1. The Supremes just upheld the Top 2 Primary law on its face regardless of ANY earlier Supremes opinion.

   See footnote 7 of the WA opinion —

   It is true that parties may no longer indicate their nominees on the ballot, but that is unexceptionable: The First Amendment does not give political parties a right to have their nominees designated as such on the ballot. See Timmons v. Twin Cities Area New Party, 520 U. S. 351, 362–363 (1997) (“We are unpersuaded, however, by the party’s contention that it has a right to use the ballot itself to send a particularized message, to its candidate and to the voters, about the nature of its support for the candidate”). Parties do not gain such a right simply because the State affords candidates the opportunity to indicate their party preference on the ballot. “Ballots serve primarily to elect candidates, not as forums for political expression.” Id., at 363.

2. That footnote is about the associational rights of political parties — the basis of the lawsuit that was before the court — and has nothing to do with the potential future lawsuit Richard is recommending, which would be about ballot access for candidates.

3. Question – does anyone know when New York and D.C. are going to open up for petitioning?

4. Main opinion –

   The flaw in this argument is that, unlike the California primary, the I–872 primary does not, by its terms, choose parties’ nominees. The essence of nomination — the choice of a party representative — does not occur under I–872. The law never refers to the candidates as nominees of any party, nor does it treat them as such. To the contrary, the election regulations specifically provide that the primary “does not serve to determine the nominees of a political party but serves to winnow the number of candidates to a final list of two for the general election.” Wash. Admin. Code §434–262–012. The top two candidates from the primary election proceed to the general election regardless of their party preferences. Whether parties nominate their own candidates outside the state-run primary is simply irrelevant. In fact, parties may now nominate candidates by whatever mechanism they choose because I–872 repealed Washington’s prior regulations governing party nominations. FN 7
   —–
   From the top article — The filing fee is the only ballot access barrier to the August primary (with an alternative nominating petition for poor folks).

   Come in first or second in the primary – get on the general election ballots ???

   How long have top 2N totally nonpartisan primaries been around — since the early 1900s ???

   Folks can spin the Supremes opinion until Doomsday.

   Sorry — candidate elections are about electing candidates.

   As usual – NO primaries are needed.

   P.R. for legislative body offices.

   Approval Voting for executive / judicial offices.

5. They have to file with the WA State Public Disclosure Commission, even if they do not raise or spend the $5k that (at least used to?) trigger FEC filing. They do that to try to keep us crackpots with shady pasts off the ballot.

   It would be good if some young Leftist blood gave Jim McDermott (CD 7/Seattle) the heave ho this year.

6. That paragraph is also about parties, not candidates. That is because the plaintiffs filed the lawsuit as parties, party officials, and party members, not candidates. The Supreme Court is not in the business of proclaiming a law to be constitutional. It responds narrowly to plaintiffs’ specific arguments for a law’s unconstitutionality.

   If anything, the cited paragraph will help clarify the issues in a prospective as-applied lawsuit filed by candidates.

   Unlike other states, candidates in Washington will not be running in the primary in order to gain the associational benefits of a party nomination. They will do so because it is the only way they can access the general election ballot.

   So if a candidate gets 15 or 20 percent of the vote in a Washington Congressional primary and does not get on the general election ballot, that will be a very different situation than getting 15 or 20 (or even 45) percent in a party primary and not getting on the general election ballot. In the latter case, independent or minor-party ballot access is available as an alternative.

7. Deran, I would be surprised if Washington state requires congressional candidates to file campaign finance documents with the state. When Minnesota tried to pass similar laws, the 8th circuit said Congress has pre-empted the field of campaign finance for congressional elections. States can’t require candidates for Congress to do anything in the campaign finance area.

8. The analogy (suggested by post #4) between typical non-partisan elections with run-offs, and congressional elections, is flawed. In a typical non-partisan election with a run-off, the first election IS an election. An “election” is defined as an event at which someone may be elected. But no one can be elected in the Washington August primary, because there is always the November round. Even if one person is on the ballot in November (which would happen if only one person filed for the August ballot), that one person could still be defeated in November because Washington state has write-in space on the ballot in November for all office.

   If forcing someone to run in a primary is a substitute for access to the November ballot, then George Wallace would not have won the US Supreme Court case Williams v Rhodes in 1968. Wallace was free in 1968 to run in the Ohio Democratic presidential primary. He only needed 1,000 signatures for that. And he was a Democrat. But the US Supreme Court said there had to be a way directly onto the general election ballot that was easier than a 15% petition.

