Monday, March 03, 2008

If I Were A Supreme Court Justice or Law Clerk....

I would be making certain that I was reading every case ever decided in the past 50 years dealing with political party rules and the primary/caucus system, the assignment of delegates and rules regarding private behavior. Here is the reason why:

Let's assume that tomorrow does not resolve the nomination battle between Hillary Clinton and Barack Obama because the two split the results in Texas and Ohio as it appears possible that it could happen. That means that neither candidate will be in a position to claim a majority of delegates necessary to win the nomination and the superdelegate vote may be split to the point that their contributions may not be enough to decide the issue one way or another. So what will happen next is the apparently inevitable--court action.

The most likely instigator of these legal proceedings will be Hillary Clinton, who will sue to have the Michigan and Florida delegates seated and recognized. Since she was the only candidate on the ballot in Michigan, she would have a de facto win there despite the complete unfairness of it all to Obama and the other candidates who followed the party rules. While Obama was on the ballot in Florida (I think) neither candidate really campaigned there, although Clinton went in on the day of the Florida primary after the polls had largely closed.

Clinton was the clear winner in those states, but because of party rules, the Democratic National Committee said that the delegates in those states would not be recognized if apportioned according to the Michigan and Florida primaries. The voters in those states were disenfranchised by their state legislatures and state parties who acted in defiance of party rules. The Democratic party said that no state other than Iowa and New Hampshire could have their primaries before February 1. In the rush for "relevance," states ended up violating those rules.

So now we are in a position where Hillary Clinton, now desperate to win, will sue the DNC, whose rules she violated by remaining on the Michigan ballot, to have the DNC recognize her one-sided victories and thus hand her the nomination. Ironic isn't it. The disarray in the Democratic Party caused by the Clintons apparently has no bounds.

The questions that will be presented to the Court are interesting to say the least. Technically, the Democratic Party is a private entity that would, under normal circumstances, be allowed to make its own rules regarding the behavior of its subsidiaries. Those rules can, so long as they are not overtly discriminatory of protected classes, punish subsidiary organizations the don't follow the rules. When dealing with sanctions, can a party not recognize the delegates of a state that defied party rules? The question gets a little more complicated because primaries/caucuses are public events with a voting rights overtone. Will that activity and the voting rights of individuals trump the private nature of the rules of a private entity? What about the role of the state legislatures who may have approved the move to a date prior to a party's cut-off date? Does that legislative mandate over ride the party rules? Assuming the Court can resolve those questions, can the court force the the party to recognize a slate of delegates from the state? Can the Court leave it to the DNC to make that determination? If not, how do they choose given that for all intents and purposes one candidate followed party rules and didn't campaign in the dissident states and the other did, reaping the post hoc benefit of defying party rules?

What will be interesting is that in order to resolve the dispute, the Supreme Court may very well be called upon to hear a case in the summer, after the traditional close of the Court's term in June. Let's assume that a case is filed in the week or so after the end of the Pennsylvania primary in April. That means a trial at the district court level would have to be expedited, perhaps to late May or early June. An appeal would occur in early to mid-July, with an appeal to the Supreme Court in late July to August--all to determine not the presidency as Democrats have alleged in Bush v. Gore, but the nominee to the presidential race.

The irony is so thick you can't even cut it with a laser. Nearly 8 years after a "stealing" of the presidency by the Supreme Court, the Court will be asked by the very same political party that felt it was aggrieved by the Supreme Court to decide a case about that party's nominee for the presidency, not its candidate--its nominee.
The decision could leave a majority of Democratic voters angry at the Court and Hillary Clinton (assuming she prevails) for denying the majority of voters once again.

Another interesting question is, what will Hillary Clinton do if she loses at the Supreme Court?

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