All the momentum in the 2020 Democratic presidential race appears to be behind US Senator Bernie Sanders after another victory in Nevada over the weekend. Now, headed into the most consequential Super Tuesday in modern history, Sanders may be on track to secure the Democratic nomination early.

Super Tuesday, however, will also highlight the deep systemic problems in our electoral process -- problems that leave millions of voters disenfranchised and voiceless. Here is what you need to know just days before the biggest primary election day (literally) in the 2020 presidential election cycle.

Sanders Criticizes California for Disenfranchising Millions of Independent Voters 

Super Tuesday is always considered the most consequential primary day during a presidential election cycle due to the large number of delegates that are up for grabs. However, the most significant change in 2020 is the addition of California. Over a third of the 1,341 delegates at stake on Tuesday, March 3, will be awarded in the Golden State -- meaning a momentous sweep could help all but seal the Democratic nomination for Bernie Sanders, or any other candidate who might dominate the delegate count.

The California primary, however, was plagued by widespread (and well-documented) voter confusion in 2016 due to the state’s semi-closed primary rules. To quickly recap, semi-closed primary rules mean the parties can decide if independent voters (registered No Party Preference, or NPP, in California) can request a crossover ballot for their party. It also means a voter registered with a party cannot vote in another party’s primary.

The challenge many voters ran into in 2016 was navigating this system, especially in the wake of massive growth in NPP registration. NPP voters who wanted to vote in the Republican primary, for instance, couldn’t. Minor party voters who wanted to vote for a major party candidate couldn’t. Further, though the Democratic Party allowed NPP voters to request a crossover ballot, there was an astronomical gap between NPP voters who said they intended to vote in the Democratic presidential primary, and the number of crossover ballots cast. 

NPP voters were largely baffled, frustrated, and angry over how the presidential primary was conducted, and many voters ended up receiving ballots with no presidential candidates at all.

Get the Facts: 10 Things You Need to Know about California’s Presidential Primary

Looking ahead to Super Tuesday, Sanders criticized the NPP participation rules, which he says “risk locking out millions of young people … millions of young people of color — and many, many other people who wanted to participate in the Democratic primary but may find it impossible for them to do so.”

He is not wrong. A registration report dated January 3 showed that over 5.2 million voters were registered NPP. These voters face the exact same challenges independent Californians faced in 2016 as they try to participate in a system that tells them that if they are not registered with a political party they are not guaranteed the right to vote.

However, this doesn't mean there isn't hope for future elections.

Sanders’ comments were made not long after a new bill was introduced in the California Legislature to guarantee all voters the right to vote for the presidential candidate of their choice. The bill, AB 2207, requires the California secretary of state to add a public presidential primary ballot that would include all candidates “actively seeking nomination to the office of President of the United States.”

The bill requires that NPP voters receive this ballot automatically unless they request a party’s crossover ballot. Further, it also allows registered party members to request a public presidential primary ballot if they do not want to vote on their party’s ballot. However, it does not alter the party ballots at all:

“The law and common sense are both clear. Let the political parties keep their own ballots. Let the parties exclude or include whoever they want. Let the parties decide their own rules of nomination. But give every voter their fundamental right to participate at every stage of the taxpayer-funded public election process,” said Independent Voter Project (IVP) Chair Dan Howle.

Read the bill here.

AB 2207 is a remedy to IVP’s 2019 lawsuit which was brought after the secretary of state and the California Legislature failed to act on an issue the organization first raised in 2015. IVP offered multiple remedies, including legislation and constitutional resolutions, and garnered the support of county registrars and multiple reform groups.

AB 2207 is supported by IVP and the National Association of Nonpartisan Reformers, which represents more than 30 pro-voter reform organizations across the country.

Political Science Professor Argues Partisan Elites Need MORE Control over Elections

It has become apparent to more voters that the current electoral system does not have their best interests at heart. Americans are increasingly becoming dissatisfied with a political process that at every institutional level is controlled by two private political corporations -- the Republican and Democratic Parties.

This is evident in polling. This is evident by the growing efforts to reform elections at every level. This is evident by studies conducted by influential business minds and even researchers in physics.

So, it is baffling when an associate professor of political science pens an op-ed titled, “It’s time to switch to preference primaries,” and argues that we need a nomination process that better serves the partisan elites.

