January 27, 2011

The Recency of Primaries

It's been a weird year for West Virginia politics.

It all began when Robert C. Byrd, our long-serving senior Senator/fiddler laureate, assumed room temperature last June.  Almost immediately, as seems to always happen in these situations, there were questions about whether then Governor Joe Manchin could appoint Byrd's replacement (who many figured would be Joe himself) or whether a special election was needed.  After a lot of bickering, Joe appointed a placeholder in Byrd's seat and set a special election.

Manchin won that election.  Thus, in November of last year, he resigned as Governor.  Since West Virginia doesn't have a lieutenant governor or similar position, Earl Ray Tomblin, the then State Senate President, stepped in as acting governor.

Again, almost immediately, a brouhaha erupted about how long Tomblin could serve as governor and whether another special election was needed.  Various state groups and political organizations called for a special election, per the state constitution.  Tomblin argued that, although such an election was required, state election statutes allowed it to be put off until 2012, the next regularly scheduled general election. 

The dispute went to the Supreme Court of Appeals, which held (correctly, IMHO) that Tomblin was wrong.  A special election would be required, sooner rather than later, per the Constitution.  However, the statutory provisions regarding how the candidates were chosen, which provide for nominations by convention, were upheld.  So, the court concluded:
This procedure appears to indicate that candidates for governor who are to be
voted on in the new or special election shall be nominated by a convention, as opposed to a primary election, to be called under the rules of the political party executive committees of the State. The procedure established in the second paragraph of W. Va. Code § 3-10-2 regarding the holding of a new or special election to fill the vacancy in the office of governor is within the legislative prerogative and does not violate the State Constitution. Having found the procedure constitutional, it would be improper of this Court to second-guess the wisdom of this procedure, or to otherwise “legislate” a procedure more to our liking. We observe that the Legislature has just begun its general session. The Legislature may amend the procedure for providing for a new or special election if it deems it appropriate to do so . . .
You can guess what's come next, right? Now comes the wrangling about whether we should go with the conventions or change the law and have primaries. Thus, one of my Facebook friends, who has consistently called for voters to be involved since Byrd shuffled off the mortal coil, today Tweeted:
Committeewoman Calls for Primary Election, Electing our representatives is the foundation of our Republic. http://ht.ly/3Ljvj
But I don't think that's quite right.

Lemme clarify.  Praising someone for proposing primaries versus conventions is right.  Regardless of how poorly utilized the polls are or how little enthusiasm the populace has for the process, open elections are better than pols making deals in the proverbial smoke-filled rooms.

But political primaries, indeed even the choosing of legislators by the voters, are simply not a "foundation of our Republic."

The original Constitution, as enacted in 1789, is a famously anti-democratic document.  Of the three branches of the federal government, only one-half of one of them is directly tied to the people being governed, the House of Representatives.  The Senate was originally chosen by state legislatures. The President is elected by members of the Electoral College, which filters popular votes through a federalist prism that sometimes distorts popular will.  And, of course, the courts are appointed for life, specifically to insulate them from shifting political winds.  On top of all that, of course, is that the class of people who could actually vote in 1789 was a sliver of the whole population.

None of that was an accident.  The Founders did not trust popular democracy all that much.  The design of the federal government was supposed to dampen the sometimes unpredictable spirits of the masses.  Whatever popular fervor could grip the House, the Senate stood ready to slow things down and let the fires die out.  The Constitution, in its original form, was an elitist document.

Things have changed significantly since 1789, of course.  For one thing, the pool of potential voters expanded as the right to vote was grated to blacks and freed slaves (15th Amendment), women (19th Amendment), and anyone over 18 years of age (26th Amendment).  Here, in the 21st century, every adult citizen can vote, aside from those subject to some specific prohibition (like felons, in some states).  The pool of voters now is deeper than the Founders would have ever imagined.

The other big change since 1789 has been the development of more ways for those voters to directly impact the government.  Federally, the big change was the provision for the direct election of senators by the voters (17th Amendment).  That change was part of a broader part of Progressive Era reforms that also brought about the initiative/referendum/recall process.  Those have allowed direct voter amending of state law by bypassing state legislatures, oftentimes with bad results.

Another one of the Progressive Era reforms was the establishment of political primaries.  Technically, candidates today are chosen at conventions, but in reality the results are a foregone conclusion based on earlier primary votes.  It was not always so.  In the beginning, it doesn't look like there was much structure to how parties chose their presidential candidates.  The convention setup appeared in 1832.  The first presidential primary, in Oregon, didn't appear until 1910. 

As I said above, open primaries are good things.  Voters should have a say in who the parties choose to be their candidates for election.  But that sentiment is relatively new, not just in the history of of the world generally, but in the United States.  By definition, it can't be a "foundation of our Republic."  But that's OK.  Sometimes you need to add to the foundation to make the structure stronger.

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