An anonymous reader sent the following:
I hear from certain State Senators about how we need constitutional amendments to protect the majority from activist judges.
Those same State Senators have been trying for years to get a bill through the General Assembly that would close primaries to only those registered for their parties. They have been unsuccessful in passing such bills.
There is a court case involving two prominent State Senators attempting to get judges to overrule a law that allows for open primaries.
They can’t change the minds of lawmakers, so they are appealing to activist judges to force a change in the law? The exact thing they are fighting with regards to a certain constitutional amendment.
No matter how you feel about Virginia’s primary system…there is some serious hypocrisy being displayed in Virginia.
I don’t feel like I’m informed enough to make up my mind on open vs. closed primaries, but I believe this contributor makes a good point about “activist” judges.
Unfortunately, this contributor defines “activist” in an entirely self-serving way. I would define an “activist judge” not as one from whom the majority needs protection, but rather, one who: (a) refuses to apply explicit constitutional provisions; and/or (b) enshrines personal political preferences as “constitutional” norms.
Thus, the individuals criticized are not seeking an “activist” ruling, but rather, judicial recognition that the Commonwealth’s open primary system violates the associational and free-speech rights explicitly protected by the First Amendment.
An entirely activist ruling that would have to be…
Funny, conservatives also like to complain about sophistry, yet James doesn’t seem to mind engaging in that either…
If anything, wouldn’t a closed primary system violate free association? This isn’t a gentleman’s club, it’s a political race. Single-member districts and winner-take-all elections ensure that you can’t just “find your own political party” like you can with the club.
Anyway we’re arguing as if judicial activism is always a bad thing. Unfortunately it’s not so simple with judges; judicial injustice is bad, but sometimes justice means a whole lot of activism. Would you overturn Roe v. Wade because it was too much activism? The problem is, like James said, refusing to read the whole constitution as one entity. British common law didn’t even have a constitution, just a conception of justice. That’s why activism, though a last resort, is acceptable, compared to political or ideological brands of justice, or those that (by refusing activism outright) arbitrarily maintain the status quo.
Whether it’s good or bad is an issue for the legislature, but I seriously doubt it violates free association to allow people to associate in primaries.
If we had a more reasonably fair voting system this would not be an issue. All of these steps need to be taken together to fix a bundle of problems we have with pluralism:
remove party affiliation references from the ballot, if the voter does not already know, they aren’t qualified to make the judgement on party affiliation alone anyway
allow each “party” to send as many, or as few candidates for the same office as they can get petitions for in one election
revise the candidacy conditions so that all candidates, regardless of party affiliation, must pass the same hurdle to be on the ballot, and make it so that eligibility petition signers can only sign for one candidate per office per election
switch from rediculously un-democratic pluralistic, “least offensive to most” elections and begin using either Borda or Instant Runoff elections that get the “most acceptable to most” candidate as the winner for most elections. IRV and Borda both eliminate most of the huge bar to letting third party candidates compete effectively, and it removes the need for primary elections entirely by allowing multiple candidates from the same party to compete in the general election
for certain, state-wide offices, allow for proportional representation impacts (1st place gets the 1st office, 2nd place gets the 2nd office, 3rd place gets the third office) to do away with some gerrymandered districting
all balloting systems will have a paper trail that stays in a locked box with the machine, and some small percentage of any electronic systems will be routinely checked against the paper ballots to verify they match exactly
to set an example to the rest of the world, have a completely open system (open source software, open procedures, open counts and re-counts) and invite foreign and out of state observers to come witness the entire process to verify that it is 100% fair, and to embarass the rest of the world into adopting some, if not all, of the same democratic (r)evolutions
Sorry, I didn’t mean to sound bitter – but I really feel that we Americans need to challenge ourselves to continue improving our own democracy here at home before we can (with any integrity at all) even hope to inspire democracy in other lands.
A lot can be said on this subject. Of course, for many people who like to call themselves conservatives, the principle of a constrained judiciary only applies to issues that they oppose, not issues that they favor. Conversely, there are a number of liberals who are pleased when a federal court renders a carefully honed original intent decision if it favors their point of view. People are like that.
