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Taking the Democratic Party to CourtThe top three litigation strategies for pissed-off primary voters—and why they're doomed.

By Richard L. Hasen
Posted Friday, March 7, 2008, at 11:05 AM ET
Obama and Clinton supporters. Click image to expand.

If you were a litigation-minded Clinton or Obama supporter, what might you be plotting? Bush v. Gore aside, the courts aren't prone to poking their noses into internal party politics, even when they get as messy and troubling as the Texas caucuses. Still, some lawyer somewhere will inevitably think about turning to the judiciary to resolve the tight race for the Democratic presidential nomination or, at least, to limit some campaign tactics that could affect the outcome. There is no reason to think that judges are better situated than voters or party leaders to decide who should face John McCain in November. But here are the three most likely legal claims, along with why they probably won't—and shouldn't—succeed:

Sit, delegates, sit! Florida and Michigan famously held their primaries too early this year, violating the scheduling rules set by the Democratic National Committee. None of the Democratic candidates campaigned in those states, and Obama's name did not even appear on the Michigan ballot. ("Uncommitted" got 40 percent of the votes, compared with Clinton's 55 percent.) Clinton won both of these contests, and she has taken the position that the Florida and Michigan delegates should be seated, a position rejected by the DNC chair, Howard Dean.

Some Floridians, including Sen. Bill Nelson, D-Fla., brought suit in October claiming that they were being disenfranchised by the DNC. Nelson lost in federal district court, where his constitutional and Voting Rights Act claims were both rejected. Nelson abandoned his appeal, but a second appeal brought by two Florida voters will be heard on March 17 by the U.S. Court of Appeals for the 11th Circuit. That court, too, is likely to say that this is an internal party matter. A far better option for the Democrats would be to hold do-over primaries (or possibly caucuses in Michigan). If not, the issue is likely to be resolved by a DNC committee or the delegates at the convention.

Go Away, 527s! A few weeks before the election, the American Leadership Project, an independent organization, began collecting large contributions (including $1 million from the union AFSCME) to run pro-Clinton ads in Ohio and Texas. The ALP is likely to support Clinton actively in Pennsylvania and elsewhere. It's a 527, a type of political outfit that rose in prominence because it can collect large soft-money donations that the 2002 McCain-Feingold law bars the political parties from accepting. Obama's election lawyer has claimed that the ALP actually constitutes not a 527 but a "political committee" under federal campaign law. Political committees cannot take contributions exceeding $5,000 from individuals and are limited in the kind of support they can get from corporations and unions. If the ALP is a political committee, it is breaking the law.

Ordinarily, the Federal Election Commission would resolve whether the ALP should be regulated as a political committee. And it probably will do so after the election is over. But at the moment the FEC cannot act; it lacks a quorum because of a Senate dispute over the nomination of controversial vote-fraud warrior Hans von Spakovsky. (Coincidentally, well before this issue arose, Obama put a hold on the von Spakovsky nomination because of his civil-rights record.) With the FEC frozen, lawyers for Democratic presidential candidate Mike Gravel (yup, he is still running) ran to the federal district court to ask a judge to declare ALP a political committee. The court refused, saying the FEC would eventually resolve the issue.

Given uncertainty over existing law (and a pending constitutional challenge to limits on contributions to independent political committees), there is very little that courts will do before the current election ends to prevent outside groups from running ads supporting or opposing presidential candidates. But supporters of Obama should not worry about the ALP. Obama has been breaking fundraising records, attracting more than 1 million donors and raising somewhere around $55 million in February alone. If Obama fails to win future contests, it won't be because he was drowned out by outside groups.

Shut up, Rush Limbaugh! The talk-radio legend has been urging Republicans to vote in the Democratic primaries to help propel Clinton to victory. The idea is that the Republicans would have a better chance in November running against Clinton than against Obama. There is some evidence from recent exit polls that a number of Republicans took Limbaugh up on his suggestion.

A reader of my Election Law Blog asked me whether anything could be done to stop Limbaugh's comments, which have the potential to distort the outcome of the nomination process. The short answer is no. Much as many people would like Rush Limbaugh to be quiet, the First Amendment certainly bars any attempts to prevent him or anyone else from urging a vote for or against a candidate for virtually any reason. And it is not as though the Democrats are defenseless against this tactic. Thanks to a Supreme Court decision, Democrats can choose to close their primaries in the future so that only registered Democrats can vote in these contests.

Democracy can be very messy, and the fight between Clinton and Obama could well hurt the eventual Democratic nominee as he or she faces off against John McCain in November. But rather than look to the courts for a solution, Democrats need to tackle this problem themselves—and sooner rather than later.

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Richard L. Hasen, the William H. Hannon distinguished professor at Loyola Law School, writes the Election Law Blog.
Photograph of Clinton and Obama supporters by Justin Sullivan/Getty Images.
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Comments from the Fray

1. No "do over," you made your bed now lie in it MI and FL. And Howard Dean is a craven coward to even consider allowing it. How effective of a teacher am I if I give a student a consequence for some action and then take it away? Parents, how well does it work to promise and not follow through with your kids?

2. 527s Suck!! But they should die because people ought have an abhorrent attitude toward them. Don't donors have better ways to spend their money? If they are found to be illegal great but would even private litigation be resolved before the election?

3. Rush is a jackass but he does have the right to free speech. And he has a point about the visceral reaction people have to Hillary. I hate her, and could never cast a vote for her. That doesn't mean I wouldn't vote for any Democrat, I just can't cast a vote for that mean, spiteful, monster, and her philandering, spotlight-hogging husband. Personally I don't care if that means a McCain administration instead of a Democratic one.

--Educatordan

(To reply, click here)

This is America and even a Shock Jock has a voice. The democrats need to really think about the damage they are allowing to happen in the name of their own party. This is not going to end gracefully as that is not a part of the Clinton makeup. They will fight to the bitter end and take Obama down with them. As good a candidate as he is, all of these smear attacks have the effect of allowing McCain to sit back and sip a latte as the strongest candidate is diminished.

The numbers do not add up for Clinton but that doesn't matter as they are not about numbers, they are about winning even if it becomes the one thing that gets McCain into office. They can't seat Michigan delegates of course since Obama's name was not even on the ballot and Florida has the problem of masses of democrats staying home and not voting as they followed the rules.

So what is left? Well the vicious attack on Obama can continue and allow McCain all the fodder he needs if Obama is indeed the eventual candidate or McCain can do like Rush and pray that Clinton is the candidate.

What democrats do this round will determine whether they are brighter than a shock jock or dumber than a stump.

--marylb

(To reply, click here)

(3/11)