Welcome to the Jungle
Have you heard of the Oregon Open Primary? It's former Oregon Secretaries of State Phil Keisling and Norma Paulus' proposal to dramatically change the way we hold primary elections here in Oregon. Over the past several weeks, Keisling has been doing the rounds in the state media plugging for the initiative effort, such as this commentary he wrote in last Sunday's Oregonian.
Instead of our current, “closed” primaries in Oregon, where you must be a registered member of a party to vote in that party's primaries, Keisling, Paulus, and their supporters have proposed a dramatic reshaping of our electoral system. Under the initiative, there would be one primary election for every partisan position short of President, in which all registered voters could cast a ballot, regardless of their party registration. Similarly, every candidate for the given office would compete in this one primary election. The ballot would list candidates' own party registration, as well as any party endorsements they have received. The two candidates receiving the most votes in the primary would advance to compete in the general election, regardless of party affiliation.
The initiative is called the Open Primary Act, but this system it proposes is not really the standard "open primary". Instead, it is more properly qualified as a “nonpartisan blanket primary”, and is best known as a "top-two" or "jungle primary". The motives behind the measure; to open up our elections to greater participation, are noble and in the spirit of Oregon's history of electoral reforms. I wholeheartedly agree with the premise that we should consider how to reform our elections and increase participation. However, in my opinion, the Open Primary Act in itself is a poor way to change our elections.
The problem with the jungle primary is that while it is supposed to make the candidates in the general election more representative of the entire population, it's actually very bad at doing this. The chance for a candidate to play a spoiler role is dramatically increased when there are multiple candidates from the same party. There is a built in incentive for a party to run fewer candidates. Take this hypothetical (but not especially unbelievable) situation. There are 4 Democrats and 2 Republicans running for office. The candidates evenly split the votes from each party:
Oops! Voters overwhelmingly wanted a Democrat in office, but because Republican voters didn't split the vote as much, we'll be seeing two Republican candidates in the general election. Of course, the exact specifics of this situation are unlikely, and party loyalty is never absolute. However, the same basic problem also exists in terms of political ideology:
Once again, most voters were moderate, but it will be the two candidates furthest away from the middle of the political spectrum who will move on. Now these exact numbers are silly, but historically the top-two primary system has had this polarizing effect. Take the 1991 Gubernatorial election in Louisiana, where the jungle primary originated. The competing candidates included Edwin Edwards, a blatantly corrupt former Governor (Democrat); David Duke, a former member of the Ku Klux Klan (Republican); the sitting Governor Buddy Roemer (Republican), and a number of lesser-known candidates. The extremes voted for Edwards and Duke, while everyone in the middle split their votes between Roemer and the other candidates. Had they coalesced around Roemer, he would have moved on. Instead, Edwards and Duke advanced, resulting in the Edwards rallying cry; “Vote for the Crook: It's Important!”. Polls taken on election day show Roemer would have beaten either candidate. These types of situations may occur only rarely, but they still would be of major concern to the parties. The clear incentive on parties is to run fewer candidates in competitive races, and lo and behold: the initiative allows them to make endorsements in primary elections through a process of their own choosing. Thus, it is in a party's strategic interest to limit the number of candidates by making an endorsement. This contradicts the very reason why we would switch to the top-two primary: to give voters more choice. It would also be prudent to consider how the system has performed in Louisiana. It turns out, top-two primaries have worked so well there that the state legislature resoundingly voted to eliminate the system for Congressional races. One of the bill's authors called the jungle primary, “the best incumbent protection system in the United States”. In other words, those living under the top-two system considered closed party primaries like ours a step up. It would behoove us to ask why we should switch to a system that is already being abandoned in its home state. The top-two primary is not the way to go. However, as I said before, Oregon has a long history of enabling its citizens to actively participate in their democracy, and we must continue to push for new reforms that will encourage electoral participation. Instead of the deeply flawed Louisiana system, I would propose a far better alternative: same-day voter registration. Representative Cannon advocated for the idea here at BlueOregon during last year's session. Allowing previously unregistered voters to register and cast a ballot on election day has been immensely successful in those states which allow same-day registration; they consistently have some of the highest voter turnout rates in the nation. Louisiana, by contrast, has some of the worst turnout in the country in Congressional races (the top-two primary cannot apply to Presidential races). Amending the state Constitution to allow for same-day registration would also have the de facto effect of opening up our primaries. While participating in a partisan primary would still technically require a voter to be a registered member of that party, any voter could simply change their party registration on election day. As far as I can tell, it's perfectly constitutional; primaries in several other states work this way. Thus, same-day registration still allows independent voters to have a voice, but unlike a jungle primary it boosts turnout, and assures that voters in the general election will have a real choice. We must continue to reform and improve our elections, and all reforms will have their own disadvantages and problems. But all in all, there are too many better alternatives to the top-two primary to justify implementing it in Oregon.
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April 19, 2008 |
Nick Wirth | Comments (80 so far)
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Comments
Posted by: Jenni Simonis | Apr 19, 2008 7:33:49 PM
I'll say right up front that I am a huge advocate for same day voter registration. I went down to Salem with the Bus Project to speak before a hearing on the issue. The bill never made it out of committee. I also advocated heavily for it at the Rebooting Democracy conference in January. I personally turned away hundreds of people in the 2004 General Election while working for Multnomah County Elections. Some had never registered before, some had been registered but hadn't voted in a long time and their registration had been canceled, some had registered with the DMV and we never got the cards, some registered with a person who never turned the card in, etc. It was terrible to have to deny someone their right to vote because of an arbitrary date. And it is completely arbitrary since the date varies from state to state. We had SDVR before we had the computers and statewide voter database. If we could do it back then, we can do it now.
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Please stop using the words "open primary." As the courts have ruled, this is not an "open primary," and the ballot title for the item had to be changed to remove those words.
This initiative would change more than just how we select those who will be on the ballot in November. It also changes the term length of PCPs (from 2 to 4 years). This is a big problem, as only elected PCPs are allowed to participate in things like reorganization, which is when we elect our offices, State Central Committee members, etc. The only way to get elected is on the primary ballot every 2 years. This initiative would change that to 4 years. Since re-org is typically held every 1-2 years (by law you have to do this no more than 25 months after the last time), this is a big problem. The longer the time between PCP elections, the fewer elected PCPs you have (if you move to a non-adjacent precinct, you're no longer elected, people get interested in between elections and become elected PCPs, people move out of the county, etc.).
Not only that, but there would no longer be a PCP election listed on the ballot unless it was competitive (more people filed than there are slots). Since this is a rarity, you would have very few, if any, on the ballot. This is a huge problem since in many counties, half the elected PCPs may come through write-in -- that would no longer be an option.
Something else that is changed is how vacancies in the state legislature are handled.
Posted by: Leo Schuman | Apr 19, 2008 7:50:00 PM
With "open-jungle" primaries, Republicans and any other voters who feel like it will decide who gets to call themselves the "Democratic" nominee for an office (and vice versa, all around), even though they've had nothing to do with a party, and know nothing about its platform, history, and values. Given the right to freedom of association, how is this idea even legal, much less politically principled? It surgically destroys the right to organize around a political platform and choose leadership.
In much of the world, people are fighting hard to get this right (dying for it in some cases). Why should Oregon throw it away?
Posted by: Patch Adam Perryman | Apr 19, 2008 8:20:54 PM
Oregon boasts one of the best voter systems in the nation. It's not broken so there's no need to fix it. Keep the primary closed.
Also, mail-in ballots do not need same day registration because people have three weeks to turn in their ballots. A voter's responsibility is ensured and trusted when they are informed of the deadline to register and receive their ballots. If they miss the deadline, that's their own fault.
