This Texas story says that an IVR poll has found that 17% of the voters who say they plan to vote for Hillary Clinton in the Democratic primary on March 4, also say they expect to vote for the Republican presidential nominee in November. The same poll finds 22% of the voters who say they will vote for Barack Obama on March 4 expect to vote for the Republican nominee in November.
This is evidence that “raiding” does occur. “Raiding” is the intrusion of voters into party primaries who are not, in their hearts, loyal to the party holding that primary. For years, political scientists have fought over whether “raiding” really occurs in open primaries.
The February 25 New York Times has this op-ed by Geraldine Ferraro, supporting the idea that superdelegates ought to settle the identity of the Democratic presidential nominee. Ferraro’s justification is that Democratic presidential primaries get raided anyway, and therefore the presidential primaries should not be the determining factor in whom the party nominates.
How many folks LIE to the know-it-all pollsters to have fun and games ???
Remedy – Approval Voting – vote for 1 or more in general elections.
END MORON caucuses, primaries and conventions.
I admit it, I raided the vote in my home state. While I certainly planned on going Green or Nader in November I voted for Hillary.
Now certainly caucuses, primaries, conventions have a purpose, but it should be decided by party members not voters at large. We have separation of church and state why not party and state. The real “democracy” should happen in the general through a multi party irv based system.
Raiding is a legitimate way of expressing a second choice. If an independent favors McCain but thinks he mays lose, and favors Obama over Clinton, then it is fair for him to vote for Obama in the Democratic Primay. There is no other way for him to vote for Obama rather than Clinton.
How about if the Dems and Reps quit their belly-aching about possible ‘raiding’ and simply only allow bonafide, dues paying, oathtaking, meeting attending members to participate in their nominee process. Oh…and they pay for their primary/caucus elections themselves out of party dues and not milk the independents and third party tax payers while not allowing fair ballot access to those indies/3rd parties. Just a thought.
Since the Republican nomination is sewed up, those voters are looking for value with their ballot. They’re paying for the primary anyway, so why not cast a vote in a meaningful way?
This will likely be the last presidential election year in which we’ll see state-mandated open primaries. There is a mid-March deadline for appeals to the U. S. Supreme Court of Miller v. Cunningham, the Virginia Republicans’ suit against that state’s open primary law.
In addition, the 5th U. S. Circuit Court of Appeals in New Orleans will hear oral argument on March 6 in the similar case Mississippi Democratic Party v. Barbour.
Brad: The parties cannot require their members to pay dues, etc. 29 states have party registration, and a few states even allow same-day registration at the polls. The definition of “party member” is quite nebulous in many places anyway.
In 1995, the 8th Circuit said that, when a state requires parties to nominate by primary, the state must pay the costs of those primaries. (Republican Party v. Faulkner County)
The Chronicle story has one glaring error: Run-offs after primaries in Texas are off limits to voters who voted in one or the other opposing primary, but only if they get caught. In many instances, they don’t. Affilation isn’t checked very strictly at all in those events and never has been in modern times. But, the more likely and damaging activity is from those voters who skip their preferred party’s primary so they can go monkey-wrench the run-off event on the other side of the fence. There is NOTHING in statute to prevent this – those individuals are still “unaffiliated” voters in such a case and may do as they please; never mind their malignant intentions. This stuff happens, and it is devastating. There would likely be a Senator Morales instead of a Senator Cornyn now, had not so many Republicans crossed over to vote for Ron Kirk in the Kirk-Morales runoff in Texas a few years back.
IRV and ‘Approval Voting’ are both bullshit at the primary level. Institute that wide-open model for any initial round voting, and it will get formulated by the 2 major-parties’ elected officials in such a way as to mimic what’s going on in Washington State if adopted at all. That setup has 3rd poarties effectively locked out of the general election there. Forget it.
What is desperately needed in Texas is to have register by party, and the closed primaries that it would necessarily put into place.
There was a good register-by-party bill in the TX lege in 2007 (HB3118 by Leo Berman of Tyler, [R], Chair of the House Elections Committee), but it was killed by the Assn. of Republican County Chairmen and a bunch of careless Libertarians and Greens who didn’t know a good thing when they saw it coming.
“What is desperately needed in Texas is to have register by party, and the closed primaries that it would necessarily put into place.”
The purpose of party registration is to identify voters. All of the closed primary states do indeed have party registration, but it’s still possible to have an open primary with party registration.
Utah, e.g., has party registration, but the Democrats there nevertheless have open primaries.
How many of those Republicans who voted in the Democratic Senate runoff had voted in the Republican (first) primary?
Steve;
Good question. I’m afraid that the answer for that specific instance is unknowable. Officialdom doesn’t keep track of such things. There may have been situations where certain voters were turned away because they were I.D.’ed as being clearly affiliated Republicans. Others slipped right on by. You’d have to have an army of people present to quantify such things, and 254 Counties to cover at that.
Gatekeeping is done at the precinct polling place, one voter at a time, and presentation of one’s voter registration card isn’t strictly mandated anymore. When voting cards are issued at the front-end of the election cycle, everyone is just a voter – unaffiliated. If you vote in a party’s primary, the party I.D. is supposed to be stamped on one’s voting card. That isn’t always done. A picture I.D. may be substituted (Thanks, Democrats) at the primary or run-off poll and then presumably verified against a roster. (That doesn’t always happen either; I’ve seen it) and if someone ISN’T on the roster when the poll workers do check, and the voter demands a ballot with just a picture I.D. provided, the poll workers always cave (I’ve seen that too, and heard of plenty of other such episodes). To challenge a voter demanding a ballot in such an instance is to presume that you can prove a negative.
