The Fine Print

Florida turned upside down: 5 takeaways about the 2018 election

  With just under 100 days left before Florida voters decide the crucial 2018 election, President Donald Trump held a boisterous rally on Tuesday night with 10,000 people in Tampa where he enthusiastically urged his supporters to back U.S. Rep. Ron DeSantis for governor in the upcoming Republican primary.

Trump's backing of DeSantis is already being seen as a fatal blow to Agriculture Commissioner Adam Putnam, who for most of the last year appeared to rolling smoothly in his quest to succeed Florida Gov. Rick Scott.

1 big takeaway....The Trump primary

The rally in Tampa and the downward drag on Putnam emphatically shows the outsized importance of all things Trump in the Aug. 28 primary.

In a year when toxic algal blooms are fouling the state's waters ,the shooting at Parkland prompted a reluctant Florida Legislature to act on guns, and Stand Your Ground laws are once again being scrutinized- the defining issue in the primary remains the president.

On the GOP side, it's more than just the holding a rally and tweeting out his support. Candidates up and down the ballot in the Sunshine State are arguing with each other on whether someone is a true believer - or whether someone had once been opposed to Trump before his election in 2016. Case in point: Sen. Greg Steube unearthing old tweets by Rep. Julio Gonzalez to paint him as a "Never Trumper." 

Democrats, meanwhile, are skirmishing over who is the most-anti-Trumper, and how strong their opposition is. Tallahassee Mayor Andrew Gillum likes to point out how he's calling for Trump's impeachment, while candidate Jeff Greene has called Trump a "traitor." Gwen Graham has called Trump a "bully' and "embarrassment." But this fervor isn't contained to just the governor's race. It's playing out in numerous congressional contests as well.

This election cycle is now worlds away from ones where issues such as class size, education, health care and job growth dominated.

In some ways, it began in 2010 when Gov. Rick Scott used criticism of President Barack Obama and fears of rising national debts as a key part of his campaign. But Scott also highlighted immigration and his plans tor turning around the state's economy as other parts of his campaign message.

Just before Trump took stage, the Putnam campaign recognized this new reality that has turned the state's politics upside down.

In a statement Putnam praised Trump, yet at the same time bemoaned that DeSantis "has released zero plans on any Florida issue since announcing his campaign." 

 2. End of traditional campaigns?

The potential demise of Putnam also shows that the tried-and-true methods used by so many candidates in the past are becoming less and less important.

In 2010, Scott's victory showed that an onslaught of television ads could bury a rival who had built up a campaign organization. But if DeSantis wins it shows that a presidential endorsement - and a bevy of appearances on Fox News - can blunt money, staffing and organizational advantages. (It also shows the diminished impact of local media in a world where everything is seen through a DC-centric, not Florida-centric lens.)

Florida's primary usually has been decided by a small subset of voters. Only 22 percent of voters turned out in the 2010 primary. Normally this would mean that a campaign needed to chase absentee voters and engage in a robust campaign of phone calls and personal contacts in order to get voters to participate. That's why a superior organization was considered crucial.

But another key question emerging this cycle is the role of television ads.

Several campaign consultants have said that TV remains a huge factor in Florida, especially among older voters. There's a possibility, however, that the winning candidate from both the GOP and Democratic side will not have spent nearly as much money on television ads as their rivals. As viewing habits - and consumption of information changes among young voters- it's worth noting that this could be a turning point.

3. Recycling the playbook

There is one campaign that is sticking to some tried-and-true strategies and that's the one Scott is mounting against incumbent U.S. Sen. Bill Nelson.

Scott has sold himself has a successful businessman, but that career was overshadowed by scandal. Scott was forced out as CEO of Columbia/HCA shortly after a federal investigation became public. The end result is that Scott's former company paid a then-record fine of $1.7 billion to settle allegations of fraud.

So in three straight elections Scott campaign team (which includes many of the same consultants each time) has gone on the offensive: It's the other candidate who has ethics problems. They took the state plane, they helped a crook defraud investors, etc. The early press releases and even some of the ads in this year's campaign echo this. They are all designed to force Nelson to defend his actions and behavior. It can be argued that some of the actions aren't of equal weight, but that's not the point.

Two other elements at work: Scott in 2010 and 2014 assailed Obama and his policies and tried to link them to the Democratic nominee. Bashing the federal government was part of the governor's talking points and script. Trump's ascension has made that trickier,  but now it's shots at Democrats like Nancy Pelosi and complaints in general about how DC is dysfunctional (no matter that Republicans are in control.)

