February 6, 2010

Note to the Sec of State and the Senator from Coventry: Forcibly Keeping Open a Primary Has Been Ruled Unconstitutional

Monique Chartier

... by the United States Supreme Court.

During the height of the debate several weeks ago as to whether the RIGOP should close its primary, Secretary of State Ralph Mollis declared that if a political party closes its primary, it would be a violation of state law. Further, the Sec of State stated that if the RIGOP decides to change its by-laws in order to do so, he intends the RI Board of Elections to intercede.

the office of Secretary of State A. Ralph Mollis sent out an advisory that the state Board of Elections reviews all revisions to party bylaws, so that if the GOP Central Committee does vote to restrict who can vote in its primaries, the “state Board of Elections will be the setting for the next step in the process.”

Now, as Justin points out, Senator Leonidas Raptakis, Mr. Mollis' probable primary opponent, has filed legislation reinforcing (?) existing law to keep primaries open.

Both of these gentlemen may want to slow down and review precedent in this matter. When the Connecticut Secretary of State tried to stop the Connecticut GOP from opening their primary, the US Supreme Court in 1986 said ix-nay. And when the California Secretary of State tried to force all political parties to go beyond an open primary to something I had never even heard of - a blanket primary: all primary candidates on the ballots of all party primaries, with all voters free to choose from the smorgasbord - the US Supreme Court in 2000 not only ruled against him but provided a remarkable historic example of what could have happened in one particular primary if non-party members had been permitted to choose a party's candidate.

But a single election in which the party nominee is selected by nonparty members could be enough to destroy the party. In the 1860 presidential election, if opponents of the fledgling Republican Party had been able to cause its nomination of a pro-slavery candidate in place of Abraham Lincoln, the coalition of intraparty factions forming behind him likely would have disintegrated, endangering the party’s survival and thwarting its effort to fill the vacuum left by the dissolution of the Whigs.

In short, without a closed primary, President Lincoln might not have been the Republican candidate, he might not have been President and slavery ... well, let's just stop there.

The RI Board of Elections just finished wiping constitutional egg off its face from trying to uphold another dubious Rhode Island electoral law - one involving signatures and the RI Moderate Party. Don't make them go through that again, messieurs.

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While personally, I would welcome a closed GOP primary (think of how efficient it would be. The votes statewide could be tallied by hand in about 5 minutes), I would point out that if the law is on the books, it must be followed. It could be overturned-and probably would be given the precedent involving CT, but it just can't be ignored.
The example of Lincoln is a poor one, because it could be argued the same way if the primary were not closed and he still was elected.
Arguing for a closed election simply because one such election had positive results is a poor argument.

Posted by: DavidN at February 7, 2010 10:45 AM

" if the law is on the books, it must be followed."

... um, DavidN, the point of the post is that the US Supreme Court has ruled such laws unconstitutional.

Posted by: Monique at February 7, 2010 11:58 AM

Both Supreme Court cases (seeking opposite remedies) upheld the right of the Party to determine the rules for its primary. The state(s) have no right to interfere with the will of the political parties and their members.

Posted by: George at February 7, 2010 12:24 PM

David, in addition to Monique's point, the law is not on the books. To change the party's rules on primaries requires only a change in its by-laws, not a new statute. The bill just introduced to force open primaries is what we are discussing.

Posted by: BobN at February 7, 2010 3:03 PM

Then requiring taxpayers to fund the primaries of private political parties should also be unconstitutional.

Posted by: helen at February 8, 2010 2:32 AM

Helen, by what logic do you reach that conclusion?

