On Monday, July 29th, Politics for the People members from 21 states joined Cathy Stewart and attorneys Jeremy Gruber, Michael Hardy, and Harry Kresky to discuss their article Let All Voters Vote: Independents and the Expansion of Voting Rights in the United States, published in The Touro Law Review. If you haven’t read it yet, you can find it here.
Listen to Cathy’s description of the article in the call’s intro:
Cathy goes on to introduce her guests and provides a little background info on them:
Cathy kicks off the interview by thanking the authors for writing such an educative article, an invaluable tool to many of the activist leaders on the call. She asks Jeremy Gruber, who spearheaded the article, and asks him why he chose this moment to write the piece, and what he hopes to accomplish by publishing it. He responds:
…in developing the idea for the article, I was really struck by how little academic literature there is on primary elections in this country generally; legal literature is almost non-existent. So, I see this article as fulfilling a core responsibility we really have as advocates, and that is to educate the public about the need for reform and the facts that are driving that need for reform, and the judiciary really fits firmly within that goal…that’s what we’re hoping to begin to address here, is to educate the judiciary a little bit more and take a step forward with their understanding of independents and the fight for equality.”
Listen to his full response:
Cathy’s next question is directed at Michael Hardy. She expresses the hope she gleaned from reading the article, as well as the sobering effect it had on her when it reiterated just how long it took for the African American community to secure full voting rights. She brings up one principle touched on in the article, that of how the legal standard of equal protection is not set in stone, and asks Michael how he believes this principle will operate in regards to voting rights for independents:
…as time always demonstrates, what may be correct yesterday is not necessarily correct today, and therefore, as we saw in the court of appeals case in Nader v. Schaffer…which was decided in 1976, in that opinion, the appeals court stated…“No one party’s primary election is completely determinative of the outcome.” Now, that may have been true in 1976 – it is not necesaarily true today…there is no doubt that the two major party primaries, today, are not just elections of particular interest, but elections of a general interest that are functioning, in essence, as arms and agents of the state, and not as private associations, and should therefore be subjected to the first amendment and the rules of due process and equal protection.”
Listen to Michael break down his statement:
In her next question, Cathy asks Harry Kresky about the tension that has formed between party rights and voter rights, and how that tension has developed over time. Harry uses the increased activism of the independent voting community as an example, stating:
I think it’s important not to think of party rights v. voter rights as an abstraction. It takes on particular meaning at various points in this history. So initially, and for some time, the interests that were actually overtly represented in the court cases were the state, various states, and the parties. One of the things that I think our movement has helped bring about is that voters, independent voters in particular, are now more actively bringing litigation and participating in litigation in their own right.”
Listen to the rest of his response:
The first P4P member question comes from Jenn Bullock, the director of Independent Pennsylvanians. She references Obergefell v. Hodges, the landmark case that established constitutional protection for same-sex marriage, and brings up a quote the article pulls from this case:
The nature of injustice is that we may not always see it in our own times.”
She asks the authors what their opinions are on how open the supreme court is to a fuller, more inclusive vision of democracy, especially considering that a majority of voters now identify as independent. Michael Hardy responds first, saying:
I think Obergefell is a great pathway to where we have to go, and more importantly…it really does speak to, at least, what we can believe is the courts continued support of that premise…but I think we’ve seen, down through time, that the court does not exist in a vacuum, and there are times throughout history (and it happened when the nation was confronting the Jim Crow laws, and Brown v. Board of Education, it happened in other voting rights election cases, of course it happened with the passing of the 13th, 14th and 15th amendment) that the nation begins to confront situations in the nation that have to be addressed, and the court becomes the arbiter of that in terms of when Congress, or the other two branches of the government, cannot really move it forward. It has really fallen to the court to open those doors so people can move forward.”
Listen to all the responses:
Zachary Boyd, a student at the New York Institute of Technology, asks the authors about the only independent presidential candidate ever elected to office, George Washington, and inquires about the effect that allocating electoral votes by district, as opposed to by state, would have on electing independent candidates. Harry Kresky responds:
The electoral college is in the constitution and it’s here to stay, but states do have the right to determine how electoral votes are allocated, and clearly, changing from a winner-take-all system by state to allocating the electoral votes, or choosing electors, on a district basis would be a very positive step because right now, an independent candidate (unless he or she achieves the majority in the state) won’t get any electoral votes. If it was allocated on a district basis, that would change immediately and dramatically, and I think it would open up a lot of positive possibilities.”
Listen to their discussion:
Ohio resident Sadie Moore Stewart puts forth the next question. She asks the authors about the constitution being written with no mention of political parties, and how elections might occur without the involvement of political parties. Harry Kresky responds to her with examples of how some states organize non-partisan elections:
Under a top-two system or a non-partisan system, which is in effect in many places…parties really are irrelevant. Voters vote for the candidate, not for the party…there are lots of non-partisan systems, and we can easily have elections without parties having a controlling role or even an identifying role.”
