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Bad jurisprudence marks election suit decision

It’s not often that you get poor jurisprudence from all three parties – plaintiff, defendant, and judge – in the disposition of a lawsuit, but when you throw in a dash of judicial activism, that’s to be expected, and is what happened in the disposition of a federal lawsuit against the state to force it to hold New Orleans city elections according to the law.

U.S. District Judge and Clinton-appointee Ivan Lemelle essentially put the suit on hold, wisely to let the political process in this matter unfold, meaning he preferred to see the majoritarian branches of government work out the matter. Legislating from the bench betrays the Constitution and subverts democracy, and had Lemelle left it at that there wouldn’t be much to write about on this issue other than to applaud his use of good sense and reason.

But Lemelle also threatened that he might step in sometime in the (near, given the compressed timeline) future. This treads dangerous waters, because the only time judicial intervention ever is permissible is when a clearly articulated right is breached or law is indisputably broken, and, despite their questionably partisan motives, neither Gov. Kathleen Blanco nor Secretary of State Al Ater appear to have acted illegally. The enabling statute seems to have been followed, and a lot of interpretation would have to be inserted into the executive order to argue the delay contains any illegality.

While he remained on steadier ground when observing an equal protection violation could exist by not having elections in New Orleans when others were occurring in other Hurricane Katrina-affected parishes (and, he could have added, still others impacted as badly or worse than Orleans by Hurricane Rita), he really started going off the rails when censuring the Federal Emergency Management Agency for not turning over data about displaced persons to Ater. Neither federal no state law mandates any such requirement that the state without solicitation by the individual send information about voting and elections, using this as justification for a decision, if it comes to that, constitutes the exercise of raw political power within the judiciary and should be challenged.

It has not come to this because Ater now appears satisfied at the information given to him by FEMA. Translation: (1) Ater was getting beaten up in the court of public opinion and now is looking for a way to claim victory in his dubious pursuit, and (2) the threat of the judiciary ruling against the elections delay has gotten to him. He seems bent on wasting taxpayers’ money on this task that he is not required to perform. If anything, this matter ought to become the subject of a lawsuit by any Louisiana taxpayer as an equal protection violation – why was not such additional aid rendered to past voters who would be out of their parishes on election day? Is this not discrimination in voting rights?

In part, Lemelle probably was guided by some inferior reasoning by both the plaintiffs and defendant (the state). Inexplicably, the plaintiffs seem to have bought this manufactured notion that the state must notify displaced voters and argued outside of court the state had not done enough in this regard. How that line of reasoning should compel the court to force elections to be held on time is beyond me. In addition, the plaintiffs did not appear to offer substantial proof of any irregularities in the process that would make this a juridical, rather than political, matter.

For its part, the state offered an incredibly lame excuse to explain away its equal protection problem in allowing some parishes to proceed with elections while delaying them in New Orleans. It argued the law compelled Blanco to set election dates in Acadia, Jefferson, and St. Bernard Parishes, Yeah, because she didn’t issue the requisite executive order as she did in the case of New Orleans, so this argument entirely misses the point as to why parishes with small proportions of racial minorities living there prior to September were allowed to have elections set on time, while a place with a majority of racial minorities got delayed. This does, as suggested by the plaintiffs, smack of racism.

The real questions here are the matters of the state creating out of thin air an extra burden on itself (notification) and then using that as a justification to delay elections, as well as its differential impact on certain classes of citizens (racial minorities and previous absentee voters) from an equal protection standpoint. It’s not the general presumption that Blanco’s and Ater’s reasons for delaying elections weren’t “good enough.” Even if he used bad jurisprudence Lemelle blundered his way to the proper decision about letting the process play out. If Ater finds a way to miss the Apr. 29 general election deadline and/or Ater uses state money to fund his quest for notification, then a suit based on the proper objection can be filed.


Anonymous said...

Before accusing Judge Lemelle of "using bad jurisprudence," you need to show where he cited any case law at all. I don't think he even issued a written opinion.

Your last sentence is bizarre. You seem to understand the difference between a "political" and a "legal" question, yet you claim that any decision by Ater to notify dispersed voters of their voting rights is justiciable. As you concede, Ater is not breaking any law by choosing to do this. You seem so uncomfortable with the idea that an election official is making a good faith effort to increase voter turnout, that you would go so far as to claim he is breaking the law...when you agree he is not. This is a very confusing line of reasoning you've dug yourself into.

Also, where has the State said that notification is the reason why they are delaying the elections? So far, they've only brought up logisitcal challenges. Its my understanding that they are notifying all affected voters, and not just those from Orleans Parish.

P.S. I hope you never have to go before the honorable judge because he sure won't like that "blundered" comment.

Jeff Sadow said...

Please reread the post, and some of the others that I make reference to. That Ater is not breaking a law does not also mean that he is following the spirit of it. So far, Ater has given every reason for us to believe that his desire to go far and beyond what the law requires is a stealth attempt to subvert it in regards to the time and manner in which an election his held. I find that something very clear to understand.

If you will reference back to previous posts, you will see news articles where Ater has said he won't proceed with elections unless he can find a way to notify displaced voters. Your understanding, thus, is incorrect.

I wasn't referring to case law here, but instead judicial activism. By definition, that is bad jurisprudence.

Anonymous said...

The elections in Acadia and Jefferson are in parishes where the Registrar of Voters and Clerk of Court can perform their duties with few obstacles for voters. The St. Bernard election is a very small ward election which involves a minimal number of voters. All three of these elections are well within achievable limits. If all of St Bernard's anticipated voters voted by mail it might involve a few hundred mail ballots.

The Orleans election involves nearly 300,000 voters with at least 50-65% of them displaced and who will only be able to vote by an absentee ballot by mail. Orleans lacks any funding level to produce the election, the election staffs are either nearly part time or laid off, and nobody has a plan whatsoever to produce the election. Just a few reasons about the variance in why elections can be held in some parishes and not in others.