Louisiana Political Science Professor Jeffrey Sadow has this article posted at Bayou Buzz, a blog of Louisiana politics. Professor Sadow says when the Louisiana House recently voted for HB 292, it was because most members believed that “19 or 20” other states use the same system. They believed that, because that is what the author of the bill said on the debate on the bill. But, that is misinformation, as the post explains.
Ballot Access News
Edited By Richard Winger
As the article says, Georgia is the only other state in which it’s possible to have a congressional runoff in December. Georgia is the only state that has party primaries AND runoff general elections.
Washington state– which calls it the “top two”– first used its Louisiana-style system for state and congressional elections in 2008. The first round was in August, with the top two vote-getters advancing to the election on the first Tuesday after the first Monday in November.
Washington, unlike Louisiana, ALWAYS has a second round of voting. Thus it’s possible for a candidate who gets 50%-plus in the first round to be defeated in the second round. Another difference is that Washington allows write-in votes in both rounds. So, even though there are only two candidates on the second-round ballot, it’s possible for someone to be elected with less than 50% of the vote.
As the article notes, the Washington system is facing ongoing litigation, including a trial in U. S. district court next October (Washington State Republican Party v. Washington State and Washington State Grange).
California’s June 8 ballots will include Proposition 14, a measure for a Washington state-style “top two” for the Golden State’s congressional and state elections.
There is a series of federal court rulings that effectively say that the ballot for Congress on the first Tuesday in November cannot be limited to just two candidates. Hence the Washington state system and California’s Proposition 14, as applied to congressional elections, are almost certainly unconstitutional.
I should have said that Georgia is now the ONLY state in which it’s possible to have a December runoff, since the Louisiana bill has not been enacted.
I doubt most state legislators are this stupid in LA. They knew they were unique.
Legislators in Louisiana clearly understand the two systems. They were all elected under the open primary, and they also experienced the confusion in 2008, as voters were literally locked out from voting for their representatives in Congress.
If you are looking for something unconstitutional, it the use of the lockout devices to prevent voters who are qualified to vote for the state legislature from voting for congressional candidates (see Justice Stevens dissent and the meandering Part IV of Justice Marshall’s majority opinion in Tashjian).
It was simply incomprehensible to them that if they were meeting a constituent who happened to be a member of the other party, that they would tell them to go vote for whoever in the primary, and then come back a month later and vote for them.
In 2008, three representatives were elected without majorities. So you go through two rounds of party primaries to ensure that the candidate has majority support in the party, and then don’t bother in the general election. Or you skip the 2nd primary and end up with a candidate who has 20% support in his party.
There is no real evidence that election in December has any effect on seniority, other than perhaps petty things like offices or parking spaces. The Clerk of the House’s official seniority list makes no distinction other than when service actually begins, which is on January 3rd, except for those who are first elected in special elections.
If Louisiana is suffering any effect on seniority, it is because Rodney Alexander is the most senior House member, and he is only in his 4th term. Three members are in their first term, and another in his 2nd term, did not have a full first term. Of the next two most senior members, Charlie Melancon, in his 3rd term, is going to run for senator.
If you look at the committee assignments, the more senior members have better assignments (Alexander-Appropriations; Boustany-Ways&Means; Melancon-Energy; Scalise-Energy. The new members: Cassidy-Natural Resources; Fleming-Armed Services; Cao-Homeland Security).
Since Cassidy was elected in November, and Cao and Fleming in December, you ought to be able to tell if Cassidy got anything more than a early pick on office space. Any prime spots are going to be taken by those with more terms of seniority. At best you might have some 7th-tier offices available that those who had 8th tier offices didn’t want to bother with the hassle of moving.
The briefs of the political parties do not mention anything about the uniform congressional election date. They do make a more general ballot access claim, but Judge Coughenour has already dismissed that claim. He did acknowledge the parties did have a legal right of appeal – which certainly does not imply that the claim has any merit.
And even if the date of the open primary was in error, it could be remedied, just like happened in Louisiana. After the Supreme Court decision in Foster v Love, the case was remanded to the federal district court. After the legislature failed to change the law, the court simply changed the date of the primary and general elections. The Love party appealed this decision Love v Foster, arguing that the Open Primary should be wiped out entirely. The 5th Circuit upheld the district court, and the Supreme Court refused to hear the case. The legislature later changed the law to match the district court decision.
