[EL] Does the Democracy Canon Support Removing Taylor's Name from #KSSEN Ballot?

Wed Sep 10 09:07:30 PDT 2014

That estoppel argument is one which would have had a lot of purchase in
Pennsylvania courts from 1981 until last month.  In In re Guzzardi, the PA
Supreme Court explained its earlier per curiam reversal of a gubernatorial
candidate’s efforts to remain on the ballot despite having not filed his
Statement of Financial Interests on a timely basis at one of the two State
offices where it was required (Ethics Commission), which his campaign
claimed (and the lower court credited) was because an “aide to Mr. Guzzardi
was misled by an unidentified ‘young woman with dark brown hair’ in the
offices of the Department of State into believing that filing a statement of
financial interests with the Ethics Commission was unnecessary.”

The lower court’s decision was based on a set of earlier cases standing for
the proposition that a court may allow a later amendment to a defective
petition when the defect is the result of the party's reasonable reliance on
a representation, misrepresentation, or mistake by an employee or
representative of a board of elections.

The Supreme Court reversed, 5-2, and reasoned as follows in the pertinent
part:

Elections are appropriately regulated by the political branch precisely
because they are inherently political. This essential legislative governance
fosters orderly, efficient, and fair proceedings. In this regard, statutory
filing requirements and attendant deadlines "ensure the orderly functioning
of the primary-election timetable so that those responsible will have
sufficient time to prepare the ballot properly."
<http://scholar.google.com/scholar_case?case=13151147967223603938&hl=en&as_s
dt=6,39> Gomes v. Rhode Island State Bd. of Elections, 393 A.2d 1088, 1090
(R.I. 1978).

Out of respect for the political branch and for the sake of regularity and
orderliness in the election process, the Supreme Court of Connecticut
recently held that courts cannot exercise equitable powers to mitigate harsh
results in derogation of legislative requirements for strict compliance with
election-related deadlines. See
<http://scholar.google.com/scholar_case?case=11548906279585506977&hl=en&as_s
dt=6,39> Butts v. Bysiewicz, 5 A.3d 932, 947 (Conn. 2010). Initially, the
court explained:

We note that it long has been settled in other jurisdictions that statutes
employing [mandatory] language in filing deadlines for ballot access are
deemed mandatory, and that, with limited exceptions not implicated in the
present case, strict compliance is required such that neither the election
official nor the court can excuse a candidate's inadvertent noncompliance.

Id. at 940 (citing 26 AM. JUR. 2D ELECTIONS §216 (2004),
<http://scholar.google.com/scholar_case?case=16120498988247154555&hl=en&as_s
dt=6,39> Andrews v. Secretary of State, 200 A.2d 650, 651 (Md. 1964), and
<http://scholar.google.com/scholar_case?case=4654346940472337854&hl=en&as_sd
t=6,39> Smith v. Kiffmeyer, 721 N.W.2d 912, 914-15 (Minn. 2006)) (footnote
omitted); accord
<http://scholar.google.com/scholar_case?case=817114716734718648&hl=en&as_sdt
=6,39> Foster v. Evert, 751 S.W.2d 42, 44 (Mo. 1988) ("[E]lection contest
statutes are a code unto themselves. The procedures there established are
`exclusive and must be strictly followed as substantive law.'" (quoting
<http://scholar.google.com/scholar_case?case=7387291706673112637&hl=en&as_sd
t=6,39> Hockemeier v. Berra, 641 S.W.2d 67, 69 (Mo. 1982)). Addressing the
role of the judiciary's equitable powers, the Connecticut court quoted as
follows from a responsive opinion in a decision of a Michigan appeals court,
later adopted by the Supreme Court of Michigan:

Equity only applies in the absence of a specific statutory mandate . . . .
[I]t is not [a court's] place to create an equitable remedy for a hardship
created by an unambiguous, validly enacted, legislative decree . . . . This
should be particularly true of election law. If this [c]ourt were to erode
the statutory requirements of election law through the use of equity, we
would create ambiguity and inconsistency in what needs to be a uniform and
stable area of law.

<http://scholar.google.com/scholar_case?case=11548906279585506977&hl=en&as_s
dt=6,39> Butts, 5 A.3d at 943 n.16 (quoting
<http://scholar.google.com/scholar_case?case=16240775524085152861&hl=en&as_s
dt=6,39> Martin v. Secretary of State, 760 N.W.2d 726 (Mich. Ct. App. 2008)
(O'Connell, J., dissenting)); see
<http://scholar.google.com/scholar_case?case=4308851532178823970&hl=en&as_sd
t=6,39> Martin v. Secretary of State, 755 N.W.2d 153, 154 (Mich. 2008)
(adopting the salient reasoning of Judge O'Connell's dissent on appeal);
accord
<http://scholar.google.com/scholar_case?about=6411133803697909374&hl=en&as_s
dt=6,39> Repsold v. Indep. Sch. Dist. No. 8, 285 N.W. 827, 829 (Minn. 1939)
("[C]ourts should be reluctant to interfere with political matters by
granting equitable relief [outside the scope of election contest
statutes].").

We agree with the Supreme Courts of Connecticut and Michigan that the
judiciary should act with restraint, in the election arena, subordinate to
express statutory directives. Subject to constitutional limitations, the
Pennsylvania General Assembly may require such practices and procedures as
it may deem necessary to the orderly, fair, and efficient administration of
public elections in Pennsylvania. At least where the Legislature has
attached specific consequences to particular actions or omissions,
Pennsylvania courts may not mitigate the legislatively prescribed outcome
through recourse to equity. The Commonwealth Court's contrary approach, as
manifested in the Howells line of decisions is therefore disapproved. 

