On Tuesday, attorneys in Tampa and Orlando filed a lawsuit with the Florida Supreme Court to block the “All Voters Vote” Amendment 3 from the current general election.
Lawmakers from both sides of the aisle held a news conference announcing the effort in light of studies that found the amendment could disenfranchise Black voters.
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The perfect storm
It’s a rarely-used and tough to pull off legal strategy, but Tampa attorney Anne Corcoran said this is the exact situation it was designed for.
“In our petition we called it a perfect storm,” she said. “The reason we called it that is because it has a very rare set of facts, but it has a very critical set of facts.”
Corcoran said that since the Florida Supreme Court approved the inclusion of Amendment 3 on November’s ballot, new information has come to light. The petition filed early Tuesday cites new studies from Matthew Isbell, an election data specialist, and former State Representative Sean Shaw. Both studies found the Amendment could reduce Black representation at all levels of Florida state government.
Corcoran was joined on the call by State Sen. Janet Cruz and in-coming Republican Speaker of the House Chris Sprowls, whose district covers much of north Pinellas County.
Sprowls acknowledged the 11th-hour effort.
“This a fundamental change to our election system,” he said. “So given the late hour or not, that doesn’t’ mean we’re going to step off the field and say, ‘let’s pass an amendment to the constitution that could do irreparable damage to our electoral system.’”
The Jungle Primary
Currently, Florida primaries are closed, meaning a voter can only vote in the primary of the party they are registered in. Voters with no party affiliation, which represents a rapidly increasing percentage of Florida voters, can’t participate in primaries.
Amendment 3 would create a top-two primary system in Florida, under which all parties and voters participate in a single primary election and the top-two candidates go on to the general election.
That could mean two candidates from a single party would appear in the general election. Corcoran pointed out that’s exactly what both studies found could have happened in the 2018 gubernatorial race had there been what’s called a “Jungle Primary” system.
“Both of them found that in the 2018 governor’s race, that if NPAs had been allowed to vote, it still wouldn’t have changed that the top-two vote getters would’ve been Ron DeSantis and Adam Putnam,” Corcoran said.
Reducing representation
The petition was filed on behalf of Glen Gilzean, a Black man from a majority-minority district. Gilzean found that Amendment 3 could change the landscape of his district. Both studies analyzed past election data to find that more than a dozen House and Senate districts could lose their Black representation if the primaries were opened up.
“The ballot title and summary do not adequately explain what this amendment would do to majority-minority districts like mine,” Gilzean said. “This lawsuit is vital to bring that issue to light before the upcoming election.”
The petition challenges the Amendment on the grounds that it creates a constitutional conflict by limiting minority representation and the ballot title and summary don’t meet clarity requirements because they don’t disclose ancillary effects.
The right choice for Florida?
Part of the basis for Amendment 3 is the belief that closed primary systems disenfranchise non-party affiliated voters. And while Senator Cruz acknowledged that might be true, she said Amendment 3 trades one set of disenfranchisements for another and doesn’t accomplish its intended goal.
“I don’t want to see any voters disenfranchised,” Cruz said. “But I want us to come to the table with something that works and not something that splits votes and manipulates elections.”
Aside from changing face of minority representation, Amendment 3 could split votes. If one party has only two candidates in a primary and the other has five, it’s more likely the party with fewer candidates could see both advance. Cruz suggested an Open Primary system that would have NPA voters select a primary to participate in instead of creating a free-for-all.
All Voters Vote, the lobby group behind Amendment 3, has raised millions to get the initiative on the ballot and also pulled out a new weapon Tuesday — a political ad featuring Magic Johnson supporting the Amendment.
But Cruz pointed out a massive collection of organizations spanning both sides of the aisle and all political ideologies have spoken against the bill. Some, like the League of Women Voters, even changed their stance from support to opposition once the Shaw and Isbell studies came out.
“It’s not just opposed by us, the political parties,” Cruz said. “The Florida League of Women Voters, the ACLU of Florida, the NAACP, the Florida State Conference, the Florida League of Conservation voters and many more are opposed to Amendment 3. And you know why they’re opposed? Because this is not a Democrat verse Republican issue. This is a voter issue.”
The current suit focuses on the pre-ballot process, but if Amendment 3 gets the 60-percent approval it needs to pass, a constitutional challenge would likely follow.
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