On October 10, U.S. District Court Judge Robert Echols held a hearing in Kurita v The State Primary Board of the Tennessee Democratic Party, no. 3:08-cv-948. The issue is whether the Tennessee Democratic Party had the authority to set aside the August 2008 primary election results in a particular State Senate race. Senator Rosalind Kurita won the Democratic primary, but the Democratic Party certified the candidate she defeated, because it said too many Republicans had voted in the primary. Here is a story about the hearing. This case gets to the heart of the extent to which political parties have a First Amendment Freedom of Association to truly control their own nominations process or not.
Ballot Access News
Edited By Richard Winger
Yet another example of why Top 2 is better. Under Top 2, candidacy for office is vested in the person who seeks office, rather than in political parties. Citizens may still band together to support individual candidates.
The August elections included not only primaries for congress and the legislature, but non-partisan judicial races, plus non-partisan local races including school board, assesor, and road superintendent. It was conducted by the state (county) election authorities, and to an ordinary voter would appear to be a state-sponsored and operated activity.
While state law does give a party state primary board the authority to rule on contested primaries, most of that section is about contested general elections which are conducted as judicial proceedings. So can a political party that has a party primary because it is required to by state law, make up rules on the fly after the fact as who may participate in its primary.
For a regular contested election, the alternatives are to declare a winner, or to void the election – that is to decide that there is nobody elected. But state law only provides for replacement of a primary winner in certain cases (death, illness, mental incapacity, moving from a district for a job requirement). So even if the primary was voided, there does not appear to be a right for a party to designate a replacement nominee.
So the issue at the heart of the case is whether a “party” primary is so enmeshed with state law as to be practically indistinguishable. And if so must the political parties observe such niceties as due process in the conduct of their public activities.
A contest of the general election would be decided by the state Senate. Ballots not prepared in compliance with state law and the requirement that party nominees be determined by primary would seem to be reason to set aside the results of the election.