On July 13, U.S. District Court Judge William Zloch issued a procedural opinion in LaCasa v Townsley, the case over whether non-Democrats should be allowed to vote in the August 2012 primary in Florida for one particular partisan office, State Attorney in Miami-Dade County. The order says the original complaint is flawed, because the plaintiffs didn’t sue the Secretary of State; they just sued the Miami-Dade County Supervisor of Elections. The order instructs the plaintiffs to file an amended complaint. Here is the order.
The case is still being expedited. The next oral argument will be on July 23 at 10 a.m. The reason the plaintiffs want non-Democrats to be able to vote in the Democratic primary is that the only two candidates who filed to be on the primary ballot are both Democrats, and there are no independent candidates in the race. There are two write-in candidates in the general election, so under Florida law, as interpreted by the Secretary of State, only registered Democrats may vote in the Democratic primary. If the two write-in candidates had not filed, Florida law says that because only Democrats are running for the office, all voters may vote in the Democratic primary for that office.
Florida law says that if an election is not contested, it does not appear on the ballot. Florida also does not put in a write-in space, unless there are actual write-in candidates.
Write-in candidates had to file by April 20, file a financial disclosure form, appoint a campaign treasurer, and must file campaign finance reports. In addition, a State Attorney must have been a member of the Florida Bar for 5 years.
What they don’t do is pay the filing fee ($9000 for party candidates, $6000 for independents) nor file a petition 12,058 signatures for the office in question.
One could make an argument that filing fees in Florida are outrageous. But that certainly isn’t the argument put forward by the plaintiffs – who are arguing that because someone didn’t write a check for $6000, they are not really a candidate (or opposition), and voters must write in their name on the ballot, they are not “opposition”.
It is not uncommon for primaries, or general elections in Florida to be uncontested, and left entirely off the ballot. For example, in 1998, 15 of the 23 congressional races were not contested, and no votes were counted (the sole candidate was deemed to have voted for themselves).
But there were two additional races where the sole opposition was a write-in candidate. In one, the final tally was 140,525 to 663 (a 99.5% majority).
There is no statutory provision that says that an open primary must be held. In 1998, an amendment was slapped into the Florida constitution that says that when all the candidates are from one party, that all voters must be permitted to vote in the primary. There are no provisions in the constitution for primaries, or parties for that matter.
The Secretary of State in 2000 interpreted this as meaning that it would not happen when there were write-in candidates. This was consistent with then existing practice of counting votes when there were write-in candidates, and completely removing the race from the ballot when there were not.
The federal court should really throw this out. It is incompetent to interpret the Florida constitution, and the case would not have been filed were it not for the provision in the Florida constitution.
It is unlikely that the federal courts will find a equal protection right for everyone to vote in a partisan primary when there is a possibility that some of the other candidates may be less than formidable.