It’s not because the lawsuit was politically motivated. Everyone knows how unapologetically brutal politics can be. And it’s not because the lawsuit was brought to defame Ms. Cortes, either. Placing your name on a ballot is the functional equivalent of sending the world an open invitation to attack your character.
The reason the lawsuit against Olivia Cortes had to be aggressively defended, rather, is that it asked a judge, without statutory authorization, to inquire into the political beliefs, motivations, associations, and activities of ordinary citizens — and then to find legal liability where no law says there is: in the details of those ideologies, agendas, friends, and practices.
Tom Ryan, the plaintiff’s attorney, built the bulk of his case against Cortes around one concept: the political motivations of Ms. Cortes’ nomination petition circulators. After forcing Ms. Cortes’ petition circulators to appear in court by subpoena, Mr. Ryan asked them all, under oath:
• Whether they were Tea Party members and why;
• Whether they support Russell Pearce’s political agenda and why;
• Whether they will vote for Russell Pearce in the upcoming recall election and why;
• What they believe about the Constitution and why;
• How they could justify circulating petitions for Olivia Cortes — a woman few of them, if any, had ever met.
After establishing just how far, exactly, to the political Right these people can be found on the spectrum, Ryan executed what was probably the most constitutionally repugnant part of his litigation strategy — he required each of them to list every single political ally by name; that is, to identify each person they associate with politically. Then he asked them to describe the political beliefs and goals of their friends, one by one — are they conservative activists? Tea Party members? And so on.
When Mr. Ryan asked Cortes petition circulator Suzanne Dreher whether she understood that what she did could amount to a Class 5 felony under his theory of the law, Dreher broke down in tears. What “crime” did Ms. Dreher commit, you ask? As she circulated Cortes petitions, she told registered voters that if Olivia Cortes appeared on the ballot, Russell Pearce would have a better chance of being re-elected.
At its bloody roots, the First Amendment means one thing — and one thing only: The government has no right to pass judgment on the associations of its citizens — political, religious, ideological, or otherwise. Yet Mr. Ryan asked a Judge to invent a law whereby such associations can give rise to legal and criminal liability.
The Constitution was enacted to “secure the Blessings of Liberty.” It was not enacted to ensure the motivational purity of candidates who jump through legal hoops to have their names placed on election ballots — however desirable to democracy such motivational purity might be, and undoubtedly is.
In James Madison’s “well-constructed Union,” whether a person is a “sham” candidate is not a question for the courts to decide. We have a free press — the media can inquire into the political associations of our candidates. The voters can then issue judgments on those associations at the ballot box, by voting for and against their candidates of choice.
The political motivations of petition circulators form no part of our current law. The Legislature has prescribed the legal prerequisites to qualify for candidacy, such as age and residency requirements. Straightforwardly, it’s none of any court’s business what the political motivations of a candidate’s petition circulators are.
In the last analysis, it makes no difference whether you are Right or Left, partisan or independent, or altogether apolitical. Had Mr. Ryan been allowed to proceed with the lawsuit against Cortes, the consequences would be disastrous to the public good. All of a sudden, any political activist’s motives could be put on trial in courts of law.
These lawsuits would mean that the government would regularly have to evaluate the political associations and beliefs of its citizens in court. The legal costs of political activism would rise to intolerably high levels. All people would have real legal reasons to fear who they associated with because they might be asked to justify those associations on the stand.
In a word, it would be the beginning of the end of democracy in Arizona. So let’s hope no one ever brings a lawsuit like this again. Our free press is well-equipped to expose sham candidacies, and the people can judge politicians’ motivational purity for themselves.
Anthony Tsontakis, a Phoenix-based election law attorney, defended Ms. Cortes’ right to appear on the ballot in court. Mr. Tsontakis is also Associate Faculty at the University of Phoenix, where he teaches History of the U.S. Constitution. Follow him on Twitter @TsontakisLaw.