Countdown 2008: ROAD TO THE WHITE HOUSE

Suit against Democrats dismissed
Floridian wanting state's delegates seated will try again


The Atlanta Journal-Constitution
Published on: 03/22/08

The 11th Circuit Court of Appeals on Friday dismissed a federal lawsuit against the Democratic National Committee over the party's decision to strip Florida of its delegates to the national convention.

But Florida voter Victor DiMaio, who filed the suit in August 2007, said the ruling includes good news for him.

The decision comes after a three-judge panel heard oral argument on the case in Atlanta on Monday. In it, the judges say DiMaio's case "raises a number of interesting and potentially significant questions concerning the impact of the Equal Protection Clause on an individual's right to vote in a primary election."

The panel ultimately agreed with a district court judge in Tampa who ruled DiMaio lacks standing to sue the DNC over its decision to punish Florida Democrats for holding its 2008 presidential primary earlier than the party allowed.

The judges, however, disagreed with District Court Judge Richard A. Lazzara's original ruling, which said DiMaio, besides not having standing to sue, had not shown that his complaint had any merit.

The appeals panel said DiMaio can amend his original complaint and try again. Both courts indicated DiMaio lacked standing because when the suit was filed he had not yet voted in a primary. Now that he has voted in the Jan. 29 Florida primary, DiMaio can try again.

"This is a very, very big win for us," DiMaio said Friday. "We felt the lower court erred. I think that means it could be rife for overturning."

DiMaio said his attorney is now preparing an amended complaint.

The DNC, not surprisingly, disagrees with DiMaio's analysis of the court's decision.

"As the Supreme Court has consistently recognized, national political parties have a constitutionally protected right to manage and conduct their own internal affairs, including the enforcement of delegate selection rules," the party said in a statement.

Carl Tobias, a professor at the University of Richmond School of Law and a constitutional expert, said DiMaio is free to amend his suit and try again, but "whether that will be successful or timely seems unclear at best, and I think unlikely."

For DiMaio to influence the race between Hillary Clinton and Barack Obama, the dispute will have to be settled before the national convention in late August, five months from now. It's taken him seven months to get this far.

"Even if you tried to expedite it, I can't imagine it would get back in time to do very much," Tobias said.

But, Tobias said, DiMaio could have a point.

"It may have some merit, but at this late date it would be very difficult," Tobias said.




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