Federal Court Hears Idaho Open Primary Case

Here's a good article on Idaho's party primary system and the Republican Party's lawsuit.

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On February 18, a U. S. district judge in Boise heard oral argument in the Idaho Republican Party's suit against the Gem State's primary election law (Idaho Republican Party v. Ysursa). The party wants to be able to enforce its rule that says that only Republicans may vote in Republican primaries.

"If U.S. District Judge B. Lynn Winmill agrees, Idaho would have to scrap a decades-old system that allows voters to cast either a Democratic or Republican ballot in primary elections."

There's little doubt that the district court's ruling will be appealed to the Ninth U. S. Circuit Court of Appeals.

"... members of the Republican Party’s conservative wing claim that crossover voting by Democrats and independents could dilute the party’s role in selecting candidates, alter candidates’ campaign message and help elect more moderate Republicans.

"[GOP lawyer] Troupis also contends that Idaho’s open primary system violates the First Amendment right to free association. Troupis said the open primary forces party members to associate with nonmember voters who don’t share the same enthusiasm for party rules, core interests or achieving party goals.

"The party 'wants to identify the persons who want to associate with the Idaho Republican Party as members of the party, and limit the participation in the selection of its candidates to members of the Party,' Troupis wrote..."

"Harry Kresky, an attorney representing independent voters, said Idaho independents would be harmed by having to publicly register with a party just to take part in an election. He has previously argued that a closed primary would close out a voting bloc that wouldn’t want to register and makes up about a third of Idaho’s electorate."

Why should people who steadfastly refuse to register with a party be allowed to help choose that party's nominees-- unless the party invites them to do so?

"'There is simply no precedent for a political party dictating to a state the kind of primary a state should run to avoid free association' conflicts, Kresky said."

The state may require a party to nominate by primary, but there are indeed precedents that say the state does not have carte blanche to dictate the nature of the primary (actually, no federal court has ever said that states may require parties to nominate by primary).

It's not known which way Judge Winmill will turn (yuk-yuk).

Click here for Ballot Access News's post on the hearing, which predicts that the judge will rule in a month or two. My comments are No. 5 and No. 7.

Trouble Likely for Obama Supreme Court Picks

One of the few fortunate things about the disastrous presidency of Jimmy Carter (1977-1981) was that there were no openings on the Supreme Court. It doesn't seem likely, however, that we will experience the same good fortune with the administration of President Barack Obama (the Anointed One). Justice John Paul Stevens is now approaching age 89, and Justice Ruth Bader Ginsburg is 75 and has had two bouts with cancer. Since both are liberals, the Messiah could not change the ideological makeup of the high court in replacing either or both of them.

When the Senate Democrats were engaging in their blocking tactics vis-a-vis George W. Bush's judicial nominees, Senator Mitch McConnell (R-KY), now the minority leader, warned that the tables would be turned one day, and that the Republicans could play the same game. Let's hope that he keeps his word.

For those of us who favor strict construction of the Constitution-- Justice Antonin Scalia calls it originalism-- it's scary to think of the kind of judges that a radical leftist like Obama will appoint. ~~ SR

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From Newsmax.com:

Former independent counsel Kenneth Starr said President Barack Obama is likely to face stern resistance from Republicans over his Supreme Court picks due to his opposition to George W. Bush’s nominees.

At a Feb. 13 lawyers’ conference in Boston, Starr noted that with four members of the Supreme Court in their 70s and Justice John Paul Stephens now 88, Obama could make two or more selections for the high court.

But as a senator, Obama supported a filibuster against nominee Samuel Alito and voted against John Roberts’ appointment. Resentful Republicans could make bipartisan support for an Obama nominee extremely difficult, according to Starr, who investigated Bill Clinton’s Whitewater land transactions and the Monica Lewinsky scandal.

Starr said in remarks reported by the Washington Times: "There is one historical factoid of note: [Obama] is the first president of the United States ever in our history to have participated in a Senate filibuster of a judicial nominee. Never before has that happened."

Starr quoted from an earlier Times article about the problems Obama faces, which pointed out that his "voting record and long simmering resentments over Democrats’ treatment of President Bush’s nominees will leave Mr. Obama hard-pressed to call for bipartisan help confirming judges or even an up-or-down vote."

In addition to the Supreme Court, the Senate must confirm presidential nominees to the 179-judge federal circuit courts of appeals and the 678-judge U.S. district courts.

