Law Students

Practice Tip: Claim The Obvious

By Casebook Sherpa

If you’re a Florida (or Michigan) resident suing the Democratic National Committee because their primary rules have disenfranchised you, it might be helpful to allege that you actually voted. From pages 6-7 of today’s 11th Circuit opinion in DiMaio v. DNC (citations omitted):

Notably, DiMaio never alleged that he actually voted, nor even so much as suggested that he intended to vote in the Florida Democratic primary. To the contrary, the complaint simply ?posit[ed]? that the DNC ?may be violating his rights under Article II and the 14th Amendment of the United States Constitution?; that enforcement of the DNC?s delegate-stripping rules ?may or may not violate [his] right to vote in a Presidential primary?; and that, ?[i]f the decision of the National Party violates [his] constitutional rights, it would be appropriate for this court to make such a finding.? As if to underscore the conditional nature of his injury, he also alleged that ?[i]f the decision of the National Party does not violate the Plaintiff?s constitutional rights, it would be appropriate for this court to make such a finding . . . .?

These allegations, whether standing alone or in concert, do not plead that the plaintiff suffered an injury in fact, the invasion of a legally protected interest that is concrete and particularized? — the first prong of the Lujan test. As a practical matter, DiMaio?s right to vote, protected by the Fourteenth Amendment, cannot be impaired by the DNC?s failure to consider a ballot that he did not cast in the first place.

(H/T: How Appealing)

Full post as published by Fight The Hypo on March 21, 2008 (boomark / email).