Two-round system could be the way to go. First round would be in August and final round in November. In the first round, all candidates would be listed. For the second round, the top half of all candidates qualify. So if you have 12 candidates in the first round, there would be 6 candidates in the final round.
Most Louisianans define “open primary” differently from the way that voters in most states do. Having watched the Louisiana House and Governmental Affairs committee discussion of electoral systems, I am confident that the Louisiana legislators, in general, truly don’t understand the differences between the Louisiana version of an “open primary” and the substantially different version of the “open primary” that is used in other states.
ANY Dec. runoff stuff is a blatant violation of 2 U.S. Code, Sec. 7 for U.S.A. Reps/ Senators — the DAY, the ELECTION — ONLY in November.
Perhaps the LA MORONS should each have a about a 200 years course in the English language — since Civil WAR I apparently was NOT enough for them to learn about the U.S.A. regime.
Will the MORON Prof now be appointed education boss in LA ???
Demo Rep, you’re right! Election Day is only in November. But do you think that party primaries should be considered elections or better yet as selections?
#4: What many Louisiana legislators don’t seem to understand is that only Washington state uses the “top two” (“open primary”) for its congressional elections, and WA’s final election is on the first Tuesday of November.
“… voters were literally locked out from voting for their representatives in Congress.”
If any voters were locked out of snything, it was a party’s– or parties’– candidate-selection process. If necessary, a voter can always change his party registration.
You obviously think that voters should be allowed to engage in a political one-night stand… that they should be able to help select a party’s– or parties’– candidates without committing themselves to ANY party.
“… skip the 2nd primary and end up with a candidate who has 20% support in his party.”
If you count Louisiana’s congressional primaries, only 10 states now have party runoff (or second) primaries: Kentucky, Oklahoma, and eight of the 11 former Confederate states. Kentucky’s provision only applies to the office of governor, and it will likely be abolished before the 2011 state elections.
Another of those 10 states, North Carolina, has a 40% threshold to avoid a party runoff primary (Kentucky’s threshold is also 40%).
I agree that office space is not that big a deal, but committee assignments are crucial to a representative’s or senator’s effectiveness.
So Louisiana had a congressional “primary” on the first Tuesday in November???
#5: There could be a “top three,” a “top four,” etc., although I’m not aware of anything other than a “top two” being used anywhere.
Your “top half” plan would not work for congressional elections. The line of federal court rulings that I mentioned in comment #1 says that any candidate for Congress who has met a prior vote test of at least five percent is entitled to be on the ballot on the first Tuesday in November (the Washington state “top two” sets a 30 percent threshold to appear on that November ballot).
#6: If it’s any consolation, Mississippi, California, and Oregon– among others– also popularly call the nonpartisan “top two” by the name of “open primary.” (Washington state’s “top two” moniker is much more accurate.)
There’s something really sexy about the term, “open primary.” A couple of examples:
Pennsylvania has closed primaries, in which only registered party members may vote in party primaries. The two major parties often endorse a candidate in their primary; when a party does NOT endorse a candidate in its primary, it’s called an… “open primary,” although it’s actually just a closed primary in which the party is not supporting a candidate.
Arizona’s two major parties have semi-closed primaries, in which registered independents and registrants of unqualified parties are the only non-members who are eligible to vote. Those semi-closed primaries are popularly called… “open primaries.”
New Hampshire’s semi-closed primaries are often called “open primaries,” even by people as smart as columnist George Will.
The Mississippi legislature first passed the so-called “open primary” for our state and local elections in 1966 (this is the “top two” system that Louisiana has used for its state and local elections since 1975).
I have a copy of the front-page news article about Governor Paul Johnson Jr.’s veto of that 1966 Mississippi bill. Nowhere in the article is it referred to as the “open primary.” The only place where it’s called that is in the headline.
# 8 ALL nomination stuff is PUBLIC stuff by PUBLIC electors — ALL electors — or some electors in party hack subgroups — with or without independents — with all the confusing party hack labels of what the NOMINATION system is (or is NOT).
Difficult ONLY for the party hack Supremes to understand — and MORON lawyers.
#9 But the legislature and people in Louisiana do understand the open primary and they like it. If you watched the House debate from April 14 (the part on HB 292 starts around 30 minutes in) this is quite clear.
