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

[Greenberg, Kevin]

Adam,

I agree the case is weaker in Pennsylvania today, I don't think it is as flawed as you make it out to be.  There was a lot of contrary evidence, including Guzzardi himself saying he had not heard the comment and was personally responsible for the failure to read and follow clear instructions and being undisputed on the point that he had not heard the mysterious brown haired woman.

If, for example, Guzzardi had made it to the Ethics Commission and was told by counterstaff there that the filing was not necessary and then left, I think the Court would have ruled very differently.

>From the Opinion (footnotes omitted):
>From our point of view, even if there was some miscommunication at the Department-of-State remote to Mr. Guzzardi, this does not offset the underlying, self-acknowledged mistake on the part of the person who was "in command and control" and who was "the candidate for governor" in failing to apprehend, from the outset, the express statutory requirement to file a statement of financial interests with the Ethics Commission. Particularly as Mr. Guzzardi took responsibility for his failure in this regard, it is unclear why the dissents find this to be of no material significance to its assessment of his negligence.

I actually think the Taylor situation would have potentially fit within the framework permitted by footnote 5 of the majority opinion:
Since the present situation is vastly different from the "natural disaster, fire, or bomb threat" scenarios envisioned by the dissent, see Dissenting Opinion, slip op. at 10 (Baer, J.), we do not address those here. We reiterate, however, that judicial enforcement of the fatal-defect rule extends only to the limits of the federal and state Constitutions and recognize that such enforcement in impossibility scenarios may test such boundaries.
In response to Madame Justice Todd's remarks, we have no intention of distinguishing among real and/or hypothetical events in terms of the unavailability of equitable relief. We have only taken the opportunity to reply to the dissents' suggestion that courts should undertake equitable review, circumventing a clear and express statutory command, merely because it is possible to conceive of exceptional circumstances in which enforcement of the disability might be viewed as extreme. Notably, Justice Todd offers no authority supporting her position that conjectural constitutional impingements arising from a statute's application in unrealized and unusual circumstances should curtail its enforcement across the wide array of the more ordinary (yet substantially exigent and disruptive), real election controversies which the statute was obviously designed to redress. In our view, such manner of analysis demonstrates an insensitivity to the plain meaning of legislative enactments, their underlying purposes, and the strong presumption of constitutionality which they enjoy.
And that has nothing to do with the outcome-based trend that has sometimes shown up in these ballot access cases.

Finally, apologize to all of you other readers who only care What's the Matter in Kansas and not What's the Matter in Pennsylvania if the Kansas Fact Pattern Occurred.

Kevin


From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Adam Bonin
Sent: Wednesday, September 10, 2014 12:08 PM
To: 'Rick Hasen'; 'Sean Parnell'; law-election at uci.edu
Subject: Re: [EL] Does the Democracy Canon Support Removing Taylor's Name from #KSSEN Ballot?

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." Gomes v. Rhode Island State Bd. of Elections, 393 A.2d 1088, 1090 (R.I. 1978)<http://scholar.google.com/scholar_case?case=13151147967223603938&hl=en&as_sdt=6,39>.
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 Butts v. Bysiewicz, 5 A.3d 932, 947 (Conn. 2010)<http://scholar.google.com/scholar_case?case=11548906279585506977&hl=en&as_sdt=6,39>. 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), Andrews v. Secretary of State, 200 A.2d 650, 651 (Md. 1964),<http://scholar.google.com/scholar_case?case=16120498988247154555&hl=en&as_sdt=6,39> and Smith v. Kiffmeyer, 721 N.W.2d 912, 914-15 (Minn. 2006)<http://scholar.google.com/scholar_case?case=4654346940472337854&hl=en&as_sdt=6,39>) (footnote omitted); accord Foster v. Evert, 751 S.W.2d 42, 44 (Mo. 1988)<http://scholar.google.com/scholar_case?case=817114716734718648&hl=en&as_sdt=6,39> ("[E]lection contest statutes are a code unto themselves. The procedures there established are `exclusive and must be strictly followed as substantive law.'" (quoting Hockemeier v. Berra, 641 S.W.2d 67, 69 (Mo. 1982)<http://scholar.google.com/scholar_case?case=7387291706673112637&hl=en&as_sdt=6,39>). 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.
Butts, 5 A.3d at 943 n.16<http://scholar.google.com/scholar_case?case=11548906279585506977&hl=en&as_sdt=6,39> (quoting Martin v. Secretary of State, 760 N.W.2d 726 (Mich. Ct. App. 2008) (O'Connell, J., dissenting)<http://scholar.google.com/scholar_case?case=16240775524085152861&hl=en&as_sdt=6,39>); see Martin v. Secretary of State, 755 N.W.2d 153, 154 (Mich. 2008)<http://scholar.google.com/scholar_case?case=4308851532178823970&hl=en&as_sdt=6,39> (adopting the salient reasoning of Judge O'Connell's dissent on appeal); accord Repsold v. Indep. Sch. Dist. No. 8, 285 N.W. 827, 829 (Minn. 1939)<http://scholar.google.com/scholar_case?about=6411133803697909374&hl=en&as_sdt=6,39> ("[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
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From: law-election-bounces at department-lists.uci.edu<mailto: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<mailto: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-dates-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<mailto:sean at impactpolicymanagement.com>


Posted in campaign finance<http://electionlawblog.org/?cat=10>
Does the Democracy Canon Support Removing Taylor's Name from #KSSEN Ballot?<http://electionlawblog.org/?p=65200>
Posted on September 9, 2014 9:18 pm<http://electionlawblog.org/?p=65200> by Rick Hasen<http://electionlawblog.org/?author=3>

Taylor makes essentially that argument in the memorandum<http://www.kansas.com/news/politics-government/election/article2044679.ece/binary/Chad%20Taylor%20memorandum%20in%20support%20of%20petition.pdf> 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 Democracy Canon<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1344476> 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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