[EL] more on Perry, laches
Richard Winger
richardwinger at yahoo.com
Sun Jan 15 12:47:32 PST 2012
Rick Hasen quotes Judge Richard Posner's decision in Nader v Keith (2004), in which Posner's decision criticizes Nader for filing his lawsuit against the Illinois petition deadline on June 27, 2004. But Posner's decision is an outlier.
George Wallace filed his complaint against Ohio in Williams v Rhodes on July 29, 1968, and the US Supreme Court put him on the ballot after the 3-judge US District Court declined to do so. The U.S. Supreme Court rejected the idea that Wallace was guilty of laches.
Eugene McCarthy filed his complaint against Texas in McCarthy v Briscoe on July 30, 1976, and the US Supreme Court put him on the ballot after the US District Court and the 5th circuit had declined to do so. The US Supreme Court rejected the idea that McCarthy was guilty of laches.
John B. Anderson filed his complaint against North Carolina on August 8, 1980, in Anderson v Babb. The issue was whether the sore loser law applied. Anderson was put on the ballot by the US District Court, and the 4th circuit affirmed, so that is at least one 4th circuit precedent that disagrees with Judge Posner's opinion about how early ballot access lawsuits must be filed.
I believe I could find 70 or 80 instances when a candidate, or a minor party, filed a ballot access lawsuit in the 2nd half of an election year, and the court put the candidate or party on the ballot in time for the November election. Judge Posner's opinion in Nader v Keith is all alone, I believe, in expressing the opinion that June is too late to file a ballot access lawsuit.
Richard Winger
415-922-9779
PO Box 470296, San Francisco Ca 94147
--- On Sun, 1/15/12, Justin Levitt <levittj at lls.edu> wrote:
From: Justin Levitt <levittj at lls.edu>
Subject: Re: [EL] more on Perry, laches
To: law-election at department-lists.uci.edu
Date: Sunday, January 15, 2012, 12:31 PM
Self-promotion alert: For what it's worth, I made a similar point in
this
Article, in the context of litigation challenging election-day
burdens like lines at the polls (and citing Rick's helpful
discussion below). Where (and only where) the conditions likely to
cause the problem are known well in advance, early resolution based
on a probabilistic assessment of likely harm benefits the system as
a whole. (But see Crawford...)
And while Rick's discussion below focuses on pre-election v.
post-election relief, the Article above builds on Rick's point in a different piece,
that even pre-election, logistical difficulties increase the later
it gets in the election cycle (in a way, this is the second
state where Perry's involved in a pragmatic election
administration mess caused by unresolved last-minute litigation,
though laches aren't -- and shouldn't be -- at issue in the Texas
case). The Virginia election isn't until March 6, but absentee
ballots should already have been printed, and have to be mailed in
less than a week. Even if the choice at hand doesn't threaten to
overturn the results of an election, it's already making it more
difficult to actually run the election in question.
Justin
On 1/15/2012 11:46 AM, Rick Hasen wrote:
Why Laches in Election Law
Litigation?
Posted on January 15, 2012 11:42 am
by Rick
Hasen
The laches issue is now before the 4th Circuit in the
Perry VA
ballot access case. I have long advocated that
courts be more willing to entertain early
challenges to election rules but also aggressively use
the equitable doctrine of laches to bar late
challenges to election rules. Here’s my most
extended discussion of the issue in the context
of pre- versus post-election challenges to election
rules (not exactly the Perry situation, but close
enough to make the public policy point) (footnotes
omitted):
The final reform this Article advocates relates to
the timing of court challenges to election
administration practices: Courts should be more
willing to entertain pre-election challenges and less
willing to entertain post-election challenges, at
least for those issues that could reasonably have been
foreseen and raised before the election. The argument
for the timing change is two-fold, considering both
the benefits of pre-election review and the costs of
post-election review.
Turning first to the benefits, in some
cases—particularly those involving presidential
elections—pre-election adjudication remains the only
way to give an effective remedy to an aggrieved
plaintiff. Consider Palm Beach County’s 2000
“butterfly ballot.” There is strong evidence that its
design cost Al Gore the election in Florida. After the
election, a group of plaintiffs brought suit
challenging the butterfly ballot and asking for a
re-vote in Palm Beach County to correct the error.
Unsurprisingly, the trial judge denied the request for
a re-vote: “[B]ecause Presidential elections are the
only national elections held in our country, our
forefathers included clear and unambiguous language in
the Constitution of the United States which require
[sic] that Presidential ‘electors’ be elected on the
same day throughout the United States.” “While a
re-vote or new election may not give other States
‘undue advantage’ in the instant action, the danger of
one candidate benefiting from an undue advantage in a
re-vote or new election is always a strong
possibility.”
Imagine if someone had gone to court before the
election, making a claim that the design of the ballot
would be confusing and could affect the outcome of the
election. Had that kind of suit been heard on the
merits, it is possible that the problem could have
been avoided, and a redesign of the ballot would have
greatly increased the chances for thousands more
voters to cast votes matching their intent.
