The 14th Amendment was passed nearly 150 years ago. The Equal Protection Clause later went on to expand the scope of the Bill of Rights and apply it directly to the states. “Equal protection of the laws” has been cited in landmark cases like Brown v. Board of Education (1954). It is one of the most important parts of our Constitution as it currently stands. Today, it could save our democracy and continue to inch us closer to a “more perfect union.”
The U.S. Supreme Court has agreed to hear Public Integrity Alliance, Inc. v. City of Tucson (Public Integrity), responding to their writ of certiorari. This case will provide a fresh and interesting precedent for advancing electoral and voter advocacy projects under the Age of Trump. Public Integrity advances the following issue:
Whether the equal protection clause of the 14th Amendment permits the City of Tucson to exclude certain registered voters from the primary election for a citywide representative based solely on the geographic location of such voters’ residence within the city.
The City of Tucson employs a “hybrid” municipal electoral system. Primary elections are conducted under ward district lines, while general elections are conducted citywide and on an at-large basis. Early indications from the Court are that this system violates the “one person, one vote” maxim of the equal protection clause, disagreeing with the 9th Circuit below. The Court’s decision to hear Public Integrity is based on previous rulings holding that geographic location is not a “permissible basis for distinguishing between qualified voters”, Gray v. Sanders (1963), and Smith v. Allright (1944), in which future Supreme Court Justice Thurgood Marshall argued that Texas’s Democratic primary system allowed whites to structurally dominate the politics of the one-party South at the time. The Smith ruling unmistakably connected the primary process to the general election as one continuous electoral event for purposes of the 14th Amendment.
If you want to have better outcomes outcomes, you have to control the rules. In recent years, the Republican Party has mastered using voting and election laws to control political outcomes. While the Democratic Party was writing articles and speaking of “demographic inevitability” the GOP was actually rigging the system in its favor, through use of Voter I.D. laws, gerrymandering, and recently, chipping away at key provisions of the Voting Rights Act. Democrats should have been fiercely defending this unconstitutional and overtly political usurping of our democracy and defending all constituencies, but they were complacent, far too assured of their historical inevitability.
There is, however, another issue that is nearly as old as the Republic itself percolating behind all of this. The two party duopoly. Nowhere is this more evident than in closed electoral systems, as opposed to open electoral systems. Whereas taxpayers fund primary states, the party pays for caucuses and conventions. Herein lies the difference. It is quite clear, that closed primary elections are unconstitutional. While the Constitution affords great latitude to states and localities in elections, there is no mention of political parties at all. Our nation’s first President, George Washington, warned against factionalism and the growing influence of political parties. For many historical reasons, political parties were not only inevitable in our system, they have often served as the primary organizing tool for American citizens to reach shared goals. Parties have had a special role to play in American history, achieving high heights, but also being attached and at times, the chief driver of tragic consequences. As we wind down the 6th party system and into an unknown and yet to be completely characterized 7th party system, it is important to go back to our roots. On behalf of the “We the People”, the public, and the U.S. Constitution – it’s time to fight back.
Public Integrity will be an interesting test case because it will test the current makeup of the Court’s willingness to hear electoral and voting rights challenges on the basis of the equal protection clause of the 14th Amendment. If and when the Court decides to rule (most likely sometime this summer) that equal protection of the laws is violated, and even if they do not, I would argue closed primaries are much clearer violation of the equal protection clause than ward district lines. Allowing political parties, specifically the Democratic and Republican parties to have such strict control over the electoral system is arguably what has produced an authoritarian, ideological demagogue as President with one of the parties backing him up thus far.
The New York state primary is a textbook example. Not only is the primary closed, but you also have to be registered with the party seven months before the primary election. This disenfranchises new New Yorkers and permanently disenfranchises political independents or unaffiliated voters, the largest self-identified voting group in the country, and the third largest in the state of New York (barely behind the Republican Party, further behind the Democratic Party). Fusion balloting or cross-endorsing despite some encouraging results, has not proven to be an effective check on forcing this false dilemma onto the electorate.
It is unfortunate that a state with the proud legacy of President Theodore Roosevelt, President Franklin D. Roosevelt, Al Smith, Fiorello La Guardia, and a state that served as a test bed for many New Deal policies, has been reduced to finishing in the bottom ten in the United States in voter turnout, bottoming out at 48th during the 2014 midterm elections. This trend toward lower turnout is not unique to New York; rather it is unique to closed primaries themselves. Closed primaries have reduced political competition and serve as outdated models used by once-vaunted political machines that can more appropriately be called, anti-machines now, given that political machines are supposed to turn out the vote. Gone are the days of Tammany Hall and Mayor Daley. We have arrived at a time where our country has voter turnout that lags behind all other developed, industrialized democracies. Closed primaries are part of the problem, and they are unconstitutional. This question should be advanced:
Whether the equal protection clause of the 14th Amendment permits a closed primary electoral system, funded by taxpayers, that discriminates on the basis of party registration and timing of party registration.
Another reason why New York State is the ideal test case for 21st century voting rights precedent is the state appoints its Secretary of State rather than elects it as a Constitutional office. Thirty-five states elect their Secretaries of State. As we saw in the 2000 Presidential election, which turned on a couple hundred votes in the state of Florida, Secretaries of State in all fifty states are very important offices, too important to be left to the partisan will of Governors and legislatures.
The appropriate check on the proper administration of free and fair Constitutional elections is the voters. The devil’s advocate might say that new electoral laws passed through the legislature are the proper avenues for this. Indeed, New York Attorney General Eric Scneiderman’s proposals are a step in the right direction. A step that should have been taken years before the 2016 Presidential Election. It’s no secret that entire precincts in Upper Manhattan and elsewhere officially recorded that then-candidate Barack Obama received 0 votes during the 2008 Presidential Primary in New York. The best way to check this is to open up, modernize, and allow the voters to hold those administering and implementing elections accountable. Therefore, this Constitutional issue should also be advanced:
Whether the equal protection clause of the 14th Amendment permits a state to appoint its Secretary of State, who is tasked with administrating free and fair elections, rather than elect this position and allow citizens to check and balance.
Getting rid of closed primaries and unelected Secretaries of State would likely destroy the last few political machines that still exist, and rightfully so. These machines are antiquated, out-of-touch with the concerns of the people. This combined with gerrymandering, voter I.D., and other draconian measures, have contributed to an erosion of voting and citizen engagement that is so severe that for it to endure any longer, is seriously unhealthy for any democracy, let alone the oldest democracy on Earth. But this democracy is now in more danger than at any time since the Civil War.
In an ideal world, Election Day would be a national holiday for federal elections and state elections if they see fit to follow. If we are going to keep celebrating Columbus Day, I’m sure we can decide to set aside one Tuesday every two years to celebrate and renew our democracy by voting in a more free and open manner administrated by people that are elected by we the people.