9. Folks can look at the ENTIRE election code in WA State for all the definitions of things like *election*.

   Look for RCW = Revised Code of Washington.

   #7 and #8 — The latest and greatest Supreme opinion trumps any earlier opinion — whatever such earlier opinion said about anything.

   The Supremes do this stuff ALL the time.

   A new opinion is NOT consistent with an earlier opinion.

   Several opinions on the subject happen — one of them then magically says that the first early opinion has been so eroded that it has de facto overruled by later opinions —

   i.e. what has been going on and on since 1968 — a mere 40 years of illogical / irrational UNEQUAL Supremes opinions on ballot access.

   What happened to separate- is- NOT- equal from Brown v. Bd of Ed ??? — NOT being applied to ballot access.

   I.E. — the ENTIRE screwed up line of ballot access cases starting with Williams in 1968 must be overruled to end the chaos.

   One or more EQUAL tests for ALL candidates for the SAME office in the SAME area to get on the ballots.

   Example –
   Test 1 – EQUAL nominating petition to get on primary ballots
   Test 2 – Come in first or second in a top 2 primary to get on general election ballots.

   Again – NO Stone Age primaries are needed.

   Direct general election ballot access via equal nominating petitions.

   P.R. for legislative body elections

   Approval Voting for executive / legislative offices.

   This stuff AIN’T atomic physics.

10. Several opinions on the subject happen — one of them then magically says that the first early opinion has been so eroded that it has been de facto overruled by later opinions —

    errata — been added

11. By ruling on a single election law issue, the Supreme Court does not overrule every existing election law precedent, only the ones inconsistent with the new opinion.

    In any case, if the Supreme Court applies the “separate is not equal” concept to the Washington system in response to an as-applied candidate challenge, they will strike it down.

    A system in which a candidate in one Congressional district can get on the general election ballot with 5 percent of the primary vote, while a candidate in the neighboring Congressional district can get 20 percent of the primary vote and be denied access to the general election ballot, has nothing to do with equality.

12. #11 — What 2 gerrymander districts ever have the same results – in primaries or general elections ???

    Unequal votes in getting nominated (getting on general election ballots).

    Unequal votes in getting elected.

    The ANTI-Democracy gerrymander mess is a separate mess that the MORON Supremes have totally screwed up — akin however to the separate- is- not- equal ballot access mess in most States.

13. The primary election notes have not yet been updated to show the Supremes opinion.

    Who dreamed up the *winnowing* language in the primary section ??? A WA State fisher folk ???
    ——-
    RCW 29A.04.043
    Election.

    “Election” when used alone means a general election except where the context indicates that a special election is included. “Election” when used without qualification does not include a primary.

    [2003 c 111 § 108. Prior: 1990 c 59 § 5; 1965 c 9 § 29.01.050; prior: 1907 c 209 § 1, part; RRS § 5177(c). See also 1950 ex.s. c 14 § 3. Formerly RCW 29.01.050.]
    Notes:
    Intent — Effective date — 1990 c 59: See notes following RCW 29A.04.013.

    ——

    RCW 29A.04.073
    General election.

    “General election” means an election required to be held on a fixed date recurring at regular intervals.

    [2003 c 111 § 113. Prior: 1965 c 9 §29.01.070 . Formerly RCW 29.01.070.]
    ——
    RCW 29A.04.127
    Primary. (Effective if unconstitutionality of Initiative Measure No. 872 is reversed by pending appeal.)

    “Primary” or “primary election” means a procedure for winnowing candidates for public office to a final list of two as part of a special or general election. Each voter has the right to cast a vote for any candidate for each office without any limitation based on party preference or affiliation, of either the voter or the candidate.

    [2005 c 2 § 5 (Initiative Measure No. 872, approved November 2, 2004); 2003 c 111 § 122. Prior: 1965 c 9 §29.01.130 ; prior: 1907 c 209 § 1, part; RRS § 5177(a). See also 1950 ex.s. c 14 § 2. Formerly RCW 29.01.130.]
    Notes:
    Reviser’s note: (1) Initiative Measure No. 872 was declared unconstitutional in its entirety in Washington State Republican Party, et al. v. Logan, et al., U.S.D.C. No. CV05-0927-TSZ (W.D. Wash. 2005). The decision was affirmed in Washington State Republican Party v. State of Washington, Nos. 05-35774, 05-35780 (9th Cir. 2006). The decision was under appeal at the time this material was published.

    (2) RCW 29A.04.127 was amended by 2005 c 2 § 5 (Initiative Measure No. 872) without cognizance of its repeal by 2004 c 271 § 193. For rule of construction, see RCW 1.12.025.