Finally, being a party member is a matter of choice, not privilege. Therefore party members should decide who they want their party's nominee to be, not those outside the party. This could be the case in an open primary system. This the "Rush Limbaugh" plan in Texas to have Republicans vote for Clinton to decrease the delegate counts for Obama. These tactics could be used by DNC members as well in the event of a Democratic-locked candidate facing two strong GOP opponents. DNC members could vote for the perceived "weaker" of the two to prevent the stronger's winning.
It's Rovian and dirty. I'm against it.
Finally, if independents wish to vote (and I can't blame them for their interest or motivations to get involved as a former (I) myself), then the only change I would recommend is that they be allowed to do a write-in. However, the trouble with this is two-fold:
1) It would take up a lot more time to count the ballots for an election-day tally due in part to poor penmanship and physical counting rather than machine tallying thanks to the bubble-filling ballot system we have. It would also cost more to pay people to count the ballots that way.
2) Allowing Independent voters to vote for DNC or GOP candidates can render the parties as somewhat obsolete as membership is no longer a requirement to receive votes. See above argument for further troubles.
Simply put: This is a bad idea and one that's not in the better interests of Oregonians as a whole.
Posted by: LT | Apr 19, 2008 8:24:37 PM
OK, how many people do you know who vote for a party, a platform, the values of a party, etc. vs. how many people look at, for instance, the 5th Cong. District primary and decide they like Kurt S. or Steve M. and will tell you the reason why? If they don't want to choose between Mannix and Erickson, are they being nefarious in voting D?
If they know Marks or Schrader from way back, are they being nefarious in voting D in that primary?
Roemer was both R and D at sometime in his life. Which part of the platform, values, etc. made him change his mind?
Too much of this debate is theory--a fact-based debate would discuss what would have happened if the HD 25 GOP primary in 2004 had been top 2. All those folks who were really upset Thatcher beat Backlund (only about 250 margin in Marion County, regardless of how much organizational strength was left from the Measure 30 campaign). Just think how history would have changed if the top 2 were Backlund and Pike and Thatcher were left in the dust as the 3rd candidate. But that could never happen because ever voter in Oregon is strongly liberal, moderate, conservative---and no voters say that ideology gets in the way of solving problems? People who think that need to get out more among people who aren't political activists.
Posted by: Hmm | Apr 19, 2008 8:30:54 PM
The very people who would agree with John Dean that the right wing has dangerously subverted the Supreme Court are largely the same uninformed people who passed Reed's "Open Primary" in WA, and then cheered the Supreme Court decision that let this plan that disempowers any attempt by working people to have a powerful voice through an organized political party stand.
The Supreme Court's decision was clear: Let the provincial fools in the NW help hasten the downward course this nation by setting up a system in which a vigorous party with many challengers for a seat (ie. Democrats) could easily find itself bumped from the November ballot by a high-disciplined authoritarian party (ie. Republicans).
And before all of you Keisling droids start making la-la land arguments in favor of this stupid system, the rest should know that in WA Reed, a Republican, teamed with a populist Grange to pass this in WA. Populism is not progressivism (progressive populism was a historical anomaly and even that movement had an uncomfortable flirtation with the eugenics movement and some suprisingly authoritarian ideas.) Just take a look at how many right-leaning ballot initiatives supported by the Grange fare in WA and OR in Grange country. Of course, some measures that do well in liberal urban areas are just as bad as those that do well in Grange country and shouldn't be on the ballot either. The Grange knew they had an issue in I-872 with which they could dupe the unusually large contingent of ignoramuses in NW urban areas who have a very backward, self-indulgent notion of "progressivism". Reed has certainly proven that in WA, while Keisling and Paulus seem poised to prove the same is true in OR.
So we have a mess on our hands here: Politically regressive populist emotions combined with a situation in which both major parties, and most notably the DPO, have become twisted backward shadows of the best both parties once stood for. This approach won't fix the problems with our parties and it won't give us good elected representatives. It will give us exactly what we deserve, though.
Posted by: artsasinic | Apr 19, 2008 10:04:33 PM
This is a bad idea for lots of reasons. The first two that come to mind are that the parties have the right to control who votes in their party, and more important, at least to me...what if you have two neocons and seven progressives all on the ballot, which seems more likely to occur than the reverse. Say goodbye to the state.
Posted by: Kari Chisholm | Apr 19, 2008 10:11:54 PM
Leo wrote: Republicans and any other voters who feel like it will decide who gets to call themselves the "Democratic" nominee for an office
Leo, that's true only in a "true" open primary. One where the two parties are picking nominees, and anyone can vote in those two primaries.
As Nick and Jenni pointed out, what Keisling is proposing is more properly called a blanket or jungle primary.
In this system, THERE ARE NO PARTY NOMINEES. It's handled exactly the same way that nonpartisan races (like the Portland City Council races) are handled. Everyone is on the same ballot. Everyone votes. The top two move on to the fall election.
(Minor caveat: In Portland City Council races, if only one candidate gets 50% in the spring election, it's over.)
And even more to the point, the 2008 edition of Keisling's measure allows the parties to endorse any candidate they want -- and withhold the partisan designation from all other candidates. In other words, the Democratic Party absolutely CAN select a nominee - prior to the initial spring election, put a D after their name, and disallow anyone else from putting a D after their name. Voila! Party nominees! Selected only by Democrats!
I strongly urge everyone here to actually make arguments that apply to the 2008 edition of the Keisling measure -- rather than to either the 2006 edition, or to other theoretical possibilities.
We have a bill before us. Let's talk about it.
Thank you, Nick, for an excellent post.
Full disclosure: My firm hosts the OneBallot.com website, but I speak only for myself.
Posted by: Jenni Simonis | Apr 19, 2008 10:55:26 PM
And even more to the point, the 2008 edition of Keisling's measure allows the parties to endorse any candidate they want -- and withhold the partisan designation from all other candidates. In other words, the Democratic Party absolutely CAN select a nominee - prior to the initial spring election, put a D after their name, and disallow anyone else from putting a D after their name. Voila! Party nominees! Selected only by Democrats!
Which, as I've pointed out before, means that a small number of people can choose who that one Democrat will be. For instance, in the May 2006 primary, 78,654 Democrats voted in Multnomah County to choose the various nominees. Would you rather the Democratic nominees be chosen by almost 79,000 people or the PCPs who happen to show up at a voting meeting? At any one time, there are approximately 400-500 PCPs in Multnomah County, with maybe half of those being active.
Posted by: Emily George | Apr 19, 2008 11:43:32 PM
I'm glad to see folks are paying attention to this misguided measure. The measure is supported by big business because it will elevate the expense of primaries (more voters that need to be talked to), helping candidates who can get early big money support.
Posted by: Dan Meek | Apr 20, 2008 12:04:51 AM
Yes, it seems that most of my posts are for the purpose of picking on Kari. Sorry about that. Nevertheless, Kari is not correct in stating this:
In other words, the Democratic Party absolutely CAN select a nominee - prior to the initial spring election, put a D after their name, and disallow anyone else from putting a D after their name. Voila! Party nominees! Selected only by Democrats!
Instead, every candidate who pays the filing fee and is a member of the D party as of the filing deadline (even if only for one minute) gets next to his name on the ballot: Registered: Democratic. There can be an infinite number of candidates so designated, and the Keisling measure does not allow the D party to prevent this.
His measure does allow each party to endorse as many candidates in as many partisan races as the party chooses. A candidate so endorsed also has after his name on the primary ballot: Endorsed: Democratic, etc. Each party will have a strong incentive to endorse only one candidate per office in the primary. Endorsing more than one will tend to split the vote of that party's adherents and thus make it less likely that any person truly acceptable to the party will get to the general election.
