Namphy v. DeSantis

• Decision Date: 09 October 2020
• Docket Number: Case No.: 4:20cv485-MW/MAF
• Citation: 493 F.Supp.3d 1130
• Parties: Augusta Sandino Christian NAMPHY, Dream Defenders, New Florida Majority, Organize Florida, and Florida Immigrant Coalition, Plaintiffs, v. 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.
• Court: U.S. District Court — Northern District of Florida

493 F.Supp.3d 1130

Augusta Sandino Christian NAMPHY, Dream Defenders, New Florida Majority, Organize Florida, and Florida Immigrant Coalition, Plaintiffs,

v.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.

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

United States District Court, N.D. Florida, Tallahassee Division.

Signed October 9, 2020

Adam Russell Lioz, Chiraag Bains, Demos, Washington, DC, Stuart C. Naifeh, Demos, New York, NY, Kira Romero-Craft, Latino Justice Prldef, Orlando, FL, for Plaintiffs.

Bradley Robert McVay, Florida Department of State Office of General Counsel, Mohammad Omar Jazil, Hopping Green & Sams PA, Tallahassee, FL, for Defendants.

AMENDED ORDER ON MOTION FOR PRELIMINARY INJUNCTION ¹

Mark E. Walker, Chief United States District Judge

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, 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 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.

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 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, 120 S.Ct. 631, 145 L.Ed.2d 522 (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 violate the Eleventh Amendment, Ex parte Young , 209 U.S. 123, 161, 28 S.Ct. 441, 52 L.Ed. 714 (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 , 974 F.3d 1236. Instead, a state official needs to have "some connection" with the underlying claim in the lawsuit. Id. at 1256 ("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, 114 S.Ct. 517, 126 L.Ed.2d 524 (1993). And in the event of an emergency or disaster, the Governor is authorized "to suspend...