Ruling in Mississippi Democrats' Open Primary Suit: the Sequel

July 18-- Near the middle of page three of U. S. District Judge Allen Pepper’s July 17 memorandum opinion, he misconstrues the Elections Clause of the U. S. Constitution. Either 1) he doesn’t realize that this clause refers to U. S. senators and representatives, or 2) he’s not aware of the 1872 federal law which established the first Tuesday after the first Monday in November of even-numbered years as federal election day.

Also, the judge is clearly not familiar with Reed v. Democratic Party of Washington State (2004), which follows the precedent set in California Democratic Party v. Jones (2000)-- and in which Washington state defended its primary election system by noting that, unlike California, Washington does not have party registration. The Ninth Circuit opined, “These are distinctions without a difference.” Pepper nevertheless contends that party registration-- along with voter ID-- is necessary for a party to disassociate from nonmembers.

The notion that party registration and voter ID are conjoined is belied by the fact that 19 states have party registration but do not have voter ID. And another 14 states have voter ID but do not have party registration.

Astonishingly, the judge admits that, when he wrote his June 8 opinion, he was not aware that Mississippi’s federal primaries were scheduled for March 2008, not to mention that some of our municipalities also have primaries slated for spring 2008.

I could make quite a list of other errors in the two rulings, but the ones above really stand out. Pepper, in my view, does answer the Big Question correctly-- that our current primary election law is unconstitutional-- but even at that, he gives incorrect reasons for its unconstitutionality.

An individual in a black robe issues an opinion, and many people react as though the tablets just came down from Mount Sinai.

Incredible.

This commentary is also posted at Yall Politics.

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July 20-- The Clarion-Ledger's July 19 editorial leaves me feeling like a mosquito in a nudist camp: I hardly know where to start. The editorial writer either 1) doesn’t read Yall Politics or 2) thinks that we don’t know what we’re talking about here.

“The Mississippi Democratic Party Executive Committee had sued to force a closed primary system...”

Closed primary: a party’s primary ballot is only available to that party’s members. No judge, no court can close a primary, and neither can the state. If a party has a closed primary, it’s because that party closed it.

If our state-mandated open primary system is ultimately struck down-- as I believe it will be-- it does not automatically follow that we will have closed primaries. What will follow will be that each party-- rather than the state-- will determine who votes in its primaries. The Democrats have stated that they will invite independents but exclude Republicans from Democratic primaries. (That’s a semi-closed primary.) The Republicans, in contrast, have said that they will keep their primaries open to ALL voters-- even if party registration is enacted.

Accordingly, Republicans will be the only voters who will have fewer choices than they have today. To put it another way: Democrats and independents will have the same choices as ALL voters have now.

“Requiring voter identification is not negotiable.”

It’s certainly not negotiable with Judge Pepper, but it is “appealable"-- to the 5th Circuit, where the likelihood is great that both the voter ID and the party registration parts of the ruling will be reversed. Those two items are the legislature’s prerogatives.

The editorial writer alleges that Pepper’s “logic is impeccable” in ordering voter ID and party registration. In my view, his logic is practically non-existent. Case in point: 19 states have party registration but do not have voter ID. In 16 of those 19 states, both major parties exclude some voters from their primaries. In each of another two of those states, one party excludes some voters.

In the U. S. Supreme Court’s ruling in California Democratic Party v. Jones (2000), which is the main precedent for the Mississippi Democrats’ lawsuit, there is absolutely no mention of voter ID.

Consider this: a state does not have to mandate that political parties nominate candidates. But if it does, it’s up to the state to tell the parties which method(s) of nomination they may use-- primaries, conventions, caucuses, etc. If a state cannot be ordered to mandate party primaries-- or even to require that parties nominate candidates at all-- how in the world can a state be ordered to enact voter ID or party registration?

A judge who aspires to be a legislator should put his black robe in mothballs and hit the campaign trail.

This commentary is also posted at Yall Politics.