    Short title — Intent — Contingent effective date — 2005 c 2 (Initiative Measure No. 872): See notes following RCW 29A.52.112.

    Nonpartisan primaries: RCW 29A.52.210 through 29A.52.240.
    Partisan primaries: RCW 29A.52.111 through 29A.52.130.
    Presidential primary: RCW 29A.56.010 through 29A.56.060.
    Times for holding primaries: RCW 29A.04.311.
    ———-
    RCW 29A.04.128
    Primary.

    “Primary” or “primary election” means a statutory procedure for nominating candidates to public office at the polls.

    [2004 c 271 § 152.]

14. The presidential preference primary in 1968 (at issue in ‘Williams v Rhodes’) was for the purpose of selecting delegates to the Democratic National Convention. George Wallace was not seeking the nomination of the Democratic Party in 1968. There is no reason to confuse a presidential preference primary with a direct party primary for purposes of nominating party candidates for a state or federal officer, nor the latter with a Top 2 primary which has the purpose of winnowing the field for the general election.

    ps For bonus points, who won the Ohio Democratic presidential primary in 1968?

    Williams v Rhodes is quite simple. Ohio law made it virtually impossible for a new party to qualify for the procedure that Ohio had defined for appointing its presidential electors – the general election where party slates contested for popular votes. The 450,000 petition signatures was only one of the barriers that Ohio had set in front of new parties.

    Voters who might wish to have Wallace electors appointed from Ohio were denied the right to even cast a vote for them.

    In Washington’s Top 2 primary, candidates can easily qualify for the primary. No equal protection concerns there. Groups of voters may organize to support a candidate. No 1st Amendment political association concerns there. At the primary, all voters regardless of their political faith, or lack thereof, may participate, and are not required to express a political faith in order to participate, even in secret. It does a better job of protecting 1st Amendment rights of voters to not be coerced into an expression of political faith as a prerequisite to participation in an election of state officers. All qualified voters may participate on a totally equal basis, and the candidates who advance to the general election have an equal opportunity to attract votes.

    In ‘Munro v. Socialist Workers Party’, Washington had modified their blanket primary system. Originally, major party candidates had been nominated in the blanket primary, while minor party candidates had been nominated in conventions held at the same time. IOW, parties regardless of their size nominated candidates for the general election ballot in a democratic process.

    While a State may structure their elections such that the general election is a contest between nominees of parties, they are not _required_ to do so. Once they make that decision, then there has to be a reasonable opportunity for all parties to place their nominees on the ballot. The ‘modicum of support’ standard is applied to nominees of parties, or the party for all of its nominees. It simply has no meaning when applied to advancement from a party.

    With its blanket primary, Washington was conducting two primaries on the same ballot, with voters able to switch between parties on a per office basis. They then switched to a system where minor parties held their convention prior to the primary and then placed the nominee on the primary ballot where he had to receive 1% of the total vote to be placed on the general election ballot. In effect, they were then conducting 3 or more primaries on the same ballot, with voters able to participate in the choice of the major party candidates, or not vote in a primary, but vote to endorse the nominee of a minor party.

    One key finding of ‘Munro’ was that a minor party candidate might draw on voters of all parties to gather his 1% of the vote. But that was exactly what undid the blanket party. A Socialist Worker (or any other party) voter could jump from primary to endorsement and back. After helping the Socialist Worker nominee for Senator get on the general election ballot, he could then intrude on the choice of the Democrats for Governor, and then corrupt the choice of the Republicans for some other office.

    So if the Supreme Court is going to apply Munro to the Top 2 primary, it is going to have to recognize that it was based on an unconsititutional and discredited quasi-election.

    In ‘Smith v Allwright’ the Supreme Court recognized that the ‘Classic’ case had fused “the primary and general elections into a single instrumentality for choice of officers”. The only way to square this with the November congressional election date, is that the date applies only to the stage in which the reprsentative or senator is usually determined (subject to possible failure such as when there is a majority requirement).

    So how do you square the concept of compelled speech in the form of party registration as a prerequisite to participate in a single instrumentality for choice of officers?

15. http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=393&invol=23

    Williams v. Rhodes 1968

    Check it out — a mere 40 years of having New Age separate and UNEQUAL ballot access laws — due to the party hack Supremes and LOTS of MORON lawyers with BAD arguments.

    NO mention of Brown v. Bd of Ed 1954 in Williams.

    Short memeries in the bad old days of the Vietnam War ?

