Posted by Harry Kresky on July 20, 2015 at 3:22 PM
Legal Corner: Laying Down the Markers
For Americans, it’s hard not to believe that winning is everything. If you can’t win, why play the game?
Recent developments in the effort to achieve nonpartisan primary elections have reminded me of what my mentor Fred Newman said about the subject of winning. Not only isn’t winning everything, but losing advances the struggle.
On July 7th the U.S. Supreme Court received a petition asking it to hear a case challenging the constitutionality of New Jersey’s taxpayer funded closed primary system, which bars 47 percent of the States’ voters who have chosen not to affiliate with a political party, from participating in the first round of voting, the primary. In most states, thanks to gerrymandering, the winner of the partisan primary of the dominant party in a district, is the winner in November. The case was brought by the Independent Voter Project, IndependentVoting.org and a group of democracy oriented New Jersey voters. It was dismissed by the Federal District Court and the dismissal was affirmed by the U.S. Court of Appeals for the Third Circuit.
With two strikes against us (I was part of the legal team along with Sam Gregory and Chad Peace) you might ask why not take a pass, rather than inviting strike three. The legal team believed that the case had merit and the petition to the Court would help us sharpen our argumentation and lay down another marker in the effort to wrest control of our elections from the two parties and assure that all voters can participate on an equal footing. Chad did the heavy lifting on the petition and produced a powerful statement that making party membership a qualification for full participation in the electoral process is un-American. It violates the First and Fourteenth Amendments to the U.S. Constitution that guarantee freedom of association (which necessarily includes the right not to associate) and equal protection of the law.
Each loss in the lower Courts brought home to us how the party viewpoint, as articulated by the New Jersey Attorney General, resonated with the judges. The resonance is surely an expression of the extent to which, from both a conceptual and power standpoint, partyism is deeply imbedded in our political and governing process.
For the past fifteen years, the major parties have effectively used the Courts to establish their right as private associations to exclude persons from their nominating process who are not party members. The seminal case is California Democratic Party, et al. v. Jones, 530 U.S. 567 (2000). The limits of that right is being tested in a series of cases involving partisan challenges to open primary systems adopted decades prior to the Jones case.
At the same time the American people, largely through the initiative and referendum (“I&R”) process, have sought to introduce nonpartisan primaries which would allow all voters to participate, not just members of a political party. In Washington State Grange v. Washington State Republican Party, 552 U.S. 442 (2008), the Supreme Court upheld the “top-two” open primary adopted by voters in Washington State against a challenge by the parties. Two years later the voters of California adopted top-two.
Most recently, the Supreme Court came down strongly on the side the people and their use of I&R to achieve electoral reform when it rejected a challenge to a nonpartisan redistricting commission adopted by a referendum of Arizona voters.
The times they are a changing. Let’s take every opportunity we can to allow the Courts, especially the highest Court, to weigh in on these issues so fundamental to the future of our democracy. Each legal engagement deepens our understanding of the issue and what is at stake. It allows us to contribute what we can to the organizing of the American people to take their country back.