in the united states district court for the ......2018/10/09 · florida panhandle today....

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA

FLORIDA DEMOCRATIC PARTY,

Plaintiff,

v. KEN DETZNER, in his official capacity as Secretary of State of the State of Florida,

Defendants.

CASE NO.

PLAINTIFF’S EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE

NOW COMES Plaintiff Florida Democratic Party, by and through its

attorneys, and moves the Court pursuant to Rule 65 of the Federal Rules of Civil

Procedure for a temporary restraining order and order to show cause as to why a

temporary restraining order and/or preliminary injunction should not issue against

Ken Detzner, in his official capacity as Secretary of State of Florida. In support

thereof, Plaintiff states as follows:

1. On October 9, 2018, Plaintiff filed its Complaint for Declaratory and

Injunctive Relief, alleging that Plaintiff is entitled to relief from this Court for

Case 4:18-cv-00463-RH-CAS Document 3 Filed 10/09/18 of 4

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violations of its rights as well as the rights of its members and constituents—

thousands of eligible Florida voters—under the First and Fourteenth Amendments

to the U.S. Constitution and the Equal Protection Clause, pursuant to 42 U.S.C. §§

1983 and 1988.

2. Plaintiff seeks a temporary restraining order and/or preliminary

injunction requiring the Secretary, their officers, employees, and agents, all persons

acting in active concert or participation, or under the supervision, direction, or

control of the Secretary, and all other persons within the scope of Federal Rule of

Civil Procedure 65, to extend the voter registration deadline until October 16, 2018.

3. Federal Rule of Civil Procedure 65 provides for the issuance of a

temporary restraining order and/or preliminary injunction under circumstances such

as those that exist in the present case.

4. In support of this motion, Plaintiff submits a Memorandum of Law,

addressing all necessary elements for the entry of a temporary restraining order and

preliminary injunction and an order to show cause.

5. Plaintiff seeks leave to present 30 minutes of oral argument in support

of this motion pursuant to Local Civil Rule 7.1(K).

6. Plaintiff files this motion as an emergency motion pursuant to Local

Rule 7.1(L) because the voter registration deadline is currently scheduled for


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October 9, 2018—today. It is essential that this Court resolve the motion as soon as

possible.

WHEREFORE, for the foregoing reasons, and for those set forth in Plaintiff’s

supporting Memorandum of Law, Plaintiff respectfully moves that the Court enter a

temporary restraining order requiring the Secretary, his officers, employees, and

agents, all persons acting in active concert or participation, or under the supervision,

direction, or control of the Secretary, and all other persons within the scope of

Federal Rule of Civil Procedure 65, to extend the voter registration deadline until

October 16, 2018.


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Dated: October 9, 2018 Respectfully submitted,

/s/ Mark Herron Mark Herron Fla. Bar. No. 199737 [email protected] MESSER CAPARELLO 2618 Centennial Place Tallahassee, FL 32308 Telephone: (850) 222-0720 Facsimile: (850) 558-0659 and Marc E. Elias D.C. Bar No. 44207 (Admitted Pro Hac Vice) [email protected] PERKINS COIE LLP 700 Thirteenth Street, N.W., Suite 600 Washington, D.C. 20005-3960 Telephone: (202) 654-6200 Facsimile: (202) 654-6211

Counsel for Plaintiff




Plaintiff,


Defendant.

CASE NO.

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF’S

EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE

Pursuant to Federal Rule of Civil Procedure 65, Plaintiff Florida Democratic

Party (the “Party”) respectfully submits the following memorandum of law in

support of its emergency motion for a temporary restraining order and order to show

cause why a temporary restraining order and/or preliminary injunction should not

issue. Specifically, the Party moves for an order requiring the Secretary of State Ken

Detzner (the “Secretary”) to extend Florida’s voter registration deadline from

October 9, 2018 to October 16, 2018. Although the Secretary has issued a one-day

extension in certain, limited circumstances for some—but not all—voters, that

“solution” is not sufficient to protect the fundamental voting rights of Floridians.

Case 4:18-cv-00463-RH-CAS Document 3-1 Filed 10/09/18 Page 1 of 20

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The Secretary’s failure to adequately extend the deadline violates the First and

Fourteenth Amendments to the U.S. Constitution and the Equal Protection Clause.

I. NATURE OF THE CASE

In the absence of relief from this Court, thousands (and quite likely tens of

thousands) of Floridians will be unable to vote in the November 6, 2018 general

election for reasons beyond their control. Hurricane Michael is bearing down on the

Florida Panhandle today. Yesterday, Governor Rick Scott warned that “Hurricane

Michael is forecast to be the most destructive storm to hit the Florida Panhandle in

decades,” and urged Floridians to “take this very seriously.” 1 Vast numbers of

people heeded the Governor’s warning to take the storm seriously, and life in

affected areas—including the provision of government services—has come to a halt.

To be eligible to vote in the upcoming general election, Floridians must

register to vote by today—Tuesday, October 9. Late on October 8, 2018, the

Secretary issued Directive 2018-03 (“Directive”), which granted a limited one-day

extension for voters whose local registration offices are closed on October 9 and

who submit paper voter registration applications.2 The extension date varies from

jurisdiction to jurisdiction; the Directive specifies that it applies “the next day that

1 Gov. Scott: Michael Could Bring “Total Devastation” to Parts of FL; Mandatory Evacuations Ordered Along Panhandle, Weather.com (Oct. 8, 2018) https://weather.com/storms/hurricane/news/2018-10-07-florida-hurricane-emergency (last visited Oct. 8, 2018). 2 Directive 2018-03, https://www.flgov.com/wp-content/uploads/2018/10/Directive-2018-03.pdf (last visited Oct. 8, 2018).


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[the Supervisor of Election’s] office is reopened.”3 Voters whose local registration

offices are open on October 9, voters who wish to postmark their applications, and

voters who register online are still subject to the original October 9 deadline.

This limited, confusing, and inconsistent solution is not sufficient to

adequately protect the voting rights of Floridians. As a threshold matter, the

“solution” is not equally available to all Floridians: prospective voters who evacuate

may not be able to make it back to their home county in time to hand in a paper

application to their local office on the single extra day of registration the Directive

allows, whereas prospective voters in counties outside the evacuation zone may have

an easier time accessing the registration office. Moreover, the Directive fails to offer

any solution to voters who may attempt to register by mail: because the Directive

does not extend the deadline by which a voter may postmark an application, voters

who evacuate on Tuesday and are unable to return to their county on the one extra

day of registration that the Directive allows will be unable to register and vote.

Further, a prospective voter who evacuated likewise cannot register online after

October 9, but a counterpart who stayed in spite of an evacuation order may still

register in person at his or her local office if it is open. Additionally, voters may be

affected by the storm even if their local office remains open on October 9—the

Directive makes no provision for these voters. Moreover, the Directive ignores that

3 Id.


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voters may be affected by the storm even if their local office remains open on

October 9. Similarly, the Directive’s limited application to paper registrations

accepted in person does not acknowledge that internet and power outages may

undermine the availability of online registration across the state, or that voters who

wish to mail their registrations are subject to the original October 9 postmark

deadline. Simply put, a limited, one-day extension that applies arbitrarily from

county-to-county across Florida is no solution at all.

The Secretary’s failure to adequately extend the registration deadline will

disenfranchise thousands of voters. Registrations typically surge in the final days

before the registration deadline. The importance of the final days before the deadline

was further underscored in 2016 when a court-ordered weeklong extension of the

registration deadline (to accommodate disruption from Hurricane Matthew) resulted

in an additional 108,000 voter registrations.4

The Secretary can point to no countervailing state interest that justifies his

refusal to extend the registration deadline. Floridians should not be forced to forfeit

their voting rights as a penalty for simply living in the path of Hurricane Michael.

The Court should therefore order the Secretary to extend the voter registration

deadline until October 16, 2018.

4 Miami Herald, Surge of post-Hurricane Matthew voters breaks 100,000 mark, http://miamiherald.typepad.com/nakedpolitics/2016/10/surge-of-post-hurricane-voters-breaks-100000-mark.html (last visited Oct. 8, 2018).


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II. STATEMENT OF FACTS

A. Florida’s Voter Registration Deadline Is October 9.

To be eligible to vote in the upcoming November 6, 2018 general election,

prospective voters must register to vote by October 9—today. See id. §§ 97.053,

97.055, 97.0555. To register, Floridians can use the online voter registration system,

or complete a paper Voter Registration Application and deliver it, either in person

or by mail, to the office of the County Supervisor of Elections, the Florida Division

of Elections, or a third-party voter registration agency. See id.5

Florida’s Online Voter Registration (“OVR”) system allows eligible Florida

residents to register to vote or update an existing registration record online. Fla. Stat.

