A Private Dispute
Friday, March 28, 2008
by Daniel Larsen
[EDITOR'S NOTE: This 'vox Populi' is in response to the series of Commentaries by Richard E. Berg-Andersson under the title ' THEATRE OF THE POLITICALLY ABSURD'. We here provide a link to PART THREE of this series: the interested reader should please know there are links to the previous two parts at the very beginning of PART THREE]
Your three-volume commentary is a masterful examination of the legal issues surrounding the Florida and Michigan situation, especially the first two volumes. However, I believe that despite the quality of your research, your ultimate conclusion about this particular situation is deeply flawed.
Federal courts do not have any ability to intervene in the situation. For although you have noted correctly that states are sovereign while political parties are not, you have missed one fundamental fact: political parties are not required to obey state law in how they ultimately choose their delegates to the national convention. That is, a state cannot force a political party to select its delegates in the way that the state would like. All that a state can do is to create a mechanism to assist political parties in selecting their delegates, but a state cannot force its state political parties to take part in them.
There are actually two parts to a state-run presidential primary: the state statutes creating the mechanism, and then the state party rules recognizing the mechanism and participating in it. The latter, however, do not need to line up with the former. Consider, for example, my home state of Nebraska. The state offers a mechanism to facilitate the selection of delegates: a state-run presidential primary, held in May. The political parties, however, are not required to make use of the primary in deciding how to select their delegates. And both do not. This year, the Nebraska Democratic Party held its own, private, party-run caucuses for February 9 after a bid in the legislature to move the primary up failed—and it did so completely independently of state statutes. For Nebraska Republicans, meanwhile, the primary is purely “advisory”—the delegates are selected at the state convention in June. Indeed, the state-run presidential primary is so meaningless that they had might as well just cancel it, since neither party is meaningfully participating in it.
In precisely the same manner, the Florida and Michigan Democratic parties were not required to participate in the January state-run presidential primaries. They could have chosen not to do so. And indeed, that is precisely what they should have done—as state components of a national party, they had the obligation to adopt state party rules that obeyed the rules of the national party. They should have adopted rules that declared the state-run primaries merely “advisory” and either scheduled a party-run “firehouse” primary or scheduled party-run caucuses so as to obey the national rules. For although a state is sovereign entity, it does not have the ability to compel a state political party to write its rules in such a way that it must make use of the state’s selection mechanism.
It is here that we see the fundamental difference between this situation and the situation in Allwright. First, in that case, it was purely a state matter: the question was about selecting nominees for state offices, a state process where refusing to participate is essentially unimaginable. Though, of course, a political party—as a private entity—could theoretically refuse to participate in the state-run primary for a state office, select its nominee its own way, and then get that nominee on the ballot as an “independent.” But unless the political party actually does that, it is acting as a “tool” of the state and thus subject to its restrictions.
In Allwright, it was a case where the political party rules were tightly bound to the state statutes. By tightly binding the political party rules to the state statutes—such that, for example, unsuccessful candidates for the primary election were ineligible to run independently—the state party was consenting to become a “tool” of the state, and, thereby, restrictions that applied to the states became applicable to the political party as well. In selecting delegates to the national conventions in a state-run primary, however, the state is acting as a tool of the political party (by offering a mechanism for them to use), and not the other way around. Of course, if the party consents to use the mechanism that the state provides, they must obey restrictions that go with it. But if they do not use a state-run mechanism, there is no such obligation.
Remember: Allwright had no impact on purely party-run selection procedures for national convention delegates. I call your attention to the case of Mississippi’s all-white delegation to the National Democratic Convention in 1964 and the ensuing firestorm. The all-white delegation was selected through racist, but private, selection procedures. The end to racism in selection procedures was effected by a change in Democratic Party rules for the 1968 Convention, not court intervention. So Justice Marshall got it right when he declared: “Where the primary is by law made an integral part of the election machinery, then the right to vote at that primary is protected just as is the right to vote at the election.” But, when actually private, the courts cannot intervene.