Posted by: BobN at February 8, 2010 8:07 AM

The article you linked to says:"Under current state law, Republicans and Democrats are not permitted to vote in the opposing party’s primaries unless they have chosen to disaffiliate at least 90 days prior to the primary. The 48 percent of the electorate who are already listed on the voting rolls as unaffiliated have generally been able to decide on primary day whether to cast ballots in either the Republican or Democratic primary — and to keep that unaffiliated status by signing a document after voting."
That is the law I was referring to. The state GOP can't just change its bylaws without running afoul of this. Should they want to challenge the constitutionality of this rule, they can-and would probably succeed. But they just can't ignore the current election laws based upon a Supreme Court ruling involving another case and another law.
Almost 1/2 of the electorate are unaffiliated. To suggest that these voters should have no say in what choices of candidates are available to them in the general election is exclusive-and in itself may be against the State Constitution as well.
Section 1. Persons entitled to vote. -- Every citizen of the United States of the age of eighteen years or over who has had residence and home in this state for thirty days next preceding the time of voting, who has resided thirty days in the town or city from which such citizen desires to vote, and whose name shall be registered at least thirty days next preceding the time of voting as provided by law, shall have the right to vote for all offices to be elected and on all questions submitted to the electors, except that no person who has been lawfully adjudicated to be non compos mentis shall be permitted to vote.

Posted by: David Napier at February 8, 2010 9:08 AM

David, you are again falling into the error of confusing general elections and primaries. The Constitution quote refers to offices to be elected, not candidates to be elected.

Posted by: BobN at February 8, 2010 11:26 AM

Helen, What you advocate is a poll tax and poll taxes are illegal. We have an election system. That system is still being followed regardless of open or closed primaries and that system is paid for by the government (taxpayers). What about those who pay no taxes to support our government. Would you deny them the right to vote?

Posted by: bobc at February 8, 2010 1:53 PM

" What about those who pay no taxes to support our government. Would you deny them the right to vote?"

Saaay ...

Posted by: Monique at February 8, 2010 9:09 PM

Perhaps I am. but it says "shall have the right to vote for all offices to be elected and on all questions submitted to the electors." losing the primary means that unaffiliated voters will be denied this.
Can you explain the difference between offices to be elected and candidates to be elected? How is an office filled in an election WITHOUT a candidate?
A primary determines who gets to run on the ballot for each party. Denying voters from having a say in the choices is denying them their voice.
I don't argue that a primary is held for a party to determine who gets to be their candidate for office-but I believe it could be interpreted that denying almost half the electorate to vote in a primary is going to raise some serious questions. As it stands, unaffiliated voters are not required to join a party and can vote in a primary. Once they have voted they can disaffiliate to avoid declaring party affiliation. Forcing them to join a party just doesn't seem right to me and appears to run afoul of at least the spirit-if not the letter- of the law.
But I welcome your input.

Posted by: David at February 8, 2010 10:25 PM

David, I appreciate your good faith response. Here is where I think you have it wrong:

Nobody, and certainly not half the electorate, is being "denied" anything. Requiring people to register - in good faith - with a party in order to participate in its affairs is the same as requiring citizens to register to vote in the first place to participate in elections at all. By your logic, people should be allowed to register to vote at the polling booth on election day. Imagine that chaos that ACORN and other corrupt groups would wreak if that were the law.

Again, primary elections are party affairs that have been co-opted by the state to force that method of candidate selection (as opposed to other methods such as the caucuses used in Iowa). They are not the elections for state offices.

You last point about unaffiliated voters voting in a primary and then disaffiliating (the current system) seems to assume that all who do that would do so in good faith. But in reality, we have actual examples in this state of organized efforts to do that in bad faith, as a means of manipulating the primary and damaging its prospects for winning the general election. Is there not a requirement of fairness towards committed, registered party members to protect them from such malicious acts?

My position is that requiring voters to choose their party 90 days before the primary election is the best way to balance fairness for both the voters and the party members.

Keep in mind also that we are not limited to the two candidates from the major parties. There is nothing to prevent candidates from running as independents or as members of any other parties. Citizens can just as easily support and vote for them, or even write in their favorite candidate.

Posted by: BobN at February 9, 2010 10:04 AM

Been away for awhile and the blog has moved on so I don't know if you will see this, but thanks for the response.
I don't agree with everything you say, but upon consideration, I think you are right about primaries should be for party members only. An unaffiliated voter can then choose either between the candidates from either party, or an independent.
Thanks again for your response.

Posted by: DavidN at February 12, 2010 9:01 AM
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