1
1 STATE OF FLORIDA
CONSTITUTION REVISION COMMISSION
2
3
4
5
COMMISSION MEETING
6
7
8
9
DATE: December 12, 1997
10
TIME: Commenced at 8:30 a.m.
11 Concluded at 1:35 p.m.
12 PLACE: The Senate Chamber
The Capitol
13 Tallahassee, Florida
14 REPORTED BY: MONA L. WHIDDON
JULIE L. DOHERTY
15 KRISTEN L. BENTLEY
Court Reporters
16 Division of Administrative Hearings
The DeSoto Building
17 1230 Apalachee Parkway
Tallahassee, Florida
18
19
20
21
22
23
24
25
2
1 APPEARANCES
2 W. DEXTER DOUGLASS, CHAIRMAN
3 CARLOS ALFONSO
CLARENCE E. ANTHONY (EXCUSED)
4 ANTONIO L. ARGIZ (EXCUSED)
JUDGE THOMAS H. BARKDULL, JR.
5 MARTHA WALTERS BARNETT
ROBERT M. BROCHIN
6 THE HONORABLE ROBERT A. BUTTERWORTH
KEN CONNOR
7 CHRIS CORR
SENATOR ANDER CRENSHAW (ABSENT)
8 VALERIE EVANS
MARILYN EVANS-JONES
9 BARBARA WILLIAMS FORD-COATES
ELLEN CATSMAN FREIDIN
10 PAUL HAWKES
WILLIAM CLAY HENDERSON
11 THE HONORABLE TONI JENNINGS
THE HONORABLE GERALD KOGAN
12 DICK LANGLEY (EXCUSED)
JOHN F. LOWNDES
13 STANLEY MARSHALL
JACINTA MATHIS
14 JON LESTER MILLS
FRANK MORSANI
15 ROBERT LOWRY NABORS
CARLOS PLANAS (EXCUSED)
16 JUDITH BYRNE RILEY
KATHERINE FERNANDEZ RUNDLE
17 SENATOR JIM SCOTT (EXCUSED)
H. T. SMITH
18 CHRIS T. SULLIVAN (EXCUSED)
ALAN C. SUNDBERG
19 JAMES HAROLD THOMPSON (EXCUSED)
PAUL WEST (ABSENT)
20 JUDGE GERALD T. WETHERINGTON
STEPHEN NEAL ZACK
21
PAT BARTON
22 IRA H. LEESFIELD (ABSENT)
LYRA BLIZZARD LOGAN (EXCUSED)
23
24
25
3
1 PROCEEDINGS
2 (Quorum taken and recorded electronically.)
3 SECRETARY BLANTON: Quorum call, quorum call. All
4 commissioners indicate your presence. All commissioners
5 indicate your presence. Quorum present, Mr. Chairman.
6 CHAIRMAN DOUGLASS: Would everyone have their seats.
7 Okay. Will you come to order, please. This -- would you
8 all rise and we'll call on Reverend David Horton, senior
9 pastor of Trinity United Methodist Church in Tallahassee,
10 one of our oldest and most important churches. And we are
11 delighted to have him this morning. May we pray.
12 REVEREND HORTON: Creator God, we pause before you
13 before beginning these proceedings to seek your blessing
14 and your guidance upon these who have gathered to revise
15 the Constitution of the State of Florida. We turn to you
16 because we think of you as a source of wisdom and truth,
17 as a source of inspiration and insight, we regard you as
18 the motivation for equity and justice. We always need
19 your encouragement as we work with those who come from
20 different perspectives. Help all to work toward a
21 government that serves the people of Florida with
22 efficiency in economy. In the name of all that is holy
23 and worthy we pray, Amen.
24 CHAIRMAN DOUGLASS: Commissioner Alfonso, please come
25 lead the allegiance to the flag.
4
1 (Pledge of Allegiance.)
2 CHAIRMAN DOUGLASS: All right. Chairman of rules,
3 Commissioner Barkdull.
4 COMMISSIONER BARKDULL: Mr. Chairman, members of the
5 commission, you have on your desk a proposed special order
6 which picks up what we did not consider yesterday, it
7 picks up the matters that were on the calendar that we did
8 not reach.
9 CHAIRMAN DOUGLASS: We need some order, please.
10 COMMISSIONER BARKDULL: It added some of the items
11 that came out of some committees. Some of you have
12 inquired about why matters that did not reach the calendar
13 that were in your committees and voted out, those that had
14 amendments to them, had to go back to bill drafting, and
15 many of them did not get to the office in time to be on
16 the calendar, and therefore, they're going to obviously
17 have to go over to January. I move, sir, that we do
18 ratify the order as suggested by the rules committee.
19 CHAIRMAN DOUGLASS: Already it's been moved that we
20 adopt the special order recommended by the rules
21 committee. Without objection, it is adopted.
22 COMMISSIONER BARKDULL: Mr. Chairman, at this time,
23 I'd like to the call on Commissioner Mills for a report
24 for the special committee on Article V, Costs.
25 CHAIRMAN DOUGLASS: Commissioner Mills, you are
5
1 recognized.
2 COMMISSIONER MILLS: Mr. Chairman, your committee on
3 Article V, Costs, met yesterday. As I reported to you
4 before, we were examining the issues of what should be
5 included in the definition of the court system. We have a
6 preliminary redraft, which I will ask the staff to
7 distribute to all of you before we come back next time.
8 The remaining issues are which items which are
9 currently in local judicial budgets should be included in
10 Article V, Costs, if, in fact, we determine that we are
11 going to acquire those costs to the State, such issues as
12 regarding ad litem, such issues as translators. And just
13 for background information, the committee at this time I
14 think has the thinking that if it's constitutionally
15 required, it should be probably part of those things that
16 we assume the obligation for.
17 And there is a whole second issue which the committee
18 will consider next time dealing with the treatment of the
19 clerks under Article V, their costs and their fees, fines
20 and forfeitures. So we will meet again next time and I
21 think we will have at that point a draft to bring back to
22 the floor. Thank you, Mr. Chairman.
23 CHAIRMAN DOUGLASS: Thank you, Commissioner Mills.
24 We'll move to the special order. Go ahead, excuse me,
25 Commissioner Barkdull.
6
1 COMMISSIONER BARKDULL: I just have a couple more
2 comments. The -- as yesterday -- as we approach the
3 adjournment today, I want to give you time to withdraw any
4 matters that you might want to withdraw so that the staff
5 will know what they are before we come back in January.
6 At the present time we are scheduled to come back Monday
7 the 9th of January. The rules committee does not
8 contemplate changing those dates that are set. We hope
9 that everybody will be here.
10 The -- during the progress of the morning, I
11 understand, in the next hour, hour and a half, the snacks
12 will be in the back room and I hope we can proceed as far
13 as we can go today. Obviously, from looking around the
14 chamber, we are going to have to -- have a problem with
15 attendance, we will have to see how far we can go.
16 CHAIRMAN DOUGLASS: We presently have, I believe, 25
17 present, 26. And that's getting pretty sparse. You
18 know -- go ahead.
19 COMMISSIONER BARKDULL: Excuse me, I've been
20 corrected. It is Monday the 12th that we come back up
21 here. I am in the wrong month.
22 CHAIRMAN DOUGLASS: And the wrong date. Those of you
23 that are here, you know, we all appreciate your being
24 here. We are having trouble with attendance and it's
25 pretty obvious that Friday people decide that we won't
7
1 miss them and they proceed to go to other pursuits. And I
2 don't want to single anybody out, but we are going to have
3 to have better attendance and we are going to have to have
4 people stay. Because what will happen if we don't have
5 enough people here when we consider these matters, we'll
6 been doing it all over again.
7 And I think we are getting to the point where we have
8 got to start moving. And we can't keep putting off a lot
9 of these difficult issues, we are going to have to get to
10 it and get them refined and passed or defeated. And I'd
11 ask all of you to please try to plan your schedule for
12 these January meetings so you don't have to leave on
13 Friday. And you can get here when the meeting starts and
14 you can be present during the course of the meetings.
15 Certainly, for constant absentees, the appointing
16 authorities can take some action in relation to that. And
17 I know that they certainly don't want to, but I also know
18 that when people were appointed they were told that this
19 was going to be a very time-consuming process. And
20 everybody came with their eyes wide open.
21 I do realize that some things come up that you cannot
22 take care of. Commissioner Sullivan had to go have some
23 medical things today that could not be put off. And he is
24 one that came to me early and told me that that was
25 happening to him. I don't think that it's anything
8
1 serious, I think it's more in the area of testing-type
2 medical procedures. But those types of things are going
3 to happen. But I do know that some people say, Well, I've
4 got to go do something for a big client today.
5 Certainly, all of us that have been in the law
6 practice know that you can usually get around that and set
7 it at another time or do it on Saturday and Sunday or
8 whatever if it's a big enough client. I think, again,
9 please pass that word to those members that seem to leave
10 on the last day, they are really hamstringing the work for
11 the commission.
12 The debate yesterday for the unicameral legislature,
13 for your information, I think was one of the -- for
14 whatever it's worth -- I think a lot of people agreed with
15 me, was one of the best debates on a constitutional issue
16 that's been held. It was in '78, I was on that one. I
17 don't think anything approached the presentations. There
18 was not any repetition, which Commissioner Jennings and I
19 discussed is very, very unusual. Every person that spoke
20 had a point of view, they said it and there was no
21 personal involvement as occurs in most bodies and I want
22 to compliment this group on what I think will be a
23 classical inquiry into the legislative branch.
24 And the television of that, the video is taped and
25 certainly will probably wind up being used in a lot of
9
1 classrooms around the state as an example of a discussion
2 that really gets to the issues on this. Commissioner
3 Evans-Jones, I still voted no, but you just did a great
4 job. And in spite of your double close and having
5 Commissioner Sundberg speak, you did great. And
6 Commissioner Sundberg, I'm teasing you, of course, because
7 your presentation was equally impressive.
8 COMMISSIONER EVANS-JONES: A bicameral close.
9 CHAIRMAN DOUGLASS: Beg your pardon?
10 COMMISSIONER EVANS-JONES: Bicameral close.
11 CHAIRMAN DOUGLASS: A bicameral close, all right.
12 See, what did I tell you. Now we can start it on the
13 special order -- yes, Commissioner Evans?