Yes; I have been a polling-place worker. In fact, before my first gig, the polling-place supervisor over all of us told us to always err on the side of caution and fork over the ballots when put on the spot. Don’t forget; Texas is still under DOJ supervision for voting rights issues, 40+ years after the Voting Rights Act of ’65.
In clearly suspicious circumstances, a “challenge” ballot is provided to be counted apart from the rest later. This is usually done in the General in situations that have more to do with basic registration matters, or perceived attempts by voters to vote outside one’s designated Precinct; not party I.D.
It’s a Misdemeanor in TX to cross over into the biz of another party once one is committed. But there’s not one lay-person in ten-thousand here who could tell you how that law is enforced. The enforcement provisions just aren’t spelled out. I’ve asked election officials about this. By and large, they say it’s just more trouble than it’s worth to try. If you catch a violator (good luck!), I imagine you’d have to file suit in a State District or J.P. Court against the violator to get the job done. Then you’d have to prove your complaint. If you fail, you’re exposed to suit. Who needs that aggravation?
That may not be a satisfactory answer, but the fact of the matter is that we have a lot of 19th-Century tradition showing through in our election code. Code has been amended to death and beaten up in court (then modified) severely over the years, more than it has been actually updated. As you can see, the possibilities for gaming it are pretty wide-open. That’s why we need RBP. The issue of not allowing “no-party”, or independents, into primaries supposedly helped kill HB3118. If they get something worked out in the next Legislative session on that, and we then get RBP, it will be a small price to pay.
“What is desperately needed in Texas is to have register by party, and the closed primaries that it would necessarily put into place.”
I’d like to have registration by party in every state. It’s silly to pretend that everyone in my own state is a member of the Non-Partisan Party.
this makes the case for closed primaries
In the linked article I am amused at the idiocy of Texas Republicans voting ‘against’ Clinton because that may be their only chance to vote against her. By all estimates and polls presently Obama will be a much, much stronger candidate versus McCain and most likely will win rather than a Clinton Dem nomination. Shouldn’t they be be voting strategically for the general election, i.e. FOR Clinton?
Charles: I believe that the days of the state-mandated open primary are numbered. It now appears that the Virginia open primary suit will be the one that the U. S. Supreme Court hears, and the high court will likely rule late this year or sometime next year.
If the state-mandated open primary is declared unconstitutional, a suit against it in any of the other open primary states would be an easy case. Such a suit would, of course, need to be brought by at least one of the political parties in the open primary state.
With the elimination of the open primary law, each party will be able to determine who votes in its primaries. (The exception here is that the state has the power to prohibit the parties from inviting members of opposing parties to vote in their primaries.) The Mississippi Republican Party says that, regardless of the outcome of the Mississippi Democrats’ suit, GOP primaries will remain open to ALL voters.
The Mississippi Democrats say that they will invite independents but block Republicans from Democratic primaries. Thus, independents will continue to have their choice of either party’s primary.
It is shear fantasy that Republican raiders caused Ron Kirk to be nominated in 2002.
While Victor Morales had a narrow 0.1% lead in the primary, both he and Kirk were just short of 1/3 of the vote. The other 1/3 had voted for Ken Bentsen (27%) or two other candidates, who were eliminated.
Kirk won the runoff by 120,000 votes, or 20% of the total vote. If these were Republican raiders, then we would have to believe only 50% of Democrats returned for the runoff, while huge numbers of Republicans were returning.
This would also have to ignore the fact that voting increased for the runoff in Dallas County, which was carried handily by Ron Kirk, the former mayor of Dallas, while it dropped off dramatically in other parts of the state. Quite simply, Kirk supporters were more likely to return for the runoff and Bentsen supporters split favorably for Kirk (eg see Harris County).
And of course it is even wilder fantasy that Victor Morales would have beaten John Cornyn in an election where John Sharp lost by 6%. Cornyn beat Kirk by 14%, which was comparable to the victories by Rick Perry over Tony Sanchez and Greg Abbot over Kirk Watson.
There might be a case for Republican raiders in 1996, where the margin of victory was only 2.4%. But in that case, one would have to explain why Victor Morales was the weaker general election candidate in 1996 but not 2002; why if he would have defeated John Cornyn, he lost to Phill Gramm in an year much more favorable to Democrats; why his margin over John Bryant was less in the runoff than in the primary; and where runoff voting held up better in areas more favorable to him.
HB 3118 would have required closed primaries; it would also have required county registrars to inform all voters that they were now independents, and if they wish to vote in a primary must affiliate 31 days prior to the primary.
I doubt that there was really much serious support for the bill; it was probably meant to tweak Carole Keaton Strayhorn; would probably not have been cleared by the DoJ; and would have been blocked by both parties seeking injunctions to permit them to have semi-open primaries with independents voting.
Steve R: Mississippi does not have an open primary. It has a closed primary, with an affiliation standard that the Democratic Party does not believe is capable of being enforced; but if it were enforceable would probably be unconstitutional since it imposes such a burden on individual conscience and the right to a secret ballot.
So you think you know more about Mississippi’s election process than I do, eh? You’re referring to the 1987 law which says that a citizen voting in a party’s primary can be made to swear that he intends to support that party’s nominees in the general election. The law is obviously unenforceable, since it’s a secret ballot.
I live in Mississippi’s largest county and the home of the state capital. I’ve voted in many party primaries here since ’87 and was not even aware of that law until the Dems filed their suit in 2006.