16. #6 From the main opinion in # 4 —

    The top two candidates from the primary election proceed to the general election regardless of their party preferences.
    —-

    Note the *top two candidates*.

17. Jim R #14 says: “So if the Supreme Court is going to apply Munro to the Top 2 primary, it is going to have to recognize that it was based on an unconsititutional and discredited quasi-election [Washington’s old blanket primary].”

    The blanket primary is unconstitutional when it is mandated by the state. Today in Alaska, the Democrats and minor parties have voluntarily established a blanket primary.

    Also, near the end of Washington’s use of the blanket primary, the Libertarians met the state’s definition of a MAJOR party.

    Demo Rep #16: What’s your point?

    In the 10 states which have party runoff primaries: when a runoff is necessary, the TOP TWO candidates from the party’s primary advance to the runoff (or second) primary.

    So what?

18. I still think that not winning even with a majority in the “primary” (i.e., having to undergo double jeopardy) is a key flaw in this top-two stuff.

    If the first election is the “real” election, then a majority winner should be declared the winner. If the second election is the “real” election, then it is unjustified to only allow two candidates in it.

19. Louisiana, of course, does not have a runoff if one candidate gets 50%-plus in the first round.

    In my view, the WA “top two” is a nonpartisan general election with a runoff. To call it a “primary” is a bastardization of that word. But the purpose of the so-called “nonpartisan primary” is to “nominate” the candidates for the “general election.” Thus, since the second round is called the “general election,” it must always be held.

    The WA “top two” is a double election, and that aspect of it is obviously constitutional. (It could be a “top three,” a “top four,” etc., although I don’t know of any place that uses other than a “top two.”)

    Some municipalities only have a runoff if no one gets a majority in the first round, while others ALWAYS have a runoff. Within Michigan, e.g., both setups are used. Detroit does it one way, and Lansing uses the other setup.

    In Cincinnati’s mayor’s race a few years ago, the candidate who got 54% in the first round was defeated in the runoff. In Durham, NC’s last mayor’s race, the incumbent got 88% in the first round, while the second-place finisher got 6%, but they had to have a runoff nonetheless. The same thing, to be sure, is possible in Washington’s “top two” monstrosity. Ridiculous!

20. Louisiana’s “top two” is an extension of the old one-party system, in which elections were decided in the Democratic primary, with a Democratic runoff if necessary.

    The first round of LA’s “top two” is often called the “primary” and the second round the “general election.” But when one candidate gets 50%-plus in the first round– SHA-ZAM!— it magically transforms into a general election, and no second round is necessary.

21. In ‘Williams v. Rhodes’, the Supreme Court specifically rejected the argument that under Article II, Section I, Ohio could appoint their electors in any which way that the legislature directed. While the Supreme Court agreed that Ohio was within its prerogative to choose a popular election to determine which electors were appointed, that it must conduct those elections in accordance with other provisions of the Constitution – in this case with the equal protection clause of the 14th Amendment.

    IOW, ‘Williams v. Rhodes’ is as applicable to an odd-year gubernatorial election in Kentucky, Louisiana, Mississippi, or Virginia; as it is to a congressional or presidential election in even years.

    So for the Supreme Court to overturn the Washington Top 2 primary for congressional elections only, they would in essence have to find that the Top 2 primary used in Nebraska for legislative elections violated the equal protection clause (because it requires more than a modicum of support to advance to the general election), but that was OK because it was not for Congress – and at the same time Washington’s Top 2 primary was unconstitutional because it was for Congress.

    It is simply not going to happen.

22. The proposed lawsuit against Washington state’s “top-two” system in Congressional elections, as I envison it, would include evidence that the congressional election is to some extent a national election. The evidence, in a well-done case, would show that national political parties run national congressional campaigns. Remember the Republican Party’s 1994 Contract with America, which called on voters all over the U.S. to vote Republican for US House, and promised that if the Republicans won Congress, they would enact 10 particular ideas?

    A minor party with a national congressional campaign would be crippled by having one state exclude it entirely from that congressional campaign, during the campaign season (September thru early November). That criticism would not be relevant to any possible lawsuit in Nebraska against that state’s method of election state legislators.

23. Re #17. Nonetheless ‘Munro’ was decided on the basis of the a state mandated blanket primary, with the understanding that the Socialist Worker Party candidate could draw his 1% support from voters of all parties.

    If Alaska had a 1% requirement, the smaller parties might argue that their participation in the blanket primary is coerced, since they would have no hope of getting that many people to vote in a closed “primary”.

24. Re #18. Nebraska has used a Top 2 primary for its legislative elections for decades.

    Looking at the last election, there were cases where a candidate received a majority of the vote in the primary was defeated in the general election. That simply means the electorate reconsidered their choice.