In general, legislators who are elected aren’t quite the party hacks that party officials who often can’t get elected are.
What the legislatures don’t quite comprehend is why the runoff is in December. You should explain to them that if Billy Tauzin is the only candidate who files, that no elections are held and that is illegal; while if Charlie Melancon is the only candidate who files, that no elections are held that it is legal. No matter how many times you explain this they will not understand.
“… voters were literally locked out from voting for their representatives in Congress.â€
If any voters were locked out of anything, it was a party’s– or parties’– candidate-selection process. If necessary, a voter can always change his party registration.
Election officials physically turn a lockout switch on the voting machines – they actually refer to it as “lockout switch” – to prevent voters from voting in congressional election, while all voters are permitted to vote in primaries for the larger house of the state legislature. This is in violation of the US Constitution.
Go read the dialogue in Terry v Adams when it is argued that disenfranchised voters can just vote some other time. I don’t see what you are defending is any more defensible than the Jaybird primary.
You are correct that many states have particularly defective systems because they allow candidates to be nominated with a very small percentage of the vote of a fraction of the electorate.
#10 The 9th circuit in remanding the Washington case ordered:
“The district court should DISMISS as waived all claims that Initiative 872 imposes illegal qualifications for federal office, [or] sets illegal timing of federal elections … because these claims were neither pled by the parties nor addressed in summary judgment by the district court.”
Judge Coughenour in his 8/20/2009 order dismissed the ballot access claims. See II.A.2 of his order beginning on Page 11.
#14: It’s understandable that Louisianans would like the “open primary,” since they have no real history with a competitive party-primary system. The “open primary” was imposed almost immediately on the heels of the old one-party system (in fact, the “open primary” is part of the residue of that one-party system).
In Louisiana’s “open primary,” unlike the system proposed by California’s Prop. 14, it’s possible for a candidate to actually be elected to office in the first round. Louisiana voters would be very unhappy with a setup in which a candidate who gets 50%-plus in the first round can be defeated in the second round (when I mentioned this scheme to a Louisiana friend, he asked, “What were they thinking about?”).
In a system in which parties can officially nominate candidates, no one is elected to office until the general election. A voter who steadfastly refuses to register with a party has no business participating in that party’s candidate-selection process– unless the party invites him to do so.
You expect to be able to cling to your “independent” status while helping to choose the candidates of one or more parties– regardless of what the parties say about it.
Re your last paragraph: What about when parties nominate by some method such as conventions or caucuses? That’s what you can truly call “a very small percentage of the vote of a fraction of the electorate.”
Surely you know the difference between selecting candidates for the general election and actually electing candidates to office.
#15: I guess you know more on this subject than Richard Winger.
According to Richard, both the ballot access and the trademark issues can still be reviewed by the 9th circuit.
#17 I know what the courts have ordered in this case.
The 9th circuit has dismissed the claims that are specific to federal elections because the political parties did not raise them before the district court 5 years ago.
They were raised in the Libertarian Party response brief to the 9th Circuit. I do not believe that the Republican or Democratic parties have raised the issue so far.
The Libertarian Party claimed that Congress has “implicitly authorized” partisan primaries, but has not “authorized” other methods of winnowing the field.
It sounds like Congress has neither explicitly authorized nor explicitly not authorized preliminary elections whether partisan or not. Since States have authority to regulate the manner of election, and Congress has not acted in one way or the other, then Washington is free to use a winnowing election of the type suggested by Justice Scalia in Jones.
You do realize of course that if a court ruled against Washington on the federal election qualification or timing issue, that they could simply go back to the pick-a-party primary for a congressional section of the ballot, simply requiring a voter to stick to the same party for both the House and Senate race (if any). They could also require that independent and minor party candidates be placed on the primary ballot and reinsitute the 1% rule.
#17 Judge Coughenour dismissed the ballot access claims after considering them on their merits.
These have nothing to do with the federal election claims. The political parties did raise these claims before the district court (Judge Zilly) back in 2005, but because his decision was based solely on the facial political association issues, he never addressed the ballot access or trademark claims, nor did the 9th Circuit or Supreme Court.
The 9th circuit said that the ballot access and trademark issues were still live issues because they had been raised in the original proceedings but not ruled on by Judge Zilly.