But the major lurking issues are: however helpful a closed primary system might be to party discipline in the nominating process, what would it mean to the long-term political viability of Virginia’s two dominant political parties?; is it prudent to circumvent the legislature on this point?; and given the tremendous disabilities imposed by virginia law against the formation of 3rd parties, would success in this lawsuit lead to the entire statewide political system being more dominated by very narrow and polarized cliques of long-time activists in each party to the exclusion of input from a vast “middle” (“middle” in this instance just meaning everyone between the activist clutch of party wonks in the GOP and their counterpart Dems) of the electorate? It’s plenty bad enough now, without actively seeking out measures that would accelerate this race to wings.
Even under present procedures there is a tendency for the nominating machinery of the two parties to be somewhat out of touch with the general electorate. Big victories (like Kaine’s) tend to happen when one or the other party stumpbles on a candidate who can flush out the undecided and cross-over voters. But frequently, the nominating instincts are to run to the wings. If just one party does it, the other one wins. When both parties do it, the voters are left in a real quandary. As I have noted elsewhere, the Bolling/Byrne example is a classic case of this kind of brittleness in current dynamics. I can only see this getting worse under a tightly sealed primary system. At some point after several nominations of that sort, the voters are just going to go nuts. But Virginia law has embedded within huge obstacles to third parties getting established and on the ballot. A post at NLS a week or so ago laid this out and I was surprised to see only a handful of comments on the issue.
The bottom line for me is, that whatever the legalities (and I understand the associational arguments), it’s just plain poor policy and bad strategy for the GOP to press this. It will not grow party participation. It has every prospect of narrowing the appeal of candidates and the Party. If both parties tightly control primary participation, the parties will be increasingly unresponsive to voter concerns.
Interesting post, NoVA Scout, as yours tend to be.
If I were a republican I would love to be able to vote in the Democratic primary and if I were a democrat I would love to be able to vote in the Republican primary. Voting the opposing party’s least likely candidate to succeed in the general election would have a huge impact on election. But that is not really the issue.
The issue is whether both sides are going to be hypocrites and continue to say they oppose “activist” judges. The very idea that the Supreme Court is the final arbiter of the Constitution was brought about by an activist judge. We need to be truthful and just say we oppose judges that do not rule the way we think they should rule. To one person Roe v. Wade was an activist decision, to another it was sound law grounded in the constitution.
To answer Michael’s post (Frank’s is simply nonsense), no, a closed primary system does not violate free association, any more than the Boy Scout’s prohibition against admission of those who do not acknowledge the existence of a Supreme Being, or open homosexuals (being the subject of a Supreme Court decision), violates free association. The Supremes have repeatedly held that freedom of association presumes the freedom to exclude. Thus, political associations have the right to exclude from participation in nominating contests those who are not members. And we’re not talking about anything onerous here; merely the requirement that one register as a member with a Registrar of Voters, an association which can be changed repeatedly, and on a whim.
As for NoVA Scout, I was speaking to the constitutional issues only, not the tactical issues, over which there can be disagreement.
Travis is also correct about Marbury v. Madison as an “activist” decision. However — and without getting into abortion as a social policy — it is difficult to believe that anyone would characterize Roe v. Wade as anything BUT an “activist” decision. Even John Hart Ely, who supported a liberal abortion regime as a legislative matter, conceded that point.
Maybe more people ought to ask whether primaries are really such a good idea. At one time primaries were quite rare. Then in the 1970s folks bought into the notion that they were more “inclusive.” As it’s turned out, rather than open up the process of selecting a nominee, it seems to me the primary system has usually made fund-raising more important than anything else.
Democracy doesn’t demand primaries. Professional campaign staffers and fund-raisers do.
A rigidly closed primary doesn’t seem obviously superior to a convention. The advantage of primaries to parties and candidates is that they expose the candidates to the general electorate and can provide a kind of test run for the general – not just of the candidate, but of his team. A primary also tends to encourage debate among the candidates, whereas a convention tends to focus energies on organizing delegates. While it is possible to get unelectable candidates in either mode, it is far more likely that a dud candidate can emerge from the incestuous climate of the convention than from an open primary.
F.T. Rea, you bring up a very good point about the money needed for primaries. They, like campaigns in general, are increasingly expensive. However, I much prefer a primary over a convention. The ability of the few to manipulate a convention is just too great. At least in a primary, the candidates appear to have an equal chance. I don’t think that is the case in a convention.