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Presently, At-Large Councilmember David A. Catania is introducing a bill that would allow the city’s political parties to allow independents to vote in city primary elections. Currently, city law prohibits independents from voting in primaries; Catania holds that this in unconstitutional based on Supreme Court precedent.
To be sure, Catania’s bill would not mandate that independents could automatically vote in any race they chose; the decision on whether to allow independents the vote would still fall to each political party. The law that Catania cites says only that the government may not explicitly prohibit (or explicitly mandate) parties from allowing the unaligned to vote in their primaries.
At this morning’s council breakfast meeting, Catania’s measure didn’t seem to garner a whole lot of support. Certainly there’s not a lot in it for the city’s most established party, which Ward 7 Councilmember Yvette Alexander pointed out. “I can speak for the Democratic party,” she said. “We’re not going to go for that.” The bill’s drawn three cosponsors thus far: Ward 3’s Mary Cheh, Ward 6’s Tommy Wells, and At-Large member Kwame R. Brown.
When explaining the bill to his colleagues, Catania mentioned his own experiences with the District’s primary last month. “Last month, for the first time, I didn’t vote in an election because I was not eligible,” he said, “and it really bothers me.” If his legislation fails, Catania says he’ll think about filing a lawsuit challenging the law, though he’s not sure whether, as a registered independent, he would have standing to do so. His introductory statement after the jump.
Photo by Darrow Montgomery
Council of the District of Columbia 1350 Pennsylvania Ave., NW, Suite 115, Washington, D.C. 20004
“Open Primary Amendment Act of 2008 “
Talking Points – March 4, 2008 Legislative Meeting
Today I am introducing the “Open Primary Amendment Act of 2008,” which would allow the District’s political parties to open their primaries to Independents, or voters not registered with a political party.
Residents of the District of Columbia greatly value their right to vote, as well as their right to be represented, and with good reason. However, in last month’s Presidential Primary a large group of District residents were not allowed to participate because they are not members of a political party. City records show that there are over 63,000 of these individuals – fully 17 percent of our electorate. And while turnout for the primary was high, it would undoubtedly have been higher had Independents been permitted to vote.
Currently, Independents in 33 states are allowed to vote in their state’s primary elections. In the District, however, our parties would actually be in violation of local law if they chose to open their primaries to these voters. That is because current District law states that, “No person shall vote more than once in any election nor shall any person vote in a primary or party election held by a political party other than that to which he or she has declared himself or herself to be a member.” [§ l-1001.09(g)(l)].
As I have explored this issue, I have come to the conclusion that, in all likelihood, the District’s prohibition against open primaries is unconstitutional because it infringes on the First Amendment right of political parties to associate. This view is supported by the US Supreme Court’s decision in Tashjian v. Republican Party of Connecticut, where it struck down a Connecticut law more than 20 years ago. The Connecticut law was nearly identical to our current law, in that it prohibited unaffiliated voters from voting in party primaries. The Court ruled that such a prohibition “placed an unconstitutional burden on the fundamental freedom of political association guaranteed by the First and Fourteenth Amendments.” Further, because the Connecticut law placed limits “upon the group of registered voters whom the Party may want to invite to participate in the ‘basic function’ of selecting the Party’s candidates,” it was deemed unconstitutional.
Conversely, laws that mandate, or require parties to include independents are just as likely to be declared unconstitutional. In California Democratic Party v. Jones, the Supreme Court overturned a California law that required parties to allow all voters to vote in the primary of their choice. The Court held that blanket primaries were unconstitutional because the First Amendment right to freedom of association also includes the right of parties not to associate. Specifically, the Court held that, “Our cases vigorously affirm the special place the First Amendment reserves for, and the special protection it accords, the process by which a political party ‘selects the standard bearer who best represents the party’s ideologies and preferences.'”
It is still not clear whether the open pnmary mandates that currently exist in 13 states, including Virginia’s, will withstand constitutional scrutiny over the long term. The case law to date suggests that Supreme Court heavily weighs a party’s right to associate As a result, mandated open primary laws are the subject of political and legal challenges around the country. In Virginia, for example, one party nearly resorted to requiring voters to take a “loyalty oath” in an effort to close its primary. Idaho’s Attorney General has indicated that he expects his state’s mandated open primary to be ruled unconstitutional when a lawsuit is filed, which he expects later this year unless the Idaho legislature takss action.
The bill I am introducing today takes a different approach. It attempts to remedy the unconstitutionality of our current election law while respecting the right of our political parties to associate as they see fit. It will not force parties to open their primaries, but will remove the prohibition against doing so.
In closing, I sincerely hope our parties will use the ability afforded by this legislation to open their primaries. Doing so will enfranchise a wide swath of the electorate and increase voter participation. These are worthy goals for any democracy. But, I do not believe that the Council should, or indeed can, require them to take such action. This bill strikes the appropriate balance.
With that, I encourage my colleagues to become co-sponsors.