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Free Citizen

This writer espouses individual liberty, free markets, and limited government.

Name:
Location: Jackson, Mississippi, United States

Tuesday, September 20, 2005

Should Mississippi Change Its Primary Voting System?

This essay was originally written on February 19, 2001 and was previously updated on September 14, 2002 and August 25, 2004.

All of us Mississippians want the best for our state. I'm glad that we live in a place where people of good will are free to exchange ideas on matters of public interest.

This article is the product of years of observation, study, and thought. There are several reasons why I have chosen to publish it at this time.

First, the U. S. Supreme Court recently issued several rulings on this subject.

Next, I want to shed some light on a topic that tends to be confusing and complicated.

And last, I want to put this essay into the public domain at a point when this is not a burning issue.

Introduction. We elect our state and county officials at the same time, and this is usually when many of our citizens clamor for an "open primary." Generally speaking, this means letting voters cross party lines from office to office, starting with the first round of voting.

Beginning in the 1960s, this referred specifically to the system now used by Louisiana; in 1999, Nick Walters, Republican nominee for secretary of state, proposed a system which he also called an "open primary."

Most of the good people who favor this idea don't seem to be too concerned about the details of it. But anyone who really digs into it will find that the devil is truly in the details.

One of the statements often made by backers of an "open primary" is, "We vote for the man, not the party." This seems to imply that everyone else is a down-the-line voter for one party.

For the record, I am an independent-minded Republican who has voted for Democrats for many local offices and some state offices. I have also voted for third-party and independent candidates. So, as an individual citizen, I do not believe in strict party loyalty.

However, I do believe that a party official, or anyone who runs for office under a party label is honor-bound to support all of his party's candidates. After all, members of the General Motors board of directors don't drive Ford cars.

History. One of the basic functions of a political party is nominating candidates for elective office. Early on, this was done by caucuses, and later it was also done by conventions.

In the early 1900s, states began requiring parties to use primary elections. The concept was to give all party members the opportunity to participate directly in choosing their party's candidates. (Webster's New Collegiate Dictionary defines "primary election" as "[a] preliminary election in which voters directly nominate for office the candidates of their own party" [italics added].)

Project Vote Smart says a primary election is "an election prior to the general election in which voters select the candidates who will run on each party's ticket. Primaries are also used to choose convention delegates and party leaders... ."

Mississippi started using the party primary statewide in 1903. Today, only a few states still use nominating conventions; these states use conventions in some circumstances and primaries in others.

Through most of the 20th century, "Republican" was a cuss word in most of the South, including Mississippi. All serious candidates ran in the Democratic primary-- whether they were loyal Democrats or not-- because that was where Mississippi elections were decided.

The oft-repeated phrase was, "The Democratic nomination is tantamount to election."

Of course, no one was actually elected until the November general election. But since the Democratic nominee for each office was the only (or the only serious) candidate on the November ballot, everyone knew in August who the winners would be.

Very few people even bothered to vote in these Soviet-style general elections (November 1959 governor's election: 57,671 total votes).

So our state had a long history of deciding its elections through a two-step process-- the Democratic primary and the Democratic runoff.

Then, in 1963, Rubel Phillips broke the mold by running for governor as a Republican. The Democratic nominee, Paul Johnson Jr., now faced a third campaign, and he expressed resentment that Phillips only had to campaign in the fall. (Johnson's billboards showed an elephant, belly-up, with the slogan, "Bury GOP Scalawags for Another 100 Years!")

As a reaction to the '63 campaign, the idea of a so-called "open primary" was introduced. This would abolish the party primary and force all candidates to run in the same election. And it would return our elections to the two-step process that the candidates and voters had been accustomed to.

Apparently, it was assumed that there would never be more than one Republican running for the same office.

This "open primary" has been passed a total of five times by the Mississippi legislature.

In 1966, Governor Johnson surprised many when he vetoed it.

In 1971, a three-judge federal panel headed by circuit Judge Charles Clark blocked implementation of the "open primary" (Evers v. State Board of Election Commissioners 327 F.Supp. 640).

In 1975, Governor Bill Waller vetoed it.

In 1976 and 1979, the "open primary" was rejected by the U. S. Department of Justice under the Voting Rights Act. On at least one of these occasions, the reason given was Mississippi's history of black independent candidates. (Except for our statewide constitutional offices, it is possible to win a general election, outright, with less than 50 percent of the vote. The "open primary," in contrast, requires more than 50 percent.)

