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Blame the Supreme Court

A Commentary by Susan Estrich

Wednesday, March 05, 2008

Blame the Supremes. That's right. The nine of them are responsible for this mess.

If you're shaking your head about how it is that in Texas, Democrats vote not once but twice, and lifelong Republicans who want to jimmy with the process can vote, too; or why it is that in California, independents (or, as we call them, "decline to states") could vote in the Democratic primary but not in the Republican primary -- if they knew to fill in both the bubble for their candidate of choice and a separate one saying they were Democrats for the day; or how it came to be that even though Michigan and Florida held primaries on the date ordained by state law, the results don't count (at least as of now) for the Democrats, the short answer is simple: Blame the United States Supreme Court.

I know what you're thinking: The Court didn't make this crazy patchwork of rules that no one but those we in party circles used to call "rules junkies" could ever understand. And that's true. The two national parties and the 50-something state parties are responsible for this bout of creative law making. But it was the Supreme Court, back in 1980, that gave the national parties, nowhere mentioned in the Constitution, supreme power to define the processes by which their nominees are selected, thus empowering a group comprised of people you've never heard of or voted for to make rules that determine who (not to mention how) you vote for president.

The issue in 1980 was the Wisconsin open primary. Wisconsin has, and had then, a long tradition of allowing anyone, regardless of party, to cast their vote in whichever primary they wanted. You didn't even have to become a Democrat for the day to do it. But after the 1972 contests -- in which there were all kinds of reports of Wallace people voting for McGovern, and various and sundry Republican troublemakers trying to affect the choice of the man who would run against their nominee, President Richard Nixon -- the Democrats adopted a rule limiting participation in the primaries and caucuses leading up to the nominating convention to "bona fide Democrats."

Wisconsin sought an exemption from the rule prohibiting so-called "open primaries," but the national party said no. Wisconsin held an open primary anyway. The national party made noise about not seating the Wisconsin delegation. It took until the very late spring of 1980 for the case to reach the point of a decision by the United States Supreme Court, which held in the Democratic Party's favor.

The Court reasoned that even though the two parties (or any others for that matter) are nowhere mentioned in the Constitution, they enjoy First Amendment rights of freedom of association, which they were exercising in coming up with their rules governing delegate selection. The party's interest, the Court concluded, could not be infringed by any individual state, even if it was trying to effectuate a legitimate and reasonable goal of opening up participation in the process to as many of its residents as possible.

Since then, it has been established law that the parties decide how delegates get picked and nominations get decided, even if it is the states that technically do things like set the dates for primaries and caucuses. Where there's a conflict, the party wins. That's why no one from Florida or Michigan is buying tickets to the Denver convention. Yet.

The problem, of course, is that -- as is also true with respect to the Court's decisions on campaign finance reform -- the system erected by the Supreme Court makes more sense as a matter of constitutional theory than political reality. The parties aren't small-d democratic: They are collections of insiders, hacks and partisans, quadrennially dominated according to loyalty to the vying presidential candidates. Whether Michigan or Florida should have delegates, and how they should be selected, isn't an abstract question of political science, but a question of whether you're for Obama or Hillary. The primary-caucus system in Texas gives more power to insiders, not a greater voice to the people.

Why the Democratic and Republican Parties should have this kind of power is not a matter of whether it's right, but of the finality of the decisions of the Supreme Court -- even when they're wrong. In 1980, the Democrats decided to seat Wisconsin anyway. Ever since, they've gotten an exemption. Oh, well.

COPYRIGHT 2008 CREATORS SYNDICATE INC.

See Other Political Commentaries

See Other Commentaries by Susan Estrich

Views expressed in this column are those of the author, not those of Rasmussen Reports.

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