Michael Polelle v. Florida Secretary of State

131 F.4th 1201

• Court: Court of Appeals for the Eleventh Circuit
• Decided: March 11, 2025
• Docket: 22-14031
• Status: Published

Opinion

USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 1 of 112

[PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 22-14031 ____________________

MICHAEL J. POLELLE, Plaintiff-Appellant, versus FLORIDA SECRETARY OF STATE, SARASOTA COUNTY SUPERVISOR OF ELECTIONS,

Defendants-Appellees.

Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 8:22-cv-01301-SDM-AAS ____________________ USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 2 of 112

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Before ROSENBAUM, ABUDU, and TJOFLAT, Circuit Judges. ROSENBAUM, Circuit Judge: Michael J. Polelle is a voter in Sarasota County, Florida, who has not registered with a political party. As a result, Florida’s closed system of primary elections prevents him from participating in any political party’s primary. At the same time, though, the Republican primary has de- termined the outcome of most Sarasota County elections since the 1960s. So Polelle filed suit claiming Florida’s law puts him to an unconstitutional “Hobson’s choice,” requiring that he either forfeit his right to a meaningful vote or forfeit his right not to associate with political groups and messages. The district court dismissed Polelle’s lawsuit because it concluded he has not suffered an injury that gives him standing to sue in the federal courts and, alterna- tively, because he failed to state a claim for relief on the merits. After careful consideration, and with the benefit of oral ar- gument, we agree with the district court’s decision to dismiss Polelle’s case. But we do so after reaching the merits. Polelle has adequately alleged that he suffered an injury in fact, traceable to Defendant-Appellee Sarasota County Supervisor of Elections Ron Turner and redressable by the federal courts. As Polelle points out, he has both the right to a meaningful vote and the right not to as- sociate with certain political groups and messages. And Florida’s closed primary burdens those rights. Still, that Polelle has suffered an injury sufficient to engage the federal courts’ jurisdiction does not itself entitle him to relief. USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 3 of 112

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And under the relevant Anderson-Burdick 1 framework for evaluat- ing First and Fourteenth Amendment claims like Polelle’s, Florida’s legitimate interests in preserving political parties as viable and iden- tifiable interest groups and enhancing candidates’ electioneering and party-building efforts outweigh the minimal burdens on Polelle’s First and Fourteenth Amendment rights. Florida’s system of closed primary elections may put Polelle to a “Hobson’s choice,” but it does not do so unconstitutionally. I. BACKGROUND The facts of this case are straightforward. Michael J. Polelle is a current resident of and registered voter in Sarasota County, Florida. When he registered to vote, Florida law required him to declare whether he affiliates with a political party and, if so, which one. See Fla. Stat. § 97.052(2)(j). Polelle declared “No Party Affili- ation.” Although Florida law permits him to change his party reg- istration no later than 29 days before the relevant primary election, id. § 97.055, he has not and will not do so. As a result, Polelle can- not vote in future Florida primaries for partisan offices.2

1 Anderson v. Celebrezze, 460 U.S. 780 (1983); Burdick v. Takushi, 504 U.S. 428

(1992). 2 Florida distinguishes between political offices that are partisan and non-par-

tisan. For example, elections for judicial offices are non-partisan. See Fla. Stat. § 105.061. A voter’s party affiliation (or lack of one) does not impact their ability to participate in non-partisan primary elections. See id. (describing elec- tor qualifications for non-partisan elections); id. § 105.041 (describing the form of the ballot for non-partisan primaries). USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 4 of 112

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That’s because Florida’s primaries are closed: “[i]n a primary election[,] a qualified elector is entitled to vote the official primary election ballot of the political party designated in the elector’s reg- istration, and no other.” Id. § 101.021. In fact, “[i]t is unlawful for any elector to vote in a primary for any candidate running for nom- ination from a party other than that in which such elector is regis- tered.” Id. This rule has one exception. In 1998, Floridians amended their constitution to except universal primary contests from the usual system of closed primaries. In a universal primary contest, “all candidates for an office have the same party affiliation and the winner will have no opposition in the general election.” FLA. CONST. art. VI, § 5(b). When that situation occurs, under Florida’s constitutional amendment, “all qualified electors, regardless of party affiliation, may vote in the primary elections” for that affected office. Id. But this provision applies only if a primary election is formally dispositive of the outcome of a general election. So if, for instance, the general election permits write-in candidates, then Florida’s Constitution does not require a universal primary. Brinkmann v. Francois, 184 So. 3d 504, 514 (Fla. 2016). That means Polelle, and more than 3.5 million other Floridians who USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 5 of 112

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registered “No Party Affiliation,” 3 generally may not vote in any political party’s primary. And that’s so even when, as Polelle alleges is the case here, the primary is functionally dispositive of the outcome of the general election. “Republican primaries,” for instance, “have determined the outcome of most Sarasota County’s partisan elections since 1968.” In fact, “the last non-Republican candidate elected to the Sarasota County Commission was in 1966, almost 58 years ago.” 4 So Polelle filed suit pro se under 42 U.S.C. § 1983 against De- fendants-Appellees Cord Byrd, Florida Secretary of State, and Ron Turner, Supervisor of Elections for Sarasota County, Florida (col- lectively, “Defendants,” “the State,” or “Florida”). He alleged three claims for relief: (1) a violation of his First Amendment freedoms from compelled speech or association; (2) a violation of his funda- mental right to vote, as secured by the First and Fourteenth Amendments; and (3) a violation of his rights to the equal protec- tion of the laws, as secured by the Fourteenth Amendment.

3 Voter Registration - By Party Affiliation, FLORIDA DIVISION OF ELECTIONS (Aug.

14, 2024), https://dos.fl.gov/elections/data-statistics/voter-registration-sta- tistics/voter-registration-reports/voter-registration-by-party-affiliation/ [https://perma.cc/M7C6-J2LU]. 4 Carrie Seidman, In Sarasota County, Voters May Find It’s Better To Switch Than

Stick, SARASOTA HERALD-TRIB. (May 10, 2024), https://www.heraldtrib- une.com/story/opinion/columns/2024/05/10/sarasota-county-voters-are- embracing-the-need-to-switch-parties/73629882007/ [https://perma.cc/YV62-R7KW]. USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 6 of 112

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To address these alleged violations, Polelle sought two forms of relief: a declaration that Florida’s closed-primary statute, Fla. Stat. § 101.012, and its universal-primary exception, FLA. CONST. art. VI, § 5(b), violate the First and Fourteenth Amendments both facially and as applied to him; and an injunction prohibiting De- fendants from enforcing those provisions or any others that pre- vent Polelle from voting in future primary elections while he main- tains his “Not Party Affiliated” status. Defendants Secretary Byrd and Supervisor Turner filed sep- arate motions to dismiss Polelle’s complaint. They argued that Polelle lacked standing to challenge Florida’s primary elections sys- tem and, in the alternative, that he failed to state a claim for relief. Both arguments stemmed from the position that a putative voter does not have a constitutional interest in voting in the primary elec- tion of a political party to which that person does not belong. The district court granted Defendants’ motions. It accepted the argument that Polelle had only a “desire” to vote in a party pri- mary, not a legally protected interest sufficient to afford him stand- ing to sue in the federal courts. And, the district court held, even if Polelle had standing, Polelle failed to state a claim. The court con- cluded that Florida’s interest in preventing unaffiliated voters’ po- tential to undermine a political party’s candidate-selection process outweighed Polelle’s desire to vote in a partisan primary election, especially given the minimal burdens that Florida law imposes on voters who wish to join or switch political parties. Polelle timely appealed. USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 7 of 112

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II. STANDARDS OF REVIEW We review de novo the threshold jurisdictional question of whether plaintiffs enjoy standing to sue in the federal courts. Mu- ransky v. Godiva Chocolatier, Inc., 979 F.3d 917, 923 (11th Cir. 2020) (en banc). And because standing involves our jurisdiction, we must raise sua sponte any issues related to standing that we spot. AT&T Mobility, LLC v. Nat’l Ass’n for Stock Car Auto Racing, Inc., 494 F.3d 1356, 1360 (11th Cir. 2007). As to the merits, we review de novo an order granting a mo- tion to dismiss with prejudice. Young Apartments, Inc. v. Town of Ju- piter, 529 F.3d 1027, 1037 (11th Cir. 2008). In conducting our review, “we must accept the complaint’s allegations as true, construing them in the light most favorable to the plaintiff.” Arrington v. Burger King Worldwide, Inc., 47 F.4th 1247, 1253 (11th Cir. 2022). To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also FED. R. CIV. P. 8(a)(2). In other words, a plaintiff must “plead[] factual content that allows the court to draw the rea- sonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). III. DISCUSSION Our discussion proceeds in two parts. First, we address De- fendants’ jurisdictional arguments that Polelle lacks standing to sue in the federal courts. We conclude he has standing to sue Supervi- sor Turner. But Polelle has failed to show his injuries are traceable USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 8 of 112

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to Secretary Byrd, so Polelle lacks standing to sue him. Second, we consider the merits of Polelle’s complaint. We conclude that he has failed to state a claim for relief. So the district court correctly dismissed Polelle’s suit. A. Polelle has standing to sue for violations of his First and Four- teenth Amendment rights. Article III of the Constitution limits federal courts to decid- ing “Cases” and “Controversies.” U.S. CONST. art. III, § 2. That limitation, which we call “standing,” “defines with respect to the Judicial Branch the idea of separation of powers on which the Fed- eral Government is founded.” Alabama-Tombigbee Rivers Coal. v. Norton, 338 F.3d 1244, 1252 (11th Cir. 2003) (quoting Allen v. Wright, 468 U.S. 737, 750 (1984)). It stems from “concern about the proper—and properly limited—role of the courts in a democratic society.” Warth v. Seldin, 422 U.S. 490, 498 (1975). Polelle must make three showings to enjoy standing to sue in a federal court: (i) that he “suffered an injury in fact that is con- crete, particularized, and actual or imminent”; (ii) that Secretary Byrd or Supervisor Turner (or both) “likely caused” his injury; and (iii) that a favorable judicial decision can likely redress his injury. TransUnion LLC v. Ramirez, 594 U.S. 413, 423 (2021). If Polelle does not satisfy his burden on all three requirements, “there is no case or controversy for the federal court to resolve.” Id. (quoting Casil- las v. Madison Ave. Assocs., 926 F.3d 329, 333 (7th Cir. 2019)). And in that case, we lack jurisdiction. USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 9 of 112

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Here, all three requirements are at issue. Both Defendants assert that Polelle has not experienced an injury in fact. And Sec- retary Byrd contends that, even if Polelle has suffered an injury in fact, Polelle failed to plead that Secretary Byrd caused Polelle’s in- jury and, therefore, that an injunction or declaration against Secre- tary Byrd would redress Polelle’s injury. We address each argument in turn. 1. Polelle alleges an injury in fact sufficient to confer stand- ing to sue in the federal courts. “It is beyond cavil that ‘voting is of the most fundamental significance under our constitutional structure.’” Burdick v. Taku- shi, 504 U.S. 428, 433 (1992) (quoting Ill. Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184 (1979)). In light of voting’s importance, Polelle argues that he suffers an injury when Florida excludes him, a political-party non-affiliate, from participating in partisan primary elections that effectively de- termine the political choice for certain public offices. Polelle fur- ther asserts this exclusion burdens a constellation of related consti- tutional rights—his right to a meaningful vote, his right not to as- sociate with political groups and messages, and his right to the equal protection of the laws. 5

5 Polelle also contends that he has standing to sue Supervisor Turner as a mu-

nicipal taxpayer because Sarasota County allocates a portion of his ad valorem tax proceeds to operate the partisan primary elections in which he cannot par- ticipate. Because we conclude that Polelle has traditional standing to sue USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 10 of 112

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Defendants do not dispute that Polelle’s alleged injuries sat- isfy many of the defining characteristics of an injury in fact. They don’t contest that his alleged injuries are “concrete,” “particular- ized,” and “actual” or “imminent.” Nor could they. Polelle’s alleged injuries are certainly particularized. That is, they are “individual and personal in nature,” Reynolds v. Sims, 377 U.S. 533, 561 (1964), as opposed to generalized grievances that an- ybody could pursue, Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99–100 (1979). Our precedent in Jacobson v. Florida Secretary of State exemplifies this distinction. There, we held that voters “have no judicially enforceable interest in the outcome of an election.” 974 F.3d 1236, 1246 (11th Cir. 2020) (citing Raines v. Byrd, 521 U.S. 811, 819, 824, 830 (1997)). A voter suffers no “particularized” injury when their preferred candidate or ballot measure fails. See Raines, 521 U.S. at 819, 829 (concluding legislators suffer “no injury to themselves as individuals” when a President vetoes a line-item in a bill for which they voted). If a voter did, after any election, as much as nearly half the population could claim injury without any show- ing that they have a “‘personal stake’ in the alleged dispute.” Id. at

Supervisor Turner, we do not address his taxpayer-standing arguments. And although we conclude Polelle does not have traditional standing to sue Secre- tary Byrd, we do not assess whether Polelle has standing to sue Secretary Byrd as a taxpayer. Polelle claimed standing as a municipal taxpayer only, not as a state taxpayer aggrieved with Secretary Byrd’s execution of a statewide office. See Pelphrey v. Cobb County, 547 F.3d 1263, 1280 (11th Cir. 2008) (recognizing “the distinction between standing of municipal taxpayers and standing of fed- eral or state taxpayers”). USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 11 of 112

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819; see Wood v. Raffensperger, 981 F.3d 1307, 1314–15 (11th Cir. 2020) (“[I]rregularities in the tabulation of election results do not affect Wood differently from any other person,” including “the four mil- lion or so Georgians who voted in person this November.”). By contrast, we and the Supreme Court have long recog- nized that voters assert a “particular injury” when they allege their “inability to vote in a particular election,” Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 312 n.14 (1986), or when some government action undermines the effectiveness of their vote, see Gill v. Whit- ford, 585 U.S. 48, 65–68 (2018). And Polelle alleges those depriva- tions here: that Florida’s closed-primary statute limits his “ability to vote” in certain primary elections and ensures that his “vote [is not] given the same weight as any other.” Jacobson, 974 F.3d at 1246. So Polelle’s complaint adequately identifies “disadvantage[s] to [him- self ] as [an] individual[].” Gill, 585 U.S. at 65–66 (quoting Baker v. Carr, 369 U.S. 186, 206 (1962)). Polelle’s injuries are also imminent. Polelle squarely alleges that “[u]nless this Court intervenes, Defendants will continue to . . . prohibit [him] from voting in” future Florida primary elec- tions and deny him the right to an effective vote. These allegations are sufficient to show his injuries are “certainly impending.” Clap- per v. Amnesty Int’l USA, 568 U.S. 398, 410 (2013). Without declara- tory or “injunctive relief,” nothing will stop those “harm[s] from occurring.” TransUnion, 594 U.S. at 435; City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983); cf. Hero v. Lake Cnty. Election Bd., 42 F.4th 768, 772 (7th Cir. 2022) (“A routine past harm, such as denial of access USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 12 of 112

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to a ballot, presents a textbook example an ‘actual’ injury suf- fered.”). And Polelle’s asserted injuries are undoubtedly “concrete.” The “concreteness” requirement ensures the alleged injury is “‘real,’ and not ‘abstract,’” Spokeo, Inc. v. Robins, 578 U.S. 330, 340 (2016), so “that the plaintiff has a real stake in the litigation,” Drazen v. Pinto, 74 F.4th 1336, 1339 (11th Cir. 2023) (en banc). Tangible harms, such as “physical injury and financial loss,” easily satisfy this requirement. Id. But intangible harms may also be concrete. Id. When we evaluate whether an asserted intangible injury can satisfy Article III’s concreteness requirement, we consider “whether that harm has a close relationship to a harm that has tra- ditionally been regarded as providing a basis for a lawsuit in English or American courts.” Drazen, 74 F.4th at 1343 (cleaned up). And in making that comparison, we consider only whether the asserted harm is “similar in kind” to the traditional harm; the injuries need not be of the same “degree” or severity. Id. at 1344. Constitutional injuries are prototypical concrete injuries. TransUnion, 594 U.S. at 425. After all, “where there is a legal right, there is also a legal remedy by suit or action at law.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803) (citation omitted). So the First and Fourteenth Amendments’ possible protection of Polelle’s asserted rights renders his injuries concrete. But voting-rights claims are also concrete independent of their constitutional make-up; they are the “kind” of injury for which Americans have always sued to seek redress. “For most of USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 13 of 112

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the nation’s history”—indeed, well before Americans ratified the Fourteenth Amendment, which now constitutionally secures Americans’ voting rights—voters sought common-law remedies when an “election official,” either “mistakenly or intentionally,” de- nied “a voter’s ballot or registration.” 6 Note, Voting Wrongs and

6 As we explain in the text, the harm stemming from an election official’s in-

terference with a person’s vote at common law is similar in kind (if not the same as) the harm arising from the government’s degradation of a person’s vote in modern elections. Still, we note one distinction between voting-rights claims at common law and those Polelle now brings: a mens rea element. In some circumstances, plaintiffs had to prove that a defendant “by a consciously wrongful act intentionally deprive[d]” them “of a right to vote in a public elec- tion.” RESTATEMENT (FIRST) OF TORTS § 865 (Am. L. Inst. 1939). Even so, that scienter element does not affect the concreteness of Polelle’s injury because it is not “essential to the harm” in the relevant common-law comparator, Dra- zen, 74 F.4th at 1343 (quoting Hunstein v. Preferred Collection & Mgmt. Servs., 48 F.4th 1236, 1249 (11th Cir. 2022) (en banc))—a deprivation of his voting rights. Instead, mens rea presents a question of a defendant’s “culpability” and “blame- worth[iness].” Morissette v. United States, 342 U.S. 246, 252 (1952). True, in some circumstances, a defendant’s mental state may relate to the degree of in- jury or causation; some courts have concluded intentional conduct is more likely to cause a more severe injury than would result in the case of an accident or negligence. Cf. Raybon v. United States, 867 F.3d 625, 632 (6th Cir. 2017) (explaining the extent of an injury can prove the intent to cause the requisite quantum of harm). But a defendant’s mental state does not change the kind of injury a defendant inflicts upon a plaintiff. And it’s the kind of injury, as opposed to the degree of injury, that’s at the core of our concreteness analysis. Drazen, 74 F.4th at 1343; see Hunstein, 48 F.4th at 1256 (Pryor, C.J., concurring) (“We apply TransUnion’s simple rule that an element must be present if that element is necessary for the presence of the harm that was traditionally action- able.” (emphasis in original) (citation omitted)). After all, if an election official denies a voter’s ballot or dilutes or nullifies the effectiveness that ballot, the USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 14 of 112

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Remedial Gaps, 137 HARV. L. REV. 1182, 1182 (2024). In fact, “[t]hat private damage may be caused by” the infringement of a person’s right to vote “and may be recovered for in suit at law hardly has been doubted for over [three] hundred years.” Nixon v. Herndon, 273 U.S. 536, 540 (1927). And we have long recognized that states may abridge a per- son’s right to vote by means other than simply denying that per- son’s ballot in a general election. Voters, for instance, have a con- crete interest in “maintaining the effectiveness of their votes” that forms of “dilution” may impair. Baker, 369 U.S. at 208 (quoting Coleman v. Miller, 307 U.S. 433, 438 (1939)); see Jacobson, 974 F.3d at 1246 (“Voters . . . have an interest in their ability to vote and in their vote being given the same weight as any other.”). And those inter- ests are no less important because they occur in a primary election: “If the defendants’ conduct was a wrong to the plaintiff[,] the same reasons that allow a recovery for denying the plaintiff a vote at a final election allow it for denying a vote at the primary election that may determine the final result.” Nixon, 273 U.S. at 540; see also United States v. Classic, 313 U.S. 299, 310, 314 (1941) (concluding “[i]nterference with the right to vote” may occur in a primary that is the “only stage of the election procedure when” a voter’s “choice is of significance”). So Polelle has adequately pled an imminent, particular, and concrete injury.

voter suffers harm whether the election official acted intentionally, uninten- tionally, in good-faith, or in bad-faith. USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 15 of 112

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Still, Defendants argue that Polelle lacks standing because he has not alleged a deprivation of a “legally protected interest.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992); see Trichell v. Midland Credit Mgmt., Inc., 964 F.3d 990, 996–97 (11th Cir. 2020) (“Each sub- sidiary element of injury—a legally protected interest, concrete- ness, particularization, and imminence—must be satisfied.”). They claim Polelle has no “constitutional right” to or “interest” in “se- lecting the candidate of a group to which one does not belong, if indeed [that] can even fairly be characterized as an interest.” Cal. Democratic Party v. Jones, 530 U.S. 567, 573 n.5 (2000). Rather, they assert, “only the party proper, and not individual members of the party, may challenge a state’s regulation of a political party’s pri- mary.” Osburn v. Cox, 369 F.3d 1283, 1287 (11th Cir. 2004). We disagree. Defendants’ contention conflates the merits with standing and mischaracterizes the injuries that Polelle asserts. The Supreme Court has been clear that “standing in no way depends on the merits of the plaintiff’s” claim. Warth, 422 U.S. at 500; see Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 576 U.S. 787, 800 (2015) (explaining “one must not confuse weakness on the merits with absence of Article III standing” (cleaned up)). And we have similarly cautioned that “in reviewing the standing question,” we “must be careful not to decide the questions on the merits for or against the plaintiff.” Culverhouse v. Paulson & Co., 813 F.3d 991, 994 (11th Cir. 2016) (quoting City of Waukesha v. EPA, 320 F.3d 228, 235 (D.C. Cir. 2003)) (cleaned up). So we generally assess plaintiffs’ standing “assum[ing] that on the merits the plaintiffs USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 16 of 112

