Tuesday, July 22, 2008

Jimmy Fahrenholtz disqualified from 2nd District Congressional race

"Jimmy Fahrenholtz has been disqualified from the 2nd Congressional District race, according to Jacques Berry from the La. Sec. of State office.

Fahrenholtz, a Orleans Parish School Board member, said on qualification papers that he did not have any outstanding campaign finance fines from running for school board, however the judge found he does have fines still out against him."

Full article

Fahrenholtz's disqualification presents an interesting legal question. The U.S. Supreme Court ruled in U.S. Term Limits, Inc. v. Thornton that the U.S. Constitution's lists of qualifications for members of the U.S. House and U.S. Senate are exclusive. States cannot add to them. For example, a state may not prohibit a convicted felon (even one who is currently incarcerated) from running for Congress, so long as he or she meets the requirements set forth in Article One.

For U.S. Representatives, those requirements are:
1. Be at least 25 years old.
2. Have been a U.S. citizen for at least 7 years.
3. At the time of the election, be an inhabitant of the state from which he or she is chosen.

If states cannot legally prohibit convicted felons from running for Congress, it does not seem like they could prohibit people who owe campaign finance fines from running for Congress, either. (Please note that Louisiana can place such restrictions on state and local candidates.)

From the news stories I've read, it's not really clear whether Fahrenholtz was disqualified simply because he owed the fines or because he falsely stated on his qualifying form that he did not owe any such fines. If the latter is the reason, then the case might be more difficult.

However, he may still argue that the fault lies with the qualifying form itself.

The current qualifying form provided by the Louisiana Secretary of State contains the following clause:

6. I do not owe any outstanding fines, fees, or penalties pursuant to the Campaign Finance Disclosure Act, and I acknowledge that I am subject to the provisions of the Campaign Finance Disclosure Act if I am a candidate for any office other than United States Senator, Representative in Congress, or member of a committee of a political party. [R.S. 18:463A(2)(a), 18:1481, et seq.]

A candidate does not have the option of marking "yes" or "no" to the above statement. It is merely listed on the form along with several other statements, the last of which is:

10. I meet the qualifications of the office for which I am qualifying; I have read this Notice of Candidacy; and all of the statements contained in it are true and correct. [R.S. 18:463A.(2)]

By signing the form, the candidate is affirming that all the foregoing statements are true. He has no way of saying that some are true and some are not, but that the untrue ones are irrelevant to his legal qualifications as a candidate.

If the state's ban on candidacy by people who owe campaign finance fines cannot be constitutionally applied to U.S. Congressional candidates, then there is an obvious problem. Even though there is no valid law to stop a person who owes such fines from running for Congress, the qualifying form provided by the Secretary of State's office is an obstacle that achieves that same result.

Fahrenholtz might argue that the form itself is invalid because it seeks to add to the Constitution's qualifications for Congressional candidates.

Such a case would also help any convicted felons who want to run for Congress in Louisiana. The current qualifying form also contains the following clause:

9. I am not currently under an order of imprisonment for conviction of a felony, and I am not prohibited from qualifying as a candidate for conviction of a felony pursuant to Article 1, Section 10 of the Constitution of Louisiana. [R.S. 18:463A.(2)]

The first part of that clause is clearly unconstitutional if applied to Congressional elections, but no imprisoned felon could complete the required form without being made into a liar. The second part of the clause is vague enough that it probably doesn't matter. A convicted felon isn't "prohibited from qualifying as a candidate...pursuant to Article 1, Section 10 of the Constitution of Louisiana" since that part of the state's constitution cannot be applied to U.S. Congressional candidates.

There is a simple way that the Secretary of State could avoid this problem. He could provide one qualifying form (like the current one) for state and local candidates and another qualifying form (without the unconstitutional verbiage) for candidates for U.S. Representative or U.S. Senator.

In the Secretary of State's defense, RS 18:463A.(2)(a) would (if it were not partially unconstitutional) require the current, flawed form.

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