1. It’s worth noting that, other than president, the only offices for which Louisiana’s parties can officially nominate candidates are seats in the U. S. Congress. The state, of course, has nonpartisan elections– popularly called “open primaries”– for state and local offices.

2. I have just found out that the committee hearing has been rescheduled to Wednesday, May 27, presumably because today is a holiday.

   The meeting starts at 9AM.

   Here’s the committee’s updated agenda:
   http://house.louisiana.gov/Agendas_2009/May_09/0527_09_HG.pdf

   I don’t know when HB 776 will come up. They don’t necessarily hear the bills in the order in which they are listed on the agenda. For example, HB 776 was rather low on last week’s published agenda, but was the second bill discussed that day.

3. Richard, thank you for covering this issue, and also Randal for contacting the Green Party of Louisiana as well. I have sent an open letter to the members of the House & Government Affairs committee. In the meeting on the 19th, there was an obvious lack of clarity in the discussion, hopefully representatives from smaller parties are able to make it to the next meeting on short notice.

4. I wonder how I could go about trying to testify at this hearing.

5. I wonder how they can justify this legislation in light of the Tashjian ruling, which would make it immediately unconstitutional?

6. #5: The Tashjian ruling gave parties the right to invite independents to vote in their primaries.

   At the very least, it would be grossly unfair for the state to provide a means for the major parties to officially nominate candidates, but not the minor parties.

7. Any Louisiana voter may vote in all elections for members of the larger branch of the Louisiana legislature. Therefore, any Louisiana voter is qualified under Article 1, Section 2 (and the 17th Amendment) of the United States Constitution to vote in all elections for Congress (see Tashjian).

   The current Louisiana scheme for electing members of Congress introduces additional unconstitutional voter qualifications for voting, and proposed bill HB 776 would only make it worse.

   Members of the Mickey Mouse and other non-recognized parties are denied the right to vote. Non-affiliated voters right to vote is subject to the whim of private organizations, even though Louisiana is footing the bill and recognizing the winners of the party primaries.

   In one district, even though there were multiple candidates, only Republicans were permitted to vote, and in two districts NO election was held on the date designated by Congress for choosing representatives, which probably also puts Louisiana in violation of Foster v. Love

   Louisiana should simply return to the open primary for the election of members of Congress.

8. #6 The Tashjian ruling recognized that the qualification to vote for members of Congress in all elections, including primaries, should be at least as broad as that for election to the larger branch of the legislature.

9. T. Lee Horne, III – chairman of the LPL plans to be at the hearing tomorrow to testify on the LP’s behalf to kill this bill. We may have another speaker as well. I wish I could go myself, but that won’t be possible. I hope the other two affected parties make a showing as well.

   Mr. Seebeck, could you expound more on the Tashjian ruling? I can’t seem to find it online at the moment.

10. @Trent Hill See below document. I have not done it myself but fill out a witness card and present it to the committee secretary. There is a witness podium for you to speak when called.

    Here is the Committee Procedure:
    http://house.louisiana.gov/H_Cmtes/H_CmteRules/2008_HGA.pdf

11. Adrien, see http://supreme.justia.com/us/479/208/case.html

    The Tashjian ruling recognized the First Amendment right of political parties to conduct their own operations and nominate their own candidates by their own rules.

    To quote:

    “Held.

    “1. Section 9-431 impermissibly burdens the rights of the Party and its members protected by the First and Fourteenth Amendments. Pp. 479 U. S. 213-225.

    “(a) The freedom of association protected by those Amendments includes partisan political organization. Section 9-431 places limits upon the group of registered voters whom the Party may invite to participate in the “basic function” of selecting the Party’s candidates. The State thus limits the Party’s associational opportunities at the crucial juncture at which the appeal to common principles may be translated into concerted action, and hence to political power in the community. The fact that the State has the power to regulate the time, place, and manner of elections does not justify, without more, the abridgment of fundamental rights, such as the right to vote or, as here, the freedom of political association.”