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would be successful in their claims.” Id. (quoting City of Waukesha, 320 F.3d at 235). For that reason, a plaintiff alleges “the invasion of a legally protected interest” when a “plaintiff has a right to relief if the court accepts the plaintiff’s interpretation of the constitutional or statu- tory laws on which the complaint relies.” CHKRS, LLC v. City of Dublin, 984 F.3d 483, 488 (6th Cir. 2021) (citing Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89–90 (1998)). As a result, asserting the deprivation of a constitutional interest normally satisfies standing’s injury-in-fact requirement. To be sure, we have noted that “our standing analysis” may require “us to take a ‘peek’ at the merits” of a party’s constitutional claim. Club Madonna, Inc. v. City of Miami Beach, 924 F.3d 1370, 1382 (11th Cir. 2019). But we entertain that “limited inquiry into the merits of the plaintiff’s claim to determine [only] whether the in- jury the plaintiff asserts might stem from a violation of [a] constitu- tional guarantee.” Cone Corp. v. Fla. Dep’t of Transp., 921 F.2d 1190, 1204 n.35 (11th Cir. 1991) (emphasis added). In other words, an infirmity in the merits transforms into a jurisdictional defect only where “such a claim is wholly insubstantial and frivolous.” Bell v. Hood, 327 U.S. 678, 682–83 (1946) (discussing subject-matter juris- diction); see CHKRS, LLC, 984 F.3d at 489 (extending Bell to stand- ing). Our precedent shows this principle in action. In Club Ma- donna, for instance, we held that the plaintiff club lacked standing to assert First Amendment claims to recover the costs of complying USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 17 of 112

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with the City’s ordinance regulating nude establishments. Club Ma- donna, 924 F.3d at 1375–76. We explained the club lacked standing because it could not “clear the low bar of demonstrating that the challenged provisions are at least arguably vague as applied to it.” Id. at 1383 (emphasis added). Similarly, we held in Bowen v. First Family Financial Services that the plaintiffs lacked standing to challenge a lender’s practice of requiring customers to sign an arbitration agreement. 233 F.3d 1331, 1333 (11th Cir. 2000). We reached that conclusion because, as in Club Madonna, the plaintiffs in Bowen could not show that the lender would take “some action that at least arguably violate[d]” any law. Id. at 1340 (emphasis added). The bottom line is that plaintiffs allege a legally protected interest when they meet the “low bar” of pointing to some arguable or colorable federal or constitutional in- terest. 7

7 The speculative nature of an alleged injury may also require us to peek at the

merits. See, e.g., J.W. ex rel. Williams v. Birmingham Bd. of Educ., 904 F.3d 1248 (11th Cir. 2018) (concluding students lacked standing to challenge police use of an incapacitating chemical spray because each student had an estimated .4% chance of being subject to the spray and a .0003% chance of being subject to an unconstitutionally excessive use of the chemical spray); Corbett v. Transp. Sec. Admin., 930 F.3d 1225, 1238 (11th Cir. 2019) (holding plaintiff failed to show an imminent injury because the chance the TSA would screen him un- constitutionally was “entirely too speculative”). But no one argues Polelle’s alleged injury is speculative, and we find no basis to reach that conclusion, either. In any case, because the “legally protected interest” requirement over- laps so heavily with the merits of a plaintiff’s constitutional claim, we must be careful to dismiss suits for lack of a “legally protected interest” only when a USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 18 of 112

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Polelle clears that hurdle here. His claims are certainly col- orable. For starters, voters undoubtedly “have an interest in their ability to vote and in their vote being given the same weight as any other.” Jacobson, 974 F.3d at 1246; cf. id. (concluding Jacobson lacked standing because she “failed to identify any difficulty in vot- ing for her preferred candidate or otherwise participating in the po- litical process”). And the First Amendment, as incorporated through the Fourteenth Amendment, secures Polelle’s freedom “from state dis- crimination based on the content of his speech.” Duke v. Massey, 87 F.3d 1226, 1232 (11th Cir. 1996); see W. Va. State Bd. of Educ. v. Bar- nette, 319 U.S. 624, 642 (1943) (“[N]o official, high or petty, can pre- scribe what shall be orthodox in politics . . . or other matters of opinion or force citizens to confess by word or act their faith therein.”). That includes Polelle’s freedom from exclusion from primary elections based on his political non-affiliation. See Duke, 87 F.3d at 1232 & n.6 (addressing Duke’s exclusion from a Republican primary ballot because of his claimed “Nazi ties”). Plus, under the Equal Protection Clause, a voter’s injury in fact “is the denial of equal treatment” through some state-created “barrier” that does not apply to all voters or “that makes it more difficult for members of one group” to participate in the electoral process. Common Cause/Georgia v. Billups, 554 F.3d 1340, 1351 (11th

plaintiff cannot assert any possible constitutional interest. Otherwise, we risk dismissing “every losing claim . . . for want of standing.” Initiative & Referen- dum Inst. v. Walker, 450 F.3d 1082, 1092 (10th Cir. 2006) (en banc). USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 19 of 112

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Cir. 2009) (emphasis added) (quoting Ne. Fla. Chapter of Assoc. Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 666 (1993)). So the First and Fourteenth Amendments ultimately pro- tect, and Florida’s law ultimately burdens, in some form, each of the interests Polelle asserts in his complaint. A requirement that forces Polelle to either register with a political party (which the First Amendment allows Polelle to refuse) or forfeit his ability to cast a meaningful ballot (an opportunity the Fourteenth Amend- ment guarantees) places him at a conceivable disadvantage com- pared to other voters who affiliate with political parties. And it does so potentially in violation of the Equal Protection Clause. That is all our standing precedent requires of Polelle at this stage. Supreme Court precedent confirms our characterization of Polelle’s injuries. In Nader v. Schaffer, voters brought the exact same First and Fourteenth Amendment claims that Polelle now brings. 417 F. Supp. 837, 842 (D. Conn.), aff’d mem., 429 U.S. 989 (1976). The three-judge panel there resolved the complaints on the merits, ra- ther than standing. See id. at 850 (concluding Connecticut’s closed primaries were “constitutionally permissible”). And the Supreme Court affirmed the panel’s decision. We discuss Nader’s rationale in greater detail when we assess the merits of Polelle’s claims. But for now, it’s worth emphasizing that our holding that Polelle has alleged legally protected interests sufficient to confer standing to sue in the federal courts comports with Supreme Court precedent. So as for Defendants’ contention that Polelle claims a right to or associational interest in selecting candidates for the USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 20 of 112

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Republican Party of Florida, or any other political party, that is wrong. As we’ve explained, Polelle filed suit to vindicate his own right to “vote in elections with the same effectiveness as party vot- ers” without “forfeit[ing] his other fundamental right not to associ- ate or identify himself with political parties.” In other words, Polelle claims injury because he can’t vote at the critical juncture of the election for certain public offices, not because the State pre- vents him from voting for a Republican candidate specifically. The relief Polelle requests also shows this to be the case. Alt- hough Polelle has acknowledged that he would vote in a party pri- mary if granted the opportunity, he has also disclaimed a request for an injunction requiring Defendants to issue him a ballot for and accept his vote in future party primaries should that relief infringe political parties’ associational interests. Rather, he asks that the dis- trict court declare the current system of closed partisan primaries facially unconstitutional and prevent its enforcement, permitting the State and its officials to choose among potentially constitu- tional alternatives. These facts also make Osburn and Jones—cases on which De- fendants rely—unhelpful to Defendants, at least on the issue of standing. In Osburn, Georgia voters tried to close an “open” primary that enabled citizens to vote in any political party’s primary USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 21 of 112

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regardless of their political affiliation.8 369 F.3d at 1286. We held that those voters lacked standing to assert First Amendment claims because the political party was the one with the “right to both ex- pand and limit the persons that the party wishes to include in its primary elections.” Id. at 1287. The associational right to exclude voters from a primary belonged not to the party’s “individual members” but to the “party proper.” Id. at 1287. In other words, the plaintiffs lacked standing to bring the First Amendment claims because those asserted interests were not “individual and personal in nature,” Reynolds, 377 U.S. at 561—the voters attempted to assert rights held by an organization that they did not represent. In contrast to our conclusion that the voters lacked standing to assert First Amendment claims, we reached the merits of the voters’ claims that Georgia’s open primary system violated the Fourteenth Amendment, Fifteenth Amendment, and Section 2 of the Voting Rights Act (“VRA”). Osburn, 369 F.3d at 1288. We did so because those claims plainly concerned “disadvantage[s] to” the voters “as individuals.” Baker, 369 U.S. at 206. To state claims for relief, we explained, the voters had to show that, under the open primary system, “they lack[ed] the equal opportunity to participate in the political process,” Osburn, 369 F.3d at 1288 (emphasis added) (Fourteenth Amendment), and that “they ‘[had] less opportunity

8 One distinguishing feature of an open primary is that “the voter is limited to

one party’s ballot.” Jones, 530 U.S. at 577 n.8. So for example, a voter who chooses to vote in the Republican primary—whether affiliated with that party or not—must vote in the Republican primary for each office. USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 22 of 112

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than other members of the electorate to participate in the political process and to elect representatives of their choice,’” id. (emphasis added) (quoting 52 U.S.C. § 10301(b)). Polelle asserts a claim here that’s analogous to the Osburn plaintiffs’ Fourteenth Amendment, Fifteenth Amendment, and VRA claims: that the closed primary limits the effectiveness of his vote. So Osburn supports, if not compels, the conclusion that Polelle has suffered and will imminently suffer an injury in fact. Jones does not help Defendants, either. There, California en- acted a “blanket” primary. 530 U.S. at 570. Under that system, every voter could vote in the primary, and every voter’s primary ballot listed every candidate, regardless of the voter’s affiliation. Id. The top vote-getter affiliated with each party became that party’s nominee in the general election. Id. After four political parties as- serted that the regime violated their First Amendment rights, the Court held the blanket primary unconstitutional because it in- truded into the height of each political party’s associational inter- est, “the process of selecting its nominee.” Id. at 571, 575, 586. This ruling does not bear on whether Polelle has standing here for three reasons. First, Jones did not address the question of whether voters have standing to challenge a state’s system of primary elections. The relevant parties were California and the local political organi- zations, not putative voters. In fact, the Court clarified that voters’ right to a meaningful vote, among other things, was not “really at issue.” Id. at 573 n.5. As the Court confirmed, “[s]electing a USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 23 of 112

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candidate”—the First Amendment right that the political parties asserted—“is quite different from voting for the candidate of one’s choice” or “cast[ing] a meaningful vote”—the claim Polelle raises. Id. So the Court did not consider the question of whether voters have standing to argue that a closed primary infringes their rights to an effective vote, to be free of political coercion, or to the equal protection of the laws. Second, and relatedly, the Court concluded that voters’ rights were not really at issue because California did not choose a tailored means of securing them; rather, the State needlessly in- fringed the political parties’ right to choose their nominee. Id. at 585–86; see also N.Y. State Bd. of Elections v. Lopez Torres, 552 U.S. 196, 207 (2008) (“[I]t is hard to understand how the competitiveness of the general election has anything to do with respondents’ associa- tional rights in the party’s selection process.”). California’s error was that it failed to disaggregate voters’ interests in a meaningful vote from the political parties’ right to select their candidate. In- stead, the State contended that “the only way to ensure [voters] have an ‘effective’ vote is to” enact a blanket primary. Jones, 530 U.S. at 583. But that contention was incorrect. As the Court made clear, California’s blanket primary was “not a narrowly tailored means of furthering” the State’s compelling interest in ensuring fair elections for voters in “safe” districts. Id. at 585–86. Had California wished to pursue its asserted interests, the Court reasoned, California “could [have] protect[ed] them all by resorting to a nonpartisan USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 24 of 112

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blanket primary,” id. at 585, or, potentially, an open primary, see id. at 577 n.8. And as it turns out, those are the forms of primary elections that Polelle argues Florida could enact should he succeed on the merits. So the “constitutionally crucial” distinction between the issue in Jones and the claims that Polelle now asserts is that Polelle seeks to obtain redress for his own concrete injuries—his right to a meaningful vote, among other things—and that requested redress is “not inherently incompatible” with political parties’ “First Amendment rights.” Id. at 586 (explaining “the State of California” made those rights incompatible by “forcing political parties to as- sociate with those who do not share their beliefs”). Third, even if we were to assume that Defendants properly characterized Polelle’s complaint as asserting a right to or associa- tional interest in selecting the candidates of a political party to which Polelle does not belong (they do not), we cannot say such an assertion is so “wholly insubstantial and frivolous” that he lacks standing. To start, a nonmember’s desire to participate in a political party’s primary may not inherently burden the political party’s right to select its candidate. Jones suggested this when it expressly reserved the question of whether open primaries are facially un- constitutional. See id. at 577 n.8. The Court recognized that the open primary “may be constitutionally distinct” from “the blanket primary” because the use of only “one party’s ballot” could “be described as an act of affiliation with” that party sufficient to limit USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 25 of 112

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the constitutional burden on parties concerned about outsiders se- lecting their candidate. 530 U.S. at 577 n.8 (quoting Democratic Party of U.S. v. Wis. ex rel. La Follette, 450 U.S. 107, 130 n.2 (1981) (Powell, J., dissenting)). We similarly don’t pass on the constitutionality of a manda- tory open primary. We don’t need to because Jones expressly left open the possibility that Polelle may participate as a nonmember in a political party’s primary without substantially burdening the party’s associational interests, at least if he does so through a single- party ballot (like the one Florida already uses). See, e.g., Democratic Party of Haw. v. Nago, 833 F.3d 1119, 1125 (9th Cir. 2016) (upholding Hawaii’s open primary in part because “the extent of the burden that” it “imposes on the Democratic Party’s associational rights is a factual question on which the Party bears the burden of proof ”); Miller v. Cunningham, 512 F.3d 98, 106 (4th Cir. 2007) (Wilkinson, J., dissenting from the denial for rehearing en banc) (criticizing the panel opinion for its narrow ruling that did not broadly declare Vir- ginia’s open primary constitutional). And that means, even under Defendants’ interpretation of Polelle’s complaint, his legal position is not so “wholly insubstantial and frivolous” that we lack jurisdic- tion. And even if Polelle’s asserted interests substantially con- flicted with political parties’ First Amendment rights (they do not), Jones’s narrowest reading is not that Polelle lacks a constitutional interest but that his interests just don’t overcome a party’s right to select its candidate. Indeed, the Court rejected as uncompelling USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 26 of 112

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California’s asserted interest in supporting safe-district voters’ right to an effective vote because “a nonmember’s desire to participate in the party’s affairs is overborne by the countervailing and legiti- mate right of the party to determine its own membership qualifi- cations.” Id. at 583 (quoting Tashjian v. Republican Party of Conn., 479 U.S. 208, 215 n.6 (1986)). The Court added that “[t]he voter’s desire to participate does not become more weighty simply be- cause the State supports it.” Id. at 583–84. Because Jones focused on the relative “weight[]” of the State and political parties’ inter- ests, id. at 584, its conclusions went to the merits, not standing. Plus, even if we assumed that Defendants properly charac- terized Polelle’s complaint and correctly read Jones as bearing on Polelle’s standing (they do not), Defendants’ arguments still fail. In Clingman—which issued five years after Jones and one year after Os- burn—the Supreme Court rejected on the merits—and not for lack of standing—voters’ and a political party’s attempt to open Okla- homa’s semi-closed primary.9 544 U.S. at 598. A majority of the Court concluded that the voters had constitutionally protected in- terests in voting in the primary elections of parties to which they did not belong. See id. at 599 (O’Connor, J., concurring in part and concurring in the judgment) (“[R]espondents’ claim implicates im- portant associational interests.”); id. at 608 (Stevens, J., dissenting)

9 In a semi-closed or semi-open primary, “a political party may invite only its

own party members and voters registered as Independents to vote in the party’s primary.” Clingman, 544 U.S at 584. Voters registered with political parties may not vote in another political party’s primary. USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 27 of 112

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(“[T]he voters in this case certainly have an interest in associating with the LPO.”). So again, even Defendants’ reading of Jones doesn’t make Polelle’s claims so “wholly insubstantial and frivo- lous” that Polelle failed to plead a legally protected interest. The Partial Dissent disagrees with our assessment of Polelle’s claim and Defendants’ arguments. Based on the preceding analysis, it characterizes Polelle’s claim as nothing more than a complaint that his vote is insufficient to ensure the election of his preferred candidate. Part. Diss. Op. at 10–11. And if the Partial Dissent were correct and Polelle’s only proffered injury were simply that his preferred candidate lost, he would not have standing to sue. See Jacobson, 974 F.3d at 1246. But as we’ve already explained, Polelle premises his claims on opportunity, not outcome. Indeed, as even the Partial Dissent recounts, Polelle alleges that he lacks the same “opportunity to affect the outcome of a general election” as do his peers who can partic- ipate in the outcome-determinative primary election. 10 Part. Diss. Op. at 10 (emphasis added).

10 The Partial Dissent suggests our distinction between outcome and oppor-

tunity is mere wordplay. Part. Diss. Op. at 11. Not so. To be sure, outcome and opportunity are related: any “abridgment of the opportunity” to “partici- pate in the political process inevitably impairs [one’s] ability to influence the outcome of an election.” Chisom v. Roemer, 501 U.S. 380, 397 (1991). But a voter’s concern about an election’s outcome does not taint the injury that lim- itations on that voter’s ability to participate in the political process inflict. Plaintiffs lack standing when they identify “an unfavorable electoral outcome, USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 28 of 112

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That Polelle can cast a ballot in the general election does not eliminate his injury. Just as voters in a packed or cracked district allege a constitutional injury despite their ability to cast a ballot in a packed or cracked election,11 see Gill, 585 U.S. at 67, voters ex- cluded from an outcome-determinative primary election allege a deprivation of their “constitutional right of choice” despite their ability to “write into their ballots” or “cast at the general election, the name of a candidate rejected at the primary,” Classic, 313 U.S. at 313, 319. The point is that an electoral scheme injures voters when it causes them to “‘waste’ their votes in elections where their chosen candidates . . . are destined to lose,” Gill, 585 U.S. at 66, for instance, by ensuring an election’s winner is necessarily determined at a prior election stage in which some voters cannot participate, see Terry v.

wholly apart from any allegation of vote dilution or nullification” or denial. Jacobson, 974 F.3d at 1247 (emphasis added). And that is not the case here. Polelle claims to suffer an injury because he cannot participate in a primary that decides the election. That kind of limitation on Polelle’s opportunity to participate in the political process is a particularized, actual, and concrete in- jury. See Stachura, 477 U.S. at 312 n.14 (“[T]he Court recognized that the plain- tiff had suffered a particular injury—his inability to vote in a particular election . . . .”); see also Jacobson, 974 F.3d at 1246; Classic, 313 U.S. at 313, 319. 11 “Cracking” and “packing” are terms that come up sometimes in gerryman-

dering cases. “Cracking means dividing a party’s supporters among multiple districts so that they fall short of a majority in each one. Packing means con- centrating one party’s backers in a few districts that they win by overwhelm- ing margins.” Gill, 585 U.S. at 55 (citation omitted). The goal of cracking and packing is to reduce or eliminate the impact of the cracked and packed voters’ votes. USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 29 of 112

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Adams, 345 U.S. 461, 469 (1953) (opinion of Black, J.) (explaining Black voters’ rights had been abridged because they could partici- pate only in elections that were “no more than the perfunctory rat- ifiers of the choice that has already been made”); White v. Regester, 412 U.S. 755, 766–67 (1973) (concluding a combination of Texas’s primary regulations—a majority-vote prerequisite and a ballot- place rule–-afforded Black voters in Dallas County “less oppor- tunity . . . to participate in the political process” by reducing a mul- timember election to a “head-to-head contest for each position” that their preferred candidate would not win). And that’s the case for Polelle here. Even if he can write in his preferred candidate in the general election, he claims he has lost the opportunity to cast a meaningful ballot because the closed pri- mary in which he claims he cannot participate effectively deter- mines the outcome of the general election. See Classic, 313 U.S. at 319 (refusing to ignore “that the practical influence of the choice of candidates at the primary may be so great as to affect profoundly the choice at the general election even though there is no effective legal prohibition upon the rejection . . . of the choice made at the primary”); Morse v. Republican Party of Va., 517 U.S. 186, 205 (1996) (opinion of Stevens, J.) (explaining limitations on “the opportunity for voters to participate in the” party’s primary “undercuts their in- fluence on the field of candidates whose names will appear on the ballot, and thus weakens the ‘effectiveness’ of their votes cast in the general election itself ”); cf. also Lubin v. Panish, 415 U.S. 709, 719 n.5 (1974) (doubting that a write-in option equalizes electoral oppor- tunity); Anderson v. Celebrezze, 460 U.S. 780, 800 n.26 (1983) (same). USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 30 of 112

