Court of Appeals Decides 2-1 Against January primary - Why they were right.

by: chetly

Sat Nov 17, 2007 at 03:08:16 AM EST

Here's the majority.
Here's the dissent.

Basically, the issue at hand is whether giving the two parties exclusive access to the voter lists derived from the election constitutes an unconstitutional use of public money for private purposes, a protection wisely embedded in the 1908 Constitution and retained in our current 1963 version, which requires a two-thirds vote for such appropriations.

Unfortunately, the legislation also included a "non-severability clause," forcing invalidation of the entire statute (and hence, despite Saul Anuzis' points today, making the case ripe for review before the election since deciding the list issue only after the election would render that clause moot and inoperative).  The Parties - both of them - are to blame for any failure to have an open election, both for making this deal and for making the deal an all-or-nothing thing knowing it would face Constitutional challenge.

While Grebner apparently did make a "vague First Amendment argument" (vague according to the dissent and Circuit Court, which did not rule on it), he does not appear to have made an equal protection argument, something I suspect could have been made at least as well as a vague First Amendment argument.  Indeed, the concept of "viewpoint neutrality", a concept that has roots in both the 14th and 1st Amendments, is clearly implied by Whitbeck's dissent - which acknowledges that public property is being used for private purposes, but argues that the parties are also engaged in public purposes as well (which is the flaw in his reasoning, in my opinion).  Below the fold for more.

This does not mean, however, that every use to which the political parties may put the lists is a private use. The Act specifically allows the use of the lists to support or oppose candidates, and this is a public purpose. Indeed, as the United States Supreme Court said in Buckley v Valeo, "[d]iscussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution."66 Further, as the United States Supreme Court also said, political expression must be afforded the broadest protection in order "'to assure the unfettered interchange of ideas for the bringing about of political and social changes desired by the people[.]'"67 "[T]he ability of the citizenry to make informed choices among candidates for office is essential, for the identities of those who are elected will inevitably shape the course that we follow as a nation."68

And even more directly, the Act also specifically allows the use of the lists to support or oppose ballot proposals. As with contributions and expenditures by corporations, the participating political parties' use of the lists will "serve to enlighten the public and encourage an informed decision-making process."69 Thus, while the lists may be used for private purposes, they may also be used for public purposes.

In this regard I note that government conducts elections while the political parties and their candidates conduct campaigns. While it is possible to conceive of elections without campaigns, the reality is that the two are inseparable in almost every instance of political life in this country and in this state. Clearly, the United State Supreme Court has recognized that the discussion of public issues and debate on the qualifications of candidates is absolutely integral to our system of government. Therefore, while supporting political party activities may serve the private purposes of those parties, such support also serves a public purpose. More directly, however, the support of or opposition to candidates and the support of or opposition to ballot proposals primarily serve a public purpose.

The majority comes to the opposite - I believe correct conclusion - by noting that the primary motivation and effect of the special deal provision of the law giving the parties and only the parties access to voter lists is the private benefit the parties will receive, not the "incidental" public benefit that may accrue from the parties using the lists to communicate (in their own biased ways, of course) with voters about candidates and ballot questions.

But the mention of ballot questions is what really sparked this brain - can giving ONLY THE TWO PARTIES access to information that allows them special powers in "campaigning" for or against ballot questions really guarantee a robust debate?

Let's imagine MCRI - Proposal 2-06. Both parties opposed MCRI. Or even Proposal 5-06 - the educational funding pork-barrel. Both parties officially opposed it, as well. If only the two parties had access to the list, they would have had superior firepower - financed by the state - in their advocacy against these proposals.  

