay. Nor can the affected voters know whether they are eligible to complete and return the ballot they received. Those aware of the stay, but who are actually eligible under the State’s ever-shifting interpretation of its payto-vote law, will be discouraged from voting, because of the threat of prosecution emphasized on the State’s registration materials. The district court remedied the chaos inherent in the pay-to-vote system. The Eleventh Circuit resurrected that chaos, and then multiplied it.