by Byron Brannon

[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]

Aren't you mixing your 'apples' with your 'oranges'?

For example: you wrote that the New Hampshire statute, basically, says "The Granite State can hold its Presidential Primary whenever it damn well pleases: Live free or die!" ;-)

And, know what? New Hampshire- as a sovereign State of the Union- has the very power to do just that!

However, so does the equally sovereign State of Florida.

But, earlier in that same PART THREE of your Commentaries about what you called "political theatre of the absurd" surrounding the Democratic delegates from Florida and Michigan and what to now do about them, you had already written that the New Hampshire Presidential Primary voter was arbitrarily granted- by mere decree of a political Party (in this case, the Democratic Party)- a Right to Vote innately superior to that of the Presidential Primary voter who happened to reside in a State that had waited to vote (and, indeed, had to wait to vote- if the Democratic National Convention delegation from such a State wished to avoid the very same "death penalty" the national Democratic Party laid on Florida and Michigan) until no earlier than 'Super Duper' Tuesday. If the Right to Vote in what is, in essence, the very same political process (one determining a political Party's nominee for President) is not equal between voters in different States- as it is here not at all equal- then that is the very epitome of unfairness.

Yet, you conclude that what should happen (your own underscoring, so you seem to be rather emphatic about this) is that [t]he Democratic National Convention delegations from both Florida and Michigan should be seated at the Convention in Denver exactly as pledged... [b]ecause the dates for the Presidential Primaries in both Florida and Michigan were set by State law, duly adopted according to the provisions of each State's own Constitution (documents that the Democratic National Committee has no authority whatsoever to alter, or interfere with the workings of, at their own convenience) and said Primaries were, indeed, held on the dates so legally established by the States: qualified voters voted therein and, in order for their Right to Vote to be a Right both affirmative and enforceable, the pledges of the National Convention delegates determined by the results of the voting in each State should stand.

But wouldn't all this mean that the Right to Vote of those who voted in Florida and Michigan this past January would then be treated- wrongly (accepting your own viewpoint here, if only for sake of the argument)-as just as superior to the Right to Vote of the voters who voted in all the States which held Presidential Primaries on what you call 'Super Duper' Tuesday [February 5th] and even later as the Right to Vote of the voters who voted in New Hampshire's Presidential Primaries is, both in relation to all these later-voting States as well as to Florida and Michigan?

Your statement that "[i]f the Right to Vote in what is, in essence, the very same political process (one determining a political Party's nominee for President) is not equal between voters in different States- as it is here not at all equal- then that is the very epitome of unfairness" seems to be in direct conflict with your clearly implied contention that, whether New Hampshire or Florida, or any other State, a State can "can hold its Presidential Primary whenever it damn well pleases" which, of course, creates the very same "unfairness" you seem to be railing against.

How can these two conflicting views you've stated be reconciled? Or is it just, as it seems to me, that you don't really believe that the States have the sole power to determine their own Presidential Primary dates without the input of the political Parties.

I have been living in New Hampshire for nearly 15 years now, but I grew up in the suburbs of Boston- so I want you to know that I find it rather amusing whenever I come across that "Don't your dare tell us it's not our God-given right to hold the very first Presidential Primary" attitude around here at times. At the same time, I see quite a bit of value in so-called "retail politics" and I worry about the political process losing New Hampshire's (and, I guess, the same would be true of Iowa, too) quaint ritual of candidates for both Parties' presidential nominations scarfing down watery scrambled eggs and coffee from near the bottom of the pot in local eateries every four years, all while interacting with the "just plain folks" coming in for breakfast as they usually do even when there are no presidential contenders around to listen to them.

Perhaps, then, 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.

Byron Brannon
bybran92 at hotmail dot com
Portsmouth, NH

Mr. Berg-Andersson responds to Mr. Brannon:

Have I so mixed my 'apples' and my 'oranges'?