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The Court has long recognized that states interfere with “the right of qualified voters, regardless of their political persuasion, to cast their votes effectively” by enacting a regulation that “in effect tends to give” certain groups “a complete monopoly” over the po- litical arena. Williams v. Rhodes, 393 U.S. 23, 30, 32 (1968). So to point out, as Polelle does, that “the ultimate choice of the mass of voters is predetermined when the nominations have been made,” Newberry v. United States, 256 U.S. 232, 286 (1921) (Pitney, J., concur- ring in part), is not to complain about an electoral loss—rather, it is to argue the State may not have set an equal playing field to begin with. 12 See Classic, 313 U.S. at 313, 319; Morse, 517 U.S. at 205

12 A hypothetical shows the error in the Partial Dissent’s position that Polelle

lacks an adequate injury in fact. Imagine that Congress enacted a statute bar- ring in congressional elections the use of any primary process that is outcome- determinative of the general election and that excludes voters based on parti- san affiliation. See U.S. CONST. art. I, § 4, cl. 1. Then imagine that Congress granted voters a statutory right to enforce that rule of decision. Under the Partial Dissent’s logic, even then, voters would not have standing to sue. See TransUnion, 594 U.S. at 426 (explaining Congress cannot create an Article III concrete injury). We don’t see how anyone could accurately say a plaintiff suing under that hypothetical statute claims only “an injury in law,” id. at 427, or asserts harm only because their preferred candidate lost an election. That plaintiff would sue to redress concrete harms—vote denial and electoral ex- clusion—just as Polelle does. A contrary conclusion is also at odds with Os- burn, where we considered on the merits the plaintiffs’ claims that an open primary system reduced minority voters’ ability to participate in the political process. 369 F.3d at 1288–89. And as for the Partial Dissent’s response that this hypothetical “mistakes a statutory violation for a constitutional injury,” Part. Diss. Op. at 20 n.6, the Partial Dissent misses our point. We agree there can be no standing for a statutory violation if an alleged injury isn’t concrete, USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 31 of 112

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(opinion of Stevens, J.); Clingman, 544 U.S. at 603 (O’Connor, J., con- curring in part and concurring in the judgment) (explaining that as electoral “restrictions become more severe,” perhaps with “dis- criminatory effects, there is increasing cause for concern that those in power may be using electoral rules to erect barriers to electoral competition”). The Partial Dissent resists this conclusion. It suggests “glar- ing” differences exist between the cases we cite and Polelle’s. Part. Diss. Op. at 12. In particular, the Partial Dissent tries to distinguish cases that involved racially discriminatory voting practices. See id.; see also id. at 14–15 (suggesting Osburn is inapposite because it con- cerned the Fourteenth and Fifteenth Amendments and the VRA). But the principles there remain applicable here. For voters to show that their “right . . . to vote” is “denied or abridged . . . on account of race,” they must show that their “right . . . to vote” is “denied or abridged.” U.S. CONST. amend. XV, § 1. Equally so, un- der the Fourteenth Amendment, plaintiffs generally “prove pur- poseful discrimination” by establishing that they “have less oppor- tunity to participate in the political processes and to elect candi- dates of their choice.” Rogers v. Lodge, 458 U.S. 613, 624 (1982);

particularized, and actual or imminent in the first place. But we raise the hy- pothetical to help illustrate that a concrete injury exists. Our hypothetical stat- ute would remove the barriers that prevent Polelle from engaging in the po- litical process as other voters who are party members currently do. By envi- sioning how Polelle may participate in the preliminary stages of the political process under the hypothetical statute, it helps us understand how the current system injures him: by excluding him the outcome-determinative election. USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 32 of 112

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accord Osburn, 369 F.3d at 1288. So the abridgment that Polelle al- leges—exclusion from an outcome-determinative election—“de- prive[s]” him “of voting rights.” Terry, 345 U.S. at 470 (opinion of Black, J.). That Florida abridges Polelle’s voting rights—by limiting his ability to participate in an outcome-determinative election—for reasons other than his “color,” id., does not affect his standing to sue. Rather, it goes to the extent of the burden on Polelle’s voting rights and the state’s justification for that burden—paradigmatic merits considerations.13 See Burdick, 504 U.S. at 434 (explaining

13 The Partial Dissent charges that we reach our conclusion through “sleight

of hand” and that, by compiling quotations, we create a freestanding right to vote. See Part. Diss. Op. at 13. That’s incorrect. We quote the Fifteenth Amendment and Rogers to show the distinction between two, different con- siderations in a voting-rights claim: the burden on a person’s voting rights (how a person’s right to vote is abridged or denied) and the basis on which that burden is applied unequally (on what account the abridgment or denial occurs). See Anderson, 460 U.S. at 788 & n.9 (permitting “reasonable, nondis- criminatory restrictions,” such as those “that serve legitimate state goals which are unrelated to First Amendment values”); Burdick, 504 U.S. at 434 (distin- guishing between severe restrictions and reasonable, nondiscriminatory ones). Our point is that we can separate holdings about vote abridgment and apply them to cases where the alleged abridgment is on account of something other than race—here, political affiliation. As far as we can tell, there is no precedent suggesting plaintiffs lack standing when they press valid theories of vote abridgment simply because the alleged deprivation is because of political affil- iation. To the contrary, the Supreme Court has held that voters have standing to press such claims, like those of partisan vote dilution. See Rucho v. Common Cause, 588 U.S. 684, 693, 703 (2019) (explaining the Court “addressed” standing “in Gill”). True, in Rucho, the Court concluded that partisan gerrymandering USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 33 of 112

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courts must weigh the character and magnitude of the asserted First and Fourteenth Amendment interests against the states’ justi- fication for the burden imposed by the election regulation). As for standing, we’ve been clear that “a small injury, ‘an identifiable trifle,’ is sufficient.” Billups, 554 F.3d at 1351 (citation omitted). And a party-registration requirement certainly presents the constitutional trifle sufficient to confer standing.14 See Nader,

claims are non-justiciable. But it did so only because no clear and manageable standards guide the judiciary’s inquiry in resolving them. See id. at 703, 709– 710, 721. Here, though, “discernible and manageable standards,” id. at 708, exist for assessing the exclusionary impact of an election regime, see, e.g., Nader, 417 F. Supp. at 843–45; Clingman, 544 U.S. at 589–92. In fact, Justice O’Connor, who consistently thought partisan-gerrymandering claims non-jus- ticiable, see Rucho, 588 U.S. at 703 (quoting Davis v. Bandemer, 478 U.S. 109, 144 (1986) (O’Connor, J., concurring in the judgment)); Vieth v. Jubelirer, 541 U.S. 267, 270, 305–06 (2004) (plurality opinion), considered the “[p]rimary vot- ing” interests that Polelle asserts “vitally important,” “entitled to some level of constitutional protection,” and justiciable, Clingman, 544 U.S. at 602 (O’Con- nor, J., concurring in part and concurring in the judgment). 14 The Partial Dissent’s rationalizations for ignoring Nader are unpersuasive.

Nader is not of “flimsy precedential value.” Part. Diss. Op. at 18. As we explain later, see infra Part III.B, Nader is canonical and a case the Supreme Court fre- quently cites in this area of the law. See, e.g., Tashjian, 479 U.S. at 215 n.6; Jones, 530 U.S. at 583. Indeed, the Supreme Court has referred to Nader’s holdings as its own. Clingman, 544 U.S. at 593–94. Plus, the Partial Dissent’s suggestion that Nader would have concluded the plaintiffs lacked standing had the case been decided today, Part. Diss. Op. at 19, is entirely speculative. Seminal standing cases—which echoed the same separation-of-powers concerns Nader did, the Partial Dissent now does, and we also share—preceded the panel’s decision and the Court’s summary affirmance in Nader. See, e.g., Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 220–21 (1974); Warth, 422 U.S. USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 34 of 112

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417 F. Supp. at 843–44, 847, 848–49 (discussing the minimal burden on plaintiffs’ asserted constitutional interest and the state’s valid reason for imposing them); Tashjian, 479 U.S. at 216 n.7 (recogniz- ing that a “requirement of public affiliation with [a] Party in order to vote in [a] primary” may pose a burden on voters and parties); Clingman, 544 U.S. at 589–92 (discussing the semi-closed primary’s burden on voters and comparing it to Tashjian’s articulation of how “Connecticut’s closed primary limited citizens’ freedom of politi- cal association”). But even putting aside Polelle’s effective-opportunity theory, the Partial Dissent offers no response to the other injuries Polelle asserts. It ignores that the First Amendment places some re- strictions on excluding voters from primary elections based on their political beliefs. See Duke, 87 F.3d at 1232 & n.6. And the Par- tial Dissent doesn’t acknowledge that, under the Equal Protection Clause, Florida’s closed primary injures Polelle solely by imposing a “barrier,” Billups, 554 F.3d at 1351, to voting in partisan-election primaries that is more burdensome to Polelle, a political non-

at 498–99. And Nader’s discussion of the plaintiffs’ alleged constitutional inter- ests, see 417 F. Supp. at 843–44, 847, 848–49, answers the key question at this stage in our standing inquiry: that legally cognizable interests are at stake, even if they are burdened only minimally. Cf. Ziskis v. Symington, 47 F.3d 1004, 1006 (9th Cir. 1995) (rejecting a challenge to Arizona’s closed primary and relying on Nader’s characterizing of the relevant constitutional burdens and state in- terests); Balsam v. Sec’y of N.J., 607 F. App’x 177, 182 (3d Cir. 2015) (explaining Nader “struck a balance of competing First Amendment associational rights and Fourteenth Amendment rights”). To this final point, the Partial Dissent offers no response. USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 35 of 112

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affiliate who does not want to register with a party and has not done so, than it is to other voters who want to register with a party and already have, see id. (holding a voter-identification law injured voters who did not already have valid identification by requiring them to obtain one or to present one at the ballot box). Indeed, at a minimum, Polelle alleges Defendants will deny him a ballot in state-operated primary elections—the “textbook,” Hero, 42 F.4th at 772, limitation on his “ability to vote,” Jacobson, 974 F.3d at 1246; Stachura, 477 U.S. at 312 n.14; Morse, 517 U.S. at 207 (Stevens, J.), that courts have long recognized at common law as a potential tort, see Voting Wrongs, supra, at 1182; Nixon, 273 U.S. at 540. The Partial Dissent only touches on this final point, and it conclusorily remarks that “the right to vote means the right to par- ticipate on equal footing in the general election,” not “the primary process of a political party he refuses to join.” Part. Diss. Op. at 11; see also id. at 17 (arguing Jacobson concerned a general election, not a primary election). We’ll set aside for the moment the incorrect statement that the right to vote concerns only the right to partici- pate in a general election. See Nixon, 273 U.S. at 540; Gray v. Sanders, 372 U.S. 368, 375 (1963). And we’ll also ignore for the moment that voters’ inability to participate in a primary almost by definition hin- ders their ability to participate equally in a general election. See Morse, 517 U.S. at 205 (opinion of Stevens, J.); Gray, 372 U.S. at 380. But even then, for the reasons we’ve already explained, we remain unconvinced that a voter’s political non-affiliation is enough of a reason to conclude they lack standing to challenge an allegedly ex- clusionary electoral scheme. Principally, Nader, Osburn, and USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 36 of 112

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Clingman addressed on the merits similar, if not identical claims, to those Polelle brings. And the Partial Dissent does not sufficiently explain why we should part ways with Supreme Court precedent or our past decisions. The closest the Partial Dissent gets to offering such an expla- nation is its assertion that primary and general elections serve dif- ferent purposes: the Partial Dissent claims general elections select officeholders, while primary elections choose parties’ nominees. Part. Diss. Op. at 17. But that misstates, or at least incompletely states, the purpose of a primary. Primaries serve to “winnow the number of candidates to a final list . . . for the general election.” Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 454 (2008) (citation omitted). And primaries don’t need to be partisan to do so. See id. To be sure, states may wish to hold public party primaries to ensure that parties select their nominees in a demo- cratic manner and to enable party members “to set their faces against ‘party bosses.’” Lopez Torres, 552 U.S. at 205. That is an- other interest a state may have in using partisan, rather than non- partisan, primaries. See Nader, 417 F. Supp. at 843 (discussing the smoke-filled rooms that plagued party politics). But such an interest doesn’t negate a voter’s injury when they are excluded from participating in the primary process. Nor does it eliminate the practical impact that primaries have on the general election. Voters have an interest in participating in the po- litical process to help determine who may appear on the general election ballot. See Gray, 372 U.S. at 380 (explaining constitutional USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 37 of 112

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guarantees extend to “any preliminary election that in fact deter- mines the true weight a vote will have”). Still, “[t]he fact that a State’s regulatory authority may ultimately trump voters’ . . . in- terests in a particular context is no reason to dismiss the validity of those interests” in the first place. Clingman, 544 U.S. at 602 (O’Con- nor, J., concurring in part and concurring in the judgment). Yet the Partial Dissent again misses this distinction between standing and the merits. It interprets our conclusion that Polelle has asserted an injury in fact as an alleged holding that “any re- striction affecting a voter’s interest in his ability to vote is constitu- tionally suspect.” Part. Diss. Op. at 17 (cleaned up). Most respect- fully, that’s just wrong. We’ve stressed repeatedly that “standing in no way depends on the merits of the plaintiff’s” claims. Warth, 422 U.S. at 500. And our ultimate merits determination—which soundly rejects Polelle’s claims—belies the Partial Dissent’s insist- ence that we’re crafting a broad rule that makes “constitutionally suspect” routine election regulations. The Partial Dissent’s instinct that Florida “must play an active role in structuring elections” is a correct one. Burdick, 504 U.S. at 433. But it’s not an instinct that standing doctrine vindicates. See id. at 433–34 (explaining the states’ constitutional role in structuring elections leads to a “more flexible standard” to apply to the merits). In the end, Polelle has alleged the imminent deprivation of particular, concrete, and arguably protected interests. At this stage, that’s all he must do. It’s not “necessary to decide whether [Polelle’s] allegations of impairment of [his] vote[] . . . will, USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 38 of 112

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ultimately, entitle [him] to any relief, in order to hold that [he] ha[s] standing to seek it.” Baker, 369 U.S. at 208. “If such impairment does produce a legally cognizable injury,” we know that Polelle will “sustain[] it.” Id. Because we conclude Polelle has sufficiently alleged an in- jury in fact, we next assess Secretary Byrd’s argument that Polelle’s injury is not traceable to him. 2. Polelle’s exclusion from Florida primary elections is traceable to Supervisor Turner and redressable by an in- junction against him. To satisfy standing’s causation requirement, a plaintiff’s in- jury must be “fairly traceable to the challenged action of the de- fendant, and not the result of the independent action of some third party not before the court.” Lujan, 504 U.S. at 560 (cleaned up). As for standing’s redressability requirement, to satisfy that, a plaintiff must show that “the effect of the court’s judgment on the defend- ant” will likely redress “the plaintiff’s injury, whether directly or in- directly.” Lewis v. Governor of Ala., 944 F.3d 1287, 1301 (11th Cir. 2019) (en banc) (cleaned up). These “two requirements—traceabil- ity and redressability—often travel together.” Support Working An- imals, Inc. v. Governor of Fla., 8 F.4th 1198, 1201 (11th Cir. 2021) (cit- ing 13A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 3531.5 (3d ed. 2021)). And “where, as here, a plaintiff has sued to enjoin a government official from en- forcing a law, he must show, at the very least, that the official has the authority to enforce the particular provision that he has USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 39 of 112

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challenged, such that an injunction prohibiting enforcement would be effectual.” Id. Polelle alleges that he has been improperly excluded from the only stage of the election process for certain offices where his vote is of significance: Florida’s partisan primary elections. So to have standing to sue, Polelle must show that his exclusion is fairly traceable to statutes that either the Secretary or the Supervisor en- forces and that a judgment against either Defendant will likely re- dress Polelle’s exclusion. Polelle does so as to Supervisor Turner. But as to Secretary Byrd, Polelle fails to carry his burden of identi- fying cognizable traceability and redressability theories. Still, be- cause Polelle has standing to sue “at least one defendant,” we pro- ceed to the merits of his claims later in this opinion. Bostic v. Schaefer, 760 F.3d 352, 372 (4th Cir. 2014). i. Polelle’s injuries are traceable to Supervisor Turner and redressable by an injunction against him. Supervisor Turner does not dispute that Polelle’s exclusion is traceable to him. Nor does he contest that an injunction or de- claratory judgment against him would afford Polelle relief. That is unsurprising. Supervisors and the Election Board of poll workers they appoint conduct Florida’s elections. Fla. Stat. § 102.012. The Board possesses “full authority to maintain order at the polls and enforce obedience to its lawful commands during an election and the canvass of the votes.” Id. § 102.031(1). That in- cludes verifying the identify of putative voters, id. §§ 98.461(2), 101.043, 102.012(1)(a), allowing voters to “enter the booth or USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 40 of 112

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compartment to cast his or her vote,” id. § 101.51(1), and accepting voters’ requests for and sending out vote-by-mail ballots, id. §§ 101.62(1), 101.62(3). So if we granted relief that enabled Polelle to participate in partisan primary elections, the district court could enter an injunction requiring the Supervisor to issue and accept Polelle’s partisan ballot. Still, as Polelle recognizes, we may not be able to order the Supervisor to include Polelle in a partisan primary election if doing so would severely burden political parties’ associational rights. Cf. Osburn, 369 F.3d at 1287. Again, at this stage, we don’t consider whether such an order would impermissibly infringe political par- ties’ First Amendment rights. Jones expressly reserved that question when it declined to rule on open primaries’ constitutionality. 530 U.S. at 577 n.8. And we don’t need to resolve that issue here be- cause even if we were to conclude that such relief would violate political parties’ associational rights, Polelle would still have stand- ing to sue. 15

15 The Partial Dissent has a big hole in it. As we’ve explained, Polelle’s claims

are redressable in two ways: (1) we could order Supervisor Turner to issue Polelle a ballot, or (2) we could order Supervisor Turner to conduct an alter- native primary scheme. The Partial Dissent disputes this second form of re- dressability (we explain above why we, respectfully, think it’s wrong), but the Partial Dissent doesn’t say we can’t engage in the first form. To do that, the Partial Dissent would have to conclude that the first form of relief would vio- late a political party’s First Amendment rights to issue such a ballot. But the Partial Dissent doesn’t do that. For good reason. As we explained in the last Section, it doesn’t necessarily follow from Supreme Court precedent that open USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 41 of 112

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As we’ve explained, Polelle would vote in a party primary if he had the opportunity. But he requested more expansive relief to litigate in the alternative: If Florida’s system of closed primary elec- tions unconstitutionally excludes Polelle from the only stage in the election process where his vote matters, and if political parties are also entitled to exclude Polelle from their own primaries such that we cannot order Supervisor Turner to issue Polelle a partisan bal- lot—questions we do not decide in the standing inquiry—then Florida could conduct neither closed nor open partisan primaries. But in that hypothetical case, the State could still switch to some alternative election regime that could accommodate both constitu- tional interests, like non-partisan primaries. Cf. Jones, 530 U.S. at 585–86. Polelle raised this alternative in the district court and on ap- peal both in his briefing and at oral argument. He argued that we could enjoin the use of closed-primary elections, forcing the

primaries are facially unconstitutional. See, e.g., Jones, 530 U.S. at 577 n.8; Wash. State Grange, 552 U.S. at 446, 449–50, 452; Nago, 833 F.3d at 1124–25. We ultimately avoid that constitutional question because established law al- lows us to conclude Polelle’s injury is redressable by ordering Supervisor Turner to conduct an alternative primary scheme. But the Partial Dissent doesn’t have that same luxury because it (incorrectly) rejects that conclusion. So it must address the extent of the burden issuing Polelle a partisan ballot would place on a political party’s First Amendment rights before determining that Polelle’s injury is not redressable in that way. But the Partial Dissent doesn’t do this. It only suggests Jones points in that direction (which, as we’ve already stated, isn’t exactly correct). In turn, we don’t see how it can, well, dissent and say that redressing Polelle’s injury falls beyond the powers of the judiciary. USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 42 of 112