Jeremy Gruber also contributes his opinion to the discussion, saying:
For me, the real question is where does the power over our elections – where is that power going to originate from? Is it going to come from the people, or is it going to come from the parties? Who are going to be the gatekeepers of our elections, who are going to be the deciders of our elections, and who are going to be the participants in our elections? For me, the parties have developed this unusual and really destructive role as gatekeepers of our elections…what we’re trying to reach is a new way forward that is really connected to a lot of the other reforms that Americans around the country are pursuing, and that is to put the people, the American people, firmly back in charge over their own elections, over their own government, and to get the gatekeepers, frankly, out of the way.”
Listen to the full discussion:
Dr. Jessie Fields asks about the roll of “gatekeeper” that parties play in elections. She discusses the difficulty our country has in removing that role, with some states holding non-partisan elections, and some merely holding open partisan-primaries. She asks the authors to define the distinction between eliminating partisan gatekeepers and holding non-partisan elections, and letting parties maintain their roll as gatekeeper with open partisan-primaries. Jeremy Gruber responds first, saying:
Partisan open primaries are an important first step. They let every voter participate in an election, but as you note, they still allow the parties to remain the gatekeepers, and as a result, they aren’t nearly as transformative in terms of a political culture that can develop in states like California and Washington and Nebraska for state legislative races, where the non-partisan system isn’t just about letting all voters vote, but it creates a whole new level of accountability, a whole new political culture, that allows different factions to work together without fear of retribution from the party leaders, and a whole new level of productivity that can occur as a result.”
Michael Hardy adds:
…the parties, again, are structures by which, technically, exist to serve the interests of the people that are being governed, if you will, and their ability to create the backwards partisanship, the negative partisanship, the partisanship that really doesn’t serve the interests of the residents of the districts, the states, and the nation that may associate with that party, are empowered when they can control who participates and who doesn’t…I think having both top two and/or open party primaries brings about that kind of change where the parties have to become more responsive to the will of the people and the will of the voters – and the needs of the citizens.”
Listen to the full conversation here:
Steve Richardson asks the authors about constitutional challenges made against requiring to indicate party affiliation when they register to vote. He says of the issue:
I am hoping that one of you gentlemen has heard or can speak to whether there’s been a court challenge to the constitutionality of voter registration requirements to indicate party affiliation or not. The only conceivable purpose I can see for asking that question is to permit discrimination or exclusion.”
Harry Kresky gives a somewhat sobering response:
In several of the cases that have occurred in recent years, the issue of whether or not requiring people to register into a party (which many states do) violates people’s right to privacy has been raised, and has been rejected.”
When Steve goes on to clarify that he’s asking whether the question of affiliation should even be allowed to be asked during registration, Michael Hardy jumps in, saying:
It’s an idea to strive for, and I’m not just saying that to put it off into the future. But I think again, unfortunately, you’re also dealing with the structure that is there and the ways in which you can dismantle it, and in many states, the structures are the two parties, and whether there’s an open primary process or not, you have to register…there are states where you don’t have to indicate your affiliation, but then again, depending on the laws of that state, it may prevent you from having a meaningful vote.”
Listen to the full discussion:
Listener Michael Maxsenti asks the next question in regards to empowering the independent movement:
As a campaign issue to empower the independent movement, what could an individual congressional representative do to help move this process of opening up our federal election primaries?”
The authors respond by suggesting the re-introduction of Congressman John Delaney’s bill to open federal elections, and discuss how more elected officials are taking a public stance in support of independents’ right to vote. Jeremy Gruber says:
We need more and more elected officials, and more and more are, taking public stands in support of the right of independents to vote, in support of a more open system. We’re seeing more legislators across the country doing that, and it’s having a real effect.”
Listen to his full response:
The next question was from a Las Cruces, New Mexico participant. He described his experience moving from Nebraska and realizing that in his new state, he was not allowed to vote in partisan primaries. He asked the authors to speak on the control major parties have over ballot access for non-major party candidates, something he has witnessed in New Mexico’s election system. Harry Kresky gave the following explanation:
The parties control ballot access in a variety of different ways. The legislature decides how many signatures a person needs to get on the ballot. In almost every state, it’s easier to get on a party primary ballot than it is to get on a general election ballot as an independent. The parties in some states, including New York, have engineered takeovers of minor parties by either raiding them by having people join them, or by making deals with leaders of minor parties in which they allow party members to carry their petition and in exchange for that, support party candidates. Those are some of the ways in which the major parties, through the control of ballot access, disadvantage independents and minor parties.”
Listen to the full discussion:
We close out the questions with one from Al Bell calling in from Arizona. He notes that parties are in the process of dying, and wonders what would become of them if unrestricted voting rights for independent voters were achieved. Jeremy Gruber expresses his hope that parties would continue as participants in the election process as opposed to gatekeepers, organizing voters and educating them on the voting process:
…parties play a role in organizing people. People organize themselves, that’s how parties first developed. I would like to see parties play a role as participants in these elections, in educating the public, in organizing the public, but not in running our elections and not being the gatekeepers of our elections. I think that is where the growth of the parties has become harmful to our democratic evolution.”
Listen to their conversation below:
You can listen to the full call below:
