As the primary season draws to a close, We the People have the opportunity to learn from what has transpired these past months. The rules and regulations governing the primary season are not derived from the Constitution. The Founding Fathers had an abhorrence of the very concept of factions. Indeed, for much of our history, the primary had little role to play in the selection of candidates at the local, state, and national level. Times have changed. Primaries now have become an integral part of the election process. In so doing it has generated problems.
OPEN PRIMARIES
At present most primaries are exclusive – you have to be a member of a political party to vote in the primary to select a candidate for that party. Sometimes, a voter has the option for the candidate of either party with the votes still being tabulated separately. Once in a while, there are open primaries meaning all the candidates for a particular electoral position are listed on the ballot and one may choose from among all of them as in the general election. The latter option is the one which gives the increasing number of independents, people who belong to no political party, the opportunity to participate in the selection process.
During this past primary cycle, the dominant issues for Republicans were the overlapping ones of vengeance and loyalty. They figured most prominently in the recent defeat of Liz Cheney to an opponent characterized as a “shape shifter” who morphed into what she needed to be to win in Wyoming. By contrast, a scant few of the real Republicans successfully resisted the call of the RINO Trumpican in Chief, and survived the primary. They could do so because they were not running in a Party primary.
The Westmore News, my local weekly paper just ran an article “The Boston Globe’s Jeff Jacoby argues taxpayers shouldn’t pay for primaries” by Dick Hubert. Following the link to the original article, I read:
Unlike general elections, which are public contests and must be funded and administered by public officials, primary elections are essentially private functions. They should be paid for with private funds and conducted under private supervision. The Democratic Party and the Republican Party (and the Libertarian, Green, and other minor parties) are not public-sector organizations. They are private corporations created to influence elections and public policy.
Jacoby uses the Country Music Association process of selecting award winners as an example of how a private organization handles and pays for its own winners. On a local level in my village and town, when the Democratic and Republican parties meet separately in the restaurants of their choice, the taxpayers do not foot the bill. Nor are We the People stuck with the tab for county convention, the state convention, or the presidential conventions.
Jacoby closes with: “… how political parties choose their nominees should be up to them. Let Republicans, Democrats, Greens, and all the others decide for themselves how they want to go about picking their nominees. Just don’t stick taxpayers with the bill.”
Exactly right.
MAJORITY RULE
I suspect a change to open primaries would change the way candidates are selected. It seems unlikely that political parties, especially in large states, can afford to conduct their own elections at their own expense. The consequences of shifting to open primaries probably would eliminate the current party primaries. Parties more likely would revert to conventions and back-room smoke-filled rooms to select candidates. On the other hand, it would be up to each state to determine the rules for how a name is placed on the ballot … and names could only be listed once!
If any candidate receives over 50% of the vote in the open primary, then it is game over. No need to hold a follow-up election to determine who the winner is.
If no candidate receives over 50% of the vote in the open primary, then the state has a decision to make as to how to proceed. One common way is to take the top finishers and move them on to the next round in November. States could select the top two or everyone with over 20% or whatever way they want. The goal would be to have one person standing at the end with a majority of the votes. So a state that advances more than two candidates to the November elections then would likely face the need for a third round such as we just had in the Georgia Senate races.
There is a second way as well to elected winners. In its last mayoral election, New York City used a ranked voting system. Under this approach, voters not only vote for their preferred candidate as usual, but rank other candidates as well. The candidates thus are winnowed down until only one is left standing. The contrast is with the recent Democratic primary election for the new Congressional 10th district. Prospective candidates came from all over including my own Representative to compete. As one might expect with a lengthy list of candidates, the winner netted only around 26% of the vote. Without a ranking system, Dan Goldman of impeachment lawyer fame, eaked out a victory. If victory required earning 50+% of the vote the results might have been different.
These two changes – open primaries and majority rule – would change the way candidates are selected.
LEGAL COMPLIANCE REQUIREMENT
It is no secret that gerrymandering is standard operating procedure. The rise of ever more powerful computer programs with tons of data, enable people to configure congressional districts as if they were tailor-made ready-to-order. One response has been legal challenges against such gerrymandered districts primarily drawn by Republicans but not exclusively. The advantage to the Republicans of such distortions is the Republican ace-in-the-hole for the 2022 elections following the advantage of being the party out of power.
The effort is becoming more and more difficult. At present Alabama, Georgia, Louisiana, and Ohio intend to use districting this November that has been rejected by the courts. This defiance is countered with the expectation that the legality of these maps will be decided in the future by the Trump Court but that it is too late to do anything this year. These skewered maps have a potential Republican advantage of five to seven Representatives. In the House of Representatives, that could be enough to make a difference.
What should Democrats do about his open defiance of the Courts? On an unrelated issue, gun-lobby activist David Hogg says:
Liberals are organized the way a bunch of 6-year-olds doing a group project together with a bunch of crayons are. Conservatives are organized like SEAL Team 6.
Or as I normally put it, Democrats bring a plastic spoon to a political gunfight and wonder why they lose.
The House of Representatives should pass a resolution declaring that people elected in states in defiance of the courts will not be seated. The Sergeant at Arms will bar them from entrance. The offices of any incumbents re-elected from those four states will be padlocked after Christmas. The restriction will be in effect for each state until such time as a state conducts a Court-approved election. A two-thirds vote of the House will be required to reverse this restriction. Will the Democrats do that or anything else? Of course not. They will moan and groan instead.
MOAN AND GROAN VERSUS DO SOMETHING
One final suggestion is not directly primary based. Instead it is to increase the number of primaries by increasing the number of states. Samuel Moyn, Yale, and Ryan David Doerfler, Harvard, suggested in an op-ed piece “Liberals Need to Change the Rules,” (NYT 8/21/22), that there is a need not to pack the Supreme Court but to pack the Union with new states. This suggestion echoes my own of applying the West Virginia maneuver from our last Civil War to the Confederate States today. The addition of at least eleven or more new states will disrupt the calculations for the 2024 elections. And it is already in the Constitution to do it. The result would be to decrease the ability of representatives of 40-45% of the population to hold the majority hostage.
All of the changes described in this blog could be done without any change to the Constitution. All of them together would create a Congress more reflective of the American people. None of them will even be tried even if they could Save Our Democracy.
