U.S. Court of Appeals, D.C. Circuit, Hears Debates Case

On April 21, the U.S. Court of Appeals, D.C. Circuit, heard Gary Johnson et al v Commission on Presidential Debates, 16-7107. The two judges who spoke gave both sides a tough time. The oral argument, which lasted 34 minutes, can be heard at this link. The three judges were Laurence Silberman, Cornelia Pillard, and Janice Rogers Brown. Only the two first-named judges asked questions and made comments.

The attorney for the Commission on Presidential Debates, near the 21-minute mark, made the statement that when candidates get on the ballot in states containing a majority of the electoral college, that does not mean they have any popular support whatever. He said all getting on the ballot in states with a majority of the electoral college only shows that they are well-organized and have some financial resources. This may be true, but it contradicts all the ballot access jurisprudence. The U.S. Supreme Court, in all its ballot access cases, has always taught that the ability to complete petitions is a means for knowing how much popular support the candidate or party has.

The attorney for the Commission on Presidential Debates also said that if Gary Johnson and Jill Stein want relief, they should ask the Federal Election Commission for relief, and if the FEC won’t give such relief (which, so far, it won’t), then they should sue the FEC. And, it is true that both candidates are suing the FEC.


U.S. Court of Appeals, D.C. Circuit, Hears Debates Case — 5 Comments

  1. Why would not all the alternative candidates who navigated the state barriers to the ballot to appear on enough state’s ballots to achieve a majority of Electors votes simply hold public debates jointly inviting all the potential Presidential Electors of all parties to attend? One could call this the Debates for Presidential Electors.

    There would likely, under the present ballot access regime, be only three or four such pairs of candidates Libertarian, Green, Constitution Party and perhaps another party or Independent candidate.

    Presidential Electors are the people who actually elect the President and Vice President and those ballot qualified alternatives candidates are the candidates who the Electors could elected.

    If the two incumbent parties wish to boycott such a debate, so be it. They have chosen their debate producers – the Commission. The alternative presidential candidates can choose their main audience – the Electors themselves and give those Electors their opportunity to question those candidates directly.

    If the Electors of all the ballot qualified candidates could question those candidates and the Democratic and Republican candidates wished to forbid their nominated Electors to attend such alternative candidate debates, then that would be another legal question.

    Presidential Electors still matter, but they are an endangered constitutional species of officers.

  2. @D. Frank Robinson
    1. The presidential electors are chosen by the parties so there’s not much you’ll be able to do to get them to “switch sides” (2016 was special with Trump & Clinton)
    2. The Commission on Presidential Debates (CPD) says if you participate in ANY other debates you’re disqualified from theirs
    3. No TV stations would carry it because no one would watch it. To prove my point, there WAS a minor party debate last year with most minor party candidates (except Gary Johnson). No one watched and most didn’t even know it happened

  3. To be fair, D, Frabk, last year there were actually 9 candidates wwho got ballot access enough to theporitically win the election, though granted that counts qualified write-ins (wich I think should count). I have no issue with this, but it isn’t just three or four, at least not always. And sorry for typos, I’m on a lap-top, and that’s putting me off.

  4. @ Brandon L and James Mahoney IV

    Yes, I am aware that the parties select the nominees to become Presidential Electors. If elected, that does not make them robo-electors. The Presidential Electors still have the constitutional authority to vote using their own judgment.

    Yes, I am aware that the Democratic and Republican parties have an agreement to boycott all other debates which include alternative candidates. However, that bipartisan rule would seem odd to boycott a debate attended only by potential and already nominated candidates for Presidential Electors of all parties. Any one of the those nominated Electors could be the vote for a majority in a razor thin election. IOW, a sole Green Party or Libertarian Elector in just one state could swing an presidential election or throw it to the House of Representatives.

    No, I don’t know how many people wouldn’t watch the type of debate that has never been held as I propose. The example you cite is not relevant, regardless of viewers. The debate format I propose would be attended only by persons nominated as Presidential Electors by several parties and only those nominated Electors could interrogate the candidate (however many they might be). Media personalties could not ask questions during the proceedings – only officially nominated Presidential Electors.

    James, write-in presidential candidates must have a slate of Electors. Declared write-in candidates without officially nominated Electors cannot be included because there will be no Electors to vote for them in December when the actual election a President and VP takes Places. Yes, voters should be free to write-in a slate of Presidential Electors, but that cannot happen until November and the Electors debates will take place between the time slates are recorded with state election officials and the November election.

    Yes, it would be possible for debates to be held after the November election and before Electors cast their ballots in December and that is not incompatible with my proposal or the Constitution.

    I emphasize again, the real Presidential election is in December when the Electors who were elected in November vote at their respective state capitols. Debates between any candidates and exclusively before officially nominated candidates for Presidential Electors has never been held. No one can say whether such debates would be deemed newsworthy although C-SPAN might well take due note of such an historic event.

  5. So if there were say 5 candidates that could potentially win and all of their electors attended that would be potentially 2,690 (5×538) people in the audience asking questions.

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