This relates to the effort of some election officials to require a hand count of the 2022 ballots in Cochise County, AZ, despite the legal conclusions of the relevant county election lawyers that such a hand count would be illegal under state law. Lisa Marra, former Cochise County Elections Director, argued she was constructively discharged from her position, after she refused to participate in a hand count, because other election officials created such a toxic work environment for her. Story here.
Nevada Republican Party sues to stop from being forced to use a presidential primary instead of a caucus
A Nevada news outlet has the details here, and the news release from the Nevada Republican Party is here. It took me a while to find the complaint, which was filed in state court last week in a state jurisdiction that does not have electronic access. That complaint is here.
The complaint argues that the First Amendment protects the right of the state party to run a presidential delegate selection process as it sees fit, and the Nevada Republican Party (apparently) desires to hold caucuses. But the Nevada legislature two years ago approved a switch to a primary process in AB126. The Nevada Republican Party is suing to stop that.
The Supreme Court in 1981 offered a succinct, if somewhat messy, statement of the legal framework (which I highlighted during last year’s DNC calendar shuffle) in Democratic Party of the United States v. Wisconsin ex rel. La Follette:
The State has a substantial interest in the manner in which its elections are conducted, and the National Party has a substantial interest in the manner in which the delegates to its National Convention are selected. But these interests are not incompatible, and to the limited extent they clash in this case, both interests can be preserved. The National Party rules do not forbid Wisconsin to conduct an open primary. But if Wisconsin does open its primary, it cannot require that Wisconsin delegates to the National Party Convention vote there in accordance with the primary results, if to do so would violate Party rules.
States can, essentially, hold whatever presidential primaries they like, whenever they like, however they like. But the national party is not obligated to recognize the results ahead of the presidential nominating convention.
Nevada Republicans, then, are free to hold a nominating caucus at the time and place they want. The State of Nevada, however, is also free to hold a presidential primary. Voters who participate in that primary may not affect the outcome of the selection of delegates–essentially, a “beauty contest.”
This is hardly novel. In 2016, for instance, Bernie Sanders won the Washington caucus–which was a step in sending delegates to the Democratic national convention–while Hillary Clinton later that year won the Washington presidential preference primaries–which were non-binding and had no formal outcome on the process.
Now, AB126 provides, “Any rules or regulations of the party governing the election of delegates and alternates to the national convention of the party, or directing the votes of delegates at the national convention must reasonably reflect the results of the presidential preference primary election, if one has been held for the party.” That is clearly unenforceable against the Nevada Republican Party per Democratic Party v. Wisconsin. (UPDATE: It appears that this provision was then repealed by SB292 months after it was enacted, so it’s not clear that there’s much left to this suit….)
So, the complaint (which could be removed to federal court as it is a First Amendment issue, although perhaps the Secretary of State chooses not to do so) could succeed in seeking injunctive relief or a writ of prohibition. That is, under on-point Supreme Court precedent, the State of Nevada cannot force the party to accept the results of a presidential primary. (Now, that being said, the complaint is fairly imprecise and does not exactly identify what the party wants to see enjoined, speaking more abstractly elsewhere about being “force[d] . . . to use a state-run primary.” The state can still hold a primary per Democratic Party v. Wisconsin.)
On the declaratory relief front, the plaintiff may fare slightly better. The Nevada Republican Party wants a declaration that the party is free to use a caucus system or that primary results are not binding.
One wrinkle to any relief, however: the complaint does not say that the Nevada Republican Party has committed to any particular presidential delegate selection process for 2024. That may mean that the complaint is not ripe for adjudication, as it is possible that the party chooses to use the primary process, and there is no legal conflict if that happens. It seems to want a declaration that it is free to do what it wants without formally indicating that it does not want a primary.
Finally, there are some “conventional wisdom” political ideas floating about that suggesting an intra-party feud, too–the conventional wisdom being, Donald Trump may fare better a smaller event with the most “die hards” in attendance, whereas a (closed) primary election that brings more Republican voters into the selection process will be to his detriment. It’s not clear whether that’s the motivation, or whether that would be the actual effect. And even here, many Republicans in the Nevada legislature favored AB126–this bill was not along starkly partisan lines. But it also highlights potential internal divisions about what process should be used.