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“Florida legislature . . . to adopt other primary solutions . . . that avoid the constitutional issues raised by Plaintiff in his Complaint and yet respect the constitutional rights of political parties.” So his suit is one that effectively “challenge[s] an unconstitu- tional” election regime and “seek[s] an injunction forbidding the state from conducting an election under the challenged scheme.” SAMUEL ISSACHAROFF, PAMELA S. KARLAN & RICHARD H. PILDES ET AL., THE LAW OF DEMOCRACY: LEGAL STRUCTURE OF THE POLITICAL PROCESS 982 (6th ed. 2022). Put simply, Polelle requests in the al- ternative that we “command[]” Supervisor Turner “to do nothing more than refrain from violating federal law” by not conducting partisan primaries as Florida law otherwise instructs him to do. Ja- cobson, 974 F.3d at 1257 (quoting Va. Off. for Prot. & Advoc. v. Stewart, 563 U.S. 247, 255 (2011)). A judgment of the nature Polelle seeks would redress his in- juries, or, at a minimum, it would “significantly increase the likeli- hood” that he would obtain such redress. Lewis, 944 F.3d at 1301. That’s so because such a judgment would prevent Supervisor Turner from proceeding with the elections of public officials in the absence of a system of elections that affords Polelle a meaningful vote unconditioned on his affiliation with a political party. Elec- tions in Sarasota County would continue, of course. They just wouldn’t continue under the allegedly constitutionally defective scheme. Supervisor Turner could implement other election re- gimes—such as non-partisan primaries—that would allow Polelle USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 43 of 112

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to participate in Sarasota County’s politics on equal footing with those affiliated with political parties. See Jones, 530 U.S. at 585–86, 585–86; Wash. State Grange, 552 U.S. at 444 (upholding Washing- ton’s non-partisan primary). Eliminating the party-affiliation re- quirement would redress Polelle’s asserted First Amendment and equal-protection injuries. And by ordering Supervisor Turner to not conduct elections that exclude unaffiliated voters from the dis- positive stages, Polelle would be able to cast a meaningful ballot in the decisive vote. Cf. Wash. State Grange, 552 U.S. at 446, 454. Plus, if Supervisor Turner does not “implement a primary election that complies with the constitutional mandate” of this Court, O’Calla- ghan v. Alaska Dir. of Elections, 6 P.3d 728, 730 (Alaska 2000), the dis- trict court may order Supervisor Turner directly to bring his elec- tions into compliance with federal law. That theory of traceability and redressability underwrites the type of election-related relief that we and the Supreme Court routinely grant. Polelle’s request for an injunction that bars Florida’s use of a certain primary-election structure is no different than what the political parties sought, and the Court granted, in Jones. Cal. Dem- ocratic Party v. Jones, 984 F. Supp. 1288, 1292 (E.D. Cal. 1997) (ex- plaining the political parties requested “an injunction against [the blanket primary’s] implementation”), aff’d, 169 F.3d 646 (9th Cir. 1999), rev’d, 530 U.S. 567 (2000); see also O’Callaghan, 6 P.3d at 730 (upholding Alaska’s “emergency regulations to implement a pri- mary election that complies with the constitutional mandate of USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 44 of 112

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Jones”). Just as the courts afforded relief to the plaintiffs in Jones by preventing California officials from using a primary system that vi- olated the parties’ associational rights, Polelle asks that we prevent Supervisor Turner from using a primary system that undermines his right to an effective vote by conditioning it on an act of affilia- tion with a party. And more recently, in Allen v. Milligan, the Supreme Court affirmed the three-judge court’s preliminary injunction that pre- vented Alabama from conducting any congressional elections us- ing Alabama’s proposed congressional map and that afforded the Alabama legislature two weeks to enact a remedial plan. 599 U.S. 1, 9 (2023) (affirming the district court’s order); Caster v. Merrill, 2022 WL 264819, at *3 (N.D. Ala. Jan. 24, 2022) (describing the or- der). Milligan represents a “faithful[] appli[cation]” of “existing law.” 599 U.S. at 23. Although “intervention by the federal courts in state elections has always been a serious business,” Oden v. Brit- tain, 396 U.S. 1210 (Black, J., opinion in chambers), “[i]t cannot be gainsaid that federal courts have the power to enjoin state elec- tions,” Chisom v. Roemer, 853 F.2d 1186, 1189 (5th Cir. 1988). Federal courts may enforce federal law and the Constitution by enjoining upcoming elections, ordering specific election practices, or, in par- ticularly extreme cases, setting aside ballots or election results. See, e.g., Bell v. Southwell, 376 F.2d 659, 665 (5th Cir. 1967) (“[W]e are unfettered by the negative or affirmative character of the words used or the negative or affirmative form in which the coercive order USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 45 of 112

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is cast.”); Hamer v. Campbell, 358 F.2d 215, 224 (5th Cir.), cert. denied, 385 U.S. 851 (1966); Toney v. White, 488 F.2d 310, 315 (5th Cir. 1973) (en banc); Watson v. Comm’rs Ct. of Harrison Cnty., 616 F.2d 105, 107 (5th Cir. 1980); Roe v. Alabama, 68 F.3d 404, 407, 409 (11th Cir. 1995). 16 But because “relief [of that nature] [is] to be guardedly exer- cised,” Southwell, 376 F.2d at 662, our practice is to enter such ex- traordinary relief “only when a legislature fails” to comply with the “requisites” of federal law “in a timely fashion after having had an adequate opportunity to do so,” White v. Weiser, 412 U.S. 783, 794– 95 (1973) (quoting Reynolds, 377 U.S. at 586); accord North Carolina v. Covington, 585 U.S. 969, 978–79 (2018) (per curiam) (affirming part of the district court’s order requiring the use of “court-drawn” state electoral districts). After all, if the district court could order state officers to implement a specific primary-election regime in ac- cordance with the federal law and the Constitution, see, e.g., Hamer, 358 F.2d at 224; Southwell, 376 F.2d at 665; Covington, 585 U.S. at 978, it could surely, in the spirit of federalism, provide Supervisor Turner the chance to craft a remedial plan, or offer the State the opportunity to revise offending statutes, in the first instance. See ISSACHAROFF, KARLAN & PILDES ET AL., supra, at 1003–04. The Partial Dissent disagrees. It first discounts the relief we discuss because it believes Polelle didn’t request it. The Partial

16 All decisions the Fifth Circuit issued by the close of business on September

30, 1981, are binding precedent in this Court. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc). USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 46 of 112

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Dissent characterizes Polelle’s arguments suggesting Florida could adopt alternative election regimes as a mid-litigation switch, and it treats that purported switch as an implicit concession from Polelle that he sought in his complaint relief the court cannot grant. Part. Diss. Op. at 22–23, 22 n.8. But we fail to see how a position Polelle has pressed since his response to Defendants’ motions to dismiss—the first time in the litigation that he could make a legal argument—is a mid-litigation switch. Nor do we understand Polelle’s district-court arguments to depart from the requests he made in his complaint: he sought for us to enjoin Defendants from enforcing any Florida law “which prohibits [him] from voting in future Florida election primaries based solely on his choice to remain” independent, as well as to en- ter “[a]ny other relief ” we “deem[] just and proper.” The potential remedies we discuss flow from Polelle’s claim that Florida’s closed system of primary elections is unconstitu- tional. It doesn’t matter that Polelle didn’t plead with particularity a request that Florida enact a certain primary regime, like non-par- tisan primaries. For one thing, because a final judgment “should grant the relief to which each party is entitled, even if the party has not demanded that relief in its pleadings,” FED. R. CIV. P. 54(c), we see no issue considering such an injunction in our redressability analysis.17 For another, the Partial Dissent would fault Polelle, a pro

17 The Partial Dissent takes issue with how we characterize the injunctions

Polelle requests and that we conclude we could enter. It asks, “[h]ow is an USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 47 of 112

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se litigant, for requesting relief that implicitly recognizes the feder- alism principles to which we routinely adhere—namely, affording states the opportunity to correct parts of their electoral scheme that violate federal law before directly ordering state officials to im- plement corrections. 18 See Weiser, 412 U.S. at 794–95; Covington, 585

injunction barring Supervisor Turner from conducting partisan primaries the same as an injunction ordering him to create and run a new primary system?” Part. Diss. Op. at 26 n.12. Although the Partial Dissent highlights a literal dis- tinction between two possible injunctions, there is no functional difference that is relevant to redressability in the election-law context. Our precedent is clear that we should be “unfettered by the negative or affirmative character of the words used or the negative or affirmative form in which the coercive order is cast.” Southwell, 376 F.2d at 665. “If affirmative relief is essential, the Court has the power and should employ it.” Id. Plus, in attempting to paint Polelle as disclaiming the entry of any affirmative injunction, the Partial Dissent mis- reads Polelle’s arguments below. See Part. Diss. Op. at 26. It conflates blanket primaries (which the Court held unconstitutional in Jones and which Polelle does not suggest Florida adopt) with any other form of primary elections, like non-partisan ones (which avoid any alleged constitutional injuries to Polelle and to political parties and which Polelle has suggested are a legally viable al- ternative to closed primaries). The Partial Dissent can’t fairly read into one sentence in Polelle’s response to Defendants’ motion to dismiss a disclaimer of the just and proper relief he plainly sought in his complaint. 18 The Partial Dissent seizes on Polelle’s suggestion that Florida’s legislature

may alter its primary election scheme if we conclude its closed primary is un- constitutional. Part. Diss. Op. at 24–25. But it jumps the gun in claiming Polelle’s theory of redressability relies solely on the independent action of Florida’s legislature. For the reasons we explain above, Polelle does not need to rely on the Florida legislature to redress his claims. So his anticipation that the Florida legislature will respond to a judicial ruling is not determinative of redressability. Polelle merely recognizes how election remedies normally USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 48 of 112

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U.S. at 978–79. We make no “judicial overreach,” Part. Diss. Op. at 28, in concluding we may order the appropriate state officials to conduct elections in compliance with federal law should a plaintiff prove such a violation. Yet the Partial Dissent rejects that proposition, too. As the Partial Dissent sees it, requiring Supervisor Turner to implement an alternative primary-election regime, like non-partisan elections, that complies with the Constitution, would amount to “invent[ing] an election regime from scratch.” Id. at 27. We respectfully disa- gree. For starters, we would enter such an injunction only if Su- pervisor Turner failed to comply with an initial order that he cease using the closed-primary election regime that allegedly violates Polelle’s rights. See Weiser, 412 U.S. at 794–95; Covington, 585 U.S. at 978–79. More to the point, though, “the aim of equity is to adapt judicial power to the needs of the situation.” Alabama v. United States, 304 F.2d 583, 591 (5th Cir.), aff’d mem., 371 U.S. 37 (1962). So “federal courts may use any available remedy to make good the wrong done,” Hood, 327 U.S. at 684, including the entry of “such orders and decrees as are necessary and proper” to afford plaintiffs “full protection from” unconstitutional “election practices,” Terry, 345 U.S. at 470 (opinion of Black, J.) (discussing the “Jaybird-Dem- ocratic-general election practices”).

proceed: courts grant legislatures and state officials the first opportunity to “remove the invalidity or unenforceability” in state law. Fla. Stat. § 97.029(3). USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 49 of 112

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Still, we share the Partial Dissent’s concern that “‘[t]he func- tional structure embodied in the Constitution, the nature of the federal court system[,] and the limitations inherent in the concepts both of limited federal jurisdiction and of the remedy afforded by § 1983’ operate to restrict federal relief in the state election con- text.” Curry v. Baker, 802 F.2d 1302, 1314 (11th Cir. 1986) (quoting Gamza v. Aguirre, 619 F.2d 449, 453 (5th Cir. 1980)). Numerous doc- trines exist to advance the federalism principles underlying our sys- tem of multiple sovereigns and the role the Constitution intends states to play in organizing elections. See, e.g., id. at 1314–15 (ex- plaining “episodic,” “garden variety” election disputes, like those over “the validity of individual ballots,” normally do not give rise to constitutional claims); Weiser, 412 U.S. at 794–95 (allowing States to first craft remedial plans); Republican Nat’l Comm. v. Democratic Nat’l Comm., 589 U.S. 423, 424 (2020) (per curiam) (explaining “fed- eral courts should ordinarily not alter the election rules on the eve of an election” (citing Purcell v. Gonzalez, 549 U.S. 1 (2006) (per cu- riam))). But this is a case where a plaintiff alleges that state laws’ “very design infringes on the rights of voters.” Curry, 802 F.2d at 1314. So “federal courts closely scrutinize” the challenged regula- tions. Id. And “state policy must give way when it operates to hin- der vindication of federal constitutional guarantees.” See Missouri v. Jenkins, 495 U.S. 33, 57 (1990) (quoting N.C. Bd. of Educ. v. Swann, 402 U.S. 43, 45 (1971)). Against these principles, we do not share the Partial Dissent’s view that the federal courts cannot redress Polelle’s injury. If federal courts can halt state elections, Reynolds, USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 50 of 112

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377 U.S. at 585, redraw state and congressional electoral maps, id. at 586, require that states use single-member legislative districts, White, 412 U.S. at 765, alter candidate filing deadlines, Anderson, 460 U.S. at 806, void election results and call a special election under their supervision, Southwell, 376 F.2d at 665, or, more broadly, “dis- establish local government institutions that interfere with [the Fourteenth Amendment’s] commands,” Jenkins, 495 U.S. at 55 (cit- ing City of New York v. Morris, 489 U.S. 688, 690 (1989)), we think it is within the judicial power to enjoin the use of a primary-election practice and its “conforming amendments to [a] [s]tate[’s] [e]lec- tion [c]ode,” Jones, 984 F. Supp. at 1290. Importantly, Supervisor Turner is the principal election of- ficer in Sarasota County, and he does not dispute that he would be the proper official to implement the relief Polelle has requested for county-wide elections.19 Cf. Osburn, 369 F.3d at 1288–89 (raising no

19 The Partial Dissent offers a final point that Florida law does not empower

Supervisor Turner to reshape the state’s primary system. Part. Diss. Op. at 27. But that does not impact redressability. “[S]tate-imposed limitations” on state officials’ authority “must give way when [they] operate[] to hinder vindication of federal constitutional guarantees.” Swann, 402 U.S. at 45. So when “a par- ticular remedy is required, the State cannot hinder the process by preventing a local government from implementing that remedy.” Jenkins, 495 U.S. at 57– 58. In fact, Florida law already acknowledges this principle. It recognizes that courts may enter “an order or judgment that nullifies or suspends, or orders or justifies official action that is in conflict with, a provision of the Florida Elec- tion Code.” Fla. Stat. § 97.029(3) (noting “the Legislature” may “amend[] the general law to remove the invalidity or unenforceability”). And there is no dispute that Supervisor Turner is the proper official to take action that rectifies USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 51 of 112

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redressability issue related to voters’ request to enjoin Georgia’s open primary); Socialist Workers Party v. Leahy, 145 F.3d 1240, 1248 (11th Cir. 1998) (holding the plaintiffs lacked standing to sue the Supervisors in part because the Supervisors disclaimed the author- ity or desire to enforce the challenged provision). For these reasons, we conclude a judgment against Supervi- sor Turner is likely to redress Polelle’s core complaint—that he is excluded from the dispositive elections in Sarasota County—as well as his other asserted First Amendment and equal-protection violations. If we conclude that Polelle is entitled to only a narrow in- junction that requires Supervisor Turner to issue a partisan ballot to and accept one from Polelle, Polelle would be able to cast an effective vote on the same playing field as other voters. And should we conclude Polelle is entitled to an injunction to prevent the use of a closed primary, Supervisor Turner can then implement a pri- mary system that includes Polelle in the important stages of the election cycle without imposing on his political beliefs.

the alleged unconstitutionality of Florida closed primary-election laws; he al- ready operates county-wide primary elections. See, e.g., Fla. Stat. § 105.031(1) (explaining “nonpartisan candidates for countywide or less than countywide office shall qualify with the supervisor of election”); id. § 102.012 (directing the Supervisor to “conduct elections”); id. § 102.071 (requiring the election board to tabulate and post voting results); id. § 100.051 (charging Supervisors to print on general-election ballots the names of those who won the relevant prima- ries). USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 52 of 112

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ii. Polelle has failed to show that his injuries are traceable to Secretary Byrd. Although Polelle has standing to sue Supervisor Turner, he has failed to show that he has standing to sue Secretary Byrd. Polelle proffers three traceability and redressability theories, but we can sustain none in this posture. Polelle first argues that his injuries are traceable to Secretary Byrd because the Secretary is the chief elections officer who pro- vides direction to Supervisors of Elections and may maintain suits against Supervisors to enforce their compliance with Florida law. But we squarely rejected that theory in Jacobson. We said, “Super- visors are independent officials under Florida law who are not sub- ject to the Secretary’s control.” Jacobson, 974 F.3d at 1253. And “[t]hat the Secretary must resort to judicial process if the Supervi- sors fail to perform their duties underscores her lack of authority over them.” Id. “Because the Supervisors are independent officials not subject to the Secretary’s control, their actions to implement” Florida’s partisan primaries “may not be imputed to the Secretary for purposes of establishing traceability.” Id. at 1253–54. Polelle’s next two arguments may show hints of merit, but he does not develop them enough. His second argument attempts to distinguish Jacobson. Polelle asserts that, unlike the situation in Jacobson, he sued both the Florida Secretary of State and his Super- visor of Elections. Polelle is right that we explained the plaintiffs’ core error in Jacobson was their failure to sue the Supervisors. 974 F.3d at 1258. But Polelle goes no further than that distinguishing USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 53 of 112

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fact. He does not explain why the Secretary is the “cause of any alleged injuries,” how “relief against” the Secretary can “redress those injuries,” id., or why the Secretary is a party against whom a judgment is necessary to provide him complete relief, see FED. R. CIV. P. 19(a)(1)(A). Without more and against our precedent in Ja- cobson, Polelle hasn’t carried his burden of persuasion, let alone his burden of “alleging facts that ‘plausibly’ demonstrate” the tracea- bility and redressability “elements.” Tsao v. Captiva MVP Rest. Part- ners, LLC, 986 F.3d 1332, 1337 (11th Cir. 2021) (quoting Trichell v. Midland Credit Mgmt., 964 F.3d 990, 996 (11th Cir. 2020)). As for Polelle’s last argument, it suffers from a similar flaw. Polelle observes that Florida recently established an Office of Elec- tion Crimes and Security under the Secretary’s purview. He also asserts that Florida law charges the Secretary with the responsibil- ity to “[c]onduct preliminary investigations into any irregularities or fraud involving . . . voting” and to “report his or her findings to the statewide prosecutor or the state attorney for the judicial circuit . . . for prosecution.” Fla. Stat. § 97.012(15). Given these circum- stances and because Florida law makes it “unlawful” to vote in the primary election of a party to which that voter does not belong, id. § 101.021, Polelle effectively contends that the Secretary will report Polelle for prosecution if Polelle votes in a closed primary election. Again, this argument also shows glimmers of potential. See Dream Defs. v. Governor of Fla., 57 F.4th 879, 887 (11th Cir. 2023) (ex- plaining plaintiffs suffer an injury when there is credible threat of USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 54 of 112

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prosecution under a statute that arguably affects a constitutional interest). But Polelle makes it far too late. He did not raise this argument in the district court, makes just a passing reference to it in his opening brief, and only begins to develop it in his reply brief. As Secretary Byrd points out, that short, initial mention of the Secretary’s investigatory authority was not enough for him to frame a proper response to Polelle’s argu- ment. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014) (“We have long held that an appellant abandons a claim when he either makes only passing references to it or raises it in a perfunctory manner without supporting arguments and au- thority.”). And in any event, “legal theories and arguments not raised squarely before the district court cannot be broached for the first time on appeal,” even on the issue of standing. Kawa Ortho- dontics, LLP v. Sec’y, U.S. Dep’t of the Treas., 773 F.3d 243, 246 (11th Cir. 2014) (quoting Bryant v. Jones, 575 F.3d 1281, 1308 (11th Cir. 2009)). As a result, we can’t consider it. In short, Polelle has failed to meet his burden to show that he has standing to sue Secretary Byrd. We address Secretary Byrd’s arguments that Polelle lacks standing to sue him, even though Polelle has standing to sue Supervisor Turner, because whether Polelle has standing to sue Secretary Byrd affects the disposition of Polelle’s suit. “Typically, where standing is lacking, a court must dismiss the plaintiff’s claim without prejudice.” McGee v. Solic. Gen. of Rich- mond Cnty., 727 F.3d 1322, 1326 (11th Cir. 2013). In contrast, USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 55 of 112

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dismissing a case on the merits may warrant a dismissal of claims with prejudice. See Wilding v. DNC Servs. Corp., 941 F.3d 1116, 1133 (11th Cir. 2019). So on remand, the district court should dismiss Polelle’s claims against Secretary Byrd without prejudice. See id. (remanding with instructions to dismiss with prejudice the claims adjudicated on the merits but dismiss without prejudice claims that failed for lack of standing). * * * To recap our discussion so far, Polelle has standing to sue Supervisor Turner but not Secretary Byrd. Polelle has alleged par- ticular, imminent, and concrete injuries. Supervisor Turner alleg- edly deprives him of a vote in certain primary elections, and the common law would afford Polelle relief if that deprivation were improper. Not only that, but Polelle has also identified colorable constitutional interests that Florida’s closed primary elections bur- den—his right to a meaningful vote, his right to be free from dis- crimination based on political beliefs, and his right to the equal pro- tection of the laws. Plus, Supervisor Turner enforces the statutes that inflict those injuries, which means a federal-court injunction could remedy them. So Polelle has adequately alleged an injury in fact, traceable to Supervisor Turner and redressable by the federal courts. In brief, he has standing to sue at least one defendant. And on to the merits we go. USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 56 of 112