25. Re: #19. The purpose of the primary in Washington (and Nebraska legislative elections) is to winnow the field.

    http://www.secstate.wa.gov/office/audio/April11_PSA_Audio.mp3

26. Jim R #24 says: “The purpose of the [so-called] primary in Washington (and Nebraska legislative elections) is to winnow the field.”

    The “top two” indeed winnows the field, so that voters have only two choices in the final, deciding election. And it almost always winnows out small-party and independent candidates in the first round.

    You could say that party primaries also winnow the field, in that only one candidate per party advances to the general election. But since, in a partisan system, there’s no limit on the number of independents who can appear on the general ballot, the voters have a potentially unlimited choice, instead of merely two options.

    In Party Politics in America, Professor Frank Sorauf says, “As the nominating system that must accompany the nonpartisan election, the nonpartisan primary puts all candidates for the office on one ballot… . The two candidates receiving the highest number of votes at the primary become the candidates for the nonpartisan general election.”

    Other than Louisiana– and now Washington– Nebraska is the only state that uses nonpartisan (or “top two”) elections for its legislature.

    You’re obviously enthralled with the “top two” monstrosity, Jim R. Again I ask: have you contacted any Texas legislators about getting that wonderful system enacted in the Lone Star state? And since you like Nebraska’s setup so well, you should also ask your legislators to make Texas the second state with a unicameral legislature.

27. Part of Williams v. Rhodes 1968

    Ohio makes a variety of other arguments to support its very restrictive election laws. It points out, for example, that if three or more parties are on the ballot, it is possible that no one party would obtain 50% of the vote, and the runner-up might have been preferred to the plurality winner by a majority of the voters. Concededly, the State does have an interest in attempting to see that the election winner be the choice of a majority of its voters.
    —-
    Gee — the sovereign People of the sovereign State of Washington have put such a majority winner interest [aka a DEMOCRACY interest] into a WA State election law.
    —
    Again — nominations for PUBLIC office is PUBLIC business by PUBLIC ELECTORS.

    Party hack SUBGROUPS of all Electors are NOT some sort of independent force from outer space having the power to put their party hack choices directly or indirectly on the OFFICIAL general election ballots.

    Get over it. Top 2 primaries are coming.

    Longer term remedy –

    NO primaries, caucuses and conventions are needed.

    Equal nominating petitions

    P.R. for legislative bodies

    Approval Voting for executive / judicial offices

    Pending advanced math education.

    Political *science* moves on — regardless of party hack Stone Age thinking.

28. Re” #22, ‘Anderson v Celebrezze’ was decided by a 5-4 majority, and there is a much better case that the presidential election is a national election than 435 independent elections which are contested not only within separate States but within single member districts. And to reach their conclusion on Ohio’s early filing deadline, the Supreme Court could as have easily ignored the impact on New Jersey voters, and concentrated on the fact that the filing deadline was months before the Ohio presidential primaries.

    Justice Stevens authored the ‘Anderson’ opinion, but in his ‘Tashjian’ dissent he recognized that it was solely the State’s authority to regulate voter qualifications for legislative elections, and thereby for congressional and senatorial elections. He correctly pointed out that Hugo Black was a 1:8 minority in his opinion in ‘Oregon v. Mitchell’ with regard to the 18 YO vote, where he first confused manner regulation with voter qualification, and then leapt to a conclusion that presidential elections were national elections and therefore subject to congressional manner regulation.

    While some parties may wish to run national campaigns, it is not obligatory, and could be harmful to some regionally-based parties (eg Republicans in 1854). And certainly no independent candidate is going to run as part of a national campaign.

    When the ‘Contract With America’ was poll-tested, it was found that if it was identified as a Republican platform that it was ineffective. So instead it was presented as a committment of the individual candidates to reform Congress.

    If a State were to attempt to nationalize its congressional elections (eg. if Idaho with two representatives required a party to gain 1% of the vote in 10% of the 435 congressional districts, or equivalent petition signatures) it would be rejected.

    When Congress first passed a uniform congressional election date in 1872, the rationale given was that it would curb people moving across State borders to vote in more than one congressional election. If the point of a uniform date is to maintain the local integrity of congressional elections (so voters can not move between Portland and Vancouver so as to vote in both Oregon and Washington), then it doesn’t make sense that the States are now _required_ to _facilitate_ elections campaigns that wish to have Oregonians influence Washington elections and vice versa.

