Before another presidential primary season is behind us, let’s take a hard look at what just happened.
No doubt you think you’ve heard it all by now, but if you’re patient, I might have something original for you.
You see, I think the whole process was illegal.
No. This isn't about Senator McCain. That's another story for another time.
I’m not fond of changing the rules in the middle of the game, and I’m not suggesting the results be tossed out.
It’s not because it’s too late. The presidential primary results certainly could be tossed out by a federal court if the right lawyers and clients – not necessarily the most powerful – but people strong enough to prevail upon the right court with some pretty good arguments with a lawsuit that could result in an injunction, forcing the States and the big national political parties to start over and select their delegates in a way that doesn’t violate the Constitution and the Voting Rights Act and the vast body of Supreme Court decisions telling us what all of this body of law says about the "Right to Vote."
I know. This isn't a democracy, its a constitutional republic, and you've probably heard somewhere along the way of there being no explicit "Right to Vote" in our Constitution.
You might be surprised to learn the Supreme Court disagrees, in no uncertain terms. In the same decision they also ruled you should not be deprived of your "Right to Vote" because of where you live. If you live in North Carolina, that's exactly what has happened.
What I’m suggesting is it a good time to think about how the big national parties, once again, have used the states, and vice versa, in having created a kind of basketball tournament as a way of selecting our presidential nominees.
This is not about money, either. That's also another story for another time.
I'm suggesting is there is a federal lawsuit here to be taken up here - at the very least to serve as way to get some very serious questions answered by the Supreme Court, answers to real legal questions which would tell us if this ridiculous primary system is really legal.
I don’t think it was legal, and while I’m definitely not a lawyer, I do know just enough about voting rights law to be dangerous.
If you read through the rest of this, you might become "dangerous" too. A danger to a bad system.
Begin this examination as a citizen of North Carolina. By no means the only issue, but central to this hypothetical case, is that fact North Carolina has its presidential primary on May 6. That means I will have no say about who, among the more than twenty capable candidates who were running for president during the first week of January, will be the nominee of my Party next November.
Now I may think that’s wrong, to be sure, but I also think it was illegal.
Examining this issue dispassionately, other issues crop up; questions that are overdue for answers, if I’m reading my Constitution and federal case law correctly.
Oh, and by the way, this isn’t about the Electoral College either, which seems to be what always comes to mind when I've discussed this with other adults.
Set aside the Electoral College for a moment, particularly the “Interstate Pact” idea you may have heard about, and the state Senate bill that would divide up North Carolina’s 15 Electoral College votes; 2 to the national candidate who wins the statewide vote, 13 each to the national candidates who win in each of North Carolina’s congressional districts.
That first idea requires approval of Congress to be constitutional, though some General Assembly Democrats are rumored to be supporting the interstate pact idea, despite some loud opposition, but only for 2012 and beyond.
The Interstate Pact would surrender all of North Carolina’s Electoral Votes to whoever wins the unofficial national popular vote, and would only become effective when a majority of the state join. So far, only two States have joined, though the Constitution forbids the States from creating such any such pact when it serves to the detriment of any State refuses to join (without the approval of Congress, that is).
That second idea has a better chance of passing here in North Carolina. State Senate Bill 353 stalled just a few hours before it was calendared for final passage back on July 30, during the very last days of the 2007 session of the current General Assembly, but not before Democrat House and Senate leaders barreled the bill through first the state Senate and then the state House, along Party lines and after cutting off debate.
Dividing up North Carolina’s Electoral College vote in this way may not be popular but it wouldn’t be illegal. Democratic National Chairman Howard Dean, it’s been reported, personally prevailed upon North Carolina’s Democrat legislative leaders to send that bill back to a House committee at the last minute. The DNC feared the same idea supported by Governor Arnold Schwarzenegger (R-CA) might then have passed California’s State Assembly and prevented their presidential nominee from taking California’s 47 “winner take all” Electoral Votes in November.
(For all the indignation from Democrats about Vice President Gore losing the Electoral College vote, while winning a plurality of the national popular vote in 2000, it’s been interesting to witness how almost none of them, with the notable and brief exception of Senator Hillary Rodham-Clinton, made a serious effort to amend the Constitution to elect the president by popular vote.
Instead, by pushing one or both of these two ideas that are new to North Carolina and other states, under the radar, Democrats have been working to make an end run around the more "difficult" process of amending our Constitution.
But forgive me. I have asked you to set aside the Electoral College for a moment, and I guess I couldn't leave it alone myself. This is about the presidential primary system, why I think it is illegal and why I want the courts to answer some serious questions raised by the use of such a ridiculous system.)
As 2008's presidential primary season draw to a close a lot of voters are wondering “what happened” and many more are shaking their heads disappointedly.
There’s been no end to the Monday Morning Quarterback-talking heads, each with golden hindsight, knowing results of many autopsies performed on so many fallen candidates who can now criticize freely without fear of contradiction.