On June 29, two Florida voters, one a Republican and one an independent, filed a federal lawsuit to gain the ability to vote in the August 2012 Democratic primary for Dade County State’s Attorney, a partisan race. The lawsuit is Mazzilli v Townsley, southern district, 12-cv-22432.
The only candidates who filed to have their names on the primary ballot are two Democrats, incumbent Katherine Fernandez Rundle and Rod Vereen. But, two write-in candidates also filed to run in the general election in this same race. Florida law says that when a partisan race has no candidates except candidates from the same party, then all voters, regardless of their party affiliation, may vote in that primary. But because two write-in candidates filed to run in the general election for this office, the Democratic primary is closed to voters who aren’t registered Democrats.
The lawsuit says that write-in candidates in races like this are generally insincere individuals, who don’t really campaign, and who just file as write-ins in order to keep the primary closed. The lawsuit belittles write-in candidates generally, and says “No write-in has ever won a general election in Florida” and “In Miami-Dade County, only one write-in candidate has received more than .08% of the total Miami-Dade votes in a general election – and that candidate received a grand total of 462 votes.”
Actually, in 1932, Norman Thomas was a write-in candidate for President in Florida, and he got .28% of the statewide vote, although his share of the vote in Dade County isn’t readily available. The brief for the two voters does not give any authority for the statement that no write-in candidate has ever won an election in Florida. Florida permitted write-ins in general elections ever since the government-printed ballot was created in 1895, except during the period 1977-1979. The legislature abolished write-in space in 1977 but in 1979 the State Supreme Court ruled that the State Constitution protects write-in voting, so the legislature had to restore write-ins.
The brief for the two voters does not mention that the same issue in this case was already litigated in 2006-2007, in state court. That case was Jacobson v Martin, 2006 CA 1160, Lake County Circuit Court. In that case, Judge Mark J. Hill said the Florida law is clear that the open primary does not apply if there will be at least two candidates in the general election, and also that a write-in candidate is a candidate. Thanks to Bill Van Allen for news of this case.
As I remember it, it was back in 1998 the Constitution Revision Commission (Revision 11?)put on ballot a change that allowed for all voters to vote in primary if all candidates were from one party.
It was only AFTER that measure passed that it came down a ruling that made clear that write-in also counted when making determination to allow voters from other parties in a party’s primary. In practice then the reform was repealed as political operatives then as a rule got a ringer write-in to run if they thought that would improve a particular candidate’s chances if the primary remain closed to that one party.
Write-ins are wonderful people, but many in Florida have been running only to enhance another candidate’s chances.
The real scandal is how a system can be so awful that a purposeful reform can be undermined that quick, this long without any account. Constitution Revision Commission meets in 2018, maybe they can fix it then.
#1, the problem is that the U.S. Supreme Court ruled in both Tashjian v Republican Party of Connecticut, and California Democratic Party of California v Jones, that parties, not state law, determine who votes in party primaries. Those decisions are muddled, however, by the US Supreme Court decision in 2005 in Clingman v Beaver, which said that parties don’t have the right to let members of other parties vote in its primaries, even though they do have the right to decide whether to let independent voters vote in their primaries. The U.S. Supreme Court has made a mess out of this area of the law.
#2 thank you for the clarity on the muddle. I’ll only add the perpetual re-ordering, re-examination of political party rights is a core injustice. Nothing in our system is formally positioned to catch this save a unlikely heroic activist judiciary. This situation is convenient to the political class that is ever craven for continued insulation.
This issue was also decided in Truini v Snipes in Florida circuit court (17th Circuit – Broward County) in 2008. Judge ruled law was clear and unambiguous and – even if Truini’s primary opponent was responsible for the write-in candidate running to close the primary, this conduct was clearly permitted under Florida law. Judge said legislature could close this tactic if they want to prohibit it.