LOS ANGELES – "The complaints have already been drafted," my friend — a prominent Florida lawyer — told me, and I'm certain that's true. If they haven't been, they will be. In recent days, it has become all but certain that Florida, facing disenfranchisement at the Democratic Convention, will nonetheless not conduct a "redo" of its Democratic Presidential primary. Depending upon who you talk to, the reason is either politics (Republican vs. Democrat), or politics (Clinton vs. Obama) or cost (will the voters pay, or the party, or private contributions?), or some combination of all three. Michigan seems to be headed for the same dead end, which should get the lawyers there to start drafting.
Theoretically, there are two forums where the dispute could be resolved: inside the Democratic Party, first in the Credentials Committee and ultimately at the Convention; or in the courts.
But the problem with the Party route, which is the obvious one, is that in practice, it combines the worst of all worlds: continuing the fight for the nomination until the bitter end, with almost no possibility of actally affecting its outcome. Here's why. Seats on the Credentials Committee will, if past procedure is followed, be allocated between the campaigns based on their respective percentage of pledged delegates after the last primary. But in truth, the Credentials Commiteee won't decide anything if things are contested. Say Obama has a few extra votes allowing his forces to prevail in Credentials and produce a majority report that calls for NOT seating Florida. The Clinton forces will have more than enough votes for a minority report to take to the convention proposing that the Florida (and Michigan) delegates be seated. The first order of business at the Convention will be to vote on the report(s) of the Credentials Committee. The challenged delegates won't vote, but the superdelegates will, and whoever is ahead in total delegates will "win" (if it comes to this) in a vote, which will be disciplined along candidate lines even more than the 1980 Convention vote between the sparring Kennedy and Carter camps about whether delegates were bound by the results of the primaries and caucuses (which meant Carter won) were. There was hardly a single defection on the rules vote in 1980, and there wouldn't be any on a Credentials challenge if it came to that. Whoever is ahead coming in will be ahead coming out, but the nomination will be worth far less for the fight.
The other route is the courts. The courts could, theoretically, force the seating of the two delegations so as to affect the outcome of the nomination. Is it likely? NO. Is it possible? Absolutely. Courts determining the election of the president? Shocking! Who has ever heard of such a thing?
Now, the obvious lawsuit to file would be one in which the duly elected delegates from Florida, and maybe even the state Party and the state itself, sue the national Party in an effort to secure an injunction requiring that the delegates be seated at the Convention. That's not likely to work. It's been tried before, in not-so-different circumstances. Two days before the Democratic Convention in 1972, 59 delegates elected in the Cook County Democratic primary, allegedly in violation of national Party Rules (the Wigoda delegates) sued in Illinois state court to enjoin the Party from seating 59 other delegates purporting to represent Cook County (the Cousins delegates) at the upcoming Convention. The court granted the injunction, concluding that state law and not national Party rules should determine who represented Chicago at the national Convention. The party, meeting that year in Miami, and with none-too-fond memories of the Chicago Democratic machine, ignored the injunction, seated the Cousins delegates (did I mention they were for McGovern?) and nominated McGovern. Nonetheless, the case continued on for three more years, past Nixon's inauguration and impeachment, on the grounds that criminal contempt charges were still pending against the Cousins delegates in state court. Three years after the Convention, the Supreme Court issued a ruling in -- you guessed it -- Cousins v. Wigoda, holding that as between national Party rules and state law, the national Party rules govern the procedures for selecting and seating delegates to the national Party Conventions. Since then, the national parties have won all such suits challenging their control of their nominating processes.
End of lawsuit? Not so fast. That will be the argument of the national Democratic Party. It is also the reason why any lawsuit is more likely to be filed not on behalf of the delegates who won't be seated, but on behalf of the voters who were disenfranchised. In Cousins, the question was not whether Illinois voters would be represented at the Convention, but by whom. With respect to the unseating of Florida (and Michigan), the question is whether individuals have a right, as against the state and national parties, to participate in the selection of one of the candidates who will appear on the ballot in the fall. Can the Democratic Party exclude a block of voters from participating and deny them their right to participate in the selection of a nominee? Can their vote be counted for less (or nothing at all) than the votes of other similarly situated and qualified voters who happen to live in other states?
Not clear. There are at least two other lines of cases that creative lawyers for the voters could rely on. In the apportionment context, where lines are drawn to devise districts for both state and Congressional elections, there are at least limits, if not absolute prohibitions, on the extent to which race can be taken into account in determining district lines, even where the districts ultimately have the same number of voters and therefore satisfy, arithmetically, the requirement of one person-one vote. If the way they do that is shaped by race, they may be struck down. But race is not the only factor that can doom a good job of gerrymandering. The Supreme Court has also held that even though drawing district lines is an inherently political process, if you can prove that the lines were drawn for the purpose of securing partisan advantage (as opposed to respecting natural boundaries or existing communities), the plan is subject to invalidation. Is politics behind the failure of the Democratic Party to conduct a redo in Florida, if not the refusal to seat its delegates? I could certainly argue that. I could also argue that the long line of "white primary" cases, in both the court of appeals and the Supreme Court, provide a basis for scrutinizing party rules that disenfranchise individual voters. In those states, which spanned three decades, from the 1920s to the 1950s, individual black voters sued to challenge their exclusion from Democratic primaries conducted in certain Southern states, most notably Texas and South Carolina. The first such cases succeeded in convincing courts to declare unconstitutional (under the post-Civil War 15th Amendment, granting blacks the right to vote) state statutes which limited participation in primary elections to members of the white race. The response was to transfer the exclusionary power to the Democratic Party, either in its conduct of primary elections, as in South Carolina, or even to so-called private Democratic Clubs, like the Jaybird Democrats, who had been excluding blacks from voting in their primaries since 1889 and whose contests, held before the official Democratic primary in the state, effectively determined who would be the nominee. The Supreme Court ultimately rejected the arguments that these private associations were entitled to include, or exclude, anyone they wanted, and held that the right to vote could not be denied based on race. Now, obviously these cases were stronger because they invoked the specific prohibitions of the 15th Amendment, but the right to vote is also protected by the due process and equal protection clauses of the 14th Amendment, which the Supreme Court in Bush v. Gore held required Florida to weigh equally the votes of voters across the state. If Florida is required to weight all voters equally, should less be expected of the national Democratic Party?
Who knows? As Bush v. Gore so clearly demonstrated, elections can be decided by five votes, as well by many millions. What's clear is that there is no state that offers as many opportunities for creative election lawyers as Florida. I'm almost jealous.
Susan Estrich is the Robert Kingsley Professor of Law and Political Science at the University of Southern California. She was Professor of Law at Harvard Law School and the first woman President of the Harvard Law Review. She is a columnist for Creators Syndicate and has written for USA Today and the Los Angeles Times.
Estrich's books include the just published "Soulless," "The Case for Hillary Clinton," "How to Get Into Law School," "Sex & Power," "Real Rape," "Getting Away with Murder: How Politics Is Destroying the Criminal Justice System" and "Making the Case for Yourself: A Diet Book for Smart Women."
She served as campaign manager for Michael Dukakis' presidential bid, becoming the first woman to head a U.S. presidential campaign. Estrich appears regularly on the FOX News Channel, in addition to writing the "Blue Streak" column for FOXNews.com.