Primary disputes a big headache

Almost from the date of its inception, America has struggled to resolve how best to nominate and elect candidates for political office, from the highest office in the land to the lowest. And though there have been some pretty acrimonious disputes before, the confusion over what is going to happen during the presidential caucuses and primaries next year is unparalleled in recent memory:

One of the more remarkable aspects of the 2008 presidential selection process is that no one knows when it's actually going to start.

And no one will know for weeks to come.

This ongoing uncertainty has the potential to influence the outcome in ways impossible to predict, political strategists say, while complicating life for candidates and their campaigns.

When this all shakes out, voting will start earlier than ever, much as the campaign for the presidency has.

The process for selecting the candidates who appear on the ballot running for the nation's most important elected position has become a complete joke.

No longer content to let Iowa and New Hampshire determining the calendar, Florida and Michigan have moved up the dates for their primaries, angering the Democratic National Committee, which had tried to diversify the process by allowing Nevada and South Carolina to join Iowa and New Hampshire in January as the first states to hold caucuses or primaries.

In response, officials in New Hampshire and Iowa are contemplating moving the dates of their nominating events even closer or into the holiday season (yes, that's right, Bill O'Reilly, I said holiday season) throwing a shroud of uncertainty over the race to the White House.

The old "system" of self-anointed chosen states dictating terms has been replaced by a free-for-all that's just as bad. It's pretty pathetic that the (supposed) greatest democracy on Earth cannot figure out a practical and fair way to narrow down the field of presidential candidates for the general election.

Major League Baseball and the National Football League have better and more sensible rules than our republic does - and those playoffs are athletic competitions.

What can be done about this? As one of our contributors noted over a year ago, there's more than one feasible solution out there:

[T]he system we have now for picking our party's nominee is unfair and broken. [University of Virginia ProfessorLarry J.] Sabato has identified a solution called the "Regional Lottery Plan". David Yepsen (the dean of the Iowa political press) has proposed another solution:

The two parties should agree that the first state allowed to have a contest in the nomination process will be the closest one in the last presidential election. The second-closest state will get the second contest, etc.

That way both parties avoid process fights and are starting their campaigning - and their candidates are expending their greatest efforts - in those states likely to be the most competitive in November.

The DNC ought to forge ahead in its attempt to shake up the process for the selection of our party's nominee. In the end, though, a permanent solution will likely require more - a constitutional amendment, an agreement with the Republicans, or possibly even a compact between states.

Sabato's "Regional Lottery Plan" is the most intriguing of the solutions I've heard, although I don't like some of the aspects of it and would fine tune it a bit more. However, Sabato has certainly done a good of diagnosing our current disaster.

The presidential nominating controversy isn't the only primary dispute that's been happening recently, however.

Tomorrow, the United States Supreme Court will hear an appeal from Secretary of State Sam Reed (represented by Attorney General Rob McKenna) who wants to preserve the "Top Two" primary system enacted by 2004's ill-advised Initiative 872.

Reed has the audacity to crow that he is "arguing for voter rights" at the Supreme Court, which is nonsense...the problem with the "Top Two" primary (and its predecessor - the "blanket" primary) is that they trample all over voters' rights. Specifically, the First Amendment rights of voters who belong to a political party, whether that be the Democrats, the Republicans, the Libertarians, the Greens, or any other party.

A party, which is really just a free association of citizens, ought to be able to pick its own nominee without interference from people who do not wish to belong to the party. Unfortunately, Sam Reed just doesn't seem to understand this simple idea, which is a shame, because it's that not difficult to understand.

Reed, who has otherwise been a fairly decent Secretary of State, has repeatedly used his office as a bully pulpit to aid the state Grange in forcefully advocating for a primary system that deprives Washington's political parties of their First Amendment rights. Case in point: Reed has scheduled media availability following tomorrow's oral argument, which will feature himself, Rob McKenna, and...surprise! Terry Hunt of the state and national Grange.

Reed says he "firmly believes" that "the Top Two Primary is constitutional and represents the people’s will". Funny, because two federal courts have disagreed:

There are differences between Washington's pre-Reed blanket primary and the "modified" blanket primary being challenged in this case, and we are mindful that Initiative 872 reflects the political will of a majority of Washington voters.

Nonetheless, although attempting to craft a primary system that does not unconstitutionally burden political parties' right of association under the First and Fourteenth Amendments, Initiative 872 fails to do so. Rather, the Initiative retains a partisan primary, in which each candidate may self-identify with a particular party regardless of that party's willingness to be associated with that candidate.

The State of Washington and Initiative 872's sponsor, the Washington State Grange (the Grange), have not identified any compelling state interests -- apart from those the Supreme Court rejected in Jones -- that would justify the Initiative's severe burden on the political parties' associational rights; nor is Initiative 872's modified blanket primary narrowly tailored.

We cannot sever the unconstitutional provisions from Initiative 872 because "it cannot reasonably be believed that" Washington voters would have passed Initiative 872 without its unconstitutional provisions.

McGowan v. State, 148 Wn.2d 278, 60 P.3d 67, 75 (Wash. 2002). Accordingly, we hold that Washington's modified blanket primary as enacted by Initiative 872 is unconstitutional and affirm the district court's permanent injunction against the implementation of the Initiative.

Emphasis is mine. That excerpt is from the Ninth Circuit's decision, issued August 22nd, 2006, and authored by Judge Raymond C. Fisher. The Ninth Circuit was affirming an earlier decision by U.S. District Court Judge Thomas Zilly.

Not content after losing twice in federal court, Reed and the Grange appealed again - to the U.S. Supreme Court, which surprisingly agreed to take the case last February. The Court's announcement, tersely worded as usual, read:

Petition for writ of certiorari to the United States Court of Appeals for the Ninth Circuit granted. The cases are consolidated and a total of one hour is allotted for oral argument.

That hour of oral argument will be heard tomorrow morning, and in a few months, the Court will announce its decision in Wash. State Republican Party, et al. v. State of Washington, et al. If history is any indication, Reed and the Grange are bound to be disappointed when the Court's opinion is issued - and the rights of those who belong to a political party will be upheld.