Louisiana "Open Primary" Bill in Compromise Committee

Louisiana has used a nonpartisan system-- popularly called the "open primary"[1]-- to elect its state and local officials since 1975. It also used this system for its congressional elections from 1978 through 2006 but then restored party primaries for Congress, starting in 2008. Now HB 292 would reinstate the "open primary" for congressional elections.

"At the urging of Rep. Hunter Greene, R-Baton Rouge, the sponsor of House Bill 292, the House voted 89-2 to reject changes made by Sen. Nick Gautreaux, D-Abbeville, in the Senate last week that would require the fall's [2010] elections to take place under the open primary scenario.

"His original House-passed bill would have set the open primary system for the 2012 congressional races. The six Republican members of the state's U. S. House delegation oppose the bill in its present form and prefer it to take effect with the 2012 elections.

"Greene said the U. S. Justice Department will have to approve the new election set-up and there is no guarantee it can be done on short notice.

"Whatever version emerges from the compromise committee has to be approved by both the House and Senate by the end of the session June 21."

Greene says that returning to the "open primary" for congressional elections will save the Bayou State about $6.6 million every two years.

My guess is that the change will take effect with the 2012 federal elections.

Washington state-- which calls it the "top two"-- is the only other state that uses a similar system to elect all of its state officials. And Washington, which first used it in 2008, is now the only state that uses it to elect its congressional delegation.

California will have a measure-- Proposition 14-- for a "top two open primary" on its June 8 ballots. This proposal is for the Golden State's congressional and state elections.

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[1] All candidates, including independents, are listed on a single ballot. The top two vote-getters, regardless of party, meet in a runoff. Under HB 292, the first round would be held on the first Tuesday in November, and the runoff would take place in early December.

Senator Robert Bennett Won't Run as a Write-in

Senator Robert Bennett, kept off the June 22 primary ballot by the Utah Republican endorsement convention, won't seek a fourth term as a write-in candidate.

"The deadline for running as an independent candidate passed in March, meaning a write-in campaign was Bennett's only option."

Ballot Access News says, "... that [March] deadline could probably be overcome in court. He also can’t get on the ballot in November as an independent because of the state’s sore loser law."

The "sore loser" law prohibits someone who has lost a party's nomination from then qualifying to run as an independent. According to Ballot Access News, "... a lawsuit against the sore loser law would probably lose, even though there has never been a precedent in which the 'sore loser' only lost at a convention, not at a primary."

Impending South Carolina Lawsuit

South Carolina, like Mississippi, has true open primaries, in which each voter picks a party on primary day. The attorney who will be bringing suit against South Carolina's state-mandated open primaries recently contacted me. Below is my reply to him.

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I read what the South Carolina Republican chairwoman said about filing the lawsuit during her term of office and am curious as to when her term ends.

As you probably know, the 5th U. S. Circuit Court of Appeals reversed the district court and dismissed Mississippi Democratic Party v. Barbour. The reason for this was that the Democratic Party had not adopted a rule for a closed primary. So I would suggest that the South Carolina Republican Party adopt such a rule before the suit is filed (which I imagine will be tough to do from a political and public relations standpoint).

As you probably also know, Ken Cuccinelli, who brought the first suit against an open primary law, is now attorney general of Virginia (this suit began as Miller v. Brown and ended as Miller v. Cunningham). Virginia, like South Carolina, has nominating option(s) other than the party primary. Virginia, unlike South Carolina, lets incumbents pick the method by which they run for renomination. The 4th circuit said that, when an incumbent forces a party to hold a primary, the party-- not the state-- decides who is eligible to vote in that primary. The court reasoned that if the party had a choice, and if it wanted a closed process, it could nominate by a method other than the primary.

I know that South Carolina also has the convention option. As I understand it, a 75 percent vote of the state convention is required for a party to nominate by convention instead of by primary. I would think that this state-mandated super-majority would work in your favor in getting the open primary law struck down.

Registration by party is not the big deal that many people think it is. Its purpose is to identify voters' party preferences, and it's the most practical way to do so. The main thing, of course, is to get the open primary law declared unconstitutional (the district judge in the Mississippi case said the open primary law was unconstitutional, but he went further-- erroneously, in my view-- and ordered both party registration and voter ID. This is the first and only time that any court has ordered either one.)

