Presidential Primary Process Violates the Constitution and Voting Rights Act

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.

Some point to Mayor Giuliani’s “Florida Strategy,” for example, and say how ridiculous it all seems now. Some also gripe, as I have, about the “front-loading” of the primary schedule and the absolutely disproportionate influence of tiny Iowa and New Hampshire, and even South Carolina and Florida and their presidential primaries. Only Florida’s primary was closed for only registered Republican voters, and “same-day” voter registration, just enacted in a limited way here in North Carolina, is a loathsome traditional practice in New Hampshire.

After thinning out the ranks a bit there was a some chatter about the origins of our presidential primary system.

Our present system arised out of Democrat Party “soul searching" after the televised violence of their Chicago convention in 1968.

I remember it well. My father was a vice chairman of the Democratic National Committee, on leave from Eastern Air Lines where he was one of many corporate vice presidents. I saw it on television, but my Dad watched from the singularly unique vantage point of the Conrad Hilton, Ground Zero in Chicago during the Democrat's convention that year. I think people any longer understand how much of an effect the events of 1968 had on this nation.

Three floors above the street, he watched the "Yippies" throw their bags of their own feces and urine at Mayor Daly's finest bull police officers. He watched as the lights and cameras would only then be switched on, just in time to catch the angry, billy club swinging rage of those police as they turned on their shirtless attackers.

All we saw on television back home was police hitting kids with clubs.

Quite a show. Quite a year.

Interestingly, co-chairing the commission appointed by the DNC to redefine the state presidential primary, for the first time in our nation's history, as preeminent and to formulate the beginning of what is now our presidential primary season was Senator George McGovern (D-SD).

It is no coincidence George McGovern’s familiarity with this new system helped him win the Democrat presidential nomination in 1972.

Among those on a subsequent DNC commission, after McGovern’s defeat, was Governor Jimmy Carter (D-GA).

It may not be coincidental his familiarity with still further refinements to the presidential delegate selection process, after 1972, helped him win the Democrat presidential nomination and the presidency in 1976.

Working with state legislatures, pressuring here and there, and fashionably followed by Republicans, what originally were only a few state presidential primaries and caucuses, with New Hampshire and Iowa still maintaining their early “first in the nation” status, became our almost universal system, adjusted and moved about, both before and after every election since the stormy year of 1968 and now an unchallenged "tradition" in effect to this day.

Except in “Section 5” states, where any change in election law must, under the Voting Rights Act, be approved either by a three judge federal panel or the Civil Rights Division of the U.S. Department of Justice, little or no consideration in scheduling presidential primaries nor for the legality of national party committees putting sanctions upon those states who depart from their directives, has ever touched on the fundamental voting rights of persons living in other states. More on this point in a moment.

Very early in 2008, after still more candidates fell off the Twister Game, more and more voters became upset, saying “the way things are set up is just wrong.”

Almost no one can put their finger on just what it is that could be “wrong,” only that they disagreed with the results, and they disagreed loudly, particularly among Conservative Republicans.

Some can see New Hampshire’s open, and ridiculously early, primary, held in March in 1968 and during within a week of New Years Day, forty years later. And some can see a fundamental unfairness.

A small state, casting its ballots very early in the year, had the effect of diminishing the power of voters in other states simply because of where they happen to live.

Almost no one apparently knows this is specifically forbidden by the Supreme Court.

Of course, very few voters have much familiarity with complicated issues addressed in constitutional voting rights laws or their interpretation. Among those who do their expertise is usually in legislative gerrymandering or in meeting the requirements to protect the rights of minorities in the Voting Rights Act of 1967.

Only a very few seem to have guessed that “the way things are set up” isn’t just "wrong," it’s illegal.

We need Judicial answers to some very real and sticky questions touching on mandates set forth in the U.S. Constitution, federal law and the federal Voting Rights Act in particular.

In motions filed by plaintiffs in the on-going case of Dean, et.al. v. Leake, et.al., currently before a three-judge panel of the Federal District Court of North Carolina (Eastern Division) I recently found the following, written by the counsel for the Plaintiffs.

“The Supreme Court,” he wrote, “has recognized that the right to vote is a fundamental or “core constitutional liberty.”

The Court has ruled “(n)o right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined. Our Constitution leaves no room for classification of people in a way that unnecessarily abridges this right.” – Wesberry v. Sanders, 376 U.S. 1, 17 (1964).

“Diluting the weight of votes because of place of residence impairs basic constitutional rights under the Fourteenth Amendment." The Warren Court ruled, "just as much as invidious discriminations based upon factors such as race of economic status.” Id at 566.