97.0525. To use the OVR system, however, residents must have a Florida driver’s

license or state identification card, and must provide the last four digits of their social

security number. Those who do not have a Florida driver’s license, state

identification card, or social security number may still use the OVR website to

complete a voter registration application, but must print, sign, and deliver it by mail

or in-person to their county Supervisor of Elections office. Florida Department of

State, Division of Elections, RegistertoVoteFlorida.gov, Frequently Asked

Questions, https://dos.myflorida.com/media/698341/ovr-faq-english.pdf. Further,

5 In Florida, an organization that has registered as a third party voter registration organization may collect completed voter registration applications from voters and deliver those applications to county election officials on the voters’ behalf. See id. § 97.0575(1).


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Florida residents who are participants in the Florida Attorney General’s Address

Confidentiality Program, which protect, inter alia, victims of domestic violence,

sexual harassment, and stalking, are instructed not to use the OVR, but to instead

contact their county Supervisor of Elections to register to vote. See

https://registertovoteflorida.gov/en/Registration/Index.

In addition, in the last 24 hours, at least some Florida residents attempting to

register to vote or update their voter registration online at RegistertoVoteFlorida.gov

experienced error messages that prevented them from completing a voter registration

transaction. The error, which was reported by users of social media6 and documented

on video by a Florida internet developer,7 appears after the registrant attempts to

submit their personal identification information. It is currently unknown how many

registrants have been prevented from registering due to the error.

6 See, e.g., https://mobile.twitter.com/beckster305/status/1049472930101547009; https://mobile.twitter.com/ChewbaccasMom/status/1049473897933037570; https://mobile.twitter.com/_saraicruz/status/1049476051884277761; https://mobile.twitter.com/oneluckybaxter/status/1049466329462394880; https://mobile.twitter.com/notorious_grace/status/1049436478525198337; https://mobile.twitter.com/tcw8848/status/1049470351749668864; https://mobile.twitter.com/AlexTheDood/status/1049459785974906880; 7 See Manifest Interactive, Florida Voting Website, Busted Again, available at https://vimeo.com/294051342 (Oct. 8, 2018). Earlier this year, the same internet developer in question previously alerted the Secretary to an error in the online voter registration system, which led the Secretary to make adjustments to the system. See Alexandra Glorioso, State fixes voter registration problem with simple updates, Politico.com, https://www.politico.com/states/florida/story/2018/07/23/state-fixes-voter-registration-problem-with-simple-updates-522370 (July 23, 2018).


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Further compounding the confusion, are Florida’s varied rules regarding when

a registration application has been timely received. Completed paper registration

applications that are submitted in person are considered delivered at the time the

applications are actually delivered to the elections official. See Fla. Admin. Code.

Ann. r. 1S-2.042(7)(a). Applications delivered by mail, in contrast, are considered

delivered as of the date they are postmarked, if a clear postmark is present on the

mailing envelope. See id. If no clear postmark is present, then the date of delivery

for mailed applications is the actual date of receipt. See id.

Interest in an impending election reaches its zenith as Election Day

approaches. Thus, Florida typically sees a surge in voter registration in the days

leading up to the voter registration deadline.

B. Hurricane Michael Has Caused Disruption of Services.

Hurricane Michael has caused widespread disruption in the days leading to

the October 9 voter registration deadline. On October 8, Governor Scott requested

that President Trump declare a pre-landfall emergency for the state.8 On the same

day, Governor Scott declared a state of emergency in 35 Florida counties. 9

Meanwhile, he deployed 500 Florida National Guard Members and ordered another

8 RICK SCOTT, FLGOV.COM, https://www.flgov.com/2018/10/08/gov-scott-requests-pre-landfall-disaster-declaration-extends-emergency-order/ (last visited Oct. 8, 2018). 9 RICK SCOTT, EXECUTIVE ORDER 18-277, https://www.flgov.com/wp-content/uploads/2018/10/SLT-BIZHUB18100810270.pdf (last visited Oct. 8, 2018).


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5,000 to be ready to deploy.10 As of the evening of October 8, evacuations have been

announced in Bay, Calhoun, Dixie, Franklin, Gadsden, Gulf, Hernando, Jackson,

Jefferson, Leon, Liberty, Okaloosa, Pasco, Santa Rosa, Taylor, and Wakulla

counties.11

C. The Secretary Orders an Inadequate and Haphazard Single-Day Extension.

On Monday, October 8, the Florida Democratic Party and the Lawyers’

Committee for Civil Rights Under Law asked the Secretary and Governor Scott to

extend the voter registration deadline. That night, the Secretary issued Directive

2018-03 (“Directive”), which granted a shifting one-day extension for voters whose

local registration offices are closed on October 9 and who submit paper voter

registration applications. 12 But this limited, confusing, and inconsistent solution

cannot adequately protect the voting rights of Floridians.

Even if prospective voters risk their safety to venture into the storm and

register today, they will likely encounter shuttered government offices and

unattended postboxes.13 Likewise, third party voter registration organizations that

10 Gov. Scott: Michael Could Bring ‘Total Devastation’ to Parts of FL; Mandatory Evacuations Ordered Along Panhandle, Weather.com (Oct. 8, 2018) https://weather.com/storms/hurricane/news/2018-10-07-florida-hurricane-emergency (last visited Oct. 8, 2018). 11 Evacuation Orders, https://www.floridadisaster.org/info (last visited Oct. 8, 2018) 12 Directive 2018-03, https://www.flgov.com/wp-content/uploads/2018/10/Directive-2018-03.pdf (last visited Oct. 8, 2018). 13 Voters who live in areas unaffected by the storm may still face hurdles to registration if their forms are to be mailed to the Department of Elections or another office that lies in an affected area.


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have gathered and are currently in possession of voter registration applications are

unable to deliver those applications to election officials due to the storm’s clear and

immediate threat. Under these extraordinary circumstances, the Secretary’s refusal

to adequately extend the voter registration deadline violates the fundamental voting

rights of Floridians.

Unfortunately, this is not the first time that the courts have been asked to

intervene because the Secretary has refused to adequately protect voting rights in

light of a major hurricane. In Fla. Democratic Party v. Scott, 215 F. Supp. 3d 1250,

1257 (N.D. Fla. 2016) (Scott), the Party brought a nearly identical suit against the

Secretary and Governor Scott seeking a registration extension in light of Hurricane

Matthew. The court issued an injunction extending the statewide registration

deadline by one week, id., and noting that “[t]hese voters have already had their lives

(and, quite possibly, their homes) turned upside down by Hurricane Matthew”; and

“deserve a break, especially one that is mandated by the United States Constitution.”

Id. at 1258.

III. ARGUMENT

A. Preliminary Injunction Standard

“A party seeking a preliminary injunction bears the burden of establishing its

entitlement to relief.” Scott v. Roberts, 612 F.3d 1279, 1289-90 (11th Cir. 2010).

“To obtain such relief, the moving party must show (1) a substantial likelihood of


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success on the merits; (2) that it will suffer irreparable injury unless the injunction

is issued; (3) that the threatened injury outweighs possible harm that the injunction

may cause the opposing party; and (4) that the injunction would not disserve the

public interest.” GeorgiaCarry.org v. U.S. Army Corps of Eng’rs, 788 F.3d 1318,

1322 (11th Cir. 2015).

B. Plaintiff is Likely to Succeed on the Merits.

1. The Secretary’s Actions Impose A Severe Burden on the Right to Vote Without Advancing Any State Interest.

“No 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 v. Sanders, 376 U.S. 1, 17 (1964). Accordingly, election laws burdening

that fundamental right are subject to searching judicial scrutiny. Scott, 215 F. Supp.

3d at 1256-57.

In Anderson v. Celebrezze, 460 U.S. 780 (1983) and Burdick v. Takushi,

504 U.S. 428 (1992), the Supreme Court laid out a “flexible standard” to resolve

constitutional challenges to state election laws that burden voting rights.

See Anderson, 460 U.S. at 789. “A court considering a challenge to a state election

law must weigh the character and magnitude of the asserted injury to the rights . . .

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


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the extent to which those interests make it necessary to burden the plaintiff’s rights.”

Burdick, 504 U.S. at 433-34 (quotation marks and citation omitted). When a

regulation subjects the right to vote to a “severe” restriction, the restriction “must be

narrowly drawn to advance a state interest of compelling importance.” Norman v.

Reed, 502 U.S. 279, 280 (1992). Less severe burdens remain subject to balancing.

But “[h]owever slight” the burden on the right to vote “may appear,” “it must be

justified by relevant and legitimate state interests ‘sufficiently weighty to justify the

limitation.’” Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 191 (2008)

(plurality) (quoting Norman, 502 U.S. at 288-89).

Here, if the October 9 voter registration deadline is not extended for a full

week, then thousands—potentially tens of thousands—of Floridians will be

completely disenfranchised. Many have been required to evacuate ahead of

Hurricane Michael, numerous government offices where they could register have

been closed, and internet and postal services through which could have registered

are likely to be disrupted. Thus, many Floridians who would have registered to vote

during the final days of registration will be unable to do so. Even the specific class

of voters who are granted a one-day extension under the Secretary’s Directive must

still return home in time, correctly ascertain when their local office is re-opening,

and pick their way through storm-ravaged streets to election offices in order to

register.


