TALLAHASSEE, Fla. - If the winner of a Democratic or Republican primary in Florida won't face opposition in the general election, then that primary is open to all voters without regard to party registration under a state constitutional amendment passed overwhelmingly in 1998.
The idea is that everyone should get a chance to vote for - or against - the eventual winner.
It didn't take politicians long, though, to figure out a way to get around the open primary requirement: find a supporter, friend or relative to run as a write-in candidate. That trick was challenged this year in court by critics who said that it effectively disenfranchises independents and members of other parties.
A federal judge handed them a setback, though, on Wednesday, when he dismissed a lawsuit with the Aug. 14 primary less than three weeks away, saying it should have been filed in state court. Measures aimed at closing the loophole also have failed to gain traction in the Republican-led Legislature.
"Token write-in candidates have proliferated, serving no role except to close party primaries and thereby deprive citizens of their constitutional right to vote," the suit alleged.
The open primary provision was part of a broader election reform measure. The problem that backers tried to correct 14 years ago was that in some counties or districts where one party has an overwhelmingly majority, the minority party might not even field a candidate in the general election. That meant that only voters from the majority party were deciding their area's next legislator, state attorney or other officeholder.
The backers thought they had solved the problem by opening the primary in such circumstances to all voters. But some candidates didn't want an open primary, figuring that hurt their chances, so they started registering someone as an official write-in candidate - a process that costs no money - and arguing that meant they had a general election opponent. The state Division of Elections, then under Republican Secretary of State Katherine Harris, agreed, saying that was enough to close a primary. That's led to an explosion of write-ins - and the latest court challenge.
Two Miami-Dade County voters, Vincent Mazilli and Armando Lacasa, asked a federal judge to open the local Democratic primary for state attorney. The race pits longtime incumbent Katherine Fernandez Rundle against defense lawyer and former prosecutor Rod Vereen.
No Republican is on the November ballot, but the winner will face opposition from two little-known write-in candidates so the primary is open only to Miami-Dade's 525,890 Democratic voters. The lawsuit claimed nearly 700,000 Republicans, independents and third-party voters are being disenfranchised.
"This outcome will deprive these citizens of their basic constitutional freedom, and it will undermine the clear choice of the people to grant all citizens a meaningful right to participate in choosing their leaders," the lawsuit said.
The voters' legal team includes Roberto "Bobby" Martinez, a former U.S. attorney and current member of the State Board of Education originally appointed by Republican then-Gov. Jeb Bush. Rundle has won broad support from Republicans in the past and figures to have a tougher time defeating Vereen, who is African-American, if the election is restricted to Democrats. Rundle has accused Vereen of being behind the write-in candidates. He denies it.
"It's ironic that Republicans are challenging a law that the Republicans, who have been in power for 16 years, have been unwilling to change," said state Sen. Paul Dockery. The Lakeland Republican has sponsored bipartisan legislation to eliminate the write-in loophole but without success.
The open primary amendment was placed on the 1998 ballot by the Florida Constitution Revision Commission and voters approved it with a 64 percent majority. Rundle was a member of the commission and voted against the proposal that narrowly passed, 15-14.
Mazzilli, an independent, and Lacasa, a Republican, wanted U.S. District Judge William Zloch, to open the primary to all Miami-Dade voters or put both Democrats on the general election ballot with the usual blank space for write-in votes. The judge, though, ruled he lacked jurisdiction because it's a state issue.
The lawsuit noted that a write-in candidate has never won an election in Florida - most get a handful of votes - and argues that it's "absurd" to think the commission and voters would have wanted the amendment to be so easily circumvented.
"Why would they have bothered?" the plaintiffs' lawyers wrote. "And it is equally absurd to think that any voter viewing a ballot with a candidate name and a blank space would think that candidate `opposed.'"
They also contended the policy violates the plaintiffs' right to vote under the U.S. Constitution.
Lawyers for Secretary of State Ken Detzner, an appointee of Republican Gov. Rick Scott, and Miami-Dade Supervisor of Elections Penelope Townsley disputed that constitutional argument and contended write-in candidates must be considered opposition because state law predating the amendment says they are "duly-qualified."
Write-ins must register with the division to become qualified but they don't have to pay filing fees or submit petitions as regular candidates must. Only votes for qualified candidates are counted.
"The line provided for duly-qualified write-in candidates is provided for the purpose of writing in a candidate's name, not writing in the name of `Santa Claus' or `Mickey Mouse,'" the state's lawyers wrote in their brief.
The state also noted one of the write-in candidates in the state attorney's race is a registered Republican and the other a Democrat. The brief contended that opening the primary would be contrary to the public interest because it would disrupt the orderly conduct of an election that's already begun as absentee ballots have been mailed.
Former Florida Supreme Court Justice Gerald Kogan, who chaired the committee of the revision commission that drafted the amendment, said in 2000 that he couldn't recall the write-in issue even being discussed.
"This was not a big deal at that time," Kogan said then.
Since the state's policy went into effect, 131 general election races have included write-in candidates statewide from 2000 through 2010, according to the lawsuit. That's more than triple the number compared to the prior 22 years in about half the time. In Miami-Dade, races that had write-in candidates jumped from three to 39.
Clay Roberts, who issued the advisory opinion when he was the division's director in 2000, then told The Associated Press that he "was a little taken aback" when a write-in candidate acknowledged to him that she was running only to block an open primary.
"That was shameful," Roberts said at the time, but the division has stuck with its policy.
The year before the opinion was issued the Florida Senate passed a bill that specifically said write-ins were not to be considered opposition. The House, though, passed a version saying just the opposite. They were never reconciled and no law was passed.
Subsequently, several proposed constitutional amendments were filed in the House and Senate to clarify that write-ins would not count as opposition, but none ever made it to a floor vote.
The last was filed in 2008 by Dockery, who has often bucked her own party leaders. She said they "made no bones about it that they like the write-in loophole."
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