Judicial decisions could reshape the way Southern states choose candidates

By Tom Baxter
Editor
Southern Political Report

(10/4/07) Traditionally, courts have been reluctant to pass judgment in matters having to do with how parties select their candidates. But by slow degrees, the courts have been drawn into this arena, and the body of case law that is building stands to have a much bigger impact on politics in the South than is generally recognized.

The lynchpin case which began this drift was Democratic Party of California v. Jones, decided by the U.S. Supreme Court in 2000.

California had passed a ballot initiative changing its system from a closed primary to what was called a “blanket primary” system. Under the new rules, every primary ballot contained the names of every candidate from every party, and voters could pick and choose who they wanted. You could vote for a Democratic gubernatorial candidate, even if you were a Republican, and if you wanted to vote for a Libertarian candidate for lieutenant governor you could do that too.

The high court ruled that system violated the First Amendment right of free association. It forced the parties to have their nominees chosen by voters who might not belong to their organizations, and might even be hostile to them, Justice Antonin Scalia wrote in the 7-2 majority opinion.

That might seem like an isolated case with few implications – a way-out California idea that didn’t pass judicial muster. But Supreme Court decisions never occur in a vacuum.

Last June, Federal District Judge W. Allen Pepper Jr. ruled in a Mississippi case in which the circumstances were much different. Mississippi, unlike California, doesn’t have party registration. But the executive committee of the state Democratic filed a suit claiming that voters who were really Republicans were unduly influencing Democratic primaries. (It’s not an incidental aspect of this case that the Democrats who brought this suit were black, and the voters crossing party lines were white.)

Judge Pepper, cognizant of Democratic Party of California v. Jones, ruled in their favor, but in a manner which hasn’t suited anybody. In order to determine who was a Democrat and who was a Republican, he said, the state would have to institute party registration. And in order to determine at the polls that everybody was who they said they were, it would also have to have a voter ID system.

The Mississippi Republican Party has announced it’s going to appeal the inclusion of its primaries in the voter registration mandate, the state Democratic Party and the NAACP have appealed the voter ID requirement, and the whole messy case is headed for the 5th U.S. Circuit Court of Appeals.

Again, there could be larger implications. In the South, only Florida, Kentucky, Louisiana, North Carolina and Oklahoma have voter registration laws. The rest of the states in the region potentially could find themselves in the same situation as Mississippi, which may have to re-register all 1.7 million of its voters by next August. (Thanks, by the way, to Rhodes Cook, publisher of the Rhodes Cook Letter, for helping us run down the list of states with registration laws.)

It doesn’t end there.

Last Monday, the U.S. Supreme Court heard arguments in a case involving a challenge to Washington State’s “top-two” primary system, which was passed three years ago but has been in court ever since. Under this system, voters can choose whoever they want in the primary, regardless of party, and the top two vote-getters advance to the general election, even if they are members of the same party.

If that sounds vaguely familiar, sprinkle a little Tabasco sauce on it and it should come clear.

Washington State’s 21st Century innovation is, for all practical purposes, identical to the open primary system which Louisiana has employed for more than three decades. And if the court strikes it down – with Democratic Party of California v. Jones as precedent -- Louisiana’s system would “absolutely” be open to challenge, said Erwin Chemerinsky, a constitutional law expert at Duke University Law School.

“What the courts are saying is that if governments want to have nonpartisan elections, they can have nonpartisan elections. But if governments are going to allow candidates to run with party labels, then there has to be a mechanism for the parties to choose who their candidate will be,” Chemerinsky said.

Ironically, this tightening of the rules is occurring at a time when a growing percentage of the population doesn’t identify with either party, driving down turnout in both primary and general elections. The California and Washington State laws were each designed as remedies to this troubling trend. But things haven’t turned out the way the election innovators expected.