"In the most recent decision made by the Supreme Court in this area we read," writes the counsel for Dean, “Discrimination against certain voters based on the fortuity of where they live in the state where they live cannot be reconciled with the commands of Reynolds (Reynolds v. Sims, at 377 U.S. at 567-68, an earlier court case, as cited in Larios v. Cox, 300 F. Supp. 2nd 1320 (2004)). “[t]he fact that an individual lives here or there is not a legitimate reason for overweighting or diluting the efficacy of his vote…[T]he basic principle of representative government remains, and must remain, unchanged-the weight of a citizen’s vote cannot be made to depend on where he lives….A citizen, a qualified voter, is no more nor no less so because he lives in the city or on the farm. This is the clear and strong command of our Constitutional Equal Protection Clause. This is an essential part of the concept of government of laws and not men”

Every State that hasn’t yet had a presidential primary this year has had no voice and no vote in choosing the finalists. That means their votes count less than the votes of other Americans merely because of where they live, something the Supreme Court said was illegal.

It means North Carolina's presidential primary probably doesn’t matter much (which most North Carolinians suspected would be the case anyway).

But in the unlikely event that North Carolina’s presidential primary May 6 actually decides the Democrat or Republican nomination, then “Immediate, Permanent, and Irreparable Harm” will have been caused to the voting rights of citizens, merely because they happen to live, in Kentucky, Nebraska, Oregon, South Dakota or West Virginia – places where state governments have mandated, at the direction of the national committees of both the Republican and Democrat Parties, that their taxpayers must finance the private election of only those Parties delegates to their respective National Conventions - after May 6.

One proposed remedy might be a Supreme Court decision requiring political parties to schedule Precinct Caucuses nationally and on the same day, for the purpose of picking Delegates to County Conventions; scheduling subsequent County Conventions for the purpose of selecting Delegates to State Conventions, on another day; and scheduling state conventions nationally also, on yet another day, for the purpose of picking delegates to their national conventions.

It would be a striking case of judicial activism, to be sure. Only Congress is empowered to strike such a deal, after all. But we're only talking hypotheticals here, after all. It's only the strength of your vote and the state in national elections that we're talking about anyway.

Right?

The late Senator Terry Sanford (D-NC), after losing his bid for the Democrat's presidencial nomination to the presidential primary reformer Gov. Jimmy Carter, in 1976, wrote a book highly critical of the presidential primary system. In A Danger of Democracy, Sanford wrote it wasn't necessary to return to smoke-filled rooms,but that the marriage of state and party in primary elections raises issues of ballot accessibility and voting rights that would "one day" lead to the need for reforms far beyond any problems "these reforms" were designed to repair.

There are other questions which we've skirted around, up to this point, for the sake of clarity. For example, are the Democrat or Republican parties public or private institutions?

A lot of things hang on the answer to that question, and it will not be enough to answer that they are “quasi-pubic” or “semi-private.” If an institution is public, there are some things it simply can’t do, and if it is private it reserves rights to its individual members from which they can’t be alienated.

It’s clear both our major established parties enjoy a kind of mutual incumbent protection through this system, and, in turn, an unusually special kind of strong scrutiny usually reserved for IRS-audited taxpayers.

But the present relationship between what are perhaps private institutions and the governments of the states may be very improper, however “traditional” history has made that relationship appear. The presidential primary is not a fundamental institution of American government

It has become not a "danger of democracy," as Sanford proposed, but an illusion of democracy. This relationship between party and state may be also be illegal, and the courts should be asked to answer this question in our hypothetical lawsuit.

As the Judiciary considers this entangled relationship of government and the “official status” granted to these institutions claiming to be private have certainly become every bit as much in need of openness as any “smoke-filled room” might once have been.

If these admittedly great, grand, ancient and even necessary institutions are in any way “public” then they must be required to live up to the standards of the Constitution, federal law and federal case law precedent.

If they are “private” then taxpayers in the states should not be required by their legislatures to finance the selection of delegates to their private conventions or pay for their delegate selection and presidential nominating primary elections.

If, as is generally held, the established political parties are private institutions then what business is it of the State to circumvent requirements of federal voting rights law by interfering, certifying, scheduling or financing their candidate nominating process?

If North Carolina state Senator Daniel Clodfelter (D-Mecklenburg) is correct when he recently said, “the (Democrat) Party is a private institution,” than the courts must determine whether the Republican Party in North Carolina is free to decide when and whom it will choose delegates to its national convention.

Since the Republican Party is not free to do this thing, and since Republican and Democrat executive committees (at least in North Carolina) are, at least in some cases, responsible for deciding who will replace elected officials who resign or die in office - how can they be private institutions?

And, yet again, if these are public institutions, then the U.S. Constitution and the North Carolina state Constitution requires these executive committees to be inclusive, open and subject to federal and state laws protecting each individual citizen’s “Right to Vote.”

In North Carolina the various Democrat or Republican executive committees are exempt from Open Meetings Laws as no other public institution can be (with the exception of personnel matters).

The methods used to select the presidential nominees of the Democrat or Republican National Committees is neither old nor “traditional,” and it is nowhere discussed in the U.S. Constitution with the exception of Amendment XXIV, where the word “primary” is included in the prohibition of poll taxes.