Last item: Ahead of 2014, Scott made sure to use his power as governor to sidestep or try to mitigate potential controversies bubbling up, especially those happening in key Republican strongholds. It appears to be happening again this year as well.

4. Which voters will show up?

When you talk to those who waged campaigns against Scott, aside from the finger-pointing over went wrong, the real frustration is that he squeezed by each time.

Scott won by nearly 62,000 votes (about 1.2 percent) in 2010 and more than 64,00 votes (1 percent) four years later.

Overall turnout in both elections hovered around 50 percent and Democrats seemed unable to generate the kind of turnout they needed in Democratic strongholds to overtake Scott. (Turnout in the last three presidential contests _ two of which were won by Obama _ have been at 70 percent or above.)

This, however, was before the age of Trump.

Now of course there predictions _ and attempts to debunk _ the notion of a "blue wave" that will translate displeasure with Trump into success at the ballot box. Various Democrats have engaged in back-and-forth over what will make the difference this year: Is it a candidate that appeals to young voters, women voters, or progressives? 

But here's another factor for the Republicans _ and the DeSantis camp especially _ to consider: Can they replicate Trump's numbers?

Trump's 2016 victory over Hillary Clinton in Florida was significant because Clinton actually got more votes than Obama did the two times he carried the state. She came in within 6,000 votes of Trump in places like Duval County.

The difference, however, is the margins Trump rolled up in Republican dominated or Republican-leaning counties, fueled in part by an "impressive" surge of voting that took place on Election Day. (See: Election Daze: Voting Modes and Voter Preferences in the 2016 Election - Authors - Smith, McKee, Hood).

And that translated into substantial margins not previously seen. In Lee County, for example, Trump got 44,000 more votes than Mitt Romney did just four years earlier. Will these voters in Florida who propelled Trump victory two years ago transport their support for the president into this year's midterm?

5. The Puerto Rican Diaspora

Last Saturday San Juan Mayor Carmen Yulín Cruz endorsed Nelson in his battle against Scott and while doing so repeated criticisms against Trump and how his administration responded in the aftermath of last year's Hurricane Maria.

It was the latest chapter in an ongoing push by both Republicans and Democrats to appeal to tens of thousands of Puerto Ricans who flocked to Florida after the devastating storm.

Both Nelson and Scott have traveled to the island territory. Scott for his part offered assistance to Puerto Rican evacuees, even going so far as using his emergency powers to sidestep the Legislature in order to pay for it. Candidates for governor have also focused on Puerto Rico. He stared airing a Spanish-language television and digital ad on Wednesday that stressed he had helped Puerto Ricans.

Former Miami Beach Mayor Philip Levine chartered a plane and delivered supplies shortly after Maria struck. Gillum traveled to San Juan last weekend.

There are open questions, however, about the impact that evacuees will play in Florida's election.

The Washington Post pointed out a few days ago that so far there is little indication that the Puerto Ricans who left the island are registering to vote in the state.

There's still time for that to change as the election moves closer. But as Orlando legislator Amy Mercado noted to the Post: "Their main focus obviously is going to be survival...The last thing they are thinking about is politics."

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." 

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.

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.

The one number that Rick Scott and Charlie Crist should care about

It's 81,153

And as we talk about vote totals, ad buys, and self-funding in the bitter brutal contest between incumbent Gov. Rick Scott and challenger Charlie Crist, why is that number relevant?

Because that's the number of Florida voters who decided it wasn't worth their while to cast a ballot in the governor's race four years ago.

The contest between Democrat Alex Sink and Scott, which included a heavy dose of negative ads and lots of talk about HCA/Columbia and Medicare fraud, caused a spike in the number of so-called "undervotes." Undervotes are when voters choose, for whatever reason, to leave the ballot blank in a particular race.

The state tracks undervotes and overvotes as part of an exercise to make sure there aren't technical problems with the election.

And the report released several months after the tough 2010 election showed that the number of Florida voters who skipped the governor's race nearly doubled from what it was in 2006 when Jim Davis squared off against Crist.

That same report also showed that by contrast the number of voters skipping the U.S. Senate battle featuring Crist, eventual winner Marco Rubio and Kendrick Meek dramatically declined from what it had been during the 2006 U.S. Senate race.

In the end that number of 81,153 is pretty significant because it exceeded the final margin of a race that won by Scott with just 61,550 votes.

