On November 16, attorneys for the state of South Carolina filed this brief in the lawsuit South Carolina Green Party v South Carolina State Election Commission, pending in the 4th circuit.
The Green Party nominated Eugene Platt for state legislature on May 3, 2008, at a convention. The next month, Platt was defeated for the Democratic Party nomination for the same seat. South Carolina permits fusion, so Platt had been hoping to be the nominee of both parties in November. Because he lost the Democratic nomination in June, the Green Party nomination was considered void by the state, and Platt was omitted from the November ballot entirely. The state’s brief mostly ignores Platt’s strongest precedent, called California Democratic Party v Jones, the U.S. Supreme Court 2000 decision that said it is unconstitutional for a state to force a party to let outsiders help determine its nominee. Platt argues that since the Democratic Party was permitted to cancel out his Green Party nomination, the South Carolina system (as appled to instances when a minor party nominates first, before a major party nominating event) violates the principles set forth in California Democratic Party v Jones.
The state argues that Platt knew he was jeopardizing his Green Party nomination by running in the Democratic primary, and if he wanted to guarantee his Green Party nomination he should have avoided seeking the Democratic nomination. One wonders, what is the purpose of South Carolina’s fusion law, if not to encourage (rather than discourage) candidates from trying to use it.
The state’s brief also has a factual error on page 23. It says the U.S. Taxpayers Party nominated Pat Buchanan for president in 1996. This is not true. The U.S. Taxpayers Party only held one presidential convention in 1996, in San Diego, in August 1996, and it nominated Howard Phillips for President.
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Under the California blanket primary, parties were involuntarily subjected to the possibility that non-party affiliates would choose the party’s nominees.
In South Carolina, the Green Party and Eugene Platt had voluntarily entered into association knowing that Platt’s loss of the Democratic nomination would preclude his being on the general election ballot. In practice, the South Carolina situation is probably a better argument for a sore loser law than elsewhere. In effect Platt was saying to Democrat voters, vote for me, and I’ll bring along my supporters in the Green Party; vote for my opponent, and I’ll try to split the Democratic party and draw its adherents to me.
The real problem is that the South Carolina doesn’t simply let any individual who wishes to run in an election in which the entire electorate may vote, such as is used for electing the legislatures in Louisiana, Nebraska, and Washington (and potentially California).
The Top 2 version proposed for Oregon in 2008 had an explicit provision for fusion, in that both a candidate’s party affiliation and endorsement(s) would have appeared on the ballot.
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The May 3, 1996 issue of BAN says that the US Taxpayers Party had attempted to nominate Buchanan in Texas, and had run afoul of Texas’s sore loser law that prevents candidates who had run and lost in a presidential primary seeking to be independently nominated to the Presidency. There is a note that says that the judge had considered withholding judgment since the party had not formally nominated Buchanan, and Buchanan had not yet said whether he would accept the nomination.
So from the perspective of the legal case in Texas, Buchanan was the candidate of the USTP, and the brief in the Platt case is correct. Incidentally, Howard Phillips tried to get Buchanan to run 1996, and has claimed that if he had, he might have outpolled Robert Dole.
Richard,
In 1996 you stated the US Taxpayers Party met in San Diego for their convention. In 1996 where and
when did the American Independent Party hold its Convention?
Sincerely, Mark Seidenberg, Vice Chairman, American Independent Party.
I fail to see the State interest involved here. A otherwise qualified candidate tried to get nominated by two parties in a state that allows fusion. He only won on (Green) and thus logially would be on the ballot a sthe nominee for the Greens.
So what is the problem? He is not cluttering the ballot or confusing voters? He will just be on the ballot as a green instead of a green-democrat?
Am I missing something here?
The exact quote in the May 3, 1996 BAN is “The U.S. Taxpayers Party would like to nominate Pat Buchanan for president”, which is not the same thing as attempting to nominate him. Buchanan never indicated that he wanted the nomination.
The American Independent Party in 1996 held a California state convention, of course, but I don’t know what city it was held in.
etjb writes
In my opinion, the problem is that the staff of the South Carolina Election Commission believes that fusion itself is a bad idea, and since they have not been able to persuade the state legislature to dispense with it they are attempting to do so by bureaucratic means.
I have been told face-to-face by a staff member at the Election Commission that he doesn’t support “this fusion stuff”. He offered that as a personal opinion, but now he and the director have taken it beyond personal opinion and made it state policy in direct conflict with the state legislature, which has left fusion as state law despite attempts in several recent legislative sessions to do away with it.
#3: “Under the California blanket primary, parties were involuntarily subjected to the possibility that non-party affiliates would choose the party’s nominees.”
The same is true of the state-mandated open primary, in which a party’s ballot is available to ANY voter. That’s why I predict that, when a case involving the state-mandated open primary reaches the US Supreme Court, the court will strike it down.
I doubt that Eugene Platt entered the Democratic primary expecting to lose (of course, he may have already been contemplating the current lawsuit in the event that he did lose and was excluded from the general election ballot).
“… simply let any individual who wishes to run in an election in which the entire electorate may vote…”
This describes general elections. Any individual who chooses not to run under a party label may file for the general election as an independent (in a few places, of course, a loser of a party nomination may then qualify as an independent). In the “top two,” all candidates might just as well be independents.
Howard Phillips also tried to persuade Senator Bob Smith (R-NH) to seek the USTP/Constitution Party’s presidential nomination.
#6 From the perspective of the court in the Texas case, it does not appear that there was any distinction between actual nomination, and wanting to nominate. And Howard Phillips wanted to nominate Buchanan, and the USTP nominated the Phillips after Buchanan declined to be nominated.