Judge Coughenour in his opinion last August dismissed the ballot access and trademark issues.
Basically, the political parties are arguing that they have a constitutional right to have a candidate placed on the general election ballot. Judge Coughenour considered the claims, but pointed out the US Supreme Court itself had said that a system where parties (might) nominate candidates to appear on the primary ballot along with independents, and then so few as two advance to the general election would be assumed to be constitutional. It is of course possible that Justice Scalia outlined an unconstitutional system in Jones.
It is true that the political parties have a legal right to appeal Judge Coughenour’s decision.
#16 “Surely you know the difference between selecting candidates for the general election and actually electing candidates to office.”
Are you saying that primary, secondary, and even tertiary elections are not all integral parts of the election process?
You know, of course, that an issue that is dismissed by a district or circuit court can still be appealed to the higher court.
“The 9th circuit has dismissed the claims that are specific to federal elections because the political parties did not raise them before the district court 5 years ago.”
Weren’t those part of the list of possible “as-applied” challenges in the Supreme Court’s March 2008 ruling on the Washington “top two”?
Last paragraph: Obviously, if Washington were using the “top two” for all but federal elections, ALL the candidates for those offices would be included on the “top two” section of the ballot.
I’ve been predicting all along that Washington would ultimately wind up with some version of the “top two.” Bad ideas are nevertheless sometimes constitutional.
Any Dec general election runoff stuff for U.S.A. Reps and Senators blatantly violates 2 U.S. Code Sec. 7 — GA, LA or wherever — regardless of every election law MORON on the planet.
However — the MORON party hacks in the States can have a zillion elections (primary, runoff primary, general, runoff general, etc.) for their state and local regimes.
P.R. and A.V. – ONE election.
You posted #19 and #20 while I was composing #21.
“… because [Judge Zilly’s] decision was based solely on the facial political association issues, he never addressed the ballot access or trademark claims, nor did the 9th Circuit or Supreme Court.”
Correct… and the Supreme Court, in a footnote (#11, I believe), listed the as-applied grounds on which the Washington state “top two” could be challenged in the future.
“Are you saying that primary, secondary, and even tertiary elections are not all integral parts of the election process?”
I’m saying that party primaries are for the purpose of selecting the parties’ candidates for the general election, just as are conventions, caucuses, and other less democratic methods of nomination. For 30-plus years now, the federal courts have been moving in the direction of greater autonomy for political parties. The Supreme Court struck down the state-mandated blanket primary in California Democratic Party v. Jones, and I’m convinced, based on the reasoning in that case, that the justices will also strike down the state-mandated open (or pick-a-party) primary when such a case reaches them.
In Jones, Justice Scalia, quoting from an earlier ruling, said that political parties have “the freedom to identify the people who constitute the association, and to limit the association to those people only.”
Also in Jones, Scalia said, “… [S]electing the candidate of a group to which one does not belong… has been described… as a ‘desire’– and rejected as a basis for disregarding the First Amendment…”
You make it sound as though the election process is merely a matter of citizens continuing to cast ballots until only one candidate is left standing.
#23 Nominations for PUBLIC offices by PUBLIC Electors is PUBLIC business — TOTALLY subject to PUBLIC laws — and NOT some sort of clubby party hack stuff in a closet or clubby club house.
i.e. there is NO constitutional *right* for X percent of ALL Electors (who are party hacks) to have *their* party hack choice on the general election ballots — regardless of party hack MORONS like Scalia — who gets his election info out of a trash can (aka from party hack briefs).
You know, of course, that an issue that is dismissed by a district or circuit court can still be appealed to the higher court.
“The 9th circuit has dismissed the claims that are specific to federal elections because the political parties did not raise them before the district court 5 years ago.â€
Weren’t those part of the list of possible “as-applied†challenges in the Supreme Court’s March 2008 ruling on the Washington “top two�
They weren’t raised by any political party until after the district court had ruled on the facial challenge. They were included in the Libertarian response brief to the 9th Circuit (go ahead and read it)
When the 9th Circuit sent the case back to the district court, they explicitly ordered that the claims relating to federal elections be dismissed. The district court did dismiss those claims. I suppose the political parties could appeal the dismissal by the district court. But how would they explain to the 9th Circuit that the district court had made a mistake by doing exactly what the 9th circuit told them to do?
