Partisan hermaphodite suit raises no valid issue
Acting as quite a distraction from his Ashley Madison inquiries, former state Rep. Damon Baldone’s quest to return to the Louisiana Legislature took a quixotic turn as he attempts to become, in the words of one waggish observer, a political hermaphrodite.
Baldone, intending in a couple of weeks to qualify to run in his House district, unsuccessfully sued to register himself as a voter as both a Democrat and Republican. In Louisiana, upon qualification for office the ballot lists the party affiliation of the registrant if it is a recognized party by the state; otherwise, the candidate is indicated as “other” or may choose if not affiliated with any party as “no party.” After an adverse initial decision, he has appealed the ruling.
Elector registration becomes the method for assigning ballot label because Louisiana is one of the few states that does not have party primaries for nomination onto a general election ballot. It is a few other states than these that allow by law what is known as “cross-filing” by a candidate. Typically in these, a candidate may vie for more than one party’s nomination and if then is listed on the general election ballot with more than one label.
Thus, for Baldone to run under more than one label, he would have to be able to register as both, as he claims is his constitutional right. Unfortunately for him, jurisprudence gives political parties and states extremely wide latitude in determining who may participate in party decision-making and in who may represent a party in an election. Essentially, parties are conceived as adjuncts of the state for the purposes of conducting elections in order to, in part, to have orderly elections with minimized voter confusion. Most damaging to his argument is Burdick v. Takushi, where the U.S. Supreme Court ruled that states have a minimal burden of proof to achieve these objectives, so it would not be unreasonable for the state to prohibit a cross-listed ballot on this basis without violating any right to associate politically.
The novelty here is that, in effect, Baldone is asking for a cross-listing in the absence of a primary election through registration. While Louisiana’s system often incorrectly is referred to as an “open” primary, which actually is where party nominations are conducted in a primary election where voters regardless of affiliation may vote in a single party’s primary, and somewhat less correctly as a “nonpartisan blanket” primary as voters participate in elections where all candidates run together, technically it is not a primary at all (in fact, a true blanket primary, where voters regardless of affiliation may participate in more than one party’s primary for different offices, has been ruled unconstitutional) because there is no restriction on the number of candidates from a single party running and no nomination at stake needed to proceed to a general election. In reality, Louisiana has no primary elections, but a general election followed by, if needed, a runoff general election.
Without this, the larger context of parties’ membership control mediated by their use by the state to conduct elections becomes the appropriate lens through which to decide the issue. It seems reasonable that the state should prohibit multiple registrations for purposes of clarity for all of parties in determining the rights and duties of its affiliates, for candidates in conducting elections (especially in voter outreach), and for voters, to get a true understanding of a candidate’s affiliation. At the same time, nothing stops Baldone from associating with a party he feels closest to, or he can start his own if he feels none does a better job than any other, providing him a solution to his alleged dilemma. The judiciary needs to dispense with this frivolous case as quickly and as inexpensively as possible.
Posted by Jeff Sadow at 12:15