Much has been made in the last few days - by both the Crist and Scott campaigns - about how many voters are in the bank and whether the 2010 or 2012 turnout model is the best one to measure the current vote totals.

The numbers from Monday showed that 1.82 million people had already cast ballots and that the GOP had roughly an 8 percent edge. There's lot of analysis about what this means and if the numbers are showing that the Democrats are performing better than they did in 2010 when Scott narrowly won.

The undervote numbers, however, should cause everyone to pause for a moment.

Just because someone voted still doesn't mean that they filled in the oval for either Crist or Scott.

The 2010 numbers shows even voters casting absentee ballots, who are considered super motivated, can still skip a contentious race where both candidates are seen as unlikable or untrustworthy.

The numbers from four years ago show that 25,000 - or roughly 2 percent of all absentee ballots cast - did not contain a vote for governor. That was a higher percentage of blank ballots than votes coming either from early voting sites or on Election Day itself.

So while a lot of speculation can be made about the votes in the bank, this trend from four years ago is another reminder that it may be premature to render grand predictions just yet.

The Scott-Crist clash, with as much as $100 million being spent on television ads from their campaigns and their allies, may in fact generate as high or even higher rate of undervotes if voters are disenchanted with either of their choices (and choose not to vote for Libertarian Adrian Wyllie.)

The latest Quinnipiac University poll put Crist's favorable rating at 42 percent and Scott's at 40 percent. So according to pollsters, a majority of Floridians surveyed did not like either candidate.

Four years ago Quinnipiac's final poll before the 2010 election put Sink's favorable rating at 43 percent and Scott's at 34 percent.

Just something to think about in the final days.

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.

5 biggest questions of the 2013 session

Florida's GOP-controlled Legislature kicks off its annual session on Tuesday amid the backdrop of Gov. Rick Scott's aggressive move to the center as he continues to battle stagnant poll numbers. Both House Speaker Will Weatherford and Senate President Don Gaetz have their own agendas but the big focus for the next 60 days is whether or not lawmakers will help the incumbent Republican governor or damage him further as he gets prepared for what could be a very tough re-election campaign.

Here then are the 5 biggest questions of the 2013 session:

1. Will lawmakers agree to expand Medicaid? This is a decision that could have repercussions for years to come.

Scott's decision to endorse the expansion of the safety-net health care insurance program for three years to take advantage of billions in federal aid was widely criticized by conservatives and even top fellow Republicans.

The governor has said this is not one of his top priorities, but his decision to endorse the expansion right before the session means that if the Medicaid expansion is rejected it will be seen as a loss for Scott.

The House has already come out forcefully against the expansion and Weatherford is expected during his opening day remarks to articulate the rationale behind that stance. The Senate has taken no official position yet although comments in recent weeks suggested that Senate Republicans have been contemplating expansion seriously.

There are some suggestions that the House may use Medicaid expansion as a bargaining chip for other issues which if true carries its own share of risks, including bringing down the wrath of conservatives and tea party groups on to House Republicans if they change their mind over the next nine weeks. But if the House and Senate goes different routes it sets the stage for an impasse over the entire budget...which means the session may not end on time.

What could emerge is a hybrid solution: Some limited expansion of Medicaid that comes without the full funding of the federal government, but offers an answer to critics who contend the state is turning its back on roughly 1 million uninsured residents. There is also a lot of interest in the deal offered to the state of Arkansas which has been allowed by the feds to purchase private health insurance for those below 133 percent of the federal poverty line instead of placing those people into Medicaid.

2. Will Scott get his pay raise for teachers? The debate over Medicaid expansion has overshadowed what could have been the biggest storyline of the session: Will Republican legislative leaders go along with Scott's budget proposals, including his pitch for a $2,500 across the board pay raise for teachers in the state.

Scott has made it clear that the teacher pay raise - and his push to eliminate sales taxes on equipment purchased for manufacturing - are his top two priorities this year.

In his State of the State speech Scott will tell lawmakers: "Some say they are afraid that giving raises to all teachers may mean that a teacher doing a bad job gets rewarded. But, thanks to our work, we are now in a better position than ever before to reward good teachers and move bad teachers out of the classroom....We don’t want a war on teachers; we want a war on failure"

But both Weatherford and Gaetz have so far given only lukewarm endorsements of the proposal. Instead the two legislative leaders have questioned if the raises would undermine the new merit pay system that is supposed to take effect next year.

