Not over yet

But when the state’s Feb. 1 deadline came around, Hometown Democracy came up 15,567 signatures short of the 611,009 signatures that state law requires. They missed by just 2 percent. When you consider that the group turned in more than 814,000 petitions, and that some 200,000 signatures were rejected as invalid by local supervisors of elections, you can count on some disappointment – and a lawsuit. The fight isn’t over yet.

On June 11, Hometown Democracy co-author Lesley Blackner and other supporters filed a federal lawsuit against the state alleging, among other things, that the Feb. 1 deadline is unconstitutional. They cite the now-legendary incompetence of the Florida elections systems, in which the state’s 67 counties have different methods of determining which signatures are valid and which aren’t, even though state law dictates uniformity. In effect, the battle has now shifted from one about land use to one about vote manipulation and election rights.

“It’s Bush v. Gore all over again,” says Blackner.

It wasn’t just invalid signatures that did in Hometown Democracy. Two campaigns aligned with the Florida Chamber of Commerce worked exhaustively in opposition to the proposed amendment. Floridians for Smarter Growth pitched a counter-amendment that included limits on referenda with the intention, critics say, of confusing the electorate. Meanwhile, Save Our Constitution took advantage of a law passed in 2007 that enabled voters to revoke petitions they’d already signed. The group sent out materials warning of the alleged dangers of Hometown Democracy, along with revocation forms that were already filled out and only needed a signature, to the roster of signatories they obtained from the state’s Division of Elections.

Their efforts paid off: 13,182 petitioners revoked their petitions, bringing Hometown Democracy’s final tally down to 582,260, or nearly 30,000 away from its goal. In April, the First District Court of Appeals shot down the revocation law. That case is now headed to the Florida Supreme Court. But even if the appeals court ruling stands, that wouldn’t give Hometown Democracy enough signatures to make it on the ballot. Instead, the group needs to get some of the signatures that elections supervisors tossed out tossed back in.

According to Hometown Democracy deputy treasurer Barbara Herrin, the validation process itself was questionable. “Most of the counties used temporary staff,” she says. “There was pandemonium in the offices just because of everything that was going on in January. Many of them outsourced the work, or used temps, or used other staff that had not been trained in the proper way to validate a petition according to the state legal standards.”

In Orange County, the situation was even more dubious. Orange is the only county in the state that scans petitions prior to validation and only lists their status on a computer screen. Orange County Supervisor of Elections Bill Cowles says that process is supposed to streamline signature validation, but it also means there’s no paper trail – and the possibility of machine error.

“So the tens of thousands of rejects they had, when we head over to review the rejects, they cannot be observed because they’re all mixed together, unmarked as to what was a valid petition or a rejected petition,” Herrin says. “So there’s no way of tracking back from the scanned image to the original. That’s major.”

To Blackner, January was a perfect storm. She points to a memo that circulated among the county supervisors of elections Dec. 31 placing petition-counting low on the list of election priorities. In 2007 the Legislature passed a law that gave supervisors of elections 30 days to validate petitions, but didn’t specify that petition-gatherers were required to submit their petitions any time before the Feb. 1 deadline. In essence, elections offices were encouraged to focus primarily on preparing for the January primary and count petitions when they could.

To make matters worse, two weeks before the Feb. 1 deadline, Secretary of State Kurt Browning announced a “glitch” in the tallying system that resulted in some ballots being counted twice in the marriage amendment campaign that will appear on the November ballot. Add to that the fact that Floridians for Smarter Growth waited until Jan. 2 to drop off most of its 657,000 petitions – something Blackner says was intentionally done to clog the already overloaded pipeline – and Blackner suspects that she and the system were “trainwrecked.” (Enough of those signatures were invalid to make Floridians for Smarter Growth share Hometown Democracy’s fate.)

Floridians for Smarter Growth, however, says if Hometown Democracy is looking for someone to blame, they should look in the mirror. “If you look at the way they’ve conducted their campaign, they started getting petitions many, many months before the Feb. 1 deadline, meaning they were not submitting them to supervisors of elections for certifications,” says Ryan Houck, the group’s executive director. “And they were doing that so that they could avoid revocation. That was the strategic calculation that they made at that time. So if they want to blame anyone for the wheels getting jammed at the end, they should really blame themselves because they decided to take a shotgun approach and submit all of their petitions at the 11th hour.”

In other words, they made a tactical error. “Their rhetoric has shifted from ‘trust the people’ to ‘blame the people,’” he says.

As for the lawsuit, New York attorney Gary Sinawski – noted for his work with unorthodox ballot cases – says he’ll file a motion for preliminary injunction that would force the amendment onto the ballot, where it would need 60 percent of the vote to make it into the constitution. He says that the Feb. 1 petition deadline has been shot down in other states, and he expects the same here. He says the court can override the petition requirement.

Jennifer Krell Davis, communications director for the Florida Department of State – and former communications director for the Florida Chamber of Commerce – isn’t worried. The state is reviewing the complaint and argues that it is merely upholding the laws dictated by the Legislature.

For Blackner, that’s precisely the problem.

“What we’re tired of,” she says. “We’re tired of the Legislature’s war on the citizens’ initiative process. And we’re tired of citizens’ initiatives being treated like the ugly stepchildren of the elections process.”