Does a national political party have to count every vote in choosing its nominee for president? Or can it enforce its rules in a way that leaves some voters – or even an entire state – out of the process? Those questions are at the heart of a lawsuit unfolding in Florida that is the latest volley between states and the national parties over the scrambled primary calendar.
The lawsuit, filed this month by Florida's leaders in Congress, accuses the Democratic National Committee and state officials with the unconstitutional and "wholesale disenfranchisement" of Florida's 4 million Democratic voters.
The plaintiffs want the US District Court in Tallahassee, Fla., to undo the DNC's sanctions against Florida for its early primary date. Those sanctions stripped Florida of all its delegates to the 2008 Democratic convention, where the national delegate count determines the party's White House nominee.
Without delegates, the lawsuit alleges, the results of Florida's Jan. 29 primary will be moot, denying a voice to all of the state's Democratic voters – and particularly its blacks, who disproportionately vote Democratic.
Experts in election law say the lawsuit faces significant hurdles, mainly because courts have given political parties wide leeway to set rules for primaries. In landmark cases in Wisconsin in 1981 and Illinois in 1975, the US Supreme Court effectively said that party rules trump state law in the selection of nominees.
Florida lawsuit claims
Still, precedent is relatively scarce. And some experts say a few of the Florida suit's claims – particularly those alleging racial bias under the Voting Rights Act – may be novel enough to draw a judge's eye. The suit also takes an unusual tack in naming as defendants not just the national party but state government, which courts would be likely to hold to a higher standard than a party alone, experts say.
The lawsuit says the Republican-led legislature and GOP Gov. Charlie Crist moved the primary from its traditional March date to January after the DNC had announced the penalties for setting primaries before Feb. 5, a window reserved under Democratic rules for Iowa, New Hampshire, Nevada, and South Carolina.
"A suit against the state is on stronger ground than a suit against the party," says Guy-Uriel Charles, an election law specialist and co-dean of the University of Minnesota Law School. "Because one might say that the state moved the primary up specifically to deprive these voters of their rights."
That is a claim Florida officials flatly deny. The legislature, with the governor's support, did vote this spring to move the primaries – Democratic and Republican – to Jan. 29. But after Democratic amendments to set a Feb. 5 primary failed, nearly every Democratic lawmaker joined the Republican majority in favor of the Jan. 29 date.
Several Democrats invoked the same reason as Republicans: to give the nation's fourth most populous state a bigger role in the nominating process.
"Moving the primary up earlier puts Florida center stage," Anthony DeLuise, a spokesman for the governor, said in a phone interview. He said that Governor Crist has declared his support for the lawsuit, which was filed by Sen. Bill Nelson and Rep. Alcee Hastings, Democrats of Florida, in their capacity as delegates to the convention, and by Janet Taylor, an African-American county commissioner and possible delegate.
"It's the national Democratic Party" – not Florida – "that is unfairly punishing Democratic voters," Mr. DeLuise said.
A DNC spokeswoman, Karen Finney, said the Democratic Party was on firm ground to disregard contests that run afoul of party rules. "The DNC has the absolute legal right to treat the state-run primary as a mere beauty contest," she said in an e-mail interview.
Earlier this month, a federal judge in Tampa seemed to second that view in throwing out a somewhat similar lawsuit over the DNC sanctions. "The Supreme Court has consistently recognized that national political parties have a constitutionally protected right to manage and conduct their own internal affairs, including the enforcement of delegate selection rules and the decision as to which state delegates it will recognize," Judge Richard Lazzara wrote.
Citing the First Amendment right to free association, courts tend to treat political parties as private bodies, much as they might a parade organization, which is free to decide who may march.
Kendall Coffey, a Miami lawyer for the Florida plaintiffs, sought in an interview to distinguish his case from such rulings. In those cases, he said, parties had compelling reasons to exclude some voters. In the 1981 Wisconsin case, for instance, the Supreme Court ruled that the DNC could ignore that primary because Republicans and other non-Democrats were permitted to participate, a violation of Democratic Party rules.
Limiting a party primary to members of that party is rational, he said. But in the Florida case, Mr. Coffey asserts, the DNC's reasons – to protect the traditional roles of a few early-voting states – are too weak to justify what the lawsuit calls "disenfranchisement on a massive scale" of that party's own members.
"It's one thing if you have a reasonable basis for making minor adjustments based on the goals of the Democratic Party," he said. "But it's completely different to say all 4 million-plus votes count for zero."
Because party primaries are often run and financed by government, courts have set some limits. In a series of rulings from the 1920s to 1950s known as the "white primary cases," for instance, the Supreme Court banned racial restrictions on who could vote.
Lawsuit's potential impact
If even parts of the Florida suit are successful, experts say, it could have far-reaching implications for the balance of power between states and the parties over the primary calendar. "Depending on how any injunction is crafted, parties could potentially lose some of their ability to regulate the primary process," said Michael Kang, an election law specialist at the Emory University School of Law.
The defendants – the DNC, its chairman Howard Dean, and Florida Secretary of State Kurt Browning – have 20 days to file an answer to the lawsuit. It is unclear when a judge might rule.
The dispute has particular resonance in Florida, the site of the disputed 2000 presidential election, decided by the Supreme Court in favor of George W. Bush, the Republican, over Al Gore, the Democrat. The lawsuit calls the DNC sanctions a "monumental irony": "In the annals of modern politics, no national party has inflicted so devastating and sweeping a 'geographic discrimination' " against its own members.
The strong language suggests to some election-law specialists that the suit is as much a political exercise as a legal one.
"Fundamentally, lawsuits like this are about shaming the national political party into counting the votes," said Nathaniel Persily, a Columbia University law professor who reviewed an early draft of the lawsuit but is not involved with the case. "It seems inconceivable to me that the Democratic convention will lock its doors and leave the Florida delegation outside."