5th Circuit upholds Miss. political primary system

Thursday, May 29, 2008

JACKSON, Miss. — The 5th U.S. Circuit Court of Appeals yesterday overturned a ruling that would have forced Mississippians to register by political party and show photo identification at the polls to be able to vote.

U.S. District Judge Allen Pepper in Mississippi ruled last year that the state should re-register all voters to allow people to declare themselves as Democrats, Republicans or members of another party. Or, Pepper said, people could register as unaffiliated with any party. Pepper had said Mississippi must restructure its party primary system by Aug. 31, 2008.

Under current law, Mississippians do not declare a party affiliation when they register to vote.

Pepper had also ordered the state to enact a voter-identification law in time for the 2009 elections.

The Mississippi Democratic Party, which brought the lawsuit in 2006 seeking to keep nonparty members from voting in its primaries, appealed Pepper's ruling. Some black Democrats have complained that whites sympathetic to Republicans have been voting in the Democratic primaries.

Joining the Democrats in the appeal were the National Association for the Advancement of Colored People, the state and the Mississippi Republican Party.

Ellis Turnage of Cleveland, attorney for the Democratic Party, was not available for comment for this story.

Brad White, executive director of the Mississippi GOP, said yesterday’s decision in Mississippi State Democratic Party v. Barbour puts everyone back to where they were before the Democrats' lawsuit.

“We continue to say our primaries are open to all individuals who share our beliefs and support Republican candidates. We're not about making it more difficult for people to vote in our primaries,” White said.

The New Orleans-based 5th Circuit said Pepper's ruling spawned a free-for-all on appeal.

The unanimous three-judge panel noted the Democratic Party had appealed the mandatory photo-ID requirement. The GOP appealed on grounds that Pepper's order brought Republicans into a lawsuit they did not support. And attorneys for the Mississippi NAACP opposed the voter-ID and re-registration portions of Pepper's order.

There also were briefs filed by the attorney general, the governor and the secretary of state.

“The state is divided… .We will put the parties out of their litigation misery,” Chief Judge Edith H. Jones wrote for the panel.

Mississippi NAACP President Derrick Johnson said he was pleased the voter-ID provision was overturned.

“We see it as a victory for the state of Mississippi that the process worked where elected representatives for the House and Senate set policy for the state and not activist district court judges,” Johnson said.

The Mississippi Legislature is meeting in special session, and Republican Gov. Haley Barbour is asking them to enact a voter-ID measure. The proposal passed the Senate last week on a vote largely split along racial lines, but a House committee plans to ignore the issue and kill it.

“The governor remains committed to voter ID as the best means of ensuring fair and fraud-free elections,” Barbour spokesman Pete Smith said yesterday, responding to the 5th Circuit ruling.

Attorney General Jim Hood applauded the decision.

“It is the state Legislature that has the authority to review and change, if necessary, our state's primary laws,” Hood said in a statement. “It is up to our state Legislature to decide whether or not we require voter identification.”

Jones wrote that if the Democratic Party had taken steps to keep non-Democrats out of its primaries and been stopped, then the party would have had grounds to sue under the First Amendment’s right of association.

“It is certainly conceivable, for instance, that the party's mere public announcement of its intent to challenge suspected non-Democrat voters would discourage raiding attempts,” wrote Jones.

However, Jones said whether state law permits party raiding could only be determined if the Democrats tried to stop someone from voting in its primaries.

Jones said the “open-ended nature of the dispute” led Pepper to propose a political remedy.

“When MSDP actually decides to adopt a closed primary, and when the implementation of state law has a demonstrated impact on the conduct of primary elections, a justifiable case or controversy will exist,” the 5th Circuit said.

Yesterday's ruling was issued by a panel of three 5th Circuit judges — Jones, W. Eugene Davis and Emilio M. Garza.

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