Appeal planned after judge dismisses lawsuit over "sham" State Attorney candidate

The primary race for Fourth Circuit State Attorney will stay closed, meaning only registered Republicans can vote.

Until earlier this year, only registered Republicans had qualified to run in the race, which deals with Duval, Clay, and Nassau counties. If it had been only those three candidates- Angela Corey, Wes White, and Melissa Nelson- then the primary race in August would have been opened to all voters, despite Florida being a closed primary state, because no Democrats filed to run.

Registered Republican Kenny Leigh then qualified as a write-in candidate, which closed the primary, allowing only registered Republicans to vote. The winner of the primary would then be the only name on the ballot in the General Election in November, appearing next to a line where a voter could write in Leigh’s name if they wanted to vote for him.

The Florida Supreme Court has previously ruled that a write-in candidate is considered opposition, wherein it is enough to close the primary, even if the candidate doesn't have a good chance of winning in the General Election. This case was different, the plaintiff's claimed, because Leigh is a "sham" who's only purpose for filing was to close the primary in an effort to benefit the incumbent, Corey, who he had publicly supported and donated to. Corey's campaign manager at the time also helped file the paperwork, although he says he was working in his capacity as a state committeeman.

“A decision that the Supreme Court issued a few months ago is being interpreted in a way that we don’t feel is really the way it should be interpreted under these circumstances,” says Stephanie Sussman, who is one of the attorneys representing the plaintiffs in the case.

Closing the primary meant about 319,000 registered Republicans in the tri-county area could vote in the race, but nearly 439,000 non-Republicans would have to wait until the General Election, where only the primary winner’s name would appear.

“What’s going on here is a sham, it’s a ploy that the voters of this judicial circuit are being cheated out of their right to have their voice heard in this election,” Sussman says.

Senior Circuit Court Judge Richard Townsend has now ruled that, while it is “inconceivable” that the design of the law is to exclude voters from the process for a “sham” candidate, Florida law as it stands does not allow for any relief. He noted that prior court rulings have urged against judicial interference in elections, and that if they aim to determine motive now, it could lead to a slippery slope.

“Right now, it’s following the law. The law is what it is, Judge Townsend got it right,” says Stefani Nolan, who is co-counsel with Leigh.

The judge further ruled that the voters weren’t denied due process with the closed primary, because they didn’t present evidence to show they have a “fundamental right” to vote in another party’s primary. Nolan says Democrats had every opportunity to put forward a candidate from their party as well.

“They should have put up a candidate if they wanted to have a say in the race at the primary level, they will have a say at the General level,” she says.

While Townsend has dismissed the case, he noted that the complaint was not frivolous. He added that, if this was a first of its kind case and there were not prior similar rulings already, the result may have been different.  Sussman says it’s frustrating to have the judge acknowledge many of their arguments, but admit to being bound by the current law, so they plan to continue the fight.

A notice of appeal has been filed, and Sussman says they plan to ask the First District Court of Appeals to relinquish their jurisdiction and send the case to the Florida Supreme Court. While she acknowledges that it’s unusual procedure, she says they’re trying to speed things along because of pending deadlines in connection to the election.

“We don’t plan to abandon out case, even if the deadline isn’t met,” she says.

Nolan says they will continue to fight as well, saying it’s important to help uphold the law as it’s been interpreted.