Why the Mississippi Democrats' Lawsuit Will Likely Win

California's blanket primary: All candidates of all parties were listed on the same ballot, and the top vote-getter from each party advanced to the general election. Thus, the voter could vote for a candidate of one party for one office, and a candidate of another party for another office.

Open primary: The party's primary ballot is available to any voter who requests it. Each voter, of course, may participate in only one party's primary.

Semi-closed primary: Some non-members are allowed to vote in a party's primary and others are excluded. In practice, it is independents who are allowed and members of opposing parties who are excluded.

In almost every state, the two major parties have the same type of primary-- though there are several exceptions to this. ~~SteveR

George Will's column of April 29, 2000:

WASHINGTON-- The U. S. Supreme Court last week heard arguments in a case [California Democratic Party v. Jones] that, if correctly decided, will strengthen First Amendment freedoms of speech and association and demonstrate that much of John McCain's strength in the primaries was made possible by state election laws inimical to those freedoms.

The question at issue is whether California's "blanket" primary abridges the freedom of individuals to associate in political parties that serve as their right to express their chosen philosophies.

In closed primaries, only registered members of a party can vote.

In open primaries, any registered voter can get any party's ballot.

In blanket primaries, no party has its own [separate] ballot or primary.

[Note: As you might imagine, I prefer my definitions (at the top of the page) to Mr. Will's. It's possible for only one major party in a state to have an open primary, as in Utah. And it's indeed possible, as in Alaska, for one major party to have its own separate primary ballot, while the other major party joins in a blanket primary ballot with one or more other parties.]

On a "blanket" ballot, voters can choose among all parties' candidates for each office. All candidates of all parties for a particular office are listed together under that office.

The Republican who gets the most votes among Republican candidates gets the party's line on the general election ballot, and so with candidates of all other parties. (California treats only presidential primaries differently: ballots are coded, and only votes of registered party members count in the allocation of national convention delegates.)

Californians want the blanket primary: They established it by initiative with 60 percent of their votes [in March 1996].

However, constitutionalism limits the wants that are permissible. As the Supreme Court has said, the purpose of the Bill of Rights is to put some things "beyond the reach of majorities"-- things like First Amendment freedoms.

Four California parties-- Democratic, Republican, Libertarian, and Peace and Freedom-- last week told the court that the blanket primary annihilates their freedom to associate for the expressive purpose of advocating their political philosophies.

It does so by stripping party members of control of the selection of their candidates and hence of their message.

In a blanket primary, a party's nomination can be won by a candidate other than the one who gets a majority of the party members' votes.

The court has said states can require parties to select candidates by primaries but do not have carte blanche to dictate the nature of the primaries (italics added). [Note: Actually, no federal court has ever said that states may require parties to nominate by primary.]

Proponents of blanket primaries say that by enabling lightly committed, barely partisan voters to opt for any candidate, they produce more "moderate," less ideological nominees.

Opponents say that even if it were (which it is not) obviously good to blur the philosophical clarity and dampen the ideological warmth of parties, government has no right to break parties to the saddle of such a state-imposed orthodoxy-- to mandate a primary the purpose of which is to change the nature of the parties' speech.

Proponents say that by multiplying choices, blanket primaries increase voter participation.

Indeed, California's assistant attorney general defended the blanket primary by asserting: "The more people you have voting, the more representative the candidates are going to be."

The court might flinch from ruling against blanket primaries because such a decision would have serious implications for the 21 states that have open primaries (italics added). It should not flinch.

If a blanket primary is (as the lawyer for California's Democratic Party says) "a free-love nominating system where (voters) go from party to party and no one has to declare any fidelity," an open primary is comparable (italics added).

For many voters, such as many Democrats and independents who gave McCain victories in New Hampshire's and Michigan's open Republican primaries, open primaries are one-night stands. [Note: New Hampshire actually has semi-closed primaries: there is voter registration by party, and independents may vote in either the Republican or the Democratic primary. Democrats and Republicans, however, must stick with their own parties.]

But blanket and open primaries force party members to associate with persons indifferent or hostile to the aims that party members join together in order to advocate (italics added).

Whatever can be said in support of California's desire to pump up the turnout in primaries, that desire cannot trump First Amendment freedoms.