The author of the aforementioned op-ed, Julia Azari, starts off the op-ed well:

“The current process is clearly flawed, but what would be better? Finding an answer means thinking about the purpose of presidential nominations, and about how the existing system falls short. It will require swimming against the tide of how we’ve thought about nominations for decades…”

She is right. The process is flawed. Finding an answer means thinking about how the system falls short -- how it fails voters. It requires pro-voter reformers who are willing to swim against the tide. But then Azari immediately starts swimming with the tide by suggesting that partisan elites need more power to pick the presidential nominees.

From the title, this Washington Post op-ed gets the presidential nomination process completely wrong, because all presidential primaries and caucuses ARE in fact preference elections. The parties have successfully argued this in court. 

In 2017, the DNC argued in federal court that it does not need to follow its own rules. The party argued that if the results of a primary don’t fall in line with the party’s interests, the party reserves the right to pick its nominee in the smoke-filled backrooms of old.

It is even written in the party rules. In California, for instance, Section 1.04(A) of the Republican bylaws states: 

“With respect to matters of party governance and, to the extent provided for herein, the selection of nominees and Presidential electors, these bylaws shall govern and take precedence over the California Elections Code or other law to the contrary. The Committee retains the right and prerogative of association to recognize and determine for itself the ways and means of nominating persons as nominees for partisan elective offices.”

At the national level, the Democratic bylaws read: “The Democratic Party shall not require a delegate to a Party convention or caucus to cast a vote contrary to his or her expressed preference.” (Article IX, Section 10)

These bylaws and rules govern the entire presidential election process, and they can be changed as easily as the DNC changed the debate rules to allow Michael Bloomberg to participate in Nevada and South Carolina. 

Does this sound like the partisan elites don’t have enough power? Or that these partisan elites, as Azari argues, would ultimately produce a candidate that would serve the voters’ best interests?

It is a paradoxical notion, to say the least, that voters should not be entrusted with their own interests. Instead, we should put all of our faith in the parties that gave us the two most unpopular presidential nominees in modern US history in 2016.

The public outcry following the last presidential election was for less control by partisan elites who worked behind the scenes to marginalize a popular grassroots candidate -- Bernie Sanders -- at every level of the process. The DNC responded with a number of changes, including reducing the number of unpledged delegates (aka superdelegates) and barring their participation in the first round of voting for the presidential nomination at the party convention.

However, it didn’t take long during the 2020 election cycle for partisan elites to float changing the rules again in order to stop Bernie Sanders from getting the nomination. And if the party's leadership deems it in their best interest, they can do it because the power over the nomination rests not with the voters, but with the party.

Clearly, the problem isn’t that the elites don’t have enough power. They can change the rules whenever they want -- whenever they get nervous or panic. The problem is they have too much control over the process.

Could Presidential Debates Look Different This Fall?

The rules that govern US elections were not set up by a neutral government board or body. They were set up by the Republican and Democratic Parties, not to promote fair competition or advance choice, but to ensure a political advantage. 

As former Gehl Foods CEO Katherine Gehl puts it, the political industry “is the only industry where people are told competition is bad for the consumer.” 

One critical cog to this anti-competitive electoral machine is the Commission on Presidential Debates (CPD), which has stacked the deck so high for third party or independent candidates that it is impossible for even a third candidate to qualify for the debate stage. However, an ongoing lawsuit challenging the debate commission’s rules could significantly change the competitive landscape of 2020 and future presidential elections.

The DC Circuit of the US Court of Appeals heard oral arguments in Level the Playing Field, et al v. FEC on Monday, February 24 --a lawsuit Level the Playing Field originally filed in 2015 along with CEO Peter Ackerman, and the national Green and Libertarian Parties. The lawsuit asserts that the debate commission's directors have violated federal law that requires the CPD to be "nonpartisan" and use "objective criteria" to appear on the presidential debate stage.

Level the Playing Field cites extensive evidence that the Commission on Presidential Debates is in fact a partnership between the Republican and Democratic Parties and have adopted rules that endorse the major party nominees while excluding everyone else from the debates. To quickly recap, the CPD's rules for debate entry say candidates must:

• Be qualified to run for president;
• Be ballot qualified in enough states to achieve an electoral majority; and
• Poll at 15% in 5 national polls handpicked by the debate commission.

The plaintiffs argue that the last criterion is one that only the Republican and Democratic Parties can reasonably achieve in the current US political landscape, and thus the debate commission illegally excludes third party and independent candidates.

Third party and independent candidates are ignored by the media, their names are buried by pollsters, and they must spend all their resources just to obtain and keep ballot access. Meanwhile, the cost to buy the necessary media time and online ads to build the name ID needed to get to 15% in the polls would be in the hundreds of millions of dollars. It is a steep mountain to climb, especially when these candidates have been anchored to such a large boulder.

