DREAM DEFENDERS v. LEE

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

AUGUSTA SANDINO CHRISTIAN

NAMPHY, DREAM DEFENDERS,

NEW FLORIDA MAJORITY,

ORGANIZE FLORIDA, and

FLORIDA IMMIGRANT

COALITION,

Plaintiffs,

v. Case No.: 4:20cv485-MW/MAF

RON DESANTIS, in his official

Capacity as Governor of the State

of Florida, and LAUREL M. LEE,

in her official capacity as Florida

Secretary of State,

Defendants.

_________________________/

AMENDED ORDER ON MOTION FOR PRELIMINARY INJUNCTION1

Notwithstanding the fact that cinemas across the country remain closed,

somehow, I feel like I’ve seen this movie before. Just shy of a month from election

day, with the earliest mail-in ballots beginning to be counted, Florida has done it

again. In the final hours of Florida’s voter registration period, during an election year

coinciding with a prolonged and incredibly damaging public health emergency,

1 This Court issues this Amended Order to remove the section of its original order, ECF

No. 35, denying a stay pending appeal. Because this Court denies the motion for preliminary

injunction, there is nothing for this Court to stay. This Court will only note that it issued its original

order at 2:07 a.m. this morning and the section was inadvertently left in the order during the

drafting process. This Court has also corrected some typographical errors.

Florida’s voter registration website crashed, effectively preventing thousands of

potential voters from safely registering to vote before the midnight deadline.

With the public sounding the alarm, the Secretary of State decided to

implement a half measure. She hastily and briefly extended the registration period

and ordered Florida’s supervisors of elections to accept applications submitted by

the Secretary’s new “book closing” deadline.

The Secretary’s “cure” had at least one major flaw; namely, she did not notify

the public until—at the earliest—after noon on the date of her new “book closing”

deadline. This left less than seven hours for potential voters to somehow become

aware of the news and ensure that they properly submitted their voter registration

applications, all while also participating in their normal workday, school, family,

and caregiving responsibilities.

The issue in this case is whether the Secretary’s failure to maintain a fully

functional voter registration website in the final hours of the voter registration period

and the Secretary’s limited deadline extension pass constitutional muster.

I

Florida permits individuals to submit voter registration applications online,

§ 97.0525(1), Florida Statutes, and requires the Division of Elections of the

Department of State to “establish a secure Internet website,” for the purpose of

online voter registration. § 97.0525(2), Fla. Stat. Defendant Lee’s office maintains

the state’s voter registration website at “RegisterToVoteFlorida.gov,” and has

described the website as “a secure and convenient online option to register to vote

or update a voter registration record.” ECF No. 3-8, at 1.

“RegisterToVoteFlorida.gov” is purported to be “available 24 hours a day, 7 days a

week.” Id.

Florida’s election code fixes the deadline to register to vote on the 29th day

before each election. § 97.055(1)(a), Fla. Stat.2 Accordingly, for the 2020 General

Election, Florida’s registration deadline was 11:59 p.m. on October 5, 2020. On that

date, potential voters seeking to register or update their voter information online

ahead of the midnight deadline faced an unexpected obstacle when

“RegisterToVoteFlorida.gov” crashed. This malfunction effectively prevented

applicants from successfully submitting online voter registration applications for

several hours. See ECF Nos. 3-2 (describing repeated error messages displayed when

attempting to load https://registertovoteflorida.gov over the course of several

evening hours on October 5, 2020), 6-1 (detailing messages from several Floridians

who were unable to complete the online registration form due to system errors on

October 5, 2020), 3-7 (conceding that Floridians encountered “difficulties” when

attempting to register to vote online on October 5, 2020). The immediate result of

2 Indeed, Florida sets one of the most restrictive registration deadlines permitted under

federal law. See 52 U.S.C. § 20507.

this system failure was that, at 12:00 a.m. on October 6, 2020, unsuccessful online

applicants became ineligible to vote in the 2020 General Election.

On October 6th, Defendant Lee issued “Directive 2020-02 - Extension of

Florida Voter Registration Deadline,” which acknowledged the “difficulties” that

Floridians experienced with the voter registration website and directed Florida’s

supervisors of elections to include “any applications received on Florida’s Online

Voter Registration system today, October 6, 2020, before 7:00 p.m. Eastern Time”

in the registration for the 2020 General Election. ECF No. 3-7. Defendant Lee further

directed the supervisors of elections to include “[p]aper applications postmarked by

. . . October 6, 2020,” and in-person applications through specified channels if

received before 7:00 p.m. local time on October 6, 2020.3 Defendant Lee’s office

then issued a press release around 12:20 p.m. on October 6th stating that she had

issued a directive extending the voter registration deadline earlier in the day, and this

would permit potential voter registrants to submit online applications until 6:59 p.m.

Eastern Time on October 6th. ECF No. 3-6.

