Legal challenge filed against Tancredo candidacy

The law firm of Hale Westfall, LLP, acting on behalf of plaintiffs (and Maes supporters) Marian L. Olson and Joseph Harrington, have filed a petition and motion with the Denver District Court arguing for Tom Tancredo and his running mate, Patricia Miller, to be deemed ineligible to run as candidates of the American Constitution Party in the 2010 election.

The petition and the accompanying motion calling for "the Secretary of State to recertify the ballot for the 2010 general election to exclude the names of Defendants Thomas Tancredo and Patricia Miller as candidates for the office of Governor and Lieutenant Governor, respectively, and to advise and instruct Colorado's 64 county clerks accordingly" are both presented below.

I've touched on some of the legal arguments in a prior note on these pages, but let's go over the concept again using the language directly from the plaintiff's motion and petition.  I'm going to simplify so I encourage those who enjoy reading legal documents, especially short ones, to read the petition and motion yourself.

First, it's a given that Tom Tancredo (and we need not spend time discussing Patricia Miller here) was a Republican until his candidacy under the banner of the American Constitution Party.

State law says that unless the bylaws of a minor political party state otherwise, a candidate for certain offices (including Governor) can only be eligible to run on that minor party's ticket if he...:

(b) Was registered as affiliated with the minor political party that is making the nomination, as shown in the registration books of the county clerk and recorder, no later than the first business day in January immediately preceding the general election unless otherwise provided in the constitution or bylaws of the minor political party, and

(c) Has not been registered as a member of a major political party at any time after the first business day of the January immediately preceding the general election for which the person was nominated, unless otherwise provided in the constitution or bylaws of the minor political party.

Then we have to look at the ACP's bylaws, which the documents do (in part) as follows:

25. Article 11 of the ACP’s Bylaws, filed with the Colorado Secretary of State on February 1, 2009 in accordance with C.R.S. § 1-4-1301(1) and C.R.S. § 1-3-103(9)(a), states as follows (with emphasis added):

Candidates for political office shall be eligible for nomination at the state nominating convention if they are 1) registered as affiliated with the ACP for at least six months; 2) an up-to-date dues-paying member of the ACP for one year or more prior to the nominating convention; and 3) are not and have not been declared a candidate for nomination by any other party to the same office in the current election cycle.

The above requirements may be waived on an individual, case-by-case basis by a 2/3 vote of the whole membership of the Executive Committee, unless required by state statute.

Candidates who are seeking a position on the primary ballot by petition must have been registered as affiliated with the ACP for 12 months prior to the date of the state nominating convention in addition to meeting requirements 2 and 3 above.

Candidates chosen to fill post-convention vacancies must be confirmed by a majority vote of both the Candidate Search Committee and the Executive Committee.

The plaintiffs conclude from this language that the ACP may waive the affiliation and disaffiliation requirements in the case of nomination of candidates at the state nominating assembly.  That much is clearly true.

The next step provides the difficult legal questions:

First: Would it be true, as the plaintiffs argue, that the word "above", as emphasized by the plaintiffs in the petition, means that the 2/3 vote of the ACP Executive Committee to waive the requirements is not permissible in the situation of a vacancy after the assembly or convention?

Second: Would it be true, as the plaintiffs argue, that the requirements of the first paragraph of this section of the bylaws regarding affiliation apply to a post-convention vacancy?

Or, is the implication (as I would argue if I were the ACP's attorney) that the only qualification beyond what is required by state law and not able to be overridden by the party for a candidate to fill a  post-convention vacancy is his approval by the relevant party committees?

Similarly, do the bylaws override the disaffiliation provision of the state law?

As I said previously when the rumor of this sort of challenge came up in an article in the Maes-supporting Constitutionalist Today newspaper (which is doing itself no favors by being this deeply involved in a political race), I think this case could go either way.

I absolutely don't discount the plaintiff's arguments, but I don't think they're rock solid either.  (Keep in mind that I am not an attorney.)

If I were the ACP, I would argue that the reason the paragraph about post-convention vacancies doesn't include a provision for overriding the affiliation and disaffiliation requirements is that those requirements are specific to candidates "eligible for nomination at the state nominating convention." Therefore, I would argue that the votes of the relevant party committees is all that's needed to make the candidate eligible under the party's bylaws and therefore under state law.

This is no slam dunk for either side.  I would expect the Secretary of State to rule for Tancredo, and to argue that way in court, unless his lawyers say the plaintiff's case is much more definitive than it seems to be.  This is because government is and should be reluctant to remove candidates from a race unless their ineligibility is clear.  Perhaps most importantly, the Secretary of State is a Democrat in a tough race against Scott Gessler and probably would think he'd earn the gratitude (and campaign contributions) of Democrats for keeping Tom Tancredo on the ballot and thereby greatly increasing the chances of a Hickenlooper governorship (not that I think Dan Maes can beat Hickenlooper in a head-to-head match-up.)

Therefore, if I had to bet, I would bet that the plaintiffs lose and Tancredo remains on the ballot.  But I wouldn't bet a lot, especially if it ends up in front of a Republican judge.

But the problem is, as Bob Schaffer taught me, "if you're explaining, you're losing".  This lawsuit will keep Tancredo explaining that he is indeed a legal and eligible candidate, which is the political equivalent of having to answer the question "have you stopped beating your wife?"

While the filing of this petition does not make me think that Dan Maes will have a chance of winning a three-way race, it does make me think that he can keep that many more waffling Republicans from switching to Tancredo, and ensuring that our next governor is John Hickenlooper.

It therefore reinforces my view that conservatives should abandon this race. Indeed, it's probably in our interest to simply (and honestly) say that since we're almost certain to have a leftist, radical environmentalist, big-taxing governor, it's absolutely critical that we do everything we can to retake at least one house of the state legislature.

And let me be clear to those Maes supporters who are ridiculously saying that my take on this race somehow implies that I'm supporting Maes.  I'm not.  I used to think I could support Maes for a seat in the state legislature, but events of the past two weeks have made it so that I wouldn't support him for anything.  It's not just that he can't win the governor's race...he shouldn't win.

Finally, I wonder if anyone's noticed the irony that the tactic of these Maes supporters is almost exactly the tactic that Barack Obama used to win his first election in Chicago, to eliminate the competition rather than actually compete against them.

Petition to the Court arguing that Tancredo's candidacy is illegal:

Motion requesting Secretary of State remove Tancredo from the ballot:

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