The Fine Print

Mystery appeals and campaign finance dilemmas

Time for another round of inside the bubble news....

Who's ad is it anyway?....Republican frontrunner for governor Adam Putnam hit the airwaves this month with a biographical ad that is meant to highlight his agricultural roots and his belief in faith and family.

But campaign records available so far show that the ad isn't being bankrolled by Putnam's campaign.

Instead Florida Grown, a political committee organized and controlled by the agriculture commissioner, has already paid nearly $1 million to Smart Media Group to purchase television time for the ad. That has been backed by FCC filings on file that show that the ad is being paid for by Florida Grown.

Ads on television have carried a disclaimer saying it was a paid political advertisement from Florida Grown.

Yet on Sunday, the Putnam campaign put out a fundraising pitch that says it's their ad and asked people to give them money to keep it on the air. There's a link to the ad on the Putnam for governor website. That version _ which is a full minute in length and not 30 seconds like the version shown on television _ has a disclaimer saying it was paid by the Adam Putnam for governor campaign.

So why is this important?

Well, the first is that Florida Grown can accept unlimited amounts from anyone, including corporate donors, while Putnam's actual campaign can only accept donations worth up to $3,000. So that means that it's harder to raise money for the actual campaign versus the political committee. And that's why there would be a desire to pay for television ads through the committee since those dollars are much easier to replace.

But while Florida law regarding political committees has loosened up in recent years there remain some restrictions on how those committees can spend money.

Florida does not have the same kind of federal restrictions that are supposed to limit contact and coordination between campaigns and other groups. Campaigns are allowed to work in tandem with committees regarding ads.

But the state's Division of Elections put out a very interesting opinion in 2016 that could have ramifications for the Putnam campaign.

Well-known attorney Ron Meyer, who does work on behalf of entities aligned with the Florida Education Association, asked that year about what kind of ads a political committee could undertake - including running television ads that refer or depict "a clearly identified candidate for office" that do not "expressly advocate" for that candidate but have no other reasonable interpretation "than an appeal to vote for or against a specific candidate."

In that opinion, the division stated that there are a type of ads that fall outside the normal definition of what constitutes a regulated ad. These are ads that are run outside a period of 30 days before a primary and 60 days before a general election. These ads are also coordinated with a campaign but do not expressly advocate someone's election. But here's the important part: Since these ads don't fall under the normal definition then a committee that does such ad could be contributing to a campaign.

If this opinion were applied to the Florida Grown ad, then it could be a problem especially since $1 million is way beyond the $3,000 contribution limit.

Under Florida law, campaigns that accept contributions above the legal limit can be susceptible to fines twice the amount of the contribution.

It is important to stress that this is an interpretation of existing law by the Division of Elections. But this speaks to the nature of Florida's complicated campaign finance laws and how they function - and just as important - what is the actual purpose of the law.

MYSTERY APPEAL...There was quite a bit of drama last week as it relates to Florida's automatic ban on civil rights for felons.

A federal appeals court late Wednesday agreed to place a stay on U.S. District Judge Mark Walker's ruling that maintained that Florida's current system for deciding who should have their rights restored is unconstitutional. Florida currently requires former prisoners to wait anywhere from five to seven years after they leave prison before they can ask to have their rights restored. Walker sided with former prisoners who had their applications denied. And as part of that ruling, Walker ordered the state to overhaul its rules by April 26.

Fearful that the appeals court would not act in time Gov. Rick Scott scheduled an emergency meeting of the state's clemency board (which consists of the governor and the three other elected Cabinet officials) with a potential new set of rules. The meeting was scrapped, however, when the court came down with its last-minute decision.

So here's the mystery then: Who gave the order for the clemency board to file the appeal and request the stay in the first place?

Here's the reason for that question: The lawsuit wasn't just against Scott or Attorney General Pam Bondi but it was a lawsuit against the clemency board itself. Florida's Sunshine Law does in general apply to meetings of the governor and Cabinet. (Clemency records are confidential, but there has not been an assertion that the board can meet in private.)

