[EL] Todd Akin & party rights

Tue Aug 21 15:03:37 PDT 2012

I don't disagree with Dan's analysis, though I think a court *might* be
able to limit the right adequately by establishing a high evidentiary
bar--e.g., requiring the state party committee to introduce polling data
regarding the views of the party membership; requiring the committee to
obtain the concurrence of national party actors (in the case of candidates
for federal office); and holding that the committee must show
"unequivocally" or "by clear and convincing evidence" (or something
similar) that a majority of state party members want the nominee to
withdraw and be replaced by the party committee.

This would not avoid the problem of courts interjecting themselves into
basically political decisions at a high-stakes moment, but it should
reserve the interjections and attendant risks for really egregious cases.

I would imagine that even litigating the case might benefit the Republican
Party to some degree, as it would strengthen the signal of the Party's
rejection of Akin. 

Best,

Chris     

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

On 8/21/12 1:10 PM, "Lowenstein, Daniel" <lowenstein at law.ucla.edu> wrote:

>         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