By Carolina Bolado

Law360 (October 9, 2020, 8:56 AM EDT) -- A Florida federal judge on Friday chastised the state for its "half measure" attempt at a remedy after the state's online voter registration crashed just before the deadline for November's election, but wouldn't extend the registration deadline for fear of causing confusion and chaos in an election already made difficult by the coronavirus pandemic.

U.S. District Judge Mark Walker said Secretary of State Laurel Lee's corrective action — which extended the deadline to Oct. 6 at 7 p.m. after the system crashed late on Oct. 5 — was inadequate because it was not announced until noon on Oct. 6 and gave potential voters less than seven hours to become aware of the news and fill out voter registration applications.

"This case is about how a state failed its citizens," Judge Walker said. "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. This case is 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."

But despite this, the judge said that court "cannot remedy what the state broke" because the state's interest in preventing chaos in the election outweighs this burden imposed on the right to vote.

The order, issued in the early morning hours on Friday less than a day after Judge Walker heard from the parties on the subject, denies an injunction requested by activist groups that said their efforts to register voters were frustrated by the Florida site's slowdown and the slapdash remedy that gave them little time to bring back volunteers.

Florida's online voter registration system experienced a "tremendous slowdown" Oct. 5, the deadline to register to vote in the Nov. 3 general election, because of overwhelming traffic, according to a statement provided to the court by Scott Maynor, the deputy chief information officer at the Florida Department of State.

This created "a bottleneck but not a stoppage" that overwhelmed the system from about 4:30 p.m. until midnight, he said.

The following day at about noon, Florida Secretary of State Laurel Lee issued a directive to extend the deadline until 7 p.m. on Oct. 6.

Judge Walker said that to give these potential voters "a fighting chance," the deadline should have been extended until at least midnight on Oct. 6, which would have allowed them to register online after the end of the workday.

Had the state not extended the deadline at all, Judge Walker said he would have had little hesitation about granting a preliminary injunction. But because the state did take some corrective measure — and 50,000 people registered during the extension — he had to weigh the injury to potential voters against the potential stress that another extension could put on the state's election systems.

He cited the U.S. Supreme Court's decision in Purcell v. Gonzalez in 2006, in which the court advised against changes that could cause voter confusion close to an election.

The ruling is "not a magic wand that defendants can waive to make an unconstitutional election restriction disappear so long as an impending election exists," but it does require the court to weigh the risk of voter confusion and potential problems when changes are made just before an election, he said.

This isn't a total deprivation of the right to vote, because those who could not access the registration site could have still registered to vote in person or by mail, he said. A deadline extension now could create a surge of voters showing up thinking they are on the voter rolls when they are not, forcing them to cast provisional ballots that slow down the polling place and require election supervisors to divert resources to handling those instead of processing vote-by-mail ballot requests or administering early voting, he said.

"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 said.

The voting rights organizations that sued to extend the deadline said in a joint statement on Friday that they are "incredibly disappointed that Floridians across the state were disenfranchised due to the failure of the state's online voter registration system."

The groups, including Dream Defenders, New Florida Majority and Florida Immigrant Coalition, said the failure to provide a meaningful extension of the deadline disproportionately hurt minority communities and Florida's poor, who were less likely to have received the midday notification of the deadline extension.

"The state of Florida once again violated its duty to ensure all eligible Floridians can participate in free, fair and safe elections," they said. "Thousands of eligible residents will not be able to participate in the November election."

A representative for Lee did not respond to a request for comment on Friday.

The plaintiffs are represented by Adam Lioz and Stuart C. Naifeh of Demos and Kira Romero-Craft of LatinoJustice PRLDEF.

Lee is represented by Mohammad Jazil of Hopping Green & Sams PA and Bradley McVay of the Florida Department of State.

Gov. Ron DeSantis is represented by James Uthmeier of the Executive Office of the Governor of Florida.

The case is Dream Defenders et al. v. DeSantis et al., case number 4:20-cv-00485, in the U.S. District Court for the Northern District of Florida.

--Editing by Rebecca Flanagan.

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