In the 1971-72 Louisiana governor's race, the Democrat Edwin Edwards had a complaint similar to that of our Governor Johnson in 1963: While Edwards had to endure three campaigns, his Republican opponent only had token primary opposition.

Governor Edwards copied Mississippi's "open primary" concept and got it through his legislature. In 1975, the Justice Department approved it for Louisiana's state and local elections. In 1978, the state began also using it for congressional elections.

NOTE: In November 2004, California and Washington state had initiatives on the general election ballot for a system similar to Louisiana's. California voters defeated it, while the Washington measure got some 60 percent of the vote. For more on these elections, click here.

Party Runoff Primary (often called the "second primary"). Mississippi was first to adopt this device, which makes our elections more complex. Just 10 states now have runoff primaries-- Kentucky, Oklahoma, and eight of the 11 former Confederate states (Tennessee does not have runoffs; Florida eliminated runoffs in 2002; and Virginia abolished them circa 1970). NOTE: 8/04/2007-- Louisiana is restoring party primaries for its congressional elections, starting in 2008. Those congressional primaries will include runoffs if needed.

Of course, if we had not had runoff primaries, Mississippi's political history would be quite different-- as the primary leader has frequently lost the runoff.

The big majority of the states use a two-step process-- primary day and general election day. On primary day, each party holds a primary to nominate its candidates. There is no runoff, and there have been instances of candidates winning party primaries with less than 20 percent of the vote. (Tennessee: Al Gore won the 1976 Democratic primary for the U. S. House with 35.7 percent. Gore had a cakewalk in the general election, as there was no Republican running. 1994: Bill Frist won the Republican primary for U. S. senator with 44.4 percent.)

Blanket Primary (California, Washington, and Alaska). All candidates of all parties are listed on the same ballot. Thus the primary voter may cross party lines from office to office. There is no runoff, and the top vote-getter from each party advances to the general election, where any independent candidates are also on the ballot.

California first used its blanket primary in 1998, after enacting it through a ballot initiative (this, in my opinion, is a good example of why the Founding Fathers were so distrustful of direct democracy).

This primary system is similar to letting Methodists and agnostics pick the pastor of the Baptist church.

On June 26, 2000, the U. S. Supreme Court struck down California's state-mandated blanket primary.

The vote was 7-2, with two of the most liberal justices, John Paul Stevens and Ruth Bader Ginsburg, favoring the blanket primary. The majority opinion, on the other hand, was written by one of the most conservative justices, Antonin Scalia. The ruling was based on the First Amendment freedom of association. A political party has the right to have its candidates-- its standard-bearers-- chosen by its own members.

As I read Justice Scalia's opinion, several statements jumped out at me. "Representative democracy... is unimaginable without the ability of citizens to band together in promoting among the [voters] candidates who espouse their political views."

The blanket primary's "... avowed purpose--is to reduce the scope of choice, by assuring a range of candidates who are all more 'centrist.'"

Justice Anthony Kennedy wrote, "The true purpose of this law... is to force a political party to accept a candidate it may not want and, by so doing, to change the party's doctrinal position on major issues."

This decision also nullifies Nick Walters's proposal, which was a blanket primary with a runoff. This runoff feature would create even more pitfalls.

Justice Scalia's complete opinion is available here.

Click here for Justice Kennedy's concurring opinion.

Click here for Justice Stevens's dissent.

A summary of the ruling is here.

NOTE: On September 15, 2003, the Ninth U. S. Circuit Court of Appeals struck down Washington state's 68-year-old blanket primary. On February 23, 2004, the U. S. Supreme Court refused to hear the state's appeal (Reed v. Washington State Democratic Party).

UPDATE-- 8/04/2007: Alaska's Democrats now list all of their candidates on the same primary ballot with the minor parties. That state's Republicans, however, have their own separate primary ballot.

Current Mississippi System (now 22 states, including Washington state). The parties hold separate primaries, and each voter selects the one in which he wishes to participate.

None of these states except Iowa have voter registration by party.

You may be wondering what this system is called. Are you sitting down? Have you taken your blood-pressure medication?

IT'S CALLED THE "OPEN PRIMARY"!!!

It's sort of ironic, isn't it? Mississippians have been calling for an "open primary" all these years, and it turns out that we've had one all along. (If your copy of this essay includes cartoons, these cartoons are referring to the current Mississippi system.)

