A Pinellas campaign ad may have violated state law — and it might not matter

On the eve of key school board races in Pinellas and Hillsborough counties, a political action committee says it did nothing wrong in promoting “Republican” candidates in nonpartisan races. —

At issue is advertising for Erika Picard, a Pinellas County guidance counselor who is running for school board against incumbent Eileen Long. The Empower Parents Florida organization described Picard in a mailing as “Republican.”

Similar labels have appeared on other candidates’ materials. These include one for Hillsborough school board candidate Myosha Powell, distributed by the same political action committee.

Citing a Florida statute, Long filed a complaint with the Florida Elections Commission last week, saying such labels are against the law in nonpartisan races. Specifically, the law says that “a political advertisement of a candidate running for nonpartisan office may not state the candidate’s political party affiliation.”

Picard told the Tampa Bay Times that she did not approve the mailers. But she also said she was confident that the political organization cleared it with lawyers.

On Friday, Empower Parents Florida told the Times it is protected by a federal court decision that considers the Republican label to be free speech under the First Amendment.

The case they cited concerned Kells Hetherington, a candidate for the Escambia County School Board in 2018 and 2022. Hetherington had been fined $200 in the first election for telling voters he was a “lifelong Republican.”

Hetherington wanted to improve his chances in 2022 by giving voters a clear picture of his overall beliefs. So he filed a federal lawsuit challenging the state law with the help of the Institute for Free Speech, a Washington, D.C.-based organization that defends First Amendment rights.

A judge ruled in Hetherington’s favor and issued a permanent injunction, saying the statute is unconstitutional and the Florida Elections Commission cannot enforce it.

Long said she had not known about the Pensacola court case when she filed her complaint. She said before she did so, she took her concerns to the Pinellas Supervisor of Elections. A staff member there looked up the statute and confirmed that it says candidates in nonpartisan elections cannot identify themselves by party. The staffer also gave Long instructions in how to file the complaint.

In other words: The law remains on the books, and local elections officials see it when they research the statutes in response to calls from candidates.

But a court decision says the law cannot be enforced.

“To the layperson, that might seem confusing,” said Tim Vaccaro, executive director of the state elections commission. “But the court has said that is an unconstitutional statute. Even though it is on the books, we can’t enforce it.”

Nor should a candidate assume their local elections office will be aware of the court order, as “the supervisors’ office is not responsible for enforcing it,” said Mark Herron, a leading elections attorney. “To use a sports term, that is not in their wheelhouse to worry about.”

The state elections commission does, however, have information about the nonpartisan identification issue on its website.

As there are only two candidates in the contests between Picard and Long; and between Vaughn and Powell, they will be decided Tuesday.