Timing may sink lawsuit aimed at Strip voting

By David McGrath Schwartz

Wed, Jan 16, 2008 (2 a.m.)

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Not all votes in a caucus are created equal, and Nevada’s Saturday contest is no different.

But that doesn’t mean a legal challenge to stop the party from holding special precinct meetings for Strip workers will succeed.

The lawsuit seeking to block the Democratic Party from having caucus sites on the Strip faces significant legal obstacles, election law experts said Tuesday.

U.S. District Court Judge James C. Mahan is to rule on the lawsuit Thursday; his decision could reverberate throughout Nevada and the national political contest.

A doctrine allows courts to throw out a challenge if the person bringing it has unduly delayed taking action, to the detriment of the opposing party.

Called the doctrine of laches, “it gives the court the power to say, even if a suit has merit, you’re bringing it up too late,” said Richard Hasen, a professor specializing in election law at Loyola Law School in Los Angeles.

It appeared that the plaintiffs, another legal expert said, “just waited too late in the day to entertain these types of issues.”

The doctrine is meant to prevent last-minute litigation when rules could have been challenged earlier, said Edward B. Foley, professor of law at Moritz College of Law and the director of the election law program at Ohio State University.

“The court is likely to ask: Why couldn’t they have brought this sooner? Why is it filed now?”

Supporters of the lawsuit have said they didn’t become aware of the caucus rules until recently, though the rules were passed by the state party in March.

Mark Ferrario, attorney for the five Democratic Party activists and the Nevada State Education Association, did not return calls for comment. But in his motion seeking a temporary restraining order, he argues that rules posted on the state party’s Web site are marked “draft.”

Even if the judge discounts the timing, Foley said, courts have largely given wide latitude to parties to come up with their own rules.

“This is arguably an internal party matter,” he said. “Case law from the U.S. Supreme Court gives considerable deference to parties.”

In addition, the principle of one person, one vote in the U.S. Constitution could prove a problem to the challenge. That’s because the Nevada contest is a caucus, in which votes already are weighted differently.

“Is it applicable to a caucus? That’s a big issue going to the merits of the case,” he said.

The legal brouhaha has highlighted unhappiness within the party over the rules. Sen. Hillary Clinton and her husband, former President Clinton, have blasted the caucus process because people can’t participate if they’re in the military serving overseas or can’t get off work. And the plaintiffs have asked why the party made special provisions to allow Strip workers to caucus while others will find it more difficult to participate.

Kirsten Searer, spokeswoman for the state party, said the special allowance was made because there is a great concentration of workers on the Strip.

“Nevada was chosen for an early caucus because of ethnic, geographic and economic diversity,” she said. “These people otherwise would be unable to caucus.”

She pointed out that getting on and off the Strip on a busy weekend would make it problematic if not impossible for them to participate without special sites.

But the lawsuit cites examples in which those participating in at-large precincts would have their support mean more than in normal caucus precincts.

Clearly, a primary is more straightforward and balanced in the way votes are counted. In the caucus process, the winner is chosen based on the number of delegates each candidate gets, not the number of supporters. And besides complicated math for those Strip caucus sites, rural support is more heavily weighted than urban.

The state briefly flirted with holding straight primaries.

Nevada held one in 1976 and again in 1980. But the 1980 primary cost more than the state expected, and to save money, the state decided not to continue holding primaries. Instead, parties would have to hold contests -- and pay for them, according to Dennis Myers, an editor of the weekly Reno News & Review who has written extensively on Nevada’s caucus history.

Searer defended the caucus process as good for Nevada’s Democratic Party in the long run. She said the caucus has excited grass-roots organizers, so the state now has more registered Democrats than Republicans.

“I’m not sure we would have flipped voter registration and recruited volunteers in all our precincts if we did not have a caucus,” she said.

Discussion: 26 comments so far…

By slbk

1/16/08 at 5:57 a.m.

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Three days after a union endorsement isnt too late. The culinary should have been obliged to stay neutral if these cuacus sites were going to be at their workplace. The teachers union is neutral. This law suit is not too late the endorsement of the union was.
By Hope

1/16/08 at 6:14 a.m.

