A Twisted Tale of Partisan Politics

A Twisted Tale of Partisan Politics

by Harry Kresky

Huffington Post
Posted: 03/ 2/2012 5:34 pm

A strange case in Tennessee got my attention. Now it's before the U.S. Court of Appeals for the 6th Circuit, as the judges consider whether a political party has the right to overturn the results of a primary election conducted entirely in accordance with state law.

Here's the background. Rosalind Kurita ran for re-election to the State Senate in 2008 and beat her opponent Tim Barnes by 19 votes in the Democratic Party primary. Candidate Barnes challenged the result on the grounds that Kurita won because many Republicans and independents participated in the election. But Tennessee, along with some 17 other states, does not have partisan registration. There, voters are just voters, and all are allowed to choose the primary they wish to vote in. So, if they're were not registered into a party in the first place and cast their vote legally, on what grounds were those who voted for Candidate Kurita judged to be Republicans and independents? Shouldn't their votes count the same as those who voted for Candidate Barnes?

In Tennessee, disputed primary elections are referred to the political party whose nomination the candidates seek. Here the matter was "adjudicated" by the Executive Committee of the State Democratic Party under rules adopted after the challenge was filed by Barnes. The "rules" articulated no standard by which the issue was to be determined. The Committee made no specific findings, but voided the election on the grounds that the results were "incurably uncertain." The Party then gave the nomination to Barnes.

Kurita claimed that she was denied due process and unconstitutionally deprived of the election she had won. The trial court rejected her claim on the grounds that the Tennessee Democratic Party was a private organization that did not have to accord due process and, further, that she has had no legally protected interest in the results of the primary election she had won. The decision did not address the rights of the persons who voted for her, or their being deprived of their choice of candidates in a state run and state financed primary. (Apparently, the Tennessee Democratic Party was angry at Kurita because she had supported a Republican for election to the State Senate speaker office the year before she ran for re-election.)

Kurita, like Alice in Wonderland, has fallen into the rabbit's hole of partisan American politics. The parties run the government; they write the laws by which the citizens of their states must finance and conduct primary elections. And when the outcome of an election is not to the party's liking, it can overturn it on any grounds, or no grounds whatsoever, under a set of rules that are adopted for just that purpose.

To add to the madness, the Tennessee Democratic Party rested its right to ignore the will of the voters who participated in the primary election to choose its candidates, on the Party's (not the voters') First Amendment right of freedom of association. Is it any wonder that our elected officials place the rights of their party over the rights of the voters and the interests of the State or country? If they do otherwise, they jeopardize their chance for re-election, the wishes of their constituents voters notwithstanding?

This twisted tale sheds light on why so many Americans don't bother to vote and why a plurality of them have become independents.

Harry Kresky, a New York City attorney in private practice, is counsel to IndependentVoting.org - a national association of independents with organization in 40 states. He is one of the country's leading election attorneys and has represented independent voters, candidates and parties for the past 30 years. He currently represents independent voters in a precedent-setting case in U.S. District Court defending open primaries in Idaho. Kresky recently teamed with attorneys from the law firm of Holland and Knight to prevent the destruction of historic St. Brigid’s Church in lower Manhattan.