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U.S. Justice Department Clears Congressional Vote Changes in California, Louisiana

Published on February 8, 2011, by in Uncategorized.

On February 8, the Voting Rights Section of the U.S. Justice Department approved two election law changes from California and Louisiana. Both states are under section five of the Voting Rights Act. The Department approved California’s redistricting commission for U.S. House elections, a change made by the voters last year. Also the Department approved switching Louisiana congressional elections from closed or semi-closed primaries, to a top-two system in which the first round is in November. Louisiana had used a top-two system for congressional elections between 1978 and 2006 as well, but the legislature had changed it in 2006 to a closed or semi-closed system. Then, in 2010, the legislature changed it back again.

14 Responses

  1. Demo Rep

    ALL of the pre-clearance stuff in the VRA is a giant perversion of the 15th Amdt.

    Any preclearance stuff regarding the 13th, 14th, 19th, etc. amendments ???

    i.e. 15th Amdt = NEGATIVE stuff about being an Elector.

    Election systems with Electors are totally separate subjects — much too difficult for the SCOTUS politically correct MORONS to understand.

  2. In the new Louisiana procedure, if one candidate gets a majority in the first round, is there a runoff anyway? If that’s the case, it’s technically not top two. If that’s not the case, how does it comply with the federal law that Congress has to be elected on the first Tuesday after the first Monday in November?

  3. Richard Winger

    Louisiana top-two has always provided that if someone gets 50% in the first round, that is the end and there is no 2nd event. There are so many types of primary system, it is tough to nail down a vocabulary that everyone shares. But it is true that Louisiana’s top-two is fundamentally different from the California/Washington top-two.

    Louisiana congressional elections 1998-2006 and also 2012 and into the future hold their first round in November, so no candidate for Congress is excluded from the general election campaign season. Thus Louisiana’s system is far better than the California/Washington style, which excludes minor parties from the general election campaign season.

  4. Demo Rep

    The LA primary system, the CA primary system, etc. — just like car and truck types.

    P.R. and App.V. = NO primaries are needed.

  5. Louisiana’s “top two” system, popularly called the “open primary,” is an extension of the old one-party (truly NO-PARTY) system, in which elections were decided in the Democratic primary, with a Democratic runoff if necessary. When the Republicans started running a few serious candidates, Democratic candidates usually then had to conduct THREE campaigns. The Democrats wanted to force the Republicans to run in the same election with all the other candidates, and to restore Louisiana’s election system to the two-step process that everyone had been accustomed to.

    As noted in comment #3, the purpose of the first round in the Washington/California “top two” is merely to winnow the field to two candidates, regardless of party. The final choice is almost always one Democrat and one Republican, two Democrats, OR two Republicans.

  6. Jim Riley

    #3 Louisiana traditionally has not used the national/federal calendar for its elections. Its elections this fall 2011 (for statewide offices and the legislature) will be on a Saturday in late October, with a runoff in November (this year the dates are October 22 and November 19.

    The last gubernatorial election under the partisan system was held in 1971-1972, with the primary and runoff in the fall, and the general election in February. Edwin Edwards who was elected then had a close race in the Democratic runoff, and then had to run again in February against Republican David Treen. There were slightly more votes in the Democratic runoff than the general election. And while there were a little over 10,000 votes cast in the GOP primary, Treen got 480,000 in the general election.

    So in a sense, the open primary eliminated the general election and converted the Democratic primary into the Open primary, with a conditional runoff. Technically, the first election in October is the general election.

    When this system was adapted to federal elections starting in 1978, Louisiana made the runoff correspond to the federal election day. In the first election, only one of the 9 races (8 House and one Senate) went to the runoff. The governor issued certificates of election to the 8 candidates who were as a matter of law elected in September. Since Louisiana has relatively few even-year elections, there were few polling places open on November 7, 1978.

    This calendar continued until 1998, after the SCOTUS decision in Foster v Love determined that Louisiana was not in compliance with the federal law, since rarely was the member of Congress chosen on the date set by Congress. The case had originally been style Love v Edwards, so it must have been started before 1995, when Mike Foster was elected.

    The Louisiana legislature was unable to pass a remedy, with the House and Foster wanting to change the election calendar so that the congressional election would be in November, with any runoff in December, while the Senate tried to force a switch to partisan primaries. Finally, the district court imposed the November-December calendar. This was appealed in Love v Foster, but was upheld by the 5th Circuit. The Love attorneys argued for a return to the election law as it existed before the Open Primary. So it appears that the motive of the Love party was not so much about the calendar per se, but the Open Primary.