The open primaries that we heard so much about during the 2000 presidential primaries were similar to Mississippi's current system.

The Michigan Republican primary got a lot of publicity. Normally, the voter picks one primary or the other. But the state's Democrats were not holding a primary, so all voters were free to participate in the Republican primary. Despite losing (66% to 29%) among Republican voters, Senator John McCain won the Republican primary on the strength of Democratic and independent votes. (This was determined through exit polls, whereby voters in key precincts are interviewed as they leave the polling places.) Governor John Engler, a supporter of Governor George W. Bush, commented that McCain had "rented Democrats." (NOTE: In that 2000 Michigan Republican primary, 48 percent of the voters were Republicans, 35 percent were independents, and 17 percent were Democrats.)

Suits Against Open Primary Laws. These challenges have been largely based on the U. S. Supreme Court's reasoning in the blanket primary case, California Democratic Party v. Jones. In December 2007, in a suit-- Miller v. Cunningham-- brought by a local unit of the Virginia Republican Party, the 4th U. S. Circuit Court of Appeals held that there is a circumstance in which a state cannot require an open primary (this case was originally called Miller v. Brown). The deadline has passed with no appeal being filed to the U. S. Supreme Court.

On April 11, 2008, Idaho Republican Party v. Ysursa was filed in U. S. district court. This suit challenges the Gem State's open primary law.

On May 28, 2008, the 5th U. S. Circuit Court of Appeals in New Orleans reversed the district court, which had held Mississippi's open primary law to be unconstitutional. The 5th circuit dismissed the suit on procedural grounds (Mississippi Democratic Party v. Barbour, 07-60667). Good commentary on this case is at Yall Politics.

The other systems still available are the closed primary, the Louisiana system, and the modified Louisiana system.

Closed Primary (now 27 states, including California). All of these states have voter registration by party.

In a true closed primary: Only members of a particular party may vote in that party's primary, and independents may vote only in the general election. However, each party has the power to invite independents to vote in its primary (unless state law forbids it, each party also has the power to invite members of opposing parties to vote in its primary).

In my view, this system is the next best to Mississippi's current system-- because it maintains party primaries.

NOTE: The processes used by two states in this category deserve mention. In Utah, the Democrats invite all voters-- even registered Republicans-- to vote in their primaries. In Alaska, as noted above, the Democrats and the minor parties list all of their candidates on a single primary ballot. In both states, the Republicans have their own separate primary.

Louisiana System (the Creature from the Bayou). I should probably call it the "Creature from the Big Muddy," since our neighbors borrowed it from us. All candidates, including independents, run in the same election; if no one gets a majority (50-plus percent), the top two, regardless of party, meet in a runoff.

Actually, this is not a "primary" at all. Rather, it is a general election with a runoff.

This is like our elections for state and county judges and county election commissioners. It's also like the special elections that we hold to fill vacancies in offices (please note that we don't call any of these elections "primaries").

This system takes away the parties' ability to officially nominate candidates. A party may support a candidate, of course-- but that doesn't stop other candidates of the same party from running.

It's possible, to be sure, for the two runoff candidates to be from the same party. Suppose two teams from the same conference played each other in the Super Bowl. What if the two World Series teams were both from the same league?

In Louisiana, there is often a runoff, which means the final choice is between two candidates. In Mississippi's November 2003 governor's election, in contrast, we had five candidates. There is potentially an even greater choice here, as Mississippi has eight qualified parties: Democratic, Republican, Libertarian, Constitution, Green, Reform, Natural Law, and America First. And there is no limit on the number of independents who can run.

How has this system worked in Louisiana?

1987 governor's race: The top two vote-getters were both Democrats, Congressman Buddy Roemer and Governor Edwin Edwards. Edwards, knowing that he would lose a runoff, then dropped out. Under Louisiana law, Roemer became governor after getting just 33 percent of the vote.

The 1991 governor's race was an even bigger free-for-all than usual. Gov. Roemer was running again, having switched to the Republicans in March, 1991.

Also running was the legendary David Duke, ex-Grand Dragon of the Ku Klux Klowns and self-appointed Savior of the White Race.

Since Duke couldn't get any Louisiana blacks to endorse him, he bused James Meredith in from Mississippi.

Duke had run for president in 1988, first as a Democrat and then as the nominee of the Populist Party.