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You can bet that if Clinton had received this backing that suit would have never been filed. Her supporters in the teachers union decided to jump on it with help, to be sure, from the campaign albeit quietly.

The court would be correct in throwing out the suit because of timing. The locations were announced some time ago and if anyone was unhappy then they had plenty of time to take action. The state and national parties agreed on this ages ago. Now the game doesn't go their way and the Clintonistas throw it at a wall. Shame, but very much in character.
By NVMojo

1/16/08 at 6:46 a.m.

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If Clinton could have controlled all the hearts and minds of everyone in Nevada, this suit would not have happened. The Borg has failed.

And I'm tired of the mainstream media picking her as the top winner for me.
By Matthew

1/16/08 at 6:54 a.m.

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The casino caucus sites are not necessary and are clearly undemocratic. Late timing of the complaint shouldn't matter as many people are just now seeing what schemes are being set up. Besides, why don't the casinos and unions just work out a way to get the workers to the caucuses. Consider Nevada Revised Statues 293.463 that requires employers to give PAID time off for employees to vote: "Nevada Employees are allowed one to three hours on election days to vote if they do not have "sufficient" free time outside working hours, depending on the distance between work and the polling site. Employees must apply for time prior to Election Day. Employers may designate the specific time employees may take."
By skywater

1/16/08 at 7:29 a.m.

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Mainstream media wants to see Clinton versus McCain. They want someone who is predictable and fits within the establishment. Why are there all of a sudden lots of black special commentators? I thought race didn't matter! Unfortunately for much of the nation it still does. And all too often I hear from women that they're voting for Hillary because they'd like to see a woman president! I thought gender didn't matter! Unfortunately for many women it still does. The question is will it matter in Nevada? Will you and I set aside our prejudices and consider candidates on their merits, their character, upbringing, what they've done both good and bad, and whether they're a leader? I know its hard, easy to get caught up in the drama, but I beg you to take the time to get to know the candidates before making your decision. Our nation is at a pivotal time, a moment where the stakes are high, the United States is beginning to bleed badly, global warming threatens, the planet is being over run with people. We're going to have to work together to keep our future bright.
By Michael

1/16/08 at 7:47 a.m.

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THANK YOU Dems for electing Hillary. As a REPUBLICAN, nothing makes me happier than seeing a Republican run against Hillary Clinton. NOTHING unites the Republicans more than Hillary Clinton and this will give us a GREAT chance of winning the general election. THANK YOU DEMOCRATS:) You picked the most experienced candidate in 2004 and we demolished him and we will do the same to Clinton. She will be no match to Hukabee/McCain or McCain/Hukabee or Hukabee/Guiliani ticket. People of the country want a fresh and genuine face and Hukabee is that face for Republicans and he can beat the old timer Clinton in the general for sure. Republicans will turn out in droves across the South once they see that Hillary is the opponent. Thank you Dems for electing Clinton! Go Hillary Go:)
By tracy

1/16/08 at 8:55 a.m.

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Once again, candidates, state officials and the DNC all agreed to this last year. Where was the teachers union then? It is just too suspect that they file the suit AFTER Obama receives the endorsement.

We should all be worried when a candidate is in any way related to the disenfranchisement of voters. I know some of you will say that the teachers union has stayed neutral but let's face facts, Hillary could speak out against this law suit, instead she is hoping they win the case and all of those workers are unable to caucus. Not good.
By lepush

1/16/08 at 9:19 a.m.

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This lawsuit is disgusting. The people who filed it are directly related to Hillary's campaign.

Obama is this generation's Robert Kennedy, and everyone knows it. If he doesn't win, America loses.

If the Dems pick Clinton - a REPUBLICAN will win.

COUNT ON IT.
By slbk

1/16/08 at 9:20 a.m.

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It should have been a condition of the workplace sites that the union involved remain neutral. Clearly voter intimidation will take place and anyone defending that isn't interested in voters rights They are interested in fixed voting favouring their candidate. Again the teachers union is neutral. The Culinary should have remained so. There are numerous other ways they could have ensured their membership could caucus, providing buses, modifiying shifts, etc. etc.

