The ASUA Supreme Court: All the craziness of Birdman, with none of the cartoon nostalgia

Or, the most overdue post in the history of the internet (maybe)

In an article on next Monday’s Supreme Court hearing(s?), Luke Money noted the following:

Allen and Hernandez have the option of being represented by council at the hearing, though only current UA law students are allowed to serve as council. [sic, sigh]

Assuming that this is a “post factor“-style typo for counsel, readers of this site should be rather bemused by the assertion. After all, this site’s original proprietor ended up serving as counsel as an undergraduate, in a case from the 2010 election cycle — a case that the Wildcat deemed not worthy of coverage. Unfortunately, given our own involvement in the issue (and the bombardment of your author’s mind by an impending thesis and a graduation ceremony), we never reported on the case when it transpired.  The only contemporary coverage of the case comes courtesy of the Watchcat, as good a summary of a student government court case as any.

But with the case’s potential relevance in the outcome of this year’s presidential election, it will not do to sweep this under the rug a la SSF funding.  The text of the opinion can be read here; your author comes out of ‘retirement’ to offer a rather lengthy exposition/recollection below the fold.

The facts/background

Jarret Benkendorfer had previously needled the Elections Commission by allowing an interview to be published with our site before Commissioner Piscitello granted permission for the circulation of policy ideas. This appeal, however, addressed a subsequent violation, docked when his campaign manager sent out a Facebook message encouraging voters to select Jarrett Benkendorfer and Deanna Mariner for Senate. This was viewed by the Elections Commission as a violation of §8-1.01 of the 2010 Elections Code, which stated that, “Only one candidate’s name may appear on any piece of campaign material as defined by this code.”

Benkendorfer’s Argument

1. The Constitution applies to ASUA. For once, this is not an attempt at snark. The applicability of state and federal law to student governments remains muddled. ASUA’s attitude towards FERPA suggest that its adherence to open-meeting laws are merely a choice, and could be revoked by the organization at its discretion.

However, in Wong v. Elections Commission (1994), the court ruled that the rights guaranteed through the Due Process Clause of the Fourteenth Amendment apply to candidates in ASUA elections as well. For aspiring Constitutional quasi-scholars, this is basically the doctrine of incorporation, applied to a university substructure rather than to state governments.

2. The Fourteenth’s due process guarantees the First Amendment right to assembly. Although this right was first incorporated in DeJong v. Oregon (1937), for this argument we cited NAACP v. Alabama (1958) which dealt explicitly with expressive association – the type of association in question here. From Justice Harlan’s opinion for the unanimous Supreme Court: “Freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the “liberty” assured by the Due Process Clause of the Fourteenth Amendment.”

3. To restrict such a constitutionally protected liberty, the restriction must survive strict scrutiny. Very crudely, there are three main standards of review for government restrictions. Generally, restrictions are held under a “rational basis” standard – so long as the government has a logically coherent reason for its law, it will be upheld. Note that legal rationality often differs from general rationality. When these restrictions apply to “fundamental rights” – imperfectly defined, but of which the Bill of Rights are definitely a subset – they are subjected to a standard of “strict scrutiny.” From the language of the famous Footnote Four of United States v. Carolene Products Co. (1938) (your common law, at work), this standard requires such restrictions to (1) address a compelling government interest; (2) must be narrowly tailored (not be over-broad); and (3) must be least restrictive means of addressing that interest.

Assembly is a First Amendment right, so its status as a “fundamental right” is basically given. If there were any doubt, however, the opinion in Illinois State Board of Elections v. Socialist Workers Party (1979) states explicitly that, “the right of individuals to associate for the advancement of political beliefs” is a distinct and fundamental right, guaranteed under the Due Process Clause of the Fourteenth Amendment.

4(a). The ASUA Elections Commission does not have a compelling interest. There are two main interests we addressed:

i) Ensuring a “smooth election.” Yes, that deplorable and lawless clause. The argument would run something like this: the Elections Commission needs a wide breadth of discretion in making sure the election runs as smoothly as possible (even if they fail exceptionally in that goal year after year), and that may or may not include an outright ban . Either way, it’s not for the Supreme Court to question this sort of administration.