Mississippi does indeed have open primaries.
No state, no court can require closed primaries. The state can forbid parties from inviting members of opposing parties to vote in their primaries. And in 1986, the US Supreme Court gave parties the right to invite independents to vote in their primaries.
When a party invites independents into its primary, it’s a semi-closed (not semi-open) primary.
The reason Texas has open primaries at all is because of our history as a one-party state- first Democrats, then Republicans.
We still have an abundance of counties with one-party government, where the primary actually carries more weight than the general election.
With Texas’ extremely high bar for alternative parties and independents, eliminating or restricting the primary system would effectively disenfranchise the vast majority of Texans entirely.
That’s true of all the Southern states with open primaries, Kris. At the time that party primaries were enacted (early 1900s), almost all elections in those states were decided in the Democratic primary.
We also have one-party counties in Mississippi. Since we elect our state and county officials at the same time, this situation partially disenfranchises some voters. In my county, the county races are decided in the Democratic primary, and there are some counties where the county races are determined in the Republican primary.
Since the legislature won’t enact nonpartisan county and municipal elections, I’m hoping for a ballot initiative to do so. (Texas doesn’t have the initiative process, does it?)
Mississippi has some ten parties, so it’s easy for minor parties to qualify. However, they rarely run candidates. Our qualifying deadline for independent candidates for offices other than president is ridiculously early– January 11 this year– and I’m hoping for a lawsuit to rectify that.
BTW: Does Texas have party primaries in municipal elections?
Steve R: Judge Pepper in his decision said that Mississippi has a “semi-closed primary” because it restricts participation to members of the party, plus non-members who choose to participate in its primary. But he further characterized it as facially closed, because of the loyalty oath.
Pepper’s primary finding was that “there is no practical way to enforce § 23-15-575 language requiring that ‘No person shall be eligible to participate in any primary election unless he intends to support the nominationsmade in the primary inwhich he participates.'”
He further stated that Mississippi could either keep § 23-15-575 and implement party registration and voter ID so that it was enforceable; or adopt some other form of primary. I see no reason why that form of primary could not be an open primary.
That you were not aware of the loyalty oath simply indicates the difficulty of enforcing it. It seems that the 5th Circuit could solve the problem by simply requiring taking the oath before participating in the primary.
Texas law requires non-partisan elections in cities; except that city charters may provide for partisan elections. Houston has a provision in its charter for parties, as long as they aren’t the same as those for statewide office; but I don’t ever recall someone seeking office on a party label. This may be an obsolete provision.
Elections in Houston are not truly non-partisan, and the mayor and council members are usually associated with parties to some extent. This may have to do with the size of Houston (2.1 million) and that it has suburban areas such that Republican candidates may be competitive.
If an election requires a majority, a runoff must be held. Cities greater than 200,000 are required to have majority elections.
In Houston, this typically results in larger fields of candidates, which may soften the bi-partisan nature of elections. This is especially true in open seats (Houston has term limits after 3 2-year tearms, so there is usually a competitive election for a seat, followed by 2 elections where there is only nominal opposition).
Texas does not have an initiative process. It was part of the Republican platform until the Republicans took control of the legislature. I believe it is now part of the Democrat platform.
There is a pseudo-initiative process by which non-binding resolution-like propositions may be placed on the election ballot, but the qualification level is high enough (5% of vote for governor in previous primary) that I don’t think anyone would actually go to the trouble, given that the resolution is basically an expression of opinion. The state executive committee may also propose ballot questions. These are typically very red meat type propositions.
Houston has an initiative process; however the city council writes the ballot title, and may make competing propositions. There is apparetly an unwritten imperative that the city council provide as many confusing and conflicting alternatives as possible.
There was an analysis done of early voters in the Democratic primary in Dallas County.
Roughly 50% had not voted in a Democratic primary over the past 3 cycles. About 20% had not voted in the general election in recent times. About 2% had voted in the Republican primary over the past 3 cycles.
Jim R: Would it surprise you that there are some ignorant federal judges? Pepper is mistaken in defining Mississippi’s primaries as semi-closed. I’ve defined semi-closed primaries above. A party has to have a means of identifying independents in order to have a semi-closed primary; in every case of a semi-closed primary, there is party registration.
The key thing about Pepper’s ruling was that he declared Mississippi’s open primary law unconstitutional. However, he went further and also ordered voter ID and party registration. His reasoning was that those two items are necessary to enable a party to identify the voters that it wants to allow into its primaries. He’s wrong about that, too.
I believe that Pepper’s ruling on the unconstitutionality of the law will be upheld, but his orders for voter ID and party registration will be reversed, as those items are the legislature’s prerogatives.
So long as there’s a secret ballot, 23-15-575 is unenforceable. That law was an effort by a Democratic-dominated legislature to discourage Republicans from voting in Dem primaries.
If Pepper is upheld on the unconstitutionality of the open primary law, each party will be free to say who votes in its primaries. Mississippi Republicans say they will maintain open primaries; the Dems say they will have semi-closed primaries.
I don’t see the 5th Circuit requiring loyalty oaths any more than it will require party registration. In California Democratic Party v. Jones, the Supreme Court said that political parties have “the freedom to identify the people who constitute the association, and to limit the association to those people only.” But the court left it to the parties as to HOW those people would be identified.
In a nonpartisan election, the parties have no way of officially nominating candidates. The general election– the first round– is not limited to one candidate per party; if there’s a runoff, it may feature 2 candidates from the same party. The party affiliations in such elections are usually well known.
