Does the fed. govt have the authority to reform the presidential primary system?
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  Does the fed. govt have the authority to reform the presidential primary system?
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Author Topic: Does the fed. govt have the authority to reform the presidential primary system?  (Read 1091 times)
Mr. Morden
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« on: October 21, 2011, 09:37:54 PM »

It's clear that the presidential primary system is "broken" in the sense that the national parties have lost control of the process.  They can't get the states to follow national party rules regarding when to set their primary dates.

Could the system be reformed by the federal government, or does it lack the constitutional authority to do it?  If the federal government established a national primary day, or a system of rotating primary dates, can it force the states to comply, and would that pass constitutional muster?
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Bacon King
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« Reply #1 on: October 22, 2011, 04:29:53 AM »

The Feds can't be force the states to comply directly, no. They can, however, provide nice incentives (and/or maybe some sort of penalty too) in order to coerce states into keeping a certain schedule.
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True Federalist (진정한 연방 주의자)
Ernest
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« Reply #2 on: October 22, 2011, 11:03:49 PM »

Let's see what the relevant sections of the Constitution have to say as to how much say the Federal government has over its own elections.

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In the case of Congress itself, the Federal government has wide latitude.  It could require all States to hold primary elections for Congressional elections on a particular day or days, and it could require the use of some method other than first past the post.  Note in particular that the use of the Tuesday after the first Monday in November as Election Day is not mandated in the Constitution.  If Congress wished to, they could move election day to the middle of December.

The last phrase pertains to when there were legislative elections for the Senators, and prevented the Congress from telling State legislatures where to meet.

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Incidentally, while back in the days of legislative election of the Senate, the legislature could choose to hold a special session for the election outside the State, in the case of the Electors, they can't turn it into a paid holiday in Aruba.  This provision avoids the cost and inconvenience of the Electors traveling to the national capital to cast a single vote in person and then going home.

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This could be construed as to give Congress authority over primary elections, if such are used, but it would be a very shaky authority.  The Constitution does not really cover popular elections to the office of Elector in any detail, and it certainly does not anticipate as convoluted a process as is currently used.  In short, while Congress could specify specific Times if a State selected a particular method of choosing its electors, it has no authority to require the States to pick any particular method.  And then there is the fact that I see no way Congress could require the political parties to adhere to a schedule.

And then there is the problematic singular "Time". Even if the other difficulties are overcome, I can't see this as being anything other than giving Congress authority to select the date on which Electors are definitively elected, and not any of the preliminaries.

Note that the lengthy period between Election Day and Inauguration is not required by the Constitution.  Moving Election Day to mid-December and having the Electors meet on the same day as Congress opens would be perfectly valid and could be easily done if desired.

So we are left with indirect methods of persuasion.  Beyond the bribery Bacon King mentioned, there is one other stick that could be used.  Congress could use its Article I Section 4 Clause 1 power to require that if States hold a Presidential primary on a particular date, they would have to hold their Congressional primaries on the same date.  Most, if not all, of the early voting states have separate dates for their Presidential primaries and all other primaries.  Forcing the dates to be congruent would likely see a move to party-funded primaries and caucuses to avoid the congruence.
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Jacobtm
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« Reply #3 on: October 25, 2011, 12:21:25 PM »
« Edited: October 25, 2011, 12:23:45 PM by Jacobtm »

Why should the federal government take responsibility for the parties' business?

If the parties are dissatisfied with the way the nominating process occurs, they can change it.

The parties themselves designed the convention system, and the fact that it's still in place is by design.
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True Federalist (진정한 연방 주의자)
Ernest
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« Reply #4 on: October 25, 2011, 12:46:40 PM »

Why should the federal government take responsibility for the parties' business?

Because the current system is a mess and this looks like the only probably way to end it?

If the parties are dissatisfied with the way the nominating process occurs, they can change it.

And pass on having State governments fund the operation of their primaries?

The parties themselves designed the convention system, and the fact that it's still in place is by design.

Design is hardly the term I'd use for it.  The convention system is a 19th century kludge to the question the Anti-Masonic Party faced of how do you nominate a Presidential candidate when you don't have a Congressional caucus to select one for you, and it was considered unseemly for a person to openly express a desire to be President.

That said, the conventions themselves are not the problem, it's how primaries have been shoehorned into the process of choosing delegates.
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MyRescueKittehRocks
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« Reply #5 on: October 27, 2011, 10:33:17 PM »

The Feds can't be force the states to comply directly, no. They can, however, provide nice incentives (and/or maybe some sort of penalty too) in order to coerce states into keeping a certain schedule.

They don't even have the right indirectly.
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True Federalist (진정한 연방 주의자)
Ernest
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« Reply #6 on: October 27, 2011, 11:19:36 PM »

The Feds can't be force the states to comply directly, no. They can, however, provide nice incentives (and/or maybe some sort of penalty too) in order to coerce states into keeping a certain schedule.

They don't even have the right indirectly.

Sadly they do thanks to a lack of imagination on the part of the founders.  Under the Articles of Confederation, the Federal government had to beg the States for money so much that they never considered the possibility that the tables might be turned.
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