With a few hours to reflect and a few minutes to talk to one of my wisest political friends (who shall remain nameless here), I have a few more thoughts , both legal and political, to offer regarding the lawsuit filed by Joe Harrington and Marian Olson challenging Tom Tancredo’s right to be on the ballot as a candidate for the American Constitution Party.

First, what precisely is the standing of Harrington and Olson to bring this case?  The answer: they don’t have standing.

It’s extremely difficult for people to gain the standing to sue just by being citizens who claim a rather broad “harm” which is no different than an intangible “harm” suffered by many others.

For example, attorney Philip Berg’s lawsuit challenging Barack Obama’s eligibility to be President of the United States based on Obama’s not proving that he is a natural born citizen was dismissed in 2008 by a federal judge who ruled that Berg lacked standing.  (Text of dismissal Memorandum and Order HERE.)

The odds of Harrington and Olson qualifying under the 3-pronged test laid out in the Supreme Court case of Lujan v. Defenders of Wildlife (2002) are vanishingly small.  From Lujan: “When the suit is one challenging the legality of government action or inaction, the nature and extent of facts that must be averred (at the summary judgment stage) or proved (at the trial stage) in order to establish standing depend considerably upon whether the plaintiff is himself an object of the action (or forgone action) at issue. “

A court likely will dismiss this suit in short order based on multiple precedents, including Berg.

As mentioned in the comments below, if there is a specific Colorado statute giving standing to any “elector", then my analysis of the standing issue would change.  I have not seen the statute, though Joe Harrington says it’s in there.  I’d also add that it shouldn’t take a lawsuit to get the Secretary of State to address a fundamental issue like this.

[I’ll be glad to make a modest wager (perhaps an ethanol-containing libation) with anyone (including Joe Harrington) on the issue of standing. I say the suit will be dismissed for lack of standing by Harrington and Olson.]

Second, this strikes me a bit like an in-kind contribution from Joe Harrington and Marian Olson to Dan Maes.  It appears that Harrington has given Maes the legal maximum $1050, with his wife giving an additional $525, based on the most recent filings with the Secretary of State.  To the extent that this suit is intended to further the political success of Dan Maes – the only person who might have standing to sue and would want to – the cost of the suit could be construed as an indirect contribution to the Maes campaign.  I would point out that there is probably some political benefit to Maes even if the suit gets thrown out rather quickly for lack of standing, and more importantly Joe Harrington clearly believes that.  Therefore, it is reasonable to wonder whether the legal bills should count as illegal in-kind contributions to Maes in excess of the legal maximum contribution which Harrington has already made.

I found the list of politicians to whom Joe Harrington has donated to be rather eye-opening. The list includes, in part: Barack Obama, Bill Richardson, Michael Bennet, Andrew Romanoff, Hillary Clinton, John McCain, Mitt Romney, and Ron Paul.  You’re free to draw your own conclusions; I offer no opinion on this list, not least because I consider Joe a friend despite thinking he’s gone off the deep end with his anything-goes support of Dan Maes.

Marian Olson, on the other hand, is not a serial political donor directly (though she has given in-kind contributions, such as on THIS report), but rather a serial litigant, having sued the city of Golden at least three times in the past decade.  I guess she finds her name on a legal filing to be the equivalent of 15 minutes of fame. (See HERE, HERE, and HERE.)

Third, is this not just the latest example of Dan Maes having someone else to pay his bills because he can’t?

As mentioned above, the only people whom I can imagine having standing to sue to remove Tancredo from the ballot are other candidates in the race.  Hickenlooper wouldn’t because he wants Tancredo in the race.  Therefore, if the suit would have merit if properly filed (and I do think it could), it should be Maes who files it.

But Maes can’t afford the legal fees and he can’t take contributions from the only guy willing to foot the bill, namely Joe Harrington.  (Also, he might not want to appear to be looking to win by eliminating competition rather than defeating it, though I doubt he’d be particularly troubled about going down that road.) Therefore, just as Maes asked Freda Poundstone for money (I believe her, not him), he now has someone else paying the bill.  To be very clear, I do not believe that Maes put Harrington and Olson up to this even though I assume Harrington, one of Maes’ most vocal supporters, kept Maes in the loop on what he was doing. (It doesn’t matter if that’s the case, though.)  So, it’s not precisely that Maes asked someone else to pay the bill; it’s just that his supporters know that if they don’t pay the bill, he won’t – he can’t.  It’s all the more reason that I can’t help but think of this as a campaign contribution.

As I said in my note yesterday afternoon, just the filing of the lawsuit brings some modest benefit to Maes from Tancredo having to explain, and Harrington and Olson intend that benefit.  While the benefit to Maes will be very small indeed if the story disappears in a few hours when a judge dismisses the case for lack of standing,  Joe Harrington has said that he intends to characterize Tancredo’s candidacy as illegal no matter what our government decides.  It’s a desperate move by an apparently desperate supporter of a desperate candidate and the whole lawsuit should not be treated as anything more.

Harrington and Olson’s obvious lack of standing makes the motion and petition worth less than the paper they’re printed on.

Finally, I would note that if Tancredo’s candidacy really is in violation of the law and the APC by-laws, then the candidacy should be disqualified, as much as I would always err on the side of leaving a candidate in a race if there is doubt.  It seems to me that the APC can create enough of a reasonable doubt in this situation (not saying that “reasonable doubt” is the technical legal standard in this sort of case) that such a disqualification won’t happen.  That said, if it’s clear to Secretary of State lawyers that the candidacy is invalid, they should do their jobs without having to be sued.  I would suggest the Secretary of State lawyers render their own opinion on this issue one way or another, and that the Secretary make a public statement about it and live by it, again regardless of the disposition of this case.  Avoiding the question simply makes the Secretary of State’s office look overly political – which it is, especially this year, especially with a Democrat in charge.