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.