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.

This Dixie Two-Step May Affect 22 States

[The Clarion-Ledger ran this letter on March 10, 2006. It's a commentary on that paper's article of March 1, "Miss. Dems want change in primaries," and editorial of March 5, "Primaries: Voting, voters should be the issue."]

Under the U. S. Supreme Court's reasoning in a 2000 California case, the Mississippi Democrats' lawsuit has an excellent chance of success. When the justices were considering the 2000 case, columnist George Will urged them to go ahead and strike down the primary election system used by 22 states, including Mississippi.

A similar lawsuit was filed last year in Virginia and has already reached the federal appeals court there. Ironically, that suit was brought by a local unit of the state Republican Party.

These cases involve the freedom of association, which is part of the First Amendment guarantee of free speech. The question is whether a state may force a political party to allow non-members to participate in its nominating process.

You noted that this suit may bring about voter registration by party. Another possibility is the Democrats excluding from their primary anyone who has voted in a Republican primary within a certain period of time.

Regardless of the outcome, the Republicans will still have the right to invite any and all voters to participate in their primary.

You also mentioned the system in which all candidates run in the same election. While the big majority of U. S. cities use that system for municipal elections, only Louisiana uses it for state and congressional elections.

Personally, I would prefer that we keep the present setup. But the reality is that that's very unlikely to happen. It will, however, be fascinating to watch this case as it progresses and to hear what the federal courts have to say about it.

Like Hell We Like Ike!

[This is an ABC News story on the first-ever suit brought by the Department of Justice under the 1965 Voting Rights Act alleging discrimination by blacks against white voters. Noxubee County is in northeast Mississippi and borders Alabama.]

MACON, Miss., Dec. 28, 2005 — In overwhelmingly black and Democratic Noxubee County, Miss., everybody knows local Democratic Party Chairman Ike Brown.

Officials at the U.S. Justice Department know Brown too; they're suing him.

Using the 1965 Voting Rights Act, the government has alleged that Brown and local elections officials discriminated against whites. It is the first time the Justice Department has ever claimed that whites suffered discrimination in voting because of race.

"When I read the letter, it was junk, you know, bogus," Brown told ABC News.

The Justice Department says Brown and local elections officials disenfranchised whites — challenging their voting status, rejecting their absentee ballots and telling voters to choose candidates according to race.

Brown says he has merely tried to keep white Republicans from voting in Democratic primaries. He says the lawuit is all political — an attempt to discredit him because the Democratic Party in eastern Mississippi has been doing so well at bringing new voters to the polls, which may mean someday soon that Mississippi, a red state, could turn blue.

"The Justice Department's become an arm of the RNC," Brown said.

The Justice Department would not comment, but county prosecutor Ricky Walker is a potential witness for the government. Walker was surprised when Brown recruited a black candidate who didn't even live in the county to run against him. Walker, after all, is a Democrat.

"Mr. Brown seems to favor black candidates," Walker said. "He's always encouraged blacks to vote strictly for the black candidates."

UNAPOLOGETIC ABOUT BIAS

Brown is unapologetic.

He says some local white Democrats aren't "true" Democrats.

"We support the black candidates because we're sure they're going to vote in the liberal interest," Brown said.

The case takes on added complexities given the state's turbulent history during and after the civil rights era, especially those struggles having to do with voting. Mississippi is where civil rights leader Medgar Evers was murdered, as were the three civil rights workers looking to register blacks to vote, as depicted in the film "Mississippi Burning."

The president of the Mississipi NAACP, Derrick Johnson, says there is still plenty of discrimination against black voters in the state, and he questions the Bush administration's priorities in bringing this suit.

"We've had several issues over the years of what appeared to be racial discrimination against black voters and the Justice Department has yet to come in and do a thorough investigation," Johnson said. "And for them to take on this case is highly unusual and very suspect."

But others in the civil rights community take a more circumspect attitude in the case against Brown.

"Voting is precious. It's a right that people sacrificed for for years and years," said Leslie Burl McLemore, director of the Fannie Lou Hamer Institute at Jackson State University. "There is a way to encourage participation, and it can be done without having to discriminate against another set of voters." [Dr. McLemore is also a member and past president of the Jackson City Council. In 1980, he was an independent candidate for the U. S. House and ran second to Republican Rep. Jon Hinson, while the Democratic nominee, Britt Singletary, finished third.]

RACIAL DIVIDE

Like so many things in Noxubee's Macon community, opinions about the case divide along racial lines. Residents opined at Geneva's Kitchen, a local restaurant, over soul food and sweet tea.

"I think Ike's a pretty good man," local resident Alonzo Phillips told ABC News.

"I guess he do target, you know, the Republicans, and they are white. Most of them," said Geneva, the restaurant's owner.

On Main Street, whites express different sentiments: "I think Ike Brown is a racist," said a white man.

"I think we're getting a little dose of our ancestors' medicine, if you want to know the truth," said another.

Those ghosts from civil rights battles past have never left Noxubee County, and they continue to influence the way the case against Brown is viewed. But guilty or innocent, the Justice Department wants this case to be about Brown, not the state's historical disenfranchisement of black voters.

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

[The following piece, "Noxubee Democrats to pay $500 fine," ran in The Clarion-Ledger on February 7, 2006-- on page 2-B!!]

A federal judge has ordered Noxubee County Democratic Party leaders to pay a $500 fine and submit a list of witnesses to the U. S. Department of Justice by next week for a lawsuit alleging they violated the rights of white voters.

Democratic Party Chairman Ike Brown and the party's county executive committee were accused of failing to comply with court rules requiring them to give the federal government a list of witnesses for the lawsuit filed against them.

The suit, which gives only one side of the legal argument, alleges Brown and other black county political leaders have discriminated against white voters and candidates in elections. Brown and the party committee deny the charges.

U. S. Magistrate Alfred Nicols agreed with the Justice Department that Brown and other party officials have been dragging their feet on the list of witnesses. He gave them a February 14 deadline to provide the information and pay the federal government fine.

[A $500 fine?! WHOOP-DOOP-DE-DOO!!]