So, if voters pay attention to the Registered label, it will appear to them that there are many candidates running from each party (probably). Votes will be split among many candidates. If voters pay attention primarily to the Endorsed label, however, they will be directed to one candidate per party per race. That appears to defeat the purpose of a primary--to allow multiple candidates to contest for each major party's nomination for each office.
Posted by: Leo Schuman | Apr 20, 2008 4:01:39 AM
Kari wrote: "In this system, THERE ARE NO PARTY NOMINEES."
Which is precisely my point, Kari. This misguided idea surgically destroys the ability of any Oregon political party to vote on its nominees.
Kari also wrote: "And even more to the point, the 2008 edition of Keisling's measure allows the parties to endorse any candidate they want ... the Democratic Party absolutely CAN select a nominee - prior to the initial spring election, put a D after their name, and disallow anyone else from putting a D after their name."
Kari, the two key points here are: if our right to vote is stripped, then who makes these endorsement decisions, and how? Currently, these decisions are made based on votes by registered members of each party. This bill's supporters argue that this right to vote should be taken away.
So, when we lose our right to vote on our nominees, then who makes the endorsement decisions from that point (and in which back room)? And, when the parties lose credibility because their endorsements are meaningless without a members' vote, then who wins? If I follow the money, it seems the candidate with the most money to barnstorm the general election wins. In other words, it's an incumbent protection system.
Really bad idea.
Posted by: Jake Oken-Berg | Apr 20, 2008 4:11:38 AM
Nick -- Thanks for your post. First of all, I'm a big supporter of same day voter registration. Second, I'm stuck on your David Duke example. That 1991 Louisiana race is cited all the time by critics of a nonpartisan blanket primary.
However, can you give me a few other examples of bad runoffs under the LA system since then? And more importantly, what were the lasting policy implications of the people ultimately elected.
It seems to me that any electoral system is bound to have examples of extremists/corrupt people/idiots making it to a runoff once every decade or so. In fact, I think you could cite several examples of those type of people being nominated and elected under the more traditional primary system used in all the other states in the U.S.
Under Oregon's current system, we nominate Democrats and Republicans every primary that, by definition, do not represent the ideological center of their districts. In the general election, they then must stick to those out of step positions or miraculously change/moderate their views in the course of just a few months.
Unlike your 1991 example, my example occurs every election cycle and directly effects the quality of legislation passed at the local, state, and national level with implications for generations to come. I personally find that to be a much greater problem than the 1991 Louisiana primary.
Posted by: Jake Oken-Berg | Apr 20, 2008 4:18:54 AM
By the way, the best election reform package in Oregon would include same-day voter registration, robust public financing of campaigns, and blanket primaries.
Posted by: paulie | Apr 20, 2008 7:12:04 AM
Keisling was on Jefferson Public Radio on his rounds to pump up his Open Primary idea. This is his third attempt, by the way, his third try, and its not going anywhere this time either. The Pacific Green Party is against the idea and the Republican Party is against the idea and the Democratic Party is against the idea. Find a new cause Phil.
As the other guest on JPR I pointed out that Phil's idea could easily result in two Republicans running against each other or two Democrats.
Posted by: Sal Peralta | Apr 20, 2008 8:49:58 AM
Keisling was on Jefferson Public Radio on his rounds to pump up his Open Primary idea. This is his third attempt, by the way, his third try, and its not going anywhere this time either. The Pacific Green Party is against the idea and the Republican Party is against the idea and the Democratic Party is against the idea.
The Independent Party - the 3rd largest party in the state - is also against it.
All political parties oppose the measure because they would like to control the path by which candidates get on the ballot in Oregon.
This is not about political parties not being able to nominate their own candidates. The Supreme Court has already ruled that the Open Primary does not stop them from doing that. Keisling's measure also takes the extra step of allowing political parties to endorse candidates.
This is about political parties wanting to control a process that is paid for with public money.
If you don't believe that, ask yourself why the main arguments made by the chairs of the major political parties ultimately rested on the "right" of minor political parties to be on the general election ballot.
Read Vance Day's column.
You'll see that he expects us to believe that what he really wants is minor parties to field competitive candidates in general elections so that the Republicans can continue losing ground.
It's ridiculous.
I strongly support the Open Primary, and have agreed to help Keisling and Paulus gather most of the signatures they need to put this on the ballot.
I support the measure for a couple of reasons:
First, Nick's argument -- while interesting -- runs counter to the reality of Oregon's political primary system.
25 out of 60 races for the House and 8 out of 15 races for the Senate are uncontested in the 2008 general election because partisan gerrymandering has created a situation in which the majority of legislative districts are un-winnable or nearly un-winnable by members of the opposition party.
Take a look at Chip Shields' district, and you will quickly see that you have about 27,000 total voters and a voter-registration advantage of about 20,000 for the Democrat. Same thing is true, to a varying degree, for HD's 41-46 -- most of Portland.
Those districts should have two Democrats, or a Democrat and a Green or Democrat and an I running in the general election.
Why should we have an election system that artificially props up a Republican candidate who has no chance when the district when a general election featuring two Democrats would actually be more representative of the district?
Our current system, in which a small percentage of voters actually get to choose the eventual winner has yielded a dysfunctional legislature. Candidates on both sides of the aisle outside of a handful (maybe 8 or 10) of swing districts generaly win by appealing to their partisan base rather than to the general electorate.
It's the kind of system that allows people like Kim Thatcher, who will never cross party lines to defeat people like Vic Backlund, Lane Shetterly, or a host of people who do.
We need more legislators who will work in a bi-partisan fashion, not less.
As for the David Duke example...
The cajun primary is more similar to the non-partisan primaries that we have in several counties in Oregon than it is to the Open Primary. It's another interesting argument, but ultimately not all that relevant, since it discusses a differant system.
Posted by: t.a. barnhart | Apr 20, 2008 8:52:40 AM
i am an active Democrat, a member of the Multnomah Dems Exec , and most of my work as a political activist and volunteer is Democratic Party work. i believe in my party and want to advance it and make more progressive, more responsive to the needs of those currently sidelined by politics and government. when it's time to pick who i want to represent my party in an election, i want Democrats to pick that person. i want a good Democrat running as a Democrat in every (non-partisan) election (and the idea of non-partisan is pretty stupid anyway). when it's time to vote for the actual office, then everyone should vote for any candidate. that's not what a primary election is for, and if Oregonians get suckered into voting for this crock, you can pretty sure bet that Oregon Democrats will start holding a lot of nominating conventions to ensure we have a good Demo on the ticket. primaries will become an expensive way for small parties to try to get on the ballot; it's highly likely the Dems & Rs will opt for a system we can control -- not voters who don't give a damn about our party and may clearly be trying to undermine it. i think that will be a necessary strategy for us as a party, but i'll be the first to admit it will be a big step backwards for democracy in Oregon.
and we need more democracy in Oregon, not less.
Posted by: Sal Peralta | Apr 20, 2008 9:18:29 AM
Please stop using the words "open primary." As the courts have ruled, this is not an "open primary," and the ballot title for the item had to be changed to remove those words.
That's just not true, Jenni. The Oregon Supreme Court ruled that the AG's ballot title was a reasonable description of the Open Primary measure. The Court did not "change" the ballot title. It upheld the title assigned by th AG.
The Court did not say that Open Primary is not an equally accurate description -- which it is.
As Nick correctly pointed out. This measure is properly called a "top-two open primary" or a "top-two non-partisan primary" since both descriptors are fully transparent in terms of what the primary accomplishes (i.e., it "opens" or makes "non-partisan" our "closed", or "partisan" primary system and allows the top-two vote-getters to move on to the general election).
The terms "open" and "closed" primary in the context of this campaign are fully consistent with the historical meaning of the terms "open" and "closed" as it relates to political elections. Please refer to Ernst Meyer's 1902 treatise on nominating systems for more details.