U. S. Divorce Agreement

"It does not take a majority to prevail... but rather an irate, tireless minority, keen on setting brushfires of freedom in the minds of men."
~~ Samuel Adams

Dear American liberals, leftists, social progressives, socialists, Marxists and Obama supporters, et al:

We have stuck together since the late 1950s, but the whole of this latest election process has made me realize that I want a divorce. I know we tolerated each other for many years for the sake of future generations, but sadly, this relationship has run its course. Our two ideological sides of America cannot and will not ever agree on what is right so let's just end it on friendly terms. We can smile and chalk it up to irreconcilable differences and go our own way.

Here is a model separation agreement:

Our two groups can equitably divide up the country by land mass, each taking a portion. That will be the difficult part, but I am sure our two sides can come to a friendly agreement. After that, it should be relatively easy! Our respective representatives can effortlessly divide other assets, since both sides have such distinct and disparate tastes.

We don't like redistributive taxes so you can keep them. You are welcome to the liberal judges and the ACLU. Since you hate guns and war, we'll take our firearms, the cops, the NRA and the military. You can keep Oprah, Michael Moore and Rosie O'Donnell (You are, however, responsible for finding a bio-diesel vehicle big enough to move all three of them).

We'll keep the capitalism, greedy corporations, pharmaceutical companies, Wal-Mart and Wall Street. You can have your beloved homeless, homeboys, hippies and illegal aliens. We'll keep the hot Alaskan hockey moms, greedy CEOs and rednecks. We'll keep the Bibles and give you NBC and Hollywood .

You can make nice with Iran and Palestine and we'll retain the right to invade and hammer places that threaten us. You can have the peaceniks and war protesters. When our allies or our way of life are under assault, we'll help provide them security.

We'll keep our Judeo-Christian values.. You are welcome to Islam, Scientology, Humanism and Shirley MacLaine. You can also have the U.N.. but we will no longer be paying the bill.

We'll keep the SUVs, pickup trucks and oversized luxury cars. You can take every Subaru stationwagon you can find.

You can give everyone health care if you can find any practicing doctors. We'll continue to believe health care is... not a right. We'll keep the 'Battle Hymn of the Republic' and the National Anthem. I'm sure you'll be happy to substitute 'Imagine,' 'I'd Like to Teach the World to Sing,' 'Kumbaya,' or 'We Are the World.'

We'll practice trickle down economics and you can give trickle up poverty your best shot. Since it so often offends you, we'll keep our history, our name and our flag.

Would you agree to this? If so, please pass it along to other like minded liberal and conservative patriots and if you do not agree, just hit 'delete.' In the spirit of friendly parting, I'll bet you ANWR which one of us will need whose help in 15 years.


Sincerely,

John J. Wall
Law Student and an American

P.S. Also, please take Barbra Streisand & Jane Fonda with you.

California Budget Fight Helps "Open Primary" Prospects

UPDATE FROM BALLOT ACCESS NEWS: "According to this Los Angeles Times story, the California budget deal means that the voters of California will vote in June 2010 on whether to install the Washington state-style “top two” [system]. This is bad news; my earlier post had believed the ballot question would match ACA 6, a Louisiana-style system that only applies to state office."

Here's the state constitutional amendment that will go on the June 2010 ballot. Note that it applies to congressional elections as well as state offices.

FURTHER UPDATE: Richard Winger has another excellent post on the "top two" proposal. Certain aspects of it run afoul of the First Amendment and U. S. Supreme Court precedents. The Los Angeles Times has an op-ed on the pros and cons of the "top two."

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Ballot Access News is reporting that a measure for nonpartisan elections-- popularly called "open primaries"-- for state offices will apparently be put on the California ballot. This was one of the promises that Senator Abel Maldonado, a nominal Republican, extracted in return for his vote for the state budget.

The Golden State has had "open primaries" for county and municipal offices for nearly 100 years. The system proposed for state elections would work like Louisiana's system for state and local elections, and Richard Winger describes the difference between that system and Washington state's "top two": "All voters will get the same ballot, and that ballot will contain the names of all candidates [including independents]. The ballot will contain the party membership of each candidate. Based on past experience with the blanket primary, in 85% of all California state elections, one person gets [50%-plus] of the vote in [the first round of] such elections. When no one gets 50%, there will be a run-off in November between the top two vote-getters."

[... .]

"Note that [California's] ACA 6 system is not the same as the “top-two” system used in Washington state. In Washington state, the first round is not an election, because no one can be elected in the first round. In Washington, the first round [in August] is merely a ballot access barrier. All elections in Washington are in November."

In other words, there is always a second round of voting in the Washington "top two," even if one candidate gets 50-plus percent in the first round. Washington, incidentally, is the only state that also uses this nonpartisan system for its congressional elections.

