CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 10/7/2023 1

Punishment for Early Florida Primaries 

DiMaio v. Democratic National Committee 

(Richard A. Lazzara, M.D. Fla. 8:07-cv-1552) 

and Nelson v. Dean (4:07-cv-427) and Ausman v. Browning 

(4:07-cv-519) (Robert L. Hinkle, N.D. Fla.) 

On November 20, 2007, Florida voters filed a state-court complaint 

challenging the state’s moving up the 2008 presidential primaries in 

violation of party rules. The case was removed to federal court on 

December 7, and a preliminary-injunction motion was filed a week 

later. On January 3, 2008, the district court denied the plaintiffs preliminary injunctive relief because the consequences of the early primaries were still uncertain. In related litigation, federal courts declined to interfere with either party rules or the state’s election calendar. 

Subject: Election dates. Topics: Primary election; party 

procedures; removal; case assignment. 

On November 20, 2007, six Florida voters filed in Leon County’s circuit court 

an action against Florida’s secretary of state challenging the state’s moving its 

presidential primary elections to January 29, 2008, despite possible sanctions 

by the major political parties, which could weaken the effectiveness of Florida 

voters.1

 Nine days later, the secretary removed the case to federal court in the 

Northern District of Florida.2

The court assigned the case to Judge Stephan P. Mickle, but five days later 

the case was reassigned to Judge Robert L. Hinkle because it was related to a 

case already pending before Judge Hinkle.3 To avoid an opportunity for parties 

to file several cases and then select which case to pursue based on the judge 

assigned to it, the district enforced a policy of assigning related cases to the 

judge assigned to the earliest filed case.4

Judge Hinkle’s earlier case was filed on October 4, and it sought to curtail 

the Democratic Party’s sanctions against Florida for holding an early primary 

1. Notice of Removal, Ausman v. Browning, No. 4:07-cv-519 (N.D. Fla. Dec. 7, 2007), D.E. 

1 [hereinafter Ausman Notice of Removal] (attaching the state-court complaint); see Michael 

C. Bender, Suit Seeks to Roll Back Florida’s Primary Date, Palm Beach Post, Nov. 21, 2007, at 

4A; Mary Ellen Klas, Lawsuit Seeks Later Florida Primary, Miami Herald, Nov. 21, 2007, at 

B5. 

2. Ausman Notice of Removal, supra note 1. 

3. Reassignment Order, Ausman, No. 4:07-cv-519 (N.D. Fla.Dec. 12, 2007), D.E. 5; see Notice of Similar Action, id. (Dec. 11, 2007), D.E. 3. 

Tim Reagan interviewed Judge Hinkle for this report by telephone on October 10, 2012. 

Judge Mickle died on January 26, 2021. Federal Judicial Center Biographical Directory of Article III Federal Judges, www.fjc.gov/history/judges. 

4. Interview with Hon. Robert L. Hinkle, Oct. 10, 2012. 
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election.5 In that action, Judge Hinkle granted the defendants summary judgment on December 5.6

The decision whether to adopt a schedule (at least if not wholly unreasonable) rests with the national party, not with a single state legislature or state 

party. The decision whether to seat delegates chosen outside the approved 

schedule also rests with the national party, not with the defiant state legislature or state party. . . . 

. . . . 

In the case at bar . . . , the national party has a First Amendment right to 

adopt delegate selection rules and to exclude delegates chosen in violation of 

those rules.7

On December 13, in the action against Florida challenging the primaryelection date, the plaintiffs filed a motion for a preliminary injunction, based 

on their state-court motion for a temporary injunction,8 and a motion to expedite consideration.9

 Judge Hinkle held a telephonic scheduling conference 

on December 19,10 after which he ordered completion of briefing by December 

28.11

At the end of a hearing on the injunction motion on January 3, 2008, Judge 

Hinkle denied the motion.12 After the January primaries, Judge Hinkle stayed 

the case until after the 2008 general election.13

The Democratic Party decided on May 31, 2008, that votes for delegates 

from Florida and Michigan would be halved because of the states’ holding 

their primary elections too early.14 Once Barack Obama had secured enough 

votes for the nomination, however, all delegates were seated with full votes.15

5. Complaint, Nelson v. Dean, No. 4:07-cv-427 (N.D. Fla. Oct. 4, 2007) (naming three voters as plaintiffs); Nelson v. Dean, 528 F. Supp. 2d 1271, 1275 (N.D. Fla. 2007); see Amended 

Complaint, Nelson, No. 4:07-cv-427 (N.D. Fla. Oct. 26, 2007), D.E. 5 (naming eight voters as 

plaintiffs); see also Lesley Clark & Beth Reinhard, Nelson, Hastings Sue Their Party, Miami 

Herald, Oct. 5, 2007, at B1; Abby Goodnough, Senator Suing Own Party Over Discord on Florida, N.Y. Times, Oct. 4, 2007, at A22; Larry Lipman, Nelson, Hastings Sue Over Primary, Palm 

Beach Post, Oct. 5, 2007, at 1A. 

