Friday, March 07, 2008

Prof. Hasen on Democratic Party Litigation

Prof. Rick Hasen's piece in Slate talks about three legal scenarios that could be the litigation side of the Democratic nomination fight.

I talked about one scenario, a fight to have the Florida and Michigan delegates seated despite the fact that the DNC is denying the seating of those delegates. My post, at Watchblog, got quickly derailed into a bickering fight about the Supreme Court, but a couple of commenters noted that the idea is far fetched. Well, Prof. Hasen, an expert in election law, seems to agree about the possibility of a fight. While DNC officials, namely Chairman Howard Dean will work day and night to avoid the legal confrontation, it is far from an unlikely scenario that suit will be filed. However, I would look for the Courts to get out of the way as gracefully as they can, but there are some interesting problems.

First, as I noted,
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 that don't follow the rules. When dealing with internal sanctions, can a party not recognize the delegates of a state that defied party rules? But is the DNC truly a "private entity?" If not, what kind of entity is it? It is not a public institution? Assuming the DNC is still a private entity, 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? Are primaries/caucuses merely internal voting mechanisms choosing internal party designees? What about the states with open primaries (I don't know if Michgain or Florida have an open primary)? 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 national party rules? Does Michigan or Florida have the right to tell a national organization how to run its internal affairs? Does the fact that primaries are operated using state provided officials, facilities and instruments (the voting machines themselves) affect that private/public nature of the primaries? 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?
Now, of course, Florida and Michigan could play nice and help everyone by have a "do over" primary. But even that concept is likely to get challenged in court, probably by Obama, even as the two sides gear up for the primaries in those states. The problem with this solution is that the Florida and Michigan Democratic parties and the legislatures in that state will need to get on the ball to make it happen before the August Democratic National Convention.

Prof. Hasen also talks about the "Rush Limbaugh" effort.
Shut up, Rush Limbaugh! The talk-radio legend has been urging Republicans to vote in the Democratic primaries to help propel Clinton to victory. The idea is that the Republicans would have a better chance in November running against Clinton than against Obama. There is some evidence from recent exit polls that a number of Republicans took Limbaugh up on his suggestion.

A reader of my Election Law Blog asked me whether anything could be done to stop Limbaugh's comments, which have the potential to distort the outcome of the nomination process. The short answer is no. Much as many people would like Rush Limbaugh to be quiet, the First Amendment certainly bars any attempts to prevent him or anyone else from urging a vote for or against a candidate for virtually any reason. And it is not as though the Democrats are defenseless against this tactic. Thanks to a Supreme Court decision, Democrats can choose to close their primaries in the future so that only registered Democrats can vote in these contests.
Limbaugh, and other conservative talk show hosts have been relishing in the bruising and bloody battle between Clinton and Obama, feeling it can only be good for conservatives, the GOP and John McCain (in more or less that order). The problem with open primaries like the Ohio, it that people of other parties can vote in the Democratic primiary or Republican primary no matter what their affiliation or registration may be. Limbaugh and others have decided to take adavantage of that feature and cause havoc in the Democratic primary. Is if fair play? Sure, it is right there in the rules. While some purists may grouse about the inequity of have Republican voters choosing (or rather forcing a "tie") between Democratic candidates, one has to wonder, if the showdown was between Republican candidates, how much cross over voting would there be.

Unfortunately, our political and electoral system is not litigation proof, nor should it really be fully without litigation. There are cases where court intervention is not only proper but actually required to protect rights. But what probably needs to be done is not have candidates so ready to jump to the courts to solve their electoral disputes--all it does is question the legitimacy of the process and that is an injury we can't really afford.

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