Monday, October 10, 2016

Federal Judge Extends Florida Voter Registration Because of Hurricane

In an Order in Florida Democratic Party v. Scott, United States District Judge Mark Walker extended the voter registration until Wednesday, October 12, at 5:00pm and also scheduled a hearing for that afternoon for further determinations.

As Judge Walker explained the facts:

Florida’s voter registration deadline for the 2016 election cycle is currently set for Tuesday, October 11, 2016. For aspiring eligible voters, failing to register by that date effectively forecloses the right to vote in the 2016 election. Just five days before that deadline, however, Hurricane Matthew bore down and unleashed its wrath on the State of Florida. Life-threatening winds and rain forced many Floridians to evacuate or, at a minimum, hunker down in shelters or their homes. Like Hurricane Matthew, the voter registration deadline also approached and bore down on the State of Florida. Citing the impending Hurricane, many urged the Governor of Florida, Defendant Rick Scott, to extend the deadline. But Defendant Scott demurred, asserting instead that Floridian’s had other avenues to ensure that their right to vote was protected.

Judge Walker first considered whether the Florida Democratic Party had standing to assert the rights of voters, quickly concluding it had.  Judge Walker next decided that while the second named defendant, Ken Dentzer, as Secretary of State was a proper defendant, Governor Scott was not.  Judge Walker concluded that while Governor Scott had statutory general emergency management powers, this did not include extending voter registration.  Thus, the judge held that Governor Scott has no power in this regard and is not a proper defendant.
 
Hurricane_Matthew_en_route_to_Florida

Hurricane Matthew approaches Florida 7 October 2016 NASA via
 
On the merits in the context of the Temporary Restraining Order (TRO), Judge Walker applied the well-established test of Burdick v. Takushi (1992) regarding challenges to state election laws: courts considering a challenge to state election laws “must weigh ‘the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate’ against ‘the precise interests put forward by the State as justifications for the burden imposed by its rule,’ taking into consideration ‘the extent to which those interests make it necessary to burden the plaintiff’s rights.’” 
 
Judge Walker concluded there was a severe burden on voting rights.  He noted that Florida's statutory framework includes no provision that extends the voter registration in an emergency.  Given the hurricane, "Florida’s statutory framework completely disenfranchises thousands of voters, and amounts to a severe burden on the right to vote."  A severe burden warrants strict scrutiny.  Judge Walker concluded that even if Florida could articulate a compelling state interest - - - adding in parenthesis ("and this Court doubts that it can") - - - it "is nonsensical to argue that it is narrowly tailored to that interest."  Further, even if more lenient scrutiny was afforded, Florida's statutory scheme would be unconstitutional.

Even assuming that Florida’s statutory framework was subject to a more flexible Anderson–Burdick test, it still would be unconstitutional. In no way could Defendants argue that there is some sort of limitation that requires them to burden the constitutional rights of aspiring eligible voters. Many other states, for example, either extended their voting registration deadlines in the wake of Hurricane Matthew or already allow voter registration on Election Day.  There is no reason Florida could not do the same. In so ruling, this Court is not suggesting that Florida has to allow voter registration up to Election Day. Rather, it simply holds that the burden on the State of Florida in extending voter registration is, at best de minimis. . . .

Finally, Florida’s statutory framework is unconstitutional even if rational basis review applied (which it does not). Quite simply, it is wholly irrational in this instance for Florida to refuse to extend the voter registration deadline when the state already allows the Governor to suspend or move the election date due to an unforeseen emergency.

[citations omitted].

    After finding that the TRO criteria supported the restraining order, Judge Walker added that the order was necessary state-wide because "Hurricane Matthew’s effects are not circumscribed to one region of the state." He reasoned that it "would be grossly inappropriate, for ex- ample, to hold that aspiring eligible voters in Jacksonville could register later than those in Pensacola."  

Therefore, this Order holds that Florida’s current statutory framework is unconstitutional. That unconstitutionality is not limited to those in the areas most affected by Hurricane Matthew. It extends to the entire State of Florida.

Thus, Floridians have at least one additional day to register to vote for the November 9 election.

UPDATE: 

In a brief Order after the hearing on October 12, Judge Walker granted the preliminary injunction "for the same reasons" articulated in the TRO order and extended the deadline to Tuesday, October 18, 2016.

https://lawprofessors.typepad.com/conlaw/2016/10/federal-judge-extends-florida-voter-registration-because-of-hurricane.html

Due Process (Substantive), Elections and Voting, Eleventh Amendment, Equal Protection, Opinion Analysis | Permalink

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