Posted by: Sal Peralta | Apr 20, 2008 9:26:04 AM
One other point. A partial list of endorsers of this easure, which some folks here have called regressive include:
John Kitzhaber
Earl Blumenauer
Vic Atiyeh
Norma Paulus
Frank Morse
Ben Westlund
Eric Sten
and two out of the 3 democratic nominees for Attorney General.
In my mind, that's a who's who of some of the most progressive elected officials in the state. YMMV.
Posted by: Katy | Apr 20, 2008 9:28:48 AM
I'm so tired of people calling it an "open primary," it is not. It's a top two primary system.
from progressive trail:
"Why do proponents of the proposed ballot initiative to restrict the general election to two–and only and always two--candidates (a top-two primary system) keep trying to sell the idea this is an “open” primary?
The Oregon Supreme Court rejected their argument that their measure should be called an “open” primary. The US Supreme Court has explained the system is not an open primary which allows voters to vote in either parties’ primary, but what is called a “blanket” primary, instead."
Posted by: Marc Abrams | Apr 20, 2008 9:29:14 AM
A couple of key reasons to oppose this:
1) It makes elections more expensive -- mail must go to EVERY registered voter, not just members of your party -- and so will deter good but poor and working class candidates from running.
2) As I read the measure, there is no provision to avoid a run-off if someone gets 50%+1 in the primary. What that means is that, in a four-way race which ends 70-11-10-9, the candidate who won in a landslide STILL has to spend the money in the general to beat the 11% candidate.
3) Follow up on #2: If, in all the solid D house seats in Portland and Eugene we're still fighting in the Fall whereas the GOP can keep folks from filing against each other in the East, we're still spending progressive dollars against progressives through November, not against the GOP and things like Mannix's ballot measures.
4) Cute little provision buried at the bottom -- and I have no idea why Phil would do this -- vacancies are NOT bound to who who the seat. In other words, folks, in Brad Avakian's Senate vacancy, the Washington county Commissioners could (because they dominate the Multnomah side) fill the seat with a Republican. I somehow doubt that would be remotely true to the intent of the voters.
The idea is terrible. Vote it down.
Posted by: Hmm | Apr 20, 2008 9:37:28 AM
However, can you give me a few other examples of bad runoffs under the LA system since then?
"Bad runoffs" is not why even LA has dropped this system, Jake. For all of you (and particularly Sal, one of the most pseudo-informed commentators who "graces" this blog). LA abandoned this system about a year ago now because for Federal congressional elections, the NOVEMBER election was the PRIMARY. They then had to run a runoff (if one was needed) in DECEMBER. This was costly, and left LA in a position where only the most well-connected (read party approved) candidates even bothered to run.
Now if people who think they know so much would bother to study the actual court rulings, they would learn the reason is that the courts in Love v. Foster and Foster v. Love found that a fundamental federal voting statute from the 1800s barred a state from declaring a winner in a race before the first Tuesday after the first Monday. Reed and Kiesling argue the WA and proposed OR version don't actually declare a winner in the pre-November primary and so there is no problem.
What they DON't point out though, is the REASON the courts cited in ruling against LA based on that statue, and then took control of LAs system for Federal election with the aforementioned result. Namely, the deeper issue, as explained by the courts citing the statute, they ruled against LA for declaring a winner before the first Tuesday after the first Monday because this would announce which PARTY had won before a unified voting day, exactly the issue Nick is in effect citing here. Congress was trying to prevent this because they felt it could upset elections in other states who had a genuine competitive general election between parties in November. The reason is that control of the House and Senate has nothing to do with individuals, but is solely determined by which party gets a majority.
Aside from the sociopathic tendencies of the current Court, for those who think this is off the mark or it would have been cited by the Court --- wrong again. Because we live in such narcissistic times, and populist jungle primaries are examples of that, the geniuses in WA made a FIrst Amendment argument and not the statutory argument that at least put LA on the path of finally dumping their version of this system. As we saw, the Court looks at First Amendment arguments in a chaotic and cynical way: Everybody thinks they have one because they didn't learn to play nice, or more likely to respect arbitrary authority in the current Court's view, in kindergarten. The Court saw no need to take up substantive issues that weren't raised in this situation where a navel-gazing majority in WA wanted to cut their nose to spite their face, as they have.
Posted by: Jeff Alworth | Apr 20, 2008 9:43:39 AM
Great post, Nick! I'm about to head off to stand in a breakfast line for an hour, so I'll comment at length after I've digested this (and a mushroom omlette).
Posted by: sandra longley | Apr 20, 2008 11:00:27 AM
I can't believe this is a serious proposal in Oregon, what next? undemocratic cacuses? someone is putting Baileys in their latte'. How can you possibly see this elimination of the party system as good for voter turnout? If you end up with 2 candidates from the same party as the only choice, you've eliminated participation by the voters in the "out" party, and diminished incentive in the "in" party. NO-this is a non-starter
Posted by: Sue Hagmeier | Apr 20, 2008 11:01:58 AM
And even more to the point, the 2008 edition of Keisling's measure allows the parties to endorse any candidate they want -- and withhold the partisan designation from all other candidates. In other words, the Democratic Party absolutely CAN select a nominee - prior to the initial spring election, put a D after their name, and disallow anyone else from putting a D after their name. Voila! Party nominees! Selected only by Democrats!
Ok, so this one is even nuttier than I thought, and more closed. This measure would CLOSE the "primary" to candidates, because the game of figuring out how not to split the vote would get more intense.
Kiesling's latest violates the principal of independence from irrelevant alternatives as described in studies of electoral systems. (Look up Arrow's Theorem.) A group's preference for A over B can be radically subverted if a subset prefers C over A. In other words, in an election in which a majority would prefer A over B or C in a two-way race, in a three-way it's quite possible that B and C would advance to the runoff election, and that A would appear to come in third.
The paid signature gatherers on the street are using a script that describes this turkey as "Open Primary." (I've been approached a half dozen times, the same way every time.) I guess that must be the term that polled well. Since the term means something else elsewhere, since this approach is not what is used in those places that have "Open Primaries," one can only conclude that the script is designed to mislead. (It doesn't get better after the opening line.) If Kiesling thinks this is such a great idea, why does he find it necessary to lie to get signatures?
Our primary is closed only in that only voters registered with a party are a part of choosing that party's nominee. Registration, however, is OPEN to anyone, no qualification, no loyalty oath. ANYBODY can take part in choosing one of the nominees.
And Sal, the Supreme Court turned down your group's request to put "open primary" back in the title, and pointed out that under your measure "…the new system would obliterate the old…" and would "…virtually eliminate primary elections as they heretofore have been known in Oregon…." It also pointed out that this proposal would change the general election also, closing it to the alternative means available now for minor party and independent candidates to reach the general election ballot, and changing the nature of the ballot presented in November. Your argument that they didn't specifically disallow the term "open primary" is a weak one; that was not the question before them, and they do not typically answer questions they are not asked.
So while "openness" may seem to equal "goodness," there is an Orwellian cynicism hiding behind it that is more than disappointing.
Posted by: Sal Peralta | Apr 20, 2008 11:38:15 AM
Tom, you are one of the most cynical, bitter commenters I've ever come across in politics. Small wonder that you never post under your own name.
Posted by: Nick Wirth | Apr 20, 2008 12:13:03 PM
Jake - That's a good question, and to some extent it's hard for me to answer because I'm unfamiliar with LA politics. However, a good example of the ideological spoiler situation was the 1995 Gubernatorial election. There were several major candidates in the election, the two major candidates on the extremes won: Cleo Fields was a liberal (by LA standards) congressman, while Mike Foster ran as the conservative in the race. Mary Landrieu was within .6% of Fields in the primary, but did not advance due to the presence of candidates such as Melinda Schwegmann and Phil Preis. This is the more common occurrence; the candidates who are furthest left or right of the field get the voters who are to the left or right of them, respectively. Meanwhile, all of the other candidates split the voters who are in between.
