Breaking: Democrats Sue to Extend FL Voter Registration Because of Hurricane

The complaint states that failure to extend in the face of a hurricane violates rights to equal protection and the right to vote, with displaced voters being treated worse than others, as well as a Voting Rights Act claim:

Because of Hurricane Matthew, many Floridians who would have registered to vote prior to the October 11 registration deadline have been displaced or otherwise prevented from registering, and thus cannot register to vote by the October 11 deadline. Moreover, many offices at which voters could register in person and U.S. Postal Offices where voters could submit registration applications have been closed, preventing Floridians in areas impacted by Hurricane Matthew from timely submitting registration materials…

Specifically, Floridians in inland areas not affected by Hurricane Matthew may register to vote until the October 11 deadline without impediment,because (among other reasons) they have not been ordered to evacuate and they reside in areas where local government services remain available. In contrast, many Floridians in storm-affected areas are either displaced or otherwise prevented from registering to vote as a result of Hurricane Matthew. And, even if they attempted to register notwithstanding those barriers, the local government offices that they would need to access are closed as a result of the hurricane. Likewise, Hurricane Matthew has prevented local election officials from meeting the October 9 deadline for submission of early voting plans that, among other things, must identify viable early voting sites….

The areas affected by Hurricane Matthew include substantial populations of minority voters, including African Americans and Latinos. Minorities in storm-affected areas are disproportionately likely to register to vote in the days immediately preceding the registration deadline. As a result,the effective elimination of the final days preceding the registration deadline will have a disparate impact on minority voters.

The complaint asks for at least a one-week extension.

It is not clear if a court will grant this relief. To begin with, it is not clear if this will be seen as violating equal protection or the VRA under the applicable law. But there’s a further complication in that it is not clear Florida law allows the extension, and Florida may argue under Article II only the state legislature can grant the extension. As I set forth in my Slate piece on the hurricane:

Litigation may begin even before the storm ends, with Democrats pushing to extend registration deadlines in Florida since Gov. Scott has said he will not extend them on his own. Even if Scott gives in and does extend those deadlines, he could be sued on the basis that such an extension is illegal, because it usurps the power of the Florida legislature to set the rules for presidential elections. Florida law gives the governorthe power to delay an election, but apparently not to extend registration dates or make other election changes. Any changes in election rules by election administrators, the governor, or courts could be found to be illegal if not passed by the Florida legislature.

If that argument sounds familiar, it is one that surfaced during the disputed 2000 presidential election between Republican George W. Bush and Democrat Al Gore. In that election, a very close margin separated the candidates in Florida, and Florida’s electoral votes determined the outcome of the race.

Gore pushed for deadlines to be extended for a recount of the vote, and one of the arguments that Bush’s lawyers made against that was that under the U.S. Constitution, only the Florida legislature has the power to set the rules for presidential elections. That means Florida administrators, Florida’s governor, and even Florida’scourts would be powerless to change the rules for presidential elections in the state.

The 2000 dispute did not finally settle this question—though it did end the recount and give the election to Bush—and a 2015 Supreme Court case somewhat called into question how narrow the court’s reading of the term legislature might be, but the question is an open one. If such a dispute now were to come to the Supreme Court, it could be hard-pressed to resolve it, with the court potentially dividing 4-4 along partisan and ideological lines. This would appear to give an edge to Clinton, as the Florida Supreme Court tends to lean moderate to liberal, and the United States Court of Appeals for the 11th Circuit has more Democratic-appointed judges.

 

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