[EL] LeMieux's defense of government regulation of nominations
Rob Richie
rr at fairvote.org
Wed Mar 7 15:59:40 PST 2012
I'm struck by the rather dismissive treatment of freedom of association
concerns reflected by Scott LeMieux in his piece linked below -- and
implicit in related proposals like Larry Sabato suggesting the rotating
regional primary be put directly in the U.S. Constitution and Rick Hasen
suggesting Congress ban caucuses.
I hope those making such argument keep a couple points in mind:
1. Although LeMieux writes that primaries have always been subject to state
regulation and intertwined with the general election process, the "always"
of course doesn't extend to the well over a century of the country's
history when parties nominated without primaries - and when the ballot
itself wasn't regulated, as there were no government-printed ballots. That
meant there were no fights over ballot access. There was not ability to
ban fusion. Parties were simply associations of individuals organized for a
collective purpose, and they put forward candidates, to represent them and
got the word out (and, when possible printed ballots directly in hands) to
supporters.
When I working on Electoral College reform, I often hear the defenders
intone the Founders, mistakenly attributing to them all sorts of
characteristics of how the Electoral College works (or, more accurately,
doesn't work) today. But there seems to be general silence on this
question of association, even though t's hard to argue that government
regulation of the ballot and the nomination process has anything remotely
connected to what the founders anticipated or practiced.
2. I don't know of any other country where the government regulates party
nominations. It might happen, but any primaries I've heard of are entirely
run and organized by the parties in other countries (as happened in the
past year in Mexico, France and Venezuela). Few parties in any countries
use even private primaries to pick nominees.
This remarkable example of American exceptionalism is grounded in the fact
that no other real democracy assumes that the two-party system is
entrenched and that the government should have any interest in limiting
candidacies by individuals associated with those other than the two
parties.
But we do. Many states have horrible ballot access laws. Some states ban
write-ins. And of course we have near-universal use of plurality,
winner-take-all voting systems that, when combined with regulation of the
ballot, keeps most alternative candidates on the fringes. That can lead
LeMieux to write: "Given that we have an electoral structure that limits
voters to at most two viable choices in most elections, primary and general
elections cannot be neatly separated..... For many House and some Senate
elections, the process of candidate selection is the only practically
meaningful election given the ideological makeup of some states. Thus, the
government has an interest in ensuring some level of fairness in the
candidate selection process."
In other word, because we maintain electoral laws that turn most general
elections into coronations and limit viable choices to two, the government
has every right to take the extraordinary step of telling associations of
individuals just how they must select someone to speak for them in
elections.
Of course if we had truly open general elections, we might not take this
step. Call that argument #36 in the case for modernizing our 18th century
voting methods....
Rob Richie.
On Wed, Mar 7, 2012 at 6:02 PM, Rick Hasen <rhasen at law.uci.edu> wrote:
> Voter ID is Coming to Pennsylvania <http://electionlawblog.org/?p=31195>
> Posted on March 7, 2012 2:27 pm <http://electionlawblog.org/?p=31195> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> State senate just passed the bill. Details to come.
>
> UPDATE: Details here<http://blogs.mcall.com/capitol_ideas/2012/03/senate-passes-voter-id-bill.html>and
> here<http://www.postcrescent.com/usatoday/article/38742027?odyssey=mod%7Cnewswell%7Ctext%7CFRONTPAGE%7Cs>
> .
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D31195&title=Voter%20ID%20is%20Coming%20to%20Pennsylvania&description=>
> Posted in election administration <http://electionlawblog.org/?cat=18>, fraudulent
> fraud squad <http://electionlawblog.org/?cat=8>, The Voting Wars<http://electionlawblog.org/?cat=60>,
> voter id <http://electionlawblog.org/?cat=9> | Comments Off
> “Black lawmakers’ effort to expand early voting is rejected in Senate”<http://electionlawblog.org/?p=31192>
> Posted on March 7, 2012 1:08 pm <http://electionlawblog.org/?p=31192> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> The *Miami Herald *reports<http://miamiherald.typepad.com/nakedpolitics/2012/03/black-lawmakers-effort-to-expand-early-voting-is-rejected-in-senate.html>
> .
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D31192&title=%E2%80%9CBlack%20lawmakers%E2%80%99%20effort%20to%20expand%20early%20voting%20is%20rejected%20in%20Senate%E2%80%9D&description=>
> Posted in election administration <http://electionlawblog.org/?cat=18>, The
> Voting Wars <http://electionlawblog.org/?cat=60> | Comments Off
> DOJ Making Section 5 Objections in Two Texas Counties<http://electionlawblog.org/?p=31190>
> Posted on March 7, 2012 1:07 pm <http://electionlawblog.org/?p=31190> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> Texas Redistricting has the details<http://txredistricting.org/post/18839744901/doj-objects-to-galveston-county-redistricting>
> .
