The lesson of today’s
case is that the Vermont legislature, like Lucy with the proverbial football, can change the rules of an election and
pull the “football” at the last minute—or as in this case a year before.
The moral of today’s
case is that while you may have a federal argument to prevent Lucy from pulling
the football, don’t forget to bring the Vermont constitutional argument
too. And if you do, then argue it—really
argue it. Like this guy argues.
Otherwise, it is
AAUGH and a flop on your back.
In other words, if
Lucy can’t move the football under the Vermont Constitution, then you really need
to tell the SCOV why. Or you may end up, in addition to the flop, on
the receiving end of a double bench-slap from the SCOV.
Let’s start from the
top and work our way down. Essentially, this
is a case about filing-petitions-for-candidate deadlines—but more specifically,
it’s about the constitutionality of Vermont’s deadlines. Before we meet the plaintiffs, a little
background is in order.
In 2009, Congress
enacted the Military Overseas Voter Empowerment (MOVE) Act to make it, at least
nominally, easier for overseas military personnel to vote. The Act sets a 45-days-before-the-election
deadline for states to prepare ballots.
Because the acronym just
begs for a pun here, let’s not linger on the federal implications of this act
but “move” along to the consequences for the state. MOVE prompted Vermont to pass the
uninspiringly titled “Act 73” in the same year, which “Act 73ed” the primary
elections to earlier in the year and set the primary registration date to
mid-June. The Act also required independent
candidates to file their statements of nomination by the same date. This is all presumably to make sure that the
45-day deadline is met.
Before Act 73 “Act
73ed” all the dates up, independent candidates had up to three days after
primary elections to announce and file for their candidacy. Act 73 effectively moved the deadline up by
about 70 days. In doing so, it effectively
locks independent candidates into filing for candidacy before the party
primaries, instead of after. In effect,
it forces a candidate to declare when the field of major party candidates are
undecided and prevents such major party candidates from filing as independents
after they lose the primary (though it does not prevent them from filing at the
beginning as both a party and independent candidate)—more on this effect in a
moment.
So let’s meet the
plaintiffs: Gerald Trudell is a
recurrent independent candidate for Congress since 2006. Myron Dorfman is a voter who tended to vote
independent and would’ve voted for Mr. Trudell had Mr. Trudell been on the
ballot in 2010. The reason Mr. Trudell
wasn’t on the ballot in 2010 is because he wasn’t able to get the number of
signatures he needed to make the new June deadline (he only decided to run two
days before the deadline). He did file a
petition in August, but it was too late, and Mr. Trudell had to run in 2010 as
a write-in candidate.
(Spoiler alert: he
didn’t win.)
Plaintiffs’ complaint,
as the SCOV frames it, is that “the new registration date for independent
candidates violated their rights, as candidate and voter, under the First and
Fourteenth Amendments of the U.S. Constitution.” After a brief merits hearing, the trial court
found the regulation constitutional. Plaintiffs
appealed, but the SCOV reaches the same conclusion.
Today’s vocabulary word
of the day is cavil. I had to look this one up. Kudos to you if you already know what it
means; I didn’t. Essentially, cavil means quibble.
The SCOV begins its
analysis by noting that the right to vote effectively and for the candidate of
one’s choice is “beyond cavil.” The
standards that apply to restrictions on that right are fairly
straightforward. If a restriction to the
ballot is severe, then it must be narrowly drawn and supported by a compelling
state interest; on the other hand, a reasonable, nondiscriminatory restriction
needs only a rational justification. To
that end, basic regulatory interests are enough for the latter type to pass
constitutional muster.
The SCOV offers an extensive
overview of the U.S. Supreme Court’s decision in Anderson v. Celebrezze, 460 U.S. 780 (1983). But you can read the SCOV’s actual opinion for that. Also, here’s a link to the Wikipedia entry on Anderson
if you’d like to brush up. We’re all
about “efficiency” here. Long story
short, the SCOV distinguishes Anderson—a
case in which ballot restrictions affected independent candidates
disparately—from the current situation.
