I'll do my best not to unduly characterize this lawsuit or the TRO. As you know, the Nevada's teacher's union, the NSEA, filed a lawsuit seeking to enjoin the Nevada Democratic Party from hosting 9 At-Large Precincts on the Las Vegas Strip. This lawsuit was filed within days of the endorsement of Barack Obama by Culinary Union.
The lawsuit in and of itself did not change anything. Last night, however, the wheels were set in motion by the NSEA to officially block the Nevada State Democratic Party from hosting those 9 At Large Precincts, through a motion for a temporary restraining order (to be followed up with a motion for a preliminary injunction).
PDF of the TRO Motion and Memo
Plaintiffs argue that the Democratic Party of Nevada (the "Party") intends to orchestrate a system of At-Large Precinct caucuses that creates a "preferred class of voters." Plaintiffs contend that this "disproportionate allocation of delegates to be chosen at the At-Large Precinct caucuses" violates the Equal Protection Clause of the United States and Nevada constitutions, as well as the Nevada Election Code and the Party's own charter.
At issue is the Nevada Delegate Selection Plan & Affirmative Action Plan referred to as Appendix C in the memo. According to the memo, this Delegate Selection Plan was believed to have been adopted on or around March 31, 2007. Plaintiffs allege that the actual date of adoption of this plan is unknown. Appendix C , which is the plan posted on the Nevada Democratic Party website, is dated Sept. 24, 2008. Plaintiffs cite to the National Democratic Party, which has a link to a draft version of the Delegate Selection Plan(clearly labelled "Draft").
Plaintiffs allege that "At Large Precincts are allocated delegates on the basis of attendance whereas all other precincts in the State of Nevada are allocated a fixed number of delegates based on the number of registered Democrats living in the precinct."
The main Equal Protection Argument is this:
Delegates selected at the At-Large Precincts will be assigned at a rate as much as ten times the rate for all other precincts in the state.
Delegate assignments are created by Nevada law. Nevada Revised Statute 293.133 provides that "[t]he number of delegates from each voting precinct in each county . . . must be determined pursuant to the rules of the party, if the rules of the party so provide, or, if the rules of the party do not so provide, in proportion to the number of registered voters of the party residing in the precinct, as follows:
(a) In the counties in which the total number of registered voters of that party has not exceeded 400, each precinct is entitled to one delegate for each 5 registered voters.
(b) In counties in which the total number of registered voters of that party has exceeded 400 but has not exceeded 600, each precinct is entitled to one delegate for each 8 registered voters.
(c) In counties in which the total number of registered voters of that party has exceeded 600 but has not exceeded 800, each precinct is entitled to one delegate for each 10 registered voters.
(d) In counties in which the total number of registered voters of that party has exceeded 800 but has not exceeded 1,400, each precinct is entitled to one delegate for each 15 registered voters.
(e) In counties in which the total number of registered voters of that party has exceeded 1,400 but has not exceeded 2,000, each precinct is entitled to one delegate for each 20 registered voters or major fraction thereof.
(f) In counties in which the total number of registered voters of that party has exceeded 2,000 but has not exceeded 3,000, each precinct is entitled to one delegate for each 30 registered voters or major fraction thereof.
(g) In counties in which the total number of registered voters of that party has exceeded 3,000 but has not exceeded 4,000, each precinct is entitled to one delegate for each 35 registered voters or major fraction thereof.
(h) In counties in which the total number of registered voters of that party has exceeded 4,000, each precinct is entitled to one delegate for each 50 registered voters or major fraction thereof.
Clark County, where Las Vegas is located, is a county with more than 4,000 registered Democratic voters. Thus, each precinct in Clark County is entitled to one delegate for each 50 registered voters.
ED. NOTE: The structure of delegate assignment under Nevada State Law is clearly not such that each voter in Nevada has an equal say in the selection of delegates. Voters in precincts in counties with low levels of democratic registration have 10 times the preference weight as voters in Clark County. There is, however, a rough proportionality between the number of delegates assigned to a precinct, and the total number of registered voters in a county, at a ratio of 1:80.
Appendix C of the Delegate Selection Plan specifically discusses the delegate allocation method for At-Large Precincts. The Nevada State Democratic Party created At-Large Precincts to increase voter access to the Democratic Caucuses on January 19, 2008. A significant portion of Nevada's population consist of shift workers employed on the Las Vegas Strip who work on 24/7 rotation. Traditionally, Nevada has accomodated and facilitated the political participation of these workers through "non-traditional" times and locations for polling sites easily accessible to those workers. Counties were awarded At-Large precincts based on the stringent requirement that 4,000 or more shift workers at a given site could not leave to participate in their home caucuses.
