Democrats Self-Destruct in Lose-Lose Florida Case:by Ann Woolner
March 19 (Bloomberg) -- To watch Democrats poised to plunge themselves into yet another avoidable defeat, come with me to a high-ceilinged courtroom, dark with finely carved wood.
Two lawyers, both devoted Democrats, both representing other devoted Democrats, are locked in litigation. Three men in black robes sit in a raised bench above the attorneys asking why their court has been dragged in to referee a family fight.
This panel of the 11th Circuit Court of Appeals in Atlanta will decide whether (or, more likely, how) to kill a lawsuit filed by a party activist in Tampa, Florida, against the Democratic National Committee and the Florida Democratic Party.
Why do Democrats need Republicans for a fight, when they have each other? Victor DiMaio is asking courts to force the DNC to seat Florida's delegation to the national nominating convention. The DNC has refused because the state party defied national rules by holding its primary before it was supposed to.
``I just want my vote to count,'' DiMaio told reporters after the argument earlier this week. He voted for John Edwards, by the way.
DiMaio wants all the 1.7 million votes cast in the Jan. 29 Democratic primary in Florida to count, too. So he is trying to persuade federal judges to butt in.
Already one judge has said no thanks, citing a glaring error in DiMaio's suit, filed last August. DiMaio never said he intended to vote in the January primary, so what rights did he have that he could claim someone violated?
``DiMaio wholly fails to satisfy the constitutional criteria for standing'' to sue in federal court, U.S. District Judge Richard Lazarra ruled in October.
`Exercise in Futility'
Nor would the judge allow DiMaio's lawyer to amend his filings to insert DiMaio's intent. That ``would be an exercise in futility,'' because there's no way they'd win even if all vital elements were included, Lazarra wrote.
In fact, two months later another federal judge threw out a similar (but ably written) suit brought by Democratic Senator Bill Nelson of Florida against DNC Chairman Howard Dean and others.
``The DNC acted within its First Amendment association rights when it determined to exclude Florida delegates chosen in violation of the party's schedule,'' U.S. District Judge Robert Hinkle of Tallahassee, Florida, wrote in December.
That ruling isn't binding on DiMaio, but it doesn't help, either.
Being Counted
Look, I get why
Florida Democrats feel cheated. If you cast your vote in an election, you want it to count. You don't want the party bosses in Washington pushing you and your state around, either, declaring that only four, specific states are allowed to have early primaries.
How democratic is that? The DNC underestimated the political storm it would kick up with its rules, which Michigan also defied. The national and state parties are now trying to figure out how to clean up the mess they created.
And
while that sideshow unfolds, the race between the party's two frontrunners keeps getting nastier, the possibility of eventual reconciliation more remote, while the Republican Party has the luxury of spending this time to attempt unification.
Political problems don't mean a constitutional violation has occurred. A political party has every right to decide how it will pick its presidential nominee, as long as it doesn't, say, exclude a race of people from the process.
By the Rules
One of the judges on the 11th Circuit panel, Gerald B. Tjoflat, even volunteered during argument that the party could legally exclude whatever states it wanted to exclude, whether they abided by rules or not.
Eleventh Circuit Judge Stanley Marcus, in questioning Steinberg, won a concession that the national party has the right to set a primary schedule and compel compliance.
``But they have to treat the states equally'' Steinberg added. The party violated the 14th Amendment's equal protection promise by ``allowing some states to have more influence in the outcome than other states.''
The only thing is, to invoke the 14th Amendment, Steinberg must convince the judges that the DNC is a government. It's not like in 2000, when the state of Florida's actions were at issue.
``The party is an association,'' Tjoflat offered. ``It's not a government entity.''
Reality Intervenes
As for reducing Florida's influence by denying it an early primary, that's an assumption now undermined by reality.
Herein lies yet another problem with DiMaio's suit. (Are you counting?)
It assumed, as most of us did way back last summer, that by the time the first four contests ended, the nominee would be selected and the remaining states would have little or no say.
And yet, now it's March and still no nominee. For influence, a vernal equinox primary would have worked just fine.
By the time the judges got a chance to question the DNC's chief counsel, the first thing they asked was how they could dismiss the lawsuit in the legally proper way.
Sensing things hadn't gone well, Steinberg told reporters later that if the appeals court backs Lazarro's decision, he'll ask the U.S. Supreme Court to weigh in.
Now, there's a good Democrat for you. It seems he has forgotten what happened the last time the high court ruled in a presidential case from Florida.
(Ann Woolner is a Bloomberg news columnist. The opinions expressed are her own.)
To contact the writer of this column: Ann Woolner in Atlanta at awoolner@bloomberg.net.
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