14 COMMISSIONER EVANS: I for one, and I know there are
15 some other people who did not get the change of calendar
16 neither by fax or mail nor any other way. I have on my
17 calendar that we are meeting in January, the 5th, 6th, and
18 7th, starting at 1:00 on the 5th. Possible meeting, I
19 haven't heard whether possible has become actual, 14th
20 15th and 16th. And then another meeting, definite, 21st,
21 22nd, 23rd. So I need the amended calendar. Granted this
22 is not much notice for me, but I still need it.
23 CHAIRMAN DOUGLASS: If you haven't gotten it, it's
24 because for some reason there was a glitch, because
25 everybody has had it for some time.
10
1 COMMISSIONER EVANS: Everybody has not.
2 CHAIRMAN DOUGLASS: Is there a motion to fire
3 Mr. Buzzett? You are granted a reprieve.
4 (Laughter.)
5 CHAIRMAN DOUGLASS: Commissioner Barkdull?
6 COMMISSIONER BARKDULL: Mr. Chairman, they were
7 supposed to be stapled to the back of this matter. It
8 will be distributed this morning. It is the week of the
9 12th and three days of the week of the 26th. There will
10 be a copy of it distributed.
11 CHAIRMAN DOUGLASS: I think the 12th is Monday.
12 COMMISSIONER BARKDULL: 1:00 on Monday the 12th and
13 conclude at 1:00 that Friday on that week. The week of
14 the 26th is scheduled to start, I believe, at 9:00 in the
15 morning on Monday and conclude on Wednesday afternoon.
16 Those will be three full days. The chamber is not
17 available on Thursday, and we are not scheduled to meet on
18 Friday.
19 CHAIRMAN DOUGLASS: All right. Now, if you have
20 problems with that, don't bring them up on the floor, go
21 bring them up with the rules committee and then we'll talk
22 about it. Commissioner Freidin?
23 COMMISSIONER FREIDIN: Do you know the schedule for
24 February also?
25 CHAIRMAN DOUGLASS: Commissioner Barkdull?
11
1 COMMISSIONER BARKDULL: We will have a tentative -- I
2 think it's been distributed, but it'll be redistributed
3 this morning.
4 CHAIRMAN DOUGLASS: All right. February schedule
5 will be redistributed this morning. Commissioner Zack?
6 COMMISSIONER ZACK: Mr. Chairman, for those going to
7 south Florida, there is a 12:10 flight and then another
8 one that leaves at 3:45. And I'm wondering if it's
9 possible and there's been some discussion among a number
10 of people including yourself, about the possibility of
11 working evenings. Particularly when we get into January,
12 because people just go back to the room and have dinner
13 and go to sleep, we're really here to work and get out and
14 do whatever we have to do. If that's a possibility, I
15 know you need to think about it and reflect on the
16 schedule and so forth. But to the extent that that's
17 possible, I thought that it might be an idea to consider.
18 CHAIRMAN DOUGLASS: We have discussed this, it's
19 under consideration. On the days when you start at
20 1:00, that's a distinct possibility. On the other days,
21 if you go a full day, you need to go home because anything
22 that's done after 6:00 or 7:00 becomes rather
23 nonproductive in this setting. So we're considering that
24 and I think that we will address it if we have to. And
25 it's been considered and will continue to be considered.
12
1 COMMISSIONER ZACK: The only thing I would ask is
2 that if it's possible to make the five-day meeting into a
3 four-day meeting by using Monday evening as opposed to
4 Friday morning, it might be of some assistance.
5 CHAIRMAN DOUGLASS: I think if we don't get started,
6 it's pretty obvious, we are going to need a six-day
7 meeting every night on the first week in January to get to
8 these issues. We're not going to make that determination
9 at this point. We are considering what we're going to do
10 but I think you can rest assured -- and don't make plans
11 to leave here early on Friday like everybody, not
12 everybody but a lot of people seem to do, because in
13 January you're going to find we've got a lot of these
14 things and we're going to have to take them up and we need
15 to do it in an orderly manner. And now if we don't get
16 started, we are going to be here and get nothing done
17 today.
18 Now unless it's very important -- all right.
19 Commissioner Riley.
20 COMMISSIONER RILEY: I would like to suggest that
21 instead of the 1:00 beginning in January, that we start as
22 we have been at the 9:00 a.m. Would that not give us a
23 little bit more time and perhaps --
24 CHAIRMAN DOUGLASS: Commissioner Riley, I'm referring
25 your very important suggestion to the rules committee
13
1 where it should be addressed. They set these things and
2 they're not to be done from the floor. And I'm not
3 recognizing any more discussion on this because the place
4 to do it is in the rules committee and that's why we have
5 them. Everybody can get up and tell their individual
6 problems and we could go all day.
7 I'm going to call the first -- if that's all from the
8 rules chairman, we'll proceed to the special order. And
9 the first item is committee substitute for Proposal 47
10 which you will please read.
11 READING CLERK: Committee substitute for Proposal 47,
12 a proposal to create Article VIII, Section VII, Florida
13 Constitution, and revise Article XI, Section III, Florida
14 Constitution, providing that the power of self-government
15 of a county or municipality may not be diminished except
16 by general law, county charter, or special act approved by
17 the electors of the county or municipality; providing that
18 a constitutional initiative that limits the powers of
19 municipalities or limits the ability of municipalities to
20 raise revenue must be approved by the electors of a
21 municipality in order to take effect within a
22 municipality.
23 CHAIRMAN DOUGLASS: All right. We have two
24 amendments on the table. I would like, however, for the
25 proponent of this to present the proposal first and then
14
1 we'll go to the amendments. Commissioner Nabors, you are
2 recognized to discuss, as a proponent, to the proposal. I
3 understand also that you have an amendment on the table.
4 If you will tell us first the proposal and then address
5 your amendment.
6 COMMISSIONER NABORS: I don't know whether
7 Mr. Anthony's schedule is going to permit him to be here
8 or not. This is his proposal although he and I -- I
9 believe he's in agreement with the amendment. Do you want
10 to the TP it?
11 CHAIRMAN DOUGLASS: First, tell us what the proposal
12 is then offer your amendment.
13 COMMISSIONER NABORS: The proposal and the amendment
14 are the same, it's a matter of language. One of the
15 geniuses of the '68 constitution is a concept of
16 home-rule, within your charter counties, non-charter or
17 municipality. And the proposal basically recognizes the
18 fact that you could have a statewide initiative, whether
19 it's constitutional or the legislative on the issue of
20 local concern, and that that could be a flaming political
21 issue, for example, in Broward and Dade and could pass and
22 could diminish the home-rule power within other areas of
23 the state.
24 It's not intended to deal with anything like the net
25 ban, which is a matter of statewide importance. But the
15
1 language, and I'll go over the language in detail, the
2 language, when you're dealing with matters of local
3 concern, the proposal basically says that the home-rule
4 power of counties and cities will not be diminished by any
5 initiative, except by general law, charter amendment or
6 special act approved by the voters. The reason is, if you
7 have a local problem, then there generally is a mechanism
8 to deal with that.
9 If you are a charter government, almost every charter
10 has an initiative procedure in that. If you are a
11 non-charter county, you can -- special act is a solution
12 or you could have a citizen initiative to create a
13 charter. I don't envision that this would ever be a
14 freestanding proposal. The concept is, is that if we have
15 a proposal dealing with legislative initiative that this
16 would be something that if it passes with a majority
17 today, and I hope it does, could be considered by style
18 and drafting to be incorporated into the document.
19 We've just got to recognize the diversity of this
20 state. And you've got to recognize the population
21 realities. And you could have, as I say again, a
22 statewide initiative to deal with the problem in south
23 Florida, and the votes would be there to take away local
24 home-rule prerogatives in Orange County, in Okaloosa
25 County, and Escambia County.
16
1 So what is intended to get, it's intended to be
2 surgical in a sense. It only would deal with those
3 matters of local concern and not matters of statewide
4 import.
5 CHAIRMAN DOUGLASS: All right. Commissioner Nabors
6 moves the adoption of committee substitute of Proposal 47
7 and he has an amendment on the table which he introduces
8 as well. Would you read the amendment, please.
9 READING CLERK: By Commissioner Nabors. Delete
10 everything after the proposing clause and insert lengthy
11 amendment.
12 CHAIRMAN DOUGLASS: Explain your amendment, please.
13 COMMISSIONER NABORS: This is the language -- the
14 original proposal had the language in the amendment plus
15 other language in there. It was intended to be amended in
16 committee, but the proposal that was in the jacket really
17 is inartfully drafted and the substance gets to the heart
18 of the matter.
19 CHAIRMAN DOUGLASS: So your amendment is just a
20 redraft of the proposal, no substantive change in what it
21 does.
22 COMMISSIONER NABORS: Not intended to be,
23 Mr. Chairman.
24 CHAIRMAN DOUGLASS: All right. I think we will --
25 Commissioner Barkdull.
17
1 COMMISSIONER BARKDULL: Do you want a debate on this?
2 CHAIRMAN DOUGLASS: Yes, I was deciding whether we
3 should just move the adoption of the amendment and proceed
4 with the debate. He's moved the adoption of the
5 amendment. All of those in favor of the amendment, say
6 aye. Opposed, like sign.
7 All right. We're now on the amended proposal -- do
8 you rise to speak to the proposal?
9 COMMISSIONER BARKDULL: I rise to ask the gentlemen a
10 question, I'm an opponent of the proposal.
11 CHAIRMAN DOUGLASS: All right. Questions are
12 appropriate. Commissioner Barkdull.
13 COMMISSIONER BARKDULL: Commissioner Nabors, as I
14 understand this, if there's an initiative referendum in
15 the state that we will, say, raise cigarette taxes 5 cents
16 and if this doesn't pass in a particular municipality or
17 unincorporated area, then that tax would not be levied
18 even though it might receive statewide support; am I
19 correct/
20 COMMISSIONER NABORS: No, I don't believe so.
21 COMMISSIONER BARKDULL: Well, it says that, the last
22 part of it, indicates if you attempt to raise revenue it
23 must be approved by the electors of the municipality --
24 COMMISSIONER NABORS: Well, the substitute language
25 doesn't have that in there. Have you got on your table
18
1 the committee substitute? What we tried to do, in the
2 substitute, the language appears on the first page, it
3 should be on your desk.
4 COMMISSIONER BARKDULL: All right. I've got it on my
5 desk and I'm looking at it. The first thing --
6 COMMISSIONER NABORS: Let me tell you why I don't
7 think that your question would have the result that you
8 suggest, because a statewide increase in cigarette tax
9 would not be a matter of local concern, that would be a
10 statewide issue just like net ban is a statewide issue.
