After losing case, Hoffman turns to U.S. Supreme Court

August 6, 2008

Hoffman Takes First Step in Bringing Ballot Case to the United States Supreme Court for Review
The lead attorney for Independent U.S. Senate candidate Herbert Hoffman took the first step in bringing Hoffman's case to the U.S. Supreme Court Wednesday, filing a motion for a stay of the Maine Law Court's July 28 decision that Hoffman should be denied a spot on Maine's November ballot. The stay has been sought for the purpose of affording Hoffman a meaningful opportunity to seek U. S. Supreme Court review of the Law Court's decision.

Attorney John Branson of Portland said "the campaign has decided to seek federal judicial review of a decision that has troubling near-term and long-term ramifications for the constitutional rights of Maine citizens. The Maine Law Court has construed and applied Maine law in a manner that not only tramples upon the federal constitutional rights of Mr. Hoffman, but also on the rights of the thousands of Maine voters who validly signed his petitions, and the rights of other members of the electorate who seek to engage in political expression or association through the nomination of non-party candidates to federal or state office.

"In view of the citizenry's well established rights of political expression and association under the First and Fourteenth Amendments to the United States Constitution, longstanding United States Supreme Court jurisprudence places strict limits on the nature and extent of permissible regulation of ballot access by the states, particularly in the context of state regulation of federal elections," Branson explained.

Branson said that he and Hoffman have secured the services of several attorneys, including members of the bar of United States Supreme Court, to assist in the preparation and filing of a petition for a writ of certiorari, asking the High Court to hear the case. Branson said that the Hoffman case has attracted widespread interest among legal scholars, law professors, lawyers, journalists and non-profit organizations around the nation. Moreover, he said, federal courts throughout the country, including the United States Supreme Court, have taken very seriously the task of adjudicating federal constitutional restrictions on state ballot access laws, particularly when those laws restrict ballot access in federal elections.

Branson said that unless the Law Court postpones action on its decision, "the Maine Secretary of State may be placed in the unenviable position of acting in a manner that is unconstitutional, that may be in conflict with his own oath of office, and that violates the fundamental rights of Mr. Hoffman, his petitioners, and Maine voters generally under the First and Fourteenth Amendments to the United States Constitution."

"Furthermore," he said, "in the absence of a stay of the Maine court ruling, Mr. Hoffman's basic right to seek review in the United States Supreme Court would be rendered meaningless."

The Secretary of State determined in June that Hoffman qualified as a candidate for the United States Senate election to be held on November 4, 2008. Following a challenge by the chairman of the Maine Democratic Party, the certification of Mr. Hoffman's candidacy was upheld in three separate rulings.

Then, on July 28, the Maine Law Court ordered that Hoffman be removed from the ballot on the basis that Hoffman's oath was declared "inaccurate" with regard to how he witnessed three individual signatures on three of his petitions. According to the Law Court, the problem with those three signatures required the disqualification of more than 90 valid, authentic and uncontested signatures, pushing Mr. Hoffman below the 4,000 signatures required by law for ballot access.

The Law Court made its determination based on a new, much-stricter standard for petition circulators that the Secretary of State Dunlap applied to Hoffman after he had turned in his petitions. This new standard, which Dunlap adopted at the urging of the Maine Democratic Party, was not in effect when Hoffman signed the certification on his petitions, and it has not been applied to any other candidate in Maine. Hoffman was thus not only found to have violated a standard that was not in effect at the time he allegedly violated it, he was also forced to adhere to a much higher standard than was any other candidate. Both of those actions against him have Constitutional implications.

"In the absence of fraud or intentional misconduct," Branson said, "the U.S. Constitution simply does not permit the wholesale disenfranchisement of more than 4000 registered voters who validly signed Mr. Hoffman's petitions, nor does it allow the retroactive application - to a single candidate - of an entirely new standard for circulating petitions. If indeed the applicable Maine statute compels such a result, then the law is plainly unconstitutional as applied to the facts of this case."

"Mr. Hoffman looks forward to the opportunity to enforce and vindicate his constitutional rights, and those of Maine citizens generally, in the context of his request for federal court review, where he hopes the United States Constitution will be afforded the deference and respect demanded by this important case," Branson said.

