By Nathan Hale

Law360 (May 28, 2020, 8:43 PM EDT) -- The Florida Elections Canvassing Commission has asked a Florida federal judge to release it from a lawsuit looking to force the state to modify elections regulations to address health risks posed by the COVID-19 pandemic, saying it lacks authority over the issues that have been raised.

The commission, which consists of the governor and two Cabinet members of his choice, argued in a motion to dismiss Wednesday that it is an improper party to a pair of consolidated suits filed by a group of voters and nonprofits.

It asserted that because its responsibilities do not include enforcing the regulations at issue, it has sovereign immunity against the suit under the 11th Amendment. It also argued that the plaintiffs lack standing to sue it because they have not shown that it caused their alleged injuries and it cannot cure them.

"The Canvassing Commission, whose limited authority is delegated by the Florida Legislature, is not responsible for the enforcement of any aspect of any of the challenged provisions," the motion said.

Specifically, the commission — which meets after primary and general elections to certify election returns delivered to the state by its 67 counties — said it has no authority over requirements regarding voters' ability to obtain vote-by-mail ballots and whether those requests must be made on election day or whether they must be accompanied by affidavits.

Vote-by-mail ballot request requirements fall entirely within the purview of each county's supervisor of elections, the commission said.

Similarly, the commission said the responsibility for enforcing deadlines for voters to cure or fix rejected vote-by-mail ballots belongs to each county's elections supervisor and county canvassing board.

While the Legislature has granted the commission limited power to create rules for "voting methods" for overseas voters in case of emergency, this does not extend to voters who do not live overseas, the commission said.

And the commission said its power to "determine the deadline" for counties' post-election delivery of returns that get delayed because of an emergency does not allow it to modify deadlines that apply to voters on or in advance of election day.

In an interview Thursday, Stuart Naifeh of Demos, who is representing the plaintiffs, said they believe the state commission is necessary to the case "because of the things that they do have control over, which they acknowledge." He also said they intend to file a response opposing the arguments in the motion.

"We think they are wrong about the issues that they have raised," he said. "We believe that they are properly in this case."

The plaintiffs, which include the groups Dream Defenders, Organize Florida Education Fund and New Florida Majority Education Fund, plus individual voters led by named plaintiff Acacia Williams, originally filed suit March 16, one day before the state's presidential primary election.

Citing President Donald Trump's March 13 declaration of a national emergency due to the coronavirus pandemic, they asked U.S. District Judge Robert L. Hinkle of the Northern District of Florida to force the state government to extend its vote-by-mail period for the presidential primary to accommodate voters impacted by or facing a health risk because of the health crisis.

Judge Hinkle denied the voters' bid for a temporary restraining order March 17, saying that with the primary already under way, that would be adverse to public interest.

The voters have since expanded the scope of their suit, asking the court in a May 8 amended complaint to order the state to take emergency actions for any election affected by the COVID-19 pandemic, including an Aug. 18 primary and the Nov. 3 general election.

"There are two more elections scheduled for 2020, neither of which will be open, fair, secure, and accessible if Florida's voting system is not adjusted to meet the needs of this unprecedented emergency," they said in the second amended complaint.

Among the requests in the latest version of the complaint are that the court order the state to conduct outreach to offer voter registration opportunities; ensure the online voter registration system can accommodate an increased number of applications; modify vote-by-mail procedures, including allowing voters to have ballots sent to alternate addresses and accepting vote-by-mail ballots as long as they are postmarked or dated by election day and received within 10 days of election day; and taking steps to ensure safe and accessible in-person voting.

The second amended complaint also individually names all of the county election supervisors and county canvassing boards, in addition to existing defendants Gov. Ron DeSantis, Secretary of State Laurel M. Lee and the state canvassing commission.

"These officials, in particular the governor, they have for good reason asked people to stay at home during the pandemic, and they need to make it possible for people to continue to stay home and to vote safely as long as the pandemic lasts," Naifeh said.

A representative for the Florida Attorney General's Office, which is representing the commission, did not immediately respond to a request for comment late Thursday.

The voters are represented by Demos, Advancement Project National Office, Arnold & Porter and LatinoJustice PRLDEF.

The Florida Elections Canvassing Commission is represented by Chief Assistant Attorney General Elizabeth Teegen and Senior Assistant Attorney General Timothy L. Newhall of the Office of the Attorney General.

The case is Williams et al. v. Desantis et al., case number 1:20-cv-00067, in the U.S. District Court for the Northern District of Florida.

--Additional reporting by Dave Simpson. Editing by Abbie Sarfo.

For a reprint of this article, please contact reprints@law360.com.