I was mistaken when I said Perry's 4th circuit brief discusses Williams v Rhodes. I made this mistake because several reported decisions concerning laches did mention Williams v Rhodes. So although the language about Williams v Rhodes was floating around in my head, it didn't come from my having read Perry's brief. It came from my having read the decisions in McInerny v Wrightson, McCarthy v Askew, and Brown v Davidson, three cases I mentioned in my blog post this morning.
In all three cases, the court said that the state's "laches" argument must fail, and in all 3 cases, the decisions cited Williams v Rhodes. In Williams v Rhodes, the US Supreme Court put Wallace on the ballot because when he asked for relief the ballots hadn't been printed yet. Then the Socialist Labor Party asked for the same relief a few days later but the Court said it was denying that because the ballots were printed.
So, the lower courts interpreted Williams v Rhodes to mean that the state's "laches" defense doesn't apply if the ballots haven't been printed yet.
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, 1:07 PM
Adam Bonin points me to the brief here:
http://images.politico.com/global/2012/01/perryca4appeal.pdf
This appears to be the entire discussion of the Supreme Court cases
in Perry's brief.
2 In McCarthy, the state argued that it was too late to
add the candidate’s name to the statewide ballot and the
District Court and Court of Appeals denied relief on the basis of
laches. See McCarthy v. Briscoe, 418 F. Supp. 816,
818 (W.D. Tex. 1976) (subsequent history omitted); McCarthy v.
Briscoe, 539 F.2d 1353, 1354-55 (5th Cir. 1976)
(subsequent history omitted). However, Mr. Justice Powell wrote
for the Supreme Court: “This Court will normally
accept findings of a district court affirmed by a court of
appeals, on factual consideration such as those underlying a
determination of laches. But acceptance of findings of fact does
not, in this case, require acceptance of the
conclusion that violation of the applicants’ constitutional rights
must go unremedied.” Id. at 1322. The Supreme
Court then ordered the candidate’s name be added to the ballot.
McCarthy, 429 U.S. at 1323.
I do not see the statement of Justice Powell (or the holding of
these cases) as preventing the application of laches in the ballot
access context. Laches depends upon unreasonable delay and
prejudice. Under the facts of Perry (given the lack of a reason for
not suing even months earlier) and the prejudice to the state in the
printing of ballots, it is hard to see that the district court
abused its discretion in finding laches.
On 1/15/12 12:57 PM, Richard Winger wrote:
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
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http://electionlawblog.org
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Justin Levitt
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Rick Hasen
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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
--
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
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