Chet Zarko isn’t the most popular person here, being a Republican: but he can be right once in a while, like anyone else. For example, he’s opposed the graft of voter lists, their being given as a free gift to the MDP and MRP bigwigs; and in this he is closer most to most Mich Lib bloggers, AND the Democratic Michigan Supreme Court justices (!), than to Saul Anuzis…or Debbie Dingell.
Also, he does win stuff sometimes (like MCRI–boooo), so may have to be taken seriously whether you like him or not.
Anyway, Chet on his “Outside Lansing” blog published four diaries commenting about Mark Grebner’s failed lawsuit versus the voter list grab. (He insults Mich Lib there, too! so grit your teeth as needed if you scan the diaries.)
In Mark Grebner to sue Michigan for Deal to Secret Away Election Records, Le Chet notes,
…The Parties cut themselves a special deal and wrote into law an amendment to the election code that secreted away election data and gave it to the private political parties before ordering the government to destroy it and exempting it from FOIA for everyone else.
It’s plainly a violation of the equal protection clause and a sweetheart deal for the parties, and we should resist such deals for a thousand good reasons. …
Then, in the short diary Grebner-Primary Hearing Today at 1:30, Zark sez,
…Important case. Not only is the January primary hinging on it, but the equal treatment for public records rides on it. …
The next, more substantial diary, Court of Appeals Decides 2-1 Against January primary – Why they were right., opines,
…I will comment on that dissent more because it illustrates two points I think are important which the lawyers in this case did not argue effectively (granted, the case was argued on short notice). …
While Grebner apparently did make a “vague First Amendment argument” (vague according to the dissent and Circuit Court, which did not rule on it), he does not appear to have made an equal protection argument, something I suspect could have been made at least as well as a vague First Amendment argument. Indeed, the concept of “viewpoint neutrality”, a concept that has roots in both the 14th and 1st Amendments, is clearly implied by Whitbeck’s dissent – which acknowledges that public property is being used for private purposes, but argues that the parties are also engaged in public purposes as well (which is the flaw in his reasoning, in my opinion). …
The majority comes to the opposite – I believe correct conclusion – by noting that the primary motivation and effect of the special deal provision of the law giving the parties and only the parties access to voter lists is the private benefit the parties will receive, not the “incidental” public benefit that may accrue from the parties using the lists to communicate (in their own biased ways, of course) with voters about candidates and ballot questions. …
…the law on its face violates the Fourteenth Amendment Equal Protection Clause, specifically by exempting records under FOIA only for certain people and allowing other people access to the same records. Since the public purpose of FOIA is to protect citizens from the harms of secret government, a law that grants access to some and not others unequally protects some citizens over others. …By exempting FOIA specifically, but allowing two persons (the two party chairs) to become part of a new category of persons with special access to records, the law raises that issue. …My concern is that all individuals – all persons – have the same rights and abilities to engage on issues, candidates, and general speech. …
…Whitbeck [who voted to uphold the law] simply doesn’t appreciate the damage to the primary process centralized control could cause if an authoritarian like Brewer used the information as a wedge (one wonders if Democratic list-broker Mark Grebner was speaking from experience or first-hand knowledge, but just unwilling to say it was experience because Brewer is simultaneously his client and competitor), and even though I like Saul there’s always room for accident and bias even with good intentions. …
And finally, in the pointedly titled Michigan Supreme Court Rules for Primary – Reveals Fatal Legal Failure by Grebner Attorneys, CZ puts forth,
…We also noted then what we saw as a weakness in Grebner’s initial legal arguments and strategy. He failed to articulate these arguments, and although the Court of Appeals records suggests that he made a “vague” First Amendment argument in the Circuit Court, they did not rule on that issue.
Well, what’s the punchline from the Michigan Supreme Court ruling today. OL quotes the final paragraph:[Chet’s blockquote]
(O) This order addresses only the question whether MCL 168.615c violates Const 1963, art 2, § 4 and art 4, § 30, the only issues addressed by the lower courts. In particular, this order does not address the validity of MCL 168.615c under any other provision of the federal or state constitutions, and it does not address whether MCL 168.615c is inconsistent with any other provision of federal or state law. [end of Chet’s blockquote]That appears to be a wide open door for someone to drive a legal challenge through, and is almost exactly in line with the arguments we made last week. …
Ouch. …Chet is not a lawyer, to my knowledge; but Grebner did fail (the Republican “Gang of Four” on the Mich. Supreme Ct. aside), so maybe Zarko makes some sense here.
I disagree with Chet’s conclusion, though,
The most democratic outcome in this case would actually be for the primary to occur (a democratic & open vote, rather than party caucus) and an injunction following the primary requiring equal access to the list.
Given the number of Democrats thinking of boycotting the DNC-rulebreaking primary, not to mention the chance of absentee voters including soldiers abroad and seniors not getting their ballots on time, I’m not sure about the “democratic & open vote”. Also, the lists may be tainted by huge numbers of “Democrats for Ron Paul for a Day”.
In addition, if Grebner or someone else didn’t file a federal court suit until after the primary, or filed it beforehand but without asking for expedited/emergency consideration, Grebner might look as if he were “sleeping on his rights” or otherwise half-hearted, and the court might be disinclined to grant his wishes. (After all, he filed the state court suit fairly early on; if he has such confidence in his claims, why would he wait overlong to file a federal court suit, unless he now doesn’t really believe what he’s saying??)
Conclusion: Chet Zarko has laid out some avenues for Grebner, or those who can take up his claims, to attack the voter list graft in federal court. Now that there’s a suit against the state and the MDP, as frontpaged at Mich Lib yesterday, to inspire other Democratic activists, can we see if Grebner is capable of learning from some of his own failures and crafting a successful and timely suit against the voter list graft, or not? It is always nice to see people who are capable of learning, but it’s up to them to show that they have learned.