“Free Citizen” Blog Says South Carolina Republican Party Will File New Lawsuit to Gain Closed Primary for Itself

Steve Rankin’s Free Citizen blog has this news about the intention of the South Carolina Republican Party to file a lawsuit, arguing that the U.S. Constitution protects its desire to obtain a government-provided primary that is only open to Republicans.


Comments

“Free Citizen” Blog Says South Carolina Republican Party Will File New Lawsuit to Gain Closed Primary for Itself — 25 Comments

  1. Nominations for PUBLIC offices is PUBLIC business — NOT some sort of party hack business.

    P.R. and A.V. — NO primaries are needed.

  2. The U.S. Supreme Court disagrees with #1 in many decisions: Democratic Party of U.S. v La Follette (1981), Tashjian v Republican Party of Connecticut v Tashjian (1986), Eu v San Francisco County Democratic Central Committee (1989), California Democratic Party v Jones (2000), New York State Board of Elections v Lopez Torres (2008). Also the U.S. signed the Copenhagen Document of the Helsinki Accords, promising that U.S. laws would respect “a clear separation between the State and political parties.”

  3. Republicans – and 3rd parties – need the “independent” voter and are only “cutting off their nose to spite their face” when they insist on closed primaries to all except registered or enrolled party members.

    I have no problem with allowing a party to say only party members can “seek an office under the party label” but they need to encourage bonding with “independents.” Such “bonding” (over time)tends to make the “independent” continue his or her support for that party in the general election.

  4. South Carolina does not have provision for registration by party. How do they plan to make this work? Since both houses of the state legislature, the Governor, all other Constitutional offices except Superintendent of Education and the Court system are firmly in Republican hands I don’t know why they wouldn’t simply do this via legislation.

  5. Also, Mr. Rankin writes the following

    South Carolina is part of the 4th U. S. Circuit Court of Appeals, which has already ruled, in a Virginia case, that, when a party is forced to nominate by primary, the party– not the state– determines who is eligible to vote in that primary (Miller v. Cunningham).

    South Carolina does not, in fact, require that political parties nominate by primary, and the Republican Party’s decision to go to a primary system is fairly recent I believe. All ballot qualified political parties in South Carolina can choose to nominate by primary or by convention.

  6. #2 When a State incorporates party hacks in the process by which state officers are chosen, their authority is circumscribed. But a State need not incorporate party hacks into that process. I believe that the argument that DR is making is that they should not.

    Having a Stare maintain records of the political activities and beliefs of its citizens is going in the wrong direction.

  7. #2 The party hack Supremes are party hacks with their party hack thinking in all sorts of party hack *political* cases — now super sensitive due to the Bush v. Gore mess in 2000.

    Electors in the PUBLIC nomination process are PUBLIC electors.

    Since when can a large or small subgroup of all PUBLIC electors claim to have some sort of special powers in the PUBLIC nomination process ???

    See the EU case about the difference between PUBLIC stuff and internal party hack stuff.

    Sometimes even the party hack Supremes can make correct classifications of the LAW.

    As usual — the party hack nomination stuff goes back to the creation of *official ballots* in 1888-1890.

    The party hack Supremes may discover in some century that each election is NEW and has ZERO to do with any prior election — but do NOT bet your life savings on the issue.

  8. #4: It’s very difficult to get a state legislature to enact party registration, since most voters see it as a straitjacket and don’t want it. I understand there have been bills in the SC legislature for party registration.

    If the Republicans win their suit, the legislature should be more inclined to enact party registration. Democrats can be identified without party registration, but there’s no practical way to identify independents without it.

    The Virginia legislature has still not enacted party registration, despite the Virginia GOP winning its suit against the open primary law. At a recent nominating event for a special election for the state Senate, the GOP required voters to sign a loyalty pledge.

  9. #5: As I understand it, a party in SC may opt out of holding a primary when at least 75% of the delegates to the party’s convention vote that way. To my knowledge, neither major SC party has nominated by convention in recent years.

    Virginia provides its parties with several nominating options besides the primary; incumbents choose the method for their renomination. The 4th Circuit said that, when an incumbent forces a party to hold a primary, the party determines who is eligible to vote in that primary. However, the court reasoned that when a party voluntarily chooses a primary, it must be open to all voters; if the party wanted a closed nominating process, it has several such options.

    Thus the Virginia case may cause the SC Republicans some difficulty in their lawsuit.

  10. Steve,

    The first reference I can find to a South Carolina Republican primary is 1980, but that may be my lack of research skills.