6. Minutes, Nelson, No. 4:07-cv-427 (N.D. Fla. Dec. 5, 2007), D.E. 29; see Lloyd Dunkelberger, Judge Tosses Out Primary Lawsuit, Sarasota Herald Trib., Dec. 6, 2007, at 1; Mary Ellen 

Klas, Primary Date Suit Dismissed, Miami Herald, Dec. 6, 2007, at B3; Jennifer Liberto, Florida 

Democrats’ Suit Tossed, St. Petersburg Times, Dec. 6, 2007, at 4B. 

7. Nelson, 528 F. Supp. 2d at 1272, 1278. 

8. Preliminary-Injunction Motion, Ausman, No. 4:07-cv-519 (N.D. Fla. Dec. 13, 2007), 

D.E. 6 (attaching the state-court motion). 

9. Expedition Motion, id. (Dec. 13, 2007), D.E. 8. 

10. Minutes, id. (Dec. 19, 2007), D.E. 12. 

11. Order, id. (Dec. 20, 2007), D.E. 13. 

12. Order, id. (Jan. 8, 2008), D.E. 20; Minutes, id. (Jan. 3, 2008), D.E. 18. 

13. Order, id. (Mar. 10, 2008), D.E. 35. 

14. See Katharine Q. Seelye & Jeff Zeleny, Democrats Approve Deal on Michigan and Florida, N.Y. Times, June 1, 2008, at A1. 

15. See DiMaio v. Democratic Nat’l Comm., 555 F.3d 1343, 1345 (11th Cir. 2009); see also

Katharine Q. Seelye, Obama Asks Panel to Restore Votes, N.Y. Times, Aug. 4, 2008, at A12. 
Punishment for Early Florida Primaries 

Federal Judicial Center 10/7/2023 3

Middle District Action for Clarification 

A Floridian had filed a federal declaratory action in the Middle District of Florida on August 30, 2007, seeking judicial clarification of the effect of votes in 

Florida’s Democratic presidential primary election.16 Six days later, the plaintiff filed a motion for summary judgment: “a declaratory judgment determining whether the National party must accept and seat delegates elected by the 

State of Florida at its Presidential preference primary scheduled for January 

29, 2008, regardless of National party rules and decisions to the contrary.”17

Judge Richard A. Lazzara denied the motion as premature on September 5, 

especially because the defendant party had not yet been served.18 On October 

5, Judge Lazzara dismissed the case, concluding that “it is a matter of foregone 

conclusion that this Court is not the appropriate entity to decide whether the 

Florida delegation to the Convention should be seated.”19 On March 21, 2008, 

the court of appeals affirmed Judge Lazzara’s additional conclusion that the 

plaintiff lacked standing because he “never alleged that he actually voted, nor 

even so much as suggested that he intended to vote in the Florida Democratic 

Primary.”20

Unsuccessful Action for a New Election 

On April 7, 2008, a primary-election voter filed a federal complaint in the 

Northern District seeking a second Democratic presidential primary election 

in Florida to satisfy national party rules and avoid effective nullification of the 

January 29 Democratic election.21 On May 5, Florida’s secretary of state notified the court that this new case was related to the other two cases over which 

Judge Hinkle presided.22 The court transferred the case from the Pensacola 

Division to Judge Hinkle in the Tallahassee Division.23 On July 13, Judge Hinkle stayed this case as well until after the 2008 election.24 “[T]he national parties may or may not take action at their national conventions that would moot 

or otherwise affect the plaintiff’s claims as applicable to future elections. The 

16. Complaint, DiMaio v. Democratic Nat’l Comm., No. 8:07-cv-1552 (M.D. Fla. Aug. 30, 

2007), D.E. 1. 

17. Summary Judgment Motion, id. (Sept. 5, 2007), D.E. 4. 

18. Order, id. (Sept. 5, 2007), D.E. 5. 

On September 26, 2007, Judge Lazzara denied a renewed motion for summary judgment 

while the defendants’ motion to dismiss the action was pending. Order, id. (Sept. 26, 2007), 

D.E. 14. 

19. Opinion, id. (Oct. 5, 2007), D.E. 18. 

20. DiMaio v. Democratic Nat’l Comm., 520 F.3d 1299, 1302 (11th Cir. 2008). 

21. Complaint, McCorvey v. Browning, No. 3:08-cv-138 (N.D. Fla. Apr. 7, 2008), D.E. 1. 

22. Notice, id. (May 5, 2008), D.E. 12. 

23. Order, McCorvey v. Browning, No. 4:08-cv-218 (N.D. Fla. June 6, 2008), D.E. 23; Order, id. (May 9, 2008), D.E. 15; see Stipulation for Transfer, id. (May 5, 2008), D.E. 13. 