What is the nature of the special status afford only these two political paries that they can violate the federal Voting Rights Act and the U.S. Constitution at the expense of the Right to Vote venerated by the Supreme Court in the Larios and Wesberry decisions, and elsewhere?

Is the process of scheduling presidential primaries, showing a preferred and a non-preferred deference to any or many of "the Several States," like Iowa and New Hampshire, as clear a violation of the Voting Rights Act and Constitution as it seems?

Is there any credibility to the notion that any weight given to precedence in Supreme Court decisions, interpreting the Voting Right Act and Constitution anywhere, is invalid unless and until such precedence is applicable everywhere in the United States?

To the extent a major political party is, in any way, supported by the government while representing a particular ideology while claiming or disclaiming a belief that some things are eternally true and others eternally false (or even eternally ambiguous), does such public support for any political party amount to "respect of an establishment of Religion"?

To many, and especially among those who prescribe to the prevailing "religion of non-religion," who cling to the "myth of neutrality," these final questions are very provocative, even if all they provoke is a belly laugh.

Nevertheless, such questions are raised precisely because the presidential party selection process has become entwined with the business of government. It is not a hopeless entwining, but it is sufficient an entanglement that restrictions upon the powers of the governments enumerated in the Constitution are found at the heart of any hypothetical lawsuit that challenges what might very well be an illegal state-supported process of private institutions.

Many serious legal questions, beyond simple propriety or the effect upon any voter’s simple unhappiness with the end result are raised by the presidential nomination schedule and the methods directly supported by the government at taxpayer expense.

Under the U.S. Voting Rights Act, for example, it is illegal to submerge the voting influence of one politically cohesive group of voters who have, now or in the past, been subject to a pattern of discrimination. Their voting strength submerged within the voting strength of any other group of voters is plainly illegal.

The principle of “one man, one vote,” it would seem to me, ought to be enforced.

If voting right protections must be applied to the presidential selection process are the Democrat and Republican national committees subject to “preclearance” obligations?

If Section 5 preclearance is a requirement for entire states, when changes are made statewide and even when a minority of its counties are singled out for special interest in the Voting Rights Act, then it follows that any election process affecting the entire United States must also be subject to the special interest of the Civil Rights Division or a panel of federal judges – because all of the United States includes whole states and counties named as being of “special interest” under Section 5 of the Voting Rights Act.

The enumerated power where Congress derived its authority to enact the federal Voting Rights Act in 1967 comes from Amendment XV of the U.S. Constitution. Amendment XV: (proposed February 26, 1869 and ratified February 3, 1870)

• Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by and State on account of race, color, or previous condition of servitude –
• Section 2. The Congress shall have power to enforce this article by appropriate legislation.

That a Right to Vote was implied in the original Constitution may be seen best, perhaps, in the establishment of a Census for the apportionment of seats divided proportionally among the States for the U.S. House of Representatives.

In addition to Amendment XV, the United States later also established the direct election of United States Senators within the States in Amendment XVII (1913); recognized the right of women to vote in Amendment XIX (1920); suffrage in the District of Columbia in Amendment XXIII (1961); and the "Right to Vote" for all citizens at the age of eighteen in Amendment XXVI (1971).

It’s pretty clear the intent of the People to clarify the importance of voting as being extraordinary in importance is demonstrated a priori, and it is certainly presumed, if not explicit even before the enactments of those Amendments

Beyond this, and already mentioned, is the Poll Tax prohibition of Amendment XXIV (1964), where we read “the right of citizens to vote in any primary or other (federal election) shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or any other tax,” still further establishing the primacy of voting as a right of citizens even when such elections occur to decide the nominee of a political party.

The prohibition of poll taxes in the states, and specifically in the election of delegates of political party nominees, may have been originally intended only to prevent the Right to Vote from being denied in states where one party held a real monopoly. This was the case with regard to the Democrat Party in the States of the Confederacy until 1968.

The Right to Vote is established clearly as a protected right of all citizens of the United States within the language of the U.S. Constitution, and, as we’ve seen, in its interpretation by the Supreme Court.

The simple fact is the legal status of the major political parties should come under serious question, and more especially if any State, or even the United States, seeks (as it clearly has) to regulate what could be defined, in its most simple form, as merely a group of individuals in free association, organized to affect political action or inaction, or to elect "likeminded" candidates or, in essence, to “petition their government for redress of grievances.”

From George Washington, who from the very start of his first administration, hoped to steer the nation away from “partisanship” and “spoils,” to the present day when many voters, with very noble motivations, share a desire to remove “partisanship” from state judicial elections and elsewhere, very few have questioned the role of political parties as "established," or that they may even be an essential, perhaps unavoidable part of a free competition of ideas, or as a further prevention against insurrection.

With all the questions raised by this strange presidential nomination process that appears to be almost alien to our Constitution, why shouldn’t accountability and federal protections be set and the proper place of the political parties be defined, disentangling their private nature from public policy?