I don’t believe that the distinction warrants characterizing the brief by State of South Carolina as being in error.
#5 In a State with a sore loser law and no fusion, the loser of a primary is prevented from contesting the general election as a candidate of another party or as an independent. Some States even prevent a candidate running as a write-in candidate in such a case.
So why should fusion make any difference? The State’s rationale is to prevent factionalism and encourage majority results.
#8 Eugene Platt did not file for the Green Party nomination until the day of its convention, and about two months after the date he declared for the Democratic Party nomination and the deadline in State law. This precluded the Democratic Party from considering whether they wanted to be coerced into involuntary political association with the Green Party through a fusion candidacy by Platt. There is also the issue of Platt’s loyalty pledge to the Democratic Party.
The Top 2 proposition in California characterizes the primary election as an “open primary” and the general election as an “open general” election.
“The Top 2 proposition in California characterizes the primary election as an “open primary†and the general election as an “open general†election.”
I don’t consider an general election with two, exactly two, and only two choices on the ballot to be an “open general”.
“So why should fusion make any difference? The State’s rationale is to prevent factionalism and encourage majority results.”
Because there is no “factionalism” being prevented in this case. If Platt won the Green nomination and didn’t seek the Democratic nomination, then he would have been on the ballot anyway.
“This precluded the Democratic Party from considering whether they wanted to be coerced into involuntary political association with the Green Party through a fusion candidacy by Platt.”
The Democratic Party could not be “coerced” into supporting a fusion candidacy. If it is the will of the voters to nominate Platt through a Democratic Party primary or convention, then the voters have spoken. I thought that you were rather skeptical about the rights of “political gangs” compared to those of the voters.
Long-standing provisions of election law seem to be just fine until the Greens decide to use them. When Greens try to use slating just like the Democrats and Republicans do in Illinois, then they are engaged in some plot to thwart The People from voting in the primary. When Greens to try win multiple party nominations under fusion just like Democrats and Republicans have been doing for decades, they are trying to “coerce” the other party into associating with them.
Suppose incumbent Rep. John Spratt (D-SC) decided to go for the Working Families Party nomination in the 5th Congressional District after winning the Democratic nomination. Somehow I really, really doubt that he would be taken off the ballot if the Green Party candidate won the WFP nomination instead.
#12 Under the Top 2 election proposition, both the primary and general election would be open to all voters regardless of their party affiliation, or lack thereof; and all candidates who qualified would appear on the ballot for each election, regardless of party affiliation. In the case of the primary, the signature requirements are quite modest; for the general election, candidates qualify by finishing in the top 2 in the primary.
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Platt could appeal to Democrats who had voted for him in the primary to vote for him in the general election, and perhaps encourage voters to vote for McKinney rather than Obama.
If Platt had not sought the Democratic nomination, then the voters would likely have ignored him completely.
It of course does not matter if this would happen in the particular instance of Eugene Platt for it to be a rationale that courts have found to be a legitimate basis for State law.
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If Eugene Platt had won the nomination of both the Green and Democratic parties, then voters might equate the two parties. This may or may not be something that the Democratic Party would want to happen. If Eugene Platt had told the party: “I’m going to seek the nomination of the Green Parry, and since it will be a convention, it is an almost sure deal; and if I don’t get the Democratic nomination, I’m going to do everything in my power to capture voters, contributions, party staffers for the general election”, the Democratic Party might have denied him a place on their ballot, and told him to go away, we don’t want this sort of political association.
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Green Party activists appear have a fantasy that the the change in Illinois was directed at them. When someone explains the neutral rationale for the change, they are deluded into believing that he is doing so only in an effort to destroy the Green Party and that he has always favored slating by the Democratic and Party.
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I seriously that the Working Families Party would make an independent nomination in such a case. Remember, the WFP had also nominated Platt, and don’t appear to be the least bit concerned that their nomination was cancelled after he didn’t get the Democratic nomination.
#11: “The Top 2 proposition in California characterizes the [first round] as an ‘open primary’…”
In 2004, a state judge in California prohibited the “top two” from being called an “open primary” in the voter’s guide. The “top two” (Prop. 62) lost in 51 of the state’s 58 counties.
If memory serves, the Oregon Supreme Court in 2008 forbade M65 from being called an “open primary.” Nearly 66% of the voters said “no” as the “top two” monstrosity lost in all of the state’s counties.
#13: “If Eugene Platt had won the nomination of both the Green and Democratic parties, then voters might equate the two parties.”
On at least one occasion, Sen. Al D’Amato had the nominations of the Republican, the Conservative, AND the Right to Life parties. Do you think that New Yorkers equated those three parties?
This year, Mayor Bloomberg, a registered independent, had the nominations of both the Republican and the Independence parties. Did voters equate those two parties?
You’re not saying that New Yorkers are smarter than South Carolinians, are you?
#14/11: The amendment itself says it is an Open Primary:
“First– This measure shall be known and may be cited as the “Top Two Candidates Open Primary Act.”
Second– The People of the State of California hereby find and declare all of the following:
(a) Purpose. The Top Two Candidates Open Primary Act is hereby adopted by the People of California to protect and preserve the right of every Californian to vote for the candidate of his or her choice.”
In 2004 voters may have been confused by Prop 60 which the legislature had proposed.
#14/13
Probably tied.
It would have been up to each of the parties whether D’Amato could seek multiple nominations. If a party declined, then D’Amato could choose between the parties. It doesn’t matter whether or not the parties were acting rationally or in their ultimate best interest.
And remember that Eugene Platt had signed a loyalty oath to not run if he failed to get the Democratic nomination.
I think in New York, “independents” are classified as blanks. As in Mayor Bloomberg is a registered blank”.