Fla. Primary Ballot Initiative Challenged For Black Voter Impact

Law360 (October 13, 2020, 9:26 PM EDT) -- A proposed constitutional amendment on Florida's Nov. 3 ballot that would revamp the structure of the state's primary elections was hit with a legal challenge Tuesday based on recently released analyses that project it would diminish the impact of Black voters.

In a petition filed with the Florida Supreme Court, Glenton Gilzean Jr., an Orange County resident and CEO of the Central Florida Urban League, urged the justices to order Florida Secretary of State Laurel M. Lee to not to certify the votes on so-called Amendment 3, which would switch the state from closed party primaries for statewide races to open primaries in which all registered voters would vote on all of the candidates, with the two highest vote-getters advancing to the general election.

"Proposed Amendment 3, 'All Voters Vote' as it is colloquially referred to, holds itself out to be an amendment which allows all voters to vote in each primary. … [T]he effect that this proposed amendment has on the minority vote is the opposite. All the while, there is not even a passing reference to the effect on the minority population in the summary," Gilzean said in his petition.

The state's highest court issued an advisory opinion in March, finding that the ballot initiative meets the technical requirements to appear on the general election ballot. But Gilzean contends that two studies released since then have raised "vital issues" that warrant the court revisiting the findings.

"Neither this court nor the electorate of Florida was told what the impact of the proposed initiative would be. That is the essence of misleading," the petition said. "The proposed amendment would enshrine structural discrimination in our state's supreme legal document, directly contradicting other sections of the constitution."

Gilzean bases his petition on studies conducted by Matthew Isbell, an election data consultant, and former state Rep. Sean Shaw. While the two used different methodologies, both concluded from reviews of voter data that in more than half of the districts that currently have a majority of Black voters in the Democratic primary, their electoral advantage would be wiped out by the proposed "top-two" primary system.

The "consequence of this plan is not that NPA [non-party affiliated] voters will have a say, it is that a flood of white GOP voters in safe Democratic districts will 'bleach' seats and seriously erode the voting power of African-Americans," Gilzean quoted from Isbell's conclusions.

Gilzean argues that such an impact would contradict existing constitutional provisions governing the legislative redistricting process requiring equal protection based on race.

By not informing the public of this significant effect of the proposed amendment, the ballot initiative also fails to satisfy requirements that its title and summary be clear and not misleading, he said.

He also contends that it violates a single-subject requirement because its impact on minority voters represents a second effect beyond eliminating closed primaries.

The results of the two studies were released in July, but Gilzean says they were not widely known until the Florida Legislative Black Caucus drew attention to them at a Sept. 8 press conference. He has acknowledged the last-minute nature of his request — with ballots already printed and votes being cast — but he argues the case presents the "perfect storm" of facts that warrant extraordinary action from the court.

"The Florida Supreme Court has the power to strike unconstitutional amendments which will diminish the right of minorities to elect their preferred candidates — which is exactly what these studies have found this amendment will do," Gilzean said in a statement. "It is an uphill fight, but it's an important fight. Every scientific study has demonstrated that this amendment would adversely affect minorities by weakening their ability to elect the candidates of their choosing."

Gilzean further suggests that the amendment, which has the backing of billionaire Miguel "Mike" Fernandez, was rushed to the ballot without sufficient research as a result of its sponsor, All Voters Vote Inc., using an infusion of $6 million from Fernandez and hiring a company to provide professional petition-gathering services.

The amendment has drawn opposition from both Democrats and Republicans, and a press release announcing Gilzean's petition included comments from lawmakers from both parties.

"The 'All Voters Vote' Amendment has opposition from those of us on both sides of the aisle," State Senator Janet Cruz, D-Tampa, said. "This is not a Democrat or Republican issue; this is a voter issue. If passed, this amendment will hurt minority representation and lead to more mudslinging and political chaos, all with the ultimate winner being the one who was not chosen by the true majority of that district. Simply put, this amendment is a real threat to true representative democracy."

Florida House Speaker-Designate Chris Sprowls, R-Palm Harbor, likened the proposal to a roulette wheel with no one sure what elections would look like under the amendment.

"Entire constituencies — geographic, ethnic, racial and religious — could find themselves left behind. These new rules would encourage manipulation, incentivize dirty tricks and lead to increased uncertainty," Sprowls said. "Rather than enhancing democracy, this amendment could shut out entire viewpoints from the electoral system. The last thing Florida needs is an election system that causes greater confusion and does more harm than good."

Florida's Department of State did not immediately respond to requests for comment Tuesday.

Gilzean is represented by Todd K. Norman, Benjamin Burleson and Anne Corcoran of Nelson Mullins Broad and Cassel.

Counsel information for the state was not immediately available.

The case is Gilzean v. Lee, case number SC20-1480, in the Supreme Court of Florida.

--Editing by Steven Edelstone.

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