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Further, the Party is directly harmed because it has been forced to curtail its

typical voter registration drives due to disruptions from the storm. The Party

typically works with over 100 volunteers and staffers to perform voter outreach in

the days leading up to the registration deadline. This year, hundreds of voter

registration shifts will go unfilled due to evacuations and other storm

accommodations. As a result, prospective voters who must now navigate this

confusing and shifting set of hyper-local election deadlines will also need to do so

with less assistance.

The Secretary’s refusal to adequately extend the October 9 voter registration

deadline will result in voters’ automatic and total disenfranchisement. That sort of

categorical denial of the right to vote plainly amounts to a severe burden on the

franchise. See, e.g., Ayers-Schaffner v. DiStefano, 860 F. Supp. 918, 921 (D.R.I.),

aff’d, 37 F.3d 726 (1st Cir. 1994) (“A complete denial of the right to vote is a

restriction of the severest kind.”); see also NEOCH, 696 F.3d at 585-87 (“summary”

and “automatic” nature of disqualification of right-place, wrong-precinct ballots

suggests burden on right to vote is “substantial”).

In Scott, the court determined that “Hurricane Matthew not only forced many

[] voters to evacuate the state, but also foreclosed the only methods of registering to

vote” and “amounts to a severe burden on the right to vote.” Scott, 215 F. Supp. 3d

at 1257. So too, here; Hurricane Michael will not only disrupt the lives of Floridians,


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but will also impede them from voting. This burden is unquestionably severe. Id.

The Directive does not meaningfully mitigate these harms; it merely carves out a

small slice of population and offers them a thin reed of hope that they may be able

to register in time if they can navigate both the storm and the confusing terms of the

Directive.

Given the likelihood of total disenfranchisement for thousands of Floridians,

the Secretary must come forward with an interest that is “sufficiently weighty” to

justify enforcing the October 9 deadline and the Directive, and show that their

official actions are narrowly drawn to further that interest. Norman, 502 U.S. at 288-

89. He cannot do so. Like in Scott, “[i]n no way could Defendants argue that there

is some sort of limitation that requires them to burden the constitutional rights of

aspiring eligible voters.” Id. at 1257.

Simply put, the Secretary has not and cannot offer any valid reason for

refusing to extend the registration deadline by one additional week under these

circumstances, let alone a reason sufficient to justify disenfranchising thousands of

Floridians. Plaintiff is therefore likely to prevail on Count I of its Complaint.

2. The Directive Violates the Equal Protection Clause.

The Secretary’s Directive violates the Equal Protection Clause by treating

similarly situated voters differently. Specifically, the Directive unfairly and

arbitrarily favors some voters over others depending on geographic location and


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chosen method of registration. The Directive grants a one-day extension if, and only

if, (1) a prospective voter’s local registration office is closed on October 9, and (2)

the voter registers in person on the designated extension date using a paper

application. Prospective voters across the state who wish to register online, who must

evacuate on the October 9 and attempt to register by mail after that date, or whose

local offices remained open on October 9, are not granted any extension—regardless

of any difficult circumstances caused by the storm. The difference in treatment is

unfair and arbitrary. The Directive therefore violates the Equal Protection Clause of

the Fourteenth Amendment to the U.S. Constitution.

As the Supreme Court has explained, “[t]he right to vote is protected in more

than the initial allocation of the franchise. Equal protection applies as well to the

manner of its exercise. Having once granted the right to vote on equal terms, the

State may not, by later arbitrary and disparate treatment, value one person’s vote

over that of another.” Bush v. Gore, 531 U.S. 98, 104-05 (2000) (emphasis added).

But that is precisely what the Secretary proposes to do here: enforce the October 9

deadline in some instances but not others, resulting in precisely the kind of “arbitrary

and disparate treatment” the Supreme Court warned against.

Here again, Plaintiff’s claim is evaluated under the flexible standard of the

Anderson-Burdick test. See Ohio Democratic Party v. Husted, No. 16-3561, 2016

WL 4437605, at *4 (6th Cir. Aug. 23, 2016). The Secretary’s failure to adequately


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extend the voter registration deadline to account for the disruption on all Florida

voters by Hurricane Michael is an arbitrary and irrational distinction that will result

in the disenfranchisement of thousands of voters. It cannot be justified by the minor

administrative inconvenience (assuming any such inconvenience even exists) of

extending the statewide October 9 deadline to October 16. Plaintiff is therefore

likely to prevail on the merits.

C. Plaintiff Satisfies The Other Preliminary Injunction Factors.

1. An Injunction Is Necessary to Avoid Irreparable Harm.

There is no genuine dispute that the harm threatened here is irreparable.

If Florida voters are prevented from registering as a result of Hurricane Michael,

there is no way to cure that disenfranchisement. “This isn’t golf: there are no

mulligans. Once the voter registration deadline passes, ‘there can be no do-over and

no redress.’” Scott, 215 F. Supp. 3d at 1258 (citing League of Women Voters of N.C.

v. North Carolina, 769 F.3d 224, 247 (4th Cir. 2014)). Thus, courts have long

recognized that when an “abridgment to the voters’ constitutional right to vote” is

imminent, “irreparable harm is presumed and no further showing of injury need be

made.” Touchston v. McDermott, 234 F.3d 1133, 1158-59 (11th Cir. 2000); see also

Obama for Am. v. Husted, 697 F.3d 423, 436 (6th Cir. 2012) (“OFA”) (abridgement

of right to vote constitutes irreparable harm); Council of Alt. Political Parties v.


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Hooks, 121 F.3d 876 (3d Cir. 1997) (same); Williams v. Salerno, 792 F.2d 323, 326

(2d Cir. 1986) (same).

2. The Balance of Hardships Weighs in Favor of an Injunction.

It is equally clear that the balance of hardships favors Plaintiff and weighs in

favor of issuing emergency injunctive relief. Beyond minor administrative

inconvenience, it is difficult to see how the Secretary or the State of Florida would

suffer any harm if they were required to continue accepting registration applications

for additional time.

On the other side of the ledger, if deadline is not extended for a full week,

then thousands of voters in a critical swing state risk total disenfranchisement in a

hotly contested election. Under those circumstances, equity plainly favors Plaintiff.

Scott, 215 F. Supp. 3d at 1258 (“it would be nonsensical to prioritize [administrative]

deadlines over the right to vote”); see also Taylor v. Louisiana, 419 U.S. 522, 535

(1975) (stating “administrative convenience” cannot justify the deprivation of a

constitutional right).

In circumstances similar to those here, Florida has adjusted election and voter

registration procedures in the past without engendering electoral chaos. In 2016, the

voter registration deadline was extended for a full week. Scott, 215 F. Supp. 3d at

1256. Other states have taken similar action in the face of impending emergencies.

Over the past few days, South Carolina extended their registration deadline by ten


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days to accommodate destruction from Hurricane Florence. Extensions Announced,

WBTV (Oct. 7, 2018) https://www.wbtv.com/2018/10/07/extension-announced-

south-carolina-voter-registration-deadline/. In 2005, in the wake of Hurricane

Katrina, Governor Blanco of Louisiana used executive powers to postpone several

elections (and their respective qualifying periods). See La. Exec. Order No. KBB

2005-36, available at http://www.doa.louisiana.gov/osr/other/kbb06-02.htm. More

recently, in 2012, Hurricane Sandy struck the Mid-Atlantic coast days before the

general election. To preserve the rights of voters affected by Hurricane Sandy, New

Jersey, New York, and Connecticut postponed deadlines and took other common-

sense measures to prevent disenfranchisement.14 There is no good reason why

Florida cannot and should not follow suit.

3. An Injunction Is in The Public Interest.

The public has a paramount interest in elections where every eligible resident

may cast an effective vote. See Charles H. Wesley Educ. Found., Inc. v. Cox, 408

F.3d 1349, 1355 (11th Cir. 2005); see also LOWV, 769 F.3d at 248 (“[t]he public

14 In New Jersey, by executive order, any voter who was displaced was designated an “overseas voter” and permitted to submit a mail-in ballot. Directive Regarding Email Voting and Mail-in Ballots for Displaced Voters, available at http://nj.gov/state/elections/2012-results/directive-email-voting.pdf. The order also extended the deadline for those mail-in ballots. Id. In Connecticut, the October 30 voter registration deadline was postponed until November 1, a mere five days before the general election. In New York, any voter registered in a federally-declared disaster was allowed to vote by affidavit at any poll site in New York. Governor Cuomo Signs Executive Order to Facilitate Voting for New Yorkers Who Were Affected by Hurricane Sandy, New York State (Nov. 5, 2012), https://www.governor.ny.gov/news/governor-cuomo-signs-executive-order-facilitate-voting-new-yorkers-who-were-affected-hurricane (last visited Oct. 8, 2018).