11 On the other hand, if there was an initiative to limit the
12 ability of local governments to say that transportation
13 impact fees would be abolished, that would be a matter of
14 local concern, it wouldn't be a statewide issue. And that
15 would go to the local power of counties and cities.
16 The concern is, and this is a legitimate concern, is
17 you can have an issue that's a burning political issue in
18 Broward and Dade County and other areas of the state and
19 citizens can do an initiative process, it can pass in
20 those areas and it takes away powers of local concern in
21 other areas of the state when there are other vehicles
22 available for them to accomplish the same purpose.
23 We don't envision -- I don't envision and Mr. Anthony
24 doesn't vision this would be a freestanding proposal. But
25 in the event that we prove out of this commission a
19
1 concept of a legislative route of voter initiative, this
2 would be something they would ask -- the style and
3 drafting would take into consideration to attempt to
4 recognize there are certain matters of local concern that
5 should not be subject to the statewide vote and that power
6 taken away from those cities and counties.
7 COMMISSIONER BARKDULL: Well, what I'm looking at is,
8 we have a statewide amendment to the Constitution, by a
9 constitutional initiative, citizens initiative, and what
10 we can end up with is a hodgepodge of it being effective
11 in some jurisdictions and not effective in others.
12 COMMISSIONER NABORS: I can respond to that, is that
13 the genius of home-rule is that we do, in regulatory
14 areas, have a hodgepodge of laws because it recognizes the
15 unique situations of any state. What we are saying is, we
16 want to preserve that uniqueness in Florida and not have
17 the initiative procedure override that by a vote in one
18 area of the state.
19 COMMISSIONER BARKDULL: Excuse me, sir, but isn't one
20 of the differences that in the home-rule charters that is
21 something that's done under general law at the local
22 option of the people, whereas an amendment of the
23 constitution is a statewide statement?
24 COMMISSIONER NABORS: Well, I'll debate that and say
25 that's true. And what this is to get at is if those local
20
1 people have a charter which gives them home-rule, then
2 they would be the ones to vote to diminish that home-rule
3 and not have imposed by them someone out of their area.
4 CHAIRMAN DOUGLASS: Commissioner Wetherington?
5 COMMISSIONER WETHERINGTON: Commissioner Nabors, I
6 know a little bit about the local and general thing being
7 from Dade County. I'm having some difficulty
8 understanding how something that would be called pure
9 local concern, which has got to be very unique and of a
10 limited nature to the specific locality could really be
11 impacted by this. I mean, what would be a matter of pure
12 local concern, which usually means something that's unique
13 to that area that could possibly be the subject matter of
14 a statewide initiative. I'm trying to think of any kinds
15 of things that could fall into that that would meet the
16 test that you are suggesting.
17 COMMISSIONER NABORS: We heard testimony in Broward
18 County on special assessments. Let's say there was a
19 controversy in Broward County and Dade County on a special
20 assessment program, which is purely a local home-rule
21 non-tax initiative for utilities. So, there was a
22 movement in Dade County to have a statewide initiative
23 require voter approval of all special assessments of
24 utility operations.
25 COMMISSIONER WETHERINGTON: Wouldn't that affect
21
1 every area that engages in special assessments throughout
2 the state?
3 COMMISSIONER NABORS: That's right. And that is that
4 essential home-rule prerogative of special assessments.
5 In fact, each jurisdiction, as a matter of local concern,
6 and you have a vote in Dade and Broward County could take
7 that away from powers of Orange County, Okaloosa County,
8 and Calhoun County. I would contrast that to something
9 like the net ban which doesn't really recognize -- it's
10 not really a local concern, it is a concern of statewide
11 implication.
12 Now, maybe the language can be tightened up in style
13 and drafting, but the concept is that there are certain
14 matters that are essentially home-rule issues and that
15 those should be up to those people to vote on that as to
16 whether or not it's going to be diminished or not.
17 COMMISSIONER WETHERINGTON: I can't think of any,
18 that's the problem.
19 COMMISSIONER NABORS: Well, the one I gave you is a
20 classic example of that.
21 COMMISSIONER WETHERINGTON: On the special
22 assessments, it can be a statewide problem. One area may
23 be more interested in a special assessment or may have
24 more problems, but everybody has got special assessments.
25 So, why is that a matter of -- in other words, what I'm
22
1 saying is, there's going to be an enormous definitional
2 problem here if this thing passes to try to figure out
3 what qualifies and what doesn't and is it worth it, that's
4 the question I'm asking.
5 COMMISSIONER NABORS: Let me give you another
6 example. Let's say that there is a provision in Sarasota
7 County, for example, within their charter that the people
8 voted on that says that any bond issue in excess of
9 $10 million has to be voted upon. That's the restriction.
10 It doesn't apply in any county in this state. Is it an
11 initiative within Sarasota County. Let's say that there's
12 an issue about financing in the city of Miami and it got
13 to be a major issue to Dade County. Dade County could do
14 a charter amendment to the Miami charter to limit their
15 ability to bond -- as long as it's not inconsistent with
16 general law -- but it may not go that way, it maybe is a
17 statewide initiative and I would argue that's a matter of
18 local concern. It's not a -- within each county, that
19 should be a choice within that county.
20 COMMISSIONER WETHERINGTON: Well, the question would
21 be, whether if you have a bond issue over $12 million you
22 should have voter approval. Isn't that issue something
23 that would be an issue in every county in the state? One
24 county may like it and one may not but how is that a
25 matter of pure local concern, that's what I'm trying --
23
1 COMMISSIONER NABORS: Well, the reason it is, because
2 those counties -- 60 of the counties out of the 67 do not
3 like it, you could steal that part, it could be taken away
4 because of the vote in the other seven counties.
5 COMMISSIONER WETHERINGTON: But that can happen in
6 any instance, can't it? If the number of votes from south
7 Florida come in, it can defeat -- although most of north
8 Florida doesn't like it, it can be defeated by south
9 Florida's votes whether it's a matter of local concern or
10 however we categorize it.
11 COMMISSIONER NABORS: Absolutely. What we're saying
12 is if it's a matter of local concern dealing with
13 home-rule power, then that shouldn't be possible.
14 CHAIRMAN DOUGLASS: Commissioner Sundberg?
15 COMMISSIONER SUNDBERG: Mr. Chairman, would the
16 gentleman yield for questions?
17 COMMISSIONER NABORS: Yes.
18 COMMISSIONER SUNDBERG: To see how this operates,
19 Commissioner Nabors, let me give you a hypothetical.
20 Let's assume that there was a constitutional initiative
21 petition that provided that ad valorem taxes in the state
22 of Florida would be capped at 4 percent or 4 mills, I'm
23 sorry, 4 mills.
24 And do I understand that under this proposal, that if
25 in fact a municipality had a larger cap for taxation, that
24
1 that would not apply in that particular municipality; is
2 that correct?
3 COMMISSIONER NABORS: That's correct.
4 COMMISSIONER SUNDBERG: All right. Let me ask you
5 another hypothetical. What if the -- and let's assume
6 that that constitutional initiative passed by a 90 percent
7 vote across the state, let's take another hypothetical.
8 The state legislature in regular session passes a cap, an
9 identical kind of cap on municipal taxing power by a
10 simple majority of one, do I understand under your
11 proposal, that would be binding on each of those local
12 governments?
13 COMMISSIONER NABORS: Absolutely. Let me explain
14 that response. This does not -- in that instance, if this
15 was to pass, where there was an initiative dealing with
16 putting a cap on property taxes, what this would mean is
17 that would not go to the ballot because it would be a
18 matter of local concern. Now if I was in -- because it
19 basically says that the only way you can accomplish that
20 would be through general law, as you said, or through
21 charter member, the special act approval of voters. There
22 would be a limitation of those that go to the ballot.
23 It's not a situation where you look and see it passed
24 here and didn't pass here. It could be crafted that way,
25 but that's not the intent of this language. It would be a
25
1 limitation just like similar subject matters and
2 limitation. If it's a matter of local concern, it
3 couldn't be subject to a statewide initiative to be -- let
4 me make sure I'm responsive to your question.
5 CHAIRMAN DOUGLASS: Commissioner Mills?
6 COMMISSIONER MILLS: Does the gentleman yield for a
7 question?
8 CHAIRMAN DOUGLASS: He yields.
9 COMMISSIONER MILLS: What sort of troubles me is
10 trying to understand that this dealing with the powers of
11 municipalities, that's all municipalities.
12 COMMISSIONER NABORS: No, it's county and municipal
13 power.
14 COMMISSIONER MILLS: Do I have the wrong language?
15 Is there any such initiative that limits the powers --
16 that makes it even worse? I'm sorry. I mean, that limits
17 the power of counties and municipalities; is that what it
18 says now?
19 COMMISSIONER NABORS: With respect to matters of
20 local concern.
21 COMMISSIONER MILLS: Well, I think I'm with Judge
22 Wetherington, either it would be litigated each time and
23 even after they were passed or this creates a special
24 exception where the people of the state can by initiative
25 limit the power of any part of this state, I mean of the
26
1 state. And it sort of suggests that counties and
2 municipalities are not part of the state. The initiative
3 process, which is the people's -- one of the ways people
4 can limit, by Constitution, the authority of any part of
5 its state government. This is -- you are cutting out an
6 exclusion for local government, for local purpose and I
7 find that at least confusing because there are -- it's
8 hard for me to think of a circumstance that doesn't affect
9 more than one municipality or couldn't. I have -- and
10 also, it's clear that this is only limiting the power
11 that -- I suppose if you had an initiative that augmented
12 the power it would be okay.
13 COMMISSIONER NABORS: It's hard to imagine one that
14 would augment the power under our constitutional concept.
15 COMMISSIONER MILLS: I still don't understand. I
16 understand the examples that you have given, but have
17 there been any initiatives, in any of the hundred
18 initiatives or so that have been --
19 COMMISSIONER NABORS: Yes, I mean, there was an
20 amendment that should be voter approval of all new taxes
21 which was stricken on the single subject matter, that
22 would require a voter approval of any new tax, including a
23 change in a rate of a tax or removal of an exemption. Had
24 that passed statewide, and it could have passed because of
25 Miami and Dade, that meant any time the property taxes
27
1 were increased in any other county requiring voter
2 approval, I would argue that that type of a restriction
3 should be voted for by the people in that county and not
4 statewide.
5 COMMISSIONER MILLS: But it did apply uniformly to
6 every county.
