February 14, 2011

Attorney general, indepedents try to block Republican suit to close primaries

Eric Connor
Staff writer

The Republican Party’s legal efforts to close its primary elections to those outside its ranks has met resistance both from the state attorney general of its own party and an unlikely coalition of independents who say they want voting influence in the state’s dominant political organization.

In court filings, a lawyer for Republican Attorney General Alan Wilson has asked a federal judge in Greenville to dismiss a lawsuit filed by the state and Greenville County branches of the Republican Party.

The attorney general’s request for summary judgment cites concerns over protecting the integrity of the voting process, avoiding voter confusion and ensuring public scrutiny of the voting process.

Meanwhile, a collection of Democratic and self-described independent interests — among them the Legislative Black Caucus and the Columbia tea party — have asked the judge to allow them to intervene.

Among the worries over a closed Republican primary cited in their request is the creation of a more-divided electorate in a state “so heavily dominated by one political party.”

A lawyer for the Republican Party branches — former county party Chairman Samuel Harms — said in the lawsuit that the State Election Commission forces the party to conduct an open primary, providing unfair influence to political rivals and those who don’t espouse the party platform.

The suit asks U.S. District Judge Michelle Childs to either grant injunctive relief or deem the provision unconstitutional because it violates the constitutional right to free association.

“A single election in which the party nominee is selected by nonparty members could be enough to destroy the party,” Harms wrote in the lawsuit.

Primary requirements

The June primaries can effectively determine who wins state office in South Carolina.

Oftentimes, a Republican who wins the primary will move on to the general election in November to run unopposed or face a long-shot Democratic or independent candidate.

In South Carolina, any registered voter is allowed to participate in any primary without revealing political affiliation — though the voter must choose only one primary on that day. 

The Election Commission will allow a party to select its nominees in a convention format that bypasses primaries, but the state requires that the convention must agree by a three-fourths majority.

The requirement in effect mandates an open primary because, unlike a simple majority, “it is virtually impossible to get 75 percent of the membership of any organization to agree on any matter,” Harms wrote in the suit.

Assistant Attorney General J.C. Nicholson wrote in a request for dismissal and summary judgment that party primaries aren’t comparable to private group decisions.

The state’s requirements — which are protected by the federal Voting Rights Act — help avoid voter disenfranchisement and a proliferation of fraudulent candidates, Nicholson wrote.

Cited in the Republicans’ complaint is a 2007 decision authored by former 4th U.S. Circuit Court of Appeals Chief Judge Billy Wilkins, which addressed disagreement over Virginia’s open-primary laws.

The decision of the appeals court — which has jurisdiction over South Carolina federal laws — held that “mandatory open primaries are unconstitutional,” Harms wrote.

However, Nicholson wrote that the ruling dealt more with how Virginia had allowed incumbent elected officials to decide how their party’s nominee would be selected — primary, convention caucus or “firehouse” primary — which the court deemed to provide an unfair “dealer’s choice.”

The disparate group of independents and state Legislative Black Caucus members — each being represented by former Democratic state legislator Fletcher Smith of Greenville and New York attorney Harry Kresky — is awaiting an answer from the judge on whether it can have a stake in the lawsuit.

The groups listed in the motion to intervene are three self-described South Carolina independent voters, the South Carolina Independence Party, South Carolina Constitution Party, Progressive Network Education Fund, Columbia tea party, IndependentVoting.org and 13 members of the Black Caucus, including Greenville Rep. Karl Allen.

No answer has been filed to the group’s arguments.

In its motion, the group cites the 4th Circuit opinion on Virginia as recognizing the right of political parties “to provide some mechanism for rejecting voters who express no sympathy with the party or its principles” but that the relief sought “goes well beyond that.”

The group in its motion referred to at least one Mississippi case, filed in that state by Democrats, in which relief was denied because the party couldn’t prove the system had actually caused any harm.

The state Republican Party doesn’t have the right to require voters to join a party or “declare themselves non-aligned,” the attorneys wrote.

Key to the argument, they wrote, “is the new, but growing, phenomena of significant numbers of Americans self-identifying as independents … and the pivotal role they played in the recent presidential primaries.”

In particular, the attorneys wrote, one South Carolina voter represented in the motion and Black Caucus member Joseph Neal raise concerns that the state’s two major parties will become more racially aligned.

The concern, they wrote, is that “if this lawsuit succeeds, it will further racial polarization in South Carolina as whites will increasingly gravitate to the Republican Party, while the Democratic Party will become predominantly African-American.”

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