We attacked this by citing the opinion where the Elections Commissioner most recently used this argument: Martinez v. Ellison (2007). In that case, Elections Commission David Martinez III sought to prohibit Senate candidate Ryan Ellison (full disclosure: a good friend of many years) from using the nickname “Wilbur” on the ballot. Ellison candidly admitted that the nickname was adopted “to group together certain candidates,” effectively providing a slate on the ballot (a privilege not even extended under the current slate system). Yet the court found that, “[t]here is no support for the proposition that restricting the use of the nickname was necessary to ensure the smooth running of the election.” If potential collusion on the ballot wasn’t a sufficiently substantial threat to smooth elections, then preventing collusion of candidates in the public forum beyond the ballot certainly don’t rise to such a level.

ii) Preventing candidate collusion. Alternatively, ASUA might claim that it has a compelling interest to prevent candidate collusion per se, beyond merely running a ‘smooth election’. Seeking to ensure as independent an election as possible requires candidates to stand on their own footing. Candidates should be supported . Nonpartisan ballots are maintained in many constituencies, and in the spirit of Federalist 10 ASUA seeks to keep elections as independent of factional interests as possible.

This is good and well, and definitively more compelling than a potential ‘smooth election’ claim. However, as this site’s FOIA efforts revealed, ASUA allows for the direct contribution of funds from one candidate to another, indicating that it has no such qualms so long as voters are not aware of such collusion.

Admittedly, a $15 contribution is hardly a game changer. But similarly, the issue at question in this case is not a wide-ranging partisan operation, but a single Facebook status. At question here is the overriding principle. Clearly, the principles of preventing candidate collusion are not a driving factor in ASUA’s regulation of elections.

4(b/c). The prohibition of joint activity by candidates is overly broad and is not the least restrictive means of accomplishing its interests. Arguendo that ASUA does have a compelling interest at stake here, imposing a blanket ban on any and all open collaboration among candidates is far from a specialized regulation addressed to cover those problems alone. Although our argument blended these elements together (chalk it up to legal amateurism), the ban is overbroad in its tendency to not just ensure “independent” elections on the ballot but to unduly prohibit the constitutionally protected rights of speech and assembly.

The best way to demonstrate that the current means are not least-restrictive are to propose alternative methods. ASUA could simply prohibit party identification on the ballot itself and randomize the names, as nonpartisan elections do. They could prohibit candidate-to-candidate contributions. They could require colluding candidates to register as parties, a la ASUC (and as they have done, in a somewhat underdeveloped fashion, with the slates).

The oral arguments

Mori’s summary of this aspect of the case is the go-to resource here. Consider the following reflections a participating party’s augmentation to his third-party account:

ASUA hadn’t had a dispute of substance since 2007 — before any of the current court members were appointed. It wasn’t clear whether the court’s special election rules were intended to supplant or to replace the Court’s general rules.

As a result, both sides were effectively speaking different languages. ASUA’s legal team (no, really) basically saw this as an open-and-shut case. The Code prohibited multiple names on campaign material; recent amendments considered Facebook as campaign material; both Benkendorfer and Mariner’s names appeared on the material. What dispute could there possibly be?

The author suspects that the moment the word Gitlow stumbled out of his mouth, a giant “WTF” descended over the entire proceedings. Bringing up an entirely unanticipated argument in oral arguments is bad form, and generally violates normal court procedure.

The problem is that there was no normal court procedure, indicated either by the election rules (which held here) or by communications with the court. A copy of the Election Commissioner’s brief was not made available to our side until after the proceedings; our side, meanwhile, didn’t even know that a copy of the brief was required or even expected, and ended up emailing the court a mere listing of the cases that we cited.

One small quibble with Mori’s report, which stated this:

Neither Lisull nor Abeln could provide examples in ASUA case law or situations on other university campuses that directly addressed regulation of student government election expression.

Mori might be referring to something else, but as I remember it the court, scrambling for something to discuss besides, “What we have here is a failure to communicate,” asked about these sorts of regulations at other campuses. Did other student governments impose these sorts of bans? Our side was adamant, given this site’s research, that no other school was so insane as to impose such a restriction. Poor Ms. Abeln, completely out of her element through no fault of her own, was likewise unable to come up with another example of this regulation  – after all, how could she have conducted research on other student governments without any sort of preliminary brief?

The result:

The Court, in a 3-1 decision, upheld the citation. This was not entirely surprising. What was surprising is that both the majority and the dissent agreed that strict scrutiny was the proper standard of review. This, alone, would suggest a victory for Benkendorfer: “strict scrutiny” has a reputation as “fatal” for a reason. (Despite the linked article’s conceit, note that speech restrictions are held up the least of any, a mere 22 percent of the time.) So it was frankly odd to see this regulation upheld under the three part strict scrutiny analysis in the majority opinion by Buzan, J.

