Would a Pa. GOP Voter Have a Cause of Action Against Arlen Specter?

[WSJ_law_blog]

The thought crossed our mind earlier today, and we assumed immediately that the answer is no — that a lawsuit filed by a Pennsylvania GOP voter or the Republican Party of Pennsylvania would fall flat in front of a judge. But we weren’t exactly sure why the answer would be no.

After all, one could argue, Pennsylvania voters — especially a Republican — didn’t bargain for this when they pulled the lever for Specter in the 2004 election. In other words, that there was some sort of implied contract perhaps between, say, a Republican voter and Specter himself to serve out his term as a Republican. Or, maybe, some sort of actionable claim of disenfranchisement?

Acknowledging that our musings were a bit half-baked, we reached out for help, in this instance Rick Hasen, an election-law specialist at Loyola Law School in Los Angeles (where have you gone, Loyola 2L?) and author of the Election Law Blog.

Hasen quickly confirmed our suspicions — that a switch in party is not actionable. “There are other countries where if you switch parties, you might lose your seat in parliament, but not here,” he said. “Here, you can switch teams.”

Hasen said that no binding contract is created when a voter casts a ballot. The spark of this idea, Hasen told us, can be found in a speech that Edmund Burke gave to the Electors of Bristol in 1854. Quoth Burke:

[A]uthoritative instructions, mandates issued, which a member is bound blindly and implicitly to obey, to vote, and to argue for, though contrary to the clearest conviction of his judgment and conscience; these are things utterly unknown to the laws of this land, and which arise from a fundamental mistake of the whole order and tenor of our constitution.

The U.S. Supreme Court picked up Burke’s language in a 2001 case called Cook v. Gralike.

At issue in Cook was whether an amendment to the Missouri state constitution, which instructed each member of Missouri’s congressional delegation “to use all of his or her delegated powers to pass the Congressional Term Limits Amendment” violated the U.S. Constitution.

Justice Stevens, writing for a unanimous Court, held that it did violate the U.S. Cosntitution. He explained that Article VIII is designed to favor candidates who are willing to support a term-limits amendment and, as such, was an impermissible attempt to regulate an election.

In Footnote 16, Stevens wrote:

Of course, whether the members of a representative assembly should be bound by the views of their constituents, or by their own judgment, is a matter that has been the subject of debate since even before the Federal Union was established. For instance, in his classic speech to the electors of Bristol, Edmund Burke set forth the latter view.