ATLANTA — Even as state party leaders nixed plans Monday for a Democratic primary revote, a pair of Hillsborough County party officials pressed forward with a court challenge.
A three-judge panel for the 11th Circuit Court of Appeals heard arguments that Florida Democrats have been unfairly stripped of their voice in choosing a party nominee.
The judges offered a skeptical ear as to whether they have any role in settling the matter, which the Democratic National Committee says is essentially a family matter. The judges' questions certainly left doubts as to whether they will step in.
An attorney for the DNC expressed hope that whatever the outcome of Monday's hearing, which may not be known for weeks, some or all of Florida's delegates will be seated.
"We're continuing to talk to the Florida Democratic Party," said Joseph Sandler, an attorney for the DNC who presented the party's side Monday.
Democratic political consultant Vic DiMaio filed suit in August claiming the DNC denied him a meaningful voice in picking the party's presidential nominee this year. The party has stripped Florida of its 210 delegates to the Democratic National Convention for holding its primary earlier than party rules allow.
DiMaio's attorney, Democratic Executive Committee chairman Michael Steinberg, argued before the panel that Florida voters are being denied their right to equal treatment guaranteed by the Constitution. That's because four other states this year got to vote before the Feb. 5 cutoff set by the party — Iowa, New Hampshire, Nevada and South Carolina.
"You're allowing some states to have more influence in the outcome of the primary than others," Steinberg said.
But Steinberg, a Social Security attorney by trade, appeared flat-footed at times as the judges grilled him with questions and he struggled to make his argument.
The judges wanted to know how DiMaio has been harmed by the DNC ruling. They noted that the Florida Democratic Party, also named in the suit, could still elect to hold caucuses that would satisfy the national party's rules and let Florida Democrats be heard.
Judge Gerald Bard Tjoflat observed that the primary process itself, with its varied methods of gauging voter sentiment, treats people in one state differently than those in another.
"They're certainly not treated the same when we have primaries in one state and caucuses in another state," Tjoflat said.
Those are some of the points that led U.S. District Court Judge Richard Lazzara to dismiss the case in October. The judge said the suit was fundamentally flawed on legal grounds.
The DNC has long maintained that, as a private organization, it has the right to set rules for how it conducts its primaries, and to enforce those rules when they are broken. Those rights also are constitutionally guaranteed, under First Amendment protections for freedom of association.
Lazzara upheld that assertion in October, well before it was clear that the Democratic nomination would be so unsettled this far along in the primary season. Thus far, Sen. Barack Obama has a narrow lead over Sen. Hillary Rodham Clinton in most estimates of delegates earned by both candidates, and neither may be able to secure all of the delegates necessary to win the nomination.
Clinton handily won both Florida and Michigan — where she was the only one on the ballot due to a similar timing dispute — and could desperately use the delegates now.
"The door remains open for the Florida Democratic Party to submit a plan that complies with the rules," Sandler said.