These polls should be shut down. The Culinary's endorsement changed everything. They were neutral until a few days ago. They should have remained so.
By markg8

1/16/08 at 9:25 a.m.

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Michael his name is spelled "Huckabee". Sheesh.

The judge ought to throw this suit out. The teachers union honchos acting as surrogates for the Clintons were fine with the Strip caucuses until Obama got the Culinary Union endorsement over Hillary and Edwards. Suppressing votes is a Republican tactic yet Hillary tried to suppress college student votes in IA and she's trying it again in NV.

That's not how we win elections. Dems need every voter and caucus goer we can get to decide our nominee because we'll need every vote we can get in November to build the kind of overwhelming victory required for the changes this country needs.

In yesterday's MI primary with no other major candidate on the Dem ballot Hillary got a lackluster 55% of the vote. "Uncommitted" got 40%. Facing that kind of opposition Bill got over 90% of the Dem MI primary vote in 1996 and Bush 90% of the 2004 Republican vote.

Hillary's showing was so poor, even with the support of top Michigan Democrats such as Governor Jennifer Granholm and U.S. Senator Debbie Stabenow in a state with high unemployment that should be solidly Democratic she drew 10,000 less votes than Romney, the Republican winner.

According to the exit polls a lot of Democratic and independent voters apparently stayed home or voted for McCain.

If Hillary wants to be our nominee she ought to be fighting for as many votes as she can get instead of trying to disenfranchise her opponents' voters. Judge Mahan throw this suit out.
By texex

1/16/08 at 9:32 a.m.

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Once again, people, this suit is NOT about fairness or any other red herring. It's about John Hunt trying to take over the Nevada Democratic Party. Not that I'm against anybody living or dead displacing Jill Derby but keep it in perspective here.

The suit will fail. But the bonfire is already raging and crosses are ready for Derby come the May meeting.

Now where did I put those logs....
By texex

1/16/08 at 9:51 a.m.

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Where's a WORKABLE link to the motion filed yesterday by the DNC on the suit?
By topsight

1/16/08 at 11:04 a.m.

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I sent similar emails to those 'educators' pressing this suit whose names I could find.

"Consider developing a course on how to suppress voting in Nevada caucuses"
By darrenjohnson

1/16/08 at 11:06 a.m.

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I am appalled that Hillary is pushing so hard to DENY our right to vote. This lawsuit to try and prevent more people from voting confirms my suspicions about her: she only cares about herself and power. She'll do whatever it takes, no matter who it hurts along the way. She only cares about people she can potentially step on on her way to power.

I say Obama all the way. Let's bring him the victory on Saturday. Let's get out and vote and show Hillary that she cannot suppress our vote and that we will not tolerate this type of selfish dishonesty any more! Go Obama!
By 9Leon

1/16/08 at 11:49 a.m.

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I find it a bit difficult to believe that the supporters/sponsors of this lawsuit “didn’t become aware of the caucus rules” when some of these same people were actively involved in this approving these caucus locations 10 months ago.
I also find it very hard to stomach Bill and Hillary encouraging individuals to break off loyalty to their unions. It all seems very disingenuous, since the Clintons have in the past professed to believe in union solidarity. The Clinton’s actions in Nevada have saddened me deeply.
By UnionGRL

1/16/08 at 11:53 a.m.

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Hillary, just go away...We don't want YOU!
By Nissl

1/16/08 at 1:03 p.m.

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So, slbk, Culinary should endorse nobody in one of the biggest political events in the state's history because... why? And the teachers' union is not neutral, their top ranks are filled with Clinton supporters, you know this. The timing of this lawsuit cannot be explained in any other fashion.

Heh, maybe Obama endorsers like Kerry, Napolitano, McCaskill, et al. should remain neutral too. Heck, Bill C. should remain on the sidelines for Hillary. I mean, nobody should be giving any candidate any support because they believe they're the best candidate, right?
By NevadaforRichardson

1/16/08 at 4 p.m.

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To change the rules at this late date means that shift workers would have to find out their new site, make arrangements for taking more time off work, possibly at a different point in their shift, change child care arrangements, and make transportation arrangements.

Sincere people would have addressed their alleged concerns at a much earlier date so that people could have time to plan -- not a few days before the caucuses and after an endorsement.