7 COMMISSIONER NABORS: Well that's because -- that's
8 right. The point -- the fundamental point here is that
9 there are ways to restrict those powers currently through
10 local elections. And our concern is that if we are not
11 creating -- we are creating special groups in the cities
12 and counties only in the area dealing with their power of
13 local self-government on matters of local concern. And
14 the difficulty we're going to face is, without something
15 like this, you have a voter initiative that is a big issue
16 in a small area of the county, it's going to take away
17 that power of local government in other areas unaffected.
18 Whereas the solution to that is those powers can be
19 restricted at the local level but not be restricted on a
20 statewide basis. But it's not intended to deal with
21 issues that are beyond local concern. Issues such as net
22 bans, or issues that go beyond local issues, beyond the
23 power of local self-government.
24 CHAIRMAN DOUGLASS: Anybody else? Ready to vote?
25 Vote on the machine. Open the machine.
28
1 (Vote taken and recorded electronically.)
2 CHAIRMAN DOUGLASS: Lock the machine. Announce the
3 vote.
4 READING CLERK: Five yeas and 21 nays, Mr. Chairman.
5 CHAIRMAN DOUGLASS: It fails. Proposal No. 18 by
6 Commissioner Riley, would you please read it.
7 READING CLERK: Proposal 18, a proposal to revise
8 Article VI, Section V, Florida Constitution; providing for
9 elections to be held on Saturday and Sunday and
10 prohibiting second primaries.
11 CHAIRMAN DOUGLASS: Commissioner Riley, do you move
12 this?
13 COMMISSIONER RILEY: I did. And yesterday, I passed
14 out an amendment to this, which was in effect, to take out
15 the Saturday and Sunday and put back in the Tuesday.
16 Since I understand both by committee and by talking to the
17 commissioners that I don't think that would have gone
18 anyway, so I propose --
19 CHAIRMAN DOUGLASS: That now provides -- the change
20 would be it prohibits second primaries?
21 COMMISSIONER RILEY: Correct.
22 CHAIRMAN DOUGLASS: And that's the sole issue that
23 you have entered it at this point?
24 COMMISSIONER RILEY: Correct. That is the issue that
25 I would like to speak to.
29
1 CHAIRMAN DOUGLASS: Is that amendment on the table?
2 COMMISSIONER RILEY: It was on the table yesterday.
3 CHAIRMAN DOUGLASS: And we adopted it?
4 COMMISSIONER RILEY: No. It was passed out
5 yesterday.
6 CHAIRMAN DOUGLASS: Read the amendment, please.
7 READING CLERK: By Commissioner Riley on Page 1,
8 Lines 14 and 15, delete the words "Saturday and Sunday"
9 and insert "Tuesday".
10 CHAIRMAN DOUGLASS: All right. Commissioner Riley.
11 COMMISSIONER RILEY: Commissioners, I have looked in
12 this process for ways and areas that, through our
13 Constitution, we might be able to find ways to increase
14 participation in voting and I had hoped that weekend
15 voting might do that. I have pulled that out because of
16 religious problems and time constraints. However, the
17 remaining portion, which is the second primary issue, I
18 think may well also do that. And I have looked at the
19 numbers as I'm sure many of us have.
20 We have eligible voters in the county, not all of the
21 eligible voters register. Of those that are registered,
22 probably 60 percent, 65 percent, more in a national
23 election, but in a state election, that's about the number
24 that actually votes in the first primary. That number
25 goes down substantially in the second primary and I would
30
1 hope that if one primary is the only one that we have, we
2 would have higher voter participation, we would end up
3 with more people going to the polls. And I would ask you
4 to consider this proposal as a way to do that.
5 CHAIRMAN DOUGLASS: All right. Commissioner
6 Barkdull?
7 COMMISSIONER BARKDULL: Mr. Chairman, note me as an
8 opponent.
9 CHAIRMAN DOUGLASS: You're an opponent, go ahead.
10 COMMISSIONER BARKDULL: I want to speak against this.
11 This is putting into the Constitution the primary dates,
12 the primary systems, which is now a system that's
13 established by law. I don't think it belongs in the
14 Constitution. It's something that the Legislature can do
15 if they want to. I don't want to lock it in.
16 Number two, I don't think it, in this form, is really
17 the best form to the present something to the people,
18 where if you've got five people in a race it would be
19 possible for somebody to read it with 21 percent of the
20 vote. If you were going to do anything --
21 CHAIRMAN DOUGLASS: I forgot to adopt the amendment.
22 And you are speaking to the proposal.
23 COMMISSIONER BARKDULL: Yes, sir.
24 CHAIRMAN DOUGLASS: So, without objection, the
25 amendment is adopted and proceed with your debate.
31
1 COMMISSIONER BARKDULL: We've had a two-primary
2 system in this state since the early '30s. Prior to that
3 time, we had another system when we put in the primary
4 system about the turn of the century. And that was that
5 you had a second choice. And if there were more than
6 three or four people in the race, you voted your first
7 choice and your second choice and then the people that
8 were all below the second level, they picked up the second
9 choice votes on those that were eliminated. That's not
10 the best system in the world, but I think it's a better
11 system than a completely opened primary. So for both of
12 those reasons, I would oppose this. I don't think it,
13 number one, belongs in the Constitution. It can be
14 straightened out by the Legislature, anytime they want to.
15 And, number two, if we were going to go that way, we
16 ought to have the second preference rather than to just
17 give it to the person that secures the plurality.
18 CHAIRMAN DOUGLASS: All right. Commissioner Morsani?
19 COMMISSIONER MORSANI: I rise as a proponent of this.
20 It's obvious that it has come up many times in the
21 Legislature and they do not and I do not see them changing
22 this on behalf of the citizenry. It, invariably --
23 invariably it's an incumbency issue. When these have been
24 examined over time, it's been the incumbents that have
25 benefited by it because of what Ms. Riley has said,
32
1 primarily because the voter turnout is so low on the
2 second primary. I don't -- I recognize that it could be
3 done by statute and the Legislature. But invariably,
4 that's not going to happen. I strongly urge that we take
5 this action. I reluctantly say so. I wish it wasn't
6 necessary to do in the Constitution. But I -- in dealing
7 with the matter on the local level, many, many of the
8 people in our community, I know, have said the same thing.
9 I would urge you to vote for this proposal. I think we do
10 need this change in our state.
11 CHAIRMAN DOUGLASS: Commissioner Nabors?
12 COMMISSIONER NABORS: Commissioner Riley, as I read
13 this proposal, it deals not only with the issue of the
14 Saturday and Sunday, but also the fact that there can be
15 only one primary.
16 CHAIRMAN DOUGLASS: Saturday and Sunday has been
17 eliminated by the amendment. It's only the issue of the
18 second primary that's before the body.
19 COMMISSIONER RILEY: Question, Commissioner --
20 COMMISSIONER NABORS: I'll ask you a question. Do
21 you realize that had this been in effect, that Rubin Askew
22 and Bob Graham would not be governor?
23 COMMISSIONER RILEY: Well, it's easy to look back at
24 history and to say what might have been, and I suggest
25 that's sort of an exercise in futility. Who knows who may
33
1 have been had we not had the second primary and what other
2 outcomes may have been that didn't come. So it's a moot
3 point I would suggest and I don't think that's a reason to
4 not vote for it.
5 CHAIRMAN DOUGLASS: Some people might agree that's a
6 good reason, you know. Commissioner Smith?
7 COMMISSIONER SMITH: And had there not been a
8 monarchy, Solomon would have never been king, but we are
9 not in favor of a monarchy. I'm positive, notwithstanding
10 the debate of yesterday, that unintentionally stated that
11 dictatorship was an efficient form of government.
12 (Laughter.)
13 CHAIRMAN DOUGLASS: As long as it was Solomon.
14 COMMISSIONER SMITH: As long as it was Solomon,
15 that's correct. And I think that some of those who say
16 that the second primary is a good idea because their
17 candidate won, the candidate they favored. I mean, if
18 their candidate had not won, they may have been joining us
19 saying this is a bad system. I am very sensitive to
20 Commissioner Barkdull's concern as to whether or not this
21 should be a matter that's placed in the Constitution, but
22 I share Commissioner Morsani's view that this is something
23 that will be difficult to have the political leaders of
24 today, except maybe a few brave ones, one of whom may
25 already be on the way to Chattahoochee to deal with an
34
1 issue like this.
2 But I think it's important to note that while we have
3 this debate, that while Florida didn't officially adopt
4 the second primary until the 1930s, the second primary
5 idea came about at the time that slaves were freed as a
6 specific, articulated strategy to prevent newly freed
7 slaves from being able to seek office. Anyone who has
8 read and studied history knows that during reconstruction,
9 second primaries poll taxes and literacy tests were the
10 strategy that emanated from the south, starting in North
11 Carolina as a strategy for that purpose.
12 And because of that reason, whether or not the
13 Constitution or statutes are the proper way to deal with
14 it, I'm proud to rise with Commissioner Riley today to try
15 to, 110 years later, set the record straight and to try to
16 correct what I think is a strategy that not just now
17 affects the population it was intended to, but I think it
18 affects minor parties as well. And I think that that is
19 unfair. I think that it is a basis for which we find
20 voter apathy.
21 We look at the dropoff and runoffs, runoff elections,
22 and I think, one, I commend to those of you who have not
23 focused in on that history, it is a very, very sad
24 chapter. I had an opportunity to share some of that with
25 my friend Commissioner Connor as this matter came up in
DIVISION OF ADMINISTRATIVE HEARINGS (904) 488-9675
35
1 discussions before. And so I intend to proudly vote yes
2 to eliminate second primaries which had a very, very bad
3 basis for being formulated and implemented and have no
4 legitimate basis, in my judgment, to continue today except
5 to maintain the status quo. And with the type of the
6 apathy we have around this country, the worst thing we
7 could possibly do is just maintain the status quo. Thank
8 you.
9 CHAIRMAN DOUGLASS: Commissioner Ford-Coates?
10 COMMISSIONER FORD-COATES: I would like to ask a
11 question of the proposal -- proposer.
12 CHAIRMAN DOUGLASS: She rises to answer, Commissioner
13 Riley.
14 COMMISSIONER FORD-COATES: Thank you. Commissioner
15 Riley, Commissioner Barkdull spoke about the provision
16 whereby in a primary, a vote could be cast for first and
17 second choice.
18 COMMISSIONER RILEY: Preferential balloting.
19 COMMISSIONER FORD-COATES: Is there, as I read your
20 proposal, it allows the Legislature to provide for this
21 primary system in any way -- I mean, there's no provision
22 preventing them from doing that, is there -- they could --
23 could the Legislature not institute a one primary system
24 in any method that they deemed appropriate?
