A federal judge on Thursday hammered lawyers for Florida elections officials over a meltdown of the state’s online voter-registration system in the hours leading up to a Monday deadline, suggesting Gov. Ron DeSantis’ administration did not take adequate steps to address the problems that prevented thousands of people from accessing the website.
Secretary of State Laurel Lee extended the registration deadline until 7 p.m. Tuesday, but a number of groups, including Dream Defenders and New Florida Majority, quickly filed a lawsuit asking Chief U.S. District Judge Mark Walker to give Floridians more time to sign for next month’s presidential election.
During a hearing Thursday, Walker estimated that, even with Tuesday’s hours-long extension, far fewer Floridians applied to vote on the online system than should have, when compared to registrations in the run-up to the deadline in 2018.
“The difference would be approximately 21,722 voters,” Walker said. “That is fewer voters than one would expect, based on the numbers from 2018.”
Mohammad Jazil, a lawyer for Lee, acknowledged that repeated system crashes leading up to Monday’s 11:59 p.m. deadline to register was problematic.
“No one wants to get this right more than we do. Our website fell short of the standards that we have set for ourselves. We tried to remedy the situation,” Jazil, an attorney with the Hopping Green & Sams firm, told Walker.
Plaintiffs are asking Walker to extend the voting-registration deadline for two days after he issues an order in the case. Walker did not immediately rule after holding the hearing Thursday.
But in documents filed Wednesday evening, the state argued “the plaintiffs’ proposed relief would harm the state far worse than it would benefit the plaintiffs.”
Declarations from two supervisors of elections --- Mark Earley of Leon County and Paul Lux of Okaloosa County --- “underscore that relief in this instance would add to the noise and the workload during this election cycle,” lawyers for the state wrote.
Much of Thursday’s 2 ½-hour hearing centered on a U.S. Supreme Court decision, known as “Purcell,” that admonished judges to use caution in election-related decisions, especially when elections are looming.
Walker questioned whether the registration problem was so dramatic that it required judicial action.
“You can dress up a mule. You can put a saddle on it and feed it the best oats and build it a nice barn, but it’s still a mule. It’s not a racehorse. If I’m eligible to vote and I try to vote and I try to use the state system and I can’t, how is that not disenfranchisement?” Walker asked, adding “if you were following the trend lines, over 20,000 people lost out on their chance to register online because of this snafu.”
Jazil pointed out that two individual plaintiffs in the lawsuit who claimed they were unable to use the online system were already registered voters. And he insisted that the online meltdown did not warrant additional action by the court.
“We had a deadline. It was a generally applicable, widely known deadline. We had a failure of one mechanism to meet that deadline for a portion of one day on the last day of registration,” he said.
But Walker, who has frequently ruled against the state in elections-related litigation, wasn’t satisfied.
“Are you seriously taking the position that if it’s shut down for hours and 50 (thousand) or 60 thousand people don’t get to register, that’s a minor thing?” the chief judge said.
Jazil also argued that another extension could sow chaos during early voting and on Election Day amid the coronavirus pandemic. People who have registered to vote but have not made it onto elections supervisors’ electronic rolls would have to cast provisional ballots, which take extra time to hand out and process, he said.
“Given social distancing requirements, the less time people spend at the polling precincts, the better,” Jazil told Walker. “Given the heightened rhetoric this election cycle, if you have people with provisional ballots, I don’t know how people might spin it on Twitter or Facebook, and the consequences of that.”
Lee ordered the extension Tuesday after thousands of users the previous day were unable to access the system, which she said at one point was receiving more than 1.1 million hits per hour.
According to a declaration submitted by Scott Maynor, the deputy chief information officer of the state Division of Elections, the online system never “crashed.”
“The system experienced a tremendous slowdown due to overwhelming and significant traffic attempting to enter the system at the same time. This traffic created a bottleneck but not a stoppage,” he said.
Nearly 59,000 people used the online system to submit voter-registration applications on Sunday and another 70,099 successfully submitted applications on Monday, according to Maynor. Approximately 50,000 submitted applications during Tuesday’s extension.
On the day before the deadline in 2018, about 25,000 Floridians used the online system to register to vote, and more than 60,000 registered on Oct. 9, 2018, the last day to register, Maynor’s declaration said.
Walker bristled when Jazil tried to introduce a document that showed a weeklong comparison of voter registration from 2018 to 2020 and said the overall numbers were comparable.
“I understand that we apparently don’t like math now,” but the pattern shows that “there’s a huge bump-up the last day,” Walker said.
The judge also questioned the plaintiffs’ request to extend the voting-registration deadline for two additional days after his order is released.
“Why would you keep it open for two days? Wouldn’t you give everybody two days heads-up and then be from 7 p.m. to midnight two days hence?”
Stuart Naifeh, who represents the plaintiffs, said the organizations need time to staff up and reach out to prospective voters.
Walker also pressed Naifeh about the additional onus on elections officials who are already swamped, floating a scenario in which the judge gave 36 hours of notice before opening the online system from 7 p.m. to midnight, the period of time Monday when users had the most problems accessing the website.
Elections supervisors are grappling with the COVID-19 pandemic, which has caused an extraordinary number of Floridians to vote by mail. Elections officials already are stretched to the breaking point, Walker added.
But Naifeh said elections officials should be able to handle an influx of voter registrations.
“Confidence in the election requires that people who are eligible and follow the rules be able to vote. There’s a problem either way,” he said.
