[EL] Todd Akin & party rights

[Christopher S. Elmendorf]

I'd be curious to hear opinions from other members  of the list about whether the governing body of the Missouri Republican Party (or the national Republican Party?) might be able to bring, and win, an as-applied associational rights challenge to the Missouri laws that apparently allow party officials to "replace" a duly nominated candidate on the ballot only if the candidate voluntarily withdraws from the race.

Does the state really have a compelling or even a substantial interest in keeping Akin on the ballot as the Republican party's nominee?  It would be one thing if Akin's inane and damaging remarks had predated the primary election.  In that case, the state arguably would have an interest in protecting the primary electorate's expression of preference.  (Though I wouldn't attach a lot of weight to this interest, given what we know about voter ignorance in primary elections<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2010115>.)  But since Akin's remarks postdated the primary, I don't see how the state can defends its laws "as applied" on the ground that they protect the interests of the party's membership as against the interests of the party elite.

The state certainly does have an interest in an orderly process for deciding who appear on the ballot.  But I don't see a disorder problem so long as the party organization makes its replacement decision prior to the Sept 25 deadline, and pays the cost of printing new ballots.  That is, Missouri law embodies a judgment that candidates can be replaced as late as Sept. 25 without undue disorder.

Best,

Chris

Christopher S. Elmendorf
Professor of Law
UC Davis School of Law
400 Mrak Hall Drive
Davis, CA 95616
530.752.5756
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