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

On June 26, 2000, by a vote of 7 to 2, the U. S. Supreme Court struck down California's blanket primary law. It is on this ruling that subsequent federal lawsuits against state-mandated open primaries have been largely based.

UPDATE (5/31/08): Miller v. Cunningham: In December 2007, in a suit 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 may not 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

Where There's Smoke, You Don't Have To Be

by Ninos Malek
Mises Institute


This past January acting New Jersey Governor Richard J. Codey signed into law a statewide smoking ban in "public" places except for casinos. ABC News's Nightline recently aired a segment on this legislation which is set to go into effect on April 15.

Yet again, the anti-smoking activists want the government to intervene in the economy and the private property (or what should be considered truly private property) of entrepreneurs. One of the women interviewed, a casino supervisor at Trump Plaza, said that smoking caused her asthma and the illnesses of many of her co-workers.

While I sympathize with her and the other employees regarding their health problems, the flaw with her complaint is that she and the other casino employees were not forced to breathe in second-hand smoke. People voluntarily chose to work in those environments and they knew the benefits and the costs when they made the decision to work in the casinos (and if they did not, they could have quit their job soon after they started).

The only two parties that seem to get mentioned in many of these cases are the smokers and the non-smokers. The former argue that it is their right to smoke and the latter argue that it is their right to have clean air. Who seems to be forgotten are the business owners! This misuse of the word "public" is the main cause.

When I ask my friends or students if the government should have the right to tell me whether or not I can smoke a cigar in my own home, they unanimously tell me "No!" But isn't my home where other people come to eat, drink, talk, or watch television a "public" place? Yet, the same people who concede that my home is private property conveniently do not see the connection between my home and my restaurant (or other establishment). Why? Because they say my restaurant is a public place, established for the benefit of my patrons. I hate to disappoint them, but my business is for my benefit. Sure, I understand that I need many loyal customers who love to spend money at my establishment in order to have a thriving business. However, what people and legislators must realize is that my restaurant, bar, or casino is my private property just like my home is my private property. I made this argument in a previous article for Mises.org entitled "Smoking and Property Rights."

Critics of the law argue that it is unfair that the casino lobby was able to get an exemption from the smoking ban for their particular industry. One New Jersey restaurant owner said that his business would suffer because his smoking customers and tourists will spend their money at the casinos instead. While he could be correct, the right course of action is not to ban smoking everywhere. The only moral action for the New Jersey legislature is to respect freedom of association and the private property of entrepreneurs.

You do not have to breathe in any second-hand smoke while you are eating, drinking, socializing, or gambling. You do not have to serve, bartend, or deal cards in a smoke-filled environment to earn a paycheck. Now, if Donald Trump walked out on the streets of Atlantic City and kidnapped you and took you to his Taj Mahal casino and put a gun to your head and said, "Take a deep breath pal while I blow this smoke in your face or I will blow your head off" then fine, you would have a legitimate case against Mr. Trump and that would be an infringement of your rights. But I have never seen or heard that Donald Trump or any other private business owner wrestle customers or prospective employees onto their private property!

The bottom line is that if you are a smoker, you do not have a right to smoke in my house nor in my place of business. If you want to smoke at a restaurant, bar, strip club, or casino, open your own. If you can't, stay home.

And if you are a nonsmoker, you do not have a right to a smoke-free environment in my house or in my place of business. If you want a smoke-free restaurant, bar, strip club, or casino, then open up your own darn place. If you can't, then stay home.

When people drop their arrogant and self-righteous attitude and realize that it is not a right to work for somebody else or that it is not a right to enter into somebody else's establishment, and when people learn the difference between the words "public" and "private," then maybe the incredible waste of time and taxpayer dollars that go toward smoking legislation will stop. Maybe then the government will stop interfering with property rights and start protecting them.

Okay, I need to relax now — time for a cigar while I can still enjoy one.

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

Ninos P. Malek is a graduate student in the Economics department at George Mason University in Fairfax, Virginia.

Justice Scalia: Public Should Decide on Abortion

Reprinted from NewsMax.com


Supreme Court Justice Antonin Scalia railed against the era of the "judge-moralist," saying judges are no better qualified than "Joe Sixpack" to decide moral questions such as abortion and gay marriage.

