MAJOR CUCCINELLI VICTORY

The Jaded JD alerts us to the conservative GOP victory in the open primary case "Miller vs. Brown"

The 4th circuit court of appeals has overruled the judge who said the case was not yet ripe- and sent the case back to be decided on the merits.

This is a major victory towards closing Virginia primaries and allowing parties to choose their own nominees.

We'll be following the trial on the merits very closely as it should be coming up soon. 

Congratulations to the attorney in this case, Senator Ken Cuccinelli. 

Download the decision here.

UPDATE:  Ken Cuccinelli will be here to liveblog- Friday night at 9:30 p.m. to discuss the case.  It's our first ever Friday night chat- but somehow I think those interested in the case won't have other engagements.  :)

Comments

[JPTERP]

Good news? Won't a closed system ensure a top-down approach to selecting candidates?

An open system is vulnerable to interparty tampering, but it also gives independents and rank-and-file party members a voice in selecting candidates.

Am I reading this situation correctly? What are the merits of a closed versus open primary system?

A question without an agenda here: Des this mean the party "regulars" have more control over nominations?

[Not Larry Sabato]

I'm a big fan of closed primaries- because open primaries are basically marginilized general elections.

[JPTERP]

I haven't studied the issue in depth--but my sense is that open primaries result in more moderate candidates.

They may not be representative, but we have two recent points of comparison in Virginia (open primary) and Connecticut (party primary). The establishment candidate lost in Connecticut, but may very well end up winning the general.

Also, wasn't James Buchanan, the third worst president in history, a result of a closed placeholder system?

I haven't really studied the issue, but my inclination would be towards the open system. My sense is that, in an open primary, the state party still wields a lot of influence, but there are other forces moderating the party influence. A closed system would empower state parties, but it might marginalize voices in the middle.

It is too early for me to decide whether this is a victory or not. I am still sorting it out.

However the point above about having more moderate comdidates win as a result of open candidates rings true.

[The Jaded JD]

Characterizing this as a "major victory" is a mischaracterization. The case is remanded to the trial court. A "major victory" would have been summary judgment on the merits, which is what I had suspected and been preparing to address.

While it is indeed a victory, in the sense that the Fourth Circuit could have affirmed the trial court and said the Senator's clients' suit was not justiciable when it was brought last year, the ripeness argument at least pretty has much expired to everyone's mind except the AG's Office. Even if the Fourth Circuit had affirmed, all Miller would have done is refiled the case at a later time, when the case was justiciable--and now is more likely than last year, so he'd have had a good shot at it if he'd refiled tomorrow, had the need arisen.

Taking the long view of this, I don't see that there will be any disposition of the case now--after a remand--in time for the 2007 election cycle. The case will be argued in the district court and, regardless of the outcome there, be appealed to the circuit court and, regardless of the outcome there, be appealed to the Supreme Court. It only takes 4 Justices for a grant of certiorari, and it's not hard to count to 4 on either side of this issue, particularly on the more restrictive facts presented by Virginia's system compared to the California system at issue in California Democratic Party v. Jones. The briefing alone for the two appeals will add up to about 6 months--the district court loser has to file notice of appeal, the record has to be certified and filed in the circuit court, the loser has to submit his principal brief, the winner has up to 30 days to file his principal brief, the loser has 30 days to reply, to which the winner has 14 days to reply; in the Supreme Court, the circuit court loser has 60 days to petition for certiorari and the winner has 30 days to respond. And that doesn't take into account the actual time needed to docket the appeals, deliberate, and issue decisions.

In remanding this case to the district court, the circuit court may have effectively killed the idea that the 2007 primary will be closed by the judiciary--but the judiciary is not the legislature.

[Fauquier Dan]

It seems to me that the entire purpose of a primary election is for the actual members of that party to choose their candidate for the general election. Presumably people join a political party because they share a common philosophy and similar views on various issues. They should be allowed to choose their candidate in a primary without interference from people who aren't members of the party. Whether this results in more moderate candidates or more extreme candidates in a particular primary is not the issue.

In Virginia, with our ludicrous system of open primaries, we most often employ methods of nominating candidates that involve an incredibly small number of voters. Conventions and caucuses are used to insure that actual party members make the choice. This leaves many people who share the philosophy of the party out in the cold.

Registration by party and primary elections to choose all candidates will expand participation and, I believe, give us higher quality candidates.

[AWCheney]

"Registration by party and primary elections to choose all candidates will expand participation and, I believe, give us higher quality candidates."

That, or both the Republican and Democratic Party will find themselves to be small minority parties with the vast majority of registrations being of Independents. Now THAT could be embarrassing...and rightfully so.

[Not Robert Roberts]

Question for JPTERP: If open primaries result in more moderate candidates.. how can we explain Bolling over Connaughton and Byrne over Petersen. Bill Bolling is completely right wing and as for Liberal Leslie.... the name says it all.

[The Jaded JD]

Not Robert Roberts,

That one is easy: because the 2005 party primaries competed--they were on the same day and voters could only pick one party primary to vote in--the 2005 primaries were both "virtually" "closed." There was little crossover vote because both teams had their own nominees to fight over.

The irony in this whole situation is that the only time the party nominee in an open primary produces a more extreme nominee is when there is massive crossover interference, like the Howell-Miller race in 1977, when the other party wants your party to have an unelectable nominee.

[The Jaded JD]

By the way, I've corrected some popular misconceptions about the end-result of this lawsuit http://jaded_jd.typepad.com/the_jaded_jd/2006/08/primary_misconc.html (including debunking the "we're closer to registration by party" myth).

