On August 14, the United Citizens Party had filed a lawsuit against the South Carolina Elections Commission, challenging the Elections Commission’s 2008 rule that forces candidates to file multiple declarations of candidacy, if they are seeking the nomination of more than one political party. The party says the state didn’t pre-clear that change with the U.S. Justice Department. Before 2008, a candidate only needed to file a single declaration of candidacy, which meant more flexibility for that candidate to later decide which party nominations he or she would seek.
On October 2, a U.S. District Court Judge ruled that a 3-judge case will be convened in this case, and will be argued before those three judges on November 18. Federal lawsuits involving the Voting Rights Act usually require 3-judge courts. The case is Gray v South Carolina Election Commission, 3:09cv-2126.
The statute is pretty clear. The only ambiguity is the use of “their respective party” with regard to whom a candidate must file.
But if that is literally limited to the party to which a candidate belongs, then a member of the Democratic Party would file his intent to seek the nomination of the Green Party with the Democratic Party who would have no responsibility to inform the Green Party that the filer was seeking their nomination.
Since the underlying statute was pre-cleared in 1988, if the election commission had previously applied a different interpretation, then it was contrary to both statute and done without VRA pre-clearance (and with respect to congressional and presidential elections without constitutional authority).
So you have three cases in South Carolina that adoption of Top 2 would resolve. Candidates would simply file for a place on the primary ballot. Private political clubs, parties, or organizations, would be totally free to make endorsements arrived in whatever manner they chose, and publicize these endorsements in whatever manner they thought appropriate.
If a state wants to avoid being entangled in election law lawsuits, it should not pass “top-two”. Washington state has been in continuous litigation over its primary election system for 9 years now.
There are only two election law cases pending in South Carolina, not three. The Republican case is over because the party withdrew it two months ago.
The lawsuit centers on the SC State Election Commission’s failure to comply with the Voting Rights Act of 1964’s requirements that specific states with a history of racial discrimination in state law with regard to enfranchisement. The lawsuit will determine whether the state is free to circumvent the law via administrative fiat.
This case has nothing more to do with top-two than it does with proportional representation or the poll tax. It centers on practices, not policies.
#3 The South Carolina legislature passed the underlying statute in 1988, and it was pre-cleared at that time.
The statute is reasonably clear. The only way to interpret it as requiring a single declaration of intent is if you read it to mean that if a member of Party A intends to seek the nomination of Party B, that he must file his intent with his party (Party A) and that Party B is somehow supposed to know to consider the nomination, including putting the candidate on a primary ballot. There is no way that it could be interpreted to permit a declaration of intent after March 30th.
So SC said that we are going to do X, and the DOJ said fine.
If the election commission did institute some other practice, it is contrary to what SC said they were going to do; contrary to what the DOJ approved; and likely outside the authority of the election commission – which I doubt has the authority to misinterpret and misapply state statute.
If there was need for a second pre-clearance it would be to pre-clear the commissions’ misinterpretation of the statute. But why would the state file for pre-clearance for an interpretation that is contrary to the statute, and not within the commission’s authority to make? I don’t think it will happen.
So that leaves the plaintiffs to argue that there is a de facto practice, which is contrary to statute and contrary to what the DOJ pre-cleared. Yet to align its practice with the statute and what the DOJ has already pre-cleared, the commission must pre-clear again?
I suppose it could be considered a case about practice, but not election practices per se, but rather pre-clearance practices.
But let’s take a more radical approach and look at the fundamentals. The reason South Carolina has elections is so that its citizens can elect its officers, which is intrinsic to a republican form of government. The purpose is not to provide a set of statutes that lawyers can chase their tails trying to interpret.
The current system of partisan nominations is interfering with the rights of citizens to elect their officers, and preventing candidates and their supporters from contesting the elections in the manner which they choose.
If you eliminate partisan nominations, then a candidate simply files with the State his intent to do so and includes a filing fee or petition. You don’t have this silliness about whether a candidate must file his intent to run for a public office with a private organization, and how many private organizations that a candidate must file with, and when; and whether if one private organization decides that they don’t like him, that other private organization can’t support his election, even if they like him; and who can participate in the activities of the private organization.
If the Bilious Billy Goat Party wants to encourage a candidate to run for office, or support his candidacy by giving him financial support, by advertising the support of the BBGP, by communicating with their members that they should vote for the candidate they would be entirely free to do so.
#2 Washington had used the blanket primary for most of its history. They certainly could not anticipate that close to a century later that California would adopt a similar scheme, and later have it ruled unconstitutional by the Supreme Court (which overruled the 9th Circuit and the district court). Who knows if the Washington blanket primary scheme had gone to the Supreme Court whether the ruling would have gone the same way.
The fact that California had party registration and applied the scheme to minor parties may have been enough to tip the decision (you had clear evidence of “party raiding” in the legislative race where only the Libertarians had a contested primary and a publicly declared voter party affiliation with some other party).
When did litigation against the Washington blanket primary begin? Was it after the Supreme Court had decided Jones? There would be no reason to mount a challenge based on the 9th Circuit’s decision, especially since Washington and California are both in the same circuit. So it may not have been 9 years.
Had Governor Locke not vetoed the Top 2 legislation, the litigation might not have gone on so long, since the legislature would have been able to clean up loose ends that have obscured the key elements.
The Republican grievance in South Carolina still exists, even though it is not an active case. And adoption of Top 2 would alleviate it.