Every election year in Florida usually brings its share of litigation (although presidential election years usually have a longer list of lawsuits.)
There's a curious lawsuit now pending in a Leon County circuit court that has prompted a strategic alliance between two normal foes: the Florida Democratic Party and the administration of Gov. Rick Scott.
The lawsuit centers around a write-in candidate, Ronald Bray, who qualified in what is expected to be a contentious state House race between Broward County Commissioner Kristin Jacobs and former Rep. Steve Perman.
The entry of Bray into the race effectively closed the Aug. 26 primary, which for all purposes will determine the outcome of the election since a write-in has never won in Florida.
Florida voters in 1998 approved an amendment that was supposed to open up primary races to all voters regardless of party affiliation if candidates of other parties do not qualify. But a controversial Division of Elections opinion penned by the administration of then-Secretary of State Katherine Harris back in 2000 said that when a write-in candidate qualifies for the general election the primary must remain closed. That means many races in Florida, like this one, are routinely closed by the sudden appearance at the end of qualifying of write-in candidates. Here's a good story about it how it affected the 2012 elections.
Robert Adams, who describes himself as an independent voter in Broward County, filed a lawsuit to remove Bray on the grounds that Bray does not live in House District 96. His lawsuit cites a current state law that requires write-in candidates to live in their district at the time of qualifying.
Adams' lawyers were in court on Monday seeking a preliminary injunction so that Broward County officials would be forced to open up the primary. Judge George Reynolds apparently turned down the initial request, but has accelerated the process in order to render a quick decision. The two sides must file all their legal briefs on the case by this Thursday.
But Reynolds also allowed the Florida Democratic Party to intervene in the case.
And the Democrats are already making an interesting argument: That the law requiring write-in candidates to live in their districts is unconstitutional. The Democrats request to intervene contends this requirement is at odds with the state constitution, which has generally been interpreted to mean that legislators don't have to live in their districts until Election Day. (This argument is also being made by lawyers representing the write-in candidate.)
Also included in the motion is this: "The State Executive Committee of the Florida Democratic Party takes no position regarding the candidacy of the two Democratic candidates who have qualified for nomination and election to the office of State Representatives, District 96 (sic). Its interest in this litigation is in assuring that the provisions of the State Constitution establishing qualifications for candidates for the State House of Representatives are not eroded by adding additional qualifications, not otherwise specified in the State Constitution."
In essence, the Democratic Party wants to keep the primary closed to independents and Republicans. (One could wonder if this hurts or helps a particular candidate in the race.)
And who else wants to keep the primary closed for now? Secretary of State Ken Detzner, who works for Scott.
Attorneys for the Scott administration and state election officials contend in their legal briefs that opening up the primary now would create an "unnecessary burden" on election officials and could potentially disrupt the upcoming election. The legal brief notes, for example, that overseas ballots must be sent out by July 12.
"At this stage in the elections process, the relief requested by Plaintiff has the potential to jeopardize the accuracy and reliability of the election,'' states the department's filing. "Plaintiff’s proposal is to reverse the Supervisor’s current course and, in a matter of days before the Saturday, July 12 mailing deadline, restyle the ballots and reset the mailing to all registered electors."
The state's legal brief also throws out what it calls a "far simpler remedy" if the court does decide to disqualify Bray - conduct the open primary at the Nov. 4 general election.
(As a sidelight - another interesting element of the state's brief is that it argues that state election officials are not able to determine the "truth and accuracy" of someone's residency at time of qualifying so therefore the state did "nothing in error.")
This is the not the only time the state and Democrats have joined sides - they also did during a legal challenge to President Barack Obama appearing on Florida's ballot. But it's still a rare occurrence.
And just as important for Democrats it means that they can't complain when write-in candidates suddenly appear to close off Republican primaries to Democratic voters.