25 COMMISSIONER RILEY: If Commissioner Barkdull is
36
1 right and this isn't the place for this, which I disagree
2 with him on that, I suppose he would probably be the
3 better person to ask that. If your question concerns
4 preferential balloting, I'm familiar with that and I had
5 thought about that but I find the public to be fairly if
6 not very confused and chose not to put a preferential
7 balloting proposal before this body.
8 COMMISSIONER FORD-COATES: But that's not precluded
9 by. It only says there shall be a one primary, correct?
10 COMMISSIONER RILEY: Correct.
11 COMMISSIONER FORD-COATES: Okay. So if the
12 Legislature felt there was a problem with that, casting
13 only one vote, they could come up with another method.
14 COMMISSIONER RILEY: Again, there are better minds
15 and people who could answer that question than I.
16 CHAIRMAN DOUGLASS: Anybody else? Commissioner
17 Freidin?
18 COMMISSIONER FREIDIN: I rise with hesitation because
19 there are a couple of things about this proposal that
20 concern me. I am certainly in favor of doing whatever we
21 can to increase voter participation. And I believe,
22 Commissioner Riley, that is the reason that you advanced
23 this proposal. I'm not sure that I fully understand how
24 cutting off one election really increases voter
25 participation, that's number one.
37
1 But more importantly, I have a concern -- and this is
2 where my hesitation really comes in, because I understand
3 and feel with deep passion what Commissioner Smith talked
4 about and how -- and the history of the second primary and
5 why it was instituted. But on a parallel level, there is,
6 I think, a counterveiling concern, and that is that if we
7 went to a one primary system, that that would allow a very
8 small extremist candidate -- a very -- a candidate with a
9 very small extremist group of supporters to prevail. And
10 that is something that I think we need to be careful of in
11 this day and age when there are groups of people that hate
12 deeply other segments of our society. And for that
13 reason, I am confident that the second primary would help
14 to weed out extremist candidates. And for that reason, I
15 will vote no on this proposal, although I do favor
16 anything else that we can do to increase voter interest
17 and voter turnout.
18 CHAIRMAN DOUGLASS: Commissioner Barton?
19 COMMISSIONER BARTON: I am in favor of the proposal.
20 This issue has come before the Legislature frequently and
21 it has not been taken up for whatever reason. The second
22 primary, and if Commissioner Barkdull indeed is concerned
23 about low numbers, 21 percent electing on a field of five,
24 the numbers are frequently, almost always, lower in terms
25 of the voter turnout for the second primaries, thereby
38
1 having the candidate, sometimes, elected by as few as
2 single digit numbers.
3 I also know that the supervisors of elections who
4 represent both parties in the state of Florida are
5 unanimously opposed to the second primary, would like to
6 see it removed for a variety of reasons, the mechanics of
7 running another election at the same price as the first
8 primary as with such low turnout. And I strongly urge us
9 to do what the Legislature has not done.
10 CHAIRMAN DOUGLASS: Commissioner Connor, you haven't
11 spoke.
12 COMMISSIONER CONNOR: Mr. Chairman, I rise in support
13 of the proposal and will tell you that frankly, before we
14 begin these proceedings, before we convened, I was of the
15 mind that I would not support such a proposal.
16 Commissioner Smith did furnish me with some very, very
17 interesting material which I thought was profoundly
18 helpful in understanding this issue from a historical
19 perspective. And I think if one examines the historical
20 record, one can only fairly conclude that at least from a
21 historical standpoint the second primary was used as a
22 vehicle for disenfranchising minority groups.
23 By the same token I will tell you that, as one who
24 has voted in the minority most of the time I think during
25 the concurrency of these proceedings, that I have liked
39
1 the second primary, having supported candidates who may
2 not have been able to make the cut in the first round, but
3 who, because of an effective grassroots of basic
4 organization, were able to win the runoff.
5 So from a pragmatic political standpoint, I'm not
6 certain that the second primary cannot inure to the
7 benefit of groups that find themselves often in the
8 minority. So I will vote for this proposal with some
9 reservations. But I think when one examines the
10 historical record, that speaks to the origin of the
11 current system, that it is a vestige of the past that we
12 would be better off without.
13 CHAIRMAN DOUGLASS: Commissioner Connor, you've read
14 the historical perspective. If my recollection is
15 correct, this has never been in any Constitution, it's
16 always been statutory regulation of the parties as opposed
17 to being an election.
18 COMMISSIONER CONNOR: I have hesitation and
19 reservation about the inclusion of this in the
20 Constitution, because my view is that we typically are not
21 to serve as a super Legislature. But where the
22 Legislature has consistently advocated its responsibility
23 and where we do have a provision in our Constitution to
24 allow the people that have representatives in this kind of
25 process, I move forward with it. I will also be
40
1 supportive of other proposals that are designed to afford
2 greater ballot access wherein I think the Legislature has
3 unfairly and wrongly restricted the access of minor
4 parties to the ballot and have perpetuated the monopoly
5 that major parties have.
6 CHAIRMAN DOUGLASS: I want one more question just to
7 make sure I understand from a historical perspective. You
8 would then be, in effect, in favor of a statutory
9 initiative which this would in effect be?
10 COMMISSIONER CONNOR: I am going to support a
11 statutory initiative, yes, sir.
12 CHAIRMAN DOUGLASS: And that is coming up for later
13 consideration?
14 COMMISSIONER CONNOR: Yes, sir.
15 CHAIRMAN DOUGLASS: Commissioner Brochin?
16 COMMISSIONER BROCHIN: I have a question of
17 Commissioner Smith. Could you articulate for us, if you
18 believe, say since 1968, the second primary has had any
19 effect of disenfranchisement of African-Americans or other
20 minorities or is your concern, basically, from the
21 historical origins of it?
22 COMMISSIONER SMITH: Would you repeat the question,
23 please?
24 COMMISSIONER BROCHIN: Yeah. Do you have concern or
25 thoughts as to whether a second primary in recent history,
41
1 say since 1968, has had the affect of disenfranchisement
2 of minorities or is it more a concern out of the
3 historical origins of the second primary?
4 COMMISSIONER SMITH: Yes, this is more than theory.
5 Not only has it had an adverse affect in terms of
6 candidates who run, but worst of all, it has an intended
7 affect of what it was started, and that is to prevent the
8 chilling affect of having individuals run with an
9 understanding that you run, you get in the primary, the
10 other candidates get together against you and you can't
11 finally prevail in the end and that is that was the
12 purpose of it, that's why it came about.
13 So, yes, that has happened. And I think with regard
14 to that, I think that if you would like -- I hadn't been
15 prepared to cite some specific examples of cases where
16 individuals ran, but I'm sure I will be able to -- as I
17 sit here right now, I haven't thought about specific
18 races, but I'll be able to tell you in just a moment.
19 CHAIRMAN DOUGLASS: Commissioner Kogan?
20 COMMISSIONER KOGAN: All right. Let me tell you what
21 my concern is about this. My concern is very simply that
22 a proposal such as this absolutely favors an incumbent.
23 Remember now that an incumbent in any election has a
24 certain base vote. They are going to get that percentage
25 regardless of who the opposition is going to be. It's
42
1 very, very easy for an incumbent to go ahead and have
2 other persons join in that particular race, knowing they
3 are no threat to the incumbent, but rather they can gather
4 sufficient votes away from all of the other candidates
5 that are in the race, to allow the incumbent -- say, we
6 use Commissioner Barkdull's example, we have five
7 candidates in the race -- any incumbent, no matter how bad
8 they have been in office, is certainly going to be able to
9 get 21 percent of the vote. And if you can get a couple
10 of folks out there that you can induce to get into that
11 race, then certainly you are going to win every time.
12 And without the second primary, which will allow
13 basically the majority of people who didn't want the
14 incumbent to gather together and back one of the
15 candidates who finished second in that primary, this is
16 basically an incumbence relief act. You will never ever
17 get an incumbent out of office if that incumbent is
18 politically shrewd and knows how to manipulate the system.
19 Because they will start with a base which will allow them
20 to always come up with most of the votes in that first
21 primary.
22 So I agree with everything that Commissioner Smith
23 has had to say and most of the other people that are
24 supporting this, but this is what my fear is. And
25 therefore, I feel that I'm going to have to vote against
43
1 this particular proposal.
2 CHAIRMAN DOUGLASS: Question from Commissioner Smith.
3 COMMISSIONER SMITH: Commissioner Kogan, I think that
4 is a very legitimate concern that you have, and as always,
5 well expressed. Would you not agree, however, that most
6 states in the north do not have a second primary?
7 COMMISSIONER KOGAN: I don't know.
8 COMMISSIONER SMITH: Well, let's take, for instance,
9 New York as an example, which has, I know, bad mendicants
10 (phonetic), won and lost so that incumbent was out and
11 they don't have a second primary in New York. So I'm
12 saying, in other words, it's not like this is a
13 revolutionary idea that has never been tried in the United
14 States. Most states do not have a second primary.
15 COMMISSIONER KOGAN: That may very well be so, but
16 that doesn't mean that their system is operating properly
17 or the way it should be.
18 COMMISSIONER SMITH: Oh, I'm sorry, I apologize. My
19 question was that most other states, isn't it true --
20 COMMISSIONER KOGAN: I don't know what most other
21 states do, but I'll take your word for it.
22 COMMISSIONER SMITH: Wait a minute. I've got to ask
23 it like Commissioner Langley taught me yesterday. Would
24 you believe --
25 (Laughter.)
44
1 CHAIRMAN DOUGLASS: That is a House of
2 Representatives phrase I was informed. I've been
3 appropriated by them.
4 COMMISSIONER SMITH: Would you believe that most
5 states do not have a second primary? And in those states,
6 all incumbents do not always win?
7 COMMISSIONER KOGAN: Oh, I can believe that's true
8 because there are always exceptions to the rule, but I'm
9 talking now what I think generally would happen if you
10 eliminated the second primary.
11 CHAIRMAN DOUGLASS: Commissioner Barkdull?
12 COMMISSIONER BARKDULL: Does Commissioner Smith take
13 the floor and yield for a question?
14 COMMISSIONER SMITH: Yes, sir.
15 COMMISSIONER BARKDULL: Would you believe me, sir, if
16 I told you that in the most recent mayor's race in New
17 York that one candidate, the one that won, was a nominee
18 of the Republican Party and he ran against a lady that was
19 a nominee of the Democratic Party and she escaped to the
20 second primary with, I believe, a gentleman by the name of
21 Sharkdon (phonetic), because she was able to get a
22 sufficient vote in the first primary?
