The Michigan Primary Problem is Deeper than Hillary Clinton Admits.

By not covering crucial details of the Michigan/Florida delegate question, many media outlets have been doing Hillary Clinton a favor.

Here’s an article from the New York Times, for example — Patrick Healy’s “From Clinton, New Pressure For a Revote” in the 20 March 2008 issue:

With plans for new primaries in Florida and Michigan in limbo, Senator Hillary Rodham Clinton challenged Senator Barack Obama on Wednesday to accept at least a new contest in Michigan, arguing that he should match his “words with action” because a civil rights principle was at stake.

“It is a bedrock American principle that we are all equal in the voting booth,” said Mrs. Clinton, of New York. “It has been a long struggle to get to the point where barriers have been knocked down and doors opened.”

Before Mrs. Clinton spoke, the Obama campaign issued a memorandum from one of its campaign lawyers, Robert F. Bauer, who raised several questions about a Michigan do-over. “No one disputes that the election will have to be hurriedly prepared,” he wrote. “And it is further accepted that it is, in material respects, unprecedented in conception and proposed structure.”

Mrs. Clinton wants the Michigan do-over as a matter of political survival to close the delegate gap with Mr. Obama; she also hopes to finish the primary season with a lead in the popular vote. The Obama campaign has resisted and argued that Mrs. Clinton is trying to change Democratic Party rules to save her candidacy.

Unfortunately, the New York Times left out the most persuasive arguments from Bauer’s letter. If you just saw the above quotes, you might think the the problems are merely easily-solved implementation details: okay, the revote would be “hurriedly prepared” and “unprecedented in conception and proposed structure”, but surely those are not showstoppers.

Well, I don’t know why Bauer chose to lead off with his weakest arguments, but later in the memo he raises a very serious problem, one we have yet to hear the Hillary Clinton campaign address at all as far as I know. The following excerpt from Bauer’s memo is a bit long and is written in semi-legalese, but it is worth reading all the way through, especially if you’ve been tempted by Hillary Clinton’s rhetoric about voters’ rights:

Although Michigan has always run open elections, which allow voters to vote in whatever primary they prefer, voters who participated in the Republican primary in January could not vote in the June election under the proposed law. This class of voters includes Democrats and Independents who chose not to vote in the invalid Democratic primary at the time because the majority of active candidates did not appear on the ballot and the results would not be accepted under party rules.

This provision raises a significant constitutional question and, along with it, the prospect for litigation that would undermine the perceived legitimacy of the election and bring preparations to a standstill under circumstances in which such delay is effectively fatal. The claim here could also be presented to the party, under party rules, with a similar effect of putting the election and its results in serious question.

The burden on voters here is one of complete disqualification–they cannot participate in the Democratic primary in June if they voted in the January Republican primary. Their claim of a violation of their rights would rest on the fact that that the state “changed the rules in the middle of the game.” These voters’ choice was entirely reasonable in the circumstances: there was no valid Democratic primary available to them at the time, and they could not know that, when their choice was made, that they were disqualifying themselves from participating in a re-run Democratic primary this year that they could know would be held.

Moreover, the state will have difficulty justifying this disenfranchisement by reference to any legitimate state interest. Michigan cannot argue that it wants to limit the June primary to those who are genuinely Democrats, because it has always run fully open primaries. Voters, in other words, have a state-conferred right to vote in the Democratic party no matter what their affiliation. The primaries in January were fully open; and the decision to close them in June will not easily stand constitutional scrutiny. In any challenge, Michigan will be criticized for proposing a re-run without, in effect, restoring to voters the original choice they had–whether to participate in a meaningful Democratic primary.

In other words, the proposal offers a re-run for the State but not for all the voters. The state will have to assert an interest sufficient to justify this infringement on the voting rights of its citizens. Its challenge will be to show how, when the state is seeking to remedy a problem of its own making–failure in the first instance to observe party rules on timing–it can somehow discriminate against groups of its own citizens. The State is also vulnerable to challenge under the party rules. Since any Republican or independent who did not vote in January in the Republican primary is fully free to participate in the June primary, the effect of the proposal is to enfranchise a class of Republicans while disenfranchising a class of Democrats–the ones who chose to vote in the Republican primary when they correctly understood that the Democratic contest was meaningless. A challenge along these lines would consume time, when time is not available, and it is not clear that the party would or could approve this exclusionary feature even if the participating candidates were to agree to it. The DNC would subject itself to legal action if it proceeds with approval of the plan with these terms included. These voting rights issues constitute a serious vulnerability in the proposed legislation and a threat to its successful enactment and implementation.

Bauer very concretely spells out the damage that can happen when you change the rules in the middle of a voting procedure. The Clinton campaign cannot just wave away his concerns: he’s shown how a revote will actually disenfranchise voters. Suppose I were a Michigan voter and I had skipped the Democratic primary (knowing that it wouldn’t be counted, which all the candidates including Clinton agreed was the case at the time), and gone to vote in the Republican primary instead. Now they decide to have a Democratic party revote after all, but I’ll be disqualified because of my earlier decision, even though I made it assuming good faith on the part of the candidates and the national Party.

I’d be pretty mad, wouldn’t you? And out of the thousands of potential Democratic primary voters in Michigan, some will be mad enough to sue, thus tainting the revote with litigation and (correct) claims of unfairness.

Hillary Clinton is not being quite honest about her positions (first the primaries shouldn’t count, now they should) nor about the problems inherent in any revote. Bravo to the Obama campaign for standing firm.

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