Judge refuses to extend voter registration deadline

October 9, 2020

Dara Kam

TALLAHASSEE --- Saying “this court cannot remedy what the state broke,” a federal judge on Friday reluctantly refused to give Floridians more time to register to vote after a state online system crashed in the hours before Monday’s deadline to sign up for the November presidential election.

Secretary of State Laurel Lee extended the deadline until 7 p.m. Tuesday, after tens of thousands of users were unable to submit voter-registration applications through her agency’s online system in the hours leading up to the 11:59 p.m. Monday deadline.

Several groups involved in voter-registration efforts quickly filed a legal challenge, alleging Lee failed to provide adequate notice of the hours-long extension and that it was inadequate. Plaintiffs, including Dream Defenders, New Florida Majority and the Florida Immigrant Coalition, asked Chief U.S. District Judge Mark Walker to extend the registration deadline for two days after he issued an order.

But in a sharply worded ruling early Friday morning, Walker said the potential mayhem another extension might inject into an already tumultuous election cycle outweighed the damage done to prospective voters.

“This is an incredibly close call, but Florida’s interest in preventing chaos in its already precarious --- and perennially chaotic --- election outweighs the substantial burden imposed on the right to vote,” the judge wrote.

Walker, an acerbic jurist who frequently presides over elections-related lawsuits and has often ruled against the state, launched the 29-page decision with a sarcastic swipe at Florida’s continual elections snafus.

“Notwithstanding the fact that cinemas across the country remain closed, somehow, I feel like I’ve seen this movie before. Just shy of a month from election day, with the earliest mail-in ballots beginning to be counted, Florida has done it again,” he chided.

Walker accused Lee of implementing “a half measure” to address this week’s problems with the state website, which is used to submit voter registration applications that are routed to county supervisors of elections.

He noted that “the website crash and next-day scramble to organize and effectively reach out to potential voters frustrated each organization’s mission to register voters.”

Lawyers for Lee and Gov. Ron DeSantis argued that U.S. Supreme Court rulings establishing what is known as the “Purcell” doctrine advise courts to let states manage their own elections, especially when elections are looming.

Walker acknowledged that the doctrine “requires this court to take into account critical considerations such as voter confusion that may result from a judicial order,” but he emphasized that Purcell “is not a magic wand” prohibiting judges from enjoining laws on the eve of an election.

Still, with the Nov. 3 election less than a month away, Walker wrote, “this court gives great weight to the concerns highlighted” in the Purcell doctrine.

“When an election law imposes only reasonable, nondiscriminatory restrictions upon the constitutional rights of voters, the state’s important regulatory interests are generally sufficient to justify the restrictions,” Walker wrote. “This is not a litmus test, rather the court must balance these factors and make hard judgments.”

The injury to potential voters was twofold, Walker wrote, because some people could not submit online voter registration applications prior to Monday’s deadline and because Lee did not notify the public about the extension until around noon on Tuesday, the same day as the new 7 p.m. deadline.

“Still, the burden here is not a total deprivation of the right to vote, but a limitation on the period in which potential voters can register. Indeed, during the time the website was down, Floridians could still register through other avenues --- including in person and by mail,” Walker said.

The situation would be different if Lee had not issued the extension, the chief judge added, which “unquestionably mitigated” the burden on the right to vote.

During a hearing Thursday, Walker estimated that, even with Tuesday’s extension, more than 21,000 fewer Floridians applied to vote on the online system than should have, when compared to registrations in the run-up to the deadline in 2018. During Thursday’s extension, about 50,000 new voters submitted registrations, elections officials said in court documents.

“In sum, that potentially thousands of Floridians may not have been able to register because of the state’s voter registration website’s malfunction is certainly a substantial burden limiting the right to vote,” he found.

But the state’s interest in conducting an efficient and orderly election outweighs that burden, Walker concluded.

Elections officials testified that a surge of voter registrations after an extension of the deadline could result in voters showing up at voting precincts before their names appear on elections supervisors’ voting rolls. Those voters would have to cast provisional ballots, which could slow down the process for other voters. Provisional ballots also take longer to tabulate by elections supervisors, who are already overwhelmed by the COVID-19 pandemic, an influx of mail-in ballot requests and heightened mistrust of the outcome of the contest between President Donald Trump and Democratic presidential nominee Joe Biden.

“(T)he consequences of extending the deadline will reverberate across the entire elections process --- forcing supervisors to divert resources to answering calls and processing new registrations --- thereby hampering other important tasks, such as processing vote-by-mail requests and ballots, and administering early voting,” Walker found. “These are indeed weighty concerns.”

The chief judge pointed out there is already “great uncertainty around this election,” according to a declaration by Leon County Supervisor of Elections Mark Earley submitted by the state.

“This uncertainty is compounded by an unprecedented pandemic; one that has upended every aspect of American life. Thus, this court finds that defendant’s proffered justifications are entitled to great weight,” Walker wrote. “On the one hand, the burden to vote is great; on the other, Defendant Lee has identified weighty justifications for refusing to reopen the registration window.”

But Walker also criticized Lee for elections officials’ affidavits he said “paint a disturbing picture of overworked elections staff, incomplete voter rolls, and election-day mayhem.”

Walker said his ruling “in no way means to discount the grave burden the state has placed on aspiring voters.”

The chief judge wound up his ruling by taking Lee to task.

“This case is about how a state failed its citizens. In this case, potential voters attempted to perform their civic duty, to exercise their fundamental right, only to be thwarted, once again, by a state that seemingly is never prepared for an election,” Walker wrote. “This is a case about failure on the part of a civil servant, whose responsibility is to run an election system, that will cost thousands of potential voters their fundamental right to vote in the upcoming election.”