The state's solicitor general _ who works for Bondi _ filed the appeal and the stay request even though there was never a meeting of the clemency board to discuss or vote on what to do in the wake of the initial ruling.

And the state officials who sit on the clemency board have not given a lot of information on how this happened.

When first asked, Whitney Ray, a spokesman for Bondi said that "given the gravity of this issue, a decision to appeal was never in question."

Ok, but again - the solicitor general is an attorney who was working on behalf of the clemency board. Usually attorneys must confer with their clients before proceeding with major action such an an appeal.

During a public availability, Bondi herself refused to answer a question on the decision to appeal. She said that "we're not going to talk about pending litigation."

The press offices for both Chief Financial Officer Jimmy Patronis and Putnam also did not yield much information on the decision to appeal. Putnam's spokeswoman, Jennifer Meale, said that their office was "notified of the decision to appeal." Patronis's office said the CFO was "kept informed" by communication between the solicitor general and the general counsel for Patronis.

So in both instances neither official said they made an affirmative decision to appeal.

The only office to finally bring some light to the situation was Scott's office. John Tupps, a spokesman for Scott, said that the general counsel for the governor conferred with the solicitor general about the need for appeal.

And the governor's office maintains that such a move was legal even though it was done behind closed doors. They point to a 1978 case that is still cited in the Sunshine Manual that said it was ok for an attorney to confer with members of a board in reaching a decision to appeal.

But even if Scott and Bondi agreed to an appeal that's still just two out of four clemency board members.

Worth pointing out as well: Scott and the Cabinet were sued in 2015 for sidestepping the Sunshine Law because of the way then Florida Department of Law Enforcement Commissioner Gerald Bailey was dismissed since he worked for all four officials not just the governor. In the end the case was settled, but only after the state agreed to pay attorney fees in the case and that senior staff and aides participate in mandatory Sunshine Law training.

Barbara Petersen of the First Amendment Foundation said that whole situation "doesn't pass the sniff test" and questions if the other members of the board have yielded all legal decisions to Scott's office.

One Democratic candidate for governor opposed to Florida's current system of handing rights restoration is also asking questions.

Tallahassee Mayor Andrew Gillum last week filed a public records request that asked for any records related to the decision to appeal and file other legal motions in the case. In his letter seeking the records Gillum states "it is unclear the legality of whether the Solicitor General, at the discretion of the Governor, can decide to file a motion, or a series of motions, on behalf of all the Cabinet officers. Floridians deserve to know how their Cabinet officers agreed to a legal decision on behalf of the state of Florida." 

And just like that - Gov. Rick Scott cuts ties to Let's Get to Work

So a funny thing happened on Sunday.

Florida Gov. Rick Scott's image and his name and videos disappeared from the Let's Get to Work website. (The photo on the right was taken last Thursday.)

Consider his disappearance just another sure sign of his expected jump into the race for U.S. Senate against incumbent U.S. Sen. Bill Nelson. Scott is planning to make a "major" and "big" announcement about his political future on Monday in Orlando. 

Scott first started Let's Get to Work in the heat of the 2010 campaign for governor as an electioneering communication organization amid potential fears that the governor's self-funded campaign would bust a spending cap that could result in Republican primary opponent Bill McCollum getting a dollar-for-dollar match from public financing. Scott sued in federal court and eventually won an important ruling that declared the spending cap law unconstitutional. But the organization remained in play that whole campaign season.

After ECOs as they were known were eliminated by the Legislature, Let's Get to Work became a political committee that then assisted Scott's re-election. But even after he won a second term, the committee paid for television ads meant to push Scott's agenda through a sometimes recalcitrant GOP-controlled Legislature.

