Monday, October 12, 2015

Libertarian Horning Challenges Indiana's Taxpayer-Funded Primary System

Often Libertarian candidate, Andy Horning, has filed a federal lawsuit to challenge Indiana's primary system.  Horning claims Indiana law allowing the major parties to have taxpayer funded primaries which provide "more money, public attention, free advertising and media promotion, as well as an imprimatur of greater legitimacy" to the major political parties "at the actual expense of alternatives. Horning says Indiana law creates an arbitrary threshold for participating in taxpayer funded primaries, a threshold that bars independents and non-major parties.

Andy Horning
Horning also challenges the organizational advantages afforded major political parties, such as a statutory requirement that members of the Indiana Election Commission "be a member of a major political party."   Although Horning's complaint doesn't mention it, county election boards also have two of its three members appointed by the county chairs of the respective major political parties.  (The third member is the elected county clerk.)  The IEC, as well as county election boards, play a critical role on ruling on election law disputes and voter challenges. 

As a legal matter, I think Horning's latter allegation is better than the former. I will explain why in a bit. 

Libertarians have long argued for an end to taxpayer-funded primaries. Their position is that parties are private organizations that should be able to pick their own candidates...and should do so at their own expense.  Of course, the notion that political parties are completely private organization, free from governmental interference was rejected by the courts in a challenge to the "White Primaries" many state Democratic parties were holding in the South post-Civil War.

I strongly disagree with Libertarians on the elimination of primaries.  As a Marion County Republican, I am very familiar with the local party leaders use of slating, a formal endorsement process, to control who gets the nomination.  Although slating was supposed to be about party workers endorsing candidates, the process has become so rigged over the years, it essentially amounts to party bosses, not party workers, picking a slate of endorsed candidates.  Fortunately, we do have a check on that...namely a primary election in which a candidate by can be nominated by the party electorate despite not receiving the endorsement.

The Libertarians want to take that critical protection for voters away to leave the nomination decision entirely in the hands of party bosses.  Their argument is if the party bosses pick bad candidates, the public will punish them by choosing other candidates.   This, Libertarians argue, will eventually, years down the road, lead to reform and better candidates being nominated.  I don't buy it one bit.  Locally, I see party leadership which would rather endorse candidates who have little chance of winning the general election than nominate candidates they can't control 100%.   Taxpayer money spent on putting on primaries is money well spent as primaries provide often the only chance voters have to have meaningful input in terms of who is elected.

As far as legalities, I think Horning's argument that Libertarians, other third party candidates and independents have no say as far as election law enforcement is on solid footing.  Republicans and Democrats on the Election Commission have no interest in protecting the interests of third party and independent candidates and often appear to be working in tandem in keeping non-major party candidates out of the elections.  I have seen court decisions that indicate such arrangements, in which the two major parties carve out exclusive territory for themselves, are unconstitutional.  Whether Horning can hurdle standing and other challenges to succeed on this claim though remains to be seen.

As far as the challenge to the primary system, Horning cites IC 3-10-1-2 as "creating an arbitrary threshold" that has to be met before political parties and independents can participate in primary elections.  Undoubtedly Horning is referring to the 10% requirement in that statute. But a review of that statute reveals that it only says parties must hold a primary when they receive 10% of the vote in the Secretary of State's race.  That statute doesn't seem to bar other parties from having taxpayer funded primaries when they are below the 10% vote requirement.  Here is IC 3-10-1-2:
Each political party whose nominee received at least ten percent (10%) of the votes cast in the state for secretary of state at the last election shall hold a primary election under this chapter to select nominees to be voted for at the general election.
In short, that statute would appear to require the Libertarians to have a primary if its candidate received 10% of the vote in a Secretary of State's race.  But the statute does not bar Libertarians from participating in primaries now, when the party's Secretary of State candidate is getting less than 10%.  Although many Libertarians are deadset against primaries, the Libertarian Party would be foolish to pass up the opportunity to participate.  Primaries would give Libertarian candidates additional publicity and help generate interest in the party.  It would also give Libertarian-leaning voters the opportunity to so declare by participating in the primary.

