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Free Citizen

This writer espouses individual liberty, free markets, and limited government.

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Location: Jackson, Mississippi, United States

Sunday, March 09, 2008

Blame it on the Supremes

Susan Estrich was the first woman to manage a major party's presidential campaign. She ran the 1988 effort of the Democrat Michael Dukakis, who lost to Vice President George H. W. Bush.

The 1981 LaFollette ruling, one of the precedents for the Mississippi Democrats' pending suit against our primary election law, was an unusual case. The national Democratic Party sued the state of Wisconsin, and the Wisconsin Democratic Party sided with the state against the national party. The state Supreme Court decided in favor of the state, whereupon the case was expedited and appealed directly to the U. S. Supreme Court. Justice Potter Stewart wrote the majority opinion, which reversed the Wisconsin court and held in favor of the national Democrats.

The first presidential primary was held in the early 1900s, and it was not until the 1970s that the majority of states began holding presidential primaries. It should be noted that, when someone participates in a primary or a caucus, he or she is helping to choose that party's nominee. Such a participant is not actually voting to elect someone to office.

by Susan Estrich

Blame the Supremes. That's right. The nine of them are responsible for this mess.

If you're shaking your head about how it is that in Texas, Democrats vote not once but twice, and lifelong Republicans who want to jimmy with the process can vote, too; or why it is that in California, independents (or, as we call them, "decline to states") could vote in the Democratic primary but not in the Republican primary — if they knew to fill in both the bubble for their candidate of choice and a separate one saying they were Democrats for the day; or how it came to be that even though Michigan and Florida held primaries on the date ordained by state law, the results don't count (at least as of now) for the Democrats, the short answer is simple: Blame the United States Supreme Court.

I know what you're thinking: The Court didn't make this crazy patchwork of rules that no one but those we in party circles used to call "rules junkies" could ever understand. And that's true. The two national parties and the 50-something state parties are responsible for this bout of creative law making. But it was the Supreme Court, back in 1980, that gave the national parties, nowhere mentioned in the Constitution, supreme power to define the processes by which their nominees are selected, thus empowering a group comprised of people you've never heard of or voted for to make rules that determine who (not to mention how) you vote for president.

The issue in 1980 was the Wisconsin open primary. Wisconsin has, and had then, a long tradition of allowing anyone, regardless of party, to cast their vote in whichever primary they wanted. You didn't even have to become a Democrat for the day to do it. But after the 1972 contests — in which there were all kinds of reports of [Alabama Gov. George] Wallace people voting for [South Dakota Sen. George] McGovern, and various and sundry Republican troublemakers trying to affect the choice of the man who would run against their nominee, President Richard Nixon — the Democrats adopted a rule limiting participation in the primaries and caucuses leading up to the nominating convention to "bona fide Democrats."

Wisconsin sought an exemption from the rule prohibiting so-called "open primaries," but the national party said no. Wisconsin held an open primary anyway. The national party made noise about not seating the Wisconsin delegation. It took until the very late spring of 1980 for the case to reach the point of a decision by the United States Supreme Court, which held...Read more>>>

3 Comments:

Blogger Steve Rankin said...

Richard Winger, publisher of Ballot Access News, writes:

"Susan Estrich [a law professor!] doesn't seem to know that the US signed a human rights treaty in 1990, in which we (and all the other signing nations) promised to treat political parties as private autonomous organizations. The
treaty is the 'Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE.'

We promised to maintain 'a clear separation between the State and political parties.' Sort of like
separation of church and state."

Sun Mar 09, 03:08:00 PM CDT  
Anonymous Ed Bickford said...

It is helpful to have a reference when discussing a court ruling, e. g.: Democratic Party of U.S. v. Wisconsin, 450 U.S. 107 (1981).

I had trouble finding the transcript because of the misinformation in both your and Ms. Estrich's writing, finding that the case was not actually decided until Feb. 1981. As noted in the decision, "This Court noted probable jurisdiction of the appeal on July 2, 1980. [448 U.S. 909]. On the same day, the Court stayed the judgment of the Wisconsin Supreme Court." This renders Ms. Estrich's recollection of times as fuzzy: "It took until the very late spring of 1980 for the case to reach the point of a decision by the United States Supreme Court."

Are you really so jaded as to maintain with Ms Estrich that "Whether Michigan or Florida should have delegates, and how they should be selected, isn't an abstract question of political science, but a question of whether you're for Obama or Hillary."?

Thu Mar 27, 02:09:00 AM CDT  
Blogger Steve Rankin said...

This ruling is known as "LaFollette." I read the opinions six or seven years ago.

I recently came across a reference to LaFollette and noted that it was indeed decided in 1981, and I had intended to change that in my foreword to this article.

As to your question: unlike Ms. Estrich, I don't have a dog in that fight. I've been saying that, unless the Democrats are a lot dumber than I think they are, they'll find a way to have Michigan and Florida represented at their convention.

Thanks for your comment.

Thu Mar 27, 01:36:00 PM CDT  

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