Today a Leon County judge ordered that a notice could not be put up in the 16th Congressional District informing voters that a vote for Mark Foley on the ballot would be construed as a vote for Joe Negron.
After reading the submissions to the Judge Janet Ferris and her ultimate ruling in the case I have collected some thoughts on the decision, and the intriguing timing of the democrat conviction about the "sanctity of the voting booth." If you find the review of the opinion boring, skip on down to the "democrats" section
Honestly, after my initial review of the decision I thought it was pretty well reasoned. The strongest argument against the posting of the notice, as Judge Ferris points out is the fact that the legislature has not specifically authorized such a posting. On the contrary, it directs that if there is a change in candidates after a specific time, the ballots are not to be changed. Sounds reasonable, and it even a textualist argument. But even under textualism, the answer is not always clear.
The question is whether or the legislature has authorized the Supervisors of Elections to post such notices. Judge Ferris says not because it is not explicitly expressed, but I think that it just might be.
Under the Florida Statutes, the Supervisors of Elections are given the responsibility of educating the public on how to vote. Specifically, they are directed on providing instructions on the voting system. Certainly, a change in the person a vote will be going to in a voting system without a change in the name on the ballot falls under the jurisdiction of a facet of the voting system. But an argument can be made, and a reasonable one at that, that the candidate change does not effect the manner of voting.
The key is found in Section 101.031 of the Florida Statues, under the "Voter's Bill of Rights." Here it says voter are entitled to "Written instructions to use when voting, and upon request, oral instructions on voting from election officials." So oral instructions may be supplied when requested. And written instructions do not need to be requested. There is our answer.
A voter can ask an poll worker, "Hey, I though Mark Foley was out of the race. Why is his name still on the ballot?" and the poll worker can explain that the vote goes to Joe Negron. That same instruction, under the Voter's Bill of Rights should be available, without instruction, in writing.
There are good arguments either way, but in making her decision, Judge Ferris seems to have relied upon one section of statute to the exclusion of all others.
And to be fair, some of the arguments submitted on the side of the notice were terrible as well. But ultimately, the best argument supports the posting of the notice.
Regardless, the decision is being appealed, so we can expect a 1st DCA decision, and possibly a Florida Supreme Court decision as well. I'll be very interested in Justice Bell and Justice Cantero's view on the matter.
What is even more interesting than the decision has been the democrat reaction. The main claim in the media they have made is that posting the notice is showing favoritism to Republicans, and they have been vocal and adamant about it. This is interesting for two reasons.
First, the notice lists the name of the democrat candidate as well. Here is what the proposed notice looks like:
I didn't think the notice favored Republicans when I thought it would only have Foley and Negron's names on it. But with this notice, how on earth does it favor anyone? The Republican is listed first, so it is biased? It is a silly argument from silly people.
Second, the timing is oh so intriguing. The fact is, this is not a unique circumstance. Pasco county is considering a similar notice because a candidate dropped out. A South Florida Circuit Court Judge ordered that a similar notice be put up in a polling place informing voters not to vote for a candidate who was disqualified and listing the names of the other candidates.
Today, Negron's opponent Tim Mahoney called the ruling a "victory for Florida voters." If the notice would be a loss for voters where was the statewide, loud democrat outcry we on these other two notice issues? No, for the democrat leadership this isn't about winning for Florida's voters, this is about them winning. And if confusion at the polls will give them an edge, they will defend it to the death.
You can find the text of the decision and other submissions to the Court here.
You can find the Florida Election Code here.