When it comes to repairing Louisiana’s broken electoral system, ineffective half-measures won’t cut it.
That will come as bad news to Republican state Rep. Barry Ivey and his HB 557. The bill seeks to finesse its way around Foster v. Love, the 1997 U.S. Supreme Court decision that makes the state hold its general election for federal offices on the first Tuesday after the first Monday in November of even-numbered years, which federal law establishes.
The congressmen the state sends to Washington complain that, particularly when an open seat gets filled, this causes a delay in the scramble for committee assignments and, for new members, playing catch-up and orientation and staff hiring. This situation occurs as the state’s majority election rule can force a runoff between the top two candidates in the general election that masquerades as the blanket primary, requiring an election five weeks later.
Foster v. Love triggers this construction. The Court defined the state’s nonpartisan blanket primary election, where candidates regardless of party run together, as a general election since its outcome (if a candidate secures at least half plus one of the vote or only one candidate has qualified by the day of the election) can occur prior to the federal election day. The Court noted this subverts federal law, in that “a contested selection of candidates for a congressional office that is concluded as a matter of law before the federal election day, with no act in law or in fact to take place on the date chosen by Congress, clearly violates” this.
HB 557 tries to sidestep this straitjacket by separating temporally when someone “is elected” from a new legal concept of when someone “is declared” the victor, where under present statute the latter occurs automatically with the former. At present, the law states you are elected when determined (after official tabulation and sorting through any contesting of that) you have half plus one of the total legal votes cast. The bill would add that you must be “declared” the winner, which can happen no earlier than one the first Tuesday after the first Monday in November, in essence creating an artificial “act in law or in fact to take place on the date chosen by Congress.”
In the 1997 decision, the Court chided Louisiana for trying to argue the blanket primary as a process concluding on the federal election date as dealing in “wordplay,” and chances are it would do it again under this formulation. Especially as the Court gave great deference to congressional intent in its establishment of the date in 1872, as a means to prevent early elections from influencing later ones by making them all potentially resolve at the same time and no earlier.
No matter how HB 557 tries to slice it, a winner theoretically can emerge from an election held weeks before the federal date, which violates exactly the thing Congress wished to keep sacred. And to avoid this, the state can’t just sit on the results until Nov. 2-8, because a runoff may have to happen on these dates. No; unless the Court decides to chuck precedent on this, HB 557 in present form is unconstitutional.
Speaking to the House and Governmental Affairs Committee when it vetted the bill earlier this week, Republican Sec. of State Kyle Ardoin glossed over these details but perhaps betrayed unease at the bill’s constitutional precariousness. That’s because he brought up as an alternative the California “top-two” primary, which works essentially the same as Louisiana’s system except that, as long as an office is contested, the top two (even if they are the only two) candidates in the primary advance to the general election, no matter the distribution of votes.
Because it guarantees polling on the first Tuesday after the first Monday in November with the winner of that duly elected, it passes constitutional muster. Yet by guaranteeing this, it also increases election costs, which supposedly lay behind adopting the blanket primary.
If the overriding concern is the potential tardiness faced by Louisiana members of Congress, unless settling for the gamesmanship and extra costs of the top-two system, creation of a closed primary, where only voters affiliated with a party can vote in its primary, would work best. Yet the same panel scuttled that idea as contained in SB 221 by GOP state Sen. Sharon Hewitt over concerns it could become a gateway to its use for state and local elections and too many elected officials owe their current positions to an ability to downplay issues while elevating personality, which intra-party primaries would discourage.
But if you exclude closed and top-two (or even open primaries – where candidates run by party but any voter may participate in only one party’s primary) as solutions to the date problem, HB 557 isn’t going to fill the gap. In any event, it only masks the larger problem of a system less responsive to the public because it obscures transparency helpful to matching the majority’s issue preferences to those of politicians who use the system to their electoral advantage.