23 COMMISSIONER SMITH: That's absolutely correct, but
24 it was not required to be a majority vote, 40 percent
25 vote.
45
1 COMMISSIONER BARKDULL: But that's not what this
2 does.
3 CHAIRMAN DOUGLASS: All right. Ready to vote. Do
4 you want to try again, Commissioner Riley?
5 COMMISSIONER RILEY: I don't consider it trying it
6 again, Mr. Chairman. I would like closing arguments.
7 CHAIRMAN DOUGLASS: I meant speak again, pardon me.
8 COMMISSIONER RILEY: To speak to some of the issues
9 that have been brought up. What is the history? And I
10 would suggest that while Commissioner Barkdull has given
11 us some history that we should instead look to the more
12 compelling history that Commissioner Smith has given us.
13 In addition to that, I ask us to look at the costs. We
14 spoke a little bit about the cost to the county, but we
15 didn't talk about the cost to the candidate. And all of
16 us have candidates, I guarantee you, that we have
17 supported, that had funds to go through the first primary
18 but were very scarcely funded in the second primary. And
19 it's very difficult, especially with minority candidates
20 and women candidates, to raise money. This I think will
21 solve a lot of that problem.
22 As far as participation in that, you end up with a
23 small number of people electing your representatives. I
24 present to you that that's exactly what we have now. And
25 that the idea of this is to help alleviate that. You have
46
1 now, if you look at the number of eligible registered
2 voters, eligible but not registered, registered that vote,
3 registered that vote in the second primary, you end up
4 with a very, very small percentage of people that are
5 electing your representatives. And I guarantee you this
6 would change that to a higher number. So I would ask for
7 your support.
8 CHAIRMAN DOUGLASS: All right. Unlock the machine.
9 Please enter your votes. Lock the machine and announce
10 the vote.
11 (Vote taken and recorded electronically.)
12 READING CLERK: 11 yeas and 16 nays, Mr. Chairman.
13 HEARING OFFICER: Fails. We move to the next
14 proposal. Beg your pardon? Committee substitute for
15 Proposal 79 by the committee on ethics and elections by
16 Commissioner Riley. Commissioner Riley, you have the
17 floor and you move the adoption of this? It is moved.
18 COMMISSIONER RILEY: I do, Mr. Chairman.
19 CHAIRMAN DOUGLASS: Wait a minute. Would you read
20 it, please.
21 READING CLERK: Committee substitute for Proposal 79,
22 a proposal to revise Article VI, Section 1, Florida
23 Constitution, providing that requirements for placing the
24 name of a candidate with no party affiliation or minor
25 party candidate on an election ballot must not be greater
47
1 than the requirements for major party candidates.
2 CHAIRMAN DOUGLASS: Now, Commissioner Riley, you have
3 the floor.
4 COMMISSIONER RILEY: Commissioners, we heard about
5 this all around the state. And I would like to read you
6 some information this morning and I would like to thank
7 Speaker Webster who delivered this to my desk this
8 morning. This speaks to the requirements of a minor party
9 candidate, an independent party candidate, who would like
10 to get on the ballot but finds that the requirements to
11 get on the ballot are double what a major party
12 candidate's access to that ballot is.
13 And when you look at the numbers, what it boils down
14 to is, that it's easier to qualify for President of the
15 United States in the New Hampshire primaries than it is to
16 qualify for the Seminole County Commission and to get on
17 that ballot. I would suggest that that is a little
18 backwards. That's a little unfair, that is extremely
19 unfair. And again, if we are looking for participation, I
20 think this will do it. This will bring more people out to
21 the polls, it will bring more people out to vote. It is
22 equitable; it is fair; it's not going to be done any other
23 way except by this Constitution commission and I ask that
24 we pass this.
25 CHAIRMAN DOUGLASS: Commissioner Hawkes?
48
1 COMMISSIONER HAWKES: Have a question, Mr. Chairman.
2 CHAIRMAN DOUGLASS: Commissioner Riley yields to your
3 question.
4 COMMISSIONER HAWKES: When you say the major party
5 candidates, for instance, if you have a county that's
6 50/50 in their registration, the Republican candidate
7 would have to receive as many signatures as the Democratic
8 candidate. But if you had a county that maybe had
9 60 percent Democratic registration and 30 percent
10 Republican registration, the Republican candidate is going
11 to have to get half the signatures that the Democratic
12 candidate gets.
13 Obviously the Republican and the Democratic parties
14 are considered major parties because it's done by a
15 percentage of the number of registered voters in your
16 party. And I was wondering from your proposal if I'm one
17 of these minor party candidates, do I have to get the same
18 number of signatures as the largest party or that's
19 considered a major party or the smaller of the two parties
20 or does major party mean the party with the most
21 registered voters?
22 CHAIRMAN DOUGLASS: I'm not sure I've got the right
23 proposal. I don't see anything in here about getting --
24 COMMISSIONER RILEY: What the proposal is, is that
25 the requirements for a minor party cannot be any greater
49
1 than those for a major party. So, as I understand it and
2 as I intended it, if you, whatever your major party is,
3 whichever has the largest majority, Democrat or
4 Republican, whatever the requirements are for that party,
5 that the Independent candidates' requirements cannot be
6 any greater than that as far as percentage of registered
7 voters or dollars needed to file.
8 CHAIRMAN DOUGLASS: Commissioner Hawkes?
9 COMMISSIONER HAWKES: Would you accept an amendment
10 that clarified that it was the majority party? Whichever
11 was the -- if you were qualifying for a statewide race and
12 if the Democratic Party was the majority party, then you
13 would have to meet the same requirements for qualification
14 whether it be by signature or payment of fees as the
15 Democratic party candidate would?
16 COMMISSIONER RILEY: Yes, I would.
17 CHAIRMAN DOUGLASS: I have a question before you do
18 that. Wouldn't that create litigation, majority party and
19 then you could turn around and have something for a major
20 party, couldn't you, or somebody could argue, couldn't
21 they, Commissioner Hawkes?
22 COMMISSIONER HAWKES: Well, Mr. Chairman, my concern
23 was in reading this, I mean, for instance, I qualified by
24 signature one time in Citrus County as a Republican
25 candidate, I had to get 736 signatures, I guess it was.
50
1 If I was a Democratic candidate, I would have had to
2 get 912 or something. It was different because the
3 Democratic party was bigger than the Republican party and
4 I had to collect, I believe, 3 percent of the registered
5 voters in my county. It truly was unfair because if I was
6 an Independent candidate, I'd have to collect 3 percent of
7 the total registrations, which would be over twice as much
8 as every candidate. But from this, I don't know if I have
9 to collect what the republicans have or what the democrats
10 have.
11 CHAIRMAN DOUGLASS: All right. We don't have an
12 amendment on the table. We can't discuss that until there
13 is one. We'll proceed. If you have an amendment, put it
14 on the table. If not, we are on the proposal which does
15 not have that in it. Commissioner Corr, you rose.
16 COMMISSIONER CORR: Thank you, Mr. Chairman.
17 Commissioner Hawkes, we discussed this issue in the
18 committee on elections and our understanding in the
19 committee, if I'm right, I don't know if some of the other
20 folks are here, was that under your scenario, Commissioner
21 Hawkes, the minority candidate would not have to collect
22 more votes than you would have had as a Republican.
23 Because the language says there would be no greater than
24 the requirements of a major party candidate. So, it would
25 be the lower of the two, that's right.
51
1 CHAIRMAN DOUGLASS: Commissioner Zack? Commissioner
2 Barkdull?
3 COMMISSIONER BARKDULL: I'd like to make an
4 observation that, obviously, this is another matter that
5 is being and has been considered by the Legislature. I
6 understand we did hear comment about this at the public
7 hearings. But I'll tell you one thing, we are talking
8 about a lot of litigation on what is major and what is
9 majority. And I think this is an item. Certainly, I
10 don't think this provision is going to clear up what you
11 want. You ought to spell it out or leave it to the
12 Legislature. I think you ought to leave it to the
13 Legislature.
14 CHAIRMAN DOUGLASS: Anyone else? Commissioner
15 Connor?
16 COMMISSIONER CONNOR: I'd like to speak on behalf of
17 the proposal.
18 CHAIRMAN DOUGLASS: As it is without the amendment.
19 COMMISSIONER CONNOR: As it is. There is no
20 amendment as I understand now.
21 CHAIRMAN DOUGLASS: That's correct. Go ahead, you
22 can talk about it.
23 COMMISSIONER CONNOR: I'll address it as it comes up.
24 I've been heartened in the debates that have taken place
25 in this body that we've been operating on the basis of
52
1 first principles and not on the basis of political
2 partisanship, that's been a very gratifying experience for
3 me. I come from a party who extols the virtues of
4 competition. And I believe strongly in providing a basis
5 for competition in the political are arena. I believe
6 that the major parties have in large part contributed to
7 the political malaise that exists among the voters today
8 and that, in fact, they are not providing for the kind of
9 competition that will stir the pulse of voters.
10 And just to give you an example of some information
11 that's been furnished to me. In the 20 years between 1974
12 and 1994, the two major parties failed to offer competing
13 candidates for more than 49 percent of the 1320 state
14 House seats that were to be filled. During that same
15 period, they failed to provide competing candidates for
16 more than 30 percent of the U.S. House seats that were to
17 be filled during that interval of time. From '84 through
18 '94, the two major parties failed to offer competing
19 candidates for more than 42 percent for the state Senate
20 seats that were to be filled during that period of time.
21 This procedure that we have gone through has been a
22 wonderful civics lesson, I would submit to you, for all of
23 us. I had no idea of the inequity and unjust treatment
24 that minor parties were receiving in this state. They
25 have been subjected to hurdles that are unfair, unjust,
53
1 inequitable and that have the affect of disenfranchising
2 their participation in the process. And frankly, it's
3 with the intent to do so in order to preserve the hegemony
4 that now exists for the two major parties. I think that's
5 wrong. I think we have an opportunity to act on a
6 principle basis.
7 As I interpret the language of the proposal, the
8 effect of this proposal would be that no minor party could
9 be required to have a more burdensome requirement than the
10 smallest of the major parties. I think that's how it
11 would work, plain and simple. And if we have to have
12 litigation to straighten some of this out, so be it. A
13 few of us lawyers would complain about that.
14 Now, if there's a way and you think it's important to
15 clarify that, I don't object to clarifying that. But for
16 goodness sakes, we have seen the rights of people
17 preserved and adjusted through the litigation process.
18 And one that I'm not down on is trial lawyers. I am
19 thankful for the role that trial lawyers have played in
20 preserving the rights that we enjoy under our Constitution
21 and under the laws of this state.
