Florida primary case heads to Atlanta court

ATLANTA — Victor DiMaio thinks the national bosses of the Democratic Party have lost their minds.

This afternoon he'll ask the 11th U.S. Circuit Court of Appeals to restore some sanity to the Democratic National Committee.

"They're going to blow off the fourth-largest state in the country?" DiMaio asked last week in an interview.

DiMaio is a Florida Democrat who sued the DNC last year over the group's decision to strip Florida of its delegates to the party's national convention in August. The suit was tossed out by a federal district judge in October, but DiMaio has appealed and a three-judge panel of the 11th Circuit will hear arguments at 1 p.m..

"When the DNC said they decided to strip Florida of all 210 delegates, we said, 'you've got to be kidding,' " said DiMaio, who is a member of his county Democratic Party executive committee and a Democratic political consultant.

And while U.S. District Judge Richard A. Lazzara dismissed DiMaio's complaint before it even got to trial, DiMaio himself sees reason for optimism in the 11th Circuit's decision to hold an emergency hearing today.

"They could have kicked us to the curb," he said. "But they've cleared the entire docket for the entire afternoon. There's something they see [in the suit] they want to talk about."

Any plaintiff tossed out of district court has an automatic right to appeal. But, said Neal Bradley, associate director for the ACLU's Voting Rights Project in Atlanta, it's rare for the 11th Circuit to hear an expedited appeal.

DiMaio sued after the DNC voted last year to penalize Florida (and Michigan) for scheduling their 2008 presidential primaries earlier than the party allowed. The DNC's decision, at the time, seemed inconsequential. There were plenty of other states holding primaries.

But now that the campaign for the nomination between U.S. Sens. Barack Obama and Hillary Clinton remains close, those 400-plus delegates lost in Florida and Michigan could potentially decide the nominee. There are various proposals floating around now to find a way to seat the states' delegates at the national convention in August. They range from holding new primaries later this spring to divvying them up to both candidates based on some formula.

All of that could become moot if DiMaio wins and the court orders a solution. The case will be heard today by 11th Circuit judges Gerald Tjoflat of Jacksonville and Stanley Marcus of Miami, plus a visiting judge, Senior U.S. District Court Judge Roger Vinson of Pensacola, Fla. Two of the judges were appointed by Republican presidents — Tjoflat in 1975 by Gerald Ford and Vinson in 1983 by Ronald Reagan. Marcus was appointed in 1997 by Democrat Bill Clinton.

And just so no one tries to find an ulterior motive to benefit one candidate or another, DiMaio said he supported former U.S. Sen. John Edwards in the Jan. 29 Florida primary. Now, he said, he's not committed to either Clinton or Obama.

DiMaio predicts this won't be the last stop in the process. If the appeals panel rules against him, he said he'll petition the Supreme Court, and he predicts the DNC would do the same.

Stacie Paxton, a spokeswoman for the national party, said the courts have upheld the right of the parties to enforce their own rules.

"The Florida Democratic Party has always had the option of running a party run process that complies with the rules. If they had done so, their delegates would all have been seated and this issue would have disappeared," she said in a statement. "We'll continue to work with Florida leaders in hopes of coming to a solution."

A spokesman for the Florida Democratic Party, which is a co-defendant in the suit, did not respond to requests for comment.

Lee Parks, an Atlanta voting rights lawyer, thinks it will be DiMaio who will have to appeal. He said he doesn't see a constitutional problem with the DNC's decision.

"Primaries are driven by state law. You don't have to have a primary," he said.

And because political parties are private organizations, not part of the government, they can make their own rules, Parks said.

"The argument that this voter is not being allowed to participate in a primary, it doesn't have a constitutional predicate," Parks said.

The trial judge, Lazzara, agreed.

While DiMaio argued that the DNC's decision not to seat Florida's delegates at the national convention violates the Equal Protection Clause of the 14th Amendment to the U.S. Constitution, Lazzara was not moved.

First, he ruled that DiMaio lacked standing to bring the suit. That is, he said it's not DiMaio's place to make the complaint.

The Constitution, he said, "directs state legislatures to determine the manner in which electors for the office of president and vice president shall be appointed and provides the manner in which those electors shall perform their duties," Lazzara wrote.

The state of Florida, however, plays "no role at all" in choosing delegates to the Democratic National Convention, he said. "The DNC, in enforcing its delegate selection rules, is simply refusing to recognize the results of that primary in the allocation of delegates to the convention. This does not amount to state action."

Plus, Lazzara wrote, the U.S. Supreme Court "has consistently recognized that national political parties have a constitutionally protected right to manage and conduct their own internal affairs, including the enforcement of delegate selection rules and the decision as to which state delegates it will recognize, under the First Amendment's right to freedom of association."

In his appeal, DiMaio's attorney, Michael Steinberg of Tampa, argues that if no individual voter could ever have standing to sue a party over its nomination process, there's nothing to stop a party from preventing women, blacks, Hispanics or any other group from participating. While DiMaio "concedes that this situation does not involve" such discrimination, the point is the same, Steinberg wrote in the appeal.

Finally, DiMaio argues that it's unconstitutional for the DNC to treat one state differently than others. The DNC set its calendar to allow Iowa, New Hampshire, Nevada and South Carolina to vote ahead of all others and told the rest of the states they could vote any time after Feb. 5. That's not allowed, DiMaio said.

If the party had simply said no state could hold a primary or caucus before Feb. 5, DiMaio "would agree that there would not be an equal protection issue," Steinberg wrote.

Or, to put it more simply, DiMaio said in an interview, "why are those four states so special?"

DiMaio isn't seeking any money and he said Steinberg is working for free. He simply believes, he said, that the situation is a mess.

"Even for future reference, this issue has to be settled," he said.

Aaron Gould Sheinin writes for The Atlanta Journal-Constitution.