The 2016 primaries have been fraught with controversy. Stories of purging, voter confusion, registration swaps, and lawsuits against state officials and practices have been popping up across the nation. If democracy functions best when the most people participate, then democracy during the 2016 primary season suffered.
While many of the lawsuits derive from inter-party competition between Republicans and Democrats, it is ultimately voters receiving the short end of the stick.
Let’s take a cursory look at primary lawsuits as they came up this year.
Demos and ACLU File Suit Against Voter Purging in Ohio
Ohio election law removes people from registration rolls who do not vote in three successive federal elections - or are “too inactive.” This practice is the basis for an Ohio lawsuit, filed on April 6, which calls this practice illegal purging.
Demos and the ACLU of Ohio sued Secretary of State Jon Husted, arguing that the removal of eligible voters violates the National Voter Registration Act of 1993 or “Motor Voter” law. The law allows states to remove voters if they move out of state, die, or request the removal. The plaintiffs found evidence that black and Hispanic voters were disproportionately removed from voter rolls.
Secretary of State Husted said that if voting was that important then individuals “probably would have done so within a six-year period,” and that most of the voters removed were dead or had moved out of state.
Nonetheless, voters were outraged to find they were removed from voter registration rolls and unable to vote in the presidential primary.
Arizona Voter Files Suit Over Lack of Polling Locations
Arizona’s primary received national attention for cutting the number of polling locations to save money from 200 to 60 locations, meaning a 70% decrease in polling locations. In fact, voters were still standing in line when the results were announced, even though hundreds of voters had yet to cast their ballot.
Furthermore, voters who were not registered in the Republican, Democratic, or Green parties were barred from voting in the primary. Reports found that as many as 1.2 million Arizonans were unable to vote for presidential candidates due to being registered independent, American Independent, or Peace & Freedom.
On April 8, a Tucson voter filed a lawsuit claiming officials improperly handled voter registration and did not provide an adequate number of polling locations. The case was submitted with the purpose of invalidating Arizona’s primary results, and was tossed out of Maricopa County Superior Court on April 26. The judge found there was not enough evidence to bring the case to a full trial.
Officials did take responsibility, claiming polling locations were reduced based on past primary turnout. However, taking the responsibility for these problems does not ensure poll locations and closed primary issues will be solved, which still leaves many voters without the chance to participate.
New York Lawsuits Contest Primary Results and Constitutionality of Closed Primaries
The registration deadline for New Yorkers was October 14, 2015 - nearly a year in advance of the elections. Before any debate was held, or even before all the candidates were declared, New York voters had to be registered with the party they could only hope would represent them.
On election day, voters found themselves turned away from the polls due to being registered in the wrong party. The closed primary in New York meant voters could only vote on the ballot for the party they were registered with.
Election Justice USA filed a lawsuit the day before the New York primary seeking to re-register those who found themselves unregistered or registered in the the wrong party, some even claiming that their signatures were forged on registration forms.
The lawsuit includes at least 200 people claiming their party affiliation was tampered with, and was an emergency case designed to question the soon-to-be results of the primary, and to ensure counting of provisional and affidavit ballots.
The case was initially heard on primary day, April 19. The court set a later date for the hearing and recommended listing every county as plaintiffs. The New York Board of Elections said they were not responsible for the problems the voters experienced.
Fortunately, the court allowed voters to contest their ballots in court and encouraged incorrectly registered voters to vote on a provisional ballot. While voters were given this consolation, the delay of the case prevented more votes from being counted.
A second lawsuit in New York, filed by attorney Mark Moody 10 days after the first lawsuit, also sought to refute the primary’s results. It also questioned the constitutionality of the state’s closed primary. In the ruling issued May 2, Manhattan Justice Arthur Engoron allowed the primary results to be certified, saying he was “concerned that a ruling in [Moody’s] favor will denigrate the associational rights of the political parties and their members.”
However, Justice Engoron stated that “the Court has an open mind as to whether petitioner might ultimately prevail,” implying Moody’s claim against the closed primary might have merit. Justice Engoron also said, "so-called suppression measures, common around the country, have no place in a true democracy."
Though Engoron’s statement appears to support Moody’s claim that New York’s primary is unconstitutional, he did not award voters with a recount or reevaluation of ballots and provisionals.
California Lawsuit Argues Voter Registration Rules Confuse Voters
On the west coast, a lawsuit purported that widespread registration confusion in the presidential primary hindered voters from being able to vote properly. Interestingly, this is only a problem at the presidential level because California’s top-two nonpartisan primary allows all voters, regardless of party affiliation the chance to participate in statewide races.
Yet, California’s presidential primary is still dictated by the parties. Presidential candidates are only listed on their party’s ballots, and voters had to be registered in those parties by May 23.
To complicate matters further, the Democratic, American Independent Party, and Libertarian parties allowed independent or “no party preference” voters to request a “crossover” ballot, and vote on their presidential candidates. These parties had a “semi-closed” primary. The Republican, Peace & Freedom, and Green parties had “closed” primaries, allowing only party registered voters to cast a ballot on those candidates.
The lawsuit argued these registration details were too confusing for voters, and that the registration deadline should be the same day as the primary. A federal judge set the hearing for August 18, so if any changes are implemented they will take effect in the next presidential primary in 2020. Voters may have benefited from moving the registration deadline, but we’ll never know how it may have changed the results or helped voters to vote.
While many lawsuits did not gain legal traction, by questioning the practices and results of primaries, they contribute to the larger discussion on how primaries are run and how they serve (or do not serve) the voter.
Photo credit: Michael Chow