Friday, April 26, 2013

Independent Elections


Trudell v. State, 2013 VT 18

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.” 

Ladies and gentlemen, this is what is known in the trade as a bench-slap.

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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