Primary Pain

It is no secret: National political parties are losing control of the presidential nominating process. The system finds itself in such chaos that Senators Amy Klobuchar, Joe Lieberman and Lamar Alexander--the latter two former presidential candidates themselves--have stepped in with a plan for massive reform. The bill, however, would presumably face a court challenge, and recent Supreme Court decisions indicate it, and any other legislative effort, would likely be struck down.

Klobuchar's bill, which she first offered on July 31, proposes to carve the country into four regions. Each region which would be assigned a window in which its states would be allowed to hold their nominating contests. Every four years, a new region would hold contests first, giving every state an equal chance at an early say in the process. In order to attract important support from the traditional early states, Iowa and New Hampshire would still be allowed to hold their contests first.

The legislation is just one of many threats to the primary process as it currently exists. The other major challenge is coming from the states themselves. Both political parties are doing everything they can to maintain some semblance of control over the system, threatening to strip states of their convention delegates if they don’t fall in line. The Democratic National Committee took away all of Florida’s delegates after the state moved its primary up to January 29, a week before the allowed February 5 “window.” Michigan, which moved its primary to January 15, will probably face the same fate. The Republican National Committee, which does not grant waivers to early states, will cut the delegate votes of New Hampshire, South Carolina, Wyoming, Michigan, and Florida in half.

But as the growing list of transgressor states shows, structurally, the DNC and RNC do not have much power to prevent states from holding their nominating contests whenever they please. And a legislative fix like the Klobuchar-Lieberman-Alexander bill has its own hurdles.  Few senators have signed on as cosponsors, though it has won the support of the National Association of Secretaries of State. But the biggest obstacle is its probable unconstitutionality.

The Supreme Court has taken up several cases in the past decade in which political parties have sued to maintain their control over primary elections. In California Democratic Party v. Jones, a 2000 case that tested the constitutionality of the Golden State’s so-called “blanket” primary, the Court supported the Party's contention that allowing any voter to cast a ballot in any party's primary violated the party’s First Amendment right to free association.

California began allowing voters access to both parties’ primary ballots in 1996. In Washington State, the tradition goes back much further, to a citizen initiative in 1935. After that type of open primary was ruled unconstitutional when the Supreme Court refused to hear an appeal from the state, another initiative put a slightly different variation on the ballot in 2004. The initiative won overwhelmingly, and both parties’ lawyers went to work, securing a court order blocking its use. The subsequent lawsuit was the first case, Washington State Grange v. Washington Republican Party, heard before the Supreme Court this term. The Court has yet to issue a ruling on the case.

Heather Gerken, an election-law expert at Yale Law School, thinks that the political parties do have a compelling argument, based on their stake in preventing a candidate who doesn’t belong from appropriating their label. “They have a robust interest in being able to brand themselves properly,” she said.

“Essentially, the party has a right to determine who it associates with and who it doesn’t,” argues David McDonald, a lawyer for the Washington State Democratic Party and a member of the DNC’s Rules and Bylaws Committee, which sets the presidential nominating calendar. “The state simply has no legitimate interest” in establishing the process by which a party selects a nominee.

“I don’t think that wanting to determine who and how your nominee is selected is really an extraordinary notion,” says John White, who argued before the court for the Washington State Republican Party. “The ability of a political party to select its message and messengers is really what a political party is all about.”

Several election-law experts think it would take a prearranged agreement with the national parties for a bill like Klobuchar's to be implemented, though state parties could make their own challenges. Even so, Gerken says, “You’d be sure to have a constitutional challenge.”

The two parties’ moves to strip states of some delegates have generated bad press for all concerned. The Democrats’ efforts have gotten more attention, in large part because Florida’s senior senator, Bill Nelson, has accused his party of disenfranchising the four million Democratic voters in his state, and is involved in a lawsuit forcing the DNC to seat the state’s delegates. But the RNC has been hurt as well; just last week New Hampshire Senator Judd Gregg pulled out of a fundraiser with RNC Chairman Mike Duncan after Duncan expressed support for the sanctions.

Legal experts say Nelson's suit is almost certain to go nowhere. A 1981 ruling in Democratic Party of the United States v. Wisconsin held that national parties have the right to bar delegates from any state from a party convention. If national Democrats and Republicans go ahead with their promises to limit delegates from a state that does not abide by the party’s rules, the state would have little, if any, recourse.

However, the state parties still exert decisive control over the Byzantine nominating process themselves, by selecting the delegates for the national convention during the spring, when the nominee will already be clear. No candidate will want to be nominated by fewer than all 50 states, the District of Columbia and the territories. Even rule-breakers like Florida and Michigan are all but guaranteed to be included: “It’s up to the nominee to decide whether to shut them out or not, and there’s no way the nominee is going to do that,” Nathaniel Persily, an election law expert at Columbia Law School said. In other words, the nominating process will once again escape reformation by internal forces.

There is one unlikely path that could bring change: A divided convention. If two or more candidates fight over a state's credentials, “then you’ve got a real crisis,” Persily says. “They know [the crisis could occur]. They’re just betting it’s not going to happen.” (Though some, including TNR's John Judis, argue that there's a legitimate chance for a brokered GOP convention this year.)

So, the effort to reform the primary calendar ends where it started. The Supreme Court’s rulings in Jones and La Follette, as the Wisconsin case is known among election-law experts, and its likely decision in the Grange case, make anything short of a constitutional amendment probably insufficient to fix the presidential nominating process legislatively. And practical political considerations make it unlikely that national parties can successfully control their state counterparts. Barring harsh lessons from a brokered-convention meltdown, change is unlikely to originate with the national parties.

In the case of a contested convention, it would take another four years to see whether the affected party would learn a lesson and reform its process. But with Iowa and New Hampshire willing to move their caucus and primary ever earlier, and other states eager to challenge their unique status, reform is simply not going to happen until such a crisis arises.

REID WILSON an associate editor and columnist for RealClearPolitics.

By Reid Wilson