If the South Carolina Republicans only wanted to block Democrats from Republican primaries, they could, on primary day, require anyone who had voted in a Democratic primary within a certain period of time to sign an oath of affiliation-- or loyalty pledge-- in order to vote in the Republican primary (I'm assuming that South Carolina now publicly records primary voters' choice of party). However, if the Republicans wanted to block independents as well as Democrats, I don't know of any other practical way to identify independents besides party registration.

In the 2000 blanket-primary case-- California Democratic Party v. Jones-- on which the open primary suits have largely been based, there's no mention of party registration. Justice Scalia, quoting from another case, said that political parties have "the freedom to identify the people who constitute the association, and to limit the association to those people only."

Idaho Republican Party v. Ysursa, to be sure, was filed in April 2008 and is still in U. S. district court, since Judge Winmill decided that a trial is necessary. He may rule as early as September 2010 (Idaho does not have any nominating option other than the primary. As you may know, Michael Munger, a professor at Duke University, is the plaintiff's expert in that case, and he has found that 50-plus percent of self-identified non-Republicans have voted in at least one Republican primary.)

Speaking of party registration: Louisiana has registered voters by party since 1908, and yet that state did not have party primaries at all for many years-- other than presidential primaries.

Senator Robert Bennett May Run as an Independent

According to Ballot Access News:

U.S. Senator Robert Bennett of Utah has been running for re-election this year. Bennett failed to get [enough] support at last week’s Republican convention, and thus he cannot get on the June 22 primary ballot.

On May 16, CNN’s “State of the Union” public affairs TV show interviewed Bennett. Hostess Candy Crowley asked him, “When can we call you up and get an answer to the question of whether you’re going to run as an independent?” Bennett’s answer was, “As soon as I make up my mind, you will be the second to know.” Bennett was on in the second half of the show.

Utah requires an independent (for office other than President) to submit a petition by March 15. If Bennett decided to run for re-election as an independent, he would need to win a lawsuit against that deadline. Getting the signatures would be no problem if it weren’t for the deadline, because only 1,000 are needed. As noted in earlier posts about Bennett, five [federal court] circuits have invalidated deadlines for non-presidential independents that are as early as the deadline for candidates filing in a primary, and only one circuit has upheld such a deadline. Also the U. S. Supreme Court summarily affirmed a 3-judge district court against an April deadline in Arkansas, when the state's primary at the time was in May.

Utah also has a “sore loser” law (for office other than President), and Bennett would need to overcome that law also.[1] Although “sore loser” laws are constitutional for people who have lost a primary, there is no precedent on Utah’s type of "sore loser" law, which even applies to someone who has not run in a primary, but merely failed to get enough support at a preliminary party meeting.

Bennett is also free to be a declared write-in candidate in November. Elections officials would be horrified at the thought, however; write-in votes cost far more time and money to count than votes cast for someone on the ballot. Someone as popular as Bennett would, if he campaigned hard, undoubtedly receive tens of thousands, if not hundreds of thousands, of write-in votes.

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[1] A "sore loser" law prohibits a candidate who has lost a party's nomination from then qualifying as an independent in the general election.

Supremes Won't Hear Mississippi Case

From Ballot Access News:

On May 17, the U.S. Supreme Court said it won’t hear the Mississippi ballot access case, Moore v. Hosemann, 09-982.

The original issue in the Mississippi case was whether Brian Moore, Socialist Party presidential candidate, should have been on the November 2008 ballot.[1] His presidential elector paperwork had been submitted ten minutes past 5 p. m. The chances of this case being heard in the U. S. Supreme Court were probably diminished when the Mississippi legislature this year passed a bill, saying such paperwork is due at 5 p. m. (previously, the law set a date for the deadline, but not a time).

The U. S. Supreme Court has said that ballot access lawsuits are not moot just because the election is over. But this case had a different type of mootness problem. This year, after Moore had filed his brief with the U. S. Supreme Court, the legislature had fixed the law that had been complained about. The Court has never... taken any election law case in which the legislature has already fixed the problem complained about while the case was pending.

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[1] The Socialist Party is not ballot-qualified in Mississippi, so Moore, a Florida resident, was nominated here by the Natural Law Party. That was easier for him than qualifying for the Magnolia State's ballot as an independent.

New Yorkers May Vote on "Open Primary"

New York City may have a ballot measure in November 2010 for nonpartisan elections, which are popularly called "open primaries" in many places. The city's voters soundly rejected such a measure in 2003, despite Mayor Michael Bloomberg's strong support for it.

"In most nonpartisan election systems, all registered voters can cast a ballot for any candidate in the first round (which replaces a traditional party primary), and the top two finishers [regardless of party] compete in the second round. Boston, Los Angeles, Detroit and Dallas have adopted some form of it."

