[EL] Todd Akin & party rights

[Ken Mayer]

It worked in New Jersey in 2002, when Democrats persuaded Robert Torricelli
to withdraw, and were able to replace him with Frank Lautenberg, even though
state law allowed for such a late substitution only when a candidate has
died. 

 

http://fl1.findlaw.com/news.findlaw.com/wp/docs/torricelli/njdpsmsn100202sco
rd.pdf

 

Ken Mayer

 

Kenneth R. Mayer

Professor, Department of Political Science

Affiliate Faculty, La Follette School of Public Affairs

University of Wisconsin - Madison

110 North Hall/1050 Bascom Mall

Madison, WI  53706

(608) 263-2286 (voice)/ (608) 265-2663 (fax)

 

 

 

From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of
Christopher S. Elmendorf
Sent: Tuesday, August 21, 2012 2:33 PM
To: law-election at uci.edu
Subject: [EL] Todd Akin & party rights

 

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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