[EL] Todd Akin & party rights

Tue Aug 21 13:16:36 PDT 2012

I don't agree that a state may require parties to nominate by primaries.  That issue has never been litigated.  It is true there is dicta in American Party of Texas v White (1974) that suggests that, but that issue was not before the US Supreme Court in that case.  Instead, the American Party (which was entitled to nominate by convention, if it successfully completed the petition) demanded that Texas provide it with a primary.  The US Supreme Court upheld the Texas law that says primaries are only for large qualified parties, not small qualified parties.

Nor was the issue litigated in California in Lightfoot v Eu.  That was a case in which the Libertarian Party accepted the mandatory primary, but argued that it should be allowed to supplement its list of nominees after the primary, via convention, for office for which no one had won the party's primary.

Richard Winger

415-922-9779

PO Box 470296, San Francisco Ca 94147

--- On Tue, 8/21/12, Lowenstein, Daniel <lowenstein at law.ucla.edu> wrote:

From: Lowenstein, Daniel <lowenstein at law.ucla.edu>
Subject: Re: [EL] Todd Akin & party rights
To: "Christopher S. Elmendorf" <cselmendorf at ucdavis.edu>, "law-election at uci.edu" <law-election at uci.edu>
Date: Tuesday, August 21, 2012, 1:10 PM

         This is an interesting suggestion, especially since I'd love to see Akin removed from the ballot, but I am skeptical that the Republican Party could succeed (or should succeed) in such a law suit.

          Tashjian initiated the line of cases holding that parties have associational rights to control their nomination processes.  Although logic suggests that the Tashjian doctrine should enable the party to decide whether to use a primary as its means of nomination, it is pretty clear that the doctrine does not go that far.  A state can require primary elections if it chooses to do so, whether or not a party objects.

           Chris' suggestion ostensibly is consistent with the state's decision that parties should nominate their candidates by primaries.  He suggests that a dramatic, unforeseeable event subsequent to the primary that undermines the candidacy or provides the party with strong reason to disown the association, should provide grounds for overturning the result of the primary.  Not only would such circumstances would be rare, but because of the unforeseeable nature of the event, the purpose for the state requiring the primary is itself undermined.

           That is all plausible, but in practice I believe Chris' suggestion would be worse than the problem it is intended to solve.  There would be the problem, which I raised in a law review article about twenty years ago, of who speaks for the party.  Though Tashjian and its progeny have generally obscured that problem, it is pretty clear in practice that in the circumstances those cases address, the party's state committee can speak for the party.  But to entrust the state committee with the power that Chris suggests goes a long way to undermine the state's choice for a primary.  In other words, if it could be taken as a given that the event in question is both unforeseeable and such a dramatic one that the primary would have come out differently, then Chris' proposal could work well.  But such determinations are not written in the sky, and given that someone has to decide these things and that the call will usually not be obvious, the
 question of who decides is crucial
 .  State party committees no doubt have many virtues, but making disinterested judgments is not one of them.  They are not formed for that purpose.  To enable the state committee to undo the result of the primary based on necessarily uncertain criteria is a substantial undermining of the state's choice of a primary.  Making the state committee's decision subject to judicial review would compound the problem, not alleviate it.  The questions (foreseeability, seriousness) are not only uncertain, they are political.  Just as party committees are not formed to make disinterested judgments, courts are not formed to make political ones.

             Best,

             Daniel H. Lowenstein
             Director, Center for the Liberal Arts and Free Institutions (CLAFI)
             UCLA Law School
             405 Hilgard
             Los Angeles, California 90095-1476
             310-825-5148

________________________________
From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] On Behalf Of Christopher S. Elmendorf [cselmendorf at ucdavis.edu]
Sent: Tuesday, August 21, 2012 12:32 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
_______________________________________________
Law-election mailing list
Law-election at department-lists.uci.edu
http://department-lists.uci.edu/mailman/listinfo/law-election
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20120821/43af8604/attachment.html>