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  Why can CA and WA hold senate elections early but LA can't? (search mode)
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Author Topic: Why can CA and WA hold senate elections early but LA can't?  (Read 563 times)
YaBB God
Posts: 9,285
Marshall Islands

« on: November 30, 2019, 04:16:41 am »

California and Washington hold a nonpartisan blanket primary with the top two advancing to a runoff on election day even if a candidate gets 50%.

Louisiana holds the first round on election day and a second round after only if no individual candidate gets 50%.

But LA used to hold the first round in October with the second round on election day. However the Supreme court ruled this to be unconstitutional. Why is the California and Washington system allowed to still stand?
Origin of Open Primary

Louisiana was a one-party state, such that the Democratic 2nd Primary (runoff) was decisive, and often had more votes cast than the general election. Louisiana doesn't permit write-ins and cancels elections when there was only one candidate. If there was no Republican candidate, the general election was cancelled. At most there was only one Republican candidate, so the Republican primary was cancelled. If there was no Republican primary, there was no point in registering as a Republican.

In 1971 Edwin Edwards finished first in the 17-candidate Democratic Primary with 23.5% of the vote. But unusually there were two Republicans. 1.174M voted in the Democratic Primary, 10.6K voted in the Republican Primary. Turnout in the Democratic Primary was over 100X that of the Republican Primary. Edwards narrowly won the 2nd Primary over J Bennett Johnston 50.19% to 49.81%. Edwards then won the the general election by 57.2% to 42.8% over David Treen.

If you look at the votes cast, you can estimate that 85% of Johnston voters voted for Treen (perhaps less if some Edwards voters voted for Treen). Edwards was annoyed at running three times, and in effect having a do-over in the general election.

So he devised the Open Primary, where all candidates and all voters voted in the primary (formerly Democratic Primary) and if there was a runoff needed it was held on general election day (formerly 2nd Democratic Primary).

Louisiana holds its general elections on Saturday, and in the odd year, and has never used the federal election date.

The first Open Primary in 1975 worked like Edwards expected, with 6 Democrats running, and he was re-elected with 62% of the vote, and no runoff needed. Edwards was term-limited in 1979 (Louisiana limits a governor to two consecutive terms, but unlimited cumulative terms). In 1979, 7 Democrats ran against one Republican, David Treen, and one independent. Treen barely cleared 20% in the Open Primary, but managed a narrow win in the runoff, becoming the first Republican governor since Reconstruction. Louisiana generally treats the election as a contest between individuals, rather than between party stalwarts, because Louisiana had never had an experience as a two-party state.

Application to Congressional Elections

The Open Primary was extended to Congressional elections in 1978. Previously, there had been primaries and primary runoff, and then the Democrat would be elected in November. From the 1930s through about 1960, the Democrat would almost always be unopposed. So while effectively the representative would be elected prior to TFTATFMIN, technically this was not true.

Under the open primary, if a candidate received a majority in the primary, a runoff is not held, and the winner would be certified as being elected. If there was no runoff, the polling places might not even be open on TFTATFMIN, since it is mostly federal elections in even years.

Foster v Love

Some folks didn't like the open primary. I suspect it was persons associated with Cleo Fields who believed that they could win a Democrat primary, and then squeeze through in the general election based on voters voting "D". They challenged the statute based on the date of the election. This was probably pretext. They were turned down by a district court, but overturned by the 5th Court of Appeals, which was sustained by the SCOTUS in 1997 (Foster v Love).

The evidence was that in the overwhelming share of races, election occurred in October. It was a rarity if there was a November runoff.

At the oral arguments before the SCOTUS, the Louisiana AG argued that the Louisiana system was so unique it could not be considered to be subject to federal law. The lawyer for Love correctly argued that at the time the uniform federal election date was set in 1872, there were no primaries, or government printed ballots, and all candidates ran on the TFTATFMIN. The federal law permits a runoff to be held.

District Court Imposes New Calendar

Since the SCOTUS decision was decided in December 1997, there was still time for the Louisiana legislature to change the system. The House favored shifting the dates so that the open primary was on the TFTATFMIN, with a conditional runoff in December. The Senate favored going back to the old system of partisan congressional primary, a conditional second primary, and then the general election on the TFTATFMIN.

With the deadlock, the district court on remand had to choose. They decided that the solution that complied with federal law, while maintaining the preference of the Louisiana legislature for an Open Primary was to move the primary to the TFTATFMIN, reconciling the Louisiana manner regulation, with the federal time regulation.

The Love plaintiffs appealed, but the Fifth Circuit upheld the district court decision (Love v Foster).

Legislative Attempts to Switch Back to Partisan Primaries

A few years later, the legislature was convinced to try a hybrid system. The argument was made that representatives elected in December would not get the good offices and committee assignment.

Under the hybrid system, if there were two candidates, the Open Primary would be on the TFTATFMIN. If there were three or more, the Open Primary would be in October, with a greater likelihood of a runoff needed.

This was challenged by the same plaintiffs as before, except it was filed on behalf of the minor daughter of Love, who as circumstance would turn 18 between the October primary, and the TFTATFMIN. In Daughter of Love v Blanco the district court blocked the hybrid system. The opinion was never reported, which is unfortunate since there was a 26th Amendment claim, based persons turning 18 between October and November being denied the opportunity to vote for their representative.

Switch Back to Partisan Primaries

The Louisiana legislature was finally convinced to switch back to the old system, which was used in 2008 and 2010. In 2008, there was a hurricane at the time of the primary in September, which delayed the primary to the October date for the primary runoff. If there was no primary runoff, the general election could be held on the TFTATFMIN as originally scheduled. But if a runoff was needed, then the general election would be in December.

The senate and three congressional general elections were held on the TFTATFMIN, while there were three congressional runoffs. In the seventh congressional race, there was no general election since only Republicans had filed, and the primary was decisive.

In December, there were two congressional general elections, including the upset of William Jefferson by Joseph Cao in New Orleans. In the other race, there was no general election, since while there was a Republican primary and runoff, there were no Democratic candidates.

In 2010, there were Democratic primaries in two districts, and Republican in two others, as well as contested primaries for Democratic, Republican, and Libertarian senate primaries. There was only one runoff, so that in most cases there was two month gap before the general election.

Restoration of Open Primary

Before the 2012 election, Louisiana switched back to the Open Primary for congressional election. At the time, few representatives had any real experience with partisan primaries. Louisiana has term limits, so legislators tend to be younger, Anyone younger than 62 would never have voted in a conventional partisan primary for governor. There was also no institutional memory about the debate over congressional elections.

They thought it positively weird that they could be campaigning door-to-door and encounter someone who supported them, but could not vote for them. "Ok, thanks for the support! Maybe you can vote for me in a month."

In the 26 races since restoration of the congressional open primary, the election has been decided on TFTATFMIN 19 times (73%). Five of the seven runoffs have been R v. D, while the other two were R v R.

In 2018, all six congressional races were decided in the Open Primary. Oddly enough, there was a special election for Secretary of State, which did require a runoff. Turnout for the runoff was about 1/3 of the primary.

Washington will be in the next message.
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