I have been predicting that the proposed constitutional amendment, ACA 6, will fail in the California assembly, and an "open primary" initiative will instead reach the ballot. But Richard seems to think that the assembly will approve ACA 6 and place it on the ballot: "It seems likely the voters will vote “Yes”, because popular opinion in California is extremely negative toward state government just now, because of the longstanding dispute over the state budget."

In November 2004, 54 percent of California voters said "No" to an "open primary" initiative, as Prop. 62 lost in 51 of the state's 58 counties.

It should also be noted that California, like Louisiana, registers voters by party, but Washington state does not.

Here's a good analysis of the "top two" election system, including its effects on small parties.

A Mugging In Savannah

Posted to Craig's List Personals:

To the Guy Who Mugged Me Downtown (Savannah)
Date: 2009-01-06, 3:43AM EST

I was the white guy with the black Burberry jacket that you demanded I hand over shortly after you pulled the knife on me and my girlfriend. You also asked for my girlfriend's purse and earrings. I hope you somehow come across this message. I'd like to apologize.

I didn't expect you to crap in your pants when I drew my pistol after you took my jacket. Truth is, I was wearing the jacket for a reason that evening, and it wasn't that cold outside. You see, my girlfriend had just bought me that Kimber 1911 .45 ACP pistol for Christmas, and we had just picked up a shoulder holster for it that evening. Beautiful pistol, eh?

It's a very intimidating weapon when pointed at your head, isn't it?

I know it probably wasn't a great deal of fun walking back to wherever you'd come from with that brown sludge flopping about in your pants. I'm sure it was even worse since you also ended up leaving your shoes, cellphone, and wallet with me. I couldn't have you calling up any of your buddies to come help you try to mug us again. I took the liberty of calling your mother, or "Momma" as you had her listed in your cell, and explaining to her your situation. I also bought myself some gas on your card. I gave your shoes to one of the homeless guys over by Vinnie Van Go Go's, along with all of the cash in your wallet, then I threw the wallet itself in a dumpster.

I called a bunch of phone sex numbers from your cell. They'll be on your bill in case you'd like to know which ones. Alltel just shut down the line, and I've only had the phone for a little over a day now, so I don't know what's going on with that. I hope they haven't permanently cut off your service. I could only get in two threatening phone calls to the DA's office with it. Oh well.

So, about your pants. I know that I was a little rough on you when you did this whole attempted mugging thing, so I'd like to make it up to you. I'm sure you've already washed your pants, so I'd like to help you out. I'd like to reimburse you for the detergent you used on the pants.

What brand did you use, and was it liquid or powder? I'd also like to apologize for not killing you and instead making you walk back home humiliated. I'm hoping that you'll reconsider your choice of path in life. Next time you might not be so lucky.

If you read this message, email me and we'll do lunch and laundry.

Peace!

~~ Earl G. Nash

"An armed society is a polite society. Manners are good when one
may have to back up his acts with his life." ~~ Robert A. Heinlein

The Messiah To Sign Porkapalooza On Tuesday

"... bureaucrats at Health and Human Services will electronically collect every citizen's complete medical records and determine appropriate medical care.

"... the bright side is: We'll finally be able to find out if Bill Clinton has syphilis -- all thanks to the stimulus bill!"

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by Ann Coulter | February 11, 2009

It's bad enough when illiterate jurors issue damages awards in the billions of dollars because they don't grasp the difference between a million and a billion. Now it turns out the Democrats don't know the difference between a million and a trillion.

Why not make the "stimulus bill" a kazillion dollars?

All Americans who work for a living, or who plan to work for a living sometime in the next century, are about to be stuck with a trillion-dollar bill to fund yet more oppressive government bureaucracies. Or as I call it, a trillion dollars and change.

The stimulus bill isn't as bad as we had expected -- it's much worse. Instead of merely creating useless, make-work jobs digging ditches -- or "shovel-ready," in the Democrats' felicitous phrase -- the "stimulus" bill will create an endless army of government bureaucrats aggressively intervening in our lives. Instead of digging ditches, American taxpayers will be digging our own graves.

There are hundreds of examples in the 800-page "stimulus" bill, but here are just two. ... Read more>>>>

Bill for Party Registration in Tennessee

UPDATE - 2/17/09 - I've just learned that current Tennessee law requires the parties to hold primaries for governor, the legislature, and Congress. But for other partisan offices, a party may use a primary or any other method of nomination.

Tennessee, like Mississippi, requires political parties to open their primaries to any registered voter. There has recently been some controversy regarding Tennessee's primaries, and an east Tennessee blogger has an informative post on the Volunteer State's primary system and a legislative bill for party registration:

"Tennessee House Republican Whip Debra Maggart has introduced a bill that would close our partisan primaries in Tennessee to those people who identify themselves in their voter registration as a member of the Republican or Democratic party. ..."

