IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

AUGUSTA SANDINO CHRISTIAN

NAMPHY, DREAM DEFENDERS,

NEW FLORIDA MAJORITY,

ORGANIZE FLORIDA, and

FLORIDA IMMIGRANT

COALITION,

Plaintiffs,

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

RON DESANTIS, in his official

Capacity as Governor of the State 

of Florida, and LAUREL M. LEE,

in her official capacity as Florida

Secretary of State,

Defendants.

_________________________/

ORDER ON MOTION FOR PRELIMINARY INJUNCTION1

Notwithstanding the fact that cinemas across the country remain closed, 

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

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

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

coinciding with a prolonged and incredibly damaging public health emergency, 

1 This Court is issuing a truncated order on an expedited basis to afford the parties a 

meaningful opportunity to appeal.

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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 election 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 

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

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

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

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

week.” Id.

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

before each election. § 97.055(1)(a), Fla. Stat.

2 Accordingly, for the 2020 General 

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

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

ahead of the midnight deadline faced an unexpected obstacle when 

“RegisterToVoteFlorida.gov” crashed. This malfunction effectively prevented 

applicants from successfully submitting online voter registration applications for 

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

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

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

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

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

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

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

federal law. See 52 U.S.C. § 20507.

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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. 

The following day, Defendant Lee issued “Directive 2020-02 - Extension of 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

registration system and failure to adequately extend the voter registration deadline 

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

Amendments to the Constitution. Plaintiffs seek a preliminary injunction extending 

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

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

voter registration applications and to allow Organizational Plaintiffs a reasonable 

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

opportunity to register notwithstanding the Secretary’s failures.

4

Plaintiffs include four organizations (“Organizational Plaintiffs”) alleging 

that their missions include civic engagement activities and voter registration efforts 

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

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

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

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

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

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

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

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

heard in opposition. ECF No. 10. 

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

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

extension. 

II

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

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

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

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

Purcell bars consideration of election law during an election cycle. 

A

This Court first addresses whether Defendant DeSantis and Defendant Lee are 

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

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

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

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

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

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

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

Court addresses this issue out of order.

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

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

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

Plaintiffs’ claims. 

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

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

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

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

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

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

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

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

Eleventh Amendment bar to suit—a state official need only have “some connection” 

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

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

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

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

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

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

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

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

in this lawsuit. 

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

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

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

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

Florida law cloaks the Governor with general emergency management powers. § 

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

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

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

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

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

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

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

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

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

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

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

B

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

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

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

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

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

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

This Court first addresses whether Organizational Plaintiffs have established 

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

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

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

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

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

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

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

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

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

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

operating a housing counseling service and investigating and referring complaints 

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

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

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

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

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

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

suffer injuries regardless of whether their members have standing. 

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

defendant’s [illegal practices].” Id. 

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

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

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

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

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

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

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

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

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

Here, Organizational Plaintiffs have similarly established a concrete injury to 

their organizational activities and a consequent diversion of resources. Each 

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

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

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

voters. ECF No. 26-2, at 1 (Plaintiff Dream Defenders “conducts voter registration 

and voter engagement work throughout the State of Florida.”), ECF No. 3-3, at 2 

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

engagement organizations to assist underserved communities throughout Florida in 

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voter registration, voter education, and get-out-the-vote efforts.”), ECF No. 26-6, at 

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

throughout the State of Florida.”), ECF No. 3-5, at 1 (“Since 2019,” Plaintiff Florida 

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

voters”). 

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

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

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

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

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

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

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

Like the organization in Havens, each Organizational Plaintiff here provided 

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

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

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

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

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

voters. Organizational Plaintiffs further assert these failures necessitated the 

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

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

scrambling to assemble voter registration education and assistance during the 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

organizational missions to register voters and the consequent diversion of resources 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

conduct.”). 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Organizational Plaintiffs have standing to assert their claims.

C

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

forwarded to the appropriate supervisor of elections.”).

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

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

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

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

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

make any unconstitutional election restriction disappear so long as an impending 

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

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

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

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

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

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

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

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

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

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

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

in Purcell only get weightier. 

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

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

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

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

III

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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A

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

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

Anderson-Burdick framework. See Democratic Executive Comm. of Fla. v. Lee, 915 

F.3d 1312, 1318 (11th Cir. 2019). 