The 2003 Gubernatorial election is a similar situation where candidates played a spoiler role ideologically, though to a different effect than most. Two Democratic candidates; Ieyoub and Leach were very similar ideologically, and split the more liberal voters amongst themselves, which allowed the moderate Blanco to advance because she was the only major candidate in the middle of the spectrum.
The 1990 Senate campaign also highlights the polarizing effects of the jungle primary, and again featured KKK member David Duke. J. Bennett Johnston was the incumbent Democratic Senator, and the most liberal candidate in the race (more because he was the only Democrat than because he was actually liberal). Duke was the right wing Republican candidate, and Ben Bagert was the moderate Republican candidate. The state GOP endorsed Bagert in an effort to defeat Duke, who was a major embarrassment for them. Polls still showed Bagert in a measly third place, and so to prevent a runoff that would have been a mark of shame for the state republican party, its endorsed candidate dropped out and officially backed the Democratic incumbent to narrowly prevent the runoff.
I'm sure there's many more examples in other races around Louisiana. The problem with Sal's argument is that the jungle primary has not been moderating in Louisiana. In contested races, it is still a small percentage of voters who choose what candidates will be in the general election. While these voters may not fall along traditional party lines, candidates still win by appealing to their base, while candidates in between the extremes split the moderate votes. Also, it's easy to say candidates like Kim Thatcher wouldn't win the top-two primary, but candidates like her have historically fared well in Louisiana, and second I think you're forgetting she won the general election, not just the primary, so apparently she managed to do well enough amongst the total population.
Posted by: Lindapendent | Apr 20, 2008 12:14:20 PM
SCOTUS says this is not an “open primary.” In the Washington State Grange decision the US Supreme Court explained that the kind of system is a “blanket” primary (quote at bottom, as well as part of an earlier post on BO from Richard Winger, someone we all can agree actually knows the ballot access process).
In Keisling v. Myers, the proponents argued that the ballot title should include the term “open primary.” Oregon’s Supreme Court called their description “inaccurate.” “[P]etitioners' assertion that adoption of the proposed measure would simply set up a “parallel” primary system is inaccurate. * * * [T]he new system would obliterate the old." The Court added that the system would radically alter the general election ballot as well.
What’s an “endorsement” anyway? This is not a term defined in statute or the ballot measure. Keisling’s measure allows party “endorsements” (not defined anywhere), but uses both the terms "nomination" and "endorsement" in various sections, which strongly implies each word means something, but not the same thing.
In Washington State Grange SCOTUS did find that WA law allowed for parties to nominate candidates, but OR law does not have a separate nominating process for the major political parties (currently only Rs and Ds are “major”). In OR the defined nominating process for Rs and Ds is the partisan primary that this measure would replace [ORS 248.007(7)]. In addition to not providing for a major party nominating process separate from the new blanket system, the only actual process for nominations which would be left in the statutes if this measure becomes law is the nomination process for minor parties (ORS 248.009), which the measure fails to mention at all, so presumably does not disturb or replace (drafting error, intentionally targeting only the Ds and Rs, presumption that Rs and Ds can adopt some bylaws without state approval to conduct “endorsement” caucus??)
Failure to provide for a true party nominating process would likely be a fatal Federal Constitutional flaw. In 2 recent cases which considered forcing parties to allow any voter to vote in their party primary by choosing that partisan ballot (true open primaries) courts held that there had to be specific alternative nominating process with the open primary merely an option.
In Miller v. Brown, 503 F3d 360, 368 (4th Cir 2007) (Virginia case), the trial court held that forcing a political party to select its candidates through an open primary severely burdened its right of free association. The court rejected the state’s arguments that it had such compelling interests in forcing the First Amendment deprivation upon the parties. The 4th Circuit upheld the decision, all times for appeal have lapsed earlier this year, and State of Virgina will amend law.
On March 5, the 5th Circuit in New Orleans heard Mississippi Democratic Party v. Barbour. Mississippi's only method of nomination is their open primary, and last June a U. S. district judge declared the state-mandated open primary unconstitutional. (However, it did not enjoin the recent Miss primary, which was held under the “old” rules).
The district court (trial court) held:
In order to correct this constitutional problem, the State of Mississippi can either (1) keep [the challenged statute], require mandatory party registration (with the option for a voter to designate him or herself as unaffiliated) * * * and consider the option of authorizing the parties to allow unaffiliated voters to vote in their primaries but not registered members of an opposing party; or (2) the State can fashion some other form of primary system that does not infringe on political parties' right to disassociate opposing-party members from possible party-raiding
Mississippi State Democratic Party v. Barbour , 491 F.Supp.2d 641, 661 (N.D. Miss. 2007)
SCOTUS on correct terms:
“The term 'blanket primary' refers to a system in which 'any person, regardless of party affiliation, may vote for a party’s nominee.' California Democratic Party v. Jones, 530 U. S. 567, 576, n. 6 (2000). A blanket primary is distinct from an 'open primary,' in which a person
may vote for any party’s nominees, but must choose among that party’s nominees for all offices, ibid., and the more traditional 'closed primary' in which 'only persons who are members of the political party . . . can vote on its nominee,” id., at 570.'”
The top-2 primary is not an "open primary." That should be clear from the SCOTUS note, political science texts and the opinions of election law experts. As Richard Winger of Ballot Access News has repeatedly explained, here in a post to BlueOregon about an Oregon legislative version of the blanket primary which failed:
"BlueOregon would do a service to everyone, if it would use the vocabulary used all across the U.S. The type of primary defeated in the Senate yesterday should not be called "open primary". "Open primary" is defined in many political science textbooks, and in US Supreme Court opinions. It means a primary in which parties each have their own primary ballot." I think the Oregon Independent should also do its readers the "service" of using the correct terms for this process.
Posted by: Lindapendent | Apr 20, 2008 12:20:19 PM
BTW--the Independent Party of Oregon has not taken a position on the blanket primary measure.
Posted by: Jeff Alworth | Apr 20, 2008 12:27:05 PM
Ah, fulla Genie's breakfast and ready to comment. A nice morning.
The biggest complaint I have is as a third-party sympathizer. Currently, minor parties can get their candidates on the ballot for general elections in the same way the major parties do--by nominating and running them. But this system would virtually stop any minor-party candidate from ever seeing a general election.
While it's true these candidates rarely compete for the seat, they do force the major party candidates to recognize the constituency they represent. It seems to me that this system would tend to produce two moderates who fight for the largest midsection of voters. The Green Party's platform could therefore easily be ignored if two Dems regularly win the top two seats: what's in it for them to talk to the 10% of enviros? Isn't it easier to pander to the 40% of Republicans and conservative independents?
The parties are against it for obvious reasons (it removes their ability to let the voters decide which is the best party candidate). But those who are skeptical of party power should also be against it.
Posted by: Chuck Butcher | Apr 20, 2008 12:48:25 PM
If you don't like caucuses as a primary selection method, you can just about be assured the the Parties will go to self financed caucuses in the face of such nonsense. You cannot MAKE them play your way, you can bribe them with state financing, but that's about it.
Why am I not surprised to see Peralta coming down where he does? That's not to indicate there's a lick of sense in it...
Posted by: Gil Johnson | Apr 20, 2008 1:03:26 PM
Jeez, Jeff, you usually make very cogent arguments, but this one is really out to brunch. Maybe too much energy going into digestion?
You state: "The Green Party's platform could therefore easily be ignored if two Dems regularly win the top two seats: what's in it for them to talk to the 10% of enviros?"
The major party candidates already ignore the Green Party platform most of the time, anyway. And when they embrace part of it, perhaps it's because that plank is the right thing to do.
