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February 1, 2018
Judicial retirement age heads to the full CRC

Proposal to allow independents to vote in partisan primaries stymied

By Gary Blankenship
Senior Editor

A proposed constitutional amendment to raise the mandatory judicial retirement age from 70 to 75 is headed to the full Constitution Revision Commission.

Proposal 41, by CRC member and former Bar President Bill Schifino, passed the Ethics and Elections Committee 8-0 on January 12. It had earlier unanimously passed the Judicial Committee, which Schifino chairs. It has been placed on the calendar for the full commission, although it was not immediately clear when the commission would take it up.

Schifino fared less well with his other amendment considered by the Ethics and Elections Committee that day, Proposal 62. That would allow voters who register with no party affiliation to vote in partisan primaries.

Although it got strong support from several organizations and people testifying at the meeting, several committee members raised questions and the issue wound up being temporally postponed when it appeared it might be defeated.

Retirement Age
On Proposal 41, Schifino noted when the current judicial retirement age of 70 was set, the average lifespan was 69 years. Now it’s 80, he said, and people are generally healthier at an older age.

One change from the present language is that a judge’s or justice’s 75th birthday would be the mandatory retirement time. Currently, judges and justices may continue to serve when they reach 70 if they are more than halfway through their six-year terms. Schifino said that would prevent the current situation in which three Supreme Court justices who are reaching the mandatory retirement age may leave the bench on the same day if they all serve until the end of their terms next January.

“We took a good hard look at this. I think it makes good sense to keep experienced judges on the bench,” Schifino said.

He noted he has another proposal that requires 10 years’ experience as a lawyer before becoming a judge (currently the standard is five years for trial judges and 10 years for the appellate bench) and Schifino dubbed that and Proposal 41 as his “experience matters” initiatives. He added if both pass the CRC, he expects they will be presented as one amendment to voters.

In response to a question, Schifino said any judge scheduled to retire next January would not be affected by the amendment, which has a July 1, 2019, effective date. But he said any of those retiring judges would be free to seek a fresh appointment or election although they would again have to retire before serving a full six years.

No Party Affiliation
Proposal 62, Schifino said, would address the partial disenfranchisement of the fastest growing segment of Florida’s electorate, those who register with no party affiliation (NPA). In 1997-98, when the CRC last met, only 4 percent of the electorate identified as NPAs but now 27 percent, or 3.4 million voters, are NPAs. Florida is one of only nine states with a completely closed primary system,

The issue of NPAs being blocked from partisan primaries was raised at every public hearing the CRC held last fall, Schifino said, and many — if not most — elections are effectively decided in partisan primaries and that consequently disenfranchises independent voters.

“This is one issue you can’t escape. That number [of NPA voters] is going to grow. It’s going to be 28, it’s going to be 29, it’s going to be 30 percent,” he said, adding that millennials are the most likely to register as independents.

Schifino argued that opening the primaries would increase the state’s historically low primary voter turnouts, noting other states had seen a turnout rise after making the change.

He also said he was open to other alternatives to his proposal to allowing NPAs to pick which primary ballot they would use. He noted California has a single primary ballot with all candidates listed regardless of party affiliation or independent status. All voters use that ballot and the top two finishers — which can be two democrats, a republican, and an independent, or any other combination — appear on the general election ballot.

“This proposal, or something like it, I think would stand an extremely high chance of passing on the ballot,” Schifino said. “If we want to do something that is really impactful, is really going to impact lives, I think this is one of them.”

A variety of speakers from an independent voter to a lawyer representing corporations to the League of Women Voters supported the amendment.

They argued that polls showed 70 to 72 percent of Floridians support open primaries, that 84 percent of legislative races were effectively decided in primaries either because there was no general election opposition or the opposing party has little chance of winning, that the change would boost primary turnout, and that primary elections belong to voters who fund them with taxes and not the parties.

But committee members expressed reservations.

Commissioner Brecht Heuchan said Proposal 62 as drafted would give NPA voters more choice and leverage than partisan voters. They could first choose to be NPA while other voters choose a party, but then the independent voters would get a second choice in the primary of which partisan ballot to use — something denied to registered partisan voters.

“My view of it is . . . to pick the best candidate from the party, put the best party candidate forward and let those people duke it out in the end,” he said.

Commissioners Arthenia Joyner and Chris Smith, both former Democratic legislators, said the purpose of partisan primaries was for parties to put forward the candidates who best reflect the parties’ philosophy and Schifino’s proposal would dilute that.

“There is a general election where all the independents can vote,” Smith added. “I hesitate to say they are disenfranchised because at some point they get to vote on an office.”

Commissioner Rich Newsome suggested tabling the proposal rather than voting it down to give Schifino more time to seek a consensus. He added he favored the California style primary where the top two vote getters on an open ballot appear on the general election ballot.

He argued for further consideration because the idea has such strong support among voters, it would encourage more millennials to participate in elections, and the primary system needs to be overhauled but that will never be done by the Legislature, which has a vested interest in the current system.

“Let’s let this live to at least, perhaps, be considered another day,” Newsome said. “I believe there may be a solution that would garner enough support here.”

Committee Chair Hank Coxe, also a former Bar president, made an impassioned plea to push the issue and said it would be wrong to wait.

“We need to move forward and let everyone have the opportunity to vote,” he said, calling voting the nation’s most sacred right. “This isn’t a perfect solution, but it certainly improves the situation in the state of Florida. I don’t believe we have the gall to wait another 20 years [for the next CRC] to address this issue. That’s wrong for the people of this state. It’s wrong for 3.4 million people now.

“We have to do something in 2017-18, not 2037-38 because we’re so married to this political process in the state of Florida. It’s wrong.”

Schifino said he was willing to make substantial modifications, calling the initial proposal a “stab in the dark.”

[Revised: 12-13-2018]