Amendment 3 is potentially in trouble; lawmakers turn to Supreme Court to try to block the measure

By: - October 13, 2020 3:10 pm

Credit: Stephen Maturen/Getty Images

Constitutional Amendment 3 — which promises to tear down Florida’s political primaries and build them anew — is the target of a court challenge as the November 3 election looms and voters are already filling in their ballots.

GOP and Democratic lawmakers filed a petition Tuesday with the Florida Supreme Court, seeking to bar state elections officials from enforcing, should it pass, the proposed “top two” or “jungle primary” amendment that justices already have approved for the ballot.

The petition asks the court to issue a rarely granted writ of mandamus — a court order telling a government official to do or not to do something. In this case, they want the court to order elections officials not to certify the amendment should the voters approve it.

Glenn Burhans Jr., chairman of the “All Voters Vote” initiative, appearing on the ballot as Amendment 3, denounced the move in an emailed statement as “a sham” based on “false and misleading data.”

“This is a grotesque misuse of the courts for a political stunt; the claims have no merit,” he added.

“Allowing all voters the chance to vote in elections they pay for has been vetted all the way to the U.S. Supreme Court and found that the all voters vote concept works and works very well for all voters, even if it doesn’t work well for the politicians,” Burhans said.

If approved by 60 percent or more of the voters on Nov. 3, the initiative would create a single primary election open to all voters, including those registered as having no political preference, with the top two vote getters proceeding to the general election.

Theoretically, that could be two Republicans or two Democrats. It would apply in races for governor, Cabinet, and the Legislature. Nearly 3.7 million voters aren’t affiliated with any party.

During a Zoom news conference Tuesday, House Speaker-Designate Chris Sprowles and Senate Democrat Janet Cruz argued that, when it cleared the amendment for the ballot in March, the court lacked access to subsequent studies purporting to demonstrate that the measure would sharply reduce Black representation in the Legislature.

“This could do irreparable damage to our political process. This is the political equivalent to a battle royale. Nobody understands who’s going to be left out. Nobody understands the damage that’s going to be done to the process and who’s going to be disenfranchised. Which it why it shouldn’t go into the Constitution,” Sprowls, a Palm Harbor Republican, said of the initiative.

Cruz, of Tampa, feared the measure would encourage underhanded electoral game-playing including vote-splitting and usher in “a real system of strategic kind of manipulation instead of good old elections. That’s what I worry about the most.” Better, she said, to adopt open primaries, in which unaffiliated voters could request either a Democratic or Republican ballot.

Even though the election is already underway, “it’s never too late to do the right thing here,” Cruz said.

Anne Corcoran of the Tampa office of Nelson Mullins Broad and Cassel, one of the lawyers pursuing the petition, acknowledged the court has set “a high bar” against this sort of challenge, “but I think this is exactly the kind of case it was designed for.”

The initiative is the brainchild of Miguel “Mike” Fernandez, a billionaire former GOP fundraiser who quit the party because of Donald Trump. He sank nearly $6.8 million from his own pocket as well as family and trust accounts into the campaign.

The named defendants are Secretary of State Laurel Lee and the Elections Canvassing Commission.

The research at issue was conducted by political analyst Matthew Isbell and Sean Shaw, a former Democratic House member who was his party’s nominee for state attorney general in 2018. In separate studies, they purported to document that the initiative would dilute the Black vote in minority districts and block Black candidates from the Legislature.

According to Isbell, the petition says, the “consequence of this plan is not that NPA [non-party affiliated] voters will have a say, it is that a flood of white GOP voters in safe Democratic districts will ‘bleach’ seats and seriously erode the voting power of African-Americans.”

Both studies were completed in July, the petition says, but gained wide attention only after the Legislative Black Caucus spread the news in a news conference in September — months after the Supreme Court cleared the measure for the ballot.

Named plaintiff Glenton Gilzean, CEO of the Central Florida Urban League, lives in House District 45 and Senate District 11, which the research suggests could lose Black representation under the amendment.

California, Washington, Louisiana, and Nebraska use the top-two system but the petition argues that they “differ from Florida in that voter registration strongly favors one party in those states.” In Florida, the parties enjoy rough parity with another third (amounting to nearly 3.6 million voters) registered as non-party-affiliated.

In clearing proposed amendments to go to the voters, the court considers whether the ballot language seems likely to confuse voters and whether an amendment would make more than one change. Such “logrolling” could force voters to accept changes anathema to them in exchange for ones they approve of.

The petition argues that, in light of the new information, the initiative fails the confusion and single-subject tests. Moreover, it would conflict with other constitutional provisions banning discrimination on account of race, religion, national origin, or physical disability; providing for fair legislative districts; and protecting majority-minority districts, the petition asserts.

The court has allowed post-approval challenges like the one filed Tuesday on rare occasions — the complaint cites a precedent from 1992 — but only in the face of “vital” issues not argued during the original proceeding.

“This case has a ‘perfect storm’ of facts — rarely occurring but resulting in a critical scenario,” the petition argues.

It asks the court “to direct the secretary of state to perform ministerial duties to ensure the ballots for proposed Amendment 3 are not canvassed and/or reported to her office or, in the alternative, to direct the Elections Canvassing Commission not to certify the election results, or any other such relief as the court deems proper, including deeming the votes void.”

Correction: The original version of this story misstated the date of the Supreme Court precedent mentioned.

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Michael Moline
Michael Moline

Michael Moline has covered politics and the legal system for more than 30 years. He is a former managing editor of the San Francisco Daily Journal and former assistant managing editor of The National Law Journal.