U.S. District Court Judge James Mahan has dismissed the lawsuit filed against the at-large precincts at the casino hotels.
In order to make this a full diary, I'll post the now-irrelevant piece I'd written up.
Update: Mahan's reasoning mirrors my prediction:
Mahan said the Nevada Democratic Party had a constitutional right to write its rules for nominating its candidates.
"State Democrats have a First Amendment right to association, to assemble and to set their own rules," Mahan said.
"I don’t want to set a precedent that is not warranted."
"The parties have a right to determine how they’ll apportion delegates to their conventions."
Why the Nevada Lawsuit Lacks Merit
There are many, many reasons to be disgusted by the lawsuit filed over the at-large precincts established for the Nevada Democratic caucus on Saturday. But this outrage, and indeed the lawsuit itself, misses the point.
For instance, the lawsuit affects workers on the Las Vegas strip enfranchised by these at-large precinct, most of whom are members of the Culinary Worker's Union Local 226, 60,000 member local of the 400,000 member UNITE HERE, which endorsed Senator Barack Obama for president on January 9th, exactly 2 days before the lawsuit was filed. This is despite the fact that the rules were approved over 8 months before on March 31, 2007 during which no lawsuits were filed.
The NSEA Deputy Executive Director, Debbie Cahill, is a member of Hillary Clinton's Nevada Women's Leadership Council. The attorneys at the law firm filing the lawsuit, including two of the senior partners and a former U.S. Representative, have contributed to the Clinton campaign. Of the 6 individual plaintiffs, one, Lynn Warne, is the head of the Nevada State Education Association. Most of the rest were active in Clinton endorser Dina Titus' failed gubernatorial campaign.
Four of the plaintiffs, John Cahill, Dwayne Chestnut and John and Vicky Birkland, were active voting members present at the State Central Committee meeting when these plans were voted on, and since they passed unanimously, these 4 plaintiffs must have approved of these plans at the time.
Finally, The Clinton campaign came out on behalf of the lawsuit on January 14th.
This has become a disturbing pattern of actions taken by the Clinton campaign this cycle to attempt to suppress the turnout among groups likely to support her chief rival, Barack Obama. It began with the Clinton campaign's attempt to mislead Iowa students from out-of-state to believe that they were not allowed to caucus, when the Iowa Secretary of State website explicitly states that they had that right. Young voters have been going overwhelmingly for Barack Obama. The Iowa caucus entrance poll had him at 56% among 18-29 year olds, with Edwards at 14%, Clinton at 11% and Richardson at 10%. Although he lost New Hampshire, exit polls gave him a similarly overwhelming victory among young voters, beating Senator Clinton 60-22 among 18-24 year olds. Now there's this lawsuit in Nevada, filed by Clinton allies in an attempt to suppress the vote of workers belonging to a union that has endorsed Barack Obama.
These actions are eerily reminiscent of those often taken by the Republican party to suppress the African-American vote, not due to racism, per se, but due to the fact that Democratic candidates generally get 90% of the African-American vote.
However, all of this is irrelevant to whether the lawsuit has merit.
In fact, the lawsuit itself misses a key point. The First Amendment right to freedom of association gives political parties control of the process of determining their candidates.
Courts have upheld rules which unambiguously violate equal protection laws by giving an entire state's voters no say at all in determining the Democratic candidate. I'm referring, of course, to the ruling by U.S. District Judge Robert Hinkle last month, which affirmed the right of the Democratic National Committee to deny delegates to Florida and thus prevent 4 million Florida Democrats from taking part in the decision to choose the Democratic nominee for president. The reasoning was that, under first amendment associational rights, the Democratic party has the right to set its primary schedule and enforce its rules, and noted that this was fully in line with the precedents set by past court cases. On issues from a candidate's ability to run for a party's nomination to limiting those allowed to vote in a primary to party members, the courts have ruled that the right of association overrides other concerns, including voter enfranchisement.
Finally, the Supreme Court just ruled unanimously that the New York State method of electing trial judges is constistutional.
Election law attorney Adam Bonin describes the method as follows:
First, there's a primary in which you vote for delegates to a judicial nominating convention. Then, at the convention, the party leaders (Democrats in NYC, Republicans in the rest of the state) decide who actually gets on the general election ballot. On that general election ballot, given NY state's NYC v. upstate partisan divide, there's really no choice at all.
However, despite this seeming violation of equal protection, the court unanimously found the process to be constitutional under the Democratic and Republican parties' freedom of association rights.
In Nevada itself, there are far clearer violations of equal protection caused by holding a Saturday caucus than anything alleged by the NSEA lawsuit. In order to participate in a caucus, a voter must be physically present at the caucus site on the day of the caucus. This prevents anyone who is required to be out of state that day from participating in the caucus, including business travelers, missionaries (Nevada has a significant Mormon population), and members of the military.
Since the caucus is on a Saturday, Jewish and Seventh-Day Adventists voters are also affected. Nevada has a relatively high Jewish population, 2.9% of the total population in 2006. Due to the tendency of Jewish voters to be highly politically active and Democratic, one would expect them to make up, at the very least, 5% of the registered Democrats, and, were it not on a Saturday, at least 10% of those participating in the caucus. While many of those Jews are not observant, some certainly are. Services take place at the same time as the caucuses, forcing observant Jews choose between religion and voting.
Thanks to freedom of association rules, the Nevada Democratic party is allowed to exclude these voters from participating in the primary.
However, in some cases, freedom of association actually results in enfranchising people disenfranchised by state law. Lamone v. Capozzi held that the state of Maryland's Constitution requires that voters be at least 18 years of age in order to vote. As a result of that December 2006 decision, the state Attorney General concluded that the law allowing 17 year olds to vote in primaries if they'd be 18 by the general election was unconstitutional, and began notifying 17 year olds of that fact. However, on December 10, 2007, the Maryland Democratic and Republican parties asserted that 17 year olds should be allowed to participate in their primaries under their freedom of association rights, and Attorney General Doug Gansler agreed.
The result is that 17 year olds in Maryland who will be 18 by November 4, 2008 can cast votes in the presidential primary election on February 12th, but not in any of the non-partisan races on the ballot. Provisional ballots will be issued to these voters to ensure that they do not vote in the non-partisan races.
This is similar to what the Nevada Democratic party has done by creating the at-large precincts for caucusing. If it were a non-partisan or general election, there would be a possibility of the NSEA lawsuit having merit. However, it's a caucus, and thus the Democratic party's freedom of association rights take precedence.