Amendment 3 sponsor criticizes Supreme Court challenge as ‘political stunt;’ state asks justices not to interfere

By: - October 21, 2020 2:00 pm

The Florida Supreme Court. Photo by Colin Hackley.

Attorneys for Secretary of State Laurel Lee have asked the Florida Supreme Court to dismiss a challenge to proposed Amendment 3 — the measure that could overturn the state’s primary elections process if voters approve.

The request comes within two weeks of the general election on Nov. 3, with Amendment 3 already on the ballot for voters to decide. Some voters are already filling in their ballots.

The challenge being considered at the Supreme Court could block enforcement of the Amendment, if at least 60 percent of voters approve the measure in the general election.

Attorneys for All Voters Vote Inc., which sponsored the proposed amendment, have filed their own arguments, reiterates the state’s position regarding a petition asking the court to block enforcement of the measure.

“The petition invites the most suspect form of judicial activism: stopping votes from being counted while ballots are still being cast,” the sponsoring committee argues in a brief filed late Tuesday.

“The petition, backed by the same two political parties who previously tried, and failed, to keep Amendment 3 off the ballot, is a thinly cloaked political stunt” and an abuse of the court’s limited authority to intervene only in ‘truly extraordinary cases,’” the committee writes.

The petition was filed on Oct. 13 on behalf of Glenton Gilzean, CEO of the Central Florida Urban League, with backing from state legislative leaders. It cited evidence that the proposed Amendment 3 would disenfranchise minority voters, particularly African Americans, and asked the justices to bar election officials from certifying the vote and therefore block it from taking effect.

The state’s brief, also filed Tuesday, notes that election officials already are trying to cope with historic levels of voting by mail during a pandemic and don’t need any more distractions. And it denounces the petition as based on speculative data that the challengers raised far too late — in fact, as mail-in voting was already well underway. (Additionally, early voting began in some counties on Monday.)

“Mr. Gilzean’s petition is tardy, procedurally deficient, and, if granted, would cause nothing but electoral confusion in perhaps the most important state this election cycle,” it says.

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. The system is sometimes called a “top two” or “jungle” primary.

That could be two Republicans or two Democrats. The system would apply in races for governor, Cabinet, and the Legislature. Nearly 3.7 million voters aren’t affiliated with any party; the sponsoring committee argues that including them could counteract partisan extremism.

The court cleared the proposed amendment for the Nov. 3 ballot in March, over vociferous objections from the Republican Party of Florida and Florida Democratic Party, which want to keep control over the primary process.

Janet Cruz
Janet Cruz

During a Zoom news conference held the day the petition landed with the court, House Speaker-designate Chris Sprowls, a Republican, and Sen. Janet Cruz, a Democrat, cited two studies that purported to find that introducing white Republicans and nonaffiliated voters into the pool of primary voters in majority-minority districts could effectively bar Black candidates from office. The data weren’t fully understood in time to present to the court in advance of the March ruling, they argued.

These challengers seek a writ of mandamus — an order directing some government official to perform (or not) some official duty. These writs are rarely granted — as the state argues in its brief, only when a petitioner suffers an injury to “a clear legal right;” when the official holds “an indisputable legal duty” he or she hasn’t fulfilled; and when there is “no other adequate remedy available.”

“For decades, this court has maintained that a writ of mandamus ‘will not be allowed in cases of ‘doubtful right,’ but a ‘doubtful right’ is all Mr. Gilzean can hope to muster,” the state argued.

Both answer briefs cast doubt on the results of the studies at issue.

‘Deeply flawed’

“The conclusions that petitioner attempts to draw from those reports are deeply flawed in that they ignore, among other things, the impact of adding over 3.7 million [unaffiliated] voters to the primary process. An ‘analysis’ of election results that ignores 26 percent of the electorate is neither credible nor reliable, and cannot serve as the basis to deny millions of Florida voters the opportunity to vote on Amendment 3,” the sponsor’s brief argues.

And both argue that the challengers waited far too long to raise the matter.

“Mr. Gilzean waited until after Floridians began to cast their ballots before he filed his self-proclaimed emergency petition for a writ of mandamus. He now asks this court to negate votes that Floridians rightly believed were validly cast,” the state writes.

“The prejudice to the state, in turn, is self-evident. The 2020 general election is underway with voting concluding — not beginning — in early November. Across the state, elections officials have enlisted platoons of individuals to ensure that, during a year presenting unique challenges, Floridians have the opportunity to cast their ballots safely and effectively. Millions of ballots have been cast and canvassed. The stakes are at their apex, and the room for error is at its nadir,” the pleading says.

Moreover, the sponsor’s brief argues, the new primary system wouldn’t take effect until 2024 — after the Legislature redraws districts in light of the 2020 census.

As for the petition’s contention that the amendment would conflict with other constitutional provisions, including protections for minorities, the sponsor’s brief is dismissive.

“Should Amendment 3 be adopted, it will be incumbent upon the Florida Legislature to apportion in a manner that allows all registered voters to vote in the primaries while ensuring that no district be drawn in a manner that would deny or abridge the equal opportunity of racial or language minorities the ability to participate in the political process or diminish their ability to elect candidates of their choice,” it says.

Finally, the brief argues that the top-two system is already used in more than 400 municipal and dozens of county elections.

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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. He began his career covering the Florida Capitol for United Press International. More recently, he wrote for Florida Politics.