Last paragraph: Obviously, if Washington were using the “top two†for all but federal elections, ALL the candidates for those offices would be included on the “top two†section of the ballot.
Washington had nonpartisan offices on its primary ballots under Pick-A-Party. All voters could vote for any candidate for those offices regardless which party they picked.
So if Washington had a combination of Top 2 partisan races; nonpartisan races; and either one or two Pick-A-Party congressional races; then any voter could vote freely in the Top 2 partisan races and the nonpartisan races. They would then be restricted to one party for the congressional race(s). If there were no senate race, then a Pick-a-Party ballot with one race is indistinguishable from a blanket primary. Even with two congressional races it is not too much different.
#22 It does not violate 2 USC 8.
“Correct… and the Supreme Court, in a footnote (#11, I believe), listed the as-applied grounds on which the Washington state “top two†could be challenged in the future.”
The 9th circuit when it sent the case back to the district court told the district court to consider the ballot access and trademark claims. Judge Coughenour did consider them and he then dismissed them. The political parties have a legal right to appeal his decision.
Neither Washington or Louisiana or California have a Pick-A-Party primary. Washington did for a short while, but that was almost 4 years ago.
If the political parties keep pressing, you will end up with nonpartisan elections, where the press and ordinary decent citizens are kept outside a 100 foot barrier – except if they are going or coming from the polling place. Corporate citizens and felons will be outside a 200 foot barrier. Political parties will be kept at least 300 feet away.
#27: Again: I’m convinced that, when a suit against the state-mandated open (or pick-a-party) primary reaches the US Supreme Court, the justices will strike it down. At this point, it looks as though Idaho Republican Party v. Ysursa may be that case.
The key term is “state-mandated.” Even if the law has been struck down, a party will still be able to have an open (pick-a-party) primary if it wants one.
Mississippi Democratic Party v. Barbour was dismissed by the 5th circuit on procedural grounds. But even if the Democrats had won that suit, the Republicans were going to keep their primaries open to ALL voters. And the Democrats were only going to block Republicans from Dem primaries, so independents would have had their choice of either party’s primary.
Thus Republicans would have been the only voters who would have been restricted to voting in their own party’s primary.
#28 While a political party can restrict who votes in its primary, it may not restrict those voters to voting in its primary.
So the Beck-ites could simply provide a list of voters who they would permit to vote in its primary. In a pick-a-party primary, non-Beck-ites would be given a ballot with the Beck-ite section disabled.
If the Supreme Court continues to uphold open non-party primaries, but outlaws open party primaries, states that currently don’t maintain records of their voter’s political beliefs are going to switch to open non-party primaries.
#29: I’m not sure what you mean in your first paragraph. We, of course, are referring to a state which does not mandate that any party primary be open to any voter.
Each party decides whether independents may vote in its primary. Unless state law forbids it, a party may even invite members of opposing parties to vote in its primary. But no party can control how other parties conduct their candidate-selection process.
If (1) the Idaho open primary law is struck down, and (2) the Republicans only want Republicans to vote in GOP primaries, the most logical solution is for the state to register voters by party. But if the Republicans only want to block Democrats from GOP primaries, and if there is no party registration, the Republicans could require anyone who had voted in a Democratic primary within a certain period of time to sign an oath of affiliation in order to vote in the GOP primary.
In other words, party registration is by far the best way to identify independent voters.
Re your last paragraph: I don’t see that happening. If the state-mandated open (party) primary is banned, a party will still be able to have an open primary if it wants one– unless the state prohibits parties from inviting members of opposing parties into their primaries. In that case, a party could have a semi-closed primary if it wanted one (independents would be the only non-members eligible to vote).
The Supreme Court has said that the nonpartisan “top two open primary” is not unconstitutional on its face. The justices left the door open for “as-applied” challenges to the “top two.”
As to what you said about “political beliefs”: Even in most (partisan) open primary states, a voter’s choice of party on primary day is public record.
As to my third paragraph in #30: I just remembered that Idaho has “open primary, private choice,” so there is no record of voters’ party choices on primary day. That being the case, barring the enactment of party registration, the Republicans would have to require everyone who requested a GOP ballot to sign an oath of affiliation.
The alternate approaches which you have previously suggested are too difficult and complicated, which is why they aren’t used anywhere.