    If it is unconstitutional for Washington to implement Top 2 elections for Congressional elections, even thought Louisiana had something quite similar for 20 years, then it would also be unconstitutional for Congress to require States to use Top 2 elections. And further if the reasoning is that it somehow infringes on the the right of parties to run national campaigns, Congress would also be prevented from changing the date of congressional elections, or letting States set their own date.

29. Re: #26

    The Top 2 primary winnows the field so that the final choice is between the two candidates who garnered the most support in the primary. The winnowing and the final choice are made by the same electorate.

    There is no limit to the number of independent nor partisan candidates that may run in the primary of a Top 2 election. All voters may choose from among all candidates without regard to their own partisan leanings, their willingness to have a public record of their political faith, and whether or not they are willing to be disingenuous about their political beliefs in order to be permitted to vote.

    Texas already uses an all-comers election with a runoff for special elections.

30. Jim R #29: Voters may indeed choose among all the candidates in the preliminary round of the “top two.” But the price they pay is that they never have more than two choices in the final, deciding election. And when those two candidates are from the same party, the other parties’ faithful voters are effectively disenfranchised, as are the supporters of independent candidates.

    Furthermore, in the “top two,” fringe candidates sometimes slip past mainstream candidates into the second round. This happened in Louisiana’s 1991 and 1995 gubernatorial elections, with David Duke and Cleo Fields, respectively. It’s very unlikely that Duke or Fields could have won a party primary, and both lost the runoff in a landslide.

    The incumbent governor finished third in 1991, while now-U. S. Sen. Mary Landrieu finished third in 1995. Notably, in the 1991 governor’s race, the national Republicans and the state GOP endorsed different candidates, neither of whom made the runoff.

    “Texas already uses an all-comers election with a runoff for special elections.”

    So does Mississippi, and that’s a good idea, since the vacancy needs to be filled as soon as possible. The Mississippi legislature, however, passed a Louisiana-style “top two” five different times between 1966 and 1979 (for regular elections), and its implementation was– thank God!– blocked each time.

    Since you still haven’t answered my question, Jim R, I assume that you haven’t bothered to contact any Texas legislators about enacting the wondrous “top two” in the Lone Star state.

31. In 1990, David Duke received 44% of the vote in the senate primary against 3-term senator J. Bennett Johnston, who received 54% of the vote. There were two other Democrats who split 2.5% of the vote.

    Edwin Edwards had first been elected governor in 1971 under the old style Democrat primary and runoff followed by a general election. He defeated Johnston in the primary, and Republican David Treen in the general (Treen was nominated in the only Republican gubernatorial primary in Louisiana history). In Edward’s first term he advocated the writing of a new constitution and a new method of election that dispensed with the party primaries. He also appointed his wife Elaine Edwards to the US Senate after the death of Allen Ellender. Johnston was first elected to that senate seat in 1972.

    Edwards was easily re-elected in 1975, but was barred by law from a 3rd consecutive term in 1979, and was succeeded by David Treen, the first Republican governor since Reconstruction.

    In 1983, Edwards again ran for governor and easily defeated Treen in the primary by a 62:36 to win his 3rd term without a runoff.

    In 1987, Edwards faced then-Democratic congressmen Buddy Roemer and Billy Tauzin, Republican congressman Bob Livingston, and several other Democrats. In a debate, the candidates were asked whether they would endorse Edwards if they were eliminated in the primary, and Roemer answered that they had to “slay the dragon”. Roemer went on to lead the primary with 33% of the vote, followed by Edwards 28%, Livingston 18%, Tauzin 10%. and Brown 9%. Edwards conceded the race, and no runoff was held, meaning that Roemer was elected with 33% of the vote. Given that the only Republican received 18% of the vote, we have to presume that Roemer advanced with significant Republican support.

    Had a conventional partisan primary been held, Edwards and Livingston might well have been nominated and Edwards elected to his 4th term in 1987.

    That brings us up to 1991. To figure out what would have happened in a partisan primary, we have to decide whether Roemer, who ran as a Republican this time, would have contested the Democratic or Republican primary, and whether he would have indeed defeated either Edwards or Duke in a party primary. Roemer finished 3rd in 53 of 64 parishes.

    Roemer’s best performances were in the larger counties, and he might have been elected if Louisiana was made up of New Orleans and suburbs, Baton Rouge, Lafayette, Lake Charles, Shreveport, and Monroe (and perhaps even if we included Alexandria and Houma). But if Louisiana had continued with its partisan primaries from the 1970s, there might have been a genteel Republican primary contested in these areas, with the winner getting thumped in the general election. Roemer, Tauzin, Alexander, etc. would still be Democrats. Bobby Jindal would not be governor.