Assignment of delegates to At-Large Precincts is attendance-based, as opposed to the number of registered voters. This is because the At-Large Precincts do not represent a geographic area, per se, but rather a concentration of shift workers who would otherwise be disenfranchised. The delegates are assigned to At-Large Precincts according to the following formulas:
* If the total number of Democrats in attendance at the At-Large Precinct Caucus does not exceed 400, divide the total number of attendees by 5. Based on the attendance, the total number of delegates in these At-Large precincts will range from 1-80.
* If the total number of Democrats in attendance at the At-Large Precinct Caucus is between 401 and 600, divide the total number of attendees by 8. Based on attendance, the total number of delegates in these At-Large Precincts will range from 50-75.
* If the total number of Democrats in attendance at the At-Large Precinct Caucus is between 601 and 800, divide the total number of attendees by 10. Based on attendance, the total number of delegates in these At-Large Precincts will range from 60-80.
* If the total number of Democrats in attendance at the At-Large Precinct Caucus is between 801 and 1400, divide the total number of attendees by 15. Based on attendance, the total number of delegates in these At-Large Precincts will range from 53-93.
* If the total number of Democrats in attendance at the At-Large Precinct Caucus is between 1401 and 2000, divide the total number of attendees by 20. Based on attendance, the total number of delegates in these At-Large Precincts will range from 70-100.
* If the total number of Democrats in attendance at the At-Large Precinct Caucus is between 2001 and 3000, divide the total number of attendees by 30. Based on attendance, the total number of delegates in these At-Large Precincts will range from 67-100.
* If the total number of Democrats in attendance at the At-Large Precinct Caucus is between 3001 and 4000, divide the total number of attendees by 35. Based on attendance, the total number of delegates in these At-Large Precincts will range from 86-114.
* If the total number of Democrats in attendance at the At-Large Precinct Caucus exceeded 4000, divide the total number of attendees by 50. Based on attendance, the total number of delegates in these At-Large Precincts will be at least 80.
Appendix C states that the delegate assignment formula used for At-Large Precincts is "the same one used to determine delegate apportionment in the Nevada caucuses but instead of voter registration, it is based on attendance." Appendix C concludes that the At-Large Precinct Caucus plan "meets all the necessary requirements of the NRS, the Nevada State Democratic Party rules and by-laws and follows the Caucus Delegate apportionment formula determined by the state. Further, the NDSP worked with the Nevada Attorney General's office to make sure that the appropriate rules are followed."
Back to the brief. Plaintiffs argue that the "mathematical formulas used to determine the number of delegates fro the At-Large Precinct caucuses result in a grossly disproportionate number of delegates allotted to At Large Precincts compared to other Clark County and state precinct caucuses. The Party modeled the formula for the determination of delegates on NRS 293.133. However, instead of applying the formula applicable to the county in which these precincts exist, or a 'one delegate for 50 persons' standard as required in the rest of Clark County, the Party treats each At-Large Precinct as though it were a county, rather than a Precinct."
The Brief continues:
For example, Clark County Precinct 1109 has 399 registered Democrats and will receive 8 delegates -- even if all 399 registered Democrats participate in the caucus. Exhibit 11. By contrast, if an At-Large Precinct has 399 participants, it will be entitled to one delegate for each 5 participants, and would therefore be allotted 80 delegates. Exhibit 1. Thus, At-Large Precincts will be assigned delegates at a rate of as much as ten times the rate as other caucuses in Clark County.
ED NOTE: Plaintiffs have a point: At Large Precincts are treated like Counties. There would appear to be an easy fix to this alleged misproportionality: treat At-Large Precinct caucuses like Clark County Precincts. Therefore, a Clark County Precinct with 399 registered voters would receive 8 delegates, and an At-Large Precinct with 399 attendees would receive only 8 delegates (based on the 1 delegate per 50 participant ratio). Presumably, with 60,000 workers, the Culinary Union can motivate 36,000 to attend the At-Large Precincts that are on the strip. Given 9 At-Large Precincts, each precinct will have over 4,000 voters. In that case, each precinct will be using Clark County numbers anyway - 1 delegate per 50 voters, or 80 delegates per At Large Precinct, or 720 delegates for the shift workers on the Strip. Then again, perhaps labor and management reached an agreement that they did not want all 60,000 culinary union workers leaving their shift at the same time to participate in a caucus, and therefore set up a system where a few hundred activists could go participate on behalf of the larger rank-and-file.
META ED NOTE: Nevada Statutes provide that the Democratic Party can apportion its delegates however it wants, provided it does so pursuant to rules. The Delegate Selection Plan sets forth the rules. Think about it this way: States have Superdelegates. Those were not "elected" nor do they reflect voter preferences. Ultimately, at the convention, one candidate could decide to throw his or her support behind another, or the party bosses could select Al Gore or a dark horse candidate. The party process is not really supposed to be democratic or necessarily even proportional. Certainly, a party cannot preclude a certain type of voter from participating in the caucus system. A party cannot exclude certain candidates, either. However, I can't see any court wanting to get involved in the messy mechanics of allocating delegates. The statute delegates the delegate assignment process to the Party - if the Nevada State Democratic Party thinks that it wants a candidate reflecting its base, and its base is on the Las Vegas Strip, why should the courts say, no, you need a system that nominates a candidate that appeals to democrats outside of the Strip? In other words - if Democratic Voters feel marginalized and disrespected by the party's focus on the preferences of Strip Voters, then those voters can register independent or vote GOP.
