From Richard Winger’s Ballot Access News:
Sixth Circuit Finally Sets Hearing Date for Tennessee Political Party Rights Case
November 4th, 2011
The Sixth Circuit will hold oral arguments on January 17, 2012, in Kurita v State Primary Board of Tennessee Democratic Party. The hearing will be at 1:30 p.m. in Cincinnati. This is the fascinating case, filed in 2008, over whether a party has a constitutional right to set aside the results of its primary and designate the primary loser as the party’s nominee.
Funny thing about that phrase “whether a party has a constitutional right”: a search of the Tennessee Constitution yields not one mention of the term “political party.” I’m not suggesting that answers the question; just that it’s not answered as easily as one might hope.
You remember the case of former Sen. Rosalind Kurita, right? She was the one Democratic senator who, as the 105th General Assembly got underway in January 2007, voted against her party’s choice (the late former Lt. Gov. John Wilder), and made Ron Ramsey the Speaker of the Senate. Members of her party were incensed by this (even though they had enjoyed similar “turncoat” support for Wilder by two Republicans just two years prior), and they vowed to defeat her in the next primary election.
Well, they tried, but they didn’t. Kurita won that election over Tim Barnes by a very slim margin of nineteen votes. Denied their sweet revenge, some of the Democrats backing Barnes challenged the election. Since it was a primary, the ruling body presiding over the matter was the State Executive Committee of the Tennessee Democratic Party.
But wait. These were as a whole, in theory, the very people who were upset by Kurita’s 2007 vote, and though the party’s central committee and executives don’t officially involve themselves in primary contests (save in exceptional circumstances like the Tennessee Republican Party and perennial congressional candidate James L. Hart), one can only surmise the general attitude.
So it was that the state party decided to defer to local party officials in the district where the primary had been fought; and they, in turn, decided to install Tim Barnes as their candidate. Barnes went on to win the general election and is now Senator Tim Barnes of the 24th District.
Case closed, right? Here’s how one Democrat sees it:
Unfortunately for Kurita, the Tennessee Democratic Executive Committee is the ultimate arbiter of primary election results, and after what I thought were some rather dubious arguments of “fraud,” the election was kicked back to the county parties which voted for Tim Barnes to be the nominee.
Of course, it didn’t end there…Kurita filed a frivolous lawsuit against the TNDP, even though the Tennessee Code gives them clear authority, with little-to-no guidelines on how to interpret primary contests.
I can’t quite agree with Braisted’s characterization of Kurita’s lawsuit as “frivolous.” Where this gets muddy is in the very concept of public elections that are held to decide, not the holder of some office, but a certain political party’s choice for said contest. The Tennessee Democratic Party wanted its cake and ate it too.
Giving the party itself the authority to undo an election that was financed and administered by the people of the State may fly in the face of constitutional intent for elections. This is the matter that is before the Sixth Circuit.
Bottom line, this fact is inescapable: a small group of party activists overruled a public election and installed a nominee who was not the winner. (Yes, current law says that they may do so.) While there may have been some votes cast by citizens who usually consider themselves Republicans, the law says that if they were not challenged and proven at the time, it doesn’t matter. Tennessee does not have voter registration by party, and allows any voter to declare as a participant in a given primary.
Regardless of the outcome of this particular case, a change is needed to clarify where the authority truly lies in our elections. Some feel that instituting party registration and closing primaries to only registered members is the answer. Others would take party nominations out of the public arena altogether, and let the parties put up nominees by convention or other self-funded means. Both of these, as well as other options, have their good points and their drawbacks.
The status quo, however, is not acceptable. Now that ballot access has been made slightly more available to additional parties, major structural components of current state election law are in need of re-engineering. Political parties are naturally entwined in the electoral process; but a political party is not a branch of government. Just don’t tell the Democrats or Republicans that.
Fighting the parties on this is not going to be easy. It will be like entering an arm-wrestling contest and finding that one’s opponent is big and strong, has been doing this a long time, and, most importantly, gets to use both arms.
Note: this post is not intended to make me a de facto amicus curiæ in the Kurita case. Unless someone wants me to be.