Again, we have a potentially awkward situation where the Legislature has the power to either help Scott as he moves forward - or damage him.

3.Is Jeb Bush still in charge? Former Gov. Bush visited Tallahassee a few weeks ago and he met with legislative leaders as well as an enthusiastic group of House Republicans. At the tail end of a closed door session with the House members he was asked about the contentious Medicaid expansion issue. Bush told them that they should reject the expansion, but that they should offer up an alternative deal. So far the House has followed through on part one of that advice.

But that's far from where the Bush influence ends. Bush - who battled mightily against the state's teacher union while he pushed education changes  - refused during that brief stop to publicly take a position on Scott's pay raise proposal. No one should believe he doesn't have an opinion. Instead it should be viewed that Bush adheres to the protocol of avoiding any public policy disagreements with a sitting Republican governor.

There is also expected this year to be a repeat of last year's heavily-debated "parent trigger" bill. Bush steadfastly supports the legislation, which is expected to have a smoother trip this session. So if Medicaid expansion and teacher pay raises go down and parent trigger is passed then Bush will have a better session than the current occupant of the plaza offices in the Capitol.

4. A kinder, less partisan Legislature? In the run-up to the start of the session (and before Monday's Medicaid expansion stance that drew the wrath of Democrats), there had been signs that the Legislature may chart a less confrontational path than in previous years.

Case in point is the proposal to revamp the state's election system. It was the supercharged 2011 Legislature that passed the controversial election law that cut short early voting days. Republicans - who enjoyed a super-majority at the time - pushed the bill through despite strong warnings from Democrats it would backfire on them.

This year we have Republicans attempting so far to work with Democrats on rolling back some of the provisions of the 2011 law and making other changes in order to avoid a repeat of last fall's election where people wound up waiting hours in line in order to vote. Democrats are not in complete agreement, but this is still a marked change from just two years earlier.

It could be that the 2012 elections - where President Barack Obama won Florida a second time and Republicans lost seats in the Legislature - might have been a wake up call that the GOP needs to moderate its message and image.

So far we have not seen a wave of legislation that is intended to fire up the Republican base heading into 2014. The normal pattern is that the off-year session is the year that lawmakers are more likely to adopt controversial items. This could be the year that breaks that trend.

5. Is this really the year for serious ethics reform? Both Weatherford and Gaetz have vowed that this is the year that legislators will enact far-reaching changes to the state's ethics laws. The Florida Senate is expected to take up - and probably pass  - the ethics bill on the first day of session.

The reason this is a big deal is that grand juries and former governors have tried to get the Legislature to crack down on public officials in the last decade but those efforts went nowhere.

The Senate bill creates for the first time a mechanism that allows the Florida Commission on Ethics to initiate an investigation based upon a referral from the governor or law-enforcement agencies. (It also makes it harder for people to file complaints right before an election based on newspaper stories.)

Weatherford for his part supports ethics reform, but he also said time and time again that ethics reform can't be done without "campaign finance" reform. Translation: We take your bill if you take our bill.

It's likely that some kind of deal will get reached and legislation dealing with both will pass. But the key is what gets dumped, altered and changed by the time legislators reach the finishing line.

Will it be the far-reaching changes that legislative leaders have vowed? Or will it be incremental changes that maintain some of the current loopholes in the system?

How can Rick Scott regain momentum in 2013?

Amid the last round of lackluster poll numbers for Gov. Rick Scott political consultant Tony Fabrizio in mid-December wrote a one-page memo where he argued that it was way too early for people to write off Scott's chances for a second term.

Fabrizio used an interesting analogy: If President Barack Obama could win Florida a second time so could Scott. Download 12-19-12 Memo on Q Poll

 "Anyone who dismisses Governor Scott and his chances does so at their own peril. Governor Scott has nearly a year longer to reverse negative numbers similar to what the President had, therefore it seems irresponsible and hasty to count the governor out from making an equal, if not stronger, turn around."

Democrats this past weekend loudly announced that Scott's defeat will be their primary focus in the next cycle. The challenge of the Democrats, however, will be the ability of the party to have the resources to compete with what could be a very expensive race. And make no mistake: There are some in "Scott world" who are not troubled by former Gov. Charlie Crist as the nominee. That's because this will allow the campaign team to draw a clear contrast, especially when it comes to comparing how the state's economy fared under Crist and how it has fared under Scott.