    IOW, the state cannot interfere with a political party selecting its candidates beyond the basic constitutional eligibility requirements. Absent any ability to nominate, that’s the state interfering with a political party selecting its candidates beyond the basic constitutional eligibility requirements, since the nomination is the selection. Pretty simple, actually.

12. There is another aspect of Tashjian that applies especially to Louisiana.

    The US Constitution sets the qualifications for voting in congressional and senatorial elections to be the “qualifications requisite for electors of the most numerous branch of the state legislature.” IOW, if a State permitted voters who were 16 YO to vote for state representatives, the State would have to permit 16 YO to vote for Congress.

    The Supreme Court has determined that primary elections are part of the electoral process, and therefore subject to the federal constitution. This was explicitly confirmed in the Tashjian decision.

    The Connecticut Republican party sought to permit non-affiliated voters to vote in its congressional primary, but not its legislative primaries. Thus persons unqualified to vote in an election for the Connecticut House would be qualified to vote for Congress. Justice Stevens wrote a dissent that would simply have rejected the case on the basis of this disparity.

    But the majority, apparently intent on ruling on the juicier, but more nebulous 1st Amendment political association rights, chose to largely ignore the concrete constitutional prohibition on having different voter qualifications for congressional and legislative elections. Justice Marshall in his opinion acknowledged that there was a restriction, but then mumbled on that it somehow didn’t apply. The syllabus at least suggests that if the qualification for voting in congressional elections was more restrictive than for the legislative elections it would violate the US Constitution.

    Nebraska, like Louisiana, has non-partisan primaries for the legislature, but partisan primaries for Congress. After the Tashjian ruling, the Nebraska AG issued a ruling that the congressional primaries must be open to all Nebraska voters. The situation in Nebraska, as it is in Louisiana, was the reverse of what it was in Connecticut, because the franchise for Congress was more restrictive than it was for the legislature. The AG’s ruling, has now been implemented in Nebraska law.

    In Nebraska congressional primaries, a non-affiliated voter may choose to vote in the congressional primary of any political party (in 2008 there were four parties, Democratic, Green, Nebraska, and Republican) party. Nebraska, unlike Louisiana, also has partisan primaries for other offices, such as governor. Non-affiliated voters are not permitted to vote in the partisan primaries for these other offices.

    So at the primary, registrants with each party are given a ballot with partisan offices. They are also given a ballot with non-partisan offices, including the legislature, university board of regents, local offices, ballot issues, etc. Non-affiliated voters may choose a partisan congressional ballot and also vote the non-partisan ballot. So there a 2 * num_parties + 1 ballot formats.

    Nebraska also permits write-in votes. So instead of cancelling the primary if no or only one candidate files, the race appears on the ballot with a write-in space. By cancelling uncontested elections, Louisiana is probably going to run afoul of Foster v. Love which requires that voters choose their US representatives and senators on the date designated by Congress (1st Tuesday after 1st Monday in November).

    Louisiana elects its legislature in odd-numbered years. But in 2008, there were several special non-partisan legislative elections held at the same time as the partisan congressional primaries. Based on the hearing, it appears that Louisiana has buttons on the side of its voting machines which election judges manipulate in order to lock out certain voters from voting in congressional elections, while simultaneously permitting them to vote in legislative primaries. This mechanism is deliberately enforcing a differential and unconstitutional voter qualification.

    Louisiana should follow Nebraska’s lead and permit non-affiliated voters and registrants with non-recognized parties to vote in the congressional primary of their choice. Since Louisiana has no other partisan primaries except for the presidential preference primary, which is held at a different time of year, there would only be a need for num_parties + 1 ballot formats.

    Louisiana could then simply lock out each voter from voting in the other party primaries, and all voters could then vote in any other contests on the ballot. If Louisiana’s voting machine technology does not permit this, they should use paper ballots for the congressional primaries.