3 It is questionable whether Defendant Lee acted contrary to Florida law in ordering

Florida’s supervisors of elections to accept online voter registration applications, mail-in

applications, and in-person applications before this new deadline. This Court reiterates its concerns

expressed during the hearing on this motion that the Secretary appears to have done that which she

(and the Eleventh Circuit) previously asserted she had no authority to do. See Jacobson v. Fla.

Sec’y of State, 19-14552, 2020 WL 5289377, *11 (11th Cir. Sept. 3, 2020) (finding that Florida’s

supervisors of elections are “independent officials not subject to the Secretary’s control”).

Plaintiffs filed this case on October 6, 2020, seeking emergency injunctive

and declaratory relief, alleging the Secretary’s malfunctioning online voter

registration system and failure to adequately extend the voter registration deadline

pose an undue burden on the right to vote in violation of the First and Fourteenth

Amendments to the Constitution. Plaintiffs seek a preliminary injunction extending

the “book closing” deadline to allow applicants who were otherwise denied the

ability to register on October 5th and 6th a meaningful opportunity to submit their

voter registration applications and to allow Organizational Plaintiffs a reasonable

amount of time to brief their staff and educate potential voters that they have an

opportunity to register notwithstanding the Secretary’s failures.4

Plaintiffs include four organizations (“Organizational Plaintiffs”) alleging

that their missions include civic engagement activities and voter registration efforts

across the state of Florida. Organizational Plaintiffs assert that the Secretary’s faulty

voter registration website and Defendants’ failure to extend the voter registration

deadline hinders their efforts, frustrates their missions to register voters, and requires

that they divert resources from other activities to essentially do “damage control” to

educate potential voters. Plaintiffs claim Defendants’ failure to extend the voter

registration deadline past 7:00 p.m. on October 6th completely disenfranchises

4 Plaintiffs also requested a temporary restraining order. This Court denied this initial

request, finding no immediate and irreparable injury would result before Defendants could be

heard in opposition. ECF No. 10.

thousands of Floridians and amounts to a severe burden on the right to vote due to

insufficient notice of the deadline extension in conjunction with the brevity of the

extension.

II

Before addressing the merits of the motion for preliminary injunction, this

Court must address some threshold questions. The first is whether Defendants are

the proper parties before this Court.5 The second is whether the Organizational

Plaintiffs have standing.6 The third is whether the Supreme Court’s decision in

Purcell bars consideration of election law during an election cycle.

A

This Court first addresses whether Defendant DeSantis and Defendant Lee are

the proper parties to be sued in this case. It is well-established that while a state may

not be sued unless it waives its sovereign immunity or that immunity is abrogated

by Congress, Kimel v. Fla. Bd. of Regents, 528 U.S. 62 (2000), a suit alleging a

constitutional violation against a state official in his or her official capacity for

prospective injunctive relief is not a suit against the state and, therefore, does not

5 Ordinarily, this Court addresses standing as a threshold matter before addressing whether

the proper parties are before the court. However, because the Governor is not a proper party, the

Court addresses this issue out of order.

6 On October 7, 2020, Plaintiff Namphy entered a notice of voluntary dismissal as to his

individual claims. ECF No. 26. This notice is effective without an order. ECF No. 27. Inasmuch

as Plaintiff Namphy is no longer a party to this action, this order addresses only the Organizational

Plaintiffs’ claims.

violate the Eleventh Amendment, Ex parte Young, 209 U.S. 123, 161 (1908). That

is because “[a] state official is subject to suit in his official capacity when his office

imbues him with the responsibility to enforce the law or laws at issue in the suit.”

Grizzle v. Kemp, 634 F.3d 1314, 1319 (11th Cir. 2011). Furthermore, supervisory

authority, in and of itself, is insufficient to render state-level Florida authorities’

proper defendants. See generally Jacobson, 2020 WL 5289377. Instead, a state

official needs to have “some connection” with the underlying claim in the lawsuit.

Id. at *13 (“To be a proper defendant under Ex parte Young—and so avoid an

Eleventh Amendment bar to suit—a state official need only have ‘some connection’

with enforcement of challenged law.”) (citation omitted).

Defendants do not argue that Defendant Lee is not a proper party. However,

for the sake of completeness, this Court will address the issue. Defendant Lee is

undoubtedly a proper party to this lawsuit. As discussed in the causation inquiry of

the standing section, Defendant Lee has more than a supervisory authority over the

website at issue in this case. Indeed, Defendant Lee is required by law to “establish

a secure Internet website” for the purpose of online voter registration. § 97.0525(2),

Fla. Stat. As such, she has more than “some connection” with the underlying claim

in this lawsuit.

But Defendant DeSantis, on the other hand, does not have more than “some

connection” with the underlying claim. Plaintiffs imply that Defendant DeSantis, as

Governor, had the authority to extend the voter registration deadline. ECF No. 1, at

6. But it appears that Defendant DeSantis lacked the authority to extend the deadline.

Florida law cloaks the Governor with general emergency management powers.

§ 252.36, Fla. Stat. But courts cannot use tunnel vision when construing statutes;

rather, statutes must be considered as a whole. John Hancock Mut. Life Ins. Co. v.

