Supreme Court Justice Souter mulls stay of Hoffman court decision

Let me try, with the help of the writing of the Maine Attorney General and Secretary of State, to see that the bloggers and reporters correctly report on the Hoffman case.

Herbert Hoffman is – right now -- ON the ballot. The Maine Law Court did not remove him from the ballot. In fact, it's doubtful the Law Court could remove him from the ballot, because ballot access is handled by the administrative branch of the government, not the judicial branch.

The sequence of events is this:
1. Herb Hoffman filed petitions and the Secretary of State certified that Hoffman qualified for a place on the ballot.
2. John Knutson challenged that certification. Knutson’s primary argument was that despite long-standing Maine tradition, the circulator of a nomination petition must personally watch every signer actually write their name on the petition, and that anyone who signed an oath as circulator when they did not personally witness every signature being signed had signed a false oath.
3. The Secretary of State accepted the Democrat’s definition, and then found that three of Hoffman’s 4,041 signatures were not personally witnessed as per that new definition. In so doing, the Secretary applied a rule imposed in June on an action Hoffman took in April. The Secretary then removed those three signatures, bringing Hoffman’s total to 4,038. Hoffman remained on the ballot.
4. Knutson argued that Hoffman had signed a false oath, and thus the entire three petitions should be thrown out. He appealed on that basis to the Superior Court.
5. The Superior Court upheld the decision of the Secretary of State and denied Knutson’s appeal. Hoffman remained on the ballot.
6. Knutson appealed the Superior Court decision to the Law Court. The Law Court ruled that Hoffman did not file a false oath, but an “inaccurate oath.” It then ruled, however, that “The absence of fraud does not change this result,” and declared the three petitions void. But the Law Court did not rule Hoffman off the ballot. It’s ruling was:
Judgment of the Superior Court vacated
Remanded to the Superior Court for entry of
judgment vacating the Secretary of State’s
decision, and for further action consistent with this
opinion.
7. That means the Law Court should tell the Superior Court to tell the Secretary of State that the three petitions are void and that the Secretary of State should then take whatever “further action consistent with this opinion” he deems appropriate. Presumably that action would be a finding that without those three petitions Hoffman had fallen below the minimum of 4,000 signatures and thus did not qualify for ballot access. At that point, and only at that point, would Hoffman be off the ballot, and it would be by an action of the Secretary of State, not the Law Court.
8. But the Supreme Court has yet to act on its ruling because Hoffman has filed two stay motions, one in the Law Court and one with the U.S. Supreme Court. Unless those motions are both denied, the Law Court cannot act, and Hoffman remains on the ballot.

That point was made perfectly clear in an August 19, 2008 filing by Maine Attorney General Steve Rowe, on behalf of Secretary of State Matt Dunlap, to the U.S. Supreme Court, which says in part:
“As of today, the SJC [Supreme Judicial Court] has not issued a mandate in this case, pursuant to Rule 14(a) of the Maine Rules of Appellate Procedure. For purposes of this filing, the Secretary assumes that the mandate will have issued by the time the Circuit Justice acts on Hoffman’s Emergency Application for Stay. At the time this is being written, however, the Secretary of State’s determination that Hoffman qualified for the ballot is technically still in effect, since the filing of the original action by John Knutson did not stay that determination, pursuant to Rule 80B(b) of the Maine Rules of Civil Procedure.”

So Hoffman IS on the ballot, and will remain on the ballot until a number of legal events transpire. He is not trying to get on the ballot, he is fighting to STAY on the ballot. It’s simply inaccurate to claim that’s not the case.

As an aside, consider that more than 97 percent of the signatures Tom Allen filed (and likely high percentages of the petitions many other Democratic candidates filed) to gain ballot access were signed on Feb. 10, 2008, the date of the Maine Democratic Party caucus. It’s common knowledge that many of those caucus-day petitions were signed under circumstances that would not conform to the Democrat’s definition of presence, and thus, under the Democrat’s definition, many activist Democrats made “inaccurate” oaths when they certified those petitions, oaths that left those petitions open to being declared void, had they been challenged.

Where would the Democratic Party be if the Republicans had challenged all those caucus-day petitions, had based their challenge on the same argument, and pursued their case as aggressively, as have the Democrats against Hoffman?