Thursday, March 17, 2011

Lawyers, Money and recalls (no guns, though)-- Does going to court always make sense?

Maybe it's the Brooklynite in me, but I generally assume that any insurgent candidate is going to face some legal battle in getting on the ballot. So, Ben Smith's article noting that Wisconsin may be facing court battles to get on the ballot is no shocker. Practically every recall makes at least a pit stop in court -- hey, election lawyers gotta eat.

From the elected official's point of view, challenging the recall makes complete sense. Better and cheaper to kill the problem (and drain resources from the opponent), than risk a race. A race would be expensive and potentially exhausting. And, as Smith points out, there are good campaign finance reasons to go for a court fight.

However, I wonder if there might be a PR benefit in letting the recall go forward. Dianne Feinstein looked very strong in winning 81.5% of the vote in her 1983 recall fight (the next year she was on Mondale's short list for the VP). Some contemporary commentators argued that California Senate Pro Tempore David Roberti actually benefited from his expensive recall fight in his race for California Treasurer in 1994 (though this was probably always a minority opinion).

With that in mind, look at New Jersey Senator Robert Menendez. Late last year, he won a 4-2 New Jersey Supreme Court decision rejecting a recall attempt against him. The case is presumably being appealed to the US Supreme Court, but there is good reason to think that the court will either not hear the case or reject it. (We'll take up the issue of Federal recalls another day).

Let's say that rather than fighting the recall, Menendez welcomed it. The chances of it actually getting on the ballot were slim. The proponents needed close to 1.3 million signatures -- close to 400,000 more than was needed to recall Gray Davis in a state 4 times as large. If the recall proponents failed to qualify -- a very likely possibility, would Menendez have been able to declare a public opinion victory? Might he yet come under fire in 2012 for using the courts to avoid a vote?

It is definitely best to play it safe and go after the recall in court. But from a strategic view, the recall could be used as a vote of confidence.

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