[EL] more on Perry, laches
Richard Winger
richardwinger at yahoo.com
Sun Jan 15 12:57:06 PST 2012
Rick Perry's recent brief to the 4th circuit quotes from both US Supreme Court opinions, Williams v Rhodes and McCarthy v Briscoe, on laches.
Richard Winger
415-922-9779
PO Box 470296, San Francisco Ca 94147
--- On Sun, 1/15/12, Rick Hasen <rhasen at law.uci.edu> wrote:
From: Rick Hasen <rhasen at law.uci.edu>
Subject: Re: [EL] more on Perry, laches
To: "richardwinger at yahoo.com" <richardwinger at yahoo.com>
Cc: "law-election at department-lists.uci.edu" <law-election at department-lists.uci.edu>, "Justin Levitt" <levittj at lls.edu>
Date: Sunday, January 15, 2012, 12:54 PM
Richard,
It has been a while since I've looked at these cases. Can you
remind me whether any of the Supreme Court cases actually discuss
the application of laches in this context?
Also, I don't disagree with the notion that courts are divided on
this question. But to the extent that the issue is an open one in
the 4th Circuit, I have advanced a policy argument as to why laches
would be a good doctrine to assert in these circumstances.
As I first wrote
about this case: "
This is an emergency of Perry’s (and Gingrich’s) own making. Surely
they knew of the requirement earlier."
On 1/15/12 12:47 PM, Richard Winger wrote:
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
--
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
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20120115/aff6d749/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/aff6d749/attachment.png>
View list directory