    Louisianans didn’t really like the new calendar, and it messed up the election for those local offices that were contested in even-numbered year. So first they tried to modify the format of the open primary so that, if only two candidates filed, they would go directly to the runoff, which would be held on the federal election day, so that at least there would be a greater chance of an actual election that day. But that was blocked in Daughter of Love v Blanco. The Louisiana legislature then agreed to switch back to partisan congressional primaries, beginning in 2006. As it turns out, there were 2 special elections in 2008, both went to 3 rounds (there is a primary runoff). Hurricane Gustav came at the time of the primary, and so the election phases were pushed back, with the primary on the primary runoff date, the primary runoff on the federal election date in November, and the general election in December. This contributed to Joseph Cao’s upset of William Jefferson.

    Last year, the legislature decided to return to the open primary for congressional elections, even though it meant that they would have to hold the primary in November, with a runoff in December.

    In Louisiana, if only one candidate files, they cancel elections. In 2008, in some districts, the primary, primary runoff, and general election were cancelled. If only one candidate files for each party, they cancel the primaries. So unlike Washington and California there is no guarantee of an election in November.

    If Congress were upset about the elections in Washington, they have the authority to overturn the result. There is simply no question that the election occurred on the date set by Congress. If there were some manner of election implied by the 1872 legislation, no other state is in compliance either.

  7. Demo Rep

    14th Amdt, Sec. 2 is still in force in all States — regardless of the SCOTUS party hacks and their gross ignorance.

    For the clueless- Such Sec. 2 was worked on for about 6 months in early 1866 — and was deemed much more important than 14th Amdt, Sec. 1 in the very limited debates about the proposed 14th Amdt.

    election = making choices — not final or final.

  8. Demo Rep

    The party hacks are able to play their EVIL party hack games with Federal Election dates due to one more FATAL oversight in the 1787 top secret Federal Convention by the elitist party hacks.

    i.e. NO fixed date for the election of U.S.A. Reps, Senators and the Prez/VP — with a short/long term for the 1st Congress.

    Thus the original 4 Mar 1789 starting date with later statutory Nov. Election dates and lame duck sessions of the gerrymander Congress.

    One more reform – NO lame duck legislation except directly relating to a state of war, insurrection or invasion — i.e. new party hacks take office circa 7 days after each election DAY.

    Which FATAL defect in the Const. will the party hacks exploit to the max ???

    See Hitler in 1933-1934 exploiting ALL of the FATAL defects in the 1919 German Const.

  9. #6: There is no federal calendar for elections in odd-numbered years, such as 2011. Anytime Louisiana has a choice, it holds elections on Saturdays; runoffs for Congress, e.g., are on Saturdays in early December (the runoff for US senator between Mary Landrieu (D) and Suzanne Terrell (R) was held on December 7, 2002).

    In 1971, David Treen got 90%-plus of the vote against a token opponent in the Republican primary for governor.

    “… the first election in October is the general election.”

    That’s right! And the second election, if necessary, is a runoff general election. It always amazes me to hear people call the first round in Louisiana a “primary,” but when a candidate gets 50%-plus in that round (SHA-ZAM!), it magically becomes a “general election,” which is what it was from the get-go. The difference between that general election and others is that it is not preceded by a nominating event to winnow the field.

    Are you sure that the federal courts imposed the December date for congressional runoffs? I had thought that was left up to the legislature.

    Louisiana held party primaries for Congress in 2008 and 2010, but the state has restored the “top two” (“open primary”) format that it used for congressional elections, 1978-2006.

    I recall that, at one point in the Foster v. Love case, the plaintiffs attempted to challenge the overall “open primary,” but the court prohibited them from doing so.

    I’ve always wondered who the plaintiffs were in that case. Were they party officials, or were they ordinary citizens? Do you know?

    US Supreme Court precedents have set 5% as the threshold a candidate for Congress must meet in a prior vote test in order to appear on the ballot on the first Tuesday in November. The Washington state and California “top two” schemes have set much higher thresholds (I forget which is which, but one is 25%, and the other is 30%.)

  10. As noted in comment #3, Louisiana is returning to the November//December “top two” (“open primary”) schedule that it used for Congress from 1998 through 2006.

  11. I hear that Buddy Roemer, Louisiana governor from 1988 to 1992, is planning to run for president in 2012.

    If that’s true, I’m sure that all the other potential candidates are shaking in their boots!

  12. Jim Riley

    #9 Five states use odd-year elections for the legislature and/or statewide offices: Kentucky, Louisiana, Mississippi, New Jersey, and Virginia. All but Louisiana use the first Tuesday after the first Monday in November for their general election.