Possibly there is another statute that prohibits Libertarians from participating in primaries.  I have not spent a lot of time reviewing the state's poorly organized election code to find it.

15 comments:

Anonymous said...

"Horning claims Indiana law allowing the major parties to have taxpayer funded primaries which provide "more money, public attention, free advertising and media promotion, as well as an imprimatur of greater legitimacy" to the major political parties "at the actual expense of alternatives. Horning says Indiana law creates an arbitrary threshold for participating in taxpayer funded primaries, a threshold that bars independents and non-major parties."

Horning didn't claim that. I did. We reads what I write. Horning just copied my blog posts. As I'm right, so is he, but, not being me, he might not present the essence of the evil.

This right here is the best argument:

"imprimatur of greater legitimacy"

When people are encouraged to "get out and vote," though the vote is a primary, the voter is explicitly told that there are two choices in American politics. Choose one.

That explicit political endorsement in the primary remains for the general election. When the general comes around, you've already voted for the candidate and the party one time, so you enter the voting booth with your general election choice a foregone conclusion by virtue of being goaded into participating in a primary.

State-funded primaries are easily unconstitutional. Party names on ballots are unconstitutional. If a party wants to have a primary, let it rent out the local Chuck E Cheese. If a party wants to endorse Smith for the general, there's no shortage of stamps, envelopes and shoe leather.

Anonymous said...

"Fortunately, we do have a check on that...namely a primary election in which a candidate by can be nominated by the party electorate despite not receiving the endorsement."

No, Ogden, you've just committed a mammoth logical fallacy.

The "check" in a party's corrupt practices is to allow anyone to have ballot access, not to keep the restrictive ballot access as long as someone from a club that benefits from the restrictions to have anyone receive the restrictive member's endorsement.

Why should anyone not in a club care about the club or allow the club to be given exalted ballot access?

"The Libertarians want to take that critical protection for voters away"

Dear God. As illustrated above, that is some serious spin. Restrictive ballot access destroys voter choice, but you dare call it "protection?"

"Taxpayer money spent on putting on primaries is money well spent as primaries provide often the only chance voters have to have meaningful input in terms of who is elected."

More spin. More fallacies. Money spent on primaries is not well spent, as it destroys voter choice and cements the two parties as the only choices voters have in the general election. Canceling funding for primaries is money well saved, and allowing anyone to have ballot access gives voters the most desirable goal of full voter choice.

"Primaries would give Libertarian candidates additional publicity and help generate interest in the party."

Are you actually suggesting that a party with no votes in any general election could demand to have a taxpayer-funded primary?

This would be fun to test. I'd like to see 1000 titular organizations pop up and demand elections on Primary Day. That would be fun to watch the poll workers and have them arrested if they ask "Republican or Democrat" when there are 1000 parties up for primary.

Paul K. Ogden said...

Anon 3:20, it's only the major races - Governor, Senate, President, U.S. Congress, Mayor where there is some limit on ballot access. In the other races anyone can file to run without meeting signature requirements.

Explain to me how letting party bosses, instead of the primary electorate, aids voter choices?

You really believe that a primary wouldn't give Libertarians more publicity than they currently receive?

There is nothing in the statutes I have found that prevent Libertarians, or any other party from asking to be included in the primary. Maybe it's there and I didn't see it.

Anonymous said...

"Explain to me how letting party bosses, instead of the primary electorate, aids voter choices?"

What party boss? What primary electorate? You're presuming the very thing in question.

No publicly funded primaries. If a club wants to hold a meeting at the Chuck E. Cheese, well, freedom to associate, and all, but their proceedings will be unknown to any government notice, sanction or recognition.

Straight to the general with every election. Anyone who wants on the ballot is on. If the Republican Party or the Audobon Society is sweet on a candidate, bless their hearts. Let them send out whatever mailings and drycleaning coupons they want.