But the problem with the committee for Scott is that it relied on large corporate donations, taking checks in from various groups whose business can be affected by Scott and the Legislature. (U.S. Sugar, for example, gave more than $600,000 over a three-year period. Private prison providers, health care providers, utilities, business associations are among the long list of those who gave money.)

So in order to remain complaint under federal election law while he runs for U.S. Senate Scott needed to distance himself from his creation. Hence the makeover of the website this weekend.

It was already clear that the end was coming. Donations stop flowing into the political committee in the last few months. Records _ including those were self-reported by the committee _ show that at this point that Let's Get to Work has less than $200,000 in its bank accounts. The committee has spent more than $57 million since March 2014.

While Scott's name and image have vanished from the website, it now states that "Let’s Get to Work is supported by Lieutenant Governor Carlos Lopez-Cantera.  Its chairman, Abby Dupree, is also associated with this organization."

This was apparently news to Lopez-Cantera, who Scott appointed in January 2014 right ahead of his re-election campaign.

Brian Swensen, who served as campaign manager for Lopez-Cantera's U.S. Senate bid in 2016, said neither he or Lopez-Cantera were aware that the LG was still being associated with Let's Get to Work.

Now while the official Let's Get to Work website has been wiped the videos and ads that the committee did on behalf of Scott still remain on YouTube. 

(UPDATE: Matt Dixon with Politico Florida reported on Sunday night that the New Republican Super PAC has also removed all references to Scott. Scott became chairman of the group last year, but he has to sever his connections to the organization once he becomes a federal candidate.)

Dispatches from the Capitol: Latest House tsunami appears ready to wipe out a Charlie Crist legacy

After one-third of the 2017 legislative session one thing has become readily apparent: House Speaker Richard Corcoran wasn't joking when he talked about how little time he had to accomplish a lot of changes he wanted made.

Because the flow of sweeping new legislation doesn't appear to be stopping anytime soon in the House.

Theoretically most legislation to be considered during the 60-day session is supposed to be filed by opening day.

Ah, but there's a big workaround.

Under House rules committees can roll out at any time what are called "proposed committee bills." These aren't ordinary bills because they have to approved by the speaker ahead of time and they usually reflect top House priorities.

And the House has been using this vehicle to unleash a torrent.

Each day brings yet another major overhaul whether it's a big change to charter school laws, deregulating professions, eliminating Enterprise Florida, a cap on local government taxes etc. etc.

There's more coming on Wednesday, including an overhaul of the Florida Retirement System...and wait for it a big change to the state's election law.

The House is going to consider reinstating Florida's resign to run law for candidates who seek federal office.

The state changed the law in 2007 when Gov. Charlie Crist, then a Republican, was in office and there was buzz that he could wind up seeking higher office. In essence the change meant that Crist or any other elected official didn't have to resign from their current office if they planned to run for president, vice president, U.S. Senate or Congress.

The argument at the time - which was when Marco Rubio was House speaker (but after Corcoran had left as his chief-of-staff) was that Florida should do what it could to help its rising stars seek higher office without forcing them to give up their existing posts. This is a practice common in many other states.

It's worth noting that the state's resign-to-run law had previously tripped up many politicians, most notably then-Secretary of State Katherine Harris, who was forced to resign in the summer of her final year because she didn't properly tender her resignation when she qualified to run for Congress.

Now despite some speculation that Crist was on the shortlist to be vice president, he never got to use the law.

But plenty of other politicians - for example Sen. Lizbeth Benacquisto - have. Benacquisto didn't have to give up her state senate seat when she ran unsuccessfully for Congress in a special election to replace U.S. Rep. Trey Radel.

The House, however, wants to go back to future.

And their election bill doesn't just stop there - it has a few other changes sure to draw fire, including a proposal to force cities to have their elections at set times instead of whenever the city wants to schedule it. The bill would also not allow someone to run as a independent candidate (technically NPA - no party affiliation) if they are actually registered with a party.

