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Lawsuit may expose Louisiana's cosmetic electoral change

Here we go again with Louisiana trying to set a date for physical enactment of federal elections, and looks as if the state may once again discover another reason why the blanket primary election system needs to be replaced.

Almost a decade ago lawyer G. Scott Love in essence challenged the entire blanket primary system, which could have the effect of electing members of Congress prior to the national election day specified by federal law. The Supreme Court agreed with him. (Note: Louisiana’s system often incorrectly is called an “open” primary. It is not. An open primary is one where separate party primary elections are maintained although voters of any partisan affiliation or none may participate in any one party’s primary. In Louisiana, there are no separate party primaries, hence its correct name “nonpartisan blanket” primary or blanket primary for short.)

Last fall, the Legislature finally addressed what it saw to be a loophole in the law. Act 282 changed technical language in the Revised Statutes to declare candidates “elected” on the federal election date, even if the actual election itself occurred earlier. As a result, this time Love has sued on behalf of his daughter Julia arguing the earlier date deprived her of the right to vote as her 18th birthday in 2006 would occur in the interim between the two dates.

The crux of the matter is defined in the opinion as “a contested selection of candidates for a congressional office that is concluded as a matter of law before the federal election day, with no act in law or in fact to take place on the date chosen by Congress, clearly violates” the statute. The state claims the new law in fact satisfies the requirement that a trigger of sorts go off on the federally-defined day by stating that candidates get elected “at the close of the polls on the day of the general election” regardless that the physical enactment of the election may have occurred earlier.

The plaintiffs may have found an ingenious way to contest this. Using the state’s logic, what’s to prevent other states to from bumping their elections up as far back as they like using the same reasoning, and basically subverting the intent of the federal statute? Unless the judiciary declares that there should be a limited time in which to do this that would seem to be the end result. It could declare a limit to moving forward such as the residency requirement; that is, an election can occur no more than 60 days minus the state’s residency requirement in days prior to the date set by federal statute (60 days because that is the most at which the Supreme Court will allow a state to set its residency requirement).

If the law is declared unconstitutional, however, it should provide yet another sign that the state needs to change the system. Many such compelling reasons exist to make the switch but probably the main thing now holding it back is less-liberal Democrats probably would be seldom elected since even in an open primary system more-liberal Democrats probably would beat them. A closed primary system, where only voters affiliated with a party can vote in its primary, would reduce the electoral chances of these Democrats, a number of which haunt the Legislature, even more. Compounding that is the generally unfavorable electoral environment for incumbents but especially Democrats over the next few years will discourage them from making elections more explicitly partisan.

This new law represents merely a treatment of the symptom, not a cure of the disease. Regardless of the outcome of this case which probably will go on well past this year’s federal elections, the blanket primary needs to go.

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