The Volokh Conspiracy - Suing to Recognize Democratic Delegates from Michigan and Florida:

Watching election coverage last night, the idea was raised a couple of times that if the Democratic nomination comes down to the wire, Hillary Clinton might sue in order to try to have the Michigan and Florida delegates recognized at the convention.

Anyway, my question is whether Clinton would have any basis for a winning lawsuit to have the delegates recognized. Does anyone know what would be the basis for her claim and its odds of success?

I haven't seen this written up anywhere else, so please point me to an analysis if I just happened to miss it.

Karl Rove seemed to suggest that the Democratic Party would simply recognize them out of political expediency--but that seems like it would be quite controversial in light of the fact that she was the only one who was on the ballot in Michigan, so there seems like a real fairness issue there not to mention the precedent it would set.

One other interesting point Rove made that I hadn't been aware of is that in Texas delegates are allocated by state Senate district, but that then number of delegates are based not on the percentage of Democratic vote in the district but the actual number of Democratic votes in the district. He notes that this dramatically reduces the relative weight of Hispanic districts in the state because even though they vote heavily Democratic they tend to have much lower turnout than in other parts of the state. He argues that this weighting probably favors Obama because it essentially weights votes from districts with many black voters more heavily than with many Hispanic voters even if they win a comparable number of districts with a comparable percentage of votes (he implied that black voter numbers in Texas are substantially higher than Hispanic voter numbers). I have been amazed at the amount of complexity and variety that states use in this presidential nomination process.

Update:

Rick Hasen had a piece in Slate last week that addresses this and other "crazy" aspects of the primary caucus season here. His prediction is that courts would be unlikely to intervene in an internal party debate on this question.

	[Todd Zywicki, February 13, 2008 at 6:30am] Trackbacks Suing to Recognize Democratic Delegates from Michigan and Florida: Watching election coverage last night, the idea was raised a couple of times that if the Democratic nomination comes down to the wire, Hillary Clinton might sue in order to try to have the Michigan and Florida delegates recognized at the convention. Anyway, my question is whether Clinton would have any basis for a winning lawsuit to have the delegates recognized. Does anyone know what would be the basis for her claim and its odds of success? I haven't seen this written up anywhere else, so please point me to an analysis if I just happened to miss it. Karl Rove seemed to suggest that the Democratic Party would simply recognize them out of political expediency--but that seems like it would be quite controversial in light of the fact that she was the only one who was on the ballot in Michigan, so there seems like a real fairness issue there not to mention the precedent it would set. One other interesting point Rove made that I hadn't been aware of is that in Texas delegates are allocated by state Senate district, but that then number of delegates are based not on the percentage of Democratic vote in the district but the actual number of Democratic votes in the district. He notes that this dramatically reduces the relative weight of Hispanic districts in the state because even though they vote heavily Democratic they tend to have much lower turnout than in other parts of the state. He argues that this weighting probably favors Obama because it essentially weights votes from districts with many black voters more heavily than with many Hispanic voters even if they win a comparable number of districts with a comparable percentage of votes (he implied that black voter numbers in Texas are substantially higher than Hispanic voter numbers). I have been amazed at the amount of complexity and variety that states use in this presidential nomination process. Update: Rick Hasen had a piece in Slate last week that addresses this and other "crazy" aspects of the primary caucus season here. His prediction is that courts would be unlikely to intervene in an internal party debate on this question.