Virginia Open Primary System Unconstitutional
The federal court decision from last year which found Virginia’s “open primary†unconstitutional as applied, was not appealed. It became final and binding on the State this week. The VA system forced parties which participated in the state-run primary election to allow any voter to vote in their primary.
The trial court held that forcing the party to select its candidate through an open primary severely burdened its right of free association. The court rejected the state’s arguments that it had such compelling interests in forcing the First Amendment deprivation upon the parties. Miller v. Brown, 503 F3d 360, 368 (4th Cir 2007)
The take-away from this is that the parties must be free to select their own nominees by some means.
Open primary lawsuits
The Virginia ruling was a partial win for the political parties. Virginia (1) has several nominating options in addition to primaries, and (2) allows incumbents to pick their method of renomination. The 4th Circuit held that, when an incumbent forces a primary on the party, the party may close the primary. But when the party freely chooses a primary, it has to be an open primary.
On March 5, the 5th Circuit in New Orleans heard Mississippi Democratic Party v. Barbour. Mississippi's only method of nomination is the primary, and last June a U. S. district judge declared the state-mandated open primary unconstitutional.
I believe that the 5th Circuit will uphold the district court.
Good point
Good point, unlike the Virginia system, the Mississippi system does not authorize the political parties in Mississippi to conduct any other type of nomination process (mass meetings, conventions, or party canvases by mail or internet, or whatever) to nominate their candidates and required participation in the state primary.
The district court held:
In order to correct this constitutional problem, the State of Mississippi can either (1) keep [the challenged statute], require mandatory party registration (with the option for a voter to designate him or herself as unaffiliated) and voter photo identification for all primary elections, and consider the option of authorizing the parties to allow unaffiliated voters to vote in their primaries but not registered members of an opposing party; or (2) the State can fashion some other form of primary system that does not infringe on political parties' right to disassociate opposing-party members from possible party-raiding
Mississippi State Democratic Party v. Barbour , 491 F.Supp.2d 641, 661 (N.D. Miss. 2007)
The Legislature's Prerogatives
The Mississippi Democrats had not sought voter ID, and this is the first time that any court had ordered a state to enact voter ID or party registration. I believe the 5th Circuit will reverse the district court on those 2 items, as they are the legislature's prerogatives.
If the Democrats win the suit, they will invite independents but block Republicans from Democratic primaries. The Republicans, in contrast, will keep their primaries open to ALL voters.
Court Docs
I'll look for the briefs via PACER.