24. Opinion, id. (July 13, 2008), D.E. 24. 
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4 Federal Judicial Center 10/7/2023 

prudent course is to wait until after the 2008 election to see whether there remains a controversy calling for judicial resolution.”25 Following the general 

election, the plaintiff voluntarily dismissed the action.26

Middle District Actions to Seat and Count All Delegates 

The plaintiff in Judge Lazzara’s case filed another federal complaint in the 

Middle District’s Tampa courthouse on April 8, 2008, against the Democratic 

National Committee seeking an injunction requiring the party to seat and 

count all delegates from Florida.27 On April 15, Judge James S. Moody, Jr., 

transferred the case to Judge Lazzara.28 A pro se action seeking to ensure that 

primary voters’ votes had full effect, which had been filed on March 20 in the 

Jacksonville Division, was transferred to Judge Lazzara on May 15.29 At a May 

28 hearing, Judge Lazzara granted summary judgment to the party, relying in 

part on his resolution of the earlier declaratory action.30 The court of appeals 

dismissed an appeal as moot on January 30, 2009, after the presidential inauguration.31

Southern District Action to Seat and Count All Delegates 

Three delegates filed a federal complaint against the Democratic National 

Committee in the Southern District of Florida on May 22, 2008, seeking an 

injunction requiring the party to seat and count all delegates selected as a result of the January 29 primary election.32 Following the party’s decision to give 

the delegates votes,33 the plaintiffs voluntarily dismissed the case.34

25. Id. at 3. 

26. Order, id. (Nov. 11, 2008), D.E. 26. 

27. Complaint, DiMaio v. Democratic Nat’l Comm., No. 8:08-cv-672 (M.D. Fla. Apr. 8, 

2008), D.E. 1. 

28. Amended Order, id. (Apr. 17, 2008), D.E. 5 (correcting Judge Lazzara’s first name); 

Order, id. (Apr. 15, 2008), D.E. 4. 

29. Order, Bloom v. Democratic Nat’l Comm., No. 3:08-cv-284 (M.D. Fla. May 15, 2008), 

D.E. 14; Order, DiMaio, No. 8:08-cv-672 (M.D. Fla. May 8, 2008), D.E. 19; see Complaint, 

Bloom, No. 3:08-cv-284 (M.D. Fla. Mar. 20, 2008), D.E. 1. 

30. Order, DiMaio, No. 8:08-cv-672 (M.D. Fla. May 28, 2008), D.E. 24; Transcript at 54, 

id. (May 28, 2008, filed Aug. 12, 2008), D.E. 34 (“If there’s any resolution in this case, in my 

view, it lies in the political process, not here.”); Minutes, id. (May 28, 2008), D.E. 22. 

31. DiMaio v. Democratic Nat’l Comm., 555 F.3d 1343 (11th Cir. 2009). 

32. Complaint, Geller v. Democratic Nat’l Comm., No. 0:08-cv-60774 (S.D. Fla. May 22, 

2008), D.E. 1 [hereinafter Geller Complaint]; see Mary Ellen Klas & Breanne Gilpatrick, DNC 

Is Sued Over Voting, Miami Herald, May 23, 2008, at 1B. 

On June 6, 2008, after the party’s decision to give the delegates half votes, the plaintiff who 

pledged to support Barack Obama withdrew from the case, leaving as plaintiffs a delegate 

pledged to support Hillary Clinton and an unpledged super delegate. Docket Sheet, Geller, No. 

0:08-cv-60774 (S.D. Fla. May 22, 2008) (D.E. 5); Motion, id. (June 6, 2008), D.E. 4; see Geller

Complaint, supra note 32, at 2–4. 

33. See Notice, Geller, No. 0:08-cv-60774 (S.D. Fla. June 12, 2008), D.E. 7. 

34. Order, id. (Aug. 15, 2008), D.E. 12. 
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Federal Judicial Center 10/7/2023 5

Resolution of the Removed Case Against Florida 

On October 5, 2009, Judge Hinkle dismissed the 2007 removed action against 

Florida.35

The state statute setting the primary date remains in effect, but the national 

parties have not set the earliest date on which 2012 delegates can be selected. 

If there remains a conflict, it will be known in ample time to allow a federal 

court to address any issues that any person with standing may choose to present. 

. . . 

. . . Under the law of the circuit, an individual voter or candidate cannot 

challenge a state’s insistence that a party participate in a primary that the 

party itself chooses not to challenge.36

35. Order, Ausman v. Browning, No. 4:07-cv-519 (N.D. Fla. Oct. 5, 2009), D.E. 65. 

36. Id. at 3, 5.