Party Rules Don't Trump the Constitution

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DEMOCRATS

Primary elections aren't private affairs

By ROBERT F. SANCHEZ

BSanchez@JamesMadison.org

Question: What's the essential difference between the Democratic National Committee and the Boy Scouts of America or the Augusta National Golf Club?

Answer: Not much right now.

The Scouts, exercising their freedom of association as a private group, won a court ruling letting them bar atheists and avowed gays from joining or serving as leaders.

The Georgia golf shrine shamefully excluded minorities for decades -- and still bars women from membership. Given Tiger Woods' recent success there, it's easy to forget that until recently no black golfer could compete for the green jacket presented to the winner of the club's Masters tournament.

Meanwhile, the Democratic National Committee is trumping these groups in the discrimination department by barring millions of Floridians from participating in a crucial step in the process of electing the nation's next president.

Why? Because Florida (and Michigan) violated party rules. Yet those rules merely enshrine the quaint tradition of allowing New Hampshire and the Ethanol Empire of Iowa to have an outsized role in the determining the nominee in both political parties.

It's not the first time a political party has attempted to enshrine a quaint tradition in its rules. On May 24, 1932, when the Great Depression had made Jim Crow even meaner, a state convention of the Texas Democratic Party adopted the following rule:

``Be it resolved that all white citizens of the State of Texas who are qualified to vote under the Constitution and laws of the State shall be eligible to membership in the Democratic Party and, as such, entitled to participate in its deliberations.''

The party rule replaced a 1925 state statute that a federal judge had thrown out as a violation of the 14th Amendment. That statute read, ``In no event shall a Negro be eligible to participate in a Democratic Party primary election in the State of Texas.''

At the time, the exclusion of African Americans from participating in the nominating process was especially egregious because the Democrats' primaries in the one-party Deep South were invariably referred to as ``tantamount to election.''

This flagrantly discriminatory rule, however, was too much even for the U.S. Supreme Court, which previously had tended to keep its hands off the internal affairs of political parties.

As University of Texas Professor Malcolm MacDonald later wrote in analyzing the court's eventual ruling on this issue: 'As long as the Supreme Court was content to view the primary election as a private `party' matter, the exclusion of Negroes by party action could not be challenged under the federal Constitution.

``Commencing with U.S. v. Classic, however, the Court began to move from this position. . . . In the present case [smith v. Allwright] the Court held that primary elections can no longer be viewed as private affairs but have become so intermingled with state activities as to bring them under the protection of the Fifteenth Amendment.''

If anything, those elections have become even more ''intermingled'' with the election machinery overseen by the states and -- since the Voting Rights Act and subsequent congressional actions -- by the federal government.

This raises a curious question: Where are the federal judges when you need them? Thus far they've rebuffed several lawsuits challenging the Democratic National Committee's rule penalizing Florida and Michigan by denying them all their delegates.

The courts' refusal to intervene on behalf of Florida's disenfranchised voters seems doubly odd in an era when activist judges have not been shy about intervening in virtually every other nook and cranny of American life.

Some party functionaries argue that the Florida vote should not count because the Democratic candidates refrained from campaigning in the state -- although they did make frequent forays here to raise money.

Even if the candidates had spent many weeks in Florida, however, the number of voters who would have met them in person would have been minuscule compared to the number who could keep up with every twist and turn as a result of the nonstop coverage of their frequent debates and their incessant tours of New Hampshire and Iowa.

Therefore, to argue that Florida voters couldn't have been sufficiently informed to have a say is patently absurd. The only news story commanding more attention on the cable news outlets was the ongoing saga of Britney Spears.

Bottom line: Florida ought to resist going to the expense of a do-over primary. Instead, the state ought to demand that the federal courts uphold the principle the U.S. Supreme Court confirmed when it threw out the whites-only primary in Texas.

That principle: Mere party rules cannot trump the U.S. Constitution's guarantee of citizens' right to vote.

Robert F. Sanchez is policy director of The James Madison Institute, a nonpartisan center in Tallahassee.

http://www.miamiherald.com/851/story/454659.html