March 19, 2004
Put up or shut up

Today the U.S. Third Circuit upheld Delaware’s modest “put up or shut up” approach to qualifying prospective candidates for political office.

It’s a fair decision, and one that may also provide a useful primer or two for other states, whose ballot requirements may not be so easy to defend.

Steven Biener is an attorney in Wilmington. He decided to run for Congress in the 2002 Democratic primary.

Delaware’s election law provides two distinct methods to qualify, and the difference is based on the candidate’s resources.

A candidate who makes a sufficient showing of poverty can make it on the ballot by obtaining enough signatures from registered voters. On the other hand, any candidate who’s not poverty-stricken must pay a fee to the party. That fee cannot exceed 1% of the total salary that the successful candidate would be paid during the full term of the particular office.

In Biener’s case, that meant he had to come up with $3,000. On the other hand, he didn’t have to pay it from his own bank account—under the election code, contributions can be freely accepted for this purpose.

Biener eventually paid the fee, ran in the primary, and lost with 48% of the vote. (Full disclosure—I voted for him.)

Nonetheless, Biener still complained about having to pay the fee, and kept his lawsuit alive. The District Court ruled against him, and the appellate panel issued a fairly blunt opinion affirming the lower court.

[S]tates still have the right to regulate elections by imposing reasonable requirements on candidates [citation omitted]…. Here, there is no avowed purpose to evade the constitution and exclude a class; instead, the purpose of the filing fee is to keep Delaware’s ballots manageable.

***

Equal protection jurisprudence mandates a ballot-access alternative for those unable to pay a filing fee. Delaware law complies with this precedent by providing an alternative for indigent candidates. Here, Biener alleges only an unwillingness, not an inability, to pay.

***

The justification for the filing fee offered by both the State of Delaware and the Party is that it will help distinguish serious from non-serious candidates to keep the ballot manageable. The Supreme Court has recognized that the interest in keeping ballots manageable, often manifested in a filing fee, is an objective “of the highest order.” [citation omitted].

There’s nothing particularly stunning about this result, given the reasonable structure set up in the Delaware election law. Indigent candidates are given an achievable alternative to ponying up the money, and for those who can’t use that option the 1% fee is not a significant disincentive.  It’s just enough to dissuade the kind of mischief that could happen if ballot access was completely free.

March 18, 2004
Foggy morning

Here are two photographs I shot this morning on the way to work, as a fog slowly lifted through Delaware's lower two counties.

This view looks at the eastern edge of Waples Pond, near Prime Hook National Wildlife Refuge:

This next picture shows a tidal creek that empties into the St. Jones River south of Dover, at flood stage:

Sometimes there are distinct benefits to commuting to work.

March 18, 2004
NCAAs

I recently developed a keen interest in how certain teams would perform in the NCAA Mens basketball tournament.

Those teams were Kentucky, Alabama-Birmingham, Charlotte, Wake Forest, Air Force, Princeton, Texas-San Antonio, and Louisiana-Lafayette.

Within a few hours of the first tip-off, however, I seem to have lost interest in Charlotte, Princeton, and Texas-San Antonio.

I hope to retain my interest in the remaining five teams for as long as possible.

March 17, 2004
Don’t hold back--tell us how you really feel.

On rare occasions an appellate court will issue a surprisingly graceless opinion.

The probability that a petulant tone will creep into the text explaining the decision greatly increases when the judges involved have already been reversed by a higher court in the same case.

It happened today in a Ninth Circuit per curiam opinion issued by Circuit Judges Dorothy W. Nelson, Stephen Reinhardt, and Sidney R. Thomas.

The case involved Alaska’s sex offender registration and notification statute, the terms of which extended to those convicted prior to the new law’s enactment.

Several of these ex-convicts filed suit challenging the law under the Ex Post Facto Clause, as well as on procedural and substantive due process grounds.

In the case’s first appearance before the Ninth Circuit, the panel struck down the law based on the Ex Post Facto claim. The Supreme Court reversed the panel’s decision, however, and remanded the case to the circuit. Doe v. Otte, 259 F.3d 979 (9th Cir. 2001), rev’d and remanded, Smith v. Doe, 538 U.S. 84 (2003).

After reviewing the procedural history, the panel turned its attention to the sex offenders’ remaining due process claims.

At that point, the panel’s peevishness made several appearances. The panel explained that its decision was compelled by Supreme Court precedent with which it obviously disagreed:

…Alaska’s sex offender statute bases the registration and notification requirements on the sole fact of plaintiffs’ convictions. Accordingly, bound by Connecticut Department of Public Safety, [538 U.S. 1 (2003),] we hold that Alaska’s sex offender registration law does not deprive the Does of procedural due process.

The Does also contend that Alaska’s sex offender registration and notification requirements violate their Fourteenth Amendment right to substantive due process by infringing their fundamental interests in life, liberty, and the property. Again, we are bound by controlling Supreme Court law.

***

Under [Washington v.] Glucksberg, [521 U.S. 702, 727 (1997)], we are forced to conclude that persons who have been convicted of serious sex offenses do not have a fundamental right to be free from the registration and notification requirements set forth in the Alaska statute.