It could also be argued that some of Scott's recent policy initiatives on tuition, voting and now teacher pay raises are aimed squarely at muting Crist on those same issues. Crist for example in 2009 signed the bill that gave universities in Florida the ability to raise tuition up to 15 percent a year until Florida's tuition rates reach the national average. Contrast that to Scott's firm insistence that tuition be held flat.

But the central question remains: What can Scott do on his own to turn things around in the coming year and heading into 2014?

The plain fact is that governors - unlike the president - have a much more limited fashion in which to engage with the public and convince them they are doing a good job.

One way is completely out of Scott's control: Show leadership through a crisis such as a natural disaster. Part of the enduring legacy - for example - of former Gov. Jeb Bush is the way he dealt with the wave of hurricanes that hit the state.

The difficulty for Scott rebuilding his brand and image in the second half of his term is that in many ways he's already been like three different governors.

Thanks to three different chiefs of staff he has approached governing, his agenda and his interaction with the press in distinct ways.

The first phase of Scott's governorship - where he was surrounded by people who helped his campaign including defacto chief of staff Mary Anne Carter - the governor staked out positions that excited the base of GOP voters who propelled him in the Republican primary and helped him get a narrow win over Democrat Alex Sink. He unveiled a budget that cut funding for education, he rejected billions in federal aid for high speed rail, he clashed with the Florida Legislature and his staff had a bunker mentality with the press.

The second phase under Steve MacNamara included a decision to have Scott engage in a two-way strategy with the press: Open up more to the mainstream media while also appearing on conservative talk radio shows to keep the base engaged. Also put in place was a more calculated strategy of trying to work with the Legislature. Take on the winnable battles like auto insurance reforms, avoid direct engagement (like in casino gambling) on issues that have an uncertain chance of success. Scott jettisoned parts of his campaign agenda such as pushing tough new laws on immigration. He became more accommodating to legislative initiatives and even embraced some of them such as the creation of Florida Polytechnic University. And Scott tried to undo the damage caused in the first phase by pushing for a funding increase in education.

Now with current chief of staff Adam Hollingsworth we have the third phase. Yet another strategy with the press. There are attempts to appear less rigid and more open to dialogue with opponents (hence the "discussions" over Obamacare with Washington D.C. or the dinner with top officials with the Florida Education Association.) And there's even a full 180-turn on hot topics such as voting where Scott - who signed the law that cut early voting days and defended it court - is now advocating an expansion of early voting beyond what was previously in place.

Moving ahead then here's the avenues left for Scott to try to change his trajectory with voters (outside the hope that the economy will continue to grow and that Scott will get the credit.)

SCOTT'S LEGISLATIVE AGENDA: Like it or not Scott's third year in office will in many ways revolve around what he accomplishes this spring. He will be judged by how much of his agenda is accepted or rejected by the GOP-controlled Legislature. Scott this week will present a budget that in many ways will attempt to highlight his new priorities, such as a flat across the board pay raise for teachers, a freeze on university tuition hikes and a cut in sales taxes for the purchase of equipment used in manufacturing. (More on this later this week)

But it should not be assumed that top lawmakers will bend to Scott's wishes as evidenced by the initial lackluster enthusiasm given Scott's teacher pay raise proposal. And we still don't have a clear idea on what will happen to the implementation of Obamacare, especially on expansion of Medicaid that is now an optional part of the federal health care overhaul. If Scott rejects expansion - which appears likely given his recent statements - will lawmakers buck him and dare the governor to veto it?

Scott's trump card, of course, is that he has the ability to shoot down any legislative proposals that he dislikes and he can use that as leverage to get what he needs.

Given Scott's recent populist turn on voting and teacher pay raises it will be interesting to see if he uses the veto pen as a way to distinguish himself from the Legislature. For example what does the governor do if a bill raising insurance rates for the 1.3 million customers of Citizens Property Insurance were to cross his desk on the eve of this year's hurricane season?

KEEP UP OPPOSITION TO THE PRESIDENT: In some ways Scott was actually better served by having President Barack Obama getting re-elected than having Republican Mitt Romney win. The down side to Obama's re-election is that the president and his allies have the capacity to assist the campaign of someone like newly-minted Democrat Crist. But Obama in the White House gives Scott - and the Republicans in general - something to rail about heading into 2014. You can see the narrative: "I stood up to the president on government controlled health care, we improved the economy without his help, we will not go along with his agenda on guns." You get the picture. And if Obama's numbers go underwater again then Scott gets to link Crist to the president.

