By Staff Writer:
Mississippi garnered unexpected national attention this summer as its system of open primary voting became a contributor to the wider debate of how best to fairly and legitimately select candidates and representatives. If you haven’t been paying attention, Mississippi’s long running Republican Senator, Thad Cochran, came very close to losing his seat to Tea Party Conservative Chris McDaniel in a rather ugly, tight primary race. In an effort to overcome his challenger in a runoff election, Cochran strategically capitalized on Mississippi’s use of open primary voting by asking traditionally Democratic voters to support him in the primary runoff against his far more conservative opponent. In a state where Democrats’ primary voters turned out in less than half the number of participants as the Republican primary, Cochran’s gambit to garner those as-yet uncast primary votes could be considered borderline tactical genius. McDaniel and his supporters are pretty sure, however, that it should be considered less than legal.
Much fuss has been made over the legality of this cross-over voting, but the Mississippi law’s intent standard makes it virtually unenforceable. The law allows anyone to vote in a party primary if they intend to vote for that party’s candidate in the general election. However, according to a federal judge, enforcement is contingent on a voter being properly challenged at the polls, and then openly declaring their intent not to vote for that party’s nominee in the general election. As it turns out, knowing and/or proving a voter’s future voting intent during primary voting is practically impossible. The intent standard is not met by showing evidence of the voter’s past political affiliation or preferences, or even by their later choice of candidate in the general election. The only thing that matters is the voter’s intent at the moment they cast the primary ballot. They are allowed to change their mind between the primary and November’s general election. Truly, the only way to discern a voter’s intent, short of psychic ability, is for the voter to be properly challenged and then declare their intent on the day of the primary.
Now, while McDaniel contemplates various challenges to the results of the runoff election, Mississippi law makers are left with the question of whether their open primary system is truly the best way to select candidates. The Supreme Court has recognized the right of party affiliates to associate with members and exclude non-members, and a majority of states have some form of closed primary, but there are still approximately nineteen states with some form of open primary. Other states have experimented with different forms of open primary, like California’s “top-two” system, which comes with its own set of potential problems.
When it comes to the question of which system is better, one has to balance various interests, including party associational rights and the rights of voters to have an equal say in elections. States and parties have a legitimate interest in preventing party raiding (by which opposing parties dilute genuine party member votes by participating in the other party’s primary to sabotage the candidate selection), but Mississippi’s law regarding intent does little to further that interest. On the other hand, while a closed primary would protect a party’s associational rights with regard to interloper sabotage, such closed primaries also preclude legitimate participation in primaries by unaffiliated or open-minded crossover voters that genuinely support a candidate in a party to which they may not officially belong. Though this problem is not new, and solutions have been proposed, there is, as yet, no ideal standard. Perhaps the problems in Mississippi will spur more innovation.