The recognizing of that party’s nominee on the state ballot in the general election really is just a convenience, nothing more. It is not like a Governor, where refusing to participate in the state-run primary is so unimaginable. If the statutes in my state tried to punish the Democrats or the Republicans for not participating in the state-run primary by refusing to recognize the results of their national convention, do you honestly think the party would not register their nominee as an “independent” in a heartbeat?
Overall, the level of state participation in determining the national conventions is quite minute. The national conventions are certainly not acting as tools of Congress or the federal government, as you have so expertly pointed out. The only interpretation that supports your conclusion would be to say that the state political parties are acting as the tools of the states, and then to say that the national conventions are then acting as the “tool” of all 50 states collectively. But is that an explanation that really makes sense? The National Conventions create all their own rules and apportion their delegates utterly by themselves. And even the state political parties are free to ignore state mechanisms for the selecting of the delegates and come up with their own—and they frequently do so.
Furthermore, have you really thought through the consequences of interpreting the National Conventions as the tools of all 50 states collectively? Would that not immediately make all the elaborate delegate bonus schemes completely unconstitutional? Would that not immediately render unconstitutional, for example, the Nebraska Republican Party’s approach to selecting its delegates? Would not the “Texas Two-Step” come under immediate constitutional suspicion? What about the superdelegates? Allowing different states go at different times would be constitutionally problematic as well. Could you not reach the point of needing a court-mandated national primary to solve the equal protection issues presented by having different states’ votes weigh differently depending on when they’re held (using the supremacy clause to squash each state’s right to hold its elections when it pleases)? And above all, how on earth does it make sense to say that the Supreme Court has the power to completely rewrite state and national party rules—and perhaps even to order a national primary—when Congress is utterly and completely impotent to do so?
The seating of a national convention is far better interpreted as a private phenomenon—which is, ultimately, what it is. Each national party comes up with its own very different rules. Each state party comes up with its own often very different rules (especially in the case of the Republicans). The relationship between the states parties and the states is often tenuous at best. The relationship between the national parties and the states collectively is virtually non-existent. And, as such, federal courts simply have no business interfering. The Florida and Michigan Democratic Parties broke the rules by agreeing to go along with their legislatures’ plans, and as such, they probably ought to face the consequences. But if Florida and Michigan are to be seated, that is a decision for the Democratic Credentials Committee and, ultimately, the Democratic Convention—and certainly not one for the federal judiciary.
Mr. Berg-Andersson responds:
First of all, I want to commend Mr. Larsen for a very well thought out and well-written counter-argument to my own argument in my three-part Commentary under the title 'THEATRE OF THE POLITICALLY ABSURD'. I wouldn't want any even strenuously defended disagreement I might have (as will be expressed below) with what he has written in the above 'vox Populi' having him, or anyone else reading this, thinking I might well think otherwise!
Having said this, however, I do want to express at least some points of disagreement with Mr. Larsen here and what I write below, as regards my own views, should be considered as part and parcel of my own original argument in the three-part Commentary I've already written (or, for that matter, my later response to a 'vox Populi' dated 22 March).
I'll begin this response with an actual point of agreement with Mr. Larsen (at least in part):
I agree wholeheartedly with at least the basic thrust of the first portion of Mr. Larsen's last statement, where he writes "But if Florida and Michigan are to be seated, that is a decision for the Democratic Credentials Committee and, ultimately, the Democratic Convention—and certainly not one for the federal judiciary". I do not at all think, as he seems to, that the Federal Judiciary has no say on this issue whatsoever (for reasons I will make clear soon enough) but, nevertheless, I myself think the political process should play itself out first, not only because the Federal courts will likely- for the same reasons implied in the per Curiam Opinion in O'Brien v. Brown back in 1972- refuse to consider the dispute in any event until the Convention itself has already acted on this dispute because, until the Convention has so acted, the dispute is one that is so clearly under the rubric of a "political question" where the Judiciary generally most fears (and, indeed, should fear) to tread, but also because the ordinary procedures currently used to handle such a dispute within the Party itself should play out in any event.
We have already started the 2008 presidential nominating process in both Major Parties and it is now too late to do anything to change it, so they have to run to conclusion (even if this means that there might have to be a floor vote of the delegates themselves at a National Convention in order to resolve any such disputes, in both Parties).