The argument that "this system would virtually stop any minor-party candidate from ever seeing a general election" is totally backwards. What is being called a primary in Keisling's proposal is really the first general election (which, it occurs to me, is one meaning of the word "primary"), after which the top two vote getters go on to a run-off election. Thus any minor party candidate who can qualify for the ballot will be able to make his or her case to the entire electorate.
In our current system, the state has decreed that only the Republican and Democratic parties are legitimate. There are only Republican and Democratic primaries. The state does not conduct a Libertarian Party primary election, or a Green Party primary election, or an Independent Party primary election. These minor parties have to select their candidates through other means, such as nominating conventions or caucuses. About a third of Oregon's citizens are not affiliated with the two major parties. Why should their tax money go to pay for closed primary elections of the two major parties? If the parties want an election to select their candidates, they should pay for it themselves.
The Keisling proposal would definitely make more legislative elections competitive. I'm not so sure they would all become more centrist. In my Southeast Portland enclave, I could definitely see an articulate and engaging Green Party candidate mounting a serious challenge to a conventional Democrat.
I suppose the biggest change is that the Keisling proposal would render party affiliation less relevant. And that's why is most vociferous opponents have deep financial or emotional stakes in their parties.
Posted by: Hmm | Apr 20, 2008 1:05:12 PM
In Washington State Grange SCOTUS did find that WA law allowed for parties to nominate candidates, but OR law does not have a separate nominating process for the major political parties (currently only Rs and Ds are “major”).
If this is an accurate rendition of the decision (and I have no reason to believe it isn't), it further illustrates the problem with the WA decision. Namely, SCOTUS is condoning a primary that can occur before the first Tuesday after the first Monday in November so long as it is NOT really intended to choose party nominees (an "open primary"), but instead winnow down the list of contenders for a seat (a "blanket primary").
They have directly, but presumably purposely and apparently relatively unnoticed, struck at the SCOTUS precedent at the heart of the Love v. Foster and Foster v. Love in LA already discussed above.
If WA holds a Federal congressional primary before the first Tuesday after the first Monday in November, that primary inherently has the possible outcome and statutory of intent, of moving an election to a point where a party is declared as a winner if the top two are from the same party. The statutory intent of this outcome is undeniable: The very idea of the blanket primary is to reduce the number of contenders and the law prevents new challengers from being on the ballot in the general election even if the primary winners are from the same party.
That state statutory intent runs directly counter to the intent behind the Federal statute cited by SCOTUS in the LA cases of preventing any state from making known which party will hold their seats in Congress before a single national, unified election day.
If we get to the point that the blanket primary has to be challenged in OR, I hope the lawyers launching the lawsuit are swift enough to focus illegality of this system for at least Federal congressional offices, rather than the navel-gazing but clearly flawed and irrelevant First Amendment argument. Reed and Keisling, with legal advice from decidely non-progressive sources, have been careful, and now obviously successful, in traversing the First Amendment argument. Most of you need to spend some time thinking about why you don't get that rather than making up essentially nonsensical First Amendment arguments. Some of you of course are just anti-party, which is a separate question that indicates a fundamental ignorance about the complex series of real-world balancing mechanisms that are the real genius of our partisan, representative, democracy
Posted by: Sal Peralta | Apr 20, 2008 1:37:47 PM
Also, it's easy to say candidates like Kim Thatcher wouldn't win the top-two primary, but candidates like her have historically fared well in Louisiana, and second I think you're forgetting she won the general election, not just the primary, so apparently she managed to do well enough amongst the total population.
The primary system in Louisiana is not the same system that is being proposed by Keisling.
The fact that Thatcher won a General election as a republican in a Republican district, even though she was a weaker general election candidate than Backlund merely underscores my point about Backlund.
The D's ran a very strong candidate in that district and gave him $100,000 to spend, and he got crushed -- as would any D running in Newberg/Keizer.
If you want to elect a moderate in such a district, they need to get out of the primary. This reform will help to accomplish that in Oregon.
And Chuck, as a dyed in the wool partisan, and Democratic county chair who failed to recruit a legislative candidate in a winnable district, I am not surprised that you just don't get it with regard to the open primary.
I'm joined by John Kitzhaber, 2 out of 3 democratic nominees for SOS, a host of other progressives, and just about every editorial board in the state. I feel reasonably confident that I am on solid ground in my support of the Open Primary, even if a handful of party apparatchik like yourself disagree.
Posted by: LT | Apr 20, 2008 1:40:07 PM
"If you don't like caucuses as a primary selection method, you can just about be assured the the Parties will go to self financed caucuses in the face of such nonsense. You cannot MAKE them play your way, you can bribe them with state financing, but that's about it."
Where will the funding for self-financed caucuses come from? How many county, cong. district or state central committee meetings regularly attract more than 50 voting members?
My guess is this is more about theory than about how folks act in the 21st century.
First, why would this have been worse in the 2004 HD 25 situation than what happened (Thatcher defeated Backlund, from all appearances, no organizational support for Pike the Dem. nominee that year)?
Or does no one want to talk about that because of what an old friend describes as "a brilliant theory mugged by a brutal gang of facts"?
Does it not matter that over 20% of the population is not eligible to vote in primaries unless they register partisan and then re-register NAV after the primary?
The people who oppose this idea because by golly parties have rights!! don't do their cause any favors.
Posted by: Richard Winger | Apr 20, 2008 1:41:02 PM
"Election" is defined as an event at which someone can be elected. No one can be elected in the May primary in Phil Keisling's initiative. So, the May event is not an "election". Even if someone gets 100% of the vote in May, he or she still must run in November with write-in space on the ballot. Under the initiative, the May event is only a device for severely winnowing out all but two candidates for the "election".
Posted by: Sue Hagmeier | Apr 20, 2008 2:25:14 PM
Does it not matter that over 20% of the population is not eligible to vote in primaries…?"
This distorts the concept of "eligibility." Party affiliation by registration (or not) is a choice, not something that attaches based on some personal characteristic. This argument tries to equate sitting out a nominating process by CHOICE to being barred from voting by injustice. That is not only wrong but a slight to those who fought against real injustice and disenfranchisement.
Posted by: Hmm | Apr 20, 2008 2:41:49 PM
"Election" is defined as an event at which someone can be elected. No one can be elected in the May primary in Phil Keisling's initiative.
I'm not sure what point Winger is trying to make here: An attempt at being precise to further illuminate an argument in support of the initiative or not. Regardless, this is not correct. "Election" may be defined in a simple dictionary definition this way, but this is not a complete definition and one that is misleading at best even in the present case.
First, we talk about union elections in which rank-and-file "elect" to be represented by a union. Also we talk about an election on an initiative in which people are "electing" to enact what ever law is embodied in the initiative.
Keisling's brain dead initiative does in fact have the explicit intent of "electing" a party in the primary because it not only allows two candidates from the same party to be the only options in the general. As a winnowing election it's intent is also to prevent by a law any party which was eliminated in the primary from having any other path onto the general ballot.
So Richard, you need to clarify your point, because your comment is simply false on it's face.
Posted by: Jenni Simonis | Apr 20, 2008 2:59:29 PM
Where will the funding for self-financed caucuses come from? How many county, cong. district or state central committee meetings regularly attract more than 50 voting members?
Obviously the party would end up paying for it. It would probably end up being held in the cheapest places as possible - or places like libraries which are free. You'd end up with a very small number of people voting, instead of the thousands who choose now.
I don't even know that we'd go to caucuses. It may be decided that the central committees in each county get to make that decision, with a proportional vote for things like state legislative seats that cross county lines. So you might end up with 50 or 60 people making a decision on who the Democratic candidate will be in Multnomah County where you normally have more than 70,000. Yea, that's the way to give the choice to more people...