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D31190&title=DOJ%20Making%20Section%205%20Objections%20in%20Two%20Texas%20Counties&description=>
> Posted in redistricting <http://electionlawblog.org/?cat=6>, Voting
> Rights Act <http://electionlawblog.org/?cat=15> | Comments Off
> Paging Dan Lowenstein <http://electionlawblog.org/?p=31186>
> Posted on March 7, 2012 12:50 pm <http://electionlawblog.org/?p=31186> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> Lawmaker Accused of Bribing Opponent to Step Aside<http://politicalwire.com/archives/2012/03/07/lawmaker_accused_of_bribing_opponent_to_step_aside.html>
> .
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D31186&title=Paging%20Dan%20Lowenstein&description=>
> Posted in bribery <http://electionlawblog.org/?cat=54>, campaigns<http://electionlawblog.org/?cat=59>,
> chicanery <http://electionlawblog.org/?cat=12> | Comments Off
> “Wisconsin Attorney General J.B. Van Hollen to appeal judge’s ruling to
> stop state’s voter ID law” <http://electionlawblog.org/?p=31183>
> Posted on March 7, 2012 12:41 pm <http://electionlawblog.org/?p=31183> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> AP reports<http://www.postcrescent.com/article/20120307/APC010401/120307112/Wisconsin-Attorney-General-J-B-Van-Hollen-appeal-voter-ID-ruling-judge?odyssey=tab%7Ctopnews%7Ctext%7CFRONTPAGE>
> .
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D31183&title=%E2%80%9CWisconsin%20Attorney%20General%20J.B.%20Van%20Hollen%20to%20appeal%20judge%E2%80%99s%20ruling%20to%20stop%20state%E2%80%99s%20voter%20ID%20law%E2%80%9D&description=>
> Posted in Uncategorized <http://electionlawblog.org/?cat=1> | Comments
> Off
> Corporations, Unions Want FEC to LOOSEN Campaign Finance Regs. Further<http://electionlawblog.org/?p=31180>
> Posted on March 7, 2012 11:37 am <http://electionlawblog.org/?p=31180> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> Politico Influence<http://www.politico.com/politicoinfluence/0312/politicoinfluence213.html>
> :
>
> *ACTIVISTS URGE FEC ACTION ON CITIZENS UNITED:* Conservative and labor
> groups alike urged the *FEC* to act swiftly to roll back rules that limit
> political spending, our own *Robin Bravender* is reporting live from the
> FEC’s chambers. The FEC conducted a public hearing Thursday on its plans to
> officially eliminate the rules that were made obsolete by the Supreme
> Court’s *Citizens United *decision, although it has already announced it
> wouldn’t enforce them.
>
> Conservative attorney *Jim Bopp* blasted the panel for taking so long to
> overhaul its rules after the high court threw out restrictions on corporate
> and labor unions’ spending on political ads. And he urged the panel to
> think big as it attempts to eliminate its old rules. In the wake of *Citizens
> United*, “now, the presumption is freedom,” he said. “That is,
> corporations and labor unions can do anything they want in terms of
> influencing a federal election, unless it is subject to a specific
> statutory provision.” Labor attorney *Laurence Gold*, representing the *
> AFL-CIO*, cautioned the panel against writing new rules to restrict
> unions’ get-out-the-vote activity beyond what’s required by campaign
> finance law. “We believe your final rules ought not to be imposing
> restrictions that aren’t there,” Gold said.
>
> UPDATE: A fuller Politico report is here<http://www.politico.com/news/stories/0312/73742.html>
> .
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D31180&title=Corporations%2C%20Unions%20Want%20FEC%20to%20LOOSEN%20Campaign%20Finance%20Regs.%20Further&description=>
> Posted in campaign finance <http://electionlawblog.org/?cat=10> | Comments
> Off
> “Can Caucuses Be Defended?” <http://electionlawblog.org/?p=31178>
> Posted on March 7, 2012 11:35 am <http://electionlawblog.org/?p=31178> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> Scott LeMieux weighs in<http://prospect.org/article/can-caucuses-be-defended>on the
> Hasen<http://www.slate.com/articles/news_and_politics/jurisprudence/2012/02/congress_should_kill_the_republican_and_democratic_state_caucuses_and_mandate_primaries_instead_.html>
> /Bernstein<http://www.tnr.com/article/politics/101404/bernstein-caucuses-primaries>debate.
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D31178&title=%E2%80%9CCan%20Caucuses%20Be%20Defended%3F%E2%80%9D&description=>
> Posted in political parties <http://electionlawblog.org/?cat=25>,
> primaries <http://electionlawblog.org/?cat=32> | Comments Off
> “Congratulations Government Employees, You Might Soon Be Able To Run
> For Office” <http://electionlawblog.org/?p=31175>
> Posted on March 7, 2012 10:47 am <http://electionlawblog.org/?p=31175> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> It’s about time<http://tpmmuckraker.talkingpointsmemo.com/2012/03/hatch_act_modernization.php>to modernize the Hatch Act in this way.
