The 5th circuit will hear oral arguments in Mississippi Democratic Party v Barbour on March 6. This is the case in which the Democratic Party seeks to prevent non-members from voting in its primaries.
The party mostly won the case in U.S. District Court last year, except the U.S. District Court surprised everyone and said the Democrats can have their closed primary if they wish, but that the judge would also require that primary voters must show photo I.D. to vote at the polls (something that wasn’t even an issue in this lawsuit). The Democrats will be defending the part of that decision concerning closed primaries, but trying to overcome the part about photo I.D.
i hate to side with the democrats but party primaries should be decided by party members.of course in mississippi its common for candidates to run in diffrent elections with diffrent parties.
Last June, Judge Allen Pepper ordered “photo voter ID.” In July, he changed it to simply “voter ID,” leaving out the “photo” part.
Pepper also ordered party registration, which is also being appealed.
The Democrats’ purpose in filing the suit was to be able to block Republicans from Democratic primaries. The Democrats say that they will invite independents to vote in their primaries, however.
Mississippi’s Republicans say that they will keep their primaries open to ALL voters.
What is a “party member” if there are no membership records (ie party registration)?
Someone who signs a piece of paper at the polls saying he or she is a Democrat.
To expand on Richard’s comment: a “party member” is whoever the party says it is. In 13 of the 22 open primary states, each primary voter’s choice of party is publicly recorded.
A party could poll all the registered voters in a jurisdiction to determine their party preferences. The party could then use that data to draw up a list of voters that it approved to participate in its primaries. However, the most practical way to identify voters is party registration.
As Justice Scalia said in California Democratic Party v. Jones, political parties have “the freedom to identify the people who constitute the association, and to limit the association to those people only.”
BTW: If there is no party registration, a party can require voters to sign some type of statement at the polls in order to vote in the party’s primary. State-mandated open primaries, of course, force the parties to allow ANY voter to vote in their primaries– which is why the Mississippi and Virginia suits have been filed against those open primary laws.
See the Jan. 31 and Jan. 14 posts at Grassroots Idaho GOP.
What is a “political party” then? Or perhaps who constitutes a “political party”? How does a party determine its standards of party membership? Are the members permitted to participate in the process that sets these standards?
Isn’t a party primary simply a form of mass meeting of the members of the party to choose its nominees? How do the voters who show up at the primary election determine which other voters that also show up (some don’t even show up, but mail in their votes). Does Scalia’s statement really imply a standard of identification more severe than you can’t vote in two party’s primaries (or parts thereof)?
In California Democratic Party v. Jones, the issue was essentially that people who showed up to participate in the Peace & Freedom Party primary could sneak off during the voting for the street sweeper nominee, and vote for the Libertarian nominee for dogcatcher. Do you really think that Scalia is suggesting an identification more severe than not letting voters vote in two party’s primaries (or parts thereof)?
The parties’ governing bodies are called central committees in some states and executive committees in others. In some states, the members are elected at the state convention, and I believe some states elect them at the party primary.
The Mississippi Democratic Executive Committee authorized the suit against our open primary law. In 2006, the Hawaii Democratic Convention passed a resolution calling for a lawsuit against Hawaii’s open primary law. Last month, the party’s central committee rescinded the action of the ’06 convention.
The U. S. Supreme Court’s reasoning in California Democratic Party v. Jones puts the state-mandated open primary in jeopardy. In his dissent, Justice Stevens said that the Jones ruling “casts serious constitutional doubt” on the open primary.
A party, of course, can have an open primary if it wants one. The exception to this is that the state has the power to prohibit parties from inviting members of opposing parties to vote in their primaries. (Clingman v. Beaver)
STEVE WHAT ARE WE GOING TO DO ABOUT MCCAIN I SAY WE ARE SCREWED.
Barring a miracle, the Creature from Cactus Country will be the GOP nominee.
Personally, I’ll be looking for a third party or independent candidate. My state always goes Republican in presidential elections– even for Bob Dole.
Tony Blankley had a great column today. If not for the 2006 “macaca” incident in Virginia, we likely wouldn’t be facing this catastrophe now.
In an open primary state, why should the authority to determine who participates in a primary be vested in a party’s “governing body”? If the basis for continued ballot access is support by voters at the general election, of candidates nominated in an open primary, why can the “governing body” change that? Even if the governing body is chosen in the primary, isn’t it analogous to the board of directors of a company deciding that certain persons are no longer shareholders?
In Califormia Democratic Party v. Jones, Justice Stevens was part of a 2-person minority that would have upheld California’s blanket primary. Is he a reliable source of how the court would rule in an open primary case, especially since those who would likely have to support the opinion dissented in Tashjian.
When the state mandates open primaries, a party that wants to block non-members from voting in its primaries cannot do so. The question in the Virginia and Mississippi lawsuits is whether the state or the party decides who votes in the primary.
The open primary has been compared to letting Pepsi stockholders help choose Coca-Cola’s board of directors.
In Jones, Justice Stevens noted the large number of open primary states and warned that the Jones ruling would “cast serious constitutional doubt” on those states’ primary systems.