Harris Trust & Sav. Bank, 510 U.S. 86, 94 (1993). And in the event of an emergency

or disaster, the Governor is authorized “to suspend or delay any election.” § 101.733,

Fla. Stat. That does not imply the Governor is authorized to extend the voter

registration. In fact, it implies the opposite. See O’Melveny & Myers v. F.D.I.C., 512

U.S. 79, 86 (1994) (referencing the canon “Inclusio unius, exclusion alterius”).

Furthermore, specific statutes prevail over general ones. D. Ginsberg & Sons v.

Popkin, 285 U.S. 204, 208 (1932). Thus, because Defendant DeSantis’s office did

not “connect[] him with the duty of enforc[ing]” a voter registration extension, Ex

parte Young, 209 U.S. at 161, he does not appear to be a proper party here.

B

Standing is a threshold matter this Court must determine before proceeding to

consider the merits of Organizational Plaintiffs’ claims. E.g., Via Mat Int’l S. Am.

Ltd. v. United States, 446 F.3d 1258, 1262 (11th Cir. 2006). To establish standing, a

plaintiff must prove he has suffered (1) an injury in fact that (2) is fairly traceable to

the challenged action of the defendant and (3) is likely to be redressed by a favorable

decision. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992).

This Court first addresses whether Organizational Plaintiffs have established

an injury in fact. In certain scenarios, an organization has standing to assert claims

based on injuries to itself if that organization is affected in a tangible way.7 As my

colleague has held before, “[a]n organization has standing to challenge conduct that

impedes its ability to attract members, to raise revenues, or to fulfill its purposes.”

Florida Democratic Party v. Hood, 342 F. Supp. 2d 1073, 1079 (N.D. Fla. 2004)

(citing Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982)).

In Havens, the Supreme Court held that HOME, a nonprofit organization, had

standing to pursue claims under the Fair Housing Act based on an asserted injury to

the organization itself. HOME’s stated purpose “was ‘to make equal opportunity in

housing a reality in the Richmond Metropolitan Area,’ ” and its activities included

operating a housing counseling service and investigating and referring complaints

concerning housing discrimination. Id. at 368. HOME’s claimed injury was that the

respondent’s challenged acts “frustrated . . . [HOME’s] efforts to assist equal access

to housing through counseling and other referral services.” Id. at 379. HOME further

7 To the extent Defendant Lee asserts Organizational Plaintiffs’ only available theories for

standing are associational, see Footnote 8. The cases cited in Footnote 8 suggest widespread

Circuit Court agreement, including in the Eleventh Circuit, that organizations can themselves

suffer injuries regardless of whether their members have standing.

alleged it “had to devote significant resources to identify and counteract the

defendant’s [illegal practices].” Id.

According to the Supreme Court, HOME’s allegations more than sufficed to

establish the organization’s standing. Id. (“If, as broadly alleged, petitioners’

steering practices have perceptibly impaired HOME’s ability to provide counseling

and referral services for low- and moderate-income homeseekers, there can be no

question that the organization has suffered injury in fact.”). HOME established both

a “concrete and demonstrable injury to the organization’s activities,” and that it

suffered a “consequent drain on [its] resources,” constituting “far more than simply

a setback to the organization’s abstract social interests.” Id. (citing Sierra Club v.

Morton, 405 U.S. 739 (1972)).

Here, Organizational Plaintiffs have similarly established a concrete injury to

their organizational activities and a consequent diversion of resources. Each

provided testimony that they are a nonprofit organization with offices in Florida,

ECF Nos. 26-2, at 1; 26-3, at 1; 26-6, at 1; 3-5, at 1, whose activities or missions

include participating in civic engagement, voter outreach, and registering Florida

voters. ECF Nos. 26-2, at 1 (Plaintiff Dream Defenders “conducts voter registration

and voter engagement work throughout the State of Florida.”), 3-3, at 2 (Plaintiff

New Florida Majority, Inc. “work[s] with . . . individual members and civic

engagement organizations to assist underserved communities throughout Florida in

voter registration, voter education, and get-out-the-vote efforts.”), 26-6, at 1

(Plaintiff “Organize Florida normally hosts a large-scale voter registration program

throughout the State of Florida.”), 3-5, at 1 (“Since 2019,” Plaintiff Florida

Immigrant Coalition has spent ”nearly two million dollars . . . [on] registering new

voters”).

Each provided testimony that due to the COVID-19 pandemic, they have

reoriented their voter registration activities to online formats. ECF Nos. 26-2, at 1;

26-6, at 1; 3-5, at 1; 3-3, at 2. In doing so, they have come to heavily rely on the

Secretary’s voter registration website to assist potential voters in submitting

registration applications. See, e.g., ECF No. 3-5, at 1 (Plaintiff Florida Immigrant

Coalition “ha[s] been primarily dependent on the state’s online voter registration

website (OVR) to register new voters since the spring of 2020.”).

