Friday, August 31, 2012

Harry Kresky: A Cautionary Tale For Electoral Reformists

The Hankster reprints here in full NYC attorney Harry Kresky's brief article concerning Richard Winger's $243,279.50 attorney fees for anti-"Top Two" lawsuit.

Harry Kresky is councel to and Chair of Election Law Committee of New York County Lawyers Association. He blogs at Legal Briefs and publishes regularly on Huffington Post.


Richard Winger, editor of Ballot Access News and a longtime advocate for the rights of minor parties, has, along with several others, been held liable to pay $243,279.50 in attorney’s fees after losing a lawsuit brought to invalidate California’s new “top-two” primary system, adopted in a June, 2010 referendum.  I understand that a motion for reconsideration has been filed, and I am hopeful that this penalty will be vacated so that Richard’s important work in the area of electoral reform will not be crippled.
This unfortunate situation is a cautionary tale for those of us who seek to advance the cause of electoral reform through the courts.  
Richard and I have worked together for many years in various efforts to open up the electoral process and level the playing field for independent voters and minor parties. We differ strongly on the issue of top-two.  In Richard’s view, top-two hurts minor parties by limiting the candidates on the general election ballot to the two highest vote getters in a non-partisan primary election in which all candidates and all voters, regardless of party affiliation, participate on an equal footing.  Candidates are permitted to list a party preference.  Under the traditional system of party primaries, still operative in most states, each qualified party, major or minor, is assured that its candidate will appear on the general election ballot under the party’s name. 

For independents like me, top-two is a positive reform because it allows independent voters (who are more often than not barred from party primaries) to fully participate in the electoral process, and it breaks the hold of the parties on the candidate selection process. 
In their efforts to defeat this reform, through the courts and otherwise, Richard and other minor party activists have, in my opinion, allowed themselves to be used by the major parties. The parties, major and minor, have opposed the top-two system.  In California, the Democrats and Republicans decided it was best to allow the minor parties to play the more active role both in the media and in the courts.  And since the adoption of top-two by a substantial majority (53.8 to 46.2 percent) of the voters, the major parties have worked to discover how to use the new system to their advantage, while Richard and the minor parties in California have continued to litigate against it. 

In continuing down this road, they ignored warning signals that they would not only reach a legal dead end, but that there might be adverse financial consequences for lawyer and client alike.  The U.S. Supreme Court has upheld top-two as constitutional, and the U.S. Court of Appeals rejected a further challenge after the Supreme Court ruled.  The efforts of Richard and his attorney to enjoin the implementation of top-two also failed.  
The lawsuit in question tried to parlay two minor issues, neither of which had legal merit, into a wholesale attack on the top-two system.  The issues were whether a candidate could list as a party preference only the name of a qualified party, and whether top-two made write-in votes impossible.  By lack of merit, I mean that the Courts had already ruled that neither of these was a constitutional right that state legislation had to respect.  They are questions of public policy, with arguments on both sides.  Furthermore, these alleged defects in top-two can be easily remedied by the legislature. 

Despite all of this, Richard and his lawyer went ahead in their effort to overturn an important pro-democracy reform that the voters of California had supported.  There are lessons here.  They have to do with what you can and can’t accomplish through the courts, and what warning signals you must heed, as an attorney or a litigant, in the electoral arena. 
Perhaps most important, particularly for independents, we must not allow ourselves to be used by the major parties to prop up a partisan political arrangement from which more and more Americans are disaffected.  Did Richard believe his alliance with the major parties would provide legal and financial cover, despite the weakness of his case?  We all have something to learn from these unfortunate events.


richardwinger said...

There are several factual errors in Harry's essay. (1) there are two State Supreme Court precedents that say the label "independent" cannot be banned from ballots, and until the ruling in Field v Bowen, there were no precedents the other way; (2) it is not true that in most states, independents can't vote in congressional primaries for the major parties. 30 states let independents vote in both major party primaries.

But worse is Harry's idea that plaintiffs who challenge unfair laws in court should expect to be charged attorneys fees if they lose, and if the prior precedents were against them. The US Supreme Court ruled in 1882 that states may ban inter-racial marriage. The US Supreme Court ruled in 1896 that states can enforce segregation. Under Harry's theory, it would be just and proper for people who challenged these unjust rulings in the 20th century to be charged attorneys fees, since the precedents they were fighting were bad ones. This idea is a shocking idea for anyone who fights in court for social justice.

Randy Miller said...

I don't think he is defending the arrangement, simply pointing out that it is another Jim Crow type of arrangement wherein the parties are not only likely to, but derive pleasure from sticking you with the bill.