The "Open Primary" and Other Systems

"An Alabama Independent" commented at Ballot Access News: "… we need to have… a single 'OPEN PRIMARY'… . For in a single 'Open Primary' the top two candidates go into the general election – or, such can be designed where at least the candidate of each political party with the most votes in the primary – go into the general election. (There then can be such a thing as 'top two,' 'top three,' 'top four,' etc…"

My response:

You have mixed the “top two”[1] with the blanket primary. As a nonpartisan system, the “top two” does not include a nominating process, although each party has the option of endorsing candidate(s). And, instead of a “top two,” there could indeed be a “top three,” a “top four,” etc., although I’m not aware of any nonpartisan system having been used other than the “top two.”

In a blanket primary, all candidates of multiple parties are listed on a single primary ballot, and the top vote-getter from each party advances to the general election, where any independent candidates are also on the ballot.

Jim Riley and I have frequently mentioned on this site California Democratic Party v. Jones (2000), in which the U. S. Supreme Court struck down the state-mandated blanket primary.

In a system of open primaries, each voter picks a party on primary day. Much of the reasoning in Jones also applies to the open primary, which is why I predict that, when a suit challenging the state-mandated open primary reaches the U. S. Supreme Court, the justices will also declare it unconstitutional.

Click here for an article on the various election setups, including the “top two” and the party primary systems. Links to the Jones ruling are featured under “Blanket Primary.”

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[1] The "top two" is also popularly called the "open primary." All candidates, including independents, run in the same election. The top two vote-getters, regardless of party, move on to the runoff (I'm always amazed when an independent praises the "top two," since it makes it nearly impossible for independents and small-party candidates to get elected).

A Message to Michael (Steele)

by Dick Morris

Pessimism is no more attractive in a party leader than it is in a high school cheerleader. And in the case of Republican National Committee (RNC) Chairman Michael Steele, it is unwarranted as well. Despite his prediction, on Fox News, that GOP congressional control will not come “this year,” the Republican Party has a very, very good chance of taking both houses of Congress in 2010.

We are in the midst of a political tsunami. To judge that the water will only ascend a hundred feet or two hundred or three hundred is entirely speculative. Generally, once these things start, they go further than anyone would have thought likely. Only rarely do they fall short.

President Barack Obama’s determination to march ahead with his full socialist agenda, including the imposition of a healthcare system a majority doesn’t want, can only strengthen the winds and the tide that is approaching. The 60-vote Democratic Senate majority is empowering such arrogance and disdain for the democratic process that it is easy to see how it will trigger an equal and opposite reaction in the 2010 elections.

The tsunami of 2010 is qualitatively different from the other slaughters of incumbents that took place in 1994 or 1974 or 1964. In those years, one party overstepped its bounds and the other exploited its rival’s vulnerability. They were classic instances of the voters correcting for the excessive liberalism, conservatism or dishonesty of the incumbent regime.

But 2010 is different. It is not only that Obama is too liberal or that the Democrats have given us unemployment that won’t end, a deficit that won’t shrink, a newfound vulnerability to terrorism after seven safe years and a healthcare system a majority abhors.

2010 will be a unique year because voters have seen the myth of... Keep reading>>>>

Mississippi Bill for Write-In Votes

From Ballot Access News:

Mississippi ballots have always contained write-in space, but the state has a unique law that says write-ins cannot be counted unless one of the candidates whose name is printed on the ballot has died after the ballots were printed, but before election day.

Representative John Mayo (D-Clarksdale) has introduced HB 56, which says that write-ins are generally permitted, without regard to whether any ballot-listed candidate has died. The bill covers write-ins in both primary and general elections.

Term Limits for Congress

Walter Ellington of Clinton had a letter in the January 6 Clarion-Ledger advocating term limits for Congress. He is correct that this would require an amendment to the U. S. Constitution. A 5-4 ruling by the U. S. Supreme Court in 1995 said that an individual state cannot term limit its congressional delegation.

"Obviously, members of Congress would never vote such a restriction on themselves, but, through the referendum process, the voters can bypass Congress and pass such an amendment."

Article V of the Constitution says, "The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid... when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress..."

Thus far, all amendments have been proposed by the Congress and ratified by the state legislatures.

The Founding Fathers would have been horrified at the notion of amending the Constitution by means of a popular vote. They provided that the president and senators be indirectly elected; to this day, the president is not directly elected.

A proposed term limits initiative for state and local officials has been filed with the Mississippi secretary of state.

9th Circuit Says Felons Have Voting Rights

From Ballot Access News:

The federal Voting Rights Act says, “No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.”

For decades, ex-felons and felons have been filing constitutional lawsuits, alleging that state laws that deprive felons or ex-felons of the right to vote are in violation of the Voting Rights Act. In order for this claim to succeed, it is necessary that these plaintiffs establish that the criminal justice system disproportionately prosecutes and sentences racial minorities. Much statistical evidence does support that conclusion. Notwithstanding that statistical evidence, courts have not been willing to agree that the Voting Rights Act outlaws state laws that disenfranchise ex-felons or felons.

However, on January 5, the 9th circuit ruled in a Washington state case that the Voting Rights Act does apply. The decision, Farrakhan v. Gregoire, is here. The case was first filed in 1996. The 9th circuit decision is 2-1. The dissenter wanted the case sent back to the U.S. District Court again for still more evidence-gathering. But the majority notes that in Washington state, almost 25% of the black male adult citizens are or have been felons.

Although the 1st, 2nd, and 11th circuits have ruled that the Voting Rights Act does not relate to state laws on felon or ex-felon disenfranchisement, in all three of those other circuits, the decisions were not unanimous. One of the 2nd circuit judges who wrote that the Voting Rights Act does pertain to this issue was Sonia Sotomayor, now on the U.S. Supreme Court.