Duke v. Smith, 92-0134-CIV.
| Decision Date | 30 January 1992 |
| Docket Number | No. 92-0134-CIV.,92-0134-CIV. |
| Citation | 784 F. Supp. 865 |
| Parties | David DUKE, Patrick J. Mahoney, Larry Agran, Lyndon H. Larouche, Jr., Guillermo Sanchez, Tasharay S. Otway-Smithers, David Baldwin, Edward J. Rosenfeld, Eugene Cottrell, Claire Urdl, William Edward Bonnell and Susan Brooks Thomas, Plaintiffs, v. Jim SMITH, Secretary of State of the State of Florida, T.K. Wetherell, Speaker of the Florida House of Representatives, Gwen Margolis, President of the Florida Senate, James M. Lombard, Minority Leader of the Florida House of Representatives, Ander Crenshaw, Minority Leader of the Florida Senate, Simon Ferro, Chairman of the Florida Democratic Party, and Van Poole, Chairman of the Florida Republican Party, in their capacities as members of the Florida Presidential Selection Committee, Defendants. |
| Court | U.S. District Court — Southern District of Florida |
Bruce Rogow, Beverly Pohl, Fort Lauderdale, Fla., Nina Vanik, Miami, Fla., Richard B. Kay, Tequesta, Fla., H. Collins Forman, Fort Lauderdale, Fla., for plaintiffs.
Mark Levine, Fort Lauderdale, Fla., George Waas, Tallahassee, Fla., for defendants.
E. Thom Rumberger, Daniel J. Gerber, of Rumberger, Kirk & Caldwell, P.A., Orlando, Fla., for Van Poole, Crenshaw and Lombard, defendants.
THIS suit involved as plaintiffs a number of individuals seeking placement on the presidential preference primary ballot of the Democratic and Republican parties in the State of Florida. Another group of plaintiffs includes individuals who are political party member registered voters who would like to vote for one of the other candidate plaintiffs.
Plaintiffs LaRouche, Agran and Mahoney are seeking placement on the Democratic party presidential preference primary ballot. Duke seeks placement on the Republican party ballot. The Court also permitted Eugene McCarthy to intervene as a plaintiff seeking access to the Democratic ballot. Plaintiffs ask this Court to enter an injunction ordering that their names be placed on the primary ballot scheduled for March 10, 1992 and to declare the procedure set forth in Florida Statute § 103.101 as unconstitutionally void for vagueness since it provides no rules governing the decisions of the political parties and it allows for such parties and their officials to make their decisions in an arbitrary and capricious manner. Specifically, the plaintiffs allege that the Presidential Selection Committee composed of the chairman of the Democratic and Republican parties, as well as the Senate President, Speaker of the House (presumably the majority party leaders), and the minority party leaders in each legislative house, excluded plaintiffs from their parties' ballots because of the candidates' political beliefs.
The complaint was filed on Friday, January 17, 1992. The Plaintiffs seek injunctive and declaratory relief pursuant to 42 U.S.C. § 1983 and 28 U.S.C. §§ 2201 and 2202 alleging violations of rights guaranteed by the First and Fourteenth Amendments to the United States Constitution. Subsequently, the Court held a status conference and the attorneys for all parties requested from the Court an expedited trial date.
Since the presidential preference primary ballots must be printed by February 4, 1992,1 the Court enters this Order on an emergency basis.
The plaintiffs and defendants consented, pursuant to Rule 65(a)(2) of the Federal Rules of Civil Procedure, to a consolidation of the trial on the merits with the preliminary injunction evidentiary hearing. The Court held a trial on Tuesday, January 28, 1992.
Van Poole, chairman of the Florida Republican party and member of the Presidential Candidate Selection Committee, gave live testimony in this matter. Poole, Ander Crenshaw, minority leader of the Florida Senate and James Lombard, minority leader of the Florida House of Representatives, comprise the Republican party membership on the selection committee. Poole represented that Secretary of State Jim Smith's role, consistent with the statute, is merely as a nonvoting chairman who does not participate in the decisions of the Republicans or Democrats to add or delete names from the list of candidates. Democrat members of the Committee select Democrat candidates for the ballot, and Republican members select Republican candidates.
