The movement to reform New York’s election system passed a milestone on December 6, though not the one you might have heard about in the news. On the same day state Attorney General Eric Schneiderman issued his scathing report on April’s presidential primaries, in a packed downtown courtroom, state and New York City attorneys defended the constitutionality of closed primaries against plaintiff Mark Moody -- one of the three million independent New Yorkers, including Ivanka and Eric Trump, who could not vote in April.
If anyone in the courtroom needed to understand what’s wrong with closed partisan primaries, listening to Judge Engoron’s speech in defense of them should have made it clear. Having rehashed the defense’s legal argument, the judge cited a “precedent” from his own life: his membership in a youth sports club. The question the judge pondered was this: If the club decided that he had to run naked around the block, would he have to do it? The answer was thankfully “no”... as long as he quit the club. A club’s business is its own business. So is a political party’s.
But before we close this case, let us ponder a few questions about the judge’s club. Did it put candidates into public offices that held power over millions of people far beyond the club’s membership? Was it the only club with the ability to do so for tens of miles around? Did people gaining power thanks to the club write rules for other clubs so as to push them out of competition for members and power? Did his club use taxpayer money to run its “internal” elections, as our dominant political parties do in their closed primaries? Add to this a party’s alliances with business interests and wealthy donors -- not all of them entirely savory -- and you get a club that can order anyone for miles around, member or not, to run naked around a block, a state, or any jurisdiction within its domain. The victim would have no choice but to comply.
The judge said as a matter of fact that parties stood for something. One wonders if he heard of Democrats walking out of their convention with tape over their mouths, Republicans rejecting all party stalwarts in their presidential primaries, or independents doubting if our parties stand for anything at all, but their bosses’ interests.
The judge also stated that most people knew that they had to register with a party in order to vote in a primary. I do not know how things stand in the judge’s neighborhood, but in mine the most likely response to a mention of primaries is the question, “what is a primary?” The abysmal state of our civic education ensures that multitudes of citizens have barely a clue of how elections work or what a party affiliation means, let alone know that they have to straighten out their political alliances six months ahead of a primary and stick with them for a year. One wonders why this test of members’ loyalty to a party does not apply the other way around. It is ironic that the judge and the defense were arguing that the six-month deadline was not a severe burden for voters on the same day as the state attorney general proposed to shorten it to 25 days and to eliminate the year-long commitment.
No argument against open primaries is complete without summoning the fearful ghost of “party raiding” - the practice of party switchers sabotaging another party’s nomination. Being caught short on credible evidence, the judge had to read Wikipedia off his laptop for the courtroom. Too sad he did not attempt to consider the interests of a “raided” party against the interests of disenfranchised voters. Perhaps in the world where a party is taken for granted to stand for “something,” a dominant party’s interests are assumed to be the same as the interests of all citizens, somewhat in the spirit of the Soviet government’s favorite slogan that “the people and the party are one.”
Judge Engoron‘s amicable attitude and Groucho Marx quotes may have taken some sting out of his verdict. He even facetiously suggested to decide the case by voting right there in the courtroom. This was not a bad idea for a courtroom simulation. Here is how it could play out. The people in the room would hold an election to choose an individual who would decide whether and how to reform primaries. The reform-minded majority and the conservative minority would form their parties and hold closed primaries, while the independents, including the judge, would have voted only in the general election.
The question for the judge to ponder would then be this: How much weight would his vote carry in the outcome? The answer would of course be “none.” The only choice of consequence would be made in the majority’s closed primary. The minority and the independents would only have to pray that the winner would not make anybody run naked.
In fairness to the defense, one of its lawyers hinted at what many in the room probably knew: the issue would be better handled by the legislature, not the court. The latter, however, may give supporters of open primaries a chance for publicity, provided the media does its job covering what matters to voters. The New York Post is already trying to do that. Considering that Mr. Moody is likely to appeal his case, which among other things calls for a subpoena to the Trump children, the media may still do the right thing, if only for the privilege of covering the Trumps.