TALLAHASSEE (CBSMiami/NSF) – A Hillsborough County judge who lost a re-election bid this year is challenging the constitutionality of a longstanding state practice of electing circuit judges in primary elections.

Circuit Judge Steven Scott Stephens filed the challenge late Monday afternoon — on the eve of the general election — at the Florida Supreme Court. The case seeks to prevent Secretary of State Laurel Lee from certifying the results of Stephens’ race, which would leave a vacancy that could be filled by Gov. Ron DeSantis.

More broadly, Stephens is seeking a ruling that could effectively force the Legislature to change a law that has led to judicial races being decided in primaries. Stephens contends that the law conflicts with part of the Florida Constitution that says general elections shall be held to “choose a successor to each elective state and county officer whose term will expire before the next general election.”

“The petitioner (Stephens) acknowledges that it would be impractical to order his name placed on the general election ballot at this late date,” his attorney, Daniel Schaps, wrote in the petition filed at the Supreme Court. “Similarly, the petitioner does not contend that the invalidity of the electoral process would result in a new term for petitioner. The point of the petition is that the constitutionally required process for selection of a successor was not followed, so no successor has been legally chosen. Petitioner submits the remedy is to invalidate the proposed election results, creating a vacancy in the 13th Judicial Circuit group 39 (the seat in Stephens’ race).”

The Supreme Court on Tuesday transferred the case to Hillsborough County circuit court, noting in an online docket that the “transfer of this case should not be construed as an adjudication or comment on the merits of the petition, nor as a determination that the transferee court has jurisdiction.”

Stephens was appointed as a judge in 2005 by then-Gov. Jeb Bush and was re-elected without opposition in 2008 and 2014. But he drew a challenger, Wendy Joy DePaul, this year and lost in the August primary. Stephens’ term will expire Jan. 3. The state Division of Elections website lists DePaul as “unopposed” in the general election.

The petition said the state law has been interpreted for at least 20 years to allow circuit-judge races to be decided in primary elections. If a candidate in a primary receives a majority of votes, that candidate is considered the winner.

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Four circuit-judge races statewide will be decided in Tuesday’s general election, after each of them had at least three candidates competing in primary elections, according to the Division of Elections website. Most circuit-judge races were uncontested, while others, like the Stephens race, were decided in head-to-head matchups in primaries.

Stephens’ petition argues that the state law “contradicts the text of the Constitution by providing for final determination of some contested judicial offices in the primary election, well before the general election, and designing the process so that a plurality of votes would never prevail.”

“The constitutional requirement that a judicial office be decided at a general election is more than a technicality raised by a disappointed office-seeker,” the petition said. “Judicial races are nonpartisan, and the main reason for primary elections is to decide who will be each party’s candidate in the general election. Persons of other party or no party affiliation have less incentive to vote in the primary. Persons of a party who has only an unopposed candidate for the party’s nomination will stay home on primary election day. And the turnout of voters is a fraction of the voters in the general election.”

(©2020 CBS Local Media. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed. The News Service of Florida’s Jim Saunders contributed to this report.)

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