California has nonpartisan county and municipal elections, and Nebraska elects its legislature on a nonpartisan basis. Both states have voter registration by party.
Jim R: When you refer to a “state executive committee,” do you mean the state executive committee of a political party?
Steve R: You can’t have it both ways. Either Pepper is ignorant, and his findings and rulings are likely to be overturned; or he isn’t so ignorant, and he was correct to characterize the Mississippi primary as facially closed (this doesn’t mean that his ruling won’t still be overturned).
Let’s pretend that the loyalty oaths were enforceable. Perhaps Mississippi voters are so constitutionally honest that they would go to the polling place, and decide that they might not be able to support all the nominees, especially since they are supporting someone else in the primary; and turn around and go home as a matter of conscience. Only yellow dog Democrats would vote in the Democrat primary.
It would indeed be a closed primary, because only Democrats would participate in the Democrat primary and Republicans in the Republican primary.
You may be misunderstanding California Democrat Party v. Jones, in a manner similar to Judge Pepper. The SCOTUS meant that a party could designate who could participate in their primaries (as long as they were doing it in a Tashjian manner and not a Klingman manner). Pepper took it as meaning to be able to determine which voters satisfied the criteria of party member – and proposed photo ID’s and party registration as the solution.
But in California Democratic Party v Jones, the issue was someone who had self-identified as Peace & Freedom voter could vote in the Green Party primary for dogcatcher. The decision eventually was applied to Washington’s blanket primary because even though it had no process of public self-identification, because a voter could in effect switch from being a Democrat when voting for a gubernatorial nomination to being a Republican when voting for a senatorial nominee.
The SCOTUS is never going to let a political party impose some qualification for participation in a state-mandated primary such as one based on race, gender, age, etc. since they have already ruled that primaries are part of the public election process (see Texas Jaybird decisions). They aren’t going to permit a membership fee (same as a poll tax). Or some profession of adherence to political values (eg Mississippi Democrat Party requiring a belief that “Jefferson Davis was the greatest president our country ever had”), since it violates a voters 1st amendment rights of the voter. They’re not going to let the parties impose some period of party affiliation before voting in a party primary – and even a state-imposed limit will be suspect.
So essentially, whether you are a “Democrat” or “Republican” is based on whether you go into a building with a rooster or an eagle over the entrance. Party “membership” for participation in primary elections is ultimately very superficial from an external perspective.
The 5th Circuit is likely going look at the voter ID requirements and remand the case back to Pepper. If in another couple of years he comes back with a registration scheme, the appeals court could simply rule that is unnecessarily too intrusive, when some scheme such as that used in Texas would protect the Mississippi Democratic party from forced association with “Republicans”.
Steve R: I know what a non-partisan election is. Though I would describe it as a party where the candidates run without party labels. Just because multiple candidates can run under the same party label, does not make it a non-partisan election.
Texas law provides that state officials, district officials, county and precinct (these aren’t voting precincts) officials are elected in partisan elections – usually with party primaries followed by a general election, though there is also the special election form used for special elections which are like Louisiana uses/used to to use.
Texas law requires other elections (city, school districts, special districts) to have non-partisan elections – the law says that candidates run as independents. It however permits cities in their city charter to provide for partisan elections. The city of Houston, has such language in its city charter – except that it requires that the parties be other than those that nominate candidates for state, district, and county offices. I’ve never known a candidate in Houston to run as the candidate of the Bayou Party, or the Space City Party, etc. And there is certainly no provision for party primaries. The provision may be obsolete. The Houston charter has a lot of junk because it can only be amended in a manner similar to modifying the state Constitution by a vote of the people.
However, in Houston and other large cities, more active members of political parties may get together and support mayoral and city council members. This support may or may not be obvious to the average voter. And candidates do switch between the two sytems.
Ron Kirk, independent mayor of Dallas ran for the Democratic nomination for US Senate.
Chris Bell, independent city council member and failed mayoral candidate in Houston, was elected as a Democratic US representative, and lost a race as the Democratic candidate for governor. When he finished 3rd in the mayoral election, he traded an endorsement of one of the two remaining mayoral candidates in the runoff for support in the Democratic primary for Congress just 4 months later. His opponent in the primary had also been a city councilmen but a rival/critic of the mayor.
Carole Keaton (McClellan/Rylander/Strayhorn) was mayor of Austin – and generally supporter of Democrats, before being elected as a Republican for Railroad Commissioner and Controller. She later ran as an independent for Governor.
Bill White, current mayor of Houston was formerly the chairman of the Democratic Party of Texas.
Yes, I meant the state executive committee of a political party.
The referendums are limited to a particular party’s primary ballot. For example, in 2006 Democrats in 2006 voted 89%-11% to raise the minimum wage, while Republicans voted 94%-6% in favor of outlawing the taking of private property.
They’re essentially pretend referendums, just like modern town hall meetings (outside some small towns in New England) are not really about direct government – but are Q&A sessions and campaign rallies.
There is a process by which party referendums could be initiated by voters – but the number of signatures is so high that it is unlikely to be used (perhaps back in the 1960s, some Democrats might have proposed an anti-war referendum had the provision existed then (it was added to Texas law in 1985).
It was originally implemented as a way to diffusing support for a real initiative process. It was also something that could be implemented by state law. Adding an actual initiative process would require amending the Texas Constitution.
