[statecom] Legal Concerns Addressed (Prop #3 - Hammerman, Heichman, Ross)

[Wanda Boeke]

To Jim Hammerman, Mike Heichman, Grace Ross and the State Committee:

CONCERNS REGARDING LEGAL ISSUES (Proposal #3)


     ************* MGL IS SOURCE OF LAW **************

The first place to look regarding legal issues is "The General Laws of
Massachusetts" (or MGL - http://www.mass.gov/legis/laws/mgl/).

Part I "Administration of Government" - Chapters 53 and 55B deal with
everything we're concerned about, like filing nomination papers,
withdrawals, objections, dates and the like.

In order to officially (and legally) withdraw from a state's presidential
ballot, the candidate has to file with the Secretary of the Commonwealth for
withdrawal (by a specific date). Also, if there are objections to a
candidate being on the ballot, objections have to be filed with the
Secretary of the Commonwealth by a specific date. Neither of these events
happened. The last filing date was December 7, 2007.

(Secretary of the Commonwealth's Presidential Calendar: "Friday, December 7,
2007 / 5:00 p.m.: Last day and hour for presidential candidates to file an
affidavit of withdrawal with the Secretary of the Commonwealth"
http://www.mass.gov/legis/laws/mgl/; also MGL 55B + 53A + Chapter 53 Section
25 + Section 13 + Section 10)

The withdrawals and questionable candidacy issues started AFTER that date.

Therefore we had the people on the ballot we did.


    *************** LEGAL ADVICE GRP RECEIVED (2 legal opinions) ********

This is why it has been hell trying to figure out what to do for the GP
national convention, as candidate after candidate withdrew or rejected GP
nomination - since many members are impassioned about this.

To receive legal advice, the GRP (AdCom) wrote to the Secretary of the
Commonwealth's executive legal counsel (Michelle Tassinari) for assistance.

* TASSINARI (OPINION #1) *
Tassinari cites the MGL Chapter 53 Sections 70I (here's the whole section):

"Section 70I. If there is a roll call vote for president at the national
convention of a political party, all delegates and alternate delegates whose
selection is subject by party rule to the approval of a presidential
candidate shall vote on the first such roll call for that presidential
candidate unless released by such candidate."

and 70B regarding our Delegate Selection Plan (although she mistakenly
refers to it as 70E - go look, you'll see why it was the wrong number) in
part:

"the distribution of delegates under any such system shall reflect the
preference expressed by the voters on the presidential preference portion of
the ballot at the presidential primary."

Tassinari said that changes (within legal parameters) were fine, they just
had to be reported to the SoC. GRP (SC, CDLC, AdCom) has discussed changes -
and I believe consensus was reached by the 4/12 State Committee on the
wording of that Plan.

* ROM (OPINION #2) *
Another legal opinion was asked for by a member or members of AdCom
(although not by explicit consensus), this time from elections attorney Alan
Jay Rom. 

Rom answers all questions related to whether a withdrawn candidate is still
a candidate who can receive delegates.

In his opinion, Rom (citing MGL 53) says that:
"Massachusetts election laws refer to and contemplate rules for candidates
who are candidates of a political party and who legitimately stand before
the voters as candidates of such a party.  A candidate who indicates that
he/she is no longer a candidate of such a political party will not appear on
the ballot if notification is provided to the Secretary of the Commonwealth
by a certain date referred to in the statute."

That's the legal definition of withdrawn candidate - one who provides legal
notification (MGL). Rom adds that the candidate won't appear on the ballot
(that's why the withdrawal date - otherwise they obviously end up appearing
on the ballot and not legally withdrawn).

All further argument he provides to the questions about a candidate's
releasing or not getting delegates is based on it being an officially
withdrawn candidate. Such candidates, he correctly asserts, are not
candidates and shouldn't get delegates, and therefore no problem with the
release issue. 

However, none of the candidates who "withdrew" from the nomination did so by
filing officially with the SoC of Mass. (certainly not by the prescribed
date).

AdCom itself has not truly appreciated this fact and assumed (as I did, at
first) that the two legal opinions conflicted.

Many on StateCom, AdCom, etc. overlooked this aspect of being officially
withdrawn by Mass. law as being the only kind there is.


************* DELEGATE SELECTION PLAN AS IS = LEGALLY OK ******************

GRP will not be running into legal issues if we follow the current Plan (as
per Tassinari). However, changes have to see approval/acceptance by the
Secretary of the Commonwealth, but major changes about delegate allocation
not among all the options (i.e., all the voter preferences) is legally not
OK.

The two legal opinions do NOT conflict - they both abide by the MGL (as they
should). Only if candidates officially withdraw (before a notary, submitting
an affidavit to the Secretary of the Commonwealth) can they be considered
withdrawn. After the deadline, voters vote on the candidates named on
ballots and delegates must represent the entire vote proportionately at
their party's convention and vote the first round as if replaying the
original primary vote. Afterward, no candidate being present to accept
nomination, delegates are released and freed or released and instructed.

I think both legal counsels have been misread and this has been confusing
and hurtful to all of us since we did not do all the reading homework or do
it thoroughly.

That's the legal end basically.

Wanda Boeke
Berkshire County (alternate)
Can provide (more) documentation - just didn't want this to go on & on