The 5th Circuit's Open Primary Ruling

The Hattiesburg American has imported an article from the Northeast Mississippi Daily Journal, "Mississippians want options at the polls." This piece is about the 5th U. S. Circuit Court of Appeals reversing, on May 28, the U. S. district court's ruling in the Mississippi Democratic Party's challenge of our open primary[1] law.

"U.S. District Judge Allen Pepper's 2007 ruling came in response to a lawsuit initiated by some members of the state Democratic Executive Committee who wanted to keep Republicans from voting in Democratic primaries. In response, Pepper ordered Mississippi to require re-registration of all voters as Republican, Democrat or unaffiliated. The parties would then have been free to decide which registered categories of voters got to participate in their primaries."

"Some members"? It had to be a majority of the executive committee-- the party's governing body-- for the lawsuit to be authorized.

The crucial feature of Pepper's ruling was his declaration that our current primary election law is unconstitutional. The absence of that law would be what would enable each party to determine which voters could participate in its primaries. The Democrats said that they would block Republicans but invite independents to vote in Democratic primaries. The Republicans, in contrast, said that they intended to keep GOP primaries open to all voters.

Party registration is not the straitjacket that many people seem to fear it is. It's merely a way of identifying the voters' party preferences. If the law's unconstitutionality had been upheld, however, Republicans would be the only voters who would need to be identified-- since they would be restricted to GOP primaries-- and that could be accomplished without party registration (Louisiana, incidentally, has registered voters by party since 1916).

"The unintended - and unwelcome - consequence for the Democratic plaintiffs was a concurrent requirement that voters produce identification at the polls.

"No political factions liked the decision, which had the potential to produce a dramatic overhaul of Mississippi politics."

Judge Pepper erred in injecting voter ID into this case, since that is not necessary for the parties to identify the voters that they wish to allow into their primaries. Besides, even if the law's unconstitutionality had been upheld, the orders for voter ID and party registration would very likely have been overturned, since those two items are in the legislature's province.

The main change would have been that Republicans would be limited to voting in GOP primaries, hardly a "dramatic overhaul."

"Mississippians clearly want the option to vote in any primary they wish. If anything, they want an even more open system like Louisiana's, where all the candidates are on the same ballot, regardless of party."

We'll continue with our present primary system for the foreseeable future. Nevertheless, I have proposed a plan which would give Mississippi voters greater choice.

"Pepper had given the Legislature until Aug. 31 of this year to come up with a proposed plan of implementation for his ruling. Now that pressure is off."

That pressure was in fact removed last December, when the 5th Circuit set aside Pepper's deadline by staying his ruling.

The 5th Circuit reversed Pepper's decision because the case was not ripe. Near the end of her opinion, Chief Judge Edith H. Jones wrote, "Further factual development... would enhance this case's fitness for judicial review."

If the Mississippi Democratic Party decides, at some point in the future, to further pursue this matter, it will need to (1) adopt a party rule excluding Republicans from Democratic primaries, (2) submit that rule to the U. S. Department of Justice for preclearance under Section 5 of the Voting Rights Act, and (3) file a new lawsuit in U. S. district court.

The Associated Press also had an article on the 5th Circuit's ruling.

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[1] When a party has an open primary, any voter may participate in that primary. The law which the Mississippi Democratic Party challenged mandates that each party's primary be conducted as an open primary.