The Primary Problem

February 19, 2015

By Staff Writer:

As the turmoil over the election season comes to a close, the battle between Thad Cochran and Chris McDaniel seems to have finally been put to rest. The Mississippi Supreme Court ruled in late October that McDaniel had missed the twenty day deadline to challenge the results of the primary runoff. However, as some conservative supporters were quick to point out, the Court never reached the merits of the case. McDaniel’s claims were dismissed based on court precedent, not black letter law, regarding timely filing. This lead some online news sources to question whether the law was properly applied or whether McDaniel might challenge Cochran’s seating in the Senate. However, despite the McDaniel campaign’s continued assertion that true justice has been denied, it appears that Thad Cochran will serve a seventh term as a U.S. Senator for Mississippi.   

However, now that the election is over, the real work begins. In order to have the best possible democracy, a nation needs reliable, fair, inclusive, legitimate elections. Unfortunately, this election cycle has been plagued with questions of legitimacy, as showcased by the conflict in Mississippi as well as conflicts over voter I.D. laws. While the open primary system in Mississippi presents several problems, not the least of which is the concern over illegal party raiding, other forms of primary present similar problems.

There are three main forms of primary currently used in the United States: closed, in which parties caucus or restrict primary voting to only registered party members; open, in which registered voters can vote in any [one] party primary regardless of affiliation; and top two, in which all candidates are placed on the same ballot and the two candidates with the most votes move on to the general election.

Considering Mississippi’s current struggles with an open primary system, a closed primary system may seem like the most obvious solution. However, while part of the rationale behind a closed primary is to encourage party unity and prevent party raiding, a classic closed primary excludes sincere crossover voters and registered voters who remain independent. Furthermore, having a strictly closed primary means that candidates must play to the often extreme views of a party base to gain  nomination. This causes increasing polarization and creates an ideologically deadlocked government where compromise is rare and effective governance is difficult.

Top two or “jungle” primaries present a different but equally worrisome set of problems. This method allows (or forces, depending on who you ask) candidates to play to the polity as a whole, instead of the more polarized party base, which proponents say will lead to more moderate, effective elected officials. However, the top two primary system automatically lowers choice in the general election (in which the more of the electorate participates) to two candidates instead of one from each party (potentially including Green party) and independents. Additionally, the top two has often led to a general election run-off between two candidates of the same party. Worse yet, in districts where one party is particularly popular, they may split their primary voters between multiple candidates, and it is not difficult to imagine a situation in which five or more candidates from the majority popular party split 60-65% of the votes and the two candidates from the less popular party end up in the general election. Furthermore, the top two primary system, while preventing party raiding, also remains in conflict with first amendment associational rights. Though the right to association is not a very well developed doctrine, it is still a recognized right of parties, and is arguably strongest in the primary stages of candidate selection. While parties can choose their standard bearer in a top two primary, the candidates often choose which party affiliation appears beside their name on the ballot with no say from the official party, and even amidst party objections. This impedes critical party functions such as assisting voters in compartmentalizing issues and mobilizing a coherent voter base.

With all of the inherent problems in the strictly open or closed primary systems, and the difficulties presented by the top two system, it seems as though there may not be a perfect solution to Mississippi’s primary problem. However, in many states there are hybrid versions of the primary system that fall somewhere between the classic open and closed primaries. It may be beneficial for the state to consider implementing a hybrid like the one in Alaska, where the rules regarding who may participate in a party primary are dictated by the party itself. This avoids the constitutional issues with association because the party is the one choosing who may participate. It may also solve problems of exclusion in closed primaries, because allowing wider participation would likely be encouraged by the potential for winning independent or crossover voters by allowing them to be invested at an earlier stage, while still lowering the potential for questions about legitimacy because the party members are ones dictating the rules.

However Mississippi chooses to address its newly highlighted primary problems, it appears to have settled the McDaniel-Cochran contest with some finality. After all of the fuss, the Tea Party officially backed Democrat Travis Childers for in the senate race, with almost no hint of irony. From Washington Post contributor Philip Bump:

“McDaniel, meanwhile, was continuing to press his always-doomed case in the courts as recently as last Friday. The irony, for those who haven’t been tracking this closely, is that a key component of that complaint was the charge that Democrats who backed Cochran in the runoff (likely a key aspect of his win) violated a state law mandating that they be committed to backing the winner of the primary in November. An argument could be made that the South Mississippi Tea Party, by backing McDaniel and then switching to Childers, is equally guilty.”