Jim R: Anybody ever tell you that you’re hard-headed? Judge Pepper is/was indeed partially– not totally– ignorant of certain things: (1) He clearly was not familiar with Reed v. Washington State Democratic Party (hereafter “Reed”), which followed the California precedent and struck down Washington’s blanket primary; (2) he was not aware that many Mississippi municipalities had elections scheduled for spring 2009; (3) he has the mistaken notion that voter ID and party registration are necessary for voters to be identified, in order for a party to be able to determine who can vote in its primaries; (4) he’s obviously not aware that a state does not have to require parties to nominate candidates; and (5) he was not aware that Mississippi’s congressional/presidential primaries were scheduled for March 2008.
In California Democratic Party v. Jones (2000), the Supreme Court said that the state could not force parties to engage in blanket primaries to nominate their candidates. Tashjian (1986) was certainly a precedent for Jones, but Clingman v. Beaver 2005 was NOT. It’s not hard to determine party membership in California, since it has party registration. And Pepper did not propose voter ID and party registration for Mississippi– he ordered them.
This is the first time that any court has ever ordered any state to enact voter ID and/or party registration, and, again, I predict that that part of Pepper’s ruling will be reversed.
“[The SCOTUS is] not going to let the parties impose some period of party affiliation before voting in a party primary – and even a state-imposed limit will be suspect.”
The state sets the deadlines for voter registration; a few states even have same-day registration. But a deadline far in advance of the primaries surely wouldn’t pass muster.
Louisiana has party registration, and it has always put candidates’ party affiliatons on the ballots in its nonpartisan state and congressional elections. But putting party labels on the ballot does not make it a partisan election. It’s nonpartisan because the state (1) does not require the parties to nominate candidates, and (2) does not limit the general election ballot to one candidate per party.
Again: Judge Pepper got the essential part right, that Mississippi’s state-mandated open primaries are unconstitutional. I’ve previously offered to wager you, Jim R, that that part of Pepper’s ruling will be upheld on appeal.
How about it?
California Democratic Party v. Jones is the main precedent for the rulings in the Virginia and Mississippi open primary cases. There is no mention in the Jones ruling of either voter ID or party registration.
It now appears that the Virginia case will be the one that prompts a ruling from the U. S. Supreme Court on state-mandated open primaries.
Jim R, you noted that Texas’s special elections are nonpartisan. So are Mississippi’s, e.g., the special election for the seat formerly held by U. S. Sen. Trent Lott.
Our disagreement appears to be over the use of “identify” as found in ‘Jones’ and ‘Tashjian’. I believe it means to ‘identify’ classes of individuals who may vote in a party’s primary. Judge Pepper (and perhaps you) appears to believe it means to ‘identify’ individuals.
In ‘Tashjian’ the SCOTUS ruled that the Republican Party of Connecticut could identify a class of individuals that it wished to be able to participate in some of its primaries (ie non-affiliated voters). In ‘Clingman’ the SCOTUS ruled that the Libertarian Party of Oklahoma could not permit a class of individuals that it had identified (registrants of other parties) to participate in its primaries.
A party might _wish_ to identify all sorts of classes of individuals to exclude from its primaries (such as race, age, sex, those who had not paid membership dues, those who not sworn to a particular set of political values, those who could not pass a test of political knowledge, those who had voted for Trent Lott, those who had not-voted for Trent Lott, etc.) None of these are going to be sustained by any court in the USA. At best, a party might tailor their political message to attract or repulse members of those classes.
So the only possible standard that you have is self-identification by voters. A party might wish there to be a durational period for self-identification, such as requiring being registered with a party for some period before an election. But would a court permit a party to dictate the length of time; or is this a matter of State law? I think the latter (subject only to reasonable limits).
And if it is a matter of State law, then the State might well permit voters to register with a party or change their party registration immediately before they vote in the primary. And there is really no difference between having that choice recorded by the State, and that choice being made by the voter in secret as is done in Montana.
In ‘Reed’, the 9th Court of Appeals ruled that the Washington blanket primary was not materially different from the pre-‘Jones’ California blanket primary. Though California had party registration, and Washington did not, the court ruled that Washington voters still identified with one party or another, and through the blanket primary were able to participate in the nomination process of another party, just as they had in California.
Steve R: Why do you think that Judge Pepper was unaware of ‘Reed v. Washington State Democratic Party’? Is it because he said that Washington has a “modified blanket primary”? He noted that Washington’s current (Top 2) law had been held unconstitutional by the 9th Circuit, and that the SCOTUS had agreed to hear an appeal. That certainly is accurate.
If you read the 9th Circuit’s opinion in ‘Washington State Republican Party v. State of Washington’ you will see that the court characterized the (Top 2) law as a “modified blanket primary” as compared to the pre-Reed “blanket primary”. The 9th Circuit was the highest court to hear ‘Reed’, and they said that the (old) Washington blanket primary was not materially different than the pre-‘Jones’ California blanket primary law.
So it is reasonable to state that the current* Washington law is similar to the pre-Jones California law.
*The top 2 primary is the current law in Washington, even if it is under injunction.
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I agree that Judge Pepper is confused over the use of “identify”. The SCOTUS has used the word in the sense of a state ‘identifying’ persons over the age of 21 as being an eligible class for the legal consumption of alchohol. Judge Pepper appears to be using it more in a sense of a tavern using a driver’s license to ‘identify’ members of the class before serving them.
Voter IDs and party registration are not required for the Mississippi Democratic Party to identify (or determine) the class of persons who may participate in their primary.