Truth is: Florida and Michigan cannot actually claim, in a court of Law, that they each have been denied seats at the 2008 Democratic National Convention until that Convention has actually denied them said seats! (The same would hold true, by the way, for the "sanctioned halves" of the 5 States sanctioned by the GOP as regards any potential legal challenge arising out of these not being seated at this year's Republican National Convention). Any responsible jurist should, prior to such a (still only, at the time, potential) denial by a Convention, rule that the "case or controversy" is not yet "live" for judicial determination, even though so waiting until the Convention is already in session rather obviously (to here borrow the very language in the per Curiam Opinion in O'Brien) "may well preclude any judicial review of the final action of the Democratic National Convention on the recommendations of its Credentials Committee" (for how could a legal challenge to a denial of National Convention delegate credentials by vote of said Convention even be filed, heard, and determined in a Federal court [let alone any possible appeals from a decision at the trial court level] before the Convention itself adjourned sine die but a few days after the vote, by its delegates, on the floor of that Convention to so deny said credentials?).
Thus, the only real difference between Mr. Larsen and myself, as regards his 'vox Populi''s final sentence, is that he clearly doesn't think the Federal courts have any authority at all to oversee a Party's nominating process, while I think they do have such power: I just don't see the Federal Judiciary as having the ability to actually exercise such authority as I claim they do have, given the rather obvious time constraints involved.
Having said this, I will now turn to at least some of the more important disagreements I have with Mr. Larsen. However, whatever these disagreements, Mr. Larsen's 'vox Populi' should, and properly so, stand alone as a counter-argument to my own positions and the interested reader can always compare what he has written above to what I myself already wrote in my three-part Commentary if the reader would like to. for some reason, further explore such a thing!
Mr. Larsen opines that the Allwright case involved what was "purely a state matter" and, therefore, is not germane to the presidential nominating process under, I suppose, the notion that the nominations here are for Federal, not State, elective office (a notion that Mr. Larsen himself has left unstated). My essential argument, in my three-part Commentary, was that the presidential nominating process is "purely a state matter" for the following [Federal] constitutional reason:
Each State shall appoint, in such Manner as the Legislature thereof may direct, a number of [presidential] Electors... (Article II, Section 1, clause 2 of the U.S. Constitution)
This makes what we all call a U.S. Presidential Election every fourth November, in reality, 50 separate State elections for Presidential Electors (with a 51st such election in the District of Columbia under the auspices of the 23rd Amendment). Once a State, by Law, "directs" that these Electors, indeed, be "appointed" by vote of the People of the State (as all States of this Union already have), the Presidential Election(s: plural, if we here wish to be technically- and constitutionally- accurate) become, by very definition (of the Federal Constitution itself), "purely a state matter"!
And, if these presidential elections are, indeed, "purely a state matter", then- by the doctrine in Classic- so is the methodology of how the candidates for President (and Vice-President) are nominated: we are, here, brought back to what Justice Thurgood Marshall wrote in his dissent in O'Brien (and where he specifically cited Classic as backing for the following): The primary process was, by State law, the first step in a process designed to select a Democratic candidate for President; the State will include [presidential] electors pledged to that candidate on the ballot in the general election; the State is intertwined in the process at every step, not only authorizing the primary but conducting it, and adopting its result for use in the general election. In these circumstances, the primary must be regarded as an integral part of the general election.
Mr. Larsen attempts to parry this concept with his statement that "[i]f the statutes in my state tried to punish the Democrats or the Republicans for not participating in the state-run primary by refusing to recognize the results of their national convention, do you honestly think the party would not register their nominee as an 'independent' in a heartbeat?" And just who would be expected to then place said "independent" Presidential ticket on the State's general election ballot?- the election officials of the State itself! And just who would be paying for the conduct of that very general election in any event (whether the Party national ticket appears under the Party's own banner or an Independent one)? Members of the Party only? Or would it be, rather, all the taxpayers in the State- regardless of Party affiliation, support or lack of either? I suggest the latter, which would still make the Party's nominating process in that State "an integral part of the general election"!
