The Mississippi Democrats' Open Primary Lawsuit

This commentary was first posted at Mississippi Politics.

Sidney Salter seems to have done some due diligence since last year, when he spread considerable misinformation on this matter.

“... a federal lawsuit designed to “close” Mississippi’s present “open” primary system and allow only Democrats to vote in the Democratic Primary...”

Mississippi law forces each party to allow any voter to participate in its primary. The Democrats’ lawsuit asks the court to declare this law unconstitutional. If the law is ultimately struck down, each party will then be free to determine who votes in its primaries.

The courts cannot order closed primaries or say who votes in which primary; they can only decide the constitutionality of our primary-election law.

“Mississippi law authorizes “open” primaries - meaning that state voters don’t register by party."

Open primary: A party's primary ballot is available to any voter who requests it. In almost every state where one of the major parties has open primaries, the other major party does, too. And almost all of the open-primary states do not register voters by party.

The exceptions are Iowa, Alaska, and Utah, all of which have party registration. Both of Iowa's major parties have open primaries. And Alaska Democrats and Utah Democrats invite all voters-- even registered Republicans-- to participate in their primaries. (Of course, a Republican who does so must skip voting in the Republican primary.)

“Without party registration, enforcing “closed” primaries becomes difficult if not impossible.”

It’s worth noting that each state decides whether or not to enact party registration. No court has ever ordered any state to have party registration.

Sam Hall, the Democrats’ communications director, has indicated that, if the Democrats win the lawsuit, they will invite independents but exclude Republicans from their primaries. Gov. Haley Barbour has stated that the Republicans, on the other hand, will keep their primaries open to all voters-- even if party registration is enacted. Accordingly, Republicans would be the only voters who would have fewer choices than they have today.

Party registration is the most practical way to identify voters, but if party registration were not enacted, here’s how the Democrats might run their primaries. Since each voter’s choice of primary is public record, the Democrats could furnish the poll workers with a list of people who had voted in a Republican primary within a certain period of time. When a voter whose name was on this list requested a Democratic ballot on primary day, he would be required, in order to receive that ballot, to sign a form affirming his support of the Democratic Party and its principles. (Can’t you just hear the cries of “loyalty oath!”?)

“The appellate courts have also held that voters cannot cross party lines between the first and second primaries.”

This is not true, as evidenced by our sister state. Since Alabama law does not forbid it, the Republicans there invite people who vote in the Democratic first primary to cross over and vote in the Republican second (or runoff) primary.

“... a Virginia case now on appeal to the 4th U.S. Circuit Court of Appeals in which Virginia Republicans objected to that state’s open primaries.”

The Virginia Republicans who support that lawsuit object to being forced to let Democrats vote in their primaries; they don’t really care how the Democrats run their primaries.

“That case is expected to take until well into 2008 before it winds it[s] way to the U.S. Supreme Court.”

This is correct. The Virginia case will likely not reach the Supreme Court before the fall of 2008. This means that we will get to keep our current primary-election setup at least through next year.

“Existing state law allows state voters to “vote for the man (or woman)” rather than the party label.”

This is universally true of general elections, in which all candidates are listed on the same ballot. However, whether primaries are open or closed, each voter is limited to one party’s ballot on primary day.

If the Democrats win the lawsuit, suppose there is a legislative bill for party registration while Haley Barbour is still governor. Barbour could use his clout to prevent the bill from becoming law. This would force the Democrats, in order to keep Republicans out of their primaries, to resort to their “loyalty oath,” which would make lots of voters mad.

Would a former Washington tobacco lobbyist pull such a trick? N-a-a-a-h.

Note: Good commentary on the Mississippi Democrats’ lawsuit as well as references to the Virginia Republicans’ similar suit are available here, here, and here.

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The April 9 Clarion-Ledger editorial is virtually a carbon copy of Sidney Salter's April 4 column. You have to give Sidney credit for being consistent-- even when he misinforms. Unfortunately in this instance, he has a much larger audience than this Web site has.

"... 'open' primaries - meaning that state voters don't register by party."

That will come as a surprise to Iowa Democrats, Iowa Republicans, Alaska Democrats, and Utah Democrats-- all of whom have open primaries (the party's primary ballot is available to any voter who requests it). And all three states do have party registration.

"Without party registration, enforcing 'closed' primaries becomes difficult if not impossible."

If the legislature does not enact party registration, there is a method that the Democrats might use to exclude Republicans from their primaries. I've described this method in my comment above.

"But state law should remain loyal to making it easier, not harder, for voters to vote as they choose."

Here are powers that the legislature has: 1) it may require the parties to use primaries to nominate their candidates; 2) it decides whether or not voters register by party; 3) it sets the various deadlines for voter registration and candidates filing to run; and 4) it may forbid the parties from inviting members of opposing parties to vote in their primaries. The Mississippi legislature surely won't do this, as it would reduce the voters' choices.

The question that the federal courts will decide is whether it is constitutional for a state to force political parties to allow any voter to participate in their primaries. If the open-primary law is ultimately struck down, each party will be free to determine who votes in its primaries.

"But in general elections, voters are free to vote for the candidate of their choice..."

This is obviously true of all general elections in the U. S., since 1) all candidates are listed on a single ballot, and 2) it's a secret ballot. It's worth noting that when Mississippi began using the party primary statewide in 1903, the Democratic primary was the only primary, so it was almost always a de facto general election. While the Republicans started running some serious candidates in the 1960s, they did not hold a party primary until 1978.

"The case is set for trial on June 30."

July 30 is the correct date for the non-jury trial in Greenville.

"... a Virginia case now on appeal to the 4th U.S. Circuit Court of Appeals in which Virginia Republicans objected to that state's open primaries."

Again: the Virginia Republicans who back that lawsuit object to the state forcing them to let Democrats vote in their primaries. The Republicans don't really care how the Democrats conduct their primaries.

Note: There were some interesting comments on the Mississippi Democrats' lawsuit on March 1, 2006, the day that it was made public.