Now some might view this bill as a possible shot at Gov. Rick Scott, who has said he is considering running for the U.S. Senate next year. There's no doubt that Scott and the House Republicans are locked in a feud.

But Scott is leaving office anyway due to term limits so this bill really wouldn't affect those plans.

How much power does Gov. Rick Scott really have?

(UPDATE: Florida's voter registration deadline was extended to Oct 18.)

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.

Lawsuits, politics, and the House-Senate cold war: Why the real fight over redistricting may be yet to come

There's no doubt when the Florida Legislature kicks off its second special session of the year on Monday that lawmakers have the potential to bring a tsunami of changes to the state's political landscape.

Legislative staff and lawyers drew up a "base map" that has already riled some because of the way it divides Sarasota and Leon counties. U.S. Rep. Corrine Brown responded by going to federal court and asking a judge to block the state from changing her district from one that stretches from Jacksonville to Orlando to one that runs across the northern end of the state to west of Gadsden County. Brown asserts that changes would adversely impact minority voting rights and run afoul of federal law.

If adopted the plan could alter and end the Congressional careers of U.S. Reps. Gwen Graham and Dan Webster while resurrecting Charlie Crist yet again.

But there are a lot of signs that any efforts to make serious changes to this map may be quickly rebuffed by the GOP leaders in charge of the Legislature.

Take for example the rules rolled out for the session.

No lawmaker can propose just altering part of the map - they must introduce a entire new plan.

Additionally, in an effort to deal with any potential charges of partisan influence Senate President Andy Gardiner and House Speaker Steve Crisafulli will require that anyone who offers an amendment to be prepared to identify anyone who had a hand in it as well as "be able to provide a non-partisan and incumbent-neutral justification for the proposed configuration of each district, to explain in detail the results of any functional analysis performed to ensure that the ability of minorities to elect the candidates of their choice is not diminished, and to explain how the proposal satisfies all of the constitutional and statutory criteria applicable to a Congressional redistricting plan."

In other words not an easy task.

"We don’t have the know-how in terms of creating maps, we’re not map experts," said House Democratic Leader Mark Pafford. "And I don’t know if anybody really knows where to begin."

Sen. Jeff Clemons added that he expects most senators to move with caution because of the proscriptive nature of the July ruling from the Florida Supreme Court. It was that ruling, which not only threw out the current congressional map, but included specific suggestions such as reconfiguring Brown's district from a North-South configuration to one that runs East to West.

Sen. Bill Galvano, the top Republican guiding the redistricting efforts in the Senate, contends that the rules were not intended to dissuade anyone from offering up changes.

"We want to make sure we have a full record and that the reasons for amendments or proposals within the map are clear, delineated and on the record,'' Galvano said.

He also said it would be wrong to assume that the "base map" won't be fully discussed and vetted. Galvano added that he expects legislators to need all 12-days that have been set aside for the session.

But the political reality is that many legislators don't have a vested interest in what happens to these congressional districts.

Yes, it's true that the new map could lead to a shrinking of the GOP advantage in the Florida delegation.

But the real showdown in the Legislature isn't during this upcoming session - it's the special session planned for late October

That session _ when lawmakers will be forced to redraw the Senate districts _ will much more wide open. To begin with: While the state Supreme Court gives great insight to how the high court thinks about some of the logic used by the Legislature for congressional districts there's still wiggle room left for the state Senate seats.

"These congressional maps are going to be a good opportunity to learn what's important in relation to drawing the Senate maps,'' Clemons said.

And as had been reported elsewhere putting all 40 seats in play during a presidential year could tip the balance of what happens in the unresolved battle between Sen. Jack Latvala and Sen. Joe Negron for the 2017-18 Senate presidency.

That could prompt the Florida House to use its leverage especially since there are rumblings that there is still a divide between the leaders of the two chambers.

