Polygon, the Dancing Bear

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and the life of a county clerk

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Current entries

Monday, April 30, 2007, 6:33 pm

Our presidential primary.

It's time I wrote something about the scuffle over whether Michigan will hold a presidential primary.

I spent much of Friday and Saturday in Gaylord at the statewide county clerks' conference, where this was a big topic of discussion. The county clerks as a group are opposed to holding a presidential primary, but they are starting to be resigned to the fact that it's likely to happen.

This is a complicated story, so I'll break it down into just a few points:

(1) No "open" primary. Selection of delegates to national party conventions is governed by national party rules. Democratic national rules require that any presidential preference primary or caucus be limited to people willing to call themselves Democrats, or at least, people who are participating in the Democratic primary.

That's no problem in most states, where people register by party to participate in primaries, or openly choose a Democratic or Republican primary ballot. But it doesn't work in Michigan, which allows voters to choose a party primary in the privacy of the voting booth.

One of the events which precipitated this rule was the 1972 Michigan presidential primary, which was won by George Wallace. It was clear from the geographic distribution of results that a great many Republicans, seeing no contest in their own party primary, had "crossed over" to give Wallace a win that was seen as not the expression of Michigan Democrats.

Similarly, in 2000, many Democrats voted in the Republican presidential primary, boosting John McCain to a win over George W. Bush. Among self-identified Republicans, Bush won, but they were swamped by non-Republicans, and all the votes counted the same.

The 2000 crossover vote was especially large because there were no Democratic candidates on the ballot. Rather than participate in the primary, Michigan Democrats held a caucus, essentially a party-run election. More on that below.

(2) A new primary law is proposed. Last December, the Democratic and Republican state party chairs seemed to have come up with a joint proposal for a presidential primary law. The plan (which didn't work) was to sneak the bill through the legislature in the last days of 2006. The text of the bill was kept secret, but eventually the details leaked out.

This bill has never actually been introduced, but it's still the only proposal on the table. Knowledgeable lobbyists expect that, quite soon, it will suddenly come screaming out of committee and be voted through the House and Senate in a matter of hours.

The proposal contemplates a presidential primary, on a date to be determined jointly by the party chairs, but probably February 5, 2008. It will be choice-of-ballot primary — voters will have to openly request a Democratic or Republican primary ballot. However, the written list would be kept secret from everyone except the state party organizations.

(3) Republicans know they're in a pickle. Republicans are pushing the presidential primary, and are ready to make the compromises needed to make it happen, because they have nowhere else to go. They have never run a mass participation statewide caucus, and are not very interested in devoting the millions of dollars in party resources it would take to do so.

If the law is totally unchanged, a Republican-candidates-only presidential primary will take place February 26 or so. Assuming it's not rendered irrelevant by earlier events, gleeful Democrats will be free to take part. This prospect does not excite Republican leaders.

(4) Democrats DON'T know they're in a pickle. Democrats are in a strong negotiating position, not just because the Republicans are desperate, but because the party leadership mistakenly thinks they're "ready" to hold a caucus on Saturday, February 9th.

Three years ago, the Michigan Democratic caucus was saved from being a train wreck by becoming irrelevant, so that only activists took part. Had Howard Dean not withdrawn a few days earlier, there is no possible way that the party could have handled a serious turnout.

Just for example, there were just 18 caucus sites in all of Washtenaw County — compared with about 164 voting precincts. Some of those 18 sites would have been overwhelmed with as many as 10,000 or 20,000 voters — in the very compressed time frame of just a few hours. In terms of facilities, parking, supplies, volunteers, there's just no way that could work. And Washtenaw was probably one of the better organized counties. Statewide, we could have had at least hundreds of thousands of people giving up, frustrated and angry.

Yes, there was Internet voting available, but didn't work well either. An estimated 72,000 people tried and failed to cast a ballot that way. A better implementation would help, but I hear nothing from the party about lessons learned from last time. (And of course Internet voting is feasible ONLY because there's no secret ballot in the caucus.)

(5) Joining the crowd. February 5th is turning into a nearly national primary. On the one hand, how important could Michigan be if we're voting on the same day as California, New York, etc.? On the other hand, "Super Duper Tuesday" will get wall-to-wall media coverage, and our voters are going to want to take part.

I'm saying this in response to county clerks who predict public outrage over "wasting" $10 million in scarce state dollars on the primary. I'm guessing there will be greater outrage if it turns out that Michigan ISN'T taking part in what may be seen as a national presidential election.

(6) Choice of ballot. Michiganders are used to the "open" primary system, so the choice-of-ballot system is likely to face some hostility. Opponents, including some the county clerks, darkly predict that voters will revolt at having to tell which primary they're voting in, and will yell at or even assault precinct workers.

But it's pretty silly to call choice-of-ballot "un-American" when most of America has been doing it for years.

There are bad memories of the last two-party presidential primary, in 1992, but in that case, advance registration of party preference was required — and those party preferences were painstakingly collected from voters for a couple of years. But then both parties changed the rules in the week or so before the primary, creating a lot of confusion.

(6) The secret lists. The presidential primary proposal (as it currently seems to stand) would immensely complicate election administration by requiring that those choice-of-ballot decisions, once announced in the polling place, would be written down and kept secret from everyone but the parties themselves.

In other words, there would be three poll lists in every precinct. One would be the poll book for the names of all the voters; one would be the list of Democratic primary voters, and one would be the list of Republican primary voters.

The local clerks would be required to transmit the Democratic and Republican lists to the county clerk, and destroy all other copies. The county clerks would then transmit these lists to the secretary of state (retaining no copies), and the secretary of state would send them to the Democratic and Republican state party chairs. The lists would be non-public records exempt from the Freedom of Information Act.

Many problems arise with this.

Ballots are serially numbered, and the ballot number (which appears on the tear-off stub) is recorded in the poll book for each voter. This is necessary to account for used, unused, and spoiled ballots. But presumably the Democratic ballots would be numbered in a different range than the Republican ballots? It would then be obvious who had which ballot from the poll book, which has to be public as part of the transparency of the election process. Any solution to this is going to involve vast trouble for election administration.

Some people will apply for absentee ballots. How will clerks know which ballot to send them? If the absentee ballot application includes a line about which party ballot to send, will they make the application also non-public? Concern for the purity of elections (guarding against absentee ballot fraud) ought to foreclose that. If the clerk sends both ballots, what happens if the voter marks and returns both?

In any case, if the law provides that the information is revealed to the party chairmen but not anyone else, expect some litigation. That might tie up the process in further knots, and make it even less likely that presidential candidates will regard Michigan as a good place to invest time and attention.

(7) Robo-calls. Critics point out that the parties will use their secret lists of names for robo-calling, which of course they will. So perhaps the same bill will be made more appealing and more unstoppable by adding a provision that prohibits political (or any other) robocalls. Arguably that would be unconstitutional on First Amendment grounds, but Indiana's law has been upheld so far.

Stay tuned for more developments!

....Posted by Lawrence Kestenbaum —

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