Like the organization in Havens, each Organizational Plaintiff here provided

evidence that the actions at issue frustrated their organizational missions. More

specifically, Organizational Plaintiffs assert the Secretary’s failure to maintain a

working voter registration website on the evening of October 5, 2020, and the

Secretary’s actions on October 6, 2020—providing allegedly inadequate notice of a

brief deadline extension—has effectively frustrated their efforts to register Florida

voters. Organizational Plaintiffs further assert these failures necessitated the

diversion of resources from their voter registration and get-out-the-vote efforts to

both troubleshooting the website crash to the extent it was possible, and to

scrambling to assemble voter registration education and assistance during the

Secretary’s brief extension on October 6th. ECF Nos. 3-5, at 2 (Florida Immigrant

Coalition’s affidavit of Maria Rodriguez describing disruption of planned phone

bank events and diversion of staff time to troubleshoot the website crash), 26-2, at 2

(Plaintiff Dream Defenders’ affidavit of Nailah Summers describing disruption of

planned phone bank events, diversion of staff time, and efforts on October 6, 2020,

to reach voters, coordinate with other organizations, and manage a “rapidly evolving

situation”), 26-3, at 1 (Plaintiff New Florida Majority Education Fund’s affidavit of

Teresa Pagan describing disruption of follow-up activities due to October 5th crash,

diversion of resources from follow-up activities to troubleshoot the website crash

and contacting local and national partners and election officials, and efforts to get

canvassing effort up and running on October 6th after being “caught off guard” by

the state’s deadline extension), 26-6, at 2 (Plaintiff Organize Florida’s affidavit of

Stephanie Porta describing diversion of resources from staffing vote-by-mail work

to notification regarding the October 6th deadline extension and added cost of

$1,900 to pay canvassers for extra work hours).

Clearly, the website crash and next-day scramble to organize and effectively

reach out to potential voters frustrated each organization’s mission to register voters.

Based on the above-cited affidavits, Organizational Plaintiffs have established a

concrete injury to their organizations’ activities—the frustration of their

organizational missions to register voters and the consequent diversion of resources

from their pre-planned operations to essentially conducting damage control in voter

outreach, assistance, and online registration on October 5th and 6th.8

The next issue is whether the Organizational Plaintiffs’ injury is fairly

traceable to the challenged acts, including (1) the failure to maintain a functional

voter registration website, and (2) the brief extension of the “book closing” deadline

to October 6, 2020, at 7:00 p.m. Eastern Time. The frustration of the Organizational

Plaintiffs’ missions to register voters and the diversion of the organizations’

resources are fairly traceable to the challenged acts. Defendant Lee’s Division of

Elections is required by law to “establish a secure Internet website,” for the purpose

of online voter registration. § 97.0525(2), Fla. Stat. But Defendant Lee failed to

8 Several courts have reached the same conclusion in similar assessments. See Common

Cause Ind. v. Lawson, 937 F. 3d 944, 952-53 (7th Cir. 2019) (“Our sister circuits have upheld the

standing of voter-advocacy organizations that challenged election laws based on similar drains on

their resources. Like us, they have found that the organizations demonstrated the necessary injury

in fact in the form of unwanted demands on their resources.”) (citing cases from the Fifth, Sixth,

Ninth, and Eleventh Circuits). See also OCA-Greater Houston v. Texas, 867 F. 3d 604, 612 (5th

Cir. 2017) (upholding organizational standing for non-profit based on injury—albeit “not large”

one—resulting from extra time spent educating voters about a new voting law instead of

organization’s normal “get out the vote” activities with membership); Nat’l Council of La Raza v.

Cegavske, 800 F. 3d 1032, 1040-41 (9th Cir. 2015) (“Resources Plaintiffs put toward registering

someone who would likely have been registered by the State had it complied with the NVRA, are

resources they would have spent on some other aspect of their organizational purpose—such as

registering voters the NVRA’s provisions do not reach, increasing their voter education efforts, or

any other activity that advances their goals. Contrary to the district judge’s view, Plaintiffs have

not alleged that they are simply going about their ‘business as usual,’ unaffected by the State’s

conduct.”).

provide this website over the course of several hours on the original “book closing”

deadline, preventing untold numbers of potential voters from submitting their online

applications. Moreover, Defendant Lee unilaterally extended the “book closing”

deadline, but in doing so, provided little notice of the extension in the middle of a

work day with less than 7 hours remaining before the new deadline.9 If not for these

actions on the part of Defendant Lee, Organizational Plaintiffs would not have had

to divert their resources to investigate the website crash or conduct additional

outreach and voter registration assistance in lieu of other pre-planned activities,

including commencing get-out-the-vote outreach on October 6th.

Finally, Plaintiffs have shown that Defendant Lee has the power to redress the

above-described injuries, and that this Court can fashion an injunction that would

redress the same injuries; namely, a court order extending the “book closing”

deadline with adequate notice, as this provides Organizational Plaintiffs a fair

opportunity to contact registrants who were denied the chance to register on October

5th and 6th through no fault of their own.10 Moreover, the Secretary clearly can

9 For purposes of this Court’s standing analysis, this case is distinguishable from Jacobson,

because the alleged organizational injuries are directly traceable to the Secretary’s actions.

