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Florida Supreme Court weighs opening state’s closed primaries

There are 3.6 million unaffiliated voters who cannot vote in Florida’s closed primary system. Will that change in 2020?
Members of the Florida Supreme Court listen to Gov. Ron DeSantis' speech during a joint session of the Florida Legislature in March. Left to Right are: Chief Justice Charles T. Canady, Ricky Polston, Jorge Labarga, Alan Lawson, Barbara Lagoa, and Robert J. Luck. There are now five members of the court after Lagoa and Luck were appointed to the 11th District Court of Appeal by President Trump. [SCOTT KEELER  |  Tampa Bay Times]
Members of the Florida Supreme Court listen to Gov. Ron DeSantis' speech during a joint session of the Florida Legislature in March. Left to Right are: Chief Justice Charles T. Canady, Ricky Polston, Jorge Labarga, Alan Lawson, Barbara Lagoa, and Robert J. Luck. There are now five members of the court after Lagoa and Luck were appointed to the 11th District Court of Appeal by President Trump. [SCOTT KEELER | Tampa Bay Times]
Published Dec. 3, 2019
Updated Dec. 4, 2019

TALLAHASSEE — The Florida Supreme Court heard arguments Tuesday over whether to include a proposed ballot initiative on the 2020 ballot that could significantly alter state politics in Florida.

The question, known as All Voters Vote, asks voters to open the state’s closed primary system to all voters and end the practice that has shut out nearly one-third of all voters from selecting who gets on the general election ballot.

Under current law, only when a candidate has no opposition from outside their party can all voters cast a vote in that race in the primary. But for the past decade, new voters in Florida have increasingly rejected both major parties and registered as having no party affiliation.

That means there are now 3.6 million eligible voters — or about 27% of the electorate — who are unable to cast ballots in primary elections for Congress, the Legislature and president in 2020 because they have registered as no party affiliated.

The proposed constitutional amendment, if passed, would allow all registered voters to vote in primaries for state partisan offices regardless of the party affiliation of the voters or candidates beginning in 2024. It would not apply to federal races for Congress or president. The candidate who receives the most votes and the runner-up would advance to the general election.

If the court concludes that the proposal is not misleading, it will appear on the 2020 ballot, where it must receive 60% of the vote to become law.

Proponents argue it is needed to break the lock polarized politics is having on government and provide an incentive for elected officials to listen to a broader swath of voters rather than their party’s base.

Florida is among a minority of states where primaries remain closed to voters outside the political parties. But the proposal is not popular with Florida’s Democratic and Republican parties, which have already lost clout against candidates by the influx of unlimited campaign cash into political committees from wealthy donors and powerful interest groups.

Their attorneys argued that the amendment misleads voters by not telling them that the primary election process will be fundamentally changed.

“The amendment is redefining what has been in place for over a century,” said Benjamin Gibson, lawyer for the Republican Party of Florida, referring to the primary system first established in 1913.

“It is not with what the summary says but what it doesn’t’ say,’’ said Robert McNeely, lawyer for the Democratic Party of Florida. “It doesn’t say voters would lose the party nomination. It doesn’t say if parties want to nominate a candidate, they must do so with a undisclosed process that has never been used.”

But most of the five justices appeared to disagree. (Justices Robert Luck and Barbara Lagoa have left the court after recently having been appointed to the 11th District Court of Appeal by President Trump.)

Chief Justice Charles Canady quoted from the text of the ballot summary, which says that “all candidates for an office, including party nominated candidates, appear on the same primary ballot. Two highest vote getters advance to general election.”

“I’m just baffled by that argument,’’ Canady said.

Justice Alan Lawson said that the ballot summary “explains what it does accurately, and the implication should be clear to anybody who has a basic knowledge.”

Justice Ricky Polston noted that nothing prevents the Legislature from authorizing political parties to conduct a pre-primary to select its nominee for the primary ballot, thereby creating three elections in some cases as the state used to have before it abolished the run-off primary.

