Rick Scott right to refuse extending voter registration deadline

Florida Governor Rick Scott announced Thursday that he would not extend the October 11 deadline for registering to vote in the November election, despite Hurricane Matthew’s impact throughout eastern and central Florida.  

Though critics of Scott’s decision rushed to lambast him as “disenfranchising” voters and “trying to prevent (people) from voting,” his decision is understandable for a variety of reasons.

{mosads}Fundamentally, Florida law does not appear to give Scott the authority to extend the deadline. Florida has an Elections Emergency Act, but it only allows the governor to suspend or delay an election, not voter registration deadlines. The Florida Division of Elections has promulgated regulations to implement that law, and none of them authorize extending the period for voter registration, either.  

State law also grants the governor extremely broad emergency management powers, authorizing him to suspend “any regulatory statute” if “strict compliance … would in any way prevent, hinder, or delay necessary action in coping with the emergency.” It cannot reasonably be argued that allowing the voter registration deadline to remain in place, however, is interfering with the state’s efforts to prepare for, and mitigate the damage caused by, Hurricane Matthew.  

Moreover, several provisions throughout Florida’s Election Code contain their own special exceptions for emergencies; the absence of any comparable provision in the voter registration statute further confirms that the legislature did not wish to grant the governor authority to extend the deadline.   

Indeed, any attempt to change the voter registration deadline may have violated both the Florida Constitution, which requires voter registration to be “regulated by law,” as well as the U.S. Constitution, which specifically empowers the legislature of each state to regulate federal elections.

These provisions likely constrain the governor or election officials from acting on their own, in the absence of legislative authorization, to make important election-related decisions such as changing the deadline for registering.

Given these substantial doubts about the legality of extending the voter registration deadline, Scott acted reasonably in declining to do so.

Elections have become high-stakes, highly charged affairs in which the major parties fundamentally distrust each other.

The best way to maintain the fairness and integrity of the electoral process and avoid even the appearance of partisanship is through even-handed compliance with the plain text of the law. Asserting the power to unilaterally craft exceptions or change clear-cut requirements — however justified it may appear in any particular case — inevitably opens the door to partisan manipulation and undermines public confidence in the process.

Of course, the impulse to follow the lead of South Carolina Governor Nikki Haley by extending the voter registration deadline is understandable. Hurricane Matthew led to widespread evacuations, and millions of Floridians — including myself —  hunkered down, fearing the worst.

Because Scott would have been acting of his own accord, without legislative guidance or authorization, he would have been responsible for deciding how broadly to apply his extension: just to counties that had been evacuated, to any county that had been either evacuated or subject to a curfew, to any area over which any part of the hurricane passed, or throughout the state.  

Each of these alternatives would implicate different partisan consequences for which he would likely be assailed. That is precisely why it is important to determine the rules governing an election at the outset of the process — before their application to any specific situation is known, while the political beneficiaries of any particular decision are at least somewhat uncertain — and then scrupulously adhere to them.   

Some have suggested that refusing to extend the deadline somehow violates putative voters’ constitutional rights. Such criticisms fall wide of the mark.

Registration for the November election was not limited to a narrow window of a few days or few weeks that the hurricane substantially shortened. Rather, people could have registered for the election at any point before October 11 — even months or years ago. They could have requested a registration form by phone or by mail; downloaded it off the Internet and submitted it by mail; or completed it at a government agency such as the department of motor vehicles, public assistance office, disability office, or Supervisor of Elections office.  

The Supreme Court repeatedly has held that requiring people to register up to 30 days before an election does not constitute an unreasonable burden. A registration requirement does not become unreasonable or unconstitutional simply because some people may not become interested in the election or wish to register until the last minute, and then circumstances prevent them from doing so.  

Moreover, Scott reasonably could have concluded that election officials should focus their limited resources on ensuring that their offices have recovered from Hurricane Matthew, processing absentee ballot requests, conducting early voting, and preparing for Election Day itself, rather than simultaneously trying to also process a deluge of late registration requests.  

As the state recovers from Hurricane Matthew, rushing to process belated voter registrations also would exacerbate the risk of administrative error, which could lead to serious problems and post-election litigation in tight races.  

In short, Scott’s call was reasonable, both in terms of Florida law, as well as the competing practical implications of extending the registration deadline.

Morley is Assistant Professor of Law at Barry University School of Law in Orlando, Florida, where he teaches Remedies and Election Law.