A Call for Impartial Elections

-by Michelled Nappi
RepairRestoreSafeguard.org

Superdelegates. Cancelled primaries. Closed pollsites. Caucus counts gone awry. When the electoral process itself becomes an issue, something’s gone badly wrong. Primaries and caucuses serve the state purpose of nominating a field of candidates. Political parties are not disinterested regarding that state purpose. The Supreme Court has held that governing the nominations process is the state’s responsibility, stressing that granting a party power to control a primary is the state’s decision, not the party’s (New York State Board of Elections v Lopez Torres, 552 US 196 [2008]). Ballot lines are public property. While parties can endorse, only states can nominate.

But every state still grants parties control of ballot lines. Each state’s dominant party appoints election officers and decides primary process. Ballot access is by party. National party conventions then throw out all states’ results, using solely their own votes to decide “their” ballot lines. Party even determines access to general-election debates.

And every state still grants parties power to nominate its Electoral College electors; some let parties appoint them outright.

Political parties are private corporate entities, not accountable to voters, members or donors. The Southern District of Florida dismissed Wilding et al. v Democratic National Committee and Schultz, 16-61511-Civ-Zloch (2016). Donors maintained that the DNC had defrauded them by falsely stating in public and in its charter that in campaigning processes, primaries and its convention it required impartiality and evenhandedness regarding candidates. The party's filings suggested that its charter was optional: "We don't have to run an evenhanded primary, even if we say we're going to…[W]e could have voluntarily decided that, Look, we're gonna go into back rooms like they used to and smoke cigars and pick the candidate that way." The District held that the plaintiffs could only seek redress through "the ballot box, the DNC's internal workings, or their right of free speech – not through the judiciary." Since the complaint alleged electoral fraud and a party’s internal workings are only available to those members in a position to take an active role in its governance, the decision effectively limited most of the plaintiffs to complaining in the media. Their appeal failed.

When will we stop accepting partisan government? Adversarial government is no accident. It’s a form of corruption. We can reduce its force in government dramatically by removing party power from states' electoral process.

Nominations cases relying even in part on state law have been failing this season: where both statutory and constitutional questions are raised courts must decide on statute if possible. Over time corruption has also influenced precedent. But there is a constitutional case for state governance of the full electoral process. States have an interest in "protect[ing] the integrity and reliability of the electoral process itself" and ensuring "orderly, fair and honest elections." US Term Limits, Inc, v Thornton, 514 US 779 (1995). In Gray v Sanders, 372 US 368 (1963) the Supreme Court found that the primary is an integral stage of an election. In Smith v Allwright, 321 US 649 (1944) it found that primaries serve a state purpose and are operated under state authority. Amendment XXIV includes federal primaries in its list of elections in which government may not abridge or deny the vote. And in e.g. Alaskan Independent Party v Alaska, 545 F.3d 1173, 1180 (9th Cir. 2008), the Ninth Circuit held that the "State's interest in eliminating the fraud and corruption that frequently accompanied party-run nominating conventions is compelling.”

Any state can take back control of its full electoral process. RepairRestoreSafeguard, Inc., a government-accountability reform organization, has a free model bill any state can customize to remove electoral functions from party control.

The Impartial Elections Act

“Section 1. To bring this State's United States primary and general elections into compliance with Article I, sections 2 and 4, Article II, section 1, Article IV, section 4 and the Seventeenth and Twenty-fourth Amendments to the Constitution of the United States, these will be held impartially by this State, will be open to all voters, will equally accommodate all candidates including independent and write-in candidates, and in no statute, rule or practice will discriminate on the basis of interest or membership in an interest group, coalition, or political party. No candidate will hold more than one ballot line. Candidates will qualify for ballot lines by petition signed by a number of eligible voters in accordance with the laws of this State. An interest group, coalition, or political party may endorse candidates but will not nominate candidates.


Section 2. This State's Electoral College electors for President and Vice President of the United States will be nominated during the United States congressional primary elections and elected during the United States congressional general elections. This State's ballot lines for President of the United States will be determined by nomination at primary elections held during the congressional primary elections. This State's eligible voters will state a preference for a ticket of President and Vice President during the United States congressional general elections.


Section 3. No third party will be used to circumvent this law."

In fourteen states (Arizona Arkansas, California, Colorado, Idaho, Missouri, Montana, Nebraska, North Dakota, Oklahoma, Oregon, South Dakota, Utah, and Washington) this can be done by ballot initiative. Either way, if your legislature refuses, interested voters of any state can file for a writ of mandamus to enjoin their state to take back its primary.

It’s high time states began controlling nominations and elections themselves.