Under the current system, fringe groups within a party and large donors to a party can threaten to put up a candidate against an incumbent in order to persuade him to vote a certain way. The tactic, known as being “primaried” has worked to keep candidates of both parties from moving to the middle on many key issues before them.

Canady also noted that Florida has non-partisan primaries in cities, school boards and judicial elections “so the idea that the concept of a primary is exclusive for party nominations flies in the face of the election code.”

Justice Carlos Muniz recited a common complaint Florida justices often have with the way the state’s constitutional amendment process is handled.

“My problem with this whole area of the law is there is so much subjectivity and so little guidance,’’ he said. “...The summary doesn’t tell us how the status quo will be changed because we don’t know how it’s going to change.”

He said the parties could nominate candidates through another election and have those candidates appear on the primary ballot, but “the summary really doesn’t tell the voters about that choice.”

Glenn Burhans, a lawyer with the Stearns Weaver Miller law firm who drafted the ballot language, responded to Muniz: “I respectfully disagree” and said that the title and summary together adequately inform voters of the potential outcome.

“The chief purpose here is to allow all voters to vote in the primary they are current blocked from voting in,’’ he said.

Known as the “Top Two non-partisan primary system,” a similar process has been used in the state of Washington since 2004, in California since 2010, in Louisiana since 1975, and in Nebraska since 1936.

Also known as the “nonpartisan blanket primary”, or “jungle primary,” all candidates for the same elected office, regardless of respective political party, run against each other in a primary and the two top winners advance to the general election.

Gene Stearns, a Miami attorney and former adviser to Gov. Reubin Askew, first proposed the amendment in 2015 but was unable to get enough funding to gather signatures in time for the 2016 ballot. He said that when California adopted its open primary system it forced lawmakers to start working together to get things done.

“They not only have a balanced budget, they have an $8 billion surplus this year and they couldn’t even adopt a budget before this happened,’’ he said. He believes Florida’s state government has become equally dysfunctional.

“Florida politics are fundamentally broken because partisanship is out of control,’’ he said.

All Voters Vote has gathered enough signatures to be on the ballot in large part because of a $6 million infusion from Miami healthcare mogul Mike Fernandez.

Fernandez, a former Republican who renounced his party affiliation, told the Miami Herald in 2017 that Florida’s primary election system creates politicians more beholden to their political parties than the people of Florida.

The Florida Democratic Party voted last month to oppose All Votesr Vote if it gets on the ballot, in part because it allows voters from the other parties to strategically vote on the opposition’s nominees.

Attorney General Ashley Moody, a first-term Republican, also urged the court to keep the amendment off the ballot.

“The proposed ballot language does not open Florida primaries, it eliminates them, and gives party bosses — not voters — sole discretion over the party candidate nominating process,” Moody said when she announced her opposition in October. “This proposed summary does not disclose that fact to voters and would undo a system set up to prevent political corruption and closed-door deal making.”

Burhans disagrees. “This is not about trying to skew the table towards one party or the other,’’ he said. “Its just resets the table to create a dialogue for politicians, without fear of getting ‘primaried’ by someone who is more extreme.”

Mary Ellen Klas can be reached at meklas@miamiherald.com and @MaryEllenKlas

All Voters Vote Proposed Ballot Language:

All Voters Vote in Primary Elections for State Legislature, Governor, and Cabinet

Article VI, Section 5

Summary: Allows all registered voters to vote in primaries for state legislature, governor, and cabinet regardless of political party affiliation. All candidates for an office, including party nominated candidates, appear on the same primary ballot. Two highest vote getters advance to general election. If only two candidates qualify, no primary is held and winner is determined in general election. Candidate’s party affiliation may appear on ballot as provided by law. Effective January 1, 2024. View Full Text

Related Links: Financial Impact; Financial Information; Additional Information

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