Polygon, the Dancing Bear

Occasional notes on politics, history, technology, architecture,
and the life of a county clerk

2002:
May / June / July
August / September / October
November / December

2003:
January / February / March
April / May / June / July
August / September / October
November / December

2004:
January / February / March
April / May / June / July
August / September / October
November / December

2005:
January / February / March
April / May / June / July
August / September / October
November / December

2006:
January / February / March
April / May / June / July
August / September / October
November / December

2007:
January / February / March
April / May / June / July
August / September / October
November / December

2008:
January / February / March
April / May

Current entries

Tuesday, November 27, 2007, 10:31 pm

Yet another chapter in the presidential primary saga. Or, two chapters, actually.

First, in an appalling decision, the Michigan Supreme Court reversed lower court rulings and upheld the constitutionality of giving only major parties access to the list of voters in the primary.

The decision was four to three, with the solid bloc of four right-wing Republicans (Young, Markman, Corrigan, and Taylor) outvoting the two Democrats (Kelly and Cavanagh) and one disaffected Republican (Weaver).

Michigan Supreme Court justices are nominated by party conventions, so their party labels are widely known, except on the ballot, where they are listed as "nonpartisan".

Election officials, including the Michigan Association of County Clerks, had urged the Secretary of State not to appeal the original court ruling, given the now very limited time left to prepare for the election. It will now be essentially impossible for overseas absentees, such as troops in Iraq, to participate in the election via absentee ballot.

The Traverse City Record-Eagle did a great editorial about this. An excerpt:

The Michigan Supreme Court's Engler Majority, in its never-ending quest to prove that justice not only isn't blind but in fact views everything through a lens, has again created law out of whole cloth. This time, the beneficiaries were the Republican and Democratic parties; the losers were the rest of us....

The court's assertion of political party privilege clearly flies in the face of not only common sense but decades of precedent. Further, it helps create the impression that there are two kinds of citizens -- those with political clout, and those without. It's not hard to tell which side the Engler Four favors (Chief Justice Clifford Taylor and justices Robert Young, Stephen Markman and Maura Corrigan were all appointed by former Gov. John Engler to the Supreme or state Appeals courts.)

The Supreme Court ruling meant that the January 15 primary sprung back to life without much time for election officials to prepare for it.

But then another chapter opened.

With the Michigan Democratic Party now looking toward the primary rather than caucuses, and with the Michigan Republican Party worried that a meaningless Democratic primary might motivate a lot of crossover votes from Democrats for Ron Paul, there was a push to change the law, to put the complete list of Democratic candidates back on the ballot.

The House met yesterday, and passed a bill that would put Obama, Edwards, Richardson and Biden back on the primary ballot, notwithstanding their earlier filing of withdrawal papers.

But H.B. 4507, as rewritten, does more than just that! It strips out the "secret list" provisions from the presidential primary law. It undoes a recent Court of Appeals decision which prohibited local clerks from sending out unsolicited absentee ballot applications. And it reforms the scheduling of school board elections, which most districts now have annually in May, in favor of odd-November OR even-November OR even-August.

We county clerks have been calling for some of these things for years. So, notwithstanding the last-minute change in the candidate list (a royal pain for programming and printing the ballots), I like this bill now.

Unfortunately, though it passed the House, it didn't get two-thirds for immediate effect. But they should get another shot at that today.

Today, the State Senate may or may not take action on the bill.

As the legal saga has unfolded, I've posted some updates to Daily Kos:

Nov 7: Michigan presidential primary STRUCK DOWN.
Nov 16: Michigan presidential primary loses again.
Nov 21: Michigan Jan 15 pres primary REVIVED by State Supreme Court.
Also on Nov 21, I was quoted in Musical Primaries.

Tomorrow, Wednesday November 28, I'll be appearing, alongside Mark Brewer and other party and campaign people, on a panel sponsored by the Electionn Law Project, from 12:20 to 1:20 pm, in Room 132 of the University of Michigan Law School. Should be fun.

....Posted by Lawrence Kestenbaum —

Tuesday, November 20, 2007, 5:24 pm

Presidential primary update. A panel of the Court of Appeals, last Friday, voted 2-1 to uphold Judge Collette's decision throwing out the presidential primary. Yesterday, the state filed an appeal with the state Supreme Court. Time to print ballots, prepare for the election, etc., is running extremely short.

A couple of interesting documents to share:

From the State Election Director. Chris Thomas (director of the Michigan Bureau of Elections) sent the following email this afternoon to all the county clerks:

Greetings,

I wanted to touch base with you concerning the status of the presidential primary. I know for the outset that many of you were opposed to the law and to any appeal of the Ingham County Circuit Court order.

When a state law is declared unconstitutional by a circuit court there will nearly always be an appeal. The parties are the Secretary of State and the State of Michigan. The decision to appeal is not unilaterally made by the Secretary of State. Our decision to appeal is motivated by a need for a final decision at the earliest date.

I submitted an affidavit with the appeal to the Michigan Supreme Court outlining the duties that must be completed; the time lost due to the injunction; and the need for a decision by noon on Wednesday, November 21, 2008. I informed the court that anything after that date would risk failure, error and disenfranchisement. It is our view that a primary should not be held if we cannot start work until some date after tomorrow.