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Mississippi has a strange way of determining when its congressional primaries are held. Nominally they are scheduled for June, but in presidential elections years they are moved to March to coincide with a presidential preference primary. But presidential preference primaries are voluntary. If no party wants to hold a presidential preference primary, none is held, and the congressional primaries remain in June.
Judge Pepper at the time of his original order was apparently not aware that the Democratic Party had requested a presidential preference party. So his original schedule provided that the August 2007 legislative primaries would go on without modification. The legislature would then have an opportunity to provide an alternative primary scheme during its 2008 regular session.
In his July 17, 2007 order; Judge Pepper recognized that the Democratic Party had in April 2007, requested a presidential preference primary, therefore triggering a move of the congressional primaries to March 2008. He modified his order to permit those election and the summer 2008 municipal elections to be conducted under the existing scheme. It is unclear whether his deadline for legislative action was modified or not, that is whether it is only the legislature had until April 1, 2008 to come up with a new scheme for primaries after summer 2008, or they had until fall 2008 to provide a remedy for subsequent elections. It is all moot for now since the case is under appeal.
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Texas special elections are not non-partisan. A non-partisan election is one in which candidates do not have a party label. I think that there has been a careless application of the term “non-partisan”. A “party primary” or a “partisan primary” is one in which a party selects its nominee(s) for office. I think it is misleading to classify primaries that are not “party primaries” or “partisan primaries” as “non-partisan primaries”.
And of course, special elections are not primaries (though of course in some states – not Texas – there are primaries before special elections).
Steve R: I believe this is the core of Judge Pepper’s decision:
“The court concludes that the primary system currently in place in Mississippi violates the
Mississippi Democratic Party’s First Amendment right to disassociate itself from those who are not
in fact affiliates of the Mississippi Democratic Party in Democratic primaries because there is no
mechanism in place for the political parties in Mississippi to verify the party affiliation of the
prospective primary voter.”
Since he also stated that the primary system currently in place is “facially closed”, I don’t see how we can bet on whether his ruling that Mississippi’s open primary system is unconstitutional will be upheld.
I think that 23-15-575 will ultimately be rejected by the courts, but perhaps not for the reasons given by Judge Pepper. But I don’t think that 23-15-575 really has that much to do with Mississippi having an open, closed, semi-open, semi-closed, blanket, modified blanket primary system.
Jim R writes: “… there is really no difference between having that choice [of party primary] recorded by the State, and that choice being made by the voter in secret as is done in Montana.”
There’s a BIG difference. When a voter publicly registers with a party, he’s far more likely to be in sympathy with the beliefs of that party. In the Montana system, in contrast, it’s easy for a voter who is hostile to a party’s beliefs to help nominate that party’s candidates.
I haven’t read Judge Pepper’s ruling since last June (which he amended in July), but it was clear to me that he was not familiar with the 2004 ruling on Washington state’s blanket primary (Reed v. Washington State Democratic Party).
“So it is reasonable to state that the current* Washington law is similar to the pre-Jones California law.
“*The top 2 primary is the current law in Washington, even if it is under injunction.”
The primary election law that Washington state is following now is the one that was enacted in 2004, which established a Montana-style open primary. The voters, of course, approved the “top two” in November 2004, but it has not been implemented due to the pending litigation.
In the “top two,” parties have no way of nominating candidates and thus are not assured of having a candidate in the final election. In the blanket primary that Washington and California formerly used, each party had the right to nominate one candidate for each office on the general election ballot.
The “top two” is nonpartisan, while the blanket primary was partisan. The two systems are similar in that the voter gets to choose among ALL party candidates in the first round.
Mississippi’s congressional primaries were for years held in June. The March option was created about the time that the “Super Tuesday” idea for presidential primaries came along, in order to avoid the expense of having presidential and congressional primaries on different dates. (The parties still have the choice of holding presidential caucuses.)
“[Judge Pepper] modified his order to permit [the March 2008 primaries] and the summer 2008 municipal elections to be conducted under the existing [open primary] scheme.”
The problem was that the legislature’s session was to begin in January 2008, and the primaries were slated for March 11. No Mississippi municipalities have regular elections in summer 2008. A few have elections in spring 2008, but most have them in spring 2009.
I think it is misleading to classify primaries that are not “party primaries†or “partisan primaries†as “non-partisan primariesâ€.
(See the third paragraph from the bottom of comment #28 above.) “Nonpartisan primary” is definitely an oxymoron; however, it has been an accepted term since the early 1900s, when municipalities began having nonpartisan elections.
In California Democratic Party v. Jones, Scalia called the “top two” system a “nonpartisan blanket primary”– as opposed to the partisan blanket primaries that WA and CA then had. Justice Stevens wrote– correctly, in my view– that the Louisiana/”top two” is a general election with a runoff.
“… special elections are not primaries (though of course in some states – not Texas – there are primaries before special elections).”
Special elections as conducted in Texas and Mississippi are nonpartisan general elections with runoffs. Again: putting party labels on such a ballot does not make it a partisan election.
Numerous books written by political scientists refer to the Louisiana/”top two” as “nonpartisan”– which it is (See, e.g., Voting at the Political Fault Line…).
As to your quote from Judge Pepper in comment #32 above: It’s true that no mechanism such as party registration has been established by the state; however, there are other ways that a party could identify voters. The party could, e. g., define as members those voters who had consistently voted in that party’s primaries over a certain period of time. Or the party could poll every registered voter to determine his/her party preference.
The problem is that, under the current law, the party could not apply that data, since the law says that a party must open its primaries to ALL voters.
