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California's Primary Blues

November 08, 1998

What a mess we're in with our presidential primary election. Democrats and Republicans have long-standing rules--firmly upheld by the U.S. Supreme Court--that bar the seating of presidential nominating convention delegates chosen by anyone but members of their own party. Neither party will seat a delegation selected through California's new open primary, in which voters can cast ballots for any candidate of any party.

The problem was overlooked when voters approved the open primary in 1996. The initiative did make one exception to cross-party voting: Democrats and Republicans get separate ballots to elect their party governing committees. It should have had a similar provision for the presidential primary too.

Proposition 3 on Tuesday's ballot would have put California in compliance with party rules on the presidential primary. But there was no campaign for it, and voters turned thumbs down, 54% to 46%.

What now? The parties say they will have to select their presidential delegates through a state convention, regional caucuses or an election by mail. Any of the three would be a logistical nightmare. Worse yet, a convention or caucuses would see a return of the back-room politics that California rejected in 1909 when it adopted the primary election system.

The open primary law can be changed only by another vote of the people. A possible though unlikely way to do that in time for the March 7, 2000, primary election would be to call a special statewide election.

Under another approach, California could ask the parties to give the state a special exemption from the delegate-selection rules, but that's not likely to succeed. Any delegation chosen in a primary in which nonparty members could vote would be challenged at the convention and probably not seated.

The way out may be in the courts. The parties challenged the overall constitutionality of the open primary in 1997. They lost in the U.S. District Court, where the judge held that the open primary did impact the parties' constitutional freedom of political association but not enough to justify overturning the voters' wishes to have an open primary. The parties appealed, and a ruling by the U.S. Court of Appeals is expected next spring.

Perhaps the best solution would be if the court could uphold the open primary in general--it's clearly popular with voters--but declare that the presidential primary balloting be done under party rules, technically voting to allocate convention delegates of the respective parties rather than for the candidates themselves. The Supreme Court has said the parties have the constitutional right to choose convention delegates in whatever manner they decide.

California has moved the 2000 primary from June to March to give the state more clout in the presidential selection process. But unless the open primary law is fixed, that might prove meaningless.

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