The dust-up over using state employees to finalize election ballot paperwork for the merit retention of three Florida Supreme Court justices is more political jockeying than a legitimate concern over lawbreaking. A conservative legislator upset with the court is exploiting the situation by calling for a criminal investigation. In fact, public employees commonly notarize election documents, and a cursory review should suffice. Gov. Rick Scott should not inappropriately politicize the merit retention election in November by overreacting.
Justices Fred Lewis, Barbara Pariente and Peggy Quince scrambled to complete their ballot paperwork before last month's filing deadline. After the three justices were notified by state election officials of the oversight, they took a break during a redistricting hearing to complete the required loyalty oath of office and financial disclosure forms. Court staffers notarized the documents.
Typically every six years the public is asked through a merit retention vote whether a justice should keep his or her job. The idea is to give voters a process to remove incompetent or corrupt justices. It is not intended to be a referendum on a justice's decisions, which could cause justices to avoid making politically unpopular but legally accurate rulings. No justice has been ousted through merit retention since its adoption in the 1970s.
Lewis, Pariente and Quince are facing organized opposition from Restore Justice 2012. The tea party-backed group denounces the justices as "activists" because of a 5-2 ruling that removed a misleading constitutional amendment from the 2010 ballot. The amendment purportedly allowed Floridians to escape the requirements of the individual mandate under federal health care reform.
The amendment had been sponsored by state Rep. Scott Plakon, R-Longwood. Plakon seized on the notarizing incident to ask Scott for a law enforcement investigation into whether the justices illegally used state employees for electioneering purposes during working hours. Scott is reportedly considering the request, but he should deny it.
A legal opinion written for the justices' campaigns by attorney Barry Richard, who represented George W. Bush in the 2000 Bush vs. Gore case, notes that for years employees in offices of supervisors of elections and court clerks have notarized documents for the public during working hours. It is a politically neutral activity that merely confirms the identity of the document's signatory, and it doesn't offend the law by dipping into electioneering.
In 2010, all four justices up for merit retention used public employees to notarize qualifying documents and no one raised a concern. Dan Stengle, the justices' campaign counsel, says judicial qualifying documents are "universally handled" using in-house notaries. He points out that all the District Court of Appeal judges up for merit retention this year used notaries who are public employees.
If the governor ordered the Florida Department of Law Enforcement to investigate, the result could be a long, open investigation that puts the justices under an unnecessary cloud and provides campaign fodder for those looking to oust them for political reasons. Scott's office can easily confirm the routine nature of the justices' paperwork, and that should put the matter to rest.