And that's where the First Amendment comes in.  The concept of "viewpoint neutrality," no doubt not well argued even in the Circuit Court stage of this case, would forbid government subsidization of some speech over other speech.  In that vein, I've argued privately and I believe somewhere in this forum without detail, that the law on its face violates the Fourteenth Amendment Equal Protection Clause, specifically by exempting records under FOIA only for certain people and allowing other people access to the same records.  Since the public purpose of FOIA is to protect citizens from the harms of secret government, a law that grants access to some and not others unequally protects some citizens over others.  The equal protection clause - in its simplest construction - protects "persons" and guarantees that the protection of laws apply to all persons.  By exempting FOIA specifically, but allowing two persons (the two party chairs) to become part of a new category of persons with special access to records, the law raises that issue.  Of course, most people see the EPC in terms of race since it has traditionally been used for that purpose, but the early history of its use was dominantly in the area of commercial regulation.  Regardless, the First Amendment doctrine of viewpoint neutrality seems even more clear given the way Whitbeck sees the "incidental" "public benefit" of Parties using the voter lists.  I grant that there is a public benefit in debate that ensues when the parties have access to voter lists - but if there is such a list, it seems obvious that there would be much greater public benefit in allowing everyone the same ability to communicate with voters.  In that sense, the law reduces the net potential public benefit by reducing the overall amount of possible speech (and controlling who has the ability to speak in this area) in this area to only the parties.  If "incidental" public benefit is to be Whitbeck's standard, then he erred by not also calculating the incidental public losses of not have an equal and open system of access to the voter file.  If one calculates the incidental loss - of 7 million potential speakers (in reality, only a few thousand candidates, consultants, list brokers, ballot committees, etc., will take advantage of the opportunity afforded by the information's public accessibility, but everyone has the opportunity) - versus the incidental benefits of two people in the entire state being able to decide how to use the information and how and whom to communicate to, then it is clear there is either no public benefit, or the benefit of secrecy and exclusivity in control inures only to the two parties.  Whether other parties or a two-party system are good ideas or benefit or not benefit is not my concern here. My concern is that all individuals - all persons - have the same rights and abilities to engage on issues, candidates, and general speech. 

Whitbeck didn't see a precise harm, as he writes here:

I am cognizant that “‘one of the primary goals of election procedures is to achieve equality of treatment for all candidates whose names appear upon the ballot.’”71 However, this Court has previously stated that “the state’s interest in the stability of its political systems permits it ‘to enact reasonable election regulations that may, in practice, favor the traditional two-party system.’”72 Further, “‘[w]hile an interest in securing the perceived benefits of a stable two-party system will not justify unreasonably exclusionary restrictions, . . . states need not remove all of the many hurdles third parties face in the American political arena today.’”73 Here, the Grebner plaintiffs present nothing but speculation and conjecture to argue that the participating political parties would use the lists to disadvantage any candidate. In other words, the Grebner plaintiffs present nothing to support a conclusion that the Act’s provision providing for the transfer of the lists to the two major participating political parties presents an unreasonably exclusionary restriction. 

Perhaps the Grebner plaintiffs didn't think of the non-conjectural point I raise about Proposal 2 and Proposal 5.  Clearly the parties would have conspired against those proposals to their disadvantage.  The parties did conspire against them (in a lawful way, as they are entitled to under the First Amendment). The point is simple - neither of the parties can be fully trusted to always do the right thing, and I say that as a supporter of one of the parties.  But I know I have to keep the party in check sometimes, and there's no better way to do that than fully equal access. Not only is the ballot question example obvious and real - Whitbeck simply doesn't appreciate the damage to the primary process centralized control could cause if an authoritarian like Brewer used the information as a wedge (one wonders if Democratic list-broker Mark Grebner was speaking from experience or first-hand knowledge, but just unwilling to say it was experience because Brewer is simultaneously his client and competitor), and even though I like Saul there's always room for accident and bias even with good intentions.  

All in all, there were multiple high level issues at stake here. Although clearly the possibility of voter disenfranchisement might result if the primary process is forced into a caucus system (as current law stands, the primary vote will now be held in early February, unless the legislature acts), we can't allow or desire that legislatures to pass unconstitutional laws and extort us through the vote into allowing those perversions of the system to remain in place.  Axing this law was the right thing for the Court to do, and while the Democratic candidates may gain from this slightly because they didn't want to offend Iowa and New Hampshire (which are engaged in their own perverted extortions of the process, by trying to require the Parties disenfranchise other states voters for their lawful states' rights exercise of holding the primary vote whenever they choose), it proves that the court was right.