Update: CP to Kelly Clark--"This Again? Are you Stupid?"

I told you I'd try to see what's what with the Kelly Clark complaint against Constitution Party goobernatorial candidate Mary Starrett. Jeff Mapes of The O put up both Clark's letter of complaint and the Secretary of State's inquiry to the CP in the politics blog section online, which was mighty helpful (although I'd gotten Clark's letter from another source.) As badly formatted as it is, and as hard as it is to find it without a lot of practice, The O's blog forays continue to improve and are now providing solid, timely updates to developing stories like this one. Kudos to the staff for providing the updates, and the paper for giving them a chance.

Clark's legal points in the letter seemed a little odd to me. He somehow conflated newspapers in "general circulation" with "statewide circulation," and then through some hidden formula declared only three papers to be big enough to earn the statewide title. It's not clear that Oregon has "general circulation" defined in the ORS; I couldn't find it although the term appears several times, but I'm a layman. I'm sure Clark knows the law better than I, but in the other states I researched--Indiana, Illinois and Tennessee--"general circulation" basically meant it was designed for a general audience. In other words, a law journal is not general circulation. A monthly newsletter for fans of Samuel Adams is not general circulation. The issue of size or geographic reach didn't come up in any definition, and in some cases those standards were specifically disclaimed.

But as I said in the original piece, if the CP never put anything into the papers then perhaps Clark has something, so I endeavored to hear from party leadership as to which papers they submitted notice to, if any. After a couple of tries I reached Vice-Chair Jack Allen, who was willing to speak for a few moments.

Allen had two interesting things to point out, one of which others perhaps were already aware (but which didn't get mentioned in last night's O wrapup). First of all, the CP doesn't have a nominating convention. In a move which I think makes a fair bit of sense for a small, far-flung party registrate, they first hold regional caucuses to nominate delegates to a Steering Committee, who then convene in a non-public meeting to decide the party's nominees. It's not what might strike you as a particularly democratic process, but (I suppose in tribute to the US Constitution) that's the way the President used to be nominated--by the Senate, the public's duly elected delegate.

So, if they don't really hold a nominating convention, how can they be held to a rule that defines when they should notify people about that convention? Does the delegate selection then become the convention? Does the ORS mean to say that they must have a convention? These are questions that a lawyer might best answer. Surely Kelly Clark knows the answers, right? He's researched this before filing a complaint, right?

Well, not necessarily. This IS Kelly Clark we're talking about. It's only been about a year since the SoS sent him a letter explaining all this, from the LAST time the Republicans tried to get the CP kicked off the ballot. Shockingly, Clark and Clackamas County Commissioner William Kennemer filed almost exactly the same complaint against CP candidates in the 2004 elections, right down to the use of the phrase "politburo-style" to describe the process by which the CP selects its nominees. All those questions I asked? Here are the answers, from the letter:

ORS 248.005, ORS 248.017 and ORS 248.072 collectively allowed the Party to draft bylaws relating to their nominating processes without approval from or regulation by the Elections Division or county election officials. The Party adopted bylaws and elected the Steering Committee members by a vote of the membership during the founding convention held in August 2000. The bylaws specifically address the manner to fill vacancies within the Steering Committee. Without the authority to regulate the Party's bylaws it becomes inappropriate for the Elections Division to regulate the membership of the Steering Committee.

As noted above, ORS2 48.009(1) requires the minor party to set out in its organizational documents a "nominating process for candidates for election at the general election'" (Emphasis added.) That process "shall provide an equal opportunity to all registered members of the party within the electoral district to participate in the process of making nominations or selecting the delegates who will make the nominations." But ORS2 48.009(1) does not require that the party hold a convention as part of the process.

Because a convention was not held, the requirements of ORS2 48.009(3) do not apply to the nominating process used by the Party in July and August 2004. Not finding a violation of election law, the Elections Division determines this investigation is closed and does not intend to pursue this matter further.

I think now I understand why Starrett was more amused than anything else--they must have shaken their heads at CP HQ, wondering how much of a dolt you have to be to get spanked on a complaint and then file it again exactly the same way next election. It's almost as if they anticipated more hassle however, because just to cover all the bases the party DID publish notices in local papers for the Steering Committee nominating process in April. According to Allen, sometime around March 21--ten days before the April 1 meetings--the party published notices in the Eugene Register Guard, Grants Pass Courier and Medford Mail Tribune. He has promised to forward more information about the dates and invoices to prove they did, as long as the SoS was going to ask for them anyway, so at this moment I'm taking them at their word--but truthfully it doesn't even appear they needed to do so.

There is one sidebar component to the case: in 2004, Kennemer and Clark took their case to the county Elections Board in order to have CP challengers (including one running against Kennemer) booted from the ballot. Perhaps unsurprisingly given who was complaining, the board found in favor of one of its bosses, and did their bidding. In seeking redress for that decision, the Party took their case to Circuit court, which agreed with Kennamer and Clark. That might have been seen as a legal precedent, but in a footnote to the SoS letter they didn't see it that way:

The Clackamas County Circuit Court was correct in citing ORS2 54.165(1) as assigning the county elections official with the authority to qualify a county candidate to the ballot, although as previously discussed, the elections official is prohibited from enforcing the minor political party's nominating convention rules. In our capacity as administrators of the election laws, however, we do not adopt the court's construction of ORS 248.009(3).

The SoS is playing this "new" complaint by the book and asking for explanations and documentation, but given that both the complaint and Party practices appear unchanged, the Secretary's secretary might want to save a few minutes of typing and dust off 2005's letter. Perhaps Clark never got it? That's the only rationale that doesn't make him look like a Class A boob. No wonder Saxton's people wanted nothing to do with this.