It wasn't by accident that the settlement over the lawsuit against the Senate included wording that absolved the House of any wrongdoing and placed all blame on the Senate GOP leaders. There's probably no way that the House leaders would have accepted the settlement without that crucial acknowledgement.

Of course the "Fair Districts" amendment prevents drawing lines to aid incumbents or people of a particular political party. But that won't stop all 160 legislators from being able to look at the maps themselves and reach their own private conclusions about what the political fallout will mean if certain configurations are adopted.

But this ongoing federal litigation may also come into play prior to that special session.

The lawsuit filed in Pensacola aims to wipe out the amendment as it has been interpreted by the state Supreme Court because it violates free speech rights guaranteed by the U.S. Constitution.  It won't impact this special session, but if a judge issues an injunction by October that blocks state officials from relying on the Fair Districts amendment, it could really shake up that special session. (Worth noting: The lawyer who is working on this case used to be the general counsel for the Florida House.)

Justin Levitt, a Loyola University professor who tracks redistricting cases, says federal judges are usually "skeptical" about free speech claims but he also said he expects the lawsuit to be taken seriously.

And what about Brown's legal argument?

He's not sure how that will proceed. First all, he notes that Brown is asking the court to block a new congressional district that has yet to be adopted. But he adds that while the federal Voting Rights Act does aim to protect the rights of local populations to choose a representative of their choosing there can still be multiple ways to meet the goal. Right now the "base map" keeps Brown's district with a black voting age population of 45 percent - down slightly from the existing 48 percent in the district.

"The Voting Rights Act does not force Florida to choose one over the other,'' Levitt said.

So where does that mean? It means that the next 12 days are just the pre-season to the real contest - and political infighting - that may lay ahead in the fall.

The slow fading light of a Scott initiative

Sorry for the delay - time for another installment of Inside the Tallahassee bubble news

Three years ago this May Gov. Rick Scott unveiled an initiative that he said would help citizens hold their government accountable.

Project Sunburst as it was called was described as a way to increase access to public records held by the Scott administration - while at the same time helping cut down on the number of record requests constantly flowing in for emails from both the governor and his staff.

When it started the initiative included the emails of Scott and members of his leadership team (although noticeably absent were the emails of his budget chief and general counsel.)

And when asked about other records, such as correspondence and letters written by Scott, then-Chief of Staff Steve MacNamara promised that would be added as well.

Let's flash forward and see what's there now.

Letters? That never really got going. All that is on is the site are 11 letters written in June 2012.

Ok, so what about emails?

Well, there are more folders associated with former employees than people working there now.

There are four deputy chiefs of staff reporting to Melissa Sellers, Scott's chief of staff and campaign manager for his re-election. None of them have their emails included in Sunburst. Nor does Scott's current cabinet affairs director - an area that has been the source of consternation in recent months since the forced dismissal of Florida Department of Law Enforcement Commissioner Gerald Bailey.

Emails going into an account for Lt. Gov. Carlos Lopez-Cantera appear to have stopped going into Sunburst this past January.

There is still traffic in Sellers account - but it mainly consists of her schedule and emails she receives. She appears to have adopted the same policy as her predecessor and refrains from using her state account to send anything out.

Sunburst does still show Scott's own email account although the great bulk of that account are emails received to his public account from citizens around the state. The site also does include the emails of Scott communications director Jackie Schutz although her account hasn't been updated since May 7.

Another legal battle brewing over taxpayer-helped campaigns

Former State Rep. Perry Thurston lost his bid last year to become the state's top legal affairs officer.

But Thurston is embarking on a legal challenge that could affect future statewide campaigns.

The unsuccessful Democratic candidate for attorney general and his attorney Mark Herron are asserting that the Department of State improperly denied his request last summer for matching funds.

To refresh everyone's memory: Matching funds are taxpayer money that is made available to statewide candidates based on certain eligibility criteria. Those who meet the criteria receive an initial two-for-one match for contributions from Florida residents followed by additional distributions at a one for one match.