If the Court rules tomorrow that the presidential primary will move forward, we will immediately e-mail all the necessary documents to you. We have talked with printers and they are ready to move forward as well. They will need information on any county or local issues or special elections scheduled to appear on the January 15 ballot.

We will be using a two ballot process: Republican Party and Democratic Party. If there are local issues or candidates there will be a third ballot. The challenge is to gauge the proper number of ballots to order. We will be providing you with a guide to begin that calculation. Essentially, it involves the 2000 presidential primary turnout and the Democratic Party turnout in the 1992 presidential primary.

I wanted to give you a heads up on this before tomorrow.

From MACC. Second, a press release issued today by the Michigan Association of County Clerks:

MACC: January Primary a "Post-Holiday Nightmare"
No time to get ballots to military overseas, the elderly and the disabled

LANSING — The Michigan Association of County Clerks today urged lawmakers to reject any temptation to resuscitate a law to hold the Michigan Presidential Primary in January, an idea the group called a "post-holiday nightmare" that would disenfranchise absentee voters.

In a letter to legislative leaders, the MACC said it opposed the law establishing the Jan. 15 presidential primary for many reasons. Notably, the group said with fewer than 60 days before the proposed primary it's too late to guarantee that absentee voters — especially military members serving overseas, the elderly and the disabled — would have time to apply for, receive and return ballots.

"Unless Santa and his reindeer are prepared to deliver the ballots, it will be virtually impossible to get absentee ballots to everyone who requests one for the Jan. 15 primary," said Saginaw County Clerk Sue Kaltenbach, who takes the helm as MACC's president in January.

The MACC's obligation to protect the integrity of the electoral process by ensuring every citizen has the opportunity to participate "could be jeopardized by any eleventh-hour attempt by the legislature to reinstitute the primary," Kaltenbach said.

The county clerks, who objected to the closed primary when it was enacted in August, also expressed concern over the projected $10 million-plus price tag. Most clerks responsibly put off incurring any expenses, including the programming and printing of absentee ballots, while the law was being challenged. They did so, in part, because the Legislature limited reimbursements to counties in the event the election was cancelled, as it has been.

"If the political parties want a state-run presidential primary that adheres to their party rules and meets their list-gathering needs, they should pay for it," said Ottawa County Clerk Dan Krueger. "A taxpayer-funded primary that would cost in excess of $10 million should be open to all registered voters, not just those willing to declare their party affiliation in order to participate."

Krueger added, "Holding a closed primary at taxpayers' expense is one holiday gift that ought to be returned unopened."

In addition, the MACC strongly believes that requiring voters to declare party affiliation could lead to the same sort of chaos and voter dissatisfaction that resulted the last time Michigan held a closed primary in 1992.

The state Court of Appeals invalidated the Act late last week after ruling that an aspect of the law is unconstitutional. The case has been appealed to the state Supreme Court. The lower court's ruling addressed only whether voter lists garnered from a taxpayer-funded primary could be provided to the state's two major political parties since that would be using public resources for a private purpose. The court ruled that doing so would violate the Constitution.

####

In theory, we should know the outcome by lunchtime tomorrow.

....Posted by Lawrence Kestenbaum —

Monday, November 12, 2007, 11:40 pm

Presidential primary tale grows longer. So much has happened in the last week that it's difficult to summarize briefly.

First off, my friend Mark Grebner, along with a bunch of co-plaintiffs, sued in circuit court for a ruling against the presidential primary law. In particular, they challenged the parties' exclusive right to get lists of who voted in the Democratic and Republican primaries. Kept secret, those lists are worth an estimated $5 to $10 million.

Judge Collette agreed, and ruled that it was unconstitutional to turn over the lists of primary voters to the two major parties, while keeping them secret from everybody else. To do so was to transfer public property to private interests, which takes a two-thirds vote in the Legislature (the primary bill didn't get two-thirds). Further, he ruled, the secrecy requirement abridged the rights of other political parties, and journalists.

Curiously, the presidential primary law, as a cobbled-together compromise, contained a very unusual NON-severability clause, which provided that if any portion of the law were struck down as invalid, the entire law was invalid. Hence, Judge Collette was forced to strike down the entire presidential primary.

(Here's a Detroit Free Press editorial and a Laura Berman column (Detroit News) praising the judge for the decision.)

So the Legislature, still in session last Thursday before the two-week deer hunting recess, was expected to receive and re-enact a "cleaned up" version of the presidential primary law.

But no! The proposed new version still had the unconstitutional secret-list provisions in it. The concept was to get two-thirds in both houses, in order to overcome the giving-away-public-property objection, while ignoring the other issues. The bill was unveiled late Thursday afternoon and rammed through the Senate. It got two-thirds there. But then, it didn't get two-thirds for "immediate effect".

Normally, bills passed by the Legislature don't take effect until the following April. To give a bill "immediate effect" takes two-thirds vote. A law calling for a January 15, 2008 primary would be meaningless if it didn't take effect until three months after that.