The fact is that the Major Parties, once they have nominated their respective national tickets, expect to have it placed on the ballot in each State (or, rather, to- again- be technically [and constitutionally] accurate, the Parties expect a slate of their own presidential Electors to be duly considered for "appointment" through the means of the voters of the State in the general election selecting the national ticket of their choice at the polls) and, where this is what is- indeed- to be done, the whole process from nominating methodology through electoral process is subject to ultimate State purview as the constitutional conductor of said election.
To outline my own argument in this regard as simply as possible:
1. The Federal Constitution left the method of "appointing" presidential Electors to the States alone;
2. the States- acting under such constitutional authority- all decided to allow their respective People to do the "appointing" through a general election conducted, overseen and paid for by the States (a general election that, under each State's own Constitution, is mandatory: that is, the States have no choice but to conduct, oversee and pay for it!) and this has, by very definition, made the presidential electoral process "purely a state matter" (since, per 1. in this outline, it can't at all be a Federal one);
3. national candidates for whom the presidential Elector-candidates are expected to vote in their respective Electoral Colleges (also plural, to be technically [and constitutionally] correct) are ultimately nominated by the Parties based on the results of in-State nominating procedures (whether a Primary- as that term is currently more generally understood, a Caucus/Convention system [recall that Caucuses were the original form of "primary", the so-called "indirect primary"] or even a Party-run so-called "firehouse primary") which may be regulated (such "regulation" including what Mr. Larsen refers to as "a mechanism to assist political parties in selecting their delegates") by State law (by the way, I'll come back to that purposely underlined "may" later);
4. such in-State nominating procedures are just as much a part of the overall presidential electoral process as the general election (for, in this case and in reality, presidential Elector-candidates) itself (per U.S. v. Classic)
5. being "purely a State matter" (as already noted in 2. above), the use of such in-State procedures to select nominees for a general (here, a presidential) election (said nominees being those expected to be voted for by a Party's slate of presidential Elector-candidates), indeed, makes the action of the Parties in regard to these nominating procedures the actions of the State (per Smith v. Allwright).
6. Therefore, such actions (even if conducted by the Parties themselves) are required to adhere not only to State Law but also Federal constitutional requirements as regards the conduct of State electoral processes; when such Federal constitutional requirements are not adhered to, a Federal court is the proper forum for legal redress and remedy.
And this brings me to the most disturbing aspect of Mr. Larsen's analysis:
He argues that "[t]he seating of a national convention is far better interpreted as a private phenomenon—which is, ultimately, what it is" but he also claims that "political parties are not required to obey state law in how they ultimately choose their delegates to the national convention". Since when does merely being a "private phenomenon" put the entity so private (whether a single person or an organized group of persons) altogether beyond the reach of State law in all cases? No Right or Liberty is so absolute, not even the Right of Privacy (which, or so the reader should know, I think exists: I do not at all accept the lame argument that it does not exist simply because the Framers of the Constitution- or, for that matter, the Bill of Rights- failed to specifically mention it: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the People reads the 9th Amendment coming out of that Bill of Rights; the "specific mention" argument against a Right of Privacy is, therefore, the very same "deny[ing] or disparag[ing]" specifically enjoined therein!).
Mr. Larsen concedes that I "have noted correctly that states are sovereign while political parties are not" but then, later, suggests that "the state is acting as a tool of the political party (by offering a mechanism for them to use), and not the other way around". My contention, on the other hand, is that a State cannot be a "tool" of a political Party, any more than it can be (at least constitutionally speaking) a "tool" of any other private individual or institution; as a sovereign government, the only thing a State can be the "tool" of is the People of the State itself (where, historically, a given State might well have allowed itself- for a time- to become a "tool" of various and sundry private entities and interests, it is only because the People of that State "looked the other way"; once the People affirmatively ceased to "put their heads in the sand", the State's constitutional sovereignty- as expressed via the political will of its People- was able to put an end to this).
