When one thinks of Louisiana, the first thing that comes to most people’s mind is likely not “model for electoral reform.”  This, after all, is the electoral system that in recent years has brought a veritable parade of politicians whose terms in office have transitioned into terms in prison on corruption charges.  That’s why it may come as a surprise that there are movements afoot in states across the country to adopt the most unique element of Louisiana’s electoral system.

In 1976, Louisiana adopted a non-partisan blanket primary system for both its state and congressional elections.  Also known as an “open” or “top-two” primary, this unique system puts candidates of every party on the same ballot for the primary.  If any one candidate receives a majority of votes, that candidate is elected without any need for a general election.  If, as frequently happens when there are more than two candidates on the ballot, no candidate wins a majority of votes, the top-two candidates go on to a run-off general election. The goal of open primaries is to promote the election of more moderate candidates.  The theory, however, is controversial.

In a typical “closed” congressional primary – one where registered voters select from a slate of party designated candidates – voter turnout is light, roughly 10% to 15% of the electorate.  This means that a small group of ideologically motivated voters control the candidate options available to everyone else in the fall election.  In an open primary however, it is argued, the dynamics will be very different.  Particularly in districts that have been gerrymandered such so that only one party can win, the system creates the possibility that two candidates from one party will end up in a run-off general election.  In that election, instead of the party fringes controlling the options, a more centrist candidate is likely to be selected, because voters of the party with no candidate on the ballot are likely to control the outcome of the election.  This is the theory.

For thirty years, this system attracted little attention.  It took twenty years, for example, for the Supreme Court to rule that because the system created the possibility of electing congressman a month before the rest of the country voted for their representatives, it violated the Elections Clause, which grants Congress the exclusive power to set the date for Federal Elections.  Louisiana quickly shifted the primary to the federally mandated day and pushed the run-off into December, creating an equally bizarre situation in which a month after every other state has selected representatives, Louisiana may be heading back to the polls.   This anomaly was never much of a problem because Louisiana has only seven congressmen.  However, more states are joining the party, including some heavy hitters.

A number of states, including Texas and Alaska, have used the system for special elections; however, until recently, no state had adopted the system for primaries.  That changed in 2004, when Washington adopted a similar system in which the top two primary finishers automatically face off in a general election.  The Supreme Court upheld this practice against facial challenge in 2008, although it appears the parties who challenged the law are back with an as applied challenge for round two.   Ironically, Louisiana only recently returned to the open primary model, having temporarily reverted to the closed system.  A more important newcomer is California, she of fifty-three Congressional seats, which joined the “top-two” primary parade by constitutional referendum in June.  Proposition 14 was supported by Governor Schwarzenegger but opposed by nearly every political party.  Opponents of the measure claimed that the change would restrict the ability of third parties to reach the ballot in November because, as the name suggests, third parties would seldom be able to put forward a second-place primary candidate.  California’s new primary system will debut for the 2012 elections.  When all of these statutory changes go into effect in these three states, 69 Representatives, or nearly 16% of Congress, will be elected via open primary.  Will this help to make Congress more moderate?

The evidence from Louisiana is mixed at best.  Opponents of the open primary love to point out that former Klu-Klux Klansman David Duke ended up in a run off against Edwin Edwards in 1991. Duke received nearly a third of the vote in the primary and actually gained a higher proportion of the vote in the general election.  This is hardly a ringing endorsement of the tendency of the system to select moderates, although ultimately the more moderate candidate was selected.  In the end, it is very difficult to determine how these changes will affect California politics.  The political climate in the two states are very different, and so little empirical study has been devoted to Louisiana’s electoral system, that venturing a prediction is risky.   Nonetheless, given the partisan deadlock in both California’s and the Nation’s legislature, it may just be that the Golden State has a bit to learn from its friends down on the bayou.

Sam Robinson is a third-year law student at William & Mary Law School.

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