John

Cooley's Attacks on Eastman Ballot Designation Ignore the Facts and the Law

John Eastman is widely regarded as one of the nation’s leading constitutional law scholars, certainly one of its leading conservative constitutional law scholars. He serves as Chairman of the Federalist Society’s Federalism and Separation of Powers practice group, is a senior fellow with the Claremont Institute and the Ashbrook Center, and is a former law clerk to Supreme Court Justice Clarence Thomas. In addition to his law degree from the University of Chicago, one of the nation’s premier law schools, he has a Ph.D. from the Claremont Graduate School, where he specialized in American Government, Political Philosophy, and Constitutional Law. He is co-author of a major textbook on constitutional law, has co-authored or edited five books, and has entries in the Oxford Encyclopedia of Legal History, the Oxford Companion to the Supreme Court of the United States, and the Heritage Guide to the Constitution. In addition, Dr. Eastman has published more than thirty
scholarly articles, appearing in such prestigious journals as the University of Chicago Law Review, the American Journal of Legal History, the Harvard Journal of Law and Public Policy, the Georgetown Law Journal, the University of California, Davis Law Review, the Nevada Law Journal, the Cato Supreme Court Review, the Drake Law Review, the BYU Law Journal of Public
Law, the Texas Review of Law and Politics, the Villanova Law Review, the New York University Journal of Law and Liberty, the Loyola of Los Angeles Law Review, the Catholic University Law Review, and the ILSA Journal of International and Comparative Law.

Dr. Eastman is more than a constitutional scholar, however. He was an appellate attorney with one of the nation’s leading law firms, and eleven years ago founded the Center for Constitutional Jurisprudence, a freedom-based public interest law firm affiliated with the Claremont Institute. On behalf of the Center, he has participated in more than fifty cases of constitutional significance before the Supreme Court of the United States, including such landmark cases as Newdow v. Congress (the Pledge of Allegiance case); Simmons v. Zelman-Harris (the school vouchers case); Morrison v. Virginia (limits on federal power under the Commerce Clause); McDonald v. Chicago (2nd Amendment rights); Kelo v. City of New London, CT (eminent domain abuse case); Hamdi v. Rumsfeld, Rasul v. Bush, and Holder v. Humanitarian Law Project (war on terrorism cases); Grutter v. Bollinger, Gratz v. Bollinger, and Adarand Constructors v. Mineta (opposing racial quotas); Boy Scouts of America v. Dale (defending Boy Scouts’ right to choose not to install an openly gay man as a scoutmaster); and U.S. Term Limits, Inc. v. Thornton (defending constitutionality of Arkansas Term Limits initiative).

In addition, for more than a decade Eastman has been called upon to represent and counsel state and local governments across the country because of his constitutional expertise. He was retained, for example, by the Florida Legislature in 2000 to help craft legislation that would protect that state’s electoral votes in the contested presidential election in a way that would meet constitutional muster. He represented the Town of Castle Rock, Colorado, before the Supreme Court of the United States in Town of Castle Rock, CO v. Gonzalez (2005), defending important claims of constitutional immunity by police departments. He represented members of the Nevada Legislature in parallel state and federal litigation challenging a state court mandate to not comply with a 2/3 vote provision for raising taxes in the state legislature. Guinn v. Legislature of Nevada; Angle v. Legislature of 2 Nevada (2003-04). And he represented members of the California Legislature in litigation challenging an attempt to increase state taxes without complying with a 2/3 vote provision for raising taxes in the state legislature. Howard Jarvis Taxpayers Ass’n, Senator David Cogdill, Assemblyman Michael Villines, et al. v. Legislature of the State of California (2009). He has advised state, county, and city governments here in California and from one end of the country to the other on major constitutional issues arising under state and federal constitutions, from the federal Establishment of Religion Clause to balanced budget requirements, from issues surrounding same-sex marriage to the federal stimulus bill. In all of these government representations, he has performed worked often undertaken by lawyers in the office of the Attorney General or other governmental agencies. In California, for example, the Attorney General is tasked by law to “give his or her opinion in writing to any Member of the Legislature, the Governor, Lieutenant Governor, Secretary of State, Controller, Treasurer, State Lands Commission, Superintendent of Public Instruction, Insurance Commissioner, any state agency, and any county counsel, district attorney, or sheriff when requested, upon any question of law relating to their respective offices.” Yet, quite often, government attorneys in state, county, or local offices lack the resources or specialized expertise necessary for proper assessment of complicated constitutional matters, and Eastman has frequently been called upon to lend his constitutional expertise.