*** 

[A]lthough the Does possess liberty interests that are indeed important, Smith precludes our granting them relief.

Because we do not believe that Glucksberg and Smith permit us to reach any other result in this case, we conclude that the Alaska law does not violate the Does’ rights to substantive due process.

Quite a choice of terms--"bound by," "bound by," "forced to conclude," "preclude[d]," and "not ... permit[ted]."

It’s as if the panel’s primary intent was to make sure no one blamed them for the result.

With all due respect, that goal could have been achieved with a far different tone than was repeatedly expressed in this opinion.

March 16, 2004
Didn't really need to create a new name

An AP story about occasionally lapsing vegetarians included this intriguing mention of a new name for those who eat both meat and vegetable:

Even after five years, Christy Pugh has no trouble sticking to her vegetarian regimen.

The secret to her success? Eating meat….

Pugh is one of a growing number of part-time vegetarians whose loose adherence to the meat-free diet is transforming a decades-old movement and the industry that feeds it.

These so-called "flexitarians" - a term voted most useful word of 2003 by the American Dialect Society - are motivated less by animal rights than by a growing body of medical data that suggests health benefits from eating more vegetarian foods.

I enjoy learning about the varieties of American speech patterns as much if not more than most. Nonetheless, after reading this story I couldn't help thinking that for a very long time, the word "omnivore" has been an accurate description of most humans, as well as a true statement of our basic nature regarding our means of sustenance.

It still fits.

If I were a member of the American Dialect Society, I believe I would have filed a respectful dissent.

March 15, 2004
Fool me once….

I didn’t participate in any presidential campaign work until the 1968 elections. As a 14-year-old at that time, my efforts were decidedly minor in any event. Nonetheless, I distinctly recall one part of the foreign policy issues that became a central focus for months.

Thousands of voters were probably swayed by the reported announcement that the Republican challenger, Richard Nixon, allegedly had a secret plan to end the war. If I recall correctly, he even said he wouldn’t run for a second term if his undisclosed plan didn’t succeed.

Nixon’s failure to keep that promise convinced me to work for McGovern in 1972, although it was obvious all along who was going to win the election.

Recent events reminded me of the potential pitfalls relating to foreign policy and presidential campaign tactics.

Here’s the story as reported by Reuters:

Without naming anybody, Kerry said he had received words of encouragement from leaders abroad who were eager to see him defeat Bush on Nov. 2.

"I've met foreign leaders who can't go out and say this publicly, but boy they look at you and say, 'You've got to win this, you've got to beat this guy, we need a new policy,' things like that," he said.

This time, however, many folks don’t seem quite so ready to buy what someone’s trying to sell them:

Sen. John Kerry was put on the defensive Sunday after being challenged to name the foreign leaders he claims are eager for the defeat of President Bush….

Asked by reporters for more specifics, Kerry would identify them only as allies.

Kerry also became a bit snippy with a questioner at a Bethlehem, Pennsylvania meeting who had the temerity to push for information about when Kerry supposedly met with these alleged foreign leaders:

Kerry shot back: "That's none of your business."

Fool me once….

UPDATE: I received a cordial note from a reader who pointed to a piece by William Safire explaining the origin of the "secret plan" claim. This caused a re-write of the second paragraph of this post.

March 14, 2004
Some fun with white wine and cream 

The other day I bought a few pork blade steaks at the local supermarket.

Somehow I had never before seen that particular cut of meat. After tonight’s dinner, however, I’m glad I bought them.

I based the following on a recipe I found for pork tenderloin at Chef2Chef.

Ingredients:

Pork blade steak (approximately 1 pound)
1 tbs. ground double superfine mustard
1 tsp. dried thyme
½ tsp. salt
½ tsp. pepper
½ tsp. creole seasoning
1 clove garlic, finely chopped
2 tbs. olive oil
1 cup Pinot Grigio white wine
1 cup heavy whipping cream
1 tbs. parsley flakes

Angel hair pasta, prepared per box instructions

Instructions:

(Use a cast iron skillet that can be used in the oven and on a range top.)

Trim most fat from the blade steak, and pat dry with paper towels. In a small bowl, combine the mustard, thyme, salt, pepper, creole seasoning, and chopped garlic, and then rub the mixture on both sides of the steak.

Heat the oil in the skillet on the range at medium heat, and brown the steak on both sides. Add the wine and place the skillet in the oven, roasting for 45 minutes at 350 degrees.

Return the pan to the range top, with the heat set to simmer. Remove the steak and set aside. Scrape the bottom of the skillet to dislodge any pieces, and add the cream and parsley flakes. As the mixture thickens, slice the steak and return it to the skillet. Remove from heat after five minutes or so, and serve over the angel hair pasta.

Serves two.

March 14, 2004
Shameless self-promotion

Tonight I posted my latest golf book review—Bullets, Bombs & Birdies: Golf in the Time of War, by Dale Concannon. This book should appeal to both history and golf buffs.