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Free Citizen

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

Location: Jackson, Mississippi, United States

Thursday, August 28, 2008

The "Open Primary" Debate Rages On

My piece on Oregon's ballot initiative, Measure 65 (M65), has attracted several provocative comments. M65 proposes a Louisiana-style "top two" election system, popularly called an "open primary" in the Beaver State. Linda Williams, chairwoman of the Independent Party of Oregon, the state's third largest political party, lists defects in M65, as Dan Meeks also does. My friend Nancy Hanks-- the Queen of the Independents-- has posted two comments defending the "open primary" ("top two" is a much more accurate term for such nonpartisan elections). I will here respond to Nancy's comments.

Nancy is an official in the New York Independence Party, so she evidently considers anyone outside of the two major parties to be an independent.

"Since when are major party hacks concerned about excluding minor parties from the ballot????"

I think the "major party hacks" are concerned, Nancy, about their own parties being able to officially nominate candidates for the general election ballot-- which is one of the basic functions of a political party. M65's "top two"/"open primary" concept is far from being a "reform"... it's actually a regression to a no-party system.

"... you make the party primary system sound downright fair and equitable! But surely you are aware that the best scenario for an independent or minor party candidate is a non-partisan election."

States began in the early 1900s requiring the parties to hold primaries. Before that, the parties in most cases used conventions and caucuses to nominate their candidates. In a convention or caucus system, of course, grassroots citizens can only vote in the general election.

Richard Winger, publisher of Ballot Access News, has done a study of California's and Washington state's experiences with the blanket primary, in which all candidates of all parties were listed on a single primary ballot. Richard found that independents and minor party candidates almost never finished first or second.

I have observed Louisiana's experience with its "open primary" since its inception in the 1970s, and I cannot recall any independents or minor party candidates ever making the "top two" for a congressional or statewide office.

For an independent or a member of a minor party to support the "top two"/"open primary" is like a chicken handing Colonel Sanders a hatchet and inviting him into the henhouse.

"And why should the voters pay for closed partisan primaries???"

In 1995, a federal appeals court ruled that, when the state compels parties to hold primaries, the state must pay the costs of those primaries (Republican Party v. Faulkner County [Arkansas]). If left to their own devices, the parties would very likely nominate by convention or caucus rather than by primary-- because of the expense of holding primaries. Since the voters are accustomed to primaries, the states will continue to require and pay for primaries.

"Open primaries became a national issue in this [presidential] election campaign because independents were allowed to vote in some states but not in others, and most voters feel that's unfair."

You're mixing apples and oranges here, Nancy. What you're talking about here is the true open primary, in which a party's ballot is available to any voter who requests it. In almost every state where one major party has open primaries, the other major party does too (each voter, to be sure, may vote in only one party's primary).

Several federal courts have ruled against the state-mandated open primary. Idaho Republican Party v. Ysursa, which challenges that state's open-primary law, is currently in the U. S. district court there. Sooner or later, a case challenging the state-mandated open primary will reach the U. S. Supreme Court, and when it does, I'm convinced that the high court will strike down such a law (see Miller v. Cunningham [Virginia, 2007], California Democratic Party v. Jones [2000], and Democratic Party of Washington State v. Reed [2003]).

In states where open primaries are not mandated, each party decides whether independents are invited to vote in its primaries. If independents are not invited, they may vote in a party's primary by simply re-registering as a member of that party.

Why should a voter who steadfastly refuses to join a party be allowed to participate in that party's candidate selection process-- unless the party invites such a voter to do so?

"Partisan politics, whether it's major party or minor party, is on the way out."

Does that mean the New York Independence Party is on the way out, Nancy? Seriously, if the "top two"/"open primary" is such a great idea, you have to ask yourself: why is it that only two states-- Louisiana and Washington-- have ever used it for all of their state and congressional elections? Washington state is using it for the first time this year and faces continuing litigation from the state's Democratic, Republican, and Libertarian parties. And Louisiana has this year restored party primaries for its congressional elections.

"Open primaries is important for independent voters to be able to participate in elections in a meaningful way."

You express a concern, Nancy, for independent voters, and yet you don't seem to be similarly concerned about independent and small-party candidates.

The "top two"/"open primary" enables the voters to choose among all the candidates in the preliminary round,[1] but there are only two candidates per office in the final round. Again I ask: why should the voters be limited to just two choices per office in the final, deciding election?

Here is an article I wrote in 2004, during the "top two"/"open primary" initiative campaigns in Washington state and California (Prop. 62 lost in 51 of California's 58 counties).

Click here for a piece on the various election systems. This includes the history of Louisiana's "open primary" as well as the efforts, 1966-1979, to impose the "open primary" here in my state of Mississippi.


[1] It should be noted that, in Louisiana's "open primary," there is no runoff when one candidate gets 50-plus percent in the first round. In Washington state's "top two" and Oregon's M65 "open primary" proposal, however, there is always a second round between the top two vote-getters.


Anonymous Jim RIley said...

US law and the US Constitution require that US senators be chosen by the people of the respective states on the 1st Tuesday after the first Monday in November.

Sooner or later, the US Supreme Court is going to determine that any preliminary procedure that excludes otherwise qualified persons from being chosen on the date set by Congress is unconstitutional, unless it is absolutely necessary for the conduct of the election.

Filing deadlines will have to be only early enough to enable ballot preparation. Petition requirements will be minimal.

State-mandated or state-recognized party nominating procedures will be outlawed, even if participation by candidates or voters is purported to be voluntary.

Thu Aug 28, 05:56:00 PM CDT  
Blogger danmeek said...

Your link to the Independent Party of Oregon website does not go to any discussion of the "top 2 primary" proposal. But allow me to offer here some thoughts, which I posted to the Hankster 2 days ago but which never appeared there.

Measure 65 will destroy minor parties in Oregon, reduce voter choices, confuse the ballots, and encourage dirty politicking.

Today, Oregon's six minor parties can provide good alternatives to the Democratic and Republican candidates in the November general election. Measure 65 will stop this.

Fewer choices. Measure 65 will abolish the Pacific Green, Constitution, Working Families, and Peace parties by removing their legal basis to exist (getting 1% of the vote in a statewide general election).

Measure 65 is also intended by its sponsors to remove all minor party and citizen-sponsored candidates from the general election ballot, including those supported by tens of thousands of signatures.

More Dirty Tricks. Measure 65 will allow effective ballot sabotage.

Under Measure 65, anyone can register as, say, a "Republican" and immediately file to run for public office, with "Registered: Republican" next to his name on the ballot, whether or not anyone in the Republican Party knows him (he may be a Nazi, Communist, convicted child molester, etc.).

Each party will try to reduce the resulting voter confusion by "endorsing" a candidate in each race. This means Measure 65 will replace the major party primaries with backroom "endorsement" deals. It will also force minor parties to "endorse" major party candidates they do not agree with, just to oppose the strangers on the ballot who suddenly claim to be "their" candidates.

Primary elections could become a game of "ringers," with political consultants recruiting phony candidates just to split the votes of the other parties. Republican consultants could recruit people to register and file as "Democratic" candidates, thereby splitting the Democratic vote and allowing two Republican candidates to win the "top two" primary and proceed to the general election, alone. Democrats could recruit phony "Republicans." Both of them could recruit phony "Independents." Every party in every primary election can be sabotaged this way, under Measure 65.

Expect a confusing ballot, with a dozen or more candidates for each major office who are "Registered" and/or "Endorsed" by the surviving parties.

Sat Aug 30, 04:51:00 AM CDT  

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