Good Kos Diary: Legal Analysis: Why Ickes is Wrong & Should Resign

[BlooInBloo]

http://www.dailykos.com/story/2008/6/1/72643/08080/210/526590

In this diary, I will constrain my commentary on the outcome of yesterday’s RBC meeting to the controversial and inflammatory statements presented by Harold Ickes which by his own admission were made expressly on behalf of Senator Hillary Clinton and therefore in direct conflict with his role on the committee.

While there are numerous other diaries on this and related subjects, a cursory glance at my diary history will show that I have considered these issues on a number of occasions based on careful analysis, and hence feel justified in contributing a further response.

1. The Constitution does NOT apply

2. The Rules & Bylaws Committee did NOT determine the delegate allocation

3. Any bias was in Hillary’s favor

4. No votes were "stolen"

5. The Principle of "Flawed Reflection"

6. Credentials Committee Challenge

7. Validity of the Election Sanction by the State of Florida

8. Conflict of Interest

Analysis in full below:

Details at the link. An excellent read.

[K Gardner]

1. Wow.. this is an EXCELLENT summary. For one thing, it explains the "half vote" concept

by outlining exactly how that affects the delegate count. It should be required reading for anyone TRULY wishing to discuss this issue and not just sling talking points. Thanks for posting it, Bloo !

[BlooInBloo]

5. People seem to especially not understand the 1st amendment freedom of assembly right, imo.

[hokies4ever]

7. I love the point about no delegates being stolen from Hillary

and completely agreed. As soon as I heard Ickes whine about delegates being stolen, I asked myself how can they be stolen if they hadn't been given to her yet.

I think the '4 stolen delegates' issue is a good one for the Dem Party though. This puts the onus on Hillary to make a decision about the race. Now if she wants to take it to the floor of the Convention, she has the excuse that she needs to do it. It will just be an excuse though, because 4 half-vote delegates will not decide this nomination. It's just 2 delegates when she's down by almost 200. So now everybody will be able to see after the mass numbers of supers come out next week if she is in it for the Dem Party or just in it for herself. It's just stupid to take it to the Convention over 2 delegates.

[4themind]

2. This may need to be sent to every major media outlet.-nt

[K Gardner]

9. Lets not confuse them with FACTS.. :-)

[BlooInBloo]

11. In their minds, it's not their job (seriously)....

http://www.salon.com/opinion/greenwald/2008/05/29/yellin/index.html

After explaining how proud he is of his support for the attack on Iraq, Igantius explains why there wasn't much challenge made to the Administration's case for war (h/t Ivan Carterr):

In a sense, the media were victims of their own professionalism. Because there was little criticism of the war from prominent Democrats and foreign policy analysts, journalistic rules meant we shouldn't create a debate on our own. And because major news organizations knew the war was coming, we spent a lot of energy in the last three months before the war preparing to cover it.

...

The idea that journalists only convey statements from politicians rather than "create debates" is the classic Stenographic Model of "Journalism" -- "we just write down what people say. It's not our job to do anything else." Real reporting is about uncovering facts that the political elite try to conceal, not ones they willingly broadcast. It's about investigating and exposing -- not mindlessly amplifying -- the falsehoods and deceit of government claims. But our modern "journalists" (with some noble exceptions) don't do that not only because they can't do it, but also because they don't think it's their job.

...

Thus, three of the most influential voices in the Democratic Party -- arguably the three most influential at the time -- were vehemently opposing the war. People were protesting in the streets by the hundreds of thousands inside the U.S. and around the world. In the world as perceived by the insulated, out-of-touch and establishment-worshiping likes of David Ignatius, Brian Williams, David Gregory, and Charlie Gibson, there may not have been a debate over whether we should attack Iraq. But there nonetheless was a debate. They ignored it and silenced it because their jobs didn't permit them to highlight those questions. Ask Jessica Yellin. She'll tell you. She just did last night.

[K Gardner]

19. Wow... thanks for posting this. Incredible. n/t

[habitual]

3. K&R n/t

[ecdab]

4. Ickes is an order one political hack - this is the kind of politics voters

have been coming out in droves to vote against this year.

It didn't surprise me that Ickes could look into the American peoples eye and speak false words. The man is a disgrace.

[BlooInBloo]

8. It is astonishing no matter how many times you see that from his type.

[crispini]

6. Lookin good!

[Spazito]

10. Excellent summary!

Thanks for posting the link.

Recommended.

[BlooInBloo]

12. Shameless kick 1 of 2.

[BlooInBloo]

13. Shameless kick 2 of 2.

I fail :(

[Skidmore]

14. Unashamed kick and rec.

[suston96]

15. Do you agree that the US Constitution does not apply? nt

[Shakespeare]

17. These are party rules for a party primary. No, the Constitution does not apply.

The party has very clear rules for dealing with the situation we were faced with, and those rules were applied correctly yesterday.

