David Bowen on the "Open Primary"

David Bowen commented on the results of recent primary elections, including California's passage of Proposition 14, which would impose a "top two open primary" for state and congressional elections.

Bowen, who hails from the Mississippi Delta town of Cleveland, was a member of the U. S. House from 1973 to 1983. One of the Boll Weevil Democrats-- predecessors of the Blue Dogs-- he voted for President Reagan's income tax cuts. Prior to his House service, Bowen was part of the administration of John Bell Williams, governor from 1968 to 1972.

"... Proposition 14... could lead to the obsolescence of political parties. ... party primaries will be terminated next year, replaced by a single wide-open election, with the top two candidates facing each other in the [runoff]."

If Prop. 14 is upheld, the "open primary" will first be used in 2012. There will continue to be party primaries for president.

"This is similar to the open primary system in Louisiana and identical to the 'top two' system in Washington state, both of which have been upheld by federal courts."

The misinformation contained in the last part of that sentence was spread widely during the recent California campaign. The U. S. Supreme Court said in 2008 that Washington's "top two" is constitutional on its face, but the justices left the door open for an as-applied challenge. Now that the state has used the "top two" once-- in 2008-- it is facing a trial in U. S. district court in November 2010, as well as future litigation in the 9th U. S. Circuit Court of Appeals.

There have been two lawsuits involving Louisiana's "open primary," neither of which challenged the overall system. The more notable suit, Foster v. Love, concerned the timing of congressional elections. That case caused the state, in 1998, to change to a November/December format for its congressional elections.

The basic difference between the Louisiana system and the Washington/California systems is that Washington and California will always have a runoff; hence it's possible for a candidate who gets 50-plus percent in the first round to be defeated in the runoff. This-- along with other aspects-- casts doubt on the constitutionality of the Washington and California systems. Unlike in Louisiana, no one can be elected in the first round; rather, the purpose of the first round is merely to winnow the field to two candidates.

Washington permits write-in votes, but California and Louisiana do not.

"Mississippi has never been allowed by the Justice Department or the federal courts to establish such a system, because of a discriminatory application of the Voting Rights Act of 1965."

In 1971, the three-judge federal panel did not have the authority to order the "open primary" to be put into operation.[1] The Department of Justice (DOJ) mainly rejected the "open primary" in 1976 and 1979 because the Magnolia State, unlike Louisiana, had a recent history of black independent candidates. Another advantage that the Bayou State had in winning the DOJ's approval in 1975 was the considerable charm of Governor Edwin Edwards.

Mississippi's "open primary" was also stymied by the vetoes of two governors, Paul Johnson Jr. in 1966 and Bill Waller Sr. in 1975.

"[Prop. 14 was] bitterly opposed by hard-core Democratic and Republican party loyalists."

It was also opposed by California's four small parties, since it will ultimately destroy the small parties. The final choice in the "top two open primary" is almost always one Democrat and one Republican, two Democrats, OR two Republicans. It's amazing that so many independents support this concept, since they will rarely have the opportunity to elect an independent to office.

"Proposition 14... is designed to bring the middle back into American politics..."

In the states where the "top two open primary" has been tried, there is no evidence of greater moderation. Louisiana, e. g., has used it since 1975, and the politicians there certainly are not more "centrist" than they were pre-1975.

"... we shall watch with great interest to see if this new model of electoral reform will spread across the nation."

"New" and "reform" are not words that fit the "top two open primary." As far back as 1915, 58.2 percent of California voters defeated such a proposal. In 2004, Prop. 62 lost in 51 of the state's 58 counties.

North Dakota voters rejected a similar proposition in 1921, and 66 percent of Oregon voters said "no" to Measure 65 in 2008. And I've already mentioned the five times between 1966 and 1979 that the Mississippi legislature passed the "open primary" in vain.

Bowen takes potshots at the "anti-tax crusade;" he even includes a quote from Oliver Wendell Holmes, a liberal from the People's Republic of Massachusetts.

Any citizens who consider themselves to be undertaxed are free to make additional contributions to the local, state, and federal treasuries.

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[1] Evers v. State Board of Election Commissioners, 327 F.Supp. 640