"Anyone who thinks the country's most prominent lawyers reflect the views of the people needs a reality check," he said during a speech to New England School of Law students and faculty at a Law Day banquet on Wednesday night [March 15].

The 70-year-old justice said the public, through elected legislatures - not the courts - should decide watershed questions such as the legality of abortion.

Scalia decried his own court's recent overturning of a [Texas] anti-sodomy law, joking that he personally believes "sexual orgies eliminate tension and ought to be encouraged," but said a panel of judges is not inherently qualified to determine the morality of such behavior.


He pointed to the granting of voting rights to women in 1920 through a constitutional amendment as the proper way for a democracy to fundamentally change its laws.

"Judicial hegemony" has replaced the public's right to decide important moral questions, he said. Instead, he said, politics has been injected in large doses to the process of nominating and confirming federal judges.

Scalia has made similar, if less strident, comments during past public appearances.

The jurist, well-known as a strict constructionist in his interpretation of the Constitution, opened his remarks by saying, "I brought three speeches, and I decided to give the most provocative one, because this seems to be too happy a crowd."

[Have you noticed that in other nations, unlike the United States, abortion is not controversial? That's because those nations decided the issue through elected legislatures, whereas it was decided in the U. S. through judicial fiat. Consequently, 33 years after the infamous Roe v. Wade ruling, abortion continues to be a burning issue here.

Too bad Justice Scalia isn't 20 years younger and cannot be chief justice.]

It Couldn't Be Done

by Edgar A. Guest

Somebody said that it couldn't be done,
But he with a chuckle replied
That "maybe it couldn't," but he would be one
Who wouldn't say so till he tried.
So he buckled right in with the trace of a grin
On his face. If he worried he hid it.
He started to sing as he tackled the thing
That couldn't be done, and he did it.

Somebody scoffed: "Oh, you'll never do that,
At least no one ever has done it;"
But he took off his coat and he took off his hat,
And the first thing we knew he'd begun it,
With a lift of his chin and a bit of a grin,
Without any doubting or quiddit,
He started to sing as he tackled the thing
That couldn't be done, and he did it.

There are thousands to tell you it cannot be done,
There are thousands to prophesy failure;
There are thousands to point out to you, one by one,
The dangers that wait to assail you.
But just buckle in with a bit of a grin,
Just take off your coat and go to it;
Just start to sing as you tackle the thing
That "cannot be done," and you'll do it.

Reprinted from The Collected Verse of Edgar A. Guest
Copyright 1934 by Reilly & Lee Company

John Kerry's "Easy Rider" Imitation

[Reprinted from NewsMax.com]


Responding to criticism that he had a laundry list of demands when he stayed in luxury hotels on the campaign trail, Sen. John Kerry said yesterday that he recently took a trip where he slept every night in his truck - accompanied only by his motorcycle, a friend and his butler, "Marvin."

Asked about the trip by radio host Don Imus, Kerry explained: "Marvin and Teddy [and myself] . . . We had the best damned time, I'll tell you."

"It was wonderful," the top Democrat declared. "We didn't stay anywhere. We actually drove all night. We slept in the truck. We cruised through, you know, a couple of little pit stops early in the morning. It couldn't have been nicer."

Kerry insisted that he and his butler were really roughing it, painting a picture right out of the hippie rebel movie, "Easy Rider."

"We didn't have any pillows. I'll tell ya, man. It was really funny cause I blew into some little gas station around midnight or two in the morning, whenever it was, and some guy would do a double take and look at ya. They just couldn't figure out what I was doing there at that hour of the morning.

"I couldn't figure it out [either]," the born-to-be-wild senator added.

Kerry didn't explain who "Teddy" was - or why, if he wanted to rough it, he brought his manservant, Marvin Nicholson, along for the ride.

In 2004, Mr. Nicholson detailed some of his responsibilities to the New York Times, which began its report by noting: "Mr. Kerry is comfortable being catered to."

"When he wants that peanut butter and jelly sandwich, I'm ready," Marvin explained.

Among the items Nicholson carries at all times for the rough and ready Democrat: Swedish hand cream, Scope mouthwash, Handiwipes, two packs of Band-Aids, Tylenol, Advil, Advil Liquid Gels, Advil Sinus pills, a sewing kit, a can of diet milkshake [Kerry prefers strawberry], a tube of Blistex and a myriad of other accouterments.