The Legislature tried to repeal the program but voters turned down a proposed amendment to get rid of the money.

Thurston asserts he cleared the thresholds needed to get the matching funds including raising at least $100,000.

But in its filing with the Florida Elections Commission attorneys who work for Secretary of State Ken Detzner maintain that the documentation submitted by Thurston in August 2014 put him at slightly more than $99,000 - or below the threshold. They contend that the Thurston campaign did not question the omission of other documentation until after he has lost the Democratic primary to George Sheldon and by then it was too late because he was no longer a candidate.

"If individuals were permitted to submit supplementary documentation to establish the $100,000 threshold for eligibility at any time, even after being eliminated as a candidate, there would be no limiting principle to achieve finality,'' states the filing by then-department general counsel J. Andrew Atkinson.

Thurston appealed the finding to the commission but the panel last week voted against him.

Herron says his client plans to take the case to the 1st District Court of Appeal. He contends that this is an important case because the division used minor issues - the fact that a copy of the check was partially turned down and hid part of an address - to deny Thurston's submission. If the division had counted these checks then Thurston would have been eligible. The October submission was merely resubmitting the same information with new copies of the checks.

The amount of money that Thurston could be eligible for if he wins the case would not be unsubstantial. The division itself acknowledges that if Thurston had been crossed the initial threshold he would have been entitled to roughly $75,000.

In its filing division attorneys assert it is pointless to pay the money now because under law it would have be returned to the state's general revenue account. Herron disputes that as well.

For once Rick Scott follows the Charlie Crist playbook

One of the many things that Republicans, including those in Florida, have complained about President Barack Obama is his use of executive power, most recently of course seen in his executive order dealing with immigration.

Florida is one of the more than two dozen states that late last year joined the lawsuit filed by Texas challenging the president's actions.

At the time Attorney General Pam Bondi contended that her decision to join the other states was not about immigration but to undo what she termed "unwarranted presidential overreach."

"This lawsuit is about President Obama-yet again-overstepping the power granted to him by our United States Constitution," Bondi said.

She then added: "The powers granted to the President are expressly laid out in the United States Constitution, yet President Obama has decided to ignore those parameters."

In Tallahassee this week, Florida Gov. Rick Scott exerted his own kind of executive authority, and one that could theoretically also be challenged as "overreach."

Scott issued an executive order on Tuesday that authorized Education Commissioner Pam Stewart to suspend an 11th grade standardized test that was about to be given to high school juniors this spring.

Scott took the action in response to a testing investigation undertaken by Stewart at his urging last year while he was on the campaign trail. Stewart in her summary of that investigation suggested getting rid of the test even though it was just approved last year and was included in a bill (HB 7031) that repealed mention of Common Core in state law.

The wording of Scott's order was interesting.

First off, Scott asserts that his authority to give Stewart the power to suspend the test is vested in the state constitution. The language he cites is from the first part of Article IV, which states that the governor "has supreme executive power."

Nowhere does Scott contend that there is an emergency that requires him to act now regarding the test.

But the governor kind of acknowledges that he is telling Stewart not to follow the law, saying he is taking action now because the "Legislature will have opportunity to consider repeal of the statutory requirement" that now mandates the test. (It's not clear whether or not lawmakers will in fact do that.)

Florida's governor does not enjoy the same scope of executive power as the president although the governor is arguably more powerful now than two decades ago. Changes in the constitution and state law - especially during the Jeb Bush years - has strengthened the governor's hand.

But usually the only time the governor can suspend or waive the law is when there is an emergency such as a hurricane. Most of the time the governor's executive orders deal with matters as appointing a prosecutor from another judicial circuit to handle a case because another prosecutor has a conflict.

Former Gov. Charlie Crist, however, building on Bush's use of executive orders issued executive orders that privately some Republicans grumbled were not legal, most notably his decision to extend early voting hours during the 2008 election (and which Crist said was justified by an emergency).

