Here's A Good Reason Against the Michigan Revote

Michigan has an open primary system, in which anyone can vote in a either party's primiary, without consequence, but if there is a re-vote (which has died in the MI Senate), then according to a memo by Obama lawyer Bob Bauer (who really is an expert on this stuff) hosted at Politico.com you could have a real constitutional question.

Although Michigan has always run open elections, which allow voters to vote in whatever primary they prefer, voters who participated in the Republican primary in January could not vote in the June election under the proposed law. This class of voters includes Democrats and Independents who chose not to vote in the invalid Democratic primary at the time because the majority of active candidates did not appear on the ballot and the results would not be accepted under party rules.

This provision raises a significant constitutional question and, along with it, the prospect for litigation that would undermine the perceived legitimacy of the election and bring preparations to a standstill under circumstances in which such delay is effectively fatal. The claim here could also be presented to the party, under party rules, with a similar effect of putting the election and its results in serious question.

The burden on voters here is one of complete disqualification—they cannot participate in the Democratic primary in June if they voted in the January Republican primary. Their claim of a violation of their rights would rest on the fact that that the state "changed the rules in the middle of the game." These voters' choice was entirely reasonable in the circumstances: there was no valid Democratic primary available to them at the time, and they could not know that, when their choice was made, that they were disqualifying themselves from participating in a re-run Democratic primary this year that they could know would be held.

Moreover, the state will have difficulty justifying this disenfranchisement by reference to any legitimate state interest. Michigan cannot argue that it wants to limit the June primary to those who are genuinely Democrats, because it has always run fully open primaries. Voters, in other words, have a state-conferred right to vote in the Democratic party no matter what their affiliation. The primaries in January were fully open; and the decision to close them in June will not easily stand constitutional scrutiny. In any challenge, Michigan will be criticized for proposing a re-run without, in effect, restoring to voters the original choice they had—whether to participate in a meaningful Democratic primary.

In other words, the proposal offers a re-run for the State but not for all the voters. The state will have to assert an interest sufficient to justify this infringement on the voting rights of its citizens. Its challenge will be to show how, when the state is seeking to remedy a problem of its own making—failure in the first instance to observe party rules on timing—it can somehow discriminate against groups of its own citizens.

The State is also vulnerable to challenge under the party rules. Since any Republican or independent who did not vote in January in the Republican primary is fully free to participate in the June primary, the effect of the proposal is to enfranchise a class of Republicans while disenfranchising a class of Democrats—the ones who chose to vote in the Republican primary when they correctly understood that the Democratic contest was meaningless. A challenge along these lines would consume time, when time is not available, and it is not clear that the party would or could approve this exclusionary feature even if the participating candidates were to agree to it. The DNC would subject itself to legal action if it proceeds with approval of the plan with these terms included.

Sound complicated, it really isn't.

If a revote is to be had, the only people eligible to vote would those voters who did not vote in January. That would include the specific category of Democratic voters who knew in January that their votes would count in the Democratic primary who voted in the Republican Primary. The problem for the state is to show a compelling state interest from denying any voter the opportunity to vote in June--a very tough--almost impossible showing in election law.

Of course it doesn't really matter since the MI Senate killed the re-vote bill.

Hat Tip: Prof. Hasen.