    Here is the state law in reference to nominations:
    SECTION 7-11-10. Methods of nominating candidates. [SC ST SEC 7-11-10]

    Nominations for candidates for the offices to be voted on in a general or special election may be by political party primary, by political party convention or by petition;

    While I am agreeable to allowing each party to regulate their system of nominating candidates, and support registration by party, and hope to see the South Carolina Green Party conduct a primary some time soon, I find it difficult to see how the SCRP can claim that they cannot already accomplish their goal of a “Republican nomination without outside influence” using rules already in place.

    Again, they control every aspect of legislative and executive governance, barring one constitutional office. If they want to do this, it is entirely in their power to do so.

  11. The Idaho Republican Party has a federal lawsuit against the state-mandated open primary. However, the big majority of Republican elected officials are against the suit. And the overwhelmingly Republican legislature has several times refused to enact party registration.

    Officeholders are reluctant to change the process by which they were elected.

    BTW: As I’m sure you’re aware, Sen. Lindsey Graham (R) issued a statement criticizing the original SC suit against the state-mandated open primary.

    I’m sure the SC Republicans– and the Democrats too, for that matter– are reluctant to nominate by convention because grassroots voters would get upset with them. If all the candidates for a particular office were running under the same party label, and that party nominated by convention, grassroots voters would have no say-so in choosing that official.

  12. South Carolina doesn’t permit a voter to vote in the primary, or actively participate in other nominating activities, of more than one party so what is the point of having registration?

    South Carolina could let voters affiliate with a party when they vote or participate in a convention, and have that affiliation expire at the end of the election year.

  13. #13: Voters with a party preference can be identified without voter registration by party. But there’s no other really practical way of identifying independents.

    Currently, every state in which at least one party excludes some voters from its primaries has party registration. None of these states except Alaska lets voters participate in more than one party’s primary (in AK, the Democrats and minor party [ies] list their candidates on the same primary ballot).

    The purpose of party registration is to identify voters’ party preferences; it’s the most practical way of doing so.

  14. #14 How can you identify a Republican or Democrat without party registration? Because they say they are when they show up at the polls? The side they part their hair on?

  15. #15 part hair left = Donkey ?

    part hair right = Elephant ?

    NO hair = minor party or independent ?

  16. In a state with a history of “open primary, public record,” a party could require any voter who had voted in another party’s primary within a certain period of time to sign an oath of affiliation in order to vote in that party’s primary (this assumes that the open primary law has been repealed).

    Virginia Republicans recently held a “firehouse primary” to choose their candidate for a special state Senate election. The GOP required all voters to sign a loyalty pledge.

    In a state with a history of “open primary, private choice,” the party could require all voters to sign a loyalty pledge in order to vote in that party’s primary.

    As we’ve previously discussed, a party could poll all registered voters in the state to determine their party preferences, but that would be expensive.

  17. #17 Was that pledge in Virginia legally enforceable?

    It would hardly be any expense at all for a State to permit a party that wished to restrict participation in its nominating activities.

    Take a pick-a-party state like Idaho. A party could simply provide a list of voters who are permitted to vote to election officials. If a voter was not permitted to pick a party, then that choice would be disabled.

    So let’s say that Voter A was not permitted to vote in the Libertarian or Republican party primaries. On his ballot, he would still be permitted to pick between the Democratic, Green, and Constitution party ballots.

  18. #18: Apparently so. The VA Republicans announced that they would require a similar pledge in their 2008 presidential primary, but so many voters complained that the GOP backed off.

    The only nominating activity in which participation is difficult to restrict is the primary.

    Where would a party get such a list in an “open primary, private choice” state like Idaho?

    In an open primary state in which each voter’s choice of party on primary day has been publicly recorded, drawing up such a list would be no problem.

  19. But there’s no practical way that I know of to identify independents– other than voter registration by party. Which is why every state in which at least one party excludes some non-members from its primaries has party registration.

  20. #19 Where would a party get such a list in an “open primary, private choice” state like Idaho?

    A party that desired to restrict participation could require voters to apply with them so that they could compile the list.

    I think I outlined the procedure that the Idaho legislature could adopt:

    (1) Permit a state convention to adopt a resolution proposing limiting participation in its primary; The resolution would include the method by which the list of permitted voters would be compiled.

    (2) Conduct a referendum at the next primary on whether to implement limited participation.

    (3) If the referendum passes, begin compiling the restricted list. They could require voters to attend a precinct meeting, or apply at party HQ. Or they could distribute applications to voters, including new voters.

    The implementing law could provide standards for the electronic exchange of voter lists between the State and parties, and set basic standards.

