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Law360 (October 8, 2020, 2:48 PM EDT ) A Florida federal judge expressed concern Thursday that a crash of the state's online voter registration on the last day before books closed for the November election may have prevented potential voters from registering, but said a further extension of the deadline could add thousands of provisional ballots to an already difficult election in a pandemic.
In a telephone hearing on a preliminary injunction request by voting rights groups, U.S. District Judge Mark Walker said he was not sure the state's corrective action — which extended the deadline to Oct. 6 at 7 p.m. after the system crashed late on Oct. 5 — was enough, given the short notice people had in the middle of a workday. The original deadline was Oct. 5 at midnight.
But he also said that giving people more time now, in a decision that will almost certainly be appealed, could create a time crunch at the county supervisors of elections' offices and force thousands of voters to cast provisional ballots that will clog up polling places trying to enforce social distancing rules in the middle of the COVID-19 pandemic.
"We already have an election that's chaotic," he said. "We're going to potentially have thousands upon thousands of provisional ballots that will divert resources. Isn't that a pretty significant burden or harm when we're talking about the balancing of equities and the public interest?"
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," he said, which overwhelmed the system from about 4:30 p.m. until midnight.
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.
Mohammad Jazil, who represented Lee at the hearing, said voters had other options besides going online to register to vote. Any mailed-in registrations needed to only be postmarked by the deadline, and county supervisors of election did their best to keep offices open until 7 p.m. on Oct. 6 to accommodate any walk-ins, he said.
But Judge Walker pointed out that would-be voters were not notified until lunchtime of the deadline extension and would have had to get it done in the middle of the workday, instead of having until midnight.
Using data provided by the secretary for registrations in the last two days before the deadlines for the 2016 and 2018 elections, Judge Walker estimated that the online system snafu may have prevented more than 21,000 people from getting on the voter rolls in time for the 2020 election.
Stuart Naifeh, who argued on behalf of the groups that sued to extend the deadline, said each of the organizations has voter registration operations and had volunteers lined up for a big push Oct. 5. But their mission was frustrated by the site slowdown and they could not get as many volunteers the following day because of the short notice.
"The website went down, which appears to have been due to poor planning, and they were unable to carry out the work they planned," Naifeh said.
But Jazil argued that Naifeh's clients have not identified a single member of their organizations who was unable to register to vote because of the site's problems. Without such an example, they have no standing to sue, he said.
"The organizations themselves have no right to vote," Jazil said. "The only allegation made in their complaint involves the right to vote. The organizations cannot vote, and I do not understand how they can have standing in light of this."
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 Abbie Sarfo.
For a reprint of this article, please contact reprints@law360.com.
