Aug. 26 is primary election day, but this event may or may not take place on time, depending on a ruling, or rulings, yet to come from Circuit Judge Terry P. Lewis of Leon County. First, a little background.
On July 10, Lewis ruled as unconstitutional two of Florida’s 27 congressional districts drawn and passed by the Republican-led Legislature. The judge held the process leading to the final product was a “mockery” of the Fair Districts amendments passed by the people in 2010.
Unexpectedly, the GOP decided to forego a likely fruitless appeal. Within the 41-page decision from Lewis was a judicial stew of history, analysis and scolding.
July 10 was far from the end of the saga. Lewis judged the winners and the losers, but yet to be prescribed is the remedy.
The winning side, the League of Women Voters and its counsel, wants the districts redrawn quickly and elections conducted this year based upon those new districts. Legislative leaders, while accepting Lewis’ ruling, feel it impractical to accomplish everything in time for the primary.
David King, the attorney representing the plaintiffs makes another reasonable argument by saying one election already took place in 2012 with the wrong districts. He argues we should not have another.
While it should be said the League’s desire for rapid justice is understandable, some daunting logistics remain. At a hearing called by Lewis last week, the representative of 66 of the 67 county elections supervisors indicated absentee ballots have already been printed and some already returned. What about military ballots and early voting?
Lewis has much to ponder. This week he will conduct a longer hearing. Very soon after that, he will make his ruling.
Here are some facts to keep in mind. Florida law requires mailing absentee ballots between 35 and 28 days before a primary. In this case, that window is July 21 to July 28.
The only hope for complying with this part of the law is moving the primary date. To be further argued is whether a judge can unilaterally move that date.
Other smaller things are embedded into election law, such as correct information on a voter registration card. Would affected supervisors be forced to quickly reprint those cards?
An option is a special election. What if Lewis orders the districts redrawn by a date certain in 2015 and requires special elections?
The law allows special elections for Congress only in the event of a vacancy. Since there are no incumbents in new districts, could this not be a possibility?
Don’t we have fun in Florida at election time?
Last week I had a good discussion with the former CEO of a public-sector lobby organization. He felt getting it right this year is the proper course. If inconvenience surrounds absentee ballots, then that’s the price of democracy, he feels. He is sympathetic to the League’s view that one election under invalid districts is enough.
I disagree and hope Lewis will keep the current schedule and order the districts redrawn through a transparent process free from time pressures. I would further hope he looks into whether special elections are legal and, if so, solve the problem that way.
However he rules, we can be confident the law, not emotion or what is “fair,” will guide his rulings. There is history to back this up.
Many might remember that in November 2000 Lewis was assigned the first significant case in what turned out to be the Bush vs. Gore recount. He was asked to rule on a demand from Volusia County that would in effect force Secretary of State Katherine Harris to accept vote counts reported after the statutory deadline.
He ruled that Harris could enforce the clearly written statute. “I cannot enjoin the Secretary to make a particular decision, nor can I rewrite the statute,” he wrote.
Lewis made another similar ruling before the Florida Supreme Court quickly swung into action and reversed him. Their rewriting of Florida election statutes was later deemed a violation of the U.S. Constitution by seven justices of the United States Supreme Court. Terry Lewis was on solid ground.
I predict he will again use the law and listen to reality provided by elections supervisors by ordering districts redrawn in 2015. Special elections, while costly, would be eminently more workable than a late 2014 scramble. We will all know soon.
Welcome back to the spotlight, Your Honor.
Bob Sparks is a business and political consultant based in Tallahassee. Column courtesy of Context Florida.