An Exchange on the Mississippi Democrats' Open Primary Case

On May 28, the 5th U. S. Circuit Court of Appeals in New Orleans reversed the district court's ruling in the Mississippi Democratic Party's suit challenging our open primary law, saying that 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." The court thus left the door open for the Democrats to pursue the matter more. The party will hold its convention tomorrow, June 7, when some members of the state executive committee will be elected. On July 12, the executive committee will elect the new state chairman, likely to be former state Rep. Jamie Franks, the 2007 nominee for lieutenant governor. We should then have some idea as to what the party's next move, if any, will be vis-a-vis this case.

Below are excerpts from an exchange that I had at FOLO about this and related issues. The commenter "Researcher" identifies himself as a former executive director of the Mississippi Democratic Party.

Steve: The ruling is a setback for the Mississippi Democrats in that the law forcing them to let non-members vote in Democratic primaries still stands.

After Judge Pepper erroneously ordered voter ID– which has no place in this case– Gov. Barbour tried to persuade the 5th Circuit to uphold the order for voter ID. The fact that Pepper was reversed was a setback for Barbour.

No court can order a state to have closed primaries, and the legislature cannot force the parties to conduct closed primaries...

[... .]

Researcher: This is not about Republicans voting in Democratic primaries. This is a fight between factions in the Democratic Party...

Steve: Well, the pro-lawsuit faction obviously won, since the suit was authorized by the state Democratic Executive Committee– the party’s governing body.

The Democrats have said that they will continue to welcome independents into Democratic primaries.

If the Democrats ultimately win the lawsuit, independents will continue to have their choice of either party’s primary, since the Republicans have said that they will keep their primaries open to ALL voters.

The only voters who would have less choice on primary day would be Republicans, who would be restricted to the Republican primary.

[... .]

Steve: [Researcher asks] “Would the current stated intention to allow independents to vote be binding on the state committee?”

... absent the current law, the executive committe would decide who could vote in the party’s primaries. Take California this year, for example. The Democrats invited independents into their February presidential primary, but the Republicans did not. In the June 3 primaries for other offices, however, independents will have their choice of either party’s primary.

[... .]

Steve: Our state’s primary election law, in my view, violates the associational rights of political parties. The state forces parties to let ANY voter participate in their primaries– their candidate selection process.

In California Democratic Party v. Jones, the main precedent for the Mississippi Democrats’ suit, the U. S. Supreme Court said that political parties have “... the freedom to identify the people who constitute the association, and to limit the association to those people only.”

How would you interpret that statement?

[... .]

If a party wants to open its primary to all voters, it may do so, but the state has no business forcing it to.

... If the suit had not been properly filed by the party, it would have been dismissed by the district court, as happened last year with the Idaho Republican Party.

The Idaho suit was re-filed last month– properly this time. If it’s any consolation, there’s also internal conflict in the Idaho GOP over that lawsuit.

[... .]

Steve: [... .]

[Researcher asked] "... why would the party not want to appeal to [non-members] and encourage them to vote in Democratic primaries?"

That’s the point– it should be up to the party, not the state. It’s not the proper role of the state to force parties to let non-members help choose their nominees.

In that New York case from last January, the U. S. Supreme Court (SCOTUS) said, “A political party has a First Amendment right to limit its membership as it wishes and to choose a candidate-selection process that will in its view produce the nominee who best represents its political platform.”

Sooner or later, the SCOTUS will have the opportunity to hear a challenge of a state-mandated open primary, such as Mississippi now has. When it does, I believe that the high court will strike it down.

Here’s a very relevant column that George Will wrote shortly before the SCOTUS struck down California’s blanket primary in 2000.

[... .]

Steve: [... .]

What I have said on this thread is based on the trends in the federal courts, not my personal feelings. If I had my “druthers,” the only basic thing that would change would be the way that we elect our local (county and municipal) officials; I have proposed a plan for giving our voters greater choice.

[... .]

Steve: [... .]

[Researcher said] “Primaries are not party elections. They do not elect party officials.”

Project Vote Smart says a primary election is “an election prior to the general election in which voters select the candidates who will run on each party’s ticket. Primaries are also used to choose convention delegates and party leaders… .”

In many states, the parties’ precinct officers are chosen in the party primaries.

[Researcher:] “The states are doing the parties a favor by allowing them to nominate candidates for public office.”

Political parties have a First Amendment right to nominate candidates, but the state is not required to recognize those nominations. Almost every state (1) mandates that the parties nominate candidates, (2) specifies the method(s) for those nominations, at least one of which is the primary, and (3) limits the general election ballot to one candidate per party per office.

[... .]

Steve: [Researcher said] “The party does not pay for the primary. General taxpayers pay.”

In 1995, in [Republican Party v. Faulkner County, Arkansas] a federal appeals court said that, when the state requires parties to nominate by primary, the state must pay the costs of those primaries. If left to their own devices, the parties would be very unlikely to hold primaries, due to the expense. The state will therefore continue to mandate primaries, since the voters are accustomed to them.

[... .]

Steve: [... .]

... As for party registration, it’s no big deal either way. It’s certainly not the straitjacket that a lot of people seem to fear it is. It’s merely a way of identifying voters’ party preferences. If the Democrats succeed in their suit, the only voters who will need to be identified will be Republicans, and that can be done without party registration (Louisiana, incidentally, has had party registration since 1916).

[... .]

This complete post is here.