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has a ‘strong interest in exercising the fundamental political right to vote.’” (quoting

Purcell v. Gonzalez, 549 U.S. 1, 4 (2006)); OFA, 697 F.3d at 437 (“The public

interest . . . favors permitting as many qualified voters to vote as possible.”). The

affected voters are those whose lives have already been interrupted (or worse) by

Hurricane Michael. Under the circumstances, an injunction allowing these voters to

participate in the upcoming election would only promote the public interest. The

Constitution guarantees the right of voters “to cast their ballots and have them

counted.” United States v. Classic, 313 U.S. 299, 315 (1941). And “[c]ementing

unconstitutional obstacles to “that right strike at the heart of representative

government.” Scott, 215 F. Supp. 3d at 1256 (quoting Reynolds v. Sims, 377 U.S.

533, 555 (1964).

IV. CONCLUSION

For the reasons stated herein, Plaintiff respectfully requests that the Court

enter a preliminary injunction requiring the Secretary, his officers, employees, and

agents, all persons acting in active concert or participation with the Secretary, or

under his supervision, direction, or control, and all other persons within the scope of

Federal Rule of Civil Procedure 65, to extend the statewide deadline15 for delivery

of voter registration applications to October 16.

15 There is no question that “[the hurricane’s] effects are not circumscribed to one region of the state;” rather, it affects “jobs, families, and more across the state.” Scott, 215 F. Supp. 3d at 1256. Statewide relief is therefore appropriate. Id.


19


/s/ Mark Herron Mark Herron Fl. Bar. No. 199737 [email protected] MESSER CAPARELLO 2618 Centennial Place Tallahassee, FL 32308 Telephone: (850) 222-0720 Facsimile: (850) 558-0659 and Marc E. Elias D.C. Bar No. 44207 (Admitted Pro Hac Vice) [email protected] PERKINS COIE LLP 700 Thirteenth Street, N.W., Suite 600 Washington, D.C. 20005-3960 Telephone: (202) 654-6200 Facsimile: (202) 654-6211 Counsel for Plaintiff


CERTIFICATE OF COMPLIANCE

Pursuant to Local Rule 7.1(F), I HEREBY CERTIFY that the enclosed

Memorandum of Law of Plaintiff Florida Democratic Party contains

approximately 6,000 words, which is less than the total words permitted by the

rules of court. Counsel relies on the word count of the computer program used to

prepare this memorandum.

Dated: October 9, 2018

/s/ Mark Herron Mark Herron





Plaintiff,


Defendant.

CASE NO. 4:18-cv-00463-RH-CAS

NOTICE OF SUPPLEMENTAL AUTHORITY

Since Plaintiffs filed their TRO Motion, ECF No. 3, seeking a week-long

extension of the voter registration deadline to ensure that voters are not

disenfranchised by Hurricane Michael and widely-reported issues with the State’s

online voter registration system (“OVRS”), additional facts have come to light,

providing further bases for issuing the TRO.

First, Hurricane Michael is gaining strength. As of this morning, it had

unexpectedly intensified into a Category 4 storm; it is now expected to be the

strongest hurricane on record to strike the region. Ex. A. Evacuation orders and

Case 4:18-cv-00463-RH-CAS Document 9 Filed 10/10/18 Page 1 of 3

2

closures have multiplied rapidly and six additional counties are under mandatory or

partial evacuation orders, bringing the total to 22. Ex. B; ECF 3-1 at 8.

Second, reports of serious problems with OVRS in the final days before the

voter registration deadline have mushroomed. Ex. C (voters encountering error

messages when attempting to register or update registration). Although the Secretary

has admitted that voters encountered unspecified “intermittent” problems on the

second to last day of the registration period, see id., reports of problems continued

from both voters and local elections administrators even after the State claimed they

were fixed, see Ex. D (“[T]housands of Floridians have told . . . elections supervisors

in recent days that the system isn’t working -- despite claims from the state that the

problems had been fixed and that the effort has been ‘immensely successful’”); Ex.

E (quoting supervisor on OVRS issues: “There’s an expectation from the citizens in

. . . Florida that they could register to vote online” but “the site was inoperable” the

weekend before the registration deadline); see also Ex. F, Ex. G. The Secretary still

has not responded to requests to extend the deadline to ensure that technology

failures do not deprive Floridians of their right to vote. Ex. H; Ex. I.

These widespread OVRS problems provide independent grounds for issuing

relief to extend the deadline and demonstrate why reliance on OVRS to ameliorate

disruptions from the hurricane, is not a sufficient remedy.


3

Relief is urgently needed to avoid widespread voter confusion and related

disenfranchisement.


/s/ Mark Herron Mark Herron Fla. Bar. No. 199737 [email protected] MESSER CAPARELLO 2618 Centennial Place Tallahassee, FL 32308 Telephone: (850) 222-0720 Facsimile: (850) 558-0659 and Marc E. Elias D.C. Bar No. 44207 (Admitted Pro Hac Vice) [email protected] PERKINS COIE LLP 700 Thirteenth Street, N.W., Suite 600 Washington, D.C. 20005-3960 Telephone: (202) 654-6200 Facsimile: (202) 654-6211



Hurricane Michael roared closer to the Florida Panhandle on Wednesday after intensifying into a

Category 4 storm, gaining strength just hours before it was poised to make landfall in the afternoon as

the strongest hurricane on record to strike the region. The storm has already begun lashing the Gulf

Coast area with tropical-storm conditions, and it threatens to be “potentially catastrophic,” according

to the National Hurricane Center.

See the latest forecasts here, a city-by-city guide here and the storm’s movement here.

11:03 a.m.: North Carolina governor declares emergency

North Carolina Gov. Roy Cooper (D) declared an emergency there ahead of the expected arrival of

Hurricane Michael.

Cooper’s announcement came after emergencies were declared in Florida, Alabama and Georgia as

Michael, a powerful Category 4 storm, churned closer to the Southeast. Cooper said 150 National

Guard troops would report on Wednesday afternoon and warned that the heaviest rains were expected

in his state on Thursday.

Michael is expected to make landfall in northwest Florida before moving north, and forecasters warn it

could bring punishing rain and wind with it into to Georgia and then the Carolinas, which are still

recovering from the deadly flooding brought on by hurricane Florence last month.

— Mark Berman

10:25 a.m. update: What Hurricane Michael looks like from space

Hurricane Michael: Category 4 storm begins battering Florida Panhandle... https://www.washingtonpost.com/news/post-nation/wp/2018/10/10/hurri...

1 of 5 10/10/2018, 11:36 AM


9:42 a.m.: “Hurricane Michael is a hurricane of the worst kind”

Federal officials said they are in position and prepared to help the Southeast respond to Hurricane

Michael, which they described as a particularly dangerous system.

“Unfortunately, Hurricane Michael is a hurricane of the worst kind,” FEMA Administrator William

“Brock” Long said at a news briefing Wednesday morning.

Long was grim in discussing the potential impact from Michael, which intensified Tuesday and

Wednesday into a Category 4 hurricane, a major storm with the potential to wreak havoc.

“Major hurricanes cause large losses of life and the most amount of destruction that hurricanes can

bring forward,” he said.

Hurricane Michael has already begun lashing northwestern Florida, and Long warned about the

“devastating storm surge” that would likely push through that region along with punishing winds.

Long also extended his warning to other parts of the Southeast, saying this could be the worst storm to

hit southwest and central Georgia in “many, many decades — and maybe ever. “The citizens in Georgia

need to wake up and pay attention,” he said. Beyond that, Long said, the storm could bring unwelcome

rainfall to parts of the Carolinas still recovering from the deadly flooding.

“It’s going to be a major hit,” Long said of the storm’s expected impact across the region.

— Mark Berman

9:10 a.m.: Florida governor: “Now is the time to seek refuge”

With Hurricane Michael’s outer bands already lashing northwest Florida, Gov. Rick Scott (R) on

Wednesday urged anyone in the storm’s path to seek shelter before the most damaging weather

arrived.

“This is the worst storm that our Florida Panhandle has seen in a century,” he said at a news briefing.

“Hurricane Michael is upon us and now is the time to seek refuge.”

Hurricane Michael had swelled to “an extremely dangerous Category 4 hurricane” on Wednesday

morning, the National Hurricane Center said, and its wind bands were already scraping across parts of

Florida. Forecasters have warned about a potentially devastating storm surge, along with punishing

winds and rains that could tear through the region on Wednesday and Thursday.


2 of 5 10/10/2018, 11:36 AM


Scott warned about the “unimaginable devastation” that could spread across the coastal regions,

warning residents to take the storm’s destructive capabilities seriously.

“It’s going to be horrible,” he said.

He said more than 3,500 Florida National Guard members had been activated, along with waves of

other first responders and officials preparing to respond to both the storm and its aftermath.