Justice Stevens dissented in Tashjian v. Republican Party of Connecticut (1986), as did Scalia. This was a 5-4 decision, and it gave parties the right to invite independents into their primaries. Scalia, who wrote the majority opinion in Jones, and Stevens are the only 2 justices who voted on Tashjian who are still on the court.
Scalia also wrote the majority opinion in the recent Lopez Torres ruling, which is ominous for the state-mandated open primary.
I don’t think that Stevens in his /Jones/ dissent was suggesting that if an open primary case came up, that he would feel compelled to extend the logic of the majority and switch sides. At best, he was suggesting that he felt that the court was being inconsistent in the amount of control given to the parties (he also mentioned the requirement that some parties hold primaries, while others are required to use conventions).
In fact, Stevens says that the willingness of the majority to “cast serious constitutional doubt” is “an extraordinary intrusion into the complex and changing election laws of the States.”
Presumably Stevens and Ginsburg would uphold an open primary, given that in /Jones/ they supported a more extreme version where voters could switch parties for each office.
And the minority in /Tashjian/ is now represented on a philosophical basis by Roberts, Thomas, Scalia, and Alito. Scalia was concerned in particular that the rank and file members who registered as Republicans might not agree with the state convention as to letting non-members participate in _their_ primary.
Currently anyone can show up and vote on which Demo-Cola products will be exhibited at the state fair. Even if they say that they prefer Demo-Cola products, they can still vote for GOP-POP at the state fair, since the judging is done by secret ballot. It’s Demo-Cola’s board of directors who are trying to restrict participation – but they don’t necessarily represent the body of people who have selected which products are exhibited. And there may even be product managers who aren’t so keen on limitating participation such as Taylor’s Blue Dog.
Steven’s dissent in /Tashjian/ was narrower, tied to the fact that the Republicans wanted to permit independents to vote in the primary for congressional races, but not in the primary for legislative races, so I’m basing his vote in an open primary case on his dissent in /Jones/.
I fully expect Stevens and Ginsburg to be in favor of the state-mandated open primary, since they were for the state-mandated blanket primary.
In his dissent in Jones, Stevens referred to candidates in Louisiana’s “top two” as “previously-nominated.” They are “nominated” either by paying a fee to the government OR by petition– not by convention, caucus, or primary.
That “intrusion” that Stevens notes has been occurring for about 35 years now, as the courts have been giving greater autonomny to political parties.
If rank and file party members want the state convention to take a certain action, they should send delegates to the convention who agree with them.
I’m not sure I follow your next to last paragraph. You obviously are referring to the open primary states, since “anyone” cannot vote in a closed primary. If the rank and file don’t like what the “board of directors” are doing, they can replace them. As I already noted, the Hawaii Democratic Central Committee last month rescinded the action of the 2006 state convention.
In most open primary states, the open primary law is part of the residue of the one-party system. Now that two parties have competitive primaries, the problem has arisen of one party’s members invading the other party’s nominating process.
I believe that the state-mandated open primary will ultimately be declared unconstitutional. Would you like to make a little wager on that?
If a State has vested the authority to nominate in bodies of voters through a primary process, on what basis should some other body have to usurp their right to vote?
Mississippi is not a good example of an open primary, given that its standard for participation in the primary is more severe than that of most states. If the state law regarding participation in the primary (intent to support the candidates nominated by the primary) was enforcible in any meaningful sense, it would likely be unconstitutional because it compells speech and violates the right to freely exercise one’s vote.
Most States with truly open primaries are northern states, where voters can freely choose a primary to participate in, sometimes in secret, or without any public record of their selection. To characterize participation in such a party primary as “party membership” is a stretch.
The one-party States of the South remain nominally closed primary states given that they require active association (even if that association is relatively superficial) with a party in order to participate in the nomination process, and simultaneously forbid contemporaneous association with other parties.
The Coca-Cola analogies are off target. The nominees are not equivalent to the board of directors. If there is an equivalent of a board of directors, it is the state executive committee along with any state convention. But the nominees are a policy decision made by the primary voters, who might regarded as equivalent to shareholders.
But in many cases the shareholders are not required to buy shares, but simply show up at the place where the shareholders have a mass meeting.
It might be that ultimately state-mandated party primaries are declared unconstitutional, and that all nominations be made by petition.
Party affiliation is clouding most issues these days. Consider, you are voting for an individual, not a party. In many local elections, in Mississippi, the majority of candidates run as Democrats because that is where the votes are in the primary elections. They are not party candidates adopting the issues of our national parties. They are running and I am voting in Democratic primaries because our local candidates are decided in the Democratic primaries. This is just the way it is in local elections. When we get to the fall election cycle, many votes that were cast for Democrats in the primaries may change to Republican votes. The real solution to the problem is candidate registration and organization. This is just the way it is. Work on proper candidate registration and leave the individual voter to exercise his free voting rights. I would bet that many local Democratic candidates do not support the platforms of the national Democratic party.
I agree with the 5th circuit ruling today. The reason this lawsuit came to be was uncalled for, thank goodness Ike Brown was ousted from his power in the Democratic Party of Mississippi