META-LEGAL NOTE: The weakest part of the Brief is where they describe the Nevada Democratic Party's action as a "state action." For those lawyers out there, you know that private organizations cannot violate the Equal Protection Clause. They can unlawfully discriminate in violation of federal civil rights statutes, but such discrimination is not, without more, unconstitutional.
The Brief cites several cases. The first, Nixon v. Herndon, 237 U.S. 536 (1927), was a Supreme Court case where the Court struck down a Texas law that prohibited blacks from participating in the Texas Democratic Primary. The second case, Nixon v. Condon,286 U.S. 73 (1932), involving the same disenfrachised citizen, Nixon, was brought in response to the State of Texas' response to Herndon. Instead of a law prohibiting black participation, the Texas Legislature wrote a new law delegating the determination of eligibility to participate in a primary to the Texas Democratic Party (which subsequently adopted a resolution only qualifying "white democrats." Nixon again tried to vote and was again denied, and again brought suit. The Texas Democratic Party argued there was "no state action" sufficient to give rise to an Equal Protection Clause violation. However, the Court reasoned that because the new law delegated authority to the Texas Democratic Party to exclude would-be members of the party, the Party was acting under a grant of state authority.
The Brief cites to a 9th Circuit Court of Appeals decision, Kirtley v. Rainey, 326 F. 3d 1088 (9th Cir. 2003), as stating a four-part test to determine whether there is sufficient state action:
(1) "public function," where state action is found when private individuals or groups are endowed by the State with powers or functions traditionally governmental in nature;
(2) "joint action," where state action exists when state has so far insinuated itself into a position of interdependence with the private entity that it must be recognized as a joint participant in the challenged activite;
(3) "governmental compulsion or coercion," where a private action is rendered state action due to the coercive influence or 'significant encouragement' of the state; or
(4) governmental nexus, where a close nexus between the challenged action and the State allows the action to be fairly treated as that of the State.
The Brief argues that Nevada "extensively regulates the candidate selection proceedings that occur at the precinct level in the major political parties' caucuses." The Brief admits that, until 2007, Nevada mandated the allocation of delegates from the precincts to the county convention, but as of 2007, Nevada delegated that duty to the major political parties. NRS 293.133. Plaintiffs argue that the "public function" test was met because the allocation of delegates was "a role traditionally undertaken by statutory formula."
The fact is, in 2007, the Nevada State Legislature created an exception to the statutory delegate allocation formula, allowing the Nevada State Democratic Party to set its own rules and formulas for delegate allocation. What was a public function is not anymore. As far as I know, there is not "traditional" way of allocating At-Large Precinct delegates because such precincts did not exist prior to 2007. Provided everyone gets a vote, and the votes have some non-negligible weight and are not allocated according to invidious characteristics, the exact weighting given to each vote should be left to the State Party's discretion.
The Brief was well-written and well-researched. That said, I think there are three major hurdles:
- The Younger Abstention Doctrine. The federal courts won't decide any case they don't have to. Here, Plaintiffs make a lot of arguments about how state law was violated. The Equal Protection arguments could be just as easily made under the Nevada Equal Protection Clause. The federal court will say, let the state court decide! (I'm not sure, but Nevada judges may be elected, so they may have a particular stake in not pissing off a sizable constituency).
- Allocation of delegates is not state action, provided that the Party doesn't draw suspect classifications based on race, gender, national origin, etc. Do courts really want to get involved in the primary process of political parties? Provided everyone can participate - and here, everyone can - that some votes get more weight than others is probably not a constitutional concern. I mean, we have "superdelegates," right? We've got delegates from Michigan and Florida who won't even get seated. The Caucus Process means that candidates with less than 15% viability are foreclosed, and their supporters have to vote for someone else. That's why the Nevada Democratic Party calls these "non-binding presidential preference" polls.
- At best, an injunction could be entered modifying the delegate allocations such that they reflect Clark County delegate:voter ratios, but without closing the At-Large Precincts. It is the easy availability of this alternative which leads me to believe that this lawsuit has no merit: there is no way a court is going to shut down these At-Large Precincts (except for possibly a technical violation of state election code). The unintended benefit for Obama if the Court simply allocates delegates at a Clark County level is that this increases the importance of turnout - which the Culinary Union endorsement is supposed to excel at. Previously, if the Culinary Endorsement could rely on proxy votes, low turnout could help a candidate like Edwards or even Clinton, because every 5 defections from the Union Line would be a delegate for them. Now, Clinton and Edwards have to win 50 defections from the Union Line to win a delegate from Obama.