[suston96]

20. Are you saying that the US Constitution does not apply to party primaries?

[Shakespeare]

22. What part of the Constitution are you suggesting has been violated?

Please be specific.

[suston96]

24. Violated? I dunno. The assertion is that the Constitution does not apply -

- I am understanding that means the Constitution does not apply to primaries and therefore, to political parties.

[Shakespeare]

25. I think you're misunderstanding. It's not unlike the faux argument on this site...

...about the admins not honoring the first amendment. This is a private site, and the first amendment does not apply. It's not that the admins don't believe in the first amendment, it's simply an irrelevant association.

[BlooInBloo]

18. The First Amendment right to Freedom of Assembly OF COURSE applies. That's the point.

[suston96]

21. First Amendment? OK. Anything else?

[BlooInBloo]

23. Uh... how much is needed exactly?

You're of course welcome to read both judges' opinions yourself. The cases were open-and-shut.

[suston96]

26. The fact that the political parties extended "the privilege" of selecting the nominee ......

....to the voters in each state and territory through primary elections triggers in the voting rights protections of the federal and state constitutions and voting rights laws.

Flip a coin? For the Presidency and the Congres of the United States or for the executive officers and legislatures of states? Absurd, and a violation of the rights of citizens to select and control their own governance.

But let's get back to the US Constitution and primary elections.....

Try the Twenty Fourth Amendment to the US Constitution....What does that mean?

Section 1

The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.

How does that Amendment fit in with the US Constitution implying protection of voters in primary elections and therefore, protecting members of political parties?

[BlooInBloo]

28. Uh.... was there a poll tax anywhere?

[suston96]

29. Poll tax? Does it matter? The fact is that the US Constitution applies to a primary election.....

The fact is that an amendment was passed to cover a primary election along with the other elections........

Here is the Fourteenth Amendmnet:

Section 1

...... But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age,4 and citizens of the United States, or in any way abridged,

Get it? ...at any election..." and ...or in any way abridged...." Oh, and the "choice for electors" starts with state primary elections.....doesn't it?

The US Constitution IS relevant to primary elections.

Ever hear of the "Texas White Primary"?

white primary

A method of electoral discrimination against African-American, Latino, and other minority voters widely used in the South until the U.S. Supreme Court intervened in the early 1940s. States and party organizations previously had great leeway to set their own rules regarding participation in primary elections which nominate party candidates. In the South which was overwhelmingly Democratic, victory in the primary was tantamount to winning the election. To preclude minority political participation, segregationist authorities imposed a variety of discriminatory rules on voters such as limiting voting in primary elections to whites only.

http://texaspolitics.laits.utexas.edu/glossary/index.php?term=white%20primary

Follow other links there to actual decisions regarding Texas State Primaries.......

[BlooInBloo]

30. "... by reason of failure to pay any poll tax or other tax" - You cited it, not me....

I'm sorry you cite amendments that aren't relevant to the case at hand too - don't blame me for that though.

Nobody's right to vote was abridged. Everybody was allowed to vote. No poll taxes were in place. So all right-to-vote rules were satisfied.

Now there's the First Amendment, which expressly permits private clubs to choose their own leaders, free from government interference.

[suston96]

32. The point is that the US Constitution applies to primary elections -

- that means that any election, including primaries, are subject to constitutional and voting rights protection.

Court cases can and have been overturned. Did you read the Texas White Primary case?

In response the Texas Democratic state convention adopted a resolution banning African Americans from participating in the Party's primary. Against the advice of the NAACP private citizens in Houston promptly challenged the resolution in court. In Grovey v. Townsend (1935) the Supreme Court unanimously decided that the Democratic Party was a private organization whose state convention could determine membership qualifications. Later, these same Houstonians – this time working together with the NAACP – fought back, bringing the case of Lonnie E. Smith, a Houston dentist, to the U.S. Supreme Court.

In Smith v. Allwright (1944), eight justices on a Supreme Court with several new members overturned the Grovey decision. The majority concluded that several state laws made the Texas primary more than just a function of a private organization. Instead, these laws made it an integral component of the electoral process. As a consequence, the court ruled, it was unconstitutional to prohibit African Americans from voting in the Democratic primary, including votes for party officials.

[BlooInBloo]

33. And nobody was prohibited from voting.

[suston96]

36. Their votes were not counted like votes in the other states and territories -

- they counted for half. Sounds like Fourteenth Amendment violations and maybe Voting Rights Acts.

[BlooInBloo]

38. And judges have repeated ruled that the violation you imagine just doesn't exist.

[suston96]

40. Judges are overturned all the time. nt

[BlooInBloo]

41. Only if "all the time" means "infrequently".

[cliffordu]

42. lol.

Nice!!

[suston96]

46. I prefer "all the time" and I never use absolutes...... nt

[BlooInBloo]

48. Yes, it's already abundantly clear that you prefer falsehood.

[suston96]

50. What falsehood?

[stillcool]

45. Their votes were not cast...

in the Democratic National Primary to select a nominee. The State Democratic Party, in those two states, made sure that they would not be included in the process. Their votes did count as they were cast in the 'state election'.