Plus, there are still the other changes in this initiative that a few of us have mentioned - legislative vacancies and PCP elections.
Posted by: Linda | Apr 20, 2008 2:59:44 PM
Currently, minor parties can get their candidates on the ballot for general elections in the same way the major parties do--by nominating and running them. But this system would virtually stop any minor-party candidate from ever seeing a general election.
This is not so.
Currently major parties must use the partisan state-supported vote-by-mail primary exclusively [ORS 248.007(7)] and potential candidates file certificate or petition of candidacy with SoS (SEL 101). The measure eliminates the current primary process and requires a blanket primary only for those parties which are “otherwise required “ to hold a primary (which in fact are only Rs and Ds).
Minor parties have an entirely separate statutory nominating process [ORS 248.009], their candidates do not file anything with the state, and the party itself files a certificate of nomination, unlike the certificates and petition for candidacy for the primary, filed by the candidate. These particular statutes are left undisturbed and while the top-two from the blanket must be on the general election ballot, the measure does not expressly prohibit the minor nominees from being on the ballot (regardless of what Vance Day or whoever says what about minor parties, the words of the measure trump anyone’s idea of an op-ed or Voters Pamphlet argument).
Whether just bad drafting or a strange desire to invite lawsuits, who knows?
The measure does not itself forbid minor parties from nominating candidates, while it allows only “endorsements” by the majors, as it eliminates their nominating process. At most, an endorsement is an expression of approval or preference, such as a union endorsing a candidate, it does not currently have any legal significance. "Nomination," however, does have legal effect as it is a process which assures ballot access for the nominee of a qualified party in the general election. An “endorsed” candidate has no such assurance.
Also, SCOTUS, in deciding Washington St Grange merely showed its new reluctance to find statutes facially unconstitutional, but invited and seems to expect another challenge to WA primary system “as applied,” if and when the parties can show that there was actual voter confusion about who party nominees were-- which they will.
As for Foster v. Love, SCOTUS held only the portion of LA blanket primary which did not allow for a top-2 runoff and declared a winner in a race for a federal office when a candidate in the blanket primary received 50% +1 votes. In such a case, this winner would be determined prior to the date of the election called under the Elections Clause of the Constitution (1st Tues after 1st Mon in Nov). This is how OR conducts elections for nonpartisan races where a candidate can win outright in May if she gets 50% +1 (happens very often in judicial races), but it is not the system proposed by Keisling’s measure–there is always a top-2 runoff, so I just don’t see vulnerability under the Elections Clause for federal races.
Posted by: LT | Apr 20, 2008 3:09:04 PM
Jenni, my point is this: "the party" doesn't pay for anything. A vote of the central comm. or whoever authorizes and expenditure (sometimes after heated discussion). The Treasurer or whoever is authorized, writes the check, and that is listed on the C & E for the party as an expenditure.
There are a lot of logistical questions to be raised about the procedure of caucuses. And if the individuals in any central comm. decide there is a better way to spend the money than holding a caucus, no amount of theory could force those folks to spend the money and other resources to put on a caucus.
But then, in the downstate legislative districts, often folks are glad to get one candidate to run, much less have a contested caucus.
Posted by: Jeff Alworth | Apr 20, 2008 3:17:48 PM
Gil, on this point:
The argument that "this system would virtually stop any minor-party candidate from ever seeing a general election" is totally backwards. What is being called a primary in Keisling's proposal is really the first general election (which, it occurs to me, is one meaning of the word "primary"), after which the top two vote getters go on to a run-off election. Thus any minor party candidate who can qualify for the ballot will be able to make his or her case to the entire electorate.
There are two issues as I (perhaps dimly) understand them. The first is getting on the ballot, the second is getting elected. Currently, candidates can make the general ballot by virtue of being members of minor parties. Four years ago, for example, four candidates ran for Treasurer, two from the major parties and two from minor parties. Under the jungle system, there could never be more than two. The Libertarian and Constitution Party candidates could run in the primaries and hope--futilely--to make the top two. It would virtually--one need's to leave room for the exceptions--eliminate minor party candidates in the general.
If you are a minor-party candidate and you want to win the election, jungle primaries could conceivably help, particularly in a large field. You could hope to squeak out a win with a small margin in the primary and then get legitimacy going into the general--a kind of legitimacy you'd find it harder to muster as a Green, say.
Example: in a heavily Democratic district, only one serious Dem runs, scaring off other Ds and, in the process, serious GOPs. A couple of fringe GOPers sign up, as does candidate X, a Green. The vote comes in: 70% for the Dem, 15% for the Green, and 10% and 5% for the fringe GOPers. Now a green is in the general, one of two.
Is it worth sacrificing the right of minor parties access to the ballot to allow for the rare case of a very long-shot bid by a minor party in the general? As a voter who occasionally goes off the reservation to vote Green, it doesn't seem like it to me.
(I may well be out to brunch here, though. I haven't been involved in this campaign and I may be missing something important.)
Posted by: Hmm | Apr 20, 2008 3:43:02 PM
As for Foster v. Love, SCOTUS held only the portion of LA blanket primary which did not allow for a top-2 runoff and declared a winner in a race for a federal office when a candidate in the blanket primary received 50% +1 votes. In such a case, this winner would be determined prior to the date of the election called under the Elections Clause of the Constitution (1st Tues after 1st Mon in Nov). This is how OR conducts elections for nonpartisan races where a candidate can win outright in May if she gets 50% +1 (happens very often in judicial races), but it is not the system proposed by Keisling’s measure–there is always a top-2 runoff, so I just don’t see vulnerability under the Elections Clause for federal races.
Linda, your reading of Foster v. Love is typically superficial of supporters of Keisling's system - whether that is intentional or indicates the limits of your intellectual skllls is something only you can decide. Your critical thinking skills are poor here, and it is important to show people how facility with language, which is relatively easy to attain, is not representative of critical thinking ability, which is not nearly as easy to attain, as you demonstrate.
The reason for the Federal statute cited in Foster v. Love, as I've already indicated, is because the real concern of the Congress behind the Federal statue was stopping the possibility one state could influence elections in another state by declaring what PARTY had actually won a seat in Congress before the designated election day BECAUSE control in Congress is determined by whichever Party has the most seats. This is exactly the pathological outcome Nick is discussing here.
Remember too that these people were still had keen knowledge of pluralistic Parliamentary government in which people specifically vote for a party by voting for the party representatives. Our Founders explicitly rejected this type of parliamentary style government, while trying to retain representative government, and since early on Congress did what was necessary to sustain the distinction between our form of representation and parliamentary-style representation. In this case that means setting an election day so that no state could influence another by declaring a winner for a state and therefore declaring what PARTY held the state's seats in Congress.
So your argument is irrelevant to the deep issue the Court was deciding, and your dismissal of the challenge on the superficial issue is simply flat-out wrong. They simply did what Courts are bound to do: Go to issues as presented and find the clearest issue on which to rule. Through just reading one part of the statue and congressional record, the could prohibit LA from declaring what party had won before the November election day by simply prohibiting declaration what person had won in a pre-November primary without getting any deeper into the matter.
Of course, it would be up to plaintiffs challenging the law to bring this issue up to the appeals court (SCOTUS can do whatever it wants). Your argument would be borne out in court, however, if those arguing against the blanket primary shared your particular superficial and misleading analysis of Love v Foster. In WA they choose to make a First Amendment case in the appeals system because they thought was the easy win, and couldn't bring up anything beyond that in SCOTUS that they weren't asked about.
And by the way, for those who think "write-in" is a valid and good way to the ballot, I'll remind you that WA state's most proximate experience is ultra-right-winger Linda Smith (R) from the WA district just north of PDX. The "Hazel Dell Housewife" demonstrated the results populist democracy most commonly delivers and that the Founders actually recognized was inimical to good government that preserved liberty.