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B. Polelle fails to state a claim for relief because Florida’s interest in holding closed primary elections outweighs the minimal burdens on Polelle’s First and Fourteenth Amendment rights. Polelle’s complaint sets forth three claims for relief: (1) a vi- olation of his First Amendment freedoms from compelled speech or association; (2) a violation of his fundamental right to vote; and (3) a violation of his equal-protection rights. We employ the framework that the Supreme Court refined in Anderson v. Cele- brezze, 460 U.S. 780 (1983), and Burdick v. Takushi, 504 U.S. 428 (1992) (commonly referred to as the “Anderson-Burdick” frame- work), to assess the merits of these claims.20 See Crawford v. Marion

20 When, as here, voting-rights complainants allege violations of the Equal

Protection Clause, we distinguish between allegations that “the state has un- constitutionally burdened the right to vote” and assertions that “discrimina- tory animus motivated the legislature to enact a voting law.” Democratic Exec. Comm. of Fla. v. Lee, 915 F.3d 1312, 1319 n.9 (11th Cir. 2019). Claims that the state has unconstitutionally burdened the right to vote fall under the Anderson- Burdick framework, but assertions that discriminatory animus motivated the legislature to enact a voting law state “a traditional Equal Protection Clause claim.” Id. Here, Polelle’s third claim could, at least initially, be characterized as either. He claims Florida “invidiously discriminated against” voters who have not affiliated with a political party. But he also asserts that such alleged discrimination prevents “Not Politically Affiliated” voters “from having the same opportunity to affect the outcome of a general election” as affiliated vot- ers do. Still, Polelle does not allege any facts showing that Florida acted with discriminatory animus. Instead, he argues Florida’s system of primary elec- tions does not treat purportedly “similarly situated” voters alike. So we eval- uate his third claim under the Anderson-Burdick framework. See id. at 1319 (“[W]hen a state regulation is found to treat voters differently in a way that burdens the fundamental right to vote, the Anderson-Burdick standard applies.” USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 57 of 112

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Cnty. Election Bd., 553 U.S. 181, 189–90 (2008) (plurality opinion) (ex- plaining the development of the Anderson-Burdick test). Anderson-Burdick “requires us to weigh the character and magnitude of the asserted First and Fourteenth Amendment injury against the state’s proffered justifications” for the burdens the state imposes, “taking into consideration the extent to which those jus- tifications require the burden to plaintiffs’ rights.” Lee, 915 F.3d at 1318. We strictly scrutinize laws that severely burden a plaintiff’s speech, association, or voting rights. Id. That means we require the government action to “be narrowly drawn to serve a compel- ling state interest.” Id. At the other end of the scrutiny scale— when the state “imposes only a slight burden” on a plaintiff’s rights—“relevant and legitimate interests of sufficient weight . . . must justify that burden.” Id. at 1318–19 (citing Billups, 554 F.3d at 1352). Ultimately, our analysis follows a sliding scale, as opposed to strict tiers; the “more a challenged law burdens the right to vote, the stricter the scrutiny to which we subject that law.” Id. at 1319 (citing Stein v. Ala. Sec’y of State, 774 F.3d 689, 694 (11th Cir. 2014)). To conduct the Anderson-Burdick analysis here, we would or- dinarily assess the burden that state action imposes on the plaintiff’s asserted constitutional interests, consider the state’s asserted justi- fications for the burden, and then weigh the burden on the plain- tiff’s rights against the state’s asserted justifications. See, e.g., id. at

(quoting Obama for Am. v. Husted, 697 F.3d 423, 429-30 (6th Cir. 2012)); Burdick, 504 U.S. at 434 (assessing whether the challenged law is “nondiscriminatory”); Hero, 42 F.4th at 776 (same). USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 58 of 112

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1319–26; Curling v. Raffensperger, 50 F.4th 1114, 1121 (11th Cir. 2022). But as we highlighted earlier, binding Supreme Court precedent has already addressed the very claims Polelle now asserts. In Nader v. Schaffer, a group of independent voters chal- lenged Connecticut’s closed primary elections. 417 F. Supp. 837 (D. Conn. 1976). They argued “that participation in a primary elec- tion is an exercise of the constitutionally protected right to vote and of the constitutionally protected right to associate with others in support of a candidate”; that as to the right to associate, “there is a constitutionally protected correlative right not to associate, and to be free from coerced associations”; and that Connecticut’s closed primary “limits them to” the exercise of “one or the other.” Id. at 842. A three-judge panel rejected those independent voters’ claims. And the Supreme Court summarily affirmed. Nader v. Schaffer, 429 U.S. 989 (1976) (mem.). Polelle argues that Nader is weak precedent because it is a summary affirmance. And to be sure, “the precedential effect of a summary affirmance extends no further than the precise issues pre- sented and necessarily decided by those actions.” Anderson, 460 U.S. at 784 n.5. But Polelle brings the exact same claims as the plaintiffs in Nader did. So the precedential value of the Supreme Court’s summary affirmance in Nader extends pretty far here. In fact, be- cause Nader addresses the “precise issues presented” in this case, it controls. And in any event, Polelle understates Nader’s canonical sta- tus; it’s precedent on which the Supreme Court has repeatedly USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 59 of 112

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relied. See, e.g., Tashjian, 479 U.S. at 215 n.6 (citing Nader for the proposition that “the nonmember’s desire to participate in the party’s affairs is overborne by the countervailing and legitimate right of the party to determine its own membership qualifica- tions”); Jones, 530 U.S. at 583 (same). In Clingman, for instance, the Court even referred to Nader as a decision of “this Court.” 544 U.S. at 593–94. So we have no trouble concluding that Nader binds us and that we must follow its reasoning to the extent it applies to the facts of Polelle’s case. See United States v. Thomas, 242 F.3d 1028, 1035 (11th Cir. 2001) (“[W]e are bound to follow [Nader] unless and until the Supreme Court itself overrules that decision.”); cf. Schwab v. Crosby, 451 F.3d 1308, 1325 (11th Cir. 2006) (explaining courts should follow “Supreme Court dicta” that is “well thought out, thoroughly reasoned, and carefully articulated analysis . . . describ- ing the scope of one of its own decisions”). For that reason, our analysis picks up where Nader left off. We first recount Nader’s evaluation of the Nader plaintiffs’ claims and then assess whether Polelle has identified any “changed cir- cumstances,” such as new law or facts, that “require a different re- sult [from Nader] under the Anderson-Burdick test.” Indep. Party of Fla. v. Sec’y, State of Fla., 967 F.3d 1277, 1282 (11th Cir. 2020); see Cowen v. Ga. Sec’y of State, 960 F.3d 1339, 1343 n.1 (11th Cir. 2020) (“[T]he Anderson analysis must be undertaken even if the very same requirement had been previously upheld as constitutional, if there are at least some non-frivolous arguments that, since the decision upholding the requirement, circumstances have changed the con- text of the analysis.”). Although some relevant differences exist USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 60 of 112

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between Nader and Polelle’s case, we conclude that those differ- ences aren’t significant enough to alter the balance that the Nader panel struck and that the Supreme Court adopted. 1. Nader rejected voters’ claims that a system of closed pri- mary elections unconstitutionally burdened their First and Fourteenth Amendment interests. We start by noting that the Nader panel rendered its decision before the Supreme Court refined the Anderson-Burdick framework that now hones our constitutional analysis. Even so, the opinion conducted effectively the same balancing inquiry. So we recount Nader’s opinion through that lens. First, we discuss Nader’s assess- ment of the burdens Connecticut’s closed primary imposed on the voter plaintiffs’ First and Fourteenth Amendment rights, noting that the Court concluded that those burdens were minimal. Sec- ond, we discuss the state interests that Connecticut asserted and that the panel credited. And third, we revisit Nader’s conclusion that the State’s asserted interests were sufficiently weighty to justify the minimal burdens the state imposed on the plaintiffs’ constitu- tional interest. To begin, we discuss the burdens Nader considered. The Nader panel first concluded that Connecticut’s closed primary elec- tions minimally burdened the plaintiff voters’ First and Fourteenth Amendment rights to cast a meaningful vote. It explained that the plaintiffs’ failure to “enroll in the Democratic or Republican Par- ties” did “not prevent them from” supporting their preferred can- didate through other avenues of expression, such as volunteering, USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 61 of 112

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“contributing money,” signing petitions, or participating with po- litical parties as those parties’ own rules allowed. Nader, 417 F. Supp. at 842. As the three-judge court noted, “Connecticut’s voting laws clearly provide avenues for supporting candidates of one’s per- suasion without affiliating with an established ‘major’ political party.” Id.; see Hero, 42 F.4th at 776 (“Indiana law provides alterna- tive means to access the general-election ballot.”). Plus, the Nader court observed, Connecticut was not a “one- party” state such that any “party’s primary election” was “com- pletely determinative of the outcome.” 417 F. Supp. at 843 (com- paring its facts to those of United States v. Classic, 313 U.S. 299 (1941)). That fact was especially true for “local elections,” where “both minor party and independent candidates” could “reasonably anticipate a measure of success.” Id. So even if the plaintiffs chose “not to associate, by not enrolling in a party, their right to vote in the general election [was] unaffected.” Id. at 847. And relatedly, the Nader court explained that the burden on the plaintiffs’ right to an effective vote was minimal because the closed-primary statute only slightly infringed the plaintiffs’ First Amendment rights not to associate with political groups and be- liefs. “[E]nrollment in Connecticut impose[d] absolutely no affirm- ative party obligations on the voter, in terms of time or money, and it d[id] not even obligate [the plaintiffs] to vote for the party’s posi- tions or candidates or to vote at all.” Id. at 843. Not only that, but a “voter’s name could be erased from the party’s enrollment list on a proper showing that he does not support the party’s principles or USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 62 of 112

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candidates.” Id. at 843–44 (noting that, “in actual practice,” those “statutes” were “not used”). So the panel concluded that “[s]uch limited public affiliation is simply not comparable to the coerced orthodoxy imposed by government officials in the cases cited by plaintiffs.” Id. at 844. In one of those cases—West Virginia State Board of Education v. Barnette—for instance, the Supreme Court held unconstitutional a school’s requirement that students each day salute the American flag and recite the pledge of allegiance. 319 U.S. at 642; see also Russo v. Cent. Sch. Dist. No. 1, 469 F.2d 623, 625 (2d Cir. 1972) (teacher’s refusal to salute the flag and recite the pledge). The Court was concerned that the state essentially “force[d] citizens to confess by word or act their faith” in a political “orthodox[y].” Bar- nette, 319 U.S. at 642. By contrast, in Nader, registering for a politi- cal party was primarily a ministerial act that did not require any confession of faith or affirmative support of the political party or its beliefs. 417 F. Supp. at 844. And even if “some affiliation” was “coerced,” the voter “at least” could “choose his party, whereas in the cases just listed there was no such choice.” Id. So the panel concluded that the burdens on the plaintiffs’ right not to associate with political groups and to cast an effective ballot were not substantial. 21 Connecticut required only “a

21 Nader also rejected the plaintiffs’ argument that “the public nature of enroll-

ment violates their right to privacy of association by potentially subjecting them to harassment because of their affiliations with a party.” 417 F. Supp. at USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 63 of 112

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minimal demonstration by the voter that he has some ‘commit- ment’ to the party in whose primary he wishes to participate.” Id. at 847. The registration requirement did not “constitute anything in the nature of an absolute barrier to voting in a primary election.” Id. As a result, the Nader court rejected the plaintiffs’ contention that Connecticut could sustain its law only by showing that the law was the “least drastic means available” to serve its “compelling state interest.” Id. at 844 (citation omitted). Instead, the panel explained that “[t]here must be more than a minimal infringement on the rights to vote and of association . . . before strict judicial review is warranted.” Id. at 849. Then, the Nader court proceeded to what we now consider the second step of the Anderson-Burdick framework: assessing the State’s asserted interests. Nader credited three interests supporting closed primary elections. First, it explained that the Constitution secures the rights of political parties to select their candidates and that states may “af- firmative[ly] protect[]” those “associational rights.” Id. at 845. The

844. Polelle makes the same argument in his reply brief, asserting that he will “suffer harassment by misled solicitations from party operatives at election time.” We don’t consider this argument because (1) Polelle did not plead it, see Iqbal, 556 U.S. at 677, and (2) he raised it for the first time in his reply brief, see Sapuppo, 739 F.3d at 683. But in any event, like in Nader, Polelle’s brief “merely . . . raise[s] the spectre of harassment” and has not made “a detailed factual showing of actual threats or incidents of harassment.” 417 F. Supp. at 844. So we do not consider in our analysis any potential burden on Polelle’s First Amendment interests that Polelle’s speculative threats of harassment at- tempt to raise. USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 64 of 112

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court reasoned that if the political party were “a completely private organization with no government regulation,” it would have ple- nary control over “participation in its nominating process.” Id. So “[i]n the regulated situation, the state has a legitimate interest in protecting party members’ associational rights, by legislating to protect the party ‘from intrusion by those with adverse political principles.’” Id. (quoting Ray v. Blair, 343 U.S. 214, 221 (1952)). Second, and relatedly, the Nader panel discussed the state’s “more general, but equally legitimate, interest in protecting the overall integrity of the historic electoral process,” including “pre- serving parties as viable and identifiable interest groups” and “[e]nsuring that the results of primary elections, in a broad sense, accurately reflect the voting of party members.” Id. To the extent the public relied on parties’ brands to embody certain political po- sitions, the Nader panel said, the state had an affirmative interest in maintaining those brands—and thus aiding the public in making informed voting choices—by “preventing fraudulent and deceptive conduct which mars the nominating process.” Id. Third, the Nader panel concluded that requiring that voters enroll in political parties served “an important housekeeping func- tion” that strengthened electoral competition. Id. at 848. As the panel saw things, “[c]andidates need to know who is in the elec- torate, so that they (the candidates) can attempt to persuade those individuals to vote for them.” Id. “[D]irect solicitation of party members by mail, telephone, or face-to-face contact, and by the candidates themselves or by their active supporters is part of any USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 65 of 112

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primary election campaign.” Id. Yet “without the public list of ” individuals’ registration, “such electioneering would become quite difficult.” Id. In other words, the Nader panel determined, the state’s requirement that individuals register for a particular party to participate in its primary enhanced candidates’ ability to communi- cate with voters, identify their needs, and campaign on those issues. Finally, the Nader court conducted the last Anderson-Burdick step by balancing the burdens on the plaintiffs’ constitutional rights against the State’s asserted interests. Because the burdens on the plaintiffs’ rights were minimal and Connecticut’s election regime was “reasonably related to the accomplishment of legitimate state goals,” the Court reasoned that Connecticut’s closed primary was constitutional. Id. at 849. Influential in the panel’s conclusion was the recognition that, across the country, the format of states’ primary elections “had been the subject of controversy.” Id. Other states, for in- stance, enacted open primaries. Id. But, as the panel observed, one state’s contrary policy choice does not make another’s “election laws unconstitutional” or “invidiously discriminatory.” Id. at 850. Rather, the Nader panel explained, state legislatures “have broad discretion in formulating election policies.” Id. (quoting Tansley v. Grasso, 315 F. Supp. 513, 519 (D. Conn. 1970) (three-judge court)). At bottom, the Nader court concluded that Connecticut’s policy choice served “legitimate goals through constitutionally permissi- ble means,” so there was “no need or occasion for the judicial relief requested by the plaintiffs.” Id. USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 66 of 112

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2. Polelle cannot adequately distinguish his claims from those in Nader, so binding precedent requires us to con- clude that Florida’s interest in closing its primary elec- tions outweighs the burdens on Polelle’s First and Four- teenth Amendment interests under the Anderson-Burdick framework. Polelle appears to make four arguments in support of his contention that Florida’s system of closed primary elections vio- lates his First and Fourteenth Amendment rights. We find none persuasive. To start, two of Polelle’s arguments suggest that we should depart from Anderson-Burdick and strictly scrutinize Florida’s sys- tem of closed primary elections. First, Polelle relies on Hill v. Stone, 421 U.S. 289 (1975), Kramer v. Union Free School District No. 15, 395 U.S. 621 (1969), and other precedent to argue that “restrictions on the franchise other than residence, age, and citizenship must promote a compelling state in- terest in order to survive a constitutional attack,” Hill, 421 U.S. at 295. According to Polelle, party allegiance is not one of the limited restrictive categories that is exempt from strict scrutiny. The problem for Polelle is that Nader expressly rejected Polelle’s argument—and it did so while referencing Hill and Kramer. Indeed, the Nader panel held that “a state might reasonably classify voters or candidates according to party affiliations.” 417 F. Supp. at 848 (quoting Blair, 343 U.S. at 226 n.14). In contrast to the strict qualifications-based restrictions at issue in Hill (only those with USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 67 of 112

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rendered, taxable property could vote) and Kramer (only those who owned or leased taxable real property or had children in public schools could vote), the Nader panel reasoned, party-affiliation re- quirements are “not . . . a political caste system.” Nader, 417 F. Supp. at 848. Rather, Polelle “refrains from entering a party primary” solely “because he regards himself an independent.” Id. at 848 (quoting Pirincin v. Bd. of Elections of Cuyahoga Cnty., 368 F. Supp. 64, 70 (N.D. Ohio) (three-judge court), aff’d mem., 414 U.S. 990 (1973)). So neither Hill nor Kramer allows us to apply any stricter level of scrutiny to the burden Florida’s closed system of primary elections imposes; we apply a flexible standard that calls for a “cor- responding interest sufficiently weighty to justify” the burdens on voters’ rights, Crawford, 553 U.S. at 190 (plurality opinion) (quoting Norman v. Reed, 502 U.S. 279, 288–89 (1992)). And as Nader con- cluded, that burden is minimal. Second, Polelle argues in reply that Janus v. American Federa- tion of State, County, and Municipal Employees, Council 31, 585 U.S. 878 (2018), and other recent, compelled-speech cases require us to apply a higher level of scrutiny to the burden that Florida’s closed system of primary elections imposes on his First Amendment rights to disassociate from political messages with which he disa- grees. But the issue is not, as Polelle suggests, that Nader declined to extend compelled-speech doctrine to the election-law context. Rather, it is that Connecticut’s party-registration requirement did not burden voters as severely as did the state action in the USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 68 of 112

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compelled-speech cases that Nader’s plaintiffs (and Polelle) cited. And Polelle does not offer a concrete reason we should balance the burdens differently. For instance, the burden at issue in Janus—forced monetary subsidization, 585 U.S. at 884—was a burden the Nader court explic- itly found to be absent from Connecticut’s closed-primary require- ments, see 417 F. Supp. at 843 (finding the closed-primary statute imposed “no affirmative party obligations on the voter, in terms of time or money”). Florida’s registration laws similarly do not im- pose monetary burdens on party affiliates. Polelle thus offers no reason we should (or can) depart from the balancing framework Nader and Anderson-Burdick employ. So we move on to Polelle’s third and fourth arguments for why Florida’s closed-primary system violates his First and Four- teenth Amendment rights. In both these arguments, Polelle points to factual distinctions between Florida’s system of closed primaries and the system at issue in Nader, and he says those distinctions com- pel a different conclusion under the Anderson-Burdick framework. Polelle’s third argument relates to the burden side of the balancing test; he suggests the burdens on his Fourteenth Amendment right to an effective vote are much greater here because Sarasota County is a one-party jurisdiction with no competition in the general elec- tion. Then, his fourth argument attempts to rebut some of Flor- ida’s asserted interests; he claims Florida need not support parties’ First Amendment rights because Florida could switch to non- USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 69 of 112

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partisan primaries that secure both his and the parties’ constitu- tional interests. We address each argument in turn. Polelle’s third argument is his strongest. Polelle highlights that here, unlike in Nader, for many public offices, Sarasota County’s primaries are “the only stage of the election procedure when” voters’ “choice is of significance.” Classic, 313 U.S. at 314; see Terry, 345 U.S. at 484 (Clark, J., concurring) (discussing exclusion from “the locus of effective political choice”). When Nader issued, Connecticut was not a “‘one-party’ state” where “one party’s pri- mary” was “completely determinative of the outcome.” 417 F. Supp. at 483 (comparing its facts to those of Classic). Rather, “mi- nor party and independent candidates” could “reasonably antici- pate a measure of success in local elections.” Id. Indeed, “inde- pendent voters” were of “demographic importance . . . in Connect- icut politics.” Tashjian, 479 U.S. at 212. By contrast, the local elections in Sarasota County are dom- inated by a single political party. “Republican primaries,” after all, “have determined the outcome of most of Sarasota County’s par- tisan elections since 1968.” Supra note 4. So the stakes of exclusion from Sarasota County’s primaries are higher here than they were in Nader. But even though the stakes of exclusion are higher here, the actual barriers to enter “the only stage of the election procedure when” a voter’s “choice is of significance,” Classic, 313 U.S. at 314— and therefore the actual burden on Polelle’s First and Fourteenth Amendment interests—are the same as they were in Nader: USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 70 of 112