Ballot Access News reports, "Over three-fourths of the 20 largest cities in the U. S. have non-partisan elections, including Los Angeles, Chicago, and Houston. The largest city to have partisan elections, other than New York City, is Philadelphia."[1]

While a nonpartisan system reduces their role, the parties, to be sure, still have the First Amendment right to support candidates. The difference is that a party is not assured of having a candidate in the final round, where both candidates may be from the same party.

Some who opposed New York's 2003 referendum, including the Rev. Al Sharpton, are now reconsidering their positions. It seems to make a difference that Bloomberg is today an independent presumably serving his last term, whereas he was a first-term Republican in 2003.

Nonpartisan elections ("open primaries") for municipal and county offices would give Mississippi voters greater choice. In 2009, the capital city of Jackson had six candidates in the general election for mayor-- a Democrat, a Republican, and four independents-- making it possible for someone to be elected with less than 17 percent of the vote. A nonpartisan system, in contrast, would guarantee that the winner always got 50-plus percent.

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[1] In his book The Life of the Parties: A History of American Political Parties, A. James Reichley says, "In 1909 municipal reformers in Boston, allied with Republicans in the Massachusetts legislature, made Boston one of the first major cities to adopt nonpartisan city government. This example was soon followed by other cities, particularly in the West and South. By 1929, 26 of the nation's 36 largest cities held nonpartisan elections for local offices."

Politics in Georgia

Millionaire Ray Boyd, 67, wanted to run for governor of Georgia as a Republican; however, he refused to sign the loyalty pledge that the state Republican Party requires of everyone who runs in the GOP primary. Boyd, who calls himself a "Ronald Reagan Republican," now says he will run instead as an independent and will spend some $2 million of his own money on his campaign.

He will need to gather about 50,000 signatures by July 1. Any votes he gets in November can be expected to come out of the hide of the Republican nominee. There will also be a Libertarian draining votes from the Republican.

Ballot Access News says: "Southern Political Report has this story about Ray Boyd, who says he will be an independent candidate for governor of Georgia this year. ... . Georgia has not had an independent candidate for governor on the ballot since 1942. Before 1943, Georgia let any independent or minor party candidate get on the general election ballot with no petition, but Georgia has had extremely burdensome petition requirements for independents and minor parties ever since 1943."

Governor Ellis Arnall, who was elected in 1942, is often praised for lowering the Peach State's voting age to 18 in 1944 and for eliminating the poll tax. But I’m assuming that he also supported the restrictive petition requirements for independents and small parties.

Georgia, of course, was a one-party state back then, and the ruling Democrats apparently wanted as little non-Democratic competition as possible.

The late U. S. senator Herman Talmadge had some interesting things to say in his autobiography about Arnall, especially about his attempt to hold onto the governorship following the 1946 election (the "Two Governors' Row").

In his 1966 comeback bid, Arnall led the Democratic primary and then campaigned little in the runoff, which Lester Maddox won in an upset (the Republicans did not have a contested primary, and some observers believed that Republicans voted for Maddox in the Democratic runoff, thinking that he was the weaker candidate).

In the general election, a write-in campaign for Arnall drew enough votes to prevent either Maddox or the Republican Howard "Bo" Callaway from getting 50-plus percent. State law then specified that the legislature make the choice in such a situation; the heavily-Democratic legislature elected Maddox, despite his having finished second in the popular vote.[1]

Which is why Georgia is today the only state that has party primaries and runoff general elections.

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[1] Mississippi has a similar provision. To win a statewide state office outright, a candidate must (1) get 50-plus percent of the vote, AND (2) carry at least 62 of the 122 state House districts. Otherwise, the state House of Representatives chooses between the top two vote-getters.

Action Likely to Benefit McCain

Arizona registers voters by party, and state law says that independents may vote in either the Republican primary or the Democratic primary.[1]

The state Republican Party had been considering filing suit against the law, but the GOP recently gave up on the idea, at least for this year.

"While some members argue that Republicans should be choosing the party's nominee, state GOP spokesman Matt Roberts said the group decided to hold off until at least next year..."

This decision will presumably help U. S. senator John McCain in the August Republican primary. McCain is being challenged in the primary by former Congressman J. D. Hayworth, who is believed to appeal more to the staunch conservatives who are registered Republicans. McCain, on the other hand, has demonstrated a strong appeal to independents, both in Arizona and in other states' presidential primaries.