Residents and officials alike have said they were surprised by how quickly the storm came together,

particularly compared to the much slower approach of recent hurricanes like Irma last year and

Florence last month in the Carolinas. “This thing happened fast,” Scott said.

— Mark Berman

Rick Scott@FLGovScott

Just spoke with @POTUS to give him an update on Hurricane

Michael. He offered any federal resources necessary as we

prepare to respond to this massive and catastrophic storm.

8:14 AM - Oct 10, 2018

3,505 948 people are talking about this

8:55 a.m.: Fears of storm surge, heavy rain and powerful wind

Hurricane Michael’s approach continued early Wednesday as it trundled north toward the

northwestern Florida, a region largely shut down by evacuation orders, storm warnings and fears of

what the system could bring.

The National Hurricane Center warned that the storm could bring a devastating level of storm surge,

the swell of water pushed by a system’s winds. Hurricane Michael was “an extremely dangerous

Category 4 hurricane” on Wednesday morning, with maximum sustained winds up to nearly 145 mph

and some gusts higher, the hurricane center said in a bulletin.

Its strongest winds extended up to 45 miles from the center, and some parts of Florida were already

feeling its impact. Apalachicola Regional Airport recorded a wind gust of 56 mph, the center said.

The storm surge could push as high as 14 feet in some areas, the hurricane center said, but even

several feet of storm surge could be damaging or devastating to homes and some areas. The hurricane


3 of 5 10/10/2018, 11:36 AM


center also warned that the storm’s conditions would “spread well inland across portions of the

Florida Panhandle, southeastern Alabama and southwestern Georgia later today and tonight,”

threatening a wide swath of the Southeast.

See the latest forecast over at the Capital Weather Gang.

— Mark Berman

8:45 a.m.: Quiet in Panama City

PANAMA CITY, Fla. — Early Wednesday, Panama City Beach was desolate. The tourists had cut their

vacations short. Most hotels had evacuated. The restaurants and shops all across the waterfront

community were closed.

But not everyone was gone. Some residents of this popular beach town in northwest Florida, were

staying put, ignoring the pleas from officials to evacuate and dismissing the threat of an approaching

Category 4 storm. At Buster’s Beer & Bait, one of the last bars still open Tuesday night, the locals had

one spirited gathering recounting stories from past hurricanes and planning how they would use their

boats, kayaks and canoes to help with any search and rescue efforts. They took turns to singing the

wood covering the bar’s windows already marked with “Rock Me Hurricane 2018.”

“Welcome to the Hurricane party,” some said when new customers entered the bar. Across the way,

the waves grew higher and louder. By morning, rain was steady and winds were picking up. Tyler and

Heather Butler said they didn’t realize the storm would be serious until Monday, and decided to

hunker down at their Georgette Street home, just two miles from the beach. Their neighbors were also

staying, they said.

“There won’t be any power, no WiFi. We will play board games. We will be able to get time together,”

said Tyler Butler, 33. “It will be a good lesson for the kids to be appreciative of the things they have —

power, water, air conditioning. In a couple of days they will look back and say, ‘we made it through.’ It

will be a bonding time.”

— Luz Lazo

Further reading:

Tracking Hurricane Michael


4 of 5 10/10/2018, 11:36 AM


Shades of Opal: Here’s how Hurricane Michael compares to the devastating 1995 storm


5 of 5 10/10/2018, 11:36 AM


Mark Berman Mark Berman covers national news for The Washington Post. He also anchors Post Nation, The Post's

hub for news, analysis and the biggest stories happening across the country. He has been at The Post

since 2007 and previously covered transportation and local news. Follow W

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Emergency Info | Florida Disaster

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EMERGENCY INFO

Emergency Info

Gov. Scott: Federal Pre-Landfall Emergency Declaration Signed by the President and Updates

Watches and Warnings for Hurricane Michael

Latest track for Hurricane Michael

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PLAN &PREPARE

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Mandatory evacuation orders are now in place for zones A, B, and C.

Calhoun County - Voluntary/Phased

Mobile Homes and Low Lying Areas

Citrus County - Mandatory

Citrus County is under a Local State of Emergency and the declaration has been signed by the Citrus County

Board of County Commissioners for the immediate evacuation for the following: • Affected Evacuation Areas:

Zone A, and; • Mobile homes, RVs, manufactured housing countywide o For further information, refer to our

Evacuation Zone Map at www.sheriffcitrus.org or gis.citrusbocc.com/address-lookup.html. o This immediate

evacuation order takes effect Tuesday, October 9, 2018 at 9am.

Dixie County - Mandatory

Evacuation of coastal, zone A, low lying areas, and mobile homes at 0800 hours on 10/09/2018

Escambia County - Voluntary/Phased

Zone A includes Pensacola Beach, Perdido Key, and low-lying areas in Escambia County. If you live in a

mobile home or have special needs, you should consider evacuation no matter the zone in which you live.

Franklin County - Mandatory

Mandatory Evacuation will be begin at 8:00 am for the entire county

Gadsden County - Mandatory

Gulf County - Mandatory

MANDATORY EVACUATION At the 10:00 AM emergency board meeting a mandatory evacuation was

issued for the following areas: • All of Cape San Blas • All of Indian Pass area • Simmons Bayou, Highland

View • Windmark • In the City of Port St. Joe all areas from St. Joseph Bay to Long Avenue. • St. Joe Beach

and Beacon Hill – Waterside of Hwy. 98 • Those with high profile vehicles, living in mobile homes, low lying

areas, or anyone who feels unsafe in their current location must evacuate COUNTYWIDE All of these areas

must be evacuated within 24 hours of this notice. Critical Businesses in those areas may remain open until

12 00 PM ET T d O t b 9 2018 VOLUNTARY EVACUATION H 98 I l d St J B h d




Levy County - Mandatory

Evacuation Ordered for Coastal Levy County. Please go to www.levydisaster.com for more information

Liberty County - Voluntary/Phased

Voluntary evacuations for mobile homes, sub standard housing and low lying areas.

Madison County - Voluntary/Phased

Mobile Homes and Unsafe Structures

Okaloosa County - Mandatory

Okaloosa County Evacuation Start at 5:00pm for voluntary, then mandatory at 08:00 Tuesday morning

Pasco County - Voluntary/Phased

Low lying, mobile homes, flood prone, storm surge areas

Santa Rosa County - Voluntary/Phased

Voluntary evacuations for mobile home parks, campsites, low-lying areas, and Navarre Beach.

Taylor County - Mandatory

Mandatory evacuation of all coastal and low lying areas of Taylor County.

Wakulla County - Mandatory

Mandatory Evacuation order for Zone A (coastal and low lying areas)and Mobile Homes and other weak

structures the remainder of Wakulla County will be under a voluntary evacuation order. The evacuation orders

will start effective at 8 pm this evening (October 8th). Citizens that are evacuating should evacuate to an area

outside of the storm’s path. Neighboring counties will also be in the storm’s path and there for at risk. THERE

WILL BE NO SHELTERS OPENED IN WAKULLA COUNTY.

Walton County - Mandatory

Mandatory Evacuations for Zones A and B.

Washington County - Voluntary/Phased

Voluntary Evacuations are encouraged. The following information is being circulated on social media and to

our media outlets. With Hurricane conditions likely in Washington County beginning early Wednesday


https://levydisaster.com/content/files/Hurricane%20Michael%20Evacuation%20Order%20%231.pdf



County Emergency Management

County Emergency Management - county emergency management contacts and websites

Alert Florida - sign up to receive emergency alerts and other public safety notifications in your community

Debris Reporting

Public Debris Reporting Tool - Florida Public Debris Reporting Tool can be used to report significant debris

impacting your community.

Get A Plan

Get a Family or Business Plan by visiting Get A Plan!. This tool allows you to build a downloaded plan for

your family and/or business with a preparedness checklist, emergency management contacts,

Know Your Zone

All Florida coastal counties and counties along the St. Johns River are susceptible to storm surge and most

have designated evacuation zones. Use the mapping tool above to search by address and determine if you

are in a designated evacuation zone.


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Florida 511 - Get up-to-the-minute, real-time traffic conditions and incident information for the State of Florida

with Florida 511.

FEMA - mobile app

Red Cross - mobile apps

Power Outages

Power Outage Details

Restoration Information

Private Sector Coordination

The Florida Department of Economic Opportunity has activated the Private Sector Hotline at 850-815-4925.

The hotline is available for business inquiries about the storm, preparedness information and post-impact

information.

FLORIDADISASTER.BIZ - To help Florida businesses prepare for and recover from hurricanes and other

disasters


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VISIT Florida has activated the Expedia/VISIT Florida Hotel Accommodation Web Portal

Traffic

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with Florida 511.