No party names on the ballot. Just people. Perhaps 1,000 people. Random draw for ballot position.

"You really believe that a primary wouldn't give Libertarians more publicity than they currently receive?"

That's not really of most pressing interest to me. What I want to know is if Primary Day could have 1,000 possibly ballot choices under current law.

"There is nothing in the statutes I have found that prevent Libertarians, or any other party from asking to be included in the primary."

Cool. Let's flood the primary day with shell parties and destroy the value of the day by making it so burdensome and expensive to conduct that they give up on it.

Paul K. Ogden said...

Anon 4:10, "What party boss?" If you don't see any difference between Marion County GOP Chairman Kyle Walker picking candidates and the GOP electorate, I'm not sure if I can help you. Republicans wouldn't have had a quality councilor like Christine Scales renominated if Walker picked the candidates instead of the GOP electorate.






Anonymous said...

Marion County epitomizes the establishment problem.

Unigov said...

Paul, I disagree with you 100%, let me explain why.

You stated, "I strongly disagree with Libertarians on the elimination of primaries."

That's a strawman if I ever saw one. There can still be primaries IF political parties want to pay for them. There's no constitutional authority for any state to expend money for a party function like a primary, because there's not even a mention of political parties in the federal constitution.

Go nuts, have a primary but don't make me - a member of no party whatsoever - pay for the darn thing.

Paul K. Ogden said...

Unigov, you think party bosses want primaries? Absolutely not. They'd do away with them tomorrow if they could. They'd much rather have the candidates picked by them than the party electorate in a primary. I don't have a problem with taxpayers footing the bill for primaries that protect the right of the people, instead of party bosses, to pick the candidates. It's probably the best expenditure of taxpayer money there is.

Mike Kole said...

Paul- For the any party to automatically participate in the Primaries, their candidate for Secretary of State has to received 10% in the General Election. Ballot status is tied to SOS results, for automatic ballot access (2%), and minor/major party status + primary participation (10%).

But, if the party is a major party, it's automatic and a matter of law, not choice, to participate in the primaries.

It's in Indiana Code, has been for since the early 90s, I believe.

As the 2006 Libertarian candidate for Secretary of State, I wanted to achieve better than 10%. I have always wanted the Libertarian Party to achieve major party status. The great benefit of participating in the primaries isn't selection of candidates. It's access to knowledge of who your base is. The Ds & Rs use their knowledge of who votes in their primaries to construct their fundraising lists, and their walking lists. That's a big advantage to have.

Russell Brooksbank said...

The Libertarians nominate their candidates at a convention open to every Libertarian in the state. Want to stop your party from cramming a slate down your throat? Vote against it at the convention sponsored by your party and not tax dollars.

Paul K. Ogden said...

Mike, I know that's what everyone thinks the 10% statute says. But I've looked at it and other attorneys have looked at it. What it says is if a party hits 10% in the SOS race the party MUST have a primary. It doesn't require a party to hit 10% in order to participate in the primary. Maybe there is another statute out there, but no one has come up with it yet.

I think the Libertarians could go in and demand to be included in the primary now. They'd be foolish not too.

Paul K. Ogden said...

Russell, you have a very false assumption...that people can cast meaningful votes at conventions. Party conventions are easily rigged, denying people in the party any real choice in who their nominee will be. That's the reason there needs to be primaries.

Russell Brooksbank said...

So, if your party is refusing to listen to you then are they really your party?

Russell Brooksbank said...

And trust me, I am very aware of how a convention can be controlled. Our election laws, written by the two major parties, ensure that party leadership has a tight control. Anytime they can change the rules 3 days before the convention you can bet they will do so in order to maintain control. Even with a primary the winner still needs to be nominated at the convention. It is entirely possible for someone to win the primary yet lose the nomination.

Paul K. Ogden said...

RB, a few party bosses do not constitute the Republican Party. The GOP electorate which participates in the primary is the party.