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minimal. They are not like those in Classic, or the other White Pri- mary Cases that Polelle cites, where the barriers to an effective vote were substantially higher, if not categorical. In Classic, for instance, the United States indicted Classic and others for willfully altering and falsely counting and certifying bal- lots cast in a congressional primary election. 313 U.S. at 307. At a minimum, the false tally diluted the effectiveness of each voter’s ballot. Baker, 369 U.S. at 208 (citing Classic as a case of “dilution by false tally”); Classic, 313 U.S. at 308 (recounting the allegation that the defendants altered around one hundred ballots). And at worst, in a close race, that dilution could change the outcome of an elec- tion so as to completely nullify the voters’ choice. See Jacobson, 974 F.3d at 1246–47 (explaining vote nullification injures voters). And in Terry, as with the other White Primary Cases, Black Americans simply could not participate in the election’s critical juncture. See 345 U.S. at 462–66 (opinion of Black, J.). The Jaybirds, a private political organization, held its own nonpublic primary to predetermine the outcome of certain elections to purposely and categorically deny Black Americans their right to vote. Id. at 469– 70. Classic, Terry, and the other White Primary Cases do not in- volve facts analogous to those at issue here. Polelle does not face similar obstacles to participate in the primary elections where Sar- asota County effectively chooses its representatives. Florida law does not restrict Polelle’s ability to support his candidate of choice; he may do so through a wide variety of means, whether it be USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 71 of 112

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volunteering his time or donating money. See Nader, 417 F. Supp. at 842. At the same time, Florida law places Polelle under no “af- firmative . . . obligation” to contribute “time or money” to a party. Id. at 843. Nor must Polelle profess substantive support for “the party’s positions or candidates” or make any other pledge of affili- ation “comparable to . . . coerced orthodoxy.” Id. at 843–44. And as Polelle admits, he can vote in a party primary “so long as he has changed his non-affiliated registration to affiliation with a political party recognized by the State of Florida twenty- nine days prior to the primary in question.” That “enrollment pro- cess” imposes only the “minimal . . . ‘commitment’” of registering with a party and does not “constitute anything in the nature of an absolute barrier.” Nader, 417 F. Supp. at 847. And just like in Nader, Polelle can disaffiliate at any time. Id. Florida does not lock him into an unwanted party affiliation after registration. See Clingman, 544 U.S. at 591 (citing Kusper v. Pontikes, 414 U.S. 51, 60–61 (1973)). In fact, Polelle may not even have to wait until after a primary elec- tion to disaffiliate from the party of the primary in which he wishes to participate. Florida law may allow him to do so after the regis- tration books for the primary election close on the twenty-ninth day before the primary occurs.22 So if Polelle truly wished, he

22 “A person can register with a party or change his or her party affiliation any

time, but to vote for a party candidate in a primary election, one must be reg- istered with the party before the voter registration deadline, which is the 29th day before an election.” Primary Elections, RON TURNER, SUPERVISOR OF ELECTIONS, https://www.sarasotavotes.gov/Election-Information/Primary- USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 72 of 112

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could conceivably register with a party for a short period to qualify for a relevant primary election but disaffiliate thereafter. Because Polelle “can join a political party merely by asking for the appropriate ballot at the appropriate time or (at most) by registering within a state-defined reasonable period of time before an election,” Florida’s closed primary “does not unduly hinder” his First and Fourteenth Amendment rights. Clingman, 544 U.S. at 590 (quoting Jones, 530 U.S. at 596 (Stevens, J., dissenting)) (cleaned up); see also id. at 604 (O’Connor, J., concurring in part and concurring in the judgment) (explaining “reasonable reregistration proce- dures” suggest an absence of “anticompetitive regulatory re- strictions,” “partisan self dealing[,] or a lockup of the political pro- cess that would warrant heightened judicial scrutiny”). Polelle’s fourth proposed distinction seeks to convince us that the interests that Florida asserts at the second step of the An- derson-Burdick balancing framework are due less weight than Con- necticut’s same interests in Nader. He notes that the Supreme Court in Washington State Grange v. Washington State Republican Party, facially upheld Washington’s non-partisan primaries. 552 U.S. 442 (2008). So he argues that Florida can’t rely on its interest in supporting political parties’ First Amendment rights to select its

Elections (last visited Feb. 17, 2025) [https://perma.cc/M6LV-LJZD]. “Once the registration books are closed for an election, new registrations and party changes will be accepted but only for the purpose of future elections.” Id. (emphasis added). USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 73 of 112

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nominee; as Jones discussed, parties’ rights are “are not inherently incompatible” with Polelle’s. 530 U.S. at 586. To be sure (and as we’ve explained), Polelle’s claims are dis- tinguishable from those in Nader and Jones because Polelle does not request relief that directly infringes parties’ associational rights. But Polelle’s argument removes from the Anderson-Burdick balance only Florida’s asserted interests in supporting parties’ own First Amendment rights. It does not undermine the other legitimate in- terests a state still has in bolstering partisan electoral competition by preserving political parties as viable and identifiable interest groups and enhancing candidates’ electioneering and party-build- ing efforts. And those, we hold, are still sufficiently weighty to jus- tify the minimal burdens on his First and Fourteenth Amendment rights. Florida may wish to promote political parties as viable and identifiable interest groups because it may permissibly conclude that “proper party functioning is critical to the central public good of democratic governance.” SAMUEL ISSACHAROFF, DEMOCRACY UNMOORED 65 (Oxford Univ. Press 2023); see Timmons v. Twin Cities Area New Party, 520 U.S. 351, 367 (1997) (“The Constitution permits the Minnesota Legislature to decide that political stability is best served through a healthy two-party system.”). To govern effectively, elected officials must find compromise among dozens, if not hundreds, of colleagues who represent a di- verse group of constituents with varying interests. Coordinating a legislative agenda can be difficult, if not impossible, even at the USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 74 of 112

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local level. See generally Kenneth J. Arrow, A Difficulty in the Concept of Social Welfare, 58 J. POL. ECON. 328 (1950) (explaining, in a Nobel Prize-winning piece, that it is difficult, if not impossible, to aggre- gate elected officials’ and voters’ policy preferences into collective choices). So governments seek democratic structures that help re- duce this collective-action difficulty and enable them to effect change that benefits the people they represent. And Florida may constitutionally conclude that political par- ties provide such a democratic structure. The State may reasonably determine that political parties help identify voters’ preferences and mediate between candidates’ ideologies so that elected officials can cohere around a set of policy priorities. See ISSACHAROFF, DEMOCRACY UNMOORED, supra, at 65. Or it may believe that parties help officials conduct daily business; parties could eliminate, for in- stance, the need for one legislature to whip several dozens if not hundreds of votes themselves. Id. As the Supreme Court has re- peatedly recognized, parties “were created by necessity . . . so as to coordinate efforts to secure needed legislation and oppose that deemed undesirable.” Blair, 343 U.S. at 221; see also Davis v. Bandemer, 478 U.S. 109, 144–45 (1986) (O’Connor, J., concurring in the judgment) (“[A] strong and stable two-party system in this country has contributed enormously to sound and effective gov- ernment.”); Branti v. Finkel, 445 U.S. 507, 532 (1980) (Powell, J., dis- senting) (“Broad-based political parties supply an essential coher- ence and flexibility to the American political scene.”). USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 75 of 112

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Florida could also reasonably conclude that coordinating governance through political parties empowers voters. See Nader, 417 F. Supp. at 845; Clingman, 544 U.S. at 594. As binding precedent explains, when “party labels” become “representative of certain ideologies,” Nader, 417 F. Supp. at 845, voters may be better able to identify policies and government action with particular candidates or parties. So Florida could conclude that elected officials may then govern more effectively, knowing that voters may more easily rec- ognize their failures to deliver on particular promises. See Nicholas O. Stephanopoulos, Accountability Claims in Constitutional Law, 112 NW. U. L. REV. 989, 1002 (2018) (“If [elected officials’] records are strong, voters cast their ballots for the incumbents; if they are weak, voters throw their support to the challengers.”). Not only that, but Florida may rationally find that closed pri- maries are “reasonable election regulations that,” Timmons, 520 U.S. at 367, further these legitimate interests, see Nader, 417 F. Supp. at 845 (recognizing Connecticut’s closed primary advances the State’s interest in “preserving parties as viable and identifiable in- terest groups” and “protecting the overall integrity of the historic electoral process”). The State may reasonably believe that closed primaries pro- mote political parties’ continuing viability by requiring some level of engagement with them. As the Supreme Court has observed, it is possible for certain electoral systems to render parties “an unre- liable index of [their] candidate’s actual political philosophy,” Cling- man, 544 U.S. at 595; see Wash. State Grange, 552 U.S. at 454–49 USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 76 of 112

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(accepting that certain non-partisan ballot designs could misrepre- sent the extent of a candidate’s affiliation with a political party, thereby confusing voters). A state could reasonably be concerned in that case that voters may struggle to identify their candidates of interest or hold elected officials accountable based on their adher- ence to party platforms with which they agree. See Stephanopou- los, supra, at 1003 (explaining voters may only vote retrospectively, and thus hold elected officials accountable, when they know whom “to credit or blame for the performances they have observed and appraised”). So Florida can rationally think that a traditional closed-primary election supports effective governance by eliminat- ing this concern. Florida could also permissibly conclude that closed prima- ries enhance its interest in effective governance by supporting par- ties’ electioneering efforts. The Supreme Court has recognized that affiliation requirements may ensure “party affiliations” are “meaningful.” Clingman, 544 U.S. at 595. As the Court explained in Clingman, “[w]hen voters are no longer required to disaffiliate”— or even affiliate at all—“before participating in other parties’ prima- ries, voter registration rolls cease to be an accurate reflection of voters’ political preferences.” Id. That can be significant, the Court explained, because “parties’ voter turnout efforts depend in large part on accurate voter registration rolls.” Id. Parties and “[c]andi- dates need to know who is in the electorate, so that they (the can- didates) can attempt to persuade those individuals to vote for them.” Nader, 417 F. Supp. at 848. USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 77 of 112

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Of course, “encouraging citizens to vote is an important state interest” in and of itself. Clingman, 554 U.S. at 596. But as Nader and Clingman acknowledge, closed primaries’ housekeeping function also enables parties to identify their voters and those vot- ers’ interests and then promote candidates who will advance them in public office. So Florida can constitutionally conclude that its closed-primary regime may promote both effective governance and electoral accountability. To be clear, we are not suggesting that closed primaries are the best electoral system. There are many legitimate interests that weigh in favor of semi-open, open, non-partisan, and other systems of primary elections. See Jones, 530 U.S. at 584 (explaining a state may have a legitimate interest in choosing an electoral system that promotes fairness, affords voters greater choice, increases voter participation, and protects privacy). States across the country have adopted a wide variety of primary regimes. See New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting) (explain- ing states may “serve as a laboratory; and try novel . . . experi- ments”). In fact, “[t]he relative merits of ” different primary sys- tems “have been the subject of substantial debate since the begin- ning of ” the nineteenth century, and “no consensus has as yet emerged.” Tashjian, 479 U.S. at 223 & n.11. So all we conclude here is that Florida has legitimate inter- ests in conducting closed primaries, as opposed to any other system of primary elections, and that those legitimate state interests are USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 78 of 112

78 Opinion of the Court 22-14031

“sufficiently weighty to justify the limitation[s]” on Polelle’s First and Fourteenth Amendment rights. Norman, 502 U.S. at 288–89. * * * In sum, Florida’s system of closed primary elections survives scrutiny under the Anderson-Burdick framework. We acknowledge that the stakes of Sarasota County’s primary elections are weight- ier than of those in Nader and Tashjian. And we recognize that Flor- ida, in this posture, may not rely on its interest in supporting par- ties’ own First Amendment rights. Still, Florida’s interests in sup- porting parties as identifiable groups and improving electioneering efforts outweigh the minimal burdens that Florida’s closed-primary system imposes on Polelle’s First and Fourteenth Amendment rights. Should Polelle desire to participate in the important stage of Sarasota County’s primary elections, he need only file registra- tion papers with a party. Jones, 530 U.S. at 584; accord Clingman, 544 U.S. at 590–91; Nader, 417 F. Supp. at 848. Florida requires no addi- tional commitment from its voters. That said, we do not question the vigor of Polelle’s sincerely held political beliefs. Nor do we doubt the “indignity” he may suf- fer by having to “switch” his registrations in contravention of those beliefs. Indeed, Florida’s law puts him to a “hard choice.” Jones, 530 U.S. at 584. But it is not one that the Constitution forbids. Florida chose “the primary election scheme that it thinks will best promote democratic, electoral and governmental goals.” Nader, 417 F. Supp. at 843. And if Polelle thinks Florida made the wrong decision, he may convince his representatives or his fellow USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 79 of 112

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Floridians of the State’s error. “But the Constitution” ultimately “leaves that choice to the democratic process, not to the courts.” Clingman, 544 U.S. at 598. IV. CONCLUSION We vacate the district court’s order granting Defendants’ motions to dismiss. Because we conclude Polelle does not have standing to sue Secretary Byrd, we remand with instructions to grant Secretary Byrd’s motion to dismiss without prejudice. And because we conclude Polelle failed to state a claim for relief, we remand with instructions to grant Supervisor Turner’s motion to dismiss with prejudice. VACATED AND REMANDED. USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 80 of 112

22-14031 ABUDU, J., Concurring 1

ABUDU, Circuit Judge, joined by ROSENBAUM, Circuit Judge, Con- curring: The law today as it stands, which the majority opinion rec- ognizes, is that, under these facts, independent voters do not have the right to vote in a closed partisan primary election. The prece- dential basis for this is Nader v. Schaffer, 429 U.S. 989 (1976) (mem.), in which the Supreme Court summarily affirmed a lower court de- cision which upheld the exclusion of independent voters from Con- necticut’s closed primary system. See 417 F. Supp. 837 (D. Conn. 1976). While Nader’s holding is still the applicable legal standard in these types of voter access cases, the electoral landscape is changing such that the First and Fourteenth Amendment implications of Nader warrant serious consideration. Polelle has argued that Florida’s closed primary elections preclude independent voters from affecting the outcome of the general election to the same extent as party voters. Consequently, the exclusion of Sarasota County’s independent voters from pri- mary elections, many of which may be outcome-determinative, persists and their ability to influence who the county’s political leaders will be is non-existent. Even more significantly, the ability of independent voters to influence county policies and procedures that directly impact them is seriously diminished. Essentially, inde- pendent voters have a defined political identity, but they have no real political power. Statistics show that, with growing disapproval of both major political parties, more Americans are identifying as independent USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 81 of 112

2 ABUDU, J., concurring 22-14031

voters – a mandatory declaration in Florida which requires people to pick a party when registering to vote.1 In the last quarter cen- tury, the population of independent voters in Florida has grown from 1.5 million in 2000, to 3.7 million in 2024, representing about 40% of the growth in the State’s registered voters over that period. 2 Nationally, large numbers of Black and Hispanic/Latino voters have left the two-party system. The Hispanic/Latino voter popu- lation experienced a drop in Democratic and Republican voters from 1999 to 2023 from 44% to 26%, and 17% to 15%, respectively.3 Simultaneously, independent Hispanic/Latino voters grew from 39% to 55%. 4 Likewise, the population of Black, non-Hispanic in- dependent voters grew from 29% to 46% and experienced a drop in Democratic voters from 65% to 46% during the same period.5 The flight from the two-party system is happening even as Black and Hispanic/Latino populations comprise a greater share of the electorate. As of 2024, 13% of registered voters are Hispanic/La- tino, up from 4% in 1996; and 11% of registered voters are Black,

1 Party Affiliation, GALLUP, https://news.gallup.com/poll/15370/party-affilia-

tion.aspx (last visited Feb. 5, 2024). 2 Voter Registration By Party Affiliation, Florida Division of Elections, https://dos.fl.gov/elections/data-statistics/voter-registration-statis- tics/voter-registration-reports/voter-registration-by-party-affiliation/ [https://perma.cc/NJH5-UDWL]. 3 Jeffrey Jones & Lydia Saad, Democrats Lose Ground with Black and Hispanic

Adults, GALLUP, https://news.gallup.com/poll/609776/democrats-lose- ground-black-hispanic-adults.aspx (Feb. 7, 2024). 4 Id.

5 Id. USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 82 of 112

22-14031 ABUDU, J., Concurring 3

up from 9% in 1996. 6 In 2024, 43% of American voters identified as independent, whereas 28% identified as Republican and 28% identified as Democrat. 7 In concrete ways, the growing independent voter population is being deprived of the “constitutional right of choice,” particu- larly where closed primary elections are outcome determinative. United States v. Classic, 313 U.S. 299, 319 (1941). To put Nader in perspective, a challenge against a closed primary system in a voting district where an insignificant number of individuals want to par- ticipate ought to be less compelling than the increasingly likely sce- nario where the inclusion of independent voters actually would make a difference and, thus, where an incumbent political party may feel a pull towards erecting anti-competitive electoral regula- tions.8 Unfortunately, today’s decision, invisibly wrapped in cases which have refused to recognize certain partisan election schemes as unconstitutional, could leave this growing segment of the elec- torate without a voice and without legal recourse. See, e.g., Rucho v. Common Cause, 588 U.S. 684 (2019) (rejecting, as non-justiciable, a challenge to North Carolina’s redistricting scheme in which

6 The Changing Demographic Composition of Voters and Party Coalitions, PEW

RSCH. CENTER, https://www.pewresearch.org/politics/2024/04/09/the- changing-demographic-composition-of-voters-and-party-coalitions/ (Apr. 9, 2024). 7 Party Affiliation, GALLUP, https://news.gallup.com/poll/15370/party-affilia-

tion.aspx (last visited Feb. 5, 2024). 8 “Insignificant,” as used here, means not enough voters to change the out-

come of an election. USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 83 of 112

4 ABUDU, J., concurring 22-14031

Republican-led legislature admitted to drawing maps “favorable to Republican candidates,” while acknowledging that “race and poli- tics are highly correlated,” Common Cause v. Rucho, 318 F. Supp. 3d 777, 803–04 (M.D.N.C. 2018)). The current legal landscape, at times finding political parti- sanship claims non-justiciable, may be unfit for the modern politi- cal terrain. 9 However, it does not need to be. The Supreme Court’s summary affirmance in Nader arguably embraced the concept that a court’s jurisdiction involves “correct[ing] governmental action which otherwise conflicts with” the Constitution. Nader, 417 F. Supp. at 850, aff’d, 429 U.S. 989 (1976). It should be evident that restrictions to the ballot, even under the veil of political partisan- ship, in some instances can conflict with the constitutional protec- tions that otherwise surround the right to vote. See Smith v. All- wright, 321 U.S. 649, 661–62 (1944) (recognizing that the right to vote in a primary “without discrimination by the State . . . is a right secured by the Constitution.”). 10

9 See Rucho, 588 U.S. at 718 (explaining the lack of standards to govern judicial

review of partisan gerrymandering claims rendered the claim non-justiciable). Partisanship-based claims may be justiciable, however, where there are man- ageable standards, such as where individuals are invidiously excluded from elections or where a statute creates one, see id. at 716 (suggesting “statutory provisions” can “confin[e] and guid[e] the exercise of judicial discretion”). 10 See Reynolds v. Sims, 377 U.S. 533, 554 (1964) (“[A]ll qualified voters have a

constitutionally protected right to vote”); see also Classic, 313 U.S. at 315 (“[T]he right of qualified voters within a state to cast their ballots and have them counted . . . is a right secured by the Constitution.”). USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 84 of 112

22-14031 ABUDU, J., Concurring 5

Here, the practical implications of excluding Sarasota County’s independent voters echo similarities to Terry v. Adams, 345 U.S. 461 (1953), in which the Court struck down an electoral scheme for primary elections which systematically excluded Black voters. The Court reasoned that “the Democratic primary and the general election . . . [became] no more than the perfunctory ratifi- ers of the choice that has already been made in [] elections from which [African-Americans] have been excluded.” Id. at 469. While racial animus drove the unlawful tactics in Terry, closed primary schemes could become just another proxy for the exclusion of pop- ulations that might upend the political dominance of one party over other political voices. Thus, the concern about outsiders in- fluencing partisan primary elections could become a more covert excuse for electoral exclusion. Without any available legal reme- dies, these “outlier” voters are politically silenced. The Supreme Court, in United States v. Classic, stated: we cannot close our eyes to the fact . . . that the prac- tical influence of the choice of candidates at the pri- mary may be so great as to affect profoundly the choice at the general election even though there is no effective legal prohibition upon the rejection at the election of the choice made at the primary and may thus operate to deprive the voter of his constitutional right of choice. 313 U.S. at 319. We, too, should not ignore this truth in Sarasota County. USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 85 of 112

