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Free Citizen

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

Location: Jackson, Mississippi, United States

Tuesday, April 13, 2010

Give-and-Take on the "Open Primary"

This is my latest exchange with Jim Riley of Texas on issues related to Proposition 14,[1] which will be on California's June 8 ballots. Jim's remarks are italicized.


“There were no formal nominations [before there were government-printed ballots]…”

The parties in many places held conventions or caucuses to choose their candidates. In 1842, when the convention system became unwieldy for the Democrats of Crawford County, Pennsylvania, the party began using “primary meetings.” This featured secret balloting by party members and was the beginning of the direct primary election.

“After introduction of the Australian [state-printed, secret] ballot, beginning in 1888 and being universal by about 1920…”

Louisville, Kentucky was first to use the Australian ballot in 1880. By 1892, it was required by 3/4 of the states containing 72% of the people. By 1896, after its adoption by New York, the Australian ballot was used by 9/10 of the states with 92% of the people.

“… since the 1944 Smith v. Allwright decision [party primaries] have been recognized as being an integral part of the election process.”

The U. S. Supreme Court recognized that fact in 1941 in U. S. v. Classic. This ruling was prompted by a vote fraud case in the Democratic primary in a New Orleans U. S. House district (the Democratic primary was then tantamount to election). Hale Boggs, father of ABC's Cokie Roberts, was running against the Long machine.

Louisiana’s “top two” (“open primary”), incidentally, is part of the residue of that old one-party (truly NO-PARTY) system, in which elections were decided in the Democratic primary, with a Democratic runoff if necessary.

“… it is quite lawful for states to hold preliminary elections before November, so long as the final choice is made in November.”

From circa 1998 until 2006, Louisiana held the first round of its “open primary” for Congress on the first Tuesday in November, with the runoff in December if necessary. A series of federal court rulings has effectively said that that November ballot for Congress cannot be limited to just two candidates.

Thus the Washington state “top two” and California’s Prop. 14 (“top two open primary”), as applied to congressional elections, are almost certainly unconstitutional.


[1] This measure would abolish compulsory party primaries and put all candidates, including independents, on a single ballot. The top two vote-getters, regardless of party, would proceed to the runoff.


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