Bell Curve The Law Talking Guy Raised by Republicans U.S. West
Well, he's kind of had it in for me ever since I accidentally ran over his dog. Actually, replace "accidentally" with "repeatedly," and replace "dog" with "son."

Tuesday, March 25, 2008

Question for Our Legal Experts

There is a lengthy and rather discursive commentary in the Green Papers about the interaction between Federal rights and political parties. (He also talks a great deal about State sovereignty vs. political parties, which I will not go into here.) While I do not feel his conclusions follow necessarily from his premises, some of the premises are interesting. I will do my best to summarize them and ask for clarification at the end.

In United States v. Classic (1941) the Supreme Court held that for Congressional elections:

Where the state law has made the primary an integral part of the procedure of choice, or where in fact the primary effectively controls the choice, the right of the elector to have his ballot counted at the primary is likewise included in the right protected by Article I, 2. And this right of participation is protected just as is the right to vote at the election, where the primary is by law made an integral part of the election machinery, whether the voter exercises his right in a party primary which invariably, sometimes or never determines the ultimate choice of the representative.

However in O'Brien v. Brown (1972) the Supreme Court denied an appeal to extend these protections to Presidential elections and the entire nominating process.
On July 3, 1972, delegates from California and Illinois brought suits in District Court contesting their unseating, recommended by the Democratic Party's Credentials Committee, in the 1972 Democratic National Convention, scheduled to convene July 10. The District Court dismissed both actions. On July 5, the Court of Appeals reversed both decisions, granting relief to the California delegates, and denying relief to the Illinois delegates. Held: In view of the probability that the Court of Appeals erred in deciding the cases on the merits and in view of the traditional right of a political convention to review and act upon the recommendations of a Credentials Committee, the judgments of the Court of Appeals must be stayed. The important constitutional issues cannot be resolved within the limited time available, and no action is now taken on the petitions for certiorari.

But four of the justices did not affirmatively concur with the decision to overrule the Appellate Court. One agreed only that there just was not enough time left to do act, and three others dissented. Justice Thurgood Marshall's summary of the situation, given in his dissent to the per curiam opinion, invites that question I want to ask our legal expert:
The excluded delegates allege, in essence, that the refusal of the party to accept them as delegates denies them due process, and denies the voters who elected them right to full participation in the electoral process as guaranteed by the United States Constitution.

It is the "right to full participation" that I wish to ask about. I should hasten to add that the 1972 case was very different from anything we may face today. Crucially, the CA primary law had been approved by the Democratic Credentials Committee, and all candidates had campaigned freely throughout the state. There was no question that the underlying election had been fair and legitimate; the (successful) attempt by the Credentials Committee to disallow the delegates was retroactive.

Nevertheless, while the circumstances were quite different, the heart of my legal question appears to be the same: how do Federal voting rights (particularly the 26th Amendment) interact with the Presidential nomination processes of the major political parties? Please note: I am taking off my "Hillary" hat and asking this question as a matter of intellectual curiosity inspired by--but not directed at--the current situation. Thanks for your patience.


The Law Talking Guy said...

I knew without looking that U.S. v. Classic referred to Louisiana; I confirmed by looking. Louisiana has a unique primary system that is an open primary for all parties. If a person wins 51% of the primary vote, he or she is automatically elected, and there will be no general election. In that unique context, then (and especially in the South) the Supreme Court said that these primary elections involved the same fundamental rights as general elections.

O'Brien v. Brown technically denied certiorari and denied the applications for stay filed concurrrently; it was not a full hearing on the merits. As such, it is of limited value. The dissent is, of course, of less value.

Justices Marshall and Douglas (dissenting) discuss whether the primary election process is "state action." The answer, I think, is both yes and no. A state could not exclude blacks from participating in the Democratic primary without running afoul of the 14th amendment; it could exclude Republicans. A state must, under the doctrine of equal protection, provide that each voter be treated the same according to race, religion, etc; but a state may not tell a political party how to interpret the results of the election. The question of whether, and to what extent, a primary is "state action" is crucial to whether there are constitutional limitations on it.

There has never been a court decision stating that each citizen has a right of "full participation" in the political process. Justice Marshall cannot mean this as broadly as it might seem. It might eliminate caucuses, or prohibit political parties from having any internal rules.

Bush v. Gore would hold that, where there is an election within a state, each voter has a right to have his or her vote treated equally vis-a-vis others in that state.

I think Justice Marshall might have intended that the Supreme Court would move to require political parties to behave as if they were public institutions. Or just to hold that political parties are public, not private actors.

But that view was not in the majority then, and would certainly not be in the majority today.
Today, the First Amendment is stronger than it was in those days. The "free association" principle embedded in it has to be respected too. That is what the SC would say today.

The Law Talking Guy said...

FYI, I don't think the 26th amendment is really the issue. It just extended franchise to 18 year olds. The issues are in the 14th and 15th amendments.

The Law Talking Guy said...

By the way, the Green Papers commentary is, I think, simply incorrect about Congressional power to regulate presidential elections. The "plenary power" view he puts forward about state sovereignty has never been adopted in the manner he proposes, as Scalia also would have done in Bush v. Gore (but did not get to do). The basic error, I have written elsewhere, the same kernel of error in the infamous Dred Scott decision: a misattribution of sovereignty ( and a contradiction of the 10th and 9th amendments). But I digress...

Dr. Strangelove said...

Thanks for your commentary and your digressions, LTG. Believe it or not, they help a lot here.

The Law Talking Guy said...

FYI, a federal judge in Detroit just declared Michigan's presidential primary law unconstitutional. Apparently, the law provided voter lists to the two major parties only. The effect of this on the Jan. 15th primary is unclear. It is fairly clear, however, that arranging a new primary is much more difficult since the legislature now must re-draft the entire law, not just amend it to add a date or two.