10 Again, Jacobson, is distinguishable from this case. While the Secretary may not have

the authority to issue an enforceable order to Florida’s supervisors of elections if they fail to

perform their duties, the Secretary took it upon herself to change the “book closing” deadline. The

duties of Florida’s supervisors of elections remain unchanged in this case, regardless of when this

“book closing” deadline occurs. See § 97.053(7), Florida Statutes (“All voter registration

applications received by a voter registration official shall be entered into the statewide voter

redress Plaintiffs’ injuries as she is responsible for maintaining the voter registration

website, and has already extended the “book closing” deadline. Accordingly, the

Organizational Plaintiffs have standing to assert their claims.

C

Finally, with respect to threshold matters, it has been suggested to this Court

that recent election-related cases from the Supreme Court dictate that Purcell bars

consideration of election law during an election cycle. It is true, as the Eleventh

Circuit has aptly pointed out, that there has been a trend in recent Supreme Court

decisions that suggests that district courts should allow “the States to run their own

elections.” New Ga. Project v. Raffensperger, No. 20-13360-D, 2020 WL 5877588,

at *3 (11th Cir. Oct. 2, 2020). However, this Court is unaware of any judicial canon

suggesting that a trend or a “mantra” creates a precedent or a legal principal, or sub

silentio overturns a binding precedent. Instead, a well-known principal is that each

case is unique. The facts that transpired in cases where the Supreme Court stayed

the district court’s orders are separate and apart from the facts that transpired in this

case. Merely because the recent trend in cases from the Supreme Court suggests that

the lower courts should allow “the States to run their own elections” does not absolve

this Court of analyzing the particular facts surrounding the case in front of it. In plain

registration system within 13 days after receipt. Once entered, the application shall be immediately

forwarded to the appropriate supervisor of elections.”).

words, this Court gives no weight to the recent trend in election related cases;

instead, it focuses on the particular facts of this case in light of Purcell.

At the outset, it bears noting that Purcell did not create a per se rule prohibiting

against enjoining unconstitutional voting laws or procedures on the eve of the

election. That is to say, “Purcell is not a magic wand that defendants can wave to

make any unconstitutional election restriction disappear so long as an impending

election exists.” People First of Ala. v. Sec’y of State for Ala., 815 F. App’x 505,

514 (11th Cir. 2020) (Rosenbaum, J. & Pryor, J., concurring); see also Veasey v.

Perry, — U.S. — , 135 S. Ct. 9, 10 (2014) (Ginsburg, J., dissenting) (“Purcell held

only that courts must take careful account of considerations specific to election

cases, not that election cases are exempt from traditional stay standards.”). Rather,

Purcell requires this Court to take into account critical considerations such as voter

confusion that may result from a judicial order. Purcell v. Gonzalez, 549 U.S. 1, 4-

5 (2006) (“Court orders affecting elections, especially conflicting orders, can

themselves result in voter confusion and consequent incentive to remain away from

the polls.”). “As an election draws closer,” the risk of voter confusion will increase.

Id. at 5. Therefore, as an election draws closer, the concerns highlighted by the Court

in Purcell only get weightier.

This Court is aware that the election is less than a month away. As such, this

Court gives great weight to the concerns highlighted in Purcell. In analyzing the

injunction factors and applying the Anderson-Burdick balancing test, this Court

keeps in mind the Supreme Court’s admonition articulated in Purcell.

III

Under Rule 65 of the Federal Rules of Civil Procedure, a district court may

grant a preliminary injunction “only if the moving party shows that: (1) it has a

substantial likelihood of success on the merits; (2) irreparable injury will be suffered

unless the injunction issues; (3) the threatened injury to the movant outweighs

whatever damage the proposed injunction may cause the opposing party; and (4) if

issued, the injunction would not be adverse to the public interest.” Siegel v. LePore,

234 F.3d 1163, 1176 (11th Cir. 2000) (en banc). Although a “preliminary injunction

is an extraordinary and drastic remedy,” it nonetheless should be granted if “the

movant ‘clearly carries the burden of persuasion’ as to the four prerequisites.”

United States v. Jefferson Cty., 720 F.2d 1511, 1519 (11th Cir. 1983) (quoting Canal

Auth. v. Callaway, 489 F.2d 567, 573 (11th Cir. 1974)). None of these elements,

however, is controlling; rather, this Court must consider the elements jointly, and a

strong showing of one element may compensate for a weaker showing of another.

See Fla. Med. Ass’n, Inc. v. U.S. Dep’t of Health, Educ., & Welfare, 601 F.2d 199,

203 n.2 (5th Cir. 1979).

A

This Court will first address whether Plaintiffs have shown a likelihood of

success on the merits. To address this factor, this Court must apply the familiar

Anderson-Burdick framework. See Democratic Exec. Comm. of Fla. v. Lee, 915 F.3d

1312, 1318 (11th Cir. 2019).

