The fate of thousands of potential voters blocked from registering when the state’s online system went down for several hours before Monday’s 11:59 p.m. deadline is now in the hands of a federal judge.
After a sometimes heated two-hour hearing Thursday, Chief U.S. District Judge Mark Walker said he would make a decision at some point later in the day whether the state had to extend the deadline.
“I will try to get an order out quickly as I can today,” Walker said, noting that he had kept a jury in another trial in Gainesville on hold for 90 minutes.
Walker also acknowledged the time constraints, with the election mere weeks away. He anticipated that whatever his order says, it will be appealed by one of the sides.
A coalition of voter registration groups, as well as the Dream Defenders, New Florida Majority, Florida Immigrant Coalition, Organize Florida and two would-be voters who said they were prevented from registering before Monday’s deadline, sued the state. They claim thousands of voters were disenfranchised when the online system crashed.
In their lawsuit filed Tuesday against Gov. Ron DeSantis and Secretary of State Laurel Lee, the state’s chief elections officer, the plaintiffs also said a decision announced around noon Tuesday to extend the deadline to 7 p.m. Tuesday was not enough time to capture all the people who tried to register but couldn’t.
They’ve asked for an additional extension of the voter registration deadline.
Toward the beginning of the hearing, Walker dismissed DeSantis as a defendant, after a short discussion with his attorney to determine that DeSantis did not have the authority to extend the deadline in this context. Lee said she had consulted with DeSantis before declaring Tuesday’s extension.
“Secretary Lee could have consulted tarot cards, but that doesn’t mean you can sue the tarot cards,” said Walker, an appointee of former President Barack Obama, in the hearing.
According to numbers provided by Deputy Chief information Officer Scott Maynor, only 19% more people registered on the day of the deadline than had registered the day before – far short of the 140% uptick seen in 2018. Extending the registration period to 7 p.m. added an additional 50,000 voters, Maynor said.
“It’s fair to say there was an impact because of system failure,” said attorney Mohammed Jazil, representing Lee. “But we showed we addressed that.”
That total still falls short of the expected increase, Walker said: “I realize we abandoned science, but have we also shown that math is disfavored?” he asked. “Over 20,000 people lost out on their chance to register online because of this snafu.”
Stuart Naifeh, representing the plaintiffs, said the number of new voters don’t reflect all the people who tried and failed to register Monday. He also questioned whether the people who were blocked from registering online were notified of the extension.
Walker responded, “The fact that far fewer registered than could have would suggest that ‘Houston we have a problem,’ notwithstanding corrective action.”
The state argued that extending the deadline further would place a burden on local supervisors of elections, submitting affidavits from Leon County Supervisor of Elections Mark Earley, who is currently vice president of the state supervisors association, and Okaloosa County Supervisor of Elections Paul Lux.
In his experience, Earley said, another extension of the voter registration deadline would only add more confusion and reinforce the mistrust voters already have surrounding this election.
“Florida hasn’t managed to count votes properly when there wasn’t a pandemic,” Walker said. “The fact is, there is a pandemic. The fact is, huge percentages of people are voting by mail. The fact is, there will be huge lines. Don’t I have to consider the integrity of the entire voting process of Florida?”
Supervisors have 13 days to process applications after they are submitted. Even though the deadline was 11:59 p.m., they are still required to take applications postmarked Oct. 5. They also continue to get applications after the deadline from the Department of Highway Safety and Motor Vehicles and public assistance agencies.
Walker questioned Jazil several times about what authority the secretary had to extend the deadline beyond what state law says, and order county supervisors of elections to ignore the law. After several minutes going back and forth without getting a satisfactory answer, Walker said, “Somebody has to have the legal authority to change it. You are joining in a circular firing squad to say we’re all meeting and talking about it.
“The fact remains we have a mandate set by Florida law and somebody changed it. Did it happen organically or did it happen pursuant to her directive?
Jazil also challenged the legal standing of the voter organizations to sue the state, especially after two voters named in the original complaint voluntarily dismissed themselves after it turned out they made false statements about their voter registration status.
“He hasn’t identified a single member of a single organization affected by the extension of the deadline,” Jazil said. “You need an actual member for standing, and none is listed… That is fatal.”
Also, Jazil said, the organizations failed to provide specific details about projects that were placed on hold because of the system problems. “We have no specifics of what is being done differently,” he said. “I do not possibly understand how they have standing in light of this.”
Naifeh said their mission is to register voters, which was effectively stopped when the system went down.
“They were frustrated by the failure of the system and they continue to have that mission frustrated and injured,” he said.
For example, one organization had tried to help an ex-felon register after he finally paid off his fines on the day of the deadline. In other cases, people who only found out on Monday that their registration had lapsed couldn’t do anything about it until they got off work.
The hearing also focused on the balancing test between the burdens a state imposes with voting restrictions and the state’s asserted benefits. On the one hand, there are disenfranchised voters who will be barred from voting in the Nov. 3 general election, Walker said.
On the other, there is a potential burden on the state and county elections officials if the deadline is extended as described by Earley’s “thoughtful affidavit describing potential confusion and problems….”
Jazil said the registration system’s failure was a minor burden given that the state responded by extending the registration period. Walker disagreed.
“If the system is down for six hours, and 50-60,000 people don’t get to register, I don’t understand for the life of me how that is minor,” the judge said. “You knew based on past years that thousands were going to use this device and it failed for hours.”
That suggests the problem was more than an “oopsie,” Walker said.
On the other hand, looking at the requested cure could add thousands of provisional ballots onto an already overwhelmed election system and a chaotic election, Walker said.
“If reopened this for several hours, not hundreds but tens of thousands of people could apply. If I allow it to reopen for several hours, we’re still looking at a couple days from now,” he said. “Isn’t that a significant burden or harm when talking about balancing equity of public interest?”
Naifeh said his clients weren’t asking for the state to change its election rules, but to honor the ones they created: “These were not people who missed the deadline. These are people that tried to submit their applications within the deadline.”
This is a developing story. Check back for updates.
Contact Jeff Schweers at firstname.lastname@example.org and follow him on Twitter @jeffschweers.
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