Voting at the Political Fault Line "ss1.113"

NOTES

1. This description overlooks many nuances of both the state and national Democratic party rules and the Wisconsin electoral law, such as the fact that Wisconsin employed both an open presidential preference primary plus a separate caucus limited to Democratic party members. Because the delegates selected by the caucus were bound by Wisconsin law to vote according to the presidential preference primary, the Court still viewed the state law as in conflict with the rules of the Democratic National Convention. The case was thus somewhat similar to an earlier case, Cousins v. Wigoda, 418 U.S. 477 (1975), in which the Supreme Court held that Illinois state courts did not have the power to force the seating of delegates elected through state party procedures that violated the national party's rules.

2. For a more extensive discussion of the White Primary Cases that space considerations prevent here, see Issacharoff, Karlan, and Pildes (1998, 79–95).

3. Of course, Morse falls squarely under the first view of the White Primary Cases as well. After all, the whole purpose of the Voting Rights Act of 1965 was to prevent states from using "standards, practices, and procedures" with respect to voting that they had used to disenfranchise racial minorities.

4. "Unlike other private associations, at least in one of their avatars—the party in the government—the political parties are very much like the government itself. And the parties perform functions that are fairly characterized as governmental in nature, such as the nomination of candidates" (Jones, 984 F. Supp. at 1296).

5. If you count the lower court opinions in the Washington and Alaska cases, you get a total of twenty judges and justices who have voted to sustain blanket primary laws, and nine (seven U.S. Supreme Court Justices, plus one dissenting Alaska Supreme Court Justice and one Alaska Superior Court Judge) who have voted to strike them down.

6. The groups filing briefs on behalf of the Petitioners, the political parties challenging the initiative, included "The Northern California Committee for Party Renewal"

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(a collection of political scientists and law professors); the Republican and Democratic National Committees; the Eagle Forum Education and Legal Defense Fund (a conservative public interest organization apparently run by Phyllis Schlafly); and several Alaskan political parties. On behalf of the Respondent, the State of California, the following filed briefs supporting the blanket primary: Senators John McCain and William Brock, various political scientists and law professors, the Hispanic Republican Caucus, "Alaskan Voters for an Open Primary," California Governor Gray Davis, and the states of Washington and Alaska. The Brennan Center for Justice at the New York University School of Law (with which this author is affiliated) filed a brief on behalf of neither party, arguing that the blanket primary was constitutional as applied to the Democrats and Republicans but unconstitutional as applied to the minor political parties.

7. "We have considered it ‘too plain for argument,'for example, that a State may require parties to use the primary format for selecting their nominees, in order to assure that intraparty competition is resolved in a democratic fashion" (Jones, 120 S. Ct. at 2407, quoting American Party of Tex. v. White, 415 U.S. 767, 781 (1974)).

8. Though the Court found this empirical argument persuasive, it seems to me that an equally strong argument could be made that open primaries can actually cause greater mischief-making and dilution of the parties'message. For example, in those open primary states where Democrats chose to vote in the 2000 Republican primary in order to cast a presidential ballot for John McCain, the down-ballot races were polluted by outsiders who would rather have returned to their party's ballot under a blanket primary.

9. However, Justice Stevens's dissent made a very interesting point, not raised by any of the parties or lower courts in the Jones litigation and thus not before the Court, distinguishing initiatives from legislation in this particular context. According to the Elections Clause of the U.S Constitution, Article I, section 4, clause 1, "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof." Justice Stevens posited that a popular initiative regulating the manner of those federal elections might violate the Elections Clause (Jones, 120 S. Ct. at 2422–23).

10. Of course, the Progressive program of institutional reform contained several internal contradictions. Most of the reforms I describe as Progressive here were part of the Populist subset of Progressive reforms that sought to bring "power back to the people" and remove it from the corporate trusts and party machines (Persily 1997).

11. An exception to this general rule can be found in campaign finance disclosure cases where the Court has recognized unique dangers faced by minor parties if they were forced to disclose lists of their contributors. Thus, in Buckley v. Valeo, 424 U.S. 1, 70–75 (1976), and Brown v. Socialist Workers '74 Campaign Comm., 459 U.S. 87, 95–102 (1982), the Court recognized that a fear of retribution against supporters of fringe parties justified a double standard between major and minor parties when it came to compelled disclosure of contributor lists.