In a federal courtroom on Wednesday, a judge will hear arguments on whether or not the state's voter registration deadline should be extended beyond 5 p.m. due to Hurricane Matthew.
U.S. District Judge Mark Walker has already pushed back the Oct. 11 deadline by a day in order to hold the hearing after the Florida Democratic Party filed a lawsuit on Sunday evening. In his ruling granting the one-day extension, Walker said that the deadline amounts to a "severe burden on the right to vote" and he suggested it was unconstitutional.
The party filed the lawsuit after Gov. Rick Scott turned down requests including an informal suggestion from the campaign of Democratic nominee Hillary Clinton to extend the deadline. Scott, who is supporting GOP nominee Donald Trump, said the reason he was doing it was that people had already had enough time to register.
It's not clear how hard the governor's office plans to fight to keep the deadline. A spokeswoman for Scott put out a statement on Tuesday that said that the state will accept the judge's decision _ and that the governor would even seek to change the law during the upcoming 2017 session.
But one question that is floating out there - and one that may not be totally resolved after the court hearing - is just how much power does Florida's governor have during emergencies?
Walker in his ruling suggested - but not definitely - that Scott lacked the authority to extend the voting deadline.
In his order Walker wrote that while Secretary of State Ken Detzner was an appropriate person for Democrats to sue since he was the chief election official, he didn't think that applied to the governor. He noted that while Scott has "general emergency powers" those powers may not include any power to alter the voting registration deadline. Those powers generally allow the governor to suspend laws if there is a declared emergency.
Walker pointed out, however, that there is a carve out in existing Florida law that allows the governor to delay or suspend an election due to an emergency. The judge then notes that section of law says nothing about changing the voter registration deadline.
That led Walker to conclude it is "wholly irrational in this instance for Florida to refuse the extend the voter registration deadline when the state already allows the governor to suspend or move the election date."
This was an interesting point brought up by Walker since the lawsuit did not even delve into Scott's emergency power. Instead the lawsuit filed by the party suggested that Scott's decision to keep the deadline amid the disruption, power outages and evacuations that occurred due to Matthew amounted to a violation of federal law and disenfranchisement of voters. Scott himself did not cite a lack of authority as a reason for his decision.
Now the elections emergency law cited by Walker has been used before.
Former Gov. Jeb Bush used it to alter the election in 10 counties following Hurricane Charley in 2004. This move allowed county officials to delay the start of early voting.
It's important to note here that Bush's order came on Aug. 19 - or less than 2 weeks before that year's primary - so it's not completely comparable. But another part of his order gave the secretary of state's office the power to "modify, suspend, amend" any deadlines in the entire election code that could not be complied with due to the emergency caused by the hurricane.
But the truth is that several Florida governors have used their emergency powers in broad ways _ and in most instances they have never been challenged.
And while I'm sure it could be argued that the actions of past governors do not create any legal precedence, this shows that Scott could have had a justification to take action if he wanted.
Former Gov. Charlie Crist, for example, used his emergency powers in 2008 to extend early voting hours (a move that privately infuriated some Republicans, but who opted against suing him). Crist even in the final days of his governorship ordered that the state begin to offer extended jobless benefits to Floridians that had been approved by Congress and signed into law by President Barack Obama.
Scott himself back in February 2015 _ without the justification of an emergency _ issued an executive order to suspend an 11th grade standardized test that was about to be given to high school juniors that spring. Scott contended that he could do under his "supreme executive power" but then noted that the Legislature would have a chance to repeal the law that authorized the test later that year.
Were these moves legal? That's hard to tell since the actions were never challenged in court.
But what it shows is that there have been instances in the past where Florida's most recent governors have taken action. And not once did they suggest that they lacked the authority to do so.