    In 1995, Mary Landrieu finished 3rd, and Buddy Roemer finished 4th. Who knows for sure whether Fields would have been able to win a Democratic primary against Landrieu. He did basically get a draw in New Orleans.

    Another factor to consider in Louisiana is its odd-year elections for State offices means that congressmen can run for governor without giving up their House seats. In addition, the distinct cultural difference between northern and southern Louisiana, and their somewhat balance makes it easier for a candidate to qualify for the Top 2 based on regional strength.

32. Re: #30 The premise behind party primaries is that only members may participate in the selection of candidates, that they will then support in the general election. Remember that the reason the Mississippi Democrats filed suit was because they couldn’t enforce the law that says voters in the primary intend to support the nominees. They wrote the AG about it and he told them that the USDOJ would probably be after them. There suit claimed they were concerned about “independent raiders”

    So you have two clubs. Both want to exclude even people who consider themselves neutral or independent. The independent believe they are making a choice, but it only after the two clubs have eliminated other alternatives. They might look at the candidates before the primary and find two that are tolerable, but the parties nominate someone else and they end up “choosing” between their 4th and 5th choices.

    Of course in many areas they don’t even get a real choice at the general election.

33. David Duke did as well as he did in 1990 and ’91 because there was a lot of economic discontent and anti-incumbent sentiment. Embarrassed by the Duke candidacy in ’90, the Republicans wanted to avoid a runoff at all costs. The GOP Senate candidate made little headway and dropped out on the eve of the election; the GOP leadership wound up backing the Democratic incumbent, Johnston.

    Edwin Edwards beat David Treen in the March ’72 general election for governor. I don’t recall Treen having GOP primary opposition, but if he did, it was weak.

    Gov. Edwards got the idea for the “top two” (popularly called the “open primary”) from Mississippi, whose legislature had passed it in 1966 and 1970– and would pass it again in 1975, 1976, and 1979. Louisiana began using the “top two” for state and local elections in ’75 and for congressional elections in ’78.

    Edwards had lost his popularity by ’87. He had been tried a time or two for bribery, and LA had been hurt by the recession in the oil industry. Roemer did get GOP votes in ’87, but in that election system, what difference does it make? All the candidates might just as well be independents.

    Given Edwards’s unpopularity in ’87, he could not have won 50%-plus in a party primary, if there had been party primaries. He refused a runoff with Buddy Roemer because he knew Roemer would pulverize him.

    Jim Brown, who also ran in ’87, is the father of CNN’s Campbell Brown. He later served as insurance commissioner and also went to prison.

    Buddy Roemer was a lousy, failed governor. He switched to the GOP in March ’91 after President Bush I and the national Republicans promised him support. Edwards benefited in ’91 from the weakness of the competition. A lot of Louisianans held their noses and voted for Edwards in his runoff race with Duke.

    David Duke could NEVER have gotten 50%-plus in a statewide GOP primary.

    I don’t see how you reached the conclusion that Bobby Jindal might not have become governor, since he almost beat Kathleen Blanco in 2003. The big majority of Louisianans care little about party labels, especially at the state and local levels.

    Mike Foster, age 65 and a lifelong Democrat, switched to the GOP in the fall of ’95 and was elected governor in November. For a time, it appeared that 2 Republicans– Foster and ex-Gov. Roemer– would meet in the runoff, but Roemer faded near the end and finished fourth.

    Cleo Fields could not have gotten 50%-plus in a statewide Democratic primary in 1995.

    “The premise behind party primaries is that only members may participate in the selection of candidates, that they will then support in the general election.”

    In the states which have party primaries, and which do not mandate open primaries, each party decides which voters may participate in its primaries. (The exception is that the state may prohibit parties from inviting members of opposing parties into their primaries.) When a party allows non-members into its primary, it HOPES that they will back the party’s nominees in the general election.

    The Mississippi Democrats are challenging the state-mandated open primary because they want to be able to block Republicans from voting in Dem primaries. The Democrats have made it clear on several occasions that, if their lawsuit succeeds, they will invite independents into Dem primaries. The Republicans, in contrast, will keep GOP primaries open to ALL voters.

    In Calif. Dem v. Jones, Scalia had a suggestion for voters in areas in which elections are decided in one party’s primary: JOIN THE PARTY. Why should someone who steadfastly refuses to join a party be allowed to help nominate that party’s candidates– unless the party invites them to do so?

    Remember that, in all those years before we had party primaries, grassroots voters could only vote in general elections.

