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Arrogance Cost Florida Chance To Influence Election

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By TALBOT D'ALEMBERTE

Published: March 2, 2008

Updated: 03/01/2008 01:33 am

As we approach the end of this extended season of political activity, we hear a great deal about the Florida and Michigan delegates to the Democratic National Convention, including arguments that the Democratic Party should be punished for its unwillingness to seat delegates from early elections.

I recently heard a respected Democrat, a state senator, tell an audience that if Florida delegates are not seated, he was not sure he would support the Democratic nominee.

This argument has a superficial attraction even when made by the very people who got us in this mess, that is, the leadership of the Florida party including its elected officials.

It may be useful to recount the history of these events in Florida that are summarized in a recent federal court order entered by Judge Robert Hinkle:

•In 2004, the national Democratic Party created a study commission to look at the issue of scheduling of primaries and caucuses, and that commission recommended that the earliest date remain the first Tuesday in February, with exceptions for Iowa and New Hampshire and perhaps for one or two additional primary states and one or two additional caucus states.

•In August 2006, the DNC adopted rules relating to the schedule much along the lines proposed by the commission. No one from Florida spoke against the proposal nor gave any other indication of dissent though representatives from New Hampshire voiced their opposition. These rules spelled out the sanctions for states that did not adhere to the rules. (The rules did allow the state to avoid sanctions if it could demonstrate that the state party and elected officials in good faith took all steps to bring the state into compliance.)

•Even before the Republican-led Legislature voted to change the date of the Florida primary, the DNC, anticipating that the earlier date would be adopted, offered a way out of the dilemma. There was discussion about a vote-by-mail process and a party-run caucus system. The DNC even offered to pay the entire cost of the caucus system, an offer without precedent. The Florida party pushed ahead.

• In March and April 2007, in the face of warnings from the DNC, the Florida Legislature voted overwhelmingly to move the primary date to Jan. 29, and the Democrats supported this legislation.

The Florida Democratic Party and elected Democrats did little to achieve compliance with the national rules, although Rep. Dan Gelber, the House Democratic minority leader, did attempt to amend the legislation setting up the new primary date to provide a later date, and a similar effort was made in the Senate.

The bill being considered at the time called for a paper ballot, an important issue to the Democrats and, when the amendment failed, the bill passed with support from the Democrats in both houses.

In line with the party rules and the notice given to Florida Democrats, the party's Rules Committee met in August 2007 and voted to take away Florida delegates to the convention.

We now find ourselves in a very odd situation. The party leadership and many of the elected Democrats took the risk of violating party rules, many promoting the change. They ignored the notice from the DNC and the substantial legal precedent that gives the party control over its own rules and supports its authority to set the terms of its delegate selection. Surely the party leaders and lawyers know of the legal rule that respects party autonomy and avoids the chaos that would exist if the primary and caucus dates were simply left to every state, a system that the U.S. Supreme Court has said would produce "an obviously intolerable result."

In an attempt to trump the rules of the national party, leaders in Florida brought a federal court action against Howard Dean and others, charging a violation of equal protection, due process and the federal Voting Rights Act.

In his order dismissing that case, Federal District Judge Robert Hinkle observed:

"The Constitution makes no mention of political parties, but they have a unique and protected stature in our constitutional system. The First Amendment right to freedom of association extends to parties and protects their internal affairs from undue government interference. Thus a political party ordinarily may decide for itself how delegates to its national convention will be chosen, and the party ordinarily need not comply with state laws purporting to restrict its options. The United States Supreme Court has repeatedly so held."

Today, the strange situation is that the party leadership, now bemoaning the loss of delegates and loss of the voters' right to participate, are the very people who behaved in a cavalier way to bring us to this situation.

The Florida Democratic Party leadership has gotten us into this mess, and some are even threatening to enlist the courts in some kind of epic battle, knowing full well that the courts offer no basis for the relief they are seeking.

Moreover, their announced motivation - to increase Florida's influence - would have been achieved if they had left the issue alone or if they had accepted the DNC offer to fund caucuses. Indeed, if Florida had a primary or caucus some time now, in early March, we might actually have had a real impact on this election.

Wouldn't that have been fun?

Talbot D'Alemberte is president emeritus of Florida State University and former president of the American Bar Association.

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