People so often forget that it is the People themselves who make the laws carried out in Our Name by a sovereign government (if you reading this think that "the legislature" or "the government" makes the laws, you hereby get an 'F' in basic American Political Science [;-)]). Theoretically, we Americans could simply hold, say, a daily Town Meeting at our respective State capitals to make all the State's laws (of course, we would then have no life and, certainly, no leisure-time; we wouldn't have time to work at our jobs, thus we would have no money; we'd all be poor, hungry, homeless, clothed in rags; the local economy would collapse, etc. etc. ad infinitum ad nauseam).
Our State Constitutions, then, are merely devices through which we have, in written (if you will, contractual) form, devolved our own sovereign authority- our "power"- as free individuals to make (and, in addition, enforce and apply) the laws to others either representing us or, at least, appointed by said representatives (with the "check" on having so granted this power to others being that we have [hopefully] also provided our Constitutions with devices- where not outright Initiative and Referendum, at least the requirement that Amendments to our State's Constitution be approved by the voters at a General Election before taking effect- through which we the People can take our power and authority back as the ultimate sovereignty in Republican Democracy.
The very first clause of the Federal Constitution (Article I, Section 1) begins All legislative Powers herein granted shall be vested in a Congress of the United States...: "granted" by whom? The answer, my friend, is not blowing in the wind; rather it is to be found in the document's own Preamble: "We, the People of the United States"- i.e. we who "do ordain and establish this Constitution for the United States of America" (present tense because the "ordain[ing] and establish[ing]" is ever ongoing, for the "more perfect Union" is never ever able to actually be perfect: Perfection is a desirable ideal, not a practically attainable goal- yet, at the same time, to quote a slogan I would almost daily see on factory buildings around which the IRT Flushing elevated line would snake back when I was still a resident of New York City's Borough of Queens: "Perfection is not an Accident"!)
And our State Constitutions tend to contain similar language: that of my own State (New Jersey) has a separate article (Article III) entitled 'Distribution of the Powers of Government' which begins by stating that [t]he powers of government shall be divided among three distinct branches, the legislative, executive and judicial. Whose "powers of government"? Those of [w]e the People of the State of New Jersey!
Mr. Larsen's view, if taken to its logical conclusion, is that the People (as the ultimate sovereigns of the several States) are, themselves, tools of the political Parties. Now, this may well be how the Parties as institutions themselves look upon the voters- as necessary irritants? I don't know [;-)]- but it is certainly not the basis of the constitutional relationship between the authority of Parties and the sovereignty of a State and, ultimately, its People. Clearly, even a national political Party willingly does give way to the People of the several States come General Election time: Parties (and their nominated candidates) seek votes, they don't (if only theoretically [;-)]) demand them!
Mr. Larsen notes that, in his own State of Nebraska, "The state offers a mechanism to facilitate the selection of delegates: a state-run presidential primary, held in May. The political parties, however, are not required to make use of the primary in deciding how to select their delegates. And both do not." But the key here is in Mr. Larsen's middle sentence here- "[t]he political parties, however, are not required to make use of the primary in deciding how to select their delegates"- yes, 'tis true: but it is only true because his State has not so required, not because the State at all might lack the sovereign power to so require!
It has to be fairly noted that there are at least a couple reasons a State Party might be able to- without legal risk- ignore the "mechanism" set up by a State through which Parties select their delegates to their respective National Conventions: first of all, the State may not have definitively said, in its statutes, that a Party "shall" or "must" use the "mechanism" offered; or a State may not, in fact, be all that willing to so diligently enforce any statutes that might actually do so (again, if the People of such a State "look the other way" in such a case, well-----). State elective officials are almost always products of the Party system, for they depend on the Parties to raise money for campaigns they must run in order to be elected in the first place, where not also later re-elected; where officials are appointed, such appointment is usually based on someone becoming known to the officer or body doing the appointing through either having held- or at least having unsuccessfully sought- State or local office (which, usually, means having, in the recent past, run a campaign in which a political Party has had a keen interest) or, failing even this, direct involvement in Party affairs (especially where the appointee is of the same Party affiliation as those doing the appointing).