22 But we have an opportunity to do something that the
23 Legislature never will, which is to provide access to the
24 ballot and provide a broader choice for electorate by
25 modifying our state Constitution in this fashion. Thank
54
1 you, Mr. Chairman.
2 CHAIRMAN DOUGLASS: Commissioner Evans-Jones?
3 COMMISSIONER EVANS-JONES: Thank you, Mr. Chairman.
4 I would like to speak in favor of this proposal too. And
5 I agree with Commissioner Connor, it will never get out of
6 the Legislature. And I would prefer this not have to be
7 in the Constitution. But I do think this is important and
8 all over the state, as you said, we kept hearing about the
9 minor parties have to get all this money plus all these
10 signatures and it makes it an impossibility for them to
11 get on the ballot.
12 I do have some concerns about the language. I'm not
13 real comfortable with that. I want to the vote for this,
14 but I want to be sure -- I mean, they certainly need to
15 have to get more than, say, three signatures, if they are
16 three libertarians or whatever. I know the intent, but
17 maybe the rules and drafting or somebody can come up --
18 maybe we do have an amendment but let's kind of get it
19 clear. Thank you.
20 CHAIRMAN DOUGLASS: Commissioner Nabors.
21 COMMISSIONER NABORS: Thank you. I'd like to speak
22 in favor of this proposal. We have got to keep in mind
23 that we are dealing with a constitutional amendment. What
24 may be a major party today, may be a minor party tomorrow.
25 As I read this language, what it says is, is that
55
1 regardless of what that point in time, whether you're a
2 minor or Independent candidate, the requirements for
3 ballot access are the same. And I don't have problems
4 with the language. If there are minor problems, it can be
5 dealt with in style and drafting.
6 We've got to remember we're dealing with a
7 constitutional provision; this is very appropriate. Our
8 democracy is based upon a competition of ideas. And if we
9 are going to have a true marketplace, we need to have
10 everybody have access to the ballots so their ideas can go
11 forward. I see no reason in 1997 to continue some
12 perception of a major party access. This requires
13 everybody to have equal access whether you're major today
14 or minor tomorrow. I speak in favor of it.
15 CHAIRMAN DOUGLASS: Commissioner -- are you offering
16 that as an amendment to make the language simply what you
17 said?
18 COMMISSIONER NABORS: Well, I think that's what the
19 language says.
20 CHAIRMAN DOUGLASS: No, it says more than that.
21 COMMISSIONER NABORS: Well, maybe I don't have the
22 amendment.
23 CHAIRMAN DOUGLASS: All right. Well, let's go ahead
24 with the amendment. It's on the table, Commissioner
25 Hawkes, and let's have his amendment -- he's presenting an
56
1 amendment at this point and we'll come back. You are on
2 the main motion?
3 COMMISSIONER KOGAN: No, I'm on the amendment.
4 CHAIRMAN DOUGLASS: Okay. I think he wants to speak
5 to the amendment and then I'll recognize you. It's his
6 amendment.
7 COMMISSIONER KOGAN: I wanted to propose to change
8 the wording which may make it somewhat I think less
9 confusing than the way it reads now.
10 CHAIRMAN DOUGLASS: Why don't you get with him and
11 see if you-all can work out some agreement? Commissioner
12 Barnett, I was glad to see you here after your eventful
13 trip.
14 COMMISSIONER BARNETT: Thank you. And I had an
15 excused absence, Mr. Chairman.
16 CHAIRMAN DOUGLASS: Yes, you did.
17 COMMISSIONER BARNETT: Just so you-all know, I was in
18 Miami last night. Just as a filibuster of time here for a
19 minute, Chief Justice asked me to do this, you know. It's
20 a filibuster while he gets the language done. I am in
21 favor of this. And I just wanted to remind those of you
22 who attended the public hearings, that if you did not know
23 anything about government in this state or political
24 parties in this state, you would have thought that the two
25 major parties in the state of Florida were the Green Party
57
1 and the Libertarian Party.
2 We did not see the other major parties there. And I
3 was very persuaded by the testimony that we heard at the
4 public hearings. In fact, I was educated on something I
5 knew little about and I was persuaded that we do need to
6 open up the marketplace of ideas to people from all
7 parties.
8 CHAIRMAN DOUGLASS: All right. Commissioner Brochin.
9 COMMISSIONER BROCHIN: I also rise in favor of the
10 proposal. And the reason I do is not in respect to
11 whether the Legislature shall or shall not put this in.
12 They probably won't, I think that's somewhat irrelevant.
13 What I think is pertinent is that this is a matter of
14 equal protection and equal protection should find its way
15 into our Constitution. I think it's a simple proposal. I
16 think it should remain simple although the language, I do
17 have some concerns, it probably needs to be tightened a
18 little bit.
19 But it's a simple proposal for equal protection for
20 anybody that wants to run in our state. And I think that
21 should find its way in our Constitution, particularly in
22 light of the diversity of this state and the various
23 amounts of candidates who want to run, they are -- we all
24 deserve to have that in our Constitution as a matter of
25 protection. So for those reasons, I am going to vote in
58
1 favor of this.
2 CHAIRMAN DOUGLASS: All right. They are still
3 drafting an amendment over here. Commissioner Alfonso?
4 COMMISSIONER ALFONSO: As long as they are drafting
5 an amendment, I quickly rise in favor of this proposal. I
6 do believe it is one of the more important proposals that
7 we will undertake. We heard it very clearly. I was not
8 at all aware of the limitations on the access to the
9 ballot and I'm just in agreement with all of the previous
10 presentations made here. And I think it is a very
11 important proposal and I support it.
12 CHAIRMAN DOUGLASS: Commissioner Smith.
13 COMMISSIONER SMITH: Thank you, Mr. Chairman. While
14 Commissioner Riley and myself were very aware of the
15 problems of today that a lot of our good friends here had
16 with the prior proposal with regard to the second primary,
17 I'm heartened to see such a broad base of support for this
18 equal protection issue. And I think this is one of the
19 most important things that we are going to go. And I
20 think 20 years from now as we watch the next Constitution
21 Revision Commission, we'll really be proud that we opened
22 up the process fairly. I don't have as much problem with
23 the language, because of the people who I respect that do,
24 whether in this form or in improved form from your
25 perspective, I look forward to supporting this.
59
1 CHAIRMAN DOUGLASS: Commissioner Marshall?
2 COMMISSIONER MARSHALL: Mr. Chairman, if we are still
3 filling time, I try to follow a practice of not rising to
4 speak if somebody else has already made my points, but
5 this is maybe kind of peripheral. After the hearing in
6 Palm Beach I think or Fort Lauderdale, the Libertarian,
7 the statewide Libertarian Party, would exist in this
8 meeting and they invited me to have dinner with them that
9 evening, for some reason, I don't know.
10 CHAIRMAN DOUGLASS: You are a liberatarian.
11 COMMISSIONER MARSHALL: I did not pick up the check.
12 (Laughter.)
13 COMMISSIONER MARSHALL: But I felt that those people,
14 first of all, they feel disenfranchised. They believed
15 they have been kept out of the process and I think they
16 can make that point pretty effectively. As Commissioner
17 Nabors said, a minor today may be a major one a couple of
18 years from now. I think switching roles of the parties
19 ought to be considered, at least the possibility of that.
20 They feel they are not treated fairly and I tried to
21 take the other side in an informal debate over dinner. I
22 found it hard to refute them. They do have a more
23 difficult time getting on the ballot. I have some
24 concerns about the language too. That is Commissioner
25 Connor says there are always lawyers to litigate these
60
1 matters. And I hope some of that can be cleared up in
2 drafting, but I think on balance, this measure deserves
3 our support and I speak in its favor.
4 CHAIRMAN DOUGLASS: All right. I think the amendment
5 is now drafted. Will you hand us a copy of it and we'll
6 read it? And it's introduced by Commissioner Hawkes; is
7 that correct? This is the amendment. All right. Would
8 you read the amendment?
9 READING CLERK: By Commissioner Hawkes, on Page 1,
10 Line 24, delete all said lines and insert, Greater than
11 the requirements of a candidate of a party having the
12 majority of registered voters at the time of qualifying.
13 CHAIRMAN DOUGLASS: Does that seem to meet the
14 objections that we have been hearing?
15 COMMISSIONER HAWKES: I think so, Mr. Chairman, and
16 the Chief Justice had a role in the drafting of this to
17 make sure that the language was tight and clear to the
18 judiciary --
19 CHAIRMAN DOUGLASS: No, no, that could be 61,
20 couldn't it, Commissioner Kogan?
21 COMMISSIONER KOGAN: It wouldn't be the first time.
22 (Laughter.)
23 COMMISSIONER HAWKES: But what this does,
24 Mr. Chairman, just to clarify, Commissioner Corr stood up
25 and said that it should be the party with the lower number
DIVISION OF ADMINISTRATIVE HEARINGS (904) 488-9675
61
1 of registration. This makes it clearly the party with the
2 greater number of registration. And I think the reason
3 for that is, at least you are showing that there's some
4 level of community support in order to get this name on
5 the ballot so the people can't unfairly clog up the ballot
6 without any community support at all. So this is the
7 party with the larger registration, the fees or the
8 signatures, whatever you decide to do will be the larger
9 party, whatever the party happens to be at the time.
10 CHAIRMAN DOUGLASS: Will they supply the qualifying
11 fees?
12 COMMISSIONER HAWKES: Well, qualifying fees are set
13 up in the office. And I think that Independent candidates
14 pay the same qualifying fees anyway because that was based
15 upon salary. I think where they had a difficult time was
16 collecting signatures for the office if they wanted to do
17 the alternative method of qualifying.
18 CHAIRMAN DOUGLASS: Okay. Commissioner Riley, you
19 were up.
20 COMMISSIONER RILEY: Yes, I would like to speak in
21 favor of the amendment.
22 CHAIRMAN DOUGLASS: Do you have a question, first?
23 COMMISSIONER MILLS: Yes.
24 CHAIRMAN DOUGLASS: He has a question of the
25 proponent of the amendment.
62
1 COMMISSIONER MILLS: This is just clarifying. I
2 intend to vote for this, and I think this is a good idea.
3 We've heard a lot about it. And one of the things that we
4 want our revision commission to have are some
5 understandable things and this is opening up the process
6 and this is I think responsive to what we heard. But
7 would this -- right now, would this continue to allow a
8 differentiation in the major party qualifications?