    This is imminently a preferable solution to hoping that two candidates don’t file for nomination, or would attempt to institutionalize the current two party system (what if 5 parties did get the 40,000 registrants each?).

    And if Louisiana permitted write-in voting in congressional races, they wouldn’t be figuring out contingencies in case too many candidates file. They would have already have figured out how to permit all citizens to vote, instead of trying to figure out ways to prevent them from voting.

13. Jim, well said on #12. I agree that the focus should be on ensuring people CAN vote rather than trying to prevent them from doing so.

    However in #7 you note that independents can be disenfranchised by the parties. Actually, parties have right of free association (as Tashjian notes) and so that is okay. The problem comes in when the State FORCES or DENIES associations that a violation occurs. People and parties should be free to choose with whom they do and DO NOT associate with. So if the Republicans don’t want to allow independents to participate in their internal decisions, that’s perfectly okay.

    I think the biggest problem is the reliance on AVC Advantage machines with respect to logistics. The AVC Edge systems used for early voting in LA are LCD touch screens and are not limited to a fixed size ballot. Nor are they limited to the number of parties to lock out since this is software controlled rather than by physical buttons.

    There is another solution I fnd curious that it hasn’t been discussed in any state that I’m aware of:

    Let independent candidates fight in their own primary with independent voters with only one of them advancing to the general election.

    This would allow ALL voters an opportunity to participate, as well as fix the size of the election to # parties +1 (for independents)

    This would benefit the independent candidates tremendously as it would give them an avenue to test their platform before the general election like the other parties still enjoy.

    It would also put pressure on the major parties since the vote against them will be less diluted.

    (of course adopting range voting would be the better solution, but that is for another discussion)

14. #7 The rights of political association are not absolute, and when a State makes a primary an integral part of the election process the political parties become subject to the US Constitution. For example even if a party did not want to associate with white voters, males voters, or voters over 40 they could not prevent them from voting in their primary. Nor could they impose a poll tax, institute literacy tests, or any other discriminatory practice that would not be permitted in a general election.

    The US Constitution sets the qualification for voting for US Representatives and Senators to be the same as that for the larger branch of the legislature. Back when many States had a property qualification, if they let someone with $100 in property vote for the legislature, they could not set a higher standard for voting for Congress.

    If you read Part IV of the Tashjian majority opinion you will see that the voter qualification clause is still in effect and still valid. This is made even clearer by the Stevens dissent.

    After the Tashjian decision the Nebraska Attorney General http://www.ago.ne.gov/ issued Opinion 87070 (do a search under Attorney General opinions) saying that Nebraska’s practice of holding closed primaries for Congress was probably unconstitutional.

    Nebraska is the State with the election practices most similar to Louisiana, in that legislative elections are non-partisan (ie all voters may participate), while congressional elections (since 2008) use a partisan primary. Nebraska also has partisan primaries for many statewide offices, while Louisiana does not, but that is not relevant to this discussion.

    The AG opinion said that the congressional primaries would have to be opened to all voters. The legislature later enacted this into law.

    I think that Louisiana would lose a challenge on this basis, especially if there was any testimony about the precise lock out procedures which are used to prevent qualified voters from voting.

    It actually sounds like it would be easier for Louisiana to simply place all five party primaries on the ballot (Nebraska permits write-ins even when no candidate files) and simply let non-affiliated and Mickey Mouse and other non-recognized party voters pick which congressional primary they wished to vote in.

15. #13 In Hawaii, independent candidates are placed on the primary ballot.

    Hawaii does not have party registration and places all candidates, including independents on a single ballot. Each voter then marks their party selection on the ballot and may only vote in races for that party. Alternatively, voters may vote in the Nonpartisan primary, where they may vote for independent candidates.

    An independent candidate qualifies for the general election ballot by securing a certain percentage of the total primary vote for an office, or by outpolling the nominee of one of the other parties. This can actually be a pretty high barrier, but that is immaterial to the general concept.

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