My 'apples', I suppose, are what I personally think should be (yes, indeed- my underscoring does indicate rather emphatic advocacy), while my 'oranges' would then be what actually is. But, when it comes to dealing with the constitutional/legal issues potentially surrounding the ultimate fate of Florida's and Michigan's 2008 Democratic National Convention delegations (and, for that matter, half of this year's Republican National Convention delegations from the 5 States which have been sanctioned by that Party- including New Hampshire itself), one cannot help but run the risk of mixing such 'apples' with 'oranges', but only because "what should be"- specifically when it comes to the sanctioned delegates in both Parties- has to be based on "what is", even though "what is" may not necessarily be "what should be" more generally.

Allow me to explain:

In my series of Commentaries under the title 'THEATRE OF THE POLITICALLY ABSURD', I made five basic points, which were all based on my own views- themselves based on my own best reading of the Federal Constitution and any relevant case law (as just another "John Q. Citizen" trying my best to understand the Law under which I live, not at all as an expert in Constitutional Law)- combined with the reality of just what the ramifications of my own views actually are, even if this means that other things which I might otherwise support (when it comes to the workings of a fair and equitable presidential nomination process, which the current system is not) are, at least for the foreseeable duration, unavailable, where not also impossible, given the current limitations of that very Constitution.

These five were (in their most logical order of presentment):

1. Congress has no expressly authorized constitutional power to regulate the nomination of candidates for President and Vice-President (even though it does have power to regulate the nomination of candidates for Congress itself).

2. The only way to, someday, rectify this situation (should the American People even want to do this in the first place!) is by Constitutional Amendment specifically granting Congress such power (and there are many related things to be considered, in the unlikely eventuality that such an Amendment were ever to be seriously considered: I dealt with the most obvious ones in my own proposed Constitutional Amendment on the subject from, now, four years ago)-- not exactly an easy task,

which means that

3. Like it or not- to borrow the phraseology of the 10th Amendment to the U.S. Constitution to here better make my point- the power to regulate the presidential nominating process is, by very constitutional definition, reserved to the States or to the political Parties themselves. (Simply put: if the Feds can't do it, and the States are not prohibited from doing it, the only remaining sovereignty in the United States of America that can then do it [whatever "it" might be] would have to, obviously, be the States!)-- so

4. The States can, at any time, regulate the process used within themselves to, directly or indirectly, nominate candidates for President and Vice-President, including the times and manner of their own elections which might be utilized for that purpose (in other words: yes, States can hold their Presidential Primaries when they damn well please).

5. A State, of course, may also simply leave it all to the local branches of the political Parties to do this: but, where the State does choose to act in relation to the presidential nomination process, such State action- by definition- trumps Party regulation-- because, once more: States are sovereign; political Parties are not.

Yes, you are correct-- I did write that "i]f the Right to Vote in what is, in essence, the very same political process (one determining a political Party's nominee for President) is not equal between voters in different States- as it is here not at all equal- then that is the very epitome of unfairness"; the problem is: the only way to completely eliminate this "unfairness" is to have every voter participating in the presidential nominating process voting on the very same day- which is, by the way, the very same way we Americans nowadays "appoint" (to here use the constitutional language) Presidential Electors through our voting for President and Vice-President on the first Tuesday next after the first Monday in November every fourth year.

But the political Parties have no vested interest in enforcing a same day, across the Nation, "all-up" Presidential Primary- whether this be a direct nomination Primary, akin to how candidates for the U.S. Senate and Governor's chairs, seats in the U.S. House of Representatives and in State legislatures, and other "down-ballot" elective offices are usually nominated already, or the pledging of delegates to a Party's National Convention to contenders for a Party's presidential nomination (indeed, the Parties are not sovereign, as I've said: therefore, how could they even enforce this?); meanwhile, the States are, seemingly, unwilling to enforce such a system on their own (every time a State other than New Hampshire might move up its Presidential Primary "too early", New Hampshire will simply move its Primary to the head of the line by virtue of its "7 days before a similar election" statute [put aside unfair, where not also potentially unconstitutional, "death penalties" imposed by an unelected national Party elite not at all responsible- let alone responsive- to the general electorate: that is, "We, the People" as voters, as opposed to those who are their own Party members]); and Congress, for reasons I pretty well outlined in both Parts One and Three of my most recent series of Commentaries, can't enforce it: therefore, we're stuck (absent, again, a Constitutional Amendment which might change this) with the current situation- States, yes, holding their Presidential Primaries whenever they damn well please.