Posted by: Sue Hagmeier | Apr 20, 2008 6:22:35 PM
This is fascinating (from Section 21 of the measure) "…the term in office of Precinct Committeepersons elected under ORS Chapter 248.015 shall be four years, and shall expire on the 24th day after the date of the of the primary election held in a presidential election year at which they were last elected."
Posted by: Lindapendent | Apr 20, 2008 6:24:13 PM
I am not a supporter of the ballot measure; I think it poorly drafted, but I do know how to read a SCOTUS opinion. The decision is not about some hidden legislative intent, it clearly is based on the wording of the LA statute (since amended).
It is useless to discuss anything further with someone so completely divorced from civil discourse. But in case anyone else cares about the actual holding in Love v. Forster, the only aspect of the LA open primary found unconstitutional was the declaration of a winner outright in the October primary in a race for federal office This is also clear in the 5th Cir order on remand [synopsis of Love v. Foster, 147 F.3d 383 (1998) follows]. LA "solved" the problem by moving the blanket primary to Election Day, and moving the run-off (if no one got a majority) to later.
Scalia, et al, in majority opinion state:
The State's provision for an October election addresses timing quite as obviously as § 7 does. State law straightforwardly provides that “[a] candidate who receives a majority of the votes cast for an office in a primary election is elected.” La.Rev.Stat. Ann. § 18:511(A) (West Supp.1997). Because the candidate said to be “elected” has been selected by the voters from among all eligible office-seekers, there is no reason to suspect that the Louisiana Legislature intended some eccentric meaning for the phrase “is elected.” After a declaration that a candidate received a majority in the open primary, state law requires no further act by anyone to seal the election; the election has already occurred. Thus, contrary to petitioners' imaginative characterization of the state statute, the open primary does purport to affect the timing of federal elections: a federal election takes place prior to federal election day whenever a candidate gets a majority in the open primary. As the attorney general of Louisiana conceded at oral argument, “Louisiana's system certainly allows for the election of a candidate in October, as opposed to actually electing on Federal Election Day.” Tr. of Oral Arg. 6.
On remand:
The Court of Appeals, Politz, Chief Judge, held that: (1) Louisiana's practice of holding, and in most instances deciding, congressional elections prior to the federally established uniform election day is in direct conflict with federal law, but the remainder of Louisiana's election code, including open primary system, is not in conflict with the Constitution or with any federal statute, and (2) unconstitutional provision is severable from the remainder of the legislation.
Posted by: Sue Hagmeier | Apr 20, 2008 8:07:24 PM
Sorry about the typo. I only found a pdf of the measure that didn't easily allow copying and pasting so I had to retype.
Here's Section 21 in its entirety:
"Term in office of Precinct Committeepersons. Notwithstanding anything in ORS 248.015, the term in office of Precinct Committeepersons elected under ORS Chapter 248.015 shall be four years, and shall expire on the 24th day after the date of the primary election held in a presidential election year at which they were last elected."
C'mon, Sal. What does that mean?
Posted by: Sue Hagmeier | Apr 20, 2008 8:25:57 PM
Section 18 removes candidates for precinct committeeperson from the "Primary Election Ballot" and restores them only in presidential election years. Section 17 also only calls for election of PCPs in presidential election years, and Section 21 expressly changes the term of office of PCP to 4 years. ORS 248.033 requires that an organizational meeting of the county central committee occur no less frequently than every 25 months, and "Only a newly elected precinct committeeperson may vote on the election of committee officers," (248.035) at an organizational meeting. How would that work?
Posted by: Hmm | Apr 20, 2008 9:10:22 PM
Lindependent: Your comment about hidden legislative intent demonstrates you don't know how to actually read and properly understand an appeals court opinion, SCOTUS or otherwise.
First, be clear I pointed out how LA ended up with a bad system from the outset and how that is an undesirable outcome.
Second, and think real hard about this, the question is not whether the specific finding in Love v Foster for the specific facts in that case are precedent for this case since I never asserted that. The question is whether the underlying issue that led to the specific finding in Love v. Foster and Foster v. Love this case also applies to the WA primary or Keisling's dumb plan. Just to make the point clear to you: The Federal statue in fact doesn't even directly and specifically prohibit what LA did. It only establishes a Federal election day without and words stating why.
As Scalia's own words you cite show, the Court had to logically reason to the conclusion that the LA system had to be illegal because it produced results that they interpreted as conflicting with Federal law, after actually going into why the Congress had passed the law. Although LA only declared in a candidate to be a winner in specific contests which can't be forseen, just as the blanket primary would declare a party to be a winner in specific contests which can be forseen, it was up to the Court to apply their interpretation this conflicted with the statute declaring a Federal election day. And don't forget, the Court could even have decided the Federal law was an improper burden on LA. So your comment essentially just focused on the specific finding for the LA case is irrelevant and vacuous for purposes of the debate on whether the blanket primary is legal (whether it is constitutional is irrelevant since the constitution doesn't specify time, place, and manner specifics of election such as the election day.)
Third, no matter how you want to go off in the weeds with your irrelevant point, it is still just irrelevant. Just as in the LA cases, the courts would have to look at the blanket primary in terms of whether one can reason to the conclusion it leads to consequences that violate the Federal law, whose meaning has to be informed by what Congress expressed as the reasoning for passing the law. Referring to this as some hidden "legislative intent" is simply childish, but typical of the kind of stupidity that is all too common today. There is nothing "hidden" in the record about what the Congress intended way back over 150 years ago when they passed the law, even the court discussed it in their rulings. The Congress said their intent was to establish a single national election so the results in a state didn't in anyway effect the results in another state, even though they didn't put that intent in the statue setting a single national election day. If a state declares a party will hold one of it's seats in Congress, that is expressing a result to the other states before the designated election day in November that is nor more or less substantively prejudicial than saying which representative of the party will occupy the seat.
So you're right. There is no use in YOU debating the point because you don't have anything intelligent to say. And note, you were treated quite civilly, whether you understand and accept what that term means or not, because you were given the courtesy of having the substance of your dumb and irrelevant point acknowledged and refuted. Too bad if you don't like it.
Posted by: Dan Meek | Apr 20, 2008 9:25:36 PM
Sal, old buddy, the Oregon Supreme Court did not have to remove the term "open primary" from the ballot title approved by the AG, because the AG had already removed it. The draft ballot title used the term "open primary," but many folks submitted comments showing that the term "open primary" in law and in political science is completely different from the Keisling measure. So the certified ballot title from the AG removed that term. Phil then asked the Oregon Supreme Court to put it back into the ballot title, but the Court declined.
Posted by: Hmm | Apr 20, 2008 9:28:03 PM
And just to demonstrate why declaring a party to be a winner before the Federal uniform election day is actually more informative and potentially prejudicial than declaring a candidate to be a winner, try this thought experiment (you're excused Lindependent because this is probably beyond you):
If I were to randomly name 10 states, would you even know the names, much less party affiilations of even a large minority of Representatives and Senators from those states? So if you were told those people had won on the first Tuesday after the first Monday or a month before, would it have even meant anything to you?
But now if you had been told which parties had won seats in those 10 states a month before the election, would that be informative? And if you were told, given the current composition of the Senate, that 10 seats had switched parties in say May, tipping the balance back to the Republicans, would that be informative and potentially even effect how or whether you bothered to vote? Would it affect the business of the Senate?
Except for boneheads like Lindepdent and Linda, is the point clear now why the underlying issue raised in Love v Foster about a Federal uniform election day is applicable to a blanket primary that could declare a party as the winner well months in advance of the fall election?
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Posted by: Cody | Apr 19, 2008 7:19:25 PM
I haven't analyzed this issue thoroughly, but it seems like the problems you point out could be easily solved by tying the open primary together with instant runoff voting.