Equal Protection

Not an Equal Protection Violation to Shut Down Political Campaign Headquarters but Not Legislative Offices

More from the Pennsylvania Supreme Court decision, which I've been blogging in parts.

|The Volokh Conspiracy |

From yesterday's Pennsylvania Supreme Court opinion in Friends of Danny DeVito [no, not that Danny DeVito] v. Wolf:

Petitioners contend that the Executive Order violates the equal protection clauses of the United States and Pennsylvania Constitutions…. "[W]hile the Equal Protection Clause assures that all similarly situated persons are treated alike, it does not obligate the government to treat all persons identically."

Petitioners contend that the Executive Order prevents DeVito Committee from using its principle place of business for operations in running Mr. DeVito's political campaign. In contrast, they argue that elected officials, including the state representative against whom Mr. DeVito is running, are permitted to continue to use their offices, staff, equipment and supplies at their discretion. Mr. DeVito further contends that he is similarly situated to both his political opponent and social advocacy organizations in that they all advocate for social and political causes, but elected officials and social advocacy groups are identified in the Executive Order as life-sustaining and thus are not barred from their physical place of operations.

Campaign offices and legislative offices are not similarly situated. When legislators, like Mr. DeVito's political opponent, use their district offices, they do so as government officials, not as candidates. Indeed, it is a crime for public officials to use public resources—including taxpayer funded offices, staff, or equipment—to run for reelection. See e.g., 18 Pa.C.S. § 3926 (theft of services); 18 Pa.C.S. § 4113 (misapplication of government property); 65 Pa.C.S. § 1103 (conflict of interest). As the Respondents correctly note, while the legislative office of Mr. DeVito's opponent remains open, albeit without public visitations, its operations are limited to serving the public during this pandemic and to voting remotely on legislation. But all candidates' physical offices, whether incumbent or challenger, must be closed. The Executive Order thus does not advantage or disadvantage any candidate or campaign committee.

Furthermore, DeVito Committee is not similarly situated to social advocacy groups. Social advocacy groups advocate for vulnerable individuals during this time of disaster. While Mr. DeVito personally may similarly advocate for worthy social and political causes, there is no indication that DeVito Committee does so nor is it the primary focus of the operation.

To the contrary, in the Emergency Application, Petitioners alleged that DeVito Committee's political candidate committee was formed to operate and administer a political campaign, and to that end, its members meet with volunteers, supporters, potential media, vendors and other persons or parties instrumental to conducting a political campaign, as well as conducting direct mail activities, press conferences and other promotions.

Finally, [other] Petitioners indicate that Blueberry Hill [Public Golf Course & Lounge] is similarly situated to municipal golf courses, but that the Executive Order has closed public, but not municipal, golf courses. As Respondents properly indicate, however, the list of life-sustaining businesses makes no distinction between public and municipal golf courses. To the extent that municipal golf courses remained open because they were subject to local control, i.e., municipal governments, Respondent cites to a growing list of municipal golf courses that are closed by reason of efforts to mitigate COVID-19….

It seems to me that, in practice, the Executive Order does in effect "advantage … [incumbent] candidate[s]" over challengers: While the incumbent whom DeVito is challenging can't use her office for overt campaigning, much of what she does as a legislator can indirectly promote her campaign (for instance, by keeping her in the public eye). But I think the court is right that such a "disparate impact" claim isn't enough for an equal protection challenge.

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NEXT: Penn. S. Ct. Holds Governor's Shut Down Order Was Statutorily Authorized, Didn't Violate Separation of Powers

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  1. This is unmitigated bullbleep — I hope he appeals this.
    Perhaps files a complaint with the FEC.

    People are going to get hurt if this crap doesn’t stop, soon.
    And the “similarly situated” has to be infective risk — which was missed here.

    1. The FEC has as much authority here as Trump does. (Not as Trump thinks or claims he does.)

      And your continued salivating over armed rebellion just makes you look (even more) like a kook.

      1. I want to echo David’s second point. Our politics are very different. But it really crosses a line when folks start saying “people are going to get hurt”.

        Anyone can legitimately argue that the response to the virus has been over-aggressive and underprotective of liberty. But folks should find ways to do that without implying a threat of mob violence.

        1. Dilan, critical mass will occur in Michigan in 20 Minutes.
          https://www.freep.com/story/news/local/michigan/2020/04/15/lansing-capitol-protest-michigan-stay-home-order/5136842002/

          The twit Governor can back down, or people WILL get hurt, and violence begets violence. Those are facts.

          1. “They’re doing a pretty good job of maintaining social distance,” Green said. “They’re being respectful and not causing any issues at all.”

            So, at ~ 3:00 p.m., that was the report from reality.

            Further reading discloses the demonstrators are ideologically-motivated idiots, out to back Trump, and oppose the governor, regardless of the facts. In short, people sort of like you, Ed.

            Please think carefully. That demonstration for which you seemed to cherish such fond hopes of violence? Apparently not going to happen the way you expected. But it probably will happen in a way which is notably worse, with virus casualties which could have been avoided. And that is true even though observers said social distancing was practiced, and officials said (inexplicably) that the demonstrators were not violating shut-down policy. There were too many on scene for that to have been uniformly and efficiently the case.

            So thanks for nothing, idiots. I have been trying very hard to stay civil, but my patience for deadly right-wing alternative reality is gone.

    2. ” People are going to get hurt if this crap doesn’t stop, soon.”

      All-talk, disaffected conservatives are among my favorite culture war casualties.

  2. “But all candidates’ physical offices, whether incumbent or challenger, must be closed. The Executive Order thus does not advantage or disadvantage any candidate or campaign committee.”

    This is stark nonsense. The incumbent can get visibility any time they want, in the normal operation of their job, the challenger is dead in the water. It’s the same reason incumbents favor restrictive campaign finance laws: They have overwhelming non-financial advantages, reduce spending enough, and those advantages can’t be overcome.

  3. He won’t cross the line established by the Volokh Conspiracy until he makes fun of conservatives, Republicans, and faux libertarians — for that, though, he could expect to be banned. Until then . . .

  4. But I think the court is right that such a “disparate impact” claim isn’t enough for an equal protection challenge.

    That, right there, illustrates one of the mysteries of the law to us laymen—without much diminishing the mystery. Why isn’t the very essence of this case wrapped up in explaining by what reasoning that relative judgment is to be made. Why does a legal expert get to just slide past that, and pronounce, apparently arbitrarily, that it “isn’t enough.”

    1. To be fair, this is a topic, (Why disparate impact isn’t enough to establish discriminatory treatment.) that gets a lot of talk, he might have thought the point already established: Disparate impact naturally emerges from non-discriminatory treatment, where the parties aren’t similarly situated. So, until you’ve established they’re similarly situated, disparate impact doesn’t demonstrate squat.

  5. I’m more incensed about the “social advocacy groups” being privileged over political campaign offices. Talk about favoring some kinds of speech over others.

    1. Is what a social advocacy group says part of the definition. By that I mean is there anything in the definition that would treat differently a left leaning advocacy group from a right leaning advocacy group. If the answer is no, which I suspect but know it is, then it doesn’t really favor “kinds of speech” but “type of speaker.” And while the latter isn’t meaningless I can understand how in a “similarly situated” analysis type does matter.

      1. *That should say “suspect but don’t know”

    2. The fix is in opening campaign offices, not in suppressing social advocacy. Both kinds of offices need to be run under stringent pandemic discipline.

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