Thus, there are almost certainly many cases, around the country, where officeholders' loyalties (given the amount of money needed to run a successful campaign, one is tempted to even term these "necessary loyalties") to their respective Parties may not allow them to adopt, or even enforce, statutes which would so rein in the Parties regarding how they might conduct their nominating procedures, even as regards presidential nominations. But this is far different from- based on this observation alone- assuming that such constitutionally adopted and enforced statutes couldn't rein the Parties in!
I'm not at all suggesting, by the way, that the second of the two reasons I outlined in the paragraph prior to the previous one is necessarily the case in Mr. Larsen's Nebraska, by the way: especially considering Nebraska's unicameral Legislature is elected via a non-partisan ballot. But Nebraska does have partisan elections- including Party primaries- for Governor and other Statewide elective offices as well as its members of both houses of Congress, so (putting aside the State's May Presidential Primary, whether used or not) Nebraska is not necessarily completely immune from that about which I just wrote.
This all brings me back, then, to my having noted- in 3. of my argument in outline earlier in this response- the existence of "in-State nominating procedures... which may be regulated... by State law". I purposely underscored "may" (as well as the "in" of "in-State") in that clause to make this very point: that, while States may- or, in fact, may not- actually be regulating such in-State nominating procedures, the State- as a sovereign government representing only its People, all the People (Party members or no)- ever can so regulate, per 4. and 5. which follow in that very same outline.
Mr. Larsen writes, in criticizing my own argument, that "[t]he only interpretation that supports your conclusion would be to say that the state political parties are acting as the tools of the states, and then to say that the national conventions are then acting as the “tool” of all 50 states collectively. But is that an explanation that really makes sense?" Yes, it actually makes perfect sense, once one understands that Parties in the United States of America are "bottom up" (hence the term "grass roots") organizations, not "top down" like that which was topped off by the old Soviet Politburo!
A free political Party, within a free Society, can only come into being at the local level- Precinct, Municipal/Township or sub-County 'district' (where applicable) and/or County or equivalent. It is for this very reason that, for decades, the Republican Party didn't even functionally exist in much of the old "Jim Crow" Solid [Democratic] South and whether this was because there actually were no Republicans, or at least persons who were otherwise willing to vote for Republican candidates in a General Election, at the local level, or merely because the public profession of pro-Republican sympathies in such a heavily Democratic local community was just not all that advisable from the standpoint of personal safety, matters not. The point here is that, without Precinct or at least County Party organization, there could be no effective State Party organization and, thus, there could be no functional national Party either.
Parties in the United States are confederations, not federations: Precinct Party committeemen represent the (however defined) local Party faithful (if only in theory) to the (usually) County level (that is, the typical County Party is made up of representatives of the local Party units and cannot do anything substantial without the approval of at least a majority of such Precinct Party representatives). State Parties, meanwhile, are made up of County (and/or other sub-State "regional" unit) representatives to the State Party (Central) Committee, while the Party's overarching National Committees are themselves made up of State Party representatives.
Similarly, look at the presidential nominating procedure in a typical Caucus/Convention State, such as (famously, where not also exasperatingly [;-)]) Iowa (which so well outlines this "bottom up" arrangement): participants in a Precinct Caucus (made up of the local rank-and-file) choose their Precinct's delegates to a County Party Convention which, in turn, chooses County delegates to Congressional District and the State Conventions which, in turn, choose the State's delegates to the National Convention. And, again this whole process works from the bottom up, not the top down (for the Party's presidential nominating mechanisms at the level of the Precincts determine the County's, in turn, determining, the Congressional District's and State's, in turn, determinations as to who the State's delegates to the Party's National Convention should, in the end, be).
Sovereign States can (whether they actually do or not) regulate the political Parties (just as they can, at least to some extent, regulate any other private organization) that might operate within their borders and, where they do so regulate, the State Parties (as would any other duly regulated private entity) are bound to follow the Law, even where the Party itself- whether on the State, or the National, level- might not at all agree with said State Law (just as I can't legally host a noisy party [non-political, I assure you, though I cannot at all guarantee it would necessarily be non-alcoholic ;-)] at 3 in the morning on a Wednesday in my own backyard [which, as a homeowner, I actually- as the term implies- own] in violation of the noise ordinances of the municipality in which I reside [such municipality being a non-sovereign creature and agent of the sovereign State: thus these ordinances are, in the broader sense of the term, just as much "State Law" as State statutes themselves] simply because I, as private citizen on my own private property, might very much like to host such a gathering).