Secretary of State Dunlap admitted to the Blethen Newspapers Sunday that the new standard he adopted and then applied to Hoffman flies in the face of the way his own Democratic Party traditionally collects nomination papers. He noted that, on the occasion of party caucuses and other Democratic gatherings, petitions are often left on a table for people to sign with no one closely attending to them.

"The fact of the matter is, what the Hoffman decision tells us is that those days are over. You can't do that anymore," Dunlap told a reporter.

"But I guess it was OK for Democrat Tom Allen to do it back in February," Hoffman said Wednesday, "We've examined the petitions Rep. Allen filed this year. More than 97 percent of them were collected on caucus day. The confusion - and in some cases pure bedlam - that prevailed at the Democratic caucuses this year has been widely documented. Just a cursory examination of the Allen petitions shows numerous instances indicating many of the signatures may not have been properly witnessed under this new standard.

"Had the Law Court subjected the Allen petitions to the same standard as were ours," Hoffman said, "there is a very good possibility that Rep. Allen would have been denied ballot access as well."

Hoffman testified himself that he signed petitions where he was swearing something he knew was not 100% true. Only the fact that he thought this lie was "normal and acceptable" gave the court enough wiggle room to find that he did not commit fraud.

From:

MAINE SUPREME JUDICIAL COURT
Decision: 2008 ME 124

Hoffman himself also conceded at the hearing that: (1) there were times when he used the assistance of another person to collect the signatures for which he was the circulator; (2) his daughter
used a separate clipboard to collect signatures when he was the circulator; (3) he thought that being within ten or fifteen feet of his noncirculator “assistant” was acceptable; (4) another individual gathered a few signatures while he, Hoffman, was engaged in dealing with other responsibilities; and (5) he “might have” left his daughter alone for a brief period to collect signatures while he was otherwise engaged. Thus, there is no question that Hoffman could not take an accurate oath that all the signatures on his petitions were made in his presence

Mr. Hughes:

Being wrong doesn't make it any less illegal than being fraudulent. Honest mistakes, as you know, still have legal consequences.

My reading of the last two paragraphs of the Court's decision makes that plain; the court struggled with this, but found the law as written to be clear.

Hoffman made mistake. Nemitz was correct in that if Hoffman had collected 10,000 signatures, we wouldn't be discussing this. And if Maine used Instant Runoff Voting, we wouldn't be here either.

Time to put this to bed, Mr. Hughes.

.....used Magic to determine its ballot access, it wouldn't be an issue either. But we live in the real world, where ballot access is determined by law, not fantasy.

Oh, and Instant Runoff Voting, BTW, has no direct connection to ballot access laws. It is intended to make it easier for third-party candidates to get votes, not ballot access. We could implement instant runoff voting and not change a word of Maine's ballot access laws.

Whether or not you rank the candidates, the MDP would likely have challenged Hoffman's petition and gotten it tossed out by the Law Court. In fact, since IRV may increase the votes a candidate like Hoffman gets, it would likely encourage challenges to petition signatures, not discourage them.

interesting point - even if Hoffman isn't raising that point himself.

If a party candidate had gone through everything that Hoffman has and ended up not on the ballot, like Hoffman, then the SOS would declare a vacancy for the seat. The party could then name the candidate who did everything Hoffman did to the ballot.

If what happened with Hoffman had happened to a party candidate the candidate would likely still be on the ballot by virtue of the party being able to name him to the ballot after the fact.

It's an interesting constitutional question that Hoffman hasn't raised yet. Similar questions have been raised in other states but, as far as I can tell, the courts have not been kind to independents who find themselves in Hoffman's situation.

Greens still do have ballot status.

If I recall correctly there is a city in New Hampshire that uses IVR and it came up as an issue ( bad word for the situation ) I think in 2006. I recall it being a local election for mayor. Might have to go digging to see how that turned out.

Nothing wrong with being partisan, we both are to one extent or another, but that's no reason to be rabid about it. You've been quite reasonable and I've no complaints there.

isn't actually a strong selling point for Mainers. New Hampshire is closer. People can inspect it a bit for themselves which is actually an important factor for many of the northern old timers.