22-14031 TJOFLAT, J., Dissenting in Part 1

TJOFLAT, Circuit Judge, concurring in part and dissenting in part: Professor emeritus of law Michael Polelle sued Florida Sec- retary of State Cord Byrd and Sarasota County Supervisor of Elec- tions Ron Turner, challenging Florida’s closed-primary system. Polelle alleged that, as a No Party Affiliation voter, the system “sup- press[ed] . . . his primary vote in selecting political candidates” and thus violated his First and Fourteenth Amendment rights. But Polelle never explained how a court ruling would secure him the vote he sought. Instead, he asked the District Court to enjoin the system altogether. Courts do not wield the Constitution as a blunt instrument to level the political playing field. We resolve only concrete “Cases” or “Controversies.” U.S. Const. art. III, § 2, cl. 1. The Dis- trict Court correctly held that Polelle lacked standing. The Majority disagrees. 1 It does so by distorting two funda- mental limits on judicial power. First, the Majority reframes Polelle’s political dissatisfaction as a legally cognizable injury. It is not. Second, the Majority dilutes the redressability requirement of standing by proposing an injunction that Polelle never requested and that courts have no authority to issue. Under binding

1 The Majority concludes that, “as to Secretary Byrd, Polelle fails to carry his

burden of identifying cognizable traceability and redressability theories.” Maj. Op. at 39. I agree. This dissent focuses on the Majority erring by not conclud- ing the same for Supervisor Turner. USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 86 of 112

2 TJOFLAT, J., Dissenting in Part 22-14031

precedent, Polelle lacks standing. Because the Majority says other- wise, I respectfully dissent. * * * My dissent proceeds in four parts. First, I review the facts of this case. Second, I summarize the hornbook requirements of Arti- cle III standing. Third, I explain why the Majority’s application of standing is not faithful to our precedent. Fourth, I conclude. I. Facts Michael Polelle, a Sarasota County resident and registered voter with “No Party Affiliation” (NPA), sued Florida Secretary of State Cord Byrd and Sarasota County Supervisor of Elections Ron Turner under 42 U.S.C. § 1983, challenging Florida’s closed-pri- mary system. He alleged that Florida’s election laws violated his constitutional rights by preventing him from voting in partisan pri- maries. His complaint asserted three claims: 1. “Violation of the First Amendment Freedom from Compelled Speech or Compelled Association.” Florida’s primary system, Polelle ar- gued, forces NPA voters to affiliate with a political party if they want to participate in primaries, violating their rights against compelled speech and association. 2. “Violation of the Fundamental Right to Vote Provided by the Free Speech Clause of the First Amendment of the United States Consti- tution.” By barring NPA voters from voting in partisan pri- maries, Polelle argued, Florida unconstitutionally burdens NPA voters’ right to vote, especially in jurisdictions where USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 87 of 112

22-14031 TJOFLAT, J., Dissenting in Part 3

one party’s primary effectively decides the general election outcome. 3. “Violation of the Fourteenth Amendment Equal Protection Clause.” According to Polelle, the state’s primary system discrimi- nates against NPA voters by denying them access to tax- payer-funded elections in which party-affiliated voters could participate. In simpler terms, Polelle alleged that because he was not af- filiated with a political party, he was shut out of Florida’s partisan primary elections—even when those elections effectively deter- mined the winners of the general election. He claimed this re- striction forced him to either join a party against his will or forgo a meaningful vote. As relief, Polelle sought: 1. A declaration that Florida’s closed-primary law (Fla. Stat. § 101.021) 2 and its universal-primary exception (Fla. Const.

2 Polelle requested a declaration and injunction concerning Ҥ 101.102 Fla.

Stat. (2021)”—a statute that does not exist. I assume he meant § 101.021. That statute says, In a primary election a qualified elector is entitled to vote the official primary election ballot of the political party designated in the elector’s registration, and no other. It is unlawful for any elector to vote in a primary for any candidate running for nom- ination from a party other than that in which such elector is registered. Fla. Stat. § 101.021. USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 88 of 112

4 TJOFLAT, J., Dissenting in Part 22-14031

art. VI, § 5(b)) 3 violate the First and Fourteenth Amend- ments, both facially and as applied to him; 2. A permanent injunction prohibiting Florida officials from en- forcing those provisions or any other laws that prevent NPA voters from voting in partisan primaries; and 3. “Any other relief deemed just and proper.” The Defendants moved to dismiss Polelle’s complaint, argu- ing that Polelle lacked standing and failed to state a claim. They contended that Polelle lacked standing because an individual voter has no constitutional right to participate in a political party’s pri- mary without affiliating with that party. And they asserted that Polelle’s proposed remedy—forcing unaffiliated voters into a party’s closed primary—would violate the First Amendment rights of political parties by compelling the parties to associate with non- members. Polelle responded by doubling down on his claims and ex- panding his arguments. He asserted taxpayer standing—both as a federal taxpayer and as a Sarasota County taxpayer—contending that his tax dollars funded elections in which he was excluded from participating. In response to the Defendants’ argument that his re- quested relief would violate the political parties’ First Amendment

3 That provision says, “If all candidates for an office have the same party affili-

ation and the winner will have no opposition in the general election, all qual- ified electors, regardless of party affiliation, may vote in the primary elections for that office.” Fla. Const. art. VI, § 5(b). USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 89 of 112

22-14031 TJOFLAT, J., Dissenting in Part 5

rights, Polelle “clarified” that he was not advocating for a blanket primary or asking for a partisan ballot if that was impermissible. Instead, he suggested that the District Court could wipe the slate clean and the Florida legislature could adopt alternative primary structures that would allow NPA voters to participate without in- fringing on the political parties’ associational rights. The District Court sided with the defendants and dismissed Polelle’s complaint. The Court held that Polelle lacked standing be- cause he had only a “desire” to vote in a party primary, not a legally protected interest in doing so. And even if he had standing, the Court concluded that he failed to state a claim: Florida’s primary system is a permissible exercise of state authority over elections, and nothing in the Constitution requires the state to allow non- party members to participate in party primaries. II. A Primer on Standing Under Article III of the U.S. Constitution, federal courts de- cide only “Cases” or “Controversies.” U.S. Const. art. III, § 2, cl. 1. This limitation is “fundamental to the judiciary’s proper role in our system of government.” Murthy v. Missouri, 603 U.S. 43, 56, 144 S. Ct. 1972, 1985 (2024) (citations and internal quotation marks omit- ted). It means that “federal courts can address only questions ‘his- torically viewed as capable of resolution through the judicial pro- cess.’” Rucho v. Common Cause, 588 U.S. 684, 695, 139 S. Ct. 2484, 2493–94 (2019) (quoting Flast v. Cohen, 392 U.S. 83, 95, 88 S. Ct. 1942, 1950 (1968)). USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 90 of 112

6 TJOFLAT, J., Dissenting in Part 22-14031

To ensure that a case or controversy exists, a plaintiff “must establish that [he] ha[s] standing to sue.” Raines v. Byrd, 521 U.S. 811, 818, 117 S. Ct. 2312, 2317 (1997). Standing requires “an injury that is ‘concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.’” Murthy, 603 U.S. at 44, 144 S. Ct. at 1986 (quoting Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409, 133 S. Ct. 1138, 1147 (2013)). “The party invoking federal jurisdiction”—in this case, Polelle—“bears the burden of establishing these elements.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 561, 112 S. Ct. 2130, 2136 (1992). Relevant here are the first and third requirements: injury in fact and redressability. 4 I dis- cuss each in turn. 1. Injury in Fact To satisfy the injury-in-fact requirement, a plaintiff must show he has “suffered ‘an invasion of a legally protected interest’

4 As for the Majority’s decision to analyze redressability and traceability to-

gether, I agree that those two elements are often correlated. See Food & Drug Admin. v. All. for Hippocratic Med., 602 U.S. 367, 380-81, 144 S. Ct. 1540, 1555 (2024). But as the Supreme Court warns, “while traceability and redressabil- ity are often flip sides of the same coin, that is not always the case.” Murthy, 603 U.S. at 74 n.11, 144 S. Ct. at 1996 n.11 (citation and internal quotation marks omitted); see also Hippocratic Med., 602 U.S. at 381 n.1, 144 S. Ct. at 1555 n.1 (“Redressability can . . . pose an independent bar” to standing, such as when “a plaintiff . . . suffers injuries caused by the government[,] . . . because the case may not be of the kind ‘traditionally redressable in federal court.’” (citations omitted)). Sometimes, as here, a plaintiff can satisfy traceability and fail to es- tablish redressability. USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 91 of 112

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that is “concrete and particularized’ and ‘actual or imminent.’” Spokeo, Inc. v. Robins, 578 U.S. 330, 339, 136 S. Ct. 1540, 1548 (2016) (quoting Lujan, 504 U.S. at 560, 112 S. Ct. at 2136). For an injury to be concrete, we “assess whether [it] has a ‘close relationship’ to a harm ‘traditionally’ recognized as providing a basis for a lawsuit in American courts.” TransUnion LLC v. Ramirez, 594 U.S. 413, 424, 141 S. Ct. 2190, 2204 (2021) (quoting Spokeo, Inc., 578 U.S. at 341, 136 S. Ct. at 1549). While an “exact duplicate” is unnecessary, a plaintiff must identify a “close historical or common-law analogue for [his] asserted injury.” Id. And “traditional harms may also include harms specified by the Constitution itself.” Id. at 425, 141 S. Ct. at 2204. For an injury to be particularized, “the injury must affect the plaintiff in a personal and individual way.” Lujan, 504 U.S. at 560 n.1, 112 S. Ct. at 2136 n.1. An “undifferentiated” or “generalized griev- ance” is not enough. Id. at 575, 112 S. Ct. at 2144 (quoting United States v. Richardson, 418 U.S. 166, 176–77, 94 S. Ct. 2490, 2946 (1974) (internal quotation marks omitted)). And finally, an injury must also be actual or imminent, rather than “conjectural or hypothetical.” Id. at 560, 112 S. Ct. at 2136 (ci- tation and internal quotation marks omitted). An actual injury is a harm that the plaintiff has already sustained. See Sierra v. City of Hallandale Beach, 996 F.3d 1110, 1113 (11th Cir. 2021). Conversely, an imminent injury is one that the plaintiff has not yet suffered but that is “certainly impending.” Whitmore v. Arkansas, 495 U.S. 149, 158, 110 S. Ct. 1717, 1724–25 (1990) (citations and internal quota- tion marks omitted). A plaintiff seeking damages must allege an USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 92 of 112

8 TJOFLAT, J., Dissenting in Part 22-14031

actual injury, while one seeking an injunction must show an immi- nent one. Sierra, 996 F.3d at 1113. 2. Redressability It is not enough for a plaintiff to have pleaded an injury. Standing also requires that a plaintiff show “a likelihood that the requested relief will redress the alleged injury.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 103, 118 S. Ct. 1003, 1017 (1998). “Re- lief that does not remedy the injury suffered cannot bootstrap a plaintiff into federal court.” Id. at 107, 118 S. Ct. at 1019. Like injury in fact, the Supreme Court has consulted history when analyzing redressability. To determine whether the relief sought will redress the plaintiff’s alleged injury, the Supreme court has “look[ed] to the forms of relief awarded at common law.” Uzuegbunum v. Preczewski, 592 U.S. 279, 285, 141 S. Ct. 792, 797–98 (2021). That is, a court must determine whether the type of relief sought was traditionally available to redress the alleged harm. To take an obvious example, a plaintiff’s “belief that a favorable judg- ment will make him happier” is not “an acceptable Article III rem- edy because it does not redress a cognizable Article III injury.” Steel Co., 523 U.S. at 107, 118 S. Ct. at 1019. Similarly, “a decision [that] might persuade actors who are not before the court” to alter their conduct is not enough for re- dressability. Haaland v. Brackeen, 599 U.S. 255, 294, 143 S. Ct. 1609, 1639–40 (2023). “Redressability requires that the court be able to afford relief through the exercise of its power, not through the persua- sive or even awe-inspiring effect of the opinion explaining the USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 93 of 112

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exercise of its power.” Id. at 294, 143 S. Ct. at 1639 (quoting Franklin v. Massachusetts, 505 U.S. 788, 825, 112 S. Ct. 2767, 2788 (1992) (Scalia, J., concurring in part and concurring in judgment) (internal quotation marks omitted)). Said differently, “‘it must be the effect of the court’s judgment on the defendant’—not an absent third party— ‘that redresses the plaintiff’s injury, whether directly or indirectly.’” Lewis v. Governor of Alabama, 944 F.3d 1287, 1301 (11th Cir. 2019) (en banc) (citations omitted). That means the relief sought must “affec[t] the behavior of the defendant towards the plaintiff.” Uzuegbunum, 592 U.S. at 291, 141 S. Ct. at 801 (citations and internal quotation marks omitted). This redressability requirement may seem like a high bar to meet. Maybe so. But the Supreme Court has cautioned that the “as- sumption that if [the appellant] ha[s] no standing to sue, no one would have standing, is not a reason to find standing.” Clapper, 568 U.S. at 420, 133 S. Ct. at 1154 (citations and internal quotation marks omitted). The Framers deliberately left many disputes to the political process, not the courts. See Hippocratic Med., 602 U.S. at 380, 144 S. Ct. at 1555. It is not within our discretion as judges to alter that design. III. The Majority’s Missteps With these foundational standing principles in mind, I turn to the Majority’s analysis. Despite acknowledging the require- ments for standing, the Majority departs from them in two funda- mental ways: first, by recasting Polelle’s claims to find an injury, USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 94 of 112

10 TJOFLAT, J., Dissenting in Part 22-14031

and second, by attenuating redressability beyond its limits. Neither approach comports with precedent. A. Injury in Fact The District Court found that Polelle alleged no legally cog- nizable injury. It reasoned that his “associational interest in select- ing the candidate of a group to which [he] does not belong[] falls far short of a constitutional right, if indeed it can even fairly be char- acterized as an interest.” Polelle v. Byrd, No. 8:22-CV-1301-SDM- AAS, 2022 WL 17549962, at *1 (M.D. Fla. Nov. 3, 2022) (quoting California Democratic Party v. Jones, 530 U.S. 567, 573 n.5, 120 S. Ct. 2402, 2407 n.5 (2000) (internal quotation marks omitted)). The Ma- jority disagrees. In his complaint, Polelle described his injury as a “suppres- sion of his primary vote in selecting political candidates who are obligated to represent all citizens of the United States and Flor- ida.” Polelle equated this primary vote to “his fundamental right to vote in elections” and claimed that he does not “hav[e] the same opportunity to affect the outcome of a general election to the same extent as members of political parties.” Under the most liberal con- struction of his complaint, Polelle argued that because Florida lim- its participation in its primaries to party members, the general elec- tion is less meaningful for him—depriving him of a fully effective vote. Or put another way, Polelle is dissatisfied with the way can- didates are selected for the general election. That complaint is not cognizable for a simple reason: Polelle has the same vote in the general election as every other eligible USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 95 of 112

22-14031 TJOFLAT, J., Dissenting in Part 11

voter in his county. He has not alleged, much less established, any impediment to casting a ballot for his preferred candidate or other- wise engaging in the political process. See Jacobson v. Fla. Sec’y of State, 974 F.3d 1236, 1246 (11th Cir. 2020). His real grievance is not that Florida prevents him from voting—it is that he dislikes the po- litical landscape in which he must cast his vote. And as this Court has long recognized, “[v]oters have no judicially enforceable inter- est in the outcome of an election.” Id. (citing Raines, 521 U.S. at 819, 824, 830, 117 S. Ct. at 2317, 2319–20, 2322–23). The Majority sidesteps this practical reality by conflating pri- mary elections and general elections to manufacture an injury where none exists. But here, Polelle’s right to vote means the right to participate on equal footing in the general election—it does not entitle him to shape the primary process of a political party he re- fuses to join. See id. at 1247 (“[A] citizen is not injured by the simple fact that a candidate for whom []he votes loses or stands to lose an election.”). If Polelle’s views prevail in the general election, he will be represented by a political candidate aligned with his interests. If other voters disagree, he will not be. That is how elections work in a representative democracy. The Majority has no real answer to this. It protests that Polelle’s grievance is about opportunity, not outcome. Maj. Op. at 27. But when it comes to standing, wordplay cannot create an injury where none exists. “Opportunity” to what end? To influence an election’s outcome—exactly what we have long held is not a cog- nizable injury. The Majority’s opinion supports this—it finds the USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 96 of 112

12 TJOFLAT, J., Dissenting in Part 22-14031

need to grant Polelle’s motion to supplement the record and cite online sources that support propositions such as that “Republican primaries, for instance, ‘have determined the outcome of most Sar- asota County’s partisan elections since 1968.’” Maj. Op. at 5 (quot- ing Carrie Seidman, In Sarasota County, Voters May Find It’s Better To Switch Than Stick, Sarasota Herald-Trib. (May 10, 2024), [https://perma.cc/YV62-R7KW]). Still, the Majority insists that Polelle’s claims are “identical” to those where courts adjudicated election-law challenges on the merits. Maj. Op. at 36. But that is wrong. Unlike this case, the deci- sions the Majority cites involved cognizable injuries—vote dilu- tion, exclusion from primary elections on racial grounds, and harm from other election laws designed to disadvantage racial minori- ties. The differences are glaring. Unlike the plaintiffs in those cases, Polelle faces no obstacle to voting, no dilution of his vote, and no statutory restriction that makes his ballot count less than others. Again, the Majority doubles down. To justify why racially discriminatory voting practices are analogous constitutional inju- ries here, the Majority says: For voters to show that their “right . . . to vote” is “denied or abridged . . . on account of race,” they must show that their “right . . . to vote” is “denied or abridged.” U.S. Const. amend. XV, § 1. Equally so, under the Fourteenth Amendment, plaintiffs gener- ally “prove purposeful discrimination” by establish- ing that they “have less opportunity to participate in the political processes and to elect candidates of their USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 97 of 112

22-14031 TJOFLAT, J., Dissenting in Part 13

choice.” Rogers v. Lodge, 458 U.S. 613, 624 (1982); ac- cord Osburn, 369 F.3d at 1288. So the abridgment that Polelle alleges—exclusion from an outcome-determi- native election—“deprive[s]” him “of voting rights.” Terry, 345 U.S. at 470 (opinion of Black, J.). Maj. Op. at 31–32. This is a sleight of hand. The Majority seizes on isolated phrases from constitutional provisions and cases, splices them to- gether, and pretends that the Supreme Court has recognized a broad constitutional injury whenever a voter claims his right to vote in any election has been “denied” or “abridged.” But the Su- preme Court has never held that. The Fifteenth Amendment prohibits denying or abridging the right to vote “on account of race, color, or previous condition of ser- vitude”—not political dissatisfaction with a state’s election laws. U.S. Const. amend. XV, § 1. The Fourteenth Amendment requires proof of purposeful discrimination—not proof that a voter dislikes his general-election choices. See, e.g., Jones v. Governor of Fla., 975 F.3d 1016, 1030 (11th Cir. 2020). And Terry addressed actual vote denial—not a plaintiff’s complaint that the primary he wishes to vote in might be “outcome-determinative.” See Terry v. Adams, 345 U.S. 461, 469–70, 73 S. Ct. 809, 813–14 (“The effect of the whole procedure . . . is to do precisely that which the Fifteenth Amend- ment forbids—strip [Black voters] of every vestige of influence in selecting the officials who control the local county matters that in- timately touch the daily lives of citizens.”). USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 98 of 112

14 TJOFLAT, J., Dissenting in Part 22-14031

The Majority is not applying precedent; it is manufacturing it. It plucks a clause from one case, a fragment from another, and stitches them together to conjure up a broad category of constitu- tional injury whenever a voter faces a disadvantage compared to others—while ignoring the context in which that language was used. But constitutional injuries require actual precedent, and here, the decisions the Majority invokes do not support its argument. I turn to a few of those next. * * * First, Osburn v. Cox, 369 F.3d 1283 (11th Cir. 2004). The Ma- jority claims that the voters there had standing because their “claims plainly concerned disadvantage[s] to the voters as individ- uals.” Maj. Op. at 21. (citation and internal quotation marks omit- ted). According to the Majority, To state claims for relief, we explained, the voters had to show that, under the open primary system, “they lack[ed] the equal opportunity to participate in the political process,” Osburn, 369 F.3d at 1288 (Four- teenth Amendment) (emphasis added), and that “they ‘[had] less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice,’” id. (emphasis added) (quoting 52 U.S.C. § 10301(b)). Maj. Op. at 21–22. The Majority is correct that the phrases it quotes appeared in Osburn. But its assertion that “Polelle asserts a claim here that’s analogous to the Osburn plaintiffs’ Fourteenth Amend- ment, Fifteenth Amendment, and [Voting Rights Act (VRA)] USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 99 of 112