[BlooInBloo]

47. Hell - they weren't even cast with the *expectation* that they would be used for *anything*.

[Spider Jerusalem]

31. That refers to poll taxes.

And political parties are not obligated to select their nominees through a primary process. The US Constitution doesn't enter into it.

Relevant law: USSC decision in Democratic Party v Wisconsin, 1981, which states 'Wisconsin (and by extension, ANY OTHER STATE) cannot constitutionally compel the National Party to seat a delegation chosen in a way that violates the Party's rules.' This is a matter of what is known as settled law.

[suston96]

34. The point is not the "poll tax". The point is that the Constitution applies to a primary.....

....and to a political party.

The inference strongly suggests that the Constitutional Amendments and the Voting Rights Acts they generated apply to ALL elections INCLUDING primaries.

About that 1/2 a delegate outrage .....

Primary voters in Michigan and Florida do not have the same voting power as the other 48 states and territories. That may be a Fourteenth Amendment and Voting Rights Act problem.

[Spider Jerusalem]

37. Did you read what I posted?

The party sets the rules of the primary. The US Supreme Court has ruled that there is NO constitutional compulsion to seat a delegation selected in a manner that violates party rules (Citing free association as protected under the First Amendment in doing so, I might add). A primary that is not sanctioned by the party (as neither Michigan's nor Florida's were) clearly violates party rules. It is NOT a Voting Rights Act issue, it is not a Fourteenth Amendment issue. There is no argument there. You don't have any idea what you're talking about, and worse yet, when presented with something that shows what nonsense you're spouting, you cling to your ignorance. But you are WRONG.

[BlooInBloo]

49. We don't think YOU read what YOU posted.

EDIT: A bit presumptuous with the "we", of course.

[Spider Jerusalem]

51. Er...I'm confused.

[BlooInBloo]

53. Ooops - no you're not. *I* am! Or was....

lol - my bad - I lost track of who was saying what.

:blush:

[TheDoorbellRang]

35. Here is the more pertinent argument re Constitution

Ickes’ and Clinton’s arguments rely on asserting the principles enshrined in the constitution. However, scholars of the constitution will be aware that there is no explicit "right to vote". The constitution does however explicitly assert that no-one should be prevented or influenced not to vote.

Hence, if the argument is that the validity of the MI & FL elections are determined by constitutional principles, the MI & FL elections must be invalid in their entirety. The only constitutionally valid alternative would be to hold a full revote.

The entire imflammatory rhetoric being slung around by the Clinton campaign over the Florida and Michigan vote reveals either legal ignorance or willful deceit on their part -- in either case, not characteristics we need in a new administration.

[suston96]

39. There was no "right to vote" in the Constitution originally....but.....

.....start with the Fourteenth Amendment and you will see how many amendments are based on the "right to vote".

Then comes the Fifteenth, the Seventeenth, the Nineteenth, the Twenty Third, the Twenty Fourth, the Twenty Sixth.

Seven amendments having to do with the right to vote followed by a number of voting rights acts based on those amendments

There is no "right to life" in our federal constitution either. What are we to conclude from that?

[TheDoorbellRang]

56. Constitutionally, it would be more logical to demand the complete disqualification

of the primary vote in FL and MI, as the vote was obviously suppressed by telling potential voters that their vote would not matter.

But as state delegate selection by a political party does not legally or constitutionally have to be determined by voter participation, the Constitution does not enter into it.

[Shakespeare]

16. I'm not sure who's the bigger douchebag--Ickes or McCauliffe.

I've pretty much had my fill of both of them. x(

[cliffordu]

44. Is Jim Carrey their love child??

[ORDem]

27. knr

:kick:

[wiggs]

43. I'm thinking the democratic party is more involved than we know in convincing

enough superdelegates to announce Obama support before the RBC meeting. I think Obama "gave" quite a lot yesteday....but if the delegate count had been closer he would not have been so generous. Had he not been so generous, the RBC meeting would have been a lot more difficult.

I think this is a carefully crafted way out of a giant mess...maybe the only way out, and it was necessary that one candidate be ahead enough for a solution to work.

Further evidence of the cleverness of the meeting was the article's point that Ickes should NOT have been allowed to vote or participate since he stated he represented his client at the meeting. This is a conflict of interest and is not allowed by rule. He was allowed to participate, knowing that a vote for this solution was a done deal, so that the overall result appears more balanced. Again, as the article points out, any bias in the meeting was made for Clinton.

Nice article.

[mystieus]

52. Good read. Ickes tried to make it a "us vs them" argument, when its not like that at all

[slinkerwink]

54. excellent post!

[BlooInBloo]

55. :) I've heard there's a few smart folks over there...

:P

[slinkerwink]

57. oh, it's more than a few smart people at Dkos :-)