In terms of bizarre twists, last week, a lawsuit was filed in United States District Court for the Central District of California – entitled Delegates To The Republican National Convention vs. Republican National Committee [SACV 12- 00927 DOC (JPRx)]. The Paul campaign is keeping its distance for good reason – it is a very flawed suit. The United States District Court Judge in this action is David O. Carter, a no-nonsense judge and a former prosecutor.
While the Republican delegate selection process is coming to a conclusion and actual delegates are becoming named, the preference of these delegates – save where the candidate chooses his or her delegates – is not fully known. To avoid harassment of its supporters, the Paul Campaign has instructed its delegates not to state their preferences. In certain states this strategy has leaked out: Colorado, Louisiana (at the congressional district level), Massachusetts, Nevada, Oklahoma (at the Congressional District level) and Virginia being the prime examples. For the rest, mum apparently is the word.
This litigation is a stretch to begin with. But a number of the individuals alleging to be delegates and Plaintiffs are not in fact delegates.
The substance of the lawsuit strings together references to not necessarily interrelated federal statutes and regulatory definitions to argue that certain federal provisions invalidate state statutes and that state party regulations bind delegates.
As a matter of law, the right to vote for national officers is a privilege and immunity of national citizenship under Section 1 of the 14th Amendment and thus is subject to congressional enforcement under Section 5 of the 14th Amendment. Moreover, other provisions of the Constitution refer to national voting procedures, not the right to vote itself.
As such, per “The Necessary and Proper Clause” (also known as the Elastic Clause, the Basket Clause, the Coefficient Clause, and the Sweeping Clause) to wit, Article One of the United States Constitution, section 8, clause 18 provides that “The Congress shall have Power – To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” Accordingly, Congress clearly has the authority to enact legislation barring “state binding” procedures so long as the first amendment is respected. It is not clear that Congress exercised that authority.
More importantly, almost all the Plaintiffs are not in fact delegates. The reason the suit was filed in California was to establish local venue for California based attorneys. However, all of the California “delegate” plaintiffs were never elected as delegates. There were Ron Paul listed delegates with the California Secretary of State, but no Paulites were actually elected from California. In California, Governor Romney listed all his selected delegates, pursuant to the California Elections Code. In fact, one of the 3 “delegate” plaintiffs was not on any list.
In the case of delegates named from Arizona, the entire Paul slate, save for 3 possible delegates, were rejected at the Arizona State Republican Convention. Apart from maybe three mentions, all listed delegates are not bona fide plaintiffs. In the case of an alleged Alabama delegate, that delegate is not listed as a delegate by the Alabama Republican Party in its submission to the National Republican Party.
That leaves as potentially viable plaintiffs two individuals from Alaska, perhaps 10 from Georgia, one from Louisiana, two from Massachusetts, three from Michigan, maybe one from South Carolina, one from New Jersey, and three from Nevada. Several other delegates, if they are indeed delegates, are from unbound states and as such they have no complaint. This also means most of the state party defendants are not proper defendants – including the California Republican Party.
There are only two clearly elected Paulites, Renato D’Amico and John McKeon from Massachusetts, as bona fide plaintiffs. Both D’Amico and McKeon are Romney bound delegates from Massachusetts 7th Congressional District. Any federal action should have been brought forth in Massachusetts, where the “Loyalty Oath” was directly employed.
While the federal courts may have jurisdiction, this Central District Court having venue is another matter. The Central District Court venue is also very important. In fact, last year Congress passed and President Obama signed into law, the Federal Courts Jurisdiction and Venue Clarification Act of 2011 which clarifies the jurisdiction of the federal courts and rules governing venue (whether the case should be heard in state, federal, or another court). Venue simply does not lie in Judge Carter’s court.
Assuming competent RNC Counsel gets involved, the following is likely to occur.
To begin with, pursuant to the Feral Rules of Evidence 201, Judge Carter will take judicial notice of the fact that there are no true California plaintiffs and probably no plaintiffs from almost all of the states and ergo improper defendants. That being the case, there is no venue for this action in the Central District of California.
It is likely that competent counsel will immediately bring two motions. The first motion is a motion for change of venue pursuant to Federal Rule of Civil Procedure 12(b)(3) seeking a change of venue – probably to the United States District Court of Massachusetts. That venue motion may well be coupled – depending on Judge Carter’s courtroom procedure and the tactical views of the RNC’s counsel – with a discrete motion to strike a plethora of allegations from the complaint [including named plaintiffs and defendants] pursuant to Federal Rule of Civil Procedure Rule 11 and 12(f).
They may also seek monetary sanctions against plaintiff’s attorney Richard C. Gilbert. The reason for these monetary sanctions is per Rule 11(b) by presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: (1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; (2) the claims, defenses, and other legal contentions are warranted by existing law or by a non-frivolous argument for extending, modifying, or reversing existing law or for establishing new law; (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information. Putting aside the merits, most of the Plaintiffs are not who they say they are.
Pursuant to the Federal Rules of Evidence 201, Judge Carter will take judicial notice of the fact that there are no true California plaintiffs and probably no plaintiffs from almost all of the states and ergo improper defendants. That being the case, there is no venue for this action in the Central District of California and will ship it to Massachusetts. He is also likely at a minimum to strike 90% of the allegations of the complaint if requested at least as to parties, and may in fact start the monetary sanctions process. Given Judge Carter’s no nonsense demeanor, this action will be moot very quickly.