Poole testified that the three Republican members of the selection committee agreed to delete David Duke's name from the list of candidates submitted because his political views were inconsistent with traditional Republican values. Poole specifically cited Duke's former activities with the Ku Klux Klan, Nazis and his association with the National Association for the Advancement of White People. The Republican members of the committee chose President George Bush and Patrick Buchanan to appear as Republican candidates on the presidential preference primary ballot.
Poole pointed out that David Duke attempted to gain access to the presidential preference primary ballot in 1988 as a Democrat. When Duke was denied access, he ran on the Populist party ballot and received 249 out of a possible 4 million votes. Given this lack of support and his absence of beliefs in Republican values, the Republican Committee members decided not to include Duke's name on the Republican ballot.
Poole acknowledged that there are no criteria set forth in the statute governing procedures for selecting candidates or reconsidering denial of access, or delineating Republican values. Questioned about a statement made by Secretary of State Smith concerning ambiguities in the statute, Poole explained that the Secretary was uncertain as to how to proceed in the absence of any member at selection committee meetings.
Poole testified that the State of Florida did not assist in denying Duke access since the Republican party has its own by-laws and internal operating guidelines. Poole stated that a private party has the right to associate with whomever it desires.
Poole asserted that the Selection Committee meetings did not have to occur in the Governor's conference room in the state capitol. The statute only mandates that the meetings take place on a specific day and could be located at any place including party headquarters. Poole stipulated that the state participates in the preference primary elections by facilitating elections with machines, voting cards and employees. Poole admitted that prospective candidates are not required to submit a candidacy filing fee.
Simon Ferro, chairman of the Florida Democratic Party and member of the Presidential Candidate Selection Committee, also testified at the trial. Ferro testified that the three Democrat members of the selection committee excluded Larry Agran, Lyndon Larouche, Patrick Mahoney and Eugene McCarthy from the Democrat preference primary ballot because these individuals did not meet two established criteria.
The two criteria used by the Democrat members were (1) whether the prospective candidate had qualified for federal matching funds and (2) whether the prospective candidate is generally recognized on a national level. These criteria, although not written, were developed by a straw ballot committee in accordance with the views of the Democratic National Committee. No candidate was deleted from the ballot on account of political beliefs. Ferro admitted that there are no standards in the statute which authorize or prescribe the unwritten, unpublished criteria used by the Democrat members to evaluate a prospective candidate's access to the ballot.
Ferro expressed his belief that the Selection Committee members were acting in their capacities as political party leaders and not as elected state officials. Ferro testified that the Florida Democratic party is a private organization operating under its own rules and procedures independent from interference by the state. The state does not restrict the right of the committee members of each political party to choose their own candidates to be placed on the preference primary ballot. Ferro maintained that the state is completely uninvolved with the selection of candidates. The Democrat members of the committee do not participate in choosing Republicans, and the Republicans are not involved in selecting Democrats.
After Ferro finished testifying, David Duke took the stand in his own behalf. Duke reiterated that he is a nationally declared Republican candidate for President of the United States who formerly held state representative office as a Republican in Louisiana. Duke stated that he was previously a conservative Democrat, but he became disenchanted with Democratic ideals and has been a Republican since 1988. Duke believes that he has gained access to the presidential preference primary ballots in at least ten states.
Defendant Van Poole's Exhibits, No. 1 and No. 2, are respectively the minutes of the January 7 and January 16, 1992 meetings of the Presidential Candidate Selection Committee. The minutes from the January 7 meeting show that the Republican members of the committee did not wish to add any candidate to their list of George Bush and Pat Buchanan. The Democrats did not desire to add to their list of Jerry Brown, Bill Clinton, Tom Harkin, Bob Kerrey, Paul Tsongas and Doug Wilder. The reference to ambiguities in the statute clearly revolves around whether a meeting of the Selection Committee could occur in the absence of any member.
The January 16 minutes show that in the reconsideration hearing, the Democrats did not wish to add to the list of Democrats and the Republicans did not desire to add to their list.
Defendant Simon Ferro's Exhibit No. 1 is a questionnaire sent by Ferro to the Democratic executive committee seeking input from Democrats in compiling the list of candidates to be submitted to the Secretary of State. The questionnaire shows how many votes a prospective candidate...
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Savas v. Smith, 92-01036
... ... Savas had not alleged, and could not by further amendment allege, a cause of action. See Quinn v. Stone, 259 So.2d 492 (Fla.1972); see also Duke v. Smith, 784 F.Supp. 865 (S.D.Fla.1992) ... ...