Mr. Larsen's contention is that "as state components of a national party," Florida and Michigan's Democratic Parties "had the obligation to adopt state party rules that obeyed the rules of the national party". Except that the State Parties are not mere "components" of a national Party: instead, they actually make up the National Party; therefore, the State Parties are that without which the National Party would not even exist! But, more to the point, the State Parties have an even greater obligation to follow all due State Law; what the Democratic National Committee has done to its affiliates (which is a quite different relationship from one of "component") in Florida and Michigan is put them into the unenviable position of acting, at least potentially, illegally in order to please a hierarchy that is not even sovereign to begin with!
Mr. Larsen notes that, as regards his own State, "[i]ndeed, the state-run presidential primary is so meaningless that they had might as well just cancel it, since neither party is meaningfully participating in it"- except that the very phrase "they had might as well just cancel it" implies that it wasn't, in fact, outright cancelled: because it can't be- at least not by the Parties themselves. For who, in fact, are the "they" of his own phrase? His State's own legislature! As meaningless as Mr. Larsen might consider his State's Presidential Primary (at least in terms of this presidential election year), the law setting it up yet remains on the books and, were the State of Nebraska (or, rather, the People of that State, through political pressure on their legislators and executive) to even have the political will to do so, its use could, in fact, be required of the Parties as a matter of Law. The fact that a statute is not currently used does not, in and of itself, make that statute unconstitutional!
Mr. Larsen asks, of me: "have you really thought through the consequences of interpreting the National Conventions as the tools of all 50 states collectively? Would that not immediately make all the elaborate delegate bonus schemes completely unconstitutional? Would that not immediately render unconstitutional, for example, the Nebraska Republican Party’s approach to selecting its delegates? Would not the 'Texas Two-Step' come under immediate constitutional suspicion? What about the superdelegates? Allowing different states go at different times would be constitutionally problematic as well."
Put aside the fact that the logical thrust of my own argument, going back to my three-part Commentary itself, is that so "allowing different states go at different times" is already "constitutionally problematic", my answer to that which he opines (where he might also even fear) may well end up being struck down as unconstitutional by a Federal court if my argument were to prevail is: "So what?"
Just because someone or something (a political Party, let's say) might very well like to be able to do something does not at all mean that said "something" is legally, or even constitutionally, acceptable. Yes, if the Federal courts do get involved, it could very well mean that bonus delegates or superdelegates or the "Texas Two-Step" might not, in the end, pass constitutional muster.
Again, "So what?" Them's the (constitutional) breaks!
I'm sure that those who once imposed quotas on how many, say, Jews could attend major Eastern colleges and universities not really all that long ago (within the lifetimes of many still alive, in fact) really liked what they were doing and honestly thought it was a good, where not also a great, idea quite conducive to- and not at all incompatible with- the needs and goals of Higher Education (clearly, the concomitant religious and ethnic discrimination didn't seem to at all much bother those who imposed and/or enforced these). While it was more public pressure (and, eventually, the acceptance of grants-in-aid from government) than outright constitutional scrutiny that eventually did away with these as regarded private such institutions, such quotas don't seem to be all that much acceptable nowadays (yet I am quite sure there are those out there who still pine for the days when these quotas were still not only in force but also unquestionably enforceable).
Likewise, I never ever have gotten the impression that the restrictions on African-American membership in the Texas Democratic Party of the 1930s into the 1940s (the very subject of both the Grovey and Allwright cases I cited in my three-part Commentary) at all bothered the consciences- moral as well as political- of those who adopted, and then enforced, said restrictions; perhaps, there might even still be those few (hopefully, it would be very few!) among Texas Democrats of today- who may very well wish that such could be again.
But it doesn't much matter, does it? Constitutionally, per the decision in Allwright, such cannot be. (Put aside the fact that it also should not be!)
