Libertarians Lose Case to Block Presidential Debate

PMoonlite writes "As a followup to the previous Slashdot story, the judge ruled in favor of the Commission on Presidential Debates, refusing a restraining order on the basis of the doctrine of laches (unfairness due to delay of suit) and public interest, but allowing the Libertarians the possibility of seeking damages. So the debate will go forth at Arizona State University with only two of the three candidates on the state ballot."

Still a recourse

[not_a_witch]

I just thought I would add that while the judge in this case did rule that the debate could go on, they did leave room for the libertarian party to seek punitive damages in the future.

Re:Does this shock anyone?

[stinerman]

This rationale has been used in the SCOTUS decision Bush v. Gore.

7 out of 9 justices believed there was a violation of the equal protection clause in that ballots were counted differently in different counties. 4 out of 9 believed it was aggregious enough to extend the deadline past the mandated day for election results.

In short, there should have been a full recount, but there simply wasn't enough time to get it done.

Doctrine of Laches

[slithytove]

Stephen Gordon had this to say:

I clearly disagree with the ruling with respect to the doctrine of latches is incorrect for several reasons. To begin, we filed initially on October 1, and not the October 7 date the judge mentioned. The Washington Post reported that Bush did not even agree to debate until September 20. The CPD did not announce who would be excluded until October 6. It takes time for a pattern of illegal spending to occur, and for Libertarians to be able to document the pattern and respond. We did this in the most timely manner possible. Additionally, we filed in enough time that the hearing could have occurred earlier than the day before the debate.

Apparently the American public disagrees with the judge in regard to sufficient public purpose. Depending upon the poll cited, between 57% and 68% believe that the debates should be open, at least to those having a mathematical possibility of obtaining enough electoral votes to win an election.

from the Badnarik website

[Inebrius]

http://badnarik.org

2:54PM
Michael Kielsky of the Arizona LP explains in detail:

The Arizona Libertarian Party and co-plaintiff Warren Severin were represented by attorney David Euchner.

Arizona State University was represented by Carrie Brennan of the Attorney General's office.

Commission on Presidential Debates was represented by Glen Hallman of the firm of Gallagher & Kennedy, physically in court, as well as Lewis Loss, General Counsel for the CPD by phone.

The judge started by ruling that the service was sufficient for purpose of notice of this hearing. Then, each side was given 30 minutes to argue the issue.

Euchner reserved 15 minutes of his argument for rebuttal, and argued the case based on the violation of Arizona's Constitution, Art. 9, Sec. 7, which prohibit gifts to private entities. He presented additional arguments based on the 1st Amendment, the 14th Amendment equal protection clause, and case law which was on point.

Carrie Brennan argued the doctrine of latches (that the delay in bringing this suit worked an unfairness against the defendants). She further argued that the funding was provided by private parties, that there is great value to the University in hosting this, and that case law provides that such expenditures are allowed as long as they are not excessive or unreasonable.

Finally, she stated that there is an adequate remedy for any violations of the constitutional gift clause, therefore injunction is not appropriate.

Glen Hallman argued that Libertarians are not a special protected class, thus only a rational basis test applies to the equal protection argument, and using that test, the Libertarians were not discriminated against.

Lewis Loss argued that the CPD is non-partisan, and that Bush & Kerry would not proceed if Badnarik were admitted to the debate.

Euchner then rebutted, arguing that nobody remembers the location of the debates, and thus there is no value to the University in this expenditure, in other words, it is a gift to these two parties. As an example, Euchner argued that the only way debates are even remembered for any time is if they are parodied, such as on Saturday Night Live, and the rerun repeatedly. Further, even with a rational basis test on the equal protection clause, the judge should find for the Libertarians, because the discrimination is so blatant.

At the conclusion of the arguement, the judge issued his ruling from the bench:

1. No restraining order, because of the doctrine of latches, and that there appears to be sufficient public purpose for this debate.

2. The Plaintiffs may continue to pursue damages for any violations of the constitutional provisions.

In summary, we couldn't stop the debates or get Badnarik in, but we may still be able to hold them accountable through damages.

Post this far and wide.

This isn't the end of the line

[stinerman]

I'm reminded of the time Ralph Nader was kept from watching one of the 2000 presidental debates even though he had a valid ticket to watch it.

He left and then later sued the pants off of the CPD for violating his civil rights and won easily.

