Yes, Virginia, You're Not Appealing

There is news from Virginia that increases the likelihood that the Mississippi Democrats' lawsuit against our primary election law will prompt a landmark ruling from the U. S. Supreme Court-- one which will potentially affect 21 states.

In an open primary, a party's primary ballot is available to any voter who requests it. Mississippi and Virginia are among the states which mandate that any party holding a primary must conduct it as an open primary. In 2005, a unit of the Virginia Republican Party brought suit against that state's open primary law. Both the U. S. district court and the 4th U. S. Circuit Court of Appeals subsequently said that there is a circumstance in which the party may block non-members from voting in its primary.

In February 2006, the Mississippi Democratic Party filed a similar suit against our state-mandated open primary. The Democrats' purpose in bringing this challenge was to be able to exclude Republicans from Democratic primaries. In June 2007, U. S. District Judge Allen Pepper agreed with the Democrats and declared the law unconstitutional. He also ordered party registration and something which the Democrats had not sought, voter ID. This is the first time that any court has ordered any state to enact voter ID or party registration.

The Mississippi suit-- Mississippi Democratic Party v. Barbour-- is now in the 5th U. S. Circuit Court of Appeals in New Orleans, which heard the case on Wednesday, March 5. The 5th Circuit had previously (1) stayed Judge Pepper's decision and (2) expedited the case. The court's Web site says that its goal is to issue rulings within 60 days of hearing cases.

Both the state of Virginia and the Virginia Republicans have announced that they will not appeal that case to the U. S. Supreme Court.

The main precedent for the Virginia and Mississippi suits-- California Democratic Party v. Jones-- directly affected only three states, and it's considered a landmark case. So it's pretty safe to say that, if the Supreme Court indeed hears the Mississippi case, that will also be a landmark ruling.