[Image via WFSU]
Last week, I wrote about the dispute over Hurricane Matthew’s impact on Florida’s voter registration deadline. Yesterday, a federal court in Tallahassee ruled that the deadline must be extended at least one day to Wednesday, with a possible further extension based on a hearing. TampaBay.com’s Steve Bousquet has more:
A judge on Monday extended Florida’s voter registration deadline by one more day, through Wednesday, because of Hurricane Matthew, calling it “irrational” for the state to reject the idea.
U.S. District Judge Mark Walker granted the Florida Democratic Party’s request for a temporary restraining order, which included a rebuke of the state for refusing to extend the deadline past its scheduled time of 5 p.m. today.
“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,” Walker wrote in a 16-page order. “If aspiring eligible Florida voters are barred from registering to vote, then those voters are stripped of one of our most precious freedoms.”
Walker also said state law is unconstitutional because while Gov. Rick Scott, a Republican, can suspend or reschedule an election, no state law allows for an extension of the voter registration deadline.
In his ruling, the judge applied strict scrutiny (the most rigorous standard available) to the state law and found it lacking:
Our starting point is to look at whether and to what extent Florida’s statutory framework burdens the right to vote. Under Florida’s statutory framework, there is no provision that extends the voter registration deadline in the event of an emergency such as provided for a suspension or delay of the election date …
As a result, Florida’s statutory framework completely disenfranchises thousands of voters, and amounts to a severe burden on the right to vote …
[B]ecause Florida’s statutory framework would categorically deny the right to vote to those individuals [who wish to register but cannot], it is a severe burden that is subject to strict scrutiny. [Order, pp. 9-10]
The judge went on to note that the law would also fail even under more lenient review:
Even assuming that Florida’s statutory framework was subject to a more flexible … 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. And, because Florida cannot put forth a “legitimate state interest sufficiently weighty to justify the” burden, Florida’s statutory framework is also unconstitutional under the [flexible review] test.
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. [Order, pp. 11-12 (citations omitted)]
Given that the extension potentially affects voters across Florida, the extension applies statewide:
Hurricane Matthew’s effects are not circumscribed to one region of the state. It affected jobs, families, and more across the state. It would be grossly inappropriate, for example, 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. [Order, pp. 14-15]
And, just to emphasize how strongly he feels about the issue, the judge had this to say about allegations that the deadline dispute was purely about partisanship:
It has been suggested that the issue of extending the voter registration deadline is about politics. Poppycock. This case is about the right of aspiring eligible voters to register and to have their votes counted. Nothing could be more fundamental to our democracy. [Order, p. 15 (emphasis added)]
Legal experts are watching the ruling closely. Election Law Blog’s Rick Hasen finds the reasoning (especially the rejection of state law even under rational basis) to be “pretty dubious.” Over at PrawfsBlawg, Ohio State’s Ned Foley says the case could bring new thinking to the so-called “balancing test” cited in the ruling. As he notes, “hurricanes themselves are not unconstitutional–the weather itself is never state action–and thus the relevant question is the appropriateness of the government’s laws and conduct to handle such emergencies.”
It isn’t yet clear if the state will appeal the initial one-day extension, but I would expect it to contest any further extension AND look to reverse the court’s analysis of state law on an inevitable appeal. If it’s going to happen before Election Day, I hope it happens quickly – if not, it will be interesting to see how the legal issues shake out as Florida recovers both from Hurricane Matthew and the 2016 election.
28 days until Election Day – stay tuned!