The opinion first spells out the compelling interest at stake, which thankfully has nothing to do with “smooth elections” powers:

§8-1.01 is constitutional because the ASUA Election Commission has the compelling interest of ensuring that elections for ASUA are fair and democratic.  The statute ensures independent candidates a voice in elections by seeking to prevent unknown candidates from riding the coattails of more well-known candidates.  In other words, the statute is designed to prevent the so-called “big-ticket” problem that has often plagued ASUA political elections.

Yet nowhere in the opinion does Buzan provide evidence for this “big-ticket” problem, which this long-time observer of the organization (time artificially enhanced thanks to the Wildcat‘s archives) cannot recall ever being a problem. This, possibly, was brought up from Dang’s experience in ASUA, which, if true, would be epically rich.

Then, regarding the statute’s breadth:

We find it is narrowly tailored because the law does not prevent candidates from advertising their views, it merely prevents them from advertising with another candidate.  Also, the law does not prevent them from running together in other ways such as being endorsed by groups that can advertise together.

Here, perhaps, Buzan puts too much emphasis on the speech aspect of the First Amendment, rather than the association and expressive association. More pertinently for candidates, though, this second sentence provides a loophole wide enough to drive a truck through. Nothing, by this language, would prevent Benkendorfer and Mariner (or, perhaps, a friend employed as a stand-in) from forming a “Campus Coalition for Super-Change” group, compiling members from the other groups, and then ‘endorsing’ – shockingly – Benkendorfer and Mariner for Senate.

One hesitates to use the word “chilling” in anything involving ASUA, but the argument that this is not the least restrictive means is certainly disheartening:

Finally, there are no least restrictive means evident to achieving the Commission’s goal.  The Commission has only prohibited joint advertising.  This means candidates can still walk campus and stump together.  They can still advertise that they are affiliated with similar groups.  They can still advertise that they endorse other candidates in their role as voters.  They simply cannot advertise that they are running together.

Of course, this last sentence isn’t true as far as the literal language of the code – it merely says that there can only be one candidate name per campaign material, saying nothing about one’s status as a candidate or a voter. Perhaps, though, this is another interstate-sized loophole: just be sure to include the introductory phrase, “As a voter,” and no violation can be awarded.

The dissenting opinion, by Chase, J., basically put our argument in a far more rigorous language. It starts like this:

There are few rights as sacred as the freedom of speech. It is a right that has been protected since the founding of this country over 200 years ago. The Founding Fathers recognized the importance of free speech, especially that of political speech, to ensure the proper functioning of our democracy. There are few rights that have received as much scrutiny, and as much protection, as the freedom of speech. It is a fundamental right recognized by this court and the United States Supreme Court. Any attempt to infringe on this right deserves nothing less but the strictest of scrutiny. There are very few instances when a government entity, such as the ASUA Elections Commission, can impede the right of free speech.

It only gets better from there. If you’re sympathetic to the arguments made by this site, or speech issues generally, it’s well worth reading.

The upshot for Monday’s hearing:

So how relevant will this precedent be for Monday’s hearing? For fairly deplorable reasons, we have no idea. We do know that at least three of Hernandez’s violations came from cross-slate collaboration. Further, the implication of this argument stretches far beyond the mere facts at hand, and if applied and upheld could strike everything from the ban on pre-election speech to cross-slate collaboration, among others. Yet this also assumes that Allen and/or Hernandez will go after the very basis of the code, rather than simply quibbling over the facts on the ground and interpretation of defined terms. It’s also worth noting that the author of the opinion, Buzan, has since left the bench, reducing the majority to 2-1. At the same time, we do have this quote from incoming Justice Adam Dippel:

“I thought it was really interesting,” Dippel said. “I’m glad I did it. I don’t agree with Scalia too much, but I enjoyed his arguments. They were well made.”

Sigh. This is what speculation on opaque government looks like.

If the case does come down to the issue of collaboration among slates and otherwise, the recent provision of slates – effectively an admission by the legislature that the outright ban was poor policy – could cut either way. On the one hand, requiring political factions to go through registration processes is certainly a less onerous burden than banning them outright. On the other hand, it’s almost more ludicrous to permit to association of individuals, but only at one point in the political process.

An only somewhat-related conclusion: don’t rule out a very political ruling. This is largely a political crisis, rather than a legal one, akin to the controversial Bush v. Gore case. If you look to the Wong/Trujillo controversy from 1994, the ultimate result was characterized by the Wildcat as a deal, in which Wong basically dropped his dispute in return for the equivalent of reconsideration of the code and an apology. Chief Justice Dang is no stranger to ASUA politics, and all parties involved are interested in the survival of ASUA as an organization. Special elections tend towards the farcical, and it might be far better to deal with the short-term controversy of an court-anointed President than risking an “adverse” result from such a campaign.