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Lawsuit Over Kenny Leigh's Sham Write-in Candidacy Remains Pending in Florida Supreme Court After Melissa Nelson Defeats Angela Corey in State Attorney Primary

We have received several inquiries about the status of the lawsuit we brought with prominent local civil rights attorney Sam Jacobson, Scott v. Hogan, over the disenfranchisement of almost 440,000 registered non-republican voters in the local state attorney race. As of the this posting, the lawsuit remains pending in the Florida Supreme Court, which has not yet decided whether it will exercise its discretionary jurisdiction to hear the case. For those unfamiliar with the lawsuit, our firm, along with Bledsoe, Jacobson, Schmidt, Wright, & Sussman P.A., filed a lawsuit to enforce the Universal Primary Amendment in the local State Attorney race. This amendment is a provision of the Florida Constitution that requires primary elections to be open to all registered voters, regardless of party affiliation, where the winner of the primary will not face opposition in the general election. 

Shortly after Melissa Nelson announced her candidacy for state attorney, one of Corey's campaign managers filed papers for local divorce attorney, Kenny Leigh to run as write-in candidate in the general election. Leigh has never expressed a desire to serve in the office of state attorney and he even contributed to Corey's campaign. The lawsuit alleged that Leigh was actually a sham candidate who only filed to disenfranchise non-Republican voters from the election. This was perceived by the Corey campaign to increase her chances of victory against Nelson. The complaint asked the court to require the local supervisors of election to hold an open primary as well as to hold Leigh and Corey's campaign manager liable for the disenfranchisement of nearly non-Republican 440,000 voters who would otherwise be able to vote in the race.

The case has been heard in the Fourth Judicial Circuit, First District Court of Appeal, and a petition for discretionary review is currently pending in the Florida Supreme Court. Much of the resistance the lawsuit has met comes from a recent Florida Supreme Court decision, Brinkmann v. Francois, which held that write-in candidates constitute "opposition" within the meaning of the Universal Primary Amendment. However, Brinkmann did not address the issue of whether a sham candidate constitutes opposition.

While the judiciary has not taken action on this issue, in the end, the sham didn't work. During the August 30th primary Corey lost the election to Nelson by a margin of 40% of the vote. Leigh announced plans to withdraw his write-in candidacy in the general election the next day. While there is no longer a primary election at stake, the issues raised by this lawsuit still remain both important and pressing. For one, the practice of fielding write-in candidates to subvert the Universal Primary Amendment is becoming more widespread. The local public defender race between incumbent Matt Shirk and former Judge Charlie Cofer was also closed by the filing of write-in candidate, Roland Falcon. A recent Tampa Bay Times investigation revealed that there are at least 34 write-in candidacies filed in elections across the state. Many of these stretched credulity to the limit, such as the mother of an incumbent who filed as a write-in against her daughter and a high-school senior who filed as a write-in candidate in a race for a county commission seat.

Most importantly, despite its ultimate outcome, nearly 440,000 people were disenfranchised in this state attorney race. This figure includes 96% of black voters in the Fourth Judicial Circuit's electorate. Some commentators have compared the sham candidacy as a form of modern-day Jim Crow. Given the scale of disenfranchisement that the actions of Leigh and Corey's campaign caused, these comparisons are not entirely off-base. Our hope is that the Florida Supreme Court will decide to hear the case and close this glaring loophole in Florida's election laws, so voters across the state will not face the type of disenfranchisement that the 440,000 voters here underwent during the state attorney primary.

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Sheppard, White, Kachergus, & DeMaggio, P.A. Attorneys & Counselors at Law.
215 N. Washington Street
Jacksonville, FL 32202

Phone: 904-701-0589
Phone: 904-727-7191
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Regular office hours are 7:30 a.m. to 6:30 p.m.

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