    The bottom line: if the “top two” is such a fantastic idea, why is Washington only the second state to use it for all of its state and congressional elections? And remember that Louisiana has restored party primaries for congressional elections.

    Why did the voters of California reject the “top two” in 1915 and again in 2004? If the “top two” is so great an idea, why did the voters of North Dakota defeat it in 1925?

34. Ben Bagert was the Republican-backed candidate for US senator in 1990, until he dropped out. David Duke, of course, was also a registered Republican, but he was repudiated by President Bush I and the GOP leadership.

35. #33 Political *SCIENCE* moves on along with other Democracy advances — regardless of Stone Age keep- the- old- rotted- stuff thinking.

    How come it took until 1888-1890 to have OFFICIAL primaries (less control for party hack tyrants) — with related OFFICIAL general election ballots ???

    How come it took until 1913 and the 17th Amdt to have ELECTED U.S.A. Senators ??? i.e. NO control for the CORRUPT party hacks in State legislatures to appoint U.S.A. Senators.

    Etc. — going back to Adam and Eve or the folks on Noah’s Ark.

36. 28% of an all-comers vote (in 1987) is likely enough to get you pretty easy nomination in a Democrat-only primary. And a Democrat-only primary might have discouraged Roemer, Tauzin, etc. from even running. And in a Democrat-only primary, saying that you won’t endorse the party nominee in advance is more of a liability. And if there had been party primaries in 1991, it is much less likely that Roemer would have switched parties.

    It is simply dishonest to say that Edwards was a product of the open primary. If anything, the 1987 and 1991 elections show that the system produces less incumbent protection than a system of partisan primaries.

    I wrote that the _premise_ behind party primaries is that the members of the party select the nominee. If a party decides to let unaffiliated members participate it is not out of the goodness of the party’s heart, or a recognition of any intrinsic right of citizens who choose not to make a public declaration of political obeisance or fealty. Rather it is a politically calculated move to further the objectives of the private group that seeks control of the government.

    The Mississippi Democratic Party in their lawsuit complained that “independent raiders” could interfere with their private affairs. Whether they have declarations elsewhere to the contrary is not relevant, except as to the question of their integrity.

    Regarding Scalia’s suggestion in ‘Jones’, this suggests that party membership is nothing more than a flag of convenience. If this is true, why should the election of State officers be organized on the basis of such groups? Why not simply let voters vote for whoever they want?

    I don’t know why Nebraska hasn’t switched to Top 2 elections for its other offices. They must be happy with the system for the legislature, since they have kept it in place since 1934. In other States, it may be a case of the foxes guarding the chicken coop.

    Re: North Dakota. Are you sure the referendum was in 1925 and not 1921? And if it was in 1921, perhaps there was a connection to the recall of the governor (last governor to be recalled before Gray Davis in California) and the rest of the Non-Partisan League’s administration. Do you have more details?

    Re: California. It had little experience with the blanket primary before it was declared unconstitutional and had continued its party registration. It is a highly populous State subject to mass indoctrination through TV. The legislature had also put another measure (Prop 60) on the ballot that provided the “right” of political parties that participated in the primary to participate in the general election. The voter pamphlet claimed that Californians had fought for the right to vote in direct primaries a century ago, and spend most of its time attacking Prop 62 (Top 2). It also pointed out while California had elected one governor who later had to be recalled and was replaced by a governor who had an Austrian (wink wink) accent; Loosianna had elected a wooman and an Asiatic governor with its Top 2 system. (or maybe it was “In Louisiana, voters’ choice in a recent runoff election was a former Grand Wizard of the Ku Klux Klan and a governor who later went to prison.”)

    On Prop 62, the opponents claimed that Washington had recently rejected the Top 2 primary, when in fact the legislature had passed the Top 2 primary only to have Gary Locke veto it. The initiated version that was on the Washington ballot at the same election would of course pass with over 60% support.

    It claimed that under a Top 2 election “6 million votes would not have been counted” in 2002, presumably because they would have been cast for Republicans or Democrats who would not have advanced to the general election ballot. Of course voters could have voted for these candidates in the primary, and voted for more popular candidates in the general election.

    It also claimed that “[u]nder Proposition 62, California’s diversified Legislature with many African Americans, Latinos, Asians, and female legislators will suffer and politics will return to being dominated by rich white males”. Can you explain the mechanism by which that would happen?

    The truth of the matter is that the legislature confused the voters in 2004. If Prop 60 had not been stuck on the ballot, Prop 62 might well have passed.

37. appreciate the info guys, thanks

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