The Times noted that Kerry, husband of billionairess Teresa Heinz, pays his trusty manservant a mere $45,000 annually.

[Note: And to think: This phony-baloney gigolo got 48 percent of the popular vote for president in 2004!]

The Passing of a Giant

By Robert Ringer

March 1, 2006 was a sad day for the cause of liberty. Sad because a true ethical giant of our time, Harry Browne, passed away.

Browne was the Libertarian Party candidate in the 1996 and 2000 presidential elections. His calm, logical way of expressing libertarian beliefs earned him the respect of many big-name interviewers on national television.

Harry and I were not close friends by any stretch of the imagination. And yet, in interesting and quiet ways, our paths crossed at the beginning of his career, in the middle, and near the end.

I have always credited Harry as one of my earliest and most influential teachers, primarily through his writings. My introduction to his philosophy came in 1971 with his then-shocking book How You Can Profit from the Coming Devaluation.

Circumstances propelled the book to best-seller status overnight, thanks mostly to Richard Nixon. Shortly before the book came out, Nixon made his now-infamous announcement that the U.S. would never devalue the dollar.

Browne, however, wasn't fooled by Tricky Dick's political rhetoric. He was too learned in economics and the workings of the marketplace to be taken in by a presidential sound bite.

As a result, in How You Can Profit from the Coming Devaluation, he was unequivocal in his belief that the U.S. would have no choice but to devalue the dollar in the near future. In effect, this young nobody was taking on the president of the United States!

Sure enough, shortly after Browne's book was published, President Nixon separated the dollar from its gold backing - which officially made paper money a fiat currency. Little did Nixon know that by playing a key role in making Harry Browne into an economic prophet, he was helping to lay the foundation for him to someday run for the very office that Nixon himself held at the time.

But it was Browne's 1974 classic, How I Found Freedom in an Unfree World, that had the greatest impact on my thinking. I recall reading the book from start to finish in a single day, then rereading it again a couple of days later.

I had never read anything that conveyed such clear-headed insights into life. While I didn't agree with everything Browne said in his book, the essence of his philosophy so impressed me that it later served as the foundation for my own No. 1 best-seller, Looking Out for #1.

At the time, many people were very critical of How I Found Freedom in an Unfree World, because it was thought to be a "selfish" philosophy. The mere mention of the word "selfishness" sends many holier-than-thou do-gooders into fits of hysteria, which is probably why the book never became a blockbuster bestseller.

I have discussed at length the subject of selfishness in many articles and books, so I won't sidetrack myself here trying to explain how and why it is a word that is so misunderstood by so many people. What I will say, however, is that it appeared obvious to me that Harry Browne softened over the years and amended a good deal of his philosophy for the better. (Some of this change may have been expressed in his updated 25th anniversary edition of How I Found Freedom, but I'm sorry to say that I have not yet read that newer version.)

A good example of how Harry's philosophy evolved over the years concerns marriage. In How I Found Freedom, he argued that there is no logical reason for a person to get married. His position was that since no one could predict the future with certainty, promising to love someone "until death do us part" is foolish and unrealistic.

Nevertheless, in 1985 he married Pamela Lanier Wolfe. It astonished me when I heard about it - but from what I understand, they had a close and loving relationship during the last 20+ years of his life.

An even more glaring example of Harry's philosophical evolution, and one that was very disturbing to many anarchistic libertarians, is when he changed his stance on running for public office. In his earlier writings, he made it clear that becoming involved in the political process was not only a waste of time, but lent credence to an inherently corrupt system.

Thus, when he first ran for president on the Libertarian Party ticket in 1996, many of Harry's most loyal supporters were deeply disappointed. Though I, too, was surprised by his change in attitude, in retrospect I believe that he made a great contribution to the cause of liberty by educating millions of Americans through media exposure that he would not otherwise have received.

My "middle" encounter with Harry came in the early eighties, when I was publishing other authors' books. Having spoken to him only a couple of times over the years, I was taken by surprise when he unexpectedly called me one day.