In the end, then, there is actually no need to reconcile what you have termed "these two conflicting views" of mine. Nothing can be done, constitutionally, about what I stated as regards the first of these views and the second of these views is merely the current constitutional reality: therefore, there is no conflict between them!

So, what about your rhetorical question to the effect that "wouldn't all this mean that the Right to Vote of those who voted in Florida and Michigan this past January would then be treated- wrongly (accepting your own viewpoint here, if only for sake of the argument)-as just as superior to the Right to Vote of the voters who voted in all the States which held Presidential Primaries on what you call 'Super Duper' Tuesday [February 5th] and even later as the Right to Vote of the voters who voted in New Hampshire's Presidential Primaries is, both in relation to all these later-voting States as well as to Florida and Michigan?"

Answer: Yes, it does mean just that-- but, as I have just pointed out, there is nothing that- absent the collective will of the American People to improve the presidential nominating process via Constitutional Amendment- can be done about this.

Any State that holds its Presidential Primaries (or Caucuses) before another State is, in effect, affirmatively claiming that the Right to Vote of its own voters is, by definition, superior to the Right to Vote of the voters of any other State that might hold its own Presidential Primaries (or Caucuses) later.

The official position of the State of New Hampshire, when we peruse the schedule of the 2008 presidential nominating process, is that the Right to Vote of the voters of the State of New Hampshire is inherently superior to the Right to Vote of the voters of my own State of New Jersey, because the voters in New Hampshire got to participate in that process back on 8 January, but the voters in my State (including me) had to wait (and, by the way, wait by edict of national political Parties, not by act of any responsible sovereign government responsive to ordinary popular opinion) until 5 February before doing the same.

Put another way: New Hampshire's self-proclaimed legal and constitutional position (and, therefore, one for which- as a sovereign State- it has to take fullest responsibility) is that- at least as regards the choice of the nominees for President (and, ultimately, Vice-President) this time round- the United States citizenship of any voter in the Granite State is worth more- hence, more valued- than my own United States citizenship, simply because I happen to reside in the State of New Jersey. The only comfort I can possibly derive from this predicament is that my own State has equally affirmatively declared that the Right to Vote (and, with it, the relative worth of associated American citizenship) of those on the other side of the Delaware River- I believe they call themselves "Pennsylvanians"- is inherently inferior to my own, as well as that of all my fellow New Jerseyans, since no Pennsylvanian has yet to participate in the presidential nominating process even as I type this! (Just kidding to make my point here, Pennsylvania-- please don't actually send me all those angry e-mails you are now writing!!)

But, again, unless and until the political Parties voluntarily agree to allow the delegates to their respective National Conventions to all be chosen on the same day (not at all likely!-- and, even if it were, what's there to stop any State from deciding, on its own, not to follow this, given the logic of my own argument that the States, as sovereign, can set whatever Presidential Primary or Caucus dates they might prefer?) or all the States of this Union so agree (just as unlikely, since there is no congressional oversight that can rein in a State that, likewise, might violate any such "gentleman's agreement") or a Constitutional Amendment that either specifically allows Congress to so oversee the presidential nominating process or even actually mandates a National Presidential Primary, this is the way it actually is, whether or not it really is the way it should be!

Having said all this, however, how unfairly the political Parties are- or are not- treating States that have, or so the Parties themselves have determined, violated the Presidential Primary/Caucus scheduling "rules" set up by said Parties is a whole other matter, having little- if anything- directly to do with what I have just written. For, if a State is, indeed, able- by virtue of its political sovereignty- to hold its Presidential Primary or Caucus whenever it might like (and I say it can), a non-sovereign political Party should have no legal method through which to at all thwart this. The Rule of Law, after all, is The Rule of Law: sovereign governments make Law, while political Parties can only make rules for itself internally, and public Law ever trumps the rules of a merely voluntary organization- or, at least, ever should (for a "Government of Parties and not of Law" is equally as onerous to general Liberty as a "Government not of Law, but of individuals").