In 1986, the U. S. Supreme Court empowered parties to invite independents to vote in their primaries (Tashjian v. Republican Party of Connecticut). To my knowledge, however, Arizona is the only state other than Nebraska which mandates that parties let independents vote in their primaries. The law in the Cornhusker State only applies to primaries for the U. S. Congress, whereas Arizona's law covers primaries for state offices as well as Congress.

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[1] In 2007, the Libertarian Party, which sometimes has contested primaries, won an exemption from the law in U. S. district court (Arizona Libertarian Party v. Brewer).

Senator Robert Bennett Loses at Convention

Three-term U. S. Senator Robert Bennett failed on Saturday to get enough support at the Utah Republican Convention to advance to the GOP primary. Utah law says that, to be listed on the primary ballot, a candidate must get at least 35 percent of the delegate votes. If a candidate receives at least 60 percent at the convention, he is the nominee, and there is no primary.

"Mr. Bennett was eliminated from the Senate race in the second of three rounds of delegate voting. He finished third in the vote; only the top two advance to the final round."

Having only two candidates on the primary ballot ensures that the winner will get 50-plus percent without the necessity of a runoff (or second) primary.

"... businessman Tim Bridgewater and lawyer Mike Lee... will compete in a June 22 primary. Running on populist platforms, they both have backing from tea-party supporters..."

"Mr. Bennett [who'll turn 77 in September] can't run as an independent Senate candidate because the filing deadline to do so has passed. He told the Associated Press on Saturday that he hasn't ruled out running as a write-in candidate in November."

However, Ballot Access News asserts that "if he did wish to run as an independent, he could probably overturn the deadline in court.

"Many courts have ruled that independent petition deadlines, or even independent candidate deadlines for filing a declaration of candidacy, for non-presidential office, cannot be earlier than the primary (or the day before the primary)."[1]

Among the reasons given by delegates for opposing Bennett were (1) his vote for TARP funds to bail out banks; (2) his co-sponsorship, with Democratic senator Ron Wyden, an Oregon liberal, of a healthcare bill that included a requirement that individuals buy health insurance; and (3) the belief that Bennett has been in Washington too long.

This reminds me of the 1980 Hinds County Republican Convention, where U. S. Senator Thad Cochran was defeated for delegate to the state GOP convention. The convention was dominated by supporters of Ronald Reagan for president, and Cochran, along with Haley Barbour, was backing John Connally, the former Texas governor and U. S. Treasury secretary.

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[1] In presidential election years, Mississippi's qualifying deadline for all candidates for U. S. senator and U. S. representative is in January. This means that independent candidates must turn in their petitions by that date. A lawsuit challenging this deadline for independents would have an excellent chance of winning.

The Voice of God?

Another round in my "comments war" with Jim Riley of Texas. Jim's remarks are italicized.

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"... explain how non-majority elections with partisan candidates running against a fellow member of their party... are so useful."

You mean like Joe Lieberman in Connecticut and Charlie Crist in Florida (and, for that matter, Theodore Roosevelt vs. William Howard Taft in 1912)?

Only Louisiana and Washington state use the "top two open primary"[1] to elect all of their state officials; Washington alone uses it to elect its congressional delegation. The only other state that requires a popular majority (50-plus percent) to win a general election is Georgia.

Thus 48 states[2]-- unlike you-- do not consider the voice of the majority to be the Voice of God-- although the winners of most general elections do get 50-plus percent.

A number of U. S. presidents have been elected with less than 50 percent of the popular vote--Lincoln, Wilson, Nixon, Clinton... to name several.

"I don’t see what… is so significant about the 2.8% of the vote received by the Green Party candidate, or [the] Libertarian candidate who received 0.8% [in Louisiana's 2008 general election for one U. S. House seat]."

What’s significant about those candidates is that (A) they gave the voters more choices in the final, deciding election, and (B) their supporters were able to vote for their favorite candidate in that final election. Also, the Green Party and the Libertarian Party had their messages presented in the campaign in which the larger number of voters were paying attention.

Your beloved “top two open primary” would, in all likelihood, eventually cause the small parties to become extinct. Then the voters would also have fewer choices in the FIRST round. But let’s face it: You don’t give a damn about political parties anyway-- large or small.

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[1] All candidates, including independents, run in the same election. The top two vote-getters, regardless of party, advance to the runoff.

[2] Since Washington state permits write-in votes, it does not mandate 50-plus percent for a candidate to be elected. This leaves solely Louisiana and Georgia that do require 50-plus percent.