I was even more surprised when he asked me if I would be interested in republishing How I Found Freedom in an Unfree World - the very book that had made such a dramatic impact on my own understanding of how the world works. Unfortunately, it came at a time when I had already made the decision to get out of the publishing business, so I politely declined. It was one of those decisions that I now very much regret.

Finally, more than 20 years later, in October 2005, I had occasion to chat with Harry for a few minutes at the Advocates for Self-Government 20th Anniversary Celebration in Atlanta. It afforded me an almost eerie opportunity to tell him how much his work had impacted my thinking over the years. He thanked me and, in return, offered some gracious comments about my own accomplishments.

I had hoped to have Harry participate in my On the Shoulders of Giants Mastermind Series, and we agreed to talk about it by phone. It never happened. Less than five months later, he was gone. And I was left with another regret - the regret of not having quickly followed up on my invitation.

However, a couple of weeks after the event, I did receive an e-mail from Harry that again took me by surprise. I want to share that e-mail with you, because I believe it sums up so well just how much he had evolved as a kind and gracious human being over the years.

Dear Robert,

I was sorry to miss your banquet speech at the Advocates Conference. I'm still at the point where I need a tremendous amount of sleep, and so I thought it wise to go to bed early Saturday night so I'd have sufficient energy for my own speech Sunday morning.

However, on Sunday I heard nothing but good things about your presentation, and Sharon is sending me a CD of your talk - which I look forward to hearing. Thanks for all your kind words. It was a pleasure to see you again after 25 years.

With best wishes,


Harry

The Harry Browne I knew in the late seventies would never have taken the trouble to write such a note. He was a truly great teacher back then, but it was clear to me that he had evolved into a truly great human being. Rest assured that his e-mail will be framed and placed on my office wall.

So, what can we learn from the life and accomplishments of Harry Browne? The list is far too long to elaborate on here, but four things that come immediately to mind are:

1. No matter how brilliant you may be, no matter how firmly entrenched your ideas, you can, and should, continually evolve and grow as a person. I don't believe that Harry Browne ever abandoned his basic principles, but he clearly allowed himself to amend, refine, and expand his philosophy of life.

2. Harry demonstrated the enormous power of the written and spoken word. I rank him as perhaps the greatest writer/speaker of our time. He was living proof that there is no replacement for knowledge and wisdom when it comes to changing the hearts and minds of people.

3. As I have written and spoken about so many times through the years, the power of the understatement is enormous. Harry was the ultimate role model in this respect. Unlike so many famous screaming twit-heads who pop up on our television screens day after day, he never raised his voice, never exaggerated, and never engaged in personal attacks. Calm, clear communication was his trademark.

4. Finally, and the realization that most fascinates me as a social observer, is that so many giants have come and gone over the centuries without the general public even knowing who they were. But that's only one half of the sociological puzzle.

The other half is that so many charlatans are applauded, even revered, by the masses. While millions of sleepwalking individuals sing the praises of fools like Jimmy Carter, clowns like Al Sharpton, shakedown artists like Jesse Jackson, and all-around scoundrels like Clinton & Clinton, the average person has never even heard of such intellectual and moral giants as Eric Hoffer, Will Durant, and Ayn Rand, let alone Harry Browne.

Sadly, giants such as these come and go virtually unnoticed by brain-dead TV addicts, while names like Paris Hilton and Michael Moore are known to all. It is, indeed, an unfair world.

I think we would all do well to use the passing of Harry Browne, a true giant in the cause of liberty and rational thinking, to reflect on the people we most admire and the reasons we admire them. Is it because of their good looks? Their glibness? Their cleverness? Their athletic ability? Their money? Their outrageous behavior? Their notoriety?

As any sane person can surely see, we live in a truly insane world. In my own small way, I try as best I can to be a voice of sanity that reaches out to those who recognize that the world has been knocked off its rational and moral axis. But many more voices than mine are needed.

Hopefully, you, too, are a voice of sanity. All it takes is a commitment to truth, which carries with it a commitment to ignore most of the popular rhetoric of the day - both from those around you and from "the people of the lie" who flood our television screens.

Thanks, Harry, for setting me on the path to rational thinking and motivating me in my quest for truth. I still trip up in these areas from time to time, but your life has been an inspiration to me to pick myself up, brush myself off, and keep on trying.

May you rest in well-deserved peace.

Copyright 2006 Robert J. Ringer

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