    For example, the Republican Party could not exclude a voter solely because the Democratic Party would permit that voter to vote in its primary. A party could not discriminate on the basis of race or ethnicity, age, or sex. It could not charge a fee or dues (the courts would likely determine that this is a poll tax). A voter would be able to cast a provisional ballot if he erroneously believed that they were excluded.

    #20 The application could ask a voter if they were independent or not.

  21. #21: You’re asking the state and especially the party (ies) to jump through a bunch of hoops in order to avoid having the state register voters by party. It’s much simpler for the state to add a “party affiliation” box on the voter registration form, as 29 states and the District of Columbia now have.

    Again: Every state in which at least one party excludes some non-members from its primaries has voter registration by party.

    Iowa, which has party registration, has open primaries.

    In Utah, which has party registration, the Democrats have open primaries.

    In Alaska, which has party registration, the Democrats and minor party (ies) list all of their candidates on a single primary ballot (a blanket primary).

    In Louisiana, which has had party registration since 1908, the only party primaries are congressional and presidential primaries.

    The Idaho GOP, incidentally, has already adopted a rule that only party members may vote in the party’s primaries. In its suit against the state-mandated open primary, the party seeks authority to enforce this rule (Idaho Republican Party v. Ysursa).

  22. #21 The state would not have to jump through any hoops. Idaho would be empowering the political parties to determine which voters they would permit to vote in their primaries.

    Such an important constitutional matter as who may vote in a party’s primary, or whether they even want to have restrictions, is improper for an executive board or even a legislative body to determine.

    Imagine some Mississippians wanted to expand the franchise to include 16 YO. Would that be something for the governor to decree, or for the legislature to pass a bill? Of course not, don’t you agree? That is something for the People to decide.

    The State of Idaho has every right to regulate the manner in which a political party makes the determination of who votes in its primary.

  23. #23: Since 1972, Idaho has forced its political parties to let ANYONE vote in their primaries. The Republicans want to block non-members, hence the lawsuit.

    If the open primary law is struck down, the state will have the power to prohibit parties from inviting members of opposing parties into their primaries. If the state chooses not to exercise this power, a party can have an open primary if it wants one.

    Of course, under Tashjian, parties have the authority to invite independents into their primaries.

    To my knowledge, everywhere that there is not a state-mandated open primary, each party’s governing committee decides who is eligible to vote in the party’s primaries (this excludes situations where there are no party primaries). That seems to me to work just fine.

  24. #24 If the central committee of the Idaho Republican Party is successful in their lawsuit, I set out a procedure by which the State of Idaho could respect the US Constitution, while also respecting the Republican Party which is constituted by its members, not some executive functionaries.

    Idaho has the authority to let a political party identify which voters are permitted to vote in its primary, so long as the party does not violate the US Constitution (eg Terry v Adams, Smith v Allwright). A party may not compel a voter to vote in its primary; and it may not prevent a voter from voting in another party’s primary. Idaho may prevent a voter from voting in more than one primary.

    Idaho also has the authority to determine who constitutes a party for its purposes of recognition. Since it currently recognizes the electorate that votes in a primary as the authority for making nominations, it is reasonable for it also to recognize the party electorate to make the decision as to whether or not restrict participation in its primary. This is not a decision for the State of Idaho to make, nor for the Party Central Committee, or even the Party Convention, but the the party electorate.

    While the State of Idaho could simply defer to the whims of the party bosses, it doesn’t have to, and in my opinion it would be unwise for it to do so.

    So let’s go over the process again:

    (1) Party state convention proposes that primary participation be limited to certain voters, and drafts a proposed scheme for identifying those voters.

    (2) Voters in primary approve (or disapprove the plan).

    (3) Central or executive committee implements plan.

    It is entirely parallel to constitutional change by a State government. (1) Legislature proposes change; (2) Voters approve change; (3) Executive implements change.

    Your proposal appears to go like this: party executive goes to the State, and says we only want Republicans to vote in our primary. State says, fine, “who are the Republicans”. “They are the ones who aren’t Democrats”. “And who are the Democrats?”, they are the “Ones who aren’t Republicans”. The party executive studies his shoelaces intently, and suddenly burst outs, “You tricked me!, You should tell me who these Democrats are that I don’t want to vote in our primary.”

    I’m simply saying that Idaho should patiently respond, “take a sheet of paper and write the names of persons you would permit to vote in your primary. We’ll make sure that no other persons can vote in your primary. We can not compel the persons on your list to vote in your primary, nor prevent them from voting in another primary.”

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