This is a potentially big non-decision. Today the Eleventh Circuit Court of Appeals affirmed the Middle District of Florida's decision dismissing a lawsuit against the DNC, WITHOUT PREJUDICE. The last two words are the ones that count. "Without prejudice" means "you can file it again." But should the Plaintiff do so?
On August 30, 2007, Victor DiMaio brought a declaratory judgment action (asking the Court to do something, rather than award money damages) against the DNC and the Florida Democratic Party, claiming the refusal to seat Florida's delegates would violate his equal rights protections under the 14th Amendment, as well as rights under Article II of the Constitution. The case was NOT decided on the merits, at the trial level OR the appellate level.
The District Court dismissed based upon Article II standing* AND its opinion DiMaio did not allege State action, and that political parties have a constitutional right to conduct their own internal affairs. An appeal ensued.
*standing to sue - "a requirement that the plaintiffs have been injured or been threatened with injury sufficient that the plaintiff is the proper party to fight the lawsuit." Black's Law Dictionary, Sixth Edition, p. 1405
The Court of Appeals started with the standing argument, and agreed with the trial court, saying "This complaint undeniably fails the test for constitutional standing established in Lujan." Order, p. 6.
But then it got interesting. You see, the Court began the second half of its review by noting that DiMaio never exercised his right to amend his complaint to allege he actually WAS injured, but noted that he could still do so. It then actually advised DiMaio, in writing his amendment after remand WITHOUT PREJUDICE, to look at particular cases, namely Democratic Party of U.S. v. Wisconsin ex rel. La Follette, 450 U.S. 107 (1981), and Cousins v. Wigoda, 419 U.S. 477 (1975).
The issue in the Wisconsin case was described by the Supreme Court:
the question is whether, once Wisconsin has opened its Democratic Presidential preference primary to voters who do not publicly declare their party affiliation, it may then bind the National Party to honor the binding primary results, even though those results were reached in a manner contrary to National Party rules.
La Follette, supra, at 450 U.S. 121. So how did the Court rule?
The State has a substantial interest in the manner in which its elections are conducted, and the National Party has a substantial interest in the manner in which the delegates to its National Convention are selected. But these interests are not incompatible, and to the limited extent they clash in this case, both interests can be preserved. The National Party rules do not forbid Wisconsin to conduct an open primary. But if Wisconsin does open its primary, it cannot require that Wisconsin delegates to the National Party Convention vote there in accordance with the primary results, if to do so would violate Party rules. Since the Wisconsin Supreme Court has declared that the National Party cannot disqualify delegates who are bound to vote in accordance with the results of the Wisconsin open primary, its judgment is reversed.
Cousins v. Wigoda is even more interesting. In Cousins v. Wigoda, two different groups of delegates from Illinois fought for the right to go to the convention. The Wigoda delegates had the State's primary statute on its side, but the Cousins delegates were seated by the Party Convention. Right before the Convention the trial court issued, and the appellate court affirmed, an injunction against the Cousins delegates, finding the "interest of the state in protecting the effective right to participate in primaries is superior to whatever other interests the party itself might wish to protect." Cousins at 419 U.S. 488.
The Supreme Court began its own evaluation with this fascinating tidbit:
We observe at the outset that petitioners' compliance with the injunction would not have assured effectuation of the state objective to seat respondents at the Convention. The Convention was under no obligation to seat the respondents but was free, as respondents concede,FN8 to leave the Chicago seats vacant and thus defeat the objective.
and what did the Court conclude? This:
Thus, Illinois' interest in protecting the integrity of its electoral process cannot be deemed compelling in the context of the selection of delegates to the National Party Convention. Whatever the case of actions presenting claims that the Party's delegate selection procedures are not exercised within the confines of the Constitution-and no such claims are made here-this is a case where ‘the convention itself (was) the proper forum for determining intraparty disputes as to which delegates (should) be seated.'
Id. at 419 U.S. 491.
So you see, the case was dismissed without prejudice, but the Court made a pretty clear statement to Mr. DiMaio:
NO!
Why am I writing this diary? In part, because the New York Times story on the ruling is so very bad. It says:
But the ruling suggested he could file another challenge, now that he has voted in the Jan. 29 contest, and mentioned case law that could be included in the lawsuit.
If anybody at the Times actually read the case law, they would find that it was not intended to help Mr. DiMaio, but to warn him that further action would be futile. My guess, based upon what Mr. DiMaio said, is that he has not yet read the cases either:
''This is a big victory,'' said DiMaio, who said he is neutral in the presidential race. ''As close as this election can be, these little votes can make a big difference in who could be the next president of the United States. That's why I'm anxious and ready to go. And the clock is really ticking.''
I thought people might have seen the NYT story, and that this could be a helpful addendum.