And I would say the exact same thing about so-called "retail politics" in relation to its being used in the arguments as to why States like Iowa and New Hampshire should be allowed to participate in the presidential nominating process ahead of every other State. "Retail politics" might very well be an laudable goal (however much I personally might think this something of a Pollyana-ish anachronism; "but, if we all only close our eyes and fervently wish, in our heart of hearts, that politicians playing to modern media technology would stop doing so and, then, TV political ads might not have so much of an effect on campaigns for the Presidency---"; "If 'ifs' and 'buts' were candied nuts---" [;-)]) but, if implementing such a thing dilutes my Right to Vote as a citizen of the State of New Jersey as it might compare to the very same Right of a citizen of the State of New Hampshire, then I won't much care how laudable a goal this might be, will I? Neither should the Law and the Constitution which has solely to deal with what is reasonable, not what might be most desired.
In his 22 March 'vox Populi', Byron Brannon, in defense of such "retail politics", wrote that "a little inconvenience to those participating in the presidential nomination process in other States is not too high a price to pay so that we can keep the races for the presidential nominations from becoming the same 'TV sound bite/who has the most effective negative campaign ad'-driven circus that the Fall presidential campaign has already become". Aside from the fact that so-called "retail politics" has been such an abject failure as it relates to just such a goal (however laudable or not), I hardly think that my own Right to Vote being given such short shrift by two (as Mr. Larsen would argue) private organizations not at all directly accountable to me as a mere citizen, the two Major Parties, is only so much "inconvenience". Mr. Brannon's attitude, frankly, smacks of no little arrogance!
Yet I perceive an at least somewhat similar attitude where Mr. Larsen, in his 'vox Populi' above, writes "[t]he recognizing of [a] party’s nominee on the state ballot in the general election really is just a convenience, nothing more". But it is hardly "just a convenience" where, as I noted in my response to Mr. Brannon, the process is "gamed" by the Parties in such a way that, as the presidential nominating process proceeds apace, only certain choices are available to most of those constitutionally most authorized to make such a choice ("We, the People of the United States" in our respective capacities as "we, the People of our sovereign States" eventually called upon to "appoint" Presidential Electors, a majority of whom will vote for what appears on the "General Election menu" solely as a result of said presidential nominating process)!
This is precisely where the Federal judiciary comes in: as a vehicle through which it can be asserted that, for example, my Right to Vote in a process through which the highest Federal elective officer- the President, of course- is nominated and elected is not, somehow, less than that of someone's in another State. The issue here involves that which is known as Diversity of Citizenship- the fact that I, as a citizen of New Jersey, live in a State different from that in which- as regards the issue at hand- the citizenry votes earlier in the same presidential nominating process: the only judicial forum that can address just such an issue is a Federal court, since the jurisdiction of the courts of my own State (the only other legal forum available to me, since all courts not Federal are, by definition, State courts: again, States being the only other sovereignty in the United States of America apart from the United States itself) does not- and, indeed, cannot- constitutionally reach another State of the Union.
Thus, Mr. Larsen is wrong when he states that "Federal courts do not have any ability to intervene in the situation". He would be right only if, by "ability", he means the practical ability of a court to respond to a decision of a National Convention adverse to a particular State delegation for, as I pointed out near the very beginning of this response, the time constraint under which to have a court actually rule on the issue (let alone allow for an effective appeal from such a ruling to a higher court) is so obviously daunting. But, quite obviously, that is not at all what Mr. Larsen meant: rather, where he uses the word "ability", he clearly means "authority" or "power" and, in such a case, he is- indeed- wrong.
For Federal courts do have the power and authority to intervene in this situation. They already have done so, way back in the days of Classic and Allwright and, per the simplified outline of my overall argument earlier in this response, the current situation- in fact- flows from the decisions in both cases (again, please see 4. and 5. of that outline).
Whether they would (or even, as I've said, have the time to) do so- either in regard to seating delegations from Florida and Michigan at the upcoming Democratic National Convention in Denver or the seating of full delegations from Florida, Michigan, New Hampshire, South Carolina and Wyoming at this year's Republican National Convention in St. Paul- is, admittedly, a whole other matter, however
In other words: whatever Mr. Larsen's and my disagreements, it may all become a moot point in any event!