9 COMMISSIONER HAWKES: Yes, sir.
10 CHAIRMAN DOUGLASS: Commissioner Hawkes yields to
11 Commissioner Connor.
12 COMMISSIONER CONNOR: Commissioner Hawkes, this is
13 the great thing about being a lawyer. Commissioner Hawkes
14 said yes, I would say no. What I would suggest is, it
15 means everybody is going to have the same requirement.
16 Let's say you are in a county election, you have a
17 majority party, everybody else then is a minority party at
18 that point. But what that means is that there is -- there
19 are equal requirements for everyone with regard to the
20 financial qualifying fees and with regard to the
21 petitions, number of signatures that must be gathered, the
22 levels of playing field. The inequity now is that a
23 minority party has more stringent requirements than the
24 majority party and I think that's grossly unfair. This
25 then puts everybody on the same playing field as I
63
1 interpret the language.
2 CHAIRMAN DOUGLASS: Commissioner Brochin, you have a
3 question?
4 COMMISSIONER BROCHIN: I do.
5 CHAIRMAN DOUGLASS: Are you through, Commissioner
6 Mills, I didn't mean to cut you off on the question.
7 COMMISSIONER MILLS: No, sir, I would agree with
8 Commissioner Connor. I think that's what it does. I'm
9 just not sure that's what everybody --
10 CHAIRMAN DOUGLASS: Commissioner Brochin?
11 COMMISSIONER BROCHIN: Isn't it the intent of this
12 proposal that everyone be treated equally no matter
13 majority or minority and isn't there a simpler way to do
14 that as compared to making it relative to who the majority
15 party is, why is that relevant? I mean, isn't it more
16 appropriate from a constitutional point to just say that
17 there shall be no law that in essence favors one party
18 over the other in terms of qualification and eliminate
19 words like "major" and "minor" and "greater"?
20 CHAIRMAN DOUGLASS: That's why I asked Commissioner
21 Nabors, you know, he stated it pretty simply.
22 COMMISSIONER BROCHIN: I think what we are alluding
23 to is trouble with the language, I think that's what's
24 giving us a little bit of a problem although I think
25 conceptually everyone believes, not everyone, many of us
64
1 think equal protection should be preserved but the
2 comparison or the relative comparison to a minority or
3 majority party or even Independent candidate may make it a
4 little bit confusing and more litigious in the future.
5 CHAIRMAN DOUGLASS: Commissioner Ford-Coates, oh, you
6 want to answer that. That was addressed to you as a
7 question. Commissioner Hawkes?
8 COMMISSIONER HAWKES: Thank you, Mr. Chairman.
9 CHAIRMAN DOUGLASS: Commissioner Ford-Coates, you are
10 next.
11 COMMISSIONER HAWKES: Qualifying serves the purpose
12 primarily to make sure that the people who are on the
13 ballot are serious candidates and deserve the serious
14 consideration of the people who are going to vote. And
15 the argument in favor of requiring Independent candidates
16 to get 3 percent of the voting public was to ensure that
17 in fact they had some level of support in the community
18 and if you as a voter were going to take the time to
19 evaluate their qualifications and make decisions, you were
20 engaging in an activity that wasn't going to be a total
21 waste of time because this individual had some requisite
22 support.
23 It was not my intention to change the qualifications
24 for the two major parties. I think the qualifications for
25 this says no greater than the requirements. That means
65
1 they could be less. Under statute, if your party received
2 a certain number of votes in the last presidential
3 election, I think is the way it is tied, I'm not exactly
4 sure, then you would qualify under -- you could qualify, I
5 believe, under a different and a lower number of
6 signatures if you were qualifying by the alternative
7 method. And I would submit that that's appropriate
8 because then your party has shown that it has some support
9 and you have greater than 3 percent of the community.
10 So you are showing that not only do you have your
11 party's, a bare minimum level of your party's support, you
12 have a minimum -- your party has a minimum level of
13 support in the community or in the state. And so you are
14 fulfilling the purpose of qualifying to make sure that the
15 people are looking at legitimate candidates.
16 So I think, contrary to Commissioner Connor and
17 Commissioner Mills, that you could have lower requirements
18 for a party that received a certain percentage in the
19 electorate and I think that that's appropriate.
20 CHAIRMAN DOUGLASS: I had agreed to -- will you yield
21 to Commissioner Connor? Commissioner Connor.
22 COMMISSIONER CONNOR: I simply wanted to augment that
23 response to Commissioner Brochin's question. I think
24 Commissioner Hawkes is right in that the requirements may
25 be less than but they cannot be more than the requirements
66
1 of a candidate of the party having the majority of
2 registered voters at the time of qualifying. And that's
3 what the language provides. So what happens is that that
4 maximum, in terms of requirements, winds up being set by
5 the party that has the majority of voters at the time of
6 qualifying.
7 I would agree with you that by general law the
8 requirements could be less, but they cannot be more and
9 the inequity that we have now is that minor parties have
10 greater other requirements than the majority parties with
11 respect to the petition signature requirements. And so I
12 think that the proposed language levels the playing field
13 and says that nobody is going to have to live with more
14 burdensome requirements than are imposed on the party with
15 the majority of voters in the area at the time of
16 qualifying.
17 CHAIRMAN DOUGLASS: Commissioner Ford-Coates has been
18 up and you have a question or do you want to address the
19 issue?
20 COMMISSIONER BARKDULL: I have a question.
21 CHAIRMAN DOUGLASS: No, I mean Commissioner
22 Ford-Coates.
23 COMMISSIONER FORD-COATES: Both.
24 CHAIRMAN DOUGLASS: Well, do your question then.
25 You've been up. I recognize you. I'll come back to you,
67
1 Commissioner Barkdull.
2 COMMISSIONER FORD-COATES: What Commissioner Connor
3 has said, I think we need to separate the two concepts of
4 the Independents who now have a serious battle because
5 they do have to get 3 percent of all registered voters.
6 Their filing fees are the same as everyone else.
7 We then have the two majority parties wherein some
8 county one party has a majority of the registration, the
9 other has the minor party in that situation, whether they
10 be democrat or Republican, has the same kind of
11 requirements in that it is a 3 percent.
12 If we are saying, and I don't think this says this,
13 but what I heard you say is that there would be a level
14 playing field and everyone would have to do the same
15 thing. If you are a member of a minority party in
16 registration, to get 3 percent of all of the majority
17 party's number of signatures is very difficult because
18 your party might not even have that many people.
19 So I don't think it says that, as Commissioner Hawkes
20 said, that you were in a minority party when you got your
21 signatures, so you had to get less signatures than the
22 majority party. That's fair because your pool of
23 registered voters is smaller than the majority party. I
24 read this that no requirements for a minority party or an
25 Independent or a majority party just by reason of the
68
1 number of registered voters can be any greater than. And
2 my assumption is that the Legislature would keep that as
3 it is now on an even playing field.
4 So I guess that's my question, Commissioner Hawkes,
5 and originally I heard Commissioner Connor say everybody
6 would have to do the same thing which would not be fair in
7 the sense of the 3 percent but that it would be no more
8 than in the 3 percent than the top, that would be fair.
9 CHAIRMAN DOUGLASS: Just a moment. Commissioner
10 Connor. Your question was addressed to Commissioner
11 Connor or to somebody. Commissioner Connor --
12 COMMISSIONER FORD-COATES: Commissioner Connor or
13 Commissioner Hawkes, both.
14 COMMISSIONER CONNOR: You may recall,
15 Ms. Ford-Coates, that I affirmed what Commissioner Hawkes
16 said in that regard in that it cannot be greater than.
17 There is nothing that would prevent the Legislature from
18 imposing less stringent requirements, but under no
19 circumstances could it be greater than the requirements of
20 the party who had the majority of votes in the area under
21 consideration.
22 COMMISSIONER FORD-COATES: Would you agree that in a
23 situation if it were equal though, it would in effect do
24 the opposite and make it more difficult to gain those
25 signatures? I trust the Legislature not to do that.
69
1 COMMISSIONER CONNOR: And I think those are the kinds
2 of adjustments that are properly within the legislative
3 prerogative. What we have here though is a situation
4 where currently the requirements for minor parties and
5 Independents are greater than those. What we are saying
6 is, let's at least bring it down where everybody has the
7 same base requirement at the maximum. But if there are
8 policy considerations that warrant imposing less stringent
9 requirements, then that should happen. And I will suggest
10 to you that that is more likely to happen in the
11 Legislature under this scenario than will ever occur in
12 the future without it.
13 CHAIRMAN DOUGLASS: All right now, these are
14 questions and Commissioner Barkdull was next.
15 COMMISSIONER BARKDULL: Commissioner Connor, would
16 you explain to me how you would say at the time of
17 qualifying, and I mean this in the form of a friendly
18 question, because as I understand it, qualifying goes on
19 as a registered voter almost when you cast the ballot. So
20 I can see the litigation coming over what was the total
21 registered vote at the time.
22 COMMISSIONER CONNOR: Ms. Ford-Coates I think is
23 probably better qualified to address that than I. My
24 recollection is that there is a formal qualifying period
25 that is set up by state statute that --
70
1 COMMISSIONER BARKDULL: That's true. But my concern
2 is what was the registered voter's at the time of
3 qualifying.
4 COMMISSIONER CONNOR: I'll yield to Ms. Ford-Coates,
5 Mr. Chairman, if that's --
6 CHAIRMAN DOUGLASS: That's Commissioner Ford-Coates.
7 We are gender neutral here.
8 COMMISSIONER FORD-COATES: The statutes provide the
9 date on which the registration levels are set. As of a
10 certain date, these are the registered voters. You know
11 that what you get to the qualifying portion even though
12 qualifying is over a two-week period, you know long before
13 what the registration figures are, what percentage you
14 need, what the amounts are, you know, it must be set
15 probably a year in advance or at the last election or
16 something. It is provided in statute.
17 COMMISSIONER BARKDULL: That's my point. It is now
18 generally set at the last general election.
19 COMMISSIONER FORD-COATES: Fine.
20 COMMISSIONER BARKDULL: And I don't have any
21 objection to this. My only point is this is leaving it
22 very open-ended and doesn't tie it down to the last
23 general election which is what most statutes do. And this
24 is changing that. And I think that that's going to cause
25 some confusion.
71
1 CHAIRMAN DOUGLASS: Just a minute. I think we need
2 to direct this debate to another amendment that has been
3 put on the desk. If you would like to have it read it is
4 being introduced, proposed by Commissioners Rundle and
5 Brochin.
6 Okay. We have the Hawkes amendment pending so we
7 have got to, befor |
