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Democratic Activist Vows Appeal In Delegate Case

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The Associated Press

Published: February 2, 2009

ATLANTA - A frustrated Florida Democratic activist plans to appeal to the Supreme Court after a federal appeals panel dismissed his claim that the national party improperly stripped the state of its delegates to the national convention.

Victor DiMaio had asked the 11th Circuit Court of Appeals to rule that the Democratic National Committee disenfranchised Florida's voters by taking away the state's delegates last year when Florida Democrats defied the party by scheduling their presidential primary before Feb. 5.

A three-judge panel ruled Friday that the challenge no longer needs to be resolved, and that if the Democratic National Committee adopts a similar rule in 2012, critics could file another lawsuit then.

DiMaio, though, said he hopes the nation's top court will ultimately clarify whether the party had the right to make the decision.

"This has to be settled one way or another," he said Monday. "Whether I win or lose."

The DNC later decided to restore the state's delegates but to penalize Florida Democrats by giving the delegates half votes. Eventually the delegates were granted full votes at the party's August convention.

DiMaio attorney Michael Steinberg contended last month during oral arguments that the case isn't moot, and said the court should consider the possibility that another primary scheduling fiasco could happen.

The DNC, meanwhile, urged the court to rule that the party has the right to set its own rules, and it can choose not to seat delegates who refuse to follow them. Its attorneys asked the court not to "second-guess" its policies.

The three-judge panel did not wade into that argument. Instead, the judges concluded that the case is moot, and said if another challenge is filed in 2012, "it would not evade review."

DiMaio first filed the lawsuit in August 2007, after Florida was stripped of its delegates for holding primaries before Feb. 5.

The 11th Circuit dismissed the lawsuit in March, ruling that DiMaio lacked standing because he had yet to vote in the primary when the challenge was filed. But DiMaio amended the complaint weeks later.

DiMaio, who said he was disappointed with the court's latest decision, cast his legal battle as a challenge on behalf of all of Florida's voters.

"I'm just one little guy fighting for all the voters in Florida," he said. "We could be in this catastrophe one more time."

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