A couple of weeks ago I posted about McCain’s possible ineligibility for the office of President, based on his being born in the Panama Canal Zone.
But having a good legal argument is just step 1 for successful litigation when a Constitutional matter is at stake. You also need to clear the various hurdles set up by the judicial system to get the courts to hear your case, particularly the hurdles of ripeness, political question, and standing. So far, three legal challenges to the eligibility of Obama and McCain have been dismissed for lack of standing. See here, here, and here. (Richard Winger says – see the first link of the three – that there’s another McCain challenge that was dismissed for lack of standing. But I don’t know anything about it.)
Basically, the doctrine of standing dictates that only certain individuals are able to take certain controversies to court. Typically, you have to be a party that was harmed. If I steal money from Jeff, he can sue me for restitution, but his neighbor can’t. In other cases, a law might specifically say who can bring a legal action. An example is the recent ruling by the Supreme Court that the Ohio Republican Party doesn’t have standing to challenge Ohio’s Democratic Secretary of State, Jennifer Brunner, for alleged violations of the so-called Help America Vote Act. Even though the state Republican Party could be injured by illegal election-related acts committed by a Democratic official, the Court found that under HAVA only the Federal Department of Justice can bring such actions.
For the last three months I have been advocating an alternative approach that has been picked up, or perhaps independently arrived at, by election law scholar Daniel Tokaji. This approach calls for challenging McCain’s eligibility in state courts.
Many states have provisions for challenging elections based on a candidate’s eligibility. These include states which McCain has a good-to-excellent shot of winning, such as Florida, Georgia, North Carolina, Virginia, and Indiana. These five states have 81 electoral college votes among them. The provisions tend to be narrow, and do not allow ordinary voters to contest presidential election results, but losing candidates are allowed to contest, and Indiana’s law allows county-level party officials of losing parties to contest. Subject to how the state courts interpret these laws, this may resolve the issue of standing. A party official who might be denied standing in federal court, as in Robinson v. Bowen, would have standing in state court if the state’s statute says she does.
It might seem odd for a state court to make a decision about a federal constitutional issue. But I don’t think there’s anything judicially improper in this. What the state level court would be doing is making a factual determination regarding whether the candidate is eligible under the federal constitution. It would not be contradicting federal judicial precedent, since the federal courts have never ruled on the issue (the district courts keep dismissing it on standing grounds). It might be thought improper because the state court might harm McCain by wrongly deciding a federal issue. But McCain would not be harmed, because he would be able to appeal this decision up to the U. S. Supreme Court.
It would therefore seem appropriate for those seeking to challenge McCain’s candidacy to do it through the state courts.
Posted under Politics, Uncategorized
