Advocates Want The Supreme Court To End The Write-In Dodge

Aug 12, 2016

If it were illegal it would be the perfect crime. Phony write-in candidates are stealing the franchise from thousands of Florida voters who don’t even know they’re victims. But a Jacksonville civil rights attorney is asking the Florida Supreme Court to do something about it.

A Jacksonville civil rights attorney is asking the Florida Supreme Court to reconsider its stance on write-in candidates and the Universal Primary Amendment.

Chris Schwantz, a Niceville Realtor, isn’t your typical candidate. He doesn’t attend forums, knock on doors or accept contributions. A write-in for State House District 4, he has no website -- and no intention of winning.

The only reason Schwantz qualified is to stop Democrats and independents from voting in what would otherwise be a Republican primary. It’s perfectly legal.

“If the Democrats wanted to have the candidates, they could have put a candidate in. And the Republicans can vote for the Republican, and in the general election, everyone gets a chance at that point.”

Confused? Don’t feel bad. Most people aren’t familiar with Florida’s Universal Primary Amendment – or UPA -- and why it’s even in the constitution.

House District 4 is a textbook example. Since it drew only Republican candidates, the winner of the August 30 primary goes straight to Tallahassee. Independents and non-Republicans have no say.

Voters thought they fixed that when they approved UPA in 1998. It lets anyone vote in a primary when there’s no opposition in the general.  But the courts say write-ins count as opposition. Common Cause Florida chair Liza McClenaghan says partisans are brazenly recruiting phony write-ins to game the system.

“ It’s reprehensible. It’s yet another way office holders and office seekers are selecting their voters whether than the other way around.”

Leon County Elections Supervisor Ion Sancho says deliberately denying the vote to thousands of Floridians isn’t the only problem. He says closed primaries tend to favor fringe candidates from both ends of the political spectrum.

“The process does tend to foster extremism, forcing partisans to settle the issue strictly within their own system.”

A recent report by the Tampa Bay Times found that write-in candidates are denying the vote to 1.6 million Floridians in legislative races this year.

But a state attorney race in Duval County proved to be the last straw for Jacksonville civil rights attorney Samuel Jacobson. In that race, write-in candidate Daniel Leigh was actually a supporter of incumbent State Attorney Angela Corey. And Corey’s campaign manager filed Leigh’s qualifying papers.

Jacobson is petitioning the Florida Supreme Court to invoke the UPA and open up the primary.

“The basic idea of the amendment is that if a primary is for all intents and purposes going to be the actual election then it ought to be an open primary and everybody can vote. That is, we think, wholesome to Democracy.”

Jacobson estimates Leigh’s political ploy is denying some 500 thousand Democrats and independents the right to choose their state attorney. But he faces an uphill battle. The court ruled in February, in a case called “Brinkman,” that the UPA cannot be triggered when a write-in candidate enters the race.

Stetson Law School professor Ciara Torres-Spelliscy says Jacobson’s chances of getting the Supreme Court to change its mind are slim.

“Well, courts are very reluctant to get into what Justice Frankfurter used to refer to as the political thicket. Especially in light of the Brinkman decision.”

It’s a thorny problem, experts say, because nobody wants to discourage a legitimate write-in candidate from running for office. Kissimmee Democratic Senator Darren Soto, who is running for Congress, thinks he has a solution.

He filed a bill last session that simply says write-in candidates don’t count as opposition when all the candidates in a race are from the same party. The bill didn’t get a single hearing.

“I think it’s critical for us to try to keep to the spirit of that amendment and err on the side of enfranchising voters rather than disenfranchising them.”

Soto won’t get another shot at passing a state law. But he says he will encourage his successor to try. Soto faces significant Democratic AND Republican opposition in his Congressional race, but not a single write-in.