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Florida primary suit has new life
A federal appeals court agrees to hear arguments on a bid to make votes count.
By Bill Varian, Times Staff Writer
Published February 28, 2008
Democrats may be focused on the upcoming Texas, Ohio and Pennsylvania primaries to get a better idea of who their presidential nominee may be.
But a federal appeals court in Atlanta is giving them one more reason to keep at least a wandering eye on Florida.
The 11th Circuit Court of Appeals has agreed to hear oral arguments from a Tampa man seeking to have Florida's Jan. 29 Democratic presidential preference primary votes count.
The decision is no indication of how the court views the merits of the lawsuit. But many suits are rejected on written pleadings alone, which was the case when the suit was filed in the lower court.
"If I was the plaintiff, it's a lot better to be asked than not to be asked," said Stetson University College of Law professor Charles Rose. "It may be the presage of something interesting."
Vic DiMaio, a party activist in Hillsborough County, sued the Democratic National Committee over its decision to strip Florida of its 210 delegates because the state's primary was earlier than party rules allow.
Federal District Judge Richard A. Lazzara harshly dismissed the case in October without a hearing, saying the suit was deeply flawed. He said prior court rulings have made clear that political parties can set their own rules for choosing their presidential nominees.
The primary went on with Democratic candidates banned by the DNC from campaigning in the state. Sen. Hillary Clinton handily won the popular vote, but gained no delegates, before Barack Obama went on a tear of primary victories in other states.
Now the appeals court is saying: Not so fast. It wants to hear more, after reading the written arguments in the case. Each side will get 30 minutes to argue its case on March 17.
Michael Steinberg, a Social Security lawyer and chairman of the Hillsborough County Executive Committee, represents DiMaio. He said the appeals court ruling could set a precedent. Other lawyers reached were not so sure.
Attempts to reach the DNC were not successful.
A different federal judge rejected a similar suit brought by Sen. Bill Nelson, Rep. Alcee Hastings and Rep. Corrine Brown, among other Democrats. The group decided not to appeal, choosing instead to work with the party toward a resolution.
Kendall Coffey, a Miami attorney representing Nelson, said little can be read into how the appeals court views the argument. He said all appeals face long odds, and getting the opportunity to make an oral presentation is like making it to first base.
"It certainly means that there won't be a summary rejection," Coffey said. "I think it also reflects the court's awareness that, if there is merit, it has great public importance."
Mark Herron, an attorney representing the Florida Democratic Party, also a defendant in the suit, wouldn't go that far.
He said the appellate judges could simply have a procedural question, rather than substantive ones.
"I don't think we'll know what the significance of the oral argument is until we actually show up and hear what the questions are," Herron said.
The state party is a reluctant participant in the suit, hoping Florida's delegates get seated. In fact, the party plans to hold caucuses to elect delegates this Saturday in case they should get seated.
Times staff writer Adam Smith contributed to this report. Bill Varian can be reached at email@example.com or 813 226-3387.