Since the judge basically said there wasn't enough time to resolve the case, and the damage to the public interest is irrevocable if they were to go ahead with an injunction, Badnarik still may have a case after the fact. I'd be willing he could get a pretty penny for his troubles.

Re:Does this shock anyone?

[Anil]

While many here will debate the fairness of the 15% clause does anybody seriously think that the American public would have been served by having the debate canceled?

The issue here wasn't the 15% clause. The injunction was based upon the Arizona State Constitution. The argument centered on the fact that the LP is on the ballot and an officially recognized political entity in Arizona. Therefor, the state was unlawfully providing contributions to only the Democratic and Repulican parties. From the summary on the blog:

... argued the case based on the violation of Arizonas Constitution, Art. 9, Sec. 7, which prohibit gifts to private entities. He presented additional arguments based on the 1st Amendment, the 14th Amendment equal protection clause, and case law which was on point.

Third-party debate movie...

[singularity]

Slashdot had an article about the third-party debate at Cornell University. [slashdot.org] unfortunately, it was not broadcast.

I am not a big fan of their platform, but the Constitution Party [constitutionparty.com] has posted a page with a link to a download of the debate. [peroutka2004.com] (warning: the movie is a 67.4MB download).

I just got done watching it. It is a good debate, and a good chance to learn about some of the third-parties.

3rd party tactics in the UK

[Colin Smith]

In the UK we have a similar state of 2 party politics however, there is a 3rd party gaining ground at the expense of the main 2. The Liberal Democrats, a centrist party.

They are starting to take serious chunks of support at a national level and they've done it by concentrating at a local level first. Get seats on local councils first, target resources at councils where you are most likely to gain seats or win. Leverage the councils and council seats to demonstrate competence.

It's taken 20 years so far and realistically they're still well back in 3rd place but as their vote increases, the other parties are having to take account of and answer questions posed by the LibDems, in addition, there are now no majority parties at all, it's painfully obvious that the existing electoral system is not up to the task of representing the population.

Re:Does this shock anyone?

[mec]

But I can't buy that a majority of Democrats aren't happy with Kerry

Here is a New York Times / CBS poll with some interesting data for you.

NYT Article [nytimes.com]

Click on the "Multimedia: Interactive Feature -- Complete Results" for a nice PDF of all the questions and answers. Scroll down to page 5 of the PDF, and look at questions 8 and 9.

(IF ANSWERED "GEORGE W. BUSH" to Q.5, ASK:)
8. Would you describe your support of George W. Bush as strongly favoring him, or do you like him but with reservations, or do you support him because you dislike the other candidates?

strongly favor 70%, like with reservations 22%, dislike others 8%, dk/na 1%

(IF ANSWERED "JOHN KERRY" to Q.5, ASK:)
9. Would you describe your support of John Kerry as strongly favoring him, or do you like him but with reservations, or do you support him because you dislike the other candidates?

strongly favor 48%, like with reservations 26%, dislike others 25%, dk/na 1%

So the people who prefer Bush are pretty solid. This might be consistent with your view that lots of Republicans are unhappy with Bush -- they might be unhappy enough that they didn't answer "George W. Bush" to question 5.

But the people who prefer Kerry are not all that strongly behind. 25% of them still say that they prefer Kerry because they dislike the other candidates, compared to 8% for Bush supporters.

Read the actual questions and answers; there are lots of interesting tid-bits. For instance, in Question 81, 40% of the people polled say that the believe that George Bush did not legitimately win the election -- that's a surprisingly large number of people who don't trust the system.

And again in the 2000 election, 29% of respondents said that they voted for Gore, and 35% said that they voted for Bush. Considering that the actual popular vote was much closer than that, it means (a) some people are lying (some people like to lie and claim they voted for the winner) or (b) the sample of this poll is skewed towards Bush, perhaps by the trendy "cell phone effect".

I used to wonder why political candidates paid their own pollsters, but once you start digging into the polls, you can see it's a lot more useful and interesting than just "X% Bush, Y% Kerry".

debate 15%?

[JavaLord]

While many here will debate the fairness of the 15% clause

There is no debating the 15% clause, it's unfair to third parties. Such a threshold would have barred Perot from the 1992 debates (he finished with 19 percent of the vote), and would have excluded Reform candidate Jesse Ventura from the 1998 gubernatorial debates in Minnesota (at 10 percent in polls before the debates, he won the election with 37 percent).