Conservative/ACLU Arguments Beg the Question on Florida/Michigan Primaries

This past Saturday, the Democratic National Committee Rules Committee voted, as many anticipated, on seating the Florida and Michigan Democratic delegates with only half of vote. Moreover, 59 Michigan delegates were awarded to Barak Obama, notwithstanding he was not on the January 15 Michigan primary ballot. As Clinton adviser and Rules committee member Harold Ickes asserted, the outcome for Michigan was a hijacking of voters’ intent because it assigned delegates to Mr. Obama even though he did not win them.

As we reported last week, Senator Arlen Specter (R-PA), the former chairman and now ranking minority member on the Senate Judiciary Committee, is seriously evaluating whether he should call for Congressional hearings. We know that the Senator’s political brain trust was working around the clock to analyze a response to the DNC decision. Although having no direct confirmation, we would expect Florida Governor Charles Crist and Michigan Attorney General Michael Cox, among others, were waiting for the Democrats to cast their decision into stone before considering whether they should seek judicial intervention as per Specter’s brainstorming.

Specter, probably one of the most legally astute of GOP Senators, contends the DNC is violating one of the most fundamental of all constitutional rules, that once a vote is cast it must be counted. This constitutional principle, pronounced by the United States Supreme Court since Ex parte Yarborough (1884) and reiterated as recently as Gray v. Sanders (1963), is simply beyond reproach. This rock-bottom constitutional demand applies to primaries as well as general elections. United States v. Classic (1941). Reiterating black letter law stated in Harper v. Virginia Board of Elections (1966), the high court reasserted in Bush v. Gore (2000) that "once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person's vote over that of another."

Conservatives responded to our May 27 column that neither the Senate nor the courts have any business regarding the affairs of a political party on the First Amendment grounds of freedom of association. Their contention was viscerally shared by the ACLU, who graciously responded to us, but after our deadline. This Conservative/ACLU argument relies on major Supreme Court case, primarily Democratic Party of Wisconsin v. LaFollette (1981) which holds that First Amendment freedom to gather in association for purpose of advancing shared belief is protected by Fourteenth Amendment from infringement by any state, and moreover, that freedom to associate for common advancement of political beliefs necessarily presupposes freedom to identify people who comprise the association, and to limit the association to those people only. The High Court went on to hold that a political party's choice among various ways of determining makeup of a state’s delegation to party's national convention is constitutionally protected, thus prohibiting the state or courts from substituting its own judgment for that of the party.

But the joint conservative-ACLU logic falls under the petitio principii rule as their assertion is merely a strawman that begs the question, because obviously no one is disputing the Democrats have every right to set what its rules are and how its delegates are to be selected.

But once the Democrats evoke the state’s machinery in order to hold a public primary, a bright line is crossed. As the Supreme Court in Gray v. Saunders observed state regulated party primaries "show that the State . . . collaborates in the conduct of the primary, and puts its power behind the rules of the party. It adopts the primary as a part of the public election machinery. The exclusions of voters made by the party by the primary rules become exclusions enforced by the State." Grey v. Saunders went on to assert that "state regulation of this preliminary phase of the election process makes it state action."

The issue isn’t that the DNC is asserting some "for members only" admission to a clubhouse. The issue is that the Great States of Florida and Michigan held primaries, which although concerning one or another of our two major political parties, is part of the electoral process. These primaries weren’t private affairs. They weren’t even party affairs. They were official state actions. The DNC was acting by virtue of the power delegated to it by the legislatures of both Florida and Michigan. The taxpayers of both Florida and Michigan, not the DNC, paid for the primaries. If the DNC wants to exclude voters, or count only half of the votes cast, or award Obama delegates he did not win, then they should hold private affairs (like that San Francisco cocktail reception where Obama asserts most of us are bitter by virtue of believing in God). Let them sell tickets and pay for the events themselves.

Keep in mind that our major political parties are not the same as a local cub scout troop. The rule initially expressed by the Pennsylvania Supreme Court in Bentman v. Seventh Ward Democratic Executive Committee (1966) which Senator Specter properly observed, is now the law of the land in both Federal and state courts, is that "the relationship between political parties, the government and the public has become such that, in many areas, the public interest is not only directly affected by political parties but such parties actually perform public functions imposed upon them by law. Insofar as a political party performs statutorily-imposed public functions and to the extent that its actions constitute state action, the internal organization of such political party is a matter of such concern to the public as to make it subject to constitutional limitations and judicial restraint. When the internal organization of a political party directly affects its performance of such public function then not only may the judiciary intervene but it must intervene."

I don’t know about my fellow conservatives, but when I go to the polls to vote, I don’t want someone to cancel or dilute my vote. I expect my vote to be count as one vote, nothing more, nothing less.

I wish Wirs had asked what business the 50 states, the District of Columbia, or the Commonwealth of Puerto Rico have subsidizing the internal decision-making processes of political parties by running their primaries for free.

In the interests of accuracy, the actual statement by Barak ObaHmas, is: “I’ve been in 57 states, (with) I think one left to go.”, making a grand total of 58 states ....who knew?

Grammar Nazi gets it exactly correct.

Political parties should pay for their own primaries.

Once political parties open themselves to taxpayer subsidies, or if the parties actively seek subsidies, then the political parties must play by state and federal rules.

The DNC’s decisions on Florida and Michigan were completely arbitrary.

First, they disqualified all the votes.

Then, they counted half the votes and gave Obama votes he never received.

Clinton has every right to litigate this to the end.

It's actually a clever argument, and I think there may be some traction to it. When the Democrats initially refused to seat any of the delegates, I wondered how Obama would be able to appear on the MI and FL ballots in November. Most states have a minimum qualification requirement, which, though usually pro forma for the major parties could be argued as voided by the Dems refusal to seat any representatives of those states in convention. If this particular argument holds up -- there is no doubt it can't be fully decided before November if it winds up getting legs -- it would be impossible for any major party to impose representation penalties on any state unless the primaries were paid for by the party, which is not bloody likely to happen. In that case, next stop: National Presidential Primary.

“In that case, next stop: National Presidential Primary.”

Pick the top two candidates. How European.

I think you hit the nail on the head here.

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