[Not Robert Roberts]

You really think there would have been a significant cross-over vote to put Petersen or Pucket over Byrne? Byrne/Baskerville got 58%. Crossover vote wouldn't have changed that.

The same with Bolling. He won 58-41. No way crossover voting makes that closer. I just don't think that that many people would have crossed over. Crossover in 2000 didn't seem to help McCain beat Bush. McEachin over John Edwards? I'm not trying to make any point or anything- just thinking out loud.

Ben, are there any primary elections with stats that we can look at and see how many people voted in both?

[Not Harry F. Byrd, Sr.]

I don't know if giving them a day in Court is a "major" victory, but it's one step in that direction.

While I think closed primaries have some merit, a five-year backwards look back period sure smells poll taxy to me. Harry Byrd used to keep "undesireables" out similarly.

It seems to me that party registration is the better way to go.

Someone could legitimately change their mind about party affiliation and be barred from participating for five years. That's not right.

[The Jaded JD]

Not Harry is on the right track, I think about the defect in the State Party Plan. The problem isn't the poll tax, but "party locking," which was held unconstitutional in Kusper v. Pontikes. But the procedural constitutionality of the State Party Plan is not in issue in this case.

[Vivian J. Paige]

NRR - unless I misunderstood your question, you cannot vote in both primaries in Virginia. I think part of the case law cited by the court in the opinion that The Jaded JD has on his site references that.

[Terry]

I grew up in Pennsylvania so the idea of the "open" primary has always been odd to me. In PA, you register by party and vote in your respective primary. If you choose to register as an independent, you also knowingly choose not to participate in the primary/nominating process.
Having been a "party regular" in both states, I would say that the process of nominating someone is basically the same in both systems. The "closed" primary doesn't give party regulars any more clout. If anything, it may encourage more average voters to show up to the polls and vote. The other advantage in this system is that voters are familiar with the idea of a primary because it is always the same day (e.g. the first, second,third, fourth Tuesday of a given Spring month)
Given the pitiful turnout in primary elections here in VA (maybe that is because we just pick a Tuesday and try to publicize the date for voters), I tend to think that the PA way of doing it is far better and far more indicative of voter preference.
I have always thought it was unfair and ethically questionable for someone who claims allegiance to one political party to vote in the other party's primary just for the sake of skewing the results. This seems to be the real issue-- hopefully VA can come up with a system that does not permit that but rather allows people from a political party (including voters as well as party insiders) to choose a nominee.
I am not sure what this court ruling will mean in the future. It seems that we are still a far cry from having a good system.

[Matt in VA]

damnit... am I the only one interested who has prior commitments

[Not Robert Roberts]

Currently you can vote in both primaries in Virginia as long as they are on different days.

In other words: You can vote in any election you want as long as two party primaries are not held on the same day. So, if the GOP and Dem Presidential Primaries are on different days-- you can legally vote in both.

[James Young]

Ben, are you suggesting that your readers don't have anything better to do on a Friday night? ;-)

[PM]

Closed primaries are rather remniscient of the Soviet system. Well, there are two candidates in the end, but little chance for an outsider to the system to prevail.

[The Jaded JD]

Not Robert,

You're incorrect. Presidential primaries are held on the second Tuesday in February. Va. Code Ann. Sec. 24.2-515. It is true that one could vote in the Democratic presidential primary on the second Tuesday in February, the Republican primary for May-general-election-offices on the second Tuesday in March, and the Democratic primary again for November-general-election-offices on the second Tuesday in June. However, if both parties have presidential primaries, the must be on the same day and no voter may participate in both. Va. Code Ann. Sec. 24.2-530.

[Not Ted Stevens]

Buwahahaha..

It was me all along...

The secret hold...

You'll never catch me...

NEVERRRRRRRRR!!!!

Nobody can hold Ted Stevens Accountable...

NOBODY............

Now I'm going to take this system of tubes to my Ted Cave, (AKA ANWR) and shoot at puppies

TED STEVENS AWAY!!!!!!!!

Emporer Ted Stevens
'I'm definitely not some sort of Big Truck'

[NOVA Scout]

I'm somewhat of an agnostic on the political merits of closed primaries. On balance, I favor them as a matter of legal right. As a matter of political wisdom, however, they are a disaster for any party seeking to build a stronger base for the future. Primaries are excellent test runs of electability and dilute the tendency of narrow interests to run narrow candidates. If Virginia had a vigorous multi-party system with fairly open access to statewide ballots, this would not be so much an issue. A couple of cycles of Buzzword Conservatives or Buzzword Liberals and the Republicans and/or Democrats would be out of business. But the electoral structure is such that a very few people in either party can control nominee selection. That makes it all too easy for the two franchised political parties to fall out of touch with the citizenry.

And, as usual, JD is right. A remand is generally not regarded as a victory. In this case, it's better for the plaintiff than the lower court decision, but anything can happen at trial. Believe me, I've been there.

[Redbull]

Question -

If we go to a closed system and you register as a Republican, but don't pay any dues to join the local party, will you still be allowed to vote in the Republican primaries? The same scenario would apply to Dem's as well.

Question 2 -

If we go to a closed system, will all primaries be convention-style or will the parties have to pay the localities what it costs to hold the election?

I don't see how you can have the taxpayers foot the bill for an election, particularly if you are a registedred indpendent, and then not let them vote in the primary.