Obama v. Clinton: Could Delegate Counts Spark a Lawsuit?
Former U.S. Solicitor General and Bush v. Gore counsel, Ted Olson, writes in today's Wall Street Journal of the possibility of contentious litigation should there be a contest in seating delegates to the Democratic National Convention:
"Imagine that as the convention approaches, Sen. Clinton is leading in the popular vote, but Sen. Obama has the delegate lead. Surely no one familiar with her history would doubt that her take-no-prisoners campaign team would do whatever it took to capture the nomination, including all manner of challenges to Obama delegates and tidal waves of litigation.
"Indeed, it has already been reported that Sen. Clinton will demand that the convention seat delegates from Michigan and Florida, two states whose delegates have been disqualified by the party for holding January primaries in defiance of party rules. The candidates agreed not to campaign in those states. But Sen. Clinton opted to keep her name on the Michigan primary ballot, and staged a primary-day victory visit to Florida, winning both of those unsanctioned primaries. Her campaign is arguing that the delegates she won in each state be recognized despite party rules and notwithstanding her commitment not to compete in those primaries. Of course. 'Count every vote.'
"As the convention nears, with Sen. Clinton trailing slightly in the delegate count, the next step might well be a suit in the Florida courts challenging her party's refusal to seat Florida's delegation at the convention. And the Florida courts, as they did twice in 2000, might find some ostensible legal basis for overturning the pre-election rules and order the party to recognize the Clinton Florida delegates. That might tip the balance to Sen. Clinton..."
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3 comments:
Do you think Ted Olson is a good authority on what a Democrat would do over the FL/MI delegates? There's an obvious bias with someone like Olson, who despite his credentials in constitutional law and election law, has a history with the Clintons and as a Republican that suggests he might have his own agenda.
The idea of a lawsuit (which would fracture the party badly) sounds more like GOP wishful thinking then an actual likelihood. There are a number of other scenarios to resolve the delegate issue short of a lawsuit.
Josh,
I agree (and I think Ted Olson would concede) that he is both an expert in this area, but not particularly objective when it comes to the Clintons.
I also agree that there are other scenarios which could lead to an uncontested nomination. The first would be an Obama landslide in the remaining contests. The second would be mass movement of unpledged delegates ("superdelegates") from one candidate to another. Absent one of those scenarios, I think Ted Olson's experience with the Clintons makes his observation fairly informed that they are unlikely to go down without a fight.
My two cents.
-Aaron
There's also a difference between an uncontested nomination and one that involves a real fight over the seating of delegates from MI & FL. There are several scenarios out there by which one slate or another could be seated at the convention without a lawsuit.
The other issue is, of course, whether a lawsuit would gain any traction. My understanding is Sen. Nelson didn't get anywhere with his initial suit when the DNC first made its ruling to exclude the delegates (though I can't recall if it was tossed for standing or cause), so I don't know that HRC or here surrogates would get very far either. As David Schultz has reminded us this week, the SCOTUS has taken the position that parties may structure their business as they like with minimal interference from the courts.
So even if HRC decided to pursue a "scorched earth" strategy in trying to close the deal (as someone like Mr. Olson thinks she would), you have to wonder how far she'd actually get. Again, it sounds a little like the thinking of someone who is predisposed to believe the worst of the Clintons proposing this scenario, not a realist.
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