15 February 2008

Michigan & Florida - Count 'em!

This is what happens when "trial lawyers" are your most important donor group.
(what also happens is you play politics with basic national security and don't renew FISA, Ms. Pelosi)

With Hillary falling in the polls, a delegate comeback looking increasingly unlikely, and Putin bashing your candidacy (restoring America's reputation, one tyrant at a time!), it appears as though the Clinton machine might have to resort to the nuclear option.

You might remember this option for its use during the 2000 and 2004 Presidential election. Remember those? In 2000 Gore and his team of lawyers demanded a recount in violation of Florida election rules (incidentally, the recount showed Bush won) while arguing against a recount in any of the close states Gore won.

In 2004, Democrats hoped to replay 2000 (with a different outcome, obviously) in Ohio. Kerry ended up losing by over 100,000 votes.

Now, with the New England Patriots of candidates, the inevitable, unbeatable, wife-of-Bill, on the ropes, it looks like she just might sick the dogs on her own party.

And we can't help but enjoy a bit of schadenfreude. Ah, schadenfreude. (and dramatic irony)

Michigan and Florida violated Democratic party rules by moving their primaries up. The DNC de-certified their elections and the candidates agreed not to campaign in either place--Edwards and Obama didn't even have their names on the ballot. Well, now we're hearing the same rhetoric we did in 2000 and 2004--"everyone's vote should count!"

Eventually, the Clinton's are going to want this one to be played out in court and Obama will be put in the uncomfortable position of having to argue in favor of election rules and against allowing "everyone's vote [to] count(!)."

And if you don't think that will tear up the Democratic party, well, you haven't paid any attention to the Clinton's scorched earth tactics. Hillary, whatever else anyone says about her, is a win-at-all-costs type of candidate--even against someone in her own party. You wont see any of the grace we've seen from Republican candidates. Nope, and it's going to be fantastic.

In case anyone wondered what might happen if Clinton did become president, you need look no further than the state of her campaign team. People are quitting. They're attacking each other. They're playing the blame game. Her campaign is in complete disarray. Where is Hillary, the voice of calm and reason?

No doubt our friends in the hope/change camp (aka Obama backers) are happy the way things have turned out. But what will you do if Hillary tries to steal the election in the courts? Meanwhile, our Democratic establishment friends (aka Clinton/'90's nostalgists) can't be pleased.

In any event, both groups better hope this thing gets settled quickly. And with less mess than appears will be the case. Else a Democrat in the White House will be a lot less inevitable than everyone thought.


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10 comments:

Spikers said...

I think that the DNC's decision to de-certify the election is blatant disenfranchisement. I see no reason why this issue should not be brought before the courts for resolution. Participation in the political process is the right of all adult citizens. The DNC was wrong to deny this right to two entire states.

It is also wrong to assume that donations by trial lawyers have any effect political outcomes. Trial lawyers have nothing to do with the House's decision to renew FISA. In fact, there is much economic literature on the subject. In fact, economists "strongly reject the notion that campaign contributions buy politician's votes. While it is not possible...to conclude that none of the congressmen ever sold their votes for donations,[]estimates demonstrate a remarkable degree of stability in voting patterns over time, thus lending support to past work emphasizing that it is costly for ideological politicians to alter their positions." (Stephen G. Bronars, Journal of Law and Economics, Do Campaign Donations Alter How a Politician Votes? Or , Do Donors Support Candidates Who Value the Same Things They Do?)

I suggest that people not take Republican talking points as doctrine. Instead, take some time to look to the results of empirical studies. I would bet that trial lawyers had nothing to do with the House's decision not to act on the expiring FISA bill.

Mike_D said...

Well put spikers.

Justin said...

Spikers- Can you tell us how primary elections are affected by law? Specifically, where do voter rights end and party decrees begin? Is this an issue of the rights of the state party versus the national party?

Spikers said...

The purpose of a primary law is to allow voters themselves to choose their candidates, to protect their rights in so doing, and to preserve the integrity of political parties.
A primary election was unknown at the common law.[FN1] The purpose of a primary law is to allow the voters themselves, as distinguished from the party organization or a committee thereof, to choose their candidates, and to put their rights in so doing under the protection of the law.[FN2] The purpose has also been held to be to preserve the integrity of political parties,[FN3] to secure to political parties prescribed procedures for the orderly conduct of their affairs,[FN4] and to streamline the number of candidates.[FN5] Election statutes invest the electorate at a primary election with the privilege and obligation not only of nominating a candidate they want to represent the party in the general election but also of rejecting a candidate they do not want.[FN6]

The power of a governmental unit to hold primary elections depends on constitutional[FN1] or statutory[FN2] provisions. Subject to constitutional limitations or restrictions,[FN3] it is within the power of the legislature, within reasonable limits, to regulate the nomination of candidates for office by the enactment of primary election laws,[FN4] particularly when expressly authorized or required by the constitution.[FN5] However, THE REGULATIONS MUST NOT DEPRIVE VOTERS OF THE FREE EXERCISE OF THE RIGHT OF SUFFRAGE, PREVENT FREE AND EQUAL ELECTIONS, OR OTHERWISE BE IN CONTRAVENTION OF RIGHTS SAFEGUARDED BY CONSTITUTIONAL PROVISIONS.[FN6]

On the other hand, Political parties, as political organizations, possess certain inherent powers which exist regardless of statute.[FN1] Thus, in the absence of legislative regulation, a political party possesses plenary powers as to the affairs of the party,[FN2] and is governed by its own usages and authorized to establish its own rules.[FN3] As long as it keeps within its legitimate sphere, a political party may do whatever is necessary or proper to maintain the integrity and advance the interests of the party.[FN4] A political party is, thus, entitled to enforce reasonable discipline among its ranks, so long as there is no violation of constitutional or federally protected rights,[FN5] and is free to choose those who will associate under its banner, and to choose not to associate with a person whose position does not comport with the thoughts and views of the party's members.[FN6] A political party is further entitled to function free from unwarranted interference with, or intrusions into, its affairs.[FN7] Accordingly, rules and regulations adopted by the party pursuant to statutory authority, together with general policy, must be obeyed by party members and is enforceable by the courts.[FN8]

In the absence of statutory authority, the courts have no power to interfere with political party organizations in matters involving party government and discipline, and are not inclined to assume jurisdiction of controversies involving questions as to party policies, party methods in nominating candidates, and constitution, powers, and proceedings of committees.
Generally, the courts may undertake supervision of political party matters to the extent that jurisdiction is conferred by statute or that the subject is regulated by statute,[FN1] provided the action is brought by a person having the requisite status to maintain the proceeding,[FN2] on pleadings stating a cause of action for judicial relief.[FN3] Except in such circumstances, however, the courts have no authority to interfere, in any way, with political organizations[FN4] and, ordinarily, will not intervene in intra-party disputes, but leave their settlement to methods used and adopted by the political party.[FN5] Thus, the courts will not interfere with internal matters of political parties,[FN6] unless the challenged action infringes on a specific constitutional or statutory right.[FN7] Valid rules of a state, county, or city committee of a political party will, however, be enforced by a court.[FN8]
In the absence of fraud, overreaching, or direct violation of a constitution, statutes, or by-laws, or deprivation of the right to vote of members, a court generally will not interfere with an election of a political party organization.[FN9] Since elections belong to the political branch of the government,[FN10] the courts will not be astute in seeking to find a ground for interference, but will seek, rather, to maintain the integrity and independence of the several departments of the government by leaving questions as to party policy, the regularity of conventions, the nomination of candidates, and the constitution, powers, and proceedings of committees, to be determined by the tribunals of the party.

In sum, there are arguments to be made on both sides. A court will likely have to hear arguments, and decide whether the disciplinary action violated statutes, constitutional rights, or denied party members the right to vote. I tend to think the disciplinary action violated rights and deprived those in Michigan and Florida of any meaningful right to vote. The DNC will argue that it is a reasonable disciplinary action and that courts have no jurisdiction over intra-party matters. It will be interesting to see what happens

Justin said...

My reading of your post and others leads me to believe parties have pretty wide latitude under the law. I guess I could have assumed this given Louisiana's weird structure and the variation from state to state. Couldn't the Dems just assign 1 delegate to each state, so technically the voters were represented? It's not like voters are represented equally anyway.

dmz said...

Thanks spikers for the info. I think Justin might be right about assigning one delegate per state. What could Hillary argue then?

Jen said...

Okay, spikers, then why would trial lawyers donate any money to dems if not to influence their vote? Where's the incentive?

I think trial lawyers see class action lawsuits against telecom companies as potentially lucrative and are lobbying as hard as they can to keep that possibility open.

Spikers said...

They probably will not even have to do that. There has already been a preliminary Federal Court decision regarding the DNC's decision in Florida. The case was BILL NELSON et al., Plaintiffs, v. HOWARD DEAN et al., Defendants.

This is the gist of the litigation.

PROCEDURAL POSTURE: Plaintiffs, three United States congressmen and several Florida voters, sued defendants, the Democratic National Committee (DNC), its chair, and the Florida Secretary of State, alleging that sanctions if Florida's presidential primary elections were held early would violate Equal Protection, due process, and 42 U.S.C.S. § 1973. Plaintiffs, the DNC, and its chair filed cross-motions for summary judgment. The Secretary moved to dismiss.

OVERVIEW: Adopting a schedule (at least if not wholly unreasonable), and deciding to exclude delegates chosen outside the approved schedule, rested with the DNC, not the state or state party. The state had nothing to do with the rules. Even if there was "state action," the DNC had a First Amendment right to adopt the schedule and exclude delegates chosen in violation of those rules. Allowing one state to countermand the DNC's policies would be intolerable. The desire to hold an earlier vote to give Florida a higher profile compared to other states was not compelling. The DNC could exclude a state's entire delegation for failure to comply with the rules; plaintiffs had no right to compel the DNC to seat nonconforming delegates. The DNC held hearings before voting to enforce the rules and to exclude Florida's entire delegation; procedural due process, if it applied, required nothing more. 42 U.S.C.S. § 1973 was not violated, even if it applied. Nothing suggested that the approved schedule or the threatened exclusion was intended to have, or in fact had, any adverse effect on any race or minority group. For lack of any challenge to the Secretary's actions, the complaint was dismissed as to him.

OUTCOME: The court entered summary judgment in favor of the DNC and its chair. Plaintiffs' motion for summary judgment against the DNC and its chair was denied. The Florida Secretary of State's motion to dismiss was granted, but plaintiffs could amend the complaint as against the Secretary.

These are the rules the DNC adopted and the District Court judge upheld: "The rules as adopted on that date include a four-tiered enforcement mechanism. First, a state party selecting delegates in violation of the schedule (or in violation of certain other delegate selection rules not involved here) loses 50% of its pledged delegates, and certain of the state's unpledged delegates also lose their votes. Second, the Rules and Bylaws Committee has authority to impose additional sanctions, including further delegate reductions (for a total reduction of up to 100% of the state's delegates). Third, any presidential candidate who campaigns in a state that violates the schedule is not entitled to any pledged delegates from the state. But fourth, the Rules and Bylaws Committee may determine to impose no sanctions if it determines, based on clear and convincing evidence, that the state party, leaders, and elected officials took all steps and acted in good faith to achieve legislative changes [*7] to bring the state into compliance."

Following are parts of the published opinion:


State Action

HN1Go to the description of this Headnote.The Fourteenth Amendment's equal protection and due process clauses-the provisions invoked by plaintiffs here-of course apply [*14] only to "state action," that is, to acts that can be attributed in a relevant manner to a state or its political subdivisions. HN2Go to the description of this Headnote.Section 2 of the Voting Rights Act applies to voting qualifications, prerequisites, standards, practices, and procedures "imposed or applied by any State or political subdivision." 42 U.S.C. § 1973(a).

Plaintiffs say the case at bar involves state action. In one sense that is plainly correct. It was the State of Florida that adopted the January 29 primary date, and it is the State of Florida that will conduct the primary. But it is also true, as the DNC and Dr. Dean insist, that the state had nothing to do with the adoption of the DNC delegate selection rules or the decision not to seat delegates chosen in violation of those rules. Indeed, the DNC has vigorously resisted the state's rescheduling of the primary and the state party's announced intention to use the primary results as a basis for selecting delegates. In that sense the DNC's decisions have been the very antithesis of state action.

State action is a concept whose outer limits are less than clear. The defense suggestion that any part of the delegate selection process conducted without direct state involvement [*15] is not state action proves too much. Many years ago, when parties ran white-only primaries without direct state involvement, the Supreme Court held them unconstitutional, rejecting the assertion that the primaries involved no state action. See Terry v. Adams, 345 U.S. 461, 73 S. Ct. 809, 97 L. Ed. 1152 (1953); see also Smith v. Allwright, 321 U.S. 649, 64 S. Ct. 757, 88 L. Ed. 987 (1944); Nixon v. Condon, 286 U.S. 73, 52 S. Ct. 484, 76 L. Ed. 984 (1932).

Some courts have suggested more recently that these decisions should be limited to their context-white primaries. Thus, for example, the Eleventh Circuit has said:

In the earlier fifteenth amendment cases, involving white-only primaries or other disenfranchisement of blacks, the courts freely found the conduct of political parties and groups to constitute state action. But recently, courts have hesitated to find state action when, as in this case, racial discrimination is not involved.

Wymbs v. Republican State Executive Comm., 719 F.2d 1072 (11th Cir. 1983) (footnote omitted) (citing Cousins v. Wigoda, 419 U.S. 477, 483 n.4, 95 S. Ct. 541, 42 L. Ed. 2d 595 (1975); O'Brien v. Brown, 409 U.S. 1, 4, 92 S. Ct. 2718, 34 L. Ed. 2d 1 & n.1, 409 U.S. 1, 92 S. Ct. 2718, 34 L. Ed. 2d 1 (1972); [*16] and Ripon Soc'y, Inc. v. Nat'l Republican Party, 173 U.S. App. D.C. 350, 525 F.2d 567, 574-76 (D.C. Cir. 1975)).

That explanation, however, is less than satisfactory. Overt racial discrimination in elections is especially repugnant, but one does not ordinarily assess the repugnancy of the underlying conduct to determine whether it constitutes state action. Instead, one ordinarily assesses whether the conduct constitutes state action before addressing the substantive issues.

Perhaps the white primary cases should be distinguished based on the implicit state approval of the explicitly-racist machinations the party pursued. Or perhaps the cases should be seen simply as an instance of hard cases making bad law (or, perhaps more accurately, seemingly easy cases making law that will not be followed in less compelling circumstances). Or perhaps one could conclude that the Fifteenth Amendment-with its specific focus on racial discrimination in voting-has a broader state action sweep than the Fourteenth. See Note, The Strange Career of "State Action" under the Fifteenth Amendment, 74 Yale L.J. 1448 (1965). But the white primary cases at least give some reason to question whether the state action concept is as narrow [*17] as the DNC and Dr. Dean would have it.

The issue need not be decided in the case at bar. This is so because, as set forth ahead, defendants would be entitled to prevail even if it were held that the DNC delegate selection rules and the decision to exclude Florida delegates were sufficiently entwined with state-run primaries to constitute state action within the meaning of the Fourteenth Amendment.

IV

Substantive Constitutional Claims

The Constitution makes no mention of political parties, but they have a unique and protected stature in our constitutional system. HN3Go to the description of this Headnote.The First Amendment right to freedom of association extends to parties and protects their internal affairs from undue government interference. Thus a political party ordinarily may decide for itself how delegates to its national convention will be chosen, and the party ordinarily need not comply with state laws purporting to restrict its options. The United States Supreme Court has repeatedly so held.

Thus, for example, in Cousins v. Wigoda, 419 U.S. 477, 95 S. Ct. 541, 42 L. Ed. 2d 595 (1975), the national Democratic Party delegate selection rules conflicted with Illinois law, including on open access issues. An Illinois court [*18] entered an injunction that prohibited the delegates who were selected in violation of Illinois law-that is, in compliance with the party rules-from participating in the convention. In affirming the injunction, an Illinois appellate court explicitly ruled that state law trumped the delegate selection rules.

The United States Supreme Court emphatically reversed. The Court said that HN4Go to the description of this Headnote.a national party and its adherents have a constitutionally protected right of association, that the right extends to the delegate selection process, and that a state may abridge the right only based on a compelling interest. The Court rejected the state's claim that its laws were essential to protecting its citizens' voting rights: "Illinois' interest in protecting the integrity of its electoral process cannot be deemed compelling in the context of the selection of delegates to the National Party Convention." 419 U.S. at 491. The Court said that allowing each of the 50 states to establish the qualifications of its delegates without regard to party policy would be "an obviously intolerable result." 419 U.S. at 490 (quoting Wigoda v. Cousins, 342 F. Supp. 82, 86 (N.D. Ill. 1972)).

In the case at bar, as in Cousins, [*19] the national party has a First Amendment right to adopt delegate selection rules and to exclude delegates chosen in violation of those rules. Here, as in Cousins, the state's interest in its electoral process "cannot be deemed compelling in the context of the selection of delegates to the National Party Convention." 419 U.S. at 491. And here, as in Cousins, allowing an individual state to countermand the national party's delegate selection policies would be "an obviously intolerable result." 419 U.S. at 490.

Indeed, the national party's position is even stronger in the case at bar than in Cousins. There the Illinois legislature adopted laws intended to open the delegate selection process. That was a substantive difference in the treatment of Illinois voters, and standing alone it presumably would have had little if any adverse effect on the national party or other states. In the case at bar, in contrast, the Florida legislature sought not to establish a more open process or to bring about any substantive change in delegate selection; the legislature sought simply to advance the date of the vote in order to give Florida a higher profile in comparison to other states. Florida's interest [*20] in a different primary date is less compelling, and the potential adverse effect on the national party and other states greater, than the corresponding interests in Cousins. In short, Cousins is fatal to plaintiffs' position in the case at bar.

The Supreme Court addressed another conflict between state law and national Democratic Party delegate selection rules in Democratic Party of the United States v. Wisconsin ex rel. La Follette, 450 U.S. 107, 101 S. Ct. 1010, 67 L. Ed. 2d 82 (1981). Under Wisconsin's "open primary" law, a voter could participate in a party primary without registering as a party member or otherwise publicly declaring a party preference. Wisconsin law further required delegates to a national convention to be pledged to vote in accordance with the primary results. The national Democratic Party's rules, however, provided that only voters who publicly declared their preference for the Democratic Party could participate in primaries or caucuses that were part of the delegate selection process. The state attorney general brought an original action in the Wisconsin Supreme Court against the national party and the DNC asserting the primacy of state law over the delegate [*21] selection rules. The Wisconsin court entered a declaratory judgment in the state's favor and said the national convention was required to seat the Wisconsin delegation even though selected in violation of the party's rules.

Again the United States Supreme Court emphatically reversed, reiterating its holding from Cousins that HN5Go to the description of this Headnote.a national party's delegate selection rules are protected by the First Amendment right to freedom of association and thus can be overridden only based on a compelling interest. Indeed, the Court said that in Cousins, "all nine Justices agreed that a State could not constitutionally compel a national political convention to seat delegates against its will." La Follette, 450 U.S. at 126 n.31. The Court said that Wisconsin's proclaimed interest in conducting an open primary did not extend to the separate question of whether the national convention was required to seat delegates pledged to vote on the basis of the primary results. On that issue, the party's rules took priority over the state's laws.

In the case at bar, as in La Follette, the state seeks to conduct a primary that does not comply with the national party's delegate selection rules. Here, as there, the party [*22] intends to exclude delegates selected and pledged to vote at the convention on the basis of the nonconforming primary. Here, as there, HN6Go to the description of this Headnote.the state cannot "constitutionally compel a national political convention to seat delegates against its will." La Follette, 450 U.S. at 126 n.31. La Follette, like Cousins, is fatal to plaintiffs' position.

Other cases-in the Supreme Court, the Eleventh Circuit, and other circuits-have reached similar results. See, e.g., O'Brien v. Brown, 409 U.S. 1, 92 S. Ct. 2718, 34 L. Ed. 2d 1 (1972) (staying injunction requiring Democratic convention to seat California delegation selected in winner-take-all primary as mandated by state law); Wymbs v. Republican State Executive Comm., 719 F.2d 1072 (11th Cir. 1983) (noting a party's First Amendment right to control its own delegate selection process and reversing-on grounds of justiciability-an injunction requiring the Republican party to select Florida delegates based on a one-Republican-one-vote principle); Bachur v. Democratic Nat'l Party, 836 F.2d 837 (4th Cir. 1987) (rejecting challenge to party's gender allocation rule for delegates); Ripon Soc., Inc. v. Nat'l Republican Party, 173 U.S. App. D.C. 350, 525 F.2d 567 (D.C. Cir. 1975) [*23] (rejecting one-person-one-vote challenge to party's delegate allocation formula).

These cases are controlling here notwithstanding three contrary assertions by plaintiffs.

First, plaintiffs say these cases involve core associational rights that are somehow more important than the rights at issue in the case at bar. Thus, plaintiffs suggest, the Democratic Party's decision not to associate with delegates selected and pledged to vote at the convention based in part on votes cast in a Democratic primary by Republicans or other nonDemocrats-the issue in La Follette-is more important than choosing not to associate with delegates selected and pledged to vote at the convention based on primary votes of Democrats that were simply cast a week too soon. The argument does not explain Cousins (or O'Brien or Wymbs or Ripon), in which the issue was the method by which admittedly qualified party members would select the state's delegates. And more importantly, HN7Go to the description of this Headnote.the constitutional right to freedom of association has never been conditioned on a legislature's determination of whether the right is being exercised wisely or unwisely. To the contrary, the whole point of the right of association is that the [*24] holder of the right may choose to associate, or not to associate, with whom the holder pleases, for reasons the holder deems sufficient. Thus the holder of the right-not a state legislature-is entitled to rank the holder's priorities and make the relevant associational choices. This was the principle at issue in La Follette (and Cousins and O'Brien and Wymbs and Bachur and Ripon), and it is the principle at issue here. Moreover, to the extent it matters, the right to associate (or not to associate) with proposed national political convention delegates is very near the First Amendment association right's core.

Second, plaintiffs say the DNC has no compelling interest that would support excluding delegates chosen in the January 29 Florida primary. But in trying to place the compelling interest burden on the DNC, plaintiffs have the governing standard exactly backwards. As the Supreme Court squarely held in Cousins and La Follette, HN8Go to the description of this Headnote.it is the state that must have a compelling interest in order to override the party's First Amendment right to seat delegates of its choice. The party need not have a compelling interest in its rules.

Moreover, the DNC's interests in establishing a schedule for [*25] primaries and caucuses, and doing so well in advance, are compelling. The length of the primary and caucus season makes a substantive difference. Whether the primary and caucus season should start incrementally-first in smaller states that allow more personal and less expensive campaigning and only later in larger states where campaigning requires greater media buys-makes a substantive difference. Whether the rules are set well in advance (as the DNC rules were) or can be altered late in the process by individual states (as Florida seeks to do) makes a substantive difference. And whether there is a single schedule with which all states must comply, or each state is free to make and alter the schedule for its own selfish reasons, makes a substantive difference.

Plaintiffs have offered not a single argument-and none comes to mind-in support of the notion that there can be no national schedule. Plaintiffs have offered not a single argument-and none comes to mind-in support of the notion that each state must be free to do as it pleases. HN9Go to the description of this Headnote.A national party has a compelling interest in setting a schedule and requiring compliance. And the party has a First Amendment right to exclude delegates [*26] selected in derogation of the schedule.

The third way in which plaintiffs attempt to deal with the principles established by the many cases discussed above is this. Plaintiffs say that even if the DNC had the right to set the schedule and the Florida legislature had no right to mandate a change, the DNC's proposed sanction-excluding all Florida delegates-is too harsh. Plaintiffs say that Florida's Democratic voters are being disenfranchised. The decisive answer is that HN10Go to the description of this Headnote.the decision whether to exclude nonconforming delegates rests with the party, not with the Florida legislature or plaintiffs or this court. This is the essence of the First Amendment right of association recognized in Cousins and La Follette and O'Brien and Wymbs and Bachur and Ripon. Indeed, the square import of La Follette was that the Democratic Party could properly exclude a state's entire delegation for failure to comply with party rules. That is what the DNC proposes to do here.

Moreover, the argument that this sanction is too harsh seems to presuppose the existence of some lesser sanction or other approach that might bring about compliance. Pressed on the issue at oral argument, plaintiffs were unable to suggest [*27] any alternative sanction or other approach that might accomplish that result. Indeed, even the sanction of excluding all delegates has proved insufficient. First Florida and now, following Florida's lead, Michigan have refused to abide the schedule, knowing full well the DNC's announced intention to exclude all of the state's delegates. The DNC's assertion that it needed to take decisive action "lest the nominating process descend into chaos, with each state free to leapfrog other states in a never-ending cycle," McNamara declaration (document 7-2) at 20, hardly seems exaggerated. With respect to the schedule-perhaps even more than on other issues-the Supreme Court had it right when it labeled an every-state-for-itself approach "an obviously intolerable result." Cousins, 419 U.S. at 490.

In sum, the DNC had the right to establish a schedule for primaries and caucuses used in the selection of delegates to its national convention. And the DNC has a First Amendment right of association to exclude delegates not chosen in compliance with the schedule.

This does not mean, of course, that HN11Go to the description of this Headnote.a party can do whatever it wishes with respect to delegate selection in general or the schedule in particular. [*28] The white primary cases make clear that there are at least some limits with respect to delegate selection. I assume without deciding that there are limits on a party's scheduling discretion. But the discretion is surely broad-at least broad enough to cover any scheduling decision that is not wholly unreasonable. The DNC's schedule easily passes muster. Neither the State of Florida nor the Florida Democratic Party have a right to override the schedule. And plaintiffs have no right to compel the DNC to seat nonconforming delegates.

V

Procedural Due Process

Plaintiffs assert that the DNC denied procedural due process in the adoption of its rules or the imposition of sanctions for Florida's noncompliance. But even if the DNC's decisions could be deemed state action, they easily would survive procedural due process scrutiny.

HN12Go to the description of this Headnote.In adopting provisions of general applicability, legislative bodies must not deny equal protection or substantive due process, but legislative bodies ordinarily need not afford procedural due process. Thus Congress or a state legislature need not hold hearings prior to passing laws of general applicability, and they certainly need not provide notice and an opportunity to [*29] be heard to everyone who might be affected by a proposed law. The DNC plainly was not constitutionally required to provide notice to the Florida legislature or Florida Democratic Party or individual state voters before setting the primary schedule and adopting the sanctions rule.

At most, therefore, any procedural due process obligation would have extended only to the application of the rule to the Florida delegation-that is, to the determination that the delegates' selection would indeed violate the scheduling rule, and to the determination to exclude all, not just half, of the delegates.

The definitive answer to the procedural due process attack on these decisions is that the DNC Rules and Bylaws Committee afforded state party officials a full and fair hearing before voting to enforce the rules and to exclude Florida's entire delegation. Procedural due process-if applicable at all-required nothing more.

VI

The Voting Rights Act

Plaintiffs assert that the DNC's exclusion of Florida delegates will violate section 2 of the Voting Rights Act. Congress adopted the Act to remedy racial discrimination in voting. See South Carolina v. Katzenbach, 383 U.S. 301, 308, 86 S. Ct. 803, 15 L. Ed. 2d 769 (1966). [*30] Section 2 provides:

HN13Go to the description of this Headnote.(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color [or membership in a language minority group].

(b) A violation of subsection (a) of this section is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protection by subsection (a) of this section in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. . . .

42 U.S.C. § 1973 (emphasis added).

It seems unlikely that either the DNC delegate selection rules or the DNC's decisions whether to seat or exclude delegates are subject to the Act at all. Cf. LaRouche v. Fowler, 77 F. Supp. 2d 80 (D.D.C. 1999) (three-judge court) (holding that national party's internal rules need not be precleared [*31] under Voting Rights Act § 5). And if the Act applied at all, it of course would be constrained by the party's First Amendment association rights.

But the applicability of the Act need not be decided here, because the DNC has not violated the Act, even if applicable. Nothing in this record suggests that the DNC's approved schedule was intended to have, or in fact has had, any adverse effect on members of any race or language minority group. Nothing in this record suggests that the DNC's decision to seat delegates from the other states and territories, while excluding delegates from Florida (or from both Florida and Michigan), was intended to have, or in fact has had, any adverse effect on members of any race or language minority group. To the contrary, the DNC has treated all Florida Democrats exactly alike, regardless of race or language. And while the universe of binding-primary voters from all states combined will have shrunk, and the universe of delegates from all states combined will have shrunk, nothing in this record suggests that the racial and language-minority representation within those shrunken universes will be different from their representation within the larger universes [*32] inclusive of Florida voters and delegates.