SCOTT'S MEDIA STRATEGY: Largely unnoticed by the general public Scott's media strategy has in fact been altered with the entrance of new communications director Melissa Sellers. That's not to say that everything has been smooth sailing (witness the brouhaha over the return of Scott's dog Reagan.) But the press office's new strategy does appear to be one of cooperation (when it benefits the Scott agenda) and less direct confrontation. This means giving some in the press access in the hopes it will create a story that bolsters the governor.

This doesn't mean, however, that the press office is passive. Far from it.

The governor's office appears to be engaged in trying to get Scott's message out (which is amplified by the Republican Party of Florida, whose media operation is lead by former communications director Brian Burgess). It is then left to some of the agencies to push back against stories that the Scott administration does not agree with. Several agencies, for example, in recent months have put out press releases sent to all media outlets that attempt to debunk stories and even editorials that have appeared. (The changes at the Department of Environmental Protection being a key example.)

Meanwhile, the governor's press office is tracking media coverage even more closer than ever before. Emails show that the governor's entire staff is now getting "news alerts" that include snippets of stories and even tweets by capitol press corps reporters just moments after they hit the web and Twitter.

So will it all add up?

It's hard to say.

Part of the difficulty for those working for Scott is some of the missteps in the first two years have been self-inflicted. Democrats may not like some of Scott's policy initiatives but some of them have polled well with the general public i.e. drug testing for welfare recipients.

Those who have dealings with Scott will tell you up front that he studies details and takes times to understand complex policy issues.

But in many ways he has had to "grow up" in public and has drawn attention in ways he probably didn't intend (such as the incident with the King of Spain). In other instances, his staff did not appear to anticipate the political fallout over a decision (i.e. the cutting of the education budget, the signing of the Cuba-crackdown bill.)

The balancing act in the months ahead is whether Scott can find success with the Legislature and the economy and finally reverse his flat-lining poll numbers. Because even during a campaign there's only so much love money can buy.

The 6 counties that could make or break President Obama or Mitt Romney in Florida

In the run-up to today's election, there's been an avalanche of polls, a whole lot of spin and a lot of competing predictions about who will win Florida.

Complaints from conservatives have been that the polls have undersampled Republicans and attributed higher turnout to Democrats than will materialize. Democrats, meanwhile, have also questioned the polling models in different ways, including whether there has been an undersample of young people.

Lost in this back-and-forth is a recognition that the election of 2008 isn't quite what it is made out to be here in Florida.

The dominant thinking is that Barack Obama motivated minority voters and young people and created a surge of turnout in 2008.

But what some may have forgotten is that Republican John McCain got more votes in 2008 than President George W. Bush did when he took Florida in 2004.

McCain got 4.04 million votes when he lost the state while Bush received 3.96 million.

The counter-argument, of course, well there was population growth and more voters so it makes sense McCain got more votes.

But there was actually a higher percentage turnout in several counties that McCain won.

Take Brevard County which runs down the east Coast and is home to Cape Canaveral.

Turnout four years ago in this Republican-dominated county was actually 82.5 percent compared to nearly 79 percent in 2004. Turnout was higher in other red counties such as Clay, Lake, Lee, Pasco, Polk, Santa Rosa, Seminole, and St. John's.

Of course despite this McCain won 53 out of Florida's 67 counties. President Bush, by contrast, won 57 out of 67 counties during the 2004 elections.

The question that needs to be asked is whether or not the ongoing changes in demographic makeup in Florida _ and which continued over the last four years _ have scrambled up the traditional thinking about this state.

For example, there are now 1.66 million Hispanic voters compared to 1.35 million just four years ago. Back in 2008 the number of black registered voters actually outnumbered Hispanics. The total number of black voters grew as well from 1.46 million to 1.62 million.

The end result? Even though the number of white registered voters increased overall their percentage of the electorate actually shrank. So four years ago when Obama won the state whites made up 69.1 percent of the electorate. That number has dropped to 66.5 percent.

Certainly the makeup of the Hispanic vote is not like it is in other states _ and Florida's Cuban-Americans have been reliable Republican voters. Another argument has been that Central Florida Hispanics _ many of whom are Puerto Rican _ don't care as much about GOP nominee Mitt Romney's hard line against immigration as other Hispanics.

But let's look at what happened in several key counties back in the last two cycles. These are the counties that will make or break the state for President Obama or former Gov. Romney.

