Supreme Court considers how open or closed primaries can be


Published: Thursday, January 20, 2005 at 6:01 a.m.
Last Modified: Wednesday, January 19, 2005 at 10:12 p.m.
WASHINGTON - The Supreme Court debated Wednesday whether voters from one political party should be allowed to cross over and vote in another party's primary, a practice forbidden in nearly half the states.
Justices are reviewing a First Amendment challenge to Oklahoma's system by the Libertarian Party, which wants to open its primaries to voters registered as Democrats or Republicans in hopes of attracting more members.
Oklahoma is one of 24 states that have closed or semi-closed primaries, and a broad ruling from the court could force changes to those laws. Closed primaries require people to register and vote with one political party. In semi-closed systems, such as the Oklahoma one, political parties generally may allow only their own members and independents to cast ballots.
The Supreme Court already has said that states may not force political parties to take votes from people registered in other parties. Now the justices will decide a flip issue of that: what to do if political parties want to accept voters of any party but the state disagrees.
Washington attorney Gene Schaerr, representing states that back Oklahoma, told justices that the freedom could be abused. For example, Democrats could encourage members to vote in a Republican primary to try to win a nomination for a candidate they see as easier to beat, he said.
James Linger, the lawyer for the Libertarian Party, said its goal is to reach out to Libertarian-leaning Democrats and Republicans, and people who would otherwise not vote in an election.
"This would actually benefit the major parties," Linger said, by revealing which members are least loyal.
Several justices seemed concerned that Oklahoma does not give voters a chance to participate in third-party elections. Voters are permitted to switch their registration to the Libertarian Party, but that must be done about eight weeks before the election and it might not be known then if the party had qualified to get a candidate on the general election ballot.
"It gives them a very impossibly short window," said Justice Sandra Day O'Connor, a former Arizona state senator and the only member of the court who has ever served in an elected office. "Isn't that kind of burdensome?"
Justice Anthony M. Kennedy said many people are not paying attention to elections two months in advance. "The public just tunes out until the last couple of weeks," he said.
Oklahoma Assistant Attorney General Wellon Poe Jr. said the Libertarian Party could get in paperwork early to ensure a place on the ballot before eight weeks.
Justice Antonin Scalia appeared the most sympathetic to Oklahoma. He said political party systems are about parties electing candidates who share their views. He authored a high court ruling in 2000 that threw out California's wide-open primary process.
Libertarian-leaning people can always get around the state's restrictions, Scalia said. "If they're ashamed of the 'L' word, they can just register as an independent," he said.
Richard Hasen, an election law expert at Loyola Law School, said the court has a chance to clarify the rights of minor parties. "This is really an issue about whether parties get the last word," he said.
The states with closed or semi-closed primaries are Arizona, California, Colorado, Connecticut, Delaware, Florida, Iowa, Kansas, Kentucky, Louisiana, Massachusetts, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Oklahoma, Pennsylvania, Rhode Island, South Dakota, West Virginia and Wyoming, the court was told.
The case is Clingman v. Beaver, 04-37. 'Jane Roe' asks high court to overturn Roe v. Wade
WASHINGTON - The woman once known as "Jane Roe" has asked the Supreme Court to overturn its landmark Supreme Court decision that legalized abortion 32 years ago.
Norma McCorvey, whose protest of Texas' abortion ban led to the 1973 ruling, contends in a petition received at the court Tuesday that the case should be heard again in light of evidence the procedure may harm women.
Two lower courts in Texas last year threw out McCorvey's request. But in a strongly worded concurrence, 5th U.S. Circuit Court of Appeals judge Edith H. Jones criticized the abortion ruling and said new medical evidence may well show undue harm to a mother and her fetus.

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