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D31175&title=%E2%80%9CCongratulations%20Government%20Employees%2C%20You%20Might%20Soon%20Be%20Able%20To%20Run%20For%20Office%E2%80%9D&description=>
> Posted in Uncategorized <http://electionlawblog.org/?cat=1> | Comments
> Off
> “Wisconsin judge who blocked photo ID law for April 3 vote signed
> petition to recall Wisconsin Gov. Scott Walker”<http://electionlawblog.org/?p=31172>
> Posted on March 7, 2012 10:06 am <http://electionlawblog.org/?p=31172> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> AP reports<http://www.htrnews.com/article/20120307/MAN0101/303080036/Update-Judge-who-blocked-photo-ID-law-vote-signed-Walker-recall-petition?odyssey=nav%7Chead>.
> I find the judge’s signing of the recall petition troubling, even if it is
> not grounds for recusal in this case. The judge certainly has a right to
> vote, but this kind of public political activity can undermine confidence
> in the judiciary’s impartiality.
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D31172&title=%E2%80%9CWisconsin%20judge%20who%20blocked%20photo%20ID%20law%20for%20April%203%20vote%20signed%20petition%20to%20recall%20Wisconsin%20Gov.%20Scott%20Walker%E2%80%9D&description=>
> Posted in judicial elections <http://electionlawblog.org/?cat=19>, recall
> elections <http://electionlawblog.org/?cat=11> | Comments Off
> “Trutanich paid for YouTube views of D.A. campaign videos”<http://electionlawblog.org/?p=31169>
> Posted on March 7, 2012 9:34 am <http://electionlawblog.org/?p=31169> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> *LA Times*:
> <http://www.latimes.com/news/local/la-me-new-trutanich-20120304,0,5353416,full.story>“An
> unlikely Internet sensation has struck it big on YouTube: Los Angeles City
> Atty. Carmen Trutanich. Two polished videos promoting his run for district
> attorney last month show Trutanich driving the gritty streets of Los
> Angeles telling war stories from his days as a prosecutor: being shot at by
> a street gang and sending a killer to death row. Within days, the videos
> amassed 725,000 views on YouTube, with the most popular clip leaping past
> any campaign video from GOP presidential candidates Mitt Romney, Newt
> Gingrich or Rick Santorum. A Trutanich news release trumpeted the videos’
> popularity as showcasing ‘broad support behind Trutanich’s candidacy from a
> vast online and grass-roots audience.’ But the campaign statement left out
> a key detail: It paid for many of those YouTube views. After The Times
> questioned the video’s view count, Trutanich’s campaign acknowledged that
> it had hired an online marketing firm to drum up views by aggressively
> advertising the videos across the Internet. The Los Angeles firm said it
> was paid to generate 150,000 to 250,000 views but that a huge online
> audience then followed naturally.”
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D31169&title=%E2%80%9CTrutanich%20paid%20for%20YouTube%20views%20of%20D.A.%20campaign%20videos%E2%80%9D&description=>
> Posted in chicanery <http://electionlawblog.org/?cat=12>, social media
> and social protests <http://electionlawblog.org/?cat=58> | Comments Off
> “Court’s Map Could Push New York Legislature to Act”<http://electionlawblog.org/?p=31166>
> Posted on March 7, 2012 9:25 am <http://electionlawblog.org/?p=31166> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> *Roll Call*:<http://www.rollcall.com/issues/57_105/Court_Map_Could_Push_New_York_Legislature_to_Act-212921-1.html>“A
> federal judge unexpectedly tightened the redistricting vice on the
> deadlocked New York state Legislature this week, pushing the body to come
> up with a compromise or cede the redraw to an apolitical observer. The
> release of a court-drawn draft map by U.S. Magistrate Judge Roanne Mann
> late Monday surprised the Albany political establishment — she wasn’t
> expected to release a map until next week — and added immense pressure to
> the Democratic-held Assembly and Republican-held state Senate to draw new
> Congressional lines.”
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D31166&title=%E2%80%9CCourt%E2%80%99s%20Map%20Could%20Push%20New%20York%20Legislature%20to%20Act%E2%80%9D&description=>
> Posted in redistricting <http://electionlawblog.org/?cat=6> | Comments
> Off
> Voters Appeal Decision Rejecting Challenge to Senator Lugar’s Indiana
> Residency <http://electionlawblog.org/?p=31162>
> Posted on March 7, 2012 8:23 am <http://electionlawblog.org/?p=31162> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> See here <http://electionlawblog.org/wp-content/uploads/lugar-press.pdf>.
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D31162&title=Voters%20Appeal%20Decision%20Rejecting%20Challenge%20to%20Senator%20Lugar%E2%80%99s%20Indiana%20Residency&description=>
> Posted in campaigns <http://electionlawblog.org/?cat=59>, residency<http://electionlawblog.org/?cat=38>
> | Comments Off
> --
> Rick Hasen
> Chancellor's Professor of Law and Political Science
> UC Irvine School of Law
> 401 E. Peltason Dr., Suite 1000
> Irvine, CA 92697-8000
> 949.824.3072 - office
> 949.824.0495 - fax
> rhasen at law.uci.edu
> http://law.uci.edu/faculty/page1_r_hasen.html
> http://electionlawblog.org
>
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