    In Louisiana, the general election (open primary) is the 2nd to last Saturday in October, with the runoff 4 weeks later, which gets it finished before Thanksgiving. The congressional runoff is the first Saturday in December.

    The case was originally Love v Edwards, filed in 1995. The federal district court dismissed the complaint, but this was overturned by a 3-judge panel of the 5th Circuit in the 1996 Love v Foster decision. In that decision, the 5th Circuit specifically declined to overturn the 1978-law which had applied the open primary reform to congressional elections, determining that only the date of the conclusive election was in violation of federal law.

    The 5th Circuit also ordered that the 1996 election be conducted on the old schedule. Its decision was handed down in July, and they turned down an appeal in November for an en banc hearing. The 1996 election was the first after the Mark of Zorro gerrymander was overturned, and it ended up with two runoffs in November 1996.

    Louisiana appealed the 5th Circuit decision to the Supreme Court, which affirmed it in Foster v Love in 1997.

    After this, the case was remanded to the district court, which gave an opportunity to the legislature to change the statute. The House along with Governor Foster wanted to change the dates of the election, while the Senate wanted to switch back to closed partisan primaries. Because of the deadlock, the district court had to set the dates. Naturally, they set the federal election date for the open primary, and there was an existing provision in Louisiana law in case of a tie vote in a runoff for another election to be held on the 3rd Saturday after the results were canvassed (this turned out to be the 5th of December, 1998).

    The Love party appealed the decision of the district court as to the date of the election, arguing that the election should be run on the pre-1978 closed primary system. The 5th Circuit in 1998, in Love v Foster, determined that the Louisiana legislature would have created the open primary regardless of the date of the primary, and that the October date of the primary was severable, since they had provided a 3rd election date.

    The 5th circuit also specifically stated that their decision applied to 1998 only. There were no congressional runoffs in 1998, and the legislature later codified the first Saturday in December as the date of the congressional runoff.

    The legislature later tried to switch the date of the open primary to October. They provided that if one or two candidates filed, that the election would occur on the November federal election day. So the only cases where there would not be an election in November would be if there were three or more candidates and one received a majority.

    This was challenged in Daughter of Love v Blanco. The lawsuit was filed by the original Love plaintiff on behalf of his minor daughter, who as it happened would turn 18 between the date of the open primary and the November election, so there was also a claim under the 26th Amendment. The district court in an unpublished decision blocked the open primary from being conducted under this modified calendar. It was after that decision that the legislature switched to the closed primary for congressional elections.

    These were used in 2008, first for two special elections in the spring, and then the fall elections. Because Hurricane Gustav arrived at the time of the 1st congressional (partisan) primary, it was delayed until the scheduled date of the 2nd congressional primary (runoff). In those districts where a primary runoff was needed, it was held on the federal election day in November, and the general election was in December.

    The closed congressional primary meant that Louisiana had to employ a lockout device to prevent voters from voting in the wrong congressional primary, while permitting them to vote in other elections (while Louisiana conducts statewide and legislative elections in odd-numbered years, they do have some judicial races and special elections in even-numbered years). With the lockout device, an election judge manipulates the voting machine to prevent voting for certain candidates. Because of physical limitations, this meant that not all qualified parties could hold primaries, and Louisiana considered preventing 3rd parties from nominating candidates for congressional elections.

    In 2010, the legislature switched back to the open primary, but it was too late to get VRA preclearance, so the 2010 congressional elections were conducted using partially-semi-closed primaries. Louisiana had also scheduled some referendums on constitutional amendments, and the special election for the Lieutenant Governor to occur on the October date of the 2nd congressional primary (runoff) and didn’t want to change those. If Louisiana were not a VRA preclearance jurisdiction, they could have returned to the open primary in 2010.

  13. Jim Riley

    #9 The Supreme Court has never connected a 5% threshold to the federal election date. While some of the cases have involved federal elections, others have not.

    The reason that the Supreme Court incorporated primaries into protection under the 14th Amendment in United States v Classic was specifically because candidates were being excluded prior to the November election date.

    There was not a problem with this exclusion of candidates prior to the November election date, but rather that all citizens were not permitted to participate in the effective choice of their members of Congress.

  14. Demo Rep

    Who can find any mention of any so-called 5% threshold in the nearly dead U.S.A. Constitution ???

    Report back ASAP if and when it is magically found to exist.

    i.e. — more party hack stuff from the SCOTUS party hacks — like a percentage for gerrymander district deviations.

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