One top Republican at the time said it would have created a public relations disaster to sue Crist over the order, not to mention it wasn't clear if a court would act quickly enough to block the order from taking effect.

This wasn't the only time, however, Crist would use an executive order in a legally questionable way.

In his final months in office he issued an executive order that extended jobless benefits approved by Congress even though the Legislature had not authorized it. Crist took the action even though past extensions had been passed by state legislators and it was assumed that the benefits would lapse absent legislative action.

Just as it had happened with the voting executive order, no one challenged Crist's authority that time either.

And that's probably what will happen with Scott as well. It's hard to imagine anyone who would go to court to force 11th graders to take a test.

But this could signal a decision by Scott to be more assertive in his use of executive authority despite signs that he may have a tough time getting fellow Republicans in the Legislature to follow his lead during a second term.

And perhaps when Scott greets Obama on the tarmac in Miami today they could regale each other about the use of executive orders.

More than 82,000 votes didn't get counted in governor's race, but did it really matter?

 

Consider this the last word on the 2014 governor's race between Charlie Crist and Rick Scott.

Back before the election it was pointed out that the one takeaway from the tough 2010 race between Scott and Alex Sink is that a lot of voters just skipped the race all together. 

So what happened this time around?

The state Division of Elections has just released its required report that looks at overvotes and undervotes from the 2014 race. In essence, it's a report that looks at how many voters cast ballots that weren't counted in the governor's race.

(Overvotes are when a ballot wasn't counted because more than one candidate was chosen. An undervote is when the ballot left the spot for governor blank or the machine did not record any choice.)

Here's the main things the new report shows:

A total of 82,402 voters cast ballots, but for a multitude of reasons they did not cast a valid vote for governor. To put that in context that about 1.36 percent of all ballots cast.

Now of course Scott defeated Crist by 64,145 votes.

But a closer look at these numbers show that it is unlikely that these ballots would have changed the outcome.

For example, 14,362 voters did not have their votes counted for governor because they had an invalid write-in vote. Think someone writing say Mickey Mouse or Jeb Bush in the write-in space as one of the reasons these weren't counted.

Another 4,751 votes rejected were provisional ballots.

The report doesn't exactly say why these ballots were rejected. So it could have been because of overvotes or undervotes but it also could mean that the voter for whatever reason wasn't qualified to vote. The law regarding provisional ballots is very strict. Someone can have their provisional ballot rejected for just voting in the wrong precinct.

But the report hints there was a much more clear reason why Scott pulled it off. And that's this time around voters were much more sure about who they wanted for governor.

When comparing the 2014 election to the 2010 election the numbers suggest that the Scott campaign goal to provide voters a deep contrast between the incumbent and Crist _ and reinforced by tens of millions of negative campaign ads _ was in fact truly successful.

That's because the percentage of undervotes _ which is where a person left their ballot blank _ fell between 2010 and 2014.

Back in 2010 the amount of ballots left blank was 1.49 percent versus .93 percent this time around.

So in other words, 81,250 voters skipped the governor's race for whatever reason in the 2010 election. That number fell to 56,037 in 2014.

That's even more notable when you consider that the number of people who voted in the race overall went from 5.35 million to 5.95 million. So the electorate grew, but the number of people turned off by the governor's race still dropped.

One last takeaway from the report is that the push to get more people to use absentee ballots has a downside.

While the amount of undervotes declined, the percentage of people who voted for more than one candidate increased. It went from .07 percent in 2010 to .20 percent in 2014.

Of the 12k overvotes more than 7,000 showed up on absentee ballots.

That's not a complete surprise since a voter doesn't get a chance to re-do their ballot if they vote absentee. If a voter overvotes while using an optical scan machine at a polling place, the voter has a chance to re-do the ballot. (In fact, the state's own report gives a technical explanation that states that the percentage of overvotes may be underrepresented.)