Florida Highway Patrol - Florida Highway Patrol Live Traffic Crash and Road Condition Report. Reports are

updated every five minutes. Incidents located within city limits also may not show on the map since it is not

common practice for FHP to work incidents inside city limits.

Florida Traffic - Traffic incidents and conditions from Florida 511 and Florida Highway Patrol brought to you by

Florida State Emergency Response Team Geographic Information Systems.

State Assistance Information Line -- 800-342-3557

The Florida State Assistance Information Line (SAIL) is a toll-free hotline activated at the time of an

emergency to provide an additional resource for those in Florida to receive accurate and up-to-date

information regarding an emergency or disaster situation impacting the State of Florida. SAIL is currently

activated and available 24 hours/7 days a week.


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Hermine Recovery

Latest from Twitter

FLSERT Information @FLSERT - Oct 10

#HurricaneMichael will produce life-threatening storm surge. A car will NOT be enough to protect

you. #TurnAroundDontDrown https://t.co/HeweK43AaW

FLSERT Information @FLSERT - Oct 10

10-10 0900 #Michael Power Outage Report https://t.co/WE397fg6iv


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10/10/2018 ACLU, Lawyers Committee sue to extend FL voter registration | Miami Herald

https://www.miamiherald.com/news/politics-government/state-politics/article219732785.html 1/8

STATE POLITICS

Citing Michael and online glitches, groups sue toextend voter registration deadline

BY CAITLIN OSTROFF AND STEVE [email protected]

Herald/Times Tallahassee Bureau

October 09, 2018 02:52 PMUpdated 2 hours 6 minutes ago

That huge swirling menace in the Gulf known as Hurricane Michael has the attention of Floridiansfour weeks before Nov. 6, Election Day.

But a disturbance of another kind is intensifying, and it involves voting.


https://www.miamiherald.com/news/politics-government/state-politics/

mailto:[email protected]

https://www.miamiherald.com/



Two controversies erupted at once Tuesday, one over a state online voter registration system andthe other involving the storm’s disruption of the last day that Florida residents could becomeeligible voters in 2018.

Complaints multiplied from people who say the state’s online registration portal was not working.The portal, which was a year old on Oct. 1, has had glitches before but never this close to a voterregistration deadline, and it prompted threats of legal action.

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“It’s extremely troubling. This is one moment where the states’ online systems need to operate,”said Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil RightsUnder Law.

Early Wednesday morning, the Lawyers’ Committee for Civil Rights Under Law, the ACLU andACLU Florida filed an injunction in federal court requesting an extension of the voter registrationdeadline due to the hurricane and glitches experienced by some on the registration website. Theinjunction asks that the voter registration deadline be extended at least one week statewide.

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A screen shot of the state’s online voter registration portal Tuesday.

Gov. Rick Scott’s chief elections official, Secretary of State Ken Detzner, denied on Tuesday thatany problems with the system existed.

“Online voter registration is fully functioning at this time and people are successfully using thesite to register to vote or to update their current registration,” said Detzner’s spokeswoman, SarahRevell.

Revell said it was possible that the website “may be a little slow” due to a high traffic volume. OnTuesday alone, she said, more than 11,500 people accessed the site before 1 p.m. Eastern time.

Revell said there were “intermittent” problems with the system Monday but they were fixed. Shedid not say what the problem was, or how it was resolved.

Daniel Perez, a suburban Tampa voter, said he found an error page at about 11:20 a.m. Tuesday.The problem went away, he said, but the address field deleted itself after he clicked out of it.

“I’ve never had any issues up until now,” Perez said. “It’s just weird.”

Last Friday, Kevin Davis issued a reminder about the various states’ voter registration deadlines tothe 40 men he oversees at Grand Forks Air Force Base in North Dakota.

Davis, a Florida resident, said he began hearing that a few of the men in his systems operationsunit were getting error messages on the state website.

READ MORE

Are you registered to vote in the Nov. 6 election? The deadline is now.


https://www.miamiherald.com/news/local/article219691590.html#storylink=readmore_inline

https://www.miamiherald.com/news/local/article219691590.html#storylink=readmore_inline



While watching the Saints-Redskins football game Monday night, he said, he tried to update hisown record and received the error message.

If the men in his unit can’t register, they can’t vote.

“A lot of them are young, so this is their first time voting,” Davis said.

The online system was created by the Florida Legislature on the recommendation of countyelection supervisors as another option for people to register or to update their record if they’vemoved or changed their name.

Florida has a rich history of razor-close elections, and polls show very tight races for governor andU.S. Senate. Both parties are working feverishly to get their base supporters to cast ballots inFlorida’s triple-option voting system, where people vote by mail, early or in person on ElectionDay.

The fast-approaching storm’s disruption of the last day of voter registration prompted Scott’sadministration to extend the registration deadline by one day, but only in those counties thatplanned to close all or part of Tuesday because of the hurricane.

“It’s the right remedy. I think it makes pretty good sense,” said Supervisor of Elections Paul Luxin Okaloosa County, which closed at noon Tuesday and plans to reopen Thursday morning.

But it wasn’t enough for the Florida Democratic Party, which filed a federal lawsuit Tuesday toextend the registration deadline by a full week.

Democrats called Detzner’s one-day proposal insufficient and confusing and said it fails to protectFloridians’ voting rights.

If Detzner doesn’t extend the deadline by a week in the affected areas, the Democrats said,“thousands of eligible voters will be disenfranchised.”

The Democrats’ lawsuit was filed in U.S. District Court in Tallahassee, the same court that twoyears ago ordered a six-day extension of the voter registration deadline because of widespreadevacuations Scott ordered during Hurricane Matthew.

That order was issued two years ago this week by U.S. District Judge Mark Walker, who wrote:“No right is more precious than having a voice in our democracy.”




Then there’s the hurricane, which has enough power to damage or destroy polling stations justfour weeks before a critical statewide election and two weeks before the start of early voting inmany counties.

“The biggest concern is damage to our precincts that could make them unusable,” Lux said.

COMMENTS


10/10/2018 'A mess': Florida's online voter-registration system panned

https://www.politico.com/states/florida/story/2018/10/09/a-mess-floridas-online-voter-registration-system-panned-641953 1/5

M AGA Z I N E T H E AG E N DA P R O

Ever since the 2000 butterfly ballot fiasco, big Florida elections have almost always been close contests andhave been marred by controversies that have made the state an occasional laughingstock. | SpencerPlatt/Getty Images

'A mess': Florida's online voter-registration system panned

By MARC CAPUTO | 10/09/2018 06:05 PM EDT

As a hurricane threatened Florida, Gov. Rick Scott balked at extending Tuesday’s voterregistration deadline for a week as Democrats want, in part because the state has an onlinesystem to sign up new voters.


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But thousands of Floridians have told some elections supervisors in recent days that thesystem isn’t working — despite claims from the state that the problems had been fixed andthat the effort has been “immensely successful.” “A mess!” Palm Beach County Elections Supervisor Susan Bucher told POLITICO by email.

Florida Democrats are suing Scott’s secretary of state, Ken Detzner, in federal court toextend Florida’s voter registration deadline, which is Tuesday, for at least a week due to theapproach of Hurricane Michael.

“We have had hundreds of complaints about the system being down or intermittent allweekend. On 10/6/18 we only received 1 online voter registration, which is highly unusualas we usually get hundreds,” Bucher said. “We have lines in our office and have fieldedmore than 1,500 calls this morning which is an unusually high volume.”

The controversy erupted in Florida as a hurricane brewed nearby and just a month beforethe election in which Scott faces Sen. Bill Nelson (D-Fla.), who is seeking is third term.Democrats have accused Scott of engaging in voter suppression over the years — a claim hehas denied — and at the least have used the voter registration glitches and deadlinecontroversy as a way of ginning up attention to get more voters registered.

A spokeswoman for the state's elections division, Sarah Revell, said the site "has beenimmensely successful since it launched last year and has resulted in more than 54,000 newregistered voters."

"Today, the website has experienced an extremely high volume of traffic and it has causedsome users to experience issues while others were able to use the site with no problems,"Revell said via email, saying that more than 21,700 people had used the site Tuesday toregister to vote or update an application. "The site was never down and the issues wereintermittent. All issues have been resolved and the site is operational."

Bucher, however, said her office experienced problems even after the state said it fixed theproblem.

Bucher said she has “sent many emails to Maria Matthews, Div. of Elections Directorasking if we should continue to send our citizens to their www.RegisterToVoteFlorida.govsite and no answers. Maria said she was not at her desk as she is answering calls from theirhotline.”


https://cd.politicopro.com/member/51221



Late Monday, Detzner issued a directive to slightly extend voter registration in the 35counties that have declared a state of emergency and where the elections offices closed dueto the storm. When the offices reopen, Detzner’s order said, people will have an extra dayto register to vote.

“The Department’s efforts to launch voter registration online have been successful withmore than 40,000 people utilizing this new tool to register to vote or update their voterregistration online during the past week,” Detzner wrote Monday.