As a threshold matter, states retain the power to regulate their own elections.

Burdick v. Takushi, 504 U.S. 428, 433 (1992) (citation omitted). And this power

includes the right to create laws that will impose some burden on the right to vote.

Id. But the right to vote is precious and foundational for every other right. Wesberry

v. Sanders, 376 U.S. 1, 17 (1964). When a court is faced with a challenge to an

election law, the court must first determine what standard applies. For example,

rational basis review applies when a plaintiff alleges only that a state treated him or

her differently than similarly situated voters without a corresponding burden on the

fundamental right to vote. Obama for Am. v. Husted, 697 F.3d 423, 429 (6th Cir.

2012) (citing McDonald v. Bd. of Election Comm’rs, 394 U.S. 802, 807-09 (1969)).

On the other hand, strict scrutiny applies when a state severely burdens the

fundamental right to vote. Id. (citing Burdick, 504 U.S. at 428). Examples of laws

triggering strict scrutiny include laws that impose a poll tax, a property ownership

requirement, or a law that violates the “one person one vote” principal. Lemons v.

Bradbury, 538 F.3d 1098, 1103-04 (9th Cir. 2008).

Most cases involving election laws, however, fall in between these two

standards. Because this is such a case, the more flexible Anderson-Burdick standard

applies. Under Anderson-Burdick, a court considering a challenge to a state election

law “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.’ ” Burdick, 504 U.S. at

434 (citing Anderson v. Celebrezze, 460 U.S. 780, 789 (1983)). Under this standard,

“[t]he more a challenged law burdens the right to vote, the stricter the scrutiny” that

this Court must apply. See Lee, 915 F.3d at 1318. When an election law imposes

only reasonable, nondiscriminatory restrictions upon the constitutional rights of

voters, the state’s important regulatory interests are generally sufficient to justify the

restrictions. Burdick, 504 U.S. at 434. But, “[h]owever slight the burden may appear

. . . it must be justified by relevant and legitimate state interests sufficiently weighty

to justify the limitations.” Common Cause/Ga. v. Billups, 554 F.3d 1340, 1352 (11th

Cir. 2009). This is not a litmus test; rather, the court must balance these factors and

make hard judgments. Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 190

(2008). Finally, “Anderson/Burdick balancing . . . should not be divorced from

reality, and [] both the burden and legitimate regulatory interest should be evaluated

in context.” Obama for Am., 697 F.3d at 441 (White, J., concurring); see also

Swanson v. Worley, 490 F.3d 894, 909 (11th Cir. 2007). Having identified the

applicable standard, this Court now turns to its application, which consists of three

steps—identifying the injury, identifying the state’s justifications, and weighing the

two against each other. See Lee, 915 F.3d 1312, 1319-26.

First, this Court identifies the asserted injury. Here, the injury is layered.

Organizational Plaintiffs’ injury is inextricably intertwined with the injury potential

voters suffered as a result of the website crash and limited “book closing” extension.

This is because Organizational Plaintiffs’ stated missions include registering Florida

voters. This aspect of their mission was thwarted on October 5th and 6th when the

Secretary’s website malfunctioned, in effect limiting their ability to register voters

online and diverting their resources from other activities. Accordingly, this Court

applies the Anderson-Burdick balancing test to Plaintiffs’ claims because their injury

flows directly from potential voters’ injury.

The injury to potential voters is twofold. One, because Florida’s online

registration system failed, potential voters—through no fault of their own—could

not submit online voter registration applications before the October 5, 2020 deadline.

Two, the public was not notified of Defendant Lee’s Directive 2020-02 until after

12:00 p.m. Eastern Time on the same day as the 7:00 p.m. Eastern Time deadline.

So, some potential voters could not take advantage of Defendant Lee’s October 6th

extension, not only because they lacked notice, but also because the extension was

largely limited to working hours. See ECF Nos. 26-1, 26-4, 26-8. Still, the burden

here is not a total deprivation of the right to vote, but a limitation on the period in

which potential voters can register. Indeed, during the time the website was down,

Floridians could still register through other avenues—including in person and by

mail.11

This case would be much different if the question before this Court solely

dealt with the October 5th crash; if Defendant Lee had not extended the deadline,

granting a preliminary injunction would give this Court little pause. But that is not

what happened. Defendant Lee did extend the deadline by several hours. ECF No.

22-7. Plus, Defendant Lee directed Florida’s supervisors of elections to accept paper

applications postmarked by October 6th, as well as in person applications completed

before 7:00 p.m. Id. The burden on the right to vote was unquestionably mitigated

by the directive. Indeed, according to Scott Maynor, the Deputy Chief Information

Officer overseeing the online voter registration system, approximately 50,000

Floridians were able to submit online applications during the extension. ECF No.

23-5, at 3.12

11 Nonetheless, this Court is still troubled by the limited nature of these mitigating factors

based on the fact that the website shut down close to and after normal working hours, and one

would not expect post offices or local elections offices to be open late.

