Yesterday I accused state Attorney General Rob McKenna of negligently putting the legitimacy of our entire 2008 election at risk—an assessment, I’ve been advised, that may have been too harsh… given that Secretary of State Sam Reed, perhaps, may in fact be equally culpable.
Perhaps. But first a little background on the case itself, and the legal rules at play.
As has been explained to me by actual attorneys, the Federal Rules of Civil Procedure clearly state that an injunction issued by a district court is not automatically stayed upon successful appeal; in fact, the rules require that a party with standing must explicitly request the district court (or the Circuit Court of Appeals) to dispose of or modify the injunction. And as has been previously noted, since the state has yet to ask either court to stay or modify the permanent injunction barring implementation of the top two primary, the existing court order remains legally in force.
So why, after an apparent victory before the Supreme Court, did state attorneys not take the obvious step of asking the lower courts to modify the existing injunction so as to allow Sec. Reed’s headlong implementation of the top two primary? Why not attempt to clear this up at the outset, when they could?
As I suggested in my previous post, it could have just been a monumental mistake: either McKenna simply forgot there was an injunction, or given his utter lack of prior courtroom experience, he just doesn’t quite get how these oh so technical court order thingies work. And, well, either explanation would be pretty damn embarrassing.
Or… perhaps state attorneys intentionally failed to ask the court to modify the injunction… because they were afraid it wouldn’t?
Attorneys familiar with the case have pointed out that both Judge Zilly and the 9th Circuit have expressly noted in their opinions that their rulings were not based on all the issues before them, a position echoed by the Supreme Court, which merely ruled on the facial aspect of the appeal while remanding the other issues back to the lower courts. Just because the Supremes rejected the single basis on which the injunction was initially granted, doesn’t mean there aren’t other grounds to support one, and as Judge Zilly expressly indicated in this week’s order, the case, as far as he is concerned, is still pending, barring a mandate from the 9th Circuit to dispose of it.
The Seattle Times editorial board’s absolute confidence notwithstanding, the appeal has clearly yet to run its legal course, and even if the courts were to decide to modify the injunction, that does not necessarily mean it simply goes away. The existing permanent injunction was issued in place of a requested preliminary injunction, and had a stay been requested the court might very well have decided to replace the former with the latter, at least for the time being.
So if McKenna and Reed were really convinced this case was over, as they publicly stated at the time, the question reporters should be asking them is, why didn’t they just dot their i’s and cross their t’s by asking Judge Zilly to modify his injunction way back in March? Was this an inexcusable legal brain-fart, as I first suggested? Or, was it perhaps a calculated legal bluff intended to force implementation of a top two primary in 2008, in willful violation of a standing court order?
I’m not sure which is the more disturbing scenario: that our Attorney General doesn’t understand the legal basics of court orders… or that he and the Secretary of State have so little respect for them? But then, that’s the sort of extralegal gamesmanship we’ve come to expect from Republicans in the Age of Bush, so no wonder our local media seem so uncurious about the circumstances that have led us to the precipice of an electoral disaster. You’d think some journalist might ask our AG—the guy they keep pumping up as the good Republican—why he never bothered to ask the court to lift the injunction, but then like McKenna and Reed, perhaps our press too is afraid of the answer they might get?
This is not, as the editorialists would have you believe, a question of whether the top two is good policy, or whether the voters deserve to get the primary system they approved by initiative, or even whether the Secretary of State might ultimately prevail in court. This is a question of the rule of law, and why our state Attorney General and Secretary of State are unable or unwilling to following it. The questions reporters should be asking Rob McKenna are why did you fail to request a stay and what was the legal advice you gave Sam Reed? And they should keep asking those questions until “Mr. Sunshine” gives them a straight answer, attorney-client privilege be damned.
If indeed this was a legal gamble rather than a catastrophic blunder, my guess is that the bluff will ultimately pay off, as it’s nearly impossible to scrap the top two at this late stage, and I can’t imagine the court being willing to allow this election to fall into legal limbo. But who knows? McKenna and Reed have just publicly dissed a federal judge, arrogantly dismissing a valid court order as a mere “technicality,” and if I were Zilly it would be hard to resist the urge to allow McKenna and Reed to wallow in the dire consequences of their own ignorance of and/or disrespect for the law.