Earlier in the day, at a press conference in Pasco County, Scott told reporters that “rightnow, everybody can register online. You weren’t able do that before.”

Ever since the 2000 butterfly ballot fiasco, big Florida elections have almost always beenclose contests and have been marred by controversies that have made the state anoccasional laughingstock. The 2016 presidential election — which President Donald Trumpat one point falsely claimed was subject to fraud — went off without much trouble. Butofficials say Russian-linked hackers tried to interfere with Florida election systems, andSen. Marco Rubio has warned that hackers might try to manipulate voter registrationsystems to cause chaos on Election Day.

Aaron Krolik, a 40-year-old Delray Beach resident, told POLITICO that he wasn’t able touse the online system Tuesday without lots of help.

“It was just hell. The website was just not working. I emailed and called and had to spendtime getting it fixed,” Krolik said. “This is why people don’t participate. It’s a hassle andvoting should be a natural right.”

Krolik said he became even more frustrated when he learned that he didn’t need to use thesite at all on Tuesday because he was merely updating his change of address, not switchingparties or registering to vote for the first time.

Of the state’s 67 elections supervisors, 18 responded to an inquiry from POLITICO. Elevenreported anywhere from one to a handful of complaints or issues with the online voterregistration system, six reported no cases and two reported a significant number.

Before Detzner issued his directive, social justice advocate Samuel Sinyangwe posted avideo on Twitter Monday to prove the online site wasn’t working. After the state said theproblem had been fixed, more people reported problems, leading Sinyangwe to say thestate “lied.”


https://cd.politicopro.com/member/151820

https://twitter.com/samswey/status/1049458987287105537



Citrus County’s elections supervisor Susan Gill told POLITICO that the director of thestate’s elections division, Maria Matthews, told her that “there is a high volume of traffic onOVR [online voter registration], which is a good thing, but consequently there is a lagbetween data fields entries such as in the automatic address field lookup.”

The experience of accessing the online system appears to vary from person to person andcounty to county. But many had at least one complaint.

“I personally logged into the system and successfully completed an OVR application a littleafter 1:00 today,” said Marion County’s elections supervisor Wesley Wilcox, summing upthe experience of seven other supervisors who returned emails to POLITICO. “It was fairlysluggish, but I did complete the process.”

But in Collier County, the elections supervisors office encountered trouble.

“Since around noon, we began receiving an increase of calls regarding individuals havingdifficulty registering online, particularly when they get to the area to enter the address,”said spokeswoman Trish Robertson. “We ran some tests and are coming up with the samedifficulty. Unfortunately, we do not host the website, but we are encouraging our voters tocontact our office for alternative voter registration methods to ensure they are registeringby the deadline.”

Pasco County’s elections supervisor Brian Corley said “several constituents” reached out tohis office due to trouble Monday night. He said the state elections division told him theproblem was “intermittent” but was functioning overall. Then, on Tuesday, morecomplaints came.

“Unsure of how widespread the issues are statewide but we have definitely seen issues inPasco,” Corley said.

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10/10/2018 Bucher cites website glitches in bid for voter registration extension

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Bucher cites website glitches in bid for voter registrationextension

LOCAL By Alexandra Seltzer - Palm Beach Post Staff Writer

Updated: 6:05 p.m. Tuesday, October 09, 2018 | Posted: 4:48 p.m. Tuesday, October 09, 2018

A hurricane and apparent technical glitches on Tuesday fueled two separate requests for anextension to the state’s voter registration deadline — one of those by Palm Beach County’s electionsupervisor, Susan Bucher.

As Hurricane Michael took aim at the state’s panhandle, the Florida Democratic Party asked thestate to extend the voter registration deadline by at least one week. In Palm Beach County, Bucher

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Supervisor of Elections Susan Bucher oversees her employees as they hand count votes during a recount in the Boca Raton CityCouncil Seat A race Friday, August 31, 2018. (Lannis Waters / The Palm Beach Post)


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also asked for an extension because, she said, the state’s website had technical issues that shesuspects prevented potential voters from registering online.

Read: LIVE BEACH CAM: Florida Panhandle braces for Hurricane Michael

Bucher said the online voter registration system, which is administered by the state, appears tohave been down over the weekend and was working “intermittent” on Tuesday. Bucher said sheasked the state Division of Elections for a “general” extension to the deadline, which was Tuesday.She was told the department is having information technology staff investigate the matter, but wasnot given an answer to her request.

The county’s elections office typically receives “several hundred” registrations per day. But onSaturday, the office received just one online application, Bucher said.

“There’s an expectation from the citizens in the state of Florida that they could register to voteonline. Apparently a lot of people waited until this weekend to do that and the site was inoperable,”Bucher said.

Related: Want to vote? Today is the deadline to register — here’s how

The state, however, said Tuesday evening the site was never down and issues were intermittent. Allproblems have been resolved, said Sarah Revell, the state’s communications director.

“Today, the website has experienced an extremely high volume of traffic and it has caused someusers to experience issues while others were able to use the site with no problems,” Revell said in astatement.

She said more than 21,700 residents successfully used the site.

The state’s RegisterToVoteFlorida.gov website was launched last year as part of a 2015 law thatrequired online registration be available by Oct. 1, 2017.

If online registration isn’t working, voters-to-be could have brought their forms to one of the electiondepartment’s offices or had it postmarked for mail by Tuesday.

Still, Bucher said the state should extend the deadline due to the issues with the website.

“If somebody can’t take off work and go take their voter registration to one of (the offices) or get itpostmarked they have been disenfranchised,” Bucher said.


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All Voting is Local and other voting rights groups have called on Ken Detzner, Florida’s secretary ofstate, to extend the voter registration deadline by one week to Oct. 16 because of the websiteglitches and the hurricane.

“With a life-threatening storm churning toward Florida, voters must be granted more time to registerto vote and extending the voter registration deadline is a sensible way to ensure residents not onlyremain safe, but that their voices can be heard on Election Day,” Dan Horton, Florida state directorfor All Voting is Local, said in a statement. “Reports of problems to the state’s online voterregistration system only underscore that it is imperative voters have more time.”

The state’s Democratic Party on Tuesday filed a lawsuit against Detzner asking the U.S. DistrictCourt for the Northern District of Florida to extend the registration deadline saying if an extensiondoes not happen, “thousands of eligible voters will be disenfranchised.”

The lawsuit says Detzner’s proposal of a single-day registration extension in some counties isn’tgood enough.

“Florida voters, however, face a daunting and, indeed, life- threatening obstacle to registering tovote in the form of Hurricane Michael, a massive and dangerous weather event that has threatenedFlorida with substantial damage and disruption,” the lawsuit reads.

Gov. Rick Scott declared a state of emergency early this week and, on Monday, ordered residents inMichael’s path to evacuate.

Extending the registration deadline in wake of a storm isn’t uncommon. A federal judge in October2016 ordered voter registration in Florida extend about a week because of Hurricane Matthew.

ALEXANDRA SELTZER

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Samuel Sinyangwe@samswey

Oct 9

-state says they fixed the site now -hasn’t said what the problem was -hasn’tsaid how long site was down -hasn’t said how many voters affected -hasn’tsaid whether they’ll notify people affected or extend deadlinetwitter.com/samswey/status…View details ·

Vote November 6th@dannythenanny

Replying to @samswey

This is wild! They may have claimed to “fix” the issue but I tried to help a few friendsregister/check their status and got this message. This was at 11:31am (after they hadclaimed it was fixed)!! pic.twitter.com/59yhBP5bpV8:51 AM - 9 Oct 2018


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0 Samuel Sinyangwe e @samswey

We've now heard from several people that Florida's online voter registration site is NOT lett ing people register to vote. FL registration dead line is TOMORROW to vote in the Midterms. @mrmidi recorded the error here. This is voter suppression. The state must EXTEND the deadline.

Aorida Voter Registration Site Broken

5:38 PM· 8 Oct 2018

14.444 Retweets 17,454 Likes

o .. , U 1« O rn,

A Samuel Sinyangwee @samswey · Oct 8 v

W First saw reports today that the site wasn'~ letting people register to vote here. Then we did some tests, which show the Site is defirutely broken.

text VOTER to 26797 @notorious_grace hello @FlGovScott and the rest of Florida's DUMB ASS government it's a little strange to me that the online voter registration seems to have an error

every time i try to submit a new voter registration. tomorrow's the last day to register- what's the deal?

Show this thread

0 13 naos C) u1<

A Samuel Sinyangwee @samswey · Oct 8 v W Months ago, we found a similar error on the Site and got the state to (at least temporarily) fix it That was right before the deadline to register for the primary.

And now it's preventing people from registefing to vote in the general election.

