The Democratic Party Primary Stew

Let's sort out the mess. To begin, we need to consider some basics. The Democratic National Committee(DNC) is the governing body which establishes the national convention and sets the rules for it. Further, the DNC determines the NUMBER of delegates allocated to each state. Party rules can be changed through meetings of the DNC and the refusal to seat state delegates can be appealed to the Credentials Committee at the convention. The plot thickens a bit because state legislatures determine the TIMING of their primaries/caucuses, and the legislatures of Michigan and Florida chose either to ignore or challenge the DNC's stipulation that state events could not be held prior to a certain time. That stipulation was designed to protect the traditional first-in-the-nation events held by Iowa and New Hampshire. The penalty for a breach of the prohibition, said the DNC, would be a refusal to seat any delegates so chosen. Senators Clinton and Obama, along with other contenders, understood the DNC's position. Nevertheless, half-baked primaries were held.

Now, both the states and the DNC refuse to fund "do-overs" which would cost somewhere in the neighborhood of $10 to $20 million per state. The DNC's financials are weak--in fact, weaker than its counterpart, the RNC, in large part because potential donors have been supporting the primary campaigns. Chairman Howard Dean is understandably reluctant to fund another primary go-around because he is mindful of the need to fill the general election campaign war chest. The reluctance of the two state governors, however, is harder to fathom because do-overs would likely generate as much or more revenue than the initial outlays, to say nothing of the indirect benefits which would accrue from the national attention.

The central problem is not whether the Democratic Party or either candidate would benefit from the seating of these state delegations, but rather the issue of popular representation. As things stand, the voters in two very large states are without a voice in the selection process. That fact raises both moral and legal issues.

It is beyond dispute that Michigan and Florida voters deserve to be heard. They did not disenfranchise themselves, and penalizing their state legislators for their misdeeds will not rectify the matter.

The legal questions are more complicated. One issue is whether state laws setting the time of primaries trump party rules designed to limit available calendar dates and punish offenders. Adding to the confusion is the fact that New Hampshire state law mandates a first-in-the nation primary, while the DNC has a long-standing rule prohibiting the selection of any delegates prior to the calendar year of the general election. Thus, the number of possible primary dates is finite.
A second, and more significant legal issue concerns due process and equal protection. In 1935, the U.S. Supreme Court ruled that as private associations, political parties were legally free to discriminate on the basis of race by limiting participation in state primaries. But in Smith v. Allwright, in 1944, the high Court reversed itself, adopting a "state action" rationale. The 1944 court reasoned that although primaries technically served intra-party goals of choosing their own candidates, that selection process was nevertheless an integral part of the larger stream of activities which contributed to and culminated in the November general elections. As such, when private political party organizations held candidate selection events (caucuses, primaries) they were effectively engaging in procedures which were subject to constitutional prohibitions--just as if they were performed by the state government itself. Hence, the concept of "state action."

All of this points toward a constitutional denial of equal protection for voters in Michigan and Florida, a charge which voters could bring against their respective state legislatures and/or the DNC. The issue posed in this light would likely result in court rulings requiring do-overs at state expense.
Would such an effort and result really matter? In terms of the political outcome, perhaps not. In terms of assuring fairness, absolutely.