I’ll wager you that the courts will ultimately declare the state-mandated open primary unconstitutional.
How about it?
To clarify: I stated that, in both the Louisiana/”top two” and the old Washington/California blanket primaries, the voter in the first round gets to choose among all candidates of all parties.
In the Louisiana/”top two” as well as the old Washington state blanket primary, independent candidates are/were also listed on the first-round ballot. Under the old California blanket primary, however, independents were only listed on the general election ballot.
Steve R: While you may think that there is a BIG difference between having a voter publically registered with a party, and a voter choosing a party in secret, the 9th Circuit in their ‘Democratic Party of Washington State v. Reed’ decision found that there was not a MATERIAL difference between Washington’s blanket primary and California’s blanket primary, even though the most significant difference between the two States was that voters in Washington do not register with parties, while those in California do.
A link to the ‘Reed’ decision is available here:
http://1stam.umn.edu/main/cases/FCA_chron.htm
_______________________________________________
Judge Pepper’s orders in ‘Mississippi Democratic Party v. Barbour’ are here:
http://www.msnd.uscourts.gov/opinionsinterest.htm
The only place I see where you might have got the impression that Judge Pepper was not familiar with ‘Reed’ was in the section where he was characterizing the various types of primaries, and where he said that Washington has a “modified blanket primary”. But in that same section he refers to the current litigation over the Top 2 primary in ‘Washington Republican Party v. Washington’.
Everything related to the current litigation is here:
http://www.secstate.wa.gov/elections/toptwo.aspx
If you read the 9th Circuit’s opinion, you’ll see that they characterize the Top 2 primary as a “modified blanket primary” which they contrast to the “blanket primary” which THEY ruled on in ‘Reed’. I can only ask you both to re-read ‘Reed’ and re-read Judge Pepper’s in ‘MDP vs Barbour’
The Top 2 primary is what current Washington law is. It is currently under injunction. So they are using the Pick A Party primary system that was put in place by the legislature after ‘Reed’ found Washington’s old blanket primary system was unconstitutional.
__________________________________________________
Special elections are “special” specifically because they are neither “primary” nor “general” elections. “general” elections are held on a regular schedule to elect officers for a full term. “special” elections are typically used to fill vacancies, but there can be other circumstances (in 1996 and 2006, after court-ordered re-districting of some congressional districts in Texas, special elections were held on the November election day in those districts.) Please do not confuse “special” and “general” elections.
“primary” simply means “first”, as in “primary”, “secondary”, “tertiary”, etc. That is, it is the first election in a series. While most primaries are used to nominate the candidates of a party, that is not necessarily so. For example, see the non-partisan top 2 primary for Nebraska’s Senate. Other examples are (some) North Carolina cities, and Wyoming judicial elections.
Since most primaries are party primaries, that is they decide the nominee of a political party, some people have decided to call other primaries “non-partisan primaries”, I think that is very confusing since many States have “non-partisan elections” for local elections, in which candidates do not have a party label. If some political “scientists” use the term, it may be due to simple carelessness.
People who refer to Louisiana’s election system (which is no longer used for congressional elections) as “non-partisan” also include “Louisiana-style” as part of the name. Note that Voting at the Political Fault Line, also encloses “primary” in quotes when referring to the Louisiana system.
Under Mississippi law, the congressional primary is in July. However, if it is a presidential election year AND IF one of the parties decides to hold a presidential preference primary, the congressional primaries are held in March at the time of the presidential preference primary.
In April 2007, the Mississippi Democratic Party filed to have a presidential preference primary. This occurred while the case was under consideration (the original case filing was in February 2006).
It is not clear when the Mississippi Republican Party decided to hold a presidential preference primary. There was a resolution by the state executive committee in late June 2007, but this might have only dealt with the particulars of how the primary would be conducted.
If you re-read Judge Pepper’s amended order from July, you will see that AG Hood filed an affidavit with regard to the Mississippi Democratic Party’s decision to hold a presidential preference primary, which triggered the switch of the congressional primary from July to March. Based on that information, Judge Pepper amended the timeline for when a new primary system would take effect. It is ambigious whether he still expected the Mississippi legislature to act by April 1, to provide for a primary system that would take place after the summer municipal primaries or not.
“The problem was that the legislature’s session was to begin in January 2008, and the primaries were slated for March 11. No Mississippi municipalities have regular elections in summer 2008. A few have elections in spring 2008, but most have them in spring 2009.”
Judge Pepper’s amended order says that “furthermore, Mr.Hood and Mr. Clark aver that there will be additional primaries held for municipal special charter elections during the summer of 2008”. Jim Hood is the AG, and Eric Clark was the SoS at the time.
So the congressional primaries were not slated for March until the Democratic Party made an official decision to hold a presidential preference primary in 2008.
This is what I believe is the core of Judge Pepper’s decision:
“The court concludes that the primary system currently in place in Mississippi violates the Mississippi Democratic Party’s First Amendment right to disassociate itself from those who are not in fact affiliates of the Mississippi Democratic Party in Democratic primaries because there is no mechanism in place for the political parties in Mississippi to verify the party affiliation of the prospective primary voter.â€
Do you disagree that this is the core of his decision? I’m not asking whether you agree with Judge Pepper’s decision or think that he is a ignorant buffoon, but whether this is the core of his decision.
Under Mississippi law, in particular § 23-15-575, primaries are restricted to party members:
“No person shall be eligible to participate in any primary election unless he intends to support the nominations made in the primary in which he participates.”
