TALLAHASSEE, FLORIDA – If Florida is going to change its closed primary system, which can block voters from the other party from casting ballots, it will probably have to be addressed in the Legislature, according to an attorney.

Daniel Nordby, a partner in Shutts & Bowen LLP, said the Florida Supreme Court’s recent decision to dismiss a challenge of the state’s closed primary system, follows past decisions and the Florida Constitution.

“That case really is the logical consequence of what the supreme court decided a couple of years ago,” he told the Florida Record. “I think it’s a correct application of what the constitution says.”

The court has continued to uphold the closed primary system because it does not want to judge the merits of write-in candidates, Nordby said.

“The court didn’t want to get into a case-by-case judgment,” he said. “The supreme court said it wasn’t going to case-by-case judge the validity … of a write-in candidate,”

In this most recent case, three Republican candidates were vying to be state attorney of the Fourth Judicial Circuit. They were Angela Corey, Melissa Nelson and Wes White. When a write-in candidate, Kenneth Leigh, joined the race, it closed the Aug. 30 primary to only Republican voters.

If the four had remained in the race, the November ballot would have only reflected the winner of the Republican primary. Democrats and Independents would not be able to vote.

“Florida for a very long time has had a closed primary system,” Nordby said. “Each party puts forward its own candidate. If there’s more than one, we have a primary. If members of a political party aren’t happy with a choice they are given, they should put another candidate on the ballot.”

If changes are going to be made to Florida’s closed primary system, they will have to be done in the state Legislature, Nordby said.

“I think it’s likely that this issue isn’t going to be litigated much in the years going forward,” he said.

In a June 17 opinion to dismiss, Richard Townsend, senior circuit court judge, noted that in 1998, Florida voters amended Article VI, section 5 of the Florida Constitution to state that if all candidates for an office have the same party affiliation and the winner will have no opposition in the general election, all qualified electors, regardless of party affiliation, may vote in the primary elections for that office.

This amendment is known as the Universal Primary Amendment. In 2000, the Florida secretary of state issued an opinion stating that a write-in candidate constitutes opposition in the general election. Therefore, if there is a write-in candidate, a general election primary will remain closed.

The plaintiffs in this most recent case had alleged the Leigh’s candidacy was a “sham” and that his purpose in qualifying as a write-in candidate was not to be elected state attorney, but was solely for the purpose of closing the Republican Party primary to assist Corey. Also, there are 319,004 registered Republican voters in the Fourth Judicial Circuit and 438,894 registered voters who are not Republican.

Townsend cited Brinkmann, 184 So. 3d at 511-15, “The court will not consult a crystal ball to determine when and whether a given write-in candidate constitutes real or illusory opposition.”

In the Florida state attorney race, Corey lost the Aug. 30 primary. Write-in candidate Leigh said he will not continue his bid. Nelson is the state attorney-elect.

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