On September 28, the South Carolina Green Party filed this brief in the U.S. Court of Appeals, 4th circuit. The case is South Carolina Green Party v South Carolina State Election Commission, 09-1915. The state’s brief is due on October 30.
The issue is whether a state can provide that if a candidate seeks the nomination of two parties, wins the first nomination, but then loses the fight for the second party’s nomination, whether the state can then nullify the first party’s nomination and leave it without any nominee for that particular office. This issue has not come up before in any other state. Most states don’t permit fusion. And among the states that do permit it, none of the other fusion states have ever had a law like the South Carolina law at issue.
The fundamental problem is that including partisan nominating activities within the states election scheme is inherently inimical to the 1st Amendment. The court should order South Carolina to use Top 2.
That is not a logical statement, Jim. The only way that the state could do that and have it make sense, and be constitutional, would be if it made all offices non-partisan. Even then, it would have to make exceptions for presidential and vice-presidential elections. One state can not dictate to the federal government on how to hold its elections.
Under a Top 2 system as used in Washington state, and as provided for in California, Mr. Platt would have been free to express his preference for the Democratic Party, and the various party organizations would have been free to support him in whatever way they thought suitable. Everyone’s 1st and 14th Amendment rights are protected, and the political racketeering is eliminated.
There would not have to be an exception for presidential and vice presidential elections. The Constitution only provides for presidential elections to be conducted from the point at which the electors are appointed in their respective States.
Congress may set the time for that appointment and no more. Prior to 1845, the time of appointment was a period of roughly a month prior to the meeting date for the electors. States that used popular elections to appoint their electors typically held the election early in the period, so they had time to ascertain the results, inform the electors that they had been chosen, and give them time to travel to the meeting of electors in their State.
But in South Carolina, the electors were appointed by the legislature, and they were chosen towards the end of the period set by Congress, because that was when the legislature met in regular session.
In 1845, when Congress set the uniform “election date” for appointing presidential electors, they chose a date early in November. There was some discussion in Congress about making an exception for a State where the legislature appointed the electors (at that time, only South Carolina did). There was concern that Congress was dictating how one State might appoint its electors, since South Carolina would be forced to either switch to popular election or to hold a special session of its legislature. And Congress had already agreed to an exception for States that required majority election (this exception still exists). But ultimately, they set the single date (first Tuesday after first Monday in November (or 29 days before the first Wednesday in December) and South Carolina arranged for an earlier legislative session.
So South Carolina could hold a Top 2 election for presidential electors, perhaps in January or September, to determine the Top 2 elector slates that would appear on November ballot (running under the name of the Presidential and Vice Presidential candidate that they supported).
Or they could hold the primary in November and hold a runoff if no electors had a majority.
They could do that, but that wouldn’t do anything to shake up SC politics, so why bother?
Are you one of those ‘back to the Articles of Confederation’ folks Jim? You seem to dislike political parties as such.
#1: “… including partisan nominating activities within the states election scheme is inherently inimical to the 1st Amendment.”
That’s certainly not what the federal courts have said on that subject.
This is a case involving fusion, and you’re saying the court should order South Carolina to ditch party primaries in favor of your beloved “top two.” That would be quite a contortion on the court’s part.
In the California and Washington state blanket primary cases, e. g., the courts ruled the state-mandated blanket primary unconstitutional, but they did NOT presume to tell those states what system they should use instead.
It’s strange that only two states– Louisiana and Washington state– use the “top two” to elect all of their state officials (and only Washington uses it for its congressional elections), since the “top two” is obviously good for what ails you– indigestion, arthritis, bunions, hemorrhoids…
#5 Not in so many words. But Justice Scalia in Jones noted that if California would adopt Top 2 the conflict would be eliminated.
The case in South Carolina comes about because the State and the Democratic party have commingled their activities. In Idaho, the Republican party is arguing that the only way its 1st Amendment rights can be preserved is if the State of Idaho maintains dossiers on the political beliefs and activities of its citizens.
#6: Scalia’s “nonpartisan blanket primary” in the 2000 Jones blanket primary ruling was collateral narrative.
Significantly, in the 2008 “top two” case from Washington state, Scalia opposed the “top two.”
In the South Carolina case, Eugene Platt and the Green Party are challenging the state law, not the Democratic Party.
29 states and the District of Columbia now register voters by party; this is usually done by including a “party preference” box on the voter registration form, and the voter may register as an independent. Also, some 12 other states– including your state of Texas– have open primaries in which each voter’s choice of party is publicly recorded.
It’s preposterous to refer to either situation as the state maintaining “dossiers” on its citizens.
You previously told me that you’ve never contacted any Texas legislators about the wondrous “top two.” I suggest that you take a little break from arguing with me on this site and tell at least one state lawmaker about the glories of the “top two.”
In the South Carolina case, Eugene Platt is suing the Charleston County Democratic Party because it sought and received an injunction against him running for office as the nominee of the Green and Working Family parties. There is a link to Platt’s brief in the initial posting.
It is yet another example of where state-sponsored partisan primaries places the State in the middle of conflict between political parties and candidates.
Scalia pinpointed what the source of conflict was – that when States give political parties a formal role in election of the State’s officers, they interfere with the 1st Amendment rights of political parties, candidates, and voters. Read the opinion in Lopez Torres.
Party registration is hardly a voluntary action if one is prevented from voting effectively if they don’t, or may be subject to public ridicule if they do.