"The CPD is a partisan organization designed to ensure that every four years no candidate unaligned with either major party can compete for the presidency, and if you can't get into the debates, you can't win. This is reason that great Americans will not run for president as Independents, to the detriment of all Americans," Level the Playing Field CEO Peter Ackerman has said.

It is a fact that the debate commission was created as a partnership between the national Republican and Democratic Parties. It is a fact that many of its directors today have political and/or financial ties to the major parties. One of its current co-chairs is even a former chair of the Republican Party.

In February 2017, US District Court Judge Tanya Chutkan ruled that the FEC had “acted arbitrarily and capriciously and contrary to law” in its response to complaints against the debate commission. The FEC was ordered to give a thorough review of the debate commission's structure and its rules, but again, the FEC quickly dismissed the evidence presented. Level the Playing Field filed another complaint demanding an explanation and/or a change to the rules. However, that same judge that ruled in their favor in 2017 dismissed the case in early 2019.

In their appeal, Plaintiffs have emphasized an urgency for the court to intervene as the presidential nomination process is already in full swing and there are only months before the first general election debate -- that is, if there are any general election debates at all.

Providing debate rules for fairer competition could have an even greater impact in 2020 as President Trump raised the possibility in December that he may skip the debates -- opening the door for an independent or third party candidate to share the debate stage with the Democratic nominee.

That will only happen, though, if the rules change. If the president chooses not to debate the Democratic nominee, as it stands now, it is much more likely that no debates will be held, thus denying voters an opportunity to hear from the candidates.

In US Elections, The Players Call the Balls and Strikes -- But New Efforts Emerge to Change That

Party interests control the primaries, the debates, gerrymandering, the two-sided media narrative -- the entire political process from top to bottom. Party interests even govern how elections are administered in every state across the country. 

In sports terms this is how rigged the game is:

• Only two teams can ever compete for the championship;
• These two teams write the rule book;
• They decide where the foul/out-of-bounds lines are;
• They control the commentary; and
• A member of one of the teams officiates the game.
  

They also sell the popcorn in the stands, set the ticket prices, and on and on the analogy could go. Imagine if the players got to call the balls and strikes in baseball -- that is the situation we have in US elections.

The issue is not confined to a single party, either. A Democratic secretary of state supervised the 2016 presidential primaries just weeks after he headlined a fundraiser for Hillary Clinton. The Republican governor of Georgia supervised his own election to the state’s top office, despite facing multiple lawsuits over voting rights issues and elections security and criticism over massive voter purges.

It is the case all over the country that people with a personal, political, and/or financial investment in the outcome of elections are overseeing said elections. So, in response, bills are emerging across the country to better ensure impartial administration and oversight over elections. The Election Reformers Network has identified 12 bills in 8 states that address this issue.

In Illinois, there are two bills -- H 3963 and H 3964. The first bill prohibits a member of the state elections board or their spouse from serving as an officer in a political committee or directing the funds of a political committee. The second is similar, but also bars contributions -- financial or otherwise -- between members of the state’s elections board and a political committee.

Two similar complementary bills have been proposed in the New York Assembly and Senate.

In Kansas, H 2508 requires the secretary of state to be elected on a nonpartisan basis and retire before seeking another political office. Similar bills have been proposed in Mississippi (two bills for the Election Commissioner), and New Mexico.

A bill died in Maine that would prohibit the secretary of state from overseeing an election in which he or she is a candidate. Legislation that requires chief elections officials to step down from their position before seeking another political office have also been proposed in Oklahoma and Tennessee (two bills).

Do you agree that the person in charge of our elections should be elected on a nonpartisan basis? Sign the Independent Voter Project's petition.

Also In Reform News…

• While Nevada just wrapped up its 2020 presidential caucuses, Republican State Sen. Ben Kieckhefer recently introduced a bill that would implement a nonpartisan top-two primary for statewide elections. similar to the systems in California and Washington state.
• The Alaskans for Better Elections initiative, which outlaws dark money, implements a nonpartisan top-two primary, and adds ranked choice voting to elections has met the qualifications to appear on the 2020 ballot.
• Another independent redistricting commission is being targeted by state lawmakers -- this time in Arizona. A new bill would limit the population gap between districts to 5,000 people. The Supreme Court has ruled up to 10% is constitutional -- which would mean about 20,000 Arizonans. Critics say this is an effort by the Republican majority to increase their majorities, while limiting the ability of minority communities to elect representatives of their choice.
  
  

Photo Credit: AP