MIAMI-DADE: This is the one that really jumps out. Turnout was actually HIGHER in 2004 when President Bush was on the ballot. Despite the lower turnout McCain nearly got as many votes - 360,000 - that Bush did. So McCain nearly duplicated what the Spanish-speaking brother of the governor of Florida did in 2004. Of course, what happened is that the number of voters in Miami-Dade grew between 2004 and 2008. President Obama got 90,000 more votes than John Kerry did. That's nearly half of the 236,000 vote margin that propelled Obama to win the state. Even if you go with the Republican talking point that Obama's turnout machine will not replicate what happened previously there's a case to be made that Romney will likely have to do better than the past two GOP nominees in this pivotal county in order to hold down Obama's margin.

(UPDATE: Romney got less votes in Miami-Dade than McCain did in 2008, while Obama took in roughly 42,000 more votes than he did the first time around. And this all happened even though turnout was slightly lower than it was in 2008.)

HILLSBOROUGH: Behind Miami-Dade this is probably the second-most important county to watch on election night. Hillsborough had been trending Republican in recent years, yet four years ago Obama took this county. He got nearly 59,000 votes more than Kerry did despite LOWER TURNOUT than in 2004. Additionally, McCain took in only 236,000 votes compared to 245,000 votes for President Bush. If Obama wins Hillsborough then there's probably a good chance he will take the state.

(UPDATE: Obama did win Hillsborough, and therefore he won the state. Again Obama took in more votes in this county during his re-election bid than he did the first time around. While Romney got a higher vote total than McCain did or President Bush did - he still finished 36,000 votes behind Obama, which was roughly the same number as McCain.)

DUVAL: This county will be in the Romney column. No one doubts that. It's just a matter of how big a lead that Romney racks up here. In 2004 Bush won Duval with nearly 58 percent of the vote. McCain, however, won Duval by a slim margin of 50.6 percent.This is the county that Romney needs to do well in order to offset the margins in South Florida.

(UPDATE: President Obama did lose ground here, finishing with 47.8 percent of the vote in Duval, a decline both in percentage and raw totals from 2008. Yet despite that fact Romney only pulled in 1,000 more votes than McCain did. So in other words, Romney did not get the type of advantage he needed in Duval to offset votes elsewhere.)

ORANGE: This was another county that went big for Obama in 2008. He got roughly 80,000 more votes than John Kerry did four years earlier. But the cut in early voting days _ which as we have seen is favored by Democrats _ did have an impact in this county. Not counting the provisional ballots that were cast on Sunday _ the total number of voters who voted early in Orange dropped from just over 145,000 in 2008 to a little more than 127,000 this year according to Bill Cowles, the elections supervisor there. The county had these lower early voting numbers even though the number of registered voters in Orange has jumped up 14 percent. This would seem to suggest that Obama will not repeat the same margin he got previously.

(UPDATE: In the end the voter turnout in Orange County did dip from 2008. But it made little difference in the raw totals. Obama received about the same number of votes in 2012 as he did the first time around. Romney took in only about 2,000 more votes than the president.)

PINELLAS: This county is worth keeping an eye on as a potential trendsetter. Obama won Pinellas four years ago, while Bush won the county in 2004.But this county actually has FEWER active registered voters than it did in 2008. The voter registration gap between Democrats and Republicans is also smaller than it was previously.

(UPDATE: There was a significant decline in Pinellas. President Obama took in 9,000 fewer votes than he did in 2008. But Romney only picked up about 3,000 more votes than McCain did.)

OSCEOLA: There's a reason that former Gov. Jeb Bush and the Romney campaign made a stop in Kissimmee this past Saturday. This county in Central Florida could be the one to really watch on election night. Four years ago President Obama won the county and received nearly 60,000 votes to slightly more than 40,000 votes. That was a dramatic turnaround from 2004 when President Bush won the county with 43,000 votes. The stakes are even higher this year. Voter registration in this county has grown from just under 137,000 in 2008 to more than 163,000 this time out. The number of registered Democrats in this county grew from just under 60,000 to more than 71,000 while GOP registration went up from 40,96 to 43,588. In other words, this county may be the one that proves or disproves the Obama campaign's much hyped ground game.

(UPDATE: And the shift played out as expected. Obama's lead in Osceola was substantially bigger in 2012 than it was in 2008. His vote total went from just under 60,000 to more than 67,000, while Romney's vote total was nearly identical to McCain.)