Mississippi Democrats' Lawsuit: A Commentary

[Mississippi Democratic Party v. Barbour challenges the state's primary-election law. This commentary was written on March 23, 2006, and the footnote was added on March 26, after Gov. Haley Barbour revealed the Republican Party's plans for its own primaries.]

There were some inaccuracies in Sid Salter's column of March 19 in The Clarion-Ledger ("Dem Party lawsuit is a boon to the GOP").

The Mississippi Democrats' lawsuit is, in my view, constitutionally correct but politically dumb. Citizens become understandably angry when they perceive that someone is trying to reduce their voting choices. It's never smart for a politician or political party to make the voters mad.

The timing of this suit makes many people suspicious: It was filed on February 10 but not made public until March 1, the filing deadline for candidates. And it seeks a preliminary injunction to stop the state from using our current primary system in the June 6 primaries. If an injunction is granted, the best way to implement it would seem to be delaying the primaries.

But I think we should look to the long-term ramifications of this suit.

Our present law requires political parties to: first, use a primary election to nominate their candidates-- which is OK-- and secondly, provide their primary ballot to any registered voter who requests it-- which is constitutionally doubtful.

Salter says the Democrats' "lawsuit [seeks] to close the state's open primaries."

Actually, the suit asks the court to declare the present law unconstitutional. This would give each major party the right to decide who is eligible to participate in its primary-- its candidate selection process. Voter registration by party is the best way for the parties to identify the voters whom they wish to invite into their primaries.

Salter: The Democrats are trying "to force... closed primaries."

The Democrats have, in fact, said that they intend to limit who can vote in their primaries. But the Republicans will still be free to conduct their primaries as they see fit.

Thus, if the present law is struck down: THE TWO MAJOR PARTIES AND, TO A LESSER EXTENT, THE STATE LEGISLATURE WILL DETERMINE WHAT THE VOTERS' CHOICES WILL BE.

If we have party registration: Each party will even have the right to invite registered members of the other party to vote in its primaries-- which the Democrats obviously won't do. And despite what Republican leaders are now saying, I don't believe they will invite Democrats to vote in GOP primaries.****

What about registered independents? I believe the Republicans will invite independents to vote in their primaries. And don't dismiss the possibility that the Democrats will do likewise-- especially if they catch enough heat from the voters! By inviting independents, the Republicans will put pressure on the Democrats to follow suit.

So if both parties open their primaries to registered independents: AN INDEPENDENT WILL HAVE THE SAME CHOICES ON PRIMARY DAY AS ALL VOTERS NOW HAVE.

Of course, in many of our counties, all or most of the candidates for county offices now run in the Democratic primary. If the Democrats refuse to let independents vote in their primaries, many voters who otherwise wouldn't register as Democrats might do so-- in order to be able to vote for their sheriff, supervisor, etc. This is probably the Democrats' strongest incentive to limit their primaries to Democrats only. We'll just have to wait and see what develops. [Gov. Barbour's statement removed this as a potential issue, since a registered Democrat would be able to vote in either the Democratic or the Republican primary.]

It will be up to the legislature to enact party registration and to establish deadlines for such things as a voter changing his party affiliation. Some states even have "same-day" registration, whereby a citizen can register and vote on election day. (Remember that any changes in our election laws must be pre-cleared under the Voting Rights Act.)

Salter: The Democrats winning this suit "will drive moderate white crossover voters who routinely vote Democratic in local and [district] elections to register with the GOP in order to vote in national elections."

That may be possible, but given the options that I've discussed above, it's not very likely.

Salter: "Closing the primaries will force middle-of-the-road voters to choose their party registration and confront local elections based on national party issues."

Again, that depends on how "closed" our primaries wind up being-- and especially whether the Democrats join the Republicans in inviting registered independents to vote in their primaries.

This lawsuit has the potential to precipitate a significant ruling from the U. S. Supreme Court. I, for one, will be watching it every step of the way.

**** At the end of an interview on page 2G of The Clarion-Ledger of March 26, 2006, Gov. Haley Barbour says:

"Party registration is OK with me, but Republicans will not close our primaries. Anyone is welcome to vote in our primaries, regardless of party affiliation, and that won't change if the state adopts party registration. Ours has been and will continue to be 'the party of the open door.'

"If the Democratic Party wants to close its primaries, that is its business, but it won't affect us."

I am amazed, but I'll take the governor at his word. Aside from being a disincentive for voters to register as Republicans, this will mean that a registered Democrat will have the same choices on primary day as ALL voters now have.

This will also put even greater pressure on the Democrats to invite registered independents into their primaries. In terms of the voters' choices, that's the only question that remains.

To put it another way: If the Democrats invite independents into their primaries, the only voters who will have fewer choices than they have today will be registered Republicans.

If the court does grant the Democrats an injunction for their June 6 primary, here's another way that it might be implemented: Anyone who has voted in a Republican primary within a certain period of time would be required to sign an oath of affiliation in order to vote in the June 6 Democratic primary.