With regard to Section 1104(b)(3), quite obviously, the Legislature could
have provided that the filing of a statement of financial interests with the
Ethics Commission may be deemed timely where candidates are able to
demonstrate ostensible non-negligent reasons for failing to meet the
statutory deadline. Nevertheless, it did not do so — instead, the Assembly
pronounced a bright-line rule couched in strong admonitory terms.
Respectfully, contrary to the dissents' claims to a reasonable
counter-interpretation, "fatal" and "curable" are simply antonyms.

http://scholar.google.com/scholar_case?case=15034389011013239347 (emphasis
mine)

Adam C. Bonin
The Law Office of Adam C. Bonin
1900 Market Street, 4th Floor
Philadelphia, PA 19103
(215) 864-8002 (w)
(215) 701-2321 (f)
(267) 242-5014 (c)

adam at boninlaw.com

http://www.boninlaw.com <http://www.boninlaw.com/> 

From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rick
Hasen
Sent: Wednesday, September 10, 2014 10:30 AM
To: Sean Parnell; law-election at uci.edu
Subject: Re: [EL] Does the Democracy Canon Support Removing Taylor's Name
from #KSSEN Ballot?

I agree Sean that the two cases are different, and that the Democracy
Canon's application is less certain in a case like this than the Torricelli
case.  In the latter case, voters were deprived of a Democratic choice on
the ballot. In this case, the only danger is the lesser one of voter
confusion.

Indeed, it may be that the stronger argument to allow Taylor to resign is
(if Taylor's affidavit is to be believed) an estoppel argument, based upon
assurances he was given by the election division that his letter was
acceptable as a means of withdrawing. (There are all sorts of complications
about applying estoppel to the government, I know).  

Further, I do have questions about why SOS Kobach recused in an earlier
decision involving this same race based upon his service on Sen. Roberts'
reelection committee but did not recuse at this time.

Rick

On 9/10/14, 6:21 AM, Sean Parnell wrote:

One concern with the Democracy Canon and the idea that Taylor should be
allowed to remove himself from the ballot, over the objection of the state
officer whom I presume has the authority and discretion to make a
determination, is that it would seem to encourage and enable a variety of
political stunts, backroom dealing, and gamesmanship that I suspect will
over time tend to lessen the public’s trust in the political process.

One obvious scenario is that it would allow a political party to essentially
put two candidates on the ballot early on, one on the official line the
other on either an independent/unaffiliated line or on the line of a
sympathetic third party, and then make their real pick late in the game,
pressuring the candidate who isn’t doing as well to drop out. That’s
probably not as much of a problem for states with late primaries, but in
states that chose their candidates for the fall in the spring (as about half
of all states do
<http://www.ncsl.org/research/elections-and-campaigns/2014-state-primary-dat
es-and-runoff.aspx> , according to NCSL – technically two of them choose in
late winter) it isn’t difficult to see this scenario being employed for no
other reason than the party deciding their better off with someone other
than whomever was chosen in the primary (which pretty much seems to be the
case here in Kansas).

I’d also note, with apologies to Rick if I’m mistaken in the application of
the Democracy Canon, the interesting split between this case and 2002 with
Torricelli – in Kansas the Democracy Canon requires depriving voters of a
Democrat on the ballot, while in 2002 it apparently meant ensuring that
there was a Democrat on the ballot.

The bottom line is, I see much mischief ahead if as a general rule we wave
off statutory requirements and the exercise of discretionary authority by
officeholders elected to exercise that discretionary authority, essentially
in order to satisfy the political cravings of the moment. Just as
Republicans were stuck with Akin even after it was fairly apparent he was
not viable candidate, it appears to me that Democrats should be stuck with
having a Democrat on their ballot line that they perhaps would prefer not be
there.

Sean Parnell

President

Impact Policy Management, LLC

6411 Caleb Court

Alexandria, VA  22315

571-289-1374 (c)

sean at impactpolicymanagement.com

Posted in  <http://electionlawblog.org/?cat=10> campaign finance

 <http://electionlawblog.org/?p=65200> Does the Democracy Canon Support
Removing Taylor’s Name from #KSSEN Ballot?

Posted on  <http://electionlawblog.org/?p=65200> September 9, 2014 9:18 pm
by  <http://electionlawblog.org/?author=3> Rick Hasen

Taylor makes essentially that argument in the
<http://www.kansas.com/news/politics-government/election/article2044679.ece/
binary/Chad%20Taylor%20memorandum%20in%20support%20of%20petition.pdf>
memorandum supporting the writ of mandamus filed in the KS Supreme Court.

I think that’s probably right. What good does it do to give voters the
choice of a candidate who has attempted to withdraw and who has pledged not
to serve?  So to the extent the statute is ambiguous about what was required
for Taylor to withdraw, the
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1344476> Democracy Canon
suggests interpreting it to allow Taylor to withdraw. In some ways this is
like the Samson case from New Jersey Torrecelli which I discuss in detail in
the article: a State supreme court has to construe a statute about how to
deal with a withdrawing candidate shortly before the time of printing of
ballots.

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-- 
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://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org
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