Personal observations of a supreme court hearing
Wednesday I attended a hearing by the South Carolina Supreme Court. The case was Tempel v Platt. George Temple, chair of the Charleston Democratic Party sued to keep Eugene Platt, the Green Party nominee for SC House District 115, off the November ballot. Platt had been nominated by the SC Green Party before the Democratic Party held it’s primary. Platt opted to run in the Democratic primary. While he won the SCGP nomination, he lost the Democratic primary. The Charleston Post and Courier has a story on the case as well. H/T to Ballot Access News for the link to the Post and Courier piece.
South Carolina law requires candidates to sign a “loyalty pledge” which says that the candidate will not run a write-in campaign nor attempt to appear on the ballot as a petition candidate if they lose a primary campaign. Platt did not offer as a write-in candidate, nor did he seek signatures to appear as a petition candidate after losing the Democratic primary. Instead, he simply sought to appear on the ballot as the nominee of the ballot qualified party which nominated him: the SC Green Party.
Tempel sued in state court to force Platt off the ballot. The first court to hear the case did not permit the submission of any testimony or evidence. The judge simply said that Platt had signed the pledge and was off the ballot. Case closed.
Wednesday the supreme court heard Platt’s appeal.
Brian Sells, an attorney with the Voting Rights Project of the ACLU was the first to speak. He began by explaining the origins of South Carolina’s loyalty pledge. According to Sells, the pledge was a part of the Democratic Party dominated legislature’s effort to keep Black citizens from running for office. These notorious laws were adopted in 1950. As Sells began to explore this in more detail he was brought up short by the lone Black member of the court. Because I don’t have a verbatim memory of what was said I will not use quotes. In essence he said ~Aren’t you just wasting our time? The state court ruled on the facts, and there was no violation of procedure. You didn’t bring up any constitutional issues when that court heard your case.~
As Sells began to explain he was repeatedly interrupted by the justice. ~The judge who ruled against you gave you a chance to present constitutional issues but you didn’t. He even asked you about Anderson v. Celebrezze and you didn’t follow up on that.~ Sells explained that the judge did not permit him to present much evidence at all, and that the judge’s decision was predetermined.
About then the Chief Justice entered the fray, saying the fact that a racist state legislature used the law to suppress minority participation does not by itself make the law unconstitutional. ~The state’s sales tax was established to fund separate-but-equal schools, and while that had been declared unconstitutional, the sales tax remains in force.~ She further said that her reading of the first court transcript led her to believe that Sells had not presented the constitutional case with enough vigor, and was using the appeals process to make up for earlier failings. Sells again pointed out that he had not been given ample opportunity to present evidence.
The first justice said ~What about other cases, like the one from Florence, where a candidate who lost a primary was kept off the November ballot? Why doesn’t that situation apply here?~ Sells explained that in the Florence case, and others like it, the candidate did violate the terms of the pledge by engaging in campaigning after losing the primary for write-in votes, and Platt had not done so.
Another justice, the second woman member, said ~In the transcript of the first court case their is mention of Anderson V Celebrezze, and it appears that you were taking pains to preserve your client’s constitutional rights.~ Later, another justice said ~Anderson V Celebrezze requires that one of the two parties involved must be subjected to different rules that the other party. How does the loyalty oath discriminate against one party versus another?~ Sells explained that the law allows the party holding a primary to sue to keep a candidate off the ballot after a loss, but has no provision allowing a party which nominates by convention to do the same, meaning that they were subject to different rules.
The Chief Justice cut off Sells’ presentation and turned to the attorney for the Democratic Party. He began his presentation but didn’t get much further than Sells did before the chief justice began drilling him. ~What compelling state interest is served by keeping these candidates off the November ballot?~ The attorney said that the state’s interest was in keeping the ballot from being cluttered, and to avoid voter confusion.
The court’s sole Black member then said ~I don’t like this law, but that doesn’t mean I would rule it unconstitutional.~ He said that he was concerned that Sells was not permitted to present his case, even though he had said that he didn’t understand what Sells would have presented as evidence since the violation of the pledge seemed obvious on it’s face. Only these two justices addressed the attorney for the Democratic Party.
They then turned back to Sells. He said that he disagreed with the Democratic Party attorney’s assertion that convention parties were free to sue to keep primary candidates off the ballot when they lose at convention, reading directly from the law. He reiterated the point that the two sorts of parties were treated differently, and therefore one group was subject to discrimination that the others were not. ~The law, if upheld, gives the Democratic and Republican parties a veto over other party’s nominations, without giving the other parties a similar veto.~
This is the best I can come up with based on my memory. The court transcript will no doubt be available online at some point and it will be linked to here at that time.
Don’t you know, the Democratic and Republican Parties are more equal.
And the old cluttered ballot theory always gets me. They bring that up whenever they want to keep others off the ballot and they don’t really have a case to make.