Still despite all of that the Department of State concludes it found no evidence that ballot design or ballot instructions contributed to any voter confusion during the 2014 election.

Guess that is something the Scott campaign can agree with.

Unlikely allies: Democrats and Scott administration defend write-in loophole

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.

Charlie's November surprise

Charlie Crist's grand entrance into the governor's race occured Monday morning and there's sure to be a lot of analysis and speculation about how Crist will fare against incumbent GOP Gov. Rick Scott.

But lost in the flurry of analysis - and the constant public relations barrage from the Republican Party of Florida dissecting Crist's lengthy political career - is that there is one big change that has happened that could impact Crist's campaign for governor.

And that of course is that this year the Republican-led Legislature - instigated primarily by House Speaker Will Weatherford - did a major overhaul of the state's campaign finance laws.

This past Friday key portions of that overhaul - higher campaign limits - kicked in.

From now on, candidates in statewide races can collect up to $3,000 from each individual contributor _ or six times more than the previous limit of $500.

But what legislators did not alter was Florida's public campaign financing system. That's the system that allows candidates for statewide office to get matching funds from taxpayers for contributions they receive.

Crist has relied on public matching money in the past, collecting $3.3 million in his successful 2006 run for governor.

One could argue that what legislators did, however, was sharply dilute the impact of public financing in such a way that might make it meaningless going forward.

Under the law candidates get contributions that either double - or matched equally - the amount of money they received from certain contributors (The prime qualifications being that the contributor is a Florida resident and a real person as opposed to a Florida-based corporation.)

But when legislators changed the law they left the current amount candidates receive in matching money unchanged.

That means the most that Crist could get from the state is $500 in matching funds for each eligible contributor who donates money.

The way it works is that candidates get a two-for-one match for every contribution up to $250 that is part of what is called the "threshold" to be eligible for public financing. The threshold for candidates for governor is $150,000. Then candidates get a one to one match _ with a maximum of $250 _ on the remaining eligible contributions.

Yet there's another catch here: Candidates who wish to receive public campaign funding must agree to abide by campaign expenditure limits. During the 2014 campaign the limit according to the Division of Elections is $25 million.

Scott, who did not collect public financing last time because he used more than $70 million of his own money, is of course not going to abide by these limits. He's already publicly proclaimed his intention to spend collect and spend tens of millions on his re-election effort. (Note: Scott also successfully sued to strike a key portion of the law that gives extra money to a candidate opposed by someone who exceeds the spending cap.)

Under the wording of the law Crist can also exceed the $25 million cap but only after the non-participating candidate "exceeds" the expenditure limit.

Note the word there - once the "candidate" - exceeds the limit. That means the official campaign account of Gov. Scott. It does not mean Let's Get to Work, his 527 that has already collected $18 million since the summer of 2011 and is going up with its first ad buy this week.

There are also ways the Republican Party of Florida can assist Scott as well that would not count toward the total.

It's therefore conceivable _ although slightly improbable _ that Scott's official campaign could never hit the cap because of all the heavy lifting done elsewhere.

Now, was this all done by design?

Sen. Jack Latvala, the Pinellas County Republican and chairman of the Senate Ethics and Elections Committee, said no. He said that the potential impact of public financing didn't even come up during the work on the overhaul.

"You tend to forget it's even on the books,''  Latvala said.

The question, however, for Crist is whether or not the strings and limitations associated with the law will be worth it.

Chief Financial Officer Alex Sink during her closely contested race against Scott opted not to accept public financing out of concern that Scott would attack her for using taxpayer money for her campaign. After losing by roughly 60,000 votes there was a lot of after-the-fact speculation that the $4 million she was eligible for could have helped close the gap with Scott.

Today of course none of this matters. But it could matter next year when Crist will be scrambling for every dollar in an effort to keep up the large amounts of money Scott and the Republicans will spend to keep the governor's mansion.