In 2004 Partisan Gerrymandering Case, Justice Scalia Originally Had a Majority with J. Kennedy Joining, and J. Souter Was Going to Concur in the Judgment Not Dissent
I did not have time when I was at the Library of Congress looking at Justice Stevens’ papers to give a close read to the file in Vieth v. Jubelirer, a 2004 partisan gerrymandering case. In that case, four Justices, led by Justice Scalia, took the view that such claims were not justiciable (that is, could not be heard) in federal courts. [This is the position that the Supreme Court eventually took in the 2019 Rucho case.] Four Justices, including Justice Souter, dissented. Justice Kennedy agreed with the Scalia group that the standards for policing partisan gerrymandering put forward by the dissenters did not work. But he disagreed with Scalia about non-justiciability, believing the issue should percolate longer. Scalia’s opinion was not for the Court, but a plurality opinion joined by 3 other justices.
In the file, I found that Scalia originally was writing a majority opinion for the Court, with Kennedy joining Scalia, Thomas, Rehnquist, and O’Connor. Between the 4th and 5th drafts, Kennedy advanced his lone view to keep the issue open but not embrace any standards. That 5th draft was still called a majority opinion, but Scalia began attacking Kennedy’s position in that draft.
Also, interestingly, Justice Souter began his dissent as an opinion concurring in the judgment, drawing a distinction between statewide claims and district by district claims.
I’m sure there’s a lot more to do with this file for someone who has time. You can find the selected documents I copied at this link.
Sending Healing Thoughts and Strength to Gerry Hebert
Our friend Gerry Hebert, with a long and distinguished career in voting rights at the Department of Justice and at the Campaign Legal Center (not to mention his role as “Bailout King“), is ill with brain cancer. Jerry is a very fine lawyer and teacher, and an even finer human being. I wish him a full and speedy recovery so that he can get back to mentoring the next generation of voting rights lawyers.
I learned of Gerry’s illness when I spoke to him yesterday, and he told me how much he appreciates all of the words of encouragement that have been sent his way during his treatment. You can learn more about Gerry’s progress and condition by reading his latest Caring Bridge entry.
We wish you all the best Gerry!
“Opinion: The Supreme Court was enabling corruption well before the Clarence Thomas scandal”
Ciara Torres-Spelliscy with her views on this in the LA Times:
The Supreme Court recently reversed the conviction of a onetime aide and campaign manager for disgraced former New York Gov. Andrew Cuomo. The decision may have surprised those who follow Albany’s culture of corruption, but it was thoroughly in keeping with the recent history of the Supreme Court. The Roberts court has been busy deregulating corruption for over a decade.
The court’s own ethics have come under renewed scrutiny lately thanks to revelations about Justice Clarence Thomas, among others. What’s less widely appreciated is the court’s accumulating record of making political corruption easier to engage in and harder to prosecute….
In the New York case, meanwhile, the justices relied on the fine distinction that most of Percoco’s malfeasance occurred during a brief interregnum between stints in state government, while he was working on Cuomo’s reelection campaign as a technically private citizen. The court wrote that “the intangible right of honest services … plainly does not extend a duty to the public to all private persons.”
With the next presidential contest gearing up, the Percoco ruling could further embolden unscrupulous campaign managers and aides. After all, the front-runner for the Republican nomination has already seen two former top campaign officials, Paul Manafort and Steve Bannon, charged with federal crimes — and pardoned both of them. The Roberts court’s continuing campaign to excuse corruption by other means is bad for our democracy.
“Texas AG Says Trump Would’ve ‘Lost’ State If It Hadn’t Blocked Mail-in Ballots Applications Being Sent Out”
Texas Attorney General Ken Paxton, a Republican, said former President Donald Trump would have lost in Texas in the 2020 election if his office had not successfully blocked counties from mailing out applications for mail-in ballots to all registered voters.
Harris County, home to the city of Houston, wanted to mail out applications for mail-in ballots to its approximately 2.4 million registered voters due to the COVID-19 pandemic. However, the conservative Texas Supreme Court blocked the county from doing so after it faced litigation from Paxton’s office.
“If we’d lost Harris County—Trump won by 620,000 votes in Texas. Harris County mail-in ballots that they wanted to send out were 2.5 million, those were all illegal and we were able to stop every one of them,” Paxton told former Trump adviser Steve Bannon during the latter’s War Room podcast on Friday.