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Class-Action Suit Filed Over Early Primary Election Date

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By CATHERINE DOLINSKI

cdolinski@tampatrib.com

Published: November 29, 2008

TALLAHASSEE - A Democratic activist is trying to turn his court challenge over Florida's early primary date into a class-action lawsuit on behalf of all Democratic and Republican voters in Florida.

"The plaintiffs in this case are suing not only to make sure they protect their own voting rights, but to make sure all Florida voters have the same right to he heard in selecting their candidates for president," said Roger Bernstein, attorney for Jon Ausman, a member of the national Democratic Committee from Tallahassee.

Ausman is suing the state over the Legislature's and Gov. Charlie Crist's decision in 2007 to move up the primary date to Jan. 29 - a decision that came close to costing Florida Democrats their seats at the convention this year. National Republicans similarly threatened not to seat one-half of Florida's GOP delegation. Ausman has argued that the parties' decisions to seat Florida in the end do not change the fact that the state forced a primary on both parties in violation of their rules for choosing their delegates.

In his amended complaint, filed on Nov. 24, Ausman declares that he is suing on behalf of all of both party's voters, and that the state violated their First Amendment rights to free assembly. Ausman objects in particular to the statute's wording, which compels rather than permits the parties to participate in the Jan. 29 primary.

Ausman, who is suing along with one GOP voter and four other Democrats, also argues that the state violated voters' 14th Amendment right to equal protection - in this case, protecting their votes in their process of nominating presidential candidates.

When the plaintiffs initially sued earlier this year, they focused on pushing back the primary date, based largely on the threats from both national parties not to seat convention delegates. The state argued this month that the parties' subsequent concessions made the court challenge "moot."

Now, the plaintiffs are expanding their case to establish that national party rules for primary elections take precedence over state mandates. If they win that argument, the primary date decision will revert to the parties.

"The broader focus now is to make sure this does not repeat itself," Bernstein said. "We need to identify the underlying Constitutional problem and address it."

It will be up to a federal judge to decide whether to grant the class-action status Ausman and the other plaintiffs are requesting. Because the number of plaintiffs in the case has no direct bearing on the relief they seek - in this case, government action rather than financial compensation - it may be easy to obtain class-action status.

The case is pending in federal court in Tallahassee.

Reporter Catherine Dolinski can be reached at (850) 222-8382.

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