Earlier this year, the State of South Dakota appointed Dr. Eastman as a Special Assistant Attorney General to represent the State in a potentially landmark case before the Supreme Court of the United States. The case involves complicated constitutional questions of state sovereign immunity and also the scope of the federal government’s power under the Constitution’s Spending Clause. Eastman was appointed to the position, pursuant to South Dakota law, because he is the leading expert in the country on the Spending Clause. His 2001 law review article, Restoring the ‘General’ to the General Welfare Clause, was the first to argue that the Spending Clause, like the Commerce Clause, had limits. He is the author of the entry on the Spending Clause in the Oxford Encyclopedia of Legal History. And in 2005 he participated as amicus curiae before the Supreme Court of the United States in Cutter v. Wilkinson, one of the only Spending Clause cases considered by the Supreme Court in the last quarter century.

Because of his decade of work representing state and local governments and his formal appointment as a Special Assistant Attorney General, Eastman requested that “Assistant Attorney General” be listed as his ballot designation. (He alternatively requested “Special Assistant Attorney-General,” but there was a legal question about whether Attorney-General can be hyphenated to comply with the requirement in California Election Law limiting ballot designations to three words).

Eastman’s principal opponent in the primary election falsely contended, without any evidentiary basis, that Eastman’s appointment as Special Assistant Attorney General “is merely a pro forma appellation that was only recently bestowed upon him by his allies in the South Dakota Attorney General's office specifically for the purpose of allowing him to attempt to use it as his ballot designation in the pending election.” That contention is false in several respects. First, the appointment is specifically authorized, and indeed required, by South Dakota law for attorneys retained to represent South Dakota in major litigation; it is therefore much more than a “pro forma 3 appellation,” and as noted above, the appointment was made because of Eastman’s nationallyrecognized expertise in the area. Second, Eastman has no “allies” in the South Dakota Attorney General’s office, nor did the appointment have anything to do with Eastman’s bid for Attorney General in California. Truth is often a casualty in political campaigns but, thankfully, the falsity of the claims made by Eastman’s opponent was demonstrated by sworn evidence provided by South Dakota officials. See attached Declaration of Dennis Rounds.

The Secretary of State and Eastman’s primary opponent also expressed concern that the “absence” of a geographic qualifier might mislead some voters into thinking Eastman’s appointment is in the California Attorney General’s office. Truth be told, Eastman was prohibited by law from including “South Dakota” in his requested designation (although he did include it in the publicly available supporting documentation) because California law limits ballot designations to three words. Although geographic terms are treated as one word, there was no way to include it without distorting the appointment title beyond recognition, as one particularly astute legal commentator noted here. Moreover, the Secretary of State has to our knowledge never before raised such a concern in a statewide ballot designation, and there were plenty of other examples of candidates
using out-of-jurisdiction positions as their ballot designation without a geographic qualifier. What is more, Eastman’s principal opponent, the Los Angeles County District Attorney, chose to omit the geographic qualifier from his own ballot designation even though the three-word limitation did not prohibit him from including it (“Los Angeles County” would all count as one word, under the law), undoubtedly because of a political calculation that identifying himself from Los Angeles might be detrimental in other parts of the state.

Eastman is also well known as the former and highly successful Dean of Chapman University School of Law, but the Secretary of State informed the Eastman campaign that the law prevented him from listing his former position as a ballot designation when he has other, “current” principal occupations or vocations, such as the South Dakota position. Of course, Eastman could have listed “law professor,” but that hardly conveys the depth of experience and expertise that make him
clearly the most qualified candidate for Attorney General in this election. “Assistant Attorney General,” or “Special Assistant Attorney-General,” his two requested alternatives for the ballot designation, was a much more accurate description of his qualifications for this important office, given the significant appellate litigation experience outlined above.

At the end of the day, the Democrat Secretary of State denied Eastman’s request. While not questioning the legitimacy of the appointment itself, the Secretary expressed concern that the lack of a geographic qualifier might lead some voters to think that Eastman held the office in California rather than elsewhere, even while acknowledging that similar out-of-jurisdiction positions had been previously approved for ballot designations in other elections in the State. The Secretary of State’s decision was upheld by the trial court after the hearing was postponed to the very last day possible, rendering any appeal impossible. The Court ordered the Secretary of State to list Eastman as “Constitutional Law Attorney” on the ballot instead.