Plaintiffs have not asserted the contrary. Instead, they say a higher percentage of Florida African-American voters are Democrats than Republicans, so that the DNC's decision to exclude all delegates, compared to the Republican Party's decision to exclude only a percentage of Florida delegates, works a racial inequality. Nothing in the Voting Rights Act, however, requires the Democratic Party to match its rules with those of the Republican Party, just because the parties have different percentages of African-American voters. HN14Go to the description of this Headnote.The Act requires a covered entity-for example, a state-not to discriminate among its own voters based on race or language minority, but the Act does not require one entity (for example, Georgia) to conform its rules to those of another entity (for example, Alabama). And this is true even if the two entities have different percentages of African-American or language-minority voters. Thus even if the national Democratic Party is a covered entity-not at all obvious-this means only that it must not discriminate among its own voters, not that it must treat its voters the same as the Republican Party treats Republican voters.

Plaintiffs [*33] have not established a violation of Voting Rights Act § 2.

VII

Claims Against the Secretary of State

Finally, plaintiffs have named as a defendant the Florida Secretary of State in his official capacity. The Secretary has moved to dismiss, correctly noting that the amended complaint challenges nothing the Secretary has done and seeks no relief against him. Plaintiffs say vaguely that his presence might be necessary for unspecified relief in the future, but a complaint cannot properly go forward on the ground that in the future additional allegations might be made that might afford a basis for relief. The Secretary's motion to dismiss thus will be granted.

To be sure, plaintiffs hinted at oral argument that if their constitutional and Voting Rights Act challenges to the DNC's exclusion of Florida delegates was rejected-as has now occurred-plaintiffs might assert that the change of the primary date itself was unconstitutional or violated the Voting Rights Act. Plaintiffs carefully did not, however, actually assert that claim. The claim will not be addressed unless and until actually presented. Leave to amend will be granted. The granting of leave ought not, however, be read as a suggestion [*34] that claims of this type would, or would not, have merit.

VIII

Conclusion

The Democratic National Committee was entitled to adopt a schedule for 2008 primaries and caucuses used in the national convention delegate selection process. The DNC acted within its First Amendment association rights when it determined to exclude Florida delegates chosen in violation of the party's schedule. Neither the schedule nor the exclusion of delegates violate the Constitution or the Voting Rights Act. For these reasons,

IT IS ORDERED:

1. The summary judgment motion of defendants Howard Dean and the Democratic National Committee (document 6) is GRANTED. I hereby expressly determine that there is no just reason for delay and expressly direct the clerk to enter judgment stating, "Pursuant to Federal Rule of Civil Procedure 54(b), all claims asserted in the amended complaint against defendants Howard Dean and the Democratic National Committee are dismissed with prejudice."

2. Defendant Secretary of State Kurt S. Browning's motion to dismiss (document 9) is GRANTED. I do not direct entry of judgment with respect to the claims against the Secretary of State.

Spikers said...

Jenn -

Stephen Bronars, after performing regression analysis, "strong reject[ed] the notion that campaign contributions buy politicians' votes." He continued, "Contrary to the usual presumption, the article shows that campaign donations can be 'rational' even hen they do not alter how an individual politician votes. Just like voters, contributors appear able to sort into office politicians who intricially value the same things that they do."(Stephen G. Bronars, Journal of Law and Economics, Do Campaign Donations Alter How a Politician Votes? Or , Do Donors Support)

Another study found that political donations not only do not buy votes, they fail to even buy face time with legislators. Basically, politicians have so many donors, the amount given by any one lobbyists, or PAC, is likely to be relatively small, and thus not worth much. [see Mari Hojnacki, PAC Contributions and lobbyin Contacts in Congressional Committees; Political Research Quarterly, VOl 54, No. 1, (march 2001) p 161- 180]

Bethany Shepherd said...

I agree with Jen. Girl power! :)

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