"... As voluntary associations, our political parties have every right to determine how they shall nominate candidates for public office, and who participates in that nominating process. If parties determine that a primary is the best way to choose candidates, then a party has the right to keep its primary a 'members only' affair so that Republicans nominate Republicans, and Democrats choose the nominees of their party. ..."

Here's my commentary on the post:

States have the authority to tell political parties which nomination method(s) to use. Almost all states require parties to nominate by primary, and all of those states pay the costs. In 1995, the 8th U. S. Circuit Court of Appeals said that, when a state mandates that parties hold primaries, the state must cover the expense of those primaries (Republican Party v. Faulkner County [Arkansas]).

In 1986, the U. S. Supreme Court gave parties the right to invite independents to vote in their primaries (Tashjian v. Connecticut Republican Party). Hence the part of the Tennessee bill forbidding independents from voting in primaries is unconstitutional.

In 2005, in a suit brought by the Oklahoma Libertarian Party, the Supreme Court said that a state MAY prohibit parties from inviting members of opposing parties to vote in their primaries. Clingman v. Beaver (The majority opinion was written by Justice Clarence Thomas, and I strongly disagree with his conclusion. He was also highly critical of the Tashjian decision and came close to overturning it.)

I'll be surprised if the Tennessee bill for party registration is enacted. 29 states and the District of Columbia now register voters by party. In the last 20 years, though, only Rhode Island and Utah have adopted party registration.

There's a federal lawsuit pending against Idaho's state-mandated open primary. The U. S. District Court in Boise will hear oral argument in the case on February 18 (Idaho Republican Party v. Ysursa, 08-cv-165).

In December 2007, in a suit brought by a local unit of the Virginia Republican Party, the 4th U. S. Circuit Court of Appeals in Richmond ruled that, when a party is forced to nominate by primary, the party decides who votes in that primary (Miller v. Cunningham).

In June 2007, a U. S. District Court held that Mississippi's state-mandated open primary is unconstitutional. However, in May 2008, the 5th U. S. Circuit Court of Appeals in New Orleans dismissed the suit on procedural grounds (Mississippi Democratic Party v. Barbour).

Party Kicks House Speaker Out

Last November, the Republicans won their first majority, 50-49, in the Tennessee House of Representatives since 1869. The state GOP has a rule that the party chairman may expel from the party any legislator who fails to support the party's nominees for leadership positions. Last month, the Republican Kent Williams joined the 49 Democrats and voted for himself for speaker instead of the GOP nominee; he also voted for the Democratic nominee for speaker pro tem.

"State Republican Party Chairman Robin Smith [a woman] today ousted new Tennessee House Speaker Kent Williams from the party..."

"Williams said afterward that... he's likely to run for re-election to the House next year as an independent."

Speaker Williams also said that he still considers himself a "Carter County Republican." Unless the GOP changes its mind about his status, he would have to run in 2010 as either an independent or a Democrat.

Ballot Access News says that Williams is probably the first independent to head a state legislative body in the U. S. since before World War I.

The Republicans hold a 19-14 edge in the Tennessee Senate (note that that state has 33 senators and 99 representatives. Mississippi, with a considerably smaller population, has 52 senators and 122 representatives).

Of the 13 standing House committees, Williams named Republicans to chair seven and Democrats to chair six.

Tennessee, like Mississippi, is among the 21 states that do not register voters by party.

Signs Of Spring

It will soon be springtime in Jackson. The sun will be shining... the grass will be growing... the trees will be green... the flowers will be blooming... the birds will be chirping...

... and Harvey Johnson Jr. will be running for mayor. Yes, Harvey, a candidate in every mayor's race since 1993, will be putting his 2-2 record on the line:

"Johnson made the announcement [on January 31] in front of a crowd of about 100 people at the downtown Convention Complex. As a two-term mayor, Johnson helped bring the convention center to Jackson[1]."

In 1985, the year that Jackson changed from the commission form to the mayor-council system of government, Harvey lost a race for the city council to Louis Armstrong. Armstrong, of course, is now a felon and serves in Mayor Frank Melton's administration (Armstrong has presumably given Melton some pointers for his trial, which starts next week).

Harvey Johnson's decision to run again reportedly came after a four-year study was done by an out-of-state consulting firm.

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[1] Which reminds me: Now that the convention center has been completed, how much longer will we have to pay the "temporary" extra one-cent sales tax at Jackson's eating establishments? Pardon my cynicism, but "temporary" and "tax" are not usually included in the same sentence.