That is not the same as “anyone can vote in the primary”. Judge Pepper ruled that § 23-15-575 is not enforceable by the Mississippi Democratic Party.
So what’s your point in comment #37?
It’s amazing that you seem to think you know more about Mississippi’s election process than I do.
You still haven’t responded to my wager offer from comment #33.
Re: #37
You have offered a wager with regard to Judge Pepper’s decision. Before _I_ am willing to make a wager, we must have a common understanding of what Judge Pepper ruled.
In all your offers so far you have claimed that Judge Pepper’s ruling against open primaries would be upheld. Yet Judge Pepper himself characterized Mississippi’s scheme as facially closed.
The quote in #37 which says that Mississippi’s current primary scheme is unconstitutional, in the immediately prior sentence, says that it is a closed primary.
What would be amazing were it not so commonplace, is your unwillingness to re-read the actual court decisions (which you apparently have not read in several months) even when I have provided links to the decisions.
Take for example, Judge Pepper’s knowledge or lack of knowledge of ‘Reed’. First that has nothing to do with your knowledge of Mississippi’s political system. You made a claim. I found it curious that there would be a reference to ‘Reed’ in his decision. So I re-read Pepper’s decision. I found where you might have got that impression, and explained why your impression was in error.
You could have re-read Pepper’s decision, and perhaps found another place that indicated a lack of knowledge of ‘Reed’, or you could have directed me to a particular place in the decision that I may have missed.
My wager offer is the next-to-last sentence of comment #33.
Richard Winger, publisher of this blog and one of the nation’s top experts on ballot access issues, calls the Mississippi system an open primary. Is he wrong? If so, you’d better straighten him out on that.
My knowledge of Mississippi’s election process comes from having participated in it for 35-plus years, whereas yours evidently comes mainly from reading things about it that are not always correct.
You stated above that Mississippi’s congressional elections, when not held in March, are held in JULY. In fact, it’s JUNE. You also said that we have municipal elections slated for summer 2008, and that’s wrong too.
Why is it “curious” that Pepper refers to the Reed ruling? It follows the precedent in CA Dem Party v. Jones, and the Mississippi Democrats mention it in their original complaint.
In his June 2007 order, Pepper called Mississippi’s primaries “semi-closed,” which is impossible with no way of identifying independent voters. Of course, he’s not ignorant about anything, is he?
I decline your offer of a wager that you made in #33, because IMO the conditions are ill-stated. Mississippi law sets a condition for participation in primaries that makes them closed. It doesn’t matter whether the Mississippi legislature is cunning and deceptive and really intended them to be oppen, or whether the Mississippi legislature is stupid and incompetent, amd accidentally made them open. They are facially closed. If legal action eventually results in them being closed, it will be an effort to make the closure effective.
If this were a case in Montana where there is not only no party registration but no way to know which primary a voter voted in, then a wager might be possible.
This thread was initiated by Richard Winger’s blog entry about a Texas election, not a Mississippi election. Your 35-years experience in Mississippi might not inform you as well about other States.
With regard to “MDP v. Barbour”, my knowledge comes from reading Judge Pepper’s orders and reading the Mississippi statutes. I don’t know what things you believe that I have read.
You are correct, that Mississippi congressional primaries are in JUNE not JULY. My carelessness – I had read the law, and checked on when Mississippi held its 2006 primary, and even noticed how weird it was to hold congressional primaries in June, and odd-year statewide and legislative primaries in August, and then wrote July rather than June.
But you have yet to acknowledge that the reason that Judge Pepper changed his original implementation schedule was because Jim Hood and Eric Clark filed a motion along with an affidavit that the MDP had filed to hold a presidential preferential primary. Under Mississippi law, when a party decides to hold a presidential preference party, it triggers a move of the congressional primaries from June to March. For that reason, Judge Pepper amended his original order.
Re: Summer 2008. In his July order, Judge Pepper wrote:
“Furthermore, Mr. Hood and Mr. Clark aver that there will be additional primaries held for municipal special charter elections during the summer of 2008 which also should be allowed to be conducted under the current system”
It appears the Judge Pepper may have misunderstood what Eric Clark was stating with regard to the municipal special charter elections. Clark basically said that if re-registration began in Summer 2008, there would be a year before the summer 2009 primaries, “except for municipal special charter elections and barring any special elections to fill vacancies.” Clark did not provide a date for the municipal special charter elections – and it appears that he did not regard them as especially problematical with regard to re-registration. He wanted a year following the March 2008 primaries (plus possible runoffs in April) and before the Summer 2009 primaries.
I meant it “curious” that YOU would expect Judge Pepper would mention ‘Reed’. While it is true that Mississippi Democratic Party mentioned ‘Reed’ in their original complaint, it is entirely incidental to their reference to ‘Jones’. If you believe that the Mississippi Democratic Party was highlighting some expansion of ‘Jones’ in ‘Reed’ please quote from their filings something that supports your belief. As I noted earlier, the 9th Circuit in ‘Reed’ ruled that the Washington blanket primary was not materially different than the California blanket primary. In denying certiori, we can infer that the SCOTUS was cool with that 9th Circuit ruling, and that they felt no need to refine their ‘Jones’ decision based on the differences between Washington and California.
In his June 2007 order, Judge Pepper wrote:
“To avoid further confusion regarding the term ‘semi-closed,’ this court will characterize Mississippi as having a ‘facially’ closed primary because the language of Miss.Code.Ann. § 23-15-57 indicates that the primary is closed”
He may have been overly optimistic about persons becoming confused.