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claims: that the closed primary limits the effectiveness of his vote,” Maj. Op. at 22, is flat out wrong. It is wrong because the portion of Osburn that the Majority quotes was discussing the VRA. And not just any part of the VRA, but specifically the standard for proving a Section 2 violation, which is limited to claims of racial discrimination in voting. Here is what Osburn actually said: A violation of Section 2 is established only if, based on the totality of the circumstances, minority plaintiffs can prove that they “have less opportunity than other members of the electorate to participate in the politi- cal process and to elect representatives of their choice.” 42 U.S.C. § 1973(b); see also Chisom v. Roe- mer, 501 U.S. 380, 397, 111 S.Ct. 2354, 2365, 115 L.Ed.2d 348 (1991)(“the inability to elect representa- tives of their choice is not sufficient to establish a [Sec- tion 2] violation unless, under the totality of the cir- cumstances, it can also be said that the members of the protected class have less opportunity to partici- pate in the political process”). Osburn, 369 F.3d at 1289. Nowhere in that passage—nowhere in Osburn—does this Court say that dissatisfaction with a state’s pri- mary structure is a constitutional injury. The Osburn plaintiffs al- leged racial discrimination under the VRA. Polelle does not. He does not claim he is part of a protected class, he does not allege racial discrimination, and he does not bring a VRA claim. The Majority offers no response. Instead, it seizes on a phrase that refers to minority plaintiffs under the VRA, strips it of USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 100 of 112

16 TJOFLAT, J., Dissenting in Part 22-14031

its statutory context, and wields it as if it applied to every voter who dislikes the electoral process. But the VRA is not some free-floating guarantee that every voter’s ballot is maximally “effective.” It is an anti-discrimination provision. See 52 U.S.C. § 10301(a) (“No voting qualification or prerequisite to voting . . . shall be imposed . . . in a manner which results in a denial or abridgement of the right . . . to vote on account of race or color.” (emphasis added)); see also Michael T. Morley, Voting Rights: Litigating Materiality Under the Civil Rights Act, 76 Fla. L. Rev. 1807, 1809 (2024) (explaining that the VRA “pro- hibit[s] not only unconstitutional racial discrimination but also many other elections procedures and requirements with racially disparate impacts” (emphasis added)). Second, Jacobson v. Florida Secretary of State, 974 F.3d 1236 (11th Cir. 2020). The Jacobson plaintiffs challenged the Florida law setting forth the rules for determining candidates’ order on ballots. Id. at 1241. “The statute requires the candidate of the party that won the last gubernatorial election to appear first beneath each of- fice listed on the ballot, with the candidate of the second-place party appearing second.” Id. at 1242 (citing Fla. Stat. § 101.151(3)(a)). The plaintiffs argued that this arrangement con- ferred an unfair advantage to candidates and diluted the weight of their votes. Id. We rejected that theory, holding that a voter’s right is to cast a ballot and have it counted—not to have the electoral process maximize the chances of his preferred candidate winning. Id. at 1246–47. USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 101 of 112

22-14031 TJOFLAT, J., Dissenting in Part 17

The Majority, however, invokes Jacobson to claim that Polelle has alleged an injury—namely “that Florida’s closed-pri- mary statute limits his ‘ability to vote’ in certain primary elections and ensures that his ‘vote [is not] given the same weight as any other.’” Maj. Op. at 11 (quoting Jacobson, 974 F.3d at 1246). That is misleading. Jacobson had nothing to do with primary elections. The statement the Majority lifts from Jacobson referred to a voter’s “in- terest in [his] ability to vote and in [his] vote being given the same weight as any other” in a general election. See 974 F.3d at 1246. Yet the Majority repeats this misreading—twice more—each time eras- ing the crucial distinction between a general election and a pri- mary. Maj. Op. at 14, 18. That distinction matters. A general election selects officehold- ers from among competing candidates within a defined electorate. A primary, by contrast, serves an entirely different function: it al- lows party members to select candidates who best represent their shared political beliefs. See Julia E. Guttman, Note, Primary Elections and the Collective Right of Freedom of Association, 94 Yale L.J. 117, 125– 26 (1984) [hereinafter Guttman, Primary Elections]. The Majority ig- nores this basic reality. Instead, it treats Jacobson as endorsing a broad rule that any restriction affecting a voter’s “interest in [his] ability to vote” is constitutionally suspect, regardless of the election at issue. But Jacobson says no such thing—nor does any case the Majority cites. And finally, Nader v. Schaffer, 417 F. Supp. 837 (D. Conn. 1976), aff’d, 429 U.S. 989, 97 S. Ct. 516 (1976) (mem.). There, a USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 102 of 112

18 TJOFLAT, J., Dissenting in Part 22-14031

three-judge district court upheld a closed-primary system against a constitutional challenge by voters. Id. at 850. The Majority leans on Nader as if it were a definitive ruling on standing. It was not. In the Supreme Court, Nader was a memorandum decision—affirmed without a written decision—so it is “of extraordinarily flimsy prec- edential value.” O’Hair v. White, 675 F.2d 680, 697 (5th Cir. 1982) (en banc) (Tjoflat, J., concurring in part and dissenting in part). More importantly, the Supreme Court’s silent affirmance said nothing about standing, leaving the issue open. In fact, the Su- preme Court has explicitly cautioned against relying on cases like Nader as a source of standing precedent. See Allen v. Wright, 468 U.S. 737, 764, 104 S. Ct. 3315, 3331 (1984) (explaining that a prior deci- sion had “little weight as a precedent on the law of standing” be- cause it “was merely a summary affirmance” and therefore “could hardly establish principles contrary to those set out in opinion is- sued after full briefing and argument”).5

5 The Majority mischaracterizes my objection to its reliance on Nader. My

point is simple: Nader carries little, if any, weight as a precedent on the law of standing. Yet the Majority insists that Nader is “canonical” and “frequently cited” by the Supreme Court in “this area of the law.” Maj. Op. at 33 n.14. But what area is that, exactly? Certainly not standing. The Majority does not, be- cause it cannot, refute this. Instead, it pivots to the observation that Nader was decided after Schlesinger and Warth, as if proximity in time supplies an implied holding. But precedent is not absorbed by osmosis. What matters is what a case says, not when it was decided. And Nader—a summary affirmance on the merits—says nothing at all about an injury in fact. That is why the Supreme Court warns against giving such decisions undue weight in standing law. See Allen 468 U.S. at 764, 104 S. Ct. at 3331. The Majority waves that concern away USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 103 of 112

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Regardless, standing jurisprudence has evolved considerably since Nader, particularly in requiring a concrete and particularized injury. The Majority’s attempt to extract an Article III holding from nothing more than silence is not how precedent works. Had the three-judge panel in Nader applied modern standing doctrine, it would likely have agreed with me. The court cautioned against transforming policy preferences into constitutional claims: The presently popular course of raising a federal con- stitutional question and seeking a change in the law by judicial fiat, is quicker, more academically attrac- tive and perhaps more thorough. But such action tends in itself to work in derogation of the separation of powers and our democratic system of government. The courts should not use this power for the purpose of exercising some amorphous, general supervision of the operations of government, but only to redress vi- olations of basic human rights to which federal con- stitutional protections have been extended or to cor- rect governmental action which otherwise conflicts with express provisions of the Constitution. The plaintiffs’ case does not fall within these designations. Nader, 417 F. Supp. at 850 (citations and internal quotation marks omitted).

without a meaningful response. If Nader is a standing precedent, then so is every summary affirmance in history. But the Supreme Court tells us other- wise. USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 104 of 112

20 TJOFLAT, J., Dissenting in Part 22-14031

That reasoning applies even more forcefully today. Polelle’s claim is not about a deprivation of voting rights, but a preference for a different electoral system—exactly the kind of policy dispute that Article III does not entertain. 6 B. Redressability Even if Polelle pleaded a cognizable injury (he has not), he must still show that a court order could redress it. He cannot.

6 The Majority conjures a hypothetical statute to argue that my posi- tion—that Polelle lacks an injury in fact—would deny standing even where Congress explicitly created a statutory cause of action. Maj. Op. at 30 n.12. The hypothetical assumes that if Congress passed a law barring “outcome-de- terminative primaries that exclude voters by party affiliation” and granted in- dividuals the right to enforce that rule in court, then plaintiffs in such cases would necessarily have standing. But that assumption mistakes a statutory vi- olation for a constitutional injury. A statutory right of action does not auto- matically confer Article III standing. That is what TransUnion held: Congress “may not simply enact an injury into existence, using its lawmaking power to transform something that is not remotely harmful into something that is.” TransUnion 594 U.S. at 426, 141 S. Ct. at 2205. To establish standing, a plaintiff must still demonstrate a concrete harm akin to one traditionally recog- nized at common law. Id. at 425, 141 S. Ct. at 2204. The Majority’s hypothet- ical does not answer the critical question: what is the concrete harm? Hypotheticals aside, the problem is not that a voter challenging an ex- clusionary election process could never have standing. It is that Polelle does not have standing in this case because he has not suffered a legally cognizable in- jury. USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 105 of 112

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1. Polelle’s Redressability Theories Polelle has identified no remedy that would redress his pur- ported injury. Start with what he asked for. Polelle’s complaint sought three forms of relief: (1) a declaration that Florida’s closed-primary law (Fla. Stat. § 101.021) and its universal-primary exception (Fla. Const. art. VI, § 5(b)) violate the First and Fourteenth Amendments, both facially and as applied to him; (2) a permanent injunction prohibiting, among others, Su- pervisor Turner from enforcing the closed-primary law, the universal-primary exception, and “any other statute, law, regulation, or custom which prohibits [him] from voting in future Florida election primaries solely because of his choice to remain” an NPA voter; and (3) “[a]ny other relief th[e] Court deems just and proper.” The first request—a declaratory judgment—gets Polelle no- where. The Supreme Court has made clear that a mere declaration of a law’s unconstitutionality does not itself confer jurisdiction.7 See

7 The Supreme Court has recognized that a declaratory judgment alone may

redress an injury in limited circumstances. Namely, a declaratory judgment can satisfy redressability by establishing a “preclusive effect on a traditional lawsuit that is imminent.” Brackeen, 599 U.S. at 293, 143 S. Ct. at 1639 (citation and internal quotation marks omitted). The paradigmatic example of a per- missible declaratory judgment is that which a court issues to resolve a dispute between an insurer and insured over the existence or extent of coverage. See, e.g., Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 243–44, 57 S. Ct. 461, 465 (1937). USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 106 of 112

22 TJOFLAT, J., Dissenting in Part 22-14031

California v. Texas, 593 U.S. 659, 672–73, 141 S. Ct. 2104, 2115–16 (2021). The Majority does not seriously dispute this—nor could it. That leaves only Polelle’s request for an injunction. If an injunction will not redress his alleged injury, Polelle has no standing to sue. But what kind of injunction does Polelle want? That de- pends on when you ask him. 8 At first, Polelle sought an order bar- ring Supervisor Turner from enforcing Florida’s closed-primary law. He claimed this would let NPA voters join primaries once lim- ited to party members, effectively turning Florida’s closed

8 Polelle has recharacterized the relief he seeks throughout litigation. That he should not do. Courts adjudicate concrete disputes; they do not chase a moving target. Standing is assessed at the outset and cannot be manufac- tured midstream by retrofitting the relief sought to patch up jurisdictional de- fects. See Lujan, 504 U.S. at 566, 112 S. Ct. at 2139 (“Standing is not an ingenious academic exercise.” (citation and internal quotation marks omitted)). Were it otherwise, standing doctrine would collapse into a game of advocacy and its gatekeeping function reduced to a matter of strategic pleading. And a plaintiff who keeps reworking the relief sought only underscores that the supposed injury was never clearly defined—raising serious doubt about whether there was ever a justiciable controversy at all. The Majority, for its part, “fail[s] to see how a position Polelle has pressed since his response to Defendants’ motions to dismiss . . . is a mid-liti- gation switch.” Maj. Op. at 46. I fail to see how the Majority can call an alter- native remedy raised for the first time in response to a motion to dismiss any- thing but a mid-litigation switch. By definition, a switch of remedy in response to a motion to dismiss is a mid-litigation switch. See Fed. R. Civ. P. 7(a) (defin- ing pleadings). USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 107 of 112

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primaries into open primaries. 9 But once Polelle realized that such an order might violate political parties’ First Amendment rights, he shifted course—and for good reason. The Supreme Court has rec- ognized that political parties have a right to control their nomina- tions. See Jones, 530 U.S. at 574–75, 120 S. Ct. at 2408; see also Demo- cratic Party of U.S. v. Wisconsin ex rel. La Follette, 450 U.S. 107, 121– 22, 101 S. Ct. 1010, 1019 (1981); Guttman, Primary Elections, at 125– 26. A state’s interest in protecting the associational rights of politi- cal parties justifies closed primaries. Jones, 530 U.S. at 574–75, 120 S. Ct. at 2408. It follows that if an injunction effectively forces parties to associate with non-members, it may violate the parties’ First Amendment rights. 10

9 There are three types of primaries: (1) closed, where only party members

may vote; (2) open, where any registered voter may vote in one party’s pri- mary without affiliating; and (3) blanket, where voters can choose candidates across parties, like in a general election. Guttman, Primary Elections, at 117 n2 10 True, as the Majority notes, Jones left unresolved whether open primaries

are unconstitutional. Maj. Op. at 24, 40; Jones, 530 U.S. at 577 n.8, 120 S. Ct. at 2410 n.8 (“This case does not require us to determine the constitutionality of open primaries.”). But that does not mean we cannot answer the question, especially given Jones’s strong recognition of political parties’ associational rights. Said differently, that Jones did not decide the issue does not mean the Supreme Court has foreclosed the conclusion that open primaries are uncon- stitutional—if anything, Jones points in that direction. And the Majority does not refute this; it simply dodges the question. Maj. Op. at 40–41. Instead, the Majority says that I—as the dissent—must show this theory’s unavailability. Maj. Op. at 40 n.15 (“[The Dissent] must address the extent of the burden is- suing Polelle a partisan ballot would place on a political party’s First Amend- ment rights before determining that Polelle’s injury is not redressable in that USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 108 of 112

24 TJOFLAT, J., Dissenting in Part 22-14031

That matters. A court cannot redress an alleged injury by granting relief that is itself unlawful. A plaintiff must show that the relief he seeks is legally available. See Uzuegbunam, 592 U.S. at 292, 141 S. Ct. at 801–02. If an injunction would violate political parties’ associational rights, it cannot redress Polelle’s purported injury. Realizing this, Polelle tried another tack: if courts cannot not force open primaries, they should scrap Florida’s entire primary system instead. That way, he speculates, the Florida legisla- ture might create a new scheme that allows him to vote in a pri- mary. 11 The problem is that Polelle’s theory of redressability imper- missibly rests on sheer speculation: that striking down Florida’s closed primary law might cause the Legislature to enact a new

way.”) That is wrong. Polelle, as“[t]he party invoking federal jurisdiction,” is the one who “bears the burden of establishing” redressability. Lujan, 504 U.S. at 561, 112 S. Ct. at 2136. Having all but abandoned that theory, Polelle has failed to carry that burden. 11 In the alternative, Polelle argues he has adequately pleaded municipal tax-

payer standing. The problem for Polelle is that he failed to adequately plead any standing elements sufficient to invoke the doctrine. For example, he did not adequately plead that county funds were expended on the allegedly un- constitutional aspect of the primary elections. See Pelphrey v. Cobb Cnty., 547 F.3d 1263, 1279–82 (11th Cir. 2008) (stating that the municipal taxpayer stand- ing doctrine requires a plaintiff to show that public funds were used in an al- legedly unlawful manner that caused him direct harm). So while Polelle al- leged that he paid ad valorem property tax, he did not show how holding the closed primary elections put him “out of pocket” sufficient to confer standing. See Doremus v. Bd. of Ed. of Hawthorne, 342 U.S. 429, 433, 72 S. Ct. 394, 397 (1952). USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 109 of 112

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primary regime that might give Polelle the right to vote in the pri- mary elections that he wants to. But precedent casts doubt on re- dressability theories that depend on “unfettered choices made by independent actors not before the courts.” See Lujan, 504 U.S. at 562, 112 S. Ct. at 2137. Redressability requires a judicial ruling to remedy the plaintiff’s injury—it cannot rest on speculation about how third parties might respond. See Brackeen, 599 U.S. at 294, 143 S. Ct. at 1639–40; see also Lujan, 504 U.S. at 561, 112 S. Ct. at 2136 (“[I]t must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.’” (citation omit- ted)). Yet Polelle’s reasoning hinges on just that: a “speculative chain of possibilities,” Clapper, 568 U.S. at 414, 133 S. Ct. at 1150, in which enjoining a county election official might trigger legislative action, which then might result in Polelle getting to vote in a pri- mary in a way that makes his vote “effective.” That logic flouts Su- preme Court and Eleventh Circuit precedent. Because Polelle has not sought any relief that would redress his alleged injury, he lacks standing. That should be the end of it. 2. The Majority’s Redressability Theories Rather than reject Polelle’s flawed redressability theories, the Majority forges ahead, crafting an alternative theory of redress- ability that is as novel as it is wrong. First, the Majority claims that Polelle initially requested “an injunction requiring the Supervisor to issue and accept Polelle’s partisan ballot.” Maj. Op. at 40. That is false. Polelle’s complaint asked the District Court to bar enforcement of the closed primary USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 110 of 112

26 TJOFLAT, J., Dissenting in Part 22-14031

law—not to compel Supervisor Turner to hand him a ballot. In other words, Polelle sought an injunction restraining, not compel- ling Supervisor Turner. At no point did Polelle seek the affirmative injunction the Majority imagines. Even if he had, the Majority concedes that such relief may be unconstitutional. Id. (“[W]e may not be able to order the Super- visor to include Polelle in a partisan primary election if doing so would severely burden political parties’ associational rights.”). Yet rather than resolve that issue, it pivots to another: that Polelle now seeks an injunction “ordering Supervisor Turner to conduct an al- ternative primary scheme,” which theoretically could include a non-partisan, or “blanket,” primary.12 Maj. Op. at 40 n.15, 43. But Polelle never requested that either. In response to the defendants motions to dismiss, Polelle emphasized that “[n]owhere in his Complaint does Plaintiff suggest the adoption of a ‘blanket pri- mary’ in which voters belonging to an opposing party are allowed to participate in another party’s primary.” Even if Polelle had sought such an order, the Majority iden- tifies no authority—constitutional, statutory, or otherwise—em- powering a federal court to command a county election supervisor

12 This is not the only time the Majority has fluctuated in describing Polelle’s

alternative request for relief. At one point, the Majority asserts that Polelle “requests in the alternative that we ‘command[]’ Supervisor Turner ‘to do nothing more than refrain from violating federal law’ by not conducting par- tisan primaries as Florida law otherwise instructs him to do.” How is an in- junction barring Supervisor Turner from conducting partisan primaries the same as an injunction ordering him to create and run a new primary system? USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 111 of 112

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to invent an election regime from scratch. See id.. And for good reason—because, to my knowledge, none exists. Indeed, Florida law does not empower Supervisor Turner to reshape the state’s primary system. That authority belongs to the legislature. See Fla. Const. art. VI, § 1 (“Registration and elections shall . . . be regulated by law.”); Grapeland Heights Civic Ass’n v. City of Miami, 267 So.2d 321, 324 (Fla. 1972) (“‘[L]aw’ in our constitution means an enactment by the State Legislature . . . not by a city Com- mission or any other political body.”); Orange County v. Singh, 268 So.3d 668, 670 (Fla. 2019) (“The Legislature regulates elections through the Florida Election Code.” (emphasis added)). Supervisor Turner’s role is limited to administering election in Sarasota County as prescribed by Florida law. See § 98.015(10)–(11). None of the powers delegated to Supervisor Turner include deciding the structure of primary elections. In other words, Florida’s primary structure is not subject to local discretion—it is dictated by the state legislature. IV. Conclusion As judges of an inferior federal court, “we remain bound by precedents and must respect both the limits of our jurisdiction and principles of party presentation.” William H. Pryor, Jr., Modesty in Originalism, 77 Fla. L. Rev. 345, 355 (2025). The Constitution tasks federal courts with deciding real cases—not rewriting election laws. Under binding precedent, Polelle has suffered no legally cog- nizable injury, and no court order could redress his complaint. The Majority sidesteps these limits by rebranding political USCA11 Case: 22-14031 Document: 54-1 Date Filed: 03/11/2025 Page: 112 of 112

28 TJOFLAT, J., Dissenting in Part 22-14031

dissatisfaction as a justiciable harm and a broad injunction as likely redress. That is not Article III standing—it is judicial overreach. Because the Majority takes a different view, I respectfully dissent from its conclusion that Polelle has standing to sue Super- visor Turner. 13

13 Because courts have no jurisdiction to reach the merits when a plaintiff lacks

standing, I take no position on the Majority’s merits analysis. See Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514 (1868) (“Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of an- nouncing the fact and dismissing the cause.”).