12 This Court requested Defendant Lee to provide an hourly breakdown of online voter

registration numbers; however, Defendant Lee belatedly filed the requested information after the

The question, taking Defendant Lee’s extension into account, is whether

Floridians were in fact barred from registering, and therefore disenfranchised. The

only evidence this Court has before it to consider the impact these burdens had on

voter registration numbers is barebones data comparing historic voter registration

numbers between 2018 and 2020. Id. According to this limited record, 140.8% more

people registered to vote on the final registration day in 2018 than the day before.

See id. All things being equal, one would expect to see roughly similar increases in

voter registration numbers between the last two days of registration in 2020. But,

according to Defendant Lee’s data, there was only a 103.92% increase from October

4th to October 5th and 6th. See id. Clearly, the website crash had some effect on

voter registration.

Moreover, if the data had shown a 140.8% increase, like in 2018, from

October 4th to October 5th and 6th, then the number of individuals who would have

registered to vote would have been 141,821. The actual number of registrants,

however, was 120,099. See id. With only a barebones record to compare historic

figures, and assuming Florida would have seen roughly proportional registration

Court again requested it during the hearing. This filing has since been stricken, and this Court is

not considering it for purposes of this Court’s order. But, nonetheless, this Court would like to

point out that the belatedly filed data apparently compares apples to oranges with respect to the

historic registration patterns. For 2020, Defendant Lee appears to provide hourly registration

numbers from September 30th to October 6th. Inexplicably, for 2018, Defendant Lee appears to

provide hourly registration numbers from July 25th to August 1st, roughly two months before the

relevant deadline.

numbers between 2018 and 2020, this Court is able to determine that roughly 21,722

Floridians were potentially foreclosed from registering—even with the extension.

By pointing this number out, this Court in no way finds that 21,722 Floridians

were actually disenfranchised. This Court, like any factfinder, relies on the record

evidence before it, makes reasonable inferences from the record, and does not check

its common sense at the door. And common sense dictates, and the parties’

declarations suggest, that a significant number of potential voters were barred from

registering even with the extension.13

In sum, that potentially thousands of Floridians may not have been able to

register because of the state’s voter registration website’s malfunction is certainly a

substantial burden limiting the right to vote. Indeed, “[n]o right is more precious in

a free country than that of having a voice in the election of those who make the laws

under which, as good citizens, we must live. Other rights, even the most basic, are

illusory if the right to vote is undermined.” Wesberry, 376 U.S. at 1. Still, this Court

finds that the burden here is not so great that it implicates the highest level of

scrutiny. Instead, because the burden on the right to vote is high, this Court will

evaluate Defendant’s justifications under heightened scrutiny.

13 Without citing any data, Supervisor Lux suggests that there are always a few lollygaggers

who will miss any deadline. However, the fact that 50,000 individuals registered to vote on the

day the extension was granted belies Supervisor Lux’s declaration and emphasizes the impact that

the State’s failure in maintaining a functional website had on Floridians’ ability to register.

Second, having identified the asserted injury, this Court turns to the precise

interest put forward by Defendant Lee; namely, conducting an efficient and orderly

election. ECF No. 24, at 14. Specifically, Defendant Lee directs this Court to three

affidavits: (1) of Maria Matthews, the Director of the Division of Elections; (2) of

Mark Early, the Leon County Supervisor of Elections; and (3) of Paul Lux, the

Okaloosa County Supervisor of Elections, ECF Nos. 23-1, 23-3 and 23-4.

Ms. Matthews explained that a surge of voter registrations after any extended

registration date could create a situation in which many voters might show up to

vote, but not yet be on the voter rolls. ECF No. 21-3, at 3-4. In such a situation, the

voter must caste a provisional ballot, slowing the processing of voters of the polling

place. Id. Further, as Matthews, Early, and Lux all state, the consequences of

extending the deadline will reverberate across the entire elections process—forcing

supervisors to divert resources to answering calls and processing new registrations—

thereby hampering other important tasks, such as processing vote-by-mail requests

and ballots, and administering early voting. Id. at 4; ECF No. 23-3, at 3-4; ECF No.

23-4, at 3-4. These are indeed weighty concerns. See Timmons v. Twin Cities Area

New Party, 520 U.S. 351, 364 (1997) (states have a legitimate interest “in protecting

the integrity, fairness, and efficiency of their ballots and election process as means

for electing public officials”); see also New Ga. Project, 2020 WL 5877588, at *3

(explaining that interests justifying election deadlines include “conducting an

efficient election, maintaining order, [and] quickly certifying election results”).

Finally, this Court recognizes that context matters. See Obama for Am., 697 F.3d at

441 (White, J., concurring). Here, as Supervisor Early recognized, there is already

great uncertainty around this election. ECF No. 23-3, at 3. This uncertainty is

compounded by an unprecedented pandemic; one that has upended every aspect of

American life. Thus, this Court finds that Defendant’s proffered justifications are

entitled to great weight.