Besides, the political Parties, as institutions, agreed long ago to nominate their respective candidates for President and Vice-President via the means of a National Convention as an improvement- certainly one more cognizant of the political will of the Common Man that was the principal beneficiary of what we look back upon as the so-called "Jacksonian Revolution"- over the old Congressional Caucus (the members of both houses of Congress from each Party meeting as a closed conclave to nominate candidates) or separate nominations by Party members serving in State legislatures (which only led to different contenders being "nominated" as presidential candidates of the same Party, this further leading to concomitant potential chaos when it came to the votes later cast by that Party's Presidential Electors [State legislative nomination was, in fact, directly responsible for the 1824 Presidential Election being decided by the U.S. House of Representatives; twelve years later, the very same thing would end up splitting the Whig Party Electoral Vote among four different candidates]). For decades thereafter, the Parties let their State branches, ever subject to State regulation and oversight (which became more prevalent as the 19th Century wore on), determine how best to choose National Convention delegates: it was the States- not the Parties themselves- that first implemented the Primary system of nomination by Law and then- soon after the 20th Century had dawned- began to apply various kinds of Primaries to the choosing, and eventually the pledging, of National Convention delegates.

For decades more, no national Party controlled the schedule of such Presidential Primaries (nor, for that matter, the Caucuses and higher-tier Conventions in those States [actually, most States until the mid-1970s] that continued to use them). When a Presidential Primary or Caucus might be held was solely at the discretion of State law or, where the State either allowed it or the Law was silent, the State Parties (not the national Party leadership). New Hampshire held its first Presidential Primaries in 1916 on its annual Town Meeting Day- the second Tuesday in March (since it made so much sense to hold the Presidential Primaries when its eligible voting citizenry was going to be coming into town in any event); when it did so, it was not even the very first Presidential Primary that particular year (instead, that honor belonged to Indiana- on Tuesday 7 March, exactly a week earlier): indeed, New Hampshire's was also not the only Presidential Primary held on Tuesday 14 March 1916- it (willingly, too!) shared that date with Minnesota (which was holding its Presidential Primary that day for the exact same reason the Granite State did: the second Tuesday in March was Township Meeting Day in the Land of 10,000 Lakes). So much for New Hampshire's first-in-the-Nation "tradition"!

And no one even made a 'boo' (not even in the Granite State itself)! Least of all the national political Party organizations.

So long as the delegates- by whatever method they might have been chosen- were selected before the National Conventions gaveled themselves to order come Summer (and, back in 1916, "Summer" meant June!- for nobody wanted to hold a mass political meeting in a large, enclosed hall in, say, August back in an era without modern air conditioning!), the leadership of the Parties didn't much care as to when they actually had been so chosen. The demands, by the national leadership of political Parties, of control as to when States can hold Presidential Primaries or Caucuses is, thus, a comparatively recent phenomenon.

It might even have been a most welcome phenomenon, but for one thing: the blatant favoritism shown by the Parties towards certain States at the expense of others-- and for what?

To make sure that the "wrong" candidate isn't nominated, that's what!

Theoretically, Americans should be free to vote for whomever they might want to be their leaders (if we're talking about Executive branch elective office) and representatives (where Legislative branch elective office is concerned). At the State and local level, the Primary system of nominating Party candidates allows pretty much just that: no, it's not perfect- indeed, far from it! (one can always argue at least relatively minor issues of ballot access, for instance, as well as access to a Primary ballot itself)- but the Primary serves to eliminate contenders who do not have widespread support among the Primary voters and whomever emerges as the victor in the Primary (whether or not the State allows for a Runoff in those cases where no candidate receives a majority or some other high plurality threshold) is, in fact, the Party's nominee for the office in question and the State, County or even more local Party leadership always has to live with it (even if the nominee not be "their guy") come the November election-- for the voters have spoken in the Primary election and they will speak, once again, in the ensuing General.