§#§" .. "'T Samuel Sinyangwee @samswey

rve heard from multiple peopk> in Florida that the state's

onllne registration page isn't letting them register to vote. All eligible residents. All got error messages. I called the

state's voter assistance hotline and they said nothing' ...

o 14 n 979 o 1.41<

0 ~mue4 Siny,1ngwee @samswey • ()ct 8 V

"Meanwhile" we've sent more than 13,000 young people to register to vote on lhe site this past weetc. Literally lhousands of young people will be preven1ed from being able to register to vote rf the site remains down and they do not extend the registration deadline!

o ss n 976 o ,.,"

cbvid levin Ob1911v2112 , Oct 8

Replying to Csamswey Cnvmtd, they dont have same day registration? why??

0 11 n 14 C) 93

Michelle (Grabon) Do1vidson Cmtehedav Oct 8

Very few states do have same-day registrabon.

0 3 n, C) 130

cbvid levin Ob191rv2112 · Oct 8 i am an election judge in minnesota-we usualty lead the nabon in voting._we have it..shoukt be unrversaL

0 19 n" C) . ..

Michelle (Grabon) Davidson Cmtehedav Oct 8 I agree. In New England where I all\ only Vermont has it.

0 14 ns C) 67

Maitt Kaiser CMattKa1serOsgn · Oct 8 NH also has same day registration. actually.

0 3 U 4 C) 73

October 9, 2018 The Honorable Ken Detzner, Secretary of State Florida Department of State R.A. Gray Building 500 South Bronough Street Tallahassee, FL 32399 Dear Secretary Detzner, As Hurricane Michael threatens to strike Florida, we the undersigned organizations write to request that the Florida Department of State extend the voter registration deadline to October 16, 2018, so that every eligible voter has the opportunity to register without burden. On October 8, 2018, Governor Rick Scott declared a state of emergency in preparation for Hurricane Michael, a Category 3 hurricane expected to hit Florida. In a press conference, Governor Scott stated that “Hurricane Michael is forecast to be the most destructive storm to hit the Florida Panhandle in decades.” In response to the threat posed by the hurricane, on October 8, 2018, your office issued Directive 2018-03, authorizing Supervisors of Elections whose offices are closed to accept paper voter registration forms when they reopen. We respectfully request that you expand your directive extending the book closing deadline to cover the entire state of Florida, and to include the opportunity to register to vote online until that date. We further request that you extend the book closing deadline to October 16, 2018, consistent with the one-week extension ordered to address the impacts of Hurricane Matthew, which hit the state in 2016. The effects of a Category 3 hurricane can be devastating to residents, communities, travelers, and public utilities. These effects impact the residents of the hurricane zone and other Floridians that may suffer a loss of services and serious travel delays. As residents attempt to flee from the storm, serious traffic problems are likely to affect anyone traveling to, from, or through the

1


hurricane zone. Many residents are likely to be without electrical power. Other residents will be unable to contact public agencies and other service providers that are impacted by the hurricane. Mandatory evacuations began across Florida yesterday, on October 8, 2018. Eligible voters who are displaced by the storm will be separated from documentation needed to register to vote. On October 12, 2016, a federal court ordered the Department of State to extend the voter registration deadline, statewide, by one week. As Judge Walker noted in that case, extending the registration deadline “is about the right of aspiring eligible voters to register and to have their votes counted. Nothing could be more fundamental to our democracy.” Further, Judge Walker 1

wrote, the effects of a hurricane are “not circumscribed to one region of the state. It affect[s] 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.” Indeed, following a court order earlier this month, South Carolina’s registration deadline was extended statewide to October 17, 2018, to address the impacts of Hurricane Florence. The impacts on voter access by refusing to extend the deadline today, across the State of Florida, in light of Hurricane Michael cannot be overstated. During the additional week the voter registration deadline was extended in Florida in 2016, 108,000 Floridians registered to vote across the state. In addition to the impacts of Hurricane Michael, our organizations have received credible reports that Florida’s Online Voter Registration (“OVR”) system has been plagued by troubles in the final days before book closing, akin to what voters experienced in advance of the August primary voter registration deadline. Voters throughout Florida have been reporting since at least Monday, October 8, 2018 that they are receiving error messages when attempting to register to vote online. Florida saw problems with the OVR system earlier this year, shortly before the book closing deadline for the August primary, when voters were unable to register due to an error in the coding of the site. As you are aware, OVR systems are frequently plagued by unanticipated problems when they are first adopted. In 2016, Virginia’s new OVR system crashed on the day of the registration deadline, prompting a federal lawsuit and court-ordered extension of the deadline. 2

1 Florida Democratic Party v. Scott, 215 F.Supp.3d 1250 (N.D. Fla 2016). 2 “Federal lawsuit filed in Virginia”, Oct. 19, 2016, https://www.cnn.com/2016/10/19/politics/federal-lawsuit-filed-in-virginia-on-voter-registration-system-crash/index.html

2


https://www.cnn.com/2016/10/19/politics/federal-lawsuit-filed-in-virginia-on-voter-registration-system-crash/index.html






Since last year, Access Democracy, one of the undersigned organizations, has made repeated public records requests for information pertaining to the security and stability of the OVR system. Your office has not granted these requests. And just last week, All Voting is Local and Access Democracy wrote a letter to the Secretary of State warning that high traffic to the website could burden voters and the state should consider extending the registration deadline should 3

problems arise. Because of the dual challenges facing voters due to Hurricane Michael and the problems with the OVR system, we respectfully request that your office immediately take the following steps:

1) Extend the book closing deadline to 11:59 p.m. on October 16, 2018 in all 67 Florida counties, permitting voters to submit registration applications online and on paper, including at Supervisors of Elections offices, driver license offices, all NVRA agencies, and any other site that offers voter registration services.

2) Extend the days and hours that your office’s technical support hotline for voters remains open, to 11:59 p.m. on October 16, 2018, so that voters may obtain assistance with submitting a registration application or updating their registration online. Hotline operators should be available to answer questions from voters in both English and Spanish.

3) Provide Supervisors of Elections offices in the 35 counties under a state of emergency with additional resources -- including funding for temporary workers -- to process paper voter registration applications. This will ensure that voter registration lists are fully up-to-date in time for the start of early voting on October 22, 2018.

4) Communicate to voters through social media, television and radio public service announcements (PSA’s), the press, and other channels about their right to register to vote until October 16, 2018 at any public office that offers voter registration services, including those that are not in their home county. This outreach should be conducted in English and in Spanish.

Florida’s voters deserve to have their voices heard this election and they deserve a smooth registration process to ensure they can cast a ballot. As Hurricane Michael gains strength, residents must prioritize preparing for the storm. To ensure their safety and that they can be certain they have a voice on Election Day, it is imperative that your office give voters across the state more time to register to vote, no matter where they live, ensuring voters in all counties have fair and equitable access to the ballot. Sincerely,

3 https://allvotingislocal.org/wp-content/uploads/2018/10/FL-OVR-Letter-FINAL.pdf

3


https://allvotingislocal.org/wp-content/uploads/2018/10/FL-OVR-Letter-FINAL.pdf



Access Democracy, A Project of The Leadership Conference Education Fund Advancement Project African American Ministers In Action All Voting is Local - Florida American Civil Liberties Union ACLU of Florida American Constitution Society The Andrew Goodman Foundation Asian Americans Advancing Justice - AAJC Asian American Legal Defense and Education Fund (AALDEF) Asian and Pacific Islander American Vote Campaign Legal Center Campus Vote Project Color Of Change Common Cause Common Cause Florida Community Voters Project Demos Emgage Florida Fair Elections Center Florida AFL-CIO Florida Immigrant Coalition Keys Advocacy Center, Inc. LatinoJustice PRLDEF Lawyers' Committee for Civil Rights Under Law The Leadership Conference Education Fund Mi Familia Vota NAACP Legal Defense and Educational Fund, Inc. National Bar Association National Commission for Voter Justice National Council of Jewish Women- Florida New Florida Majority NextGen Florida People For the American Way Foundation Public Citizen Rock the Vote Service Employees International Union (SEIU)

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Service Employees International Union Florida State Council Transformative Justice Coalition United Church of Christ, Justice and Witness Ministries Voting Rights Alliance cc: Mr. Paul Lux, President, Florida State Association of Supervisors of Elections Ms. Maria Matthews, Division Director, Elections, Florida Department of State Mr. Brad McVay, Interim General Counsel, Florida Department of State

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https://mobile.twitter.com/KristenClarkeJD/status/1049484852133851137/photo/1[10/10/2018 1:45:01 PM]

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Kristen Clarke @KristenClarkeJD

BREAKING: We’ve issued a notice letter to #Florida election officials calling for anextension of the state’s voter registration deadline. We will keep fighting to ensure allvoters are able to participate in #Midterms2018 despite #HurricaneMichael & otherbarriers. @LawyersComm pic.twitter.com/IyqYdWY3j97:21 PM - 8 Oct 2018

TwitterBy: Kristen Clarke @KristenClarkeJD


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in the united states district court for the ......2018/10/09 · florida panhandle today....

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