But then it is obvious to any reasonable person that we are not talking about sincere people here.

The transparency of this classic “Republican” voter suppression tactic is only eclipsed by the audacity of it.
By alexblack

1/16/08 at 7:43 p.m.

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I'm a Californian, and I'm laying down a gauntlet for you Nevadans. You have a front-runner for the Presidency of the United States who, upon discovering there are people who will not vote for her, immediately sends her surrogates out to try to change the agreed-upon rules in order to keep them from voting. And there are what, only ten of you bothering to read your newspaper and write a letter about it? Where is the outrage? Where are your friends, neighbors, and fellow citizens?
If anyone tried to do that here, there would not only be 1,000 comments to this article, there would be mass demonstrations (we get them all the time here :-) ). But this would be the biggest one yet. GET OFF YOUR BUTTS! You want a Democracy? FIGHT FOR IT!
Or are you going to all sit back and think it's not worth the trouble?
Well, if nothing else, please tell your friends how you feel about this, and get them all to a caucus to let their voice be heard there. Probably better than a demonstration - traffic is bad enough. :-)
Have a great caucus - do your country proud.
By seven

1/16/08 at 7:52 p.m.

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I'm hearing some very ugly things about the strong-arm tactics that the union heads are using against their workers--forcing them to sign cards, telling them not to show up to the caucus unless they plan to vote for Obama, etc. WHERE'S THE OUTRAGE ABOUT THE INTIMIDATION? Voter intimidation is not a way of "letting voices be heard." It's manipulative, ugly and undemocratic.

"Hillary just go away, we don't want you" reads one of the comments above. Another example of Obama's overzealous supporters who will do ANYTHING to win. Shameful, really shameful.
By gpoconnor

1/17/08 at 10:11 a.m.

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Chernan:

No one in the Clinton administration was convicted? Webb Hubbell, Hill and Hill's old pal from the Rose Law Firm, was convicted for stealing. Bill himself was disbarred by the State of Arkansas and by the Supreme Court for lying under oath.

Add to that the countless questionable events -- billing records disappearing and re-appearing, underhanded schemes to fire carred White House employees -- and lies that have been documented -- "I did not have sexual relations woith that woman" (Bill) -- "I made $100,000 trading commodities in just 9 months all by myself by reading the Wall Street Journal" (Hillary) -- "I have never ever thought about runnoing for President" (Hillary) "My husband is telling the truth and there is a vast right-wing conspiracy trying to bring him down" (Hillary) -- and you have a picture of venality and moral bankruptcy that has seldom been equalled in our history.

Other than that I have no strong feelings on the subject.
By eades

1/17/08 at 1:52 p.m.

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The judge's decision today to go ahead with the caucus as planned is great news. This lawsuit was a groundless waste of time, taxpayers money, and union members' dues: A last-minute attempt to change the rules so that the Clintons could have a better shot at winning. I hope they pay dearly for their arrogance and their insistent meddling. Go, Obama!
By ADR

1/17/08 at 5:59 p.m.

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Can someone tell me why Hillary is a viable candidate? Her experience and expertise are a paper thin illusion. All Republicans have to do is point to the division of the nineties and the impeachment and ask Americans if they want to go through all that again. McCain is the likely Rep. nominee-do you think America is going to put her in the White house over him?
By jfnikki

1/18/08 at 1:10 p.m.

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IM A UNION MEMBER,AND IM VOTING FOR HILLARY CLINTON.DONT WANT OBAMAS CHICAGO STYLE POLITICS IN THE WHITE HOUSE.
By jjk13jjk13

1/18/08 at 4:06 p.m.

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Lordy, Lordy, Lordy
Vote for Hillary Y'all.
We want to clean up.
McCain for Pres!
By unfair

1/19/08 at 8:39 a.m.

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it is unfair that only culinary workers are vote at the strip caucus. it is like a polling place that you have to go through and tell you. that you better vote for one candidate or other. you or your car will be hurt or damaged. A polling place is for all registred voters for all candidates not just one.

Las Vegas is like one of those foreign country. But it is legalized by judges who favor or payoff by the party