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Write-in Loophole Continues to Disenfranchise Voters

Another election, another open primary stymied by the write-in voter loophole. Once again, it was in a race that came down to the narrowest of margins, and once again thousands of registered voters were kept from the polls by a widely used electoral tactic that obviously subverts the intent of our state constitution. How does this keep happening? Because the elected officials in the Florida Legislature refuse to remove a tool that they or their cronies might someday want to employ.

In the District 2 Manatee County Commission race, three candidates qualified for the ballot: incumbent Michael Gallen, Palmetto City Commissioner Charles Smith and former candidate Corie Holmes. All three are Democrats. In 1998, Florida voters overwhelmingly passed a constitutional amendment to open primaries in which, "all candidates for an office have the same party affiliation and the winner will have no opposition in the general election."

Clearly, this race would seem to fit the bill as whomever won would surely take the seat. However, a man named Troy Thomas, also a Democrat, filed to run as a write-in candidate. A write-in candidate does not appear on the ballot, nor do they have to collect signatures or pay a qualifying fee. They simply fill out a very simple form and are then eligible to receive write-in votes on the blank line below the other contestants.

That's why some races have such a space and others don't, and why some seemingly unopposed candidates appear on the ballot (with only this line beneath their name), while others do not. Many voters don't understand that if they write in the name of someone who has not "qualified" as a write-in candidate on that line, their vote is simply discarded. Filing as a write-in simply means that such votes on your behalf will be counted.

After the '98 amendment, candidates almost immediately began using the write-in vote strategically if they thought an open primary would work against their chances. State law prescribes that write-in candidates are placed on the general election ballot, irrespective of party affiliation. So even when the write-in is registered with the same party as the other candidates, the race is still closed. Simply get someone to file the paperwork (they don't even have to live in the district) and suddenly you have an "opponent" in the general election and an otherwise open primary is closed off.

Opponents quickly cried foul, but the Florida Department of Elections, under then-supervisor Katherine Harris, interpreted this loophole as valid and despite several attempts to challenge it in court, the tactic has stood. It seems that only a legislative fix or perhaps another, more specific amendment, either doing away with write-in candidates or making it clear that they do not impact open primaries, would be required.

Of course some states have fully open primaries in which any voter can vote in any primary, but that set-up is not immune to political chicanery either, as you often see campaigns designed to encourage voters from one party to participate in the other's primary only to attempt to nominate the candidate seen as weakest for the general election, in order to give their party an advantage.

Florida's system seems pretty sound if we would just close this gaping loophole. Gerrymandering has left too many districts less than competitive. With the cost of campaigning for races continuing to skyrocket, more and more offices end up unopposed outside of the party the district has been carved out to favor.

I think we all agree that the best democracy occurs when the largest amount of our citizenry is allowed to participate in selecting their elected officials, as evidenced by the amendment's success. Voters registered to the minority party, third parties and independents should not be so easily disenfranchised.

While the impact of the write-in candidate can only be speculated upon, common sense suggests it is profound and often alters a race. Gallen lost his seat by a mere four votes. In 2010, he won the seat in an open primary, faring well with Republican voters in the district. Had they been allowed to participate, it's reasonable to presume he could have won.

In 2012, 22-year BOCC veteran (and TBT publisher) Joe McClash lost a race by a 494-vote margin. McClash's seat was countywide with over 25,000 votes cast, and having received endorsements from both the Sierra Club and Manasota 88, it's reasonable to presume that Democratic voters, were they allowed to participate as the amendment intended, would have made up the difference.

In both races, neither "write-in" candidate campaigned in any way whatsoever. Both refused to talk to the press and both had ties to an opponent and/or their financial supporters. The fact that their candidacies were purely tactical couldn't have been more obvious. Even so, it should be noted that a write-in candidate has never won any Florida election, or even come close - EVER. In most cases, they receive no more than a mere handful of votes. This was clearly not the intent of the amendment, as it has the opposite impact of what it sought to promote.

A lot of politicians have complained about the lack of voter participation in the August election and pointed to a shortfall in civic duty. But what's their role in creating the sort of apathy that causes almost twice as many voters to stay home as usual? By standing by while a farce like the write-in voter tactic is allowed to stand, their credibility on the issue is painfully thin. Our legislature, which is already woefully short on credibility, should remedy this affront to democracy in its 2015 session.

Dennis Maley's column appears every Thursday and Sunday in The Bradenton Times. He can be reached at dennis.maley@thebradentontimes.com. Click here to visit his column archive. Click here to go to his bio page. You can also follow Dennis on Facebook.


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