This is an example of your traditional behavior of obscuring legitimate arguments with outlandish claims.

Have you ever met Marc Stier? Do you really think the "justification" he offers is in line with poll tests and literacy tests? They aren't. Those are aimed solely at taking the vote away from someone period--not when the vote occurs. Even you, a seasoned "politician" can understand that distinction.

His concern is legitimate to those who want to see some meaningful change in state and local government, which runs contrary to the change you want to see. Just like your concern is legitimate to those who want for PA to have more clout in the Presidential nomination process.

As for this:

and if you are on the same side as the Republican State Committee and hunters' groups, you are probably on the wrong side.

Can you simply debate on the merits versus mudslinging and ridiculous accusations. Or, has all those years in Harrisburg irreparably damaged your character?

So, I say this: open the flood gates. Call me whatever name you want, a shill or a shrill. But, if you think what Marc is advancing as a purpose is equal to a poll tax or poll test, you are just nuts. And, I'd be happy to go toe-to-toe with you and debate why they are different. You focus on 1 election--not the remaining primary candidates.

Also, why is it when someone disagrees with you, they are out of line with "progressive values." Maybe you are wrong.

I am working to elect Larry Farnese to the General Assembly. Unless otherwise expressly stated, this and every comment or blog I post on YPP and any action I take hereon is solely attributable to me and not Farnese or Friends of Farnese

Stier is basically right about Cohen's equal protection argument. It is dubious in the extreme.

To make an equal protection claim, you have to argue that that a group of individual citizens have been unfairly denied certain benefits or privileges by the state.

The state can defend itself by showing that there is some good reason for not giving this group the benefits or privileges in question.

As Cohen must know, the standard by which those putative reasons are evaluated vary depending on two things, first, whether a fundamental right is involved and, second, whether, the group that is denied some benefit or privilege falls under a suspect classification, that is, is a group that historically has been subject to discrimination.

Cohen is arguing that Pennsylvanians are being denied the right to have a vote in the Presidential nomination process that counts as heavily in the presidential primary process as the vote of citizens in states with early primaries.

Pennsylvanians are clearly not a group that falls under the heading suspect classification.

And while the right to vote is a fundamental right, Pennsylvanians are not being denied their right to vote for delegates to a presidential nominating convention. Given that the distribution of delegates is roughly proportional to the party vote in each state, their votes count just as heavily as the votes of those in the Iowa caucuses in choosing presidential nominees. So where is the discrimination?

Cohen's argument comes down to the fact that the early primaries have an influence on later primaries. They have a winnowing effect, and sharply reduce the field of candidates who have the attention and funds to run serious campaigns in later primaries. That is why your argument is deeply flawed.

First, while the right to vote is fundamental and, since the one person one vote decisions, the impact of the vote on electing representatives is as well, it is a huge stretch to say that because a great deal of winnowing has gone on before Pennsylvania votes, Pennsylvanians have been denied their fundamental rights.

If we were to consider the overall influence of one’s vote, beyond its role in electing people or delegates, something subject to judicial review, then all sorts of questions that are pretty well settled in our constitutional law would be subject to such review. For example, voters in states that are larger on Super Tuesday will have a greater impact on the presidential primary process because much more attention is given to the results in those states. Does that violate the fundamental rights of voters in small states? Voters in California, Washington and Oregon are sometimes dissuaded from going to the polls in general elections when they hear the results in New York? Does that deny their fundamental rights?

Second, the impact of one’s vote on the primary process will change as the presidential primary process changes. After all, it was not all that long ago that Pennsylvania’s late primary gave it a great deal of influence. (Remember 1976 and 1980, anyone?) And, as Stier points out, the process is continuing to change in ways that might once again make a late voting state, particularly a large one, very important. You yourself said that, if this were to happen, you would advocate moving the primary back to April. That, however, calls into question your notion that the some fundamental right is infringed by a late primary. Policies and practices that protect fundamental rights don’t change every ten years.

