A federal judge said he likely would decide Thursday whether to order the state to reopen voter registration to compensate for an hours-long crash of the Division of Elections’ online voter-registration system as the 11:59 deadline loomed on Monday night.
U.S. District Judge Mark Walker also said, while concluding more than two hours of arguments over a lawsuit seeking the extension, that he’s likely to stay any ruling to allow the voting-rights group seeking the extension or attorneys for Secretary of State Laurel Lee to appeal his ruling.
“I understand I’m not going to be the last word on this,” Walker said.
He did dismiss Gov. Ron DeSantis from the litigation, concluding that Lee was the official directly overseeing the registration system.
The case has the potential to shape the outcome of the presidential and other elections in Florida, where statewide contests regularly turn on narrow margins, and where polls consistently have indicated a tight contest between President Trump and Democrat Joe Biden.
The Advancement Project, Demos, LatinoJustice PRLDEF, Dream Defenders, New Florida Majority, Organize Florida, and the Florida Immigrant Coalition are behind the lawsuit, in which they argued the crash — which lasted for six or seven hours as latecomers attempted to register — overthrew last-day efforts to register voters for the Nov. 3 general election.
They cite the First Amendment and the Equal Protection Clause of the Fourteenth Amendment.
Lee has estimated that more than 1 million people were attempting to use the web portal that night. She initially looked into whether the problem was a cyber attack but eventually concluded the problem was system overload.
The groups want Walker to extend registration for two days, beginning when he rules in their favor — if indeed he does so.
Walker, speaking during a hearing conducted by conference call, estimated early on that the crash may have cost more than 20,000 people the right to register, based on a comparison of data preceding the 2018 elections and now.
“There was an impact based on the system failure,” Walker said, in a way that could leave potential voters “perplexed, flummoxed, and otherwise confused” about how to register.
Mohammed Jazil, representing Lee, conceded: “We fell short.” But he added: “We took corrective action.”
Specifically, the state reopened registration on Tuesday between noon and 7 p.m., roughly equivalent to the period when the online voter registration portal was down. Additionally, Lee OK’d in-person registration at local elections supervisors’ offices, local tax collector’s offices, drivers’ license offices, or by mail if the application is postmarked Tuesday.
In legal documents, the state has indicated that 50,000 people registered during the extension and that 70,000 had done so while the system worked on Monday.
Stuart Naifeh, representing the voting-rights organizations, argued that the extension “didn’t fully compensate for the harm [his clients] suffered when the system went down on Monday.”
For example, Naifeh said, the organizations had to switch from contacting potential voters to analyzing the problem and trying to address it.
He noted that word of the extension came down at around noon, requiring potential registrants to interrupt their work days if they hoped to vote in November. By contrast, the state and local elections supervisors would face little difficulty in accommodating an extension, Naifeh argued.
According to a state filing, however, Leon County Supervisor Mark Earley and Okaloosa County Supervisor Paul Lux have argued against an extension, with Earley contending that “another extension under the circumstance will confuse voters.”
Jazil, in turn, argued the plaintiffs lack any solid legal claim because they were never harmed by the outage.
Named plaintiff Augusta Sandino Christian Namphy, he noted, was forced to withdraw from the case after the state learned that, contrary to Namphy’s claims he’d been unable to register on Monday, he’d been registered for three years.
Under U.S. Supreme Court precedents, Jazil said, only an “actual human being, a member who has a right to vote and whose right to register is being frustrated” has legal standing to bring a claim. He also cited a strong presumption established by the high court against judicial intervention close to an election. And mail-in voting has already begun in Florida.
But Walker contended he retains room to maneuver within that restriction. He conceded at one point that the issue before him is not outright denial of the right to vote but also noted that people may have effectively lost that right because the state’s system wouldn’t let them register.
“You can dress up a mule and you can put a saddle on it … but it’s still a mule not a racehorse,” he said.