[EL] Todd Akin & party rights

Tue Aug 21 12:59:39 PDT 2012

Torricelli review voluntarily, if I recall correctly.  The legal question in that case concerned the statutory deadline for naming a replacement, not whether the party could compel its nominee to step down notwithstanding the lack of any statutory right to do so.  My question is whether the First Amendment right of association gives the Republican Party this right vis-a-vis Todd Akin.

Best,

Chris

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

From: Ken Mayer <kmayer at polisci.wisc.edu<mailto:kmayer at polisci.wisc.edu>>
Date: Tuesday, August 21, 2012 12:40 PM
To: Christopher Elmendorf <cselmendorf at ucdavis.edu<mailto:cselmendorf at ucdavis.edu>>, "law-election at uci.edu<mailto:law-election at uci.edu>" <law-election at uci.edu<mailto:law-election at uci.edu>>
Subject: RE: [EL] Todd Akin & party rights

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/njdpsmsn100202scord.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> [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<mailto: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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