Pre-election review thus presented the only possible
opportunity to afford a remedy for potential
disenfranchisement of Florida’s voters….
But consider the costs associated with post-election
challenges, where a court is asked to overturn the
result of an election or take a step that can affect
the outcome of an election. Such litigation puts
courts in a difficult position. A court asked to
decide a question of statutory or constitutional law
that affects the outcome of an already held election
is injected in the worst way into the political
thicket. Journalists immediately question the partisan
background of the judges, and partisan motives are
immediately questioned and dissected no matter what
the judges do.
Putting judges in the position of deciding election
law questions when the winner and loser of its
decision will be obvious can undermine the legitimacy
of the courts. Moreover, when judges second-guess
decisions made by legislators and votes cast by the
people, the legitimacy of the election process itself
can suffer. The nation does not want it to become the
norm that no close election results are considered
final until the courts have had their say, but the
nation is coming perilously close to that situation
given the increased use of election law as political
strategy.
Of course, there are situations where pre-election
review is impossible because the election problem that
materializes is not reasonably foreseen: Consider the
Carteret County, North Carolina problem, where
election administrators made a mistake about the
capacity of their electronic voting machines to hold
electronic votes. Nor does it make sense to require
campaigns to take extraordinary and costly steps to
ferret out all potential election administration
problems, such as a problem with felon voters being
left on the voting rolls who may later cast illegal
votes. But putting asidethose cases that would require
clairvoyance or an onerous undertaking, there are many
reasons to favor pre-election review and disfavor
post-election review.
Allowing post-election review when
pre-election review would have been relatively easy
to request essentially gives a campaign the “option”
whether to sue: The campaign identifying a potential
election problem can sit on its hands until it sees
the election results, and if it does not like the
election results it can use the problem as an excuse
to get a more favorable outcome. It is far better to
have a legal system that discourages such
speculation and encourages preventing harm in
elections that would prove difficult to undo after
the fact….
Allowing more pre-election review is not a recipe for
more overall election litigation. Courts should make
clear that a willingness to reach issues before the
election will be accompanied by a strict application
of laches after the election. “[L]aches is
unreasonable delay by the plaintiff in prosecuting a
claim or protecting a right of which the plaintiff
knew or should have known, and under circumstances
causing prejudice to the defendant.” But it is subject
to some exceptions, including an exception that
prevents its application “to defeat the public
interest.” This exception threatens to swallow the
rule in election law litigation, because the public
has an interest that election law disputes get their
day in court.
Courts should see it as in the public interest in
election law cases to aggressively apply laches so as
to prevent litigants from securing options over
election administration problems. This rule will
promote the public interest by insuring public
confidence in the election process. Judge Posner saw
it that way in a lawsuit brought by Ralph Nader to
allow him to file petitions late getting him on the
presidential ballot in Illinois in 2004:
[I]t would be inequitable to order preliminary
relief in a suit filed so gratuitously late in the
campaign season. It wasn’t filed until June 27, only
a little more than four months before the election.
If when he declared his candidacy back in February
Nader had thought as he now does that the Illinois
Election Code unconstitutionally impaired his
chances of getting a place on the ballot, he could
easily have filed suit at the same time that he
declared his candidacy—especially as he had filed a
similar suit the last time he ran for President, in
2000, when he obtained a preliminary injunction that
got him on the Illinois ballot by allowing him to
submit petitions collected after the deadline,
though no final judgment was ever entered.
Judge Posner recognized that the public interest in
fact militated in favor of a laches holding:
We are mindful that the right to stand for office
is to some extent derivative from the right of the
people to express their opinions by voting; it was
doubtless to remind us of this that Nader’s lawyers
added two prospective voters as plaintiffs. But
nothing is more common than for the denial of an
injunction to harm innocent nonparties, such as
people who would like to vote for Nader but unlike
the two voter plaintiffs are not complicit in his
decision on the timing of the suit. But there are
innocents on the other side as well—namely the
people who will be harmed if a last-minute
injunction disrupts the Presidential election in
Illinois. And Nader’s supporters can of course cast
write-in votes for him in November.
Posted in ballot access, campaigns,
election administration
| Comments Off
Gerstein Posts
Excerpts from Perry and Gingrich’s Emergency 4th
Circuit Appeal in VA Ballot Access Case
Posted on January 15, 2012 11:30 am
by Rick
Hasen
Here.
Posted in ballot access | Comments Off
--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://law.uci.edu/faculty/page1_r_hasen.html
http://electionlawblog.org
_______________________________________________
Law-election mailing list
Law-election at department-lists.uci.edu
http://department-lists.uci.edu/mailman/listinfo/law-election
--
Justin Levitt
Associate Professor of Law
Loyola Law School | Los Angeles
919 Albany St.
Los Angeles, CA 90015
213-736-7417
justin.levitt at lls.edu
ssrn.com/author=698321
-----Inline Attachment Follows-----
_______________________________________________
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/20120115/a6ffe70d/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: not available
Type: image/png
Size: 1520 bytes
Desc: not available
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20120115/a6ffe70d/attachment.png>
View list directory