Not so when it comes to the Presidency, however: here, the Parties have so set things up so that the 'bell curve' average American voter doesn't as much get his or her way when it comes to who a Party's standard-bearer might turn out to be. Let's say that, going into the Primary/Caucus "season", there are 10 serious contenders for a Major Party's nomination for President: 2 are generally in the political middle of the Party of the day (this, of course, is not to say these same contenders are necessarily in the dead Center of the electorate as a whole!- they may, in fact, be either to the left or the right of the middle of all of political America [perhaps even well right or left of same!]- but they are, more or less, in the dead center of their own Party); another 4 contenders are on either side of the "middle 2" (2 of these 4 more to the left of the "middle 2", the remaining 2 more to the "middle 2"'s right- indeed, depending on how far to the left or right of Center the Major Party itself might be, some of these may actually be closer to- if not actually in- the Center of all of political America, even though not in their own Party's center); and the final 4 contenders are the "extremists"- far left or right of the Party's own center, let alone the Center of the entire American electorate.

In theory, any of these 10 should be on the "plate" of the American voter freely willing to participate in the particular Party's presidential nomination process- but, of course, if this theory were actually to be carried out in practice, someone too far to the right or to the left (as so defined by the Party's leadership) might well become the Party's nominee for President and, if so, the Party may- horrors!- lose the Presidential Election (let alone a possible concomitant "ripple effect" as regards the Party's chances down the ballot). So, the presidential nomination process isn't so much rigged as it is "gamed": the American voter is the one sitting in front of the Roulette wheel, the Party is the "casino" and things are set up so that the "house" rarely- if ever- has to pay out.

In the old days, the process was gamed by political organization control- where necessary- of the Caucus/Convention delegate selection system and the "kingmaking" inside many a proverbial "smoke-filled room". For instance, in the very pre-Convention campaign that would give us the term "smoke-filled room"- that of 1920 on the Republican side- the eventual nominee (and eventual President) Warren Harding only won one Presidential Primary- that of his home State of Ohio (he would, thereafter, do rather badly next door in Indiana): no matter, though- for there were but 20 such Primaries (a high-water mark for the device, by the way, until 1972's 23 Presidential Primaries) and the "kingmakers" ended up making him "king" anyway.

But the McGovern-Fraser reforms that changed the Democratic Party going into 1972 so obviously threatened this type of gamesmanship and, with post-"Watergate scandal" Democratic-controlled State legislatures adopting necessary enabling legislation related to these reforms through the 1970s and on into the early 1980s, the Republicans were brought along for the ride, too (though never to the extent that the Democrats brought themselves). Proportional Presidential Primaries- even with a threshold of 15% of the vote in order to gain delegates- brought his Party's nomination (along with, so it turned out, the Presidency itself) to Jimmy Carter (clearly, the Democratic leadership of the time did not have Carter at the very top of their early "nomination wish list"); four years later, they allowed Ted Kennedy to so strongly challenge an incumbent President Carter within the Party (which begat the Unpledged PLEO Democratic "superdelegate").

So how do you game the system now?:

Simple, under the guise of "retail politics", you schedule certain States (hopefully, those small enough to be politically manageable [and which you can then sell as being small enough so that just about everyone living there can shake hands, if nothing else, with at least one bona fide presidential contender] but also small enough so as to not cause too much damage to the whole presidential nominating process if things go "wrong"- that is, the voters end up giving the most voters to a contender the Party hierarchy finds particularly onerous [because the State has relatively few delegates (say, a New Hampshire) or doesn't even actually pledge delegates until almost the very end of the process (as in Iowa), there is still plenty of time to "nip this in the bud"]) earlier than any other State. Those who lead both Major Parties well know that, with Iowa holding Caucuses first and New Hampshire's Primaries following a week later, at least half the field of presidential contenders going into Iowa will be out of the race soon after New Hampshire; they also know that someone who might have just been "winnowed in" (to use the Fred Harris formulation from 1976) in Iowa will, most likely, only end up winnowed out come New Hampshire. And this always allows only, at most, a relative handful of presidential contenders to be available for serious consideration by most voters in all future Primaries and Caucuses in both Parties.

You want choice? You can't handle choice! ;-)

This is all hardly an accident.

