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Tampa activist's case to seat Democratic delegates is dismissed but still alive

A federal appeals court has upheld the dismissal of a lawsuit by a Tampa activist seeking to have Florida's Democratic presidential delegates seated.

But the three-judge panel's ruling Friday lets political consultant Vic DiMaio fix technical flaws with the suit and refile it, which a trial judge prohibited. DiMaio said he will.

The ruling also describes the meat of his claim as raising "interesting and potentially significant questions."

The 11th U.S. Circuit Court of Appeals judges' order says they are precluded from exploring those questions until DiMaio fixes the technical problems.

That means the case is likely to land back at the appellate court in Atlanta, because the lower court also dismissed the guts of DiMaio's claim. Democratic delegates pick a presidential nominee at the Democratic National Convention in August, so there's a sense of urgency.

"The trick is, how can we get this done quickly," posed lawyer Michael Steinberg, chairman of the Hillsborough Democratic Executive Committee. Steinberg is representing DiMaio.

The DNC Rules and Bylaws Committee voted in August to strip Florida of its 211 delegates for holding its primary earlier than party rules allow. Sen. Hillary Clinton easily won the Jan. 29 primary, but was awarded no delegates.

Party efforts to resolve the dispute are stalemated.

DiMaio's suit claims Florida Democrats are being punished unfairly, because four other states were allowed to hold early contests. It says Florida voters are not being treated the same as voters of Iowa, New Hampshire, Nevada and South Carolina, and that violates equal protection guarantees in the Constitution.

But U.S. District Court Judge Richard A. Lazzara ruled that DiMaio failed to show standing — or how he was harmed by the DNC decision in a way that a court could fix. It simply recited the DNC actions and asked the court its opinion.

DiMaio filed his lawsuit shortly after the DNC decision, and well before the primary.

Even if his suit had spelled out a controversy needing court remedy, Lazzara ruled that the DNC was free to set its own rules as a private organization, as prior courts have ruled.

The appellate court upheld Lazzara's dismissal on the standing issue, but said DiMaio should get to fix it. It also set aside Lazzara's ruling on the merits of the case until then, sending the case back to him.

"This is a very, very big win for us," DiMaio said. "Before we were just dead in the water."

Sen. Bill Nelson and other Florida Democratic political leaders lost a similar suit, but did not appeal. The DNC issued a statement Friday applauding the latest courtroom decision.

"As two U.S. district courts in Florida have found, and as the Supreme Court has consistently recognized, national political parties have a constitutionally protected right to manage and conduct their own internal affairs," the statement read.

Bill Varian can be reached at or (813) 226-3387.

Tampa activist's case to seat Democratic delegates is dismissed but still alive 03/21/08 [Last modified: Thursday, October 28, 2010 9:45am]
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