The SCOV notes that the
new regulations treat potential candidates—both independent and “major
party”—equally. Under Act 73, everyone
has to file a petition at the same time.
Having made that point, the SCOV goes on to note that Vermonters have a
“particular affinity for independent candidates.”
The SCOV doesn’t make
much of plaintiffs’ argument that the earlier deadlines require all Vermont
voters to “bend their First Amendment, constitutional rights of association to
a time table created for the benefit of two associational groups.” Instead, the SCOV notes, as did the trial
court, that early registration could help bump an independent candidate’s
viability (because independent candidates can use the period during the
primaries to promote their general election campaign while the major party
candidates slug it out amongst themselves).
The SCOV also points
to the sheer number of viable independent candidates in the 2012 election (46)
as evidence that independents can and are meeting the new deadlines. The SCOV also reasons that the deadlines do
not effectively favor major-party candidates.
Accordingly, the SCOV concludes that “the registration deadline is a
reasonable, nondiscriminatory regulation that imposes at most a minor burden on
plaintiffs’ rights.”
In that light, the
State’s burden coming into the case is minimal—but still present. The State didn’t need to show much, but the
State can’t “just make $#!@ up that sounds good.” (Slight paraphrase)
On that note, the
SCOV reasons that Vermont has a legitimate interest in complying with federal
law, even though in this case there was conflicting testimony on the deadline’s
necessity for compliance with federal law.
But the SCOV seemingly
rejects the State’s other purported justifications. The State argued that the deadlines help with
voter education and transparency. That’s
a good reason, says the SCOV, but the State doesn’t tie it together with the
law at stake here.
The State also argued
that the deadlines helped to prevent “sore-loser” candidates—those candidates
who lose the major-party primary and decide to run as an independent anyway. The SCOV reasons that while the legislation
doesn’t technically prevent “sore-loser” candidates, the deadline requirement
does remove the element of surprise from those candidacies (one would have to
file as an independent as well as register for the major-party primary) and
effectively makes it impossible to run as an independent sore-loser after the
fact. Therefore, it comprises a
legitimate State interest.
Or as the SCOV puts
it: “[T]he State’s interests, though attenuated, are legitimate and
sufficiently justify any mild burden imposed.”
Plaintiffs’ arguments
that the trial court erred in relying on legislators’ testimony doesn’t get
much play to rebut the State’s position.
The SCOV basically says that even if the admission of the evidence was
error, (a) the trial court didn’t appear to rely on it heavily; and (b) the
plaintiffs’ substantive rights weren’t affected. Harmless error!
In a last-gasp
argument, the plaintiffs throw up an Articles 7 and 8 of the Vermont
Constitution Hail-Mary-esque pass. But
the quarterback fumbles. The SCOV says
that “plaintiffs fail to present any substantive analysis or articulation as to
why Article 7 should accord a different read on the constitutionality of the
statute” and skips any analysis on Article 7.
As to Article 8, the SCOV acknowledges that the “plaintiffs
correctly highlight that there is no federal counterpart to the right-to-run
provision.” Regardless, the SCOV—in a
somewhat snarky manner—remarks that this mere fact doesn’t “provide plaintiffs
with a get-out-of-briefing-free card.”
Chief Justice Reiber,
joined by specially assigned Judge Cohen, concurs briefly, “to emphasize the
common-sense observation that the advanced deadline for independent-candidate
registration serves mainly to deprive Vermonters of potential choices at the
ballot box.” The Chief Justice also
notes that he shares his “colleagues’ dismay at plaintiffs’ failure to
adequately brief their claims under the Vermont Constitution.”
The shame here is
that the concurrence seems to indicate that the SCOV was ready to consider the
Vermont constitutional arguments and was limited by Plaintiff’s failure to
brief them. The SCOV is irked, and it is
not a nice way to lose.
Sacked for a loss of fifteen
yards and no first down, Plaintiff will just have to run (the ball) again.
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