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Free Citizen

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

Location: Jackson, Mississippi, United States

Friday, September 04, 2009

Ruling on Mississippi-Style Primary System

Ballot Access News is reporting that a federal district judge has ordered a trial in the Idaho Republican Party's lawsuit against the state-mandated open primary.[1] The party wants to be able to enforce its rule that says only party members may vote in GOP primaries.

"The trial is needed to determine if 'the open primary subjects the Republican Party’s candidate-selection process to persons wholly unaffiliated with the party.'"

"Idaho is one of the 21 states [including Mississippi] in which the voter registration form does not ask voters to choose a party."

The Associated Press says: "The decision could affect the 2010 Legislative session and the primary election, so [Judge B. Lynn] Winmill said he would move the case forward as quickly as possible."

The judge certainly has not moved the case quickly thus far. He heard oral arguments last February, and one would think that, if he was going to order a trial, he would have done so months ago. Regardless of how Winmill rules, there will likely be an appeal to the 9th U. S. Circuit Court of Appeals. If he declares the open primary law unconstitutional, don't be surprised if the ruling is stayed, thus allowing next year's primaries to be conducted under the current setup.

"The Idaho GOP has... argued that the open primary system violates the First Amendment right to free association because it forces Republican Party members to associate with nonmember voters."

Almost all of the U. S. Supreme Court's (SCOTUS's) reasoning in California Democratic Party v. Jones (2000), which the Idaho GOP cited, also applies to the state-mandated open primary. For example: Political parties have "the freedom to identify the people who constitute the association, and to limit the association to those people only."

One of the attorneys opposing the Republicans said, "... the position the Republican Party took in this litigation is that the mere existence of an open primary in and of itself violates their rights. What the judge is saying is, 'Until you can come forward with some actual proof that you've been harmed by the open primary in Idaho, I'm not going to grant that...'

That's certainly not the stance that the SCOTUS took in the California case. The high court said that one election under that primary system could do significant damage to a party.

I'm wondering whether the Idaho Republicans also cited Miller v. Cunningham (2007), which was brought by a local unit of the Virginia Republican Party against the state-mandated open primary. In that case, the 4th Circuit ruled that, when a party is forced to nominate by primary, the party-- not the state-- decides which voters are eligible to participate in that primary.

Washington state, like Idaho, does not register voters by party. In the California case, evidence was presented regarding crossover voting in Washington. The Idaho Republicans will presumably be able to furnish such evidence as well (Reed v. Democratic Party of Washington State [2004] followed the California precedent in striking down Washington's similar primary system).[2]

Betsy Russell has interesting posts on today's ruling here and here in the Spokesman-Review of Spokane, Washington.

Click here to see Judge Winmill's decision.


[1] The state requires any party holding a primary to let any voter participate in it. Each voter picks a party on primary day.

[2] Winmill does not mention either Miller v. Cunningham or Reed v. Democratic Party of Washington State in his decision.


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