Primaries in Idaho and Other States

Ballot Access News has a post on the Idaho Republican Party's pending suit against that state's open primary law. The GOP wants to be able to enforce its rule that prohibits non-members from voting in Republican primaries. A commenter named Allen says that, if there was party registration, he could register as a Republican, vote in the GOP primary, and then vote for his "main choices" in the November general election. Presumably, his "main choices" would not necessarily be the Republican nominees.

The difference is that a voter is not helping to choose a party’s nominees in the general election.

The point is that, with party registration, a voter signs a piece of paper affiliating with a party. I, for example, have voted in many Democratic primaries, but I would never, ever sign anything stating that I am a Democrat.

While registering voters by party is the most practical way of identifying voters’ party preferences, there are other ways of doing so, one of which I noted in my earlier post. Here’s another method: Assuming that state law does not mandate open primaries, a party could poll all registered voters in the state on their party preferences and use the results of that poll to determine which voters the party wanted to invite to participate in its primaries.

In New Hampshire, registered independents may re-register with a party at the polling place and then vote in that party’s primary. On leaving the voting booth, such a voter may immediately switch his registration back to independent status if he so wishes.

Rhode Island has the same setup, except that the voter's change back to independent status takes effect 90 days after the primary.

Iowa has party registration AND open primaries. A registered Democrat may switch his registration to Republican at the polling place and vote in the Republican primary, and vice versa.

In Utah, which has party registration, the Republicans invite independents to vote in GOP primaries. The Democrats, on the other hand, invite all voters-- even registered Republicans-- to participate in Democratic primaries.

Homegirl Wins Again On 'Jeopardy!'

Gail Flemmons of Clinton, Mississippi, a history teacher at Hillcrest Christian School in Byram, on Thursday became a two-day winner on the game show 'Jeopardy!'

Going into 'Final Jeopardy!,' she was in third place. The category was "American Fiction Writers," and the question was about Damon Runyon also being the best-paid sportswriter of his time. Gail got it right, while her two male opponents missed it (yours truly, on a lucky guess, also got it correct).

Her two-day winnings total $46,399. She could, in my view, do even better if she were faster on ringing in, as her opponents have frequently beaten her there. She will strive to become a three-day champion on Friday. The 'Jeopardy!' rules now limit a contestant to a maximum five days of wins.

Interesting that the name of her school is not mentioned. I'm assuming that that is the show's policy for all school teachers who are 'Jeopardy!' contestants.

Idaho Republicans Stick With Suit Vs. Open Primary Law

Since 1972, Idaho has had a primary election law similar to Mississippi's, which forces a political party holding a primary to let any registered voter participate in that primary. On Saturday, January 31, the state Republican Central Committee-- the party's governing body-- reaffirmed its support of the party's lawsuit challenging the primary law (Idaho Republican Party v. Ysursa, 08-cv-165).

"That would mean voters would have to register as Republicans in order to vote for Republican candidates in the primary – excluding voters who aren’t a member of the party from voting in the Republican primary.

"This past summer, Republicans voted at the GOP state convention to maintain the 37-year-old open primary - but this latest decision overrides that."

The vote at the convention was 199-192 in favor of the current law, but the state central committee obviously has the final say-so.

Registering voters by party is certainly the most practical way to identify citizens' party preferences. But if (1) the Republicans ultimately succeed in having the law struck down, and (2) the legislature refuses to enact party registration, there is another way that the Republicans could block non-Republicans from GOP primaries. They could require voters requesting a Republican ballot on primary day to sign a statement declaring their affiliation with the Republican Party.

The Republicans have adopted a rule that only party members may vote in Republican primaries, which, to be sure, clashes with the state law.

"A federal court date is scheduled on the issue later this month.

The U. S. District Court in Boise is slated to hear oral argument on February 18. Notably, there are three separate motions for summary judgment in the case.

The Mississippi Democratic Party has challenged our state's open primary law, and U. S. district judge Allen Pepper ruled the law unconstitutional in June 2007. In May 2008, however, the 5th U. S. Circuit Court of Appeals in New Orleans dismissed the lawsuit on procedural grounds (Mississippi Democratic Party v. Barbour).

A local unit of the Virginia Republican Party also brought suit against that state's open primary law. In December 2007, the 4th U. S. Circuit Court of Appeals in Richmond held that, when the party is required to nominate by primary, the party decides who is eligible to vote in that primary (Miller v. Cunningham). That ruling was not appealed to the U. S. Supreme Court.

Sooner or later, a suit involving a state-mandated open primary will reach the Supreme Court, and when it does, I believe that the high court will strike down that law.