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August 16, 2018

Tallahassee Trend

Florida's Supreme Court has become an elections law hot spot

Some believe a state Supreme Court ruling oversteps boundaries.

Jason Garcia | 1/26/2017

In February 2016, James Barry Wright, the former police commissioner in Opa- Locka, opened a checking account with Wells Fargo bank and announced that he was running for mayor of Miami Gardens. Four months later, Wright wrote a $620 check to the city clerk to get his name on the ballot.

Fifteen days later — two weeks after the qualifying period had ended — an employee in the Miami Gardens finance department notified the city clerk’s office that Wells Fargo had returned Wright’s check. It was stamped “UNABLE TO LOCATE ACCOUNT.” The clerk’s office informed Wright, who tried to repay the qualifying fee with a cashier’s check. The city wouldn’t accept it. Wright was disqualified from the election.

Wright had more than enough money in his account to cover the check — Wells Fargo simply made an error in returning the check. But the Miami Gardens clerk’s office said it was forced to disqualify Wright because of a 5-year-old state law that said a candidate whose check was returned for any reason had only until the end of the qualifying period to repay the fee — an impossibility in Wright’s case.

Florida used to give candidates like Wright 48 hours to resolve such problems. But the Legislature had eliminated that option in 2011 as part of a rewrite of the state’s elections laws that imposed stricter requirements on everything from early voting to registration drives.

Wright sued, arguing that the city had misinterpreted the statute. The trial court in Miami-Dade County ruled that the law did, in fact, compel the city to remove Wright from the mayor’s race. And the 3rd District Court of Appeal then upheld the decision, though the appellate judges made sure to note “our tremendous distaste for the result.”

But the Florida Supreme Court decided to step in. On Sept. 15, the state’s high court ruled that the law used to disqualify Wright was unconstitutional and ordered the city of Miami Gardens to redo its mayoral election.

The ruling had little immediate impact. Wright lost the subsequent special election to the incumbent mayor by a wide margin. But some appellate attorneys say the decision is likely to reverberate far beyond one south Florida city.

What made the ruling important was not what the Supreme Court decided but its rationale: The court declared the law that had disqualified Wright unconstitutional even though neither Wright nor his attorneys had actually argued that the law was unconstitutional.

“It is another example of what has been a troubling trend of the Florida Supreme Court reaching out to take on issues that are not squarely before it,” says Jesse Panuccio, a former general counsel under Gov. Rick Scott who is now a partner in Foley & Lardner’s Miami office.

What’s more, some appellate attorneys believe the case is a sign that the court, which has clashed repeatedly with the Legislature in recent years, is about to become even more active in the area of election laws and voting rights. “This case basically now stands for the proposition that the Supreme Court, without any authority other than ‘all power is in the people,’ can decide what elections obligations are constitutional,” says one attorney who asked not to be identified.

Indeed, the court made it clear in its opinion that it was not just concerned about one specific law. “Unreasonable and unnecessary restrictions on the elective process are a threat to our republican form of government,” Justice James E.C. Perry wrote on behalf of the majority. “At their worst, they cloak tyranny in the garb of democracy.”

Perry, who turned 70 in 2014, was forced to retire from the Supreme Court in January, and Scott appointed C. Alan Lawson to replace him. But even though Perry is gone, four other justices who concurred with the opinion — not just the result but the legal reasoning behind it — remain on the seven-member court.

A number of potential election-law disputes are already on the horizon. Parts of the Legislature’s controversial 2011 election-reform package remain in effect and are subject to challenges, including provisions that gave local supervisors of elections the authority to close early voting sites on Sundays and to refuse to open early voting locations on college campuses. Some activist groups are weighing lawsuits over everything from automatic voter registration to the tactic of “prison gerrymandering” when drawing political boundaries.

“Florida as a whole has a more inclusive (election) process than many states. But the places where they’ve chosen restrictions seem to have a political purpose,” says Sen. Jeff Clemens, a Democrat from Lake Worth.

Already, a group has gathered enough signatures to trigger a Supreme Court review of a ballot measure that automatically restores voting rights to most felons after they had completed their sentences.

Meanwhile, another petition group, which has raised more than $200,000 so far, expects to hit the threshold that will require court review sometime this year. Their measure would require the state open primary elections to all voters. The proposed amendment is likely to be fought by Florida’s political parties.

Neither group has decided when it wants to put its amendment on the ballot. Both could benefit in 2018 if there is a backlash vote against President Trump, as the opposite party of the president tends to outperform in off-year elections. But they may choose to wait until 2020, when a presidential election will drive higher, and presumably more liberal, voter turnout.

Regardless, both groups want to get through the court review quickly to take advantage of what appears to be a friendly court — at least until three more justices come off the bench in early 2019.

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