[EL] 7th cicuit decision on limited nomination, not limited voting

Fri Sep 11 09:59:00 PDT 2015

I have changed yesterday's Ballot Access News blog post to refer to Indianapolis as having "limited nominations", not "limited voting".  But I want to point out that the 7th circuit decision itself never uses the term "limited nominations".  The decision itself uses the term "limited voting" and uses it to describe other jurisdictions, whether they have limited nominations or limited voting or both.
Another problem with the 7th circuit's terminology is that the decision refers to Indiana as having a "closed primary" system, even though Indiana does not have registration by party and does not keep track of which primary ballot a voter chooses.  On page 4 the 7th circuit says Indiana is a "closed primary" state because the law says a voter must choose the primary ballot of the party for which the voter voted at the last general election.  Because we have a secret ballot this is completely unenforceable, and other references refer to Indiana as an open primary state.
Journalists and others have about six different definitions of "open primary".  In Pennsylvania an "open primary" is a primary at which the party organization doesn't endorse.  In Illinois an "open primary" is a primary in which the voter's choice of a primary ballot is secret (in Illinois a voter can choose any party's primary ballot and there is no registration by party, but a record is kept of which primary ballot a voter chooses).  In California many supporters of top-two refer to top-two as "the open primary" and Charles T. Munger's organization to defend top-two is called "Californians for an Open Primary."  In Mississippi, which already has an open primary, the press says an open primary is the system used in Louisiana, in which there is no primary, just a general electioh followed in some cases by a runoff.  Finally, the California Constitution says the presidential primary shall be "open", but when that was drafted in the 1970's it meant that the system would be open to every candidate whom the news media was reported as running, whether that individual files a declaration of candidacy in California or not.

The real definition of open primary, one in which each party has its own primary ballot but any voter can choose any party's primary ballot, is defined in several US Supreme Court opinions and in Bruce Cain's book "Voting at the Political Fault Line."
 Richard Winger 415-922-9779 PO Box 470296, San Francisco Ca 94147
      From: Rob Richie <rr at fairvote.org>
 To: "law-election at UCI.edu" <law-election at uci.edu> 
 Sent: Friday, September 11, 2015 6:17 AM
 Subject: [EL] 7th cicuit decision on limited nomination, not limited voting

I wanted to clarify that this seventh circuit ruling involves use of  limited nomination, not limited voting.  Limited voting is what we call a "semi-proportional voting system"  (one with a name that creates some real public relations issues!) in which voters have fewer votes than seats. The more limited the vote, the more voters who have the power to elect a preferred candidate. Limited voting was not an issue in this 7th circuit case, and has been upheld regularly and was the remedy in two Section 2 cases brought by the DOJ in recent years (in  Lake Park, Florida and Euclid, Ohio).
Limited nomination involves  elections for partisan elections where parties are not able to nominate as many candidates as seats to be elected -- a relatively common practice that in fact was established by Congress for four at-large city council seats in Washington, DC (two up each cycle, with parties limited to nominating one).
In Indianapolis, for example, there  are 20 judges being elected, and parties can only nominate 10. In the event that  there are no third party or independent candidates, that means the general election has 20 candidate for 20 seats. Judges in this case  so far seem to be assuming no other viable non  major-party candidates, and are reacting to meaningless general elections after all the action takes  place in the primary. That doesn't happen in all limited nomination elections -- in DC, independents and minor parties regularly (and often successfully) challenge Republicans for the "second seat",  and the Working Families Party has had some success in Connecticut elections with limited nomination in cities like Hartford.
Limited voting and limited nomination often go together in partisan elections in the United States -- indeed, it's the law for at-large city council elections in Connecticut (with 76 jurisdictions overall there using limited voting) and established by law for most county commission elections in Pennsylvania (affecting 47 county elections). Adopted  to settle dozens of voting rights cases, limited voting (usually with one vote, which we call  simply the "single vote system") is also used on its own in jurisdictions in Alabama, Florida, North Carolina, Ohio,and Texas -- -see FairVote's list of jurisdictions with non-winner-take-all systems.
This Indianapolis case is an interesting one. Indianapolis' current law recognizes that in partisan elections for judges, parties often "vote the ticket" and regularly wipe out one side -- so the primary still remains the determinative election, with it often being a fiction that the general election is going  to be a competitive election across party lines. Indeed, FairVote analyses have pointed out, most state legislative elections have general elections that are only contested on paper, with several whole legislative chamber represented today by state representatives whose party affiliation matches up perfectly with the partisan affiliation of the presidential nominee who carried their legislative district.Indeed, today regularly more than four in ten state legislative elections aren't even contested on paper.
If there is a constitutional right to meaningful choices in November, we could be in for some creative legal challenges ahead!
Rob RichieExecutive Director, FairVote
On Fri, Sep 11, 2015 at 8:10 AM, Rick Hasen <rhasen at law.uci.edu> wrote:

   Posted in campaign finance, campaigns      
“Seventh Circuit Strikes Down Limited Voting for Indianapolis Judicial Races”
   Posted on September 10, 2015 10:31 am by Rick Hasen    Ballot Access News: 
 On September 9, the Seventh Circuit agreed with the U.S. District Court that Indiana cannot provide for limited voting in partisan judicial races. The case is Common Cause Indiana v Individual Members of the Indiana Election Commission, 14-3300. Here is the 32-page opinion. Indiana’s limited voting law only applies to Marion County, which is identical to the city of Indianapolis. The law says no party may run candidates for more than half the seats for Superior Court Judge. Some years 16 seats are up; in those years no party may run more than 8 nominees. Other years, 20 seats are up;  in those years no party may run more than 10 nominees. The purpose of the law is to prevent one party from winning all the races. The decision is on shaky grounds, because elsewhere around the nation, limited voting has been upheld. 
      Posted in alternative voting systems, judicial elections

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Rob Richie
Executive Director, FairVote   
6930 Carroll Avenue, Suite 610
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rr at fairvote.org  (301) 270-4616  http://www.fairvote.org

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