Monday, November 15, 2010

Harry Kresky: Abraham Lincoln’s “government of the people, by the people, for the people” still needed defending

UPDATED 11.16.10 -- This just in: Defendants for independent voters filed a post trial brief. Read here:

Post Trial Brief Kresky Allen Idaho Case 1-08-Cv-00165-BLW

The Idaho Partisan Problem

by Harry Kresky

As I flew back to New York from Boise last month, I thought about our history as independents and felt a deep appreciation of this moment. 147 years after the Gettysburg Address, Abraham Lincoln’s “government of the people, by the people, for the people” still needed defending.
Gettysburg, November 19, 1863 

In July 2008 I joined with Idaho attorney Gary Allen to represent 11 Idaho independent voters,  the Committee for a Unified Independent Party, Inc. (a/k/a, and the American Independent Movement of Idaho seeking to intervene as defendants in a lawsuit brought by the Idaho Republican Party (“IRP”) to dismantle the State’s open primary system. Intervention was granted, and in October, 2010 the case went to trial. We are now awaiting a decision by U.S. District Judge B. Lynn Winmill.

If the IRP wins the lawsuit, the 28 percent of the Idaho electorate who are independents, will be barred from participation in Idaho’s primary elections unless they registered into a political party which they do not wish to do. As the lawsuit progressed, it became apparent that more than the narrow issue of their participation in the first round of voting is at stake. At a time when Americans are deeply concerned with how partisanship is making it increasingly difficult to achieve consensus (or even constructive compromise) on the issues facing our country, plaintiffs  assert that the U.S. Constitution (which makes no mention of political parties) not only protects the right of citizens to organize  parties, but guarantees party organizations a dominant role in determining  the electoral framework.

The issue before the Court is the people v. the parties. As independents, we believe that  in a democracy the people determine the form of government and how those who govern are chosen. Apparently, not everyone agrees with this proposition. The expert witness retained by the IRP in support of its effort to close the primaries, a Professor at Duke University, had the following back and forth with me at his deposition:

Q.   Right.  Okay.  But isn't this whole thing about the voter?  Isn't that what democracy is?
A.   No, sir.
Q.   What is democracy?
A.   Democracy is about having a strong,  responsible, party system that offers a clearly articulated set of alternatives that educates voters and gives them the information they need to make informed choices.  Voters on their own can't make choices.
I can only hope that Gary and I made the people’s case.

Harry Kresky is an attorney based in NYC who represents CUIP ( He blogs at Legal Briefs.

No comments: