Sunni Arabs risk deligitimizing themselves by boycotting the Iraqi election.

The Iraqi election is just a week away and the linked AP article says questions remain as to how many Sunni Arabs will participate. Shiite Arabs and Sunni Kurds are expected to turn out in large numbers but worries remain that Sunni Arab participation will be low.

The article repeats the conventional wisdom that the legitimacy of the election requires high Sunni Arab turnout. "But if the vast majority of Sunnis shun the polls -- either out of fear or lack of confidence in the process -- it could undercut the new government's legitimacy, widen the fault line between Sunnis and the majority Shiites and possibly doom the U.S. military to years of struggle against a determined foe." The article further states: "A turnout that fails to attract Sunni Arab participation could produce a government unacceptable to Sunnis. This, warns [Interior Minister Falah] al-Naqib, could send Iraq into a downward spiral to civil war."

The security concern of a civil war is legitimate. However, it's questionable that the violence will subside even with widespread voter participation among Sunni Arabs. As recent statements by bin Laden and al-Zarqawi make clear the goals of the Sunni Islamists campaign of violence in Iraq is to prevent democracy from taking root, not to assure a legitimate election.

The conventional wisdom that the Iraqi election's legitimacy depends on high Sunni Arab turnout. The real question of legitimacy in this election is whether those who choose to boycott the election are a legitimate opposition. An election open to all citizens in Iraq is inherently legitimate because it is designed to obtain the consent of all the governed.

In electoral democracies some parties win and some parties lose. The winners gain their legitimacy by being selected by the people. The losers gain their legitimacy by agreeing to abide by the results and working within the system to change the results the next time around. Those who choose to stay out of the election de-legitimize themselves.

-tdr

Night of the Living Dims: The City Attorney Speaks (Update)

Although the city attorney's opinion got it right with respect to state law and the invalidity of the disputed write-in votes a portion of the city attorney's analysis seems suspect. According to the article, the city attorney suggests a judge could dismiss the Frye supporters' suits under the doctrine of laches. Laches is a doctrine that permits a judge to dismiss lawsuits because the parties sat on their rights and should have raised their claims earlier. The problem with the city attorney's suggestion that laches could operate here is that state law requires that an election contest lawsuit, like the suits in this case, be filed within 30 days after the election is certified. (Elections Code section 16401.) In other words, the lawsuits could not have been brought before the election and the Frye supporters filed their lawsuits within the statutory deadline. Laches could not be used to dismiss their suits.

-tdr

Night of the Living Dims: The City Attorney Speaks

According to today's San Diego Union-Tribune (linked in the title above) City Attorney Michael Aguirre has issued his office's unsolicited opinion on San Diego's mayoral election fiasco. His opinion comes to the sensible conclusion that votes cast in violation of California state law don't count. Like any lawyer he qualifies his opinion. Here by suggesting that the failure to count the disputed write-in votes may violate the voters' constitutional rights. The trouble with that view, however, is that a voter doesn't have a constitutional right to have their vote counted if it is not cast in accordance with state law. (Cal. Constitution, Art. 2, Sec. 2.5 and see here.)

The attorneys who have filed suits on behalf of Donna Frye's supporters understandably dispute Aguirre's conclusions. Both attorneys argue that city law trumps state law in a city election and since city law would not disqualify the disputed write-in votes Aguirre is wrong. The problem with their analysis is that San Diego's City Charter bars write-in candidates in the general election for mayor. Relying on city law is a dead end because an honest decision under that law would result in Frye's candidacy being declared invalid.

But a victory in court is no longer what is driving the post-election challenges. If it were, the losing candidate would have filed a suit herself. While Frye has not filed any suit, and says she has no involvement with the litigation, she has not conceded the election. She also refused to certify the election results when the City Council voted to certify them. And she continues to make statements that undermine the legitimacy of the election. For instance, the one she made in the Union-Tribune article: "What I will say is what I have said all along, that all the votes should be counted."

Frye's position is one that resonates politically with many voters regardless of its weak legal basis. Moreover, although Mayor Dick Murphy's legal standing as the mayor is strong, his political standing is not.

Thus, the political tactic in play now appears to be to cast doubt on the election results and Murphy's legitimacy by playing out the weak legal hand for as long as politically possible. The goal of this tactic is to set up a recall election sometime in the middle of 2005.

Murphy's playing this game with half a hand. He's pursuing a strong legal strategy but he's not playing politics at all. If he were, he'd be doing more to undermine Frye's political standing and strengthen his own. With all the problems facing the city this year, and with Murphy not playing any PR hand, Frye has a very good chance of successfully recalling the mayor and getting herself elected to succeed him.

-tdr