And this is the real reason Florida and Michigan are being punished by the Democratic National Committee: the Democratic Party wants to make it quite clear that it will not at all tolerate States jiggering the schedule (unless, of course, it's jiggering by a State the Party wants to have go first, then the Party simply "looks the other way"- as it already has with New Hampshire and South Carolina) while, for the reasons I gave in my most recent series of Commentaries, States of this Union have every constitutional power to so "jigger the schedule". (Don't like it? Then fix it-- but fix it constitutionally! [The same answer, by the way, I would give to the Bush Administration when it comes to warrantless wiretaps: you want to protect the country from terrorist attack? Fine-- but then do so according to the Constitution!])

Control over the schedule of Presidential Primaries and Caucuses, after all, is the very thing that, nowadays, allows the Major Parties to better manipulate the outcome of the presidential nomination contests on behalf of this generation's "kingmakers", the major difference now being that a "smoke-filled room", unlike back in 1920, would be regarded as most unhealthy [;-)]. The Party is really not all that worried about this year's "jiggering", for it's now too late to put that "genie" back in its "bottle"! (Instead, the current headaches for the Democratic Party are how not to let its rigid enforcement of the rules come back to bite the Party's nominee- whoever it might be- in either Florida or Michigan this coming November and how to make sure the "superdelegates" don't vote in such a way that someone harder to elect gets nominated but, at the same time, without so forcefully reversing the ultimate decision of those who voted in Democratic Primaries and Caucuses as reflected in the final pledged delegate count.) No, this one is now all about future "jiggering": the Party doesn't want Florida and Michigan making their own Primary schedules to become a harbinger of even more such "unruly" behavior re: 2012-- and 2016-- and 2020...

If those running an organization that will be hosting a National Convention of Shoe Salesmen want to have such complete, unfettered, unregulated power over who can attend its own Convention, along with the process through which those who wish to attend can get their credentials to so attend, I personally couldn't care much less than I do right now. After all, I'm not a shoe salesman and, in the end, the fact that a style of shoe might be more prevalent in one part of the country than another doesn't alone determine how the Nation's economy as a whole functions, nor is it going to decide who might be appointed to the U.S. Supreme Court that might make a ruling that might, in turn, have a major affect on me personally in my position as a citizen of the United States as well as of the State of New Jersey. Indeed, if the organization overseeing the credentials of those attending the Shoe Salesman Convention wants to game things in such a way so that styles of shoes prevalent in one part of the country or made by a select few shoe manufacturers or sold in a select few chain stores (to the detriment of other styles of shoes or other shoemakers or other stores selling shoes), that is not really my problem, is it?

But it is my problem if we're, instead, talking about a political Party's National Convention that is determining, ahead of time, one of the persons from whom I- an American citizen and registered voter- will be able to choose the next President of the United States this coming November. If you want to maintain a system in which there are usually only two most likely choices for President come the General Election (with all due apologies to the 2008 presidential nominees- some already determined, others yet to be chosen- of Third Parties and any Independent presidential candidates, none of you have yet convinced me that you are going to end up ahead of either of the nominees- whether already known or not- of the two Major Parties in the 2008 Electoral Vote), then the means and methods by which these two end up in that position has to be fair to all who participate in the presidential nomination process, not just a mere few.

At any rate, this all has rather little to do with preserving something called "retail politics": after all, we- or so we've been told (as usual!)- had "retail politics" on the Democratic side in both Iowa and New Hampshire, despite Florida and Michigan bucking the schedule in a way the Party so clearly dislikes. So, tell me, just how much less of a "TV sound bite/who has the most effective negative campaign ad"-driven circus has the Clinton/Obama contest been since going into South Carolina's Democratic Presidential Primary back on 26 January?

In short, I do believe that the States have the sole power to determine their own Presidential Primary dates without the input of the political Parties. It's just that I wish there were some way to rein both the States and the Parties in and even out the influence that the Primary voter or Caucus participant in one State has in relation to the same in another State so that everyone gets a fair chance to express their presidential preference while having a real, the fullest, choice from among all contenders for a Party's presidential nomination--

but such a way does not, constitutionally, exist and it's a rather large "hole" that the Framers, however inadvertently, left in the overall fabric of the Federal Constitution.