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

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

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

right to vote is precious and foundational for every other right. Wesberry v. Sanders, 

376 U.S. 1, 17 (1964). When a court is faced with a challenge to an election law, the 

court must first determine what standard applies. For example, rational basis review 

applies when a plaintiff alleges only that a state treated him or her differently than 

similarly situated voters without a corresponding burden on the fundamental right to 

vote. Obama for Am. v. Husted, 697 F.3d 423, 429 (6th Cir. 2012) (citing McDonald 

v. Bd. of Election Comm’rs, 394 U.S. 802, 807-09 (1969)). On the other hand, strict 

scrutiny applies when a state severely burdens the fundamental right to vote. Id.

(citing Burdick, 504 U.S. at 428). Examples of laws triggering strict scrutiny include 

laws that impose a poll tax, a property ownership requirement, or a law that violates 

the “one person one vote” principal. Lemons v. Bradbury, 538 F.3d 1098, 1103-04 

(9th Cir. 2008).

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

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

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

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

protected by the First and Fourteenth Amendments that the plaintiff seeks to 

vindicate’ against ‘the precise interests put forward by the State as justifications for 

the burden imposed by its rule,’ taking into consideration ‘the extent to which those 

interests make it necessary to burden the plaintiff’s rights.’ ” Burdick, 504 U.S. at 

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

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

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

only reasonable, nondiscriminatory restrictions upon the constitutional rights of 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Organizational Plaintiffs’ injury is inextricably intertwined with the injury potential 

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

This is because Organizational Plaintiffs’ stated missions include registering Florida 

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

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

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

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

flows directly from potential voters’ injury.

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

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

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

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

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

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

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

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

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

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

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

mail.11

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

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

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

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

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

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

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

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

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

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

23-5, at 3.12

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

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

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

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

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

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

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

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

voter registration numbers is barebones data comparing historic voter registration 

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

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

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

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

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

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

voter registration. 

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

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

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

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

figures, and assuming Florida would have seen roughly proportional registration 

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

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

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

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

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

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

relevant deadline. 

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

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

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

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

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

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

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

registering even with the extension.13

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

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

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

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

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

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

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

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

evaluate Defendant’s justifications under heightened scrutiny. 

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

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

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

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

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

interest put forward by the Defendants; namely, conducting an efficient and orderly 

election. ECF No. 24, at 14. Specifically, Defendants direct this Court to three 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(explaining that interests justifying election deadlines include “conducting an 

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

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

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

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

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

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

entitled to great weight. 

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

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

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

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

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

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

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

conducted in as safe and orderly a manner as possible. 

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

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

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

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

persuaded this Court with record evidence suggesting their requested relief 

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

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

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

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

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

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

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

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

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

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

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

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

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

outweighs the burden placed on the voting rights of Floridians. 

B

The remaining preliminary injunction factors are thoroughly intertwined with 

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

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

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

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

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

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

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

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

registration period.

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

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

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

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

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

already precarious—and perennially chaotic—election outweighs the substantial 

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

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

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

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

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

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

IV

Stays pending appeal are governed by a four-part test: “(1) whether the stay 

applicant has made a strong showing that he is likely to succeed on the merits; (2) 

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whether the applicant will be irreparably injured absent a stay; (3) whether issuance 

of the stay will substantially injure the other parties interested in the proceeding; and 

(4) where the public interest lies.” Hilton v. Braunskill, 481 U.S. 770, 776 (1987); 

see also Venues Lines Agency v. CVG Industria Venezolana De Aluminio, C.A., 210 

F.3d 1309, 1313 (11th Cir. 2000) (applying the same test). Considering that this test 

is so similar to that applied when considering a preliminary injunction, courts rarely 

stay a preliminary injunction pending appeal. That rings true here. Because no 

exceptional circumstances justify staying this Order pending appeal, see Brenner v. 

Scott, 999 F. Supp. 2d 1278, 1292 (N.D. Fla. 2014) (Hinkle, J.) (issuing a rare stay 

of a preliminary injunction given the public interest in stable marriage laws across 

the country), this Court refuses to do so.

V

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

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

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

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

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

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

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

election.

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

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

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

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

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

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

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

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

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

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

for its citizens to vote.

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

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

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

injunction, ECF No. 3, is DENIED. 

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

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

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

SO ORDERED on October 9, 2020.

s/Mark E. Walker 

Chief United States District Judge

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