Indeed, to be meaningful at all, a fundamental right that can be enforced by the courts has to be pretty clear-cut. That is, whether a right is being denied or not has to be a pretty straightforward question subject to moral and legal but not empirical disagreements. Our fundamental rights do not change over time.

Consider this parallel. Some liberals have argued that people have welfare rights or equal opportunity rights that should be enforced by the courts. But the courts have never accepted this claim and most liberals would reject it. It is fairly clear when someone is being denied their right to freedom of speech and the remedy is also fairly clear. Or, where if it is not, the kinds of disputes that arise about freedom of speech do not rest on contested judgments of empirical matters. But it is not always clear when someone one is being denied a minimal level of welfare or income or opportunity. And even among those who would agree about this, there is dispute about how best to remedy the situation. How do we create equality of opportunity? Do we give people poor more money, or better schools and services, or jobs? And how far do we go in doing this? These are all public policy issues that require complicated judgments about how the world works. And our judgments will change over time as the nature of our political economy changes. In our constitutional tradition, these questions are left primarily to legislatures to settle.

Much the same is true for the question of the impact of a primary date. This is a political question that requires contested judgments about many matters, including how the presidential primary process will work out; whether an early primary will make it harder for challengers to state officials; and about whether moving just the presidential primary is worth the cost.

As Stier pointed out, we do not have a right to every good public policy. Every bad public policy does not violate our rights. I would add taht if we try to do away with the distinction between policy and rights, then we run the risk of losing the notion of a right at all. And that would be very bad for those of us who think the rights to civil liberty and to vote really are fundamental.

So, if having a big impact in the primary process is not a fundamental right, then all Pennsylvania has to show for its April primary to pass constitutional muster is that it has a rational reason for a late primary. And that is easy to do. After all, a state has to be concerned about many state and local offices as well as the presidency and it is certainly within its rights for state to be more concerned with choosing a primary date that serves its internal own purposes rather than one that serves the to give its citizens more impact in the presidential primary process. Stier gave one reason that a late primary might serve the purpose of Pennsylvanians. There are many others.

In addition, in setting the date of a primary state legislators are making laws that apply to themselves. This calls into question the idea that the state of Pennsylvania is discriminating against its own citizens by setting the primary date in April.

Moreover, it makes the argument for a judicial resolution to this issue really problematic. There is no question here of a majority making a decision that disenfranchises a minority. (If the federal government had mandated that the Pennsylvania primary be held in April, you would have a slightly better case.) If the majority of Pennsylvania citizens feel that they are disenfranchised by a late primary, they have the power to make their voices heard by electing and lobbying members of the General Assembly. There is no need for judicial action. And, as you know, courts with any integrity are generally unwilling to settle political questions, unless there is some reason to think that a majority has been acting unfairly to a minority.

So while Stier’s obviously facetious claim that Cohen JD should be revoked was unnecessarily provocative--although understandable given Cohen's demagogic response to his earlier post--Stuers claim that your equal protection argument is silly seems, if a little strongly put, entirely correct.

I’ve been lurking here for some time and I have to say that this is not the first time Cohen has made a bad legal argument. Indeed, I’m not sure Cohen takea legal argument terribly seriously since he once said something to the effect that judges can make the constitution say whatever they want it to say. That kind of results based jurisprudence has, thankfully, gone out of style. It is incorrect as a matter of fact and political morality. It is a morally bankrupt view because a court that was not constrained in any way by the text of the constitution and the previous traditional ways of interpreting that text would be an institution that is totally incompatible with democratic government. And it is incorrect as a description of constitutional jurisprudence because it forgets one important point: There are often good reasons on both sides of a case that comes before the Supreme Court. But that is not because the Justices can just make things up as they want. Rather, it is because the only cases that get to the Supreme Court are difficult ones to begin with. If Cohen were to bring suit on the basis of his equal protection argument for moving the Pennsylvania primary, he would be slammed dunked at the lowest level of review and the Supreme Court would never hear his case. Cohen is not calling for an extension, small or large, of previous equal protection case law but a total, and totally mistaken, rewriting of it.