Potts v. UVA Center for Politics

I attended the preliminary injunction hearing at noon today before Judge Moon of the Federal District Court of the Western District of Virginia. Arguments lasted from noon until around 1:15 p.m. with Larry Sabato himself in attendance, but Russ Potts noticeably absent, presumably campaigning around the state.

Dan Carroll, Potts's lawyer, made an articulate and eloquent argument that the 15% rule was biased against third party candidates and thus not viewpoint neutral despite its application to ever debate ever hosted by the UVA Center for Politics, which took the rule from the Commission on Presidential Debates.

Mr. Broadus, the attorney for Sabato, essentially pointed to the fact that the 15% rule has never been overturned even though it is used on the presidential level and broadly used throughout the several states. He also pointed to the fact that there have been numerous instances of independent candidates polling well better than 15% of the vote and at times winning gubernatorial elections. Mr. Carroll proceeded to claim that Jesse Ventura only won because he was allowed to participate in the debates, without citing any stats as to whether Ventura had 15% before the debates, which I would guess that he did have.

Mr. Carroll consistently claimed that this was an abridgment of political speech, worsened by the fact that the Center for Politics is in part sponsored by the state of Virginia, receiving half a million dollars a year to educate and promote interest in elections. He also argued that the Forbes opinion of the Supreme Court had established an "appreciable public support test," which Potts met.

Judge Moon seemed to be skeptical at points of where then should the line be drawn to determine who is allowed into a debate, and implied that he thought the 15% test very rational, stating "the question is whether it's constitutional or not, not whether it's fair." But he also had numerous questions for the Center for Politics and expressed his lack of respect for the argument that Potts could have brought the suit sooner since the deadline wasn't until October 6 for the 15%.

The Center for Politics in addition claimed that since it was an arm of the Commonwealth of Virginia it had immunity under the 11th Amendment. Mr. Broadus referred to this request for injunctive relief as potentially "injurious to the academic process" in addition to being injurious to this University and the Commonwealth of Virginia.

All in all, pretty interesting little hearing. Judge Moon will have an opinion before nightfall and he mentioned that Potts might be appealing it to the 4th Circuit as he walked out.