Third, having identified the burden on the right to vote and the state’s

justifications, this Court must weigh them against each other. Lee, 915 F. 3d at 1325.

This is no easy task. On the one hand, the burden on the right to vote is great; on the

other, Defendant Lee has identified weighty justifications for refusing to reopen to

registration window. Further, the burden on the right to vote is unquestionably

lessened by Defendant Lee’s extension, and the unique circumstances of this election

militate against placing additional burdens on those tasked with ensuring it is

conducted in as safe and orderly a manner as possible.

This is an incredibly close call, but Florida’s interest in preventing chaos in

its already precarious—and perennially chaotic—election outweighs the substantial

burden imposed on the right to vote. In so holding, this Court notes that it is limited

to the evidence before it, and Plaintiffs, who bear the burden of persuasion, have not

persuaded this Court with record evidence suggesting their requested relief

outweighs the burdens the state faces should this Court order such relief. Nor have

the Plaintiffs persuaded this Court that their requested relief would not, in fact,

interject an intolerable level of uncertainty into the election. See Qualls v. Rumsfeld,

357 F. Supp. 2d 274, 281 (D.D.C. 2005) (“When moving the court for a preliminary

injunction, plaintiffs bear the burdens of production and persuasion.”). For example,

in other voting cases where this Court has granted preliminary injunctions, the

plaintiffs offered testimony dispelling concerns that the burden on the state was too

great or the remedy unfeasible. See, e.g., League of Women Voters of Fla., Inc., v.

Detzner, 314 F. Supp. 3d 1205, 1220 (N.D. Fla. 2018).

This is in contrast to the affidavits Defendant Lee offers, and summarized

above, which paint a disturbing picture of overworked elections staff, incomplete

voter rolls, and election day mayhem. This Court takes cases as they come, and based

on the record before this Court, protecting the integrity of Florida’s elections

outweighs the burden placed on the voting rights of Floridians.

B

The remaining preliminary injunction factors are thoroughly intertwined with

considerations already discussed regarding the merits of this claim. On balance,

these factors weigh in favor of denying the motion for preliminary injunction. To be

clear, though, this Court in no way means to discount the grave burden the state has

placed on aspiring voters and the injuries Defendant Lee’s actions have caused

Organizational Plaintiffs. Indeed, this Court finds that Organizational Plaintiffs have

established irreparable injury. Here, potentially thousands of voters have been

deprived of the right to cast their ballot because the state of Florida is unable to run

a functional voter registration website during the crucial final hours of the

registration period.

Be that as it may, as noted above in applying Anderson-Burdick, it’s clear here

that the threatened injury to Organizational Plaintiffs does not outweigh the damage

the proposed injunction may cause the state. In making this finding, this Court

reiterates that this is an incredibly close call, but—based on the record before this

Court—the Court is persuaded that the state’s interest in preventing chaos in its

already precarious—and perennially chaotic—election outweighs the substantial

burden imposed on the right to vote. Similarly, this Court is not persuaded that an

injunction, at this juncture, would not be adverse to the public interest. This Court is

mindful of the potential for voter confusion that could result from such an order now.

More importantly, though, this Court has before it almost no record evidence to

persuade it that exasperating the already extraordinary burdens the state’s

supervisors of elections face in the midst of a pandemic is in the public interest.

IV

In the end, this case is not about Floridians missing registration deadlines.

This case is also not a challenge to a state statute. This case is about how a state

failed its citizens. In this case, potential voters attempted to perform their civic duty,

to exercise their fundamental right, only to be thwarted, once again, by a state that

seemingly is never prepared for an election. This case is about failure on the part of

a civil servant, whose responsibility is to run an election system, that will cost

thousands of potential voters their fundamental right to vote in the upcoming

election.

These potential voters include a public-school teacher, ECF No. 26-1, a past

felon who jumped through hoops to be eligible to vote, ECF Nos. 26-4 and 26-5, a

survivor of domestic violence, ECF No. 26-8, and countless others whose stories are

not before this Court. To these potential voters, the state’s answer for its own failures

can only be characterized as “too bad, so sad.” The state could have extended the

registration deadline until midnight on October 6th, which would have given these

potential voters a fighting chance. Instead, the state chose to notify the public during

a normal workday and gave them only seven hours to somehow become apprised of

their rights and register, all while also participating in their normal workday, school,

family, and caregiving responsibilities. One would expect the state to make it easier

for its citizens to vote.

Unfortunately for these potential voters, this Court cannot remedy what the

state broke under these circumstances. This Court must consider the consequences

of extending the voter registration deadline. Having done so, the motion for

preliminary injunction, ECF No. 3, is DENIED.

In so ruling, this Court notes that every man who has stepped foot on the Moon

launched from the Kennedy Space Center, in Florida. Yet, Florida has failed to figure

out how to run an election properly—a task simpler than rocket science.

SO ORDERED on October 9, 2020.

s/Mark E. Walker

Chief United States District Judge