Fla. High Court Rejects Challenge To Primary Ballot Initiative

Law360 (October 28, 2020, 5:13 PM EDT) -- The Florida Supreme Court on Wednesday dismissed a legal challenge to a proposed constitutional amendment on the Nov. 3 ballot that would revamp the state's primary elections, saying the petitioner failed to prove he was entitled to an order blocking the counting of votes on the initiative.

Glenton Gilzean Jr., an Orange County resident and CEO of the Central Florida Urban League, urged the justices in his Oct. 13 petition to order Florida Secretary of State Laurel M. Lee not to certify the votes on so-called Amendment 3, claiming it was misleading based on two recent analyses that projected it would diminish the impact of Black voters.

But in an unsigned one-page order, the state's highest court found unanimously that Gilzean failed to prove he was entitled to the requested writ of mandamus, which requires a showing that the respondent has an "indisputable legal duty to perform the requested action" and that he had no other adequate remedy available.

The court also stated that no motion for rehearing, clarification or reinstatement would be allowed.

Glenn Burhans, chair of the measure's sponsor, All Voters Vote Inc., which intervened in the suit to defend its proposal, slammed the case as "political theater" from the two major parties, which both oppose the proposed amendment.

"The secretary of state, governor and cabinet argued that the lawsuit was unjustified and based upon reports 'that bear no indicia of reliability' — in other words, a sham," Burhans said. "We are glad to see that the Florida Supreme Court unanimously agreed and rejected the claim out of hand, while also taking the extraordinary step to preemptively rule that no rehearing, clarification or reinstatement will be entertained by the court. It is time for the voters to decide whether to let all voters vote."

Amendment 3 proposes switching 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.

The Florida Supreme 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 contended that two studies released since then have raised "vital issues" that warranted 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 based his petition on studies released in July 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.

On Wednesday, one of Gilzean's attorneys said the Supreme Court's decision does not foreclose a post-election challenge to the amendment, in the event that it becomes law.

"Mr. Gilzean will always fight to ensure that Black voices have a place in Florida government, through every available legal avenue. His commitment to that goal remains steadfast," Anne Corcoran of Nelson Mullins Broad & Cassel said. "The Florida Supreme Court did not rule on the issue that Amendment 3 would significantly dilute the Black vote, a fact that was established by no less than two published reports — and that was not denied in the brief by the sponsor of the amendment."

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

The measure drew support from 58% of likely voters in a University of North Florida poll conducted in early October, below the 60% threshold needed to pass.

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

The state is represented by Bradley R. McVay, Ashley E. Davis and Colleen O'Brien of the Florida Department of State, and Mohammad O. Jazil, Edward M. Wenger and Michael R. Beato of Hopping Green & Sams PA.

All Voters Vote is represented by Glenn Burhans Jr., Eugene E. Stearns and Abigail G. Corbett of Stearns Weaver Miller Weissler Alhadeff & Sitterson PA.

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

--Editing by Jack Karp.

For a reprint of this article, please contact reprints@law360.com.

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