In 1989, Duke switched to the Republicans, and despite being denounced by the first President Bush, narrowly won a special election for state representative.

In 1990, Duke got 44 percent against U. S. senator Bennett Johnston.

In the 1991 governor's race, President Bush and the national Republicans endorsed Roemer, while the state Republican Party backed Congressman Clyde Holloway. Roemer finished third and Holloway fourth.

The runoff was between ex-Governor Edwards, who had already been tried for bribery, and Duke. A crook versus a sheet-head!

Edwards, a notorious womanizer, remarked that he and Duke were both "wizards under the sheets."

A popular bumpersticker read, "Vote for the Crook: It's Important".

In response to NBC's Tim Russert, the Caucasian Messiah was unable to name Louisiana's top three industries.

President Bush and the Republican Roemer endorsed the Democrat Edwards over the Republican Duke. With the eyes of the nation on them, many Louisianans held their noses and voted for Edwards, who won with 61 percent (having served four terms in the governor's house, Edwards went on to serve one term in the Big House-- and so did Duke. The five words most feared by a Louisiana politician: "Will the defendant please rise").

The Enterprise-Journal of McComb (MS) has correctly observed that this system "... lends itself toward candidates who reside on the political extremes."

1995 governor's race: It seemed certain that two Republicans, state Senator Mike Foster and ex-Governor Roemer, would meet in the runoff. But Roemer faded near the end and finished fourth; the runoff candidates were Foster, a white conservative Republican, and Congressman Cleo Fields, a black liberal Democrat. Foster won in a landslide.

Foster, age 65 and a lifelong Democrat, switched to the Republicans in September and was elected governor a month or so later. Sort of like joining the church one Sunday and then getting elected chairman of the board of deacons the next Sunday.

2002 U. S. Senate race: The national Republicans supported Suzanne Terrell, while Governor Foster backed another Republican. Foster publicly criticized Terrell after she had made the runoff against the incumbent Democrat, Mary Landrieu, who was re-elected (in November 2004, David Vitter became Louisiana's first popularly-elected Republican U. S. senator in history).

NOTE: Louisiana, which alone has used this system for its congressional elections, is the only state that uses it to elect all of its state officials. Starting in 2008, however, the state is restoring party primaries for its congressional elections.

Modified Louisiana System (zero states). Justice Scalia: "... the State determines what qualifications it requires for a candidate to have a place on the [general election] ballot-- which may include nomination by established parties... [T]he top two vote getters (or however many the State prescribes) then move on to the [runoff]."

This passes muster with the First Amendment because "... voters are not choosing a party's nominee."

This allows for several variations on the Louisiana system. State law may require that the parties use conventions, caucuses, and/or some other method(s) to nominate candidates. This would enable each party to unite behind one candidate for each office in the general election, but it still wouldn't guarantee that a party's candidate would make the runoff.

Instead of having the top two finishers advance to the runoff, the law may specify that it be the top three, the top four, etc. Regardless of the number, it could be any combination of Republicans, Democrats, independents, and/or minor-party candidates. (If the state mandated that the parties nominate candidates, each party could have only one candidate on the general election ballot. Thus, it would be impossible for more than one candidate from the same party to reach the runoff.)

The most glaring defect in this system, as I see it, is the absence of party primaries. Even if some other method of nomination were used, far fewer people would be choosing the parties' candidates.

UPDATE-- 8/04/2007: The U. S. Supreme Court will hear oral arguments in State v. Republican Party of Washington State next October 1. This case involves that state's voter-approved "top two" system, which is similar to the Louisiana system. I predict that Washington will ultimately have some version of the "top two."

Conclusion. Over the years, the "open primary" issue has made great fodder for talk radio, panel discussions on ETV, and letters to the editor. Besides this being a really bad idea, though, its chances of getting adopted for state and congressional elections are practically zero.

We Mississippians should be looking to the day when both major parties have primary contests for every partisan office.

Let's devote our time and energy toward making that a reality.

******************************

Click here for an essay from Fair Vote on the Louisiana system and other voting systems.

Click here for my essay on the "top two"/"open primary" and more on the various types of party primaries.

Click here for an Oregon website on a Louisiana-style election system.

Click here for an excellent article on the "top two"/"open primary."

Click here for the column that George Will wrote on the eve of the U. S. Supreme Court's 2000 ruling in the California blanket primary case.

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