Awaiting Word From The Big Easy

With all that's been happening recently, an event from March 5 probably escaped many people's attention. The 5th U. S. Circuit Court of Appeals in New Orleans heard argument in the Mississippi Democratic Party's lawsuit against our state-mandated open primaries.[1] The panel consisted of Chief Judge Edith H. Jones and Judge Emilio M. Garza, both of Texas, and Judge W. Eugene Davis of Louisiana.

Incredibly, no transcript was made of the proceedings. The only newspaper account I saw was an Associated Press story, which is not available for linking (I will italicize quotes from the AP article).

U. S. district judge Allen Pepper issued a ruling in the case in June 2007 and an amended ruling in July 2007. Both the state and the state Democratic Party filed appeals with the 5th Circuit, as did the Mississippi Republican Party and the state chapter of the National Association for the Advancement of Colored People; the court had approved the two latter groups as intervenors in the suit. Contrary to what the AP article implied, all four organizations are not appealing the same aspect(s) of Pepper's ruling.

"... Pepper in Mississippi ruled last year that the state should re-register all voters to allow people to declare themselves as Democrats, Republicans or members of another party. Or, Pepper said, people could register as unaffiliated with any party.

"Pepper said Mississippi must restructure its party primary system by Aug. 31, 2008. Under current law, Mississippians do not declare a party affiliation when they register to vote. Pepper also ordered the state to enact a voter identification law in time for the 2009 [municipal] elections.

"... . The Democratic Party sued in [February] 2006 seeking to keep non-members from voting in its primaries."

That last sentence should say that the Democrats are seeking the right to keep non-members out of their primaries. Pepper went along with the Democrats on this point by declaring our open primary law unconstitutional, and I predict that this part of the decision will ultimately be allowed to stand.

This is the first time that any court has ordered any state to enact voter ID or party registration. Since those two items are prerogatives of the legislature, I believe that those orders will not be permitted to stand.

Last December, the 5th Circuit had set aside Pepper's August 31 deadline by issuing a stay of the ruling.

"... Chief Judge Edith H. Jones asked [Ellis Turnage, attorney for the Democratic Party] what evidence there was that Republicans were influencing the outcome of Democratic elections.

"'How could you prove that?' Turnage said. 'In Mississippi, there's no such thing as Republicans, Democrats or independents. There are only voters.'"

Surely Turnage did not mean that literally. As the 9th U. S. Circuit Court of Appeals said in 2003, "That the voters do not reveal their party preferences at a government registration desk does not mean that they do not have them."[2] There are ways other than party registration of identifying voters' party preferences, although that is indeed the most practical way of doing so.

Michael Wallace, lawyer for the state GOP, reiterated that the Republicans intend to keep their primaries open to all voters: "'It has always been Republicans' position that we're happy to have anybody come vote in our primary...'"

"Fred Banks Jr.[a former Mississippi Supreme Court justice], representing the NAACP, said the original lawsuit did not include the subject of voter ID. He said the Mississippi court itself imposed that requirement.

"'It simply was not an issue before the court,' Banks said. [He] said the Legislature should be left to decide the voter ID question free from any pressure from the courts."

"Andy Taggart, a Jackson attorney representing Republican Gov. Haley Barbour, said Barbour supports the voter ID requirement. Taggart said five other states have primary systems similar to Mississippi's and four of those have voter ID requirements."

I don't know what five states Taggart is referring to, but Mississippi is one of 21 states with open primaries. The purpose of voter ID is to prove that voters are who they say they are, and voter ID is not necessary in order to block certain voters from a party's primary. This is illustrated by the fact that a number of states in which one or more parties exclude some voters from their primaries do not have voter ID.

Furthermore, it's strange that Barbour is promoting voter ID as a tool for closing primaries, when he and the Republicans have said repeatedly that they will keep GOP primaries open to all voters. And the Democrats, who, if their suit succeeds, will block Republicans from Democratic primaries, are opposed to voter ID-- which again proves that voter ID is not needed to accomplish that.

The 5th Circuit's decision, to be sure, may be appealed to the U. S. Supreme Court. If the high court does hear the case, it could well prompt a landmark ruling.

Here's the report from Ballot Access News on the March 5 argument in the 5th Circuit.

My previous posts on this topic are here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, and here.

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[1] When a party has an open primary, any voter may participate in that primary. Mississippi's present law requires any party holding a primary to open it to all registered voters.

[2] Washington State Democratic Party v. Reed