In other words, any bill to revive the presidential primary really needs two-thirds support in both houses.

Meanwhile, the House of Representatives, meeting late into the evening, ended up not taking up the Senate-passed bill. Sensing Republican desperation to get the primary re-established, Democrats asked for the Moon: no-reason absentee voting, repeal of the voter-ID law, and allowing people to have different voter and driver addresses. Republicans refused to bend on any one of these, let alone all three.

So the legislative solution seemed to have failed, as the senators and representatives headed off for the traditional deer hunting season recess — notwithstanding that only nine of them have hunting licenses.

But no! The House and Senate are scheduled to return to session tomorrow, Tuesday, November 13, presumably to try again.

Still, there is considerable opposition to the primary among House Democrats, and the likelihood of getting two-thirds there is slim. It didn't get two-thirds in the House the first time, and that was with the Governor fighting hard for it. My understanding is that the revived primary is no longer one of the Governor's priorities.

Further, some of the legislators who recently voted for tax increases are facing recall efforts in their districts. A presidential primary would be an ideal opportunity to collect recall signatures. This probably dampens their enthusiasm to re-establish the primary.

Why did the "cleaned up" bill still have the voter list provisions in it that were struck down by the judge? Because even though the state is determined to defy national party rules by having an early primary, the state Democratic Party is determined to follow national rules in not having an "open" primary, where voters select a party primary within the voting booth. Meanwhile, the Republicans are opposed to having a primary where the names of voters who selected one party or the other are public record (as they are in most states).

Neither party really wants to have a Michigan-style open primary, the Democrats because that would provide another excuse for refusing to seat our delegates at the national convention, and the Republicans because they fear Democrats crossing over to vote for Ron Paul.

The secret-list-for-state-parties-only is the "middle road" between letting everybody choose a primary privately, and letting everybody's party choice be public. Judge Collette ruled that middle road is illegal, but that's just a detail. And both state parties are plainly salivating over the exclusive mailing list they're expecting to get.

One feature of the proposed bill is that it does all over again the process of selecting the candidates for the presidential primary. The option for a candidate to get off the ballot looks like it's still there, but (in the words of one of the drafters) it's a "hall of mirrors" — there's really no way out. So welcome back to the Michigan primary ballot, John Edwards, Barack Obama, Bill Richardson, and Joe Biden!

Meanwhile, the Bureau of Elections (via email sent last Friday at 5:17 pm) has ordered all counties and localities to cease preparing for the January 15 primary, but not to throw away what's been prepared, since the primary could be revived.

The courts were closed today (Monday the 12th) for Veterans Day, but the Secretary of State will appeal Judge Collette's order on Tuesday the 13th. The Bureau stated that she would file at the Court of Appeals, but more recent word is that she will go directly to the Michigan Supreme Court.

Since the Supreme Court is nominated at state party conventions, they are likely to be very responsive to the interests of those parties. Note that the non-severability clause in the original presidential primary law limits their options to all or nothing: they can't throw out some clauses and save others, unless they can invalidate the non-severability clause itself, which seems unlikely.

Will they be so shameless as to decide that it's perfectly okay to turn over lists of voters exclusively to the major parties?

We're pretty close to the drop-dead date for scheduling a January 15 primary, especially if overseas absentee voters (e.g., soldiers in Afghanistan and Iraq) are going to take part. There's already some talk of giving up on the January 15 date, and scheduling the primary later. But that would require legislative action, which might not be politically possible.

All this last-minute furor must be giving fits to the New Hampshire official who is supposed to schedule that state's primary a week ahead of all others.

UPDATES, Tuesday morning.

(1) The legislative session scheduled for today has been canceled, and the next session won't be for another week. Presumably they decided they don't have the votes to get a new presidential primary law through in time.

(2) The Secretary of State is still saying she's going to the Court of Appeals (Michigan's intermediate appellate court), not the Supreme Court. That means they'll get a draw of any random three-judge panel -- harder for the powers-that-be to predict and control. Unless they can get it into the Supreme Court this week, I don't see much chance for a timely reversal.

....Posted by Lawrence Kestenbaum —

Monday, November 12, 2007, 9:03 pm

Update on a self-proclaimed icon. Those of us old enough to remember the early 1970s probably recall the adulation for the Guru Maharaj Ji, the "14 year old Perfect Master" (he seemed to be stuck at that age for some time). His smooth, fat, baby-faced visage smiled serenely from innumerable posters in college towns in those days, plastered everywhere by the vaguely sinister Divine Light Mission. Apparently, he had millions of followers.

Woody Allen's movie Annie Hall had a scene ridiculing him.

Later, he had some kind of falling out with his mom, and she renounced his divinity. It was the sort of ending you'd expect, and I hadn't given him much thought for the last thirty-plus years.

Tonight I accidentally discovered, through Wikipedia, that he's still around, still preaching, but without claiming to be God. His face is older (he'll be 50 next month) but otherwise unchanged. He now goes by his civilian name: Prem Rawat.

....Posted by Lawrence Kestenbaum —

2002:
May / June / July
August / September / October
November / December

2003:
January / February / March
April / May / June / July
August / September / October
November / December