A State Interest In Restricting Free Speech & Association?
Hammons did not dispute the facts of Setzer's party affiliation and registration; rather he claimed the entire law being used against Setzer is unconstitutional in that it restricts individual freedom without making the case that a compelling state interest requires it.
Hammons said that the state would have the right to require that the candidate is a citizen, not a criminal, living in the district, and meeting other state interests. But the candidate's requirement to be a long-established member of the party he's filing as, is not a state interest at all, according to his view. Hammons further stated that it might be plausible to say that another Democrat might be interested in challenging a new member of the party, and that the party leadership might also be reasonably concerned. But Hammons argued that the state, itself has no compelling interest.
Hammons further demonstrated that Libertarians were exempted from this long requirement, this Spring. They were allowed to run as Libertarians even though they just re-affiliate as new Libertarians just 2 weeks prior to running as candidates for that party. Hammons says that is an inequitable miscarriage of law.
Coffee had immediately called for a recess and 10 day delay to prepare and present his response to the Democrat Party defense. The Board had also heard from the Attorney General's office regarding their authority and powers to judge the matter. AG Pruitt contends that this board has full judicial jurisdiction to apply the law and even strike down law, in doing their administrative duties. Pruitt's opinion even stated that this board has exclusive jurisdiction in this contests of candidate eligibility. The Election Board's own counsel also stipulated that the 3-member judge counsel on this board has the right to proceed in this constitutional debate.
The board then decided to enter into executive session in another room to discuss the full weight of the case. After about 10 minutes they reappeared from the private room behind the bench. They approved the motion to proceed with the case immediately and forced Glenn Coffee to argue a case he'd had no expectation of ever having to ponder on this day.
Enter The Amicus...
Aside from the adversarial nature of the 2 litigants, the election board also heard from their own legal counsel and that of the Attorney General. And that is where the case was decided. There was no structural accommodation for either of the litigants to respond to the board's own counselors. What the 'court' heard from the board's counsel was an overwhelming litany of cases cited from the US 9th & 6th district and even opinions of Justice Antonin Scalia and portions of the Citizens United case.
Dr. Mauldin (the one Democrat of the 3 presiding board members serving as a 3-member tribunal) then asked the board's legal council if the defendant (Joshua Setzer) would have been a qualifying candidate if he was a Libertarian candidate seeking the seat. The legal counsel refused to answer, saying that it is not important to this narrow decision being made. Hammons would normally be able to object because the law is what's essentially on trial here. But again, the board was winging it and it was already past 6pm.
This court had no discovery, no rebuttal, and no listed structure at all. They were winging it and no one really knew what the rules of the venue were going to be from minute to minute.
Eventually, Chairman Steve Curry and member Tom Montgomery voted to sustain the challenge from Marlatt and through the Democrats out of this election, leaving the 3 republicans to decide the seat in the legislature.
Member Dr. Tim Mauldin dissented. The Republican-led election board and the board voted not guilty (with one Democrat dissent).
All 3 members of this board are very active political players for their parties and we would be willfully ignorant to disregard their political appointments. There is no talk of changing the law, jurisdiction, or desire to appoint a Libertarian to the ruling board.
Opinion of the Editor
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David Van Risseghem is the Director of Sooner Politics.org. The resource is committed to informing & mobilizing conservative Oklahomans for civic reform. This endeavor seeks to utilize the efforts of all cooperative facets of the Conservative movement...